MANTEC WATER TREATMENT NIG., LTD. V. PETROLEUM (SPECIAL) TRUST FUND (2007)

MANTEC WATER TREATMENT NIG., LTD. V. PETROLEUM (SPECIAL) TRUST FUND

(2007)LCN/2223(CA)

In The Court of Appeal of Nigeria

On Thursday, the 8th day of February, 2007

CA/IL/9/2006

RATIO

EVIDENCE: WHAT IS EXPECTED OF THE COURT WHERE A PIECE OR PARCEL OF EVIDENCE IS ELICITED BY A PARTY AND IT IS NOT CHALLENGED

The law is that where a piece or parcel of evidence is elicited by a party and such is neither challenged nor controverted the court is bound to ascribe credibility to it except if it is inherently incredible or offends rational conclusion or state of physical things. PER MUNTAKA-COOMASSIE, J.C.A.

INTERPRETATION OF STATUTE: INTERPRETATION OF SECTION 316 (1) AND SECTION 317 OF THE 1999 CONSTITUTION

See for instance Sections 316(1) and 317 of the 1999 Constitution of the Federal Republic of Nigeria. They are hereunder reproduced thus:- “316-(1) Any office, court of law or authority which immediately before the date when this function comes into force was established and charged with any function by virtue of any other Constitution or law shall be deemed to have been duly established and shall continue to be charged with such function until other provisions are made, as if the office, court of law or authority was established and charged with the function by virtue of this Constitution or in accordance with the provisions of a law made thereunder. 317 (1) Without prejudice to the generality of section 315 of this Constitution, and property, right, privilege, liability or obligation which immediately before the date when this section comes into force was vested in, exercisable or enforceable by or against:- (a) the former authority of the Federation as representative or trustee for the benefit of the Federation; (b) any former authority of a State as representative or trustee for the benefit of the State, shall on the date when this section comes into force and without further assurance than the provisions hereof vest in, or become exercisable or enforceable by or against the President and Government of the Federation, and the Governor and Government of the State, as the case may be.” By these provisions, any liability or right which might have accrued to the Federal Government or any of its Agencies before the coming into effect of the constitution shall he deemed to have been inherited by the successors to the former Government. Section 316 on the other hand, saved pre-existing authority prior to the constitution PER MUNTAKA-COOMASSIE, J.C.A.

JUSTICES

MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE Justice of The Court of Appeal of Nigeria

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

Between

MANTEC WATER TREATMENT NIG., LTD. Appellant(s)

AND

PETROLEUM (SPECIAL) TRUST FUND Respondent(s)

MUNTAKA-COOMASSIE, J.C.A. (Delivering the Lead Judgment): The plaintiff in his amended Statement of Claim dated 9/2/2001, claimed against the defendant as follows:-
(i) A DECLARATION that by failing to pay to the plaintiff the sum of N416,166.00 due and owing to her for works properly carried out under the contract between the Defendant and the plaintiff, the Defendant is in breach of contract and the plaintiff is entitled to damages for loss of profit;
(ii) The sum of N5, 000.000, being general damages for breach of contract and loss of profit.
(iii) The sum of N416, 166.00 being outstanding sum due and payable to the plaintiff for work properly carried out and certified under the contract between the Defendant and the plaintiff.” See pages 35 – 37 of the Record.
The defendant filed its Statement of defence dated 28/6/2002 wherein he counter-claimed against the plaintiff as follows:-
“WHEREOF the Defendant counter-claims against the plaintiff the sum of N13, 089,349.69k, being the excess money paid by Defendant to the plaintiff over and above the value of Job done by the plaintiff”. See pp. 12 -14 for the Statement of defence and counter-claim of the Record.
As a result of the Counter-Claim, the plaintiff filed a reply to the Statement and defence to counter claim, dated 15/10/2002. Both parties thereafter called their respective witnesses.
Plaintiffs PW1, John Okulola Dairo, is the plaintiff’s Managing Director and he knows the Defendant who is a Statutory body who carries special project for the Federal Government. He stated that the Defendant awarded to the plaintiff rehabilitation of Old boreholes and construction of new ones in Kwara State, for a total sum of N53.8 Million, which was reviewed to N54.4m. The letter of the award of contract dated 4/5/98 between the plaintiff and the defendant was admitted in court as Exhibit 1.
The plaintiff moved to the site, which covered seven Local Governments, each having five (5) boreholes. The defendant engaged a Consultant who Counter-signed the pump-test carried out by the plaintiff. The file containing the pump test carried out was admitted as Exhibit 2.
PW 1 also stated that he is a registered Engineer. He testified that the total value of the work done was N39.8m. The Bills of quantity of the job done which was contained in a file was tendered as Exhibit 3.
The defendants paid a total N39.4m leaving a balance of N416, 000.00. In October 2001, the plaintiff received a letter alleging that she had been overpaid to the tune of N12m and asking for refund; which letter was sent to the plaintiff’s lawyer for reply. The reply was tendered in court as Exhibit 4. He denied that the plaintiff stopped work when the amount due was N26m.
Under cross examination he stated that plaintiff was incorporated in 1985. He also stated that Advance Payment is customary in it’s relation with the Defendant, and that the N39m paid the plaintiff was an advance payment, and that it was agreed that work would be done and Certificate would be raised while deducting money from the advance payment. He denied that evaluation of the job done was carried out.
The defendant called DW1, one Buba Bogama Godabe, and a Civil Servant who knows the plaintiff. He agreed that the defendant awarded the contract for sinking of boreholes to the plaintiff in 1988 and the total contract sum was N54, 413,127.45k and a total sum of N39, 433,124.69k was paid by the defendant to the plaintiff. This amount was paid in three installments as advances to tile plaintiff. Advances arc moneys released by the employer to the contractor to enable the contractor execute the jobs and in this case these moneys were released sequent to Certificate prepared based on input supplied by the contract. The Certificate raised with the Voucher of payment are admitted as Exhibits 7, 7A & 7B, and 8A and 8B respectively. Further payment has been stopped. P.T.F. was scrapped and all projects suspended and stopped. As at stoppage of work the total value of the work done by the plaintiff was N26, 365,775.00k that was covered by Certificate No.3 i.e. Exhibit 7C. The total value of work done was on Exhibit 7B. P.T.F. advances N39m and the plaintiff only justified N26m, and the balance outstanding in favour of the defendant is N13, 067,349.69k. He testified that Exhibit 3 was prepared by the plaintiff itself. Some of the items in Exhibit 2 were countersigned by the defendant’s Consultant while some were not signed particularly pages 133 – 142. He also stated that Certificate Exhibit 7B took care of all the aspects of the plaintiffs work.
Under cross examination this witness admitted that he is a lawyer and not an engineer. Though he had no training in quantity Surveying but he read the records and they were under his care. He stated that Bills of quantity is the 1st step taken by the Contractor and supplied to the employer, while the 2nd stage is the total value of what is to be executed quantified by the employee and finally the employer raises a Certificate certifying those bills, thereafter releases money as advances to cover the Bill as in Exhibits 6, 7 and 8. He stated however that Exhibit 3 is not known to the defendant because it is not signed by the defendant. The reports of the Consultant on which Certificate i.e. Exhibit 7B was issued were tendered as Exhibits 9, 9a, 9b and 9c. The above is the brief of what had transpired in court. See pp.40 – 50; and pp. 51 – 57 of the Record of Proceedings.
The parties thereafter closed their respective cases and submitted written addresses. See for the defendant’s address pp.61-66; and pp.67 -74; and the defendant’s reply on PP.75 -77 of the Record.
The trial Judge in a considered judgment delivered on 29/7/2005 wherein he dismissed the plaintiff’s case and granted the defendant’s counter claim. See pp. 80 – 96 of the Record of proceedings. In conclusion, the learned trial Judge held on p. 96 thus:-
“In contrast to the Oral and documentary evidence produced by the defendant, the plaintiff has no thing that can match the defendant’s position. Exhibit 3 relied upon by the plaintiff was described by the defendant as in house job by the plaintiff herself. I agree with this contention as it was not counter signed by the officials of the defendant to clothe it with agarb of authenticity.
I therefore reject the claim of plaintiff for an Extra sum of N416, 166.00 being outstanding sum due and payable to the plaintiff for work carried out by the plaintiff for the defendant. Rather I accept the Claim of the defendant that it advanced the sum of N39, 433,124.69 in 3 installments and the work done eventually was in the sum of N26, 365, 775.00.
The plaintiff is therefore hereby ordered to pay back to the defendant the sum of N13, 069,349.69 being the excess money paid by the defendant to the plaintiff.
Being dissatisfied with this decision, the plaintiff hereinafter called the appellant appealed to this court by a Notice of appeal dated 14/10/05 containing six grounds of appeal, they are reproduced hereunder without their particulars thus:-
“GROUND ONE: ERROR IN LAW
The learned trial judge erred in law when he purported to take judicial notice that “PTF has been scrapped contrary to the true situation and this has occasioned a miscarriage of justice.
GROUND TWO: ERROR IN LAW
The learned trial judge erred in law when he held that the defendant has been scrapped when there was no evidence of such before the court.
GROUND THREE: ERROR IN LAW
The learned trial judge erred in law when he held that PTF has been scrapped at one breath and at another proceeded to make award to the body that was no longer in existence and thereby occasioned a miscarriage of justice.
GROUND FOUR: ERROR IN LAW
The learned trial judge erred in law when he held that the value of work done by the plaintiff was only worth N26, 365,775.00 when there was no evidence from the defendants to show the extent of work that had been executed.
GROUND FIVE: ERROR IN LAW
The learned trial judge erred in law by dismissing the Plaintiff’s claim without properly evaluating the evidence before him and thereby came to a wrong conclusion leading to a grave miscarriage of justice.
GROUND SIX: ERROR IN LAW
The judgment is against the weight if evidence. Other grounds of appeal may be filed upon the receipt of the record of appeal.”
In accordance with the Rules of this court Order 6RR2 & 4 of the Court of Appeal Rules both parties filed and exchange briefs of argument. The appellant in its Brief of argument dated 4/4/06 and filed on 6/4/06 formulated three (3) issues for determination as follows:-
1. Whether the Petroleum Special Trust Fund has been scrapped.
2. Whether it is proper to grant judgment in favour of a party that has been scrapped and ipso existent.
3. Whether the value of work done by the appellant was Only N26, 365,775.00 in view of the evidence before the court.”
The defendant, hereinafter referred to as respondent, in its Brief of argument dated and filed on 27/10/06 also formulated three (3) issues for determination thus:-
(i) Whether the learned trial judge was in error when he took judicial Notice of the fact of the scrapping of the Respondent by the Federal Government of Nigeria.
(ii) Whether if the answer to issue I above is negative, such an error is sustainable to have changed the course of proceedings at the trial court in favour of the Appellant; and
(iii) Whether by the available evidence before the trial court oral and documentary was the trial court not right to have preferred the case of the Respondent by granting its claims,”
Now to the arguments and the submissions of both counsel on the issue submitted to us.
The appellant, on issue No. I, submitted that the defendant is a creation of a statute i.e. Petroleum Special Trust Fund Decree No.25 of 1994, which has not been replaced and as such it is still existing. That a government directive scrapping it without repealing the statute is not sufficient. Therefore, a court cannot take judicial Notice of such directive without the production of the statute enacted by the Legislature repealing or scrapping it.
The appellant pointed out that throughout the proceedings the respondent never challenged the competency of the action on the ground that the defendant was no longer in existence. He urged this court to hold that P.T.F. is very much alive. This court should therefore answer issue 1 in the negative and to allow grounds 1 and 2.
On the second issue the appellant submitted that if the defendant/respondent was no longer in existence, the trial court would be wrong to have made an award in favour of a non-existing body. He cited the cases of MANAGEMENT ENTERPRISES LTD. V. OTANSANYO (1987) 1 NSCC (VOL.19) 577 AT 584; and BANK OF BARODA V. IYALABANI LTD. (1998) 2 NWLR (PART 539) 600 AT 613. It was therefore submitted that the proper Order the lower court should have made was to strike out the case. He relies on the following cases:-
MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR 587 AT 595 Learned counsel again submitted that where a party to a case dies, the action becomes incompetent unless steps were taken to substitute the dead party with another person. He drew our attention to the following authorities. BINTUMI V. FANTAMI (1998) 13 NWLR (PART 581) 254/271; AKUMOJU V. MOSADOLORUN (1991) 9 NWLR (PART 214) 236.
On the third issue, the appellant submitted that it was wrong for the lower court to have preferred the evidence of DW1 to that of PW1, when DW1 is not an engineer but a lawyer who is not an expert on the subject matter of this case. He referred to Exhibits 1, 2 and 3 and submitted that the evidence of PW1 on the value of the job done was overwhelming. The Interim Certificate which DW1 tendered only showed the payments made to the appellant i.e. Exhibits 6, 7 and 8. It was therefore submitted that Exhibits 6, 7 and 8 could not be evidence that the total value of work done was N26, 365,775.00k. He submitted again that there was no magical powers in the words “I believe” or “I prefer” there must be good reason for believing or disbelieving” the evidence from any side. He relies on the case of AKPORENYE V. OKUMAGBA (1999) 1 NWLR (PART 586) 271/281. It was therefore submitted that the trial court did not show any reason for preferring the evidence of DW1 to that of PW1. He therefore urged us to allow the appeal.
The respondent submitted on issue 1 that the Federal Government came out with a policy at its inception to scrap the activities of PTF and render its activities moribund (no longer active). Hence the trial court ought to take judicial Notice of the government policies. He referred to Section 73 (2) of the Evidence Act and submitted that the trial court ought to take judicial notice of matters of history. He cited the cases of UWAIFO V. A-G BENDEL STATE & ORS (1982) 7 S.C. 124; MAURICE DUNGBO V. CHIEF STEPHEN IDUGBOE (1983) 2 S.C. 14 to support a situation where the courts took judicial Notice as a fact of Local history. It was thus submitted that the scrapping of the respondent only affect the functions to be carried out.
On the 2nd issue, he submitted that if the trial court was wrong to hold, as it did, that the Respondent had been scrapped, which is denied, such an error is not sufficient to render the proceedings or the judgment being set aside by this court it is not every error or mistake contained in a judgment that will result in an appeal being allowed. The eases of AJUWON V. AKANNE & 1 ANOR (1993) 9 NWLR (Pt. 316) 152 AT 205; B & C KRANS THOMPSON ORGANISATION LTD V. UNIVERSITY OF CALABAR [2004] 4 S.C. (PART 165) 77 were cited.
On the third issue, it was submitted that the trial court Judge properly evaluated the evidence of both parties before making his findings. He referred to the trial court’s findings on Exhibit 3 that was on-in-house-job, was supported by the evidence and this fact that it was not counter-signed by the respondent. The respondent’s counsel cited the cases of ONISADOA V. ELEWAYS (2006) 7 S.C. (PART 11) 53; and MAGAJI AND ORS V. ODOFIN (1978) 4S.C. 91 AT 93. The respondent then urged this court to dismiss the appeal.
Firstly, the paramount issue in this case, is to examine the oral evidence adduced by the parties along side, Exhibits 3, 7, 7A, 7B, 7C, 8, 8A, 8B, 9, 9A, 9B and 9C, and to determine whether the holding of the trial court that the appellant has not worked up to the amount of N39, 8m paid to the appellant as advance payment is correct.
The fulcrum of Issue No.1, in both Briefs is the same. It was submitted by the appellant that the Petroleum Trust Fund hereinafter referred to as P.T.F. is a creation of a statute by virtue of Decree No. 25 of 1994 now contained in the latest volumes of the Laws of the Federation as Cap. 14. Another interesting contention is that of the appellant’s counsel to the effect that P.T.F. has not been scrapped, it is still intact and it remains a body corporate with the perpetual succession and may sue and be sued in its corporate name. If it is a fact that it has been scrapped it would not remain in the most recent volumes of the Laws of the Federation. Learned counsel forcefully also submitted that if it was scrapped which law did that? Counsel further argued that an act had repealed it, therefore the trial court should not have taken Judicial Notice of its scrapping.
On the other hand learned counsel for the appellant contended that the evidence of DW1 to the effect that the Federal Government directed that P.T.F. be scrapped and all the projects suspended and stopped is a mere viva voce evidence of the witness without producing or tendering of the enactment or statute that scrapped the body. That cannot be correct and the court should not accept it and rely on same to decide this case the way it did. He further contended that the same DW1 testified lo the effect that he is a Civil Servant serving with the defendant (P.T.F) this points to the fact that P.T.F. was still in existence at the time the trial court considered and delivered its judgment. Learned counsel for the appellant slightly attacked the position taken by the lower court which says that the scrapping of the P.T.F. is a notorious fact in this country that court cannot but take judicial notice of it. He submitted that the court went out of its way and considered extra judicial matters which it heard and observed without having before it a law which repeals it. He relied on the case of KWARA INVESTMENT CO. LTD. VS. GARBA (2000) 10 NWLR (PART 674) 25/33 and urged us lo hold that until a corporate body is wounded up it continues to retain its corporate identity given to it by its enacting (parent) law.
The phrase used by the learned counsel to the respondent and the trial court appears to me difficult for any meaningful meaning. The word scrap or scrapping may only mean discarding or removing. It sounds very narrow.
Scrapping means to decide not to use a plan, system or institution because it is not particular or even to get rid of an old machine, vehicle etc, and use its parts in some other way. See p. 127 of Longman Dictionary of Contemporary English.
Learned counsel for the respondent under the same issue contended per contra citing Section 73(2) of the Evidence Act to submit that the thrust of the scrapping of the activities of the respondent which is notorious to the general public that the trial court was justified in taking judicial Notice of scrapping of the P.T.F. Referring to F.S. UWAIFO V. A-G BENDEL STATE & ORS. (1982) 7 S.C. 124 and MAURICE DUMGBO V. CHIEF STEPHEN ONGBOE (1983) 2 S.C. 14 where the court took judicial Notice of the fact that upon coming into power the Federal Military regime dismissed and removed many public servants from their offices. Learned counsel cited the case of A-G LAGOS V. HON. DOSUNMU (1989) 3 NWLR (PART 111) AT 552 to submit further that on a matter of administrative policy of government that courts are precluded from taking a stand capable of negating the effectiveness of and functioning of such policy. He urged the court to hold that the learned trial judge was right to have taken judicial Notice of the facts of scrapping the respondent.
On the equation of the P.T.F. with a corporation under the Companies and Allied Matters Act 1990 (CAMA) and the submission of the learned counsel to the appellant that by the scrapping of the respondent she ceased to exist and the illegal award of the judgment on the counter claim to the said respondent it was the respondent’s contention that taking into consideration the definition of the word “scrap” that that word does not envisage complete extinction of the respondent but that it is akin to an unhealthy corporation which is not stripped of its right to sue and be sued. He relied on the case of:-
INTERCONTRACTORS (NIG) LTD V. N.P.F. (1988) 2 NWLR (PART 76) … based on the Supreme Court’s decision in the above case learned counsel then submitted that this court should hold that the decision of the Federal Government on the respondent to suspend its activities would only affect future activities and not past activities which had been carried out prior to the suspension.
Relying on the evidence of DW1 at page 52 of the Record he submitted on the authority of F.B.N. PLC. V. ONOKO KOGA (1999) 12 NWLR (PT. 950) 120 that the conclusion of the trial Judge on the facts of scrapping of the respondent was done upon the uncontroverted evidence of the Dw1 which was deemed admitted by the plaintiff and should not be made an issue on appeal. He therefore urged this court to uphold the decision of the trial judge and dismiss the appeal.
Throughout the proceedings the fact that the P.T.F. was scrapped has not been directly thrashed out by the parties. However it was pleaded in paragraph 11 of the statement of defence that:-
“11. The Defendant in answer to paragraphs 13, 14 and 15 of the Statement of claim (sic) that it did not breach any of the terms of the contract and that the stoppage of the project was occasioned by force majeure, details of which fact will be led at the trial.” This I hold has alluded to the fact of scrapping the P.T.F.
It is at page 52 of the Record of Proceedings however that the respondent’s witness (the DW1) in the course of his evidence in-chief, after tendering receipts and payment vouchers with which monies were paid to the plaintiff stated thus:-
“The payment has been stopped. It is a Federal Government directive; Petroleum Trust Fund was scrapped and all projects were suspended and stopped.”
Neither the plaintiff nor her counsel made any effort to challenge the above testimony of the DW1, the trial court had therefore the right and bounding duty to accept same as the truth and state of affairs on the contested issue. The law is that where a piece or parcel of evidence is elicited by a party and such is neither challenged nor controverted the court is bound to ascribe credibility to it except if it is inherently incredible or offends rational conclusion or state of physical things.
In the case at hand, the plaintiff/appellant nay his counsel had every opportunity to cross-examine the said witness but failed to do so and the court rightly believed the truth of the evidence. See:-
MAINAGGE V. GWAMNA (2004) ALL FWLR (PART 222) 1617 AT 1626;
OMOREGE V. LAWANI (1980) 3 – 4 S.C. 108;
OKOEBOR V. POLICE COUNCIL (2003) FWLR (PART 164)198;
ASAFA FOODS FACTORY V. ARLAINE (NIG) LTD. (2002) FWLR (PART 125)75.
The learned counsel for the respondent was therefore on a firm ground when he contended that the appellant ought to have made the scrapping of the respondent an issue of appeal, relying on the case of F.B.N. PLC V. OWOKO KOGA Supra.
Be that as it may the learned trial judge, at page 94 of the Record, seemed to have based his decision also on judicial notice which is a matter of law.
The question to be paused and answered now is whether the issue of “Scrapping” of the P.T.F. is a fact to have taken judicial Notice of without the production of the law or even the “Proclamation” from Mr. President to that effect. Ordinarily by virtue of Section 74(2) of the Evidence Act the courts are enjoined to in all cases in subsection (1) on matters of Public History, Literature, Science or Art to resort for its aid to the appropriate books or documents of reference on the subject.
Under subsection (3) thereof the court, if called upon by any person to take judicial Notice of any fact, may refuse to do so unless and until such person produced any such book or document as it may consider necessary to enable it do so.
In the present case, neither the law nor document which scrapped the P.T.F was tendered neither did the court insist on the production of same. The law allows him the discretion to take judicial notice of historical events in this country and whether the Petroleum Trust Fund has been scrapped or not is immaterial, even the defendant/respondent who relied on the fact of scrapping of P.T.F. in her defence has turned somersaulted by introducing the issue of un-healthy corporation and receivership/liquidation of the P.T.F.
He has indirectly made a salient point when relying on the case of INTERCONTRACTOR (NIG) LTD. V. N.P.F. (1988) 2 N2LR (PART 76) submitted that the scrapping of the respondent does not affect past functions or activities carried out by the respondent.
My Lords, since the trial court relied on the contradicted evidence of the DW1 in its judgment, the issue of judicial Notice in immaterial to the determination of the appeal, as the respondent has not extinguished its existence. They also agree that the right and liabilities that accrued to the appellant and the respondent have not been extinguished as far as the contract, the subject matter of this suit, is concerned.
I am strengthened on the stance we took by the constitutional and statutory provisions. See for instance Sections 316(1) and 317 of the 1999 Constitution of the Federal Republic of Nigeria. They are hereunder reproduced thus:-
“316-(1) Any office, court of law or authority which immediately before the date when this function comes into force was established and charged with any function by virtue of any other Constitution or law shall be deemed to have been duly established and shall continue to be charged with such function until other provisions are made, as if the office, court of law or authority was established and charged with the function by virtue of this Constitution or in accordance with the provisions of a law made thereunder.
317 (1) Without prejudice to the generality of section 315 of this Constitution, and property, right, privilege, liability or obligation which immediately before the date when this section comes into force was vested in, exercisable or enforceable by or against:-
(a) the former authority of the Federation as representative or trustee for the benefit of the Federation;
(b) any former authority of a State as representative or trustee for the benefit of the State,
shall on the date when this section comes into force and without further assurance than the provisions hereof vest in, or become exercisable or enforceable by or against the President and Government of the Federation, and the Governor and Government of the State, as the case may be.”
By these provisions, any liability or right which might have accrued to the Federal Government or any of its Agencies before the coming into effect of the constitution shall he deemed to have been inherited by the successors to the former Government. Section 316 on the other hand, saved pre-existing authority prior to the constitution. Thus, assuming, as was contended earlier, the concession by the learned counsel for the respondent, that the P.T.F. was scrapped and therefore was no more in existence could the scrapping have affected contracts duly entered into by the said body or authority? I think not. It was submitted that the sections above quoted were inserted in the constitution to avoid situations like we have found ourselves in where the P.T.F. had entered into a contract with the plaintiff/appellant for sinking of boreholes and repairing of old ones and the plaintiff contends that it has performed its part of the bargain (contract) and is entitled to the contract price whereas the defendant/respondent pleads force majuere to defeat the claim of the plaintiff/appellant.
It is clear and I agree with the respondents’ counsel submission to the effect that the scrapping of P.T.F. would not affect contractual obligations entered into prior to the scrapping exercise.
To further support this position, Section 6(1) of the Interpretation Act Cap 192 Laws of the Federation of Nigeria explicitly states that:-
“S.6(1) The repeal of an enactment shall not:-
(a) …
(b) affect previous operation of the enactment or anything duly done or suffered under the enactment.
(c) affect any right, privilege, obligation, or liability accrued or incurred under the enactment.
(d) affect investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability … and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and such penalty may be imposed as if the enactment had not been repealed. See OLUTOLA V. UNILORIN (2004) 18 NWLR (PT.705) 416 S.C.”
I have therefore carefully considered the submissions of both counsel and regret to say that the trial judge’s stance could be dangerous. It lacks consistency. As could he gleaned from the judgment the learned trial judge held in one breath that the respondent had been scrapped and perhaps repealed and the contract between the parties were thus frustrated but continued to dish out judgment in favour of the scrapped party by granting its counter-affidavit in the sum of “N13,067, 749.69. I should have thought that since the P.T.F. was scrapped and dead the trial court or the respondents’ counsel should have taken steps to cause “Substitution” to be effected. Since the P.T.F. as it stood then lacked capacity to sue and definitely that court lacked the jurisdiction to hear the matter as such-
MADUKOLU V. NKEMDILIM SUPRA and MANAGEMENT ENTERPRISES LTD V. OTUNSANYA (1987) 1 NSCC (VOL.18) 577 AT 584 and BANK OF BARODE V. IYELABAIN LTD. (1998) 2 NWLR (PART 539) 600/613.
That being the case, and considering issues 1 and 2 in the appellant’s Brief I hold that it may not be proper for the trial court under the circumstances of this peculiar case to hold that P.T.F, has been scrapped or repealed. It was only made impotent and moribund. Its future activities are affected and cannot be properly exercised. Its previous activities cannot be jettisoned.
My Lords, we just have to answer the appellant’s issues one and two negatively. I hold therefore that the judgment of the trial court wherein he granted the counter-affidavit of the respondent must and is hereby set aside.
On issue No.3, learned counsel on behalf of his client contended that it was wrong for the trial court to have preferred the evidence of DW1 to that of PW1. I think I will agree with the stance taken by the appellant’s counsel. First the evidence of the DW1 is shaky and never credible. He testified in an area which he is a stranger. He is not an engineer by profession. How can he correctly testify to have knowledge? I agree that Dw1 is a lawyer by calling; he can possibly provide skillful evidence and ex partee in a legal issue, because he belongs to a legal and noble profession. It is a misplaced priority for any court to accept and rely on evidence of an engineer or non-lawyer in a matter which requires strictly legal knowledge.
Above all, the PW1 testified consistently vis-Ã -vis the value of the work done by the plaintiff/appellant. I accept the fact that exhibits 6, 7 and 8, therein tendered clearly showed the payments only made to the appellant, namely, N26,365,775.00k I looked at these exhibits and discovered that they are only concerned with the amount paid to the plaintiff by the defendant and not on the value of the job done by the appellant herein. The evidence of PW1 in court is self explanatory and over whelming that the plaintiff has worked assiduously and the defendants personals had certified to that effect. The details of the contracted for together with the cost of is as contained in the exhibit one tendered by the plaintiff witness while testifying and there was no resistance and or objection emanating from the defendant. There is no scrap of challenge to this evidence and no cross-examination was forth-coming. I think since the respondent refrained from cross-examining the PW1 on that issue I think this court is entitled to hold that PW1 told the court the truth. (Underlining by me). AMADI V. NWOSU (1992) 5 NWLR (PART 241) 273 AT 284 where Nnaemeka-Agu JSC has this to say:-
“It is settled principle of law that where an adversary or a witness called by him testifies on a material fact in controversy in a case, the other party should, if he does not accept the witness’s testimony as true, cross-examine him on that fact, or at least show that he does not accept the evidence as true.
Where as in this case, he fails to do either, a court can take silence as an acceptance that the party does not dispute the facts. After all, one of the veracity of a witness. See AJAO V. AJAO (1986) 5 NWLR (PART 45)802 …”
Also in the case of BIJOU (NIG) LTD. OSIDAROHWO (1992) 6 NWLR (PART 249)643/651, ADIO JSC held thus:-
“Evidence which is unchallenged and uncontradicted ought to be accepted if found credible as there is nothing on the other side to balance.”
The evidence of PW1 in court is overwhelming as to the detail work done in line with the contents of the contract entered by the parties, namely, the contract was for the construction of 35 boreholes and the renovation of 35 old ones in seven Local Government Area in Kwara State. Being an Engineer the PW1 described the process involved in both the construction of a new borehole and the renovation of the old one, with their respective costs were displayed in a minute details in exhibit 1. DW1, not being an engineer, testified that he is ignorant of the process involved in digging of boreholes.
Furthermore, the plaintiffs witness testified to the extent of work accomplished in the Seven Local Government Areas and state the pump tests carried out on the boreholes. It is amazing and at the same time satisfactory for one to have a look at Exhibits 2, 3, 4 and 5. He compared the original work awarded them and the work or job executed and their costs. PW1 also stated that they dug the total depth of 1,386 metres. I therefore hold that the defendant on the face of exhibit 3 cannot but accept that the appellant had dutifully performed what was expected of him under the contract. It is clear also from the defendants’ evidence of DW1 that it was the P.T.F. consultant who prepares, after supervision of the work, the valuation report without in put from the contractor and that the contractor is paid based on the valuation report issued by the defendant consultant. The defendant/respondent therefore under paid the plaintiff to the time of N416, 166,00, having executed job of which value is N39,849,290.00. The evidence of the respondent and their submissions lack credibility. Same is discarded and rejected.
Taking into consideration the evidence of DW1 and the total submissions of the respondents’ Brief on the issues formulated by them and the submissions of the appellant’s counsel I hold that all the issues are negatively answered. The counter-claim has no leg to stand on, same is therefore dismissed. The balance of the work done and certified by the defendants’ supervisor and consultant N416, 166.00 is outstanding in favour of the appellant and must be paid to the plaintiff, now appellant.
What remains to decide is whether or not the appellant is entitled to any damages, special or general. The amount being paid to the plaintiff, by the evidence, is advance payment to enable the plaintiff execute the contract. Both parties are ad idem on this point. There is no acceptable evidence therefore to suggest that the plaintiff borrowed money to execute the work done, the issue of interests to be charged on the amount borrowed by the lender does not arise. See exhibit 7B and 7C. I hold in passing that there is no significant evidentiary value to be attached to the piece of evidence in exhibit 3 to the effect that it was an in-house job. It has no meaning to us. In the case at hand there is no credible oral evidence to challenge the documentary evidence so the issue of making the documentary evidence as a hanger to assess the oral evidence does not arise at all. That being the case, ABATAN V. AWUDU’S case supra is not apposite. I agree also that the contract was repudiated deliberately by the Federal Government so to speak by making the P.T.F. impotent. The stoppage can not in any way be described as a result of force majeure they only tried to escape its obligations under the contract by claiming force majeure. I think there is a fundamental breach on the part of the respondent. In a normal situation where the contract was repudiated by the defendant one would have considered the loss of profit which the plaintiff would otherwise have earned. This is however abnormal situation where the defendant in its magnanimity allowed advance payment, similar to mobilization fees, and to maintain the posture lip to the end. The plaintiffs did not deny the fact that they enjoyed this advance payment throughout and could not adduce evidence that they have gone borrowing. Moreover there is no evidence of the interest rates charged. The facts of this case are different from that of UKOHA V. OKORONKWO (1974) NSCC (VOL.7) 367 AT 371 cited by the appellant in the lower court.
I must say that the appellant cannot even dream of having special damages from this court. The law, I think it goes without saying, is whoever wants special damages must endeavour to prove it strictly and specifically. There must be evidence in court to establish clearly that he suffered such damages as he claimed. In other words the person claiming such special damages must establish his entitlement to that type of damages by credible evidence otherwise the general acceptable law of evidence as to proof by preponderance or weight usual in civil cases operates. I am fortified by the decision of the Supreme Court in the case of SHINJIRIN V. ELIAS (1970) 1 ALL NLR 153 AT 156 per Coker JSC.
In fact what is required is qualitative and credible evidence in order to establish entitlements to special damages. See ODULAJA V. IIADDED (1973) 1 ALL NLR 191 AT Pt. 196. In the appeal before us there is no such credible evidence to entitle the appellant for special damages. Neither documentary evidence nor oral was forth coming, so the award of special damages in this matter is ruled out.
Proof however of general damages does not require the strictness in proof of special damages. The only requirement in the award of general damages is that such award shall not be manifestly too high or manifestly too little or not erroneously assessed. See IMANA V. ROBINSON (1979) 3-4 S.C. 1; ABAJE V. NAMES (1967) NMLR 49; and S.P.D. (NIG.) LTD. V. TIEBO (2005) 32 WRN (VOL.32) P.1 AT 11-12.
Considering the fact that the lower court’s judgment was against the appellant no damages special or general can be expected to be awarded in favour of the appellant. The appellant, my Lords, is entitled to some damages, namely, general damages for the breach of contract duly entered into by the respondent.
For the avoidance of doubt the appeal is meritorious, same is allowed. The decision of the lower court is set aside. The value of work, executed by the appellant was N39,849.290.00 the outstanding balance which is N416, 166.00 on job executed and properly certified be paid to the appellant. The appellant is awarded N500,000.00 general damages and N10,000.00 costs of the litigation.
Appeal allowed.

JUMMAI HANNATU SANKEY, J.C.A.: I have been privileged to read in advance the beautifully crafted lead Judgment written by my learned brother, Muntaka-Coomassie, J.C.A. The Judgment exhaustively addressed all the questions raised in the Appeal and I agree with the reasoning and conclusions contained therein. I have nothing more to add. I too allow this Appeal. I adopt the consequential orders made there from as mine.

IGNATIUS IGWE AGUBE J.C.A.: I have previewed the Lead Judgment delivered by my Learned P.J. and I am in total agreement with his reasoning and conclusions on all the issues formulated that this Appeal is meritorious and ought to be allowed on all the Grounds.
The claim of the Appellant herein (who was the plaintiff in the Lower Court) was for:
“(1) A Declaration that by failing to pay to the plaintiff the sum of N416, 166.00 due and owing to her for works properly carried out under the contract between the Defendant and the Plaintiff and by stopping further execution of the project by the plaintiff is in breach of contract and the plaintiff is entitled to damage for loss of profit.
(2) The sum of N5, 000.00 being general damages for breach of contact and loss of profit.
(3) The sum of N416, 166.00 being outstanding sum due and payable to the plaintiff for work properly carried out and certified under the contract between the Defendant and the plaintiff.”
Pleadings were exchanged and the Defendant filed a statement of Defence and apart from praying for the dismissal of the plaintiffs claim Counter – claim in the following terms:-
“16” The Defendant repeats paragraph 1-15 of its defence and says that:
(i) The plaintiff has an obligation to refund the sum of N13, 067,349.69 already paid to the plaintiff in anticipation of its executing the project to an agreed stage but which was not done in this case.
(ii) The refusal of the plaintiff to refund the said sum of N13, 067,349.69 to the Defendant has greatly hampered the ability of the Defendant to honour its obligations to the other deserving contractors to whom the Defendant is genuinely indebted.”
The case proceeded to hearing and each of the parties called a witness in proof of her case. At the close of the case for the parties the Learned Trial judge dismissed the claim of the plaintiff and gave judgment in favour of the Defendant on her Counter-Claim.
Dissatisfied by the judgment of the Lower Trial Court, the plaintiff (now to be referred to as Appellant) has appealed to this Honourable Court.
The facts of this case have been stated in detail by the Learned Presiding Justice in his lead judgment but suffice it to say in summary that the Appellant (Mantec Water Treatment Nig. Ltd.) was at all times material to this case a Limited Liability Company engaged in the business of water treatment and allied business.
The Respondent on the other hand was the Petroleum Trust Fund a statutory body set up by the Federal Government of Nigeria to execute projects, including provision of portable water for the benefit of Nigerians. The Appellant was awarded a contract by the Respondent under the National rural Water supply Programme some time in 1998 to sink 35 bore holes and rehabilitate 35 others in some Local Government Areas of Kwara State, and the contract sum as was agreed by the parties was N54, 413,127.45 out of which the sum of N39, 433,124.69 was paid to the plaintiff according to her.
The plaintiff alleged that the total value of work done which was duly certified by the Agents of the Defendant who supervised the job was N39, 849.290 but only N39, 433,124.69 was paid to her as at the time defendant unilaterally terminated the contract and that all efforts made by her (the plaintiff) to recover the balance of N416, 166.00 including her solicitor’s letter dated 31/10/2001 to the Defendant, had proved abortive.
On the other hand, the Defendant contended that all the monies paid to the plaintiff for the jobs were in the form of advances and not for jobs already done but that the plaintiff would utilize the monies so advanced in the execution of the water projects and in the process, raise certificates for the approval of the Defendant to cover the advanced sum.
According to the Defendant at the time of stoppage of work by the plaintiff, the total value of the job done was in the sum of N26, 365, 775.00 only which sum was arrived at by consensus between the parties.
It was their further contention that the plaintiff was retaining the sum of N13, 067,349.69 being the excess amount for the job done by the plaintiff. She therefore counter-claimed the said amount.
In this Court, briefs were ordered to be filed following the six Grounds of Appeal filed by the Appellant and arising from this Grounds Learned Counsel on both sides formulated three issues each for determination.
For the Appellant, her issues for determination are as follows:-
“1. WHETHER the Petroleum Trust Fund has been scrapped.
2. WHETHER it is proper to grant Judgment in favour of a party that has been scrapped and ipso facto legally dead and non-existent.
3. WHETHER the value of work done by the Appellant was only N26, 365,755.00 in view of the evidence before the court.”
On the other hand, the Respondent’s Issues are in the following terms:-
“(1) WHETHER the Learned trial judge was in error when he took judicial notice of the facts of the scrapping of the Respondent by the Federal Government of Nigeria.
(2) WHETHER if the answer to issue I above is negative such an error is sustainable to have changed the course of proceedings at the trial court in favour of the Appellant.
(3) WHETHER by the available evidence before the trial court oral and documentary was the court not right to have preferred the case of the Respondent by granting its claims.”
On a careful perusal of the issues raised by the parties I am satisfied that Issues Numbers 1 and 11 of the Appellant are the same with Issues Numbers I and II of the Respondents while Issue Number III of the Respondent is subsumed within Issue Number III of the Respondent’s Issues for determination.
In the circumstance I shall prefer to determine this appeal on the issues formulated by the Respondent without loosing sight of certain salient points that may have arisen from the issues formulated by the Appellant.
My Lord has exhaustively dealt with this issue of scrapping of the Petroleum Trust Fund (the Respondents) in this Appeal. But by way of addendum, it would be recalled that the Defendant had pleaded in paragraph II of her statement of Defence that “it did not breach any of the terms of the contract and that the stoppage of the project was occasioned by force majeure, details of which fact will be led at the trial.”
“The details or the factors leading to the stoppage of the project was elicited in the evidence if the DW1 at page 28 of the lower court’s Records (see page 52) of the Record of proceedings before this court when the said witness stated thus:
“The payment has been stopped. It is a Federal Government directive. Petroleum trust fund has been scrapped and all projects were suspended and stopped.”
At page 15 of the Judgment of the lower court the learned trial Judge held on the issue of judicial Notice, which the Appellant is complaining of that:
“The only witness for the defendant testified that the contract was frustrated by the scrapping of the Defendant. I agree with the submission of the counsel to the defendant that he was not cross-examined on this: Apart from this the scrapping of PTF is a notorious fact in this country that the court cannot but take judicial notice of that fact. I would take that notice.”
I am in total agreement with the holding of the lower court that where, as in this case the DW1 was not cross examined on the issue of the scrapping of the P.T.F. by the Federal Government, the Court ought to admit that piece of evidence as having not been challenged. See NWEDE V. THE STATE (1985) 3 NWLR (pt.13) 443 at 446; F.B.N. LTD. V. OWOKO KOGA supra cited by the respondents counsel.)
However, the question of judicial Notice is a matter of law and section 73 of the Evidence Act provides that “No fact of which the court must take judicial notice need he proved”
Section 74 (1) (a) – (m) goes further to enumerate facts which the courts shall take judicial notice of. By section 74(2) the courts are enjoined in all case, under subsection (1) of the section and also on matters of public history, literature, science or art to resort for its aid to appropriate books or documents of reference. This resort is discretionary and not a matter of cause.
Under section 74 (3) where a court is called upon to take judicial notice of a fact it also has the discretion to refuse so to do until such a person produces any such book or document as it may consider necessary to enable it do so.
It is against this background that we shall determine whether the lower court was right in taking judicial notice of the scrapping of P.T.F.
‘Judicial Notice’ has been defined as facts, which a judge can be called upon to act upon either from his general knowledge of them or from inquiries to be made himself for his own information from proper sources he may resort in the circumstance. See COMMONWEALTH SHIPPING REPRESENTATIVE V. P70 BRANCH SERVICES (1923) A.C. 191, 212.
Apart from the fact, specifically enumerated in section 74 (1) the courts have the discretion to take judicial notice of other facts provided that they are sufficiently notorious. The question is whether the scrapping of the P.T.F. is such a notorious fact that the lower court could take judicial notice of without resort to the law so scrapping her or repealing her existence?
Here counsel for the Respondent in reply to the arguments of the Appellants Counsel has cited the eases of UWAIFO V. A. G. BENDEL STATE & ORS (1982) 7 S.C. 124 and DUNGBO V. IDUGBOE (1983) 2 S.C. 14 where the court took judicial notice that on the coming to power in 1975 the Military Regime at that time dismissed and removed several public officers, who were in office prior to 1st October, 1960, He has also cited A. G. LAGOS STATE V. HON JUSTICE DOSUNMU (1989) 3 NWLR (pt.111) AT 552 where the Supreme Court held that courts are precluded from taking a stand capable of negating the effectiveness and functioning of government policy, to urge this court to hold that the learned trial Judge was right to have taken judicial notice of the fact of scrapping the Respondent.
I have not been privileged to have recourse to chapter 14 of the latest volumes of the Laws of the Federation. I am also not aware whether the said volumes of the Laws of the Federation were made available to the learned trial Judge before delivery of his Judgment.
However, in the case of KWARA STATE INVESTMENT CO. LTD V. GARBA & ORS (2000) 10 NWLR (pt.674) 25 at 33, this court per OKUNOLA, AMAIZU and ONNOGHEN J.J.C.A. when confronted with a similar scenario unanimously held thus:-
“In the present suit it is common ground that the 2nd Respondent was established by the Kwara State Investment Corporation Edict, No.4 of 1971, being a creation of a statute, it is only a statute that can bring to an end its existence Neither this court nor the court below was referred to any law that repealed Edict No.4 of 1971 that established the 2nd Respondent… The only reasonable inference to be drawn from the available fact is that the 2nd Respondent is very much alive in the statute book”.
In our instant case neither did the Respondent present any statute or proclamation from the President or the National Assembly abrogating the P.T.F. Decree NO.25 of 1994 before the trial court nor did he do so in this court. We shall presume that the P.T.F. is hail and hearty and its Law is comfortably ensconced in Cap.14 of the Laws of the Federation.
To further buttress the fact that P.T.F. is alive und not dead as purported by the Respondents DW1 gave evidence as a civil servant working with the Respondent. Moreover the lower court recognized rightly or wrongly her existence before giving her judgment on her counter-claim.
I am therefore in total Agreement with the learned counsel for the Appellant, and the authorities cited that the lower court ought not to have taken judicial notice of the scrapping of the P.T.F. without invoking sub-section 3 of section 74 of the Evidence Act Cap. 112 Laws of the Federation of Nigeria 1990, to call on the Respondents to substantiate their viva voce evidence on the repeal of the P.T.F. Act or Decree nay tile body itself.
The above notwithstanding there is a new twist in this case when learned counsel for the Respondent like a chameleon brought in the companies And Allied Matters Act 1990 and the case of INTERCONTRACTORS NIG. (LTD.) V. NPF (1988) 2 NWLR (PT. 76) and alluding to the concept of a company under receiver-ship submitted that the position of the Respondent is akin to an unhealthy corporation under receivership or liquidation. Thus according to him the suspension of the Respondent did riot apply to those functions, which had been carried out hitherto on the directive of the Government.
I think my Lord the P.J., has also dealt with this sub issue so admirably that I only have to emphasize that by the combined effect of section 315, 316, and 317 of the Constitution of the Federal Republic of Nigeria 1999 and section 6 (1) (a), (b), (c) (d) and (e) of the Interpretation, Act (assuming the Petroleum Trust Fund Act or Decree was abrogated) it, previous operation or any thing done or suffered under it, any right, privilege, obligation or disability or liability incurred under the enactment shall not be affected. Neither shall it affect any investigation, legal proceeding or remedy in respect of such right, privilege, obligation, ability, penalty forfeiture legal proceeding which may be instituted continued, enforced, and such penalty imposed, as if the enactment had not been repealed.
From the argument of Respondent’s Counsel, he has indirectly admitted that the so- called scrapping of P.T.F. will not affect a contract genuinely entered into by the parties to this suit.
In ABAYE V. OFILI (1986) 1 S.C. 231 at 273 UWAIS J.S.C. (as he then was) had cause to pronounce on the effect of a repealed Act vis-Ã -vis the provisions of section 6 of the then interpretation Act 1964, which is in pari materia with our Interpretation Act Cap. In Laws of the federation 1990 when he said:
“I think it will be a dangerous precedent, capable of resulting in chaos, to hold that if a case is contested on the basis of the applicability of a particular statute when the statute is operative, then if at a later date the statute became repealed, the right acquired under it also becomes extinguished. It is to avoid such absurdity and preserve the certainty and predictability of law that Section 6 subsection (2) of the Interpretation Act, 1964 provides that when an enactment expires lapses or ceases to have effect, the provisions or subsection (1) thereof should apply, as if the enactment remains operative.”
With, this authority, the question of judicial notice of scrapping of P.T.F. does not arise as the right and obligations of the parties to the contract would still be inherent in the parties.
In this case not only is the P.T.F. alive but somebody that is the DW1 has testified as an employee or officer of that body; ISSUE NO I of the Respondent is answered in the affirmative considering the fact that the Respondent has not been scrapped
On ISSUE NO. II of the Respondent the question is answered in the negative but such error would not have changed the course of the proceedings in view of sections 315, 316, 317 of the 1999 Constitution and Sections 6 (1) and (2) of the Interpretation Act cap. In Laws of the Federation 1990 which saved the contractual obligations rights and liabilities of the parties assuming the P.T.F. was scrapped which is not the case here.
Section 317 of the 1999 Constitution provides for succession to property rights, liabilities and obligations of the Federal Government or any of its agencies assuming P.T.F. was actually scrapped or its law was repealed and it unequivocally State, as follows:-
“S.317: Without prejudice to the generality of Section 315 of this constitution, any property, right, privilege, liability or obligation which immediately before the date when this section comes into force as vested in, exercisable or enforceable by or against-
(a) the former authority of the Federation as representative or trustee for the benefit of the federation;
(b)… shall on the date when this section come, into force and without further assurance than the provision hereof vest in, or become exercisable or enforceable by or against the president and Government of the Federation…
(2) For the purposes of this section
(a) the president and Government of the Federation … shall be deemed … to be successors to the said former authority of the Federation.
(b) References in this section to “former authority of the Federation”… include references to the former Government of the Federation.”
The eminent and erudite Honourable KAYODE ESO JSC in his contribution to the ABAYE V. ODILI case earlier cited at pages 237-241 had this to say on repealed statute and obligation arising there from inter alia:
“In such repeals, the statute is obliterated completely as if it had never been passed, as a law that never existed, yet all actions which were commenced, prosecuted And concluded under these “never existed” Acts are saved. Lord Tenfenden in SURTEES V. ELLISON (1829) 9B & C 750 put the matter with some considerable clarity, He said-
“It has long been established that when an Act of parliament is repealed, it must be considered (except to transactions past and closed) as if it had never existed”…
“When a right has accrued to an individual under a statute, that right is saved not withstanding the repeal of such statute. Of course a contrary intention must not have been indicted in the repealing statute. For in LEWIS V. HUGHES (1916) I KB 831 it has been held that the expression that the repealed Act shall cease to have effect does not eo ipso show a contrary intention.”
Since the functions of the P.T.F. have been charged to the Presidency all obligations and liabilities hitherto incurred by the respondent shall now be inherited by the Presidency.
In the same vein, if the Appellants did not execute the contract she entered into in spite of the contract sum she has collected any excess amount due to the Respondent, shall be recoverable by the Presidency which authority has inherited all the assets and liabilities of the Respondent.
Where as in this case the Respondents have Counter-claimed, if the lower court found out that the Appellants were liable to refund the excess amount advanced to the Appellants by the Respondents, nothing stopped the court from entering judgment in favour of the respondents as it had done. The question of the suit being incompetent because the respondent was scrapped or that the law establishing her was repealed would not arise in view of the provisions of the Constitution and the Interpretation Act. I therefore agree entirely with the conclusion reached by my learned brother Muntaka-Coommasie J.C.A, in his lead judgment on this issue. By this conclusion issues Number 1 and 2 of the Appellant as well as 1 and 2 of the Respondent have been adequately taken care of. In essence Grounds I, II, and III of the Appellants Grounds of Appeal succeed only to the extent that the learned trial judge took judicial notice of the scrapping of the P.T.F. when there was no law to that effect and further held that the said P.T.F. had been scrapped. However, the scrapping thereof did not stop the court from entertaining the suit and giving judgment in favour of the Respondents who has conceded that they are still in existence if they succeeded in proving their case.
ISSUE NO.3 OF THE RESPONDENT: WHETHER BY AVAILABLE EVIDENCE BEFORE THE TRIAL COURT ORAL AND DOCUMENTARY WAS THE TRIAL COURT NOT RIGHT TO HAVE PREFERRED THE CASE OF THE RESPONDENT BY GRANTING ITS CLAIMS.
In answering this question it is only fit and proper to look at the quality or the evidence elicited by the parties both oral and documentary in proof of their respective cases.
(The plaintiff now Appellant) had claimed the balance of N416, 166.00 which accrued to her as a result of the jobs she executed before the contract was terminated by the Respondent. Section 137 of the Evidence Act provides that in Civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
If the party adduces evidence which ought reasonably to satisfy a jury 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 successively, until all the issues in the pleadings have been dealt with. See sections 137(1) and (2) of the Evidence Act Cap. 112 Laws of the Federation 1990. This section has been interpreted in several cases to mean that generally in civil eases the burden of establishing a case as can be gleaned from the pleadings lies ultimately on the plaintiff since if no evidence is adduced he would loose his case. See ELEMO & ORS V. FASASI OMOLADE & ORS (1968) NMLR 359, DAWODU V. SOLANKE (1959) LLR 15 etc.
Thereafter the burden of establishing the contrary would shift to the Defendant who would have judgment given against him if nothing is said to rebut the evidence given by the plaintiff. See AOUD V. NZIMIRO & ORS (1944) 10 WACA73, NIGERIAN MARITIME SERVICES LTD V. BELLO AFOLABI (1978) 2 S.C. 84, ISOKWA & SONS CO. LTD V. UNION BANK OF NIGERIA LTD. (1996) 10 NWLR 281, S.C.
Thus in legal parlance it is commonly said that the burden of proof in civil cases preponderates and the court is expected to give judgment on, the preponderance of evidence after placing the totality of the respective evidence adduced by the parties on the imaginary scale of justice; weigh them and find out which of the two is heavier before arriving at his decision.
This directive was long established in the oft-quoted dictum of FATAI WILLIAMS J.S.C. (as he then was) in the celebrated case of MOGAJI & ORS V. ODOFIN & ORS (1978) 4 S.C. 91 at 93-95 ably cited by the Learned counsel for the Respondent.
In this Case since there is claim and counter-claim the parties would stand and fail on the quality of the evidence elicited by them.
The argument of the Learned Counsel for the Appellant on their issue number 3 which I have subsumed in issue No.3 of the Respondents is that the value of the work done by them was not only N26, 366,775.00 as contended by the Respondent. He referred us to the testimony of the only witness for the Appellant (The PW1) who is an engineer and according counsel gave evidence of the job awarded and the detailed description of the processes involved in the construction of the 35 new boreholes and rehabilitation of 35 old ones in 7 (seven) Local Government Areas of Kwara State.
The PW1 was also said to have tendered documents showing the detailed account of the job done whereas the DW1 admitted knowing next to nothing about the project including their consultants and infact never visited the sites.
Now on a careful scrutiny of Exhibit 78 which is the 3rd interim certificate upon which the DW1 anchored the Respondent’s case, I noticed that it was predicated on Exhibits 9 and 9A, Exhibit 9A clearly states that the certificate was for the period ending February 1999 and the total value of job done was N26, 365,775.00
The above exhibits not withstanding Exhibit 2 contains the following pumping tests which were duly signed by the consultant supervisor of the Defendant Engr. Awojobi:-
LOCAL GOVERNMENT AREA OKE-ERO
PAGE       VILLAGE       DATE
3       IDOFIN EHIN AFO            23/3/99
4       IDOFIN EHIN AGO            23/3/99
6       IDOFIN IGBONA            22/3/99
7       IDOFIN IGBONA            22/3/99
8       IDOFIN IGBONA            21/3/99
10       IDOFIN IGBONA             21/3/99
12       OKE-OLOFA       22/3/99
13       OKE-OLOFA       22/3/99
15       ILOFA          21/3/99
16       ILOFA          21/3/99

LOCAL GOVERNMENT EKITI
PAGE        VILLAGE       DATE
19       ARAROMI-OPIN    12/4/99
20       ARAROMI-OPIN    12/4/99
22       ORA-OBBO-ILE    13/4/99
23       ORA-OBBO-ILE    13/4/99
25       KORO          13/4/99
26       KORO          13/4/99
28       ERUKU       14/4/99
29       ERUKU       14/4/99
31       ISOLO-OPIN       12/4/99
32       ISOLO-OPIN       12/4/99

LOCAL GOVERNMENT ILORIN SOUTH
PAGE        VILLAGE       DATE
101       GANIKI       11/4/99
102       GANIKI       11/4/99
104       ALAWO OGIDI    11/4/99
105       ALAWO OGIDI    11/4/99
107       DANCALU       11/4/99
108       OKO-OBA       11/4/99
110       OJE          20/3/99
111       OJE          20/3/99
112       OJE          20/3/99
114       OMOMERE-OJA    10/4/99
115       OMOMERE-OJA    10/4/99

It has to be noted that the unsigned Test results were carried out in November 1998 which had long been paid for and they relate to ILORIN EAST.
Note also that pages 158-168 for Ifelodun Local Government Area were also verified and signed by the site Engineer Awojobi and the tests were carried out in Irabon, Akpata-Aje, Labaka-Idera and Aireke between 14/4/99 and 17/4/99.
What emerges from the totality of the documents tendered is that interim certificates have not been issued for the jobs executed between March and April 1999. It is the totality of the jobs executed between the time the contract was awarded, the total cost thereof, amount collected by the Appellant and the balance due to them, which were summarized in Exhibit 3. The Defendant cannot therefore contend that the value of job done by the Appellant was only as in Exhibit 713.
Section 91 (1) of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990 states as follows:-
“In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following Conditions are satisfied:
(a)…
(b)…
(2) …
By subsection (3) thereof;
“Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.”
It would be recalled that when the DW1 was shown Exhibit 3 tendered by PW1, he dismissed it as a paper prepared by the plaintiff its self and that it is unknown to the Defendant. In other words he was insinuating that the Exhibit was prepared by an interested person when proceedings were anticipated involving the dispute now in Court.
There is no doubt that where a document is prepared in the circumstances as provided by subsection 3 of section 91 of the Evidence Act such document ought not to be admitted in evidence. See High Grade Maritime services Ltd. Vs. F.B.N. LTD. (1991) 1 S.C.N.J. 110 at 121 per Wali J.S.C; Barkway V. South Wales Transpt. Co. Ltd. (1949) 1 K.B.222.
However, where the DW1 admitted under cross examination that:
(1) The bill of quantities show the amount of work to be done, the work done, and the value in engineering language;
(2) Exhibit 3 passes as the bill-of quantities;
(3) Exhibit 3 has the column for work done and also for costs.
(4) Once the pump test in Exhibit 2 is signed by the P.T.F it is correct
(5) The Defendant employed Impact Engineers Ltd, as its consultants to supervise the projects even though he may not know the name of Engineer Awojobi of the said consultant; then the Defendant has no cause to doubt the authenticity of Exhibit 3 more so as it was admitted by the trial Judge without objection from her counsel.
From the foregoing, it is clear that Exhibit 3 was made in the ordinary course of business and is accordingly admissible in evidence in proof of the transaction between the parties and the question of interest or anticipation of proceedings is neither here nor there. See Karibi-Whyte J.S.C. in Mrs. Elizabeth N. Anyabosi V. R.T. BRISCOE (NIG.) LTD. (1987) 6 S.C 15 at 68-69.
I am therefore of the view that Exhibits 2 and 3 tendered by the Appellant amply demonstrated that she was entitled to the amount claimed.
The Learned trial judge did not scrutinize painstakingly the pieces of evidence before him in arriving at his decision preferring the case of the Respondent to that of the Appellant. In the result his finding on the issue of the balance left to be paid and/or refunded to each of the parties was perverse and we are in a position to hold on the authorities of AKPORIAYE V. OLUMAGBE (1999) 1 NWLR (PT. 586) 271 at 281 SALAKO V. DOSUNMU; OMONIYI V. ALABI, CASH AFFAIRS FINANCE LTD V. INLAND BANK (NIG.) PLC. (2005) 5 NWLR (PT.658) 580 that the judgment of the lower court ought to be in favour of the Appellant.
I therefore agree entirely with my learned brother on this issue (No.3) and I resolve it in favour of the Appellant.
On the issue of damages for breach of contract. I totally agree with the lead judgment that the Respondents unilaterally breached the contract which they were entitled to do and as a consequence shall incur damages in favour of the plaintiff at least for the loss of profit that should have accrued to her if the contract was not peremptorily terminated, In SAVANNAH BANK OF NIGERIA PLC. V. OPANUBI (2004) ALL FWLR (PT. 222) 1587 at 1609 Uwaifo J.S.C. stated the position of the Law inter alia:
“The Law is that if an innocent party has rendered services under a contract, which has not been fully performed and which has been determined by him because of the Defendant’s repudiatory breach of contract, he may sue for damages for loss arising from the breach of contract or bring a restitutionary claim to recover the value of the services rendered on a quantum meruit (or quantum valebat). See The Law of Restitution by Goff and Jones 5th Edn. page 531 etc., Aburime V. NPA (1978) 4 S.C. 111 at 132.”
Also in the English case of DE BERNARDY V. HARDING (1853) 155 ER 1586 at 1587 Alderson, B succinctly put it beyond doubt that:
“Where one party has absolutely refused to perform, or has rendered himself incapable of performing his part of the contract, he puts it in the power of the other party either to sue for a breach of it, or to rescind the contract and sue on a quantum meruit for work actually done.”
I am unable, in the circumstances of this case, to accept the plea of force majeure as canvassed by the Respondent so as to have the contract frustrated. If there were any frustration, which I do not concede, it was self-induced by the Respondents who suspended all projects of the P.T.F. without due regards to the contract they entered into with the Appellant.
Accordingly I will also award the Appellant the sum of N500, 000,00 General Damages at least as restitution for the profits, which she would have made if; the contract were allowed to be completed, I abide by all other consequential orders as made by my learned brother Muntaka-Coomassie J.C.A in his lead judgment.
The Appeal therefore succeeds and the judgment of the trial court is hereby set aside. The Appellant’s case in the High court is sustained while the Respondents counter-claim is dismissed.