MONIER CONSTRUCTION COMPANY NIGERIA LIMITED V. E. AGBEJURE ENTERPRISES LIMITED
(2013)LCN/6103(CA)
In The Court of Appeal of Nigeria
On Thursday, the 18th day of April, 2013
CA/PH/598/2008
RATIO
“Although it is trite that a Claimant will depend solely on the strength of his case to succeed and not on the weakness of the case of the defence, the fact still remains that where a claimant pleads a fact in issue, and leads evidence in support, a defendant who asserts the contrary must tender positive and credible evidence in rebuttal.” Per NWOSU-IHEME, J.C.A. (P 11,Paras A-B)PER CHIOMA E. NWOSU-IHEME, J.C.A.
“Pre-judgment interest is either statutory or contractual. The appellant having not proved that the pre-judgment interest he had claimed was either statutory or contractual had failed to justify his entitlement to that head of claim.” Per EKO, J.C.A. (P 14,Paras B-C) PER CHIOMA E. NWOSU-IHEME, J.C.A.
JUSTICES
EKO EJEMBI Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
Between
MONIER CONSTRUCTION COMPANY NIGERIA LIMITED Appellant(s)
AND
E. AGBEJURE ENTERPRISES LIMITED Respondent(s)
CHIOMA E. NWOSU-IHEME, J.C.A. (Delivering The Leading Judgment): The Appellant here was the Defendant while the Respondent was the Claimant at the Lower Court by a Specially Endorsed Writ, the Respondent claimed against the Appellant the sum of N4,053,902.82k as consideration due the Respondent amongst other reliefs.
The learned trial Judge P.N.C. Agumagu on the 19th of January, 2007 held that the Respondent executed satisfactorily the sub-contract awarded to him by the Appellant and awarded the sum of N4,053,902.82k to the Respondent as balance of his unpaid contract sum and 25% pre- judgment interest. Aggrieved with that Judgment the Appellant now appealed to this Court.
By the said Specially Endorsed Writ the Respondent (Claimant) at the Lower Court sought the following reliefs:
“(a) Consideration due to plaintiff under sub contract from defendant. Which consideration defendant has failed, refused and/or neglected to pay over to the claimant, N4,053,902.82k.
(b) Extra costs incurred in transportation and hotel bills in several trips undertaken by the plaintiff to Port Harcourt and Abuja, respectively (Receipts of which may be tendered at the trial). N380,000.00.
(c) Aggravated and/or compensatory and/or exemplary, and/or prohibitive, and/or punitive damages for the very arbitrary, capricious, whimsical and oppressive manner the defendant reneged and/or repudiated the sub contract under which it derive full satisfaction and accord, N100,000.00.
(d) The claimant also claims interest on the sum hereby claimed, from filing up to judgment, at 25% percent (per centum) and 10% percent (per centum). Form judgment up to date of actual payment and/or liquidation of the entire sum, to the claimant.”
The Appellant responded to the Specially Endorsed Writ by filing an affidavit in opposition to the Writ. Being a special procedure the case proceeded to hearing as the affidavit became their pleadings.
The Appellant filed a Notice and Grounds of Appeal containing seven Grounds. They without their particulars read:
“(1) The learned trial Judge erred in law in awarding, the sum of N4,053,000.00 claimed under head I of their particulars of claim.
(2) The learned trial Judge erred in law in holding that the Respondent performed the contract thereby making an award of N4,053,000.00 in favour of the Respondent.
(3) The learned trial Judge erred in law in holding that the cancellation of the contract was not pleaded thereby being persuaded to make the award he made.
(4) The learned trial Judge erred in law in holding that there was variation of the contract thereby making an award of N4,053,000.00 in favour of the Respondent.
(5) The learned trial Judge erred in law in awarding pre judgment interest in favour of the Respondent.
(6) The learned trial Judge erred in law in awarding 25% interest in favour of the Respondent on the ground that counsel for the Appellant consented to the award of interest in favour of Respondent if its claim succeeds.
(7) The learned trial Judge erred in law in holding that Appellant ought to have called:
(i) The person involved in the variation exercise with Respondents Company.
(ii) Personnel from the Accounts section.
The Appellant formulated 3 issues for determination:
“(1) WHETHER the learned trial Judge was right in holding that there was a variation of the contract, that the contract was performed thereby holding that the Respondent was entitled to the sum of N4,053,000.00 as balance of payment due to Respondent
(Grounds 1, 2, 4, and 7).
(2) Was the learned trial Judge right in holding that the contract (sub-contract) was not cancelled (terminated).”
(3) Whether the award of pre-judgment interest of 25% was justified.
The Respondent adopted the above 3 issues as formulated by the Appellant.
The summary of the case as presented by the Appellant (Defendant) at the lower court was that it had to help out the Respondent, in its performance of the contract the subject of this appeal, by supplying it materials to work with. The Appellant contended that the work or aspects of this contract which the Respondent (Claimant) at the lower court executed, were verified and fully paid for by the Appellant. ‘
Appellant called one witness at the trial and tendered documents in support of its case.
The Respondent (Claimant) at the lower court on his own part, stated that sometime in the year, 1997, it was awarded a contract to carry out some road work which consisted in the main, building of culverts and drains along Deco Road, Warri, sub-contracted to the Appellant. As proof of this act, Respondent tendered Exhibit,*B’ (the sub-contract agreement).
Respondent claimed to have fully and or satisfactorily executed this contract but that the Appellant after deriving satisfaction and accord from it, has failed, refused and or knowingly refused to pay the Respondent the agreed sum for this contract.
In proof of his case, the Respondent also called a sole witness and tendered documents in support.
In his brief, learned counsel for the Appellant S. J. Ofoluwa contended in summary that the Respondent did not perform the contract in its entirety as it had to at a certain stage supply the Respondent materials for the purpose of facilitating the job.
He submitted that at no time was the contract sum varied and that this fact was not pleaded by the Respondent and ought to have been disregarded by the learned trial Judge.
Counsel argued that since there was no invoice tendered to back the award of N4,053,000.00 and no certificates were jointly signed by the parties, that the lower court ought to have dismissed the claim of the Respondent. He cited KODILONYE V. ODU 2 WACA. 336,
AGBABIAKA V. OKOJIE (2004) 15 NWLR (PT.897) P.503. ARJAY LTD V. AMS LTD. (2003) 7 NWLR (PT. 820) P. 577. Among others.
He further contended that since there was cancellation or termination of the contract, there was no justification for the award of Pre-Judgment interest.
In his reply, learned counsel for the Respondent E.M. Wosu Esq. submitted that the Respondent completed the contract to the satisfaction of the Appellant and that there was a variation of the contract sum reviewed upwards. That the Respondent was paid only N2,565,019.87k for all the job done representing invoices 1-7. He contended that there was no cancellation of the contract at any stage and the fact of the contract variation was copiously pleaded in the Respondent’s Specially Endorsed Writ in paragraphs 4 and 5 which counsel reproduced in this brief. He cited DIAMOND BANK LTD V. UGOCHUKWU (2008) 1 NWLR (PT.1067) Pg 1. at 34.
TAXCO NIG. PLC V. LUKOKO (1997) 6 NWLR (PT.510) Pg. 651.
KEMI V. SUNDAY (1999) 1 NWLR (PT.613) Pg 92 at 106.
ISITOR V. FAKARODE (2008) 1 NWLR (pr.1069) 602 at 621 among others.
Counsel contended that the N4,053,902.82k represented invoices 8 and 9 which were not paid by the Appellant and therefore the award of the said sum by the trial court together with the pre-judgment interest were justified.
In determining this appeal, I will adopt the three issues formulated by the Appellant which issues the Respondent also adopted and I have already reproduced them earlier in this judgment. As I said before in this judgment, the Respondent who was the claimant at the lower court initiated his claim via the specially Endorsed writ procedure, which dispenses with the formalities of statement of claim and defence, but the defence is allowed to debunk or admit facts put forward by the claimant in its writ via the instrumentality of a counter-affidavit. To that effect, on the 7th day of December 1999, the Appellant’s Head of Legal and Property Department one Mr. Pius Uchuno, deposed to a 26 paragraph affidavit in opposition to the Respondent’s specially Endorsed writ of summons. The said Pius Uchuno never averred anywhere in the entire affidavit that the Appellant terminated this sub-contract awarded by it to the Respondent.
Paragraph 17 of the said affidavit is very instructive, it stated as follows:
“17 …….. although the sub-contract did not allow for variation of cost, within the period of execution of the contract, defendant Unilaterally protestations by the plaintiff of loss on the job”.
(Underlining mine).
See page 127 of the Record of Appeal.
This averment lends more support and credence to the fact that the contract value of this sub-contract was raised; as asserted by the Respondent.
Learned counsel for the Appellant Mr. Ofoluwa had argued that the sub-contract was terminated due to the inability of the Respondent to perform the job to the satisfaction of the Appellant. I am at a loss why learned counsel for the Appellant should put up this argument even in the face of the evidence of CW1 and DW1 to the effect that the Respondent at least executed some aspects of this sub-contract for which some payments were made. It is my humbly but firm view that if this contract had been terminated or cancelled as learned Appellant’s counsel argued, there would have been no need for payment and “unilateral” upward review of the value of this sub-contract to have been made by the Appellant.
Appellant’s counsel also contended that Respondents claim that 8th & 9th invoices were not paid for should be disregarded since they were not tendered by the said Respondent. He submitted that if they had been produced, their contents would have been adverse to the claim of the Respondent.
DW1 in his testimony testified to the effect that invoices are submitted usually to the Accounts Department. Hear him:
“Invoices are usually supplied to the Accounts Department by contractors, Quantity Surveyors and Accounts Department are the only people that can tell this court anything concerning invoices submitted by the Plaintiff and payment made to him”.
DW1 stated further in his testimony in court that:
“I am a Lawyer by Profession,
I had always worked in the Legal Department of M.C.C. ….
I do not work in the construction sites of the defendant. I am not an Engineer. I do not work in the Accounts Department.”
The testimony of DW1 who was the only and star witness for the Appellant at the lower court did not throw any light whatsoever in respect of these technical aspects of the disagreement between the Appellant and the Respondent.
He made matters worse when he stated at page 132 of the Record of Appeal thus:
“I was not involved in carrying on this contract. All I know was from those on site”.
Although it is trite that a Claimant will depend solely on the strength of his case to succeed and not on the weakness of the case of the defence, the fact still remains that where a claimant pleads a fact in issue, and leads evidence in support, a defendant who asserts the contrary must tender positive and credible evidence in rebuttal.
Going by the testimony of this “star” and sole witness for the Appellant at the court below, all its efforts to debunk the assertion by the Respondent that invoices 8th and 9th were not paid by the Appellant was an exercise in futility. The learned trial Judge captured it succinctly when he described this witness at page 132 of the Records as “Putting a square peg in a round hole”‘ I have no difficult therefore in holding that the Respondent was not paid in full by the Appellant for the sub-contract which it executed.
The same DW1 who had earlier stated that the Appellant had paid the sum of N3,514,378.46k to the Respondent as against the sum of N2,565,019.37k admitted by the Respondent as the payment made to him so far by the Appellant, turned summersault during his cross-examination when he stated:
“I cannot remember off hand the exact amount that has been paid to Plaintiff of this contract sum to date”.
See page 3 lines 19 – 20 of the additional records.:
Having stated as it did, that it paid to the Respondent the sum of N3,514,374.47k rather than the N2,565,019.37k which the Respondent admitted it received, the Appellant had the burden of proving that its figures and not those of the Respondent were the correct ones with regard to this payment. Having failed to do so, it is my view that what was paid to the Respondent was what it admitted receiving and that was the sum of N2,565,019.37k and what was left unpaid was N4,053,000.00 (Four Million and Fifty Three Thousand Naira).
On the award of the Pre judgment interest of 25%,the Supreme Court in the case of AFRI BANK v. AKARA (2006) ALL FWLR (PT.304) p. 401 held:
“Except where parties have agreed on payment of interest, it is not right to award interest predating the date of judgment. There must be express agreement that interest will be charged. In the instance case, the trial court was in error to have awarded pre-judgment interest to the Plaintiff without prior agreement between the parties”.
There is no doubt that this sub-contract was awarded as far back as 1997 and that the Respondent fully executed this contract and that the Appellant failed, refused and or knowingly refuse to pay the Respondent the agreed sum, There is therefore no doubt that the Respondent suffered some hardship as a result of the Appellant’s refusal to pay the balance of the contract sum. However, the court does not give a party what it did not pray or ask for.
At the lower court, the Respondent abandoned its claim to compensatory punitive/prohibitive damages, as well as its claim for General damages. Consequent upon this, the learned trial Judge struck out the claim for damages. This Court therefore has no reason or justification to resuscitate the claim for damages.
In the circumstance , I resolve issues 1 and 2 against the Appellant and in favour of the Respondent. The grounds of appeal fail.
On the third issue, considering my stand above, I hold that the lower court was in error to have awarded pre-judgment interest to the Respondent without prior agreement between the parties. That issue is resolved against the Respondent.
On the basis of the foregoing, the Respondent is entitled to the balance of its unpaid contract sum of N4,053,902.82.
The appeal succeeds in part. I award One Hundred Thousand Naira as costs against the Appellant and in favour of the Respondent.
EJEMBI EKO, J.C.A.: Parties are ad idem that the three issues in this appeal are as follows:-
1. Whether the learned trial Judge was right in holding that there was a variation of the contract, that the Contract was performed thereby holding that the Respondent was entitled to the sum of N4,053,000.00 as balance of payment due to Respondent (Grounds 1, 2, 4, and 7).
(2) Was the learned trial Judge right in holding that the contract (sub-contract) was not cancelled (terminated).”
(3) Whether the award of pre-judgment interest of 25% was justified.
My learned brother, C. E. NWOSU-IHEME, JCA, in the judgment just delivered, had exhaustively draft with the 3 issues. I read the judgment in draft. I have nothing further to add, except to briefly comment pre-judgment interest.
Pre-judgment interest is either statutory or contractual. The appellant having not proved that the pre-judgment interest he had claimed was either statutory or contractual had failed to justify his entitlement to that head of claim. The learned trial judge was, in my firm view, therefore wrong to have awarded same. This issue is accordingly resolved against the Respondent and in favour of the Appellant.
The Respondent had submitted that the Appellant, having neglected and/or refused to pay him for 7 years; it was only fair and proper that he paid the pre-judgment interest to him, as ordered by the trial court. That can only be the basis for general damages for breach of contract and not fixed interest rate, which is either statutory or contractual. The Respondent had unfortunately withdrawn the claim for general damages.
With this piece I hereby adopt the judgment and the C. E. consequential orders mode therein by my learned brother, NWOSU-IHEME, JCA.
STEPHEN JONAH ADAH, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother Nwosu-Iheme, JCA. I am in complete agreement with the reasoning and the conclusion of my learned brother in this appeal.
I also allow the appeal in part and I abide by the order made therein.
Appearances
N. A. AyewohFor Appellant
AND
N. Nzewi-AgbasiFor Respondent
