MR. CALEB JAMES EFFIONG V. ATA ISI SUPPLIES & SERVICES LTD & ORS.
(2010)LCN/4216(CA)
In The Court of Appeal of Nigeria
On Monday, the 12th day of July, 2010
CA/C/150/2009
RATIO
WHETHER IT IS THE TRIAL COURT’S DUTY TO EVALUATE EVIDENCE AND ASCRIBE PROBATIVE VALUE TO SUCH EVIDENCE
It is to be made clear, as held in many authorities that the evaluation of evidence and ascription of probative value to such evidence are the preserve of the trial court which had the opportunity of hearing and assessing the evidence and demeanour of the witnesses. PER JAFARU MIKA’ILU, J.C.A
INTERFERENCE WITH THE THE FINDINGS OF THE TRIAL COURT: CIRCUMSTANCES WHERE AN APPELLATE WILL NOT DISTURB THE FINDINGS OF THE TRIAL COURT
An appellate court does not normally disturb the findings except in the following circumstances:- (a) Where the trial court did not make a proper use of the opportunity of seeing and hearing the witnesses at the trial. (b) Where the trial court drew wrong conclusions from acceptable evidence. (c) Where the trial court took an erroneous view of the evidence adduced before it. (d) Where the trial court’s findings are perverse in the sense that they are unsupported by evidence or did not flow from the evidence accepted by it. PER JAFARU MIKA’ILU, J.C.A
AWARD OF DAMAGES: ON WHAT BASIS IS AN AWARD OF DAMAGES BASED ON
It is trite law that an award of damages either special or general, is not given as a matter of cause, but on sound and solid legal principles and not on speculation or sentiment. It is also not awarded at large or out of sympathy borne out of extraneous considerations, but rather on legal evidence of probative value adduced for the establishment of an actionable wrong or injury. Refer to A.S.E.S.A. VS. EKWENEM (2009) ALL FWLR (pt 491) 838; 847 and G.K.F.I (NIGERIA) LIMITED VS. NITEL PLC (2009) 15 NWLR (Pt 1164) p. 344; 350. The award was made by the trial Judge in disregard of principles and a such it is set aside. PER JAFARU MIKA’ILU, J.C.A
JUSTICES
KUMAI B. AKAAHS Justice of The Court of Appeal of Nigeria
JAFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
N. S. NGWUTA Justice of The Court of Appeal of Nigeria
Between
MR. CALEB JAMES EFFIONG Appellant(s)
AND
ATA ISI SUPPLIES & SERVICES LTD & 0RS Respondent(s)
JAFARU MIKA’ILU, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Cross River State delivered on 29th June, 2009.
The appellant commenced this action by way of writ of summons dated 25/5/2009. The appellant’s claims against the defendants are as follows:-
1. The sum of N564,158.24 being an outstanding contractual sum of the 3rd stage of work for two units.
2. 5% of these contract value withheld by the defendants despite issuance of completion certificate and duration over the stipulated 3 months from the period of completion of each stage of work and amounting to N60,000.00.
3. The total sum of N3,114,304.55 for the two units being the outstanding fee for the last two stages and 80% of the completed job without payment.
4. N2 million being general and special damages for inconvenience and breach of the contract agreement.
The trial court conducted the trial of the matter at the end of which the trial court gave judgment as follows:-
1. The defendants are to pay the plaintiff the sum of N20,000.00 withheld by the defendant as retention fee for stage 1 and 2 of the job completed by the plaintiff.
2. The court hereby declare (sic) that the defendant have made (sic) complete payments to the plaintiff for the 3rd stage of the job completed so far by the plaintiff.
3. The defendants owes (sic) the plaintiff 5% of the sum of N596,325 for each of the two units so far completed by the plaintiff.
4. The defendant again owes the plaintiff 20% of the sum of N960,827.05 for the 5th stage of the job done by the plaintiff as agreed by both parties for each unit.
5. The court awards general damages of N100,000 against the defendants as special damages have not been so proved by the plaintiff.
The said judgment was delivered on 29/6/2009. It is against the said judgment the appellant has filed this appeal. The respondents have also filed a notice of cross-appeal on 6/8/2009.
Briefs have been filed and exchanged before this court. The appellant has framed two issues for determination in this appeal. They read as follows:-
(1) Whether or not the trial court did evaluate the evidence placed before it and whether its findings are legally supportable in view of all the evidence put before it and the circumstance of the case.
(2) Whether the lower court was right in its assessment and award of damages by awarding to the appellant a paltry sum of N100,000 in disregard of the contents of the heads of claim contained in items 23(d) of the amended statement of claim, the evidence accepted by it and in the light of the principles applicable to a case of this nature.
On the other hand the respondents/cross-appellants have framed the following issues for determination:-
1. Whether the learned trial Judge appraised and or evaluated the evidence to support her reasoning and conclusion. (GROUNDS 1 % 3 OF THE NOTICE OF APPEAL).
2. Whether the award of N100,000.00 as General Damages was correct, right or proper in the circumstance (Grounds 2 of the and 2 of the Cross Appeal).
It is to be made clear, as held in many authorities that the evaluation of evidence and ascription of probative value to such evidence are the preserve of the trial court which had the opportunity of hearing and assessing the evidence and demeanour of the witnesses. An appellate court does not normally disturb the findings except in the following circumstances:-
(a) Where the trial court did not make a proper use of the opportunity of seeing and hearing the witnesses at the trial.
(b) Where the trial court drew wrong conclusions from acceptable evidence.
(c) Where the trial court took an erroneous view of the evidence adduced before it.
(d) Where the trial court’s findings are perverse in the sense that they are unsupported by evidence or did not flow from the evidence accepted by it.
The respondent has pointed out the appellant’s brief stops short of showing or demonstrating how and or in what respect the above circumstances (or even any of them) affected the decision of the lower court in this case. Refer to ANYANWU VS. UZOWUAKA (2009) 13 NWLR (Pt.1159) 445; 458 and EBENEHI VS. THE STATE (2009) All FWLR (Pt.486) 1825; 1829 and where the stand point of law has been reiterated in DARE VS. FAGBAMILA (2009) All FWLR (Pt.489) 568; 577-578 where the stand point of the law has been reiterated as follows:-
“The evaluation of evidence and the ascription of probative value to such evidence are the primary function of the trial court which saw, heard and assessed the witnesses. Where, however, a trial court evaluates the evidence before it and makes definite findings of fact which are not perverse, it is not within the territory of the Court of Appeal to substitute its own views for those of the trial court. What the Court of Appeal ought to do is simply to find out whether there is evidence on which the trial court arrived at its findings and that there is no misapprehension of the facts. Once there is such evidence on record, the Appellate court cannot interfere.”
The respondents counsel has correctly submitted that in this case there is evidence on record to support the trial court findings and conclusions. This issue is therefore resolve against the appellant.
On issue 2, as in the respondent’s brief is whether the award of N100,000.00 as general damages was correct, right or proper in the circumstances. (Grounds 2 of the Notice of Appeal and Grounds 1 and 2 of the Cross-Appeal).
It is to be noted that the parameters/principles governing evaluation of evidence by trial court have been enunciated by the higher courts. Thus in HENSHAW VS. EFFANGA (2009) 11 NWLR (pt 115) 65;86 the court held that a trial court must put the totality of the testimony adduced by both parties in a civil case on an imaginary scale before it comes to a decision as to which evidence it believers or accepts and which evidence it rejects. It should weigh one side against the other and then decide upon the preponderance of credible evidence which weighs more. That the trial Judge in this case abided by and or used/employed those parameters. He has further relied on ANYANWU VS. UZOWUAKA (2009) 13 NWLR (pt 1159) 445;456.
The learned Respondent/Cross Appellant counsel has maintained that it is not true or correct to say that the learned trial Judge failed to evaluate the evidence that a Judge does not fail to evaluate or properly evaluate evidence simply because he/she has not believed the evidence of aggrieved party. That a decision is perverse in the following ways:
a) Where it runs contrary to the evidence; or
b) Where it has been shown that the trial court took into account matters which it ought not to have taken into account or shut its eyes to the obvious; or
c) where it has occasioned a miscarriage of justice.
The Respondents/cross-appellant’s counsel has added that the decision of the trial judge does not suffer from any of the ailments listed above. That it is not enough for the appealing to merely submit that the decision is perverse, the law expects more. That he must show in what respect is the decision perverse.
The Respondent counsel has added that the trial court examined the evidence regarding the appellant’s relief for 5% of the contract value allegedly withheld by the appellant and not paid as agreed in EXHIBIT 1 which the appellant claimed to be N60,000.00. That relief was apparently based on CLAUSE (iii) of EXHIBIT 1. That it was not enough to show or testify, as the appellant merely did, that EXHIBIT 1 provides for such deduction. Having claimed it as special damages, the appellant needed to prove by evidence that the sum representing 4$ i.e. N60,000.00 (as claimed by the Appellant was actually deducted by the 1st Respondent. He who asserts must prove. The Appellant was derelict in the discharge of that onus, which was particularly desirable against the backdrop of the Respondent’s denial both in their pleading on oath through their witnesses that they retained 5% or N60,000.00 of the Appellant’s money. Rather DW2 positively testified on oath that what he was mandated to withhold, deduct or retain was N10,000 for each stage, i.e. N20,000.00 for stages one and two. That in his evidence in-chief and under cross-examination, DW2 struck to that position. After evaluating the evidence, the learned trial judge believed the amounts borne out by the evidence before her, i.e. N20,000.00 and awarded the same to the appellant.
The respondent’s further argument is that on the appellant’s claim of N3,114,304.85k, the evidence before the lower court by the appellant as PW 1 was that he completed 80% of the work for stages 4 and 5, and hence entitled to payment for that stage. That the appellant; evidence with regard to this claim was inconsistent. In paragraph 18 of his statement of claim, the appellant pleaded as follows:-
“To further demonstrate good faith and in line with the terms of agreement, plaintiff has since executed the last 2 stages of work at the site being Electrical/Plumbing and the finishing which completed at over 80% ” SEE PAGE 5 OF THE RECORDS).
In his oral testimony on oath, the appellant as PW 1 testified as follows:-
“After the 3rd stage, we proceeded to the 4th stage which was plumbing and electrical and I finished and wrote to them on the completion of that stage ” (SEE PAGE 110 OF THE RECORDS)
The learned counsel asked as to how do we reconcile these two positions of the appellant. That in one breath, he did the last 2 stages to 80% completion. In another breath, he completed and wrote to the 1st Defendant. That the law is that a party must be consistent in stating his case and in proving it. He cannot take one stand in his pleadings and do a summersault by taking another while testifying on oath. That the law court will decree nothing in favour of such a slippery litigant. (SEE GREEN FINGERS AGRO-IND. ENT. LIMITED VS. YUSUF (2004) FWLR (pt 193) P. 202. That to do 80% of a job cannot be the same as completing the same job. The court cannot pick and choose which one to believe.
He has added that the N3414.304.08k is for what exactly? If it is for 80% of work done on stages 4 and 5, and as such how much is the total sum to make that amount 80% of it. If it is for the whole payment for those stages the relief runs counter to the pleadings. Who determines the percentage? What yardstick did the appellant use or how did he arrive at that? This becomes an issue in view of the fact that both in their statement of claim and oral testimony on oath, the respondents deny that assertion and rather, maintained that what the appellant did in respect of the 4th and 5th stages represents not more than 5% and 20% respectively.
That having regard to the state of pleadings on that point, the law expects the appellant to prove that he actually did up to 80% or completed the work. (Refer to AIYETORO COMM. TRADING COMPANY LIMITED VS. N.A.C.B LIMITED (2003) 12 NWLR (pt 834) p.346; 351.
He maintained that the appellant did not do so that the appellant left it to the court to assume or just believe him. That assumption or supposition is not the work or duty of the court. The court can only act on evidence validly put before it. SEE BARMANI VENTURES LIMITED VS. KINGSFOAM AND CHEMICAL IND. LIMITED (2002) FWLR (pt. 124) p. 412;420.
The respondents counsel has maintained that the lower court reviewed the evidence before it on this issue and after evaluating the same, came to believe the respondents and concluded that what the appellant did on those stages was not more than 5% and 20% respectively. That the lower court believed the version of the Respondents, since the Appellant was unable to establish that he did more. (SEE PAGES 150-151 OF THE RECORDS). Consequently the learned trial Judge awarded 5% and 20% of the amount due on those stages to the appellant.
The respondents’ counsel has averred that the learned trial Judge was extremely generous in making that award as the award ran against the tenets of EXHIBIT 1 the agreement between the parties. CLAUSE VI OF EXHIBIT 1 (under Developer’s Covenants provides thus:-
“The Developer shall make available to the contractor payments in accordance with the STAGE-BY-STAGE BASIS of the project as contained in the payment schedule here under appearing at the foot of those presents. PROVIDED that such payments shall only be made ONLY and after ONLY the Developer’s specialized consultants/site Manager shall have approved and confirmed completion in accordance with agreed schedules.” (SEE PAGE 10 OF THE RECORDS).
He has reiterated that the appellant did not lead evidence whatsoever that the 1st Respondent’s (Developer’s) specialized consultants/site Manager approved and confirmed completion of the work for stages 4 and 5. No job completion certificate for those stages. That the appellant was thus going by the TERMS OF EXHIBIT 1, (binding on the parties), not entitled to any payment at all for those stages. The 1st Respondent’s obligation could only arise upon completion of work for each stage. The respondent’s counsel has maintained that it is that award that the appellant wants this court to improve upon. That such invitation ought to be rejected.
The respondents counsel has maintained that there is evidence on record to support the trial court’s findings and conclusions in this case. Having gone over the arguments of the learned counsel for the appellant and the learned counsel for the respondent I agree with the learned counsel for the respondent that there is evidence on record to support the trial court’s findings and conclusions in this case. Consequently this issue is resolved against the appellant.
It is trite law that an award of damages either special or general, is not given as a matter of cause, but on sound and solid legal principles and not on speculation or sentiment. It is also not awarded at large or out of sympathy borne out of extraneous considerations, but rather on legal evidence of probative value adduced for the establishment of an actionable wrong or injury. Refer to A.S.E.S.A. VS. EKWENEM (2009) ALL FWLR (pt 491) 838; 847 and G.K.F.I (NIGERIA) LIMITED VS. NITEL PLC (2009) 15 NWLR (Pt 1164) p. 344; 350. The award was made by the trial Judge in disregard of principles and a such it is set aside. Thus the second issue is resolved in favour of the Respondent/Cross Appellant.
In conclusion the appellants appeal is hereby disallowed, and as such dismissed.
The Respondent’s cross appeal is hereby allowed and the award of N100,000.00 as general damages is set aside.
KUMAI B. AKAAH, J.C.A: I read in draft the judgment of my learned brother Mikailu, JCA. I agree with the conclusion that the main appeal has no merit and it is accordingly dismissed. The cross-appeal is allowed. The award of N100.000.00 as general damages will amount to double compensation since the lower court found that the defendant was owing the plaintiff 5% of the sum of W596.325.38 for the two units completed and 20% of the sum of N960.827.05 for the 5th stage of the job done by the plaintiff. The N100.000.00 award of general damages was arbitrarily made and so must be set aside.
NWALI SYLVESTER NGWUTA, J.C.A: I read before now the lead judgment prepared and delivered by my Learned Brother Mika’ilu JCA and I agree with the reasoning and conclusion reached.
I also dismiss the appeal and allow the Cross-appeal. I set aside the award of N100,000.00 as general damages.
Appearances
Ukpong Eba EsqFor Appellant
AND
B. Olusegun, EsqFor Respondent
