NIGER DELTA POWER HOLDING CO. LTD v. SCHOTTEK ENGR. CO. (NIG) LTD (2021)

NIGER DELTA POWER HOLDING CO. LTD v. SCHOTTEK ENGR. CO. (NIG) LTD

(2021)LCN/14985(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, February 02, 2021

CA/A/74/2019

RATIO

EVIDENCE: BURDEN OF PROOF IN CIVIL MATTERS

Burden of proof in civil matters is preponderance of evidence or balance of probabilities. See the cases of IMANA V. ROBINSON 1979 3-4 SC, DAODU V. NNPC 1998 2 NWLR PT. 538 355 and KALA V. POTISKUM 1998 3 NWLR PT. 540 1. The party who asserts must prove, otherwise, his case would fail and it does not matter whether or not the defence of the Defendant is weak. The Claimant must rely on the strength of his case and not the weakness of the defence. PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.

APPEAL: ATTITUDE OF THE APPELLATE COURT TO EVALUATION OF EVIDENCE

At this point, it is pertinent to state that which is basic and elementary in our administration of justice system for its emphasis that, evaluation of evidence and ascription of probative value to same is pre- eminently the duty of the trial Court. The appellate Court would not disturb the finding of the trial Court where there is no miscarriage of justice occasioned thereby, as the trial Court had the privilege of listening to the parties and watching their demeanor. See the cases of BALOGUN V. AKANJI 1988 1 NWLR 301 SC and GABRIEL ADEKUNLE OGUNDEPO V THOMAS E. OLUMESAN 2011 LPELR-1297 SC. PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Between

NIGER DELTA POWER HOLDING COMPANY LIMITED APPELANT(S)

And

SCHOTTEK ENGINEERING COMPANY NIGERIA LIMITED RESPONDENT(S)

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of the Federal Capital Territory, Abuja, delivered by Hon. Justice M. B. Idris on December 12th, 2018, wherein judgment was entered in favour of the Respondent (the Plaintiff at the Court below) in the sum of Eighty Million, Seven Hundred and Twenty-Six Thousand, Five Hundred and Five Naira, Ninety-five kobo only (N80,726,505.95) against the Appellant (the Defendant at the Court below).

The Respondent’s suit which was instituted as undefended was transferred to the General Cause List following the Ruling of the Court on January 16th, 2017. The Respondent, claimed vide its statement of claim against the Appellant as follows:
i. The sum of N80,726,505.95 (Eighty Million, Seven Hundred and Twenty-Six Thousand, Five Hundred and Five Naira, Ninety-five kobo only) being the sum due to the Plaintiff from the defendant for Farfaru Injection Works.
ii. The sum of N2 Million (Two Million Naira Only) as damages.
iii. 10% post Judgment interest sum from the date of Judgment until final liquidation of the Judgment sum.
iv. Cost of this action.

The case of the Appellant was that, it withdrew the letter of award of contract to the Respondent when it discovered that one Engineer S. C. Okafor, its former contract staff, was a Director in the Respondent’s Company. Secondly because, it found that the Respondent actually had the highest bid not the lowest due to some arithmetical error in the bill of quantities submitted which altered the award process in favour of the Respondent. The matter was tried with witnesses on both sides and adjudged in favour of the Respondent as earlier stated. The Appellant was dissatisfied and has come before this Court with its Notice of Appeal filed January 25th, 2019, with seven (7) grounds of appeal.

RELIEFS BEING SOUGHT BY THE APPELLANT
i. An order allowing this appeal.
ii. An order of this Honourable Court setting aside the judgment of the trial Court delivered on 12th December, 2018.
iii. An order of this Honourable Court dismissing the Plaintiff/Respondent’s Suit in the Court below.

Both sides according to the Rules of this Court filed and exchanged their briefs of argument. The Appellant’s is dated and filed on

March 12th, 2019 and settled by Abimbola Kayode Esq. who adopted same and urged that the appeal be allowed. The Respondent’s brief, filed on April 8th, 2019 and settled by C. A. Onyali Esq. was adopted by Mr. E. E. Izibili who urged that the appeal be dismissed.

ISSUES SUBMITTED BY THE PARTIES FOR DETERMINATION
The Appellant’s two (2) issues are as follows:
i. Whether the trial Court properly evaluated the evidence before it in arriving at its decision that the Respondent has proved its case on the preponderance of evidence (Grounds 1, 2, 5, 6, & 7).
ii. Whether the trial Court was right when it awarded the sum of N80,726,505.95 in favour of the Respondent (Grounds 3 & 4).

The Respondent’s sole issue is as follows:
i. Whether the Defendant/Appellant has made out a serious case of miscarriage of justice by the trial Court to enable this honourable Court to upturn the decision appealed against. Or in the alternative whether the trial Judge erroneously misconstrued the law when he anchored the award of N80,726,505.95 only against the defendant/appellant.

A singular issue is hereby formulated by the Court as empowered so to do, based on the Appellant’s issues 1 and 2 which, in my view will justly and fairly determine this appeal thus:
Whether or not the Court was right in the face of the evidence before it to have entered judgment in favour of the Respondent.

SUBMISSION ON BEHALF OF THE APPELLANT
Mr. Kayode Esq. submitted that the Appellant’s claim that, one Engr. S. C. Okafor, an erstwhile contract staff of the Appellant and a Director in the Respondent’s company, Exhibit 10, the certified true copy of Form C.07, particulars of Directors, used his position with the Appellant to get the contract awarded to the Respondent in violation of the Appellant’s employee handbook. He argued that since the Respondent never challenged nor controverted the allegation against Engnr. Okafor, it should therefore be deemed admitted by the Respondent. In support, he cited the cases of DANLADI V. DANGIRI 2015 2 NWLR PT. 1442 PG. 124, FIRST EQUITY SECURITY LTD. V. ANOZIE 2015 12 NWLR PT. 1473 P. 337 and AMICO CONSTRUCTION CO. LTD. V. ACTEC INT’L LTD 2015 17 NWLR PT. 1487 P. 146. That, if the Court evaluated Exhibit D1, its findings would have been different and it was wrong

for the Court not to have properly evaluated evidence before reaching a decision and cited in support the case of BASSIL V. FAJEBE 2001 11 NWLR PT. 725 P. 592. He asserted that, the letter of award was withdrawn because of the said allegation among other reasons, which led to the termination of the contract agreement between the Appellant and the Respondent. Further in that vein, that, as the Respondent failed to contradict the fact that, Engnr. Okafor was the one mandated to convey the withdrawal of the contract to the Respondent, it should also be deemed as an admission by the Respondent. He argued that, it was wrong for the Court to make no finding on the allegation that Engnr. Okafor used his position to assist the Respondent to get the contract, in spite of the fact that, Exhibit P2 was co-signed by him.

He submitted that the Court was wrong to have held that, it was the duty of the Appellant to communicate the termination of the contract to the Respondent as an internal memo cannot be relied upon to terminate a contract. Further that, parties were bound by their pleadings and the Court could not go outside it as the Appellant’s pleadings on the

alleged arithmetical errors in the computation of the submissions. He argued that, there was no evidence that the withdrawal of the contact was not communicated to the Respondent.

Further that, the contract was illegal ab initio since the Court found that there was a mistake or failure of the Appellant to abide by the provisions of the procurement Act in the award of the contract and the Court should have dismissed the Respondent’s case.

The learned Counsel contended, the Respondent failed to prove the specific sums claimed which were like special damages and must be proved and cited the case of UNILORIN TEACHING HOSPITAL V. ABEGUNDE 2015 3 NWLR PT. 1447 P. 421.

He argued that the signatures of the representatives of the Appellant were super-imposed on the document and/or fabricated as the Appellant did not execute the contract and as the Respondent was silent about it, it should be deemed as admission on its part and in support, cited the case of OLASEHINDE V. STATE 2019 1NWLR PT. 1654 P. 555. He asserted that, the materials used for the contract arrived at the site in 2016, when the contract had been withdrawn on December 16th, 2015. That,

there are material contradictions in the Respondent’s evidence and cited the case of WACHUKWU V. OWUNWANNE 2011 14 NWLR PT. 1266 P. 1.

He submitted that Exhibit P9 was merely dumped on the Court as the Respondent did not show their relevance to the Farfaru injection project and cited the case of OGBOJA V. ACCESS BANK PLC 2016 2 NWLR PT. 1496 P. 291. Further that, it was the duty of the Respondent to show that the Appellant authorized the issue of Exhibit P4 and that the Court was wrong to have held that the Appellant waived its right on the procedure for submission of invoices. In conclusion, he urged that the appeal be allowed.

SUBMISSION ON BEHALF OF THE RESPONDENT
Mr. Onyali submitted that, the Respondent discharged the burden of proof in the pursuit of its case and the Court was right when it held that the Appellant had waived its right under the contract. He argued that the Appellant never refuted awarding the contract to the Respondent and that it failed to prove the claim that Engnr. Okafor was their contract staff or that the handbook, Exhibit D1, applied to him. Further that the handbook which was never signed nor executed by the

Executive Management was unenforceable and therefore worthless and could not be relied upon. The Exhibit D2, the internal memorandum, did not contain the reason as claimed by the Appellant for the termination of the contract, neither was there proof of its service, or notice of termination of the contract on the Respondent. Therefore, its contents were of no effect as far as the decision therein was not formally communicated to the Respondent. Put in another way, the contract remained valid without the notification of termination. He submitted that the Court found that it was the Appellant that violated Section 32 (2) of the Procurement Act and that its mistake should not be visited on the Respondent. And submitted that, a party will not be allowed to benefit from its own wrong doing and cited the case of INYANG V. EBONG 2002 FWLR PT. 125 703.

The position of the Respondent he stated was that the Contract Agreement, Exhibit P1, was signed by both parties on November 30th, 2015, before the alleged internal memorandum, Exhibit D2, dated December 16th, 2016. And that the absence of a notice of withdrawal of the offer letter, Exhibit P 2, questions the

credibility of the internal memorandum. He argued that, from all intents and purposes, parties intended the agreement to bind them and cited in support the cases of NJIKONYE V. MTN NIG. COMMUNICATION LTD. 2008 9 NWLR PT. 1092, PTF V. WPC LTD 2007 14 NWLR PT. 1055 478, METIBAIYE V. NARELLI INTERNATIONAL LTD. 2009 16 NWLR PT. 1167 326 and DODO V. SALANKE 2007 ALL FWLR PT. 346 57.

He submitted that the Appellant ought to do more than the mere allegation of forgery of the signatures on the Contract agreement, Exhibit P2, the allegation being criminal in nature, there must be proof beyond reasonable doubt which the Appellant failed to do. In support, he cited the cases of EDOHOEKET V. INYANG 2010 7 NWLR PT. 1192 25, ESENOWO V. UKPONG 1999 6 NWLR PT. 608 611, OKOLI V. OLI 1962 1 SCNLR 307, AMADI V. ORISAKWE 2005 7 NWLR PT. 924 385 and Section 138 (1) Evidence Act. That, it was a misconception of the law on the part of the Appellant to argue that, there was no challenge with regard to the allegation by the Respondent. Rather, there was need for the Appellant to establish its case beyond reasonable doubt and cited the cases of BUHARI V. OBASANJO 2005 7 SCNJ 1,

ENEMCHUKWU V. OKOYE & ANOR. 2016 LPELR-40027 CA and EMEGOKWUE V. OKADIGBO 1973 NMLR 129. In conclusion, he urged that this appeal be dismissed in its entirety and the judgment of the Court below affirmed.

RESOLUTION OF THE SINGULAR ISSUE
For ease of reference, the sole ssue adopted is hereunder reproduced as follows:
SOLE ISSUE
Whether or not the Court was right in the face of the evidence before it, to have entered judgment in favour of the Respondent.

I have very carefully considered the submissions of both sides and the Record before this Court and having so carefully done, I proceed thus in the determination of this appeal.
The gravamen of the Appellant’s case is that the contract through which the Respondent came before this Court was terminated and therefore, there can be no liabilities there under to it and the sum of N80,726,505.95 (Eighty Million, Seven Hundred and Twenty-Six Thousand, Five Hundred and Five Naira, Ninety-five kobo only) could not have arisen in favour of the Respondent.

The Respondent as earlier stated, claimed that the contract remained, as no notice of termination was communicated to it

before it began performance and it had incurred liability in its performance which the Appellant cannot wish away but to pay for it, the sum of N80,726,505.95

From the foregoing, the Appellant denied that there was a contract which should render it liable in the sum claimed by the Respondent and denied in totality the case of the Respondent. I shall proceed with a consideration of the findings of the Court below.

The Court in its evaluation of the evidence before it found that Exhibit P2 was executed on behalf of the Appellant by its Managing Director/CEO and was witnessed by the Company Secretary/Legal Adviser. With regard to the Appellant’s position that the signatures were false, that they were

superimposed the Court stated on page 416 of the Record as follows:
“…………I agree with learned Counsel for the claimant that this is a criminal allegation that requires proof beyond reasonable doubt in accordance with Section 135 (1) E. A. IN PROF. ADEBAYO AKINKUGBE VS EWULUM HOLDINGS NIGERIA LIMITED & ANOR (2008) 4. S.C. 125 at 145 the Supreme Court held that the law is Sacrosanct that if allegation of crime by a party in a civil case is in issue, the party alleging must prove it beyond reasonable doubt. In order to prove that the signature were super imposed the defendant must called (sic) the Managing Director and the Company Secretary to deny signing the documents. They are thus vital witnesses in this regard.
I do not hold the view that the signatures were super imposed or fabricated … in simple terms I do not agree that the defendant did not sign Exhibit P2.”

At this point, it is pertinent to state that which is basic and elementary in our administration of justice system for its emphasis that, evaluation of evidence and

ascription of probative value to same is pre- eminently the duty of the trial Court. The appellate Court would not disturb the finding of the trial Court where there is no miscarriage of justice occasioned thereby, as the trial Court had the privilege of listening to the parties and watching their demeanor. See the cases of BALOGUN V. AKANJI 1988 1 NWLR 301 SC and GABRIEL ADEKUNLE OGUNDEPO V THOMAS E. OLUMESAN 2011 LPELR-1297 SC. One agrees with the position of the law expressed by the Court below on the allegation by the Appellant that, the signatures of its representatives were superimposed. From the finding of the Court, it therefore means that, the contract was signed between the parties and bound them.

The argument by the Appellant’s Counsel that the Court ought to have made a finding on the allegation that Engnr. Okafor used his position with the Appellant for the award of the contract to the Respondent in my opinion, cannot hold. It is not sufficient on any matter or an allegation for that matter, for the Appellant to make an allegation and leave it for the Court to prove, beef up or provide the missing link/piece. Notwithstanding that, the

Appellant was able to show that the said Mr. Okafor is a Director with the Respondent. There was no proof that he was also on the Appellant’s pay roll. No details of what he did or might have done with regard to the bidding for the contract. It was therefore not enough for the Appellant just to make the assertion without more. In that wise, there could not have been any finding in that regard.

The Appellant’s further claim is that, it withdrew the letter of award on 16/12/15 relying on its Internal Memorandum, Exhibit D2. By the testimony of DW1, Engnr. Okafor was instructed to inform the Respondent of the decision of the Appellant to terminate the contract. The learned Appellant’s Counsel argued that, there was no evidence that the notice of termination was not delivered. It could also be said and correctly that there was no evidence put forward by the Appellant that notice of termination was delivered particularly as none was tendered by the Appellant. Without doubt, proof that termination of the contract was indeed communicated was very necessary for the Appellant’s case and it rested on the Appellant squarely for its defence. The finding of the Court

in respect of this issue to the effect that there was no termination contrary to the claim of the Appellant in my view and humbly, cannot be faulted. The Court stated as follows on page 417 of the Record:
“The idea of internal memorandum is for the purpose or consumption of the organization. If the termination was approved by the executive committee, it is the duty of the defendant to communicate to the claimant the fact that the contract was terminated.
An internal memorandum cannot be relied upon to terminate the contract unless and until that decision is communicated to the defendant it is presumed that the contract was intact.”
And it held further on page 417 thus:
“The defendant had failed to notify the alleged termination of the contract to the claimant.”

Upon such correct finding, the Appellant cannot be said to be liability free especially as herein when the Respondent after the signing of the contract commenced performance of the contractual terms as found in evidence. With regard to the Appellant’s argument that, to give the contract to the Respondent, would violate the Procurement Act, as it was not the lowest bidder and

so the contract was terminated. The Court’s finding on this issue was one of justice and fairness as it stated as follows on page 418 of the Record and correctly in my view and humbly:
“The mistake or failure of the defendant to abide by the provision of the Public Procurement Act, I humbly submit cannot be visited on the claimant who mobilized to site and commence work as shown in Exhibit P9 made Pursuant to clause 6.1 of the contract Agreement (Exhibit P1).”

It found in clause 6.2(a) of the Contract on the issue of liability of the Appellant, having held that the contract subsisted between the parties, signed by the Appellant’s representatives, that; the Appellant received Exhibit 3, payment request as well as the Respondent’s invoice, Exhibit P8 and a payment certificate, Exhibit P4, which was certified by one Engnr. Yemi, whom the Appellant did not deny knowing. It also held and correctly that, by the issue of Exhibit P4, the payment certificate, the Appellant waived its right to complain that there was breach of the procedure for the submission of the invoice. It therefore concluded thus on page 419 on the overall:

“On the whole I am satisfied that the Claimant has proved his (sic) case on the Preponderance of evidence.”
And judgment was entered in the Respondent’s favour.

Having read thoroughly, the Record and all other processes on this appeal as afore stated, one cannot fault the position of the Court below. The sum being claimed is ascertainable and ascertained with documents in respect of same which were put before the Court and not contradicted particularly the invoice, Exhibit P8, on page 388 of the Record and payment certificate, Exhibit P4, on page 386 of the Record. One is consequently able to agree with the Court that the Respondent’s case was established on the preponderance of evidence.

In the result, this appeal cannot be allowed, it therefore fails. It is hereby dismissed accordingly. The judgment of Hon. Justice M. B. Idris of the High Court of the Federal Capital Territory, Abuja, delivered on December 12th, 2018, is hereby affirmed.

STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft of the judgment just delivered by my learned brother, Eifrieda Oluwayemisi Williams-Dawodu, JCA.

I agree fully with the reasoning and the conclusion which I adopt as mine. I too, do not find any merit in this appeal. The appeal is dismissed. No cost awarded.

PETER OLABISI IGE, J.C.A.: I agree.

Appearances:

Mr. A. M. Kayode with A. F. Ebiwunma For Appellant(s)

Mr. E. E. Izibihi For Respondent(s)