ONDO STATE DEVELOPMENT & PROPERTY CO. v. AJANAKU
(2020)LCN/15374(CA)
In The Court Of Appeal
(AKURE JUDICIAL DIVISION)
On Friday, September 25, 2020
CA/AK/198/2015
RATIO
JUDGMENT OF COURT: WHETHER ONE JUDGE CAN READ THE JUDGMENT WRITTEN BY A FELLOW JUDGE OF THE SAME COURT WHO IS NOT AVAILABLE TO DO SO.
The settled law therefore is that in deserving circumstances, there is nothing wrong with one judge reading the judgment written by a fellow judge of the same Court who is not available to do so. I find the argument of counsel that the mere act of delivering the judgment by Justice S. A. Sidiq amounts to taking over the case and completing it very tenuous. It is clear that his Lordship did nothing other than deliver the judgment. This case is clearly distinguishable from the case of NNADI V BRUNECLI CONSTRUCTION (NIG) LTD (2001) FWLR, PT 72, 2018 AT 2093 PARA F, cited by counsel as in that case it was clear that there were two judgments by two different judges. Also different is the case of SHUAIBU V STATE (SUPRA). There the Chief Judge heard and concluded a matter and adjourned for judgment. The Chief Judge retired in July 2017. The said judgment was purportedly signed by the retired Chief Judge on 13/12/2017 and delivered by the Ag. Chief Judge who took over from him on the said date. In the instant case the judgment was written and signed on the 27/01/2015. The judge in question retired in April, 2015. The only reason why he could not deliver the judgment before his retirement was as a result of the JUSUN strike, a notorious fact for which judicial notice should be taken. It is common knowledge that all the Courts across the country were on lock down due to this strike action, many for upward of eight months. This case cannot therefore fall under the conditions for which a written judgment of a judge cannot be delivered by another judge of the same Court. See EDIBI V THE STATE (2009) LPELR-8702 (CA) and SHUAIBU V STATE (SUPRA). PER PATRICIA AJUMA MAHMOUD, J.C.A.
ISSUES FOR DETERMINATION: ESSENCE OF THE RULE AGAINST PERMITTING JUDGES TO RAISE ISSUES SUO MOTU
A Court is said to raise an issue suo motu where the Court deems it desirable to decide on a technical or legal point on which it has not been addressed by counsel, and then it becomes imperative for the Court to ask parties to address her on it. In the case of FCMB V ACTION ALLIANCE (2018) LPELR-44445 (CA), this Court held that a Court can only be accused of raising an issue suo motu where the issue did not exist in litigation. That it will be wrong to say that inferences drawn from facts before the Court are introduced suo motu. In other words, when a judge raises an issue on his own motion not before the Court. See also IKENTA BEST (NIG) LTD V AG, RIVERS STATE (2008) 6 NWLR, PT 1084, 642, ENEKWE V IMBN LTD & ORS (2006) 19 NWLR, PT 1013, 146. It is clear that the rule against permitting judges to raise issues suo motu is essentially to stop the judge from descending into the arena or making a case for one of the parties. It is logical therefore that this only arises during hearing or proceedings. PER PATRICIA AJUMA MAHMOUD, J.C.A.
CONDITIONS TO BE SATISFIED BY A PARTY CHALLENGING THE ACCURACY OF THE RECORDS OF A COURT
A party is at liberty to challenge the record of the Court. The settled position of the law however, is that a party challenging the accuracy of the records of a Court must swear to an affidavit setting out the facts or part of the record of proceedings omitted in the records and serve the application together with the affidavit in support on the trial Judge and on the Registrar of the trial Court who may swear to a counter affidavit if they desire to counter the affidavit of the party challenging the records. Indeed, the process for impugning the record of a Court has been well settled by the Apex Court in the case of GARUBA V OMOKHODION (2011) 15 NWLR, PT. 1269, 145 AT 179-180 where the Court held that two processes are required to impugn the Court’s record. These include an affidavit challenging the record which must first be filed and served on the presiding officer of the Court or Tribunal for his reaction. This is then followed by a formal application seeking to amend the record. See also GONZEE NIG LTD. V NERDC (SUPRA); ADEGBUYI V APC (2015) 2 NWLR, PT. 1442, 1 AT 24; PASTOR IZE-IYAMU OSAGIE & ANOR V INEC & ORS (2018) 9 NWLR, PT. 1625, 507 AT 579-580 and OSANEBI V LAWRENCE & ORS (2018) LPELR – 46111 (CA). PER PATRICIA AJUMA MAHMOUD, J.C.A.
Before Our Lordships:
Oyebisi Folayemi Omoleye Justice of the Court of Appeal
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Patricia Ajuma Mahmoud Justice of the Court of Appeal
Between
ONDO STATE DEVELOPMENT & PROPERTY CORPORATION APPELANT(S)
And
ENGINEER OLAWALE AJANAKU RESPONDENT(S)
PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Ondo State High Court sitting in Akure in suit No: Ak/41/2007 BETWEEN ENGINEER OLAWALE AJANAKU and ONDO STATE DEVELOPMENT AND PROPERTY CORPORATION delivered on the 20th August, 2015.
By a further amended statement of claim dated 8th December, 2010 filed at the lower Court on 9th December, 2010, the Respondent as Claimant claimed against the Appellant who was the defendant as follows:-
1) Consultancy fees based on cost of “job concerned” i.e on N6,773,000,000 is N230,044,166.70
2) Reimbursable Expenses N147,289
Total N230, 191, 446.70
3) Interest at the rate of 23½% per annum with effect from 11th June, 2003 until judgment date.
4) Interest at the rate of 10% per annum on the judgement sum from the date of judgement until the final liquidation of the judgment debt.
Upon the full settlement of pleading on the 27/02/2013, parties went to trial. In proof of his case the Plaintiff testified in his own behalf as PW1 and called no other witness. Several exhibits were tendered through PW1 including some during cross examination. The case of the Plaintiff/Respondent as borne out of his evidence is that he was appointed by the Defendant/Appellant as its consulting engineer in the areas of Civil/Structural and Infrastructural Facilities on the Mass Housing Scheme through an offer letter, Exhibit A on the 7th December, 2002. This offer was accepted by the Respondent vide Exhibit B. The Plaintiff/Respondent was given Exhibits D, D1 and D2, the contour survey plans for the three proposed Housing Scheme to be located at Ibule along Ilesha Road; Oba Afunbiowo Estate along Idanre Road, Akure and at Ore along Okitipupa Road. The Plaintiff/Respondent carried out all necessary engineering designs and details of the project and submitted same to the defendant/appellant vide a letter dated 24th February, 2003 admitted and marked as Exhibit E. The Plaintiff/respondent submitted a total reimbursable expense of N147, 200 to the defendant/appellant vide a letter dated 26th February, 2003, marked Exhibit F. The plaintiff/respondent’s case also was that the express condition of his agreement with the defendant/appellant was that the consultancy fee payable to him would be based on the total cost of the Mass Housing Scheme which was N6,773,000,000 (Six Billion, Seven Hundred and Seventy Three Million Naira). The Plaintiff/respondent’s case was that the total consultancy fee due to him on the project was N230, 044,160.70k. He urged the trial Court to award the said sum in his favour since he had already completed his own part of the job as required of him. The whole project was eventually abandoned when a new government was elected. The case of the plaintiff/respondent was that the fee he claimed for stages I and II which was completed and enabled the defendant/appellant to invite contractors to bid for the job. That the termination of the contract should not affect payment for work he had already done at the request of the defendant/appellant.
The defendant/appellant in its defence denied the claims of the plaintiff/respondent and in support thereof called two witnesses and tendered some exhibits. The defence of the defendant/appellant essentially was that the Mass Housing Project in question was that of the Ondo State Government and not theirs. That in accordance with the extant Financial Regulations that govern all government parastatals, the defendant/appellant did not have the capacity to deal with any sum higher than N1, 000,000.
At the close of evidence, parties filed, exchanged and adopted written addresses. In a considered judgment of Hon. Justice C. E. T. Ajama dated 27th day of January, 2015, but delivered by Hon. Justice S. A. Sidiq on the 20th August, 2015, the Court entered judgment in favour of the plaintiff/ respondent in the sum of N230,044,166.70k and interest rate at the prevailing CBN rate and 5% per annum post judgment interest until the judgment sum is liquidated.
Dissatisfied with the judgment, the appellant filed a Notice of Appeal with fifteen (15) grounds dated and filed on the 24th August, 2015. However, this appeal was heard on the Amended Notice of Appeal filed on the 23/05/2017 but deemed on the 15/01/2018 also with fifteen (15) grounds of appeal.
Parties filed and exchanged briefs in compliance with the Rules of Court.
The appellant’s brief of argument settled by Mr Nasiru Oseni, was filed on 7th February, 2018 and deemed on the 18th October, 2018 wherein eight issues were distilled from the fifteen grounds of appeal for determination to wit:
1. Whether Honourable Justice S. A. Sidiq was right when he ignored the appellant’s motion dated 20th August, 2015 and proceeded to deliver the judgment in this case, despite the pendency of the said motion (Ground 1)
2. Whether or not, having regard to the facts and circumstances of this case, Honourable Justice S. A. Sidiq was right when his lordship raised the issue of his competence to deliver the judgment in this case suo moto 20th August 2015 and without first allowing the parties to address him on the issue, decided the issue and proceeded to deliver the judgment in the case, based on a purported directive of the Chief Judge of Ondo State (Grounds 2 and 3)
3. Whether, having regard to the facts and circumstances of this case, the delivery of the judgment in this case outside the mandatory period prescribed by the Constitution of the Federal Republic of Nigeria, 1999 (as amended) did not render the judgment a nullity and liable to be set aside on the ground that the delay in the delivery of the judgment occasioned a miscarriage of justice (Ground 4).
4. Whether there was a valid and enforceable contract between the respondent and the appellant in relation to the Ondo State Mass Housing Scheme Project and it was the appellant that employed the respondent to work under the Mass Housing Scheme Project, and if not, whether the learned trial judge was not wrong when he held that there was such a contract between the parties and that it was the appellant that employed the respondent to work under the scheme (Grounds 5, 6, 7, 8, 9 and 11).
5. Whether or not the respondent proved the claim for the sum of N230,044,166.70k awarded to him by the lower Court as “fees charged by the claimant for consultancy services rendered by the Plaintiff on the job concerned…” and also for the 5% (five percent) per annum post judgment interest awarded to him by the Court (Ground 10).
6. Whether or not the learned trial judge was right when he awarded pre-judgment interest to the respondent on the judgment sum of N230,044,166.70k at the rate proved by CBN, as at 15th February, 2007, the date when the suit was filed (Ground 13).
7. Whether or not the learned trial judge was right when he admitted inadmissible evidence, including exhibit Q in the case and refused to expunge them from the records on the ground that the appellant did not appeal against his ruling admitting the document in evidence (Ground 12).
8. Whether or not the judgment in this case is supportable, having regard to the totality of the evidence led by the parties and the denial of the appellant’s right to fair hearing in the case (Grounds 14 and 15).
The Appellant, upon receipt of the Respondent’s Brief of Argument filed an Appellant’s Reply Brief on 19th September, 2019 which was deemed as properly filed on 7th July, 2020.
At the hearing of the appeal on the 7th July, 2020, Mr Nasiru Oseni of Counsel for the appellant adopted his brief of argument and his reply brief as his oral arguments in this appeal. On issue (1) counsel submitted that prior to the delivery of the judgment the appellant had filed a motion challenging the competence of his Lordship to deliver the said judgment. That the learned trial judge ignored the motion and proceeded to deliver the judgment as he was directed according to him by the Hon. Chief Judge of Ondo State on the authority of AGF V ANPP & ORS (2003) 15 NWLR PT 840, 600. Counsel referred to the cases of KOTOYE V SARAKI (1991) 8 NWLR, PT 211, 638 and NDABA (NIG) LTD V ORABKWE (2003) FWLR, PT 171, 1693 AT 1708-1709, PARAS F-C and 1712, PARAS A-F to submit that the decision of his Lordship to deliver the judgment without first hearing the pending motion constituted an improper exercise of judicial discretion, occasioned a miscarriage of justice and was fatal to the subsequent proceedings in the case. Counsel referred to the case of VICTINO FIXED ODDS LTD V OJO & ANOR (2010) 4 SCM, 127 AT 136, PARAS D-E to submit that the Court should not go into the reason for the breach but only set aside the decision of his Lordship of 20th August, 2015.
Arguing issue (2), counsel submitted that the learned trial judge having raised the issue of his competence to pronounce the judgment of his learned brother suo motu and reached a decision on the issue without first giving the parties an opportunity to first address him on the issue renders the decision a nullity. Counsel relied on the case of OGWE V IGP (2015) AFWLR, PT 779, 1055 AT 1073, PARAS B-D. Counsel went to great length to cite various authorities and to submit albeit too forcefully that once a judge has retired he lacked jurisdiction to deliver a judgment or have one delivered on his behalf. That by the combined provisions of Sections 294 (1) and 295 (5) of the Constitution only a judge who heard the case and was therefore capable of having or losing an impression of the facts and evidence in the case could deliver judgment in the case. Counsel further argued that the case of AGF V ANPP (SUPRA) is distinguishable from the instant case. He urged us to depart from the decision as it was given per incuriam.
On issue (3) Mr Oseni submitted that the judgment in this case was delivered three hundred and ten days from the date of adoption of the final written addresses of the parties contrary to Section 294(1) of the Constitution, and renders the judgment null and void. Counsel referred to the case of MAMMAN V DAMBE (2002) FWLR, PT 86, 428 AT 443, PARAS E-F to contend that such a case will be set aside on appeal if it is shown that the delay in delivering the judgment occasioned a miscarriage of justice. That the period of ninety days prescribed by the constitution for the delivery of the judgment in this case expired on or about 12th January, 2015 but the judgment was not delivered until 20th August, 2015. That the time lapse would affect the memory of the learned trial judge as he seemed to have completely lost his perception of the case and the impression made on him by the witnesses. Counsel pointed out some findings of the trial Court which he termed errors and submitted that they support this assertion. Counsel argued that the delay in delivering the judgment led to a miscarriage of justice.
Arguing issue No 4, the learned counsel to the appellant submitted that there was no valid and enforceable consultancy contract or any contract at all between the parties in relation to the Ondo State Government Mass Housing Scheme Project. That Exhibits A and B which constituted the only contract between the parties is not a valid contract. That the respondents’ pleadings concerning his purported appointment are not supported by evidence. Counsel challenged the capacity of the appellant to contract with the respondent involving a financial exposure of more than N1,000,000. Counsel contended that this evidence was unimpeached and unchallenged by the respondent. That the learned trial judge failed to make a definite finding on the issue of capacity. Counsel also argued that consideration was not determined or agreed by the parties at the time of making the contract. That on the authority of ODUA INVESTMENT CO LTD V AKINYEMI (2002) FWLR, PT 84, 172, it was an incomplete contract and therefore invalid and unenforceable. That his Lordship abandoned the clear terms expressed in Exhibit A, relied on the oral hearsay evidence of the respondent and sought other extraneous documents like Exhibits C, D, D1 and D2 to fill up gaps and import the Ondo State Mass Housing Scheme Project into the transaction between the parties. Counsel submitted that this is speculation on the matter by the trial judge.
Mr Oseni submitted on issue (5) that the respondent having failed to establish the existence of a valid and enforceable contact between him and the appellant in respect of the Mass Housing Scheme was not entitled to the sum of N230,044,166.70 and post judgment interest awarded to him thereon.
Arguing issue (6), counsel submitted that the learned trial Judge having found that the respondents claim for 73.5% prejudgment interest pleaded was outrageous and unfounded ought to have dismissed the claim for interest from 11th June, 2003 till date of judgment. Counsel referred to the case of ECTO (NIG) LTD V GOODWILL & TRUST INV. LTD. (2011) AFWLR, PT 581, 1620 AT 1633, PARAS A-C to submit that a party can only claim a pre-judgment interest if provisions was made for it in the relevant agreement between the parties and thus must be pleaded and proved including the proper rate of interest and date from which it should commence.
On issue (7) Counsel submitted that the trial Judge admitted inadmissible evidence which he relied on in the judgment. Counsel listed these exhibits as D, D1, D2, I, T, U, J, K, L, and Q and urged the Court to expunge and discountenance them in the determination of this appeal.
On issue (8) Mr. Oseni submitted that the judgment of the trial Court was not based on proper evaluation of the evidence on record. That the trial was conducted in breach of the appellant’s right to fair hearing. Counsel referred to failure to issue them hearing notice of the date judgment was to be delivered, refusal of Hon. Justice S. A. Sidiq’s to hear the appellant’s motion challenging his Lordship’s competence to deliver the judgment in this case as evidence of the breach of the rules of fair hearing. Counsel referred to the case of ALAKE V. ABALAKA (2002) FWLR, PT. 88, 931 AT 944-945, PARAS H-A to urge the Court to hold from the proceedings the appellant’s right to fair hearing has been breached and for the Court to nullify and set aside the judgment. Counsel urged the Court to allow the appeal, set aside the judgment of the lower Court appealed against and substitute therefor an order dismissing the respondents’ suit at the lower Court.
The respondent’s brief of argument settled by F. Omotosho Esq, was dated and filed on 26th February, 2017 and deemed as properly filed on 27th February, 2019. Chief F. Omotosho of Counsel, for the Respondent adopted the brief as their legal arguments in opposition to the appeal. In it, Counsel formulated the following four issues for the determination of the Court:
a. Whether there was any application of the appellant pending before the trial Court delivered its judgment on 20th of August, 2015, which the Court did not entertain. (Ground 1)
b. Whether it is proper in the circumstances of this case to regard as invalid and a nullity the judgment delivered in this case by His Lordship Hon. Justice S. A Sidiq on the directive of the Chief Judge following the retirement in April 2015 of the learned trial Judge Hon. Justice C. E. T. Ajama who wrote, signed and dated the judgment 27th January, 2015 but could not deliver same before his retirement, due to the 5-month old industrial action embarked upon by the Judiciary Staff Union of Ondo State (JUSUN) from 1st of January, to 31st of May 2015. (Grounds 2 and 3).
c. Whether in the circumstance of this case, the judgment already written, dated and signed but could not be delivered within the statutory period allowed by the Constitution of Federal Republic of Nigeria 1999 as amended due to the five months prolonged industrial action of Judiciary Staff Union of Nigeria (JUSUN) has occasioned any miscarriage of Justice. (Ground 4).
d. Whether the trial Court was right in its award of judgment to the Respondent on his consultancy service rendered to the Appellant in respect of the Ondo State Mass Housing Scheme Project. (Grounds 5, 6, 7, 8, 9, 10, 11, 12, 13).
On issue (1) Counsel citing several authorities conceded that all motions, brought and pending before the Court, no matter how frivolous must be heard and a ruling delivered one way or the other before the Court can proceed to deliver its judgment. Counsel contended that in the instant case, the appellant who compiled the record, improperly placed the motion in question dated 20/08/2015 in volume 2 of the record at pages 579-591 before the final written addresses of Counsel dated 11/07/2014 and 05/05/2014 respectively. That going by the record of proceedings of the 20th August 2015, at pages 29 and 30 of the additional record, volume 3 where this was filed, there was no record of the motion in the Court’s file not to talk of it being brought to the attention of the Court before his Lordship delivered the judgment. That the improper placement of the said motion at page 579-591 is suggestive of the fact that the motion was indeed in the Court’s record when it was not.
Chief Omotosho submitted that even if the motion was properly before the trial Court which is not conceded, it is targeted at arresting the judgment of the Court. That such an exercise is not only alien to civil actions but must be highly deprecated by the Court. Counsel referred to the apex Court cases of UKACHUKWU V PDP & ORS (2013) LPELR – 21894 (SC) and NEWSWATCH COMMUNICATIONS V ATTAH (2006) 12 NWLR, PT 993, 144 AT 178-179. In answering the pertinent question whether the motion in contention was brought before the Court on 20/08/2015 before the Court delivered its judgment, counsel referred to paragraph 17 of the appellant’s affidavit in support of the motion, paragraphs 19, 20 & 21 of the appellant’s further and better affidavit and the respondent’s paragraphs 6, 7, 8 and 9 of his counter affidavit to answer this poser in the negative. That the failure of the appellant in its further and better affidavits to react to the respondents’ denial in this counter affidavit of such a motion being brought to the notice or attention of the Court is on the authorities of ASOL NIG. LTD V ACCESS BANK NIG. PLC, (2009) 1 NWLR PT 1149, 283 AT 303-304, PARAS G-H and 307, PARAS E-G; FIRST BANK OF NIG. PLC V NDARAKE 7 SONS NIG. LTD. (2009) 15 NWLR, PT 1164, 407 AT 414, PARAS E-F and AG, ONDO STATE V AG, EKITI STATE (2001) 17 NWLR, PT 743, 706 AT 749-750 deemed admitted. Counsel also argued that filing and serving the respondent’s Counsel with the motion in Court on the date set down for the delivery of judgment ran foul of the ONDO STATE HIGH COURT PRACTICE DIRECTION, No.1, paragraph 4a of 2013 and the decision of this Court in the case of EKWEOZOR & ANOR V SAVANNAH BANK & ORS (2016) LPELR – 42128 (CA). That assuming without conceding that the appellant’s application was pending before the Court at the time judgment was delivered, on the authority of BELL VIEW AIRLINES LTD V CARTER HARRIS (PROPRIETARY) LTD (2017) AFWLR, PT 869, 923 AT 959-960, PARAS G-A, the instant case falls within the exception of the general rule that failure of a Court to hear a pending application would ipso facto amount to a breach of the right to fair hearing. On the contention of the appellant that he had no notice of the judgment, Counsel relied on the case of CHIME V CHIME (2001) 3 NWLR, PT 701, 527 to submit that any such failure is a mere irregularity which has no effect on the substance of the judgment or the jurisdiction of the Court.
Arguing issue (2), Counsel contended that as evident from page 657 of the records, hearing in this matter commenced before his Lordship, Hon. Justice C. E. T. Ajama (RTD) on the 27th of March, 2012 and concluded on 14th October, 2014 when written addresses of Counsel were respectively adopted and the case adjourned to 26th November, 2014 for judgment. That on the 26th November, 2014 the Court did not sit and no further date was communicated to parties until the Court recessed for the Christmas and New year vacation for that year. The Court could not reopen in January of 2015 as expected because of the prolonged industrial strike action embarked upon by the Judiciary Staff Union of Nigeria (JUSUN). The Ondo State branch of the Union called off their strike only on the 1st of June, 2015. That meanwhile Hon. Justice C. E. T. Ajama who had written, signed and dated the judgment since 27th January, 2015 could not deliver same until his mandatory retirement upon attaining the statutory age of sixty five years in April, 2015.
That after resumption, the Hon Chief Judge of Ondo State directed Hon. Justice S. A. Sidiq to deliver the said judgment which he did on the 20th August premised on the case of AGF V ANPP (SUPRA). That the said case was decided on Section 294 of the Constitution as well as Sections 21 and 23 of the Federal High Court Act, LFN, CAP 134, 1990 which sections are in pari material with Sections 34 and 40 of the Ondo State High Court Law cap 62, 2006. That learned Counsel is therefore misconceived that the case of AGF V ANPP (SUPRA) is not applicable to the instant case.
On the appellant’s contention that Hon. Justice S. A. Sadiq raised the issue of his competence to deliver the judgment suo motu without giving the parties a hearing, Counsel submitted that his Lordship merely acted on the memo of the Chief Judge and the case of AGF V ANPP (SUPRA). Counsel relied on the authorities of ADETULA V AKINYOSOYE (2017) 16 NWLR PT. 1592, 492 AT 517-518; ATAGO V NWUCHE (2017) 1 NWLR, PT. 1545, 147 AT 172, PARAS D-F; MAINSTREET BANK LTD. V BINNA (2016) 12 NWLR, PT. 1526, 316; MABAMIJE V OTTO (2016) 13 NWLR, PT. 1529, 171; EGBUCHU V CC MB PLC (2016) 8 NWLR, PT. 1513, 192 and INEC V OGBADIBO LG (2016) 3 NWLR, PT. 1498, 167 to contend that the instant case falls within the exception to the general rule that where a Court raises an issue suo motu the parties should be heard before the Court makes a decision thereon.
On the contention that Hon. Justice S. A. Sidiq took over the case and completed it, Counsel submitted that the case of NNADI V BRUNECLI CONSTRUCTION (NIG) LTD (2001) FWLR, PT. 72, 2081 AT 2093, PARA F is distinguishable from the instant case. That in that case there were two judgments but in this case Hon. Justice Sidiq had no judgment of his own. Counsel urged the Court to resolve this issue in favour of the respondent.
On issue (3), Counsel submitted that where there is non-compliance with Section 294(1) of the Constitution it is sufficient if cogent and verifiable reasons are given why there is non-compliance. Counsel also referred to a number of decided authorities to contend that the important consideration is that the appellant shows that such non-compliance has resulted in a miscarriage of justice to him. That the appellant has failed to show how the perceived non-compliance has affected the decision of the Court against him. In other words that the appellant failed to show that had it not been for the perceived errors, a more favourable decision would have been given to it. Counsel also urged the Court to resolve this issue in favour of the respondent.
Arguing issue (4), Counsel submitted that the learned trial Judge properly evaluated the evidence particularly Exhibits A and B before making his award in favour of respondent.
That the appellant failed to show that the judgment of the trial Court is perverse especially having embraced the fact of an existing contract in support of its 4th amended of defence and the testimony of DW1. That the prerogative to evaluate the evidence is that of the trial Court. That having not shown that the judgment is perverse, this Court will not disturb the findings of the lower Court which is unimpeachable. Counsel further submitted that so long as the judgment of the trial Court can be supported by the evidence adduced as in this case, this Court will not disturb the finding and evaluation of evidence. Counsel argued that the trial Court not only reviewed the oral evidence of the parties, but his Lordship painstakingly and exhaustively examined, reviewed and evaluated the documentary along with the submissions of counsel before making his findings. That in the circumstances of this case, Exhibit A does not have to expressly provide that the Respondent would be engaged as consulting Engineer in the Mass Housing Scheme to make it binding. Counsel referred in particular to clauses, 02 and 03 of Exhibit A to submit that the respondent was engaged by the appellant as its consulting engineer in civil/structural engineering and infrastructural facilities. That on the authority of MULTI CHOICE NIG LTD V AZEES (2010) AFWLR, PT 524, 161 AT 169, PARAS B-F “job concerned” in clause 03 of Exhibit A is an implied term for the Mass Housing Scheme Project. That contrary to the submission of the appellant there was no payment clause in the contract for the consultancy services. Clause 03 of Exhibit A gives the appellant the latitude to negotiate the fees.
That based on this clause the respondent forwarded bills vide Exhibits F, G, J and K to the appellant for the said negotiation to which the appellant never responded. Counsel referred to the case of VASMANI V JOHNSON (2000) 11 NWLR, PT 679, 582 (CA) to submit that this failure amounts to a tacit admission of Exhibits F, G, J and K, i.e the bills forwarded to them by the respondent. Counsel submitted that the trial judge was right to award judgment in favour of the respondent in the claimed sum of N230,044,166.70 plus interest. Counsel urged the Court to resolve all the issues in favour of the respondent and dismiss this appeal as unmeritorious and with substantial costs.
I shall resolve this appeal based on the eight issues formulated by the appellant. However, some of the issues overlap. Where this happens, I would treat them together. In this regard I will be treating issues 1, 2 and 3 together. They all deal with the issue of delivery of the judgment by Hon. Justice S. A. Sidiq, a different judge from, Hon Justice C. E. T. Ajama, the judge who heard the matter from the beginning to the end, wrote the judgment, I dated and signed it.
The first point in this now tripartite issue is whether Justice S. A. Sidiq was right when he ignored the appellant’s motion dated 20th August, 2015 and proceeded to deliver the judgment. The motion in question is contained at pages 579 through to 585. Curiously, the same motion is repeated at pages 586-591, perhaps to make assurances doubly sure! The respondent’s counsel did raise the issue of the placement of the motion before the final addresses of counsel in the records to give the wrong impression that the motion was in the Court’s record when it was not. I have taken a second look at the relevant pages of the record. The process just before the motion is the voluminous “Defendant’s Reply on points of law to claimant’s final written Address” dated and filed on 22/09/2014 contained at pages 541-578. Coming immediately after the motion is the “Defendant’s Final Address,” dated and filed on the 5th May, 2014, running from pages 592-627. So yes, it is true that this motion appears to be squeezed in between processes filed in 2014 and certainly out of place. However, I will not dwell on that. This is for the simple reason that the arrangement of processes in the records depends on who compiles the records. The order does not necessarily indicate the order the processes were filed. The important consideration always is the date of filing. It therefore does not matter in the circumstances whether the motion came at page 1 instead of the Writ of Summons, in the middle of the record. That may produce some tardy results but does not in any way distract from the substance of the record. It does not also remove from the fact that the motion was dated and filed on the 20th August, 2015. This takes us then to the proceedings of 20/08/2015, the date Hon. Justice S. A. Sidiq delivered the judgment. This is contained at pages 29-30 of the Additional Record. For the avoidance of doubt, I reproduce the proceedings:
“Claimant is present.
Defendant is absent
Tunde Olofunsawo with him is Wale Omotosho for the claimant.
No appearance for the defendant.
Court:- Carbon copies of hearing notices prepared are in the case file but there is no proof of service of the notices. Although Tunde Olofinsawo informed the Court that he was serve (sic) with the hearing notice yesterday. On enquiries by the Court to know whether same was serve (sic) on counsel to the defendant, a Staffer of the Deputy Sheriff and or bailiff section, one Mr. Omolafe Olarewaju informs the Court that they are not aware of the hearing notices. He says he is in charge of serving processes in Court No. 4 case is therefore stood down till 2.00 p.m. to enable the sheriff to effect service of the hearing notice on counsel to the defendant put the affidavit of service in the case file.
Case recalled.
Claimant is present.
Defendant is absent.
Tunde Olofunsawo with him is Wale Omotosho for the claimant.
Nasiru Oseni for the defendant.
COURT: The judgment in the case is hereby delivered as per the instruction of the Honourable Chief Judge as contained in the Memo dated 10th August, 2015 from the office of the Acting Chief Registrar. The memo is to the effect that the trial Judge in this case C.E.T. Ajama was unable to delivered(sic) the judgment he had written, signed, sealed and delivered to the Acting Chief Registrar because of his inability to deliver it before his retirement from the Bench due to prolonged JUSUN strike.
In view of the case of AGF V All Nigeria Peoples Party & Ors (2003) 15 NWLR (pt 844) 600 (CA) cited in the memo, I am convinced that I am in a position to read the Judgment already written, signed, sealed and kept in the custody of the Acting Chief Registrar.
(Sgd.)
HON. JUSTICE S. A. SIDIQ
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A close look at these proceedings shows that the appellant’s counsel was in Court on the 20/08/2015. There is no evidence that the appellant’s counsel raised any issue about any pending motion before the learned trial judge delivered the judgment. Can it be correctly said that his Lordship ignored a pending motion in the face of these proceedings? The simple answer is ‘no’. The trite position of the law is that the Court and the parties are bound by the record of appeal as certified. There is presumption of regularity pursuant to Section 168(1) of the Evidence Act, 2011 until this presumption is rebutted: GONZEE (NIG) LTD. V NERDC (2005) 13 NWLR, PT. 943, 634.
A party is at liberty to challenge the record of the Court. The settled position of the law however, is that a party challenging the accuracy of the records of a Court must swear to an affidavit setting out the facts or part of the record of proceedings omitted in the records and serve the application together with the affidavit in support on the trial Judge and on the Registrar of the trial Court who may swear to a counter affidavit if they desire to counter the affidavit of the party challenging the records. Indeed, the process for impugning the record of a Court has been well settled by the Apex Court in the case of GARUBA V OMOKHODION (2011) 15 NWLR, PT. 1269, 145 AT 179-180 where the Court held that two processes are required to impugn the Court’s record. These include an affidavit challenging the record which must first be filed and served on the presiding officer of the Court or Tribunal for his reaction. This is then followed by a formal application seeking to amend the record. See also GONZEE NIG LTD. V NERDC (SUPRA); ADEGBUYI V APC (2015) 2 NWLR, PT. 1442, 1 AT 24; PASTOR IZE-IYAMU OSAGIE & ANOR V INEC & ORS (2018) 9 NWLR, PT. 1625, 507 AT 579-580 and OSANEBI V LAWRENCE & ORS (2018) LPELR – 46111 (CA).
There is an affidavit dated and filed on the 31st August, 2015 and a further and better affidavit dated and filed on the 1st September, 2015. The affidavit does not relate to the proceedings of 20/08/2015. The better and further affidavit which mentions the proceedings only narrated what according to the appellant happened on the said date. The affidavits of service show that Hon. Justice C.E.T. Ajama (RTD) and Hon. Justice S. A. Sidiq were served with the affidavit and further and better affidavit on 01/09/2015 and 16/09/2015 respectively, long after the proceedings. Neither of them reacted to it which is just as well as they had been overtaken by events. But assuming for the purpose of covering the field that the further and better affidavit is a proper affidavit challenging the proceedings; it was filed after the proceedings, on the 1st September, 2015. It was not served on the Registrar of the Court, the only officer who could properly react to it. Justice S. A. Sidiq, having become functious officio from the 20/08/2015. Assuming still that this infraction is over looked and the said further and better affidavit is taken as an affidavit challenging the records, there is no application filed by the appellant, heard and determined in its favour. It is only upon this that they could amend the record to reflect the omission. Outside this and on the authorities earlier cited, I cannot look at any affidavit of the appellant tending to challenge the record of Court of 20/08/2015. To urge us to do so in the circumstances amounts to calling on this Court to speculate as to what transpired at the trial Court on the 20th August, 2015. This the Court cannot do:OGIDI V STATE (2005) 5 NWLR, PT. 918, 286; OGLIOKO MEMORIAL FARMS LTD. V NACB LTD (2009) AFWLR, PT. 419, 400 and UKAM V EFCC & ANOR (2012) LPELR – 9581 (CA). It follows therefore that the appellant having failed to successfully challenge the records cannot be heard to argue that there was omission or misrepresentation in the records. I therefore hold that from the records of the proceedings of 20/08/2015, there was no motion pending before the Court and there was nothing for his Lordship Hon. Justice, S. A. Sidiq to have ignored. This holding is fortified by the experience of this Court that when processes are filed in the Court on the day of hearing or even the day before the Court’s copies are never found in the file unless the party or their Counsel brings up the fact of a pending motion to the attention of the Court, only then will the Court become aware of it. In the instant case, the Court had sat in the morning and stood the matter down to 2:00 pm because the appellant’s Counsel had not been served with hearing notice. It is unlikely that the registry would take the motion filed after the Court had started sitting to the bench to put in the file. In sum, I resolve this issue (1) against the appellant.
The ancillary point which is issue 2 in this tripartite issue is whether his Lordship raised the issue of his competence to deliver the judgment suo motu without allowing parties address him. In the High Court of Ondo State, like every High Court of the States and Federal, the Chief Judge has the responsibility to assign cases to his brother judges subject to delegation of this power. It was in exercise of this power that the Chief Judge issued the Memo to his Lordship directing him to deliver the judgment. His Lordship did not hear the case or write the judgment. It was completely appropriate to explain how he came to be delivering the judgment in the circumstances and he cited an authority to support his capacity to do so. I do not see the action of his Lordship as raising an issue of his competence suo motu and deciding it without giving parties a hearing in the circumstances. A Court is said to raise an issue suo motu where the Court deems it desirable to decide on a technical or legal point on which it has not been addressed by counsel, and then it becomes imperative for the Court to ask parties to address her on it. In the case of FCMB V ACTION ALLIANCE (2018) LPELR-44445 (CA), this Court held that a Court can only be accused of raising an issue suo motu where the issue did not exist in litigation. That it will be wrong to say that inferences drawn from facts before the Court are introduced suo motu. In other words, when a judge raises an issue on his own motion not before the Court. See also IKENTA BEST (NIG) LTD V AG, RIVERS STATE (2008) 6 NWLR, PT 1084, 642, ENEKWE V IMBN LTD & ORS (2006) 19 NWLR, PT 1013, 146. It is clear that the rule against permitting judges to raise issues suo motu is essentially to stop the judge from descending into the arena or making a case for one of the parties. It is logical therefore that this only arises during hearing or proceedings. In the instant case where the judge was only going to deliver a judgment, I do not see any issue that can be raised that is germane to the evaluation of the facts of the case or will be unfair to the appellant. This may have been the case if his Lordship had given the respondent a hearing without giving the appellant such an opportunity. There was neither a trial nor an appeal. The issue whether or not his Lordship was competent to deliver the judgment was an appealable issue. I am unable therefore to see how this amounts to a breach of fair hearing as being touted by the appellant.
It has become the fad for lawyers when they have a weak case to put on the toga of breach of fair hearing to every situation. This certainly does not constitute such a breach. Appellant has failed to establish same. Besides, in the case of ODIASE & ANOR V AGHO & ORS (1972) 3 SC (REPRINT), 69, the Supreme Court long ago in establishing that this rule is not inflexible held per Lewis JSC as follows:-
“This Court is certainly entitled in its discretion to take points suo motu if it sees fit to do so, but it is not the normal practice, and it is done only if we think in the special circumstances of the case that justice demands it, such as on a fundamental issue as to whether the trial Court had jurisdiction”
The Court expressed the position more distinctly and unambiguously when it held in the case of OMOKUWAJO V FRN (2013) 9 NWLR, PT 1359, 300 AT 332:
“… the need to give the parties a hearing when a judge raises an issue on his own motion or suo motu, would not be necessary if (a) the issue relates to the Court’s own jurisdiction.”
The issue of another judge delivering the judgment written by a brother judge is an issue that goes to the competence of his Lordship to deliver same and consequently to the jurisdiction of the Court to deliver the said judgment. In the above premise of the law as stated the issue of the competence of Hon. Justice S. A. Sidiq to deliver the judgment of his learned brother was an issue he could raise suo motu for which the need to hear the parties was not necessary as contended by the appellant. See also, MOSES V STATE (2006) 11 NWLR, PT 992, 458; ADETULA V AKINYOSOYE (2017) 16 NWLR, PT 1592, 492 AT 517-518 and FBN V AGBAKWURU (2018) LPELR-43639 (CA).
The other contention of the appellant is whether Justice S. A. Sidiq acted in error when he delivered the judgment of his learned brother. The undisputed fact between the parties and as borne out of the records is that Justice C. E. T. Ajama commenced hearing in this case on the 27th March, 2012 and concluded it on the 14th October, 2014 with the adoption of written addresses on the said date. The matter was then adjourned to 26th November, 2014 for judgment. However the Court did not sit on the 26th November, 2014 and no further date was communicated to parties before the end of 2014. In January 2015, the Court could not resume from their Christmas break as Judiciary Staff Union of Nigeria (JUSUN) had embarked on an Industrial strike action in early January nationwide. This strike action was not called off in Ondo State until 1st June, 2015. In the interim Justice C.E.T Ajama had written and signed the judgment on the 27th January, 2015. His Lordship retired in April 2015 upon attaining the statutory retirement age of sixty five years. His learned brother Justice S. A. Sidiq delivered the said judgment upon assignment to him to do so by the Chief Judge on the 20/08/2015.
The contention of the appellant that this action of Justice S. A. Sidiq in delivering the judgment was wrongful and without jurisdiction has been answered by this Court in the case of AGF V ANPP (SUPRA) which authority was relied on in the memo of the Hon. Chief Judge of Ondo State. The case is almost on all fours with the instant case. There Justice O. J. Okeke of the Federal High Court heard the entire case to completion, wrote and signed the judgment on 27th January, 2002. The judgment was delivered by his learned brother Justice Egbo-Egbo on the same date. On appeal challenging the validity of the said judgment, this Court per Oguntade, JCA (as he then was) held as follows:
“I do not see why a judge of the High Court cannot deliver the judgment written and signed by another judge who happens to be unavailable to deliver it.”
It is significant as submitted by learned counsel to the respondent that this case was decided on the Court’s interpretation of Sections 21 & 23 of the Federal High Court Act which he argued is in pari material with Sections 34 and 40 of the Ondo State High Court Law Cap 62, Laws of Ondo State, 2006.
Section 21 of the Federal High Court Act Provides:
“Where the judge who is presiding over the sitting of the Court is for any cause unable or fails to attend the same on the day appointed, and no other judge is able to attend in his stead, the Court stand adjourned from day to day until a judge shall attend or until the Court shall be adjourned or closed by order under the hand of a judge.”
In interpreting this Section, the Court in AGF V ANPP (SUPRA) held further thus:
“Thus, it is demonstrably clear that the legislature itself contemplates that situations may arise in which some other Judge may lawfully attend and preside instead of the judge who was scheduled to preside over a particular cause or matter. Such a judge in my view can do a number of Court business including delivery of judgment prepared by another judge.”
The decision in AGF V ANPP (SUPRA) has been followed in a number of cases in this Court: IPC (NIG) LTD V NNPC (2015) LPELR-24652 (CA); WULGE V OLAYINKA (2017) LPELR-43356 (CA) and SHUAIBU V STATE (2019) LPELR-46688 (CA).
The settled law therefore is that in deserving circumstances, there is nothing wrong with one judge reading the judgment written by a fellow judge of the same Court who is not available to do so. I find the argument of counsel that the mere act of delivering the judgment by Justice S. A. Sidiq amounts to taking over the case and completing it very tenuous. It is clear that his Lordship did nothing other than deliver the judgment. This case is clearly distinguishable from the case of NNADI V BRUNECLI CONSTRUCTION (NIG) LTD (2001) FWLR, PT 72, 2018 AT 2093 PARA F, cited by counsel as in that case it was clear that there were two judgments by two different judges. Also different is the case of SHUAIBU V STATE (SUPRA). There the Chief Judge heard and concluded a matter and adjourned for judgment. The Chief Judge retired in July 2017. The said judgment was purportedly signed by the retired Chief Judge on 13/12/2017 and delivered by the Ag. Chief Judge who took over from him on the said date. In the instant case the judgment was written and signed on the 27/01/2015. The judge in question retired in April, 2015. The only reason why he could not deliver the judgment before his retirement was as a result of the JUSUN strike, a notorious fact for which judicial notice should be taken. It is common knowledge that all the Courts across the country were on lock down due to this strike action, many for upward of eight months. This case cannot therefore fall under the conditions for which a written judgment of a judge cannot be delivered by another judge of the same Court. See EDIBI V THE STATE (2009) LPELR-8702 (CA) and SHUAIBU V STATE (SUPRA). In the circumstances of this case it is not the actual date of delivery of the judgment that is relevant but the date the judgment was written and signed which was well outside the retirement period of his lordship. That his Lordship could not deliver the judgment was due to a ‘force majeure’ of some sort caused by JUSUN. I hold that the judgment was validly delivered. I would borrow the words of I. T. Muhammed, JCA (as he then was) in the case of AGF V ANPP (SUPRA) in reiterating this fact and amplifying the effect of holding otherwise:
“I do not think it will be championing the cause of justice to regard a judgment which was validly written through the normal process of judgment writing after all hearing was concluded but because of some circumstances which make its delivery by its writer impracticable, that the judgment is invalid and a nullity. To think otherwise will be laying premium on technicality, which all Courts of law, nowadays distance themselves from.”
On breach of Section 294(1) of the Constitution, with respect to the delivery of the judgment outside the prescribed time frame of 90 days, the judicial interpretation is as submitted by the respondent. In other words that a judgment delivered after ninety (90) days is not automatically invalidated as contended by the appellant. The Court requires that the appellant show how the delay has led to a miscarriage of justice against him. DIKE V KAY KAY CONSTRUCTION LTD (2017) 14 NWLR PT 1584, 1 AT 74, PARAS E-F; ALIMI V KOSEBINU (2016) 17 NWLR, PT 1542 AT 357, PARAS A-B; REYNOLDS CONSTURCTION COY LTD V ODIGIE (2018) LPELR-44776(CA); AKOMA & ANOR V OSENWOKWU & ORS (2014) 11 NWLR, PT 1419, 462. What is constant in this line of cases is that a judgment delivered outside the 90 days is valid except the appellant can satisfy the Court that the non-delivery of the judgment has occasioned a miscarriage of justice to him. The argument of the appellant that the miscarriage of justice occasioned is that the learned trial judge lost his perception of the evidence because of the length of time is preposterous to say the least. This is a Court of record with all the evidence on record. This is why an appellate Court is able to evaluate the evidence in a case to determine whether or not the decision is perverse. Counsel must have misconstrued what miscarriage of justice is to have narrowed it down to error in findings and perverse findings not supported by evidence. The learned trial judge put a footnote as to why the judgment was delayed in his own case by only 14 days. This Court takes judicial notice of why the judgment was delayed. It is also mischievous for the appellant to have taken the period of the JUSUN strike into account in computing the delay. Again, contrary to the contention of the appellant, the Court is obliged to invoke the presumption of regularity in favour of the judgment/pursuant to Section 168(1) of the Evidence Act, 2011. The onus is on the appellant to rebut this presumption which he has failed to do. He cannot invite the Court to speculate on whether the judgment was written and signed in January or June or August. The Court is entitled to presume that it is what it says it is until the appellant rebuts same which they have failed to do. The delivery of the judgment outside the statutory period of ninety (90) days has not vitiated the judgment of the lower Court. From my findings thus far issues 2 & 3 are also resolved in favour of the respondent.
Issues 4, 5, 6, 7 and 8 will all be taken together. Was there a valid contract between the parties in this case? In answering the question in the negative the appellant’s counsel gave what I regard as a very long and unuseful treatise on the law of contract. I do not share counsel’s theoretical approach as a practical module for problem solving in this circumstance. The issue here is whether Exhibits A and B have created any arrangement that can be legally binding. The general presumption is that parties to an agreement such as is contained in Exhibits A and B intend to create legal relations: ESSO PETROLEUM LTD V COMMISSIONER OF CUSTOM AND EXCISE (1976) 1 WLR, 1. Such a presumption cannot be rebutted by merely trying to establish non compliance of the document/agreement to the fine features of what the appellant terms a valid contract. This is especially so in the instant case where the contract in question is not a commercial contract, but one of employment or service. There is no doubt from Exhibit A that it was issued to the respondent by the appellant. This much is conceded by the appellant. This is confirmed by the appellant’s admission in paragraph 3 of its further (4th) amended statement of defence filed on the 1st November, 2012. Exhibit A is very explicit. First, it is written on the letter headed paper of the appellant, addressed to the respondent and dated 2nd December, 2002. It is signed by Mr. A. O. Akintoroye who is shown in Exhibit D to be the appellant’s Director of works & services. It provides in part as follows:
“With reference to your application on the above caption and consequent upon the meetings that had taken place on same, I am directed to inform you that your application has been approved.
02. You are HENCEFORTH TO ACT IN THE CAPACITY OF THE CORPORATION’S CONSULTING ENGINEER IN THE AREAS OF CIVIL/STRUCTURAL ENGINEERING and INFRASTRUCTURAL FACILITIES.” (Emphasis provided)
Exhibit A is categorical that the respondent was appointed as the appellant’s Consulting Engineer. Exhibit B confirms this when the respondent accepted the offer as the Corporation’s Consulting Engineer. Any suggestion in the face of these pieces of evidence that the respondent was working either for the Consulting Architects, FIAARK Design Group or the Ondo State Government is preposterous to say the least. The admission that the respondent was issued a consultancy contract by the appellant was put beyond doubt in the memo written to the Executive Chairman of the appellant by its Secretary/Legal Adviser on the 24/11/2014. This is contained at pages 15-18 of the Additional Record transmitted to this Court on the 26th February, 2015. It states at page 18 thereof as follows:
“It is considered necessary meanwhile to advise that heads of the corporations departments should be directed to desist henceforth from executing legal duties, because they are not trained to do so. It would be recalled that what led to this multi-million-naira law suit was an OPEN-ENDED LETTER OF CONSULTANCY CONTRACT ISSUED BY THE DIRECTOR OF WORK & SERVICES SOMETIME IN 2002.”
Again, the testimony of DW1, Mr Akintoroye is very instructive on this point. A careful perusal of the evidence of this witness shows glaringly, a witness who tried to suppress any evidence that tended to further the case of the respondent. This led him to make some obvious contradictions. Nonetheless his evidence does confirm the existence of a consultancy agreement between the appellant and the respondent:
“Plaintiff was never appointed the consultant to the Mass Housing Project. Before the project CAME UP, THE PLAINTIFF HAD BEEN APPOINTED AS CONSULTANT TO THE CORPORATION (Defendant) Exhibit A is identified by DW1. But the defendant had a role to play in the Mass Housing Scheme… At no time was the plaintiff informed of any role that he was to play in the Mass Housing Scheme. However, THE PLAINTIFF WAS INVOLVED SOMEHOW IN THE MASS HOUSING SCHEME… Under THE CONSULTANCY GIVEN TO THE PALINTEFF, we did not give him any job to do and he did not do any work for the corporation under the consultancy. The corporation did not have any other consultancy arrangement with the plaintiff.”
I have gone over thoroughly the judgment of the learned trial judge. I agree with the Respondent’s counsel that he has painstakingly evaluated the totality of the evidence before him. I have no reason to disturb his findings. I therefore uphold his finding that the evidence on record established the existence of a consultancy agreement between the appellant and the respondent. The submissions of counsel to the appellant on lack of offer, acceptance, consideration et la remain a futile exercise in empty legalism.
The next question to consider is whether this consultancy was in respect of the Mass Housing Scheme in contention. Exhibit A in its paragraph 03 provides thus:
“The corporation shall be free to negotiate your consultancy fees based on the cost of the JOB CONCERNED.”
In attacking the validity of Exhibit A, appellant’s counsel contended that this clause makes the agreement unspecified and unascertained making the subject matter imprecise. In making this argument, counsel loses sight of the nature of the agreement in Exhibit A. Exhibit A is akin to a retainership agreement which legal practitioners and other Professional sign with firms and corporations yearly or for agreed periods of time. Under this arrangement the firm, or organisation would now assign to the said professional whatever work comes up within their area of specification or expertise. In Government Parastatals or corporations such accepted practice takes the form Exhibits A and B have taken. In other words, the interested professionals, suppliers or contractors apply to these organisations which give them offers like in Exhibit A. This group provides a pool from which these organisations service their needs. Many organisations outsource their work that way. The agreement is more fluid as they take on projects as they come up.
Exhibit A therefore is not invalid by failing to be specific. The “job concerned” determines what job is given to them at the time in question. Exhibit C puts paid to any assertion by the appellant that the Mass Housing Development Scheme is neither their project nor that the respondent did not work on the project. I reproduce the letter written by DW1, the appellant’s Director of Works dated 12th December, 2002 and addressed to the respondent:
“Sequel to the latest development on OUR MASS HOUSING SCHEME, I am directed to invite your company to a meeting with the corporation.
Date: Friday 13th December, 2002
Time: 10.00 am
Venue: Chairman’s office
The meeting shall discuss majorly some technical and other administrative issues that can enhance the commencement of the project.”
I think Exhibit H puts a seal to all these contentions. It is a Memo from DW1, appellant’s Director of works to the respondent dated 19/08/2003:
“Sir,
Good day. Kindly come to Housing Corporation on Wednesday 20th August, with your copies of those deigns you submitted to FIAARK. The Corporation could not get these designs from him and we need them urgently for CONTRACT REVIEW COMMITTEE exercise. Bear in mind that we are to meet at M. W & H on Thursday, 21st by 10.00 am to appear before the committee.
Thanks.”
From these Exhibits it can reasonably be implied that the appellant appointed the respondent as its Consultant Engineer in Civil/Structural Engineering and Infrastructural facilities. That the respondent prepared the Engineering drawings in respect of the Mass Housing Development Scheme and was not paid.
On the fees due to the appellant this is covered by clause 03:
“The corporation shall be free to negotiate your consultancy fees based on the cost of the job concerned.”
This means that the respondent was to fix his fees but the appellant if they so desired could negotiate the fees. Exhibit G shows that the agreement between the appellant and the respondent was that consultancy fee on infrastructure will be paid progressively as the contractor was paid. The payment was to be made on the agreed Table I of the Federal Government Approved Professional Scale of Fees for the Industry. This agreed scale of fees for consultants was tendered in evidence and rejected and accordingly so marked. The learned counsel to the appellant made heavy weather of the rejection of the document. I find that this is of no moment in this case. While I agree that there was no specific formula or template that the respondent was to use in calculating his consultancy fee, it is implied from the relevant exhibits as found in the judgment that the respondent had the latitude to fix or calculate the fees subject of course to the freedom of the appellant to negotiate such fees based on the cost of the job concerned. This is why I agree with the learned trial judge that the respondent was entitled to and did rightly calculate his fees. Our point of departure however comes where the learned trial judge found for the respondent in the total sum of N230,044,166.70 as the consultancy fee based on the cost of the job concerned. Exhibit J does give some insight to resolve this dilemma. It is stated in Exhibit J, the respondent’s letter to the appellant’s General Manager the reasons why the consultancy fee was to be paid progressively which was twofold. The relevant one being; “the actual costs of infrastructures could not be ascertained at the onset.”
In addition, the respondent broke his entitlements into three stages:
“STAGE I: 25% of the total fee (for preliminary design)
STAGE II: 50% of the total fee (on submission of final design drawings) and
STATE III: 25% of the total fee (to be paid during supervision).
The plaintiffs aver that the Standard Payment Schedule of fees for the Consultants is in three stages as contained in the Government Approved Scale of fees which is stated hereunder:
The total fee on Infrastructure was N24,271,250, covering the THREE stages
STAGE I (due) 25% of N24,271 = N6,067,812.50
STAGE II (due) 50% of N24,271,250 = N12,135,625.00
STATE III (not due) 25% of N24,271,250 = N6,067,812.50
The total fee due to the plaintiffs on Infrastructure is in respect of stage I and stage II which is: N6,067,812.50 + N12,135,625.00 being N18,203,437.50.
The plaintiffs aver that for Structural Design of the 5-bedroom detached Storeys, the total fee = N4,619,764,
STAGE I (due) 25% of N4,619,764 = N1,154,941.00
STAGE II (due) 50% of N4,619,764 = N2,309,882.00
STATE III (not due) 25% of N4,619,764 = N1,154,941.00
The total fee due on Structural Design of the 5-bedroom detached Storey Buildings was N1,154,941.00+N2,309,882.00 being N3,464,823.00.
the plaintiff avers that the total Reimbursible Expenses due to them was N147,280.00
The plaintiffs aver that the total payment due to them is analysed as hereunder:
Infrastructures N18,203,437.50
Structure Design N3,464,823.00
Reimbursible N147,280.00
Total Payment Due N21,815,540.50.”
This is taken from the respondent’s statement of claim contained at pages 3-7 of Vol I of the record. Indeed paragraph 10 of the said statement is very instructive and I quote:
“The plaintiffs aver that the contract for the building of the houses in the three estates was awarded for N6,773,000.00 (six billion, seven hundred and seventy-three million naira) with 15% allowance for infrastructural facilities.”
The respondent failed to show the basis of his computation on the total contract sum and not 15% thereof which is for infrastructural facilities.
The respondent in computing his claim referred to it as the total due to him. He also showed in his computation that the claim was for stages 1 and 2 representing 75% of his total consulting fee. The remaining 25% representing stage III was to be paid during supervision. This presupposes that supervision was part of the responsibility of the respondent under the contract. As the contract was frustrated the respondent cannot claim entitlement to a job, he has not performed which is stage III.
In my opinion, it is irrelevant that the respondent amended his claim severally. That in no way removes from this burden on him to prove his claim on the balance of evidence.
I should add that it will be wrong for a plaintiff to assume that he will be entitled to a relief as a matter of course because the defendant failed to tender any evidence: AKINYELE V AFRI BANK PLC & ANOR (2005) 17 NWLR, PT 955, 504; DAKINGARI V GREEN (2001) 5 NWLR, PT 707, 718; HARKA AIR SERVICES LTD V KEAZOR (2006) 1 NWLR, PT 960, 160 and OGUNYADE V OSHUNKEYE (2007) 15 NWLR, PT 1057, 218.
I find that the respondent did not prove his claim in the adjudged sum of N230,044,166.70 but rather to N21,815,540.50. I am not unaware that the respondent’s statement of claim from which I computed his entitlement was not the extant process or pleading upon which the claim before the trial Court was determined. The law however is that a Court in order to do substantial justice is entitled to look at its file or record. The said statement of claim forms part of the processes transmitted from the lower Court and therefore was part of the proceedings of that Court. I therefore rightly made use of it to arrive at what I consider the justice of the case in the circumstances.
See EROMOSELE V FRN (2018) LPELR-4385 (SC); PDP & ORS V EZEONWUKA & ANOR (2017) LPELR-42563 (SC) and ABIODUN V AG FEDERATION (2007) 15 NWLR, PT 1057.
By way of curiosity I did wonder silently that if the respondent who was only involved in infrastructural design was paid N230,044,166.70 what of the architect, the builder, the contractor etc? No wonder Mass Housing Schemes for the masses continue to remain white elephant projects.
Among the reliefs granted by the trial Court in contention by the appellant is the interest at the CBN rate as at the date the suit was filed as a post judgment interest in favour of the respondent. In the instant case, the Court below awarded interest “at the prevailing CBN rate and 5% per annum post judgment interest until the judgment sum is liquidated.”
If his lordship wanted to give a pre judgment interest at CBN rate that is not what he ended up doing. A pre judgment interest is from a given time to the date of judgment. What he has done here unwittingly perhaps is a post judgment interest. The learned trial judge purported to have based the post judgment award of 5% interest on the 1987 Rules of Court of Ondo State. It is not clear from the judgment whether the post judgment interest at CBN rate was also provided for in the Rules of Court. Award of post judgment interest is substantially statutory and mostly derived from the Rules of Court. The award is essentially discretionary. However, like every discretion the requirement for it to be exercised judicially and judiciously.
In interpreting the relevant provision of the Anambra State High Court (Civil Procedure) Rules, ORDER 35 (4) which provides for the award at a rate not less than 10% or at the prevailing interest rate (whichever is higher) where the lower Court awarded 35% per annum (or prevailing CBN interest rate) on the judgment, this Court in DANGOTE CEMENT PLC V EKESON SALINS OIL & GAS LTD & ORS (2019) LPELR-47259(CA) held that the award being based on the two options was vague and cannot be allowed to stand. Similarly, in CHURCHGATE (NIG) LTD V UZU (2005) LPELR-11404(CA), where the learned trial judge awarded 21% per annum on a judgment debt until liquidated, this Court also held that his lordship was in error. See also: IFEMESIA V ECOBANK (2018) LPELR-46589(CA).
In the instant case the trial Judge held thus:
“and interest rate at the prevailing CBN rate and 5% per annum post judgment interest until the judgment sum is liquidated.”
Flowing from this authority, I have no difficulty in holding that this award on post interest as granted by his lordship is vague and is not executable. Who is to fix the CBN interest rate as at 15th February, 2007? This interest rate can therefore not stand. The settled position of the law is that for the Court to award interest at the prevailing interest rate, there must be evidence establishing the rate before the Court.
I should conclude this point by stating that appellant’s Counsel is grossly misconceived if he concluded that the learned trial Judge award a prejudgment interest. I see none on the face of the record. I have already dealt with the issue of post judgment interest.
I have dealt with all the issues as raised by the appellant. Appellant raised the issue of inadmissible evidence. A brief is not an academic exercise. It is not enough to raise such an issue at large. The appellant has to show that if those alleged inadmissible evidence are expunged, it will change the direction of the case in favour of the appellant. This is not the case here. There is nothing on record to show that the trial Judge gave the exhibits being complained about any probate value as to affect the substance or content of the judgment. I find therefore that the submission of Counsel on admission of inadmissible evidence is of no consequence. I discountenance same.
Issue (8) as raised by the appellant is all embracing and covers all the issues. I have dealt extensively with that issue. I hold that the learned trial Judge did a thorough job by evaluating very painstakingly the entire evidence on record. The appellant’s Counsel has not shown that the judgment is perverse in any way. Not having proved that, Counsel cannot be heard to be making empty assertions.
On the whole and from all my findings in this judgment I resolve issues 4, 5, 6, 7 and 8 and by implication all the eight issues raised by the appellant jointly and severally against them and in favour of the respondent. Consequently, this appeal is devoid of merit, it fails and it is hereby dismissed. I affirm the decision of the lower Court but vary the relief granted, thus:
“Judgment is hereby entered in favour of the claimant in the sum of N21,815,540.50k.”
The relief granted on post interest rate at prevailing CBN rate and 5% per annum until the judgment sum is liquidated being unspecific and unexecutable is thereby dismissed.
I cannot end this judgment without expressing my concern on the attitude of the appellant’s Counsel. From the records he doubles as the appellant’s company secretary/legal adviser. The record is replete with his attacks on the person of his Lordship Justice C. E. T. Ajama on the grounds of bias or likelihood of it. These attacks are to be found in affidavits, memos and other processes. I felt a high sense of indignation that a lawyer of whatever age at the bar should choose that route to express his discomfort or misgivings about the way a trial Judge conducts proceedings in Court. There are ample judicial avenues to check any perceived excesses of a judge. These include but are not limited to the option of filing a motion requesting his Lordship to recuse himself on the grounds of bias or likelihood of it. A refusal by his Lordship is appealable. Bias or likelihood of bias is almost always evident on the face of the record. I did not see any evidence of bias on the face of this record to justify the vituperation by counsel against his lordship. Indeed, I was intrigued by the conduct of his Lordship on one occasion when the appellant’s Counsel was not in Court in spite of proof of hearing notice on him. The learned trial Judge adjourned the proceedings on the grounds that Counsel had always been in Court and he gave him the benefit of doubt. This is a testimony to an attribute of fairness. That a trial Judge gives a decision unfavourable to you is not a reason to label him biased. On the contrary, I observed that the appellant’s Counsel was at all material times to the transaction that resulted in this case, the appellant’s legal adviser. He was therefore involved directly or indirectly in the matter. He therefore had a lot of passion and emotion which he brought into this case. This is not only unhealthy but could lead Counsel to engage in unprofessional conduct. The smart thing to do would have been to allow a subordinate in the office not so involved in the transactions to handle the matter; or the appellant could have engaged an external solicitor on the advice of counsel. A counsel is not permitted to make such sweeping allegations against a judge who is not in a position to be heard. It is a sad commentary indeed on the level of legal practice in Nigeria.
I think the decision to allow in house counsel to prosecute for or defend their employers in Court should be revisited
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading the draft of the leading judgment in this appeal just delivered by my learned Brother, Patricia Ajuma Mahmoud, JCA.
I agree with the line of reasoning of and the conclusion reached by His Lordship that the appeal is devoid of merit. I equally dismiss the appeal and abide by the consequential orders made, in the said leading judgment.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the privilege of reading the lead judgment delivered by my learned brother, PATRICIA AJUMA MAHMOUD, JCA who exhaustibly considered and determined the issues in controversy between the parties.
I concur with the reasoning and conclusion of my learned brother in the lead judgment.
This Appeal is unmeritorious and fails. It is hereby dismissed and the decision of the Lower Court affirmed with the variation made in the lead judgment.
Appearances:
MR Nasiru Oseni, with him MR E. I. Olaborede For Appellant(s)
Chief F. Omotosho, with him MR. O. Omotosho For Respondent(s)
