OWENA MASS TRANSPORTATION COMPANY LTD V. BIDAT VENTURE LIMITED
(2010)LCN/4094(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 7th day of December, 2010
CA/B/283/2005
RATIO
ISSUES FOR DETERMINATION: EFFECT OF THE FAILURE AN APPELLANT TO LINK THE ISSUES HE FORMULATED TO A GROUND OF APPEAL
Appellant did not link the issues he formulated to a ground of appeal as required. See Nwonkwo and Anr. v. Educs (U.A) 2007 4 SCM 139 wherein the Supreme Court held that failure to link issue in appeal to a ground of appeal will render the issue incompetent. PER NWALI SYLVESTER NGWUTA, J.C.A.
ISSUES FOR DETERMINATION: EFFECT OF AN ISSUE FOR DETERMINATION NOT DERIVABLE FROM A GROUND OF APPEAL
Respondent’s issue one relates to the validity of the contract between the parties for the repair of the vehicle MB1414 as found by the Court below. With respect to the learned counsel for the respondent the issue is not derivable from either ground 1 or 2 or a combination of both. Ground 1 questions the finding that the respondent executed the contract and ground 2 is on proof of averment in appellant’s pleading in the Court below. Respondents issue one and the appellant’s issue 3 do not relate to any ground of appeal. Appellant’s issue 3 and respondent’s issue 1 are not only incompetent they are completely valueless in the determination of the appeal. See Omo v. JSC Delta State (2000) 7 SC (pt.11) page 1. PER NWALI SYLVESTER NGWUTA, J.C.A.
CIRCUMSTANCES WHERE THE FINDINGS OF THE LOWER COURT WILL NOT BE REVERSED
The findings in my humble view are borne out of the evidence before the trial court. The findings of lower court are presumed correct and I see no grounds to displace and reverse the findings. See Sokwor v. Kporigbo (2008) 12 SCM (pt. 1) 188. PER NWALI SYLVESTER NGWUTA, J.C.A.
WHAT IS A COUNTER-CLAIM
A counter-claim is the assertion of a separate and independent cause of action. See Ilesha Local Planning Authority v. Otajide (1994) 5 NWLR (pt.342) 17 at 107. PER NWALI SYLVESTER NGWUTA, J.C.A.
BURDEN IMPOSED ON A PARTY IN ORDER TO SUCCEED IN HIS CLAIM IN CIVIL CASES
In civil cases, the law is that a party in order to succeed in his claim must give oral evidence in support of his pleadings. The evidence must be credible and not dented by cross-examination. In other words, it should remain unchallenged. If a party is inconsistent in his evidence and is caught approbating and reprobating, he will be found to have failed in discharging the burden on him to prove his case on a balance of probabilities. Arase v. Arase (1981) 5SC 33: Elias v. Omo-Bare (1982) 5 SC 25. PER CHINWE E. IYIZOBA, J.C.A.
JUSTICES
NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
CHINWE E. IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A.A ADUMEIN Justice of The Court of Appeal of Nigeria
Between
OWENA MASS TRANSPORTATION COMPANY LTD Appellant(s)
AND
BIDAT VENTURE LIMITED Respondent(s)
NWALI SYLVESTER NGWUTA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Ondo state High court of Justice Akure Judicial Division in suit No. AK/75/2003. The judgment was delivered on 18/5/2005 by Sidio J. The plaintiff and defendant in the Court below are the respondent and appellant herein.
The respondent had sued the appellant for the following reliefs:
1. “The sum of N425, 000.00 (Four hundred and twenty five thousand naira) only being the outstanding balance owed the plaintiff by the defendant arising from the contract for the complete refurbishing of a MB1414 Bus for the sum of N625, 000.00 (Six Hundred and Twenty Five Thousand Naira) only.
2. 10% interest monthly on the said sum of N425, 000.00 (Four Hundred and Twenty Five Thousand Naira) only from the date judgment is given until the debt is finally liquidated.
3. N5 Million Naira general damages.”
See page 6 of the records.
Upon service of the statement of claim on the respondent it filed a statement of defence denying the claim and counter claiming as follows:
(a) “An order directing the plaintiff to refund the sum of N50, 000.00 (Fifty Thousand Naira) in excess of N200, 000.00 (Two Hundred Thousand Naira) paid to the plaintiff.
(b) 10% interest monthly on the said sum of N50, 000.00 (Fifty Thousand Naira) from the date judgment is given until the debt is finally liquidated.
(c) N500, 000.00 (Five Hundred Thousand Naira) general damages.
The respondent filed a reply to the statement of defence and defence to the counter claim.
At the trial each side called one witness and rested its case.
Learned counsel to the parties addressed the Court and in a reserved judgment dated 18/5/2005 the trial Court held:
“The plaintiff’s claims therefore partly succeeds while the defendants counter claim fails.”
The court entered judgment for the respondent against the appellant as follows:
“The sum of N425, 000.00 being the outstanding balance owed the plaintiff by the defendant arising from contract for the refurbishing of a MB1414 Bus for the sum of N625, 000.00 only.
2. 10% interest on the said sum of N425, 000.00 from today until the whole sum is finally liquidated.
3. Leg no 3 of the plaintiff’s claim for N5 Million general damages is refused and is accordingly dismissed.
The defendant’s counter claim against the plaintiff also lacks merit and same is accordingly dismissed.
Cost of N2, 500.00 is hereby awarded in favour of the plaintiff and against the defendant.”
See pages 36 – 37 of the records.
Aggrieved by the judgment the appellant appealed to the court on three grounds hereunder reproduced shorn of their particulars.
i. “The trial Court erred in law when it held that it believed the respondent performed the contract.
ii. The trial Court erred in law when it states that the defence did not prove the averment in its pleading.
iii. The trial Court erred in law when it held that the counter claim was not proved by the defendant.”
See pages 40 – 41 of the records.
In compliance with the rules the parties through their counsel filed and exchanged briefs of argument. Appellant’s brief was deemed filed on 7/6/07. The respondent’s brief was filed on 27/6/07.
Appellant was granted leave to argue an issue of facts mixed law and facts contained in the notice of appeal.
In his brief of argument which he adopted and relied on at the hearing of the appeal learned counsel for the appellant formulated the following issues for determination:
“1.06 Whether the plaintiff discharged the onus of proof of the execution of the contract by virtue of
Exhibit P3.
Whether where proof of execution of contract is the issue whether the burden lies on the defendant who put the plaintiff to prove whether the defendants counter-claim succeeds when the plaintiff failed to prove the execution of the contract.”
Appellant did not link the issues he formulated to a ground of appeal as required.
See Nwonkwo and Anr. v. Educs (U.A) 2007 4 SCM 139 wherein the Supreme Court held that failure to link issue in appeal to a ground of appeal will render the issue incompetent. However I will save the appeal by treating each of the three issues as arising from the corresponding ground of appeal.
In his own brief of argument learned counsel for the respondent identified the following two issues for the Court to resolve:
1. Was the learned trial Judge right to hold that there existed a valid contract between the parties for the refurbishment of the defendant’s MB1414 Bus?
2. Was the learned trial judge right to hold that the appellant failed to discharge the onus placed on him to satisfactorily prove its counter-claim?
He distilled issue one from grounds 1 and 2 and issue 2 from ground 3.
In his argument in respect of issues 1 and 2 together learned counsel for the appellant relied on exhibit P3 to say that the respondent did not comply with the terms and conditions of the contract. He said that Exhibit P3 provided that the Respondent is to refurbish the M B1414 bus not to supply money to the appellant’s workshop. Learned counsel submitted that the execution of the contract was subject to inspection and certification of the appellant and that the Exhibit P3 is the only material available to the trial court to decide the issues between the parties.
It was submitted by the appellant that the mere payment of the sum of N150, 000.00, 28.5% of the contract sum to the appellant workshop does not amount to the execution of the contract and that the Respondent was overpaid by N50, 000.00 in refund of the said N150, 000.00. It was further argued that the respondent offered no proof that the vehicle was indeed refurbished. Learned counsel speculated that the respondent was a conduit pipe employed by the staff of the appellant to fake the execution of the contract. He referred to Section 136 of the Evidence Act Cap 112 Laws of the Federation and submitted that the burden of proof that the contract was executed fell on the respondent. Counsel urged the Court to hold that the respondent neither proved execution of the contract nor established its right to damages.
On issue no. 3 learned counsel argued that the respondent was overpaid by N50, 000.00 and that money paid under illegal contract ought to be refunded and that is the position of the law. He said the N50, 000.00 by which the respondent was overpaid by the appellant is the subject of the appellants counter-claim. He urged the Court to hold that the counter-claim succeeds where the plaintiff fails to prove his case.
Counsel urged the Court to allow the appeal, set aside the judgment of the trial Court and dismiss the respondent’s case. He urged the Court to grant the appellant’s counter-claim.
In his brief of argument learned counsel for the respondents made copious submission in respect of the issue which he said he distilled from appellant’s ground 1 and 2. He concluded by his submission that the appellant failed to show that the trial judge did not follow the law or procedure in his conclusion that the appellant did not prove its case and the said conclusion was not shown to be erroneous or a travesty of justice.
In issue 2 learned counsel argued that a counter-claim is an independent action separate from the main suit, and that the former can succeed where the latter fails. He relied on Total Nigeria Plc v. Markah (2002) 9 NWLR (pt. 223) pages 492 of 512 paragraph G-H.
He argued that the appellant did not prove his counter- claim and urged the Court to dismiss same and affirm the judgment of the Court below.
It is necessary to do same tinkering, as it were, with the briefs filed and adopted and relied on by the learned counsel for the parties. Appellant’s issue 2 is subsumed in issue 1. Issue 3 on whether the counter-claim can succeed on the failure of the plaintiff’s case does not really arise from the judgment of the lower court. It is framed in abstract but each case depends on its facts and circumstances.
Respondent’s issue one relates to the validity of the contract between the parties for the repair of the vehicle MB1414 as found by the Court below. With respect to the learned counsel for the respondent the issue is not derivable from either ground 1 or 2 or a combination of both. Ground 1 questions the finding that the respondent executed the contract and ground 2 is on proof of averment in appellant’s pleading in the Court below. Respondents issue one and the appellant’s issue 3 do not relate to any ground of appeal. Appellant’s issue 3 and respondent’s issue 1 are not only incompetent they are completely valueless in the determination of the appeal.
See Omo v. JSC Delta State (2000) 7 SC (pt.11) page 1.
I will determine the appeal based on appellant’s issue 1 and respondent’s issue 2.
Issue one in the appellant’s brief is on whether the respondent proved the execution of the contract as per Exhibit P3
In paragraph 11 of the statement of claim the respondent said that:
“The plaintiff avers that the job’s completion and delivery was delayed d little bit, but it was still done within a reasonable time and was afterwards passed and or cleared for payment by the relevant department in the Defendant’s company.”
See page 4 of the records.
The respondent denied the above averment in paragraphs 2 and 3 of its statement of defence. In paragraph 3(a) the appellant as defendant below pleaded:
“The defendant said that the plaintiff did not execute the contract but merely supplied the sum of N150, 000.00 (One hundred and fifty thousand naira) to the Mechanics at the defendant’s workshop in terms of friendly loan assistant.”
Thus the parties joined issue on the execution of the contract.
In proof of the execution of the contract pleaded by the respondent as plaintiff and denied it by the appellant as defendant, the PW1 swore that:
“After the award, plaintiff attempted to move the vehicle from the defendant’s garage to the plaintiff’s garage for the refurbishment of the same. At this point the then Chairman of the defendant insisted that the vehicle should be repaired in the defendant’s workshop. I then made available the sum of N150, 000.00 to the workshop manager of the defendant’s garage for the job to be done. The plaintiff borrowed the said N150, 000.00 from a Finance company in Lagos. The defendant’s workshop was operating independent of the defendant. The vehicle was at the end refurbished by the defendant’s garage. After the completion of the refurbishment a letter was written to the Chairman of the defendant for payment. The defendant felt reluctant to pay because they claimed that they do not have money until they receive money from Abuja. After several demands, the plaintiff paid the sum of N200, 000.00 vide a cheque dated 6th July, 2000.”
See page 14 of the records.
The PW1 testified further that the cheque, drawn on Chattered Bank was dishonoured when it was presented for payment and that the cheque was returned to the appellant who paid the N200, 000.00 in cash, leaving a balance of N425, 000.00 unpaid to the Respondent.
The sketchy cross-examination did not shake the testimony of the PW1, rather it provided an opportunity for the respondent to strengthen its case thus:
“It is untrue that the plaintiff did not refurbish the vehicle. What I did in supplying the funds is not a negation of any contract. I supervised the work on the refurbishment of the vehicle and I know the state of the vehicle after completion.”
See page 15 of the records.
On the other hand the DW1 testified that the respondent gave the sum of N150, 000.00 to each of the personnel in the appellant’s workshop to assist in the repair of the bus. He said inter alia:
“By giving to the personnel in the mechanical workshop, we believe the contract not performed by the plaintiff we also believe that the attitude of the plaintiff in the execution of the contract amounted to non-performance.”
See page 17 of the records.
Under cross-examination the DW1 said
“The sum of N200, 000.00 paid to the plaintiff was paid after the execution of the contract.”
The respondent was alleged to have paid N150, 000.00 the sum of to each personnel in the appellant’s workshop but the DW1 did not state the number of people paid N150, 000.00 each. If there is any shadow of doubt on the execution of the contract the DW1 cleared the doubt when he swore that the sum of N200, 000.00 was paid to the respondent by the appellant upon the completion of the contract.
Appellant is estopped from denying the execution of the contract upon the completion of which he paid the sum of N200, 000.00 to the respondent.
After a review of the evidence led by the parties, the learned trial judge at page 35 of the record made the following findings:
“‘upon the whole i am satisfied that the plaintiff in this case has established by cogent and reliable evidence that there is a valid contract between it and the defendant for the refurbishment of the defendant’s MB1414 Bus, that the contract has been executed, that the defendant has failed to pay the outstanding balance of N425, 000.00 out of the contract sum…
the plaintiff is therefore entitled to the first leg of its claim as contained in its statement of claim since the contract between it and the defendant has been discharged by performance and I so holds, see Tsokw Oil Marketing co Nig. Ltd v. Bank of the North (2002) 11 NWLR (pt. 777) page 163 at 171 ratio 9.”
Above are findings of fact made by the trial judge who had the opportunity to see, hear and watch the witnesses on stand before him, an opportunity denied the appellate court. The findings in my humble view are borne out of the evidence before the trial court. The findings of lower court are presumed correct and I see no grounds to displace and reverse the findings.
See Sokwor v. Kporigbo (2008) 12 SCM (pt. 1) 188
Moreover the findings are based entirely on the credibility of witnesses. I resolve issue one in favour of the respondent against the appellant.
In respect of issue 2 in the respondent’s brief there is evidence accepted by the trial court that the contract sum is N625, 000.00 out of which sum the appellant paid the sum of N200, 000.00 to the defendant leaving unpaid balance of N425, 000.00. The only other sum paid in the entire transaction is the N150, 000.00 paid by the respondent to the Manager of the appellant’s workshop to help in the execution of the contract. The claim by DW1 that
“The payment of N150, 000.00 paid to the plaintiff was made in error by the accounts department of the defendant.”
Is not borne out of the records. There is no evidence of such payment to the respondent nor is there any evidence in proof of the alleged N50, 000.00 overpayment made to the respondent upon which the counter-claim was founded. A counter-claim is the assertion of a separate and independent cause of action. See Ilesha Local Planning Authority v. Otajide (1994) 5 NWLR (pt.342) 17 at 107.A counter-claim therefore need not sink or swim with the plaintiff’s claim.
However on the facts before the trial Court I endorse the dismissal of the appellant’s counter-claim.
Consequently I dismiss the appeal and affirm the judgment of the Court below.Appellant is to pay costs assessed and fixed at N25, 000.00 to the respondent. Appeal dismissed.
CHINWE E. IYIZOBA, J.C.A.: I read in advance the judgment just delivered by my learned brother Nwali Sylvester Ngwuta JCA. I agree with the reasoning contained therein and the conclusion arrived thereat.
The respondent herein who was the plaintiff in the court below registered as a contractor with the appellant company and was awarded a contract by the appellant to refurbish its Mercedes Benz 1414 bus at a contract sum of N625, 000. All attempts by the respondent to remove the vehicle from the appellant’s premises for refurbishment was frustrated by the then managing director of the appellant who insisted that the respondent should engage the services of the appellant’s in-house workshop to do the job. The respondent then reluctantly agreed to the proposal and made available the sum of N150, 000 to the appellant’s workshop for the execution of the job. After some delay, the job was eventually done but in spite of repeated demand, the appellant failed to pay the contract sum. With further demands and threat of legal action, the appellant eventually paid the sum of N200, 000 and then, adamantly refused to pay the balance of N425, 000, hence the institution of this suit. The appellant at the lower court denied owing the respondent any money. They claimed the contract awarded the respondent was never executed and that the N150, 000 given to the mechanics at the appellant’s workshop was just a friendly loan which had been repaid the respondent out of the N200, 000 given to him. They counterclaimed for a refund of the over payment of N50, 000.
My learned brother in his judgment dealt exhaustively with the real issues in the appeal: firstly, whether the respondent proved the execution of the contract as per exhibit P3, the local purchase order given to him for the contract job. Secondly, whether the trial judge was right in his conclusion that the appellant failed to prove its counterclaim.
In civil cases, the law is that a party in order to succeed in his claim must give oral evidence in support of his pleadings. The evidence must be credible and not dented by cross-examination. In other words, it should remain unchallenged. If a party is inconsistent in his evidence and is caught approbating and reprobating, he will be found to have failed in discharging the burden on him to prove his case on a balance of probabilities. Arase v. Arase (1981) 5SC 33: Elias v. Omo-Bare (1982) 5 SC 25. The respondent in this case gave credible and unchallenged evidence that he contract executed the through the appellant’s workshop by making available to the mechanics the sum of N150, 000 with which they did the job; N200, 000.00 was thereafter paid to him by the appellant. The appellant on the other hand was found approbating and reprobating when it claimed in its pleading that the respondent did not execute the contract but merely gave the sum of N150, 000 to the mechanic in the workshop as a friendly loan and that he was overpaid by N50,000 when the appellant paid him N200, 000. But in his oral evidence DW1, the sole witness called by the appellant admitted under cross-examination that the sum of N200, 000.00 paid to the respondent was paid after the execution of the contract. It is consequently not surprising that the learned trial judge felt satisfied that the respondent established that there was a valid contract and the contract had been executed. It is also not surprising that the Judge found the evidence of the appellant on the counterclaim of N50, 000 at variance with its pleading. This court in the circumstances has no basis to interfere with the judgment of the learned trial court. I hold that this appeal has no merit and same is accordingly dismissed. I abide by the consequential order as to cost made by my learned brother, Ngwuta JCA in his leading judgment.
MOORE A.A. ADUMEIN, J.C.A : I agree.
Appearances
Pius Olu Odu (S.A Ayesa with him)For Appellant
AND
A.M Kayode (with him Victor Ekin, and D.A Abdulkadeem)For Respondent
