PAN OCEAN OIL CORPORATION (NIG) LTD v. HUMIGRATI CHEMICAL CO. LTD (2020)

PAN OCEAN OIL CORPORATION (NIG) LTD v. HUMIGRATI CHEMICAL CO. LTD

(2020)LCN/15258(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Friday, May 22, 2020

CA/AS/42/2018

Before Our Lordships:

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

PAN OCEAN OIL CORPORATION NIGERIAN LIMITED APPELANT(S)

And

HUMIGRATI CHEMICAL CO LTD RESPONDENT(S)

RATIO

WHETHER OR NOT FACT ADMITTED NEED NOT BE PROVED

The Appellant did not lead any evidence in proof of mode and terms of this payment, no document was tendered of payment but having been an admission of the Respondent of the payment, in law it is taken that money was paid and received against this claim; “it is the law that what is admitted need not be proved.” See the case of; VEEPEE INDUSTRIES LIMITED v COCOA INDUSTRIES LIMITED (2008) LPELR – 3461 (SC); NWUKE v UNION BANK OF NIGERIA PLC (2009) LPELR – 8750 (CA); NIIA v MRS T. O. AYANFALU (2006) LPELR – 5960 (CA);AMAH v AMAH (2016) LPELR – 41087 (CA). PER OBASEKI-ADEJUMO, J.C.A.

THE DOCTRINE OF PRIVITY OF CONTRACT

The doctrine of privity of contract is a long aged one that protects the sanctity of contract between parties. The Supreme Court in UBA v ALHAJI BABANGIDA JARGABA (2007) LPELR – 3399 (SC), per MUHAMMAD, JSC held thus;
“The doctrine of privity of contract is all about the sanctity of contract between the parties to it. It does not extend to others outside. The doctrine will not apply to non-party to the contract who may have, unwittingly, been dragged into the contract with a view to becoming a shield or scape goat against the non-performance by one of the parties.”
(P. 19, PARAS D – F)
See also; IBRAHIM v YAHAYA (2016) LPELR – 41810 (CA); KWAGA & ANOR v AMUGA & ANOR (2016) LPELR – 40270 (CA); AZUBIKE v OTUJEME (2015) LPELR – 25619 (CA); OGBUJI & ANOR v AKPAN (2015) LPELR – 25596 (CA). PER OBASEKI-ADEJUMO, J.C.A.

WHETHER OR NOT HE WHO ASSERTS MUST PROVE

Be that as it may, I do not find any material evidence to agree that some or parts of the samples had issues that were not rectified. In CHEMICAL AND ALLIED PRODUCTS PLC v VITAL INVESTMENTS (2006) LPELR -5434 (CA) the apex Court held on whether he who asserts must prove; effect of failure thereof;
“By the Appellant alleging a meeting having been held by parties for instalmental payment, the onus had shifted onto it to prove the assertion. The law is trite that he who asserts has the burden of proof. The Appellant ought to have called evidence to that effect or produce a document evidencing same. It is not enough as submitted by the Appellant on his reply brief that the instalmental payment was pleaded on their further amended statement of defence. The law is trite that pleadings not substantiated by evidence go to no issue.”
per OGUNBIYI, J.S.C (Pp. 27-28, paras. E-A).
See; AFOLABI & ORS v WESTERN STEEL WORKS LTD (2002) LPLER – 12158. PER OBASEKI-ADEJUMO, J.C.A.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This appeal flows from the decision of the High Court of Justice, Delta State Coram; AKPERI G.E., J. delivered on 19th October, 2017 in favour of the Respondent in respect of the Claim, where the lower Court granted part of the monetary reliefs and struck out the name of the 1st Defendant.

The Appellant dissatisfied with the part of the judgment awarding the sum of N47,632,620.00 (Forty-seven Million Six Hundred and Thirty-two Thousand Six Hundred and Twenty Naira) filed a notice of appeal on 22nd November, 2017 and parties exchanged briefs under the rules.

The Appellant brief was filed on 8th March, 2018 and was settled by Ayo Asala SAN of Ayo Asala & Associates, wherein he formulated a single issue for appeal wit;
Whether having regard to the totality of the evidence on record both oral and documentary, the lower Court was right when it awarded the sum of N47,632,620.00 (Forty-seven million, six hundred and thirty-two thousand, six hundred and twenty naira) in favour of the Respondent against the Appellant.

The Respondent on the other hand filed a brief on 27th April, 2018 which was settled by S.O. Oluku Esq of S.O Oluku & Associates and adopted the Appellant’s issue for determination.

APPELLANT ARGUMENT
The learned senior counsel submitted that the learned trial judge relied on several invoices which were dumped on the Court in reaching her judgment and that the Respondent has not made out a case against the Defendant, he relied on AKANDE v ADISA & ANOR (2012 ) LPELR- 7807 SC; UZOKWE v DENSY INDUSTRIES NIG LTD & ANOR (2002) LPELR- 3456 (SC) (2002)2 NWLR (PT 752) 528. He referred to the claims sought in the lower Court and the award by the Court on pages 966-968 of the record, that there is nothing confirming what Exhibits C1-C715 are. He submitted that the suit was pending before another judge and these Exhibits had been admitted before the previous judge until it was transferred to the present lower Court, and the present trial Court started de novo and instead of admitting the Exhibits afresh directed thus; “Order: the over 7 hundred documents are admitted as marked earlier as Exhibits(sic) C1-C715 AT PAGE 954 of the record.”

Appellant’s counsel argued that the learned trial judge never set her eyes on the documents neither were they tendered or its contents demonstrated before it, prior to their admission and that this fact was noted in the judgment at page 966, but the Court erroneously relied on the same invoices to grant monetary claims, he cited TALLEN & ORS v JANG & ORS (2011) LPELR – 9231 (CA).

Appellant’s counsel further posits that there was no attempt by the Respondent to tie the material gate passes, chain of custody record to the invoices submitted by them to assist the Court in determining whether those invoices were based on service rendered and accepted by the Appellant.

Appellant submitted that the pw1 under cross examination admitted that the material gate pass merely evidence that the crude oil samples were given to the Respondent by the Appellant and do not confirm that the crude oil were properly analysed.

The Appellant also denied through Dw1 that the Appellant/Defendant admitted they rendered services to it but instead they complained about the quality of supplies but the Court held that the Defendant admitted services. He referred to paragraphs 7 and 8 of the Statement of defence, witness statement on oath, and Dw1’s evidence, he further contended that the evidence of Dw1 was not challenged. In addition, he submitted that the reply filed by the Respondent in the lower Court was never adopted during trial and contended that the implication s that the evidence of Dw1 stands unchallenged and the award set aside.

Learned senior counsel stated that on the record is the fact which was admitted that the Respondent was paid the sum of N10,000,000 (Ten Million Naira) in respect of the invoices submitted by the Respondent after reconciliation, he referred to the statement of defence and evidence of Dw1 and cross examination of Cw1 at page 962 and the conclusion of the Court that there was no proof of payment and submitted that the Court erred and it should be set aside.

Appellant contended that the finding that there was no response to the solicitor’s letter of demand by them is not correct, he referred to series of correspondence between parties with a view to reconciling the claims in various invoices, he referred to paragraphs 11 and 12 of the Defendant’s defence that reconciliation of invoices were still in progress when the Respondent filled this action in Court. And therefore, cannot amount to silence on the Appellant’s part.

On the invoices bearing the name of NPDC, the Appellant denied liability, that it was in respect of services rendered to another company, NPDC by the Respondent and denied instructing such services and that he never agree to pay for such services, he referred to paragraphs 4 and 9 of the defence and cross examination of Cw1, who admitted that the Appellant never agreed with the Respondent to pay for any work done for NPDC at page 955 of the record.

He submitted that the Court despite identifying invoices of N 11,539,08.00 still went ahead to award same included in the total award of N47,632,620 in favour of the Respondent.

On the whole, he submitted that the lower Court did not properly evaluate the evidence before coming to a conclusion and that the Respondent failed to discharge the burden of proof on the Appellant, and that the lower Court wrongly shifted the burden of proving the email dated 16th August, 2012, he cited JAMES A. IKUMA v CIVIL SERVICE COMMISSION, BENUE STATE &ORS (2012) LPELR -8621 (CA).

RESPONDENT’S ARGUMENTS
The Respondent submits on the sole issue, which he divided into four parts;
a) whether the Respondent was able to prove before lower Court that she duly carried out the contract of water content analyses for the Appellant and submitted that both parties agreed that the contract of water content analysis be carried out without a formal contract between them and invoices as evidence of job done. This he submitted was admitted in the Amended defence and cross examination of dw1 in paragraphs 5, 6, 7 and 8 thereof it was not contrary to Appellant’s submission in their brief. He relied on OMISORE v AREGBESOLA (2015) ALL FWLR (PT. 813) 1673.
Respondent’s counsel submitted that the Exhibits were front loaded and a list served on the Appellant, and both parties sorted out the list and they were tendered at the previous Court before it was transferred and heard de novo. He submitted that the Appellant consented to an irregular procedure and cannot complain on appeal, he cited ADELUSI v GOVT LAGOS STATE (2016) ALLFWLR PT 826 467; OKO v STATE (2017) ALL FWLR 905 1245 AT 1262 PARA H-A.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Respondent’s counsel disagreed that the documents were dumped but stated that they were demonstrated and referred to in the Appellant’s address to which issues were coined.
Respondent posit that the Learned trial judge was right when he evaluated the parties based on their oral and documentary evidence, he citedBAYO v NJIDDA (2004) 8 NWLR (PT. 876) 544 AT 622, PARAGRAPHS D- E; BUHARI v INEC (2009) ALL FWLR (PT. 459) 519 AT 604, PARAGRAPHS A – B; AJIBOYE v DURO (2010) ALL FWLR (PT. 507) 136 AT 175, PARAGRAPH C – D.
b) Whether there was credible evidence from the Record that the Appellant paid the Respondent the sum of N10 Million as full and final payment for the job done for the Appellant, Counsel submits that the contention of the Appellant at the lower Court was not whether the payment of N 10 Million was made but if it was made as the full and final payment. Respondent referred to the judgment of the lower Court at page 968 of the record.
Respondent contends that the Appellant did not place before the trial Court sufficient and credible evidence of its assertion.
c) Whether the lower Court was wrong in holding that there was no response to the Respondents solicitor’s letter Exhibit -703 by the Appellant. Respondent posits that the Appellant never rebutted the presumption as against its contention that there is a presumption of liability by reason of the Appellant’s failure to reply to the letter of demand of Respondent solicitor dated 13/1/2014.
Respondent submits that the emails between the parties were not a reply to the Respondent’s solicitor’s demand letter (Exhibit C703), the emails bears dates from 2012 – 2013 and the letter is dated 2014.
Respondent further submitted that the Appellant contention that the response to the letter could also have been verbal was not substantiated and was not proven by the Appellant at the trial Court, the evidence of Dw1 does not avail her as it referred to a 2012 email which was also not tendered by the Appellant in Court.
YAHAYA v SARAKI (2012) ALL FWLR (PT. 656) 458 AT 507, PARAGRAPHS D – E; AJIDE v KELANI (1985) 11 S. C 124, AT PARAGRAPHS 10 – 20 were relied on in submitting that oral evidence cannot override written document and the inconsistency of the Appellant in stating his case.
d) Whether the Appellant is not liable to pay for invoices submitted to the Appellant in the name of Nigeria Petroleum Development Company (N. P. D. C). Respondent submits that the Appellant’s submission that the Respondent’s witness admitted that “the 2nd defendant never agreed with me to pay for any work done for the NPDC” was an error by the learned Honourable Judge in recording the proceedings.

That the total invoices sent to the 2nd Defendant for the job done for NPDC was at the request of the Defendants. The Respondent contends that the question of who gave the most credible evidence in light of the varied and conflicting positions of the parties was put to rest by the learned trial judge in the course of the judgment at pages 966 – 967 of the record.

The Respondent posits that the signature on the witness dispositions at page 797 and page 852 of the records, are signed by the 1st Defendant and when compared with the signatures on Exhibits C78 – C90, Exhibits C106 – C136, Exhibits C53 – C77 and Exhibits C91 – C105, it will show that they were signed by one and the same person, the 1st Defendant.
HARKA (NIG) LTD v KEAZOR (2011) ALL FWLR (PT. 591) 1402 AT 1428, PARAGRAPHS D – F; IWUOHA v MOBIL PRODUCING (NIG) UNLTD (2013) ALL FWLR (PT. 664) 144 AT 155, PARAGRAPHS C; OBINECHE v AKUSOBI (2010) ALL FWLR (PT. 533) 1839 AT 1865 – 1866, PARAGRAPHS H – A were relied on in submitting on the plenary powers of this honourable Court to do justice where it believes the trial Court failed to do so.

On the whole, the Respondent submits that in light of the colossal invoices tendered by it, there was no document where the Appellant protested that she has no business with the jobs done for NPDC.

RESOLUTION
In resolving the sole issue herein, this Court shall be guided by the sole issue agreed upon by parties.

The facts of this case are quite unequivocal and can be summed up from the amended statement of claim, amended defence and reply filed in this case.

There was an oral contract between the parties on or about May, 2011 where the Appellant engaged the services of the Respondent to carry out water analysis, as against its usual practice of an L. P. O. The parties are not strangers to each other having had a long-standing relationship, as the Respondent has carried out prior work for the Appellant. But this time, the Appellant failed to pay the bills for the job done for over one year. Payments were to be gauge on the submission of invoice by the Respondent.

These above facts were admitted by both parties and are believed to be the truth state of events.

The friction in this case however stems from two vital/focal facts, that is;
a) Whether the payment of N10,000,000.00 (Ten Million Naira) by the Appellant is the full and final payment of the services rendered by the Respondent?
b) Whether the Appellant is liable for the service rendered to NPDC?

To my mind, these are the two main areas of contention, others have been settled in the judgment, the Appellant has vehemently contended that it paid the sum of N10,000,000.00 (Ten Million Naira) as its full and final payment after assessing/reconciling the invoices of the Respondent, and this payment was accepted by the Respondent.

It is important to note that this payment was done while the matter was pending at the lower Court and parties had filed pleadings at the trial Court, as can be verily deduced from evidence of the Respondent and the 2nd further Amended Statement of Defence (28th March, 2017) at page 923 – 924, particularly at paragraphs 13 and 14.

From the facts before me, it is safe to say that the payment of the sum of N10,000,000.00 (Ten Million Naira) by the Appellant was admitted to by the Respondent in CW1 testimony at page 955, lines 16 – 20;
“It is not correct to say that the 2nd Defendant (sic) non payment to me were because of the fact that the analysis carried out did not meet their specification because they made part payment withier(sic) cheque for N10,000,000 less vat. Its value comes to a little over N8 Million Naira. The Defendant did not say to me that they were going to carry out investigation and determine what is payable to me.”

Irrespective of this fact, which was admitted by the Respondent, it still in contention, whether it was in full and final payment of the job done. The Appellant did not lead any evidence in proof of mode and terms of this payment, no document was tendered of payment but having been an admission of the Respondent of the payment, in law it is taken that money was paid and received against this claim; “it is the law that what is admitted need not be proved.” See the case of; VEEPEE INDUSTRIES LIMITED v COCOA INDUSTRIES LIMITED (2008) LPELR – 3461 (SC); NWUKE v UNION BANK OF NIGERIA PLC (2009) LPELR – 8750 (CA); NIIA v MRS T. O. AYANFALU (2006) LPELR – 5960 (CA);AMAH v AMAH (2016) LPELR – 41087 (CA).

However, the Respondent’s admission is limited to receiving the N10,000,000.00 (Ten Million Naira) but not as the final and full payment as postulated by the Appellant.

From the above reproduced testimony of CW1, it clearly shows that the Respondent considered the payment as part payment of the monies owed to her. CW1 further testified that;
“The defendant did not say to me that they were going to carry out investigation and determine what is payable to me. They did not put any such thing in writing. It is not true that it was after the 2nd defendant determined what is payable to me that they came up with the N10,000,000.00 (Ten Million Naira).”

The Appellant also did not make any submission or tender any evidence as to how it reconciled its debt to the sum of N10, 000, 000.00 (Ten Million Naira) as full and final payment.

To this end, I am of the utmost opinion that the N10,000,000.00 (Ten Million Naira) was paid as part payment of the debt owed the Respondent and not the final and full debt. More so, as no terms of settlement was filed, neither was same brought to the attention of the Court by either of the parties during proceedings. It is curious that if the sum paid was taken to be full settlement, the Appellant would have objected during proceedings on the continuation of the claims and conversely the Respondent would have filed a notice of discontinuance.

The Respondent, contends that on the liability of the Appellant to pay the sum of N11,539,080.00 (Eleven Million, Five Hundred and Thirty-nine Thousand, Eighty Naira), for work done for NPDC was at the behest of the Appellant. See pages 811 and 832, paragraph 5 of the records.

At the risk of repeating myself, the facts before this Court shows that it was an oral contract and while it is advisable that contract should be written as it is easy to prove, oral contracts are still binding on the parties.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The parties to the contract are the Appellant and Respondent and there was no mention of any other party to this contract, in line with their agreement, the mode of payment or reimbursement was settled.

The Respondent has very well submitted before this Court that the samples it got were given by the 1st Defendant on behalf of the Appellant, and consistently gave or passed on crude oil samples belonging to the NPDC to the Respondent for analysis, and that the 1st Defendant’s signature is on the chain of custody record bearing the name of NPDC (Exhibits C78 – 790 and Exhibits C106 – C136). The questions that boggles me is; Why would the Appellant raise a query at this stage when the Respondent did not source the samples from a different source, it was given by the staff of the Appellant, who is said to have appended its signature thereon and is still in the service of the Appellant as at the time of the trial, it raises a worrisome trend which albeit is ill advised in commercial transactions.

At page 815 of the record is a schedule which clearly itemize the NPDC claims as duly stamped and signed by the Appellant’s staff as collected, and invoice raised with date of submission. The Appellant has not contended that there was another arrangement with NPDC and with the Respondent, neither has it queried, denied or disciplined its receiving officer for any act contrary to its position.
This Court finds this aspect a bitter pill to chew and refuse to be swayed wrongly.

The Respondent’s solicitors letter catalogues the stand of the Respondent and there was no reply to this letter of 13/1/2014 (tendered) that the samples of the Appellant and that of NPDC were sent directly by the Appellant company to the Respondent. Mere denials without more is no denial.

From the Exhibits in Vol 1, the samples of NPDC & SEPLANT were received by Dienizekponu on about 14/8/11, clearly marked from different oilfield units.

Interestingly at page 746 -749 of Vol. 2 of records are emails exchanged between parties and a close study of them shows the trend of no dispute raised by the Appellant especially that of the Respondent at page 748;
“Sir,
Our last correspondence on the subject matter as you recall was on 27/02/13. From this date till today, it’s exactly 4 months, 2 days that we have neither received a reply nor a single payment for the 6,873 samples we analysed, submitted results and invoices.
In the meeting before the correspondence of 27/02/13, the first four months of the POOC samples and all the NPDC samples had no issues whatsoever of which we expected in the minimum we would have been paid long before now.
For the 10 months we rendered this service, committing huge resources in terms of manpower, equipment, logistic and time it should be fair on your part with all intents and purpose to pay.
Talking to our lawyers we were advise to give sufficient, time to test your sincerity in all of these. This is because our company has been rendering similar service to you since 1999 till March 2012,when we stopped work when it was obvious that we were not receiving any payment. As we repeatedly made you aware, similar jobs we rendered to other companies, we submitted invoices on-line and got paid maximum three weeks from the date of submission without having to go through these pains.
SIGNED
A. Nena Orien MD/CEO

This was followed up with another email which was also not replied.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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I see another email at page 823, Vol. 2 of record which states as follows;
“Further to our discussion yesterday, it is clear that the result covering Sept 02 – Oct 01, 2011 (17 pages) in all which you sent to us are not in dispute as confirmed by you …those that had differences were in line with acceptable standards when a particular sample is analysed by different laboratories.
So, they are confirmed for payment. You then raised the issue on the fact that it was actually the ones of Jan 2012 that had major differences, so pls send them together with the third-party analysis result for us to move forward on this beleaguered subject As a reminder, a total of 6,873 samples were analysed and result submitted to Panocean by us between May 2011 to March 2012 when we stopped work due to no payment.
Regards
A. Nena Orien.

From the position of paragraph 5, of the defence and 2, 3, 4 at page 785 of the record, evidence at trial and these emails reproduced above it is clear that; a) there were no complains whatsoever on the job. b) repeated demands were not met and no explanation was issued c) the Respondent opted to stop work on the samples and not that the Appellant stopped them. d) there has been no reply to these position (samples or bill nor stoppage) e) there was no repudiation of NPDC samples f) there has been no payment or negotiation on any of the bills/invoices submitted g) the area of complaints was not serious and if it was, it was not followed up.

Now after much demands, the Appellant complained in passing howbeit the differences in a batch which the Respondent requested to be returned to do a cross check. I find that there was no follow-up reply to this nor was it addressed at trial. I must state here that the case of the Respondent was clear in its statement of claim and reply together with its statement on oath but unfortunately it was not addressed at trial and left a lot of loopholes on its part. An appellate Court can only work on the records of material before it, hard cold facts and not on assumptions and speculations. The Court and the parties are bound by the records.

The address is not evidence no matter how well written.

Most importantly, which I find curious is that there was no formal complaint on this area which was pleaded in paragraphs 7, 8, 9 and 11 of the statement of defence but no particulars of deficient results or invoice that was rejected having agreed that some were suspected to have differences, it is expected that for the Court to have an overview it would have been pleaded.
Furthermore, I find it amazing that the Appellant was silent on this in paragraph 9 of its sworn oath by 1st defendant at page 797 of the record which was never adopted, instead it was the evidence and cross examination of one Michael Odigie and his statement on oath at page 956 of Vol 2 of record that it was the evidence on behalf of the Appellant, from the cross examination, it’s clear that the witness did not participate directly and did not know the entire history of issues at play.
It was Mr. kponu that took part in discussions and signed all the receipt of results and invoices tendered, but did not testify.
Again, if the Appellant was serious of this defence it ought to have filed a counter claim to the action, instead it filed an unconditional appearance. Be that as it may, I do not find any material evidence to agree that some or parts of the samples had issues that were not rectified. In CHEMICAL AND ALLIED PRODUCTS PLC v VITAL INVESTMENTS (2006) LPELR -5434 (CA) the apex Court held on whether he who asserts must prove; effect of failure thereof;
“By the Appellant alleging a meeting having been held by parties for instalmental payment, the onus had shifted onto it to prove the assertion. The law is trite that he who asserts has the burden of proof. The Appellant ought to have called evidence to that effect or produce a document evidencing same. It is not enough as submitted by the Appellant on his reply brief that the instalmental payment was pleaded on their further amended statement of defence. The law is trite that pleadings not substantiated by evidence go to no issue.”
per OGUNBIYI, J.S.C (Pp. 27-28, paras. E-A).
See; AFOLABI & ORS v WESTERN STEEL WORKS LTD (2002) LPLER – 12158.
In the light of the above, I am satisfied that the Appellant is bound in law to pick up liability of the entire bill for samples worked on by the Respondent having failed to discharge his onus that shifted to him by virtue of Section 135 of the Evidence Act.
Flowing from the above, the acts of the Appellant can be likened to one who supplied the cooking materials for a meal and has enjoyed the benefits of the meal and then turns around to complain about the materials used in making up the meal, claiming innocence. See; NWANKWO v NZERIBE (2003) LPELR- 5452 (CA), where the Court on the position of the law as regards a party who has benefited from a transaction and turns around to challenge legality of the transaction held thus;
“Finally, as it was not denied by the Appellant that he never received the amounts which the plaintiff/Respondent said he lent to him at his request, I think the principle of unjust enrichment should be made applicable in the instant case. Under the said principle, the Appellant, who freely entered into the loan agreements and benefited from them by receiving the various sums advanced to him under the said agreements, should not be allowed to rely on frivolous excuses and thereby continue to unduly enrich himself from the benefit he received under the loan agreements.”
per AKINTAN, J.S.C (P. 15, paras. B-E)
EJIGINI v EZENWA & ORS (2003) LPELR -10329. (CA); OGUNLADE v FMBN &ORS (2006) LPELR – 7722(CA).
The Respondent having reasonably satisfied the lower Court, the burden of proof shifted to the Appellant.
The Supreme Court in OHOCHUKWU v ATTORNEY GENERAL OF RIVERS STATE & ORS (2012) LPELR – 7849 (SC) held on when the burden of proof would shift thus;
“It is after a Plaintiff has proved his case that the burden of proof shift to the defendant.”
per MUKHTAR, JSC (P. 37, PARA E)
This Court in MR. S. B. OLALEYE v TRUSTEES OF ECWA (2010) LPELR – 4743 (CA);
“However, while the legal burden of establishing a case without relying on the weakness of the defence is always on the plaintiff, the evidential burden of proving the existence of a particular fact can shift or tilt amongst the parties according to how one scale of evidence or the other preponderates, or according to the assertions of the parties in their pleadings. See the case of OLANLOYE v FATUNBI (1999) 8 NWLR (PT. 614) 203 at 226.”
per DENTON – WEST, JCA (P. 23, PARAS. E – G)
Also, in the case of OKULAJA & ORS v ODUBANJO (2017) LPELR – 41949 (CA), it was aptly held by this Court per OBASEKI – ADEJUMO, JCA thus;
“…Also, the Apex Court held per TOBI JSC, in EGHAREVBA v OSAGIE [2009] 18 NWLR (PT. 1173) 299 or (2009) LPELR – 1044 (SC) thus: ‘The burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence where produced on either side, regard being held to any presumption that may arise on the pleadings. See Section 137 (1) of the Evidence Act. If such party adduces evidence which ought reasonably to satisfy the judge that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced and so successively until all the issues in the pleadings have been dealt with.”
See also; NDUUL v WAYO & ORS (2018) LPELR – 45151 (SC); AKINBADE & ANOR v BABATUNDE & ORS (2017) LPELR – 43463 (SC); JOHN & ORS v AMAECHI & ORS (2016) LPELR – 40982 (CA); JAJI & ORS v OLOWORA & ANOR (2015) LPELR –25575 (CA).

The Appellant complained that the lower Court did not avert its mind to the fact that the documents were merely dumped, I have examined the procedure adopted which was consented to by both parties, and find that the lower Court admitted the Exhibits and named same having been agreed upon by parties in the earlier proceedings before it was transferred to AKPERI, J., the Appellant cannot now complain having not done so in the lower Court, I dare say it waived its right.

Aside, I see a copious evaluation of same by the Court in its judgment, both parties dealt with same in their addresses. Therefore, it’s a non-issue in this appeal.

On the whole, the appeal is allowed and succeeds in part. I hold and order that the award sum of N47,632,620.00 (Forty-seven Million, Six Hundred and Thirty-two Thousand, Six Hundred and Twenty Naira) less the N10 Million already paid by the Appellant, thereby making the outstanding debt at N37, 367, 386, is due and proper to the Respondent.

This therefore, varies the judgment of the lower Court and order given at page 968, last paragraph. For clarity purposes, I make the following orders;
1) I award the sum of N37,367,386 (Thirty-Seven Million Three Hundred and Sixty-seven Thousand, Three Hundred and Eighty-six Hundred naira only) as amount due on the work done by Respondent for the Appellant.
2) The interest of 10% is accordingly awarded from 2012 till this date as claimed.
3) 20% interest on the judgment debt from the date of judgment till the sum is liquidated is also awarded.”
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother OBASEKI-ADEJUMO JCA. I am in agreement with the determination of the sole issue articulated by the Appellant and also adopted by the Respondent. I am also in agreement with the conclusions reached in the lead judgment.

I allow the appeal in terms of the orders contained in the lead judgment including that as to costs.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree that the appeal succeeds in part only, as ordered by His Lordship O.A. Obaseki-Adejumo, JCA.

Appearances:

…For Appellant(s)

…For Respondent(s)