PRICE WATER HOUSE v. MOMOH (2020)

PRICE WATER HOUSE v. MOMOH

(2020)LCN/15325(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, July 17, 2020

CA/L/254/09

Before Our Lordships:

Mohammed Lawal Garba Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

PRICE WATER HOUSE (SUED AS A FIRM) APPELANT(S)

And

JOHN MOMOH RESPONDENT(S)

RATIO

COMPETENCE OF THE COURT TO ASSUME JURISDICTION

A trial Court can assume jurisdiction to determine any matter formally filed before it where all the factors expounded in the leading authority on jurisdiction are present, that is, the case of Madukolu & Ors. v. Nkemdilim & Ors. (1962) All N.L.R. (Pt. 3) 581 at 589 – 590 where the position of the law was laid down by the Apex Court, Per BAIRAMIAN J.S.C, thus:
“Before discussing those portions of the record, I shall make some observations on jurisdiction and the competence of a Court. Put briefly, a Court is competent when (1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and (2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction: and (3) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.” PER ALIYU, J.C.A.

WHETHER OR NOT WHAT IS ADMITTED REQUIRES PROOF

In the circumstance, the name of the Appellant was therefore never in issue before the trial Court, because by the simple rule of pleadings, what is admitted requires no proof. See Section 123 of the Evidence Act 2011, which sanctions the trite principle of law. Proof is required from a party who alleges the positive only where there is a denial of the facts pleaded. Indeed, admission is the best evidence of the fact alleged. See Ntuks V. NPA (2007) LPELR-2076 (SC), Akinlagun V. Oshoboja (2006) 12 NWLR (pt. 993) 60, (SC) Din V. African Newspapers of Nig. Ltd (1990) LPELR-947, Orianzi V. A. G. Rivers State & Ors. (2017) LPELR-41737 (SC) and Oguanuhu & Ors. V. Chiegboka (2013) LPELR-19980 (SC). PER ALIYU, J.C.A.

WHETHER OR NOT A PARTY CAN BE ALLOWED TO DEPART ON APPEAL FROM THE CASE IT SETS OUT BEFORE THE COURT OF FIRST INSTANCE

It is now settled principle of law that a party cannot be allowed to depart on appeal from the case it sets out before the Court of first instance. There must be consistency in the case put up before the trial Court with the case put up on appeal for the simple reason that an appeal is not a new proceeding for a party to change course and argue outside what he presented before the trial Court. An appeal is a continuation of the same case canvassed at the trial Court. A party would not be allowed to approbate and reprobate at the same time, which attitude has been condemned in a host of decisions of this Court and the Apex Court. See Ajide v. Kelani (1985) LPELR-30, Edebiri V. Edebiri & Ors. (1997) LPELR-1004 (SC), Registered Trustees of Airline Operators of Nigeria V. NAMA (2014) LPELR-22372 (SC and Fidelity Bank V. The M. T. Tabora & Ors. (2018) LPELR-44504(SC). PER ALIYU, J.C.A.

TYPES OF JURISDICTION

It is also important to point out that there are two types of jurisdiction namely; jurisdiction of a Court as a matter of the Constitution or other substantive law (substantive or statutory jurisdiction) and jurisdiction of a Court as a matter of procedural law. i.e. procedural jurisdiction. The importance of this distinction is that substantive or statutory jurisdiction is conferred by law on a Court as such, it is vital to the Court’s competence to adjudicate over a matter formally brought before it. In contrast, the procedural jurisdiction of the Court, usually made for the benefit of a party, can be waived by the party for whose benefit the procedural law is made, through his conduct or by taking steps in the proceedings, thereby conferring jurisdiction on the Court to hear the matter. See A. G. Kwara State & Anor. V. Adeyemo & Ors. (2016) LPELR-41147 (SC), Tallen & Ors. V. Jang & Ors. (2011) LPELR-9212 (SC)RFG & Anor. V. Skye Bank Plc (2012) LPELR-7880 (CA) Tsokwa Oil V. BON (2002) 11 NWLR (pt. 777) 163 and Nagogo V. CPC & Ors. (2012) LPELR 15521(SC) and NNPC V. Zaria & Anor. (2014) LPELR-22362 (CA). PER ALIYU, J.C.A.

DEFINITION OF “REASONABLE CAUSE OF ACTION”

A reasonable cause of action has been defined and described in uncountable number of decisions of this Court and the Apex Court. In the case of Rinco Construction Co. Ltd V. Veepee Industries Ltd & Anor. (2005) LPELR-2949 (SC) Tobi, JSC defined a “reasonable cause of action” as:
“Reasonable cause of action means a cause of action with some chances of success. For a statement of claim to disclose a reasonable cause of action, it must set out the legal rights of the plaintiff and the obligations of the defendant. It must then go on to set out the facts constituting infraction of the plaintiff’s legal right or failure of the defendant to fulfill his obligation in such a way that if there is no proper defence, the plaintiff will succeed in the relief or remedy he seeks.”
See alsoThomas & Ors. V. Olufosoye (1986) LPELR-2337 (SC) Ibrahim V. Osim (1988) 3 NWLR ((pt. 82) 257, Oshoboja V. Amuda (1992) 6 NWLR (pt. 250) 690 and Uwazuruonye V. Gov. of Imo State (2013 8 NWLR (pt. 1355) 28 at 51. PER ALIYU, J.C.A.

BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Lagos State, Ikeja Judicial Division, delivered on the 13th July 2007 (as shown on page 346 of the main record of appeal) in respect of Suit NO: LD/1420/93 by Hon. Justice A. A. Alabi, (C.J). The Respondent was the plaintiff and by his writ and statement of claim filed on the 6th September 1996, (located at pages 32 to 35 of the main record of appeal) he claimed the following reliefs against the Appellant, the defendant before the trial Court:

1. A declaration that the Plaintiff is entitled, under the Memorandum of Agreement dated the 16th day of October, 1991, to be paid commission at the rate of 8% of the contract sum of US$500,000. 00 and N4,500,000.00 in respect of the contract for computer systems consultancy and technical assistance for NACB computerization and the contract for the establishment of standards and 8% or 6% (whichever is applicable) on any contract sum paid to the Defendant under the Phase II NACB Assignment.

2. The respective sum of $161, 807.81 (One Hundred and Sixty-One Thousand, Eight Hundred and Seven United States Dollars, Eighty-one Cent) or the Naira equivalent at the time of payment and the sum of N360,000.00 (Three Hundred and Sixty Thousand Naira) being the sums due and owing to the Plaintiff respectively as commission for the marketing and other efforts in securing the NACB Phase I Assignment pursuant to the Memorandum of Agreement dated the 16th day of October 1991 and which sums the Defendant has failed and or neglected to pay despite repeated demands.

During the trial, the Respondent testified as PW1 and tendered several documents including the memorandum of agreement he entered with the Appellant (exhibit P1). The case of the Respondent before the trial Court was that as a managing consultant in information technology, he and the Appellant had an agreement in exhibit P1 pursuant to which he did some jobs for the defendant in respect of two separate Contracts with the NACB. The two projects were in two phases, I and II respectively. It was agreed by the parties that the Respondent would be paid remunerations in two components, namely the fixed component of N168, 000 per annum as retention fees and the variable component depending on the payment made to the Appellant for the projects. After the completion of the projects, the Appellant was paid US$500, 000 from which it paid the Respondent $30, 329. 19c leaving a balance of $9,607. 81c unpaid on the Dollar component. On the Naira component, the Appellant was paid N4.5million from which the Respondent was entitled to be paid 8% but the Appellant failed to pay him the agreed sums.

The Appellant denied the claims of the Respondent in terms of its amended statement of defence filed on the 30th September 2004. It called two witnesses in defence of the claim. Its defence was that the Respondent was not entitled to the sums of money he claimed because he did not assure the acquisition of phase II project for the Appellant. The Appellant also asserted that the substantial part of the Phase I and Standard Contract fees were payable to a third party namely Price Waterhouse Jamaica. It further asserted that the Respondent did not do any work or participated in the execution of the contract for the establishment of standards throughout the period of his engagement as its consultant.

After hearing testimonies of witnesses, counsel on both sides filed written final addresses and the matter was subsequently adjourned for judgment. In his judgment, the learned trial believed the evidence of the Respondent and granted all his claims against the Appellant having found and held that:
Based on the credible evidence placed before this Court by the claimant and based on the terms of agreement as contained in the memorandum exhibit P1, it is my judgment that the claimant has proved on a preponderance of evidence that he is entitled to $161,807.81 or the Naira equivalent at the time of payment and the sum of N360, 000. 00, being the sum due and owing to the plaintiff respectively as commission for the marketing and other efforts in securing the NACB Phase I assignment pursuant to The Memorandum of Agreement dated 16th day of October, 1991 and which sums the defendant has failed and or neglected to pay. Cost of N20, 000.00 is awarded in favour of the claimant.

The Appellant was unhappy with the judgment of the trial Court and he initially filed his notice of appeal on the 20th July 2007, but it was amended and filed on the 11th October 2017, deemed properly filed by the order of this Court made on the 26th October 2018. The Appellant relied on ten grounds of appeal contained in the said amended Notice of Appeal.

The main record of appeal was deemed properly transmitted on the 13th January 2010. A supplementary record of appeal was transmitted on the 15th July 2010. The Appellant’s brief of argument was settled by Akinfolabi Rokosu Esq. and filed on the 11th October 2017, but deemed properly filed and served on the 26th October 2018. The learned Appellant’s counsel proposed the following two issues for the determination of the appeal:
1. Whether the Trial Court had jurisdiction to entertain the suit as instituted by the Respondent (Fresh issue raised with the leave of Court and distilled from grounds I and J of appeal).
2. Whether in view of the pleadings and evidence of the parties in this case, the Trial Court was right to hold that the Respondent, as the Plaintiff before the trial Court successfully discharged the burden of proof placed on him in the suit. (Distilled from grounds A, B, C, D, E and F of the amended notice of appeal.)

The Respondent chose not to file Respondent’s brief consequent upon which the Appellant applied by a motion on notice filed on the 13/12/2018, for the appeal to be heard on the Appellant’s brief alone and it was granted. The appeal came up for hearing on the 4th June 2020. On that date, the Respondent and its counsel were absent without explanation, though the record of Court showed that the Respondent was served through counsel with the hearing notice for that date. Tobechi Ogazi Esq. leading Olukemi Owolabi Esq. adopted the Appellant’s brief in urging the Court to allow the appeal and to set aside the judgment of the trial Court.

I have given ample consideration to the grounds of appeal, the record of appeal, particularly the judgment of the trial Court appealed against as well as the Appellant’s brief of argument. I am satisfied that the two issues proposed by the Appellant adequately captured his complaint in this appeal. I therefore adopt the said two issues as my guide in the determination of this appeal.

ISSUE ONE
This is a new issue raised with the leave of Court by which the Appellant contended that the trial Court lacked jurisdiction to determine the Respondent’s case as constituted before it. The learned Appellant’s counsel argued this issue under two heads. Firstly that the Appellant was wrongly sued by the Respondent and secondly that the Respondent’s suit did not disclose a cause of action.

On the first leg, he submitted that the suit of the Respondent is incompetent because the Appellant was wrongly sued as a party. This position is borne by the clear endorsement of the writ of summons where the Appellant was sued as “Price Water House (Sued as a “Firm”). He argued that though the Respondent described the Appellant in its statement of claim as a partnership carrying on business within the jurisdiction of the trial Court at 26, Ajani Olujare Alaka Estate, Surulere Lagos, but in his evidence as PW1 under cross-examination, the Respondent testified that the party he was suing was “Price Water House World Firm” with its headquarters in London, England. The Respondent also testified that he was not aware of any firm under the name “Price Water House World Firm operating in Nigeria. Learned Appellant’s counsel argued that while Price Water House (Sued as a “Firm”) is a Nigerian entity, Price Water World Firm is a foreign entity and the Respondent was familiar with each of the entities and their correct names by which they can be sued. He submitted that the evidence of the Respondent was at variance with his pleading since he testified that he was suing Price Water House World Firm.

Learned counsel further referred the Court to the Respondent’s testimony (pages 54 to 55 of the record) on the reason why he chose to sue “Price Water House (Sued as a “Firm”) instead of Price Water House World Firm, was because to the best of his knowledge all the partners in Price Water House (Sued as a Firm) in Nigeria are members of Price Water House World Firm. On this evidence, the Appellant submitted that although the two entities are related, but in law, they are separate with attendant legal consequences including the right to sue or be sued in their separate names even if they have partners in common.

The learned Counsel further argued that by exhibits P1, P2 (a), and P2 (b), the legal entity undertaking work for the NACB was Price Water House Associates Ltd as opposed to the Price Water House (Sued as a “Firm)” sued by the Respondent. It was submitted that the reason given by the Respondent for not suing Price Water House Associate Ltd is unacceptable in law and does not allow the arguments on misnomer to avail the Respondent in this appeal. He relied on the case of Registered Trustees of the Airline Operators of Nigeria V. NAMA (2014) 8 NWLR (pt. 1408) 1 at 31 where the Apex Court held that misnomer occurs when a correct person is sued in a wrong name.

He submitted that since the Respondent was familiar with all the three entities namely; Price Water House World Firm, Price Water House Associates Ltd and Price Water House (Sued as a “Firm”), his reason for suing the Appellant simply because it is a partner to Price Water House World Firm showed that Respondent’s mistake is not on the incorrect or wrong name of the defendant but rather mistake as to the identity of the party being sued. That the Respondent’s reasons for choosing not to sue the other two entities raise reasonable doubt as to the identity of the party the Respondent intended to sue. The Court was urged to strike out the name of the Appellant for being an incompetent having been wrongly sued.

We were also referred to the testimony of the Respondent at pages 54 to 56 of the record of appeal, to the effect that exhibit P1 was made with the Appellant, it was submitted that at best, the evidence showed that the Appellant acted as agent of a disclosed principal namely Price Water House Associates Ltd and/or Price Water House World Firm and these entities are the proper parties to be sued on exhibit P1. The learned Appellant’s counsel urged us to either dismiss or strike out the Respondent’s suit. He relied for support of his argument on the cases of Osigwe V. PSPLS Mgt. Consortium Ltd (2009) 3 NWLR (pt. 1128) 378 and Akindele V. Abiodun (2009) 11 NWLR (pt. 1152) 356 among others.

In arguing the second leg of issue one, learned Appellant’s counsel submitted that the Respondent’s suit before the trial Court disclosed no cause of action, in view of the relief the Respondent sought in paragraph 12 of his amended statement of claim, by which he claimed 8% commission payment for marketing activities he claimed he secured from the NACB Phase II contract for the Appellant. It was contended that the Respondent failed to disclose the dates he made these marketing activities and secured the NACB Phase II contract for the Appellant, nor did he set out the contract sum paid to the Appellant as value for the said contract.

The learned Appellant’s counsel further drew out attention to the Appellant’s exhibits D14 which shows that as at 6th May 1993 when the Respondent filed this suit, the NACB Phase II Contract was still at the proposal stage. He posited that this fact is clear from the evidence of DW2 to the effect that the NACB Phase II contract was awarded to the Appellant in June 1994, a period of 13 months after this suit was instituted. Therefore the Respondent’s cause of action has not accrued on this head of claim, as at the time the Respondent filed the suit, which made his claim premature and constitutes an abuse of Court’s process. He placed reliance on the cases of PASTA Ltd V. Babatunde (2008) 8 NWLR (pt. 1089) 167 at 293 and Umeh V. Iwu (2008) 8 NWLR (pt. 1089 225 for support.

RESOLUTION OF ISSUE ONE
This issue raised a challenge to the jurisdiction of the trial Court to determine the Respondent’s suit. Jurisdiction is the authority a Court has to decide matters or to take cognizance of matters presented before it. A trial Court can assume jurisdiction to determine any matter formally filed before it where all the factors expounded in the leading authority on jurisdiction are present, that is, the case of Madukolu & Ors. v. Nkemdilim & Ors. (1962) All N.L.R. (Pt. 3) 581 at 589 – 590 where the position of the law was laid down by the Apex Court, Per BAIRAMIAN J.S.C, thus:
“Before discussing those portions of the record, I shall make some observations on jurisdiction and the competence of a Court. Put briefly, a Court is competent when (1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and (2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction: and (3) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.”

Also the jurisdiction of a Court to determine a case may be determined as per subject matter of the case, the parties between whom the issue in contention is joined, or the kind of relief sought. These factors operate exclusively of one another such that if any one is faulty, in spite of the other two being present, the Court cannot exercise any valid jurisdiction. The mere presence of one feature does not exclude the need for the presence of all other features. See Angadi V. P.D.P & Ors. (2018) LPELR-44375 (SC).

In determining whether a Court has jurisdiction on a matter before it, the law requires that only originating processes containing the pleadings and the reliefs sought by the plaintiff should be considered. See Inakoju V. Adeleke (2007) 4 NWLR (pt. 1025) 427 at 588 to 589, Adetayo V. Ademola (2010) ALL FWLR (pt. 533) 1806 at 1825 to 1826.

In this appeal, the Appellant’s complained under issue one that the suit is incompetent because the Appellant was wrongly sued as a defendant as per the originating processes commencing the suit before the trial Court, as such the trial Court had no jurisdiction to determine the suit against an incompetent party. He contended that the Respondent sued the Appellant as “Price Water House (sued as a “Firm”)” and this was wrong, implying that the proper parties were not before the trial Court.

It is necessary at this juncture to refer to the pleadings of the parties in order to determine this complaint. In paragraph 2 of his amended statement of claim filed on the 6th September 1993, (copied at pages 32 to 35 of the record of appeal), the Respondent averred that:
“The Defendant is a partnership firm carrying on business within the jurisdiction of the Honourable Court at 26, Ajani Olujare Street, Alaka Estate, Surulere, Lagos.”
The Appellant’s reply to the above averment of the Respondent is contained in paragraph 2 of the its amended statement of defence filed on the 4th October 2004 located at pages 160 to 161 of the record of appeal and it is reproduced below:
“The defendant admits paragraphs 1, 2 and 11 of the statement of claim.”

The Appellant also, by its paragraph 3 of the said amended statement of defence admitted the facts pleaded in paragraphs 3 and 4 of the amended statement of claim regarding the agreement entered into between it and the Respondent, the terms of which are contained in a letter dated 16th October 1991, admitted in evidence as exhibit P1 in the course of the trial. In effect the Appellant admitted that it is a partnership firm carrying on business in Nigeria at the stated address. It also admitted that as a partnership, it entered into a written contract with the Respondent in that name.

Thus having admitted that it is indeed Price Waterhouse (A “Firm”) sued by the Respondent, it amounts to a somersault for the Appellant to argue the contrary in this appeal. The Appellant’s complaint under this issue is completely at variance with its case at the trial Court. It is now settled principle of law that a party cannot be allowed to depart on appeal from the case it sets out before the Court of first instance. There must be consistency in the case put up before the trial Court with the case put up on appeal for the simple reason that an appeal is not a new proceeding for a party to change course and argue outside what he presented before the trial Court. An appeal is a continuation of the same case canvassed at the trial Court. A party would not be allowed to approbate and reprobate at the same time, which attitude has been condemned in a host of decisions of this Court and the Apex Court. See Ajide v. Kelani (1985) LPELR-30, Edebiri V. Edebiri & Ors. (1997) LPELR-1004 (SC), Registered Trustees of Airline Operators of Nigeria V. NAMA (2014) LPELR-22372 (SC and Fidelity Bank V. The M. T. Tabora & Ors. (2018) LPELR-44504(SC).

It is also observed that in arguing this leg of issue one, the Appellant mentioned two other entities namely; “Price Water House World Firm” and “Price Water House Associates Ltd” which it argued that the Respondent ought to sue on the contract in issue at the trial Court. With due respect, the learned counsel is either confused or he is deliberately trying to confuse or mislead us, especially as he abandoned this particular argument of being sued as wrong party and contended that the Appellant acted as an agent of Price Water House World Firm. In any event this argument goes to no issue in view of my finding supra that the Appellant admitted being the defendant sued by the Respondent.

With regards to the learned Appellant’s counsel submissions in paragraph 4.18 of the Appellant’s brief to the effect that the Respondent’s evidence under cross-examination in which he stated the reason why he sued the Appellant rather than Price Water House World Firm, was because all the entities played roles in the execution of the contract in issue and more importantly, that they are all partners with the other entities mentioned by the Appellant. The learned Counsel submitted that this claim of the Respondent is not tenable in law, since each entity is separate regardless of the fact they are partners in business. In view of the pleadings and evidence in this case, I disagree with this position of the Appellant. This is because of the legal definition of a “firm”. See Black’s Law Dictionary, Ninth Edition at page 710 where a “firm” is defined as:
“The title under which one or more persons conduct business jointly. The association by which persons are united for business purposes. Traditionally this term has referred to a partnership as opposed to a company. But today it frequently refers to a company.”
See also the case of Laibru Ltd V. Building and Civil Engineering Contractors (1962) LPELR-25017 (SC), where Tailor, JSC had this to say:
“I should make it clear that by the use of the word “firm” in pleadings drafted by a member of the legal profession, I take it that he had in mind the same meaning attached to the word in Halsbury’s Laws of England Vol. 22, (1st Ed.) at page 5, i.e.:- a short collective name for the individuals who constitute the partners, and the name under which they trade is their firm name.” (DISSENTING)

Indeed the evidence of the Respondent under cross-examination at page 55 of the record, which the Appellant relied upon, he (Respondent) stated that the two entities mentioned by the Appellant were involved in the contract execution for the NACB, indicating that they worked as business partners. The said evidence of the Respondent squarely fits into the definition of a “firm” quoted supra, and indeed supports the Respondent’s case. The argument of the Appellant under this leg of objection is discountenanced.

The second aspect of issue one is a complaint that there is no reasonable cause of action or that the cause of action was premature in view of the fact that the Appellant was awarded the Phase II contract after the institution of this action. A reasonable cause of action has been defined and described in uncountable number of decisions of this Court and the Apex Court. In the case of Rinco Construction Co. Ltd V. Veepee Industries Ltd & Anor. (2005) LPELR-2949 (SC) Tobi, JSC defined a “reasonable cause of action” as:
“Reasonable cause of action means a cause of action with some chances of success. For a statement of claim to disclose a reasonable cause of action, it must set out the legal rights of the plaintiff and the obligations of the defendant. It must then go on to set out the facts constituting infraction of the plaintiff’s legal right or failure of the defendant to fulfill his obligation in such a way that if there is no proper defence, the plaintiff will succeed in the relief or remedy he seeks.”
See alsoThomas & Ors. V. Olufosoye (1986) LPELR-2337 (SC) Ibrahim V. Osim (1988) 3 NWLR ((pt. 82) 257, Oshoboja V. Amuda (1992) 6 NWLR (pt. 250) 690 and Uwazuruonye V. Gov. of Imo State (2013 8 NWLR (pt. 1355) 28 at 51.
In order to determine whether a suit discloses a reasonable cause of action, only the statement of claim is considered and the judicial practice is that so long as the plaintiff/claimant raises some questions fit for the Court’s determination regarding a wrong done to him by the defendant, based on which he seeks redress, a reasonable cause of action is disclosed. This has nothing to do with whether or not the plaintiff will succeed in the final analysis of his claims.

In this appeal as noted earlier, the Respondent’s amended statement of claim is contained at pages 32 to 35 of the record of appeal. He stated in paragraphs 3 to 10 therein that:
3. By a Memorandum of Agreement contained in a letter dated the 16th day of October, 1991 and made between the Defendant and the Plaintiff, the Plaintiff agreed inter alia to oversee and manage on behalf of the Defendant the execution of the phase I of the Nigerian Agricultural Co-operative Bank Assignment (NACB Phase I Assignment) and to undertake the marketing and other efforts to secure for the Defendant the contract for the Phase II of the Nigerian Agricultural Co-operative Bank Assignment (NACB Phase II Assignment).
4. In consideration of the services to be rendered by the Plaintiff, clause 1 and clause 3(b) of the Memorandum provided as follows:
“…. In phase I of the Assignment, you will be remunerated on the basis of 8% of the US$ fee collections as and when these are received.

Such remuneration is currently estimated at $40K.
….. 3. GENERAL MARKETING
…. Your compensation basis will be as follows:
N168k per annum
*Commission payable on new clients in proportion to collections on the following basis:
The first 5M of the applicable currency in which fees collection are received.
PW fee expectation will be grossed up for the commission and any related marketing expenses”
5. The Phase I Assignment comprise a contract for computer systems consultancy and technical assistance for NACB computerization and a contract for the establishment of standards, respectively valued at US$500, 000 (Five Hundred Thousand United States Dollars) and N4, 500, 000. 00 (Four Million, Five Hundred Thousand Naira).
6. Pursuant to the agreement the Plaintiff successfully managed the execution of the NACB Phase I Assignment including establishing, in the course of the execution of the NACB Phase I Assignment, the required standards, and at the request of the Defendant undertook the marketing efforts that secured for the Defendant the NACB Phase II Assignment, a separate and distinct and wholly independent contract from the NACB Phase I Assignment.
7. Consequent upon the Defendant’s request aforementioned request, the Plaintiff undertook, at the expense of the Defendant, several trips to Kaduna in Kaduna State and Abidjan in Cote De Voire for this purpose and subsequently developed the Bid that secured for the defendant the NACB Phase II Assignment after expending much time, labour and expertise thereon.
8. The Contract for the Phase II of the NACB Assignment comprise an initial contract value of US$1, 900, 000. 00 (One Million, Nine Hundred Thousand United States Dollars).
9. The Plaintiff avers that in accordance with the agreement between the Defendant and himself, he is entitled to be paid;
a) 8% of the contract sum of US$500, 000 .00 and N4, 500, 000. 00 which is US$40, 000 and N360, 000 respectively.
b) 8% of the US$1, 900, 000 .00 which is US$152, 000 .00.
c) 8% of any subsequent contract value on the Phase II Assignment.
10. The Plaintiff avers that pursuant to the said Agreement, the Defendant paid the retention fee of N168, 000. 00 per annum and made available to the Plaintiff the Peugeot 505 LA 4374 AT with the N7, 200 .00 per annum for the driver and paid in respect of work done by the Plaintiff on the NACB Phase I Assignment, by means of various cheques, the total sum of US$30, 392. 19 but refused and or failed to pay the remaining sums due to the Plaintiff as listed in paragraph 9 hereof despite repeated demands by the Plaintiff and his solicitors.

The above-reproduced pleaded facts of the Respondent formed the basis of the declaratory reliefs he sought before the trial Court. The said reliefs, already reproduced at the beginning of this judgment, are for payment of the balance sums of money agreed between him and the Appellant as per the memorandum of agreement signed by them. Having examined the facts and reliefs the Respondent sought against the Appellant, it is clear to me that his suit related to his claim of a legal right as per the written agreement between him and the Appellant. The legal wrong of the Respondent he complained of and for which he sought the intervention of the Court was the Appellant’s failure to fulfill its own part of the agreement by refusing to pay to the Respondent the sums of money he was entitled to, having fulfilled his own part of the contract in the execution of the NACB Assignment Phase I and the marketing activities that assured the Appellant secured Phase II of the NACB Assignment. Without proper defence, the facts averred by Respondent, backed by a written contract will certainly succeed, which in effect meant that the Respondent’s suit not only discloses a cause of action, but indeed a reasonable cause of action fit for the determination of the Court and I so hold.

The Appellant also complained that the claim of the Respondent as stated in paragraph 7 of his statement of claim (quoted supra) in respect of NACB Phase II assignment is premature and incompetent because the said contract was not awarded to the Appellant until after the suit was filed as shown in the Appellant’s exhibit D14. As such he was not entitled to the sum of US$152, 000 awarded to him by the trial Court for the marketing and other efforts he made for the securing of the said contract. In resolving this complaint, I note that in his evidence as PW1, the Respondent testified at page 44 to 46 of the record (in support of paragraph 7 of his amended statement of claim), that category 2 of his assignment under the memorandum of agreement had to do with marketing and under this category, he was to:
1. Produce monthly report on the competitors’ activity in the I.T. market.
2. To produce a monthly report on new development in the Nigerian I. T. market and to highlight in the report any opportunities therein for the defendant and
3. To support the defendant in taking advantage of such developments and/or responding to clients’ inquiries.

He said it was in the course of his marketing function that he discovered that the Appellant’s competitors were already preparing their pre-qualification tenders for the NACB phase II project, which fact the Appellant did not know until they saw the Appellant’s submitted monthly report. Thereafter, the Appellant and the Respondent mutually agreed that he should secure the inclusion of the Respondent in the Competitors’ list for the project and to support the Respondent in responding to the request for the tender. The Appellant in pursuance to the agreement travelled to Kaduna and Abidjan to plead the case of the Appellant and eventually got them included in the list for competitors for the project. He relied on the travel tickets and other documents to show these marketing activities.

On the other hand, the evidence of the Appellant on record (DW2) is contained in pages 424 to 437. In particular, it is noted that the witness testified in his evidence in chief that the Respondent took no part in assuring the award of the NACB Phase II project but could not explain why the Appellant drafted clause 1(d) in the memorandum of agreement (exhibit P1). Exhibit P1 is attached to the Supplementary record of appeal transmitted on the 15th July 20110. Clause 1(d) of the agreement between the Respondent and Appellant stated that:
1. “In accordance with our requirements, you will assist in
d) assuring the acquisition of the Phase II assignment.”

In his judgment, the learned trial Judge before whom the witnesses testified compared the testimonies of the Respondent (pages 44 to 61 of the record) and that of DW2 (contained in pages 424 to 437 of the record of the record) along with the documentary evidence, particularly exhibits P1 and D5 before coming to the conclusion at page 344 to 345 that it was part of the responsibilities entrusted on the Respondent to assure the acquisition of phase II assignment, and that he participated in the acquisition of the said assignment for the Appellant. Having also read the testimony of the two witnesses on record and the exhibits relied upon, I am in agreement with the learned trial Judge.

Consequently, this argument of the learned Appellant’s counsel to the effect that the claims of the Respondent was premature is not supported by the evidence on the record, particularly in the fact of paragraph 1(d) of the memorandum of agreement, exhibit P1, upon which the claim of the Respondent was based. The agreement between the parties to this appeal was clearly not subject to any conditions. I therefore resolve issue one against the Appellant

ISSUE TWO
Under this issue the learned Appellant’s counsel conceded that that evaluation of evidence and ascribing probative value thereto belong to the province of the trial Court, but this Court will interfere with the trial Court’s finding of facts where it is demonstrated that the finding of facts were perverse. It was his contention that in this case, the findings of the trial Court at pages 344 to 345 of the record are perverse. We were referred to paragraph 13(a) and (b) of the Respondent’s statement of claim wherein he prayed for declaratory reliefs. He argued that the Respondent had the burden to prove his entitlement to the declaratory relief. He contended that the trial Court violated the rule that a claimant of a declaratory relief must succeed on the strength of his case and not rely on the weakness of the defence, because the twin ingredient of the rule is credibility and sufficiency of evidence, which were absent in the Respondent’s case.

He further relied on exhibits appendix H to exhibit P2 (a) (billing schedules) and submitted that the Respondent failed to plead and lead evidence on the compensation he received on the total contract sum as an internal consultant to the Appellant from 15th October 1990 when the NACB Phase I started until 30th September 1991 when he left the role. That the Respondent’s pleadings and evidence are too speculative and baseless and cannot support the findings of the trial Court to the effect that the Respondent was entitled to the sums of $9, 607. 81 for carrying out external consultant work in respect of the computer systems consultancy and technical assistance.

The learned Appellant’s counsel further referred to the evidence of PW1 under cross-examination where he admitted the involvement of the Price Water House World Firm and Price Water House Jamaica West Indies as the firms that executed the NACB Phase I assignment. He contended that the trial Court improperly evaluated the evidence to reach the decision to the effect that the Respondent was entitled to the sum of $9, 607. 81 and we were urged to set aside the said decision.

On the Respondent’s claim for payment of 8% commission on the total contract sum of N4.5million under the NACB Phase I assignment for the establishment of standards, the learned counsel submitted that the learned trial Judge relied solely on the oral evidence of the Respondent to vary the content of exhibit P1 regarding establishment of standards. That the contract for establishment of standards was premised on the underlying contract in exhibit P2 (b) dated August 1990. Further posited that the trial Court failed to properly evaluate exhibit P1 on this point but rather relied heavily on the oral evidence of the Respondent to arrive at its decision. He submitted on the authority of UBN V. Lawal (2015) 14 NWLR (pt. 1478) 203 at 225 that this Court has the right and the duty to intervene and set aside the findings of the trial Court for its failure to consider the express provision of exhibit P1. He further pointed out that the Respondent failed to give concrete evidence to show that he indeed carried out the task of establishment of standards for the NACB Phase I as clearly shown in pages 39 to 56 of the record of appeal. He also draws the Court’s attention to the oral testimony of the Respondent at pages 41 to 45 of the record of appeal wherein he focused only on the role he played at the proposal stage before the award of exhibit P2 (a) and (b) as an internal consultant rather than the work he did as an external Consultant.

With regards to the Respondent’s testimony to the effect that the Appellant received the sum of N4.5milion, learned Counsel submitted that the Respondent failed to provide any evidence to substantiate this claim that the Appellant actually received that sums of money into its Nigerian Bank account, nor did he call the Nigerian bank to testify in support of his claim. It was further submitted that if the trial Court had applied proper evaluation of the Respondent’s oral and documentary evidence i.e. exhibits P2 (b), the contract document between the NACB and the Appellant, and realized that the Respondent’s pleadings on the establishment of standards, its findings at pages 344 to 345 of the record, to the effect that the Respondent was entitled to 8% of N4.5million for establishment of standards would have been different. He posited that the finding is perverse and has resulted in miscarriage of justice. He therefore urged the Court to set it aside.

On the claim of the Respondent for a declaration for payment of 8% commission on applicable subsequent contract sum for marketing activities under the proposed NACB Phase II assignment, the Appellant’s learned counsel submitted that the Respondent had the onus of proving same, being a declaratory relief. But that beyound the oral assertion of the Respondent at pages 39 to 56 of the record of appeal on the marketing activities and efforts he made to secure the award of the NACB Phase II contract for the Appellant, he failed to adduce any concrete evidence to show when such events occurred. The Respondent’s failure to prove this means that the trial Court’s findings to the effect that the Respondent was entitled to the sum of US$161, 807.81 and $9, 607.81 totaling US$152, 000 being 8% commission on the subsequent contract marketing and other efforts in section the NACB Phase II for the Appellant has no leg to stand on and of necessity needs to be reversed. The Court was urged upon to so hold and set aside the said finding of the lower Court.

The learned Appellant’s counsel also contended that while the Respondent tendered exhibits P2 (a) and (b) the two contracts between Price Water House Associates Ltd and NACB to substantiate his claims for computer systems consultancy and technical assistance under the NACB Phase I assignment and to establish the standards, but he failed to adduce any documentary evidence to show the underlying contract for the NACB Phase II and also failed to demonstrate how the Respondent’s activities and efforts secured the said contract for the Appellant. It was also contended that the Respondent failed to present any documentary evidence to show the contract sums that the Appellant received from NACB in respect of the said Phase II project on which the calculation of his claim of a total of $152, 000 was arrived at. It was therefore argued that the finding of the trial Court that he is entitled to the said sums of money was based on speculation. Relying on the cases of Plateau State V. A. G. Federation (2006) 1 S.C. (pt. I) at 60 and John Holt Plc V. Allen (2014) 17 NWLR (pt. 1437) 443, the Appellant urges the Court to set aside that finding of the trial Court which was arrived at based on speculation and conjecture claim.

It was further submitted that the learned trial Judge wrongly relied on the oral evidence of the Respondent to vary, alter and contradict exhibit P1. The learned counsel referred to clauses 1(d), 3 and second proviso to clause 3 of exhibit P1, which purported that the Respondent has the responsibility to assist the Appellant in assuring the acquisition of the NACB Phase II assignment and to carry out general marketing activities to existing and current clients as well as prospective new clients. He argued that the second proviso to clause 3 of exhibit P1 regarding the payment to the Respondent of 8% and 6% commission is only available to the Respondent when his marketing activities led to the introduction of “new clients” in proportion to collections, i.e. contract net value payment to third party and re-imbursable. He contended that exhibit P1 is silent on who constitutes new clients.

Therefore the findings of the trial Court to the effect that the Respondent was entrusted with the responsibility to assure the acquisition of Phase II assignment and indeed he got to know the competitors for the project and informed the Appellant through his monthly report, was based on the (wrongful) assumption that the Respondent’s oral testimony for the marketing activities he carried out was for new client within the purview of the second proviso to clause 3 of exhibit P1. As such he was therefore entitled to the 8% commission to any subsequent contract sum. He contended that the Respondent’s becoming aware of the competitors for the NACB Phase II assignment did not qualify as “new clients” under the express provision of the second proviso to clause 3 of exhibit P1. In this regard, it was submitted that the Respondent failed to call evidence or name the employee of the Appellant with whom he mutually agreed to vary the terms of the second proviso to clause 3 of exhibit P1 to the effect that NACB was treated as a new client for the purpose of NACB Phase II assignment. He argued that had the learned trial Judge applied correct and proper evaluation of the oral evidence of the Respondent contained at pages 39 to 56 of the record of appeal as well as the proper interpretation of exhibit P1 in relation to the Respondent’s general marketing duties under exhibit P1, his findings and decision at page 345 to the effect that the Respondent was entitled to 8% payment commission on any subsequent contract sum would have been different. The Court was therefore urged to set aside the said finding and decision of the trial Court.

On the claim of the Respondent that he made trips to Kaduna for the purpose of obtaining a no objection from the NACB regarding including the Appellant among the competitors list for the NACB Phase II assignment to be taken to ADB’s office Abidjan; the Appellant submitted that the failure of the Respondent to support this allegation with documentary evidence such as air flight tickets, hotel accommodation, and the said no-objection letter he claimed he obtained from NACB, made his claims baseless. It was also argued that exhibits P3 (a) to (e) relating to trips to Abidjan cannot be used to support this claim.

Similarly, the Appellant submitted that exhibits P3 (a) to (e) being travel documents from Lagos to Abidjan and receipts of accommodation are insufficient evidence to prove/establish the Respondent’s claimed marketing efforts to assure the acquisition of NACB Phase II contract for the Appellant. The reason being that these documents, exhibits P3 (a) to (e) only showed that the Respondent travelled to Abidjan, Cote De Voire and nothing more. As such they cannot corroborate the oral evidence of the Respondent to support his claim. Relying on the case of Ogbe V. Asade (2009) 18 NWLR (pt. 1172) 106 at 131, the Appellant urged us to re-evaluate exhibits P3 (a) to (e) and ascribe the correct probative value to them.

The Court’s attention was also drawn to the fact that beyond the oral assertion of the Respondent that he met with one Dr. Traore of ADB in Abidjan and convinced him to include the Appellant’s name in the ADB’s list of competitors for the NACB Phase II contract, there was no documentary evidence showing the presentation made to the said Dr. Traore or to show the documents submitted to the ADB, or even the competitors’ list to support this assertion. That, had the trial Court considered the lack of evidence to support the Respondent’s oral assertion in support of his substantive claim, it would have arrived at a different decision than its findings to the effect that the Respondent was entitled to his main claim.

The Appellant learned counsel further referred to the evidence DW2 at page 176 of the record of appeal to the effect that he never participated in step 1 of the process that led to the award of the NACB Phase II contract to the Appellant. The Appellant explained that step 1 meant by the DW2 involved receipt of request for proposal from a prospective client, NACB in this case. It was the contention of the Appellant’s learned counsel that the learned trial Judge misapprehended the essence of the evidence of DW2 when he held at page 345 of the record of appeal that DW2 was out to mislead the trial Court with regard to his involvement in step one of the NACB Phase II contract. That it was the DW1 who was the MD of the Appellant at the relevant time, as such he was in the position to receive the request for the proposal and he testified to this in his evidence located at pages 175 to 177 of the record of appeal. It was submitted that this evidence of the DW1 on the first stage of the contract was not discredited under cross-examination, but the trial Court failed to take this evidence into consideration in arriving at its decision.

He argued that even if there is a conflict between the evidence of DW1 and DW2 that conflict can be resolved by exhibit D14, the letter of NACB to the Appellant confirming the status of the NACB Phase II project as at 24th June 1993. He submitted that exhibit D14 confirmed that it was a proposal procedure as testified by DW2 at pages 175 to 177 of the record of appeal, that was engaged by the NACB to secure or award the NACB Phase II contract to the Appellant. It was contended that had the learned trial Judge applied proper evaluation of the oral evidence of DW2 and exhibit D14, he would have arrived at a different decision/findings from the one made at page 345 of the record of appeal. The Court was urged upon to set aside the said findings.

RESOLUTION OF ISSUE TWO
I have deliberately set out in details all the salient complaints of the Appellant canvassed by its learned Appellant’s counsel upon which he branded the judgment of the trial Court as perverse thereby occasioned miscarriage of justice against the Appellant. A decision of a Court is said to be perverse when it runs contrary to the pleadings and evidence before the Court or where a trial Judge takes into account matters which he ought not to consider in arriving at the verdict or where the judge shuts his eyes to the obvious. See Unity Bank Plc V. Bouari (2008) & NWLR (pt. 1086) 372 at 419 (relied upon by the Appellant, Atolagbe V. Shorun (1985) LPELR-592 (SC) and Offodile V. Offodile (2019) 16 NWLR (pt. 1679) 112.

In his argument in support of this issue, the learned Appellant’s counsel contended that there was no sufficiency and credibility of evidence to support the Respondent’s declaratory reliefs before the trial Court. To begin with, it is an elementary settled principle of law that civil cases are determined on the balance of probability also called preponderance of evidence. This involved the trial Judge using an imaginary scale of Justice to weigh the evidence adduced by each party to see and to determine which side the evidence preponderates, meaning which side is heavier in terms of credibility of the evidence led. See Magaji V. Odofin (1978) 4 S.C. 91 and Ezemba V. Ibeneme & Anor. (2004) LPELR-1205 (S.C.) among others.

I have scrutinized the pleadings and the evidence both oral and documentary, particularly the testimonies of the Respondent as PW1 and the testimonies of the Defence as shown in my determination of issue one supra. I also gave ample consideration to judgment of the trial Court contained from pages 333 to 345 of the record of appeal, with a view to determine this allegation of perversity against it. It is pertinent to state that this suit is essentially a claim for breach of contract. This Court, in the case of Bikay Engineering Ltd V. Gov. Ondo State & Ors. (2013) LPELR-20890 (CA), per Gumel JCA held:
“In an action for breach of contract, it is necessary for a Plaintiff to plead facts showing the existence and subsistence of a valid contract as well as its express or implied terms. It is also necessary to show what or which of its terms was breached and in what manner, i.e. particulars of breach. A party seeking to enforce rights under a contract must show that all that was needed to be fulfilled by it had been fully performed. All such terms requiring to be performed are conditions precedent to the enforcement of any right thereunder. Therefore the onus is on the party who asserts breach of contract to prove same before the burden will shift to the other party.”
See also Best Nig. Ltd V. Blackwood Hodge Nig. Ltd & Anor. (2011) LPELR-776 (SC).

In this case I find the learned trial Judge dutifully considered the pleadings of the parties and the evidence adduced in support. He correctly scrutinized the memorandum of agreement of the parties containing the rights and obligations contained therein and the oral evidence of the parties before arriving at the decision that the Respondent has proved his claim of breach of contract against the Appellant. I find that the learned trial Judge followed the criteria set up in the case of Magaji V. Odofin (supra) and the above case of Bikay Engineering Ltd V. Gov. Ondo State & Ors. (supra), before arriving at his conclusion that the Respondent has proved his case. Having also reviewed the record as I stated earlier, I find no iota of perversity against the judgment the trial Court. His decision was in line with the pleadings and evidence adduced before him and nothing else. I therefore have no hesitation in affirming the stamp of approval to the trial Court’s judgment. This issue is resolved against the Appellant.

Having resolved the two issues against the Appellant, I find no merit in this appeal and I dismiss it in its entirety. The judgment of the High Court of Lagos State delivered on the 13th July 2007, in respect of Suit No: LD/1420/93 by the Hon. Justice A. A. Alabi, (C.J.) is hereby affirmed by me. I make no order of cost since the Respondent did not participate in this appeal.

MOHAMMED LAWAL GARBA, J.C.A.: My Learned Brother Balkisu Bello Aliyu, JCA has adequately considered the two (2) issues submitted by the Appellant for decision in this appeal and resolve them in line with the extant principles of law applicable to them, in the lead judgment: a draft of which I read.

I would like to emphasize that the issue (1) raised by the Appellant’s Counsel in the shade of jurisdiction on the ground of the competence of the Appellant as a party, is, from the record of the pleadings of the parties before the Lower Court, clearly spurious and intended to obfuscate the real issue which requires determination in the appeal.

The facts of the case fought by the parties before the Lower Court show that the Appellant, in the name sued, and the Respondent entered into a contract/agreement and there was no dispute as to the name of the Appellant as the competent party who entered into the said contract/agreement. The law does not and will not allow the Appellant’s through counsel, to speak from both corners of his mouth on the issue of the competence of the Appellant or/and to sing different tunes in the Lower Court and in this appeal on the same on the issue. Having expressly admitted the competence of the Appellant in the name it was sued before the Lower Court in the pleadings, as demonstrated in the lead judgment, counsel for the Appellant cannot be heard before this Court to dispute the Appellant’s competence as a party to the case before that Court. Mustapha, JSC, in the case Fatunbi vs. Olanloye (2004) 6-7 SC, 68 succinctly stated the law that: –
“It is also now settled that a party cannot maintain on appeal a case diametrically different from one maintained at the trial. An appeal is normally a continuation of the trial.”
See also Akpa vs. Itodo (1997) 5 NWLR (PT.506) 589. Adegoke Motors Limited vs. Adesanya (1989) 3 NWLR (Pt. 109) 250. Ngige vs. Obi (2004) 14 NWLR (Pt. 999) 31, Commissioner For Finance vs. Ukpong (2000) 1 NWLR (Pt. 653) 363, Ajide vs. Kelani (1985) 3 (Pt. 12) 248.

On the issue 2, I agree completely, that the Lower Court rightly appraised the facts of the case and properly assessed/evaluated the evidence presented by the parties before it in line with established principles of law on evaluation of evidence before and in reaching the decision in the judgment appealed against, thereby dutifully and correctly discharging its primary duty in the case. In that premise, the decision by the Lower Court is not only borne out by, but is amply supported by the credible and sufficient evidence adduced by the Respondent which proved his claims on the balance of probabilities, as required by law. This Court for that reason, has no reason to justify interference with the evaluation of the evidence by the Lower Court. See Ojokolobo vs. Alamu (1998) 9 NWLR (Pt. 565) 226, Sha vs. Kwan (2000) 5 SC, 178 Adebayo vs. Adusei (2004) 4 NWLR (Pt. 262) 44, Agbi vs. Ogbe (2006) 11 NWLR (Pt. 990) 65, Fagbenro vs. Arobadi (2006) 7 NWLR (Pt. 978) 174, C.K. & W.M.C. Limited vs. Akingbade (2016) 4 NWLR (Pt. 1533) 487.
For the reasons adumbrated in the lead judgment and the above, I join in dismissing the appeal for want of merit.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: My Lord, the HON. JUSTICE B. B. ALIYU, JCA afforded me a preview of the draft of the lead judgment which has just been delivered in which he found the appeal as lacking in merit, and consequently dismissed it.
I agree with the said judgment, and I abide with the consequential order made as to costs.
Appeal is dismissed.

Appearances:

AKINFOLABI ROKOSU ESQ. For Appellant(s)

For Respondent(s)