SOCACIC WEST AFRICA (NIG.) LTD v. ACCESSFILED (NIG.) LTD (2021)

SOCACIC WEST AFRICA (NIG.) LTD v. ACCESSFILED (NIG.) LTD

(2021)LCN/15588(CA)

In The Court of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, December 03, 2021

CA/ABJ/CV/409/2020

Before Our Lordships:

Uchechukwu Onyemenam Justice of the Court of Appeal

Stephen Jonah Adah Justice of the Court of Appeal

Danlami Zama Senchi Justice of the Court of Appeal

Between

SOCACIC WEST AFRICA NIGERIA LIMITED APPELANT(S)

And

ACCESSFILED NIGERIA LIMITED RESPONDENT(S)

RATIO DECIDENDI

EVIDENCE OF WITNESS UNDER CROSS-EXAMINATION

There is no difference between evidence elicited during cross-examination and the evidence given during examination-in-chief. The fact that an evidence was elicited during cross-examination does not ascribe less probative value to the same. Such evidence is as good, valid, authentic and potent as evidence in chief. See MTN (NIG) COMM. LTD V. CORPORATE COMM. INV. LTD (2019) 9 NWLR (pt.1678) 427 (SC), STATE V. YAHAYA (2019) 13 NWLR (PT. 1690) 397 (SC), FALOYO V. FALOYO (2021) 3 NWLR (PT. 1762) 114 (CA), SECTION 214 (1), (2) AND (3) OF THE EVIDENCE ACT, 2011. Therefore, the evidence of the DW1 under cross-examination that he signed his deposition on oath at his lawyer’s office is a valid and authentic evidence. PER UCHECHUKWU ONYEMENAM, J.C.A.

DEPOSITIONS ON OATH

Now the bone of contention is whether a deposition on oath signed in a lawyer’s office is admissible in evidence. The principle of law is well settled beyond argument that depositions on oath must be sworn before the person authorized to administer it, with the deponent himself appearing before the said person authorized to administer the oath. Thus, a deposition on oath must be signed by the deponent in the presence of the person authorized to administer oaths. See BUHARI V. INEC (2008) 4 NWLR (PT. 1078) 546, ABDULLAHI ADAMU NAMMAGI V. DR. HUSSAINI TABAGI AKOTE (2021) 3 NWLR 171 (SC), ASHIRU V. INEC (2020) 16 NWLR 421 (SC); SECTION 13 OF THE OATHS ACT; SECTIONS 113 AND 117 OF THE EVIDENCE ACT, 2011.
Therefore, any deposition on oath sworn before any other person other than a commissioner for oaths, a notary public or any other person so authorized by law is incompetent and shall be and must be discountenanced. The failure to swear before a commissioner for oath is a fundamental defect. It is not a defect as to form but a defect as to substance. It is not an irregularity that can be regularized. Such defect offends the law of evidence. See: ABDULLAHI ADAMU NAMMAGI V. DR. HUSSAINI TABAGI AKOTE (SUPRA) AND BUHARI V INEC (2008) 4 NWLR (pt. 1078) 546. Going by the principle of stare decisis, the trial Court and this Court is bound to follow the principle as led down by the apex Court in the above cited authorities. PER UCHECHUKWU ONYEMENAM, J.C.A.

INADMISSIBLE EVIDENCE

It is no longer in argument that where an inadmissible document is admitted by the trial Court, it can be expunged by an appellate Court. This is because a document which is inadmissible under the Evidence Act cannot be allowed to stay in the records. See AKINDURO V. ALAYA (2007) 15 NWLR (Pt. 1057) 312 (P. 338), PARAS CO) (SC). Accordingly, I firm that the deposition on oath of the DW1 not sworn before a Commissioner for Oaths and all exhibits tendered through him are liable to be expunged and the same are hereby, expunged. On whether the trial Court erred in law when it expunged Exhibit “O” at the judgment stage despite having admitted it earlier. The law is well settled that where a document is wrongly admitted in evidence, same can be expunged by the Court before its decision is handed down. The basis for this rule is that the evidence wrongly admitted does not go to any issue and, that being so, it cannot be legal evidence upon which the Court can make a finding of fact. A Court can only base its judgment on legally admissible evidence. See NWAOGU V. ATUMA (2013) 11 NWLR (Pt. 1364) 117 (SC), B. MANFAG. (NIG.) LTD. V. M.S.O.I. LTD. (2007) 14 NWLR (PT. 1053) 109 (SC), AGBAJE V. ADIGUN (1993) 1 NWLR (PT. 269) 261 (p.272, PARA. E) (SC), ALH. ISIYAKU YAKUBU ENT. LTD. V. TERU (2020) 16 NWLR (PT. 1751) 505 (CA). PER UCHECHUKWU ONYEMENAM, J.C.A.

ADMISSION MADE IN THE COURSE OF MEDIATION

“A letter written in the course of mediation between parties to a dispute is inadmissible in evidence in a subsequent suit between them. The principle is based on the need for the parties to speak freely in their quest for a peaceful resolution of the dispute. The need for free discussion would be seriously prejudiced or impaired if any offer or admission made in the process of the negotiation could be given in evidence and used in support of a party’s case in Court afterwards if the negotiation breaks down. Therefore when the negotiations are reduced in writing they are usually marked “without prejudice ” for the avoidance of doubt and so remain inadmissible against the parties or any of them in the ensuing suit in Court, However, if the words “without prejudice” are not stated in plain language, it does not detract from the fact that the words are implied in the negotiations conducted in documentary form or verbally, In this case, the respondent’s letter dated 2nd March, 2009 was made in the process of reconciliation between the parties. So the Court of Appeal rightly upheld the decision of the trial Court that the document is inadmissible. [Ashibuogwu v. A.-G., Bendel State (1988) 1 NWLR (Pt.”) 138″
See also MAKANJUOLA V STATE (2021) LPELR 54998 (SC). PER UCHECHUKWU ONYEMENAM, J.C.A.

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Niger State Minna Judicial Division delivered on 19th February, 2020 by Abdullahi Mikailu J., in SUIT NO: NSHC/MN/31/2016.
The Appellant initiated this suit via Writ of Summons seeking for the following reliefs:
(a) A Declaration that both the Plaintiff and the Defendant are bound by the terms of the Joint Venture Agreement dated 23rd February, 2012.
(b) A Declaration that by the clear provisions of Clause 7.3 and 7.4 of the Joint Venture Agreement between the Plaintiff and the Defendant dated 23rd February, 2012, the Plaintiff is entitled to 5 Percent (5%) of the entire contract price as stipulated in Clause 7.4 of the Agreement.
(c) The sum of One Billion, Two Hundred and Fifty Million Naira only (N1,250,000,000.00) representing five percent (50/0) of the contract sum due to the Plaintiff as clearly specified in Clause 7, Paragraph 7.3 and 7.4 of the agreement between the Plaintiff and the Defendant dated 23rd February, 2012.
(d) Interest on the above amount at the rate of 100/0 per annum from the date of judgment until the entire sum shall be fully liquidated.
(e) Cost of this action.

The fact of the case is that the Appellant and the Niger State Government on 22nd April, 2008, entered into an agreement for the construction of a Five Star Hotel in Minna on a build, operate and transfer basis. The cost of the project was agreed at Twenty Five Billion Naira (N25,000,000,000.00). Pursuant to this agreement, the Appellant and the Respondent on 23rd February, 2012, entered into a Joint Venture Agreement for the Respondent to undertake the construction of the Five Star Hotel for the Niger State Government on clearly agreed terms and conditions as specified in the Joint Venture Agreement, with the Appellant as the Employer and the Respondent as the Developer. The Joint Venture Agreement purportedly provides that the Developer shall mobilize to site and commence construction works within two weeks of signing of Joint Venture Agreement and the Employer shall within 90 days (Ninety days) upon the execution of this Agreement make available to the Developer a bank guarantee for 8% of the contract value, in the sum of N2,000,000,000.00 (Two Billion Naira Only) from a first tier Nigerian Bank valid for the period of construction. The Developer was to receive all revenue generated from the hotel for the period of the concession and shall pay the Employer 5% (Five Percent) of the agreed contract sum, amounting to N1,250,000,000.00 (One Billion, Two Hundred and Fifty Million Naira Only).

The trial Court entered judgment in favour of the Respondent as follows:
“To that extent, I agree with the submission of the learned Defendant Counsel that the Plaintiff did not make available a Bank Guarantee from first tier Nigerian Bank as agreed by the parties. Even if it is to be taken that the Bank Guarantee (Exhibit B) was made available to the defendant by the Plaintiff, the amount on the Bank Guarantee, N1,464,369,207.64 was not the amount agreed by the parties in clause 7 paragraph 7.1 of Exhibit ‘A’. Paragraph 7.1 provides that the Plaintiff shall make available a Bank Guarantee of N2 BiIlion and not N1,464,369,207.64 as provided in Exhibit ‘B’
In the circumstance, I have no hesitation in holding that the plaintiff did not provide or make available a Bank Guarantee of N2 Billion from a first tier Nigerian as required by clause 7.1 of the Agreement.
Having not performed the terms/obligation under clause 7 paragraph 7.1 of the joint venture Agreement the plaintiff is not entitled to sue for breach of contract and claim 5% percent of the contract sum.
The Court of Appeal in the case of LAGOS STATE GOVERNMENT V. TOLUWASE (2013) 1 NWLR Pt. 1336 Pg. 555 at 580 paras A- b. C-E held thus;
‘A party wishing to enforce a contract must show that he has performed all the terms ought to be performed by him. A party who fails to perform his own obligation under a binding contract to the detriment of the other party is in breach of the contract’
On this reasoning and the ones hereinbefore stated, and having watched the demeanor of all the witnesses as they testified before the Court, I find that the plaintiff has failed to prove its claims against the defendant with the certainty required by law. I accordingly resolve the lone issue in favour of the defendant. The plaintiff’s claims lack merit and same is accordingly dismissed.”

The Appellant dissatisfied with the judgment of the trial Court, approached this Court by a Notice of Appeal filed on 24th April, 2020. Counsel on both sides filed relevant processes as required by the rules of the Court and the appeal was heard on 27th September, 2021.

C. U. Onyeukwu Esq., with W O Akenuwa appeared for the Appellants. They adopted and relied on the Appellant’s brief of argument filed on 14th July, 2020 and the Appellant’s reply brief of argument filed on 25th August, 2020 but deemed properly filed and served on 27th September, 2021. They urged the Court to allow the appeal.

S E Aruwa Esq., appeared for the Respondent, he adopted and relied on the Respondent’s Brief of Argument filed on 14th August, 2020 but deemed properly filed and served on 27th September, 2021 in urging the Court to dismiss the Appeal.

In the Appellant’s brief of argument settled by C. Un Onyeukwu Esq., the Appellant formulated 5 issues for determination as follows:
A. “Whether in view of the decision of the Supreme Court in BUHARI v. INEC (2008) 19 NWLR (PT. 1120) 246, the Lower Court was right in law in refusing to expunge the evidence of DW1 as well as the Exhibits tendered through him on ground of violating Sections 112, 117 (4) of the Evidence Act 2011 (as amended)? (Distilled from GROUNDS ONE TWO).
B. Whether the learned trial Court was right in expunging Exhibit 0 in his Judgment and marking it “rejected” on the ground that it was inadmissible evidence? (Distilled from GROUND THREE).
C. “Having regards to the clear and manifest intention of the parties as embodied in Exhibit A and confirmed by Exhibits F, J, K, Land M read together and the lower Court having correctly held that there was a binding contract between the parties, is the Appellant not entitled to a remedy on the principle of ibi jus ibiremedium.” (Distilled from GROUND FOUR).
D. Whether the lower Court properly considered and evaluated the evidence before it in reaching its conclusion. (Distilled from GROUNDS FIVE AND SEVEN)
E. Was the trial Court right when it failed to pronounce on the issue of whether the Respondent can be allowed in law to benefit from its wrongful act raised as issue 4 in the Appellant’s (Plaintiff’s) final written address at the lower Court.” (Distilled from GROUND SIX)

In the Respondent’s brief of argument, S. E Aruwa Esq., for the Respondent adopted the five issues for determination raised by the Appellant.

I have taken note of the Appellant’s reply brief of argument titled Appellant’s reply on point of law filed on 25th August, 2020 but deemed properly filed and served on 27th September, 2021. I shall in the course of resolving the issues where necessary refer to the said Appellant’s reply brief.

Upon careful examination of the 5 issues raised by the Appellant which same were adopted by the Respondent, I have the view that adopting the said five issues will substantially determine this appeal as the same touches on all the areas of her complaint. I shall therefore determine this appeal on the referred five issues. However, since issues 1 and 2 were argued together while issues 3, 4 and 5 were argued together, I shall resolve them as argued. Howbeit issues 1 and 2 shall be resolved as issues 1 and 2 but issues 3, 4 and 5 as issue 3.

SUBMISSIONS ON ISSUES 1 AND 2
1. Whether in view of the decision of the Supreme Court in BUHARI v. INEC (2008) 19 NWLR (PT. 1120) 246, the lower Court was right in law in refusing to expunge the evidence of DW1 as well as the exhibits tendered through him on ground of violating Sections 112, 117 (4) of the Evidence Act 2011 (as amended).
2. Whether the learned trial Court was right in expunging Exhibit 0 in his judgment and marking it “rejected” on the ground that it was inadmissible evidence?

C. U Onyeukwu Esq., for the Appellant contended that the doctrine of judicial precedent or stare decisis is well embedded and sacrosanct in its binding nature. He relied on DAHIRU V. A.P.C (2017) 4 NWLR (PT. 1555) 218 at Page 240 Paras F-G; P.H.C.N V. OFFOELO (2013) 4 NWLR (PT. 1344) PG. 380 @ 411 Paras D-F.

The learned counsel submitted on the potency of evidence elicited under cross-examination once the Court is satisfied with the veracity of such evidence. He cited STATE v. YAHAYA (2019) 13 NWLR (Pt. 1690) PG 397 @ PG. 433, Paras E-F; 435-436, Paras G-O in submission that the evidence elicited under cross-examination of DW1 to the effect that his deposition was signed in his lawyer’s office failed to comply with Section 112 and 117(4) of the Evidence Act and Section 5 of the Oaths Act and is inadmissible.

He further submitted that a witness statement on oath signed in the chambers of a counsel is null and void and of no effect whatsoever. He submitted that the evidence of the DW1 and all the evidence presented through him should be thrown out. He relied on ALIYU V. BULAKI (2019) LPELR – 46513 (CA), MUHAMMADU BUHARI v. INEC, EROKWU v EROKWU (2016) LPELR -41515 (CA), UDUSEGBE v. SPDC (NIG.) L T D [2008] 9 NWLR (Pt. 1093) Pg. 593; UAC v. MACFOY [1962] AC 152.

C. U. Onyeukwu Esq., further submitted that the trial Court erred in law when he expunged Exhibits O and N at the judgment stage despite having admitted them earlier.

He urged the Court to resolve these issues in favour of the Appellants.

S. E Aruwa Esq., for the Respondent in response submitted that the signing and deposition of a witness statement on oath are two different acts and that the rule governing oral evidence of a witness is a requirement for the adoption of Witness Deposition on Oath. He relied on DUNALIN V. BGL(2016) 18 NWLR (pt. 1544) 262 AT 340-341 PARAS D-E; SECTION 205 – 247 OF THE EVIDENCE ACT, 2011.

The learned counsel submitted that the case of BUHARI V. INEC relied on is distinguishable from the instant case. He relied on FIRST BANK OF NIGERIA PLC v. MUKSAN INTERNATIONAL LIMITED & ANOR (2017) LPELR CA/K/36/2016.

S. E Aruwa Esq., also contended that where a document is wrongly admitted in evidence by a Court, the same Court has the power and jurisdiction to expunge it at the judgment stage since it can only base its judgment on legally admissible evidence and documents. He relied on: NWAOGU V. ATUMA (2013) 11 NWLR (PT. 1364) 111 (SC). The learned counsel submitted that a document need not be marked “without prejudice” to be able to take the benefits conferred under S. 196 of the Evidence Act, 2011. He further submitted that statements made during negotiation is generally not admissible. He cited: ASHIBUOGWU V AG BENDEL STATE (1988) 1 NSCC 439 at 462 Paras. 25 – 39; Mole V. Mole (1951) (CA); Pool V. Pool (1951), Henley V. Henley (1955); S. 26 of the Evidence Act, 2011, FAWEHINMI v NIGERIAN BAR ASSOCIATION & 4 ORS. (1989) ALL NLR 219 at 325. He urged the Court to resolve the issues in favour of the Respondent.

RESOLUTION OF ISSUES 1 AND 2
Herein, the Court is called upon to determine whether the deposition on Oath of the DW1 which he admitted under cross-examination as contained at pages 70 of the Record of Appeal that he signed the same at his lawyer’s office is admissible in law.

Generally, there are three ways through which evidence can be elicited from a witness in a Court proceeding. These can be through his examination-in-chief, cross-examination or re-examination. See SECTION 214 (1), (2) AND (3) OF THE EVIDENCE ACT, 2011.

The essence of this principle of stare decisis is for certainty and orderliness in the administration of justice. See EZE V. UNIJOS (2021) 2 NWLR (PT. 1760) 208 (SC), N.I.W.A V. S.P.D.C.N LTD (2020) 16 NWLR (PT. 1749) 160 (SC); AGHEDO V. ADENOMO (2018) 13 NWLR (PT. 1636) 264 (SC). Therefore, I hold that the trial Court erred in law when it admitted and relied on the deposition on oath of the DW1 not signed before a Commissioner for Oaths and the exhibits tendered through him.

Now from the record of proceedings before this Court, Exhibit “O” as contained at pages 29 to 30 of the Record of Proceedings is the minutes of the meeting between the Appellant and the Respondent in the Alternative Dispute Resolution (ADR). So the question is whether a document such as Exhibit “O” is admissible in evidence. The position of the law as decided in plethora of authorities is that any letter or minute of discussion written in the course of mediation between parties to a dispute is inadmissible in evidence in a subsequent suit between them whether or not such documents were marked “without prejudice”. The Apex Court further expatiated this principle in the case of ASHAKACEM PLC V. A.M. INV. LTD, (2019) 5 NWLR (PT. 1666) 447 (P. 463, PARAS A-E) (SC) Per MARY UKAEGO PETER-ODILI, JSC:
“A letter written in the course of mediation between parties to a dispute is inadmissible in evidence in a subsequent suit between them. The principle is based on the need for the parties to speak freely in their quest for a peaceful resolution of the dispute. The need for free discussion would be seriously prejudiced or impaired if any offer or admission made in the process of the negotiation could be given in evidence and used in support of a party’s case in Court afterwards if the negotiation breaks down. Therefore when the negotiations are reduced in writing they are usually marked “without prejudice ” for the avoidance of doubt and so remain inadmissible against the parties or any of them in the ensuing suit in Court, However, if the words “without prejudice” are not stated in plain language, it does not detract from the fact that the words are implied in the negotiations conducted in documentary form or verbally, In this case, the respondent’s letter dated 2nd March, 2009 was made in the process of reconciliation between the parties. So the Court of Appeal rightly upheld the decision of the trial Court that the document is inadmissible. [Ashibuogwu v. A.-G., Bendel State (1988) 1 NWLR (Pt.”) 138″
See also MAKANJUOLA V STATE (2021) LPELR 54998 (SC).

Since parties are ad idem that Exhibit “O” is the minutes of the meeting held in the course of settlement out of Court and going by the position of the law as stated above, Exhibit “O” is inadmissible. Now, having stated that where evidence has been wrongly admitted, the law is that the evidence must be expunged from the record when the judgment is being considered. It follows therefore that Exhibit “O” being the minutes of the ADR which is inadmissible in law was liable to be expunged, I hold that the trial Court was right to have expunged Exhibit “O”. This issue is resolved in favour of the Respondent. In all, I resolve issue one in favour of the Appellant and issue tin favour of the Respondent.

SUBMISSIONS ON ISSUES 3, 4 AND 5
“Having regards to the clear and manifest intention of the parties as embodied in Exhibit A and confirmed by Exhibits F, J, K, Land M read together and the lower Court having correctly held that there was a binding contract between the parties, Is the Appellant not entitled to a remedy on the principle of ibijus ibiremedium ”
“Whether the lower Court properly considered and evaluated the evidence before it in reaching it’s conclusion”
“Was the trial Court right when it failed to pronounce on the issue of whether the Respondent can be allowed in law to benefit from its wrongful act raised as issue 4 in the Appellant’s (Plaintiff’s) final written address at the lower Court.”

C. U. Onyeukwu Esq., submitted that the reliance on only Clause 7.1 of Exhibit A in dismissing the claim of the Appellant by the trial Court is perverse and occasioned a serious miscarriage of justice to the Appellant. He cited SHELL BP PETROLEUM CO. LTD v. JAM MAL ENGINEERING (NIG) LTD (1974) 4 SC 33 at 72.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<> He further submitted that mobilization to site and commencement of construction works were precursors to the bank guarantee. Hence, the Respondent breached the essential and fundamental term of the agreement by her failure to mobilize to site and this made the issuance of bank guarantee impossible. He relied on the case of PA BISBILDER (NIG.) LTD v. F.B.N LTD (2000) 1 NWLR (PT. 642) PG. 684 at PG-700-701, PARAS H-A.

The learned counsel contended that the learned trial Judge erred in law when he failed to rely on the unchallenged and uncontroverted evidence of the Appellant. He submitted that though time was of the essence of the contract, the parties by their conduct had elected the contract to be a continuing one, thus, waived the default of the Respondent to mobilize to site, therefore, none of the parties could resile from his/her obligation in the contract. He cited UDOM v. E. MICHELETTI & SONS LIMITED (1997) 8 NWLR (Pt. 516) 187.

He further submitted that as much as the Court would not re-write the agreement of parties, where a contract consists of series of documents, the Court has a duty to scrutinize and examine closely all documents related to the contract. Thus, parties who have by words or conduct agreed to alter their agreement are subsequently estopped from complaining about the same. He cited BFI GROUP CORP v. B.P.E (2012) 18 NWLR (PT. 1332) 209 at 235, Paras D-E; 253 Paras A-B, F-G; MEKWUNYE v, W.A.E.C (2020) 6 NWLR (PT. 1719) 1 at 38 Paras C-D, CENTRAL LONDON PROPERTY TRUST LTD v. HIGH TREES HOUSE LTD (1947) K.B 130, NBC v SULEIMAN (2019) 18 NWLR (PT. 1703) PG. 80, OMEGA BANK NIG. PLC v. O.B.C LTD (2005) 8 NWLR (PT. 928) PG. 547 at PG, 574, PARAS H-A; 575 – 576, PARAS H-B; 576 PARAS D-E; EKWUNIFE v WAYNE (WI A) LTD (1989) 5 NWLR (PT. 122) 422 @ 442 Paras D-E, BABA TUNDE v. OSUN STATE COLLEGE OF EDUCATION (2020) 1 NWLR (PT.170S) PG. 344 at PAGE 360-361, PARAS C-F.

C. U. Onyeukwu Esq., contended that a Court is duty bound to pronounce on all issues properly placed before it for determination. He argued that failure to consider issue four of the Appellant by the trial Court occasioned a miscarriage of justice. He cited BRAWAL SHIPPING LTD v. F.I ONWAOIKE CO. LTD (2000)11 NWLR (PT. 678) 387 @ 403 PARAS O-H, IGP v DR. PATRICK IFEANYI UBAH & ORS. (2014) LPELR -23968 (CA), HILLARY FARMS LTD V. M/V MAHTRA (2007) 14 NWLR (PT. 1054) 210.

He submitted that where there is a right, there is a remedy. Most especially, where the Respondent had taken benefit of the Contract. He cited BELLO V AG, OYO STATE (1986) 5 NWLR (PT. 45) 828, BFI GROUP CORP v. B.P.E (supra), OGBEIDE v OSIFO (2007) 3 NWLR (PT. 1022) 423 @ Pg 442-443, Paras H-O.

The learned counsel further submitted that the Respondent cannot be allowed to benefit from their wrongful act without meeting their obligations to the Appellant. He cited ADEDEJI v OBAJIMI (2018) 16 NWLR (PT. 1644) PG. 146 at 169 paras A – C; 176- 177/ PARAS F-O; AP vs. OWODUNNI (1991) 8 NWLR (PT. 210) PG. 391 at 421, ALADE V ALIC (NIG.) LTD (2010) 19 NWLR (PT. 1226) PG 111 at 131, PARA A. He then urged the Court to resolve the issues in favour of the Appellants, set aside the judgment of the trial Court and grant the reliefs in the Appellant’s Amended Writ of Summons.

S. E Aruwa Esq., for the Respondent in response submitted that the Appellant herein in her issue 3 raised fresh issues that were not raised at the trial Court and parties are not allowed to present a case on appeal different from the case presented at the trial Court. He relied on F U. T., MINNA V. OLUTAYO (2018) 7 NWLR (1617) 176 P.194 PARAS. A-B.

It is also the submission of the learned counsel that the remedy for enforcement of contract is not available to a party who fails to perform his own obligation. Therefore, the Appellant who failed to perform his own obligation of providing the Bank Guarantee cannot be allowed to complain about enforcement, as there is nothing in the Bank Guarantee showing that it was issued in favour of the Appellant. See BETA GLASS PLC V. EPACO HOLDING LTD (2011) 4 NWLR (PT. 1237) 223 at 245 C – D, IDUFUEKO V. PFIZER (2014) 12 NWLR (PT. 1420) 96; Section 128(1)(b) and (d) of the Evidence Act, 2011.

S. E Aruwa Esq., contended that Article 16 of Exhibit “A”, that is, the Joint Venture Agreement is quite clear and emphatic on the method or how the same can be amended. He argued therefore, that any other purported amendment outside of the method as agreed by the parties is void. The learned counsel noted that the referred article is clear and unambiguous and must be given its literal meaning. He relied on JUKOK INT’L LTD V. DIAMOND BANK PLC (2015) Vol. 7 WRN 1 Pp. 40 Paras. 30-35.

The learned counsel submitted that Exhibit “A” is predicated on the existence and validity of Exhibit “D”. Exhibit “D” having been formally terminated by the Niger State Government, the performance of Exhibit “A” by either parties is therefore frustrated. He cited DAUDA V L.B.I CO. LTD (2011)5 NWLR (PT. 1241) 411 at 426 Paras, F – G.

He submitted that facts not controverted are deemed admitted. The fact that Exhibit D was terminated is uncontroverted and the same deemed admitted. He relied on TOTAL V. MORKAH (2002) WRN 26 at 42 Lines 35 – 40.

It is also the submission of the learned counsel that the evaluation of evidence entails the consideration of each set of evidence given by the parties, the determination of the credibility of the respective witnesses and the ascription of probative value to evidence evaluated. He cited MOGAJI V. ODOFIN (1978) 3-4 S. C. 65 at 67, ANEKWE V. NWEKE (2014) 34 -WRN 30 Pp. 58 – 59 lines 10 5.

The learned counsel finally submitted that though Courts are bound to pronounce on all issues canvassed before it, there are exceptions to this principle of law. Where an issue is not relevant or crucial to the determination of a case, the Court is not bound to pronounce on it. He relied on OWURU V. ADIGWU (2018) 1 NWLR (Part 1599) 1 Pp. 19-20, paras. H-A, FEDERAL MINISTRY OF HEALTH V. COMET SHIPPING AGENCIES LTD (2009) 9 NWLR (Part 1145) 193, and urged the Court to dismiss the appeal.

RESOLUTION OF ISSUE 3
The age long principle of law is that where there is a right, there is a remedy. This is capsulated in the latin maxim “ubi jus ibi remedium”. See NYAKO V. A.S.H.A (2017) 6 NWLR (PT. 1562) 347 (SC), CIL RISK & Asser MGT. LTD V. EKITI STATE GOVT. (2020) 12 NWLR (PT. 1738) 203 (SC), HARKA AIR SERV. NIG. LTD. V. KEAZOR (2011) 13 NWLR (PT. 1264) 320 (SC). This principle enjoins the Courts to provide a remedy whenever the plaintiff has established a right. Thus, for there to be a remedy, there must exist a proven legal right. Herein, the Appellants are seeking to enforce their contractual rights as provided under clause 7 of Exhibit A. The elementary principle of law is that a party seeking to enforce a contractual agreement must have performed his own obligation under the contract.

In the instant case, the agreement in issue is Exhibit “A” as contained at pages 230 to 241 of the Records of Appeal. Clause 7 of the said Joint Venture Agreement provides for the terms of payment. For the flow of understanding, I shall reproduce the said clause:
7. TERMS OF PAYMENT
7.1 The Employer shall within 90days (Ninety days) upon execution of this agreement, make available to the Developer a Bank Guarantee for 80/0 of the contract value, in the sum of N2,000,000,000.00 (Two-Billion Naira) valid for the period of construction. The Bank Guarantee shall be from a first tier Nigeria bank.
7.2 The developer shall receive all revenue generated from the hotel (the project) for the period of concession.
7.3 The developer shall pay the employer 5% (Five Percent) of the agreed contract sum, amounting to N1,250,000,000.00 (One-Billion, Two-Hundred and Fifty Million Naira).
7.4 The above 5% payment shall be disbursed in the following tranches:
a. First payment shall be 60% amounting to N750,000,000.00 (Seventy-Hundred and Fifty-Million Naira) only payable 30 days upon receipt of Bank guarantee from the employer.
b. Second payment shall be 25% amounting to N312,500,000.00 (Three-Hundred and Twelve Million, Five-Hundred Thousand Naira) only payable 365 days from the date of receipt of Bank Guarantee from the Employer.
c. Final payment shall be 15% amounting to N187,500,000.00 (One-Hundred and Eighty-seven Million, Five-Hundred Thousand Naira) only payable on the structural completion of the project.

From the terms of the contract reproduced above, it is crystal clear that the payment of the 5% of the contractual sum, that is N1,250,000,000.00 is subject to the receipt of a Bank Guarantee from a first tier Nigerian Bank issued in favour of the Appellant in the sum of N2,000,000,000.00 being 8% of the contractual sum within 90 days from the day the contract was executed. The contract was executed on 23rd February, 2012 while the bank guarantee was issued on 18th December, 2012 in favour of a 3rd Party (Niger State Government) and in a sum less than the agreed sum. Even when held that the bank guarantee as issued was pursuant to Exhibit A, although I have not so held, the bank guarantee will still be in breach of the terms of the contract which specifically provided that the bank guarantee shall be provided by the “Employer” (the Appellant) within 90 days of the signing of the contract and it shall be in the sum of 2,000,000,000.00. According to the settled law, for a party in an action for breach of contract to successfully plead that he has suffered a wrong and is entitled to damages or specific performance, he must show that he has not breached any of the terms of the contract, that he has fulfilled his contractual obligations under the terms of the contract. From the facts of the case, the Appellant did not and cannot contend that she fulfilled her obligations in the contract to be entitled in law to enforce the contract she entered with the Respondent. The Appellant had contended that the Respondent failed to mobilize to site within two weeks of the execution of the contract, hence, the reason why the bank guarantee was not provided within 90 days. With reverence to the learned counsel for the Appellant, there is nothing in the agreement subjecting clause 7 of the agreement to the prior performance of any other clause of the agreement. This, therefore cannot be the correct interpretation of the clause as same is clear and unambiguous and must be given its plain and ordinary meaning.

Meanwhile, the learned counsel for the Respondent argued that Exhibit A was frustrated by the termination of Exhibit “D”, that is, the agreement between the Appellant and the Niger State Government upon which Exhibit “A” was predicated. Though the Appellant unequivocally denied this assertion, nevertheless, from the evidence of the PW1, specifically as contained at pages 444 to 445 of the Records of Appeal, it was elicited from the PW1 under cross-examination that for the Appellant to be entitled to the payment under clause 7, it had a duty to provide the Respondent with a bank guarantee to the tune of N2,000,000,000.00 within 90 days from the date of execution of the contract. This evidence is an admission against self-interest which requires no further proof. For a better flow of understanding still, let me reproduce the said evidence of the PW1. The PW1 said and I quote:
“…As the manager of the plaintiff, I read Exhibit A before coming to Court. The plaintiff’s claim of N2 billion is based on Exhibit A. I read Article 7.1 to 7.4 of Exhibit A(terms of payment). By article 7 the plaintiff was supposed to provide to the defendant bank guarantee to the tune of N2 billion to be entitled to payment as stated therein. The plaintiff gave the bank guarantee of zenith bank plc to the defendant on 24/12/12 to the tune of N2 billion. The original copy of the bank guarantee is with the defendant. Exhibit B is the copy of the bank guarantee that I am talking about. N1,464,369,207.54 is written on the Exhibit B. By the opening paragraph of Exhibit B, Zenith bank plc issued Exhibit B on behalf of their customer Niger State Government, I have seen Article 16 of Exhibit A, I admit that I have not shown to the Court any documents signed by the parties to depart from or vary Exhibit A. Exhibit A is the only and entire agreement between the plaintiff and the defendant. I have seen Exhibit C, you are correct to say that it was lawyer Ochai Ogaba who informed me that he had served the defendant with Exhibit C as a manager I am aware that when a document is served on a person, there will be acknowledgment copy. There is nothing on Exhibit C to show that service of Exhibit C was acknowledged by the defendant. Exhibit B was issued on 18/12/12. I have read the statement of defence of the defendant. It was agreed between the Defendant, the plaintiff and Niger State Government to issue the termination of the agreement on 19/11/12 because of the agreement which was between the Plaintiff and the Defendant due to the condition given by the Defendant to the Plaintiff, that was why the letter of termination dated 19/11/12 came about. It is logical that the letter of termination was issued because it was issued before the three parties. It is logical for the state government on 18/12/12 to cause Zenith bank plc to issue bank guarantee in favour of the defendant having terminated the agreement on 19/11/12. The plaintiff is not challenging or contesting the termination of Exhibit D because the State government was in the known of the existence of agreement between the plaintiff and the Defendant in the presence of the state government and that was the termination of Exhibit D was issued…. ”
See pages 443-445 of the records of appeal.

By the analysis of the above evidence of the PW1, it stands to reason that the contention of the Respondent that there is a fresh and subsisting agreement between the Respondent and the Niger State Government in furtherance of which the bank guarantee was issued in favour of Niger state as the employer appears more compelling. Though the said agreement is not before this Court, the evidence of the PW1 as reproduced above has corroborated the assertion.

Also, flowing from the above analysis, there is nothing in the said bank guarantee suggesting that it was issued to the Respondent in favour of the Appellant, rather, it was issued in favour of a 3rd party and in a sum less than was agreed in Exhibit A. This in essence means that the bank guarantee has no nexus with Exhibit A. Therefore, I hold that the Appellant breached the terms of the contract when it failed to provide the Respondent with the bank guarantee within 90 days of the execution of the contract and is therefore not entitled to specific performance of the terms of the contract, having failed to perform his own contractual obligations. Again, for the fact that Exhibit D had been terminated, the Appellant in law no longer has any remedy under Exhibit A (the contract with the Respondent) which is predicated on Exhibit D.

For what I have said above therefore, I answer the issue in favour of the Respondent and against the Appellant.

On whether the Court properly evaluated the evidence before it; evaluation of evidence which is in the sphere of the trial Court is the appraisal of both oral and documentary evidence and the ascription of probative value to the evidence resulting in the finding of facts. See BUHARI V. INEC (2008) 19 NWLR (Pt. 1120) 246 (SC), ELVIS EZEANI V. FEDERAL REPUBLIC OF NIGERIA (2019) LPELR- 46800 (SC).
The evaluation of evidence requires the learned trial Judge examining the whole evidence before him before making his findings. This is done by putting all the legal evidence on an imaginary scale to see which side outweighs the other. See Mogaji V. Odofin (1978) 4 (SC), LAFIA LOCAL GOVERNMENT V. THE EXECUTIVE GOVERNMENT NASARAWA STATE & ORS (2012) LPELR-20602(SC) AND HONOURABLE ESEME EYIBOH V. MR. DAN ABIA & ORS (2012) LPELR – 20607(SC).

On principles that are examined when the evaluation of evidence by a Judge is being challenged, the Supreme Court in MILITARY GOVERNOR OF LAGOS STATE & ORS V. ADEBAYO ADEYIGA & ORS (2012) LPELR-7836(SC) stated thus:

“a. Whether the evidence is admissible.
b. Whether the evidence is relevant.
c. Whether the evidence is credible.
d. Whether the evidence is conclusive.
e. Whether the evidence is more probable than that given by the other party. See Mogaji v. Odofin (1978) 4 SC 91.”

Although the law is well established that the evaluation and the ascription of probative value to evidence adduced by parties is the primary function of a trial Court. See CHIDI EDWIN v. THE STATE (2019) LPELR-46896 (SC), OSUADE ADEYINKA AKINBADE & ANOR v. AYOADE BABATUNDE & ORS (2017) LPELR-43463(SC), generally, where the question of evaluation of evidence is against the non-evaluation or improper evaluation of the evidence, the appellate Court is in as good a position as the trial Court to do its own evaluation except where it involves the credibility of witnesses, in which case the appellate Court cannot do much since it is the trial Court that saw them, heard them and watched their demeanour in Court and so would be in the vantage position to believe or disbelieve the witnesses. See ABBEY MATHEW V. THE STATE (2019) LPELR-46930 (SC), SOGUNRO & ORS V. YEKU & ORS (2017) LPELR-41905(SC), GOYANG KAYILI V. ESLY YILBUK & ORS (2015) LPELR- 24323(SC), ALHAJI MUAZU ALI V. THE STATE (2015) LPELR-24711(SC).

The argument of the Appellant on this issue is that the trial Court did not properly evaluate Exhibit “A” in its judgment. I have taken time to read the judgment of the trial Court as seen at pages 522 to 557. At pages 551 to 557 of the Records of Appeal, the trial Court elaborately evaluated Exhibit “A”. The trial Court went on to evaluate the said Exhibit A alongside the testimony of the PW1 before arriving at its decision. The argument of the learned counsel to the Appellant on this issue is in my view misplaced and cannot be reckoned with. I firmly hold that the trial Court properly and adequately evaluated Exhibit “A” before taking his decision. I answer this issue in favour of the Respondent and against the Appellant.

Then, on whether the trial Court was right when it failed to pronounce on the issue of whether the Respondent can be allowed to benefit from her wrongful act. I stand on the firmed principle of law that a Court is bound to pronounce on all issues presented before it. See TRANSNAV P.N. LTD. V. VELCAN EH.D. LTD. (2020) 7 NWLR (PT. 1723) 293 (SC), UMAR V. GEIDAM (2019) 1 NWLR (PT. 1652) 29 (SC).

A party who has taken benefit of a contract cannot turn around from his contractual undertakings and obligations in a bid to obviate his liabilities. See MATAB OIL & GAS LTD v F.F.S. Ltd (2020) 17 NWLR (Pt.1752) CA. Turning around to challenge a contract which one has benefitted from seems to me like fraud, as parties are bound by their agreement.

From the record of appeal and the judgment of the trial Court in particular as contained in the record of proceedings at pages 522 to 557, the trial Court after the evaluation of the evidence found that the Appellant breached the terms of the contract when it failed to provide the Respondent with the bank guarantee as agreed and made pronouncement on same. I do not therefore agree with the learned counsel for the Appellant that the learned trial Judge failed to make pronouncement on this issue.

I resolve this issue in favour of the Respondent and against the Appellant.

In all, I have resolved issue 1 in favour of the Appellant and issues 2, 3, 4 and 5 wholly against the Appellant and in favour of the Respondent. This means the appeal could be found with little merit on the ground that the trial Court wrongly admitted the deposition on oath of the DW1 which was signed at the counsel’s office in contravention of the provisions of the requisite laws. This would have caused the appeal to this extent to succeed and be allowed except that for substantial justice, the question left for answer is whether the admission of the deposition on oath of the DW1 by the trial Court occasioned a miscarriage of justice to sway the Court to set aside the judgment of the trial Court. To determine this, it is pertinent to decide whether the main relief which is the enforcement of Clause 7 of the Joint Venture Agreement (Exhibit A) can be granted in the absence of the Deposition on oath of the DW1.

From the analysis of the evidence placed before the Court, specifically Exhibit B (bank guarantee) and the evidence of the PW 1 as contained at pages 444 to 445 in particular, the bank guarantee was not issued in favour of the Appellant and the same was issued for a lesser amount. Most importantly, the PW1 admitted in his evidence as reproduced above that it was agreed between the Appellant, the Respondent and the Niger State Government that Exhibit D should be terminated. Consequentially, Exhibit D having been terminated, all parties were discharged of every obligations and bereft of every benefits arising therefrom. The evidence of the PW1 on this note amounts to admission against self-interest, and basically facts admitted need no further proof. This goes with further legal implication that since Exhibit D upon which Exhibit A was predicated had been terminated, Exhibit A became frustrated and unenforceable. The Appellant in the circumstance and by the evidence elicited by the Respondent under cross-examination which evidence is against interest cannot make any claim under Exhibit A. The Appellant lost the right to enforce his right under Exhibit D the moment Exhibit D was determined. All I have said above drives to the fact that with or without the statement on oath of DW1, which I have adjudged was wrongly admitted by the learned trial Judge, the trial Court’s decision would have still been the same. This in a nutshell means that although the admission of Exhibit O is not allowed in law and the same having been wrongfully admitted ought to have been expunged by the trial Court at judgment stage, the wrongful admission of the referred exhibit did not occasion a miscarriage of justice. This is for the fact that had the trial Court rightly expunged Exhibit O at judgment stage, which Exhibit is hereby expunged, he would have still arrived at the same decision based on Exhibit A and the evidence of the PW1. This establishes that the wrongful admission of Exhibit O had no effect on the judgment appealed against. For this reason and the earlier resolutions in this appeal, the appeal fails and is hereby dismissed.

I uphold the decision of the trial Court against the Appellant delivered on 19th February, 2020 in Suit No: NSHC/MN/31/2016 delivered by Abdullahi Mikailu J.
I make no order as to costs.

STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the judgment just delivered by my learned brother UCHECHUKWU ONYEMENAM, JCA.

I am in full agreement with the reasoning and the conclusion that this appeal lacks merit. I too do dismiss the appeal and I abide by the consequential orders made in the lead judgment.

DANLAMI ZAMA SENCHI, J.C.A.: I was in conference of the panel of Justices in this appeal. The lead judgment written and delivered by my learned brother, UCHECHUKWU ONYEMENAM, JCA substantially captured all my views expressed during the conference and I agree with the findings and conclusion reached therein that this appeal lacks merit and it is hereby dismissed. The judgment of the lower Court delivered on the 19th February, 2020 by Abdullahi Mikailu, J., in suit No. NSHC/MN/31/2016 is hereby affirmed. I also make no order as to cost.

Appearances:

C. U. Onyeukwu Esq., with
W. O. Akenuwa Esq. For Appellant(s)

S. E Aruwa Esq., For Respondent(s)