TRIOVERSAL DESIGN ASSOCIATES v. THE COMMISSIONER FOR HEALTH AND HUMAN SERVICES, YOBE STATE & ANOR
(2019)LCN/12675(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of February, 2019
CA/J/87/2016
RATIO
COURT AND PROCEDURE: WHERE AN ISSUE IS RAISED SUO MOTO
“The law on a Court raising an issue suo motu is settled. It is trite that a Court being a Court of facts and law is entitled to raise any issue germane to the resolution of the dispute submitted by the parties for adjudication suo motu in the interest of justice. Sodipo Vs Lemminkainen OY(1986) 1 NWLR (Pt. 15) 220, Ijebu Ode Local Government Vs Adedeji Balogun & Co Ltd (1991) 1 NWLR (Pt 166) 136, Africa Continental Bank Plc Vs Losada (Nig) Ltd (1995) 7 NWLR (Pt 405) 26. Where a Court, however, raises the issue suo motu, it must give the parties an opportunity to address on it before deciding the issue, particularly the party that may suffer some disadvantage or disability by reason of the issue so raised. Okebola Vs Molake (1975) 12 SC 61, Kuti Vs Balogun (1978) 1 SC 53, Graham Vs Esumai (1984) 11 SC 123, Bamgboye Vs Olarewaju (1991) 4 NWLR (Pt 184) 132, Union Bank of Nigeria Plc Vs Awmar Properties Ltd (2018) LPELR 44376(SC).” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
CONTRACT: QUANTUM MERUIT
“The term ‘quantum meruit’ literally means ‘as much as he has earned’ i.e. so much as the party doing the services deserves. It arises where a person has expressly or impliedly requested another to render him a service without specifying any remuneration but the circumstances imply that the service is to be paid for, there is an implied promise to pay on quantum meruit or where the contract is to do certain piece of work for a lump sum and he does only part of the work, he may be able to claim on quantum meruit. Warner & Warner International Vs Federal Housing Authority (1993) 6 NWLR (Pt 298) 148, Ebla Construction Ltd Vs Costain (West Africa) Plc (2011) 6 NWLR (Pt 1242) 110, First Bank of Nigeria Plc Vs Ozokwere (2014) 3 NWLR Pt 1395) 439.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
CIVIL LAW: WHERE PARTIES HAVE AGREED ON FACT
“…it is settled law that in civil proceedings, when parties have in their pleadings agreed on some facts, there is no issue in dispute between them on such agreed matters. When a fact pleaded by the claimant is admitted by the defendant, evidence on the admitted fact is irrelevant and unnecessary. There is no dispute on a fact which is admitted, Onobruchere & Anor Vs Esegine & Anor (1986) 2 SC 385, Bunge Vs Governor, Rivers State (2006) 12 NWLR (Pt 995) 573 at 599-600 B-A, and Akande Vs Adisa(2012) 15 NWLR (Pt 1324) 538.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
WORDS AND INTERPRETATION: MEANING OF ‘ESTIMATED FEES’
“The words ‘estimated fees’ used in the body of the letter suggest that the sum of N23,152,313.93 mentioned therein was not for work already done and completed, but for proposed work to be done. An estimated fee is a forecast of the fee that will be involved in doing a project; an approximation of what something will or might cost, as opposed to actual fee which is real time fee for something already done. As at the time the letter was sent, the bill of quantities and sketches had been done and submitted. The words ‘estimated fees’, without more, indicate that the fee for the completed bill of quantities and sketches did not form part of the sum of N23,152,313.93. This is particularly more so as the letter stated that the ‘estimated fees’ was for ‘all the consultants (Architect, Structural Engineer, Quantity Surveyor, Electrical Engineer and Mechanical Engineer)’ and there was no evidence led that the sketches and bill of quantities were prepared by all these consultants. The detailed calculation based on the government scale of charges referred to in the letter was not tendered along with the letter. Perhaps this would have provided a breakdown of what the estimated fees covered to include the fees payable for the sketches and bill of quantities produced.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
Between
TRIOVERSAL DESIGN ASSOCIATES Appellant(s)
AND
1. THE COMMISSIONER FOR HEALTH AND HUMAN SERVICES, YOBE STATE
2. THE ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, YOBE STATE Respondent(s)
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the High Court of Yobe State delivered by Honorable Justice G. M. Nabaruma in Suit No YDS/DT/HC/03/2013 on the 14th of October, 2015.
The Appellant commenced the action in the lower Court and its claims were for the sum of N17,364,984.69 being professional fees for services rendered, together with interest at the rate of 40% from the 6th of April, 2010 until judgment and thereafter at the rate of 10% until final liquidation of the sum. The case of the Appellant was that by a letter dated the 1st of April, 2010, it was invited by the first Respondent to produce a bill of quantities and sketches for intended works in five government owned hospitals and in the School of Health Technology, Nguru. It was its case that it carried out the instructions and produced and submitted the bill of quantities and sketches to the first Respondent undercover of a letter dated the 6th of May, 2010 and that it put the cost of the intended works at N245,662,201.54 and that from this sum its entitlement for the production of the bill of quantities and sketches and for supervision of the intended works would be N23,152,313.93. It was its case that to its surprise, the first Respondent proceeded to execute the intended works without notification to it and without requesting that it to supervise the works and that the works were completed and have been put to use, and this was without the first Respondent paying it for the production of the bill of quantities and sketches. It was its case that its requests for payments were rebuffed by the Respondents and consequent on which it caused its Solicitors to write a letter of demand for the sum N17,364,984.69, which excluded the fees for supervision of the intended works, and that it forwarded the letter to the first Respondent and that the Respondents failed and neglected to settle the bill.
The Respondents admitted that they invited the Appellant to produce a bill of quantities and sketches for intended works in five government owned hospitals and in the School of Health Technology, Nguru and that the Appellant carried out the instructions and produced and submitted the bill of quantities and sketches to the first Respondent undercover of a letter dated the 6th of May, 2010 wherein it put the cost of the intended works at N245,662,201.54. The Respondents denied that the entitlement of the Appellant for the production of the bill of quantities and sketches and for supervision of the intended works would be N23,152,313.93 and they put the Appellant to the strictest proof thereof and it was their case that the contract for the intended works has not been awarded and that the works had not been carried out and that Appellant was not entitled to any payment. It was their case that they would contend that the action was statute barred by virtue of the provisions of Section 2(a) of the Public Officers Protection Law of Yobe State.
The records of appeal shows that the Respondents constituted the issue of statute bar on a motion paper dated and filed in the lower Court on the 2nd of July, 2013 and that the lower Court took arguments on the motion and dismissed same in a considered Ruling delivered on the 13th of February, 2014. The matter thereafter proceeded to trial and in the course of which the Appellant called one witness and tendered documents in proof of its case and the Respondents too called one witness in proof of their defence. At the conclusion of trial, Counsel to the parties orally addressed the lower Court and in a judgment delivered on the 14th of October, 2015, the lower Court raised the issue of the competence of the writ of summons used to commence the action and it resolved the issue against the Appellant and dismissed the suit for being incompetent.
The Appellant was dissatisfied with the judgment and it caused its Counsel to file a notice of appeal dated the 24th of October, 2015 against it and the notice of appeal containing four grounds of appeal was filed on the 5th of January, 2016. The record of appeal was compiled and transmitted to this Court on the 21st of March, 2016 and the Appellant’s brief of arguments dated the 3rd of March, 2018 was filed on the 5th of March, 2018, sequel an order of extension of time to file the brief of arguments made by this Court on the 26th of February, 2018. The Respondent?s brief of arguments dated the 24th of April, 2018 was filed on the 4th of May, 2018 and it was deemed properly filed and served by the Court on the 30th of October, 2018. The Appellant’s Reply brief of arguments dated the 9th of November, 2018 was filed on the 13th of November, 2018. At the hearing of the appeal, Counsel to the parties adopted and relied on the arguments contained in their respective briefs of arguments as their submissions in the appeal.
Counsel to the Appellant distilled three issues for determination in the appeal and these were:
i. Whether the Judge of the trial Court was right to have raised an issue suo motu and to have based his decision thereon without affording the parties or their Counsel an opportunity to be heard.
ii. Whether the Judge of the trial Court was right to have relied on the endorsement on a writ of summons to have superseded the statement of claim.
iii. Whether the Appellant as plaintiff before the trial Court was entitled to judgment having regard to the evidence on record.
In arguing the first issue for determination, Counsel reproduced the portion of the judgment where the lower Court raised the issue of endorsement of dates on the writ of summons and noted that the lower Court thereafter proceeded to deliberate and make findings on the issue and he reproduced the conclusion of the lower Court that the issue rendered the action incompetent and the lower Court thus dismissed the suit. Counsel stated that neither of the parties raised the issue of the endorsement of dates on the writ of summons and that the issue was raised suo motu by the lower Court and that the records showed that the parties were not given an opportunity by the lower Court to address on the issue before it concluded thereon. Counsel stated that this was wrong, particularly more so as the lower Court relied on and based its judgment dismissing the suit as incompetent on the issue so raised and he referred to the cases of Ojukwu Vs Yar?Adua (2009) All FWLR (Pt 482) 1065, Victino Fixed Odds Ltd Vs Ojo (2010) All FWLR (Pt 524) 25, and Nsiegbe Vs Mgbemena (2007) 4 SCNJ 359, amongst others. Counsel conceded that there were instances where a Court could raise an issue suo motu and decide same without hearing the parties, but stated that the issue must be one of law or jurisdiction, and not one of facts and he referred to the cases ofEffiom Vs C.R.O.S.I.E.C. (2010) All FWLR (Pt. 552) 1610 and Uzoho Vs N. C. P. (2007) All FWLR (Pt 394) 370. Counsel stated that the issue raised and decided by the lower Court in the instance case concerned endorsements made on the writ of summons by the Registrar of the High Court and that this was an issue of fact. Counsel urged the Court to resolve the first issue for determination in favour of the Appellant.
On the second issue for determination, Counsel stated that the lower Court observed in the judgment that the writ of summons was dated the 9th of May, 2013 while the endorsement of the Registrar on the writ and the receipt endorsing payment of the filing fees for the suit showed that the writ of summons was filed on the 8th of May, 2013, and wondered how the writ of summons dated on the 9th of May, 2013 was filed on the 8th of May, 2013. Counsel stated that a careful study of the records of appeal shows that the writ of summons along with the statement of claim were tendered for filing at the Registry of the lower Court on the 6th of May, 2013 and that it was the Registrar that wrongly dated the writ of summons as filed on the 9th of May, 2013 and not the Appellant or his Counsel and that the duty of assessing and dating a writ of summons before it is issued is that of the Registrar of Court and he referred to the case of Igwe & Sons (Nig) Ltd Vs Onwuzor (2007) 4 NWLR (Pt 1024) 303.
Counsel stated that had the lower Court drawn the attention of the parties to the alleged contradiction in the dates of filing of the writ of summons, they would have clarified same and that the law is that the parties are not to be made to suffer for blunders and errors committed by officials of the Registry of the Court and he referred to the case of Famfa Oil Ltd Vs A. G. Federation (2003) 18 NWLR (Pt 852) 453. Counsel stated that the endorsements on the statement of claim, filed along with the writ of summons, show clearly that it was on the 6th of May, 2013 that the processes were presented for filing in the Registry of the lower Court and that the lower Court ought to have relied on those endorsements to resolve the supposed contradiction because the endorsement on the statement of claim supersedes those on the writ of summons and he referred to the case of Eya Vs Olopade (2011) 5 SCNJ 98. Counsel urged the Court to resolve the second issue for determination in favour of the Appellant.
In arguing the third issue for determination, Counsel traversed through the case made out by the Appellants on the pleadings in the lower Court and the response of the Respondents thereto and he noted that the burden of proof was on the Appellant to prove its case and that the issue before the lower Court was whether there was a contract between the parties on the preparation of the bill of quantities and sketches done by the Appellant. Counsel stated that the duty of the Court in such cases is to effect the intention of the parties from the surrounding circumstances and correspondences exchanged between them and that applying these indices to the facts of the present case, it is clear that there was a contract between the Appellant and the first Respondent and he referred to the cases of Omega Bank Plc Vs OBC (2005) 8 NWLR (Pt 928) 547 and Standard (Nig) Engr. Co Ltd Vs Nigerian Bank for Commerce and Industries (2006) All FWLR (Pt 316) 255. Counsel stated that the Appellant showed before the lower Court that it had done all that was necessary on its obligations on the contract and he referred to the case of FGN Vs Zebra Energy Ltd (2002) 3 NWLR (Pt 754) 471. Court stated that the Court was empowered by Section 15 of the Court of Appeal to enter judgment on the claims in favour of the Appellant after setting aside the judgment entered by the lower Court and he urged the Court to exercise the power in the instant case and he referred to the case of Ado Ibrahim & Co Ltd Vs Bendel Cement Co Ltd (2007) 4 SCNJ 10. Counsel urged the Court to resolve the issue for determination in favour of the Appellant.
Counsel concluded his arguments by praying the Court to find merit in the appeal and to allow same, set aside the judgment of the lower Court and to enter judgment for the Appellant in the terms of the claims before the lower Court.
Counsel to the Respondents adopted the three issues for determination formulated by the Counsel to the Appellant. Counsel argued the first and second issues for determination together and he conceded that the lower Court raised the issue of the date of the writ of summons suo motu but stated that it was a very fundamental issue which went to root of the matter and affected the jurisdiction of the lower Court to hear and determine the matter and that the lower Court was entitled to raise it suo motu and to decide it solely without hearing the parties. Counsel stated that the competence of the writ of summons was the pillar upon which the whole proceedings in the lower Court stood and that the incompetence of the writ rendered the entire proceedings a nullity and he referred to the cases of Braithwaite Vs Skye Bank Plc (2012) LPELR 15532(SC) and Wilson Obioha & Sons Ltd Vs Inamsco Multi Concepts Ltd (2017) LPELR 42332(CA). Counsel stated that the general rule that a Court cannot raise an issue suo motu and decide same without hearing the parties has exceptions and one of which is where the issue raised is a fundamental one of jurisdiction, such as where the writ of summons is incompetent and he referred to the cases of Gbagbarigha Vs Toruemi (2013) 6 NWLR (Pt 1350) 289 and Sule Vs Police Service Commission (2016) LPELR 41226(CA). Counsel urged the Court to resolve the first and second issues for determination in favour of the Respondents.
On the third issue for determination, Counsel stated that the issue cannot arise as the base upon which the Appellant erected his case, the writ of summons, was declared incompetent and that you cannot put something on nothing and expect it to stand and that the whole case is a nullity. Counsel stated that assuming the writ of summons was competent, the Appellant failed to establish that its claim was borne out of a valid contract or agreement between it and the Respondents. Counsel stated that the agreement that the Appellant claimed to have existed was a mere invitation given by the first Respondent to the Appellant to make assessment subject to further consideration and that the assessment was to form the basis for a formal contract and which formal contract was not entered into. Counsel referred to the cases of Bilante International Ltd Vs Nigeria Deposit Insurance Corporation (2011) LPELR 781(SC) and Okugbule Vs Oyagbola (1990) 4 NWLR (Pt 147) 723 on the ingredients of a valid contract and stated that those ingredients were missing in the transaction between the Appellant and the Respondents. Counsel urged the Court to resolve the third issue for determination in favour of the Respondents.
Counsel concluded his arguments by praying the Court to find no merit in the appeal and to dismiss same and affirm the judgment of the lower Court and/or dismiss the claims of the Appellant before the lower Court.
In deliberating on the case of the parties, the lower Court observed in the judgment thus:
‘It is noticed that the writ of summons in this case was dated 9th of May, 2013 and the suit, from the endorsement of the registrar on the writ and the receipt endorsing payment of filing fees for this suit, was filed on 8th May, 2013. This means that the suit was filed before the writ of summons was made by the plaintiff or its Counsel. In other words, the filing of the action predates the making of the writ of summons.’
Based on the observation, the lower Court proceeded to formulate an issue for determination in the matter which was not raised and/or formulated by the parties. The issue read thus:
‘Whether as a consequence of the filing of the action predating the creation of the writ of summons this suit was properly initiated.’
The lower Court, without giving the parties the opportunity to address it on the issue for determination so formulated, proceeded to resolve the issue thus:
‘On the first issue for determination, we refer to the provision of S. 157 of the Evidence Act 2011 which compels us to presume that every document is made on the day it bears. The filing of the suit before the writ was made implies that the endorsements on the writ relating to the Judicial Division in which the action was instituted, names of the parties and their addresses for service of Court processes, summary of the relief or remedy sought by the plaintiff and the date of the writ, were non-existent on the date the suit was filed. And by Order 5 Rule 2 of the Rules of this Court, every writ of summons must contain, inter alia, the date on which it is made.’
The presumption on the date on the document is, however, rebuttable by evidence but no attempt was made by the plaintiff, who created the writ of summons to rebut the presumption and the Court only became aware of the fact that the filing of the suit predates the writ of summons after the final addresses of counsel were delivered.
In any event, the issue of date is very fundamental to the validity of documents that an undated document is said to be invalid and every document is presumed to have been made on the date written on them.
We went to this length to see if there is any justification for the Court to proceed to resolve the issues in contention in view of findings that date is essential to the validity of any document and that every document is by the provisions of S. 157 of the Evidence Act and extant authorities presumed to have been made on the date it bears. This is a legal which, we believe, the Court can raise suo motu.
The findings of this Court are that the suit was filed on the 8th of May, 2013 before the writ of summons in the case came to life the following day, 9th of May, 2013. This is like the absurdity of a man who claims to be older than his mother. Procedurally, you cannot file a writ of summons before it is born. In sum the writ of summons was wrongly issued because it was filed in contravention of due process. This action is therefore, commenced through a process that is alien to our laws and rules of procedure and to allow it to subsist is to encourage a situation where people are given the opportunity to file an action and provide the writ of summons containing the cause of action and other essential requirement for the action later or in anticipation of an event which would happen in the future.
This action is, for reasons stated, incompetent because it was commenced through undue process. The suit is accordingly dismissed.
In other words, the lower Court, in the recess of its Chambers, formulated suo motu an issue for determination from its observations of the endorsements of the dates on the writ of summons, an issue that was not contemplated, raised or canvassed by the parties, and it proceeded to consider and resolve the issue without giving the parties an opportunity to address it thereon and it dismissed the case of the Appellant on the basis of that issue for determination.
The law on a Court raising an issue suo motu is settled. It is trite that a Court being a Court of facts and law is entitled to raise any issue germane to the resolution of the dispute submitted by the parties for adjudication suo motu in the interest of justice. Sodipo Vs Lemminkainen OY(1986) 1 NWLR (Pt. 15) 220, Ijebu Ode Local Government Vs Adedeji Balogun & Co Ltd (1991) 1 NWLR (Pt 166) 136, Africa Continental Bank Plc Vs Losada (Nig) Ltd (1995) 7 NWLR (Pt 405) 26. Where a Court, however, raises the issue suo motu, it must give the parties an opportunity to address on it before deciding the issue, particularly the party that may suffer some disadvantage or disability by reason of the issue so raised. Okebola Vs Molake (1975) 12 SC 61, Kuti Vs Balogun (1978) 1 SC 53, Graham Vs Esumai (1984) 11 SC 123, Bamgboye Vs Olarewaju (1991) 4 NWLR (Pt 184) 132, Union Bank of Nigeria Plc Vs Awmar Properties Ltd (2018) LPELR 44376(SC).
Where the Court denies the parties the opportunity to address on the issue before deciding same and the issue is not an irrelevant one, but the resolution of which has a substantial and direct effect on its final decision, the Court will be held to have compromised the right of the parties to fair hearing and the judgment is liable to be set aside as having occasioned a miscarriage of justice. Shitta-Bey Vs Federal Public Service Commission supra, Ebba Vs Ogodo (1984) SCNLR 372, Saude Vs Abdullahi supra, Nwokoro Vs Onuma (1990) 3 NWLR (Pt 136) 22, Kraus Thompson Organization Ltd Vs University of Calabar (2004) 9 NWLR (Pt 879) 631,Total Engineering Services Team Inc Vs Chevron Nigeria Ltd(2017) 11 NWLR (Pt 1576) 187, Wagbatsoma Vs Federal Republic of Nigeria (2018) LPELR 43722(SC).
It is alarming, shocking and very worrying that the lower Court, at that level, is ignorant of these basic rules and rudimentary principles of judicial adjudication. Counsel to the Respondents sought in this appeal to defend the faux pas committed by the lower Court by suggesting that the issue raised by the lower Court was an issue of jurisdiction and that Courts are allowed to raise such issues suo motu and to decide them without hearing the parties. This defence, with respect to Counsel, is puerile and asinine and shows a lack of understanding of what constitutes an issue of jurisdiction in a matter. The issue raised by the lower Court was not based on law or any statutory provision, but on its observations of the endorsements on the writ of summons, which is purely an issue of fact. The lower Court itself admitted the point when it noted in the judgment that the issue it cooked up merely raised a presumption which was rebuttable by evidence. You do not rebut issues of law or jurisdiction by evidence.
It is only issues of fact that are rebuttable by evidence and issues of fact cannot be raised and resolved suo motu, under any guise, without giving the parties an opportunity to be heard. Peters Vs The State (1992) NWLR (Pt 265) 323, Effiom Vs Cross River State Independent Electoral Commission (2010) 14 NWLR (Pt 1213) 106.
The actions of the lower Court in raising the issue of the endorsement of dates on the writ of summons suo motu and in deciding same without calling the parties to address it on it and in dismissing the claims of the Appellant solely on the basis of the issue amounted to judicial impunity and it rendered the judgment of the lower Court a nullity. Adigun Vs Attorney General, Oyo State (1987) 1 NWLR (Pt 53) 678, Nteogwuile Vs Otuo (2001) 16 NWLR (Pt 738) 58, Dairo Vs Union Bank of Nigeria Plc (2007) 16 NWLR (Pt 1059) 99. The judgment of the lower Court is liable to be set aside.
As stated earlier, trial had been concluded in this matter and Counsel to the parties had rendered their final addresses and that it was in the course of writing the final judgment that the lower Court raised and resolved the issue of endorsements of dates on the writ of summons suo motu. This Court must say that it is bewildered that after raising and resolving the issue suo motu, the lower Court failed to go further to render a judgment on the merits of the completed trial before it. The higher Courts have warned severally that where a Court is not the highest Court in the judiciary hierarchy, it is wrong for it to determine a matter on the strength of one of the issues canvassed before it by the parties, and to leave the other issues unresolved. It is incumbent on such a Court to, after resolving that issue, even if it is an issue jurisdiction, proceed to resolve all the other issues, so that where the higher Court disagrees with its decision on the issue, as in the instant case, it would have before it the benefit of the opinion of the Court on the other issues. Stowe Vs Ben-Stowe (2012) 9 NWLR (Pt 1306) 450 National Union of Road Transport Workers Vs Road Transport Employers Association of Nigeria (2012) 10 NWLR (Pt 1307) 170, University of Calabar Vs Akintunde (2013) 3 NWLR (Pt 1340) 1, Angadi Vs Peoples Democratic Party (2018) LPELR 44375(SC).
Counsel to the Appellant has implored that should this Court find that the lower Court was wrong in the manner it raised and resolved the issue of the endorsements of dates on the writ of summons suo motu, it should proceed to exercise its powers under Section 15 of the Court of Appeal Act to consider the merits of its case before the lower Court to enter the appropriate judgment the lower Court would have entered. It is correct that this Court is empowered by the provisions in Section 15 of the Court of Appeal Act, 2004 to make any order necessary for determining the real question in controversy in an appeal and to, in doing so, generally exercise full jurisdiction over the whole proceedings as if the proceedings had been instituted in this Court as Court of first instance and may rehear the case in whole or in part. It is however, not a power that this Court can exercise as it desires. Certain conditions must exist for the power to come into play and these are:
i. that the High Court or trial Court must have had the legal power to adjudicate in the matter before the appellate Court can entertain it;
ii. that the real issue raised by the claim of the appellant at the High Court or trial Court must be capable of being distilled from the grounds of appeal;
iii. that all necessary materials to determine the matter must be available to the Court for consideration;
iv. that the need for expeditious disposal of the case to meet the ends of justice must be apparent on the face of the material presented and, in this wise, the length of time between the disposal of the action at the trial Court and the hearing of the appeal is a factor; and
v. that the injustice or hardship that will follow if the case is remitted to the Court below must be clearly manifest.
See the cases of Inakoju Vs Adeleke (2007) 4 NWLR (Pt 1025) 423, Amaechi Vs Independent National Electoral Commission (2008) 5 NWLR (Pt 1080) 227, Ezeigwe Vs Nwawulu (2010) 4 NWLR (Pt 1183) 159 and Onyero Vs Nwadike (2011) 18 NWLR (Pt 1279) 954.
It is not in contest that the lower Court possessed the requisite jurisdiction to entertain the claims of the Appellant and the claims of the Appellant are obvious from the records of appeal.
The entire evidence led before the lower Court, both oral and documentary, are before this Court and the case, commenced in May 2013, has already spent almost six years in the Court system without a final determination of the rights of the parties. It will be most unfair and unjust, in the circumstances, for this Court to remit the case to the lower Court for commencement of trial de novo. This is a proper case for this Court to exercise its powers under Section 15 of the Court of Appeal Act.
The claim of the Appellant before the lower Court was for the sum of N17,364,984.69 being professional fees for services rendered, together with interest on the said sum from April, 2010 till liquidation. The starting point of the consideration of the case of the parties must be their respective pleadings. The case of the Appellant on the pleadings was that sequel to the invitation of the first Respondent it produced and submitted bill of quantities and sketches for intended works in five government owned hospitals and in the School of Health Technology, Nguru to the first Respondent undercover of a letter dated the 6th of May, 2010 and that it put the cost of the intended works at N245,662,201.54 and that from this sum its entitlement for the production of the bill of quantities and sketches and for supervision of the intended works would be N23,152,313.93. It was its case that the first Respondent proceeded to execute the intended works without notifying and without engaging it to supervise the works and without paying for the production of the bill of quantities and sketches. It was its case that its requests for payments were rebuffed by the Respondent and consequent on which it caused its Solicitors to write a letter demanding for the sum N17,364,984.69, which excluded the fees for supervision of the intended works, and that it forwarded the letter to the first Respondent and that the Respondents failed and neglected to settle the bill.
The Respondents admitted that based on their invitation, the Appellant produced and submitted bill of quantities and sketches for intended works in five government owned hospitals and in the School of Health Technology, Nguru undercover of a letter dated the 6th of May, 2010 wherein it put the cost of the intended works at N245,662,201.54. The Respondents denied that the entitlement of the Appellant for the production of the bill of quantities and sketches and for supervision of the intended works would be N23,152,313.93 and they put the Appellant to the strictest proof thereof. It was their case that the contract for the intended works has not been awarded and that the works had not been carried out and that the Appellant was not entitled to payment for the production of the bill of quantities and sketches alone, as the contract was not awarded.
Now, it is settled law that in civil proceedings, when parties have in their pleadings agreed on some facts, there is no issue in dispute between them on such agreed matters. When a fact pleaded by the claimant is admitted by the defendant, evidence on the admitted fact is irrelevant and unnecessary. There is no dispute on a fact which is admitted, Onobruchere & Anor Vs Esegine & Anor (1986) 2 SC 385, Bunge Vs Governor, Rivers State (2006) 12 NWLR (Pt 995) 573 at 599-600 B-A, and Akande Vs Adisa(2012) 15 NWLR (Pt 1324) 538. From the state of the pleadings of the parties, it was not in dispute that the Respondents invited the Appellant to produce and submit bill of quantities and sketches for intended works in five government owned hospitals and in the School of Health Technology, Nguru. It was also not in dispute that the Appellant produced and submitted the bill of quantities and sketches to the first Respondent undercover of a letter dated the 6th of May, 2010 and that it put the cost of the intended works at N245,662,201.54.
The dispute in this matter, from the pleadings, was whether, from the quoted sum for the intended works, the Appellant was entitled to payment for the production of the bill of quantities and sketches alone and whether that payment, in the circumstances of this case, is the sum N17,364,984.69. The onus was on the Appellant to prove these facts. The legal burden of proof in a civil case is always on a claimant to prove to the satisfaction of the Court the assertions made in the pleadings of the contentions upon which he meets his case and he has the onus of proving his case by preponderance of evidence. The failure of the defendant to prove or his refusal to testify cannot alleviate the primary burden on the claimant ? Umeojiako Vs Ezenamuo (1990) 1 NWLR (Pt 126) 253, Ogunyade Vs Oshunkeye (2007) 15 NWLR (Pt 1057) 218, Oyeneyin Vs Akinkugbe (2010) 4 NWLR (Pt 1184) 265.
The Appellant called one witness in proof of its case. The witness tendered the letter by which the Appellant was invited to undertake the works as Exhibit A and testified that upon the submission of the bill of quantities and sketches, they requested for their professional fees and he tendered the letter of request as Exhibit D. The witness gave evidence that the first Respondent promised to pay the fees but that they were not paid and that after a while they caused their Counsel to write a letter of demand and the letter of demand was tendered as Exhibits E1 and E2. The witness stated that in Exhibit D they demanded for the sum of N23,152,313.93 while in Exhibits E1 and E2 they demanded for the sum of N17,364,984.69 because they had discussions with the first Respondent who told them to do the pre-contract and post-contract works together, but later they were disengaged from the post-contract work and so they demanded for the pre-contract works. Under cross-examination, the witness stated that the promises made to pay them by the first Respondent were verbal and that they used scale of charges by the Federal Government for the fees.
Now, Exhibit A, the letter of invitation read thus:
LETTER OF INVITATION
“With reference to the aforementioned subject, I am directed to write and invite your company to the Ministry with regard to the production of sketches and bills of quantities for the construction/renovation of following health facilities in the State, thus:
i. General Hospital Buni Yadi
ii. General Hospital Fika
iii. General Hospital Potiskum
iv. General Hospital Gusau
v. Specialist Hospital Damaturu
vi. Drawing and BQ for the construction of male and female hostel, 2 Nos lecture hall School of Health Technology Nguru
You are to report to the office of DPRS of the Ministry on 6-4-2010 at 12.00pm for discussion.”
The Appellant witness gave evidence that they had oral discussions with the first Respondent who told them to do the pre-contract works of preparing the sketches and the bill of quantities and post-contract works of supervision of the construction together and that the first Respondent assured them that will be paid for the works. The witness stated that they were disengaged from the post-contract work and so they demanded for payment for the pre-contract works. The evidence of the witness was not discredited or disparaged under cross-examination and it was not challenged or countermanded by any contrary evidence by the Respondents. The sole defence witness admitted that the Appellant was indeed engaged by the Respondents to carry out the pre-contract works. The logical inference deducible from the evidence is that there was an agreement between the parties that the Appellant will be paid for the production of the sketches and bill of quantities.
This takes us to the second question, whether the Appellant led evidence to prove that the sum of N17,364,984.69 claimed is the sum due to it for the preparation of the sketches and bill of quantities. The evidence of the Appellant?s witness was that when they submitted the sketches and bill of quantities, they sent in bill for professional charges, Exhibit D, wherein they made a request for their professional fees in the sum of N23,152,313.93.
It was the case of the Appellant that this sum included payment for supervision of the contract works and that when they were not engaged for the contract works, they caused their Counsel to send a letter of demand by Exhibits E1 to E2 for a reduced sum of N17,364,984.69 for the sketches and bill of quantities.
Now, Exhibit D reads thus:
‘SCALE OF FEES FOR CONSULTANTS FOR THE PRODUCTION OF SKETCHES AND BILLS OF QUANTITIES FOR THE FACILITIES INCLUDES: GENERAL HOSPITAL BUNI-YADI, GENERAL HOSPITAL FIKA, GENERAL HOSPITAL POTISKUM, GENERAL HOSPITAL GASHUA, SPECIALIST HOSPITAL DAMATURU AND HEALTH TECHNOLOGY NGURU YOBE STATE
Having submitted the relevant work drawings and bill of quantities for the above mentioned works and project cost of N245,662,201.54, we write to inform you that the estimated fees for all the consultants (Architect, Structural Engineer, Quantity Surveyor, Electrical Engineer and Mechanical Engineer) would be N23,152,313.93.
Please find copies of detail calculation based on Federal Government scale of fees.
We look forward to receiving early settlement of this claim. (bold and underlining for emphasis)
The words ‘estimated fees’ used in the body of the letter suggest that the sum of N23,152,313.93 mentioned therein was not for work already done and completed, but for proposed work to be done. An estimated fee is a forecast of the fee that will be involved in doing a project; an approximation of what something will or might cost, as opposed to actual fee which is real time fee for something already done. As at the time the letter was sent, the bill of quantities and sketches had been done and submitted. The words ‘estimated fees’, without more, indicate that the fee for the completed bill of quantities and sketches did not form part of the sum of N23,152,313.93. This is particularly more so as the letter stated that the ‘estimated fees’ was for ‘all the consultants (Architect, Structural Engineer, Quantity Surveyor, Electrical Engineer and Mechanical Engineer)’ and there was no evidence led that the sketches and bill of quantities were prepared by all these consultants. The detailed calculation based on the government scale of charges referred to in the letter was not tendered along with the letter. Perhaps this would have provided a breakdown of what the estimated fees covered to include the fees payable for the sketches and bill of quantities produced.
Exhibit E1 to E2 read thus:
Re: FORMAL DEMAND FOR THE PAYMENT OF THE SUM OF N17,364,984.69
We are counsel to Trioversal Design Associates ? We are briefed that you consulted our clients to submit architectural, structural, quantity surveying, electrical and mechanical estimates to enable you renovate and construct General Hospitals in Buni Yadi, Fika, Potiskum, Gasha and Damaturu including the lecture hall of the School of Health Technology Nguru, in your letter dated 1st April, 2010.
Our client promptly complied by forwarding all the necessary details required using their professional skills as consultants and professionals.
Our clients equally submitted their bill of charges in accordance with the Federal Government scale of charges in a letter dated 6th of May, 2010.
Suffice it to say, the referred bill of charges includes stage three of the work which is the actual supervision of the construction.
Regrettably, you proceeded to execute the contract without involving our clients.
We now formally demand the immediate payment of the aforesaid sum of money through this office within 30 days.
The amounts represent 2/3 of the sum of N23,152,313.93.
Now, what was agreed by the parties on the pleadings was that the Respondents invited the Appellant to produce and submit sketches and bill of quantities for intended works and that this was what the Appellant did. Exhibits E1 to E2 spoke about ?submit architectural, structural, quantity surveying, electrical and mechanical estimates? and no evidence was led to show that this was the same thing as the sketches and bill of quantities. Exhibits E1 to E2 were predicated on Exhibit D which referred to ?estimated fees? and was not a bill of actual charges. Exhibits E1 to E2 stated that Exhibit D included stage three of the work which is the actual supervision of construction. The letter tendered as Exhibit D did not break down the intended works into stages and did not say anything about a stage three of the work. There is a disconnection between Exhibit D and Exhibits E1 to E2.
The Appellant did not tender the Government Scale of Charges referred to in Exhibit D, Exhibits E1 to E2 and by their witness in his evidence neither did Appellant refer the Court to the statute that contained the scale of charges to enable this Court see whether it includes scale of fees payable for sketches and bill of quantities.
The Appellant did not lead sufficient evidence to establish that it was entitled to the sum of N17,364,984.69 as the fee for the production of the sketches and bill of quantities. This, ordinarily, should not be the end of the matter. This Court had found that the Appellant was engaged by the Respondents to prepare sketches and bill of quantities for intended contract works and that there was an understanding that the Appellant would be paid for them and that the Appellant did produce and submit the sketches and bill of quantities to the Respondents. The failure of the Appellant to prove that the sum of N17,364,984.69 claimed is the actual sum due to it for the job should not deny the Appellant payment for the services rendered. The law is that, in such circumstances, the Appellant should be compensated on a quantum meruit basis. Aburime Vs Nigerian Ports Authority (1978) 4 SC 111, Oyo Vs Mercantile Bank (Nig) Ltd (1989) 3 NWLR (Pt 108) 213.
The term ‘quantum meruit’ literally means ‘as much as he has earned’ i.e. so much as the party doing the services deserves. It arises where a person has expressly or impliedly requested another to render him a service without specifying any remuneration but the circumstances imply that the service is to be paid for, there is an implied promise to pay on quantum meruit or where the contract is to do certain piece of work for a lump sum and he does only part of the work, he may be able to claim on quantum meruit. Warner & Warner International Vs Federal Housing Authority (1993) 6 NWLR (Pt 298) 148, Ebla Construction Ltd Vs Costain (West Africa) Plc (2011) 6 NWLR (Pt 1242) 110, First Bank of Nigeria Plc Vs Ozokwere (2014) 3 NWLR Pt 1395) 439. In awarding a sum as compensation, the Court is expected to give an amount which it considers to be reasonable compensation for services rendered by Appellant for the benefit of the Respondent. In doing this, the Court must guide itself by the pleadings of the Appellant on the services rendered and the evidence led in proof of the services. In Savannah Bank of Nigeria Plc Vs Opanubi (2004) 15 NWLR (Pt 896) 437, Uwaifo, JSC at page 458 made the point that:
In compensating a legal practitioner upon a quantum meruit for services he has actually rendered, it will be more realistic to make assessment on the basis of the particulars of the nature of work done by him to arrive at what can be considered a reasonable compensation. It is then a sum which ?the Judge appears to have arrived at on consideration of all necessary factors would be a reasonable remuneration in all the circumstances.
In the instant case, the Appellant, apart from making a general statement that it prepared sketches and bill of quantities, did not give clear particulars of the steps it took in the production of the sketches and bill of quantities either in its pleadings and/or in a bill of charges or even in the oral evidence of the witness. The Appellant did not also tender the sketches and bill of quantities in evidence to enable the Court assess the quality of work done and determine the deserved payment under the principle of quantum meruit. This Court is thus handicapped in exercising its discretion to award compensation to the Appellant under the principle of quantum meruit.
It is settled law that in civil suits, cases are won upon a preponderance of evidence. It follows therefore that a claimant in such a case has the burden of establishing his claim upon relevant and credible evidence that is conclusive and that commands such probability that is in keeping with the surrounding circumstances of the case in hand. Onwuka Vs Ediala (1989) 1 NWLR (Pt 96) 182, Dibiamaka Vs Osakwe (1989) 3 NWLR (Pt 107) 101 at 113, Egwa Vs Egwa (2007) 1 NWLR (Pt 1014) 71. This was explained by Omosun, JCA in Igwe Vs Alozieuwa (1990) 3 NWLR (Pt 141) 735 at page 751 thus:
‘It is not enough for a party to a case who has the onus of establishing a particular fact to say that his own evidence is just as good as that of his opponent. What the law says he must do to discharge the onus of proof on him is to prove by evidence which convinces the Court or Tribunal of the probability of his case rather than that of the opponent on the point in issue .’
The Appellant did not lead sufficient evidence to discharge its onus of proof in this matter. Its claims must thus fail and be dismissed.
In conclusion, this Court finds merit in the appeal and it is hereby allowed. The judgment of the High Court of Yobe State delivered by Honorable Justice G. M. Nabaruma in Suit No YDS/DT/HC/03/2013 on the 14th of October, 2015 dismissing the claims of the Appellant on the ground of the incompetence of the writ of summons is hereby set aside. In its stead is entered a judgment dismissing the claims of the Appellant on the ground of lack of sufficient evidence to sustain the claims. Each party shall bear its costs of the appeal. These shall be the orders of the Court.
ADZIRA GANA MSHELIA, J.C.A.: I read before now the Lead Judgment of my learned brother Abiru, J.C.A just delivered. I completely agree with his reasoning and conclusion arrived thereat. My learned brother had adequately considered and resolved the issues raised for determination in this appeal. I have nothing useful to add but adopt same as mine. I too find merit in the appeal and same is allowed. I abide by the consequential orders contained in the lead Judgment inclusive of costs.
UCHECHUKWU ONYEMENAM, J.C.A.: I have read in draft copy the judgment just delivered by my learned brother HABEEB ADEWALE OLUMUYIWA ABIRU, JCA. I agree with the conclusion arrived thereat in allowing the appeal. I also set aside the judgment of the High Court of Yabe State delivered on 14th October, 2015 by G.M. Nabaruma, J. in Suit No. YDS/DT/HC/03/2013.
I abide by the consequential orders
Appearances:
M. A. AdamFor Appellant(s)
B. Musa (PSC ) with him, F. I. Makintami (PSC, MOJ, Yobe State)For Respondent(s)
