China Geo Engineering Co. (Ccg) V. Simon Nambativ (2000)

LawGlobal-Hub Lead Judgment Report

UMOREN, J.C.A.

The fact that led to this appeal are as stated below in some detail, for purposes of clarity:- The defendant/appellant was awarded contract by Taraba State Water Agency to drill boreholes and lay pipes in Takum. That by an agreement dated 25/7/96, (Exhibit ‘A’), the defendant sub-contracted to the plaintiff the digging of channel for water pipes at the rate of N250.00 per meter at rock section, and N90.00 per metre at other sections. That the contract consisted of two phases: phase one was from Taraba State Water Board Tank to Tampa II, and phase two was for the internal network in Tampa II. That phase one covered 4536 metres of rock section, and 909 metres of other section, while phase two covered 675 metres of rock section and 1067 metres of other section; and the total distance for both phases was 5209 metres of rock section and 1976 metres of other section; and that the whole distance was 7185 metres, and the amount payable to the plaintiff is as follows:-

1. Rock section – 5,209 at N250.00 per metre = N1,302,250.00
2. Other section- 1,976 atN90.00 per metre = N 177,840.00

Which gave the total of =N1,480,090.00

That after the plaintiff had excavated 6,000 metres, a joint assessment/inspection team of the Consultant engineer, Taraba State Government engineer, defendant’s site manager and the plaintiff, went to ascertain which of the distance covered was rock and which was other section. That the interim report shows that 4,150 metres of rock section, and 1,850 metres of other section had at that time been excavated by the plaintiff. This joint team report is exhibited as Exhibit ‘2’ before that court. That the joint team was unanimous that the work done by the plaintiff met the required standard of specification given to the plaintiff. That the defendant had already laid pipes in the channel and covered them. That the defendant was paid the sum of N3,593,090.00 for the work done at the rate of 514.00 per metre. Copy of the Taraba State bill of quantities is Exhibit ‘3’. That out of the N1 ,480,090.00, the defendant paid the plaintiff N966,650.00 and inspite of repeated demands, the defendant till then had not paid the plaintiff the remaining balance of N613,440.00 which plaintiff now claims from the defendant. Plaintiff also claims from the defendant 21% interest on the balance which the plaintiff said in his further affidavit, that it is the rate which his bank charged him when he took overdraft facilities to complete the work. He also claims 10% interest from date of judgment until final payment of the sum.

That the defendant refused to pay the plaintiff the balance because according to the defendant, Taraba State Government refused the defendant’s demand for variation on the contract. Plaintiff said that Taraba State Government paid the defendant N514.00 per metre, while the defendant paid the plaintiff N250.00 per metre for rock section, and N90.00 per metre for ordinary section. Plaintiff further said that if the defendant paid him the above money, he is demanding, that would not reverse his loss he suffered due to accrued interest chargeable.

The claim of the plaintiff was as in paragraph 10 of the plaintiff’s particulars of claim as set out below which was placed on the undefended list:-

WHEREFORE the plaintiff is aggrieved and claims from the defendant the liquidated sum of N513,440,00 (Five hundred and thirteen thousand, four hundred and forty Naira) only plus interest at the rate of 21% from the date of completion of contract till judgment and then 10% from judgment till final liquidation. The relevant paragraphs of the plaintiff’s affidavit are set out below:-

“(a) That the defendant was awarded a contract for the drilling of boreholes and laying of pipes at Takum by Taraba State Water Agency under the National Water Rehabilitation Project for a duration ending in May, 1997.

(b) That by an agreement dated 25/7/96 but executed on 3/8/96 the defendant sub-contracted the digging of the channel for water pipe to the plaintiff at the price of N250.00 (Two hundred and fifty Naira) only per metre at rock section and N90.00 (Ninety Naira) only per metre at other section. A copy of the said agreement is hereto annexed as Exhibit 1.

(c) That the contract in Exhibit 1 consisted of two phases. Phase 1 was from the Taraba State Water Board Tank to Tampa II and phase 2 was the internal network in Tampa II.

(d) That phase 1 covered 4,536 metres of rock section and 909 metres of other section while phase 2 covered 675 metres of rock section and 1,067 metres of other section.

(e) That the total distance for the two phases was 5,209 metres for the rock section and 1,976 metres for other section, making the total distance 7,185 metres.

(f) That he started work in August, 1,996 and completed same on 21/1/97 covering the total distance of 7,185 metres and was therefore entitled to the following payment:

(i) Rock section – 5209mx N250 = N1,302,250

(ii) Other section – 1976mx 90 = N177,840

Total = N1,480,090

(g) That on 3/10/96 when he had excavated a distance of 6,000 metres, there was a joint assessment inspection by the Consulting engineer, Taraba State Government, to ascertain which of the distance covered was rock or other section.

(h) That the interim report showed that 4, 150m of rock section and 1,850 of other sections had as at then been excavated as Exhibit 2.

(i) That the joint assessment team was unanimous that the work done by the plaintiff met the standard specified by the defendant who has already laid pipes in the channel and covered same.”

The defendant filed a notice of intention to defend with a supporting 23-paragraph affidavit. The relevant paragraphs are set out below for ease of reference:-

1. That I know as a fact that the sub-contract for the excavation of pipe lines channel was awarded to the plaintiff who was introduced to the defendant by the said Peter Torju.
2. That according to the term of contract, the plaintiff was to be paid N250.00 per metre for rock section and N90.00 for other section.
3. That at the time of the contract, the plaintiff attention was drawn to the definition of rock as contained in the main contract agreement between Taraba State Government and the defendant. A photocopy of the extract is hereby attached and marked as Exhibit ‘A’.
4. That to the best of my knowledge during the excavation process, the plaintiff did not come across and rock section.
5. That later, the plaintiff complained that the rate of N90.00 which was being paid to him was not adequate and sought for increment.
6. That I told him that I could not increase any amount as consultants have confirmed that there was no rock throughout the length of the excavation channel.
7. That I know as a fact that Exhibit ‘2’ was meant to be an annexure to the application for variation and no more. The application for variation is hereby attached and marked Exhibit ‘B’.
8. That I know as a fact that Exhibit ‘2’ is not a true assessment of the work done by the plaintiff nor does it create any obligation on the defendant.
9. That I know as a fact that there was a disagreement between the plaintiff and defendant as to what was rock excavation and common excavation.
10. That when IBG Ltd received the application for variation, a joint inspection between the State Water Agency, resident consulting engineer and representative of the defendant was carried out and the report is hereby attached and marked Exhibit ‘C’.
11. That I know as a fact that the plaintiff excavated a total of 7, 185 metres made up as follows:

Rock section – 200m

Common section – 5185m

12. That base on the above assessment, the plaintiff was paid a total of N966,650.00.
13. That I know as fact that the last instalment of N369,650.00 was paid on 11/4/97 as final payment for the work done.
14. That the defence of the defendant to the action is that he has been fully paid for all the work he did and no amount is outstanding”.

There was a further affidavit by the plaintiff and the relevant paragraphs are as follows:

“(a) That in order to execute the contract which is the subject-matter of this suit, he obtained an overdraft facility from his bankers, Bank of the North, Makurdi.

(b) That he was charged interest at the rate of 21% on the overdraft which he was able to repay from other sources when the defendant could not completely pay him the contract sum.

(c) That even if the defendant pays the plaintiff the balance of N513,440.00, the amount will not be enough to reverse the loss suffered by the plaintiff by way of accrued interest charges.

(d) That the 10% claimed is the interests chargeable by courts on judgment sum”

On 26/7/97 the learned trial Judge took arguments from both counsel and delivered his ruling/judgment on 15/9/97, wherein plaintiff’s claim was granted. Dissatisfied with the ruling, the appellant had appealed to this court on seven grounds of appeal which without particulars are reproduced hereunder:-

1. The trial court erred and thereby occasioned a miscarriage of justice when it refused to give the appellant leave to defend the action.
2. The lower court erred in law and thereby occasioned a miscarriage of justice when it proceeded to give final judgment on conflicting affidavits.
3. The trial court misdirected itself on facts when it held at page 8 lines 39-42. Thus,… if what the defendant averred in its paragraph 20 was true it would have exhibited the payment vouchers or even photocopies of the said voucher”.
4. The trial lower court erred in law when it proceeded to give judgment even when the claim does not come within the contemplation of Order 23 of the Gongola State High Court (Civil Procedure) Rules, 1987.
5. The trial lower court misdirected itself both in facts and law and thereby occasioned a miscarriage of justice when it placed undue reliance on Exhibit ‘B’ of respondent’s affidavit to arrive at it’s decision.
6. The trial court erred when it awarded 21% interest in favour of the respondent.
7. The judgment of the lower court is against the weight of evidence.

Briefs of arguments were filed and exchanged. The appellant filed a reply brief. The appellant formulated three issues for determination as set out below:-

1. Whether the claim before the lower court is maintainable under Order 23 of Gongola State High Court (Civil Procedure) Rules, 1987, which is applicable to Taraba State.
2. Whether the lower court acted properly when it refused to transfer the suit from undefended list to ordinary cause list of the court.
3. Whether the lower court applied the correct principles of law in arriving at its decision.

Respondent adopted appellant’s issues for determination.

In his arguments on issue No. 1, the appellant contended that even though the respondent tagged his claim as a “liquidated demand”, in reality it was not an action for debt or an action for liquidated demand. He went into the definition of a liquidated demand as proposed by various authors. He submitted that the writ was not for a liquidated demand which must be for a sum agreed or fixed by the parties to the contract.

The respondent by way of objection argued that issue No. 1 was not raised in the court below and cannot be raised for the first time on appeal without leave.

In the appellant’s affidavit in support of his notice of intention to defend, none of the 23-paragraphs raised the issue that the action is not maintainable under 0.23 r. 1 of the Gongola State High Court (Civil Procedure) Rules (as applicable to Taraba State). He cannot be allowed to raise it now. He cited the case of Popoola v. Adeyemo (1992) 9 SCNJ 79 at 96, (1992) 8 NWLR (pt. 257) 1, Atoyebi v. Government of Oyo State (1994) 5 SCNJ 62 at 78, (1994) 5 NWLR (pt.394) 290, Honica Sawmill (Nig. Ltd.) v. Hoof (1994) 2 NWLR (Pt.326) 252, (1994) 2 SCNJ 86 at 93. He urges us to discountenance the objection.

In the alternative, he contended that he agrees with the definition of liquidated sum as adumbrated by the appellant. He however referred to Exhibit 1 attached to the affidavit in support of the claim and states that which he says is clear and unambiguous and concise.

The appellant filed a reply in which he tried to justify his contention that no leave of court is required to raise a fresh issue on appeal. He relied on S.220(1)(a) of the 1979 Constitution of the Federal Republic of Nigeria. He cited Karibi Whyte, J.S.C in Finnih v. Imade (1992) 7 LRCN 117 at 138,(1992) 1 NWLR (Pt. 190) 511 in which His Lordship stated:-

“The day should never come when the scope of the jurisdiction of the Judge to decide a matter is to be circumscribed by the legal erudition of learned counsel. It is a strange thing to say that the Judge cannot apply principles not referred to by counsel. The day such a principle is accepted the true demise of the independence of the Judge in deciding cases before him is assured.”

and submitted that the issue raised in the ground of appeal was an issue which the Judge could apply the law correctly and not a fresh point as contended by the respondent.

I have looked at the objection and all the argument of counsel in their briefs and appellant’s reply brief. I have carefully looked at the authorities cited. Throughout the 23 paragraphs of the affidavit of intention to defend, some of which are set out above, no mention was made of the incompetence of the claim before the lower court. The defendant’s argument in the court below does not touch on it at all. His arguments are at page 24 of the record of proceedings. In his ruling, the learned trial Judge at pages 26-31 of the record did not avert to it because that point was not raised before him and no issues were joined. It is our law that fresh points of law or issues cannot be raised for the first time in the Court of Appeal which were not canvassed in the court below, except with leave of the appeal court. This rule was succinctly stated by Iguh, J.S.C in Atoyebi v. Government of Oyo State (1994) 5 SCNJ 62 at 78, (1994) 5 NWLR (Pt. 344) 290 thus:”

This court will normally not allow a fresh point to be taken before it if, such a point was not raised, canvassed and/or pronounced upon by the court below”.

Also see Onu J.S.C. in Monica Sawmil (Mg. Ltd.) v.Hoof (1994) 2 SCNJ 86 at 93. He said:-

“These are matters being raised or complained of which are neither matters on which issues were joined nor tried in the trial court. They therefore do not arise from the decision appealed against … To argue them on appeal herein therefore required leave of this court. Since such leave has not been sought and obtained, the ground (ground 3) can not be relied upon for distillation of issues or an issue upon which an argument may be founded or proffered.”

However, 0.6., r. 3(a) of the Court of Appeal (Amendment) Rules 1984 stated as follows:-

“3(a) The brief which may he settled by counsel shall contain any point not taken which he intends to seek leave of the court to argue at the hearing of the appeal”.

It goes beyond doubt that to raise a fresh point on appeal which was not canvassed in the court below one needs leave of the court to do so. This, from the record was not sought and obtained. I hope this adds the final nail to the coffin of the respondent’s preliminary objection which is hereby disallowed and struck out.

The appellant’s main grouse in issue No. 1 is that the claim is not for a liquidated demand or recovery of debt. I had already outlined these contentions above. A close look at the claim as contained in paragraph 10 of the particulars of claim as reproduced above and which can be seen at page 3. Paragraph 10 of the record shows that the plaintiff sues for a liquidated sum of N513,440.00 plus interest at 21% and 10% from judgment till final liquidation of the debt. Exhibit 1 to the plaintiff’s affidavit in the court below show an agreement between the parties.

The agreement says the appellant would pay the respondent N250.00 per metre of rock section excavated and N90.00 per metre of common section (i.e. non-rock section).

The trial court had no difficulty ascertaining that the total distance of 7,185 metres covered was made up of:-

(a) Rock section 5,209m x N250 = N1,302,250.00

(b) Common section 1,185m x N90 = N177,840.00

(b) Common section

Total 7,185 = N1,480,09O.00

This is at page 28 of the record and in the affidavits of parties and Exhibit “1” and “2”, to the plaintiff’s affidavit. The appellant acknowledged payment of N966,650.00 out of N1,480,090.00. By mere arithmetic calculation or subtraction, the figure of N513,440.00 was not mysterious. The learned trial Judge correctly found that the sum of N513,440.00 was a debt owing to the plaintiff by the defendant. I agree with him and consequently the appeal fails on this issue.

On issue No.2, the gravamen to my mind is whether the lower court acted within 0.23 of the Gongola State High Court (Civil Procedure) Rules, 1987 as applicable to Taraba State.

Before I set out on my journey, I would like to reproduce the relevant rules of Order 23 of the Civil Procedure Rules governing proceedings in a suit on the undefended list. There is no controversy over the procedure for placing the suit on the undefended list. The major complaint of the appellant is that the suit should have been transferred from the undefended list to the general cause list for oral evidence to be taken. The relevant rules (in 0.23) of the High Court (Civil Procedure) Rules as applicable to Taraba State are herein reproduced for avoidance of doubt:

0.23:

“r.(1) Whenever application is made to a court for the issue of a writ of summons in respect of claim to recover a debt or liquidated money demand and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto, the court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the ‘undefended list’ and mark the writ of summons accordingly and enter thereon a date for hearing suitable to the circumstance of the particular case.

3.r.(1) If the party served with the writ of summons and affidavit delivers to the Registrar a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the court may think just.

(2) Where leave to defend is given under this rule, the action shall be removed from the undefended list and placed on the ordinary cause list; and the court may order pleadings.

4. Where any defendant neglects to deliver the notice of defence and affidavit prescribed by rule 3(1) or is not given leave to defend by the court, the suit shall be heard as an undefended suit, and judgment given theron, without calling upon the plaintiff to summon witnesses before the court to prove his case formally.

The gravamen of the appellant’s argument on this issue is as he puts it at page 5 of his brief:

“The position of the law is that where a defendant has filed his notice to defend with the supporting affidavit (as in this (sic) case) the court is to consider whether the affidavit discloses a triable issue or raises a prima facie case, the suit must be removed from the undefended list and placed (sic) on the general cause list”.

Refers to 0.23; r 3(1), and the case of Macaulay v. NAL Merchant Bank Ltd (1990) 4 NWLR (pt. 144) 283.”

The respondent on this indicated and rightly too that the appellant conveniently omitted the words” an affidavit disclosing a defence on the merit … (Italics mine for emphasis)”. It does appear to me that the appellant wants us to accept as the legal position that merely filing notice of intention to defend a writ on the undefended list ipso facto entitles a defendant an opportunity to defend or that a general denial in his affidavit makes for automatic transfer of the claim to the general cause list.

I am extremely reluctant to go into the finding of facts which the trial Judge ably did. It is set out succinctly at page 30 L. 26-33 of the record. Flowing from this, the learned trial Judge concluded at page 30 as follows:

“It is my opinion that what the defendant wants me to do is to allow him bring oral evidence to displace documentary evidence, because if what be averred were true, he would have exhibited documents for the court to see. Our laws have prohibited courts from allowing oral evidence to be brought to displace documentary evidence. As a court of Justice, I ought rightly reject what the defendant is asking me to do”.

As I said above that the procedure in placing a writ on the undefended list does not attract any complaint. What the appellant is quarrelling about is that, the affidavit in support of intention to defend discloses a defence on the merits. The law governing suits on undefended list was given judicial interpretation in the locus classicus: U.T.C. (Nig.) Ltd. v Pamotei (1989) 2 NWLR (Pt. 103) 244 at 299 where Nnaemeka-Agu, J.S.C. Had this to say:-

“…where however a defendant who has been served with the writ and the affidavit of the plaintiff delivers to the Registrar, not less than five days before the date fixed for hearing, a notice in writing that he intends to defend the suit together with an affidavit setting out the grounds of his defence, then the case shall be entered in the general list for hearing. See Olubosela Stores v. Standard Bank of Nig. Ltd. (1975) SC 5.”

If his Lordship had stopped here, the appellant in this appeal would be sure of judgment. But his Lordship, in keeping with the wordings of 0.23 r. 3(1): “…an affidavit disclosing a defence on the merit”. (Italicising for emphasis), went further to lay down:-

“…where he gives notice of his intention to defend but his affidavit does not show reasonable grounds of defence the case will still be heard under undefended list”.

On E.N.D.C. v. Felix Duruma (196617) 10 ENLR 201 at 202; Nkemena J. held as follows:-

“I am satisfied that the defendant’s affidavit disclosed no defence whatsoever. That being the case, I refuse to enter the case on the general cause list”.

I am satisfied that the law adequately covers the decision appealed against. I agree completely with the way the learned trial Judge evaluated the affidavit evidence pointing out contradictions in the affidavit evidence of the defendant/appellant and rejecting it. The evaluation of evidence is primarily the function of the trial court. It is only where and when it fails to evaluate such evidence properly or at all that the Court of Appeal can intervene and itself evaluate such evidence. On the other hand, where the trial court has satisfactorily performed its primary function of evaluating evidence and has correctly ascribed probative value to it, the Court of Appeal has no business interfering with the findings on such evidence. In the case before me, the affidavit evidence of the defendant/appellant was so much in conflict with itself and told a lie about itself and the learned trial Judge so found. We in the Court of Appeal have no business interfering with the decision of the trial court. He said:-

“In the final analysis, I am satisfied that the defendant wants leave to defend this action for mere purposes of delay…” See page 31, lines 8-9 of record.

On issue No.3, the appellant’s counsel contended that the trial Judge was wrong to have considered that payment should have been made on payment voucher which could have been exhibited by the appellant to prove payment. He argues that the court is not allowed to make a case for the parties. He attacked Exhibit 2 to the respondent’s affidavit and queried why the court should accept it “hookline and sinker” as a true assessment of the work done by the appellant. I am not surprised at the appellant raising all these issue now when his affidavit in support of his notice of intention to defend was silent on these issues. Furthermore, paragraph 11 of his affidavit said his consultant confirmed that there was no rock throughout the length of the excavation channel. In paragraph 18 of the said affidavit he swore that he knows as a fact that the plaintiff excavated a total of 7,185 metres made up as follows:

Rock section – 2,000m

Common section – 5,185m

How on earth could the trial Judge take such an affidavit with seriousness or treat it with credibility. As I have already taken these issues above, I need not repeat myself. The appellant is not helping his case by trying to pull wool across the eyes of the court.

The respondent has treated this argument as repetition of his earlier submission and I agree with him. The issue of interest on the amount claimed was raised in the respondent’s further affidavit. There is nowhere that the defendant denied these averments in any affidavit evidence of his. It is trite facts not denied in an affidavit are deemed to be admitted.

It is now too late for the appellant to now try to refute them by counsel argument which is no evidence before the court. I will conclude this issue by what Ademola, C.J.N. said in Agbaje v. Ibru S. F Ltd. (1972) 5 SC 50 at 55 thus:

“Be that as it may, it is clear that the appellant’s case for an interim injunction is contained in his affidavit which set out facts upon which any court would give consideration to his application. Strangely enough, the respondents admitted all those facts, since there are no denials of all the acts complained of by a counter-affidavit.” This appeal also fails on this issue.

On the whole this appeal is in no way meritorious, it is accordingly hereby dismissed and the judgment of the lower court affirmed. I assess cost at N5,000 in favour of the respondent.

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Other Citations: (2000)LCN/0889(CA)