Ame Consulting Engineering Limited & Anor V. Mr. Babatunde Cole (2016)
LawGlobal-Hub Lead Judgment Report
UZO I. NDUKWE-ANYANWU, J.C.A.
This is an appeal against the decision of the High Court of Lagos State delivered on the 21st day of October 2013 by Hon. Justice L. B. Lawal-Akapo.
By a Writ of Summons together with a Statement of Claim dated 22nd October 2007 the Claimant now Respondent claimed against the Defendant now Appellant as follows:
?a. The sum of N30 million (thirty million naira) being the amount due and payable to the Claimant in respect of the obligation to the Defendants arising from the deed of payment dated 8/8/2007, endorsed by the parties.
b. Interest at the rate of 21% per annum on the said sum of N30million (thirty million naira) from 31/8/2007 until the date of judgment, and interest at the rate of 15% per annum from the date of judgment until the judgment-debt is totally liquidated?
It is the case of the Respondent that he was engaged by the Appellants to facilitate the award of the Orile Tanker Terminal Contract from the Lagos State Government to the Appellants. He alleged that once the contract was awarded, the Appellants and the Respondent signed a deed of payment
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[Exhibit P2) wherein the Appellant agreed to pay the Respondent the sum of N30 Million as facilitator. However the Appellant refused to pay the money, despite several demands by the Respondent and his Counsel. Hence the Respondent commenced this action at the Court below.
The Appellant on the other hand in their Amended Statement of Defence, dated 30th June, 2008 denied engaging the Respondent as facilitator. They contended that they won the contract through a totally transparent process which included the submission of bid, interviews, provided technical justification and proof of financial capability. They also contended that the Respondent’s involvement in the project began when he showed interest as a potential investor at the stage the Appellants were preparing to submit their bid. They allowed him to co-sign the bid upon a condition that he would contribute an equity capital of N50 Million, which he agreed but failed to pay. The Appellants also alleged that they awarded to the Respondent a contract for the construction of a perimeter fence round the project site to which the Respondent collected the sum of N11 Million as mobilization fees from the
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Appellant but refused to perform the contract nor did he return the money. The said contract was then re-awarded to another person. They also alleged that the deed of payment [Exhibit P2] was executed under duress as the Respondent threatened to disrupt the commissioning of the first phase of the project.
In response to the Appellant’s Amended Statement of Defence, learned counsel for the Respondent filed a reply to the Amended Statement of Defence dated 17th September, 2009 pursuant to an order of Court.
In delivering its judgment the learned trial judge granted the relief as claimed by the Respondent.
Dissatisfied with the said judgment, the Appellant filed a Notice of Appeal on 20th November, 2013 consisting of nine (9) grounds of appeal.
At the hearing of the appeal, learned counsel for the Appellant relied on the Appellant’s brief of argument which was filed on the 27th day of December, 2013 and the Appellant’s Reply brief which was filed on the 20th day of February, 2014 but was deemed properly filed on the 11th May 2015.
The Appellant in its brief of argument formulated three issues for determination viz:-
?2.1
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Whether the learned trial Judge was right to have relied on Exhibit PIB as the reply statement on oath of the Claimant/Respondent as against Exhibit P5 (Grounds 1 & 2)
2.2. Whether the learned trial Judge rightly evaluated the testimony of the Claimant/Respondent and that of the Defendants/Appellants before arriving at the judgment appeal against (Grounds 3, 4, 5 & 9)
2.3 Whether the deed of payment (Exhibit P2) is ex-facie illegal, immoral and contrary to public policy? (Ground 6)”
On his part, the Respondent filed a notice of preliminary objection on 15th April, 2015 and it’s brief on 13th February, 2014 but was deemed properly filed on the 11th May, 2015. In it, the Respondent articulated two issues for determination. They are as follows:-
?1. Whether the wrong reliance on Exhibit ‘PIB’ by the Lower Court has in the circumstances of the causes of action before it, led to a miscarriage of justice or is so material that, it affected the Judgment of the Lower Court (Ground 1)
2. Whether the Lower Court was right in its judgment that the Respondent had proved his claims to entitle him to the grant of the 2 reliefs claimed
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in the case (Grounds 2, 3, 4, 5, 6 and 9)
It is imperative at this point to deal first with the preliminary objection raised by the Respondents.
The Respondents’ argument on the preliminary objection is contained at paragraph 2 of its brief of argument. In arguing the preliminary objection, counsel submitted that by the provision of Section 251 of the Evidence Act, 2011 a ground of appeal which complains of wrongful admission of evidence, to be competent, must contain particulars to show that the wrong admission of inadmissible evidence has occasioned a miscarriage of justice. He referred to the case of A.G. Kwara v. Olawale (1993) 1 NWLR (Pt.272) 645. It is the contention of Counsel that ground 1 and 2 which deals on the wrongful admission of Exhibit P1B does not contain any particular to the effect that the wrongful admission of Exhibit P1B had occasioned a miscarriage of justice. Hence grounds 1 and 2 and the argument in issue 1 distilled therefrom are incompetent and liable to be struck out. Counsel also contended that issue 2 (which was distilled from grounds 3, 4, 5 and 9) which made issue 1 its foundation must in the same light be incompetent
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and liable to be struck out.
He further contended that grounds 7 and 8, from which the Appellants have formulated no issues, should be deemed abandoned.
In response to the Respondent’s Preliminary objection, learned counsel for the Appellant submitted that contrary to the submission of Respondent’s Counsel with regards to grounds 1 and 2, that ground 1 and 2 contained particulars of errors and are therefore competent. Thus grounds 1, 2, 3, 4, 5 and 9 are all competent. He thus urged this Court to dismiss the preliminary objection.
With respect to ground 7 and 8, counsel concedes that it wished to abandon the said grounds and urged the Court to strike same out accordingly.
The preliminary objection by the Respondent is not viable as he argued these points also in the main appeal within the 3 issues articulated. I will therefore discuss it as argued in the substantive appeal and strike out grounds 7 and 8 conceded by the Appellant.
Issue 1
Learned counsel for the Appellant submitted that the trial judge was wrong to have relied on Exhibit P1B as against Exhibit P5. According to counsel, the Statement on oath accompanying the
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Respondent’s reply to Statement of Defence [Exhibit P1B] was replaced/substituted for Exhibit P5 another Statement on Oath filed along with the amended Reply to the Statement of Defence by order of Court and was thus no longer valid in this case. He further contended that although Exhibit P1B was tendered in evidence due to oversight, the Court’s attention was called to it by both counsel in their final addresses urging the Court to discountenance same in its judgment. He referred to the last paragraph of Defendant’s final address at page 480 – 481 of the record and paragraph 1.5, 1.6, 1.7 and 1.8 of the Claimant’s Counsel final address at page 492 of the record of appeal. He also contended that the reliance on Exhibit P1B has occasioned substantial miscarriage of justice. According to him the trial judge reliance on Exhibit P1B has led to wrongful admission of inadmissible evidence by the learned trial judge which includes:
?a. the Claimant/Respondent applied for the contract on behalf of the Defendant/Appellant from the Lagos State Government using the letter head of the 1st Defendant/Appellant.
b. the Claimant paid N1.1 million as part of
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the funds used in execution of the contract (see the lines 4-9 page 508 of the record of appeal)”
Which are not contained in Exhibit P1A and P5 but only mentioned in Exhibit P1B. He relied on George v. Dominion Farms Ltd (1963) 1 All NLR 71 @ 77. He thus urged this Court to resolve this issue in favour of the Appellant.
Learned counsel for the Respondent on its own part, conceded that the Lower Court was wrong to have relied on Exhibit P1B, as same was abandoned and ought to be struck out. However, counsel submitted that for the Appellant to succeed on this ground it ought to show that the wrong reliance of Exhibit P1B did occasion a miscarriage of justice. He relied on A.G. Kwara v. Olawale (Supra); Adeyemi v, A.G. Oyo State (1984) 1 SCNLR 525. It is the contention of counsel that the Appellant has failed to show that the wrongful reliance on Exhibit P1B did occasioned a miscarriage of justice. According to counsel the failure of the trial judge to discountenance Exhibit P1B has not occasion any miscarriage of justice as the content of Exhibit P1B is irrelevant to the issues before the Court. He also contended that nowhere in the judgment of the
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trial Court was the content of Exhibit P1B referred to. He urged this Court to dismiss the Appellant’s arguments in this regard.
The Appellant had argued that the learned trial judge relied on Exhibit P1B which both parties agreed that it should be expunged. In its place both counsel agreed that the real exhibit to rely on is P5. The Court has to look into the offending Exhibit P1B and see whether anything in it is really obnoxious. The Appellant has not shown which areas of the exhibit are at cross purposes with this appeal. The learned trial Judge inadvertently relied on this Exhibit.
I do not see any way it has occasioned a miscarriage of justice. This issue is resolved against the Appellant.
ISSUE 2
It is the contention of learned counsel for the Appellant that the judgment of the trial judge was perverse and likely to be set aside. According to counsel the judgment is based on wrong evaluation of the evidence adduced by both parties at the trial. These include:
1. The reliance of inadmissible evidence [Exhibit P1B).
2. The erroneous findings that:
a. The Appellants invited the Respondent to act as the preferred
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contractor/financier. The Appellant denied making such statement.
b. A new company was incorporated to accommodate the Respondent when it was discovered that he was not an engineer. The Appellant denied making such statement.
c. Both parties agree to sign Exhibit P2 but the Appellants said it was fraught with irregularities and such cannot be enforced. Whereas the Appellants objection to the enforcement of Exhibit P2 was that it was signed under duress.
d. The bulk of the defence of the Appellants was centered on alleged refusal of the Respondent to consummate a contract for perimeter fencing and seeking to recover the N11 Million paid to him as mobilization. Whereas the Appellant defence was that the Respondent never facilitated the contract to them.
3. No documentary evidence was provided by the Respondent to prove that he facilitated the contract. The Appellants on their part tendered Exhibit D6 [Copy of the bid], Exhibit D7 and DB [Evidence of bank loans taken by the Appellants in proof of financial justification)
He thus urged this Court to intervene in view of these perverse findings by the trial Court and resolve this issue in
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favour of the Appellant.
On the other hand, learned counsel for the Respondent submitted that the Appellants having admitted that the Respondent facilitated the award of the Orile Tanker Terminal Project contract in favour of the Appellant which led to the signing of Exhibit P2, thus the trial judge was right in granting judgment in favour of the Respondent. He referred to paragraph 5 of the New Statement of Defence of the 1st and 2nd Defendants dated 30th June, 2008; paragraph 9 and 25 of the Appellants evidence in chief [Exhibit D1); lines 24 – 26 of page 477 of the record of appeal. Counsel urged the Court to resolve this issue in favour of the Respondent.
?
This issue is centered on the evaluation of evidence by the trial judge. Evaluation of relevant and material evidence before Court and the ascription of probative value to such evidence are the primary functions of the trial Court, which saw, heard and assessed the witnesses while they testified. Where the trial Court unquestionably evaluated the evidence and justifiably appraised the facts, it is not the business of the Appellate Court to substitute its own views for the views of the trial
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Court.Agbi v. Ogbeh (2006) 11 NWLR (Pt.990) Page 65; Bashaya v. State (1998) 5 NWLR (Pt.550) Page 351; Ojokolobo v. Alamu (1998) 9 NWLR (Pt.565) Pg 226; Sha v. Kwan (2000) 1 SC (Pt.1) Pg.21; Adebayo v. Adusei (2004) 4 NWLR (Pt.862) Page 44; Fagbenro v. Arobadi (2006) 7 NWLR (Pt 978) Page 174.
Thus, 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 an appellate Court can intervene and reevaluate such evidence, otherwise the appellate Court has no business interfering with the finding of the trial Court on such evidence. See Adebayo v. Adusei [supra].
The Appellants listed the so-called inadmissible evidence that the trial judge admitted. The Appellants failed to show how these pieces of evidence affected the outcome of the case. The trial judge referred to Exhibit P1B as an exhibit that the Respondents tendered and that was all. He neither made reference to it nor utilize any information from it.
The trial judge in his considered judgment deciphered two questions that were germane.
“(i) Was the Deed of Payment Exhibit ?P2?
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fraught with illegality or irregularity?
(ii) Can the Court in the circumstances of this case give effect to Exhibit “P2?, the Deed of Payment?
The learned trial judge discussed Exhibit P2 extensively. I will recap what he wrote verbatim
“First, from the evidence led by both parties, they both agree signing the document but the Defendants said that it was fraught with irregularity and such cannot or should not be enforced.
The Defendants filed a 29-paragraph Witness Statement on Oath on signed Exhibit ‘P2″ because of pressure from the Claimant.
Paragraph 24 of the Defendant Statement on Oath reads:
?24 The Claimant mounted so much pressure and distraction on the Defendants about the 5th – 8th day of August 2007 while the latter were seeking the enhanced funding to conclude the 1st Phase of the Project for commissioning. He insisted that the Payment Deed was the only form of assurance he would accept as proof of his involvement in the project. The Defendants under such undue influence and pressure signed the Deed dated 8th day of August, 2007, knowing that the Plaintiff had provided no consideration whatsoever as stake
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in the project and of the fact that they knew it was worthless piece of paper.
Exhibit ?P2? was signed on 8th day of August, 2007. Subsequently, the Defendants forwarded Letter dated 25th day of September, 2007 to the Claimant which Letter was received in evidence as Exhibit ‘P4’, Exhibit ‘P4’ reads:
?25th September 2007
The Managing Director
FREEWORLD INTERPRISES
100, Isolo Road,
Mushin, Lagos,
ATTENTION: Mr. Babatunde Cole
Dear Sir,
RE: DEED OF PAYMENT AS FACILITATOR TO THE PROJECT ORILE-IGAMU
We write to inform you about our inability to meet up the August, date of payment due to inability of getting fund within the short period of our executing the deed of payment.
Secondly, the focus of the stakeholders and government is for us to commission the project on or before 2nd week of October, therefore we ask for your patience.
However, as soon as the commissioning of the 1st phase is accomplished and the facility start functioning, we hope to make the first tranche of the payment of N10,000,000.00 (Ten Million Naira).
We thank you for your long patience.
Yours
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faithfully,
For: Ame Consulting Engineering Ltd.
SGD.
Engr. Felix Chukwu (MNIOB, MNSE)
Exhibit ?P4? clearly and without any shadow of doubt confirms the voluntariness of Exhibit ?P2?. Added to that the sole witness for the Defence, that is, the 2nd Defendant confirmed under cross examination on 2nd day of May, 2012 that his Lawyers assisted him in preparing Exhibit ‘P2’ and he sent it to the Claimant for his signature
I therefore find and I hold that there is no irregularity or illegality in the preparation of Exhibit ?P2?. Since Exhibit ?P2? as I have found is properly made should the Court give effect to it.
The answer is clearly in the affirmative. It is the primary duty of the Court to give effect to Contracts and Agreements freely made by Parties,
See the Supreme Court decision in:
STANDARD (NIG) ENGINEERING CO. LTD. VS NIGERIAN BAND FOR COMMERCE & INDUSTRY
(2006) 7 NWLR (PT.978) PAGE 798.
See also
ALFA RAMONI WOMILOJU VS. MADAM ABOSEDE KIKI & ANOR.
(2009) 16 NWLR (PT. 1166) PAGE 143 at 153,
The Claim is on the
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recovery of N30 Million from the Defendants by the Claimant. The bulk of the 29 point Statement on Oath of the Defendant is centred on the alleged refusal of the Claimant to consummate a Contract for construction of fence and seeking to recover the sum allegedly paid as mobilization fees to the Claimant.
I have taken a close look at the Statement of Defence of the Defendant dated 30th day of june, 2008. There is no counter – claim contained therein.
In the absence of a counter-claim, the Court not being a Father Christmas cannot award to a Party that which he did not claim.
See the Supreme Court decislon in:
CHIEF T. A. AKAPO VS. HAKEEM HABEEB & ORS.
(1992) 6 NWLR (PT.247) PAGE 266.
See also
STANDARD (NIG) ENGINEERING CO. LTD. VS. NIGERIAN BANK FOR COMMERCE & INDUSTRY
(SUPRA)
I find and hold that the issue of contract for construction of fence and recovery of money paid cannot be a defence to obligation and, liability created in Exhibit ‘P2′ which was freely made by both Parties.
I therefore resolve the two issues for determination against the Defendants and favour of the Claimant.<br< p=””
</br<
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From the totality of the evidence led, I find that the Claimant has proved his case and is entitled to judgment. Consequently, judgment is entered in favour of the Claimant against the Defendants jointly and severally in the sum of Thirty Million Naira (N30,000,000.00) with interest at the rate of 21% per Annum effective from 31st day of August, 2007 until judgment and thereafter at the rate for 6% per annum until final liquidation of the entire sum.
Cost of N100,000.00 (One Hundred Thousand Naira) is awarded in favour of the Claimant against the Defendants.”
This is the sum of his considered judgment. It showed that the learned trial judge considered Exhibit P2 which is the deed of payment, the center of this claim.
I do not see how, the extraneous pieces of inadmissible evidence affected the outcome of this judgment.
The Appellate Court does not necessary make a habit of substituting its views to that of the trial judge who saw the witnesses. The Appellate Court may interfere where the decision reached is perverse or that the trial judge reached a wrong decision.
In civil cases, after all the evidence is led, it is for the trial
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judge to consider the evidence of both the Plaintiff and the Defendant and ascribe relative weight to each of them. After the weighing of evidence of both sides, the Plaintiff should succeed if the evidence in his favour tips the balance in the imaginary scale. He should lead more credible and admissible evidence to secure a declaration in his favour.” Per Ogwuegbu JSC in Adeyeri v. Okobi (1997) 6 NWLR (Pt.570) Page 534. Like in this case, the evidence tips in the balance in favour of the Respondent.
ISSUE 3
It is the contention of counsel for the Appellant that the agreement upon which the trial judge based its judgment is ex-facie illegal and contrary to public policy, hence unenforceable based on the doctrine of Ex Turpi causa non oritio action.
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He contended that the legality of the contract becomes apparent by the combined reading of the following documents i.e. paragraphs 6, 7, 8 and 11 of Exhibit D1; paragraphs 1, 3 and 4 of Exhibit P1A; paragraph 5 of Exhibit P5 and Exhibit P2.
According to him, the totality of the documents is that the Respondent used his political influence to ensure that the Lagos State Government awarded the
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Orile Tanker Terminal Contract to the Appellant thereby deceiving members of the public and got the contract awarded without due process as laid down by the law. Counsel also contended that another reason why the deed of payment is illegal and unenforceable is because it was based on a past consideration. He therefore concluded that since the contract is illegal, thus the letter dated 25th September 2007 wherein the Appellant acknowledged the indebtedness has no legal basis/foundation and therefore is unenforceable.
Counsel for the Respondent submitted that it is trite that whoever intends to claim illegality as a defence must not only plead the illegality, he is also required to set out particulars of the illegality in his pleading. He relied on Western Construction Co. Ltd V. Batalha (2006) 7 M.J.S.C. 184. According to counsel the illegality of Exhibit P2 was not properly pleaded nor particularized in the Appellant’s new Statement of Defence dated 30th June, 2008. Thus the trial Court was right not to rule on same. Counsel also contended that the Appellant having benefitted from the illegality cannot afford to complain now.
He also contended that
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Exhibit P2 being a deed with seal needs no consideration. He also contended that the legality of Exhibit P2 is reinforced by Exhibit P4 (which is the Appellants’ letter acknowledging the debt).
With regards to the Respondent’s counsel contention that Exhibit P2 is a deed with seal and therefore needs no consideration, learned counsel for the Appellant in his reply, submitted that the fact of putting a seal and naming Exhibit P2 a deed does not make it a deed. Learned counsel for the Appellant had argued that the trial judge relied on Exhibit P1B which both Counsel agreed was inadmissible. However, the Appellant was at a loss to show how that reliance affected the outcome of this Judgment. Learned Counsel to the Appellant made a lot of heavy weather on the erroneous findings made by the Court. Again, the Appellant Counsel did not show how it affected the outcome of the judgment.
I believe that the most important piece of documentary evidence is that of Exhibit P2 – the agreement between the parties. It is trite law that parties to a contract are bound by its terms. The express terms of any contract governs all aspects of the relationship between the
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parties. A Court of law must always respect the sanctity of the agreement reached by parties. It must not make a contract for them or re-write the one they have already made for themselves. Sona Braw Plc v. Peters (2005) 1 NWLR (Pt.908) Page 478; Owoniboys Technical Services Ltd v. UBN Ltd (2003) 15 NWLR (Pt 844) Page 545; S. E. Co Ltd v. NBCI (2006) 7 NWLR (Pt 978) Page 201.
The Appellants and the Respondent entered into a relationship which the Respondent said it was to facilitate the award of contract to the Appellants. The contract was awarded. The parties then drew up an agreement Exhibit P2. The Appellants have now denied this agreement denying that the Respondent facilitated their contract award. The Appellants claim that Exhibit P2 was signed under duress.
The Respondent in his proof of the authenticity of Exhibit P2 of 8th August 2007 tendered Exhibit P4 of 25th September, 2007. This letter urged the Respondent to have patience that the first trench of N10 Million would be paid as soon as the first phase of its project is commissioned.
It is mind boggling to believe that the Appellants can claim that they signed Exhibit P2 under
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duress. What of Exhibit P4? Was it also signed under duress?
The Appellants also claimed that Exhibit P2 was signed after the contract had been awarded making it an unenforceable contract. The Court cannot close its eyes to the wishes of the parties. Parties can orally agree on a particular point and later enter into a written agreement, it is part of general commercial practice to reduce the oral agreement as part of the content of the written agreement. SPDC (Nig) Ltd v. Emehuru (2007) 5 NWLR (Pt.1027) Page 347.
The Appellants thereafter claimed that the fact of facilitating a contract is repugnant to public policy, illegal and immoral. However, the Appellants were short in proving to the Court what the Respondent did that was repugnant. The burden is on the Appellant to prove such repugnancy. This, the Appellants failed to prove.
?The Appellants have also alleged that the Court cannot enforce this Exhibit PZ as it was an illegal contract based on illegality. The Appellant claimed that facilitation is against public policy. The Respondent on his part said that part of his job of facilitation was to redo the bill and prepare the bid papers and even
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appended his signature on the papers. He also attended interviews and meetings prior to the award.
The 2nd Appellant in their statement of Defence paragraph 8 stated:
“Even though I signed the Deed dated 8th day of August 2007 together with the 1st Defendant, we signed it because we knew it was a worthless piece of paper.”
The 2nd Appellant in his own words signed a paper he knew was worthless. The Court will not allow a party to lead another party on. The Respondent had a legal claim to the payment as in Exhibit P2.
It is strange that the Managing Director/CEO of the 1st Appellant signed a paper convincing himself that it was worthless. Such acts cannot be encouraged; if indeed the Appellants knew that to facilitate a contract is illegal he should not be allowed to take any benefit of it knowing that it is illegal.
Where a party relies on the plea of illegality to defeat a Plaintiffs claim or a Defendant’s Counter-claim he must plead it except where the illegality is apparent on the face of the claim.Opara v. Omolu (2002) 10 NWLR (Pt 774) Pg 595.
The Appellants had argued that the Respondent did not help in facilitating
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the award of the contract in one breadth and also argued that, that facilitation of a contract was against public policy and immoral. However, the Appellants failed to prove the aspects of the facilitation that was illegal or immoral.
From the above it is clear that the Respondent actually helped in facilitating the award of the Appellants’ contract that culminated in the execution of Exhibit P2. This debt was also acknowledge by Exhibit P4 begging the Respondent to give the Appellants more time to pay its indebtedness. Exhibit P2 is binding on both parties and as such, the Appellants are liable to pay the Respondent the sum of N30,000,000.00 as contained in Exhibit P2.
This issue is resolved against the Appellants.
All the 3 issues articulated by the Appellants are all resolved against them. The appeal is hereby dismissed. I affirm the judgment of the Lower Court and all the orders contained therein.
Other Citations: (2016)LCN/8875(CA)
