Corporate Affairs Commission V. Jude Elswitch Limited (2016) LLJR-CA
LawGlobal-Hub Lead Judgment Report
MOHAMMED MUSTAPHA, J.C.A.
This is an appeal against the judgment of the High Court of the Federal Capital Territory, Abuja Coram Hon. Justice S. C. Oriji, delivered on the 16th of December, 2011.
At the trial the respondent as plaintiff claimed the following reliefs:
a) The sum of Sixteen Million, Five Hundred and Sixty Eight Thousand, Seven Hundred and Seventy One Naira, Ninety kobo (N16, 568,771.90) only being balance from the (N29, 198,610.00) Twenty Nine Million, One Hundred and Ninety Eight Thousand, Six Hundred and Ten Naira contract sum for the installation of 1250 KVA generating set at the Defendant’s Head Office at Tigris Crescent, Maitama, Abuja, executed by the plaintiff for the defendant.
b) An order mandating the defendant to issue to the Plaintiff an audit certificate by the plaintiff if same may constitute a condition precedent to the payment of the said sum by the bureaucracy/procedure of the defendant.
c) Interest at 15% rate per month from 15th January 2009 when the plaintiff completed the job and the defendant promised to pay the balance until judgment is
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delivered and thereafter, 10% from the date of judgment until full liquidation of the entire judgment sum.
d) The sum of N10m (Ten Million Naira) as general damages for breach of contract.
e) The cost of this actor estimated at N4,000,000.00
At the trial the appellant called a sole witness while the respondent called two witnesses who testified; at the conclusion of hearing judgment was entered for the respondent, dissatisfied the appellant appealed by a notice filed on the 30th of December, 2011 but amended and filed on the 17th of November, 2014 on three grounds shorn of their particulars as follows:
GROUND ONE:
The Learned Trial Judge misdirected himself in fact when he held that:
“The evidence of the DW1 is that during his audit review based on line by line review of the contract, the balance to be paid to the plaintiff is N4,150,000.00. He referred to his internal memo to the Registrar General of the Defendant and stated that some of the figures placed on the items listed in the contract have zero value while some were over-invoiced. He tendered the payment voucher in favour of Afri-Med Nig. Ltd dated 26/01/2010, Exhibit K, to
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support his assertion that the ATS (i.e. automatic change over panel) was purchased by the defendant and not by the plaintiff.”
But subsequently, went on to hold that:
“Also, in the internal memo, the DW1 stated that items 9-11 in the quotation ‘have earlier been paid for’. Item 9 is the automatic change over panel (ATS). At the locus in quo, the PW1 showed the Court the ATS he built and installed. The defendant did not lead any evidence to show that items 9- 11 have been paid for”
Thereby reaching a perverse decision that occasioned injustice to the Appellant.
GROUND TWO
The Learned Trial Judge erred in law when he assumed jurisdiction over the matter.
GROUND THREE:
The Judgment is unreasonable and cannot be supported having regard to the weight of evidence.
In the brief of argument settled by Olasoji O. Olowolafe Esq., of counsel to the appellant the following issues were formulated for the determination of this appeal:
ISSUE ONE:
Whether the learned trial judge rightly assumed jurisdiction over the case of the Respondent. (Ground 2)
ISSUE TWO:
Whether the learned trial judge’s decision that the
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Appellant did not lead any evidence to show that items 9 – 11 have been paid for or has zero value was not perverse. (Ground 1 and 3)
In his brief settled by Smart Iheazor Esq., of counsel to the respondent the issues formulated for the appellant were adopted; this appeal will be determined on the issues as formulated for the appellant:
ISSUE ONE:
Whether the learned trial judge rightly assumed jurisdiction over the case of the Respondent.
It is submitted for the appellant that the appellant who was the defendant at the trial is an agency of the Federal Government, as such an action cannot be validly commenced and maintained against the appellant at the High Court of the Federal Capital Territory, in view of the provisions of Section 251 (1)(r) of the Constitution of the Federal Republic of Nigeria, hereinafter referred as the Constitution.
Learned counsel referred this Court to NEPA V. EDEGBERO (2002) 18 NWLR part 798 at 79, JACK V. UNIVERISTY OF AGRICULTURE MAKURDI (2004) 5 NWLR part 865 page 208, ADETAYO V. ADEMOLA 8 (2010) 15 NWLR part 1215 at 185, NATIONAL UNION OF ELECTRICITY EMPLOYEES V. BPE (2010) 7 NWLR part 1194 at 572, ABIA
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STATE INDEPENDENT ELECTORAL COMMISSION V. KANU (2013) 13 NWLR part 1370 at 83, and urged this Court to hold that the trial Court wrong y assumed jurisdiction in the case.
It is submitted for the respondent that the appellant misconceived the provisions of Section 251(1) of the Constitution because Subsections (p) (q) and (r) confer jurisdiction to the Federal High Court to the exclusion of any other Court on matters relating operation and interpretation of the Constitution, administration or management, or the validity of executive or administrative actions of the Federal
Government or any of its agencies.
That for the Federal High Court to have jurisdiction under Section 251 of the Constitution, the claim must fall within the matters covered by the section, irrespective of whether this is against the Federal Government or any of its agencies, learned counsel referred the Court to TUKUR V. GOVT OF GONGOLA STATE (1989) 4 NWLR part 117 page 517 and PDP V. SYLVA & ORS (2012) 13 NWLR page 1316 at 138, SEVEN UP BOTTLING CO LTD V. ABIOLA & SONS BOTTLING CO. LTD (2001) 13 NWLR part 730 and AHMED V. AHMED (2013) 15 NWLR part 1377 at 352.
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Even though the issue of jurisdiction was not raised at the trial, by either the parties or the Court suo moto it is still well within the appellant’s right to raise the issue of jurisdiction for the first time, before this Court, that is a settled position of the law, see ANYANWU V. OGUNEWE & ORS (2014) LPELR-22184-SC and PETROJESSICA ENTERPRISES LTD v. LEVENTIS TECH. CO. LTD (1992) 5 NWLR part 224 page 675.
Having said that Section 251 (1) of the Constitution is very clear and unambiguous, it prescribes the civil jurisdiction of the Federal High Court, particularly so in subsections (p), (q) and (r); for the avoidance of doubt it reads as follows:
“Notwithstanding anything to the contrary in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil cause and matters:
(p) The administration or the management of the Federal Government or any of its agencies:
(q) Subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so
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far as it affects the Federal Government or any of its agencies;
(r) Any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.”
It is imperative from this provision of the Constitution that in any civil proceeding, except of course in cases clearly stated in Section 251 (1) (a) to (o), the operation and interpretation of the Constitution, administration or management, or the validity of executive or administrative actions of the Federal Government or any of its agencies must as of necessity be in issue before the Federal High Court can have jurisdiction in a matter, notwithstanding the fact that a Federal Government agency may be made a party to the proceedings.
It is very important for the purpose of determining jurisdiction to have recourse to the pleadings, especially of the plaintiff, because that is the only way of finding out whether the claims are within the jurisdiction of the Court.
It is not enough to merely have an agency of the Federal Government as a party before the Federal High Court, simply because it
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is an agency of the Federal Government because the claim of the plaintiff has to be covered by Subsection (r), regardless of whether the claim is against the Federal Government or any of its agencies; and where the matter is simply a contract or debt, the State High Court or in this case the High Court of the Federal Capital Territory enjoys jurisdiction.
A careful scrutiny of the jurisdiction conferred on the Federal High Court by the Constitution under Section 251 (1) will reveal that, the Court has no jurisdiction to hear claims founded on contract; because the section clearly provides a limitation to the jurisdiction of the State and the High Courts of the Federal Capital Territory by reason of the fact that items listed under Section 251 (1) can only be determined exclusively by the Federal High Court; and that being so, all other items not included in the list fall within the jurisdiction of the State and the High Court of the Federal Capital Territory.
It is therefore immaterial for this purpose that the appellant in this case is an agency of the Federal Government, because the dispute is based on contract as it is clear from the claim.
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Contracts generally are not included in the original and additional exclusive jurisdiction conferred on the Federal High Court: See SEVEN-UP BOTTLING CO. V. ABIOLA & SONS BOTTLING CO. LTD. (2001) 13 NWLR (Pt. 730) 469 and NJIKONYE V. MTN NIG. COMMUNICATIONS LTD (2008) ALL FWLR part 413 at 1368.
Contrary to the submission of learned counsel to the appellant the case of ABIA V. KANU supra referred to is distinguishable from the case at hand not least because that case did not involve issues of contract, and the Supreme Court did not say or imply therein that the subject matter of the case is irrelevant once one of the parties is the Federal Government or one of its agencies.
The law is settled that in actions involving the Federal Government or any of its agencies which arise from simple contract the Federal High Court does not enjoy that exclusive jurisdiction vested by the provisions of Section 251(1)(p) and (r); see ADELEKAN v. ECU-LINE (2006) ALL FWLR (321) 1213 at 1226, where the Supreme Court had this to say on the jurisdiction of the Federal High Court under Section 251(1) of the 1999 Constitution:
“Section 251 of the 1999
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Constitution confers jurisdiction on the Federal High Court but the jurisdiction so conferred does not include dealing with any case of simple contract or damages for negligence.”
The decision of the Supreme Court in AHMED V. AHMED (2013) 15 NWLR part 1377 page 274 at 352 referred to by learned counsel to the appellant aptly summarizes the position of the law with regard to the jurisdiction of the Federal High Court under Section 251 (1)of the Constitution it reads in part as follows:
“…the Court…is enjoined to consider not only the parties to the suit but most importantly the subject matter of the claim before it. While the provision of Section 251 (1) of the Constitution is restrictive in its application,…it does not confer a blanket exclusive jurisdiction in a case involving the Federal Government and its agencies, hence the subject matter consideration must serve as a guiding principle.”
The respondent s claim in this case is clearly for recovery of money due to the respondent from the contract entered into with the appellant, and for that reason the High Court of the Federal Capital Territory has jurisdiction to entertain the matter;
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accordingly this issue is resolved in favour of the respondent, against the appellant.
ISSUE TWO:
Whether the learned trial judge’s decision that the Appellant did not lead any evidence to show that items 9 – 11 have been paid for or has zero value was not perverse. (Ground 1 and 3).
It is submitted for the appellant that where the trial Court has failed to evaluate evidence adduced the Court of Appeal is bound to re-evaluate same; learned counsel referred the Court to ANZAKU V. GOVERNOR NASARAWA STATE (2005) 5 NWLR part 919 at 496 and IGBEKE V. EMORDI (2010) 11 NWLR part 1204 at 33 that the findings of the trial Court in respect of Exhibit K vis a vis items 9-11 of Exhibit A is perverse.
That in civil trial where the findings of fact of a trial Court are challenged on appeal, the Appellate Court will seek to know whether the trial Court used the imaginary scale to weigh the evidence on either side; learned counsel referred the Court to ASHEIK V. MEDIA TRUST OBIAKOR (2005) 5 NWLR part 919 page 507.
That from the state of pleadings there is no burden on the appellant who asserted some items listed in the contract have zero value but it
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is for the respondent who asserted the affirmative of the issue to prove same; learned counsel referred the Court to PLATEAU STATE V. A.G. FEDERATION (2006) 3 NWLR part 967 at 417.
Learned counsel further submitted that the trial Court wrongly placed the burden of proof on the appellant instead of the respondent and arrived at a wrong conclusion as a result by awarding the whole amount claimed.
It is submitted for the respondent that the claim that the ATS was bought and installed by the respondent is supported by both pleadings and evidence; learned counsel referred the Court to paragraph 13 of the amended statement of defense and the evidence of DW1.
That the trial Court did not misdirect itself because Exhibit K is the Payment Voucher for the ATS bought by the appellant, different from the one installed by the respondent which DW1 acknowledged.
That also the appellant merely alleged in its defense that some figures on items listed in the contract have zero value while some were overpriced, but failed to explain the allegation; especially as no explanation of the details was given.
???
That the allegation that items 9-11 have been paid
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for is a positive assertion which required proof by the appellant, but that was not done, especially as the internal memo relied upon by the appellant was not tendered; and also that the trial Court visited the locus in quo where it was shown the installation carried out by the job order.
Learned counsel further submitted that even if any misdirection is assumed to exist, no miscarriage of justice was occasioned having regard to the whole proceedings; the Court was referred to MULIMA V. USMAN (2014) 16 NWLR part 1432 at 195.
The findings of a Court is said to be perverse, when it persists in error, or is different from what is reasonable or required or against the weight of evidence; “A decision may be perverse where the trial judge took into account matters which he ought not to have taken into account or where the judge shuts his eyes to the obvious.” PER OPUTA, J.S.C in ATOLAGBE V. SHORUN (1985) NWLR part 2 page 360.
The appellant claimed in paragraph 13 of the amended
statement of defense at page 92 of the record of appeal that it:
“…bought an Automatic Change Over Panel (ATS) at the cost of N6, 984,305:00 while it was the
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Defendant that purchased it at the cost of N5,179,000.00. The Payment Voucher is hereby specifically pleaded.”
One would expect an assertion like this to be proved by the appellant as required by law, not least because Courts base their decisions on evidence.
The general rule in civil proceedings is that the burden of proof lies upon the party who substantially asserts the affirmation of the issue, see Section 135 of the Evidence Act, Cap. 112 Laws of the Federation of Nigeria 1990 which puts the matter beyond doubt: it provides:
“135(1) whoever desires any Court to give judgment as to any legal rights or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.???
See IHEKWOABA V. COMMISSIONER OF INTERNAL REVENUE (1958) 3 FSC 67; BELLO V. ARUWA (1999) 8 NWLR (PT.615) 454.
The appellant in this case did not call any witness to lead evidence in this regard, thus falling to support the averment with any evidence as is required; where a party fails to adduce evidence in
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support of his averments in the pleadings, such averments are deemed abandoned. This is so because averments are not evidence. See SUARA YUSUF V. OLADEPO OYETUNDE & ORS (1998) 12 NWLR (pt. 579) 1, (1993) 9-10 SC 123; OMOBORIOWO v. AJASIN (1984) 1 SC 205.
The consequence of this failing is that the averments in the pleadings, and the otherwise eloquent submissions on behalf of the appellant amounted to very little in the eyes of the law because they do not speak for the pleader without supporting evidence, unless of course the adversary admits them.
They were not admitted in this case at hand, because the respondent filed a reply to the amended statement of defense, explaining at paragraphs 9 and 10 that the ATS in contention was built and installed by the respondent, distinct from the ATS bought in 2010 as a replacement to the oldest one; See CHIME V. CHIME (2001) 3 NWLR (PT. 701) 527; U.B.N. LTD. V. JIMBA (2001) 12 NWLR (PT.727)505.
The appellants sole witness, DW1, when asked. “How many ATS do you have in the premises of the defendant” Admitted during cross examination at page 161 of the record of appeal that “there are 2, 1 was
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supplied by the plaintiff.”
It is very important in this case to note that the trial Court even visited the locus in quo, see page 163 of the record of appeal, where it had the opportunity of seeing the ATS the respondent claimed to have built and installed without dispute;
“The whole purpose of a visit to locus in quo is for the Court to see the subject matter or clarify minor contradictions and uncertainties that have arisen from the evidence of the parties regarding the physical state of the subject of the action.” ETUKUDO & ANOR V. UDUAKAGHA (2012) LPELR-9471-CA; see ALSO CHUKWUOGOR VS. OBUORA (1987) 3 NWLR (PT. 61) 454; NWIZUK VS. ENEYOK (1953) WACA 354″
At the locus in quo the respondent led evidence through PW1 to establish its claim that it built and installed the ATS in contention:
PW1 “this is the ATS which I built and installed. These are the logs and support…”
On being asked “why did you bury the copper cable for earthing outside” during cross examination he gave the apt reply that “…we need a place where the soil is always wet. So, it is buried outside…”
The evidence from the Locus in quo led the trial Court to
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accept the appellants claim that it built and installed the ATS, see page 177 lines 5 to 6; and also to the conclusion that “the defendant did not lead any evidence to show that items 9 to 11 have been paid for. I agree with the plaintiff’s counsel that the DW1 did not state the basis for making the assertion in paragraph 11…that the contract figures placed on the items listed in Exhibit A have zero value…” lines 6 to 10 of page 177 of the record of appeal.
Flowing from these, is the irresistible conclusion that the appellant failed to explain, much less prove the basis of the claim that the figures placed on some items listed in the contract have zero value, or that some were over invoiced.
The defendant/appellant clearly bore the burden to prove his assertion that some items had zero value, while others were overpriced; this is more so because the defendant not only pleaded an internal memo dated 21st January 2011, but claimed to have attached same to its statement of defense, yet failed or refused to tender same at the trial; he who asserts must prove same. See: OKUBULE V. OYEGBOLA (1990) 4 NWLR (PT.147) 72; OSAWURU V. EZEIRUKA (1978)
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6-7 SC 135 AT 145; ODUKWE V. OGUNBIYI (1998) 8 NWLR (PT.561) 339 AT 352.
The trial Court cannot therefore be faulted when it found at page 174 of the record of proceedings that:
“… Exhibit A was the offer made by the plaintiff to the defendant for the installation of the generating sets. The defendant accepted the offer and issued the job order Exhibit B…the plaintiff is only required to show that it executed the contract, it is not required to prove the items listed to show that it executed the contract, it is not required to prove the items listed in the quotation one by one, the parties having agreed on the contract sum… there is no legal basis for the defendant to argue that the cost of transport is outrageous or that the plaintiff is not entitled to the sums for workmanship…”
As righty found by the trial Court, parties to a contract are indeed bound by the terms of their contract; it is settled law that parties to an agreement are bound by the terms and conditions of the contract they signed. See ISHENO V. JULIUS BERGER NIG. PLC (2008) 2-3 SC II PG. 78.
Where there is a contract between the parties, the principal duty of the
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Court is to interpret that contract and give effect to the wishes of the parties as expressed in the contract document.
The circumstances justifying interference of the findings of a trial Court by an Appellate Court were examined by the Supreme Court in CHIEF FRANK EBBA V. CHIEF WARRI OGODO & ORS. (1984) 4 SC.84 and OKAFOR V. IDIGO (1984) 1 SCNLR.
An Appellate Court would not ordinarily interfere with the findings of a trial Court except where it is perverse; it is for this reason that the Supreme Court held in WOLUCHEM v. GUDI (1981) 5 S.C. 291 that:
“The principles under which an Appellate Court would interfere with the findings of a lower Court have been laid down by several authorities of this Court and Court in common law jurisdictions. It is now settled law that if there has been a proper appraisal of evidence by a trial judge a Court of Appeal ought not to embark on a fresh appraisal of the same evidence in order to arrive at a different conclusion from that reached by the trial Court Furthermore, if a Court of trial unquestionably evaluates the evidence then it is not the business of a Court of Appeal to substitute its own views for
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the views of the trial Court.”
This Court does not see the need or necessity for interfering with the decisions of the trial Court in the circumstances, accordingly this issue too is resolved in favour of the respondent against the appellant.
Having resolved both issues for determination in favour of the respondent against the appellant the appeal fails for lack of merit and it is dismissed with cost of N30, 000.00 against the appellant; the decision of the trial Court is affirmed.
Other Citations: (2016)LCN/8662(CA)
