Godwin Nwaizugbo V. Daewoo Nigeria Limited (2016)
LawGlobal-Hub Lead Judgment Report
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
This is in respect of an appeal against the judgment of the High Court of Akwa Ibom State, Eket Judicial Division delivered by EBIENYIE J. on the 11th March, 2013.
The appellant had taken out a writ at the trial Court to seek redress against the respondent who had allegedly cheated him out of a contract they supposedly secured together. His sole relief as per the said writ of summons dated 16th May, 2008 is as follows:
The Plaintiff’s claim against the defendant is for the sum of N100m (One Hundred Million Naira) representing fair share of the profit and/or fair entitlement of compensation or commission due in favour of the Plaintiff’s company, GORDON BASE VENTURE (NIG.) to secure approval of defendant’s Work Plan for QIT Crude & Condensate Headers Interconnection Project And Tank 6704 Repair contract jobs for Mobil Producing Nigeria Unlimited in Ibeno sometime between December 5, 2003 and January 22, 2004.
?The suit was heard in a full trial which resulted in the judgment delivered as earlier stated on the 11th March, 2013 wherein the learned trial Judge
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found the appellant’s claim unsubstantiated and accordingly dismissed it.
Dissatisfied, the appellant filed a notice of appeal on the 4th June, 2013 containing 6 grounds.
At the hearing of the appeal, Mr. Anyanwu the learned counsel for the appellant adopted the appellant’s brief filed on 7th November, 2013 as the arguments of the appellant in this appeal.
For the respondent, Miss Igwe adopted its respondent’s brief filed on the 10th February, 2014 but deemed properly filed and served on the 2nd November, 2015 as the arguments of the respondent in this appeal.
The appellant formulated 3 issues which were adopted by the respondent. The said issues are as follows:
1. Whether the judgment of the trial Court was right and demonstrated a full consideration and proper evaluation and resolution of the issues joined in the pleadings as well as the evidence of the parties adduced before it.
2. Whether the trial Court was right to question the amount claimed by the plaintiff in the action and to also decline and/or fail to assess what the trial Court considered fair, reasonable and/or adequate damages in the circumstances of
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this case had the case of the appellant succeeded.
3. Whether the claims and the evidence of the plaintiff disclosed a legally cognizable wrong occasioned by the conduct of the defendant to entitle the plaintiff to the benefits of some remedy by the application of the “Ubi jus ibiremedium” principle and/or doctrine in the peculiar circumstances of this case.
Issues 1 and 3 are interwoven and shall be taken together. Their joint fate would determine the necessity to proceed with issue 2.
Arguing the two issues, Mr. Anyanwu submitted that the learned trial Judge failed to adequately consider the implications of Exhibits 3 and 4 and also failed to properly appraise the testimonies of PW1 and PW2 in the judgment especially as contracts could be oral. He referred to NIGERIAN DYNAMIC LTD v. AGUOCHA (2002) FWLR (Pt. 104) 630 at 660, EZEOGU v. GOLDMARK LTD. (2009) 6-7 NMLR 206 at 215-216 and BATALHA v. WEST AFRICAN CONSTRUCTION CO. LTD (2002) FWLR (Pt. 109) 1612-1628.
?He further submitted that the appellant was entitled to judgment of the Court for the wrong done to him by the respondent irrespective of the absence of the ingredients of a
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formal contract in the transaction between the parties. He referred to AWGUOCHA v. ZUBAIRU (2002) FWLR (Pt. 99) 1129 at 1137, MILITARY ADMINISTRATOR BENUE STATE v. ABAYILO (2001) FWLR (Pt. 45) 602 at 616, ODUNSI v. ABEKE (2000) FWLR (Pt. 10) 1621 at 1625 and UNION BANK OF NIGERIA PLC v. OKOROR (2002) FWLR (Pt. 122) 24 at 36.
He concluded that once the Court is satisfied that the defendant is under a duty to the plaintiff, that there was a breach of that duty, that the plaintiff suffered legal injury and that the said injury was not too remote, then the doctrine of ubi jus ibi remedium would be invoked. He referred to BELLO v. A.G. OYO STATE (1986) 5 NWLR (Pt. 45) 828 at 890 and AMAECHI v. INEC (2008) 1 SC (Pt. 1) 36 at 99.
The learned counsel for the respondent, Miss Igwe submitted that the judgment of the learned trial Judge was based on a dispassionate consideration of all the issues canvassed and that the appellant failed to discharge the onus on him to establish his claim with credible evidence on balance of probabilities. She referred to MOGAJI v. ODOFIN (1979) 4 SC 91 at 94, AGWARANGBO v. AKANDE (2000) 9 NWLR (Pt. 672) 341 at 363 and
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N.P.A. v. RAHMAN BROS. LTD (2010) 17 NWLR (Pt. 122) 100.
She submitted further that the appellant failed to show the existence of an enforceable contract as Exhibits 3 & 4 related to a different company from the respondent. She referred NJIKONYE v. MTN NIGERIA COMMUNICATIONS (2009) 9 NWLR (Pt. 1092) 339.
She submitted that there was no basis for the invocation of the doctrine of ubi jus ibi remedium.
It is trite that civil cases are decided on balance of probabilities and onus proof is on the party who desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts and must prove that those facts exist. It is on the party who will lose if no evidence were given on either side. See Section 131 and 132 (1) of the EVIDENCE ACT, 2011, NSIRIM v. NSIRIM (2002) 9 NSCQR 198 and EGHAREVBA v. OSAGIE (2009) 40 NSCQR 469.
The fulcrum of this case is whether the appellant succeeded in establishing the existence of a legally recognizable nexus in the form of a contract between him and the defendant. It is the existence of this contract that would give rise to legal relations
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between them.
According to FABIYI, JSC;
Contract is defined as an agreement between two or more persons which creates an obligation to do or not to do a particular thing. Its essentials are competent parties, subject matter, a legal consideration, mutuality of agreement and mutuality of obligation, Lamoure v. Burrillville Racing Ass n 91 R.I. 94, 161 A. 2d 213, 215. See BILANTE INTERNATIONAL LTD v. NDIC (2011) 46 NSCQR 1002 at 1015.
Stating further in the said case, ADEKEYE, JSC observed as follows:
It is trite that before any contract or agreement can be said to have come into existence in law, there must be an unmistaken and precise offer and unconditional acceptance of the terms mutually agreed upon by the parties thereto. In other words, the parties to the agreement must be in consensus ad idem as regards the terms and conditions freely and voluntarily agreed upon by them. If the terms and conditions of the agreement are uncertain or vague as to defy ascertainment with reasonable degree of certainty, there can never be a valid agreement known to law which can be said to offer itself for enforceability. See BILANTE INTERNATIONAL
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LTD v. NDIC (supra) at 1025-1026.
The case of the appellant at trial rested on the testimonies of PW1 and PW2 as well as Exhibits 3 and 4. PW1 and PW2 did not give evidence that could enable the Court arrive at a concise conception of the content of the contract supposed to be in existence between the parties.
Exhibits 3 and 4 did not help the appellant’s case either as both were documents expressly stated on the face thereof as belonging to a certain DAEWOO E & C CO. LTD. while the respondent herein who was defendant to the case at trial is DAEWOO (NIGERIA) LTD.
These are obviously two separate legal entities without any attempt by the appellant to establish the relationship between them.
The appellant made allusions to and sought to seek refuge under the doctrine of ubi jus ibiremedium. To successfully invoke the said doctrine, the appellant must have shown that the respondent was under a duty to him which duty was breached and resulted in a legal injury to him and which injury was not too remote. See OYEKANMI v. NEPA (2000) 4 NSCQLR 175 at 205 and BELLO & ORS v. A.G. OYO STATE (supra).
?The appellant failed in
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a most woeful manner to establish that the respondent owed him any duty.
?It is not the business of the Courts to make contracts for parties and where a party fails to establish his case as required by law, the proper course is for the trial Court to dismiss his case as was done by the learned trial Judge.
I therefore resolve issues 1 and 3 against the appellant and in favour of the respondent.
The remaining issue is whether the trial Court was right to question the amount claimed by the plaintiff in the action and to also decline and/or fail to assess what the trial Court considered fair, reasonable and/or adequate damages in the circumstances of this case had the case of the appellant succeeded.
The appellant’s relief was for a share of profit but failed to establish the legal basis for this, he did not seek any relief for damages and there was therefore no basis for the learned trial Judge to consider same. This issue is largely academic and speculative and deserves no further consideration.
?I see no merit in the contentions of the appellant in this appeal. The entire case was badly put together and devoid of any form
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of merit. It is totally frivolous and I accordingly dismiss it.
The judgment of the trial Court is hereby affirmed.
Cost of N50,000.00 is awarded in favour of the respondent against the appellant.
Other Citations: (2016)LCN/8704(CA)
