Igwem & Co. Ltd & Anor V. Mrs. Clementine Igwebe (2009)

LawGlobal-Hub Lead Judgment Report

ABDU ABOKI, J.C.A.

This Appeal is against the Judgment of the High Court of the Federal Capital Territory Coram S.E. Aladetoyinbo J, delivered on the 18th day of July, 2006.

The Plaintiff/Respondent took out a Writ of Summons in the High Court of F.C.T. on the 23rd day of February 2001 claiming the following:-

“2. A declaration that the Defendants have breached the contract entered into with the Plaintiff for the completion of her 2 Nos. buildings situate at Plot 785, Wuse II, Abuja.

2. An Order of this Honourable Court compelling the Defendants, jointly and severally, to refund to the Plaintiff the sum of N10, 391.84 received from the Plaintiff for the completion of her buildings which was not done and interest on the said sum at the rate of 21%per annum from 1st September 1998 until judgment is delivered and thereafter at the rate of 5% until the judgment sum is liquidated.
3. The sum of N51, 000, 000 (Fifty one Million Naira) as Special and general damages for breach of contract.
4. The cost of this action,”

By a Motion on Notice dated 2nd May, 2001, the 2nd Defendant/Appellant brought an application praying the lower Court to strike out his name from the Suit on the ground that he was an agent of 1st Defendant/Appellant and that the contract, the subject of the suit, was between the Plaintiff/Respondent and the 1st Defendant/Appellant, The lower Court dismissed the 2nd Defendant/Appellant’s application and the Defendants/Appellants filed a joint statement of defence Counter-Claim and the case proceeded to trial, at the end of which the learned trial Judge dismissed the Plaintiff/Respondent’s claim of N51, 000.00 for Special and general damages but awarded in favour of the Plaintiff/Respondent special damages of N4, 607, 236.3K plus 10% annual interest with effect from the 5th day of March, 1998 till 18th July, 2006 as well as 10%annual interest on the principal sum with effect from the 18th day of July, 2006 till the judgment is liquidated.

The Defendants/Respondents being dissatisfied with the Judgment of the lower Court instituted this Appeal.

Parties have exchanged their Briefs. The Appellants’ Brief of Argument dated 16th April, 2008 was filed on the same date whilst the Respondent’s Brief of Argument dated 24th July, 2008 was filed on the 25th day of July, 2008.

From the thirteen grounds of Appeal contained in the Notice of Appeal, eight Issues are distilled on behalf of the Appellants for the determination of this Appeal. They are as follows:-

“1. Whether the Honourable Court was right to use figures not supported by any evidence or exhibit before it in arriving at its judgment.

2. Whether or not the trial Court correctly evaluated the documentary and the witnesses’ evidence before it.
3. Whether the trial Court was correct to found that the Appellants ignored the Respondent’s request for an account and complicated the matter thereby rendering the Court incapable of determining the quantum of work carried out by the Appellant and doing justice to the parties.
4. Whether the court was right to find for the Appellants an amount exceeding her claim before the Court.
5. Whether the Respondent entered into a new contract with the 1st Appellant in 1997 and monies paid before exhibit A was made irrelevant to the case.
6. Whether the Court was right to hold that the Appellant did not obtain express or implied permission of the Respondent before utilizing the balance of the one million Naira.
7. Whether the Court was right to hold that Exhibit Y debriefing the Appellant was made after the Respondent completed the Houses.
8. Whether or not the learned trial Judge was right in finding both the 1st and 2nd Appellants jointly liable.”

On behalf of the Respondent, a lone issue was formulated for the determination of this Appeal and it reads thus:-

“Whether or not the learned trial Court correctly and properly evaluated the evidence before it.”

I have carefully perused the Record of Appeal and the issues distilled by both parties for the determination of this Appeal and I am of the opinion that the following issues shall determine this Appeal. They are as follows:-

“(i) Whether or not the trial Court correctly evaluated the documentary and the witnesses’ evidence before it.

(ii) Whether the Court was right to find for the Appellants an amount exceeding the Respondent’s claim before the Court.

(iii) Whether or not the learned trial Judge was right in finding both the 1st and 2nd Appellants jointly liable.”

Issue 1

“Whether or not the trial Court correctly evaluated the documentary and the witnesses’ evidence before it.”

Learned Counsel for the Appellants, Ekenma James (Mrs.) argued that Exhibit A made by the 1st Appellant is the summary of account and an acknowledgment of the receipt of the sum of N8, 456, 391.84K (eight million, four hundred and fifty-six thousand three hundred and ninety-one Naira, eight-four Kobo) only as payment made by the Respondent towards the completion of the building as at January 18th 1998. Learned Counsel argued that this is a sum much higher than the N7, 979, 400.00 (seven million, nine hundred and seventy-nine thousand four hundred Naira) only which the trial Court found the Appellants acknowledged receiving and which was not the evidence of DW1, the 2nd Appellant.

Learned Counsel maintained that the clear evidence of the 2nd Appellant testifying as DW1 is that he received the total sum of N10, 963, 391.84K but the Court found that he acknowledged receiving only N7, 979, 300 and declared him a liar and his evidence unreliable. He argued that the Court failed to consider that this amount is in agreement with the figures agreed to by both parties in Exhibits 13 and 14.

Ekenma James (Mrs.) submitted that the trial Court found that the Appellants had received the sum of N10, 968, 391.84K and also found the sum of N6, 000, 000as the sum expended by the Respondent and that the trial Court added the two sums above and arrived at the sum of N16,968,391.84K,deducted same from the revised contract sum of N12,361,155.50K to arrive at N4,607,236.34K which it ruled should be refunded to the Respondent by the Appellants with interest.

Ekenma James (Mrs.) further submitted that the trial Court had found that the Appellants contrary to the Respondent’s claim had indeed carried out some work but rather than seek a way to determine the value of work done by the Respondent in comparison with the money received by the Appellants to determine the balance outstanding if any, the Court came up with N16, 968, 391.84K a figure not supported by any evidence in Court.

Learned Counsel maintained that it is trite Law that in reaching decisions, a Court is bound and must confine itself to evidence before it and referred the Court to the case of Obular v. Obaro (2001)8 NWLR Pt. 25 Page32.

Learned Counsel maintained that a Court should endeavour to consider all issues placed before it for due adjudication. He referred to the case of Ndili v. Akinsumade (2000) 8 NWLR Pt. 668 Page 293 at 348.

Learned Counsel submitted that failure to carry out such a constitutional responsibility often creates a yawning gap that must be covered and that the Court of Appeal has the power to consider documents with a view to ascribing the probative value to them.

Ekenma James (Mrs.) maintained that where an evaluation is a sham and justice is thrown to the wind and perverse decision is given, the Court of Appeal has a duty to intervene and give a decision that the justice of the case demands.

Counsel to the Appellants further submitted that the affirmation of the Court that the Respondent spent N6 Million is contradictory to the oral evidence of the Respondent who stated that she used “less than N6 million” to complete the houses whilst in Exhibit Z, the Respondent stated in writing that she spent “…. close to N6 million.”

Counsel maintained that the trial Judge failed to add up the amounts on the receipts tendered by the Respondent which would have made him to discover that all the receipts tendered for materials procured for the completion of the project total oniy N823, 988.37K which is less than one million and could not have amounted to N6 Million by any implied term.

Ekenma James (Mrs.) submitted that since the trial Judge found the sum of N6 million as the sum the Respondent spent in completing the building which sum was neither pleaded, given in evidence nor supported by the Exhibits tendered by the Respondent or indeed any Exhibit or Evidence in Court and found in addition the sum of N4,607,236.34K as the sum the Appellants are to refund to the Respondent which sum is not related to work not done by the Appellants in comparison with the money paid by the Respondent; this Court should hold that the trial Court used and/or imputed figures not supported by evidence to find that the 2nd Appellant is not a witness of truth and this occasioned a miscarriage of justice.

Learned Counsel further submitted that it is trite law that in reaching its decisions, a Court relies both on oral and documentary evidence placed before it by parties in support or defence of their case and must properly evaluate them.

Learned Counsel pointed out that the summary of the Respondent’s case is that she awarded a contract for the completion of her houses which was at the roofing stage but was not yet roofed by the Appellants for the contract which money was received by the Appellants and the works were left completely undone; wherein she prayed the trial Court for a full refund of the monies paid to the Appellants for the work and claimed special and general damages for breach of contract.

Learned Counsel maintained that under cross-examination, the Respondent admitted being the author of Exhibits J1-J3 dated the 8th day of September 1997 wherein she acknowledged visiting the site and seeing the roof in place and under cross-examination she admitted further that the roof was not done twice but that she was referring to decking not roof. Counsel argued that the Respondent admitted that this was not her first building project and yet insisted that she could not tell the difference between a decking and a roof.

Learned Counsel for the Appellants submitted that Section 132(1) of the Evidence Act provides for the mandatory exclusion of oral Evidence by documentary Evidence. Ekenma James (Mrs.) also referred the Court to the following cases:

Bamgbe Gbin v. Oriare (2001)5 NWLR Pt. 707 Page 628 at 634;

Bako v. Kuje Area Council (2001) 11 NWLR Pt. 694 Page 380 at 382.

Learned Counsel further submitted that since the contents of Exhibit J cannot be varied by oral evidence, the trial Judge was wrong to have accepted the oral evidence in place of the clear meaning of Exhibit J and Exhibit 9 (her complaint to the police wherein she admitted that the Appellants did the roof) and urged this Court to so hold.

Ekenma James (Mrs.) maintained that since the case of the Respondent is hinged on her claim that she gave money to the Appellants for the completion of her houses and that no work was done by them wherefore she prayed the Court for a full refund of the monies paid to the Appellants for the project and having admitted under cross-examination that the Appellants put the ceiling in place and some doors and windows, she had fatally contradicted herself and the Court was wrong to hold her as a credible witness.

Learned Counsel submitted that the position of the Law is that when evidence is contradictory, the Court cannot pick or choose the evidence on which to base an award. Learned Counsel referred to the case of Edun v. Provost LACOED (1998)13 NWLR Pt. 580 Page 52.

Learned Counsel further submitted that this allegation cannot be regarded as a mere discrepancy since the whole case of the Respondent is hinged on it and having discovered it to be contradictory and false, the trial Court ought to have dismissed the Respondent’s case and given judgment to the Appellant. Learned Counsel referred the Court to the case of Owena Bank Plc. v. Olatunji (2002) Page 259 at 340.

Learned Counsel submitted that a trial Court has to evaluate evidence placed before it. Ekenma James (Mrs.) referred the Court to the following cases:

Adeleke v. Balogun (2000) 4 NWLR 13 at 122;

Ogunleye v. Oyewole (2000) 14 NWLR Pt. 687 Pages 290 at 302;

Mogaji v. Odofin (1978)4 SC 91.

Learned Counsel maintained that the holding of the learned trial Judge that the oral evidence given by the 2nd Appellant to the extent that he roofed the house before August 1997 did not only controvert Exhibit A but tends to support same emanated out of the wrong evaluation of Evidence before the Court. Counsel for the Appellants submitted further that the trial Judge substituted the clear meaning of Exhibit J1 lines 11-13, a letter written by the Respondent to the 1st Appellant on 8th September, 1997 as well as Exhibit 9 a letter acknowledging the roofing of the properties with the Respondent’s denial under cross-examination that she meant to write decking not roof.

Ekenma James (Mrs.) argued that the trial Judge failed to consider the admission in writing by the Respondent that the boys quarters were actually roofed by the 1st Appellant in Exhibit 9 line 28/29 and also failed to consider the evidence of PW1 and DW1 and Exhibit U2 to the extent that the buildings are duplexes which is the main house, bungalow the boys quarters and to the effect that the houses were at the roofing stage but not yet roofed when the work stopped due to cash flow problems in 1994, that at that point the decking was already in place and walls of the decking floor to carry the roof were already built to roof level only waiting to be roofed.

Learned Counsel maintained that the trial Judge failed to consider that Exhibit A is a progress report of the various matters the 1st Appellant was handling for the Respondent and that the decking referred to in Exhibit A was made in reference with the property in which Rotimi Williams Chamber is the Attorney.

Learned Counsel to the Appellants submitted that the trial Judge failed to find that Exhibits X1 and X2 are works to be carried out to stop dilapidation on the buildings extracted from Exhibits V1-V32 at the request of the Respondent within the first week of August 1997 contain roofing, and no mention of decking therein.

Learned Counsel further submitted that the Lento Aluminum receipts and the receipts of woods purchased relied on by the Court as conclusive evidence that the Respondent roofed the houses are not receipts for roofing sheets but external wall capping; and the quantity, type and size of the wood in the receipts cannot roof the 2 duplexes and the 2 boys quarters as shown in Exhibits V1-V32. Ekenma James (Mrs.) maintained that the trial Judge failed to compare the quantity, type, size and the cost of the materials required for the roofing in Exhibits V1-V32 particularly V5 with Exhibits I, 1-3 and H, 1-3.

Ekenma James (Mrs.) argued that the conclusion of the trial Court that the 2nd Appellant alleged that he roofed the house before August 1997 is not the evidence of the 2nd Appellant before the Court and that the Court failed to consider Exhibits W1 para. 3, in particular lines 9 and 10, which is to the effect that work resumed again with the arrival of the Plaintiff/Respondent in the first week of August and to consider Exhibits X1-2,, which stated that roof and roofing cover was the first major item therein and was begun immediately and completed before the end of August.

Learned Counsel maintained that the trial Judge failed to consider Exhibit J1 line 11 which shows that the Respondent visited on 3rd September 1997 and paid the Appellants the sum of N1, 092, 000.00 as expressed in Exhibit SA and Exhibit A line 20 and that within one month of the Respondent’s two visits to the country, the buildings were actually roofed.

Learned Counsel submitted that the trial Judge also failed to consider the admission in writing by the Respondent In her letter of complaint to the police (Exhibit 9 lines 27-28) that the Defendants/Appellants roofed the boy’s quarters.

Ekenma James (Mrs.) further submitted that the sum of N7, 979, 400.00 ascribed by the learned trial Judge as being the amount accepted by the Appellant as the only money paid to them and the fact that the 2nd Appellant roofed the houses before August were never pleaded or given in evidence or tendered in any Exhibit before the Court or implied in any form rather it is the Court that erred in relying on same to find DW1 an unreliable witness of truth which occasioned a miscarriage of justice.

Learned Counsel maintained that Respondent under cross-examination stated that apart from N5 million proceeds from sale of her land and a little above N3 million, she brought the rest of the money for the completion of the houses in dollars from abroad, but when asked about the N1 million from the rent of the first completed building which the Appellants added to the building works, she admitted that it was true.

Learned Counsel further argued that also when the Respondent under cross-examination denied having a Quantity Surveyor, Exhibits U1 and U2 especially paragraph 4 of Exhibit U2 revealed her Quantity Surveyor who prepared Exhibits VI-V32.

Ekenma James (Mrs.) submitted that from the above, the trial Judge wrongly evaluated the evidence before him and this led to a miscarriage of justice. Learned Counsel urged this Court to so hold.

In his response, Learned Counsel for the Respondent, P.I.N. Ikwueto SAN submitted that it is settled law that the evaluation of evidence is the primary responsibility of a trial Court. He maintained that it is also a settled law that the trial Court must endeavour to appraise and evaluate evidence adduced before it both oral and documentary in the determination of any dispute. He referred the Court to the cases of:

Okolo v. Uzoka (1978)4 SC77;

Nnajiofor v. Ukanu (1986) 4 NWLR Pt. 36 Page 305;

Chinwendu v. Mbamali (1980) 3-4 5C31;

Salaka v. Dosunmu (1997) 8 NWLR Pt. 517 Page317;

Fashanu v. Adekaya (1974) 9 NSCC 327 at 331;

Sagay v. Sajere & Ors (2000) 6 NWLR Pt. 661 Page 360;

Union Bank of Nig. Plc. v. Ishola (200) 15 NWLR Pt. 735 Page47.

Learned Counsel for the Respondent argued that the learned trial Court made the following findings of fact:

(a) “The Contract to complete the two uncompleted duplexes along with their boys’ quarters and fencing as evidence in the bill of quantities Exhibits V1- V32 and Exhibit A are separate and distinct contract.”

(b) “The 2nd Defendant utilized part of an amount of money he collected on behalf of the Plaintiff without the express or implied permission of the Plaintiff.”

(c) “The Plaintiff enumerated the work she did when she completed the two duplexes, part of the work is roofing … the Defendant insisted that they roof(ed) the house. It is clear to this Court that the two parties cannot roof the houses, one of them must be telling lies.”

(d) “The 2nd Defendant cannot be saying that the work has advanced to decking level by Exhibit A on the 30th day of January 1998 and at the same time claiming to have roof(ed) the house before August 1997, this is naked fallacy.”

(e) “In the face of the documentary evidence before this Court the 2nd and 1st Defendants cannot claim to have roof(ed) the two houses the Court hereby accepted that the Plaintiff roof(ed) the houses.

If the 2nd Defendant claimed to have roof(ed) the houses and the Court finds out they did not roof the house, it means he is not truthful.”

(f) “The evidence given by the 2nd Defendant is not in total agreement with Exhibit A which is his own making.”

(g) “After the Plaintiff completed the houses, Exhibit Y was written to the Defendants to forward statement of account, the 2nd Defendant ignored same, the 2nd Defendant has a duty to render account to the Plaintiff, the fact that he refused to render account makes toe case complicated…”

He maintained that the above findings did not indicate that the learned trial Court was in any dilemma.

P.I.N. Ikwueto SAN referred the Court to the findings of the trial Court at pages 228 and 232 of the Record of Appeal to show that the trial Court was not in any dilemma.

Learned Senior Counsel argued that the trial Court after examining Exhibits 13 and 14 found them to be very irrelevant and unreliable.

He submitted that the finding of fact quoted above is supported by evidence as the testimony of the Plaintiff/Respondent was that she spend “a little under N6 million” or “close to N6 million” in view of Exhibit Z. Learned Senior Counsel maintained that the figure N6 million is consistent with the evidence adduced before the trial Court and urged the Court not to disturb the finding of fact above.

P.I.N. Ikwueto SAN submitted further that from the above finding of fact made by the learned trial Court, the veracity and credibility of witnesses played a major role in assisting the Court below to arrive at its conclusion.

He maintained that the learned trial Court made maximum use of the opportunity of seeing and hearing from the parties and their witnesses.

Learned Counsel for the Respondent submitted that decided authorities have established the procedure to be adopted by the trial Court in situations of competing assertions by warring parties. He referred the Court to:

Duruji v. Azie (1992) 7 NWLR Pt. 256 Page 688;

Madumere & Ors. v. Okafor (1990) 3 NWLR Pt. 138 Page314;

Fashanu v. Adekoya (supra);

Jimoh Odufola v. Aileru & Ors (1985) 1 NWLR Pt. 1 Page92;

Coker v. Sanyaolu (1976) 9-10 SC 223.

Learned Senior Counsel submitted that the trial Court after an extensive evaluation of the evidence before it and the credibility of the witnesses made conclusive findings of facts thereon and pronounced its judgment accordingly by accepting one version and rejecting the other version.

He submitted further that the Court of Appeal is not to embark on a fresh appraisal of evidence where the trial Court unequivocally evaluated and appraised the evidence before it, unless the findings are perverse. He referred the Court to: S.C.C. (Nig.) Ltd. v. Elemadu (2005) 7 NWLR Pt. 923, 28 at 83.

P.I.N. Ikwueto SAN maintained that in a civil case, where the findings or non-findings of fact by a trial Court is questioned on Appeal, as in the Instant case, the appellate Court will seek to know the following:

(a) The evidence before the trial Court.

(b) Whether the trial Court accepted or rejected any evidence upon the correct perception.

(c) Whether the trial Court correctly approached the assessment of the evidence before it and placed the right probative value on it.

(d) Whether the trial Court used the imaginary scale to weigh the evidence on either side.

(e) Whether the trial Court appreciated upon the preponderance of evidence which side the scale weighed having regard to the burden of proof.

(f) Whether the trial Court, indeed made judicious use of seeing and hearing from the parties and the witnesses.

He referred the Court to the case of:

Anyakoro v. Obiakor (2005) 5 NWLR Pt. 919,507 at 5529;

Aguocha v. Aguocha (2005) 1 NWLR Pt. 906,165 at 192;

Attanda v. Ajani (1989) 3 NWLR Pt. 111,511;

Egonu v. Egonu (1978)11-12 5C 111.

Learned Senior Counsel for the Respondent submitted further that the learned trial Court considered the above criteria/factors in arriving at its decision that the Appellants are to refund the sum of N4, 607, 236.34K to the Respondent jointly and severally. He argued that the above being a finding of fact based on evidence before it, this Court is urged not to disturb such finding and to dismiss the Appeal.

P.I.N. Ikwueto SAN maintained that the trial Court is entitled without hindrance to select witnesses to believe and to disbelieve; facts established and facts unestablished and referred the Court to Ojo v. Philips (l993) 5 NWLR Pt. 296 Page 751 at 769- ).

He submitted that the instant Appeal has manifested a dearth of compelling evidence indicating erroneous appraisal of facts and erroneous conclusions. Learned Senior Counsel urged the Court to show the utmost restraint in interfering with the well considered findings of the learned trial Court.

Learned Counsel for the Respondent submitted further that the Appellants had failed to establish any perversity over the decision and conclusions reached by the learned trial Court. He referred the Court to State v. Ajie (1998) 9 NWLR Pt. 566 Page 495 on the Supreme Court explanation of the meaning of “perverse decision” and the cases of:

Incar Ltd. v. Adegboye (1985) 2 NWLR Pt. 8 Page453;

Atolagbe v. Shorun (1985)4 5C Pt. 1 Page 250 at 282.

P.I.N. Ikwueto SAN argued that the submission of learned Counsel for the Appellants to the effect that the issue of the absence of the parties at the valuation is not supported by any evidence before the Court but was raised suo motu by the trial Judge as the evidence of the parties is that they were present at the valuation, is in itself perverse.

He maintained that Page 149 of the Records is clear to the effect that only the brother of the Respondent was present (according to the police) at the evaluation exercise and that the Respondent’s brother was never a party to the case. Learned Senior Counsel argued that the finding of the trial Court on the above is consistent with the evidence led at the trial.

P.I.N. Ikwueto SAN urged further that the Court should dismiss this Appeal on the grounds that the Appellants have failed to establish any perversity or inability of the trial Court to avail itself of the opportunity of seeing and hearing the parties and their witnesses.

The evaluation of evidence is within the province of the trial Court and it has a primary responsibility to appraise and evaluate evidence both oral and documentary presented to it by the litigants for determination of the dispute between them.In Fashanu v. Adekoya (1974) 9 NSCC 327 at 331 the Supreme Court held:

“The appraisal of oral evidence and the ascription of probative values of such evidence is the primary duty of a tribunal of trial and a Court of Appeal would only interfere with the performance of that exercise if the trial Court had made an imperfect or improper use of the opportunities of hearing and seeing the witness.”The Supreme Court further said in Union Bank of Nigeria Plc. v. Ishola (2001) 15 NWLR Pt. 735 Page47 at 79 that-

“It is trite law that it is the primary function of a trial Court which saw and heard the witness to assess the credibility of those witnesses, and to believe or disbelieve them. See: Chinwendu v. Mbamali (1980) 3-4 SC 31. Consequently, it is not the duty of this Court to decide on whom to believe or disbelieve.”

The learned trial Judge made the following findings of fact at page 228 of the Record of Appeal that:-

“The 2nd Defendant accepted N1 million as rent on behalf of the Plaintiff, he gave N1, 000, 000.00 out of which he renovated the house for N170,000 and paid N100, 000 commission to agents, he did not get express or implied permission of the Plaintiff before paying out this money for that reason, the Court reject such payment.”

It is also the finding of the trial Court at page 232 of the Record of Appeal that:-

“In the face of the documentary evidence before this Court the 2nd and 1st Defendant cannot claim to have roofed the two houses. The Plaintiff maintained that she used David Daniel one of those working with the 1st Defendant to roof the house. She tendered the receipts from Lento Aluminum and the receipts with which she purchased woods. The Court hereby accepted that the Plaintiff roofed the houses.

If the 2nd Defendant claimed to have roofed the houses and the Court found out they did not roof the houses, it means he is not truthful.

The evidence given by the 2nd Defendant is not in total agreement with Exhibit A which is his own making, although he accepted receiving the money in Exhibit 5B he did not tell the Court whether it is part of the money he used in completing the house, the 2nd Defendant only acknowledged that he collected N7, 259, 400 plus the retention of rent which he put at N720, 000 making a total of N7, 979,400 collected from the Plaintiff.”

The trial Court went further to hold that:-

“After the Plaintiff completed the houses Exhibit Y was written to the Defendants to forward statement of account the 2nd Defendant ignored same, the 2nd Defendant has a duty to render account to the Plaintiff, the fact that the Defendants carried out some of the works as specified in Exhibit A the Plaintiff informed the Court that she did not do the ceiling of the two houses, but ceiling was included in Exhibit A and VI-V32, ceiling was part and parcel of the revised contract. It is therefore certain that the Defendants carried out some work, it would be wrong to say that they did not work at all. The scope of work carried out by the Defendants could have been known if the 2nd Defendant had replied Exhibit Y requesting him to render account.”

It was also the finding of the trial Court at page 234 of the Record of Appeal that:-

“The Court believed the Plaintiff when she told the Court that she spent N6 million to complete the houses, she tendered some receipts in evidence but does not include labour, the 2nd Defendant did not tender any receipt. There was no dispute as to whether the Plaintiff completed the two houses.”

In the instant Appeal, the trial Court after an exclusive evaluation of the evidence before it some of which I have reproduced in this Judgment and having evaluated the credibility of the witnesses made a conclusive findings of fact on them and gave its decision accordingly by accepting one version of the story of a party and rejecting the other version of the other party. Accepting one version of the story and rejecting the other is in order.

In Madumere & Ors. V. Okafor (1990) 3 NWLR Pt. 138 pages 314 the Supreme Court was faced with a choice of decision and it said:

“In the case in hand, there were two competing assertions founded on Exhibit C by the parties. The duty of the trial Court was to consider carefully and decide on the balance of probability which of the assertions to accept. This indeed, in my view, has done here and so the Appellants cannot be heard to complain.”

I am of the opinion that the trial Court carefully evaluated the documentary and oral evidence of the witnesses before it and I see no good or compelling reason why I should disturb the findings of fact of the trial Court.

In Ojo v. Philips (1993)5 NWLR Pt. 296 pages 751 at 768, it was held that:-

“It is settled that appraisal of the evidence is principally the function of the trial Judge and not that of the appellate Court, unless and except such findings are clearly wrong and perverse.”

In the instant case I shall show the utmost restraint and reject the invitation to interfere with the well considered findings made by the learned trial Court in this case.

This issue is resolved in favour of the Respondent.

Issue 2

“Whether or not the learned trial Judge was right in finding both the 1st and 2nd Appellant jointly liable.”

Learned Counsel for the Appellants, Ekenma James (Mrs.) submitted that the Respondent had admitted that it was the 1st Appellant that she had a contract with and that was why she instructed her Solicitors to address Exhibit Y terminating the contract to the 1st Appellant.

Learned Counsel maintained that the trial Court failed to consider the principle of Law that the agent of a disclosed principal is not liable under the Law.

He referred the Court to the cases of:

Orji v. Anyaso (2000) 12 NWLR Pt. 643 Pages 1 at 5;

Okafor v. Ezenwa (2002) 13 NWLR Pt. 784 Pg. 319 at 340,

Ekenma James (Mrs.) argued that the evidence of the 2nd Appellant is that he is the Managing Director of the 1st Appellant and he is therefore not liable under the Law for the wrongs of the Company. Learned Counsel referred the Court to the cases of:

Faith Enterprises Ltd. v. Basf (Nig) Ltd. (2001) 8 NWLR Pt. 714 Page 224 at 250;

Daniels v. Insight Eng. Co. Ltd. (2002) 10 NWLR Pt. 775 Page 231 at 248;

Tsokwa Oil and Marketing Co. v. UTC (Nig) Plc. (2002) 12 NWLR Pt. 782 Page 437 at 468.

Learned Counsel for the Appellants further submitted that the contract which is the subject matter of this case was made between the Respondent and the 1st Appellant; that the 2nd Appellant merely acted as the agent of the 1st Appellant; that the 1st Appellant is a juristic person and the conditions for piercing the veil of incorporation has not been met by the Respondent. He referred the Court to the case of Vassile v. PASS Industries Ltd. (2000) 12 NWLR Pt. 681 Page 347.

Ekenma James (Mrs.) maintained that Directors of a company are merely agents of the Company as the company itself cannot act in its own person for it has no person.

Learned Counsel urged the Court to find that the 2nd Appellant is an agent of a disclosed principal and ought not to have been joined in the first case as a party to the Suit and to also find that it was wrong for the Court to find the 1st and 2nd Appellants jointly and severally liable.

In his response, learned Counsel to the Respondent P.I.N. Ikwueto SAN submitted that the learned trial Court was right in ordering the Appellants to refund to the Respondent the sum of N4, 607, 236.34K being the money the Appellants received but not applied for the purpose for which it was received. He referred the Court to Section 290 CAMA and to the case of Agbanelo v. UBN (2000) 7 NWLR Pt. 666 Page 534.

Learned Counsel for the Respondent maintained that in this case, there is no dispute that the 2nd Appellant is the Chairman and Managing Director of the 1st

Appellant and that the 2nd Appellant is also the sole mind and will of the 1st Appellant. On that basis, he urged the Court to affirm the Appellants jointly and severally liable to the Respondent and to dismiss the Appeal.

P.I.N. Ikwueto SAN submitted that the 2nd Appellant is anxious and desperate to extricate himself from the Judgment sum because the 1st Appellant is in serious financial crisis and heavily in debt and by ducking under the veneer of corporate liability or agent of a disclosed principal to ensure that the Judgment obtained by the Respondent against them is fruitless. He referred the Court to the Appellants’ affidavit in support of their Motion for Stay of Execution.

Learned Senior Counsel urged the Court to disregard the Appellants’ contention and affirm the decision of the learned trial Court.

On the propriety of finding both 1st and 2nd Defendant/Appellants jointly liable, the trial Court In its ruling dated 24th October 2001 on the issue at page 126-127 of the Record of Appeal said as follows:-

“The contention of the 2nd Defendant is that the Plaintiff awarded a contract to the 1st Defendant Igwem & Co. Ltd. and throughout the duration of the contract the Plaintiff dealt only with the 1st Defendant and not with the 2nd Defendant, that the role 2nd Defendant played was agent of the 1st Defendant…….

It is noteworthy to mention that a Limited Liability Company like the 1st Defendant does not have hands to execute contracts; they must be executed on its behalf. The 2nd Defendant who collected the money on behalf of the 1st Defendant failed to disclose what he had done with the money.

The statement of claim and the counter-affidavit discloses some element of fraud in the transaction which therefore makes the 2nd Defendant a necessary party to this Suit by virtue of Section 290 of the Companies and Allied Matters Act. The Plaintiffs claim against the Defendants is for the refund of the money allegedly collected by the 2nd Defendant on behalf of the 1st Defendant since the 1st Defendant cannot speak, the 2nd Defendant has to speak for him.

The application to strike out the name of the 2nd Defendant from this suit is hereby dismissed.”

Section 290(c) of the Companies and Allied Matters Act stipulates that where a company with intent to defraud, fails to apply the money or other property for the purpose for which it was received, every Director or other Officers of the company who is in default shall be personally liable to the party from whom the money or property so received and not applied for the purpose for which it was received.

The case of the Plaintiff/Respondent is that the Appellants received her money to build two houses for her but failed to complete the project and she wants the Court to order the Defendant/Appellant to refund the balance of the money for the work not done.

The 2nd Defendant/Appellant is the Chairman and Managing Director of the 1st Defendant/Appellant and its sole mind and will.

The money paid to the 1st Appellant was paid through the 2nd Defendant/Appellant and he was the spoke person for the 1st Defendant/Appellant.

I am of the opinion that the 2nd Defendant/Appellant appropriately found jointly and severally liable for the refund of the funds not utilized for the project in which the 1st Defendant/Appellant was contracted to carry out but for which it failed to execute or partially executed.

In Agbenelo v. UBN (2000) 7 NWLR Pt. 666 Page 534 at 559-560 it was held that –

“A Company may in many ways be likened to a human body. They have a brain and nerve centre, which controls what they do. They also have hands which hold the tools and act in accordance with directions from the centre. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will.

Others are directors and managers who represent the directing mind and will of the company and control what they do. The state of the mind of these managers is the state of mind of the company and is treated by the law as such. So you will find in cases where the law requires personal fault as a condition of liability in tort, the fault of the manager will be personal fault of the company.”

This issue is also resolved in favour of the Respondent.

Issue 3

“Whether the Court was right to find for the Appellants an amount exceeding the Respondent’s claim before the Court.”

Ekenma James (Mrs.). Counsel for the Appellants argued that the Plaintiff/Respondent’s prayer before the trial Court is an Order of the Court compelling the Defendants/Appellants, jointly and severally, to refund to the Plaintiff/Respondent the sum of N10, 456, 391.84K received from the Plaintiff/Respondent for the completion of her buildings which was not done and

interest on the said sum at the rate of 21% per annum from 1st September 1998 until judgment is delivered and thereafter at the rate of 5% until the judgment sum is liquidated; but the trial Judge ordered that the Defendants/Appellants are to refund the sum of N4,607,236.34K to the Plaintiff/Respondent jointly and severally with 10% annual interest with effect from the 5th day of March 1998 till the 18th day of July 2006 and the Defendants/Appellants are to further pay another 10% annual interest on the principal sum until the Judgment is totally liquidated.

Learned Counsel submitted that the trial Court suo motu granted to the Respondent the interest from a date earlier than was prayed thereby awarding the Respondent more money than prayed.

Learned Counsel maintained that the two Million Naira collected as rent was received in November 1998 and that the evidence before the Court is that one Million Naira out of the amount was given to the Respondent while the balance was applied to the Respondent’s projects but the trial Court held that the Appellants did not obtain the consent of the Respondent to apply the money and added it to the monies the Appellants were ordered to refund to the Appellants.

Learned Counsel argued that by ordering the Appellants to refund the money and pay interest on the money from the 5th day of March 1998 implies that the Appellants have to pay interest on the money from a date earlier than the date the Appellants received the money.

Ekenma James (Mrs.) submitted that this is a gross miscarriage of justice and urged this Court to so hold.

In his response, P.I.N. Ikwueto SAN submitted that the Court below did not award the sum of N10, 968, 391.84K to the Respondent in excess of her claim as alleged by the learned Counsel for the Appellants.

He referred the Court to Pages 235-236 of the Record of Appeal on the award made by the trial Court.

Learned Senior Counsel submitted further that whilst dismissing the Respondent’s claim for special and general damages, the learned trial Court again emphasized that the Respondent is entitled to only N4,607,236.3K (sic) plus the interests thereon.

He contended that based on the foregoing, the learned trial Court never awarded the Respondent more than she claimed. Learned Counsel maintained that the Court awarded less instead.

P.I.N. Ikwueto SAN urged the Court to disregard the Appellants’ submission that the learned trial Court assumed the role of a Father Christmas.

Where the claim before the Court is for damages arising from a breach of contract, the rule to be applied is restitutio in integrum that is the Plaintiff shall be restored, as far as money can do it, to the position in which he would have been if the breach had not occurred. See: Udelagu v. Benue Cement Co. Plc. (2006) 2 NWLR Pt. 965 page 600; Okongwu v. N.N.P.C. (1982) 4 NWLR Pt. 115 page 296.

Also where a party who has paid money to the other party for a consideration that has totally failed under the contract is entitled to claim the money back from the other party. See Haido v. Usman (2004) 3 NWLR Pt. 859 page 65.

The rule governing the time of assessment of damages is that damages are to be assessed as at the time when the cause of action arose, that is, the date of the breach. The Court has power however to fix any other appropriate date if the date of breach will work injustice.

The claim of the Plaintiff/Respondent as per the Statement of claim on page 2 of the Record of Appeal reads:-

“2. An Order of this Honourable Court compelling the Defendants, jointly and severally, to refund to the Plaintiff the sum of N10, 391.84 received from the Plaintiff for the completion of her buildings which was not done and interest on the said sum at the rate of 21%per annum from 1st September 1998 until judgment is delivered and thereafter at the rate of 5% until the judgment sum is liquidated.

3. The sum of N51, 000, 000 (fifty one Million Naira) as Special and general damages for breach of contract.

Particulars of Special Damages:

(a) Air fares – N500, 000.00

(b) Hotel Accommodation – N350, 000.00

(c) Domestic Transportation – N75, 000.00

(d) Meals – N75, 000.00

Sub Total – N1, 000, 000.00

General damages – N50, 000.00

TOTAL – N51, 000, 000.00

4. The cost of this action.”

At pages 235-236, the trial Court entered Judgment on behalf of the Plaintiff/Respondent against the Defendants/Appellants as follows:-

“The two Defendants are to refund the sum of N4, 607, 236.34K to the Plaintiff jointly and severally with 10%annual interest with effect from the 5th day of March 1998 till 18th day of July 2006, the two Defendants are to further pay another 10% annual interest on the principal sum until the judgment is totally liquid-dated.”

Also while dismissing the Plaintiff/Respondents claim for Special and General damages, the Court held that-

”The only Special damages which the Plaintiff is entitled to is N4,607,236.3K plus the 10%annual interest with effect from 5th day of March 1998 till 18th July 2006 and another 10% annual interest on the principal sum with effect from today 18/07/2006 till the Judgment is Liquidated.”

It is clear from the facts presented before the trial Court that it has not made any award to the Plaintiff/Respondents in excess of what claimed; This last issue is also resolved in favour of the Respondent.

The judgment of the trial Court is hereby affirmed and this Appeal is dismissed as it lacks merit. There shall not be any award as to costs.

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Other Citations: (2009)LCN/3355(CA)