Mantec Water Treatment Nig., Ltd. V. Petroleum (Special) Trust Fund (2007)
LawGlobal-Hub Lead Judgment Report
MUNTAKA-COOMASSIE, J.C.A.
The plaintiff in his amended Statement of Claim dated 9/2/2001, claimed against the defendant as follows:-
(i) A DECLARATION that by failing to pay to the plaintiff the sum of N416,166.00 due and owing to her for works properly carried out under the contract between the Defendant and the plaintiff, the Defendant is in breach of contract and the plaintiff is entitled to damages for loss of profit;
(ii) The sum of N5, 000.000, being general damages for breach of contract and loss of profit.
(iii) The sum of N416, 166.00 being outstanding sum due and payable to the plaintiff for work properly carried out and certified under the contract between the Defendant and the plaintiff.” See pages 35 – 37 of the Record.
The defendant filed its Statement of defence dated 28/6/2002 wherein he counter-claimed against the plaintiff as follows:-
“WHEREOF the Defendant counter-claims against the plaintiff the sum of N13, 089,349.69k, being the excess money paid by Defendant to the plaintiff over and above the value of Job done by the plaintiff”. See pp. 12 -14 for the Statement of defence and counter-claim of the Record.
As a result of the Counter-Claim, the plaintiff filed a reply to the Statement and defence to counter claim, dated 15/10/2002. Both parties thereafter called their respective witnesses.
Plaintiffs PW1, John Okulola Dairo, is the plaintiff’s Managing Director and he knows the Defendant who is a Statutory body who carries special project for the Federal Government. He stated that the Defendant awarded to the plaintiff rehabilitation of Old boreholes and construction of new ones in Kwara State, for a total sum of N53.8 Million, which was reviewed to N54.4m. The letter of the award of contract dated 4/5/98 between the plaintiff and the defendant was admitted in court as Exhibit 1.
The plaintiff moved to the site, which covered seven Local Governments, each having five (5) boreholes. The defendant engaged a Consultant who Counter-signed the pump-test carried out by the plaintiff. The file containing the pump test carried out was admitted as Exhibit 2.
PW 1 also stated that he is a registered Engineer. He testified that the total value of the work done was N39.8m. The Bills of quantity of the job done which was contained in a file was tendered as Exhibit 3.
The defendants paid a total N39.4m leaving a balance of N416, 000.00. In October 2001, the plaintiff received a letter alleging that she had been overpaid to the tune of N12m and asking for refund; which letter was sent to the plaintiff’s lawyer for reply. The reply was tendered in court as Exhibit 4. He denied that the plaintiff stopped work when the amount due was N26m.
Under cross examination he stated that plaintiff was incorporated in 1985. He also stated that Advance Payment is customary in it’s relation with the Defendant, and that the N39m paid the plaintiff was an advance payment, and that it was agreed that work would be done and Certificate would be raised while deducting money from the advance payment. He denied that evaluation of the job done was carried out.
The defendant called DW1, one Buba Bogama Godabe, and a Civil Servant who knows the plaintiff. He agreed that the defendant awarded the contract for sinking of boreholes to the plaintiff in 1988 and the total contract sum was N54, 413,127.45k and a total sum of N39, 433,124.69k was paid by the defendant to the plaintiff. This amount was paid in three installments as advances to tile plaintiff. Advances arc moneys released by the employer to the contractor to enable the contractor execute the jobs and in this case these moneys were released sequent to Certificate prepared based on input supplied by the contract. The Certificate raised with the Voucher of payment are admitted as Exhibits 7, 7A & 7B, and 8A and 8B respectively. Further payment has been stopped. P.T.F. was scrapped and all projects suspended and stopped. As at stoppage of work the total value of the work done by the plaintiff was N26, 365,775.00k that was covered by Certificate No.3 i.e. Exhibit 7C. The total value of work done was on Exhibit 7B. P.T.F. advances N39m and the plaintiff only justified N26m, and the balance outstanding in favour of the defendant is N13, 067,349.69k. He testified that Exhibit 3 was prepared by the plaintiff itself. Some of the items in Exhibit 2 were countersigned by the defendant’s Consultant while some were not signed particularly pages 133 – 142. He also stated that Certificate Exhibit 7B took care of all the aspects of the plaintiffs work.
Under cross examination this witness admitted that he is a lawyer and not an engineer. Though he had no training in quantity Surveying but he read the records and they were under his care. He stated that Bills of quantity is the 1st step taken by the Contractor and supplied to the employer, while the 2nd stage is the total value of what is to be executed quantified by the employee and finally the employer raises a Certificate certifying those bills, thereafter releases money as advances to cover the Bill as in Exhibits 6, 7 and 8. He stated however that Exhibit 3 is not known to the defendant because it is not signed by the defendant. The reports of the Consultant on which Certificate i.e. Exhibit 7B was issued were tendered as Exhibits 9, 9a, 9b and 9c. The above is the brief of what had transpired in court. See pp.40 – 50; and pp. 51 – 57 of the Record of Proceedings.
The parties thereafter closed their respective cases and submitted written addresses. See for the defendant’s address pp.61-66; and pp.67 -74; and the defendant’s reply on PP.75 -77 of the Record.
The trial Judge in a considered judgment delivered on 29/7/2005 wherein he dismissed the plaintiff’s case and granted the defendant’s counter claim. See pp. 80 – 96 of the Record of proceedings. In conclusion, the learned trial Judge held on p. 96 thus:-
“In contrast to the Oral and documentary evidence produced by the defendant, the plaintiff has no thing that can match the defendant’s position. Exhibit 3 relied upon by the plaintiff was described by the defendant as in house job by the plaintiff herself. I agree with this contention as it was not counter signed by the officials of the defendant to clothe it with agarb of authenticity.
I therefore reject the claim of plaintiff for an Extra sum of N416, 166.00 being outstanding sum due and payable to the plaintiff for work carried out by the plaintiff for the defendant. Rather I accept the Claim of the defendant that it advanced the sum of N39, 433,124.69 in 3 installments and the work done eventually was in the sum of N26, 365, 775.00.
The plaintiff is therefore hereby ordered to pay back to the defendant the sum of N13, 069,349.69 being the excess money paid by the defendant to the plaintiff.
Being dissatisfied with this decision, the plaintiff hereinafter called the appellant appealed to this court by a Notice of appeal dated 14/10/05 containing six grounds of appeal, they are reproduced hereunder without their particulars thus:-
“GROUND ONE: ERROR IN LAW
The learned trial judge erred in law when he purported to take judicial notice that “PTF has been scrapped contrary to the true situation and this has occasioned a miscarriage of justice.
GROUND TWO: ERROR IN LAW
The learned trial judge erred in law when he held that the defendant has been scrapped when there was no evidence of such before the court.
GROUND THREE: ERROR IN LAW
The learned trial judge erred in law when he held that PTF has been scrapped at one breath and at another proceeded to make award to the body that was no longer in existence and thereby occasioned a miscarriage of justice.
GROUND FOUR: ERROR IN LAW
The learned trial judge erred in law when he held that the value of work done by the plaintiff was only worth N26, 365,775.00 when there was no evidence from the defendants to show the extent of work that had been executed.
GROUND FIVE: ERROR IN LAW
The learned trial judge erred in law by dismissing the Plaintiff’s claim without properly evaluating the evidence before him and thereby came to a wrong conclusion leading to a grave miscarriage of justice.
GROUND SIX: ERROR IN LAW
The judgment is against the weight if evidence. Other grounds of appeal may be filed upon the receipt of the record of appeal.”
In accordance with the Rules of this court Order 6RR2 & 4 of the Court of Appeal Rules both parties filed and exchange briefs of argument. The appellant in its Brief of argument dated 4/4/06 and filed on 6/4/06 formulated three (3) issues for determination as follows:-
- Whether the Petroleum Special Trust Fund has been scrapped.
- Whether it is proper to grant judgment in favour of a party that has been scrapped and ipso existent.
- Whether the value of work done by the appellant was Only N26, 365,775.00 in view of the evidence before the court.”
The defendant, hereinafter referred to as respondent, in its Brief of argument dated and filed on 27/10/06 also formulated three (3) issues for determination thus:-
(i) Whether the learned trial judge was in error when he took judicial Notice of the fact of the scrapping of the Respondent by the Federal Government of Nigeria.
(ii) Whether if the answer to issue I above is negative, such an error is sustainable to have changed the course of proceedings at the trial court in favour of the Appellant; and
(iii) Whether by the available evidence before the trial court oral and documentary was the trial court not right to have preferred the case of the Respondent by granting its claims,”
Now to the arguments and the submissions of both counsel on the issue submitted to us.
The appellant, on issue No. I, submitted that the defendant is a creation of a statute i.e. Petroleum Special Trust Fund Decree No.25 of 1994, which has not been replaced and as such it is still existing. That a government directive scrapping it without repealing the statute is not sufficient. Therefore, a court cannot take judicial Notice of such directive without the production of the statute enacted by the Legislature repealing or scrapping it.
The appellant pointed out that throughout the proceedings the respondent never challenged the competency of the action on the ground that the defendant was no longer in existence. He urged this court to hold that P.T.F. is very much alive. This court should therefore answer issue 1 in the negative and to allow grounds 1 and 2.
On the second issue the appellant submitted that if the defendant/respondent was no longer in existence, the trial court would be wrong to have made an award in favour of a non-existing body. He cited the cases of MANAGEMENT ENTERPRISES LTD. V. OTANSANYO (1987) 1 NSCC (VOL.19) 577 AT 584; and BANK OF BARODA V. IYALABANI LTD. (1998) 2 NWLR (PART 539) 600 AT 613. It was therefore submitted that the proper Order the lower court should have made was to strike out the case. He relies on the following cases:-
MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR 587 AT 595 Learned counsel again submitted that where a party to a case dies, the action becomes incompetent unless steps were taken to substitute the dead party with another person. He drew our attention to the following authorities. BINTUMI V. FANTAMI (1998) 13 NWLR (PART 581) 254/271; AKUMOJU V. MOSADOLORUN (1991) 9 NWLR (PART 214) 236.
On the third issue, the appellant submitted that it was wrong for the lower court to have preferred the evidence of DW1 to that of PW1, when DW1 is not an engineer but a lawyer who is not an expert on the subject matter of this case. He referred to Exhibits 1, 2 and 3 and submitted that the evidence of PW1 on the value of the job done was overwhelming. The Interim Certificate which DW1 tendered only showed the payments made to the appellant i.e. Exhibits 6, 7 and 8. It was therefore submitted that Exhibits 6, 7 and 8 could not be evidence that the total value of work done was N26, 365,775.00k. He submitted again that there was no magical powers in the words “I believe” or “I prefer” there must be good reason for believing or disbelieving” the evidence from any side. He relies on the case of AKPORENYE V. OKUMAGBA (1999) 1 NWLR (PART 586) 271/281. It was therefore submitted that the trial court did not show any reason for preferring the evidence of DW1 to that of PW1. He therefore urged us to allow the appeal.
The respondent submitted on issue 1 that the Federal Government came out with a policy at its inception to scrap the activities of PTF and render its activities moribund (no longer active). Hence the trial court ought to take judicial Notice of the government policies. He referred to Section 73 (2) of the Evidence Act and submitted that the trial court ought to take judicial notice of matters of history. He cited the cases of UWAIFO V. A-G BENDEL STATE & ORS (1982) 7 S.C. 124; MAURICE DUNGBO V. CHIEF STEPHEN IDUGBOE (1983) 2 S.C. 14 to support a situation where the courts took judicial Notice as a fact of Local history. It was thus submitted that the scrapping of the respondent only affect the functions to be carried out.
On the 2nd issue, he submitted that if the trial court was wrong to hold, as it did, that the Respondent had been scrapped, which is denied, such an error is not sufficient to render the proceedings or the judgment being set aside by this court it is not every error or mistake contained in a judgment that will result in an appeal being allowed. The eases of AJUWON V. AKANNE & 1 ANOR (1993) 9 NWLR (Pt. 316) 152 AT 205; B & C KRANS THOMPSON ORGANISATION LTD V. UNIVERSITY OF CALABAR [2004] 4 S.C. (PART 165) 77 were cited.
On the third issue, it was submitted that the trial court Judge properly evaluated the evidence of both parties before making his findings. He referred to the trial court’s findings on Exhibit 3 that was on-in-house-job, was supported by the evidence and this fact that it was not counter-signed by the respondent. The respondent’s counsel cited the cases of ONISADOA V. ELEWAYS (2006) 7 S.C. (PART 11) 53; and MAGAJI AND ORS V. ODOFIN (1978) 4S.C. 91 AT 93. The respondent then urged this court to dismiss the appeal.
Firstly, the paramount issue in this case, is to examine the oral evidence adduced by the parties along side, Exhibits 3, 7, 7A, 7B, 7C, 8, 8A, 8B, 9, 9A, 9B and 9C, and to determine whether the holding of the trial court that the appellant has not worked up to the amount of N39, 8m paid to the appellant as advance payment is correct.
The fulcrum of Issue No.1, in both Briefs is the same. It was submitted by the appellant that the Petroleum Trust Fund hereinafter referred to as P.T.F. is a creation of a statute by virtue of Decree No. 25 of 1994 now contained in the latest volumes of the Laws of the Federation as Cap. 14. Another interesting contention is that of the appellant’s counsel to the effect that P.T.F. has not been scrapped, it is still intact and it remains a body corporate with the perpetual succession and may sue and be sued in its corporate name. If it is a fact that it has been scrapped it would not remain in the most recent volumes of the Laws of the Federation. Learned counsel forcefully also submitted that if it was scrapped which law did that? Counsel further argued that an act had repealed it, therefore the trial court should not have taken Judicial Notice of its scrapping.
On the other hand learned counsel for the appellant contended that the evidence of DW1 to the effect that the Federal Government directed that P.T.F. be scrapped and all the projects suspended and stopped is a mere viva voce evidence of the witness without producing or tendering of the enactment or statute that scrapped the body. That cannot be correct and the court should not accept it and rely on same to decide this case the way it did. He further contended that the same DW1 testified lo the effect that he is a Civil Servant serving with the defendant (P.T.F) this points to the fact that P.T.F. was still in existence at the time the trial court considered and delivered its judgment. Learned counsel for the appellant slightly attacked the position taken by the lower court which says that the scrapping of the P.T.F. is a notorious fact in this country that court cannot but take judicial notice of it. He submitted that the court went out of its way and considered extra judicial matters which it heard and observed without having before it a law which repeals it. He relied on the case of KWARA INVESTMENT CO. LTD. VS. GARBA (2000) 10 NWLR (PART 674) 25/33 and urged us lo hold that until a corporate body is wounded up it continues to retain its corporate identity given to it by its enacting (parent) law.
The phrase used by the learned counsel to the respondent and the trial court appears to me difficult for any meaningful meaning. The word scrap or scrapping may only mean discarding or removing. It sounds very narrow.
Scrapping means to decide not to use a plan, system or institution because it is not particular or even to get rid of an old machine, vehicle etc, and use its parts in some other way. See p. 127 of Longman Dictionary of Contemporary English.
Learned counsel for the respondent under the same issue contended per contra citing Section 73(2) of the Evidence Act to submit that the thrust of the scrapping of the activities of the respondent which is notorious to the general public that the trial court was justified in taking judicial Notice of scrapping of the P.T.F. Referring to F.S. UWAIFO V. A-G BENDEL STATE & ORS. (1982) 7 S.C. 124 and MAURICE DUMGBO V. CHIEF STEPHEN ONGBOE (1983) 2 S.C. 14 where the court took judicial Notice of the fact that upon coming into power the Federal Military regime dismissed and removed many public servants from their offices. Learned counsel cited the case of A-G LAGOS V. HON. DOSUNMU (1989) 3 NWLR (PART 111) AT 552 to submit further that on a matter of administrative policy of government that courts are precluded from taking a stand capable of negating the effectiveness of and functioning of such policy. He urged the court to hold that the learned trial judge was right to have taken judicial Notice of the facts of scrapping the respondent.
On the equation of the P.T.F. with a corporation under the Companies and Allied Matters Act 1990 (CAMA) and the submission of the learned counsel to the appellant that by the scrapping of the respondent she ceased to exist and the illegal award of the judgment on the counter claim to the said respondent it was the respondent’s contention that taking into consideration the definition of the word “scrap” that that word does not envisage complete extinction of the respondent but that it is akin to an unhealthy corporation which is not stripped of its right to sue and be sued. He relied on the case of:-
INTERCONTRACTORS (NIG) LTD V. N.P.F. (1988) 2 NWLR (PART 76) … based on the Supreme Court’s decision in the above case learned counsel then submitted that this court should hold that the decision of the Federal Government on the respondent to suspend its activities would only affect future activities and not past activities which had been carried out prior to the suspension.
Relying on the evidence of DW1 at page 52 of the Record he submitted on the authority of F.B.N. PLC. V. ONOKO KOGA (1999) 12 NWLR (PT. 950) 120 that the conclusion of the trial Judge on the facts of scrapping of the respondent was done upon the uncontroverted evidence of the Dw1 which was deemed admitted by the plaintiff and should not be made an issue on appeal. He therefore urged this court to uphold the decision of the trial judge and dismiss the appeal.
Throughout the proceedings the fact that the P.T.F. was scrapped has not been directly thrashed out by the parties. However it was pleaded in paragraph 11 of the statement of defence that:-
“11. The Defendant in answer to paragraphs 13, 14 and 15 of the Statement of claim (sic) that it did not breach any of the terms of the contract and that the stoppage of the project was occasioned by force majeure, details of which fact will be led at the trial.” This I hold has alluded to the fact of scrapping the P.T.F.
It is at page 52 of the Record of Proceedings however that the respondent’s witness (the DW1) in the course of his evidence in-chief, after tendering receipts and payment vouchers with which monies were paid to the plaintiff stated thus:-
“The payment has been stopped. It is a Federal Government directive; Petroleum Trust Fund was scrapped and all projects were suspended and stopped.”
Neither the plaintiff nor her counsel made any effort to challenge the above testimony of the DW1, the trial court had therefore the right and bounding duty to accept same as the truth and state of affairs on the contested issue. The law is that where a piece or parcel of evidence is elicited by a party and such is neither challenged nor controverted the court is bound to ascribe credibility to it except if it is inherently incredible or offends rational conclusion or state of physical things.
In the case at hand, the plaintiff/appellant nay his counsel had every opportunity to cross-examine the said witness but failed to do so and the court rightly believed the truth of the evidence. See:-
MAINAGGE V. GWAMNA (2004) ALL FWLR (PART 222) 1617 AT 1626;
OMOREGE V. LAWANI (1980) 3 – 4 S.C. 108;
OKOEBOR V. POLICE COUNCIL (2003) FWLR (PART 164)198;
ASAFA FOODS FACTORY V. ARLAINE (NIG) LTD. (2002) FWLR (PART 125)75.
The learned counsel for the respondent was therefore on a firm ground when he contended that the appellant ought to have made the scrapping of the respondent an issue of appeal, relying on the case of F.B.N. PLC V. OWOKO KOGA Supra.
Be that as it may the learned trial judge, at page 94 of the Record, seemed to have based his decision also on judicial notice which is a matter of law.
The question to be paused and answered now is whether the issue of “Scrapping” of the P.T.F. is a fact to have taken judicial Notice of without the production of the law or even the “Proclamation” from Mr. President to that effect. Ordinarily by virtue of Section 74(2) of the Evidence Act the courts are enjoined to in all cases in subsection (1) on matters of Public History, Literature, Science or Art to resort for its aid to the appropriate books or documents of reference on the subject.
Under subsection (3) thereof the court, if called upon by any person to take judicial Notice of any fact, may refuse to do so unless and until such person produced any such book or document as it may consider necessary to enable it do so.
In the present case, neither the law nor document which scrapped the P.T.F was tendered neither did the court insist on the production of same. The law allows him the discretion to take judicial notice of historical events in this country and whether the Petroleum Trust Fund has been scrapped or not is immaterial, even the defendant/respondent who relied on the fact of scrapping of P.T.F. in her defence has turned somersaulted by introducing the issue of un-healthy corporation and receivership/liquidation of the P.T.F.
He has indirectly made a salient point when relying on the case of INTERCONTRACTOR (NIG) LTD. V. N.P.F. (1988) 2 N2LR (PART 76) submitted that the scrapping of the respondent does not affect past functions or activities carried out by the respondent.
My Lords, since the trial court relied on the contradicted evidence of the DW1 in its judgment, the issue of judicial Notice in immaterial to the determination of the appeal, as the respondent has not extinguished its existence. They also agree that the right and liabilities that accrued to the appellant and the respondent have not been extinguished as far as the contract, the subject matter of this suit, is concerned.
I am strengthened on the stance we took by the constitutional and statutory provisions. See for instance Sections 316(1) and 317 of the 1999 Constitution of the Federal Republic of Nigeria. They are hereunder reproduced thus:-
“316-(1) Any office, court of law or authority which immediately before the date when this function comes into force was established and charged with any function by virtue of any other Constitution or law shall be deemed to have been duly established and shall continue to be charged with such function until other provisions are made, as if the office, court of law or authority was established and charged with the function by virtue of this Constitution or in accordance with the provisions of a law made thereunder.
317 (1) Without prejudice to the generality of section 315 of this Constitution, and property, right, privilege, liability or obligation which immediately before the date when this section comes into force was vested in, exercisable or enforceable by or against:-
(a) the former authority of the Federation as representative or trustee for the benefit of the Federation;
(b) any former authority of a State as representative or trustee for the benefit of the State,
shall on the date when this section comes into force and without further assurance than the provisions hereof vest in, or become exercisable or enforceable by or against the President and Government of the Federation, and the Governor and Government of the State, as the case may be.”
By these provisions, any liability or right which might have accrued to the Federal Government or any of its Agencies before the coming into effect of the constitution shall he deemed to have been inherited by the successors to the former Government. Section 316 on the other hand, saved pre-existing authority prior to the constitution. Thus, assuming, as was contended earlier, the concession by the learned counsel for the respondent, that the P.T.F. was scrapped and therefore was no more in existence could the scrapping have affected contracts duly entered into by the said body or authority? I think not. It was submitted that the sections above quoted were inserted in the constitution to avoid situations like we have found ourselves in where the P.T.F. had entered into a contract with the plaintiff/appellant for sinking of boreholes and repairing of old ones and the plaintiff contends that it has performed its part of the bargain (contract) and is entitled to the contract price whereas the defendant/respondent pleads force majuere to defeat the claim of the plaintiff/appellant.
It is clear and I agree with the respondents’ counsel submission to the effect that the scrapping of P.T.F. would not affect contractual obligations entered into prior to the scrapping exercise.
To further support this position, Section 6(1) of the Interpretation Act Cap 192 Laws of the Federation of Nigeria explicitly states that:-
“S.6(1) The repeal of an enactment shall not:-
(a) …
(b) affect previous operation of the enactment or anything duly done or suffered under the enactment.
(c) affect any right, privilege, obligation, or liability accrued or incurred under the enactment.
(d) affect investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability … and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and such penalty may be imposed as if the enactment had not been repealed. See OLUTOLA V. UNILORIN (2004) 18 NWLR (PT.705) 416 S.C.”
I have therefore carefully considered the submissions of both counsel and regret to say that the trial judge’s stance could be dangerous. It lacks consistency. As could he gleaned from the judgment the learned trial judge held in one breath that the respondent had been scrapped and perhaps repealed and the contract between the parties were thus frustrated but continued to dish out judgment in favour of the scrapped party by granting its counter-affidavit in the sum of “N13,067, 749.69. I should have thought that since the P.T.F. was scrapped and dead the trial court or the respondents’ counsel should have taken steps to cause “Substitution” to be effected. Since the P.T.F. as it stood then lacked capacity to sue and definitely that court lacked the jurisdiction to hear the matter as such-
MADUKOLU V. NKEMDILIM SUPRA and MANAGEMENT ENTERPRISES LTD V. OTUNSANYA (1987) 1 NSCC (VOL.18) 577 AT 584 and BANK OF BARODE V. IYELABAIN LTD. (1998) 2 NWLR (PART 539) 600/613.
That being the case, and considering issues 1 and 2 in the appellant’s Brief I hold that it may not be proper for the trial court under the circumstances of this peculiar case to hold that P.T.F, has been scrapped or repealed. It was only made impotent and moribund. Its future activities are affected and cannot be properly exercised. Its previous activities cannot be jettisoned.
My Lords, we just have to answer the appellant’s issues one and two negatively. I hold therefore that the judgment of the trial court wherein he granted the counter-affidavit of the respondent must and is hereby set aside.
On issue No.3, learned counsel on behalf of his client contended that it was wrong for the trial court to have preferred the evidence of DW1 to that of PW1. I think I will agree with the stance taken by the appellant’s counsel. First the evidence of the DW1 is shaky and never credible. He testified in an area which he is a stranger. He is not an engineer by profession. How can he correctly testify to have knowledge? I agree that Dw1 is a lawyer by calling; he can possibly provide skillful evidence and ex partee in a legal issue, because he belongs to a legal and noble profession. It is a misplaced priority for any court to accept and rely on evidence of an engineer or non-lawyer in a matter which requires strictly legal knowledge.
Above all, the PW1 testified consistently vis-Ã -vis the value of the work done by the plaintiff/appellant. I accept the fact that exhibits 6, 7 and 8, therein tendered clearly showed the payments only made to the appellant, namely, N26,365,775.00k I looked at these exhibits and discovered that they are only concerned with the amount paid to the plaintiff by the defendant and not on the value of the job done by the appellant herein. The evidence of PW1 in court is self explanatory and over whelming that the plaintiff has worked assiduously and the defendants personals had certified to that effect. The details of the contracted for together with the cost of is as contained in the exhibit one tendered by the plaintiff witness while testifying and there was no resistance and or objection emanating from the defendant. There is no scrap of challenge to this evidence and no cross-examination was forth-coming. I think since the respondent refrained from cross-examining the PW1 on that issue I think this court is entitled to hold that PW1 told the court the truth. (Underlining by me). AMADI V. NWOSU (1992) 5 NWLR (PART 241) 273 AT 284 where Nnaemeka-Agu JSC has this to say:-
“It is settled principle of law that where an adversary or a witness called by him testifies on a material fact in controversy in a case, the other party should, if he does not accept the witness’s testimony as true, cross-examine him on that fact, or at least show that he does not accept the evidence as true.
Where as in this case, he fails to do either, a court can take silence as an acceptance that the party does not dispute the facts. After all, one of the veracity of a witness. See AJAO V. AJAO (1986) 5 NWLR (PART 45)802 …”
Also in the case of BIJOU (NIG) LTD. OSIDAROHWO (1992) 6 NWLR (PART 249)643/651, ADIO JSC held thus:-
“Evidence which is unchallenged and uncontradicted ought to be accepted if found credible as there is nothing on the other side to balance.”
The evidence of PW1 in court is overwhelming as to the detail work done in line with the contents of the contract entered by the parties, namely, the contract was for the construction of 35 boreholes and the renovation of 35 old ones in seven Local Government Area in Kwara State. Being an Engineer the PW1 described the process involved in both the construction of a new borehole and the renovation of the old one, with their respective costs were displayed in a minute details in exhibit 1. DW1, not being an engineer, testified that he is ignorant of the process involved in digging of boreholes.
Furthermore, the plaintiffs witness testified to the extent of work accomplished in the Seven Local Government Areas and state the pump tests carried out on the boreholes. It is amazing and at the same time satisfactory for one to have a look at Exhibits 2, 3, 4 and 5. He compared the original work awarded them and the work or job executed and their costs. PW1 also stated that they dug the total depth of 1,386 metres. I therefore hold that the defendant on the face of exhibit 3 cannot but accept that the appellant had dutifully performed what was expected of him under the contract. It is clear also from the defendants’ evidence of DW1 that it was the P.T.F. consultant who prepares, after supervision of the work, the valuation report without in put from the contractor and that the contractor is paid based on the valuation report issued by the defendant consultant. The defendant/respondent therefore under paid the plaintiff to the time of N416, 166,00, having executed job of which value is N39,849,290.00. The evidence of the respondent and their submissions lack credibility. Same is discarded and rejected.
Taking into consideration the evidence of DW1 and the total submissions of the respondents’ Brief on the issues formulated by them and the submissions of the appellant’s counsel I hold that all the issues are negatively answered. The counter-claim has no leg to stand on, same is therefore dismissed. The balance of the work done and certified by the defendants’ supervisor and consultant N416, 166.00 is outstanding in favour of the appellant and must be paid to the plaintiff, now appellant.
What remains to decide is whether or not the appellant is entitled to any damages, special or general. The amount being paid to the plaintiff, by the evidence, is advance payment to enable the plaintiff execute the contract. Both parties are ad idem on this point. There is no acceptable evidence therefore to suggest that the plaintiff borrowed money to execute the work done, the issue of interests to be charged on the amount borrowed by the lender does not arise. See exhibit 7B and 7C. I hold in passing that there is no significant evidentiary value to be attached to the piece of evidence in exhibit 3 to the effect that it was an in-house job. It has no meaning to us. In the case at hand there is no credible oral evidence to challenge the documentary evidence so the issue of making the documentary evidence as a hanger to assess the oral evidence does not arise at all. That being the case, ABATAN V. AWUDU’S case supra is not apposite. I agree also that the contract was repudiated deliberately by the Federal Government so to speak by making the P.T.F. impotent. The stoppage can not in any way be described as a result of force majeure they only tried to escape its obligations under the contract by claiming force majeure. I think there is a fundamental breach on the part of the respondent. In a normal situation where the contract was repudiated by the defendant one would have considered the loss of profit which the plaintiff would otherwise have earned. This is however abnormal situation where the defendant in its magnanimity allowed advance payment, similar to mobilization fees, and to maintain the posture lip to the end. The plaintiffs did not deny the fact that they enjoyed this advance payment throughout and could not adduce evidence that they have gone borrowing. Moreover there is no evidence of the interest rates charged. The facts of this case are different from that of UKOHA V. OKORONKWO (1974) NSCC (VOL.7) 367 AT 371 cited by the appellant in the lower court.
I must say that the appellant cannot even dream of having special damages from this court. The law, I think it goes without saying, is whoever wants special damages must endeavour to prove it strictly and specifically. There must be evidence in court to establish clearly that he suffered such damages as he claimed. In other words the person claiming such special damages must establish his entitlement to that type of damages by credible evidence otherwise the general acceptable law of evidence as to proof by preponderance or weight usual in civil cases operates. I am fortified by the decision of the Supreme Court in the case of SHINJIRIN V. ELIAS (1970) 1 ALL NLR 153 AT 156 per Coker JSC.
In fact what is required is qualitative and credible evidence in order to establish entitlements to special damages. See ODULAJA V. IIADDED (1973) 1 ALL NLR 191 AT Pt. 196. In the appeal before us there is no such credible evidence to entitle the appellant for special damages. Neither documentary evidence nor oral was forth coming, so the award of special damages in this matter is ruled out.
Proof however of general damages does not require the strictness in proof of special damages. The only requirement in the award of general damages is that such award shall not be manifestly too high or manifestly too little or not erroneously assessed. See IMANA V. ROBINSON (1979) 3-4 S.C. 1; ABAJE V. NAMES (1967) NMLR 49; and S.P.D. (NIG.) LTD. V. TIEBO (2005) 32 WRN (VOL.32) P.1 AT 11-12.
Considering the fact that the lower court’s judgment was against the appellant no damages special or general can be expected to be awarded in favour of the appellant. The appellant, my Lords, is entitled to some damages, namely, general damages for the breach of contract duly entered into by the respondent.
For the avoidance of doubt the appeal is meritorious, same is allowed. The decision of the lower court is set aside. The value of work, executed by the appellant was N39,849.290.00 the outstanding balance which is N416, 166.00 on job executed and properly certified be paid to the appellant. The appellant is awarded N500,000.00 general damages and N10,000.00 costs of the litigation.
Appeal allowed.
Other Citations: (2007)LCN/2223(CA)
