National Bank Of Nigeria Ltd. V. P.B. Olatunde & Co. Nigeria Ltd. (1994)

LawGlobal-Hub Lead Judgment Report

OGWUEGBU, J.S.C.

The defendants awarded a building construction contract of their bank building at Ilorin, Kwara State to the plaintiffs for the sum of N451,857,22. The contract was stated to be in writing. By a letter dated 13th April, 1981 written by the agent of the defendants – Architects Co-design, the contract sum was revised from N451,857.22 to N1,047,637.06. There is the Bill of Quantities which was admitted in evidence as “Exhibit 4.”

The defendants paid the sum of N977,460.83 in respect of Valuation Certificates numbers 1 to 26. On the whole, Architects Co-design issued a total of 27 Valuation Certificates.

Clause II of Exhibit 4 (Bill of Quantities) provides that the defendants could alter and vary the contract and payments for work done under the contract was to be made upon the issuance of Valuation Certificates from time to time by the defendants’ Architects and Quantity Surveyor. The plaintiffs maintained that Valuation Certificate No. 27 issued to him was for N294,552.25 and that this amount had been paid. The defendants however, contended that although that amount is reflected on the Valuation Certificate No. 27, it was wrong because the authorised contract sum is N1,047,637.06 and the sum of N977,460.83 having been paid, the balance due to the plaintiffs is N70,176.25. This was the cause of action. The defendants therefore admitted liability in the sum of N70,176.25. Had the defendants paid the sum of N294,552.25 certified in Valuation Certificate No.27, they would have paid a total of N1,272,013.08 (N977,460.83 plus N294,552.25) as against the contract sum of N1,047,637.06.

The learned trial Judge in a reserved judgment held that the plaintiffs were only entitled to the sum of N70,176.25 as admitted by the defendants plus interest at 10% on the sum found due. The plaintiffs were dissatisfied with the judgment and appealed to the Court of Appeal Kaduna Judicial Division.

The court below held that neither the plaintiffs nor the defendants ought to be awarded judgment on the basis of the findings of the learned trial Judge. It set aside the decision of the trial Judge and made an order for a retrial.

The defendant appealed against the decision of the Court of Appeal and the plaintiffs also cross-appealed. I will from now refer to the defendants as defendants/appellants and the plaintiffs as plaintiffs/respondents in this judgment.

From the grounds of appeal filed by both parties, the appellants identified the following issues for determination at page 2 of their brief of argument filed on 15:12:88:

“(i) Could the Court of Appeal validly reverse the Ilorin High Court decision which was supported by evidence.

(ii) Was it proper of the Court of Appeal to have ordered a retrial when the Court of Appeal agreed that it appeared the balance due was N70,176.23.

(iii) Was it right to hold that the particulars of errors in issuance of certificate number 27 was not stated in the appellant’s (N.B.N. Ltd) pleading in view of paragraphs 2-6 of the statement of defence, and

(iv) Was the Court of Appeal right to hold that Exhibit 1A, tendered by the respondent herein (P.B. Olatunde & Co. (Nig.) Ltd.), did not bind the respondent herein.”

The plaintiffs/respondents on 6/12/88 filed a brief of argument in respect of their own appeal. At page one of the said brief, the only issue for determination is:

“Whether it is proper for the Court of Appeal to order a retrial in this case when the Court had held that variation was properly authorized and that Exhibit 7A (Certificate No. 27) was not faulted.”

On 10:1:89, the plaintiffs/respondents filed another brief of argument titled “brief of Argument For Cross-Respondent.” In it, the following issues are identified as arising from the grounds of appeal filed by the plaintiffs/respondents in their cross-appeal:-

“(i) What is the duty of an appeal court if it finds the judgment of the trial court perverse

(ii) Is the order of retrial made by the Court of Appeal proper considering the fact that the Court of Appeal has held that Exhibit 7A (Certificate No.27) cannot be impugned and that indeed extra (sic) jobs were done which is reflected on Exhibit 7A (Certificate No. 27) and which were not paid for

(iii) Was it right to hold that the particulars of error in issuance of certificate No. 27 was not stated in the appellant’s (N.B.N. Ltd.) pleading in view of paragraphs 2-6 of her Statement of Defence.

(iv) Was the Court of Appeal right to hold that Exhibit 1A which was pleaded and tendered by the respondent herein (P.B. Olatunde & Co.) did not bind the respondent therein.”

In what is titled “Additional brief for N.B.N. Ltd.” filed on 3:2:89, the defendants/appellants formulated two issues for determination, namely:-

“(i) How is the final certificate to be arrived at according to Exhibit 4 the Bill of Quantities and

(ii) Was the Court of Appeal right in reversing the High Court’s decision that P.B. Olatunde & Co. Nig. Ltd. (respondent) was entitled to only N70,176.23 i.e. Revised contractual sum less payments made on certificates 1-26.”

Both parties filed two briefs each in respect of the two appeals hence the multiplicity of issues for determination whereas a brief of argument by each opposing party would have taken care of both appeals. I think it is a tidier and neater practice which should be adopted in future except where the circumstances of the particular case dictate otherwise. It seems to me from the four sets of issues formulated by the parties, the main issues raised in this appeal can be categorised as follows:-

1. Did the plaintiffs/respondents prove at the court of trial that they are entitled to the amount claimed on Certificate No. 27 having regard to their pleading and evidence
2. Were there variations of the contract in accordance with Exhibit 4 and if so whether Exhibit 7A reflected the final contract sum.
3. Whether the order of retrial made by the court below was proper having regard to all the circumstances of the case.

At the hearing of the appeal both learned counsel adopted and relied on their respective briefs of argument. There was little or no additional points highlighted by both learned counsel at the hearing. One has to fall back on the briefs of argument filed.

In a rather very sketchy briefs of argument filed by the learned counsel for the defendants/appellants, the following points were canvassed:-

(1) The court below was in grave error to have set aside the judgment of the trial court which was supported by evidence adduced in the said court and the court below should not have substituted its own views of the facts for those of the learned trial Judge.

(2) There was no basis for an order of retrial because the court below applied the formula in Clause 30(6) of Exhibit 4 and found that the sum of N70,176,23 would be the only permissible balance due to the plaintiffs/respondents as there was no pleading or evidence to support the purported balance of N294,552.25. Counsel cited and relied on the cases of Okeowo & Ors. v. Migliore & Ors. (1979) 11 S.C.138 at 201; Adeyemo v. Arokopo (1988) 6 SCNJ. 1 at 13 (1988) 2 NWLR (Pt.79) 703 and Umar v. Bayero University, Kano (1988) 7 SCNJ 380 at 387 (1988) 4 NWLR (Pt.86) 85.

(3) The totality of the judgment of the court below is to the effect that the decision of the trial court was based on the pleadings and evidence adduced by the both parties an that decision should not have been disturbed.

(4) Exhibit 7A (Certificate No. 27), was issued in error as it was contrary to the express terms of the Bills of quantities (Exhibit 4) which stipulated that the final certificate is to be arrived at by subtracting what had been paid (Certificates Nos. 1 to 26) from the final contractual sum.

(5) The agents had power to authorise variations and to quantify the values of such variations but they cannot change the terms of the Bills of Quantities which provides that variations must be specified and quantified in writing as stipulated in Exhibit 4 and that Exhibit 1A contained provision for contingencies which covered Exhibit X.

We were urged to allow the defendants’ appeal, dismiss the plaintiffs’/respondents’ cross-appeal and affirm the decision of the learned trial Judge.

In the briefs of argument filed on behalf of the plaintiffs/respondents, learned counsel submitted that where an appeal is against the weight of evidence or that it is perverse, an appellate court “must make up its own mind on the evidence, not disregarding the judgment appealed from but carefully weighing and considering it and not shrinking from overruling it, if, on full consideration, it comes to the conclusion that the judgment is wrong.” He rested his submission on Macaulay v. Tukuru (1881-1911) 1 NLR. 35; Lion Buildings Ltd. v. M.M. Shadipe (1976) 12 S.C.135 at 153 and Ikpaloka & Ors. v. Umeh & Or. (1976) 9-10 S.C. 269 at 300- 301. He said that the evidence before the court is documentary and does not involve the question of assessing the demeanour of the witnesses but of drawing inferences from admitted documentary evidence. He referred to the case of Shell B.P. v. Cole & Ors. (1978) 3 S.C.183 at 194 and that the Court of Appeal is in as much as good position as the trial court to deal with the facts and make proper findings from the admitted documents.

He further submitted that Exhibit 7A (Certificate No. 27) part of the facts pleaded in paragraphs 12 and 13 of the amended Statement of Claim, that Certificate No.27 was admitted in evidence as Exhibit 7A and that the court below accepted that the figure N1,748,771.73 was well demonstrated by the pleading and the evidence.

It was the contention of the plaintiffs/respondents’ counsel that the plaintiffs claimed the sum of N464,246.10 in their Writ of Summons and N294,552.25 in the amended Statement of Claim because the defendants/appellants paid the amount on Certificate No. 26 after the Writ of Summons was filed. It was therefore not necessary for the plaintiffs to plead the sum of N1,748,771.73 in any other way since that is not the amount of money they were claiming and in any case, there is no dispute about the contents of Certificates No. 1 to 26 as both parties agreed both in their pleadings and evidence that the amount in Certificate Nos. 1-26 had been settled.

Learned counsel further submitted that it was not necessary to tender Certificate No. 1-26 since both parties have agreed on those points. The cases of Lewis & Peat Ltd. v. Akhimien (1976) 7 S.C.157 and Akintola v. Solano (1986) 2 NWLR (Pt.24) 589 were cited.

As to the variations made, counsel said that they were properly made and that the court below held that after the revised contract sum of N1,047,637.06, some variations were carried out that were not paid for and that Exhibit 7A clearly demonstrated the variation properly made and showed how the contract sum of N1,748,771.73 was arrived at. Since the court below held that the amount stated in Exhibit 7A is conclusive of the outstanding money due on the contract and that it was not issued in error, the court below should have entered judgment for the plaintiffs in the sum of N294,552,25 claimed on Certificate No.27 (Exhibit 7A).

In his further submission on Exhibit 7A, learned counsel stated that the court below found that it was valid and binding as no fraud, mistake or collusion was alleged by the defendants and that Exhibit ‘X’ is a variation made subsequent to the revised sum of N1,047,637.06.

Learned counsel also submitted that after evaluating the evidence before the trial court, the proper order which the court below should have made is not that of a retrial. He urged the court to nullify the order of retrial made by the court below and enter judgment for the plaintiffs for the sum of N294,552.25 which they claim.

The determination of issue number one above will involve the consideration of the pleadings of both parties and the evidence led in proof of the facts pleaded. The relevant averments in the plaintiffs: amended statement of claim are paragraphs 3 to 15 which are reproduced hereunder:-

“3. By a letter dated 19th January, 1978 the defendant awarded the construction of its Bank Building at Ilorin to the plaintiff for the sum of N451,857.22. The plaintiff hereby pleads Architects Co. Design letter to the plaintiff and shall rely on the same.

4. By another letter dated 13th April, 1981 written by Architects Co. Design, servant or Agent of the defendant, the contract sum was revised from N451,857.22 to the sum of N1,047,637.06. The plaintiff hereby pleads the said letter.
5. The said contract was reduced to writing and signed by parties which the plaintiff hereby pleads.
6. By Clause II of the said contract agreement, otherwise known as Bills of Quantities the defendant could alter and vary the contract.

The plaintiff hereby pleads the following documents relating to variation of the said contract:-

1. Archodes letter dated 28th April, 1978 copied to the plaintiff.
2. Archodes letter dated 7th March, 1979 addressed to the plaintiff.
3. Defendant’s letter to the plaintiff No. AP/L/41 (1) Vol.II/80 of 7th February, 1979.
4. Archodes’s letter to the plaintiff dated 14th January, 1980.
5. Defendant’s letter copied to the plaintiff and dated 27th November, 1980.
6. Archode’s letter to the plaintiff dated 18th February, 1982.
7. Plaintiff’s letters to the defendant or their agents Architect Co-Design Span Group on the said contract dated 31/10/78, 21/2/19, 21/1/80, 10/7/82, 24/8/82, and 14/1/83.

6(a) The plaintiff further pleads letters from Architects Co-Design to the plaintiff dated 9th December, 1981 and 25th April, 1983 relating to variation of the contract between the plaintiff and the defendant.

7. The plaintiff shall also rely on the minutes of site meetings held between the plaintiff, the defendant and the defendant’s agents on 6th July, 1979, 3rd August, 1979, 7th September, 1979, 1st February, 1980, 2nd May, 1980, 4th July, 1980, 1st August, 1980 and 5th September, 1980.
8. The plaintiff has since completed the contract and handed over the building to the defendant since the 20th January, 1984. The plaintiff hereby pleads his handling over note dated 13th December,1983 but signed for and on behalf of the defendant on 20th January, 1984.
9. That the plaintiff was paid his entitlement under the agreement after the Architects and Quantity Surveyors who were employed by the defendant were satisfied with the amount and standard of plaintiff’s work.
10. That the Architects as well as the Quantity Surveyors issued Valuation Certificate to show that the plaintiff was entitled to whatever was due to him.
11. The plaintiff shall rely on the Valuation Certificate Nos. 1-27 jointly issued by Architects Co-design of 50 Olowu Street, Ikeja, Lagos and Span Group Quantity Surveyor’s & Construction Consultants of 8A Bobs Kazeem Street, Obanikoro, Ikorodu Road, Lagos.
12. By reason of the variation ordered by the Architect and the Quantity Surveyors, the contract sum rose to the sum of N1,234,719.73k.

The plaintiff hereby pleads Architects Co-design letter on 1st July, 1984 to the defendant in respect of certificate No.27 for the sum N294,552.25.

13. The plaintiff have (sic) so far been paid amounts specified in all the valuation certificate Nos. 1-26 and has certificate No. 27 of 17th July, 1984 for the sum of N294,552.25k still outstanding.
14. The defendant has refused to settle the balance of N294,552.25k despite repeated demands by the plaintiff.
15. Wherefore the plaintiff claims from the defendant the sum of N294,552.25k plus 10% of the said sum from the 31st of January, 1984 to the date of judgment.”

(Italics are mine for emphasis only).

The defendants admitted paragraphs 1 to 9 in their paragraph 1. Paragraphs 1 to 6 of their statement of defence read:-

“1. The defendant admits paragraphs 1-9 of the statement of claim.

2. The defendant denies paragraphs 10-15 of the Statement of Claim and requires strict proof thereof.
3. In further answer to paragraphs 10-15 of the Statement of Claim the defendant avers;

(a) that the revised contractual sum was N1,047,637.06;

(b) that by a letter Ref. No. AP/L.41(1) Vo1.V/29 of 18th March, 1981, the defendant made it clear that the revised sum could not be exceeded and

(c) the plaintiff was duly informed of the limitation. The defendant pleads (i) the aforesaid letter of 18/3/81 from Property & Estate Manager of the defendant to Architect Co-Design and (ii) a letter from Architects Co-Design dated 13/4/81 to the plaintiff.

4. The defendant also pleads the letter from Spanqants Associates dated April 11, 1985, to the plaintiff which shows that the defendant had paid on Certificates 1-26 the sum of N977 ,460.83.
5. The defendant avers that the plaintiff was wrongly issued certificate No.27 for N294,552.25k by the Quantity Surveyor whereas the plaintiff is entitled to only N1,047,637.06 – N977,460.83 i.e. N70, 176.23, and the plaintiff is aware of the error.
6. Wherefore the defendant avers that the plaintiff is entitled to only N70,176.23 in respect of Certificate No.27 and not N294,552.25 as falsely stated in Certificate No.27.”

There are a lot of flaws in the case presented by the plaintiffs. The alleged contract agreement which was in writing and signed by both parties was pleaded in paragraph 5 of the amended Statement of Claim but was not tendered at the trial. What is contained at pages 1 to 2A of Exhibit 4 is a pro-forma contract agreement titled “Articles of Agreement.” It was not executed by the parties. Had this been done, Exhibit 4 would have qualified as the written agreement referred to in the said paragraph of the amended statement of claim.

It is in evidence that both parties signed an agreement which is in the possession of the defendants/appellants and notice to produce the same at the trial was given to them. It was not produced and the plaintiffs/respondents proceeded to tender Exhibit 4 (the Bills of Quantities). Pages 1 to 2A Exhibit 4 contain a blank “Articles of Agreement.” Those pages do not quantify as secondary evidence of the written agreement.

Exhibits 1 and 1A on the other hand are no substitutes for the written contract. They only revised the contract sum from N451,857.22 to N1,047,637.06 and are relevant for that purpose only.

The Bills of Quantities which were admitted in evidence as Exhibit 4 described in detail every item of works to be done. They are usually referred to in the contract agreement and form part of it. They are mere estimates and specifications of the work to be done and they cannot exist without the contract agreement.

The plaintiffs also averred in paragraphs 10 to 13 of their amended statement of claim that they were issued 27 Valuation Certificates by the Architects and Quantity Surveyors employed by the defendants showing that they are entitled to whatever was due to them; that they would rely on the Valuation Certificates; that they had been paid the amounts specified in Valuation Certificate Nos. 1 to 26 and that Certificate No. 27 for N294,552.25 was still outstanding. In paragraph 12 of the amended statement of claim they averred that the contract sum rose to N1,234,719.73 by reason of variations ordered by the Architects and Quantity Surveyors. Exhibit 7A showed the sum of N1,748,771.72 as the final contract sum.

This amount was not pleaded. Certificate Nos. 1 to 26 were not tendered either. The defendants/appellants averred in paragraphs 4 and 5 of their statement of defence that they paid the sum of N977 ,460.83 on Valuation Certificate Nos. 1 to 26; that Certificate No.27 for the sum of N294,552.25 was wrongly issued by the Quantity Surveyors and that the plaintiffs were entitled to only N1,047,637.06 minus N977 ,460.83 i.e. N70,176.23.

The plaintiffs/respondents did not in their amended statement of claim state the amount they have received on Certificate Nos. 1 to 26 to be able to arrive at the balance shown in Exhibit 7A – Certificate No.27. However, under cross-examination by the learned counsel for the defendants/appellants, the Managing Director of the plaintiffs/respondents who testified as P.W.1 said:-

“I agree the contract sum is N1,047,637.06.

On Certificate 1-26 I have been paid N977 ,460.83.

I do not agree that the balance due to be paid is N70,176.23.” (see page 22 lines 2 to 5 of the record of appeal).

So, they agreed with the appellants’ pleading as well as their evidence that the sum of N977,460.83 had been paid to them on Certificate 1 to 26. They failed to prove how they arrived at the sum of N294,552.25 which according to them was outstanding on the contract.

The material documents pleaded by defendants were not produced and tendered. See Okubule v. Oyagbola (1990) 4 NWLR (Pt.147) at 723 and Bello v. Fayose & Ors. (1994) 2 NWLR (Pt.327) 404 at 418. But for the admission made by the defendants/appellants in their pleading and evidence to the effect that the plaintiffs were entitled to only N1,047,637.06 minus N977,460.83 i.e. N70,176.23, the plaintiffs’ claim would have failed in toto.

The court below came to the conclusion that from whatever angle the issue was examined, the state of the parties pleadings could not justify or support the contract sum of N1,748,771.72 in Exhibit 7A nor could it satisfactorily displace the pleaded contract sum of N1,234,719.73 and I agree with it. The order for a retrial made by the court below after coming to the above conclusion is manifestly wrong having regard to the above conclusion.

An order of retrial is made where there has been a serious irregularity in the original trial or where the rules of fair hearing under S.33(1) of the Constitution appears to have been violated. See Okorodudu v. Ejuetami (1967) NMLR 282; Adio v. Attorney-General, Oyo State ( 1990) 7 NMLR (Pt.163) 448. The discretion whether or not to order a retrial is that of the Court of Appeal and this court will not interfere even if it might have exercised it differently unless this court comes to the conclusion that the court below exercised its discretion on wrong principles, for example, if the exercise of it was manifestly wrong, arbitrary, reckless, injudicious or contrary to justice. See Imonikhe & Or. v. Attorney-General. Bendel State & Ors. (1992) 6 NWLR (Pt.248) 396 at 408; University of Lagos & Ors. v. Olaniyan & Ors. (1985) 1 NWLR (Pt.1) 156.

In the result, I am of the view that the appeal of the defendants should be allowed and it is hereby allowed. The appeal of the plaintiffs is dismissed. The judgment of the court below is set aside and the judgment of the High Court is affirmed. The defendants/appellants are entitled to the costs of this appeal in the sum of N1,000.00 in this court and N300.00 in the court below respectively.

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SC.272/1988