The Hon. Minister F.c.t. & Ors V. Kaydee Ventures Limited (2000)
LawGlobal-Hub Lead Judgment Report
S. MUNTAKA-COOMASSIE, J.C.A.
This is an appeal from the judgment of the High Court of Justice of the Federal Capital Territory, Abuja, Coram Kusherki, J., herein called lower court delivered on 6/4/98.
The parties to this appeal entered into road construction contract. The said contract was awarded to the plaintiff, now respondent, on 3/6/97 by which the respondent, as contractor, contracted to build, for the appellants, as employers, Link Road 3 Alignment headed AWARD OF CONTRACT FOR THE CONSTRUCTION OF LINK ROAD III ALIGNMENT, from Keffi Road to Airport express way Abuja. Before the work started in earnest, a dispute arose as a result of which the appellants terminated the contract on 29/8/97 for failure to mobilise to the site and incompetence. Same contract was re-awarded to 3rd appellant – SKY TECHNICAL NIGERIA LIMITED.
Consequently, the respondent’s company, Kaydee Ventures Limited, as plaintiff, instituted an action before the lower court against the three appellants, namely, the Hon. Minister of the F.C.T., Federal Capital Development Authority herein called 2nd appellant, and Sky Technical Nigeria Limited, claiming as follows:-
1. A declaration that the letter Ref. No. FCD/DES/44/S.295/80 dated 29/8/97 titled Termination of Contract for the Construction of Link Road from Keffi Road to Airport Expressway is illegal, null and void.
2. Perpetual injunction restraining the defendants, their servants, assigns and privies from interfering, interrupting, or preventing the plaintiff from executing contract No. FCD/DES/44/S.295/80 in accordance with the contract agreement dated 30/7/97.
3. A perpetual injunction restraining the defendants, their assigns, agents, and privies from carrying out any work on the construction of link Road Alignment along Keffi Road to the Airport Expressway, Abuja.
4. A perpetual injunction restraining the 1st and 2nd defendants from giving effect, or any backing or support to the 3rd defendant in carrying out the consnuction of the Link Road III Alignment, Keffi to Airport Expressway.
5. In the alternative-
The sum of N28,387,134.35 being anticipated loss of profit from the aforesaid contract; N30,000,000.00 as general damages for loss of goodwill, reputation and cost of demolition on site.
The respondent, as plaintiff called two witnesses and tendered a number of exhibits, to establish his case. The appellants in their turn called equally two witnesses who testified as DWS 1 and 2 also through whom some exhibits were tendered and admitted.
At the rudimentary and interlocutory stage, the learned Judge of the lower court had occasions to deliver a score of rulings. At the conclusion, His Lordship in a considered judgment, found in favour of the respondent. He states thus:-
….In the case in issue the 2nd defendant agreed to give 7 days notice prior to the contract being terminate, (sic) I agree with the learned plaintiff’s counsel that non-compliance with this conditions in itself amounted to breach of contract. It is therefore my finding that the termination of the contract by the defendants was wrongly done .
…The plaintiff must noneverlss (sic) be entitled to damages which should be reasonable in the circumstances. This I compute at 15% of the contract rate. This comes up to N14,193,569.68 which I hereby award the plaintiff.
The learned Judge of the lower court also awarded N1,000.00 (One thousand Naira) costs to the respondent.
Dissatisfied with the decision of Kusherki, J. the appellants appealed to this court and filed an amended notice of appeal containing two grounds of appeal. This was made possible by an order of this court granted on 4/4/2000 which reads thus:-
Ground 1
The decision of the learned trial Judge is against the weight of evidence.
Particulars
The learned trial Judge failed to properly balance the evidence of the defendant/appellants as against the low evidence of the plaintiff/respondent when he upheld the evidence of P.W.S as being uncontradicted and un-challenged and entirely based his findings on damages on this piece of evidence.
Ground 2
The learned trial Judge misdirected himself and erred when he failed to give adequate and/or impartial consideration to the case of the appellants and thereby occasioned serious miscarriage of justice.
Particulars
(a) The learned trial Judge was partisan in his summary of the argument of counsel and his partiality was reflected in his decision.
(b) The learned trial Judge omitted to consider the main argument canvassed by the appellants which centred on the fact that the plaintiff had failed to mobilise to site and had in fact breach the contract.
(c) The learned trial Judge ought to have known that the real issue he was called upon to decide was whether having regard to the evidence before him, the plaintiff/respondent was not entitled to the colossal sum he awarded to it as loss of profit.”
In his written brief of argument filed on 6/4/2000 pursuant to the rules of this court, the appellants’ counsel on behalf of all the appellants, formulated three issues for the determination of the appeal; I reproduce the issues hereunder:
1. Whether having regard to the facts and circumstances of this case and the evidential burden of proof, the respondent had made out a proper case of wrongful termination.
2(a) Whether the learned trial Judge adequately (if at all) dealt with the issues raised in the evidence of the defence witnesses in his judgment.
(b) If the answer to the above is in the negative, whether the said judgment should be allowed to stand.
3. Whether in his judgment, the learned trial Judge made an even handed approach to the case of the parties or correctly applied the law to the facts before him.”
Appellants’ counsel, I must hold, is a bit verbose and prolific.
Respondent’s counsel, Chief Karina Tunyan not only filed the normal respondent’s brief in response to the appellant’s brief, but also cross-appealed and filed his respondent’s and Cross-appellant’s brief together on 5/5/2000. After criticizing the appellant’s counsel for distilling three issues out of two grounds filed, learned Counsel for the respondent formulated, rightly in my view, two issues for our consideration as follows:-
“(a) Whether the decision of the learned trial Judge is against the weight of evidence adduced at the trial.
(b) Whether the learned trial Judge failed to give adequate and/or impartial consideration to the case of the appellants.”
The respondent’s Counsel, Chief Tunyan raised a preliminary objection and contended that both the grounds of appeal filed by the appellants were incompetent and should be struck out. He argued that ground one being a general ground should not be vaguely couched unless and until it is an omnibus ground, in that case it may be allowed to scale through. He relies on Order 3 Rule 4 of the Rules of this Court.
Learned Counsel also drew the attention of this court to the existence of their notice of cross-appeal filed on 21/5/98 containing ground of appeal which read thus:-
The learned trial Judge applied wrong principle of law in arriving at N14,193,569.68 only as plaintiff’s anticipated loss of profit.
Particulars
(a) The evidence of P.W.1 in respect of the anticipated profit of the plaintiff was un-contradicted.
(b) P.W.1 being an expert witness, the court ought to believe and act on his un-contradicted evidence as to the amount of loss of profit.
(c) The trial Judge applied unknown principle of law in reducing the sum of N28,387,189.35 as given by P.W.1 as the loss of profit to N14,193,569.68
From the above sole ground of cross-appeal, the respondent formulated one issue as follows:-
Whether the learned trial Judge was right in law by reducing the loss of profit of N28,387,139.35 as given in evidence of P.W.1 to N14,193,569.68.
The appellant’s counsel on behalf of all the appellants filed what he tags as “Reply to Cross-appellant’s brief on 22/5/2000. In this reply, the appellants vehemently opposed to the cross-appellant’s brief of the cross-appeal for the following grounds:-
(i) The cross-appellant never filed any notice of cross appeal as claimed by the respondent. This contravenes the due process of law.
(ii) The respondent made fairly fervent and spirited attempts to execute the judgment of the lower court and have never at any point, since the commencement of this appeal, indicated that they have also cross-appealed against the judgment of the lower court; and
(iii) that the cross-appeal is an afterthought as the respondent had all the opportunity before the commencement of this appeal to have filed the notice of cross-appeal and had to do as is borne out by the records of proceedings from the lower court to which the respondent has never objected.
Before I go further and delve into the consideration of this appeal proper, I believe it is instructive to consider and dispose of the said preliminary objection first.
I have gone through the records of proceedings and the arguments of both counsel coupled with their respective submissions. I will go direct to the point and hold that there is no substance in the objection. The said notice of cross-appeal dated 21/5/98 was filed and is now part of our record. I cannot say at the moment whether the cross-appeal was an afterthought or not. All what I can say presently is that a cross-appeal is an appeal by the respondent to a main appeal.
Under the Rules of this Court, a cross-appeal is considered as a distinct and lucid appeal having all the peripheries of an appeal. It is the law that a cross-appeal is akin to a counter-claim and to be valid, a competent notice of appeal is filed after which briefs of arguments are exchanged.
I now proceed to consider the appeal on its own merit having disposed of the said preliminary objection. I have already set out a brief facts and evidence in the case leading to the judgment of the lower court. I had also an overview of the decision of the lower court and the grounds of appeal filed and the brief filed thereto.
I wish to start with the issue No. 1 as presented by the appellants. The appellant’s counsel argued that the act of the appellants which prompted the action was the termination of their contract by the 1st and 2nd appellants for the respondent’s inability to mobilise and commence work on site. Following the termination, the respondent took out an action by way of writ of summons seeking for the granting of certain reliefs. The reliefs were stated in my earlier consideration of this appeal.
The appellant’s complaint under this issue is that the trial court was only called upon to determine whether the respondent had a valid case for wrongful termination. He then submitted that the facts and evidence in the case show conclusively that the respondent had totally failed to mobilize and commence work on site despite repeated instructions in that regard. According to the appellant’s counsel, the trial Court prove and establish its case. He relied on Section 136 of Georgewill v. Ekine (1998) 8 NWLR (pt. 562) 468.
Learned Counsel referred to the evidence of P.W.1 on pp. 53-54 of the records of proceedings and described it as totally irrelevant with regards to the assertion of wrongful termination. Because he, P.W.1, admitted not being an employee of the respondent and was only requested to work out a profit margin after the case had even gone to court. (This witness/evidence can’t establish the claim).
The learned Counsel for the appellants referred to the evidence of P.W.2 on pp. 54-59 of the record and briefly summarised the evidence thus:-
“that the respondent had mobilised to site and commenced work. She further said that the project supervisor had refused to give the respondent Maps and Drawings”. (Italics mine)
Learned Counsel then contended that this outright contradiction was pointed out in cross examination and in the appellants’ submission at the lower court yet, the learned trial Judge found for the respondent in glowing terms.
Counsel further contended that D.W.1 testified on pages 59-63 that the termination was occasioned by the respondent’s inability to mobilise to site, and that the Bill of Quantities defined the works to be done by the contractor and that the respondent did not require any drawing to mobilise to site as the project was based on an existing track road. See pp 4-5 of the appellant’s brief.
The respondent referred to Exhibits F & B and argued that the contract was terminated prematurely since the contract was terminated barely two weeks after the commencement date and the contract was to be executed after signing Exhibit B. He stated that the respondent still had 14 days to mobilize on site, which 14 days was to expire on 18/8/97. Counsel again referred to clause 21.01 and clause (viii) of Exhibit ‘B’ together with the testimony of D.W.1 and submitted that the respondent was still within time as he had 7 days within which to mobilise on site. He emphasized that there was no contradiction in the evidence of P.W.1 since the D.W.1 stated that the drawing were withheld. He then submitted that the findings of the trial Court that the appellants wrongly terminated the contract was supported by evidence. He urged this court to answer in negative to issue No. 1.
On issue No. 2 namely:-
(a) Whether the learned trial Judge adequately (if at all) dealt with the issues raised in the evidence of the defence witnesses in his judgment.
(b) If the answer to the above is in the negative, whether the said judgment should be allowed to stand.
The complaint of the appellants under this issue is that the learned trial Judge devoted so much space to summarising and agreeing with the sole testimony of P.W.1 whilst ignoring the aspects of the defence’ witness testimony which clearly contradicted the evidence of P.W.1. He then contended that a trial is a public demonstration and testing before a court of the cases of contending parties. The function of a court is to decide between the parties on the basis of what was submitted to it for adjudication and what has been demonstrated and tested by the contending parties. He then submitted, that accordingly a Judge would be failing in his duty if he either consciously or unconsciously, deliberately or mistakenly omitted to decide the issues raised by the parties. He relied on the case of Ojogbue v. Nnubia (1972) 6 S/C 227 at 236 where Coker J.S.C. held:-
A judgment of the court must demonstrate in full a dispassionate consideration of the issues properly raised and heard and must reflect the results of such an exercise.”
In a further submission, learned Counsel for the appellants said that it was wrong for the learned trial Judge to consider and determine the case of the respondent for wrongful termination exclusively on the evidence of P.W.2 which said evidence stood controverted by the testimonies of D.W.1 and D.W.2. And that this misdirection had occasioned serious miscarriage of justice.
In reply to this issue, learned Counsel for the respondent, Chief Tunyan, reproduced the proper way of evaluation as directed by the Supreme Court in the case of Mogaji and others v. Odofin and others (1978) NSC p 275/277 thus:
“…in deciding whether a certain set of facts given in evidence by one party in a civil case before a court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial Judge, after a summary of all the facts on an imaginary scale, weigh one against the other, then decide upon the preponderance of the credible evidence which weighs more, accept it in preference to the other, and then apply the appropriate law to it; if that law supports it bearing in mind the cause of action, he will then find for the plaintiff.
If not the plaintiff’s claim will be dismissed”.
Learned Counsel for the respondent submitted that the learned trial Judge meticulously followed the principles of Mogaji and others v. Odofin and others supra in deciding the instance case (sic). He then urged this court to answer issue No. 2 in the negative.
Issue No. 3 states thus:-
“…Whether in his judgment, the learned trial Judge made an even handed approach to the case of the parties or correctly applied the law to the facts before him.
The central point here is whether the learned trial Judge could be said to be impartial or fair to both parties in dealing with this case. Learned trial Judge, according to the appellant’s counsel on p7 of their brief was not even handed in his consideration of the case of the parties in fact, counsel further urged, the impression one gets while going through the judgment of the learned trial Judge is that he appeared to have made up his mind in advance to rule in favour of the respondent, otherwise how could the uncontradicted evidence of D.W.1 and D.W.2 to the effect that the respondent had failed to mobilise on site despite clear instruction to do so, be ignored?
Learned Counsel further submitted that P.W.2’s testimony upon which the court based its judgment was totally self seeking and contained no proof whatsoever as to equipment or labour hired or employed for the project. Counsel then grudgingly submitted that the learned trial Judge was out rightly partisan in his judgment when he held that Exhibit H. carries no weight in evidence to wit:
“Hence, failure of the defendant to place before the court the dispatch book as evidence of service on the plaintiff of Exhibit H leads the court to presume non existence of such service…”
Counsel then stated that meanwhile, the validity of Exhibit H is not denied, even by the respondent and this same document had put the respondent on notice that the contract will be terminated if the respondent fails to mobilise to site.
Learned counsel finally submits that the courts have always held that uncontradicted evidence must be taken as the true position of what it claims to be. In the case of M.D.C.N. v. System Informatrix Ltd. (1998) 12 NWLR (Pt. 577) at p. 268, Hon. Justice Mustapher, J.C.A. had this to say:-
“Where the evidence led by a party has not been challenged, contradicted or shaken under cross-examination, and the evidence is in line with the facts pleaded, the evidence must be accepted as the correct version of what he says.”
The respondent’s counsel, contended that issue No. 3 is not derived from any ground of appeal and should therefore be discountenanced on the other hand, counsel contends, if this court holds that the issue is a proper issue for determination, we adopt our entire argument in respect of our submission to the appellants’ submission in respect of issue No. 2 as our answer to appellant’s issue No. 3. He then urged this court to answer issue No. 3 in the affirmative and this court is urged to dismiss the appeal.
Without taking much of the precious time of this court, I wish to state that having considered the contention of the learned counsel to the respondent on issue No. 3 and having juxtaposed the amended notice of appeal filed especially additional ground No. 2 thereof there is no doubt that issue No. 3 is clearly distilled from the said additional ground of appeal.
I now proceed to deal with the issues and the submissions of the learned Counsel on them. The first issue deals with:-
Whether having regard to the facts and circumstances of this case and the evidential burden of proof, the respondent had made out a proper case for wrongful termination.
I have considered the plaintiff’s claim, the statement of defence, the exhibits tendered and the submissions of both counsel in their respective briefs of argument and hold that I will treat all the issues canvassed in one stretch.
I wish to discover whether the defendants now appellants were in breach of the contract when they terminated the contract with the respondent herein. It is stating the obvious to say that in deciding a dispute arising from the determination of a contract the court must confine itself to the plain terms and conditions embodied in the contract agreement. The parties would not be allowed to read into the contract extraneous terms on which they reached no agreement and which do not therefore form part of the contract. In the construction of such contract therefore, any question as to the duration of contract, its terminability and other details can only be obtained from the express or implied terms of the contract itself.The evidence before the trial court was clear that:-
(a) The contract was awarded to the respondent on the 3rd of June, 1997 and it is a fact which cannot be altered that the respondent accepted to execute the project in good time.
(b) It is an uncontroverted evidence of D.W.1 Engineer Adekunle Mukoulu to the effect that the respondent was instructed to commence work on site since on 16th day of June, 1997. According to the evidence, the Managing Director of the respondent collected the instructions now Exhibit K.
(c) I do not agree with the decision of the trial Court that the contract was determined before the formal execution of the contract. That one is mere formalily. I accepted the evidence of D.W.1 who testified to the effect that it is common practice with the appellants that a contractor could be called upon to commence works on site well before formal execution of the contract which is more of ceremonial than reality.
The respondent cannot be reasonably heard to now claim that it was fully mobilised on site when it earlier on emphatically stated that it did nothing because they were waiting for the drawings, which had been withheld by the appellants, before they can mobilise to site. This is blowing hot and cold at the same time. It is incredible.
When one considers the above contradictory evidence with the evidence of D.W.2 to the effect that as at the date of that inspection, there was no evidence of any setting out, nor presence of plants on the site and no activity of any form was going on at the time, one is bound to agree that before the termination of the contract the respondent did not mobilise to the site, see Exhibit ‘E’ paragraph 4 which says:-
“There was however no evidence of any setting out, nor presence of plants on the site, and no activity of any form was going on at the time of our visit. See also Exhibit ‘D’ a letter of last warning to the Managing Director of the respondent’s company issued by D.W.2 Engineer A. O. Mokuolu dated 14/8/97. The evidence of P.W.2 therefore cannot stand.”
It is a fact that the respondent did not mobilise to the site and there were a lot of warning and instructions issued by the appellants to the respondent to be alive to their responsibilities but the respondent failed to do that. It is surprising that the trial Court which heard and saw the witnesses testifying failed to make good use of this unique opportunity and to make a sound finding of facts on this point. Instead, it appears that the learned trial Judge did not consider that point as essential and over looked same.
This is a situation where the learned trial Judge failed to properly evaluate the evidence before his court. He has heard the evidence and seen the witnesses testifying but failed to evaluate the evidence that was adduced. He, in other words, failed to use the unique opportunity for hearing and seeing the witnesses. In such a situation what will be the role of the appellate Court? I believe in such a situation, this court, as an appeal Court is duty bound to intervene and evaluate such evidence in the overall interest of justice. This really constitutes one of the exceptions to the general rule that appellate Courts ought not to interfere with the findings of fact of trial courts which had the unique opportunity of seeing and hearing the witnesses giving evidence and observing their deameanor in the witness box. As I stated earlier on there are a number of exceptions to this rule, a major exception being that where, as in this case, such findings are in fact inference from findings properly made, the Court of Appeal is in a good position as the trial Court to come to a decision. I rely heavily on the following cases:-
(a) Chief Frank Ebba v. Chief Warri Ogodo (1984) 1 SCNLR 372 SC 84 at p. 98-100
(b) Fabunmi v. Agbe (1985) 1 NWLR (pt. 2) 299 at p. 314;
(c) Ukatta v. Ndinaeze (1997) 4 NWLR (pt. 499) 251/263
I believe that the law is as stated by Ogwuegbu, J.S.C. in the case of Ukatta v. Ndinaneze supra at p. 263 thus:
It is trite law… that a court of appeal should not easily disturb the findings of fact of a trial Judge who had the singular opportunity of listening to the witnesses and watching their performances. It is also settled law that such findings of facts or the inferences from them may be questioned in certain circumstances such as where the appellate court is satisfied that the advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge’s conclusion, and for that reason the Court of Appeal finds that the decision is perverse or where the facts found by the trial Judge are wrongly applied to the circumstances of the case or where the inferences drawn from those facts are erroneous or indeed where the findings of facts are not reasonably justified or supported by the credible evidence given in the case, a Court of Appeal is in as much a good position to deal with the facts and findings as the Court of trial. See Benmarx v. Austin Motor Co. Ltd. (1955) A.C. 370 at 374-376; Thomas v. Thomas (1947) A.C. 484 at 487-488; Fabuniyi & Ors. v. Obaje & Ors. (1968) NMLR 242 at 247; Fatoyinbo & Ors v. Williams (1956) SCNLR 274; (1956) 1 FSC 87; and Akinola & Ors v. Oluwo & Ors (1962) 1 SCNLR 352; (1962) All NLR 225.
The relevant findings of the learned trial Judge do not support the evidence properly adduced before him. The said evidence is credible and unchallenged by the cross-examinations of the respondent’s counsel at various stages of the proceedings. The decision of the trial Court in my view, with respect, is a mere conjecture not supported by evidence. In fact it is perverse which leads this court to sefely interfere with the findings of facts of the trial Court- Nwosu v. Board of Customs & Excise (1988) 5 NWLR (pt. 93) 225. See also Salami v. Gbodoolu (1997) 4 NWLR (Pt. 499) 277 at pages 291 and 293.
Looking at the record of proceedings before us one finds it difficult to discover whether the learned trial Judge based his decision on the main claims of declarations or his decision was hinged on the alternative claim or both. I have already reproduced the main claim and the alternative claim. The alternative claim for the purposes of clarity reads:-
“In the alternative –
The sum of N28,387,134.35 being anticipated lose (sic) of profit from the afore said contract; N30,000,000.00 as general damages for loss of goodwill, reputation and cost of demolisation on site.
The findings of the learned trial Judge appeared to have concentrated on the breach of contract which was, according to him, wrongly done.
I agree with the learned plaintiff’s counsel that non-compliance with this condition (failure of the defendants to give the plaintiff 7 days notice) in itself amounted to breach of contract. It is therefore my finding that the termination of the contract by the defendants was wrongly done …The plaintiff must neverless (sic) be entitled to damages which should be reasonable in the circumstances. This comes up to N14,193,569.68 which I hereby award the plaintiff See pp 72- 73 of the record. (Italics mine).
Learned trial Judge also held that for wrongful termination of the contract the plaintiff claims all injunctions and in the alternative they claim damages … The plaintiff will have to rever back (sic) to the alternative of claiming damages. p.72.
In the record of proceedings, there the issue of damages has not been thrashed out by the respondents. The nature of the damages to be awarded has not been clearly stated. One cannot deduce from the claims whether it was the special damages or general damages that were claimed. There is no credible evidence before the court to determine what damages could be awarded. The evidence of P.W.1, the so called expert witness and arbitrator, is no evidence at all. He was called by the respondent to give evidence against the appellants, his position, vis-a-vis the whole scheme was not stated. He was only to work out the profit margin for the contract based on the Bill of Quantity produced before him by Kay Dee Ventures, dated 18th day of March, 1996. He arrived at 30% of the contract sum as the profit margin. From where, for example, the Bill of Quantity was produced. Was it after the termination of the contract or before? Under cross-examination P.W.1 stated that I am not in the employment of the plaintiff company. I was assigned the job of working out profit margin only. I am an independent Professional.”
It is in evidence that the contract was terminated on 29/8/97. It was actually awarded on 3/6/97. The Bill of Quantity tendered for identification was said to be taken to the P.W.1 by the P.W.2 on 18/3/96 – The evidence of P.W.2 on p 55 of the record shows that the respondent were not furnished with Bill of Quantity etc. despite repeated demand. He said “We wrote several letters demanding the Bill of Quantity and the drawing. The last was in September, 1997.” Where then did the respondent get the Bill of Quantity and handed it over to the so called “Independent Professional” on 18/3/96?
The evidence of P.W.1 was destroyed and completely unreliable, no reasonable Tribunal can act on it. That being the case the decision of the trial court, with tremendous respect, cannot stand and I so hold. I hold therefore that the piece of evidence which says that 737m surface grading observed in Exhibit is an after thought for the following reasons;
(1) D.W.1, had averred that as at 29th of August, 1997, when the contract was terminated, there was no such surface grading on the site. I will reproduce his relevant evidence as it was contained in the record of proceedings p61, thereof:-
“The plaintiff did not comply with the instructions in the last letter. The plaintiff did not ask for the drawings. They do not require drawing to commence work. The project is based on the existing tracks road. The Bill of Quantity was taken by them wrote to my Deputy Director. I told him that the contractor was yet to mobilize on site and has not shown any present (sic) either personnel equipment … The claims on the achievement on site were all false. I was then made to write to say that all the claims were false. Later I was invited before the Hon. Minister with my director and Deputy Director with an instruction that myself, the Director and the Security Officer to the Hon. Minister. We were asked to go to the site to see whether the claims by the plaintiff was correct or on the negative. When we got to the site there was no activity and no machines and no evidence to show that the contractor had mobilise (sic) on site. The contractor could not show us any work done on site. This was on 26/8/97. My director then wrote to the Minister seeking for his approval to terminate the contract. The contract was terminated thereafter by the Hon. Minister. (Italics mine for emphasis)
After cross-examination the above evidence remains credible. The evidence of D.W.1 was substantially corroborated by the evidence of D.W.2 the Chief of Engineer with FCDA. His testimony was that the grading was done not more than 3 days earlier. The job is construction and the first thing to do is to set out and thereafter clearing takes place. Grading is only a cosmetic thing and is only done when one wants to attain a particular shape. The contractor was putting the cart before the horse. There was no evidence of setting out as there were not pegs(sic) therein. The area graded is about 0.732 km. By this, the contractor had shown that he is either incompetent or not ready to do the job.
With all the above evidence before the learned trial Judge one would expect the trial court to hold that the termination of the contract was never premature and is justified. In fact, a careful analysis of the evidence will lead to an irresistible conclusion that it was the plaintiff that failed to fulfil his own obligation to the contract.
On the issue of cross-appeal which was filed with the respondent’s brief, I discovered as a fact that it was actually filed. It is my view that, despite all odds, it was properly before this court. I have earlier on, reproduced the issue which was based on one ground, namely, that the learned trial Judge applied wrong principle of law in arriving at N14,193,569.68 only as plaintiffs anticipated loss of profit.
In arguing the sole issue under cross-appeal learned Counsel to the cross appellant Chief Kavina Tunyan submitted that the trial Judge correctly stated the principle relating to award of damages in cases of breach of contract of this nature. On p 72 lines 35-43, that court states thus:-
“Therefore payment of damages is what is now open for plaintiffs. And as held by Supreme Court in the case George Onaga & 4 others v. Micho and Co. (1961) 2 SCNLR 101, per Unsworth F. J. An aggrieved contractor is entitled to any balance of payment for work done and also to loss of profit on the work he has been prevented from doing”.
Learned Counsel then contended that having stated the law correctly the trial Judge applying to the fact of this case stated thus:
In this case P.W.1 was employed by the plaintiff to work on the Bill of Quantity for the contract terminated and assess the profit margin. He did so and arrived at 30% of the contract sum.
Although, the evidence of P.W.1 stand (sic) uncontradicted and unchallenged, being an expert’s evidence, it should be persuasive and not conclusive. This is more so that acting as an arbitrator he acted for and on behalf of one part against the other. The plaintiff must nonetheless be entitled to damages which should be reasonable in the circumstances. This I compute at 15% of the contract rate.”
Learned Counsel for the cross-appellant, Chief Tunyan submitted that having accepted expert evidence, the court was bound to act on it. There was no evidence on record and neither was it pleaded that P.W.1 acted as arbitrator. Chief Tunyan added that the reason given by trial Judge for reducing the sum proved as loss of profit was untenable in law. The trial Judge ought to award the full amount of N28,387,139.35. He then urged this court to answer issue No. 1 in the cross-appeal in the negative.
I have closely considered the sole ground filed in respect of the cross-appeal and issue distilled therefrom and the submissions of the learned counsel for the cross-appellant. It is to be noted that the appellants in the main appeal did not respond to the submissions of the cross-appellant’s counsel on the ground that the said cross-appeal was not properly and distinctively filed. This court earlier on agreed that the said cross-appeal would be rightly filed as was done by the cross appellant.
I have checked the record especially the evidence and discovered that the learned trial Judge did not totally accept the evidence of P.W.1 as Gospel Truth. He in fact in a way rejected that evidence on profit margin. He cannot see the relevance and propriety of the evidence of PW1 against the appellants. He distanced himself from the 30% of the contract amount given by the PW1 and dished out his own compensation which is 15% of the total cost of the contract.
Further to the above, the appellant herein as the cross-respondent has failed to react to the submissions of the cross-appellant’s counsel on the measure of damages recoverable in the instant case. But that does not mean that the cross-appellant shall succeed. The cross-appeal shall be determined on the basis of the strength of the submission of the cross-appellant. Now, it is trite law, that an appellate court shall not disturb the award of damages by a trial Court. The award of damages can only be altered by an Appellate Court when the award is shown to be either manifestly too high or manifestly too low was made on a wrong principle of law that the appellate Court is convinced that the award is made as an entirely erroneous estimate.I agree with the learned trial Judge that the evidence of the so called expert PW1 is most unhelpful. He has failed to show how he arrived at the figure of 30% of the contract price. An expert opinion is only necessary and relevant when the expert furnishes such scientific or technical detailed information that will convince the court on the correctness of the estimate. The learned trial Judge in the instant case computed the profit margin at 15% of the contract price. Although the figure will appear to be arbitrary, there is no evidence adduced by the cross-appellant to show that the amount is either too low or too high. Further, I am not convinced by the submission of the cross-appellant’s counsel that the award made is an entirely wrong estimation. The appellant/cross-respondent did not appeal against the award of damages as mentioned above, had it had done so, one would examine the propriety of awarding the damages for profit margin which was claimed in the alternative to the other claims which were granted. In any event, I am not convinced that I should alter the award of the damages. And most importantly, having regard to my finding that in the evidence adduced the trial court ought to have found for the appellant/cross-respondent, I adjudge that the cross appeal fails and is dismissed by me.
In the result, the appeal of the appellants succeed and is hereby allowed, the judgment and orders of the trial Court entered in this matter are hereby set aside. The claims of the respondent before the lower court are dismissed in their entirety. The cross-appeal of the respondent on the question of damages is dismissed. The appellant/cross-respondent is entitled to costs which I assess at the lower court and this court at the rate of N3,000.00 and N5,000.00 respectively.
Appeal allowed.
Cross-appeal rejected.
Other Citations: (2000)LCN/0921(CA)
