Wilbahi Investments Limited & Anor V. Archspan Consult Limited (2009)
LawGlobal-Hub Lead Judgment Report
UWANI MUSA ABBA AJI, J.C.A.
This is an appeal against the decision of Honourable Justice A.M. Talba of the High Court of the Federal Capital Territory, Abuja delivered on the 20th day of September, 2006, whereby the Honourable Trial Judge gave judgment in favour of the (now Respondent in this appeal).
The brief facts of this case are that by a writ dated and filed on the 6th of June, 2005 and initially instituted under the undefended list procedure, the /Respondent claimed against the Defendants/Appellants, jointly and severally as follows:
1.) The sum of N924,000.00 (Nine Hundred and Twenty four Thousand Naira) only being the balance of the cost of design, production of drawings as well as professional fees on the Defendants project: Development of Luxury Apartments on Plot 11, Kukwaba District, Abuja whereof the defendants engaged the services of the ;
2.) 10% interest on the Judgment sum from March, 2002 till the Day of Judgment in this suit and final liquidation thereof;
3.) Costs of this suit.
However the Appellants subsequently filed their Notice of Intention to defend the suit and on the 20th of October, 2005, the Honourable Trial Court granted the Defendants/Appellants’ application to defend the suit. Consequently, the /Respondent filed a witness statement on Oath along with his pleadings in accordance with the rules of the lower court and the Defendants/Appellants did same.
The matter went into full trial and the trial court gave judgment in favour of the Respondent.
Dissatisfied with this judgment, the Appellants have vide a Notice of Appeal dated 16th October, 2006 and filed on the same day and predicated upon three (3) Grounds of Appeal, appealed to this Honourable court.
The Grounds of Appeal, without their particulars are hereby reproduced:
Grounds of Appeal
1. The learned Trial Judge erred in law and on the facts in holding thus:
“In conclusion, it is my finding that has been able to establish a claim against the Defendants on the evidence before me that the sum claimed is owed the. It is therefore my judgment that the Defendants should pay to the sum of N924,000.00 being the balance of the cost of drawings designs as well as professional fees on the Defendants’ Project Development of Luxury Apartment at Plot 11 Kukwaba District, Abuja.”
2. The learned Trial Judge erred in law in awarding the sum of N50,000.00 as cost of litigation
3. The judgment is against the weight of evidence.
As is the practice in this court, parties filed and exchanged briefs of argument. In the Appellants’ brief of argument, settled by K.S. Okeaya-Inneh, SAN, two issues were formulated for determination to wit
I. Whether the learned trial judge was right in law and on facts when he held thus;
“In conclusion, it is my finding that has been able to establish a claim against the Defendants on the evidence before me that the sum claimed is owed the. It is therefore my judgment that the Defendants should pay to the sum of N924,000.00 being the balance of the cost of drawings designs as well as professional fees on the Defendants Project Development of Luxury Apartment at Plot 11 Kukwaba District, Abuja.”
II. Whether the learned trial judge was right in law and on the facts to award N50, 000.00 to the as cost of litigation.
In the Respondent’s brief, settled by S.E. Adino, Esq., the two issues formulated for determination by the Appellants were adopted by the Respondent.
At the hearing of the appeal on the 18th of May, 2009, learned senior counsel for the Appellants adopted and relied on their brief of argument filed on the 22nd of September, 2008 and the list of further authorities filed on the 18th May, 2009 and urged this Honourable Court to allow the appeal.
Learned counsel for the Respondent also adopted and relied on his brief of argument filed on the 20th of March, 2009 and urged this Honourable Court to dismiss the appeal.
Since the Respondent has adopted the issues raised by the Appellants in this appeal, the issues, as formulated by the Appellants are hereby adopted in the determination of this appeal.
In arguing Issue One, learned senior counsel for the Appellants referred this Honourable Court to page 18 of the judgment (also page 18 of the Record). He also referred this court to the pleadings/statement of defence at pages 93-95 of the Record, and specifically to paragraphs 5, 8, 10, 11,12,13,15 and 16. He also referred to paragraph 18 as well as Exhibit “DEF2′, and submitted that there is an improper evaluation of evidence by the trial court and argued therefore that an appeal against such a decision would be allowed. He referred to the following authorities.
SEISMOGRAPH SERVICE V. AKPORUOUA (1974) 6 SC 119; RABIU VS STATE (1989) 8/11 SC 130; NJOKU V. REGISTERED TRUSTEES CHGF (2006J 18 NWLR (PT.1011) 239 at 262-263. Learned senior counsel also submitted that the learned trial judge fell into error in deciding that the Appellants should pay the sum of N924,000.00 (Nine Hundred and Twenty-Four Thousand Naira) to the Respondent having found as a fact that the Appellants were not liable to pay the said sum. Learned senior counsel further submitted that in view of the evidence presented at the trial, which the learned trial judge accepted, his decision to give judgment to the Respondent was perverse in the extreme. He relied on the following cases; DOKHUAROBO V. AIGBE (2002) 9 NSCQR 623 at 655-666; NEPA V. OSOSANYA (2004) 17 NSCQR 273 at 292; ESE UKA & ORS V. IROLO & ORS (2002) 11 NSCQR 307 at 341; TSOKWA OIL MARKETING CO. V. BON LTD (2002) 11 NWLR (PAT.777) 16381 192.
It was also his contention that the law regarding decisions such as that of the trial court is crystal clear. He state that the trial judge admitted clearly that a third party was liable to pay the sums claimed by the Respondent but held that the Appellants were liable to pay the said sum.
He submitted that this is perverse in the extreme and amounts to a miscarriage of justice. He placed reliance on the case of NEPA V. OSOSANYA (2004) 17 NSCQR 273 at 292; and also the case of OJORA V. ODUNSI (1964) NMLR 12 at 15 NCSS Vol.3 (PG34} and ENYE V. OGBO (2003J 10 NWLR (PT82BJ403 at 426-7.
He urged this Honourable Court to resolve this issue in favour of the Appellants.
In his response, learned counsel for the Respondent was of the view that the learned senior counsel for the Appellants only reproduced part of the Records that were favourable to the Appellants but never cared to juxtapose same with pleadings and evidence of the parties where credible evidence was led to show that it was the Appellants and no one else that was liable to the Respondent on the contract, which is the subject matter of the suit. He submitted that the learned senior counsel did not reproduce aspects of the judgment where the learned trial judge expressly concluded, based on the evidence before him, that there was a binding contract between the Appellants and the Respondent and that the Appellants were liable to the Respondent for their failure to fully perform their own side of the contract.
Learned counsel further submitted that all the authorities cited by the learned senior counsel for the Appellants were misleading and misconceived as all the evidence before the trial court positively pointed to the fact that it was the Appellants and no other person who engaged the services of the Respondent, made part payment and ought to have paid the balance claimed by the Respondent at the trial court.
Learned counsel also submitted that, the learned trial judge properly evaluated the evidence before him and arrived at the conclusion that the Appellants were liable to the Respondent and that all the cases cited by the learned senior counsel to the effect that the learned trial judge’s decision was based on improper evaluation of evidence are not relevant and therefore unhelpful to the case of the Appellants. He referred to the case of AWOYOOLU V. ARO (2006) Vol.135 LRCN PG.729 at 731.
It is further submitted that the assertion of the Respondent at the trial court that it was the Appellants who engaged its services was not controverted in any material particular; rather it was the Appellants admission that they introduced the Respondent to the entire project.
Learned counsel also submitted that Exhibit DEF2, referred to by the Learned Senior Counsel in paragraph 5.1 of his brief of argument is totally devoid of probative value. For reasons inter alia that the liability to pay for the architectural drawings became due long before the meeting and the claim of the Respondent was for the balance of its architectural drawings and designs and not for risk of the project. It was also stated that what aspired at the meeting was an attempt by the Appellants to force down i.e. throat of the contractors, a liability that was exclusively theirs. That Exhibit DEF2 cannot be construed as a contract between the Respondent and the contractors as in Exhibit AC13 which was written subsequent to that meeting the Respondent told the Appellants that it would not want to have any dealings with these contractors or organization apart from the Appellants. It is his view that, Exhibit DEF2 has not only been countered but was also over taken by Exhibit AC13. It is therefore argued that the trial court properly evaluated the evidence before it and held that “it is therefore proper to say that there is no binding contract between the Muklar Construction Company Ltd and therefore cannot legally maintain an action against Muklar Construction Company Ltd.”
Learned Counsel further submitted that since Muklar Construction Co. Ltd is not a party to the suit, the trial court cannot make an order against it, not being a party or privy to the proceedings before it. He referred to the case of KOKORO-OWO V. LAGOS STATE (2001) 81 LRCN 1889 at 1902.
It is therefore argued that, it is not open to the Appellants to shift liability to a party not before the court. Even if a third party was actually liable to the Respondent, it is submitted that the Appellants should have issued a third party notice in accordance with Order 10, Rule 18(1) of the High court of the FCT (Civil Procedure) Rules 2004 so that the third party can come before the court and answer to the claim of the Respondent.
The Appellants having failed to avail themselves of this facility could not urge it on the trial court to exercise jurisdiction over a party that was not before the court. He placed reliance on the authority of UBA PLC V. JARGABA (2002) NWLR (PT.750) 200 at 205 Ratio 2.
He finally submitted that the Appellants alone were liable to pay the claimed sum by the Respondent and urged this Honourable Court to so hold and resolve this issue in favour of the Respondent.
In arguing his issue two, learned senior counsel for the Appellants submitted that based on the evidence proffered at the trial court, the Respondent was not entitled to judgment, which contention was further fortified by the fact that the learned trial judge in his judgment at page 18 of the Records found as a fact in the most unequivocal manner that the Appellants herein were not liable to pay the sum claimed by the Respondent. Learned senior counsel further submitted that, having found as a fact that the Appellants were not liable to the Respondent it follows that no costs could possibly have been awarded against the Appellants. He referred to the case of INNEH V. OBARAYE (1957) 2FSC 58-59 as well as REWANE V. OKOTIE-EBOH (1060) 5 FSC 2000 and argued that costs are not awarded for fanciful expenditure but on the ordinary principles of genuine and reasonable out of pocket expenses. He referred also to the case of OJIEGBE V. UBANI (1961) ALL NLR 277. He further argued that the award of costs against the Appellants is at variance with Order 52(3) and Order 52(7) of the High Court of the FCT, Abuja, Civil Procedure Rules 2004. He argued that, assuming without conceding that the award of costs was proper in any form, it is difficult to get around Order 52 Rule 7 and the principles set out by the Supreme Court in OJIEGBE V. UBANI (supra) as there were no particulars before the trial court with regard to the costs of litigation, It is his submission that the learned trial judge failed to consider the principles in OJIEGBE V. UBANI supra that in awarding costs, that it is necessary to set out item by item how total costs awarded was reached,” He further argued that the itemized costs of filing the Writ of Summon, ‘s Written Address and Statement of Claim could not by any stretch of imagination amount to N50,000.00 assuming these formed part of the itemized costs. He therefore urged this Honourable Court to set aside the decision of the learned trial judge and allow the appeal.
In his response, learned counsel for the Respondent submitted that the learned senior counsel’s contention that, the trial court having found that the Appellants were not liable to the Respondent, it followed that no costs could possibly have been awarded against the Appellants was a misconception of the finding of the learned trial court.
Learned Counsel submitted that, the learned trial judge had unequivocally held that the Appellants were liable to the Respondent before making the observation which the Appellants were blowing out of proportion. It is submitted that, it is trite that costs follow events, therefore, the Honourable trial court having held that the Appellants were liable to the Respondent was right in awarding N50,000.00 as costs of litigation against the Appellants in favour of the Respondent. It is further submitted that the award of the cost of litigation by the learned trial judge was done in proper exercise of the court’s discretion as provided for in Order 52 Rules 3 and 7 of the High Court of the FCT, (Civil Procedure) Rules 2004 cited by the learned senior counsel. Learned counsel for the Respondent also argued that the case of OJIEGBE V. UBANI (supra), cited by the leaned senior counsel is inapplicable in this case since the costs awarded by the trial court is in no way out of place to justify itemization of how same was arrived at. Learned counsel therefore submitted that when it comes to the exercise of discretion by a trial court, the Appellate Court can only interfere when same is not exercised judicially and judiciously and the /Respondent having succeeded in proving its case on the preponderance of evidence, entitling it to judgment at the trial court against the Defendants/Appellants was entitled to the costs awarded in its favour and urged this Honourable Court to resolve issue 2 in favour of the Respondent and uphold the decision of the trial judge.
I have carefully considered all the arguments canvassed by both counsel for the Appellants and the Respondent and it seems to me that the very obvious question arising there from is whether or not the learned trial judge rightly evaluated all the evidence adduced before him in arriving at the decision appealed against to wit; that the Appellants were liable to pay the Respondent the claimed sum of money.
In arriving at his decision, the learned trial judge considered the issue of whether or not a contractual agreement arose between the Appellants and the Respondent, on the one hand, and/or between the Respondent and Muklar Construction Company ltd on the other hand, and came to the conclusion, as adumbrated in his judgment, at pages 16-18 of the record wherein he held as follows:-
“…..Now before an obligation to settle or pay a contract sum arises, there has to be a contractual relationship between the parties.
A contract is defined as a legally binding agreement between two or more persons by which rights are acquired by one party in return for acts or forbearance on the part of the other. See ORIENT BANK (NIG) PLC V. BILANTE INTL {1997} B NWLR (PT.515) 37.
In order to have an existing valid contract, certain factors must be presented. These include offer, acceptance, consideration, intention to create legal relationship and capacity to contract. From the evidence of PW1 Mr. Inyang Thomas, the Managing Director of the Plaintiff, he said sometime in 2001, on the basis of a mutual trust and understanding, the defendant engaged the services of the plaintiff as their project architects to design and produce drawings for the defendants Project: Development of Luxury Apartments on plot No.11 Kukwaba District, Abuja. The plaintiff went into action on receiving the instructions from the defendants and before the end of year 2001, the submitted for the defendant’s approval drawings on the project. On the 15th of February, 2002, the received a response on the submitted drawings from the defendants.
The evidence of PW1 was corroborated by the evidence of DW1, Wilma Aguele, the 2nd defendant and Managing Director of the 1st Defendant. In her evidence, she said the plaintiff, Arch-Span Consult Limited were introduced and referred to the entire project as architect’s designers by Wihabi Investment Ltd and myself, she also said the architects, Arc- Span Consult Limited were paid over 6 Million Naira for the architectural design work which they had prepared for the project. The relevant correspondences on the submission of the drawings between the plaintiffs and the Defendants are contained in Exhibits AC1, AC2, AC3, AC4, AC5, AC6, AC7, AC8 and AC9.
This piece of evidence leaves no one in doubt that there was an offer and acceptance between the Defendants. In effect, there is a binding contract between them…” He observed further,
“There is no evidence to show that there is an agreement between the Muklar Construction Company.
Limited for the payment of architectural fees. The agreement to pay architectural fees was entered into between the 1st and 2nd defendants, Union Homes and the Contractors, F,K. Construction and Muklar Construction Company Limited. This agreement was reflected in the minutes of the meeting held on 27th May, 2007, which is herein referred to as Exhibit DEF2. It is therefore proper to say that there is no any binding contract between the plaintiff and Mukhtar Construction Co. Ltd. And, therefore, the cannot legally maintain an action against Mukhtar Construction Company Limited.”
This finding by the learned trial judge is unimpeachable. From the evidence adduced before the trial court, particularly the evidence of PW1 and DWI which the learned trial judge found to have corroborated each other particularly on the status of the Respondent on the project, in that both testified to the effect that it was the Appellants that introduced and referred the Respondent to the project as Architects, Designers by the Wilbuahi Investment Limited.
In fact, when the Appellants entered into an agreement with Union Homes, Savings and Loans Limited, to fund it’s property development project in the FCT, Abuja, one of the terms and conditions for funding the project was that Union Homes, Savings and Loans Company limited as founders of the project appointed and approved two Construction Firms, F.K. Construction company Limited and Muklar Construction Company limited to carry out the construction of the property development as agreed between them. It was the 2nd Appellant, the Managing Director of the 1st Appellant that introduced and referred the Respondent to the project as its Architects, Designers for the project. It is also in evidence before the trial court that it was the Respondent that acted for the Appellants and no other person or group of persons from all available evidence including exhibits tendered, that engaged the services of the Respondent in the transaction giving rise to the present appeal. There was no evidence before the trial court of any agreement between the Respondent and Muklar Construction Company Limited for the payment of architectural fees.
While the agreement to pay for architectural fees was entered into between Union Homes and the Contractors, F.K. Construction Company Limited and Muklar Construction Company Limited as reflected in the minutes of the meeting held on 27th May, 2004, Exhibit DEF2,the fact still remains as found by the learned trial judge that there is no legally binding contract between the Respondent and Muklar Construction Company limited upon which the Respondent can legally maintain an action against Muklar Construction Company Limited for the said balance. In fact, he could not have done it. He was not a party to the agreement entered into between the Appellants and Union Homes when it agreed to fund the project and introduced its own Contractors into the project. The Respondent was introduced into the project by the Appellants and it all along worked for the Appellants and they are therefore responsible for payment of any outstanding sum for the services rendered it rendered to the Appellants. The agreement by which the Respondent was brought into project was between the Appellants and the Respondent and no any other person and it is therefore the Appellants that shall remain liable to the Respondent.
If as agreed in Exhibit DEF2, that the Contractors, F.K. Construction Company Limited and Muklar Construction Company Limited had in accordance with the funding construction and agreement with Union Homes, were to pay to total fees of 8 Million Naira to the Architects in respect of the properly development project whereby F.K. Construction agreed to pay 67% of the total 8 Million Naira as its obligation to the Architect while Muklar Construction Company Limited has an obligation to pay an outstanding sum of 33%, the fact still remains that the Respondent has no legal contract with Muklar Construction Company Limited to legally lay a claim against the Company as he was not privy to such agreement as documented in Exhibit DEF 2. While the basic fact remains as per Exhibit DEF 2, that Muklar Construction Company Limited are responsible for the payment of the said sum of N924,000,00 claimed by the Respondent, Muklar Construction Company Limited is not known to the Respondent. The Respondent was brought in by the Appellants and there is therefore a corresponding obligation on the part of the Appellants to pay the Respondent more especially in view of Exhibit AC10, a letter written by the Appellants to the Respondent in which it enclosed a cheque of (N7,000,000.00) Naira being full and final payment of all architectural designs and fees in respect of the project. Exhibit AC11 is a reply to Exhibit AC10.
In this respect therefore, I agree with the finding of the learned trial judge that this piece of evidence is a confirmation of the fact that the Appellants are directly responsible to the Respondent for the payment of architectural fee, while Muklar Construction Company Limited are responsible for the payment of the sum of N924,000,00 which is due to the Respondent through the Appellant being its 33% obligation for architectural designs.
The cheques issued in which the Respondent was paid N6,0776,000.00 all came through the Appellants. Similarly DWl testified under Cross Examination that the money was paid to the Respondent through the Appellants. The finding of the court that Appellants have a responsibility to collect money in cheque from Muklar Construction Company Limited or Union Homes, Savings and Loans in order to discharge its obligation for the payment of architectural fees to the Respondent cannot also be faulted. It is therefore not open to the Appellants to shift liability to a party not before the court. If the Appellants are running away from liability, they would have invoked the provisions of Order 10 Rule 18 (1) of the High Court of the FCT (civil Procedure) Rules, 2004, for the third party to come to court and answer the claims made against it. This, the Appellants have failed to do and cannot therefore run away from its responsibility to pay the Respondent.
In view of the foregoing therefore, it is my humble view that the learned trial judge unquestionably evaluates the evidence and appraises the facts before coming to the conclusion that there is a corresponding responsibility on the part of the Appellants to pay the sum claimed to the Respondent. Where a trial court unquestionably evaluates the evidence and justifiably assess the facts, and makes a findings of facts which is in no way perverse but were sufficiently justified from the pleadings and evidence, it is not the duty of an Appellate court to interfere with the findings of fact made by the trial court which had the advantage of hearing and seeing witnesses testify, so long as those findings are reasonably supported by evidence.
See UKATTA V. NDINAEZE (1997) 4 NWLR (PT.499) 251: NOILI V. AKINSUMADE (2000) 8 NWLR (PT.668) 298: AUCHI POLYTECHNIC V. OKUOGHE (2005) 10 NWLR (PT 933) 279: JINADU V. ESUROMBI (2005) 14 NWLR (PT.944) 142: NANNA V. NANNA (2006) 3 NWLR (Pt.966)1.
On evaluation of evidence and the ascription of probative value to such evidence which are in the realm of the trial court, the duty of the Court of Appeal is to find out whether there is evidence on record on which the trial court could have acted. Once there is sufficient evidence on record from which the trial court arrived at its findings of fact, the Court of Appeal cannot interfere. The findings of fact made by a trial court are entitled to respect by an Appellate court where it is clear that the trial court has adequately performed its primary duty of evaluating and ascribing probative values to the evidence before it. In such circumstances, such findings are to be approached by an Appellate Court with due caution and not on the basis that it would or might itself found otherwise. The essential consideration is that there is enough evidence on record from which the trial courts’ finding can be supported. See ENANG V. ADU (19811 11.12 SC 25; WOLUCHEM V. GUDU (19810 5 SC 291; IWEGO V. EZEEUGO 191992) 6 NWLR (PT 249) 561; JOE GOLDAY CD. LTD V. COB PLC (2003 5 NWLR (PT.814) 556; and EZEKWESILI VS AGBAPUONWU (2003J 9 NWLR (PT.827)337.
Based on the foregoing therefore, it is my view that the learned trial judge dispassionately performed his duty and his findings are not perversed. This issue is therefore resolved in favour of the Respondent against the Appellants.
On the issue of costs, I am of the humble view that the learned trial judge exercised his discretion to award costs judicially and judiciously.
Costs naturally follows events and I find the award of N450,000.00 as costs of litigation from the 6th of June 2005 when the action was instituted till judgment was delivered on the 20th of September 2006, fair. The issue of costs is also resolved against the Appellants and in favour of the Respondent.
This appeal is therefore without merit and it is hereby dismissed. The judgment of the trial court delivered on the 20th September, 2006 is hereby affirmed. The Respondent’s entitled to costs of this appeal which is assessed at N50,000,00 against the Appellants.
Other Citations: (2009)LCN/3432(CA)
