Attorney-general of Lagos State V. Purification Techniques (Nigeria) Limited (2003)

LawGlobal-Hub Lead Judgment Report

PIUS OLAYIWOLA ADEREMI, J.C.A.

The Appeal is against the Judgment of the High Court of Lagos State delivered on 2nd June, 1993 in suit No. LD/835/99. The Respondent who was the Plaintiff at the Court below had sued the Appellant who was the Defendant in that Court claiming:

(1) A declaration that the Lagos State Government is obliged to indemnify it against its liability in suit No. LD/150/87.

(2) An order directing the Lagos State Government to pay to the Plaintiff the said sum of US$166,363,090.19 being the sum the Plaintiff is obliged to pay to its overseas suppliers under the Judgment in suit No. LD/3138/96 and all interest accruing therein.

Pleadings filed and exchanged between the parties are the Statement of Claim and the Statement of Defence sequel to the taking of the viva voce evidence of the only witness called in the case and that was by the Plaintiff/Respondent as the Defendant/Appellant called no witness, by consent of Counsel on both sides, some documents which were later tendered as exhibits P1- P6 were admitted in evidence. At the end of the trial, as I have said Judgment was entered by the trial Judge in favour of the Plaintiff/Respondent as claimed. Dissatisfied with the said Judgment, the Defendant/Appellant has appealed therefrom to this Court.

The original Notice of Appeal was, with the leave, amended and the amended Notice of Appeal which was filed on the 29th of January, 2001 carried five Grounds of Appeal.

Distilled from the said five grounds for determination are four issues which, as set out, in the Appellant’s Brief of Argument are in the following terms:
(1) Whether in the circumstance, of the case, the testimony of the Plaintiff’s sole witness is unchallenged, uncontradicted and uncontroverted.
(2) Whether the Defendant called any evidence in the case.
(3) Whether the learned trial Judge properly evaluates (sic) the evidence both oral and documentary placed before him.
(4) Whether the Defendant (Appellant) is liable and obliged to indemnify the Plaintiff (Respondent) against its liability to Iprofin (Hong Kong) arising under the Judgment in suit No. LD/150/87.

For their part, the Respondent identified two issues from the Grounds of Appeal contained on the said amended Notice of Appeal which as contained in their brief, they are as follows:
(1) Whether upon all the evidence before the Court the Respondent proved its case upon a preponderance of evidence.
(2) Whether the learned trial Judge was correct in holding that, upon the facts presented to the Court, the Appellant was obliged to indemnify the Respondent against its liability in suit No. LD/150/87.

I have had a careful examination of the issues formulated by the two sides. Issues No.1, 2 and 3 on the Appellant’s Brief can be subsumed into issue No. 1 on the Respondent’s Brief; while issue No.4 on the Appellant’s Brief is substantially the same as issue No. 2 on the Respondent’s brief. I am of the considered view that all the issues on the two sides can be taken together. That I shall do in this judgment.

When this Appeal came before us for argument on 9th April, 2003, Mr. Pedro, Director of Civil Litigation, Lagos State adopted the brief of the Appellant filed on 12th January, 2001 and the Reply Brief filed on 17th June, 2002. On issue No.4 on the Appellant’s brief, learned Counsel submitted that there existed an agency relationship between the Respondent and Central Merchant Limited and while praying in support of that submission he cited the case of Prof Anya v. Imo Concorde Hotels (2002) 18 NWLR (Pt. 799) 377, (2002) 12 SC (Pt. 2) 77 at 99-100 on the issue whether the action was founded on tort or contract, he urged that the Appeal be allowed. Mr. Akpata, learned Counsel for the Respondent adopted the brief of his client filed on 28th February, 2001 and urged that the Appeal be dismissed.

I shall start the consideration of this Appeal by identifying the case of each party as could be gleaned from their respective pleadings. It is common, ground, from their pleadings, that the Lagos State Building Materials Company Limited was adjudged liable by the High Court of Lagos State to pay to the Plaintiff/Respondent the sum of N9,519,874.12 and $12,017,520.00 and interests on both sums at the rate of 12% per annum from January 1, 1987 until payment.

The Plaintiff/Respondent further averred in their pleadings that the Lagos State Building Materials Company Limited, the Defendant in suit No. LD/150/87. Purification Techniques (Nig.) Ltd. & Anor. v. Lagos State Building Materials Co. Ltd. against whom judgment in the sums now being claimed was given, was at the material time the agent of the Lagos State Government.

In his Statement of Defence, the Defendant/Appellant denied that the Lagos State Building Materials Company Limited was the agent of the Lagos State Government, and therefore could not be held liable for the settlement of the judgment debt.

In his brief of argument on issues Nos. 1, 2 and 3, the Appellant contended that failure on the part of Defendant/Appellant to call evidence could not justify the assertion that the Plaintiff’s evidence was unchallenged and uncontradicted; that it was wrong to hold, as the trial Judge did that the Defendant/Appellant never called evidence when he consented to the tendering of some documents as exhibits, and after reviewing the evidence led, the Appellant finally, on the three issues submitted that having failed to establish by evidence the liability of the Defendant/Appellant to indemnify it against loss arising from the enrolment order in suit No. LD/150/87, the Plaintiff/Respondent was not entitled to judgment consequently, the learned trial Judge failed to properly evaluate the evidence before him.