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.
It was further argued by the Defendant/Appellant that having found from the evidence before him that the Defendant/ Appellant was not a party to suit No. LD/150/87 and also that although there was an agreement to pay the Plaintiff/Respondent, there was no agreement to indemnify the Plaintiff/Respondent against any loss in respect of the transaction, the learned trial Judge ought not to have held that there was a legal duty imposed on the Defendant/Appellant to indemnify the Plaintiff/Respondent against its liability. I hasten to say that what the Appellant regarded as specific findings in respect of the evidence of the Plaintiff’s witness are indeed not. Rather, they are a reproduction or review of the evidence given by the said witness under cross-examination.
The Respondent after a copious review of the totality of the evidence led submitted in their Brief of Argument that the Lagos State Government was under the obligation to pay them (Respondent) the judgment debt in suit No. LD/150/87; therefore the judgment of the Court below should not be upturned, it was finally contended.
In finding for the Plaintiff/Respondent, the learned trial Judge had, in his Judgment, reasoned inter alia:
“In effect, the testimony of the Plaintiff’s witness remains unchallenged, uncontradicted and uncontroverted …………………… The question is whether the Lagos State Government owes the Plaintiff an obligation to indemnify the Plaintiff in this suit.
In the circumstances of this case, I am of the view that, the Lagos State Government – the Defendant owes the Plaintiff herein a legal duty to pay the money they are owing to the Plaintiff. That legal duty imposes on the Defendant liability to indemnify the Plaintiff against its liability is (sic) suit No. LD/150/87. I therefore hold that the Plaintiff in the suit is entitled to declaration as prayed.
Having so held, it follows as a matter of natural corollary that in order to avoid multiplicity of action, the second leg of relief sought must of necessity succeed.
Accordingly, it is hereby declared that the Lagos State Government is obliged to indemnify the Plaintiff, against the Plaintiff’s liability under the suit No. LD/150/87.”
In civil cases, the like of the one under consideration, the onus of proof shifts from the Plaintiff to the Defendant and vice versa, from time to time, as the case progresses. Called in Latin maxim as the onus probandi it rests on the party who would fail if no evidence at, all or no more evidence, as the case may be, were given on either side.
So, once pleadings have been settled and issues joined, again as in the instant case, the duty of the Court is to proceed to the trial of those issues. If one of the parties fails or refuses to submit the issues so raised in his pleadings for trial by calling or giving evidence in proof thereof, also as in the present case, the trial Judge is duty bound, under the law, to resolve the case against the defaulting side unless there are some legal reasons dictating to the contrary. See Imana v. Robinson (1979) 3 & 4 SC 1.
In deed, by failing to call evidence in proof of the averments in his pleadings, a Defendant is taken to have abandoned his defence. One crucial exception where the trial Judge will not find for a Plaintiff who is the only part that has adduced evidence is where the defence has, by vigorous cross-examination of the plaintiff and his witnesses manifestly demolished the case of the Plaintiff. It must however be said that a Defendant who adopts this approach obviously takes enormous risk in not adducing evidence to counter-balance the evidence of the Plaintiff.
What I have just said finds support in the decision of the Supreme Court in Mogaji & 7 Ors. v. Odofin & 7 Ors. (1978) 4 SC 91 whereat pages 93 – 94 the apex court reasoned:
“When an Appellant complains that a judgment is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the Respondent, the judgment given in favour of the Respondent is against the weight which should have been given to the totality of the evidence before him.”
It follows from the principles of law that I have stated supra that even if a defendant has refused to give evidence in proof of the issues raised in his pleadings but has succeeded in demolishing the evidence led by the plaintiff it cannot be properly said that the evidence of the Plaintiff was unchallenged, uncontradicted and uncontroverted. I shall answer anon issues Nos. 1, 3 and 4 identified by the Appellant along with the two issues raised by the Respondent.
Suffice it to say that issue No.2 on the Appellant’s brief admits of no other answer than one in the negative. The crucial issue for determination here is whether the Lagos State Government is liable to pay the judgment debt by reason of contract of indemnity.
A right of-indemnity is an incident of certain legal relationships. Such common legal relationships are in the area of agency or master/ servant relationship. Rights of indemnity may also spring up from principles of equity. Indeed, an indemnity contract arises where the indemnifier promises to meet any legal liability which the indemnified is held to be under.
This Court in First Bank Ltd. v. Pan Bisbilder (1990) 2 NWLR (Pt. 134) 647 held this type of contract to be an assurance or an undertaking to the creditor that if the principal debtor fails to pay, the guarantor or the surety or the indemnifier would repay the debt. It must however be emphasized that the principal debtor must always owe primary liability to the creditor with the promisor being liable to pay only when the principal debtor defaults. When such an agreement is written or oral, the object always sought by the Court in construing it is to ascertain what the mutual or even the presumed intentions of the parties are as to the legal obligations owed to each other.
I must say that it is not always an easy task for the Court. I have said supra that by failing to call evidence in proof of the averments in his pleadings, the Defendant/Appellant has abandoned his Statement of Defence. The abandonment is however limited to those paragraphs of the Statement of Defence in which the Defendant/Appellant has joined issues with the Plaintiff/Respondent. The abandonment will not extend to those paragraphs of the defence which have admitted certain averments in the Statement of Claim.
To allow a blanket jettisoning of the paragraphs of the defence in the circumstances of this case is to encourage a party to blow hot and cold at the same time. Equity will not allow anybody to approbate and reprobate at the same time. Part of paragraph 1 of the Statement of Claim wherein the Plaintiff/Respondent averred that judgment in the sum claimed had been entered by the Court against the Lagos State Building Materials Company Limited was admitted by paragraph 1 of the defence. In paragraph 2 of the amended Statement of Claim, the Plaintiff/Respondent averred this:
“The Plaintiff shall at the trial of this action contend that the Lagos State Building Materials Company Limited was, at the material times, the agent of the Government of Lagos State, and that the Lagos State Government was responsible for the settlement of the aforesaid judgment. The Plaintiff shall, further, lead evidence to establish that the Lagos State Government, subsequent to the said judgment, represented to the Plaintiff that it was indeed, responsible for settling the said judgment.”
The reaction of the defence to this averment is paragraph 2 of the defence which reads:
“The defendant admits paragraph 2 only to the extent that at the time the judgment referred to herein was delivered, LSBMC had been wound up according to law.”
Certainly paragraph 2 of the defence had not met frontally the contents of paragraph 2 of the Plaintiff’s pleadings. Again in paragraph 2 of this pleadings, the plaintiffs averred:
“The Lagos State Development and Property Corporation was one of the other agencies of the Lagos State Government employed for the purposes of supervising and co-ordinating building works embarked upon for the purpose of implementing these election campaign pledges.”
In an attempt to meet this averment the Defendant in paragraph 3 of their pleadings averred:
“The defendant admits paragraph 3 only to the extent that it had a discussion with Central Merchants and their authorized agents.”
Paragraph 3 of the defence quoted supra has not met the averments in paragraph 3 of the Plaintiff’s pleadings. The only witness called by the Plaintiff one Robert El-Chami said under examination- in-chief:
“The Plaintiff made efforts to have the judgment paid. We held negotiations with the Lagos State Government to persuade them to pay the money. They made promises but they still did not pay, exhibits P4 and P5 items No. 29 or 30 on both documents (exhibits P4 items 29 shows provision for on shore debts to the Plaintiff. Exhibit P5 items 30 is provision for the payment of shore debts to the plaintiff Exhibits P4 and P5 were published by the Lagos State Government that they would pay the money I know a company called Iprofin (Hong Kong Ltd.). The company was involved in the supply of steel. That company paid for the supply of steel to come to Nigeria. Plaintiff company was to pay Iprofin (Hong Kong) for the steels. The Lagos State Government was to pay the Plaintiff company. The Plaintiff has not paid Iprofin. We have not paid because we are waiting for Lagos State to pay us the money so we can remit.”
Under cross-examination, the witness was very emphatic that the Lagos State Government was not a party to the suit No. LD/150/87 in which the said sums were awarded against Lagos State Building Materials Company Limited. It is not in dispute between the parties that Lagos State Government was not a party to the suit in which the awards were made. The case of the Plaintiff/Respondent through their pleadings and by the evidence of the only witness called, is that the Lagos State Government have sufficiently held themselves out as an indemnifier giving an undertaking that if the judgment debt was not paid by the debtor, they would pay it.
The witness (Robert EI-Chami) said they have held several meetings with the Defendant/Appellant to get them to pay the judgment debt. There is also that uncontroverted evidence by him to the effect that the Defendant/Appellant made provisions in their budgets for 1994 and 1997 – exhibits P4 and P5 respectively for the payment of the sums to the Plaintiff/Respondent. The evidence on it has not been controverted by the Defendant/Appellant.
I now pause to answer issue No.1 on the Appellant’s Brief of Argument in the affirmative. It is important here to observe …. that exhibits P4 and P5 were tendered by consent of both Counsel before the viva voce evidence was taken. It will be most inequitable to allow the Defendant/Appellant to renege from the position of accepting to pay the judgment debt which they voluntarily created by the evidence reviewed above.
That doctrine simply stated, translates to this: where a person properly described as the representor has made a representation to the other, called the representee, in words, or by acts, or by conduct or by some sort of silence or inaction which he intended to use to induce the representee to alter his position to his detriment demonstrating faith in the representation so made, as in the instant case, the representor or promisor, in any litigation which may thereafter take place between him and the representee must be estopped by force of equity, from making or attempting to establish by evidence any averment which is at variance with his former representation. I hasten to add that though estoppel is part of the law of evidence its sole function is to place an obstacle in the way of a case which might otherwise succeed or to remove an impediment from the way of a case which might otherwise fail. It is a bar to testimony; it has no operation or efficacy whatsoever see A.-G., Bendel State & Ors. v. A.-G., Federation (1982) 3 NCLR 1.
Estoppel does not lie in mere imagination or assertion, it is only proven fact that gives rise to its aI am of the view that the doctrine of estoppel by representation is very much applicable to this case. pplication. In Greenwood v. Martins Bank Ltd. (1933) AC 51 Lord Tomlin stated the essential ingredients that make for a successful application of the doctrine in the following terms:
“(1) A representation or conduct amounting to a representation intended to induce a course of conduct on the part of the … Person to whom the representation is made; an act or omission resulting from the representation whether actual or by conduct by the person to whom the representation is made.
(2) An act or omission resulting from the representation, whether actual or by conduct, by the person to whom the representation is made.
(3) Detriment to such person as a consequence of the act or omission.
The learned trial Judge in holding that the Appellant was duty bound in law to pay the judgment debt to the Plaintiff has, in my considered view correctly applied the principles underlying the application of doctrine of estoppel to the proven facts before him as I have stated supra. Issues Nos. 3 and 4, on the Appellant’s Brief of Argument are therefore answered in the affirmative. For the same reasons, I hereby answer issue No.2 on the Respondent’s Brief of Argument in the affirmative.
In sum, having regard to all that I have said supra, my Judgment is that this Appeal is unmeritorious. It must be dismissed and I accordingly dismiss it while I affirm the Judgment of the Court below. The Respondent is entitled to the cost of this Appeal which I assess and fix in their favour but against the Appellant at N7,500.
Other Citations: (2003)LCN/1428(CA)