Bikay Engineeering Ltd V. Governor, Ondo State & Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

NWALI SYLVESTER NGWUTA, J.C.A. (Delivering the Leading Judgment)

Endorsed on the writ of summons dated 30th September, 2005 and issued at the Registry of the High Court of Justice Akure Ondo Judicial Division and reproduced in the amended statement of claim dated 17th November 2005 is the appellant’s claim against the respondents:

“The plaintiff’s claim against the defendants jointly severally is the sum of N100,000,000.00 (One hundred million naira) being special and general damages for breach of contract against the defendants on an agreement with the plaintiff dated the 1st day of February, 2002 awarded the design, supervision and contract management for the rehabilitation of Ilutitum – Omotosho Roads Ondo State of Nigeria to the plaintiff. The defendants had refused or neglected to fulfil the contract despite repeated demands.”

See page 10 of the records.

If the amended statement of claim dated 17th November, 2005 was filed in Court, the record does not indicate the date it was filed. Be that as it may, the summary of the claim in paragraph 16 of the amended statement of claim is the same as the one in paragraph 16 of the original statement of claim dated, and filed on 10th October, 2005.

The Plaintiff in the court below is the appellant and the defendants are the respondents herein.

The respondents entered appearance and in the statement of defence dated 17th January, 2006 and filed on 19th January, 2006 they not only denied the plaintiff’s claim but described the action as “frivolous, vexotious, gold digging” and urged the trial Court to dismiss it with substantial cost against the plaintiff (now appellant).

The reply to the statement of defence dated and filed on 6th March, 2006 is by far more voluminous than either the original statement of claim or the amended statement of claim. An equally voluminous amended reply to the statement of defence was dated 17th November, 2006 but if it was filed the filing date was not indicated in the record.

The appellant opened its case on 21/1/2008 before Olateru Olagbegi then Chief Judge of Ondo State. Appellant rested his case on the testimony of Engr. Abiola lfederu, its Managing Director. The respondents called two witnesses. DW1. Engr. Benson Otegbeye, the Director of Civil Engineering, Ministry of Works, Ondo State and DW2 Engr. Akinbode Stephen Makanjuola is the Principal Resident Engineer in charge of the construction of Ilutitum – Omotosho road.

Learned counsel for the parties addressed the court and in its reserved judgment of 28th October 2008, the trial Court reviewed the evidence on each side, considered the address of learned counsel for the parties and concluded thus:

“From the totality of the evidence adduced in this case the plaintiff has failed to discharge the burden of proof placed on it in this case. It has also failed to establish the fact that it is entitled to any damages in its claim for the alleged breach of contract. Consequently I find no merit whatsoever in the present case and some is hereby dismissed. I shall make no order as to cost.”

See page 69 of the records.

Applicant was aggrieved and in a notice of appeal dated 10th November, 2008 and filed on 14th November, 2008 he appealed to the Court on one ground of appeal hereunder reproduced:

“The decision is against the weight of evidence. Further grounds of appeal will be filed on receipt of proceedings from the lower Court.”