Bikay Engineering Ltd. V. Governor Ondo State & Ors. (2013)
LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL
ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment)
This is an appeal against the judgment of the Ondo State High Court, Akure Division delivered on 28th October, 2008 in Suit No. AK/233/2005.
In an amended statement of claim dated and filed on 20th October, 2005, the Appellant as the plaintiff claimed as follows:-
“The plaintiff’s claim against the Defendant (sic) jointly and/or severally is for the sum of N100,000,000 (One Hundred Million Naira) being special and general damages for the (sic) breach. 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 Ilutitun – Omotoso Road, Ondo State of Nigeria to the plaintiff. The Defendants had refused and/or neglected the fulfill the contract despite repeated demands.”
(See page 7 record of appeal)
In a statement of defence dated 17/01/2006 but filed 19/01/06, the Defendants, while admitting some of the paragraphs of the statement of claim denied others and while putting the Plaintiff/Appellant to the strict proof of all those denied averments, urged on the lower court to dismiss the claim in the action for being frivolous, vexatious and an exercise in gold – digging.
Against the statement of defence of only 18 paragraphs, the Plaintiff/Appellant responded with a 54 paragraph reply, which was later amended and seemingly filed on 17/11/2006. Issues having been duly joined and pleadings concluded, the matter went to trial. At the trial, the Managing Director of the plaintiff/appellant gave oral evidence in support of its claim. A number of documents were also tendered and admitted in evidence through him. It was after his evidence that the Appellant closed its case. For the defence, 2 witnesses gave oral evidence at the end of which they also closed their case. Respective learned counsel to the parties each addressed the court.
In its judgment, the lower court observed and decided 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 withsoever in the present case and same is hereby dismissed.”
(See lines 1 – 5 at P.69 of record of appeal).
The Appellant was dissatisfied with this judgment and upon an application dated and filed on 17/10/2011, the Appellant was granted extension of time by this court to appeal whereupon it filed a notice of appeal dated 5/12/2011. The order for extension of time was made on 31/11/2011. This notice contains 4 grounds of appeal.
To argue the appeal, respective learned counsel filed briefs of argument. The Appellant’s brief formulated and argued 4 issues for the determination of this appeal. They are:-
“1. Whether there was a contract between the APPELLANT And the RESPONDENT
- Whether there was a breach of contract by the RESPONDENT
- Whether there was a demand by the APFELLANT to the RESPONDENT for damages arising from the breach of contract by the RESPONDENT
- Whether by virtue of the breach by the RESPONDENT the APPELLANT is entitled to damages.”
The Respondents adopted the 4 issues formulated and argued on behalf of the Appellant.
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