Cross River State Water Board V. Nugen Consulting Engineering Ltd. & Ors. (2006)

LawGlobal-Hub Lead Judgment Report

CHRISTOPHER MITCHELL CHUKWUMA-ENEH, J.C.A.

This is an appeal by the 1st defendant against the judgment of the Akamkpa High Court of Cross River State (CORAM: Ogar, J.) delivered on 15/12/1999 in favour of the plaintiffs against the defendants as per the claim.

The plaintiffs’ claim against the defendants (i.e. 1st, 2nd, 3rd and 4th) in synopsis jointly and severally is as follows:

“the sum of N3,604,736.68 (Three million, six hundred and four thousand, seven hundred and thirty-six naira sixty-eight kobo) being the total amount due to the plaintiff from the defendants for the designing and supervision of construction of water supply scheme for Calabar with interest on the basis of statute at the rate of 15% from 7th February, 1994 until judgment and 10% from judgment until liquidation of the judgment debt.”

Aggrieved by the decision, the 1st defendant within the extended time granted on 16/10/2002 by this court has brought this appeal upon a notice of appeal at pp. 46 – 49 of record containing five grounds of appeal. The parties have since filed and exchanged their respective briefs of argument in the matter.

The appellant has in its brief of argument raised three issues for determination as follows:

“1. Whether the trial court was right in holding that on the facts averred in the affidavit of the defendants, the defendants had not made out a case to warrant the transfer of this suit to the ordinary cause list. (Grounds 1, 3 and 5 of the appeal).

2. Whether this suit was properly constituted with respect to the parties (Ground 2).
3. Whether the trial court was right in awarding prejudgment interest of 15% to the plaintiffs in the absence of any affidavit evidence setting forth the grounds upon which such an award could be predicated (Ground 4).”

The 1st and 2nd (plaintiffs’) respondents in their amended joint brief of argument have adopted and relied on the same issues as raised for determination by the appellant. They however have firstly taken a preliminary objection as to the competency of grounds 1, 2, 3 and 4 of the grounds of appeal. I shall revert to that question later in this judgment.

The 3rd and 4th respondents otherwise the 2nd and 3rd defendants in the court below, who have not appealed the said judgment have raised two issues for determination by replicating issues 1 and 2 as raised in the appellant’s brief of argument. They have not concerned themselves with issue 3 and no reasons have been offered for this omission.

The facts of this case are not complicated nor are they so much in any controversy. The suit was entered on the undefended cause list upon the claim above-mentioned, the same having been verified by a supporting affidavit of 17 paragraphs deposed to by one Monica Ibrahim. The 1st and 2nd respondents as the plaintiffs in the court below alleged having completed their contract entered into as per exhibits A and A1 for which various interim payment certificates i.e. exhibits B – B3 totaling N3,604,736.68 were approved for payment. And that the appellant and 3rd & 4th respondents (as defendants) failed and neglected to pay the said amount. It is not in contention that to the extent that the plaintiffs entered into contracts with the 3rd respondent, the defendants in the lower court admitted the existence of the contracts. It was asserted that the 1st and 2nd respondents were aware that on the recommendation of the appellant herein, they were to be paid by the said third party – one Hold-Trade Co. Ltd. which was not made a party to this suit. On that assertion the defendants in the court below denied owing the 1st, 2nd respondents (plaintiffs) and contended that the suit was incompetent for want of territorial jurisdiction and as being improperly constituted as to the plaintiffs (i.e. 1st and 2nd respondents) as parties to the suit and therefore an abuse of process.

The appellant in its brief of argument has argued that the court below has failed to appraise the defence’s case as per the affidavit verifying the notice of intention to defend in which they i.e. defendants as contended have sufficiently disclosed a defence on the merit to be let in to defend the action at the trial. They have alleged conflicting affidavits of the parties with regard to the failure of the 1st and 2nd respondents to tender the full contract documents i.e. pages 2 – 10 of the contract agreement which were deliberately omitted and as well, that the contract fees have to be paid by a third party – Hold-Trade Co. Ltd. which should have been joined in the action including also that exhibits B-B3 are fraudulent, all these, it is contended to constitute the grounds which have misled the trial court to misconceive and wrongly to apply the import of Order 23 rule 3(1) of the Cross River State High Court (Civil Procedure) Rules, 1987 to the application and for improperly invoking section 149(d) of the Evidence Act against the defendants in the court below. It has been reiterated that the 1st and 2nd respondents as plaintiffs have nonetheless to succeed on the strength of their case; and that non-joinder of the Hold-Trade Co. Ltd. in itself is even material enough to cause the transfer of the matter to the general cause list. It has relied on Macaulay v. NAL Merchant Bank Ltd. (1990) 4 NWLR (Pt.144) 283; Santory Co. Ltd. v. Elabed (1998) 12NWLR (Pt.579) 538, Calvenply Ltd. v. Pekab Int. Ltd. (2001) FWLR (Pt. 61) 1655; (2001) 9 NWLR (Pt. 717) 164 and Nyav. Edem (2001) FWLR (Pt.57) 825 at 565, (2000) 8 NWLR (Pt. 669) 349 to submit on the liberal approach of the court in determining when a defendant would be given leave to defend in an action of this nature. And so, that the trial court has failed to properly appraise the defence’s case as deposed to in their affidavit, which it is contended has met the stipulation required under Order 23 rules 3(1) (supra).

On issue two, the appellant has challenged the suit as constituted as to parties and the plaintiffs’ (1st and 2nd respondents) locus standi to sue at all and has referred to exhibit A and A1 i.e. pages 1 and 11 of the contract documents made between Government of Cross River State and the 1st and 2nd respondents doing business under the name and style of Nugen Consulting Engineers Ltd. to contest how Nugen Consulting Engineers Ltd. (i.e. 1st respondent) has emerged as a party and has made the point that only parties to a contract derive rights and obligations under it and that it cannot be enforced against a non-party to it; See: Oshevire v. Tripoli Motors (1997) 4 SCNJ 246 at 255, (1997) 5 NWLR (Pt.503) 1 and Chitty on Contract (23rd Edition) p. 453 para. 971. Alfotrin Ltd. v. A.-G .. of the Federation (1996) 125 SCNJ 236 at 256, (1996) 9 NWLR (Pt. 475) 634; UBN Ltd. v. Penny-Mart Ltd. (1992) 5 NWLR (Pt.240) 228 at 240; Negbenebor v. Negbenebor (1971) 1 All NLR 210 at 270 – 271 and Federal College of Education, Okene v. Anyanwu (1997) 4 NWLR (Pt.501) 533 at 564. On the question of competency of the 1st and 2nd respondents (plaintiffs) to sue, the appellant has referred and relied on Ezeafulukwe v. John Holt Ltd. (1996) 25 SCNJ 104 at 110; (1996) 2NWLR (Pt. 432) 511;A.-G .. Federation v. A.I.C. Ltd. (2000) FWLR (Pt.26) at 1758 to 1744; (2000) 10 NWLR (Pt. 675) 293; Ikpeazu v. ACB Ltd. (1965) NMLR 374 to challenge their competency. The point is made that the procedure under the undefended list having eliminated full scale trial, its technical nature must be strictly followed: see Olubusola Stores v. Standard Bank of Nig. Ltd. (1975) 5 UILR (Pt.1) 27 at 30 per Coker, JSC. Ezuma v. Nkwo Market Community Bank Ltd. (2000) FWLR (Pt.28) 2243 at 2265; (2000) 10 NWLR (Pt. 676) 638. In short, that the instant action has not been commenced by proper parties. And so, the 1st and 2nd respondents on whom the onus lies have not discharged the same.

These inadequacies, it is submitted show that the suit is incompetent and that the appellant should have been let in to defend the action for these inadequacies to be fully ventilated.

The appellant on the 3rd issue has submitted that the award of 15% prejudgment interest not having been properly grounded upon the affidavit evidence has no basis and has been wrongly awarded.