Godwin C. Azubuike & Anor. V. Government Of Enugu State & Anor. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABUBAKAR JEGA ABDUL-KADIR, J.C.A: (Delivering the Leading Judgment)

This is an appeal against the Judgment of the High Court of Enugu State, sitting at Enugu delivered by Akubuilo, J. on the 23rd day of June 2006.

The facts leading to this appeal are stated thus:-

The appellants herein as plaintiffs instituted an action in the lower court against the respondents wherein they claimed a total of N5 Million special and general damages being payment for assets received for the Government of Enugu State belonging to defunct ENDC, ADC, ADA and commodity Boards.

The contract was awarded during the military regime through Enugu State Government’s special committee on Anti-Government Activities whose chairman was one squadron leader TSAKAR.

Pleadings were duly filed an exchange and in answer to the plaintiffs claim the defendants stated that the entire transaction was a scam and there was no valid contract. In another breath the defence posited that since no estate valuer was called to determine the value of the job executed by the plaintiffs in the so called “scam” or “invalid” contract the plaintiffs were not entitled to the amount of compensation claimed as damages.

At the trial the secretary of committee testified to the knowledge of the said contract and authenticated the documents tendered by the plaintiffs in support of their claim.

In its judgment the trial court held inter-alia that there was no valid contract as the Government Gazette establishing the Committee was not tendered and the rules and regulations for the award of the contract of such magnitude were not followed.

Dissatisfied with the judgment, the appellants appealed to this court vide their Notice of Appeal dated 24th August 2006 and filed on the 29th August 2006 containing three grounds of appeal.

The appeal was heard on the 30/10/2012. Counsel to the appellants Mrs. K Eyiuche informed the court that the appellants brief of argument is dated 17/4/07 and deemed filed on 28/6/07 . Counsel adopted the brief of argument and urged the court to allow the appeal, set-aside the judgment of the lower court and allow the claim.

Counsel to the Respondents, Mr. J.O. Edeh stated that the Respondents, brief of argument is dated 27/8/07 and deemed filed on 22/2/2010, Learned counsel adopted the brief and urged the court to dismiss the appeal.

The appellants in their brief raised the following issues for determination:

1. Whether there was a valid contract between the appellants and the Enugu State Government.
2. Whether a valid pre-action notice was issued to the Enugu State Government and
3. Whether the appellants proved their entitlement to their claim in the lower court.

It is noteworthy that these were the same issues argued by the parties at the trial nisi prius and which the court a quo decided resulting in this appeal, so this appeal is essentially contending that those issues were not correctly decided by the court a quo. I will adopt the same issues but couch the first two differently as follows:-

1. Whether the Government of Enugu State is bound by the contract entered into by its Special Standing Committee on Anti-Government Activities with the appellants
2. Whether a notice of intention to sue the Government of Enugu State was delivered to its Secretary before the commencement of the Suit at the court a quo.

The first issue for determination which is derived from the first ground of appeal attacks the part of the judgment of the trial judge that the appellants were not awarded the contract by the Government of Enugu State. The court a quo so concluded following its decision that “DW1 had stated in evidence that it is only the State Tenders Board that could handle the award of a contract where such a huge amount of money was involved, and that the members of the Committee advised the Squadron Leader to that effect, but the Squadron Leader went ahead to award such a contract to the plaintiffs.