Mr. Caleb James Effiong V. Ata Isi Supplies & Services Ltd & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JAFARU MIKA’ILU, J.C.A (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Cross River State delivered on 29th June, 2009.

The appellant commenced this action by way of writ of summons dated 25/5/2009. The appellant’s claims against the defendants are as follows:-

1. The sum of N564,158.24 being an outstanding contractual sum of the 3rd stage of work for two units.
2. 5% of these contract value withheld by the defendants despite issuance of completion certificate and duration over the stipulated 3 months from the period of completion of each stage of work and amounting to N60,000.00.
3. The total sum of N3,114,304.55 for the two units being the outstanding fee for the last two stages and 80% of the completed job without payment.
4. N2 million being general and special damages for inconvenience and breach of the contract agreement.

The trial court conducted the trial of the matter at the end of which the trial court gave judgment as follows:-

1. The defendants are to pay the plaintiff the sum of N20,000.00 withheld by the defendant as retention fee for stage 1 and 2 of the job completed by the plaintiff.
2. The court hereby declare (sic) that the defendant have made (sic) complete payments to the plaintiff for the 3rd stage of the job completed so far by the plaintiff.
3. The defendants owes (sic) the plaintiff 5% of the sum of N596,325 for each of the two units so far completed by the plaintiff.
4. The defendant again owes the plaintiff 20% of the sum of N960,827.05 for the 5th stage of the job done by the plaintiff as agreed by both parties for each unit.
5. The court awards general damages of N100,000 against the defendants as special damages have not been so proved by the plaintiff.

The said judgment was delivered on 29/6/2009. It is against the said judgment the appellant has filed this appeal. The respondents have also filed a notice of cross-appeal on 6/8/2009.

Briefs have been filed and exchanged before this court. The appellant has framed two issues for determination in this appeal. They read as follows:-

(1) Whether or not the trial court did evaluate the evidence placed before it and whether its findings are legally supportable in view of all the evidence put before it and the circumstance of the case.

(2) Whether the lower court was right in its assessment and award of damages by awarding to the appellant a paltry sum of N100,000 in disregard of the contents of the heads of claim contained in items 23(d) of the amended statement of claim, the evidence accepted by it and in the light of the principles applicable to a case of this nature.

On the other hand the respondents/cross-appellants have framed the following issues for determination:-

1. Whether the learned trial Judge appraised and or evaluated the evidence to support her reasoning and conclusion. (GROUNDS 1 % 3 OF THE NOTICE OF APPEAL).
2. Whether the award of N100,000.00 as General Damages was correct, right or proper in the circumstance (Grounds 2 of the and 2 of the Cross Appeal).

It is to be made clear, as held in many authorities that the evaluation of evidence and ascription of probative value to such evidence are the preserve of the trial court which had the opportunity of hearing and assessing the evidence and demeanour of the witnesses. An appellate court does not normally disturb the findings except in the following circumstances:-

(a) Where the trial court did not make a proper use of the opportunity of seeing and hearing the witnesses at the trial.

(b) Where the trial court drew wrong conclusions from acceptable evidence.

(c) Where the trial court took an erroneous view of the evidence adduced before it.

(d) Where the trial court’s findings are perverse in the sense that they are unsupported by evidence or did not flow from the evidence accepted by it.