Nigergate Limited V. Niger State Government & Ors. (2004)

LawGlobal-Hub Lead Judgment Report

BULKACHUWA, J.C.A.

The appellant as plaintiff before the Minna High Court claimed for the following reliefs against the respondents by way of originating summons:

“I. A declaration that the purported termination of the contract between the 1st defendant and the plaintiff is ultra vires the agreement dated 22nd June, 2001 and therefore arbitrary, oppressive, illegal, wrongful, null and void and of no effect.

II. A declaration that the contract between the 1st defendant and the plaintiff dated 22nd June, 2001 is valid and subsisting and can only be discharged by effluxion of time and/or in accordance with the terms of the agreement.

III. An order of mandatory injunction compelling the 1st defendant, its agent, servants and privies to abide by the contract in accordance with the terms of the agreement dated 22nd June, 2001.

IV. An order of mandatory injunction compelling the 1st and 2nd defendants, their servants, agents and privies to restore the plaintiff to the control and management of the control posts at Jebba, Mokwa, Suleja and Wuse as specified in the agreement dated 22nd June, 2001.

V. An order of mandatory injunction directing the 4th defendant, its servants, agents, and privies to vacate and deliver up to the plaintiff the management and control of the control posts at Jebba, Mokwa, Suleja and Wuse as contained in the agreement and to render account to the plaintiff for its unlawful management of the control posts from 2nd May, 2002 until surrender of control and management of the post to plaintiff.

VI. An order restoring the 1st defendant and the plaintiff to the status quo before 30th April, 2002 enabling the plaintiff to continue to discharge its obligations under the contract until the contract is determined by effluxion of time in January, 2005.

VII. An order of specific enforcement of the contract between the 1st defendant and the plaintiff as contained in the agreement dated 22nd June, 2001.

VIII. A declaration that the plaintiff is entitled to the discharge of its obligations under the agreement until same is validly determined by effluxion of time and/or in accordance with the terms of the agreement.

IX. A declaration that the purported award of a new contract to the 4th defendant or to any other person by whatever name called or known for the management and control of the livestock and produce control posts at Mokwa, Suleja, Jebba, and Wuse in the circumstance of the case is arbitrary, oppressive, unlawful, wrongful, illegal and an exercise in executive recklessness and anti democratic. ”

The 1st respondent, The Niger State Government in an agreement dated 22nd June, 2001, appointed the appellant Nigergate Ltd., a limited liability company to among other responsibilities, collect taxes and levies on livestock’s grains and other goods passing through the state at various control posts. The appellant was required under the agreement to remit the sum of N6,000,000.00 monthly to the respondents subject to periodic review.

The 1st respondent by a letter dated 20th February, 2002 reviewed the amount to be remitted by the appellant under the agreement from the sum of N6,000,000.00 to N10,000,000.00 with effect April, 2002.

The appellant in its letter of 4th March, 2002, protested the review and argued that it was in breach of the agreement as it was done without negotiations, and went on to state several reasons why the new rate could not be remitted by them. Upon receipt of the letter from the appellants, the 2nd respondent responded by terminating the contract agreement vide a letter dated 12th April, 2002. This letter did not state any reason for the termination aside from reference to appellant’s letter of 4th March, 2002.

The appellant as plaintiff before the trial court challenged the termination of the agreement and argued at the lower court that the termination was unlawful and void because:

(a) The respondents breached a term of the agreement when they reviewed the amount to be remitted by the appellants without first negotiating the review with the appellants as stipulated in the agreement.

(b) The termination was wrongfully done by the respondents because the matter was not first referred for arbitration as required by the agreement and finally.

(c) The agreement was terminated without the respondents giving the appellant the requisite 6 months notice and before the expiration of the contract period, contrary to the agreement of the parties.

The respondents as defendants in their defence stated that:

(i) the contract was illegal and unenforceable as it was made or entered into in contravention of section 85(b)(4) of the Finance Miscellaneous Taxation Decree No. 18 of 1998 as amended, which precludes the Niger State Board of Internal Revenue from delegating its powers to collect taxes to the appellant or any other person; the appellant performed the contract in an illegal manner as it mounted road blocks in order to collect taxes and levies “approved list for collection” Decree No. 21 of 1998; and

(iii) the respondents were entitled to repudiate the contract agreement because the appellant breached a fundamental term of the agreement when it refused to remit the reviewed sum of N10,000.00 as demanded by the respondents.

The trial court after due consideration of what was before it in a considered judgment delivered on the 8/8/2002 struck out the name of the 4th defendant, and dismissed the plaintiffs claim against the 1st, 2nd and 3rd defendants.

The plaintiff/appellant being dissatisfied has now appealed to this court on these grounds of appeal.

Ground 1

The court below erred in law when it found that the plaintiff had committed a criminal offence by contravening S. 2(2) of the Taxes and Levies Approved List for Collection Decree 21 of 1998.

Particulars of error

(i) Decree 21 of 1998, S. 3 provides as follows: A person who-

(a) collects or levies any tax levy or

(b) mounts a road block or cause a road block to be mounted for the purpose of collecting any tax or levy in contravention of S. 2 of this Decree is guilty of an offence and liable on conviction to a fine of N50,000.00 or imprisonment for 3 years or to both such fine and imprisonment.

(ii) S. 36(5) of the Constitution of the Federal Republic of Nigeria provides … “every person who is charged with a criminal offence shall be presumed to be innocent until proven guilty”.

(iii) S. 36(1) of the Evidence Act provides that where the commission of a crime by a party to any proceedings is directly in issue in any proceedings civil or criminal, it must be proved beyond reasonable doubt. Ayedun Jules v. Raimi Ajani (1980) 5-7 SC 96, (1980) ANLR 171.

(iv) The defendants failed to discharge the burden of proof but merely averred in their counter-affidavit that the plaintiff put roadblocks in the process of collecting the taxes at the control posts.

Ground 2

The judgment of the court is against the weight of evidence.

Particulars

(1) The learned trial Judge failed to ascribe any probative value to exhibits “AA “, “BW” & “FF’ attached to the plaintiff’s Oliginating summons.

(2) Exhibit “AA” and exhibit “BB” clearly showed that the plaintiff was mandated by the 1st defendant to assume management and control of the control posts already in existence for the purpose of collecting taxes and levies.

(3) Outside the bare averment contained in the counter-affidavit of the 1st defendant to the effect that the plaintiff mounted roadblocks in the process of collecting the taxes, no other evidence was placed before the court to justify the conclusion reached by the court that the contract though legal was performed in an illegal manner.

Ground 3

The learned trial Judge erred in law when she failed to grant the plaintiff a fair hearing as contemplated by S.36 of Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 and thereby occasioned a miscarriage of justice.

Particulars of error

(I) The plaintiff was never called upon to address the court on whether or not it contravened the law before the court went on to pronounce that it executed the contract in an illegal manner.

(II) The judgment of the court being based upon the alleged commission of a crime, the court was duty bound to afford the plaintiff adequate opportunity within which to put up representation (on the specific allegation that it mounted road blocks) in line with S. 36(4) of the Constitution of the Federal Republic of Nigeria, 1999.

Ground 4

The learned trial Judge erred in law when she held thus…

“This leaves no doubt therefore that the plaintiff having breached the law in the method of performing its obligation of collecting taxes on the various control posts by mounting road blocks is debarred from enforcing the contract agreement as it has been rendered void by the method of its performance … I fail to find any denial of the defendants’ claims as to how the plaintiff was collecting taxes by mounting road blocks at control posts …”

Particulars of error

(I) Mere averments in an affidavit cannot constitute evidence as he who asserts must prove.

(II) The 1st defendant did not prove and establish beyond reasonable doubt its allegation of the commission of an offence by the plaintiff.

(III) The Honourable Court ought to have resolve any doubt created by the averments in the affidavit of the 1st defendant in favour of the plaintiff.

Ground 5

The learned trial Judge erred in law when she held thus… “it is … law that when the defendant learns of the illegal mode of performance he must not participate in it but should do all reasonable acts within his power to avoid or prevent such performance … ” (sic)

(I) Paragraph 11 of the 1st defendant’s counteraffidavit to the originating summons reads thus …

“That the control posts aside from its use for collection taxes by the plaintiff is also used by the agents/officials of the 1st defendant to carry out other duties enjoined by law”. This clearly shows that the agents of the 1st defendant and the plaintiff jointly managed the control posts for the business of collecting taxes and levies.

(II) The alleged mode of performance was not the basis on which plaintiff’s contract was purportedly terminated. The basis of the purported termination of the contract was the plaintiffs alleged refusal to accede to the 1st defendant’s unilateral increase of the plaintiffs monthly remittance from N6,000,000.00 to N10,000,000.00 contrary to exhibit ‘BB”.

(III) The duty of collection of taxes and levies as contained under the contract document exhibit “BB” was jointly performed by the agents of the 1st defendant and the plaintiff.

Ground 6

The learned trial Judge erred in law making contradictory findings that the plaintiff mounted road blocks at already existing control posts, established by the 1st defendant.

Particulars of error

(I) The credible evidence before the court (exhibit “AA”, exhibit “BB”, exhibit “FF) showed that the 1st defendant had created control posts for the purpose of collecting taxes and levies before the award of the contract to the plaintiff for the management of the various control posts.

(II) There being already existing control posts it was necessary for the plaintiff to establish or mount road blocks at the control posts.

(III) The existence of the control posts established by the 1st defendant afforded the plaintiff the means by which to discharge its obligations under the contract.

Ground 7

The court below erred in law when relying on S. 2(2) of the “Taxes and Levies” Approved List for Collection Decree 21 of 1998 it justified the termination of the plaintiff’s contract and thereby occasioned a miscarriage of justice.

Particulars of error

(i) Plaintiff’s contract was purportedly terminated on the basis that plaintiff refused to accede to the unilateral increase on monthly remittance from N6,000,000.00 to N10,000,000.00.

As required by rules of this court parties filed and exchanged their briefs of argument, which they adopted and relied on, on the day this appeal was heard.

The respondent had filed a notice of preliminary objection on the 11/2/04 and argued same at pages 7-9 of this brief. On the day this appeal was heard, Olanipekun learned counsel for the respondent however applied to withdraw same and all argument based on it. The preliminary objection having been withdrawn is accordingly struck out.

The appellant in his brief identified three issues, which were also adopted and argued by the respondent. The appeal will therefore be resolved on the determination of these issues which are produced hereunder:

(1) Whether the respondent was able to prove beyond reasonable doubt that the appellant committed a criminal offence by mounting road blocks in the process of collecting taxes and levies at the control posts.

(2) Whether the appellant was, having regard to the circumstances of the case and the evidence before the court granted a fair hearing.

(3) Whether there was sufficient material evidence before the trial court to have justified its having reached a decision that the appellant breached the contract in the method of performance and was therefore debarred from enforcing the contract.

Issue 1

Whether the respondent was able to prove beyond reasonable doubt that the appellant committed a criminal offence by mounting road blocks in the process of collecting taxes and levies at the control posts.

This issue is hinged on grounds 1,2,3 of the grounds of appeal and on the finding of the trial court at pg 140 produced hereunder;

“This leaves no doubt therefore that the plaintiff having breached the law in the method of performing its obligations of collecting taxes at the various control posts by mounting road blocks, it is debarred from enforcing the contract agreement as it has been rendered void by the method of performance.”

The appellant contends on that, that it is not enough for the 1st respondent to have merely averted in its affidavit in answer to the originating summons that the appellant put up road blocks and contravened Decree 21, 1998, it should have gone further to establish this fact by proof beyond reasonable doubt through credible evidence before the court, it being a criminal allegation putting reliance on S.138(1) Evidence Act, 1990; Aiyedoun Jules v. Raimi Ajani (1980) All NLR 171; Psychiatric Hospitals Management Board v. Edosa (2001) 5 NWLR (Pt. 707) 612.

Pointing out that at no time in the course of the trial was the plaintiff called upon to put up a defence to the criminal allegation of mounting road blocks contrary to S. 3 of Decree No. 21 of 1998. In the circumstances the trial court should have presumed the plaintiff innocent and called upon the defendant to establish the plaintiff’s guilt beyond reasonable doubt. That having not done so, it was wrong for the trial court to make a finding that the appellant mounted road blocks.

The respondent submits on this issue that the allegation that the appellant mounted road blocks in the process of collecting taxes contrary to sections 2(2) and 3 of the Taxes and Levies (Approved

List for Collection) Decree No. 21 of 1998 has been proved beyond reasonable doubt. Contending that by paragraph 15 of their affidavit in reply to the affidavit in support of the originating summons they had averred that the appel1ant mounted roadblocks in the control posts under its control. That this assertion was never denied or challenged by the appellant in any of the subsequent affidavit it filed nor in the oral submissions made by appellant counsel before the trial court submitting further that paragraphs of an affidavit not specifically denied are deemed admitted, and the facts deposed to would be deemed unchallenged and undisputed putting reliance on these cases:

Otuokere Nwagboso & Ors. v. Ekwem Ejiogu (1997) 10 NWLR (Pt.527) 173; CBCLN Limited v. Unibiz Nigeria Ltd. (2000) 9 NWLR (Pt. 673) 491; United Bank of Kuwait Plc. v. Chief B. O. Rhodes (2000) 2 NWLR (Pt. 645) 457.

That failure by the appellant to deny, challenge or controvert the assertion of mounting road blocks amount to an admission, the respondent therefore need not call further evidence in proof of that assertion as provided in S. 75 Evidence Act, and submitting that the position is not different even if the fact admitted relates to crime and the issue of crime is raised in a civil proceeding. For ease of reference, I will produce hereunder paragraphs 2b, 2f and 2h of the affidavit in support of the originating summons and paragraphs 11 and 15 of the affidavit in reply as filed by the defendants/ respondents;

Paragraph 2b

“That by an agreement between the 1st defendant and the plaintiff dated 22nd June, 2001, the terms and conditions of the plaintiff’s appointment (in paragraph a above) was specified and the plaintiff charged with wide ranging responsibilities namely Management and Control of Control Posts including but not limited to Jebbah, Mokwa, Suleja and Wuse for the purpose of collecting tax in respect of all livestock, grains produce and other goods passing through the state, the said agreement is herewith annexed and marked exhibit “BB”.

Paragraph 2f

“That prior to the execution of the agreement, the plaintiff on the 1st day of February, 2001, assumed the management and control of the various control posts aforesaid and mobilized to the various posts and recruited staff and retained skilled and trained personnel numbering over 150 (one hundred and fifty) and incurred expenses on equipment and personnel.”

Paragraph 2h

“That the plaintiff discharged its responsibilities under the contract namely, managing and super-intending the control posts diligently and in accordance with the terms of the agreement.

Paragraph 11 (defendants’ affidavit)

“That the control posts aside from its use for collection of taxes by the plaintiff it is also used by the agents/officials of the 1st defendant to carry out other duties enjoined by law.”

Paragraph 15

“That the plaintiff in the purported discharge of its obligation to collect taxes under the agreement mounted road blocks in all the aforesaid control posts under its control”

The defendant contended in his address before the lower court that the mounting of the road blocks by the plaintiff in the various control posts in discharging its obligation under the agreement was unlawful thus rendering the performance of the contract by the plaintiff’s illegal.

This contention was upheld by the trial court. The Law, Taxes and Levies (Approved List for Collection) Decree 21 of 1998 said to have been contravened is produced hereunder :-

“(2) No person, including a tax authority, shall mount a roadblock in any part of the Federation for the purpose of collecting any tax or levy.

(3) A person who:

(a) collects or levies any tax or levy; or

(b) mounts a road block or causes a road block to be mounted for the purpose of collecting any tax or levy.

In contravention of section 2 of the Decree, is guilty of an offence and liable on conviction to a fine of N50,000 or imprisonment for 3 years or to both such fine and imprisonment.”

Usually parties are bound by their pleadings and where an averment is made on a fact and it is not traversed by the other party, that fact will be deemed to be admitted and thus unchallenged, for the fact which are not denied will be deemed to have been admitted. The onus to prove such fact is therefore discharged – Nzeribe v. Dare Engineering Ltd. (1994) 8 NWLR (Pt. 361) 124; Omoregbe v. Lawani (1980) 3-4 SC 108.

In the instant case the fact averred in paragraph 15 of the defendants reply affidavit was that the plaintiff in the enforcement of the contract agreement mounted road blocks. This averment was never traversed in any of the further affidavits filed by the plaintiff. By the rules of pleading this averment would have been deemed as admitted and unchallenged by the plaintiff.

The mounting of roadblocks is a criminal offence, an allegation of the commission of an offence has been leveled against the plaintiff. Civil cases are decided on the preponderance of evidence or on the balance of probabilities. However by virtue of the provisions of section 138(1) of the Evidence Act, 1990, if the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.

This court and indeed the Supreme Court had said a number of times that an allegation of a criminal offence or the commission of a criminal offence in a civil suit must be specially pleaded and proved beyond reasonable doubt in accordance with S. 138(1) of the Evidence Act. See Ikoku v. Oli (1962) 1 SCNLR 307; Aiyedun v. Ajani (1980) 5-7 SC 96; Edun v. Provost Lagos State College of Education (1998) 13 NWLR (Pt. 580) 52.

In as much as this is an action commenced by originating summons, where the issue of evaluation of evidence seldom arises, the court should have called for oral evidence to determine the allegation of the commission of the crime.

In the agreement between the parties annexed to the originating summons as exhibit “BB” no reference was made to mounting of road blocks, the agreement only called for the “management and monitoring of control posts in the state for the purpose of collecting tax in respect of all livestocks and grains produce.”

The respondent/defendant raised the issue of illegality of the agreement mid-day, the court should have then gone into trial to determine whether or not road blocks were mounted at the control posts for the collection of taxes and levies rather than to have determined the matter arbitrarily. The assertion was made by the defendant he should therefore have been called to prove it in accordance with ss.14 & 138(1) of the Evidence Act, 1990 see also Aiyedun Jules v. Raimi Ajani (1980) 5-7 SC 96, (1980) All NLR 171; Psychiatric Hospitals Management Board v. Edosa (2001) 5 NWLR (Pt. 707) 612, there being no such proof the trial court was wrong to have found that the appellant/plaintiff mounted road blocks at the control posts.

On issue two, it is without doubt that every person who is charged with a criminal offence is presumed innocent until proven guilty. This is a fundamental right as contained in S. 36(5) of the 1999 Constitution.

As I had earlier pointed out where an allegation of the commission of a crime is made in a civil case, the burden of proving the commission of the crime is on the person asserting, in the instant case, the respondent.

This assertion was made in paragraph 15 of his affidavit, he was not called by the trial court to prove it, neither was the plaintiff called upon to defend it rather the court at pages 140-141 of the printed records found as follows:

“I have critically gone through exhibit ‘BB’ the contract agreement, the affidavit in support of the originating summons I have failed to find any denial of the defendant’s claim as to how the plaintiff was collecting taxes by mounting road blocks at the control posts. In other words, there is no evidence that has gone to challenge or discredit this deposition as contained in paragraph 15 of the defendants’ affidavit in answer to the originating summons. Or is there any evidence or deposition that the defendants assisted or participated with the plaintiff in the illegal performance. It is law that unchallenged and uncontroverted evidence must be taken as the truth and acted upon by the court…”

Here the defendant has become the claimant on a deposition and the plaintiff had been tried, found guilty and convicted by the court by keeping silent, a clear infringement of the provisions of S. 36(1) of the 1999 Constitution which guarantees the right of fair hearing to every individual before a court.

The respondent had contended that they had discharged the onus of proving the commission of the offence, by affidavit evidence which is allowed in law. That the allegation is deemed as proved when the appellant failed to deny it or join issue with the respondent on it. Submitting that the onus of proof then shifts to the appellant to prove otherwise by virtue of S.139 of the Evidence Act.

This is a misconceived submission, with all due respect to the learned counsel, in a criminal matter, the burden of proof of a fact, which if proved would lead to the conviction of the person against whom the offence is alleged is on the person who alleges to prove such fact beyond reasonable doubt. The burden of proving such a fact only shifts when it has been discharged and the other person is then called upon to adduce other evidence in rebuttal. – See Igbo v. The State (1975) 9-11 SC 129; Alonge v. IGP (1959) SCNLR 516, (1959) 4 FSC 203; Fatoyinbo v. A.-G., (WN.) (1966) 1 SCNLR 101, (1966) WNLR 4.

The appellant was therefore not given a chance by the trial court to defend the allegation of the commission of the offence as deposed to in the reply affidavit of the defendant.

On issue 3, it was the submission of the appellant that the learned trial Judge ought to have presumed that since the control posts were also used by agents of the respondents to carry out other lawful duties no illegal activity could have been taking place there and relied on exhibit EE an annexure to the originating summons which showed that the control posts were even manned by law enforcement agents such as the police.

Submitting further that the appellant did not need to mount any road blocks as they were in existence at the designated areas and it was never disputed by way of argument or affidavit evidence that the posts were handed over to the appellant by the respondent.

The respondent on the other hand submitted that there was sufficient material evidence before the trial court to justify its decision that the appellant performed the contract in an illegal manner thereby rendering the contract unenforceable, and urged us to affirm the decision of the trial court.

I have earlier in this judgment reproduced paragraph 15 of the respondents reply affidavit where he averred that the appellant mounted road blocks at the control posts to collect taxes and levies. I have also shown that mounting of road blocks is a criminal offence raised in a civil suit which needs to be proved beyond reasonable doubt which the respondent had failed to prove.

The issue that was raised before the lower court was not the illegality of the contract or agreement between the parties, the issue was rather the enforcement of an agreement partly performed which had been breached. Some of the terms of the agreement are provided hereunder:

“1.11 Pursuant to the terms and conditions herein contained, the state is desirous of contracting out the management and monitoring of all control posts in the State, which include but not limited to Jebba, Mokwa, Suleja and Wuse for the purpose of collecting tax in respect of all livestocks, grains produce and other stated goods passing through the state, to the company.

1.12. The State hereby contracts to and appoint the company as its (States) sole consultants and managers for the monitoring and collection of taxes on livestock, grains produce and other goods throughout the state.

1.13 This agreement shall be for a term of five (5) years commencing from the 1st February, 2001 and terminating on 31st day of January, 2005. During the said term, a monthly remittance of N6,000,000.00 (six million Naira) should be paid to the State by the company.

1.14. This agreement shall be renewable for a further term of five (5) years, immediately upon the expiration of the term hereby granted.

3(a) That the company paying the monthly remittance hereby reserved and performing and observing the covenants herein contained and on the part of the company to be performed and observed shall peacefully hold and enjoy all the control posts during the term hereby granted without any interruption or disturbance from or by the State or any other person rightfully claiming through or in trust for the state.

(b) That the State shall not increase the monthly remittance fees during the term granted without prior negotiations and discussion with the company.

4(b) That if any of the terms of the contract on the part of the company shall not be performed or observed then it shall be lawful for the state or any person duly authorized by it, after giving six months notice to the company to take possession in the name of the State to the control posts absolutely but without prejudice to any right of action or remedy of the covenants herein contained.

(c) That either party may terminate this agreement by giving (6) six months notice.”

From the above, a binding contract for a period of five years had been entered into between the parties as at 1st February, 2001 and terminating on 31st January, 2005. The company is to remit to the State N6,000,000.00 monthly during the term of the agreement and the state shall not increase the monthly remittance during the period without prior negotiations and discussions with the company.

The agreement may be terminated by either party by giving six months notice.

The respondent arbitrarily without prior negotiations or discussion with the appellant increased the monthly remittance from N6,000,000.00 to N10,000,000.00 in February, 2002 to take effect from April 2002, and terminated the agreement on 12th April, 2002 effective from midnight 30th April, 2002 informing the appellant that a new consultant had been engaged. Without giving the six months notice called for by the agreement.

Here both parties have elected to regulate their legal position by the terms of the agreement as in exhibit BB, none of them can thereafter withdraw from same without following the terms as agreed and signed by them midway, particularly as the respondent had benefited tremendously from the total remittance of N72,000,000.00 religiously remitted monthly to him by the appellant.

See Koiki v. Magnusson (1999) 8 NWLR (Pt. 615) 492, (1995) SCNJ 296 at 321 & where Gnu, JSC said –

The general rule is that where parties have embodied the terms of their agreement in a written document such as exhibit “Px. 29″ extrinsic evidence is not admitted to add, vary or subtract from or contradict the terms of the written instrument. See Olaoye v. Balogun (1990) 5 NWLR (Pt. 333) 385. Indeed where the parties enter into a contract they are bound by the terms thereof and it is unfair to read into such a contract terms on which there is no agreement.See Baba v. Nigerian Civil Aviation Training Centre (1991) 5 NWLR (Pt. 192) 388; See also UBN Ltd. v. Umeh & Sons Ltd. (1996) 1 NWLR (Pt. 426) 565 and SCOA v. Bourdex Ltd. (1990) 3 NWLR (Pt. 138) 380 at 389”.

Having not adduced evidence in proof of the allegation of the commission of the offence the trial court was thus wrong to have concluded that an offence had been committed which rendered the contract illegal.

To my mind the finding of the trial court at pages 139-140 of the records was perverse for reasons enumerated above.

The findings reads:

“On the face value, the termination of the contract agreement by the 1st defendant was a clear contravention of these condition and terms of contract which could entitle it to an order of specific performance in form of the relief being sought. However it has been deposed to in paragraph 15 of the defendants affidavit in answer to the originating summons thus…

Learned State DPP has contended that the mounting of road blocks by the plaintiff in the various control posts in order to discharge its obligation was unlawful as it contravenes S. 2 of the Taxes and Levies (Approved List for Collection) Decree 21, 1998 and that the performance of the contract by the plaintiff was therefore illegal …

This leaves no doubt therefore that the plaintiff having breached the law in the method of performing its obligation of collecting taxes at the various control posts by mounting road blocks it is debarred from enforcing the contract agreement as it has been rendered void by |the method of performance …”

This issue is also resolved in favour of the appellant. This appeal on the whole succeeds and is hereby allowed.

Usually an appellate court does not interfere with the findings of fact made by a trial court not having had the advantage of seeing and watching the demeanor of witnesses. For where the trial court had properly evaluated the evidence before him it is not for the appellate court to revaluate the same evidence and come to a different conclusion. See A. M. Akinloye v. Eyiyola & Ors. (1968) NMLR 92; Ebba v. Ogodo (1984) 1 SCNLR 372.

However this case was determined at the trial court on affidavit evidence so this court has the same advantage and can rightly interfere the trial court having arrived at its decision in a perverse manner and the decision is not right in law. See Adegoke v. Adibi (1992) 5 NWLR CPt.242) 410; Mba v. Agu (1999) 9 SCNJ 84; (1999) 12 NWLR (Pt.629) 1.

For the said reasons I hereby set aside the judgment of the Minna High Court, Coram Bwari entered on 8/8/2002 and exercise our powers under S. 16 of the Court of Appeal Act, Cap. 75, Laws of the Federation, 1990 and enter judgment for the plaintiff/appellant in the following terms:

1. It is hereby declared that the purported termination of the contract between the 1st defendant/1st respondent and the plaintiff/appellant is ultra vires the agreement dated 22nd June, 2001 and therefore arbitrary, oppressive, illegal and void and of no effect.
2. It is hereby declared that the contract between the 1st defendant/1st respondent and the plaintiff/appellant dated 22nd June, 2001 is valid and subsisting and can only be discharged by effluxion of time and or in accordance with the terms of the agreement.
3. An order of mandatory injunction is hereby made compelling the 1st defendant/1st respondent, its agents, servants and privies to abide by the contract in accordance with the terms of the agreement dated 22nd June, 2001
4. An order of mandatory injunction is hereby made compelling the 1st and 2nd defendants/respondents their servants, agents and privies to vacate and deliver up to the plaintiff the management and control of the control posts at Jebba, Mokwa, Suleja and Wuse as contained in the agreement and to render account to the plaintiff! appellant for its unlawful management of the control posts from 2nd May, 2002 until the surrender of the control and management of the posts to the plaintiff/appellant.
5. It is hereby ordered that the 1st defendant! 1st respondent are restored to the status quo before 30th April, 2000, and the plaintiff/appellant be enabled to continue to discharge its obligations under the contract until the contract is determined by effluxion of time in January, 2005.
6. It is hereby ordered that the terms of the agreement of 22nd June 2002 between the 1st respondent/1st defendant and the plaintiff/appellant be specifically enforced.
7. It is hereby declared that the plaintiff/appellant is entitled to the discharge of its obligations under the agreement until same is validly determined by effluxion of time and/or, in accordance with the terms of the agreement.
8. It is hereby declared that the purported award of the contract to any other company or to any other person by whatever name called or known for the management and control of the livestock and produce control posts at Mokwa, Suleja, Jebba and Wuse in the circumstances of the case is arbitrary, unlawful, wrongful and illegal.

Costs of N10,000.00 is awarded to the appellant.

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Other Citations: (2004)LCN/1607(CA)