Set Success Enterprises & Co Ltd V. Ibeju-lekki Local Government Council & Anor (2021)
LAWGLOBAL HUB Lead Judgment Report
IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.
The present appeal is a natural reaction by the Appellant against the judgment of the Court of Appeal, Lagos Judicial Division, delivered on June 12, 2008 in appeal no. CA/L/489/2005. By the judgment in question, the Court below, coram Ogunbiyi, JCA (as then was), Mshelia and Nwodo, JJCA, dismissed the Appellant’s appeal against the Judgment of the trial High Court delivered on May 19, 2005 (LD/1037/2002), which dismissed in part the Appellant’s claim against the Respondent for outstanding balance of contract sum and damages for breach of contract.
BACKGROUND FACTS
The Appellant is a limited liability company having the registered office thereof at 20/22 Adedoyin Street, Ketu, Lagos Slate. On the other hand, the Respondent is a Local Government Council having its Administrative Secretariat al Akodo, Lagos State.
The genesis of the case leading the to instant appeal is traceable to May 27, 2002. Indeed, that was the day the Appellant instituted the case in the trial High Court, thereby seeking against the Respondent the total sum of N26.5 Million being special and general damages for a stabilization contract awarded to the Appellant In the Respondent.
By the statement of claim, filed along with the writ of summons thereof on the date in question, the Appellant claimed against the Respondent:
- Particulars of special damages.
a. The sum of N20,007076.60 being the balance of the contract sum of N35,007076.60k due to the plaintiff in respect of the stabilization of a 16.5 kilometers laterite road from Ajegbenwa to Dongo in Ibeju-Lekki Local Government Area of Lagos State; and
b. The sum of N1,500,000.00 being retention fee.
- General Damages:
The sum of N5,000,000.00 being general loss suffered by plaintiff as a result of the unquantified damages suffered by the failure of the Defendant to pay the whole contract sum as and when due.
- Interest on the special damages at the rate of 36% per annum till the date of judgment and thereafter at the rate of 6% per annum until the judgment debt and necessary costs is fully paid by the Defendant.
The Respondent reacted by filing a statement of defence to the claim, to which the Appellant filed a reply. Pleadings having been filed and exchanged between the respective parties, the suit proceeded to trial. In the course of which, the Appellant called two witnesses and tendered thirteen (13) documentary evidence, which were admitted as exhibits by the trial Court.
Contrariwise, the Respondent called one witness who testified in chief but failed to show up for cross-examination by the Appellant’s counsel.
At the close of evidence, the trial Court deemed it expedient to order for written addresses. Consequent whereupon, the Appellant filed its written address. However, the Respondent, for reason best known thereto, failed to file any written address as ordered by the trial Court.
The trial Court, not unexpectedly, proceeded to deliver the judgment on the said 19/05/2005, to the conclusive effect:
I am satisfied on the evidence before me that the claimant has been able to prove on the balance of probabilities, his entitlement to N6 Million being the balance of the 60% first instalment as per Exhibit P 10. The law is trite that the Court can award less but not more than what is claimed if that is what is proved by the evidence
OWENA BANK PLC V. OLATUNJI (2002) 13 NWLR (PT. 781) 259 AT 349 citing EKPE V. FAGBEMI (1978)1 LRN 137 at 140. I cannot also on the basis of the evidence before me hold that the claimant is entitled to General damages as claimed as there appears to be outstanding issues between the parties in respect of the work done on the project. The 1st defendant does not even consider the project has been completed.
The claimant in this case has sued both the 1st Defendant and its chairman as the 2nd Defendant. The contract agreement here was between the claimant and the 1st Defendant only. I do not see why the 2nd Defendant had to be joined in this suit. He is not a proper party to this suit and I so hold.
For this reasons given in the body of this Judgment therefore, judgment is hereby awarded in favour of the claimant against the 1st Defendant only in the sum with interest at the rate of 10%per annum from today 19th May, 2005 until the Judgment debt is fully paid. The claims for general damages are hereby dismissed. This is the judgment off his Court.
N20,000 costs to the claimant.
Not unnaturally, the Appellant, being dissatisfied with the judgment of the trial Court aforementioned, appealed to the Court below.
As alluded to above, the Court below dutifully heard the appeal and delivered the vexed judgment on the said June 12, 2008, to the conclusive effect:
On the totality of the appeal before us, the issues are hereby resolved against the appellant and in favour of the respondent. The appeal in the circumstance is devoid of merit and accordingly dismissed. The judgment of the learned trial Judge of the High Court of Lagos State delivered on 19th day of May, 2005 is hereby affirmed. With costs following events, I would award the sum of N30,000 in favour of the respondents.
Appeal dismissed with N30,000.
On 21/09/21, when the appeal at long last came up before us for hearing, the learned counsel had the opportunity of addressing the Court and adopting their respective briefs of argument prior to reserving Judgment to today.
DETERMINATION OF THE RESPONDENT’S
PRELIMINARY OBJECTION
It’s trite, that the Respondent has had the liberty of raising in the brief thereof (pages 2-12 of the Respondent’s Amended Brief of Argument) a preliminary objection, thereby vehemently challenging the competence of the Appellant’s notice of appeal, to the effect that:
The three grounds of appeal contained in the notice of Appeal dated 11th of September, 2008 and the issues/arguments formulated thereon be struck out for being incompetent having not complied with Order 8 Rule 2 (3) (4) of the Supreme Court Rules and/or bad for falsity.
Each of the three grounds of the notice of appeal has been copiously reproduced along with their particulars at pages 4-7 of the Respondent’s brief, viz:
Ground 1 Error in Law
The learned Justices of Court of Appeal erred in law in their interpretation of clauses 4, 5.2, 5.3 and 12 of the Contract Agreement between the parties (Exhibit P5), and thereby arrived at the erroneous conclusion the there was no certification of completion of contract works and that the Appellant was not entitled to full payment of contract sum, notwithstanding the documentary evidence on the contrary.
Particulars of Error
(i) The contract agreement executed by the parties tendered as Exhibit P5 was very clear, plain and unambiguous in its provisions as to the mode and stages of payment, inspection and certification, and the issuance of payment/completion certificate, which provisions are binding on the parties, and effect ought to have been given accordingly to them by the Court below.
(ii) The Court below was wrong in relying on its own observation from examination of the documents to decide matters which did not the actual evidence on record.
(iii) It vas in evidence that the Appellant had performed and complied with all the duties crated on its part by the contract agreement, and there was no complaint whatsoever by the Respondents of any defect or dissatisfaction within the six-month window for release of final payment, being the third stage of payment, namely payment of the retention fee.
(iv) Pursuant to Clause 5.2 of the Contract Agreement, the Respondent’ designated agent and representative, the Local Government Engineer, had duly inspected the works, and issued a payment certificate, certifying satisfactory execution of the works, and thereby entitling the Appellant to payment of the second stage payment of 30% of the contract sum as provided for in Clause 4 of the Contract Agreement.
(v) Pursuant to Clause 12 of the Contract Agreement, the Local Government Engineer (as the duly designated agent and on behalf of the Respondents) had upon inspection and due satisfaction, issued a completion certificate to the Appellant, tendered as Exhibit P8 entitling the Appellant to payment of the final payment envisaged in clause of the contract agreement, being the third stage payment provided for by Clause 4 of the said contract agreement.
(vi) The certificate by the Local Government Engineer, being a document of the Respondents, (Exhibit P8) was very clear in its certificate of “value of works to date being the entire contract works.
(vii) The certificate (Exhibit P8) was unequivocal in stating that the amount due for payment to the Appellant was the sum of N18,006,369.00 which is the balance, less the retention fee.
(viii) The lower Court was therefore in error in failing to hold that Exhibit P8 was the payment certificate issued by the Respondents or their representative, but rather placed reliance on a letter dated 8th March 2002 (Exhibit P10) written outside the six months retention and warranty period provided by Clause 4 of the contract agreement.
(ix) There was no evidence of any complaint made by the Respondents in respect of the work executed by the Appellant within the six months window for observation of defects and for retention fee.
(x) Extrinsic evidence such as Exhibit P10 ought not be used to vary the contents of a written contract validly entered into by the parties.
(xi) The interpretation placed Exhibit P5 and P8 by the learned Justice of the Court of Appeal occasioned a miscarriage of justice.
Ground 2: Error in Law
The learned Justices of Court of Appeal erred in law when they held that the Appellant failed to prove its case on balance of probabilities that it had fully executed the contract awarded with the terms of contract with the terms of the contract and thus entitled to full payment under the said contract, having due regard to the unchallenged evidence on record
Particulars of Errors:
(i) The Appellant had testified and tendered 13 documentary Exhibit in support of its case, particularly the contract document (Exhibit P 5) and the Certificate of Completion from the Respondents (Exhibit P8)
(ii) The lower Court was in error in holding that the completion certificate pleaded by the Appellant in paragraph 7 of its Statement of Claim was not tendered as a careful perusal of the pleadings reveals that same was Exhibit P8.
(iii) The Respondents had abandoned their defence at the trial, and had equally failed to file a Respondent’s brief of argument at the Court below despite all opportunities afforded them so to do, as rightly found by the Court below.
(iv) The Appellant’s evidence in the absence of any challenge by the Respondents was substantial and overwhelming, and it was open to the Court to act on such unchallenged and uncontroverted evidence, which was neither inherently incredible nor offended any rational conclusion.
(v) The issuance of Exhibit P8 pursuant to Exhibit P5 by the Respondents is conclusive proof that the Appellant had completely and satisfactorily executed the contract works.
(vi) The duty imposed by Exhibit P5 on the Appellant is to complete the contract satisfactorily to be certified by the Respondents’ designated professional and expert, and having done so, the duty arose on the part of the Respondents to issue the final certificate and release the retention balance to the Appellant.
(vii) The Respondents having issued the completion certificate through their Council Engineer as provided for by the contract agreement are not free to resile therefrom or to disclaim the certificate.
(viii) The issue before the Court was a narrow one, namely whether on the evidence before the Court, the Appellate is entitled to payment in the terms of the contract agreement, having executed the contract, which the Appellant established.
(ix) The Appellant is entitled to succeed on the strength of its own case as established by it, which was on the preponderance of evidence.
Ground 3: Error in Law
The learned justices of Court of Appeal erred in law when they held that the Appellant was not entitled to an award of damages upon the interpretation outcome of the case.
Particulars of error
(i) The Appellant established that there was a breach of contract, even as the learned trial Judge had found that part of the first stage payment was still being owed the Appellant, that is, the sum of N6 million
(ii) The Appellant had also established that there was no mobilisation fee paid, and that it engaged bank facility to execute the project, with the attendant interests, occasioned by the default in payment by the Respondents.
(iii) The funds of the Appellant had been tied down since 2001 as a result of the default of the Respondent.
(iv) The Appellant is clearly entitled to damages and interests.
(v) Notwithstanding that costs follow event, the costs awarded in favour of the Respondents who refused to appear in Court at all and/or failed to file any process in Court, were unreasonable and amounted to rewarding intransigence.
Instructively, an appeal is a challenge against the decision of the trial Court or the Court below, as the case may be. Essentially, an appeal challenges the correctness of the decision being appealed against on three fundamental grounds: (i) on the grounds of law; (ii) mixed law and facts; (iii) or on facts simpliciter.
Thus, to justify the intervention of the appellate Court on any of the grounds of the notice of appeal before it, the appellant has an up-hill task of establishing that the decision of the Court below he seeks to be reversed or set aside was wrongly arrived at, or the opinion expressed therein is not supported by the pleadings and evidence on the record. See GUARDIAN NEWSPAPERS LTD VS. REV. PASTOR C.I. AJEH (2011) LPELR-1343 (SC) @ 27 paragraphs A-C and UOR VS. LOKO (1988) 2 NWLR (pt. 77) 430.
Where a decision of a Court is challenged on the ground that the trial Court failed to properly consider the appellant’s case, the appellate Court in the exercise of its primary judicial responsibility, ought to take into account certain fundamental factors:
(i) The nature of the evidence before the trial Court or the Court below.
(ii) Whether the Court below accepted or rejected any evidence upon the correct perception.
(iii) Whether the Court below used the imaginary scale of justice to weigh the evidence on either side of the divide, and
(iv) Whether the Court below appreciated upon the preponderance of evidence which side the scale weighed having regard to the burden of proof.
This trite fundamental doctrine has been reiterated in a plethora of formidable authorities. See EGONU VS. EGONU (1978) 11-12 SC 111, AGBONIFO VS. AIWEREOBA (1988) 14 NWLR (pt.70) 325, KIM VS. EMEFO (2001) 4 NWLR (pt. 102) 147, SALAWU VS. MAKINDE (2002) LPELR-12318. Jurisprudentially, a ground of (for) appeal denotes a trial Court’s (or of Court below) errors of procedural law that form a basis for asking (praying) an appellate Court to review a case. Equally termed, ground for review. See BLACK’S LAW DICTIONARY, edition, 2019 @ 848.
Invariably, the objective of issues for determination by the Court is primarily to enable the parties streamline the issues in the grounds of appeal, contained in the notice of appeal, thereby ensuring accuracy, brevity and clarity.
A critical albeit dispassionate consideration of ground I, copiously alluded to above, would confirm that it is vague, in the sense that it is actually not clear what the complaint is all about. As aptly argued by the Respondent, at first what the error complained about apparently relates to the interpretation of Clauses 4.5.2,5.3 and 12 of the Contract Agreement. However, it is rather obvious, the ground equally relates to evaluation of documentary evidence on record. Thus, the actual nature of the complaint in ground I is far from being unambiguous. The particulars are rather unhelpful in clearing the ambiguity inherent in ground 1.
Most especially, particulars (i) & (ii) are apparently argumentative, as they seem to complain about interpretation. Particulars (iii) to (x) are virtually argumentative, and narrative in nature, thereby complaining about evaluation of evidence on record.
What’s more, particular (x) is clearly irrelevant and extraneous to the decision of the Court below.
Ground 2 is equally vague, prolix and outrageously unwieldy. One is left in doubt as to whether ground 2 complains of burden of proof, when the evidence on record is unchallenged, or the evaluation of evidence by the Court below. Particulars (i), (ii), (v), (vi), (ix) are narrative and apparently dwell on evaluation of evidence. Particulars (vii) and (viii) are outrageously inconsistent with the ground in question. Particular (iii) is obviously unrelated 10 the ground. Likewise, particular (xiii) is bad for falsity, in the sense that the Court below has clearly decided on the question whether the Appellant was actually entitled to payment based on the contract. Particulars (ii) and (iii) apparently deal with the burden of proof, when evidence is actually unchallenged.
Lastly, but not the least, ground 3, which for all intent and purposes is apparently bad for falsity, as the Court below affirmed the award of damages by the trial Court. Damages were awarded on the N6 million proved in the course of the trial. The ground 3 in question does not appear to have evidently flowed from the vexed judgment of the Court below. The said ground 3 is to say the least, at large!
Most regrettably, issue 1 allegedly distilled from grounds 1 and 2 of the notice of appeal apparently dwells on interpretation. The said issue is extraneous to the grounds, as particulars of errors of interpretation have not been provided in the grounds. See ADAH VS. ADAH (2001) 5 NWLR (pt. 705) 1, ABAYOMI VS. AG ONDO STATE (2006) 8 NWLR (pt. 982) 211, MOMODU VS. MOMOH (1991) 2 SC1, MAGIT VS UNIVERSITY OF AGRICULTURE, MAKURDI (2005) 19 NWLR (pt. 959) 211.
Interestingly, the hallmark of the principles enunciated in the foregoing authorities is to the effect, that an issue for determination must be predicated upon or distilled from a competent ground of appeal. This is indeed so, whether or not the issue is raised by the Appellant or the Respondent. Thus, an issue for determination not distilled or derived from a competent ground of appeal, ought to be struck out along with the incompetent ground in question. The proposition of law is indeed trite, one cannot put something on nothing and expect it to stand. No, it would most assuredly crumble and fall just like the way the cookies crumble. See MACFOY VS. UAC (1961) AC per Lord Denning, MR.
The issue 2, distilled from ground 3 does not at all relate to the decision of the Court below, because the Court only affirmed the position of the trial Court that the Appellant was only entitled to N6 million at the interest rate of 10% per annum. There ought not to have been a complaint about damages that was not awarded.
Hence, against the backdrop of the foregoing postulations, the most inevitable conclusion that could be arrived at in the instant appeal, is to the effect that the Respondent’s preliminary objection is meritorious, thus ought to be granted by me.
CONSEQUENTIAL ORDERS
A preliminary objection as a veritable threshold, is pre-emptive in nature. It fundamentally aims at aborting (terminating) the appeal in limine (prematurely). An appellate Court is required to, first and foremost, determine the preliminary objection in the appeal. It does not matter whether such an objection is frivolous, it should not be disregarded. Thus, where the preliminary objection meritoriously succeeds, the Court has no option other than to grant same, and at that point strike out the appeal for being incompetent. See NWANWATA VS ESUMEI (1998) 8 NWLR (pt. 563) 650, TAMBCO LEATHER WORKS LTD VS. ABBEY (1998) 12 NWLR (pt. 579) 548, FIRST BANK OF NIGERIA PLC VS. TSA INDUSTRIES LTD (2010) 15 NWLR (pt. 1216) 247 SC. Indeed, the rationale of a preliminary objection is that where it succeeds, as in the instant appeal, there would be no need at all to proceed to determine the appeal on the merits; as doing so is tantamount to a futile, wasteful exercise. See NDIGWE VS. NWUDE (1999) 11 NWLR (pt. 626) 314, NEPA VS. ANGO (2001) 15 NWLR (pt. 737) 627.
Hence, having determined that the instant appeal is grossly incompetent, thereby upholding the Respondent’s preliminary objection, the appeal is accordingly hereby struck out by me.
There ought not to be any order in regards to costs.
SC.333/2008