- CL|Evaluation of Evidence
1. ATLANTIC NETWORKS LTD
2. KENNETH AWARA
1. ABAWA NIG, LTD
2. ALH, MOHAMMED KABIR HUSSAIN
MOHEMMED MUSTAPHA. JCA: This is an appeal against the judgment of the High Court of the Federal Capital Territory of the 8th day of March, 2012, Coram Honorable justice S. E. Aladetoyinbo, by a notice of appeal dated the 20th March, 2012, and filed on the 23rd of March 2012 on the following grounds without the particulars:
The judgment is against the weight of evidence adduced at the trial.
The learned trial judge erred in law and submitted his personal opinion for evidence before him when he held as follows:
"The court did not accept the contract was awarded to Ericsson Company as a result of Exhibit P" or through the contract made by the defendants, the court believes that the contract was awarded to Ericsson through effort of the plaintiffs"
The learned trial judge erred in law when he held thus:
"The assertion by the 2nd defendant that the two payments made to 1st plaintiff were made on the bases of quantum merit can only mean that the plaintiffs were paid the value of the percentage of the consultancy services carried out by the plaintiff, this is a lame excuses, there can be no part performance in this type of contract. It is either the contract is awarded to Ericson Company or not, the 2nd defendant is not ready and not willing to honour a simple contract Exhibit E which he freely signed; this is why he was telling bogus story to the court".
The learned trial judge erred in law when he held as follows:
The claim of the plaintiff before this court is the balance of payment due to the plaintiffs under the contract of consultancy services Exhibit "E". the defendants made part-payment; the plaintiffs are entitled to the balance of the amount due under Exhibit "E". The part payment made by the defendants to the plaintiffs is an acknowledgment of the whole debt. The defendant have the obligation to pay the balance".
The learned trial judge erred in law and misdirected himself when he ordered as follows:-
"The defendants are hereby ordered to pay the plaintiffs the sum of N468,409,118.75k (Four Hundred and Eighteen Naira Seventy Five Kobo) only being the balance of payment of the sum owed the plaintiffs as consultancy fee in respect of consultancy services carried out by the plaintiff in favour of the defendants".
The learned trial judge erred in law when he held that:-
"It is undisputed fact that the 2nd defendant collected the sum of N4.8 million from Ericson Company for the consultancy services offered by the plaintiffs, instead of 2nd defendant to pay the plaintiffs, he decided to give them pittance of N 197,210 (pounds) and $173,444.85 and pocket the balance".
The leaned trial judge erred in law when he held that:-
"The defendants' accepted that the 2nd plaintiff has connection with people who are in corridors of power; it was this connection with peoples in corridors of power that plaintiff used to award the contract of MTel GSM Network Expansion to Ericson Company in fulfillment of Exhibit "E".
From these grounds of appeal the following issues were formulated for the appellant:
1. Whether the evidence led before the trial judge was properly evaluated by him before arriving at his judgment (distilled form grounds 1, 4, 6 and 7)
2. Whether it is right in law to hold 2nd appellant liable personally to pay the sum of N468,409,118.75k to the respondents when he was never a party to Exhibit "E" (distilled from grounds 3 and 5).
3. Whether the opinion of the trial judge could take the place of evidence when particularly such opinion has no support in pleadings and evidence adduced before the court (distilled form ground 2).
The following issues were formulated for the respondent:
1. Whether the findings and conclusions of the learned trial judge was perverse having regard to the evidence before the lower court as to warrant interference by this court. (Distilled from grounds 1,2,3,4,6 and 7),
2. Whether from the evidence before the lower court the 2nd Appellant is not a necessary party to the suit (Distilled from ground 5).
The preliminary objection to this appeal was struck out along with the arguments of learned counsel in support of same because it was overtaken by events, having been argued after the appeal had been argued on the on the 7'" of march,2016.
This appeal will be determined on the issues as formulated for the appellants, because they adequately suffice, only with a little modification for the purpose of brevity. The issues are as follows:
1. Whether the trial court properly evaluated the evidence before it.
2. Whether the 2nd appellant is a necessary party as to warrant liability for the payment of sum of N46S, 409,118.75 Kobo.
3. Whether the trial court substituted its opinions with evidence.
Issues one and three will be taken together; it is submitted for the appellant that contrary to the findings of the trial court the contract was not awarded by the plaintiffs to Ericson Nig. Ltd, and the only person in the corridors of power the 2nd defendant referred to in his witness' statement on oath is one CSP Abdulyeri Shuaya Lafia, whom the trial court rejected at page 96 of the record.
That also Alhaji Mohammed Hussein, the plaintiff's main witness did not state anywhere that he is connected to persons in the corridors of power; and so the trial court was perverse in its findings when it held the 2nd defendant collected $4.8 million form Ericson Company, when same was denied by the defendants in paragraph 2 of the statement of defense and witness' statement on oath of DW1.
Learned senior counsel further submitted that the case of the appellants that the respondents breached the terms of Exhibit E, as confirmed by PW1 during cross examination was ignored by the trial court in its evaluation of evidence.
That also the trial court failed to consider the contradiction in the evidence of PWS PI and 2 which discredited their evidence the legal effect of which learned senior counsel contended rendered the evidence unreliable; he referred the court to NWOGA V. BENJAMIN (2009) 5 NWLR part 1133 at 170.
It is further submitted for the appellant that the trial court substituted its own opinion for evidence adduced when it based its rejection of Exhibit P on reasons it gave, which were speculative and led to a wrong conclusion; learned counsel referred the court to ONWE V. STATE 91975) 9-11 SC AT 33 AGHOLOR V. A G OF BENDEL STATE (1990) 6 NWLR part 210 at 435.
It is submitted for the respondents in response that there was a binding contract; and the trial court rightly found that Exhibits C D and E were made by the parties and bind them as such.
That the appellants did call CSP Abdullyari Shuaya as a witness or joined him as a party, and no link was established between him and the respondent yet the appellants contend that the part payment was made as a result of threat by the said Abdullyari Shuaya.
That threat of EFCC and the police were not established by the appellants, and in any event the petition to EFCC was written in October 2009 while the last payment was made in December 2003, clearly showing that payment was made before the alleged threat.
Learned counsel also submitted that there could not have been any breach of contract before the 5th of June 2001, and if the appellant claims any the burden is on him to prove same, he referred the court to NWAVU OKOYE (2008) 18 NWLR part 1118 at 75.
That where a party has entered into a written agreement with another, the one that denies the agreement has the burden to establish his acknowledgment in the agreement; he referred the court to ABJUE V. ADIKPA (1994) 1 NWLR part 322 at 629.
Learned counsel also submitted that there is ample evidence before the trial court to the effect that Ericson ltd paid consultancy fee of $4.8 million to the 2nd appellant contrary to the contention of learned senior counsel to the appellant; he referred the court to paragraph 21 to 25 PW1 statement on oath and contended there is no contradiction between the findings of the lower court and the evidence of PW1 under cross examination.
That consultancy service in the context of this agreement implies rendering professional advice in relation to securing the contract, and the onus of proving a breach of the contract is on the party who asserts the breach, i.e. the appellants; that also the evidence of PW2 and Exhibit O show that Exhibit P was made on the basis of the professional advice of the respondents; and also that though Exhibit P was signed by the appellant it was written on the basis of the advice of the respondents as consultants.
Evaluation of evidence and the ascription of probative value to such evidence are the primary functions of a court of trial which had the opportunity of seeing, hearing and assessing the witnesses and their respective evidence; where after doing that, a that court unquestionably evaluates the evidence and justifiably assesses the facts, the duty of the Court of Appeal is to find out whether there is evidence the basis on record on which the trial court acted. Once that exists, i.e. there is sufficient evidence on record from which the trial court arrived at its findings of fact; the Court of Appeal cannot justifiably interfere.
The findings of facts made by a trial court are highly respected by the court of Appeal, especially when it is clear that the trial court adequately performed its primary duty of evaluating and ascribing probative value to the evidence before it.
In such circumstances, the findings are accorded a lot of respect and approached with extreme caution, notwithstanding the fact that the Court of Appeal could have decided otherwise if it had decided the case itself in the first instance.
The essential consideration is that there is enough evidence on record from which the trial court's finding can be supported. In FABUMIYI VS OBAJI (14) 1968 N.M.LR. AT 247) it was held:
"A Court of Appeal should not easily disturb the findings of fact of a trial Judge who had the singular opportunity of listening to the witnesses and watching their performances. It is settled law, however, that such findings of facts or the inferences from them may be questioned in certain circumstances. See BENMAX VS AUSTIN MOTOR CO. LTD. (1955) A.C. 370); AKINOLA VS FATOYiNBO OLUWO & ORS (1962) ALL N.L.R, 224); LAWAL BRAIMOH FATOYINBO & ORS V5 SELISTU ABIKE WILLIAMS (1 F.5.C. 67." AND ALSO SEE JOE GOLDEN CO. LTD. V. CDB PLC. (2003) FWLR (PT. 153) 376, (2003) 5 NWLR (PT. 814) 586; EZEKWESILI V. AGBAPIONWU (2003) 9 NWLR (PT. 827) 337."
The plaintiffs/respondents at the trial tendered Exhibits C, D and E and had PW1 testify in proof of the existence of the consultancy agreement with the appellants.
The trial court while evaluating the facts before it found at page 245 of the record of appeal that:
"the claim of the plaintiff before this court is the balance of payment due...under the contract of consultancy services exhibit E. The defendants have made part payment, the plaintiffs are entitled to the balance of the amount due under Exhibit E. The part payment made by the defendants to the plaintiffs is an acknowledgment of the whole debt, the defendants have an obligation to pay the balance."
Contrary to the contention of learned senior counsel to the appellants in reply, that the contract was awarded solely because of Exhibit P, and that the respondents have no connection with Exhibit P. The trial court gave reasons for its findings, those reasons and observations are not only well thought out but are the product of proper analysis and evaluation of the evidence before it, as it saw it, for instance it held:
"the court did not accept that the contract was awarded to Erickson Company as a result of Exhibit P .the court believes that the contract was awarded to Ericson Company through the effort of the plaintiffs for the following reasons:
1. If the contract was secured by the defendants themselves through Exhibit P and the contacts made by them, the 2nd defendant has a duty to i write to the 2* plaintiff to return the two cheques...issued as consultancy fee for Exhibit E...failure to demand for the return of the cheques Is an admission that the plaintiffs performed their own obligation in Exhibit E.
2. If the plaintiffs did not perform their own part of contract as claimed by the defendants, the 2nd defendant has a duty to rescind the contract and release the lEt defendant from further obligation under the contract. The fact that the contract was not rescinded by the 2nd defendant is equally an admission that the plaintiffs performed their own part of the contract.
3.Instead of defendants rescinding the contract, the defendants made part payment of #179,210.00 (pounds) to the plaintiffs as consultancy fees under Exhibit E, the defendants having made part payment are estopped from saying that the plaintiffs did not perform their own obligation under Exhibit E, they are equally estopped from saying that the defendant has no obligation to pay the consultancy fees...
4,The story of intimidation and threat to life of the 2nd defendant...is an afterthought...under cross examination of 2nd defendant, he accepted making payments from London...to the account of the 1st plaintiff in Nigeria...such intimidation and threat to life of the 2nd defendant ought to have been reported to the British police...the 2nd defendant is not a reliable witness; he was not intimidated neither was his life threatened before he made the two payments...the same 2nd defendant claimed to have transferred his house in London to CSP Abdullyari Shuaya Lafia who is a stranger to Exhibit E ..such a transfer of ownership of a house under duress is impossible; if it happened the victim has a duty to report to the police...
5.The defendant even acknowledged in his evidence before the court that the payment made to the plaintiffs is quantum merit .
This court is satisfied that these findings were made after a careful appraisal of the facts before the trial court, and they impeccably capture the essence of the conclusions arrived at. The trial court cannot be faulted contrary to the submissions of learned senior counsel to the appellant.
The contention again by (earned senior counsel in reply that the Police and EFCC were used to intimidate the defendants/appellants also falls flat on its face, in view especially of the findings above; and the argument also that the respondents failed to include CSP Abdullyari while suing because of fear of being contradicted makes very little sense, as no one dictates to another who to sue or why; one can only sue if he wants to and be sued if he is a necessary party for the success of the suit.
The trial court rightly also found that there was no breach of Exhibit E, especially in the absence of evidence to suggest so, while on the other hand DW1 admitted neither complaining to the respondents nor repudiating the contract agreement; that being so parties ought to be bound by the terms of their written agreement, see ANYAEBUNAM V. OSAKA (2000) 5 NWLR PART 657 AT 386; and such findings of fact by the trial court cannot be said to be perverse under any circumstance.
It is the considered opinion of this court that these findings were based on evidence properly before the court; that being so an appellate Court will not readily interfere with the evaluation of evidence or findings of facts by the trial Court, unless it is shown that such evaluation or findings were perverse and not supported by the evidence before the trial Court; See ANYANWU & ORS. VS. UZOWUAKA & ORS. (2009) VOL. 177 LRCM PAGE 204.
The record of appeal also does show indeed that the appellants said the respondents have connections with people in the corridors of power, the trial court did not make that up, see DW1's statement on oath at page 92 of the record, which reads thus:
"...the plaintiff and Abdullyari Shuaya Lafia were in corridors of power, they intimidated the 2nd respondent to transfer the ownership of his house situate,. at London. .as further payment .
On the issue of contradiction between PW1's evidence and findings of the lower court as argued for the appellants the trial court arrived at the conclusion that there was payment of $4.8 million dollars to the 2nd appellant by Ericson Ltd, because there existed evidence to that effect, from PW1, at paragraphs 21 to 24 of his statement on oath, and 19 to 22 of the statement of claim as well as Exhibit J.
The records also show the appellants admitted this much in paragraphs 21 to 23 of their statement of defense at page 88 of the record of appeal; now this being so the question of contradiction, or perverse findings by the trial court does not arise, especially as what is admitted requires no proof, see S,P.D.C V. OKENEDO (2007) ALL FWLR 358 at 1140.
This court fails to see the logic or common sense to the submission of learned senior counsel that the respondents claim to Exhibit P is spurious, simply because it was not written on their letter head paper or that they did not sign it; even though the 2nd appellant signed the said document, and not the respondents.
The respondents did appear to have an input to Exhibit P, especially because Exhibit 0 is a draft of Exhibit P, and the nexus between the two is there for all to see.
It is difficult in circumstances such as these for this court to substitute its findings for those of the trial court, which heard and observed the witnesses before it and attached probative value to the evidence before it, e.g. Exhibit 0.
Exhibit O being a draft of Exhibit P establishes a clear link between the respondents and the writing of Exhibit P; if the respondents had no input in the writing of Exhibit P, how did they get to know of the draft, Exhibit O?
On the issue of whether the trial court substituted its opinion with evidence, it is important to bear in mind, as earlier pointed out, that the trial court found that the failure of the appellants to request for the return of the postdated cheques amounted to admission on the part of the appellants, especially when they realized the respondents failed to perform their obligations under the contract and yet did nothing about it; these findings were based on admission by DW1 among other things, that he did not make any complaints to the respondents when he found they failed to perform their obligation, and the refusal or failure of the appellants to repudiate the said contract as well as refusal to demand for the return of the cheques.
Essentially what the trial court did was apply the law on proved facts, and that cannot by any stretch of Imagination be said to amount to substitution of his own opinion with evidence, especially when his conclusions are not drawn outside of the evidence before the court. As Stated in AJ1LEYE VS. FALENYODE (1998) 4 NWLR (pt 545) 184:
"a trial judge has the right within the limits of the case before him to explore all angles and aspects of the facts, look at them with an analytical mind, express his opinion and make his findings based on the evidence before him and I may add expound on the law."
It is for this reason that the trial court's finding that the appellants having made part payment in fulfillment of their obligation cannot be heard to say that no such obligation exists is beyond reproach; it is disingenuous to say the least to accuse the trial court of ''...injecting into the judgment./' the issue of part payment. What is a court if it cannot look at the evidence before it, and analyze it, but be constrained from expressing its opinion garnered from such findings?
This court is satisfied that the trial court properly evaluated the evidence before it, and did not by any stretch of imagination substitute its opinion for the evidence before it, accordingly issues one and three are resolved in favour of the respondents, against the appellants.
Whether the 2nd appellant is a necessary party as to warrant Viability for the payment of sum of N465, 409,118.75 Kobo.
It is submitted for the appellant that the defendants are not under any obligation to pay any sum to the plaintiffs, because there is no existing contractual obligation between the parties, especially as Exhibit E was an agreement entered into voluntarily by the 1st plaintiff and the 1st defendant; and the 2nd defendant and the 2nd plaintiff are only the directing minds of the companies; he referred the court to BOLTON ENGINEERING CO. LTD V. GRAHAN & SONS LTD 1957, 1QB 159 at 172.
That it is clear from Exhibit E that the contract was between the plaintiff and the l5t defendant, he referred the court to page 12 and 197 to 198 of the record of appeal.
It is submitted for the respondents in response that from the pleadings, evidence adduced; the issues before the court cannot be effectively resolved without the joinder of the 2nfl appellant as a party to the suit; [earned counsel referred the court to GREEN V. GREEN (1987) SC 2 NSCC at 1123 and IGE V FARINDE (1994) 7 NWLR part 354 at 65.
That the 2nd appellant is in the middle of the entire transaction that gave rise to the present appeal, he did not only act for the 1st appellant but on many occasions acted for himself, in his personal capacity.
A necessary party to a case is one whose interest will be affected by the decision of a court in the matter at hand; his rights or interests will be affected either positively or negatively by the outcome of the case,
A court does not generally make an order or give a judgment that will affect the interest or right of a person or body that is not a party to a case before it, and whose side of the story was never heard in the matter. The only reason which makes it necessary to make any person a party to an action is that he should be bound by the reason of the action and the question to be settled in the case. For one to be a party therefore there must be a question in the action which cannot be effectually and completely settled unless that person is a party. See GREEN v. GREEN (1987) 3 NWLR (Pt. 61) 480 SC, and TAFIDA v. BAFARAWA & 500 ORS. (1999) 4 NWLR (Pt. 597) 70 at 83.
It is equally trite that anyone whose presence is crucial and fundamental to the resolution of a matter before the court must be made a party to the proceedings. See D. O. OGHENE & SONS LTD. v. W.E. AMORUWA & ANOR. (1986) 3 WNLR (Pt. 32) 856 at 863 SC; PEENOK INVESTMENTS LTD. v. HOTEL PRESIDENTIAL LTD. (1982) 12 S.C 17.
From the pleadings at pages 79 to 93 of the record of proceedings and even the evidence, the 2nd appellant is the business consultant to Ericson, that much is clear from Exhibit P, his evidence during cross examination at page 209 of the record and also Exhibit H; the 2nd appellant personally entered into Exhibits C and D, which were precursors to Exhibit E; and Exhibits K and L are all payments made by the 2nd appellant.
Equally important is the claim by the appellants that the payment made to the respondent was as a result of intimidation of the 2"d appellant, who was forced to hand over his house to one CSP Abdulyari Shuaya; no less important also is the fact that Exhibits A and B are two separate cheques signed by the 2nd appellant on the 20Lh of July, 2001 and 21sC December, 2001 for which were both dishonoured.
Now in view of these it is clear that the 2nd appellant is in the thick of the transaction that gave rise to this suit; his presence in this case is not only crucial but fundamental to the resolution of the dispute, as the action cannot be effectually resolved without him as a party; that being so this issue is also resolved in favour of the respondents, against the appellants.
Having resolved all the three issues for determination in favour of the respondents, against the appellants, the appeal fails, and is accordingly dismissed for lack of merit.
The judgment of the High Court of the Federal Capital Territory Coram Honorable Justice S.E. Aladetoyinbo of the 8th of March, 2012 is hereby affirmed.
N50,000,00 costs is awarded in favour of the respondents, against the appellants.
MOORE A. A. ADUMEIN, JCA: I had the privilege of reading the draft of the judgment just delivered by my learned brother, Mohammed Mustapha, JCA.
I agree with my learned brother that this appeal has no merit and I also dismiss it.
I abide by all the orders made in the leading judgment, including the order as to costs.
TANI YUSUF HASSAN, JCA : I read in advance the lead judgment delivered by my learned
My brother has thoroughly dealt with the issues in this appeal. I have nothing useful to add.
I also affirm the judgment of the lower court and abide by the order as to costs.
M.J. Numa Esq., with: J.A. Onuolu Esq., for the Appellants.
Ugochukwu Ezekiel Esq., with P.N. Okoro Esq., for the Respondents.