Court Of Appeal Resolves Breach Of Contract Dispute In Favour Of Benue State Govt, Reverses Decision Of Trial Court

*Dismisses Suit For Lacking In Merit.

The Court of Appeal sitting at Makurdi has overruled the decision reached by the High Court of Benue in the case of Klad and G. Concepts Ltd & Anor V. Benue State Government with Suit No. MHC/353/2020, giving judgement in favour of the appellant, Benue State Government.

The appeal was against the Judgment of the High Court of Benue State Nigeria Makurdi Division, Coram: W. I. Kpochi J, in in the said case, in which some of the claims of the Respondents as Claimants against the Appellant as Defendant were granted. Dissatisfied with the judgement of the lower court, the appellant promptly appealed against it vide its Notice of Appeal filed on 22/8/2022 on Four Grounds of Appeal thus;

The Parties filed and exchanged their briefs, which were adopted as their arguments at the hearing of this appeal on 5/6/2023. The Appellant was represented by A. A. Onoja Esq., appearing with C. E. Ojabo Esq.  The Respondents were represented by Chief T. Douglas Pepe SAN appearing with J. T. Msuean Esq., R. T. Angber Esq., J. T. Jinge Esq. and Q. M. Ikon Esq.

At the trial Court, the respondents had alleged that it had entered and performed its obligations under a contract with the Benue State Government for the developing and supply branded and/or customized souvenir shopping bags for distribution to the 23 Local Governments in Benue State for the 2018 yuletide season, however, the Benue State Government had failed to pay the agreed sum. The Benue State Government averred the otherwise, alleging that the Respondents had failed to fulfill its obligations under the contract. After hearing both parties, the court delivered judgement where some of the claims of the respondent were granted.

It is on the foregoing that the Benue State Government appealed. In response to the notice of appeal, the respondents filed a notice of preliminary objection wherein they challenged the competence of the appeal on three grounds. The preliminary objection was discountenanced after the court had listened to the arguments of both sides, and the appeal was heard.

The issues before the appeal court were thus;

1. Whether the Lower Court properly evaluated the evidence as it relates to Exhibit 4 in view of the complaint of the Appellant that it did not receive the branded bags? (Distilled from Grounds 1, 3 and 4)
2. Whether the non-production of file No. BLGCA/OFF/28/17 is not fatal to the decision reached by the Lower Court as Notice to Produce does not preclude the Respondents to produce a secondary copy in their possession to enable the Lower Court to evaluate same?

On issue 1, the appellants submitted that the respondents had failed to call evidence that proved due delivery of the contracted items to the appellant and as such the lower court had been in error when it failed to dismiss the case of the respondents for lacking merit. On issue 2, the appellant submitted inter alia that the Lower Court was wrong when it held that the entire dealings in the contract transaction were rushed in a roughshod manner with the Appellant massively dictating the terms to beat the unnecessary bureaucratic bottle necks for speedy execution of the contract and contended that this finding was not borne out of any evidence as in the Record of Appeal. It also submitted that the Lower Court was wrong to have held that there was a valid contract on the basis of the fact that they the appellant had been unable to produce secondary evidence of all the Minutes and Approvals contained in file No BLGCA/OFF/28/T7, notice of which had been given to them by the respondents.

On their parts, the respondents on issue 1 submitted inter alia that the Lower Court was right when it held, on the strength of the averments of the parties in their pleadings and after a careful examination thereof, that the case of the Respondents was admitted by the Appellant and contended that the Appellant having not appealed the said finding in law such a finding remained valid, subsisting and binding on the Appellant. On issue 2, the respondents submitted that the appellant had failed to appeal against the findings of the Lower Court after relying on File No. BLGCA/OFF/28/T7 and as such it should be held to be bound by the decision.

Resolving the issues, Georgewill JCA giving the lead judgement held that the contract documents and proof of delivery of the branded bags to the appellants through its staff, were very crucial and germane to the proper determination of the issues. Your Lordship described the situation of things thus;

“The Appellant denied awarding any contract to the Respondents. It also denied receiving any branded bags from the Respondents. In law, these are negative allegations which does not carry any initial burden of proof. The burden of proof was therefore, on the Respondents who had alleged positively that they had contract documents with the Appellant and that in pursuance of the contract they had produced and delivered branded bags to the Appellant, and were therefore, entitled to their claim for payment of the contract sum. I did not see any admission that obviated and lifted this burden off the shoulder of the Respondents as the Lower Court perfunctorily, but perversely, thought.”

Your Lordship went on to hold summarily that the respondents failure to provide evidence of the contract document and the delivery of the branded bags to the Appellants ended their claims before the lower court. According to the Court, a party who has pleaded and relied on a written contract cannot at trial rely on oral contract to prove written contract. Also, he noted that the Lower Court was in error when it mistook the legal effect of a Notice to Produce for the legal effect of withholding of relevant evidence.

The two issues were resolved in favour of the appellant, and the appeal was held to have merit and was allowed. In light of that, the court ruled that the Judgment of the High Court of Benue State Nigeria Makurdi Division, Coram: W. I. Kpochi J, in Suit No. MHC/353/2020: Klad and G. Concepts Ltd& Anor V. Benue State Government delivered on 4/8/2022, in which some of the claims of the Respondents as Claimants against the Appellant as Defendant were granted, is hereby set aside.

In its stead, the Respondents’ Suit No. MHC/353/2020: Kladand G. Concepts Ltd& Anor V. Benue State Government, is hereby dismissed for lacking in merit.