SUIT NO: FCT/HC/CV/879/2011

BOTH THE Plaintiff and the Defendant herein are limited liability
companies duly registered and organised under the laws of the
Federal Republic of Nigeria. Whereas the Plaintiff is an engineering
support company, the Defendant is a construction company. The
Plaintiff alleged that the Defendant failed or neglected to pay for
bitumen supplied to the Defendant for the execution of the Panyam-
Bokkos-Wamba Road Construction Project in Plateau State awarded
to the Defendant by the Federal Government of Nigeria, adding
that the Defendants issued cheques in its favour which were
returned unpaid upon presentation. In the present action, which
was initially brought under the Undefended List but subsequently
transferred to the ordinary cause list for plenary trial by an order
made under the hand of the Presiding Judge on 27/3/12, the Plaintiff
claims against the Defendant the reliefs endorsed in the writ of
summons issued out of the Registry of this Court on 28/11/11 as well
as in the statement of claim dated 27/3/12 as follows:
(a) The sum of N29,440,000.00 (Twenty Nine Million, Four
Hundred and Forty Thousand Naira) being the amount
due and payable to the plaintiff by the defendant for
the supply of six tankers of bitumen by the plaintiff on the
(b) Interest at the rate of 10% on the said sum from February
2011 until the debt is finally liquidated.
(c) The cost of this action.
The Defendant filed an amended statement of defence dated
10/10/12 by which it denied the Plaintiff’s claim and maintained that
the Defendant refused to pay the Plaintiff as no bitumen was in fact
supplied by the Plaintiff and/or received by the Defendant.
At the plenary trial, the parties fielded three (3) witnesses apiece.
The Plaintiff’s Managing Director Mr. Yomi Martins, testified as PW1;
Joseph Ademola Adesina testified as PW2, whilst one Joseph Unubi
testified upon subpoena ad testificandum as PW3. On the
Defendant’s side, Messrs Mathew Kyon and Jonathan Yusuf, who are
Laboratory Technicians in the employment of the Defendant,
testified as DW1 and DW2 respectively, whilst the Defendant’s Chief
Executive Officer, Chief Joseph Wahab, testified as DW3.
Testifying as PW1, the Plaintiff’s Managing Director, Mr. Yomi Martins
adopted his statement on oath dated 27/3/12 and tendered three
(3) Zenith Bank PLC cheques dated 28/2/11 drawn by the Defendant
in favour of the Plaintiff, 3BS Tinus Nig. Ltd as Exhibits P1, P1A, and P1B
respectively; as well as four (4) Guaranty Trust Bank PLC cheques
drawn by the Defendant in favour of the Plaintiff, 3BS Tinus Nig. Ltd as
Exhibits P2, P2A, P2B and P2C respectively. The PW1 deposed that the
Defendant’s Managing Director informed him through his business
associate Mr. Adesina that the Payam-Bokkos-Wamba road
construction project had been awarded by the Federal Government
to the Defendant and that he would like the Plaintiff to supply
bitumen for the execution of this project on liberal terms as the
Defendant could not afford to make upfront payment; that it was
agreed that the bitumen would be supplied to the Defendant
through the Plaintiff herein at the cost of N128,000.00 per ton ex Port
Harcourt; that 230 tons or six tankers of bitumen were supplied to the
Defendant’s site sometime in February 2011 and the Defendant
issued three (3) post-dated cheques all dated 28th February, 2011
drawn on Zenith Bank PLC for a sum of N25m as acknowledgement
of the initial bitumen supplied, which cheques were later cancelled
and replaced with a new set of two post-dated cheques of N9m
each and a third one for N7.7m; and that since payment was not
forthcoming after the supply of the first batch, the Plaintiff stopped
making further supplies. The PW1 further deposed that at the time
the supplies were made to the Defendant, there was serious
communal crisis in Plateau State and particularly in the
neighbourhood of the Defendant’s project, and deliveries were
made at late hours of the day; that tanker drivers were persuaded to
do the supplies at early hours at extra cost with security escorts since
they were required to park at Akwanga in neighbouring Nasarawa
State and sneak into Plateau State in the early hours of the morning
because of the curfew imposed at that time; that the bitumen
supplied was received by the Defendant and the quantities
confirmed by the Defendant’s site manager, but no invoices were
issued because the supplies were made at late hours; that the
Defendant has since used the bitumen supplied by the Plaintiff for
the road project; that the total cost of bitumen supplied is N29,
440,000.000 (Twenty Nine Million, Four Hundred and Forty Thousand
Naira only); that the post-dated cheques issued by the Defendant
were called off on the morning of 4/3/11 when they were due to
mature, and the Defendant issued another set of cheques drawn on
Guaranty Trust Bank dated 4th March 2011 to cover part of the
outstanding sum owing and due to Plaintiff for the bitumen supplied;
that these cheques were equally returned unpaid owing to nonconfirmation
by the Defendant; that after series of demands were
not heeded, the Plaintiff instructed their solicitors, Law Office of
Demola Bakre who wrote a formal letter of demand dated 4th
November, 2011 to which the Defendant’s solicitors responded by a
letter dated 8/11/11 denying knowledge of both the Plaintiff and Mr.
Adesina through whom the Defendant dealt with the Plaintiff; and
that the Defendant’s refusal to pay the said sum has adversely
affected the Plaintiff’s business which is largely dependent on
monies sourced from banks at huge interest rates.
Cross-examined by B. A. Oyefeso, Esq. of counsel for the Defendant,
the PW1 stated that he is a friend and business partner of Engr.
Adesina; that even though it was business that brought them
together, he knows nothing of the date of incorporation of the
Plaintiff company; and that he is aware that Engr. Adesina was the
supervising engineer for the Bayam-Bokkos-Wamba road project. He
maintained that he was never asked to return the first set of Zenith
Bank Cheques (i.e. Exhibits P1, P1A and P1B); that the Plaintiff sent the
tankers directly to Engr. Adesina and he does not know the name of
the Defendant’s site manager who received the six bitumen tankers.
He conceded that the tankers he referred to as “bitumen tankers”
are in fact called “Tar Boilers” that heat up the bitumen; and stated
that he did not know when the contract was awarded to the
Mr. Joseph Ademola Adesina testified as PW2. He adopted his
statement on oath dated 27/3/12 and tendered his statements of
account at Ecobank PLC for 31/1/2011; 30/6/11 and 27/10/11 as
Exhibits P3, P3A and P3B respectively, as well as his statement of
account at Intercontinental Bank PLC as Exhibit P4. He identified the
cheques tendered in evidence as those given to him by the
Defendant for onward transmission to the Plaintiff. The depositions in
the statement on oath of PW2 are essentially the same as those of
the PW1 set out above. Cross-examined by B. A. Oyefeso, Esq. of
counsel for the Defendant, the PW2 stated that he works at the
Highways Department of the Federal Ministry of Works; that although
he does not know the exact date the road construction contract
was awarded to the Defendant, he was the supervising engineer for
the contract; that the Plaintiff’s Managing Director, Mr. Yomi Martins
(PW1) is his uncle who undertakes business arrangements with his
wife; and that his employer knows nothing about his relationship with
the Plaintiff company. He maintained that he does not know the
name of the Defendant’s site Manager who received the bitumen
supplied; that his wife, his son and himself are the subscribers and
directors of the Plaintiff, with his wife as majority shareholder. He
denied knowing how the shares of the company were allotted and
maintained that Mr. Yomi Martins (PW1) is not a director of the
Plaintiff. Certified true copies of Forms CO2 and CO7 of the Plaintiff
were tendered through PW2 without objection as Exhibit P5.
Mr. Joseph Unubi who testified under subpoena as PW3 stated that
he is an engineer with the Ministry of Works presently working as
Resident Engineer at Samikaka, Jos Road but used to be Resident
Engineer at the Panyam-Bokkos-Wamba road project in Plateau
State; that he was in charge of materials from 2007 until March 2012;
and that his duties as Resident Engineer included testing materials
supplied to the site before they are put to use. He stated that he
knew the Defendant herein as the contractor handling the project
and maintained that he took charge of the bitumen supplied to the
site and conducted tests to ensure that they complied with the
Federal Ministry of Works specification. He recalled that as Resident
Engineer (Materials), he took delivery of bitumen at the early hours of
the day during the curfew period in Plateau State; and that he also
handled waybills to ascertain quantities supplied before discharge.
He stated that there were several waybills containing the names of
suppliers such as Oando PLC who came with certificates of quality;
and that 3BS Tinus was one of the suppliers of bitumen in the early
hours of the day along with Ringardas Nigeria Limited. Crossexamined
by B. A. Oyefeso, Esq., PW3 stated that he is a civil servant
and that Engr. Martins (PW1) and Engr. Adesina (PW2) are his senior
colleagues; that he has been at the Highways Department of the
Federal Ministry of Works since 1987 when he joined the service as a
pupil engineer; that the specification of the bitumen used in the site
was 60 – 70; that it was the contractor Stateco Nigeria Ltd that
placed the orders; and that he resided at the project site (at Bokkos)
during the period he worked as Resident Engineer. He stated that he
endorsed the waybills or invoices whenever he conducted tests on
the bitumen; and that he is not aware that Engr. Joseph Adesina is
the majority shareholder of the Plaintiff. When pressed by counsel on
how many tankers could bring in 230 tons of bitumen, the PW3
stated that some tankers come in 50 tons whilst others come in 25
tons. He maintained that the Defendant’s office was open
throughout the night as supplies were made at the early hours.
With the testimony of PW3, the Plaintiff closed its case. The defence
opened with the testimony of Mathew Kyon (DW1), a Laboratory
Technician in the employment of the Defendant, who adopted his
statement on oath dated 10/10/12 and tendered the Defendant’s
logbook as Exhibit D6. The DW1 deposed in his statement on oath
that his sole function was to test/evaluate the quality of bitumen
supplied by various suppliers for the Payam-Bokkos-Wamba raod
project; that he records in the logbook all bitumen supplied to the
Bokkos site; that upon receipt of the invoices/waybills of the
respective suppliers and after testing/evaluation, he acknowledges
the invoices/waybills which is countersigned by the Defendant’s
Materials Manager on site as well as the engineer representative of
the Federal Ministry of Works; and that the Plaintiff did not supply any
bitumen to the Bokkos site at any point in time. Under cross
examination by Deji Soremi Esq. of counsel for the Plaintiff, the DW1
maintained that work is still on-going and the company works with
bitumen at all times. He conceded that there is a resident engineer
from Federal Ministry of Works who tests materials for the project but
maintianed that he is the one in charge of making entries in the
logbook from waybills and invoices from the suppliers; and that he
keeps the originals of the waybills and invoices. He recalled that
curfew was imposed at a time but maintained that they never
stopped work on the project even during the curfew.
Testifying as DW2, Jonathan Yusuf, who is also a Laboratory
Technician in the employment of the Defendant, adopted his
statement on oath dated 10/10/12 wherein he deposed that his
schedule on site was to test/evaluate the materials (bitumen)
ordered and supplied; that he also operates the machine that mixes
bitumen and other materials into asphalt; that the Plaintiff did not
supply any bitumen to the Defendant at any point in time; and that
the usual practice for the supply of bitumen is by invoice/waybill and
the quality would be tested/evaluated to ensure that it meets
required specification. Cross-examined by Deji Soremi Esq., the DW2
stated that the project is still on-going; and that they moved to site in
2007 and have never lacked materials (including bitumen) to work
with at all material times.
The DW3, Chief Joseph Wahab adopted his witness Statement on
Oath dated 10/10/12 and tendered Exhibits D7 (A-F), D8 and D9.
The DW3 deposed in his statement on oath that the Defendant
never knew the Plaintiff prior to the facts that have given rise to this
suit; that the Defendant never approached the Plaintiff for the
supply of bitumen; that as is the practice, the Federal Ministry of
Works appointed Engr. Joseph A. Adesina as engineer
representative on site; that it was the said Engr. Joseph Adesina who
pleaded with him that the Defendant should purchase bitumen
through him to enable him make some monetary gains; that he
sought to know if the request will not conflict with his role as the
engineer representative of the Federal Ministry of Works on site and
the reply was in the negative; that he agreed to assist him and
requested him to supply 321 tons of bitumen at N160,000 per ton on
the assurance that the supplies will be made as the need arose
without delay, whilst payment would be made from proceeds
received from the Federal Government in the course of execution of
the road project; that the supply price came to N51,360,000, and
that it was further agreed that the Plaintiff company would be paid
additional N40,000 in the event of heating the bitumen; that when
the need arose for bitumen, Engr. Adesina informed him that his
supplier refused to supply the bitumen without instant payment or
sighting cheques issued by the Defendant in his favour; that in order
not to stall the project, the Defendant issued cheques in the name of
the Plaintiff for Engr. Adesina to show to his suppliers; that Engr.
Adesina later requested for another set of cheques explaining how
he left the previous cheques issued in Lagos; that the cheques were
issued on the understanding that they were only for sighting only
and not to be presented for payment since payment by the
Defendant would be made on receipt of payment from the Federal
Government and upon confirmation of the receipt of the supplies on
site; and that he clearly told Engr. Adesina that he will instruct his
bank not to honour the cheques without recourse to the Defendant.
He further deposed that Engr. Adesina relayed to him that his
supplier had released the bitumen to him but that he needed
money to transport same, whereupon the Defendant made
lodgements into Engr. Adesina’s account at Ecobank PLC; and that
neither the Plaintiff nor Engr. Adesina supplied bitumen to the
Defendant. The DW3 further deposed that as a result of the failure to
make delivery, the Defendant had to improvise by making
purchases from different suppliers including West African Bitumen
Emulsion Company Ltd ( 21/8/09), Ringardas Nigeria Ltd (11/1/09,
15/04/2010, 11/12/11), Nicoil Network Service (Nig) Ltd (23/8/2008),
Conoil Plc (29/09/09), Tony Turner Works (21/2/09), Wasere Limited
(09/02/10), Zakiya Global Nigeria (9/9/11) and Oando Plc (13/03/10).
He maintained that neither the Plaintiff, Engr. Adesina or the
Defendant’s bank informed him at any time that the cheques were
presented and returned unpaid until the commencement of this
action; that the Plaintiff was not paid because it did not supply any
bitumen to the Defendant, even as he had made several oral
demands for the return of the Defendant’s cheque but on each
occasion, Engr. Adesina claimed they were in Lagos; that their
Solicitor, Messrs Ibrahim Isiyaku & Co. had in fact written to Engr.
Adesina demanding the return of the cheques to no avail; and that
he knows that the Defendant is not indebted to the Plaintiff to the
tune of N29,440,000 (Twenty nine million, four hundred and forty
thousand naira) or any amount of money whatsoever.
Cross-examined by Deji Soremi Esq. of counsel, the DW3 maintained
that he has known Engr. Adesina for about two and half years in the
course of the project; that aside from the bitumen issue with the
Plaintiff, Engr. Adesina (PW2) sometimes brings approvals from his
boss at Federal Ministry of Works Headquarters, Mabushi, Abuja, and
was usually issued with cheques in his name to cover salaries, rent
and other expenses as contained in the Agreement-Bid 1. He stated
that no fixed amount of bitumen is used on the project per month;
that the average quantity of bitumen used per month could be 20,
40, 60, etc tons. The PW3 stated that he could not recall that the
Defendant was in dire need of bitumen at any time, but when
confronted with Exhibit D9 which indicated that the Defendant was
in in dire need of bitumen at a point in time, he conceded that
Exhibit D9 was written by their lawyers.
With the evidence of DW3, the plenary trial wound to a close, and
written final addresses were filed and duly exchanged pursuant to
Order 36 of the High Court of the Federal Capital Territory (Civil
Procedure) Rules, 2004. When the matter came up in court on
13/12/12, B. A. Oyefeso, Esq. of counsel for the Defendant adopted
the Defendant’s written final address dated 14/11/12 but filed
15/11/12 and urged the Court to dismiss suit, contending that the
Plaintiff failed to prove delivery of goods by direct evidence and
could not show that they made any supplies as alleged. In the same
vein, Deji Soremi, Esq. of the counsel for the Plaintiff adopted the
Plaintiff’s final address dated 3/12/12 and urged the Court to grant
the Plaintiff’s claim.
In the Defendant’s written final address, a sole issue is distilled for
determination as follows: Whether, having regards to the evidence
adduced, the defendant is liable to the plaintiff in respect of the
claims; whereas the Plaintiff also distilled a sole issue for
determination, namely: Whether on the preponderance of evidence
and balance of probabilities, the plaintiff has made out a case
entitling it to the claims sought in this action.
As can be gleaned from the foregoing, the issues distilled by the
parties are markedly similar and capture the gravamen of this
matter. The central issue to be resolved in this suit, which is
straightforward and falls within a narrow compass, is whether or not
the Plaintiff was able to establish that it supplied bitumen to the
Defendant as alleged. All the monetary reliefs claimed are
predicated on the affirmative resolution this question, and although
the parties opted for different phraseologies, they are basically
saying one and the same thing. Neverthesless, I will permit myself to
formulate the sole issue arising for determination as follows:
Whether, having regard to the pleadings and the evidence
led by the parties in this suit, the Plaintiff has not
discharged the onus of proof cast upon him by law so as to
entitle him to the reliefs sought.
It is on the basis of the above sole issue that I shall proceed presently
to dispose of this matter. As stated hereinbefore, the parties filed
and exchanged written final addresses which were adopted by their
respective counsel in open court. I will refer to the submissions
contained in the written addresses filed on behalf of the parties as I
consider relevant.
But before delving into an evaluation of the evidence adduced in
this suit, I consider it appropriate to restate the obvious that
evidence is the basis of justice, and the rule of evidence is that he
who asserts the positive must prove. See VULCAN GASES LIMITED v.
GESELLSCHAFT [2001] 26 WRN 1 at 59. The burden of proof rests upon
him who affirms and not upon him who denies, since by the nature
of things he who denies a fact cannot produce any proof. See
AROMOLARAN v. KUPOLUYI [1994] 2 NWLR (PT. 325) 221; ARASE v.
ARASE (1981) 5 SC 33 at 37; ELEMO v. OMOLADE (1968) NMLR 259;
OSAWARU v. EZEIRUKA (1978) 6-7 SC 135 at 145; UMEOJIAKO v.
EZENAMUO (1990) 1 SCNJ 181 at 189 and UGBO v. ABURIME [1993] 2
NWLR (PT. 273) 101. In a civil action such as the present, the onus
probandi lies on the party who will fail if no evidence were led on
either side. But this burden is not static. It shifts. See generally ss. 131,
132, 133 and 136 of the Evidence Act, 2011. In NWAGA v. REGISTERED
TRUSTEES RECREATION CLUB [2004] FWLR (PT. 190) 1360 at 1376, it was
held that the onus is on the plaintiff to adduce credible evidence in
proof of his case before it becomes necessary for the defendant to
call evidence to rebut the plaintiff’s assertions, even as the weakness
of the defendant’s case does not prove the plaintiff’s case. See also
LTD [2003] FWLR (PT. 186) 693 at 706.
The reliefs claimed in this suit as well as the evidence adduced on
behalf of the parties are set out in extenso hereinbefore. The Plaintiff
alleged that it supplied bitumen for the Defendant’s use in executing
the Payam-Bokkos-Wamba road project in Plateau State; that owing
to the curfew imposed at the time, the said supplies were made in
the early hours of the day; and that the Defendant issued certain
cheques in acknowledgement of the supplies made by it, which
cheques were returned unpaid upon presentation. The Defendant
admitted issuing the cheques but denied that the Plaintiff supplied
any bitumen as alleged or at all. Even as the onus probandi rests on
the Plaintiff to prove that it actually supplied bitumen to the
Defendant, the Plaintiff did not tender any waybills/invoices
acknowledged by the Defendant’s site manager official who
allegedly received the bitumen supplied. In a frantic bid to
substantiate its positive assertions, the Plaintiff has placed heavy
reliance on the cheques issued by the Defendant as well as the
testimonial evidence of its witnesses. But since the Defendants have
denied that the Plaintiff supplied any bitumen and the
supply/delivery of goods (including bitumen) can hardly be
evidenced cheques, let us now beam the searchlight on the
testimonial evidence adduced by the Plaintiff’s witnesses.
As stated hereinbefore, three (3) witnesses testified on behalf of the
Plaintiff. The testimony of PW1 is that he does not know the name of
the Defendant’s site manager who received the bitumen supplies
from the Plaintiff as the bitumen was sent directly to Engr. Adesina
(PW2). On his part, the PW2 (Engr. Adesina) to whom, according to
PW1, the bitumen was directly sent, stated in evidence that he too
does not know the name of the Defendant’s site manager who
received the bitumen from the Plaintiff. PW3, the Resident Engineer
who testified on subpoena stated that bitumen was supplied in the
early hours because of the curfew but could not readily remember
the names of those suppliers; although he subsequently mentioned
the Plaintiff along with one Ringardas Nigeria Limited. Again,
although the PW3 stated that he made endorsements on the
waybills/invoices whenever he carried out tests on bitumen supplied,
he did not produce even a single waybill/invoice evidencing the
supplies allegedly made by the Plaintiff.
The usual means by which the delivery of consignment of goods is
proved is by production of a waybill, invoice or delivery note duly
endorsed by the person who took delivery of the goods. I reckon
however that where such documentary evidence is not readily
available, the delivery of a consignment of goods is a fact provable
by direct evidence of the person who either delivered them or
witnessed the delivery. See EZEMBA v. IBENEME [2004] 14 NWLR (PT.
894) 617. In the case at hand, the aside from the fact that the
Plaintiff failed to produce any documentary acknowledgement of
the supplies it allegedly made to the Defendant, the Plaintiff also
failed to lead any direct oral evidence flowing from the mouth of
any person who allegedly made the delivery. Whilst the evidence
adduced by both PW1 and PW2 does not advance the Plaintiff’s
cause even by a hair’s breadth, that of the PW3 is also evidently
deficient for lacking specificity such that nothing concrete can be
ascertained therefrom.
It is well settled in our adversarial jurisprudence that a claimant must
succeed on the strength of his own case and not on the weakness
(or absence) of the defence. This principle is however subject to the
qualification that a plaintiff is entitled to take advantage of any
element in the defendant’s case that strengthens his own case.
What this means is that it is not enough for the plaintiff to assert that
the defendant’s case is weak or even that there is no defence.
There must be something of positive benefit to the plaintiff in the
defendant’s case. See UCHENDU v. OGBONI [1999] 5 NWLR (PT. 603)
337; (1999) 4 SC (PT. II) 1; AKINOLA v. OLUWO (1962) 1 SCNLR 352;
YUSUF v. ADEGOKE [2008] 40 WRN 1 at 51. However, I must confess
the futility of my search for any positive element in the Defendant’s
case that could strengthen or advance the Plaintiff’s cause in the
instant case. If at all, the evidence led by the Defendant dislodges
the Plaintiff’s assertions not only in relation to the circumstances in
which the cheques were issued but also renders improbable the
supplies allegedly made by the Plaintiff.
On the basis of the evidence adduced before this court, it seems to
me obvious that the Plaintiff did not succeed in his gallant efforts at
proving that he is entitled to the reliefs claimed. The learned counsel
for the Defendants, B. A. Oyefeso, Esq. is therefore perfectly right in
contending that the Plaintiff has failed to prove his case on a
balance of probabilities. In THE STATE v. COLLINS OJO AIGBANGBEE
& ANOR (1988) 7 SC (PT. 1) 154 at 168-169, Kayode Eso, JSC (of most
blessed memory) stated thus:
“[F]or be it noted, a court is a court of cold facts and law
and not a court of fiction. Fiction belongs to Alice in
Wonderland. Facts belong to the court where the Judge,
almost visibly, sees in his mind, a scale - hence it is called
an imaginary scale. He feeds facts into either scale,
depending on which side gives the evidence… a civil
case the Judge measures the delicacy of the tilting scale
at the time he assesses the evidence. The tilt may be
slight yet he gives judgment for the side to whom it tilts. If
there is no evidence fed into one of the scales, then it is
for whom the bell tolls - it tolls for the empty scale, for
eminently, the slightly fed scale wins against the empty
The sole issue for determination is resolved against the Plaintiff whose
claim fails in its entirety and is hereby dismissed with costs assessed at
N30,000.00 in favour of the Defendants against the Plaintiff.
Presiding Judge
Demola Bakre, Esq. & Deji Soremi, Esq. for the Plaintiff
B. A. Oyefeso, Esq. for the Defendant