(2019) lpelr-46541(sc)
TRANSCRIPT
ASHAKACEM PLC v. ASHARATULMUBASHSHURUN INVESTMENT LTD
CITATION: (2019) LPELR-46541(SC)
In the Supreme Court of Nigeria
ON FRIDAY, 1ST FEBRUARY, 2019Suit No: SC.213/2016
Before Their Lordships:
MARY UKAEGO PETER-ODILI Justice of the Supreme CourtKUMAI BAYANG AKA'AHS Justice of the Supreme CourtKUDIRAT MOTONMORI OLATOKUNBOKEKERE-EKUN Justice of the Supreme Court
AMIRU SANUSI Justice of the Supreme CourtEJEMBI EKO Justice of the Supreme Court
BetweenASHAKACEM PLC - Appellant(s)
AndASHARATUL MUBASHSHURUN INVESTMENTLIMITED - Respondent(s)
RATIO DECIDENDI
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1. APPEAL - FRESH POINT(S) ON APPEAL: Whether the Supreme Court canpronounce on an issue not raised at the Court of Appeal"The angle taken by the appellant is that Exhibit L which was tendered andadmitted before the trial Court should herein be discountenanced as the Courtbelow ought to have known that the document was computer generated and didnot meet the conditions provided for under Section 84 (4) of the Evidence Act. Theresistance from the respondent stems from the fact that this contention of theappellant is belatedly brought up at this stage as it was not an issue at the Court ofAppeal and so cannot be taken up here since it was not protested against in theCourt below and a pronouncement made upon it. Again for full measure is that thisCourt cannot enter into the determination on the issue, leave of Court having notbeen sought and obtained in that regard being a fresh issue on appeal since notbeing raised in the Court of Appeal though presented in the trial Court. Theimplication is that after the trial Court's pronouncement or use thereof, the matterwas abandoned at the stage of the Court below and so the issue rested for all timeas there is no competence for appeal from High Court to the Apex. See Idufueko vPfizer Products Ltd (2014) 12 NWLR (Pt.1420) 96 at 122; Guobadia v The State(2004) LPELR - 1344 (SC) page 11; Section 233 (1) of the 1999 Constitution;Aladejobi v NBA (2013) 5-7 MJSC (Pt.11) 20 -207."Per PETER-ODILI, J.S.C. (Pp.26-27, Paras. B-B) - read in context
2. APPEAL - INTERFERENCE WITH CONCURRENT FINDING(S) OF FACT(S):Attitude of the Supreme Court to interference with concurrent finding(s) of fact(s)of Lower Courts"This Court is herein faced with concurrent findings of fact of the two Courts belowthat the respondent had supplied 6,384,469 litres of LPFO to the appellant whichthe appellant urges the Court to depart from and the question that is thrown upalongside that invitation of the appellant is if this Court is armed with what wouldpropel such an upset of the earlier findings such as that if the findings wereperverse or bedeviled with error in substantive or procedural law which if notcorrected will lead to a miscarriage of justice. Indeed there is a plethora of judicialauthorities to the effect that disturbing concurrent findings of fact of two or moreCourts below is not done lightly or unadvisedly. That such an interference is usuallyguided to avert a miscarriage of justice and not offhandedly as the fancy takes thehigher appellate Court. See Bankole v Pelu (1991) 8 NWLR (Pt.211) 23; Sosanya vOnadeko & Ors (2005) LPELR - 3105 (SC) pages 37-38 per Ejiwunmi JSC; Oseniv Bajulu (2009) LPELR - 2796 (SC) 14; Lokoyi & Ors v Olojo (1983) 8 SC61."Per PETER-ODILI, J.S.C. (Pp. 31-32, Paras. B-A) - read in context
3. APPEAL - INTERFERENCE WITH CONCURRENT FINDING(S) OF FACT(S):Circumstances under which an appellate court will interfere with the concurrentfindings of two lower Courts"An appellate Court will not readily interfere with the concurrent findings of two ormore Courts unless the appellant can show that such findings are perverse andwould lead to miscarriage of justice if nothing is done. See: Bankole v. Pelu (1991)8 NWLR (Pt. 211) 23."Per AKA'AHS, J.S.C. (P. 36, Paras. A-B) - read in context
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4. CONTRACT - OFFER AND ACCEPTANCE: Whether acceptance of an offer isnecessary in order to crystallise a contract"In this instance Exhibit M contains the respondent's dual requests on upwardreview of the contract prices of LPFO supplied to the appellant's Kano and Ashakastorage tanks. For LPFO supplied to Kano the respondent had requested for areview from N59.50 to N69.50 per litre. For supplies to Ashaka, the respondentoffered to supply LPFO at N75.00 per litre as against the contract price of N65.00per litre. Exhibit E is the reply to Exhibit M which is silent on the request for upwardreview of supplies. No evidence was adduced to show that appellant approved inwriting the respondent's request on the new contract price offer of N69.50 per litreor any other price for supplies to Kano storage tank. The implication of what is onground is that an offer of the upward review remained unaccepted and so it cannotbe said that there was a valid contract in the absence of the unconditional orunqualified acceptance of an offer in order to have a valid contract on the offer tosupply at N69.50 of LPFO. Also there was no offer to supply at N75.00 per litre. Ona scenario such as the present, I rely on the following cases on the need for thereto be unqualified acceptance of an offer in order to have a valid contract.(1) OMEGA BANK PLC v O.B. C. LTD (2005) 8 NWLR (Pt.928) 547 at 575 Para A."In order to decide whether the parties have reached an agreement, it is usual toinquire whether there has been a definite offer by one party and an unqualifiedacceptance of that offer by another.It is the Law of contract that the letter of acceptance must unqualifiedly accept theparticular offer".(2) BEST (NIG.) LTD V BLACKWOOD HODGE (NIG.) LTD (2011) 5 NWLR (Pt.1239) 95at 127 Para G. "An offer must be unconditionally and unqualifiedly accepted. Anyaddition to or subtraction from the terms of the offer is an alteration to the termsand amounts to a total rejection of the offer by the offeree".(3) NNEJI v ZAKHEM NIG. LTD (2006) 12 NWLR (Pt.994) 297 at 311 Para H."It is trite law that an offer must be accepted in order to crystallize into a contract".I agree with the appellant's learned counsel that it is trite law that there are threeessential ingredients of a valid contract, an offer, an unqualified acceptance of thatoffer and consideration.(1) See SONA BREWERIES v SIR SHINA PETERS & ANOR (2005) 1 NWLR (Pt.908)478 at 488 where it was held thus:-"And before any contract or agreement can be said to come into existence, in law,there must be an unmistaken and precise offer and unconditional acceptance ofthe terms mutually agreed upon by the parties. In other words the parties to theagreement must be in consensus ad idem as regards the terms and conditionsfreely and voluntarily agreed upon by them. Both sides to the contract must beclear as to what the more fundamental term and crucial terms of the agreementconnote before the agreement can be said to come into legal effect". Exhibit Ewhich allegedly fixed N75.00 per litre as contract price for supplies to appellant'sKano storage tank could not have been a response to/acceptance of theoffer/request contained in Exhibit M for a reviewed contract price of N69.50 perlitre, and so the Court of Appeal was evidently not right in its decision allowing theCross-Appeal."Per PETER-ODILI, J.S.C. (Pp. 16-19, Paras. F-F) - read in context
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5. CONTRACT - COUNTER OFFER: Legal effect of a counter offer"In BEST (NIG.) LTD V BLACKWOOD HODGE (NIG.) LTD (2011) 5 NWLR (Pt.1239) 95at 127 Para G-H. "An offer is impliedly rejected if the offeree instead of acceptingthe original offer makes a counter-offer which varies the terms proposed by theofferor. Hyde v Wrench (1840) Bear. 334. The Legal effect of a counter offer is torepudiate or discharge the original offer so that it cannot subsequently be acceptedby the offeree". See also Afrotec Technical Service (Nig.) Limited v M.I.A. & SonsLimited (2000) 15 NWLR (Pt.692) 730."Per PETER-ODILI, J.S.C. (P. 20, Paras. A-C) -read in context
6. EVIDENCE - ORAL/DOCUMENTARY EVIDENCE: Whether oral evidence can beallowed to discredit or contradict a documentary evidence"...What is clear from the opposing positions of the trial Court and that of the Courtof Appeal in their interpretation of the Exhibits M and E is that while the trial Courttook the stance that the contracts having been reduced into writing no oralevidence can be led to add or vary it while the Court of Appeal had wanted partiesto lead evidence to the meaning of Exhibit E.For a fact the stance of the Court of Appeal runs counter to the statutory provisionson the matter and specifically. I refer to Section 128 (1) of the Evidence Act whichprovides as follows:-Section 128 ( 1) of the Evidence Act:"When a judgment of a Court or any other judicial or official proceeding contractgrant or other disposition of property has been reduced to the form of a documentor series of documents, no evidence may be given of such judgment orproceedings or terms of such contract, grant or disposition of property except thedocument itself or secondary evidence of its content in cases where secondaryevidence is admissible under this Act; nor may the contents of any such documentbe contradicted, altered, added to override by oral evidence".In EZENWA v K.S.H.S.M.B. (2011) 9 NWLR (Pt.1251) 89 at 118 paras B-C."Where a case is fought on pleadings supported by documentary evidence, oralevidence should not be allowed to contradict the clear terms of the documentssince the task before the Court is to interpret or construct the terms of the saidexhibits".It is now trite in law that oral evidence is inadmissible either to add to or subtractfrom the contents of a document as a document speaks for itself with the resultthat parties cannot give evidence contrary to its contents. It follows therefore thatno burden of proof rests on the appellant to discharge on the interpretation ofcontractual documents since the primary duty in interpretation of documents isplaced squarely on the Court and the Court discharges that duty without the aid oforal evidence. The task is carried out by the Court within the case fought onpleadings supported by documentary evidence which precludes oral evidencebeclouding or contradicting the clear terms of the documents. See Bongo vGovernor Adamawa State (2013) 2 NWLR (Pt.1339) 403 at 444, Uzamere vUrhoghide (2011) All FWLR (Pt.558) 839; Ezenwa v K.S.H.S.M.B. (2011) 9 NWLR(Pt.1251) 89 at 118."Per PETER-ODILI, J.S.C. (Pp. 14-16, Paras. D-D) - read incontext
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7. EVIDENCE - BURDEN OF PROOF/ONUS OF PROOF: Whether a party seekingdeclaratory reliefs must establish his entitlement to the reliefs upon the strength ofhis own case"A facet appearing in the answer to the question herein raised is that the primaryreliefs asked for by the respondent are declaration on the variation of the contractprice and the validity of the contract and this brings into operation the fact that aparty who claims declaratory reliefs has a duty to prove entitlement to thedeclaration unassisted by the weakness in the opponent's case."Per PETER-ODILI,J.S.C. (P. 16, Paras. D-F) - read in context
8. EVIDENCE - DOCUMENTARY EVIDENCE: When is the proper time for taking anobjection to the admissibility of a document"The objection against a document is to be raised only at the point of tendering itin evidence not before such as at the preliminary stage and that is what a pre-trialsession is. I place reliance on the following cases - Adejumo & Anor v Governor ofLagos State (1970) LPELR - 99 (SC) page 7; Itim & Ors v Ikpe & Anor (1983) LPELR -1172 (SC) P.19."Per PETER-ODILI, J.S.C. (P. 23, Paras. B-D) - read in context
9. EVIDENCE - STATEMENT MADE WITHOUT PREJUDICE: Whether a statementmade without prejudice during a negotiation can be admitted in court when suchnegotiation fails"...That being the law it falls to reason that the letter dated 2nd March 2009 havingbeen made in the process of reconciling the dispute between the parties and so theCourt of Appeal was right to have upheld the decision of the trial Court on thedocument.The principle is anchored on the basis that at the point of mediation, parties shouldspeak freely all in the quest for a peaceful resolution of the dispute. This principleof free discussion will be seriously prejudiced or impaired if any offer or admissionmade in the process of the negotiation could be given in evidence and used insupport of a party's case in Court afterwards where the negotiation breaks down.Therefore when those negotiations are reduced in writing they are usually marked"without prejudice" for the avoidance of doubt and so remain inadmissible againstthe parties or any of them in the ensuing suit in Court. However, if the words"without prejudice" is not stated in plain language, it does not detract from the factthat the words are implied in the negotiations conducted in documentary form orverbally. See Ashibuogwu v Attorney General Bendel State (1988) 1 SC 248; (1988)1 NWLR (Pt.69) 138 at 169 which case interpreted Section 198 of the Evidence Actwhich provisions are impari materia with the old Evidence Act which interpretedthe law in accordance with the established cannon of interpretation, reliance beingplaced on public policy in the protection and service of public interest. This is allthe more germane at this current time where the trend is the encouragement ofmediation and resolution of disputes in peaceful atmosphere without resorting toCourt process. All I have been I have been labouring to put across is that the Courtbelow was right in its findings and decision on this issue that the said document of2nd March, 2009 remained outside and inadmissible as evidence at the trialproper."Per PETER-ODILI, J.S.C. (Pp. 23-25, Paras. D-A) - read in context
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10. EVIDENCE - DOCUMENTARY EVIDENCE: Whether an unsigned document maybe admitted in evidence"The appellant is urging this Court to discountenance Exhibit L because it wasunsigned but the appellant did not take up the findings of the Lower Court whichstated that this case is of peculiar circumstance that cannot be ignored. The pointhas to be made that the requirement of signature is made by the law to determineits origin and authenticity with regard to its maker and so where certain situationsexist an unsigned document could be admissible as in this instance where oralevidence clarifying the document and its authorship as in the case at hand therebyrendering such an unsigned document admissible. This unusual but allowableexception to the general rule was well explained in this Court in the case of Awolaja& Ors v Seatrade G.B.V. (2002) LPELR - 651 per Ayoola. JSC as follows:-"A signed document though valuable as putting it beyond peradventure what termsthe parties have agreed to is not essential to the existence of a contract ofaffreightment. Where the immediate parties to the agreement do not deny theiragreement or the existence of the contract of affreightment and there is no doubtabout their intention that they should be bound, barring statutory provision to thecontrary, (and none has been cited by the defendants) the existence of thecontract cannot be impugned on the ground that the document embodying theterms they have agreed to was unsigned, unless the parties have made such acondition of their being bound". (Italics supplied). The cognizibility of the origin ofExhibit L is underscored in this instance where the appellant's sole witness statedthus:-"Exhibit L is dated 12/5/2008. Exhibit L was copied to me and in the figures inattachment of Exhibit L. 6.384,469 litres according to dispute. I agree that Exhibit Lis confirming Exhibit F".Clearly the parties are agreed on the said Exhibit L and that it emanated from theappellant and so the current posture on the said Exhibit L by the appellant isstrange and so the Court below had its findings well supported by evidence and foreffect I shall quote excerpts therefrom thus:-"Counsel to the appellant submitted that the lower Court ought not to have reliedon Exhibit L because the email was unsigned. This argument, with respect, cannothold water in the circumstances of this case because the purchasing manager ofthe appellant at the time, Dahiru Alhassan, one of the addressee on the email andwho testified as the witness of the appellant, confirmed under cross examination,the origin and authenticity of the email and of attachment to it. He stated: "...Exhibit L is dated 12/5/2008. Exhibit L was copied to me and in the figures in theattachment of Exhibit L 6.384.469 litres according to dipping. I agree that Exhibit Lis confirming Exhibit F". The finding of the Court of Appeal on the point isunassailable and I am at one with it"Per PETER-ODILI, J.S.C. (Pp. 27-29, Paras. C-E) -read in context
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MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the
Leading Judgment): This is an appeal against the decision
of the Court of Appeal, Kaduna Division or Court below or
Lower Court delivered on 28/1/2016 Coram: Umani Musa
Abba-Aji, Habeeb Adewale Abiru and Amina Audu Wambai
JJCA. The Court below dismissed the appellant's appeals
(Interlocutory and Substantive) and allowed the
respondent's cross-appeal in which the Court below held
the appellant indebted to the respondent in the sum of
N126,777.015.00 as against the sum of N91,662,435.44K
awarded in favour of the respondent by the trial Court
presided over by Tani Yusuf Hassan J.
On the 13th day of November, 2018, the date of hearing,
learned counsel for the appellant, Prof Taiwo Osipitan SAN
adopted the brief of argument filed on 17/5/16 and a reply
brief filed on 13/4/17.
The case of the respondent on the pleadings was that on
the 24th of July, 2007 the parties entered into a contract
for the supply and purchase of Low Pour Fuel Oil (LPFO)
and it was agreed that the respondent would supply Eleven
Million liters of Low Pour Fuel Oil (LPFO) to the appellant
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and which Low Pour Foul Oil (LPFO) was to be offloaded
into the appellant's storage tanks at its offices in Ashaka
and Kano within six weeks and that the unit price per liter
for the supply to Ashaka would be 65.00 while that for Kano
would be 59.50 and that payment was to be made within
two weeks of supply of the low Pour Fuel Oil (LPFO) by the
respondent and confirmation of its receipt by the appellant.
That the contract document was executed by the
representatives of the parties and that due to exigent
circumstances, the respondent applied three times for
extension of delivery period and that the extension was
granted and acceded to by the appellant.
That in the course of the supply, the price of the product
rose and it became impossible for the respondent to
continue the supply at the price agreed per liter and
he wrote to the appellant requesting for a price review and
that the appellant approved the request and a price of
N75.00 per liter of Low Pour Fuel Oil (LPFO) was agreed.
The review price of N75.00 per liter agreed by the parties
was a flat rate for all supplies to Kano and Ashaka storage
facilities and that the allegation of a shortfall of 1.05
Million
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liters of LPFO was non-existent and was introduced by the
appellant to bring confusion.
The respondent supplied the product into the appellant's
Kano storage facility and sent a delivery notification to the
appellant where its Stores manager wrote via email that it
supplied a total of 6,384,469 liters of LPFO into the Kano
Storage tanks of the appellant and this was subsequently
confirmed by a hard copy of a report on the quantity of
LPFO reaffirming that 6,384,469 liters of Low Pour Fuel Oil
(LPFO) was supplied into its Kano Storage tank and the
appellant accepted the product, as the product supplied
was found to be within the range of the appellant's quality
parameters from the dip result conducted.
That total price of the product supplied was
N478,835,175.00 and out of which the appellant paid
N352,058,160.6 leaving a balance of N126,777.014.37
which the appellant has failed to pay despite repeated
demands. That all the subsequent liters written by the
appellant and alleging a shortfall were afterthoughts. It
was its case that it agreed to absorb 660,000 liters out of
the alleged shortfall
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in its letter dated 2nd of March, 2009 in the spirit of
reconciliation at a meeting chaired by a third party and also
in return for the appellant issuing it with a contract for the
supply of Thirty Million liters of LPFO, and not because it
acknowledged any actual shortfall and that it was not
indebted to the appellant for any such shortfall.
In its case on the pleadings, the appellant admitted that on
the 24th of July, 2007 the parties entered into a contract
for the supply and purchase of Low Pour Fuel Oil (LPFO)
and that it was agreed that the respondent would supply
Eleven Million liters of Low Pour Fuel Oil (LPFO) to it and
which Low Pour Fuel Oil (LPFO) was to be offloaded into its
storage tanks at its offices in Ashaka and Kano within six
weeks. The appellant admitted that it was agreed that
payment was to be made within two weeks of supply of the
Low Pour Fuel Oil (LPFO) by the respondent and
confirmation of its receipt by the appellant and that the
contract document was executed by the Representatives of
the parties and also that due to exigent circumstances,
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the Representatives applied three times for extension of the
delivery period and that it granted and acceded to the
extensions. The appellant further admitted that in the
course of the supply, the respondent wrote to it requesting
for a price review, and it was its case that the requested
review only affected delivery to Ashaka.
The appellant admitted that the respondent sent a delivery
notification to it saying that the required quantity of the
product had been delivered into the Kanci Storage tanks
and 'requested it to send its officials and that dipping was
carried out to determine the content of the product in each
of the storage tanks and examination indicated that
6,375,108 liters of LPFO was supplied. It was its case that
it was no longer indebted to the respondent on the
contract.
That matter proceeded to trial and in the course of which
the parties called one witness each and tendered exhibits in
proof of their respective cases. By the records, the letter
dated 2nd of March, 2009 which the appellant sought to
tender was rejected, same having been made in the process
of settlement of the dispute between the parties. The
records also show that after the appellant had closed its
defence and the matter was adjourned for adoption of
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of written addresses, the appellant filed an application
seeking to re-open its case to lead further evidence and the
trial Court took arguments on the application and
dismissed same in a considered ruling. At the conclusion of
the trial and after final written addresses by the parties,
the trial Court delivered its judgment wherein it found that
the respondent delivered 6,384,469 liters of LPFO into the
Kano storage tanks of the appellant and that the supply was
made at N69.50 per liter, and not N75.00 per liter claimed
by the respondent and thus entered judgment in favour of
the respondent in the sum of N91,662,435.44 together with
interest at the rate of 10% from the date of judgment until
full liquidation and the respondent was awarded cost in the
sum of N60,882.00.
Both the appellant and the respondent were dissatisfied
with the judgment of the trial Court against which the
appellant filed two notices of appeal - (i) notice of appeal
dated the 24th of January, 2014 and which was filed with
leave of the Lower Court, containing three grounds of
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appeal and it was against the two Rulings of the trial Court
rejecting a letter tendered by the appellant and dismissing
the application of the appellant to reopen its case to lead
additional evidence; and (ii) notice of appeal dated the 3rd
of October, 2013 containing seven grounds of appeal and
directed against the final judgment of the trial Court. On its
part, the respondent filed a notice of cross appeal dated
23rd of December, 2013 against the final judgment of the
trial Court and it contained two grounds of appeal. The
appellant's appeal was dismissed by the Lower Court and
the respondent cross-appeal was upheld. Dissatisfied, the
appellant appealed to this Court against the concurrent
findings of the two lower Courts.
The appellant identified four issues for determination which
are as follows:-
i. Whether learned Justices of the Court of Appeal
were right or wrong on the interpretation placed on
Exhibits E and M and in arriving at the conclusion
that parties had agreed to vary the price of supplies
of LPF0 to Kano from N59.50 to N75.00 per litre.
ii. Were the learned Justices of the Court of Appeal
right or wrong in their decision that the learned
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trial Judge rightly rejected the respondent's letter
dated 2nd March, 2009 in evidence on the ground
that the said letter is privileged?
iii. Whether the learned Justices of the Court of
Appeal rightly or wrongly endorsed the admissibility
of Exhibit L and the attached internal memorandum
of the appellant notwithstanding non-compliance with
the mandatory conditions in Section 84 (1) of the
Evidence Act on admissibility of electronic
mail/evidence and the non-signing of attached
internal memorandum.
iv. Were the learned Justices of the Court of Appeal
right or wrong in the circumstances in the selective
interpretation of the preamble and main part of
Exhibit K in the determination of quantity of LPFO
supplied to appellant's Kano tank?
The respondent formulated four issues for determination
which are thus:-
1. Whether the Lower Court was right when it held
that the LPFO supplied by the respondent to the
appellant was at the rate of N75.00 per litre.
2. Whether the Lower Court was right in affirming the
decision of the trial Court in declaring the letter
dated 2nd of March, 2009 tendered by the appellant
inadmissible.
3. Whether based on the grounds of appeal and issues
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for determination before the Lower Court, the Court
was right in not disturbing the admission of Exhibit L
in evidence by the trial Court and whether this Court
should disturb the said admission made by the trial
Court.
4. Whether the Lower Court was right in affirming the
findings of the trial Court that the respondent had
supplied 6,384,469 liters of LPFO to the appellant.
I shall make use of the issues as crafted by the appellant
for ease of reference.
ISSUE 1:
Whether the learned justices of the Court of Appeal
were right or wrong on the interpretation placed on
Exhibits E and M and in arriving at the occasion that
parties had agreed to vary the price of supplies of
PLFO to Kano from N59.50 to N75.00 per litre.
Learned counsel for the appellant, Prof Osipitan SAN
contended that the appellant is precluded by the trite
principles of law as embraced by judicial authorities that
where a contract has been reduced into writing oral
ev idence i s i nadmiss ib le t o add o r vary the
agreement/contract. He cited Section 128 (1) of the
Evidence Act; Ezenwa v K.S.H.S.M.B. (2011) 9 NWLR
(Pt.1251) 89 at 118; Bongo v Governor Adamawa State
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(2013) 2 NWLR (Pt.1339) 403 at 444; Uzamere v
Urhoghide (2011) All FWLR (Pt.558) 839; Basil v Fajebe
(2001) SCNJ 257 at 285-286.
That it is trite that a document speaks for itself with the
result that parties cannot give evidence contrary to its
content. He stated that appellant had no burden of proof to
discharge on the interpretation of contractual documents
as the interpretation of documents is that of the Court and
this duty is performed without the aid of oral evidence. He
relied on Ezenwa v K. S.H.S.M.B. (2011) 9 NWLR (Pt.1251)
89 at 118.
Learned Senior Advocate for the appellant stated that there
was no consensus on the price increase for Kano supplies
whereas Exhibit M contains a request for N69.50 per litre
and the reply Exhibit E is silent on the request and so the
Court of Appeal ought not to have upheld the claim of
N75.00 per litre. That the decision of the Court of Appeal
on the award of #126,777,014.37 ignored the agreement of
the parties that the contract sum is subject to the deduction
of 5% withholding tax which was not taken into account by
the Court in arriving at the figure of #126,777,014.37.
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Learned counsel for the respondent, Usman Umar Fari Esq.
contended that based on the pleadings and evidence before
the trial Court the price was reviewed to N75.00 per litre to
both Kano and Ashaka storage facilities. That the
respondent was not cross-examined on the pieces of
evidence before the trial Court and so there is a
presupposition that the appellant had accepted the
respondent's testimony on this point. He cited Gaji v
Paye (2003) 8 NWLR (Pt.823) 583.
He stated on that issues pertaining to offer and acceptance
on the point were not among the issues pronounced upon
by the Lower Court and no leave of this Court was sought
and obtained before raising the issue herein and so
arguments on the point should be discountenanced and if
left as validly raised there is acceptance of Exhibit E from
the part of appellant as an offer can be accepted impliedly
or by conduct. He cited Okubule v Oyagbola (1990) 4
NWLR (Pt.147) 723 etc.
The question on this Issue one is, whether the Court of
Appeal was right to hold that by virtue of Exhibits E and M,
the parties had agreed to vary the price of the LPFO
supplied by the respondent to Kano storage tank from
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N59.50 per litre to P475.00 per litre.
Stated differently, whether the Court below was correct or
not in their decision allowing the cross-appeal setting aside
the award of N91,662,435.44 made by the trial Court and
replacing same with the award of N126,777,014.37 on the
ground that the parties had mutually varied the contract
price from N59.50 to #75.00 per litre for supplies to LPFO
the appellant's Kano storage.
It is interesting that both appellant and the respondent
appealed against the trial Court's decision on the price
variation. While the appellant maintained that there was no
agreement for upward review of the prices of LPFO
supplied to appellant's Kano storage tank, the respondent
insisted that contrary to the trial Court's decision for an
upward review to N69.50 per litre the proper reviewed
price should be N75.00 per litre.
The Court of Appeal agreed with the position taken by the
respondent/cross appeal on that point. Again of note is that
the trial Court and the Court below each reached its
decision on their interpretation of Exhibits M and E, the
relationship between Exhibit M and E being the basis of
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the differing decisions.
I shall quote for effect the exact words of the Court below
at pages 1091-1092 and page 1093 of the Record wherein
Abiru JCA who delivered the lead judgment stated thus:-
"Now it is an elementary principle of interpretation of
documents that where the language used by parties in
couching the terms or provisions of a document are
clear and unambiguous the Court must give words in
the document their simple ordinary and actual
grammatical meaning.. Applying this principle to the
above reproduced contents of Exhibits M and E, what
the words therein convey is that while the respondent
requested for a differential review of the prices for
supplies to Kano Storage and Ashaka Storage of the
appellant, the management of the appellant approved
one price review of N75.00 per litre for all the
supplies of the LPF0".
Again at page 1093 of the record, the Court of Appeal per
Abiru JCA held:
"It is evident from the pleadings of the parties and
from the evidence led that there was an agreement
between the parties to review the price supply of
LPFO contained in the original contract Exhibit A and
the review from the price of #65.00 per litre for the
13
(201
9) LP
ELR-46
541(
SC)
supply to Kano facility and to N65.00 per litre for the
supply to Ashaka storage facility by a flat rate of
N75.00 per litre for all supplies.
This issue for determination is also resolved against
the appellant in the Cross-Appeal".
At the Court of first instance the learned trial judge had
held thus:
"By exhibits F, K and L, the respondent is presumed
to have accepted the price review of Kano Storage at
N69.50 per litre".
The decision of the trial Court above stated was set aside
by the Court of Appeal which replaced it with a decision on
N75.00 per litre as the agreed contract price.
What is clear from the opposing positions of the trial Court
and that of the Court of Appeal in their interpretation of the
Exhibits M and E is that while the trial Court took the
stance that the contracts having been reduced into writing
no oral evidence can be led to add or vary it while the
Court of Appeal had wanted parties to lead evidence to the
meaning of Exhibit E.
For a fact the stance of the Court of Appeal runs counter to
the statutory provisions on the matter and specifically. I
refer to Section 128 (1) of the Evidence Act which provides
14
(201
9) LP
ELR-46
541(
SC)
as follows:-
Section 128 ( 1) of the Evidence Act:
"When a judgment of a Court or any other judicial or
official proceeding contract grant or other disposition
of property has been reduced to the form of a
document or series of documents, no evidence may be
given of such judgment or proceedings or terms of
such contract, grant or disposition of property except
the document itself or secondary evidence of its
content in cases where secondary evidence is
admissible under this Act; nor may the contents of
any such document be contradicted, altered, added to
override by oral evidence".
In EZENWA v K.S.H.S.M.B. (2011) 9 NWLR (Pt.1251) 89
at 118 paras B-C.
"Where a case is fought on pleadings supported by
documentary evidence, oral evidence should not be
allowed to contradict the clear terms of the
documents since the task before the Court is to
interpret or construct the terms of the said exhibits".
It is now trite in law that oral evidence is inadmissible
either to add to or subtract from the contents of a
document as a document speaks for itself with the result
that parties cannot give evidence contrary to its contents.
15
(201
9) LP
ELR-46
541(
SC)
It follows therefore that no burden of proof rests on the
appellant to discharge on the interpretation of contractual
documents since the primary duty in interpretation of
documents is placed squarely on the Court and the Court
discharges that duty without the aid of oral evidence. The
task is carried out by the Court within the case fought on
pleadings supported by documentary evidence which
precludes oral evidence beclouding or contradicting the
clear terms of the documents. See Bongo v Governor
Adamawa State (2013) 2 NWLR (Pt.1339) 403 at 444,
Uzamere v Urhoghide (2011) All FWLR (Pt.558) 839;
Ezenwa v K.S.H.S.M.B. (2011) 9 NWLR (Pt.1251) 89 at
118.
A facet appearing in the answer to the question herein
raised is that the primary reliefs asked for by the
respondent are declaration on the variation of the contract
price and the validity of the contract and this brings into
operation the fact that a party who claims declaratory
reliefs has a duty to prove entitlement to the declaration
unassisted by the weakness in the opponent's case.
In this instance Exhibit M contains the respondent's dual
requests on upward review of the contract prices of LPFO
16
(201
9) LP
ELR-46
541(
SC)
supplied to the appellant's Kano and Ashaka storage tanks.
For LPFO supplied to Kano the respondent had requested
for a review from N59.50 to N69.50 per litre. For supplies
to Ashaka, the respondent offered to supply LPFO at
N75.00 per litre as against the contract price of N65.00 per
litre. Exhibit E is the reply to Exhibit M which is silent on
the request for upward review of supplies. No evidence was
adduced to show that appellant approved in writing the
respondent's request on the new contract price offer of
N69.50 per litre or any other price for supplies to Kano
storage tank.
The implication of what is on ground is that an offer of the
upward review remained unaccepted and so it cannot be
said that there was a valid contract in the absence of the
unconditional or unqualified acceptance of an offer in order
to have a valid contract on the offer to supply at N69.50 of
LPFO. Also there was no offer to supply at N75.00 per litre.
On a scenario such as the present, I rely on the following
cases on the need for there to be unqualified acceptance of
an offer in order to have a valid contract.
(1) OMEGA BANK PLC v O.B. C. LTD (2005) 8 NWLR
17
(201
9) LP
ELR-46
541(
SC)
(Pt.928) 547 at 575 Para A.
"In order to decide whether the parties have reached
an agreement, it is usual to inquire whether there has
been a definite offer by one party and an unqualified
acceptance of that offer by another.
It is the Law of contract that the letter of acceptance
must unqualifiedly accept the particular offer".
(2) BEST (NIG.) LTD V BLACKWOOD HODGE (NIG.)
LTD (2011) 5 NWLR (Pt.1239) 95 at 127 Para G. "An offer
must be unconditionally and unqualifiedly accepted.
Any addition to or subtraction from the terms of the
offer is an alteration to the terms and amounts to a
total rejection of the offer by the offeree".
(3) NNEJI v ZAKHEM NIG. LTD (2006) 12 NWLR
(Pt.994) 297 at 311 Para H.
"It is trite law that an offer must be accepted in order
to crystallize into a contract".
I agree with the appellant's learned counsel that it is trite
law that there are three essential ingredients of a valid
contract, an offer, an unqualified acceptance of that offer
and consideration.
(1) See SONA BREWERIES v SIR SHINA PETERS &
ANOR (2005) 1 NWLR (Pt.908) 478 at 488 where it was
held thus:-
"And before any contract or agreement can be said to
18
(201
9) LP
ELR-46
541(
SC)
come into existence, in law, there must be an
unmistaken and precise offer and unconditional
acceptance of the terms mutually agreed upon by the
parties. In other words the parties to the agreement
must be in consensus ad idem as regards the terms
and conditions freely and voluntarily agreed upon by
them. Both sides to the contract must be clear as to
what the more fundamental term and crucial terms of
the agreement connote before the agreement can be
said to come into legal effect".
Exhibit E which allegedly fixed N75.00 per litre as contract
price for supplies to appellant's Kano storage tank could
not have been a response to/acceptance of the offer/request
contained in Exhibit M for a reviewed contract price of
N69.50 per litre, and so the Court of Appeal was evidently
not right in its decision allowing the Cross-Appeal.
19
(201
9) LP
ELR-46
541(
SC)
In BEST (NIG.) LTD V BLACKWOOD HODGE (NIG.)
LTD (2011) 5 NWLR (Pt.1239) 95 at 127 Para G-H.
"An offer is impliedly rejected if the offeree instead of
accepting the original offer makes a counter-offer
which varies the terms proposed by the offeror. Hyde
v Wrench (1840) Bear. 334. The Legal effect of a
counter offer is to repudiate or discharge the original
offer so that it cannot subsequently be accepted by
the offeree".
See also Afrotec Technical Service (Nig.) Limited v M.I.A. &
Sons Limited (2000) 15 NWLR (Pt.692) 730.
The long and short of what is available is that no consensus
on the price increase for Kano supplies was on the table
and while there was an offer in that regard which was in
writing nothing is proffered as acceptance of that offer,
which translates to the decision of the Court of Appeal on
the said variation, Exhibit E not backed by evidence before
Court. Therefore this Issue 1 is resolved in favour of the
appellant to the effect that the Court below making the
award of N126,777,014.37 ignored the agreement of the
parties that the contract sum is subject to the deduction of
5% withholding tax which comes to
20
(201
9) LP
ELR-46
541(
SC)
#23,941,758.75 that should be deducted from the contract
price in order to arrive at the amount due to the
respondent.
ISSUE 2:
Were the learned Justices of the Court of Appeal right
or wrong in their decision that the learned trial judge
rightly rejected the respondent's letter dated 2nd
March, 2009 in evidence on the ground that the said
letter is privileged.
It was submitted by learned counsel for the appellant that
the decision of the Court below on the admissibility of the
unsigned documents is contrary to a plethora of authorities
which point to the direction that where a document is
unsigned, it is as useless as the paper on which it appears.
That the respondent is not one of the addressees of the mail
and the respondent cannot therefore rely on a document
not addressed to it as an admission. He cited Omega Bank
(Nig.) Plc v O.B.C. Ltd (2005) 8 NWLR (Pt.928) 547 at
576 etc.
He stated that the condition which needed be satisfied
before Exhibit L was tendered were not met as stipulated
under Section 84 of the Evidence Act, 2011. Also that
Exhibit L was not pleaded and so such a document is
21
(201
9) LP
ELR-46
541(
SC)
inadmissible and should be disregarded. He cited Akande
v Alaga (1988) 4 NWLR (Pt.86) 1 at 13; Oyediran v
Alebiosu (1992) 6 NWLR (Pt.249) 550 at 556; S.B.N. Plc v
CBN (2009) 6 NWLR (Pt.1137) 237 at 198; Jolayemi v
Olaoye (2004) 12 NWLR (Pt.887) 322 at 340 etc.
Learned counsel for the respondent responded by saying
that the letter of 2nd March, 2009 was made in the process
of reconciling the dispute between the parties and so the
lower Court was perfectly in order when it upheld the
decision of the trial Court on the said document. He cited
Ashibuogwu v Attorney General, Bendel State (1988) 1
SC 248.
The Court below in respect to this letter aforesaid stated
thus:-
"In pleading the document, the appellant averred in
its counter claim that a dispute arose between the
parties as to the exact quantity of LPFO supplied and
the quantity to be compensated for was not
ascertained and in the process of reconciliation, the
respondent admitted a shortfall of 660,000 litres in a
letter dated 2nd March, 2009 in the spirit of
reconciliation at a meeting chaired by a third party
and also in return for the appellant issuing it with a
22
(201
9) LP
ELR-46
541(
SC)
contract for the further supply of thirty million liters
of LPFO, and not because it acknowledged any actual
shortfall. Thus, the parties were agreed on the
pleadings and the evidence that the said letter was
written in the course of mediation of a dispute that
arose between the parties".
The objection against a document is to be raised only at the
point of tendering it in evidence not before such as at the
preliminary stage and that is what a pre-trial session is. I
place reliance on the following cases - Adejumo & Anor v
Governor of Lagos State (1970) LPELR - 99 (SC) page 7;
Etim & Ors v Ekpe & Anor (1983) LPELR - 1172 (SC) P.19.
That being the law it falls to reason that the letter dated
2nd March 2009 having been made in the process of
reconciling the dispute between the parties and so the
Court of Appeal was right to have upheld the decision of
the trial Court on the document.
The principle is anchored on the basis that at the point of
mediation, parties should speak freely all in the quest for a
peaceful resolution of the dispute. This principle of free
discussion will be seriously prejudiced or impaired if any
offer or admission made in the process of the negotiation
23
(201
9) LP
ELR-46
541(
SC)
could be given in evidence and used in support of a party's
case in Court afterwards where the negotiation breaks
down. Therefore when those negotiations are reduced in
writing they are usually marked "without prejudice" for the
avoidance of doubt and so remain inadmissible against the
parties or any of them in the ensuing suit in Court.
However, if the words "without prejudice" is not stated in
plain language, it does not detract from the fact that the
words are implied in the negotiations conducted in
documentary form or verbally. See Ashibuogwu v
Attorney General Bendel State (1988) 1 SC 248; (1988)
1 NWLR (Pt.69) 138 at 169 which case interpreted Section
198 of the Evidence Act which provisions are impari
materia with the old Evidence Act which interpreted the
law in accordance with the established cannon of
interpretation, reliance being placed on public policy in the
protection and service of public interest. This is all the
more germane at this current time where the trend is the
encouragement of mediation and resolution of disputes in
peaceful atmosphere without resorting to Court process.
All I have been I have been labouring to put across is that
the Court below was right in its findings and decision on
24
(201
9) LP
ELR-46
541(
SC)
this issue that the said document of 2nd March, 2009
remained outside and inadmissible as evidence at the trial
proper. This Issue is resolved against the Appellant.
ISSUE 3:
Whether the Court of Appeal rightly or wrongly
endorsed the admissibility of Exhibit L and the
attached internal memorandum of the appellant
notwithstanding non-compliance with the mandatory
conditions in Section 84 (1) of the Evidence Act on
admissibility of electronic mail/evidence and the non-
signing of attached internal memorandum.
Learned counsel for the appellant submitted that the letter
sought to be tendered by the appellant which contains
admission by the respondent is admissible and the letter
was pleaded and frontloaded in the appellant's list of
documents and there was no indication of an objection and
so respondent is estopped from objecting to the
admissibility subsequently. He cited Ude v Nwara (1993) 2
NWLR page 638 at 662-663; Okoro v Egbuoh (2006) 15
NWLR (Pt.1001) 23; Section 196 (1) of the Evidence
Act, 2011.
Responding, learned counsel for the respondent stated that
there was no pronouncement on the admissibility of
25
(201
9) LP
ELR-46
541(
SC)
Exhibit L by the Court of Appeal and so leave of Court
needed to be obtained before raising the issue. He cited
Idufueko v Pfizer Products Ltd (2014) 12 NWLR (Pt.1420)
96 at 1223; Guobadia v The State (2004) LPELR - 1344
page 11.
The angle taken by the appellant is that Exhibit L which
was tendered and admitted before the trial Court should
herein be discountenanced as the Court below ought to
have known that the document was computer generated
and did not meet the conditions provided for under Section
84 (4) of the Evidence Act. The resistance from the
respondent stems from the fact that this contention of the
appellant is belatedly brought up at this stage as it was not
an issue at the Court of Appeal and so cannot be taken up
here since it was not protested against in the Court below
and a pronouncement made upon it. Again for full measure
is that this Court cannot enter into the determination on
the issue, leave of Court having not been sought and
obtained in that regard being a fresh issue on appeal since
not being raised in the Court of Appeal though presented in
the trial Court. The implication is that
26
(201
9) LP
ELR-46
541(
SC)
after the trial Court's pronouncement or use thereof, the
matter was abandoned at the stage of the Court below and
so the issue rested for all time as there is no competence
for appeal from High Court to the Apex. See Idufueko v
Pfizer Products Ltd (2014) 12 NWLR (Pt.1420) 96 at 122;
Guobadia v The State (2004) LPELR - 1344 (SC) page 11;
Section 233 (1) of the 1999 Constitution; Aladejobi v
NBA (2013) 5-7 MJSC (Pt.11) 20 -207.
The appellant is urging this Court to discountenance
Exhibit L because it was unsigned but the appellant did not
take up the findings of the Lower Court which stated that
this case is of peculiar circumstance that cannot be
ignored.
The point has to be made that the requirement of signature
is made by the law to determine its origin and authenticity
with regard to its maker and so where certain situations
exist an unsigned document could be admissible as in this
instance where oral evidence clarifying the document and
its authorship as in the case at hand thereby rendering
such an unsigned document admissible. This unusual but
allowable exception to the general rule was well explained
in this Court in the case of Awolaja &
27
(201
9) LP
ELR-46
541(
SC)
Ors v Seatrade G.B.V. (2002) LPELR - 651 per Ayoola JSC
as follows:-
"A signed document though valuable as putting it
beyond peradventure what terms the parties have
agreed to is not essential to the existence of a
contract of affreightment. Where the immediate
parties to the agreement do not deny their agreement
or the existence of the contract of affreightment and
there is no doubt about their intention that they
should be bound, barring statutory provision to the
contrary, (and none has been cited by the defendants)
the existence of the contract cannot be impugned on
the ground that the document embodying the terms
they have agreed to was unsigned, unless the parties
have made such a condition of their being bound".
(Italics supplied).
The cognizibility of the origin of Exhibit L is underscored in
this instance where the appellant's sole witness stated
thus:-
"Exhibit L is dated 12/5/2008. Exhibit L was copied to
me and in the figures in attachment of Exhibit L.
6.384,469 litres according to dispute. I agree that
Exhibit L is confirming Exhibit F".
Clearly the parties are agreed on the said Exhibit L and
that it emanated from the appellant and so the current
28
(201
9) LP
ELR-46
541(
SC)
posture on the said Exhibit L by the appellant is strange
and so the Court below had its findings well supported by
evidence and for effect I shall quote excerpts therefrom
thus:-
"Counsel to the appellant submitted that the lower
Court ought not to have relied on Exhibit L because
the email was unsigned. This argument, with respect,
cannot hold water in the circumstances of this case
because the purchasing manager of the appellant at
the time, Dahiru Alhassan, one of the addressee on
the email and who testified as the witness of the
appellant, confirmed under cross examination, the
origin and authenticity of the email and of
attachment to it. He stated: " …Exhibit L is dated
12/5/2008. Exhibit L was copied to me and in the
figures in the attachment of Exhibit L 6.384.469 litres
according to dipping. I agree that Exhibit L is
confirming Exhibit F".
The finding of the Court of Appeal on the point is
unassailable and I am at one with it and so resolve this
issue against the Appellant.
ISSUE 4:
Whether learned justices of the Court of Appeal right
or wrong in the circumstances in the selective
29
(201
9) LP
ELR-46
541(
SC)
interpretation of the preamble and main part of
Exhibit K in the determination of quality of LPFO
supplied to appellant's Kano tank.
Learned Senior counsel for the appellant stated that it was
not open to the Court below to pick and choose which part
of Exhibit K to act upon and which part to reject and that a
document once admitted should be interpreted and
evaluated as a whole and not selectively. That where there
is a conflict between a recital/preamble which is merely an
introductory part of a document and the main part of the
document, the latter will always prevail over the former. He
referred to Walsh v Trevanon (1850) 15 QBD 733 at 751;
Re Moon EX P Dawes (1886) 17 QBD 275 at 286;
Management Corporation Strata Title Plan NO. 1933
v Liarg Huat Aluminium (2001) BLR 351.
That an admission amounting to estoppel ought to be
pleaded but same was not pleaded and so the Court below
was wrong to hold that appellant was estopped from
denying the quantity of LPFO which appellant allegedly
admitted as having been supplied to its Kano tank.
For the respondent, it was contended that there was no
conflict between the recital and the operative clause of
30
(201
9) LP
ELR-46
541(
SC)
Exhibit K for the lower Court to prefer the operative clause.
That the purported conflict which appellant is claiming has
not been established by it. He cited Okobia v Ajanya
(1998) LPELR - 2454 (SC).
This Court is herein faced with concurrent findings of fact
of the two Courts below that the respondent had supplied
6,384,469 litres of LPFO to the appellant which the
appellant urges the Court to depart from and the question
that is thrown up alongside that invitation of the appellant
is if this Court is armed with what would propel such an
upset of the earlier findings such as that if the findings
were perverse or bedeviled with error in substantive or
procedural law which if not corrected will lead to a
miscarriage of justice. Indeed there is a plethora of judicial
authorities to the effect that disturbing concurrent findings
of fact of two or more Courts below is not done lightly or
unadvisedly. That such an interference is usually guided to
avert a miscarriage of justice and not offhandedly as the
fancy takes the higher appellate Court. See Bankole v
Pelu (1991) 8 NWLR (Pt.211) 23; Sosanya v Onadeko &
Ors (2005) LPELR - 3105 (SC) pages 37-38 per Ejiwunmi
JSC;
31
(201
9) LP
ELR-46
541(
SC)
Oseni v Bajulu (2009) LPELR - 2796 (SC) 14; Lokoyi &
Ors v Olojo (1983) 8 SC 61.
In an attempt to impugn the finding of the Court of Appeal,
the appellant had alluded to a selective interpretation of
Exhibit K by the Lower Court. I shall go back to the record
and quote excerpts from the decision of the Court below
per Abiru JCA for full disclosure and thus:-
"Now, it is settled that in interpreting a document,
the document must be read as a whole, and not part
in isolation, and that the different parts of the
document must be interpreted in the light of the
whole document and a effort must be made to achieve
harmony amongst its different parts.... This principle
also applies where the document is part of documents
on same transaction. A holistic reading of Exhibit F,
and along with the contents of Exhibit L shows, with
respect, that counsel was only trying to be clever by
half. It is obvious from the two documents that the
respondent apparently claimed that it supplied 6.5
million liters of LPFO and what Exhibits L and F
explain is that the staff of the appellant only
confirmed receipt and acceptance of
32
(201
9) LP
ELR-46
541(
SC)
6,384,469 liters by the agreed dipping method and it
was the difference between the two figures the
documents said can only be paid for when the LPFO is
evacuated and it is shown to be 6.5 liters".
Abiru JCA went further to say:-
"The two documents, Exhibits L and F, were an
unequivocal admission by the appellant that the
quantity of the LPFO determined and confirmed in
accordance with the method agreed by the parties in
Exhibit A and for which it was liable to pay the
respondent was 6,384,469 liters. This was as at the
27th of May, 2007 the date of Exhibit F and by clause
7 of Exhibit A payment for the said 6,384,469 liters of
LPFO was due from the appellant to the respondent
on or before the 12th of June, 2008". (See pages
1084-1085 of the record).
I agree with learned counsel for the respondent that there
was no conflict between the recital and the operative
clause of Exhibit K and that the purported conflict which
the appellant is claiming has not been established by it and
the Court below dispelled such an illusion thus:-
"The above findings obviate any purported conflict
that might arise on this issue".
It has to be said that the Court below per Abiru JCA went to
33
(201
9) LP
ELR-46
541(
SC)
great length in the consideration of all that was before him
and I shall quote part of that judgment thus:-
"It was not in contest that appellant made some
payments to the respondent and these were the sum
of N139 Million on the 14th of July, 2008, the sum of
N120 Million on the 12th August, 2008, the sum of
N70 Million on the 1st November, 2008 and the sum
of N23,058,160.63 on the 6th April, 2009 making a
total of N352.058,160; tellers and statement of
account of the respondent in proof of the payments
were Exhibits G, H, I and J, it was not in contest that
on the 12th of August 2008 the parties executed a
LPFO supply Agreement which was stated to be an
addendum of the contract entered between the
parties on the 24th of July, 2008; Agreement was
Exhibit K".
From what was found and stated by the Court below there
clearly is no basis for the appellant's invitation to this Court
to interfere with the concurrent findings of facts of the two
lower Courts, the basis for such urging being absent as
they stemmed from what is borne out of the record and
where the balance of justice lay. This Issue is also resolved
against the Appellant.
34
(201
9) LP
ELR-46
541(
SC)
On the whole save for Issue 1 which went against the
Respondent and which did not affect the overall result of
the appeal, all other issues are favorably resolved for the
Respondent and which rendered the appeal unmeritorious
and so I dismiss the appeal as I affirm the decision of the
Court of Appeal and the consequential orders made therein.
Appeal dismissed with costs to the Respondent.
KUMAI BAYANG AKA'AHS, J.S.C: My learned brother,
Mary Peter-Odili J.S.C., made available to me in draft, the
leading judgement in this appeal just delivered and I am in
complete agreement with the conclusion reached that the
appeal lacks merit and should be dismissed.
There are concurrent findings of fact by the two lower
Courts that the respondent supplied 6,384, 469 litres of
LPFO to the appellant which is backed by Exhibits L and F.
Exhibits L and F were an unequivocal admission by the
appellant that the quantity of the LPFO determined and
confirmed in accordance with the method agreed by the
parties in Exhibit A and for which it was liable to pay the
respondent was #6,384,469 litres.
35
(201
9) LP
ELR-46
541(
SC)
An appellate Court will not readily interfere with the
concurrent findings of two or more Courts unless the
appellant can show that such findings are perverse and
would lead to miscarriage of justice if nothing is done. See:
Bankole v. Pelu (1991) 8 NWLR (Pt. 211) 23. The
appellant has not scaled the hurdle; consequently there is
no merit in the appeal.
It is on account of this and the more comprehensive
reasons contained in the judgement of my learned brother,
Mary Peter-Odili J.S.C., where all the other issues raised in
the appeal were resolved in favour of the respondent that
led me to dismiss the appeal. Consequently the appeal is
dismissed with N1,000,000.00 costs to the respondent.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-
EKUN, J.S.C.: My learned brother, MARY PETER-ODILI,
J.S.C. has exhaustively dealt with the issues in contention in
this appeal. The reasoning and conclusion reached
represent my view in this appeal.
This appeal is against concurrent findings of fact by the two
lower Courts. Apart from issue 1, which has been resolved
in its favour, it has failed to persuade me to interfere with
the the sound reasoning of the lower Court.
36
(201
9) LP
ELR-46
541(
SC)
I find no merit in the appeal and dismiss it accordingly. The
judgment of the lower Court is affirmed. I award costs in
the sum of 1 million in favour of the respondent.
AMIRU SANUSI, J.S.C.: I had the opportunity of reading
in draft form the Judgment just delivered by my learned
brother Mary Peter-Odili J.S.C.
All the salient issues raised and canvassed by learned
counsel for the parties were adequately and painstakingly
addressed by my noble lord before she arrived at the
conclusion dismissing the instant appeal for having no
substance or merit.
I am in accord with the reasoning and conclusion reached
and I also adopt them as mine. I have nothing useful to add
except to also dismiss the unmeritorious appeal. I abide by
the consequential orders made in the lead Judgment
including one on costs. Appeal dismissed
EJEMBI EKO, J.S.C.: I read in draft before now the
judgment just delivered in this appeal by my learned
brother, MARY UKAEGO PETER-ODILI, J.S.C. The
judgment represents my views on all the issues canvassed.
Having nothing, therefore, to add to the judgment,
37
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9) LP
ELR-46
541(
SC)
including the consequential orders made therein, I hereby
adopt it.
Appeal dismissed. The decision of the Court of Appeal
delivered on 28th January, 2016 in the appeal No,
CA/K/47/2014 is hereby affirmed.
38
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9) LP
ELR-46
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SC)
Appearances:
Prof Taiwo Osipitan, SAN with him, A.M. Kayode,Esq., I.O. Aniekwe, Esq., Adegoke Kayode, Esq.and C. I. Ofoegbunam For Appellant(s)
Usman Umar Fari, Esq. with him, AbubakarSuleiman, Esq. and M.N. Aliyu, Esq. ForRespondent(s)
(201
9) LP
ELR-46
541(
SC)