COBIL GLOBAL SERVICES LTD & ANOR v. MERCY INTERNATIONAL MISSION & ORS (2020)

COBIL GLOBAL SERVICES LTD & ANOR v. MERCY INTERNATIONAL MISSION & ORS

(2020)LCN/14333(CA)

In The Court Of Appeal

(ADO-EKITI JUDICIAL DIVISION)

On Tuesday, June 09, 2020

CA/EK/92/2018

Before Our Lordships:

Theresa Ngolika Orji-Abadua Justice of the Court of Appeal

Fatima Omoro Akinbami Justice of the Court of Appeal

Paul Obi Elechi Justice of the Court of Appeal

Between

1) COBIL GLOBAL SERVICES LTD 2) MR. BENJAMIN O. ILESANMI APPELANT(S)

And

1) MERCY INTERNATIONAL MISSION 2) PRINCE ADEKUNLE AGUNBIADE 3) JET CONSULT NIGERIA LIMITED RESPONDENT(S)

RATIO

WHETHER OR NOT PARTIES TO THE CONTRACT ARE BOUND BY THE TERMS AND OBLIGATIONS IN THEIR AGREEMENT

The parties to the contract are bound by the terms and obligations contained in their agreement. The Supreme Court in the case of Okechukwu v Onuorah (2000) 12 SC PT104 @109 held:-
“Where parties agree in a solemn contract they are supposed to fulfill all the conditions therein faithfully and honestly.”
A contract simply means an agreement between two or more parties which creates reciprocal legal obligation or obligations to do or not to do a particular thing. For a valid contract to be formed, there must be mutuality of purpose and intention. The meeting of minds of the contracting parties is the most crucial and overriding factor or determinant in the law of contract. See Yashe v. Umar (2003) 13 NWLR (Pt 838) 465 at 483-484 paragraphs H-B; Orient Bank (Nig) Plc. v. Bilante Inter’l Ltd (1997) 8 NWLR (Pt. 515) 37 at 76.
The Courts can only read meaning into the terms of the contract. See Kaydee Ventures Ltd v. The Honourable Minister FCT & Ors. LPELR-1681 where the Court held:
“It is now settled Law that in matters of contract as in the instant case, in which the terms and conditions of contract are embodied in a written document, the parties and the Court will not be allowed to read into the contract extraneous terms on which they reached no agreement as the Court cannot make a contract for the parties.”
The primary duty of the Court in the circumstance is limited to interpretation and enforcement of the terms of the contract as agreed by the parties thereto. See Koiki v. Magnusson (1999) 8 NWLR (Pt. 615) pg. 492, International Textile Ind. (Nig) Ltd v. Aderemi (1999) 8 NWLR (Pt. 614) pg.268.
“It must be reiterated here that the Court must treat as sacrosanct the terms of an agreement freely entered into by the parties.” PER AKINBAMI, J.C.A.

MEANING OF A “BREACH OF CONTRACT”

According to the Supreme Court in PANBISBILDER (NIG) LTD. V. FIRST BANk(NIG.) LTD. (2000) 1 SC 71, a breach of contract means the party has acted contrary to the terms of the contract either by non-performance of a term or performing it not in accordance with its terms.
In an action for breach of contract, it is necessary for a Plaintiff to plead facts showing the existence and subsistence of a valid contract as well as its express or implied terms. It is also necessary to show what or which of its terms was breached and in what manner, i.e. particulars of breach.
A party seeking to enforce rights under a contract must show that all that was needed to be fulfilled by it had been fully performed. All such terms requiring to be performed are conditions precedent to the enforcement of any right there under.
Therefore the onus is on the party who asserts breach of contract to prove same before the burden will shift to the other party. In the instant appeal, the Appellants had failed to discharge the primary burden of proof that the Respondents had breached any of the terms of any of the contracts that appear to have been made by the parties. See EZENWA V. EKONG (1999) 11 NWLR (Pt. 625) 55. PER AKINBAMI, J.C.A.

FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): The appeal herein is against the decision of A. A. Adeleye, J., of the Ekiti State High Court sitting at ldo-Ekiti, which was delivered on the 25th day of January, 2018.

The Appellants, who were the Plaintiffs at the lower Court, claimed before that Court in their Writ of Summons and Statement of Claim, both filed on the 23rd March , 2017 the following reliefs: –
A.) A declaration order of this Honorable Court that the wrongful termination of contract between the claimants and the first and second defendants contained in the letter of termination of contract dated 29th October, 2016, in respect of the building project at Osi-Ekiti in Ekiti State by the first and second defendants without any substantial reason, should be set aside and declared null and void.
B.) A declaration order of this Honorable Court that the claimants have strictly complied with the terms and conditions of contract between the first and second defendants and claimants in line with the letter of Award of the contract and Article of Agreement as signed by them to the extent of work done and

carried out at the site by the claimants and having been satisfactorily certified by the third defendant as the appointed consultant of the first and second defendants to be good and correct project.
C.) A declaration order of this Honorable Court that the materials sand, stone dust, hard core, planks, blinded lintel reinforcement, four tons of iron rods, two GP tanks of 2,500 liters of water were left at the site, overlapping blinded column reinforcement, and plumbing materials in large quantities, are some of the materials purchased by the claimants, and which they have not been monitoring reimbursed by the first and second defendants as at the period of time they were left at the site of the contract project at Osi Ekiti by them when said contract was wrongfully terminated by the first and second defendants without any justifiable reason.
(D.) An order of this Honorable Court for the payment of the sum of N25,000,000.00 (Twenty Five Million Naira) to the Claimants as the first and second defendants, being the total sum of money incurred and expended on the development of the project contract at Osi Ekiti, by the Claimants, as the contractor, to

the present stage of development as reflected in the available evidence.
E.) N100,000,000.00 (One Hundred Million Naira Only) as the damages against the first and second defendants for the unlawful and wrongful termination of the contract project at Osi-Ekiti awarded to the Claimants, without any justifiable reason to do so, and without proper recourse to the reports and comments of the third defendant as the consultant appointed by them in respect of the project.
F.) AN ORDER OF PERPETUAL INJUNCTION of this Honorable Court restraining the defendants, their agents, servants, staff, workers, relations, privies and successors in title from contracting, appointing, delegating and commissioning any contractor, bricklayers, workers and anybody whatsoever to commence work at the project site at Osi-Ekiti without the prior knowledge and consent of the Claimants and pending the final determination of this case before this Honorable Court.

In reaction, the 1st and 2nd Defendants filed a six paragraph Statement of defence, dated the 18th day of April, 2017, and filed on the same day, wherein the 1st and 2nd defendants denied the allegation of facts

contained in the Statement of Claim. The Claimants, subsequently filed a Reply to the Statement of defence of the 1st and 2nd defendants. The process is dated the 5th of October, 2017, and filed on the 12th day of October, 2017.

The 3rd defendant did not file a statement of defence. The 3rd defendant did not participate in the trial.
Pleadings filed, and exchanged, the matter proceeded for trial.

In summary, the Claimants’s case is that parties to the contract entered into an agreement. The terms and conditions of the contract are stated on the letter of award, and Articles of Agreement. The claimant is to construct a building, that shall serve as guest house for the 1st defendant. The 3rd Respondent is the consultant to the project. Work commenced on construction of the building at Osi Ekiti. The first phase of the job was completed. The Appellants alleged that the defendants unilaterally terminated the contract without any justifiable reason. Hence, the institution of this suit.

The Respondents, on the other hand in their defence, admitted termination of the contract, for the reason of breach of a term of the contract to wit:

substandard materials used by the Appellants, and workmanship of the Appellants, which they found to be unsatisfactory.

In the course of trial, two witnesses led evidence to establish the case of the Appellants. Busayo Awe led evidence as Appellants’ witness 1 (CW1), while Benjamin Oludare llesanmi led evidence as Appellants’ witness 2 (CW2). Agunbiade Babatunde Oladele was the lone witness for the Respondents. He gave testimony as defence witness 1(DW1). Exhibits A-N were tendered and admitted through the Appellants’ witnesses CW1 and CW2, while Exhibits P-R were tendered and admitted through DW1.

At the close of evidence by the witnesses, counsel on both sides adopted their final written addresses filed and exchanged, as their final submission.

In a reserved and considered judgment, the learned trial Judge held that the Respondents had successfully defeated the case of the Appellants who were not entitled to any of the six substantive reliefs claimed. The claims were therefore dismissed for lack of merit.

The Appellants are unhappy with the decision. Being aggrieved they have appealed to this Court. Their

notice of appeal dated 13th June and filed on the 11th July, 2018 contains five grounds of appeal. Parties filed and exchanged briefs of argument.

At page 3 paragraph 3.1 of the Appellant’s brief of argument, the following issues are formulated for the determination of the appeal:-
“1. Whether from the pleadings and available evidence on record, the Appellants have not been given clearance to proceed to the second stage of the contract by the third Respondent, before the alleged breach of the condition precedent that led to the termination of the project contract between the Appellants and Respondents. (Grounds 1, 2, 3, and 4).
2. With regard to the pleadings and available evidence on records, whether the learned Trial Judge has properly evaluated evidence vis a vis documents tendered, and admitted in this case before the trial court. (Ground 5).”

The above issues were formulated from the grounds of appeal filed and relied upon by the appellants. For ease of reference, I reproduce below the grounds of appeal referred to above shorn particulars of error:
Ground One
The learned trial judge erred in law when he stated

in his judgment, and held that the Appellants did not fulfill the condition precedent for payment, to proceed with the contract, contrary to the letters of the documentary evidence, the Appellants executed shoddy job, utilized inferior materials, and engaged services of incompetent workmen, and without giving consideration to the whole contents of each of the documents tendered as Exhibits, but only gave consideration to the parts of Exhibit B and P1-3 that are favorable to his judgment to the exclusion of other parts. And this has occasioned miscarriage of justice to the Appellants.
Ground Two
The learned trial Judge erred in law when he held that; “ the first and second defendants through their Solicitors letter, drew attention of the Claimants to the breach of their obligations to the contract, but the claimants did not lead evidence to show that the defects were remedied within reasonable time” when there are available evidence on record, that showed that the defects as pointed out by the third Respondent in the course of the building construction, were corrected and remedied by the Appellants. And this has occasioned miscarriage of

justice to the Appellants.
Ground Three
The learned trial judge erred in law when he held: “that non fulfillment of obligation on the part of the claimants to deliver high quality work, before payment can be effected by the first and second defendants, as a fundamental breach of terms of the contract” and therefore held that the letter of termination of contract dated 29th October, 2016, excusing the Appellants from the building project at Osi-Ekiti, is with reasons and so, it is valid, despite the evidence on record in support of the Appellants. And this has occasioned miscarriage of justice to the Appellants.
Ground Four
The learned trial judge erred in law when he held that there was no evidence before him, that the Appellants were advised to proceed to the second stage of the project, and that the Appellants had not been given a clean bill on the job executed by the third Respondent, despite the available document, and evidence on record that the Appellants should be allowed to proceed to the second stage of the contract project. And this has occasioned a miscarriage of justice to the Appellants.
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Ground Five
The learned trial judge erred in law when he failed to properly evaluate the evidence of the parties, and their witnesses in line with the pleadings, stated facts and documentary evidence as placed before him, which therefore led the trial judge to have refused to grant the reliefs of the appellants as claimed before the Court. And this has occasioned a miscarriage for justice to the Appellants.

The 1st and 2nd Respondents on their part distilled a lone issue for the determination of this appeal thus :-
“Whether, upon the totality of evidence led at the trial, the trial Court was right in dismissing the suit as lacking in merit.”

At the hearing of the appeal respective learned counsel identified, adopted and relied on their briefs of argument. While learned counsel for the Appellants urged on the Court to allow this appeal, set aside the judgment of the trial Court and proceed to give judgment as per their claims, learned counsel for the Respondents urged on the Court to dismiss the appeal and affirm the judgment of the trial Court.

Having read through the grounds of appeal, and the submissions of both parties, I am of the

firm view that the Appellants two issues would adequately determine this appeal.

In arguing issue 1, learned counsel for Appellants referred to Appellants claim before the trial Court, which was terminated by the Respondents. Learned counsel pointed out the fact that the letter of contract award dated 27th May, 2016 tendered and admitted in evidence as Exhibit D, contained conditions and terms of the contract in respect of the Guest House Building in Osi-Ekiti. Whilst Exhibit E, is the copy of the Article of Agreement entered into by the parties in respect of the contract. These two documents formed the basis of the existence of the project contract at Osi-Ekiti, between the Appellants and the Respondents. Counsel contended that the parties are bound by the terms and conditions as spelt out in the contract document and agreement. In support of the assertion counsel cited the case of Sergrins Onykwelu v Elf Petroleum Nigeria LTD (2009) ALL FWLR (Pt 469)426 at 438 paras D-E; Maryam lsiyaku v Dr. Zwingina (2001) FWLR (pt. 72) 2096. For emphasis counsel asserted that ltem 4 in Exhibit D, contains statement that reads “The client will only pay for

high quality work as approved by the consultant Architect.” On Exhibit B, counsel submitted that it is a site instructional book created by the Appellants to enable the third (3rd) Respondent appraise the extent and quality of job to be done, in respect of the project contract. Counsel submitted that apart from the area of defect pointed out and rectified, there is nowhere in the documents admitted as Exhibits, that it was expressly stated by the third Respondent that the Appellants should not be allowed to continue with the contract project, but rather in one of the letters from the third Respondent to the first and second Respondents admitted as Exhibit P 1-3 series. Counsel pointed out that the trial Court ignored this fact and went ahead to hold at page 340 of the record of appeal, that there is no evidence before the Court, advising the Appellants to proceed to the 2nd stage of the project. Consequently the Appellants have not been given a clean bill on the job executed. Learned counsel therefore submitted that the letter of 25th, July 2016, that emanated from the 3rd respondent as the consultant architect whose approval must be taken into the

consideration before payment can be made by the first and second Respondents, is therefore sufficient to the effect that the first and second Respondents were advised to allow the Appellants to proceed to the stage two of the contract. It was counsel’s submission that the third Respondent having not recommended the termination of the contract, the first and second Respondents in this appeal cannot therefore unilaterally do so without having proper recourse to the terms and conditions of the contract as expressly stated in Exhibits D and E. The guiding principles of a valid contract were elucidated by learned counsel. He cited the case of Sergrins Onykwelu v Elf Petroleum Nig Ltd (2009) ALL FWLR (pt. 469)426 at 438 paras D-E.

The trial judge’s meaning and interpretation of the parties intention as expressly stated in Exhibits D and E were attacked by learned counsel. He cited the case of Nika Fishing Co. LTD V Lavina Corporation (2008) 16 NWLR (Pt 1114) 509.

In his further submissions counsel contended that a contract of agreement should be given plain, clear and obvious meaning. He cited the case of Oduye v Nigeria Airways Ltd 1987 3 NWLR Pt

565 126; Amizu v Nzeribe 1989 4 NWLR Pt 118 755.

Learned counsel urged this Court to hold that the appellants have not breached any of the conditions precedent to the fulfillment of the contract in respect of the Guest House Building at Osi-Ekiti to have warranted the unjustifiable termination of same, by the first and second Respondents.

Issue 2
“With regards to the pleadings and available evidence on record, whether the learned trial judge has properly evaluated evidence vis a vis documents tendered and admitted in this case before the trial Court.”

In arguing this lssue 2, Appellants’s counsel submitted that the trial Court failed to give effective consideration to the facts and documents presented before the Court, and before arriving at his judgment given in favour of the Respondents. But that the learned trial judge went ahead to pick and choose the pieces of evidence to believe, and that will be favorable to the case of the Respondents. What is expected of a trial judge in making proper findings was described by learned counsel referring to the cases of Minister v C. O. P 2016 ALL FWLR Pt 841 1521; WOLUCHEM V GUDI

1981 5SC 291. Counsel reiterated the fact that the trial judge did not properly evaluate the pieces of evidence that was presented before he arrived at the judgment delivered against the Appellants. In further submissions, counsel referred to Exhibit B, the site instruction book that contained the comments of the third Respondent as the Consultant Architect appointed by the first and second respondents in respect of the project contract. He must approve the job done by the Appellants, before payment can be released or paid. Therefore the instructions of the Consultant Architect is very germane and relevant to the construction of the Guest House Building at Osi-Ekiti.

In his further submissions, counsel referred to page 240 of the record of appeal, stating that the position of the trial Court therein ran contrary to the recommendation of the third Respondent as stated in Exhibit P 1-3 series made in the letter of 25th July, 2016. Also that on page 235 of the record of appeal, the Court placed premium on the contents of Exhibits Q and R, and gave consideration and analysis of these Exhibits, despite the available evidence on record that suggested, and

pointed to the fact that the two Exhibits were surreptitiously procured and that the statements and facts that formed the contents of the Exhibits were fabricated.

Counsel attacked the contents of Exhibits D and E, as not containing the employment of an independent structural engineer in respect of the project contract for the construction of the Guest House Building at Osi-Ekiti. The date on Exhibits Q and R were queried by counsel, who further observed that the exhibits contained some irregularities which definitely have cast doubt on the said documents. He therefore contended that the judgment of the trial Court would have been in favour of the Appellants if the trial judge had not placed premium and reliance on the evidence that favour the Respondents.

The complaint in this case is against non-evaluation or appraisal of the evidence tendered before the trial Court, therefore counsel submitted that this Court is in a good position just like the trial Court in this case, to carry out the evaluation, and appraisal of the evidence in respect of this case. He cited the case of lgbeke v Emordi (2010) 11 NWLR (Pt 1204) 1 at 7.

This Court was also

urged by counsel to evoke the provisions of Section 15 of the Court of Appeal Act. He cited the case of Verner v Federal University of Technology, Yola (2017) LPELR-43001 (CA) pages 30-32 paras A-A.

The 1st and 2nd Respondents on their part distilled a lone issue for determination thus:- “Whether upon the totality of evidence led at the trial, the trial Court was right in dismissing the suit as lacking in merit.”

On behalf of the 1st and 2nd Respondents, counsel asked the following questions :-
A. The role of the 3rd Respondent under the contract between the 1st Appellant and the 1st Respondent.
B. Whether the 1st Respondent was within its rights to terminate the contract or, put differently, whether the Appellants were not able to discharge the legal burden of proving wrongful termination of the contract.
C. Whether the claimants have established any damages as required by law, or entitlement to the declarations and injunction sought.

In answering the questions posed, counsel referred to the pleadings, Grounds 3 and 4, paragraphs 5.09 of the Appellants Brief of Argument, as well as paragraphs 5.24-5.28 of the

Appellants’ Final Written Address on pages 197-200 of the record of appeal. Counsel contended that Appellants have consistently made heavy weather of the allegation that, the 3rd Respondent approved the quality of 1st Appellant’s works under the contract and approved the 1st Appellant’s transition/progression to Stage 2 of the contract.

Against the Appellants’ above argument, counsel proffered 3 submissions namely:-
A. That the evidence before the trial Court does not bear out the allegation that the 3rd Respondent was comfortable with the quality of work undertaken by the 1st Appellant. The lower Court rightly found as a fact that Exhibit B (which was laden with recriminations and admonitions from the 3rd Respondent to the 1st Appellant, as early as the 3rd week of the contract) and P1-3 are positive proof that the 3rd Respondent had a running battle with the 1st Appellant, all through the execution of Stage 1 of the contract with respect to the quality of the materials used, and the workmanship deployed under the contract. And that the trial Court rightly, took exhibits together with Exhibit N as evidence that the 1st

Appellant had done a shoddy job under the contract.
B. The 3rd Respondent did not approve that the 1st Appellant, should transit to Stage 2 of the contract. There is no evidence of such approval ever produced before the trial Court. But rather, what was relied upon as evidence of approval was the 3rd Respondent’s letter to the 1st Respondent, dated 25th day of July, 2016, exhibit (P2)
C. Thirdly, critical and without prejudice to the two preceding sub-paragraphs, it was not within the remit of the 3rd Respondent to make any decision under the contract. Counsel reiterated the fact that, even if the Appellants had succeeded in proving, that the 3rd Respondent had approved of 1st Appellant’s works under the contract, such approval or the lack of it had little, if anything, to do with the sustenance or termination of the contract between the 1st Appellant and the 1st Respondent.

Counsel referred to the two documents containing the terms of the contract between the 1st Appellant and the 1st Respondent i.e. Exhibits D and E, the only clause relating to the function of the 1st Respondent’s consultant i.e the 3rd Respondent under the

contract is contained in Exhibit D.

It was submitted by counsel that the 3rd Respondent’s relevance to the contract between the 1st Appellant and 1st Respondent was to recommend/advice the 1st Respondent whenever any payments were due to the 1st Appellant under the contract, and no more. Counsel contended that, neither the parties nor the Court can read terms into a contract which was not included by the parties. He cited the case of Koiki v Magnusson (1999) 8 NWLR (Pt 615) 492; Minaj Holdings Limited v AMCON (2015) LPELR-24650 (CA) 27; Kaydee Ventures LTD V The Honorable Minister, FCT (2010)LPELR 1681 (SC).

Counsel contended that the position/argument that the sustenance or otherwise of the contract was dependent upon the 3rd Respondent’s pleasure was grossly misconceived. But that unfortunately, the Appellants have tenaciously abided by the misapprehension of the import and purport of Exhibit D, as meaning that the 3rd Respondent was the approving authority under the contract. But that the Appellants have failed to take cognizance of the phrase “shall only pay for”, which qualified the duty of the consultant Architect

under the contract. That Section 167 of the Evidence Act, 2011, provides that Courts shall presume “the common course of natural events, human conduct, public and private business…”. He cited the case of Ogbuanyinya v Okudo (1990) LPELR 2294 (SC) @ 34 A-E. Counsel put it simply that the role of the 3rd Respondent under the contract was only to verify the quality and quantum of work done under the contract and advice the 1st Respondent accordingly, in order for the 1st Respondent to pay the 1st Appellant its due. It was reiterated by counsel that, as there was no evidence before the trial Court of any request or recommendation for payment by the 3rd Respondent during the life of the contract, the 3rd Respondent had no relevance to the facts founding this suit.

On question B above, counsel submitted that the 1st Respondent was within its rights in terminating the contract, and the Appellants failed to discharge the legal and evidential burden to prove that the termination was wrongful. He cited the case of United Calabar Co v Elder Dempster Ltd (1972) 8-9 SC 31; Commissioner for Works, Benue v Devcon Development Consultant (1988)

LPELR-884(SC). It was submitted by counsel that, that poor performance is in itself a breach of an executory contract. This is more so, where high quality was made an express and fundamental term of the contract as per Exhibit D, where it was stated that the 1st Respondent will only pay for “high quality work.” Therefore a contract can be terminated for any of the acts which constitute a breach of that contract. Counsel cited the case of Commissioner for Works, Benue v Devcon (supra) page 25.

The evidence of the 1st Appellant’s poor performance of the contract is overwhelming. These include the following:
A. The entries in Exhibit B of 1/7/2016 (at No 5 thereof) and the entries of 14/7/2016 ( at No’s 1, 2,3, & 5 thereof) where the 1st Appellant was serially admonished concerning the quality of material and workmanship.
B. Exhibits P1-3, which show that the contract was problematic and there were issues with the quality of materials and workmen. Exhibits P2 and P3 which show that the 1st Appellant had to sack some locally sourced (and therefore cheap) artisans owing to the 1st Respondent’s complaints.

The damning observations and recommendations in Exhibit Q, especially at pages 2 & 3 thereat, which confirmed the poor quality of the materials, android workmanship, and which recommended the employment of “a competent contractor with focus on methods of construction, good finishing and quality materials” -a nice way of saying that the 1st Appellant lacked those attributes.
D. The fact that the 1st Appellant could not even employ a qualified engineer to supervise a N62 million project, but used a “qualified building technician” as the most senior technical person on the project. This confirms the allegation of poor workmanship and cutting corners.
E. The Appellant’s undertaking in Exhibit N to “henceforth“ use “best of the best” workmen on the project, as if that was not what was contracted in the first place.
F. The uncontroverted evidence of DW1 (in paragraph 15 of his Statement on Oath, at page 86, of the record of appeal) that the 1st Appellant was using laterite to mix concrete in order to cut corners.

The Appellants have argued (at paragraph 5.09 of their Brief) that the

“power” to commission an independent technical audit of the job done by the 1st Appellant, was not donated under the contract, and that neither the Appellants nor the 3rd Respondent were present during the inspection for the technical audit. Counsel submitted that these arguments have no basis in law. That no statute, principle of law or doctrine of equity forbade the 1st Respondent from finding out, whether a contract to which it is party is well executed. Counsel further submitted that the contract between the Appellant, and the 1st Respondent did not nominate the 3rd Respondent or anybody as consultant to the project. The 1st Respondent appointed the 3rd Respondent, and could equally appoint anybody else in its place. That the 1st Respondent is not under obligation to invite the 1st Appellant to the inspection to the inspection as what was to be investigated was what was on ground at the contract site, and did not require any input from the 1st Appellant.

Counsel submitted that in the spirit of fairness, the 1st Respondent, vide Exhibit M2 requested the 1st Appellant to commission its own independent technical evaluation, but the

Appellants failed to take advantage. And as rightly held by the trial judge, the Appellants thereby lost an opportunity to disprove the expert opinion as to poor performance.

The learned counsel in his further submission contended that 1st Respondent having elected to terminate the contract, did what was required of it by law. The 1st Appellant was informed of the termination, and the reasons for the termination. He cited the case of Warner & Warner lnt. Ltd v FHA (1993) LPELR-3471 (SC) 56. The Respondent cannot therefore be faulted in terminating the contract. The counsel referred to Question(c) above that the reliefs sought by the Appellants were not grantable and were rightly dismissed by the trial Court. He referred to reliefs A, B, and C which seek declaratory reliefs. He cited the case of Govt of Gongola State v Turkur (1989) 4 NWLR (Pt. 117) 592. The law is trite that declaratory orders are at the discretion of the Court, which discretion is to be exercised judicially and judiciously. He cited Odusole v Mil. Govt Ogun State (2002) 10 NWLR (Pt 776) 556, and OBI v INEC (2007) 7 SC 268 at 299. The prayers for declaration could only have

succeeded if the Appellants were able to show the termination of the contract was wrongful. Counsel reiterated the fact the Appellants failed in that regard, and all their prayers for declarations were also bound to fail.

Relief D sought by the Appellants was for special damages. Counsel submitted that the law is trite that special damages must be specifically pleaded, and strictly proved. He cited the case of B. B Apugo & Sons LTD V OHMB (2016) LPELR-40598(SC) 60-61 D-A. Counsel contended that, it is clear, both from the pleadings and the evidence led that the alleged special damages in claim D of the Claim were never specifically pleaded nor strictly proved. They must therefore fail.

On relief E, general damages is also dependent on the claimants proving that the termination of the contract by the 1st Respondent was wrong. Counsel however submitted that the Appellants failed to discharge that burden. A claimant has the legal burden of proving his claim, and that burden never shifts. He cited the case of Nwavu v Okoye (2008)LPELR-2116 (SC) 43 E-G.

Counsel contended that the claim for perpetual injunction (Relief F) is baseless. It goes

against all known principles of law, and was rightly dismissed.

Consequent upon the foregoing, counsel submitted that the sole issue for determination must be resolved in favour of the Respondents against the Appellants.

Resolution of issues
The fulcrum of this appeal, is the termination of the construction contract between the Appellants and Respondents, by the 1st Respondent. The terms and conditions of the contract are stated in the letter of award, and Articles of Agreement.

The Appellants’ case was that the 1st Respondent awarded a contract to the 1st Appellant for the construction of a state of the art guest house at Osi Ekiti ( vide Exhibits D and E), which the 1st Respondent terminated for poor execution, and breach of contract after the 1st of 4 stages, hence the claims.

The letter of Award of contract Exhibit D spelt out terms and conditions in respect of the contract and noted particularly that “The client will only pay for high quality work as approved by the consultant architect.”

The parties to the contract are bound by the terms and obligations contained in their agreement. The Supreme Court in the

case of Okechukwu v Onuorah (2000) 12 SC PT104 @109 held:-
“Where parties agree in a solemn contract they are supposed to fulfill all the conditions therein faithfully and honestly.”
A contract simply means an agreement between two or more parties which creates reciprocal legal obligation or obligations to do or not to do a particular thing. For a valid contract to be formed, there must be mutuality of purpose and intention. The meeting of minds of the contracting parties is the most crucial and overriding factor or determinant in the law of contract. See Yashe v. Umar (2003) 13 NWLR (Pt 838) 465 at 483-484 paragraphs H-B; Orient Bank (Nig) Plc. v. Bilante Inter’l Ltd (1997) 8 NWLR (Pt. 515) 37 at 76.
The Courts can only read meaning into the terms of the contract. See Kaydee Ventures Ltd v. The Honourable Minister FCT & Ors. LPELR-1681 where the Court held:
“It is now settled Law that in matters of contract as in the instant case, in which the terms and conditions of contract are embodied in a written document, the parties and the Court will not be allowed to read into the contract extraneous terms on which they reached no

agreement as the Court cannot make a contract for the parties.”
The primary duty of the Court in the circumstance is limited to interpretation and enforcement of the terms of the contract as agreed by the parties thereto. See Koiki v. Magnusson (1999) 8 NWLR (Pt. 615) pg. 492, International Textile Ind. (Nig) Ltd v. Aderemi (1999) 8 NWLR (Pt. 614) pg.268.
“It must be reiterated here that the Court must treat as sacrosanct the terms of an agreement freely entered into by the parties.”
This is because parties to a contract enjoy their freedom to contract on their own terms so long as same is lawful. The terms of contract between parties are clothed with some degree of sanctity and if any question should arise with regard to the contract, the terms in any document which constitute the contract are arguably the guide to its interpretation. When parties enter into a contract they are bound by the terms of the contract as set out by them. It is not the business of the Court to rewrite a contract for the parties. See BFI Group of Company v. BPE (2012) LPELR-9339, Afrotech Services (Nig) Ltd v. M.A. and Sons Ltd (2000) 15 NWLR (Pt. 692) pg.730.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The learned trial judge on page 231 of the record of appeal held :-
“The plain and unambiguous reading and meaning of the contents of Exhibits B, D, P1-3 series is that by the contents of Exhibit B, P1-3 series, the claimants did not fulfill the condition precedent for payment, to proceed with the contract. Contrary to the letters of the documentary evidence, the claimants executed shoddy job, utilized inferior materials, and engaged services of incompetent workmen.
It is therefore a material breach of the claimants’ obligation by not using high quality materials, condemnable work out put, and by engagement of incompetent workmen.”

The learned trial judge on page 232 evaluated the evidence before the Court by stating as follows:- “the 1st defendant, vide Exhibit F, notified the claimants of the breach of the terms of the contract. The claimants were given the opportunity to continue with the job, based on fulfillment of certain conditions. Exhibit F reads thus:
“The Board of Trustees

of MIM Nigeria and USA wish to express our displeasure and disappointment at the poor execution of the first stage of the village of Hope Guest House awarded to your company. Investigations conducted by the investigation team set up by us confirmed that standard of materials and labour used to execute the first stage was below standard which had resulted to a great extent poor job delivery by your company to the disadvantage of our organization.
Reminding you of a statement in the contract agreement which states that “the client will ONLY pay for High Quality work”; And your reply to this agreement says “We in COBIL GLOBAL SERVICES LTD promised to give you quality services within the time by His Grace.” But the work executed by your company is contrary to your promise.

On page 233 of the record of appeal, the learned trial judge stated as follows:-
“Finally for reasons stated above, MIM have decided to revoke the contract, except the following conditions are strictly met:-
1. Letter of apology for poor work done at the first stage, and letter of commitment to quality work according to agreement henceforth.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Letter from a guarantor who is reputable in the building industry assuring us of quality work according to specification forthwith.
3. Refund of 10% of the total sum paid to you to execute the first stage of MIM.”

In reaction to the conditions demanded by the 1st defendant that should be met by the claimants, the claimants wrote Exhibit G and N, while Exhibit H is copy of letter of guarantee demanded for.

In Exhibit G, the claimants expressed their appreciation to the 1st defendant for the opportunity afforded them in “defending the job done so far on Mercy International Mission village of hope project.”

The claimants, in Exhibit G, referred to the contents of Exhibit F wherein the board “expressed displeasure and disappointment as regard the first stage of the Guest House Construction project.”
In paragraph 5 of Exhibit G the claimants stated:
“We wish to sincerely apologize for one or two areas of misunderstanding, which the consultant, and our team have successfully addressed.”

The learned trial judge accepted Exhibits H, and N, additional documentary evidence to the effect

that the claimant admitted having executed substandard job, and utilization of low quality materials. Exhibit M1 dated the 25th day of November, 2016 is a reminder letter to the 1st and 2nd Respondents solicitor. Exhibit M2, also dated the 25th of November, 2016, is a copy of the 1st and defendants’ solicitor’s letter addressed to the claimants 2nd defendants solicitor, letter addressed to the claimants’ solicitor, wherein the defendants resolution to terminate the contract is reiterated. The 2nd & 3rd Respondents pleaded and led evidence to the effect that:-
A. The 1st Appellant did a shoddy job, with respect to the execution of Stage 1 of the contract. It was thus not permitted to proceed to Stage 2 of the contract.
B. The 1st Respondent gave the 1st Appellant opportunities to remedy the breaches, which were not taken by the 1st Appellant.
C. The shoddy execution of the contract was corroborated by the scientific findings of a firm of structural engineers, which the 1st respondent commissioned to evaluate the quality of the works done by the 1st Appellant. The 1st Respondent also gave the 1st Appellant the opportunity to

provide an independent evaluation of the quality of its work under the contract, which was not taken.

There is evidence before the trial Court that the Appellants were in breach of the contract between them and the Respondents. The complaint of the Appellants is about breach of contract. According to the Supreme Court in PANBISBILDER (NIG) LTD. V. FIRST BANk(NIG.) LTD. (2000) 1 SC 71, a breach of contract means the party has acted contrary to the terms of the contract either by non-performance of a term or performing it not in accordance with its terms.
In an action for breach of contract, it is necessary for a Plaintiff to plead facts showing the existence and subsistence of a valid contract as well as its express or implied terms. It is also necessary to show what or which of its terms was breached and in what manner, i.e. particulars of breach.
A party seeking to enforce rights under a contract must show that all that was needed to be fulfilled by it had been fully performed. All such terms requiring to be performed are conditions precedent to the enforcement of any right there under.
Therefore the onus is on the party who asserts

breach of contract to prove same before the burden will shift to the other party. In the instant appeal, the Appellants had failed to discharge the primary burden of proof that the Respondents had breached any of the terms of any of the contracts that appear to have been made by the parties. See EZENWA V. EKONG (1999) 11 NWLR (Pt. 625) 55.

After an overview of the entire pleadings and the evidence adduced by the parties, it does not appear that there is any way the observations and remarks of the learned trial judge at page 232-233 of the record of appeal and reproduced above can be otherwise.

The findings and conclusions are irresistible and cannot be faulted. I am of the view that the learned trial judge did a correct review and evaluation of all the evidence on record and came to the correct decision. I do not think that learned counsel for the Appellants has shown any good reasons why this Court should interfere with any of those findings.

I do not see any of those findings as being unreasonable or perverse in the circumstance.

The issues must be resolved against the Appellants and in favour of the Respondents.

This appeal being unmeritorious is hereby dismissed.

The judgment of the High Court of Ekiti State delivered by Hon Justice A. A. Adeleye on the 25th day of April, 2018 in Suit No HID/7/2017 is affirmed.

THERESA NGOLIKA ORJI-ABADUA. J.C.A.: I agree.

PAUL OBI ELECHI, J.C.A.: I agree.

Appearances:

Rotimi Adabembe, Esq., with him, Helen Olanipekun, Esq. For Appellant(s)

Charles Afinjuomo, Esq. For Respondent(s)