LINGO (NIG) LTD. v. ARTCO IND. LTD
(2020)LCN/14724(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, November 06, 2020
CA/A/626/2018
RATIO
INTERPRETATION: MEANING OF THE USE OF THE WORD “SHALL”
it is clear that there was the use of the word “shall” which in its ordinary meaning when used connotes a command, and that which must be given a compulsory meaning. See the case of ACHINEKU VS. ISHAGBA (1988) 4 NWLR (PTC 89) 411. PER IDRIS, J.C.A.
INTERPRETATION: CARDINAL RULE OF INTERPRETATION
In interpretation, clear and ordinary words need to be given its ordinary meaning. With the above interpretation, it means that any deviation from the stated clauses would amount to a breach of the agreement by the parties which the Appellant complained of. Where parties have entered into an agreement voluntarily and there is nothing to show that such agreement was obtained by fraud, mistake, deception or misrepresentation, they are bound by the terms of the agreement, See AG RIVERS STATE VS: AG AKWA STATE (2011) NWLR (PT. 1248) 31 AT 811. PER IDRIS, J.C.A.
WAIVER: POSITION OF THE LAW ON WAIVER
Where one party voluntarily agrees to a request by another to forbear his right to strict performance of the contract, or where he represents to another that he will not insist upon his right to strict performance of the contract, the Court may hold that he has waived his right to performance of the contract as initially contemplated by the parties. A waiver can either be inferred or implied as demonstrated in the case of MBELEDOGU VS. ANETO (1996) 2 NWLR (PTC 429) 157.
In the same caser, it was stated by Akintan, JCA thus:
“The law is that once a party waives his right in respect of an aspect of the performance of the contract in accordance with the terms agreed by the parties to the contract, that act prevents the party who waived his said right under the Contract, from insisting, upon his said legal right, having regard to the dealings which had taken place between the parties.” PER IDRIS, J.C.A.
EVIDENCE: EFFECT OF AN ADMITTED FACT
It is trite that a crucial fact which is admitted needs no further proof and same would be taken as established, see the cases of AGBANELO VS. U. B. N. LTD (2000) 7 NWLR (Pt. 666) 534 AT 549 and EDOKPOLO & CO. LTD OHENHEN (1994) 7 NWLR (pt. 358) 511 AT 519 per Fabiyi, JSC (PP. 24-251 G – A). PER IDRIS, J.C.A.
CONTRACT: WHETHER A PARTY WHO HAS BENEFITTED FROM A CONTRACT CAN EVADE HIS OBLIGATIONS UNDER THE CONTRACT
the law is also settled that a party who has benefited from a contract cannot evade his obligations under the contracts See the case of OKECHUKWU VS. ONUORAH (2000) 12 SC 11) 104 AT 109. PER IDRIS, J.C.A.
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
LINGO NIGERIA LIMITED APPELANT(S)
And
ARTCO INDUSTRIES LIMITED RESPONDENT(S)
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By a Writ of Summons dated and filed on the 15th February, 2016, the Respondent as Plaintiff at the trial Court instituted an action against the Appellant who was the Defendant and sought for the following reliefs:
1. A DECLARATION that the failure of the Defendant to comply with Clauses 42 (I – IV) and 43 of the Agreement amounts to a breach of contract.
2. AN ORDER OF COURT compelling Defendant to forth with pay the sum of N28,000,000.00 (Twenty-Eight Million Naira Only) being outstanding balance due under the furniture supply and installation agreement as well as the oral agreement for additional supply of furniture.
3. N50,000,000.00 (Fifty Million Naira only) as general damages for breach of contract.
4. N5,000,000.00 (Five Million Naira Only) cost of action,
5. 20% Compound interest on the total judgment sum from date of judgment.
Before going into the appeal, here is a summary of the facts involved in this appeal.
The Respondent as plaintiff at the trial Court instituted this action claiming that the Appellant accepted
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a quotation by the Respondent wherein it agreed to supply, manufacture and install furniture in the Appellant’s Five Star Hotel. The parties then entered into a formal agreement which stated the obligations of the parties.
The Respondent claimed that the duration of the contract was for two months and two weeks within which the it was to manufacture, supply and install the furniture and for a consideration of the sum of N149,000,000 (One Hundred and Forty-Nine Million Naira).
The Respondent claimed that the Appellant paid the sum of (Seventy Million Naira) and N55,000,000 (Fifty-Five Million Naira) as 1st and 2nd installment payments.
The Respondent also claims that he entered into another separate and oral agreement with the Appellant for the manufacture, supply and installation of additional furniture at the Appellant’s hotel for the sum of N4,000,000 (Four Million Naira Only) which the Respondent did and sent an invoice which was not honored by the Appellant.
The Respondent claimed that it fulfilled its obligations in the agreement pursuant to which the Appellant paid a total of N125,000,000 (One Hundred and Twenty-Five Million
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Naira) leaving a balance of N28,000,000 (Twenty- Eight Million Naira) representing the third installment payment of N19,000,000 (Nineteen Million Naira), fourth installment payment of N5,000,000 (Five Million Naira) and cost of additional furniture as per oral agreement – Invoice No 1543; N4,000,000 (Four Million Naira).
The Respondent claimed that the failure of the Appellant to pay the balance of N28,000,000 (Twenty-Eight Million Naira) is a breach of the agreement. Respondent further claimed that he wrote several letters of demand to the Appellant to no avail instead the Appellant wrote back to the Respondent informing it to wait for the next payment before completing the job which is a breach of the agreement and as a result, it has suffered damages which can only be atoned for by monetary compensation.
The Respondent at the trial Court, opened its case on the 20th March, 2017 calling one witness who testified and tendered seven (7) documents which were admitted and marked as Exhibits P1 – P6 thus:
Exhibit P1 – Furniture Manufacture, Supply and installation Agreement.
Exhibit P2 and P2A – Invoice number 1543 and
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letter attached to it.
Exhibit P3 – Letter dated 7th December, 2015
Exhibit P4 – Letter dated 27th January, 2016
Exhibit P5 – Letter dated 23rd November, 2015
Exhibit P6 – Letter dated 29th January, 2016
The Respondent closed its case on the 20th June, 2017 and the matter was adjourned to 7th June, 2017 for the defence to open its case.
The Appellant opened its defence on the 5th October, 2017 and called one witness who testified and tendered one document which was admitted and marked as Exhibit D1 – Letter dated 23rd November, 2015 written by the Appellant to the Respondent.
The Appellant then closed its case on the 7th June, 2017 and the matter was adjourned to 24th January, 2018 for adoption of final written addresses. Parties then filed and adopted their respective addresses on the 24th January, 2018.
After considering the evidence led by the parties, the learned trial judge, Honourable Justice Chizoba N, Oji delivered judgment in the Suit No. FCT/HC/CV/977/2016 on the 23rd April, 2018 wherein the trial judge granted judgment in favour of the Respondent.
Dissatisfied with the judgment of the
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trial Court, the Appellant filed a Notice of Appeal dated 5th June, 2018 comprising of Four (4) grounds of appeal.
Parties in the appeal before this Court filed and exchanged their respective briefs of argument.
In the Appellant’s brief of argument as settled by his counsel Ifeanyi M. Nrialike Esq., and dated 15th August, 2018 and filed on 16th August, 2018, the following issues for determination were distilled from the grounds of appeal as follows:
1. Whether the Trial Court was right not to have placed any weight on Exhibit D1 tendered by the Appellant (Ground 2 Notice of Appeal).
2. Whether it is proper for the Trial Court to hold that the Appellant has waived her right on breach of Clause 42 (I – IV) of Exhibit P1 having regards to Exhibit D1 and the decision of the Trial Court holding in the same breath that the Appellant was not in breach of Clause 42 (I —IV) and 43 of the said Exhibit P1, (Ground 3 of the Notice of Appeal).
3. Whether the Trial Court was proper to have awarded the of N28,000,000 (Twenty Eight Million Naira) only to the Respondent along with a cost of N50,000,000and interest having held that the Appellant was not
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in breach of Clause 42 (I – IV) and 43 as stated in Exhibit P1 and sub missed the breach of the Contract (Ground 1 and 4 of the Notice of Appeal).
In arguing these issues together, the Appellant’s Counsel argued that the Appellant and Respondent entered into an agreement vide Exhibit P1 for the Respondent to manufacture, supply and install furniture at the Appellant’s Five Star Hotel at Mabuchi Abuja and that the contract was in four stages which the Respondent was expected to proceed after the payment for each stage and not later.
The Appellant’s Counsel also argued that at a point, when the Respondent wanted to proceed to the 3rd stage of production and supply, the Appellant directed in writing by virtue of Exhibit D1 for the Respondent to hold production, manufacturing, supply and installation for the 3rd stage until payment for the 3rd stage was made in advance. Counsel further argued that the Court agreed with this position and that the Appellant was not in breach of Clause 4.03 as stated in Exhibit P1 but went on to submit that the Appellant waived her right to the breach and thus had suo motu introduced the issue of waiver and decided
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same without calling parties to address it on same.
The Appellant’s Counsel argued that Exhibit P1 at its amendment and modification clause was very specific that any waiver has to be in writing and that the trial Court having this in mind was therefore wrong to hold that the Appellant waived her right to reject the purportedly manufactured furniture when there is no written evidence of the waiver and that the trial Court has no vires to descend into the arena where there was no conflict and make decisions on them and that there was nowhere the Respondent contended that the Appellant waived her right to the breach.
The Appellant’s Counsel argued that there was no legal basis for the trial Court to have awarded the sum of N28,000,000 (Twenty-Eight Million Naira) and that a party must not be allowed to benefit from her lawlessness and that the essence of the agreement is for the parties to be guided.
The Appellant’s Counsel also argued that it is true that the Appellant awarded the Respondent a contract to the tune of N4,000,000 (Four Million Naira) but there is no evidence that the work was done. Counsel further argued that the invoice is of a
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suspicious origin as it does not have an acknowledgement when the Respondent claimed it was served on the Appellant and that it was an original copy which the Respondent did not provide apart from the original copy of the invoice, any reasonable evidence of the execution of the contract.
The Appellant’s Counsel also argued that the Respondent cannot validly claim to have rendered services for which advance payment as provided in the mutual agreement have not been made.
In conclusion, the Appellant’s Counsel submitted that the Respondent is clearly on a gold digging expedition through her claim and that the claim of the Respondent lacked merit and ought to have failed.
On the other hand, the Respondent filed its brief of argument dated 25th September, 2018 and filed on 26th September, 2018 settled by its Counsel, Abiola Olawole Olaniji, Esq., and adopted the issues for determination raised by the Appellant.
In arguing the issues, the Respondent’s Counsel argued that the trial judge having regards to the admissible evidence as well as the pleadings, rightly determined the case on the issue formulated at page 171 of the Record of Appeal.
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The Respondent’s Counsel further argued that the admissible evidence on record vide Exhibits P1 – P6, the Appellant paid a total of N125,000,000.00 (One Hundred and Twenty-Five Million Naira) out of the total contract sum of N153,000,000 (One Hundred and Fifty-Three Million Naira) leaving a balance of N28,000,000 (Twenty-Eight Million Naira) which was demonstrated through DW1.
The Respondent’s Counsel also argued that in Exhibit P6, the Appellant admitted that the contract had been completed as well as the N4,000,000.00 (Four Million Naira) additional contract by the Respondent but asked for more time and as such varied its position and manifested a clear intention not to rely strictly on the contents of Exhibit P1. On this point, counsel cited the case of FASADE VS. BABALOLA (2003) 3 SC (PART 1) 157 AT 166.
The Respondent’s Counsel also argued that with regards to the argument of the Appellant’s Counsel that the Court raised the issue of waiver suo motu and that it was only an inference and the Court is empowered to infer based on its inherent powers to do justice according to law. On this point, counsel cited the case of OLUSANYA VS. OSINLEYE
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(2013) 7 (PTC 1367) 148 AT 171. Counsel further submitted that the trial Court’s inference that the Appellant had waived its right has support in evidence especially by Exhibit P1 tendered without objection and signed by the DW1 himself.
The Respondent’s Counsel also argued that DW1 admitted that through Exhibit P6 and also under cross-examination, that the total contract sum was N153,000,000.00 (One Hundred and Fifty-Three Million Naira) which is made up of the N149,000,000.00 (One Hundred and Forty-Nine Million) in Exhibit P1 and N4,000,000.00 (Four Million Naira) and the trial Court found that the N4,000,000,00 (Four Million Naira) additional contract was performed.
In conclusion, the Respondent’s Counsel submitted that the decision of the trial Court that the Appellant should pay the sum of N28,000,000.00 to the Respondent having found that it has supplied the furniture to the Appellant and accepted same cannot be faulted.
Having summarized the arguments of counsel, I wish to raise a sole issue for determination thus:
Whether in consideration of the argument of counsel before this Court and the evidence before the Trial
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Court, this Court Can uphold the decision of the Trial Court.
In determining the issue for determination, it is important to bring out what I consider the points of argument by the parties in this appeal for effective determination of the issue. The points are:
1. What is the mode of payment according to Exhibit P1 which is the agreement entered into by the parties and whether there was a breach by the Respondent in this regard?
2. Whether the trial Court was right when it held that the Appellant waived its right to the breach and thus awarded the sum of N28,000,000.00 (Twenty-Eight Million Naira) to the Respondent?
3. Whether the Appellant awarded the Respondent another contract different from the initial contract contained in Exhibit P1 in consideration of N4,000,000.00 (Four Million Naira) and whether the Respondent performed its obligation in respect of this contract?
What is the mode of payment according to Exhibit P1 which is the agreement entered into by the parties and whether there was a breach by the Respondent in this regard?
The Appellant’s Counsel had argued that the contract was in four stages and for each of
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the stages the Respondent was expected to proceed after payment for that stage.
This Court is allowed to look at the contract in Exhibit P1 which is in the Record of Appeal before it to interpret how the payment was agreed to be made by the parties.
From the said Exhibit P1 at page 19 of the Record of Appeal, the stages of payment are clearly set out thus:
(i) The employer shall make the first installmental down payment of N70,000,000.00 (Seventy Million Naira) only and the Contractor shall manufacture, supply and install the furniture in 70 rooms which shall be selected from the three categories of rooms as stated in Clause 1.3 above.
(ii) The second installmental payment by the Employer shall be N55,000,000.00 (Fifty-five Million Naira) only and the contractor shall manufacture, supply and install furniture in additional 50 rooms bringing the total furniture installations of the rooms to 120 rooms, which rooms shall be selected from the categories of rooms as stated in paragraph above.
(iii) The third payment of N19,000,000.00 (Nineteen Million naira) only and the contractor shall manufacture, supply and install the outstanding
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15 rooms making the total installation of furniture for the complete 135 rooms.
(iv) The Fourth and final payment of the balance of N5,000,000.00 (Five Million Naira) only shall be paid after the completion of the Job.”
From the above reproduced, it is clear that there was the use of the word “shall” which in its ordinary meaning when used connotes a command, and that which must be given a compulsory meaning. See the case of ACHINEKU VS. ISHAGBA (1988) 4 NWLR (PTC 89) 411.
In interpreting the stages of payment reproduced above, it is clear that having regard to the word “shall” in mind as used in the clauses, it is clear that the parties intended for the 1st – 3rd stages of the payment to be done before manufacturer supply and installation of the furniture by the Respondent (Contractor). However, the 4th and final stage would be paid after the whole job in accordance with the agreement (Exhibit P1).
In interpretation, clear and ordinary words need to be given its ordinary meaning. With the above interpretation, it means that any deviation from the stated clauses would amount to a breach of the agreement by the
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parties which the Appellant complained of. Where parties have entered into an agreement voluntarily and there is nothing to show that such agreement was obtained by fraud, mistake, deception or misrepresentation, they are bound by the terms of the agreement, See AG RIVERS STATE VS: AG AKWA STATE (2011) NWLR (PT. 1248) 31 AT 811.
Further, the said Exhibit D1 even though it referred to an agreement dated 16th June, 2015, as against the Exhibit P1 which was executed on 11th June, 2015, this Court can infer that the Appellant was referring to Exhibit P1 which contains the stages of payment. Exhibit D1 clearly instructed the Respondent to wait for the next payment thus:
“When you finish the first and second stage that you were paid for, wait for the next payment before you complete the job. This is to enable our client inspect and approve the first and second stage before we will pay for the third stage:
Kindly follow the stages in the agreement.”
From the above therefore, it is clear that by going ahead with manufacture, supply and installation before the 3rd stage of payment is made and even after Exhibit D1 was written to the
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Respondent, the Respondent had breached the contract as stipulated in Exhibit P1 particularly contained at page 19 of the Record of Appeal.
I also agree with the finding of the trial Court at page 183 of the Record of Appeal that:
“the Defendant wanted to avoid a situation where the plaintiff would manufacture, supply and install furniture and it would not have the money to pay the Plaintiff by providing that the Defendant will first pay, before the Plaintiff manufactures the furniture.”
However, this as the trial judge had held, do not end here. Some questions that now comes to mind is whether the Appellant accepted the manufacture, supply and installation of the furniture in the 3rd stage which was done without it paying the 3rd installment for this stage and even though the Appellant instructed the Respondent not to via Exhibit D1.
This has brought me to the next point which is:
Whether the Trial Court was right when it held that the Appellant waived its right to the breach and thus awarded the sum of N28,000,000.00 to the Respondent?
Let me say like I have already considered above that the Appellant did not
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instruct the Respondent to continue with the 3rd stage of the contract until it receives payment for same which the Respondent went contrary to the total payment received by the Respondent for the 1st and 2nd stages would be:
1ST STAGE – N70,000,000.00 (Seventy Million Naira only).
2ND STAGE – N55,000,000.00 (Fifty-Five Million Naira only).
Total sum of payment for 1st and 2nd stages = N125,000,000.00 (One Hundred and Twenty-Five Million Naira) out of the total agreed contractual sum of N149,000,000.00 (One Hundred and Forty-Nine Million Naira Only)/ leaving a balance of N24,000,000,00 (Twenty-Four Million) for the payment of the 3rd and 4th stages.
From the Statement of Defence at the trial Court contained at page 60 – 64 of the Record of Appeal and the content of Exhibit P6, the Appellant did not deny that the Respondent carried out the 3rd stage of the agreement, neither is it its contention that they failed to perform their obligation under the 3rd stage of the contract, but instead the Appellant contends that the Respondent failed to abide by the clause in Exhibit P1 to receive payment before it manufactured, supplied and
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installed the furniture. (See also, paragraphs 8, 9 and 12 of the statement of defence contained at page 61 and 62 of the Record of Appeal).
By Exhibit P6, the Appellant even though it reminded the Respondent of the letter contained in Exhibit D1, it went further to ask the Respondent to exercise patience to enable their client pay it as soon as possible to enable it pay the Respondent (See Page 37 of the Record of Appeal).
From all my findings therefore, I will love to agree with the decision of the trial judge when he held that:
“it is clear that the Defendant chose the letter course i.e, the Defendant chose to waive the Breach.”
To me, the trial judge did not raise this issue of waiver suo motu as it is trite that in making its findings, a Court is empowered to look into the content of its record and it is as a result of its findings from the record and evidence before it that the trial Court arrived at its decision that the Appellant waived the breach by the Respondent which the Appellant now complains of.
A consideration of documents placed before a Court for its perusal cannot, in my view, amount to raising issue suo
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motu without giving counsel opportunity to address the Court on the issue as argued by learned counsel for the Appellant. See the cases of AKINOLA VS V.C UNILORIN (2004) 11 NWLR (PT. 885) 616 and BADEJO VS. FEDERAL MINISTRY OF EDUCATION (1996) 8 NWLR (PTC 464) 15.
Without looking into technicalities, waiver in this sense simply means that the Appellant being aware of the breach by the Respondent chose to continue with the contract like the breach never occurred in the 1st place. The Appellant had the option of terminating the contract at this point but he chose to act otherwise.
In my opinion, I think the actions of the Appellant shows that he waived the breach by the Respondent when he accepted the work done by the Respondent.
Where one party voluntarily agrees to a request by another to forbear his right to strict performance of the contract, or where he represents to another that he will not insist upon his right to strict performance of the contract, the Court may hold that he has waived his right to performance of the contract as initially contemplated by the parties. A waiver can either be inferred or implied as demonstrated in the case
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of MBELEDOGU VS. ANETO (1996) 2 NWLR (PTC 429) 157.
In the same caser, it was stated by Akintan, JCA thus:
“The law is that once a party waives his right in respect of an aspect of the performance of the contract in accordance with the terms agreed by the parties to the contract, that act prevents the party who waived his said right under the Contract, from insisting, upon his said legal right, having regard to the dealings which had taken place between the parties.”
Though the Respondent had executed the jobs which the Appellant had contracted it to do under the third stage of the contract, and even though the Appellant had received the manufacture, supply and installation of the furniture, taken possession of the finished products and are making use of them, it has failed, refused and/or neglected to pay.
This was acknowledged by the Defendant in paragraphs 8, 9 and 12 of the statement of defence filed by the Appellant at the trial Court and Exhibit P6. It is trite that a crucial fact which is admitted needs no further proof and same would be taken as established, see the cases of AGBANELO VS. U. B. N. LTD (2000) 7 NWLR
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(Pt. 666) 534 AT 549 and EDOKPOLO & CO. LTD OHENHEN (1994) 7 NWLR (pt. 358) 511 AT 519 per Fabiyi, JSC (PP. 24-251 G – A).
Thus, since the Appellant did not deny the contractual relationship which existed between it and the Respondent, the law is also settled that a party who has benefited from a contract cannot evade his obligations under the contracts See the case of OKECHUKWU VS. ONUORAH (2000) 12 SC 11) 104 AT 109.
Can the Appellant now refuse to meet up with her obligations and yet receive benefit from the apparent wrong which she had been aware of and still continued to contract with the Respondent? That is the essence of the judgment of the learned trial judge. I do not think the doctrine of equity and fair play will allow that to happen.
In any case, the evidence to the effect that the Appellant accepted the jobs done from the same source of breach which he now claims, is in possession and has put same to use is not challenged. But for the fall out, the Appellant had taken benefit from the same services of the Respondent through the same breach he now faults.
I share the views of learned trial judge and in the evaluation
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of the evidence before him, that the Appellant could have treated the said breach as a termination of the contract but he choose to act otherwise by receiving the manufacture, supply and installation of the furniture by the Respondent because it will be inequitable to take advantage of the contract and then turn round to seek to rubbish same.
In the case of ADEDEJI V. NATIONAL BANK OF NIGERIA (1989) 1 NWLR (PT.C 96) 212 AT 2261 Akpata, JCA (as he then was) held as follows:
“It is morally despicable for a person, who has benefited from an agreement to turn round and say that the agreement is null and void.”
The implication here is that the liberal meaning of the agreement is departed from where it would result in wrongful self-benefit. Thus, based on the state of the law vis-a-vis the facts of the case, I agree with the learned trial judge that the Appellant had waived its right to complain of the breach of the contract by the Respondent and I also do not fault the findings of the learned trial judge who after holding that there was a breach by the Respondent went ahead to hold that the Appellant waived its right as the breach by the
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Respondent is one thing and the waiver of the breach by the Appellant is another thing which must be taken to determine the whole issue.
From all my findings on this point therefore, it is my strong and unshaken view that the trial Court was right when it held that the Appellant waived its right to the breach and thus awarded the sum of N28,000,000.00 to the Respondent. This point is resolved against the Appellant.
Whether the Appellant awarded the Respondent another contract different from the initial contract contained in Exhibit P1 in consideration of N4,000,000.00 (Four Million Nara) and whether the Respondent performed its obligation in respect of this contract?
The Appellant’s Counsel argued that the Appellant awarded the Respondent a contract to the tune of N4,000,000 (Four Million Naira) for additional work but there was no evidence that the said work was done.
There would be no need to over-flog this issue because I have somewhat dealt with the issue under the second point which stemmed from the sole issue above but for want of specifics I would like to make a few findings hereunder.
It is pertinent to also state before I
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continue here that the N28,000,000.00 (Twenty-Eight Million Naira) being claimed by the Respondent is broken down thus:
The Third stage payment – N19,000,000 (Nineteen Million Naira)
The Fourth and Final Payment – N5,000,000 (Five Million Naira)
Additional Oral Contract for manufacture, supply and installation of furniture – N4,000,000.00 (Four Million Naira) Adding the above reproduced sum will result to the total sum of M28,000,000.00 (Twenty- Eight Million Naira).
The Appellant did not dispute the fact that there was an oral contract between it and the Respondent however its contention is that the said contractual obligation by the Respondent under this oral contract was not fulfilled by the Respondent.
This has got me to refer again to Exhibit P6. In Exhibit P6 as I had already stated somewhere in this judgment, the Appellant agreed that he owes the Respondent the sum of N28,000,000,00 (Twenty-Eight Million Naira) which consists of the N4,000,000.00 (Four Million Naira) being the sum for the oral contract to manufacture, supply and installation of furniture by the Respondent for the Appellant. The Appellant
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cannot now be heard to say that there was no proof that the Respondent executed the contract and that the invoice issued by the Respondent was not acknowledge by the Appellant.
There is no better way to prove that the Respondent fulfilled its obligation under the contract than the admission of the Appellant itself which is contained in Exhibit P6. It is trite that facts admitted needs no further proof as I have already held.
My view on this point therefore, is that it is clear from the record before this Court that the Appellant awarded the Respondent another contract different from the initial contract contained in Exhibit P1 in consideration of the sum of N4,000,000.00 (Four Million Naira) and that the Respondent performed its obligation in respect of the said contract. This point is therefore hereby resolved in favour of the Respondent.
This appeal is hereby dismissed. I make no further order as to cost.
PETER OLABISI IGE, J.C.A.: I agree.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the opportunity of reading in draft the lead judgment just delivered by my
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learned brother, Mohammed Baba Idris, JCA.
I agree with the reasoning and conclusion reached therein. I therefore also dismiss the appeal.
I make no order as to costs.
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Appearances:
Tolani Esq. with him Y. Goodluck Esq. For Appellant(s)
Osuji Esq. For Respondent(s)
