ASHAKA CEMENT PLC v. ASHARATUL MUBASHSHURUN INVESTMENT LIMITED
(2016)LCN/8144(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of January, 2016
CA/K/46/2014
RATIO
COURT: COURT’S DISCRETION; WHETHER IT IS AT THE DISCRETION OF THE TRIAL JUDGE TO GRANT OR REFUSE AN APPLICATION BY A PARTY SEEKING TO RECALL A WITNESS AND TO REOPEN A CASE TO LEAD ADDITIONAL EVIDENCE
It is not in contest that the grant or refusal of an application by a party seeking to recall a witness and to reopen a case to lead additional evidence is entirely at the discretion of the trial Judge – Ogbodo v. Odogha (1967) NMLR 400, Willoughby v. IMB Ltd (1987) 1 NWLR (Pt.48) 105, Nebo v. Federal Capital Development Authority (1998) 1 NWLR (Pt.574) Orisakwe & Sons Ltd v. Afribank Plc (2012) LPELR-CA/J/11/2005, Iyawe v. Mene (2014) LPELR-CA/B/374/2012. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
COURT: COURT’S DISCRETION; GUIDELINES TO BE APPLIED BY THE TRIAL COURTS IN THE EXERCISE OF DISCRETION TO RECALL A WITNESS TO GIVE ADDITIONAL EVIDENCE
It is trite that when a Court is called upon to exercise its discretion in favour of an application, it must ensure that it does not act arbitrarily but judicially and judiciously based on sound principle of law and by giving weight to relevant considerations – First Fuels Ltd v. NNPC (2007) 2 NWLR (Pt 1018) 276. Thus, for party to succeed in showing that a trial Judge exercised his discretion wrongly he has the onus to justify the fact that the discretion was not exercised judicially, i.e. that the discretion was exercised in an arbitrary manner and without due regard to all relevant considerations of necessary factors or on reliance up on wrong principles – National Bank of Nigeria Ltd v. Guthrie (Nig) Ltd (1993) 3 NWLR (Pt 284) 643 and Statoil (Nig) Ltd v. Star Deep Water Petroleum Ltd (2015) 16 NWLR (Pt.1485) 361. The exercise of the discretion to grant an application to recall a witness in civil matters and to lead additional evidence is not governed by any statutory provision and it is largely a matter of practice and it is predicated on the peculiar facts and given circumstances of the particular case and coupled with its attendant exigencies. Over the years, the Courts have developed guidelines to be applied by trial Courts in the exercise of discretion to recall a witness to give additional evidence. In Ogbodu v. Odogha (1967) NMLR 400, the Supreme Court stated that “undoubtedly the discretion to recall a witness by a Judge is one which should be exercised with great care, regard being had to the interest of justice and the desirability of remaining an impartial arbiter between the parties.” Thus, great care is the first constraint to the exercise of the discretion. Secondly, in Willoughby v. International Merchant Bank Ltd supra, Obaseki, JSC noted the exercise of the discretion is limited to grant of leave to call fresh evidence and the learned Justice proceeded to state thus: “what is fresh evidence? I think this is evidence that was not available previously which is designed to be a reply to the evidence given by the other side, on points material to the determination of the issue or any of them. It could not, in my view, be evidence which ought to have been led to establish the facts pleaded and meet the issues raised on the pleadings. If it were otherwise, the purpose of pleadings would be defeated.”
Where the application is made to call evidence which was available to a party when the witness testified and it is simply to fortify or strengthen the case of the party, the discretion will not be exercised in favour of the application – Bassey v. Ekanem (2001) 1 NWLR (Pt.694) 376. Thirdly, also in Willoughby v. International Merchant Bank Ltd supra, Oputa, JSC stated that for the trial Court to exercise the discretion, the party applying to recall the witness must supply sufficient materials relating to why he wants the witness recalled and what he intends to put to the witness and it is on these facts that the trial Judge will decide whether or not the justice of the case obliges him to exercise his discretion one way or the other. Where this is not done, the trial Judge will be handicapped in exercising its discretion in favour of the application – Musa v. Dalwa (2010) LPELR-CA/J/242/2001. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
INTERPRETATION OF DOCUMENT; HOW A DOCUMENT MUST BE READ
Now, it is settled that in interpreting a document, the document must be read as a whole, and not parts in isolation, and that the different parts of the document must be interpreted in the light of the whole document and an effort must be made to achieve harmony amongst its different parts – Unilife Development Co Ltd v. Adeshigbin (2001) 2 SCNJ 116, Mbani v. Bosi (2006) 11 NWLR (Pt.991) 400, Adetoun Oladefi Nig. Ltd v. Nigerian Breweries Plc (2007) 1 SCNJ 375, Agbareh v. Mimra (2008) 2 NWLR (Pt.1071) 378, Nigerian Army Vs Aminu-Kano (2010) 5 NWLR (Pt.1188) 429. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
CONTRACT: VARIATION OF CONTRACT; THE REQUIREMENT OF A VALID VARIATION
Variation of contract involves a definite alteration of contractual obligations by the mutual agreement of both parties. Variation is analogous to the entry by the parties into a new contract. The requirements of offer, acceptance and consideration are thus imposed. In Goss v. Lord Nugent 110 ER 713 at 716, the Court stated: “By the general rules of the common law?it is competent to the parties at any time before breach of it, by a new contract not in writing, either altogether to waive, dissolve, or annul the former agreements, or in any manner add to, subtract from or vary or qualify the terms of it and thus make a contract…”
For a variation to be effective, there must be a valid and subsisting contract on foot between the parties; there must be some form of consensus between the parties as to the obligations which are to be altered; and it must be supported by consideration – Oriloye v. Lagos State Government (2014) LPELR-CA/L/839 /2007, Unity Bank Plc v. Olatunji (2014) LPELR-CA/K/300/2012. A mutual abandonment of the existing rights of the parties under the agreement between them is sufficient consideration to support a variation of the agreement – Ekwunife v. Wayne (WA) Ltd (1989) 5 NWLR (Pt.122) 422 and Prospect ile Mills Ltd v. Imperial Chemical Industries Plc England (1996) 6 NNLR (Pt.457) 668. Also, consideration will be said to have been provided where a party would derive a superadded benefit from the contract by reason of the variation – Williams v. Roffrey Bros & Nicholas (Contractors) Ltd (1991) 1 QB 1. However, where the agreement is made exclusively for the benefit of only one party, or where, although it is capable of benefiting both parties, the agreement is actually made for the benefit of one alone, it will not be effective to vary the original contract since no consideration was present – Vanbergen v. St Edmund’s Properties Ltd (1933) 213 223. Also, where one party has fully performed his side of the contract and the other party’s performance has fallen due, no variation can be effective unless it imposes new obligation on the latter. An undertaking to perform an existing obligation does not amount to consideration to make the variation of a contract effective. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
PRACTICE AND PROCEDURE: INTERPRETATION OF DOCUMENTS; HOW THE COURT MUST INTERPRET THE TERMS OF A DOCUMENT
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 the operative words in the document their simple, ordinary and actual grammatical meaning – Union Bank of Nigeria Plc v. Ozigi (1994) 3 NWLR (Pt 333) 385, Isulight (Nig) Ltd v. Jackson (2005) 11 NWLR (Pt 937) 631, Egwunewu v. Egeagwu (2007) 6 NWLR (Pt 1031) 431. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
JUSTICES
UWANI MUSA ABBA-AJI Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
Between
ASHAKA CEMENT PLC Appellant(s)
AND
ASHARATUL MUBASHSHURUN INVESTMENT LIMITED Respondent(s)
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment) : The Respondent commenced the action in the Lower Court and its claims were for:
i. A declaration that the Respondent had successfully supplied the Appellant with 6,384,469 liters of Low Pour Fuel Oil (LPFO) into its (Appellant’s) Kano Storage facility or tanks at N75 per liter.
ii. A declaration that the Appellant has paid the Respondent the sum of N352,058,160.06 out of N478,835,175.00 leaving a balance of N126,777,014.37 unpaid to the Respondent.
iii. A declaration drat the Respondent is entitled to payment of the outstanding N126,777,014.37 from the Appellant being the outstanding balance of the LPFO supplied to the Appellant.
iv. An Order directing the Appellant to pay to the Respondent the sum of N126,777,014.37 being outstanding payment balance on 6,384,469 liters of Low Pour Fuel Oil (LPFO) the Respondent supplied to the Appellant into its Kano storage facility or tanks.
v. 10% interest per annum on the judgment sum from the date of judgment is delivered until the entire judgment sum is paid or liquidated.
vi. Cost of filing of this
suit.
The claims were predicated on an assertion of facts in an amended statement of claim.?
In response, the Appellant filed an amended statement of defence and counterclaim and its claims by the counterclaim were for:
i. The sum of N39,270,000 being the value of the shortages of the Low Pour Fuel Oil (LPFO) supplied to it by the Respondent.
ii. Interest on the said amount at 10% interest per annum from the date of judgment until final liquidation of same as well as legal costs and expenses.
The Respondent filed an amended reply to the amended statement of defence and a defence to the counterclaim.
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 and which Low Pour Fuel 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 N65.00 while that of?Kano would be
N59.50 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. It was its case that the contract document was executed by the representatives of the parties and that due to exigent circumstances, it applied three times for extension of the delivery period and that the extensions were granted and acceded to by the Appellant.
?It was the case of the Respondent that in the course of the supply, the price of the product rose up and it became impossible for it to continue the supply at the price agreed per liter and it wrote to the Appellant requesting for a price review and that the Appellant approved the request and a price of N75 per liter of Low Pour Fuel Oil (LPFO) was agreed. It was its case that it supplied the product into the Appellant’s Kano Storage facility and that it sent a delivery notification to the Appellant and requested the Appellant to send its official to confirm the delivery and that the Appellant did so and its Stores Manager wrote confirming that 6,384,469 liters of Low Pour Fuel Oil (LPFO) was supplied into its Kano Storage Tank
and that it had 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. It was its case that the total price of the product supplied was N478,835,175.00 and out of which the Appellant paid N352,058,160.06 leaving a balance of N126,777,014.37 which the Appellant has failed to pay despite repeated demands.
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 and that the unit price per liter for the supply to Ashaka was N65.00 while that for Kano was N59.50. The Appellant also 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, the Respondent 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 was for N69.50 per liter for delivery to Kano and N75.00 per liter for delivery to Ashaka and it conceded that it wrote a letter in response approving a price increase of N75.00 per liter, but it was its case that the letter was silent on the point of delivery and that based on the Respondent’s letter of request, the concession must have been for delivery to Ashaka and not for delivery to Kano.
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 Kano Storage tanks and requested it to send its official to confirm the delivery and it was its case that it sent its officials and that dipping was carried out to determine the content of the product in each of the storage tanks and initial examination
indicated that 6,375,108 liters of LPFO was supplied, but on evacuation of the LPFO, it was discovered that the Respondent only delivered 5,321,113 liters, making a shortfall of 1,053,995 liters of LPFO from the figure of 6,375,1,08 liters earlier indicated and this fact was communicated to the Respondent. It was its case that the Respondent admitted the shortfall of the LPFO evacuated from one of the storage tanks, as different from the initial reading, and assured it that investigation will be carried out and the shortfall made up and that there was no variation of pricing in respect of delivery to its Kano Storage tanks and that by the terms of the contract dated the 24th of July, 2007, any amount payable to the Respondent was subject 5% withholding tax deduction. It was its case that it was no longer indebted to the Respondent on the contract and that the Respondent instituted the action in an attempt to defraud it and it proceeded to state the particulars of fraud.
?On the counterclaim, it was the case of the Appellant that following the discovery of a shortfall of 1,053,995 liters of LPFO when the product was evacuated, a dispute arose as to the exact
quantity of LPFO supplied and the quantity to be compensated was not ascertained and that in the course of conciliation, the Respondent admitted a shortfall of 660,000 liters in a letter dated the 2nd of March,2009.It was its case that the value of the shortfall of 660,000 liters of LPFO at the contract sum was N39,270,000.00 and that it was entitled to receive this sum from the Respondent.
In its amended reply and defence to the counterclaim, the Respondent referred to an LPFO Supply Agreement entered into between the parties and which it said confirmed its claims against the Appellant and it was his case that the reviewed price of N75.00 per liter agreed by the parties was a flat rate for all the supplies and that the allegation of a shortfall of 1.05 Million liters of LPFO was non-existent and was introduced by the Appellant to bring confusion. It was its case that the Store Manager of the Appellant confirmed in writing via email that it supplied a total of 6,384,469 liters of LPFO into the Kano Storage tanks of the Appellant and that this was subsequently confirmed by a hard copy of a report on the quantity of LPFO supplied and that all the
subsequent letters 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 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 further 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.
The 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. The records show that in the course of trial, the Lower Court delivered a Ruling rejecting in evidence the letter of the Respondent dated the 2nd of March, 2009 which the Appellant sought to tender. The records also show that after, the Appellant had closed its defence and the matter was adjourned for adoption of written addresses, the Appellant filed an application seeking to reopen its case to lead further evidence and the Lower Court took arguments on the application and dismissed same in
considered Ruling. At the conclusion of the trial and after final written addresses by the parties, the Lower 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 the N75.00 per liter claimed by the Respondent and it thus entered judgment in favour of the Respondent, but in a lesser sum than claimed. It entered judgment for the Respondent in the sum N91,662,435.44 together with interest at the rate of 10% from 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. The Appellant caused its Counsel to file two notices of appeal – (i) notice of appeal dated the 24th of January, 2014, and which was filed with the leave of this Court, containing three grounds of appeal and it was against the two Rulings of the Lower 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 Lower Court. On its part, the Respondent caused its Counsel to file a notice of cross appeal dated the 23rd of December 2013 against the final judgment of the Lower Court and it contained two grounds of appeal. These are the three appeals for resolution in this matter.
In arguing the two appeals of the Appellant, his Counsel filed a brief of arguments dated the 8th of April, 2014 and the brief of arguments was deemed properly filed by this Court on the 2nd of October, 2014. In response, Counsel to the Respondent filed a brief of arguments dated the 30th of October, 2014. Counsel to the Appellant filed a reply brief of arguments dated the 14th of April, 2015 and it was deemed properly filed by this Court on the 1st of June, 2015. In arguing the cross appeal, Counsel to the Respondent filed a Cross Appellant’s brief of arguments dated the 10th of March, 2014 on the 12th of March, 2014. The Appellant, in response, filed Cross Respondent’s brief of arguments dated the 14th of April, 2015 and it was deemed properly filed by this Court on the 1st of
June, 2015. The Respondent filed a Cross Appellant’s reply brief of argument dated the 8th of June, 2015 on the 10th of June, 2015. At the hearing of the appeals and cross appeal, Counsel to the parties relied on and adopted the arguments in their respective briefs of arguments.
Counsel to the Appellant formulated seven issues for determination from the two notices of appeal of the Appellant. These were:
i. Whether the learned trial Judge was right in finding that there was a price review from N59.50 to N69.50 per liter for the supply of Low Pour Fuel Oil (LPFO) into the Kano Storage tanks.
ii. Whether the learned trial Judge was right in holding that the Respondent had supplied 6,384,469 liters of Low Pour Fuel Oil (LPFO) to the Appellant.
iii. Whether the learned trial Judge was right in holding that the Respondent was entitled to the payment of the sum of N91,662,435.44 as an outstanding amount due from the Appellant.
iv. Whether the learned Trial Judge has properly appraised the evidence adduced.
v. Whether upon proper construction of the agreement between the parties, Exhibit F was an admission by the Appellant that it had
received 6,384,469 liters of (LPFO) from the Respondent.
vi. Whether the refusal of the trial Judge to allow the Appellant to lead additional evidence was a proper exercise of judicial discretion.
vii. Whether the letter dated 2nd of March, 2009 from the Respondent to the Appellant was admissible.
On his part Counsel to the Respondent formulated four issues for determination in the appeals and he stated them thus:
i. Whether the learned trial Judge was right in holding that the Respondent supplied 6,384,469liters of Low Pour Fuel Oil (LPFO) into the Appellant’s Kano Storage facility or tanks.
ii. Whether the learned trial Judge was right in holding that the supply of 6,384,469liters of Low Pour Fuel Oil (LPFO) was made at N69.50 per liter.
iii. Whether in the circumstances of this case, the learned trial Judge was right in refusing the Appellant’s motion to reopen its case and lead additional evidence.
iv. Whether the learned trial Judge was right in rejecting the letter dated 2nd March, 2009 being privileged document.
?On the cross appeal, Counsel to the Respondent, as counsel to the cross appellant,
formulated only one issue for determination and it was:
”Whether the learned trial Judge was right in holding that the supply of the 6,384,469 liters of LPFO into the Appellant’s Kano Storage facility or tanks were made at the rate of N69.50 per liter.”
Counsel to the Appellant, as counsel to the cross respondent, agreed that there was one issue for determination in the cross appeal, but he reformulated the issue thus:
”Whether there was a price review from N59.50 to N75.00 per liter for the LPFO supplied into the Kano Storage tanks of the Appellant.”
?Reading through the notices of appeal of the Appellant, particularly the notice of appeal against the judgment of the Lower Court, the notice of cross appeal of the Respondent and the briefs of arguments of the parties in this appeal, it is obvious that the issue arising for determination in the cross appeal is very similar to one of the issues for determination arising in the appeals of the Appellant and that the submissions of the Counsel on the issue in the appeal and cross-appeal were interwoven and any attempt to segment them and to resolve the appeal and cross-appeal separately will
only lead to a segregated reasoning and disjointed conclusions. This Court will thus consider both the appeals of the Appellant and the cross-appeal of the Respondent together.
?It is the view of this Court that there are four issues arising for determination in the appeals and cross appeal and these are:
i. Whether the learned trial Judge was right in rejecting in evidence the letter dated 2nd March, 2009 and written by the Respondent to the Appellant when it was sought to be tendered by the Appellant in the course of trial.
ii. Whether in the circumstances of this case, the Lower Court was right in refusing the Appellant’s motion filed to reopen its case and lead additional evidence after the close of trial.
iii. Whether, based on the oral and documentary evidence led by the parties, the Lower Court was correct in holding that the quantity of Low Pour Fuel Oil (LPFO) supplied by the Respondent into the Appellant’s Kano Storage facility or tanks and for which the Appellant was liable to pay was 6,384,469 liters.
iv. Whether, based on the oral and documentary evidence led by the parties, the Lower Court was correct in holding that the
initially agreed price per liter, N59.50, was subsequently reviewed by the parties, and, if so, was the review to the price of N69.50 or N75.00.
The appeals of the Appellant and the cross-appeal of the Respondent will be resolved on these issues for determination. All the arguments of Counsel to the parties will be considered under these issues for determination and the issues will be dealt with seriatim.
Issue One
Going to the first issue for determination, this Court considers it pertinent to reproduce what took place in the Lower Court when the document was sought to be tendered, before considering the arguments thereon in this appeal. The records of appeal read thus:
“DW1 – In Paragraph 25 of my deposition dated the 29/4/2013 I made reference to a letter dated 2/ 3/ 2009.
Oke – We seek to tender the document in evidence.
Aliyu – I object to the admissibility of the document because it is a photocopy and proper foundation was not made as required by Section 89 Evidence Act 2011. I refer to the case of Anatogu v. lweka II …
Secondly, the document sought to be tendered is not admissible in evidence because it is a
privileged document made in the process of reconciliation and the defendant admitted that fact it its amended statement of defence and in Paragraph 2 of our amended reply to the amended defence and counterclaim we made reference to the said document. I refer to Alkadiri v. Atanda … also the case of Fawehinmi v. NBA … I urge the Court to reject the document and mark it tendered and rejected.
Oke – In reply, it is trite law that relevancy is the backbone of admissibility. If the document is relevant, it is admissible. The document is not made at the reconciliation process and is not made by the mediator. It was an admission by the claimant and it is relevant to this case. I urge the Court to admit it as it is their document.
Aliyu – It is trite that it is only relevance of the document that governs admissibility. The document must be admissible in law if it is relevant and it is not admissible in law if it is not admissible. In the absence of primary document, where secondary evidence is sought to be tendered proper foundation must be made….
Court – The objection is upheld. The document dated 2/3/2009 ? Resolution Proposal on
Business Relationship from Asharatul Mubashshirun Investment Ltd to Managing Director Ashaka Cement Plc is marked, tendered and rejected pursuant to the decision of the Supreme Court in the case of Fawehinmi v. NBA …” (see pages 57 to 58 of the records)
In arguing the first issue for determination, Counsel to the Appellant stated that the document tendered and rejected was listed on the list of documents to be relied on and it was frontloaded, and in the course of the pre-trial, the Respondent did not state that he was going to object to the admissibility of the document and this fact was reflected in the pre-trial conference report and that by reason of the pleadings, list of documents and the pretrial conference report, the case of Fawehinmi v. NBA was inapplicable and it was too late in the day for the Respondent to object to the admissibility of the document and it was thus a misdirection for the Lower Court to have rejected it. Counsel stated that assuming without conceding that the case of Fawehinmi v.
NBA was applicable to the case, a proper examination of the facts and principles of the case shows that they are not in tandem with this case
because there was no evidence adduced in this case that the parties agreed that the letter would not be tendered in evidence and the letter was not marked “without prejudice” and secondly, the admission in the letter was plot made in the course of a bona fide attempt to settle and neither was it made for the purpose of reaching a compromise and that the admission in the letter had already been made and communicated to the Appellant before the letter was written. Counsel stated further that the Appellant pleaded fraud and that in proving fraud, all relevant documents were admissible, even if illegally obtained and he referred to the case of Musa Sadau v. The State (1968) All NLR 128 and continued that all relevant documents are admissible and the goodness or badness goes to weight only and he referred to the case of Garton v. Hunter (1969) 2 QB 37. Counsel stated that the letter dated 2nd of March,2009 was thus admissible and he urged this Court to use its powers under Section 15 of the Court of Appeal Act2004 to admit the document and allow the counterclaim.
?In response, Counsel to the Respondent stated the Appellant admitted in the statement of
defence that the document in question was a privileged document as it emanated out of a process of conciliation and that it is recognized that in some circumstances it is not essential that the words “without prejudice” be used and it may be implied that negotiation was conducted on this understanding and he referred to the cases of Ashibogwu v. A. G. Bendel State (1988) 1 NWLR (Pt 69) 138 and Fawehinmi v. NBA (No.2) (1989) 2 NWLR (Pt.105) 558. Counsel stated that the document in issue having been made in the course of conciliation or settlement, it is impliedly without prejudice and cannot constitute an admission of liability on the part of the Respondent and he referred to the case of Akanbi v. Alatede (Nig) Ltd (2000) 1 NWLR (Pt 639) 125. Counsel stated that the reference made by Counsel to the Appellant to the plea of fraud is a non-starter because the Lower Court found that the Appellant failed to prove the allegation of fraud and that this finding was not appealed against and that as such it cannot be canvassed again and he referred to the case of Jimoh v. Akande (2009) NWLR (Pt.1135) 549. Counsel stated that the Appellant has not given this Court any
reason to tamper with the judgment of the Lower Court dismissing the counterclaim of the Appellant and that this Court should refuse the Appellant’s request that the judgment on the counterclaim be set aside.
?The document that was tendered by the Appellant and rejected in evidence by the Lower Court was a letter dated 2nd March, 2009 and written by the Respondent to the Appellant and which, according to the Lower Court, was captioned Resolution Proposal on Business Relationship. In pleading the document, the Appellant averred in its counterclaim 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 course of reconciliation, the Respondent admitted a shortfall of 660,000 liters in a letter dated the 2nd of March, 2009. These facts were reiterated by the sole defence witness in his written testimony in his evidence in chief. In its amended reply, the Respondent pleaded that it agreed to absorb 660,000 liters out of the alleged shortfall 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 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 parties.
The position of the law on the admissibility of a statement made or document written in the course of negotiation to settle a dispute has since been resolved by our Courts. In Ashibuogwu v. Attoney General Bendel State (1988) 1 SC 248, Nnaemeka-Agu, JSC put the law thus:
“A statement made in the course of a negotiation of the compensation or the offer of such a compensation would, in my view, be analogous to a statement made “without prejudice” during a negotiation. The law has always taken the view that parties should speak freely in attempting a settlement of their disputes. That freedom of discussion will be seriously prejudiced if any offer or admission made in the process of the negotiation could be given in evidence and be used to support a party’s case in Court afterwards, should the negotiation break down. Where such
negotiations are made by written communication they are usually marked “without prejudice” and are inadmissible against the parties in that suit. But it is recognized that in some circumstances it is not essential that the words “without prejudice” should have been used: it may be implied that negotiations were conducted on this understanding. Hence in Mole v. Mole …, oral communications to a conciliator by a party to a matrimonial dispute was treated as having been made without prejudice. See also Pool v. Pool …; Henley v. Henley … Although these two cases deal with privilege attaching to statements made during negotiations as between a husband and his wife during a dispute, the principle is rather broadly – based. The learned authors of Phipson On Evidence (11th Ed) put it thus . . . ‘Offers of compromise made expressly or impliedly ‘without prejudice” cannot be given in evidence against a party as admissions; the law on grounds of public policy, protects negotiation bona fide entered into for the settlement of disputes.’ The privilege is, however that of the parties.”
?In other words, an offer or admission made in a written document in the course
of negotiation between parties to resolve a dispute is inadmissible against the party that made it in a subsequent litigation on the subject matter of the dispute, whether or not that document was marked “without prejudice”. This statement of law was reiterated by the Supreme Court in Fawehinmi v. Nigeria Bar Association (No. 2) (1989) 2 NWLR (Pt.105) 558 and by this Court in Akanbi v. Alatede (Nig) Ltd (2000) 1 NWLR (Pt 639) 125, Kolo v. First Bank of Nigeria Plc (2003) 3 NWLR (Pt.806) 216, Ibiyeye v. Gold (2011) LPELR-CA/L/M/95/2010 and Acmel Nigeria Ltd v. First Bank of Nigeria Plc (2014) 6 NWLR (Pt.1402) 158. This principle was given a partial statutory imprimatur in Section 196 of the Evidence Act which reads “a statement in any document marked “without prejudice” made in the course of negotiation for a settlement of a dispute out of Court, shall not be given in evidence in any civil proceeding in proof of the matters stated in it.
?Counsel to the Appellant submitted that the above principle should not apply in the instant case because the Respondent did not indicate at the pretrial conference that he would be objecting to the admissibility of
the letter at trial. It is the view of this Court that though it is desirable that a party should indicate at the pretrial conference of a matter if it is going to object to the admissibility of any document that the other party has listed as one to be relied on at trial, the failure to so indicate cannot, should not, prevent the party from raising an objection to admissibility at trial. This is because that proper time for a party to object to the admissibility of a document is at the time it is tendered in evidence – Lawson-Jack v. Shell Petroleum Development Co (Nig) Ltd (2002) 13 NWLR (Pt.783) 180, Fatubi v. Olanloye (2004) 12 NWLR (Pt.887) 229. The party who was misled by the failure of the other party to indicate its objection at pretrial conference can be compensated in costs, but such failure to indicate should not be a ground for admitting a document that the Evidence Act states is inadmissible in law. The Rules of Court cannot override a substantive legislation. Also, the fact that the Appellant pleaded fraud is irrelevant to the admissibility of the document, and this more so as the letter had nothing to do with the fraud pleaded by the Appellant;
fraud was pleaded in the assertion in its defence to the claim of the Respondent whilst the letter was pleaded as part of its counterclaim.
The finding of the trial Court that the letter dated 2nd March, 2009 and written by the Respondent to the Appellant and which, according to the Lower Court, was captioned Resolution Proposal on Business Relationship, is inadmissible cannot be faulted in the circumstances of this case. The first issue for determination is resolved against the Appellant.
Issue Two
On the second issue for determination, the records of appeal show that at the conclusion of the evidence in chief of the sole witness of the Respondent, Counsel to the Appellant declined cross examination and opened the defence of the Appellant. The records show that at the conclusion of the evidence and cross examination of the sole witness of the Appellant, Counsel to the Appellant applied for time for the parties to file their respective final addresses and for a date for the adoption of the final addresses. All these transpired on the 29th of April, 2013 and the Court gave the parties two weeks each to file their final addresses and adjourned the
matter to the 31st of May, 2013 for adoption of addresses. The records show that rather than file a written address, Counsel to the Appellant filed a motion on notice on the 30th of May, 2013 praying for leave to reopen the case of the Appellant to lead further evidence and to recall the witness of the Respondent for cross examination. The records show that Counsel to the Respondent opposed the application. The Lower Court took arguments on the motion and dismissed it in a considered Ruling delivered on the 19th of June, 2013. The Lower Court stated in the Ruling thus:?
“… In determining this application we must not forget that it is a case instituted under the Fast Track Procedure. By the Fast Track Rules, cases under the Fast Track Procedure are to be concluded, i.e. final judgment in the case to be delivered, within 8 months from the date of filing and the present case, a fast track case, is already over 6 months. By Order 4 Rule 2(b) of the Fast Track Procedure, applications are promptly made to avoid delay in the conduct of cases in the fast track. At the close of the case for both parties on 29/4/2013 the matter was adjourned for adoption of
written address to the 31/5/2013. On 31/5/2013, the applicant brought a motion for leave to reopen its case and recall PW1 for cross examination. It is pertinent to point out at this stage that when the respondent’s counsel was asked to cross examine the claimant’s witness, i.e. PW1, she said she had no questions for him and was recorded accordingly. The following questions to be asked are;
1. Whether the Respondent has been given the opportunity to know the case it has to meet at the hearing and to adequately prepare for its defence.
2. Whether the Respondent has been present all through the proceedings to heal all the evidence against it.
3. Whether the Respondent has been given the right to cross examine the witness who gave evidence against it.
4. Whether it has been granted access to and the opportunity to read all the documents tendered in evidence.
If all the above questions are answered in the affirmative, it follows therefore that a person who is to enjoy a benefit and is fully aware of his right to the benefit but decides not to utilize such right, shows that the party deliberately refused to take advantage when it was
availed it. The Respondent/Applicant had all the opportunity available to them but failed to utilize same. The Applicant’s counsel contention that the counsel who conducted the case acted contrary to his instructions will not hold in the circumstances of this case, even if it were not a case under the Fast Track Procedure. More so, when the Respondent’s counsel Mrs. Mary Joseph Adeyi has been the counsel in the case throughout the trial. In Willoughby’s case … relied on by both counsel, it was 8 days after the closure of the case that an application of this nature was brought. In the present case it is 31 days after the closure of the case, i.e. on the date the addresses of counsel were to be adopted, when the application was brought. This also goes to show lack of diligence in the attitude of the Respondent. He who comes to equity must come with clean hands and equity aids the diligent and not the indolent. The Court has statutorily done all that is required of it to do to give the Respondent /Applicant all the opportunity for its defence. As such, the misuse of this opportunity by Respondent/Applicant must be presumed that the right is left to go. The
Respondent/applicant cannot be heard to complain.
In a recent decision of the Supreme Court, Chukwura v. FRN . . ., the Supreme Court held that the general principle of law and practice in our adversarial system is that after the close of a case, no further evidence ought to ordinarily be given by any of the parties.
In line with the above decision of the Supreme Court, I refuse the application and it is accordingly dismissed. ”
In arguing the second issue for determination, Counsel to the Appellant stated that the application fell with the power of judicial discretion and that there were no hard and fast rules on the exercise of judicial discretion but that where due weight is not given to relevant considerations, an appellate Court would interfere and he referred to the case of UBN Plc v. Astra Builders (2010) 5 NWLR (Pt 1186) 1. Counsel stated that the considerations taken into account by the Lower Court in refusing the application were out of tune with the current judicial attitude to litigation and that the decision in Willoughby v. IMB Ltd (1987) 1 NWLR (Pt.48) was based on the principles stated by the Supreme Court in the 1967 case of
Ogbodu v. Odogha (1967) NMLR 400 and that this decision was rendered at a time that the attitude of the Courts was profoundly more technical in litigation and that the philosophy has since changed to that of doing substantial justice to the litigants. Counsel stated that the Lower Court was clearly far more concerned about the case being fast track and applying the rigid principles developed by the Court in the earlier era and that the case of Willoughby v. IMB did not outlaw the recall of witnesses in civil proceedings and the Lower Court ought to have viewed the principles more liberally in these days of substantial justice and he referred to the case of Saleh v. Mongunu (2006) 15 NWLR (Pt 1001) 26. Counsel stated that the learned trial Judge refused to exercise its discretion on the authority of the case of Chukwurah v. FRN (2011) 5 SCNJ 40, a case which arose in a criminal case with a different standard of proof as opposed to a civil proceeding and that on this score alone the failure to exercise discretion by the Lower Court ought to be reviewed by this Court. Counsel urged this Court to resolve the issue for determination in favour of the Appellant.<br< p=””
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On his part, Counsel to the Respondent stated that the grant or refusal of the application in question was entirely at the discretion of the Lower Court and which discretion was to be exercised judicially and judiciously and he thereafter traversed through the history of the case from inception up till when the application was filed and stated that no Court of law or equity would have exercised its discretion in favour of the application of the Appellant in the circumstances. Counsel stated that the entire conduct of the Appellant from inception was to seek to delay the progress of the matter and frustrate the Respondent and that the Counsel to the Appellant chose willingly to forgo the right to cross examine the witness of the Respondent and that the hands of the Appellant who went before the Lower Court to seek an equitable relief were not clean. Counsel stated that the case of Willoughby v. IMB was applicable to the facts of this case and he also referred to the case of Re: Chief Bolaji Bakare (1969) All NLR 74 and stated that the Lower Court rightly refused to exercise its discretion in favour of the application of the Appellant in line with the justice
of the case and that this exercise of discretion must not be disturbed by this Court for the simple reason that this Court would have exercised the discretion differently and he relied on the case of Nigerian Laboratory Corp v. PMB Ltd (2012) 15 NWLR (Pt.1324) 505. Counsel urged this Court to resolve the issue for determination in favour of the Respondent.
It is not in contest that the grant or refusal of an application by a party seeking to recall a witness and to reopen a case to lead additional evidence is entirely at the discretion of the trial Judge – Ogbodo v. Odogha (1967) NMLR 400, Willoughby v. IMB Ltd (1987) 1 NWLR (Pt.48) 105, Nebo v. Federal Capital Development Authority (1998) 1 NWLR (Pt.574) Orisakwe & Sons Ltd v. Afribank Plc (2012) LPELR-CA/J/11/2005, Iyawe v. Mene (2014) LPELR-CA/B/374/2012.
It is trite that when a Court is called upon to exercise its discretion in favour of an application, it must ensure that it does not act arbitrarily but judicially and judiciously based on sound principle of law and by giving weight to relevant considerations – First Fuels Ltd v. NNPC (2007) 2 NWLR (Pt 1018) 276.
?Thus, for party to succeed in
showing that a trial Judge exercised his discretion wrongly he has the onus to justify the fact that the discretion was not exercised judicially, i.e. that the discretion was exercised in an arbitrary manner and without due regard to all relevant considerations of necessary factors or on reliance up on wrong principles – National Bank of Nigeria Ltd v. Guthrie (Nig) Ltd (1993) 3 NWLR (Pt 284) 643 and Statoil (Nig) Ltd v. Star Deep Water Petroleum Ltd (2015) 16 NWLR (Pt.1485) 361.
The exercise of the discretion to grant an application to recall a witness in civil matters and to lead additional evidence is not governed by any statutory provision and it is largely a matter of practice and it is predicated on the peculiar facts and given circumstances of the particular case and coupled with its attendant exigencies. Over the years, the Courts have developed guidelines to be applied by trial Courts in the exercise of discretion to recall a witness to give additional evidence. In Ogbodu v. Odogha (1967) NMLR 400, the Supreme Court stated that “undoubtedly the discretion to recall a witness by a Judge is one which should be exercised with great care, regard
being had to the interest of justice and the desirability of remaining an impartial arbiter between the parties.” Thus, great care is the first constraint to the exercise of the discretion. Secondly, in Willoughby v. International Merchant Bank Ltd supra, Obaseki, JSC noted the exercise of the discretion is limited to grant of leave to call fresh evidence and the learned Justice proceeded to state thus: “what is fresh evidence? I think this is evidence that was not available previously which is designed to be a reply to the evidence given by the other side, on points material to the determination of the issue or any of them. It could not, in my view, be evidence which ought to have been led to establish the facts pleaded and meet the issues raised on the pleadings. If it were otherwise, the purpose of pleadings would be defeated.”
Where the application is made to call evidence which was available to a party when the witness testified and it is simply to fortify or strengthen the case of the party, the discretion will not be exercised in favour of the application – Bassey v. Ekanem (2001) 1 NWLR (Pt.694) 376. Thirdly, also in Willoughby v. International
Merchant Bank Ltd supra, Oputa, JSC stated that for the trial Court to exercise the discretion, the party applying to recall the witness must supply sufficient materials relating to why he wants the witness recalled and what he intends to put to the witness and it is on these facts that the trial Judge will decide whether or not the justice of the case obliges him to exercise his discretion one way or the other. Where this is not done, the trial Judge will be handicapped in exercising its discretion in favour of the application – Musa v. Dalwa (2010) LPELR-CA/J/242/2001.
?Reading through the above excerpts of the Ruling complained against, it is obvious that the Lower Court refused the application of the Appellant on the grounds that the Counsel to the Appellant did not give reasonable and plausible reasons to sustain the prayers sought and that there was an unexplained delay of thirty-one days in the filing of the application. Counsel to the Appellant did not contend these reasons of the Lower Court in his arguments in this appeal. It is pertinent to point out that the application of the Appellant in question was very similar to the application that was
in issue in the case of Willoughby v. International Merchant Bank Ltd supra and which went to the Supreme Court and the Supreme Court stated that the grant of the application in that case by the trial Court in the “interest of justice” was a wrongful and an injudicious use of discretion. The Lower Court was right to have drawn strength from the position of the Supreme Court in that case in reaching its conclusions on the application of the Appellant. Counsel to the Appellant argued in this appeal that the principles enunciated by the Supreme Court in the case of Willoughby v. International Merchant Bank Ltd had become archaic and no longer relevant, but he failed woefully to state the present relevant principles to the application of the Appellant and/or refer to one “modern day” case where the principles were canvassed, different from those in Willoughby v. International Merchant Bank Ltd.
?The reasons given by the Lower Court for dismissing the application of the Appellant came within the relevant considerations and guidelines laid down in decided cases for dealing with an application of that nature and they were not extraneous. The additional evidence
sought to be given by the Appellant was not fresh evidence and all that the Appellant sought to do by the application was to reopen his case and call additional evidence to fortify and strengthen the case, after the close of trial by mutual agreement. It is settled law that an appellate Court will rarely interfere with the exercise of discretion by a Lower Court and will only do so where the exercise is based on extraneous issues or where the exercise of such discretion was not bona fide – Integration (Nig) Ltd v. Zumafon (Nig) Ltd (2014) 4 NWLR (Pt.1398) 479. The Appellant has not shown that the exercise of discretion by the Lower Court to refuse his application was an injudicious, arbitrary or reckless exercise of discretion. The Appellant has not given this Court any reason to interfere with the exercise of discretion by the Lower Court. The second issue for determination is resolved against the Appellant.
Issue Three
This takes us to the third issue for determination – whether based on the pleadings and evidence, the Lower Court was correct in holding that the quantity of Low Pour Fuel Oil (LPFO) supplied by the Respondent into the Appellant’s
Kano Storage facility or tanks and for which the Appellant was liable to pay was 6,384,469 liters. In arguing this issue, Counsel to the Appellant stated that the transaction between the parties were governed by two documents, the contract for the supply of Eleven Million liters of Low Pour Fuel Oil (LPFO) dated the 24th of July, 2007, tendered as Exhibit A, and the addendum thereto made on the 12th of August, 2008, tendered as Exhibit K, and that the addendum contained more detailed provisions in the form of a formal contract. Counsel stated that under the contract, Exhibits A and K, the quantity of LPFO supplied was one thing and quantity of LPFO evacuated by the Appellant from its storage tanks was a completely different matter and that the amount to be taken as delivered to the Appellant is the quantity evacuated and it is for that quantity that the liability of the Appellant to pay arises. Counsel stated that the finding of the Lower Court that ‘by Exhibits F and K the Appellant acknowledged the supply of 6,384,469 liters of LPFO at the Kano Storage tanks by the Respondent’ was not supported by evidence and that Exhibit F, a letter addressed to the
Respondent by the Store Manager of the Appellant, stated in its last sentence that liability was dependent on the evacuated product and thus, did not amount acceptance of liability for 6,384,469 liters of LPFO.
Counsel stated that the reliance placed by the Lower Court on Exhibit L, an email dated the 12th of May, 2008, which emanated from the Store Manager of the Appellant and was addressed to other staff of the Appellant and to which was attached a report titled “Inspection Report of Kano LPFO Storage tank”, to find liability on the part of the Appellant for 6,384,469 liters of LPFO was wrongful because the document was inconclusive as it was not signed and there was no evidence that the recommendations made therein were accepted by the Appellant and he referred to the case of Chrisdon Industrial Ltd v. AIB Ltd (2002) 8 NWLR (Pt.768) 152. Counsel stated that the ambivalence of Exhibit L, was resolved by Exhibit F, written by the same store manager of the Appellant, wherein it was clearly stated that the liability of the Appellant was dependent on the quality of LPFO evacuated from the storage tank by the Appellant and not on the quantity alleged
supplied by the Respondent and that Exhibit K which was subsequent to Exhibits L and F, made it clear that evacuation was the key. Counsel stated that Exhibit F was followed up by Exhibit N, a letter written in November, 2008 notifying the Respondent that on the completion of the evacuation exercise a shortage of 1,053,995 liters was recorded, but that the Lower Court commenting on Exhibit N, stated that the shortages complained of were not in respect of the issue in contention and that this amounted to the Lower Court making a case for the parties and this was not part of the duty of a Court and he referred to the case of Baker Marine Nig Ltd v. Chevron (Nig) Ltd (2006) 13 NWLR (Pt.997) 276.
Counsel stated the preamble to Exhibit K which stated that “The Supplier has supplied 6,384,469 liters of LPFO to Purchaser’s storage tanks in Kano” did not amount to admission of liability and that Exhibit K was internally inconsistent and that the measurement mentioned in the preamble was still subject to quantity loaded into the trucks of the Appellant in accordance with clause 4(b) of the Exhibit and that until then, the product remained at the risk of the
Respondent, clause 3(a). Counsel stated that the real bone of contention was not that of supply at Kano storage tanks because the parties were agreed that supply into Kano storage tanks was not the same as supply to the Appellant and that supply to the Appellant was, under the contract, when the product is received and this happens when the quantity of LPFO was loaded at the Kano storage tanks into the trucks of the Appellant and that this was the real bone of contention as it was the quantity loaded into the trucks that defined the liability of the Appellant and the amount it is to pay. Counsel stated that upon a proper construction of Exhibits L, F and K they will be found to be consistent that payment was only for the exact quantity loaded into the Appellant’s trucks and that in case of dispute arising from documentary evidence the whole documents are read together to resolve the conflict and he referred to the case of Ezenwa v. KSHSMB (2011) 9 NWLR (Pt.1251) 89. Counsel stated that the duty of the Court is to interpret the agreement between parties strictly and he referred to the case of Odutola v. Papersack (Nig) Ltd (2006) 18 NWLR (Pt.1012) 470 and
concluded that the Lower Court was thus in error when it found that the Respondent had supplied 6,384,469 liters of LPFO to the Appellant. Counsel urged this Court to resolve this issue for determination in favour of the Appellant.
In his response arguments, Counsel to the Respondent traversed through the pleadings and the unchallenged evidence of the sole witness called by the Respondent and the evidence of the sole defence witness of the Appellant and stated that it was very obvious that the Lower Court predicated its findings and conclusions on the pleadings and evidence led by the parties and that this Court will not interfere with a finding a fact made by a trial Court on the strength of the pleadings and evidence led at trial and he referred to the case of Ojo v. Governor of Oyo State (1989) 1 SC (Pt.1) 1. Counsel stated that the assertion of Counsel to the Appellant that Exhibit L, the email that emanated from the Store Manager of the Appellant, was inconclusive and not signed thus making it of doubtful evidential value was not correct because the authenticity of the email and of its contents were confirmed by the defence witness in his testimony.
Counsel stated that in the course of trial, the sole witness called by the Respondent gave evidence as to the quantity of the LPFO supplied as 6,384,469 liters and he was not cross examined by the Counsel to the Appellant and neither was the witness confronted with the alleged issue of shortages being canvassed by the Appellant and that it was settled law that where an adversary testifies on a material point in controversy in a matter and the other party fails to cross examine him on that point, the other party will be deemed to have accepted the truth of that testimony on the point and he referred to the case of Amadi v. Nwosu (1992) 5 NWLR (Pt.241) 273.
Counsel stated that the entire issue of shortages being raised and canvassed by the Appellant was speculative as there was clear evidence in Exhibits F, K and L that the parties were agreed that the Respondent supplied 6,384,469 liters of LPFO and that this quantity of LPFO was confirmed to have been accepted by the Appellant and he thereafter referred to the specific contents of the Exhibits. Counsel stated that the alleged shortages of 1,053,995 liters of LPFO was not proved by the Appellant as the
defence witness admitted that his evidence on oath was different from the contents of Exhibit N where the issue of shortages was raised for the first time and that the said Exhibit N had no bearing on the case before the Lower Court as it referred to the supply of 6,375,708 liters of LPFO and not in respect of the supply of 6,384,469 liters which was the subject of dispute between the parties and that thus the finding of the Lower Court that Exhibit N was not related to the case at hand cannot be faulted. Counsel stated that assuming that Exhibit N was relevant to the case at hand, it still was not useful to establish the alleged shortages because Exhibit K stipulated that Appellant shall ensure complete evacuation of the product from its Kano Storage tanks within three to four weeks of the agreement, Exhibit K, and that the agreement was signed on the 12th of August, 2008 while Exhibit N was issued on the 12th of November, 2008.
?Counsel stated further that the contents of Exhibit N amounted to an attempt by the Appellant to alter and/ or vary the contents of Exhibit K wherein the Appellant had accepted that the confirmed quantity of LPFO supplied by the
Respondent was 6,384,469 liters and that clause 9 of Exhibit K stated that no such alteration of the agreement shall be effective unless made in writing and accepted by the authorized signatories of both parties and the contents of Exhibit N was not so accepted by the authorized signatories of the parties. Counsel stated that it was in evidence before the Lower Court that the Appellant commenced making payments to the Respondent for the LPFO supplied long before Exhibit N was issued and that a further payment was made even after it was issued as confirmed by Exhibits H, I and J and that the question was why were payments for the LPFO before and even after the evacuation of the product and the alleged discovery of shortages and that the only plausible answer was that Exhibit N was an afterthought. Counsel stated that if indeed there was any shortages from the 6,384,469 liters of LPFO agreed and confirmed by the parties to have been supplied, the Appellant would have notified the Respondent within four weeks of the making of Exhibit K and definitely before making payments because according to Exhibit K payment for the product supplied was to be made after
notification of confirmed quantity supplied within one week of evacuation. Counsel stated that these showed that the quantity of product supplied and evacuated was 6,384,469 liters of LPFO and that the finding of the Lower Court on the point was this correct. Counsel urged this Court to resolve this issue for determination in favour of the Respondent.
?The facts of this case are pretty straight forward and they are not really in contest, both on the pleadings and in the evidence led. It was not in contest between the parties that by a contract dated the 24th of July 2007 it was agreed that the Respondent would supply Eleven Million liters of Low Pour Fuel Oil (LPFO) to the Appellant and which Low Pour Fuel 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 N65.00 while that for Kano would be N59.50 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; the contract was Exhibit A at the trial. It was not in contest that the
Respondent wrote letters at different times requesting for extension of the six weeks supply period and the Appellant conceded the requests; the letters of the Appellant dated the 26th of July, 2007, 24th of October, 2007 and dated 7th of February, 2008 consenting to the Respondent’s requests for extension were Exhibits B, C and D.
It was not in contest that due to an increment in the price of the product, the Respondent wrote a letter dated the 27th of February, 2008 requesting for a price review and it proposed the price of N69.50 per liter for supplies to Kano and N75.00 per liter for supplies to Ashaka and that by a letter dated the 28th of February 2008, the Respondent approved a price increase to the sum of N75.00 per liter; the letter requesting for price review and that approving the review were Exhibits M and E respectively at the trial. It was not in contest that the Respondent supplied the LPFO into the Appellant’s Kano Storage facility and it sent a delivery notification dated the 30th of April, 2008 to the Appellant and requested the Appellant to send its officers to confirm the delivery and that the Appellant did so and its Stores Manager, by
an email dated the 12th of May, 2008 and to which was attached an Inspection Report and also by a letter dated the 27th of May, 2008, confirmed that 6,384,469 liters of Low Pour Fuel Oil (LPFO) was supplied into its Kano Storage Tank and that it had accepted that quantity of product as it was within the range of its quality parameters from the dip result conducted; the delivery notification, the email with attachment and letter of confirmation were Exhibits O, L and F respectively.
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 of August, 2008, the sum of N70 Million on the 1st of November, 2008 and the sum of N23,058,160.63 on the 6th of 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; the Agreement was Exhibit K
?It was the
case of the Respondent before the Lower Court that the Appellant was liable to pay it for the 6,384,469 liters of Low Pour Fuel Oil (LPFO) supplied into the storage tanks of the Appellant in Kano and the receipt of which was confirmed and accepted by the officers of the Appellant. The case of the Appellant was that by the terms of LPFO Supply Agreement dated 12th of August, 2008, Exhibit K the amount LPFO to be taken as delivered to the Appellant is the quantity evacuated from the storage tanks at the time of loading it unto the trucks of the Appellant, and not the quantity supplied, and that it is for the quantity evacuated that the liability of the Appellant to pay arises. It was the case of the Appellant that in the course of the evacuation exercise, it was 5,321,113 liters of LPFO that was evacuated and that they addressed a letter dated 12th of November 2008 notifying the Respondent of this fact and of a shortfall of 1,053,995 liters; the letter was Exhibit N at the trial.
?Thus, one of the issues before the Lower Court was whether the Appellant was liable to pay for 6,384,469 liters of LPFO claimed by the Respondent or for 5,321,113liters asserted by
the Appellant. In resolving this issue, the Lower Court stated in the judgment thus:
“…exhibit O dated 30/4/2008 is a letter of delivery notification on LPFO supply into the Respondent’s Kano storage facility by the claimant which the Respondent by its letter dated 27/5/2008 acknowledged the receipt and confirmed to have been accepted by the company. The letter is Exhibit F which reads:
‘We will like to inform you about the result of the test of the sample of oil supplied to our Kano storage tank. The oil was confirmed to be within the range of our quality parameters and the quantity from the dip result and the calibration certificate provided 6,384,469 liters and it is what is being confirmed to have been accepted by the company. The difference can only be paid when we evacuate and confirmed to be there.’
Exhibit K dated 12/8/2008 which is an addendum to Exhibit A, the contract agreement between the parties dated 24/7/2007, also indicated therein that the supplier has supplied 5,384,459 liters of LPFO to the purchaser’s storage tanks in Kano. Although DW1 under cross examination denied that Exhibit K is a confirmation of Exhibit F but this
denial cannot be correct as both documents speak for themselves and Exhibit K is signed by both parties. … Where the correspondence exchanged between the parties are read together, it can be assumed that the parties have come to an agreement. DWI under cross examination admitted the figure of 6,384,469 liters as the quantity supplied to Kano storage facility based on dipping as reflected in Exhibit F. He also admitted that Exhibit K was signed by both parties and in Exhibit K it is also reflected therein that the supplier (claimant) has supplied 6,384,469 liters LPFO to the purchaser (Respondent) storage tanks in Kano. Although the doctrine of estoppel by conduct is a common law principle, it has been enacted into our body of laws as Section 151 of the Evidence Act and provides ‘when one person has by his declaration act or omission intentionally causes or permitted another person to believe a thing to be true and to act upon such belief neither he nor his representative in interest shall be allowed in any proceedings between himself and such person or such person’s representative interest to deny the truth of that thing.’
By Exhibit F and K the
Respondents have acknowledged the supply of 6,384,469 liters of LPFO at their Kano storage tanks by the claimant. Exhibit F is specific that the quantity supplied from the dip result is 5,384,469 liters. Exhibit F emanated from the Respondent and Exhibit K is signed by both parties, the parties are therefore bound by the agreement in Exhibit K and the Respondent by its conduct cannot disclaim its act. … The denial of the Respondent as to the quantity supplied by the claimant to their Kano storage tanks will not hold. This is because oral evidence cannot change the content of a document. …
… The Respondent also contended that by Exhibit N the claimant was notified on the shortage of LPFO supplied of Kano storage. Exhibit N emanated from the Respondent and it is dated 12/11/2008 addressed to the claimant. Paragraph 2 of Exhibit N reads ‘Meanwhile we evacuated 5,321,113 liters as against the 6,375,108 liters that was supposed to be in the tank, which indicates a shortage of 1,053,995 liters.’ It must be pointed out that the shortage complained of by the Respondent in Exhibit N dated 12/11/2009 is in respect of supply of 6,375,108 liters to Kano storage
tank and not in respect of supply of 6,384,459 liters which is in contention….” (See pages 554 to 557 of the records)
The relationship between the parties in this suit was governed by contracts reduced into writing. It is settled law that parties are bound by the contract they voluntarily enter into and cannot act outside the terms and conditions contained in the contract and neither of the parties to a contract can alter or read into a written agreement a term which is not embodied in it – African International Bank Ltd v. Integrated Dimensional System Ltd (2012) 17 NWLR (Pt.1328) 1, Lagos State Government v. Toluwase (2013) 1 NWLR (Pt.1336) 555. A Court too must treat as sacrosanct the terms of an agreement freely entered into by the parties as parties to a contract enjoy their freedom to contract on their own terms so long as same is lawful and if any question should arise with regard to the contract, the terms in any document which constitute the contract are the invariable guide to its interpretation. It is not the business of the Court to rewrite a contract for the parties and it should thus not add to or subtract from or import any provision into
the contract – Omega Bank (Nig) Plc v. O.B.C. Ltd (2005) 8 NWLR (Pt.928) 547, BFI Group Corporation v. Bureau of Public Enterprises (2012) 18 NWLR (Pt.1332) 209, Daspan v. Mangu Local Government Council (2013) 2 NWLR (Pt.1338) 203, Afrilec Ltd v. Lee (2013) 6 NWLR (Pt.1349) 1.
The original contract between the parties was constituted in the document dated the 24th of July 2007, Exhibit A. The Respondent was described as the Supplier and the Appellant as Purchaser in the contract and Clause 5 of Exhibit A stipulated the mode for determining quantity of LPFO for which the Appellant was liable to pay for and it reads thus:
“Quantity determination: As per Purchaser’s dip measurement/weighbridge at Purchaser’s storage tanks as per chart certificates of individual tanker trucks. All compartments of any tanker shall be sealed properly by Supplier.”
Clause 7 of Exhibit A dealt with payment and it stated that payment was to be done two weeks after delivery and confirmation by Ashaka Personnel. The Respondent did supply LPFO into the storage tanks of the Appellant in Kano and it wrote letter dated 30th of April, 2008, Exhibit O, to the Appellant to
send its personnel to go and determine and confirm the quantity supplied. The Appellant did send its personnel to determine and confirm the quantity and the Store Manager of the Appellant wrote two documents on the outcome of the exercise. The first was a report captioned “Inspection Report On Kano LPFO Storage Tank” which was attached to an email dated 12th of May, 2008 and both of which were tendered as Exhibit L and the second was a letter dated the 27th of May, 2008, Exhibit F. The report in Exhibit L read, in part, thus:
“Following the notification of Asharul Mubashirun Investment Limited via their letter dated 30th April, 2008 with a subject DELIVERY NOTIFICATION ON LPFO SUPPLY and the subsequent management approval and Constitution of a committee of three made up of safety, laboratory and stores manager. We had carried out a joint inspection at the tank site Sharada Kano.
We have three tanks where fuels were stored. The tanks were labeled 3, 5 and 7. There are additional three tanks within the compound. The tanks were calibrated last by MEMAK Calibrations Services Ltd … The tanks maximum capacities by the calibration are:
TANK 3 Height
11.1m 1,588,410litres
TANK 6 Height 13.6m 2,502,400litres
TANK 7 Height 13.5m 2,516,000litres
The dipping of the tanks was carried out with the aim of determining the content of LPFO stored in each tank. The following were the result of the dips:
TANK 3 Height 11.02m 1,572,669litres
TANK 6 Height 13.00m 2,392,000litres
TANK 7 Height 13.08m 2,419,800litres
The total volume of oil found in the tanks based on the dips as read from the calibration certificate is 6,384,459 litres. The supplier was said to have delivered 6,500,000 litres. There may be a dipping error, but I strongly recommend when it comes to payment we should pay only what was confirmed through the dip, the balance of the quantity should be paid when we transfer to site. …”
?
The letter Exhibit F read thus:
“RE: DELIVERY OF 6.5M LITRES OF LPFO AT KANO
We will like to inform you about the result of the test of the sample of oil supplied to our Kano storage tank. The oil was confirmed to be within the range of our quality parameters and the quantity from the dip result and the calibration certificate provided 6,384,469liters and it is what is being
confirmed to have been accepted by the company. The difference can only be paid when we evacuate and confirmed to be there.”
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 addressees 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 the 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 liters according to dipping. I agree that Exhibit L is confirming Exhibit F. …” (See page 70 of the records)
?Counsel to the Appellant again submitted that Exhibit F did not constitute an admission because it stated that the liability of the Appellant was dependent on the quantity of LPFO evacuated from the storage tank. Counsel predicated his submission on the last sentence in Exhibit F that “The difference can only be
paid when we evacuate and confirmed to be there.” Now, it is settled that in interpreting a document, the document must be read as a whole, and not parts in isolation, and that the different parts of the document must be interpreted in the light of the whole document and an effort must be made to achieve harmony amongst its different parts – Unilife Development Co Ltd v. Adeshigbin (2001) 2 SCNJ 116, Mbani v. Bosi (2006) 11 NWLR (Pt.991) 400, Adetoun Oladefi Nig. Ltd v. Nigerian Breweries Plc (2007) 1 SCNJ 375, Agbareh v. Mimra (2008) 2 NWLR (Pt.1071) 378, Nigerian Army Vs Aminu-Kano (2010) 5 NWLR (Pt.1188) 429. This principle also applies where the document is part of a series of documents on the 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 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 Million liters.
The two documents, Exhibit 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, 2008, 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.
?Exhibit K the LPFO Supply Agreement which the Appellant predicated its case on, was made on the 12th of August 2008, about two months after the right of the Respondent to the payment for the 6,384,469 liters of LPFO had crystallized. The document was described as an addendum to Exhibit A and it has two parts ? the recital and the operative part. A recital is defined as a preliminary statement in a contract or deed explaining the reasons for entering into it, or the background of the transaction, or showing the existence of
particular facts – Suu v. Jobak Nigeria Ltd (2012) LPELR-CA/IL/76/2010. It is usually preceded by the word “whereas”. It is settled that where a recital contains a statement of the existence of a fact, it constitutes an estoppel and the party or parties who made the statement in the recital are not allowed to deny subsequently the existence of that fact – Oyefeso v. University College Hospital Board of Management (1930) NCLR 94 at 103, Ejigini v. Ezenwa (2003) 16 NWLR (Pt.846) 420. One of the statements contained in the recital of Exhibit K is “The Supplier has supplied 6,384,469 liters of LPFO to Purchaser’s storage tanks at Kano.” The Respondent was the person described as the Supplier in the document and the Appellant was the person described as the Purchaser. Thus, this statement constitutes an admission on the part of the Appellant that the quantity of LPFO supplied and for which it was liable was 6,384,469 liters and it cannot be allowed to subsequently deny same.
?Counsel to the Appellant predicated his case on the terms contained in the operative part of Exhibit K. A read through these operative terms show that they amounted to variation of the
terms of the original contract, Exhibit A, as they sought to alter some the existing terms of Exhibit A and to add some additional terms. Variation of contract involves a definite alteration of contractual obligations by the mutual agreement of both parties. Variation is analogous to the entry by the parties into a new contract. The requirements of offer, acceptance and consideration are thus imposed. In Goss v. Lord Nugent 110 ER 713 at 716, the Court stated:
“By the general rules of the common law?it is competent to the parties at any time before breach of it, by a new contract not in writing, either altogether to waive, dissolve, or annul the former agreements, or in any manner add to, subtract from or vary or qualify the terms of it and thus make a contract…”
For a variation to be effective, there must be a valid and subsisting contract on foot between the parties; there must be some form of consensus between the parties as to the obligations which are to be altered; and it must be supported by consideration – Oriloye v. Lagos State Government (2014) LPELR-CA/L/839 /2007, Unity Bank Plc v. Olatunji (2014) LPELR-CA/K/300/2012. A mutual
abandonment of the existing rights of the parties under the agreement between them is sufficient consideration to support a variation of the agreement – Ekwunife v. Wayne (WA) Ltd (1989) 5 NWLR (Pt.122) 422 and Prospect ile Mills Ltd v. Imperial Chemical Industries Plc England (1996) 6 NNLR (Pt.457) 668. Also, consideration will be said to have been provided where a party would derive a superadded benefit from the contract by reason of the variation – Williams v. Roffrey Bros & Nicholas (Contractors) Ltd (1991) 1 QB 1. However, where the agreement is made exclusively for the benefit of only one party, or where, although it is capable of benefiting both parties, the agreement is actually made for the benefit of one alone, it will not be effective to vary the original contract since no consideration was present – Vanbergen v. St Edmund’s Properties Ltd (1933) 213 223. Also, where one party has fully performed his side of the contract and the other party’s performance has fallen due, no variation can be effective unless it imposes new obligation on the latter. An undertaking to perform an existing obligation does not amount to consideration to make the
variation of a contract effective.
?As stated earlier, the Respondent had performed its side of the contract by supplying 6,384,469 liters of LPFO into the Kano Storage tanks of the Appellant and the obligation of the Appellant to pay therefor crystallized on or about the 12th of June, 2008, two months before the making of Exhibit K. Reading through the contents of the operative part of Exhibit K, it is obvious that it was made for the benefit of the Appellant. It did not impose any new obligation on the Appellant. It did not even insist on the performance of the existing obligation of the Appellant to pay for the 6,384,469 liters of LPFO supplied by the Respondent. It rather diluted the performance of the obligation by changing the way and basis upon which the Appellant was to make the payments, which were already overdue. It thereby watered down the benefits of the Respondent under the existing contract. The terms in the operative part of Exhibit K could thus not have been effective to vary the terms of the original contract, since there was no consideration present therein. The huffing and puffing done by the Counsel to the Appellant on the
strength of these operative parts of Exhibit K thus went to no issue. The contents of Exhibit N upon which the Appellant based the bulk of his case, being a document issued on the basis of the operative terms of Exhibit K, cannot serve any useful purpose in this matter.
It is clear from the terms of agreement in Exhibit A and from the contents of Exhibit L, F and the recital part of Exhibit K that it was the 6,384,469 liters of LPFO supplied by the Respondent into the storage tanks of the Appellant that was confirmed and accepted by the Appellant as the quantity delivered to it and for which it was liable to pay. The pleadings and the evidence before Lower Court supported the finding of the Lower Court on the issue. This issue for determination is resolved also against the Appellant.
Issue Four
The fourth issue for determination is whether, based on the oral and documentary evidence led by the parties, the Lower Court was correct in holding that the initial agreed price per liter, N59.50, was subsequently reviewed by the parties, and, if so, that the review was to the price of N69.50 and not N75.00. This issue, apart from arising from some
of the complaints of the Appellant in this appeal, is also the issue arising on the cross-appeal. Thus, a resolution of the issue should resolve the cross-appeal as well.
It must be pointed out that Counsel to the parties agreed in their briefs of arguments “that the finding that there was a price review to N69.50 for the Kano Storage is perverse as it was contrary to the pleadings and evidence of the parties.” The case of the Appellant was that there was no price review from the N59.50k per liter agreed in the original contract for supply to the Kano Storage facility while the case of the Respondent was that there was a price review to N75.00 per liter for the supply to Kano Storage facility. In arguing his case on this issue in this appeal, Counsel to the Appellant referred to the pleadings and evidence of the parties and stated that the transaction between the parties was governed by Exhibits A and K and that by Clause 9 of Exhibit K no alteration or variation of the terms shall be effective unless made in writing by both parties and accepted by the authorized signatories of both parties and that there was nothing presented before the Lower Court
showing the acceptance of the alleged price review by the authorized signatories of the parties and that a Court cannot bring into a contract extraneous terms not agreed upon by the parties; he referred to the case of Kaydee Ventures Ltd v. Minister FCT (2010) 7 NWLR (Pt.1192) 171.
?Continuing on the issue in the cross respondent’s brief of argument, Counsel conceded that the Respondent pleaded that it made a request for a price review and which request was approved by the Appellant to a price of N75.00 and that the Respondent led evidence thereon and tendered the letters of request and approval as Exhibits M and E respectively, but stated that the request of the Respondent was for a review of the price for supply Kano Storage to N69.50 per liter and for Ashaka Storage to N75.00 per liter while the approval given was for a just price review of N75.00 per liter without stating for which Storage facility the increased figure was for. Counsel queried that why will the Appellant approve N75.00 for supply to the Kano Storage facility as against the N69.50 asked for and stated that an examination of the contract documents shows that the distinction had always
been made between deliveries to Ashaka and deliveries to Kano and for which there were price differentials and that the silence of Exhibit E on what storage the approved price review of N75.00 was for rendered the document vague and it becomes an issue of interpretation to determine the intention of the parties.
?Counsel stated that in interpreting are document, it must be considered along with the other documents on the contract and on the issue, Exhibit A, K and particularly Exhibit M and that in Exhibit K which was made subsequent to Exhibit E the price mentioned for deliveries to Kano was N65.50 and he again queried why will the Appellant approve N75 per liter in February 2008 and approve N65.50 in August of 2008. Counsel stated that the onus was on the Respondent to prove the price it was claiming the LPFO was supplied for per liter, and not on the Appellant to disprove and that the weakness of the case of the Appellant did not help the Respondent, and that the Respondent failed to lead credible evidence to prove its case and that the issue for determination must thus be resolved in favour of the Appellant/cross respondent and he referred to the cases
of Obajimi v. Adedeji (2008) 3 NWLR (Pt.1073) 1 and Ahmed v. CBN (2013) 2 NWLR (Pt.1339) 524.
?In response, Counsel to the Respondent referred to the pleadings of the parties and stated that while the case of the Respondent was that the price for the supply of the LPFO to Ashaka Storage facility and the Kano Storage facility, both of the Appellants, was reviewed to N75.00 per liter flat and that it was the case of the Appellant that the price review did not include supply to the Kano Storage facility and that the supply to that facility was at the original contract price of N59.50 per liter. Counsel stated that in proving its case before the Lower Court, the Respondent tendered the letter of approval of the increment, Exhibit E, and the Appellant tendered the letter by which the request for increment was made, Exhibit M, and that the content of Exhibit E was clear and unambiguous and it stated a price increase for the supply of LPFO to N75.00 per liter without differentiating whether the supply was to Ashaka or to Kano and that the testimony of the defence witness that the price review was not for supplies to Kano cannot be allowed to alter the clear
contents of Exhibit E and he referred to the cases of Baliol (Nig) Ltd v.Navcon (Nig) Ltd (2010) 16 NWLR (Pt.1220) 619 and UBN v. Ozigi (1994) 3 NWLR (Pt.333) 385. Counsel urged this Court to resolve this issue for determination in favour of the Respondent/cross appellant and to grant the cross-appeal on that basis.
In dealing with the issue of price and price review, the Lower Court stated in the judgment thus:
“The DW1 in his testimony deposed that the LPFO supplied by the claimant to the Respondent’s storage tanks in Kano does not amount to N478,835,175 because there was no variation of pricing in respect of delivery to Kano storage tanks. Exhibit M which is the letter from the claimant to the Respondent requesting for price review clearly stated the reviewed amount as N69.50 per liter for delivery to Kano storage and N75 per liter for delivery to Ashaka Storage. In its reply Exhibit E the Respondent approved the price review of N75 per liter but was silent on the price review for Kano storage at N69.50k per liter. However, the Respondent by its conduct in Exhibits F, K and L accepted the delivery of 6,384,459 liters based on the dips as
read from the calibration certificate Exhibit M the request for price review of N69.50 per liter for delivery to Kano storage and N75 per liter for delivery to Ashaka storage is dated 27/2/2008 while Exhibit L the email is dated 12/5/2008, Exhibit F is dated 27/5/2008 and Exhibit K is dated 12/8/2008. By Exhibit F, K and L the Respondent is presumed to have accepted the price review of Kano Storage at N59.50 per liter. …” (see pages 557 to 558 of the records)
?Reading through the pleadings of the parties before the Lower Court, neither of them pleaded or made a case for the sum of N69.50 per liter as the price review for delivery of LPFO to the Kano Storage facility of the Appellant by the Respondent. The case of the Respondent was that the price for the supply of the LPFO to Ashaka Storage facility and the Kano Storage facility, both of the Appellant, was reviewed to N75.00 per liter flat and it was the case of the Appellant that the price review did not include supply to the Kano Storage facility and that the supply to that facility was at the original contract price of N59.50 per liter. Neither of the witnesses that testified before the Lower Court
gave evidence of a price review to N69.50 per liter. It is correct that in Exhibit M, the Respondent proposed a price review of N69.50 per liter for the supply to Kano but there was no evidence from either party that this was the sum accepted by the Appellant. Exhibit F and L said nothing about the price at which the supply of LPFO to the Kano storage tank of the Appellant was made by the Respondent while Exhibit K mentioned a price of N65.50 per liter, so none of these Exhibits supported the price of N69.50 per liter. The above finding of the Lower Court on a price review to N69.50 per liter had no foundation either in the pleadings or in the evidence led by the parties. It is thus perverse and must be set aside – Nobis-Elendu v. Independent National Electoral Commission (2015) 16 NWLR (Pt.1485) 197.
?As stated at the outset of the deliberations in this appeal, it was not in contest between the parties that, sequel to the making of Exhibit A, which gave the Respondent six weeks to supply the agreed LPFO, the Respondent wrote letters at different times requesting for extension of the six weeks supply period and the Appellant conceded the requests and the
letters of the Appellant dated the 26th of July, 2007, 24th of October 2007 and dated 7th of February, 2008 consenting to the Respondent’s requests for extension were Exhibits B, C and D. It was also not in contest that due to an increment in the price of the product, the Respondent wrote a letter dated the 27th of February, 2008 requesting for a price review and it proposed the price of N69.50 pet liter for supplies to Kano and N75.00 per liter for supplies to Ashaka and that by a letter dated the 28th of February 2008, the Respondent approved a price increase to the sum of N75.00 per liter; the letter requesting for price review and that approving the review were Exhibits M and E respectively at the trial. The contest in the matter was the interpretation to be placed on the contents of Exhibit M and E.
Exhibit M read thus:
“REQUEST FOR PRICE REVIEW
RE: LPFO SUPPLY (10,000 MT)
In regards to the above subject matter, we wish to request for price review for the supply of LPFO, amounting to N69.50 per liter for delivery to Kano Storage and N75 per liter for delivery to Ashaka storage, all inclusive of 5% withholding tax.
This
request was due to market dynamics, such as price hike of the product, increase in the cost of transportation as a result of artificial scarcity and high cost of diesel.
We anticipate your favourable response in good time for the successful consummation of the transaction….”
Exhibit E, the response, read thus:
“RE: REQUEST FOR PRICE REVIEW FOR 10,000MT of LPFO
Further to your request dated 27th of February, 2008 on the above subject, management has approved the request to increase price of LPFO to N75 per liter. Kindly expedite action to start delivering.”
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 the operative words in the document their simple, ordinary and actual grammatical meaning – Union Bank of Nigeria Plc v. Ozigi (1994) 3 NWLR (Pt 333) 385, Isulight (Nig) Ltd v. Jackson (2005) 11 NWLR (Pt 937) 631, Egwunewu v. Egeagwu (2007) 6 NWLR (Pt 1031) 431. 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 a one price review of N75 per liter for all the supplies of the LPFO.
?The Appellant did not deny authoring the Exhibit E and the onus was on it to prove that the wordings of the document were meant to convey another meaning other than their actual grammatical meaning. The document was signed by one Bello Mohammed, the Purchasing Manager of the Appellant at the time, and he was not called by the Appellant to give evidence on what meaning, apart from their actual grammatical meaning, the words he wrote were meant to convey and no explanation was given by the Appellant for his absence. It is clear that the letter conveyed the approval of the Management of the Appellant and no one in the Management of the Appellant at that time was called to testify on whether what the letter conveyed was not what was actually approved by the Management. The sole witness of the Appellant was Danladi Alhassan, its current Purchasing Manager, and he made no reference to Exhibit E and said nothing about
its import. All he said in his written deposition on price variation was that the cost of the total supply made by the Respondent to the tanks of the Appellant in Kano did not amount to the figure claimed by the Respondent “because there was no variation of pricing in respect of delivery to Kano storage tanks.” The Appellant thus led no cogent evidence to show that the contents of Exhibit E meant otherwise than their actual grammatical meaning. Exhibit K referred to by the Counsel to the Appellant came into effect on the 12th of August 2008, almost six months after Exhibit E and it cannot thus be useful in deducing what the words in Exhibit E conveyed at the time it was written.
?What Counsel to the Appellant did in his briefs of arguments was to pose queries such as, why will the Appellant approve N75.00 for supply to the Kano Storage facility as against the N69.50 asked for? And why will the Appellant approve N75 per liter in February 2008 and approve N65.50 in August of 2008? It is not the duty of this Court to answer such queries as to do so will be taking this Court into the realm of speculations, of speculations, an act that is a taboo for this Court
to do. It is evident that from the pleadings of the parties and from the evidence led, that there was an agreement between the parties to review the price of supply of the LPFO contained in the original contract, Exhibit A” and the review was from the price of N59.50 per liter for supply to the Kano Storage facility and N65.00 per liter for the supply to Ashaka Storage facility to a flat rate of N75.00 per liter for all supplies. This issue for determination is also resolved against the Appellant who is the cross respondent in the cross-appeal.
With these findings by this Court, it means that the Respondent was entitled to be paid by the Appellant for the supply of 6,384,469 liters of LPFO made to its Kano Storage tanks at the price of N75 per liter. The defence witness stated under cross-examination that he was a Chartered Accountant by training and profession and that if one multiplied 6,384,469 liters by N75.00 it would give N478,835,175.00 and that if the sum of N352,058,160.60k already paid to the Respondent was subtracted from this figure, it would leave a balance of N126,777,01.5.00. This is the amount that is outstanding in favour of the
Respondent. The Lower Court was thus in error when it awarded the sum of N91,662,435.44k as the outstanding balance due to the Respondent and this award is liable to be set aside and replaced with the award of N1,26,777,015.00.
In conclusion, the appeal of the Appellant fails and it is hereby dismissed while the cross appeal of the Respondent succeeds and it is hereby allowed. The judgment of the High Court of Kano State in Suit No K/517 /2012 delivered by Honorable Justice Tani Yusuf Hassan on the 26th of September,2013 is hereby affirmed in part. The portions of the judgment asserting the price at which the Respondent supplied LPFO to the Appellant as N69.50 per liter and awarding the sum of N91,662,435.44k to the Respondent as the outstanding balance due from the Appellant are hereby set aside and in their place are inserted the price of N75 per liter and an award in the sum of N126,777,015.00 as the outstanding balance due. For the avoidance of doubt, judgment in this appeal is hereby entered as follows:
i. It is hereby declared that the Respondent successfully supplied the Appellant with 6,384,469 liters of Low Pour Fuel Oil (LPFO) into its
(Appellant’s) Kano Storage facility or tanks at the price of N75 per liter.
ii. It is hereby declared that the Appellant paid the Respondent the sum of N352,058,160.60 out of a total, sum of N478,835,175.00 leaving a balance of N126,777,014.37 unpaid to the Respondent.
iii. It is hereby declared that the Respondent is entitled to payment of the outstanding N126,777,014.37 from the Appellant being the outstanding balance due on the LPFO supplied to the Appellant.
iv. The Appellant is hereby directed to pay to the Respondent the sum of N126,777,014.37 being the outstanding balance due for 6,384,469 liters of Low Pour Fuel oil (LPFO) the Respondent supplied to the Appellant into its Kano storage facility or tanks.
v. The Respondent is awarded 10% per annum as interest on the judgment sum from the date of judgment was entered in the Lower Court, 26th of September 2013, until the entire judgment sum is paid or liquidated.
vi. The Respondent is awarded cost of the action in the Lower Court in the sum of N60,882.00 being the cost of filing the suit.
The Respondent is awarded the costs of this appeal and of the cross appeal assessed at
N100,000.00. These shall be the orders of this Court.
UWANI MUSA ABBA AJI, J.C.A.:?I have read in draft the lead judgment of my learned brother, Habeeb O. A. Abiru, JCA, just delivered.
I agree with the reasoning and conclusions of my learned brother that the appeal fails and it is hereby dismissed. The Cross Appeal of the Respondent succeeds and it is hereby allowed. The judgment of the Lower Court of Kano State in Suit No. K/517/2012 delivered on the 26th of September, 2013 is hereby affirmed in part. The portions of the judgment asserting the price at which the Respondent supplied LPFO to the Appellant as N69.50 per liter and awarding the sum of N91,662,435.44k to the Respondent as the outstanding balance due from the Appellant are hereby set aside and in their place is inserted the price of N75 per liter and an award in the sum of N126,777,015.00 as the outstanding balance due.
I also abide by the consequential order as to costs.
AMINA AUDI WAMBAI, J.C.A.: I have had the advantage of reading before now, the lead Judgment delivered by my learned brother, Habeeb Adewale Olumuyiwa
Abiru, JCA. My learned brother has fully and admirably dealt with the issue in this appeal. I entirely agree with his exposition of the Law and I endorse same as mine as well as the conclusions therein reached. I, too, dismiss the appeal as lacking in merit and abide the Order as to costs made in the lead Judgment.
Appearances
A. B. Mahmoud, SAN with him, Oseni Sefiullahi, Fariha Abdullahi, Maryam Jaji Suleiman and I. Y. AbdulRasheedFor Appellant
AND
Musa Aliyu with him, Hadiza A. UsmanFor Respondent
