CHIDA INTL HOTEL LTD v. IBN INTL LTD & ANOR (2022)

CHIDA INTL HOTEL LTD v. IBN INTL LTD & ANOR

(2022)LCN/16264(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, February 10, 2022

CA/A/100/2015

Before Our Lordships:

Peter Olabisi IgeJustice of the Court of Appeal

Elfrieda Oluwayemisi Williams-DawoduJustice of the Court of Appeal

Danlami Zama SenchiJustice of the Court of Appeal

 

Between

CHIDA INTERNATIONAL HOTEL LIMITED APPELANT(S)

And

1. IBN INTERNATIONAL LIMITED 2. JOHN J. ULOH EDOMOH RESPONDENT(S)

 

RATIO:

THE CONSIDERATION OF THE TERMS OF THE CONTRACT

It is the contention of the Appellant’s Counsel that the most important exhibit which would have aided the trial Court to arrive at a just conclusion is Exhibit B which contains the terms of the contract but was regrettably not considered, he cited clause 4 of Exhibit B, which DW1 admitted under cross-examination that he sent his Engineers to service the generator. He submitted that this admission corroborates Exhibit D and Exhibit F and the testimony of PW1. He relied on MARDI V YUSUF, (2007) 17 NWLR (pt 1169) PAGE 162 AT 197 -198 PARAGRAPHS F-A. DANLAMI ZAMA SENCHI, J.C.A. 

THE EFFECT OF A BREACH OF ANY TERM OF A CONTRACT

Learned Counsel contended that the effect of a breach of any term of the contract is that the aggrieved party is at liberty to treat the contract as having been terminated. Thus, he submitted that the Respondents, having breached the terms of the contract, are not entitled to the order of specific performance ordered by the trial Court. He cited the case of VINZ INT’L (NIG) LTD V. MOROHUNDIYA (2009) 11 NWLR (PT. 1153) PAGE 562 AT 579 AND 585, OKEGIE V. EPOYUN (2010)11 NWLR (PT. 1206) 456 at 479 and BALIOL (NIG) LTD V. NAVCON (NIG) LTD (2010)16 NWLR (PT. 1220) 619 at 633. DANLAMI ZAMA SENCHI, J.C.A. 

NON INTERFERENCE OF AN APPELLATE COURT IN THE EVALUATION OF THE EVIDENCE ADDUCED BY THE TRIAL COURT

The law is trite that, where a trial Court had evaluated the evidence adduced by the parties in reaching a decision, an Appellate Court cannot interfere or disturb such exercise or judicial duty unless it can be established that such exercise of judicial duty has not been properly carried out, or if carried out not properly done or in violation of settled principles of law. See IKE V STATE (2001) 14 NWLR (PT 723) PAGE 221 AT 255; MADAKI V CIROMA & ORS (2016) LPELR 40268 (CA).
In the case of IKE V STATE (supra), the Supreme Court of Nigeria held thus:
“It cannot be over emphasized that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of the Court of trial which saw, heard and assessed the witnesses as they testified in the witness box. See AKINLOYE & ANOR V & EYIYOLA & ANOR (1968) NMLR 92.” DANLAMI ZAMA SENCHI, J.C.A. 

DANLAMI ZAMA SENCHI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of the Federal Capital Territory, Abuja delivered by Hon. Justice Maryann E. Anenih in Suit No. FCT/HC/CV/1417/09 on the 26th day of June, 2014.

Briefly, the facts that led to this case on appeal, as disclosed by the record, are that the Plaintiff/Appellant and the Defendants/Respondents executed a contract for the supply, installation and maintenance of a brand new generating set by the Defendants/Respondents on the premises of the Plaintiff/Appellant, on terms and conditions agreed to by parties, which terms and conditions are alleged to have been breached by both parties. In view of these allegations the Appellant approached the lower Court.

The Appellant (Plaintiff at the lower Court) commenced this action via a Writ of Summons and Statement of Claim accompanied with other processes filed on the 26th May, 2009, and claimed against the Respondents (Defendants) as follows:
(1) The sum of N10,000,000 (Ten Million Naira) paid to the Defendants for the generating set.
​(2) The sum of N2,000,000 (Two Million Naira) as general damages and cost of the suit.
(3) An order of Court directing the Defendants to immediately remove the generating set from the premises of the Plaintiff.

On service of the Appellant’s originating processes in this suit on the Respondents, on 25th August, 2009, the Respondents filed their Statement of Defence/counter-claim wherein they counter-claimed against the Appellant as follows:-
(1) The sum of N20,000,000 (Twenty Million Naira) which is the outstanding balance of the generating set supplied to the Defendant.
(2) The sum of N500,000.00 (Five Hundred Thousand Naira) only been the service charge for transport, accessories for installation and installation of the generating set.
(3) The sum of N3,000,000 (Three Million Naira) only as a general damages and cost of this suit.
(4) An order of Court against the Plaintiff/Defendant for specific performance of the contract in accordance to the purchase/job order dated 16th June, 2008.

Pleadings having been filed and exchanged between the parties, on the 8th December, 2011, the Appellant (as Plaintiff) at the lower Court opened its case for hearing by calling one witness Joseph Ataimu Ameh as PW1. PW1 adopted his Witness Statement on Oath as his evidence-in-chief and was later cross-examined and discharged. The Respondents (as Defendants/Counter-Claimants) on 6th March, 2012 opened their defence and DW1 testified on behalf of the Respondents in both their defence to the main case and the counter-claim. He adopted his Witness Statement on oath as his evidence in Chief. He was cross-examined and discharged.

Both the Appellant and the Respondents in the lower Court tendered in evidence documents and they were admitted in evidence in support of their respective cases. At the close of evidence by both parties, Final Written Addresses were filed and exchanged between the parties before the Lower Court.

On 26th March, 2014, the lower Court delivered its judgment. (see pages 202-221 of the Record of Appeal)

Dissatisfied with the decision of the lower Court, the Appellant filed a Notice of Appeal dated the 13th day of August, 2014 and filed on 21st August, 2014 with the following Grounds of Appeal (reproduced hereunder without their particulars) as follows:
GROUND ONE:
The learned trial Judge erred in law by not considering the totality of the documents tendered in evidence by the Plaintiff (Appellant) in reaching her judgment.
GROUND TWO:
The learned trial Judge misdirected herself by holding that the Plaintiff (Appellant) is using the generating set supplied by the Defendants (Respondents) without evaluating the complaint of the Appellant to the effect that the generating set supplied did not function uninterruptedly for the period agreed and failed to function for more than two weeks uninterrupted.
GROUND THREE:
The judgment of the lower Court delivered on the 26th of June, 2014, seven (7) months after the case was closed is against the weight of evidence adduced at trial.
(See pages 222 – 224 of the Record of Appeal)

The Record of Appeal was compiled and transmitted to this Court on 13th March, 2015 which was deemed duly compiled and transmitted on the 14th March, 2017.

On the 22nd June, 2015, the Appellant filed its Appellant’s Brief of Argument which Brief of Argument was deemed duly filed and served on 14th March, 2017 in which it formulated and argued two issues for determination from the three Grounds of Appeal to wit:
1. Whether or not failure by the learned trial Judge to evaluate the totality of evidence adduced before the trial Court did not occasion miscarriage of justice that would warrant the judgment arrived there from being set aside.
2 Whether or not the Respondents were in breach of the terms of contract as stipulated in Exhibit B and whether such entitled the Appellant to revoke the contract?

On 30th September, 2021, the Respondents filed their Respondents’ Brief of Argument in which they formulated two Issues for Determination to wit:
1. Whether or not the learned trial Judge fully evaluated the totality of the evidence adduced and therefore was right in dismissing the Appellant’s claim.
2. Whether or not the learned trial Judge was right in granting the Respondents’ counter-claim having recourse to the totality of evidence before the trial Court.

RESOLUTION OF ISSUES
This appeal will be determined based on the issues submitted for determination by the Appellant and the two issues shall be considered and determined together while the issues distilled by the Respondents shall be considered thereunder.

ISSUES ONE AND TWO
Whether or not the failure by the learned trial judge to evaluate the totality of evidence adduced before the trial Court did not occasion miscarriage of justice that would warrant the judgment arrived therefrom being set aside? Whether or not the Respondents were in breach of the terms of contracts as stipulated in Exhibit B and whether such entitled the Appellant to revoke the contract?

In the Appellant’s Brief of Argument at paragraphs 4.1 – 4.17 of pages 3-7, learned Counsel submitted that the learned trial Judge erred in law by not considering the totality of the documents tendered in evidence by it in reaching her judgment. He submitted that the Appellant tendered various exhibits to aid the Court through evaluation of same in arriving at a just determination of the rights of the parties before it. According to Counsel to the Appellant, there cannot be a finding of fact by a trial Court without the evaluation of evidence before it. He relied on the case of ANZAKU V GOV. NASSARAWA STATE, (2005) 5 NWLR (pt 919), 448 at 496 PARAGRAPHS D-G.

Learned Counsel submitted that the Appellant through PW1 tendered Exhibit A which is a proposal and quotation for the supply, installation and maintenance of a brand new generating set as well as Purchase/Job order marked  as Exhibit “B” which contained the fundamental terms of the contract between it and the Respondents.

Under cross-examination, according to Counsel to the Appellant, PW1 testified thus:
“We refused to give him money because it wasn’t working and he dismantled it… The generators are there, occupying our space and dismantled.”

Learned Counsel submitted that the testimony of PW1 further corroborated with Exhibit “D” and “F”. He posited that the learned trial Judge however chose to consider and rely on Exhibit “H” tendered by the Respondents without having recourse to the other relevant exhibits forwarded by the Appellant. He relied on the case of HENSHAW V EFFANGA, (2008) 11 NWLR (pt 1151) PAGE 65 AT PAGE 87 PARAGRAPH H., ORJI V PDP (2007) KJ NWLR (Pt. 1161) 310 at 394.

Learned Counsel submitted that the learned trial Judge erred in law when she chose to believe the evidence of DW1 and relied heavily, if not solely, on Exhibit H without ascribing any probative value to other pieces of evidence before it, such as Exhibits A, B, D and F respectively.

He relied on the cases of AFOLABI V OGUNLOWO (2008) ALL FWLR 537, BALOGUN V AGBOOLA (1974) 1 ALL NLR (pt2) 66, WOLUCHEM V GUDI (1981) 5 SC 91.

Learned Counsel to the Appellant contended that the learned trial Judge in her judgment failed to consider the content and implication of Exhibit D which is a letter written by the Appellant to the Respondents complaining of the epileptic performance of the generator.

It is the contention of the Appellant’s Counsel that the most important exhibit which would have aided the trial Court to arrive at a just conclusion is Exhibit B which contains the terms of the contract but was regrettably not considered, he cited clause 4 of Exhibit B, which DW1 admitted under cross-examination that he sent his Engineers to service the generator. He submitted that this admission corroborates Exhibit D and Exhibit F and the testimony of PW1. He relied on MARDI V YUSUF, (2007) 17 NWLR (pt 1169) PAGE 162 AT 197 -198 PARAGRAPHS F-A.

As to whether or not the Respondents breached the contract, at paragraphs 5.1-5.20 of pages 8-12 of the Appellant’s Brief of Argument, learned Counsel submitted that a contract is defined as an agreement which the law will enforce or recognize as affecting the legal rights and duties of the parties.

He cited the cases of ORIENT BANK (NIG) PLC V. BILANTE INT’L LTD (1997) 7 NWLR (pt 515) 37 at 97, BEST (NIG) LTD V B.H (NIG) LTD (2011) 5 NWLR (PT 1239) 95.

In the instant case, learned Counsel to the Appellant submitted that there exists a valid contract between the parties and he relied on the case of BABINGTON ASHAYA V. V.I.M. A ENT. (NIG) LTD (2011) 10 NWLR (PT. 1256) 479.

He submitted that Exhibits A and B are the offer and acceptance (job order) by the Respondents and the Appellant, with a consideration of N30,000,000.00 which the Appellant had paid N10,000,000.00 to the Respondents as evidenced in Exhibit C. He therefore submitted that a valid contract in all its ramifications exists between the Respondents and the Appellant. He referred to BILANTE INT’L LTD V N.D.I.C (supra).

Learned Counsel therefore submitted that the crux of the matter is to ascertain if from the totality of the evidence available to the trial Court, there has been breach of terms of the said contract by the Respondents. He submitted that a breach occurs when a party to the contract without lawful excuse fails or neglects or refuses to perform an obligation in the contract or incapacitates himself from performing the same. He relied on the case of BEST (NIG) LTD V B.H (NIG) LTD (supra) ADEOTI V. AYORINDE (2001) 6 NWLR (pt 709) 336.

Learned Counsel contended that the effect of a breach of any term of the contract is that the aggrieved party is at liberty to treat the contract as having been terminated. Thus, he submitted that the Respondents, having breached the terms of the contract, are not entitled to the order of specific performance ordered by the trial Court. He cited the case of VINZ INT’L (NIG) LTD V. MOROHUNDIYA (2009) 11 NWLR (PT. 1153) PAGE 562 AT 579 AND 585, OKEGIE V. EPOYUN (2010)11 NWLR (PT. 1206) 456 at 479 and BALIOL (NIG) LTD V. NAVCON (NIG) LTD (2010)16 NWLR (PT. 1220) 619 at 633.

It is further submitted by the Appellant’s Counsel that the learned trial judge erred when she held that the Respondents were not in breach of the contract they entered with the Appellant, notwithstanding the evidence before her. He therefore argued that the Appellant is entitled to a refund of the part-payment made to the Respondent of the sum of N10,000,000.00. He relied on the case of NWAOLISAH V. NWABUFOH (2011)14 NWLR (PT. 1268) PAGE 6150 (SC).

For the Respondents on the other hand, at paragraphs 3.1.2 – 3.3.16 of pages 5-12 of the Respondents Brief of Argument, learned Counsel submitted to the effect that in the trial Court, the Appellant called one witness as PW1 and tendered Exhibits A, B, C, D, E, F and G, while the Respondents called one witness DW1 and tendered in evidence Exhibit H. Then learned Counsel submitted that the trial Judge was right when he held that all other documents tendered in this case predates Exhibit H which was the last letter written by the Appellant to the Respondents. He referred me to pages 49 of the Record of Appeal.

Learned Counsel submitted that Exhibit H was written by the Appellant as a reply to Exhibit E. The Respondents’ Counsel therefore submitted that the Appellant ought to have made payment of the consideration of the contract on or about the 18th September, 2008 but it failed to do so, thereby breaching their agreement with the Respondents.

Learned Counsel submitted that the trial Court thoroughly evaluated Exhibits D and H before arriving at its decision that there was no evidence of the Generator breaking down. He relied on the cases of WACHUKWU V. OWUNWANNE (2011) 14 NWLR (PT 1266) PAGE 1 AT 39 PARAGRAPHS A-B, AKINTOLA V BALOGUN (2000) 1 NWLR (pt 642) 532 AT 546 PARAGRAPHS, G-H DURU V NWOSU (1989) 4 NWLR (PT113) PAGE 24.

Learned Counsel to the Respondents submitted that the surrounding circumstances in this case centered on the evaluation of Exhibits B, D, E and H which the Appellant by Exhibit B ought to make full payment to the Respondents within six weeks of test running the generator but failed to do so, thereby breaching the agreement, Exhibit B. He referred me and relied on the Record of Appeal at page 218. However, learned Counsel argued that the trial Court found that all other documents in this case predates Exhibit H which is the position of the parties.

Learned Counsel to the Respondents submitted that the trial Court was right in holding that Exhibit H predates other documents, pursuant to which the Appellant issued a cheque of N3,000,000.00 to the Respondents on 23rd September, 2008 which was cleared and another cheque of N7,000,000.00 dated 29th September, 2008 which bounced.

Learned Counsel to the Respondents further submitted that the trial Court made a finding of fact on the credibility of the Appellant’s witness, PW1, where she held that PW1 tried to deny the existence of Exhibit H which was admitted through the Counter Claimant’s witness, DW1 and referred the Court to page 216 of the Record. He also relied on the case of SILVERBIRD GALLERIA LTD V. NIYOD CONSTRUCTION (NIGERIA) LTD (2016) ALL FWLR (PT 846) PAGE 241 AT 269 PARAGRAPHS G-H on the effect of admission. He therefore contended that the Appellant cannot approbate and reprobate but must be consistent in the presentation of his case.

He cited the case of ASABORO & ANOR V PAN OCEANIC OIL, CORP. (NIG) LTD &ANOR (2017) 7 NWLR (PT. 1553) 43.

He submitted that the admission of the Appellant on Exhibit H was clear and unequivocal and he relied on the case of IRONKWE V U.B.A (2017) ALL FWLR (PT 879) page 650 at 685 paragraphs E-F and further referred to page 21 of the Record of Appeal on the finding on the trial Court.

Finally, learned Counsel to the Respondents submitted that the Appellant’s argument that Exhibit D which predates Exhibit H is a more probable position of parties is speculative and speculation has no place in our Courts, hence the trial Court was right to have refused to tow that position. He relied on IKENTA BEST (NIG) LTD V. A.G. RIVERS STATE (2008) LPELR 1476 (SC), ADISA V THE STATE (1991) 1 NWLR (PT 168) 490 at 500, ARCHIBONG V. ITA (2004) ALL FWLR (PT 197) 930.

Now it appears there is no dispute between the parties that by Exhibit A and B, the Appellant and the Respondents entered into an agreement for the supply of 1250KVA MTU Generating Set (sound proof). It is also not in dispute that by the testimonies of PW1 and DW1, Exhibit B executed by the parties contains terms and conditions as follows:
1. Five years guarantee from date of installation.
2. Payment – six weeks after installation and test running.
3. Payment mode cheque or certified bank draft whichever is at the hotel disposal.
4. The generator will be expected to operate for five continuous months without requiring any form of mechanical assistant/serving.

In other words, by Exhibits A and B it defined the legal right and duties of the parties to the contract agreement. See ORIENTS BANK (NIG) PLC V BILANTE INT’L LTD (1997) 7 NWLR (pt 515) 37 at page 97.

A valid contract in law must consist of the following:
1. Offer
2. Acceptance
3. Consideration
4. Intention to create legal relationship and
5. Capacity to contract.
These five ingredients are autonomous units in the sense that a contract cannot be formed if any of them is absent. See B. F. I. GROUP V. BUREAU OF PUBLIC ENTERPRISES (2007) LPELR 8998(CA), ORIENT BANK (NIG) PLC V. BILANTE INT’L LTD (SUPRA), VIRGIN ATLANTIC AIRWAYS V. AMARAN (2019) LPELR 44785 (CA); and AFRICAN INT’L BANK LTD V INTEGRATED DIMENSIONAL SYS LTD (2012) LPELR-9710 (SC).

In the instant case, by the pleadings of the parties, the Appellant and the 1st Respondent are limited liability companies registered under the laws of Nigeria. The 2nd Respondent is the Managing Director and directing mind of the 1st Respondent. However, by the evidence before the Court, I hold the view that both the Appellant and the Respondents have satisfied the ingredients of a valid contract of supply of generator 1250 KVA (MTU) and I so hold.

I have perused the Statement of Claim of the Appellant (filed at the lower Court) especially paragraphs 8-14 and the evidence of PW1 as contained in his Witness Statement on Oath. I have also perused the Statement of Defence of the 1st and 2nd Respondents, especially paragraphs 12 and 13. I have also perused the exhibits tendered in evidence by the Appellant and Exhibit H tendered in evidence by the Respondents.

The case of the Appellant is that the Respondents breached Exhibit B as the generating set have not worked for more than two weeks uninterrupted as shown in Exhibit “D”. And the learned Counsel to the Appellant submits that the learned trial Judge in her judgment failed to consider the content and implication of Exhibit D which is a letter written by the Appellant to the Respondents complaining of the epileptic performance of the generator.

Now after perusing the Statement of Claim and evidence of PW1, I have read in its entirety the judgment of the lower Court at (pages 202-221 of the Record of Appeal) especially at pages 213- 214, the learned trial Judge held in her judgment:
“The Plaintiff tendered Exhibit D to show its complaints to the Defendant of epileptic services and constant breakdown of the generator and that it had not worked effectively for more than two weeks. The Plaintiff in same Exhibit D requested for an extension of four weeks to further observe the generator to be convinced of its effectiveness. This letter was written on the 27th August, 2008 and on the 1st September, 2008, the Defendants replied via Exhibit E, giving the Plaintiff up till 5th September, 2008 to make total payment for the generator and demand for payment for the number of days the generator had been used. I have gone through Exhibit E and do not find anywhere therein where the Defendant admitted that the generator broke down or had mechanical fault as alleged by the Plaintiff, rather they threatened to recover the generator and demand for payment for its usage. The Plaintiff did not adduce any further fact or evidence to substantiate its assertion that the Generator did not and never worked. And there is also no evidence before the Court that at that stage, the Plaintiff knowing that the generator was not working as it claimed, insisted that the Defendants recover same as they threatened to do, rather the evidence before the Court is to the effect that the Plaintiff replied the Defendants Exhibit E by Exhibit H.”

By the above finding and position of the lower Court, the learned trial Judge had indeed considered the contents of Exhibit D, the evidence of PW1 and other relevant documents like Exhibit H.

The relevant contents of Exhibit D pertaining to the subject of dispute, i.e. the generating set, was adequately addressed and evaluated by the learned trial Judge in her judgment.

The law is trite that, where a trial Court had evaluated the evidence adduced by the parties in reaching a decision, an Appellate Court cannot interfere or disturb such exercise or judicial duty unless it can be established that such exercise of judicial duty has not been properly carried out, or if carried out not properly done or in violation of settled principles of law. See IKE V STATE (2001) 14 NWLR (PT 723) PAGE 221 AT 255; MADAKI V CIROMA & ORS (2016) LPELR 40268 (CA).
In the case of IKE V STATE (supra), the Supreme Court of Nigeria held thus:
“It cannot be over emphasized that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of the Court of trial which saw, heard and assessed the witnesses as they testified in the witness box. See AKINLOYE & ANOR V & EYIYOLA & ANOR (1968) NMLR 92.”

In the circumstance, the evaluation by the learned trial Judge was not perverse and therefore this Court cannot disturb the finding of the lower Court.

Further, the circumstances in which this Court can evoke Section 15 of the Court of Appeal Act to re-evaluate the evidence does not present itself in this appeal and such invitation by the Appellant’s Counsel is hereby resisted.

I am in total agreement with the learned Counsel to the Appellant that a valid contract in all its ramification exists between the Appellant and the Respondents and this Court had already made a finding that a valid contract exists between the Appellant and the Respondents.

The Appellant’s Counsel at paragraphs 5.9-5.22 of the Appellant’s Brief of Argument posits that a breach of contract is committed when a party to the contract without excuse failed or neglects or refuses to perform an obligation the party undertook in the contract or incapacitates himself from performing the same or in any way backs down in carrying out the material terms.

In the instant case, the Appellant Counsel submits that the Respondents were in breach of Clause D of the terms of contract contained in Exhibit B. Clause D of Exhibit B says:
“The generator will be expected to operate for 5 continuous months without requiring any form of mechanical assistance/servicing.”

According to the Appellant’s Counsel, the Appellants complained heavily on the serious problems and constant breaking of the generating set vide Exhibit D.

While the Respondents Counsel at paragraphs 3.2.5 – 3.2.8 of the Respondents’ Brief of Argument argues that by Exhibits D and H, the Appellant was requesting for more time to further test run the generator outside the contractually agreed period, he submits that the Appellant indeed even appreciated the patience of the Respondents in Exhibits D and H. He submits further that it was the Appellant that was in breach of the contract, Exhibit B, because the terms pertaining to payment were breached by the Appellant.

Now, I have looked at all the exhibits tendered in evidence in this case, especially Exhibits A, B, D, F and H. Exhibit A, is the proposal by the Respondents to the Appellant. Exhibit B is the purchase/job order that contains the terms and conditions of the contract of supply of the Generating set. Exhibit D is the letter of complaint by the Appellant to the Respondents dated August 27th, 2008. Exhibit F is the Appellant’s Solicitor’s letter to the Respondent dated 14th November, 2008, while Exhibit H is the Appellant’s letter dated 4th September, 2008 to the Respondents.

Now, it is interesting to note that while in Exhibit D dated August, 27th, 2008, the Appellant was complaining about the generating set, in the same token, by Exhibit H – Appellant’s letter dated 4th September, 2008 to the Respondents – the letter states as follows:
“Ref:
4th September, 2008
The Managing Director,
IBN International Limited,
Suite A30, Emab Plaza,
Aminu Kano Crescent, Wuse II,
Abuja.
Sir;
RE: PAYMENT FOR SUPPLY OF 1250KVA GENERATING SET MUT
We are writing to acknowledge receipt of a letter from Oceanic Bank Plc who claimed to have a lien in the generating set you supplied to us and your letter dated September, 4, 2008.
However, we want to state clearly that your concession to allow us test run the said generating set is quite appreciated, the little fault discovered were promptly rectified and we have since resumed the use of the generator.
We are therefore requesting that you give us up to two weeks maximum from the date on this letter to make payment for the generator.
Hopefully, we are counting on your usual cooperation.
Yours faithfully,
EKWENIKE NECHI
Assistant General Manager.” (Page 49 of the record)

In Exhibit H, the Appellant is pleading and appealing to the Respondents to allow them have a test run of the Generating set and they appreciated the Respondents. The Appellant finally requested for two weeks maximum from the date on the letter, i.e. 4th September, 2008, to make payment for the generator. The letter, Exhibit F, is therefore an afterthought and one can see same in the argument of Counsel in the Appellant’s Brief of Argument, especially at paragraph 4.15 of page 6. In the case of LAWAL V STATE (2010) LPELR 4622, this Court held that:
“after thought” means “A thought or thing thought of after the occasion; a later thought or reflection or modification.”
See also AGBO V STATE, (2006) LPELR 242 (SC).

Thus, the lower Court carried out a proper evaluation of evidence especially the contents of Exhibits D and H and arrived at a finding that the Respondents were not in breach of the contract, Exhibit B. This finding of the lower Court at pages 216-217 of the Record of Appeal cannot be disturbed or interfered with as the lower Court was right in such assessment of both oral and documentary evidence before her. (See page 213 of the Record of Appeal).

Thus, based on the foregoing, issues one and two for determination are therefore resolved against the Appellant and in favour of the Respondents. Consequently therefore, this appeal lacks merit and it is accordingly dismissed.

The judgment of the lower Court in suit no. FCT/HC/CV/1417/2009 delivered on 26th June, 2014 by His Lordship, Maryam Anenih J, is hereby affirmed.

No award as to cost and the parties are to bear their respective costs if any.

PETER OLABISI IGE, J.C.A.: I agree.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother, Danlami Zama Senchi, JCA, and I am in agreement with the reasoning and conclusion reached therein.

I therefore also find the appeal lacking in merit and it is hereby dismissed. I affirm the judgment of the Court below in suit no. FCT/HC/CV/1417/2009 delivered on the 26th June, 2014.

I make no order as to costs.

Appearances:

O. A. Eze, Esq., with him, Lessi Korebo, Esq. For Appellant(s)

Prof. Agbo J. Madaki, Esq., with him, Mimidoo P. Anundu, Esq. – for 1st & 2nd Respondents. For Respondent(s)