EMEVIK NIGERIA LIMITED v. CHEMICAL AND ALLIED PRODUCTION PLC
(2018)LCN/12149(CA)
In The Court of Appeal of Nigeria
On Friday, the 16th day of November, 2018
CA/L/862/2013
RATIO
EVIDENCE: IMAGINARY SCALE OF JUSTICE
“…the trial judge puts those pieces of evidence on an imaginary scale of justice, considers the value, the credibility and quality, not the quantity, as well as the probative essence of those pieces of both parole and documentary evidence on either side of the scale and weighs them together, in order to see and determine where the scale tilts to, that is, which of the parties’ evidence is heavier that causes the scale of justice to preponderate. This time honoured trite principle laid down by our judicial forebears in Mogaji & Ors v. Rabiatu Odofin & Ors. (1978) 4 S.C. 91 @ 93 resonates in all causes and matters which call for adjudication in our Courts today. Woluchem v. Gudi (1980) 5 S.C. 291 @ 320; Oyewole v. Akande (2009) All FWLR (pt. 491) 813; Teriba v. Adeyemo (2010) All FWLR (pt. 533) 1868; Odutola v. Mabogunje (2013) 7 NWLR (pt.1354) 522 @ 563; Hon. Justice Theresa U. Uzokwe v. Dr. Afam Uzokwe (2016) LPELR -40945 (CA); Faleye & Ors v. Dada & Ors (2016) LPELR -40297 (SC).” PER TOM SHAIBU YAKUBU, J.C.A.
Before Their Lordships
TOM SHAIBU YAKUBUJustice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILLJustice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMOJustice of The Court of Appeal of Nigeria
Between
EMEVIK NIGERIA LIMITEDAppellant(s)
AND
CHEMICAL AND ALLIED PRODUCTION PLCRespondent(s)
TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment):
This appeal is sequel to the judgment of the Lagos State High Court, delivered on 12 February, 2013 which was in favour of the respondent who was the claimant in the action it had filed thereat on 24 November, 2006, against the appellant.
A rehash of the brief facts of the case for ease of appreciation is expedient. The Appellant by its letter dated the 8th day of December, 2004 applied for the contract of the relocation of the Respondent’s production machines in its Adeniyi Jones premises, Ikeja, Lagos. By the letter dated the 15th day of December, 2004, the Respondent’s Project Manager-Technical, recommended to the Respondent for the award of the said relocation contract to the Appellant for the sum of N3, 650,000.00 (Three Million Six Hundred and Fifty Thousand Naira only. The said recommendation was strictly based on the Appellant’s successful execution of similar projects for UACN group, the Respondent holding company. By the Respondent’s letter dated the 27th day of December, 2004, the Appellant was awarded the said contract of relocation of the production machines with the Respondent’s paints plant at 2, Adeniyi Jones Avenue Ikeja, Lagos.
In the course of the execution of the contract, the parties exchanged some accusatory correspondences. It was consequent upon the sour relationship between the parties with respect to the contract between them which seemed to have failed that led the respondent to file the action against the appellant, whereof, it claimed the following reliefs, to wit:
a. The sum of N2, 190,000.00 (two million, one hundred and ninety thousand naira) being the payment made to the defendant for a contract which the defendant failed to execute.
b. The sum of N114, 672. 200 (One Hundred and Fourteen Thousand, Six Hundred and Seventy Two Naira) being the value of the 200 litres of Poly Coat Paint which the Defendants workers spilled on the Claimant’s premises on the 6th day of January, 2005.
c. The sum of N10, 000, 00 (Ten Million Naira) as general damages for breach of contract, and
d. The cost of this action.
(see page 3 of. Appellant’s brief of Argument).
On her part, the appellant counter – claimed thus:
A i. 3 wasted days at start of job @ N85, 800 per day = N255, 000.00
ii. Personal protective equipments damaged — N78, 000.00
iii. Health hazard to defendant’s personnel — N3, 000,000.00
iv. 3 locked out days without prior notice @ N85, 800 — N255, 000.00
v. Value of prefabricated items sold off — N255, 000.00
vi. Loss of earnings from suspension of work. 90 days @ N85, 000.00 — N7, 722, 000.00
vii. Rental bills incurred on tools trapped at CAP Plc. — N3, 000, 000.00
viii. Balance of contract price due to CAP Plc. stoppage of work — N1, 619, 000.00
ix. Compensation for abuse, slander and intimidation Legal Cost. — N3, 000, 000.00
Total — N22, 184, 000.00
B. General damages for the injuries and loss suffered by the defendant as may be assessed by the Court.
C. Costs.
The parties filed and exchanged their respective pleadings. Thereafter, they led oral evidence and some documentary evidence were tendered and admitted into evidence by both of them. Learned counsel for the parties, at the end of hearing of evidence proffered by the parties, filed and exchanged their written addresses. In his judgment, the learned trial judge, found for the respondent. However, the appellant’s counter claim was unproved and was consequently dismissed. Hence, the appeal against the said judgment by the appellant, anchored on seven grounds.
In the appellant’s brief of argument, prepared by Chidi Anya, Esq., and Nelson Osagie, Esq., which was filed on 4 April, 2014 and deemed filed at the hearing of the appeal on 17 October, 2018, five issues were nominated therein for the determination of the appeal, namely:
a. Whether the Learned trial Court was right in holding that the appellant was in breach of the project contract despite the facts and evidence put before it by the Appellant Court.
b. Whether the act of the Respondent exposing the Appellant’s workers to hazardous substances without any form of notification and/or precaution notice amounted to breach of the Factory Act.
c. Whether a proper evaluation was given to Exhibit D3 adduced to warrant the conclusion by the learned trial Court that the said exhibit D3 contained the excuses the Appellant had and that it did not require the Respondent to address any situation and whether the Respondent successfully proved its cases on the balance of probability.
d. Whether the failure of the Learned trial Court to give probative value to the oral evidence of DW1 which evidence clearly elucidated the nature of contract between the parties and same did not alter, add, vary or contradict any of the documentary evidence amounted to injustice.
e. Whether the learned trial Court made a proper finding when it imputed words not contained in Exhibit C5 thereby making a case for the Respondent different from the issues placed before it by the parties.
The respondent’s brief of argument, prepared by Prince Ben Onuora, Martins Besong, Esq., and Stanley E. Chinwuba, Esq., which was filed on 9 May, 2014, was deemed filed on 17 October, 2018. In it, five issues were suggested for the resolution of the appeal, inter alia:
a. Whether based on the evidence before the Court, the trial Court was right in holding the Appellant liable for breach of contract.
b. Whether there is evidence before the trial Court to hold the Respondent liable for exposing the Appellant staff to hazardous substances.
c. Whether the trial Court was right in holding that Exhibit D3 merely contained excuses for not completing the contract.
d. Whether the trial Court failed to give probative value to the oral evidence of DW1 and if so whether same amounted to injustice.
e. Whether the trial Court imputed words not contained in exhibit C5 which occasioned miscarriage of justice.
In my consideration of this appeal, I think that the appellant’s main grouse against the judgment against him, borders on the evaluation of the documentary and parole evidence, by the learned trial judge. Therefore the real issues for us to ruminate upon, are appellant’s issues a, c, d, and e, which can be summarized to just two issues, namely:
1. Whether the learned trial judge was right in holding that the appellant was in breach of the project contract in view of the pieces of evidence placed before him.
2. Whether the learned trial judge properly evaluated the parole and documentary evidence, especially Exhibits C5, C17X and D3.
I will consider and determine the two issues together.
A resume of the appellant’s contentions will suffice. Learned appellant’s counsel contended to the effect that it was not the appellant, who was in breach of the project contract and that if the learned trial judge had properly considered the DW1’s evidence vis-a-vis the facts and circumstances of the case, he would have seen that it was the respondent and not the appellant, who frustrated the completion of the project contract. He insisted that the learned trial judge did not properly evaluate Exhibits C5, C17X and D3 in his consideration of the respondent’s claim.
Arguing per contra, respondent’s learned counsel submitted to the effect that, the learned trial judge after a proper evaluation of Exhibits C1 and C17X, rightly came to the conclusion that Exhibit C1 only formed the basis of the project contract because according to him, Exhibit C17X which was only a communication between the parties did not form part of the contact between them. Therefore, he submitted that Exhibit C17 which was no more than an internal memo of the respondent cannot be construed to vary the contents of Exhibit C1 that was clear and explicit .With respect to Exhibit D3, he submitted to the effect that the said document was written more than three weeks after the breach of the contract agreement by the appellant who only proffered reasons in the said Exhibit D3, for the failure in completing the execution of the project contract. And with respect to the evidence of the DW1, he submitted to the effect that, his evidence at pages 240 and 243 of the record of appeal clearly bear out the fact that:
“The terms of the contract was not breached by the claimant, I mean the payment terms were not breached”.
Resolution of issues:
The law has remained well settled far beyond per adventure because it is elementary, that in considering the totality of the pieces of evidence proffered by both parties before the Court, the trial judge puts those pieces of evidence on an imaginary scale of justice, considers the value, the credibility and quality, not the quantity, as well as the probative essence of those pieces of both parole and documentary evidence on either side of the scale and weighs them together, in order to see and determine where the scale tilts to, that is, which of the parties’ evidence is heavier that causes the scale of justice to preponderate. This time honoured trite principle laid down by our judicial forebears in Mogaji & Ors v. Rabiatu Odofin & Ors. (1978) 4 S.C. 91 @ 93 resonates in all causes and matters which call for adjudication in our Courts today. Woluchem v. Gudi (1980) 5 S.C. 291 @ 320; Oyewole v. Akande (2009) All FWLR (pt. 491) 813; Teriba v. Adeyemo (2010) All FWLR (pt. 533) 1868; Odutola v. Mabogunje (2013) 7 NWLR (pt.1354) 522 @ 563; Hon. Justice Theresa U. Uzokwe v. Dr. Afam Uzokwe (2016) LPELR -40945 (CA); Faleye & Ors v. Dada & Ors (2016) LPELR -40297 (SC).
The phrase: ?Evaluation of evidence? was espoused by the cerebral jurist – Oputa, JSC, in Onwuka v. Ediala, thus:
“What does evaluation of evidence consist of? What is the meaning of the expression “Evaluation”? To evaluate simply means to give value to, to ascertain the amount, to find numerical expression to etc——“.
And more recently, the Supreme Court, in NACCEN Nig. Ltd v. BEWAC Automotive Producers Ltd (2011) LPELR – 8125 (SC), per Bode Rhodes- Vivour, JSC., succinctly reiterated the principle to the effect that:
“The law is well crystallized that it is the primary duty of the trial judge to receive all relevant evidence. That
9
is perception. The next task is to weigh the evidence in the case. That is evaluation. A finding of fact involves both perception and evaluation.”
Further see: Guardian Newspapers Ltd & Anor v. Rev. Pastor C .I. Ajeh (2011) 4 SCNJ 152 @ 168.
Now, to the instant case, the learned trial judge made an indisputable finding at page 267 of the record of appeal thus:
“The parties to this suit are agreed that the contract between them is contained in Exhibit C1, the defendant?s letter to the claimant dated 08/12/04. Exhibit C1 states that scope and process specification of the contract is:
?Decommission and Disconnect, Dismantle in modular units, transport to new positions, re-install and reassemble in-situ, Reconnect and Re-commission make good affected production floors.?
There are thirteen (13) machines listed under list of plant items, while under duration of work it is stated that:
“Six weeks from clearance of Advance Payment Cheque. We expect to work within laid down safety procedures during normal factory operation.”
Exhibits C2 and D1 are the same; they are the claimant’s letter to the defendant stating that the proposal contained in Exhibit C1 was accepted. Exhibit C3 is a letter dated 28/12/04 by which the advance payment bond was forwarded to the claimant by the defendant.
DW1 stated that he did not make a note of when the cheque for the advance payment cleared. But he admitted that the defendant did not finish the work within the six weeks period. The defendant has made a song and dance about the scope of the work but I believe that in the face of this admission that is begging the question. Though the issue of whether or not the scope of the contract does not directly affect the merit of this case, it might be tidy to settle the matter here and now.
The scope of the contract was well set out in Exhibit C1 as stated above. It is pleaded in paragraph 9 of the statement of defence that the scope of the contract is very clear from the offer letter and that the claimant’s staff were to isolate plant items for work to commence while the defendant’s staff were to isolate plant motors attached to the plant items. As a matter of fact, Exhibit C1 the said letter of offer does not contain any such term. What Exhibit C1 states categorically, is that the defendant was to do the reconnection and re-commission.
In the circumstances of this matter, it is not difficult to agree with his Lordship’s finding to the effect that Exhibit C1, formed the fulcrum of the contractual agreement between the parties herein. The probative value/essence of contractual agreements cannot be over emphasized. I had cause to restate it recently in Dike & Anor v. Obienu (2015) 9 CAR.372; (2015) LPELR – 25873 (CA) @ pages 8-9 thereof, thus:
“The importance and use of terms in an agreement is crucial because the Court regards them as sacrosanct and therefore will loathe to read into the terms of the agreement, matters which were not in the contemplation and eventual agreement of the parties. Hence it is settled law that in matters such as it is in the instant case, where the terms and conditions are spelt out in a written agreement, neither the parties nor the Court is allowed to read into it any extraneous terms which the parties did not expressly reach an agreement. Kaydee Ventures Ltd v. The Hon. Minister FCT & Ors. (2010) 7 NWLR (pt. 1192) 171 (SC), (2010) LPELR 663 (SC), (2011) 3 SCNJ 1, BFI Group Corporation v. Bureau of Public Enterprises (2012) LPELR 9339 (SC), Ogundepo & Anor. v. Olumesan (2011) 12 SCNJ (pt.) 89”.
Furthermore, in order to determine whether indeed there was a binding contract between the appellant and the respondent, the vital documentary exhibits that must be scrutinized were Exhibits C1, C5, C6, C15 vis-a-vis Exhibit C17X. See Shell BP Petroleum Co. LTd v. Jammal Engineering (1974) 4 S.C. 33 @ 72, which was applied by Fabiyi, JSC, in BFI Group Corporation v. Bureau of Public Enter., supra, to the effect that:
“The final exercise of judgment of necessity involves a consideration of all the correspondence that is properly put in evidence by both parties and the correspondence tendered in order to establish the case and all that were produced in Court in order to disprove the existence of a contract. It is only after such detailed consideration that a Tribunal can fairly come to conclusion as to whether or not the parties actually arrived at an agreement. See: Thomas Hussey v. Hornea Rayne (1897) A App. Cases 311. The task of analyzing the several letters and attempts to reconcile the one with the other is undoubtedly a very difficult one calling for the most serious examination of each and every one of several documents until the Tribunal is able to say whether a contract is indeed established”.
See also Spera in Deo Ltd. v. Peccuno Mineral Industry (Nig) Ltd. & Anor. (2016) LPELR 41044 (CA) pp. 10-11.
The learned trial judge, upon his appraisal of the evidence proffered by the DW1 for the appellant, found that a part from the initial contract which was formed vide Exhibit C1; there was a later review of the contract vide Exhibits C6 and C15 to accommodate the electrical works in the project contract and for that purpose, the respondent approved additional funds vide Exhibit C5. Hence he made the following findings at pages 269- 273 of the record of appeal, to wit:
“From the foregoing the following facts are admitted by the pleadings and the evidence led at the trial:
1. The contract between the parties is stated in Exhibits C1, C15, C5 and C6.
2. The defendant did not comply with the time for performing the contract.
3. The defendant did not complete the contract fully.
The defendant however pleaded and its counsel has submitted that the defendant was not responsible for the non-completion of the contract. The matter in issue is whether the failure of the defendant to meet with the time limit and to complete the job amounted to a breach of contract.
As stated in the address of learned defence counsel, the defendant’s case is that the only plant which was not moved was under repairs and that the non-completion was due to the act of the claimant in denying the defendant’s workers access to the factory to move the 13th machine. The defendant contends that it is not in breach because its failure to complete the contract was caused by the action of the claimant. In the light of the foregoing, I find and hold that the issue for determination in this suit is this:
“Whether the claimant occasioned the non-completion of the contract. That is the paramount issue. I hasten to say that the burden of proof lies on the defendant who asserts that it did. Having admitted that it did not complete the contract or meet with the time limit, the defendant has the burden of proving its averments in paragraphs 7, 8, and 10 of the statement of defence as follows:
“The defendant denies the averment contained in paragraph 11 to the extent that vide a letter dated 11th April 2005, the defendant wrote to the claimant wherein the defendant detailed all major impediments, clogs and mishaps constraining the contract, and also the dangerous and onerous conditions that it’s workers were subjected to. These impediments, were not taken into cognizance at the inception of the contract.”
The defendant admits the averment contained in paragraph 12 and states that the claimant failed to address the issues contained in the defendant?s letter of 11th April 2005.”
The defendant admits the averment contained in paragraph 14 but states that the claimant conveniently omits to mention that at this meeting, in answer to the Finance Director’s question, the Factory Manager stated that the only item not released was the 10,000 litres tank on which the original plant supplier was still carrying out repairs and which would undergo 2 weeks test-run for before being made available for relocation.
It is trite that he who asserts must prove. Section 133 of the Evidence Act 2011 provides that the burden of proving the existence or non-existence of a fact lies on the party against whom judgment will be given if no evidence is led. As the basic facts that constitute the case of the claimant have been admitted, the defendant is the party who will lose if no further evidence is led. In Egharevba v. Dr. Osagie (2009) 18 NWLR Pt. 1173, 299 the Supreme Court held that:
The burden of first proving a fact is usually on the plaintiff who brought the action, though not invariably so. There are times when the burden is on the defendant, depending on the state of pleadings. Therefore it is valid law that the state of pleadings materially determines the party who has the burden of proof.
The burden of proving that the failure of the defendant to complete the contract was occasioned by the claimant has shifted to the defendant.
The letter dated 11/4/05 which the defendant pleaded and relies on is Exhibit C8. It was written in response to Exhibit C7, the letter dated 07/04/05 in which the claimant complained of the inability of the defendant to keep its promises about the project. It simply contained the excuses the defendant had. It did not require the claimant to address any situation. It starts with the statement that:
“We wish to place on record the following facts in respect of the contract”
After stating the facts, the defendant indicated its disappointment that the claimant did not commend the quality of its works and stated that the Advance Payment Bond was no longer relevant.
The evidence led at the trial reveals that the six weeks period of the contract (which neither party has led evidence of when it commenced) was extended. The defendant sought and was granted an extension of three weeks as requested in letter dated 31/01/05 Exhibit C15. The letter also required an additional payment of N1, 250,000:00, which the claimant approved as stated in Exhibit C5. But it is clear that up till the time of the institution of this suit on 24/11/06, the 13th machine had not been moved.
Exhibit C6 is the work timetable dated 21/02/05 that defendant pleaded in paragraph 5 of the statement of defendant the last date of work stated herein is:
“Monday 14/03/05 clearing from site”.
Certainly the defendant did not comply with this revised date as pleaded by the claimant in paragraph 9 of the statement of claim and deposed in paragraph 13 of CW1’s written statement on oath. DW1 admitted this under cross-examination. The evidence led by the defendant on why this is so, is that:
“We did not finish the work within the six-week time limit because the claimant did not allow us access.”
This defence does not hold any water. The defendant contends that it was deprived of access into the claimant’s premises on 28/04/05 as stated in Exhibit C10. But Exhibit C10 does not assist the defendant for four reasons.
1. The date of 28/04/05 stated therein as when the staff of the defendant was denied access, is way beyond 14/03/05 stated in Exhibit C6 as the terminal date of the contract, as learned counsel for the claimant pointed out in his final address.
2. Exhibit C10 states:
Attention K. Salami, Technical Operation Manager
Dear Sir,
CONTRACT FOR THE RELOCATION OF PRODUCTION MACHINES
We note with regret that our Project Engineer and his team were denied access on Thursday 28th April, 2005 when they sought to ascertain if you have made the 10,000 liters tank available for transfer, to enable us complete this contract.
We request that you please allow them access to retrieve some of our tools and equipment for use elsewhere while we wait for you to finish the repairs and testing you have been undertaking on this plant item.
Yours Faithfully,
Emevik Nigeria Limited
It is clear that the allegation in the letter is that the staff of the defendant only sought to ascertain if the machine was available for transfer. There is no evidence that after the claimant’s reply Exhibit C11 was written, the defendant sought to access to the factory to move the machine and was not allowed to do so. Indeed in paragraph 26 of his written statement on oath DW1 deposed:
“That we were reluctant to go to their factory again without 3rd party supervision for the purpose of retrieving the balance of our equipment for fear of a frame-up against our staffs on such a mission.”
So as CW1 deposed when he was cross-examined, it was the defendant that chose not to go back to the factory.
3. More importantly, the allegation that there was even any need to ‘ascertain’ whether the claimant had made the machine available has been firmly disproved by the evidence led in this suit.
The defendant pleaded and DW1 testified that the 13th machine was not moved because its original supplier was carrying out repairs on it and it would undergo two weeks test-run. But the claimant countered this.
In its reply to the statement of defence, the claimant pleaded that two test-runs can be done in a day. In the course of the trial, DW1 was effectively cross-examined and the evidence extracted from him revealed that all the machines that were to be relocated were functional and did not need any repairs. He stated that he had been shown round the defendant’s factory before he made his question and that all the tanks were in use when the contract was entered into. He added that he was aware from the onset that work would be going on at the factory at the same time as he would be doing the relocation. DW1 stated under cross-examination that:
“The tanks we were to relocate were functional”
Then again he stated that twelve of the thirteen mixers to be moved were functional.
Then he added that:
“The 13th one was still being installed by the original “supplier'”
But he went on to say:
“It had a fault which was still being rectified by the original supplier. He stated that after it was repaired, it would be tested before it could be made available for transfer.”
This testimony is contradictory because it states firstly that the machines were fine, then it states that the 13th machine had not been installed, and then again that it had a fault and was being repaired. There is no explanation for this inconsistent testimony. It is not believable. As learned counsel for the claimant submitted in his address, the evidence led that the machines were in use removes the attempt of the defendant to justify its failure to relocate the 13th machine.
4. It is also very pertinent that at the time the defendant wrote Exhibit C10, not only was it that the timetable had not been complied with and the time set for completion of the contract elapsed, the parties were in a dispute as to the scope of the contract and the agreement between them had broken down. The defendant who need to have a separate electrical contract to provide for cables to power the machines. The position was well stated in the reply the claimant wrote to Exhibit C10. That letter is dated 11/05/05, Exhibit C11 in which it stated that:
“What we said is that in view of the current impasse arising from the unexpected demand you made for funds to ‘power’ the already relocated machine, we need to have a critical look at the whole transaction as discussed at the meeting we had with you on 19th April, 2005.”
In the light of the foregoing, I find and hold that Exhibit C10 and the excuse that the claimant denied the defendant’s workers access cannot vindicate the defendant. The defendant had been in breach of the contract before 28/04/05 when it was allegedly denied access.
I therefore find that the defendant did not discharge the burden of proof on it to establish its defence that it failed to complete the job because it was denied access to the claimant’s premises, and because the last machine to be moved was still being repaired as it pleaded. The defendant has failed to establish the facts it pleaded.
I therefore find and hold that the non-completion of the contract by the defendant was not occasioned by any act of the claimant. Accordingly, I hold that the defendant breached the contract between the parties by failing to meet the time limit agreed by the parties, by not removing all the machines that were meant to be relocated and by failing to reconnect the machines as it undertook to do.
My Lords, I must say that I fail to see any perversity in the findings of the learned trial judge, which were meticulously tied to the pieces of evidence placed before him. I am of the firm and considered opinion that the findings, having been borne out of the evidence, are unassailable. I have considered the contention of learned counsel to the appellant with respect to Exhibit C17X as forming part of the project contract between the parties. It is manifestly clear as crystal that whereas the contract which the appellant had previously executed successfully was in respect of “the relocation of the Clenol Manufacturing Plant”, whilst what was recommended in Exhibit C17X, was for a “relocation and reinstallation contract. And if one may ask: Did the recommendation in Exhibit C17X metamorphose into a contract between the parties? If it did, what were the terms of the contract? I am afraid, there is no averment in the appellant’s pleading and evidence led on it by the DW1. Therefore, the learned trial judge was on firma terra, when he found and held at page 268 of the record of appeal, that:
“In any event the defendant relies on Exhibit C17X in support of its contention that the claimant was expected to award an electrical installation contract separately as it had done in a previous contract which the present contract was supposed to be a repeat of. Learned counsel referred particularly the last paragraph of the document. What that portion states is that:
“We recommend that the relocation and reinstallation contract be awarded to Emevik Nigeria Ltd. for Three Million Six Hundred and Fifty Thousand Naira only (N3, 650, 000) based on their past successful executions of similar projects for the UACN group including the relocation of the Clenol manufacturing Plant from UNCN P and PP Limited Ilupeju site to CAP Plc. Apapa”
Now I observe the fact that while it is stated that for the present contract, for which the defendant was being recommended it was for ‘relocation and reinstallation’, it was also stated that the previous project which the defendant had done was relocation of the Clenol manufacturing plant?. Therefore the earlier contract was clearly different from the one under consideration. So it is obvious from the document that the present contract was not meant to be a repeat of the previous one. Exhibit C17X does not assist the defendant. It does not in anywise show that it was expected that the defendant was to perform identical functions as it now seeks to make out. In any event that document was not a communication between the defendant and the claimant and it is not part of the contract between them. In the same vein Exhibit C18X does not assist the defendant.
I think that the appraisal by the learned trial judge of the pieces of both parole and documentary evidence placed before him, merited a commendation and not a condemnation. But lest I forget, I fail to see what prosperity that Exhibit D3 would have added to the appellant’s defence since the said exhibit was no more than an explanation by the appellant as to why the contract failed.
However, that was after the appellant had breached the terms of the contact by not completing it within time, even when the DW1, admitted that the respondent did not breach the contractual agreement as far as the payment terms were concerned.
In sum I resolve the two issues discussed in this appeal against the appellant. The appeal, is devoid of merits and it is accordingly, hereby dismissed.
The well considered judgment rendered by O.A. Williams, J., in re – suit no: ID/1395/2006, on 18 February, 2013 at the Lagos State High Court, holden at Lagos is affirmed.
Costs of N100, 000. 00 only is awarded to the respondent against the appellant.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in draft the lead Judgment of my learned brother TOM SHAIBU YAKUBU, JCA. just delivered with which I agree and adopt as mine. I have nothing more to add.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I had the privilege of reading in draft, the judgment just delivered by my learned brother TOM SHAIBU YAKUBU, JCA.
I agree entirely with his reasoning and conclusion that the appeal is devoid of merit. I also dismiss the appeal and abide with the consequential orders made in the lead judgment.
Appearances:
Chidi Anya, Esq. with him, Oyenilu Gbamigbeje, Esq.For Appellant(s)
Bon Onuora, Esq. with him, Martins Besong, Esq. & Zainab LawalFor Respondent(s)
