INTERNATIONAL STARCHEM INDUSTRIES LIMITED v. AFRICAN NEWSPAPERS OF NIGERIA LIMITED (2014)

INTERNATIONAL STARCHEM INDUSTRIES LIMITED v. AFRICAN NEWSPAPERS OF NIGERIA LIMITED

(2014)LCN/7261(CA)

In The Court of Appeal of Nigeria

On Friday, the 6th day of June, 2014

CA/I/68/2009

RATIO

WHETHER A COURT CAN DETERMINE ISSUES ON THE BASIS OF A SINGULAR DOCUMENT, ESPECIALLY IN A MATTER BORDERING ON CONTRACT

It is now settled, that it is not the duty of the court to determine the issues before it on the basis of one document only, particularly in a contractual relationship where the contract agreement is contained in a series of documents or letters or correspondences or invoice like in the instant case. The court is under a duty to consider the whole of what has passed between the conduct of the parties. Where a trial court finds a set of facts proved, it should apply law to his findings so that its conclusion therein will not be contradictory. (Refers Udeagu v. Benue Cement Plc (2005) LPELR-6170 (CA) Pp. 30-31). per MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

WHETHER EXTRINSIC EVIDENCE CAN BE ADDED TO OR CAN VARY, SUBTRACT FROM OR CONTRADICT THE TERMS OF A WRITTEN CONTRACTUAL DOCUMENT

It is the law that, in the construction of contract documents, where the parties have embodied the terms of their contract in a written document extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written document. However, the principle of doctrine of incorporation by reference is to the effect that, where from the document or documents produced by the parties and admitted in evidence, it is clear that some other evidence must have been in the contemplation of the parties, the court would be compelled to look beyond the contractual document and ascertain the intention of the parties. See Nika Fishing Co. LTD v. Lavina Corp. (2008) 16 NWLR (pt.1114) p.509; U.B.N. v. Nwaokolo (1995) 6 NWLR (pt.400) p.127 and Collins Iwuoha v. Nigerian Railway Corporation (1997) LPELR – 1570 (S.C). per HARUNA SIMON TSAMMANI, J.C.A

JUSTICES

MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

MUDASHIRU N. ONIYANGI Justice of The Court of Appeal of Nigeria

Between

INTERNATIONAL STARCHEM INDUSTRIES LIMITED Appellant(s)

AND

AFRICAN NEWSPAPERS OF NIGERIA LIMITED Respondent(s)

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice Mashud A. A. Abass (J), of the High Court of Justice, Oyo State, Ibadan Judicial division, delivered on the 1st day of August, 2008 in which the learned trial judge granted part only of the claim of the Plaintiff. (Pages 107-113 of the record)

The Appellant was the Plaintiff while the Respondent was the Defendant at the trial court. They shall be referred to simply as Appellant and Respondent respectively. The Appellant at the trial court initially filed this matter on the 10th October, 2002 under the undefended list before it was later transferred to the general cause list.

The claim of the Appellant against the Respondent is as follows:-

a. The Plaintiff claim against the defendant is for the sum of N10, 674,360.70 (Ten Million, Six hundred and seventy-four thousand, three hundred and sixty naira, seventy kobo) being outstanding balance of N6, 249, 977. 50 (Six Million, two hundred and forty nine hundred and seventy seven naira, fifty kobo) on Newsprint supplied to the Defendant due since the 30th of April, 2002 and interest of N4, 424, 383.20 (Four Million Four Hundred and twenty four thousand, Three hundred and eighty-three naira twenty kobo) calculated therefrom at the rate of 10% per month till the 30th of September, 2002.

b. The Plaintiff also claim 10% interest calculated on any outstanding amount from 1st of October, 2002 until finally liquidated. (see pages 1-2 & 35-36 of the record)

The Respondent at the trial court admitted owing the Appellant the sum of N5, 772,950.00 leaving the balance of N4, 901,410,70. The balance is made up of N4, 424,383.20k claimed by the Appellant as pre-judgment interest, N249, 977.50k as the delivery charges and the sum of N277, 050.00 which the Respondent allegedly paid to one Elder Wole Ogunnowo whom the Respondent claimed was the agent of the Appellant.

Pleadings were filed and exchanged and the suit proceeded to hearing.
Judgment was entered partly in favour of the Appellant. That is the undisputed sum N5, 772,950.00 and the money allegedly paid to Elder Wole Ogunnowo.

The Appellants felt agitated with the decision of the learned trial Judge and filed a notice of appeal dated 17th October, 2008 and filed on the same day. The notice of appeal contains three grounds of appeal.
(Pages 114-116 of the record). I find it necessary to reproduce the grounds of appeal without their particulars and they are:-

GROUND ONE
The learned trial Judge erred in law when he stated thus;
“The provision of 10% interest per month in default of payment of the contractual sum was unilaterally introduced by the Plaintiff vide exhibit 4. It was not part of the terms of the contractual agreement contained in Exhibit 3 and 3A. I am of the considered view that such later in the day inclusion of additional terms cannot in law form part of the terms of the contractual relationship between the Plaintiff and the Defendants. I am not persuaded by the submission of the learned Counsel for the Plaintiffs that since the Defendants signed Exhibit 4, they are bound by whatever is contained therein having due regard to the facts and circumstances of this case. I am of the view and I so hold, that the Plaintiffs are not entitled to their head of claim of N4, 424, 383.20k as interest. This head of claim is accordingly dismissed”.

GROUND TWO
The learned trial Judge erred in law when he held that;
“Having earlier held above that no party will be allowed to unilaterally bring into the terms of a contract at a later point in time any term that was not initially contemplated by the parties, I am prepared to hold and I so hold that the unilateral incorporation of a particular amount as delivery charges in Exhibit 4 will not in law entitle the Plaintiff to the claim of N249, 977.50k on this head of claim as payment for delivery charges was not part of the terms of the contract contained in Exhibits 3 and 3A. This head of claim is also dismissed”.

GROUND THREE

RELIEF SOUGHT
Judgment is against weight of evidence.
1. That the part of the decision of the court in respect of which this appeal is lodged be set aside.
2. That judgment be entered in favour of the Appellant in respect of both interest and delivery charges claimed together with statutory post judgment interest calculated from 1st of August, 2008 until the whole amount is fully liquidated.
3. That the Respondent bear the cost of this appeal.

The learned Counsel Ademola Olowoyeye Esq., of Grace Chambers, raised the Appellant’s brief of argument dated 14th April, 2009, filed 21st April, 2009 in which a lone issue was formulated from the three ground of appeal as follows:-

Whether having regards to the state of the pleadings, the evidence before the court including documentary evidence and especially Exhibits 3 – 3a and 4 the court was right to have refused the claim for interest and delivery charges.

Learned counsel for the Respondent Ajibola Ige, Esq., of Akin Ige & company filed the Respondent brief of argument. The brief was dated 2nd June, 2009, filed on the same day.

The learned Counsel adopts the sole issue distilled by the Appellant for the determination of this appeal.

Learned Counsel for the Appellant then filed Appellant Reply brief dated 21st January, 2010, filed 22nd January, 2010 but deemed filed on the 22nd April, 2010.

The learned Counsel for the Appellant in arguing the sole issue agreed that the learned trial Judge considered Exhibits 3, 3A and 4 but was in error to have rejected the claim for delivery charges. Counsel submits that the issue of how and at what cost the newsprint will be delivered in Ibadan are not conclusive of the reading of Exhibits 3 and 3A. That Exhibit 4 contains those things Exhibits 3 and 3A did not carry.

Counsel also submits that Exhibit 4 was signed by both parties, that rather than excluding Exhibit 4, the learned trial Judge ought to have seen Exhibit 4 as providing the larger picture for the rights and obligations of the parties. The learned counsel placed reliance on the case of Udeagu v. Benue Cement Plc (2006) 2 NWLR (pt. 965) 600 which held:-
“in a contractual relationship where the contract agreement is contained in a series of documents or letters or correspondences, the court is under a duty to consider of whole of what has passed between the conduct of the parties. Where a trial court finds a set of facts proved, it should apply law to his findings so that its conclusion therein will not be contradictory”.

See also: Comptior Commercial & Ind. S.P.R Ltd v. Ogun State Water Corporation & Anor (2002) 9 NWLR (pt. 773) 629 @ 656 per Ayoola JSC declared that:-

“When a contract is reduced to the form of documents into which has been incorporated other documents, the documents incorporated ceased to be extrinsic to the main document but fall to be construed as part of it”.
Counsel then urged this court to hold that Exhibit 4 is not a unilateral injection to the relationship but a valid document that must be construed in order to determine the rights and obligations of the parties, after the newsprints had been supplied.

On a document signed by a party, Counsel submits that in the absence of fraud and misrepresentation a party who has signed a document is bound by it and that if this court allows the trial court judgment to stand it will amount to a party resiling from the obligations he has voluntarily acknowledged, and entered into. (Refers Chaguory v. Adebayo (1972) NCLR 384 @ 388-390, Artra Industries (Nig) Ltd. v. NBC (1998) 4 NWLR (pt. 547) 357 @ 378 & Dodo v. Solanke (2006) 9 NWLR (Pt. 986) 447 @ 472-473).

Counsel also submits that apart from Exhibit 4, the Appellant in his statement of claim gave evidence to the fact that he is entitled to interest on the failure of the Respondent to pay for the goods supplied to it by the Appellant. That the applicable law is section 54 of the sale of Goods Law Cap 116 Laws of Oyo State 2000.

On the requirement of the law in regards to a Plaintiff claiming interest arising from the failure of the buyer to pay for goods as at when due, Counsel cites the case of Ekwunife v. Wayne (W/A) Ltd (1989) 5 NWLR (Pt. 122) 422 @ 445 where my lord Nnaemeka-Agu Stated thus:-

“Interest may be claimed as a right where it is contemplated by agreement between the parties; or under a mercantile custom, or under a principle of equity such as breach of a fiduciary relationship.
…..where interest is being claimed as a matter of right, the proper practice is to claim entitlement to it on writ and pleaded facts which show such an entitlement in the statement of claim”.
See also Texaco Overseas Nig, Ltd v. Redmar Nig Ltd (2002) 13 NWLR (Pt.785) 526 @ 548-549 & paragraph 7 (a) of the statement of claim & paragraph 8 of the amended statement of defence.

Counsel further submits that contrary to the contention of the Respondent and the holding of the learned trial Judge the terms as to consequence of breach of the contract to pay as at 30th April, 2002 or until the 30th May, 2002 is governed by the terms expressed in Exhibit 4. Refer Sagay-Nigerian Law of Contract, page 168 where it was stated that:-

“The position with regard to document signed by the injured party, containing or incorporating excluding or limiting terms is simple and straight forward in the absence of fraud, duress or misrepresentation, the person signing is bound by the excluding or limiting term whether or not he reads it”.

See also the case of DHL Inter (Nig) Ltd v. Chidi (1994) NWLR (pt. 329) page 167 – 168.

The learned counsel emphasised on delivery charges, insisting that the Appellant is entitle to recover what is reasonable and just for the obligation which it discharged for the Respondent at the Respondent’s request on the basis of quantum meruit.

In response, the learned Counsel for the Respondent submitted, on the authority of FRN v. Zebra Energy Ltd (2002) 18 NWLR (798) 162 @ 204 that in Law of Contract, the courts determine the terms of a contract by discovering the intentions of the parties as to what their binding obligations are by looking at all the documents in regards to the contract. That in the instant case the Local Purchase Order (LPO) contains the intentions of the parties.

On the implication of the usage of LPO, Counsel refers to the dictum of Abdullahi JCA in the case of Kyaure Construction Ltd v. Agbara (1998) 2 NWLR (Pt.539) 581 @ 590 where he held that:-

“The common usage of agreement by issue of an LPO is that the supplier of the items listed on the LPO will be paid for the items he supplied and no more”.

The case of Kyaure Construction Ltd v. Agbara (supra) is distinguishable with the instant case in that there was a time line as to payment which was also listed on the LPO. Non-compliance with the said time line should attract a remedy. That is the argument of the Appellant and which I find difficult to disagree with.

See also C.A.P. Plc v. Vital Investment Ltd (2006) 6 NWLR (pt.976) 220. Counsel then submits that Exhibits 3 and 3a speak for themselves as the document expressing the obligations of the parties and the total indebtedness of the Respondent.

On issue of Exhibit 4 which is an invoice issued by the Appellant, counsel submits that the issue is not whether or not such document was signed but whether there was a manifest intention by the parties that this would form part of the original contract previously negotiated and effected. That there was no consensus ad idem in regards to incorporating Exhibit 4 to the initial negotiation as contain in Exhibits 3 and 3a, (Refers Oriental Bank v. Balante International (1997) 8 NWLR (Pt.515) 37 @ 76).

Counsel also submits that where a contract is contained in an agreement, no party to such contract will be allowed to bring in additional terms or vary existing terms which are to the detriment of the other party and which were not contemplated or agreed to at the time the contract was entered into. (Refers Odua Investment Co. Ltd v. Talani (1991) NWLR (pt. 170) 761, Idoniboye-Obu v. NNPC (2003) 2 NWLR (Pt. 805) 589). That Exhibit 4 was never agreed upon by the parties as part of the contract agreement and that the law is clear that he who asserts a fact must prove same and as such the Appellant failed to discharge this burden. (Refers DHL (Int.) Ltd v. Chidi (1994) 2 NWLR (Pt.329) 720).

Counsel also submits that contrary to the Appellant’s submission, the trial court considered Exhibit 4 and other all other documents before the court before concluding that Exhibit 4 did not form part of the contract entered between the two parties but that the parties intended to be bound solely by the Original LPO. That the law is clear that where a trial Judge has made any findings of facts such findings will not be disturbed on appeal except in situations where such findings is manifestly perverse. (Refers S. C. C (Nig.) Ltd v. Elemadu (2005) 7 NWLR (pt. 933) 28 @ 67, Fyneface v. Fyneface (2007) 9 NWLR (Pt.1040) 588 @ 602).
On the Appellant’s submission that he is entitle to delivery charges as just and reasonable entitlement for obligation discharged to the Respondent, Counsel submits that contracts are entered into freely and courts are bound by the terms of such contract and cannot rewrite such contracts even in a situation where it would be reasonable and just to do so. (Refers Owoniboys Technical Services Ltd v. UBN Plc (2003) FWLR (pt. 180) 1529, UBN v. Sax (Nig) Ltd (1994) 8 NWLR (Pt.361) 150, C. A. P. Plc v. Vital Investment Ltd (supra)).
Counsel also submits that a promise or the performance of an act contained in a contract exhausts the promise given in return. That any further promises made subsequently by any of the two parties without any fresh consideration from the other party is not actionable as such promise is given upon past consideration. (Refers Sagay’s Nigerian Law of Contract, Second Edition, Chapter 3, Page 68-72, Chesire, Fifoot & Furmston’s Law of contract, Eleventh Edition, Chapter 4, Page 70-73).

Counsel further submits that in the absence of any consideration for the subsequent promise by the Respondent, the Appellant’s claim must fail as any such consideration was past and thus unenforceable.

In reply to the Respondent, learned counsel for the Appellant submits that Exhibit 4 contains all the things Exhibits 3 and 3a left out e.g. delivery charges, consequence of not paying within stipulated time etc. that the elements of contract in terms of offer and acceptance are available on Exhibit 4 to be incorporated to Exhibits 3-3a in order for the parties to construed a complete contract. See Sparkling Breweries Ltd v. UBA Ltd (2001) 15 NWLR (pt. 737) 539 @ 565 where Achike JSC (of blessed memory) stated that:-

“whether or not there is a semblance of a legally binding agreement between the parties, that is, a situation where the parties to the contract confer rights and impose liabilities on themselves-will largely depend on whether there are exist a mutual assent between them. Where there is doubt on whether the parties have concluded a legally binding agreement, the court has the responsibility to analyse the circumstance surrounding the alleged agreement and determine whether the traditional notion of “offer” and “acceptance”, earlier referred to, call for some explanation in order to recognise whether or not the parties are ad idem. An “offer” is an expression of readiness to contract on the terms specified by the offeror (i.e. the person making the offer) which if accepted by the offeree (i.e. is the person to whom the offer is made) will give rise to a binding contract. In other words, it is by acceptance that the offer is converted into a contract”.

Counsel then submits that the contract of the parties expects the parties to be bound by the contents of Exhibits 3-3A and 4 in order to appreciate the fullness of the contract.

On past consideration, Counsel refers to Sagay – Nigerian Law of Contract @ Page 68

“The giving of a promise or the performance of an act stipulated for in a contract exhaust the promise giving in return. Thus any further promise made subsequently by any of the two parties without fresh consideration from the other party is not actionable”.

In regards to the delivery charges, a situation where at the time of making the delivery it must have been understood that delivery charges will be paid and the subsequently signing of the invoice is an acceptance of that understanding.

On damages for non-payment as and when due, Counsel submits that the time for payment had not arisen at the time the invoice Exhibit 4 was signed by the Respondent to enable him raise the issue of past consideration. That assuming what the Appellant claims for are regarded as past services they are such that are within the exceptions to the principle of past consideration. Citing Sagay- Nigerian Laws of Contract page 71 where the author review the case of Casey’s (1892) 1 CH. 104 as follows:-

“…the fact of a past service raise an implication that at the time it was rendered it was to be paid for; and if it was a service which was to be paid for, when you get in the subsequent document a promise to pay, that promise may be treated either as admission which evidence or as a positive bargain which fixes the amount of that reasonable remuneration on the faith of which the service was originally rendered”.

That the trial Judge erred to have hold that Exhibit 3 and 3a are the only binding contract between the parties.

The argument of the learned Counsel for the Respondent that courts determine the terms of a contract by looking at all the documents in regards to the contract is correct, in this case Exhibits 3, 3a and 4 are in focus.

Where the parties have reduced their intentions into a written agreement that the court would construe nothing more. Did the trial court really look at all the documents placed before the court, particularly Exhibit 4?

I have carefully looked at Exhibits 3 and 3a at pages 14 and 15 of the record for this appeal. The two documents contain the items to be supplied and at what cost, all the prices quoted subject to discount, delivery, payment 14 days after supply etc. There are issues that Exhibits 3 and 3a did not contain like consequence of default of payment, cost of delivery particularly.

Contrary to the decision of the trial court, I am of the firm opinion that Exhibit 4 is part of the agreement entered by the parties as it does not in any way nullify the initial agreement (Exhibits 3 and 3a) but rather complementing it or as submitted by the Appellant “as providing the larger picture for the rights and obligations of the parties” and the trial Judge should have considered it as part of the agreement between the parties.

On the issue of signing of Exhibit 4, the learned Counsel for the Respondent contends that there was no consensus ad idem in regards to incorporating Exhibit 4 to the initial negotiation as contained in Exhibits 3 and 3a and that where a contract is contained in an agreement, no party to such contract will be allowed to bring in additional terms or vary existing terms which are to the detriment of the other party and which were not contemplated or agreed to at the time the contract was entered into.

Contrary to the learned Counsel for the Respondent’s submission, it is settled that parties to an agreement or contract are bound by the terms and conditions of the contract they signed, (Refers Isheno v. Julius Berger Nig. Plc (2008) LPELR-1544 (SC) p. 35) and when a document containing terms is signed then in the absence of fraud and misrepresentation a party who has signed such a document is bound by it not withstanding whether he read the document or not. Refers West Africa Portland Cement Plc v. Oduntan & Anor (2007) LPELR-9046 (CA) p. 24 & Sagay-Nigerian Law of Contract, page 168 where it was stated that:-

“The position with regard to document signed by the injury party, containing or incorporating excluding or limiting terms is simple and straight forward in the absence of fraud, duress or misrepresentation, the person signing is bound by the excluding or limiting term whether or not he reads it”.

In this case, the charge for default of payment which was not included in Exhibit 3 and 3a was taken care of under Exhibit 4 and it was dully signed by an agent of the Respondent which happens to be the store officer. No complain was tabled in regards to the contents of Exhibit 4 up until after the Respondent had defaulted in payment for the goods supplied. My lord Eso JSC in the case of Egbase v. Oriareghan (1985) LPELR-1030 (SC) Pp. 29-30 held that:-

“…whenever a man of full age and understanding who can read and write signs a legal document which is put before him for signature by which I mean a document which, it is apparent on the fact of it, it intended to have legal consequences then, if he does not take the trouble to read it, but signs it as it is, relying on the word of another as to its character or contents or effect, he cannot be heard to say that it is not his document. By his conduct in signing it he has represented to all those whose hands it may come, that it is his document; and once they act upon it as being his document, he cannot go back on it and say it was a nullity from the beginning”.

Exhibits 3 and 3A have conditions endorsed on them as follows:-

“All prices quoted subject to discount.

Delivery within 7 days unless otherwise agreed.
Goods supplied not to specification will be returned.
Payment 14 days after supply”.

The flip side of these conditions are non-compliance. In issue is the condition of payment tagged at 14 days after supply which the Respondents breached. It would be inequitable to say that the Appellants are not entitled to any form of compensation in default of the agreement. Exhibit 4 calls it interest and tags 10% per month which should have been made part of the agreement but was not. Exhibits 3 and 3a appear to be a gentleman association/agreement and could also be the trap into which the Appellant has fallen.
The learned trial Judge at page 5 of the Judgment (i.e. page 111 of the record) held that:-

“the provision of the 10% interest per month in default of payment of the contractual sum was unilaterally introduced by the Plaintiff vide Exhibit 4. It was not part of the terms of the contractual agreement contained in Exhibit 3 and 3A. I am of the considered view that such later in the day inclusion of additional terms cannot in law form part of the terms of the contractual relationship between the Plaintiff and the Defendants. I am not persuaded by the submission of the learned counsel for the Plaintiffs that since the Defendants signed Exhibit 4, they are bound by whatever is contained therein having due regards to the facts and circumstances of this case. I am of the view and I so hold that the Plaintiffs are not entitled to their head of claim of N4, 242,383,20k as interest. The head of claim is accordingly dismissed”.

It would wrought great injustice to hold that the Respondents should not be held responsible for the breach of their own condition/term in the LPO. They failed to pay within 14 days after supply.

Agreed that the 10% interest was not negotiated. However, it is a business and they agreed to the term of payment to be “14 days after supply”. Payment for a business venture cannot be indefinite otherwise the business would fold up. The Respondent have not denied that they defaulted in the payment.

When the invoice was served on them, they ratified same by acquiesce, they did not raise any objection to the 10% clause endorsed on the invoice. Infact, they totally ignored the Appellants and all their demands for payment. The Respondents cannot eat their cake and have it. That would be jungle justice and the law must step in to provide a remedy.
The Respondents are deemed to have admitted the claim of the Appellants.

Having breached the term of the agreement which they drafted and offered to the Appellants, they are bound by the terms and they have failed to fulfil the term of payment 14 days after supply. They are liable in their breach and ought to pay.

Equity demands that where payment is not made 14 days after supply, there ought to be some compensation. However, whether 10% should be the amount is what should be considered, since the 10% interest in default was not included on the LPO which is a document of the Respondent while the invoice which has 10% is that of the Appellant?

The Appellant has adduced evidence before the court to show that the Respondents breached their own terms of “payment 14 days after supply’. They paid several months/years after the expiration of “14 days after supply’ they are yet to pay! It clearly would be unjust to let them get away with their default in payment which is a clear breach of the agreement they crafted and was ratified by the manager.

On the claim for delivery charge, the learned trial Judge held at page 6 of the Judgment (i. e. page 112 of the record) that:-

“having earlier held above that no party would be allowed to unilaterally bring into the terms of a contract at a later point in time any term that was not initially contemplated by the parties, I am prepared to hold and I so hold that the unilateral incorporation of a particular amount as delivery charges in Exhibit 4 will not in law entitle the Plaintiff to the claim of N294, 977.50k on this head of claim as payment for delivery charge was not part of the terms of the contract contained in Exhibits 3 and 3a. The head of claim is also dismissed”.

I agree. The Appellant should have thought of delivery charges and incorporated same in the LPO, if delivery is not part of the supply regime.

Judgment is overturned to the extent that Appeal is allowed. The Judgment of the High Court of Oyo State delivered by Hon. Justice Mashud A. A. Abass (J) is hereby revised by the grant of the interest claimed by the Appellant in addition to the outstanding balance of N5, 772, 950.00 and N227, 050.00 allegedly paid to Elder Wole Ogunnowo as found by the learned trial Judge.

It is hereby so ordered.

A cost of N30, 000.00 is awarded.

HARUNA SIMON TSAMMANI, J.C.A: I read in advance the judgment delivered by my learned brother, M. B, Dongban-Mensem, JCA.

I agree with the reasoning and conclusion of my learned brother on the sole issue distilled for determination from the three grounds of appeal.

In the instant case, apart from the Local Purchase Order (L.P.O.) which formed the Kernel of the contractual relationship between the parties, there was also Exhibit 3; 3(a) and (4). Those documents together completed the rights and obligations of the parties in the contractual relationship. The learned trial Judge erred when he excluded or ignored those documents in the construction of the contractual relationship of the parties.

On that reason and the detailed reasons contained in the lead judgment, I will also allow the appeal. Appeal is allowed by me.

I abide by the consequential orders made.

MUDASIRU NASIRU ONIYANGI, J.C.A: I have read the lead judgment by my learned brother Monica Bolna’an Dongban-Mensem JCA, wherein he over turned the judgment of the lower court (High Court of Oyo State delivered by Hon. Justice Mashud A. A. Abass (J) and revising same by the granting of interest claimed by the appellant in addition to the outstanding balance of N5,772,950.00 and N227,050.00 allegedly paid to Elder Wole Ogunnowo as found by the learned trial judge in answer to Grounds 1 and 2 of the Grounds of Appeal.

I cannot but agree with the finding of my learned brother on pages 13 to 17 of the lead judgment. Exhibit 4 is a product of the existing relationship between the parties as contained in Exhibit 3 and 34 which stipulates the issue of discount, delivery period, condition of the goods to be delivered and the period for payment. Exhibit 4 is very clear and unambiguous. It metamorphosed into the existing relationship (agreement) subsisting between the parties (Appellant and Respondent). It constitutes a term of the contractual relationship. Where the terms of the contract are clear and unambiguous. The duty of the court is to give effect to them and on no account rewrite the contract for the parties. In the absence of fraud, duress, misrepresentation, the parties are bound by the terms of the contract they freely entered into. See JFS Inv. Ltd. v. Brawal Line Ltd (2010) 12 SC (pt. 1) p. 110 at 162, Amede v. UBA (2006) 8 NWLR (pt.1090) pg. 623 at 659-660.

Having said this much, I agree entirely with the lead judgment and also overturn the judgment of the court below and revise same by the grant of the interest claimed by the appellant in addition to the outstanding balance of N5, 772,950:00 and N227,050:00 allegedly paid to Elder Wole Ogunnowo as found by Hon. Justice Mashud A.A. Abass (J).

I also award N30,000.00 cost in favour of the Appellant.

Appearances

Ademola OlowoyeyeFor Appellant

AND

Ajibola IgeFor Respondent