JOS FLOUR MILLS LTD & ANOR v. GIWA & ORS (2020)

JOS FLOUR MILLS LTD & ANOR v. GIWA & ORS

(2020)LCN/14736(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Wednesday, November 11, 2020

CA/J/321/2018

RATIO

CONTRACT: WHAT AMOUNTS TO A BREACH OF CONTRACT

The complaint here is breach of the terms of the tenancy contract. One may ask what is breach of contract. In the case of PAN BISBILDER (NIG) LTD V FIRST BANK (NIG) LTD (2000) 1 SC 71 The Apex Court said thus:
“a breach of contract means the party has acted contrary to the terms of the contract either by no performance of a term or performing it not in accordance with its terms”
See also NWAOLISAH V NWABUFOH (2011) LPELR – 2115. The consequence of breach of contract is payment of damages by the party responsible for the breach to the innocent party. see BILANTE INT’L LTD V NDIC (2011) LPELR (781) at 32; ECOSOLAR INT. LTD & ANOR V RIVERBANK CAPITAL LTD (2020) LPELR – 49594, ALHAJI USMAN DANTATA & ANOR V MOUKTAR MOHAMMED (2000) LPELR – 925. A claimant in an action for breach of contract must proof not only that there was a breach but also that there was in existence an enforceable contract which was breached. See BEST (NIG) LTD V BLACKWOOD HODGE (NIG) LTD & ORS (2011) LPELR – 776. PER ONIYANGI, J.C.A.

WORDS AND PHRASES: MEANING OF AGREEMENT

In the Black’s Law Dictionary, 9th Edition, “Agreement” is define thus:
“A mutual understanding between two or more persons about their relative right and duties regarding past or future performance of mutual assent by two or more persons”
See the case of HRH EZE YOUNG OGBONNA AND ANOR V CHIEF NILSON OGBUJI & ORS (2013) LPELR – 21945; ELDER ESEME AKPAN V EKANABASI ASIBONE UBONG (2013) LPELR – 20418. PER ONIYANGI, J.C.A.

CONTRACT: MAIN PURPOSE OF ANY LEGAL AGREEMENT

It is trite that the main purpose of any legal agreement is to set out clearly what the parties agreed upon. See HENRISON OKECHUKWU V HUMPHERY C. ONUORAH (2000) LPELR – 2431. Let me also add that parties are bound by the agreement they freely entered into. See JOHN OFORISHE V NIGERIAN GAS COMPANY LTD (2017) LPELR – 42766. PER ONIYANGI, J.C.A.
MAXIM: MEANING OF THE MAXIM “EXPRESSIO FACIT CESSARE TACTITUM”

This situation brings to focus the Latin maxim “EXPRESSIO FACIT CESSARE TACTITUM” meaning: “the express mention of certain thing is the exclusion of other not mentioned”

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

1. JOS FLOUR MILLS LIMITED 2. MR. I. D. SAMPATI APPELANT(S)

And

1. MR. CHRISTOPHER GIWA 2. MR. THOMAS M. MAMZA 3. MR. AJAYI RESPONDENT(S)

MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment): At the High Court of Justice No. 1 in Jos Judicial Division of Plateau State, the Appellants as Plaintiffs in their suit commenced by way of a Writ of Summons claimed against the Respondents as Defendants jointly and severally in paragraph 26 of their Statement of Claim as follows: (See pages 4 – 8 of the Record of Appeal and paragraph 26 of the Statement of Claim dated 2nd day of October, 2015 and filed on 12TH October, 2015) thus:
Paragraph 26:-
“WHEREUPON the Plaintiffs claimed against the Defendants jointly and severally as follow:
(a) Possession of the Ware House No. 1 being locked up and occupied by the Defendants in the Plaintiffs’ factory premises at along Abattoir Road, Jos, by Airforce Base Jos.
(b) One Hundred Million Naira (N100,000,000.00) only being loss of earnings from contracts which the Plaintiffs could not execute due to lack of power caused by the Defendants.
(c) Twenty Million Naira (N20,000,000.00) only being damages for breach of contract.
(d) One Million, Three Hundred and Fifty Thousand Naira (N1,350,000.00) only being

arrears of rent from 1st February, 2015 to 31st October, 2015 calculated protata at an annual rent of N1,800,000.00 and N150,000.00 monthly from November, 2015 till vacant possession is delivered to the Plaintiffs.
(e) One Million, Eight Hundred and Fifty Thousand and Fifty Thousand Naira (N1,850,000.00) only being cost of new 500KVA Transformer, Crane Lifting and Transportation.
(f) Cost of this action.”

Parties joined issues on the foregoing claims by the Appellants vide the order of the trial Court. The case of the Plaintiffs which has been hitherto closed when the Defendants failed to file his defence was reopened. The Respondents filed their joint statement of defence and recalled the witnesses of the Plaintiffs who had testified and cross examined them. The Defendants called two witnesses and closed their case.

The learned trial Chief Judge (as he then was) in his considered judgment delivered on 28th day of August, 2017, concluded as follows. (See page 252 of the Record of Appeal.)
“In the light of the foregoing, I find that the contention of the Plaintiff is shrouded in lots of doubt. In the same vain, the

contention that the 1st Defendant vandalized or left to be vandalized transformer has not been proved on the preponderance of evidence. This is because the 1st Defendant had to buy a generating plant for use in the premises which is not being challenged. In the circumstances, I find that the Plaintiffs claim ought to be and is hereby dismissed.”

The Appellant was not happy with the foregoing outcome hence his appeal vide his Notice of Appeal dated 27th day of November, 2017 and filed same date consisting of Eight Grounds of Appeal. Therein he sought for the following reliefs (See pages 260 – 261 of the Record of Appeal.)

RELIEFS SOUGHT FROM THE COURT OF APPEAL:
“(a) Allow the appeal.
(b) Set aside the judgment of the lower Court delivered by Hon. Justice P. D. Damulak on the 28th day of August, 2017 in suit No. PLD/J157/2015.
(c) Enter judgment for the Appellant as per the reliefs in the Writ of Summons and the statement of claim filed before the lower Court in Re: suit No. PLD/J157/2015.”
Respective counsel filed and exchanged their briefs of argument.

APPELLANTS’ BRIEF OF ARGUMENT
The Appellants’ brief of argument authored by G. U. Ofen-Imu of Counsel is dated and filed on the 19th day of March, 2019. Same was deemed vide the order of this Court as properly filed and served on the 23rd day of May, 2019. Therein he presented the following two issues for the determination of the appeal.
(1) Whether or not from the totality of the evidence adduced before the trial Court the Defendants did not breach terms of the tenancy contract and liable for all the losses suffered by the Plaintiffs as a result of the breach. (Grounds 1, 2, 3, 5, 6, 7 and 8)
(2) Whether or not the judgment delivered by the trial Court after the constitutional period provided for delivery of judgment has not occasioned a miscarriage of justice in the circumstances (Grounds 1 and 4)

RESPONDENTS’ BRIEF OF ARGUMENT
In the Respondents brief settled by H. S. Ardzard, Esq. dated and filed on the 30th day of August, 2019, the following issues are equally submitted for the determination of this appeal:
(1) Whether the learned trial judge evaluated the evidence adduced at the trial before arriving at his judgment. (Grounds 2 and 3)
(2) Whether

the learned trial judge was right in dismissing the Appellants’ suit (Grounds 1, 5, 6, 7 and 8)
(3) Whether the judgment of the learned trial judge delivered on 28th August, 2017 is valid (Ground 4)

Upon a careful reading of all the processes filed, the judgment appealed against and the Notice and Ground of appeal, I am of the firm view that adopting the issues formulated by the learned Counsel representing the Appellants for the determination of this appeal would be ideal in the circumstances of this appeal.

ISSUE ONE
Whether or not from the totality of the evidence adduced before the trial Court the Defendants did not breach terms of the tenancy contract and liable for all the losses suffered by the Plaintiffs as a result of the breach.
The contention of the Appellants is that since there is no dispute between the parties on the existence of a valid tenancy agreement (Exhibit “A”), the evidence of DW2 who testified at the instance of the 1st Defendant as the fellow who signed the agreement on behalf of the 1st Respondent constitutes evidence against interest and that it shows that those facts needs no further proof.

He referred to the following cases BELLO V GOVT GOMBE STATE (2016) 8 NWLR (Pt. 1514) 219, JUKOK INT’L LIMITED V DIAMOND BANK (2016) 6 NWLR (Pt. 1507) 55. He then added that the standard of proof in civil cases is on a balance of probability or preponderance of evidence. He relied on the cases of STERLING BANK PLC V. FALOLA (2015) 5 NWLR (Pt. 1453) 405 AT 430; OHOCHUKWU V. A.G. RIVERS STATE (2012) 2 SCNJ 58 at 86 and 88. In view of the foregoing he argued that the bone of contention is whether there was a breach of the agreement between the parties by the Defendants (Respondents) by their act of removing the transformer from the premises without the prior consent of the Plaintiffs. He referred to the evidence of DW1 on pages 105-108 and 221-222 of the Record of Appeal. DW1 not being a party to the agreement renders his testimony to amount to hear say evidence. He relied on Sections 37 and 38 of the Evidence Act, 2011, CAP. E. 14 Laws of Federation of Nigeria. On admissibility or otherwise of hearsay evidence, he relied on the case of PUNCH (NIG) LIMITED V JUMSUM (NIG) (2011) 12 NWLR (Pt. 1260) 167 at 184. He contended that PW1 was never mentioned in the

Defendant’s pleading, therefore he should be seen as a stranger in this case and hence his testimony is inadmissible. The only evidence for consideration is the evidence of the 2nd Defendant (DW2). He describe DW2 as agent of the DW1 and that Exhibit A is the valid contract between the Appellant and the 1st Respondent and that the said Exhibit is the basis upon which 1st Respondent gain possession of the Appellant’s Ware House. He argued further that the defence having admitted that the 1st Respondent was in possession of the Respondent’s Ware house No. 1 as a tenant for the first one year and thereafter the second year paying the sum of N1,800,000.00 as yearly rent, the Respondent cannot now deny Exhibit A. He argued that the lower Court cannot be right to hold that the Appellant did not prove the claim. What is admitted need no further proof. He relied on the case of AKPAN V UBN PLC (2011) 2 NWLR (Pt. 1231) 399 at 403. It is the case of the Appellant that the 1st Respondent removed the transformer from the premises for repairs without consent of the Appellant and also the 3rd Defendant also removed the oil of the transformer with the

intention of selling it. By that act the said transformer was vandalizes and that constitutes a breach of the express and clear term of the agreement. For the foregoing, the Appellant said he lost a contract worth Millions of Naira. He argued further that it was for the vandalisation of the transformer that made the Appellant purchase another transformer worth Millions of Naira. He submitted that from the foregoing, the Respondents held possession of the Appellant’s Warehouse even after the expiration of the tenancy terms which is contrary to the terms agreed upon in Exhibit “A” (Tenancy Agreement) and thereby constitute a breach of the terms of the tenancy contract and by which the Plaintiff is entitled to the reliefs sought. He urge the Court to resolve the issue in favour of the Appellants.

The reaction of the Respondent to the foregoing is that the learned trial judge properly evaluated the evidence before it before coming to the conclusion reached. By this, he conceded that a trial judge has the duty to evaluate the evidence adduced before arriving at his conclusion. He relied on the case of OYEWOLE V AKANDE (2009) ALL FWLR (Pt. 491)

813 at 835 paras. D-E and pages 241 – 247 and pages 247 – 252 of the Record of Appeal. He contended that in no where did the Appellant distinctly identify or specify the evidence adduced by them which was not evaluated by the learned trial judge. He referred to the following cases AKANMODE V DINO (2009) ALL FWLR (Pt. 471) 929 at 956 para. B; BABA AHMED V ADAMU (2009) ALL FWLR (Pt. 473) 1257 at 1269 paras. F-H. it is his contention that the pronouncement of the trial Court that the burden of proof is always on the Plaintiff and never shift is an “obiter dictum” and not a “ratio decidendi”. He relied on the cases of UWAOKOP V U.B.A PLC (2013) ALL FWLR (Pt. 690) 1316 at 1350-1351 paras. D-C; BUHARI V INEC (2009) ALL FWLR (Pt. 459) 419 at 530 para. II. On whether the trial judge was right in dismissing the Appellant case, he urge the Court to answer the question in the affirmative. It is his argument that the issues placed before the trial Court are:
(1) Whether there existed a tenancy agreement between the Plaintiffs (now Appellants) and the 1st Defendant (now 1st Respondent)
(2) Whether at the end of the tenancy the

1st Respondent vacated the premises.
(3) Whether in the course of the tenancy the Respondents removed and vandalized the transformer supplying electricity to the premises where the Warehouse that was rented by the 1st Respondent was located and thereby occasioning loss of earning to the Appellant.

He argued that the learned trial judge made findings that there existed tenancy agreement between parties but did not say anything as to when the said tenancy was determined since it was not an issue before the Court but by their pleadings and testimonies it could be said that the tenancy was determined by effusion of time on 31st January, 2015. For this, he relied on paragraph 9 of the statement of claim on page 5 of the record, paragraph 10 of the witness statement on Oath of PW3 (I.D Sampati on page 12 of the Record). The witness statement on Oath of PW2 (Garkiye Sampati on page 17 of the Record); paragraph 8 of the Joint Statement of Defence on page 100 of the Record and paragraph 5 of the witness statement of DW1 Gams Monday Danjuma on page 105 of the Record. Therefore the question of when the tenancy terminated was settled and was not a life issue

before the trial Court. Therefore the trial Court has no business in determining when and how the tenancy was determined. He submitted that it is settled law that Courts determines life issues before them. He rely on the cases of ODOM V PDP (2013) ALL FWLR (Pt. 698) 972 at 993 para. D; NWORA V NWABUNZE (2012) ALL FWLR (Pt. 613) 1824 at 1838 paras. G-H. He contended that the life issue before the trial Court was whether at the end of the tenancy the 1st Respondent vacated the premises. Against the contention of the Appellant that the trial judge speculated on the point, he argued that the Respondent vacated the premises at the end of the tenancy. This, he said is born out of the pleadings of parties and evidence adduced by parties. He referred to paragraph 24 of the Statement of Claim, paragraph 26 of the witness statement on Oath of PW3 on page 14 and in his cross examination in page 219 of the Record; paragraph 26 of the witness deposition of PW2 in page 19 of the record of appeal. He added that in paragraph 10 of the joint statement of defence in page 100 of the Record, the Defendant pleaded that at the expiration of the tenancy, he vacated the Warehouse. He

argued further that it is the duty of the Appellant to establish when the Respondents vacated as against the date pleaded by the Respondent. Court’s decisions are not based on conjecture. He relied on the cases of O.B.M.C. LTD V M.B.A.S. LTD (2005) ALL FWLR (Pt. 261) at 234 para. F; AGIP (NIG) LTD V AGIP PETROLEUM INT’L (2010) ALL FWLR (Pt. 520) 1198 at 1249 paras. A-B; OLUFEAGBA V ABDUR-RAHEEM (2010) ALL FWLR (Pt. 512) 1033) at 1074 para. C. He submitted that by the evidence of PW2 and PW3, it cannot be said that the Appellant did not know when the Respondent vacated. It is the duty of the Appellant to proof where he has a contrary view. He referred to the case of AKANMODE V DINO (supra); GAJI V PAYE (2003) 8 NWLR (Pt. 823) 588 at 605. He referred to paragraph 10 of the joint statement of defence where the Respondent pleaded that when the tenancy expired he vacated the premises and since no keys were given to him when he took occupation, he had no key to submit when he vacated. He contended that the Plaintiff said he had a digital picture of the premises showing that it is under lock and key but failed to produce the picture before the trial Court.

This he said because the picture if produced will be unfavourable to the Appellant. He relied on Section 167(d) of the Evidence Act and the case of SHOBANKE V SARKI (2006) ALL FWLR (Pt. 292) 131 at 140 – 141 paras. F-A. To also show that the Respondent did not put any padlock on the door, he relied on the testimony of DW2 (Paragraphs 15 & 16 of PW2 witness statement on Oath in page 115 of the Record). To buttress this, DW2 posited that he has taken other interested people to the premises with a view of renting same at the instruction of the Appellant. On the issue of whether or not the Respondent removed the transformer for repairs, it as his argument that the agreement did not contain any thing about the transformer and that the learned trial judge also observe same accordingly. He added that the Appellant cannot read into the agreement what it did not contain. He refer to the case of AFRICA INT’L BANK LTD v. I.D.S. LTD (2012) ALL FWLR (Pt. 656) 413. Paras. G-H. He argued further that PW1 of the Plaintiff gave evidence to the fact that prior to the occupation of the premises the Plaintiff has invited him on two occasions to repair the

transformer. This he said shows that the transformer has not been in good condition. This corroborates the averment of DW1 in paras. 12 and 15 on page 101 (Joint Statement of Defence) and paragraph 8 of DW1 witness statement on Oath. On the allegation of removal of the transformer oil. He argued that it is a criminal offence in nature and the proof of which is beyond reasonable doubt. He relied on the case of OSETOLA V STATE (2012) ALL FWLR (Pt. 649) 1020 at 1041 and 1044. The issue of alleged removal of transformer oil and sale was merely an imagination of the Appellants or at best it bordered on mere suspicion. Suspicion however strong cannot constitute proof. He relied on the case of NSOFOR V STATE (2005) ALL FWLR (Pt. 242) 397 at 417- 418. He contended that there is no credible evidence to establish the allegation that the 3rd Respondent removed the transformer oil for sale. He relied on the case of UKEJE V UKEJE (2014) ALL FWLR (Pt. 730) 1323 at 1346 para. D. It is his contention that a party need not give evidence on his own behalf. He relied on the cases of AGBI V OGBEH (2006) ALL FWLR (Pt. 329) 941 at 973 paras. G-H; STERLING BANK PLC V FALOLA (2015)

ALL FWLR (Pt. 774) 1 at 29 paras. E-F.

On the contention that the Respondent merely denied the allegation of the Appellants in his pleading but led no evidence in defence of same, he argued that the submission is misleading because the evidence of DW1 & DW2 are on the pleaded facts. Further to this he added that not pleading or oral evidence can be used to vary or contradict the content of Exhibit “A”. He referred to the following case BUNGE V GOVERNOR OF RIVERS STATE (2006) ALL FWLR (Pt. 325) 1; DELTA STATE AGRICULTURAL DEVELOPMENT PROGRAMME, ABUJA V OFONYE (2008) ALL FWLR (Pt. 402) 1068. He added that Courts are not to create contract between parties. He relied on the case of JOSEPH V KWARA STATE POLYTECHNIC (2014) ALL FWLR (Pt. 750) 1215 at 1236 para. B.

On Exhibit B, which is to establish that the Plaintiff purchased another transformer for the premises, he submitted that Exhibit B is a receipt issued to Prodess Nigeria Ltd. This he said was confirmed by PW3. He contended that it is immoral and dishonest for the Appellants to use a transformer purchased by Prodess Nigeria Limited which had no contract whatsoever with the

Respondents to maintain a claim against the Respondents. He added that the learned trial judge was right to dismiss the Appellant’s claim because they have no legal right to claim the cost of a new 500KVA transformer or loss of earnings or damages for breach of contract against the Respondents.
He urged the Curt to resolve the issue against the Appellants.

In my view the basic question is whether or not the Defendant breached the terms of the tenancy agreement to warrant being held liable for all the alleged losses allegedly suffered by the Plaintiff. From the respective averments by parties and testimonies before the trial Court, it is not in dispute that there existed a Tenancy Agreement between the Plaintiff and the 1st Respondent. Both parties in my view are ad idem that the agreement is that tendered as Exhibit A. Based on this issue under consideration, the question is whether the Respondent breach the terms of the tenancy agreement. The contention of the Appellant is that the Respondents after vacating the premises locked the premises with padlock. Not this alone, that the locking of the premises means the Respondent is still in

occupation and hence liable to payment of rent. In addition, that the Respondent vandalized or caused the vandalisation of the Transformer supplying electricity to the premises and as a result he lost a contract and hence the Respondent is liable to damages for his inability to secure the said contract. All these put together according to the Appellant constitute the breach of contract (Tenancy) and thereby warranting his claim for the reliefs sought at the trial Court which were refused and dismissed and hence this appeal.

32; ECOSOLAR INT. LTD & ANOR V RIVERBANK CAPITAL LTD (2020) LPELR – 49594, ALHAJI USMAN DANTATA & ANOR V MOUKTAR MOHAMMED (2000) LPELR – 925. A claimant in an action for breach of contract must proof not only that there was a breach but also that there was in existence an enforceable contract which was breached. See BEST (NIG) LTD V BLACKWOOD HODGE (NIG) LTD & ORS (2011) LPELR – 776. Bearing the foregoing in mind, I consider it apt to visit the terms of the agreement between the parties with a view of finding out whether or not the Defendants breached any of the terms of agreement between them and the Plaintiff/Appellants. In the Black’s Law Dictionary, 9th Edition, “Agreement” is define thus:
“A mutual understanding between two or more persons about their relative right and duties regarding past or future performance of mutual assent by two or more persons”
See the case of HRH EZE YOUNG OGBONNA AND ANOR V CHIEF NILSON OGBUJI & ORS (2013) LPELR – 21945; ELDER ESEME AKPAN V EKANABASI ASIBONE UBONG (2013) LPELR – 20418. It is trite that the main purpose of any legal agreement

is to set out clearly what the parties agreed upon. See HENRISON OKECHUKWU V HUMPHERY C. ONUORAH (2000) LPELR – 2431. Let me also add that parties are bound by the agreement they freely entered into. See JOHN OFORISHE V NIGERIAN GAS COMPANY LTD (2017) LPELR – 42766.
The agreement between the contending parties is that tendered and admitted as Exhibit “A” therein are the following covenants
“(a) To pay the said rent at the time and in the manner aforesaid
(b) To meet, settle in full all charges in respect of the consumption of water and electricity and if necessary, services assessed in respect of the premises with effect from the 1st February, 2013 until the expiration of the tenancy.
(c) To keep the interior and surrounding of the premise in good and tenantable, condition and decoration to the satisfaction of the landlord.
(d) On termination of the tenancy quietly deliver up the premises to the landlord or his agent in good repair and condition aforesaid.
(NO PARAGRAPH E)
(f) Nor without the consent of the landlord, make or permit or offer to be made any alteration to the said premises.
(g)

Not to assign, underlet or part with the possession of the said premises or any part thereof without written consent of the landlord first sought and obtained.
(h) Not to do or permit or offer to be done on the premises any act or thing which shall or may be an annoyance or a nuisance to the landlord, or the occupier of any adjoining premises.
(i) Not to use or offer or permit the land premises to be used otherwise than for Warehouse/production use.
(j) To permit the Landlord or his agent to enter upon the premises at reasonable time for the purpose of inspecting the conditions thereof.
(k) Not to fix to the premises a signboard or notice of any description without the consent of the landlord or his agent
The Landlord agrees with the tenant as follows:
(a) To provide proof, if required by the tenant, all charges for electricity, water, telephone, if applicable, up to the commencement of the tenancy, have been settled.
(b) To permit the tenant if he shall pay the said rent and observe the agreement herein as his part contended to enjoy the premises during the continuance of the tenancy without any disturbance by the landlord

or any lawfully claiming under or in trust for him.
(c) That the landlord/tenant both shall have the option to renew the tenancy for another term at the prevailing market rent provided such notice is given in writing three calendar months prior to the expiration of the present tenancy.
Provide always and it is expressly agreed as follows:
That if the rent hereby reserved or any part thereof shall fall in arrears one month after same is due or in the event of any breach of agreement in the tenancy herein contained, the landlord or his agent may re-enter upon the premises and thereupon this tenancy shall be absolutely determined.”
Considering the complaint of the Plaintiff and this issue under discourse, and the evidence before the trial Court, none of the foregoing covenant can be said to have been violated. The issue of the alleged or purported repair of the transformer without permission sought cannot be said to be part of the terms of the agreement. This situation brings to focus the Latin maxim “EXPRESSIO FACIT CESSARE TACTITUM” meaning: “the express mention of certain thing is the exclusion of other not mentioned”

In the case of AGBAREH V MIMRA (2008) 2 NWLR (Pt. 1071) 378 at 437 paras. D-E. Akintan JSC as then was said thus:
“The term means that the expression of one person or thing implies the exclusion of other person or things of the same class but which are not mentioned.”
See also AMGBARE V SLYVA (2007) 18 NWLR (Pt. 1065) 1.
Equally by paragraph “D” of the term of agreement which say thus:
“On termination of the tenancy quietly deliver up the premises to the landlord or his agent in good repair and condition aforesaid.”
From the available evidence on record, it is apparent that the Defendant vacated the premise. The contention of the Appellant that the Respondent locked the warehouse has not be substantiated in my humble view. There is that uncontroverted evidence that when the Respondents took possession of the premises, there were no locks at the entrance of the warehouse and hence he left it unlocked when he vacated and had no keys to hand over since when he took possession no keys were handed over to him.
As I said before, since the issue of repair or maintenance or

otherwise of the transformer has not been made a term or condition of the tenancy agreement, the claim of the Plaintiff for the refund of cost of replacing the transformer in the premises cannot stand. In this circumstances the Respondent cannot be said to be the cause of the expenditure if any. The supporting receipt meant to establish the purchase of a transformer was issued in the name of a complete stranger to the tenancy agreement. It is the law that where the terms of the contract are clear as in the appeal at hand and unambiguous, the duty of the Court is to give effect to them and on no account the Court will rewrite the contract for the parties. 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 p. 162. Paras. 5 – 15, METIBAIYE V NARELLI INT. LTD (2009) 16 NWLR (Pt. 1167) pg. 326 at 349; AMEDE V U.B.A. (2008) 8 NWLR (Pt. 1090) pg. 623 at 659-660.
For all the foregoing, I am completely hesitant to fault the finding of the trial Court and hence, I am of the ardent view that the Respondent did not breach any of the terms of the agreement as contained in

Exhibit “A” entered into by both parties. Therefore I answer the question in the negative and resolve this issue against the Appellant.

ISSUE TWO
Whether or not the judgment delivered by the trial Court after the statutory period provided has not occasioned a miscarriage of justice in the circumstances. (Grounds 1 & 4)

Relying on the provision of Section 294(1) of the Constitution of the Federal Republic of Nigeria 1999 and the facts as to when the final judgment was delivered in the suit subject of this appeal, that final address were adopted on the 28th of April, 2017 and judgment was delivered on 28th of August 2017, four month thereafter instead of the 90 days prescribed under Section 294(1) of the 1999 Constitution herein before referred to the Appellant contended that the delay has occasioned a miscarriage of justice. He relied on the following cases ABDULLAHI V HEDIMA (2011) 2 NWLR (Pt. 1230) 42 at 61 paras. C-D, F; I.B.B. INTD. LTD V MUTUNCI CO. (NIG.) LTD (2012) 6 NWLR (Pt. 1297) 487 at 514 paras. E-G; KOLAWOLE INT CO. LTD V A.G. FEDERATION (2012) 14 NWLR (Pt. 1320) 221 at 245. He argued further that the time obviously

affected the trial Court’s perception, evaluation and appreciation of the facts, evidence and testimonies of witnesses as same were not all captured in the judgment thereby making the judgment perversed. He relied on the case of BROWN V STATE (2012) 3 NWLR (Pt. 1287) 207 at 242 paras. E-F. He added that from the pleadings and evidence before the trial Court, it was established that the Appellant and 1st Respondent entered into a tenancy agreement of the Appellant’s Warehouse and which was signed on behalf of the 1st Respondent by the 2nd Respondent who acted as his agent. This he said was never rebutted by the Respondent and that the terms of the agreement were expressly stated on the tenancy agreement tendered as Exhibit A. He submitted that the 1st Respondent breached the terms of the agreement by tampering with the transformer in the premises without prior consent of the Appellant. That the 3rd Defendant also removed the oil in the transformer and attempted to sell same contrary to the terms of the contract. He submitted that the foregoing facts were blurred and not properly perceived by the lower Court at the time of writing the judgment. It is

his case that by the finding of the learned trial judge. It is obvious that he has completely lost grip of the facts of the case, issues joined as well as the testimonies of witnesses called. The inordinate delay in delivery of the said judgment beyond the statutory prescribed time obviously affected the evaluation of the evidence and ascription of probative value to the evidence hence a miscarriage of justice. Further, he argued that it is trite that judgment of Court do not become nullity only when it is delivered outside or later than the statutory time of ninety days, but where it is shown that such delay occasioned a miscarriage of justice, such a judgment can be nullified. He relied on the following cases ABDULLAHI V HEDIMA (2011) 2 NWLR (Pt. 1230) 42 @ 6, paras. D-E; KOLAWOLE IND. CO. LTD V A.G. FEDERATION (2012) 14 NWLR (Pt. 1320) 221 at 245 paras. E-G.

It is his contention that if the trial Court had written the judgment within the stipulated time when the evidence was fresh, the lower Court would have resolved the issues formulated and argued in issue one in favour of the Appellants. He added that the lower Court completely omitted to consider

and evaluate the evidence relating to loss of earning which was not rebutted or controverted by the Respondent and so also the quantum of damages for loss claimed. All these, he argued, are caused by the delay in delivery of the judgment.

He urged the Court to resolve the issue against the Respondent and in favour of the Appellant.

On behalf of the Respondent, it is submitted that the argument of the Appellant on this issue is not only misleading but also mischievous and totally lacking in bonafide. It is his contention that on the 28th day of August, 2017, when the matter came in for judgment, the learned trial judge drew the attention of parties to the fact that the three months for the delivery of judgment has elapsed. He added that the Counsel to the Appellant David Isaac, Esq. on the day in question applied to the Court for leave to re-adopt the final address of parties. He referred to page 1 of the 2nd supplementary record. The application was granted and hence Counsel representing the respective party re-adopted their address and the learned trial judge delivered the judgment. He added that it is a smack of dishonesty for the Appellant Counsel

to conceal from the Court the proceeding of the Court on 28th August, 2017 contained in the 2nd supplementary record. He submitted that Counsel has a duty to assist the Court in arriving at justice and not to mislead it. He relied on the case of NKUMA V ODILI (2006) ALL FWLR (Pt. 313) 24 at 40 paras. C-E. For the foregoing he argued that since Counsel re-adopted their final written address on 28th August, 2017 and the judgment was delivered on the same date, the trial Court could not be said to have delivered its judgment outside of the 90 days prescribed by Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999. In the alternative, he contended that the mere delivery of the judgment outside the 90 days per say does not warrant setting aside of the judgment of the lower Court. The Appellant must show that the delay occasioned a miscarriage of justice. He relied on the following cases ZONAMS CO. NIG LTD V TOFA GENERAL ENT. LTD (2006) ALL FWLR (Pt. 317) 515 at 528-529 paras. G-D. He contended that from the finding of the Court on page 247 of the record, it is not correct for the Appellant to argue that the fact of the existence of a tenancy

agreement between the parties was lost to the trial Judge. So also looking at pages 248-250, it cannot be said that the fact on the issue of removal of the transformer and that of the terms of the agreement are not lost. On the complaint that the trial Court failed to consider and evaluate the evidence relating to loss of earning, he submitted that since the Court found that the 1st Respondent vacated the premises at the end of tenancy and that he did not remove the transformer or vandalized it, the need to consider loss of earning based on the success of those issues becomes unnecessary. If the trial Court proceeded to make findings on the purported loss of earning, damages or losses, such would not have nothing to stand on. He added that it is trite law that you cannot put something on nothing and expect it to stand. He rely on MACFOY V U.A.C. (1962) SC 152. He urged the Court to resolve the issue in favour of the Respondent.

In the circumstance of all the foregoing arguments for and against, the question I consider germane is whether or not the judgment of the High Court of Justice Plateau State in suit No. PLD/J157/2015 delivered on the 28th of

August, 2017 outside the 90 days statutory period provided for under Section 294(1) of the 1999 Constitution has occasioned a miscarriage of justice.
Section 294(1) of the Constitution of the Federal Republic of Nigeria 1999 provided thus:
“Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final address and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof”
The complaint of the Appellants in the main is that the judgment was delivered after five months contrary to the 90 days provided for under Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 and by that, the learned trial judge has lost memory of the fact of the case and failed to properly evaluated the evidence in proof of the claim of the Appellant before the Court.
The reaction of the Respondents to the foregoing is that on the 28th day of August, 2017 the learned trial judge intimated parties of the cause of delay in the delivery of the judgment within the 90

days provided for under the Constitution and that the Appellants offered that they are ready to readopt their written address, and which they did. Thereafter on the same day the Court delivered the judgment. He argued that looking at the finding of the learned trial judge on pages 248-250 of the Record of Appeal where the Court resolved the issues on the allegations of the Appellant, it cannot be said that the learned trial judge has lost grip of the fact of the case and evidence adduced before the Court and that the judgment is a true reflection showing that the learned trial judge was fully abreast with the facts and that no miscarriage of justice occasioned.
Agree and going by the record of Appeal, and in particular the proceeding of 28th day of August, 2017, the judgment of the trial Court was delivered after 5 months contrary to the provision of Section 294(1) of the 1999 Constitution of the Federal Republic of Nigeria. For the foregoing reason, the Appellants called on the Court to set aside the judgment of the trial Court.
Under Section 294(5) of the same Constitution, which provides thus:
“The decision of a Court shall not be set

aside or treated as a nullity solely on the ground of non compliance with the provision of Subsection (1) of this Section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
By the foregoing provision whoever seeks refuge under Section 294(1) of the Constitution and asking the Court to set aside the judgment must satisfy the Court that for the delay, he has suffered a miscarriage of justice. Miscarriage of justice has been defined as a decision or outcome of judicial proceeding that is prejudicial or incompatible with the substantial right of parties. In the case of MORA V NWALUSI AND ORS (1962) 2 SCNLR 114, miscarriage of justice is defined thus:
“Miscarriage of justice means such a departure from the rules which permeates all procedure as to make that which happened not in the proper sense of the word a judicial procedure at all…. The violation of some principle of law or procedure must be such an erroneous proposition of law that if that proposition be correct the finding cannot stand, or it may be

the neglect of some principle of law or procedure, whose application will have the same effect. The question whether there is evidence on which the Court could arrive at their finding as such is a question of law.”
From the foregoing, it stands to reason that the task of determining whether there has been miscarriage of justice is to see whether on a proper direction the trial judge for the delay would have come to the same conclusion he had reached. If the conclusion would have been the same on a proper direction, then miscarriage of justice cannot be said to have occasioned regardless of the delay. See THE M. V. CECILIE MAERSK AND ORS V WINLINE NIG. LTD (2015) LPELR – 24582, BCC PLC V SKY INSPECTION NIG LTD (2002) 17 NWLR (Pt. 795) 86.
Bearing the foregoing in mind and consequent upon a sober reading of the judgment appealed against contained on pages 233 to 252, it cannot be said that the decision of the trial Court after a proper evaluation of the evidence before it and ascribing probative value to them is prejudicial and incompatible with the substantial right of parties in this appeal at hand. In my view which is predicated on my

consideration of the fact of the case and the evidence adduced and coupled with the evaluation carried out by the Court, the finding and conclusion reached the non compliance with Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 by the trial Court cannot be said to have caused any miscarriage of justice to the Appellant by the reason thereof. Not this alone, the Appellant has failed to show how the delay has adversely affected him nor that any miscarriage of justice is occasioned as a result of the delay. I therefore answer the question in the negative and resolve this issue against the Appellants.

Haven resolved the two issues against the Appellants, the result is that the appeal is bound to fail for being meritless. I accordingly so hold.

In consequence therefore the appeal is dismissed.
The judgment of the High Court of Justice Plateau State delivered on 28th day of August, 2017 in Suit No. PLD/J157/2015 Coram Hon. Justice P. D. Damulak former Chief Judge of Plateau State be and is hereby affirmed.
Parties to bear their respective costs.

TANI YUSUF HASSAN, J.C.A.: I read before now the lead judgment of my

learned brother, MUDASHIRU NASIRU ONIYANGI, JCA. I agree with the reasoning and conclusion dismissing the appeal for lacking in merit.
Parties to bear their respective costs.

BOLOUKUROMO MOSES UGO, J.C.A.: I read in draft the lead judgment of my learned brother MUDASHIRU NASIRU ONIYANGI, J.C.A., and I am in agreement with his reasoning and conclusion; accordingly I also dismiss the appeal.
I also order that parties bear their costs.

Appearances:

U. OFFEN-IMU, ESQ., with him, A. E. ALBARKA, ESQ. For Appellant(s)

Dr. H. S. ARDZARD, ESQ., with him, M. M. MANDONG, ESQ. For Respondent(s)