LBD INTL LTD v. VITOL EXPLORATION (NIG.) LTD
(2022)LCN/17028(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Tuesday, August 02, 2022
CA/L/797/2015
Before Our Lordships:
Obande Festus Ogbuinya Justice of the Court of Appeal
Onyekachi Aja Otisi Justice of the Court of Appeal
Peter Oyinkenimiemi Affen Justice of the Court of Appeal
Between
LBD INTERNATIONAL LIMITED APPELANT(S)
And
VITOL EXPLORATION NIGERIA LIMITED RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE TIME FOR A COURT TO DELIVER ITS JUDGEMENT
The imperative for every Court of law established under the Constitution to render its decision “not later than ninety days of conclusion of evidence and final addresses” has agitated and has been agitated in our Courts from time to time, and there is no paucity of dicta in this aspect of our adjectival law. The Constitution provides in s. 294(1) that: “Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof”; and in S. 294(5) that: “The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions 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”.
The above constitutional provision is clear as crystal and admits of no ambiguity, but it is needful to underscore two crucial points. The first is that even though S. 294(1) talks about delivery of judgment “not later than ninety days after conclusion of evidence and final addresses”, computation of time does not begin from the date of conclusion of evidence per se, but from the date of adoption of final addresses which often takes several weeks, if not months, after conclusion of evidence as provided in the various rules of Court. PER AFFEN, J.C.A.
THE POSITION OF LAW ON MISCARRIAGE OF JUSTICE
Miscarriage of justice entails failure of justice; justice not dispensed in consonance with the law; a mockery or caricature of the very object for which Courts of justice are constituted in the first place. In GBADAMOSI v DAIRO [2007] 3 NWLR (PT 1021) 282 at 306, Niki Tobi, JSC characterised miscarriage of justice as a “decision or outcome of legal proceedings that is prejudicial or inconsistent with the substantiated rights of the party… a reasonable probability of a more favourable outcome of the case for the party alleging it … injustice done to the party alleging it”. See also AIGBOBAHI v AIFUWA [2006] 6 NWLR (PT. 976) 270 at 290 and OJO v ANIBERE (2004) 5 SC (PT. 1) 1 at 7. It is justice misapplied, mis-appreciated or misappropriated; ill conduct on the part of the Court which amounts to injustice. See PAM & ANOR v MOHAMMED (2008) LPELR-2895(SC) and ONAGORUWA v STATE [1993] 7 NWLR (PT 303) 49. PER AFFEN, J.C.A.
THE POSITION OF LAW WHERE THERE IS AN ALLEGATION THAT MISCARRIAGE OF JUSTICE WAS OCCASSIONED
An allegation that miscarriage of justice was occasioned by the failure or neglect of a Court of trial to deliver its judgment within 90 days is a very serious one that ought not to be lightly made, a rather weighty burden is imposed on the alleger to produce convincing, tangible and credible evidence demonstrating that he actually suffered a miscarriage of justice. In the context of S. 294(1) and (5) CFRN, binding case law donates the proposition that there must be concrete evidence of failure of justice directly traceable to the very fact of non-delivery of decision within the constitutionally stipulated period of 90 days before any such decision can be declared a nullity on that score. See AKPAN v UMOH [1999] 11 NWLR (PT. 627) 349. A miscarriage of justice contemplated by S. 294(1) must be tangible and clear on the face of the proceedings [See OYEGOKE v IRIGUNA [2001] ALL FWLR (PT 75) 448 at 462 – 463], even as the emphasis is not on the length of time per se, but on the effect the delay produced in the mind of the trial judge. See DIBIAMAKA v OSAKWE [1989] 3 NWLR (PT. 107) 101. PER AFFEN, J.C.A.
THE INGREDIENTS OF A VALID CONTRACT
Placing reliance on TSOKWA MOTORS NIG LTD & ANOR v UNION BANK OF NIG. LTD. (1996) LPELR-3267 (SC), OMEGA BANK (NIG) PLC v O. B. C. LTD (2005) LPELR-2636 (SC) and EL SALEM (NIG) LTD v ODEH & ANOR (2018) LPELR-44450 (CA) PP. 23-24 on the ingredients of a valid contract, Vitol maintained that there was overwhelming documentary evidence showing the existence of a valid contract between the parties for sale/purchase of well casings including, notably, Exhibit P1 page 10 (i.e. Vitol’s letter of 19/9/07 titled “RE: OFFER OF TUBULARS”), which was accepted vide LBD’s email of 27/11/07 and letter dated 3/12/07 as rightly found by the lower Court. In Vitol’s estimation, subsequent emails exchanged between the parties which concretised the contract of sale over and beyond mere negotiation. It was argued that the lower Court rightly rejected LBD’s contention that the letter of 3/12/07 was a counter offer and that a contract may emerge from series of correspondence exchanged between two (or more) persons insofar as it is apparent that the parties have come to an agreement when the correspondence are read together as in the instant case, citing NNEJI v ZAKHEM CONST. (NIG) LTD [2006] NWLR (PT 994) 297 at 311 – 312 and SHELL B. P. PETROLEUM DEVELOPMENT COMPANY v JAMMAL ENGINEERING (NIG) LTD (1974) 4 SC 33 at 72. PER AFFEN, J.C.A.
WHETHER OR NOT PLEADINGS ARE BINDING ON PARTIES
The foregoing are the arguments put forward by the parties in respect of Grounds 1 and 2. It is merely restating the obvious that pleadings occupy a preeminent position and pride of place in the schema of adversarial proceedings initiated by writ of summons, they serve the purpose of procedural fairness. See BANQUE COMMERCIALE v AKHIL HOLDINGS (1990) CLR 279 at 286. They equally delineate or delimit the canvass and forensic contours of a civil suit and thereby eliminate the springing of surprise on the adversary. Hence, pleadings are forcefully binding on the parties as well as the Court. See GEORGE & ORS v DOMINION FLOUR MILLS LTD (1963) 1 ALL NLR 71, NIPC v THE THOMPSON ORGANISATION LTD & ORS (1969) NMLR 99, AMIDA & ORS v OSHOBOJA (1984) 7 S.C. 68 at 107 –per Aniagolu JSC and OVERSEAS CONSTRUCTION LIMITED v CREEK ENTERPRISES LIMITED [1985] 3 NWLR (PT. 13) 407 at 419 – per Oputa JSC. It is imperative that pleadings (which are meant primarily to let parties know each other’s case) should be sufficient, comprehensive and accurate. JAMES v MID MOTORS LIMITED (1978) 11-12 SC 31.
Averments in pleadings [which are usually set out seriatim in numbered paragraphs] must not be read disjunctively but in conjunction with the totality of the paragraphs taken as a whole in order that the facts averred may be properly ascertained. See PAN ASIAN AFRICAN CO. LTD v NATIONAL INSURANCE CO (NIG) LTD (1982) 9 SC 1 at 48 and TITILOYE v OLUPO [1991] 7 NWLR (PT. 205) 519 at 532. It is by reading the paragraphs conjunctively that the true direction or drift of the averments can be discovered, as subsequent paragraphs of the pleadings may provide the missing link or make clear any amphiboly or vagueness of an earlier paragraph standing alone. PER AFFEN, J.C.A.
PETER OYINKENIMIEMI AFFEN, J.C.A. (Delivering the Leading Judgment): Introduction
This appeal is an expression of the Appellant’s discontent with the judgment entered in favour of the Respondent by the High Court of Lagos State (coram: Olokoba, J.) on 29th April, 2015 in Suit No. LD/766/2009: Vitol Exploration Nigeria Limited v. LBD International Limited, which judgment lies at pp. 185 – 197 of the records. The Appellant, LBD International Limited (“LBD”) and the Respondent, Vitol Exploration Nigeria Limited (“Vitol”) are oil exploration companies duly incorporated and organised under the Laws of Nigeria. Vitol alleged that it sold certain 9–5/8 and 13–3/8 well casings to LBD which failed, neglected or refused to pay for them despite repeated demands. The well casings were jointly owned by both Vitol and Goland Petroleum Development Company Limited (“Goland”) at all material times, but Goland is said to have transferred to Vitol its title in the outstanding debt for the well casings under and by virtue of Dead of Discharge and Release dated 8/4/09.
By a writ of summons issued out of the Registry of the High Court of Lagos State on 15/5/09, Vitol (as claimant) claimed the sum of $703.080.00 “being the agreed price for the well casings” against LBD (as defendant). Vitol equally claimed prejudgment interest thereon calculated on the applicable LIBOR rate (as published on 19/10/07 when payment fell due) plus 3% calculated on a daily basis with effect from that date (i.e. 19/10/07) until judgment, as well as post-judgment interest of 15% per annum. LBD joined issues with Vitol vide a statement of defence, essentially denying the existence of any contract of sale of well casings and/or being indebted to Vitol in the sum claimed or at all. At the close of plenary trial (whereat both parties fielded one witness apiece), judgment was entered in favour of Vitol against LBD as aforesaid.
The Appellant (LBD) faults the judgment on four (4) grounds of appeal set out in the Amended Notice of Appeal filed on 14/10/20 but deemed properly filed and served on 3/3/22. In consonance with the practice and procedure for prosecuting and resisting civil appeals in this Court, the parties filed and exchanged briefs of arguments. The Amended Appellant’s Brief of Argument (filed on 14/10/2020) as well as the Respondent’s Brief (filed on 28/2/22) were deemed properly filed and served on 3/3/22. The Appellant’s counsel was absent at the hearing of this appeal on 24/5/22 and the Appellant’s Amended Brief was deemed argued pursuant to Order 19 Rule 4 of the Court of Appeal Rules 2021, whilst Festus Onyia, Esq., of counsel for the Respondent (who appeared with C. J. Ndubuisi, Esq.) adopted the Respondent’s Brief in urging the Court to dismiss the appeal.
Issues for determination
The three (3) issues distilled for determination in the Amended Appellant’s Brief of Argument, are:
(a) Whether the Honourable Lower Court was right in law in making a case for the Respondent different from the case before the Court.
(b) Whether there existed a valid contract of sale capable of binding the parties.
(c) In the light of the provision Section 294(1) of the 1999 Constitution as amended, whether the judgment of the trial Court delivered well over three months can be considered valid and sustainable having regard to the circumstances of this case.
The Respondent (Vitol) adopted the issues distilled by the Appellant but with a slight modification to the first issue, namely: “Whether the Honourable Lower Court made a case for the Respondent different from the case before the Court”. It cannot escape notice that the couching or phraseology of the Appellant’s first issue is conclusory and takes for granted that the lower Court has already been adjudged to have made a different case from what was pleaded, which is a conclusion that can only be reached at the end of the present endeavour. An issue for determination ought not be framed as a conclusory allegation; rather, it is meant to simply narrow down the relevant point(s) in issue by succinctly and clearly projecting the substance of the complaint requiring resolution by a Court or Tribunal. See CHIEF ITSEGHOSIMHE & ORS v CHIEF OGBETA & ORS [2002] FWLR (PT. 88) 862 at 868. It seems to me that the modification introduced by the Respondent (which projects the first issue in a neutral light) is perfectly in order. I accordingly adopt the issues distilled by the Appellant as modified by the Respondent in determining this appeal. For reasons that are obvious, we shall grapple first with issue 3 before proceeding to consider issues 1 and 2 which are intertwined, if at all.
Appellant’s submission on issue 3
The Appellant (LBD) called attention to the fact that final addresses were adopted on 8/10/13 but judgment was not delivered until almost two years later on 29th April, 2015, which is outside the 90 days stipulated in S. 294 (1) of 1999 Constitution, and insisted that miscarriage of justice was thereby occasioned and the judgment is liable to be set aside on that score. Citing ELIAS v FRN & ANOR (2016) LPELR-40797, MORENIKE and IDOWU & ORS v SEGUN KOYA INVESTMENTS LIMITED (2017) LPELR-43580(CA), LBD contended that the delay in delivering judgment adversely affected the perception, appreciation and evaluation of evidence by the learned trial judge and it suffered a great miscarriage of justice as it can be easily seen that the learned trial Judge virtually forgot everything that transpired during trial and lost the impressions made on him by witnesses, that the trial proceedings were supposedly recorded electronically (as indicated in Pp. 176 and 178 of the Records of Appeal) but the time lapse between conclusion of trial and delivery of judgment apparently affected the availability of those electrical recordings and no transcript of the recordings was available for compilation in the records, which shows that the learned trial judge lacked the opportunity of appreciating evidence elicited from CW1 under cross-examination to the effect that the only contract between the parties was the one for the use and return of well casings and that the lower Court was also denied the opportunity of relying on all evidence, admissions and testimonies, both oral and written before it, hence no reference was made to the trial in the judgment. LBD further contended that entering judgment in favour of Vitol when the pleadings (particularly para. 5 of the statement of claim) and evidence adduced before the Court show that the sums claimed included consideration for a lease already adjudged to have been performed and discharged, is a function of loss of memory attributable to undue delay in delivering judgment as the Court had lost all account of facts placed before it at trial and thereby occasioned a miscarriage of justice. This Court has been urged to set aside the judgment on this score.
Respondent’s submission on Issue 3
Vitol countered that the delivery of judgment outside the prescribed 3-month period did not affect the validity of the judgment or render it a nullity, insisting that LBD has not shown that it suffered any miscarriage of justice thereby, placing reliance on S. 294(5) CFRN and the case of AKOMA & ANOR v OSENWOKWU & ORS (2014) LPELR-22885(SC) 1 at 41. Vitol argued that even though the case was commenced by writ of summons and the parties exchanged pleadings and called witnesses, it is evident on the face of the judgment that the decision was based solely on construction of documentary evidence rather than evaluation of oral evidence or demeanour of witness; that the oral testimony of witnesses neither added to nor subtracted from the documents pleaded and relied upon, citing A.C.B. LTD v AJUGWO [2012] 6 NWLR (PT. 1295) 97 at 126 – 127 (CA) and EGBO v AGBARA [1997] 1 NWLR (PT. 481) 293 at 316 – 317 – per Iguh, JSC. The Court was urged to affirm the validity of the judgment and resolve this issue in favour of Vitol against LBD.
Resolution of Issue 3
Issue 3 interrogates the validity of the judgment of the lower Court, which was delivered outside the period prescribed in S. 294(1) of the Constitution of the Federal Republic of Nigeria 1999 (“CFRN”). The imperative for every Court of law established under the Constitution to render its decision “not later than ninety days of conclusion of evidence and final addresses” has agitated and has been agitated in our Courts from time to time, and there is no paucity of dicta in this aspect of our adjectival law. The Constitution provides in s. 294(1) that: “Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof”; and in S. 294(5) that: “The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions 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”.
The above constitutional provision is clear as crystal and admits of no ambiguity, but it is needful to underscore two crucial points. The first is that even though S. 294(1) talks about delivery of judgment “not later than ninety days after conclusion of evidence and final addresses”, computation of time does not begin from the date of conclusion of evidence per se, but from the date of adoption of final addresses which often takes several weeks, if not months, after conclusion of evidence as provided in the various rules of Court.
And the second point is that whereas S. 294(1) CFRN enjoins every Court established under the Constitution to deliver its decisions not later that 90 days of conclusion of evidence and final addresses, Subsection 5 attenuates the strictness of Subsection 1, as it were, by recognising “miscarriage of justice by reason thereof” as the sole basis for nullifying a judgment delivered outside 90 days. The rationale for this is obvious. The initial incarnation of this provision in S. 258(1) of the 1979 Constitution (prior to the amendment introduced by the Constitution (Suspension and Modification) Act No. 17 of 1985) worked untold hardship on litigants and the Court system in general as judgments were nullified merely on account of non-delivery “within 3 months” even though it was not demonstrated that any miscarriage of justice was occasioned thereby. Cases such as IFEZUE v MBADUGHA (1984) 5 SC 79, ODI v OSAFILE [1985] 1 NWLR (PT 1) 17, SODIPO v LEMINKAINEM OY [1985] 2 NWLR (PT 8) 547 and OJOKOLOBO v ALAMU [1987] 3 NWLR (PT 61) 377 readily come to mind.
Miscarriage of justice entails failure of justice; justice not dispensed in consonance with the law; a mockery or caricature of the very object for which Courts of justice are constituted in the first place. In GBADAMOSI v DAIRO [2007] 3 NWLR (PT 1021) 282 at 306, Niki Tobi, JSC characterised miscarriage of justice as a “decision or outcome of legal proceedings that is prejudicial or inconsistent with the substantiated rights of the party… a reasonable probability of a more favourable outcome of the case for the party alleging it … injustice done to the party alleging it”. See also AIGBOBAHI v AIFUWA [2006] 6 NWLR (PT. 976) 270 at 290 and OJO v ANIBERE (2004) 5 SC (PT. 1) 1 at 7. It is justice misapplied, mis-appreciated or misappropriated; ill conduct on the part of the Court which amounts to injustice. See PAM & ANOR v MOHAMMED (2008) LPELR-2895(SC) and ONAGORUWA v STATE [1993] 7 NWLR (PT 303) 49.
It is instructive however that it is not every infraction in the proceedings that occasions miscarriage of justice: what fits the bill are grave or serious errors in the proceedings that render the proceedings fundamentally flawed. See NWAKWOALA v F. R. N. (2018) LPELR-43891(SC).
An allegation that miscarriage of justice was occasioned by the failure or neglect of a Court of trial to deliver its judgment within 90 days is a very serious one that ought not to be lightly made, a rather weighty burden is imposed on the alleger to produce convincing, tangible and credible evidence demonstrating that he actually suffered a miscarriage of justice. In the context of S. 294(1) and (5) CFRN, binding case law donates the proposition that there must be concrete evidence of failure of justice directly traceable to the very fact of non-delivery of decision within the constitutionally stipulated period of 90 days before any such decision can be declared a nullity on that score. See AKPAN v UMOH [1999] 11 NWLR (PT. 627) 349. A miscarriage of justice contemplated by S. 294(1) must be tangible and clear on the face of the proceedings [See OYEGOKE v IRIGUNA [2001] ALL FWLR (PT 75) 448 at 462 – 463], even as the emphasis is not on the length of time per se, but on the effect the delay produced in the mind of the trial judge. See DIBIAMAKA v OSAKWE [1989] 3 NWLR (PT. 107) 101.
The records in the case at hand reveal (at Pp. 177 – 189) that trial was concluded on 26/6/13 whilst final written addresses were adopted on 8/10/13, whereupon the learned trial judge reserved judgment till 18/10/13. But judgment was not delivered on the scheduled date and nothing was heard about the case until 30/4/15 when the parties re-adopted their final addresses and the judgment (dated and signed on 29/4/15) was delivered. The point has already been made that for purposes of S. 294(1) CFRN 1999, time is computed not from the date of conclusion of evidence but from the date of adoption of final addresses. What this means is that the judgment sought to be set aside was delivered one year, six months and 22 days after the adoption of final addresses on 8/10/13, whereas the stipulated 90 days expired on 6th January, 2014. That is to say, the lower Court overshot the constitutional time limit for delivering judgments by about one year, three months and 22 days! There is therefore no gainsaying that the lower Court contravened S. 294(1) CFRN when it delivered the judgment appealed against on 30/4/15. Such inordinate delay in delivering judgment certainly does not project an appropriate judicial attitude or conduct and defeats the policy rationale and intent behind S. 294(1) CFRN, which is to curtail the invidious practice of some trial Court judges who reserve judgments for such long periods as to lose the advantage of having seen and observed the demeanour of witnesses for the purpose of assessing their credibility, leading to the setting aside of such judgments and remitting the cases for retrial. See KAKARAH v IMONIKHE (1974) 4 SC 151 and EKERI & ANOR v KIMISEDE & ORS (1976) 9 – 10 SC 61.
As stated hereinbefore, the re-adoption of final addresses on 30/4/15 heralded the eventual delivery of the judgment outside the 90-day period stipulated in S. 294(1) CFRN. This betrays a misconception that the constitutional time limit for delivering judgments can be prolonged by inviting parties to readopt final addresses. But the practice of inviting counsel to re-adopt final addresses (as was done in this case) has been characterised as a facade and “mere window-dressing designed to circumvent the stipulations of Section 294(5) of the Constitution”. See OLUSANYA v UBA PLC (2017) LPELR-42348(CA). As the Supreme Court (per Nnamani JSC) admonished in AWOYALE v OGUNBIYI (1985) LPELR-661(SC): “…[I]f a suit set down for judgment after final address is to be reopened such that the 3 months deadline will start to run, such a reopening must be … to enable the Court take, in the interest of justice, important points of law and facts relating to the case … [but] not [merely] to achieve a prolongation of the 3 months period”. The re-adoption of final addresses was therefore a futile exercise that did not succeed in curing the lower Court’s inexcusable non-compliance with the emphatic dictates of S. 294(1) CFRN.
Be that at it may, the matter does not end there. As stated hereinbefore, S. 294(5) CFRN tampers the strictness of S. 294(1) and creates a leeway that saves judgments from being nullified merely on account of non-delivery within 90 days insofar as no miscarriage of justice has been occasioned. That is the scenario here. It does not seem to me that LBD has demonstrated any tangible basis for alleging miscarriage of justice. What appears in bold relief is that the findings of fact and eventual decision of the lower Court as contained in the judgment appealed against are not founded on testimonial evidence of witnesses or their demeanour, but on the construction of documents exchanged between the parties, notably Vitol’s letter of 20/8/07 titled Re: Vitol Casing, Goland’s letter of 19/9/07 titled Re: Offer for tubulars, LBD’s email of 27/11/07 and letter of 3/12/07, as well as various invoices and demand letters.
A trial judge is a peculiar adjudicator upon whom the heaviest burden of trial lies. Perception and evaluation of evidence are his forte. He has the exclusive advantage of listening to and watching witnesses testify: his feelings and impressions are tested from time to time upon one issue or another as he takes mental note of the performance and demeanour of witnesses in the witness box, and in particular how they react to questions and the answers they give, which help him decide who and what to believe. See RAB OIL NIGERIA LIMITED & ANOR v MR SIKIRU OLUWAFEMI OBILEYE & ORS (2021) LPELR-53467(CA) 1 at 36 – 38 – per Ogakwu JCA. However, so much of the demeanour of a witness may not quite matter when there are relevant documents that serve as touchstone against which oral testimony of witnesses can be tested. See OLUJINLE v ADEAGBO [1988] 2 NWLR (PT 75) 238 at 254.
In a case such as the present where the available evidence is essentially or predominantly documentary, it can scarcely be said that the trial judge lost track of evidence adduced before him or otherwise failed to make good use of the advantage of seeing and observing the demeanour of witnesses. See CHIEF JUSTUS UDUEDO AKPOR v IGUORIGUO & ORS (1978) SC 115 at 128. It is not in all cases that the demeanour of a witness is relevant to the enquiry before the Court, and the fact that the learned trial judge did not mention the demeanour of witnesses clearly shows that the judgment did not turn on believability or non-believability of the testimony of witnesses. As stated hereinbefore, the emphasis is on the effect the delay produced in the mind of the trial judge and not merely the length of the delay per se. See DIBIAMAKA v OSAKWE supra. Quite clearly, the Appellant has not demonstrated on the face of the proceedings that it suffered any miscarriage of justice by reason of non-delivery of judgment within 90 days so as to warrant setting aside the judgment on appeal or declaring it as a nullity. Issue 3 will be and is hereby resolved against the Appellant (LBD).
Issues 1 and 2
Let us shift attention presently to Issues 1 and 2 which, as stated hereinbefore, are interrelated and will be considered together. Issue 1 condescends on “Whether the Honourable lower Court made a case for the Respondent different from the case before the Court”, whilst Issue 2 borders on “Whether there existed a valid contract of sale capable of binding the parties”.
Appellant’s submission on issues 1 and 2
Calling in aid COMMISSIONER FOR WORKS, BENUE STATE v DEVCON CONSTRUCTION CO. LTD [1988] 3 NWLR (PT 83) 407 at 420, NWOKORO v ONUMA [1990] 3 NWLR (Pt. 136) 22 at 33, AMACHREE & ANOR v THE SPDC NIGERIA LTD (2011) LPELR-4474(CA) 1 at 32 and AMASIKE v REGISTRAR-GENERAL, CORPORATE AFFAIRS COMMISSION & ANOR (2005) LPELR-5407(CA), the Appellant (LBD) contends that whereas it is a fundamental principle for determination of disputes that a judgment must be confined to the issues raised by the parties, and the Court cannot suo motu formulate a case for either or both parties, the lower Court went on a voyage of its own in determining whether there was a separate contract of sale between the parties arising from negotiations and correspondence exchanged between them, and based its judgment thereon.
LBD maintained that the case pleaded by Vitol (in paras. 4 and 5 of the statement of claim at p. 3 of the records) was that it leased well casings to LBD for a rental fee by a letter dated 20/8/07 and that upon LBD’s failure to pay the rental fee, the lease agreement was converted to an outright sale by mutual agreement, with the sales price marked up to include unpaid rental fee; that Vitol equally urged the lower Court in its final address (at p. 147 of the records) to decide whether there was evidence of a contract to convert the initial lease agreement to a contract for sale, and if so, whether LBD breached such converted contract of sale; and that after deciding the case brought by the parties and rightly holding that there was no lease agreement that was subsequently converted into an outright sale as alleged by Vitol, the lower Court surprisingly proceeded to formulate/determine a case different from that presented before it. LBD argued that having already determined the issues placed before it, the lower Court had no further reason to embark on such foray of determining whether the letter of 19/9/07 and other correspondence exchanged amounted to a new contract between the parties.
LBD relied on GILSOD ASSOCIATES LTD v A.L.G.O.N(2011) 21 WRN 37 at 58 – 59 (on the essential requirements of a valid contract), MINI LODGE LTD v NGEI [2010] 10 WRN 58 at 89 (on the ingredients of a contract of sale) and U. B. A. PLC v JARGABA [2007] 43 WRN 1 SC 22 (on the proposition that facts admitted need no further proof) and submitted that Vitol’s sole witness (CW1) admitted under cross-examination that the only contract entered into by the parties was solely for the use and return of 4,500 feet of 13 – 3/8 inches well casings and nothing more; that the clear and definite agreement of 20/8/07 did not envisage or provide for variation of its terms and no extrinsic meaning should be read into it; and that it is evident from the letters/emails exchanged (notably Exhibit P10, P13 and P14) that the parties were negotiating a new contract that would have included Goland as a party, citing Black’s Law Dictionary, 9th ed., (on what constitutes negotiation) as well as CHUKWUMA v IFALOYE [2009] 10 WRN 1 at 39 and DALEK NIG. LTD v OMPADEC [2007] 24 WRN 1 at 14-15 (on the proposition that negotiation however protracted cannot and does not on its own constitute a contract).
The further contention of LBD is that the lower Court misdirected itself in holding that LBD did not deny its indebtedness during the course of exchange of emails, insisting that LBD did not also acknowledge any such indebtedness and it is erroneous to construe the email of 5/1/09 as an admission of indebtedness when the amount supposedly admitted is ambiguous, insisting that LBD’s plea for time “to our mutual benefit” was part of the negotiation process; and that the invoices in Exhibits P10, P13, P14 as well as that of 11/6/08 had different content and conflicting sums said to be payable by LBD and it is not the duty of the Court to pick and choose which evidence out of the lot advanced by a party to prove his case, citingMINI LODGE LTD v NGEI [2010] 10 WRN 58 at 78 – per Tabai, JSC and ONUBOGU v STATE (1974) 9 SC 1, that the lower Court erred in holding that LBD accepted the offer of 19/9/07 by email of 27/11/07 when a material term of the offer was that “payment should be made within 30 days”, placing reliance on WARNER & WARNER INT’L ASSOCIATES LTD v FEDERAL HOUSING AUTHORITY [1993] 6 NWLR (PT. 297) 148 (on the proposition that time becomes of essence once time of performance is stipulated in a contract).
LBD further relied on M.O. KANU SONS & CO. LTD v FIRST BANK OF NIG. PLC (2006) 5 SC (PT III) 80 in support of the proposition that an offer may only be accepted in the manner and on the terms attached to it, and maintained that the email of 27/11/2007 which stated that “LBD would like to delay the payment” as well as proposed payment of interest at LIBOR rate was not an acceptance of Vitol’s offer of 19/9/07 but a counter offer since it introduced terms not contained in or contemplated by the offer, citing BEST (NIG) LTD VS. BLACKWOOD HODGE (NIG) LTD (2011) LPELR-776 (SC); that the lower Court erred in entering judgment for the total sum claimed by Vitol when the pleadings (in para. 5 of the statement of claim) and evidence adduced show that the said sum included unpaid rentals for a lease already adjudged to have been performed and discharged; and that there was no evidence before the lower Court showing that LBD received any 9-5/8 well casings (being the second item that was being negotiated) and/or that Vitol had performed the purported independent agreement or otherwise altered its position so as to be entitled to payment of some sort. The Court was urged to resolve issues 1 and 2 in favour of LBD and set aside the decision of the lower Court.
Respondent’s submission on issues 1 and 2
The Respondent (Vitol) submitted that LBD’s contention that the lower Court made or formulated a case different from the one presented before it is misconceived and ought to be rejected. Whilst conceding the averments in paragraphs 4 and 5 of its statement of claim (copied at pp 4 – 8 of the records) relating to the prior lease agreement that was converted into an outright sale of the well casings and that unpaid lease rental fees [allegedly] due and owing by LBD were factored into the sales price, Vitol maintained that what is crucial is that the existence of a separate contract for the sale of well casings, which is contractually severable from the prior lease agreement, was clearly pleaded and established; that it is equally significant that relief (i) was for the ”sum of US$ 703,080.00 being the agreed price for the well casings which the claimants sold to the defendant”, but not for the lease agreement and that the principal issue before the lower Court was whether there existed between the parties a valid contract for sale of the well casings, and the fact that the lower Court found that the contract of sale was not a product of conversion from the initial arrangement between the parties but a separate agreement did not amount to making a different case from the one pleaded before the Court, insisting that the authorities relied upon by LBD are wholly inapplicable.
Placing reliance on TSOKWA MOTORS NIG LTD & ANOR v UNION BANK OF NIG. LTD. (1996) LPELR-3267 (SC), OMEGA BANK (NIG) PLC v O. B. C. LTD (2005) LPELR-2636 (SC) and EL SALEM (NIG) LTD v ODEH & ANOR (2018) LPELR-44450 (CA) PP. 23-24 on the ingredients of a valid contract, Vitol maintained that there was overwhelming documentary evidence showing the existence of a valid contract between the parties for sale/purchase of well casings including, notably, Exhibit P1 page 10 (i.e. Vitol’s letter of 19/9/07 titled “RE: OFFER OF TUBULARS”), which was accepted vide LBD’s email of 27/11/07 and letter dated 3/12/07 as rightly found by the lower Court. In Vitol’s estimation, subsequent emails exchanged between the parties which concretised the contract of sale over and beyond mere negotiation. It was argued that the lower Court rightly rejected LBD’s contention that the letter of 3/12/07 was a counter offer and that a contract may emerge from series of correspondence exchanged between two (or more) persons insofar as it is apparent that the parties have come to an agreement when the correspondence are read together as in the instant case, citing NNEJI v ZAKHEM CONST. (NIG) LTD [2006] NWLR (PT 994) 297 at 311 – 312 and SHELL B. P. PETROLEUM DEVELOPMENT COMPANY v JAMMAL ENGINEERING (NIG) LTD (1974) 4 SC 33 at 72.
The further submission of Vitol is that having not appealed against the lower Court’s finding that it admitted being indebted to Vitol, LBD cannot contend on appeal that the amount of indebtedness admitted by it was ambiguous, citing EZIKE & ANOR v EGBUABA (2019) LPELR-46526 (SC) 1 at 13, AWOTE & ORS v OWODUNNI & ANOR (1986) LPELR-660 (SC) and SKYE BANK & ANOR v AKINPELU (2010) LPELR-3073 (SC) 1 at 34 – 35 on the proposition that a finding not challenged by way of appeal stands and that the transaction for use and return of 4,500 feet of 13- 3/8 well casings was not the only contract between the parties. This Court has been urged not to disturb the findings and eventual decision of the lower Court, and resolve issues one and two in favour of the Respondent (Vitol).
Resolution of issues 1 and 2
The foregoing are the arguments put forward by the parties in respect of Grounds 1 and 2. It is merely restating the obvious that pleadings occupy a preeminent position and pride of place in the schema of adversarial proceedings initiated by writ of summons, they serve the purpose of procedural fairness. See BANQUE COMMERCIALE v AKHIL HOLDINGS (1990) CLR 279 at 286. They equally delineate or delimit the canvass and forensic contours of a civil suit and thereby eliminate the springing of surprise on the adversary. Hence, pleadings are forcefully binding on the parties as well as the Court. See GEORGE & ORS v DOMINION FLOUR MILLS LTD (1963) 1 ALL NLR 71, NIPC v THE THOMPSON ORGANISATION LTD & ORS (1969) NMLR 99, AMIDA & ORS v OSHOBOJA (1984) 7 S.C. 68 at 107 –per Aniagolu JSC and OVERSEAS CONSTRUCTION LIMITED v CREEK ENTERPRISES LIMITED [1985] 3 NWLR (PT. 13) 407 at 419 – per Oputa JSC. It is imperative that pleadings (which are meant primarily to let parties know each other’s case) should be sufficient, comprehensive and accurate. JAMES v MID MOTORS LIMITED (1978) 11-12 SC 31.
Averments in pleadings [which are usually set out seriatim in numbered paragraphs] must not be read disjunctively but in conjunction with the totality of the paragraphs taken as a whole in order that the facts averred may be properly ascertained. See PAN ASIAN AFRICAN CO. LTD v NATIONAL INSURANCE CO (NIG) LTD (1982) 9 SC 1 at 48 and TITILOYE v OLUPO [1991] 7 NWLR (PT. 205) 519 at 532. It is by reading the paragraphs conjunctively that the true direction or drift of the averments can be discovered, as subsequent paragraphs of the pleadings may provide the missing link or make clear any amphiboly or vagueness of an earlier paragraph standing alone.
In order to resolve the controversy on the case put forward in the pleadings and whether the lower Court made a different case for Vitol, our recourse is to the statement of claim (copied at Pp. 3 – 6 of the records). I consider paragraphs 4, 5, 6 and 7 relevant to the enquiry and it is needful to reproduce them hereunder:
“4. The Claimant states that by a lease agreement entered into between the Claimant and Goland (of one part) and the Defendant (of the other part) the Defendant initially leased from the Claimant and Goland 9 – 5/8” Tubulars (Well Casing), and later leased from the Claimant and Goland an additional 4500 (four thousand and five hundred) feet of 13 – 3/8” well casing. The Claimant pleads and shall at the trial of this suit rely on letter agreement dated 20th August, 2007 evidencing the transaction, including all the relevant documents relating to the contract.
5. The Defendant failed, refused and/or neglected to pay to the Claimant and Goland the lease rental fees as agreed by the parties and thereafter, the parties mutually agreed to convert the loan agreement into an outright sale of the well casings to the Defendant with a condition that the offer prices for the sale would be marked up to include the unpaid loan fees due and payable to the Claimant from the Defendant. The Claimant and Goland therefore issued an offer letter dated 19th September, 2007 by which it offered to sale the well casing to the Defendant, as agreed. The said offer letter also doubles as an invoice to the Defendant and required the Defendant to pay for the well casings within 30 days of the date of the offer letter.
6. By the said letter dated 19th September, 2007, the Claimant and Goland offered to sell to the Defendant 4500 (four thousand, five hundred) quantities of 13-3/8″ well casings at a cost of $67.30 per quantity totalling $302,850.00 and 12,000 (twelve thousand) quantities of 9-5/8″ well casings at a cost of $48 per quantity totalling $576,000.00, less 20% discount which brought the total sum payable by the Defendant on the offer to $703,080.00.
7. The Claimant states that it was a term of the offer that payment for the well casing was to be made within 30 days but notwithstanding the Defendant’s acceptance of the offer vide its email of 27th November, 2007, the Defendant failed to pay the purchase price of $703,080.00 (Seven hundred and three United States Dollars and eighty Cents) either within the stipulated 30 (thirty) days or at all, and the said amount has remained outstanding. The Claimant pleads and shall rely on the Defendant’s email dated 27th November, 2007 at the trial of this suit.
8. The Claimant further avers that when the Defendant defaulted to pay to it the sum of $703,080.00 (Seven hundred and three United States Dollars and eighty Cents) as agreed, the Defendant by its letter dated 3rd December, 2007 agreed that it shall pay interest on the said amount calculated based on the London Inter Bank Offered Rate (LIBOR) as published on the day payment is due being 19th October, 2007 plus 3% calculated on a daily basis until the debt is liquidated or payment is received by the Claimant. The Claimant hereby pleads and at the trial of this suit will rely on the Defendant’s letter dated 3rd December, 2007.”
As can be gleaned from the foregoing, the case before the lower Court was that LBD leased 9 – 5/8 Tubulars (well casings) as well as an additional 4,500 feet of 13 – 3/8 well casings from both Vitol and Goland, which transaction was evidenced by a letter agreement dated 20/7/07 and that upon LBD’s failure, neglect or refusal to pay the agreed lease rental fee, the lease was converted into an outright sale by mutual agreement on the condition that the sale/purchase price would be marked up to include the unpaid lease rental fee, whereupon the well casings were offered for sale to LBD at a total sum of $703,080.00 vide a letter dated 19/9/07 (which doubled as an invoice). It was further averred that a term of the offer was that payment would be made within 30 days thereof and LBD accepted the offer by an email dated 27/11/07 but failed or neglected to pay for the well casings either within the said 30 days or at all and that by a letter dated 3/12/07, LBD agreed to pay interest on the sum of $703,080.00 calculated on a daily basis at the London Inter Bank Offer Rate (LIBOR) as published on 19/9/07 when payment fell due plus 3% calculated on a daily basis until the debt is liquidated or payment is received by Vitol.
Now, contrary to what was pleaded by Vitol, the lower Court evaluated the documentary and testimonial evidence before it and came to the conclusion that the letter agreement dated 20/7/07 was not a lease agreement for which any lease rental fees were due and owing by LBD. The lower Court held emphatically at p. 190 of the records:
“Clearly therefore, there is internal evidence in Exhibit P1 Pp. 8 & 9 i.e. the letter dated 20th day of August, 2007 of offer, acceptance and consideration. It represents a complete contract. I therefore do not believe the averment both in the statement of claim and the evidence of the sole witness for the claimant to the effect that the well casings were leased to the defendant at an agreed price which the defendant failed to pay and which price was subsequently incorporated within the sale agreement of the well casings between the parties. There was no lease agreement. All that existed in accordance with the agreement was “a use and return agreement”, the consideration of which was $1 which had been agreed to have been paid. A careful perusal of Exhibit P1 Pp. 8 & 9 BP would show clearly that it relates to only 4,500 feet of 13–3/8 casings. It contains nothing about 9–5/8 inch casings.
Again, a careful study of all the correspondence subsequent to pages 8 & 9 of Exhibit P1 cannot but reveal a glaring absence of any reference to Exhibit P1 Pp. 8 & 9. The inference from all the above is that when the offer contained in Exhibit … page 10 was made on 19 September, 2007, the contract evidenced by Exhibit P1 Pp. 8 & 9 was not in contemplation.
I am therefore of the firm view that Exhibit P1 Pp. 8 & 9 was a separate contract between the parties and it was executed separately for its own purposes. It was not subsequently converted to anything else…” (emphasis supplied).
Having firmly found that there was no lease agreement between the parties that was subsequently converted to a sale agreement, and thereby rejected the averment in the statement of claim and disbelieved the testimonial evidence of Vitol’s sole witness (CW1), the factual basis upon which the lower Court proceeded to hold that there was a separate contract of sale of well casings for which LBD was liable to Vitol is difficult think through. What appeared in bold relief in the pleadings is that Vitol tied the contract of sale to a prior lease agreement which the lower Court found to be non-existent. It therefore seems to me that in holding that the contract for sale of well casings was separate and distinct, which is contrary to the clear and unequivocal averment in the statement of claim that a lease agreement was converted into a sales agreement, the lower Court clearly made a different case from the one presented by Vitol.
It is hardly necessary to state that the facts of a case belong to parties. Not the Court. Being owner of the facts, the parties are more conversant with their property than the Court, which is merely a neutral arbiter. Thus, where a party (in this case, the claimant) gives an account of his relationship with the adverse party in the pleadings and leads evidence in accordance with the pleadings, the Court is certainly not at liberty to say that it disbelieved the claimant’s pleadings and evidence and yet proceed to enter judgment for the claimant on the basis that documents tendered in evidence established a separate contract other than as pleaded. The point to underscore is that a Court ought to remind itself at all times of the well-known principle that it is bound by the pleadings filed and exchanged in the proceedings by the parties. It is not part of the Court’s duties or functions to enter upon an enquiry in the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. To do otherwise would be to act contrary to the Court’s own character and nature. See UDENGWU v UZUEGBU [2003] 13 NWLR (PT 836) 136 at 156 and AFRICAN CONTINENTAL SEAWAYS LIMITED v NIGERIAN DREDGING ROADS AND GENERAL WORKS LTD (1977) 5 SC 235.
It is forcefully agitated on behalf of Vitol that the averments concerning the lease agreement (which the lower Court found to be non-existent) are severable from the averments relating to the subsequent contract for sale of well casings. There is no gainsaying that the rules of pleading, in an appropriate case, permit a pleader who has pleaded more than he strictly need have done to disregard the unnecessary or surplus averments and rely simply on the more limited ones. See ARAB BANK v ROSSI [1952] Q.B.D. 216 at 229 – per Lord Denning, M.R. and NDOMA-EGBA v AFRICAN CONTINENTAL BANK PLC [2005] 10 MJSC 93 at 97. However, it does not seem to me this is such a case in which the pleadings can be severed. Judging by the averments in the statement of claim (as reproduced above), the alleged sale transaction cannot be said to be separate from or independent of the lease agreement which the lower adjudged to be non-existent. It is averred that Vitol and Galand offered to sell the well casings to the Appellant on the condition that the “offer prices for the sale would be marked up to include the unpaid loan fees due and payable to the claimant from the defendant”. What this means is that the sum of $703,080.00 claimed by Vitol necessarily includes alleged outstanding lease rental fees owed by LBD which were factored into the offer price stated in the offer letter dated 19/9/07, which doubled as invoice. But if there were no unpaid lease rental fees with which the offer price was marked up (as pleaded by Vitol), then it remains to be seen how sum of $703,080.00 claimed in this suit was arrived at. It is therefore obvious that the averments in the pleadings relating to the lease agreement and unpaid lease rental fees are intricately intertwined and cannot be severed from the alleged sale of the well casings.
The judgment of the lower Court seems to me patently problematic even at a foundational level. The offer letter of 19/9/07 copied at P. 23 of the records (which doubled as an invoice) was made on the condition that “payment should be made within 30 days”. The obvious implication of this condition is that time was of the essence. Acceptance of the offer as well as payment must be made within 30 days i.e. on or before 19/10/07. But LBD’s email of 27/11/07 and letter of 3/12/07 (which the lower Court treated as valid acceptance of the offer) were clearly outside the 30 days prescribed in the offer letter dated 19/9/07. The question tugging vigorously at the back of my mind is whether the offer dated 19/9/07 (which required payment to be made within 30 days) could still have been accepted on 27/11/09 or 3/12/07? I would hate to think so. It is hornbook law that an offer can only be accepted in the manner and on the terms attached to it: M. O. KANU SONS & CO LTD v FIRST BANK OF NIGERIA PLC supra. Where the offeror stipulates a specific deadline for acceptance of an offer, the offeree cannot validly accept the offer outside the deadline. The simple test is whether the purported acceptance by LBD (offeree) on 27/11/07 or 3/12/07 would have been binding on Vitol/Goland (offerors) if they had either sold the well casings to a third party or were otherwise unwilling to sell to LBD after the 30 days stipulated in the letter of 19/9/07 when payment was required to be made? The answer is an emphatic, unhesitating negative. The offer of 19/9/07 lapsed after the expiration of 30 days and was no longer available for acceptance when LBD wrote the email and letter on 27/11/07 and 3/12/07 respectively. This being so, the inevitable conclusion to which I must come is that correspondence exchanged after the expiration of the offer dated 19/9/07 merely point to continuing negotiations between the parties which did not crystalise into any binding and enforceable agreement; and the lower Court got it amiss when it held that there was a valid contract for sale of well casings between the parties. Issues 1 and 2 are resolved in favour of the Appellant (LBD) against the Respondent (Vitol).
Conclusion
This is an appropriate juncture to berth the ship of this judgment securely at the quays. Issue 3 was resolved in favour of the Respondent, whilst issues 1 and 2 went in favour of the Appellant. Notwithstanding that non-delivery of judgment within the 90-day period stipulated in S. 294(1) CFRN per se did not occasion miscarriage of justice as I have held, the lower Court not only made a different case for the Respondent but also faltered in holding that a valid contract of sale was consummated between the parties in the peculiar facts and circumstances that came to light in these proceedings. This appeal succeeds and is accordingly allowed. The judgment of the High Court of Lagos State dated 29/4/15 (but actually delivered on 30/4/15) will be and is hereby set aside. There shall be no order as to costs.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse, in draft, the erudite leading judgment delivered by my learned brother: Peter Oyinkenimiemi Affen, JCA. I endorse in toto the judicial reasoning and conclusion in it. I too allow the appeal in the manner ordained in the leading judgment. I abide by the consequential orders decreed therein.
ONYEKACHI AJA OTISI, J.C.A.: My learned brother, Peter Oyinkenimiemi Affen, JCA, made available to me a copy of the judgment, in draft form, in which this appeal was allowed. The issues distilled for resolution of this appeal have been ably addressed by my learned brother, and I agree with the conclusions reached. I will only emphasize few points.
Pleadings in any matter is fundamental. Civil litigation is fought on pleadings. They are the pillars upon which a party’s case is founded. Oshoboja v. Amuda & Ors (1992) LPELR-2804(SC), Falke v. Billiri Local Government Council & Ors (2016) LPELR-40772(CA), Ogbere & Anor v. Ukpo (2021) LPELR-56390(CA).
A Court is bound to consider only issues raised on the pleadings before it. It is not competent for the Judge suo motu to make a case for either or both of the parties and then proceed to give judgment on the case so formulated, contrary to the case of the parties before him. Commissioner for Works Benue State & Anor v Devcon Development Consultants Ltd & Anor (1988) LPELR-884(SC), Nnaji v. Madaki & Anor (2012) LPELR-20097(CA). A Court therefore has no vires, in its adjudication, to venture outside the parameters of the pleadings to make out a case different from what parties have presented. When the trial Court falters in this regard, its decision is liable to be set aside.
For this reason, and for the more comprehensive reasons given in the leading Judgment, I also allow this appeal and abide by the orders made therein.
Appearances:
Absent For Appellant(s)
Festus Onyia, Esq. with him, C. J. Ndubuisi, Esq. For Respondent(s)
