MARINE FLEET MANAGEMENT KARACHI & ANOR v. ENYL ENGINEERING LTD (2022)

MARINE FLEET MANAGEMENT KARACHI & ANOR v. ENYL ENGINEERING LTD

(2022)LCN/17073(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Tuesday, December 06, 2022

CA/L/918/2017

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Fatima Omoro Akinbami Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

1. MARINE FLEET MANAGEMENT KARACHI 2. PLATINUM SHIPPING SERVICES LIMITED APPELANT(S)

And

ENYL ENGINEERING LIMITED RESPONDENT(S)

RATIO

Section 75 of the Evidence Act is clear that where facts or evidence remain uncontroverted they are deemed as admitted. This was the position in the case of IITA vs. AMARANI (1994) 3 NWLR (Pt. 332) AT page 303, ratio 13. Therein the Court of Appeal held that:-
“…evidence not controverted or discredited or challenged ought to be accepted as proving an existing or alleged fact”.

Also in the case of Osuji Vs. Ekeocha (2009)16 NWLR Pt. 1166 AT page 94 ratio 22(c) the Supreme Court held that a decision of a Court will be held to be perverse where inter alia:-
“c) The Court shuts its eyes to the obvious”.

And also in the case of NWANGWU VS. FBN PLC (2009) 2 NWLR Pt. 1125 AT page 208 ratios 9, the Court of Appeal defined a perverse decision of the Court as “where a Court misconceives the issues presented before it”
See also the case of Palm Beach Insurance Co Ltd vs. Bruhns (1997) 9 NWLR (Pt. 519) AT page 84, ratio 4.

The Court of Appeal therefore has a duty to examine the grounds, the conclusions or inference of the Court below upon which the said judgment was based and if convinced that they were erroneous, then the Court of Appeal will be justified in taking a different view on such a decision. See the case of RAMANU ATOLAGBE VS., KOREDE OLUYEMI SHORUN (1985)4 SC Prt 1 page 250 AT page 285.

It is also in the same vein that the Court of Appeal in the case of NBC vs. OLAREWAJU (2007) 5 NWLR Prt 2017 AT page 260 ratio 8 line 3 held :-
“An Appellate Court may only interfere when findings are perverse or wrong because of some principles of law or procedure. …” PER AKINBAMI, J.C.A.

FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Lagos State (hereinafter addressed as “the lower Court”), presided over by Honourable Justice O. A. OGALA, in Suit No LD/132/2012 delivered on 14th November, 2016. Before the lower Court, the Appellants were the defendants, whilst the Respondent was the Claimant.

The brief facts of this case are that the Respondent is a company with its office at No 5 Bombay Cresent Apapa, Lagos.

The 1st Appellant is a shipping company, common carrier for reward, with office at Karachi, Pakistan and the owners of MV Bright Star.

The 2nd Appellant is a Limited Liability Company incorporated under the laws of the Federal Republic of Nigeria, and a local corresponding agent of 1st Appellant.

The Respondent averred that the 1st Appellant had employed its services on several occasions to perform different contracts including repair work on several machineries/auxiliary machines, exhaust valves, fabrication of spares, rental of the Respondent’s 500KVA, 400 volts generating set, and two other generating sets belonging to the Respondent all in respect of the 1st Appellants’ ship, MV Bright Star 1.

The Respondent claimed that on or about 3/3/2006, the 1st Appellant requested it to supply to it, a brand new generating set 350 KVA 440 Volts 60 HZ. That it submitted its quotation for N10 Million to the 1st Appellant, which it accepted. Respondent then demanded 50% advance payment from 1st Appellant. This was declined by 1st Appellant. Respondent then demanded for a guarantee from any of the companies 1st Appellant had dealt with in Nigeria. A Mr. Pam Bot Mang the Managing Director of 2nd Appellant was introduced to the Respondent, and he furnished it with the required payment guarantee and backed it up with a first City Monument bank cheque postdated to 24/3/2003 in favour of the Respondent being the value of the contract. Thereafter Respondent armed with the letter of guarantee, postdated cheque and invoice from Generator Warehouse Ltd, the MD of the Respondent went to its bank, the then Citizen’s bank Apapa Branch and requested for finance to supply the generating set.

Respondent stated that after the meeting with the bank officials Mr. Pam Bot Mang convinced it to buy the generating set from Mikano International Generator Ltd. After the inspection of the generating set by the Master of the 1st Appellant, Respondent arranged for the delivery to the ship on 8/3 2006. Mikano delivered and installed the generating set on 11/3/2006. The ship sailed on 20/2/2006. It was the Respondent’s belief that the 1st Appellant would before the 24th day of March, 2006 pay the value of the cheque into the 2nd Appellants’ account to enable the 2nd Appellant have sufficient funds to be drawn by the Respondent. The Respondent contacted the 2nd Appellant before that date to find out who was going to pay Mikano in view of the postdated cheque. The 2nd Appellant agreed to pay Mikano and requested the Claimant to return the cheque for N10 million. The Respondent agreed but asked 2nd Appellant to send its cheque for 2.8 Million in exchange for the N10 million cheque. The 2nd Appellant failed to send the cheque for N2.8 Million. Consequently on 29/3/06, the Respondent paid the cheque into its bank account. The bank informed the Respondent that the cheque was dishonoured due to insufficient funds. Respondent found out that Mikano had been paid by the 2nd Appellant. The Respondent instructed its counsel to write the 2nd Appellant. When the Respondent got no reply from 2nd Appellant, it petitioned the Ship Chandlers Association of Nigeria, and 2nd Appellant paid N200,000.00 only. The Respondent instituted an action at the Federal High Court, which was struck out.

The Respondent at the lower Court filed an action against the Appellants, and by its amended Statement of Claim dated July 2005, claimed as follows.
a) The sum of N10, 000,000. (Ten Million Naira) for the supply of a 300 KVA generating set to the 1st Defendant pursuant to a purported contract between it and the 1st Defendant
Or alternatively
b) The sum of N2,800,000.00 (Two Million, Eight Hundred Thousand Naira) being the profit due to the Claimant upon the said contract.
c) Interest at the rate of 25% per annum from 24/3/2006 when the payment was due on the contract payment, and
d) 12% Interest until judgment sum is paid.
e) The Claimant also claims N500,000.00 (Five Hundred Thousand Naira) as damages for breach of contract and
f) N500,000.00 (Five Hundred Thousand Naira) as general damages.

After the hearing of the said suit the learned trial Judge, gave judgment in favour of the Respondent as contained at pages 105 to 122 of the Record of appeal.

Being dissatisfied with the said judgment the Appellants have now filed this appeal pursuant to their notice of appeal filed on 13/2/17, consisting of four grounds of appeal which is at page 123-126 of the record. The reliefs sought from the Court of Appeal are:
AN ORDER allowing this appeal and setting aside the said judgment of the lower Court in its entirety.

Thereafter, the parties, through their counsel, filed and exchanged their respective briefs of Argument in line with the procedure regulating the hearing of civil appeals in this Court. The appeal was heard on 3rd of November, 2022.

During its hearing, learned counsel for the Appellants G. A Daniel Esq. adopted the Appellants’ brief of Argument, filed on 5th March, 2019 but deemed properly filed and served on the 6th of March 2019 as representing his arguments for the appeal. He urged the Court to allow the appeal.

Similarly, Roseline Dikeocha Esq. adopted the Respondent’s brief of argument, filed on 29th March 2019 as her reactions to the appeal. She urged the Court to dismiss the appeal.

In the Appellants’ brief of argument, counsel distilled three issues for determination to wit:
a) Whether the trial Court was right in arriving at the conclusion that the Respondent did perform the said contract and was entitled to the reliefs sought thereof.
b) Whether learned trial Judge was right in refusing to accept that Mikano Nigeria Ltd supplied the said generating set.
c) Whether the Court was right in granting judgment to the Respondent for an estimated profit due from the purported Contract which the Respondent was unable to perform.

ln the Respondent’s brief of argument, learned counsel crafted two issues for determination to wit:
1. WHETHER THE TRIAL JUDGE WAS RIGHT IN HOLDING THAT THE RESPONDENT PERFORMED THE CONTRACT AND WAS ENTITLED TO THE RELIEF SOUGHT. (PERFORMACE OF CONTRACT ISSUE)
2. WHETHER THERE WAS ANY CASE OF DELAY, INABILITY, OR UNREADINESS TO PERFORM ON THE PART OF THE RESPONDENT? (DELAY, INABILITY, OR UNREADINESS TO PERFORM ISSUE)

A close look at the two sets of issues shows that they are identical in substance. In fact, the Respondent’s issues can be conveniently subsumed under the Appellants’ issues. For this reason of sameness, l will decide the appeal on the issues nominated by the Appellants, the undoubted owners of the appeal.

Arguments on the Issues:
Issue 1
Learned counsel for the Appellants submitted in respect of their first issue for determination in relation to the 1st Ground of Appeal that, the learned trial Judge erred in law when she held inter alia as follows:
“The Court is satisfied with the evidence before it that the Claimant did perform its obligations under the contract with the 1st Defendant. It is also evident from the facts before it that the Claimant was clearly involved in transactions leading to the installation of the said generator.”

Learned counsel referred to the testimony of Respondent’s witness during his cross-examination, and noted one fact which was certain and clear, that the Respondent could not finance the purchase and supply of the said generating set on behalf of the 1st Appellant as he did not have the money to do so. He referred this Court to the Respondent’s testimony at pages 82 to 88 of the Record of proceedings.

It was stated further on behalf of the Appellants that the Respondent was requested by his Bank, who supposedly were to finance the procurement of the said generating set on its behalf, to provide counterpart funding of 20% of the cost of the generating set, which the Respondent could not come up with. Consequent thereto the Appellants decided to source for it elsewhere.

It is further submitted that the Respondent unequivocally stated in his evidence during cross-examination that “No, the Bank did not agree to pay for the generator upon one visit”. See paragraph 7 at page 82 of the Record of Appeal.

Learned counsel stated the law that generally where a party is expected to perform a contract and fails to do; such a contract can be repudiated by the other party for non-performance. This principle which can be best described as “total failure of consideration”, has been applied by the Nigerian Courts in a plethora of cases.

The Supreme Court’s position further buttressed this position in the case of Pada Chabasaya vs. Joe Anwasi (2010) 42 Pt. 1 NSCQR AT page 435 per A.M Muktar JSC.

And in the case of Okoebor vs. Eyobo Eng. Services Ltd. (1991) 4 NWLR (Pt. 187) AT page 555 ratios 3 and 4. Ratio 4, the Court of Appeal also held:-
“If a person with whom a contract … is made is to enforce it, consideration must have been given by him to the promisor”

Furthermore, the Appellants submitted that, it is the position of the law that a person must be ready and willing to perform his obligations under a contract, and that where he is willing but not ready i.e. not able to perform at least according to the terms of the contract, then he has repudiated the contract as much as a person who out rightly refuses to perform.

The above position was maintained in the case of Universal Cargo Carriers Corporation vs. Citati (1957)2 Q.B 401 at page 437.

It is submitted by Appellants’ counsel that the above decision is on fours with the Respondent’s case, who obviously was though willing to perform the said Contract but was incapable of doing so. This Court is urged to so hold.

It is the Appellants’ submission therefore that in view of the above position of the law, the learned trial Judge therefore erred in law to have reached the conclusion that “The Court is satisfied with the evidence before it that the Claimant did perform its obligations under the contract with the 1st Defendant.”

The Appellants premised on the law, submitted further that the Respondent’s involvement or participation leading to the installation of the said generating set, which he could not pay or finance for its procurement on behalf of the 1st Appellant, cannot be seen as performance of the said purported Contract to have informed the learned trial Judge in arriving at that decision.

Appellants noted that the Respondent’s presence on board the vessel of the 1st Appellant herein was initially, basically to carry out other sundry works and minor engineering repairs on the vessel, for which he was hired to do, and not solely for the installation of the said generating set.

The Appellants stated the law, that where in a Contract a party has neither undertaken any obligation, or has not performed his own part of the agreement, such a contract will be regarded as unenforceable, for want of consideration, as liability thereunder can only arise where there is at least performance by the suing party. See the case of Pada Chabasaya vs. Joe Anwasi supra.

Appellants’ counsel reiterated the fact that the learned trial Judge erred in law when she came to the conclusion that, she was satisfied that the Respondent’s involvement in the installation of the said generating set, tantamount to performance of his obligations under the said contract to supply the said generating set, he urged this Honourable Court to so hold.

ISSUE 2
Appellants’ counsel in respect of the 2nd Ground of Appeal, submitted that the learned trial Judge was also perverse in her judgment, and in the exercise of her judicial discretion, when she held that:
“There is nothing before the Court to establish that the sum was paid to Mikano International Limited and clearly Mikano is not asking for payment of same.”

From the pleadings and testimonies of both parties before the lower Court, it was quite evident that Messrs Mikano Nigeria Ltd was alleged to have supplied the said generating set to the 1st Appellant. See paragraph 23 and paragraph 5 (viii) of the Respondent’s Statement of Claim and the Appellants’ statement of Defence found at pages 5 and 14 respectively of the Record of appeal.

The proforma invoice from Mikano Nigeria Limited was also tendered in evidence by the DW1 on behalf of the Appellants.

Appellants’ counsel submitted that it is pertinent to state that, neither was the Appellants’ averment in the said paragraph 5 (viii) of its Statement of Defence to that effect, contradicted nor was the proforma invoice tendered in evidence objected to by the Respondent at trial, yet the learned trial Judge found as above.

Section 75 of the Evidence Act is clear that where facts or evidence remain uncontroverted they are deemed as admitted. This was the position in the case of IITA vs. AMARANI (1994) 3 NWLR (Pt. 332) AT page 303, ratio 13. Therein the Court of Appeal held that:-
“…evidence not controverted or discredited or challenged ought to be accepted as proving an existing or alleged fact”.

Also in the case of Osuji Vs. Ekeocha (2009)16 NWLR Pt. 1166 AT page 94 ratio 22(c) the Supreme Court held that a decision of a Court will be held to be perverse where inter alia:-
“c) The Court shuts its eyes to the obvious”.

And also in the case of NWANGWU VS. FBN PLC (2009) 2 NWLR Pt. 1125 AT page 208 ratios 9, the Court of Appeal defined a perverse decision of the Court as “where a Court misconceives the issues presented before it”
See also the case of Palm Beach Insurance Co Ltd vs. Bruhns (1997) 9 NWLR (Pt. 519) AT page 84, ratio 4.

The Court of Appeal therefore has a duty to examine the grounds, the conclusions or inference of the Court below upon which the said judgment was based and if convinced that they were erroneous, then the Court of Appeal will be justified in taking a different view on such a decision. See the case of RAMANU ATOLAGBE VS., KOREDE OLUYEMI SHORUN (1985)4 SC Prt 1 page 250 AT page 285.

It is also in the same vein that the Court of Appeal in the case of NBC vs. OLAREWAJU (2007) 5 NWLR Prt 2017 AT page 260 ratio 8 line 3 held :-
“An Appellate Court may only interfere when findings are perverse or wrong because of some principles of law or procedure. …”

In the light of the above decisions it was argued for the Appellants that this Honourable Court has the inherent right to interfere with the decision of the lower Court which has shown substantial miscarriage of justice, and which has adversely affected the Appellants’ standing with the Central Bank of Nigeria. The Appellants, therefore, holds that the learned trial Judge’s decision was perverse. The Respondent had on the one hand contended that, he supplied the said generating set. Respondent on the other hand admitted that Mikano Nigeria Limited supplied the said generating set.

The position of the law is clear that when evidence of a witness in Court is different from the facts pleaded or is contradictory to the facts pleaded such evidence should be rejected by the Court. See Ige vs. Akoju (1994) 4 NWLR (Part340) 535 AT 546 paragraph B per Ogundare, JSC.

The Appellants submitted further that if the Respondent had actually supplied the said generating set, it is only reasonably expected that after supplying the said generating set, the Respondent would have interfaced and/or liaised with Mikano Nig. Ltd, to monitor or ensured or secured payment of its money or any commission therefrom. And that under the law of evidence, “he who asserts must prove”. The burden or onus of proof therefore was on the Respondent to show that the generator was paid for. This burden as far as the Appellants are concerned has not been discharged by the Respondent. See: Union Bank of Nigeria vs. Professor A.O Ozigi (1994) 1 NWLR (Pt. 219) page 619.

Learned counsel also submitted that Mikano Nigeria Limited, who eventually supplied the said generating set, was not made a party in the action at the lower Court.

The Appellants submitted that in view of the above argument and the various judicial authorities, the learned trial Judge erred in law to have come to the conclusion that “There is nothing before the Court to establish that the sum was paid to Mikano International Limited and clearly Mikano is not asking for payment of same.”

ISSUE 3
The Appellants contended with regards to their 3rd issue for determination that the learned trial Judge erred in law when she held that:-
“From the facts before the Court, it does appear in the circumstance of this instant case that what the Claimant would be entitled to should be a fair value of the profit he would have made from the contract.”

The Appellants submitted that the conclusion reached by the trial Judge thereby granting the Respondent a fair value of the profit he would have made amounts to granting the Respondent anticipatory profit.

That the position of the law is clear, that the Courts will not award anticipatory profit or damages in the absence of proof. This was the position of the Supreme Court in the case of Artra Industries Nigeria Limited vs NBCI (1998) 4 NWLR, Prt 546 AT page 362, ratio 4 per Onu, JSC.

The Appellants further contended that the Respondent is not entitled to any anticipatory profit on a contract that it did not perform, and the learned trial Judge erred in this regard.

The Appellants have raised 4 grounds of Appeal, and 3 issues for determination by this Honourable Court. As expounded therein the Appellant submits that:
1. The learned trial Judge therefore erred in law to have reached the conclusion that the Court is satisfied with the evidence before it that the Claimant did perform its obligations under the contract with the Appellant.
2. The learned trial Judge was wrong in concluding that the contract was performed by the Respondent, and not Mikano Nigeria Limited in the face of obvious evidence before the Court.
3. The learned trial Judge was also wrong in awarding anticipatory profits to the Respondent on a contract he did not perform.

In conclusion, the Appellants submitted that this appeal be allowed by this Honourable Court, setting aside the entire judgment delivered on the 14th day of November 2016, by Honourable Justice O. A. OGALA (Mrs.), of the Lagos High Court.

The Respondent’s counsel on issue 1, in her brief of Argument filed on the 29th of March 2019, submitted that:
i. EXHIBIT CW1A is the quotation from the Respondent dated 3rd March addressed to the master/owners of MV Bright Star, the 1st Appellant’s vessel.
ii. Exhibit CW1B is the letter of guarantee dated same 3rd March 2006, from the 2nd Appellant to the Respondent.
iii. Exhibit CWIC, is the post-dated cheque dated 24/3/2006, issued by the 2nd Appellant to the Respondent in addition to the above letter of guarantee.
iv. Exhibit CW1D, is the pro forma invoice, dated same 3rd March 2006, from Generator Warehouse Ltd. Ikoyi, to the Respondent, showing that the Respondent swung into action immediately.
v. Exhibit CW1E, is a letter from the Respondent to the Traffic Manager, NPA, Apapa Port, dated 4th March 2006 (the immediate following day) applying to bring in “A BRAND NEW GENERATOR ORDERED BY CAPT. MV. BRIGHT STAR, FOR THEIR PERSONAL USE, 350 KVA 440 VLTS 60 112”. Thus the Respondent has already concluded an arrangement with a dealer (Mikano as would soon be seen from the evidence) for the purchase of the generator.
vi. Exhibit CW1F, is another letter from the Respondent, though as author, written in conjunction with and signed by the 1st Appellant dated 11/03/2006, addressed to the Chief Security Officer, Apapa main gate, Apapa Quays, requesting for permission to bring in the generating set.
vii. Exhibit CW1G, is a letter dated 11/03/2006, though without addressee, but was written to and received by Master M.V. Bright Star, reporting completion of the assignment for the supply of the generator.

Learned counsel enjoined this Court to read Exhibits CW1A-G sequentially, and those Exhibits alone, even without oral evidence, in that they tell the story of the contract for the supply of the generator from beginning of the transaction to performance/delivery. She stressed that Exhibits CW1H to CW10 are correspondence showing other transactions with the 1st Appellant before, and after the transaction that is now the subject matter of this suit. Thus there was an ongoing relationship with the 1st Appellant dating from February 2006, before the emergence of the 2nd Appellant on the 3rd of March 2006, and this continued till after the supply of the brand new Generator subject matter herein. The oral evidence of the Claimant’s sole witness tallies with the above documentary evidence.

Learned counsel submitted that the Respondent by his written testimony on oath, established before the lower Court that as soon as he got the quotation approved, and he got the letter of guarantee and postdated cheque, he swung into action. Armed with these documents, the Respondent proceeded first to his generator dealer i.e. Generator Warehouse Ltd. at Ikoyi who gave him an invoice for the specified Generator, Exhibit CW1D, after which he proceeded to his bank.

The bank was willing to finance the transaction and to demonstrate its willingness the bank proceeded to the 2nd Appellant’s office to confirm the post-dated cheque and letter of guarantee from the 2nd Appellant who issued them.

However, after the bank’s visit, the 2nd Appellant’s Managing Director, Mr. Pam Bot Mong invited the Respondent and persuaded the Respondent to purchase the Generator from his bosom friend, Mikano, and save himself all the protocol of the bank and interest the bank will charge.

The said Pam Bot Mong assured the Respondent that Mikano will give him, the generator on his (Pam Bot Mong’s) own recognizance without asking for payment in advance and the Respondent agreed.

Mr. Pam Bot Mong made the Respondent understand that since the 2nd Appellant has risked a lot by issuing the guarantee and post-dated cheque, the Respondent could in return show him (Pam) appreciation as he deems adequate.

The Respondent then made known to Pam Bot Mong the fact that Generator Warehouse Ltd. Has given it to him for 7 million, and showed him the invoice, Exhibit CW1D and Pam Bot Mong assured him that prices of Generator are the same everywhere.

The Respondent thus also established that he did not eventually use the bank’s facility, or Generator Warehouse Ltd. because the 2nd Appellant’s Managing Director Pam Bot Mong persuaded him to buy from his bosom friend Mikano.

The Respondent then went back to fetch the captain and he, together with the Captain and Pam Bot Mong, then went to Mikano for inspection the same day, 3rd March 2006. After the inspection, the Respondent arranged with Mikano to deliver the Generator on Wednesday 8/3/2006. DW1, testifying for the Appellant, during cross-examination admitted that the bank officials came to his office, and also that himself (DW1), the Respondent witness (CW1), and the 1st Appellant’s Captain went to Mikano. This corresponds with the Claimant’s testimony on oath that, rather than go to Generator Warehouse Ltd, as earlier scheduled, the Respondent took the captain to Ikeja, Mikano International Generators.

Learned counsel referred to Exhibit CW1E, letter dated 4/3/2006, which shows that having arranged for delivery on 8th March, 2006, the Respondent went back to the Port and immediately wrote Exhibit CW1E the very next day 4th of March 2006, seeking permission from the Ports Authority to bring in the New Generator. There was no waste of time at all. The Respondent stated that the Generator was eventually delivered on the 11th of March instead of 8th of March.

Exhibit CW1F dated 11th March, 2006, shows that the Respondent cleared the way for passage of the Generating set on that 11th March, by writing to the Chief Security Officer of NPA, and getting the captain to co-sign the letter, though on the Respondent’s letterhead.

And after the generator was installed, the Claimant wrote to formally inform the Defendant of the completion of the assignment. Exhibit CW1G, on page 40 of the Record. The Master of the 1st Appellant vessel acknowledged this letter.

Learned counsel submitted that all documentary evidence in the matter points to the fact that the Respondent performed the contract from beginning to delivery. And no oral evidence as to non-performance can defeat the documentary evidence of the Respondent. See the case of Stephen Obatan vs Dr. Momodu Awudu (2005) 2 CLRN 55.

It was noted by learned counsel that, the Appellant did not discredit any of the documentary evidence of the Respondent, even during cross-examination, and that the trial Court was right to act on them. See the case of OKOEBOR VS POLICE COUNCIL (2003) 40 WRN p. 93 at 98.

Learned counsel in his further submissions, contended that the issue of anticipatory profit argued by the Appellants in paragraph 5.3 and 5.4 of the Appellant’s brief is not applicable, because here the contract was performed, and the profit has already been earned, what was remaining was for the Respondent to be paid the contract sum.

In the light of the foregoing, learned counsel submitted that the trial Judge was right in holding that, the Respondent performed the contract and was entitled to the relief sought and he urged this Court to resolve this issue in the Respondent’s favour.

DELAY, INABILITY OR UNREADINESS TO PERFORM ISSUE
The Appellants’ case is:
I. That the Respondent did not perform the contract because he could not finance it. That several weeks after issuance of Exhibits CW1B and CW1C the Respondent could not come up with 20% down payment requested by the bank.
II. That as a result of the delay 1st Appellant’s Vessel was incurring demurrage.
III. That the 2nd Appellant on 6/3/2006 then contacted Mikano who supplied the Generator.
IV. That the 2nd Appellant then informed the Respondent verbally and in writing of the cancellation of the contract vide Exhibit DW1B dated 8/3/2006.
V. That the 2nd Appellant procured the Generating set from Mikano International generators for the sum of N9,500,000 (Nine Million, Five Hundred Thousand Naira) as sum much higher than what the Respondent had quoted for. See para. 3.2, 3.3, 3.4, 3.10 and 3.11 of the Appellant’s brief, and paragraph 5(v- viii) of the testimony on oath of DW1 on page 13-14 of the Record.

Learned counsel referred to the two things admitted by the Appellants’ from the above underlined areas of the testimony on oath:
i. That the 2nd Appellant was aware of the quotation from Generator Warehouse Ikoyi. Then why would he pay more to Mikano?
ii. That the 2nd Appellant said he procured the Generating Set from Mikano, meaning, he wanted to displace and usurp the position of the Respondent who was commissioned to procure same, and who did procure same from Mikano with the persuasion of the 2nd Appellant’s Managing Director. It is obvious from testimony of DW1, that the 2nd Appellant awarded the contract to itself and procured the generator from Mikano. The contract was never re-awarded to Mikano.

The summary of the Appellants’ case as shown from the documentary evidence tendered by the Appellants is reproduced:
The 1st Appellant approved the Respondent’s quotation of Friday, 3/3/2006, the 2nd Appellant guaranteed this with the letter of guarantee dated 3/3/2006 i.e. Exhibit CW1B, and cheque post-dated to 24/3/2006 (Exhibit CW1C). Over the Weekend (two days after), the 2nd Appellant cancelled the contract and awarded it to Mikano who on Monday 6/3/2006 gave its quotation to the 2nd Appellant i.e Exhibit DW1D. And on Tuesday being 7/3/06 the 2nd Appellant who had already just been appointed Protective Agent, was reporting to the Manager overseas vide Exhibit DW1A (e-mail dated Tuesday 7th March 2006) that the Respondent could not perform and because of that he awarded the contract to Mikano. Fund had already been disbursed to the 2nd Appellant in consideration of the post-dated cheque issued to the Respondent by the 2nd Appellant.

On Wednesday, 8/3/2006 the 2nd Appellant, vide Exhibit DW1B referring to a purported cancellation of the transaction purportedly asked the Respondent to return the Cheque.

However, the quotation from Mikano (Exhibit DW1D) as can be seen from the above documentary evidence did not come “several weeks after the issuance of letter of guarantee and post-dated cheque, instead it came two days after, on Monday, 6th March 2006 being the immediate next working day after the weekend of Friday 3rd, March, 2006.

The e-mail (Exhibit DW1A) dated Tuesday 7/3/2006 reporting that the Claimant was unable to perform did not also come several weeks after, but came after four days (weekend inclusive) of the contract and three days after the claimant had written to the Port Authority for permission to bring in new generator. See Exh. CW1E of 4/3/06.

Exhibits DW1A (the email dated 7/3/2006) also show that the defendant requested for and was appointed protective agent after he got involved in this transaction as a guarantor, thus he was not so previously.

Contrary to or despite Exhibits DW1A (the email of 7/3/06) and Exhibit DW1B (the letter of 8/3/2006), purporting to have cancelled the cheque, the 1st Appellant’s captain co-signed Exhibits CW1F (letter dated 11/3/2006) with the Respondent after these exhibits, in the cause of bringing in the Generator. Both of them not knowing the grand plan of the 2nd Appellant to edge out the Respondent and retain the value of the post-dated cheque.

Now, in dealing with the question whether the Respondent was unable to get the bank to finance the transaction and thus delayed, learned counsel raised the following sub-issues arising under this issue:
1. How long did the Respondent have to transact with the bank and supply?
2. Was time stated to be of such essence?
3. Even if time was stated to be of such essence, did the Respondent delay?
4. Can the 2nd Appellant, a non-party to the contract between the 1st Appellant and the Respondent repudiate same?

Learned counsel answered these questions one after the other as follows:
HOW LONG DID THE RESPONDENT HAVE TO TRANSACT WITH THE BANK AND SUPPLY?
Learned counsel answered that Respondent had only one day, going by the Appellants’ evidence, nay, maybe half a day or less, because the 1st Appellant’s approval and the letter of guarantee were on Friday 3rd March, whereas by Monday 6th of March the contract had purportedly been cancelled and awarded to Mikano. See Exhibit DW1D. So the Respondent had only half day of Friday to get the bank to release funds since the bank did not work on Saturday and Sunday. Counsel rightly quoted the Respondent as saying that the bank did not agree to pay for the generator upon one visit. Of course not! No bank does that. You apply for the loan and if the bank is interested in granting it, you give the bank time to investigate and carry out some documentation, which in this case, the bank did by visiting the 2nd Appellant for verification of documents.

WAS TIME STATED TO BE OF SUCH ESSENCE?
Learned counsel submitted that there was nowhere in the contract between the 1st Appellant and the Respondent, where time was stated to be of essence at all. Nor did the Appellants plead in their defence that time was of the essence. DW1, stated that the generator was to be supplied ASAP i.e. as soon as possible but this was not supported by evidence oral or documentary. However, even if it were, then it means there was no urgency attached. Learned counsel cited the case of Warner & Warner International Associates (Nig.) Ltd v F.H.A 1993 (LPELR)-3471 (SC) It was held that:
Time will be of the essence if the contract expressly makes it so or if there are clauses showing that the parties intended it to be of essence, or if after a delay by one of the parties, the other gives a notice, making time the essence.

It was pointed out by learned counsel that, the Appellants did not show the Court the urgency that caused it to cancel the contract, and award same to Mikano after two days of award of same to the Respondent. The Appellants could not establish any delay on the part of the Respondent in performing the contract, or that they warned the Respondent and gave him notice of a deadline to perform. See the case of Biyo vs Aku (1996) 1 NWLR (pt. 422) 1 at 40.

It was submitted by learned counsel that, time was not stated to be of the essence at the commencement of this contract, nor at any stage at all, and the Respondent was not given any notice requiring performance.

EVEN IF TIME WAS STATED TO BE OF ESSENCE, DID THE RESPONDENT DELAY OR SHOW UN-READINESS TO PERFORM?
Learned counsel further submitted that the Appellants’ plea of delay, un-readiness or inability to perform fails, as it is not supported by evidence. Evidence before the Court reveals that the Respondent swung into action immediately, sourced for generator and got the exact specification at Generator Warehouse, Ltd Ikoyi, got the bank to agree to finance same, and the bank haven so agreed, visited the second Appellants’ office to confirm and verify documents, and eventually the Respondent took the Captain to Mikano to select the desired specification of the Generator, all on 3rd March, 2006, the same date the contract was awarded. Then the immediate following day 4/3/2006, the Respondent wrote Exh CW1E to the Port Authority, requesting for permission to bring in a new Generator. This letter already shows the Respondent’s state of mind – performance with dispatch – optimism- readiness, ability to perform – which negates the existence of any problem having to do with bank refusal to finance. The Respondent testified that he never encountered such problem with his bank. Otherwise, he would not have written the letter of 4/3/2006. Exhibit CW1E, cleared the way for the Generator to come in.

Learned counsel noted that the Appellants have submitted in paragraph 4, of their brief of Argument, that it was Mikano that supplied the Generating set, the Appellants could not prove that several weeks elapsed before purportedly awarding the contract to Mikano, as the quotation from Mikano was made two days after the guarantee and post-dated cheque were given.

It is submitted by learned counsel that, the contract was not awarded to Mikano, but that the Generator was purchased from Mikano by the Respondent as the middleman, just as it could have been purchased from Generator Warehouse lkoyi Ltd. Therefore purchasing the Generator from Mikano cannot make Mikano the supplier. In the same way, when a seller delivers the goods purchased to a specified destination, that delivery does not make the seller of the goods the supplier. In this transaction, Mikano International Generators played the same role that Generator Warehouse Limited would have played, both being dealers and the Respondent being a middleman. Therefore, Mikano only replaced Generator Warehouse Ltd and did not, and could not have replaced the Respondent who was contracted to source for, procure and purchase the Generator. The Respondent was only persuaded to buy from Mikano instead of buying from Generator Warehouse Ltd. To say that Mikano replaced the Respondent will be the same as saying that Generator Warehouse would have taken the place of the Respondent if the Generator had been bought from the Generator Warehouse.

Learned counsel categorically submitted that, the person who trickishly tried to take the place of the Respondent, is the 2nd Appellant, whose sole witness, DW1 testified in para 5(viii) of the statement on oath of the Defendant’s witness that:
“…In fact the 2nd Defendant procured the Generating set from Mikano International generators for the sum of N9,500,000.”

Learned counsel now asked the question:
Who contracted the 2nd Defendant (the 2nd Appellant) to procure the Generator? He answered that Obviously, the contract was not awarded to Mikano after all? Instead the 2nd Appellant became the middle man, which is the position of the Respondent.

It is the 2nd Appellant’s MD DW1, that tried to edge out and double cross the Respondent even unknown to the Captain of the 1st Appellant’s vessel because the 2nd Appellant was communicating with the Manager overseas.

The learned trial Judge captured this fact when she found that:
“It is also clear to the Court that the 2nd Defendant had began plans to interfere with the contract between the Claimant and the 1st Defendant at least as far back as the 6th of March, 2006 and clearly, that Exhibits DW(C) and DW(E) both dated 30th of March, 2006 are afterthoughts to deny the Claimant his due profit.”

The Appellants’ allegation that the 1st Appellant’s vessel incurred demurrage due to the Respondent’s delayed performance, was also demolished by the Respondent’s documentary evidence by which the Appellant established that, after the Generator was delivered on 11/3/2006, the 1st Appellant was still around up to and beyond 15/3/2006. See Exhibit CW10 on page 50 of the Record. And there were also other transactions going on as at 11/3/2006. See exhibits CW1M and CW1N at pages 48-49 of the Records. Thus the 1st Appellant’s vessel was not under pressure to depart due to any demurrage. CW1, testified that the vessel sailed on or about the 20th day of March 2006 and this was not challenged by the Appellants.

Learned counsel submitted that, the trial Judge was right to disbelieve the Appellants’ testimony that, when after several weeks the claimant could not supply, and the vessel was accumulating demurrage, they had to award the contract to Mikano international generators.

And on the other hand, the trial Judge was right in believing the Respondent’s testimony as to why he did not go back to the bank to finance the transaction and why he purchased the Generator from Mikano as already stated above.

It is submitted by learned counsel that civil actions are decided on balance of probability of evidence, and that the evidence of the Respondent is more probable than that of the Appellants. See the case of Mogaji vs Odofin (1978) 3-4 SC pg. 65. Learned counsel contended that, the evidence that it was because the Respondent delayed several weeks after and in desperation the 2nd Appellant then contracted and commissioned Mikano to perform same has already been demolished by the documentary evidence of both parties as well as the oral evidence of the Respondent’s sole witness. The bank was willing to finance the transaction and visited the 1st Appellant to verify documents. The Appellants’ DW1 confirmed this under cross-examination, and also confirmed that he went to Mikano with the claimant and Captain of the 1st Appellant’s vessel.

Therefore the Appellants’ evidence is not credible, not probable, and therefore lacks any weight at all. And on the other hand, the Respondent’s evidence as to why the bank did not finance the transaction, and how Mikano came into the picture being that the MD of the 2nd Respondent persuaded him to buy from Mikano, and save and avoid bank protocols and interest is more credible, more probable or likely, and has more weight and is more preferable to that of the Appellant and the trial Court was right to accept same.

Furthermore, learned counsel submitted that if the Respondent’s evidence as to why the generator was purchased from Mikano is accepted as more probable than that of the Appellant, then it does not matter to the Respondent, if the second Appellant paid the entire 10 Million to Mikano because the second Appellant double-crossed the Respondent, which is why Mikano is not asking the Respondent for payment. Whereas the 2nd Appellant was supposed to pay the N10 Million to the Respondent for onward disbursement by the Respondent to Mikano, the agreed purchase sum of N7 million.

Learned counsel reiterated the fact that the trial Judge was right in her finding that “clearly Mikano is not asking for same.”

It was submitted by learned counsel that the 2nd Appellant procured the quotation from Mikano as an afterthought and that the quotation from Mikano was master minded by the 2nd Appellant, to enable him carry out his plan of hijacking the Respondent’s profit.

CAN, THE 2ND APPELLANT, A NON-PARTY TO THE CONTRACT, REPUDIATE THE CONTRACT BETWEEN THE 1ST APPELLANT AND THE RESPONDENT?
The learned counsel on the above question answered that from the evidence, the 2nd Appellant is not a party to the contract of supply of the generating set which was concluded before the 2nd Appellant was approached. It is trite law that as a general rule, a contract affects only the parties to it and cannot be enforced by or against a person who is not a party to it even if the contract is made for his benefit and purports to give him right to sue or to make him liable upon it. See the case of A.G FEDERATION VS A.I.C LTD (2000) 10 NWLR (pt. 675) 293 at 311. Also see NANGIBO VS OKAFOR (2003) 52 WRN 1.

There being no privity of contract therefore, the 2nd Appellant has no right to determine whether there was delay or not and also has no right to terminate a contract which it did not award. Meanwhile, the Master of the 1st Appellant’s vessel who approved the contract was there, and still transacted with the Respondent on the supply from beginning to delivery as made crystal clear from the documentary evidence which were not refuted by the Appellants. See Exhibits CW1F and CW1G at pages 29 and 40 of the Record.

In conclusion, learned counsel submitted therefore that, exhibit DW1B was an afterthought, either formulated for the purpose of this action or formulated by the 2nd Appellant to cheat and double-cross the Respondent and to justify its failure to pay the Respondent.

RESOLUTION
Issue 1
a) Whether the trial Court was right in arriving at the conclusion that the Respondent did perform the said contract and was entitled to the reliefs sought thereof.
Dealing with issue No. 1, a contract is an agreement giving rise to obligations which are enforced or recognized by law. The factor which distinguished contractual obligations from other legal obligations is that they are based on the agreement of the contracting parties.

For a valid contract to emerge, there are five elements that must be present and recognizable. These are offer, acceptance, consideration, intention to create legal relationship, capacity to create legal relationship and capacity to contract. Thus, before any contract or agreement can be said to come into existence in law, there must be an unmistaken and precise offer, followed by an unconditional acceptance of the terms mutually agreed upon by the parties thereto. That is to say, the parties to the agreement must be in consensus ad idem as regards the terms and conditions freely and voluntarily agreed upon by them. See BILANTE INTERNATIONAL LTD VS NIGERIA DEPOSIT INSURANCE CORPORATION (2011) 6-7 SC (PT IV) 113, OMEGA BANK PLC V. OBC LTD (2005) 8 NWLR (PT 928) 547, AMANA SUITS HOTEL LTD V. PDP (2007) 6 NWLR (PT. 1031) 453.
Therefore, where an offer is made but is not accepted, there can be no agreement or contract arising therefrom. An offer is an expression of readiness to contract on the terms specified by the offeror (i.e. the person making the offer) which when it is accepted by the offeree (i.e. the person to whom the offer is made) will give rise to a valid and binding contract. In other words, it is by acceptance that the offer is converted to a contract. See SPARKLING BREWERIES LTD & ORS V. UNION BANK OF NIGERIA LTD (2001) 10 SCM 163.
A mere willingness to enter into a negotiation with a view to entering into a contract cannot be an offer but at best an invitation to treat. See OMEGA BANK PLC V. OBC LTD (SUPRA).
In the case under consideration, l have carefully perused the record of appeal, wherein l found that the Respondent has not established the above elements of a valid contract.
There is no record of the Respondent tendering any document showing any offer made to him by the 1st Appellant, and his acceptance in respect thereto. The Respondent was challenged on this fact in cross-examination by Appellants’ Counsel, he admitted that there was no such offer document issued to him from the 1st Appellant to supply the generating set.
Although, the Court can infer and construe the existence of a contract from the conduct of the parties before it, however in this instant case there was no clear-cut agreement between the parties as to the creation of a contract and its exact terms. See the case of David Ejiniyi v Amusa Adio (1993) 7 NWLR Part 305 p 320 per Salami, JCA “The totality of the evidence by the parties … “did not disclose a negotiation between the parties in respect of the said transaction. …in the absence of an offer, there can be no acceptance, which is the expression of consent to the terms of the offer.”
In this instant case undoubtedly, there was no offer made to the Respondent by the 1st Appellant to supply the said generating set.

Premised on my elucidation of a valid contract above, the Appellants’ counsel rightly pointed out that the learned trial Judge erred in law when she held inter alia as follows:
“The Court is satisfied with the evidence before it that the claimant did perform its obligations under the contract with the 1st Defendant. It is also evident from the facts before it that the claimant was clearly involved in transactions leading to the installation of the said generator.”

Learned counsel for the Appellants to further drive home his contention, pointed out that, Respondent’s involvement or participation leading to the installation of the said generating set, which he could not pay or finance for its procurement on behalf of the 1st Appellant, cannot be seen as performance of the said purported contract, to have informed the learned trial Judge in arriving at that decision.

It is evident from the record of appeal, and well-articulated by Appellants’ counsel that the Respondent on board the vessel of the 1st Appellant was initially to carry out other sundry works and minor engineering repairs on the vessel for which he was hired to do, and not solely for the installation of the said generating set.

I am in agreement with Appellants’ counsel that undoubtedly, the learned trial Judge erred in law, when she concluded that she was satisfied that the Respondent’s involvement in the installation of the said generating set is tantamount to performance of his obligations under the said contract to supply the said generating set, l so hold.
Issue 1 is resolved in favour of the Appellants.

Issue 2
“Whether learned trial Judge was right in refusing to accept that Mikano Nigeria Ltd supplied the said generating set.”
From the pleadings and testimonies of both parties before the trial Court, it was quite evident that Messrs Mikano Nigeria was alleged to have supplied the said generating set to the 1st Appellant.

The findings of the learned trial Judge on page 121 of the record of appeal wherein she stated that:
“There is nothing before the Court to establish that, the sum was paid to Mikano International Limited, and clearly Mikano is not asking for payment of same,” was correctly impugned as perverse by Appellants’ counsel. The said finding is perverse, and is one that must not stand. It must be reversed.

Furthermore, it was rightly pointed out by Appellants’ counsel in his brief, that if the Respondent had actually supplied the said generating set, it is only reasonably expected that after supplying the said generating set, the Respondent would have interfaced or liaised with Mikano Nigeria Ltd to monitor or ensured, or secured payment of its money or any commission therefrom.

Under the law of evidence, “he who asserts must prove”. I carefully read the pleadings and testimonies of the Respondent, the Appellants’ counsel in my view rightly contended that, the burden or onus of proof thereof was on the Respondent to show that he paid for, and/or procured the said generating set in the course of the said purported contract. There is evidence in the record of appeal that, Appellants paid for, or procured the said generating set, in the course of the said purported contract. This burden as far as the Appellants are concerned, has not been discharged by the Respondent. See Union Bank of Nigeria v Professor A. O Ozigi (1994) 1NWLR (Part 219) page 619.
The burden of proving a particular fact is on the party who asserts it. See Okubule v. Oyagbola, (1990) 4 N.W.L.R. (Pt.147) 723 and Ike v. Ugboaja (1993) 6 N.W.L.R. (Pt.301) 539. That is the position in civil cases but the onus does not remain static. It shifts from side to side where necessary and the onus of adducing further evidence is on the person who will fail if such evidence was not adduced. See Nigerian Maritime Services Ltd., v. Afolabi (1978) 2 S.C. 79 at p. 84 and Highgrade Maritime Services Limited. v. First Bank of Nigeria Ltd. (1991) 1 NWLR (Pt.167) 290. It was correctly noted by Appellants’ counsel that, Mikano Nig Ltd, who eventually supplied the said generating set was not made a party in the action at the lower Court.

In concluding this Issue 2, l reiterate that, argument of Appellants’ counsel that in view of the various judicial authorities, that the learned trial Judge erred in law to have come to the conclusion that “There is nothing before the Court to establish that, the sum was paid to Mikano International Ltd, and clearly Mikano is not asking for payment of same, is one that must not be disturbed. Consequently issue 2, is resolved in favour of the Appellants.

Issue 3
“Whether the Court was right in granting judgment to the Respondent for an estimated profit due from the purported contract, which the Respondent was unable to perform.”
The holding of the learned trial Judge on page 121, of the record of appeal which states “From the facts before the Honourable Court, it does appear in the circumstance of this instant case, that what the Claimant would be entitled to, should be a fair value of the profit he would have made from the contract,” is contrary to the position of the law.

The law is very clear, that Courts will not award anticipatory profit or damages in the absence of proof. See the case of Artra Industrial Nigeria Limited v NBCI (1998) 4 NWLR Part 546 page 362 ratio 4. Appellants’ counsel articulated the correct position of the law further, that the Respondent is not entitled to anticipatory profit on a contract he did not perform, therefore the learned trial Judge erred in his holding above.

From all l have elucidated above, this Issue is resolved in favour of the Appellants.

This appeal is meritorious, consequently, l allow the appeal, and hereby set aside the judgment delivered on the 14th day of November, 2016 in Suit No. LD/132/2012 by Honourable Justice O.A Ogala.

JIMI OLUKAYODE BADA, J.C.A.: I had the advantage of reading in draft, a copy of the leading judgment of my Lord FATIMA OMORO AKINBAMI, JCA, just delivered.

I have also read the record of appeal as well as the briefs filed on behalf of the parties, I agree with the reasons given and the conclusion by my Lord that there is merit in this appeal.

In view of the foregoing, I also allow the appeal. I abide by the consequential order made in the said leading judgment.

ABUBAKAR SADIQ UMAR, J.C.A.: I read in draft, the judgment of my learned brother FATIMA OMORO AKINBAMI, JCA, just delivered, which I agree that there is merit in this appeal and it deserves to be allowed.

His lordship has addressed in the lead judgment all the salient issues submitted for the determination of the appeal and I have no new things to add.

I rather adopt both his reasoning and conclusion as mine.
Appeal is hereby allowed.
I abide by the consequential order therein.