MATJON (NIG) LTD & ANOR v. NASARAWA STATE GOVT & ORS (2021)

MATJON (NIG) LTD & ANOR v. NASARAWA STATE GOVT & ORS

(2021)LCN/15123(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Wednesday, May 05, 2021

CA/MK/184/2018

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

1. MATJON NIGERIA LIMITED 2. SURVEYOR JOHN EMENIKE (MANAGING DIRECTOR, MATJON NIGERIA LIMITED) APPELANT(S)

And

1. NASARAWA STATE GOVERNMENT 2. MINISTRY OF LAND AND URBAN DEVELOPMENT NASARAWA STATE 3. THE ATTORNEY GENERAL OF NASARAWA STATE RESPONDENT(S)

RATIO

EFFECT OF THE TERMS OF A CONTRACT ON THE PARTIES THERETO

It is trite that parties to a contract are bound by the terms of the contract, see OFORISHE V. NIGN GAS CO. LTD (2017) LPELR-42766 (SC) where the apex Court held thus: “Parties are bound by the terms of the contract, and these terms should be read as they are without any embellishments. So once parties enter into a contract, on no account should terms extraneous to the contract or on which there was no agreement be read into the contract. See A.G Rivers State v. A.G Akwa-Ibom State (2011) 3 SC p. 1 Uwah & Anor v. Akpabio & Anor (2014)2-3 SC p. 1; Koiki v. Magnusson (1999) 8 NWLR (Pt. 615) p. 492; Union Bank Nig Ltd v. B.U. Umeh & Sons Ltd (1996) 1 NWLR (Pt. 426) p. 565.” Per RHODES-VIVOUR, J.S.C. And the case of A.B.C (TRANSPORT CO.) LTD. V. OMOTOYE (2019) LPELR-47829 (SC) where Per ABBA AJI, J.S.C has this to say: “Parties are bound by the terms of their contract and if any dispute should arise with respect to the contract, the terms in any documents which constitute the contract, are invariably the guide to its interpretation. See Per MOHAMMED, J.S.C in ONYKWELU V. ELF PETROLEUM (NIG) LTD. (2009) LPELR-2733 (SC).” Also the following cases A.G. FERRERO & CO. LTD. V. HENKEL CHIMICALS (NIG.) LTD. (2011) LPLER-12(SC); BEST (NIG.) LTD. V. BLACKWOOD HODGE NIG. LTD & ANOR (2011) LPELR-776(SC) PER YARGATA BYENCHIT NIMPAR, J.C.A.

WHETHER FAILURE TO RESPOND TO A BUSINESS LETTER AMOUNT ADMISSION OF THE FACTS STATED IN THE LETTER

… the Appellants having sent a demand letter which was not denied, the law presumes that as acceptance of liability, see ONUIGBO V AZUBUIKE (2013) LPELR-22796 (CA) wherein the Court considered whether failure to respond to a business letter which by the nature of its contents requires a response amounts to an admission, it held thus: “What are the general principles of law governing correspondence in business transactions. In Trade Bank Plc. V. Chami (2003) 13 NWLR Pt. 336 P. 158 @ 219 – 220 this Court held that business letters, unlike social correspondence, deserve to be replied. Consequently, the Court would, unless the circumstance in which a business letter is written shows otherwise, infer that the failure to reply a business letter is an admission of the facts stated in the letter. This is so because what is not denied is deemed admitted. In Vaswani v. Johnson (2000) 11 NWLR Pt. 679 P. 582, this Court also stated that in business and mercantile transactions where in ordinary course of business a party states in a letter to another that he has agreed to do certain things, the party who receives that letter must answer if he means or intends to dispute the facts that he did not agree, where there is silence in the circumstances in which a reply is obviously expected an irrefutable presumption of admission by conduct or representation is raised … However, there is an exception to the general principle of law expressed in the foregoing cases. For instance in Trade Bank Plc. V. Chami supra, page 279, the Court held that it is not in every case that failure to give a reply to letters written on business matters and received by one of the parties to the proceeding would be taken as strong evidence that the party receiving the letter admitted what was asserted therein. The Court is enjoined not to take the rule as an absolute one but rather to consider each case on its own merit, and examine the circumstances under which the letter was written. It is after doing so that the Court is to decide whether it is a case where an inference of admission could safely be drawn or not. In Emaphil v. Odili (1987) 4 NWLR Pt.67 P. 915 the Court also stated that a businessman is not obliged to reply to every letter, and it is not an absolute rule that in all cases of failure to reply, an inference of admission must be drawn. The only fair way of stating the rule of law in that regard, is that every case must be looked at in the circumstances under which the letter was written, and determine whether in the circumstances the refusal or failure to reply per se amounts to an admission. The Court is entitled to look at the facts and circumstances of the case in which an inference of an admission ought reasonably be drawn.” Per BDLIYA, J.C.A. PER YARGATA BYENCHIT NIMPAR, J.C.A.

WHETHER A BREACH OF A TERM OF CONTRACT CAN GIVE THE INNOCENT PARTY A GOOD REASON TO REPUDIATE THE CONTRACT TO REPUDIATE THE CONTRACT

It is trite that a breach of a term of contract can give the other party the right to repudiate the contract and in doing so, do it according to the terms of the contract, see THE UNITED CALABAR CO. V. MESSR. ELDER DEMPSTER LINES LTD (1972) LPELR-3400(SC) where the apex Court held thus: “A breach of an executory contract may be a good reason for the innocent party to repudiate the contract, but if the parties agree by their contract to a method of determination in the circumstances, that method must be followed if it is intended by either side to avail himself of the opportunity of repudiation.” Per COKER, J.S.C. PER YARGATA BYENCHIT NIMPAR, J.C.A.

DUTY OF THE COURT WHERE A CONTRACT AGREEMENT IS SILENT AS TO THE TIME OF PERFORMANCE OF A CONTRACTUAL OBLIGATION

The law is settled that where time is not set or agreement is silent as to time of its performance or the for the taking of a step under a contract, the law implies that it should be done within a reasonable time, see EDEM V CANON BALLS LTD & ANOR (2005) LPELR-1007(SC) which held as follows: ”The law however, is that if the contract agreement is silent as to the time of performance of a contractual obligation, the Court will read into the contract a term that the performance is to be given within a reasonable time. See: Hick v. Raymond (1893) A.C. 22; Hulthen v. Stewart & Co. (1903) A.C. 389 and Monkland v. Jack Barclay Ltd. (1951) 2 K.B. 252.” Per OGUNTADE, J.S.C. See also the following: MOHAMMED V MOHAMMED & ANOR (2011) LPELR-3729(CA) where the Court held thus: “In contractual relations where time is of essence in respect of performance of a contract, the law will imply performance within a reasonable time, although the contract between parties is silent in respect of time for performance. See Nig. Bank for Commerce & Industry v. Integrated Gas (Nig.) Ltd. & Anor (2005) 1 SCNJ 104. Thus, where no term concerning time for performance was agreed upon by parties, it is the duty of the Court to read into the contract a term that performance was agreed to be given within a reasonable time. See Paul E. Edem v. Canon Balls & Anor (2005) 6 SCNJ 189.” Per OGUNWUMIJ, J.C.A. See also the following cases: NIGER INSURANCE CO. LTD. V ABED BROTHERS LTD. (1976) SC; MALIK V KADUNA FURNITURE & CARPETS CO. LTD. (2016) LPELR-41308(CA); NKAZI V STANBIC IBTC BANK (2018) LPELR-49153(CA) and ZENITH BANK PLC V EMIRATES CREDITCORE & INVESTMENT LTD (2016) LPELR-41586(CA). Since the contract did not designate time for the commissioning of the job when completed, the Court has a duty to imply and read into the contract the term that the completed job should be commissioned within a reasonable time. A reasonable time will depend on the facts and circumstances of each case. PER YARGATA BYENCHIT NIMPAR, J.C.A.

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This Appeal is against the decision of the Nasarawa State High Court sitting in Lafia delivered by HON. JUSTICE J. G. ABUNDAGA (as he then was) on the 7th December, 2016 wherein the lower Court entered judgment in favour of the Appellants, granted part of the claim and dismissed the rest. The Appellants dissatisfied with the judgment, filed a Notice of Appeal dated 6th March, 2017 setting out 3 grounds of Appeal.

Facts leading to this appeal are straight forward and can be summarized in the following way. I shall do so shortly. The Plaintiffs commenced the action under undefended list and the case at the trial Court was for a liquidated monetary claim of the sum of N2,562,000.00 (Two million five hundred and sixty two thousand naira) being the outstanding balance due to the Plaintiff for the contract the Defendants awarded to them for the acquisition of Satellite Imageries of Nasarawa Urban Areas. The Plaintiff contended that it satisfactorily executed/completed the contract and submitted same, the result of the work to the Defendants through the 2nd Defendant’s office on the

28th day of October, 2011. After submission of the work to the Defendants, the Plaintiffs waited for three years to be paid the balance outstanding and when it was not coming forth and no reason was given by the Defendants for non-payment, the Plaintiff instituted the suit instant to claim the balance of N2,562,000.00.

On the other hand, the Defendants filed their notice of intention to defend the suit as well as witness statement on oath. The Defendants contended in their affidavit in support of their notice of intention to defend the suit that there is no valid agreement between the Plaintiffs and Defendants for the Court to act on.

The Exhibits tendered at the trial Court are as follows:
1. EXHIBIT A: Letter of award
2. EXHIBIT B: Letter of Acceptance
3. EXHIBIT C: Contract agreement
4. EXHIBIT D: Acquired Satellite imageries dated 26/10/11
5. EXHIBIT E: Request for final payment dated 28/10/11
6. EXHIBIT G: CTC of A Nasarawa State Tender’s Board Letter Dated 8/4/14
7. EXHIBIT H: CTC of the Acquisition of Satellite Imageries of Nasarawa State Government and Matjon (Nig.) Ltd. No. 2 Presidential Road Enugu.

The Appellant tendered Exhibits A-E while the Respondents tendered Exhibits G-H.

Issues were joined in the pleadings and the matter went to full trial with parties calling witnesses in proof of their respective pleading. After full consideration, the Court below granted part of the claim of the Appellants and dismiss the rest, thus the appeal.

The Appellants’ brief settled by G. H. MOHAMMED, ESQ., dated 18th day of June, 2019, filed on the same day, but deemed on the 8th day of February, 2021 and distilled 2 issues for determination as follows:
1. Was the trial Court right when it held that the Plaintiffs/Appellants are not entitled to the 30% and 10% of the contract sum on submission of all deliverables and after commissioning of the project respectively. (Distilled from Ground one and two of the Notice of Appeal)
2. Whether going by the totality of both documentary and oral evidence adduced by parties at trial, the judgment of the lower Court is not against the weight of evidence. (Distilled from Ground 3 of the Notice of Appeal).

The Respondents’ Brief settled by SOLOMON W. AYENAJEH, ESQ., dated 18th

March, 2020, filed on the 19th March, 2020, but deemed on the 8th day of February, 2021. It adopted the issues formulated by the Appellants for determination.

Thereafter, the Appellants filed a Reply brief dated 25th January, 2021 on the same day but it was deemed on the 8th February, 2021

APPELLANTS’ SUBMISSION
ISSUE ONE
The Appellants submit that the Respondents award the 1st Appellant a contract for the acquisition of Satellite Images of Nasarawa State Urban Area in the sum of Three million, six hundred and sixty thousand naira (N3,660,000.00) only on the 15th October, 2008 as contained in Exhibit A and Exhibit H. The Appellants reproduced the provision of Clause 9 and 10 of Exhibit H which forms the crux of the appeal and the trial Judge in his wisdom held that the 1st Appellant is only entitled to 30% upon of the submission of geo-reference imagery that is as per paragraph (9b) but is not entitled to payment for paragraph (9c) and (9d) because the project was not commissioned. The trial Judge stated so in his reasoning at page of 196-197 of the records which the Appellants submits that it was wrong in law because the trial

Judge did not consider Clause 10 in Exhibit H before coming to a conclusion. According to the Appellants, the Respondents failed to communicate the reason for delay in payment as provided in Clause 10 in Exhibit H and the trial Court failed to avert its mind to that. Also, the Appellants states that the Respondents never contended that the Appellants failed to supply “All deliverables”, that was only in the mouth of the trial Judge which was not in his place to descend into the arena. The trial Court’s conclusion is that the Appellants fulfilled clause 9b to entitle him to 30% which it awarded but failed to fulfill clause 9c. As provided by Exhibit D, the Appellants submitted 2 items to the Respondents (1) Digital copy of the Satellite imageries on a CD ROM; (2) Three hard copies printout of the Satellite imageries; he asked on which evidence did the trial Court rely on to find that item (i) in Exhibit D amounted to Geo-Reference Imageries for which he awarded the 30% for clause 9b? The answer is none. The Appellants reproduced the holding of the trial Court at page 195 of records and argued that the contract requires 2 items to be delivered and

by Exhibit D such items were delivered but because they failed to explain to the trial Judge what amount to deliverables he denied the Appellants the 30% of the contract sum and that is wrong in law. The Appellants contended that if the Respondents did not understand what deliverables were, they would have stated same in their pleadings but they kept mute from 2011-2014. The Appellants further argued that the judgment of the trial Court would obviously occasion miscarriage of justice if the Respondents after receiving two items would be paying for only one item. They submitted that it is trite that no Court should suo motu decide an issue without giving parties opportunities to be heard on it, no matter how the Court thinks about it. The Appellants relied on OBUMSELI V. UWAKWE (2009) 28 WRN 147 and also reproduced paragraph 13 of the witness statement on oath of the 2nd Appellant contained at pages 85 of records. The Appellants further argued that even from the cross examination of PW1 at page 164 to 165 of records, he did not answer any question to suggest that he left part of the contract undone, from which evidence did the trial Court came to a conclusion

that the contract was partly performed when there was none. Citing SAGAY V. SAJERE (2000) 2 SCNQR 345, the Appellants restated the principle of law that where a party fails to cross examine a witness on a particular matter, the implication is that he accepts the truth of that matter as led in evidence as held in OLADAMILOLA V. THE STATE (2010) 15 WRN 1. The Appellants states that for the trial Court to dismiss the claim or part of the claim of the Appellants, there ought to be evidence on that part of the Respondents to support such dismissal and not for the trial Court to make a case for the Respondents when they have not established any and rely on same to dismiss the case of the Appellants. The Appellants urge this Court to set aside the decision of the lower Court which denied the Appellants 30% on submission of all deliverables and award the Appellants same having been established undisputedly through Exhibit D.

The Appellants contends that the trial Court held that the Appellants are not entitled to 10% of the contract sum because of the non-commissioning of the project and relied on same to deny the Appellants the full sum claimed as outstanding

balance for the contract (see P. 196-197 of records). It is trite law that even though oral evidence cannot be used to contradict the contents of a written document or contract, but there are circumstances in law in which the contents of a document (contract) may be added to or varied by oral evidence as stated in Section 128(1) of the Evidence Act, 2011. According to the Appellants, they knew that Clause 9d of Exhibit H provides for commissioning which they did not relate their mind to at the time of entering the contract but going by law, the onus on them is to prove that part of the contract is not valid to deny them the full contract sum because their own part in the contract is simply the acquisition of Nasarawa State Urban imageries and they reproduced paragraph 18 of the statement of oath at page 86 of the records. The onus is on the Respondents to contradict the averment that the contract awarded to the Appellants required commissioning before the 10% could be paid but they never did nor did they cross examine the Appellants on that fact. The Appellants cited NASIR V. CSC KANO STATE (2010) 25 WRN 1 to state that such fact and evidence even though oral

is deemed established and can be used to validate the part of Exhibit H which provided for payment of 10% on commissioning which is in line with the proviso of Section 128(1) of the Evidence Act, 2011. The Appellants further submit that in interpreting contracts, the Courts are enjoined not to do a sheepish interpretation because the authority that parties are bound by the terms of the contract admits of exceptions and this case falls under one of the exceptions in consideration of Section 128(1) of the Evidence Act, 2011. The Appellants urge this Court to uphold their submission and to hold that Clause 9d of Exhibit H is not capable of denying the Appellants the percentage due to them in the contract sum. The Appellants contends that no time was fixed in the contract for the commissioning of the project and in such circumstances; the test to be applied in determining whether the Appellants are entitled to be paid same is the reasonable time test. The Appellant relied on LEADER JOSEPH ESENOWO V. MISS COMFORT OKON SAM (2013) LPELR-21130 (CA) in support. The Appellants submitted that from Exhibit D the Appellants delivered the work they were contracted to do to

the Respondents on 28th October, 2011 and filed the case at the Court below on 23rd September, 2014 to claim the contract sum and interest delivered in December, 2016. In Exhibit H-clause 9 which the trial Court relied on did not state any time for the commissioning of the project, if there was any commissioning to be done, the Respondents should be responsible for that. The Appellants averred that the contract awarded to them needed no commissioning, even the Respondents never said anything on commissioning. According to the Appellants, from the time the Appellants discharged their obligations in the contract up to the time of the judgment of the Court below, is clear 5 years and that is reasonable time for the project to have been commissioned and if the Respondents decided to wait for 20 years to commission the project, the Appellants cannot be denied their full contract sum on that ground. The Appellants urge this Court to resolve this issue by awarding the Appellants the 10% commission.

ISSUE TWO
The Appellants argued that by the totality of oral and documentary evidence at trial, the judgment of the trial Court is against the weight of

evidence. The Appellants restated the principle enshrined in Section 137 of the Evidence Act, 2011 and cited the cases of OSUJI V. EKEOCHA (2009) 7 SCNJ 248 and SHELL PETROLEUM V. EDAMKUE (2009) 7 SCNJ 124. The Appellants submits that the Respondents contended in their affidavit and written address in support of the notice of intention to defend that there is no valid agreement between the Appellants and the Respondents also counterclaimed for 11% VAT from the Appellants (See pages 64 to 72 of records), however, when the case was transferred to general cause list, their contention also change, they claimed that they are entitled to 30% mobilization paid to the Appellants and no longer 11% VAT earlier claimed. Continuing, the Appellants states that the entire defence of the Respondents is not only inconsistent but unreliable, by filing two separate processes in defence of the same claim and therein averred separate facts which are in conflict with each other, thus the height of inconsistency. Also, the Respondents in their pleadings never stated that the Appellants did not carry out their work but during their oral testimony they made a U-turn claiming that the

Appellants never did the work for which they earlier counterclaimed 11% VAT. Also, by the finding of the trial Court in awarding 30% for clause 9b shows clearly that any assertion that the Appellants never did the work is false. The Appellants urge the Court to resolve this issue in their favour.

Furthermore, the Appellants urge the Court to allow the appeal and award the items rejected by the trial Court because they have proved their case to entitle them to their full contract sum as claimed in their writ of summons and accordingly award the Appellants the full sum of N2,562,000.00 (two million five hundred and sixty two thousand naira). The Appellants cited IDOWU V. THE STATE (2011) 37 WRN 108 and NWANA V. F.C.D.A. (2007) 26 WRN 1 to also urge the Court to set aside the judgment of the lower Court because it has occasioned miscarriage of justice and enter judgment for the Appellants as per their claims.

RESPONDENTS’ SUBMISSION
ISSUE ONE
The Respondents relied on EKONDO COMMUNITY BANK LIMITED V. MR. ENIEFIOK MBOM ANIETING (2013) LPELR-21139 (CA); SPDC (NIG.) LTD. V. EMEHURU (2007) 5 NWLR (PT. 1027) 347; LARMIE V. DPMS LTD (2005) 18

NWLR (PT. 958) 438 to submits that Exhibit B is the contract agreement between the Respondents and the 1st Appellant (See P. 32 of record) and it’s the same document the trial Court relied on to determine the nature and terms of the contracts. The Respondents reproduced Clause 9 of the said Exhibit B and the holding of the judgment of the trial Court at pages 175-198 and also relied on the case of ALHAJI SAFIANU AMINU & ORS V. ISIAKA HASSAN & ORS (2014) LPELR-22008(SC). The Respondents submits that the Appellants failed to produce evidence before the Court on what amounted to deliverables but relied on the digital copy of the satellite imageries and hard copy printouts of the satellite images. The Respondents restated the principle of standard of proof in civil matters as held in ADELAKUN V. ORUKU (2007) 17 WRN 89 and submits that the Appellants had failed to lead evidence to show compliance with the terms of the contract Agreement, for instance, paragraph 9 of Exhibit B which contains the stages of work done under the contract. There was no dispute with paragraph 9(a) but the Appellants left the trial Court to speculate on whether they complied

with paragraph 9(b), (c) and (d), this is what the trial Court relied on to transfer the matter from the undefended list to the General Cause List, relied on BAKER MARINE NIG. LTD. V. CHEVRON NIG. LTD. (2006) 13 NWLR (PT. 997) 276. The Respondents states that the Appellants could not claim that they are entitled to 30% for satellite imagery as well as 30% for deliverables when by their admission at paragraph 3(j) they only submitted satellite imagery. Also, the Appellants cannot claim that the imagery is the same as the deliverables when different amount of the contract sum are allocated to each aspect of the contract. They cited EKONDO COMMUNITY BANK LIMITED V. MR. ENIEFIOK MBOM ANIETING (SUPRA). According to the Respondents, the trial Court was right to hold that the Appellants were not entitled to 30% for deliverables and the amount claimed because they failed to prove and make clear whether the items of payment were the same and pursuant to any additional oral agreement to change the contract agreement. Cited LAWAL V. MAGAJI (2010) 8 WRN 102; ALAO V. AKANO (2005) 22 NSCQR 867. The Respondents also cited MOHAMMED & ANOR V. ABDULAZIZ (2008) LPELR-4496(CA) and

argued that the submission of deliverables was a condition precedent to the payment of a portion of the contract sum which the Appellants had duty to prove that they have complied with and proof of compliance required that the items submitted are the same items required in the contract. Therefore, it is misconstrued to claim that the issue of deliverables was raised by the trial Court suo motu as it was a fact which the trial Court has the duty to draw inference from. They relied on the case of MATTHEW OKECHUKWU ENEKWE V. INTERNATIONAL MERCHANT BANK OF NIGEIRA LTD & ORS (2006) LPELR-1140 (SC). The Respondents states that the trial Court did not raise the issue suo motu as argued by the Appellants. The point the trial Court made is that there was no material before it which it could use to decipher what that term meant. If the trial Court had invited the parties to address him as was argued by the Appellant, this would have amounted to descending into arena i.e. the Court would be literally handling the case for party. (See P. 196 of record) and cited OMOKUWAJO V. FEDERAL REPUBLIC OF NIGERIA (2013) LPLER-20184(SC) to state that there are exception to the above rule.

The Respondents argued that it is not true that they did not cross examine the Appellants on the issue whether they completed the contract because at page 164 of the records show the response to the said question by the Appellants, therefore, their argument holds no water and assuming but not conceding that the Respondents had not cross examined on that issue, it is not in all cases that it would amount to an admission in evidence as stated in AKPORO V. UGHALAA (1995) 8 NWLR (PT. 411) 128. Also, the Respondents states that in addition to cross examining the Appellants on the evidence adduced which materially contradicted the position of the Appellants that the contract agreement was fully completed. The Respondents reproduced also the testimony of the Appellants in P. 164 of records and relied on SAGAY V. SAJERE (2000) 2 SCNQR 347. According to the Respondents, the Appellants contended that the contract was to be performed in stages and payment made stages as contained in the contract agreement but the Appellants failed to prove that all stages had been complied with thus entitling them to the full contract sum which makes the judgment of

the trial Court right and refuse to speculate.

ISSUE TWO
The Respondents cited OSOLU V. OSOLU & ORS (2003) LPELR-2810(SC); EGONU V. EGONU (1978) 11-22 SC 111; OGBODA V. ADULUGBA (1971) 1 ALL NLR 68 and argued that a complaint that the judgment is against the weight of evidence must be against the totality of evidence adduced, citing BALOGUN V. E.O.C.B. (NIG) LTD 1 (2007) ALL FWLR (PT. 382) 1952. The Respondents submitted that the trial Court did not accept evidence wrongly or drew a faulty inference therefrom. The challenge the trial Court had was that there were no evidence to draw inference from and the Court was left to speculate. Furthermore, the Respondents submit that the Appellants did not provide evidence to show compliance with all required stages of the contract which was what disentitled them to full award on the contract sum. The Respondents reproduced the holding of the trial Court at page 197 where it evaluated the evidences before it and conclusion. The Respondents urge the Court to uphold the decision of the trial Court as it is not against the weight of evidence as envisioned by law.

The Respondents also argued that when

reviewing the exercise of Court’s discretion, the essential requirement is whether the finding occasioned a miscarriage of justice even if the requirements of a good judgment are not expressly contained therein, cited A.G. FEDERATION V. ATIKU ABUBAKAR (2007) 32 NSCQR 1; NDDC V. PRECISION ASSOCIATION LTD. (2006) 16 NWLR (PT. 1006) 527. It is trite that where a correct decision is arrived at in the eyes of the law, the fact that insufficient or even a wrong reason was given for such decision is of no moment, it will not affect the veracity of the judgment that a trial Court did not look into all available details of circumstances which, put together and considered, must lead to the conclusion that a party’s claim was properly dismissed. It is enough that the it was reached by an insufficient or even some wrong reason as held in M.H. (NIG) LTD V. OKEFIENA (2011) 6 NWLR (PT. 244) 514; LEBILE V. THE REGISTERED TRUSTEES OF CHERUBIM & SERAPHIM CHURCH OF ZION OF NIGERIA, UGBONLA (2003) 2 NWLR (PT. 804) 399; UKEJIANYA V. UCHENDU (1950) 13 WACA 45; AYENI V. SOWEMIMO (1982) SC 60; ABAYE V. OFILI (1986) 1 NWLR (PT. 15). In spite of all the issues raised by the

Appellants, the judgment of the trial Court favoured them as partly and the Appellants have not shown how miscarriage of justice occurred. The Respondent also cited the case of KAYDEE VENTURES LTD V. MINISTER, FCT (2010) 41 NSCQR 830 to state that the Appellate Court will not interfere with the findings of a lower Court. The Respondents urged this Honourable Court not to interfere with the unassailable findings of the trial Court and on behalf of the Respondents, to dismiss this appeal for lack of merit.

APPELLANTS’ REPLY BRIEF OF ARGUMENT
The Appellants in reply submitted that the Respondents contended that the Appellants failed to prove their case at the trial Court even the trial Judge stated same in his judgment at page 196 line 2, that the Appellants failed to explain what amounts to “all deliverables” under the contract and failed to show that they were indeed supplied to attract 30% of the contract sum. However, the Appellants states that from the pleadings filed at the trial Court, the Respondent never denied knowing what amounts to deliverables in the agreement both parties entered into, as it is settled, parties are bound by

their pleadings and not what the trial Judge feels is fair conclusion for parties as held in ODI V. IYALA (2004) 6 NJSC 924. Whatever the Respondents at trial wanted to deny and put the Appellants to strict proof of, they should have done that in their statement of defence or pleadings at trial, relied on Section 74 of the Evidence Act, 2011 and AGIDIGBI V. AGIDIGBI (1992) 2 NWLR (PT. 221) 98 CA. The Appellants submits that the trial Judge was not right to put the Plaintiff to prove what the Respondents had already admitted or never disputed or called for proof of. Cited Section 122(2) (m) of the Evidence Act, 2011 and states that there is nowhere in the processes filed by the Respondents that showed they did not know what amounts to deliverables in the agreement they entered. According to the Appellants, the Respondents never averred that the Appellants supplied some items and left some items unsupplied, such contentions are only contained in the judgment of the lower Court raised and resolved by the trial Court against the Appellants and following same, he refused them money due to them. It is trite that any material allegation of fact which is not denied is

deemed admitted as stated in NJOEMANA V. UGBOMA & ANOR (2014) LPELR-22494; CHIEF UFIKAIRO MONDAY EFET V. INEC & ORS (2011) 1 SCM 179; for instance, the Appellants did not supply any deliverables as required under the contract, the Respondent would cry more loudly than the Appellant but they clearly kept quiet only for the trial Court to raise same for them in his judgment.

The Appellants also submit that the findings of the trial Court that the Appellants are not entitled to 30% contract sum upon submission of all deliverables cannot be supported having regard to the pleadings and evidence led at trial. Relied on EZEONWU V. ONYECHI (1996) 3 NWLR (PT. 438) 499; OKEBOLA V. MOLAKE (1975) 12 SC; UNION BANK PLC ANOR V. AYODARE (2007) 30 NSCOR 1. Furthermore, the Appellants argued that the Respondents failed to respond to their argument on 10% of contract sum on commissioning which is deemed admitted. The non-commissioning of a contract 6 years after the Appellants have discharged their obligations under the contract is more than reasonable time for the Respondents to have paid them for the work. The Appellants urge this Court to uphold their argument and set

aside the judgment of the trial Court.

RESOLUTION
I have fully considered the Notice of Appeal, the Record of Appeal and the Briefs of respective parties in the appeal, I am inclined to adopt issues formulated by the Appellants for resolution by the Court, this is informed by the need to determine all areas of complaint in the appeal. I shall do so seamlessly because issue two is a complaint against evaluation of evidence as done by the trial Court and that will be looked at from issue one which also have a bearing to evaluation of evidence.

The claim as filed by the Appellants was simply a liquidated money demand in the sum of N2,562,000.00 (Two million five hundred and sixty two thousand naira) only, being the outstanding balance due to the Appellants for the contract awarded by the Respondents, awarded for the acquisition of Satellite Imageries of Nasarawa State Urban Areas, it was initially filed under the Undefended List Procedure and upon filing a Notice of intention to defend by the Respondents wherein they alleged that there was no valid contract between the parties and counter claimed for 11% tax from the Appellants, the claim was

transferred to the general cause list and parties filed written statements on oath. After that, the character of the defence changed by the Respondents claiming for 30% mobilization fees paid to the Appellants and the Court below entered judgment for the Appellant in part.

contract and if any dispute should arise with respect to the contract, the terms in any documents which constitute the contract, are invariably the guide to its interpretation. See Per MOHAMMED, J.S.C in ONYKWELU V. ELF PETROLEUM (NIG) LTD. (2009) LPELR-2733 (SC).”
Also the following cases A.G. FERRERO & CO. LTD. V. HENKEL CHIMICALS (NIG.) LTD. (2011) LPLER-12(SC); BEST (NIG.) LTD. V. BLACKWOOD HODGE NIG. LTD & ANOR (2011) LPELR-776(SC)

The main document which created the contract is Exhibit H which stipulated the terms of the contract, the work to be done and the Schedule of payments which was tied to different stages of the work. One of such was the payment of 30% mobilization fees which was duly paid at the onset of the contract. The schedule of payment is covered by Clause 9 which provides thus:
“CLAUSE 9: PAYMENT
Payment shall be made follows:
a. 30% mobilization fees on the presentation of advance payment guarantee from a reputable bank acceptable to the employee.
b. 30% on submission of geo- referred imagery.
c. 30% on submission of all deliverables.
d. 10% after commissioning of the

project.”
Also closely related to Clause 9 is Clause 10 which provides thus:
“The employer may for reasons beyond its immediate control, delay payment and any reason for such delay shall be communicated to the contractor within a reasonable time”.

It is clear that the payment of 30% mobilization was not subject to refund as can be seen above, the claim for refund though abandoned was therefore strange and out of the contemplation of the parties and that explains why it was abandoned.

It is therefore strange for the Respondents to revisit mobilization fees and even seek for a refund after the completion of the contract. It was a very strange claim by the Respondents which is outside the contractual agreement and therefore has no basis in law. It was merely a diversionary step. It was the opinion of the learned trial Judge that the Appellants did not prove that all deliverables were duly delivered so as to make the 30% payment under Clause 9c due for payment. First, the contract document did not define what it meant by deliverables but Dictionary.Com defines it as “something capable of delivery; or something that

can be done especially something that is a realistic expectation; or something, as merchandise, that is or can be delivered, especially to fulfill a contract”. Inference can be made from the nature of the contract in issue here. The contract was for the acquisition of Satellite Images of Nasarawa State Urban Area and the fundamental deliverables here are the Satellite Images of the Urban Areas of Nasarawa State. It is therefore that services that can be delivered by the Appellants. The Appellants in its evidence, told the Court clearly that they completed the contract, see paragraph 13 of the PW1’s statement on oath at page 85 where the 2nd Appellant said thus:
“That I know as a fact that upon receipt of the mobilization fee we satisfactorily completed the project and we did all we were required to do under the contract.”

This was not challenged by the Respondents, which means it was admitted that the contract was fully performed. The Appellants also stated that they submitted Digital copy of the satellite imageries in a CD Rom and three hard copies printout of the satellite imageries. The question to ask is whether there was

anything outstanding to be done beyond what the Appellants did under the contract? None was named by the Respondents and it did not contend that anything was left undone and in fact its sole witness in answer to a question under cross examination, clearly stated that the contract was executed. The Court below in its judgment at pages 195 of the record of appeal had this to say:
“In the absence of clear evidence on what amounts to all deliverables, I cannot for certain hold that the submission of the aforesaid constitutes execution of clause (9c) of the contract agreement”.

The reasoning of the trial Court could have made sense if, after all, the Appellants delivered had fallen short of what is specifically named in the contract document. The question to ask is what else could be delivered in a contract for Satellite Imagery of Urban Areas other than what was submitted and in the form they were delivered? If deliverables had a different meaning, the contract document should have said so. The trial Court cannot read into the contract what is not stated therein. Furthermore, the employer did not complain that not all deliverables were

submitted and also failed to name what was outstanding. To now speculate on what deliverables means is nothing but a deliberate way to avoid the obvious. I agree with the Appellants that the Court below was economical with the truth in its finding and did not serve the interest of justice.

The Respondents acknowledged the receipt of two items without any complaint and going by the judgment of the Court below, the Respondents are to pay for one item instead of two, how then would the second item be paid for and under what arrangement? The Respondents who did not challenge the assertion that the contract was fully performed cannot be heard to contend otherwise, the law is trite on failure to traverse and to also cross examine a witness on essential facts, the party cannot question those facts again because the implication is that he accepts the statement as the truth and the Court should act on such evidence. I agree with the Appellants that the Court below made a case for the Respondents without any justified ground, it ignored the evidence presented which was admitted by the Respondents and raised questions which were not presented by the parties. The

Court below erred in doing so thereby handing down a perverse decision. I hereby set aside the refusal to award the 30% as provided for under clause 9c and I award same.

Furthermore, the Appellants having sent a demand letter which was not denied, the law presumes that as acceptance of liability, see ONUIGBO V AZUBUIKE (2013) LPELR-22796 (CA) wherein the Court considered whether failure to respond to a business letter which by the nature of its contents requires a response amounts to an admission, it held thus:
“What are the general principles of law governing correspondence in business transactions. In Trade Bank Plc. V. Chami (2003) 13 NWLR Pt. 336 P. 158 @ 219 – 220 this Court held that business letters, unlike social correspondence, deserve to be replied. Consequently, the Court would, unless the circumstance in which a business letter is written shows otherwise, infer that the failure to reply a business letter is an admission of the facts stated in the letter. This is so because what is not denied is deemed admitted. In Vaswani v. Johnson (2000) 11 NWLR Pt. 679 P. 582, this Court also stated that in business and mercantile transactions where in

ordinary course of business a party states in a letter to another that he has agreed to do certain things, the party who receives that letter must answer if he means or intends to dispute the facts that he did not agree, where there is silence in the circumstances in which a reply is obviously expected an irrefutable presumption of admission by conduct or representation is raised … However, there is an exception to the general principle of law expressed in the foregoing cases. For instance in Trade Bank Plc. V. Chami supra, page 279, the Court held that it is not in every case that failure to give a reply to letters written on business matters and received by one of the parties to the proceeding would be taken as strong evidence that the party receiving the letter admitted what was asserted therein. The Court is enjoined not to take the rule as an absolute one but rather to consider each case on its own merit, and examine the circumstances under which the letter was written. It is after doing so that the Court is to decide whether it is a case where an inference of admission could safely be drawn or not. In Emaphil v. Odili

(1987) 4 NWLR Pt.67 P. 915 the Court also stated that a businessman is not obliged to reply to every letter, and it is not an absolute rule that in all cases of failure to reply, an inference of admission must be drawn. The only fair way of stating the rule of law in that regard, is that every case must be looked at in the circumstances under which the letter was written, and determine whether in the circumstances the refusal or failure to reply per se amounts to an admission. The Court is entitled to look at the facts and circumstances of the case in which an inference of an admission ought reasonably be drawn.” Per BDLIYA, J.C.A.

In view of the facts in this appeal where the Appellants’ evidence on completing the project and handing over same was not stoutly denied, the demand letter wherein the facts leading to the demand for payment was not responded to but a purported termination of contract which in any case did not comply with the terms of the contract would definitely amount to an admission and I find that the Respondents having failed to refute the claims of the Appellants is bound by it. The belated attempt to assert that the contract

was terminated cannot hold. Again, the feeble denial of the fact that the person who received the items an Assistant Surveyor General was not the Surveyor General cannot derogate from the fact that he was in the office of the Surveyor General. Again, the Appellants also stated that the State has been using the information delivered to the said Usman and the Respondents still kept mute. The Respondents cannot escape liability merely on the ground that the contract was executed in 6 months instead of 3 months having not complained, the Respondents have waived its right to act on the failure to deliver on time as specified in the contract document. It is trite that a breach of a term of contract can give the other party the right to repudiate the contract and in doing so, do it according to the terms of the contract, see THE UNITED CALABAR CO. V. MESSR. ELDER DEMPSTER LINES LTD (1972) LPELR-3400(SC) where the apex Court held thus:
“A breach of an executory contract may be a good reason for the innocent party to repudiate the contract, but if the parties agree by their contract to a method of determination in the circumstances, that method must be followed if

it is intended by either side to avail himself of the opportunity of repudiation.” Per COKER, J.S.C.

The Respondents again failed to do so and purported to terminate after 3 years and after the Appellants have submitted deliverables to Surveyor Usman. Clause 13 of agreement stipulates that for termination of the contract there must be 14 days’ notice given to the defaulting party, it says:
“The employer shall give 14 days’ notice to the contractor of its intention to determine the contract.”

No notice was given in this case and the use of the word shall make it imperative that in seeking to terminate the contract the employer must be given 14 days’ notice. The Appellants also contended that the allegation of not performing the contract after 5 months is untenable because time would start to run from the time of payment and no evidence of payment was presented by the Respondents even though pleaded and front loaded and which made the trial Judge to rightly invoke Section 167(d) of the Evidence Act to say that the Respondents knew that if tendered it would be against them so it was withheld.

The Court below also

refused to grant the award the claim of 10% the last item under the schedule of payment stated in the contract reproduced above (exhibit H, paragraph 9d). The refusal to award 10%, the Court below stationed it at the doorstep of the non-commissioning of the project.

The project had a lifespan of 3 months. The Appellants completed the project in about 5 months from signing of the contract and not from date of mobilization. The Respondents have been using the imageries since the completion of the project. There is acknowledgment from one Usman who was a staff in the office of the Surveyor General. This, the Respondents sought to deny, without telling the Court who the Surveyor General was at the time, to input falsity to the claim that Usman did so act as Surveyor General. The Respondents further contended that deliverables should have been submitted through consultants but the agreement did not say so. Therefore, the Appellants cannot be blamed for submitting the work directly to the relevant Ministry. Arguing further, the Appellants submitted that there was no provision mandating them to deliver any work or be issued certificates by the consultants and the

argument that no certificate of performance was issued is untenable and cannot stand. In any case, the consultants were responsible to the employer and if they defaulted, they can answer to the employer and the Appellants cannot be liable. The contention of the Respondents is that since the project was not executed within time stipulated they allegedly terminated the contract. They failed to show that they paid promptly mobilization on the execution of the contract. This argument is flawed.

The trial Court held that non-commissioning of the project defeated the claim of 10% which was not granted. There was no time set for commissioning and the deliverables submitted have been put to use. I disagree with the Appellants that oral evidence should be admitted to vary the aspect of the contract touching on commissioning. If the Respondents desired to commission that is their discretion which cannot be questioned. I opine that the relevant issue here is: whether in view of non-designation of time for commissioning, the Respondents can opt not to commission simply to avoid its obligation under the contract. The law is settled that where time is not set or

agreement is silent as to time of its performance or the for the taking of a step under a contract, the law implies that it should be done within a reasonable time, see EDEM V CANON BALLS LTD & ANOR (2005) LPELR-1007(SC) which held as follows:
”The law however, is that if the contract agreement is silent as to the time of performance of a contractual obligation, the Court will read into the contract a term that the performance is to be given within a reasonable time. See: Hick v. Raymond (1893) A.C. 22; Hulthen v. Stewart & Co. (1903) A.C. 389 and Monkland v. Jack Barclay Ltd. (1951) 2 K.B. 252.” Per OGUNTADE, J.S.C.
See also the following: MOHAMMED V MOHAMMED & ANOR (2011) LPELR-3729(CA) where the Court held thus:
“In contractual relations where time is of essence in respect of performance of a contract, the law will imply performance within a reasonable time, although the contract between parties is silent in respect of time for performance. See Nig. Bank for Commerce & Industry v. Integrated Gas (Nig.) Ltd. & Anor (2005) 1 SCNJ 104. Thus, where no term concerning time for performance was agreed upon by parties, it is the

duty of the Court to read into the contract a term that performance was agreed to be given within a reasonable time. See Paul E. Edem v. Canon Balls & Anor (2005) 6 SCNJ 189.” Per OGUNWUMIJ, J.C.A.
See also the following cases: NIGER INSURANCE CO. LTD. V ABED BROTHERS LTD. (1976) SC; MALIK V KADUNA FURNITURE & CARPETS CO. LTD. (2016) LPELR-41308(CA); NKAZI V STANBIC IBTC BANK (2018) LPELR-49153(CA) and ZENITH BANK PLC V EMIRATES CREDITCORE & INVESTMENT LTD (2016) LPELR-41586(CA).
Since the contract did not designate time for the commissioning of the job when completed, the Court has a duty to imply and read into the contract the term that the completed job should be commissioned within a reasonable time. A reasonable time will depend on the facts and circumstances of each case. In this case, the contract was to be completed within 3 months and it was delivered within 5 months from the date of signing the contract and not from the date of payment of mobilization fees. The job was duly executed, acknowledged and the Respondents were duly notified. The duration of the contract itself was 3 months. The Respondents began using the work upon

completion but failed to make any arrangements for the commissioning since then until this action years later. The nature of the job is one that once completed, there is nothing outstanding that the Appellants can be called upon to perform. Furthermore, the Respondents have been using the completed job without any complaint and having the peculiar circumstances at the back of the mind, I consider a period of six months’ reasonable time for the Respondents to have commissioned the completed job so as to allow the Appellants claim its 10% outstanding or withheld until commissioning of the job.

The refusal to award the 10% after completion by the Court below was wrong and a travesty of justice. I set aside the refusal and award the 10% outstanding claim in favour of the Appellants. The argument of the Respondents on this issue is preposterous and untenable.

Having resolved the two issues in favour of the Appellants, the appeal is meritorious and succeeds. The judgment of the Court below delivered by HON. JUSTICE J. G. ABUNDAGA (as he then was) on the 7th day of December, 2016 is hereby set aside. I hereby make the following award:
i. The sum

of N2,562,000.00 (Two million five hundred and sixty-two thousand naira) only being the outstanding balance due to the Appellants for the contract for the acquisition of Satellite Imageries of Nasarawa State Urban Areas.
Cost of N200,000.00 in favour of the Appellants.

IGNATIUS IGWE AGUBE, J.C.A.: I have read the draft copy of the lead judgment delivered by my learned brother, HON. JUSTICE YARGATA BYENCHIT NIMPAR, J.C.A. and I am in total agreement with his reasoning and conclusion in the lead judgment that this Appeal is meritorious.

There is no doubt that the Appellants entered into contract in writing with the Respondents vis-a-vis Exhibit “A” (Letter of Award), Exhibit “B” (Letter of Acceptance) and Exhibit “C” (Contract Agreement). Therefore, it is trite law that in all cases of contract between parties, there must be an intention to create, be bound by the terms of the contract and the parties must be ad idem with regard to the essential terms and conditions thereof; the parties must intend to create legal relations and the promise of each party, in a simple contract not under seal, must be supported by consideration. Furthermore,

there must be a concluded bargain which has settled all essential conditions that are necessary to be settled and leaves no vital term or condition unsettled see ALFOTRIN LIMITED VS. THE ATTORNEY-GENERAL OF THE FEDERATION & ANOR. (1996) LPELR-414 (SC) PER IGUH, J.S.C. AT PAGES 29-30, PARAS B-A; (1996) 9 NWLR (PT. 475) 634.
See also the case of STABILINI & CO. VS. OBASI (1997) 9 NWLR (PT. 520) 293 AT 300, PARAS. C-B; where the Court held thus:
“The essential elements of contract are Offer and Acceptance, and in order to decide whether the parties have reached an agreement it is usual to inquire whether there has been a definite Offer by one party and an Acceptance of that Offer by the other…. A contract may also be expressed or implied. It is expressed by words spoken between the parties or by agreement in writing signed by the parties. A contract could also be implied by the conduct of the parties themselves. See Majekodunmi vs. National Bank (1978) 3 SC 119 at 127.”
In the recent case of the Apex Court in ATIBA IYALAMU SAVINGS & LOANS LIMITED VS. MR. SIDIKU AJALA SUBERU & ANOR. (2018) LPELR- 44069 (SC). KEKERE-EKUN, J.S.C. held at pages

18-19, PARAS. C-A that:
“It is trite, as rightly submitted by learned Counsel for the Appellant, that for there to be a binding contract between parties, they must be in consensus ad idem with regard to the essential terms and conditions thereof. The parties must intend to create legal relations and the promise of each party in a simple contract, not under seal, must be supported by consideration. There must be a concluded bargain which has settled all essential conditions that are necessary to be settled and leaves no vital term or condition unsettled…”

The Appellants instituted the action against the Respondents in the lower Court for the liquidated monetary claim as a result of the contract entered into between the parties. The Appellants stated that after the completion of the project and he submitted/handed over same to the Defendants; he waited for three years to be paid the balance outstanding and when it was not forth-coming and no reason was given by the Defendants for non-payment, then he demanded for the payment of his outstanding balance without response from the Respondents and later instituted the instant suit to claim

the balance of N2,562,000.00. This Court had held in JOHN TUNDE ORILOYE VS. LAGOS STATE GOVERNMENT (2014) LPELR-22248 (CA) PER IYIZOBA, J.C.A. (as he then was) at pages 31-32, paras G-A thus: –
“The law is that where a party to a contract receives a correspondence from the other party on the contract and he keeps silent thereon in circumstances in which reply or reaction is obviously expected, he is presumed to have consented to the contents of the correspondence. See Weidemann vs. Walpole (1891) 1 Q.B. 534 at 537; Iga vs. Amakiri (1976) 11 SC 1; Gwani vs. Ebule (1990) 5 NWLR (Pt. 149) 201; and Vaswani vs. Johnson (2000) 11 NWLR (Pt. 699) 582. The Claimant will thus be deemed to have consented to the revised capital development levy and the condition contained in Exhibit “C7”.”

On the above score, the Respondents’ silence after receiving the report of the completion of the awarded to the Appellants as well the Letter of Demand for Final Payment (Exhibit “E”) dated 28th October, 2011 constitute elements of bad faith as the Respondents were under a duty to communicate regularly with the Appellants in view of CLAUSE 10 of the

Agreement (Exhibit “C”) which stated that: “The Employer may for reasons beyond its immediate control, delay payment and any reasons for such delay shall be communicated to the Contractor within a reasonable time.” The evidence-in-chief of PW1 (2nd Appellant) in paragraph 13 of the Statement on Oath also stated thus: “That I know as a fact that upon receipt of the Mobilization Fee, we satisfactorily completed the project and we did all we were required to do under the Contract.”

Based on the foregoing, it is my candid opinion that the Appellants have established that Court below was wrong in refusing to award of the balance of the contract sum after commissioning of the Project as contained in CLAUSE 9(d) (Payment) — Exhibit “C” (Contract Agreement). Accordingly, the order refusing to award the said 10% of the balance of the contract sum in favour of the Appellants after completion and commission of the project is hereby set aside and in its stead, I also award the 10% outstanding claim in favour of the Appellants.

Consequently, the Appeal succeeds and is hereby allowed and the judgment of the Lower Court is

also set aside. I also abide by the order to costs.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I read in draft before now the lead judgment just delivered by my learned brother NIMPAR, J.C.A., and I agree with the reasoning and conclusions reached therein.

The appeal is imbued with merit and is accordingly allowed by me.

I abide by the consequential order made in the leading judgment including that of costs.

Appearances:

C. OKAFOR For Appellant(s)

SOLOMON W. AYENAJEH (Dep. Director Nasarawa State) For Respondent(s)