MR. CHRIS DURA AONDO v. BENUE LINKS NIGERIA LIMITED (2019)

MR. CHRIS DURA AONDO v. BENUE LINKS NIGERIA LIMITED

(2019)LCN/12806(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 6th day of March, 2019

CA/MK/80/2016

RATIO

DOCUMENT:WHETHER REFERENCE CAN BE MADE TO PREVIOUS NEGOTIATION

“Be it noted that extrinsic evidence includes documents. See Union Bank (Nig) Ltd. v Ozigi supra.
In Union Bank of Nigeria. Plc v Nwaokolo (1995) 6 NWLR (Pt. 400) 127, 142, referred to by the learned trial Judge in His Lordship’s judgment, Onu, JSC, re – stated the law as follows: it is settled that in construing a document, reference can not be made to previous negotiations, nor can the words of the written agreement be affected by the conduct of the parties before or after execution of the agreement. Indeed, it is an established canon of interpretation that the instrument must be construed as at the time of its execution and nothing more. So also in Ogundepo v Olumesan (2011) LPELR 1297 (SC) 17.” PER JOSEPH EYO EKANEM, J.C.A.

JUSTICES

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria

Between

MR. CHRIS DURA AONDO Appellant(s)

AND

BENUE LINKS NIGERIA LIMITED Respondent(s)

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment):

The appellant entered into an investment agreement with the respondent on 11/2/2011. The agreement was reduced into writing which was signed by both parties. Pursuant thereto, the appellant deposited the sum of N15,000,000:00 with the respondent. Interest at the rate of 25% monthly was to be paid by the respondent on the investment sum which was to be redeemed within a period of 60 days, which was agreed to be the period of the investment.

The respondent paid back the investment sum of N15,000,000:00 and a further sum of N6,250,000:00 as interest. The appellant contended that interest balance as at 11/8/2011 was N16,250,000:00. The respondent wrote a letter signed by its General Manager and Finance Manager acknowledging the outstanding balance of the accumulated interest as N16,250,000:00. Upon failure of the respondent to pay the sum of N16,250,000:00, appellant took out a writ of summons at the High Court of Benue State (the trial Court) in Suit No. MHC/46/2016 endorsed with a statement of claim for the following reliefs:

(i) The sum of N16,250,000:00 being the agreed outstanding balance owed the Plaintiff by the Defendant.

(ii) Interest on the sum of N16,250,000:00 at the rate of 10% from the date of judgment until judgment debt is liquidated.

(iii) The cost of this action.

The appellant also filed a motion on notice for summary judgment in the same terms as those set out above. The respondent filed a counter – affidavit in opposing the motion. The trial Court granted the motion for summary judgment only in the sum of N1,250,000:00 with interest of 10% per annum. The balance of the claim was transferred to the general cause list to be heard on pleadings.

At the hearing, appellant testified as PW1 and tendered 5 exhibits. He called no other witness. Respondent chose not to call any witness and rested its case on appellant’s case. After taking addresses from counsel, the trial Court, in a reserved judgment, dismissed the case of the appellant on 4/12/2015.

Aggrieved by the judgment, appellant has appealed to this Court by means of a notice of appeal filed on 22/2/2016.

At the hearing of the appeal on 23/1/2019, appellant’s counsel, Professor A.S. Shaakaa adopted and relied on appellant’s brief of argument which was filed on 12/6/2017 but was deemed duly filed and served on 20/9/2018. He urged the Court to allow the appeal, set aside the judgment of the trial Court and enter judgment for the appellant in terms of his claims.

The respondent did not file a brief of argument but its counsel, T.M. Nule, Esq., applied for an adjournment on the basis that he was briefed late last year. He however did not specify when he was briefed. The Court refused the application for adjournment and reserved judgment thereafter.

Out of the 5 grounds of appeal in the notice of appeal, appellant’s counsel in his brief of argument, formulated 5 issues for determination. The issues are:

1. Whether from the evidence advanced before the Trial Court, which evidence was unchallenged, uncontroverted, and wholly admitted, the Learned Trial Judge, was, nonetheless, correct in law to have dismissed the Appellant?s claim. (Distilled for Ground 1 of the Notice of Appeal).

2. Whether, in view of the part judgment entered for the Appellant in the sum of N1,250,000 with interest at 10% per annum, the Learned Trial Court was, none the less, correct in law to have held that the application for summary judgment was dismissed, as to suggest outright want of merit thereof (Ground 2 of the Notice of Appeal).

3. Whether or not the Learned Trial Judge was correct in law to make a case for the respondent by suggesting outright conspiracy between the Appellant and the Respondent’s agent, particularly, when the Respondent had accepted wholly the Appellant?s case, as presented before the Trial Court (Ground 3 of the Notice of Appeal).

4. Whether or not the acts of the General Manager of the Respondent, being the agent thereof, are binding on the Respondent; and whether or not, in the absence of any evidence to the contrary, such General Manager can be held liable for contracts entered into by the Respondent, even when there is no evidence to guarantee personal liability (Ground 4 of the Notice of Appeal).

5. Whether the General Manager of the Respondent, being a mere agent, can be held liable for contracts entered into by the Respondent, in the absence of any shown evidence of guarantee of personal liability (Grounds 4 and 5 of the Notice of Appeal).

There are many points to be raised regarding the formulation of issues by appellant’s counsel. Issue 2 is distilled from ground 2 which is a complaint against a remark by the learned trial Judge in the introductory part of His Lordship’s judgment (in fact in paragraph 1 thereof). It does not by any stretch of imagination form a ratio decidendum of the judgment. It is at best a mere passing or prefatory remark which can not be the subject of an appeal. At the best it is an obiter dictum and no ground of appeal can be used to attack it. See Ede V Omeke (1992) 5 NWLR (Pt. 242) 428 and All Progressives Congress V Peoples Democratic Party (2015) 15 NWLR (Pt. 1481) 1, 63. Ground 2 is therefore not a valid ground of appeal. I accordingly strike the same out along with issue 2 distilled from it.

It is also obvious that issues 4 and 5 amount to a proliferation of issues. This is because issue 4 is derived from ground 4 and issue 5.

Ground 4 is the common denominator in the two issues. One ground can not be split into two issues as has been done in this instance. The law frowns at proliferation of issues. Where there is proliferation of issues the Court may re – formulate the issue/s or strike the proliferated issue out, depending on the circumstances of the matter. See Agbetoba V LSEC (1991) 4 NWLR (Pt. 188) 664, 681 ? 682, A. International Ltd V S.K. International Enterprises Ltd (2010) 13 NWLR (Pt. 1211) 270, 288 ? 289, United Parcel Service Ltd V Ufot (2006) All FWLR (Pt. 314) 337, 354, Adeyemi V State (2014) 13 NWLR (Pt. 1423) 132, 152, Salim V CPC (2013) 6 NWLR (Pt. 1351) 501, 516 and Okponipere V State (2013) 10 NWLR (Pt. 1363) 209, 220.

The Court is entitled to reframe or reformulate issues for determination of an appeal for the purpose of narrowing down the issue/s in controversy in the interest of clarity and brevity. Having looked at the remaining grounds of appeal and the issues formulated by appellant’s counsel, it is my view that a single issue will cover the complaints in the said grounds of appeal. The issue is:

Was the trial Court right in dismissing appellant’s claim?

In his argument, appellant’s counsel stated that Exhibit B2 contains the respondent’s loudest acknowledgment or admission of appellant?s claim. He noted that the evidence of the appellant remained unchallenged and uncontroverted as the respondent rested its case on that of the appellant. The implication, he contended, is that it accepted the case of the appellant and so the fate of the case hangs on the pleadings and evidence of appellant. He cited in support of his position several cases including Oduwole V West (2010) 10 NWLR (Pt. 1213) 598. He stressed that where a party acknowledges his indebtedness to another in writing, such a party is bound by the content of the letter and liable therefor. He called in aid Ifeanyichukwu T.I.V Ltd V O.C.B. Ltd (2015) 17 NWLR (Pt. 1487) 1.

Counsel submitted that a Court must not reach a position or conclusion not predicated on the case of the parties otherwise the other party would suffer a denial of fair hearing. He noted that Exhibit B2 was tendered and admitted without objection, and without any contention by the respondent that its General Manager perpetrated some fraud, connivance or mischief against it. He posited that it was therefore wrong to hold that the document was a mischief between the agents of the respondent and the appellant to prepare the ground for the suit before it. He tagged the trial Court’s position as speculation and contended that it amounted to the trial Court making a case for the respondent which it did not make.

Counsel argued that Exhibit B2 was critical to the interpretation of the Exhibit B1 (the investment agreement). This, he said, is because the Court can rely upon extraneous documents in appropriate cases to discover the exact intendment of the parties to a written contract as to the terms upon which they have agreed to be bound. He invoked in support of his stance the case of MTN (Nig) Communication Ltd V C.C. Investment Ltd (2005) 7 NWLR (Pt. 1459) 437. He posited that Exhibit B2 is therefore a vital document in discerning the intention of the parties in the event of the principal sum not being paid within 60 days, viz; that the interest would still be running thereon. This, he stated, resolves the ambiguity in the agreement as to what would happen regarding interest where the principal sum remains unpaid after 60 days.

Counsel proceeded to submit that the trial Court was in error in holding that the remedy in Exhibit B1 for appellant was to proceed against the General Manager of the respondent as provided for in paragraph 7 of the agreement. This, he submitted further, is because in law contracts entered into by a company are binding on and enforceable only by the company; and consequently individual members of the company, its directors and principal members thereof are not bound thereby. He also invoked the doctrine of privity of contract to strengthen his stance. In aid, he cited several cases including Okoli v Morecab Finance (Nig) Ltd (2007) 4 NWLR (Pt. 1053) 37. He then submitted that the appellant was not left without a remedy in the face of unenforceability of paragraph 7 of the investment agreement against the Managing Director of the respondent.

I have already stated that the respondent did not file a brief of argument. The implication is that it is deemed to have conceded the submissions of appellant’s counsel. Nevertheless, I am still obliged to consider the merits of the arguments and I proceed to do so hereunder.

The case of the appellant was founded in the main on:
(i) the oral testimony of PW1; and
(ii) the documents tendered in evidence, namely;
(a) the investment agreement – Exhibit B1;
(b) respondent’s letter of 18/11/2011 in which the respondent admitted owing the sum of N16,500,000:00 as balance of interest due and payable – Exhibit B2;
(c) appellant’s letter of demand for payment – Exhibit B3; and
(d) extract of the respondent’s management meeting of 10/2/2011.
Exhibit B.

I have already stated that the respondent did not testify; rather it rested its case on that of the appellant. What is the implication of that choice. The defendant is deemed to have accepted the case of the plaintiff lock, stock and barred. Again, minimum evidence is required to prove the case by the plaintiff. See Imana v Robinson (1979) 3-4 SC 1, Ezeanah v Attah (2004) 7 NWLR (Pt. 873) 468, Oduwole v West (2010) 10 NWLR (Pt. 1213) 598 and Nwabuoku v Ottih (1961) 2 SCNLR 232.

In the case of Newbreed Organiation Ltd v Erhomosele (2006) LPELR – 1984 (SC) 26 Mukhtar, JSC (as he then was) opined as follows:

‘When a defendant refuses to adduce evidence in his defence and rests his case on the evidence of the plaintiff, then he has himself to blame if the trial Court finds for the plaintiff based on his evidence as was done in the instant case. The position of the law is that where an adversary fails to adduce evidence to put on the other side of the imaginary scale of justice, a minimum evidence adduced by the other side would suffice to prove its case.’

In his contribution Ogbuagu, JSC at pages 53 – 54, referred with approval to the case of NEPA v Olagunju (2005) 3 NWLR (Pt. 913) 602, 632 where it was stated that the implication where a defendant rests his case on that of the plaintiff may mean:

(a) that the defendant is stating that the plaintiff has not made out any case for the defendant to respond to, or

(b) that he admits the facts of the case as stated by the plaintiff; or

It can be safely said that from what has been stated so far, the fact that plaintiff’s evidence is unchallenged, will not automatically result in his success. The Court still has a bounden and sacred duty to evaluate his evidence and satisfy itself that the evidence is credible and sufficient to sustain the claim. See Yakubu v Ministry Works and Transport, Adamawa State (2006) 10 NWLR (Pt. 989) 513, 547.

Appellant’s counsel relied heavily on Exhibit B2 as an admission of the indebtedness and extraneous evidence to decipher the intention of the parties to the investment agreement, Exhibit B1. The letter was written by the respondent to the appellant and it was signed by the General Manager and Finance Manager of the respondent Paragraph 3 of the letter reads:

Recall that the accumulated interest on the Investment Sum rose to N22,500,000:00 as at 11th August, 2011. Out of this sum, we have variously paid the sum of N6, 250,000:00 leaving an interest balance of N16, 250,000:00. All together, the company is indebted to you in the sum of N31, 250, 000:00 if you add the principal sum of N15million.

The trial Court considered the above admission in the light of the terms of the investment agreement and held at page 158 of the judgment as follows:

‘A settled reading of Exhibit B1 and Exhibit B2 reveals a gross misunderstanding of the tenure of the former by the human agents of the defendant who authored the latter. The interpretation that the writers of Exhibit B2 have made of the clear terms of Exhibit B1 can certainly not be a responsible one; it rather smacks of mischief to prepare the grounds for the instant litigation for reasons known to only the plaintiff and the authors of the document. Even a cursory reader of the Exhibit B1 should be able to discern that paragraphs 1, 2 and 4 of the documents read either separately or together, unequivocally limited the tenure of the investment contract between the parties to 60 days of the receipt of the sum invested. The reader should also be able to discern that paragraph 7 of the same document provides, again in unequivocal terms, the remedy that the plaintiff should be entitled to in the event that the defendant failed to honour its own obligation to redeem the sum invested together with the interest thereon of the expiry of the tenure of the contract. The anticipated remedy does not include any of the reliefs that this suit has been constituted to seek against the defendant. In fact paragraphs 8 and 10 of the statement of claim read together show that the defendant has already paid the sum invested and interest thereon to the plaintiff. It is hard to see what again remains of the contract to warrant this suit. Exhibit B2, being a unilateral document, is not admissible to add to, vary, subtract from or contradict the clear and unambiguous terms of Exhibit B1. The notion of accrual of interest is perpetuity that underscores the instant suit is extraneous to, and a misreading of, Exhibit B1.’

Appellant’s counsel is unhappy with the above reasoning of the learned trial judge, and that is putting it mildly. Was the trial Court right?

The law is settled that where parties have embodied the terms of their contract in a written document, extrinsic evidence is not allowed to add to, vary, subtract from or contradict the terms of the written instrument. Again, where there is any disagreement between the parties to a written agreement on any point, the authoritative or legal source of information for the purpose of resolving the disagreement or dispute is the written contract executed between the parties. See Christaben Groups Ltd v Oni (2008) 11 NWLR (Pt. 1097) 84, 111 or (2008) LPELR ? 5157, Union Bank (Nig) Ltd v Ozigi (1994) 3 NWLR Pt. 333) 385, Agbareh v Mimra (2008) All FWLR (Pt. 409) 559 and BFI Group Corporation v BPE (2012) 18 NWLR (Pt. 1332) 209.

The reason is that a Court of law must always respect the sanctity of agreements reached by parties and therefore cannot make a contract for them or re-write the one already made.

I shall therefore take the liberty to set out the relevant clauses of the investment agreement (Exhibit B1). They are Clauses 1, 2, 4, 5 and 7. I hereunder set them out:

1. The Investment shall be redeemable by the Company within a period of 60 (Sixty) days by way of 2 (two) cheques drawn on the company?s accounts, in the sum of N3,750, 000:00 (Three Million Seven Hundred and Fifty (sic) Naira) only payable 30 (thirty) days from commencement and in the sum of N18, 750,000:00 (Eighteen Million Seven Hundred and Fifty (sic) Naira) only payable on maturity of the investment.

2. The Company shall pay interest on the investment at the rate of Twenty Five Per cent (25%) monthly on the investment amount, which shall be redeemable by the Company within a period of 60 (Sixty) days by way of 2 (two) cheques for the amounts agreed above drawn on the Company’s accounts.

4. The investment shall be for a period of 60 (Sixty) days only.

5. The Company undertakes to submit to the investor the under listed documents:

(a) The original title document (s) to 2 (two) developed properties in the name of the Company’s Managing Director within the Makurdi area as security for the investment on the date the cheque for the investment is collected;

(b) (not relevant)

(c) Written Personal Guarantee of the Company’s Managing Director to ensure repayment of the investment capital and interest.

7. In the event of failure by the Company to fulfil her obligations in respect of redeeming the investment, there shall be considered to have been a change of ownership of the properties from the Managing Director of the Company to the Investor within two (2) weeks of the investment due date. Should the value of the property at the time be less than the amount outstanding, the investor shall be entitled to receive such difference from the Company.

It is clear from clauses 1, 2, 4, 5(a) and (c) and 7 that what was agreed between the parties was payment of 25% interest per month on the investment sum for the agreed tenure of the investment, namely; 60 days. The agreement is silent on payment of interest of 25% after 60 days in the event of failure to pay back the investment sum as agreed. It is on this account that appellant’s counsel has had recourse to Exhibit B2 as an admission of liability to pay interest amounting to N16,250, 000:00 and as being critical to the interpretation of the investment agreement.

On the last point, I respectfully disagree with appellant’s counsel. To agree with learned counsel will amount to using extrinsic evidence to add to the terms of a written agreement.

Be it noted that extrinsic evidence includes documents. See Union Bank (Nig) Ltd. v Ozigi supra.
In Union Bank of Nigeria. Plc v Nwaokolo (1995) 6 NWLR (Pt. 400) 127, 142, referred to by the learned trial Judge in His Lordship’s judgment, Onu, JSC, re – stated the law as follows:

it is settled that in construing a document, reference can not be made to previous negotiations, nor can the words of the written agreement be affected by the conduct of the parties before or after execution of the agreement. Indeed, it is an established canon of interpretation that the instrument must be construed as at the time of its execution and nothing more

So also in Ogundepo v Olumesan (2011) LPELR ? 1297 (SC) 17, Fabiyi, JSC, opined thus:

I need to still point out at this stage that it is not the business of a Court to re-write parties? contract for them. The duty of the Court is to interpret the contract as contained in the instrument made by the parties on their own volition. A Court of record should never accede to the importation of unrelated ‘grey’ areas of the law by a party to prop what is not contained in the instrument made by the parties.

It is therefore my view that Exhibit B2 can not be used to interpret the terms of Exhibit B1 as canvassed by appellant?s counsel as that would result in using extrinsic evidence to add to the terms thereof. The case of MTN (Nig) Communications Ltd v CC. Inv. Ltd supra cited by appellant?s counsel to buttress his position is of no relevance in this matter. That case dealt with using extrinsic evidence to show that a contract signed by only one party was binding on the other party.

The proviso to Section 128(1) of the Evidence Act, 2011 does not also help the appellant as to hold otherwise would amount to completely neutralizing the general provision of Section 128(1). See Fortune International Bank Plc v Pegasus Trading Office (GMBH) (2004) 4 NWLR (Pt. 863) 369.

As regards the point on Exhibit B2 amounting to an admission, I agree with appellant?s counsel that a party is bound by what he has admitted. Nevertheless, a close look at Exhibit B2 including the part already quoted in this judgment shows that it presumes wrongly that it was a term of the contract that interest on the investment sum at 25% per annum would continue to run beyond the period of 60 days, the period of the investment. I have already said that there is no such term in the agreement.

A Court of law can not be influenced or misled by a party?s or the parties? misunderstanding or misinterpretation of their written agreement to read into the agreement terms which are not there. In Odutola v Papersack (Nig) Ltd (2006) LPELR ? 2259 (SC) 28 ? 29, Tobi JSC, in resolving whether a Court of law can construe an agreement to convey the meaning as ?understood? by the parties, stated:

‘The most important and pugnant word for my purpose is ‘understood.’ Parties to an agreement may mutually but wrongly come to an understanding as to the legal content of it. That notwithstanding, a Court of law can only interprete the agreement strictly in its real content and arrive at a conclusion on the law and law alone in respect of it. A Court of law can not construe the agreement to convey the meaning ‘as understood’ by the parties, if it is different from the real legal meaning of the agreement.’

At page 29, His Lordship laid out the law which directly impacts on this matter as follows:

‘An admission against interest, in order to be valid in favour of the adverse party, must not only vindicate or reflect the material evidence before the Court; it must also vindicate and reflect the legal position. Where an admission against interest does not vindicate or reflect the legal position, it will be regarded for all intents and purposes as superfluous. And a Court of law is entitled not to assign any probative value to it. See also WEMA Bank Plc v Osilaru (2008) 10 NWLR (Pt. 1094) 150, 177.

The above position of the law is the fate of Exhibit B2 relied upon by appellant’s counsel. The learned trial Judge was therefore right in not giving weight to it.

It should be stated that there may have been equitable remedies for the appellant but he did not claim on that basis.

It is perhaps necessary for me to state that the trial Court’s remark that Exhibit B2 smacks of mischief to prepare the grounds for the litigation is speculative as it is not based on any evidence.

I therefore discountenance it. It is however my view that it is an error that has not occasioned a miscarriage of justice.

Again, the trial Court was not right in holding that clause 7 of the contract provides the remedy for any anticipated breach. As rightly argued by appellant?s counsel, the clause anticipated a guarantee by the Managing Director. See Clause 5 (a) and (b) thereof. In the absence of such guarantee agreement, the Managing Director of the respondent can not be held liable under Exhibit B1 to which he is not a party. By the doctrine of privity of contract, only a party to a contract can sue or be sued on it. It can not be enforced by or against a non ? party even if it is made for his benefit and purports to give him the right to sue or make him liable upon it. See Ikpeazu v ACB Ltd. (1965) 1 NMLR 347 and Okoli v Morecab Finance Ltd supra. However, the error did not occasion a miscarriage of justice and so it can not result in the reversal of the judgment

In spite of the two hiccups highlighted above in the judgment, it is my view that the judgment of the trial Court on the whole can not be faulted.

I therefore enter an affirmative answer to the lone issue for determination and resolve it against the appellant. On whole, the appeal is without merit. I accordingly dismiss it and affirm the judgment of the trial
The parties shall bear their costs.

JOSEPH TINE TUR, J.C.A.: I have read the ‘judgment’ of my learned brother, Ekanem, JCA. I am entitled to render my ‘opinion’ or ‘decision’ as provided in Section 294(2)-(3) of the Constitution of the Federal Republic of Nigeria, 1999 as altered. The provisions provides as follows:-

294(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion:

Provided that it shall not be necessary for the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.

(3) A decision of a Court consisting of more than one Judge shall be determined by the opinion of the majority of its members.
Section 318(1) of the Constitution defines a ‘decision’ in the following manner:-
(1) In this Constitution, unless it is otherwise expressly provided or the con otherwise requires:-
‘Decision’ means, in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.
The definition of a ?decision? is confined or restricted to the provisions of the Constitution of the Federal Republic of Nigeria, 1999 as altered with the use of the phrase ?In this Constitution
But the Court of Appeal will not use the dictionary meaning of the word ?decision? but that which is defined Section 318(1) of the Constitution because of the provisions of Section 318(1) of the Constitution which reads as follows:-
?(1) In this Constitution, unless it is otherwise expressly provided or the con otherwise requires:-

?Decision? means, in relation to a Court, any determination of that Court and includes judgment, decree,order, conviction, sentence or recommendation.

In Kalu vs. Odili (1992) 6 SCNJ (Pt.1) 76, Karibi-Whyte, JSC held at page 119 that:

It is a well-established principle of construction of statutes, and indeed the Constitution, that where the definition section, therein has defined a particular word or expression, the meaning so given to the word, unless the con otherwise requires, shall be used throughout the statute. See Ejoh vs. I.G.P. (1963) 1 All NLR 250.

The principle of interpretation of words in a statute was re-affirmed inAbioye vs. Yakubu (2001) FWLR (Pt.83) 2212, Karibi-Whyte, JSC again held at page 2325 paragraph ?E? that:

‘Where the words of a situate (sic) are clear and unambiguous, they should be given their plain ordinary grammatical meaning. See Lawal vs. G.B. Ollivant (1972) 2 SC 124; Aya vs. Henshaw (1972) 5 SC 87. However, where the word to be construed has been assigned a meaning in the definition Section of the statute the intention of the law maker is that the meaning so assigned is to be given to that word in that statute, unless the subject or con renders the meaning repugnant. See Apampa vs. The State (1982) 6 SC 47; Ejoh vs. I.G.P. (1963) 1 All NLR 250; (1963) 2 SCNLR 102.’

The Courts are enjoined to use the definition section of the Constitution, an Act of the National Assembly, a Law of a State Assembly or Rules of Practice and Procedure but to resort to the provisions of the Interpretation Act, Cap.123 or dictionaries as a last resort. See Oyeyemi vs. Commissioner for Local Government, Kwara State (1992) 2 SCNJ (Pt.2) 266 at pages 279-280.

A Court of Justice is to embark on the construction of the provisions of the Constitution, a statute or Rules of Practice and Procedure that are currently in operation but not to blindly follow the words or phrases in previous legislation so held Brett, JSC inOdu Vs. The State (1965) NMLR 129 at page 131 last paragraph to wit:-

‘As regards the specimen signature card and the paying-in slip, the trial Judge held that they ?came within the principle of the cases in which it has been held that the use of a pretended name of a fictitious person amounts to forgery’, and he referred to the case of Anne Lewis (1) having previously entered into a lengthy examination of what constitutes forgery at common law. With respect, we think that the most profitable approach to the interpretation of the Criminal Code is to begin by examining the words of the Code itself, and that decisions on the common law are only of value where the wording of the Code is obscure or capable of bearing more than one meaning, when they may be referred to for the purpose of ascertaining the sense in which words are used in the Code.”

In Letang Vs. Cooper (1964) 2 ALL E.R. 929 reported in ‘Case Book on Tort’, 3rd edition by Tony Weir, Lord Denning, M.R., bemoaned a situation where legal practitioners went ?back to the old forms of action in order to construe this statutes? holding at page 265-267 as follows:

I must decline, therefore, to go back to the old forms of action in order to construe this statute. I know that in the last century Maitland said ?the forms of action we have buried, but they still rule us from their graves. (see Maitland, Forms of Action (1909) p. 296), but we have in this century shaken off their trammels. These forms of action have served their day. They did at one time form a guide to substantive right, but they do so no longer. Lord Atkin, in United Australia Ltd. Vs. Barclays Bank Ltd. (1941) AC 1, 29) told us what to do about them: when these ghosts of the past stand in the path of justice clanking their mediaeval chains the proper course for the judge is to pass through them undeterred..

So we come back to construe the words of the statute with reference to the law of this century and not of past centuries. So construed, they are perfectly intelligible

In Nwobodo vs. Onoh (1984) 1 All NLR 1, Bello, JSC (as he then was) held at page 13 as follows:-

I think, I may end this part of my judgment with this observation. In the application of the provisions of a statute to a particular case, a Court should not blindly adhere to the ratio decidendi of a previous case founded on the interpretation of a former statute without having first carefully examined that statute and meticulously compared it with the statute governing the case for determination by the Court in order to ascertain whether the two statutes are in pari material. It is only when the two statutes are similar and identical that the interpretation placed on one can be a precedent to the interpretation of the other.”

I shall err on the side of those who enacted the Constitution of the Federal Republic of Nigeria, 1999 as altered in heading the ?determination? of the matters in dispute a ?decision?. I could have titled same as an ?opinion? by virtue of the provisions of Section 294(2)-(3) and 318(1) of the Constitution. A ‘determination? has been judicially explained by the Supreme Court in Deduwa vs. Okorodudu (1976) 1 NMLR 236 per Alexander, C.J.N at pages 243-244 to wit:-

‘More light is thrown on the meaning of the words ?decision? and determination? in the case of the Automatic Telephone and Electric Co. Ltd. vs. The Federal Military Government of the Republic of Nigeria (1968) 1 All NLR 429 where Ademola, CJN in giving the ruling of the Court said at page 432: ?We have been referred to the Shorter Oxford Dictionary for the

meaning of determination. It means ?a bringing or coming to an end? or (the mental action of coming to a decision,? or ?the resolving of a question?).
In Oaten vs. Auty (1919) 2 K.B. 278, Bray, J., at page 284 interprets the word ?determine? as meaning ?make an end of the matter.? In our own experience in this (Supreme Court), we send a matter back to the High Court for a rehearing and determination; the word ?determination? therein meaning ?ending of the matter.”
In Baba vs. Civil Aviation (1991) 6 SCNJ 1, Karibi-Whyte, JSC held at page 25 that:-
?The term determination in this con means reaching a decision. Where, as in this case, the body is merely exploring or investigating the facts with no intention or power to decide, there is, in my view, no determination. So, contrary to the submission of learned Counsel for the appellant, the question of fair hearing in terms of Section 33(1) of the Constitution, 1979 did not arise under the Affini Panel.?
But a ?judgment? may not put an end or terminate a controversy or dispute.

But generally speaking, a ?judgment? is defined in Black?s Law Dictionary, 9th edition, page 918 as:-
A Court?s final determination of the rights and obligations of the parties in a case. The term judgment include an equitable decree and any order from which an appeal lies. Fed. R. Civ. P.54. ? Also spelled (especially in BrE) judgment. ? Abbr. J. ? Also termed (historically) judgment ex cathedra. Cf. Ruling (1); Opinion (1)? 2. English law. An opinion delivered by a member of the appellate committee of the House of Lords; a Law Lord?s judicial opinion. – Also termed (in sense 2) speech.
?An action is instituted for the enforcement of a right or the redress of an injury. Hence a judgment, as the culmination of the action declares the existence of the right, recognizes the commission of the injury, or negatives the allegation of one or the other. But as no right can exist without a correlative duty, nor any invasion of it without a corresponding obligation to make amends, the judgment necessarily affirms, or else denies, that such a duty or such a liability rests upon the

person against whom the aid of the law is invoked.? 1 Henry Campbell Black, A Treatise on the Law of Judgments, paragraph 1, at 2 (2nd edition, 1902).?
In Chief Andrew Thomas vs. Local Government Service Board (1965) NMLR 310, Brett, JSC held at page 315 that, ?The greater includes the less A ?judgment? is included in the definition of a ?decision? under Section 318(1) of the Constitution for a definite purpose. The legislative intention under Section 318(1) of the Constitution is that, ?In this Constitution unless it is otherwise expressly? provided or the con otherwise requires? a ?decision? means in relation to a Court, any determination etc. ?Any determination? is a ?decision? within the contemplation of Section 318(1) of the Constitution. The learned authors of Black?s Law Dictionary, 9th edition defines a ?decision?, ?appealable decision? and ?final decision? at page 467 to wit:-

?Decision – 1. A judicial or agency determination after consideration of the facts and the law; especially a ruling, order, or judgment pronounced by a Court when considering or disposing of a case. SEE JUDGMENT (1); OPINION (1). ? decisional.
?Appealable decision ? A decree or order that is sufficiently final to receive appellate review (such as an order granting summary judgment), or an interlocutory decree or order that is immediately appealable, usually by statute (such as an order denying immunity to a police officer in a civil-rights suit). ? Also termed reviewable issue. See COLLATERAL-ORDER DOCTRINE.
?Final decision ? See final judgment under JUDGMENT.?
Sheila Bone, Osborn?s Concise Law Dictionary, 12th edition defines the word ?determine? at page 144 as follows:-
?Determine ? (1) To come to an end; (2) To decide an issue or appeal.?
Section 294(2)-(3) of the Constitution of the Federal Republic of Nigeria, 1999 as altered is the authority which enables a Justice of the Court of Appeal to adopt the ?decision? or ?opinion? of another learned colleague. The decision of the majority of the Justices will be

regarded as the mind of the Court. I wish to also draw attention to the provisions of Sections 36(1) and 294(1) of the Constitution which provides as follows:-
?36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.
xxxx
294(1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.?
The condition for rendering a ?decision? within ninety days after the submission of final addresses in Section 294(1) of the Constitution, that is in ?putting an end? or ?terminating? a dispute or controversy are not in Section

294(2)-(3) of the Constitution. Appeals are not argued in the Court of Appeal on evidence or final addresses but on briefs supported by the record of appeal. See Order 19 rules 1-11 of the Court of Appeal Rules, 2016. A record of appeal is defined in Order 1 Rule 5 of the Rules as follows:-
?Record? means the aggregate of papers relating to an appeal including the pleadings, proceedings, evidence and judgments proper to be laid before the Court on the hearing of the appeal.?
A violation of the provisions of Section 294(1) is remedied under Section 294(5)-(6) of the Constitution which provides as follows:-
?(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this Section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.
(6) As soon as possible after hearing and deciding any case in which it has been determined or observed that there was non-compliance

with the provisions of Subsection (1) of this section, the person presiding at the sitting of the Court shall send a report on the case to the Chairman of the National Judicial Council who shall keep the Council informed of such action as the Council may deem fit.?
The provisions of Section 294(5)-(6) of the Constitution are to be read with Order 4 Rule 9(1)-(3) of the Court of Appeal Rules, 2016 to wit:-
?9(1) On the hearing of any appeal, the Court may, if it thinks fit, make any such Order(s) as could be made in pursuance of an application for a new trial or to set aside a verdict, finding or judgment of the Court below.
(2) The Court shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court some substantial wrong or miscarriage of justice has been thereby occasioned.?
(3) A new trial may be ordered on any question without interfering with the finding or decision on any other question; and if it appears to the Court that any such wrong or miscarriage of justice as

is mentioned in Sub-rule (2) of this Rules affects part only of the matter in controversy or one or some only of the parties, the Court may order a new trial as to the party only, or as to that party or those parties only, and give final judgment as to the remainder.?
This is the purport of the ?Blue Pencil Rule.? Applying the ?Blue Pencil Rule? the appellant or the respondent may be entitled to a ?final judgment? or ?final decision? of the Court of Appeal having regard to the admissible evidence in the record of appeals. See Ezekpelechi vs. Ugoji (1991) 7 SCNJ (2) 196 at 258; Onifade vs. Olayiwola (1990) 11 SCNJ 10/22; Onojobi vs. Olanipekun (1985) 4 SC (pt. 2) 156 at 163; Ugo vs. Obiekwe (1989) 2 SCNJ 95 at 103-104 or (1989) 1 NWLR (pt. 99) 566 and Adejumo vs. Ayantegbe (1989) 3 NWLR 417 at 430.
A ?final judgment? is not defined in Section 318(1) of the Constitution but in Black?s Law Dictionary (ante) page 919 the phrase is defined as:-
A Court?s last action that settles the rights of the parties and disposes of all issues in controversy, except

for the award of costs (and, sometimes, attorney?s fees) and enforcement of the judgment. ? Also termed final appealable judgment; final decision; final decree; definitive judgment; determinative judgment; final appealable order. SEE FINAL JUDGMENT RULE
My humble opinion is that in all cases where practicable, the decision of the Court of Appeal shall be a ?final judgment? within the contemplation of Order 4 Rule 9(3) of the Court of Appeal Rules, 2016. I shall refer to the following authorities which defines what is a ?final? or ?interlocutory? decision or judgment. See Ebokam vs. Ekwenibe (1999) 7 SC (Pt.1) 77; Blay vs. Solomon (1947) 12 WACA 175; The Automatic Telephone & Electricity Co. vs. Federal Military Government of the Federal Republic of Nigeria (1968) 1 All NLR 428.
The striking out of an appeal does not constitute a ?final decision? or a ?final judgment? or a ?final order? within the provisions of Order 4 Rule 9(3) of the Court of Appeal Rules, 2016. See Ogbechie & Ors. vs. Onochie & Ors. (1988) 2 SCNJ (Pt.1) 170 at 194.

I shall consider this appeal on the merit. Where the relationship between the parties is governed by written agreements the Court has to resort to their terms to know what the parties had appended their respective signatures with date and to see whether the claims of the plaintiff and defendant can be supported with the documentary exhibits. In Ihezukwu vs. University of Jos (1990) 7 SCNJ 95 the Supreme Court held at pages 103-104 to wit:-
?In the instant case, Exhibit 1 save for providing that the respondents can terminate the appellant?s employment on giving him 3 months? notice or payment of 3 months? salary in lieu, it is silent as regards the circumstances in which the power can be exercised. In my view, it can reasonably be implied as a term of the contract that the power to terminate the appointment of the appellant by the respondents can be exercised on grounds of say, ill-health, incompetence, misconduct, dishonesty, exigencies of service or such other similar grounds. The mere fact that the appellant was given a probationary appointment for two years, does not mean and nor could it be implied that his

appointment cannot be lawfully terminated within the probationary period on reasonable notice ? see Ward. Vs. Barclay Perkins and Co. Ltd. (1939) 1 ALL E.R. 287 and Para. 3606 of Vol. II ? Chitty on Contract (24th Edition).
The essence of a probationary appointment is that the employer retains the right not to confirm the appointment until after a specified period. Where the contract of employment provides that the appointment is subject to a probationary period of a certain length of time, this does not given the employee a legal right to be employed for that length of time and the employer may lawfully dismiss him before the expiry of that period.
Where there is a notice of dismissal or termination of appointment of an employee by the employer, it is not necessary for the employer to prove the reasons stated in the notice. The only obligation on him is to show that the contract was terminated in accordance with the express or implied terms of the contract regardless of whether the appointment is on permanent or probationary (temporary) basis.

It is therefore my conclusion that both the trial Court and the Court of Appeal were right when they refused to reinstate the appellant. The normal measure of damages recoverable by an employee whose contract has been wrongly terminated is the amount he would have earned under the contract for the period until the employer could have lawfully terminated it, less any amount he could reasonably be expected to earn in other employment. But where the employer has a right to terminate the contract before the expiry of the term (as in the instant case) damages should be assessed only up to the earliest time at which the employer could validly have terminated the contract ? see British Guiana Credit Corporation Vs. Da Silva (1965) 1 WLR 248 and also para. 3636 of Chitty on Contract, Vol. II (24th edition).
In my view, the termination of the appointment of the appellant by payment of one months? salary in lieu of notice was not in consonance with Exhibit 1. This would not however entitle him to be reinstated when the appointment was basically temporary i.e. it was on probation for two years. He was however entitled to three months? salary in lieu of proper notice as provided in Exhibit 1. In that regard, I endorse the conclusion of Agbaje, JCA (as he then was) that:-

the appellant?s case will have to be decided according to the terms of the contract between him and the respondents. Exhibit 1 contains the terms of the contract between the appellant and the respondents, including the mode of terminating the appointment. It appears to be common ground in this case that, according to the terms of the agreement between the appellant and the respondents, the respondents could validly terminate his appointment by giving the appellant three months? notice of the termination of that appointment or in lieu thereof, three months? salary.”
The appeal fails and it is dismissed. The judgment of the Court of Appeal is affirmed.”
In Mandilas Karaberis Ltd. vs. Otokiti (1963) 1 All NLR 22, Bairamian, F.J. held at page 26 that: When a contract is reduced into writing, the writing gives the terms agreed upon?.? In NIDB vs. Olalomi Industries Ltd. (2002) 5 NWLR (Pt.761) 532, page 555 paragraphs ?G? appears the following statements:-

a document speaks for itself and that oral testimony is inadmissible to vary, add to or take away from the contents of the documents.?
In Owoniboys Technical Services Ltd. vs. UBN Plc (2003) FWLR (Pt.180) 1529, Ejiwunmi, JSC set out at page 1552 paragraphs ?A?-?D? the approach a learned Judge has to adopt in interpreting series of exhibits that define the contractual relationship binding the parties as follows:
?The next point that now falls to be considered is that raised in issue 5. It is the submission of learned Counsel for the appellant that the only universal custom of bankers is that a bank only has the right to charge simple interest and that this can only be varied by agreement of the parties. In support of that submission, the made reference to Corsskill vs. Bower, Bower Turner (1863) 32 L.J. Ch. 540 at 544. And then went on to argue that the onus of proving that the respondent has the unqualified right to charge ?any prevailing? interest (sic). And further submits that as the evidence led by the respondent in this regard is unreliable and was

deservedly rejected by the trial Court, there exists no basis upon which the respondent could have resisted the appellant?s claim. For the resolution of the question raised by this issue, recourse must be had to Exhibit ?4D1? and ?5? and mortgage deeds which no doubt formed the basis of the loan and overdraft facilities entered into by the parties. Now, if the parties have agreed between themselves upon the conditions for the formation of a contract, and as in this case those conditions were embodies in documents as in Exhibits ?4D1? and ?5?, then they are bound by the terms and conditions set down in the documents, and which was duly executed as was done in this case. Having so bound themselves, it is not the function of the Court to make a contract for the parties. See Oyenuga vs. Provisional Council of the University of Ife (1965) NMLR 9.?
In Living Faith Church, Otukpo vs. Adole (2005) All FWLR (Pt. 276) 784 the Supreme Court held at page 798-799 that:-
?It is now firmly established that in the construction of documents, the question is not what the parties to the document may have intended

to do by entering into the document, but what is the meaning of the words used in the document. Thus, direct evidence is inadmissible, to construe the language of a document. The case of Alhaji Awwal Ibrahim Vs. Galadima Shaibu Barde (1996) 12 SCNJ 1 at 38 cited and relied on at page 4 of the respondent?s brief relate to the interpretation of statutes.
I agree with the learned counsel for the appellant as this is also settled, that once a written agreement on a matter exists, in the event of any disagreement between the parties as to the terms of the agreement the authoritative and legal source of information for the purpose of resolving the dispute, is the written agreement executed by the parties. He has citied and relied on the cases of Union Bank of Nig. Ltd. Vs. Sax (Nig) Ltd. & 2 Ors. (1994) 9 SCNJ 1 at 12 ? per Adio JSC (of blessed memory) and Mrs. Layade Vs. Panalpina World Transport Nig. Ltd. (1996) 7 SCNJ 1 at 14-15. See also Alhaji Abdullahi Baba Vs. Nigerian Civil Aviation Training Centre & Anor (infra).
It is also settled that a Court cannot write a new contract for the parties.

See Aouad Vs. Kessrawani (1956) SCNLR 83, (1956) 1 FSC 35 and Fakorede & Ors. Vs. Att.-Gen., of Western State (1972) 1 ALL NLR (pt. 1) 178 & 189. This is why it is also settled, that parol evidence, cannot be led to contradict a document that is clear and unambiguous. In other words, extrinsic evidence, is basically inadmissible. See Okpanku Vs. Amachi (1956-84) SCNJ 75. To add to or alter the contents of a document, where for instance, parol agreement has been reduced into writing, the best evidence, is the production of the document itself. See NEPA Vs. Elfandi (1986) 3 NWLR (pt. 32) 884 and Da Rocha Vs. Hussain (supra). Also the only situation when oral evidence is permissible in law, is under Section 132(1)(b) of the Evidence Act. Happily, the learned counsel for the respondent, concedes this fact at page 3 of his brief, citing and relying on the cases of Chief Young Jack & 2 Ors. Vs. Chief Whyte & 5 Ors. (2001) 85 LRCN 845 at 860 (it is also reported in (2001) 3 SCNJ 55 and (2001) 6 NWLR (pt. 709) 266 at 277, 284) and Att.-Gen., Oyo State & Anor. Vs. Fairlakes Hotels Nig. Ltd. & Anor. (1989) 5 NWLR (pt. 121) 255.

I wish to point out that the proviso in Section 132(1) of the Evidence Act, allows oral or extrinsic evidence to be given, to prove illegality, want of consideration or any other matter, which if proved, will produce any effect upon the validity of the document or any part of it. There is nothing from the records, to suggest in my respectful view, any illegality or want of consideration in respect of Exhibit ?A?.
Indeed, in the case of Niger/Benue Transport Co. Ltd. Vs. Narumal & Sons Nig. Ltd. (1986) 4 NWLR (pt. 33) 117 at 129 CA, it was held that in the absence of fraud, or misrepresentation, the party who signs an agreement, is bound by it and in such a case, the duty of the Court is merely to construe the provisions of the agreement so as to discover the parties? intention. In other words, the words in the agreement should first be given the simple and ordinary meaning and under no circumstance, may new and additional words be imported into the , unless the document would be by the absence of that which is imported, impossible to understand. See Solicitor-General, Western Nigeria Vs. Adebonojo (1971) 1 ANLR 178 (supra).”

In G. Chitex Industries Ltd. vs. Oceanic Bank International Nigeria Ltd. (2005) All FWLR (Pt. 276) 610 the Supreme Court held at page 623 paragraphs ?D?-?G? that:-
Exhibit ?H? which was offered as proof of the loss of N3.5 million is not an authentic document to entitle the appellant to claim such damages. Where a document is challenged and impugned as unauthentic, the maker of the document should be called to support the document, otherwise no weight should be attached to it. Where such damages are suffered and claimed in an action for breach of contract, there must be convincing evidence to prove the damages.?
See alsoA.A. Macaulay vs. NAL Merchant Bank Ltd. (1990) 6 SCNJ 117 at page 133.

The respondents General Manager had written to the appellant to stop the continued accrual of interest on ?The Investment Agreement? in a letter dated 18th August, 2011 at pages 21 to 22 of the printed record as follows:-
?Benue Links (Nigeria) Limited,
Gboko Road, Makurdi,
BL/AD/335/VOL.1/161
18th August, 2011.

Aondo Dura Chris,
1/3 Aondo Dura Chris Close,
Hudco Quarters, High Level,
Makurdi, Benue State.
Dear Sir,
RE: INVESTMENT AGREEMENT BETWEEN AONDO DURA CHRIS AND BENUE LINKS (NIGERIA) LIMITED IN THE SUM OF FIFTEEN MILLION (N15,000,000.00): REQUEST FOR STOPPAGE OF THE RUNNING INTEREST:
You will recall the Investment Agreement executed between you and the Company in the above stated sum dated the 11th day of February, 2011.
We write to appeal to you to kindly accept our proposal to bring to a stop the interest running on the Investment Sum with effect from the 11th of August, 2011.
Recall that the accumulated interest on the Investment Sum rose to N22,500,000.00 as at 11th August, 2011. Out of this sum, we have variously paid the sum of N6,250,000.00 leaving an interest balance of N16,250,000.00. All together, the Company is indebted to you in the sum of N31,250,000.00 if you add the principal sum of N15 Million.
Our appeal is predicated on the fact that we have been unable to take delivery of the 50 new buses that were offered the Company by Urban Development Bank of Nigeria Plc (UDBN) under the

Federal Government Urban Mass Transit Revolving Fund Scheme due to our inability to obtain Government Corporate Guarantee which is a condition given by our Bankers for the issuance of Bank Guarantee required by UDBN as a condition precedent for delivery of the buses.
Acceptance of our proposal to stop the interest running on the investment sum we as will place the in-coming General Manager in a better position to source for funds clear the investment sum.
Thank you for your usual and anticipated cooperation and understanding.
SGD.
MR. EMMANUEL MANGER
(GENERAL MANAGER)
SDG.
MR. FRANCIS A. UJAH
(FINANCE MANAGER).?

The Investment Agreement itself is marked Exhibit ?B? at pages 19-20 of the printed record to wit:-
?INVESTMENT AGREEMENT
In consideration of an investment in the amount of N15,000,000.00 (Fifteen Million Naira) only with Benue State Links Nigeria Limited on the

?50

11th day of February, 2011 (hereinafter called ?the Investment?) by Mr. Chris Dura Aondo (hereinafter referred to as ?The Investor?) which expression shall where the con admits include his successors-in-title and assigns hereby undertake and agree to the following:-
1. The investment shall be redeemable by the Company within a period of 60 (Sixty) days by way of 2 (Two) cheques drawn on the Company?s account in the sum of N3,750,000.00 (Three Million, Seven Hundred and Fifty Naira) only payable 30 (Thirty) days from commencement and in the sum of N18,750,000.00 (Eighteen Million, Seven Hundred and Fifty Naira) only payable on maturity of the investment.
2. The Company shall pay interest on the Investment at the rate of Twenty Five percent (25%) monthly on the investment amount, which shall be redeemable by the Company within a period of 60 (Sixty) days by way of 2 (Two) cheques for the amounts agreed above drawn on the Company?s account.
3. Receipt of the Investment shall be by cheques in the sum of N15,000,000.00 (Fifteen Million Naira) only in favor of Benue Links Nigeria Limited.

4. The Investment shall be for a period of 60 (Sixty) days only.
5. The Company hereby undertakes to submit to the Investor the under listed documents.
(a) The original title document(s) to 2 (Two) developed properties in the name of the Company?s Managing Director within the Makurdi area as security for the investment on the date the cheque for the investment is collected.
(b) Copies of valid IDs of the Principal Signatories of the Company with each signatory?s signature appended thereon.
(c) Written Personal Guarantee of the Company?s Managing Director to ensure repayment of the Investment capital and interest.
6. A facilitator?s fee of N500,000 (Five Hundred Thousand Naira) only of investment sum shall be paid upfront to Rossah and Sons Ventures arranging the investment and its terms thereof.
7. In the event of failure by the Company to fulfill her obligations in respect of redeeming the investment, there shall be considered to have been a change of ownership of the

properties from the Managing Director of the Company to the investor within two (2) weeks of the investment due date. Should the value of the property at the time be less than the amount outstanding, the investor shall be entitled to receive such difference from the Company.
8. In the event of the Company?s cessation of business for any reason whatsoever, the investment or any balance and the interest thereon as at such date, shall become due and payable immediately and the Company shall ensure full repayment within one (1) month of the effective terminal date, following which, the investor shall have the right to convert the property in his possession to liquidation the obligation.
9. The Company hereby pledges and agrees to indemnify the facilitation in the event of any default on the investment or any payments associated with it or in the event of any litigation by the investor.
10. The Company by the signatures hereunder hereby pledges and agrees along with all its successors-in-title and assigns to irrevocably abide by the terms of this Investment Agreement.

Signed, Sealed for and on behalf of Benue Links Nigeria Limited on the 11th day of February, 2011.
SGD. SGD.
ACCOUNTANT MANAGING DIRECTOR
SGD.
COMPANY SECRETARY/LEGAL ADVISOR
SGD.
AONDO DURA CHRIS.?

Exhibit ?A? was merely a ?proposal? by the General Manager of the respondent for the appellant to suspend the accrual of further interest on the Investment Agreement. A ?proposal? is something for consideration or acceptance? ? See Black?s Law Dictionary (ante) page 1339. The onus was on the respondent to establish that the appellant accepted the proposal, else, the parties were not ad idem. No new contract came into being governing the new proposal. If Exhibit ?A? does not constitute ?repudiation? of the interest rate in Exhibit ?B.? It is a ?rescission? as defined in Chitty on Contracts, 26th edition, page 1008-1009 paragraphs 1592-1593 to wit:-

?RESCISSION BY AGREEMENT: Where a contract is executory on both sides, that is to say, where neither party has performed whole of his obligations under it, it may be rescinded by mutual agreement, express or implied. The consideration for the discharge is found in the abandonment by each party of his right to performance or his right to damages, as the case may be. A rescission of this nature must be distinguished from a repudiation by one party which the other party may elect to treat as a discharge of the obligation, and from the right to rescind which is given to one party in cases of fraud, misrepresentation, duress and undue influence, and in certain cases of mistake. It depends upon the consent of both parties, to be gathered from their words or conduct and not upon the intimation by one of them that he does not intend to be bound by the agreement.
EFFECT OF RESCISSION: A contract which is rescinded by agreement is completely discharged and cannot be revived. The parties will usually make express provision for the restoration of money paid or for payment for services performed under the contract prior to rescission. ?

But in the absence of such provision (express or implied) money paid in pursuance of the abortive contract can be recovered by an action for money had and received, although it is more doubtful whether a claim could be made for payment not yet due in respect of services rendered.?

The institution of the suit in the Court below is evidence that the claimant/appellant did not accede to the request of the respondent to stop the accrual of the interest on the Investment Agreement. Paragraph 13 of the Statement of Claim at page 6 of the record of appeal sought the following remedies against the respondent in the Court below:-
?13. WHEREFORE the plaintiff claims against the defendant as follows:-
(i) The sum of N16,250,000.00 being the agreed outstanding balance owed the plaintiff by the defendant.
(ii) Interest on the sum of N16,250,000.00 at the rate of 10% from the date of judgment until judgment debt is liquidated.
(iii) The cost of this action.?

Paragraph 11 of the Statement of Defence at page 55 of the printed record pleaded as follows:-
?11. WHEREOF the defendant states that the plaintiff is not entitled to the amounts and or relief he claims in paragraph 13(i), (ii) and (iii) of the statement of claim and will at the hearing of this suit urge on the Honourable Court to dismiss the same for being devoid of merit and speculative.?

Paragraphs 1-5 of the Statement of Claim pleaded the facts showing why the claimant was not entitled to the remedies being claimed against the respondent:-
?1. The plaintiff at all times material to this suit is a public servant, who resides at 1/3 Aondo Dura Chris Close, Hudco Quarters, High Level, Makurdi, within the jurisdiction of this Honourable Court.
2. The defendant at all times material to this suit is a company incorporated under the Laws of the Federal Republic of Nigeria, with its Registered Head Office at Gboko Road, Makurdi also within the jurisdiction of this Honourable Court.
3. The plaintiff avers that sometime in 2011, the defendant approached plaintiff with an investment proposal whereby it requested the

plaintiff to co-invest with it towards raising the capital required for the purchase of fifty buses allocated to it under the Federal Government Urban Mass Transit Revolving Fund.
4. The plaintiff avers that this proposal resulted from the meeting of the defendant?s management dated the 10th day of February, 2011; and that in line with this resolution of the defendant, investors were to deposit a minimum of N15,000,000.00 with the defendant, whilst 25% interest was approved by the defendant on any such deposit. The plaintiff shall, at the trial of this suit, found and rely on the Extract of Meeting of the defendant?s management dated the 10th day of February, 2011; which is hereby pleaded. The defendant is hereby given Notice to produce the original of the extract at the trial of this suit.
5. The plaintiff avers that against the backdrop of the persuasion of the defendant?s management, particularly in view of the terms of the investment highlighted in paragraph 4 above, the plaintiff entered into an investment agreement with the defendant on the strength of the terms spelt out therein, which was

duly executed; and that he deposited the sum of N15,000,000.00 with the defendant. The plaintiff shall, at the trial of this suit, found and rely heavily on the Investment Agreement dated the 11th day of February, 2011; a duly executed copy of whereof is hereby pleaded.?

What is admitted in the statement of defence discharge the plaintiff of further proof at the trial. Section 123 of the Evidence Act, 2011 reads as follows:-
?123. No fact needs to be proved in any civil proceeding which the parties to the proceeding or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.?
See Andony vs. Ayi II & Ors. (2004) All FWLR (Pt. 227) 444 at 482; Elendu vs. Ekwoaba (1995) 3 NWLR (Pt.386) 704 at 747. No one sets out to prove that which has not been denied. See Olale vs. Ekwelendu (1989) 7 SCNJ (Pt.2) 62 at page 102.

The claimant pleaded from paragraphs 6-12 of the Statement of Claim as follows:
?6. The plaintiff avers that though the defendant commenced payment of interest on the principal sum, as agreed in the Investment Agreement, the defendant shortly defaulted in paying the interest; and wrote the plaintiff making an offer to halt the running of interest on the principal sum, contrary to the terms of the Investment Agreement. The plaintiff shall, at the trial of this suit, found and rely heavily on the letter dated the 18th day of August, 2011; and same is hereby pleaded.
7. The plaintiff avers further that he has never consented to this offer made by the defendant either in writing or otherwise; nevertheless, the defendant has unilaterally, and without the slightest compunction, discontinued the payment of interest.
8. The plaintiff avers that owing to the unilateral stoppage of interest on the principal sum, the accumulated outstanding interest rose to the tune of N22,500,000.00. As a matter of fact, the defendant has succeeded in paying only the sum of N6,250,000.00 out of this accumulated outstanding interest of N22,500,000.00.

9. The plaintiff avers further to paragraph 8 above that the interest balance of N16,250,000.00 has remained unpaid and is still outstanding as at 11th August, 2011 and, in fact, up to the present moment. As a matter of fact, the defendant has by its letter of the 18th day of August, 2011, pleaded in paragraph 6 above, admittedly stated this outstanding sum, but without any evident intention to pay same to the plaintiff.
10. The plaintiff avers also that the defendant has, in a curious twist, paid him the principal sum of N15,000,000.00, but has refused and or defaulted in paying to the plaintiff the outstanding interest balance of N16,250,000.00 in spite of numerous entreaties, persuasions, and interventions from the plaintiff and other well-meaning citizens of Benue State.
11. The plaintiff avers as of fact, he, having made numerous unsuccessful efforts to recover this outstanding sum from the defendant, has recently instructed his Solicitors of A.S. Shaakaa, Jr./Partners, who wrote to the defendant demanding the payment of

this outstanding sum of N16,250,000.00, but also to no avail. The plaintiff shall, at the trial of this suit, found and rely heavily on his Solicitors? letter of the 5th day of May, 2015; which is hereby pleaded and the defendant given Notice to Produce the Original of this letter at the trial.
12. The plaintiff avers that the defendant?s perennial refusal and or default in paying him the outstanding interest balance of N16, 250,000.00 has occasioned him underserved emotional and psychological distress, huge economic ruination, and financial loss.?

The statement of Defence at page 53 to 56 of the printed record joined issue with the appellant by pleading as follows:-
?1. SAVE AND EXCEPT as are hereinafter expressly admitted, the defendant denies each and every material allegation of facts contained in the plaintiff?s statement of defence (afterwards simply referred to as ?the defence?) as if each such allegations were herein set out and traversed seriatim.

2. Paragraphs 1, 2, 3, 4 and 5 of the claim are admitted.

3. Paragraphs 6, 7, 8, 9, 10, 11, 12 and 13 of the claim are denied.
4. In general reply to paragraphs 6, 7, 8, 9, 10, 11, 12 and 13 of the claim, the defendant states as follows:-
(a) That to date, the Investment Agreement dated 11th day of February, 2011 entered into by the parties in respect of the transaction leading to this suit remains the sole agreement covering the transaction. The said agreement is hereby pleaded, a copy whereof is hereto attached.
(b) That the agreement states the tenure of the investment by the plaintiff to be sixty days or two months from the said 11th February, 2011 and the interest on the invested amount to be 25%.
(c) That relatedly, the agreement states that the agreed 25% interest on the above invested amount was to be paid for the sixty days or two months tenure of the investment only.
(d) That the total amount of money consequently agreed to be paid by the defendant to the plaintiff pursuant to the said agreement was N22,500,000.00, which amount is made up of the invested amount of N15,000,000.00 and the two months interest of N7,500,000.00 thereon at the said 25%.

(e) That the defendant has since repaid the invested sum of N15,000,0000.00 to the plaintiff.
(f) That out of the agreed interest of N7,500,000.00 for the sixty days tenure of the investment, the defendant has so far repaid the sum of N6,250,000.00.
(g) That it was not agreed by the parties that the interest on the invested amount should extend beyond sixty days.
(h) That it was not agreed by the parties that in the event of any form of default by the defendant, interest should continue to accrue on the invested amount or any part of it from month to month until the amount is fully paid up.
(i) That the invested amount was secured using the personal properties of the then General Manager of the defendant Engr. Emmanuel Manger. The letter of personal guarantee executed by the said General Manager is hereby pleaded, a copy whereof is hereto attached.
(j) That it was agreed by the parties that in the event of the default of the defendant in repaying the invested amount and the agreed

interest thereon or any part of it, the plaintiff was to assume ownership of the securities in lieu of his money.
(k) That it is only after full compliance with paragraph (j) above and in the event that the value of the security at the time of takeover is less than the amount remaining unpaid that the plaintiff will have recourse to the defendant for the balance.
5. In specific reply to paragraphs 6 and 7 of the claim, the defendant reiterates paragraphs 4(c), (d) and (f) herein and states in further reply that as the investment agreement clearly states a sixty days or two months tenure for the interest on the facility, the occasion never arose whereby the interest would run beyond the sixty days period to warrant a request or offer by the defendant for the halting of the same which request the plaintiff would decline to consent to.
6. In further reply to paragraphs 6 and 7 of the claim, the defendant shall not only require the strictest proof of the existence, genuineness, authenticity or veracity of letter dated 18th August, 2011 at trial, she shall also be heard

to contend that assuming without conceding that she wrote the offer letter dated 18th August, 2011, the letter is of no effect whatsoever and in fact goes to nothing as it lacks the capacity to add to or reduce from or howsoever vary the agreement reached between her and the plaintiff on the transaction in issue, not being itself an agreement.
7. In specific reply to paragraph 8 of the claim, the defendant reiterates paragraphs 4(b), (c), (d), (e), and (f) herein and states in further reply that the claim in paragraph 8 of the claim is a deliberate misrepresentation of the import of the agreement entered into by the parties as the sum of N22,500,000.00 is not accumulated interest but the total amount of money due to the plaintiff from the transaction within the sixty days tenure of the agreement, which amount is made up of the N15,000,000.00 invested by the plaintiff and the interest of N7,500,000.00 thereon. Paragraph 4(h) herein is reiterated in further reply.
8. In specific reply to paragraph 9 of the Claim, the defendant reiterates paragraphs 4(b), (b), (c), (d), (e), (f), (h), 6 and 7 herein.

9. In specific reply to paragraphs 10, 11 and 12 of the claim, the defendant reiterates paragraphs 4(b), (c), (d), (e), (f), (h), 6 and 7 herein and states in further reply and shall be heard to assert at trial that having repaid the principal sum of N15,000,000.00 and interest of N6,250,000.00 thereon, totalling N21,250,000.00, the outstanding interest balance is N1,250,000.00 but not N16,250,000.00 the plaintiff claims as such she is justified in refusing to pay the outrageous amount to the plaintiff.
10. In further reply to paragraphs 10, 11 and 12 of the claim, the defendant reiterates paragraphs 4(i) and (j) herein and states and shall be heard to contend at trial as follows:-
(a) That assuming without conceding that she is indebted to the plaintiff in any amount arising from the transaction in issue, the plaintiff?s only remedy is to assume ownership of the security offered for the facility as agreed between them in the relevant agreement.
(b) That this action is consequently premature and therefore incompetent as the plaintiff has not yet exercised his right under the said agreement.?

A. O. Onum, J., (as he then was) held on 4th December, 2015 at page 158 lines 6-29 of the printed record as follows:-
?A settled reading of Exhibit ?B1? and Exhibit ?B2? reveals a gross misunderstanding of the tenure of the former by the human agents of the defendant who authored the latter. The interpretation that the writers of Exhibit ?B2? have made of the clear terms of Exhibit ?B1? can certainly not be a responsible one; it rather smacks of mischief to prepare the grounds for the instant litigation for reasons known to only the plaintiff and the authors of the document. Even a cursory reader of Exhibit ?B1? should be able to discern that paragraphs 1, 2, and 4 of the document, read either separately or together, unequivocally limited the tenure of the investment contract between the parties to 60 days of receipt of the sum invested. The reader should also be able to discern that paragraph 7 of the same document provides, again in unequivocal terms, the remedy that the plaintiff should be entitled to in the event that the defendant failed to honour its own

obligation to redeem the sum invested together with interest thereon at the expiration of the tenure of the contract. The anticipated remedy does not include any of the reliefs that this suit has been constituted to seek against the defendant. In fact paragraphs 8 and 10 of statement of claim read together show that the defendant has already paid the sum invested and interest thereon to the plaintiff. It is hard to see what again remains of the contract to warrant this suit. Exhibit ?B2?, being a unilateral document, is not admissible to add to, vary, subtract from or contradict the clear and unambiguous terms of Exhibit ?B1?. The notion of accrual of interest in perpetuity that underscores the instant suit is certainly extraneous to, and a misreading of Exhibit ?B1?. This suit is therefore like exploring for gold where none exists.
On the basis of the foregoing considerations, I do not see any merit in any aspect of the suit and so it is hereby dismiss in its entirety.?

The fact is that the principal sum invested by the appellant in the business, namely, N15,000,000.00 (Fifteen Million Naira) has been repaid

by the respondent to the appellant and this is admitted in paragraphs 6-12 of the statement of claim. But as there has been a unilateral stoppage of the payment of the agreed 25% interest on the investment, it seems to me that the claimant?s remedy was to be found in paragraph 7-10 of the Investment Agreement of 11th August, 2011 which, for over-emphasis reads as follows:-
?7. In the event of failure by the Company to fulfill her obligations in respect of redeeming the investment, there shall be considered to have been a change of ownership of the properties from the Managing Director of the Company to the investor within two (2) weeks of the investment due date. Should the value of the property at the time be less than the amount outstanding, the investor shall be entitled to receive such difference from the Company.
8. In the event of the Company?s cessation of business for any reason whatsoever, the investment or any balance and the interest thereon as at such date, shall become due and payable immediately and the Company shall ensure full repayment within one (1) month of the

effective terminal date, following which, the investor shall have the right to convert the property in his possession to liquidation the obligation.
9. The Company hereby pledges and agrees to indemnify the facilitation in the event of any default on the investment or any payments associated with it or in the event of any litigation by the investor.
10. The Company by the signatures hereunder hereby pledges and agrees along with all its successors-in-title and assigns to irrevocably abide by the terms of this Investment Agreement.?

The onus is on the appellant to show how the determination of the dispute by the learned trial Judge was substantially wrong or led to a miscarriage of justice under Order 4 Rule 9(4) of the Court of Appeal Rules, 2016 which provides as follows:-
?9(4) In any case where the Court has power to order a new trial on the ground that damages awarded by the Court below are excessive or inadequate, the Court may in lieu of ordering a new trial:-
(a) substitute for the sum awarded by the Court below such sum as appears to the Court to be proper.

(b) reduce or increase the sum awarded by the Court below by such amount as appears to the Court to be proper in respect of any distinct head of damages erroneously included or excluded from the sum so awarded. But except as aforesaid, the Court shall not have power to reduce or increase the damages awarded by the Court below.?
The appellant has not shown that a remedy for the breach of the agreement is under paragraphs 7-10 of the Investment Agreement of 11th August, 2011. The appeal stands dismissed.

ONYEKACHI AJA OTISI J.C.A.: My Learned Brother, Joseph Eyo Ekanem, JCA made available to me in advance the draft copy of the Judgment which he has just delivered dismissing this appeal. I agree that this appeal is without merit. I will only make few comments in support.

The general rule is that where parties have embodied the terms of their agreement in a written document, extrinsic evidence is not admitted to add, vary or subtract from or contradict the terms of the written instrument; UBN v. Ozigi (1994) 3 NWLR (333) 385; Koiki v. Magnusson (1999) 8 NWLR (Pt. 615) 492;

Ogundepo v. Olumesan (2011) LPELR-1297(SC); Baliol (Nig) Ltd v. Navcon (Nig) Ltd (2010) 16 NWLR (PT.1220) 619, (2010) LPELR-717(SC); Silverbird Galleria Ltd v. Niyod Construction (Nig) Ltd (2015) LPELR-25847(CA). Parties are bound by the clear provisions of a contract they voluntarily entered into and the Court is bound to give effect to same; A.G. Ferrero Company Ltd. v. Henkel Chemicals Nigeria Ltd (2011) LPELR-12(SC). The Court would always respect the sanctity of the terms of the contract. The Supreme Court, per Fabiyi, JSC in BFI Group Corporation v. B P E (2012) LPELR-9339(SC) restated these established principles thus, pages 23-24 of the E-Report:
“It must be reiterated here that the Court must treat as sacrosanct the terms of an agreement freely entered into by the parties. This is because parties to a contract enjoy their freedom to contact on their own terms so long as same is lawful. The terms of a contract between parties are clothed with some degree of sanctity and if any question should arise with regard to the contract, the terms in any document which constitute the contract are invariably the guide to its interpretation when parties enter into a

contract, they are bound by the terms of the contract as set out by them. It is not the business of the Court to rewrite a contract for the parties. See Afrotec Tech Services Nig Ltd. v. MIA & Sons Ltd. (2000) 15 NWLR (pt. 692) 730 at 788.”
Where parties to an agreement decide to introduce new terms to their contract or agreement, they can only do so by specific reference to the earlier agreement to the effect that the later agreement has introduced new terms thereof, except such new terms could be inferred by their conduct; Yaro v. Arewa Construction Ltd & ors (2007) LPELR-3516(SC).
In the instant case, the contract between the parties was embodied in Exhibit B1, the investment agreement, which stated the terms governing the relationship between the parties. Any term not contained therein and for which there was no subsequent explicit agreement cannot be given effect to by the Court; JFS Investment Ltd v. Brawal Line Ltd & Ors (2010) LPELR- 1610(SC); Baba v. Nigerian Civil Aviation Training Centre (1991) 5 NWLR (Pt. 192) 388. Koiki v. Magnusson (supra). Exhibit B2 was a letter written by the Respondent’s General Manager in admission

of a debt purporting to spring from the investment agreement, Exhibit B1. Exhibit B2, in effect purported to change or alter the terms of Exhibit B1 by introducing terms extraneous to it. However, the terms of the said investment agreement, Exhibit B1, cannot simply be changed or altered by a letter, Exhibit B2, which made no such intention clear.
?
For these reasons and for the more comprehensive reasons given in the lead Judgment, I also dismiss this unmeritorious appeal and abide by the orders made by my learned Brother.

Appearances:

Professor A. S. Shaakaa with him, T. J. Yaji, Esq.For Appellant(s)

T. M. Nule, Esq.For Respondent(s)

Appearances

Professor A. S. Shaakaa with him, T. J. Yaji, Esq.For Appellant

AND

T. M. Nule, Esq.For Respondent