MR RAPHAEL JEGEDE v. MAYOR ENGINEERING COMPANY LIMITED
(2013)LCN/5856(CA)
In The Court of Appeal of Nigeria
On Friday, the 18th day of January, 2013
CA/L/731/08
RATIO
WORDS AND MEANING: “BRIEF”
“See the case of Nwokoro v. Onuma (1990) 3 NWLR (Pt. 136) 22 SC, where the Supreme Court following the case of Duncan v. Khler 37, Minn, 379, defined a brief as- “A condensed statement of the propositions of law or fact or both, which a party or his counsel wishes to establish at the appeal; together with the reasons and authorities, which can sustain them.” Per AUGIE, J.C.A.
WORDS AND MEANING: PERSONALLY
“The word “personally” means – “by a particular person rather than somebody acting for them; in a way that is connected with one particular person rather a group of people” – see Oxford Advanced Learner’s Dictionary, Ed.” Per AUGIE, J.C.A.
CONTRACT: ACCEPTANCE: DEFINITION
“An acceptance is the reciprocal act or action of the offeree to an offer in which he indicates his agreement to the terms of the offer as conveyed to him by the offeror. An acceptance of an offer may be demonstrated by conduct of the parties, their words, or by documents that have passed between them. But as Aboki, JCA, further explained in Metibaiye V. Narelli Int. Ltd. (supra)- “The conduct of the parties must be unequivocally traceable to the transaction to constitute acceptance. Where there is a missing link between the conduct of the parties and the transaction, a Court of Law will not be prepared to hold that a valid contract exists between them. An acceptance of offer by conduct will amount to proper acceptance only if it is clear that the offeree did the act with the intention of accepting the offer.” Per AUGIE, J.C.A.
BURDEN OF PROOF IN CIVIL CASES
“The law is emphatic – he who asserts must prove, and until he has proved or made out a case that requires answers from the Respondent, the Respondent does not have to react or say anything for or against its position on the matter. This is the purport of Section 133 (1) of the Evidence Act, which insists that in civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the Judgment of the Court would be given if no evidence were produced on either side, and sub-section (2) of the same Section 133 further says that – “If the party referred to in subsection (1) of this Section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom the Judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.” Per AUGIE, J.C.A.
CONTRACT: ELEMENTS OF A VALID CONTRACT
“A contract is an agreement, which the law will enforce or recognize as affecting the legal rights and duties of the parties, and five ingredients must be present in a valid contract, namely offer, acceptance, consideration, intention to create legal relationship and capacity to contract. All five ingredients are autonomous and equal in the sense that a contract cannot be formed if any of them is absent. What this means is that a contract cannot exist in the eyes of the law unless all the five ingredients are present – see Orient Bank (Nig) Ltd. v. Bilante International Ltd. (1997) 8 NWLR (pt.515) 37, B.F.I.G. v. B.P.E (2008) ALL FWLR (Pt.416) 1915 and Metibaiye v. Narelli International Ltd. (2009) 16 NWLR (Pt.1167) 326. Also, for a contract to exist there must be mutuality of purpose and an intention; the two contracting parties must agree. One of the fundamental principles of the law of contract is that the parties must reach a consensus ad idem in respect of the terms thereof for the contract to be regarded as legally binding and enforceable – see Njikonye v. MTN Nig. Comm. Ltd. (2008) 9 NWLR (pt.1092) 339, P.T.F. v. W.P.C. Ltd. (2007) 14 NWLR (Pt.1055) 478. Thus, the two or more minds must meet at the same point, event or incident. Where they say different things at different times they are not ad idem and, therefore, no valid contract is formed. So, the meeting of minds of the contracting parties is the most crucial and overriding factor or determinant in the law of contract – see Dodo v. Solanke (2007) ALL FWLR (Pt.346) 576.” Per AUGIE, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
MR RAPHAEL JEGEDE
(Trading under the Name And Style of Aigbuduohen & Co.) Appellant(s)
AND
MAYOR ENGINEERING CO. LTD. Respondent(s)
AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment): The Respondent is based in Ikorodu, Lagos State, where it manufactures iron products; however, it is a Member of the Man Long Lee Group of Companies, based in Kano. Sometime in 1993, the Appellant was an Assistant Director of Labour in the Kano Office of the Federal Ministry of Labour and Productivity, and he assisted the Group of Companies in solving their industrial problems. By an application dated 30/3/1993, approved by the Chairman of the Group, he was appointed a distributor of another member of the Group of Companies – Nigerian Spanish Engineering Co. Ltd. He executed the “unwritten contract” from 1993 to 1994, and was duly paid the agreed commission by the Company. After he moved from Kano in 1994, his application for transfer was approved, and he was appointed a distributor for the Respondent. He also executed the “unwritten contract” in 1994, but was paid half the sum due as commission. He was denied commission for the larges sales he made from 1996 to 1998.
The situation continued up till 2004, and by January 2005, the Appellant instructed his Solicitors, Messrs. J. Odion Esezoobo & Co. to write two demand letters to the Respondent. The first letter dated 31/1/2005, reads as follows –
“- – Sometime in May 1993, your group appointed our client a distributor of one of your group, Nigeria Spanish Engineering Company Ltd, in Kano upon our clients’ application. The terms of the Agreement were that our client would canvass for, market and sell the iron products of the Company for a commission of N1,000.00 – – per ton. Further to the agreement, our client went all out between 1993 and 1994 canvassing for patronage, marketing and selling the products. He was duly paid his agreed commission from time to time during this period. Following his movement from Kano later in 1994, our client applied for and was duly appointed your distributor in Lagos by way of transfer of the existing relationship in Kano. The agreement made in Kano was accordingly modified as such to apply to and cover Mayor Engineering Company Ltd, Ikorodu Lagos. Our client who thus become a distributor of your iron products on the agreed commission executed the contract for the new company i.e. your good self religiously with a sale record of N61,273,114.50 – – for the period January to December 1999. This means 2,139.68 tons making the sum of N2,139,680 due and payable to our client. From January to December 2000, our client made for you a sale of N141,612,859.10 which translates to 3,904.88 tons entitling him to the sum of N3, 904.880.00 as at December 2000. Yet from the period 2001 to 2003, our client made various sales in pursuance of the agreement with you in the following particulars N115,313,375.70 (for the year 2001), N227,709,610.50 (for the year 2002) and N247,358,277.00 (for the year 2003) all amounting on the aggregate to N793,301,236.20. The total tonnage at the sum made for the period stood at N17, 647.72 by which the sum of N17,647.72 became due and payable to our client by you. In the year 2004, our client made for you a sale of N38,328,152.00 at a tonnage of 422.16 with the sum of N422,160.00 becoming due and payable by you to our client. On the whole, the total sum of money which accrued to you from our client’s activities of canvassing for, distributing, marketing and sale of your products for the period 1999 to 2004 based on your agreement was N831,589,388.90 – – which translates to 18,069.88 tons. In terms of monetary claim, this places our client’s total entitlement at N18,069.880.00 – – Details of all the transactions as listed above are in your office. Our client has made several demands on you for the above sum through letters, telephone calls and personal visits all to no avail. You have offered no explanation for the failure to pay. By your failure to pay the debt, you are in breach of contact. It is our client’s instructions that we take necessary legal steps to recover the sum from you. On a close view of the facts, we are of the opinion that you can look into our client’s claim with a view to settling it without having to go it by litigation. We believe that parties came together with the aim of furthering business interests. Therefore, if any disagreement arises, it is advisable to consider amicable settlement as first option. Further to the foregoing, we request that, if it would please you, arrange for us to have your audience on the matter with a view to resolving it amicably without the necessity of litigation- -”
The second demand letter from his Solicitor is dated 17/2/ 05; and it reads –
Refer to our letter of 31/1/2005 – – In the letter under reference, we made a year to year presentation of our client’s dealing with you with regard to the distribution, marketing and sale of your products wherein you became indebted to our client to the tune of N18,069,880.00 – – We requested for your kind audience in the hope that we might be able to discuss and settle the matter without resorting to litigation. All constraints considered, we feel a period or two weeks is reasonable for o response to our request. However you have failed to accord the courtesy of any even if by way of condescension. Our failure to have your audience has denied us the opportunity of seeing to amicable resolution of the matter even in the age of alternative Dispute Resolution. We are not proud of this. In the circumstance, we are left with no option than to conclude that you do not share our vision of a possible peaceful settlement of the matter. Accordingly, pursuant to our client’s instructions, we hereby write to formally demand from you payment of the sum of N18,069,880.00 – – arising from our clients’ contractual relationship with you with regard to the sale of your products. TAKE NOTICE that if within 14 days from hence we do not receive your cheque we shall compelled to take out a Writ of Summons against you in a Court of law for appropriate remedy without further reference to you”.
In a reply dated 21/3/05, the Respondent’s Solicitor, C. A. Adolor & Co., said –
“The content of your letter are highly surprising to our client for the following reasons:
1. Our client never established any business relationship with your client as alleged in your letter.
2. Our client never appointed your client directly or indirectly as a distributor of its product at any time.
Having no knowledge and records of your client’s claim, our client vehemently denies any indebtedness in any amount to your client. Our client did not enter into any contract with your client and it is, therefore, completely out of place to allege breach of a non-existent contract. Your call requesting our client to look into your client’s claim is unacceptable to our client. We do hope you will advise your client not to reap where he did not sow, please”.
Upon the Respondent’s failure or refusal to pay the said sum, the Appellant instituted an action at the Lagos State High Court, Ikeja, wherein he claimed –
(1) The sum of N18,069,880.00 being sum due from and payable by the [Respondent] to [him] from a contract to distribute, canvass for market and sell [Respondent]’s iron rods for a commission of N1000.00 per ton.
(2) Interest on the sum at the rate of 21% per annum from February 1, 2005 until final payment of the sum and cost.
The Respondent denied liability in its pleadings, and at the trial, the Appellant adopted his Witness Deposition, and tendered several documents admitted in evidence as Exhibits A to U. The Respondent also called one witness as DW1; one of its Managers, Gabriel Falade, who also adopted his Witness Deposition. The Appellant’s demand letters are in evidence as Exhibits J and K, and they tell his own side of the story. The gist of the Respondent’s case as told by DW1 is that there is no policy of payment of commission since its distributorship, and the selling of its products is very lucrative and highly competitive; that the monies paid to the Appellant have nothing to do with commission but a means to reward him for assisting it when it experienced industrial problems in 1993; that in further demonstration of its appreciation for the Appellant’s assistance, the Chairman of the Group, “a very considerate and compassionate person”, personally authorized the kind gesture to him “with no strings attached”; and that its products are highly competitive and self-advertising, which is why many people struggle unsuccessfully for the distributorship of the products. Written addresses were ordered, filed and adopted, and in its Judgment delivered on 25/6/2007, the learned trial Judge, Onigbanjo, J., held as follows –
“I cannot see my way clear as to exactly what the Claimant and the Defendant’s Chairman said and agreed upon in respect of the oral contract – – All I have is that the Claimant says so and the documents tendered by Claimant – – I do not think I can safely draw an inference of the existence of an oral contract on the balance of probabilities – – since it is trite in law that parties can only be said to have entered into a validly binding contract if there is evidence of – – offer, unqualified acceptance, consideration, intention to enter into a legally binding contract on the terms agreed on and capacity to contract by the parties – – I am afraid I do not think the contents of those documents necessitate my drawing such an inference especially when they are solely produced by the Claimant. – – Assuming without conceding that Exhibit “A” herein is the Claimant’s offer of his services as a distributor – – and the alleged signature of the Defendant’s Chairman on Exhibit “A” is proof of acceptance of this offer, there is nothing on Exhibit “A” or any of Claimant’s other documents suggesting and or proving the Defendant’s acceptances of the offer on the terms claimed by the Claimant. If – – it is assumed without conceding that it was the Defendant’s Chairman who made an oral offer on the terms as claimed herein to the Claimant with a directive that the Claimant should go ahead and apply in writing for distributorship of Defendant’s products on those terms, it is inconceivable that a person of the Claimant’s status as at that time would do so in the form of Exhibit “A” herein without spelling out the agreed terms of the distributorship in the letter of application for distributorship. Since all I have on this important issue is the Claimant’s say so, the Defendant’s firm denial of the existence of any such oral contract and attendant explanation makes the corroboration of Claimant’s assertion a must in order to at least tilt the imaginary scale of evaluation of evidence back in Claimant’s favour”.
The learned trial Judge concluded as follows at page 134 of the Record –
“The Claimant has therefore by implication failed to prove his claim before the Court and the case should be dismissed. The Claimant’s case, therefore, fails in its entirety for the reasons earlier given in this Judgment, and is, therefore, dismissed. Dissatisfied, the Appellant appealed to this Court with a Notice of Appeal containing 8 Grounds of Appeal, and he distilled 8 issues for Determination in his brief of argument prepared by Johnson O. Esezoobo, Esq.; the issues are –
1. Whether the learned trial Judge was right when without determining the issues submitted before the Court for determination, he held that the Appellant, “by implication failed to prove his claim” and dismissed the same.
2. Whether the learned trial Judge did not err in law when he failed to appreciate the Appellant’s case from the pleadings as well as assess and evaluate the evidence and hold that the Appellant proved his case.
3. Whether the learned trial Judge was right when he ignored the Appellant’s evidence and acted on the Respondent’s inadmissible hearsay to come to a conclusion that the Appellant failed to prove his case.
4. Whether the learned trial Judge did not misdirect himself on and misapply the authorities of OMEGA BANK NIGERIA PLC v. O. B. C. LTD (2005) 8 N.W.L.R (PT.928) 547 AND LARMIE v. D.P.M.S. LTD (2005) 12 SC (Pt.1) 111 in his conclusion wherein he dismissed the case.
5. Whether the learned trial Judge was right when he invoked S.149 (d) of the Evidence Act holding that the Appellant’s evidence required corroboration and the Appellant failed to call the defendant’s Chairman or Mr. Suzuki.
6. Was the learned trial Judge right when he failed to find on the legal status of the Respondents DW1 together with his evidence and held that the burden of proof did not shift?
7. Whether the learned trial Judge was right when he held that the burden of proof was on or shifted to the Appellant to prove that the agreement with the Respondent’s Chairman on payment of N1,000.00 per ton and that failure to call the Chairman or Mr. Suzuki was fatal having regard to S.149 (d) of the Evidence Act.
8. Whether the judgment of the Lower Court is not perverse and against the weight of evidence.
The Respondent, however, submitted in its brief of argument settled by Peter Olomola, Esq., that the issues that call for Determination in this appeal are –
(a) Whether or not the judgment is against the weight of evidence.
(b) whether or not the evidence of DW1 is admissible.
(c) Whether or not the learned trial Judge erred in law by not determining the other minor issues after finding that the Appellant has failed on the balance of probabilities to prove to the Court the existence of any contract between the parties as alleged by the Claimant.
In my view, the main issue for determination in this appeal is simply whether the Lower Court was right to hold that the Appellant failed to prove his claim, which is clearly stated as follows in paragraph 6 of his Statement of claim –
“By the express terms of the unwritten contract duly approved by the Chairman of the Group for and on behalf of the company, [he] was to be the Company’s representative to canvass for, distribute, market and sell the Company’s iron products and be paid a commission of N1,000.00 per ton sold”.
The Appellant, however, argued that the Lower Court failed to first ascertain his case from the pleadings and then relate the evidence to it, citing Adelusola v. Akinde (2004) 12 NWLR (Pt.887) 295. He referred to his Writ of Summons, Statement of Claim, Written Deposition, Exhibits he tendered, and submitted that the Respondent did not controvert his issues or establish its averments by admissible evidence; and that in the face of his overwhelming evidence, he could not lightly be said not to prove his case, so, the Lower Court erred in holding that he “by implication failed to prove his case”, citing UBA Plc. V. B.T.L. Ind. Ltd. (2006) 19 NWLR (Pt. 1013) 61, NBC Plc. V. Olarewaju (2007) 5 NWLR (PT.1027) 255 and Borisade V. NBN Ltd. (2007) 1 NWLR (PT. 1015) 217.
He further argued that it is not a usual procedure to say that a party has “by implication failed to prove his case”; that the Lower Court held that “the issues identified by Counsel are correctly identified”, but took a detour thus – “I feel that the justice of the case would be best met by my consideration of the issues in the following logical sequence”, which is unusual and marked the turning point when the Lower Court left his case summarized in the lone issue, held to be properly identified, to do the Respondent’s unsubstantiated case, and came to the conclusion complained about. He further submitted that the reason given by the Lower Court for adopting the procedure, that is – “I feet that the justice of the case would be best met”, is not known to law but is a deviation; a step out of the law and practice of the Nigerian adversarial system.
At this stage of his brief up till the end, the Appellant kept referring us to “submissions on record at pages – – together with the cases –“, which are the “submissions” and “cases” he cited in his written address at the Lower Court. What does this Court have to do with submissions made at the Lower Court? The Rules of this Court clearly says that “the Appellant shall within 45 days of the receipt of the Record of Appeal from the Court below file in the Court a written being, being a succinct statement of his argument in the appeal.”
see also Nwokoro v. Onuma (1990) 3 NWLR (Pt. 136) 22 SC, where the Supreme Court following the case of Duncan v. Khler 37, Minn, 379, defined a brief as-
“A condensed statement of the propositions of law or fact or both, which a party or his counsel wishes to establish at the appeal; together with the reasons and authorities, which can sustain them.”In this case, I am baffled as to why the Appellant would refer to “submissions together with the cases” cited in his written address filed at the Lower Court, when he could very easily have reproduced same in his brief of argument here. As it is, such “submissions” and “cases” will be discountenanced by this Court. All the same, he further argued that the Lower Court did not evaluate the evidence at all, citing Nwaokorobia v. Uzoho (2007) ALL FWLR (Pt.376) 729, Mini Lodge Ltd. V. Ngei (2007) 4 WRN 54; and that it merely recounted what witnesses said and held that he “by implication failed to prove his case”, which is erroneous and far below the standard of the “imaginary scale” in Mogaji V. Odofin (1978) 4 SC 91 and Nkpe v. Nkume (2001) 6 NWLR (PT.710) 543, I will address his other arguments as I go along on, but he concluded as follows –
‘This case presents a sad scenario of a total deviation from law and practice known to the Nigerian adversarial system. [He] came to Court with all the materials – – tendered without objection from the other side who called as its witness a person who knew nothing about the oral contract or the transactions executed thereunder. He got turned back from justice on the ground that he alone produced the documentary evidence – – – he was going to rely on for his case. Also that he did not call his opponent’s chairman or GM to corroborate his case. In the exact words of the learned trial Judge on this point, [he] “by implication has failed to prove his case”.
On its part, the Respondent referred us to Cheshire & Fifoot: Law of Contract, Sections 135(2) & 136 of the Evidence Act, Ezenwa V. Ekon (1999) 11 NWLR (pt.625) 55, and argued that the Appellant did not place anything before the Lower Court from which an unwritten contract could be inferred; that where issues are joined on a matter, the onus to prove it is on the Plaintiff, citing Morohunfola v. Kwara Tech (1990) 4 NWLR (Pt.145) 506; that contrary to his argument, the Lower Court found as a fact that there was no evidence from which to infer an unwritten contract between the parties and the Judgment is not perverse, citing ANPP V. INEC (2004) 7 NWLR (Pt.871) 16; that any other decision other than dismissal would have been perverse and run counter to the evidence before the Lower Court, which it is not bound to follow any particular style in writing Judgment, citing Jekpe V. Alokwe (2001) 1 NWLR (Pt.715) 252; that no contract can be inferred from the conduct of the parties in this case; that the duty of appraising evidence is that of the Lower Court that saw and heard the witness, and this Court cannot disturb its Judgment merely because it would have come to a different conclusion, citing Ndem V. Nkpinang (2001) 2 NWLR (Pt.698) 451, and it is trite that a Court only acts on credible evidence, citing Agbi v. Ogbeh (2006) 11 NWLR (Pt.990) 65; that the Appellant expected the Court to ignore the damning evidence before it and hang on technicalities to hold that there is an unwritten contract between the parties; that until a Plaintiff discharges the onus placed on him, the burden does not shift to the Defendant, citing Ojo v. Ghaororo (2006) 10 NWLR (Pt.987) 173; and that the Appellant is wrong to insist that the Lower Court believes his assertion that he entered into an unwritten agreement with it, when the evidence including documents tendered by him, point to one and only one conclusion – that no contract for the payment of discount/commission exists between the parties.
This case is not as complicated as the Appellant would want to make it out to be; the issue is quite simple – did he prove his assertion that there was an unwritten contract between him and the Respondent?
The law is emphatic – he who asserts must prove, and until he has proved or made out a case that requires answers from the Respondent, the Respondent does not have to react or say anything for or against its position on the matter. This is the purport of Section 133 (1) of the Evidence Act, which insists that in civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the Judgment of the Court would be given if no evidence were produced on either side, and sub-section (2) of the same Section 133 further says that –
“If the party referred to in subsection (1) of this Section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom the Judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with”.
The point being made is that this Court cannot look into the Appellant’s grouse against the evidence adduced by the Respondent until we ascertain whether or not he presented sufficient evidence to warrant hearing from the Respondent.
To determine if he did or not, we will have to look at what a contract is, and how the principles apply to his case.
A contract is an agreement, which the law will enforce or recognize as affecting the legal rights and duties of the parties, and five ingredients must be present in a valid contract, namely offer, acceptance, consideration, intention to create legal relationship and capacity to contract. All five ingredients are autonomous and equal in the sense that a contract cannot be formed if any of them is absent. What this means is that a contract cannot exist in the eyes of the law unless all the five ingredients are present – see Orient Bank (Nig) Ltd. v. Bilante International Ltd. (1997) 8 NWLR (pt.515) 37, B.F.I.G. v. B.P.E (2008) ALL FWLR (Pt.416) 1915 and Metibaiye v. Narelli International Ltd. (2009) 16 NWLR (Pt.1167) 326.
Also, for a contract to exist there must be mutuality of purpose and an intention; the two contracting parties must agree. One of the fundamental principles of the law of contract is that the parties must reach a consensus ad idem in respect of the terms thereof for the contract to be regarded as legally binding and enforceable – see Njikonye v. MTN Nig. Comm. Ltd. (2008) 9 NWLR (pt.1092) 339, P.T.F. v. W.P.C. Ltd. (2007) 14 NWLR (Pt.1055) 478. Thus, the two or more minds must meet at the same point, event or incident. Where they say different things at different times they are not ad idem and, therefore, no valid contract is formed. So, the meeting of minds of the contracting parties is the most crucial and overriding factor or determinant in the law of contract – see Dodo v. Solanke (2007) ALL FWLR (Pt.346) 576.
As regards oral contracts, the Lower Court relied on Chesire & Fifoot: Law of Contract, 9th Ed., as follows –
“A contract may be made wholly by word of mouth or wholly in writing, or partly by word of mouth and partly in writing, if the contract is wholly by word of mouth, its contents are a matter of evidence normally submitted to a judge sitting as a jury. It must be found as a fact exactly what it was that the parties said”.
The Lower Court then reviewed the evidence before it, and held as follows –
“Having earlier in this judgment found that proof of an oral contract is a matter of evidence normally submitted to a judge who must be satisfied as to exactly what the parties said and having thoroughly evaluated the evidence for and against this claim, I cannot see my way clearly as to exactly what the Claimant and the Defendant’s Chairman said and agreed upon in respect of the oral contract under consideration. All I have is the claimant’s say so and the documents tendered by Claimant and from which Claimant’s counsel in his written address urged me to conclude the existence of the oral contract. With due respect – – – I do not think I can safely draw an inference of the existence of an oral contract on the balance of probabilities – -“.
This is the crux of the Lower Court’s decision that the Appellant has issues with. He argued that it was in error when it failed to “see (his) way clear”, and failed to draw inference from the documents because they were “solely produced by the Claimant”; and that by failing to see its way clear from the overwhelming evidence before it, and yet refusing to draw inference from available materials, but relying on the evidence of DW1, the Lower Court ignored his evidence.
In sentence after sentence, the Appellant griped about the bundle of documents he placed before the Lower Court, which it did not evaluate at all. Let us look at the documents and see if there is any merit to his complaints. Exhibit A, dated 30/3/1993, reads as follows –
“APPLICATION AS A DISTRIBUTOR IN YOUR IRON PRODUCTS
I wish to apply as a distributor in your iron products.
2 I shall be grateful if initial allocation of two (2) trailer loads of the products is allocated to me monthly.
3. Thanks in advance”.
Exhibit B, dated 13/1/94, reads as follows –
“APPLICATION FOR TRANSFER AS A DISTRIBUTOR IN FOUR IRON PRODUCT FROM SPANISH ENGINEERING KANO TO MAJOR ENGINEERING, LAGOS
I humbly wish to apply for transfer as a distributor in your iron Product from Spanish Engineering, Kano, to Mayor Engineering, Lagos. This is as a result of my movement from Kano with effect from January 1994 to Lagos. My new address in Lagos is 2nd Avenue, 21 Road, ‘F’ Close, House 27, Festac town, Lagos. Thanks for your past and continued understanding and co-operation”.
Exhibit C, dated 15/3/2000, is addressed to “Mr. Suzuki”, and it reads –
“First and foremost, I wish to greet you and to usher your into the New Year 2000 with good prayers for your entire family. I am happy and I think you should be happy about the progress I am making with my Representative, Mr. Saliu Olaoye over the sales of your company’s products. By now you should be aware that the sales turnover we made for Mayor Engineering and Co. Ltd for the year 1990 hit about fifty four million, seven hundred and nineteen thousand, sixty two naira thirty kobo (54,719,062.30). I want to request you to give me some reasonable discount based on total tonnage sold which was about two thousand on hundred and ten point one hundred and six tons (2110.106) or percentage of total amount of money sold to encourage me and those working with me in the sales of your products to double our efforts this year, 2000. Please, direct your junior officer responsible for sales record to produce for me, the computerized sales we made for the period, 1997 and 1998. This should be sent through Saliu to me. I intend to carry the advertisement and sales of your company’s product to many states capitals this year to boost the sales and margin of Mayor Engineering Limited. Help me to greet Mr. Aquino, your fine, officer. May God be with you and prolong your life. Cheers for now and Barko Da-Sallah”.
Exhibit D, dated 20/3/2001, is addressed to the Group Chairman, it reads –
‘This is March, the first quarter of the year, 2001. I therefore feel free to usher your into the new year by wishing you good health and peace profound in and around your family circle. I also wish you a prosperous business year. It may interest you to know that in the year 1999, as a distributor of Mayor Engineering Co. Ltd, which you personally gave to me, I made a total sale of N61,273,114.60. The tonnage involved was 2,139.68 tons. From January to December in the year 2000 I made a total sale of N141,612,859.10). The extracts are from my subsidiary Ledger with Mayor and Co Ltd, Ikorodu. It is through the distribution of computerized sales we are able to know the sales, to cross check with our Representative stationed at the factory and to be able to plan further strategy to boost our sale profile for Mayor Engineering Co. Ltd. You will agree with me that I and my Representative have put in tremendous efforts to hit the above amount of sales in two years. I certainly deserve encouragement by way of discount. Mr. Suzuki promised towards the end of 1999 to give me discount but up till now, he has not done so. I wrote him a letter to this effect dated 15/3/2000 through my Representative, Mr. Saliu Olaoye but there has been no action taken by him, copy of the letter marked ‘J’ attached. I discovered later that the actual sales made were more than fifty-four million naira. I feel convinced that God Almighty had a good purpose for both of us coming together between 1991 to 1993 in connection with my participatory role in the industrial relations activities of your group of manufacturing companies in Kano. To me, you were to elevate me from the position of a mere employee with poor salary to that of a businessman with commensurate financial reward and status. You would recall sir that my extra efforts at stopping the spate of industrial unrest in your factories in Kano both in the day and at night and the expert advice I was giving your management staff at no extra cost, made you to send for me through Mr, Tang who was then your Managing Director of Standard Plastics Industry. You asked me in good faith to ask for anything you could do to help me in appreciation of my contribution towards the growth of your companies even at my spare time. After been guided by Mr. Tang, I requested for iron rod distributorship which you granted and later gave directive that I should be paid one thousand naira (N1000.00) discount per ton for whatever sales I made. This was done for me for the three trucks I sold in Kano before transferring my distributorship to Mayor Engineering at the instance of your kind approval. Unfortunately, Mr. Suzuki has being trying to undermine my understanding with you and to frustrate my marketing potentials for the company. He gives the false impression that we are not making enough sales and that Mayor Engineering Co. Ltd is operating at a loss. Judging from the sales I made for the company between 1999 and 2000, it is unbelievable to mention to any person and indeed to a candid world that I do not deserve discount based on even what you gave to me about nine years ago. Under the circumstance, I am asking through this medium that I be paid discount for the sales I made for Mayor Engineering for the period 1999 – 2000. Copies of the discount which stood at one thousand naira (1,000.00) per ton you gave me while in Kano in 1993 and 1994 are marked and attached for ease of reference. I also wish to tell you that I shall be retiring from my present job as from the end of May, 2001. In view of this, I need capital to further advance my sales capacity in the iron products of mayor Engineering Co. Ltd as well as invest on the rubber products of your group of companies for which I have not been able to market because of lack of reasonable capital. Please your urgent reply would be appreciated. I shall be grateful also if the same information you are passing to me is also extended to Mr. Suzuki to ease the transaction. May God of the Universe, maker of heaven and Earth continue, to give you long life, peace of mind and prosperity not only to accumulate wealth but also to uplift the betterment of mankind anywhere and anytime in the world of work”.
Exhibit E, dated 9/10/2001, is addressed to “Madam Bonnie Lau”; it reads -,
Reference our discussion yesterday of 8th October, 2001, in your office at Standard Plastic, Dakata Street, Bompai in connection with my commission/discount. I think two weeks is enough within which you can make your contracts with chairman and arrange my package for collection. Hopefully, I shall be back to Kano about 22nd of this month to see you, Thanks for your kind co-operations”.
Exhibit F, dated 30/3/2002, and addressed to the Group Chairman, reads:
“Enclosed please, are three years huge sales I made for Mayor Engineering Ltd. The sales cover 1999, 2000 and 2001.. I asked for discount and Mr. Lai asked me to apply for onward transmission to you for approval. I did. Thereafter, I went to Kano and deposited a copy with Madam Bonnie Lau in February, 2002. She promised to get in touch with you for necessary action. Total sales for the three years amounted to N318,239,348.70. The tonnage during the some period was 8,906.240. I am compelled to present the demand now since I do not know any other time when it with be convenient to get at you. It appears that since my sales have been tremendous and Mr. Suzuki can no longer talk of “no sales”, they are preventing me from getting my request across to you by telling me that you are sick in hospital. May God be with you, strengthen and lengthen your days. Remain blessed in Jesus name –
Amen.”
Exhibit G is a “SUMMARY OF SALES AND PRAYER” and it contains a “Prayer” –
“That I be paid discount of N1,000.00 per ton for the years 1999, 2000, 2001, 2003 and 2004 business transaction as were the cases and precedents in 1993, 1994 and 1995. Suzuki cheated me in 1995 with the excuse “no sales”. In 1998, Suzuki paid me N81,000.00 through my representative, Mr. Saliu Olaoye without documentation. The discount ought to have been revised upwards. Although I am not pressing for that. Previous payments/precedents are attached for verification”.”
Exhibit H, dated “March 2003”, is addressed to the Group Chairman; it reads –
“Further to my letter dated 30th September, 2002 in respect of the attached subject matter (discount/commission), for the period covering 1999, 2000 and 2001, I forward here with in addition, the sales I made for the year 2002. That of the year, 2002 stood at 5,024.10 MTS. In terms of money it translates to N227,703,610.50. The sales for the four years 1999, 2000, 2001 and 2002 amounted to N545,942,959.2. Total tonnage is 13,930.34. I shall be grateful for your urgent attention. May God bless you”.
Exhibits L to Q are Extracts of Sales made, and Exhibit R contains a “Prayer” –
” That I be paid discount/commission of N1,000.00 (One Thousand Naira) per ton for the years 1999, 2000, 2001, 2002, 2003 and 2004 business transaction as were the cases and precedents in 1993, 1994 and 1995. My earlier demands and explanations showed that Mr. Suzuki cheated me in 1995 and 1998. Previous discounts/commissions paid to me are attached for your verification and perusal”.
Exhibit S is “payment Voucher” from the Company in Kano; Exhibit T is a copy of an NIB Cheque, and Exhibit U is a “Petty Cash Voucher” for commission paid.
These are the Exhibits on which the Appellant based his insistence that there was an unwritten contract between the parties, but I have scrutinized the Exhibits carefully, and there is no question in my mind that there was no contract in the true sense of the word between the Appellant and Respondent. As I said, for there to be a contract, there must be an offer and acceptance, and the question that comes to mind in this case is – who was making the offer and what was he accepting? An offer connected with a contract is a proposal that emanates from the offeror to the offeree to enter into an agreement to do or not to do a particular thing – see Metibaiye v. Narelli International Ltd. (2009) 16 NWLR (Pt.1167) 326), where Aboki, JCA, explained as follows – –
“A valid offer must be precise and unequivocal giving no room for speculation or conjecture as to its real content in the mind of the offeree. An offer capable of being converted into an agreement by acceptance must consist of a definite promise to be bound provided certain specific terms are accepted”.
An acceptance is the reciprocal act or action of the offeree to an offer in which he indicates his agreement to the terms of the offer as conveyed to him by the offeror. An acceptance of an offer may be demonstrated by conduct of the parties, their words, or by documents that have passed between them. But as Aboki, JCA, further explained in Metibaiye V. Narelli Int. Ltd. (supra)-
“The conduct of the parties must be unequivocally traceable to the transaction to constitute acceptance. Where there is a missing link between the conduct of the parties and the transaction, a Court of Law will not be prepared to hold that a valid contract exists between them. An acceptance of offer by conduct will amount to proper acceptance only if it is clear that the offeree did the act with the intention of accepting the offer”.
In this case, the Lower Court concluded as follows on the issue of contract –
“- – Parties con only be said to have entered into a validly binding contract if there is evidence of the following: offer, unqualified acceptance, consideration, intention to enter into a legally binding contract on the terms agreed on – – I am afraid I do not think the contents of those documents necessitate my drawing such an inference especially when they are solely produced by the claimant. – – Assuming that Exhibit ‘A’ is the Claimant’s offer of his services as a distributor – – and the alleged signature of the Defendant’s Chairman on Exhibit “A’ is proof of acceptance of this offer, there is nothing on Exhibit “A” or any of Claimant’s other documents suggesting and or proving [his] acceptance of the offer on the terms claimed by the Claimant”.
Obviously, the Lower Court’s decision cannot be faulted – for a contract to exist, there has to be an offer by one party to another and an acceptance by the person to whom the offer is addressed. In this case, the Lower Court was right to question exactly what the Appellant and the Chairman said and agreed on. The Appellant kept harping on Exhibit A, which he claimed was his application that was approved by the said Chairman, but his entire case is built on the fact that there was an “unwritten contract” between the parties, and he cannot, therefore, turn around to rely on a written document as proof of his claim. He also claimed that the contract was “duly approved by the Chairman of the Group for and on behalf of the Company”, but in Exhibit D, his letter to the Chairman, he said – “It may interest you to know that in the year 1999, as a distributor of Mayor Engineering Co. Ltd, which you personally gave to me”. The word “personally” means – “by a particular person rather than somebody acting for them; in a way that is connected with one particular person rather a group of people” – see Oxford Advanced Learner’s Dictionary, Ed. Obviously, the Chairman could not have approved the contract “for and on behalf of the Company” if he “personally” gave him the distributorship. He also claimed that it was “upon his application” – Exhibit ‘A’ that he was appointed a distributor, but in Exhibit D, he reminded the Chairman about how he got the contract –
“I feel convinced that God Almighty had a good purpose for both of us coming together – – in connection with my participatory role in the industrial relations activities of your group of manufacturing companies in Kano. To me, you were to elevate me from the position of a mere employee with poor salary to that of a businessman with commensurate financial reward and status. You would recall sir that my extra efforts at stopping the spate of industrial unrest in your factories in Kano both in the day and at night and the expert advice I was giving your management staff of no extra cost, made you to send for me through Mr. Tang who was then your MD of Standard Plastics Industry. You asked me in good faith to ask for anything you could do to help me in appreciation of my contribution towards the growth of your companies even at my spare time. After been guided by Mr. Tang, I requested for iron rod distributorship which you granted and later gave directive that I should be paid N1000.00 discount per ton for whatever sales I made”.
There it is in black and white; he assisted the said Group of Companies and put a stop to “the spate of industrial unrest” in its factories in Kano, and because of the “expert advice” he was giving the management staff at no extra cost, the Chairman sent for him and requested him to ask for anything he could give him in appreciation of his “contribution towards the growth of the companies”. It was after the Chairman granted him the distributorship that he gave the directive that he should be paid a discount per ton for whatever sales he made. There may not be any evidence as to what they said as regards the contract, but the Appellant’s letter to the Chairman, which he tendered, says it all.
The Chairman only gave him special concession to sell the products of the Company based in Kano because of his assistance to the Group when he was Assistant Director of Labour in the Fed. Min. of Labour and Productivity. There was no intention between them to enter any contract, and it is clear that there was no contract, in whatever form, between him and the Respondent. The Lower Court, was therefore, right to find that he failed to prove his claim.
As to his other complaints, I will only say that writing judgment is an art, and it is not the duty of this Court to interfere therewith merely on the ground of style, which is personal – see Mbani v. Bosi (2006) 11 NWLR (Pt.991) 400. In this case, I am of the firm view that the Lower Court did an excellent job of evaluating the evidence, and his complaints to the contrary clearly lacks merit. The end result is that the appeal lacks merit; it fails and it is dismissed.
There will be no order as to costs.
SIDI DAUDA BAGE, J.C.A.: I was honoured with the draft of the Judgment just delivered by his Lordship Hon. Justice A.A. Augie (JCA). I am in complete agreement with the reasons and conclusion reached therein. The appeal is without merit, and is also dismissed by me.
I abide with the order as to costs contained therein.
RITA NOSAKHARE PEMU, J.C.A.: I have had the privilege of reading in draft the Judgment just delivered by my learned brother Amina Adamu Augie JCA, and I agree with her opinion and conclusions.
It is trite that where the finding or Judgment is inconsistent, or does not arise, or flow from the evidence led and accepted by the trial Court, the Appellate Court can reverse the Judgment. NDILI V. AKINSUMADE (2000) 8 NWLR (PT.668) Page 293 (a) 336; ORO V. FALADE-(1995) 5 NWLR (PT.396) AT 385; OGBUCHIE V. ONOCHIE (1988) 1 NWLR. PT 70 AT 370; VEEPEE IND. LTD. V. COCOA IND. LTD. (2008) 13 NWLR (PT.1105) Page 48 at 509 – 571.
In the present case, the learned trial Judge sufficiently evaluated the evidence before him, and that cannot be interfered with by this Honourable Court.
Moreso Judgment writing is peculiar to each Judge, and as long as the Judgment is not perverse, it stays.I also dismiss the appeal.
I abide by the consequential order made, inclusive of the order as to costs.
Appearances
J. O. Ezezoobo, Esq. with Miss Temitope OlasunkanmiFor Appellant
AND
Peter Olomola, Esq. with I. C. Uwe, Esq.For Respondent
