SACH OIL (NIG) LTD v. FBN
(2020)LCN/15361(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Thursday, September 17, 2020
CA/AS/98/2015
RATIO
AGENCY: EXCEPTION TO THE RULE THAT AN AGENT IS NEITHER ENTITLED TO SUE NOR LIABLE TO BE SUED ON A CONTRACT MADE BY HIM IN A REPRESENTATIVE CAPACITY
If an agent in his name enters into a transaction with another, he can sue and be sued in, respect of that transaction. This is in accord with the views expressed in Chitty on Contracts 28th Edition, Volume 2 page 53 paragraph 32- 087 to the following effect:
“A very important exception to the rule that an agent neither entitled to sue nor liable to be sued on a contract made by him in a representative capacity is to be found where an authorized agent makes the contract in his own name without disclosing the fact that he was acting on behalf of another. On such contracts, he can sue and be sued in his name because he is then to all appearances the real contracting party. See Allen V. F.O.’Hearn & Co (1937) A.C. 213, 218. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
CONTRACT: CONSIDERATIONS IN THE INTERPRETATION OF CONTRACTUAL DOCUMENTS
Contractual documents must be interpreted constructively and meaningfully to give effect to contractual relationship and the purport of the contract. See Omega Bank Nigeria Vs. O.B.C. Ltd (2005) 8 NWLR (pt 938) 547 at 576 where Musdapher, JSC stated the law thus: “… the Courts will seek to construe any documents fairly and broadly without being astute or subtle in finding defects. See: Brown V Gould (1972) 1 Chap 53; Fillas & Co. Ltd V. Arcos Ltd (1932) 147 503; (1932) AER 497. After due consideration of all the circumstances and, if satisfied that there was an ascertainable and determinate intention to contract, the Courts will strive to give effect to that intention looking at the intent and not the mere form.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
Before Our Lordships:
Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal
Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
SACH OIL NIGERIA LIMITED APPELANT(S)
And
FIRST BANK OF NIGERIA PLC RESPONDENT(S)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Justice of Delta State delivered on the 13th day of October, 2014 dismissing the claim of the Appellant against the Respondent with a cost of N10,000 (Ten thousand naira only).
The case was commenced by the Appellant on the 30th day of July 2012 via a writ of summons accompanied by an application for summary judgment against the respondent and another Defendant named Dully Shipping and Trading Company Limited. Summary Judgment was given against the said Dully Shipping and Trading Company Limited at the lower Court and the Respondent herein was permitted to enter its defence.
FACTS
The claimant by his amended statement of claim claimed against the 2nd Defendant as follows:
i) Payment of the sum of N44,190,140 (Forty four Million, One Hundred and Ninety Thousand, One Hundred and Forty Naira);
ii) Interest of 22% per centum on the said sum of N44,190,140.00 (Forty four Million, One Hundred and Ninety Thousand One Hundred and Forty Naira) from the 1st day of March, 2011 until the date of Judgment and thereafter 20% interest on the Judgment sum until entire judgment debt is fully paid.
The facts of the case leading to this appeal are as succinctly captured in the Appellant’s Brief of Argument filed and adopted at the hearing on 24-6-2020 thus:
The 1st Defendant at the trial was Dully Shipping and Trading Company Limited and a contraction to Shell Petroleum Development Company Nigeria Ltd, (SPDC). By Exhibits – k – k4, dated 1st February, 2011 the Shell Petroleum Development Company of Nigeria Limited issued to Dully Shipping & Trading Company Limited purchase orders for the supply of one million litres of A.G.O (diesel).
Dully Shipping & Trading Company Limited, not having sufficient funds to execute the contract, approached the Appellant to carry out the execution at the rate of N126.00 per litre. Totaling N116,000,000. The Appellant accepted subject to the provision of a guarantee from a reputable commercial Bank and the Respondent herein agreed to so guarantee.
This was done by the issuance of Exhibit ’D’ which the respondent agreed was issued after the Exhibit K-K4 dated 1st February were submitted to the Respondent.
The contract for the supply of diesel was awarded vide a purchase order of 3rd February 2011.
It is Exhibit ‘C’ for the supply of one million litres of diesel at N116.00 per litre.
The document of guarantee called the comfort letter is dated 4th January, 2011 but delivered to the Appellant on 4th February, 2011.
The Respondent agreed to pay the whole contract sum within 10 working days after the delivery of the diesel.
After the supply, no payment was made inspite the issuance of invoice to the Defendant in furtherance of the Exhibit ‘D’. Despite the payment in full, through the Dully Shipping Company and the service of Exhibit D on the Respondent that had the full sum domiciled; thereafter the respondent paid part of the sum leaving the balance as claimed. The Appellant demanded the balance on account of Exhibit ‘D’ conveying the fact of the effort by 1st Defendant in the suit at the trial to pay the balance before August, 30th 2011 was served the Appellant.
The Respondent admitted issuing the letter of comfort, Exhibit ‘D’ but denies liability on the ground that the validity of the said Exhibit had ceased as it expired before the delivery of the diesel, its life span and validity having been limited to 7 days only.
The trial Court agreed with the Defendant and dismissed the Plaintiff’s case.
The trial Court held that the Exhibit ‘D’ of the parties was not vague but had provided for the period of only 7 working days for the validity thereof.
The learned trial Judge, however, held that there was no question of double compensation in favour of the Appellant in its claim as made, as the proceedings between the Appellant and Dully Shipping and Trading Company Ltd for the Judgment debt was still pending and no evidence of recovery of the Judgment sum had been shown to the Court.
That it was left for the claimant to chose as between the Dully Shipping and Trading Company Limited and the First Bank of Nigeria Plc (in the event that the claimant succeeds against the First Bank of Nigeria, Plc) whom to recover the Judgment debt from.
That “in the final analysis, the Court holds that, the claimant has failed to prove its claim on the balance of probability and it is hereby dismissed with N10,000 (costs awarded) in favour of the Defendant First Bank of Nigeria, Plc.”
Aggrieved by the aforesaid Judgment, the Appellant herein has brought this appeal.
From the Notice of Appeal and its six (6) Grounds as filed, the Appellant by its Appellant’s Brief of Argument deemed filed on 16-5-2016 by order of this Court raised five (5) issues for determination from the six (6) Grounds of Appeal thus:
1. Whether the Learned Trial Judge’s failure to evaluate the unchallenged evidence adduced by the Appellant on the act of part-payment of the contract sum to the Appellant and the promise in Exhibit J by the Respondent to ensure the payment of the balance sum does not occasion a miscarriage of justice.
2. Whether the Learned Trial Judge was right when he held that the Respondent joined issues in its Amended Statement of Defence with the Appellant and thereafter went ahead to uphold the averments in the Amended Statement of Defence, despite the complete failure of the Respondent to give evidence in proof of the same.
3. Whether the Learned Trial Judge was right when he held that failure of the Appellant to call an official of Dully Shipping and Trading Company Limited to show that Exhibit 0 was not delivered to Dully Shipping and Trading Company Limited as at the time it was made by the Respondent is fatal to the case of the Appellant.
4. Whether the Learned Trial Judge was right when he held that the Appellant failed to establish its assertions that Exhibit “0” was backdated to 4th January, 2011, despite the unchallenged and un-contradicted evidence adduced by the Appellant besides the prove of prior and contemporaneous transactions.
5. Whether from the evidence on record, the Letter of Comfort (Exhibit “Oil) was valid for 7 days commencing from the 4th day of January, 2011.(Grounds 5 & 6)
On its part, the Respondent by its Brief of Argument filed on 25-4-2017 but deemed file don 27-4-2017 raised four (4) Issues for determination, thus:
ISSUE I
WHETHER THE LETTER OF COMFORT (EXHIBIT ‘D’) ISSUED BY THE RESPONDENT TO DULLY SHIPPING AND TRADING COMPANY LIMITED IN FAVOUR OF THE CLAIMANT WAS STILL VALID AND SUSBSISTING AS OF THE TIME THE CLAIMANT DELIVERED THE 1,000,000 LITERS OF AGO?
ISSUE II
WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE HELD THAT THE CLAIMANT FAILED TO ESTABLISH ITS ASSERTION THAT EXHIBIT ‘D’ WAS DELIVERED TO THE CLAIMANT IN FEBRUARY, 2011 BUT WAS BACKDATED TO THE 4TH DAY OF JANUARY, 2011?
ISSUE III
WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE HELD THAT FAILURE OF THE APPELLANT TO CALL ON AN OFFICIAL OF DULLY SHIPPING AND TRADING COMPANY LIMITED TO SHOW THAT EXHIBIT ‘D’ WAS NOT DELIVERED TO DULLY SHIPPING AND TRADING COMPANY LIMITED AS AT THE TIME IT WAS MADE BY THE RESPONDENT WAS FATAL TO THE CASE OF THE APPELLANT?
ISSUE IV
WHETHER THE PAYMENT OF THE SUM OF N116,000,000.00 (ONE HUNDRED AND SIXTEEN MILLION NAIRA) UPON THE STRUCTIONS OF THEIR CLIENT DULLY SHIPPING AND TRADING COMPANY LIMITED AND THE PROMISE IN EXHIBIT ‘J’ MAKES THE RESPONDENT LIABLE?
I have perused the issues framed by the respective parties and note that Appellants Issue one is the same with Respondent’s Issue IV; Issues 3 and 4 of the Appellant can be determined in Issues 2 and 3 of the Respondent. Issue 5 of the Appellant’s also Respondents’ Issue One.
The Appellants issues 2 and 3 relate to alleged error of law and perversity of decision and shall be so treated as they also raise the fundamental question of fair hearing.
In the circumstance, and notwithstanding the greater succintity and aptness of the respondent’s Issues which have encapsulated the Appellant’s Issues, I shall and do adopt the Appellant’s Issues for the determination of this appeal as it is his appeal.
APPELLANTS ARGUMENTS
ISSUE ONE
WHETHER THE LETTER OF COMFORT (EXHIBIT ‘D’) ISSUED BY THE RESPONDENT TO DULLY SHIPPING AND TRADING COMPANY LIMITED IN FAVOUR OF THE CLAIMANT WAS STILL VALID AND SUSBSISTING AS OF THE TIME THE CLAIMANT DELIVERED THE 1,000,000 LITERS OF AGO?
Arguing the said issue, Appellant’s counsel contended that the evidence of the Appellant as in the statement on oath was not contradicted as no cross-examination was made against him; furthermore, the Respondent’s Amended statement of defence relating to the Appellant’s statement on oath (the Exhibit ‘A’) was not testified to and therefore stood as an abandoned averment.
For the aforesaid, it was submitted that in the absence of Defence, the standard of proof required of the claimant is minimum proof. It was also argued that once pleadings have been settled and Issues joined, the duty of the Court is to proceed to the trial of the issues and if a party fails or neglects to submit the issues he has raised in his pleadings, for trial by giving or calling evidence in their support, the Court must, unless there are other legal reasons dictating to the contrary, resolve the case against the defaulting party. UNITY BANK PLC VS AUTOMOTIVE COMPONENT NIGERIA LTD (2012) ALL FWLR (PT. 610) 1265 at 1312 pars E-G. J. O. IMANA V. MADAM J. ROBINSON (1979) 3-4 SC 1.
Counsel observed that the Appellant had copiously pleaded and given evidence to show that in line with Exhibit ‘D’, payment of the entire contract sum for the supply of one million litres of AGO to Shell Petroleum Development Company Limited was domiciled by Dully Shipping and Trading Company Limited to the Respondent. It was proved by the Appellant that in line with the domiciliation agreement, Shell Petroleum Development Company Ltd paid the entire contract sum and the Defendants (including the Respondent, paid part thereof to the Appellant. That all these pieces of evidence was neither denied nor controverted by the Respondent. That the part payment constituted part – performance of the Respondent’s obligation under the letter of comfort – the Exhibit ‘D’ and that a party who has admitted an act of part performance cannot turn round to contend that the contract was invalid; Section 123 of the Evidence Act, 2011 and the case of Agbareh Vs. MIMRA (2008) ALL FWLR (Pt 409) 559 at 589-590 relied upon.
That the point was made and not responded to by both the Respondent and the Court. That the non-expression of a view by the Court on that submission, was a good reason to appeal against that infraction NTA V. NPA (2013) ALL FWLR (pt 709) 1149 at 1160.
That the evidence and tender of Exhibits ‘’H’ and ‘J’ by the Appellant was pursuant to his averment in paragraph 18 of the further Amended Statement of claim.
Reproducing the caption of Exhibit H and J and the content of Exhibit J thus;“……….”
The Appellants submits specifically as follows:
That if a party makes an admission against interest, the Court will be right to rely on it. That the promise in Exhibit ‘J’ is an admission by the respondent that there was a valid transaction for the supply of one million litres of AGO and that the outstanding balance will be paid to the Appellant.
That the failure of the trial Court to consider the probative value of this evidence that was unchallenged and the contents of Exhibit ‘J’ had occasioned a miscarriage of justice to the Appellant. That the trial Court was under an obligation to act on Exhibit ‘J’ the same being unchallenged.
Udo Vs. Cross River State Newspaper Corporation & Anor (2002) ALL FWLR (pt. 104) 665 at 707. That the trial Judge failed to make any finding in respect of Exhibit ‘J’ which is very germane to the case of the Appellant. Emphatically impressed it on this Court that this had occasioned a miscarriage of justice and that this Court can appraise or re-appraise the said documentary evidence and make the appropriate findings thereon rather than ordering a retrial. That this was particularly so in this matter, where there was enough evidence on the record on which such assessment can be made. That there was the need to “avoid remitting the case unnecessarily for the determination of the Issue”.
Udo Vs. Cross River Newspaper Corporation (Supra) relied upon.
That it was not an issue of improper evaluation of Exhibit ‘J’ (a letter written by the Respondent confirming Exhibit ‘D’); rather the issue was one of total failure by the trial Judge to evaluate the content of Exhibit J and which said failure was perverse to the case of the Appellant.
Ultimately on this issue we have been urged to hold that the part payment of the contract sum and the promise in Exhibit ‘J’ by the Respondent to effect the payment of the outstanding balance of N44,190,140 (Forty four Million One Hundred and Ninety Thousand 140 naira) are binding on the respondent.
On Issue No. 2, it was argued that the trial Court was wrong having held that the Respondent joined Issues with the Appellant by its amended statement of Defence despite the complete failure of the respondent to give evidence in proof of same, proceeded to uphold the averments. It was also argued that the respondent had abandoned his pleadings relating to the delivery date of the Exhibit ‘D’ – “comfort letter and reliance on same by the trial Court was not proper. That the respondent’s counsel was also sure of the consequences of abandoned pleadings to a claim or defence and therefore, rightly submitted thus: ”… …..” at paragraph 4 of page 334 of the record of Appeal.
The learned counsel was categorical that a counsel who has stated that his client’s pleadings have been abandoned cannot turn round to use the facts in the pleadings in his written Address.
That the Court cannot treat abandoned pleadings as joinder of Issues with the life Issues in the Appellant’s statement of claim.
That this Court should discountenance the stand of the trial Court that accepted the argument of counsel on issues not joined, but forming the basis of the trial Judge’s decision.
On Issue 3, whether trial Judge was right when he held that failure of the Appellant to call an official of Dully Shipping and Trading Company Limited to show that Exhibit ‘D’ was not delivered to Dully Shipping and Trading Company Limited as at the time it was made by the Respondent is fatal to the case of the Appellant.
It was contended that the Appellant was not obliged to call Dully Shipping and Trading Company Limited to confirm when it was given Exhibit ‘D’ as it was the Respondent who should state when or prove that it was not delivered to the Appellant by Dully Ltd on 4th February 2011. That the withholding of evidence in this respect offended Section 167 (d) of the Evidence Act 2011.
That evidence of when the Exhibit ‘D’ was given by 2nd Defendant to the 1st Defendant is very crucial and material. Counsel urged that the 2nd Respondent withheld that information because it was unfavourable to it. Okike V. LPDC (2005) ALL FWLR (pt 288) 1054 @ 1080, decided on Section 149 (d) of the Evidence Act (Now Section 167 of the Evidence Act). It was submitted that a person was not bound to call a particular witness in proof of its case.
Relies on Enterprise Bank Ltd V. Meens Nig. Ltd (2015) ALL FWLR (pt 773) 1995 at 2003. Relying further on Section 200 of the Evidence Act, it was submitted that there was no obligation to call any number of witnesses. That it is the Respondent that needed to prove when and how it gave Exhibit ‘D’ to the 2nd Defendant as it said it had so delivered to the 2nd Defendant. It was not for the Appellant to establish that fact. That the trial Judge that had held that the Appellant did not lead evidence on when Exhibit ‘D’ was handed over by respondent to Dully Shipping and Company Ltd, contradicted itself by speculating that if it was handed over on 4th January, 2011, it was the negligence or delay of Dully Shipping and Trading Limited. That there was no evidence on record to show when the Exhibit ‘D’ was delivered to Dully Shipping and Trading Company Ltd by the Respondent. That the manner of arriving on the date of delivery date was speculative.
That the question “If” the said letter was delivered on 4th January, 2011” was raised suomotu by the Court and the parties were not allowed to address on it.
That the issue of delay and negligence was raised by the Court for the first time without given the parties the opportunity to be heard.
That it was not the case of the Respondent that she gave Exhibit ‘D’ to Dully Shipping Company and Trading Ltd on the 4th January, 2011 and the Company delayed or negligently failed to deliver it to the Respondent before the seven days expired. That it was not the case of the Respondent that Exhibit ‘D’ was not probably issued in February 2011, especially when Respondent admitted receiving Exhibit K-K4 dated 1st February, 2011 before issuing Exhibit ‘D’. The Respondent’s case is that whether by commission or omission, the Exhibit ‘D’ dated 4th January 2011, it was no longer valid at the time the Appellant carried out the supply of AGO.
That the Court should have confined itself to the case and Issues raised by the parties and not to speculate or form cases for the parties so that it should not be covered by the dust of the conflict A.S.E.S.A. V. EKWENEM (2009) ALL FWLR (pt 491) 838 at 863 – 864.
That the case of Adebiyi Vs. Umar (2013) ALL FWLR (pt 683) 200 at 2015 relied upon.
ISSUE 4
On this Issue, it was argued that the trial Court was wrong to have held that the Appellant failed to establish his assertions that Exhibit ‘D’ was back dated to 4th January 2011, despite the unchallenged and uncontradicted evidence adduced by the Appellant and the proof of prior and contemporaneous transactions.
The learned counsel referred to the pleadings showing that the original copy of the Exhibit K-K4 (LPO) were submitted to the 2nd Respondent before the Exhibit ‘D’ was issued by it. The Respondent did not deny issuing Exhibit ‘D’ upon receipt of Exhibit K-K4 except to assert that he did not keep the original copies of Exhibit K-K4. Submitted that it was implied that Respondent had admitted seeing the original and/or having a copy of Exhibits ‘K-K4’ before Issuing Exhibit ‘D’.
That having failed to deny the fact that Exhibit K-K4 were submitted to her before issuing Exhibit ‘D’, it is presumed in law that Exhibit ‘D’ was made after the Respondent had sighted Exhibits K-K4. That Exhibit ‘D’ referred to the supply of the million litres of AGO for the sum of N116,000,000 (One Hundred and Sixteen Million Naira) which is the subject matter of Exhibit ‘C’ and K-K4 Exhibits; K-K4 are dated 1st February, 2011 while Exhibit ‘C’ is dated 3rd February, 2011. That the only inference to draw from the acknowledgement of the existence of Exhibits C and K-K4 is that Exhibit ‘D’ was made after Exhibits K-K4 and C.
That the CW1 evidence on the sequence of events from Exhibit K-K4 to C and D was uncontroverted or uncontradicted by the respondent.
The Appellant’s counsel referred us to the suit No. CA/B/290/2005 – MR WILSON ESI VS. CNPC/BGP INTERNATIONAL & ANOR delivered on 29th April 2014. (the certified copy of which Judgment was made available to this Court) to show that it was a perverse conclusion by the learned trial judge in the face of the uncontradicted sworn testimony of the PW1 and the Appellant to hold that the Appellant or his witness did not give evidence that the Appellant supplied within time.
That where documentary evidence supports oral evidence, such oral evidence becomes more credible because documentary evidence serves as a hanger to assess oral testimony. NDAYAKO V. MOHAMMED (2006) 7 NWLR (pt 1009) 655.
It is submitted that Exhibits K-K4 lends more credence to the Appellants case that Exhibit ‘D’ was not issued and served on January 4th, 2011.
The learned counsel wondered why the respondent did not state when Dully Company delivered Exhibit K-K4 to her and also wondered why the Appellant’s witness was not cross examined on the said delivery to the Respondent. That this amounted to an admission of that piece of evidence. Daggash Vs. Bulama (2004) ALL FWLR (pt 212) 1666 @ 1745.
Counsel wondered what the basis of submitting and accepting the invoices was, if Exhibit ‘D’ was no longer valid. The counsel asked the question why the issue of invalidity of Exhibit ‘D’ was not raised at the time invoices were delivered to the Respondent.
The learned counsel referring to Section 34 (1) of the Evidence Act, submitted that the date of Exhibit ‘D’ could not have been correct as it could not have preceded Exhibits C and K-K4.
That where there is ambiguity in a document, the Court is permitted to use the Rules of construction and evidence of prior and contemporaneous transaction and other extrinsic evidence adduced by the parties in ascertaining the true meaning of the contract. SUNNY OSITEZ INTERNATIONAL NIGERIA LTD V. DELMAS & ORS 2015 ALL FWLR (pt 767) page 615 at 736, paragraph A-B. 4.4.15.
That if Exhibit ‘D’ is a guarantee and/or undertaking to safeguard the Appellant in the performance of Exhibit ‘C’, it necessarily follows in law and facts that Exhibit ‘D’ can only be issued after Exhibit ‘C’, as you cannot put something on nothing.
That this is moreso that in the common course of business in Banking transaction, a guarantee or letter of comfort cannot predate a contract it guaranteed. That a letter of comfort is not a letter of intent, which predates a final obligation. That a letter of comfort creates an obligation. The learned counsel argued that the probable date when Exhibit ‘D’ could have been made was 4th February or there about and that the date of 4th January, 2011 was rebuttable in the circumstances.
Relies on Section 157 of the Evidence Act, 2011 on the presumption of the date of the execution of a document being the date thereon the document; but emphasized the need for “independent proof of the correctness of the date if the circumstances are such that collusion as to the date might be practiced and if practiced injure any person or defeat the objects of any law.”
That the Appellant had led credible evidence in line with his pleadings in paragraphs 25 and 26 of the further Amended statement of claim thus;
“——-“
The learned counsel submitted that the Appellant led evidence in proof of these averments which were not denied or cross-examined on the evidence led thereon. That averments on those facts not denied are deemed admitted.
Oyeniyi Vs. Adeleke (2009) ALL FWLR Pt (479) 1902 @ 1922. That the standard of proof in this civil claim was not one required to be beyond reasonable doubt.
A.S.E.S.A. Vs. Ekwenem (2009) ALL FWLR (pt 491) 838 at 857.
That extrinsic evidence could and was led for the existence of fraud, the fact that a document was wrongly dated, existence of mistake of facts or law … which if proved would entitled any person to any Judgment, decree or order relating thereto, to so have his stand upheld.
Awojugbagbe Light Industries Ltd Vs Chinukwe (2004) ALL FWLR (pt 229) 943 at 973 (SC) relied upon and ultimately submitted that Appellant has proved that the date on Exhibit ‘D’ was not the actual date the document was made.
ISSUE 5
Whether from the evidence on record, the letter of comfort (Exhibit ‘D’) is valid for 7 days commencing from the 4th day of January 2011.
It was argued that the trial Court did not state the commencement date of the Exhibit ‘D’ as relating the 7 days validity date it stated and therefore did not address the Appellant/claimants contention that the seven days stated was vague. It is submitted that validity means the state or quality of being valid, soundness as in law and reasoning; consequently, the validity of a document is based on evidence that can be supported, sound, just sufficient and effective in law. Mutual Life & General Insurance Ltd V. Kodi Iheme (2013) ALL FWLR (pt 695).
That the Exhibit ‘D’ was not a letter of offer that needed to be accepted but was a unilateral undertaking granted by the Respondent to the Appellant. It is a unilateral promise. UNITY BANK PLC VS AUTOMATIVE COMPONENT NIG. LTD (2012) ALL FWLR (pt. 610) 1265 at 1303. That it did not also state that the contract must be performed within 7 days from the date on the document or 7 days of the receipt of same.
That clause 4 in Exhibit ‘D’ is silent on when the 7 days start counting. That in the absence of a clear provision of when Exhibit ‘D’ takes effect the Respondent cannot, by any interpretation add to the said clause 4 of Exhibit ‘D’.
The learned counsel submitted that even going by the case of College of Medicine, Unilag Vs. Adegbite (1973) SC, relied upon by the trial Judge to hold that nothing can be added to the Exhibit D beyond its content the trial Judge could not also add to it that it was effective for 7 working days from the date of the letter.
That the Exhibit ‘D’ was addressed to the Appellant by the Respondent and that the fact that Respondent decided to send it through Dully Shipping and Trading Company Limited will only make Dully Limited an Agent of the Respondent for its delivery.
That by Section 36 (b) of the Interpretation Act Cap 123, Laws of the Federation of Nigeria, a posted document is deemed to have been served at the time the envelope containing the document would have been delivered in the ordinary course of post. That a parcel from Port Harcourt in Rivers State to Warri in Delta State through Ago lure parcel services can be delivered same date and/or a period shortly after same was posted and not a period of one month after. That there was no contrary proof that, it was not delivered on 4th day of February, 2011.
That besides, clause 4 of Exhibit ‘D’ is at variance with clause 3 thereof which state that the Respondent will pay the entire sum of N116,000,000 to the Appellant within 10 working days of product delivery by issuance of Bank cheque or Bank Transfer on receipt of the authenticated invoice from Dully Shipping and Trading Company Limited.
That in one breath, the Respondent agreed to pay the contract sum within 10 working days after delivery and in another breath the Respondent is saying that the transaction is valid only within 7 days.
It was submitted that an exception clause in a document only permits evidence which will not be inconsistent with the terms of a document or contract. That it does not allow or permit evidence that will neutralize the commitment of a party under a contract of guarantee. That this Court should hold that the phrase this offer is valid for 7 days is ambiguous, vague and inconsistent with the general terms of Exhibit ‘D’ and that it should be resolved against the respondent, the makers of Exhibit ‘D’. That the clause inserted was akin to a death sentence before birth, a wicked contrivance to castrate the Appellant but to satisfy the mischievous desire of a party who had completely taken advantage of a contract performed by the Appellant but loathes fairness.
That the Court should interpret the clause strictly against the respondent and in favour of the Appellant. On the whole, we have been argued to resolved all the issues in favour of the Appellant and to allow the appeal, set aside the decision of the trial Court and enter Judgment for the Appellant against the Respondent for the balance of N44,190,140 (Forty four Million Naira, One Hundred and Ninety Thousand One Hundred and Forty Naira) and interest of 22% per annum thereon from the 1st day of March 2011 unto the date of Judgment and thereafter interest of 20% per annum until the entire Judgment debt is liquidated.
We have been urged to follow the principal in Stabilini Visinoni Ltd Vs. Metalum Ltd (2008) ALL FWLR (pt. 409) 516 and SPDC Vs Nwabueze (2014) ALL FWLR (pt. 724) 117 at 138 in considering the granting of the pre judgment interest and Order 35 Rule 7 High Court of Delta State (Civil Procedure) Rules, 2009 in respect of post Judgment as done by the trial Judge against the Dully Shipping & Trading Ltd in his ruling on the application for summary Judgment.
RESPONDENT’S ARGUMENTS
On its part, the Respondent formulated four (4) Issues as reproduced earlier in this Judgment.
The Issues are essentially the same as the Appellant’s Issues.
On whether the letter of comfort Exhibit ‘D’ was still valid and subsisting when the claimant supplied and/or carried out the contract having regard to fact that the letter of comfort was in claimant’s custody and that he reproduces the letter of guarantee or comfort thus: “……”
The learned counsel referred to the claimant’s evidence as given in cross-examination by his lone and star. Witness on Exhibit ‘D’ and his educational qualification and ability to read and write including having read Exhibit ‘D’ and submits that oral evidence cannot be used to vary the content of a written document. He submitted further that the contractual relation regulating the respondent and their customer Dully Shipping Limited wherein the interest of the claimant ought to be protected was regulated by a written documentation Exhibit ‘D’. It was argued that where parties have reduced the terms of their agreement in writing in a written document, as in Exhibit ‘D’, extrinsic evidence is not admitted to add, vary or subtract from the terms of the written agreement. U.B.N V. SAX (NIG) LTD (1994) 8 NWLR pt 361, 150, Section 131 (1) of the Evidence Act and the case of ONONUJU VS A.G. ANAMBRA STATE (2009) LPELR SC 29/200 per Aderemi, JSC relied upon.
That the Appellant having admitted that, Exhibit ‘D’ was in his position and he understood it clearly upon reading same before supplying, as he can read and write, and that the said exhibit was not ambiguous. Counsel therefore relying on Baliol (Nig) Ltd V. Navcon (Nig) Ltd (2010) 16 NWLR (pt. 1220) 619 SC per I. F. Ogbuagu, JSC, page 11 paragraph B-C thus:
“The law is that where a document is clear and unambiguous parole evidence cannot be led to contradict it. In other words, extrinsic evidence is basically inadmissible, to add or alter the contents of the document.”
The Respondent’s learned counsel submitted thus:
“It is instructive to point out that the relevant documents in consideration in this matter are the pleadings of the Claimant, documents tendered as Exhibits by the Claimant, witness deposition of the Claimant and evidence obtained from 334 Claimant witness during the cross-examination. The pleadings of the Defendants having not be ignited with the oxygen of evidence and/or starved with the oxygen of evidence is deemed abandoned.”
Aside the total denial of the validity and subsistence of the Exhibit ‘D’ on the ground that it had expired and was of no binding efficacy any longer at the time of the supply which was argued to have been made at the risk of the Appellant, this Respondent proceeded to contend that there was no direct dealings with the Respondent by the Appellant who agreed to have collected the Document (Exhibit ‘D’) from Dully Shipping Company and Trading Company Ltd that applied to the Defendant for the letter of comfort ought to have called its official to show that its delivery was not made on the date thereon. That the extrinsic evidence to show that the date thereon the document was not the date of delivery ought to be proved by the Appellant who had the obligation to call an official of Dully Shipping and Trading Company Ltd to prove the late delivery as alleged.
That this issue be resolved against the Appellant.
On its Issue 2
Whether the learned trial Judge was right when he held that the claimant failed to establish its assertion that Exhibit ‘D’ was delivered to the claimant in February 2011, but was back dated to the 4th day of January, 2011? It was argued that the Appellant/claimant did not establish that assertion. That the burden of proving this assertion was on the Appellant, who asserted so.
That the burden of proof cast upon he that asserts is as fixed by the pleadings and does not shift as it is settled in law as remaining unchanged throughout the proceeding as it remains on where the pleadings place it.
Reproducing the pleadings at paragraph 7 of the Amended statement of claim thus: “and the so-called joinder of Issues by paragraph 7 of the Amended statement of Defence dated 26th March 2013, thus:”
It was submitted thus: “———“
On the whole, it was argued that the Appellant who received Exhibit ‘D’ from Dully Shipping Company and Trading Company Limited through their Bankers, the Respondent and having read and understood it, satisfied that it had expired and yet supplied, took the Respondent out of liability; and that the Appellant cannot turn round to contend that the document was back dated.
That the Issue be resolved in favour of the Respondent.
On the Issue 3 whether the trial Court was right in holding that failure to call on an official of Dully Shipping and Trading Company Limited to show that Exhibit ‘D’ was not delivered as at the time it was made was fatal to the Appellant’s case, it was submitted that the trial Court was right, in so holding; counsel relies on Section 131 of the Evidence Act, 2011 and also argued that if the Appellant was desirous of any further facts on the pleadings, he would have asked for further particulars.
A.G Bendel V. Aideyan (1989) 4 NWLR (pt 116 646 at 40 was also relied on the need for a party desirous of further particulars to apply; else he cannot complain about particulars given which he had not complained about. That Appellant had abandoned his pleadings and same should be struck out. Kaydee Ventures Ltd V. FCT (2010) 7 NWLR (pt 1192) 171 SC relied upon.
That the Respondent shall not be responsible for the negligence or delay of Dully Shipping and Trading Company Ltd contracted by the claimant to supply diesel to Shell Petroleum Development Company. That the issue should be resolved in favour of the Respondent.
On Issue 5,
Whether the learned trial Judge’s failure to evaluate the unchallenged evidence adduced by the Appellant on the act of part-payment of the contract sum to the Appellant and the promise in Exhibit. Exhibit ‘J’ by the Respondent to ensure the payment of the balance sum did not occasion as miscarriage of justice.
That the evidence was properly evaluated; that Exhibit ‘J’ was not an obligation on the part of the respondent to pay the balance sum owed the claimant.
It was submitted that the Respondent’s case consistently has been that they Issued Exhibit ‘D’ on the application of their customer, Dully Shipping and Trading Company Ltd to the Appellant but the Respondent tied their liability to a given date and that supply made outside that date was out of the validity period and invoked no liability against them.
In another breath, it was argued that Exhibit ‘J’ promising payment of the balance did not create an obligation on the part of the Respondent.
That the parties did not at the trial address on Exhibit ‘J’ and therefore, parties should not address on same here as they must maintain the position at the trial Court.
That a Court should not raise an issue suomotu either. That all the documents such as the LPO not addressed on at the trial should not be considered by this Court.
That Exhibit ‘J’ was only tendered as an Exhibit and not submitted as an issue for consideration, and, therefore, cannot be raised as a fresh issue now on appeal without leave of Court to do so. That it is not every issue raised that can be considered by the Court.
Counsel cites the cases of A.G LEVENTIS (NIG) LTD V. AKPU (2007) 46 WRN 1 at 15, ratio 10, Ojoh V. Kamalu (2006) ALL FWLR (pt 297) 976 and COOKEY VS FOMBO (2005) SC. Pt II.
Dwelling still on the prohibition of raising fresh issue on appeal without leave sought and granted, counsel refers to Oseni V. Bajulu (2009) 19 NWLR (pt 1172) 164 (SC); Kadzi International Ltd V Kano Tannery Co. Ltd (2004) 4 NWLR (pt. 864) 545; MGT. ENTERPRISES LTD V OTUSANYA (1987) 2 NWLR pt 55; 179.
That the issue of Exhibit ‘J’ be struck out being “a fresh” issue raised without leave sought and granted as it was not raised and decided on at the trial Court.
It was urged that this issue be resolved against the Appellant and in favour of the Respondent and the appeal be dismissed on the Grounds that;
1. The Exhibit ‘D’, the letter of comfort was not valid and/or subsisting as at the time of supply or performance of the contract as it was in the possession and custody of the Appellant who read same.
2. That the trial judge was right to hold that Appellant failed to establish his assertion of being given Exhibit ‘D’ on 4-2-2011 but which was backed dated to 4-1-2011.
3. That the learned trial judge was right in his view that Appellant failed in his duty to call an official of Dully Shipping Company and Trading Ltd to prove that he was not delivered the Exhibit ‘D’ on 4-1-2011 but 4-2-2011 and that this failure was fatal to his case and fourthly, that the learned trial judge was right in properly evaluating the evidence and coming to the decision that Exhibit ‘J’ did not create an obligation on the part of the Respondent to pay the balance sum owed the claimant.
The Appellant filed a Reply Brief of Argument on 3-1-2019 pursuant to leave to so file granted on 18-2-2019 and in relation to the Issues 1, 2 and 3 of the Appellant as addressed by the Respondent.
It suffices to state that all the arguments raised in the Reply Brief had been argued on the Appellant’s Brief already and the Respondent’s response to them had not raised any new issues or points of law; rather I find the Reply Brief of Argument as a succinct re-articulation or restatement of the salient point’s in the Appellant’s Brief of Argument.
RESOLUTION OF THE APPEAL
In the resolution of this appeal against the Judgment of the trial Court, the salient issues which I find as determinant of the appeal, after a perusal of the Judgment, the Notice and Grounds of Appeal and the issues raised and argued by the parties are the issues as crafted by the Respondent as they are more succinct and capture clearly the issues in controversy leading to the Judgment and this appeal.
There is no gain saying that the resolution of those Issues will resolve all the Issues thrown up by the Appellant. I adopt same for their greater clarity and aptness. (Respondent’s Issue 1 which is similar to Appellants Issue No. 5).
ISSUE 1 OF THE RESPONDENT (ISSUE 5 OF APPELLANT)
Having summarized the arguments of the respective parties on this issue, relating to whether Exhibit ‘D’ – the letter of comfort was still valid and subsisting as at the time of the delivery of the 1000,000 litres of AGO to the Shell, PDC by the claimant, it is obvious that this conclusion can only be arrived at from the evaluation of the content of the Document Exhibit ‘D’ itself relating and the evidence led to the date of the delivery of the 1,000,000, AGO as admittedly made by the claimant. That there was the full and complete supply is not disputed by the Respondent.
Both parties are right when they argued that the contractual terms contained in Exhibit ‘D’ bind the parties thereto and cannot be varied or altered by parole evidence to contradict same. See Section 131 (1) of the Evidence Act, U.B.N Vs SAX (NIG) LTD (1994) 8 NWLR pt 361, 150; ONONUJU V. AG ANAMBRA STATE (2009) LPELR SC. 29/200, BALIOL (NIG) LTD V. NAVCON (NIG) LTD (2010) 16 NWLR (pt. 1220).
I agree with the two learned counsel on both sides as they are one in the fact that the said Exhibit ‘D’ is not ambiguous in the circumstances, and that extrinsic evidence as to what it is, and its date of expiry cannot be led. There cannot be led in evidence the effective date of the letter (Exhibit ‘D’) either, except where there is ambiguity or to bring it in line, with the law relating to the effectuality of the document in law.
There is no doubt that Exhibit ‘D’ dated 4th January, 2011, expresses itself as an offer to the Appellant and which was valid for a period of 7 days only.
The simple question which one may ask is, “if it was an offer as expressed, when was it deemed in law to have been accepted such that a binding contract could in law be said to have been consummated?
It is trite and elementary that in law a contract is said to have been consummated when the offeree accepts the offer. In otherwords, a contract is not in fact and in law consummated merely by the offer; to make the computation of time limited relevant, the date of acceptance must be proved.
The cardinal principal is that the offer must have been communicated to the offeree. In this case, the Respondent led no evidence on when the Exhibit ‘D’ was communicated or received by the Appellant. On the contrary, the Appellant led uncontradicted evidence of the Delivery of the Exhibit ‘D’ and L.P.O.S to it on the 4th February 2011, after which he supplied all the litres of AGO as contracted.
That being the case, the date of the contract (offer) Exhibit ‘D’ being 4-1-2011 and its validity commenced 4-2-2011, being the date of its receipt.
It remained valid 7 days from the 4-2-2011, therefore. What may not, without more, be altered is the presumptive date of when it was written. It was therefore, not within the province of the trial Court to read words into the said Exhibit ‘D’ by construing the date of the letter as the date of the contract as a contract is not consummated by the sheer indication of an offer and its date thereon.
Since the Exhibit ‘D’ as copied on page 390 of the record states at article 4 thereof thus “this offer is valid for 7 working days and is not transferable”, is clear and unambiguous, neither the trial Court nor the parties or this Court could legally interpret the effective date to be 4-1-2011 as that will be to defeat the contractual intention of the parties.
Even then, there was uncontradicted evidence that Exhibits K-K4 and ‘C’ were issued before the Exhibit ‘D’ (which related to them) was made. The presumption is that the earlier date appearing on Exhibit ‘D’ was either in error or ante dated while awaiting its service/delivery at the later date convenient.
The Respondent that issued Exhibit ‘D’ had the duty of showing when it was given to the Dully Shipping and Trading Company Limited for delivery to the Plaintiff/Appellant. There was no evidence given in that regard.
The obligation was cast on the respondent to testify to that fact if indeed it wishes to claim the benefit of the time limited thereon against the Appellant as to the computation (effective date of the document and for of 7 days).
The Appellant has no obligation to so prove beyond the fact and date of the receipt he testified to.
The Oscillating burden of proof had, in the circumstances, shifted to the Respondent that the said Exhibit ‘D’ was not delivered on the date claimed by the Appellant but rather on that date of the writing thereof.
I agree with the Appellant, that the non-tender of evidence in rebuttal of the Appellant’s claimed date and indeed the initial total absence of such evidence from the asserting Respondent, brings its case under Section 167(d) of the Evidence Act, 2011.
That is to say, evidence which would have been led but not given will be deemed to have been withheld because if given, it would be unfavourable to the person who withholds same – in this case, the Respondent.
See Okike Vs LPDC (2005) ALL FWLR (pt. 288) 1054 at 1080, paragraph E-F decided on Section 149(1) Evidence Act (which is in pari material to Section 167 (1) (d)).
That clause 4 of Exhibit ‘D’ undertakes the payment of the entire sum of N116,000,000 to the Appellant within 10 working days of product delivery clearly shows that the validity and essence of the Exhibit ‘D’ was tied to the supply of the products contracted. The Exhibit ‘D’ could not have been made for the fun of it to expire within 7 days from its date without the essence of the contract in view; that is the supply of the diesel.
Contractual documents must be interpreted constructively and meaningfully to give effect to contractual relationship and the purport of the contract. See Omega Bank Nigeria Vs. O.B.C. Ltd (2005) 8 NWLR (pt 938) 547 at 576 where Musdapher, JSC stated the law thus: “… the Courts will seek to construe any documents fairly and broadly without being astute or subtle in finding defects. See: Brown V Gould (1972) 1 Chap 53; Fillas & Co. Ltd V. Arcos Ltd (1932) 147 503; (1932) AER 497. After due consideration of all the circumstances and, if satisfied that there was an ascertainable and determinate intention to contract, the Courts will strive to give effect to that intention looking at the intent and not the mere form.”
The ascertainable and determinate intention of the Respondent in Exhibit ‘D’ is that it will be of validity only upon the delivery of the Diesel ordered. Its commencement date cannot precede the delivery; for that will not be a commercially sensible intention. The Courts will interpret sensibly contra prefential. There was nothing to infer the intention that Exhibit ‘D’ will cease before the supply of the Diesel contracted for which in any case had to be paid for even in equity for goods and services rendered. The Courts will not suffer a wrong to be without a remedy as unjust enrichment is not reckoned. There is nothing on record to show that Exhibit ‘D’ was to expire 7 days from 4 January, 2011 or that it was so agreed to expire as such.
The Appellant is right to contend that any such argument is an attempt to over reach and to perpetuate fraud, which particulars he had pleaded and testified to uncontradicted.
The learned trial judge had held in his Judgment at page 23 thereof (see page 385 of the record of Appeal) thus: “in this case, it is common ground that the letter of comfort given to the claimant by the Defendant – First Bank of Nigeria Plc – the bankers to Dully Shipping and Trading Limited by which the Defendant herein guaranteed the payment of all sums due to the claimant under the contract between the claimant and Dully Shipping and Trading Company Limited is dated January 4, 2011. According to the letter of comfort (Exhibit ‘D’) the Defendant (First Bank) agreed to pay the total contract sum to the claimant after the delivery of 1,000,000 litres of diesel …”
From the above finding of fact and law of the learned trial judge, which has not been appealed against by the Respondent nor denied, the Respondent had guaranteed the payment of the entire contract sum of N116,000,000 for the supply, which had been made undeniably. The only point of departure was the interpretation given to the Exhibit ‘D’ as to the period or duration of its validity. This I had held to be perverse and unfounded in law as the commencement date, if its validity date was an offer was to be reckoned from the date of its acceptance, in this case the date of delivery to the Appellant as testified to be 4-2-2011.
What is more, the attempt at a reference to Section 157 of the Evidence Act 2011, strenuously made (with due respect) to justify the date of Exhibit ‘D’ as being binding and unalterable by fact of Section 131 of the Evidence Act is unavailing as the real issue is not whether Exhibit ‘D’ was not dated on the 4-1-2011. To the contrary, the real issue or question is that the delivery date of the Document Exhibit ‘D’ dated 4-1-2011 was shown by the Appellant’s evidence to be on 4-2-2011 and not on 4-1-2011, which date was not proved by the Respondent to be the date of delivery to the Appellant to enable it to even call in aid the claim to a validity period of only 7 days – for that document.
I have not lost sight of the fact that liability against the Respondent herein was denied and held not to exist on account of the reasoning aforesaid, which I have faulted. I do not agree.
Furthermore, allusion was also made in passing that Exhibit ‘J’ was not an admission of personal liability and that the Dully Shipping and Trading Company Limited should in any event be personally liable for the payment of the contract sum outstanding and claimed.
The argument is a contradiction in terms. How can there be a total denial of the validity of a claim and an acceptance of its existence, but to be liquidated by another person. Parties and nay the Courts must be consistent in their positions at all times. See Kelani Vs Ajadi 2016 NWLR.
Pointedly, I must say, that the Respondent being an adjudged Agent of a principal the Dully Shipping and Trading Company Limited, herein, and having proceeded to guarantee the payment of the contract sum, cannot resile from its undertaking.
To do so, will be unconscionable in law and equity.
Even if the Respondent were an Agent of the disclosed principal, as he insisted to have been, I am of the considered view that Defence is unavailing and does not in the circumstances of the facts led in Evidence and the law exculpate the Respondent from liability in the sum in favour of the Appellant.
In Ataguba Vs. Gura (2005) 126 LRCN 982 at 1007, the apex Court per Edozie, JSC restated the position of the law as follows:
“Admittedly, the general law is that a contract made by an agent acting within the scope of his authority for a disclosed principal is in law, the contract of the principal and the principal and not the agent is the proper person to sue or be used upon such contract.
See Carlen (Nig) Ltd V. Unijos (Supra) at p. 659.
But surely, (underlining mine for emphasis)
If an agent in his name enters into a transaction with another, he can sue and be sued in, respect of that transaction. This is in accord with the views expressed in Chitty on Contracts 28th Edition, Volume 2 page 53 paragraph 32- 087 to the following effect:
“A very important exception to the rule that an agent neither entitled to sue nor liable to be sued on a contract made by him in a representative capacity is to be found where an authorized agent makes the contract in his own name without disclosing the fact that he was acting on behalf of another. On such contracts, he can sue and be sued in his name because he is then to all appearances the real contracting party. See Allen V. F.O.’Hearn & Co (1937) A.C. 213, 218.
In the case in hand, the Appellant by selling the truck to the Respondent and collecting purchase price and issuing receipt thereto in his own name has become the real contracting party to the Respondent.
Consequently, the Appellant is personally answerable for any breach of contract on his part.”
Applying the above binding position of the law supra, to this case, I see the Respondent by Exhibit ‘D’ clearly as a person (party) who had in its name bound itself by Exhibit ‘D’ to personally pay the whole contract sum upon delivery of the Diesel ordered. The Exhibit ‘D’ was addressed by the Respondent directly to the Appellant herein. The Exhibit ‘D’ was reinforced by Exhibit ‘J’ and which did not recile or vary Exhibit ‘D’.
So long as the fact of delivery of the Diesel had been acknowledged, proved and not denied, and in the face of the part performance admitted, the Respondent had no Defence or escape route from liability under the law.
Indeed, the Respondent further admitted the receipt of the invoices for the supply of the AGO and in respect of the contract Exhibit ‘C’ before the issuance of Exhibit ‘D’.
I wonder why this contemporaneous facts, in existence could not be taken into consideration to strengthen the fact that the life span of Exhibit ‘D’ was to commence on the deliveries shown by Exhibit K-K4 relating to Exhibit ‘C’.
I agree with the Appellant’s counsel that an interpretation intended to neutralize the efficacy and purport of an agreed term shall not be allowed by the Courts.
To give an interpretation to the clause 4 of the Exhibit ‘D’ in the manner sought by the Respondent and given a nod of approval by the trial Court, would amount to endorsing the stand that a party may be permitted to breach the fundamental term of a contract under the guise of a narrow interpretation and reliance on a vague and riotous purported limitation that contradicts the essence of the contract. No wonder, therefore, that the Respondent’s learned counsel earnestly and impactfully in respect of Exhibit ‘D’ had submitted in concession in his client’s Brief of Argument as follows:
“Needless to state that the Appellant never requested for further and better particulars regarding the pleading of the Respondent in that regard. It is important to point out here that the only evidence on record is the deposition of the Appellant’s witness and his cross examination as the respondent did not lead evidence; Indeed their pleadings were deemed abandoned and cannot be relied upon as no oxygen of evidence whatsoever was given to give life to it. In the circumstance, the burden is on the Appellant to prove when Exhibit ‘D’ was handed over to Dully Shipping and Trading Company Limited. If indeed it was handed over to them on 4-1-2011 why did they deliver it to the Appellant on 4-2-2011? When the Appellant received it and found out that Exhibit ‘D’ had expired what did he do?”
Clearly from the above, by their admission, Exhibit ‘D’ and its delivery and purport were not contradicted.
They were not challenged? Pleadings in respect thereto by the Respondents were by the ipsi dixit of their counsel abandoned. Their learned counsel had rightly referred to Kaydee Ventures Ltd Vs FCT (2010) 7 NWLR (pt 1192) 171 SC where the apex Court held thus:
“Now the trite position of the law of pleadings is that when an averment has not been supported by evidence that averment is deemed abandoned and must be struck out by the Court.”
Should this honest submission though in contradiction of the counsel’s ultimate stand and thus inconsistent and riotous be jettisoned? Obviously not, as it is well founded in law and applicable to the facts of this case on appeal.
Interpreting Exhibit ‘D’ stricto sensu, I hold that Exhibit ‘D’ issued to Dully Shipping and Trading Company Limited in favour of the claimant was still valid and subsisting as at the time the claimant delivered the 1,000,000 liters of A.G.O.
ISSUE 2
Whether the trial Judge was right when he held that claimant failed to establish its assertion that Exhibit ‘D’ was delivered to the claimant in February, 2011 but was back dated to the 4th January, 2011. (Appellant’s Issue 4)
From the resolution of issue 1, issue 2 has become spent and academic. A spent and academic Issue had no utilitarian value. What is more, whether the Exhibit ‘D’ was back dated or not is not of essence to its content and effectual date of validity in law as relating to the contract for the supply of the 1,000,000 litres of AGO.
The question of backdating as asserted by the Appellant’s learned counsel and disapproved of by the Court cannot in my understanding be more than a mere inference drawn by learned counsel to show that the said document could not have existed before the execution of the contract evidenced by Exhibits K-K4 and proof of the receipts thereof those document contemporaneously with the Exhibit ‘D’;
The Appellant’s evidence of delivery to him on 4-2-2011 was not rebutted.
The Issue 2 of the Respondent, which is Appellant’s Issue 4 is resolved in favour of the Appellant.
I shall, however, also treat the Appellant’s Issue number 2, albeit Briefly, whatever may be its worth so as to cover the entirety of all the Issues formulated in this appeal by the parties herein, notwithstanding that it has been covered and treated in the resolution of the other issues.
APPELLANT’S ISSUE 2 which queries the trial Judges findings that Issue had been joined by the parties on their amended process and proceeded to find for Respondent’s when it had not testified to its pleaded averments in respect of which issues were said to have been joined.
That in the state of the pleadings untestified to, they were abandoned pleadings and which could ground no Judgment or be acted upon.
That the trial Court, wrongly reckoned with the pleadings as if they were evidence led.
The Appellant was right in so arguing, as the pleadings of the delivery of the Exhibit ‘D’ to the Appellant as pleaded by the Respondent was not testified to in evidence.
The assertion in the pleadings, not testified to were deemed abandoned and the trial judge was not right to find in favour of the respondent in that regards.
ISSUE 3
Whether the failure of the Appellant to call on the official of Dully Shipping and Trading Company Limited to show that Exhibit ‘D’ was not delivered to Dully Shipping Company Limited as at the time it was made by the Respondent was fatal to the case of the Appellant.
The Court was clearly wrong in so holding.
The Appellant as Plaintiff had pleaded at paragraph 7 of its further amended statement of claim that Exhibit ‘D’ though dated 4th January, 2011 was served on it 4th February, 2011 together with purchase orders through Agofure Parcel Services Port Harcourt, Rivers State, at Warri, Delta State.
This averment which was not disproved was testified to uncontradicted.
Indeed, all that the Respondent did in this respect is an admission that it delivered Exhibit ‘D’ to the 1st Defendant and was not a privy to when and how it was delivered to or received by the claimant.
That the Appellant had given evidence of when it received the Exhibit ‘D’ is obvious. The Respondent did not plead nor grave evidence on when it gave the Exhibit ‘D’ to Dully Shipping and Trading Company Ltd nor when it was subsequently delivered to the Appellant.
Respondent was silent on the two vital dates. It did not by its amended statement of Defence deny the date of delivery as asserted by the claimant on the receipt on 4-2-2011. The learned counsel for the Appellant was correct both at the trial Court and in this Court when he submitted that rather than proffer that evidence the Respondent who embarked on the withholding of evidence which is presumed to be against its interest is insisting that the Exhibit ‘D’ was not received by the Respondent on 4-2-2011 and that if it was, it was the negligence of Dully Shipping Company Limited as the validity of the Exhibit ‘D’ had expired and that Appellant had not called an official of Dully Shipping Company Ltd to prove that the Exhibit ‘D’ was not delivered on 4-2-2011.
I have no hesitation in agreeing with the Appellant that a party is not bound to call a particular witness in the proof of its case.
The Appellant is right when he submitted vide page 9 paragraphs 4.38 to page 12 of his Appellant’s Brief of Argument to that effect.
See Section 200 of the Evidence Act, 2011.
Enterprise Bank Ltd Vs. Meens Nigeria Limited (2015) ALL FWLR (pt 773) 1995 at 2003.
The Respondent did not plead or testify to the date of delivery of Exhibit ‘D’. if he had done and if denied, then the evidential burden would have shifted to the Appellant.
It is only in that circumstance that it could be expected to call a staff of Dully Shipping and Trading Company Ltd to prove the delivery to it; and if denied, may be treated as a hostile witness and another called. In this instance, no burden had arisen on the Appellant to call the Dully Shipping and Trading Company at all.
The Appellant had testified to the date of the delivery to it already and therefore had no obligation, in law, to call any further evidence on that facts; and more so that it must not be proved through an official of Dully Shipping and Trading Company Limited. A party has no duty to call a host of witnesses to prove it case. See Okoroji V. State (2005).
Indeed, by Section 131 of the Evidence Act, whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
The burden of proof was therefore on the Respondent to prove the delivery as averred by its Amended statement of Defence per paragraph 21 thereof.
The Appellant had no burden or duty to further prove the delivery already proved by it, by calling an official of Dully Shipping and Trading Company Limited.
The burden of proof lay squarely on the Respondent. The trial judge was wrong to have held to the contrary; therefore, the judge was being speculative and uncertain in this regard as he prevaricated when he held that if Exhibit ‘D’ was handed over on 4-1-2011, then Dully Shipping and Trading Company was liable for the delay or negligence of delivery of Exhibit D to the claimant.
From the aforesaid inconsistency – see Kelani Vs Ajadi 2016 SC 1, which is prohibited in law for both parties and the Courts, “it must be pointed strongly that delay and negligence in the delivery of Exhibit ‘D’ does not erode liability under the document or abrogate a contract, other than, perhaps, create a right for damages or rescission. None of these remedies was sought; In any case, the Appellant even then could not have been liable or suffer for the default or negligence or delay of the Respondent’s customer, the Dully Shipping and Trading Company!
The Respondent, having undertaken by Exhibit ‘D’ to be bound by same and to pay the contract sum on delivery and delivery having been proved, the delay on negligence of Dully Shipping Company and Trading Company Ltd, if any, will not nullify Exhibit ‘D’ and vacate the Respondent’s liability under it, in view of its undertaking.
The Respondent cannot, by any guise of denial of liability seek to shift the burden of proof to the Appellant. The non-calling of Dully’s agent by Appellant was not fatal to its case.
Issue 3 is resolved against the Respondent and in favour of the Appellant.
ISSUE 4
“Whether the failure of the trial Judge to evaluate the unchallenged evidence by the Appellant on the act of part payment of the contract sum to the Appellant and the promise in Exhibit J by the Respondent to ensure the payment of the balance sum did not occasion a miscarriage of justice.”
The Respondent had argued that the trial Court was right and had evaluated the evidence led and found rightly that there was no obligation created by Exhibit ‘J’. On the Respondent to pay the balance of the admitted contract sum. That it was a mere acknowledgement of the letter with a view to communicating the 1st Defendant/respondent. Dully Shipping and Trading Company Ltd to offset its indebtedness.
There is no doubt that by Exhibit ‘J’ the Respondent by its letter of 30th June, 2011 had acknowledge receipt of letter demanding the payment of the balance sum claimed and informed the Appellant of the promise of Dully Shipping and Trading Company Limited to pay up latest by the end of the August 2011.
There is no doubt that the words used in the said letter Exhibit ‘J’ are clear and unambiguous and must be given their ordinary meaning. See Amasike V. Registrar General CAC (2010) 13 NWLR (pt 1211) 337 SC. However, this is as relating to the purport and content of the Document only.
If anything, it amounts to the acknowledgement of the existing balance of the indebtedness of the Dully Shipping and Trading Company Ltd for the supply made and in respect of the full delivery of AGO.
The Exhibit ‘J; clearly admits and states thus “we refer to our earlier letter on the captioned subject for delivery of AGO on behalf of our customer – Dully Shipping & Trading Limited and advise that we have liaised with the customer as promised on how to effect the payment…”
The Exhibit ‘J’ was tendered and constituted part of the documentary evidence before the Court and the Court was bound to evaluate same in the light of the evidence led.
A proper evaluation of same showing the acknowledgement of the balance of indebtedness in respect of the contract, the acknowledgement of part performance on the part of the Dully Shipping and Trading Company Limited and reconfirmation of its promise to pay the balance due latest by the end of August had created a valid and enforceable contract.
The liability of the Respondent under Exhibit ‘D’ has been further re-enforced and re-invigorated by Exhibit ‘J’ where it stated that they have liaised with the customer as promised on how to effect the payment.
It was not a denial of liability or restatement of a sole liability on the part of Dully Shipping and Trading Company Limited, but indeed an admission of the Respondent’s obligation under the contract Exhibit ‘D’.
It is not correct as submitted by the Respondent that a Court cannot make a pronouncement on all documents (Exhibits) placed before it; that the Appellant did not address the Court or make Exhibit ‘J’ an issue before it and that Courts are enjoined to limit their considerations to facts and exhibits that were made an issue and limit themselves to issues or the case as made at the trial Court.
It is obviously stretching the position of the law beyond its elasticity as justice will never be achieved by embarking upon such a skewed view of evaluation of evidence as the Respondent’s learned counsel herein is advocating. A Court of law and justice will not embark on the doing of cloistered justice.
It is a cardinal principle of the law that all evidence led and which includes documentary Exhibits tendered by the parties, shall be examined meticulously by the Courts and where admissible and not otherwise prohibited, shall determine what weight shall be placed thereon in proof of or in disproof of the case as may be appropriate.
Indeed, it is also within the province of the Courts to draw such inferences from facts or documents put in evidence such as an acknowledgment of indebtedness, whether in whole or part and as relating to a contract for it to hold that the contract still subsisted and was valid and enforceable and the value or debt due.
The only point left is that part performance creates a situation of a right to specific performance, which is the enforceability sought therein by the action at the trial Court.
There was indeed no situation at all, at the trial Court, that was anything near the scenario sought to be created by the Respondent’s counsel that a fresh or new Issue had been raised in this appeal by the Appellant as relating Exhibit ‘J’ and that the trial Court was not wrong to have discountenanced the Exhibit ‘J’ which (according to the learned counsel) is being raised again suomotu and without leave of Court.
I need to say that Exhibit ‘J’ and the Exhibits K-K4 which the Respondent’s learned counsel contends as being “Issues” are, in fact and in law not really “Issues”, let alone being “new” or “fresh Issues”.
They are, rather, material pieces of evidence that existed at the trial and coalesced into facts which the trial Court was not only entitled to evaluate, examine and ascribe probative value and weight thereto; and to also draw such inference and use them as hangers upon which oral evidence could be assessed.
This Court cannot shirk from its duty to evaluate documentary evidence. See also BFI Group Corporation V. Bureau of Public Enterprises (2012) LPELR 9339 (SC) on the duty of the Court to consider all documents, correspondences with oral evidence to arrive at a decision.
The red-herring posture of the Respondent in its Issue 4, which is the same as Appellant’s Issue is un-impressive.
This must be, as the contract between the parties as in Exhibit ‘D’ is not ex-facie illegal nor does it offend public policy. Such a contract, strengthened and supported by the abundant evidence of facts that had activated it, will be enforced by the Courts between the parties thereto. See S. A. Akintan JSC in West Construction Co. Vs. Santos (2006) 26 NSCQR 556.
The failure to evaluate and invoke the Exhibit ‘J’ and evidence of the part payment, had, for all I have said above, occasioned a miscarriage of Justice.
Appellant’s Issue 1 which is Issue 4 of the Respondent is therefore resolved in favour of the Appellant and against the Respondent.
In the light of the foregoing and having resolved all the issues in favour of the Appellant, it is my judgment that this appeal is pregnant with merit and it is allowed wholly.
For the aforesaid, the Judgment of the High Court of Delta State of Nigeria in the Warri, Judicial Division Holden at Warri and delivered on the 13th day of October, 2014 by His Lordship M. C. Okoh, J in suit No. W/279/2012 between the SATCH OIL NIGERIA LIMITED AND FIRST BANK OF NIGERIA PLC is hereby set aside.
There was no evidence led in respect of the interest claimed at the rate of 22% per annum on the Judgment sum until Judgment. As no double compensation shall be awarded, but rather, restitution to put the Appellant where he would have been, the said interest claimed is refused. As for the post Judgment interest claimed at the rate of 20%, until liquidation, I do grant same as the High Court of Delta State (Civil Procedure) Rules, 2009 permits same.
Accordingly, I substitute and enter judgment for the Appellant, Satch oil Nigeria Limited, the claimant at the trial Court against the Defendant/Respondent herein per its Amended Statement of claim dated and filed on 23/05/2013 and specifically thus:
1) “payment of the sum of N44,190,140 (Forty Four Million, One Hundred and Ninety Thousand, One Hundred and Forty Naira) only as the balance of the contract sum for the supply of Diesel made is hereby decreed.
2) 20% interest per annum on the Judgment sum until the entire Judgment debt as adjudged is fully paid, pursuant to Order 35 Rule 7 of the High Court of Delta State (Civil Procedure) Rules, 2009.
3) I award a cost of N10,000 (Ten Thousand Naira only) as costs at the trial Court and N500,000 (Five Hundred Thousand Naira only) as costs in this Court, in favour of the Appellant against the Respondent.
The Appeal is allowed.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I had the privilege of reading in draft the leading judgment prepared in the instant appeal by my learned brother. MOHAMMED A. DANJUMA, JCA. This is to state that I am in complete agreement with his Lordship regarding the issues for the determination of the appeal and the reasoning and conclusions reached in respect of the said issues.
Accordingly, I too find the instant appeal to be meritorious and allow same. I abide by the consequential orders in the leading judgment including the order as to cost.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the opportunity to read in advance the lead Judgment of my learned brother, MOHAMMED AMBI-USI DANJUMA, JCA, and I am in agreement with the Judgment, and find that the reasonings and conclusions therein have covered the field. I have nothing more to add.
I join my learned brother in allowing this appeal and judgment of lower Court is set aside.
I also abide by all consequential orders made therein.
Appearances:
A. Akpomayomare Esq. For Appellant(s)
R. Nwalia, Esq. For Respondent(s)
