TOBENNA UDEAGU v. BENUE CEMENT COMPANY PLC.(2005)

TOBENNA UDEAGU v. BENUE CEMENT COMPANY PLC.

(2005)LCN/1717(CA)

In The Court of Appeal of Nigeria

On Thursday, the 7th day of April, 2005

CA/J/187/99

RATIO

EVIDENCE: WHETHER FACTS ADMITTED NEEDS FURTHER PROOF

It is trite law, that facts admitted need no further proof. (See section 74 of Evidence Act). See also Okparaeke v. Egbuonu (1941) 7 WACA 53; Nwizuk v. Eneyok (1953) 14 WACA 354; Din v. African Newspapers Ltd. (supra). PER SANUSI, J.C.A.

EVIDENCE: WHETHER A TRIAL CAN PRESUME WITHHOLDING OF EVIDENCE WHERE A PARTY FAILS TO PRODUCE IT

I think in the surrounding circumstance the lower court should have presumed under section 149(a) and (d) of Evidence Act, that the respondent withheld the production of the agreement the appellant said he signed and gave to the defendant to sign, because if the latter had produced it, it would be unfavourable to it. See In Re: Adewunmi & Ors. (1988) 3 NWLR (Pt. 83) 483 at 500; Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt. 70) 325 at 342. PER SANUSI, J.C.A.

JUSTICES

AMIRU SANUSI Justice of The Court of Appeal of Nigeria

IFEYINWA CECILIA NZEAKO Justice of The Court of Appeal of Nigeria

IKECHI FRANCIS OGBUAGU Justice of The Court of Appeal of Nigeria

Between

TOBENNA UDEAGU – Appellant(s)

AND

BENUE CEMENT COMPANY PLC. – Respondent(s)

SANUSI, J.C.A. (Delivering the Leading Judgment): The appellant as plaintiff, filed a writ of summons against the defendant company as respondent herein, claiming the undermentioned reliefs as per his amended statement of claim and his amended writ of summons. The reliefs sought by the plaintiff/appellant against the defendant at the Benue State High Court, sitting in Otukpo (the lower court) are as follows:-

(i) Loss of profit per month at the rate of N117.60k per bag for 2400 bags for one month, that is, two hundred and eighty thousand, two hundred and forty naira (N280,240:00k).

(ii) Loss of profit to the plaintiff is ten million, one hundred and sixty thousand, six hundred and forty Naira (N10,160,640:00k) at the rate of N282,240:00k per month.

(iii) Particulars of loss suffered by plaintiff as special damages are as follow:-

(a) Rent paid for warehouse at the rate

of N3,000 per month for 36 months … N108,000.00k

(b) Salaries of four staff at the rate

of N500.00k per month (N2,000.00k) for 36 months …..N72,000.00k

Sub Total N210,000.00k

General Damages N10.160.640.00k

Total N10.370.640.00k

The facts that gave rise to the action at the lower court can be summarized thus:-

The defendant/respondent company advertised in a newspaper called “Voice’, inviting people to place tender for appointment as distributors of their product i.e. brand of cement called “Lion”. On reading the advertisement, the plaintiff became desirous of being a distributor of the respondent company, hence he applied to the defendant/respondent company and was ultimately appointed a distributor in category “B” vide a letter written to him by the company which was exhibited at the trial as exhibit ‘A’. In the said letter, he was advised to sign a formal agreement with the defendant company and was also directed to pay N30,000.00k deposit after which the defendant would be supplying him with 120 tones (i.e. 2,400 bags) of “Lion” cement monthly. He complied with the directive and paid the N30,000 deposit which said sum was also accepted by the defendant and a receipt exhibit B, was issued to him by the defendant as evidence of payment of the deposit. Again as directed, the plaintiff/appellant signed a formal agreement with the defendant wherein it was also stated that the duration of the contract agreement for the distributorship was to last three years (or 36 months).

On 1/9/1993, the plaintiff was issued with allocation paper (exhibit C) for the months of September, October, November and December, 1993. Sequel to that, the plaintiff alleged that he rented a warehouse for the three years duration of the contract at the rate of N3,000 per month and employed three sales boys and a sales girl and fixed them on monthly salary of N500.00k each. To his utter dismay, the plaintiff said that he on 23/12/1993 read in the same “Voice” newspaper that his distributorship agreement was terminated by the defendant company without any reason. Disenchanted with that development, the plaintiff decided to sue the defendant company at the lower court and sought the aforementioned reliefs. Pleadings were ordered, filed and exchanged by both parties. Hearing later commenced in earnest and in the end the lower court found against the plaintiff in favour of the defendant company.

Aggrieved by the decision of the lower court, the plaintiff appealed to this court. In compliance with the practice obtained in this court, briefs were filed by parties. The appellant’s brief of argument was filed by his counsel and in the said brief of argument, two issues for determination of the appeal were identified and the Issues are:-

(1) Whether on a proper consideration and interpretation of exhibits ‘A’, ‘B’ and ‘C’ in this case, there exists an enforceable contract between the appellant and the respondent. (Tied to grounds 1 and 4).

(2) If the answer to issue 1 above is in the affirmative, was the appellant entitled to the items of reliefs claimed by him? (Relates to grounds 2 and 3).

The respondent on the other hand did not propose any issue for determination separate from those formulated by the appellant but it instead adopted the two issues contained in the appellant’s brief as set out above. Naturally, I have to be guided by the appellant’s briefs of argument in determining this appeal. I intend to consider the two issues seriatim in treating the appeal.

On the first issue for determination, it was submitted on behalf of the appellant that from the contents of exhibits ‘A’, ‘B’ and ‘C’ there was a valid and enforceable distributorship contract entered into between the two parties. He argued that these three exhibits gave rise to the signing of formal contract agreement and the respondent/ defendant never denied the existence of these exhibits or denied issuing them either in their pleading or oral evidence, hence they should be taken as having been admitted by the defendant. See Joseph Mangtup Din v. African Newspapers of Nigeria Ltd. (1990) 3 NWLR (Pt. 139) 392 at 405. He added that in the circumstance of this case, there was an offer and acceptance which crystallized into a binding contract agreement between the two parties which was also clearly demonstrated by the conduct of the parties, their words, action and the exchange of correspondences. See Majekodunmi v. National Bank (1978) 3 Sc. 119 at 129; Union Bank of Nigeria v. Prof Albert Ojo Ozigi (1991) 2 NWLR (Pt. 176) 677 at 694. He added that words contained in documents or correspondence should be construed by court as they stand in deciding whether two parties have reached consensus or agreement on what the parties are bound by. See Nwangwu v. Nzekwu (1957) SCNLR 61; Amizu v. Nzeribe (1989) 4 NWLR (Pt. 118) 755. He finally submitted on this point, that on proper construction of exhibits ‘A’, ‘B’ and ‘C’ and the oral evidence given on the contents of the contract agreement which was signed and taken away by the respondent, there was an enforceable distributorship agreement duly entered by the parties which the respondent/defendant withheld and that such contract agreement was breached by its publication in the “Voice” Newspaper of 23/12/93 that the said contract had been revoked. See Obaike v. Benue Cement Company Plc. (1997) 10 NWLR (Pt. 525) 435 at 448/449 A-E.

On his part, the learned Counsel for the respondent submitted that exhibit A was a letter of provisional appointment as distributor only by its paragraph one. He said paragraph 2 of same stated that there was the necessity of signing an agreement with the company (defendant) upon acceptance of the provisional offer of appointment. He said since the appellant admitted that the defendant had got to sign and seal the agreement which he (appellant) had claimed to have signed, the trial Judge was right in his finding that there was no formal contract agreement signed by both parties as there was no mutual assent, hence there was no enforceable contract binding the parties. He said where a party alleges the existence of a fact. The onus is on him to show or prove such facts. See Okubule v. Oyagbola (1990) 4 NWLR (Pt. 147) 723 at 736 D; Coker v. Ajewole (1976) 1 NMLR 178 at 183; Innih v. Ferado Agro and Consortium Ltd. (1990) 5 NWLR (Pt. 152) 604 at 627 (E -F); Petroleum Training Institute v. Uwamu (2001) FWLR (Pt. 70) 1567 at 1578/1579, (2001) 5 NWLR (Pt.705) 112. He further argued that in contract agreement, the offeror has a duty to establish that the offer was accepted by the offeree in accordance with the mode stipulated, if the mode of acceptance is specified in offer. See Afolabi v. Polymera Industries (Nig.) Ltd. (1967) 1 All NLR 144; Petroleum Training Institute v. Uwamu (supra). The learned Counsel for the respondent further submitted that in the instant case, the essential ingredients of enforceable contract were absent due to lack of signing and sealing of the written agreement forming the foundation of the relationship between the parties as recited in exhibit A, as well as the lack of acceptance of payment by the defendant/respondent company. See also, UBA Ltd. v. Tejumola & Sons Ltd. (1988) 2 NWLR (Pt. 79) 662 at 700 (C-D). It is not in dispute between the parties that exhibit ‘A’ which was tendered and admitted in evidence at the trial without any objection from the defendant is a letter by the defendant/respondent wherein it appointed the appellant as a distributor of cement of the defendant company. The defendant/respondent had admitted the facts conveyed in the exhibits A, B and C both in its pleading and oral evidence in court through its sole witness. It is trite law, that facts admitted need no further proof. (See section 74 of Evidence Act). See also Okparaeke v. Egbuonu (1941) 7 WACA 53; Nwizuk v. Eneyok (1953) 14 WACA 354; Din v. African Newspapers Ltd. (supra).

It is instructive to note that paragraphs 2, 3 and 6 of exhibit ‘A’ explicitly made clear the purport of the letter of appointment. The relevant paragraphs are reproduced hereunder:

Para. 2-

“If you accept the offer, you must on or before the 31/8/93 come to the office of the Assistant General Manager (commercial) at the factory premises and sign an agreement with the company.

Para. 3 –

On signing the agreement, you are required to pay a deposit of N30,000.00k and in addition pay for 120 tones being your probable monthly allocation actual delivery however, depends on availability.

Para. 6-

Other conditions for your appointment are contained in the agreement referred to in paragraph 2 above.”

(emphasis mine)

To my mind, exhibit ‘A’ amounts to an offer and since the offeree complied with the stipulations or conditions stated therein, the important factors that make a contract binding or enforceable can be said to have been concluded. In the instant case, uncontroverted evidence abound that the appellant paid the N30,000.00k deposit vide exhibit ‘B’. The plaintiff/appellant also led evidence showing that he had reported at AGM (commercial’s) office, where he signed an agreement. Although, the agreement was not tendered at the proceeding because the respondent refused to produce it despite being served with appropriate notice to do so, the trial court was in my view, very correct in allowing the appellant to give oral evidence of its contents. See Da Rocha & Anor. v. Hussain (1958) 3 FSC 89 at 92, (1958) SCNLR 280; Olanrewaju v. Gov. of Oyo State (1992) 9 NWLR (Pt. 265) 335. The learned Counsel for the respondent however argued that since by paragraph (6) other conditions contained in the agreement must be fulfilled, it could not therefore be correct to say that the contract agreement was really assented to as there was no evidence that it was signed by the defendant as alleged by the plaintiff/appellant. It is noted by me that when the trial court allowed the plaintiff (appellant) to give oral evidence on the contents of the agreement which the defendant/respondent withheld, the former testified that he signed the contract and gave same to the respondent to sign and the respondent undertook to send copy to him but did not do so despite his (plaintiff’s) demand.

The learned trial Judge at page 48 lines 16 – 23 in making comparison and evaluation of the testimonies of PW 1 (the plaintiff) and that of DW 1, the sole witness called by the defendant, the lower court found as follows:-

“It is for these reasons that I believe the oath of the plaintiff and reject DW1’s oath to find as a fact that the plaintiff signed the formal agreement for the distributorship in the office mentioned in clause 2 of exhibit ‘A’. His evidence that upon signing the formal agreement, defendant’s agent took the two copies of it away for their signature and sealing never to return his copy back to hi m were uncontradicted and unchallenged. DW1’s evidence did not cover it as well as the averments in the statement of defence. Accordingly I find, these facts proved. (Italics emphasis mine).

I note with regret, and I am even bewildered as to why the learned trial Judge after finding the facts proved as he stated above later, somersaulted and ate his own words and held on the same page 48 lines 25 – 25 as below:-

“The onus was on plaintiff to prove that Defendant Company signed the formal agreement. He failed in that regard. Mutual assent of both parties was needed to conclude the contract. I find no evidence of the mutuality of assent for materialization of the negotiations started in exhibit ‘A’. Based on the absence of the meeting of their respective minds in respect of the formal contract of distributorship which was to be struck by the plaintiff and defendant company jointly signed a contract document, I hold that no enforceable contract was made thereby”.

The sudden U-turn or somersault by the learned trial Judge in the above finding is perturbing. Why he contradicted himself is what still remains very unclear to me. Your guess as to why he did so is as good as mine.

Be that as it may, and with due respect to the learned trial Judge, a proper evaluation of the evidence adduced by the plaintiff e.g. exhibit ‘A’ clearly showed that the plaintiff was to go to AGM (commercial) office to sign the agreement and he confirmed that he went there and did sign the agreement. Although, DW1 said no agreement was signed, the question is “Why did the company send the letter of allocation of cement to him i.e. exhibit ‘C’, if no such agreement was reached? Again, on the number of cement allocated to the plaintiff i.e. 180 bags for the three months, I think that point is of no moment since by paragraph 3 of exhibit ‘A’ it was stated that “actual delivery however depends on availability” of the product. Therefore, it is immaterial to say that because 180 tones were allocated to the plaintiff/appellant by the defendant/respondent there was no enforceable contract agreement. By paragraph 3 of exhibit A, the defendant could allocate any quantity below the monthly allocation of 120 tones it undertook to be supplying the plaintiff depending on the availability of the product. If there had not been an enforceable contract between the plaintiff/appellant and the defendant/respondent, the latter company would not have sent letter of allocation i.e. exhibit ‘C’ to him. To my mind, by sending the letter of allocation to the appellant, it can be inferred that there had been a binding and enforceable contract agreement between the two parties. For the defendant/respondent to refuse to accept payment for the quantity of the cement it allocated to the appellant and then proceed to terminate the contract on pages of newspapers, I think the defendant company is in breach of the contract agreement of distributorship. By the contents of exhibits ‘A’, ‘B’ and ‘C’, I am of the view that an enforceable contract between the appellant and the respondent existed. I therefore resolve the first issue in favour of the appellant herein.

On the second issue for determination which relates to claim of damages, the learned Counsel for the appellant submitted that in cases of breach of contract, assessment of damages is calculated on the loss sustained by the injured party, which loss was either in the contemplation of the parties or the unavoidable consequences of breach. He cited the cases of Shell B.P. v. Jammal Engineering Ltd. (1974) 4 Sc. 33; Ijebu Ode L.G. v.Adedeji Balogun & Co. (1991) 1 NWLR (Pt. 166) 136 at 158. The learned Counsel also submitted that all the claims for damages made by the plaintiff/appellant were not only pleaded, but also were duly proved by evidence. He also said that the respondent/defendant did not deny any of such claims but even admitted them and the lower court made its finding in that regard even though it refused to award the damages claimed by the plaintiff/appellant.

The learned appellant’s counsel further argued that the learned trial Judge was wrong when he held that the appellant ought to have mitigated his loss on seeing exhibits L and L2 i.e. the newspaper revocation of the contract agreement. He cited and relied on the cases of Obaike v. Benue Cement Co. Plc. (1997) 10 NWLR (Pt. 525) 435 at 448/449; Maximun Insurance Co. Ltd. v. Owoniyi (1994) 3 NWLR (Pt. 331) 178 at 195 C-D; Onwuka v. Omogui (1992) 3 NWLR (Pt. 230) 393; Kosile v. Folarin (1989) 3 NWLR (Pt. 107) 1.

The learned Counsel for the appellant also submitted that the appellant led credible and uncontroverted evidence to prove all the losses or damages he claimed. He said the onus is on the respondent to prove that the appellant’s losses could have been avoided, which onus the respondent had failed to discharge. He cited A.-G., Oyo State v. Fairlakes Hotels (No.2) (1989) 5 NWLR (Pt. 121) 255 at 284 para. G. On that note, the learned appellant’s counsel urged this, court to award all the damages he claimed since he had established his case.

The learned Counsel for the respondent in his reply, submitted that the plaintiff/appellant was not entitled to the damages he claimed since it is trite law that where there is no enforceable contract no damages can flow since there is no any breach. See Orient Bank of Nigeria Plc. v. Bilante International Ltd. (1997) 8 NWLR (Pt. 515) 37 at 95; Petroleum Training Institute v. Uwamu (supra).

He further submitted that the plaintiff must always take all reasonable steps to mitigate the loss caused to him consequent upon the defendant’s wrong and can not recover damages for any such loss which he could have avoided by his action or inaction. He relied on Okongwu v. NNPC (1989) 4 NWLR (Pt 1I5) 296 at 319 F-G. He said in this instant case, the plaintiff failed to take steps to mitigate his loss upon the repudiation of the contract by the defendant which he had notice of vide exhibit 1.The learned Counsel for the respondent also argued that the respondent company, was never informed about the transactions such as the hiring of shop, employment of staff etc. I had, when treating the first issue for determination, held that from exhibits A, B and C and the entire surrounding circumstances of the instant case there had been a valid and enforceable contract agreement entered into by the two parties. It had also been proved by the appellant that the defendant/respondent had breached the said contract by its action and the revocation of same. It goes without saying therefore, that damages for breach must accrue since damages I for breach of contract is aimed at restoring the plaintiff as far as money can do, into his previous position in which he would have been if the breach had not occurred. In other words, damages in breach of contract is restitutio in integrum (see Universal Valcanising (Nig.) Ltd. v. IUTTC (1992) 9 NWLR (Pt. 266) 388). The rule governing the award of damages for breach of contract is that, where the parties have made a contract and one of them breached same the damages which the other party ought to receive in respect of the breach should be as may fairly and reasonably be considered either as arising naturally, i.e. according to the usual course of things from the breach itself, or such as may reasonably be supposed to have been in the contemplation of the parties at the time they made such contract as the probable result of the breach of it. See Kusfa v. United Bawo Construction Co. Ltd. (1994) 4 NWLR (Pt. 336) 1; Taiwo v. Princewill (1961) All NLR 240; FBN Plc. v. Excel Plast. Ind. Ltd. (2003) 13 NWLR (Pt. 837) 412; UBA v. Folarin (supra).

It is on this premise, that I deem it necessary to consider each of the items of claims for damages made by the appellant/plaintiff and determine which of them he is genuinely entitled to. In the first place, the appellant claimed N282,240.00k as loss of anticipated profit for 2,400 bags of cement at the rate of N 117.60k per bag of cement. I am of the view that he is not entitled to such claim since the defendant company stated in clause 3 of exhibit ‘A’, that such supply of cement depended on the availability of the product. It would therefore appear to me unrealistic for the appellant to claim damages on same for a projected period of three years. Since the defendant had in clause 3 of exhibit ‘A’ said the supply was conditional, I do not deem it proper for the plaintiff/appellant to make such projected claim. To me, the only period on which his claim could be accommodated is from 23/8/1993, (the date the contract agreement commenced) to the 23rd December, 1993, (the date he read about the termination or repudiation of the contract by the defendant/respondent). In otherwords, for a period of four months only. That is to say N282,240.00k per month for 4 months totaling N1,128,960.00k. On the rentage of warehouse claimed for a period of 3 years, I equally regard it as unreasonable. I am unable to see the necessity for the plaintiff to continue to be paying for empty shop for such whole period knowing fully well that the purpose for renting such shop no more existed with the termination of the contract. The period should also be limited to four months only at N3,000.00 per month totalling to N12,000:00k. As for the N30,000.00 deposit, the plaintiff/appellant is surely entitled to the refund of same. With regard to the salary for the four staff employed by the appellant for 36 months at N2,000.00 per month, I also do not see the justification for the claim for up to 36 months. Although, there is evidence adduced by the plaintiff/appellant that he entered into contract for employment of the four support staff, there is no evidence shown that they were paid in advance for the whole 36 months as it will even be unreasonable and unwise for him to pay for the 36 months in advance. The plaintiff testified even, that they were being paid on monthly basis. I therefore, do not see any wisdom for him to continue paying the four staff their monthly salaries beyond 23/12/1993 when he learnt of the termination of his contract by the defendant/respondent company. For him to continue paying them is to me preposterous since they had nothing doing for him. The contract agreement being that of employment, can be terminated by either of the parties at will. I think, the only reasonable claim allowable on that item of claim is the salary of the said staff for four months too. That is to say, N2,000.00k for 4 months, totalling N8,000,00k. I must emphasise here and it is even trite law, that a plaintiff must always take all reasonable steps to mitigate the loss to him caused by a defendant’s wrong or breach. A plaintiff can not be allowed to claim or recover damages for any loss which he could have avoided but has failed through unreasonable action or inaction to avoid. In the instant case the claims he made, for example, on rentage of shop, salaries for four staff ought to have been mitigated by him but he failed to do so. See Okongwu v. NNPC (supra); Obaike v. BCC Plc. (supra). He can not therefore be allowed to wholly claim them. This issue therefore succeeds in part.

In the result, the appeal succeeds in part. The judgment of the lower court that there is no binding contract between the two parties is hereby set aside. Instead, it is hereby held that there is a binding contract between the two parties. However, the claims of damages succeeds and are allowed but only to the extent stated hereunder on both the special and general damages claimed. That is to say:-

(i) Loss of profit for four months (23/8/93 to 23/12/1993) at N282,240.00 per month totalling N1,128,960.00.

(ii) Rent for warehouse for four months at the rate of N3,000.00 per month i.e. N12,000.00k.

Refund of N30,000.00 deposit earlier paid to the defendant/respondent by the plaintiff/appellant which should be refunded to plaintiff/appellant.

(iii) Salaries of four staff at N500.00 per person per month, amounting to N2,000.00 per month for four months equal to N8,000.00k.

Total one million, one hundred and seventy-eight thousand nine hundred and sixty naira only (N1,178,960.00k).

The judgment of this court is that only the amount totalled above should be paid to the plaintiff/appellant by the defendant/respondent company as special and general damages. The appellant is entitled to costs which I assess; at N10,000.00 to be paid to him by the respondent company.

NZEAKO, J.C.A.: I am in complete agreement with the judgment of my learned brother Sanusi, JCA, that this appeal has merit.

My learned brother has carefully outlined the facts and the contents of the documentary exhibits relevant to the appeal. I need not repeat them. Suffice it to state that I cannot help but answer in the affirmative the first issue in this appeal, mutually adopted by both parties. The issue is, whether on a proper interpretation of exhibits A, B and C, there exists an enforceable contract between the parties in this appeal.

I see from the contents of the three exhibits a valid binding and enforceable contract for the distribution of cement to be supplied by the respondent to the appellant.

It is for a term of 3 years. This is so, the formal contract which the respondent insisted, had to be executed, notwithstanding. In any event, the appellant fulfilled all the conditions required of him by virtue of the contract and for the contract to crystalise and become binding on both parties. These include making all payments required of him and the execution of the said formal contract. The fact that the respondent did not deny this and indeed part-performed the contract by allocating to the appellant some cement as stipulated, for some months, further buttress the appellant’s claim that there was a binding contract.

Failure to produce at the trial the formal contract which the respondent sought to cash in upon must be laid at the door of the respondent who withheld same, despite due notice to produce it in court. The law would not permit a party who withholds evidence which he has in his possession and he is bound to tender but fails to do so, to take advantage of this. And, in this regard, the court below ought to have applied the provisions of section 149(d) of the Evidence Act in favour of the appellant. Under that provision, the court may presume that evidence which can and is not produced by a party would if produced be unfavourable to the party who withholds it.

In this case, there was evidence accepted by the court below that after the appellant executed the formal contract, he left it with the respondent at their request, for them to perfect their own part and give him his copy. They failed to return his copy and at the trial refused to produce it even on notice.

Had the learned trial Judge applied the law to his findings in lines 16-23 of page 48 of the record of proceedings, which to my mind, cannot be faulted, he would have done justice to the case of C the plaintiff/appellant.

This is what the court below found at the said page 48 of the records: –

“…believe the oath of the plaintiff and reject DW1’s oath to find as a fact that the plaintiff signed the formal agreement… in the office mentioned in clause 2 of exhibit A. His evidence that upon signing the formal agreement the defendant’s agent took the two copies of it away for their signature and sealing never to return his copy back to him were uncontradicted and unchallenged. DW1’s evidence did not cover it as well as the averments in the statement of defence. Accordingly, I find these facts proved.

With the above and the provision in section 149(d) of the Evidence Act (supra), I am unable to understand what led the court below to its conclusion that the onus was on the pfaintiff to prove that the company signed the formal contract. He was in grave error in his decision that there was no mutual assent. Whatever onus arose regarding the formal contract and its contents fell squarely on the respondent who withheld the document, clearly because it was detrimental to its case and in support of the case of the appellant.

As earlier stated I would myself render the mutual issue No.1 in the appeal in favour of the appellant. This is for the above reasons and the more detailed reasons in the leading judgment of the learned brother.

I also agree with him that the appellant is entitled to damages as assessed in the said leading judgment, and to costs which I assess at N10,000.00 against the respondent.

Appeal allowed.

OGBUAGU, J.C.A.: I had the privilege of reading in advance, the lead judgment of my learned brother, Sanusi, JCA, just delivered by him. I entirely agree with the reasoning and conclusion that the appeal has merit and succeeds in part.

I will however, by way of emphasis, add a few words of mine. When this appeal came up for hearing on 2nd February, 2005, Madubueze, A. O., Esq. -learned Counsel for the appellant, told the court that they filed the appellant’s brief on 8th November, 2000. He adopted the same and urged the court, to allow the appeal, set aside the judgment of the High Court and award the claims of the appellant.

Orkumah, S. A., Esq. learned Counsel for the respondent, told the court that they filed the respondent’s brief on 25th February, 2002, and that it was deemed as duly filed by the court, on 8th December, 2003. He adopted the same and urged the court to dismiss the appeal.

Judgment was thereafter, reserved till 23rd March, 2005, but due to some unforeseen exigencies, it was adjourned to today – 7th April, 2005.

With the greatest respect, it is a pity and unfortunate to say the least, when the learned trial Judge, in spite of the material documentary evidence before him, he dismissed part of the appellant’s claims on the unacceptable reason, that there was absence of consensus ad idem between the parties, i.e. the appellant and the respondent touching on reliefs in paragraphs 27 to 29(a) and (b) and 30 of the amended statement of claim. That the said reliefs, were not proved. Yet, he held that the respondent, did not dispute holding back the appellant’s N30,000.00 (thirty thousand) distributorship deposit. That it was paid and acknowledged in ‘B’. Therefore, that the appellant was entitled to its refund. He awarded this amount to the appellant as a “judgment debt” to be paid forthwith.

Let me highlight some of the disturbing aspects of the judgment. The learned trial Judge, held, that there was no enforceable contract. That mutual assent of both parties, was needed to conclude the contract. Said he at page 48 lines 27 to 35 of the records as follows:

“…Mutual assent of both parties was needed to conclude the contract. I find no evidence of the mutuality of assent for materialization of the negotiations started in exhibit A. Based on the absence of meeting of their respective minds in respect of the formal contract of distributorship which was to be struck by the plaintiff and defendant company jointly signing a contract document, I hold that no enforceable contract was made thereby. There was thus in my finding and view no binding contract of distributorship for defendant company to breach.”

(The italics mine)

Yet, at page 46 lines 9 to 34 of the records, the learned trial Judge, had reproduced the reliefs sought by the appellant at paragraph 30 of his statement of claim. He proceeded to state the facts of the case and at line 34, he stated as follows:

“The above facts are found proved accordingly.”

In fact, I am constrained to reproduce the said facts as stated by the learned trial Judge. They read as follows:

“The above claim arose from an alleged bargain plaintiff clinched with defendant company for supply of 2,400 bags of cement monthly for 36 months, which was allegedly breached by the defendant company barely three months thereafter. From their pleadings, there is hardly any disagreement on these facts. Defendant company produces and sells for profit cement packaged in bags. One of her myriad modes of marketing the product is through distributors appointed by her. She called for applications to that effect from the public via the mass media. Plaintiff applied and was given provisional offer of appointment. He was to sell the product for profit. This was to the knowledge of the defendant company. He paid a deposit of N30.000 to Defendant Company for the distributorship provisional appointment. Defendant Company thereafter gave him cement allocation paper for 180 tones covering September-December 1993. He made series of attempt to pay for the consignment of cement but defendant’s agents reneged. His evidence supported by exhibits A-C confirm the above facts. Defendant company too agreed with him in her evidence through her company secretary and legal adviser. The above facts are found proved accordingly.”

(Italics mine)

At page 47 lines 19 to 45 of the records, the learned trial Judge stated inter alia, as follows:

“…On the rules of pleadings, the mode of termination of the agreement which was not pleaded goes to no issue and is hereby discountenanced. Paragraphs 11 and 12 of the amended statement of claim were evasively denied by defendant company in paragraph 4 of her statement of defence. I deem those avements established without ado. See Lewis Peat v. Akhiemien (1976) 7 S. C. 157:… In permitting plaintiff to give oral secondary evidence of the primary evidence of the document withheld by defendant company, it was and is still on my mind that the oral evidence was to complement not to depart from or contradict the alleged document. Such is the way I will view the matter in this case. See Odeneye v. Oyeyipo Alakata (1977) 4 S.c. 133 at 145-150…

Defendant’s sole witness, her Company Secretary and Legal Adviser, testified against plaintiff’s oath regarding the signing of the agreement by plaintiff. To him such agreements are concluded in his own office and since none came to his notice plaintiff lied upon his sworn evidence of signing the said formal agreement. But there is clause 2 of exhibit A directing conclusion of such agreements in the office of the Assistant General Manager (Commercial) of the defendant company. Defendant agreed exhibit A was issued out to plaintiff by her agents. Its authenticity is not in doubt. I have already accepted it as a valid piece of evidence.

(Italics mine)

Then, at page 48 lines 1 to 17, the learned trial Judge continued inter alia, thus:

“DW1’s evidence has to be assessed against the backdrop of exhibit A. In my finding, exhibit A has more weight than DW1’s oral evidence, it being in permanent form and having emanated from the defendant company. See Olujinle v. Adeagbo (1988) 2 NWLR (Pt. 75) 238 at 253 (E-G); … Plaintiff’s evidence of signing the formal agreement in the office of defendant’s company Assistant General Manager stood firm under cross-examination. Defendant never offered strong contrary evidence to dislodge plaintiff’s assertion. His oral evidence concerning part of the terms of the written agreement also withstood cross examination. There was no contrary evidence against the said oral evidence of some of the terms of the formal agreement. It is for these reasons that I believe the oath of plaintiff and reject DW1’s oath to find as a fact that plaintiff signed the formal agreement for the distributorship in the office mentioned in clause 2 of exhibit A.”

It need be pointed out, that exh. ‘A’ dated 23rd August, 1993, is the letter of appointment of the appellant as a distributor under category B.

Exh. ‘B’- is the formal agreement.

Exh. ‘C’, is the receipt of the deposit which the learned trial Judge ordered that should be refunded to the appellant by the respondent. In fact, exh. ‘C’ dated 1st September, 1993, is an allocation paper issued to the appellant by the respondent for the month of September to December, 1993.

It should be borne in mine, that-

(i) the respondent, used the said deposit or the money of the appellant for or in their business;

(ii) the three (3) exhibits -‘A’, ‘B’ and ‘C’, were admitted and in fact, identified by the DW1. The learned trial Judge, accepted their issuance.

It was when the appellant read in the “Voice” Newspaper of the termination of the distributorship agreement by the respondent without any reason whatsoever that led to his seeking his remedy in the court hence the suit the dismissal of which, led to the instant appeal.

It can be seen that the said judgment of the learned trial Judge, with respect, is self-contradictory. He was surely, blowing hot and cold at the same time so to say. I therefore, hold that the said judgment, was clearly unfair to the appellant in its conclusion that there was no enforceable contract between the parties, because, according to him, the defendant/respondent, did not sign the formal agreement. I agree with the learned Counsel for the appellant, and hold that on a calm view of the evidence of the appellant which the learned trial Judge believed and found the facts as established/proved, and on the interpretation of exhs. ‘A’, ‘B’ and ‘C’, there existed/exists, an enforceable contract between the appellant and the respondent.

I will conclude this issue, by stressing the fact which is also now settled, that it is not the duty of a court, to determine the issues before it on the basis of one document only, when a contract is contained in a series of documents or letters or correspondences. The court is under a duty, to consider the whole of what has passed between and the conduct of the parties. See The Att.-Gen. of Kaduna State v. Atta (1986) 4 NWLR (Pt. 38) 785 C. A.; Leyland (Nig.) Ltd. v. Dizengoff W.A. (1990) 2 NWLR (Pt. 134) 610 at 620 CA; Thomas Hussey v.John Horne-Payne & Anor. (1879) 4 App. Cas. 311; (1874-80) All E.R. 716; 48 L.J. Ch. 846 (H/L); Perry v. Suffields Ltd. (1916) 2 Ch. 187 and Pontifex and Wood Ltd. v. Hurtley & Co. (1893) 62 L.J. Q.B. 196; 9 T.L.R. 184. I therefore, render my answer to issue No.1 of the appellant, in the affirmative.

As regards issue No.2 of the appellant, I cannot improve on the reasoning and conclusion of my learned brother, Sanusi, JCA in the lead judgment. It is from the foregoing, and the more detailed lead judgment, that I too allow the appeal in part, set aside the said judgment of Ikyagh, J. delivered on 30th September, 1996, except the order of refund of the said deposit of N30,000.00 (thirty thousand Naira). I abide by the consequential order in respect of costs.

Appeal allowed in part.

Appearances