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TONIQUE OIL SERVICES LTD v. VIRGIN FOREST ENERGY LTD (2021)

TONIQUE OIL SERVICES LTD v. VIRGIN FOREST ENERGY LTD

(2021)LCN/15641(CA)

In the Court of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, March 04, 2021

CA/L/321/16

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Saidu Tanko Hussaini Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

TONIQUE OIL SERVICES LIMITED APPELANT(S)

And

VIRGIN FOREST ENERGY LIMITED RESPONDENT(S)

 

RATIO

THE MEANING OF THE TERM “NOVATION”

Perhaps it is necessary to state here the meaning of “Novation” as defined by the Black’s Law Dictionary, Ninth Edition, at page 1168 that it is:
The act of substituting for an old obligation a new one that either replaces an existing obligation with a new obligation or replaces an original party for a new one. A novation may substitute (1) a new obligation between the same parties. (2) a new debtor, or (3) a new creditor.
See PHILLIPS VS. ARCO LTD (1971) LPELR-2918 (SC) where the Apex Court held that Novation is in effect a form of assignment in which by the consent of all the parties a new contract is substituted for an existing contract. There must be a substitution of some other obligation for the original one, but also the intention or animus novandi. PER ALIYU, J.C.A.

THE CARDINAL PRESUMPTION OF LAW THAT PARTIES TO A WRITTEN CONTRACT INTENDED WHAT THEY STATED THEREIN

It is elementary principle of law settled by uncountable decisions of the Apex Court and this Court that, there is a cardinal presumption of law that parties to a written contract intended what they stated therein and anything not stated on the document should not be imputed into it. SeeA. G. NASARAWA STATE VS. A. G. PLATEAU STATE (2012) LPELR- 9730 (SC) and OLOYEDE VS. OLOYEDE (2014) LPELR 24384 (CA) where Gumel, JCA held that:
It is the law that it is not permitted in the interpretation or construction of a document that the exercise is done by a party either placing a gloss on it or importing or imputing into it terms not contained therein. And where the letters of a document are plain and unambiguous they should be given their plain and ordinary meaning.
PER ALIYU, J.C.A.

THE DUTY OF THE TRIAL JUDGE TO EVALUATE EVIDENCE LED BY PARTIES BEFORE IT

It is the duty of the learned trial Judge to evaluate all the evidence led by the parties, both oral and documentary, to draw inferences therefrom and form an opinion. The documentary exhibits being in respect of bank deposits and receipts were tendered in evidence to show how much was deposited into the Appellant’s bank account, when the deposits were made and by whom. They formed the cases of the parties, particularly the Respondent/Claimant. The trial Court has the duty to examine the documents to resolve the dispute especially so because in this particular case, the two witnesses both testified as to amount of money paid through the documentary evidence admitted. See AJILEYE VS. FAKAYODE (1998) 4 NWLR (PT. 545) 184 at 198 D-E, where Mukhtar, JCA (as he then was, later CJN) speaking for this Court held inter alia that:
A trial judge has the right within the precinct of the case before him to explore all angles and aspects of the facts, looks at them with analytical mind, express an opinion and make his findings based on the evidence before him. A situation where he finds himself in a strait jacket, so to speak, in order to confine himself to the matter before him is not healthy.
PER ALIYU, J.C.A.

BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Lagos State, sitting in Lagos (trial Court) delivered on the 11th February, 2016 in respect of Suit No: LD/1851/12 filed by the Respondent (being the Claimant) against the Appellant (defendant) vide a writ of summons filed along with a statement of claim on the 30th November, 2012. The statement of claim was however amended and the 2nd amended statement of claim filed on the 9th February, 2015 by which the Respondent claimed against the Appellant as follows:
a) The sum of NGN102, 500, 000 .00 (One Hundred and Two Million Five Hundred Naira) being balance on the NGN220,000,000 (Two Hundred and Twenty Million Naira) paid to the 1st and 2nd Defendants by the Claimant for the purchase of 4Million liters of Premium Motor Spirit at the rate of N55.00 (fifty-five Naira) per liter in November and December 2011.
b) Interest on the said principal sum of NGN102,500,000. 00 for loss of profit (based on the agreed margin of NGN4.00 per liter) at the sum of NGN20,000,000.00 (Twenty Million Naira) for the month of December 2011 and NGN10,000,000.00 (Ten Million Naira) per month from January 2012 until final liquidation as per the term of the memorandum of Understanding of January 24, 2012.
c) The sum of NGN300,000,000.00 (Three Hundred Million Naira) as general damages.
d) Cost of this action.

The background facts that gave rise to the suit are that the parties entered into a simple contract of sale of 4million litres of Premium Motor Spirit (PMS) under which the Respondent as the buyer paid the sum of N220 Million to the Appellant (seller/supplier) through its own bank account and the bank accounts of other companies that it claimed are its affiliates. The Respondent asserted that before it made the payment for the product, the Appellant made representation to it that it was in possession of that amount of PMS for immediate supply, which representation turned out to be false. Upon discovery of the misrepresentation, the Respondent demanded the refund of the sum of N220 Million it paid the Appellant, but only N107.5 Million out of the N220 Million was refunded to it leaving a balance of N102.5 Million unpaid.
In attempt to recover the balance owed, the parties executed an Assignment and Novation agreement dated 24th January, 2012 in which they agreed that the Appellant would pay interest on the principal sum owed for the loss of profit based on agreed margin of N4.00 per liter of NGN20Million for the month of December 2011 and NGN 10Million for every subsequent month from January 2012 that the principal amount remains unpaid. After repeated and unsuccessful demands for the refund of the outstanding amount and the agreed interest, the Respondent instituted this suit against the Appellant to recover its money.

The Appellant denied the claims of the Respondent and asserted that the Respondent was aware that the 4Million litres of the PMS was not immediately ready for supply but was to be supplied within the lay can period between 29th December, 2011 to 3rd January, 2012 because the product has to be imported. But while waiting for the PMS to arrive, the Respondent got inpatient and demanded for the refund of its money. The Appellant further claimed that the Respondent deposited only the sum of N121.1Million and not N220Millioin as it claimed and that the Appellant refunded the total sum of NGN127.5Million, a sum over and above the actual sums of money deposited by the Appellant for the 4Million liters of the PMS. It claimed that the sums claimed by the Respondent included the monies paid into its account by various companies which the Respondent claimed were affiliated to it, namely Virgin Forest Investment Ltd, Cowry Securities Ltd and Cowry Assets Management Ltd. The Appellant asserted before the trial Court that the Respondent has no authority or power to recover the monies paid to it by these companies, since they have separate and distinct personalities.

During the trial, each party called one witness and tendered several documents in support of its case. At the conclusion of the trial, the learned trial Judge entered judgment for the Respondent (Claimant) against the Appellant and ordered it to pay the Respondent the sum of N102.5Million being balance outstanding from the N220Million paid to the Appellant for the failed contract of sale of PMS, with interest at 21% per annum from January 2012 to the date of the judgment and thereafter at 10% per annum till liquidation.

The Appellant was not happy with the judgment and decided to appeal against it vide its notice of appeal filed on the 12th February, 2016 but amended and filed on the 7th December, 2020, deemed properly filed and served by the order of this Court made on the 9th December, 2020. The Appellant relied on six (6) grounds of appeal contained therein to pray this Court to allow the appeal and to set aside the judgment of the trial Court and dismiss the Respondent’s claims.

The Appellant’s brief of argument was filed on the 12th July, 2017, consequentially deemed properly filed on the 9th December, 2020 due to the amendment of the notice of appeal. Ganiyu A. Bello Esq., learned Appellant’s counsel settled the said brief, wherein he identified two (2) issues from the six grounds of appeal for the determination of the appeal, reproduced below:
1. Whether having regards to the evidence before the lower Court and with particular reference to the principle of distinctive personalities of Virgin Forest Investment Limited – all of whom are not parties in this case – it is perverse and wrong of the lower Court to recover from the Appellant the sum of N102,500,000. 00 (One Hundred and Two Million Five Hundred Naira) Plus interest. (Grounds 1, 2, 3, 4 and 6 of appeal).
2. Whether the lower Court was wrong in relying heavily in its judgment on Exhibit C12 – the assignment and Novation dated 4th January, 2012 – both of which documents constitute past consideration and represent unconscionable bargain. (Ground 5 of appeal).

In opposing the appeal, the Respondent filed its brief of argument settled by Dr. Eberechi Ifeoma Esq., and filed on the 27th July, 2017 deemed properly filed and served on the 9th December, 2020. In page 7, paragraph 3 of the Respondent’s brief, learned Counsel proposed two issues for the determination of this appeal as follows:
1. Whether the Respondent is not entitled to recover from the Appellant the sum of N102, 500, 000. 00 (One Hundred and Two Million Five Hundred Thousand Naira) plus interest paid to the Appellant, having regard to the evidence before the Court.
2. Whether the Assignment and Novation Agreement dated January 24, 2012, created a valid and enforceable contract between the Appellant and the Respondent.

The appeal came up for hearing on the 9th December, 2020 and each counsel adopted the parties’ respective briefs of argument. The Appellant’s learned Counsel urged the Court to allow the appeal and set aside the judgment of the trial Court but the Respondent’s learned counsel urged us to dismiss the appeal and affirm the judgment of the trial Court.

A calm look of the issues raised by each party discloses that they are substantially the same only couched in different language style. It means that the parties are in agreement on the issues arising for the determination of this Court in this appeal. I therefore adopt the Appellant’s two issues as my guide for the determination of this appeal for the simple reason that the Appellant is the undoubted owner of the appeal. The submissions of the learned counsel on the issues are considered below.

APPELLANT’S SUBMISSIONS:
On the Appellant’s issue one, learned Counsel referred us to the Respondent’s 2nd amended statement of claim, which shows clearly that the contract for the supply of the PMS was strictly between the Appellant and the Respondent only. But in paragraph 7 of its pleading, the Respondent asserted that other named companies made payments into the bank account of the Appellant on the basis of which it claimed to have paid N220Million to the Appellant. By its own pleadings, the Appellant denied receiving this sum of N220Million but admitted only receiving from the Respondent the sum of N121.1Million. He drew the Court’s attention to the fact that there was no reply to the Appellant’s statement of defence to the effect that the facts stated therein remained against the Respondent. He relied on the case of FRANCIS ESEIGBE VS. FRIDAY AGHOLOR & ANOR. (1993) LPELR-1164 (CA) for support.

He further argued that the learned trial judge rather than restrict himself to the pleadings and evidence led by the parties regarding the sums of money paid and refunded, resorted to mathematical calculations in page 525 of the record, which was outside its function since CW1 did not make any mathematical calculations in his evidence. He relied on the case of IKEANYI VS. A.C.B. LTD (1997) 2 NWLR (PT. 489) 509 (CA) to the effect that the function of a judge is to adjudicate on the issues properly placed before him by the contending parties. He submitted that there was ambiguity on the sums of money paid and refunded, as such, the learned trial Judge’s resort to mathematical calculations was frolic. And that though it is correct that the Appellant refunded N127.million to the Respondent while claiming that the Respondent deposited only N107.5Million to it, is no basis for the learned trial Judge to disbelieve the Appellant.

On the payments of money made by other companies, which CW1 testified were affiliates of the Respondent, it was submitted that the evidence of the CW1 was not sufficient for the trial Court to hold that the said companies were indeed affiliated to the Respondent. Further, that the evidence of CW1 is not enough to empower the Respondent to recover money owed to these companies when they are not made parties to the case, being separate personalities from their members and officers. He referred the Court to the cases of VIRGIN TECHNOLOGIES LTD VS. MOHAMMED & ANOR (2008) LPELR- 5089 (CA); BEBEJI OIL ALLIED PRODUCT LTD VS. PANCOSTA LTD (2007) 13 WRN 163 and NEW NIGERIA NEWSPAPER LTD VS. AGBOMABINI (2013) LPELR- 20741 (CA), in support of the argument and to urge us to hold that the Appellant is not indebted to the Respondent and that the Respondent is not entitled in law to recover money for other companies and resolve issue one in favour of the Appellant.

On the Appellant’s issue two, learned counsel referred to Exhibits C12, the Assignment and Novation, dated 24th January, 2012 which the Respondent relied on at the trial Court to show and confirm the amount of money involved in the transaction. The Appellant contended that this exhibit C12 constituted past consideration and also represented a harsh and unconscionable bargain, because pressure was put on the Appellant to refund money owed to the Respondent. But the learned trial Judge disagreed with the Appellant’s argument and relied on the said Exhibit 12 in the final decision. He argued that the law is trite that past consideration will not aid contract, which is sought to be performed. That, in this case, the transaction for the supply of the PMS was concluded in 2011 and any attempt by the Respondent to bring in Exhibit C12 in 2012 to support the transaction amounted to past consideration as such, the lower Court ought not to have given any consideration to Exhibit C12. Further submitted that the Appellant and the Respondent were not on equal bargaining power at the time of the execution of Exhibit C12. That the Respondent “should have advised the Appellant to seek for independent and informed advice before executing the documents in Exhibit C12.” That the absence of such independent advice to the Appellant is fatal to the document and this Court was urged to so hold on the authority of the English case of LLOYDS BANK VS. BUNDY (1973) 3 ALL E.R 757 and BUA VS. DAUDA (2003) 13 NWLR 657 at 683. Learned Appellant’s counsel concluded his argument on issue two by submitting that in this case, the Respondent put pressure on the Appellant for the refund of money and brought the Assignment and Novation which the Appellant was coerced to execute. The property involved in Exhibit C12 was not evaluated to know whether its worth is more than what the Appellant owed the Respondent. In short, the Appellant was not advised to access or seek for independent advice. Upon his argument, learned counsel “pleads” with this Court to resolve issue two in favour of the Appellant.

RESPONDENT’S SUBMISSIONS
In arguing issue one on the refunds of the part N220Million made by the Respondents to the Appellant through its affiliate companies for the supply of 40Million liters of PMS, learned Respondent’s Counsel drew the Court’s attention to the fact that the Appellant did not deny receiving the money from these companies. It only claimed not to know the companies’ affiliation to the Respondent, which contention is baseless in view of the fact that the Appellant did not show any contractual relation between it and these companies for which they will transfer such huge sums of money to its bank account. There was also no evidence showing that the Appellant alerted its bankers or made any enquiry about the deposits made by these companies into its bank account and for what purpose, but rather chose to remain silent. He submitted that its silence on the deposits of huge amounts of money into its account means that the Appellant knew the money was from the Respondent in respect of the contract for the sale/supply of the 4Million liters PMS. Therefore, estoppel by silence or standing by applies to stop the Appellant from denying receipt of the money from these companies for the Respondent. He relied for support on the cases of UNIVERSITY OF ILORIN VS. DUNMADE (2013) LPELR-21383 (CA) and JOE IGA & ORS. VS. EZEIKEL AMAKIRI & ORS. (1976) 11 S. C.

He further pointed the Court’s attention to the Assignment and Novation agreement executed by the parties on the 24th January, 2012 (page 371-376 of the record), Exhibit C12, wherein the Appellant admitted that the Respondent deposited N220Million between 29th November, 2011 and 2nd December, 2012 for the supply of 4Million of PMS which the Appellant as the assignor failed to supply. He submitted that the Appellant having received money from the affiliate companies without any incidence cannot turn around to allege that it is clueless as to the identity of the companies and/or the purpose for which the money was transferred to its accounts. That it will not serve the interest of justice to allow the Appellant approbate and reprobate at the same time vide ODUA INVESTMENT CO. LTD VS. TALABI (1991) 1 NWLR (PT. 170) 761. He submitted that indeed, the Appellant while refunding part of the N220Million has actually made payment to one of the affiliates companies, Virgin Forest Investment Ltd as shown on the bank transfer forms (page 172 of the record). Further, the Appellant’s own witness (DW1) stated in paragraph 10 of his witness statement on oath that the Appellant refunded the contract sums to the Respondent through payments of various sums it made to Virgin Forest Investment Ltd one of affiliates of the Respondent. Therefore, the Appellant having acknowledged by its conduct, the affiliation of the companies to the Respondent, it cannot be heard to argue a contradictory position. The Court was urged to discountenance the argument of the Appellant regarding the affiliation of the companies to the Respondent.

On the contention of the Appellant that the learned trial Judge did not restrict herself to the evidence led, but resorted to doing mathematical calculations that was erroneous and speculative, the Respondent argued that the judgment of the trial Court was well reasoned and based on the evidence led by the parties. That the trial Court did not embark on an extraneous and speculative exercise as wrongly posited by the Appellant. The Court was therefore urged to discountenance that argument and resolve issue one in favour of the Respondent.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

With regards to the Respondent’s issue two, on the validity and enforceability of the Assignment and Novation Agreement of the Parties, (Exhibit C12), learned counsel submitted that the elements/ingredients of a valid contract as enunciated by the Supreme Court are offer, acceptance, consideration, legal capacity of the parties and intention to create a binding agreement. See Orient Bank Vs. Bilante International (1997) 8 NWLR (pt. 515) 37. He submitted that the argument of the Appellant to the effect that the Assignment and Novation agreement constitutes a past consideration and unconscionable bargain ought to be discountenanced considering the fact that the agreement was executed in January 2012 and the Appellant claimed it completed refunding the Respondent’s money in August 2012. In response to the submission of the Appellant that the agreement is unenforceable for being unconscionable and unrealistic, the Respondent submitted that this allegation constituted a surprise to the Respondent because there was nothing in the pleadings and evidence of the parties before the trial Court that contained this allegation. It was only raised in the final written addresses of counsel before the trial Court, which rightly dismissed it. He referred to and relied on the case of Bisbilder (Nig.) Ltd Vs. First Bank of Nigeria Ltd (2000) 1 NWLR (pt. 642) 698, and submitted that the onus is on the party alleging undue influence or illegality in a contract to specifically plead and prove the same. The Court is urged to so hold. Further, that the Appellant which has the required capacity to execute agreement, without any proof of coercion cannot be allowed to rescind from same under baseless allegation of undue pressure. Conclusively, the Respondent submitted that the Court is not meant to re-write the contract made by the parties but to enforce it. Therefore, the Assignment and Novation agreement executed by the parties is valid, subsisting and enforceable, and the Court should so hold and dismiss the appeal in its entirety.

RESOLUSION
ISSUE ONE
This issue distilled from five out of the six grounds of appeal is: Whether having regards to the evidence before the lower Court and with particular reference to the principle of distinctive personalities of Virgin Forest Investment Limited – all of whom are not parties in this case – it is perverse and wrong of the lower Court to recover from the Appellant the sum of N102, 500,000. 00 (One Hundred and two Million Five Hundred Naira) Plus interest. To determine the complaint of the Appellant under this issue, I examined closely the evidence on record led by both parties before the trial Court. It is observed that the salient facts of this case were not in contention, that is the Respondent and the Appellant entered into a contract for the supply of 4Million liters of PMS, for which the Respondent paid the Appellant consideration for, but the Appellant could not supply the product and it became necessary for the parties to vary the contract. Pursuant to that circumstance, they executed an Agreement on Novation by which they agreed on the terms of repayment/refund of the contract sums paid to the Appellant vide the original contract of sale.

Perhaps it is necessary to state here the meaning of “Novation” as defined by the Black’s Law Dictionary, Ninth Edition, at page 1168 that it is:
The act of substituting for an old obligation a new one that either replaces an existing obligation with a new obligation or replaces an original party for a new one. A novation may substitute (1) a new obligation between the same parties. (2) a new debtor, or (3) a new creditor.
See PHILLIPS VS. ARCO LTD (1971) LPELR-2918 (SC) where the Apex Court held that Novation is in effect a form of assignment in which by the consent of all the parties a new contract is substituted for an existing contract. There must be a substitution of some other obligation for the original one, but also the intention or animus novandi.

In this case, the Assignment and Novation agreement executed on the 24th January, 2012 by the Appellant and the Respondent was meant to create a new obligation, to wit, the Appellant’s obligation of returning or refunding the contract sum paid to it for the supply of the PMS, which it failed to do. In addition to the Novation, the parties also executed a Memorandum of Understanding (MOU) dated the same 24th January, 2012. Both the Assignment of Novation and the MOU were admitted in evidence as Exhibits CW12 and CW13 respectively. These documents are central to the determination of the rights and obligation of the parties and the learned trial Judge was right to rely on them, particularly the Assignment of Novation agreement.

It is elementary principle of law settled by uncountable decisions of the Apex Court and this Court that, there is a cardinal presumption of law that parties to a written contract intended what they stated therein and anything not stated on the document should not be imputed into it. SeeA. G. NASARAWA STATE VS. A. G. PLATEAU STATE (2012) LPELR- 9730 (SC) and OLOYEDE VS. OLOYEDE (2014) LPELR 24384 (CA) where Gumel, JCA held that:
It is the law that it is not permitted in the interpretation or construction of a document that the exercise is done by a party either placing a gloss on it or importing or imputing into it terms not contained therein. And where the letters of a document are plain and unambiguous they should be given their plain and ordinary meaning.

In his evidence under cross-examination, the Respondent’s CW1 through whom the two contract documents were admitted as Exhibit C12 and C13 stated in pages 495 to 500 of the record that he is the Chairman of the Respondent and he cleared the payments cheques to the Appellant totaling N220Million, including payments made from his other companies, namely Virgin Forest Investment Ltd, Cowry Asset Management and Cowry Securities Ltd.

The testimony of the CW1 was supported by Exhibits C12 and C13 aforementioned also copied in pages 36 to 42 of the record of appeal. In both documents, it was stated by the parties that the Respondent has paid the Appellant the sum of N220Million for the supply of 4Million of PMS, which was not supplied. This fact is clear and not subject to any further interpretation or explanation.

The grouse of the Appellant under this issue relates only to how the payment of the said sum was made to the Appellant. In his evidence, which I referred to supra, CW1, the Chairman of the Respondent stated that he owned the companies that deposited some of the payments totaling N220Million to the Appellant. In his argument under this issue, the learned Appellant’s counsel contended that the Respondent is not competent to recover debt on behalf of the companies who are not parties to the contract. On this contention, it should be noted that this is not a company law dispute, or a dispute arising from the operation of a company and it should not be made so. It is simply a dispute arising from and under a simple contract of money paid and received as consideration for supply of 4Million litres of PMS, which the Appellant failed to perform. The legal personality of the companies which CW1 said he owns was not in issue or in contention. The evidence before the Court simply showed that the named companies in making the payments of the sums of money to the Appellant acted or did so on behalf of the Respondent and no more. They acted as agents of the Respondent and no more. Since the Respondent was the party suing, it needs only showed that the companies acted for it, on its instruction to make the payments to the Appellant.

The Learned trial Judge after considering the evidence and the submission of the Appellant held in page 527 as follows:
The Defendants in their written address have made an issue of the fact that the monies that came from the Claimant’s associated companies cannot be reckoned as being paid by the Claimant. Those companies are strangers to the transaction. The said associated companies are juristic persons with their own corporate identity that have a right to sue and be sued. When a wrong is done a company, it is that company that should sue. Accepted. However, if Exhibit C12 were not there, the Defendants may have succeeded with this argument. Exhibit C12 is a document signed by the Claimant and Defendants accepting that the Claimant paid N220Million for the PMS. It is a bit late in the day to argue that the Claimant did not pay N220Million after signing an agreement saying that they did.

I totally agree with the learned trial Judge in the above conclusion reached after an impeccable analysis of the pleadings and evidence before the Court. As submitted by the Respondent, the Appellant did not deny receiving the money from the affiliate companies of the Respondent, nor showed any evidence of the reason why those companies would deposit the various sums of money into its account. The only explanation came from the evidence of CW1. The trial Court was therefore right to accept his unchallenged evidence as the truth, to the effect that the payments were made on the instruction of the Respondent in respect of the contract of supply of PMS.

The Appellant has also complained that the learned trial Judge has resorted to mathematical calculations to arrive at the sums it owed the Respondent and that the CW1 did not make any such calculations. I have examined the holding of the trial Court referred to in page 525 of the record and found that the trial Court was considering the sums of money each party claimed to have paid and received. He found that from the totality of the facts before the Court, the fact that the Respondent paid the Appellant for the supply of 4Million liters of PMS was not in contention. And that being unable to supply the products, the Appellant refunded some of the money and the amount refunded was the dispute to be determined. His Lordship then proceeded to determine the disputed amounts by evaluating the documentary Exhibits 9A to 9L, 10A to 10J, and 11A to 11E to find out how much was paid and received etc., from which he found that the total moneys paid to the Appellant was N220Million.
​ 
It is the duty of the learned trial Judge to evaluate all the evidence led by the parties, both oral and documentary, to draw inferences therefrom and form an opinion. The documentary exhibits being in respect of bank deposits and receipts were tendered in evidence to show how much was deposited into the Appellant’s bank account, when the deposits were made and by whom. They formed the cases of the parties, particularly the Respondent/Claimant. The trial Court has the duty to examine the documents to resolve the dispute especially so because in this particular case, the two witnesses both testified as to amount of money paid through the documentary evidence admitted. See AJILEYE VS. FAKAYODE (1998) 4 NWLR (PT. 545) 184 at 198 D-E, where Mukhtar, JCA (as he then was, later CJN) speaking for this Court held inter alia that:
A trial judge has the right within the precinct of the case before him to explore all angles and aspects of the facts, looks at them with analytical mind, express an opinion and make his findings based on the evidence before him. A situation where he finds himself in a strait jacket, so to speak, in order to confine himself to the matter before him is not healthy.
​I therefore disagree with the submissions of the learned Appellant’s counsel that the trial Judge engaged in mathematical calculations not done by the witnesses. The calculation of the monies in this case was made in issue, nay, it is the only issue central to the determination as per the pleadings and the evidence. Even the Appellant admitted this fact in paragraph 4.05 of its brief. The learned trial Judge was within its inherent power, to examine the calculations made by the parties and form an opinion on them and make a decision to resolve the dispute. I cannot fault the learned trial Judge on carrying out that duty in this case.

With regards to the argument of Appellant to the effect that the learned trial Judge abandoned the evidence before him and resorted to rhetoric at page 528 of the record of appeal when he queried why the Appellant refunded the sum of N127,500,000 when it claimed that it only owed the Respondent N121,100,000, and held that he did not believe the Appellant’s claim. There was no evidence on the record and none was pointed out by the Appellant in this appeal to explain this anomaly in which the Appellant claimed to have paid more than it owed. I too do not believe the Appellant and for this reason, I agree with the holding of the learned trial Judge and discountenance the argument. Issue one is resolved against the Appellant.

ISSUE TWO
This issue was distilled from ground 5 of appeal in which the Appellant questioned the trial Court’s reliance on the Exhibit C12 – the Assignment and Novation agreement dated 24th January, 2012 and argued that this document constitute past consideration and represent unconscionable bargain.

The Appellant’s learned counsel has referred to the case of Sanusi Vs. Daniyan (supra) citing LPELR, which case is not found at that citation. However, in the case of BRANDSCAPITAL LTD VS. CHIEF ADEBOLA DISU-IGE & ORS (2018) LPELR-44812 (CA), this Court adopted and approved the definition of the ‘unconscionable bargain’ in Black’s Law Dictionary and held per Ogakwu, JCA that:
The common trend in that definition is that an unconscionable bargain which does not depict an arms length transaction is one characterized by unfairness and lack of honesty in terms and conditions of the bargain, portraying that one party had taken advantage of the other.

Where a party intends to rely on the facts of past consideration and unconscionable bargain, it must plead and prove same with sufficient and credible evidence, for he who alleges has the burden to prove. The Appellant’s 1st Amended statement of defence and its witness statement on oath are contained in pages 431 to 437. There was no mention of any facts that Exhibit C12 constitutes past consideration and represents an unconscionable bargain, or that the parties were not at arms length when they executed Exhibits C12. In fact, the Appellant’s DW1 concluded his evidence-in-chief in paragraph 17 of his witness statement on oath, echoing paragraph 16 of the statement of defence as follows:
I plead with this Honourable Court to dismiss this case for want of evidence and for being frivolous, vexatious and amounting to an abuse of Court’s process.

There was no mention of undue influence or past consideration in his evidence. In the circumstance, the learned trial Judge was correct when he expressed shock at this contention of the appellants raised only vide its final address and held at page 529 to 530 that:
Even if undue influence has been pleaded by the Defendants, which is not the case here, I hardly think it would apply here. The Defendant knew what they were signing and went ahead and signed. The Defendants also knew Exhibits C12 and C13 were not realizable and they were mere fantasies and yet, they signed the agreement! Was it to mislead the Claimant? I wonder! Well they are bound by the agreements they entered into and I so hold. I cannot ignore Exhibit C12 and C13 or treat them with a pinch of salt as submitted by the Defendants! C12 has been useful and helpful in giving the Court an insight to the terms of the contract between the parties.

I affirm a stamp of approval to the supra eloquent finding of the learned trial Judge that flows from the evidence and facts led before him, especially in view of my own finding in the resolution of issue one supra, to the effect that Exhibit C12 and C13 are the central documents to the determination of the dispute between the parties in this case. I therefore have no hesitation whatsoever in resolving issue two against the Appellant and it is so resolved against the Appellant.

Consequent to the resolution of the two issues against the Appellant, it means that this appeal lacks any iota of merit and it is dismissed by me. The judgment of the High Court of Lagos State, delivered by HON. JUSTICE JOSEPHENE EFUNKUMBI OYEFESO on the 11th February, 2016 is hereby affirmed by me. Cost of N1, 000, 000. 00 (One Million Naira) awarded in favour of the Respondent against the Appellant.

IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege of reading the draft copy of the Lead Judgment of my learned brother, HON. JUSTICE BALKISU BELLO ALIYU, JCA and I am in complete agreement with his reasoning and conclusion that the Appeal lacks merit and same is hereby dismissed. I abide by the Order as to costs.

SAIDU TANKO HUSAINI, J.C.A.: The Appellant indeed, was caught up by the equitable doctrine of estoppel. Having accepted in writing of the receipt of the sum of N220 Million naira from the Respondent, for the supply of PMS products, and it failed to supply the product, the Appellant by that act or omission, was a debtor or became a debtor and thus liable to make refunds of monies paid or advanced to it, pursuant to the relevant agreement signed by it. The argument that other companies affiliated to the Respondent paid that money to the (Appellant) and thus the Respondent could not have been the proper person or party to bring or initiate action, leading to this appeal seem to overlook the underlining principle in agency matters such as in this case. The principal takes responsibility for every act done or left undone by the body affiliated to it, as a disclosed principal, hence he can sue and be sued for the acts of the agent. See OKWEJIMINOR VS GBAKEJI & ANOR (2008) LPELR- 2537 (SC).
In any case, by reason of Exhibits C12 and C13 that is, the agreements signed by the Appellant owning up their obligation or commitment to the Respondent, they cannot now resile from the contents of those documents, as inapplicable.

My Lord, Balkisu Bello Aliyu, JCA in the lead judgment has said it all and I agree entirely with the reasoning and conclusions in the lead judgment. The appeal lacks merits and I order that the same be dismissed. I further abide by the order in the lead Judgment as to cost.

Appearances:

ANIYU A. BELLO,ESQ. For Appellant(s)

ONYEMAUCHE IBEZIM,ESQ. For Respondent(s)