WEST AFRICAN UTILITIES METERING & SERVICES LIMITED v. AKWA IBOM PROPERTY AND INVESTMENTS COMPANY LIMITED
(2019)LCN/12845(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of March, 2019
CA/C/38/2015
RATIO
CONTRACT: DUTY OF THE COURT TO INTERPRET CONTRACT
“The sacred rule in contract is that parties are bound by the terms of an agreement freely entered into by them and the duty of a trial Court is simply to give effect to that agreement entered into by the parties and not to make a new agreement for them. This is an age old legal principle – a notorious one for that matter and there is a plethora of case law on that subject matter. See AFROTEC TECHNICAL SERVICES (NIG.) LTD. VS. MIA & SONS LTD. & ANOR. (2000) 15 NWLR (PART 692) 730; (2000) 12 SC (PT. 11) 1; (2000) ALL NLR 533; BOOKSHOP HOUSE LTD. VS. STANLEY CONSULTANT LTD. (1986) NWLR (PART 26) 87 @ 97. The duty of Court is strictly to interpret the contract between parties, it has no competence to make a new contract for the parties, see NIKA FISHING CO. LTD. VS. LAVINA CORPORATION (2008) LPELR-2035 (SC) which held thus: ‘It is the law that parties to an agreement retain the commercial freedom to determine their own terms. No other person, not even the Court, can determine the terms of contract between parties thereto. The duty of the Court is to strictly interpret the terms of the agreement on its clear wordings. See NIMANTEKS ASSOCIATES VS. MARCO CONSTRUCTION COMPANY LIMITED (1991) 2 NWLR (PT. 174) 411. Finally, it is not the function of a Court of law either to make agreements for the parties or to change their agreements as made. See AFRICAN REINSURANCE CORPORATION VS. FANTAYE (1986) 1 NWLR (PT. 14) 113.’Per TOBI, J.S.C (of blessed memory).” PER YARGATA BYENCHIT NIMPAR, J.C.A.
JUSTICES
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
Between
WEST AFRICAN UTILITIES METERING & SERVICES LIMITED – Appellant(s)
AND
AKWA IBOM PROPERTY AND INVESTMENTS COMPANY LIMITED – Respondent(s)
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of Akwa Ibom High Court delivered on the 8th day of June, 2015 by Hon. Justice J. I Unwana wherein the trial judge dismissed the claims of the Appellant and granted the reliefs named in the counter claim. The Appellant dissatisfied by the said decision filed an Amended Notice of Appeal on the 10th day of February, 2016 but deemed on the 26th day of October, 2016 setting out four (4) grounds of Appeal.
The Appellant as Plaintiff at the Court below took out a writ of summons on the 31st day of July, 2012 and which claimed as follows:
i. A declaration that the Claimant is the lawful owner of the two 3 Bedroom Detached Bungalows i.e. House No. R 301 and R 302 and its appurtenances, situate at APICO – Shelter Afrique Estate, Mbiaobong Etoi/Nung Ette, Uyo Local Government Area of Akwa Ibom State having fully paid for same and taken possession since early 2003.
ii. An Order of mandatory injunction, compelling the Defendant to immediately execute the appropriate deed of Conveyance perfecting the transfer of legal title in the two 3 Bedroom detached Bungalows (i.e. House Nos. R 301 and R 302) situate at APICO – Shelter Afrique Estate, Mbiaobong Etoi/Nung Ette, Uyo Local Government Area, Akwa Ibom Sate to the Claimant.
iii. An order of perpetual injunction retraining the Defendant, its agents, privies or assigns from ejecting, threatening or attempting to eject the Claimant and its staff occupying the two 3 Bedroom detached Bungalows situate at APICO – Shelter Afrique Estate, Mbiaobong Etoi/Nung Ette, Uyo Local Government Area, Akwa Ibom State.
iv. An Order of perpetual injunction restraining the Defendant, its agents, privies or assigns from further trespass, resell or attempts at reselling or transferring the right to the said properties, that is, the said two 3 bedroom detached Bungalows House Nos. R 301 and R 302 situate at APICO – Shelter Afrique Estate, Uyo Local Government Area, Akwa Ibom State belonging to the claimant to any third party.
v. N5,000,000.00 (Five Million Naira) Only, being damages for trespass, harassment and or embarrassment by the Defendant on the Claimant and its properties.
The Respondent as Defendant in its defence added a counter claim dated 17th day of December, 2012 and sought the following:
a. A Declaration that the Joint Venture Agreement for installation of pre-payment water meters at the Claimant’s Shelter Afrique Estate, Uyo dated 12/3/2002 between the Claimant and the Defendant has failed, due to the Defendant’s breach of the terms of the contract.
b. A Declaration that the ownership of House R 301 and R 302 Shelter Afrique being part of the Claimant’s counterpart funding of the joint venture water metering project reverted to the Claimant, the original owner upon failure of the joint venture Agreement and the Claimant has the power of sale of the properties.
c. A Declaration that the Defendant in its status as the operator of the joint venture water metering project between the Claimant and the Defendant at the Claimant’s Shelter Afrique Estate, Uyo, stands in a trustee position of all the counterpart funding or contribution by the Claimant in furtherance of the joint venture and owes a duty to account for the:
i. Counterpart contribution,
ii. Numbers of pre-payment water meters and revenue accrued therefrom to the Claimant being a beneficiary of the joint venture project.
AN ORDER that the Defendant account to the Claimant for the monies, which amount will be fixed after discoveries and interrogatories being the cash contribution by the Claimant as its counterpart funding of the joint venture water metering project, the number of the pre-payment water meters installed by the Defendant.
Issues were joined and the matter proceeded to trial after which the Court handed down its decision with a dismissal of the main claim and granted the counter claim.
Facts leading to this appeal can be summarized in the following way. The parties entered into a joint venture agreement to install pre-paid water meters in the Respondent’s estate, the Appellant alleged that the Respondent defaulted in its financial obligations to the joint venture and in order to offset some of the financial obligations and facilitate the project, the Appellant bought two 3 bedroom houses from the Respondent and documentation clearly showed that the total sum of N7 million Naira being cost of the two houses be deducted from the indebtedness of the Respondent to the Appellant as counterpart funding which was approved and the Appellant took possession of the houses, occupied it from 2003 to 2012 when without any lawful excuse, the Respondent caused a quit notice to be issued on the occupants of the two houses who are staff of the Appellant thus the claim and judgment entered against the Appellant and this appeal.
As required by the Rules of the Court, the Appellant’s brief settled by UYO-OBONG UDOM, ESQ., dated the 30th January, 2017 was filed on the 6th day of February, 2017 but deemed on the 23rd day of January, 2019. It distilled three (3) issues for determination as follows:
i. Whether from the evidence before the trial Court, the Court was right to hold that the two houses in issue formed part of the Respondent’s counterpart funding of the joint venture contract and therefore joint venture properties and not the exclusive properties of the Appellant.
ii. Whether the trial Court was right to hold that since there was no relief in the writ for an order setting aside the purported sale of the two houses in issue, the said purported sale could not be set aside by the Court.
iii. Whether from the totality of evidence before the trial Court, the judgment of the trial Court was not against the weight of evidence.
The Respondent on its part filed a Respondent’s Brief settled by JAMES ESSIEN, ESQ., dated 14th day of September, 2017 filed on the 18th day of September, 2017 and deemed on the 23rd day of January, 2019. It adopted the issues formulated by the Appellant’s counsel. Those shall be the issues for determination in this appeal. The Appellant also filed a Reply brief on the 22nd day of March, 2018 dated 19th day of March, 2018 and also deemed on the 23rd day of January, 2019.
After a careful consideration of the Amended Notice of Appeal, the Record of Appeal and the briefs of learned counsel in the matter, the Court finds it expedient to adopt the issues donated by the Appellant for resolution in this appeal because the Respondent merely reproduced the issues formulated by the Appellant thereby adopting same. They are the same issues presented by the Appellant. The Respondent also argued issues 1 and 3 together, for convenience, expediency and in order to avoid repetition the Court shall also consider them together.
ISSUE ONE & THREE
Whether from the evidence before the trial Court, the Court was right to hold that the two houses in issue formed part of the Respondent’s counter funding of the joint venture contract and therefore joint venture properties and not the exclusive properties of the Appellant.
Whether from the totality of evidence before the trial Court, the judgment of the trial Court was not against the weight of evidence.
The Appellant in arguing the first issue submitted that the two houses were sold to the Appellant and documents evincing the sale tendered before the Court below and there was no mention that the properties were part of joint venture properties, referred to Exhibits 2, 3, 4, and 4A wherein the Respondent continuously used the word purchased and sold and that there is no mention of ‘joint venture property’ or ‘counter funding’ or ‘joint venture’ or ‘joint ownership’. Appellant quoted from Exhibit 3B to stress the fact that there was never the issue of joint venture property because the words used were ‘purchase’ and ‘sold’ and Courts are enjoined to give words their plain meaning, citing USMAN DANTATA JNR VS. MOUKTAR MOHAMMED & ANOR. (2011) LPELR-9117 (CA).
Appellant contended that the source of the funds used to buy the houses was not in issue, as it was funds standing to the credit of the Appellant for services already rendered and the wordings of Exhibit 3A on payment for purchase and price are very clear. Appellant demonstrated it with 7 points and highlighted the facts that the Appellant purchased the houses in an outright deal, the Appellant was an independent contractor and not a partner in the joint venture, the obligation on the Appellant under the joint venture did not include the houses and that there was no settlement that payments due to the Respondent would take place before any takeover of the properties. Furthermore, that the trial judge agreed with the Appellant that Exhibit 4A has an acknowledgement of the purchase of the houses but suddenly turned round to find that money used in purchasing the houses was counterpart fund, meanwhile the Appellants pleaded the Respondent’s indebtedness to it at paragraphs 8-12 of the Statement of Claim and 5 and 6 of the reply to Statement of Defence and Counterclaim.
Appellant on the authority of OLORO JAY JAY VS. SKYE BANK PLC (No citation) which relied on ALHAJI JIMOH AJAGBE VS. LAYIWOLA IDOWU (2011) LPELR-279 (SC); J. E. OSHEVIRE LTD. VS. TRIPOLI MOTORS (1997) 5 NWLR (PT. 503) 1; BENJAMIN UKELERE VS. FIRST BANK OF NIGERIA (2011) LPELR-3869 (CA) submitted that the Court cannot make a new contract for the parties outside the documents entered into by the parties.
Furthermore, the Appellant submitted that its witness was resolute that the properties did not belong to the joint venture but the Court below erred in not relying on the uncontroverted evidence, citing SALAMI VS. AJADI (2012) ALL FWLR (PT. 615) 1. The Appellant urged the Court to note that all the documents in respect of the purchase of the houses (particularly Exhibit 2, 3 A, 4 and 4B) were drawn up by the Respondent and not the Appellant or a third party. It urged the Court to hold that the documents are admission against interest and that the trial Court’s reliance on ODUTOLA VS. PAPERSACK (NIG.) LTD. (2006) 18 NWLR (PT. 1012) 470 was in error as exhibits 2, 3 and 4 corroborates the content of Exhibit 3A and 4A. It urged the Court to find for the Appellant under issue one.
The Appellant on issue three submitted that it was abundantly clear from the avalanche of documents tendered that the Respondent frustrated the joint venture project by its failure to provide needed funds and noncompliance with the express terms of the contract. That contrary to the holding in TRADE BANK VS. CHAMI (2004) ALL FWLR (PT. 235) 118, the Respondent failed to respond to business letters written to it and despite such glaring breach, the trial Court did not see anything wrong and in the circumstances, the decision was against the weight of evidence and therefore unsustainable and should be set aside. Appellant finally urged the Court to allow the appeal and find for the Appellant as per its reliefs.
ISSUE TWO
Whether the trial Court was right to hold that since there was no relief in the writ for an order setting aside the purported sale of the two houses in issue, the said purported sale could not be set aside by the Court.
The Appellant in arguing this issue submitted that the Court erred in finding that there was no relief for setting aside of the purported sale of the property and therefore the sale could not be set aside. It highlighted the reliefs stated in the statement of claim which included one for a declaration that it was the lawful owner of the houses which it had been in occupation since 2003 and the Respondent only contested it in its statement of defence and counterclaim particularly paragraph 6 which was traversed. It contended that the Respondent did not even establish before the Court that it was the owner of the properties; it did not present evidence nor any document to back up its assertion. Furthermore, that the Court found that the Respondent should not have sold the 2 houses in dispute, referred to pages 384 of the record of appeal. Appellant submitted that even in the face of that finding, the Court below erred in not declaring any sale wrongful and to set it aside. It urged the Court to set aside the perverse finding of the trial Court (not borne out of evidence) because the Court found that the respondent had no power to sell the houses but failed to do the needful as a consequential order, Citing KAREEM SUNDAY VS. THE STATE (2014) LPELR-2415 (CA) on what is a perverse decision and relied on MRS. FOLUKE MUDASHIRU & ORS. VS. IBRAHIM ABDULLAHI & ORS. (2011) LPELR-4550 (CA); AWONIYI VS. & ORS. VS. THE REGISTERED TRUSTEES OF AMORC (NIG.) (2000) LPELR-655 (SC) on orders not asked for but which are necessary to give effect to the judgment of the Court. The appellant finally on this issue urged the Court to find for it and set aside the erroneous and perverse finding of the trial Court.
The Respondent reacting to the said issues submitted that the Court below did a thorough evaluation of the joint Venture Agreement (Exhibit 1) between the parties to arrive at the judgment. The joint venture agreement it submitted is likened to a partnership arrangement as decided in UREDI VS. DADA (1988) LPELR-3425 (SC); GALADANCHI VS. ABDULMALIK & ANOR. (2014) LPELR-23593 (CA) and OKIN & ANOR. V. OKIN (2016) LPELR-41165 (CA) and the arrangement between the parties qualified as a partnership. That it was in furtherance of the agreement that the 7 Million Naira was demanded by the Appellant as part of Respondent’s contribution, referred to Exhibit 3 and the reply came in Exhibit 3A. It further argued that the Appellant in tagging the sum of N7 million as debt but was not tied to any such debt on record, it contended that it was referring to contributory funding predicated on Exhibit 1 and to be paid as contributory fund which the trial judge rightly found as such. It submitted that the houses being claimed was part of what the respondent was to contribute to the project and because profit sharing has not commenced.
Arguing further the Respondent said oral evidence of Appellant’s witness cannot alter Exhibit 3 and relied on OBIAZIKWOR VS. OBIAZIKWOR (2007) VOL. 37 WRN 106 which explained Section 132(1) of the Evidence Act. It submitted that the trial Court’s reliance on INEC VS. OSHIOMOLE (2009) 4 NWLR (PT. 1132) 607 cannot be faulted. The Respondent added that the Appellant by its own showing included the two houses as part of the joint venture properties reflected in Exhibit 15. It added that the two houses were properties of the joint venture having being purchased from counter fund funding and cannot be separated from the partnership.
On the use of the words ‘purchase and sale’ in the documents, the Respondent contended that it is immaterial that the documents bear the name of one of the partners, relied on MORRIS VS. BARRET (1829) SY & J; Halsbury Statutes of England (3rd Edition) Vol. 24, 1970 London Butterworth page 511. Respondent acknowledged that the joint partnership was not created as a separate legal entity and the Respondent cannot sell to itself its own property. It referred to D. J. Bakibinga “Nigerian Law of Partnership” O.A.U. Press ltd, Ile Ife (1989), at p.55. Respondent opined that it would have been different if the houses were purchased from the Appellants private funds, relying on BABATUNDE & ANOR. v. MODEL INDUSTRIES NIGERIA LTD. (2003) LPELR-6079 (CA). The Respondent went on to urge the Court to find for the Respondent under issues one and three.
The Respondent further argued that a party seeking a relief must set it out clearly and specifically relying on OLALOMI INDUSTRIES LTD. VS. NDIC (2002) FWLR (PT. 313) 1984; OYEKANMI VS. NEPA (2001) FWLR (PT. 34) 404 and ALHAJI IBRAHIM ABDUL HAMID VS. HABIB NIGERIA BANK LTD. (2001) FWLR (PT. 44) 527. It submitted that the Court will not grant a relief not specifically prayed for, citingNDULUE VS. IBEZIM (2002) FWLR (PT. 110) 1951; ALHAJA ADELEKE VS. ALHAJI RAJI & ORS. (2002) FWLR (PT. 116) 817.
The Respondent contended that consequential orders are predicated on sympathy or sentiment but on established principles, one of which is that it must be ancillary or incidental to the main claim, as decided in BABATUNDE ADENUGA VS. J. K. ODUMERU & ORS. (2001) 1 SC (PT. 1) 72 which held that consequential order is founded on the main relief. It referred to the decision in EGBE VS. A. G. FEDERATION (2004) ALL FWLR (PT. 214) 169 and ELIGWE VS. OKPOKIRI (2015) 2 NWLR (PT. 1443) 348.
Proffering further arguments, the Respondent submitted that the sale of the properties touch on a third party?s interest which makes it mandatory to ask for a specific relief. It argued that the Appellant failed to amend its pleadings to incorporate the essential relief, therefore the Court will not grant a relief not sought for, citing DR. SALUBI VS. MRS. NWARIAKU (2003) FWLR (PT. 154) 401. It argued that in the event of the partnership failing, the Respondent is the main beneficiary, who should take over the joint venture assets and referred to Article 8.2 of Exhibit 1.
The Respondent raised the issue of unaccounted joint venture funds in the custody of the Appellant to contend that the Appellant should have rendered account instead of claiming properties that do not belong to it. It finally urged the Court to find for the Respondent and dismiss the appeal with cost.
The Appellant in reply contended that it was established by evidence that the contract was frustrated by the Respondent after the Appellant had invested much of its own funds and the Respondent is currently enjoying the revenue from the installations made by the Appellant.
Specifically on issue one and three, the Appellant submitted that the Appellant was an independent contractor and not a partner as understood by the trial Court and most of the basic features in a partnership are lacking in the arrangement between the parties, citing OKIN & ANOR. VS. OKIN (2016) LPELR-41165(CA). He named some of the features as follows:
i. The business of installation of meters in the estate was not jointly owned.
ii. Parties not jointly liable for; losses as provided by Article 5.1 which forbids any sharing of liabilities.
iii. That Article 5.5 provides that the Appellant shall bear the expenses of all equipment, tools and logistical support to all its employees.
iv. That Article 6.5 says the Appellant as Contractor shall be an independent contractor on the site and shall pay for the services for the services of any employee of the employer.
The Appellant supported the findings of the trial Court at pages 374 which held that there was no partnership and that finding was not challenged by a cross appeal, therefore all arguments likening the JVA to a partnership are untenable and do not arise.
On the assets and properties envisaged under the JVA, the Appellant contended that it did not include houses, as Article 2.1 clearly listed the items envisaged and supported by Article 8.2 and 9. The Appellant submitted that the JVA funds were meant for the use of the Appellant and therefore constituted debt if not paid once the Appellant had commenced its services, referred to Exhibit 1, the JVA which also circumscribed what the technical party was meant to do. Learned counsel for the Appellant relied on Article 2.1, 6.5 and 7 of the JVA. He urged the Court to find that the houses were the services the Appellant was to provide to its employees and referred to Exhibit 3. Furthermore, that the title and items in Exhibit 2 clearly shows that the sale of the houses was an outright sale and not part of project assets because there is no condition mentioned in respect of the purchase. Appellant relied on the case of BFI GROUP CORPORATION VS. BUREAU OF PUBLIC ENTERPRISES (2013) ALL FWLR PT. 676 444 on the use of documents to resolve conflict in the evidence of witnesses. Appellant submitted further that the Respondent did not release the houses on the same date Exhibit 3 was made.
The allocation by Exhibit 3A was upon receipt of payment and release was made on 2nd March, 2003 well into the performance of the project and it was therefore entitled to payment received in form of the houses and this was evidenced by Exhibit 7 and 15 which shows that an account was rendered and it shows an outstanding yet to be paid to the Appellant. Exhibit 3A also mentioned deed of assignment and the argument is if it was not an outright sale how come the need to execute a deed of assignment was contemplated? The contention of the Appellant is that the houses were in exchange for cash that the Respondent was to pay the Appellant and the holding of the Court below that the use of the word purchase in Exhibit 4A did not change anything was therefore perverse, citing ABUBAKAR VS. NASAMU (2012) ALL FWLR PT. 360 1208; TEJU VS. SUBAIR (2016) LPELR-40087 (CA) and USMAN DANTATA VS. MOHAMMED (2011) LPELR-9117 (CA) on the interpretation of documents and which means the money was returned as services rendered and a party cannot resile from a contract it entered into. Appellant argued that the Respondent did not prove any indebtedness of the tune of N7million Naira and if that was its contribution, was the Respondent expected to be paid back.
On the inclusion of the sum as part of Exhibit 15, the Appellant explained it that it was to show the total money received by the Appellant from the Respondent, it was not reflected as money meant to be refunded and therefore the findings of the trial judge were perverse after relying on Exhibit 15 to reach its conclusion and that it should have also done the needful in finding that the Respondent was not owed anything. Continuing the Appellant submitted even if it is found that the cost of the houses was Respondent’s contribution, it still cannot be owned by the Respondent because it had no share in the funds of the JVA. The argument of the Appellant was that the funds used to buy the houses was duly earned and the conclusion of the trial Court that the Appellant paid nothing for the houses is wrong because the money was not funds of the JVA because there was no dedicated fund for the JVA. All payments made to the Appellant were for its use.
In reply to issue two the Appellant submitted that on the trial Court’s finding at page 382 of the record, that, the two houses could not revert back to the Respondent, it should have made an order nullifying the purported sale made by the Respondent but it shied away from doing so on the ground that the Appellant did not seek for a specific order nullifying the sale. This was in spite of the fact that the purported sale was established by evidence. Appellant submitted that the Court below having found that the Respondent had no right to sell the two houses, failed to find that the houses revert to the Appellant even in the light of Appellant’s pleading at paragraph 11 of its reply to Respondent’s statement of defence wherein it averred and prayed the Court to declare any purported sale null and void, hence, the order sought was incidental to the said prayer as held in BABATUNDE ADENUGA VS. J. K. ODUMERU & ORS. (2001) 1 SC PT. 1 72.
In continuation of arguments, the Appellant submitted that at the point of termination of the JVA, the Respondent was only entitled to water meters installed and related accessories which the Court also found at page 382 of the record of appeal. The only articles or items that can go to the Respondent are the water meters and related accessories which the Court also found at page 383 of the record. The fundamental point made was that the Appellant was employed to offer services and be paid from the revenue the Respondent derived from the installations and the 7 million Naira was part of such payment. The Appellant submitted that the Respondent frustrated the contract and cannot turn round to deny it of benefits lawfully earned. It finally urged the Court to allow the appeal and grant the reliefs sought.
RESOLUTION
The bone of contention in this appeal is very narrow; it revolves around the ownership of the two houses the Appellant purchased from the Respondent in the course of the JVA.
The Respondent refused to perfect the sale of houses and attempted to recover same on the excuse that the Appellant breached terms of the JVA. The trial judge made findings that the Appellant contends are perverse and is not inconsonance with the evidence before it. The relationship between the parties is founded in a JVA – joint venture agreement which is Exhibit 1 wherein the Appellant was described as the independent contractor while the Respondent was the Employer with 40 -60 ratio of contribution. The agreement was for the installation of water meters in the Respondent’s housing estate. The rights and obligations for each party are clearly provided therein. The burning issue therefore is who owns the 2 houses purchased by the Appellant for its staff? The cost of the houses was paid from or deducted from the outstanding payment from the Respondent due to the Appellant, it was so agreed as confirmed by Exhibit 3A and 3B, and Appellant took possession of the houses.
Documentation towards executing a deed of assignment in favour of the Appellant commenced but could not be completed. Problems arose particularly on the failure of the Respondent to meet up with its financial obligations to the Appellant, the Respondent issued quit notices to the staff of the Appellant occupying the houses. By that act the Respondent was claiming ownership of the houses. The funds of the JVA were meant for the use of the Appellant in executing the project. The Appellant was a technical operator of the project and with the scope of work clearly spelt out in Article 2.1 of the agreement and for which the sum of N116 Million was to be expended in the execution of the project and remuneration for the Appellant was to come from Joint Venture Funds as an independent contractor. It was also established in evidence that revenue generated from the project was collected by the Respondent who also failed to remit Appellant’s share and this caused the Appellant to write several letters. Exhibits were also tendered showing various stages of the project in fulfilment of the obligation on the Appellant to give account, Exhibits 19, 20, 21, 22, 23, 24 and 25 are proof of that point. There were demands too on the Respondent to pay up its obligation towards project funding as agreed. There was evidence that several meetings were held where the Appellant complained about the failure of the Respondent to meet up with its counterpart funding.
The Respondent by the agreement, Exhibit 1 was to collect revenue from which, the Appellant was entitled to a portion of the revenue generated. This was not refuted by the Respondent and the cost of the houses came from funds expected from the Respondent. And furthermore, by Exhibit 11, the Appellant was entitled to a share of the revenue generated from the installed meters. Statement of account was also given by the Appellant in Exhibit 2 though not the weekly account as required but then the Respondent never questioned it. It can be explained, the rationale is that the Respondent failed to release funds for the project how can the Appellant be asked to render an account? The trial judge found that the relationship between the parties was not a partnership because of the absence of an agreement to share losses as required by law, particularly Section 9 of the Partnership Law of Akwa Ibom State and of significance here is Article 6.5 of the JVA which clearly described the Appellant as an independent contractor. Other features which clearly distinguish the arrangement between the parties from a partnership is the special relationship as provided in the agreement.
The source of the funds used to purchase the houses are clear from the wordings of Exhibit 3, it is the instruction to the Respondent to deduct the cost of the houses from what was due to the Appellant from the Respondent. It said thus:
“The sum of N7, 000,000.00 (seven Million Naira) only should therefore be deducted from the contract sum under the agreed N46, 504,056.96k which otherwise should have been made out to West African Utilities Metering Systems and Services Limited …to enable us establish our offices and staff residence in time enough for your intended estate commissioning?”
Indeed, there was a stipulation in the agreement requiring the Respondent to make a payment of about N46 million to the Appellant as its contributory payment towards achieving the project. The documents in respect of the sale to the Appellant had no strings attached and neither was it made part of the project properties by another agreement. In the allocation letters, there was no mention that it was part of the project. The Respondent had no reservation in selling the houses to the Appellant in its name. The money meant to come from the Respondent to the Appellant was meant to be deployed to executing the project which includes the provision of meters and its accessories but also a provision in the agreement that the Appellant was an independent contractor. The Appellant made it clear in their letter that the houses were to house their offices and staff residences. The Appellant was not shown to have altered the purpose for which the houses were bought and in any case, it can only be an issue if it was a condition for the sale and that was not established by the Respondent.
To further buttress the point, was the counter fund not meant to also take care of such operational needs of the Appellant? Is the sum to be backed by the bank guarantee from the Respondent meant to be returned or refunded to the Respondent? Assuming the cost or value of the houses was spent on rent, would it have been claimed by the Respondent? If the Respondent wanted to tie the payment of the N7 million as refundable (a loan), it should have clearly said so in its allocation letter or other correspondences but it did not. The Court below found that the N7 million is part of the counter fund to be paid to the Appellant by the Respondent pursuant to Exhibit 2 and 3. It was also established that the Appellant was entitled to part of the revenue generated and collected by the Respondent. Therefore, when the sole witness said it was the private funds of the Appellant, he cannot be totally wrong.
The question of using oral evidence to add to the content of a document is contrary to legal principles and the Court’s decision inAIKI VS. IDOWU (2006) 9 NWLR (PT. 984) 47 @ 65 is still good law. I agree that Exhibit 2 and 3 having said it is to be deducted from the total sum of N46,504,056.96, the Appellant narrowed down the source of the N7 million to the counter fund coming from the Respondent and it was entitled to do so.
This was further confirmed by annexure to Exhibit 15 titled ‘Statement of Cash Given to WAUMSSL’ and one of the items listed is the sum of N7 million being receipt from the Respondent in respect of the JVA. The trial judge was therefore right to so find but wrong to conclude that the Appellant paid nothing. The money was paid to the Appellant for services to be rendered according to the agreement. The only time it would be correct to say the Appellant paid nothing is if the Appellant failed to render accountable service and that was not the case here. The simple reason is because other expenses were involved in the course of rendering the services listed in the agreement, such as salaries, office and residential accommodation for staff. As observed earlier could the same argument arise if the money was used to pay staff salaries? The trial judge therefore was wrong to find that the houses duly sold to the Appellant in its name without any condition do not belong to the Appellant but are properties of the Joint venture. The flaw in the reasoning and findings of the Court below is exposed by the clear and express use of the words such as ‘sold to you’, ‘you purchased’, ‘we sold’ and the name of the Appellant prominently mentioned. Secondly, there is no provision in the agreement for joint ownership of property.
The sacred rule in contract is that parties are bound by the terms of an agreement freely entered into by them and the duty of a trial Court is simply to give effect to that agreement entered into by the parties and not to make a new agreement for them. This is an age old legal principle – a notorious one for that matter and there is a plethora of case law on that subject matter. See AFROTEC TECHNICAL SERVICES (NIG.) LTD. VS. MIA & SONS LTD. & ANOR. (2000) 15 NWLR (PART 692) 730; (2000) 12 SC (PT. 11) 1; (2000) ALL NLR 533; BOOKSHOP HOUSE LTD. VS. STANLEY CONSULTANT LTD. (1986) NWLR (PART 26) 87 @ 97.
The duty of Court is strictly to interpret the contract between parties, it has no competence to make a new contract for the parties, see NIKA FISHING CO. LTD. VS. LAVINA CORPORATION (2008) LPELR-2035 (SC) which held thus:
“It is the law that parties to an agreement retain the commercial freedom to determine their own terms. No other person, not even the Court, can determine the terms of contract between parties thereto. The duty of the Court is to strictly interpret the terms of the agreement on its clear wordings. See NIMANTEKS ASSOCIATES VS. MARCO CONSTRUCTION COMPANY LIMITED (1991) 2 NWLR (PT. 174) 411. Finally, it is not the function of a Court of law either to make agreements for the parties or to change their agreements as made. See AFRICAN REINSURANCE CORPORATION VS. FANTAYE (1986) 1 NWLR (PT. 14) 113.” Per TOBI, J.S.C (of blessed memory).
Furthermore, the trial Court on admission against interest discountenanced Exhibit 3A and 4A but all these emanated from the Respondent and makes it liable. They also acknowledged in clear terms the outright sale of the two houses, the application of the authority of ODUTOLA VS. PAPERSACK (supra) was erroneous; this is because Exhibits 2, 3, and 4 corroborates Exhibits 3A and 4A which confirms the outright sale of the houses to the Appellant.
From the agreement, Exhibit 1, the words therein describing joint venture property are clear and the Court below had no business going beyond it to create what was not provided for in terms of joint venture property, and this was after it clearly found that the agreement between the parties is special and not like the ordinary partnership because there was no provision for joint losses. Joint losses can only arise where there is joint profit or joint fund which is lacking in this appeal.
Furthermore, in the allocation letters and handing over keys to the house, the Respondent did not create any impression that the sale was conditional or subject to the tenure of the contract. The Court below erred in reading that into the clear, express words of the agreement and the sale documents.
In interpreting words used in a document the cardinal principle of interpretation is to give words their normal meaning, see DALEK (NIG.) LTD. VS. OMPADEC (2007) LPELR-916 (SC) which held:
“It is now settled that where the words of a contract agreement or document are clear, the operative words in it should be given their simple and ordinary grammatical meaning. See the case of Union Bank of NIGERIA LTD. VS. SAX (NIG.) LTD. & 2 ORS. (1994) 9 SCNJ 1, 8 NWLR (PT. 361) 150.” See also USMAN DANTATA JNR VS. MOUKTAR MOHAMMED & ANOR. (2011) LPELR-9117 (CA).
The trial Court in holding that the houses are the properties of the joint venture certainly went outside the terms of the agreement and that is not from the documentary evidence before the trial Court. Surprisingly, that was after the Court correctly found that oral evidence cannot be admitted to vary the content of the documents. The trial Court failed to take into account the fact that the Appellant is an independent contractor and items to be returned to the Respondent at the expiration of the contract were clearly listed.
The Appellant dutifully supported its pleadings in paragraph 8, 9 10, 11 and 12 by evidence which was neither controverted nor discredited. The findings made by the Court were therefore perverse and not supported by evidence and the Court therefore failed to consider the evidence before it in arriving at the said finding. The trial Court erred in finding that the houses belongs to the project when the project specifically named what project its properties should be.
It is settled law that where a list is given, anything not mentioned is excluded see ONOJA & ORS. VS. GOV., BENUE STATE & ORS. (2015) LPELR-24583 (CA) wherein my learned brother, OBANDE F. OGBUINYA JCA restated the settled position of law clearly expressed in the Latin maxim thus:
“I take refuge in the ancient Latin maxim: expression unius est exclusio alterius or inclusiounius exclusioalterius or enumaratio unius exclusio alterius – the express mention of one thing automatically excludes any other one unmentioned, see OBI VS. INEC (supra); A. G., FED. VS. ABUBAKAR (supra); EHUWA VS. OSIEC (2006) 18 NWLR (PT. 1012) 544; A. G., LAGOS STATE VS. A.-G., FED. (2014) 9 NWLR (PT. 1412) 217.”
The argument of reversion to the Respondent as argued by the Respondent and in purported compliance with Article 8.2 of the agreement is also flawed, the article says:
“At the end of the agreement period or so sooner determination of the agreement, the contractor shall return all bills, books, and other documents to the employer subject to a fair and reasonable settlement of all equipment and accessories taken over by the employer and all other payments due to the contractors.”
Without the occurrence of events mentioned in the article, it is premature to say what is to revert to the Respondent includes the houses. Furthermore, the list does not include houses. And there is no provision that the parties to the JVA shall own joint property, particularly immovable property. There is also a provision for the offset of whatever was due to the contractor. Here again the trial Court was on solid grounds to find that the house cannot revert to the Respondent because it does not fall within the item that can revert to the Respondent. The contention of the Appellant is that there is payment due to it from the Respondent and cost the houses was part of it. It has not been shown that the Appellant collected more than is due to it from the Respondent for the question of refund to even arise. Even if such occurs, it will be the deliberate and conscious decision of the Appellant to surrender the houses if it so wishes. Flowing from there, the Respondent having sold and issued out allocation letters to the Appellant, it lacks the power to sell the houses. In any case, the purported sale was not established by evidence. Houses are not sold and bought by mere words of mouth, it involves documentation and in the same fashion, the Respondent sold to the Appellant and it acknowledged full payment in writing. It cannot be allowed to resile from it.
The trial judge having found that the Respondent lacked power to sell the houses; and furthermore the alleged sale was not proved, the Court below fell short of giving effect to the finding by making an express order of reversion to the position the parties were before the alleged sale and setting the sale aside. In any case, no sale was proved.
I agree with the Appellant that there is evidence that written demand according to the terms of the agreement were not responded to by the Respondent, the Court below therefore erred by placing blame squarely on the Appellant for frustrating the agreement. It is preposterous to demand account by the party which failed to provide the finances required and according to contract. The Court was merely massaging the Respondent without any basis or justification.
From the findings above, the judgment was definitely against the weight of evidence and the findings were perverse which makes it imperative for such findings to be set aside in the interest of justice which is the bounden duty of the Court.
Now on issue two, I agree with the Respondent that generally, a Court will not grant a relief not specifically prayed or sought for in the reliefs, see OLALOMI INDUSTRIES LTD. VS. NIDB (2002) FWLR (PT. 313) 1984, OYEKANMI VS. NEPA (2001) FWLR (PT. 34) 404; ALHAJI IBRAHIM ABDULHAMID VS. HABIB NIGERIA BANK LTD. (2001) FWLR (PT. 44) 527 and NDULUE VS. IBEZIM (2002) FWLR (PT. 110) 1951) 1968. The trial judge politely refused to reverse the purported sale of the two houses which the Respondent alleged but did not prove. This was on the ground that there was no specific prayer for setting aside the sale. Was there a sale? At the point the Court below arrived at the finding that the houses cannot revert to the Respondent, it means they remain the property of the Appellant. It is obvious that the Court was evasive in doing the needful. To reverse the sale would have been necessary if it was proved that there was a sale, that was not even proved and therefore the order is only necessary as a consequential order to firmly reinforce the findings of the Court.
Administration of justice has a principle where a relief called consequential order can be made. A consequential order was described in the case of NOEKOER VS. EXECUTIVE GOVERNOR OF PLATEAU STATE & 0RS. (2018) LPELR-44350 (SC) thus:
“The Supreme Court had made clarifications on matters pertaining to consequential orders and I specifically refer to the case of CHIGOZIE EZE & 147 ORS. VS. GOVERNOR OF ABIA STATE & ORS. (2014) 7 SCNJ 38 at 57-88 thus: “A consequential order is an order that gives effect to a judgment, it gives meaning to the judgment. It is traceable or following from the judgment prayed for and made consequent upon the relief claimed by the Plaintiff. A consequential order must be incidental and flow directly and naturally from reliefs claimed. It is an offshoot of the main claim and it owed its existence to the main claim. It gives effect to the judgment already given.” In his contribution W. S. N. Onnoghen JSC (as he then was) at page 60 paras. 15 – 25 had this to say: “It is under the above general principle of law that another principle was developed or emerged; that of consequential relief is a principle that enables a Court of law to grant to a party a relief incidental to the main relief(s) and which was/were not claimed by the party in question. It is designed to enable the Court do justice between the parties. It is in line with the above that this Court ordered payment of salary and wages for the intervening period even though not expressly claimed.” See also SULE EYIGEBE VS. MUSA IYAJI (2013) SCNJ 428 at 445-446.” Per PETER-ODILI, J.S.C
It is also trite that where the main claim fails, then the basis for a consequential order becomes nonexistent, a consequential order is only made as a fall out from a main relief which has been granted. A consequential order is merely to give effect to the main relief and make it complete, not giving room for any unclear effect of the order of Court and purposely to do justice. So a consequential order cannot be made where the principal relief is dismissed, see EGBE VS. AG FEDERATION (2004) ALL FWLR (PT. 214) 169 and ELIGWE VS. OKPOKIRI (2015) 2 NWLR (PT. 1443) 348. The failure to make any such order here was because the trial judge ingeniously gave judgment to both parties indirectly when it held that the houses are jointly owned and they belongs to the joint venture, a finding that was out rightly perverse.
Now, having found for the Appellant with regards to the ownership of the houses, it becomes necessary to make a consequential order setting aside any sale real or imaginary, if there was any sale by the Respondent of the two houses. I now also proceed to make a further order restoring possession to Appellant and the Respondent is further ordered to perfect the sale of the two houses in favour of the Appellant by the signing of the deed of assignment or conveyance, consideration having passed. That is what justice demands in this situation. The properties that can revert to the Respondent at the end of the agreement do not include the houses; they are specifically listed in the agreement as found earlier in this judgment.
Flowing from the above findings, the appeal is meritorious and succeeds. The judgment of the trial Court delivered on the 8th day of June, 2015 by Hon. Justice J. I. Unwana is hereby set aside. The Appellant did not appeal against the finding on its claim for trespass and damages that therefore cannot form part of this judgment.
I hereby make the following orders:
i. A declaration that the Appellant is the lawful owner of the two 3 bedroom Bungalows, houses No: R301 and R302 and its appurtenances, situate at APICO-Shelter Afrique ESTATE, Mbiaobong Etoi/Nung Ette, UYO Local Government Area of Akwa Ibom State having fully paid for same and taken possession since 2003.
ii. AN ORDER of mandatory injunction is hereby made compelling the Defendant to immediately execute the appropriate Deed of Conveyance perfecting the transfer of legal title in the two 3 bedroom Detached Bungalows (i.e. House Nos. R301 and R 301) situate at APICO-Shelter Afrique Estate, Mbiaobong Etoi/Nung Ette, Uyo Local Government Area, Akwa Ibom Sate to the Appellant.
iii. AN ORDER of perpetual injunction is hereby made restraining the Respondent, its agents, privies, or assigns from ejecting, threatening or attempting to eject the Appellant and its staff occupying the two 3 bedroom Detached Bungalows situate at APICO-Shelter Afrique Estate, Mbiaobong Etoi/Nung Ette, Uyo Local Government Area, Akwa Ibom State.
I hereby award cost of N200,000.00 in favour of the Appellant and against the Respondent.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the privilege to read, in draft, the erudite leading judgment delivered by my learned brother: Yargata Byenchit Nimpar, ‘CA. I am in full agreement with the reasoning and conclusion of it. I have nothing useful to add to the well- articulated judgment. I too, allow the appeal and abide by the consequential orders decreed in the leading judgment.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the advantage of reading the draft of the lead judgment of my learned brother, YARGARTA B. NIMPAR, JCA just delivered. I agree entirely with the reasoning and conclusion reached that it is not the function of a Court to either make agreement for parties and or change their terms of agreement. That being the case, the learned trial judge was clearly in error to have imported into the contract terms outside what the parties agreed upon.
It is for these, and the more detailed reasons in the leading judgment that I too shall enter an Order allowing this appeal. I abide by the consequential orders.
Appearances:
Samuel UdiminueFor Appellant(s)
Ubongabasi PetersFor Respondent(s)
