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WILLOUGHBY NIG. LTD & ANOR v. HON. MINISTER FEDERAL MINISTRY OF TRADE AND INVESTMENTS & ANOR (2020)

WILLOUGHBY NIG. LTD & ANOR v. HON. MINISTER FEDERAL MINISTRY OF TRADE AND INVESTMENTS & ANOR

(2020)LCN/15925(CA) 

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, May 15, 2020

CA/A/456/2015

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

1. WILLOUGHBY NIGERIA LIMITED 2. RT. HON (CHIEF) STANFORD ONYIRIMBA APPELANT(S)

And

1. THE HON. MINISTER, FEDERAL MINISTRY OF TRADE AND INVESTMENTS 2. THE FEDERAL MINISTRY OF TRADE AND INVESTMENTS RESPONDENT(S)

 

RATIO:

ISSUES OF DETERMINATION FROM THE GROUNDS OF APPEAL.

It is in fact the law that all parties must formulate their issues for determination from the grounds of appeal. This principle was affirmed by the Supreme Court in BENJAMIN ONWUGHAMBA EZENWA VS. OKPARA OKO & ORS (2008) LPELR – 1206(SC) where it was held thus:
“…it is settled in law that whereas ground(s) of appeal must arise from the decision appealed against, issues for determination must be formulated from the said grounds of appeal otherwise they are invalid.” PER MOHAMMED BABA IDRIS, J.C.A.

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): The Appellants in this appeal by Notice of Appeal dated 7th July, 2015 and filed on the 8th day of July, 2015 appealed against the decision/judgement of the High Court of the Federal Capital Territory, Abuja in Suit No. FHC/HC/CV/935/2014 delivered on the 10th of day of June, 2015 by Honourable Justice O.O. Goodluck wherein the Court dismissed the case of the Appellants.

The facts of the case leading to this appeal as adduced from the pleadings and evidence tendered at the trial Court are to the effect that the Appellants sued the Respondents for breach of contract and non-payment of the balance of the contract sum to the tune of N26,350,000 (Twenty-Six Thousand, Three Hundred and Fifty Thousand Naira). The Respondents as the Defendants in the trial Court failed to file a defence neither were they represented by counsel even though there was evidence of proof of service of the originating processes.

The 1st Appellant a company engaged in consultancy services and training programmes entered into a contract to provide a two-day training induction workshop for the Chairman, Members of Boards, Chief-Executive Officer and Directors of Parastatals of the Respondent. The Appellants recounted that the letter of award of contract got lost in an armed robbery incident and that the cost per fee per participant is N126,750. The cost fee for the programme was noted in an internal circular to all heads of parastatals, the circular, the CTC of the contract and letter of award were not tendered in evidence.

The Appellants in the trial Court maintained that aside from the 250 persons, an extra cost of One Million (1,000,000) was charged to bring the contract sum to N26,350,000 but no evidence was presented to this effect in the trial Court. The Appellants also alleged that only N2,500,000 was paid as part payment from the contract sum. The Appellants being dissatisfied with the decision of the trial Court sought leave of the Court of Appeal to appeal against the decision. In accordance to the Rules of Court, parties filed and adopted their respective briefs of argument at the hearing of the appeal.

In the Appellants’ brief two (2) issues were distilled for the determination of this appeal to wit:
​1. Whether by the evidence adduced by the Plaintiffs in the Court below, a valid and binding contract was established between the parties to this suit.
2. Whether the Plaintiffs discharged the burden of proof placed on them in the peculiar circumstances of the suit to warrant their entitlement to judgment.

As it relates to issue one, counsel for the Appellants submitted that the trial Court refused to admit certain public documents on the grounds that they were not certified even though the Court notes that subpoena and hearing notices were issued. The Court then held that it was “unpersuaded” that a binding contract has been established and that the Plaintiff ought to have tendered a certified true copy of the contract or letter of award, failure to do so is fatal to this action.” Counsel for the Appellants then argued that the letter of award of contract in the pleading inevitably makes that document part of the pleading of the Appellants. Counsel also argued that issues were not joined by the Defendants in this suit and obviously the letter of award of contract was not in dispute to warrant documentary proof of same.

Counsel then argued that the terms of the contract were laid bare before the Court both in the pleadings and oral testimony. Additionally, counsel argued that the record of the Court below shows that despite service of the originating processes, hearing notices, notice to produce and subpoena duces tecum, the Defendants not only failed to appear in Court to answer to the writ of summons but also did not file any statement of defence. The Appellants then argued that it is also submitted that when evidence is unchallenged the Court ought to accept such evidence in proof of the issue in contest.
Counsel also argued that from decided cases the Plaintiff ought to rely on the weakness of the Defendant’s case if their case strengthens that of the Plaintiff. Counsel additionally, argued that by Section 167(d) of the Evidence Act there is a presumption of withholding of evidence by the Defendants. The case of OLUSANYA VS. OSINLEYE (2013) 7 NWLR (PT. 1367) 148 was referred to. Counsel further argued that by virtue of Order 30 Rule 20(2) of the High Court of the Federal Capital Territory Abuja (Civil Procedure Rules), 2004 a defaulting Defendant will have his defence, if any, struck out and be replaced in the same position as if he had not defended. From the foregoing the Appellants argued that the trial Court in the compelling circumstance is to accept and rely on the case as put forward by the Plaintiffs which in actual fact are credible and plausible. Counsel for the Appellants then submitted that the trial Court ought to have made use of the documents in its case file which had gone through adjudicatory process by means of notice to produce, subpoena and oral testimony and failure to do that occasioned a miscarriage of justice.

Additionally, the Appellants’ counsel argued that the Court admitted Exhibits PW1A (Seminar brochure and list of participants), PW1B (conference bag for the 2 day workshop) and PW1C (statement of account detailing deposit of 2.5 Million for the workshop paid by the Ministry) which were completely ignored in the judgement but which show that a valid and binding contract had been established. The Appellants then urged this Court to construe all the evidence adduced by the Appellants at the Court below and properly evaluate them.

As it relates to issue two, the Appellants argued that a careful perusal and evaluation of the evidence of PW1 will show that it convincingly stated the case of the Plaintiffs and discharged the burden of proof of said contract due to execution and breach by parties to the suit. The Appellants further submitted that he had complied with Sections 132, 133(1) and (2) and 134 of the Evidence Act, 2011 as the testimony of PW1 and all three exhibits tendered, satisfactorily established a valid, binding and subsisting contract. Additionally, counsel for the Appellants argued that the reason of the lower Court’s dismissal of its case (i.e. the letter of award and the internal memo not been certified) in this circumstance is not correct as the letter of contract ward was not in dispute since the Defendants never joined issues with the Appellants and a recourse to it would have been need if the Defendants challenged same.

The Appellants’ counsel also argued that it is not the fault of the Plaintiff that the letter was not tendered as he had already pleaded that the original was lost and gave notice on the Defendant to tender same and even after notice to produce the Defendant did not do so. The Appellants then submitted that the Court below committed a fatal error when it indicted itself and stated that even where the evidence is unchallenged and uncontradicted, the trial Court still has the duty to evaluate it, however the Court did not evaluate the evidence presented by the Appellants as the Court did not evaluate the three exhibits before it PW1A – C.

Finally, counsel for the Appellants argued that it was wrong for the lower Court to hold that the substantive claim was predicated on documentary evidence as such all primary and secondary must be substantiated by admissibility. The Appellants submitted that it is not in every case that a parties’ case must be established by documentary evidence, it only when the facts in issue have been challenged necessitating dispute. Furthermore, the Appellants in this same line of argument submitted that no declaratory judgement can be given without oral evidence of the Claimant and that unchallenged and uncontradicted oral evidence is admissible to establish the facts on which it is based. The Appellants urged this Court to allow this appeal and grant all the reliefs sought.

The Respondents on their own part also formulated two issues for the determination of this appeal thus:
1. Whether or not there exist a valid, binding and enforceable contract between parties.
2. Whether or not the trial Court ab initio had jurisdiction to hear and determine the suit.

As it relates to its issue one, the Respondents argued that there was no valid contract between the parties. Counsel submitted there need to be offer and acceptance for a valid contract to be formed but from the record of proceedings it is clear that there was no offer made let alone an acceptance. The Respondents also argued that the purported counter copy letter of award Exhibit D was manufactured by the Appellants as it is trite that contracts are awarded by procurement Departments of any Ministry. Hence when due process is followed, the letter will carry a reference number of the procurement department, the Respondents then drew the attention of my Lords to the reference number of Exhibits B and D annexed by the Appellants’ written address and submitted that it is obvious the Appellants do not understand the workings of the Ministry, when they created Exhibit D.

The Respondents also contended that the proper procedure in any Federal Government Ministry for issuance of contract of such a financial magnitude is, after due approval by the Ministerial tenders board, an award letter is issued to a contract/consultant, such a contractor must thereafter respond with an acceptance letter after which an agreement will be duly signed by parties and that the Appellants did not refer to or made mention of the above mentioned documents (acceptance letter and contract agreement) which they ought to possess if the Respondents engaged them in contract.

Additionally, the Respondents argued that the Appellants suo motu amended the terms of the purported contract thereby increasing the contract sum by N1,000,000 (One Million Naira) after the approval of the sum of N25,350,000 (Twenty-Five Million, Three Hundred and Fifty Thousand Naira) and that such singular act of the Appellants is enough to vitiate a contract. The Respondents also argued that Exhibit B instructed heads of all parastatals to make payment into the bank account of the Ministry which shows that the intention of the ministry to fund any such training. The Respondents concluded that no contract exists between the parties.

As it relates to issue two, the Respondents argued that the Court erred in law to have assumed jurisdiction and entertained this matter ab initio. The Respondents submitted that it is settled law that in any action where any of the parties are the Federal Government or its agents, irrespective of the claims or subject matter, the proper Court to entertain the suit is the Federal High Court per Section 251(1)(r) of the 1999 Constitution. Additionally, the Respondents argued that by provisions of our ground norm and since it is the administrative action of a agent of the Federal Government that is being challenged, it is only the Federal High Court that should assume jurisdiction. The Respondents relied on ABSIEC VS. KANU (2013) 12 NWLR (PT. 1370) Pg. 66183 PARAS D – H; INEGBEDION VS. SELO-OJEMEN & ANOR (2013) SCM 74/78 PARA C and NEPA VS. EDEGBERO SC (2002) 18 NWLR (PT. 798) and stated that the judgement itself was erroneously delivered.

The Appellants filed a reply brief wherein they argued that it is trite law that the Respondents can only frame different from that of the Appellants where he either files a cross-appeal or a Respondents’ Notice. The Appellants therefore submitted the Respondents’ issue two raised fresh issues on appeal and ought to be struck out because it is incompetent. The Appellants also submitted that the Respondents’ issue two is one that cannot be raised without leave of the Court.

The Appellants then argued that a Respondent on an appeal can raise an issue of jurisdiction or otherwise but that the issue so raised must be anchored on the ground of appeal which in turn must arise from the ratio in the judgment on appeal. Additionally, the Appellants argued that Section 251(1) of the 1999 Constitution does not confer on the Federal High Court jurisdiction over matters of simple contract and that the High Court has a requisite jurisdiction on matter of simple contract.

Furthermore, the Appellants argued that Respondents did not respond to issue two argued by the Appellants in their brief and the effect of that is that the Respondents is deemed to have conceded the point made by the learned counsel to the Appellants. Counsel for the Appellants also argued that performance and the exhibits tendered in evidence have provided that parties were ad idem. Counsel then submitted that the practice in the ministry on tenders were evidential matters which should be pleaded and testified in Court by their witness which they failed to avail themselves of. On the issue that Exhibit D was manufactured by the Appellants, counsel submitted that it was a matter for evidence which must be proved beyond reasonable doubt within the limits of law and not counsel’s submissions.

Counsel to the Respondents also filed an addendum to its reply brief where they detailed the new exhibits tendered and admitted by the Court of Appeal on the 12th day of June 2018:
EXHIBIT A – Letter of Award of contract
EXHIBIT B – Internal Circular
EXHIBIT C – Letter for release of part payment dated 7th December 2009 and endorsed on 8th December 2009.
EXHIBIT D – Letter from Diamond Bank to 2nd Appellant on CBN Decision to publish names of chronic bank debtors.

Counsel to the Appellants then argued that the documents above have settled the concerns of the Court below of a valid and existing contract as all the documents show that the parties were ad idem in the award and performance of the contract. Finally, the counsel argued that Exhibit D shows that in the performance of the contract, the Appellants had altered their position to their detriment by taking a loan from Diamond Bank PLC in 2009 to execute the contract. Counsel then urged this Court to discountenance the Respondent’s argument in this suit.

MAIN JUDGEMENT
I have read the briefs of argument filed by the parties to this appeal, and I have distilled two (2) issues for the determination of this appeal thus:
1. Whether or not the trial Court ab initio had jurisdiction to hear and determine the suit.
2. Whether by the evidence adduced by the Plaintiffs in the Court below a valid and binding contract existed, and whether the Plaintiffs have discharged the burden of placed on them in the peculiar circumstances of the suit to warrant their entitlement to judgment.

ISSUE ONE
On this issue, the Respondents have argued that the lower Court erred in law to have assumed jurisdiction and entertained this matter ab initio. The Respondents have submitted that it is settled law that in any action where any of the parties are the Federal Government or its agents, irrespective of the claims or subject matter, the proper Court to entertain the suit is the Federal High Court per Section 251(1)(r) of the 1999 constitution. The Appellants on the other hand have argued in their reply brief that it is the law that a Respondent can only frame issues different from the Appellant where he either files a cross-appeal or Respondent’s Notice as all issues by the Respondents must conform to the grounds of Appeal. Counsel for the Appellants had further contended that the Respondents’ second issue raised a fresh point on appeal and it does not fall within the grounds of appeal. Additionally, the Appellants have submitted that the Respondents cannot raise this issue without the leave of Court and the issue should be struck out. Finally, the Appellants had argued that the High Court and not the Federal High has jurisdiction on simple contracts.

It is in fact the law that all parties must formulate their issues for determination from the grounds of appeal. This principle was affirmed by the Supreme Court in BENJAMIN ONWUGHAMBA EZENWA VS. OKPARA OKO & ORS (2008) LPELR – 1206(SC) where it was held thus:
“…it is settled law that whereas ground(s) of appeal must arise from the decision appealed against, issues for determination must be formulated from the said grounds of appeal otherwise they are invalid.”
However, in this case the issue that was raised by the Respondents is an issue of jurisdiction. The argument of the Appellants that even an issue of jurisdiction must be anchored to the grounds of Appeal will not fly.

The law is also trite that an issue of jurisdiction can be raised at any time even for the first time at the Supreme Court. In ANYANWU VS. OGUNEWE & ORS (2014) LPELR -22184 (SC) the Supreme Court held that:
“… It has been held in a plethora of cases decided by this and other Courts, the issue of jurisdiction is so fundamental to adjudication that it can be raised at any time and in any manner even for the first time on appeal and even viva voce. See: Petrojessica Enterprises Ltd vs Leventis Tech. Co. Ltd. (1992) 5 NWLR (Pt. 244) 675: Isaac Obiuweubi Vs CBN (2011) 7 NWLR (Pt.1247) 465 @ 494 D – F. For this reason, the argument of learned counsel for the 1st Respondent to the effect that the Appellant ought to have sought leave because the issue raised deals with a matter that has been constitutionally provided for, is misconceived. In so far as the jurisdiction of the Court has been challenged in whatever form, the Court must consider and resolve it before taking any further step in the matter.”
See also OLIYIDE & SONS LTD VS. OAU, ILE-IFE (2018) LPELR-43711(SC).
Similarly, the same Apex Court in OKOROCHA VS. UBA BANK & ORS (2018) LPELR-45122(SC) hit the nail on the head when it held that:
“The matter or issue of jurisdiction can be raised at any time even before an appellate Court even if it was not raised or determined at the trial, intermediate or appellate Court, provided the procedure of raising it was properly followed by the party choosing to raise it. It needs not always be an attack on the aspect covered explicitly in the judgment. It can be freshly raised on appeal once the subject matter or the statute donating jurisdiction to the trial Court to adjudicate on the issues did not give the Court such jurisdictional power to so adjudicate on, or if any of the parties to the suit who is a necessary party was included or not included in the suit. That is why issue of jurisdiction is most of the time raised as a fresh issue in appeal with or even without leave of the appellate Court.”
From the precedents above it can be concluded that the Respondents can raise the issue of jurisdiction as they did in this case. The argument of the Appellants relating to this issue as being fresh which requires leave and not framed from the grounds of appeal goes to no moment.

Now, going to the crux of the issue of jurisdiction as argued by the Respondents, I find that Section 251(1)(r) of the 1999 Constitution does not apply.
Section 251(1)(r) of the 1999 Constitution provides as follows:
“251.
(1) Notwithstanding anything to the contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters –
r. any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.”
Nevertheless as rightly argued by the Appellants, this is a matter of a simple contract. The Supreme Court held in SOCIO-POLITICAL RESEARCH DEVELOPMENT VS. MINISTRY OF FEDERAL CAPITAL TERRITORY & ORS (2018) LPELR – 45708 (SC) that:
“The provisions of Section 251 of the Constitution of the Federal Republic of Nigeria, 1999 are very clear and unambiguous. It is the section that confers jurisdiction on the Federal High Court, which jurisdiction clearly does not include dealing with any case of simple contract or damages for negligence as envisaged by the action before the trial Court…There is not any scintilla of doubt therefore, that since the claim of the plaintiff/appellant is based on simple contract, breach of which would involve damages, the High Court of the Federal Capital Territory and not the Federal High Court is the appropriate Court for the settlement of such disputes.”
Similarly, in ROE LIMITED VS. UNIVERSITY OF NIGERIA (2018) LPELR-43855(SC) the same Apex Court held that:
“The Federal High Court is a special Court with exclusive jurisdiction limited to those items specified under Section 251 of the 1999 Constitution of the Federal Republic of Nigeria and any other jurisdiction as may be conferred upon it by an Act of the National Assembly. A Court must not while interpreting the provisions of Section 251 of the Constitution, and any other statutes whose wordings are very clear and unambiguous import into them something which is not contained in them. Section 251, has clearly made provisions for action against Federal Government or any of its agencies in any other Court in the proviso after sub-paragraph (s) which reads thus:- ‘Provided that nothing in the provisions of paragraphs (p), (q) and (r) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity.”
As a result of my finding that this matter is one of simple contract, I find that the High Court of the Federal Capital Territory has jurisdiction. I therefore resolve this issue in favour of the Appellants.

​ISSUE TWO
As it relates to this issue, the learned trial judge in his judgment held in page 103 of the record of appeal thus:
“…Nonetheless, where facts are uncontroverted, facts are uncontroverted, the Plaintiff still has the onus of presenting this Court with credible, plausible and persuasive facts that will entitle it to judgment. Besides, it is noteworthy that the substantive claim of Plaintiff’s case is predicated on documentary evidence, all the documents whether primary or secondary evidence of it must be substantiated by admissible documentary evidence. Plaintiff ought to have tendered a certified true copy of the contract or Letter of Award.”

The learned trial judge continued on page 104 of the record of appeal to state that:
“Just as the Plaintiff cannot rely on the default of the Defendant to appear or defend this suit, the Plaintiff cannot rely on the weakness of the Defendant’s case, Plaintiff still has the legal obligation to prove its case by credible and probable evidence in a situation such as this where a declaratory order for breach of term of a contract is sought. I am unpersuaded that a binding contract has been established.”

It is imperative at this point to state that by the ruling given by my learned brother Hon. Justice Mohammed Mustapha on the 12th day of July, 2018 which gave leave to the Appellants to adduce fresh evidence on appeal and admit the following documents: EXHIBIT A – (Counterpart copy of the Letter of Award of contract), EXHIBIT B- (Internal Circular), EXHIBIT C- (Letter for release of part payment dated 7th December 2009 and endorsed on 8th December 2009) and EXHIBIT D- (Letter from Diamond Bank to 2nd Appellant on CBN Decision to publish names of chronic bank debtors), the concerns of the learned trial judge as to whether a binding contract was established has been settled.

The Appellants in this case submitted the counterpart copy of the award letter which the learned trial judge said was needed in order to establish an existing contract. The award letter rightly addressed to the 1st Appellant does in fact award a contract of a two-day workshop at the total cost of N25,350,00 (Twenty-Five Million, Three Hundred and Fifty Thousand Naira) for 200 participants to the Appellants.

The law is trite by Section 86(1) of the Evidence Act, 2011 that “Primary evidence means the document itself produced for the inspection of the Court” and by Section 86(3) that “Where a document has been executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart shall be primary evidence as against the parties executing it.” It therefore goes to show that where a counterpart copy is produced, it is primary evidence. It is noteworthy to mention that primary evidence is also termed Best Evidence which presupposes that no better evidence could have existed than what is adduced.
In SOLID UNIT NIG. LTD & ANOR VS. GEOTESS NIG. LTD (2013) LPELR-20724(CA), the Court of Appeal per Sankey, JCA in P. 40, paras. A – C held that:
“The law is that documents may be proved by primary evidence except in the cases mentioned in the Evidence Act, 2011, particularly in Sections 89 and 90 thereof. Primary evidence means either that (i) the document itself is produced before the Court, (ii) any one of the documents which was executed in several parts, (iii) its counterparts where each has been executed by one or some of the parties and copies produced via one uniform process such as printing, computer or other electronic or mechanical process, etc.”
Also, in the case of LUFTHANSA GERMAN AIRLINES VS. BALLANYNE (2012) LPELR – 7977(CA), the Court of Appeal held that:
“It is a trite general principle, that a party that relies on the contents of a document to establish his case, has a duty to produce the original of the document before the Court. See R. VS. ROBSON (1972) 2 ALL ER 699 at 701. Where many copies of a document (e.g. contract, agreement etc) are made by the process of typing with carbon papers, each copy thereof, including the carbon copies, is primary evidence of the document; provided they are signed or executed by all the parties to the agreement. See FORBES VS. SAMUEL (1913) 3 KB 705.”Per SAULAWA, J.C.A (Pp. 27-28, paras. F – A)”
From the forgoing it can be concluded that the counterpart copy of the award letter Exhibit A submitted by the Appellants is in fact primary evidence which is the best evidence. It is therefore clear that a valid and binding contract has been established between the parties.

The Respondents also alluded to the fact that the award letter was manufactured by the Appellants and that the Appellants does not understand the working of the Ministry as such after due approval by the tender board and an award letter is issued to a contractor/consultant, the contractor must respond with an acceptance letter after which an agreement will be duly signed by both parties. Here, I will note that there is no evidence of this before the trial Court, establishing fraud or any of the facts mentioned by the Respondents. It is settled law that submissions of counsel, no matter how beautifully couched and presented cannot take the place of evidence. See the case of CHEMIRON INT’L LTD VS. EGBUJUONUMA (2007) ALL FWLR (PT, 395) 44; CHIEF (SIR) ELEAZAR IGBOZOR VS. PRINCE NYONG INYANG EFFIONG & ORS (2016) LPELR-40100 (CA).

Additionally, the Respondents drew the attention of the Court to paragraph 9 of the statement of claim at page 5 of the record of appeal wherein the Appellants stated that the contract sum was increased by 1,000,000 (One Million Naira) to accommodate the directors not included in the brochure which clearly shows that the Appellants fixed both terms at will and that this singular act vitiates a contract. The Respondents relied on BEST NIG VS. BLACKWOOD (2011) 45 NSCQR (PART II) 849 – 882.
In BEST NIG VS. BLACKWOOD supra, the Appellant made a counter-offer which amounts to the total rejection of the terms of the contract. However, in this case there is no evidence to prove that the Appellants made a counter-offer. What is clear is that the Appellants in fact accepted the offer.
The law as held in the Supreme Court in a plethora of cases including the case of NPA VS. AMINU IBRAHIM & CO. & ANOR (2018) LPELR-44464(SC) is that:
“…For the variation of the agreed sum claimed by the Respondents to be valid therefore, the Appellant must be informed in writing and it (the latter) must also accept the new or lesser amount of their claim in writing for same to be valid and enforceable, since it is a fresh agreement. It is trite law that agreement for variation of an existing contract must possess the basic characteristics of a valid contract which are known to be offer, acceptance and consideration. See Idufueko v. PFizer Products Ltd and Anor (2014) LPELR 22999 (SC); Unity Bank Plc v Olubiyi (2015) NWLR (pt 7452) 203 at 242.”
Furthermore, in BILANTE INTERNATIONAL LTD VS. NIGERIA DEPOSIT INSURANCE CORPORATION (2011) LPELR-781(SC), the Apex Court held that:
“The basic constituents of any contract are offer and acceptance. And a contract could be oral or written. When a contract is contained in a written agreement, it is that document that determines the intention and terms of the parties to it. It is the terms in that document by which the parties will be bound. And none of the parties to the contract will be allowed to introduce or read into it, a term or terms not contemplated by and agreed to by them.”
From the foregoing it can be concluded that as it relates to the additional N1,000,000 (One Million Naira) for the extra 50 directors alleged by the Appellants the learned trial judge was right to have held that no evidence was presented before it to prove that the extra N1,000,000 (One Million Naira) was mutually agreed by the parties. There was no variation in the contract and the written agreement between the parties is all that exists. Finally, the law is also trite as held in CHIEF S. O. AGBAREH & ANOR VS. DR. ANTHONY MIMRA & ORS (2008) LPELR-235(SC) that:
“Oral evidence will not be admitted to prove or vary or add to the term of any contract which has been reduced into writing.”

The Respondents also alleged that from Exhibit B the internal circular it is clear that it was not the intention of the ministry to fund any such training. First and foremost, it must be mentioned that the Ministry and only the Ministry going by the award letter in all actually engaged the services of the Appellants. The award letter made no mention that the participants would make individual payments to the Appellants. More importantly the Ministry in the internal memo asks for payment to be made to its own bank account which negates the Respondents claim about funding. The Appellant also has no business with who paid for what. Again these are matters that the Respondents would have proved in the lower Court had they bothered to put up a defence.

Finally, as it relates to whether the Appellants have discharged the burden of proof placed on them in the peculiar circumstances of this suit to warrant their entitlement to judgement, the Appellants in their reply brief argued that the Respondents did not respond to this issue. Counsel for the Appellants then stressed that the effect of failure to respond to an issue canvassed by the Appellants is that the Respondents is deemed to have conceded to the point made by the learned Counsel to the Appellants.
This is in fact the law however, the Courts have in a plethora of cases including ONYENAWULI VS. ONYENAWULI & ANOR (2017) LPELR-42661(CA) held that:
“It is to be borne in mind and thus also settled that failure of a Respondent to file a Respondent’s brief, is immaterial and of no moment. This is because, an Appellant, may succeed or fail in his own brief. In other words, that an Appellant succeeds on the strength of his own case, it is not automatic, that when once a Respondent fails to file his brief, that the automatically must win or succeed in the appeal. No. But there is a rider or, call it a big BUT. The consequence of such failure, is that the Respondent, will be deemed to have admitted the truth of everything stated in the Appellants’ brief. Per Ogbuagu, JSC. In the case of Umeh Vs Nwokedi (2016) LPELR-41470 (CA), this Court held: “I have to observe that the absence of the Respondents brief in this case does not make an easy sail for the appellant, though it may imply admission of the argument of the Appellant, by law. The Court of Appeal is still bound to consider the case/argument on its merit and to decide as the justice of the case requires.”
This means that the Court of Appeal still has a duty to consider the case on its merits. Having said this, I find that by tendering and adducing fresh evidence in this appeal as stated above the question of whether the Appellant has discharged the burden of proof placed on them in the peculiar circumstances of the suit to warrant their entitlement to judgment is answered in the affirmative.

In sum, the arguments advanced by the Respondents on this issue lack merit. In view of my findings under this issue, it is hereby resolved against the Respondents and in favour of the Appellants.

The appeal succeeds and I hereby set aside the decision of the lower Court and award judgement in favour of the Appellants in the sum of N25,350,000 (Twenty-Five Million, Three Hundred and Fifty Thousand Naira) which is the contract sum contained in the letter of award.

Respondents shall pay cost of N50,000 (Fifty Thousand Naira) to the Appellants.

PETER OLABISI IGE, J.C.A.: I agree.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, MOHAMMED BABA IDRIS, JCA. I agree with the reasoning, conclusions and orders therein.

Appearances:

T. O. EZEBUIRO, ESQ., with him, O. O. DURUAKU, ESQ. For Appellant(s)

D. C. AFOENYI, ESQ. For Respondent(s)