LIVING FAITH CHURCH WORLDWIDE INCOPRPORATED & ORS v. SUPERIOR CHOICE NIGERIA LIMITED & ANOR
(2019)LCN/13793(CA)
In The Court of Appeal of Nigeria
On Friday, the 25th day of January, 2019
CA/J/266/2016
RATIO
CONTRACT: PARTIES ARE BOUND BY THE TERMS AND CONDITIONS OF AGREEMENT THEY FREELY ENTERED INTO
Parties are bound by the terms and conditions of agreement they freely entered into. In matters of contract where the terms and conditions are embodied in a written document, neither of the parties, nor the Court will be permitted to introduce extraneous terms on which they are not ad idem. In other words, where parties are ad idem on the terms of contract, the role of the Court is to give effect to the terms without more. See: A.G. FERRERO & CO. LTD. V. HENKEL CHEMICALS (NIG.) LTD. (2011) LPELR- 12 (SC); MTN COMMUNICATIONS LTD. V. AMADI (2012) LPELR-21276 (CA); LADIPO V. LAJIDE (1973) 5 S.C. 207 AT 225 ; KOIKI V. MAGNUSSON (1999) 8 NWLR (PT. 615) 492 ; INT. ILE IND. (NIG) LTD V. ADEREMI (1999) 8 NWLR (PT. 614) 268; KAYDEE VENTURES LTD V. THE HON. MINISTER OF FED. CAPITAL TERRITORY (2010) LPELR- SC. 264/2002 .PER UCHECHUKWU ONYEMENAM, J.C.A.
CONTRACTUAL AGREEMENT: WHEN WRITTEN TERMS AND CONDITIONS OF AGREEMENT CRYSTALLIZE INTO CONTRACT
When terms and conditions of agreement are written, to crystalize into a contract, a letter of acceptance must unqualifiedly accept the terms of the particular offer made. See: OMEGA BANK (NIG.) PLC. V. O.B.C. LTD. (2005) LPELR – 2636 (SC); MINI LODGE LTD. & ANOR. V. NGEI & ANOR. (2009) LPELR 1877 (SC).PER UCHECHUKWU ONYEMENAM, J.C.A.
CONTRACT: CONTRACTS MUST BE EXPRESSED I N SUCH A FORM WHICH IS SUFFICIENT FOR THE COURT TO ENFORCE
Accordingly, in order to create a binding contract, the parties must express their agreement in a form which is sufficiently certain for the Courts to enforce. OMEGA BANK (NIG.) PLC. V. O.B.C. LTD. (2005) 8 NWLR (PT. 928) PG. 547 SC. Therefore, before any contract or agreement can be said to have come into existence in law, there must be an unmistaken and precise offer and unconditional acceptance of the terms mutually agreed upon by the parties thereto. In other words, the parties to the agreement must be in consensus as regards the terms and conditions freely and voluntarily agreed upon by them. If the terms and conditions of the agreement are uncertain or vague as to defy ascertainment with reasonable degree of certainty, there can never be a valid agreement known to law which can be said to offer itself for enforceability. BILANTE INTL LTD V. N.D.I.C (SUPRA); ODUTOLA V. PAPERSACK (NIG.) LTD. (2006) 18 NWLR (PT. 1012) PG. 470; NNEJI V. ZAKHEM CON. (NIG.) LTD. (2006) 12 NWLR (PT. 994) PG. 297.PER UCHECHUKWU ONYEMENAM, J.C.A.
CONTRACT: OFFER: IMPLICATION OF AN OFFER UNDER CONTRACT LAW
The offer envisaged to initiate a contract is a definite indication by one person to another that he is willing to conclude a contract on the terms proposed which when accepted will create a binding legal obligation. Such offer may be verbal, written or even implied from the conduct of the offeror. MAJEKODUNMI V. NATIONAL BANK OF NIGERIA (1978) 3 SC 119; OMEGA BANK (NIG.)PLC. V. O.B.C. LTD. (2005) 8 NWLR (PT. 928) PG.547.PER UCHECHUKWU ONYEMENAM, J.C.A.
CONTRACT LAW: METHOD OF COMMUNICATING ACCEPTANCE
The settled law is that where an offeror has prescribed a method by which an acceptance of the offer is to be communicated, the offeree must adopt only that method as any other method will render the purported acceptance ineffective. See: BILANTE INTL LTD. V. NDIC (2011) LPELR 781 (SC).PER UCHECHUKWU ONYEMENAM, J.C.A.
CONTRACT: BREACH OF CONTRACT: DEFINITION
A party is in breach of a contract when he acts contrary to the terms of the contract. See:MTN COMMUNICATIONS LTD. V. AMADI (2012) LPELR-21276 (CA); PAN BISBILDER (NIGERIA) LTD. V. FIRST BANK OF NIGERIA LTD (2000) 1 SC 71; CAMEROON AIRLINES V. M. E. OTUTUIZU (2011) LPELR – SC 217/2004. When it is established that a party has made his intention clear beyond doubt that he is no longer willing to perform his side of the bargain, there is a breach of the contract See: COMMISSIONER FOR WORKS BENUE STATE & ANOR. V. DEVCON DEVELOPMENT CONSULTANTS LTD. & ANOR. (1988) LPELR 884 (SC); JAMES SHAFFER LTD. V. FINDLAY, DURHAM AND BRODIE LTD. (1953) 1 WLR 106. Put differently, a breach of contract is committed when a party to the contract without lawful excuse fails, neglects or refuses to perform an obligation he undertook in the contract or either performs the obligation defectively or incapacitates himself from performing the contract.ADEDEJI V. OBAJIMI (2018) LPELR 44360; MR. J.A. ADEOTI & ANOR V. CHIEF J. A. AYORINDE & ANOR (2001) 6 NWLR (PT. 709) 336 AT 345.PER UCHECHUKWU ONYEMENAM, J.C.A.
JUSTICE
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
1. LIVING FAITH CHURCH WORLDWIDE INC.
(BUKURU BRANCH)
2. PASTOR STEVEN AGBO
3. DEACON SAM
4. DEACON SHADRACH
5. ELDER BITRUS BEWARANGAppellant(s)
AND
1. SUPERIOR CHOICE NIG. LTD
2. SHITERY AARON ISTIFANUSRespondent(s)
UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): Against the Judgment of the High Court of Plateau State by R.K. Sha, J., delivered on 9th of June, 2016 in favour of the Respondents, the Appellants filed this appeal.
The Respondents to this appeal as Plaintiffs claimed against the Appellants as Defendants the following reliefs as per paragraph 34 of the statement of claim at page 10 of the record; thus:
a. The sum of N205,000.00 expended in the execution of the contract for the clearing of site, making of the perimeter fencing and fumigating the site at Kingdom Heritage Model School of the 1st Defendant within its premises in Bukuru.
b. The sum of 2.5 Million Naira as aggravated damages for breach of contract, as well as for the mental agony and loss suffered by the Plaintiffs as a result of the repudiation of this valid contract between the Plaintiffs and the Defendants.
c. 10% statutory interest from date of judgment until same is fully liquidated.
d. Cost of the action.
For the brief facts of the case, the 2nd Appellant in August, 2012 as the Pastor-in-charge of the 1st Appellant
1
intimated the 2nd Respondent of the desire of the 1st Appellant to construct Perimeter fencing at her Kingdom Heritage Model School behind the Church Premises. The 2nd Appellant on behalf of the 1st Appellant caused a quotation to be raised for the job while he chose samples of the Perimeter fencing. He subsequently introduced the 2nd Respondent to the 3rd Appellant as the Head of the Technical Committee of the 1st Appellant (see Exhibits P1-P6). The 3rd Appellant prepared Exhibit P20 for a total cost of N1,988,000.00 though the sum of N2,000,000.00 was later agreed upon an inclusion of a gate. The Respondents were given a formal letter of award – Exhibit P12 for which they issued a letter of acceptance and acknowledgement – Exhibits P13 and P14. After parties had signed a draft Project Agreement Exhibit 10; and after the Respondents Exhibits P13 and P14; the Appellants yet gave the Respondents a copy of a project agreement Exhibit PI5 to sign for which the Respondents refused to sign but rather made Exhibit P16.
The Appellants did not accept Exhibit 16 whereupon they opted to revoke the contract and execute it by direct labour.
2
Meanwhile the Respondents who had moved to site and started work was asked to bring their claims as per the quantum of work so far done by them. The Respondents brought a letter of claim for the sum of N205,000.00 which the Appellants found unacceptable. The refusal to pay the claimed expenses for work allegedly done by the Respondents is what led to the action at the trial Court.
Dissatisfied with the judgment of the trial Court, the Appellants filed this appeal on 29th June, 2016. After relevant processes were filed in line with the rules of this Court, the appeal was heard on 31st October, 2018. D. G. Dashe Esq. appeared for the Appellants, while J. D. Morolayo Esq., appeared for the Respondents. Mr. Dashe referred to the Amended Appellants joint brief filed on 4th May, 2018 but deemed 27th June, 2018. He adopted and relied on the same in urging the Court to allow the appeal. Mr. Morolayo referred to the Amended Respondents joint brief filed 31st October, 2018. He adopted the same in urging the Court to dismiss the appeal.
The Appellants counsel narrowed down the issues for determination to three (3) issues as follows:
3
1. Whether within the con of the written offer made by the appellants to the respondents in (Exhibit P12); whether there was a valid acceptance in law that consummated the offer into a valid and enforceable contract in the eyes of the law.
2. Whether the refusal of the respondents to sign Exhibit P15 and the making of Exhibit P16 by the respondents does not amount to a counter offer in law and the indication of their desire not to be bound by the terms of the offer made to them by the Appellants in Exhibit P12.
3. Whether the orders the Lower Court made can be sustained by the evidence and pleaded facts.
The 3 issues formulated for determination by the Appellants were adopted by the Respondents counsel.
I have examined the issues raised for determination. I am of the view that issue 2 is subsumed in issue 1 as the determination of issue 1 will answer issue 2 as raised by parties. Accordingly, I will determine issues 1 and 2 together and issue 3 separately. So I will resolve 2 issues in the determination of this appeal to wit issues 1 and 3 as issues 1 and 2.
4
ARGUMENTS ON ISSUE 1
Whether within the con of the written offer made by the Appellants to the Respondents in (Exhibit P12); whether there was a valid acceptance in law that consummated the offer into a valid and enforceable contract in the eyes of the law.
Mr. Dashe in the Appellants brief submitted that there was no valid acceptance of the Appellants offer by the Respondents in law, and accordingly there was no contract. The learned counsel invited the Court to note that the contract under reference was neither oral nor implied but a written contract. He referred to Exhibit P20 and Exhibit P12 to argue that from a plain and unambiguous reading of Exhibit PI2, the offer of a contract will not come into place until parties had agreed on and executed a project agreement to govern the contract. That from the clear and very operative words of Exhibit P12 the project agreement and project bill of quantities constituted the integral part of the contract as awarded. He contended that it was the content of the offer that the Respondents accepted unconditionally vide Exhibit P14 and as such a valid enforceable contract could only come into effect upon the signing of Exhibit 15 which is the
5
alleged project agreement and project bill of quantities which was to form an integral part of the contract being awarded. He relied on: B.F.IG V. B.BE (2008) ALL FWLR PT 416 PAGE 1915. It was the learned counsels contention that there was no full acceptance on the part of the Respondents, as their act or action of refusing to sign the clean copy of the project agreement Exhibit P15 vitiated their letter of acceptance Exhibit P14, so there was no acceptance in Law.
Mr. Dashe referred to the trial Courts holding at pages 167 (2nd paragraph) to page 170 (1st paragraph) of the record and urged the Court to hold that the position of the said trial Court was wrong and cannot stand in law. He therefore urged the Court to resolve the issue in favour of the Appellants.
In reaction, the learned counsel for the Respondents started by submitting on the contents of a valid and enforceable contract. He cited: NEKA B.B.B. MANUFACTURING CO. LTD. V. A.C.B. LTD. (2004) ALL FWLR (PT. 198) 1175; TSOKWA MOTORS (NIG.) LTD. V. U.B.N LTD. (1996) 9 NWLR (PT. 471) 129; AFONTRIN V. A-G FEDERATION (1996) 9 NWLR (PT. 475) 634.
6
He rehashed the facts of the case relying on Exhibits P1 P6. He invited the Court to compare the 3rd Appellant’s evidence in his Statement on Oath (His evidence before the Court) at paragraph 4(d) and (f) that the 2nd Appellant does not have the power to award contracts, negotiate contracts for any Church Project, and paragraph 6 of his evidence where he admitted that he passed the recommendations of their Pastor (2nd Appellant) to the L.C.C and the L.C.C considered the 2nd Respondent and went into formal negotiations with the 2nd Respondent on the proposed project.
Mr. Morolayo further submitted that a combined consideration of Exhibits P1 – P20 and Exhibits D1 – D4; and Exhibits P10, P12, P13, P14, P15, P16 in particular; will show that there was an agreement on the terms of the contract awarded by the Appellants and an enforceable contract between the parties. He cited: CONSTAIN (W.A) PLC V. SAVOL (W.A) LTD. (2005) ALL FWLR PT. 251 323; EJUETAMI V. OLAIYA (2001) 18 NWLR PT. 746 572; AKINYEMI V. ODU’A INV. CO. LTD. (2012) 17 NWLR (PT. 1329) 209. He noted that under cross-examination of the 3rd Appellant Deacon Samuel, he admitted that neither Exhibit 15 nor Exhibit 16 was signed by either party.
7
The learned counsel for the Respondents urged the Court to find that from the cumulative effect of his submissions, it is glaring that the Appellants flagrantly and unjustifiably breached the contract award in Exhibits P12, P13 and P14; and to resolve the issue in favour of the Respondents.
RESOLUTION OF ISSUE 1
Parties are bound by the terms and conditions of agreement they freely entered into. In matters of contract where the terms and conditions are embodied in a written document, neither of the parties, nor the Court will be permitted to introduce extraneous terms on which they are not ad idem. In other words, where parties are ad idem on the terms of contract, the role of the Court is to give effect to the terms without more. See: A.G. FERRERO & CO. LTD. V. HENKEL CHEMICALS (NIG.) LTD. (2011) LPELR- 12 (SC); MTN COMMUNICATIONS LTD. V. AMADI (2012) LPELR-21276 (CA); LADIPO V. LAJIDE (1973) 5 S.C. 207 AT 225 ; KOIKI V. MAGNUSSON (1999) 8 NWLR (PT. 615) 492 ; INT. ILE IND. (NIG) LTD V. ADEREMI (1999) 8 NWLR (PT. 614) 268; KAYDEE VENTURES LTD V. THE HON. MINISTER OF FED. CAPITAL TERRITORY (2010) LPELR- SC. 264/2002 .
8
When terms and conditions of agreement are written, to crystalize into a contract, a letter of acceptance must unqualifiedly accept the terms of the particular offer made. See: OMEGA BANK (NIG.) PLC. V. O.B.C. LTD. (2005) LPELR – 2636 (SC); MINI LODGE LTD. & ANOR. V. NGEI & ANOR. (2009) LPELR 1877 (SC). In as much as it is not the function or duty of the Court to make contracts between the parties; to ensure Justice of a case, the Court’s duty includes the Construction of the surrounding circumstances including written and oral statements so as to determine the intention of the parties.
Accordingly, in order to create a binding contract, the parties must express their agreement in a form which is sufficiently certain for the Courts to enforce. OMEGA BANK (NIG.) PLC. V. O.B.C. LTD. (2005) 8 NWLR (PT. 928) PG. 547 SC. Therefore, before any contract or agreement can be said to have come into existence in law, there must be an unmistaken and precise offer and unconditional acceptance of the terms mutually agreed upon by the parties thereto. In other words, the parties to the agreement must be in consensus as regards the terms and
9
conditions freely and voluntarily agreed upon by them. If the terms and conditions of the agreement are uncertain or vague as to defy ascertainment with reasonable degree of certainty, there can never be a valid agreement known to law which can be said to offer itself for enforceability. BILANTE INTL LTD V. N.D.I.C (SUPRA); ODUTOLA V. PAPERSACK (NIG.) LTD. (2006) 18 NWLR (PT. 1012) PG. 470; NNEJI V. ZAKHEM CON. (NIG.) LTD. (2006) 12 NWLR (PT. 994) PG. 297.
The offer envisaged to initiate a contract is a definite indication by one person to another that he is willing to conclude a contract on the terms proposed which when accepted will create a binding legal obligation. Such offer may be verbal, written or even implied from the conduct of the offeror. MAJEKODUNMI V. NATIONAL BANK OF NIGERIA (1978) 3 SC 119; OMEGA BANK (NIG.)PLC. V. O.B.C. LTD. (2005) 8 NWLR (PT. 928) PG.547.
The settled law is that where an offeror has prescribed a method by which an acceptance of the offer is to be communicated, the offeree must adopt only that method as any other method will render the purported acceptance ineffective. See: BILANTE INTL LTD. V. NDIC (2011) LPELR 781 (SC).
10
The submission of the Appellants in their joint brief of argument on this issue is that by the Exhibits, particularly Exhibits P12 and P20; and the evidence before the Court, there was no agreement on the terms of the contract awarded by the Appellants to the Respondent. It was the learned counsels contention that there was no full acceptance on the part of the Respondents, as their act of refusing to sign Exhibit P15 vitiated their letter of acceptance Exhibit P14, so there was no acceptance in Law. The puzzle that of a necessity must be resolved is whether from a close scrutiny of all the Exhibits tendered by the parties there existed the elementary three basic essentials to the creation of a contract: agreement, contractual intention and consideration. Succinctly put is that, whether having regard to the evidence before the Court, it could be categorically said that the parties reached an agreement in that an offer was made by the Appellants and accepted by the Respondents as set down by the apex Court in AKINYEMI V. ODU’A INVESTMENT CO. LTD. (2012) 17 NWLR PT 1329 209 AT P 236.
11
Glaringly from the record, the essential documents upon which the parties fought their cases are:
Exhibit P20 – Bill of quantities
Exhibit P10 – Project Agreement signed by parties
Exhibit P12 – Offer Letter
Exhibits P13 & P14 – Letter of Acceptance and acknowledgment
Exhibit P15 -Unsigned Project Agreement (Replicate copy of Exhibit P10)
Exhibit P16 – Unsigned Perimeter Fencing Agreement drafted by Respondents
I shall at this point look closely at the contract documents, conduct of parties, construe the surrounding circumstances including other written statements so as to determine the intention of the parties herein, this is so because in order to create a binding contract, the parties must express their agreement in a form which is sufficiently certain for the Court to enforce. There was no dispute on the project bill of quantities which led to an offer to the Respondents which read:
CONSTRUCTION OF KHMS PERIMETER FENCING
Glory greetings in Jesus name! the subject matter and subsequent agreement with the above contract refers I have been duly authorized by the leadership to award you the contract for the captioned works subject to the following terms and conditions among others;
12
1. Work details: the scope of the work is described on the BOQ
2. Contract sum: shall be Two Million Naira (N2,000,000.00).
3. Contract duration: 14 days from commencement date.
4. Contract documents; the following document shall constitute integral parts of the contract hereby awarded.
i. Project agreement
ii. Project bill of quantities
Please signify your acceptance of this award immediately or within 24 hours in writing on your official letter headed paper with your company stamp. We wish you an outstanding performance. Congratulations
SGD
Elder Bitrus Bewarang Chairman LCC, LFC Bukuru
I wish to note that the content of Exhibit P12 (reproduced above) as written in English is clear and unambiguous. The contract for the captioned work were subject to some terms and conditions as stated clearly on the face of Exhibit P12. I view it was the plain and unambiguous content of Exhibit P12 that the Respondents unequivocally accepted when they wrote an acceptance vide Exhibit P14 dated 3rd October, 2012 which read thus;
13
Sir,
RE: CONSTRUCTION OF KHMS PERIMETER FENCING .
Sequel to your offer letter with the above named subject matter dated 25th October 2012. We hereby unconditionally accept the offer terms and conditions in its entirety as stated. Looking forward to a harmonious business report with you
Thank you Yours faithfully,
SGD
By 2nd Plaintiff/Respondent.
By the content of Exhibit P14 reproduced above, the Respondents made their unconditional acceptance of the terms and conditions contained in the offer letter. By Exhibits P12, P1 there we4 and P20,re unquestionably an agreement, contractual intention and consideration between the Appellants and the Respondents. This in my opinion created a valid and enforceable contract. It is of no moment that Exhibit P12 (the offer letter) read thus the following documents (project agreement and project bill of quantities) shall constitute integral parts of the contract being awarded because the Respondents unequivocally accepted whatever the Appellants had set out to be part of the contract by Exhibit P14 more especially when the Respondents had signed Exhibit P10 – Project Agreement, which the Appellants alleged was a draft.
14
I am mindful of the position of the law that an offer must be accepted on its terms else no valid enforceable contract could be created. The sequence of events and conduct of the parties in the creation of the contract were easily deducible from the contract documents and surrounding circumstances; that: (1) the parties agreed on a project bill of quantities which was rounded up to 2 million Naira. Thereafter (2) the Respondents were given Exhibit P10 – copy of the project agreement which they signed. (3) The Respondents were then formally offered the contract vide Exhibit P12, then the Respondents (4) wrote acceptance letter (Exhibit P14) accepting the terms and conditions of the offer unconditionally. The Respondents equally mobilized to site and started digging. All the essential ingredients of an enforceable contract were present in the sequence of the transaction between the Appellants and the Respondents. Exhibits P15 and P16 were not part of the contract documents because they were not signed by any of the parties and as such could not bind any of the parties. The parties by Exhibits P10, P12 and P14 sealed their contract.
15
Furthermore, the contention of the Appellants that the act of refusing to sign Exhibit P15 constitutes an outright rejection of the offer or meant lack of full acceptance on the part of the Respondents, and so vitiated their letter of acceptance Exhibit P14 cannot stand because Exhibit P15 was not even signed by the Appellants themselves. Having not been signed by the makers, Exhibit P15 is a worthless document in the eye of the law. Accordingly, I hold that the Respondents act of refusing to sign Exhibit P15 is not inconsistent with the contents of their letter of acceptance (Exhibit P14) which pledged unconditional acceptance.
On counter offer, the Appellants relied heavily on the case of AKINYEMI V. ODUA INV. CO. LTD (supra) to submit that Exhibit P16 amounted to a counter offer. The case of AKINYEMI V. ODUA (supra), is quite distinct from the present case. In Akinyemis case, there was a valid legal document submitted by the offeree to the offeror in counter of a valid legal document of the offeror. Accordingly, it was held that the offeree countered the offer made to him. Herein there was neither a valid legal document of offer nor a valid legal document in
16
counter as both Exhibits P15 and P16 were not signed by their makers to wit: the Appellants and Respondents respectively. So at best, Exhibit P16 presented to the Appellants was a useless paper which in law cannot even bind the maker. There was therefore no counter offer by reason of Exhibit P16.
In all, I hold that there was a valid and enforceable contract between the Appellants and the Respondents in that the three basic essentials to the creation of a contract: agreement, contractual intention and consideration were present. I therefore resolve the issue in favour of the Respondents.
SUBMISSIONS ON ISSUE 2
Whether the orders the Lower Court made can be sustained by the evidence and pleaded facts.
Mr. Dashe, learned counsel for the Appellants referred to their contention at the trial Court that the Respondents are only entitled to the quantum meruit for the work they had done which was digging and the only activity within the bill of quantities agreed. He argued that Pw1 the 2nd Respondent agreed under cross examination that the alleged fumigation and clearing of site or grass was not part of the bill of quantities agreed on.
17
He observed that their contention in this appeal is that the Respondents who refused to accept the terms of Exhibit P15 by signing same, or who breached the contract by the making of Exhibit P16 in violation of Exhibit P10 are not entitled to the award of the sum of N600,000. 00. He firmed that the Respondents are entitled to an assessment on the quantum meruit for work done covered by the bill of quantities.
The learned counsel emphasized that the Respondents having failed to sign Exhibit P15 could not benefit from same as the award of N600,000.00 damages stemmed on the bill of quantities in Exhibit P15. Accordingly, he submitted that with the pleadings and the evidence of an expert which stood unchallenged not even under cross-examination, the award of N600,000.00 which is 30% percent of the contract sum was a gift by the trial Court to the Respondents which means the trial Court turned itself to a father Christmas.
He urged the Court to resolve the issue in favour of the Appellants.
In response, Mr. Morolayo for the Respondents in arguing issue No. 3 adopted their submissions on issues No. 1 and 2 above.
18
He firmed that there was indeed a valid and enforceable contract between the Appellants and the Respondents.
He urged the Court to resolve issue 3 in favour of the Respondents.
RESOLUTION OF ISSUE 2
The main complaint of the learned counsel for the Appellants is the award of N600,000.00 damages to the Respondents. He argued that the Respondents having failed to sign Exhibit P15 could not benefit from same as the award of N600,000.00 damages stemmed on the bill of quantities in Exhibit P15. He submitted that with the pleadings and the evidence placed before the trial Court, the award of N600,000.00 which is 30% percent of the contract sum was wrong. I have gone through the record particularly at pages 171 to 173; I fail to see where and how the trial Court stemmed the award of N600,000.00 against the Appellants and in favour of the Respondents on Exhibit P15. I held while resolving the earlier issue that, the refusal of the Respondents to sign Exhibit P15 which I found to be a worthless document because it was not signed by the makers (the Appellants) could not amount to a counter-offer and as such it would be wrong to hold that based on the Respondents refusal to sign the same, they breached the contract.
19
A party is in breach of a contract when he acts contrary to the terms of the contract. See:MTN COMMUNICATIONS LTD. V. AMADI (2012) LPELR-21276 (CA); PAN BISBILDER (NIGERIA) LTD. V. FIRST BANK OF NIGERIA LTD (2000) 1 SC 71; CAMEROON AIRLINES V. M. E. OTUTUIZU (2011) LPELR – SC 217/2004. When it is established that a party has made his intention clear beyond doubt that he is no longer willing to perform his side of the bargain, there is a breach of the contract See: COMMISSIONER FOR WORKS BENUE STATE & ANOR. V. DEVCON DEVELOPMENT CONSULTANTS LTD. & ANOR. (1988) LPELR 884 (SC); JAMES SHAFFER LTD. V. FINDLAY, DURHAM AND BRODIE LTD. (1953) 1 WLR 106. Put differently, a breach of contract is committed when a party to the contract without lawful excuse fails, neglects or refuses to perform an obligation he undertook in the contract or either performs the obligation defectively or incapacitates himself from performing the contract.ADEDEJI V. OBAJIMI (2018) LPELR 44360; MR. J.A. ADEOTI & ANOR V. CHIEF J. A. AYORINDE & ANOR (2001) 6 NWLR (PT. 709) 336 AT 345.
20
May I lean on the apex Court decision in: ADEDEJI V. OBAJIMI (2018) LPELR 44360; wherein His Lordship Peter-Odili, J.S.C called in aid the case of TSOKWA OIL MARKETING COMPANY V. B.O.N. LTD. (2002) 11 NWLR (PT. 777) 163 AT 200; for the Supreme Courts laid down ground rules that guide the Courts in making a finding that a valid contract has been discharged. The apex Court stated thus:
“A valid contract between parties may be discharged in one of four ways known to law, namely:
(a) By performance: or
(b) By express agreement: or
(c) By the doctrine of frustration; or
(d) By breach.”
Clearly from paragraph 17 of the DW1s statement on oath at page 48 of the record, the Appellants want the Court to hold that the Respondents had the contract discharged by the doctrine of frustration via a counter offer through Exhibit P16 and or failure to sign Exhibit P15. I have earlier held that this argument cannot stand for the reason that both referred exhibits are not valid legal documents and as such cannot be relied on to reach any legal decision. The core contract documents between the parties were Exhibits P10, P11, P12, P14
21
and P20 which were all duly signed by the parties. Exhibit P10 is the same as Exhibit P15 but the argument of the Appellants is that Exhibit P10 was a draft copy which the Respondents erroneously signed. The question is if the Respondents had signed Exhibit P10 which is same as the unsigned Exhibit P15 how then did he counter offer through an unsigned Exhibit P16. An unsigned worthless document cannot repudiate a signed document as its source is unknown. So in effect the Respondents did not counter-offer. The case ofAKINYEMI V. ODU’A INVESTMENT CO. LTD. (2012) 17 NWLR (PT. 1329) 209; therefore does not apply to this case. On the contrary, it was the Appellants as Defendants that by breach discharged the contract. The learned trial Judge was right when he evaluated and found thus:
Of course it is the Defendant that breached the contract. They said so themselves in their joint statement of Defence paragraph 18c and d. I reproduce same as follows:
18c. it was resolved by the LCC that the project be executed speedily by way of direct labour so that its completion can be fast.
22
d. That the decision of the LCC was communicated to the Plaintiffs by the LCC Chairman personally the (5th Defendant). (sic)
DW1, the Defendants only witness (the 3rd Defendant) testified in line with this pleading, supporting PW1s evidence that the 5th Defendant, Bitrus Bewarang the LCC Chairman eventually called PW1, the 2nd Plaintiff told him the contract has been cancelled. This apart, the learned Defence counsel, Chris Atibaka Esq., and D.G. Dashe Esq., at page 3 of their final address clearly stated it was the Defendants that revoked the contract. They said in paragraph 13 lines 2 & 3 of their BRIEF SUMMARY OF MATERIAL FACTS that: the Defendants opted to revoke the contract and execute it by direct labour. It is therefore ridiculous and ludicrous for the Defendants to turn around to ask the Court who it was that breached the contract.”
From the record, the learned trial Judge relied on Exhibits P10, P11, evidence of the Respondents as Plaintiffs which was supported by the evidence of the Appellants particularly DW1s statement on oath at paragraphs 14d, 15 and 16, at page 48 of the record to arrive at the fact that the Appellant
23
discharged the contract by breach and the award of damages of N600,000.00 to the Respondents. The reasoning of the learned trial Judge on the damage award as mirrored at pages 170 to 174 of the record is unassailable and as such I cannot disturb it. I hold that the learned trial Judge was right in the orders he made which are in consonance with the evidence and pleaded facts on record.
I therefore resolve this issue in favour of the Respondents.
In all, I hold that this appeal is bereft of merit, the same fails and is dismissed. I uphold the decision of the High Court of Plateau State delivered by R. K. Sha, J. on 9th June, 2016 in SUIT NO: PLD/J317/2013.
I award a cost of N50,000.00 in favour of the Respondents.
TANI YUSUF HASSAN, J.C.A.: I read in draft the judgment of my learned brother, UCHECHUKWU ONYEMENAM, J.C.A. I adopt the reasons in the leading judgment and also conclude that this appeal lacks merit and it is hereby dismissed.
I abide by the order as to costs.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: Having read in draft the lead judgment of my learned brother UCHECHUKWU ONYEMENAM, J.C.A.,
24
just delivered and for the fact that I have nothing useful to add. I adopt the reasoning and conclusion therein to dismiss the unmeritorious appeal.
I also dismiss the appeal and abide by the consequential orders made therein including that on cost.
25
Appearances:
D.G. Dashe, Esq.For Appellant(s)
J.D. Morolayo, Esq.For Respondent(s)
>
Appearances
D.G. Dashe, Esq.For Appellant
AND
J.D. Morolayo, Esq.For Respondent
