PRODECO INT’L NIG. LTD v. TEXOLAND INT’L NIG. LTD (2020)

PRODECO INT’L NIG. LTD v. TEXOLAND INT’L NIG. LTD

(2020)LCN/15324(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Thursday, July 16, 2020

CA/PH/244/2016

Before Our Lordships:

Ibrahim Mohammed Musa Saulawa Justice of the Court of Appeal

Isaiah Olufemi Akeju Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Between

PRODECO INTERNATIONAL NIGERIA LIMITED APPELANT(S)

And

TEXOLAND INTERNATIONAL NIG LIMITED RESPONDENT(S)

RATIO

WHETHER OR NOT AN AFFIDAVIT NOT SWORN TO BEFORE ANY DULY AUTHORISED PERSON CAN BE USED IN EVIDENCE

The Evidence Act, 2011 forbids the use of any affidavit not sworn to before any duly authorised person. See Sections 109 and 112 of THE EVIDENCE ACT, 2011. See UNION BANK VS. ESTATE OF LATE CLEMENT OGEH (2018) LPELR – 46701 (CA); CHIDUBEM VS. EKENNA (2009) ALL FWLR (pt. 455) page 1692. PER AWOTOYE, J.C.A.

DEFINITION OF AN EXPERT

Who is an EXPERT? What qualifies a person as an expert? In SOWEMIMO & ANOR VS. STATE (2004) 11 NWLR (pt. 885) page 515, Niki Tobi, JSC (of blessed memory) had this to say on this point:
“In WAMBA VS. KANO STATE AUTHORITY (1965) NMLR 15 it was held that in certain cases, evidence of opinion of an expert is relevant but he must be called as a witness and must state his qualifications and satisfy the Court that he is an expert on the subject in which he is to give his pinion and he must state clearly the reasons for his opinion.”
The Court must be satisfied that a witness being put forward as an expert is indeed an expert. It behoves on such witness to convince the Court by stating convincingly his qualifications and experience as whether or not a witness is an expert in an area is a question of law for the Judge to decide. See EROMOSELE VS. F.R.N. (2018) UNWLR (pt. 1629) p. 60. PER AWOTOYE, J.C.A.

PRINCIPLES OF ASSESSING DAMAGES FOR BREACH OF CONTRACT

The Apex Court in ARISONS TRADING & ENGINEERING CO LTD VS. MILITARY GOVERNOR OF OGUN STATE & ORS (2009) 15 NWLR (pt. 1163) p. 26 had course to explain the principles of assessment of damages for breach of contract thus:
“It is now firmly settled that in a claim for damages for breach of contract, the Court is concerned only with damages which are natural and probable consequences of the breach or damages within the contemplation of the parties at the time of the contract. See the case of MOBIL OIL NIG LTD VS. AKINFOSILE (1969) 1 NMLR 227. See also AHMED & ORS VS. C.B.N. (2013) 2 NWLR part 1339 p.524.” PER AWOTOYE, J.C.A.

TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by the Appellant who was the Defendant at the lower Court against the judgment of Rivers State High Court delivered on 30/9/2015 in Suit No.: NHC/131/2012 -TEXOLAND INTERNATIONAL NIG LTD VS. PRODECO INTERNATIONAL NIG LTD.

The Claimant had instituted an action against the Defendant claiming as per paragraph 28 of its claim as follows:
“1. A Declaration that the action of the 1st Defendant in refusing to honour the contractual terms entered into between the parties on the 29/03/2012 as contained in the Defendant’s Local Purchase Order No. PIL 12-01391 dated 29/03/2012 constitutes a breach of the contractual agreement.
2. A Declaration that the action of the 3rd Defendant by unilaterally producing and/or procuring a Quality Control Inspection Report rejecting goods supplied by the Claimant contrary to the earlier report made by the 2nd Defendant after a joint inspection constitutes a fraudulent act which precipitated the breach of the contract by the 1st Defendant.

The sum of N132,610,964.48 (One Hundred and Thirty Two Million, Six Hundred and Ten Thousand, Nine Hundred and Sixty-four Naira, Forty-Eight Kobo) only being and representing special and general damages.
4. An Order directing the 1st Defendant to take delivery of their remaining goods now – stock piled at the Claimant’s rented premises at Km 16 Port Harcourt/Aba Expressway.
5. The sum of N500,000.00 per month being cost of the premises where the Defendant’s goods are stock piled with effect from January, 2003 till the satisfaction of judgment debt.
6. The sum equal to 23% percent interest rate on the capital sum of money borrowed from First Bank Plc from January, 2013 till the satisfaction of judgment debt.
7. The sum of equal to 25% (Twenty Five Percent) interest on the judgment debt from the date of judgment until satisfaction of judgment debt.”

In response the Defendants filed their Amended Statement of Defence and counter claimed thus:
“(1) The sum of N10 Million being administrative costs incurred by the 1st Defendant in sourcing for alternative dredging pipes, when the Claimant failed to perform the Contract made between the Claimant and 1st Defendant for the supply of steel dredging pipes.
(2) The sum of N265,500,000.00 being damages occasioned to the 1st Defendant during the 30 standby days on which the 1st Defendant had to repair its existing pipeline, which would have been replaced before August, 2012 if the Claimant had performed the said contract.
(3) An Order compelling the Claimant to remove forthwith, all dredging pipes delivered by the Claimant at the Reclamation Area, FOT, Onne in August 2012.”

The learned trial Judge subsequently heard the parties and later entered judgment in favour of the Claimant (now Respondent) but against the 1st Defendant in the following terms:
“In conclusion, I hold that the Claimant has proved its case as required by law. Judgment therefore entered in favour of the Claimant and I order against the 1st Defendant as follows:
(1) It is hereby declared that the action of the 1st Defendant in refusing to honour the contractual terms entered into between the parties on 29/03/2012 as contained in the Defendant’s Local Purchase Order No. PIL 12-01391 dated 29/03/2013 constitutes breach of the contractual agreement.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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(2) The sum of N36,000,000.00 is awarded as damages to the Claimant, being the value of 36 pieces of pipes supplied the 1st Defendant.
(3) An additional sum of N5,910,964.00 is awarded as damages to the Claimant being accrued interest on the loan from First Bank Plc. up to 12/11/2012.
(4) An additional sum of N1,000,000.00 is awarded as damages to the Claimant being cost of litigation incurred by the Claimant.
(5) The sum equal to 15% per annum interest on the judgment debt until satisfaction of the judgment debt.
(6) The Counter claim of the 1st Defendant is hereby dismissed in its entirety.
There shall be cost awarded against the 1st Defendant accessed at N50,000.00 only. This is the judgment of the Court.”

The 1st Defendant dissatisfied with the said judgment challenged it on appeal vide its Notice of Appeal filed on 12/11/2015.

After transmission of Record of Appeal to this Court parties filed and exchanged Briefs of Argument.

SUBMISSIONS OF COUNSEL
THE APPELLANT’S BRIEF
The Appellant’s Brief is dated 20th day of November, 2017 and filed on the same day but deemed to have been properly filed and served on the 23rd day of October, 2018. Four Grounds of Appeal filed, Learned Counsel admitted the following issues for the determination of the appeal.
(1) Whether the learned trial Judge was right in relying on Exhibit C and the fact that Appellant’s Officers received 36 steel dredging pipes supplied by the Respondent, to hold that the said dredging pipes were brand new as required by the Contract made between the Appellant and the Respondent and that Appellant was in breach of contract in failing to pay for the said dredging pipes, when the maker of Exhibit C was not called to give evidence of the expert opinion contained therein, and the Appellant never issued any Receiving and Inspection Report to the Respondent to show acceptance of the said dredging pipes as stipulated by the Contract? (Distilled from Grounds 1 and 5 of the Grounds of Appeal).
(2) Whether the learned trial Judge was right in holding that the Written Statements on Oath of DW1 and DW2 were not sworn before an officer of the Rivers State High Court authorised to take Oaths, and in consequently expunging the said Depositions from Records in this Suit? (Distilled from Ground 2 of the Grounds of Appeal.
(3) Whether the learned trial Judge was right in holding that DW3 did not qualify as an Expert Witness, and in rejecting his evidence on that ground? (Distilled from Ground 3 of the grounds of Appeal).
(4) Whether the trial Judge was not wrong in finding the Appellant liable for accrued interests on a loan said to have been obtained by the Respondent from First Bank of Nigeria Plc. to supply steel dredging pipes to the Appellant when the Appellant was not a party to the loan transaction and there was no evidence that the loan was utilized by the Respondent to purchase and supply steel dredging pipes to the Appellant? (Distilled from Ground 4 of the Grounds of Appeal).
(5) Whether the learned trial Judge’s reliance on Exhibit A tendered by the Respondent as evidence of the Contract between the parties instead of Exhibit V tendered by the Appellant, and the Reliefs granted in favour of the Respondent can be supported, having regards to the totality of evidence led at the trial? (Distilled from Grounds 6 and 7 of the Grounds of Appeal).

Arguing issue No. 1, it is contended that both parties by the terms of the contract, the Respondent was expected to supply brand new steel dredging pipes to the Appellant. That at page 2 and in clause E of the terms and conditions of the Contract (Exhibit “V”). it is stated that the Respondent will be entitled to payment when it has submitted original copies of the Local Purchase Order, its invoice and a Receiving and Inspection Report (RIR) approved by Appellant’s Quality Control Department. Submitted that Exhibit C is not a Receiving and Inspection Report issued by the Appellant’s Quality Control Department, but a report issued by an officer of the Appellant‘s company for the internal use of the Appellant, particularly in view of Exhibit E issued by the Head if Appellant’s Quality Control Department rejecting the said dredging pipes for failure to conform with the Contract specifications.
Referring to Clause H pages 1 and 2 of Exhibit V. Learned Appellant’s Counsel contended in the instant case, that the Appellant averred that they rejected the 36 steel dredging pipes supplied by the Respondent because they were not supplied by the Respondent, because they were not in conformity with the contract specifications. Submitted that by the terms of the contract, Appellant still have a right to reject materials supplied by the Respondent for non-conformity with the Contract terms, even if the material had been received into the Appellant’s warehouse. That the Court is duty bound to give effect to the agreement of parties and not re-write the Contract for the parties-called in aid the case of Amede vs. U.B.A (2008) 8 NWLR (pt. 1090) page 623 at pages 659-660, paragraphs H-B.

By the terms of contract made between the Appellant and Respondent, learned Counsel submitted that Exhibit C issued by the 2nd Defendant, and the fact of receipt of the Respondent’s dredging pipes into the Appellant’s warehouse were not enough to justify a finding in Respondent’s favour. That the Respondent had a duty to prove the declaration sought by it, that the Appellant was in breach of contract. That the Respondent had to discharge the evidential burden that the 36 pieces of steel dredging pipes were brand new as required by the contract. That the Respondent must succeed on the strength of his case and not on the weakness of the defence. Referred to INEC vs. Atuma (2013) 11 NWLR (pt. 1366) 494 at pages 520-521, paragraphs G-C; 540-541, paras. G-A. That the Plaintiff who seeks declaratory reliefs wins or fails in his case on his own steam and not because the opposing party did not proffer a strong contention or defence to his case.

The Appellant also groused with the learned trial Judge’s placing reliance on Exhibit C to hold that the Respondent’s pipes were brand new. That the said Exhibit C is an expert opinion or the 2nd Defendant who was not called as a witness and did not give evidence at the trial. Submitted that a scientific report containing the opinion of an expert who was not called to give evidence is a worthless document. Referred to Registered Trustees TIBCC vs. Olubobokun (2017) (pt. 1545) page 1 ratio 5. That the learned trial Judge was not right in placing reliance on Exhibit C to find for the Respondent.

Learned Counsel argued further that it is settled law that oral evidence and documentary evidence cannot receive the same treatment in the evaluation of evidence. That the former, if challenged must be accepted as establishing the fact therein stated. While in the latter, a document admitted by consent or by the Court in the absence of its maker, the Court still has the duty to consider the weight to be attached to such documentary evidence before coming to the conclusion as to whether or not it establishes the fact stated therein. Cited the case of Kayili vs. Yilbuk (2015) 7 NWLR (pt. 1457) page 26, at page 69, paragraphs D-G, and pages 70 paragraphs F-G. That the admission of Exhibit C at the trial without objection did not obviate the need to call the maker.

This Honourable Court is urged to resolve issue No. 1 in favour of the Appellant and to hold that the lower Court was not right in relying upon Exhibit C.

On issue No. 2 it is stated that in the course of cross-examination; DW1 and DW2 called by the Appellant stated that they signed their Statements on Oath at the Legal Department of the Appellant. That relying on this evidence, the learned trial Judge held that the depositions of DW1 and DW2 were not sworn before an officer authorized to take Oaths and consequently expunged the said depositions from the records. Learned Counsel submitted that Section 112 of the Evidence Act, 2011 precludes a party from relying on an affidavit sworn before his Counsel, or before a Partner or Clerk of his Counsel. That in the instant case, there is no evidence that the said depositions of DW1 and DW2 were sworn before Appellant’s Counsel, or before a Partner or Clerk of Appellant’s Counsel.

An affidavit, Counsel argued; is a written Statement on Oath made by someone before a person legally authorized to administer Oaths. That in the instant case, the signature and stamp of Mrs. F.I.D Samuel, a Commissioner for Oaths of the Nchia High Court is clearly shown on the depositions of DW1 and DW2. That there is a presumption that the depositions of DW1 and DW2 were duly sworn before a person authorized to administer Oaths under Section 111 of the Evidence Act, 2011. Learned Counsel submitted that the depositions having been shown to have been made before an officer of the lower Court, and in the absence of any evidence that the said officer was not authorized to administer Oaths, the evidence elicited from these defence witnesses could only lead to the inference that the said witnesses signed their depositions elsewhere and later presented themselves before Mrs. F.I.D. Samuel. That such depositions on Oath do not violate Section 112 of the Evidence Act, 2011. Relied on the case of S.P.D.C.N Ltd vs. Amadi (2010) 13 NWLR (pt. 1210) page 82, ratio 31 and 33 at pages 142, paragraphs C-F.

It is the further submission of learned Counsel that the facts of Buhari vs. INEC (2008) 4 NWLR (pt. 1078) page 546 relied upon by the learned trial Judge are clearly distinguishable from the factors of the instant case. That in that case, the questioned dispositions were sworn before a Notary Public who had been engaged as Counsel in the same case in which witness depositions were sworn before him. That the Court found that he had been engaged as Counsel by the party on whose behalf the questioned depositions were tendered, and that the depositions were sworn before the same Counsel in his capacity as a Notary Public.

Learned Counsel drew our attention to the provisions of Section 109 of the Evidence Act, 2011 to the effect that any affidavit sworn before any Judge, officer or other person duly authorized to take affidavit in Nigeria may be used in the Court in all cases where affidavits are admissible.

Further argued that under and by virtue of Section 113 of the Evidence Act, 2011 (supra) the Court may permit an affidavit to be used notwithstanding that it is defective in form. That there was no evidence led at the trial to rebut the presumption that DW1 and DW2 were duly sworn before an officer of the lower Court upon their depositions on Oath. Submitted that the learned trial Judge was wrong in placing reliance on the fact that DW1 and DW2 signed their depositions in Appellant’s Legal Department to expunge the said depositions.

It is also the submission of learned Appellant’s Counsel that no provision of the Evidence Act relating to the taking of affidavit was shown to have been violated in relation to the depositions of Appellant’s witnesses. That on the contrary, there is no evidence that the Appellant’s witnesses were duly sworn before an officer of the lower Court authorised to take Oaths. That when any judicial or official act is shown to have been done in the manner substantially regular, it is presumed that the formal requisites for its validity were complied with.

Appellant’s learned Counsel further submitted that the Court will not allow technicality to hinder the attainment of justice. Called in aid the case Ahmed vs. Minister of Internal Affairs (2002) 15 NWLR (pt. 790) 239 at page 265, paragraphs B-D. That Courts are set up to do substantial justice and to ensure that there is a semblance of the pursuit of it. That justice cannot be seen to have been done when a judgment is reached supposedly on the basis that no facts were provided by a party before the Courts because a wrong procedure was followed. That parties will walk away with the feeling that Court denied them fair hearing. That the interest of justice demand that parties should be afforded a reasonable opportunity, in appropriate circumstances, for their claims to be adequately investigated and properly determined upon their merits. That in the instant case, it would amount to turning justice upside down to refuse to consider evidence of Appellant’s witnesses mainly because of a technical error. Referred to and relied on Shanu vs. Afri Bank (Nig.) Plc. (2002) 17 NWLR (pt. 795) SC 185 at pages 228-229, paragraphs H-D. Urged us to resolve this issue in favour of the Appellant.

On issue No. 3, learned Appellant’s Counsel, posited that it is the law that an Expert is a person specially skilled in the field he is giving evidence. That formal learning in the subject is discounted once affirmative responses are returned in the following questions, viz:
(a) Is he peritus?
(b) Is he skilled?
(c) Has he adequate knowledge?

Referred to the cases of Okereke vs. Umahi (2016) 11 NWLR (pt. 1524) page 438, and Udom vs. Umana (No. 1) 12 NWLR (pt. 1526) SC 179 at page 241, paragraphs D-F. That in the instant case, the DW3 testified in his evidence in chief as shown in paragraphs B, C and E of his depositions on Oath copied at pages 376-377 of the record. That the report of DW3 and documents attached thereto were tendered and admitted in evidence as Exhibits A2(1), A2(2) and A2(3). That the said report contains detailed information which formed the basis of the findings and conclusions of the witness. That throughout the cross-examination of this witness, he was not confronted with questions as to his skill in ultrasonic testing to determine the newness or otherwise of dredging pipes. That he was neither confronted with questions as to the contents of his report in respect of the results of his inspection and analysis of the subject matter of this Suit being the 36 pipes supplied by the Respondent to the Appellant.

It is contended that in this case, the salient fact in issue which the trial Court had to decide was ‘whether the 36 dredging pipes supplied by the Respondent to the Appellant were brand new and thus met the specification of the contract made between the Appellant and the Respondent as contained in the Appellant’s LPO NO. PIL-12-01391 dated 29th March, 2012? Submitted that DW3 furnished the trial Court with all the necessary scientific criteria for the testing he carried out and also supplied the Court below with the reasons for his conclusions. That the evidence of DW3 was not shaken under cross-examination.

Learned Counsel further submitted that by virtue of Section 68 of the Evidence Act (supra), an expert witness is a person skilled in the area of specialization in which he is giving evidence. That unchallenged and uncontroverted evidence ought to be accepted by the Court as establishing the facts therein contained. That where evidence given by opposite party was not controverted by the opposing party who had the opportunity to do so, that it is always open to the Court siesed of the proceedings to act on the challenged evidence before it. Referred to the authority of Oguniyade vs. Oshunkeye (2007) 15 NWLR (pt. 1057) 218 at page 242, paragraphs A-B and page 246 paragraph E.

It is the law, learned Counsel argued that an Expert witness need not be professionally qualified. That it is not the requirement of the law that the special skill of an Expert must be acquired through formal education or professional training. That it is enough if from experience, the said expert has the skill he claims to have. That it is the quality of the evidence that the Court will evaluate in deciding to accept or reject the testimony of the Expert. That in order to assess and controvert an Expert witness, what should be considered are the nature of the analysis carried out, the requisite qualification and the expertise to conduct the analysis and whether the opinion conflicts or is inconsistent with common sense and logic.

Submitted that in the instant case, the Respondent’s Counsel did not cross-examine the Appellant’s witness on his experience. That it was not shown that his opinion was contrary to common sense and logic. Counsel called in aid the case of Arewa Textiles Plc. vs. Fine Textiles Ltd (2003) FWLR (pt. 162) 1985. That the witness (DW3) led sufficient and credible evidence of his special skill and experience in ultrasonic testing of dredging pipes. That the trial Court was not right when it held that the evidence and written report of DW3 were of no value. Referred to and relied on Ogoro v. Seven-Up Bottling Co. Plc. (2016) 13 NWLR pt. 1528) 1 at 27 paragraphs D-E. Learned Counsel urged this Court to resolve issue No. 3 in favour of the Appellant.

On issue No. 4, learned Counsel submitted that it is settled law that a person who is not a party to a contract cannot be bound by its terms, nor can he receive any benefit from it. That by the Doctrine of Privity of Contract, a contract confer or impose obligations arising under it on no other person except the parties to that contract. That only parties to a contract can sue or be sued on the contract and that a stranger to a contract cannot sue or be sued. Referred to Febson Fitness Centre vs. Cappa H. Ltd (2015) 6 NWLR (pt. 1455) page 263. ratio 4 at page 280, paras. B-C; Rebold Ind. Ltd vs. Magreola (2015) 8 NWLR (1461) page 210, ratio 2 at page 227, paras. A-G, 228-229, paras.H-E, 231, paras.C-D, 231-233, paras G-C, 234, paras. C-E, 235, paras. F-J; 236, para. D, 237 paras. F-G; and 240, paras. B-E.

In the instant case, learned Counsel argued, that the Respondent tendered Exhibit ‘B” as evidence of a loan agreement made between the Respondent and First Bank of Nigeria. That on the face of Exhibit B, it is a contract entered into between First Bank of Nigeria and the Respondent. That the learned trial Judge relied not on Exhibit ‘B’ but on Exhibit O to hold that the Appellant was aware of the said loan and should pay interests accruing on same. That the reasoning of the Court was that by Exhibit ‘O’, the Appellant supplied details of the Respondent requested by the bank. That the Appellant neither guaranteed the said loan nor undertook to bear any liability for interests accruing therefrom.

It is further argued that the Respondent claimed that the loan was taken for the purpose of supplying 80 pieces of brand new steel dredging pipes to the Appellant based on the LPO NO. PIL-12-0139, the said loan was granted to the Respondent after it had delivered the said pipes to the Appellant. That was no nexus between the supply of the said pipes by Respondent to the Appellant and the grant of the loan by First Bank to the Respondent. That the lower Court failed to consider this fact when it held the Appellant liable for payment of interest on the said loan, to which the Appellant is not a party. Relied on Osuji vs. Ekeocha (2009) 16 NWLR (pt. 1160) page 81 at 117, paras.C-E. Urged Court to resolve issue No. 4 in favour of the Appellant.

The petition of the Appellant under issue No. 5 is that both Exhibits “A” and “V” tendered by the Respondent and Appellant as their respective copy of the Local Purchase Order. That both Exhibit “A” and Exhibit “V” contain pages numbered 1 and 2. That the difference however, is that pages 1 and 2 of Exhibit “A” are separate sheets of paper with blank reverse pages while Exhibit “V” contains pages 1 and 2 on separate sheet of paper, but with general terms and conditions written on the reverse side of pages 1 and 2 of Exhibit “V”. That the content of both Exhibits “A” and “V” are the same. That both Exhibits contain a reference at bottom parts of pages 1 and 2 to “general terms and conditions to the Vendor available on reverse/all prices excl VAT”. That in Exhibit “A” tendered by the Respondent, the said terms and conditions are missing. While the said terms and conditions are contained in Exhibit “V”, on the reverse sides of pages 1 and 2 thereof.

Learned Counsel urged us to hold that Exhibit ‘V’ represents the contract entered into by the parties. That it is trite law that where words used in a document are clear and unambiguous, the Court must give the operative words in the document their simple, ordinary and actual grammatical meaning. That the Court must deal with the document according to the clear intention of the parties in the document itself. Referred to the case of Unity Bank Plc vs. Olatunji (2015) 5 NWLR (pt. 1452) page 203, ration 9 at pages 247-248, paragraphs A-D.

Appellant contended further that the Respondent relied on receipt of its dredging pipes into the Appellant’s warehouse by officers of the Appellant as constituting proof that Respondent was entitled to payment for the said dredging pipes. That the Appellant denied the claim and relied on clause H of Exhibit “V”. That the Appellant erred and led evidence through DW1 and DW2 that it rejected the 36 steel dredging pipes because they were not in conformity with the contract specifications. That the law is settled that parties are bound by the terms of their contract willingly entered into. Relied on the case of West African OffShore Ltd vs. Ariri (2015) 18 NWLR 177 at 202-203 paras. A-A.

Learned Counsel submitted that in view of clause H of Exhibit “V”, the Respondent was not entitled to the finding of the lower Court that the Respondent had a duty to go further to prove that its materials complied with the contract specifications. That the reliance by the lower Court on Exhibit ‘A” instead of Exhibit “V” which truly represents the contract between the parties invariably shut out the Appellant’s defence to the case and thus occasioned a miscarriage of justice to the Appellant as the lower Court held that the said dredging pipes would not have been received if they were not in conformity with the contract specifications.

Appellant’s Counsel again contended that the depositions of Appellant’s DW1 and DW2 which were expunged and the evidence of DW3 rejected by the learned trial Judge were to the effect that the Respondent did not supply brand new dredging pipes to the Appellant. That the Respondent relied on Exhibit ‘C’ which contained the opinion on a scientific fact in dispute and the maker was not called to give evidence. That outside Exhibit ‘C’ the Respondent only relied on the ipsi dixit of its Managing Director (CW1) in urging the lower Court to hold that the 36 pieces of dredging pipes supplied by the Respondent were brand new. That the trial Court did not attach due weight to the admission made by CW1 under cross-examination to the effect that the date of 2/11/2005 appears on the documents of the said material, showing that the said 36 steel pipes were in existence as at November, 2005. That CW1 again admitted by his letter, Exhibit ‘Z’ that the said pipes were corroded. That those admissions by the Respondent that the pipes supplied by him were not brand new.

Submitted that although the evaluation of relevant evidence before the lower Court and the ascription of probative value to such evidence are primary functions of the trial Court, that were the trial Court failed to properly evaluate evidence before it, an appellate Court can re-evaluate such evidence. That evaluation of documents is not within the exclusive preserve of the trial Court. Relied on Ogundalu vs. Macjob (2015) 8 NWLR (pt. 1460) 96 at pages 116-117, paragraphs G-B. That from the totality of evidence led at the trial, the Respondent was not entitled to the reliefs granted in its favour, as it failed to discharge the burden of proving on the balance of probability that he did supply brand new dredging pipes to the Appellant as stipulated in the contract made by the parties.

Urged us to resolve issue No. 5 in favour of the Appellant and allow this Appeal.

RESPONDENT’S BRIEF
The Respondent’s Brief of Argument is dated 12th day of March, 2010 and filed on the same date, adopted the five (5) issues framed by the Appellant’s Counsel for the determination of this Appeal. Learned Respondent’s Counsel however, argued issues No. 1 and 5 together. The two issues reads:
(1) Whether the learned trial Judge was right in relying on Exhibit C and the fact that Appellant’s Officers received 36 steel dredging pipes supplied by the Respondent, to hold that the said dredging pipes were brand new as required by the Contract made between the Appellant and the Respondent and that Appellant was in breach of contract in failing to pay for the said dredging pipes, when the maker of Exhibit C was not called to give evidence of the expert opinion contained therein, and the Appellant never issued any Receiving and Inspection Report to the Respondent to show acceptance of the said dredging pipes as stipulated by the Contract?
(5) Whether the learned trial Judge’s reliance on Exhibit A tendered by the Respondent as evidence of the Contract between the parties instead of Exhibit ‘V’ tendered by the Appellant, and the Reliefs granted in favour of the Respondent can be supported, having regards to the totality of evidence led at the trial?

It is the position of the Respondent that the learned trial Judge was right in relying on Exhibit “A” tendered by the Respondent instead of Exhibit “V” tendered by the Appellant. That it is the evidence of the Respondent that on Exhibit “A” which was issued to CW1 by the Appellant, no terms and conditions were contained. That the LPO issued to CW1 had two pages without terms and conditions (Exhibit ‘A”) while a counterpart copy of the LPO tendered by the Appellant has three pages and contains terms and conditions. That it is also the evidence of CW1 that Exhibit ‘V’ was never issued to him and hence, executed the contract without any prior knowledge of any terms and conditions.

Respondent’s learned Counsel contended that this piece of evidence remains uncontroverted by the Appellant. That the Appellant failed to link the Respondent with Exhibit ‘V’ throughout its evidence. That the Appellant also did not deny the fact that it issued Exhibit ‘A’ to the Respondent. Submitted that the Appellant cannot be allowed to shift the goal post or change the rules in the middle of the game. That by failing to challenge the authenticity of Exhibit ‘A’, the Appellant is estopped by law to deny its existence in place of Exhibit ‘V’. Learned Counsel in aid Section 169 of the Evidence Act, 2011;Mabamije vs. Otto (2016) ALL FWLR (pt. 828) p. 897, paras. A-B; Abe vs. Skye Bank Plc (2016) ALL FWLR (pt. 819) p. 1104; Georgewill vs. Okwara (2016) ALL FWLR (pt. 837) p. 751, paras.D-F and A-G Nasarawa vs. A-G, Plateau State (2012) ALL FWLR (pt. 630) p. 1282, para. A.

The Respondent’s Counsel further argued that emergency of Exhibit ‘A’ and Exhibit ‘V’ repeated itself in the Quality Control Report. That the Respondent tendered in evidence the Quality Control Report signed by the Quality Control Manager himself, Mr. Taiwo Adeniyi. While on the other hand, the purported Quality Control Report signed on behalf of Engr. Taiwo Adeniyi on the same day is a direct product of Exhibit ‘V’. That while the Quality Control (QC) Report signed by Engr. Taiwo Adeniyi himself shows that the pipes met the requirement as provided for in the contract, the purported QC Report signed on behalf of Engr. Taiwo Adeniyi reprobates. Submitted that the evidential burden of proof shifted to the Appellant and failure to call Engr. Taiwo Adeniyi is fatal to the Appellant’s case.

It is also submitted that the Appellant having issued Exhibit ‘A’ to the Respondent without denying it, are restrained by law and good conscience from departing unjustly from the original LPO issued to the Respondent which resulted in the QC Report signed by the authorized officer of the Appellant after due inspection. Counsel urged this Court to hold that Exhibit ‘V’ and the purported QC Report signed on behalf of Engr. Taiwo Adeniyi are documents tainted with fraud, forgery, and underhandedness to the detriment of the Respondent. That these issues should be resolved in favour of the Respondent.

ISSUE NO. 2
Whether the learned trial Judge was right in holding that the Written Statements on Oath of DW1 and DW2 were not sworn before an officer of the Rivers State High Court authorised to take Oaths, and in consequently expunging the said Depositions from Records in this Suit?

Arguing this issue, learned Respondent’s Counsel opined that the written depositions on oath stand as the main evidence-in-chief of the witness. That the provision was introduced to accelerate the hearing of cases by doing away with lengthy oral evidence-in-chief with its attendant delay occasioned by long hand recording of evidence which is often a repetition of pleadings and the unavailability of a witness to continue his evidence on adjourned dates. That with the written depositions having been made on oath before a commissioner for Oaths, once the witness has adopted same before the Court, identified documents admitted in consent and tendered any disputed documents, the opposing Counsel may proceed with cross-examination, thereby saving valuable time and costs. That it is therefore, imperative that for a written deposition to be accepted as proof of the fact it contains, it must be made on oath.

Learned Counsel referred to page 429 of the record wherein the evidence of DW1 and DW2 are copied and stated that the signature and stamp are of the Commissioner for Oaths. Argued that in the case of Chidubem vs. Ekenna (2009) ALL FWLR (pt. 455) 1962, the witness statement on oath of four witnesses were signed before the Commissioner of Oaths who is duly authorised by Section 13 of the Oaths Act to administer oaths. That the Court rightly discountenanced them and expunged same. Urged this Honourable Court to hold that the trial Court was right in expunging the statements on oath of the witnesses.

ISSUE NO. 3
Whether the learned trial Judge was right in holding that DW3 did not qualify as an Expert Witness, and in rejecting his evidence on that ground?

The Respondent contended that the learned trial Judge was right in holding that DW3 does not qualify as an expert witness and rejected his evidence. That the lower Court came to this conclusion from the direct evidence given by the witness himself. Referred to the case of Okereke vs. Umahi (2016) ALL FWLR (pt. 833) 1930 paras. D-H. That in his evidence, DW3 claimed that he acquired his skill having obtained his qualification from a body he simply identified as ASENT and had a practical working experience which started from 2007. That under cross-examination, the witness could not remember the name of the body that certified him to engage in such skill. That this, undoubtedly raised doubts in the mind of the Court as to the foundation of the skill he claimed to possess. That no document or certificate issued to him by the so-called ASENT was pleaded, frontloaded or even tendered in evidence. Referred to the cases of Sowemimo vs. State (2004) ALL FWLR (pt. 208) 968 paras. B-C; Tuah vs. Michael (2011) ALL FWLR (pt. 590) 1376, paras. H-D.

It is further contended on behalf of the Respondent that DW3 claimed to have practical working experience since 2007 and in his entire evidence and pleadings, there is nothing that shows that DW3 has handled any work related to that which he came to Court to testify. That it is important to note that the type of evidence DW3 came to Court to testify on, is scientific in nature which is verifiable with empirical formulas. That in the entire gamut of the evidence of DW3, the tools employed at process of testing how they were used, how the results came about, how he came to a particular conclusion and the reason for arriving at such opinion were left unattended. That, the experience and expertise of the witness is not reliable. Referred to the case of Emmanuel vs. Umana (2016) ALL FWLR (pt. 856) 288, paras. B-G Learned Respondent’s Counsel took the argument further by contending that in the face of other relevant evidence before the Court in this case, particularly the Waybill which show that the 36 piles were received by Engr. Taiwo Adeniyi of the Appellant’s Company and the Quality Control Inspection Report signed and remarked by the same Engr. Taiwo Adeniyi himself, the evidence of DW3 as an expert witness is unnecessary. That even if it was necessary, it only forms part of the entire evidence in this case and the Court is not bound by the opinion of DW3. Cited and relied on Aba vs. Owei (2015) ALL FWLR (pt. 780) 1372, paras. B-D, Fayemi vs. Oni (2009) ALL FWLR (pt. 472) 1122; Ajani vs. Comptroller of Customs (1952) 14 WACA 34, Tuah vs. Michael (supra) p. 1376 paras. D-F and Attorney-General of the Federation &Ors vs. Abubakar & Ors (2007) ALL FWLR (pt. 389) 1264.

Urged this Court to reject the arguments of the Appellant and resolve this issue in favour of the Respondent.

ISSUE NO. 4
Whether the trial Judge was not wrong in finding the Appellant liable for accrued interests on a loan said to have been obtained by the Respondent from First Bank of Nigeria Plc. to supply steel dredging pipes to the Appellant when the Appellant was not a party to the loan transaction and there was no evidence that the loan was utilized by the Respondent to purchase and supply steel dredging pipes to the Appellant?

On this issue, Respondent’s learned Counsel posited that the learned trial Judge was right in finding the Appellant liable for the accrued interest on the loan. That the claim before the Court is that of breach of contract and the damages that has accrued as a result of the breach. Referred to the evidence of CW1 copied at page 429E of the record of appeal. That it is clear and uncontroverted fact that not only the loan was sought by the Respondent for the purpose of the contract, that the loan obtained by the Respondent was clearly in contemplation of the contract with the Appellant. That this position is further buttressed by the fact that the Bank visited the Appellant to verify the purpose for which, the loan was been sought. That a cursory examination of Exhibit ‘O’ shows the stamp of the Appellant which has not been challenged or denied.

Counsel contended further that the Appellant had both actual and constructive notice of the credit facility sought by the Respondent to execute the contract. That if the Appellant had not breached the contract and the Respondent has been paid, the loan would have been serviced. That the Appellant’s submissions that there is no nexus between the loan obtained and the pipes supplied is both erroneous and misconceived. Referred to a letter by First Bank dated November, 12th 2012 copied at page 37 of the record. That the case of the Respondent is that the accrued interest granted by the trial Court is a loss which flowed naturally from the breach. Relied on Zenon Petroleum & Gas Limited vs. Idrisiyya (Nig) Ltd (2006) ALL FWLR (pt. 312) p. 2144, paras. G-H; Chevron (Nig) Ltd vs. Titan Energy Ltd (2014) ALL FWLR (pt. 758).

It is the submission of the Respondent’s Counsel that the Appellant’s contention that the loan was made in contemplation of the contract is of no moment. That the Appellant misguided itself to assume that the Respondent had brand new pipes in their possession to supply to it as the Respondent never made any such representation. That the Respondent as an innocent party in the contract, fulfilled its part and has sought for damages to mitigate the losses incurred as a result of the breach even from a third party, namely the accrued interest from loan facility. Called in aid the authorities of G. F. K. Investment Nigeria Limited vs. NITEL Plc (2006) ALL FWLR (pt. 299) 1415 paras. E-G; Adim vs. Nigeria Bottling Co. Ltd (2010) ALL FWLR (pt. 527) 708 paras. D-G; A.M.C Nig Ltd vs. Volkswagen of (Nig) Ltd (2011) ALL FELR (pt. 588) 951, paras. E-H.

Urged this Honourable Court to resolve this issue in favour of the Respondent, affirm the judgment of the Court below and dismiss this appeal with punitive costs.

RESOLUTION OF ISSUES
Both Counsel in this appeal are at one in the issues proposed for determination in this appeal.

The five issues are:
(1) Whether the learned trial Judge was right in relying on Exhibit C and the fact that Appellant’s Officers received 36 steel dredging pipes supplied by the Respondent, to hold that the said dredging pipes were brand new as required by the Contract made between the Appellant and the Respondent and that Appellant was in breach of contract in failing to pay for the said dredging pipes, when the maker of Exhibit C was not called to give evidence of the expert opinion contained therein, and the Appellant never issued any Receiving and Inspection Report to the Respondent to show acceptance of the said dredging pipes as stipulated by the Contract? (Distilled from Grounds 1 and 5 of the Grounds of Appeal).
(2) Whether the learned trial Judge was right in holding that the Written Statements on Oath of DW1 and DW2 were not sworn before an officer of the Rivers State High Court authorised to take Oaths, and in consequently expunging the said Depositions from Records in this Suit? (Distilled from Ground 2 of the Grounds of Appeal.
(3) Whether the learned trial Judge was right in holding that DW3 did not qualify as an Expert Witness, and in rejecting his evidence on that ground? (Distilled from Ground 3 of the grounds of Appeal).
(4) Whether the trial Judge was not wrong in finding the Appellant liable for accrued interests on a loan said to have been obtained by the Respondent from First Bank of Nigeria Plc. to supply steel dredging pipes to the Appellant when the Appellant was not a party to the loan transaction and there was no evidence that the loan was utilized by the Respondent to purchase and supply steel dredging pipes to the Appellant? (Distilled from Ground 4 of the Grounds of Appeal).
(5) Whether the learned trial Judge’s reliance on Exhibit A tendered by the Respondent as evidence of the Contract between the parties instead of Exhibit V tendered by the Appellant, and the Reliefs granted in favour of the Respondent can be supported, having regards to the totality of evidence led at the trial? (Distilled from Grounds 6 and 7 of the Grounds of Appeal).

I have deeply considered the submissions of Counsel on each of the 5 issues formulated for determination. I find them apt and apposite for the just determination of the issues. I therefore adopt them.

ISSUE 1
Whether the learned trial Judge was right in relying on Exhibit C and the fact that Appellant’s Officers received 36 steel dredging pipes supplied by the Respondent, to hold that the said dredging pipes were brand new as required by the Contract made between the Appellant and the Respondent and that Appellant was in breach of contract in failing to pay for the said dredging pipes, when the maker of Exhibit C was not called to give evidence of the expert opinion contained therein, and the Appellant never issued any Receiving and Inspection Report to the Respondent to show acceptance of the said dredging pipes as stipulated by the Contract?

I have deeply considered this issue. In resolving this issue recourse has to be made to the document Exhibit C and the relevance.

The genesis of the contract in question is captured in Exhibit V. Exhibit V is the Local Purchase Order. It further specifies its terms and conditions.

By Exhibit V, the expected day of delivery of the steel pipes subject matter of the contract was 30/4/2012.

By Terms and Conditions B of Exhibit V, all supplies shall be made within the time stipulated in the L.P.O. but if any delay is envisaged, PRODECO, the 1st Defendant/Appellant must be notified in writing. It may then extend the time that supplies must be made in writing.

Term B of the LPO states that all deliveries must be at PRODECO Store/Warehouse. Delivery shall be completed after the appropriate officer must have issued valued Receiving and Inspection Report (R.I.R).

Exhibit C was the QC Inspection Material Receiving dated 21/9/2012. Exhibit C was signed by QC Engineer, Taiwo Adeniyi.

I have combed through the Record of Appeal and I have not been able to see where QC Engineer Taiwo Adeniyi was disowned by the 1st Defendant as the appropriate officer to sign Exhibit C.

A further examination of Exhibit C shows the INSPECTION REMARKS which reads thus:
“THEE STEEL PIPES SATISFIED THE ABOVE MENTIONED REQUIREMENTS DEMENSIONALLY AND PHYSICALLY OK. 36 NOS.SEEN ON SITE AS AT 21/8/2012.”

If Exhibit C emanated from the 1st Defendant’s company and QC Engineer Taiwo Adeniyi was a staff of the 1st Defendant who inspected and certified that the pipes delivered were DEMENSIONALLY AND PHYSICALLY OKAY, then it was for the 1st Defendant to debunk the report of its Engineer by calling him to either disclaim the report or discredit the report in any other way. This, the 1st Defendant failed to do. It is in my respectful view out of place to expect the Claimant to call the staff of the 1st Defendant in evidence against it to confirm a document which the 1st Defendant did not disclaim. It is rather very strange that the 1st Defendant failed to call the QC Engineer Taiwo Adeniyi to discredit his own inspection report. It creates an impression that the 1st Defendant hid or prevented Engineer Taiwo Adeniyi from giving evidence because he would have confirmed the accuracy and authenticity of the Inspection Report in Exhibit C. This is the presumption of law which has to be invoked against the Appellant. See JALLCO LTD & ANOR VS. OWONIBOYS TECHNICAL SERVICES LTD (1995) 4 NWLR (PART 391) P. 534. MOZIE & ORS VS. MBAMALU & ORS (2006) 15 NWLR (part 1003) 466. See also Section 167(d) of the Evidence Act, 2011.

I therefore see no reason why the learned trial Judge would not rely on such a vital document which the 1st Defendant itself failed to debunk and discredit. If there was need to call the maker of Exhibit C the 1st Defendant should have done so. At all material times the maker of Exhibit C was an employee of the 1st Defendant.

It is puzzling that the Appellant is contending that it never issued any Receiving and Inspection Report. What then is Exhibit C?

I resolve this issue in the light of the above in favour of the Respondent.

ISSUE 2
Whether the learned trial Judge was right in holding that the Written Statements on Oath of DW1 and DW2 were not sworn before an officer of the Rivers State High Court authorized to take Oaths, and in consequently expunging the said Depositions from Records in this Suit?

The evidence of DW1 and DW2 on where they signed to their respective witness statement on oath is very clear.
The DW1 under cross-examination on page 429L of the Record of Appeal stated thus in answer to a question:
“Question: Where did you stay to sign this document?
DW1: It was in my legal department of my officer that that is signed it.”
The DW2 on the other hand on page 429M of the Record of Appeal while responding to a question under cross-examination said:
“Witness is shown his deposition on oath which he identified as he signed it.
DW2: I signed this document in Prodeco office.”

It goes without saying that the above depositions could not have been sworn to before an officer of the High Court as this would have taken place in his office in the High Court Registry. The Evidence Act, 2011 forbids the use of any affidavit not sworn to before any duly authorised person. See Sections 109 and 112 of THE EVIDENCE ACT, 2011. See UNION BANK VS. ESTATE OF LATE CLEMENT OGEH (2018) LPELR – 46701 (CA); CHIDUBEM VS. EKENNA (2009) ALL FWLR (pt. 455) page 1692.

The learned trial Judge listened to both parties on this point and rightly rejected and expunged the depositions of DW1 and DW2.

The submissions of learned Counsel for the Appellant on this point therefore hold no water. I resolve this issue in the circumstance in favour of the Respondent.

ISSUE 3
Whether the learned trial Judge was Right in holding that DW3 did not qualify as an Expert Witness, and in rejecting his evidence on that ground?

The DW3, Godwin Eden Effiong described himself as a NON-DESTRUCTIVE TESTING INSPECTOR and an Engineer by profession.

Under cross-examination on page 429N of the Record of Appeal he said:
“I am an Engineer by profession. I am not a member of Council of Registered Engineers of Nigeria (COREN). I don’t know the meaning of COREN. I hold a post graduate Diploma in Business Administration and my first degree was in Soil Science and I have a B. A. There I don’t belong to any professional body but I was certified by a body called ASENT which is American Society.”
But under re-examination the witness said “I still cannot remember the meaning of ASENT.”

The learned trial Judge in his judgment on this witness held on page 429Z of the record thus:
“I hold that he is not sufficiently skilled to give an opinion as an expert, as he purports to be, I hereby attach no probative value to “Exhibit A21” tendered by DW3 in evidence.”

This finding of the learned trial Judge is unassailable. The words expert witness are not magical toga that can be unquestionably conferred on a witness without any eye brow being raised on whether or not it has been rightly conferred on him.

I resolve the issue in favour of the Respondent.

ISSUE 4
Whether the trial Judge was not wrong in finding the Appellant liable for accrued interests on a loan said to have been obtained by the Respondent from First Bank of Nigeria Plc. to supply steel dredging pipes to the Appellant when the Appellant was not a party to the loan transaction and there was no evidence that the loan was utilized by the Respondent to purchase and supply steel dredging pipes to the Appellant?

In award of damages and finding the Appellant liable for accruable interests on a loan obtained by the Respondent from First Bank Nigeria Plc., did the learned trial Judge act on correct principles guiding assessment of damages for breach of contract? The answer in my respectful opinion is YES.
The Apex Court in ARISONS TRADING & ENGINEERING CO LTD VS. MILITARY GOVERNOR OF OGUN STATE & ORS (2009) 15 NWLR (pt. 1163) p. 26 had course to explain the principles of assessment of damages for breach of contract thus:
“It is now firmly settled that in a claim for damages for breach of contract, the Court is concerned only with damages which are natural and probable consequences of the breach or damages within the contemplation of the parties at the time of the contract. See the case of MOBIL OIL NIG LTD VS. AKINFOSILE (1969) 1 NMLR 227. See also AHMED & ORS VS. C.B.N. (2013) 2 NWLR part 1339 p.524.”
Was the loan obtained from the First Bank of Nigeria Plc within the contemplation of the parties? A look at the Exhibits O and I shows the easy answer to the question. Exhibit O is the SUPPLIERS BANK DETAILS endorsed by the Appellant on 2/5/2012. Exhibit I is the DEMAND LETTER dated 12/11/2012.

In Exhibit I, the Appellant was urged to pay down on the outstanding indebtedness to Respondent by First Bank of Nigeria Plc. Clearly the loan obtained by the Respondent was within the contemplation of the parties. The learned trial Judge was therefore right to have held the Appellant liable for the accrued interests on loan. This is a natural and probable consequence of the breach. I resolve this issue in favour of the Respondent.

ISSUE 5
Whether the learned trial Judge’s reliance on Exhibit A tendered by the Respondent as evidence of the Contract between the parties instead of Exhibit V tendered by the Appellant, and the Reliefs granted in favour of the Respondent can be supported, having regards to the totality of evidence led at the trial?

In view of what had been earlier stated in the Judgment, I resolve this issue in favour of the Respondent. A perusal of Exhibit Y1, Exhibit C, Exhibit E and Exhibit K show clearly that Appellant was not pursuing an honest case.

Exhibit V is the Local Purchase Order between the parties. Exhibit C is the QC Inspection Report signed by TAIWO ADENIYI, QC Engineer. Exhibit Y1 is a mere complete Local Purchase Order.

The Appellant had rested his argument on TERMS A and B of EXHIBIT Y1:
A) SUPPLY:
All supplies shall be made within the time stipulated in the LPO and Prodeco shall be informed in writing of any envisaged delays, whereupon the company may cancel the LPO forthwith, or in its absolute discretion, extend the time that supplies must be made in writing.
B) DELIVERY:
All materials/spare parts are to be delivered at Prodeco store/warehouse. Delivery to Prodeco shall be completed after the appropriate Receiving Officer must issue valid Receiving and Inspection Report (RIR).

The Appellant’s contention is that the delivery of the pipes ordered was delayed and therefore it invoked the provision of TERM A to revoke the contract. With due respect, the Appellant’s contention failed to take into consideration the unreplied letter of the Respondent, Exhibit K, giving notice of date of delivery.

The Appellant also failed to consider the fact that the pipes were eventually supplied, tested and accepted. The provision of the TERMS AND CONDITIONS of Exhibit Y1 did not cover this situation.

It is also significant to state that Exhibit C tendered by the Respondents and signed by TAIWO ADENIYI is on the face of it more authentic than Exhibit E signed by an unknown person for TAIWO ADENIYI. It seems to me that Exhibit E was procured in order to provide a reason to terminate the contract between the parties. It is in my respectful view a RUSE.

Having failed to reply Exhibit K and having accepted the delivery of the pipes after testing, TERMS AND CONDITIONS in Exhibit Y1 can no longer be invoked.

The decision of learned trial Judge is unimpeachable.

I resolve this issue in favour of the Respondent.

In conclusion, this appeal lacks merit. It is hereby dismissed. The decision of the Rivers State High Court in Suit No. NHC/131/2012 delivered on 30/9/2015 is hereby affirmed.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: Having read before now the draft of the judgment just delivered by my learned brother, Awotoye, JCA, I can not but concur with the reasoning reached therein, to the conclusive effect that the present appeal is grossly devoid of merits.

Hence, the appeal is hereby accordingly dismissed by me.

ISAIAH OLUFEMI AKEJU, J.C.A.: I read the Judgment of my learned brother, TUNDE OYEBANJI AWOTOYE, JCA before it was delivered. I agree with the reasoning and conclusion of my learned brother. The appeal lacks merit and I dismiss it. I abide by the consequential order.

Appearances:

A. ALALI, ESQ, with him, G. S. EKPEDE For Appellant(s)

I. GODFREY, ESQ, with him, C. AHAM-OTUKA, ESQ, F. N. IGNATUS-IHESIABA, ESQ. and N. I. OGOKO For Respondent(s)