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ASHAKA CEMENT PLC v. ASHARATULMUBASHSHURUN INVESTMENT LTD
CITATION: (2016) LPELR-40196(CA)
In the Court of AppealIn the Kaduna Judicial Division
Holden at Kaduna
ON FRIDAY, 29TH JANUARY, 2016Suit No: CA/K/46/2014
Before Their Lordships:
UWANI MUSA ABBA-AJI Justice, Court of AppealHABEEB ADEWALE OLUMUYIWA ABIRU Justice, Court of AppealAMINA AUDI WAMBAI Justice, Court of Appeal
BetweenASHAKA CEMENT PLC - Appellant(s)
AndASHARATUL MUBASHSHURUN INVESTMENT LIMITED - Respondent(s)
RATIO DECIDENDI1 EVIDENCE - RE-CALLING OF WITNESSES: Whether Court can re-call a witness
"It is not in contest that the grant or refusal of an application by a party seekingto recall a witness and to reopen a case to lead additional evidence is entirely atthe discretion of the trial Judge - Ogbodo v. Odogha (1967) NMLR 400, Willoughbyv. IMB Ltd (1987) 1 NWLR (Pt.48) 105, Nebo v. Federal Capital DevelopmentAuthority (1998) 1 NWLR (Pt.574) Orisakwe & Sons Ltd v. Afribank Plc (2012)LPELR-CA/J/11/2005, Iyawe v. Mene (2014) LPELR-CA/B/374/2012."Per ABIRU,J.C.A. (P. 32, Paras. B-D) - read in context
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2 EVIDENCE - ADMISSIBILITY OF EVIDENCE: Position of the law on admissibilityof statement or document made during negotiation to settle dispute"The position of the law on the admissibility of a statement made or documentwritten in the course of negotiation to settle a dispute has since been resolved byour Courts. In Ashibuogwu v. Attoney General Bendel State (1988) 1 SC 248,Nnaemeka-Agu, JSC put the law thus:"A statement made in the course of a negotiation of the compensation or theoffer of such a compensation would, in my view, be analogous to a statementmade "without prejudice" during a negotiation. The law has always taken theview that parties should speak freely in attempting a settlement of their disputes.That freedom of discussion will be seriously prejudiced if any offer or admissionmade in the process of the negotiation could be given in evidence and be used tosupport a party's case in Court afterwards, should the negotiation break down.Where such negotiations are made by written communication they are usuallymarked "without prejudice" and are inadmissible against the parties in that suit.But it is recognized that in some circumstances it is not essential that the words"without prejudice" should have been used: it may be implied that negotiationswere conducted on this understanding. Hence in Mole v. Mole ..., oralcommunications to a conciliator by a party to a matrimonial dispute was treatedas having been made without prejudice. See also Pool v. Pool ...; Henley v. Henley... Although these two cases deal with privilege attaching to statements madeduring negotiations as between a husband and his wife during a dispute, theprinciple is rather broadly - based. The learned authors of Phipson On Evidence(11th Ed) put it thus . . . 'Offers of compromise made expressly or impliedly'without prejudice" cannot be given in evidence against a party as admissions;the law on grounds of public policy, protects negotiation bona fide entered intofor the settlement of disputes.' The privilege is, however that of the parties."?In other words, an offer or admission made in a written document in the courseof negotiation between parties to resolve a dispute is inadmissible against theparty that made it in a subsequent litigation on the subject matter of the dispute,whether or not that document was marked "without prejudice". This statement oflaw was reiterated by the Supreme Court in Fawehinmi v. Nigeria Bar Association(No. 2) (1989) 2 NWLR (Pt.105) 558 and by this Court in Akanbi v. Alatede (Nig)Ltd (2000) 1 NWLR (Pt 639) 125, Kolo v. First Bank of Nigeria Plc (2003) 3 NWLR(Pt.806) 216, Ibiyeye v. Gold (2011) LPELR-CA/L/M/95/2010 and Acmel Nigeria Ltdv. First Bank of Nigeria Plc (2014) 6 NWLR (Pt.1402) 158. This principle was givena partial statutory imprimatur in Section 196 of the Evidence Act which reads "astatement in any document marked "without prejudice" made in the course ofnegotiation for a settlement of a dispute out of Court, shall not be given inevidence in any civil proceeding in proof of the matters stated in it."Per ABIRU,J.C.A. (Pp. 21-23, Paras. B-E) - read in context
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3 EVIDENCE - ADMISSIBILITY OF DOCUMENTARY EVIDENCE: Position of lawwhere a party fails to object to admissibility of document at pre-trial stage"It is the view of this Court that though it is desirable that a party should indicateat the pretrial conference of a matter if it is going to object to the admissibility ofany document that the other party has listed as one to be relied on at trial, thefailure to so indicate cannot, should not, prevent the party from raising anobjection to admissibility at trial. This is because that proper time for a party toobject to the admissibility of a document is at the time it is tendered in evidence -Lawson-Jack v. Shell Petroleum Development Co (Nig) Ltd (2002) 13 NWLR(Pt.783) 180, Fatubi v. Olanloye (2004) 12 NWLR (Pt.887) 229. The party who wasmisled by the failure of the other party to indicate its objection at pretrialconference can be compensated in costs, but such failure to indicate should notbe a ground for admitting a document that the Evidence Act states isinadmissible in law. The Rules of Court cannot override a substantivelegislation."Per ABIRU, J.C.A. (P. 24, Paras. A-E) - read in context
4 COURT - DISCRETION OF COURT: How discretion of Court must be exercised inan application"It is trite that when a Court is called upon to exercise its discretion in favour ofan application, it must ensure that it does not act arbitrarily but judicially andjudiciously based on sound principle of law and by giving weight to relevantconsiderations - First Fuels Ltd v. NNPC (2007) 2 NWLR (Pt 1018) 276."Per ABIRU,J.C.A. (P. 32, Paras. D-F) - read in context
5 COURT - DISCRETION OF COURT: What amounts to wrong exercise ofdiscretion of Court"?Thus, for party to succeed in32 showing that a trial Judge exercised hisdiscretion wrongly he has the onus to justify the fact that the discretion was notexercised judicially, i.e. that the discretion was exercised in an arbitrary mannerand without due regard to all relevant considerations of necessary factors or onreliance up on wrong principles - National Bank of Nigeria Ltd v. Guthrie (Nig) Ltd(1993) 3 NWLR (Pt 284) 643 and Statoil (Nig) Ltd v. Star Deep Water PetroleumLtd (2015) 16 NWLR (Pt.1485) 361."Per ABIRU, J.C.A. (Pp. 32-33, Paras. F-C) - readin context
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6 COURT - DISCRETION OF COURT: Guidelines in exercise of discretion to re-calla witness to give additional evidence"The exercise of the discretion to grant an application to recall a witness in civilmatters and to lead additional evidence is not governed by any statutoryprovision and it is largely a matter of practice and it is predicated on the peculiarfacts and given circumstances of the particular case and coupled with itsattendant exigencies. Over the years, the Courts have developed guidelines to beapplied by trial Courts in the exercise of discretion to recall a witness to giveadditional evidence. In Ogbodu v. Odogha (1967) NMLR 400, the Supreme Courtstated that "undoubtedly the discretion to recall a witness by a Judge is one whichshould be exercised with great care, regard being had to the interest of justiceand the desirability of remaining an impartial arbiter between the parties." Thus,great care is the first constraint to the exercise of the discretion. Secondly, inWilloughby v. International Merchant Bank Ltd supra, Obaseki, JSC noted theexercise of the discretion is limited to grant of leave to call fresh evidence andthe learned Justice proceeded to state thus: "what is fresh evidence? I think this isevidence that was not available previously which is designed to be a reply to theevidence given by the other side, on points material to the determination of theissue or any of them. It could not, in my view, be evidence which ought to havebeen led to establish the facts pleaded and meet the issues raised on thepleadings. If it were otherwise, the purpose of pleadings would be defeated."Where the application is made to call evidence which was available to a partywhen the witness testified and it is simply to fortify or strengthen the case of theparty, the discretion will not be exercised in favour of the application - Bassey v.Ekanem (2001) 1 NWLR (Pt.694) 376. Thirdly, also in Willoughby v. InternationalMerchant Bank Ltd supra, Oputa, JSC stated that for the trial Court to exercise thediscretion, the party applying to recall the witness must supply sufficientmaterials relating to why he wants the witness recalled and what he intends toput to the witness and it is on these facts that the trial Judge will decide whetheror not the justice of the case obliges him to exercise his discretion one way or theother. Where this is not done, the trial Judge will be handicapped in exercising itsdiscretion in favour of the application - Musa v. Dalwa (2010) LPELR-CA/J/242/2001."Per ABIRU, J.C.A. (Pp. 33-35, Paras. C-C) - read in context
7 APPEAL - INTERFERENCE WITH EXERCISE OF DISCRETION: Circumstancesunder which an appellate Court will interfere with exercise of discretion of lowerCourt"It is settled law that an appellate Court will rarely interfere with the exercise ofdiscretion by a Lower Court and will only do so where the exercise is based onextraneous issues or where the exercise of such discretion was not bona fide -Integration (Nig) Ltd v. Zumafon (Nig) Ltd (2014) 4 NWLR (Pt.1398) 479."PerABIRU, J.C.A. (P. 37, Paras. A-C) - read in context
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8 CONTRACT - WRITTEN CONTRACT: Effect of a written contract or agreement;Whether Court can re-write it"It is settled law that parties are bound by the contract they voluntarily enter intoand cannot act outside the terms and conditions contained in the contract andneither of the parties to a contract can alter or read into a written agreement aterm which is not embodied in it - African International Bank Ltd v. IntegratedDimensional System Ltd (2012) 17 NWLR (Pt.1328) 1, Lagos State Government v.Toluwase (2013) 1 NWLR (Pt.1336) 555. A Court too must treat as sacrosanct theterms of an agreement freely entered into by the parties as parties to a contractenjoy their freedom to contract on their own terms so long as same is lawful andif any question should arise with regard to the contract, the terms in anydocument which constitute the contract are the invariable guide to itsinterpretation. It is not the business of the Court to rewrite a contract for theparties and it should thus not add to or subtract from or import any provision intothe contract - Omega Bank (Nig) Plc v. O.B.C. Ltd (2005) 8 NWLR (Pt.928) 547, BFIGroup Corporation v. Bureau of Public Enterprises (2012) 18 NWLR (Pt.1332) 209,Daspan v. Mangu Local Government Council (2013) 2 NWLR (Pt.1338) 203, AfrilecLtd v. Lee (2013) 6 NWLR (Pt.1349) 1."Per ABIRU, J.C.A. (Pp. 53-54, Paras. A-A) -read in context
9 INTERPRETATION OF DOCUMENT - RULE OF INTERPRETATION OFDOCUMENT: General rule of interpretation of document"Now, it is settled that in interpreting a document, the document must be read asa whole, and not parts in isolation, and that the different parts of the documentmust be interpreted in the light of the whole document and an effort must bemade to achieve harmony amongst its different parts - Unilife Development CoLtd v. Adeshigbin (2001) 2 SCNJ 116, Mbani v. Bosi (2006) 11 NWLR (Pt.991) 400,Adetoun Oladefi Nig. Ltd v. Nigerian Breweries Plc (2007) 1 SCNJ 375, Agbareh v.Mimra (2008) 2 NWLR (Pt.1071) 378, Nigerian Army Vs Aminu-Kano (2010) 5NWLR (Pt.1188) 429. This principle also applies where the document is part of aseries of documents on the same transaction."Per ABIRU, J.C.A. (P. 58, Paras. A-D)- read in context
10 EVIDENCE - PRESUMPTION IN RECITALS: Meaning of recital; Position of lawwhere it contains statement of existence of facts"A recital is defined as a preliminary statement in a contract or deed explainingthe reasons for entering into it, or the background of the transaction, or showingthe existence of particular facts - Suu v. Jobak Nigeria Ltd (2012) LPELR-CA/IL/76/2010. It is usually preceded by the word "whereas". It is settled thatwhere a recital contains a statement of the existence of a fact, it constitutes anestoppel and the party or parties who made the statement in the recital are notallowed to deny subsequently the existence of that fact - Oyefeso v. UniversityCollege Hospital Board of Management (1930) NCLR 94 at 103, Ejigini v. Ezenwa(2003) 16 NWLR (Pt.846) 420."Per ABIRU, J.C.A. (Pp. 59-60, Paras. E-C) - read incontext
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11 CONTRACT - VARIATION OF CONTRACT : What variation of contract entail;When will it be effective"Variation of contract involves a definite alteration of contractual obligations bythe mutual agreement of both parties. Variation is analogous to the entry by theparties into a new contract. The requirements of offer, acceptance andconsideration are thus imposed. In Goss v. Lord Nugent 110 ER 713 at 716, theCourt stated:"By the general rules of the common law…it is competent to the parties at anytime before breach of it, by a new contract not in writing, either altogether towaive, dissolve, or annul the former agreements, or in any manner add to,subtract from or vary or qualify the terms of it and thus make a contract..."For a variation to be effective, there must be a valid and subsisting contract onfoot between the parties; there must be some form of consensus between theparties as to the obligations which are to be altered; and it must be supported byconsideration - Oriloye v. Lagos State Government (2014) LPELR-CA/L/839 /2007,Unity Bank Plc v. Olatunji (2014) LPELR-CA/K/300/2012. A mutual abandonment ofthe existing rights of the parties under the agreement between them is sufficientconsideration to support a variation of the agreement - Ekwunife v. Wayne (WA)Ltd (1989) 5 NWLR (Pt.122) 422 and Prospect Textile Mills Ltd v. ImperialChemical Industries Plc England (1996) 6 NNLR (Pt.457) 668. Also, considerationwill be said to have been provided where a party would derive a superaddedbenefit from the contract by reason of the variation - Williams v. Roffrey Bros &Nicholas (Contractors) Ltd (1991) 1 QB 1. However, where the agreement is madeexclusively for the benefit of only one party, or where, although it is capable ofbenefiting both parties, the agreement is actually made for the benefit of onealone, it will not be effective to vary the original contract since no considerationwas present - Vanbergen v. St Edmund's Properties Ltd (1933) 213 223. Also,where one party has fully performed his side of the contract and the other party'sperformance has fallen due, no variation can be effective unless it imposes newobligation on the latter. An undertaking to perform an existing obligation does notamount to consideration to make the variation of a contract effective."Per ABIRU,J.C.A. (Pp. 61-63, Paras. A-A) - read in context
12 INTERPRETATION OF DOCUMENT - INTERPRETATION OF DOCUMENT: Howclear words of a document are to be interpreted"Now, it is an elementary principle of interpretation of documents that where thelanguage used by parties in couching the terms or provisions of a document areclear and unambiguous, the Court must give the operative words in the documenttheir simple, ordinary and actual grammatical meaning - Union Bank of Nigeria Plcv. Ozigi (1994) 3 NWLR (Pt 333) 385, Isulight (Nig) Ltd v. Jackson (2005) 11 NWLR(Pt 937) 631, Egwunewu v. Egeagwu (2007) 6 NWLR (Pt 1031) 431."Per ABIRU,J.C.A. (P. 73, Paras. C-F) - read in context
13 PRACTICE AND PROCEDURE - SPECULATION: Whether Courts are allowed tospeculate"It is not the duty of this Court to answer such queries as to do so will be takingthis Court into the realm of speculations, of speculations, an act that is a taboofor this Court to do."Per ABIRU, J.C.A. (Pp. 75-76, Paras. E-A) - read in context
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HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
(Delivering the Leading Judgment) : The Respondent
commenced the action in the Lower Court and its claims
were for:
i. A declaration that the Respondent had successfully
supplied the Appellant with 6,384,469 liters of Low Pour
Fuel Oil (LPFO) into its (Appellant's) Kano Storage facility
or tanks at N75 per liter.
ii. A declaration that the Appellant has paid the Respondent
the sum of N352,058,160.06 out of N478,835,175.00
leaving a balance of N126,777,014.37 unpaid to the
Respondent.
iii. A declaration drat the Respondent is entitled to payment
of the outstanding N126,777,014.37 from the Appellant
being the outstanding balance of the LPFO supplied to the
Appellant.
iv. An Order directing the Appellant to pay to the
Respondent the sum of N126,777,014.37 being outstanding
payment balance on 6,384,469 liters of Low Pour Fuel Oil
(LPFO) the Respondent supplied to the Appellant into its
Kano storage facility or tanks.
v. 10% interest per annum on the judgment sum from the
date of judgment is delivered until the entire judgment sum
is paid or liquidated.
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vi. Cost of filing of this
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suit.
The claims were predicated on an assertion of facts in an
amended statement of claim.
In response, the Appellant filed an amended statement of
defence and counterclaim and its claims by the
counterclaim were for:
i. The sum of N39,270,000 being the value of the shortages
of the Low Pour Fuel Oil (LPFO) supplied to it by the
Respondent.
ii. Interest on the said amount at 10% interest per annum
from the date of judgment until final liquidation of same as
well as legal costs and expenses.
The Respondent filed an amended reply to the amended
statement of defence and a defence to the counterclaim.
The case of the Respondent on the pleadings was that on
the 24th of July, 2007 the parties entered into a contract
for the supply and purchase of Low Pour Fuel Oil (LPFO)
and it was agreed that the Respondent would supply Eleven
Million liters of Low Pour Fuel Oil (LPFO) to the Appellant
and which Low Pour Fuel Oil (LPFO) was to be offloaded
into the Appellant's storage tanks at its offices in Ashaka
and Kano within six weeks and that the unit price per liter
for the supply to Ashaka would be N65.00 while that
of Kano would be
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N59.50 and that payment was to be made within two weeks
of supply of the Low Pour Fuel Oil (LPFO) by the
Respondent and confirmation of its receipt by the
Appellant. It was its case that the contract document was
executed by the representatives of the parties and that due
to exigent circumstances, it applied three times for
extension of the delivery period and that the extensions
were granted and acceded to by the Appellant.
It was the case of the Respondent that in the course of the
supply, the price of the product rose up and it became
impossible for it to continue the supply at the price agreed
per liter and it wrote to the Appellant requesting for a price
review and that the Appellant approved the request and a
price of N75 per liter of Low Pour Fuel Oil (LPFO) was
agreed. It was its case that it supplied the product into the
Appellant's Kano Storage facility and that it sent a delivery
notification to the Appellant and requested the Appellant to
send its official to confirm the delivery and that the
Appellant did so and its Stores Manager wrote confirming
that 6,384,469 liters of Low Pour Fuel Oil (LPFO) was
supplied into its Kano Storage Tank
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and that it had accepted the product as the product
supplied was found to be within the range of the
Appellant's quality parameters from the dip result
conducted. It was its case that the total price of the product
supplied was N478,835,175.00 and out of which the
Appellant paid N352,058,160.06 leaving a balance of
N126,777,014.37 which the Appellant has failed to pay
despite repeated demands.
In its case on the pleadings, the Appellant admitted that on
the 24th of July, 2007 the parties entered into a contract
for the supply and purchase of Low Pour Fuel Oil (LPFO)
and that it was agreed that the Respondent would supply
Eleven Million liters of Low Pour Fuel Oil (LPFO) to it and
which Low Pour Fuel Oil (LPFO) was to be offloaded into its
storage tanks at its offices in Ashaka and Kano within six
weeks and that the unit price per liter for the supply to
Ashaka was N65.00 while that for Kano was N59.50. The
Appellant also admitted that it was agreed that payment
was to be made within two weeks of supply of the Low Pour
Fuel oil (LPFO) by the Respondent and confirmation of its
receipt by the Appellant and that the contract document
was executed by the
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representatives of the parties and also that due to exigent
circumstances, the Respondent applied three times for
extension of the delivery period and that it granted and
acceded to the extensions. The Appellant further admitted
that in the course of the supply, the Respondent wrote to it
requesting for a price review, and it was its case that the
requested review was for N69.50 per liter for delivery to
Kano and N75.00 per liter for delivery to Ashaka and it
conceded that it wrote a letter in response approving a
price increase of N75.00 per liter, but it was its case that
the letter was silent on the point of delivery and that based
on the Respondent's letter of request, the concession must
have been for delivery to Ashaka and not for delivery to
Kano.
The Appellant admitted that the Respondent sent a delivery
notification to it saying that the required quantity of the
product had been delivered into the Kano Storage tanks
and requested it to send its official to confirm the delivery
and it was its case that it sent its officials and that dipping
was carried out to determine the content of the product in
each of the storage tanks and initial examination
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indicated that 6,375,108 liters of LPFO was supplied, but
on evacuation of the LPFO, it was discovered that the
Respondent only delivered 5,321,113 liters, making a
shortfall of 1,053,995 liters of LPFO from the figure of
6,375,1,08 liters earlier indicated and this fact was
communicated to the Respondent. It was its case that the
Respondent admitted the shortfall of the LPFO evacuated
from one of the storage tanks, as different from the initial
reading, and assured it that investigation will be carried
out and the shortfall made up and that there was no
variation of pricing in respect of delivery to its Kano
Storage tanks and that by the terms of the contract dated
the 24th of July, 2007, any amount payable to the
Respondent was subject 5% withholding tax deduction. It
was its case that it was no longer indebted to the
Respondent on the contract and that the Respondent
instituted the action in an attempt to defraud it and it
proceeded to state the particulars of fraud.
On the counterclaim, it was the case of the Appellant that
following the discovery of a shortfall of 1,053,995 liters of
LPFO when the product was evacuated, a dispute arose as
to the exact
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quantity of LPFO supplied and the quantity to be
compensated was not ascertained and that in the course of
conciliation, the Respondent admitted a shortfall of 660,000
liters in a letter dated the 2nd of March,2009.It was its
case that the value of the shortfall of 660,000 liters of LPFO
at the contract sum was N39,270,000.00 and that it was
entitled to receive this sum from the Respondent.
In its amended reply and defence to the counterclaim, the
Respondent referred to an LPFO Supply Agreement
entered into between the parties and which it said
confirmed its claims against the Appellant and it was his
case that the reviewed price of N75.00 per liter agreed by
the parties was a flat rate for all the supplies and that the
allegation of a shortfall of 1.05 Million liters of LPFO was
non-existent and was introduced by the Appellant to bring
confusion. It was its case that the Store Manager of the
Appellant confirmed in writing via email that it supplied a
total of 6,384,469 liters of LPFO into the Kano Storage
tanks of the Appellant and that this was subsequently
confirmed by a hard copy of a report on the quantity of
LPFO supplied and that all the
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subsequent letters written by the Appellant and alleging a
shortfall were afterthoughts. It was its case that it agreed
to absorb 660,000 liters out of the alleged shortfall in its
letter dated 2nd of March, 2009 in the spirit of
reconciliation at a meeting chaired by a third party and also
in return for the Appellant issuing it with a contract for the
further supply of thirty Million liters of LPFO, and not
because it acknowledged any actual shortfall and that it
was not
indebted to the Appellant for any such shortfall.
The matter proceeded to trial and in the course of which
the parties called one witness each and tendered Exhibits
in proof of their respective cases. The records show that in
the course of trial, the Lower Court delivered a Ruling
rejecting in evidence the letter of the Respondent dated the
2nd of March, 2009 which the Appellant sought to tender.
The records also show that after, the Appellant had closed
its defence and the matter was adjourned for adoption of
written addresses, the Appellant filed an application
seeking to reopen its case to lead further evidence and the
Lower Court took arguments on the application and
dismissed same in
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considered Ruling. At the conclusion of the trial and after
final written addresses by the parties, the Lower Court
delivered its judgment wherein it found that the
Respondent delivered 6,384,469 liters of LPFO into the
Kano Storage tanks of the Appellant and that the supply
was made at N69.50 per liter, and not the N75.00 per liter
claimed by the Respondent and it thus entered judgment in
favour of the Respondent, but in a lesser sum than claimed.
It entered judgment for the Respondent in the sum
N91,662,435.44 together with interest at the rate of
10% from date of judgment until full liquidation and the
Respondent was awarded cost in the sum of N60,882.00.
Both the Appellant and the Respondent were dissatisfied
with the judgment. The Appellant caused its Counsel to file
two notices of appeal - (i) notice of appeal dated the 24th of
January, 2014, and which was filed with the leave of this
Court, containing three grounds of appeal and it was
against the two Rulings of the Lower Court rejecting a
letter tendered by the Appellant and dismissing the
application of the Appellant to reopen its case to lead
additional evidence; and (ii) notice of appeal
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dated the 3rd of October 2013 containing seven grounds of
appeal and directed against the final judgment of the Lower
Court. On its part, the Respondent caused its Counsel to
file a notice of cross appeal dated the 23rd of December
2013 against the final judgment of the Lower Court and it
contained two grounds of appeal. These are the three
appeals for resolution in this matter.
In arguing the two appeals of the Appellant, his Counsel
filed a brief of arguments dated the 8th of April, 2014 and
the brief of arguments was deemed properly filed by this
Court on the 2nd of October, 2014. In response, Counsel to
the Respondent filed a brief of arguments dated the 30th of
October, 2014. Counsel to the Appellant filed a reply brief
of arguments dated the 14th of April, 2015 and it was
deemed properly filed by this Court on the 1st of June,
2015. In arguing the cross appeal, Counsel to the
Respondent filed a Cross Appellant's brief of arguments
dated the 10th of March, 2014 on the 12th of March, 2014.
The Appellant, in response, filed Cross Respondent's brief
of arguments dated the 14th of April, 2015 and it was
deemed properly filed by this Court on the 1st of
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June, 2015. The Respondent filed a Cross Appellant's reply
brief of argument dated the 8th of June, 2015 on the 10th
of June, 2015. At the hearing of the appeals and cross
appeal, Counsel to the parties relied on and adopted the
arguments in their respective briefs of arguments.
Counsel to the Appellant formulated seven issues for
determination from the two notices of appeal of the
Appellant. These were:
i. Whether the learned trial Judge was right in finding that
there was a price review from N59.50 to N69.50 per liter
for the supply of Low Pour Fuel Oil (LPFO) into the Kano
Storage tanks.
ii. Whether the learned trial Judge was right in holding that
the Respondent had supplied 6,384,469 liters of Low Pour
Fuel Oil (LPFO) to the Appellant.
iii. Whether the learned trial Judge was right in holding
that the Respondent was entitled to the payment of the sum
of N91,662,435.44 as an outstanding amount due from the
Appellant.
iv. Whether the learned Trial Judge has properly appraised
the evidence adduced.
v. Whether upon proper construction of the agreement
between the parties, Exhibit F was an admission by the
Appellant that it had
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received 6,384,469 liters of (LPFO) from the Respondent.
vi. Whether the refusal of the trial Judge to allow the
Appellant to lead additional evidence was a proper exercise
of judicial discretion.
vii. Whether the letter dated 2nd of March, 2009 from the
Respondent to the Appellant was admissible.
On his part Counsel to the Respondent formulated four
issues for determination in the appeals and he stated them
thus:
i. Whether the learned trial Judge was right in holding that
the Respondent supplied 6,384,469liters of Low Pour Fuel
Oil (LPFO) into the Appellant's Kano Storage facility or
tanks.
ii. Whether the learned trial Judge was right in holding that
the supply of 6,384,469liters of Low Pour Fuel Oil (LPFO)
was made at N69.50 per liter.
iii. Whether in the circumstances of this case, the learned
trial Judge was right in refusing the Appellant's motion to
reopen its case and lead additional evidence.
iv. Whether the learned trial Judge was right in rejecting
the letter dated 2nd March, 2009 being privileged
document.
On the cross appeal, Counsel to the Respondent, as counsel
to the cross appellant,
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formulated only one issue for determination and it was:
''Whether the learned trial Judge was right in holding that
the supply of the 6,384,469 liters of LPFO into the
Appellant's Kano Storage facility or tanks were made at the
rate of N69.50 per liter.''
Counsel to the Appellant, as counsel to the cross
respondent, agreed that there was one issue for
determination in the cross appeal, but he reformulated the
issue thus:
''Whether there was a price review from N59.50 to N75.00
per liter for the LPFO supplied into the Kano Storage tanks
of the Appellant.''
Reading through the notices of appeal of the Appellant,
particularly the notice of appeal against the judgment of
the Lower Court, the notice of cross appeal of the
Respondent and the briefs of arguments of the parties in
this appeal, it is obvious that the issue arising for
determination in the cross appeal is very similar to one of
the issues for determination arising in the appeals of the
Appellant and that the submissions of the Counsel on the
issue in the appeal and cross-appeal were interwoven and
any attempt to segment them and to resolve the appeal and
cross-appeal separately will
13
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6) LP
ELR-40
196(
CA)
only lead to a segregated reasoning and disjointed
conclusions. This Court will thus consider both the appeals
of the Appellant and the cross-appeal of the Respondent
together.
It is the view of this Court that there are four issues arising
for determination in the appeals and cross appeal and these
are:
i. Whether the learned trial Judge was right in rejecting in
evidence the letter dated 2nd March, 2009 and written by
the Respondent to the Appellant when it was sought to be
tendered by the Appellant in the course of trial.
ii. Whether in the circumstances of this case, the Lower
Court was right in refusing the Appellant's motion filed to
reopen its case and lead additional evidence after the close
of trial.
iii. Whether, based on the oral and documentary evidence
led by the parties, the Lower Court was correct in holding
that the quantity of Low Pour Fuel Oil (LPFO) supplied by
the Respondent into the Appellant's Kano Storage facility
or tanks and for which the Appellant was liable to pay was
6,384,469 liters.
iv. Whether, based on the oral and documentary evidence
led by the parties, the Lower Court was correct in holding
that the
14
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6) LP
ELR-40
196(
CA)
initially agreed price per liter, N59.50, was subsequentlyreviewed by the parties, and, if so, was the review to theprice of N69.50 or N75.00.The appeals of the Appellant and the cross-appeal of theRespondent will be resolved on these issues fordetermination. All the arguments of Counsel to theparties will be considered under these issues fordetermination and the issues will be dealt with seriatim.
Issue OneGoing to the first issue for determination, this Courtconsiders it pertinent to reproduce what took place inthe Lower Court when the document was sought to betendered, before considering the arguments thereon inthis appeal. The records of appeal read thus:"DW1 - In Paragraph 25 of my deposition dated the29/4/2013 I made reference to a letter dated 2/ 3/ 2009.Oke - We seek to tender the document in evidence.Aliyu - I object to the admissibility of the documentbecause it is a photocopy and proper foundation was notmade as required by Section 89 Evidence Act 2011. Irefer to the case of Anatogu v. lweka II ...Secondly, the document sought to be tendered is notadmissible in evidence because it is a
15
(201
6) LP
ELR-40
196(
CA)
privileged document made in the process of reconciliation
and the defendant admitted that fact it its amended
statement of defence and in Paragraph 2 of our amended
reply to the amended defence and counterclaim we made
reference to the said document. I refer to Alkadiri
v. Atanda ... also the case of Fawehinmi v. NBA ... I urge
the Court to reject the document and mark it tendered and
rejected.
Oke - In reply, it is trite law that relevancy is the backbone
of admissibility. If the document is relevant, it is
admissible. The document is not made at the reconciliation
process and is not made by the mediator. It was an
admission by the claimant and it is relevant to this case. I
urge the Court to admit it as it is their document.
Aliyu - It is trite that it is only relevance of the document
that governs admissibility. The document must be
admissible in law if it is relevant and it is not admissible in
law if it is not admissible. In the absence of primary
document, where secondary evidence is sought to be
tendered proper foundation must be made....
Court - The objection is upheld. The document dated
2/3/2009 – Resolution Proposal on
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6) LP
ELR-40
196(
CA)
Business Relationship from Asharatul Mubashshirun
Investment Ltd to Managing Director Ashaka Cement Plc is
marked, tendered and rejected pursuant to the decision of
the Supreme Court in the case of Fawehinmi v. NBA ..."
(see pages 57 to 58 of the records)
In arguing the first issue for determination, Counsel to the
Appellant stated that the document tendered and rejected
was listed on the list of documents to be relied on and it
was frontloaded, and in the course of the pre-trial, the
Respondent did not state that he was going to object to the
admissibility of the document and this fact was reflected in
the pre-trial conference report and that by reason of the
pleadings, list of documents and the pretrial conference
report, the case of Fawehinmi v. NBA was inapplicable
and it was too late in the day for the Respondent to object
to the admissibility of the document and it was thus a
misdirection for the Lower Court to have rejected it.
Counsel stated that assuming without conceding that the
case of Fawehinmi v.
NBA was applicable to the case, a proper examination of
the facts and principles of the case shows that they are not
in tandem with this case
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6) LP
ELR-40
196(
CA)
because there was no evidence adduced in this case that
the parties agreed that the letter would not be tendered in
evidence and the letter was not marked "without prejudice"
and secondly, the admission in the letter was plot made in
the course of a bona fide attempt to settle and neither was
it made for the purpose of reaching a compromise and that
the admission in the letter had already been made and
communicated to the Appellant before the letter was
written. Counsel stated further that the Appellant pleaded
fraud and that in proving fraud, all relevant documents
were admissible, even if illegally obtained and he referred
to the case of Musa Sadau v. The State (1968) All NLR
128 and continued that all relevant documents are
admissible and the goodness or badness goes to weight
only and he referred to the case of Garton v. Hunter
(1969) 2 QB 37. Counsel stated that the letter dated 2nd of
March,2009 was thus admissible and he urged this Court to
use its powers under Section 15 of the Court of Appeal
Act2004 to admit the document and al low the
counterclaim.
In response, Counsel to the Respondent stated the
Appellant admitted in the statement of
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6) LP
ELR-40
196(
CA)
defence that the document in question was a privileged
document as it emanated out of a process of conciliation
and that it is recognized that in some circumstances it is
not essential that the words "without prejudice" be used
and it may be implied that negotiation was conducted on
this understanding and he referred to the cases of
Ashibogwu v. A. G. Bendel State (1988) 1 NWLR (Pt 69)
138 and Fawehinmi v. NBA (No.2) (1989) 2 NWLR
(Pt.105) 558. Counsel stated that the document in issue
having been made in the course of conciliation or
settlement, it is impliedly without prejudice and cannot
constitute an admission of liability on the part of the
Respondent and he referred to the case of Akanbi
v. Alatede (Nig) Ltd (2000) 1 NWLR (Pt 639) 125.
Counsel stated that the reference made by Counsel to the
Appellant to the plea of fraud is a non-starter because the
Lower Court found that the Appellant failed to prove the
allegation of fraud and that this finding was not appealed
against and that as such it cannot be canvassed again and
he referred to the case of Jimoh v. Akande (2009) NWLR
(Pt.1135) 549. Counsel stated that the Appellant has not
given this Court any
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6) LP
ELR-40
196(
CA)
reason to tamper with the judgment of the Lower Court
dismissing the counterclaim of the Appellant and that this
Court should refuse the Appellant's request that the
judgment on the counterclaim be set aside.
The document that was tendered by the Appellant and
rejected in evidence by the Lower Court was a letter dated
2nd March, 2009 and written by the Respondent to the
Appellant and which, according to the Lower Court, was
captioned Resolution Proposal on Business Relationship. In
pleading the document, the Appellant averred in its
counterclaim that a dispute arose between the parties as to
the exact quantity of LPFO supplied and the quantity to be
compensated for was not ascertained and in the course of
reconciliation, the Respondent admitted a shortfall of
660,000 liters in a letter dated the 2nd of March, 2009.
These facts were reiterated by the sole defence witness in
his written testimony in his evidence in chief. In its
amended reply, the Respondent pleaded that it agreed to
absorb 660,000 liters out of the alleged shortfall in its
letter dated 2nd of March, 2009 in the spirit of
reconciliation at a meeting chaired by a third party and also
in
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6) LP
ELR-40
196(
CA)
return for the Appellant issuing it with a contract for the
further supply of thirty Million liters of LPFO, and not
because it acknowledged any actual shortfall. Thus, the
parties were agreed on the pleadings and the evidence that
the said letter was written in the course of mediation of a
dispute that arose between parties.
The position of the law on the admissibility of a statement
made or document written in the course of negotiation to
settle a dispute has since been resolved by our Courts. In
Ashibuogwu v. Attoney General Bendel State (1988) 1
SC 248, Nnaemeka-Agu, JSC put the law thus:
"A statement made in the course of a negotiation of the
compensation or the offer of such a compensation would, in
my view, be analogous to a statement made "without
prejudice" during a negotiation. The law has always taken
the view that parties should speak freely in attempting a
settlement of their disputes. That freedom of discussion will
be seriously prejudiced if any offer or admission made in
the process of the negotiation could be given in evidence
and be used to support a party's case in Court afterwards,
should the negotiation break down. Where such
21
(201
6) LP
ELR-40
196(
CA)
negotiations are made by written communication they are
usually marked "without prejudice" and are inadmissible
against the parties in that suit. But it is recognized that in
some circumstances it is not essential that the words
"without prejudice" should have been used: it may be
implied that negotiations were conducted on this
understanding. Hence in Mole v. Mole . . . , oral
communications to a conciliator by a party to a matrimonial
dispute was treated as having been made without
prejudice. See also Pool v. Pool ...; Henley v. Henley ...
Although these two cases deal with privilege attaching to
statements made during negotiations as between a
husband and his wife during a dispute, the principle is
rather broadly - based. The learned authors of Phipson On
Evidence (11th Ed) put it thus . . . 'Offers of compromise
made expressly or impliedly 'without prejudice" cannot be
given in evidence against a party as admissions; the law on
grounds of public policy, protects negotiation bona fide
entered into for the settlement of disputes.' The privilege
is, however that of the parties."
In other words, an offer or admission made in a written
document in the course
22
(201
6) LP
ELR-40
196(
CA)
of negotiation between parties to resolve a dispute is
inadmissible against the party that made it in a subsequent
litigation on the subject matter of the dispute, whether or
not that document was marked "without prejudice". This
statement of law was reiterated by the Supreme Court in
Fawehinmi v. Nigeria Bar Association (No. 2) (1989) 2
NWLR (Pt.105) 558 and by this Court in Akanbi v. Alatede
(Nig) Ltd (2000) 1 NWLR (Pt 639) 125, Kolo v. First
Bank of Nigeria Plc (2003) 3 NWLR (Pt.806) 216, Ibiyeye
v. Gold (2011) LPELR-CA/L/M/95/2010 and Acmel Nigeria
Ltd v. First Bank of Nigeria Plc (2014) 6 NWLR
(Pt.1402) 158. This principle was given a partial statutory
imprimatur in Section 196 of the Evidence Act which
reads "a statement in any document marked "without
prejudice" made in the course of negotiation for a
settlement of a dispute out of Court, shall not be given in
evidence in any civil proceeding in proof of the matters
stated in it.
Counsel to the Appellant submitted that the above principle
should not apply in the instant case because the
Respondent did not indicate at the pretrial conference that
he would be objecting to the admissibility of
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6) LP
ELR-40
196(
CA)
the letter at trial. It is the view of this Court that though it
is desirable that a party should indicate at the pretrial
conference of a matter if it is going to object to the
admissibility of any document that the other party has
listed as one to be relied on at trial, the failure to so
indicate cannot, should not, prevent the party from raising
an objection to admissibility at trial. This is because that
proper time for a party to object to the admissibility of a
document is at the time it is tendered in evidence -
Lawson-Jack v. Shell Petroleum Development Co (Nig)
Ltd (2002) 13 NWLR (Pt.783) 180, Fatubi v. Olanloye
(2004) 12 NWLR (Pt.887) 229. The party who was misled
by the failure of the other party to indicate its objection at
pretrial conference can be compensated in costs, but such
failure to indicate should not be a ground for admitting a
document that the Evidence Act states is inadmissible in
law. The Rules of Court cannot override a substantive
legislation. Also, the fact that the Appellant pleaded fraud
is irrelevant to the admissibility of the document, and this
more so as the letter had nothing to do with the fraud
pleaded by the Appellant;
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ELR-40
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CA)
fraud was pleaded in the assertion in its defence to the
claim of the Respondent whilst the letter was pleaded as
part of its counterclaim.
The finding of the trial Court that the letter dated 2nd
March, 2009 and written by the Respondent to the
Appellant and which, according to the Lower Court, was
captioned Resolution Proposal on Business Relationship, is
inadmissible cannot be faulted in the circumstances of this
case. The first issue for determination is resolved against
the Appellant.
Issue Two
On the second issue for determination, the records of
appeal show that at the conclusion of the evidence in chief
of the sole witness of the Respondent, Counsel to the
Appellant declined cross examination and opened the
defence of the Appellant. The records show that at the
conclusion of the evidence and cross examination of the
sole witness of the Appellant, Counsel to the Appellant
applied for time for the parties to file their respective final
addresses and for a date for the adoption of the final
addresses. All these transpired on the 29th of April, 2013
and the Court gave the parties two weeks each to file their
final addresses and adjourned the
25
(201
6) LP
ELR-40
196(
CA)
matter to the 31st of May, 2013 for adoption of addresses.
The records show that rather than file a written address,
Counsel to the Appellant filed a motion on notice on the
30th of May, 2013 praying for leave to reopen the case of
the Appellant to lead further evidence and to recall the
witness of the Respondent for cross examination. The
records show that Counsel to the Respondent opposed the
application. The Lower Court took arguments on the motion
and dismissed it in a considered Ruling delivered on the
19th of June, 2013. The Lower Court stated in the Ruling
thus:
"... In determining this application we must not forget that
it is a case instituted under the Fast Track Procedure. By
the Fast Track Rules, cases under the Fast Track Procedure
are to be concluded, i.e. final judgment in the case to be
delivered, within 8 months from the date of filing and the
present case, a fast track case, is already over 6 months. By
Order 4 Rule 2(b) of the Fast Track Procedure,
applications are promptly made to avoid delay in the
conduct of cases in the fast track. At the close of the case
for both parties on 29/4/2013 the matter was adjourned for
adoption of
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6) LP
ELR-40
196(
CA)
written address to the 31/5/2013. On 31/5/2013, the
applicant brought a motion for leave to reopen its case and
recall PW1 for cross examination. It is pertinent to point
out at this stage that when the respondent's counsel was
asked to cross examine the claimant's witness, i.e. PW1,
she said she had no questions for him and was recorded
accordingly. The following questions to be asked are;
1. Whether the Respondent has been given the opportunity
to know the case it has to meet at the hearing and to
adequately prepare for its defence.
2. Whether the Respondent has been present all through
the proceedings to heal all the evidence against it.
3. Whether the Respondent has been given the right to
cross examine the witness who gave evidence against it.
4. Whether it has been granted access to and the
opportunity to read all the documents tendered in evidence.
If all the above questions are answered in the affirmative, it
follows therefore that a person who is to enjoy a benefit
and is fully aware of his right to the benefit but decides not
to utilize such right, shows that the party deliberately
refused to take advantage when it was
27
(201
6) LP
ELR-40
196(
CA)
availed it. The Respondent/Applicant had all the
opportunity available to them but failed to utilize same. The
Applicant's counsel contention that the counsel who
conducted the case acted contrary to his instructions will
not hold in the circumstances of this case, even if it were
not a case under the Fast Track Procedure. More so, when
the Respondent's counsel Mrs. Mary Joseph Adeyi has been
the counsel in the case throughout the trial. In
Willoughby's case ... relied on by both counsel, it was 8
days after the closure of the case that an application of this
nature was brought. In the present case it is 31 days after
the closure of the case, i.e. on the date the addresses of
counsel were to be adopted, when the application was
brought. This also goes to show lack of diligence in the
attitude of the Respondent. He who comes to equity must
come with clean hands and equity aids the diligent and not
the indolent. The Court has statutorily done all that is
required of it to do to give the Respondent /Applicant all
the opportunity for its defence. As such, the misuse of this
opportunity by Respondent/Applicant must be presumed
that the right is left to go. The
28
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6) LP
ELR-40
196(
CA)
Respondent/applicant cannot be heard to complain.
In a recent decision of the Supreme Court, Chukwura
v. FRN . . ., the Supreme Court held that the general
principle of law and practice in our adversarial system is
that after the close of a case, no further evidence ought to
ordinarily be given by any of the parties.
In line with the above decision of the Supreme Court, I
refuse the application and it is accordingly dismissed. "
In arguing the second issue for determination, Counsel to
the Appellant stated that the application fell with the power
of judicial discretion and that there were no hard and fast
rules on the exercise of judicial discretion but that where
due weight is not given to relevant considerations, an
appellate Court would interfere and he referred to the case
of UBN Plc v. Astra Builders (2010) 5 NWLR (Pt 1186) 1.
Counsel stated that the considerations taken into account
by the Lower Court in refusing the application were out of
tune with the current judicial attitude to litigation and that
the decision in Willoughby v. IMB Ltd (1987) 1 NWLR
(Pt.48) was based on the principles stated by the Supreme
Court in the 1967 case of
29
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6) LP
ELR-40
196(
CA)
Ogbodu v. Odogha (1967) NMLR 400 and that this
decision was rendered at a time that the attitude of the
Courts was profoundly more technical in litigation and that
the philosophy has since changed to that of doing
substantial justice to the litigants. Counsel stated that the
Lower Court was clearly far more concerned about the case
being fast track and applying the rigid principles developed
by the Court in the earlier era and that the case of
Willoughby v. IMB did not outlaw the recall of witnesses
in civil proceedings and the Lower Court ought to have
viewed the principles more liberally in these days of
substantial justice and he referred to the case of Saleh
v. Mongunu (2006) 15 NWLR (Pt 1001) 26. Counsel stated
that the learned trial Judge refused to exercise its
discretion on the authority of the case of Chukwurah
v. FRN (2011) 5 SCNJ 40, a case which arose in a criminal
case with a different standard of proof as opposed to a civil
proceeding and that on this score alone the failure to
exercise discretion by the Lower Court ought to be
reviewed by this Court. Counsel urged this Court to resolve
the issue for determination in favour of the Appellant.
30
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6) LP
ELR-40
196(
CA)
On his part, Counsel to the Respondent stated that the
grant or refusal of the application in question was entirely
at the discretion of the Lower Court and which discretion
was to be exercised judicially and judiciously and he
thereafter traversed through the history of the case from
inception up till when the application was filed and stated
that no Court of law or equity would have exercised its
discretion in favour of the application of the Appellant in
the circumstances. Counsel stated that the entire conduct
of the Appellant from inception was to seek to delay the
progress of the matter and frustrate the Respondent and
that the Counsel to the Appellant chose willingly to forgo
the right to cross examine the witness of the Respondent
and that the hands of the Appellant who went before the
Lower Court to seek an equitable relief were not clean.
Counsel stated that the case of Willoughby v. IMB was
applicable to the facts of this case and he also referred to
the case of Re: Chief Bolaji Bakare (1969) All NLR 74
and stated that the Lower Court rightly refused to exercise
its discretion in favour of the application of the Appellant in
line with the justice
31
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6) LP
ELR-40
196(
CA)
of the case and that this exercise of discretion must not be
disturbed by this Court for the simple reason that this
Court would have exercised the discretion differently and
he relied on the case of Nigerian Laboratory Corp
v. PMB Ltd (2012) 15 NWLR (Pt.1324) 505. Counsel urged
this Court to resolve the issue for determination in favour
of the Respondent.
It is not in contest that the grant or refusal of an
application by a party seeking to recall a witness and to
reopen a case to lead additional evidence is entirely at the
discretion of the trial Judge - Ogbodo v. Odogha (1967)
NMLR 400, Willoughby v. IMB Ltd (1987) 1 NWLR
(Pt.48) 105, Nebo v. Federal Capital Development
Authority (1998) 1 NWLR (Pt.574) Orisakwe & Sons Ltd
v. Afribank Plc (2012) LPELR-CA/J/11/2005, Iyawe
v. Mene (2014) LPELR-CA/B/374/2012.
It is trite that when a Court is called upon to exercise its
discretion in favour of an application, it must ensure that it
does not act arbitrarily but judicially and judiciously based
on sound principle of law and by giving weight to relevant
considerations - First Fuels Ltd v. NNPC (2007) 2 NWLR
(Pt 1018) 276.
Thus, for party to succeed in
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6) LP
ELR-40
196(
CA)
showing that a trial Judge exercised his discretion wrongly
he has the onus to justify the fact that the discretion was
not exercised judicially, i.e. that the discretion was
exercised in an arbitrary manner and without due regard to
all relevant considerations of necessary factors or on
reliance up on wrong principles - National Bank of
Nigeria Ltd v. Guthrie (Nig) Ltd (1993) 3 NWLR (Pt 284)
643 and Statoil (Nig) Ltd v. Star Deep Water
Petroleum Ltd (2015) 16 NWLR (Pt.1485) 361.
The exercise of the discretion to grant an application to
recall a witness in civil matters and to lead additional
evidence is not governed by any statutory provision and it
is largely a matter of practice and it is predicated on the
peculiar facts and given circumstances of the particular
case and coupled with its attendant exigencies. Over the
years, the Courts have developed guidelines to be applied
by trial Courts in the exercise of discretion to recall a
witness to give additional evidence. In Ogbodu v. Odogha
(1967) NMLR 400, the Supreme Court stated that
"undoubtedly the discretion to recall a witness by a Judge is
one which should be exercised with great care, regard
33
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6) LP
ELR-40
196(
CA)
being had to the interest of justice and the desirability of
remaining an impartial arbiter between the parties." Thus,
great care is the first constraint to the exercise of the
discretion. Secondly, in Willoughby v. International
Merchant Bank Ltd supra, Obaseki, JSC noted the
exercise of the discretion is limited to grant of leave to call
fresh evidence and the learned Justice proceeded to state
thus: "what is fresh evidence? I think this is evidence that
was not available previously which is designed to be a reply
to the evidence given by the other side, on points material
to the determination of the issue or any of them. It could
not, in my view, be evidence which ought to have been led
to establish the facts pleaded and meet the issues raised on
the pleadings. If it were otherwise, the purpose of
pleadings would be defeated."
Where the application is made to call evidence which was
available to a party when the witness testified and it is
simply to fortify or strengthen the case of the party, the
discretion will not be exercised in favour of the application
- Bassey v. Ekanem (2001) 1 NWLR (Pt.694) 376. Thirdly,
also in Willoughby v. International
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6) LP
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196(
CA)
Merchant Bank Ltd supra, Oputa, JSC stated that for the
trial Court to exercise the discretion, the party applying to
recall the witness must supply sufficient materials relating
to why he wants the witness recalled and what he intends
to put to the witness and it is on these facts that the trial
Judge will decide whether or not the justice of the case
obliges him to exercise his discretion one way or the other.
Where this is not done, the trial Judge will be handicapped
in exercising its discretion in favour of the application -
Musa v. Dalwa (2010) LPELR-CA/J/242/2001.
Reading through the above excerpts of the Ruling
complained against, it is obvious that the Lower Court
refused the application of the Appellant on the grounds that
the Counsel to the Appellant did not give reasonable and
plausible reasons to sustain the prayers sought and that
there was an unexplained delay of thirty-one days in the
filing of the application. Counsel to the Appellant did not
contend these reasons of the Lower Court in his arguments
in this appeal. It is pertinent to point out that the
application of the Appellant in question was very similar to
the application that was
35
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6) LP
ELR-40
196(
CA)
in issue in the case of Willoughby v. International
Merchant Bank Ltd supra and which went to the
Supreme Court and the Supreme Court stated that the
grant of the application in that case by the trial Court in the
"interest of justice" was a wrongful and an injudicious use
of discretion. The Lower Court was right to have drawn
strength from the position of the Supreme Court in that
case in reaching its conclusions on the application of the
Appellant. Counsel to the Appellant argued in this appeal
that the principles enunciated by the Supreme Court in the
case of Willoughby v. International Merchant Bank
Ltd had become archaic and no longer relevant, but he
failed woefully to state the present relevant principles to
the application of the Appellant and/or refer to one
"modern day" case where the principles were canvassed,
different from those in Willoughby v. International
Merchant Bank Ltd.
The reasons given by the Lower Court for dismissing the
application of the Appellant came within the relevant
considerations and guidelines laid down in decided cases
for dealing with an application of that nature and they were
not extraneous. The additional evidence
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6) LP
ELR-40
196(
CA)
sought to be given by the Appellant was not fresh evidence
and all that the Appellant sought to do by the application
was to reopen his case and call additional evidence to
fortify and strengthen the case, after the close of trial by
mutual agreement. It is settled law that an appellate Court
will rarely interfere with the exercise of discretion by a
Lower Court and will only do so where the exercise is
based on extraneous issues or where the exercise of such
discretion was not bona fide - Integration (Nig) Ltd
v. Zumafon (Nig) Ltd (2014) 4 NWLR (Pt.1398) 479. The
Appellant has not shown that the exercise of discretion by
the Lower Court to refuse his application was an
injudicious, arbitrary or reckless exercise of discretion. The
Appellant has not given this Court any reason to interfere
with the exercise of discretion by the Lower Court. The
second issue for determination is resolved against the
Appellant.
Issue Three
This takes us to the third issue for determination - whether
based on the pleadings and evidence, the Lower Court was
correct in holding that the quantity of Low Pour Fuel Oil
(LPFO) supplied by the Respondent into the Appellant's
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6) LP
ELR-40
196(
CA)
Kano Storage facility or tanks and for which the Appellant
was liable to pay was 6,384,469 liters. In arguing this issue,
Counsel to the Appellant stated that the transaction
between the parties were governed by two documents, the
contract for the supply of Eleven Million liters of Low Pour
Fuel Oil (LPFO) dated the 24th of July, 2007, tendered as
Exhibit A, and the addendum thereto made on the 12th of
August, 2008, tendered as Exhibit K, and that the
addendum contained more detailed provisions in the form
of a formal contract. Counsel stated that under the
contract, Exhibits A and K, the quantity of LPFO supplied
was one thing and quantity of LPFO evacuated by the
Appellant from its storage tanks was a completely different
matter and that the amount to be taken as delivered to the
Appellant is the quantity evacuated and it is for that
quantity that the liability of the Appellant to pay arises.
Counsel stated that the finding of the Lower Court that 'by
Exhibits F and K the Appellant acknowledged the supply of
6,384,469 liters of LPFO at the Kano Storage tanks by the
Respondent' was not supported by evidence and that
Exhibit F, a letter addressed to the
38
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CA)
Respondent by the Store Manager of the Appellant, stated
in its last sentence that liability was dependent on the
evacuated product and thus, did not amount acceptance of
liability for 6,384,469 liters of LPFO.
Counsel stated that the reliance placed by the Lower Court
on Exhibit L, an email dated the 12th of May, 2008, which
emanated from the Store Manager of the Appellant and was
addressed to other staff of the Appellant and to which was
attached a report titled "Inspection Report of Kano LPFO
Storage tank", to find liability on the part of the Appellant
for 6,384,469 liters of LPFO was wrongful because the
document was inconclusive as it was not signed and there
was no evidence that the recommendations made therein
were accepted by the Appellant and he referred to the case
of Chrisdon Industrial Ltd v. AIB Ltd (2002) 8 NWLR
(Pt.768) 152. Counsel stated that the ambivalence of
Exhibit L, was resolved by Exhibit F, written by the same
store manager of the Appellant, wherein it was clearly
stated that the liability of the Appellant was dependent on
the quality of LPFO evacuated from the storage tank by the
Appellant and not on the quantity alleged
39
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196(
CA)
supplied by the Respondent and that Exhibit K which was
subsequent to Exhibits L and F, made it clear that
evacuation was the key. Counsel stated that Exhibit F was
followed up by Exhibit N, a letter written in November,
2008 notifying the Respondent that on the completion of
the evacuation exercise a shortage of 1,053,995 liters was
recorded, but that the Lower Court commenting on Exhibit
N, stated that the shortages complained of were not in
respect of the issue in contention and that this amounted to
the Lower Court making a case for the parties and this was
not part of the duty of a Court and he referred to the case
of Baker Marine Nig Ltd v. Chevron (Nig) Ltd (2006)
13 NWLR (Pt.997) 276.
Counsel stated the preamble to Exhibit K which stated that
"The Supplier has supplied 6,384,469 liters of LPFO to
Purchaser's storage tanks in Kano" did not amount to
admission of liability and that Exhibit K was internally
inconsistent and that the measurement mentioned in the
preamble was still subject to quantity loaded into the trucks
of the Appellant in accordance with clause 4(b) of the
Exhibit and that until then, the product remained at the
risk of the
40
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CA)
Respondent, clause 3(a). Counsel stated that the real bone
of contention was not that of supply at Kano storage tanks
because the parties were agreed that supply into Kano
storage tanks was not the same as supply to the Appellant
and that supply to the Appellant was, under the contract,
when the product is received and this happens when the
quantity of LPFO was loaded at the Kano storage tanks into
the trucks of the Appellant and that this was the real bone
of contention as it was the quantity loaded into the trucks
that defined the liability of the Appellant and the amount it
is to pay. Counsel stated that upon a proper construction of
Exhibits L, F and K they will be found to be consistent that
payment was only for the exact quantity loaded into the
Appellant's trucks and that in case of dispute arising from
documentary evidence the whole documents are read
together to resolve the conflict and he referred to the case
of Ezenwa v. KSHSMB (2011) 9 NWLR (Pt.1251) 89.
Counsel stated that the duty of the Court is to interpret the
agreement between parties strictly and he referred to the
case of Odutola v. Papersack (Nig) Ltd (2006) 18 NWLR
(Pt.1012) 470 and
41
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CA)
concluded that the Lower Court was thus in error when it
found that the Respondent had supplied 6,384,469 liters of
LPFO to the Appellant. Counsel urged this Court to resolve
this issue for determination in favour of the Appellant.
In his response arguments, Counsel to the Respondent
traversed through the pleadings and the unchallenged
evidence of the sole witness called by the Respondent and
the evidence of the sole defence witness of the Appellant
and stated that it was very obvious that the Lower Court
predicated its findings and conclusions on the pleadings
and evidence led by the parties and that this Court will not
interfere with a finding a fact made by a trial Court on the
strength of the pleadings and evidence led at trial and he
referred to the case of Ojo v. Governor of Oyo State
(1989) 1 SC (Pt.1) 1. Counsel stated that the assertion of
Counsel to the Appellant that Exhibit L, the email that
emanated from the Store Manager of the Appellant, was
inconclusive and not signed thus making it of doubtful
evidential value was not correct because the authenticity of
the email and of its contents were confirmed by the defence
witness in his testimony.
42
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Counsel stated that in the course of trial, the sole witness
called by the Respondent gave evidence as to the quantity
of the LPFO supplied as 6,384,469 liters and he was not
cross examined by the Counsel to the Appellant and neither
was the witness confronted with the alleged issue of
shortages being canvassed by the Appellant and that it was
settled law that where an adversary testifies on a material
point in controversy in a matter and the other party fails to
cross examine him on that point, the other party will be
deemed to have accepted the truth of that testimony on the
point and he referred to the case of Amadi v. Nwosu
(1992) 5 NWLR (Pt.241) 273.
Counsel stated that the entire issue of shortages being
raised and canvassed by the Appellant was speculative as
there was clear evidence in Exhibits F, K and L that the
parties were agreed that the Respondent supplied
6,384,469 liters of LPFO and that this quantity of LPFO was
confirmed to have been accepted by the Appellant and he
thereafter referred to the specific contents of the Exhibits.
Counsel stated that the alleged shortages of 1,053,995
liters of LPFO was not proved by the Appellant as the
43
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CA)
defence witness admitted that his evidence on oath was
different from the contents of Exhibit N where the issue of
shortages was raised for the first time and that the said
Exhibit N had no bearing on the case before the Lower
Court as it referred to the supply of 6,375,708 liters of
LPFO and not in respect of the supply of 6,384,469 liters
which was the subject of dispute between the parties and
that thus the finding of the Lower Court that Exhibit N was
not related to the case at hand cannot be faulted. Counsel
stated that assuming that Exhibit N was relevant to the
case at hand, it still was not useful to establish the alleged
shortages because Exhibit K stipulated that Appellant shall
ensure complete evacuation of the product from its Kano
Storage tanks within three to four weeks of the agreement,
Exhibit K, and that the agreement was signed on the 12th
of August, 2008 while Exhibit N was issued on the 12th of
November, 2008.
Counsel stated further that the contents of Exhibit N
amounted to an attempt by the Appellant to alter and/ or
vary the contents of Exhibit K wherein the Appellant had
accepted that the confirmed quantity of LPFO supplied by
the
44
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ELR-40
196(
CA)
Respondent was 6,384,469 liters and that clause 9 of
Exhibit K stated that no such alteration of the agreement
shall be effective unless made in writing and accepted by
the authorized signatories of both parties and the contents
of Exhibit N was not so accepted by the authorized
signatories of the parties. Counsel stated that it was in
evidence before the Lower Court that the Appellant
commenced making payments to the Respondent for the
LPFO supplied long before Exhibit N was issued and that a
further payment was made even after it was issued as
confirmed by Exhibits H, I and J and that the question was
why were payments for the LPFO before and even after the
evacuation of the product and the alleged discovery of
shortages and that the only plausible answer was that
Exhibit N was an afterthought. Counsel stated that if
indeed there was any shortages from the 6,384,469 liters of
LPFO agreed and confirmed by the parties to have been
supplied, the Appellant would have notified the Respondent
within four weeks of the making of Exhibit K and definitely
before making payments because according to Exhibit K
payment for the product supplied was to be made after
45
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196(
CA)
notification of confirmed quantity supplied within one week
of evacuation. Counsel stated that these showed that the
quantity of product supplied and evacuated was 6,384,469
liters of LPFO and that the finding of the Lower Court on
the point was this correct. Counsel urged this Court to
resolve this issue for determination in favour of the
Respondent.
The facts of this case are pretty straight forward and they
are not really in contest, both on the pleadings and in the
evidence led. It was not in contest between the parties that
by a contract dated the 24th of July 2007 it was agreed that
the Respondent would supply Eleven Million liters of Low
Pour Fuel Oil (LPFO) to the Appellant and which Low Pour
Fuel Oil (LPFO) was to be offloaded into the Appellant's
storage tanks at its offices in Ashaka and Kano within six
weeks and that the unit price per liter for the supply to
Ashaka would be N65.00 while that for Kano would be
N59.50 and that payment was to be made within two weeks
of supply of the Low Pour Fuel Oil (LPFO) by the
Respondent and confirmation of its receipt by the
Appellant; the contract was Exhibit A at the trial. It was not
in contest that the
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Respondent wrote letters at different times requesting for
extension of the six weeks supply period and the Appellant
conceded the requests; the letters of the Appellant dated
the 26th of July, 2007, 24th of October, 2007 and dated 7th
of February, 2008 consenting to the Respondent's requests
for extension were Exhibits B, C and D.
It was not in contest that due to an increment in the price
of the product, the Respondent wrote a letter dated the
27th of February, 2008 requesting for a price review and it
proposed the price of N69.50 per liter for supplies to Kano
and N75.00 per liter for supplies to Ashaka and that by a
letter dated the 28th of February 2008, the Respondent
approved a price increase to the sum of N75.00 per liter;
the letter requesting for price review and that approving
the review were Exhibits M and E respectively at the trial.
It was not in contest that the Respondent supplied the
LPFO into the Appellant's Kano Storage facility and it sent
a delivery notification dated the 30th of April, 2008 to the
Appellant and requested the Appellant to send its officers
to confirm the delivery and that the Appellant did so and its
Stores Manager, by
47
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196(
CA)
an email dated the 12th of May, 2008 and to which was
attached an Inspection Report and also by a letter dated
the 27th of May, 2008, confirmed that 6,384,469 liters of
Low Pour Fuel Oil (LPFO) was supplied into its Kano
Storage Tank and that it had accepted that quantity of
product as it was within the range of its quality parameters
from the dip result conducted; the delivery notification, the
email with attachment and letter of confirmation were
Exhibits O, L and F respectively.
It was not in contest that Appellant made some payments to
the Respondent and these were the sum of N139 Million on
the 14th of July, 2008, the sum of N120 Million on the 12th
of August, 2008, the sum of N70 Million on the 1st of
November, 2008 and the sum of N23,058,160.63 on the 6th
of April, 2009 making a total of N352,058,160; tellers and
statement of account of the Respondent in proof of the
payments were Exhibits G, H, I and J. It was not in contest
that on the 12th of August, 2008 the parties executed a
LPFO Supply Agreement which was stated to be an
addendum of the contract entered between the parties on
the 24th of July, 2008; the Agreement was Exhibit K
It was the
48
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ELR-40
196(
CA)
case of the Respondent before the Lower Court that the
Appellant was liable to pay it for the 6,384,469 liters of Low
Pour Fuel Oil (LPFO) supplied into the storage tanks of the
Appellant in Kano and the receipt of which was confirmed
and accepted by the officers of the Appellant. The case of
the Appellant was that by the terms of LPFO Supply
Agreement dated 12th of August, 2008, Exhibit K the
amount LPFO to be taken as delivered to the Appellant is
the quantity evacuated from the storage tanks at the time
of loading it unto the trucks of the Appellant, and not the
quantity supplied, and that it is for the quantity evacuated
that the liability of the Appellant to pay arises. It was the
case of the Appellant that in the course of the evacuation
exercise, it was 5,321,113 liters of LPFO that was
evacuated and that they addressed a letter dated 12th of
November 2008 notifying the Respondent of this fact and of
a shortfall of 1,053,995 liters; the letter was Exhibit N at
the trial.
Thus, one of the issues before the Lower Court was
whether the Appellant was liable to pay for 6,384,469 liters
of LPFO claimed by the Respondent or for 5,321,113liters
asserted by
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CA)
the Appellant. In resolving this issue, the Lower Court
stated in the judgment thus:
"...exhibit O dated 30/4/2008 is a letter of delivery
notification on LPFO supply into the Respondent's Kano
storage facility by the claimant which the Respondent by its
letter dated 27/5/2008 acknowledged the receipt and
confirmed to have been accepted by the company. The
letter is Exhibit F which reads:
'We will like to inform you about the result of the test of the
sample of oil supplied to our Kano storage tank. The oil was
confirmed to be within the range of our quality parameters
and the quantity from the dip result and the calibration
certificate provided 6,384,469 liters and it is what is being
confirmed to have been accepted by the company. The
difference can only be paid when we evacuate and
confirmed to be there.'
Exhibit K dated 12/8/2008 which is an addendum to Exhibit
A, the contract agreement between the parties dated
24/7/2007, also indicated therein that the supplier has
supplied 5,384,459 liters of LPFO to the purchaser's
storage tanks in Kano. Although DW1 under cross
examination denied that Exhibit K is a confirmation of
Exhibit F but this
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6) LP
ELR-40
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CA)
denial cannot be correct as both documents speak for
themselves and Exhibit K is signed by both parties. ...
Where the correspondence exchanged between the parties
are read together, it can be assumed that the parties have
come to an agreement. DWI under cross examination
admitted the figure of 6,384,469 liters as the quantity
supplied to Kano storage facility based on dipping as
reflected in Exhibit F. He also admitted that Exhibit K was
signed by both parties and in Exhibit K it is also reflected
therein that the supplier (claimant) has supplied 6,384,469
liters LPFO to the purchaser (Respondent) storage tanks in
Kano. Although the doctrine of estoppel by conduct is a
common law principle, it has been enacted into our body of
laws as Section 151 of the Evidence Act and provides
'when one person has by his declaration act or omission
intentionally causes or permitted another person to believe
a thing to be true and to act upon such belief neither he nor
his representative in interest shall be allowed in any
proceedings between himself and such person or such
person's representative interest to deny the truth of that
thing.'
By Exhibit F and K the
51
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ELR-40
196(
CA)
Respondents have acknowledged the supply of 6,384,469
liters of LPFO at their Kano storage tanks by the claimant.
Exhibit F is specific that the quantity supplied from the dip
result is 5,384,469 liters. Exhibit F emanated from the
Respondent and Exhibit K is signed by both parties, the
parties are therefore bound by the agreement in Exhibit K
and the Respondent by its conduct cannot disclaim its act.
... The denial of the Respondent as to the quantity supplied
by the claimant to their Kano storage tanks will not hold.
This is because oral evidence cannot change the content of
a document. ...
... The Respondent also contended that by Exhibit N the
claimant was notified on the shortage of LPFO supplied of
Kano storage. Exhibit N emanated from the Respondent
and it is dated 12/11/2008 addressed to the claimant.
Paragraph 2 of Exhibit N reads 'Meanwhile we evacuated
5,321,113 liters as against the 6,375,108 liters that was
supposed to be in the tank, which indicates a shortage of
1,053,995 liters.' It must be pointed out that the shortage
complained of by the Respondent in Exhibit N dated
12/11/2009 is in respect of supply of 6,375,108 liters to
Kano storage
52
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ELR-40
196(
CA)
tank and not in respect of supply of 6,384,459 literswhich is in contention...." (See pages 554 to 557 of therecords)
The relationship between the parties in this suit wasgoverned by contracts reduced into writing. It is settledlaw that parties are bound by the contract theyvoluntarily enter into and cannot act outside the termsand conditions contained in the contract and neither ofthe parties to a contract can alter or read into a writtenagreement a term which is not embodied in it - AfricanInternational Bank Ltd v. Integrated DimensionalSystem Ltd (2012) 17 NWLR (Pt.1328) 1, Lagos StateGovernment v. Toluwase (2013) 1 NWLR (Pt.1336)555. A Court too must treat as sacrosanct the terms ofan agreement freely entered into by the parties asparties to a contract enjoy their freedom to contract ontheir own terms so long as same is lawful and if anyquestion should arise with regard to the contract, theterms in any document which constitute the contract arethe invariable guide to its interpretation. It is not thebusiness of the Court to rewrite a contract for theparties and it should thus not add to or subtract from orimport any provision into
53
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the contract - Omega Bank (Nig) Plc v. O.B.C. Ltd(2005) 8 NWLR (Pt.928) 547, BFI Group Corporationv. Bureau of Public Enterprises (2012) 18 NWLR(Pt.1332) 209, Daspan v. Mangu Local GovernmentCouncil (2013) 2 NWLR (Pt.1338) 203, Afrilec Ltdv. Lee (2013) 6 NWLR (Pt.1349) 1.
The original contract between the parties wasconstituted in the document dated the 24th of July 2007,Exhibit A. The Respondent was described as theSupplier and the Appellant as Purchaser in the contractand Clause 5 of Exhibit A stipulated the mode fordetermining quantity of LPFO for which the Appellantwas liable to pay for and it reads thus:"Quantity determination: As per Purchaser's dipmeasurement/weighbridge at Purchaser's storage tanksas per chart certificates of individual tanker trucks. Allcompartments of any tanker shall be sealed properly bySupplier."
Clause 7 of Exhibit A dealt with payment and it statedthat payment was to be done two weeks after deliveryand confirmation by Ashaka Personnel. The Respondentdid supply LPFO into the storage tanks of the Appellantin Kano and it wrote letter dated 30th of April, 2008,Exhibit O, to the Appellant to
54
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ELR-40
196(
CA)
send its personnel to go and determine and confirm the
quantity supplied. The Appellant did send its personnel to
determine and confirm the quantity and the Store Manager
of the Appellant wrote two documents on the outcome of
the exercise. The first was a report captioned "Inspection
Report On Kano LPFO Storage Tank" which was attached
to an email dated 12th of May, 2008 and both of which
were tendered as Exhibit L and the second was a letter
dated the 27th of May, 2008, Exhibit F. The report in
Exhibit L read, in part, thus:
"Following the notification of Asharul Mubashirun
Investment Limited via their letter dated 30th April, 2008
with a subject DELIVERY NOTIFICATION ON LPFO
SUPPLY and the subsequent management approval and
Constitution of a committee of three made up of safety,
laboratory and stores manager. We had carried out a joint
inspection at the tank site Sharada Kano.
We have three tanks where fuels were stored. The tanks
were labeled 3, 5 and 7. There are additional three tanks
within the compound. The tanks were calibrated last by
MEMAK Calibrations Services Ltd ... The tanks maximum
capacities by the calibration are:
TANK 3 Height
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CA)
11.1m 1,588,410litres
TANK 6 Height 13.6m 2,502,400litres
TANK 7 Height 13.5m 2,516,000litres
The dipping of the tanks was carried out with the aim of
determining the content of LPFO stored in each tank. The
following were the result of the dips:
TANK 3 Height 11.02m 1,572,669litres
TANK 6 Height 13.00m 2,392,000litres
TANK 7 Height 13.08m 2,419,800litres
The total volume of oil found in the tanks based on the dips
as read from the calibration certificate is 6,384,459 litres.
The supplier was said to have delivered 6,500,000 litres.
There may be a dipping error, but I strongly recommend
when it comes to payment we should pay only what was
confirmed through the dip, the balance of the quantity
should be paid when we transfer to site. ..."
The letter Exhibit F read thus:
"RE: DELIVERY OF 6.5M LITRES OF LPFO AT KANO
We will like to inform you about the result of the test of the
sample of oil supplied to our Kano storage tank. The oil was
confirmed to be within the range of our quality parameters
and the quantity from the dip result and the calibration
certificate provided 6,384,469liters and it is what is being
56
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6) LP
ELR-40
196(
CA)
confirmed to have been accepted by the company. The
difference can only be paid when we evacuate and
confirmed to be there."
Counsel to the Appellant submitted that the Lower Court
ought not to have relied on Exhibit L because the email was
unsigned. This argument, with respect, cannot hold water
in the circumstances of this case because the Purchasing
Manager of the Appellant at the time, Dahiru Alhassan, one
of the addressees on the email and who testified as the
witness of the Appellant, confirmed, under cross
examination, the origin and authenticity of the email and of
the attachment to it. He stated:
"... Exhibit L is dated 12/5/2008. Exhibit L was copied to me
and in the figures in the attachment of Exhibit L 6,384,469
liters according to dipping. I agree that Exhibit L is
confirming Exhibit F. ..." (See page 70 of the records)
Counsel to the Appellant again submitted that Exhibit F did
not constitute an admission because it stated that the
liability of the Appellant was dependent on the quantity of
LPFO evacuated from the storage tank. Counsel predicated
his submission on the last sentence in Exhibit F that "The
difference can only be
57
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ELR-40
196(
CA)
paid when we evacuate and confirmed to be there." Now, it
is settled that in interpreting a document, the document
must be read as a whole, and not parts in isolation, and that
the different parts of the document must be interpreted in
the light of the whole document and an effort must be made
to achieve harmony amongst its different parts - Unilife
Development Co Ltd v. Adeshigbin (2001) 2 SCNJ 116,
Mbani v. Bosi (2006) 11 NWLR (Pt.991) 400, Adetoun
Oladefi Nig. Ltd v. Nigerian Breweries Plc (2007) 1
SCNJ 375, Agbareh v. Mimra (2008) 2 NWLR (Pt.1071)
378, Nigerian Army Vs Aminu-Kano (2010) 5 NWLR
(Pt.1188) 429. This principle also applies where the
document is part of a series of documents on the same
transaction. A holistic reading of Exhibit F, and along with
the contents of Exhibit L, shows, with respect, that Counsel
was only trying to be clever by half. It is obvious from the
two documents that the Respondent apparently claimed
that it supplied 6.5 Million liters of LPFO and what Exhibits
L and F explain is that the staff of the Appellant only
confirmed receipt and acceptance of 6,384,469 liters by the
agreed dipping method and it was the difference
58
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196(
CA)
between the two figures the documents said can only be
paid for when the LPFO is evacuated and it is shown to be
6.5 Million liters.
The two documents, Exhibit L and F, were an unequivocal
admission by the Appellant that the quantity of the LPFO
determined and confirmed in accordance with the method
agreed by the parties in Exhibit A and for which it was
liable to pay the Respondent was 6,384,469 liters. This was
as at the 27th of May, 2008, the date of Exhibit F, and by
clause 7 of Exhibit A payment for the said 6,384,469 liters
of LPFO was due from the Appellant to the Respondent on
or before the 12th of June, 2008.
Exhibit K the LPFO Supply Agreement which the Appellant
predicated its case on, was made on the 12th of August
2008, about two months after the right of the Respondent
to the payment for the 6,384,469 liters of LPFO had
crystallized. The document was described as an addendum
to Exhibit A and it has two parts – the recital and the
operative part. A recital is defined as a preliminary
statement in a contract or deed explaining the reasons for
entering into it, or the background of the transaction, or
showing the existence of
59
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particular facts - Suu v. Jobak Nigeria Ltd (2012)LPELR-CA/IL/76/2010. It is usually preceded by the word"whereas". It is settled that where a recital contains astatement of the existence of a fact, it constitutes anestoppel and the party or parties who made thestatement in the recital are not allowed to denysubsequently the existence of that fact - Oyefesov. University College Hospital Board ofManagement (1930) NCLR 94 at 103, Ejiginiv. Ezenwa (2003) 16 NWLR (Pt.846) 420. One of thestatements contained in the recital of Exhibit K is "TheSupplier has supplied 6,384,469 liters of LPFO toPurchaser's storage tanks at Kano." The Respondent wasthe person described as the Supplier in the documentand the Appellant was the person described as thePurchaser. Thus, this statement constitutes an admissionon the part of the Appellant that the quantity of LPFOsupplied and for which it was liable was 6,384,469 litersand it cannot be allowed to subsequently deny same.
Counsel to the Appellant predicated his case on theterms contained in the operative part of Exhibit K. Aread through these operative terms show that theyamounted to variation of the
60
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terms of the original contract, Exhibit A, as they sought to
alter some the existing terms of Exhibit A and to add some
additional terms. Variation of contract involves a definite
alteration of contractual obligations by the mutual
agreement of both parties. Variation is analogous to the
entry by the parties into a new contract. The requirements
of offer, acceptance and consideration are thus imposed. In
Goss v. Lord Nugent 110 ER 713 at 716, the Court stated:
"By the general rules of the common law…it is competent
to the parties at any time before breach of it, by a new
contract not in writing, either altogether to waive, dissolve,
or annul the former agreements, or in any manner add to,
subtract from or vary or qualify the terms of it and thus
make a contract..."
For a variation to be effective, there must be a valid and
subsisting contract on foot between the parties; there must
be some form of consensus between the parties as to the
obligations which are to be altered; and it must be
supported by consideration - Oriloye v. Lagos State
Government (2014) LPELR-CA/L/839 /2007, Unity Bank
Plc v. Olatunji (2014) LPELR-CA/K/300/2012. A mutual
61
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abandonment of the existing rights of the parties under the
agreement between them is sufficient consideration to
support a variation of the agreement - Ekwunife v. Wayne
(WA) Ltd (1989) 5 NWLR (Pt.122) 422 and Prospect
Textile Mills Ltd v. Imperial Chemical Industries Plc
England (1996) 6 NNLR (Pt.457) 668. Also, consideration
will be said to have been provided where a party would
derive a superadded benefit from the contract by reason of
the variation - Williams v. Roffrey Bros & Nicholas
(Contractors) Ltd (1991) 1 QB 1. However, where the
agreement is made exclusively for the benefit of only one
party, or where, although it is capable of benefiting both
parties, the agreement is actually made for the benefit of
one alone, it will not be effective to vary the original
contract since no consideration was present - Vanbergen
v. St Edmund's Properties Ltd (1933) 213 223. Also,
where one party has fully performed his side of the contract
and the other party's performance has fallen due, no
variation can be effective unless it imposes new obligation
on the latter. An undertaking to perform an existing
obligation does not amount to consideration to make the
62
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196(
CA)
variation of a contract effective.
As stated earlier, the Respondent had performed its side of
the contract by supplying 6,384,469 liters of LPFO into the
Kano Storage tanks of the Appellant and the obligation of
the Appellant to pay therefor crystallized on or about the
12th of June, 2008, two months before the making of
Exhibit K. Reading through the contents of the operative
part of Exhibit K, it is obvious that it was made for the
benefit of the Appellant. It did not impose any new
obligation on the Appellant. It did not even insist on the
performance of the existing obligation of the Appellant to
pay for the 6,384,469 liters of LPFO supplied by the
Respondent. It rather diluted the performance of the
obligation by changing the way and basis upon which the
Appellant was to make the payments, which were already
overdue. It thereby watered down the benefits of the
Respondent under the existing contract. The terms in the
operative part of Exhibit K could thus not have been
effective to vary the terms of the original contract, since
there was no consideration present therein. The huffing
and puffing done by the Counsel to the Appellant on the
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strength of these operative parts of Exhibit K thus went to
no issue. The contents of Exhibit N upon which the
Appellant based the bulk of his case, being a document
issued on the basis of the operative terms of Exhibit K,
cannot serve any useful purpose in this matter.
It is clear from the terms of agreement in Exhibit A and
from the contents of Exhibit L, F and the recital part of
Exhibit K that it was the 6,384,469 liters of LPFO supplied
by the Respondent into the storage tanks of the Appellant
that was confirmed and accepted by the Appellant as the
quantity delivered to it and for which it was liable to pay.
The pleadings and the evidence before Lower Court
supported the finding of the Lower Court on the issue. This
issue for determination is resolved also against the
Appellant.
Issue Four
The fourth issue for determination is whether, based on the
oral and documentary evidence led by the parties, the
Lower Court was correct in holding that the initial agreed
price per liter, N59.50, was subsequently reviewed by the
parties, and, if so, that the review was to the price of
N69.50 and not N75.00. This issue, apart from arising from
some
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of the complaints of the Appellant in this appeal, is also the
issue arising on the cross-appeal. Thus, a resolution of the
issue should resolve the cross-appeal as well.
It must be pointed out that Counsel to the parties agreed in
their briefs of arguments "that the finding that there was a
price review to N69.50 for the Kano Storage is perverse as
it was contrary to the pleadings and evidence of the
parties." The case of the Appellant was that there was no
price review from the N59.50k per liter agreed in the
original contract for supply to the Kano Storage facility
while the case of the Respondent was that there was a
price review to N75.00 per liter for the supply to Kano
Storage facility. In arguing his case on this issue in this
appeal, Counsel to the Appellant referred to the pleadings
and evidence of the parties and stated that the transaction
between the parties was governed by Exhibits A and K and
that by Clause 9 of Exhibit K no alteration or variation of
the terms shall be effective unless made in writing by both
parties and accepted by the authorized signatories of both
parties and that there was nothing presented before the
Lower Court
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showing the acceptance of the alleged price review by the
authorized signatories of the parties and that a Court
cannot bring into a contract extraneous terms not agreed
upon by the parties; he referred to the case of Kaydee
Ventures Ltd v. Minister FCT (2010) 7 NWLR (Pt.1192)
171.
Continuing on the issue in the cross respondent's brief of
argument, Counsel conceded that the Respondent pleaded
that it made a request for a price review and which request
was approved by the Appellant to a price of N75.00 and
that the Respondent led evidence thereon and tendered the
letters of request and approval as Exhibits M and E
respectively, but stated that the request of the Respondent
was for a review of the price for supply Kano Storage to
N69.50 per liter and for Ashaka Storage to N75.00 per liter
while the approval given was for a just price review of
N75.00 per liter without stating for which Storage facility
the increased figure was for. Counsel queried that why will
the Appellant approve N75.00 for supply to the Kano
Storage facility as against the N69.50 asked for and stated
that an examination of the contract documents shows that
the distinction had always
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been made between deliveries to Ashaka and deliveries to
Kano and for which there were price differentials and that
the silence of Exhibit E on what storage the approved price
review of N75.00 was for rendered the document vague
and it becomes an issue of interpretation to determine the
intention of the parties.
Counsel stated that in interpreting are document, it must
be considered along with the other documents on the
contract and on the issue, Exhibit A, K and particularly
Exhibit M and that in Exhibit K which was made
subsequent to Exhibit E the price mentioned for deliveries
to Kano was N65.50 and he again queried why will the
Appellant approve N75 per liter in February 2008 and
approve N65.50 in August of 2008. Counsel stated that the
onus was on the Respondent to prove the price it was
claiming the LPFO was supplied for per liter, and not on
the Appellant to disprove and that the weakness of the case
of the Appellant did not help the Respondent, and that the
Respondent failed to lead credible evidence to prove its
case and that the issue for determination must thus be
resolved in favour of the Appellant/cross respondent and he
referred to the cases
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of Obajimi v. Adedeji (2008) 3 NWLR (Pt.1073) 1 and
Ahmed v. CBN (2013) 2 NWLR (Pt.1339) 524.
In response, Counsel to the Respondent referred to the
pleadings of the parties and stated that while the case of
the Respondent was that the price for the supply of the
LPFO to Ashaka Storage facility and the Kano Storage
facility, both of the Appellants, was reviewed to N75.00 per
liter flat and that it was the case of the Appellant that the
price review did not include supply to the Kano Storage
facility and that the supply to that facility was at the
original contract price of N59.50 per liter. Counsel stated
that in proving its case before the Lower Court, the
Respondent tendered the letter of approval of the
increment, Exhibit E, and the Appellant tendered the letter
by which the request for increment was made, Exhibit M,
and that the content of Exhibit E was clear and
unambiguous and it stated a price increase for the supply
of LPFO to N75.00 per liter without differentiating whether
the supply was to Ashaka or to Kano and that the testimony
of the defence witness that the price review was not for
supplies to Kano cannot be allowed to alter the clear
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contents of Exhibit E and he referred to the cases of Baliol
(Nig) Ltd v.Navcon (Nig) Ltd (2010) 16 NWLR (Pt.1220)
619 and UBN v. Ozigi (1994) 3 NWLR (Pt.333) 385.
Counsel urged this Court to resolve this issue for
determination in favour of the Respondent/cross appellant
and to grant the cross-appeal on that basis.
In dealing with the issue of price and price review, the
Lower Court stated in the judgment thus:
"The DW1 in his testimony deposed that the LPFO supplied
by the claimant to the Respondent's storage tanks in Kano
does not amount to N478,835,175 because there was no
variation of pricing in respect of delivery to Kano storage
tanks. Exhibit M which is the letter from the claimant to the
Respondent requesting for price review clearly stated the
reviewed amount as N69.50 per liter for delivery to Kano
storage and N75 per liter for delivery to Ashaka Storage. In
its reply Exhibit E the Respondent approved the price
review of N75 per liter but was silent on the price review
for Kano storage at N69.50k per liter. However, the
Respondent by its conduct in Exhibits F, K and L accepted
the delivery of 6,384,459 liters based on the dips as
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read from the calibration certificate Exhibit M the request
for price review of N69.50 per liter for delivery to Kano
storage and N75 per liter for delivery to Ashaka storage is
dated 27/2/2008 while Exhibit L the email is dated
12/5/2008, Exhibit F is dated 27/5/2008 and Exhibit K is
dated 12/8/2008. By Exhibit F, K and L the Respondent is
presumed to have accepted the price review of Kano
Storage at N59.50 per liter. ..." (see pages 557 to 558 of
the records)
Reading through the pleadings of the parties before the
Lower Court, neither of them pleaded or made a case for
the sum of N69.50 per liter as the price review for delivery
of LPFO to the Kano Storage facility of the Appellant by the
Respondent. The case of the Respondent was that the price
for the supply of the LPFO to Ashaka Storage facility and
the Kano Storage facility, both of the Appellant, was
reviewed to N75.00 per liter flat and it was the case of the
Appellant that the price review did not include supply to
the Kano Storage facility and that the supply to that facility
was at the original contract price of N59.50 per liter.
Neither of the witnesses that testified before the Lower
Court
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gave evidence of a price review to N69.50 per liter. It is
correct that in Exhibit M, the Respondent proposed a price
review of N69.50 per liter for the supply to Kano but there
was no evidence from either party that this was the sum
accepted by the Appellant. Exhibit F and L said nothing
about the price at which the supply of LPFO to the Kano
storage tank of the Appellant was made by the Respondent
while Exhibit K mentioned a price of N65.50 per liter, so
none of these Exhibits supported the price of N69.50 per
liter. The above finding of the Lower Court on a price
review to N69.50 per liter had no foundation either in the
pleadings or in the evidence led by the parties. It is thus
perverse and must be set aside - Nobis-Elendu
v. Independent National Electoral Commission (2015)
16 NWLR (Pt.1485) 197.
As stated at the outset of the deliberations in this appeal, it
was not in contest between the parties that, sequel to the
making of Exhibit A, which gave the Respondent six weeks
to supply the agreed LPFO, the Respondent wrote letters at
different times requesting for extension of the six weeks
supply period and the Appellant conceded the requests and
the
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letters of the Appellant dated the 26th of July, 2007, 24th of
October 2007 and dated 7th of February, 2008 consenting
to the Respondent's requests for extension were Exhibits B,
C and D. It was also not in contest that due to an increment
in the price of the product, the Respondent wrote a letter
dated the 27th of February, 2008 requesting for a price
review and it proposed the price of N69.50 pet liter for
supplies to Kano and N75.00 per liter for supplies to
Ashaka and that by a letter dated the 28th of February
2008, the Respondent approved a price increase to the sum
of N75.00 per liter; the letter requesting for price review
and that approving the review were Exhibits M and E
respectively at the trial. The contest in the matter was the
interpretation to be placed on the contents of Exhibit M
and E.
Exhibit M read thus:
"REQUEST FOR PRICE REVIEW
RE: LPFO SUPPLY (10,000 MT)
In regards to the above subject matter, we wish to request
for price review for the supply of LPFO, amounting to
N69.50 per liter for delivery to Kano Storage and N75 per
liter for delivery to Ashaka storage, all inclusive of 5%
withholding tax.
This
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request was due to market dynamics, such as price hikeof the product, increase in the cost of transportation as aresult of artificial scarcity and high cost of diesel. We anticipate your favourable response in good time forthe successful consummation of the transaction...."Exhibit E, the response, read thus:"RE: REQUEST FOR PRICE REVIEW FOR 10,000MT ofLPFOFurther to your request dated 27th of February, 2008 onthe above subject, management has approved therequest to increase price of LPFO to N75 per liter.Kindly expedite action to start delivering."
Now, it is an elementary principle of interpretation ofdocuments that where the language used by parties incouching the terms or provisions of a document areclear and unambiguous, the Court must give theoperative words in the document their simple, ordinaryand actual grammatical meaning - Union Bank ofNigeria Plc v. Ozigi (1994) 3 NWLR (Pt 333) 385,Isulight (Nig) Ltd v. Jackson (2005) 11 NWLR (Pt 937)631, Egwunewu v. Egeagwu (2007) 6 NWLR (Pt 1031)431. Applying this principle to the above reproducedcontents of Exhibits M and E, what the words thereinconvey is that
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while the Respondent requested for a differential review of
the prices for supplies to Kano Storage and Ashaka Storage
of the Appellant, the Management of the Appellant
approved a one price review of N75 per liter for all the
supplies of the LPFO.
The Appellant did not deny authoring the Exhibit E and the
onus was on it to prove that the wordings of the document
were meant to convey another meaning other than their
actual grammatical meaning. The document was signed by
one Bello Mohammed, the Purchasing Manager of the
Appellant at the time, and he was not called by the
Appellant to give evidence on what meaning, apart from
their actual grammatical meaning, the words he wrote
were meant to convey and no explanation was given by the
Appellant for his absence. It is clear that the letter
conveyed the approval of the Management of the Appellant
and no one in the Management of the Appellant at that time
was called to testify on whether what the letter conveyed
was not what was actually approved by the Management.
The sole witness of the Appellant was Danladi Alhassan, its
current Purchasing Manager, and he made no reference to
Exhibit E and said nothing about
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its import. All he said in his written deposition on price
variation was that the cost of the total supply made by the
Respondent to the tanks of the Appellant in Kano did not
amount to the figure claimed by the Respondent "because
there was no variation of pricing in respect of delivery to
Kano storage tanks." The Appellant thus led no cogent
evidence to show that the contents of Exhibit E meant
otherwise than their actual grammatical meaning. Exhibit K
referred to by the Counsel to the Appellant came into effect
on the 12th of August 2008, almost six months after Exhibit
E and it cannot thus be useful in deducing what the words
in Exhibit E conveyed at the time it was written.
What Counsel to the Appellant did in his briefs of
arguments was to pose queries such as, why will the
Appellant approve N75.00 for supply to the Kano Storage
facility as against the N69.50 asked for? And why will the
Appellant approve N75 per liter in February 2008 and
approve N65.50 in August of 2008? It is not the duty of this
Court to answer such queries as to do so will be taking this
Court into the realm of speculations, of speculations, an act
that is a taboo for this Court
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to do. It is evident that from the pleadings of the parties
and from the evidence led, that there was an agreement
between the parties to review the price of supply of the
LPFO contained in the original contract, Exhibit A" and the
review was from the price of N59.50 per liter for supply to
the Kano Storage facility and N65.00 per liter for the
supply to Ashaka Storage facility to a flat rate of N75.00
per liter for all supplies. This issue for determination is also
resolved against the Appellant who is the cross respondent
in the cross-appeal.
With these findings by this Court, it means that the
Respondent was entitled to be paid by the Appellant for the
supply of 6,384,469 liters of LPFO made to its Kano
Storage tanks at the price of N75 per liter. The defence
witness stated under cross-examination that he was a
Chartered Accountant by training and profession and that if
one multiplied 6,384,469 liters by N75.00 it would give
N478,835,175.00 and that if the sum of N352,058,160.60k
already paid to the Respondent was subtracted from this
figure, it would leave a balance of N126,777,01.5.00. This
is the amount that is outstanding in favour of the
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Respondent. The Lower Court was thus in error when it
awarded the sum of N91,662,435.44k as the outstanding
balance due to the Respondent and this award is liable to
be se t as ide and rep laced w i th the award o f
N1,26,777,015.00.
In conclusion, the appeal of the Appellant fails and it is
hereby dismissed while the cross appeal of the Respondent
succeeds and it is hereby allowed. The judgment of the
High Court of Kano State in Suit No K/517 /2012 delivered
by Honorable Justice Tani Yusuf Hassan on the 26th of
September,2013 is hereby affirmed in part. The portions of
the judgment asserting the price at which the Respondent
supplied LPFO to the Appellant as N69.50 per liter and
awarding the sum of N91,662,435.44k to the Respondent
as the outstanding balance due from the Appellant are
hereby set aside and in their place are inserted the price of
N75 per liter and an award in the sum of N126,777,015.00
as the outstanding balance due. For the avoidance of doubt,
judgment in this appeal is hereby entered as follows:
i. It is hereby declared that the Respondent successfully
supplied the Appellant with 6,384,469 liters of Low Pour
Fuel Oil (LPFO) into its
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(Appellant's) Kano Storage facility or tanks at the price of
N75 per liter.
ii. It is hereby declared that the Appellant paid the
Respondent the sum of N352,058,160.60 out of a total, sum
of N478,835,175.00 leaving a balance of N126,777,014.37
unpaid to the Respondent.
iii. It is hereby declared that the Respondent is entitled to
payment of the outstanding N126,777,014.37 from the
Appellant being the outstanding balance due on the LPFO
supplied to the Appellant.
iv. The Appellant is hereby directed to pay to the
Respondent the sum of N126,777,014.37 being the
outstanding balance due for 6,384,469 liters of Low Pour
Fuel oil (LPFO) the Respondent supplied to the Appellant
into its Kano storage facility or tanks.
v. The Respondent is awarded 10% per annum as interest
on the judgment sum from the date of judgment was
entered in the Lower Court, 26th of September 2013, until
the entire judgment sum is paid or liquidated.
vi. The Respondent is awarded cost of the action in the
Lower Court in the sum of N60,882.00 being the cost of
filing the suit.
The Respondent is awarded the costs of this appeal and of
the cross appeal assessed at
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N100,000.00. These shall be the orders of this Court.
UWANI MUSA ABBA AJI, J.C.A.: I have read in draft the
lead judgment of my learned brother, Habeeb O. A. Abiru,
JCA, just delivered.
I agree with the reasoning and conclusions of my learned
brother that the appeal fails and it is hereby dismissed. The
Cross Appeal of the Respondent succeeds and it is hereby
allowed. The judgment of the Lower Court of Kano State in
Suit No. K/517/2012 delivered on the 26th of September,
2013 is hereby affirmed in part. The portions of the
judgment asserting the price at which the Respondent
supplied LPFO to the Appellant as N69.50 per liter and
awarding the sum of N91,662,435.44k to the Respondent
as the outstanding balance due from the Appellant are
hereby set aside and in their place is inserted the price of
N75 per liter and an award in the sum of N126,777,015.00
as the outstanding balance due.
I also abide by the consequential order as to costs.
AMINA AUDI WAMBAI, J.C.A.: I have had the advantage
of reading before now, the lead Judgment delivered by my
learned brother, Habeeb Adewale Olumuyiwa
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Abiru, JCA. My learned brother has fully and admirably
dealt with the issue in this appeal. I entirely agree with his
exposition of the Law and I endorse same as mine as well
as the conclusions therein reached. I, too, dismiss the
appeal as lacking in merit and abide the Order as to costs
made in the lead Judgment.
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