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Ashakacem Plc V. Asharatul Mubashshurun Investment Limited (2019) LLJR-SC

Ashakacem Plc V. Asharatul Mubashshurun Investment Limited (2019)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

This is an appeal against the decision of the Court of Appeal, Kaduna Division or Court below or Lower Court delivered on 28/1/2016 Coram: Umani Musa Abba-Aji, Habeeb Adewale Abiru and Amina Audu Wambai JJCA. The Court below dismissed the appellant’s appeals (Interlocutory and Substantive) and allowed the respondent’s cross-appeal in which the Court below held the appellant indebted to the respondent in the sum of N126,777.015.00 as against the sum of N91,662,435.44K awarded in favour of the respondent by the trial Court presided over by Tani Yusuf Hassan J.

On the 13th day of November, 2018, the date of hearing, learned counsel for the appellant, Prof Taiwo Osipitan SAN adopted the brief of argument filed on 17/5/16 and a reply brief filed on 13/4/17.

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

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and which Low Pour Foul 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 65.00 while that for Kano would be 59.50 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. That the contract document was executed by the representatives of the parties and that due to exigent circumstances, the respondent applied three times for extension of delivery period and that the extension was granted and acceded to by the appellant.

That in the course of the supply, the price of the product rose and it became impossible for the respondent to continue the supply at the price agreed per liter and he wrote to the appellant requesting for a price review and that the appellant approved the request and a price of N75.00 per liter of Low Pour Fuel Oil (LPFO) was agreed. The review price of N75.00 per liter agreed by the parties was a flat rate for all supplies to Kano and Ashaka storage facilities and that the allegation of a shortfall of 1.05 Million

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liters of LPFO was non-existent and was introduced by the appellant to bring confusion.

The respondent supplied the product into the appellant’s Kano storage facility and sent a delivery notification to the appellant where its Stores manager wrote via email that it supplied a total of 6,384,469 liters of LPFO into the Kano Storage tanks of the appellant and this was subsequently confirmed by a hard copy of a report on the quantity of LPFO reaffirming that 6,384,469 liters of Low Pour Fuel Oil (LPFO) was supplied into its Kano Storage tank and the appellant 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.

That total price of the product supplied was N478,835,175.00 and out of which the appellant paid N352,058,160.6 leaving a balance of N126,777.014.37 which the appellant has failed to pay despite repeated demands. That all the subsequent liters 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

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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 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.

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. The appellant 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 Representatives of the parties and also that due to exigent circumstances,

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the Representatives 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 only affected delivery to Ashaka.

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 Kanci Storage tanks and ‘requested it to send its officials and that dipping was carried out to determine the content of the product in each of the storage tanks and examination indicated that 6,375,108 liters of LPFO was supplied. It was its case that it was no longer indebted to the respondent on the contract.

That 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. By the records, the letter dated 2nd of March, 2009 which the appellant sought to tender was rejected, same having been made in the process of settlement of the dispute between the parties. The records also show that after the appellant had closed its defence and the matter was adjourned for adoption of

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of written addresses, the appellant filed an application seeking to re-open its case to lead further evidence and the trial Court took arguments on the application and dismissed same in a considered ruling. At the conclusion of the trial and after final written addresses by the parties, the trial 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 N75.00 per liter claimed by the respondent and thus entered judgment in favour of the respondent in the sum of N91,662,435.44 together with interest at the rate of 10% from the 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 of the trial Court against which the appellant filed two notices of appeal – (i) notice of appeal dated the 24th of January, 2014 and which was filed with leave of the Lower Court, containing three grounds of

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appeal and it was against the two Rulings of the trial 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 dated the 3rd of October, 2013 containing seven grounds of appeal and directed against the final judgment of the trial Court. On its part, the respondent filed a notice of cross appeal dated 23rd of December, 2013 against the final judgment of the trial Court and it contained two grounds of appeal. The appellant’s appeal was dismissed by the Lower Court and the respondent cross-appeal was upheld. Dissatisfied, the appellant appealed to this Court against the concurrent findings of the two lower Courts.

The appellant identified four issues for determination which are as follows:-

i. Whether learned Justices of the Court of Appeal were right or wrong on the interpretation placed on Exhibits E and M and in arriving at the conclusion that parties had agreed to vary the price of supplies of LPF0 to Kano from N59.50 to N75.00 per litre.

ii. Were the learned Justices of the Court of Appeal right or wrong in their decision that the learned

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trial Judge rightly rejected the respondent’s letter dated 2nd March, 2009 in evidence on the ground that the said letter is privileged

iii. Whether the learned Justices of the Court of Appeal rightly or wrongly endorsed the admissibility of Exhibit L and the attached internal memorandum of the appellant notwithstanding non-compliance with the mandatory conditions in Section 84 (1) of the Evidence Act on admissibility of electronic mail/evidence and the non-signing of attached internal memorandum.

iv. Were the learned Justices of the Court of Appeal right or wrong in the circumstances in the selective interpretation of the preamble and main part of Exhibit K in the determination of quantity of LPFO supplied to appellant’s Kano tank

The respondent formulated four issues for determination which are thus:-

  1. Whether the Lower Court was right when it held that the LPFO supplied by the respondent to the appellant was at the rate of N75.00 per litre.
  2. Whether the Lower Court was right in affirming the decision of the trial Court in declaring the letter dated 2nd of March, 2009 tendered by the appellant inadmissible.
  3. Whether based on the grounds of appeal and issues

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for determination before the Lower Court, the Court was right in not disturbing the admission of Exhibit L in evidence by the trial Court and whether this Court should disturb the said admission made by the trial Court.

  1. Whether the Lower Court was right in affirming the findings of the trial Court that the respondent had supplied 6,384,469 liters of LPFO to the appellant.

I shall make use of the issues as crafted by the appellant for ease of reference.

ISSUE 1:

Whether the learned justices of the Court of Appeal were right or wrong on the interpretation placed on Exhibits E and M and in arriving at the occasion that parties had agreed to vary the price of supplies of PLFO to Kano from N59.50 to N75.00 per litre.

Learned counsel for the appellant, Prof Osipitan SAN contended that the appellant is precluded by the trite principles of law as embraced by judicial authorities that where a contract has been reduced into writing oral evidence is inadmissible to add or vary the agreement/contract. He cited Section 128 (1) of the Evidence Act; Ezenwa v K.S.H.S.M.B. (2011) 9 NWLR (Pt.1251) 89 at 118; Bongo v Governor Adamawa State

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(2013) 2 NWLR (Pt.1339) 403 at 444; Uzamere v Urhoghide (2011) All FWLR (Pt.558) 839; Basil v Fajebe (2001) SCNJ 257 at 285-286.

See also  Bode Thomas V Fjsc (2016) LLJR-SC

That it is trite that a document speaks for itself with the result that parties cannot give evidence contrary to its content. He stated that appellant had no burden of proof to discharge on the interpretation of contractual documents as the interpretation of documents is that of the Court and this duty is performed without the aid of oral evidence. He relied on Ezenwa v K. S.H.S.M.B. (2011) 9 NWLR (Pt.1251) 89 at 118.

Learned Senior Advocate for the appellant stated that there was no consensus on the price increase for Kano supplies whereas Exhibit M contains a request for N69.50 per litre and the reply Exhibit E is silent on the request and so the Court of Appeal ought not to have upheld the claim of N75.00 per litre. That the decision of the Court of Appeal on the award of #126,777,014.37 ignored the agreement of the parties that the contract sum is subject to the deduction of 5% withholding tax which was not taken into account by the Court in arriving at the figure of #126,777,014.37.

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Learned counsel for the respondent, Usman Umar Fari Esq. contended that based on the pleadings and evidence before the trial Court the price was reviewed to N75.00 per litre to both Kano and Ashaka storage facilities. That the respondent was not cross-examined on the pieces of evidence before the trial Court and so there is a presupposition that the appellant had accepted the respondent’s testimony on this point. He cited Gaji v Paye (2003) 8 NWLR (Pt.823) 583.

He stated on that issues pertaining to offer and acceptance on the point were not among the issues pronounced upon by the Lower Court and no leave of this Court was sought and obtained before raising the issue herein and so arguments on the point should be discountenanced and if left as validly raised there is acceptance of Exhibit E from the part of appellant as an offer can be accepted impliedly or by conduct. He cited Okubule v Oyagbola (1990) 4 NWLR (Pt.147) 723 etc.

The question on this Issue one is, whether the Court of Appeal was right to hold that by virtue of Exhibits E and M, the parties had agreed to vary the price of the LPFO supplied by the respondent to Kano storage tank from

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N59.50 per litre to P475.00 per litre.

Stated differently, whether the Court below was correct or not in their decision allowing the cross-appeal setting aside the award of N91,662,435.44 made by the trial Court and replacing same with the award of N126,777,014.37 on the ground that the parties had mutually varied the contract price from N59.50 to #75.00 per litre for supplies to LPFO the appellant’s Kano storage.

It is interesting that both appellant and the respondent appealed against the trial Court’s decision on the price variation. While the appellant maintained that there was no agreement for upward review of the prices of LPFO supplied to appellant’s Kano storage tank, the respondent insisted that contrary to the trial Court’s decision for an upward review to N69.50 per litre the proper reviewed price should be N75.00 per litre.

The Court of Appeal agreed with the position taken by the respondent/cross appeal on that point. Again of note is that the trial Court and the Court below each reached its decision on their interpretation of Exhibits M and E, the relationship between Exhibit M and E being the basis of

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the differing decisions.

I shall quote for effect the exact words of the Court below at pages 1091-1092 and page 1093 of the Record wherein Abiru JCA who delivered the lead judgment stated thus:-

“Now it is an elementary principle of interpretation of documents that where the language used by parties in couching the terms or provisions of a document are clear and unambiguous the Court must give words in the document their simple ordinary and actual grammatical meaning.. Applying this principle to the above reproduced contents of Exhibits M and E, what the words therein convey is that 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 one price review of N75.00 per litre for all the supplies of the LPF0”.

Again at page 1093 of the record, the Court of Appeal per Abiru JCA held:

“It is evident from the pleadings of the parties and from the evidence led that there was an agreement between the parties to review the price supply of LPFO contained in the original contract Exhibit A and the review from the price of #65.00 per litre for the

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supply to Kano facility and to N65.00 per litre for the supply to Ashaka storage facility by a flat rate of N75.00 per litre for all supplies.

This issue for determination is also resolved against the appellant in the Cross-Appeal”.

At the Court of first instance the learned trial judge had held thus:

“By exhibits F, K and L, the respondent is presumed to have accepted the price review of Kano Storage at N69.50 per litre”.

The decision of the trial Court above stated was set aside by the Court of Appeal which replaced it with a decision on N75.00 per litre as the agreed contract price.

What is clear from the opposing positions of the trial Court and that of the Court of Appeal in their interpretation of the Exhibits M and E is that while the trial Court took the stance that the contracts having been reduced into writing no oral evidence can be led to add or vary it while the Court of Appeal had wanted parties to lead evidence to the meaning of Exhibit E.

For a fact the stance of the Court of Appeal runs counter to the statutory provisions on the matter and specifically. I refer to Section 128 (1) of the Evidence Act which provides

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as follows:-

Section 128 ( 1) of the Evidence Act:

“When a judgment of a Court or any other judicial or official proceeding contract grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceedings or terms of such contract, grant or disposition of property except the document itself or secondary evidence of its content in cases where secondary evidence is admissible under this Act; nor may the contents of any such document be contradicted, altered, added to override by oral evidence”.

In EZENWA v K.S.H.S.M.B. (2011) 9 NWLR (Pt.1251) 89 at 118 paras B-C.

“Where a case is fought on pleadings supported by documentary evidence, oral evidence should not be allowed to contradict the clear terms of the documents since the task before the Court is to interpret or construct the terms of the said exhibits”.

It is now trite in law that oral evidence is inadmissible either to add to or subtract from the contents of a document as a document speaks for itself with the result that parties cannot give evidence contrary to its contents.

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It follows therefore that no burden of proof rests on the appellant to discharge on the interpretation of contractual documents since the primary duty in interpretation of documents is placed squarely on the Court and the Court discharges that duty without the aid of oral evidence. The task is carried out by the Court within the case fought on pleadings supported by documentary evidence which precludes oral evidence beclouding or contradicting the clear terms of the documents. See Bongo v Governor Adamawa State (2013) 2 NWLR (Pt.1339) 403 at 444, Uzamere v Urhoghide (2011) All FWLR (Pt.558) 839; Ezenwa v K.S.H.S.M.B. (2011) 9 NWLR (Pt.1251) 89 at 118.

A facet appearing in the answer to the question herein raised is that the primary reliefs asked for by the respondent are declaration on the variation of the contract price and the validity of the contract and this brings into operation the fact that a party who claims declaratory reliefs has a duty to prove entitlement to the declaration unassisted by the weakness in the opponent’s case.

In this instance Exhibit M contains the respondent’s dual requests on upward review of the contract prices of LPFO

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supplied to the appellant’s Kano and Ashaka storage tanks. For LPFO supplied to Kano the respondent had requested for a review from N59.50 to N69.50 per litre. For supplies to Ashaka, the respondent offered to supply LPFO at N75.00 per litre as against the contract price of N65.00 per litre. Exhibit E is the reply to Exhibit M which is silent on the request for upward review of supplies. No evidence was adduced to show that appellant approved in writing the respondent’s request on the new contract price offer of N69.50 per litre or any other price for supplies to Kano storage tank.

The implication of what is on ground is that an offer of the upward review remained unaccepted and so it cannot be said that there was a valid contract in the absence of the unconditional or unqualified acceptance of an offer in order to have a valid contract on the offer to supply at N69.50 of LPFO. Also there was no offer to supply at N75.00 per litre.

On a scenario such as the present, I rely on the following cases on the need for there to be unqualified acceptance of an offer in order to have a valid contract.

(1) OMEGA BANK PLC v O.B. C. LTD (2005) 8 NWLR

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(Pt.928) 547 at 575 Para A.

“In order to decide whether the parties have reached an agreement, it is usual to inquire whether there has been a definite offer by one party and an unqualified acceptance of that offer by another.

It is the Law of contract that the letter of acceptance must unqualifiedly accept the particular offer”.

See also  A.G. Olisaemeka V. Securities And Exchange Commission (2005) LLJR-SC

(2) BEST (NIG.) LTD V BLACKWOOD HODGE (NIG.) LTD (2011) 5 NWLR (Pt.1239) 95 at 127 Para G. “An offer must be unconditionally and unqualifiedly accepted. Any addition to or subtraction from the terms of the offer is an alteration to the terms and amounts to a total rejection of the offer by the offeree”.

(3) NNEJI v ZAKHEM NIG. LTD (2006) 12 NWLR (Pt.994) 297 at 311 Para H.

“It is trite law that an offer must be accepted in order to crystallize into a contract”.

I agree with the appellant’s learned counsel that it is trite law that there are three essential ingredients of a valid contract, an offer, an unqualified acceptance of that offer and consideration.

(1) See SONA BREWERIES v SIR SHINA PETERS & ANOR (2005) 1 NWLR (Pt.908) 478 at 488 where it was held thus:-

“And before any contract or agreement can be said to

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come into existence, in law, there must be an unmistaken and precise offer and unconditional acceptance of the terms mutually agreed upon by the parties. In other words the parties to the agreement must be in consensus ad idem as regards the terms and conditions freely and voluntarily agreed upon by them. Both sides to the contract must be clear as to what the more fundamental term and crucial terms of the agreement connote before the agreement can be said to come into legal effect”.

Exhibit E which allegedly fixed N75.00 per litre as contract price for supplies to appellant’s Kano storage tank could not have been a response to/acceptance of the offer/request contained in Exhibit M for a reviewed contract price of N69.50 per litre, and so the Court of Appeal was evidently not right in its decision allowing the Cross-Appeal.

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In BEST (NIG.) LTD V BLACKWOOD HODGE (NIG.) LTD (2011) 5 NWLR (Pt.1239) 95 at 127 Para G-H.

“An offer is impliedly rejected if the offeree instead of accepting the original offer makes a counter-offer which varies the terms proposed by the offeror. Hyde v Wrench (1840) Bear. 334. The Legal effect of a counter offer is to repudiate or discharge the original offer so that it cannot subsequently be accepted by the offeree”.

See also Afrotec Technical Service (Nig.) Limited v M.I.A. & Sons Limited (2000) 15 NWLR (Pt.692) 730.

The long and short of what is available is that no consensus on the price increase for Kano supplies was on the table and while there was an offer in that regard which was in writing nothing is proffered as acceptance of that offer, which translates to the decision of the Court of Appeal on the said variation, Exhibit E not backed by evidence before Court. Therefore this Issue 1 is resolved in favour of the appellant to the effect that the Court below making the award of N126,777,014.37 ignored the agreement of the parties that the contract sum is subject to the deduction of 5% withholding tax which comes to

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23,941,758.75 that should be deducted from the contract price in order to arrive at the amount due to the respondent.

ISSUE 2:

Were the learned Justices of the Court of Appeal right or wrong in their decision that the learned trial judge rightly rejected the respondent’s letter dated 2nd March, 2009 in evidence on the ground that the said letter is privileged.

It was submitted by learned counsel for the appellant that the decision of the Court below on the admissibility of the unsigned documents is contrary to a plethora of authorities which point to the direction that where a document is unsigned, it is as useless as the paper on which it appears. That the respondent is not one of the addressees of the mail and the respondent cannot therefore rely on a document not addressed to it as an admission. He cited Omega Bank (Nig.) Plc v O.B.C. Ltd (2005) 8 NWLR (Pt.928) 547 at 576 etc.

He stated that the condition which needed be satisfied before Exhibit L was tendered were not met as stipulated under Section 84 of the Evidence Act, 2011. Also that Exhibit L was not pleaded and so such a document is

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inadmissible and should be disregarded. He cited Akande v Alaga (1988) 4 NWLR (Pt.86) 1 at 13; Oyediran v Alebiosu (1992) 6 NWLR (Pt.249) 550 at 556; S.B.N. Plc v CBN (2009) 6 NWLR (Pt.1137) 237 at 198; Jolayemi v Olaoye (2004) 12 NWLR (Pt.887) 322 at 340 etc.

Learned counsel for the respondent responded by saying that the letter of 2nd March, 2009 was made in the process of reconciling the dispute between the parties and so the lower Court was perfectly in order when it upheld the decision of the trial Court on the said document. He cited Ashibuogwu v Attorney General, Bendel State (1988) 1 SC 248.

The Court below in respect to this letter aforesaid stated thus:-

“In pleading the document, the appellant averred in its counter claim 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 process of reconciliation, the respondent admitted a shortfall of 660,000 litres in a letter dated 2nd 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

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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 the parties”.

The objection against a document is to be raised only at the point of tendering it in evidence not before such as at the preliminary stage and that is what a pre-trial session is. I place reliance on the following cases – Adejumo & Anor v Governor of Lagos State (1970) LPELR – 99 (SC) page 7; Etim & Ors v Ekpe & Anor (1983) LPELR – 1172 (SC) P.19.

That being the law it falls to reason that the letter dated 2nd March 2009 having been made in the process of reconciling the dispute between the parties and so the Court of Appeal was right to have upheld the decision of the trial Court on the document.

The principle is anchored on the basis that at the point of mediation, parties should speak freely all in the quest for a peaceful resolution of the dispute. This principle of free discussion will be seriously prejudiced or impaired if any offer or admission made in the process of the negotiation

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could be given in evidence and used in support of a party’s case in Court afterwards where the negotiation breaks down. Therefore when those negotiations are reduced in writing they are usually marked “without prejudice” for the avoidance of doubt and so remain inadmissible against the parties or any of them in the ensuing suit in Court. However, if the words “without prejudice” is not stated in plain language, it does not detract from the fact that the words are implied in the negotiations conducted in documentary form or verbally. See Ashibuogwu v Attorney General Bendel State (1988) 1 SC 248; (1988) 1 NWLR (Pt.69) 138 at 169 which case interpreted Section 198 of the Evidence Act which provisions are impari materia with the old Evidence Act which interpreted the law in accordance with the established cannon of interpretation, reliance being placed on public policy in the protection and service of public interest. This is all the more germane at this current time where the trend is the encouragement of mediation and resolution of disputes in peaceful atmosphere without resorting to Court process.

All I have been I have been labouring to put across is that the Court below was right in its findings and decision on

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this issue that the said document of 2nd March, 2009 remained outside and inadmissible as evidence at the trial proper. This Issue is resolved against the Appellant.

ISSUE 3:

Whether the Court of Appeal rightly or wrongly endorsed the admissibility of Exhibit L and the attached internal memorandum of the appellant notwithstanding non-compliance with the mandatory conditions in Section 84 (1) of the Evidence Act on admissibility of electronic mail/evidence and the non-signing of attached internal memorandum.

Learned counsel for the appellant submitted that the letter sought to be tendered by the appellant which contains admission by the respondent is admissible and the letter was pleaded and frontloaded in the appellant’s list of documents and there was no indication of an objection and so respondent is estopped from objecting to the admissibility subsequently. He cited Ude v Nwara (1993) 2 NWLR page 638 at 662-663; Okoro v Egbuoh (2006) 15 NWLR (Pt.1001) 23; Section 196 (1) of the Evidence Act, 2011.

Responding, learned counsel for the respondent stated that there was no pronouncement on the admissibility of

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Exhibit L by the Court of Appeal and so leave of Court needed to be obtained before raising the issue. He cited Idufueko v Pfizer Products Ltd (2014) 12 NWLR (Pt.1420) 96 at 1223; Guobadia v The State (2004) LPELR – 1344 page 11.

The angle taken by the appellant is that Exhibit L which was tendered and admitted before the trial Court should herein be discountenanced as the Court below ought to have known that the document was computer generated and did not meet the conditions provided for under Section 84 (4) of the Evidence Act. The resistance from the respondent stems from the fact that this contention of the appellant is belatedly brought up at this stage as it was not an issue at the Court of Appeal and so cannot be taken up here since it was not protested against in the Court below and a pronouncement made upon it. Again for full measure is that this Court cannot enter into the determination on the issue, leave of Court having not been sought and obtained in that regard being a fresh issue on appeal since not being raised in the Court of Appeal though presented in the trial Court. The implication is that

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after the trial Court’s pronouncement or use thereof, the matter was abandoned at the stage of the Court below and so the issue rested for all time as there is no competence for appeal from High Court to the Apex. See Idufueko v Pfizer Products Ltd (2014) 12 NWLR (Pt.1420) 96 at 122; Guobadia v The State (2004) LPELR – 1344 (SC) page 11; Section 233 (1) of the 1999 Constitution; Aladejobi v NBA (2013) 5-7 MJSC (Pt.11) 20 -207.

See also  Alhaji A. Alfa Adehi V. Atuluku Atega & Ors (1995) LLJR-SC

The appellant is urging this Court to discountenance Exhibit L because it was unsigned but the appellant did not take up the findings of the Lower Court which stated that this case is of peculiar circumstance that cannot be ignored.

The point has to be made that the requirement of signature is made by the law to determine its origin and authenticity with regard to its maker and so where certain situations exist an unsigned document could be admissible as in this instance where oral evidence clarifying the document and its authorship as in the case at hand thereby rendering such an unsigned document admissible. This unusual but allowable exception to the general rule was well explained in this Court in the case of Awolaja &

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Ors v Seatrade G.B.V. (2002) LPELR – 651 per Ayoola JSC as follows:-

“A signed document though valuable as putting it beyond peradventure what terms the parties have agreed to is not essential to the existence of a contract of affreightment. Where the immediate parties to the agreement do not deny their agreement or the existence of the contract of affreightment and there is no doubt about their intention that they should be bound, barring statutory provision to the contrary, (and none has been cited by the defendants) the existence of the contract cannot be impugned on the ground that the document embodying the terms they have agreed to was unsigned, unless the parties have made such a condition of their being bound”. (Italics supplied).

The cognizibility of the origin of Exhibit L is underscored in this instance where the appellant’s sole witness stated thus:-

“Exhibit L is dated 12/5/2008. Exhibit L was copied to me and in the figures in attachment of Exhibit L. 6.384,469 litres according to dispute. I agree that Exhibit L is confirming Exhibit F”.

Clearly the parties are agreed on the said Exhibit L and that it emanated from the appellant and so the current

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posture on the said Exhibit L by the appellant is strange and so the Court below had its findings well supported by evidence and for effect I shall quote excerpts therefrom thus:-

“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 addressee 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 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 litres according to dipping. I agree that Exhibit L is confirming Exhibit F”.

The finding of the Court of Appeal on the point is unassailable and I am at one with it and so resolve this issue against the Appellant.

ISSUE 4:

Whether learned justices of the Court of Appeal right or wrong in the circumstances in the selective

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interpretation of the preamble and main part of Exhibit K in the determination of quality of LPFO supplied to appellant’s Kano tank.

Learned Senior counsel for the appellant stated that it was not open to the Court below to pick and choose which part of Exhibit K to act upon and which part to reject and that a document once admitted should be interpreted and evaluated as a whole and not selectively. That where there is a conflict between a recital/preamble which is merely an introductory part of a document and the main part of the document, the latter will always prevail over the former. He referred to Walsh v Trevanon (1850) 15 QBD 733 at 751; Re Moon EX P Dawes (1886) 17 QBD 275 at 286; Management Corporation Strata Title Plan NO. 1933 v Liarg Huat Aluminium (2001) BLR 351.

That an admission amounting to estoppel ought to be pleaded but same was not pleaded and so the Court below was wrong to hold that appellant was estopped from denying the quantity of LPFO which appellant allegedly admitted as having been supplied to its Kano tank.

For the respondent, it was contended that there was no conflict between the recital and the operative clause of

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Exhibit K for the lower Court to prefer the operative clause. That the purported conflict which appellant is claiming has not been established by it. He cited Okobia v Ajanya (1998) LPELR – 2454 (SC).

This Court is herein faced with concurrent findings of fact of the two Courts below that the respondent had supplied 6,384,469 litres of LPFO to the appellant which the appellant urges the Court to depart from and the question that is thrown up alongside that invitation of the appellant is if this Court is armed with what would propel such an upset of the earlier findings such as that if the findings were perverse or bedeviled with error in substantive or procedural law which if not corrected will lead to a miscarriage of justice. Indeed there is a plethora of judicial authorities to the effect that disturbing concurrent findings of fact of two or more Courts below is not done lightly or unadvisedly. That such an interference is usually guided to avert a miscarriage of justice and not offhandedly as the fancy takes the higher appellate Court. See Bankole v Pelu (1991) 8 NWLR (Pt.211) 23; Sosanya v Onadeko & Ors (2005) LPELR – 3105 (SC) pages 37-38 per Ejiwunmi JSC;

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Oseni v Bajulu (2009) LPELR – 2796 (SC) 14; Lokoyi & Ors v Olojo (1983) 8 SC 61.

In an attempt to impugn the finding of the Court of Appeal, the appellant had alluded to a selective interpretation of Exhibit K by the Lower Court. I shall go back to the record and quote excerpts from the decision of the Court below per Abiru JCA for full disclosure and thus:-

“Now, it is settled that in interpreting a document, the document must be read as a whole, and not part in isolation, and that the different parts of the document must be interpreted in the light of the whole document and a effort must be made to achieve harmony amongst its different parts…. This principle also applies where the document is part of documents on 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

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6,384,469 liters by the agreed dipping method and it was the difference 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 liters”.

Abiru JCA went further to say:-

“The two documents, Exhibits 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, 2007 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”. (See pages 1084-1085 of the record).

I agree with learned counsel for the respondent that there was no conflict between the recital and the operative clause of Exhibit K and that the purported conflict which the appellant is claiming has not been established by it and the Court below dispelled such an illusion thus:-

“The above findings obviate any purported conflict that might arise on this issue”.

It has to be said that the Court below per Abiru JCA went to

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great length in the consideration of all that was before him and I shall quote part of that judgment thus:-

“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 August, 2008, the sum of N70 Million on the 1st November, 2008 and the sum of N23,058,160.63 on the 6th 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; Agreement was Exhibit K”.

From what was found and stated by the Court below there clearly is no basis for the appellant’s invitation to this Court to interfere with the concurrent findings of facts of the two lower Courts, the basis for such urging being absent as they stemmed from what is borne out of the record and where the balance of justice lay. This Issue is also resolved against the Appellant.

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On the whole save for Issue 1 which went against the Respondent and which did not affect the overall result of the appeal, all other issues are favorably resolved for the Respondent and which rendered the appeal unmeritorious and so I dismiss the appeal as I affirm the decision of the Court of Appeal and the consequential orders made therein.

Appeal dismissed with costs to the Respondent.


SC.213/2016

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