Bulet International Nigeria Limited V. Tajudeen Kolawole Balogun (Trading Under the Name and Style Roasio International) (2001)
LawGlobal-Hub Lead Judgment Report
RABIU DANLAMI MUHAMMAD, J.C.A
The writ of summons in this suit was initially issued under the undefended suit. The plaintiff’s claim, who is now the respondent in this appeal, was for the sum of N56, 325.00 being the cost of sub-contracting of full renovation works for block 11/202. The defendant, now the appellant herein, filed a notice of intention to defend. As a result of the notice of intention to defend and with the consent of both parties, the suit was transferred to the general cause list. Pleadings were ordered, filed and exchanged. In paragraph 14 of the statement of claim, the plaintiff claimed as follows:-
“Whereof the plaintiff claims the said sum of N70, 405.00 (SEVENTY THOUSAND FOUR HUNDRED AND FIVE NAIRA ONLY) from the Defendant with 21% interest per month on the said sum from 1st day of November, 1992 until the judgment is delivered in this suit and thereafter at 10% interest until the judgment is finally satisfied and the cost of this action.”
In its statement of Defence the appellant herein denied any liability and stated that the plaintiff was not entitled to the reliefs claimed or any relief at all and that the action should be dismissed with substantial costs.
At the hearing of the matter, the plaintiff testified on his own behalf. The defendant called two witnesses who testified on its behalf. In a reserved judgment, the learned trial judge gave judgment in favour of the plaintiff. This is what the trial judge said:-
“In the final analysis, the plaintiff has proved that there is an outstanding sum of N50, 810.00. The judgment of this Court is therefore in the sum of N50, 810.00 in favour of the plaintiff against the defendant. In accordance with the provisions of 039 R. 7 of the High Court (Civil Procedure) Rules, 1987 the judgment sum shall attract an interest of 10% per annum with effect from today till the total liquidation of the judgment sum.”
Aggrieved with this decision, the defendant appealed to this Court. The Notice of appeal filed contained three grounds of appeal. They are:-
“1. The learned trial judge erred in law when he held that the plaintiff is not estopped from raising the issue of outstanding payments and this occasioned a miscarriage of justice.
PARTICULARS
(a) There was abundant evidence before the Court showing that Exhibit 6 is final payment.
(b) The plaintiff in his reply and evidence led on it did not deny or in any way defend the issue of estoppel but only asserted that Exhibit 6 is not related to the dispute before the court.
(c) There was evidence before the Court, which evidence the court accepted, that Exhibit 6 is connected to the issue before the Court.
- The learned trial judge erred in law when he held that the agreed contract sum stood at N220, 000.00 as against N155,410.00 stated by the Defendant.
PARTICULARS
(a) There exists the evidence of DW1 to the effect that there was a mistake in the calculation of the contract sum.
(b) Evidence of DW1 in relation to Exhibit 1 showed a mistake in calculation of the contract sum and which evidence was neither challenged nor discredited.
- The learned trial judge erred in law when he held that the error in calculation as contained in Exhibit 2 has not been shown to fall within the exceptions to section 132 (1) of the Evidence Act.
PARTICULARS
(a) There exists evidence of DW1 to the effect that the contract was awarded for the sum of N220.000.00.
(b) There exists evidence to the effect that this figure was arrived at through arithmetical error and that from the bill of quantities the actual contract sum was N155.420.00.
(c) That all these facts show that Exhibit 2 is not conclusive of the contract between the parties.”
In accordance with the Rules of this Court, briefs were filed and exchanged. In the appellant’s brief two issues were identified for the determination of this appeal. The issues are:-
“1. Whether the lower Court was right in holding that the doctrine or estoppel by conduct will not in the case, apply to estop the plaintiff/respondent from claiming for any outstanding payments.
- Was the lower court, from the evidence before it, right in holding that it has not been shown that arithmetical error falls within the exceptions as contained in section 132 (1) of the Evidence Act 1990.”
The respondent agreed with the issues formulated by the appellant and adopted same for the resolution of the appeal.
After defining estoppel by conduct, it was submitted on behalf of the appellant that estoppel by conduct would apply to estop the respondent from making his claim at the lower court. To buttress this submission the following cases were cited in support: – Tika Tore Press Ltd V. Abina (1973) 1 ALL NLR (pt 11) 244 and Gregory Obi Ude V. Nwara (1993) 2 NWLR (pt 278) 628. It was further submitted that the trial judge erred when he held that the respondent, not being the maker of Exhibit 6 was not estopped from raising the issue of outstanding payment. It was also submitted that the respondent, by signing Exhibit 6 represented to the appellant his acceptance of the sum indicated in Exhibit 6 as final payment and that it is irrelevant whether this was done willfully or negligently.
It was also submitted that since parties are bound by their pleadings and that the appellant has raised the issue of estoppel by conduct and this was not denied by the respondent, the respondent is deemed to have admitted same. Moreover, since the respondent did not lead any evidence in proof of the averments in his reply to the plea of estoppel, he is in law deemed to have abandoned the pleadings and the court should have accepted the appellant’s unchallenged evidence.
In support of this submission, the appellant relied on Aishatu Allyn V. Adewuyi & Ors (1996) 4 NWLR (pt 442) 284.
It was submitted on behalf of the respondent that the respondent did not act or conducted himself willfully to cause the appellant to believe that the “final payment” the appellant wrote which he signed was for full and final settlement of his total indebtedness to the appellant. It was also submitted that the appellant did not show the conduct of the respondent which made the appellant change its position. The Exhibit 6 where the word “final” was written was prepared by the appellant and was kept in its custody. It was further submitted that on the authority of Tika Tore Press Ltd V. Abina (supra) the promise must come from the respondent, which must have been acted upon by the appellant and that there was no evidence that the appellant was expected or induced or drawn to act otherwise but acted ordinarily in discharge of the debt owed to the respondent. The respondent also relied on the following cases: – Isichel V. Allagoa (1998) 12 NWLR (pt 577) 196 and Ude V. Nwara (Supra).
The appellant’s contention is that the respondent by his conduct has made the appellant to believe that by signing the voucher with the words “final payment” written on it, he, the respondent has accepted the money as full payment of the contract sum and as such the respondent is estopped from claiming the balance. The appellant is relying on promissory estoppel. Simply put, the doctrine of promissory estoppel is that where by his words or conduct one party to a transaction, makes to the other party an unambiguous promise or assurance which is intended to affect the legal relations between them, whether or not the relationship is contractual, and the other party acts upon it altering his position to his detriment, the party making the promise or assurance will not be permitted to act inconsistently with it. Fatayi – Williams JSC (as he then was) succinctly explained the principle in Tika Tore press Ltd. V. Abina (1993) 12 SC 79 where he stated at pp 91 – 92 that:-
“The principle, as we understand it, is that where one party has, by his words or conduct made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted upon accordingly, then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwords be allowed to revert to the previous legal relations as if no such promise or assurance had been made by him. He must accept their legal relations as modified by himself, even though it is not supported in point of law by any consideration but only by his word.”
It should be noted that this principle does not create new causes of action where none existed before. The principle must be “used as a shield and not as a sword.” It can only be used as a defence and as such could only be invoked by a defendant see: Combe V. Combe (1951) 1 ALL E. R. 767. Another qualification in applying the principle is stated in D & C Builders Ltd Vs Rees (1965) 3 ALL E. R. 837 where Lord Denning M. R. observed at p 841:-
“In applying this principle, however, we must note the qualification. The creditor is barred from his legal rights only when it would be inequitable for him to insist on them. Where there has been a true accord, under which the creditor voluntarily agrees to accept a lesser sum in satisfaction, and the debtor acts on that accord by paying the lesser sum and the creditor accepts it, then it is inequitable for the creditor afterwords to insist on the balance. But he is not bound unless there has been truly an accord between them.”
The question is: – Is there truly an accord voluntarily made between the parties? From the facts of the case it is clear that the respondent did not make any promise or assurance to the appellant that he would accept a lesser sum in satisfaction of the debt. Indeed it is the appellant who wrote on the payment voucher the words “final payment” which the respondent signed. In my opinion the mere fact that the respondent signed the voucher could not be interpreted that he has by conduct voluntarily agreed to accept a lesser sum in satisfaction. Another point to be considered is whether the appellant has altered its position to its detriment by the respondent’s signing the voucher. From the evidence it is clear that the appellant has not altered its position to its detriment. In my opinion there was no true accord between the parties. The respondent did not voluntarily and unambiguously agree to accept a lesser sum in satisfaction of the debt. My answer to the first issue is therefore in the affirmative. The lower court was right in holding that estoppel by conduct did not apply to estop the respondent from claiming any outstanding payments.
The second issue for determination is whether the lower court was right in holding that it has not been shown that arithmetical error fell within the exceptions contained in S132 (1) of the Evidence Act. 1990. It was submitted that the appellant raised in his statement of defence, the issue of arithmetical error and that evidence was led in proof of this. It was the appellant’s evidence that an error in calculations led to the mistake and that this evidence was neither rebutted nor shaken by cross-examination. It was submitted that by the provision of 5132 (1) of the Evidence Act, Oral Evidence could be led to rebut the contents of a document. It was further submitted that arithmetical error falls under the provision of 5132 (1) (a) of the Evidence Act because it is a mistake of fact. The case of Alhaji Aliyu Shettimari V. Michael Nwokoye (1991)9 NWLR (pt 213) 60 was relied upon in support of this submission. It was submitted that since the appellant’s evidence was not impeached in any way, the trial court ought to have dismissed the plaintiff’s claim for payment of the entire contract sum.
The respondent, on the other hand submitted that there was no mistake and that the appellant revalued the contract sum unilaterally. It was also submitted that there was no evidence to show that the contract sum was N155, 407.00 and not N220, 000.00 and as such it was not issue of mistake of fact which would warrant a correction by oral evidence as envisaged by S132 (1) of the Evidence Act but alteration and variation of the contract. It was further submitted that the terms of the agreement are unambiguous and that the appellant would not be allowed to add or vary the term in them by extrinsic Evidence. See: U. B. N. Plc. V. Akinrimade (2000) 2 NWLR (pt 647) 466 and Oladimeji V. Trans Nig. Ass. Co. Ltd. (1998) 12 NWLR (pt 576) 44.
The law is that where terms of a contract have been reduced into writing, no evidence may be given of the terms of such contract except the contract document itself and no oral evidence can be adduced to alter, vary, contradict or add to the document except as provided by S.132 of the Evidence Act. S132 of the Evidence Act Cap 112. Laws of the Federation of Nigeria 1990 provides:-
“132 (1) When any judgment of any court or any other judicial or official proceedings, or any contract, or any 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 proceedings, or of terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein-before contained; nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence.
Provided that any of the following matters may be proved:
(a) Fraud, Intimidation, illegality; want of due execution; the fact that it is wrongly dated; existence, or want or failure, of consideration; mistake in fact or law; want of capacity in any contracting party or the capacity in which a contracting party acted when it is not “inconsistent with the terms of the contract; or any other matter which, if proved, would produce any effect upon the validity of any part of it, or which would entitle any person to any judgment, decree, or order relating thereto.”
It is clear from proviso (a) to S. 132 (1) of the Evidence Act that oral evidence may be adduced to prove mistake in fact or law, which, if proved, would produce any effect upon the validity of any part of it, or which would entitle any person to any judgment, decree or order relating thereto. Arithmetical error in a contractual document, in my view, is a mistake of fact and as such by virtue of proviso (a) to S. 132 (1) the appellant is entitled to adduce oral evidence to prove that there was indeed an arithmetical error in the document.
The question now is: – Has the appellant proved that there was an arithmetical error in arriving at the Contract sum? In his evidence in Chief, this is what DW1 said: – “The grand total is N155, 420. When I summarised, I discovered arithmetical error. The total is N155, 420.00 and not N220, 000.00. The difference of N64, 000.00 is not covered by any work.”
Under cross-examination DW1 further stated:-
“The initial amount by Exhibit 1 was N274, 520.00. It was agreed to be N220.000.00 due to basic arithmetical error. We did not write the plaintiff to communicate the error of N64, 000.00.”
From the evidence, DW1 has alleged that there was an arithmetical error arriving at the contract sum. However, there is nowhere where he showed what the arithmetical error is. The evidence remained mere allegation. It has not been proved that there was indeed an arithmetical error. Mere allegation without more is not enough. The allegation must be proved. Since the allegation has not been proved, the appellant cannot avail itself with the provisions of proviso (a) to S132 (1) of the Evidence Act. My answer to the second issue is therefore in the affirmative. The Lower court was right in holding that 8132 (1) (a) did not apply.
In the circumstance, the appeal fails and is hereby dismissed.
The judgment of Ja’afaru J. delivered on 23rd day of February, 1996 is affirmed. The respondent is entitled to cost which I asses at N3, 000.00.
Other Citations: (2001)LCN/0956(CA)