Emmanuel Olamide Larmie V. Data Processing Maintenance & Services Ltd (2005)
LAWGLOBAL HUB Lead Judgment Report
W.S.N. ONNOGHEN, J.S.C.
The appellant instituted an action against the respondent in the High Court of Lagos State claiming the following reliefs in paragraph 27 of the statement of claim:
“27. In view of the defendant’s aforesaid breaches more particularly set out in paragraph 25 above, the plaintiff claim as against the defendant the following reliefs and remedies:-
(i) A declaration that the plaintiff is entitled as against the defendant to specific performance of defendants obligations and undertaking under an agreement evidenced by defendant’s letter of appointment to plaintiff dated 5th March, 1992 and all other verbal assurances, promises and commitments made by defendant’s officials to plaintiff to obtain his assistance in securing the Nigerian Agricultural and Co-operative Bank’s Computer Sales Contract award in defendant’s favour.
(ii) A declaration that the plaintiff is entitled to the remuneration of 5% of the total computer contract price stipulated in the said letter of appointment, the plaintiff having initiated the business contract of the Nigerian Agricultural and Co-operative Bank’s multi-million dollars computer contract to defendant for which plaintiff had not yet been paid any fee whatsoever.
(iii) A declaration that the purported terminal date of 31st December, 1992 in plaintiff’s letter of appointment is of no effect and cannot terminate plaintiff’s right to full payment for services already rendered to defendant prior to that terminal date, in introducing the computer sales contract and pursuing the lobbying activities up to the submission of defendant’s bid and thereafter, since the defendant had already stipulated in the letter that the time of payment of the 5% of the sales commission to plaintiff would be whenever defendant was fully paid, which in effect meant that the actual terminal date agreed by the parties for payment to plaintiff was open ended, i.e. as soon as defendant received full payment and the plaintiff was paid.
(iv) An injunction restraining the defendant from remitting out of Nigeria or otherwise paying out to any person or authority or expending the sum of USD430,317.01 being 5% commission of the contract sum of USD8,606,340.12 payable on the Nigerian Agricultural and Co-operative Bank’s computer contract award to the plaintiff.
(v) Special damages for breach of contract committed by defendant against plaintiff are as follows:
(a) The sum of USD430,317.01 being the agreed 5% commission on the USD8,340.12 dollar contract price on the Nigerian Agricultural and Co-operative Bank’s computer contract award to defendant.
(b) The sum of N90,287.50 being 5% of the naira 1,805,750 price of the same computer sales contract.
(c) 5% of the annual maintenance charges being ancillary services under the computer contract calculated upon the charges the defendant made on the ancillary and maintenance contract on the computer equipment supplied under the Nigerian Agricultural and Co-operative Bank’s computer contract.
(d) Interest of 21% per annum on items (a)-(c) from the date payments were received from the Nigerian Agricultural and Co-operative Bank by the defendant until the date of this writ of summons.
(vi) General and exemplary damages for breach of contract in the sum of N100million representing compensation to plaintiff for the loss of business opportunities and the commitment of the human material and financial resources to the enhancement of the core business interest of the defendant in Nigeria from March, 1992 up to date.
(vii) An order compelling defendant to immediately pay into an escrow account, in Nigeria in the joint names of plaintiff and defendant the amounts claimed under paragraph (v), (a)-(c) above until the final judgment of this court.”
The facts of the case as can be gleaned from the record are that there was a meeting between the parties on the 3rd day of March, 1992 in which appellant discussed a business proposal aimed at facilitating the award of a computer contract to the respondent by the Nigerian Agricultural and Co-operative Bank at a commission of 5% on the contract sum to be paid by the respondent. Exhibit B is evidence of the agreement in relation to the transaction. However, exhibit B contains a terminal date of 31st December, 1992 which appellant contends, both in pleadings and evidence, was not part of the oral agreement reached by the parties on the 3rd March, 1992 meeting. Appellant testified to the fact that he subsequently took up the respondent on the issue of terminal date as contained in exhibit and was assured that the date was put in the letter in question for administrative convenience. However, the contract for which the agreed 5% commission was payable was not won before the terminal date, it on 3rd April, 1993 which is more than three months after the said terminal date.
The respondent filed a statement of defence but did not testify at the trial though it maintained that the contract between the parties is as contained in exhibit B which was terminated on 31st December, 1992 and consequently it was under no obligation to pay 5% commission to the appellant.
At the conclusion of trial, the learned trial Judge found for the appellant as a result of which the respondent appealed to the Court of Appeal which set aside the judgment of the trial court in its judgment of 16th December, 1999. The present appeal is against that judgment.
In the appellant’s brief filed on 21/01/02, learned counsel for the appellant Oluseye Opasanya, Esq. formulated three issues for the determination of the appeal. These are as follows:-
“3.1.1 Whether from the evidence available, the Court of Appeal did not err when it held that there was no agreement between the parties, which the plaintiff could enforce.
3.1.2 Whether the Court of Appeal was right in holding that the plaintiff was not entitled to interest on the 5% commission not paid by the defendant even when such commission is due.
3.1.3 Whether the Court of Appeal was right in deciding on fresh issues raised by the appellant without requisite leave to that effect.”
Learned counsel for the respondent in the respondent’s brief filed by Ifeanyi Nweze, Esq. on 9th June, 2003 also identified three issues which are substantially the same with the issues formulated by learned counsel for the appellant. The issues are as follows:
(i) “Whether on the evidence before the court, the plaintiff was entitled to judgment.
(ii) Whether the lower court was right when it commented that the interest awarded by the trial court was outrageous; and
(iii) Whether the Court of Appeal based its decision on fresh issues not raised before the trial court.”
In arguing issue No.1, learned counsel for the appellant submitted that the fulcrum of the relationship between the parties is the meeting on 3rd March, 1992 which resulted in the deal giving rise to the action and that exhibit B appointed the appellant a marketing consultant for the purpose of procuring the Nigerian Agricultural and Co-operative Bank’s computer sales contract. Learned counsel then submitted that the lower court failed to accord the meeting of 3rd March, 1992 its pride of place in the transaction; that exhibit B did not displace or extinguish the earlier oral contract between the parties on 3rd March, 1992. Learned counsel further submitted that to determine whether there is a contract between the parties the lower court ought to have considered all the evidence, documentary and oral, tendered by the appellant as was decided in Shell B.P v. Jammal Engineering (1974) 4 S.C. 33 but that the Court of Appeal ignored the oral testimony of P.W.1; that contrary to the decision of the lower court, exhibit B does not require acceptance by the appellant for it to become binding on the respondent thereby making this case different from Afolabi v. Polymera Industries (Nig.) Ltd. (1967) 1 ALR Commercial 184; (1967) 1 All NLR 144.
Submitting in the alternative, counsel stated that appellant accepted the terms by subsequent conduct by arranging meetings and introducing the respondent to Nigerian Agricultural and Co-operative Bank; that the lower court was wrong in holding that the award of contract to the respondent on or before the 31st December, 1992 is a fundamental term of the contract reached by the parties. Arguing further, learned counsel for the appellant submitted that though the appointment of appellant as marketing consultant took immediate effect, his remuneration was payable as at the time of final payment from customer which cannot be determined without reference to the oral account of the meeting of 3rd March, 1992 as narrated by P.W.1, particularly as the matter is not dealt with in exhibit B. Learned counsel went on to argue that the 31st December. 1992 date is therefore relevant from the point of determining when the terms set out in exhibit B could be re-negotiated, not when the respective obligations imposed on the parties were expected to be performed.
Submitting further in the alternative, counsel stated that “at any rate, evidence on the records show that the stipulation of 31st December, 1992 was modified by the parties orally and that from the 5th March, 1992 parties understood that reference to date was only for administrative convenience.” and that renewal of exhibit was therefore a matter of course or “automatic”. Learned counsel then urged the court to resolve the issue in favour of the appellant.
On his part, learned counsel for the respondent referred to exhibit 3 particularly the clause dealing with 31st December, 1992 and submitted that that date was to terminate the contractual relationship between the parties; that this interpretation is so understood by the appellant that is why he admitted in exhibit 3 that the validity of exhibit expired on 31st December, 1992 subject to a re-negotiation and that he failed in his attempt to get the agreement revalidated. Counsel further submitted that this is inconsistent with appellant’s oral testimony in court that he queried the terminal date in exhibit B; that exhibit C is consistent with the testimony of the appellant under cross examination at page 51 that he acknowledged the receipt of exhibit B and did not respond to it; that the terminal date on exhibit B is the date on which the obligation of the parties to each other came to an end. Turning to the distinction being made by counsel for the appellant between the time the commission was earned and when it became payable, learned counsel for the respondent submitted that the said distinction is without basis in this case because it is not disputed that the contract for which the commission was to have been paid was awarded in April, 1993 by which time the contract had not only terminated but was not revalidated; that extrinsic evidence to vary the terms of exhibit B was not necessary having regards to the contents of exhibit C and that the trial Judge was therefore wrong in relying on the oral evidence to vary the terms of the contract. Learned counsel then urged the court to resolve the issue against the appellant.
I have carefully gone through the record and the briefs filed by both counsel. Appellant’s reply brief does not contain anything new but re-argued the issues in the appeal. From the record and the briefs, the following facts are not in dispute:
(a) that the parties entered into a contract as evidenced in exhibit B.
(b) that the said exhibit B contains a terminal date of 31st December, 1992 – when the obligations of the parties to each other would terminate;
(c) that the said terminal date could be extended by negotiation by the parties to the contract;
(d) that exhibit B came into existence after a meeting between the parties where the terms and conditions governing their relationship were discussed and agreed upon;
(e) that appellant made efforts to renegotiate the validity of exhibit B which efforts were futile;
(f) that before the terminal date contained in exhibit B, appellant worked hard for the realisation of the aim of the contract between the parties though the contract was not awarded to the respondent before the said terminal date;
(g) that the claim of the appellant before the trial court which has also been reproduced earlier in this judgment is not based on the principles of quantum meruit but on exhibit B and an alleged oral agreement varying the terminal date contained therein.
The argument of learned counsel for the appellant on the issue under consideration is simply that exhibit B does not exclusively govern the agency contract between the parties but that the oral agreement reached prior to exhibit B particularly on 3rd March, 1992 form part and parcel of the contract as regards the question of terminal date. The foundation of the dispute between the parties is therefore the issue of terminal date – whether it is as contained in exhibit B said to be the contract between the parties or exhibit B in addition to the prior oral agreement on the issue between the parties. While appellant and the trial court took the view that exhibit B and the alleged oral agreement on terminal date constitute the contract between the parties, the respondent and the lower court are of the opinion that the contract between the parties is as contained in exhibit B and it terminated on 31st December, 1992 before the award of the contract in relation to which the claim is made by the appellant. The issue under consideration is therefore simply to determine the correct view of the evidence.
Exhibit B which is dated 5th March, 1992 provides, inter alia, as follows:-
“Re: Appointment as Marketing Consultant”
We are happy to inform you that we have appointed your company as Marketing Consultants for the sale of computer equipment and related services to Nigerian Agricultural and Cooperative Bank.
The remuneration of your company will be 5% (five percent) of the total contract value payable as at time of final payment from customer.
This agreement will remain valid till 31st December, 1992, at which date it could be negotiated.
We look forward to a successful cooperation between our companies” …(Emphasis supplied.)
There is no document on record showing that after the receipt of exhibit B with the terminal clause which appellant contends is at variance with the oral agreement reached by the parties in a meeting of 3rd March, 1992, appellant wrote either protesting against the clause or rejecting the said exhibit B. However, there is exhibit dated April 2nd, 1993, also tendered by appellant which contains, inter alia, the following:
“Re: Appointment as Marketing Consultant Nigerian Agricultural and Cooperative Bank (NACB)
Please refer to Mr. Jacques Boissier’s letter of March 5th, 1992 on the above subject, (copy attached) and my discussion with you this morning.
I am glad to let you know that the award of the contract to DPMS is almost concluded.
I would therefore like to refer to paragraph 3 of the letter under reference which stipulates that the validity of the agreement expired on December 31st, 1992 and was subject to negotiation thereafter.
Shortly, before the expiration, I tried without success to see Mr. Boissier who, I was told, had travelled out of the country and was expected back sometime in January, 1993. I was therefore, unable to revalidate the agreement.
Other reasons were that by “the time he returned, I had travelled. When I came back, I came to see him but was informed that he was in a meeting with you. He gave me an appointment for the following week when I had to undergo a surgery from which I am not fully recovered.
By this time he had left for his new appointment…”
Exhibit C speaks for itself and it is very clear that it is not a protest on the issue of terminal date in exhibit B neither does it indicate any misconception about that terminal date, which had by then, become effective. Appellant was, therefore, in no doubt that exhibit B had terminated hence his stating: “I was therefore unable to revalidate the agreement.”
I hold the view that this piece of evidence clearly shows that appellant cannot be telling the truth when he stated that the terminal date was for an administrative convenience upon his inquiries from an officer of the respondent after the receipt of exhibit B, nor does it support the argument of learned counsel for the appellant that with that assurance from an official of the respondent revalidation of exhibit B was no longer relevant but “automatic.”
I agree with the submission of learned counsel for the respondent that the relevant portion of exhibit C is consistent with the fact that both parties were not in doubt as to the purport of paragraph 3 of exhibit B on terminal date. If the oral testimony of the appellant on the matter were true as learned counsel for the appellant has argued before this court, then the question is why did appellant, in his own words as evidenced in exhibit C tendered by him make efforts to revalidate exhibit B
Learned counsel for the appellant sought to draw a distinction between the time the commission was earned and when it became payable as stipulated in exhibit B and submitted that since payment of the commission cannot be made until after respondent had been paid, then the terminal date cannot relate to the earned commission. I agree with the submission of learned counsel for the respondent that the distinction sought has no basis. The distinction does not relate to the facts of this case; it is rather hypothetical because the contract for which appellant based his claim for commission was not even awarded within the life span of the agreement between the
parties i.e before 31st December, 1992. It was awarded, as agreed by both parties, in April, 1993 by which time exhibit B had not only expired but was also not revalidated in accordance with its terms. I hold the view that the argument of learned counsel for the appellant on the matter would have been relevant if that issue were to have been a live issue in the case, by which I mean, if the contract had been awarded within the life span of exhibit B; which is not the case as agreed by both parties.
It is the law that where parties have embodied the terms of their contract in a written document, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument. In the present case, the oral testimony of the appellant regarding the meeting of 3rd March, 1992 as it concerned the agreement between the parties with particular reference to the issue of terminal date of the contract which testimony is at variance with paragraph 3 of exhibit B, was to contradict the contents of the said exhibit B which section 132(1) of the Evidence Act, 1990 frowns upon and such evidence was inadmissible in law and the trial court ought not to have acted upon same – See Union Bank of Nigeria Ltd. v. Ozigi (1994) 3 NWLR (Pt. 333) 385; Eke v. Odolofin (1961) All NLR 404; Colonial Development Board v. Kamson (1955) 21 NLR 75; Molade v. Molade (1958) SCNLR 206.
It follows therefore that where there is any disagreement between parties to a written agreement on any particular point, as in the present case, the authoritative and legal source of information for the purpose of resolving that disagreement or dispute is the written contract executed by the parties, which in the present case is exhibit B.
It is always not the business of the court to make a contract for the parties before it or to re-write the one already made by them. Once the conditions precedents to formation of contract are fulfilled by the parties thereto, they are bound by it – See Oyenuga v. Provisional Council of the University of Ife (1965) NMLR 9. Having regards to the facts of the case and the relevant law, I hold the view that issue No.1 be and is hereby resolved against the appellant.
On issue No.2, learned counsel for the appellant submitted that since the facts show that the issue of interest claimed by appellant was never contended by respondent, the lower court was in error in querying the award of 21% of judgment debt per annum to the appellant; that the issue was raised suo motu by the lower court contrary to the decision of this court in Nwokoro v. Onuma (1990) 3 NWLR (Pt. 136) 22 at 33 and without the parties being given opportunity to be heard on it.
Learned counsel further submitted that the relevant considerations for award of interest are as laid down by this court in Ekwunife v. Wayne (WA.) Ltd. (1989) 5 NWLR (Pt.122) 422; that a party who should pay money to a third party but has wrongfully withheld, driving the other party to institute action to recover the money ought not to be allowed the benefit of having the money; that it is in evidence that respondent agreed to pay 5% commission out of the money paid by Nigerian Agricultural and Co-operative Bank as contract price and that respondent failed or refused to pay appellant after receiving the payment. Learned counsel finally submitted that the Court of Appeal decision that the appellant is not entitled to interest is unjustified in the light of the facts pleaded, evidence adduced, and applicable legal authorities on the point and urged the court to resolve the issue in favour of the appellant.
On his part, learned counsel for the respondent stated that the only evidence on record in respect of interest in this matter is at page 50 where P.W.1 said, “Also interest on the 5% sales commission due to him at 21%.”
Counsel submitted that there is no evidence to suggest that the 21% quoted is anything but an arbitrary figure; that the trial court awarded interest per annum at 21% from April, 1993 till full liquidation when evidence shows that April, 1993 was when the contract was awarded not when payment was made to the respondent and that evidence was not led as to when final payment was made to the respondent so as to make exhibit B operative.
Referring to Order 38 rule 7 of the High Court of Lagos State (Civil Procedure) Rules, learned counsel submitted that most judgment interest is awarded at a rate not exceeding seven and a half per centum per annum (7.5%), but the trial court awarded 21% from April, 1993 till final payment. Learned counsel then urged the court to resolve the issue against the appellant.
It should be noted that having resolved issue No.1, which is the main issue in this appeal against appellant, issue No.2 dealing with interest on an unearned 5% commission becomes irrelevant, appellant having been held not to be entitled to claim any commission since exhibit B was never revalidated and the contract which would have entitled appellant to earn the 5% commission on which any interest would have been claimable, was awarded after the expiration of the terms of contract between the parties. That apart, it is very clear that what the lower court said on the matter was by the way as it stated at page 224 as follows: –
“Such an award of interest if the plaintiff/respondent had been adjudged by this court to be successful would make a mockery of the exercise of judicial discretion particularly with relation to the foreign currency taking into consideration the local circumstances of our country. I observe that the award of 21% per annum to run from April, 1993 till full liquidation that again labours under the misconception of the law. Interest on judgment debt has statutory flavour and it normally starts to run from the date of judgment till liquidation, but I am yet to come across any rule of court which stipulate 21% interest on judgment debt from the date of judgment till final liquidation. From all I have said, the interest rate of 21% is outrageous and if the plaintiff/respondent had been adjudged to be successful that award would have been disallowed. ”
We must always bear in mind that it is not everything a Judge says that should constitute a subject of a ground of appeal particularly when what is said does not go to the root of the matter as decided by the court. In the instant case, the court merely made an observation and did not follow it up with an order setting aside the award of the said interest by the trial court. From the emphasis supplied on the passage of the judgment supra, what I have stated becomes very clear and instructive. The question is from the passage reproduced supra; which is the bedrock of the complaint of the appellant; how can a resolution of the issue involved positively affect the fortunes of the appeal I hold the view that the issue is irrelevant and therefore undeserving of the attention of this court and is accordingly discountenanced.
On issue No.3, learned counsel for the appellant submitted that from the pleadings, evidence and addresses of the parties at the trial court, the issues of quantum meruit, special damages and interest rate or contract price were not in controversy; that the trial court did not base its judgment on quantum meruit otherwise it would not have awarded the entire 5% commission to the appellant; that the lower court presided over a case different from what was heard by the trial court, relying on Oredoyin v. Arowolo (1989) 4 NWLR (Pt. 114) 172 at 192; that respondent needed leave of the lower court to raise the issues which leave was never sought and that the grounds of appeal filed without leave should be struck out relying on Maigoro v. Garba (1999) 10 NWLR (Pt.624) 555. Finally, learned counsel urged the court to resolve the issue in favour of the appellant and allow the appeal.
On his part, learned counsel for the respondent submitted that the case of the respondent at the Court of Appeal which led to the dismissal of the case of the appellant was not based on any of the issues being complained of in the issue under consideration. Referring to page 217 of the record, learned counsel stated that the lower court clearly said therein that the appellant’s case as formulated before the trial court had no semblance of quantum meruit and that it was an issue of law which suddenly raised its head in the course of writing the judgment by the trial Judge; that the lower court consequently held at page 218 of the record that the claim of appellant was not rooted in quantum meruit, and that since it was raised in the judgment of the trial Judge, respondent herein was right in law in raising the issue before the lower court.
Learned counsel further submitted that the decision of the lower court to dismiss the case of the appellant was not on the basis that appellant was not entitled to his claim on quantum meruit but on the basis that the contract relied upon for the case having been terminated cannot sustain the appellant’s case; that the issue of general and special damages though canvassed in defendant/appellant’s brief did not feature at all in the reasoning leading to the decision of the lower court to dismiss appellant’s claim and that issue 3 is academic.
Learned counsel then urged the court to resolve the issue against the appellant and dismiss the appeal.
I have carefully gone through the judgment of the lower court and I hold the view that that judgment was not based on the issues of quantum meruit, special damages and interest rate or contract price as canvassed by learned counsel for the appellant. It is very clear that the issue of quantum meruit was introduced for the first time in the judgment of the trial Judge and that both counsel never addressed that court on the matter. It is equally true and I agree with the view of the lower court expressed in it’s judgment at page 218 of the record thus
” … The claim of the plaintiff/respondent is not rooted in quantum meruit. And being a crucial point of law raised by the trial Judge himself in the course of writing his judgment, the appellant is on firma terra in law to raise it before us.”
Despite the above holding, the lower court did not dismiss the appellant’s claim on the basis that appellant is not entitled to claim on quantum meruit but on the basis that the contract relied upon by appellant in founding his claim having been terminated it cannot in law sustain the appellant’s case. That decision is the same with the decision of this court in the resolution of issue No.1 in this appeal which issue forms the main plank in the case of the appellant. Going through the judgment of the lower court, I confirm that the issue of general and special damages though canvassed by the respondent in its brief before the lower court did not feature at all in the reasoning that led to decision of the Court of Appeal on the matter – that is the dismissal of the claim of the appellant before the court of trial. In the circumstance, I agree with the views of the learned counsel for the respondent that issue 3 as argued is merely academic. I should, in no way, be understood as saying that the law is no longer that for a party to raise a fresh issue on appeal, he must first obtain leave of the appellate court. I am however saying that even if the Court of Appeal allowed the respondent to raise fresh issues without leave, since the decision of that court did not take into cognisance those issues or the issues did not form the basis of the decision of that court, that error by the Court of Appeal is not sufficient to result in the setting aside of that decision. To result in the invalidation of the decision of the lower court, as canvassed by the learned counsel for the appellant, it must be demonstrated that the error was substantial and formed the basis of the decision complained of and resulted in a miscarriage of justice. The law is still that it is not every error committed by the lower court that will result in the judgment of that court being set aside by an appellate court.
The term “miscarriage of justice” has been variously defined but its essence is that it is the decision or outcome of legal proceedings that is prejudicial or inconsistent with substantial rights of a party. As it is used in constitutional standard of reversible error in judgment, miscarriage of justice means a reasonable probability of more favourable outcome for the defendant.
It is the law that miscarriage of justice warranting a reversal of a decision should be declared only when the court, after examination of the entire case, including the evidence is of the opinion that it is reasonably probable that a result more favourable to the appellant would have been reached in the absence of the error. A miscarriage of justice therefore means such a departure from the rules which permeates a judicial procedure as to make that which happened not in the proper sense of the word a judicial procedure at all – See Nnajiofor v. Ukonu (1986) 4 NWLR (Pt.36) 505. I find no miscarriage of justice in the instant case which should enable the court to interfere.
I must observe that though appellant must feel bad in the way things turned out between the parties, particularly after doing so much to enable the respondent secure the award of the contract in question and naturally expected some compensation for his efforts, the way the action is framed and pursued denied him of any compensatory remedy. Learned counsel for the appellant threw all the eggs into one basket as a result of which they all broke when the basket came crashing down. A little care would have led to an alternative plea for compensation on the principle of quantum meruit which might have grounded the appellant a remedy. That is just by the way.
In conclusion I hold the view that this appeal is totally without merit and is accordingly dismissed with N10,000.00 costs against the appellant.