Tsokwa Oil Marketing Co. Nig. Ltd. V. Bank Of The North Ltd (2002)

LAWGLOBAL HUB Lead Judgment Report

U. ONU, J.S.C. 

In the High Court of Taraba State holden at Wukari, the plaintiff (hereinafter referred to as “the appellant”) filed an action by a writ of summons dated 22/10/91 against the defendant (hereinafter called “the respondent”) in a claim founded in breach of contract in the sum of N4,707,752.80 (Four million, seven hundred and seven thousand, seven hundred and fifty-two naira, eighty kobo) for the failure of the appellant to provide performance bond as earlier agreed in writing. The appellant in addition equally claimed 10% interest on the said sum with effect from 17th day of October, 1991, until judgment and thereafter until final payment. Subsequently, the writ was issued and served on the respondent through its manager at Rafin Kada branch, Taraba State. Consequently, the respondent entered an unconditional appearance on 9/12/91 through its solicitor. Pleadings were ordered, duly filed, exchanged and subsequently amended by the parties before the case eventually went to trial.

For purposes of clarity, I hereby set out the appellant’s further amended statement of claim in paragraph 9 thereof as follows:

“9. WHEREFORE the plaintiff claims the sum of N4,707,752.80 (Four million, seven hundred and seven thousand, seven hundred and fifty-two naira, eighty kobo) being special damages for breach of contract to provide the plaintiff N300,000.00 facility or performance bond or executed deed of guarantee as agreed in writing by the defendant and accepted by the plaintiff …..The plaintiff also claims 10% interest on the above sum from November, 1991 until judgment and also from date of Judgment until full payment and also the full costs of this action.”

The facts of the case giving rise to this appeal may be briefly stated as follows:

The appellant, a limited liability company, carrying on the business of oil marketing and bridging throughout Nigeria was at all material times to this action, the respondent’s customer at its Rafin-Kada branch in Wukari Local Government Area branch in Taraba State.

The appellant in a letter dated 8th May, 1989 (exhibit 74) requested the respondent for a performance bond for N300,000.00 in order to enable it bridge petroleum products from the Nigerian National Petroleum Corporation depot.

The respondent in response to the appellant’s application, gave conditions for the appellant to comply with before the performance bond could be released to it. The conditions were stated in exhibit 75 which is the respondent’s letter dated 3 October, 1989 and contained on page 175 of the record of appeal. The conditions succinctly stated are as follows:

“Release of the executed performance guarantee to be subjected to:-

(i) Execution of the deed of legal mortgage of property covered by certificate of occupancy No. 0136.

(ii) Taking comprehensive insurance cover of pledged property without interest duly noted.

(iii) Submission of company’s recent past three (3) years audited accounts.

(iv) Written acceptance of the terms and conditions governing the facility.”

The appellant, by exhibit 76 dated 23 November, 1989, wrote to the respondent accepting the conditions stated in exhibit 75 but this merely complied with only the fourth condition thereof. The appellant later forwarded the legal mortgage in respect of the first condition.

After waiting for the appellant to fulfil the other conditions stated above, the respondent was compelled to write a reminder dated 31st May, 1990, which was admitted as exhibit 96. It stated as follows:

“We are in receipt of your letter dated 29th May, 1990 requesting we should release your guarantee (performance bond). We wish to re-iterate the fact that we are still being guided by the four conditions communicated to you vide our letter reference RK/IS/11/TOMG/89 of 30th October, 1990, regarding the release of the performance bond. As we are yet to convince ourselves you have met the two remaining conditions here:

1. Taking a comprehensive insurance cover of the pledged property without interest duly noted.
2. Submitting your company’s recent past three (3) years audited accounts. We await your compliance to the above two items before releasing the performance bond.”

The documents submitted by the appellant in respect of the legal mortgage were later found to be defective and were rejected by the respondent through its letter dated 13th June, 1990 which was admitted in evidence as exhibit 98. The letter stated in part inter alia:

“We refer to your letter dated 19th February, 1990 and wish to inform you that the security documents you offered in pursuance of the above have been rejected for the following reasons:

(a) The statutory consent of the Governor of Gongola State was not obtained for the mortgage.

(b) The endorsed power of attorney was not registered at the land registration office as required by law.

(c) The power of attorney should be by way of a deed expressed to be irrevocable and for consideration (even if meagre) and then stamped and registered.”

While the first application was awaiting consideration, the appellant wrote a fresh letter dated 19th February, 1990, altering the first request by increasing the value of the performance bond from N300,000.00 to N539,000.00. This letter was tendered in evidence but rejected.

Having regard to the appellant’s new request in its letter of 19/2/90 coupled with its default to comply with the requisite preconditions, the respondent in a letter dated 1st July, 1991, cancelled the appellant’s application for the performance bond. The letter was admitted as exhibit 89 and it stated thus:

“RE: GUARANTEE (PERFORMANCE BOND) FORMALITIES FOR NNPC FOR N300,000.00. We have received your letter dated 25th June, 1991 on the above subject matter, particularly, requesting for the release of a N300,000.00 performance guarantee bond to you. We wish to inform you that ever since you requested for an increase in the amount to be covered by the performance bond from N300,000.00 to (N539,000.00) we were instructed to cancel the N300,000.00 guarantee and to work towards meeting your fresh demand (N539,000.00). Therefore, we regret to inform you that the cancelled N300,000.00 has been sent to your head office through our area office.”

The appellant challenged this cancellation, contending that it did not only accept the respondent’s offer but had fulfilled all the conditions in exhibit 75.

The appellant thereafter proceeded to call two witnesses in proof of its case and relied heavily on documentary evidence, largely admitted in the case without objection by respondent. The respondent on the other hand, called a lone witness by equally tendering a number of documentary evidence in its defence. After carefully reviewing the evidence adduced before it, and bearing in mind paragraph 9 of the amended statement of claim as well as the final addresses by counsel respectively, the learned trial Judge found for the appellant by granting all the reliefs it sought.

Dissatisfied with the said decision of the trial court, the respondent now appellant, filed its notice of appeal on 23/11/93 containing eight grounds. The said notice and grounds of appeal dated 19th day of December, 1993 is at pages 214 – 216 of the record. The appellant thereafter sought and was granted leave to file two additional grounds of appeal numbered 9 and 10 on 13th September, 1994. The appellant did not unfortunately bother to file the said additional grounds of appeal until 22/12/94, i.e., a period of more than 3 months after the leave referred to above was granted. Strangely enough, the appellant proceeded to file its brief of argument dated the 15th day of September, 1994, wherein it canvassed its proposed issues I and 2 relating to the additional grounds 9 and 10 which had not yet been filed at the lower court. In response, the respondent filed a notice of preliminary objection challenging this anomaly.

The appellant countered by filing the additional grounds on 22/12/94 but applied to amend its brief of argument. The respondent followed up by equally amending its brief dated 16th September, 1996.

In its judgment dated the 4th day of November, 1996, the Court of Appeal (hereinafter in the rest of this judgment called the (court below) disallowed the preliminary objection of the appellant, allowed the appeal of the respondent, set aside the judgment of the trial court and proceeded to dismiss the claim of the appellant in its entirety. Hence, the final appeal by the appellant to this court.

The parties acting pursuant to the rules of this court filed and exchanged briefs of argument.

At the hearing of this appeal on 27th February, 2002, the preliminary objection learned respondent’s counsel had filed earlier having been withdrawn, his notice of intention to rely upon a preliminary objection that this court lacked jurisdiction to entertain and determine the appellant’s notice of appeal on the ground that the eight grounds of appeal assailing the decision arrived thereat was incompetent, was accordingly struck out.

The above motion out of the way, what was left for me to consider was the appeal proper. In my consideration of it, I wish to adopt the respondent’s three issues set out below since they appear to me to be more comprehensive and apt. I shall treat them seriatim as hereunder.

Having regard to the grounds of appeal filed as amended, the issues the appellant formulated in its amended brief as arising for determination in this appeal could be narrowed down into two as follows:

1. Whether the Court of Appeal was right in striking out and/or dismissing the preliminary objection raised by the appellant’s counsel bordering on the validity of the additional grounds of appeal filed more than three months after leave was granted to file same as well as the propriety of filing and arguing issues arising from the said additional grounds in the respondent’s brief filed aforetime (Ground one).
2. Whether having come to the conclusion and rightly, too, that the appellant sufficiently pleaded special damages and satisfactorily proved same, the Court of Appeal was right to have dismissed the appellant’s claim on the ground that the respondent was not in breach of its contract and that the appellant failed to meet the conditions in exhibit 75 especially as the appellant’s claim was not for specific performance (Grounds two, three, four, five and six).

The three issues proffered on behalf of the respondent for our determination on the other hand, are:

3.01 Whether the judgment of the Court of Appeal, Jos delivered on 4th November, 1996 is an authenticated and valid judgment.

3.02 Whether the Court of Appeal was correct in allowing the appellant to file an amended appellant’s brief so as to accommodate the additional grounds 9 and 10 filed before the court.

3.03 Whether the appellant established his case before the trial High Court so as to entitle her to the award of N4,707,752.80 as damages for breach of contract.

ISSUE NO. I

This issue which is predicated on ground one of the appellant’s amended notice of appeal asks whether the court below was right in striking out its (appellant’s) preliminary objection.

An examination of the circumstances leading to that decision may be gleaned from the following string of events.

When on 23rd December, 1993, the respondent filed its appeal against the judgment of the trial court, it had only eight grounds of appeal. On 13th September, 1994, the respondent was granted leave to file two additional grounds of appeal. The order made by the court below in this respect read thus:

“Application is granted as prayed. The applicant is hereby granted leave to file two additional grounds numbering grounds 9 and 10. Leave is also granted to the applicant to raise and argue points of law which were not raised in the court below, N150.00 costs to the respondent.”

As can be seen from the above order, there was no time limit given to the respondent to file its additional grounds of appeal. Before filing the two additional grounds of appeal the respondent inadvertently filed its brief on 21st November, 1994 incorporating argument on the two additional grounds. The appellant discovered this error and immediately filed a preliminary objection on 6th December, 1994, challenging the brief as it touches the two additional grounds of appeal on 22nd December, 1994. With this development, the respondent with leave of the court below, filed an amended brief which covered the said additional grounds of appeal.

On 13th February, 1996, the appellant brought a motion which was granted for leave to file an amended brief of argument. On that day, the appellant indicated that it intended to file a preliminary objection, invariably different from the earlier one filed on 6th December, 1994, which appeared to have been overtaken by events. This intended preliminary objection, it will be recalled, was never filed. In its further amended respondent’s brief, the appellant did not raise any preliminary objection. Rather, it merely formulated issue one for determination based on the only preliminary objection earlier filed. It proceeded to proffer argument on it.

When this appeal came up for hearing before the court below, the appellant did not from the onset, indicate that it had a preliminary objection. The respondent commenced argument by adopting its brief. Thereafter, the appellant also adopted its brief. In its judgment. the Court of Appeal after reviewing the circumstances on which the preliminary objection was raised held:

“The facts which respondent’s counsel put forward in support of his argument are these:

(a) Appellant filed his first brief of argument on 21/11/94.

(b) By leave of court, appellant filed additional grounds of appeal 9 and 10 on 22/12/94.

(c) On 19/9/95, the appellant filed an “amended appellant’s brief’ which in its contents was the same as one previously filed on 21/11/94 save that the word “amended” to the caption on the said “appellant’s brief’. Counsel then submitted that since an amended process of court relates back to the date the amended process was filed, the “amended” appellant’s brief filed on 19/9/95 must be taken to have been filed on 21/11/94 when the first appellant’s brief was first filed. When that is done, then the “amended appellant’s brief’ would have come into existence before the additional grounds of appeal no.9 and 10 which were filed on 22/12/94. Counsel relied on Sneade v. Wotherton Barytes (1904) 1 K.B. 295 and Warner v. Sampson (1959) 1 Q.B. 297 in support of his argument that court process of which amends another process previously filed relates back to the date the first process was first filed.

I do not see any merit in the argument of respondent’s counsel. It is a correct principle of law that an amended statement of claim relates back to the date the statement of claim was first filed. In other words an amended statement of claim is deemed to have been filed on the date the statement of claim was filed. But this is only a legal fiction. A legal device to attain certain ends. It does not obliterate the fact that a particular process is filed on a particular date. The “amended appellant’s brief in the instant case was filed on 19/9/95 and the additional grounds of appeal no.9 and 10 were filed on 21/12/94.

The said grounds of appeal therefore actually came into existence before the amended appellant’s brief.

In the course of argument we asked respondent’s counsel how he expected appellant’s counsel to have overcome the procedural problem. Counsel said that the appellant’s counsel should have filed a ‘fresh brief’ and not an ‘amended brief’. But in that situation, the latter brief which in substance alters the brief that had been filed earlier will still be an amended brief since its purpose is to amend an earlier brief. The preliminary objection is struck out.”

Having regard to the grounds of objection and the argument proffered in the appellant’s brief at the court below, I take the firm view that the decision arrived at by the court below set out above is right such that when objection was raised on the respondent’s brief of argument on the two additional grounds of appeal, the respondent quickly took the right steps to regularize its position. Thus, in an analogous situation in the case of Shanu v. Afribank (Nig.) Plc (2000) 13 NWLR (Pt. 684) 392 at 404 F. Ayoola, JSC held:

“The contention that this application should not be granted because a preliminary objection has been raised showing the errors in the process of the applicant’s appeal, is without substance. The applicant is not foreclosed by the preliminary objection from correcting those errors or starting the process afresh on a more appropriate footing.”

In the light of the above, the submission, that the argument proffered in respect of paragraphs 4.7 and 4.10 at page 5 of the appellant’s brief be discountenanced is of no avail. While the decision of the court below is unassailable and unimpeachable on the issue, the law governing the filing of an initial amended appeal are not the same. For while an original appeal is governed by the provisions of the Court of Appeal Act, the filing of additional grounds of appeal is governed by the Court of Appeal Rules. Thus, the principles of law as to when to file each and the non-compliance differ. While non-compliance with the act is fatal, the non-compliance with the rules is mere irregularity. See Nofiu Surakatu v. Nigerian Housing Development Society Ltd. (1981) 4 SC 20 re-affirmed in Ekwere v. The State (1981) 9 SC 4. See also Ogbomor v. The State (1985) 1 NWLR (Pt.2) 223 at 240 per Obaseki, JSC where incompetence and procedural irregularity were distinguished as two different things having different effects on a decision.

In the instant case, since there were valid subsisting grounds of appeal, the appellant’s argument that the additional grounds ought to have been filed within three months should be discountenanced. There is no statutory provision relating to filing additional grounds of appeal in the Court of Appeal Act. The issue of additional grounds of appeal is a procedural point contained in the Court of Appeal Rules. The case of Ikeme v. Anakwe (2000) 8 NWLR (Pt. 669) 484, a decision of the Court of Appeal sitting in Jos relied on is inapplicable. It relates to enlargement of time within which to file a substantive notice of appeal.

The appellant having failed to raise objection on the time frame within which the additional grounds were filed is deemed to have waived any right to object to the appeal on that point. Reliance placed by the appellant on Kossen (Nig.) Ltd. v. Savannah Bank (Nig.) Ltd (1995) 9 NWLR (Pt.420) 439, (1995) 12 SCNJ 29 at 37; Sonuga v. Anadein (1967) 1 All NLR 98 at 100; Ojomo v. Ijeh (1987) 4 NWLR (Pt. 64) 216 at 244-245 and United Bank for Africa Ltd. v. Nwora (1978) 2 LRN 149 at 155, cases relating to time frame for filing additional grounds of appeal are regarded as mere technicalities which this court has for long now been frowning at.

In the light of the foregoing, my answer to issue number one as framed by the respondent is in the affirmative and consequently I proceed to dismiss ground one of the amended notice of appeal.

ISSUE 2

This issue which the appellant submits relates to grounds two, three, four, five and six of the grounds of appeal attacks the dismissal of the appellant’s claim by the court below on the ground C that it did not fulfil the conditions stipulated in exhibit 75 and/or that the respondent was not in breach of the contract with it (appellant) respecting the performance bond or deed of guarantee for the sum of N300,000.00 (Three hundred thousand naira). Learned counsel for the appellant after pointing out that this issue calls for the examination of the question whether the appellant discharged the requisite burden of proof upon it as to entitle it to its claim in special damages which has nothing to do with an order of specific performance submitted that the point of departure is to restate that the claim of the appellant is for specific damages in the sum of N4,707,752.800 (Four million, seven hundred and seven thousand, seven hundred and fifty-two naira, eight kobo) for breach of contract to provide N300,000.00 facility or performance bond or executed deed of guarantee. After referring us to paragraph 9 of the amended statement of claim at page 38 of the record learned counsel asked what were the facts grounding it as pleaded

The appellant can confirm as common ground that it made application to the respondent requesting for bank guarantee on the lifting of petroleum products from Nigeria National Petroleum Corporation (NNPC) from any depot in the Federation. The application is exhibit ’74’. That the respondent gave approval for the performance bond of N300,000.00 vide exhibit ’75’; that as expected, the appellant formally accepted the facility vide exhibit ’76’. Surprisingly, it is maintained, the respondent cancelled the facility vide exhibit 89 on the pre that the appellant requested for an increase in the amount to be covered by the performance bond from N300,000.00 to N539,000.00 adding that there was no basis or justification for the cancellation of the said facility. After referring us unequivocally to several paragraphs of the further amended statement of claim to show that it fulfilled the conditions stipulated in exhibit ’75’, the respondent admittedly denied same in its own amended statement of defence. It (respondent) conceded though, that in point of fact, it perfected the deed of legal mortgage and charged the expenses against the appellant’s account. The appellant, it is stressed, had said in his testimony in court that it complied with all the conditions stipulated in exhibit ’75’ – evidence in support of which PW.1 eloquently supported both in examination-in-chief and under cross-examination which remained unshakable.

Besides oral evidence in support of appellant’s averments in its pleading on this score, it was maintained, there was equally overwhelming documentary evidence to corroborate the oral testimony. For instance, exhibit ’77’ is the deed of legal mortgage as required by the first condition in exhibit ’75’, exhibits ’78’ and ’79’ are the debit notes to show that the deed of legal mortgage was duly stamped and registered; Exhibits ’80’, ’81, and ’82’ are relevant tax clearance certificates submitted to the respondent in compliance as requested while exhibit ’90’ confirms that the appellant met the necessary conditions. So also is exhibit 92 emphasising that exhibit 89 which cancelled the facility did not suggest for a moment that it was so cancelled because the appellant did not fulfil the conditions stipulated in exhibit 75. Far from it, adding that the said exhibit ’89’ gave a different reason, namely, increase in amount to be covered by the performance bond.

On the other hand, it was stressed, DW.1 made a futile attempt to expand the scope of exhibit ’75’ stating at the concluding part of his evidence-in-chief thus:

“The performance bond of N300,000.00 was not released because the plaintiff company did not fulfil the defendant company’s conditions.”

However, it was maintained, the said DW.1 gave himself away under cross-examination so much so that his claim that the appellant did not fulfil the conditions in exhibit ’75’ in examination-in-chief can only be taken with a pinch of salt and that he conceded this much under cross-examination when he said:

“I do not know about the submission of tax clearance certificate because it was not submitted to our branch but to the area office; if any document relating to the conditions are submitted to the head office or area office or area office I would not know. ”

Nothing, it was further contended, could be farther from the truth. Little wonder that the appellant urged the respondent vide exhibit 88 to release the deed of guarantee having completed all formalities. The trial court, it was pointed out, found as a fact that the cancellation of the deed of guarantee was not based on non- fulfillment of conditions under exhibit 75; that the trial court equally came to the conclusion by agreeing with appellant’s counsel that the respondent cannot bring the contract to an end after its conclusion and proceeded to hold that exhibit 89 is tantamount to breach of contract which entitles the appellant to damages.

It was submitted that on the basis of evidence adduced in this case it discharged the burden of proof that lay upon it, adding that the respondent was unable to controvert in essential particulars and/or diminish the utility of appellant’s evidence that it fulfilled the conditions in exhibit 75. It was further submitted that it is the law that where evidence is adduced on an issue and the same is not challenged under cross-examination, it is not right to disbelieve such evidence without giving sufficient reasons for doing so. Vide Ikuomola v. Oniwaya (1990) 3 NWLR (Pt. 146) 617. For the proposition that it is settled law that evidence which is uncontroverted ought to be accepted, see the cases of Ogwna Associated Co. ltd v. I.B.W.A. ltd (1988) 1 NWLR (Pt.73) 658; Morah v. Okwuayanga (1990) 1 NWLR (Pt.125) 225; Egbunike v. A.C.B. (1995) 2 NWLR (Pt.375) 34, (1995) 2 SCNJ 58 at 75; Musa v. Yerima (1997) 7 NWLR (Pt.511) 27, (1997) 7 SCNJ 109 at 123, and Otuedon v. Olughor (1997) 9 NWLR (Pt.521) 355, (1997) 7 SCNJ 411 at 434.

The court below, it is further submitted in its judgment, faulted the cancellation of the facility by the respondent vide exhibit 89 just because the appellant asked for additional facility when he said:

“It may be correct that the defendant was wrong to have cancelled plaintiff’s request for N300,000.00 facility vide exhibit 89 just because the plaintiff had asked for an additional facility of N239,000.00. I think the two applications were separate and that they should have been so treated by the defendant.”

It was further submitted that the above strictures of the court below knocked the bottom out of the pretentious reason given in exhibit 89 by the appellant for the cancellation of the facility. That reason, it was submitted, collapses like a pack of cards and the appellant stood vindicated. In any case, the appellant contended, having confined itself to the sole reason in exhibit 89, the respondent is estopped from adducing an additional reason i.e. non-fulfillment of the conditions in exhibit 75 as another ground for cancelling the facility. Section 151 of the Evidence Act is relevant on the issue of estoppel operates in this case to prevent the respondent from improvising another reason for cancellation of the facility. Reliance was placed on the cases of Rotimi v. kUforiji (1999) 6 NWLR (Pt.606) 305 at 326 – 327; Iga v. Amakiri (1976) 11 SC 1 at 12 and Ehidimhen v. Musa (2000) 8 NWLR (Pt. 669) 540 at 556.

On the burden of proof as it relates to the claim for special damages by the appellant, learned counsel for him (appellant) submitted how pertinently the court below profoundly expressed its satisfaction therewith when it positively found in the lead judgment thus:

“I think that the plaintiff in this case has pleaded the details of the special damages claimed as required by law. As to whether the plaintiff called satisfactory evidence to prove the special damages claimed, it is my view that the plaintiff did call satisfactory evidence.”

Surprisingly, and in a rather disappointing anti climax, learned appellant’s counsel submitted, the court below nevertheless made an order allowing the respondent’s appeal, set aside its judgment and dismissed the appellant’s suit. In coming to this conclusion, it was maintained, the court below nevertheless set aside the judgment of the trial court awarding damages in the sum of N4,707,752.00 to the appellant and made an order dismissing appellant’s suit of the certified but unauthenticated true copy of the lead judgment. In coming to this conclusion, it was stressed, the court had held that the respondent was not in breach of the contract and that the appellant had failed to meet the conditions set by the respondent. It is further the contention of the appellant that the court below acted erroneously in interfering with sound findings of facts of the trial court by setting same aside and dismissing appellant’s case, the issue of satisfaction or non-satisfaction of the conditions in exhibit 75 being one based on the credibility of the witnesses against the backdrop of their evidence. That being so, the appellant contended learned counsel, the trial court that saw, listened and watched the parties’ witnesses was in a better position to properly assess those witnesses. A fortiori, the court below was not justified in interfering with evidence based on credibility. The cases of Iledare v. Ajagbonna (1997) 6 NWLR (Pt.507) 1, (1997) 10 SCNJ 33; Agbabiaka v. Saibu (1998) 10 NWLR (Pt. 571) 534 at 546; Odiba v. Muemue (1999) 10 NWLR (Pt. 622) 174 at 184 were relied on.

It is settled law, it was further submitted, that evaluation of evidence and ascription of probative value falls within the domain of the trial court and as such the Appeal Court will not interfere and substitute its own view thereof unless such is shown to be perverse. The cases of Dakur v. Dapal (1998) 10 NWLR (Pt. 571) 573 at 586; Enang v. Adu (1981) 11 – 12 SC 25 at 290; Agbabiaka v. Saibu (supra) at 184 were cited in support thereof.

As in the case in hand, there is no perverseness on the part of the trial court in the evaluation of evidence before it as well as the value attached thereto; it was further submitted, hence it is unnecessary to interfere with same. In any event, contended the appellant, having come to the conclusion that it (appellant) sufficiently pleaded and satisfactorily proved special damages, the ultimate dismissal of its suit by the same court is manifestly incongruous and irreconcilable with that conclusion, adding that the logic is simple. Thus maintained the appellant, if it satisfactorily called evidence in proof of its special damages claimed, as the court below held it did, the appellant was entitled to judgment. The appellant having demonstrated it had been wronged by the respondent, the principle of law, which says where there is a wrong, there must be a remedy – the latin maxim being ubi jus ibi remedium.

After submitting that the case of Coker v. Ajewole (1976) 9 SC 17 at 28 – 29 relied on by the court below is not on all fours with that at hand, learned counsel for the appellant argued that while Coker v. Ajewole (supra) deals with specific performance, the present case is for breach of contract; it being the principle of law that every case is to be considered on its peculiar nature and characteristics. The pith and substance of the foregoing submissions, it was finally argued, is that having discharged the burden of proof inter alia to the effect that the appellant fulfilled the conditions of exhibit 75, the peremptory cancellation of the facility by the respondent contained in exhibit 89 thereby occasioning loss to the appellant, is inexcusable and indefensible. The dismissal of the appellant’s case, it was finally submitted, is unjustifiable. The end result is that, we are finally urged to intervene by resolving this issue in favour of the appellant.

This second issue for determination overlaps grounds 2 and 5 of the amended notice of appeal both of which are challenging the portion of the judgment of the court below wherein it held:

“It is apparent from the extracts of the parties pleadings reproduced above that parties joined issues on conditions which would grant plaintiff’s request for a performance bond or executed deed of guarantee for N300,000.00. Did the plaintiff lead satisfactory evidence on the point”

With respect to the learned Judge I am unable to agree with him that the plaintiff proved that he had satisfied the conditions in exhibit 75.”

“I am satisfied that there was no evidence before lower court upon which it could have come to the conclusion that the plaintiff met the conditions in exhibit 75.” “Since the plaintiff did not show that he had met conditions in exhibit 75, which conditions he ought first to have met before calling on the plaintiff to release the facility, it is my view that plaintiff’s case ought to have been dismissed in its entirety.

The above decision did not satisfy the appellant in the least, appellant in paragraph 5.04 of the amended appellant’s brief argued that “there was no basis or justification for cancellation of the said facility.

With utmost respect to appellant’s counsel, I take the view that the judgment of the court below is perfectly right, and its decision unassailable as well as unimpeachable on that issue.

At the trial, the parties exchanged amended pleadings where issues were clearly joined on all material points. See Ehimare v. Emhonyon (1985) 1 NWLR (pt.2) 177 at 183. See also pages 22- 28 of the record viz-a-viz paragraphs 5, 6, 7, 8, 10, 11 and 12 of the amended statement of defence. The plaintiff (appellant) it ought to be stressed, has the onus to prove how the terms and conditions were actually met. The appellant made futile attempts to discharge onus of proof on it by calling its managing director (PW.1) and relevant evidence adduced through him was to the effect that:

“The defendant company approved guaranteeing our company to tune of N300,000.00 with some conditions which we complied. The letter of approval was in writing.

Having accepted the conditions in exhibit 75, our company fulfilled all the conditions ……………………

The defendant later cancelled the deed of guarantee earlier approved to us.”

From the evidence of PW.1 (supra), it is palpable that the appellant misconceived the requirements of establishing a binding contract with the defendant/respondent. This is because exhibit 75 was not an outright approval. It has some conditions attached to it. From the evidence of PW.1 it is clear that the appellant misconceived the requirements of establishing a binding contract with the respondent. Clearly, exhibit 75 cannot by its purport be designated an outright approval. Indeed, it has some conditions attached to it as borne out on pages 175 and 176 of the record wherein it states inter alia:

“We refer to your letter dated 8th May, 1989 applying for a bank guarantee on the lifting of petroleum products from Nigerian National Petroleum Corporation, and are pleased to convey our approval on the following terms and conditions:

6. CONDITIONS:

Release of the executed performance guarantee to be subject to:

(i) Execution of the deed of legal mortgage over property covered by certificate of occupancy No. 0136.

(ii) Taking comprehensive insurance cover of pledged property with our interest duly noted.

(iii) Submission of company’s recent past three (3) years audited accounts.

(iv) Written acceptance of the terms and conditions governing the facility.

The executed deed of guarantee is being held in our office (Rafin-Kada) until item six subsection (i) and (iv) of this letter is fulfilled.” (Italics above is mine).

It must be remembered that for a contract to come into being in law there must have been a definite offer by the offeror and a definite acceptance by the offeree. See Ajayi-Obe v. Executive Secretary (1975) 3 SC 1 at 6 – 7.

What the whole negotiation on this contract connotes in my view, is that it was made conditional. In other words, what in paragraph 6 of exhibit 75 is said to be “subject to” has been held in the case of Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 at 542 C per. Obaseki, JSC, as follows:

”The expression “subject to” subordinates the provisions of the subject section to the section referred to which is intended not to be affected by the provisions of the latter.” and in Labiyi v. Anretiola (1992) 8 NWLR (Pt.258) 139 at 163 ‘E2’80” 164 where Karibi-Whyte, JSC, defined the words as follows:

“The phrase “subject to” in the section is significant. The expression is often used in statutes to introduce a condition, a proviso, a restriction and indeed a limitation – see Oke v. Oke (1974) 1 All NLR (Pt. 1) 443. The effect is that the expression evinces an intention to subordinate the provisions of the subject to the section referred to which is intended not to be affected by the provisions of the latter. In other words, where the expression is used at the commencement of a statute, as in section 1(2) of the Decree No.1 of 1984, it implies that what the sub-section is “subject to” shall govern, control and prevail over what follows in that section or subsection of the enactment.”

The phrase ‘subject to,’ from the con it is used, thus makes it mandatory for the appellant to satisfy all the conditions in exhibit 75 before a legally binding contract can take place. See the case of Messrs Sulaiman and Bros. v. Hans Mehr of Hamburg (1957) SCNLR 261 at 263 where De Lestang, FJ. held inter alia:

“Exhibit B expressly says that the sale is “subject to confirmation from Messrs Hans Mehr of Hamburg,” and until that confirmation there can be no concluded contract. In other words, what we have here is a conditional sale which, until the condition is fulfilled cannot become a binding contract.”

The defendant’s evidence as emanating from its branch manager (DW.1), Nanle Hosea Kasham, went like this:

“We did not give the plaintiff the performance bond because our conditions were not met. The conditions are those contained in exhibit 75. When the plaintiff did not meet our conditions we approached the plaintiff company in writing. On receipt of exhibit 88 (which the witness identified), we insisted that the performance bond would not be released until our conditions are met. I insist on the fulfillment of our conditions before the release of the performance bond not based on my discretion but on an instruction from the head office of the defendant company. The instruction of the head office is contained in exhibit 95.”

Thus, the court below in exercise of its judicial powers carefully reviewed this case and came to the conclusion, rightly in my view, that:

“It is obvious from the contents of exhibit 96 reproduced above that as at 3I/5/90, the defendant even if in a tentative language was still stating that the plaintiff had not fulfilled two of the four conditions stated in exhibit 75.”

“Throughout the length and breadth of the trial, the plaintiff did not tender any letter wherein it reacted to the defendant’s letter exhibit 96 which alleged that the plaintiff had not met the second and third conditions stipulated in exhibit 75 namely:”

“Notwithstanding the state of the pleading of parties and the evidence of DW.1 that the plaintiff did not meet the conditions in exhibit 75, the plaintiff did not tender a copy of the comprehensive insurance cover on the pledged property which it said it had previously sent to the defendant. Neither did the plaintiff produce before the lower court copies of the three years audited account of the plaintiff company, which it said it had previously forwarded to the defendant. The plaintiff’s managing director just testified blandly that the plaintiff had met the conditions in exhibit 75 without stating how this was done.

Ultimately, the defendant vide exhibit 89 written on 1st July, 1991, wrote to the plaintiff canceling the earlier offer.”

“Since the plaintiff did not show that he had met the conditions in exhibit 75, which conditions he ought first to have met before calling on the plaintiff to release the facility, it is my view that plaintiff’s case ought to have been dismissed in its entirety.”

The appellant has contended that the court below erroneously interferred with the findings of the trial court which has not been demonstrated to be perverse. But this is not correct because the law is that while it is normally the prerogative of the trial court to admit, assess and consider evidence, an appeal court can in appropriate circumstances such as where the findings of the trial court were perverse or the use made of a document goes beyond its evidential value, particularly in respect of documentary evidence, reconsider and reassess the evidence and apply it if the justice of the case so required. See Adeleke v. Iyanda (2001) 13 NWLR (Pt.729) 1 at 20 B – F per Uwaifo, JSC. A careful examination of the oral and documentary evidence on record reveals that the findings of the trial court were perverse and were rightly interferred with by the court below.

Exhibit 75 gave terms and conditions to be met. All the parties agreed to these. To satisfy the court that it met all the four conditions to bring the negotiations to a legally binding contract, the appellant ought to have showed how the remaining two items listed in exhibit 96 were met. Exhibit 96 is a letter dated 13/5/90 from the respondent to the appellant, which states:

“RELEASE OF PERFORMANCE BOND

We are in receipt of your letter dated 29th May, 1990 requesting we should release your guarantee (performance bond). We wish to reiterate the fact that we still are being guided by the four conditions communicated to you vide our letter ref: RK/IS/II/TOMG/89 of 30th October, 1990, regarding the release of the performance bond. As we are yet to convince ourselves you have met the two remaining conditions here:

1. Taking a comprehensive insurance cover of the pledged property with our interest duly (sic) noted.
2. Submitting your company’s recent past three (3) years audited accounts. We await your compliance to the above two items before releasing the performance bond.”

(See page 208 of the record of appeal).

From the evidence on record, it is clear that there is a condition precedent in the parties arrangement. It is trite law that once a condition precedent is incorporated into an agreement, that condition precedent must be fulfilled before the effect can flow. All conditions are (a) conditions precedent i.e. the sine qua non to getting the thing; or conditions subsequent, which keep and continue the thing (ibid). As to when conditions are precedent or subsequent, see 30 Law Journal 686; Porter v. Shephard 6 T.B. 665, Cooper v. London, Brighton & Southern Railway 4 Ex. D88; Barnard v. Faber (1893) 1 Q.B.340, cited WARRANTY; Horrigan v. Horrigan (1904) 1 Ir. R.22, 271 (Stroud’s Judicial Dictionary Vol. 1A – e page 538). See also the case of Nigerian Bank for Commerce and Industry v. Integrated Gas (Nig.) Ltd. (1999) 8 NWLR (Pt.613) 119 at 127 G-H wherein Aderemi, J.C.A. held as follows:

“By exhibits F and G, the parties have entered into what, in law, is a conditional contract, the condition precedent must happen before either party becomes bound by the contract. A condition must be fulfilled before the effect can follow.”

In a letter dated 8/6/90 admitted as exhibit 92 contained at page 196 of the record, the appellant wrote to the respondent stating inter alia:

“We know as a fact and our records can speak for itself (sic) that when we were forwarding the documents in respect of it to Kano, we sent our three years audited accounts. We know very well that the comprehensive insurance has been made and given to them as well i.e. the receipt of the payment of the insurance has been given to them and they have a record of it. The evidence of payment is clear and by the insurance policy, the property is covered.”

From exhibit 92 one fundamental defect that easily comes to light is that appellant’s application for the performance bond and every other letter from the appellant were sent to the respondent’s branch in Rafin Kada in Taraba State. To avoid the consequences of its neglect to fulfill the conditions, the appellant alleged in exhibit 92 that it submitted the remaining documents to the respondent’s Kano branch. Why the sudden change of destination of the appellant’s documents, one may ask The respondent, it must be noted denied receipt of such documents in any of its branches. As the respondent denied receipt of such documents in any of its branches and both parties joined issues as to whether or not the appellant fulfilled the preconditions for there to be a binding contract between them, in view of the state of the pleadings, the onus lay on the appellant to adduce convincing evidence that exhibit 92 was duly delivered to the respondent. Thus, as Iguh, JSC put it in Ajuwon v. Akanni (1993) 9 NWLR (Pt. 316) 182 at 200:

“It is one thing to aver a material fact in issue in one’s pleadings and quite a different thing to establish such a fact by evidence. Where a material fact is pleaded and is either denied or disputed by the other side, the onus of proof clearly rests on he who asserts such a fact to establish the same by evidence. An averment in pleadings is not and does not tantamount to evidence and must therefore be established by satisfactory evidence unless the same is expressly admitted. ” (Italics is mine for emphasis).

Unable to discharge the onus, the appellant sought solace in an answer given by the respondent’s witness (DW.1) to the effect that he would not know if the remaining documents were delivered in the respondent’s Kano office. The appellant in paragraph 5.10 of the amended appellant’s brief submitted that the evidence of the respondent’s document was forwarded by the appellant to the respondent’s office, amounts to an admission. With respect to the appellant, an answer that someone is not aware of the existence of a fact is not an admission that the thing is actually in existence.

It is trite law that a witness cannot admit facts not within its knowledge and the fact that the appellant’s witness exhibited ignorance as to whether or not the alleged documents were received in the appellant’s Kano office does not amount to an admission that the respondent received same. In civil cases, it is trite law that an admission by a person of fact of which he knows nothing is of no evidential value vide Adeyemi v. State (1991) 6 NWLR (Pt. 195) 1 at 42 D-E. The respondent having denied knowledge of the receipt of the documents in its Kano office, the appellant would have produced evidence of postage and delivery to Kano but that this it failed to do. See Nlewedim v. Uduma (1995) 6 NWLR (Pt A02) 383. The failure of the appellant to satisfactorily prove that the remaining documents were duly delivered to the respondent is fatal to its (appellant’s) case. As has been demonstrated hereinbefore, exhibit 75 clearly shows that the transaction between the parties is a conditional one. To claim benefit under the contract, the appellant must establish that it satisfied all (not some of) the conditions.

In the case of Olanlege v. Afro Continental Nigeria Ltd. (1996) 7 NWLR (Pt. 458) 29 at 46 Iguh, JSC held:

“One of the fundamental principles of the law of contract is that the parties must reach a consensus ad idem in respect of the terms thereof otherwise the contract cannot be regarded as legally binding and enforceable.

The burden of proof of the existence of a term of an agreement squarely rests on the party asserting such a term. It is clearly a matter of evidence, which has to be established by the party who asserts it. Failure to establish a vital term of a contract, where its existence is a conditio sine qua non towards the successful prosecution of a suit upon which the contract is founded, renders such a suit subject to dismissal.”

From the foregoing, I am of the firm view that in a case of contract, like the instant case, where there is a fundamental term in the making of any term left unaccomplished vitiates the contract. See Adebanjo v. Brown (1990) 3 NWLR (Pt.141) 661 at 689 per Agbaje, JSC wherein the learned Justice held:

“The point is covered by the general principle that where there is a fundamental term left undecided there is no contract.”

For, as Achike JSC put it more pointedly in Sparkling Breweries Ltd. v. V.B.N. Ltd. (2001) 15 NWLR (Pt. 737) 539 at 567:

“Indeed, it became obvious that where some of the conditions precedent for the issuance of letters of credit were not performed, it was extremely difficult, in legal circles to appreciate how one can either picture the existence of the alleged contract or objectively analyse the fancied contract between the parties in terms of ‘offer’ and ‘acceptance’.”

See also the case of Okechukwu v. Onuorah (2000) 15 NWLR (Pt. 691) 597 at 614 – 615 where Iguh, JSC quoted with approval the decision of Obaseki, JSC in U.B.A. Ltd. v. Tejumola & Sons Ltd. (1988) 2 NWLR (Pt.79) 662 at 686 where it was held:

“It is settled by authorities that where a contract is subject to the happening of a contingency that contract only becomes enforceable provided the event has occurred or the contingency has happened. Where a date for commencement of a lease is not specified but stated by reference to the happening of a contingency which is certain in time until the contingency happens, there is no enforceable lease.” See also Ajayi-Obe v. Executive Secretary (1975) 3 SC 1 at 6-7.”

Consequently, I hold that the appellant’s letter of acceptance is not enough to make the transaction a legally binding one. See lnnih v. Ferado Agro & Co. Ltd. (1990) 5 NWLR (Pt. 152) 604 at 622 D – E where the Court of Appeal (per Kolawole, J.CA) held as follows:

“In the instant case the acceptance is not operative for failure to fulfil all the essential components of an acceptance.”

Thus, as the appellant failed to meet the whole conditions in exhibit 75, there could be no conclusive contract between the parties.

A valid contract between parties may be discharged in one of four ways known to law, viz:

(i) By Performance,

(ii) By Express Agreement,

(iii) By the Doctrine of Frustration and

(iv) By Breach

See Cheshire and Fifoot, 9th Edition, page 521.

In the instant case the applicable way of discharging exhibit ’75’ is the last method. However, that option never availed the appellant.

Issue 2 is accordingly answered in the affirmative and grounds 2 and 5 of the amended notice of appeal are hereby dismissed.

ISSUE NO. 3

This third issue for determination which asks whether the appellant is entitled to the award relates to grounds three, four and six of the amended notice of appeal.

Towards the concluding end of the judgment of the court below Oguntade, J.C.A., who delivered the leading judgment held as follows:

“As to whether the plaintiff called satisfactory evidence to prove the special damages claimed, it is my view that the plaintiff did call satisfactory evidence. This is not however to say that the lower court was right to have made the award.”

The important question that follows is – was the plaintiff entitled to the award made in his (sic) favour I think not.”

I held however that defendant was not in breach of its contract with the plaintiff and that it was the plaintiff that failed to meet the conditions set by the defendant. The result is that this appeal succeeds. The judgment of Audu, J. at Wukari High Court of Taraba State awarding a sum of N4,700,752.00 as damages to the plaintiff is set aside. In substitution therefore, I make an order dismissing plaintiff’s suit.”

The appellant disagreed with the decision set out in the extract above and in its amended appellant’s brief contended that it proved its case and should be entitled to the award made by the trial court.

It is an established principle of practice that in a claim for unliquidated damages, even if the trial court finds against the claimant, it is desirable that the court should indicate its views on the issue of damages and its assessment of them for the assistance of the Court of Appeal, as depending on the course taken by the appeal, these views and figures may become extremely useful. See Adeyemi & Ors. v Bamidele & Ors. (1968) 1 All NLR 31 at pages 38 – 39. See also Harrison v. National Coal Board (1950) 1 K.B. 466 at 477. Since the appellant woefully failed to establish its claim, it is not entitled to the relief awarded it by the trial court on the evidence adduced thereat. Consequently, the court below was justified in setting aside the trial court’s judgment in which damages were awarded. Accordingly, I dismiss the appellant’s case in its entirety.

In sum, this appeal lacks merit and I accordingly dismiss it with N10,000.00 costs to the respondent.

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SC.58/1997