Baliol Nigeria Ltd V Navcon Nigeria Ltd (2010)
LAWGLOBAL HUB Lead Judgment Report
F. OGBUAGU, JSC.
This is an appeal against the Judgment of the Court of Appeal, Lagos Division (hereinafter called “the court below”) delivered on 17th December, 2002 allowing the appeal of the Respondent and setting aside, the Judgment of the Lagos State High Court delivered on 26th October, 2000 – per Fafiade, J. and dismissing the Suit filed by the Plaintiff/Appellant.
Dissatisfied with the said Judgment, the Appellant has appealed to this Court on four (4) grounds of appeal with the leave of this Court. It has formulated four (4) issues for determination, namely;
“( 1) Whether the Court of Appeal was correct in its view that there was no valid contract between the
Plaintiff/Appellant and the Defendant/Respondent for the supply of Sodium Sulphate in spite of the evidence on the record before it.
(2) Whether it was right for the Court of Appeal to hold that the contract between the Appellant and the Respondents which was expressly referred to be an “Irrevocable Agreement”, was a Sale of Goods Agreement.
(3) Whether the Court of Appeal in coming to its decision, which is the subject matter of this appeal, did not re-write the agreement of the parties contrary to established principles of law.
(4) Whether the vagness, omission or mistake of the learned trial judge to make a specific monetary award at the end of her judgment in favour of the Plaintiff/Appellant was such a grave error of law which occasioned a miscarriage of justice as to render the whole judgment of the trial court a nullity or was it no more than a mere irregularity which the Court of Appeal could have cured in the interest of justice”.
I note as rightly stated in paragraph 5.0 of the Respondent’s Brief at page 7 that it is not stated in the Brief under which ground or grounds of Appeal the above issues are distilled from. It is now firmly settled in a
plethora of decided authorities by this Court that any issue or issues which is or are not formulated from a ground of appeal, is incompetent and must be ignored or discountenanced and struck out.See the cases
of Management Enterprises v. Olusanya (1987) 2 NWLR (Pt.55) 179; (1987) 4 SCNJ 110 and Alli & anor. v. Chief Alesinloye & 8 ors. (2000) 6 NWLR (Pt.660) 177 @ 212; (2000) 4 SCNJ 264. In other words, the Court lacks the power to deal with an issue or issues not formulated or distilled from any ground of appeal. See the cases of Kraus Thompson Organisation Ltd v. University of Calabar (2004) 4 SCNJ 101 @ 133 and Mojekwu v. Mrs. Iwuchukwu (2004) 4 SCNJ 180.
On its part the Respondent has formulated three (3) issues for determination, namely,
“(i) Was the agreement between the Appellant and the Respondent a Sale of Good Agreement.
(ii) Were the Learned Justices of Court of Appeal (sic) right in holding that paragraph 1 of the Amended Statement of Defence did not constitute an admission of the irrevocability of the agreement of 7th October, 1994.
(iii) Were the Learned Justices of the Court of Appeal right in holding that had they found that there was a binding agreement between the parties, they would have awarded to the Plaintiff (now Appellant) only N1, 409, 080.00”.
I note that it is stated in the said Brief of Argument that the above issues are formulated from grounds 1, 2 and 3 of the Grounds of Appeal.
When this Appeal came up for hearing on 5th February, 2010, both learned counsel for the parties, adopted their respective Brief.
While the leading learned counsel for the Appellant – Ajisegiri, Esqr., urged the Court to allow the appeal, Achuku, Esqr., – the learned counsel for the Respondent, urged the Court to dismiss the appeal in its entirety.
Judgment was thereafter reserved till to-day.
The facts briefly stated are that the Appellant, had sued the Respondent in Suit No. LD/130/95 at the Lagos High Court claiming the sum of N9,000.000.00 (Nine Million Naira) as damages for breach of contract or as its anticipated profit under an Agreement dated 7th October, 1994 made between the Appellant and the Respondent and alternatively for injunction and specific performance. The parties filed and exchanged pleadings. After the hearing, the learned trial Judge Fafiade, J. found in favour of the Appellant. Dissatisfied, the Respondent appealed to the court below which allowed the appeal, set aside the said Judgment of the trial court and dismissed the Appellant’s suit, hence the instant appeal.
The Appellant demanded for an upward review due to the downward slide of the Naira and wrote letters to this effect.. Exhibit B, is the Agreement, which speaks for itself. The Respondent contend that since there was no agreement, there was no enforceable contract. I note that the learned trial Judge held that the Agreement, was irrevocable. Exhibit B is the written contract. I see no document whatsoever in the Records evidencing the alleged or subsequent oral agreement ever produced by the Respondent.
It may be necessary for me to state that from the Records, the Appellant, had obtained a Local Purchase Order (LPO) from Messrs PZ Industries Ltd. (hereinafter called “the Company”) to supply to it, two thousand (2000) Metric Tones of Sodium Sulphate at the cost of N43,500.00 (forty-three Million five hundred thousand Naira). The Appellant approached the Respondent to execute the said LPO by importing the said Chemicals and supply them to the said Company.
This approach, eventually led or brought about the said Agreement of 7th October, 1994 which was said to be irrevocable. It is noted by me that the Company, refused the Appellant’s demand for an upward review of the LPO’s price value to accommodate the increase in the landing or landed cost of the said chemicals due to the said downward slide in the value of the Naira to the U.S. Dollars. The Appellant, eventually or subsequently, sued the Respondent claiming as above stated. The anticipated profit of N9, 000.00 is alleged or claimed by the Appellant, as the sum it would have earned had the aforesaid LPG been executed still insisting, that the said Agreement was irrevocable. The Appellant submitted the landing/landed cost of the. said chemicals, which eventually, came to the sum of N21,045.10 as against the sum of N17,250.00 which the trial court upheld.
The court below – per Oguntade, JCA (as he then was before becoming a JSC but now retired) at pages 201, 201 and 204 made some findings of fact and holdings. It seems to me the said Agreement between the parties, cannot and could not be described as one covered by Sales of Goods. In fact, there are two Agreements in this matter. One being the one between the parties to this appeal dated 7th October, 1994 and the other, being the one between the Appellant and the Company evidenced by the LPO No. 607451 dated 20th September, 1994. In the Agreement dated 7th October, 1994, there was a binding agreement or contract as regards the price of the chemicals.
In the instant case, I, with respect, do not agree with the Respondent in its submission in its Brief that since there was no agreement on the price to be paid for the Sodium Sulphate or the price the Respondent could be held bound to and liable, that there was not and there could not be any binding contract. The Agreement is clearly stated to be “irrevocable”, as that position had not been altered in writing and therefore, there is/was a final and binding contract in respect of which, the Respondent, was clearly in breach of as rightly found and held by the trial court.
The court below stated at page 204 of the Records, inter alia, as follows:
“In contracts for sale of goods it is of the utmost importance that parties, to the contract come to an agreement as to the price of the goods being sold. In this cause there was no such agreement. The conclusion to be arrived at is that there was no enforceable contract entered between the parties”.
With the greatest respect, Exhibit B has nothing to do with Sales of Goods or the Act in respect thereto.
Now, Exhibit B is in writing. It is now settled that a contract which must in law be in writing, can only be varied by an agreement in writing. See the case of Morris v. Baron & Co. (1918) A.C. 1 @ 39. In other words, where a contract is in writing, any agreement which seeks to vary the original agreement must itself be in writing.See the cases of John Holt Ltd. v. Stephen Lafe (1938) 15 NLR 14 and Bjou (Nig) Ltd. v. Osidoroewo (1992) 6 NWLR (Pt.249) 463 @ 649. The law is also well settled that a latter agreement by parties to an original contract to extinguish the rights and obligations that the original contract has created, is itself a binding contract, but the latter agreement, must either (a) be made under seal or (b) be supported by consideration. See the case of Grover v. I.T.I. Ltd. (1976) 11 S.C. 19 @ 27 – 28. Where however, the contract is still executory, that is enough consideration. See the case of Mercantile Bank or Nigeria Ltd. v. Adalma Tanker & Bunkering Services Ltd. (1990) 5 NWLR (Pt.153) 747 @ 1765 C.A. A court cannot write a new contract for the parties. See the case of Aoyad v. Kessrawani (1956) SCNLR 83; (1956) 1 FSL 35.
A concluded contract such as in Exhibit “B”, resiling from it, will amount to a Novation. So, where a parole agreement has been reduced into writing, the best evidence is the production of the document itself. See the case of NEPA v. Elfandi (1986) 3 NWLR (Pt. 32) 884; Da Rocha v. Hussain (1958) SCNLR 280. The Respondent has not produced any document in respect of the alleged latter agreement.
The law is trite that where a document is clear and unambiguous, parole evidence cannot be led to contradict it. In other words, extrinsic evidence is basically inadmissible to add to or alter the contents of a document. See the cases of Okpanku v. Amachi (1956 -84) SCNR. 75 and Royal Exchange Nig. Ltd & 4 ors. v. Aswani ile Industries Ltd. (1991) 2 NWLR (Pt.176) 639 @ 765 C.A.
The learned trial court at page 133 of the Record, made findings of fact, inter alia, as follows:
“I find that there was a fixed price of N17,500 per metric ton of the sodium sulphate and the Defendant is bound by that agreement which agreement it failed to execute. I find that on the failure of Defendant to supply PZ Industries as per Exhibit B, Defendant had breached the agreement. See cases of Orji v. Anyaro 2000 2 NWLR Part 643 Page 1 Ratio 9, Anyaegbunam v Osake 2000 3 NWLR Part 657 Page 386 Ratio 6 and 9, Oyebadego v. Okeniyi 2000 5 NWLR Part 657. It is well settled in law that oral evidence
cannot be allowed to contradict documentary evidence. See also Section 132 of the Evidence Act Laws of the Federal Republic of Nigeria”.
I agree and this is the settled law which I have also stated in this Judgment.
At page 135 thereof, it stated inter alia, as follows:
“There is evidence that the exchange rate changed from 75% to 82% and defence witness tendered a
costing Analysis which gave the landing cost as N21, 000 plus. Defendant admitted it showed Plaintiff an LPO for N35,000. From all angles, I find Defendant breached Exhibit B, first on its failure to deliver by the end of October”.
It continued inter alia, as follows:
“Defendant failed to tender the letter by which it claimed plaintiff rescinded the agreement. Plaintiff on the other hand said he wrote a letter of protest when he realised Defendant was already offering the goods to Lever Brothers at a higher price. I am unable to come to no other decision than that Defendant when offered higher price than agreed with plaintiff opted to sell to Lever Brothers as early as 22nd February, 1995. I accept Plaintiff’s evidence and find Defendant liable to pay damages in form on the anticipated profit”.
The above is borne out from the Records. The court below by its holding, was with respect re-writing or making another Agreement for the parties. It was not entitled to do so.
In the final result, I find and hold as a fact, that there is merit in this appeal. It succeeds and I therefore, allow the appeal. I hereby and accordingly, set aside the said Judgment of the court below and in its stead, the Judgment of the trial court is hereby and accordingly restored by me. That it did not make specific monetary award in favour of the Appellant, was at most, an irregularity which did not occasion a miscarriage of justice. I so hold. I therefore make the following orders;
“(i) that there was an irrevocable Agreement between the parties and the Respondent breached the said1rrevocable Agreement by not supplying the Sodium Sulphate it agreed to supply particularly by the end of October 1994 and later on 22nd February 1995 and
(ii) that such a breach leads to the appellant sustaining a loss/damages of N7,019,840.00 which is the difference between contract value of L.P.O.:- Exhibit A and Landing cost for the delivery of the Sodium Sulphate which was N17,250.00 per metric ton as in Exhibit 13, as well as the new anticipated profit when the landing cost was N21. 045.16 per ton at the exchange rate of N82.00 to a Dollar less N500, 000. 00 (loan); that is between when exhibit B was signed and when the Sodium Sulphate arrived in Nigeria less N500,000.00 (loan) = N7,019.840.00”.
Appellant is entitled to costs in the court below which I assess and fix at N5,000.00 (five thousand naira) and in this Court, I award N50,000.00 (fifty thousand naira) costs in its favour payable to it by the Respondent.
SC.57/2003
