Delta State Agricultural Development Programme Ibusa & Ors V. Mr. Mike Iloukwu Ofonye (2007)

LawGlobal-Hub Lead Judgment Report

STANLEY SHENKO ALAGOA, J.C.A.

This is an appeal against the judgment of Odita J (as he then was) of the High Court of Justice Asaba in Delta State of Nigeria which was delivered on the 30th November 1998. The present Respondent as Plaintiff at the High Court below took out a writ of summons against the Respondents as Defendants jointly and severally claiming the sum of Two million Naira (N2,000,000.00) being special and General damages for breach of contract entered into by the Respondent and the 1st Appellant. The facts that have given rise to this claim as can be gleaned from the Respondent’s (then Plaintiffs) further amended statement of claim granted by Odita J. on the 16th December 1997 are that in 1992, the Respondent was employed by the 1st Appellant as an outgrower to plant the seeds for the use of the farms that year. He had a bumper harvest as the 1st Appellant supplied all the input. Owing to the huge success recorded by the Respondent that year (1992), the 1st Appellant again employed him the next year 1993 wherein they entered into an agreement – exhibit “1”. The Respondent went further to say that he fulfilled his own part of the contract – exhibit “1” but that the 1st Appellant refused to fulfill its own side of the contract by supplying the quantum of inputs i.e. chemicals and fertilizers despite repeated demands by the Respondent as a result of which the Respondent suffered loss and damage as he had a poor harvest, which was a direct consequence of the failure of the 1st Appellant to supply the said chemicals and fertilizers. The Appellants on the other hand in their Joint Statement of Defence of 1st, 2nd and 3rd Defendants dated 13th May 1997 (pages 45-49) of the Records joined issues with the Respondent especially in paragraphs 5 and 15 which are reproduced hereunder –

PARAGRAPH 5 – “In admitting paragraph 14 of the plaintiffs claim, 1st Defendant supplied 20 bags of fertilizer and 15 litres of chemicals but states that the supply of the above was not predicated on the contract since the 1st Defendant was not bound to supply any of the above as per the Agreement of 7th October 1993”

PARAGRAPH 15 – “The Defendants aver that the 1st Defendant is not bound to supply any quantity of inputs to the outgrower as per the contract agreement especially PART III thereof.”

At the trial in the court below, the Respondent as plaintiff testified and called three witnesses. The Respondent in proof of his case also tendered Exhibits 1, 2, 3(a)-(d) and exhibits 4-6. The Appellants as Defendants did not adduce any evidence.

At the conclusion of the trial the learned trial Judge in a considered judgment delivered on the 30th day of November 1998 found in favour of the Respondent as follows – “Now from the totality of evidence of the plaintiff and witnesses and also the Exhibits tendered, I find as facts as follows:-

1. That the plaintiff and the 1st defendant entered into an agreement Exhibit 1 in the proceedings.
2. That the 1st Defendant by Exhibit 1 was to supply the plaintiff with inputs that is fertilizer and chemicals to an agreed quantity.
3. That the 1st Defendant failed to supply the plaintiff the agreed inputs in accordance with Exhibit 1.
4. That the plaintiff performed his own part of Exhibit 1 but the defendant did not.
5. I therefore hold that the 1st defendant clearly breach Exhibit 1.

(see pages 92-93 of the Records).

The learned trial Judge then awarded Two million Naira (N2,000,000.00) special damages against the Appellants (then Defendants) jointly and severally for breach of contract entered into between the Appellants and Respondent. (See page 100 of the Records).

Dissatisfied with the judgment the Appellant appealed to the Court of Appeal. The Notice of Appeal is dated the 8th August 2001 and consists of three Grounds of Appeal and attendant particulars. Contained on pages 117-120 of the Records the said Notice of Appeal is reproduced hereunder as follows-

IN THE COURT OF APPEAL

HOLDEN AT BENIN CITY

BETWEEN: SUIT NO.A/78/96

1. DELTA STATE AGRICULTURAL DEVELOPMENT)

PROGRAMME IBUSA.)

2. MINISTRY OF AGRICULTURE)

DELTA STATE) DEFENDANTS/APPELLANTS

3. ATTORNEY-GENERAL AND COMMISSIONER)

FOR JUSTICE DELTA STATE)

AND

MR. ILOUKWU OFONYE PLAINTIFF/RESPONDENT

NOTICE OF APPEAL

TAKE NOTICE that the Defendants/Appellants being dissatisfied with the decision of the High Court of Delta State contained in the judgment of Honourable Justice M.C.U. Odita delivered on 30th November, 1998 do hereby appeal to the Court of Appeal upon the grounds set out in paragraph 3 and will at the hearing of the appeal seek the reliefs set out in paragraph 4 and the Appellants further state that the names and addresses of the persons directly affected by the Appeal are those set out in paragraph 5.

2. PART OF THE DECISION COMPLAINED OF: The whole decision.
3. GROUNDS OF APPEAL
4. The learned trial judgment erred in fact and in law when he held as follows-

“Now from the totality of evidence of the plaintiff and witnesses and also the Exhibits tendered, I find as facts as follows –

1. That the plaintiff and the 1st Defendant entered into an agreement Exhibit 1 in this proceeding.
2. That the 1st defendant by Exhibit 1 was to supply the Plaintiff with inputs that is, fertilizer and chemical to an agreed quantity.

3 That the Plaintiff performed his own part of Exhibit 1.

PARTICULARS

1. Exhibit 1 that is the Agreement between the Plaintiff and Defendant that was tendered in Evidence does not contain an agreement to supply that is fertilizers and chemicals to an agreed quantity by the 1st Defendant.
2. The Plaintiff did not comply with the terms clearly stipulated in Exhibit 1, part III (1) therein to wit: “the outgrowner shall undertake to carry out all agronomic and other production operations including rouging to obtain a good harvest.”
3. Exhibit 1 did not specify nor did it stipulate the party to supply inputs, nor did it specify the type or inputs to be supplied. Reading into Exhibit 1 that the 1st Defendant was to supply the plaintiff eighth inputs, that is fertilizer and chemicals to an agreed quantity will be doung violence to the said agreement.
4. The finding of facts made by the trial High Court is perverse and contradictory having regards to Exhibit 1 which is found as proved.

The finding of fact does not reasonably reflect the contents of Exhibits as a whole so as to be seen to be a true understanding and interpretation of the terms thereof.

2. The learned trial Judge erred in fact and in law when he failed to test the reliability of the oral Evidence against the documentary evidence tendered on the same issue.

PARTICULARS

1. Exhibits 3, 3A, 3B, 3C, and 3D are field inspection forms issued by Federal Ministry of Agriculture and Natural Resources. National Seed Certification agency and duly signed by the plaintiff also and tendered as valuation reports on the plaintiffs Farm, which scored the crops on plaintiff farm as satisfactory contrary to the oral evidence led by the plaintiff.
2. Exhibit 1 in part III (1) clearly stipulated that the plaintiff was to carry out all agronomic and other production operation including rouging contrary to his claim for special damage, and exhibits 3, 3A, 3C and 3D wherein exhibit 3C sated that the farm was weedy.
3. Exhibit 1 did not stipulate any where that the 1st Defendant was to supply 70 bags of fertilizers or 75 litres of chemicals contrary to the evidence led by the Plaintiff.

The learned trial judge erred in law and in fact when he proceeded to award judgment to the Plaintiff as special damages for restumping, loss of

PARTICULARS

1. Exhibit 1 clearly shows an the fact that the contract was in connection with production of stipulated Seeds and Cassava cutting during the 1993 cropping seasons and more.
2. The Plaintiff led evidence to show that in 1992 he entered into an agreement with 1st Defendant before he commenced with production and again in 1993 he entered into another agreement.
3. It was not in the contemplation of the parties to Exhibit 1 that the agreement should continue ad infinitum.
4. Further grounds of Appeal may be filed later with leave of Court when Record of Proceedings in furnished.
5. RELIEF SOUGHT FROM THE COURT OF APPEAL

That the Ruling/Judgment be set aside and/or reversal of the said Ruling/Judgment.

PERSONS DIRECTLY AFFECTED BY THE APPEAL:

NAME: ADDRESS

1. MR. MIKE ILOUKWU OFONYE

OGBEOBI VILLAGE EZI ANIOCHA NORTH LOCAL GOVT. AREA, DELTA STATE.

2. DELTA STATE AGRICULTURAL

C/O, THEIR COUNSEL, MINISTRY OF JUSTICE,ASABA. DELTA STATE.

DEVELOPMENT PROGRAME,IBUSA

3. MINISTRY OF AGRICULTURE)

DELTA STATE

4. ATTORNEY-GENERAL AND

COMMISSIONER FOR JUSTICE

DELTA STATE

DATED THIS 8TH DAY OF AUGUST, 2001

(SGD),

N.W.OGBOGU

MINISTRY OF JUSTICE, ASABA.

COUNSEL TO THE DEFENDANT/APPELLANT.

When this appeal came up for hearing on the 23rd November 2006, E. Ohwovoriole Counsel for the Appellant adopted and relied on the Appellants’ Brief of Argument dated 9th June 2006 and deemed filed on the 15th October 2003. He urged the court to allow the appeal. Records of this court show that the Respondent was served with the Hearing Notice for the appeal to be heard on the said 23rd November 2006 but failed to show up.

Nevertheless the court’s records show that the Respondent brought a motion dated 31st October 2005 and filed same day for –

1. An order for extension of time within which to file the Respondent’s Brief of Argument.
2. An order deeming the Respondent’s Brief of Argument attached to the affidavit in support of the motion as Exhibit “A” as properly filed and served appropriate filing fees having been paid.

This motion which was brought pursuant to order 3 Rule 4(1) of the Court of Appeal Rules 2002 and the inherent jurisdiction of this court was moved by Respondent’s counsel on the 5th June 2006 and granted by this court. By the granting of this application by this court the Brief of Argument of the Respondent is deemed to have been properly filed and served on the Appellant on the 5th June 2006. With the above scenario; the Appeal will be treated as having been duly argued in accordance with order 6 Rule 9(5) of the Court of Appeal Rules 2002 which provides as follows-

“When an appeal is called and the parties have been duly served with the notice of hearing, but if any party or any legal practitioner appearing for him does not appear to present oral argument even though briefs have been filed by all the parties concerned in the appeal the appeal will be treated as having been duly argued.” As I had earlier stated Appellant’s counsel after adopting and relying on the Appellant’s Brief of Argument urged this court to allow the appeal. Respondent’s Brief of Argument was prepared by F.N. Monyei Esq. (Respondent’s counsel) plot 222 Elibujor New Layout Prince Nwanne Street, D.L.A. Road, Asaba and on page 7 of the brief he has urged this court to dismiss the appeal as lacking in merit.

The facts leading to this appeal have already been highlighted. From the Grounds of Appeal contained in the Notice of Appeal the Appellants have distilled the following issues for the consideration and determination by the court in this appeal –

(i) Whether the Respondent (herein) established his case of breach of contract against the Appellants to be entitled to judgment.

(ii) Whether the award of two million Naira by the lower court in favour of the Respondent was justified in law having regard to the facts of the case.

These issues are contained on page 3 of the Appellants’ Brief of Argument. The Respondent on his part has, on page 3 also of his Brief of Argument formulated the following four issues for the determination of this court –

(1) Whether by oral or documentary evidence tendered by the Respondent at the trial of the action at the High Court the 1st Appellant had any obligation to perform by the Respondent.

(2) Whether the 1st Appellant fulfilled its said obligation to the Respondent.

(3) What was the extent of legal burden of proof required of the Plaintiff/Respondent in this action wherein the Defendants/Appellants could not proffer any evidence in challenge of the Plaintiff/Respondent’s case?

(4) Whether the award of N2,000,000. 00 (Two Million naira) as special damages by the lower court in favour of the Respondent was Justified in law having regard to the facts of this case.

A comparison of the issues formulated in the respective Briefs of Argument of the Appellants and Respondent shows that issue (ii) of the Appellants’ Brief is exactly the same with issue (4) of the Respondent’s Brief of argument in their wording and deals with the justification of the award of N2,000,000.00 (Two million Naira) special damages in favour of the Respondent by the trial court. Arguments with respect to issues (1) and (2) in the Respondent’s Brief which are infact treated together in the said Respondent’s Brief cover adequately the treatment of issue (i) in the Appellants’ Brief. Issue (3) in the Respondent’s brief is dealt with on page 12 of the Appellants’ Brief as part of the argument under issue 1 of the Appellants’ Brief but would appear to require a separate and distinct treatment as an issue in its own right as it deals with the legal significance of the Appellants’ failure to lead evidence in rebuttal of evidence led by the Respondent at the trial court. Therefore the issues for determination in this appeal are as follows –

ISSUE NO 1 – Whether the Respondent established his case of breach of contract against the Appellants to be entitled to judgment.

ISSUE NO 2 – What is the legal effect of the failure of the Appellants to lead evidence in rebuttal of the evidence led by the Respondent at the trial court in proof of the Respondent’s claim?

ISSUE NO.3 – Whether the award of two million Naira as special damages by the lower court in favour of the Respondent was justified in law having regard to the facts of the case.

These issues which have been formulated from the very issues formulated by the Appellants and Respondent in their respective Briefs of argument will now be discussed seriatim.

ISSUE NO 1 – Whether the Respondent established his case of breach of contract against the Appellants to be entitled to judgment.

The Appellants have submitted in their Brief of Argument that it is not in dispute in this case that the Respondent’s case is based on an alleged breach of contract and denies that the Appellants are in breach of the contract entered into with the Respondent. They submitted that a party whose claim is based on contracted rights should plead the contracts, the term which gave the right or created the obligation and what constituted the breach and have made references to paragraphs 4,7, 9, 10, 14 and 17 of the Respondent’s Further amended statement of claim which for full effect are reproduced hereunder –

“(4) On the 7th day of October 1993 the 1st Defendant entered into an agreement with the plaintiff wherein it was agreed that the plaintiff should entitled and carry out all agronomic operations on the plaintiff’s farmland measuring 14.3 hectares while the 1st Defendant should supply seeds, fertilizers and chemicals to the plaintiff.

(7) The plaintiff executed his own side of the contract satisfactorily by ploughing, harrowing and planting the crops as specified by the agreement.

(9) The plaintiff would also found and rely on the contract between him and the 1st Defendant dated 7th October 1993 entered into at Ibusa, Oshimili Local Government Area of Delta State of Nigeria.

(10) The Plaintiff avers that the 1st Defendant failed to supply the complete inputs that is, fertilizers and chemicals as stipulated in the said contract which led to the loss of the whole crops of the plaintiff in the farm.

(14) The 1st Defendant supplied only twenty (20) bags of fertilizers out of seventy bags required according to the number of seeds 1st defendant supplied to the plaintiff and only (15) litres required for the seed crops available to the plaintiff.

(17) Plaintiff avers that arising from the failure of the 1st Defendant to supply all the inputs agreed in the said agreement the plaintiff could only realize the sum of N13,000.00 out of a project sum of N309,750.00”

The Appellants went on to say that as Defendants in the lower court they joined issues with the Respondent in paragraphs 5, 6 and 15 of their Joint Statement of Defence which are reproduced below-

“(5) In admitting paragraph 14 of the Plaintiff’s claim, the 1st Defendant supplied twenty (20) bags of fertilizer and fifteen (15) litres of chemical but states that the supply of the above was not predicted on the contract since the 1st Defendant was not bound to supply any of the above as per the Agreement of 7th October 1993.

(6) In explanation to paragraph 15 of the statement of claim, the 1st Defendant admits receiving letters from plaintiff but states that it is not her duty to supply outgrower with fertilizer and chemical

(15) The Defendants aver that the 1st Defendant is not bound to supply any quantity of inputs to the outgrower as per the contract agreement especially PART III thereof”

Appellants went further to state in their Brief that the Agreement between the Appellants and the Respondent which was made on the 7th October 1993 was tendered and admitted in evidence as Exhibit 1 at the lower court and that it is common ground and the lower court so found that the said Exhibit 1 is the contract between the 1st Appellant and the Respondent. Appellant then submitted that the simple question which the Court of Appeal is being asked to determine in this issue No. 1 is whether under the contract between the 1st Appellant and the Respondent as evidenced by Exhibit 1 the 1st Appellant was required to supply Respondent with fertilizers and chemicals to an agreed quantity. In answering this question Appellant submitted that it is necessary to consider the extent of the obligations imposed on the parties by the contract (Exhibit 1) and in order to do this, the exact terms of the contract must be determined. It is, Appellants submitted, a well established principle of law that a court cannot make a contract for the parties and that parties to a contract are bound by the clear words of the contract. Reliance was placed on the case of COLLEGE OF MEDICINE UNILAG V. ADEGBILE ADEGBITE (1973) 5 sc 149 at 162.

Appellants submitted that the clause of Exhibit 1 relevant to the issue for the consideration of this court is clause 1 of part III and it is clear from this that-

(i) Exhibit 1 does not contain an agreement to supply fertilizers and chemicals to an agreed quantity by the 1st defendant (1st Appellant in this appeal)

(ii) Exhibit 1 did not specify nor did it stipulate the party to supply inputs nor did it specify the inputs to be supplied.

(iii) Contrary to the Respondent’s evidence at the lower court, there is no clause in Exhibit 1 that stipulated that the 1st Appellant was to supply 70 bags of fertilizer or 75 litres of chemical to the Respondent.

(iv) The learned trial Judge failed to test the reliability of the oral evidence of the Respondent and his witnesses against the documentary evidence tendered and admitted in evidence especially Exhibit 1.

(v) The findings of fact made by the trial Judge is perverse and contradictory having regard to Exhibit 1.

(vi) The Respondent did not comply with the terms clearly stipulated in Exhibit 1 part III.

Appellants submitted that any finding of fact that is not based on evidence is perverse. The cases of GBAFE V. GBAFE (1996) 6 NWLR PART 455 page 417 at 430 and MAKANJUOLA V. BALOGUN (1989) 3 NWLR PART 108 page 192 at 204 were relied upon. That being the case, an appellate court can interfere with and correct such an erroneous finding by the lower court, Appellants further submitted that a court would only enforce the contract made by the parties rather then make a new contract for them and such a contract must be strictly construed in the light of the terms agreed. NIGER DAMS V. LAJIDE (1973) 5 SC 207 at 222 was relied upon. It was further submitted by the Appellants that the intention of the parties to a written contract is to be gathered from the agreement to which they set their hands. The following authorities were relied upon- B.G. AND D.C. V. SPETSANI (1962) 1 All NLR 570 at 583; (1962) 2 NSCC 366. AOUAD V. KESSRA WANI (1956) NSCC 33 at 34.

On the Respondent’s part arguments with respect to this issue – NO.1 can be found on pages 4 and 5 of the Respondent’s Brief of argument under the heading ARGUMENTS: (ISSUES 1 and 2). It must again be emphasised that despite that caption the arguments relate to issue 1 i.e. whether the Respondent established his case of breach of contract against the Appellants to be entitled to judgment. Respondent has submitted in his Brief of argument that a contract is usually an agreement that creates rights and obligations between parties thereto and acknowledges that Exhibit 1 is the agreement between the Appellants and the Respondent. The Respondent submitted that a careful perusal of clause 1 of Part III of the agreement i.e. Exhibit 1 shows clearly that the obligation of the 1st Appellant i.e. Programme is to supply to the Respondent inputs which has been said to be fertilizers and chemicals. He referred to page 78 of the record of appeal lines 11 and 12. Respondent further submitted that it is important that a proper attention be given to the evidence of PW4 at page 77 of the record of appeal which evidence was that of an expert and was never challenged and so must be acted upon by this court. He referred to section 57(1) of the Evidence Act Cap E 14 Laws of the Federal of Nigeria 2004 and to the case of NWABUOKU V. OTTIH (1961) All NLR (PART 3) page 87. Respondent contended that the said expert evidence defined inputs to include fertilizers and chemicals in agricultural parlance. Respondent went further to say that a careful reading of Exhibits 2, 4, 5 and 6 clearly shows that the quarrel between the Respondent and the 1st Appellant has been the refusal of the 1st Appellant to supply the Respondent chemicals and fertilizers that she had a duty to supply to the Respondent. Respondent further submitted that there is no evidence proffered by the Appellants that show that the Appellants had no obligation to supply the Respondent chemicals and fertilizers sufficient to cultivate the several acres of farmland agreed upon between the 1st Appellant and the Respondent. On the other hand evidence of the Respondent was that he fulfilled his own obligation in the said contract and this was also strengthened by Exhibits 3(a) – 3(d) which are valuation reports offered in respect of the Respondent’s farm by National Seeds Service Report. Reference was made to page 23 lines 5-10; page 71 line 35 and page 72 line 5 of the record of appeal which according to the Respondent also show that the 1st Appellant certified after supervision that the Respondent prepared the farm in accordance with Exhibit 1. Respondent went on to say that the Appellant’s assertion at page 11 of the Appellants’ Brief that the Respondent did not comply with the terms of Exhibit 1 part 111 is clearly not supported by the records in this appeal as no such evidence was led by the Appellants who led no evidence in support of their case. Respondent went further to say that Appellant filed a statement of Defence and could not offer evidence in support thereof and therefore such pleadings which can never constitute evidence has no useful purpose in this appeal. The following authorities were relied upon – F.C.D.A. V. NAIBI (1990) 3 NWLR 270; INSURANCE BROKERS V. ATLANTIC ILES (1996) 9-10 SCNJ 171 at 1831; HOUSING CORPORATION V. EMEKWUE (1996) 1 SCNJ 98 at 133. According to the Respondent in his Brief of Argument the trial Judge’s finding that the Respondent (plaintiff in the lower court) performed his own part of Exhibit 1 but the Defendant did not is (sic) clearly well founded as same was based on credible evidence and therefore not perverse the Respondent further submitted that where facts are pleaded and no evidence is led to prove them, no onus is cast on the other party to disprove such facts. Reliance was placed on the case of EDOSOMWAN V. OGBEIFUN (1996) 4 SCNJ 21 at 33.

He went on to submit that as no evidence was led to establish any part of the Appellants’ statement of Defence, the Respondent has no onus cast on him at the trial to disprove such facts.

There is no doubt that a common ground upon which the Appellants, the Respondent and the lower court stand in agreement is that Exhibit 1 is the contract between the 1st Appellant and the Respondent. There is therefore the dire and should I say immediate need to know its contents if a meaningful discussion is to be carried out. The entire and unedited contents of Exhibit 1 (pages 121 -123 of the Record of Appeal) are therefore reproduced hereunder –

“EXHIBIT 1

DELTA AGRICULTURAL DEVELOPMENT PROGRAMME

P.M.B.1006

IBUSA

OUTGROWERS SCHEME

MEMORANDUM OF AGREEMENT FOR THE PRODUCTION OF SEEDS/CASSAVA CUTTING AS IN OUT-GROWERS

THIS AGREEMENT IS made on this 7th day of October, 1993

BETWEEN:

DELTA AGRICULTURAL DEVELOPMENT PROGRAMME, (DTADF), P.M.B. 1006, IBUSA.

Hereinafter called PROGRAMME on the first part.

AND

Mr. Mike Iloukwu Ofonye of Idumu-Onyimi/Ahaba Ogbeobi Eze, Aniocha North L.G.A., Delta State.

Hereinafter seeds and cassava cuttings. During the 1993 cropping season, on the other hand.

THIS AGREEMENT STIPULATES AS FOLLOWS:-

PART 1:

Outgrower shall apply to the Programme to grow seeds/crops/cassava cuttings.

PART II: CROPPING SPECIFICATIONS:

(i) Crop: Yam seed, Maize, Soyabeans, and Cassava cuttings.

(ii) Variety: maize (TZR) yellow & White) Cassava 30572.

(iii) Location of farm: Soyabeans Ogbeobi Ezi Yam- (Locally bought)

(iv) (Size of farm: An Area of 20 hectres.

(v) Spacing: Maize (Row-75cm) Hill spacing -23-25cm Soyabeans (Row-60-75) wide and 4-5cm between plants (cassava cm apart)

(vi) The land to be used by the Outgrower must be suitable for the production of the crop seeds/cassava cuttings.

PART III STIPULATIONS:

(i) The outgrower shall undertake to carry out all agronomic and other production operations including rouging to obtain a good harvest. Costing inputs in kind must be paid for by the out grower at harvest.

(ii) Purchase of the Outgrower’s Seeds/Cutting shall be subject to the maintenance of clean fields as certified during field inspections and after determination of quality tests (germination percentage and purity) by Programme. The condition of 12-14% moisture and 98% seed purity shall apply for seeds.

(iii) For seed maize production, and isolation distance of at least 200m shall separate the field from other maize fields.

(iv) The Programme shall have the first claim to purchase all seeds/cuttings produced under this agreement provided the specification and stipulations above are fulfilled.

(v) Should there be any default, the outgrower will be liable to refund to the Programme the cost of all inputs supplied with penal interest charges of 20% per annum (compound interest).

(vi) The Programme shall pay for total production of the cleaned, properly certified seed Maize from the outgrower at the price of N10,000, soyabean N18,000 per tons, Payment would usually be made by Cheque.

Yam minisette Large N10.00 per seed

Medium N6.00 per seed

Small N4.00 per seed

For cassava cuttings, the Programme shall buy its requirements from the outgrower at the price of N10.00 or N7.00 per bundle and may link the Outgrower to farmers who will then buy the excess cutting, if the need arises Signed on behalf of DTADP by

Name: Mr. E.D. Odume

Signature: Signed Date 21/6/94

In the presence of

Name: Mr. Mr. C.N. Nwaodua

Signature: Signed Dated 21/6/94

Signed on behalf of Outgrower by

Name: Mike Iloukwu Ofonye

Signature: Signed Date 7th October, 1993.

In the presence of

Name: Mrs. Virginca Ofonye

Signature: Mrs Virgy Ofonye Date 7th October, 1993”

It is settled on the authorities that parties to a contract are bound by the clear words of the contract and that the duty of a court is only to give effect to the contract in the light of the terms agreed upon by the contracting parties and not to make a contract for them. A number of cases have already been cited to this effect. See also OLALOYE v. BALOGUN (1990) 5 NWLR PART 148 page 24; UNION BANK V. OZIGI (1994) 15 LRCN 257 at 270-271 where it was held that the general rule is that where the 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. To the same effect S. 132 (1) of the Evidence Act Cap 112, Laws of the Federation of Nigeria 1990 provides as follows, “When any judgment of any court or any other Judicial or official proceedings, or any contract or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceedings or of the terms of such contract, grant or disposition of property except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained, nor may the contents of any such document be contradicted, altered added to or varied by oral evidence.”

Exhibit 1 has already been reproduced. Can one read into the said exhibit 1 a requirement on the part of the 1st Appellant to supply the Respondent with fertilizers and chemicals to an agreed quantity? The Respondent has answered this question in the affirmative, contending that the word “inputs” in part III (i) of Exhibit 1 is to be taken to be inclusive of fertilizers and chemicals. Oral evidence has been led on the part of the Respondent with respect to the quantity of these items. The position of the law with respect to Documentary evidence vis a vis oral evidence is that documentary evidence should be used as a hanger from which to assess oral evidence. See FASHANU V. ADEKOYA (1974) 1 All NLR (PART 1) page 35. A court is to give effect to the intention of the parties as embodied in a written document as can be gleaned or understood from the document itself. To that extent oral evidence as we have seen must be excluded. But what does the term “inputs” in part III (i) of exhibit 1 mean? Better still what do the parties to exhibit 1 intend it to mean? A safe bet and this represents the position of the Law also, is that words in a contract should be given their natural or ordinary meaning. The word “input” as distinct from “inputs” is defined in Oxford Advance Learner’s Dictionary 6th edition page 618 as, “Time, ideas etc that are put into work, a project etc in order to make it succeed.” Admittedly the word “inputs” is not contained in this or any other dictionary that I have read and may have been used in a technical or scientific or professional sense in Exhibit 1 bearing in mind that Exhibit 1 is an agricultural contract entered into between parties versed or supposedly versed in that field of professional scientific study. Where such is the case the ordinary meaning ascribed to the word must be taken to mean the professional or technical or scientific meaning that they intend should govern the transaction entered into by them in that particular con. Section 57(1) of the Evidence Act deals with opinions of experts and provides that, “When the court has to form an opinion upon a point of foreign law, native law or custom, or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, native law or custom, or science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. Section 57 (2) – such persons are called experts.

PW4 Ibadebo Olanyede gave evidence for the Respondent as an expert. He holds a Bachelors degree in Agriculture from the University of Ife which he obtained in 1983. He also holds a Masters Degree in Agriculture obtained in 1989 from the University of Ibadan. Since qualifying he has been practising agriculture and has been involved in farm management and training in his private capacity at Olone farms and is an Agricultural Consultant. (See pages 77-78 of the Records of Appeal). Of “inputs” his evidence is as follows – “Farm inputs are fertilizers and chemicals”. He was never cross examined by the Appellant, who gave no evidence and called no witnesses to challenge this piece of evidence. The Learned trial Judge was therefore in my view right in giving effect to that word (inputs) as connoting fertilizers and chemicals in the court’s interpretation of Exhibit 1. Be that as it may and even with the acceptance by the court below that inputs means fertilizers and chemicals there is nothing in Exhibit 1 that stipulates or states either directly or impliedly the quantity of bags of fertilizer or chemical to be supplied. Whatever evidence was given by the Respondent and/or his witnesses that 70 (seventy) bags of fertilizer or 75 litres of chemical were to be supplied is not borne out by the clear wordings of Exhibit 1. There is also nothing in the wording of the said Exhibit 1 as to who is to supply the bags of fertilizer or litres of chemical. Asserting otherwise would be to do injustice to the expressed terms of the contract as represented by Exhibit 1. The fact that the Appellant did not give evidence, to rebut the Respondent’s evidence does not mean that oral evidence by or from the Respondent should be preferred and accepted when the wordings of Exhibit 1 are clearly not in consonance with the Respondent’s evidence but are at variance with it. The learned trial Judge therefore failed to test the reliability of oral evidence of the Respondent and his witnesses against the contract document – Exhibit 1 entered into by the respective parties. The Respondent’s contention that clauses 1 and V of Part III of Exhibit 1 clearly show that the 1st Appellant had a duty to supply inputs, which as earlier stated has now by expert evidence of PW4 been shown to be fertilizers and chemicals, cannot by the wording of those provisions be correct.

Issue 1 therefore must, be and is hereby resolved in favour of the Appellants.

Issue NO.2 is as to the legal effect of the failure of the Appellants to lead evidence in rebuttal of the evidence led by the Respondent at the trial court in proof of the Respondent’s claim. The Respondent has contended that after pleadings had been filed and exchanged by the Appellants and Respondents in the lower court the Respondent led evidence in proof of the various averments in his pleadings while the Appellants as defendants failed not only to lead evidence in support of their pleadings i.e. their joint statement of defence (pages 45-49 of the Record of Appeal) but also to cross examine the Respondent as plaintiff and his witnesses. The evidence of the Respondent and his witnesses therefore remained unchallenged and consequently should be accepted by the court. He placed reliance on NWABUOKU V. OTTIH (1961) 1 All NLR 487 AT 490. On the extent of the burden of proof required to prove this case under this circumstance, he submitted that the Respondent, only required minimal proof to succeed. The following cases were cited in support- ODULAJA V. HADDAD (1973) 11 SC 357 at 364-365; IMANA V. ROBINSON (1979) 3 & 4 SC 1 at page 26, ADEJUMO V. AYANTEGBE (1989) 3 NWLR PART 110 page 417 at 435 paragraphs F-G. He further contended that the burden of proof required of the plaintiff in establishing his case where his evidence is unchallenged is also discharged on minimum of proof. He leaned on the following cases for support – NWABUOKU V. OTTIH (supra) at page 490, ODULAJA V. HADDAD (supra) at pages 364-365; ELF V. SILLO (1994) 19 LRCN 153 at 175 paragraphs F-G. The Appellants have submitted on page 12 of their Brief of Argument that the fact that fact they (Appellants) did not lead evidence at the lower court did not relieve the Respondent as plaintiff in the lower court of the duty to prove his entitlement to the reliefs sought. Reliance was placed on the following cases – NWOGO V. NJOKU (1990) 3 NWLR PART 140 page 570 at 581 paragraphs B-C; OMOREGIE V. OMIGIE (1990) 2 NWLR PART 130 page 29 at 39.

The position of the law is that when a plaintiff adduces oral evidence to establish his claim against the defendant in terms of his writ and that evidence is not rebutted by the defence, the plaintiff is entitled to judgment. However it is not a general rule that whenever the evidence of the plaintiff is unchallenged or uncontradicted the plaintiff is automatically entitled to judgment. The evidence adduced must bear relevance to the facts pleaded and the issues joined. In the present case the crux of the matter was the interpretation to be given to Exhibit 1 which is the contract entered into between the Appellants and Respondent. The Respondent failed to prove that the Appellants were in breach of the provisions of Exhibit 1 and so could not have been entitled to judgment. Issue NO.2 is therefore resolved in favour of the Appellants against the Respondent.

Issue NO.3 is as to whether the award of N2,000,000.00 (two million naira) as special damages by the lower court in favour of the Respondent was justified in law having regard to the facts of the case.

The claim of the Respondent against the Appellants having failed, the Respondent is not entitled to the sum of N2,000,000.00 or any sum at all as special damages. Issue No. 3 is therefore resolved in favour of the Appellants against the Respondent.

In all, the Appeal succeeds and is allowed. The judgment of Odita J of High Court 2 Asaba delivered on the 30th November 1998 in Suit No. A/78/96 is hereby set aside. There shall be N5,000.00 (five thousand naira) costs in favour of the Appellants against the Respondents.

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Other Citations: (2007)LCN/2586(CA)