Fixity Investment Ltd V. Alhaji Aminu Mohammed Gumel (2016)
LawGlobal-Hub Lead Judgment Report
ISAIAH OLUFEMI AKEJU, J.C.A.
This appeal is against the decision of the High Court of Justice, Kano State of Nigeria holden at Kano delivered on 23/5/07 in suit No. K/539/2000 commenced by the Appellant as plaintiff through the writ of Summons dated 5/9/2000 for hearing under the undefended list wherein the Appellant had claimed an amount of N780,277.11 against the defendant, now Respondent. Upon consideration of the Notice of intention to defend filed by the Respondent however, the Kano State High Court (now called the trial Court) found that the Respondent had shown a defence on the merit and accordingly transferred the suit for hearing under the general cause list and ordered the parties to file their pleadings.
In Paragraphs 18 and 19 of the statement of claim eventually filed on 17th May, 2001, it was averred that the plaintiff claimed the sum of N304 ,671.43 and 5% weekly profit thereon from April 2000 till the entire judgment debt is paid and 10% Court interest from date of judgment until the final liquidation with the entire costs of the action. The Respondent as the defendant filed a statement of defence of 16 paragraphs on 25/6/10 wherein he denied the claim and prayed that same be dismissed in its entirety.
At the trial of the action, Alh. A.O. Suleman the M.D. of the Appellant (plaintiff,) testified in support of the claim and stated that the Respondent approached him and requested that the Appellant should jointly execute a contract he secured from Jigawa State Government for supply of 600 cartons of exercise books in the sum of N2,970,000.00 and they agreed to expend N150,000 at a profit of 76,607.00 making a total of N226,607.00 for which the Respondent issued a cheque dated 14/12/1999. The cheque and other documents he allegedly received from the Respondent were admitted as exhibits. He said the cheque was not paid to the plaintiff upon its maturity whereupon the Appellant caused its solicitor to write a letter to the Respondent who reacted by coming to apologies for the incident and agreed to pay additional profit of N110,000.00 while a written agreement was executed and another cheque for an amount of N104,667.00 was issued by the Respondent in favour of the Appellant which cheque was not honoured, but the Respondent paid N100,000.00 which was the only amount he paid to the Appellant. He said the contract had, to the best of his knowledge been fully executed and urged that his claim be granted. The Appellant tendered a total of eight documents as exhibits.
The Respondent, Aminu Muh’d Gumel testified in the defence of the action. He said he came to the Appellant sometime in 1999 as a result of the contract he got from Jigawa State Government for supply of exercise books which he applied to the Appellant for financing in writing which was approved and he was given N150,000.00 but was made to pay processing fee of N50,000.00. When he was cross examined he said the contract awarded to him was later terminated by Jigawa State Government though it had no time frame. He said he issued cheques to the Appellant but it was part of the procedure the Appellant requested him to follow before financing the contract.
After taking the addresses of the learned Counsel for the parties, the trial Court in its decision contained in the judgment delivered on 23/5/07 held that the Appellant was entitled to only N25,000.00 while the other claims were dismissed; and the Court ordered that the Respondent was entitled to the return of all his documents provided in support of the sum of N1,000,000.00 expected to be provided by the (plaintiff) Appellant.
Dissatisfied with the judgment of the trial Court the plaintiff now called the Appellant gave Notice of Appeal dated 21st August, 2007 with one ground of appeal that the judgment is against the weight of evidence and that further grounds of appeal would be filed upon receipt of the records of proceedings.
In pursuance of the appeal the Appellant’s Brief of Argument prepared by Kayode Amodu Esq. was filed on 12/2/14 but deemed properly filed on 31/3/14 while the Respondents’ Brief settled by Salisu Abubakar Esq, and filed on 10/6/14 was deemed filed on 25/6/14. The Appellant formulated a lone issue for determination which was adopted by the learned Counsel for the Respondent. The briefs were adopted by the learned Counsel for the parties at the hearing of the appeal and they urged Court to accede to their respective prayers. The lone issue raised by the parties for determination of the appeal is whether having regard to the totality of the evidence adduced by both parties the learned trial judge was right to have refused to grant the Appellant’s claims. The appeal will be considered and determined on the basis of this lone issue.
The learned Counsel for the Appellant contended that the judgment of the trial Court was based on its findings that for the financing request by the Respondent for the sum of N1,000,000.00 to have elicited the grant of only N150,000.00 by the Appellant, the Appellant itself already laid foundation for the failure of the contract as indicated by exhibit 4 dated 10/12/99 by which the contract was suspended, and that exhibit 5, the document governing the contract between the Appellant and the Respondent was voidable by the Respondent as it was a product of deceit and misrepresentation. According to the learned Counsel, these findings are erroneous as they were based on the belief that the amount of N150,000.00 advanced by the Appellant was paltry and therefore the Appellant initiated the failure of the contract.
The argument of the learned Counsel is that the Respondent requested for N1,000,000.00 from the Appellant to finance the contract but the Appellant offered to pay the amount in installments beginning with N 150,000.00 that would attract N76,000.00 profit to the Appellant which the Respondent accepted by issuing a post dated cheque for N226,667.00 to the Appellant for both the principal and the profit. It was submitted that the sum of N 150,000.00 was a counter offer which the Respondent accepted and was bound to perform the contract on the new terms; INNIH V. FERADO AGRO CONSORTIUM LTD. (1990) 5 NWLR (Pt. 152) 604. The Respondent failed to perform the contract but requested the Appellant to reinvest the money as a result of which exhibit 5 came into being which now embodies the contract between the parties though a product of the counter offers.
The learned Counsel argued that contrary to the finding and holding of the learned trial judge evidence adduced in the case showed that the Respondent’s contract with Jigawa State Government had failed because only N150,000,00 was advanced to the Respondent or that he did not have enough funds to complete the contract the Respondent did not state that the contract was revoked for non-performance, neither did exhibit 4 state that the contract has failed it simply stated that the contract has been deferred on the instruction of the governor.
It was argued that exhibit 4 has nothing to do with the failure of the contract for non performance and has nothing to do with non availability of funds for the Respondent to pursue the contract, the Court could not rely on sentiments, a man is bound by a contract he has freely entered into; DENNIS IVIENAGBOR V. BAZUAYE (1999) 9 NWLR (Pt. 620) 552.
It was submitted that the second leg of the findings by the learned trial judge that exhibit 5 is voidable because it is a product of deceit and misrepresentation also did not arise from the evidence adduced at the trial, it only arose from the address of the Respondent’s Counsel before the trial Court. It was submitted that the address of Counsel cannot take the place of evidence; OSUIGWE V. NWIHIM (1995) 3 NWLR (Pt. 386) 752. The learned Counsel argued that the Respondent did not allege any deceit or misrepresentation in his testimony before the trial Court, but simply admitted that he entered into the agreement now exhibit 5 with the Appellant, he paid N50,000.00 as processing fee as requested, and apart from the N150,000.00, nothing was advanced to him. It was then contended that the finding that exhibit 5 was a product of deceit and misrepresentation is not supported by evidence but based on speculation and or sentiment.
In response to the foregoing contentions, arguments and submissions by the Appellant’s Counsel, the Respondent’s Counsel contended that exhibit 1 in its clear terms shows an offer by the Respondent to the Appellant for financing of contract/LPO of N1,000,000.00 to enable the Respondent execute an LPO for the supply of exercise books to Jigawa State Government with the details stated therein.
It was submitted that for a valid contract to exist, there must be offer and acceptance, and in this case, exhibit 1 is a definite offer by the Respondent to the Appellant and the Respondent reiterated the willingness to be bound by the Appellant’s conditions; GREEN FINGERS AGRO INDUSTRIAL ENTERPRISES LTD. V. MUSAS YUSUFU (2004) FWLR (Pt. 193) 2021; OMEGA BANK NIGERIA PLC V. O.B.C. LTD (2005) ALL FWLR (Pt. 249) L964. It was contended that the contract between the parties herein is for financing of the contract awarded to the Respondent by Jigawa State Government but after advancing N 150,000.00 to the Respondent as initial drawdown, the Appellant failed to advance any further money to the Respondent for the supply of exercise books.
It was submitted that exhibit 1 is quite clear and parties are not allowed to lead oral evidence to contradict its content; ALHAJI YAHAYA NUHU V. FUROVE LOCAL GOVERNMENT COUNCIL (2004) FWLR (Pt. 193) 227; F.B.N. PLC V. NDOMA EGBA (2006) ALL FWLR (Pt. 307) 1012. The learned Counsel argued that exhibit 5 was voidable at the instance of the Respondent and was correctly voided by the trial Court. It was contended also that the evidence of the Respondent that he executed exhibit 5 based on his belief that the money he needed would be made available to him to execute the contract, an assertion that was not controverted by the Appellant. It was submitted that any evidence not controverted or challenged is assumed to have been proved; ALHAJI USMAN BUA V. BASHIR DAUDA (2003) 9 MJSC 173; NWARATA V. EGBOKA (2006) ALL FWLR (Pt. 338) 768. It was submitted also that the Appellant did not furnish any consideration to make exhibit 5 a valid contract as a party who has not given consideration for a contract cannot enforce it. The ingredients of a valid contract, learned Counsel submitted, are stated in OMEGA BANK PLC V. O.B.C, LTD Supra as an acceptance, a consideration, intention to create legal relationship and capacity to contract.
It was argued that it was the failure on the part of the Appellant to advance any money to the Respondent apart from N150,000.00 to enable him carry out the contract that resulted in the issuance of exhibit 4 by the Jigawa State Government.
The complaint of the Appellant in this lone issue is that the decision of the learned trial judge was based on two findings that were erroneous;
(1) That the amount of N150,000.00 released to the Respondent by the Appellant out of the N1,000,000.00 requested by him (Respondent) for financing the contract was the foundation for the failure of the contract awarded to the Respondent.
(2) That exhibit 5 the document that governed the contract between the parties to this case was a product of deceit and misrepresentation and was thus voidable by the Respondent.
The contention of the learned Counsel for the Appellant is that it does not matter that N150,000.00 was released to the Respondent in so far that the amount was accepted by the Respondent. The learned Counsel has also argued that the findings and holdings of the trial Court do not have root in evidence before the Court especially that the Respondent did not state that the contract with Jigawas State Government was terminated for non-performance or for lack of sufficient fund as exhibit 4 that conveyed the position of Jigawa State Government in respect of the contract merely stated that the contract was deferred for the reason stated therein, and not that the contract had failed.
In the main the contention of the Appellant is that the two findings and holdings by the learned trial judge that the Respondents contract with Jigawa State Government could not be performed due to lack of funds and that exhibit 5 entered into by the parties was a product of deceit and misrepresentation were based on speculation and sentiment and were therefore perverse.
On the contrary the learned Counsel for the Respondent has argued that the Appellant’s failure to release any other money to the Respondent apart from the N150,000.00 initially released by the Appellant which was a breach of the document tendered as exhibit 1 actually resulted in issuance of exhibit 4 by Jigawa State Government, and that the Respondent entered into exhibit 5 on the understanding that the money he needed would be released as soon as he entered into that agreement.
The law is settled that the duty to evaluate the evidence adduced in a given case and to ascribe value thereto is that of the trial Court that had the unique opportunity of watching and hearing the witnesses; MAFIMISEBI V. EHUWA (2007) 2 NWLR (Pt. 1018) 385; FABUNMI V. AGBE (1985) 3 SC 28. An Appellate Court that does not posses the same advantage as the trial Court will not ordinarily interfere with the findings of the trial Court except where it is proved that the findings are perverse. See CDC (NIG.) LTD V. SCOA (NIG.) LTD (2007) 6 NWLR (Pt. 1030) 300.
What then is a perverse finding of Court? As stated in a number of decisions of the Apex Court and this Court, a perverse finding is a finding of facts which is merely speculative and not based on the pleadings and evidence before the Court or where Court has drawn wrong inference from the evidence before the Court thereby occasioning a miscarriage of justice. SeeIWUOHA V. NIPOST LTD (2003) 1 NWLR (Pt. 822) 308; MMANMMAN V. FRN (2013) VOL. 2 – 3 MJSC (Pt. II) 168; OLANIYAN & ORS V. FATOKI (2013) VOL. 7 MJSC (Pt. II) 1.
The testimony of the managing Director of the Appellant who was the PW1 and sole witness for the Appellant is on pages 13 – 16 of the record of appeal. The evidence is that the Respondent came to his office with request for joint execution of the contract he (Respondent) got from Jigawa State Government for supply of 600 cartons of exercise books for the sum of N2,970,000.00. The Respondent requested for N1,000,000.00 as the amount adequate for the execution of the contract, at once, but they agreed to execute by installments whereupon an amount of N 150,000.00 was released to the Respondent who accepted same and agreed on a profit of N76,000.00 making a total commitment of N226,000.00 on the part of the Respondent who issued a cheque to that effect and deposited documents. Those documents were admitted as exhibits. The cheque issued by the Respondent bounced when it was later presented.
The PW1 stated that the Respondent came to apologize for the incidence of the cheque and brought a letter from Jigawa State Primary Schools Board suggesting deferment of the contract. The letter was admitted as exhibit 4. The parties thereafter entered into another written agreement which was also tendered and admitted as exhibit 5.
The PW1 stated that at page 15 of the record “The defendant never paid pursuant to exhibit 7, The allegation of breach of N7.000.000.00 by me was false as we never agreed on that amount, I have performed my own obligation,” He stated further at page 16 that “to the best of my knowledge the contract had been fully executed, The contract carried 200% profit, I pray that the Court should order the defendant to pray us N304,667,00 and thereafter 5% weekly profit as per the agreement as well as 10% interest at Court’s rate as well as cost of that,” Under cross examination he said he was not informed of any loss on the contract.
The respondent as the sole witness for the defence said he approached the plaintiff for financing of a contract awarded to him by Jigawa State Government for the supply of exercise books. He said he was given N150,000.00 by the Appellant after he had applied for it and he was made to pay processing fee of N50,000. 00. He then tendered two letters which were admitted in evidence. At page 23 of the record, the witness said “Apart of (Sic) the N150.000. 00 nothing was advanced to me by them, It is true I executed an agreement with the plaintiff which has a condition for the financing of the contract as a condition for release of financing to me The defendant never paid me any money,” Under cross examination at pages 25-26, the respondent stated that the contract awarded to him by Jigawa State Government was terminated sometime in February, 2000 but he could not remember the precise date. He said he had seen exhibit 5 and he confirmed that he signed it, still under cross examination, the witness said, “The contract was awarded to me November 1999 and had no time frame, but has been done within year 1999, I have seen exhibit 4 and now read it out. Exhibit (sic) is not an award of contract letter. I signed Exhibit 5 February 2000 I never owned the plaintiff
The cheques issued and the agreement were all part of the procedures the plaintiff said I must follow before financing the contract, I have seen exhibit 2E which is a chegue I issued as a condition before the plaintiff could release any money to me, I now read clause 4 of exhibit 5 and say I agreed with the condition in clause 4 so I signed exhibit 5, It is true I signed and issued exhibit 6 of Owena Bank (Sic).”
According to the learned Counsel for the appellant , the finding of the trial Court upon which this issue is founded is at page 146 of the record of appeal as follows:-
“This leads me to the other aspects of the testimony of adduced in this case, By the plaintiff’s position Exhibit 5 is the governing document and that it is enforceable and that PW1 says he believes the contract had been executed. However DW1 the defendant said it had been revoked for non- performance, I am inclined to accept the position of the defendant in that for a financing request of N1,000,000 to elicit the grant of only N750.000.00 it is clear indication that financier i,e, plaintiff was priming the failure of the contract This is indicated by presentation of the exhibit 4 dated 10/12/99 by which the defendant’s client suspended the contract, On this scorer I hold that the contract was frustrated through the non performance of the plaintiff in accordance with exhibit 1.
This brings me to exhibit 5 and its import, Having held that Exhibit 1 was binding on plaintiff but breached by the plaintiff I hold that Exhibit 5 is voidable by the defendant as it is a product of deceit and misrepresentation on the continued viability of Exhibit 1 by the plaintiff. I therefore hold that it is not enforceable by the plaintiff against the defendant,”
I have set out in this judgment the oral evidence adduced by the parties and it is noted that the learned trial judge had made reference to some of the documentary evidence in the case and I find it quite pertinent to consider these documents before it can be understood or appreciated whether the learned trial judge arrived at perverse findings or holdings or otherwise.
Exhibit 1 is the application dated 4th November, 1999 by which the Respondent sought a total of N1,000,000.00 from the Appellant for financing of contract for the supply of exercise books to Jigawa State Government, the value of which was N2,970,000.00. The amount of N1,000,000.00 is broken down as follows:-
Cost of production of 600 carton of exercise books N750,000.00 Entertainment/PR N750,00,00 and cost of transportation and other expenses, N100,000.00, Total N1,000,000.00,
The evidence on record is that the Appellant gave N150,000.00 to the Respondent who accepted same with provision of security and even issued a cheque for an amount of N226.000.00 to cover the refund of this N150,000.00 with the anticipated profit of N76,000.00. The Respondent did not state that the N150,000.00 was paltry or would occasion nonperformance. The law is elementary but well settled that parties are bound by the contract they voluntarily entered into and the Court is bound to give effect to the contract. See CHUKWUMAH v. SHELL PETROLEUM DEV. CO. (1993) 4 NWLR (Pt. 289) 512; UNION BANK OF NIGERIA V. PROF. OZIGI (1994) 3 NWLR (Pt. 333) 385.
Exhibit 4 is the letter of Jigawa State Primary Education Board dated 10th December, 1999 informing the Respondent that “due to pressing issues which just came up i,e, new salary scale for teachers and their three months salary arrears, His Excellency has stopped all contracts for the Board and referred all the contract to be reviewed for the year 2000”, Before the trial Court there was in existence both oral and documentary evidence as to whether the Respondent’s contract was terminated or performed. The law is that where there is oral evidence and documentary evidence, the documentary evidence should be used as a hanger from which to assess oral evidence. See FASHONU V. ADEKOYA (1974) ANLR 32; KINDER V. THE MILITARY GOVERNOR OF GONGOLA STATE (1988) 5 SCNJ 28. The reason is quite obvious and it is because documentary evidence is believed to be more reliable than oral evidence. See EZEMBI V. IBENEME (2004) 14 NWLR (Pt. 894) 617. The rationale conclusion judging from exhibit 4 is that the contract to be financed by the Appellant was neither terminated for non-performance nor was it concluded or performed. The contract was simply stopped and referred to be reviewed for the year 2000.
Exhibit 5 is a Limited Partnership Agreement entered into on 1st February, 2000 between Alhaji Aminu Gumel therein described as General Partner, and Messrs Fixity Investment Limited described as The Limited Partner. The document was signed by the parties and therefore becomes binding on them, and the defendant has not alleged fraud or misrepresentation that would have led to the agreement being voided by the Respondent as held by the learned trial judge. Although I do not find the words “fraud and misrepresentation” used by the learned trial judge to be applicable to exhibit 5, I however see clearly that exhibit 5 has no nexus with the contract that generated exhibits 1 and 4 and it has not conferred any benefit on the Respondent.
From the evidence on record which I have stated in this judgment, the Appellant gave N150,000.00 only to the Respondent who agreed to pay with anticipated profit of N76,000.00 but the profit was not realizable due to the act of Jigawa State Government and the Respondent paid N50,000.00 as entertainment or PR in respect of the contract.
Although the complaint of the Appellant on the findings of the trial Court is legitimate, I do not find the findings and holdings by that Court to have occasioned a miscarriage of justice because by simple arithmetic calculations and deductions the amount awarded by the trial Court is reasonable and just. The law is clear that it is not every mistake of the trial Court in its judgment that will vitiate the whole judgment. SeeTANKO V. THE STATE (2009) 4 NWLR (pt. 1131) 430.
On the whole I find no miscarriage of justice in the decision of the trial Court and by that token this appeal is a mere exercise in futility. The appeal fails and it is dismissed with costs of N50,000.00 to the Respondent.
Other Citations: (2016)LCN/8637(CA)
