Mathew Mbogu V. Adviser Shadrack (Now Amagbe) (2007)
LawGlobal-Hub Lead Judgment Report
GEORGE OLADEINDE SHOREMI, J.C.A.
The Appellant was the Plaintiff in the trial court. He claimed in his writ of Summons against the Respondent who was the defendant as follows:
I quote “The plaintiff claimed from the defendant the sum of Two Million Naira being the contractually agreed sum for the breach of contract; and the sum of Two Million Naira being General Damages for breach”
The case went on trial and the Appellant testified and tendered several exhibits, the Respondent also testified and tendered exhibits. At the end of the trial the learned trial Judge dismissed the Appellant’s claim and upheld part of the Respondent’s counter claim and awarded N10,000.00 as General Damages against the Appellant. The Appellant being dissatisfied with the judgment appealed to this Court.
The Appellant in his Notice of Appeal filed the following Grounds of Appeal quoted hereunder without the particulars.
“(i) The learned trial Judge erred in law when she held inter alia ‘Plaintiff’s case on Oath is that he paid cash of N173,000.00 on the day of the execution of Exhibit ‘A’ Also the fact that the sum was paid in cash is repeated in Exhibit C1 when counsel to plaintiff wrote to the Counsel to the Defendant. However this state of affairs is Not borne out in Exhibit ‘A’ itself as though Defendant Purportedly received N173,000.00 it was not specially written as N173,000.00 cash. On oath the Defendant produced Exhibit G to show a Cheque which he said was given to him as part payment for the N173,000.00 covenanted by both parties. It was his defence that on presentation the Cheque was not honoured. The evidence of both sides on this issue is not helped as plaintiff did not call any witness to prove he gave cash to the defendant. It cannot be said therefore that plaintiff has proved that he gave N173,000.00 cash to the defendant on the preponderance of evidence.
(ii) The Learned trial Judge erred in law when she held as follows:
It is not clear for what reason plaintiff stopped the cheque he gave the defendant, just as I do not believe that the purpose of paying off one Mr. Efenudu as the cheque is dated 25/11/99 whereas the plaintiff did not report the issue of piracy to the police until 17/12/99, Exhibit E on the other hand can not be ascribed any credibility.
(iii) The Judgment is against the weight of evidence.”
Briefs were filed and exchanged by parties. When the appeal came up for hearing in this Court, counsel to parties adopted and relied on their briefs of argument. The appellant in his brief filed on 10/12/04 distilled two issues thus,
(1) Whether the learned trial Judge was right in law when he held that the appellant failed to prove on the totality of the evidence led in this case that he gave N173,000.00 cash to the Respondent on the preponderance of evidence.
(2) Whether in all the circumstances of this case the appellant Proved that the Respondent breached the contract
On his own the Respondent also formulated two issues:
(1) Whether the learned trial Judge was not right in dismissing the relief sought by the appellant in the lower Court.
(2) Whether the appellant who from his own evidence jumped in and out of the contract, approbating and reprobating can honestly say he was not in breach of the contract.
The case of the appellant in the lower court was that the appellant a music producer entered into an agreement with the Respondent a musician to pay the respondent the sum of N200,00.00 per exhibit A. On 18 day of September 1997 the appellant was said to have paid the respondent the sum of N173,000.00 per exhibit B which fact was denied by the respondent, under the terms of agreement the respondent was to way two albums for the appellant between the period 18/9/1999-2000. The respondent eventually produced an album titled “I want to see Obasanjo” which the appellant claimed to have sponsored. The appellant claimed in his evidence that the Respondent subsequently entered into a similar transaction with one Clement Efenudu (Utesco record and collected the sum of N150,000. the appellant in his words said he sought to rescue the respondent from breaching his agreement with him and he paid him N150,000 as a refund to Clement but Clement refused hence the stoppage of the cheque for N150,000 Exhibit G.
The appellant alleged that the Respondent failed to fulfill his obligation as contained in Exhibit A.
On the other hand the respondent agreed that he entered into agreement contained in Exhibit A but that it was when the appellant stopped Exhibit G which was to be part payment of the agreed sum that he approached another record company to produce his record titled “I want to see Obasanjo”
The Respondent’s case is that it was the Appellant that breached the contract by the stoppage of the cheque (the part payment.) At this stage I will adopt the issue formulated by the appellant himself.
On Issue 1: He argued that it is in evidence that the respondent was paid N173,000.00 on the execution of Exhibit A borne out by Exhibit B An Invoice. He argued that the Respondent agreed and said under cross examination “I signed Exhibit B because of our friendship” He therefore submitted that where party in a suit leads evidence before the Court, the best evidence is the production of the document on that particular issue before the court, the best evidence is the production of the document. The Court frowns upon leading oral evidence of the contents of the document citing the case of BUSARI BAMGBOSE V. EMMANUEL JIAZA (1991) 3 NWLR PART 177 page 64.
He therefore said the trial court was wrong when he said I quote
“The evidence of both sides on the issue is not helped as plaintiff did not call any witness to prove he gave N173,000.00 cash to plaintiff (sic) on the preponderance of evidence.”
It is argued that the Respondent can not turn round and deny receiving cash cites Section 132 of Evidence Act and the case of ALHAJI AMINU A. U SANYINNA V. AFRICAN INTERNATIONAL BANK (2000) 6 WRN 23. He argued that it is the failure of the trial Justice to use Exhibit B as a hanger to assess the oral testimony of the parties that led him into error, Citing the case of KARIMU OLUJINLE V. BELLO ADEAGBO (1988) 4 SC 1 at 21. He argued further that both Exhibits A and Exhibit B were made and executed contemporaneously i.e. 18/9/99. The appellate court can not lean on demeanour if such a demeanour are in conflict with contemporaneous documents. Citing USMAN VS.GARKE (1999) 1 NWLR Part 587 page 466 at 471; THE UNITED INSURANCE CO. LTD. V. UNIVERSAL & INDUSTRIAL CO, LTD. (1999) NWLR PT. 593 page 17 at 20. He says court is bound to consider and decide a claim on the evidence. See JACOB A. JOLAYEMI & 2 ORS. V. ALHAJI ALAOYE & ANOR. (2004) 33 WRN 1 at 3.
In reply the respondent submitted that the case of the appellant is hinged on Exhibit A which is the contract entered into by both parties and it was part of the contract that the Respondent will release the said album by the month of December 1997, the appellant did not give evidence as to the time the album which is the cause of this case was released i.e. I want to see Obasanjo” The Respondent gave evidence that the album was released in the month of may 1999 and it could not have formed part of the agreement in Exhibit ‘A’. the appellant answer to a question said I quote.
“The issue between the respondent and I in this court is his failure to produce for me the music titled “I want to see Obasanjo”
Under the same cross examination be changed and said “It is not true that my main quarrel with the defendant is that the defendant did not sing the music “I want to see Obansajo” for me
He submitted that the appellant failed to prove his case. See OKORONKWO v. CHUKWUEKE (1992) 1 NWLR PART 216 AT 175 -193.
On the issue of N173,000 allegedly received by the Respondent it was made up of N8,000 and the cheque issued for N150,000 issued on 25/11/99 post dated and this was properly evaluated by the trial Judge, Citing the case of ROYL ASSURANCE NIG. LTD. V. ASWANI ILE INDUSTRIES LTD. (1991) 2 WLR PART 176 AT 639
ON ISSUE II
The appellant it is argued established before the lower court the existence of a legally enforceable contract which the respondent breached. He argued that it was the respondent who introduced Efenudu of Utesco Records into the transaction. He argued that in Exhibit E the Respondent confirmed that the two parties i.e. Appellant and Efenudu should print the album and market.
He said when Exhibit C, C1 and D are considered together amount to a breach. He said the respondent can not withdraw from the contract unilaterally Cites U.B.A. NIGERIA LTD. & ANOR. VS. PENNY MART LTD. (1995) NWLR PT. 240 PAGE 228 AT 243.
The appellant argued that the only agreement entered into is Exhibit A. In conclusion the appellant urges this court to allow the appeal, set aside the judgment of the lower court and enter judgment for the appellant on the grounds that there was documentary evidence before the lower court that the appellant paid the Respondent the sum of N173,000 cash on 18/9/99.
The Respondent admitted Exhibit B which was duly pleaded also that the appellant proved before the lower court that the respondent breached the contract. The Respondent in arguing Issue II submitted that in December 1999 when the respondent was to have performed his own part of the transaction as stated in Exhibit A, the appellant had already jettisoned Exhibit A. It is clear from the testimony of the Appellant.
The law he argued is that the law will not allow a party to benefit from its own default as enunciated in the case of EKENAM V. AKPAN (1991) 8 NWLR PART 211 AT 616. He submitted that it is also trite law that where a party has by words and conduct made a party to believe in the existence of state of affairs and the later acts on such belief the party representing such can not be heard to deny the representation of such facts. OYEYEMI V. COMMISSIONER FOR L.G. KWARA STATE & ORS. (1992) VOL. 8 LRCN PAGE 517; JOE IGA & ORS. V. EZEKIEL AMAKIRI & ORS. (1976) 11 SC 1 12-13. He concluded that the appeal of the appellant should be dismissed and the judgment of the lower court be affirmed. The trial Judge in summing up in his judgment has this to say and I quote “I have carefully examined the evidence adduce by both parties I have also reminaged through legal submissions of both counsel and the authorities cited.
It appears to me that the claim of plaintiff is based purely on the content of Exhibit ‘A’, the agreement entered into by the parties on 18/9/99. It is trite that the contract terms must be adhered to strictly and must not be a varied. However a close look at Exhibit ‘A’, shows that the contract was for a future performance of two works or album by the defendant at a sum of N200,000 to be paid by the plaintiff. In the same Exhibit’ A’, the defendant is said to have demanded for a part payment of the sum of N173,000. That at the execution of Exhibit ‘A’ the defendant received N173,000. That paragraph 4 of Exhibit ‘A’ it is stated that the artist has agreed with the promoter to release the first album by December 1999. This agreement has only three signatures as there was no witness for the plaintiff in the transaction though a column was provided for it. There was no explanation for the omission.
Plaintiff’s case on oath is that he paid cash of N173,000 on the day of the execution of Exhibit ‘A’. Also the fact that the sum paid in cash is repeated in Exhibit ‘C’ when counsel to plaintiff wrote to the counsel to the defendant. However, this state of affairs is not born out in Exhibit ‘A’ itself as though defendant purportedly received N173,000 it was not specifically written as N173,000 cash. On oath, the defendant produced and Exhibit ‘C’ to show a cheque which he said was given to him as part payment for the N173,000 covenated by both parties. It was his defence that on presentation the cheque was not honoured. The evidence of both sides on this issue is not helped as plaintiff did not call any witness to prove, he gave cash to the defendant. It cannot be said therefore that plaintiff has proved that he gave N173,000 cash to plaintiff on the preponderance of evidence.
The next Issue for determination is whether the defendant had released any album and when he did. Defendant by Exhibit ‘A’ had till December 1999 to release the album. However, if from the available evidence plaintiff admitted stopping the cheque although for a different Reason from that given by defendant, it is clear that the contract was frustrated and was at an end at the time the plaintiff stopped the cheque. It is not clear for what reason plaintiff stopped the cheque he gave to defendant, just as I do not believe that the purpose of paying off one Mr. Efenudu as the cheque is dated 25/11/99 whereas the plaintiff did not report the issue of piracy to the police until 17/12/99. Exhibit ‘E’ on the other hand cannot be ascribed any credibility. In the circumstance I do not find merit in the N2 million claim for breach of contract, as agreed in Exhibit ‘A’ as plaintiff in my view breached the contract by stopping the cheque. The claim for N2 million damages is not only a duplication but not proved and I dismiss the claim entirely.
On the counter claim, the defendant by Exhibit ‘G’ proved that the Plaintiff breach their agreement by stopping the cheqne. The defendant by his counter claim has not proved how plaintiff caused his arrest By the police. Defendant did not produce any evidence in proof of the allegation of detention, torture by police at the instance of the Plaintiff. I am therefore not satisfied that defendant proved his counter Claim for unlawful detention, torture, and dehumanization. This claim fails. However I find that the plaintiff breached the contract he entered into with defendant.
Defendants has not however stated what he suffered as a result of this breach of contract, as from his own evidence he went to another record company, Utesco with whom he transacted similar business. I therefore think defendant is only entitled to nominal damages of N10,000.00 which I hereby award against the plaintiff.”
The main contention in this appeal is Exhibit A (The purported agreement which was prepared by a letter writer and I think is will be pertinent to reproduce the relevant portion and I here with quote
“IT IS HEREBY AGREED AS FOLLOWS:-
I. The Artist have agreed to record two albums for the Promoter for the sum of N200,000.00 (Two Hundred Thousand Naira).
- The Artist has approached the Promoter for the release of these two albums and has demanded for part-payment of the sum of N173,000.00 (One hundred and Seventy-three Thousand Naira).
- That Artist has at the execution of this Agreement received the Sum of N173,000.00 (One hundred and Seventy-three Naira) Artist do hereby acknowledge at the execution of this Agreement) and being part-payment of the total sum of N200,000.00 (Two Hundred Thousand Naira) and thus balanced the sum of N27,000.00 (Twenty-Seven Thousand Naira) to be paid by December ending the year 2000.
- The Artist has agreed with the Promoter to release the first album by December, 1999 while the 2nd album shall be released on or before December, the year 2001.
- The Artist shall not be entitled to make any sound recording of his musical works into album or cassette for any other person or group of persons as from the date of this Agreement till August, ending the year 2001.
- The Artist hereby indemnity the Promoter and state that he is not in any contract with any person or persons restraining him from producing the two albums to any other person or persons as the Artist has said that he is at liberty to compose the albums to the promoter and that if in violation of this, the Artist has agreed to pay a liquidated sum of N2 Million (Two Million Naira) being breach of contract.
- The Artist has agreed to compose new songs which have not been Song into musical recordings inform of a whole albums or part. In doing this, the Artist shall rehearse the songs already sang and that if there is any amendment, it will be corrected by the Artist.
- The Artist has agreed with the Promoter that the musical works of the two albums shall be for the Promoter and it is for them forever but the Artist shall be entitled to the payments specified above and the N7,00 (Seven Naira) per cassette sold after 10,000 copies have Already been sold by the Promoter as royalty.
- That the Artist has agreed with the Promoter that it is at liberty to release the recorded works at the Company’s discretion.”
The Appellant in his evidence has this to say:
“Alter the initial payment I sponsored the defendant to a recording company in Lagos where he made or recorded the album titled “I want to see Obasanjo” for me. I have the master tape and multitrack of the recorded album. I know Mr. Clement Efenudu of Utosco records, he is a producer like me. The defendant who covenanted in this agreement of 18/9/99 that he was not in any contract with any person or persons to enter into an agreement for this project as in Exhibit A, the defendant went to Clement Efenudu and entered into a similar contract with him as he had with me and collected the sum of N150,000 from me. When I got to know of this I went to the defendant and he told me it is the devil’s work and temptation. That if I could give him the sum of N150,000 he would return the money to Clement Efenudu and he would enter into an agreement with me for the sum of N150,000.00 quickly issued defendant with a cheque of N150,000. I decided to hear from Clement Efenudu himself who told me he was not interested in the refund of the money as both of us were looking for the same thing from the defendant. That he was going to hold on the contract, I then instructed my bank not to honour the cheque I issued to the defendant. The defendant then came to me that he discovered an error in the master tape and multi-track and that he was going to Lagos to correct them. He demanded for the sum of N2,870 which I gave to him. I was disappointed when I got to Lagos. When I learnt from the Management of the studio that the defendant never showed up there.”
Both parties amended their pleadings in the lower court. Under cross-examination the Appellant says as follows:-
“I have known the defendant since 1996. Apart from the transaction in this suit I have been having other transactions with the defendant before. These other transactions are equally contractual transactions. The defendant has once breached one of these other transaction. The issue between the defendant and I in the matter before this court is his failure to produce for me the music titled “I want to see Obasanjo.”
“It is not true that my main quarrel with the defendant is that the defendant did not sing the music “I want to see Obasanjo”. I entered into a transaction with the defendant on 18/9/99. It is the Subject matter before this court that was the only transaction I entered into with the defendant on 18/9/99. I had other transactions with the defendant reflected in my receipt booklet.”
“We agreed to enter into a fresh agreement for him (defendant) to remain wit me. In the course of the original agreement I paid N150,000 to defendant to save him from trying to breach our Agreement. Before gave him the cheque for N150,000 there has Been no breach of contract but I only tried to save him from Breaching it. The N150,000 cheques had noting to do with the transaction that brought us to this court. In giving the defendant N150,000. I was, acting outside the agreement. The Cheque was dishonored on my instruction since Utosco Records is my friend and he told me he would not accede to my request release the defendant. The transaction between Defendant and 1 was for N200,000 and I had paid N173,000 vide Exhibit ‘B’ as part payment. Exhibit’ F’ has no bearing with the cheque for N150,000 I gave to defendant. It is not true I paid the defendant partly in cheque. I paid him cash on 18/9/99 and he signed. I have not finished paying for the contract a balance of N27,000 is left. I can not remember the date I signed the cheque for N150,000. I post dated the cheque to 25/11/99. I cancelled the cheque before 25/11/99. By 25/11/99 I had not paid the defendant the balance of N27,000.00 but he has been collecting his royalties for previous musical works he had with me. Based on Exhibit’ A’ he has not collected any royalties from me”.
The Defence of the Respondent under cross examination is reproduced herein.
“I see Exhibit A. I did not receive N173,000 cash from the plaintiff before we signed Exhibit A’. I see Exhibit B, it is because of our friendship that I signed it as I trusted the cheque plaintiff gave to me, Efenudu is one of my producers also. It was not as soon as I collected N173,000 I west to Clement Efenudu to collect N60,000 from Him. Plaintiff did not lay a complainant of piracy to the police, he Only claimed he was the rightful owner of “I want to see Obasanjo.” I went to the police to clear Efenudu. Before the coming into existence of Exhibit A, the song “I want to see Obasanjo” had been played by me in August, 1999. I did not breach any contract hence Plaintiff instructed his bankers to dishonour Exhihit G. “I want to see Obasanjo” was Played before Exhibit A.” In a claim for damages for breach of contract, the burden of proof lies on who asserts, because he who asserts must prove. In the instant case the appellant was duty bound to prove that it was the respondent that breached the contract and that he was entitled to damages. See AGBAJE V. NATIONAL MOTOR 1071 NILR 119; A-G ANAMBRA STATE V. OMELOGU ENT. LTD. (1987) 4 NWLR (PT. 665) 47; WAIVER AUTO IMPORT/EXPORT V. ADEBANJO (2005) 19 NWLR (PT.959) 44.
Also in contract cases pleadings must be reasonably relevant to the contract between the parties so that when proving averment by evidence the party will rely on relevance of the case to that contract where breach is in issue. See G. CHITEX INDUSTRIES LTD v. OCEANIC BANK INTERNATIONAL NIG LTD.(2005) 14 NWLR PT 945, 392.
I agree with the appellant that by virtue of Section 132(1) of the Evidence Act Oral evidence is not admissible to vary, contradict, alter or add to a written document. Thus where parties have embodied the terms of their contract in a written document, extrinsic evidence is not admissible to vary, contradict or alter the terms of the written document, ADECENTRO (NIG) LTD V. C. OAU (2005) 15 NWLR PT. 948 290. It is also well established that where parties have reduced their agreement into a written document subject to some exceptions oral evidence will not be allowed to contradict or alter the contents of the documents. See INTERNATIONAL MESSENGER v. PEGOFOR 22 NSCOR VOL.22 PT. 1332.
The meaning to be placed on a contract is that which is plain clear and obvious result of the terms used in the agreement. AOUA v. KESSRAWANI (1956) SCNLR 370.
When construing document in dispute between the parties the proper course is to discover the intention or contemplation of the parties and not to import into the content ideas not potent on the face of the document. AMADI v. THOMAS APPLIN CO. LTD (1972) 1 ALL WLR 409 (1972) 7 NSCC 262 (1972) 4 SC 228.
It is not the function of the Court of Law to make agreement for parties or to change their agreement as made.
See AFRICA REINSURANCE CORPORATION V. FANTAYE (1986) 1 NWLR PT. 14 113.
Exhibit E which is referred to as an affirmation can not be termed to be an agreement since it is signed by the Respondent alone and it also introduced a Third Party who is not a party to this case.
It is in evidence that the appellant admitted stopping the cheque which was issued in the name of the Respondent.
One can not see the reason of issuing the cheque in the name of the respondent if in fact it was meant for Mr. Efenudu. I agree that Exhibit E can not be ascribed any credibility. From the totality of the evidence adduced in this case, one can not but agree with the learned trial Judge that the Appellant did not prove his case against the Respondent.
The Appellant was not sure of what he wanted from the respondent as it was done in a slip shoddy manner.
The law will not permit a party to benefit from its own default as enucited in The case of EKANEM v. AKPAN (1991) 8 NWLR PART 211 OAGE 616. If there was any breach by the Respondent/the Appellant contributed to it and he can not therefore benefit from his own default. He seems to have abandoned Exhibit ‘A’.
I therefore see no reason to disturb the findings and judgment of the lower Court. The appeal lacks merit and it is therefore dismissed. The judgment of the lower court is affirmed.
I assess cost of this appeal at N30,000.00 in favour of the Respondent.
Other Citations: (2007)LCN/2576(CA)
