DESEMYOF NIGERIA LTD V KWARA STATE GOVERNMENT & ORS

DESEMYOF NIGERIA LTD V KWARA STATE GOVERNMENT & ORS


IN THE COURT OF APPEAL
IN THE ILORIN JUDICIAL DIVISION
HOLDEN AT ILORIN

ON FRIDAY, 27TH JULY, 2018


Appeal No: CA/IL/80/17
CITATION:

Before Their Lordships:

CHIDI NWAOMA UWA, JCA

HAMMA AKAWU BARKA, JCA

BOLOUKUROMO MOSES UGO, JCA


BETWEEN

DESEMYOF NIGERIA LIMITED

(APPELLANT)

AND

KWARA STATE GOVERNMENT
ATTORNEY GENERAL OF KWARA STATE
THE COMMISSIONER MINISTRY OF AGRICULTURE AND NATURAL RESOURCES OF KWARA STATE

(RESPONDENTS)


PRONOUNCEMENTS


A. ACTION
1. Pleadings – Effect of failure to call evidence in support of pleadings

“On the trial Court’s reliance on the letter of 5th March, pleaded by the parties but, not tendered in evidence, it is presumed to have been abandoned as rightly argued by the learned counsel to the Appellant. Pleadings are not evidence and cannot substitute evidence in proof of any fact that has been alleged. Any pleading not supported by evidence is of no value.
In the case of BRAWAL SHIPPING (NIG) LTD VS. F.I. ONWADIKE CO. LTD & ANOR (2000) SC, P. 23, PARAS C – F, his lordship, Uwaifo, JSC in respect of a pleaded document not tendered held thus:
“I do not have any doubt that when a document is pleaded it formed part of the pleading. Certainly a document is pleaded in order that it may be used to support facts relied on by the pleader. The existence of such document is thereby pleaded as a fact. The contents thereof are facts and are pleaded as such. The document will then at the appropriate time in the proceedings be tendered as the evidence in proof of those facts. Indeed, BRETT FJ in B.G.C.C VS. SPETSAI (NO.2) (supra) at PAGES 315 – 316 in citing DAYS WILLIAMS HILL to the effect that the agreement in writing pleaded in that case made it part of the pleading added “and it was produced in evidence.”

I hold that the learned trial judge was wrong to have relied on a purported termination letter that was pleaded but, not tendered by the Respondents to hold that the agreement was rescinded in terms of the MOU, Exhibit ‘8’. I hold that the agreement was not terminated in accordance with the terms of Exhibit ‘8’ which provided for two (2) weeks’ notice before the termination of the contract.”Per UWA, J.C.A. read in context

B. CONTRACT
2. Agreement – Whether parties are bound by the terms of their agreement

“…It is trite that parties are bound by the terms of their agreement. First and foremost, clause ‘J’ of Exhibit ‘8’, made it clear that the “termination of the agreement will not affect the right of the parties that may have arisen before the termination”. The lower Court and the learned DCL, by the Court’s findings and the authorities cited and relied upon by the learned DCL misunderstood the Appellant’s grouse. The Appellant did not make out that she executed the contract of repairing the bulldozers fully as expected by the Respondents but, sought to be paid the amount she spent repairing the bulldozers until the auction to a third party based on quantum meruit, that is, the work done so far, since he would have recovered the cost of repairs and for work done if the bulldozers had been completely repaired and used to work. It is in evidence that the second bulldozer was repaired and worked for four days before breaking down again. Secondly, the Appellant is also challenging the termination of the contract without the required notice. The authorities cited and relied on by the learned DCL are relevant to situations where the termination of the contract is being challenged, where properly done in terms of the agreement. The 3rd Respondent had the right to terminate the contract with the Appellant but, in compliance with Exhibit ‘8’. The terms of the contract is plain and must be complied with. In the present case clause, ‘J’ of Exhibit ‘8’ gave room for the preservation of the right of the Appellant that accrued before the termination of the contract. Parties are bound by the terms of their agreement. See, EDILCON (NIG) LTD VS. UBA PLC (2017) LPELR – 42342 (SC), A.G. RIVERS STATE VS. A.G. AKWA IBOM (2011) 8 NWLR (PT. 1248) 31 and E.A. LTD INDUSTIRES VS. NERFUND (2009) 8 NWLR (PT. 1144) PAGE 532 at 592, it was held that parties are under obligation to honour agreements voluntarily entered into.”Per UWA, J.C.A. read in context

3. Quantum Meruit – Circumstances under which payment on quantum meruit will arise

” …In respect, the required notice to be given before termination, I have held above that no notice of two weeks was given to the appellant before the termination. The Appellant’s concern is not just the termination of the agreement/contract but, that adequate notice was not given and that she be refunded the money already expended on the basis of quantum meruit. In the case of ALFOTRIN LIMITED VS. THE ATTORNEY GENERAL OF THE FEDERATION & ANOR (1996) LPELR – 414 (SC); (also (1996) 9 NWLR (PT. 475) P. 634) the term quantum meruit was defined in the Apex Court decision, per Iguh, JSC at PP. 35 – 36, P R S. G – A thus:

“The term, quantum meruit, is at common law used in various senses inclusive of a claim for a reasonable price, remuneration or compensation implied in a contract where no remuneration or price fixed for the work done or for a breach of contract for reasonable remuneration for work done.”

See, also S.B.N. PLC VS. OPANUBI (supra) and OLAOPA VS. OAU, ILE IFE (1997) ELR – 2571 (SC) for different situations that may arise, that would determine when and how the principle of quantum meruit would be applied to recover earnings where there has been part performance of the entire contract. In the present case, the appellant was entitled to the value of the materials for the repairs already carried out and labour paid. The term is implied by the wordings of clause ‘J’ in Exhibit ‘8’.”Per UWA, J.C.A. read in context

C. COURT
4. Duty of Court –

Duty of Court in the interpretation of terms of an agreement

” …The duty of the Court is to interpret the terms in the binding contract that binds both parties, the Court cannot in the performance of its duty to interpret same, alter the agreement.”Per UWA, J.C.A. read in context


LEAD JUDGMENT DELIVERED BY UWA, J.C.A.


The High Court of Kwara State presided over by A. O. Akinpelu, J, in its judgment dismissed the suit of the appellant (as claimant) for lacking in merit. The Appellant as claimant before the lower Court took out an action against the Respondents in which the following reliefs were sought:

i. “An Order of this Honourable Court declaring that the Defendants are in breach of the contract between the Claimant and Defendants.

ii. An Order of this Honourable Court for specific performance of the contract between the Claimant and Defendants as contained in the memorandum of understanding’ or

iii. An Order of this Honourable Court directing the Defendants to reimburse the claimant with the sum of Five Million, One Hundred and Forty Nine Thousand, Seven Hundred and Fifty Naira (N5,149,750.00) only being the alleged sum the claimant purportedly expended on the repairs of the two trucks or;

iv. An Order of this Honourable Court directing the Defendants to handover the MANR D8K bulldozer allegedly repaired by the Claimant or any other MANR D8K property of the Defendants be handed over to the Claimant in lieu of the said sum of Five Million, One Hundred and Forty Nine Thousand, Seven Hundred and Fifty Naira (N5,149,750.00) only claimed to have been expended in repairing the said trucks;

v. An Order of this Honourable Court directing the Defendants to pay 21% interest rate on the sum of Five Million, One Hundred and Forty Nine Thousand, Seven Hundred and Fifty Naira (N5, 149,750.00) only from 1st of July 2015 till judgment and thereafter 10% interest rate until the judgment sum is liquidated and

vi. The cost of this suit.”

The background facts on the part of the Appellant are that the Appellant a company registered under the Companies and Allied Matters Act (CAMA) entered an agreement with the Ministry of Agriculture and Natural Resources of Kwara State, which was covered by a Memorandum Of Understanding (MOU) dated 12th February, 2012. By the MOU the Appellant was given a CATD8K bulldozer to repair and use for thirty (30) days, the sum used for the repair would serve as payment for the use of the bulldozer to enable the appellant recoup the money expended on the repair.

The appellant is said to have repaired the bulldozer but, before it could be used for thirty (30) days it broke down again and the appellant was given another one to repair on the same terms and conditions as the former one, to enable him recoup his money. The Appellant made out that he spent the sum of N3,550,00.00 (Three Million, Five Hundred and Fifty Thousand Naira) on the first bulldozer. The Appellant was given another CATD8K bulldozer to repair and use for three (3) months to enable him recoup the money spent on repairs, on the first and second bulldozers.

The Appellant made out that he repaired the second bulldozer but, before he could recoup his money the second bulldozer broke down and was thereafter sold on auction by the Respondents. The Appellant who was unable to recoup the money spent on the two bulldozers as a result took out the action that led to this appeal, being dissatisfied with the decision of the trial Court dismissing the suit.

The following issues were formulated by the Appellant for the determination of the appeal:

1. “Whether the trial lower Court was right to have dismissed the appellant’s case and held that it was not entitled to any of the reliefs.

2. Whether the trial Court was right to have held that the Respondents were right to have terminated the agreement since the bulldozers not repaired within the stipulated time and whether this does not amount to a miscarriage of justice?

3. Whether the trial Court was right to have based its judgment on a document pleaded but not tendered in evidence and whether this does not overreach the case of the Respondent and subsequently amount to a miscarriage of Justice.”

The Respondents on their part also distilled three issues for the determination of the appeal thus:

i. “Whether the Court below was right to have held that the appellant was in breach of contract for failure to repair the bulldozers within the time stipulated in the agreement between the parties, and the respondents have the right to terminate the contract.

ii. Whether the Court below was right to have held that the appellant is not entitled to the reliefs being sought against the defendants.

iii. Whether the Court below was right to have relied on a document pleaded by parties and not tendered in evidence by the parties.”

In arguing the appeal, the learned counsel to the Appellant that settled the brief of argument Magaji Oba Abdulkadir Esq, adopted and relied on his brief of argument filed on 28/11/17 but, deemed properly filed on 20/2/18, and his reply brief filed on 10/4/18 as his argument in this appeal, in urging us to allow same and set aside the judgment of the trial Court. In arguing his first issue, it was submitted that what governed the contract between the parties was the MOU, Exhibit ‘8’. It was submitted that the only right that has arisen was the expenses/money expended by the appellant to repair the two bulldozers. We were urged to give clause ‘J’ its plain and ordinary meaning in interpreting same to the effect that the rights of the parties would not be terminated even where the contract is terminated. Reference was made to Exhibits 1 -7, the receipts of the spare parts/materials and work done to repair the two bulldozers as evidence of the money spent on repairs. Reference was made to the evidence of the sole witness to the Respondents at the lower Court. It was submitted that the witness confirmed that the 2nd bulldozer was given out to the appellant to repair and use, to enable him recoup the money spent on the repairs carried out on the first bulldozer. It was submitted that some rights had accrued before the termination of the contract. We were urged to construe the contract in its ordinary meaning, see,UNION BANK OF NIGERIA LTD VS. NWAOKOLO (1995) 6 NWLR (PT. 400) 127 and OWONIBOYS TECHNICAL SERVICES LIMITED VS. UBA PLC (2003) FWLR (PT. 180) 1529. It was argued that even where reimbursement was not contemplated, money expended would be refunded to the other party based on the principle of ‘quantum meruit’ as implied term of the contract. We were urged to award prorata payment based on the part of the contract that was performed, that is, the repairs actually carried out by the Appellant. See, BFI GROUP CORP. VS. BUREAU OF PUBLIC ENT. (2013) ALL FWLR (PT. 676) P. 451 and BELLO VS. ATTORNEY GENERAL OYO STATE (1986) 5 NWLR (PT. 45) 828.

On issue two, it was submitted that it was in evidence from both parties that the bulldozer worked for four (4) days at Agbeyangi before it broke down again, therefore that it would be wrong to argue that the bulldozer was never repaired to justify the termination of the contract. Reference was made to clause ‘d’ in arguing that the trial Court was wrong to have held that the inability of the Appellant to fulfill his obligations over a period of two (2) years that made the bulldozer remain in her possession. It was argued that the trial Court cannot rewrite the contract for the parties but, to examine the binding document/agreement signed by both parties, clause ‘J’ was referred to, to the effect that two weeks’ notice in writing ought to have been given to the Appellant before the contract was terminated in line with the MOU. See, OYELEYE VS. I.B.E.D.C. (2016) ALL FWLR (PT. 852) PAGE 1602 at 1623.

On the third issue, it was submitted that both parties referred to a letter dated 5th March, 2015 but, it was not tendered before the Court. It was pleaded but, not tendered. It was argued that the trial Court ought not to have relied on it to arrive at its decision as such document is deemed abandoned and ought not to have been considered. See, ADEKUNLE VS. ROCKVIEW HOTEL LTD (2004) ALL FWLR 188, PAGE 1043 and BEN VS. N.S.I.T.F. (2015) ALL FWLR (PT. 780) P. 1234. We were urged to hold that the respondent was wrong to have terminated the agreement (MOU) in a manner contrary to its terms/agreement.

In response, the learned Director of Civil Litigation (DCL) Kwara State Ministry of Justice who settled the brief of argument relied on his brief filed 19/3/18 as his argument in urging us to dismiss the appeal and affirm the judgment of the lower Court. It was submitted that the appellant failed to repair the CAT D8K bulldozer leased to him as agreed upon by the parties, therefore breached the terms of the MOU. Reference was made to paragraphs (c) and (d) of Exhibit ‘8’, page 14 – 16 of the printed records, as well as the evidence of the DW1 to the effect that the bulldozer could not move from the point of repair. It was submitted that a letter of retrieval of the bulldozer from the Appellant dated 5th day of March, 2015, was written to the Appellant while the second bulldozer was still with the Appellant’s mechanic when it broke down and the Respondents had to terminate the agreement. Further, that the Appellant was in breach of a fundamental term of the MOU (Exhibit ‘8’) between the parties, the provision that the repair should be carried out within twenty (20) days. See, OCEANIC BANK INTERNATIONAL (NIG) LTD VS. CHITEX IND. LTD. (2000) 6 NWLR (PT. 661) 464 at 478, AKANMU VS. OLUGBODE (2001) 13 WRN 132 at 155 and ILODIBIA VS. NCC LTD (1997) 7 NWLR (PT. 512) 174 at 188.

It was the contention of the learned DCL that a termination based on a breach of contract does not require any notice. See, ILODIBIA (supra). Further, that where one party has failed to perform or has rendered himself incapable of performing his part of the contract, he puts it in the power of the other party either to sue for breach or to rescind the contract. See, SAVANNA BANK PLC VS. OPANUBI (2004) ALL FWLR (PT. 222) 1587 at 1609. It was argued that the trial Court was right to have held that the Respondents had the right to have terminated the contract since the Appellant breached the terms and conditions contained in the MOU, Exhibit ‘8’.

See, ODUSOGA VS. RICKETTS (1997) 7 NWLR (PT.511) 1 at 16 – 17, MANYA VS. IDRIS (2000) FWLR (PT. 23) 1237 RATIO, 6, DANTATA VS. MOHAMMED (2000) 5 SC 10; (2000) 7 NWLR (PT. 664) 176 at 198 – 199. It was stressed that the appellant’s failure to perform the contract within the specified period is a breach which has the effect of putting to an end the contract between the parties. See, KAYDEE VENTURE LTD. VS. MINISTER FCT & ORS (2010) 41 (PT. 2) NSCQR 830 at 92.

On the second issue, it was submitted that the Appellant’s action for specific performance should be barred because of her failure to discharge her obligation under the MOU. Further, that an action for specific performance cannot succeed if there is failure on his part to discharge his obligations under the said agreement. See, AUSTRALIAN HARDWOODS PTY LTD VS. COMMISSIONER FOR RAILWAYS (1961) 1 ALL E.R. 737 P.C. at 742, COKER VS. AJEWOLE (1976) 1 NMLR 178 at 183 – 184; (1976) 10 NSCC 429 at 433 and OGUNDALU VS. MACJOB (2015) 3 SCN 112 P. 117.

On the other hand, it was submitted that the bulldozer in question was auctioned on 14th May, 2015, by the Respondents and is in possession of the buyer, reference was made to the receipt of the auction dated 14/5/15, at page 104 of the printed records. It was the contention of the learned DCL that the Appellant’s relief is over a completed act of the Respondents, the case was said not to have been promptly filed. It was argued that the sum N5,000,000.00 (Five Million Naira) sought is above the contract sum agreed upon in Exhibit ’8’. Further, that the Appellant did not prove that she had expended any money on the bulldozers and that clause ‘J’ in Exhibit ‘8’, therefore was not in her favour. It was submitted that from Exhibit ‘D1’, page 104 of the printed records, the amount said to have been spent on repairs is far more than the amount realized from the auction sale. It was argued that the trial Court was right to have held that the amount the appellant from Exhibits – 7 alleged to have spent on repairs was not contemplated in their agreement; the cost of repair was to be recouped from the use of the truck. It was submitted that failure of the repairs means that the Appellant was unable to repair the truck as covenanted.

The learned DCL also submitted that the principle of quantum meruit is not applicable because the Appellant breached her contractual obligation in this case. See, LUVOR (EASTBOURNE) LTD VS. COOPER (1941) A.C. 108 at 140 – 141. It was argued that the Appellant did not establish any legal right and is therefore not entitled to any remedy according to the maxim of ubi us ibi remedium.

On the third issue, it was submitted that both parties pleaded the retrieval letter dated 5th March, 2015, pages 6 and 93 of the printed records of appeal which means that both parties are agreed on it and need not tender the letter, as facts admitted need no further proof. The trial Court was said to have been right to have relied on the said letter. See, AYOKE VS. BELLO (1992) 10 NWLR (PT. 218) P.380 RATIO 2, O.A.A. CO-OPERATIVE SOCIETY VS. N.A.C.P. LTD (1992) 2 NWLR (PT. 590) P. 234 RATIO 4, CONFIDENCE INSURANCE LTD VS. TRUSTEE OF O.S.C.E. (1992) 2 NWLR (PT. 591) 373 RATIO 13. It was concluded that not tendering the retrieval letter referred to by the learned trial judge did not occasion a miscarriage of justice because there were other facts in the case that established the fact that there was a breach of the terms agreed upon by the parties.

In the appellant’s reply brief, under the first issue, it was reargued that the second bulldozer was released to the appellant to repair to enable her recoup the money spent to repair the first bulldozer. Reference was made once again to the evidence of the sole witness called by the Respondents, the DW1, the operator of the bulldozer (staff of the Respondent) to the effect that the bulldozer operated briefly before it broke down again and had moved from Kangile where it was repaired to Agbeyangi where it was operated by the DW1, for four (4) days for clearing, page 178 of the printed records of appeal.

It was submitted that Exhibit ’3’ is a letter of invitation for a meeting and not a retrieval letter as argued by the learned DCL . The cases of OCEANIC BANK INTERNATIONAL (NIG) LTD VS. CHITEX IND. LTD. (supra) and AKANMU VS. OLUGBODE (supra) relied upon by the learned DCL were said not to be applicable.

The learned counsel to the appellant agreed that the Respondent can terminate the contract but, that they must comply with the provisions of the MOU, clause ‘J’ before such termination, failure of which is a breach of the terms of the contract which entitles the Appellant to compensation. It was argued by the learned counsel to the Appellant that, there was part performance and not total none performance. It was submitted that the bulldozer remained in the possession of the Respondents since the Respondents’ operator was operating it before it broke down.

The Appellant’s relief (ii) was conceded to the effect that the relief for specific performance cannot be granted because the act has been completed but, that all the other reliefs ought to have been granted rather than a dismissal of the action by the trial Court. It was argued that the contention that the Appellant did not prove the expenses to the satisfaction of the Court was not part of the Respondent’s case at the lower Court and did not form part of the judgment of the trial Court.

On the amount claimed, it was submitted that the agreed amount for the repair of each bulldozer was N3,000,000.00 (Three Million Naira) but, that the Appellant only claimed N5,000,000.00 (Five Million Naira). It was concluded that the Respondent has never denied the fact that the Appellant repaired the bulldozers, only that it was not successfully done, also the reason for the repair of the second bulldozer to recover the cost of repairs of the first bulldozer. Clause ‘J’ of Exhibit ‘8’ said to have envisaged the situation that has arisen, to enable the Appellant recover the expenses incurred so far.

On the third issue, it was re-argued that a document pleaded that is not tendered ought not to be acted upon by the learned trial judge, doing so occasioned a miscarriage of justice.

I would resolve the issues as formulated by the parties but, recouched into a sole issue thus:

Was the trial Court right to have dismissed the Appellant’s case and held that it is not entitled to any of the reliefs sought?

From the on start, it is important to examine the terms of the agreement entered into by the parties in the Memorandum Of Understanding (MOU), Exhibit ‘8’. The duty of the Court is to interpret the terms in the binding contract that binds both parties, the Court cannot in the performance of its duty to interpret same, alter the agreement. It is not in doubt that the binding factor or document in this case is Exhibit ‘8’, at pages 46 – 48 of the printed records of appeal. It is apt at this point to reproduce hereunder clause ‘J’ of Exhibit ‘8’ which the appellant relied on to make his claim for part performance to be calculated based on the work done, quantum meruit.

(j) “Either party is entitled to terminate this MOU by giving to the party a two week’s notice in writing of such intention. Termination of the agreement will not affect the rights of the parties that may have arisen before the termination.”

From the above, the Respondents envisaged a situation as has arisen here, that the other party could have some rights that would accrue before a possible termination of the agreement. The above provision is simple, plain, unambiguous, must be given its ordinary meaning and interpretation. In the present case, the Appellant is not claiming to have repaired any of the two bulldozers to the extent of their fully being functional. The Appellant is asking to be paid for the repairs carried out until the contract was terminated and the CATDSK bulldozer auctioned to a third party, Alhaji AbdulRasak Lagbe Yusuf, shown in Exhibit, “D1”. The right the Appellant alleges to have arisen is the money spent to have partly repaired the two bulldozers. It is in evidence that the Appellant was given a bulldozer to repair and to recoup his money from usage of the bulldozer for thirty (30) days which would serve as payment for the repair. The complete repair and usage of the bulldozer CATD8K was not achieved. The bulldozer broke down before usage which was the reason for the Respondents to have given the Appellant another bulldozer CATDSK to repair and use for three (3) months to recoup the money spent on the first and second bulldozers. By the award of the repair of the second bulldozer, it is clear that impliedly, the Respondent knew the Appellant had spent money repairing the first bulldozer, also the longer period of three (3) months usage as opposed to thirty (30) days given for the first bulldozer. The sole witness to the Respondent DW1 (Engineer Abifarin Oyedele Olawuyi) a retired staff of the Kwara State Ministry of Agric and Material Resources as a Director of Agriculture and Engineering Services, his evidence at page 176 of the printed records is that the second bulldozer was given to the Appellant to enable him recoup the money spent on the same terms and conditions of the MOU. Further, at pages 176 – 178, the DW1 partly testified thus:

“I agree that the claimant would have spent money on the 1st bulldozer but, he did not repair that bulldozer to an expected condition. The 2nd bulldozer given to him broke down at Kangile in Ilorin . The representative of the 3rd defendant usually visits the place in person of our bulldozer operator. The bulldozer was not effectively repaired by the claimant. It was not put back into a good working condition.

I know that the claimant would have spent money in repairing the 2nd bulldozer. We assess the equipment for not working effectively as should be. The claimant himself could not utilize the equipment according to the Memorandum Of Understanding.”

From the above, the same repairs were carried out on the two bulldozers but, not up to the “expected condition”, “effectively” and they did “not work effectively”. It simply means acknowledging the fact that some repairs were carried out but, not up to the expected condition, not that no repairs were carried out at all as submitted by the learned DCL. It was the contention of the Respondents that no repairs were carried out and that the lower Court was right to have held that the repairs carried out were not contemplated by the parties in their agreement Exhibits 1 – 7 which were admitted in evidence without any objection, these were the receipts for spare parts and work done in respect of the two bulldozers as evidence of money spent by the Appellant. The Respondents had argued that the alleged amount spent on the repairs was not to their knowledge as their staff was meant to monitor the repairs. But, the DW1 further testified thus:

“I could not visit the claimant while repairing the 1st bulldozer because of my schedule but my representatives did.”

It is in evidence therefore that the representatives of the DW1 as a staff of the Respondents visited the claimant while the repairs were being carried out in satisfaction of clause (b). Further:
“I know he was to recoup his money within 45 days. The claimant was unable to recoup his money because he has not effectively repaired the bulldozer …………

I agree that the bulldozer worked for 4 days in Agbeyangi but, the work it did was to be done in two days implying that it was not effectively repaired.”

The evidence of DW1 confirms that the second bulldozer was repaired and worked for four (4) days contrary to the submission of the learned DCL that the bulldozer was not repaired at all and never moved from the mechanic workshop. The Appellant has not claimed to have repaired the bulldozers to the expected condition from the Respondents but, to be paid for the much he did based on the money spent before the breakdown and retrieval of the bulldozer which was eventually auctioned. At page 179 of the printed records, the DW1 further testified that:

“As at March, when the Memorandum of Understanding was terminated, I know the claimant has not recouped his money because he did not effectively repair (sic) the bulldozer.

When the bulldozer broke down, it was the operator of the 3rd defendant operating the equipment because that was a term of the Memorandum of Understanding.”

From the above, two things are clear, as at the time the MOU was terminated, the Appellant had not recouped the money spent on the repairs, secondly, it was the 3rd Respondent’s operator that was operating the bulldozer when it broke down. The same operator would therefore be aware that the bulldozer had been repaired up to a certain extent before it broke down again. There was no evidence led contrary to that of the DW1 who was a witness for the Respondents as defendants. On the issue of notice, clause

(j) provides that either party is entitled to terminate the MOU by giving to the other party a two weeks’ notice in writing of such intention. The Respondents had submitted that the Appellant did not require any notice of termination of the contract having been in breach of same. In the alternative, it was argued that Exhibit ‘3’ was a notice of termination. A look at Exhibit ‘3’ it is clear that it is not a notice of termination of the agreement between the parties but, it is a letter of invitation of the Appellant to a meeting to discuss and finalize arrangement on the termination of the lease agreement as scheduled, the date, venue and time of the meeting were indicated on the letter. The evidence of the DW1 at page 179 is that the Appellant was not given any notice when he testified under cross examination thus:

“He was also not given any notice before the auction.”

The bulldozer was sold on auction to a third party without notification to the Appellant.

It is trite that parties are bound by the terms of their agreement. First and foremost, clause ‘J’ of Exhibit ‘8’, made it clear that the “termination of the agreement will not affect the right of the parties that may have arisen before the termination”. The lower Court and the learned DCL, by the Court’s findings and the authorities cited and relied upon by the learned DCL misunderstood the Appellant’s grouse. The Appellant did not make out that she executed the contract of repairing the bulldozers fully as expected by the Respondents but, sought to be paid the amount she spent repairing the bulldozers until the auction to a third party based on quantum meruit, that is, the work done so far, since he would have recovered the cost of repairs and for work done if the bulldozers had been completely repaired and used to work. It is in evidence that the second bulldozer was repaired and worked for four days before breaking down again. Secondly, the Appellant is also challenging the termination of the contract without the required notice. The authorities cited and relied on by the learned DCL are relevant to situations where the termination of the contract is being challenged, where properly done in terms of the agreement. The 3rd Respondent had the right to terminate the contract with the Appellant but, in compliance with Exhibit ‘8’. The terms of the contract is plain and must be complied with. In the present case clause, ‘J’ of Exhibit ‘8’ gave room for the preservation of the right of the Appellant that accrued before the termination of the contract. Parties are bound by the terms of their agreement. See, EDILCON (NIG) LTD VS. UBA PLC (2017) LPELR – 42342 (SC), A.G. RIVERS STATE VS. A.G. AKWA IBOM (2011) 8 NWLR (PT. 1248) 31 and E.A. LTD INDUSTRIES VS. NERFUND (2009) 8 NWLR (PT. 1144) PAGE 532 at 592, it was held that parties are under obligation to honour agreements voluntarily entered into.

In respect, the required notice to be given before termination, I have held above that no notice of two weeks was given to the appellant before the termination. The Appellant’s concern is not just the termination of the agreement/contract but, that adequate notice was not given and that she be refunded the money already expended on the basis of quantum meruit. In the case of ALFOTRIN LIMITED VS. THE ATTORNEY GENERAL OF THE FEDERATION & ANOR (1996) LPELR – 414 (SC); (also (1996) 9 NWLR (PT. 475) P. 634) the term quantum meruit was defined in the Apex Court decision, per Iguh, JSC at PP. 35 – 36, PARAS. G – A thus:

“The term, quantum meruit, is at common law used in various senses inclusive of a claim for a reasonable price, remuneration or compensation implied in a contract where no remuneration or price fixed for the work done or for a breach of contract for reasonable remuneration for work done.”

See, also S.B.N. PLC VS. OPANUBI (supra) and OLAOPA VS. OAU, ILE IFE (1997) LPELR – 2571 (SC) for different situations that may arise, that would determine when and how the principle of quantum meruit would be applied to recover earnings where there has been part performance of the entire contract. In the present case, the appellant was entitled to the value of the materials for the repairs already carried out and labour paid. The term is implied by the wordings of clause ‘J’ in Exhibit ‘8’.

The remedy of the right in clause ‘J’ is the payment of the money expended by the Appellant before complete repair of the bulldozer to the satisfaction of the 3rd Respondent. The Respondents did not lead evidence to show that the second bulldozer was not repaired up to the point of being able to work for four (4) days at Adeyangi before it broke down again.

On termination of the contract, I am of the humble view that the duty of the trial Court was to interpret the agreement between the parties, not rewrite it. There is no evidence on record to show that the agreement was properly terminated in line with Exhibit ‘8’. The learned trial judge was wrong to have held that the contract was properly terminated and wrong to have held that the Appellant was not entitled to any part of its claim. On the trial Court’s reliance on the letter of 5th March, pleaded by the parties but, not tendered in evidence, it is presumed to have been abandoned as rightly argued by the learned counsel to the Appellant. Pleadings are not evidence and cannot substitute evidence in proof of any fact that has been alleged. Any pleading not supported by evidence is of no value.

In the case of BRAWAL SHIPPING (NIG) LTD VS. F.I. ONWADIKE CO. LTD & ANOR (2000) SC, P. 23, PARAS C – F, his lordship, Uwaifo, JSC in respect of a pleaded document not tendered held thus:

“I do not have any doubt that when a document is pleaded it formed part of the pleading. Certainly a document is pleaded in order that it may be used to support facts relied on by the pleader. The existence of such document is thereby pleaded as a fact. The contents thereof are facts and are pleaded as such. The document will then at the appropriate time in the proceedings be tendered as the evidence in proof of those facts. Indeed, BRETT FJ in B.G.C.C VS. SPETSAI (NO.2) (supra) at PAGES 315 – 316 in citing DAYS WILLIAMS HILL to the effect that the agreement in writing pleaded in that case made it part of the pleading added “and it was produced in evidence.”

I hold that the learned trial judge was wrong to have relied on a purported termination letter that was pleaded but, not tendered by the Respondents to hold that the agreement was rescinded in terms of the MOU, Exhibit ‘8’. I hold that the agreement was not terminated in accordance with the terms of Exhibit ‘8’ which provided for two (2) weeks’ notice before the termination of the contract. The Appellant conceded relief (ii) asking for specific performance of the contract which is not grantable because the bulldozer has been disposed of. On the expenses sought to be refunded, the Respondents did not challenge the various sums shown in Exhibits 1 – 7 (receipts for materials and labour) for the repair of the bulldozers, as I held earlier in this judgment, these Exhibits were tendered without any objection. It was therefore not the duty of the trial Court to question the proof of the expenses. The sum claimed as clearly shown from expenses incurred form part of the repairs carried out on the two bulldozers. The Appellant acknowledged the fact that the respondent spent money on the first bulldozer without recovering any, for this reason gave the second bulldozer to the Appellant to recoup expenses incurred on the first bulldozer and the second one, for a longer period of three months as opposed to one month with the first bulldozer. The Respondents’ grouse is that the bulldozers were not successfully repaired. The DW1 gave evidence that the bulldozer worked for four (4) days and broke down again. The Appellant did not refuse performance but, did not perform fully as expected by the bulldozer being able to work fully after repairs. The authorities cited and relied upon by the learned DCL are relevant where there is non performance and the other party terminates the contract which is not the case here. It is the Respondents that failed to comply with the provisions of Exhibit ‘8’, clause ‘J’. There was part performance on the part of the Appellant and therefore she is entitled to be paid based on the work done before the auction of the bulldozer.

The sole issue as reformulated is resolved in favour of the Appellant. I hold that the learned trial judge was wrong to have dismissed the claim of the Appellant in its entirety. The appeal is meritorious and I allow same in the following terms:

(i) It is hereby declared that the Respondents (as defendants) were in breach of the contract between the Appellant (as claimant) and the Respondents (as defendants).

(ii) It is ordered that the respondents reimburse the Appellant with the sum of Five Million, One Hundred and Forty Nine Thousand, Seven Hundred and Fifty Naira (N5,149,750.00) only being the sum the Appellant expended on part repairs of the two trucks.

(iii) The Respondents are to pay 21% interest rate on the sum of N5,149,750.00 only from 1st July, 2015 until judgment and thereafter 10% interest rate until the judgment sum is liquidated.

Parties are to bear their respective costs.

BARKA, J.C.A.

I agree

UGO, J.C.A.

I agree

Appearances:

Magaji Oba Abdulkadir, Esq. with him, Tobi Ololu, Esq. and K.O. Sabit, Esq. For Appellant(s)

H.E. Gegele, Director Civil Litigation (DCL) Kwara State Ministry of Justice with him, A.M. Bello, Chief State Counsel and A.A. Akeukewe, Principal State Counsel For Respondent(s)