HONGYE AMIP CONCEPT LTD V MELLAVIN ENGINEERING CO LTD

HONGYE AMIP CONCEPT LTD V MELLAVIN ENGINEERING CO LTD


IN THE COURT OF APPEAL
IN THE ADO-EKITI JUDICIAL DIVISION
HOLDEN AT ADO-EKITI

ON FRIDAY, 6TH JULY, 2018


Appeal No: CA/EK/5/2018
CITATION:

Before Their Lordships:

AHMAD OLAREWAJU BELGORE, JCA

FATIMA OMORO AKINBAMI, JCA

PAUL OBI ELECHI, JCA


BETWEEN

HONGYE AMIP CONCEPT LTD

(APPELLANT)

AND

MELLAVIN ENGINEERING CO LTD

(RESPONDENT)


PRONOUNCEMENTS


A. APPEAL
1. Interference with Evaluation of Evidence – Instances when an Appellate Court will not interfere with evaluation of evidence made by a Trial Court

Circumstance(s) when an Appellate Court will not interfere with evaluation of evidence made by a Trial Court

“On whether the Respondent can claim the fluctuation in the exchange rate of naira to the dollar? I am of the view that the learned trial carefully examined the evidence adduced before the Court and came to the correct decision. In the case of OMEGA BANK PLC v O.B.C. LTD, evaluation of evidence in the case of TINUBU v. KHALIL and DIBBO TRANSPORT LTD (2000) LPELR-3249 (SC) the Supreme Court held – “it is settled that the cardinal duty of a trial Court was to make such findings as deemed appropriate upon facts led at a trial. Where a trial Court failed to discharge that duty, it could be said that there had been a miscarriage of justice. This is because where the trial Court has failed to discharge this primary duty, it becomes difficult for an appellate Court to consider properly the merits of an appeal in the absence of the findings of the trial Court. This is moreso where the evidence would require for consideration of the credibility of witnesses who gave evidence at the trial.”

In this instant case, I am of the view that the learned trial Judge did a very detailed evaluation of the evidence proffered before the Court and arrived at the correct decision which is unassailable. I do not see any reason to disturb the good decision reached by the trial Judge.”Per AKINBAMI, J.C.A. read in context

B. CONTRACT
2. Terms of Contract –

Whether extrinsic evidence can be admissible to vary the terms of a written contract

“In resolving Issue Two, I refer to the judgment of the learned trial Judge where he held that:

“The defendant knew that the importation of the materials would gulp a huge sum of money yet chose to trivialize the issues when the import document were served on them by the claimant. The fruitless steps taken to procure dollar for the importation of the materials and the fluctuations communicated to the defendant, failed to communicate the non acceptance of the fluctuation to the claimant. The failure of DW1, to produce before the Court the letter of their non acceptance of the fluctuation is that same does not exist. In the circumstances, defendants silence on the fluctuation can be construed to mean consent. The defendant having benefited from the transaction i.e having the imported materials delivered to site by the claimant cannot turn around to evade the payment.

In the circumstance, I hold that the claimant is entitled to the cost of fluctuations claimed by them i.e ? 225,304,590.00.” From the excerpt of the judgment being attacked by the Appellant,it is very clear that the Respondent placed all the relevant evidence before the Court in proof of its claim.
Based on Respondent’s evidence the trial Court arrived at the correct finding.

The law reports are replete with cases of the Supreme Court and this Court on the issue. In the case of IGA v AMAKIRI & ORS cited by Respondent’s counsel, the Supreme Court per Otutu Obaseki, JSC held – the law is clear and well settled on the point. It may be stated thus: “if a man by his words or conduct willfully endeavors to cause another to believe in a certain state of things which the first knows to be false and if the second believes in such state of things and acts upon his belief, he who knowingly made the false statement is estopped from averring afterwards that such a state of things does not exist at the time; again if a man either in express terms or by conduct, makes a representation to another of the existence of such a state of facts, to the damage of him who so believes and acts, the first is estopped from denying the existence of such a state of facts.

The learned trial judge in my view adhered to the correct principle of law as was held by the Supreme Court in the above case. The Respondent was led to believe that the appellant had approved their communication via Exhibits 3(1)-(4). The issue whether the trial Court was right in awarding the fluctuation sum to the Respondent.
The relationship between Appellant and Respondent is contractual and the contract is governed by the sub-contract agreement no CHC-CBN-AE/003 i.e Exhibit 1.
The position in this case being contractual the learned trial Judge stated correctly that the parties have embodied the terms of their agreement or contract in a written document as was done in this case, it is to that document that the Court will resort to, while construing the relationship between them. See the case of O. B. LEWIS v. U.B.A PLC (2016) 44 EJ SC 82 @96
.2016 LPELR-40661 (SC).

In this case, the Appellant refused to pay the Respondent for materials ordered for the subcontract and the price went up as a result of fluctuation in the dollar exchange rate.
The general rule is that where the parties have embodied the terms of their agreement or contract as was done in this case, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument. The learned trial Judge rightly based his resolution of the disagreement between the Appellant and Respondent on their written sub-contract agreement for air conditioning installation.”Per AKINBAMI, J.C.A. read in context

C. EVIDENCE
3. Admissibility of Evidence – Principles governing the admissibility of evidence

Principles governing the admissibility of evidence; whether wrongfully admitted evidence can constitute a ground for reversing a decision on appeal

“I have carefully studied the first issue and I am of the view that the issue is quite narrow and is principally on admissibility of Exhibit 8 viz a viz the judgment on appeal.
Exhibit 8 is memo from the project manager to Mr. Yu Bihua. It was tendered by the respondent during the hearing of this suit. Section 83 (4) of the Evidence Act, 2011 states: “for the purpose of this section, a statement in a document shall not be deemed to have been made by a person unless the document or the material part of it was written, made or produced by him with his own hand, or was signed or initialed by him or otherwise recognized by him in writing as one for the accuracy of which he is responsible.” In the case of OMEGA BANK NIG PLC v O.B.C LTD (2005) 8 NWLR (pt. 928) 247 @ 577 the Supreme Court held: “the law is settled that a Court can only act upon evidence that is legally admissible. It cannot, and it has no discretion to admit and act upon evidence which is legally inadmissible, even with the consent of the parties. See KALE v. COKER (1982) 12 SC 252; ALADE v OLUKADE (1976) 2 SC 183. As was held in this case, there is nothing in the evidence act that makes Exhibit 8 inadmissible, it is a written report by the appellant adverse to its interest. See S.S.N.I v. EYUAFE (1976) 9-10 SC 135.

Where no objection is raised when a document is offered in evidence, the document will be admitted and acted upon and the opposing party cannot later complain on its admissibility unless the document is inadmissible by law. See ETIM v. EKPE (1983) 1 SCNLR 120. In any event, the admissibility of the Exhibit 8 was a fresh issue in this Court for which no leave was sought and obtained. It was therefore incompetent.

The Respondents counsel aptly named the main criteria governing admissibility of a document which are:

A. Is the document pleaded ;

B) Is it relevant to the inquiry being tried by the Court;

C) Is it admissible in law.

Respondent’s learned counsel rightly submitted that all the three criteria have been met by the Respondent who pleaded Exhibit 8, and the document is relevant for the inquiry, and is legally admissible.

The contention of the appellant that the document was not tendered by the maker was adequately demolished by Respondents counsel who referred to the case of OMEGA BANK (NIG) PLC v. O.B.C LTD wherein the Supreme Court held that:

“Relevance is the key to admissibility. As a matter of law, documentary evidence can be admitted in the absence of the maker. “

See IGBODIM v OBINAKE (1976) 9-10 SC 179.

After all relevancy is the key of admissibility in the hierarchy of our adjectival law, probative value comes after admissibility and so a document could be admitted without attaching probative value to it.

That is the point made the Supreme Court that admissibility and weight to be attached to the document admitted are two different things. See AYENI v. DADA (1978) 3 SC 35. In this instant case, I find that the document Exhibit 8 was pleaded, it is very relevant to the inquiry being tried by the Court and it is admissible in law. It was admitted without objection from the Appellant who had a chance to do so. In the case of S.S.N.L v EYUAFE (1976) 9-10 SC 135, the Supreme Court held: “where no objection is raised when a document is offered in evidence, the document will be admitted and acted upon and the opposing party cannot later complain on its admissibility unless the document is inadmissible by law. See ETIM v. EKPE (1983) 1 SCNLR 120.” In this case, the admissibility xhibit 8 was a fresh issue before this Court for which no leave was sought and obtained.

It is therefore incompetent on that ground alone, this issue is incompetent.

In DAGGASH v. BULAMA (2004) 14 N.W. .R (PT. 892) 144 @230-231 where the Court held inter alia:

“In determining whether a document is admissible in evidence or not, the Court does not consider how the document was obtained. What the Court considers is the purpose for which the document is sought to be tendered or its relevance to the subject in issue.”

As I have already stated in this judgment, the Appellant who had ample opportunity to oppose the admissibility of Exhibit 8 did not do so at the appropriate time therefore he cannot do that here on appeal.

In the case of AKINOLA v UNION BANK NIG PLC (2005) 51 WRN 34 @44-45 this Court held inter alia-

“The document, not being inadmissible at any event, cannot now at his instance be expunged from the record. He should have raised the matter at the trial when the document was tendered. This was the ruling of the Supreme Court in OGUMA v I.B.W.A 1998) 3 SCNJ 13; and YASSIN v BARCLAYS BANK D.C.O (1968) N.M.L.R 380.”

I am fortified in my position by the above Supreme Court authorities that Exhibit 8 was rightly admitted. Should Exhibit 8 be removed in the circumstance of this case?

Respondents counsel rightly argued that the law is trite that a mere wrongful admission of evidence cannot ipso facto lead to a reversal of the judgment but only if there is a substantial miscarriage of justice.

The Supreme Court in the case of OKONJI & ORS v. NJOKANMA &ORS (supra) held inter- alia:

“Wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it shall appear to the appeal Court that the evidence so admitted cannot reasonably be held to have affected the decision and that such a decision would have been made if such evidence had not been admitted. Thus it is not every irregularity that can nullify entire proceedings. In the instant case, the wrongful admission of Exhibit b did not engender any miscarriage of justice.”

The Supreme Court in the case of THE MILITARY GOV. of ONDO STATE & 8 ORS v. KOLAWOLE & ORS (2008) 9 M. J. S.C 203 @ 219 held-

“It is the law that wrongful admission of evidence or wrongful exclusion of evidence does not result in the reversal of a decision when it has not affected the decision of the trial Court such that it would have been different if the error had not been committed (if at all).See Section 227 of the Evidence Act 1990.”

I agree with the contention of the Respondent that the Appellant did not show how the removal of Exhibit 8 will occasion a miscarriage of justice as to vitiate the judgment which burden it failed to discharge. In the case of OKONJI v. NJOKANMA (supra), the Supreme Court held:

“It must however be emphasized that it is the party complaining of wrongful admission that must show that without such evidence the decision complained of would have been otherwise. In other words, the burden is on the appellant. They have not discharged it.”

The argument of Respondent’s counsel that should Exhibit 8 be expunged from the evidence there is still abundant and sufficient evidence to sustain the judgment is the correct position of the law, I find that this position is clearly stated on page 215 of the Record of Appeal.”Per AKINBAMI, J.C.A. read in context


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


This is an appeal against the judgment of the Ekiti State High Court sitting at Ado Ekiti, delivered on the 3rd day of November, 2017 wherein the learned trial judge granted claims of the Respondent.

The Respondent (then Claimant) caused a writ of summons the issued against the appellant (then Defendant) at the High Court of Ekiti State, holden at Ado Ekiti on the 13th of January, 2017. The writ of summons and all frontloaded processes were served on the appellant.

The Appellant filed a statement of defence on 21st day of March, 2017, and frontloaded all its processes in accordance with the rules of Court.

The respondent filed a reply and other processes to the statement of defence dated 5th day of April, 2017.

The respondent filed a motion on notice alongside its writ of summons dated 11th January, 2017 but filed on 13th January, 2017 to restrain the appellant from tampering or doing any manner of work with respect to supply and installation of air conditioning system of the proposed Central Bank of Nigeria state branch building, Ado Ekiti pending the determination of the suit.

The motion was dismissed on the 10th day of May, 2017. Thus disposed the second claim of the Respondent.

Thereafter the matter proceeded to trial and upon conclusion of trial, the lower Court found for the respondent on the 3rd day of November, 2017.

The appellant was dissatisfied with the judgment and accordingly lodged this appeal.

SUMMARY OF FACTS

The respondent claimed against the appellant the sum of ₦280, 627, 422:70k (Two Hundred and Eighty Million, Six Hundred and Twenty Seven Thousand, Four Hundred and Twenty Two Naira, Seventy Kobo) being the amount due for work done and the fluctuations arising therefore based on the sub contract agreement between the parties for the supply and installation of air conditioning and ventilation system of the proposed development of Central Bank of Nigeria, State branch building, Ado Ekiti with particulars.

On 17th day of January, 2013 the parties entered into agreement for the supply and installation of air conditioning and ventilation system of the proposed Central Bank of Nigeria, branch building Ado-Ekiti, upon the terms set out therein. The terms agreed would not run expressly due to interventionist forces and or supervening impossibility to wit-non availability of forex and fluctuations thereof and non payment for executed jobs.

The parties could not resolve their misunderstanding leading to the termination of the sub contract agreement on the 24th day of October, 2016.

Thus the Respondent approached the Court for payment for work done and the further expenses incurred to procure the equipment as agreed by the parties. The trial Court in a well considered judgment found for the respondent at the conclusion of trial.

The Appellant however appealed against the judgment on the amended notice of appeal dated and filed on the 9th day of February, 2018 on the order of this Court given on the 21st day of February, 2018.

The Appellants in the Appellants Brief of Arguments distilled three issues from the three grounds of appeal as follows:

1. Whether Exhibit 8, the alleged valuation report, dated 20th June, 2016, which is an unsigned document, which was not made or produced by the writer with his own hand and in which no foundation was laid for tendering it is admissible in evidence? (Ground 1)

2. Whether in the circumstances of this case the failure of the appellant to reply to the fluctuation letters of the claimant (now Respondent) to the defendant (now Appellant) respectively dated 18th June, 2015, 4th August 2015, 12th February, 2016 could be regarded as consent of the appellant to pay the respondent for the said fluctuations. (Ground 2).

3. Whether the fluctuation claims of ₦225,304,590 was specifically pleaded and strictly proved by the respondent. (Ground 3).

The Respondent on their part distilled two issues for the determination of this appeal as follows:

1. Whether Exhibit 8 is not admissible in evidence and whether the judgment of the trial Court is vitiated if it is expunged. (Ground 1)

2. Whether the trial Court was not right in awarding the respondents claim in the sum of ₦ 225,304,590.00k based on the evidence before the Court as consented to by the appellant. (Grounds 2&3).

I have carefully perused the Record of Appeal and the Briefs of counsel to the parties, I am of the view that Respondents issues encapsulate Appellants issues. I will therefore determine this appeal on Respondents issues.

The Respondents counsel on issue one referred to page 347-348 of the record of appeal wherein the learned trial judge referred to Exhibit 8 and concluded that the Respondent was entitled to the variation amount.

Counsel contended that the trial judge relied on Exhibit 8 an unsigned document which was not written in the hand writing of the alleged maker and it was not tendered by the maker. In support of the above contention counsel referred to cases of AGABIA v. AGHARANYA (1999) 6 NWLR (part 607)362; FASEHUN v. A.G FEDERATION (2006) 6 NWLR (PT.975)141; GARUBA v. KWARA INVEST. CO LTD. 2 ORS (2005) 5 NWLR (pt 917) 160; GBADAMOSI &ANOR v. BIALA &ORS (2014) LPELR 24389 (CA); IKELI & ANOR v. AGBER (2014) LPELR-22653 (CA); A.P.G.A v ALH UMARU TANKO AL-MAKURA & 3 ORS (2016) EJSC VOL37 PAGE 98 @151 Para A-C.

The Respondent in reply to Appellants contention in arguing issue one submitted that Exhibit 8 is legally admissible in evidence and the trial judge was right to act upon it. He relied on the Supreme Court case of OMEGA BANK NIG PLC v. O.B.C LTD (2005) 8 NWLR (PT.928)247 AT 557. Counsel further dwelling on Exhibit 8 submitted that the exhibit was duly signed in compliance with Section 83(4) of the Evidence Act, 2011 L.F.N, 2004. That l. B. Opoetu as distinct from the heading and the initialing satisfies the requirement of Section 83(4) Evidence Act, 2011. He cited the case of ACB PLC. v HASTON NIG. LTD (1997) 8 NWLR (PT. 515) 110 @ 125.

Counsel contended further that the Exhibit 8 was pleaded and it is relevant in the inquiry before the Court. See the case of OKONKWO OKONGI &ORS v. GEORGE NJOKANMA & ORS (1999) 14 NWLR (pt. 638) 250 @266 .

Counsel further submitted that three main criteria govern admissibility of a document in evidence namely:

1. Is the document pleaded?

2. Is it relevant to the inquiry being tried by the Court?

3. Is it admissible in law?

Counsel was categorical that the three criteria were met by Exhibit 8. Counsel punctured the contention of appellants that the exhibit was not tendered by the maker by referring to the cases of OMEGA BANK (NIG) PLC v. O.B.C LTD (SUPRA); DAGGASH v BULAMA (2004) 14 N.W.L.R (PT. 829) 144 @ 230-231.

It was strenuously argued by counsel that Exhibit 8 being legally admissible cannot be expunged now at the instance of the Appellant.

That the Appellant did not object to the admission of Exhibit 8 at the trial Court if he had any reservation. He cited the case of ALHAJI AKINOLA v. UNION BANK NIG PLC (2005) 51 W.R.N 34 @ 44-45.

In his further arguments on Exhibit 8, Counsel asked the question – should Exhibit 8 be legally inadmissible (which he denied) will the removal vitiate the judgment of the trial Court?

The counsel’s answer was in the negative. He contended that the law is trite, that a mere wrongful admission of evidence cannot ipso facto lead to a reversal of the judgment but only if there is a substantial miscarriage of justice. See the case ofOKONKWO OKONJI & ORS v. GEORGE NJOKANMA & ORS (SUPRA); THE MILITARY GOV . of ONDO STATE & ORS v . KOLAWOLE & ORS(2008) 9 M.J.S.C 203 @219.

The counsel submitted that the burden lies on the Appellant to show how the removal of Exhibit 8 will occasion a miscarriage of justice as to vitiate the judgment which burden it failed to discharge. See OKONJI v. NJOKANMA.

Finally on this issue, counsel submitted that should Exhibit 8 be expunged from the evidence, there is abundant and sufficient evidence to sustain the judgment. That the Respondent pleaded and led evidence as to the work done and the sum outstanding which the appellant admitted to the sum outstanding and the valuation. See page 215 of the Record of Appeal especially Exhibit D3.

Concluding on issue one counsel, submitted that there is no merit in this appeal.

I have carefully studied the first issue and I am of the view that the issue is quite narrow and is principally on admissibility of Exhibit 8 viz a viz the judgment on appeal.

Exhibit 8 is memo from the project manager to Mr. Yu Bihua. It was tendered by the respondent during the hearing of this suit. Section 83 (4) of the Evidence Act, 2011 states: “for the purpose of this section, a statement in a document shall not be deemed to have been made by a person unless the document or the material part of it was written, made or produced by him with his own hand, or was signed or initialed by him or otherwise recognized by him in writing as one for the accuracy of which he is responsible.”
In the case of OMEGA BANK NIG PLC v O.B.C LTD (2005) 8 NWLR (pt. 928) 247 @ 577 the Supreme Court held: “the law is settled that a Court can only act upon evidence that is legally admissible. It cannot, and it has no discretion to admit and act upon evidence which is legally inadmissible, even with the consent of the parties. See KALE v. COKER (1982) 12 SC 252; ALADE v OLUKADE (1976) 2 SC 183. As was held in this case, there is nothing in the evidence act that makes Exhibit 8 inadmissible, it is a written report by the appellant adverse to its interest. See S.S.N.I v. EYUAFE (1976) 9-10 SC 135.

Where no objection is raised when a document is offered in evidence, the document will be admitted and acted upon and the opposing party cannot later complain on its admissibility unless the document is inadmissible by law. See ETIM v. EKPE (1983) 1 SCNLR 120. In any event, the admissibility of the Exhibit 8 was a fresh issue in this Court for which no leave was sought and obtained. It was therefore incompetent.

The Respondents counsel aptly named the main criteria governing admissibility of a document which are: A. Is the document pleaded ;

B) Is it relevant to the inquiry being tried by the Court; C) Is it admissible in law.

Respondent’s learned counsel rightly submitted that all the three criteria have been met by the Respondent who pleaded Exhibit 8, and the document is relevant for the inquiry, and is legally admissible.

The contention of the appellant that the document was not tendered by the maker was adequately demolished by Respondents counsel who referred to the case of OMEGA BANK (NIG) PLC v. O.B.C LTD wherein the Supreme Court held that:

“Relevance is the key to admissibility. As a matter of law, documentary evidence can be admitted in the absence of the maker. “

See IGBODIM v OBINAKE (1976) 9-10 SC 179.

After all relevancy is the key of admissibility in the hierarchy of our adjectival law, probative value comes after admissibility and so a document could be admitted without attaching probative value to it.

That is the point made the Supreme Court that admissibility and weight to be attached to the document admitted are two different things. See AYENI v. DADA (1978) 3 SC 35. In this instant case, I find that the document Exhibit 8 was pleaded, it is very relevant to the inquiry being tried by the Court and it is admissible in law.

It was admitted without objection from the Appellant who had a chance to do so. In the case of S.S.N.L v EYUAFE (1976) 9-10 SC 135, the Supreme Court held: “where no objection is raised when a document is offered in evidence, the document will be admitted and acted upon and the opposing party cannot later complain on its admissibility unless the document is inadmissible by law. See ETIM v. EKPE (1983) 1 SCNLR 120.” In this case, the admissibility of Exhibit 8 was a fresh issue before this Court for which no leave was sought and obtained.

It is therefore incompetent on that ground alone, this issue is incompetent. InDAGGASH v. BULAMA (2004) 14 N.W.L.R (PT. 892) 144 @230-231 where the Court held inter alia:

“In determining whether a document is admissible in evidence or not, the Court does not consider how the document was obtained. What the Court considers is the purpose for which the document is sought to be tendered or its relevance to the subject in issue.”

As I have already stated in this judgment, the Appellant who had ample opportunity to oppose the admissibility of Exhibit 8 did not do so at the appropriate time therefore he cannot do that here on appeal.

In the case of AKINOLA v UNION BANK NIG Plc. (2005) 51 WRN 34 @44-45 this Court held inter alia-“The document, not being inadmissible at any event, cannot now at his instance be expunged from the record. He should have raised the matter at the trial when the document was tendered. This was the ruling of the Supreme Court in OGUMA v I.B.W.A (1998) 3 SCNJ 13; and YASSIN v BARCLAYS BANK D.C.O (1968) N.M.L.R 380.”
I am fortified in my position by the above Supreme Court authorities that Exhibit 8 was rightly admitted. Should Exhibit 8 be removed in the circumstance of this case?

Respondents counsel rightly argued that the law is trite that a mere wrongful admission of evidence cannot ipso facto lead to a reversal of the judgment but only if there is a substantial miscarriage of justice.
The Supreme Court in the case of OKONJI & ORS v. NJOKANMA &ORS (supra) held inter- alia:

“Wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it shall appear to the appeal Court that the evidence so admitted cannot reasonably be held to have affected the decision and that such a decision would have been made if such evidence had not been admitted. Thus it is not every irregularity that can nullify entire proceedings. In the instant case, the wrongful admission of Exhibit b did not engender any miscarriage of justice.”

The Supreme Court in the case of THE MILITARY GOV. of ONDO STATE & 8 ORS v. KOLAWOLE & ORS (2008) 9 M. J. S.C 203 @ 219 held-

“It is the law that wrongful admission of evidence or wrongful exclusion of evidence does not result in the reversal of a decision when it has not affected the decision of the trial Court such that it would have been different if the error had not been committed (if at all).See Section 227 of the Evidence Act 1990.”

I agree with the contention of the Respondent that the Appellant did not show how the removal of Exhibit 8 will occasion a miscarriage of justice as to vitiate the judgment which burden it failed to discharge. In the case ofOKONJI v. NJOKANMA (supra), the Supreme Court held:

“It must however be emphasized that it is the party complaining of wrongful admission that must show that without such evidence the decision complained of would have been otherwise. In other words, the burden is on the appellant. They have not discharged it.”

The argument of Respondent’s counsel that should Exhibit 8 be expunged from the evidence there is still abundant and sufficient evidence to sustain the judgment is the correct position of the law, I find that this position is clearly stated on page 215 of the Record of Appeal.

From all I have elucidated above, I resolve Issue One in favour of the Respondent.

RESOLUTION OF ISSUE TWO

“Whether the trial Court was not right in awarding the respondents claim in the sum of ₦ 225,304,509.00k based on the evidence before the Court as consented to by the Appellant.”

This particular issue is distilled from grounds two and three.

In arguing ground three, appellants counsel submitted that it is the law that special damages must be specifically pleaded and strictly proved . That the sum of ₦225,304,590.00 (Two Hundred and Twenty Five Million, Three Hundred and Four Thousand, Five Hundred and Ninety naira) claimed by the Respondent and awarded to it at the lower Court is in the nature of special damages.

That a cursory look at the Statement of Claim on page 7 of the record of appeal shows that it was not specifically pleaded. Also the Statement on Oath of the lone Respondents witness and his evidence in Court shows that it was not strictly proved. What strict proof means is that the sum awarded must lend itself to qualification or precise calculation by the learned trial Judge, and neither the Respondent nor the trial Judge was able to show how it arrived at the sum of ₦225,304,590.00k awarded by the trial judge. Counsel submitted further that the Appellant has tried to calculate from the four fluctuation letters how the Respondent arrived at this figure. Moreover, it is not the duty of the Court to do this investigation.

In that, it is the duty of the Respondent to show the Court by precise calculation how it arrived at this figure.

Counsel urged this Court to hold that the sum of (Two Hundred and Twenty Five Million Three hundred and Four Thousand, Five Hundred and Ninety Naira) awarded by the Court to the Respondent has not been specifically claimed and strictly proved.

In support of the assertion, counsel referred to the following cases:

1) C.U NWANJI v. COASTAL SERVICES (NIG) LTD (2004) 6 SCNJ 146
2) G. BADMUS & ANOR v. A.O ABEGUNDE (1999) 7 SCNJ 96
3) NARINDEX TRUST LTD & ANOR v. NIGERIAN INTER-CONTINENTAL MERCHANT BANK LIMITED (2001) 4 S.C.N.J 208
4) B. J . NGILARI v. MOTHER CAT LTD (1999) 12 S.C.N.J.

In his reply, learned counsel for the Respondent on their Issue Two which is in pari material with Appellant’s Issue Three.

Counsel submitted that the trial Court was right in awarding the fluctuation sum, this is because the appellant consented to it and the Respondent proved its case.

That Exhibits 3(1); 3(2); 3(3) & 3(4) which are letters of the Respondent to the Appellant informing it of the fluctuations, are legally admissible evidence which the Court can act upon. See the case ofOMEGA BANK (NIG) PLC v. O.B.C LTD (supra).

Learned counsel reiterated the point that the said exhibits were not objected to when they were tendered at the trial.

The appellant acknowledged receipts of the exhibits during cross examination. And it was also the evidence that he was first informed orally, to which it assented that the Respondent should source for forex in the black market, because of non availability of forex in the regular market. Counsel referred to pages 11, 12, of the Statement of Claim. See also Exhibit 4 which is letter from Diamond Bank Plc informing of lack of forex due to the lack of forex sales by C.B.N.

Counsel submitted that the trial Court was therefore right in holding that the appellant gave its consent to the fluctuation. See the case of IGA v. AMAKIRI (1976) 1 SC AT 12; GWANI v EBULE (1998) 5 NWLR (149) 201 AT 211. In IGA v AMAKIRI (supra), the Supreme Court held that silence means consent. This is the case especially where a person’s silence will prompt the other to change his position.

Counsel reiterated the fact that Exhibits 3(1)-(4) were made variously as the goods were imported and delivered to the Appellant, and the Appellant never deemed it necessary to refute or deny responsibility. For instance, Exhibits 3(1) & 3(2) respectively were written on the 26th of February, 2016 & 12th of February, 2016 while Exhibits 3(3)&(4) were made on the 4th of August, 2015 and 18th of June, 2015 respectively, the appellant took delivery of the imported goods which were duly installed. See Exhibit 6(1), (2) (3) (4) (5) (6) (7) (8) i.e bundles of waybills for delivery of equipment and acknowledgment by the appellant.

Learned counsel further submitted that the Appellant in the circumstances is estopped from denying its consent and or responsibility to the expenses arising from the fluctuation having by its conduct and in action caused the respondent to procure the equipment on aggravated rate. See the case of A.G RIVERS STATE v. A.G AKWA IBOM & ANOR (2011) 3 MJSC 1; MENAKAYA v. MENAKAYA (1996) 9 N.W.L.R (Pt. 472) 256.

The Respondent submitted that the Court would not allow itself to be used as an instrument to perpetrate deceit as the Appellant received the goods and benefited exceedingly from the transactions. See the cases of ADEDEJI v NATIONAL BANK of NIGERIA LTD (1989) 1 NWLR (Pt. 96) 212; GAABA v. LOBI BANK (NIG) LTD (2003) F.W.L.R (Pt.173) 106.

The Respondent’s counsel in his further submissions contended that the trial Court evaluated the evidence placed before the Court before reaching its decision and that the appellate Court cannot therefore interfere with the decision of the trial Court except it is shown to be perverse or the findings made are not supported by the evidence relied on. See the case of MILITARY GOVERNOR ONDO STATE v KOLAWOLE (2008) 9 M.J.S.C 203. It was further submitted by Respondent’s counsel that the appellant has not demonstrated how the trial Court’s evaluation is perverse, or that the trial Court drew wrong principles of law. The submission of the appellant at page 12 of the Appellant’s brief, paragraphs 4.3-4.7 is a frugal attempt to re-evaluate the evidence. See the case of A.G NASARAWA v A.G PLATEAU (2012) 3 M.J.S.C (pt. 111) 118.

It was pointed out by the counsel that contrary to the assertion of the appellant paragraph 4.3 of its brief, it is on record that the contract was to be completed on 30th November, 2016, that the contract was not to be funded only by the Respondent but by both the Respondent and the Appellant to provide money for funding.

That the Respondent did not inform the Appellant of the fluctuation before importations. That payment was to be made on monthly basis for work done on the monthly valuations, but the Appellant failed.

Counsel urged this Court to discountenance the submissions. See the case of MBA-EDE v. OKUFO (1990) 2 N. W. L.R (Pt. 135) 787 @ 795.

Counsel reiterated the fact that the Appellants silence amounts to consent and that the failure of DW1, to produce before the Court the letter of their non-acceptance of the fluctuations, is that same does not exist. And that the Defendants silence on the fluctuation can be construed to mean consent.

The Respondent’s counsel is of the strong view that the trial judge was right in awarding the fluctuation sum to the respondent. That the fact that the Appellant consented to the transaction as alleged means admission. And what is admitted need no more proof.

Counsel submitted further that Respondent proved its claim with particulars of work. The Respondent pleaded copiously at paragraphs 10, 11, 12, 13 , & 15 of the Statement of Claim specifically what was imported and the cost, prices, and dates of importation.

The Respondent further pleaded when the goods were delivered, and receipted by the Appellant. The Respondent pleaded communicating the fluctuation rate to the Appellant, and duly tendered all necessary documents.

Exhibit 3(1), 3(2), 3(3), 3(4) stated clearly the dollar rate to the naira at the time material to the importations i.e (1) ₦ 320 to $1 in 2016, (2) ₦ 210 to $1 in 2015. And detailed calculations were made in the said exhibits which were tendered and admitted in evidence without objections.

Counsel also reiterated the fact that the respondent gave evidence in line with its pleadings. He referred to paragraphs 9,10,11,12, &13 of the record of appeal.

It was observed by the Respondent that the Appellant did not refute or cross examine on the fluctuation as to oppose it. That it is settled law that a party who does not accept the entire testimony or some part of the testimony of an adverse or some part of the testimony of an adverse party’s witness but fails to cross examine the witness the Court is entitled to treat the failure to cross-examine as acceptance that he does not dispute the testimony. See case ofDAGGASH v. BULAMA (2004) 14 N.W.L.R (Pt. 892) 144.

Finally, counsel submitted that the claim of the Respondent as set out is for work done and how much it is worth. The fluctuation claimed are part of expenses incurred in the execution of the work to which evidence was led accordingly.

The Court found that the Respondent proved the claim and awarded same. Most importantly counsel contended that appellant cannot pick and set up a different claim for the respondent for the purposes of appeal. See ESANGBEDO v THE STATE (1989) 4 N.W.L.R (pt. 113) 57.

The Respondents counsel on the findings of the trial Court submitted that it is correct, in that the Respondent is entitled to the cost of fluctuations claimed i.e ₦ 225,304,590.00 is one of fact and it is not the business of an appellate Court to embark on a fresh appraisal of the evidence, unless the findings arrived at are perverse. See AYANWALE v ATANDA (1988) 1 N.W.L.R (Pt. 68) 22. Counsel urged this Court to discountenance the submissions of the Appellant, reject and dismiss the appeal for lacking in merit.

In resolving Issue Two, I refer to the judgment of the learned trial Judge where he held that:

“The defendant knew that the importation of the materials would gulp a huge sum of money yet chose to trivialize the issues when the import document were served on them by the claimant. The fruitless steps taken to procure dollar for the importation of the materials and the fluctuations communicated to the defendant, failed to communicate the non acceptance of the fluctuation to the claimant. The failure of DW1, to produce before the Court the letter of their non acceptance of the fluctuation is that same does not exist. In the circumstances, defendants silence on the fluctuation can be construed to mean consent. The defendant having benefited from the transaction i.e having the imported materials delivered to site by the claimant cannot turn around to evade the payment.

In the circumstance, I hold that the claimant is entitled to the cost of fluctuations claimed by them i.e ₦ 225,304,590.00.”

From the excerpt of the judgment being attacked by the Appellant,it is very clear that the Respondent placed all the relevant evidence before the Court in proof of its claim.

Based on Respondent’s evidence the trial Court arrived at the correct finding. The law reports are replete with cases of the Supreme Court and this Court on the issue. In the case of IGA v AMAKIRI & ORS cited by Respondent’s counsel, the Supreme Court per Otutu Obaseki, JSC held – the law is clear and well settled on the point. It may be stated thus: “if a man by his words or conduct willfully endeavors to cause another to believe in a certain state of things which the first knows to be false and if the second believes in such state of things and acts upon his belief, he who knowingly made the false statement is estopped from averring afterwards that such a state of things does not exist at the time; again if a man either in express terms or by conduct, makes a representation to another of the existence of such a state of facts, to the damage of him who so believes and acts, the first is estopped from denying the existence of such a state of facts.

The learned trial judge in my view adhered to the correct principle of law as was held by the Supreme Court in the above case. The Respondent was led to believe that the appellant had approved their communication via Exhibits 3(1)-(4).

The issue whether the trial Court was right in awarding the fluctuation sum to the Respondent.

The relationship between Appellant and Respondent is contractual and the contract is governed by the sub-contract agreement no CHC-CBN-AE/003 i.e Exhibit 1.

The position in this case being contractual the learned trial Judge stated correctly that the parties have embodied the terms of their agreement or contract in a written document as was done in this case, it is to that document that the Court will resort to, while construing the relationship between them. See the case of O. B. LEWIS v. U.B.A PLC (2016) 44 EJ SC 82 @96 .2016 LPELR- 0661 (SC).

In this case, the Appellant refused to pay the Respondent for materials ordered for the subcontract and the price went up as a result of fluctuation in the dollar exchange rate.

The general rule is that where the parties have embodied the terms of their agreement or contract as was done in this case, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument.

The learned trial Judge rightly based his resolution of the disagreement between the Appellant and Respondent on their written sub-contract agreement for air conditioning installation.

On whether the Respondent can claim the fluctuation in the exchange rate of naira to the dollar? I am of the view that the learned trial carefully examined the evidence adduced before the Court and came to the correct decision. In the case of OMEGA BANK PLC v O.B.C. LTD, evaluation of evidence in the case of TINUBU v. KHALIL and DIBBO TRANSPORT LTD (2000) LPELR-3249 (SC) the Supreme Court held – “it is settled that the cardinal duty of a trial Court was to make such findings as deemed appropriate upon facts led at a trial. Where a trial Court failed to discharge that duty, it could be said that there had been a miscarriage of justice. This is because where the trial Court has failed to discharge this primary duty, it becomes difficult for an appellate Court to consider properly the merits of an appeal in the absence of the findings of the trial Court. This is moreso where the evidence would require for consideration of the credibility of witnesses who gave evidence at the trial.”

In this instant case, I am of the view that the learned trial Judge did a very detailed evaluation of the evidence proffered before the Court and arrived at the correct decision which is unassailable.

I do not see any reason to disturb the good decision reached by the trial Judge.

This Court having carefully perused the Record of Appeal and the arguments of counsel for the parties in their Briefs of Argument is of the considered view that the learned trial Judge arrived in his findings at the correct interpretation of the air conditioning sub-contract agreement between the parties.

Consequently this Court will not disturb the conclusion reached by the learned trial Judge. All the Issues are resolved in favour of the Respondent. Appeal lacks merit it is therefore dismissed. Costs is assessed at ₦ 50,000 in favour of the Respondent.

BELGORE, J.C.A.

I have had the advantage of reading in draft the judgement just delivered by my learned brother, F.O. AKINBAMI JCA. All the issues for determination in the appeal have been seen dealth with extensively. I have nothing useful to contribute to the well articulated reasoning’s and the conclusion arrived at in the lead judgment. I can only therefore adopt same as mine and accordingly dismiss the appeal for lacking in merit. Same is dismissed.

ELECHI, J.C.A.

I agree.

Appearances:

I.C. Ifediora, Esq. with him, Benjamin Obidegwu, Esq., A.O.Okeya, Esq., Dr. A. A. Ojo, Esq., S. C. Odofin, Esq. and Ayodele Oguntimehin, Esq. For Appellant(s)

Dr. Fred Okeke, Esq. with him, B.A. Nabena, Esq. For Respondent(s)