OSUMILI & ANOR v. CNPC/BGPINTERNATIONAL

CITATION: (2019) LPELR-46950(CA)

In the Court of AppealIn the Benin Judicial Division

Holden at Benin

ON THURSDAY, 14TH MARCH, 2019Suit No: CA/B/334/2005

Before Their Lordships:

HELEN MORONKEJI OGUNWUMIJU Justice, Court of AppealPHILOMENA MBUA EKPE Justice, Court of AppealSAMUEL CHUKWUDUMEBI OSEJI Justice, Court of Appeal

BetweenMR. FRIDAY OSUMILI(carrying on business under the name and style ofBulu Enterprises)

JONAS ONUCHUKWU(carrying on business under the name and style ofJonah Elect. Enterprises)

- Appellant(s)

AndCNPC/BGP INTERNATIONAL - Respondent(s)

RATIO DECIDENDI

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1. ACTION - COUNTER-CLAIM: Whether evidence must be led insupport of a counter-claim"...a perusal of the Record of proceedings with particular referenceto the evidence of the DW1, DW2 and DW3 show that theRespondent did not lead any form of evidence to support thecounterclaim as pleaded in the Amended Statement of Defence andCounterclaim.Neither the Respondent nor any of its three witnesses made anymention of the counterclaim or any injury or inconvenience sufferedby the act of the Appellants in breaching the terms of the contract.I therefore agree with the submission of the learned counsel for theAppellant that for a counterclaim to succeed, there must be someevidence in proof of same, but this is entirely lacking in theRespondent's counterclaim. As held by the Supreme Court inANWOYI & ORS VS SHODEKE & ORS (2006) 13 NWLR (PT 996) 34."A counter claim is by itself a substantive action which must beproved to the satisfaction of the Court for a counter claimant to beentitled to judgment". It is a weapon of offence which enables adefendant to enforce a claim against a Plaintiff as effectually as inan independent action. See ETUDO & ORS VS ETUDO (2006) LPELR11690 (CA); OGLI-OKO MEMORIAL FARMS LTD VS NACB LTD &ANOR (2008) LPELR (2306) SC. Being an independent action, Rulesof Court as it pertains to pleading and evidence also applies tocounterclaims. Therefore, as averments in pleadings are facts asperceived by a party relying on them, there must be oral ordocumentary evidence to show that the facts pleaded are true.Consequently, pleadings without evidence to support same areworthless and are deemed abandoned. See CAMEROON AIRLINESVS OTUTUIZU (2011) 4 NWLR (PT 1238) 512; DADA VS OGUNSANYA(1992) LPELR (908) SC; OLAREWAJU VS BAMIGBOYE (1987) 3 NWLR(PT 66) 353; EMEGOKWUE VS OKADIGBO (1973) 4 SC 113;MAGNUSSON VS KOIKI (1993) 9 NWLR (PT 317) 287. In the instantcase, having rightly found that there is no evidence to support thefacts as averred in the Respondent's Counter claim, to turn aroundand hold that the same counter claim succeeds in terms of relief 41(b) is contrary and I find this part of the judgment of the trial Courtunacceptable. The award of N10,000.00 as nominal damagescannot therefore stand and I so hold."Per OSEJI, J.C.A. (Pp. 37-39,Paras. C-B) - read in context

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2. APPEAL - INTERFERENCE WITH EVALUATION OF EVIDENCE:Circumstance(s) when an Appellate Court will not interfere withevaluation of evidence made by a Trial Court"The duty of appraising evidence given at a trial is pre-eminentlythat of the Court that saw and heard the witnesses. It is also theright of that Court to ascribe values to such evidence and anappellate Court may not disturb a judgment simply on the grroundthat it could have come to a different conclusion on the facts aslong as the judgment of a trial Court is supported by the evidencerightly accepted by that Court. See ONYIA VS ONIAH (1989) 2 SC(PT 11) 69; AJUMOLA OGUNDOLU & ORS VS CHIEF EMMANUELOLABODE PHILIPS & ORS (1973)2 SC 55. The Appellate Court willonly interfere with such findings if they are perverse and lead to amiscarriage of justice. See OYEWOLE VS AKANDE (2009) 7 SC 137;FRIDAY KAMALU VS DANIEL NWANKUDU (1997) 5 SCNJ 191. In theinstant case, this Court has no cause to interfere with the findingsof the learned trial Judge based on the conclusion that they are notperverse."Per OSEJI, J.C.A. (Pp. 33-34, Paras. D-C) - read in context

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3. CONTRACT - TERMS OF CONTRACT: Whether parties are boundby the terms of their contract; duty of court to give effect to same"...once parties enter an agreement voluntarily and there is nothingto show that the agreement was obtained by fraud, mistake,deception or misrepresentation, the parties are to be bound by theterms freely entered into. That is to say that parties are bound bythe contract they voluntarily entered into and cannot act outsidethe terms and conditions contained in the said contract. See A.G.RIVERS STATE VS A.G. AKWA-IBOM & ANOR (2011) 3 SC 1 and A.G.FERRERO & CO. LTD VS HENKEL CHEMICALS (NIG) LTD (2011) 6-7SC (PT 1) 165.Further to that, it is the law that once the intention of the parties toa contract are clearly expressed in a document, the Court cannotgo outside the document in search of other documents not formingpart of the intention of the parties. What the Court is obliged toconstrue in the absence of ambiguity, is the wording of thatagreement. Vide ZAKHEM CONSTRUCTION (NIG) LTD VS EMMANUELNNEJI (2006) 5 SCNJ 242. In MR SEGUN BABATUNDE VS BANK OFTHE NORTH LTD & 2 ORS (2011) 12 SC (PT V) page 1, the SupremeCourt succinctly made the position very clear as follow:-"The Court of law is bound to give effect to the intention of theparties when they entered into an agreement or contract well speltout in the document they had extended and it is not within themandate of a Court of law to go outside it with the importation of alaw with fresh conditions before what the parties had agreed towould be implemented.Going that contrary way would in effect be a re-writing of a contractfor parties by the Court which would be interloping into what didnot concern it".Therefore, written contract agreement freely entered into by theparties is binding on them."Per OSEJI, J.C.A. (Pp. 10-12, Paras. F-C) -read in context

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4. CONTRACT - NOVATION OF CONTRACT: What novation ofcontract entails"...Interestingly, it is not pleaded anywhere, neither was anyevidence adduced either orally or through documents to show thatthe Respondent was a party to or consented to the subletting whichin my view borders on novation that requires mutual agreement byparties to the original contract. In the case of GROVER VSINTERNATIONAL TEXTILE INDUSTRIES (NIG) LTD. (1976) 11 SC 1,the Supreme Court at page 19 of the Report explained the principleof Novation as follows:-"The law is well settled that a latter agreement by the parties to anoriginal contract to extinguish the rights and obligations that theoriginal contract has created is itself a binding contract, providedthat the latter agreement is either made under seal or supportedby consideration. Consideration raises no difficulty if the originalcontract sought to be extinguished is still executory. This isbecause each party by the later agreement is deemed to haveagreed to release his rights under the original contract inconsideration of a similar release by the other. Such bilateraldischarge may take the form of dissolution plus replacement. Thus,the parties may extinguish the original contract but substitute anentirely new agreement in its place".In the case of UNION BEVERAGES LIMITED VS OWOLABI (1988) 1NWLR (PT 58) 128, Novation was defined by the Appeal Court as:-"A transaction whereby a new contract or new parties to a contractby consent of both parties express or implied is deemed to havebeen substituted for or with the originally made, or a material partthereof is added to or materially amended."Per OSEJI, J.C.A. (Pp.15-16, Paras. C-E) - read in context

5. CONTRACT - AGREEMENT: Whether parties are bound by theterms of their agreement"...As was held in WILLIAMS EVBUOUMAN & ORS VS JONATHANELEMA & 2 ORS (1994) 7-8 SCNJ 2, if parties enter into anagreement, they are bound by its terms. One cannot legally orproperly read into the agreement the terms on which the partieshave not agreed."Per OSEJI, J.C.A. (Pp. 17-18, Paras. F-A) - read incontext

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6. CONTRACT - TIMING IN CONTRACT: Circumstances where timecan be said to be of the essence in a contract"...In NWAOLISAH VS NWABUFOH (2011) LPELR 2115 (SC) theSupreme Court made it clear that time is of the essence where theparties have expressly made it so or where circumstances showthat it is intended to be of essence."Per OSEJI, J.C.A. (P. 18, Paras.D-E) - read in context

7. EVIDENCE - BURDEN OF PROOF/ONUS OF PROOF: Whether hewho asserts must prove"The basic law of evidence is that he who asserts must prove thatassertion. See Section 140 of the Evidence Act 2011, whichprovides that, when any fact is especially within the knowledge ofany person, the burden of proving that fact is upon him."Per OSEJI,J.C.A. (P. 19, Para. C) - read in context

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8. EVIDENCE - EVALUATION OF EVIDENCE: Duty of trial judge toevaluate evidence and nature of the duty of an appellate court inreviewing such evaluation on appeal"Now, it is the duty of the trial Judge to evaluate the evidence andmake primary findings of fact in a matter presented before theCourt for determination. This duty unless shown not to have beendone according to well laid down principles of law, this Court will bereluctant to interfere with such findings. See ONUOHA VS THESTATE (1998) 5 NWLR (PT 548) 118; WOLUCHEM VS GUDI (1981) 5SC 291; IRIRI VS ERHURHOBARA (1991) 2 NWLR (PT 173) 252. InMOMOH VS UMORU (2011) 15 NWLR (PT 1270) 217 at 244, theSupreme Court provided the following elucidation:-"It is the primary function of a trial Court that sees and hears awitness to assess the credibility of witnesses and to believe any ofthem. The issue of evaluation of evidence of the parties and theirwitnesses and ascription of probative value to their evidence asreceived by the trial Court has the pre-eminence as it sees, hearsand watches the demeanour of the witnesses and so in a betterposition to believe or disbelieve them. An Appellate Court does nothave the opportunity. But as regards documentary evidence, anAppellate Court has as much the same forensic leverage as the trialCourt to form its own opinion on them".Further at pages 274 to 275, the Apex Court continues as follows:-"A trial Judge has a primary duty to receive admissible evidence,assess same, give it probative value and make specific findings offact thereon. He must not impair the evidence, either with hispersonal knowledge of matters not placed and canvassed beforehim or by inadequate evaluation, and should endeavour to avoidvitiating the case presented by the parties through his own wronglystated misapplied principles of law. He must carefully understandand appreciate the issues he has to resolve in the case and thenproceed to resolve them. Its duty is to reach a decision only on thebasis of what is in the issue and what has been demonstrated uponthe evidence by the parties and is supported by law."Per OSEJI,J.C.A. (Pp. 23-24, Paras. A-E) - read in context

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SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering

the Leading Judgment): This appeal emanated from the

judgment of the High Court of Delta State sitting in Bomadi

Division and delivered on the 15th day of March 2005

wherein the Plaintiffs (now Appellants) claim was dismissed

and the sum of N10,000.00 awarded against them as per

the defendant’s counter claim.

The Appellants herein were the plaintiffs in the trial Court

while the Respondent was the Defendant/Counter claimant.

Briefly put, the facts of the case is that the Respondent

entered into a contract with the 2nd Appellant, Jonas

Onuchukwu (carrying on business under the name and

style of JONAH ELECT. ENTERPRISES) for the supply of

500 pieces of 10kg Exact Anchors to the Respondent.

The contract is as contained in Exhibit ‘B’ which is a Local

Purchase Order (LPO) No 101424 and dated 8/2/2002. It

requires the items to be supplied latest on 2/3/2002 and

further provides that “Any delay LPO will be cancelled”.

The 2nd Appellant sublet the contract to the 1st Appellant

Mr. Friday Osumili (carrying on business under the name

and

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style of BULU ENTERPRISES). The 2nd Appellant claimed

to have supplied the 500 pieces of Exactly built Anchor to

the Respondent’s premises and thus requested for payment

of the sum of N1, 500,000.00 which is the amount agreed in

the contract. The Respondent refused payment because the

items were not supplied within the time stipulated in the

contract and also that there is no privity of contract

between it and the 2nd Appellant.

Sequel to this development, the 1st and 2nd Appellants

initiated an action at the High Court of Delta State via a

writ of Summons filed on 12/6/2002.

In paragraph 28 of the Amended Statement of claim they

sought the following reliefs against the Respondent:-

“WHEREFORE the plaintiff claims against the

defendant is as follows:

28. The sum of N1.5 million Naira being the contract

sum in respect of a contract to supply 500 units of

10kg Exact Anchors covered by Local Purchasing

Order No. 101424 issued by the defendant to the 2nd

plaintiff on the 8th day of February 2002. The 1st and

2nd Plaintiffs duly supplied the said Anchors in strict

compliance with the conditions contained in the

aforesaid LPO

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inclusive of any variation. The defendant who has

their base at place of Peace Ekpan a place within the

jurisdiction of this Honourable Court sum despite

repeated demands.

The plaintiff also claim 10% per month as interest on

the said contract debt till judgment is delivered in

this Suit.

The Respondent reacted by filing a statement of defence

and counterclaim and in paragraph 41 of the Amended

Statement of defence and counterclaim, it claimed against

the Appellants as follows:-

41. WHEREFORE, the Defendant claims against the

plaintiffs jointly and severally as follows:-

a) The sum of N2,000.00 (Two Thousand Naira) daily

being money paid to 2 soldiers, 2 Mopol, 2 Navy

(Naval Officers) and 1 Diamond security personnel

daily at the rate of N300.00 each and N200.00 for the

Diamond security personnel who kept watch over the

Exact Anchors the plaintiff dumped near the

Defendant’s Jetty Area, from the 15th day of March

2002 till judgment is delivered in this suit.

b) The sum of N10, 000,000.00 (Ten Million Naira) as

General Damages for breach of contract.

c) Interest on the said sum claimed in paragraph “a”

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above at the rate of 10% per annum from 15/03/2002

until judgment and thereafter until final payment.

The Appellants also filed a reply to statement of defence

and counterclaim.

Upon conclusion of exchange of pleadings, the trial

commenced on 20/1/2004. In proof of their claim, the 1st

Appellant testified and tendered some documents. He also

called one other witness.

The Respondent on the other hand called three witnesses in

its defence and also tendered some documents in evidence.

At the conclusion of hearing, counsel for the parties

addressed the Court. Judgment in the suit was

subsequently delivered on 15/3/2005 wherein the Court

made the following orders:-

”In view of the foregoing and earlier findings, I make

the following orders :-

1. The Plaintiffs claim as stated in paragraph 28 of

the amended Statement of Claim is hereby dismissed.

2. The counter claim of the Defendant as contained in

paragraph 41 (a) & (e) is hereby dismissed.

3. The claim of the Defendant as in paragraph 41 (b)

of the amended statement of Defence and counter

claim succeeds but I shall award only nominal or

minimal damages of N10,000.00 in favour of the

Defendant against the 2nd Plaintiff.

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4. Costs of this action will be borne by the two

plaintiffs as follows: N5, 000.00 costs to be paid by

the 1st plaintiff to the Defendant and N2,000.00 by

the 2nd plaintiff to the Defendant.

Dissatisfied with the said judgment, the Appellants filed a

notice of appeal on 10/5/2005 and it contains four grounds

of appeal.

In compliance with the relevant Rules of this Court, the

parties filed and served their respective briefs of argument

which they subsequently adopted and relied on at the

hearing of the appeal on 22/1/2019.

In the Appellants brief of argument filed on 2/6/2010, the

following three issues were formulated for determination:-

1. “Whether the learned trial Judge was right when he

held that the plaintiff did not supply the anchors

within time in view of the evidence adduced by the

parties to the action at the trial. (Grounds 1 and 3)

2. Whether the learned trial Judge made proper

evaluation of the evidence before it and drew proper

inferences therein having regard to the evidence and

state of pleading before it. (Grounds 2 and 6).

3. Whether the learned trial Judge was right in law

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when he awarded general damages to the

defendants/Respondents on the counterclaim.

(Ground 5)”.

The Respondents Amended brief of argument was filed on

31/10/2018. Therein two issues were formulated as

follows:-

1. “Whether the Appellants complied with a

fundamental term in the contract entered into with

the Respondent. (Ground 1 and 2)

2. Whether the learned trial Judge made proper

evaluation of the evidence before the trial Court and

arrived at a correct conclusion? (Grounds 3 and 4)”.

The parties’ issues 1 and 2 are similar in context. I will

however adopt the three issues raised in the Appellants

brief in the resolution of this appeal.

ISSUE 1

Herein, learned counsel for the Appellant referred to the

finding of the trial Court at pages 66 and 67 of the Record

to contend that the learned trial Judge erred in making

such a finding that is not supported by evidence because

pleadings do not constitute evidence and since there is no

evidence to support the averments in paragraphs 9 and 22

of the Respondent’s pleading, it ought to be taken as

abandoned.

On the other hand, it was submitted that

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the Appellants pleaded and adduced evidence to show that

the items were supplied within time and inspection and

confirmation of same was carried out as stated in the

evidence of PW1 which was corroborated by that of the 1st

Appellant.

He referred to the evidence of the Respondent’s witnesses

to argue that they did not controvert that of the Appellants

in which case the Appellants story as to the supply and

inspection of the items ordered should be taken as correct.

He relied on the case of PASCUTTE VS ADECENTRO

(NIG) LTD (1997) 54 LRCN 2657.

Counsel then urged this Court to hold that the Appellants

supplied the materials within time and in consonance with

the conditions stated in Exhibit ‘B’.

Replying on this issue, learned counsel for the Respondent

submitted that Exhibit ‘B’ which is a Local Purchase Order

(LPO) issued by the Respondent to the 2nd Appellant is the

contract agreement upon which the Appellants founded

their cause of action in the trial Court. He added that the

said Exhibit ‘B’ stipulated that the supply date for the 500

(10 KG) Exact Anchors was 2/3/2002 and provided further

that

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“Any delay LPO will be cancelled”, therefore making time

of the essence in the contract between the Respondent and

the 2nd Appellant.

It was then submitted that parties are bound by any written

agreement on contract entered into by them vide

ANYAEGBUNAM VS OSAKA (2000) FWLR (PT 27)

1942 at 1954 and IDONIBOYE-OBU VS NNPC (2003)

FWLR (PT 146) 959.

Also citing the case of KWARA HOTELS LTD VS ISHOLA

(2002) FWLR (PT 135) 757, it was submitted that the

Appellants cannot by oral evidence introduce words or

terms that are not in Exhibit ‘B’.

Reference was then made to paragraphs 6 – 8 of the

Amended Statement of Defence and counter claim to show

that averment was made on the fact that time was of the

essence in the contract but the Appellants failed to supply

the items within the time prescribed in Exhibit ‘B’ and

these facts were not denied in the Appellants reply to

defence and counterclaim.

In support of the contention that where a contract is made

subject to the fulfilment of certain specified terms and

conditions the contract is not binding unless those terms

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and conditions are complied with or fulfilled, counsel relied

on the following cases:- TSOKWA OIL MARKETING VS

BANK OF THE NORTH LTD. (2002) FWLR (PT 112)

page 1 at 51; REMM OIL SERVICES LTD VS

ENDWELL TRADING COMPANY LTD (2003) FWLR

(PT 152) 98 at 106; BALOGUN VS ALLI-OWE (2000)

FWLR (PT 14) 2335.

It was then urged on this Court to hold that the trial Court

was right in its finding that the Appellants failed to comply

with a fundamental term in the contract when it did not

supply the items within the period stipulated in Exhibit ‘B’.

Given the submissions by counsel for the parties, the first

point to address is the content of Exhibit B, the document

containing the agreement between the parties. The said

Exhibit ‘B’ reads thus: -

CNPC CNPC INTERNATIONAL NIGERIA LIMITED

BGP

35A Adetokunbo Ademola Street, Delivered to:

Victoria Island, Lagos,

Nigeria.

ORIAGBENE

CAMP(CNPC).

LOCAL PURCHASE ORDER

NO: 101424

TO: JONAH ELECT. COMPANY OF: WARRI

DATE: 8/2/2002.

Please supply

Item Qty. Description Rate N K

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500 10kg Exactly Anchors 1,500,000.00

Deduct W H T

Supply Date 2/3/2002

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Any delay LPO will be cancelled

_______________________________________

_______________________________TOTAL N1, 500,000.00

NOTICE TO SUPLIERS: The Company will not accept

any alteration to prices given above. Please attach

“LPO Copy” to your invoice which should also quote

the number of this LPO. Method of payment is by

Cheque on Business Name.

Amount in words: One Million, Five Hundred

Thousand Naira.

Signature:_______________Approved by____________

WHITE SUPPLIER PINKFILE GREEN INVOICE

From the above set out content of Exhibit ‘B’ which forms

the subject matter of contract between the parties, the

Local Purchase Order No. 101424 was dated 8/2/2002 and

it is addressed to Jonah Elect. Company, Warri to supply

500 10kg Exact Anchors to be delivered to the Ogriagbene

camp of the Respondent. The items to be supplied is valued

at the sum of N1,500,000.00 and the supply date is stated

to be 2/3/2002. Clearly stated therein also is as follows:-

“Any delay LPO will be cancelled”.

The first point to note is that, once parties enter an

agreement voluntarily and there is nothing to show

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that the agreement was obtained by fraud, mistake,

deception or misrepresentation, the parties are to be bound

by the terms freely entered into. That is to say that parties

are bound by the contract they voluntarily entered into and

cannot act outside the terms and conditions contained in

the said contract. See A.G. RIVERS STATE VS A.G.

AKWA-IBOM & ANOR (2011) 3 SC 1 and A.G.

FERRERO & CO. LTD VS HENKEL CHEMICALS (NIG)

LTD (2011) 6-7 SC (PT 1) 165.

Further to that, it is the law that once the intention of the

parties to a contract are clearly expressed in a document,

the Court cannot go outside the document in search of

other documents not forming part of the intention of the

parties. What the Court is obliged to construe in the

absence of ambiguity, is the wording of that agreement.

Vide ZAKHEM CONSTRUCTION (NIG) LTD VS

EMMANUEL NNEJI (2006) 5 SCNJ 242. In MR SEGUN

BABATUNDE VS BANK OF THE NORTH LTD & 2 ORS

(2011) 12 SC (PT V) page 1, the Supreme Court

succinctly made the position very clear as follow:-

“The Court of law is bound to give effect to the

intention of the parties when they entered into an

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agreement or contract well spelt out in the document

they had extended and it is not within the mandate of

a Court of law to go outside it with the importation of

a law with fresh conditions before what the parties

had agreed to would be implemented.

Going that contrary way would in effect be a re-

writing of a contract for parties by the Court which

would be interloping into what did not concern it”.

Therefore, written contract agreement freely entered into

by the parties is binding on them.

In the instant case, the Appellants’ contention is that by the

said Exhibit ‘B’, time is not of the essence in the supply of

the items stated in the contract and besides, that the 1st

Appellant duly supplied the said item within time and

therefore entitled to the payment of the contract sum.

For the Respondent, it was contended that the deadline for

the supply of the items was clearly stated in Exhibit ‘B’ with

a caveat that the LPO will be cancelled if there is any delay

and this the Respondent did by a letter dated 3/3/2002

when the 2nd Appellant failed to meet the deadline.

Therefore, the Appellants having failed to comply with the

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terms of the contract have no justification in bringing any

action to enforce same.

Now, one thing is very obvious upon perusal of Exhibit ‘B’

(the LPO), it was clearly stated therein that the supply date

is 2/3/2002 and that any delay will result in the LPO being

cancelled.

Armed with the fact that the 2nd Appellant (Jonah Elect.

Enterprises) named in the LPO as the supplier failed in

meeting with the time schedule for the supply of the items.

The Respondent in a letter signed by the camp manager

and dated 3/3/2002 (that is a day after the deadline) wrote

to inform the 2nd Appellant that the LPO has been

cancelled due to the delay in supplying the 500 Units of

10kg Exactly built Anchors and which delay caused the

company a big loss. For purposes of clarity, I herein below

set out the content of the said letter ‘Exhibit G’:-

“CNPC BGP/CNPC Int. Nigeria Limited

BGP

Date: 3rd March, 2002.

JONAH ELECT. COMPANY,

WARRI.

SIR,

SUBJECT: CANCELLATION OF LOCAL PURCHASE

ORDER REF: 101424

With reference to the above subject matter, I am

directed to draw to your notice or rather the

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knowledge of your establishment that the L.P.O for

the supply of 500 units of 10kg Exactly built Anchor

dated 8th February, 2002 has been cancelled.

This cancellation is due to the fact that your

establishment was asked to supply these items on or

before the 2nd of March 2002, but they were not

supplied and as thus, this delay caused the entire

company a big teal.

The fact that the supply business was not contracted

by MR. WANG ZHONG HUA, it is not a criteria for

your establishment to delay the supply.

For the fact as well, that your establishment could not

reach up to the agreed date, the supply was then

given to another supplier or rather contractor of

which has met the company’s requirement.

We hope your company will co-operate with us.

Thanks for your anticipated co-operation.

Faithfully yours.

WANG SHING HUA

Camp Manager.

The letter no doubt speaks for itself and given the

agreement as per Exhibit ‘B’, the Respondent to my mind

acted within the ambit of the agreed terms and conditions.

One important point to note is that the contract for the

supply of the items was made between the

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Respondent and the 2nd Appellant who from available

evidence failed to meet or comply with the terms as per the

time limit for the said supply. Exhibit ‘G’ was then written

to the 2nd Appellant on 3/3/2002 to cancel the L.P.O, as

clearly stated in the contract.

The 2nd Appellant has no answer to this but relied on the

fact that he sublet the contract to the 1st Appellant because

he had no money to execute it and this is customary in that

type of business for which the Respondent is aware.

Interestingly, it is not pleaded anywhere, neither was any

evidence adduced either orally or through documents to

show that the Respondent was a party to or consented to

the subletting which in my view borders on novation that

requires mutual agreement by parties to the original

contract. In the case of GROVER VS INTERNATIONAL

TEXTILE INDUSTRIES (NIG) LTD. (1976) 11 SC 1, the

Supreme Court at page 19 of the Report explained the

principle of Novation as follows:-

“The law is well settled that a latter agreement by the

parties to an original contract to extinguish the rights

and obligations that the original contract has created

is

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itself a binding contract, provided that the latter

agreement is either made under seal or supported by

consideration. Consideration raises no difficulty if the

original contract sought to be extinguished is still

executory. This is because each party by the later

agreement is deemed to have agreed to release his

rights under the original contract in consideration of

a similar release by the other. Such bilateral

discharge may take the form of dissolution plus

replacement. Thus, the parties may extinguish the

original contract but substitute an entirely new

agreement in its place”.

In the case of UNION BEVERAGES LIMITED VS

OWOLABI (1988) 1 NWLR (PT 58) 128, Novation was

defined by the Appeal Court as:-

“A transaction whereby a new contract or new parties

to a contract by consent of both parties express or

implied is deemed to have been substituted for or

with the originally made, or a material part thereof is

added to or materially amended”.

I have stated earlier in this judgment, the contract as per

exhibit ‘B’ is between the Respondent and the 2nd

Appellant but he unilaterally opted to sublet the contract to

the 1st

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Appellant because, according to him, he did not have the

money to execute the supply as agreed in the (LPO) Exhibit

‘B’. This was done without the knowledge or consent of the

Respondent. He rather relied on the belief that it is not

unusual for such practice of subletting to take place in that

line of business with the Respondent. The simple question

then is, in the event of any breach, who will the aggrieved

party confront for a relief and do so legally when it dawns

on them that there is no privity of contract between the

original party and the stranger whose involvement in the

transaction is without mutual consent or agreement by the

original parties to the contract.

In the circumstance, I hold that the 1st Appellant has no

business whatsoever with the contract entered into

between the Respondent and the 2nd Appellant. Vide the

(LPO) exhibit ‘B’ dated 8/2/2002. This is so in the absence

of any proof that the principle of Novation was complied

with by the parties to the original contract.

As was held in WILLIAMS EVBUOUMAN & ORS VS

JONATHAN ELEMA & 2 ORS (1994) 7-8 SCNJ 2, if

parties

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enter into an agreement, they are bound by its terms. One

cannot legally or properly read into the agreement the

terms on which the parties have not agreed.

On this premise, it is not in doubt that the Respondent

entered into a contract with the 2nd Appellant for the

supply of 500 units of 10kg Exactly built Anchors to be

supplied latest on 2/3/2002 and this the 2nd Appellant

failed or neglected to fulfil, thereby giving the Respondent

the right to cancel the L.P.O. as per the terms and

conditions of the contract given that under the

circumstance and as clearly indicated in Exhibit ‘G’ (letter

of cancellation) time was of the essence in the execution of

the contract.

In NWAOLISAH VS NWABUFOH (2011) LPELR 2115

(SC) the Supreme Court made it clear that time is of the

essence where the parties have expressly made it so or

where circumstances show that it is intended to be of

essence.

In this case, both by express provision in Exhibit ‘B’ and by

content of Exhibit ‘G’, it is not in doubt that time was of the

essence in the contract between the Respondent and the

2nd Appellant.

I must add by the way that granted that all things being

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equal, the 1st Appellant was properly in agreement as a

party to the contract, there is no evidence that the items he

claimed to have supplied to the Respondent’s camp in

Ogriagbene was done within the stipulated time. At least

there is no documentary proof as to the receipt of same by

the Respondent on a particular date before 2/3/2002

deadline. Moreso, the 1st Appellant in his evidence, stated

under cross examination, that he could not remember the

date he supplied the materials.

The basic law of evidence is that he who asserts must prove

that assertion. See Section 140 of the Evidence Act 2011,

which provides that, when any fact is especially within the

knowledge of any person, the burden of proving that fact is

upon him. He asserted that he supplied the items on time

but could not prove even the date it was supplied to the

Respondent.

On the whole, I hold that time is of the essence in the

contract and there was no fulfilment of that condition by

the Appellants.

The issue is therefore resolved against the Appellant.

ISSUE 2.

Dwelling on this issue, learned counsel for the Appellant

submitted that the learned trial Judge did not make

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proper and correct evaluation of the evidence adduced at

the hearing of the matter at the trial Court thereby leading

to improper conclusion.

Reference was made to the finding of the learned trial

Judge at page 66 of the Record to contend that it did not

flow from the evidence placed before the Court especially

as it affects Exhibit ‘G’ which according to him was not

delivered to the Appellants.

He added that, having failed to establish that the

Appellants were served with Exhibit ‘G’, the Respondent

cannot be seen to enjoy the benefit of belief by the learned

trial Judge. Further reference was made to the evidence of

the 1st Appellant at page 47 and 48 of the Record which

explained why the relevant documents for payment were

not signed and payment made, contrary to the reason given

by the learned trial Judge.

The same goes for the finding of the learned trial Judge at

page 66 of the record on the issue whether the 1st

Appellant supplied the ordered items within time.

He added that the issue of supply within time was settled

by the testimony of the 1st Appellant and the PW1 in which

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case it ought to be considered together with his response

during cross examination which the learned trial Judge

considered in isolation.

Learned counsel also referred to the findings of the learned

trial Judge at page 68 lines 8 to 42 of the Record to submit

that the analysis made thereon does not flow from the

pleadings and evidence adduced at the trial and as such

occasioned a miscarriage of justice.

Also referring to the evidence of the 1st Appellant and PW1

with regard to the subletting of the L.P.O. as a normal

practice and was made known to the Respondent, it was

submitted that this was not contradicted by the Respondent

who alluded to the fact that there was a negotiation with

the 1st Appellant having regard to the averments in

paragraphs 16, 17 and 18 of amended statement of defence

and counterclaim. He contended that it shows that the 1st

Appellant was an integral part of the whole contract and

not a stranger as stated by the learned trial Judge and this

renders his findings unsustainable.

In their reply, learned counsel for the Respondent

submitted that from the state of pleadings especially as

contained in Exhibit ‘B’, the transaction that gave rise to

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the cause of action was between the 2nd Appellant and the

Respondent and this the learned trial Judge addressed at

page 68 lines 19 to 29, and 38 to 46 of the Record wherein

he made specific findings of fact which were not appealed

against by the Appellants in which case such findings

remains subsisting. It was further submitted that the 2nd

Appellant having purportedly assigned his interest in the

contract to the 1st Appellant no longer has the legal

backing to sue the Respondent. Also as between the 1st

Appellant and the Respondent, there is no privity of

contract because the proper party to ordinarily enforce any

breach of contract is the 2nd Appellant who unfortunately

has sublet the contract without however showing in

evidence any document or authority in that regard.

Also relying on the case of A.G. FEDERATION V A.I.C.

LTD (2000) FWLR (PT 26) 1744, counsel submitted that

a beneficiary to a contract who is not a party to the

contract cannot sue in respect thereof.

It was also submitted that in the light of the specific finding

of the trial Court that the 1st Appellant is a stranger to the

contract between the 2nd Appellant and the Respondent

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the joint reliefs sought by the Appellants cannot be granted

moreso that the 1st Appellant lacks the locus standi to

initiate the suit against the Respondent.

Now, it is the duty of the trial Judge to evaluate the

evidence and make primary findings of fact in a matter

presented before the Court for determination. This duty

unless shown not to have been done according to well laid

down principles of law, this Court will be reluctant to

interfere with such findings. See ONUOHA VS THE

STATE (1998) 5 NWLR (PT 548) 118; WOLUCHEM VS

GUDI (1981) 5 SC 291; IRIRI VS ERHURHOBARA

(1991) 2 NWLR (PT 173) 252. In MOMOH VS UMORU

(2011) 15 NWLR (PT 1270) 217 at 244, the Supreme

Court provided the following elucidation:-

“It is the primary function of a trial Court that sees

and hears a witness to assess the credibility of

witnesses and to believe any of them. The issue of

evaluation of evidence of the parties and their

witnesses and ascription of probative value to their

evidence as received by the trial Court has the pre-

eminence as it sees, hears and watches the

demeanour of the witnesses and so in a better

position to believe or

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disbelieve them. An Appellate Court does not have the

opportunity. But as regards documentary evidence, an

Appellate Court has as much the same forensic

leverage as the trial Court to form its own opinion on

them”.

Further at pages 274 to 275, the Apex Court continues as

follows:-

“A trial Judge has a primary duty to receive

admissible evidence, assess same, give it probative

value and make specific findings of fact thereon. He

must not impair the evidence, either with his personal

knowledge of matters not placed and canvassed

before him or by inadequate evaluation, and should

endeavour to avoid vitiating the case presented by the

parties through his own wrongly stated misapplied

principles of law. He must carefully understand and

appreciate the issues he has to resolve in the case and

then proceed to resolve them. Its duty is to reach a

decision only on the basis of what is in the issue and

what has been demonstrated upon the evidence by the

parties and is supported by law”.

Armed with the above set out guideline and admonition, I

have carefully perused the judgment of the trial Court, with

particular reference to the portions thereof at pages 66

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and 68 of the record as per the Appellants’ complaint. For

ease of reference and clarity, the said portions are herein

below set out:-

“The evidence of plaintiff on the fundamental point of

whether he supplied within time is a sorry one. He

said under cross examination “I cannot remember the

date I supplied the Exact Anchors”. Paragraph 23 of

the amended statement of claim which I had

reproduced earlier states that “Plaintiff shall contend

that time was not in essence of the contract and that

the contract was not cancelled expressly or

impliedly”. I fail to allude to this. The contract as in

Exhibit ‘B’ was not an open ended one. It had a time

limit which was not met by the plaintiff. I hold that

the Plaintiff delivered these anchors outside the

contract period. Exhibit ‘G’ is a response to the

failure of the plaintiff to meet the time stipulated.

This no doubt was responsible for the waybill and

Invoice not being signed by the Defendant, and why

payment was not made.”

Further at page 68 lines 8 to 42, the learned trial Judge

held thus:-

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“It was contended by the Defendant’s counsel that

there is no privity of contract between the 1st

Plaintiff and Defendant as the LPO Exhibit was issued

to Jonah Electrical Co. In response to this, Plaintiff’s

counsel urged and submitted that the issue of

subletting a contract is a usual practice in the

company and this is known to all the parties, Exhibit

B which is the LPO bears the name of Jonah Electrical

Co. Referring to 2nd Plaintiff. Exhibit F, the waybill

bears the name of Bulu Enterprises whilst Exhibit E

which is the sales Invoice bears Bulu Enterprises,

both referring to 1st Plaintiff. This is clearly untidy

and not one to be encouraged in any business

practice. The Defendant obviously was not aware of

any assignment of the contract to 1st plaintiff by 2nd

plaintiff and I dare say that Exhibit E and F are

extraneous materials to this contract as 1st plaintiff

has failed to show a meeting of minds on this

subletting as he referred to it. Obviously, the 1st

Plaintiff is a total stranger to this contract and he

alluded to it in Exhibit C, a letter he wrote to the

Defendant on 29/4/02 about two months after the

expiration of the contract period. I like to quote from

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this letter as follows: “Besides, sometimes in

February 2002, your company issued LPO No. 101424

to one Jonah Electrical Company Warri and same LPO

issue to Jonah Electrical Warri was subletted to our

company for execution. And as a fact, our company

supplied the five hundred “10kg” “Exact Anchors”.

Exhibit G is a letter dated 3/2/02 to Jonah Electrical

Cancelling the LPO for not meeting the specified

time. The letter was addressed to Jonah Electrical,

2nd Plaintiff. This clearly shows that 1st Plaintiff is a

stranger to this transaction and the first time that

Defendant knew of the interest of the 1st Plaintiff was

on 29/4/02 as in Exhibit C above; by this time, the

contract had been determined by Exhibit G dated

3/2/02. Agreements are sacrosanct and must be

treated as such, I do not hesitate to agree with

Defendant’s counsel that in terms of this contract 1st

Plaintiff has no stake”.

Now, on the complaint by the Appellants’ counsel that the

holding of the learned trial Judge to the effect that the

”Plaintiffs delivered the ordered items outside the contract

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period and Exhibit ‘G’ is a response to the failure of the

Plaintiffs to meet the time stipulated”.

I refer back to the view of this Court while considering

issue 1 wherein the point whether or not there was delivery

of the ‘Exactly built Anchor’ within the period stipulated in

Exhibit ‘B’ (the contract) was exhaustively addressed. It

will therefore amount to a cheap repetition to embark on a

second voyage of discovery in this issue 2. The bottom line

therefore is that this Court agrees with the finding of the

learned trial Judge that there is no evidence presented by

the Appellants to show that the items were delivered within

time as claimed by them, moreso that the 1st Appellant

during cross examination stated emphatically that he could

not remember the date he supplied the items to the

Respondent’s camp. This therefore gives the Respondent

the legal stand to cancel or terminate the contract as

expressly provided for in Exhibit ‘B’ without much ado.

On the contention by the Appellants’ counsel that the

finding of facts by the learned trial Judge at page 68

(earlier reproduced) does not flow from the pleadings and

evidence

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adduced at the trial and thereby engendered a miscarriage

of justice.

A perusal of the parties pleadings show clearly that issues

were joined, not only on whether time was of the essence in

the supply of the ordered items but also on whether the 1st

Appellant was part of the contract between the Respondent

and 2nd Appellant as contained in Exhibit ‘B’. In the

Appellants’ amended statement of claim paragraphs

4,5,6,7,7(a), 8 and 23 are relevant and they are herein

below set out:-

4. Plaintiff avers that on or about the 8th day of

February 2002, the defendant awarded to the 2nd

Plaintiff a contract to fabricate and supply 500 pieces

of 10kg exact Anchors vide a Local Purchasing Order

No. 101424.

5. Plaintiff avers that 2nd Plaintiff sublet the said

contract to the 1st Plaintiff because he does not have

the fund to execute the said contract. Plaintiff shall

establish by way of evidence at the hearing of this suit

that this practice is normal in the defendant

company.

6. Plaintiffs avers that this said sublet is known to the

defendant as it is a common practice in the defendant

company.

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7. Plaintiffs aver that the 1st Plaintiff duly fabricated

the said anchors and supplied same to the defendant

company at Ogriagbene.

7(a). Plaintiffs aver that the anchors were duly

supplied to the defendants’ yard at Ogriagbene after

due clearance from the defendant’s officials. Plaintiff

shall establish by way of evidence the procedure of

supplying items in the defendant company.

8. Plaintiffs aver that when the 1st Plaintiff presented

his waybill and invoice for approval for payment, the

defendant Camp Manager one Mr. Wang Zheng Hua

refused to approve the documents for payment.

Plaintiff shall rely on the said waybill and invoice at

the hearing of this suit.

23. Plaintiff shall contend at the hearing of this Suit

that time was not of essence of the contract and that

the contract was never cancelled expressly or

impliedly. Plaintiff shall establish by way of evidence

the procedure adopted by the defendant’s company in

situation like this. Relevant documents needed to

establish this fact are hereby pleaded”.

On the other hand, the relevant paragraphs in the

Respondent’s Amended Statement of Defence and

counterclaim are paragraphs 6, 7, 8 and 9. They read thus:-

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7. In further answer to paragraph 4 of the Statement

of Claim, the Defendant states that apart from

making the 2nd Plaintiff aware of the importance of

time factor in the supply contract, it also emphasized

on the form, weight and type of the Anchor that

should be supplied. The Defendant in so doing put

into consideration the high risks usually associated

with water operations as well as the safety standard

required of it by the oil industry in general and its

client, Nigeria Agip Oil Company (NAOC) in

particular. This is informed by the fact that the lives

and safety of Defendant’s personnel and property on

its marine and swamp oriented operation are of

utmost priority.

8. Paragraphs 5 and 6 of the Statement of Claim are

further denied. The Defendant states that the 2nd

Plaintiff never supplied the Exact Anchors as required

of her by the Defendant and in line with known and

accepted business practice. The defendant knew

nothing about the introduction of the 1st Plaintiff in

the supply business. The defendant was alerted one

morning in the 2nd week of March, 2002 by some of

its camp workers that somebody, who they could not

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identify stealthily dumped a few number of glaringly

less than 10kg Exact Anchors near the Defendant’s

Ogriagbene Base, Jetty Area and disappeared into

thin air. This was well over ten (10) days when the

2nd Plaintiff was by LPO No. 101424 of 08/2/2002

required to supply 500 pieces of 10kg exactly built

Exact Anchors on 02/03/2002 by the Defendant.

9.In further answer to paragraphs 5, 6, 7, 7(a) of the

statement of Claim, the Defendant avers that it will

contend at the trial that no waybill was presented,

signed and the items received from the 2nd Plaintiff

or her agent in connection with the items indicated

on Defendant’s LPO No.101424 of 08/02/2002 to the

Plaintiff. There was also no inspection, weighing,

counting and formal receipt of the items by any staff

whatsoever of the Defendant from the 2nd Plaintiff or

her agent. The Defendant will contend that there is

no privity of contract between it and the 1st Plaintiff

in the transaction”.

Evidence was also led in line with the above averred facts

as shown in the testimony of the 1st Appellant at page 47 to

50 of the Record. This applies to the testimony of the PW1

at

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pages 43 – 44 and that of the DW1 and DW3 at pages 51 –

54 of the Record. This state of affairs is indeed contrary to

the contention of the Appellants counsel to the effect that

the Respondent did not lead evidence in support of the

substantial part of the pleading. In the main, therefore I

have no cause to complain about the evaluation of evidence

and the finding of facts made by the learned trial Judge.

The reasoning and conclusion of the Court while

considering issue 1 on the status of the 1st Appellant in the

contract between the Respondent and 2nd Appellant as

well as whether time is of the essence in the contract based

on Exhibit ‘B’ is quite apposite in giving a positive nod to

the approach adopted by the learned trial Judge in his

findings.

The duty of appraising evidence given at a trial is pre-

eminently that of the Court that saw and heard the

witnesses. It is also the right of that Court to ascribe values

to such evidence and an appellate Court may not disturb a

judgment simply on the grround that it could have come to

a different conclusion on the facts as long as the judgment

of a trial Court is supported by the evidence

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rightly accepted by that Court. See ONYIA VS ONIAH

(1989) 2 SC (PT 11) 69; AJUMOLA OGUNDOLU & ORS

VS CHIEF EMMANUEL OLABODE PHILIPS & ORS

(1973)2 SC 55. The Appellate Court will only interfere

with such findings if they are perverse and lead to a

miscarriage of justice. See OYEWOLE VS AKANDE

(2009) 7 SC 137; FRIDAY KAMALU VS DANIEL

NWANKUDU (1997) 5 SCNJ 191.

In the instant case, this Court has no cause to interfere

with the findings of the learned trial Judge based on the

conclusion that they are not perverse.

This issue is therefore resolved against the Appellants.

ISSUE 3

Dwelling on this issue, learned counsel for the Appellants

submitted that a counterclaim is a separate action on its

own. Therefore, for a counterclaim to succeed, there must

be credible evidence to sustain it, but in the instant case,

no evidence was led on the Respondent’s counterclaim in

support of the averments in the pleadings in which case it

should be deemed abandoned because, like a substantive

action, it is subject to rules of pleadings and evidence. Vide

AKANMU VS ADIGUN 7 NWLR (PT 304) 218. Counsel

referred to the judgment of the trial Court at

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page 67 of the Record to argue that having concluded that

the Respondent did not provide materials in proof of the

damages suffered, the learned trial Judge still held that the

Respondent is entitled to award of damages to assuage the

1st Defendant.

He added that the Respondent did not lead any oral

evidence to prove that it suffered any damages as pleaded

in the counter claim.

Replying on this issue, learned counsel for the Respondent

submitted that the nominal damages of N10,000.00

awarded by the learned trial Judge against the Appellants is

justified because what was awarded is nominal damages

and not general damages as contended by the Appellants.

He added that the Respondent need not prove damages

suffered to entitle it to a grant of nominal damages as held

in W.B.P VS A.T. & E CO. LTD (2017) ALL FWLR (PT

881) 1007.

It was then urged on this Court to resolve the issue against

the Appellant.

In resolving the Respondent’s counterclaim, the learned

trial Judge held at page 67 of the Record as follows:-

“The next issue is that of the Defendant’s

counterclaim. Counsel for the Defendant has

abandoned paragraph

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41 a, and c of the amended Statement of Defence and

Counterclaim. These claims are accordingly

dismissed. The only claim left is that of 10 million

Naira being general damages for the breach of

contract. Defendant did not provide any evidential

material to enable this Court have a glimpse of the

type of pecuniary damage or loss suffered by the

Defendant. However, since it is general damages, this

Court has the discretion to award or not to award and

the quantum is also at the Court’s discretion. Having

held that Plaintiff was in breach of contractual

obligation, it would flow naturally that damages

would have been suffered by the Defendant and

damages should assuage the Defendant.

Now, paragraph 41 (a to c) of the Amended Statement of

Defence and Counter claim contains the reliefs sought in

the counterclaim and the Respondent having opted to

abandon reliefs (a) and (c) what was left to be decided on

was relief (b) which reads thus:-

“(b) “The sum of N10,000,000.00 (Ten Million Naira)

as General damages for breach of contract”.

The learned trial Judge rightly made a finding that the

Respondent did not provide any evidential

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material to enable the Court have a glimpse of the type of

pecuniary damage or loss suffered by the Respondent.

He proceeded however to make the following order at page

69 of the Record:-

“(3) The claim of the defendant as in paragraph 41

(b) of the Amended Statement of Defence and

counterclaim, succeeds but I shall award only

nominal or minimal damages of N10,000.00 in favour

of the defendant against the 2nd Plaintiff”.

However, a perusal of the Record of proceedings with

particular reference to the evidence of the DW1, DW2 and

DW3 show that the Respondent did not lead any form of

evidence to support the counterclaim as pleaded in the

Amended Statement of Defence and Counterclaim.

Neither the Respondent nor any of its three witnesses made

any mention of the counterclaim or any injury or

inconvenience suffered by the act of the Appellants in

breaching the terms of the contract. I therefore agree with

the submission of the learned counsel for the Appellant that

for a counterclaim to succeed, there must be some

evidence in proof of same, but this is entirely lacking in the

Respondent’s counterclaim. As held by the

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Supreme Court in ANWOYI & ORS VS SHODEKE & ORS

(2006) 13 NWLR (PT 996) 34. “A counter claim is by

itself a substantive action which must be proved to the

satisfaction of the Court for a counter claimant to be

entitled to judgment”. It is a weapon of offence which

enables a defendant to enforce a claim against a Plaintiff as

effectually as in an independent action. See ETUDO &

ORS VS ETUDO (2006) LPELR 11690 (CA); OGLI-OKO

MEMORIAL FARMS LTD VS NACB LTD & ANOR

(2008) LPELR (2306) SC.

Being an independent action, Rules of Court as it pertains

to pleading and evidence also applies to counterclaims.

Therefore, as averments in pleadings are facts as perceived

by a party relying on them, there must be oral or

documentary evidence to show that the facts pleaded are

true. Consequently, pleadings without evidence to support

same are worthless and are deemed abandoned. See

CAMEROON AIRLINES VS OTUTUIZU (2011) 4 NWLR

(PT 1238) 512; DADA VS OGUNSANYA (1992) LPELR

(908) SC; OLAREWAJU VS BAMIGBOYE (1987) 3

NWLR (PT 66) 353; EMEGOKWUE VS OKADIGBO

(1973) 4 SC 113; MAGNUSSON VS KOIKI (1993) 9

NWLR (PT 317) 287.

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In the instant case, having rightly found that there is no

evidence to support the facts as averred in the

Respondent’s Counter claim, to turn around and hold that

the same counter claim succeeds in terms of relief 41 (b) is

contrary and I find this part of the judgment of the trial

Court unacceptable. The award of N10,000.00 as nominal

damages cannot therefore stand and I so hold.

This issue is therefore resolved in favour of the Appellant.

On the whole, this appeal succeeds in part and it is

accordingly allowed in part.

Except for the order awarding N10,000.00 as nominal or

minimal damages in favour of the Respondent which is

hereby set aside, the judgment of the High Court of Delta

State delivered on the 15th day of March 2005 is hereby

affirmed.

I make no order as to costs.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have

read the judgment just delivered by my learned brother,

SAMUEL CHUKWUDUMEBI OSEJI JCA. I agree with the

reasoning and conclusion that the appeal has merit only in

relation to the award of the nominal damages against the

Appellant.

My learned brother has given an exhaustive and erudite

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consideration of the issues in controversy and I have

nothing useful to add. I affirm the judgment of the trial

Court except the order of nominal damages. I abide by the

order as to costs.

PHILOMENA MBUA EKPE, J.C.A.: I have had the benefit

of reading in draft the lead Judgment of my learned

brother, SAMUEL CHUKWUDUMEBI OSEJI, JCA just

delivered. I agree entirely with the reasoning and the

conclusion reached.

I too, hold that issues one and two be resolved against the

Appellant while issue three is resolved in favour of the

Appellant. I too agree that this appeal succeeds in part and

is accordingly allowed in part. The order of in favour of the

Respondent is set aside

The Judgment Of the High Court of Delta State delivered on

the 15th day of March 2005 is hereby affirmed.

I make no order as to costs.

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Appearances:

A.I. Onodjefemue For Appellant(s)

F.O. Olokor with him, Victor Olokor ForRespondent(s)

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