ASHAKA CEMENT PLC v. ASHARATULMUBASHSHURUN INVESTMENT LTD

CITATION: (2016) LPELR-40196(CA)

In the Court of AppealIn the Kaduna Judicial Division

Holden at Kaduna

ON FRIDAY, 29TH JANUARY, 2016Suit No: CA/K/46/2014

Before Their Lordships:

UWANI MUSA ABBA-AJI Justice, Court of AppealHABEEB ADEWALE OLUMUYIWA ABIRU Justice, Court of AppealAMINA AUDI WAMBAI Justice, Court of Appeal

BetweenASHAKA CEMENT PLC - Appellant(s)

AndASHARATUL MUBASHSHURUN INVESTMENT LIMITED - Respondent(s)

RATIO DECIDENDI1 EVIDENCE - RE-CALLING OF WITNESSES: Whether Court can re-call a witness

"It is not in contest that the grant or refusal of an application by a party seekingto recall a witness and to reopen a case to lead additional evidence is entirely atthe discretion of the trial Judge - Ogbodo v. Odogha (1967) NMLR 400, Willoughbyv. IMB Ltd (1987) 1 NWLR (Pt.48) 105, Nebo v. Federal Capital DevelopmentAuthority (1998) 1 NWLR (Pt.574) Orisakwe & Sons Ltd v. Afribank Plc (2012)LPELR-CA/J/11/2005, Iyawe v. Mene (2014) LPELR-CA/B/374/2012."Per ABIRU,J.C.A. (P. 32, Paras. B-D) - read in context

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2 EVIDENCE - ADMISSIBILITY OF EVIDENCE: Position of the law on admissibilityof statement or document made during negotiation to settle dispute"The position of the law on the admissibility of a statement made or documentwritten in the course of negotiation to settle a dispute has since been resolved byour Courts. In Ashibuogwu v. Attoney General Bendel State (1988) 1 SC 248,Nnaemeka-Agu, JSC put the law thus:"A statement made in the course of a negotiation of the compensation or theoffer of such a compensation would, in my view, be analogous to a statementmade "without prejudice" during a negotiation. The law has always taken theview that parties should speak freely in attempting a settlement of their disputes.That freedom of discussion will be seriously prejudiced if any offer or admissionmade in the process of the negotiation could be given in evidence and be used tosupport a party's case in Court afterwards, should the negotiation break down.Where such negotiations are made by written communication they are usuallymarked "without prejudice" and are inadmissible against the parties in that suit.But it is recognized that in some circumstances it is not essential that the words"without prejudice" should have been used: it may be implied that negotiationswere conducted on this understanding. Hence in Mole v. Mole ..., oralcommunications to a conciliator by a party to a matrimonial dispute was treatedas having been made without prejudice. See also Pool v. Pool ...; Henley v. Henley... Although these two cases deal with privilege attaching to statements madeduring negotiations as between a husband and his wife during a dispute, theprinciple is rather broadly - based. The learned authors of Phipson On Evidence(11th Ed) put it thus . . . 'Offers of compromise made expressly or impliedly'without prejudice" cannot be given in evidence against a party as admissions;the law on grounds of public policy, protects negotiation bona fide entered intofor the settlement of disputes.' The privilege is, however that of the parties."?In other words, an offer or admission made in a written document in the courseof negotiation between parties to resolve a dispute is inadmissible against theparty that made it in a subsequent litigation on the subject matter of the dispute,whether or not that document was marked "without prejudice". This statement oflaw was reiterated by the Supreme Court in Fawehinmi v. Nigeria Bar Association(No. 2) (1989) 2 NWLR (Pt.105) 558 and by this Court in Akanbi v. Alatede (Nig)Ltd (2000) 1 NWLR (Pt 639) 125, Kolo v. First Bank of Nigeria Plc (2003) 3 NWLR(Pt.806) 216, Ibiyeye v. Gold (2011) LPELR-CA/L/M/95/2010 and Acmel Nigeria Ltdv. First Bank of Nigeria Plc (2014) 6 NWLR (Pt.1402) 158. This principle was givena partial statutory imprimatur in Section 196 of the Evidence Act which reads "astatement in any document marked "without prejudice" made in the course ofnegotiation for a settlement of a dispute out of Court, shall not be given inevidence in any civil proceeding in proof of the matters stated in it."Per ABIRU,J.C.A. (Pp. 21-23, Paras. B-E) - read in context

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3 EVIDENCE - ADMISSIBILITY OF DOCUMENTARY EVIDENCE: Position of lawwhere a party fails to object to admissibility of document at pre-trial stage"It is the view of this Court that though it is desirable that a party should indicateat the pretrial conference of a matter if it is going to object to the admissibility ofany document that the other party has listed as one to be relied on at trial, thefailure to so indicate cannot, should not, prevent the party from raising anobjection to admissibility at trial. This is because that proper time for a party toobject to the admissibility of a document is at the time it is tendered in evidence -Lawson-Jack v. Shell Petroleum Development Co (Nig) Ltd (2002) 13 NWLR(Pt.783) 180, Fatubi v. Olanloye (2004) 12 NWLR (Pt.887) 229. The party who wasmisled by the failure of the other party to indicate its objection at pretrialconference can be compensated in costs, but such failure to indicate should notbe a ground for admitting a document that the Evidence Act states isinadmissible in law. The Rules of Court cannot override a substantivelegislation."Per ABIRU, J.C.A. (P. 24, Paras. A-E) - read in context

4 COURT - DISCRETION OF COURT: How discretion of Court must be exercised inan application"It is trite that when a Court is called upon to exercise its discretion in favour ofan application, it must ensure that it does not act arbitrarily but judicially andjudiciously based on sound principle of law and by giving weight to relevantconsiderations - First Fuels Ltd v. NNPC (2007) 2 NWLR (Pt 1018) 276."Per ABIRU,J.C.A. (P. 32, Paras. D-F) - read in context

5 COURT - DISCRETION OF COURT: What amounts to wrong exercise ofdiscretion of Court"?Thus, for party to succeed in32 showing that a trial Judge exercised hisdiscretion wrongly he has the onus to justify the fact that the discretion was notexercised judicially, i.e. that the discretion was exercised in an arbitrary mannerand without due regard to all relevant considerations of necessary factors or onreliance up on wrong principles - National Bank of Nigeria Ltd v. Guthrie (Nig) Ltd(1993) 3 NWLR (Pt 284) 643 and Statoil (Nig) Ltd v. Star Deep Water PetroleumLtd (2015) 16 NWLR (Pt.1485) 361."Per ABIRU, J.C.A. (Pp. 32-33, Paras. F-C) - readin context

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6 COURT - DISCRETION OF COURT: Guidelines in exercise of discretion to re-calla witness to give additional evidence"The exercise of the discretion to grant an application to recall a witness in civilmatters and to lead additional evidence is not governed by any statutoryprovision and it is largely a matter of practice and it is predicated on the peculiarfacts and given circumstances of the particular case and coupled with itsattendant exigencies. Over the years, the Courts have developed guidelines to beapplied by trial Courts in the exercise of discretion to recall a witness to giveadditional evidence. In Ogbodu v. Odogha (1967) NMLR 400, the Supreme Courtstated that "undoubtedly the discretion to recall a witness by a Judge is one whichshould be exercised with great care, regard being had to the interest of justiceand the desirability of remaining an impartial arbiter between the parties." Thus,great care is the first constraint to the exercise of the discretion. Secondly, inWilloughby v. International Merchant Bank Ltd supra, Obaseki, JSC noted theexercise of the discretion is limited to grant of leave to call fresh evidence andthe learned Justice proceeded to state thus: "what is fresh evidence? I think this isevidence that was not available previously which is designed to be a reply to theevidence given by the other side, on points material to the determination of theissue or any of them. It could not, in my view, be evidence which ought to havebeen led to establish the facts pleaded and meet the issues raised on thepleadings. If it were otherwise, the purpose of pleadings would be defeated."Where the application is made to call evidence which was available to a partywhen the witness testified and it is simply to fortify or strengthen the case of theparty, the discretion will not be exercised in favour of the application - Bassey v.Ekanem (2001) 1 NWLR (Pt.694) 376. Thirdly, also in Willoughby v. InternationalMerchant Bank Ltd supra, Oputa, JSC stated that for the trial Court to exercise thediscretion, the party applying to recall the witness must supply sufficientmaterials relating to why he wants the witness recalled and what he intends toput to the witness and it is on these facts that the trial Judge will decide whetheror not the justice of the case obliges him to exercise his discretion one way or theother. Where this is not done, the trial Judge will be handicapped in exercising itsdiscretion in favour of the application - Musa v. Dalwa (2010) LPELR-CA/J/242/2001."Per ABIRU, J.C.A. (Pp. 33-35, Paras. C-C) - read in context

7 APPEAL - INTERFERENCE WITH EXERCISE OF DISCRETION: Circumstancesunder which an appellate Court will interfere with exercise of discretion of lowerCourt"It is settled law that an appellate Court will rarely interfere with the exercise ofdiscretion by a Lower Court and will only do so where the exercise is based onextraneous issues or where the exercise of such discretion was not bona fide -Integration (Nig) Ltd v. Zumafon (Nig) Ltd (2014) 4 NWLR (Pt.1398) 479."PerABIRU, J.C.A. (P. 37, Paras. A-C) - read in context

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8 CONTRACT - WRITTEN CONTRACT: Effect of a written contract or agreement;Whether Court can re-write it"It is settled law that parties are bound by the contract they voluntarily enter intoand cannot act outside the terms and conditions contained in the contract andneither of the parties to a contract can alter or read into a written agreement aterm which is not embodied in it - African International Bank Ltd v. IntegratedDimensional System Ltd (2012) 17 NWLR (Pt.1328) 1, Lagos State Government v.Toluwase (2013) 1 NWLR (Pt.1336) 555. A Court too must treat as sacrosanct theterms of an agreement freely entered into by the parties as parties to a contractenjoy their freedom to contract on their own terms so long as same is lawful andif any question should arise with regard to the contract, the terms in anydocument which constitute the contract are the invariable guide to itsinterpretation. It is not the business of the Court to rewrite a contract for theparties and it should thus not add to or subtract from or import any provision intothe contract - Omega Bank (Nig) Plc v. O.B.C. Ltd (2005) 8 NWLR (Pt.928) 547, BFIGroup Corporation v. Bureau of Public Enterprises (2012) 18 NWLR (Pt.1332) 209,Daspan v. Mangu Local Government Council (2013) 2 NWLR (Pt.1338) 203, AfrilecLtd v. Lee (2013) 6 NWLR (Pt.1349) 1."Per ABIRU, J.C.A. (Pp. 53-54, Paras. A-A) -read in context

9 INTERPRETATION OF DOCUMENT - RULE OF INTERPRETATION OFDOCUMENT: General rule of interpretation of document"Now, it is settled that in interpreting a document, the document must be read asa whole, and not parts in isolation, and that the different parts of the documentmust be interpreted in the light of the whole document and an effort must bemade to achieve harmony amongst its different parts - Unilife Development CoLtd v. Adeshigbin (2001) 2 SCNJ 116, Mbani v. Bosi (2006) 11 NWLR (Pt.991) 400,Adetoun Oladefi Nig. Ltd v. Nigerian Breweries Plc (2007) 1 SCNJ 375, Agbareh v.Mimra (2008) 2 NWLR (Pt.1071) 378, Nigerian Army Vs Aminu-Kano (2010) 5NWLR (Pt.1188) 429. This principle also applies where the document is part of aseries of documents on the same transaction."Per ABIRU, J.C.A. (P. 58, Paras. A-D)- read in context

10 EVIDENCE - PRESUMPTION IN RECITALS: Meaning of recital; Position of lawwhere it contains statement of existence of facts"A recital is defined as a preliminary statement in a contract or deed explainingthe reasons for entering into it, or the background of the transaction, or showingthe existence of particular facts - Suu v. Jobak Nigeria Ltd (2012) LPELR-CA/IL/76/2010. It is usually preceded by the word "whereas". It is settled thatwhere a recital contains a statement of the existence of a fact, it constitutes anestoppel and the party or parties who made the statement in the recital are notallowed to deny subsequently the existence of that fact - Oyefeso v. UniversityCollege Hospital Board of Management (1930) NCLR 94 at 103, Ejigini v. Ezenwa(2003) 16 NWLR (Pt.846) 420."Per ABIRU, J.C.A. (Pp. 59-60, Paras. E-C) - read incontext

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11 CONTRACT - VARIATION OF CONTRACT : What variation of contract entail;When will it be effective"Variation of contract involves a definite alteration of contractual obligations bythe mutual agreement of both parties. Variation is analogous to the entry by theparties into a new contract. The requirements of offer, acceptance andconsideration are thus imposed. In Goss v. Lord Nugent 110 ER 713 at 716, theCourt stated:"By the general rules of the common law…it is competent to the parties at anytime before breach of it, by a new contract not in writing, either altogether towaive, dissolve, or annul the former agreements, or in any manner add to,subtract from or vary or qualify the terms of it and thus make a contract..."For a variation to be effective, there must be a valid and subsisting contract onfoot between the parties; there must be some form of consensus between theparties as to the obligations which are to be altered; and it must be supported byconsideration - Oriloye v. Lagos State Government (2014) LPELR-CA/L/839 /2007,Unity Bank Plc v. Olatunji (2014) LPELR-CA/K/300/2012. A mutual abandonment ofthe existing rights of the parties under the agreement between them is sufficientconsideration to support a variation of the agreement - Ekwunife v. Wayne (WA)Ltd (1989) 5 NWLR (Pt.122) 422 and Prospect Textile Mills Ltd v. ImperialChemical Industries Plc England (1996) 6 NNLR (Pt.457) 668. Also, considerationwill be said to have been provided where a party would derive a superaddedbenefit from the contract by reason of the variation - Williams v. Roffrey Bros &Nicholas (Contractors) Ltd (1991) 1 QB 1. However, where the agreement is madeexclusively for the benefit of only one party, or where, although it is capable ofbenefiting both parties, the agreement is actually made for the benefit of onealone, it will not be effective to vary the original contract since no considerationwas present - Vanbergen v. St Edmund's Properties Ltd (1933) 213 223. Also,where one party has fully performed his side of the contract and the other party'sperformance has fallen due, no variation can be effective unless it imposes newobligation on the latter. An undertaking to perform an existing obligation does notamount to consideration to make the variation of a contract effective."Per ABIRU,J.C.A. (Pp. 61-63, Paras. A-A) - read in context

12 INTERPRETATION OF DOCUMENT - INTERPRETATION OF DOCUMENT: Howclear words of a document are to be interpreted"Now, it is an elementary principle of interpretation of documents that where thelanguage used by parties in couching the terms or provisions of a document areclear and unambiguous, the Court must give the operative words in the documenttheir simple, ordinary and actual grammatical meaning - Union Bank of Nigeria Plcv. Ozigi (1994) 3 NWLR (Pt 333) 385, Isulight (Nig) Ltd v. Jackson (2005) 11 NWLR(Pt 937) 631, Egwunewu v. Egeagwu (2007) 6 NWLR (Pt 1031) 431."Per ABIRU,J.C.A. (P. 73, Paras. C-F) - read in context

13 PRACTICE AND PROCEDURE - SPECULATION: Whether Courts are allowed tospeculate"It is not the duty of this Court to answer such queries as to do so will be takingthis Court into the realm of speculations, of speculations, an act that is a taboofor this Court to do."Per ABIRU, J.C.A. (Pp. 75-76, Paras. E-A) - read in context

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HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

(Delivering the Leading Judgment) : The Respondent

commenced the action in the Lower Court and its claims

were for:

i. A declaration that the Respondent had successfully

supplied the Appellant with 6,384,469 liters of Low Pour

Fuel Oil (LPFO) into its (Appellant's) Kano Storage facility

or tanks at N75 per liter.

ii. A declaration that the Appellant has paid the Respondent

the sum of N352,058,160.06 out of N478,835,175.00

leaving a balance of N126,777,014.37 unpaid to the

Respondent.

iii. A declaration drat the Respondent is entitled to payment

of the outstanding N126,777,014.37 from the Appellant

being the outstanding balance of the LPFO supplied to the

Appellant.

iv. An Order directing the Appellant to pay to the

Respondent the sum of N126,777,014.37 being outstanding

payment balance on 6,384,469 liters of Low Pour Fuel Oil

(LPFO) the Respondent supplied to the Appellant into its

Kano storage facility or tanks.

v. 10% interest per annum on the judgment sum from the

date of judgment is delivered until the entire judgment sum

is paid or liquidated.

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vi. Cost of filing of this

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suit.

The claims were predicated on an assertion of facts in an

amended statement of claim.

In response, the Appellant filed an amended statement of

defence and counterclaim and its claims by the

counterclaim were for:

i. The sum of N39,270,000 being the value of the shortages

of the Low Pour Fuel Oil (LPFO) supplied to it by the

Respondent.

ii. Interest on the said amount at 10% interest per annum

from the date of judgment until final liquidation of same as

well as legal costs and expenses.

The Respondent filed an amended reply to the amended

statement of defence and a defence to the counterclaim.

The case of the Respondent on the pleadings was that on

the 24th of July, 2007 the parties entered into a contract

for the supply and purchase of Low Pour Fuel Oil (LPFO)

and it was agreed that the Respondent would supply Eleven

Million liters of Low Pour Fuel Oil (LPFO) to the Appellant

and which Low Pour Fuel Oil (LPFO) was to be offloaded

into the Appellant's storage tanks at its offices in Ashaka

and Kano within six weeks and that the unit price per liter

for the supply to Ashaka would be N65.00 while that

of Kano would be

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N59.50 and that payment was to be made within two weeks

of supply of the Low Pour Fuel Oil (LPFO) by the

Respondent and confirmation of its receipt by the

Appellant. It was its case that the contract document was

executed by the representatives of the parties and that due

to exigent circumstances, it applied three times for

extension of the delivery period and that the extensions

were granted and acceded to by the Appellant.

It was the case of the Respondent that in the course of the

supply, the price of the product rose up and it became

impossible for it to continue the supply at the price agreed

per liter and it wrote to the Appellant requesting for a price

review and that the Appellant approved the request and a

price of N75 per liter of Low Pour Fuel Oil (LPFO) was

agreed. It was its case that it supplied the product into the

Appellant's Kano Storage facility and that it sent a delivery

notification to the Appellant and requested the Appellant to

send its official to confirm the delivery and that the

Appellant did so and its Stores Manager wrote confirming

that 6,384,469 liters of Low Pour Fuel Oil (LPFO) was

supplied into its Kano Storage Tank

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and that it had accepted the product as the product

supplied was found to be within the range of the

Appellant's quality parameters from the dip result

conducted. It was its case that the total price of the product

supplied was N478,835,175.00 and out of which the

Appellant paid N352,058,160.06 leaving a balance of

N126,777,014.37 which the Appellant has failed to pay

despite repeated demands.

In its case on the pleadings, the Appellant admitted that on

the 24th of July, 2007 the parties entered into a contract

for the supply and purchase of Low Pour Fuel Oil (LPFO)

and that it was agreed that the Respondent would supply

Eleven Million liters of Low Pour Fuel Oil (LPFO) to it and

which Low Pour Fuel Oil (LPFO) was to be offloaded into its

storage tanks at its offices in Ashaka and Kano within six

weeks and that the unit price per liter for the supply to

Ashaka was N65.00 while that for Kano was N59.50. The

Appellant also admitted that it was agreed that payment

was to be made within two weeks of supply of the Low Pour

Fuel oil (LPFO) by the Respondent and confirmation of its

receipt by the Appellant and that the contract document

was executed by the

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representatives of the parties and also that due to exigent

circumstances, the Respondent applied three times for

extension of the delivery period and that it granted and

acceded to the extensions. The Appellant further admitted

that in the course of the supply, the Respondent wrote to it

requesting for a price review, and it was its case that the

requested review was for N69.50 per liter for delivery to

Kano and N75.00 per liter for delivery to Ashaka and it

conceded that it wrote a letter in response approving a

price increase of N75.00 per liter, but it was its case that

the letter was silent on the point of delivery and that based

on the Respondent's letter of request, the concession must

have been for delivery to Ashaka and not for delivery to

Kano.

The Appellant admitted that the Respondent sent a delivery

notification to it saying that the required quantity of the

product had been delivered into the Kano Storage tanks

and requested it to send its official to confirm the delivery

and it was its case that it sent its officials and that dipping

was carried out to determine the content of the product in

each of the storage tanks and initial examination

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indicated that 6,375,108 liters of LPFO was supplied, but

on evacuation of the LPFO, it was discovered that the

Respondent only delivered 5,321,113 liters, making a

shortfall of 1,053,995 liters of LPFO from the figure of

6,375,1,08 liters earlier indicated and this fact was

communicated to the Respondent. It was its case that the

Respondent admitted the shortfall of the LPFO evacuated

from one of the storage tanks, as different from the initial

reading, and assured it that investigation will be carried

out and the shortfall made up and that there was no

variation of pricing in respect of delivery to its Kano

Storage tanks and that by the terms of the contract dated

the 24th of July, 2007, any amount payable to the

Respondent was subject 5% withholding tax deduction. It

was its case that it was no longer indebted to the

Respondent on the contract and that the Respondent

instituted the action in an attempt to defraud it and it

proceeded to state the particulars of fraud.

On the counterclaim, it was the case of the Appellant that

following the discovery of a shortfall of 1,053,995 liters of

LPFO when the product was evacuated, a dispute arose as

to the exact

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quantity of LPFO supplied and the quantity to be

compensated was not ascertained and that in the course of

conciliation, the Respondent admitted a shortfall of 660,000

liters in a letter dated the 2nd of March,2009.It was its

case that the value of the shortfall of 660,000 liters of LPFO

at the contract sum was N39,270,000.00 and that it was

entitled to receive this sum from the Respondent.

In its amended reply and defence to the counterclaim, the

Respondent referred to an LPFO Supply Agreement

entered into between the parties and which it said

confirmed its claims against the Appellant and it was his

case that the reviewed price of N75.00 per liter agreed by

the parties was a flat rate for all the supplies and that the

allegation of a shortfall of 1.05 Million liters of LPFO was

non-existent and was introduced by the Appellant to bring

confusion. It was its case that the Store Manager of the

Appellant confirmed in writing via email that it supplied a

total of 6,384,469 liters of LPFO into the Kano Storage

tanks of the Appellant and that this was subsequently

confirmed by a hard copy of a report on the quantity of

LPFO supplied and that all the

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subsequent letters written by the Appellant and alleging a

shortfall were afterthoughts. It was its case that it agreed

to absorb 660,000 liters out of the alleged shortfall in its

letter dated 2nd of March, 2009 in the spirit of

reconciliation at a meeting chaired by a third party and also

in return for the Appellant issuing it with a contract for the

further supply of thirty Million liters of LPFO, and not

because it acknowledged any actual shortfall and that it

was not

indebted to the Appellant for any such shortfall.

The matter proceeded to trial and in the course of which

the parties called one witness each and tendered Exhibits

in proof of their respective cases. The records show that in

the course of trial, the Lower Court delivered a Ruling

rejecting in evidence the letter of the Respondent dated the

2nd of March, 2009 which the Appellant sought to tender.

The records also show that after, the Appellant had closed

its defence and the matter was adjourned for adoption of

written addresses, the Appellant filed an application

seeking to reopen its case to lead further evidence and the

Lower Court took arguments on the application and

dismissed same in

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considered Ruling. At the conclusion of the trial and after

final written addresses by the parties, the Lower Court

delivered its judgment wherein it found that the

Respondent delivered 6,384,469 liters of LPFO into the

Kano Storage tanks of the Appellant and that the supply

was made at N69.50 per liter, and not the N75.00 per liter

claimed by the Respondent and it thus entered judgment in

favour of the Respondent, but in a lesser sum than claimed.

It entered judgment for the Respondent in the sum

N91,662,435.44 together with interest at the rate of

10% from date of judgment until full liquidation and the

Respondent was awarded cost in the sum of N60,882.00.

Both the Appellant and the Respondent were dissatisfied

with the judgment. The Appellant caused its Counsel to file

two notices of appeal - (i) notice of appeal dated the 24th of

January, 2014, and which was filed with the leave of this

Court, containing three grounds of appeal and it was

against the two Rulings of the Lower Court rejecting a

letter tendered by the Appellant and dismissing the

application of the Appellant to reopen its case to lead

additional evidence; and (ii) notice of appeal

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dated the 3rd of October 2013 containing seven grounds of

appeal and directed against the final judgment of the Lower

Court. On its part, the Respondent caused its Counsel to

file a notice of cross appeal dated the 23rd of December

2013 against the final judgment of the Lower Court and it

contained two grounds of appeal. These are the three

appeals for resolution in this matter.

In arguing the two appeals of the Appellant, his Counsel

filed a brief of arguments dated the 8th of April, 2014 and

the brief of arguments was deemed properly filed by this

Court on the 2nd of October, 2014. In response, Counsel to

the Respondent filed a brief of arguments dated the 30th of

October, 2014. Counsel to the Appellant filed a reply brief

of arguments dated the 14th of April, 2015 and it was

deemed properly filed by this Court on the 1st of June,

2015. In arguing the cross appeal, Counsel to the

Respondent filed a Cross Appellant's brief of arguments

dated the 10th of March, 2014 on the 12th of March, 2014.

The Appellant, in response, filed Cross Respondent's brief

of arguments dated the 14th of April, 2015 and it was

deemed properly filed by this Court on the 1st of

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June, 2015. The Respondent filed a Cross Appellant's reply

brief of argument dated the 8th of June, 2015 on the 10th

of June, 2015. At the hearing of the appeals and cross

appeal, Counsel to the parties relied on and adopted the

arguments in their respective briefs of arguments.

Counsel to the Appellant formulated seven issues for

determination from the two notices of appeal of the

Appellant. These were:

i. Whether the learned trial Judge was right in finding that

there was a price review from N59.50 to N69.50 per liter

for the supply of Low Pour Fuel Oil (LPFO) into the Kano

Storage tanks.

ii. Whether the learned trial Judge was right in holding that

the Respondent had supplied 6,384,469 liters of Low Pour

Fuel Oil (LPFO) to the Appellant.

iii. Whether the learned trial Judge was right in holding

that the Respondent was entitled to the payment of the sum

of N91,662,435.44 as an outstanding amount due from the

Appellant.

iv. Whether the learned Trial Judge has properly appraised

the evidence adduced.

v. Whether upon proper construction of the agreement

between the parties, Exhibit F was an admission by the

Appellant that it had

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received 6,384,469 liters of (LPFO) from the Respondent.

vi. Whether the refusal of the trial Judge to allow the

Appellant to lead additional evidence was a proper exercise

of judicial discretion.

vii. Whether the letter dated 2nd of March, 2009 from the

Respondent to the Appellant was admissible.

On his part Counsel to the Respondent formulated four

issues for determination in the appeals and he stated them

thus:

i. Whether the learned trial Judge was right in holding that

the Respondent supplied 6,384,469liters of Low Pour Fuel

Oil (LPFO) into the Appellant's Kano Storage facility or

tanks.

ii. Whether the learned trial Judge was right in holding that

the supply of 6,384,469liters of Low Pour Fuel Oil (LPFO)

was made at N69.50 per liter.

iii. Whether in the circumstances of this case, the learned

trial Judge was right in refusing the Appellant's motion to

reopen its case and lead additional evidence.

iv. Whether the learned trial Judge was right in rejecting

the letter dated 2nd March, 2009 being privileged

document.

On the cross appeal, Counsel to the Respondent, as counsel

to the cross appellant,

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formulated only one issue for determination and it was:

''Whether the learned trial Judge was right in holding that

the supply of the 6,384,469 liters of LPFO into the

Appellant's Kano Storage facility or tanks were made at the

rate of N69.50 per liter.''

Counsel to the Appellant, as counsel to the cross

respondent, agreed that there was one issue for

determination in the cross appeal, but he reformulated the

issue thus:

''Whether there was a price review from N59.50 to N75.00

per liter for the LPFO supplied into the Kano Storage tanks

of the Appellant.''

Reading through the notices of appeal of the Appellant,

particularly the notice of appeal against the judgment of

the Lower Court, the notice of cross appeal of the

Respondent and the briefs of arguments of the parties in

this appeal, it is obvious that the issue arising for

determination in the cross appeal is very similar to one of

the issues for determination arising in the appeals of the

Appellant and that the submissions of the Counsel on the

issue in the appeal and cross-appeal were interwoven and

any attempt to segment them and to resolve the appeal and

cross-appeal separately will

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only lead to a segregated reasoning and disjointed

conclusions. This Court will thus consider both the appeals

of the Appellant and the cross-appeal of the Respondent

together.

It is the view of this Court that there are four issues arising

for determination in the appeals and cross appeal and these

are:

i. Whether the learned trial Judge was right in rejecting in

evidence the letter dated 2nd March, 2009 and written by

the Respondent to the Appellant when it was sought to be

tendered by the Appellant in the course of trial.

ii. Whether in the circumstances of this case, the Lower

Court was right in refusing the Appellant's motion filed to

reopen its case and lead additional evidence after the close

of trial.

iii. Whether, based on the oral and documentary evidence

led by the parties, the Lower Court was correct in holding

that the quantity of Low Pour Fuel Oil (LPFO) supplied by

the Respondent into the Appellant's Kano Storage facility

or tanks and for which the Appellant was liable to pay was

6,384,469 liters.

iv. Whether, based on the oral and documentary evidence

led by the parties, the Lower Court was correct in holding

that the

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initially agreed price per liter, N59.50, was subsequentlyreviewed by the parties, and, if so, was the review to theprice of N69.50 or N75.00.The appeals of the Appellant and the cross-appeal of theRespondent will be resolved on these issues fordetermination. All the arguments of Counsel to theparties will be considered under these issues fordetermination and the issues will be dealt with seriatim.

Issue OneGoing to the first issue for determination, this Courtconsiders it pertinent to reproduce what took place inthe Lower Court when the document was sought to betendered, before considering the arguments thereon inthis appeal. The records of appeal read thus:"DW1 - In Paragraph 25 of my deposition dated the29/4/2013 I made reference to a letter dated 2/ 3/ 2009.Oke - We seek to tender the document in evidence.Aliyu - I object to the admissibility of the documentbecause it is a photocopy and proper foundation was notmade as required by Section 89 Evidence Act 2011. Irefer to the case of Anatogu v. lweka II ...Secondly, the document sought to be tendered is notadmissible in evidence because it is a

15

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privileged document made in the process of reconciliation

and the defendant admitted that fact it its amended

statement of defence and in Paragraph 2 of our amended

reply to the amended defence and counterclaim we made

reference to the said document. I refer to Alkadiri

v. Atanda ... also the case of Fawehinmi v. NBA ... I urge

the Court to reject the document and mark it tendered and

rejected.

Oke - In reply, it is trite law that relevancy is the backbone

of admissibility. If the document is relevant, it is

admissible. The document is not made at the reconciliation

process and is not made by the mediator. It was an

admission by the claimant and it is relevant to this case. I

urge the Court to admit it as it is their document.

Aliyu - It is trite that it is only relevance of the document

that governs admissibility. The document must be

admissible in law if it is relevant and it is not admissible in

law if it is not admissible. In the absence of primary

document, where secondary evidence is sought to be

tendered proper foundation must be made....

Court - The objection is upheld. The document dated

2/3/2009 – Resolution Proposal on

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Business Relationship from Asharatul Mubashshirun

Investment Ltd to Managing Director Ashaka Cement Plc is

marked, tendered and rejected pursuant to the decision of

the Supreme Court in the case of Fawehinmi v. NBA ..."

(see pages 57 to 58 of the records)

In arguing the first issue for determination, Counsel to the

Appellant stated that the document tendered and rejected

was listed on the list of documents to be relied on and it

was frontloaded, and in the course of the pre-trial, the

Respondent did not state that he was going to object to the

admissibility of the document and this fact was reflected in

the pre-trial conference report and that by reason of the

pleadings, list of documents and the pretrial conference

report, the case of Fawehinmi v. NBA was inapplicable

and it was too late in the day for the Respondent to object

to the admissibility of the document and it was thus a

misdirection for the Lower Court to have rejected it.

Counsel stated that assuming without conceding that the

case of Fawehinmi v.

NBA was applicable to the case, a proper examination of

the facts and principles of the case shows that they are not

in tandem with this case

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because there was no evidence adduced in this case that

the parties agreed that the letter would not be tendered in

evidence and the letter was not marked "without prejudice"

and secondly, the admission in the letter was plot made in

the course of a bona fide attempt to settle and neither was

it made for the purpose of reaching a compromise and that

the admission in the letter had already been made and

communicated to the Appellant before the letter was

written. Counsel stated further that the Appellant pleaded

fraud and that in proving fraud, all relevant documents

were admissible, even if illegally obtained and he referred

to the case of Musa Sadau v. The State (1968) All NLR

128 and continued that all relevant documents are

admissible and the goodness or badness goes to weight

only and he referred to the case of Garton v. Hunter

(1969) 2 QB 37. Counsel stated that the letter dated 2nd of

March,2009 was thus admissible and he urged this Court to

use its powers under Section 15 of the Court of Appeal

Act2004 to admit the document and al low the

counterclaim.

In response, Counsel to the Respondent stated the

Appellant admitted in the statement of

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defence that the document in question was a privileged

document as it emanated out of a process of conciliation

and that it is recognized that in some circumstances it is

not essential that the words "without prejudice" be used

and it may be implied that negotiation was conducted on

this understanding and he referred to the cases of

Ashibogwu v. A. G. Bendel State (1988) 1 NWLR (Pt 69)

138 and Fawehinmi v. NBA (No.2) (1989) 2 NWLR

(Pt.105) 558. Counsel stated that the document in issue

having been made in the course of conciliation or

settlement, it is impliedly without prejudice and cannot

constitute an admission of liability on the part of the

Respondent and he referred to the case of Akanbi

v. Alatede (Nig) Ltd (2000) 1 NWLR (Pt 639) 125.

Counsel stated that the reference made by Counsel to the

Appellant to the plea of fraud is a non-starter because the

Lower Court found that the Appellant failed to prove the

allegation of fraud and that this finding was not appealed

against and that as such it cannot be canvassed again and

he referred to the case of Jimoh v. Akande (2009) NWLR

(Pt.1135) 549. Counsel stated that the Appellant has not

given this Court any

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reason to tamper with the judgment of the Lower Court

dismissing the counterclaim of the Appellant and that this

Court should refuse the Appellant's request that the

judgment on the counterclaim be set aside.

The document that was tendered by the Appellant and

rejected in evidence by the Lower Court was a letter dated

2nd March, 2009 and written by the Respondent to the

Appellant and which, according to the Lower Court, was

captioned Resolution Proposal on Business Relationship. In

pleading the document, the Appellant averred in its

counterclaim that a dispute arose between the parties as to

the exact quantity of LPFO supplied and the quantity to be

compensated for was not ascertained and in the course of

reconciliation, the Respondent admitted a shortfall of

660,000 liters in a letter dated the 2nd of March, 2009.

These facts were reiterated by the sole defence witness in

his written testimony in his evidence in chief. In its

amended reply, the Respondent pleaded that it agreed to

absorb 660,000 liters out of the alleged shortfall in its

letter dated 2nd of March, 2009 in the spirit of

reconciliation at a meeting chaired by a third party and also

in

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return for the Appellant issuing it with a contract for the

further supply of thirty Million liters of LPFO, and not

because it acknowledged any actual shortfall. Thus, the

parties were agreed on the pleadings and the evidence that

the said letter was written in the course of mediation of a

dispute that arose between parties.

The position of the law on the admissibility of a statement

made or document written in the course of negotiation to

settle a dispute has since been resolved by our Courts. In

Ashibuogwu v. Attoney General Bendel State (1988) 1

SC 248, Nnaemeka-Agu, JSC put the law thus:

"A statement made in the course of a negotiation of the

compensation or the offer of such a compensation would, in

my view, be analogous to a statement made "without

prejudice" during a negotiation. The law has always taken

the view that parties should speak freely in attempting a

settlement of their disputes. That freedom of discussion will

be seriously prejudiced if any offer or admission made in

the process of the negotiation could be given in evidence

and be used to support a party's case in Court afterwards,

should the negotiation break down. Where such

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negotiations are made by written communication they are

usually marked "without prejudice" and are inadmissible

against the parties in that suit. But it is recognized that in

some circumstances it is not essential that the words

"without prejudice" should have been used: it may be

implied that negotiations were conducted on this

understanding. Hence in Mole v. Mole . . . , oral

communications to a conciliator by a party to a matrimonial

dispute was treated as having been made without

prejudice. See also Pool v. Pool ...; Henley v. Henley ...

Although these two cases deal with privilege attaching to

statements made during negotiations as between a

husband and his wife during a dispute, the principle is

rather broadly - based. The learned authors of Phipson On

Evidence (11th Ed) put it thus . . . 'Offers of compromise

made expressly or impliedly 'without prejudice" cannot be

given in evidence against a party as admissions; the law on

grounds of public policy, protects negotiation bona fide

entered into for the settlement of disputes.' The privilege

is, however that of the parties."

In other words, an offer or admission made in a written

document in the course

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of negotiation between parties to resolve a dispute is

inadmissible against the party that made it in a subsequent

litigation on the subject matter of the dispute, whether or

not that document was marked "without prejudice". This

statement of law was reiterated by the Supreme Court in

Fawehinmi v. Nigeria Bar Association (No. 2) (1989) 2

NWLR (Pt.105) 558 and by this Court in Akanbi v. Alatede

(Nig) Ltd (2000) 1 NWLR (Pt 639) 125, Kolo v. First

Bank of Nigeria Plc (2003) 3 NWLR (Pt.806) 216, Ibiyeye

v. Gold (2011) LPELR-CA/L/M/95/2010 and Acmel Nigeria

Ltd v. First Bank of Nigeria Plc (2014) 6 NWLR

(Pt.1402) 158. This principle was given a partial statutory

imprimatur in Section 196 of the Evidence Act which

reads "a statement in any document marked "without

prejudice" made in the course of negotiation for a

settlement of a dispute out of Court, shall not be given in

evidence in any civil proceeding in proof of the matters

stated in it.

Counsel to the Appellant submitted that the above principle

should not apply in the instant case because the

Respondent did not indicate at the pretrial conference that

he would be objecting to the admissibility of

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the letter at trial. It is the view of this Court that though it

is desirable that a party should indicate at the pretrial

conference of a matter if it is going to object to the

admissibility of any document that the other party has

listed as one to be relied on at trial, the failure to so

indicate cannot, should not, prevent the party from raising

an objection to admissibility at trial. This is because that

proper time for a party to object to the admissibility of a

document is at the time it is tendered in evidence -

Lawson-Jack v. Shell Petroleum Development Co (Nig)

Ltd (2002) 13 NWLR (Pt.783) 180, Fatubi v. Olanloye

(2004) 12 NWLR (Pt.887) 229. The party who was misled

by the failure of the other party to indicate its objection at

pretrial conference can be compensated in costs, but such

failure to indicate should not be a ground for admitting a

document that the Evidence Act states is inadmissible in

law. The Rules of Court cannot override a substantive

legislation. Also, the fact that the Appellant pleaded fraud

is irrelevant to the admissibility of the document, and this

more so as the letter had nothing to do with the fraud

pleaded by the Appellant;

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fraud was pleaded in the assertion in its defence to the

claim of the Respondent whilst the letter was pleaded as

part of its counterclaim.

The finding of the trial Court that the letter dated 2nd

March, 2009 and written by the Respondent to the

Appellant and which, according to the Lower Court, was

captioned Resolution Proposal on Business Relationship, is

inadmissible cannot be faulted in the circumstances of this

case. The first issue for determination is resolved against

the Appellant.

Issue Two

On the second issue for determination, the records of

appeal show that at the conclusion of the evidence in chief

of the sole witness of the Respondent, Counsel to the

Appellant declined cross examination and opened the

defence of the Appellant. The records show that at the

conclusion of the evidence and cross examination of the

sole witness of the Appellant, Counsel to the Appellant

applied for time for the parties to file their respective final

addresses and for a date for the adoption of the final

addresses. All these transpired on the 29th of April, 2013

and the Court gave the parties two weeks each to file their

final addresses and adjourned the

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matter to the 31st of May, 2013 for adoption of addresses.

The records show that rather than file a written address,

Counsel to the Appellant filed a motion on notice on the

30th of May, 2013 praying for leave to reopen the case of

the Appellant to lead further evidence and to recall the

witness of the Respondent for cross examination. The

records show that Counsel to the Respondent opposed the

application. The Lower Court took arguments on the motion

and dismissed it in a considered Ruling delivered on the

19th of June, 2013. The Lower Court stated in the Ruling

thus:

"... In determining this application we must not forget that

it is a case instituted under the Fast Track Procedure. By

the Fast Track Rules, cases under the Fast Track Procedure

are to be concluded, i.e. final judgment in the case to be

delivered, within 8 months from the date of filing and the

present case, a fast track case, is already over 6 months. By

Order 4 Rule 2(b) of the Fast Track Procedure,

applications are promptly made to avoid delay in the

conduct of cases in the fast track. At the close of the case

for both parties on 29/4/2013 the matter was adjourned for

adoption of

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written address to the 31/5/2013. On 31/5/2013, the

applicant brought a motion for leave to reopen its case and

recall PW1 for cross examination. It is pertinent to point

out at this stage that when the respondent's counsel was

asked to cross examine the claimant's witness, i.e. PW1,

she said she had no questions for him and was recorded

accordingly. The following questions to be asked are;

1. Whether the Respondent has been given the opportunity

to know the case it has to meet at the hearing and to

adequately prepare for its defence.

2. Whether the Respondent has been present all through

the proceedings to heal all the evidence against it.

3. Whether the Respondent has been given the right to

cross examine the witness who gave evidence against it.

4. Whether it has been granted access to and the

opportunity to read all the documents tendered in evidence.

If all the above questions are answered in the affirmative, it

follows therefore that a person who is to enjoy a benefit

and is fully aware of his right to the benefit but decides not

to utilize such right, shows that the party deliberately

refused to take advantage when it was

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availed it. The Respondent/Applicant had all the

opportunity available to them but failed to utilize same. The

Applicant's counsel contention that the counsel who

conducted the case acted contrary to his instructions will

not hold in the circumstances of this case, even if it were

not a case under the Fast Track Procedure. More so, when

the Respondent's counsel Mrs. Mary Joseph Adeyi has been

the counsel in the case throughout the trial. In

Willoughby's case ... relied on by both counsel, it was 8

days after the closure of the case that an application of this

nature was brought. In the present case it is 31 days after

the closure of the case, i.e. on the date the addresses of

counsel were to be adopted, when the application was

brought. This also goes to show lack of diligence in the

attitude of the Respondent. He who comes to equity must

come with clean hands and equity aids the diligent and not

the indolent. The Court has statutorily done all that is

required of it to do to give the Respondent /Applicant all

the opportunity for its defence. As such, the misuse of this

opportunity by Respondent/Applicant must be presumed

that the right is left to go. The

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Respondent/applicant cannot be heard to complain.

In a recent decision of the Supreme Court, Chukwura

v. FRN . . ., the Supreme Court held that the general

principle of law and practice in our adversarial system is

that after the close of a case, no further evidence ought to

ordinarily be given by any of the parties.

In line with the above decision of the Supreme Court, I

refuse the application and it is accordingly dismissed. "

In arguing the second issue for determination, Counsel to

the Appellant stated that the application fell with the power

of judicial discretion and that there were no hard and fast

rules on the exercise of judicial discretion but that where

due weight is not given to relevant considerations, an

appellate Court would interfere and he referred to the case

of UBN Plc v. Astra Builders (2010) 5 NWLR (Pt 1186) 1.

Counsel stated that the considerations taken into account

by the Lower Court in refusing the application were out of

tune with the current judicial attitude to litigation and that

the decision in Willoughby v. IMB Ltd (1987) 1 NWLR

(Pt.48) was based on the principles stated by the Supreme

Court in the 1967 case of

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Ogbodu v. Odogha (1967) NMLR 400 and that this

decision was rendered at a time that the attitude of the

Courts was profoundly more technical in litigation and that

the philosophy has since changed to that of doing

substantial justice to the litigants. Counsel stated that the

Lower Court was clearly far more concerned about the case

being fast track and applying the rigid principles developed

by the Court in the earlier era and that the case of

Willoughby v. IMB did not outlaw the recall of witnesses

in civil proceedings and the Lower Court ought to have

viewed the principles more liberally in these days of

substantial justice and he referred to the case of Saleh

v. Mongunu (2006) 15 NWLR (Pt 1001) 26. Counsel stated

that the learned trial Judge refused to exercise its

discretion on the authority of the case of Chukwurah

v. FRN (2011) 5 SCNJ 40, a case which arose in a criminal

case with a different standard of proof as opposed to a civil

proceeding and that on this score alone the failure to

exercise discretion by the Lower Court ought to be

reviewed by this Court. Counsel urged this Court to resolve

the issue for determination in favour of the Appellant.

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On his part, Counsel to the Respondent stated that the

grant or refusal of the application in question was entirely

at the discretion of the Lower Court and which discretion

was to be exercised judicially and judiciously and he

thereafter traversed through the history of the case from

inception up till when the application was filed and stated

that no Court of law or equity would have exercised its

discretion in favour of the application of the Appellant in

the circumstances. Counsel stated that the entire conduct

of the Appellant from inception was to seek to delay the

progress of the matter and frustrate the Respondent and

that the Counsel to the Appellant chose willingly to forgo

the right to cross examine the witness of the Respondent

and that the hands of the Appellant who went before the

Lower Court to seek an equitable relief were not clean.

Counsel stated that the case of Willoughby v. IMB was

applicable to the facts of this case and he also referred to

the case of Re: Chief Bolaji Bakare (1969) All NLR 74

and stated that the Lower Court rightly refused to exercise

its discretion in favour of the application of the Appellant in

line with the justice

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of the case and that this exercise of discretion must not be

disturbed by this Court for the simple reason that this

Court would have exercised the discretion differently and

he relied on the case of Nigerian Laboratory Corp

v. PMB Ltd (2012) 15 NWLR (Pt.1324) 505. Counsel urged

this Court to resolve the issue for determination in favour

of the Respondent.

It is not in contest that the grant or refusal of an

application by a party seeking to recall a witness and to

reopen a case to lead additional evidence is entirely at the

discretion of the trial Judge - Ogbodo v. Odogha (1967)

NMLR 400, Willoughby v. IMB Ltd (1987) 1 NWLR

(Pt.48) 105, Nebo v. Federal Capital Development

Authority (1998) 1 NWLR (Pt.574) Orisakwe & Sons Ltd

v. Afribank Plc (2012) LPELR-CA/J/11/2005, Iyawe

v. Mene (2014) LPELR-CA/B/374/2012.

It is trite that when a Court is called upon to exercise its

discretion in favour of an application, it must ensure that it

does not act arbitrarily but judicially and judiciously based

on sound principle of law and by giving weight to relevant

considerations - First Fuels Ltd v. NNPC (2007) 2 NWLR

(Pt 1018) 276.

Thus, for party to succeed in

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showing that a trial Judge exercised his discretion wrongly

he has the onus to justify the fact that the discretion was

not exercised judicially, i.e. that the discretion was

exercised in an arbitrary manner and without due regard to

all relevant considerations of necessary factors or on

reliance up on wrong principles - National Bank of

Nigeria Ltd v. Guthrie (Nig) Ltd (1993) 3 NWLR (Pt 284)

643 and Statoil (Nig) Ltd v. Star Deep Water

Petroleum Ltd (2015) 16 NWLR (Pt.1485) 361.

The exercise of the discretion to grant an application to

recall a witness in civil matters and to lead additional

evidence is not governed by any statutory provision and it

is largely a matter of practice and it is predicated on the

peculiar facts and given circumstances of the particular

case and coupled with its attendant exigencies. Over the

years, the Courts have developed guidelines to be applied

by trial Courts in the exercise of discretion to recall a

witness to give additional evidence. In Ogbodu v. Odogha

(1967) NMLR 400, the Supreme Court stated that

"undoubtedly the discretion to recall a witness by a Judge is

one which should be exercised with great care, regard

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being had to the interest of justice and the desirability of

remaining an impartial arbiter between the parties." Thus,

great care is the first constraint to the exercise of the

discretion. Secondly, in Willoughby v. International

Merchant Bank Ltd supra, Obaseki, JSC noted the

exercise of the discretion is limited to grant of leave to call

fresh evidence and the learned Justice proceeded to state

thus: "what is fresh evidence? I think this is evidence that

was not available previously which is designed to be a reply

to the evidence given by the other side, on points material

to the determination of the issue or any of them. It could

not, in my view, be evidence which ought to have been led

to establish the facts pleaded and meet the issues raised on

the pleadings. If it were otherwise, the purpose of

pleadings would be defeated."

Where the application is made to call evidence which was

available to a party when the witness testified and it is

simply to fortify or strengthen the case of the party, the

discretion will not be exercised in favour of the application

- Bassey v. Ekanem (2001) 1 NWLR (Pt.694) 376. Thirdly,

also in Willoughby v. International

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Merchant Bank Ltd supra, Oputa, JSC stated that for the

trial Court to exercise the discretion, the party applying to

recall the witness must supply sufficient materials relating

to why he wants the witness recalled and what he intends

to put to the witness and it is on these facts that the trial

Judge will decide whether or not the justice of the case

obliges him to exercise his discretion one way or the other.

Where this is not done, the trial Judge will be handicapped

in exercising its discretion in favour of the application -

Musa v. Dalwa (2010) LPELR-CA/J/242/2001.

Reading through the above excerpts of the Ruling

complained against, it is obvious that the Lower Court

refused the application of the Appellant on the grounds that

the Counsel to the Appellant did not give reasonable and

plausible reasons to sustain the prayers sought and that

there was an unexplained delay of thirty-one days in the

filing of the application. Counsel to the Appellant did not

contend these reasons of the Lower Court in his arguments

in this appeal. It is pertinent to point out that the

application of the Appellant in question was very similar to

the application that was

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in issue in the case of Willoughby v. International

Merchant Bank Ltd supra and which went to the

Supreme Court and the Supreme Court stated that the

grant of the application in that case by the trial Court in the

"interest of justice" was a wrongful and an injudicious use

of discretion. The Lower Court was right to have drawn

strength from the position of the Supreme Court in that

case in reaching its conclusions on the application of the

Appellant. Counsel to the Appellant argued in this appeal

that the principles enunciated by the Supreme Court in the

case of Willoughby v. International Merchant Bank

Ltd had become archaic and no longer relevant, but he

failed woefully to state the present relevant principles to

the application of the Appellant and/or refer to one

"modern day" case where the principles were canvassed,

different from those in Willoughby v. International

Merchant Bank Ltd.

The reasons given by the Lower Court for dismissing the

application of the Appellant came within the relevant

considerations and guidelines laid down in decided cases

for dealing with an application of that nature and they were

not extraneous. The additional evidence

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sought to be given by the Appellant was not fresh evidence

and all that the Appellant sought to do by the application

was to reopen his case and call additional evidence to

fortify and strengthen the case, after the close of trial by

mutual agreement. It is settled law that an appellate Court

will rarely interfere with the exercise of discretion by a

Lower Court and will only do so where the exercise is

based on extraneous issues or where the exercise of such

discretion was not bona fide - Integration (Nig) Ltd

v. Zumafon (Nig) Ltd (2014) 4 NWLR (Pt.1398) 479. The

Appellant has not shown that the exercise of discretion by

the Lower Court to refuse his application was an

injudicious, arbitrary or reckless exercise of discretion. The

Appellant has not given this Court any reason to interfere

with the exercise of discretion by the Lower Court. The

second issue for determination is resolved against the

Appellant.

Issue Three

This takes us to the third issue for determination - whether

based on the pleadings and evidence, the Lower Court was

correct in holding that the quantity of Low Pour Fuel Oil

(LPFO) supplied by the Respondent into the Appellant's

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Kano Storage facility or tanks and for which the Appellant

was liable to pay was 6,384,469 liters. In arguing this issue,

Counsel to the Appellant stated that the transaction

between the parties were governed by two documents, the

contract for the supply of Eleven Million liters of Low Pour

Fuel Oil (LPFO) dated the 24th of July, 2007, tendered as

Exhibit A, and the addendum thereto made on the 12th of

August, 2008, tendered as Exhibit K, and that the

addendum contained more detailed provisions in the form

of a formal contract. Counsel stated that under the

contract, Exhibits A and K, the quantity of LPFO supplied

was one thing and quantity of LPFO evacuated by the

Appellant from its storage tanks was a completely different

matter and that the amount to be taken as delivered to the

Appellant is the quantity evacuated and it is for that

quantity that the liability of the Appellant to pay arises.

Counsel stated that the finding of the Lower Court that 'by

Exhibits F and K the Appellant acknowledged the supply of

6,384,469 liters of LPFO at the Kano Storage tanks by the

Respondent' was not supported by evidence and that

Exhibit F, a letter addressed to the

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Respondent by the Store Manager of the Appellant, stated

in its last sentence that liability was dependent on the

evacuated product and thus, did not amount acceptance of

liability for 6,384,469 liters of LPFO.

Counsel stated that the reliance placed by the Lower Court

on Exhibit L, an email dated the 12th of May, 2008, which

emanated from the Store Manager of the Appellant and was

addressed to other staff of the Appellant and to which was

attached a report titled "Inspection Report of Kano LPFO

Storage tank", to find liability on the part of the Appellant

for 6,384,469 liters of LPFO was wrongful because the

document was inconclusive as it was not signed and there

was no evidence that the recommendations made therein

were accepted by the Appellant and he referred to the case

of Chrisdon Industrial Ltd v. AIB Ltd (2002) 8 NWLR

(Pt.768) 152. Counsel stated that the ambivalence of

Exhibit L, was resolved by Exhibit F, written by the same

store manager of the Appellant, wherein it was clearly

stated that the liability of the Appellant was dependent on

the quality of LPFO evacuated from the storage tank by the

Appellant and not on the quantity alleged

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supplied by the Respondent and that Exhibit K which was

subsequent to Exhibits L and F, made it clear that

evacuation was the key. Counsel stated that Exhibit F was

followed up by Exhibit N, a letter written in November,

2008 notifying the Respondent that on the completion of

the evacuation exercise a shortage of 1,053,995 liters was

recorded, but that the Lower Court commenting on Exhibit

N, stated that the shortages complained of were not in

respect of the issue in contention and that this amounted to

the Lower Court making a case for the parties and this was

not part of the duty of a Court and he referred to the case

of Baker Marine Nig Ltd v. Chevron (Nig) Ltd (2006)

13 NWLR (Pt.997) 276.

Counsel stated the preamble to Exhibit K which stated that

"The Supplier has supplied 6,384,469 liters of LPFO to

Purchaser's storage tanks in Kano" did not amount to

admission of liability and that Exhibit K was internally

inconsistent and that the measurement mentioned in the

preamble was still subject to quantity loaded into the trucks

of the Appellant in accordance with clause 4(b) of the

Exhibit and that until then, the product remained at the

risk of the

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Respondent, clause 3(a). Counsel stated that the real bone

of contention was not that of supply at Kano storage tanks

because the parties were agreed that supply into Kano

storage tanks was not the same as supply to the Appellant

and that supply to the Appellant was, under the contract,

when the product is received and this happens when the

quantity of LPFO was loaded at the Kano storage tanks into

the trucks of the Appellant and that this was the real bone

of contention as it was the quantity loaded into the trucks

that defined the liability of the Appellant and the amount it

is to pay. Counsel stated that upon a proper construction of

Exhibits L, F and K they will be found to be consistent that

payment was only for the exact quantity loaded into the

Appellant's trucks and that in case of dispute arising from

documentary evidence the whole documents are read

together to resolve the conflict and he referred to the case

of Ezenwa v. KSHSMB (2011) 9 NWLR (Pt.1251) 89.

Counsel stated that the duty of the Court is to interpret the

agreement between parties strictly and he referred to the

case of Odutola v. Papersack (Nig) Ltd (2006) 18 NWLR

(Pt.1012) 470 and

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concluded that the Lower Court was thus in error when it

found that the Respondent had supplied 6,384,469 liters of

LPFO to the Appellant. Counsel urged this Court to resolve

this issue for determination in favour of the Appellant.

In his response arguments, Counsel to the Respondent

traversed through the pleadings and the unchallenged

evidence of the sole witness called by the Respondent and

the evidence of the sole defence witness of the Appellant

and stated that it was very obvious that the Lower Court

predicated its findings and conclusions on the pleadings

and evidence led by the parties and that this Court will not

interfere with a finding a fact made by a trial Court on the

strength of the pleadings and evidence led at trial and he

referred to the case of Ojo v. Governor of Oyo State

(1989) 1 SC (Pt.1) 1. Counsel stated that the assertion of

Counsel to the Appellant that Exhibit L, the email that

emanated from the Store Manager of the Appellant, was

inconclusive and not signed thus making it of doubtful

evidential value was not correct because the authenticity of

the email and of its contents were confirmed by the defence

witness in his testimony.

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Counsel stated that in the course of trial, the sole witness

called by the Respondent gave evidence as to the quantity

of the LPFO supplied as 6,384,469 liters and he was not

cross examined by the Counsel to the Appellant and neither

was the witness confronted with the alleged issue of

shortages being canvassed by the Appellant and that it was

settled law that where an adversary testifies on a material

point in controversy in a matter and the other party fails to

cross examine him on that point, the other party will be

deemed to have accepted the truth of that testimony on the

point and he referred to the case of Amadi v. Nwosu

(1992) 5 NWLR (Pt.241) 273.

Counsel stated that the entire issue of shortages being

raised and canvassed by the Appellant was speculative as

there was clear evidence in Exhibits F, K and L that the

parties were agreed that the Respondent supplied

6,384,469 liters of LPFO and that this quantity of LPFO was

confirmed to have been accepted by the Appellant and he

thereafter referred to the specific contents of the Exhibits.

Counsel stated that the alleged shortages of 1,053,995

liters of LPFO was not proved by the Appellant as the

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defence witness admitted that his evidence on oath was

different from the contents of Exhibit N where the issue of

shortages was raised for the first time and that the said

Exhibit N had no bearing on the case before the Lower

Court as it referred to the supply of 6,375,708 liters of

LPFO and not in respect of the supply of 6,384,469 liters

which was the subject of dispute between the parties and

that thus the finding of the Lower Court that Exhibit N was

not related to the case at hand cannot be faulted. Counsel

stated that assuming that Exhibit N was relevant to the

case at hand, it still was not useful to establish the alleged

shortages because Exhibit K stipulated that Appellant shall

ensure complete evacuation of the product from its Kano

Storage tanks within three to four weeks of the agreement,

Exhibit K, and that the agreement was signed on the 12th

of August, 2008 while Exhibit N was issued on the 12th of

November, 2008.

Counsel stated further that the contents of Exhibit N

amounted to an attempt by the Appellant to alter and/ or

vary the contents of Exhibit K wherein the Appellant had

accepted that the confirmed quantity of LPFO supplied by

the

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Respondent was 6,384,469 liters and that clause 9 of

Exhibit K stated that no such alteration of the agreement

shall be effective unless made in writing and accepted by

the authorized signatories of both parties and the contents

of Exhibit N was not so accepted by the authorized

signatories of the parties. Counsel stated that it was in

evidence before the Lower Court that the Appellant

commenced making payments to the Respondent for the

LPFO supplied long before Exhibit N was issued and that a

further payment was made even after it was issued as

confirmed by Exhibits H, I and J and that the question was

why were payments for the LPFO before and even after the

evacuation of the product and the alleged discovery of

shortages and that the only plausible answer was that

Exhibit N was an afterthought. Counsel stated that if

indeed there was any shortages from the 6,384,469 liters of

LPFO agreed and confirmed by the parties to have been

supplied, the Appellant would have notified the Respondent

within four weeks of the making of Exhibit K and definitely

before making payments because according to Exhibit K

payment for the product supplied was to be made after

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notification of confirmed quantity supplied within one week

of evacuation. Counsel stated that these showed that the

quantity of product supplied and evacuated was 6,384,469

liters of LPFO and that the finding of the Lower Court on

the point was this correct. Counsel urged this Court to

resolve this issue for determination in favour of the

Respondent.

The facts of this case are pretty straight forward and they

are not really in contest, both on the pleadings and in the

evidence led. It was not in contest between the parties that

by a contract dated the 24th of July 2007 it was agreed that

the Respondent would supply Eleven Million liters of Low

Pour Fuel Oil (LPFO) to the Appellant and which Low Pour

Fuel Oil (LPFO) was to be offloaded into the Appellant's

storage tanks at its offices in Ashaka and Kano within six

weeks and that the unit price per liter for the supply to

Ashaka would be N65.00 while that for Kano would be

N59.50 and that payment was to be made within two weeks

of supply of the Low Pour Fuel Oil (LPFO) by the

Respondent and confirmation of its receipt by the

Appellant; the contract was Exhibit A at the trial. It was not

in contest that the

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Respondent wrote letters at different times requesting for

extension of the six weeks supply period and the Appellant

conceded the requests; the letters of the Appellant dated

the 26th of July, 2007, 24th of October, 2007 and dated 7th

of February, 2008 consenting to the Respondent's requests

for extension were Exhibits B, C and D.

It was not in contest that due to an increment in the price

of the product, the Respondent wrote a letter dated the

27th of February, 2008 requesting for a price review and it

proposed the price of N69.50 per liter for supplies to Kano

and N75.00 per liter for supplies to Ashaka and that by a

letter dated the 28th of February 2008, the Respondent

approved a price increase to the sum of N75.00 per liter;

the letter requesting for price review and that approving

the review were Exhibits M and E respectively at the trial.

It was not in contest that the Respondent supplied the

LPFO into the Appellant's Kano Storage facility and it sent

a delivery notification dated the 30th of April, 2008 to the

Appellant and requested the Appellant to send its officers

to confirm the delivery and that the Appellant did so and its

Stores Manager, by

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an email dated the 12th of May, 2008 and to which was

attached an Inspection Report and also by a letter dated

the 27th of May, 2008, confirmed that 6,384,469 liters of

Low Pour Fuel Oil (LPFO) was supplied into its Kano

Storage Tank and that it had accepted that quantity of

product as it was within the range of its quality parameters

from the dip result conducted; the delivery notification, the

email with attachment and letter of confirmation were

Exhibits O, L and F respectively.

It was not in contest that Appellant made some payments to

the Respondent and these were the sum of N139 Million on

the 14th of July, 2008, the sum of N120 Million on the 12th

of August, 2008, the sum of N70 Million on the 1st of

November, 2008 and the sum of N23,058,160.63 on the 6th

of April, 2009 making a total of N352,058,160; tellers and

statement of account of the Respondent in proof of the

payments were Exhibits G, H, I and J. It was not in contest

that on the 12th of August, 2008 the parties executed a

LPFO Supply Agreement which was stated to be an

addendum of the contract entered between the parties on

the 24th of July, 2008; the Agreement was Exhibit K

It was the

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case of the Respondent before the Lower Court that the

Appellant was liable to pay it for the 6,384,469 liters of Low

Pour Fuel Oil (LPFO) supplied into the storage tanks of the

Appellant in Kano and the receipt of which was confirmed

and accepted by the officers of the Appellant. The case of

the Appellant was that by the terms of LPFO Supply

Agreement dated 12th of August, 2008, Exhibit K the

amount LPFO to be taken as delivered to the Appellant is

the quantity evacuated from the storage tanks at the time

of loading it unto the trucks of the Appellant, and not the

quantity supplied, and that it is for the quantity evacuated

that the liability of the Appellant to pay arises. It was the

case of the Appellant that in the course of the evacuation

exercise, it was 5,321,113 liters of LPFO that was

evacuated and that they addressed a letter dated 12th of

November 2008 notifying the Respondent of this fact and of

a shortfall of 1,053,995 liters; the letter was Exhibit N at

the trial.

Thus, one of the issues before the Lower Court was

whether the Appellant was liable to pay for 6,384,469 liters

of LPFO claimed by the Respondent or for 5,321,113liters

asserted by

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the Appellant. In resolving this issue, the Lower Court

stated in the judgment thus:

"...exhibit O dated 30/4/2008 is a letter of delivery

notification on LPFO supply into the Respondent's Kano

storage facility by the claimant which the Respondent by its

letter dated 27/5/2008 acknowledged the receipt and

confirmed to have been accepted by the company. The

letter is Exhibit F which reads:

'We will like to inform you about the result of the test of the

sample of oil supplied to our Kano storage tank. The oil was

confirmed to be within the range of our quality parameters

and the quantity from the dip result and the calibration

certificate provided 6,384,469 liters and it is what is being

confirmed to have been accepted by the company. The

difference can only be paid when we evacuate and

confirmed to be there.'

Exhibit K dated 12/8/2008 which is an addendum to Exhibit

A, the contract agreement between the parties dated

24/7/2007, also indicated therein that the supplier has

supplied 5,384,459 liters of LPFO to the purchaser's

storage tanks in Kano. Although DW1 under cross

examination denied that Exhibit K is a confirmation of

Exhibit F but this

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denial cannot be correct as both documents speak for

themselves and Exhibit K is signed by both parties. ...

Where the correspondence exchanged between the parties

are read together, it can be assumed that the parties have

come to an agreement. DWI under cross examination

admitted the figure of 6,384,469 liters as the quantity

supplied to Kano storage facility based on dipping as

reflected in Exhibit F. He also admitted that Exhibit K was

signed by both parties and in Exhibit K it is also reflected

therein that the supplier (claimant) has supplied 6,384,469

liters LPFO to the purchaser (Respondent) storage tanks in

Kano. Although the doctrine of estoppel by conduct is a

common law principle, it has been enacted into our body of

laws as Section 151 of the Evidence Act and provides

'when one person has by his declaration act or omission

intentionally causes or permitted another person to believe

a thing to be true and to act upon such belief neither he nor

his representative in interest shall be allowed in any

proceedings between himself and such person or such

person's representative interest to deny the truth of that

thing.'

By Exhibit F and K the

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Respondents have acknowledged the supply of 6,384,469

liters of LPFO at their Kano storage tanks by the claimant.

Exhibit F is specific that the quantity supplied from the dip

result is 5,384,469 liters. Exhibit F emanated from the

Respondent and Exhibit K is signed by both parties, the

parties are therefore bound by the agreement in Exhibit K

and the Respondent by its conduct cannot disclaim its act.

... The denial of the Respondent as to the quantity supplied

by the claimant to their Kano storage tanks will not hold.

This is because oral evidence cannot change the content of

a document. ...

... The Respondent also contended that by Exhibit N the

claimant was notified on the shortage of LPFO supplied of

Kano storage. Exhibit N emanated from the Respondent

and it is dated 12/11/2008 addressed to the claimant.

Paragraph 2 of Exhibit N reads 'Meanwhile we evacuated

5,321,113 liters as against the 6,375,108 liters that was

supposed to be in the tank, which indicates a shortage of

1,053,995 liters.' It must be pointed out that the shortage

complained of by the Respondent in Exhibit N dated

12/11/2009 is in respect of supply of 6,375,108 liters to

Kano storage

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tank and not in respect of supply of 6,384,459 literswhich is in contention...." (See pages 554 to 557 of therecords)

The relationship between the parties in this suit wasgoverned by contracts reduced into writing. It is settledlaw that parties are bound by the contract theyvoluntarily enter into and cannot act outside the termsand conditions contained in the contract and neither ofthe parties to a contract can alter or read into a writtenagreement a term which is not embodied in it - AfricanInternational Bank Ltd v. Integrated DimensionalSystem Ltd (2012) 17 NWLR (Pt.1328) 1, Lagos StateGovernment v. Toluwase (2013) 1 NWLR (Pt.1336)555. A Court too must treat as sacrosanct the terms ofan agreement freely entered into by the parties asparties to a contract enjoy their freedom to contract ontheir own terms so long as same is lawful and if anyquestion should arise with regard to the contract, theterms in any document which constitute the contract arethe invariable guide to its interpretation. It is not thebusiness of the Court to rewrite a contract for theparties and it should thus not add to or subtract from orimport any provision into

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the contract - Omega Bank (Nig) Plc v. O.B.C. Ltd(2005) 8 NWLR (Pt.928) 547, BFI Group Corporationv. Bureau of Public Enterprises (2012) 18 NWLR(Pt.1332) 209, Daspan v. Mangu Local GovernmentCouncil (2013) 2 NWLR (Pt.1338) 203, Afrilec Ltdv. Lee (2013) 6 NWLR (Pt.1349) 1.

The original contract between the parties wasconstituted in the document dated the 24th of July 2007,Exhibit A. The Respondent was described as theSupplier and the Appellant as Purchaser in the contractand Clause 5 of Exhibit A stipulated the mode fordetermining quantity of LPFO for which the Appellantwas liable to pay for and it reads thus:"Quantity determination: As per Purchaser's dipmeasurement/weighbridge at Purchaser's storage tanksas per chart certificates of individual tanker trucks. Allcompartments of any tanker shall be sealed properly bySupplier."

Clause 7 of Exhibit A dealt with payment and it statedthat payment was to be done two weeks after deliveryand confirmation by Ashaka Personnel. The Respondentdid supply LPFO into the storage tanks of the Appellantin Kano and it wrote letter dated 30th of April, 2008,Exhibit O, to the Appellant to

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send its personnel to go and determine and confirm the

quantity supplied. The Appellant did send its personnel to

determine and confirm the quantity and the Store Manager

of the Appellant wrote two documents on the outcome of

the exercise. The first was a report captioned "Inspection

Report On Kano LPFO Storage Tank" which was attached

to an email dated 12th of May, 2008 and both of which

were tendered as Exhibit L and the second was a letter

dated the 27th of May, 2008, Exhibit F. The report in

Exhibit L read, in part, thus:

"Following the notification of Asharul Mubashirun

Investment Limited via their letter dated 30th April, 2008

with a subject DELIVERY NOTIFICATION ON LPFO

SUPPLY and the subsequent management approval and

Constitution of a committee of three made up of safety,

laboratory and stores manager. We had carried out a joint

inspection at the tank site Sharada Kano.

We have three tanks where fuels were stored. The tanks

were labeled 3, 5 and 7. There are additional three tanks

within the compound. The tanks were calibrated last by

MEMAK Calibrations Services Ltd ... The tanks maximum

capacities by the calibration are:

TANK 3 Height

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11.1m 1,588,410litres

TANK 6 Height 13.6m 2,502,400litres

TANK 7 Height 13.5m 2,516,000litres

The dipping of the tanks was carried out with the aim of

determining the content of LPFO stored in each tank. The

following were the result of the dips:

TANK 3 Height 11.02m 1,572,669litres

TANK 6 Height 13.00m 2,392,000litres

TANK 7 Height 13.08m 2,419,800litres

The total volume of oil found in the tanks based on the dips

as read from the calibration certificate is 6,384,459 litres.

The supplier was said to have delivered 6,500,000 litres.

There may be a dipping error, but I strongly recommend

when it comes to payment we should pay only what was

confirmed through the dip, the balance of the quantity

should be paid when we transfer to site. ..."

The letter Exhibit F read thus:

"RE: DELIVERY OF 6.5M LITRES OF LPFO AT KANO

We will like to inform you about the result of the test of the

sample of oil supplied to our Kano storage tank. The oil was

confirmed to be within the range of our quality parameters

and the quantity from the dip result and the calibration

certificate provided 6,384,469liters and it is what is being

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confirmed to have been accepted by the company. The

difference can only be paid when we evacuate and

confirmed to be there."

Counsel to the Appellant submitted that the Lower Court

ought not to have relied on Exhibit L because the email was

unsigned. This argument, with respect, cannot hold water

in the circumstances of this case because the Purchasing

Manager of the Appellant at the time, Dahiru Alhassan, one

of the addressees on the email and who testified as the

witness of the Appellant, confirmed, under cross

examination, the origin and authenticity of the email and of

the attachment to it. He stated:

"... Exhibit L is dated 12/5/2008. Exhibit L was copied to me

and in the figures in the attachment of Exhibit L 6,384,469

liters according to dipping. I agree that Exhibit L is

confirming Exhibit F. ..." (See page 70 of the records)

Counsel to the Appellant again submitted that Exhibit F did

not constitute an admission because it stated that the

liability of the Appellant was dependent on the quantity of

LPFO evacuated from the storage tank. Counsel predicated

his submission on the last sentence in Exhibit F that "The

difference can only be

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paid when we evacuate and confirmed to be there." Now, it

is settled that in interpreting a document, the document

must be read as a whole, and not parts in isolation, and that

the different parts of the document must be interpreted in

the light of the whole document and an effort must be made

to achieve harmony amongst its different parts - Unilife

Development Co Ltd v. Adeshigbin (2001) 2 SCNJ 116,

Mbani v. Bosi (2006) 11 NWLR (Pt.991) 400, Adetoun

Oladefi Nig. Ltd v. Nigerian Breweries Plc (2007) 1

SCNJ 375, Agbareh v. Mimra (2008) 2 NWLR (Pt.1071)

378, Nigerian Army Vs Aminu-Kano (2010) 5 NWLR

(Pt.1188) 429. This principle also applies where the

document is part of a series of documents on the same

transaction. A holistic reading of Exhibit F, and along with

the contents of Exhibit L, shows, with respect, that Counsel

was only trying to be clever by half. It is obvious from the

two documents that the Respondent apparently claimed

that it supplied 6.5 Million liters of LPFO and what Exhibits

L and F explain is that the staff of the Appellant only

confirmed receipt and acceptance of 6,384,469 liters by the

agreed dipping method and it was the difference

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between the two figures the documents said can only be

paid for when the LPFO is evacuated and it is shown to be

6.5 Million liters.

The two documents, Exhibit L and F, were an unequivocal

admission by the Appellant that the quantity of the LPFO

determined and confirmed in accordance with the method

agreed by the parties in Exhibit A and for which it was

liable to pay the Respondent was 6,384,469 liters. This was

as at the 27th of May, 2008, the date of Exhibit F, and by

clause 7 of Exhibit A payment for the said 6,384,469 liters

of LPFO was due from the Appellant to the Respondent on

or before the 12th of June, 2008.

Exhibit K the LPFO Supply Agreement which the Appellant

predicated its case on, was made on the 12th of August

2008, about two months after the right of the Respondent

to the payment for the 6,384,469 liters of LPFO had

crystallized. The document was described as an addendum

to Exhibit A and it has two parts – the recital and the

operative part. A recital is defined as a preliminary

statement in a contract or deed explaining the reasons for

entering into it, or the background of the transaction, or

showing the existence of

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particular facts - Suu v. Jobak Nigeria Ltd (2012)LPELR-CA/IL/76/2010. It is usually preceded by the word"whereas". It is settled that where a recital contains astatement of the existence of a fact, it constitutes anestoppel and the party or parties who made thestatement in the recital are not allowed to denysubsequently the existence of that fact - Oyefesov. University College Hospital Board ofManagement (1930) NCLR 94 at 103, Ejiginiv. Ezenwa (2003) 16 NWLR (Pt.846) 420. One of thestatements contained in the recital of Exhibit K is "TheSupplier has supplied 6,384,469 liters of LPFO toPurchaser's storage tanks at Kano." The Respondent wasthe person described as the Supplier in the documentand the Appellant was the person described as thePurchaser. Thus, this statement constitutes an admissionon the part of the Appellant that the quantity of LPFOsupplied and for which it was liable was 6,384,469 litersand it cannot be allowed to subsequently deny same.

Counsel to the Appellant predicated his case on theterms contained in the operative part of Exhibit K. Aread through these operative terms show that theyamounted to variation of the

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terms of the original contract, Exhibit A, as they sought to

alter some the existing terms of Exhibit A and to add some

additional terms. Variation of contract involves a definite

alteration of contractual obligations by the mutual

agreement of both parties. Variation is analogous to the

entry by the parties into a new contract. The requirements

of offer, acceptance and consideration are thus imposed. In

Goss v. Lord Nugent 110 ER 713 at 716, the Court stated:

"By the general rules of the common law…it is competent

to the parties at any time before breach of it, by a new

contract not in writing, either altogether to waive, dissolve,

or annul the former agreements, or in any manner add to,

subtract from or vary or qualify the terms of it and thus

make a contract..."

For a variation to be effective, there must be a valid and

subsisting contract on foot between the parties; there must

be some form of consensus between the parties as to the

obligations which are to be altered; and it must be

supported by consideration - Oriloye v. Lagos State

Government (2014) LPELR-CA/L/839 /2007, Unity Bank

Plc v. Olatunji (2014) LPELR-CA/K/300/2012. A mutual

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abandonment of the existing rights of the parties under the

agreement between them is sufficient consideration to

support a variation of the agreement - Ekwunife v. Wayne

(WA) Ltd (1989) 5 NWLR (Pt.122) 422 and Prospect

Textile Mills Ltd v. Imperial Chemical Industries Plc

England (1996) 6 NNLR (Pt.457) 668. Also, consideration

will be said to have been provided where a party would

derive a superadded benefit from the contract by reason of

the variation - Williams v. Roffrey Bros & Nicholas

(Contractors) Ltd (1991) 1 QB 1. However, where the

agreement is made exclusively for the benefit of only one

party, or where, although it is capable of benefiting both

parties, the agreement is actually made for the benefit of

one alone, it will not be effective to vary the original

contract since no consideration was present - Vanbergen

v. St Edmund's Properties Ltd (1933) 213 223. Also,

where one party has fully performed his side of the contract

and the other party's performance has fallen due, no

variation can be effective unless it imposes new obligation

on the latter. An undertaking to perform an existing

obligation does not amount to consideration to make the

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variation of a contract effective.

As stated earlier, the Respondent had performed its side of

the contract by supplying 6,384,469 liters of LPFO into the

Kano Storage tanks of the Appellant and the obligation of

the Appellant to pay therefor crystallized on or about the

12th of June, 2008, two months before the making of

Exhibit K. Reading through the contents of the operative

part of Exhibit K, it is obvious that it was made for the

benefit of the Appellant. It did not impose any new

obligation on the Appellant. It did not even insist on the

performance of the existing obligation of the Appellant to

pay for the 6,384,469 liters of LPFO supplied by the

Respondent. It rather diluted the performance of the

obligation by changing the way and basis upon which the

Appellant was to make the payments, which were already

overdue. It thereby watered down the benefits of the

Respondent under the existing contract. The terms in the

operative part of Exhibit K could thus not have been

effective to vary the terms of the original contract, since

there was no consideration present therein. The huffing

and puffing done by the Counsel to the Appellant on the

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strength of these operative parts of Exhibit K thus went to

no issue. The contents of Exhibit N upon which the

Appellant based the bulk of his case, being a document

issued on the basis of the operative terms of Exhibit K,

cannot serve any useful purpose in this matter.

It is clear from the terms of agreement in Exhibit A and

from the contents of Exhibit L, F and the recital part of

Exhibit K that it was the 6,384,469 liters of LPFO supplied

by the Respondent into the storage tanks of the Appellant

that was confirmed and accepted by the Appellant as the

quantity delivered to it and for which it was liable to pay.

The pleadings and the evidence before Lower Court

supported the finding of the Lower Court on the issue. This

issue for determination is resolved also against the

Appellant.

Issue Four

The fourth issue for determination is whether, based on the

oral and documentary evidence led by the parties, the

Lower Court was correct in holding that the initial agreed

price per liter, N59.50, was subsequently reviewed by the

parties, and, if so, that the review was to the price of

N69.50 and not N75.00. This issue, apart from arising from

some

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of the complaints of the Appellant in this appeal, is also the

issue arising on the cross-appeal. Thus, a resolution of the

issue should resolve the cross-appeal as well.

It must be pointed out that Counsel to the parties agreed in

their briefs of arguments "that the finding that there was a

price review to N69.50 for the Kano Storage is perverse as

it was contrary to the pleadings and evidence of the

parties." The case of the Appellant was that there was no

price review from the N59.50k per liter agreed in the

original contract for supply to the Kano Storage facility

while the case of the Respondent was that there was a

price review to N75.00 per liter for the supply to Kano

Storage facility. In arguing his case on this issue in this

appeal, Counsel to the Appellant referred to the pleadings

and evidence of the parties and stated that the transaction

between the parties was governed by Exhibits A and K and

that by Clause 9 of Exhibit K no alteration or variation of

the terms shall be effective unless made in writing by both

parties and accepted by the authorized signatories of both

parties and that there was nothing presented before the

Lower Court

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showing the acceptance of the alleged price review by the

authorized signatories of the parties and that a Court

cannot bring into a contract extraneous terms not agreed

upon by the parties; he referred to the case of Kaydee

Ventures Ltd v. Minister FCT (2010) 7 NWLR (Pt.1192)

171.

Continuing on the issue in the cross respondent's brief of

argument, Counsel conceded that the Respondent pleaded

that it made a request for a price review and which request

was approved by the Appellant to a price of N75.00 and

that the Respondent led evidence thereon and tendered the

letters of request and approval as Exhibits M and E

respectively, but stated that the request of the Respondent

was for a review of the price for supply Kano Storage to

N69.50 per liter and for Ashaka Storage to N75.00 per liter

while the approval given was for a just price review of

N75.00 per liter without stating for which Storage facility

the increased figure was for. Counsel queried that why will

the Appellant approve N75.00 for supply to the Kano

Storage facility as against the N69.50 asked for and stated

that an examination of the contract documents shows that

the distinction had always

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been made between deliveries to Ashaka and deliveries to

Kano and for which there were price differentials and that

the silence of Exhibit E on what storage the approved price

review of N75.00 was for rendered the document vague

and it becomes an issue of interpretation to determine the

intention of the parties.

Counsel stated that in interpreting are document, it must

be considered along with the other documents on the

contract and on the issue, Exhibit A, K and particularly

Exhibit M and that in Exhibit K which was made

subsequent to Exhibit E the price mentioned for deliveries

to Kano was N65.50 and he again queried why will the

Appellant approve N75 per liter in February 2008 and

approve N65.50 in August of 2008. Counsel stated that the

onus was on the Respondent to prove the price it was

claiming the LPFO was supplied for per liter, and not on

the Appellant to disprove and that the weakness of the case

of the Appellant did not help the Respondent, and that the

Respondent failed to lead credible evidence to prove its

case and that the issue for determination must thus be

resolved in favour of the Appellant/cross respondent and he

referred to the cases

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of Obajimi v. Adedeji (2008) 3 NWLR (Pt.1073) 1 and

Ahmed v. CBN (2013) 2 NWLR (Pt.1339) 524.

In response, Counsel to the Respondent referred to the

pleadings of the parties and stated that while the case of

the Respondent was that the price for the supply of the

LPFO to Ashaka Storage facility and the Kano Storage

facility, both of the Appellants, was reviewed to N75.00 per

liter flat and that it was the case of the Appellant that the

price review did not include supply to the Kano Storage

facility and that the supply to that facility was at the

original contract price of N59.50 per liter. Counsel stated

that in proving its case before the Lower Court, the

Respondent tendered the letter of approval of the

increment, Exhibit E, and the Appellant tendered the letter

by which the request for increment was made, Exhibit M,

and that the content of Exhibit E was clear and

unambiguous and it stated a price increase for the supply

of LPFO to N75.00 per liter without differentiating whether

the supply was to Ashaka or to Kano and that the testimony

of the defence witness that the price review was not for

supplies to Kano cannot be allowed to alter the clear

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contents of Exhibit E and he referred to the cases of Baliol

(Nig) Ltd v.Navcon (Nig) Ltd (2010) 16 NWLR (Pt.1220)

619 and UBN v. Ozigi (1994) 3 NWLR (Pt.333) 385.

Counsel urged this Court to resolve this issue for

determination in favour of the Respondent/cross appellant

and to grant the cross-appeal on that basis.

In dealing with the issue of price and price review, the

Lower Court stated in the judgment thus:

"The DW1 in his testimony deposed that the LPFO supplied

by the claimant to the Respondent's storage tanks in Kano

does not amount to N478,835,175 because there was no

variation of pricing in respect of delivery to Kano storage

tanks. Exhibit M which is the letter from the claimant to the

Respondent requesting for price review clearly stated the

reviewed amount as N69.50 per liter for delivery to Kano

storage and N75 per liter for delivery to Ashaka Storage. In

its reply Exhibit E the Respondent approved the price

review of N75 per liter but was silent on the price review

for Kano storage at N69.50k per liter. However, the

Respondent by its conduct in Exhibits F, K and L accepted

the delivery of 6,384,459 liters based on the dips as

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read from the calibration certificate Exhibit M the request

for price review of N69.50 per liter for delivery to Kano

storage and N75 per liter for delivery to Ashaka storage is

dated 27/2/2008 while Exhibit L the email is dated

12/5/2008, Exhibit F is dated 27/5/2008 and Exhibit K is

dated 12/8/2008. By Exhibit F, K and L the Respondent is

presumed to have accepted the price review of Kano

Storage at N59.50 per liter. ..." (see pages 557 to 558 of

the records)

Reading through the pleadings of the parties before the

Lower Court, neither of them pleaded or made a case for

the sum of N69.50 per liter as the price review for delivery

of LPFO to the Kano Storage facility of the Appellant by the

Respondent. The case of the Respondent was that the price

for the supply of the LPFO to Ashaka Storage facility and

the Kano Storage facility, both of the Appellant, was

reviewed to N75.00 per liter flat and it was the case of the

Appellant that the price review did not include supply to

the Kano Storage facility and that the supply to that facility

was at the original contract price of N59.50 per liter.

Neither of the witnesses that testified before the Lower

Court

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gave evidence of a price review to N69.50 per liter. It is

correct that in Exhibit M, the Respondent proposed a price

review of N69.50 per liter for the supply to Kano but there

was no evidence from either party that this was the sum

accepted by the Appellant. Exhibit F and L said nothing

about the price at which the supply of LPFO to the Kano

storage tank of the Appellant was made by the Respondent

while Exhibit K mentioned a price of N65.50 per liter, so

none of these Exhibits supported the price of N69.50 per

liter. The above finding of the Lower Court on a price

review to N69.50 per liter had no foundation either in the

pleadings or in the evidence led by the parties. It is thus

perverse and must be set aside - Nobis-Elendu

v. Independent National Electoral Commission (2015)

16 NWLR (Pt.1485) 197.

As stated at the outset of the deliberations in this appeal, it

was not in contest between the parties that, sequel to the

making of Exhibit A, which gave the Respondent six weeks

to supply the agreed LPFO, the Respondent wrote letters at

different times requesting for extension of the six weeks

supply period and the Appellant conceded the requests and

the

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letters of the Appellant dated the 26th of July, 2007, 24th of

October 2007 and dated 7th of February, 2008 consenting

to the Respondent's requests for extension were Exhibits B,

C and D. It was also not in contest that due to an increment

in the price of the product, the Respondent wrote a letter

dated the 27th of February, 2008 requesting for a price

review and it proposed the price of N69.50 pet liter for

supplies to Kano and N75.00 per liter for supplies to

Ashaka and that by a letter dated the 28th of February

2008, the Respondent approved a price increase to the sum

of N75.00 per liter; the letter requesting for price review

and that approving the review were Exhibits M and E

respectively at the trial. The contest in the matter was the

interpretation to be placed on the contents of Exhibit M

and E.

Exhibit M read thus:

"REQUEST FOR PRICE REVIEW

RE: LPFO SUPPLY (10,000 MT)

In regards to the above subject matter, we wish to request

for price review for the supply of LPFO, amounting to

N69.50 per liter for delivery to Kano Storage and N75 per

liter for delivery to Ashaka storage, all inclusive of 5%

withholding tax.

This

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request was due to market dynamics, such as price hikeof the product, increase in the cost of transportation as aresult of artificial scarcity and high cost of diesel. We anticipate your favourable response in good time forthe successful consummation of the transaction...."Exhibit E, the response, read thus:"RE: REQUEST FOR PRICE REVIEW FOR 10,000MT ofLPFOFurther to your request dated 27th of February, 2008 onthe above subject, management has approved therequest to increase price of LPFO to N75 per liter.Kindly expedite action to start delivering."

Now, it is an elementary principle of interpretation ofdocuments that where the language used by parties incouching the terms or provisions of a document areclear and unambiguous, the Court must give theoperative words in the document their simple, ordinaryand actual grammatical meaning - Union Bank ofNigeria Plc v. Ozigi (1994) 3 NWLR (Pt 333) 385,Isulight (Nig) Ltd v. Jackson (2005) 11 NWLR (Pt 937)631, Egwunewu v. Egeagwu (2007) 6 NWLR (Pt 1031)431. Applying this principle to the above reproducedcontents of Exhibits M and E, what the words thereinconvey is that

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while the Respondent requested for a differential review of

the prices for supplies to Kano Storage and Ashaka Storage

of the Appellant, the Management of the Appellant

approved a one price review of N75 per liter for all the

supplies of the LPFO.

The Appellant did not deny authoring the Exhibit E and the

onus was on it to prove that the wordings of the document

were meant to convey another meaning other than their

actual grammatical meaning. The document was signed by

one Bello Mohammed, the Purchasing Manager of the

Appellant at the time, and he was not called by the

Appellant to give evidence on what meaning, apart from

their actual grammatical meaning, the words he wrote

were meant to convey and no explanation was given by the

Appellant for his absence. It is clear that the letter

conveyed the approval of the Management of the Appellant

and no one in the Management of the Appellant at that time

was called to testify on whether what the letter conveyed

was not what was actually approved by the Management.

The sole witness of the Appellant was Danladi Alhassan, its

current Purchasing Manager, and he made no reference to

Exhibit E and said nothing about

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its import. All he said in his written deposition on price

variation was that the cost of the total supply made by the

Respondent to the tanks of the Appellant in Kano did not

amount to the figure claimed by the Respondent "because

there was no variation of pricing in respect of delivery to

Kano storage tanks." The Appellant thus led no cogent

evidence to show that the contents of Exhibit E meant

otherwise than their actual grammatical meaning. Exhibit K

referred to by the Counsel to the Appellant came into effect

on the 12th of August 2008, almost six months after Exhibit

E and it cannot thus be useful in deducing what the words

in Exhibit E conveyed at the time it was written.

What Counsel to the Appellant did in his briefs of

arguments was to pose queries such as, why will the

Appellant approve N75.00 for supply to the Kano Storage

facility as against the N69.50 asked for? And why will the

Appellant approve N75 per liter in February 2008 and

approve N65.50 in August of 2008? It is not the duty of this

Court to answer such queries as to do so will be taking this

Court into the realm of speculations, of speculations, an act

that is a taboo for this Court

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to do. It is evident that from the pleadings of the parties

and from the evidence led, that there was an agreement

between the parties to review the price of supply of the

LPFO contained in the original contract, Exhibit A" and the

review was from the price of N59.50 per liter for supply to

the Kano Storage facility and N65.00 per liter for the

supply to Ashaka Storage facility to a flat rate of N75.00

per liter for all supplies. This issue for determination is also

resolved against the Appellant who is the cross respondent

in the cross-appeal.

With these findings by this Court, it means that the

Respondent was entitled to be paid by the Appellant for the

supply of 6,384,469 liters of LPFO made to its Kano

Storage tanks at the price of N75 per liter. The defence

witness stated under cross-examination that he was a

Chartered Accountant by training and profession and that if

one multiplied 6,384,469 liters by N75.00 it would give

N478,835,175.00 and that if the sum of N352,058,160.60k

already paid to the Respondent was subtracted from this

figure, it would leave a balance of N126,777,01.5.00. This

is the amount that is outstanding in favour of the

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Respondent. The Lower Court was thus in error when it

awarded the sum of N91,662,435.44k as the outstanding

balance due to the Respondent and this award is liable to

be se t as ide and rep laced w i th the award o f

N1,26,777,015.00.

In conclusion, the appeal of the Appellant fails and it is

hereby dismissed while the cross appeal of the Respondent

succeeds and it is hereby allowed. The judgment of the

High Court of Kano State in Suit No K/517 /2012 delivered

by Honorable Justice Tani Yusuf Hassan on the 26th of

September,2013 is hereby affirmed in part. The portions of

the judgment asserting the price at which the Respondent

supplied LPFO to the Appellant as N69.50 per liter and

awarding the sum of N91,662,435.44k to the Respondent

as the outstanding balance due from the Appellant are

hereby set aside and in their place are inserted the price of

N75 per liter and an award in the sum of N126,777,015.00

as the outstanding balance due. For the avoidance of doubt,

judgment in this appeal is hereby entered as follows:

i. It is hereby declared that the Respondent successfully

supplied the Appellant with 6,384,469 liters of Low Pour

Fuel Oil (LPFO) into its

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(Appellant's) Kano Storage facility or tanks at the price of

N75 per liter.

ii. It is hereby declared that the Appellant paid the

Respondent the sum of N352,058,160.60 out of a total, sum

of N478,835,175.00 leaving a balance of N126,777,014.37

unpaid to the Respondent.

iii. It is hereby declared that the Respondent is entitled to

payment of the outstanding N126,777,014.37 from the

Appellant being the outstanding balance due on the LPFO

supplied to the Appellant.

iv. The Appellant is hereby directed to pay to the

Respondent the sum of N126,777,014.37 being the

outstanding balance due for 6,384,469 liters of Low Pour

Fuel oil (LPFO) the Respondent supplied to the Appellant

into its Kano storage facility or tanks.

v. The Respondent is awarded 10% per annum as interest

on the judgment sum from the date of judgment was

entered in the Lower Court, 26th of September 2013, until

the entire judgment sum is paid or liquidated.

vi. The Respondent is awarded cost of the action in the

Lower Court in the sum of N60,882.00 being the cost of

filing the suit.

The Respondent is awarded the costs of this appeal and of

the cross appeal assessed at

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N100,000.00. These shall be the orders of this Court.

UWANI MUSA ABBA AJI, J.C.A.: I have read in draft the

lead judgment of my learned brother, Habeeb O. A. Abiru,

JCA, just delivered.

I agree with the reasoning and conclusions of my learned

brother that the appeal fails and it is hereby dismissed. The

Cross Appeal of the Respondent succeeds and it is hereby

allowed. The judgment of the Lower Court of Kano State in

Suit No. K/517/2012 delivered on the 26th of September,

2013 is hereby affirmed in part. The portions of the

judgment asserting the price at which the Respondent

supplied LPFO to the Appellant as N69.50 per liter and

awarding the sum of N91,662,435.44k to the Respondent

as the outstanding balance due from the Appellant are

hereby set aside and in their place is inserted the price of

N75 per liter and an award in the sum of N126,777,015.00

as the outstanding balance due.

I also abide by the consequential order as to costs.

AMINA AUDI WAMBAI, J.C.A.: I have had the advantage

of reading before now, the lead Judgment delivered by my

learned brother, Habeeb Adewale Olumuyiwa

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Abiru, JCA. My learned brother has fully and admirably

dealt with the issue in this appeal. I entirely agree with his

exposition of the Law and I endorse same as mine as well

as the conclusions therein reached. I, too, dismiss the

appeal as lacking in merit and abide the Order as to costs

made in the lead Judgment.

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