ZENITH BANK PLC v. EMIRATES CREDITCORE& INVESTMENT LTD

CITATION: (2016) LPELR-41586(CA)

In the Court of AppealIn the Abuja Judicial Division

Holden at Abuja

ON THURSDAY, 8TH DECEMBER, 2016Suit No: CA/A/34/2015

Before Their Lordships:

ABUBAKAR DATTI YAHAYA Justice, Court of AppealTINUADE AKOMOLAFE-WILSON Justice, Court of AppealTANI YUSUF HASSAN Justice, Court of Appeal

BetweenZENITH BANK PLC - Appellant(s)

AndEMIRATES CREDITCORE & INVESTMENT LIMITED - Respondent(s)

RATIO DECIDENDI

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1. APPEAL - INTERFERENCE WITH EVALUATION OFEVIDENCE: Circumstance(s) when an Appellate Court will notinterfere with evaluation of evidence made by a Trial Court"It is the duty of the trial Court to evaluate the evidence ledbefore it and make findings of fact. It saw and heard thewitnesses. It made its assessment. Unless the findings areperverse, in the sense that they were not based on theevidence led, irrelevant matters were taken into account whichformed the basis of the findings, an appellate Court would notbe in a position to interfere. See ASANYA v. THE STATE (1991)4 NWLR (Pt. 180) 422 and POPOOLA v. ADEYEMO (1992) 8NWLR (Pt. 257) 1. The finding of the trial Court on thecredibility of the plaintiff's witness is supported by theevidence. The facts upon which the plaintiff's witnessstatement on oath was predicated upon was also pleaded. Icannot find any reason whatsoever, to interfere with thefinding of the trial Court that the respondent had satisfied allthe conditions precedent conveyed to it in Exhibit K, for theissuance of the performance Bond."Per YAHAYA, J.C.A. (P. 14,Paras. A-C) - read in context

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2. APPEAL - PROLIFERATION OF ISSUES: Position of the lawas it relates to proliferation of issues for determination"Formulation of issues is done, in order to consider together, anumber of related grounds of appeal within the issues to whichthey are related. It makes the determination of the appealintelligible and comprehensive -AGU v. IKEWIBE (1991) 3NWLR (Pt. 180) 385 at 401.It is the law, that no party is allowed, in an appeal, toformulate more than one issue from one ground of appeal -GWAR v. ADOLE (2003) 3 NWLR (Pt. 808) 516 and D.E.N.R.L.Av. TRANS INT'L BANK LTD. (2008) 18 NWLR (Pt. 1119) 399 at424. This is what happened here. The appellant distilled bothissues jointly from grounds 1 and 5. Raising more than oneissue from the same ground of appeal, amounts toproliferation which has been strongly deprecated and frownedat, by the Supreme Court and this Court. Proliferation of issuesfrom a ground of appeal is not acceptable and isdiscountenanced - See PADAWA v. JATAU (2003) 5 NWLR (Pt.813) 247; V.P.S. LTD v. UFOT (2006) 2 NWLR (Pt. 963) 1 andIKA v. MBA (2007) 12 NWLR (Pt. 1049) 676. In OGBE v. ASADE(2009) 18 NWLR (Pt. 1172) 106 at 123-124, Per Chukwuma-Eneh, JSC, the Supreme Court held:- "It is settled that oneissue can be raised from one or more grounds of appeal buttwo issues cannot be raised from a single ground of appeal.....It has been clearly settled that two issues cannot be raisedfrom a ground of appeal as a ground of appeal is supposed toencompass a single complaint. See OJE v. BABALOLA (1991) 4NWLR (Pt. 185) 267 at 270...." The above case was followed bythe Supreme Court, per Ngwuta, JSC in SOCIETY BIC SA & ORSv. CHARZIN INDUSTRIES LTD (2014) 4 NWLR (Pt. 1398) 497 at531, where he said - "... framing two issues from one ground ofappeal is a violation of the said principle. See AGU v. IKEWIBE(1991) 3 NWLR (Pt. 180) 385. A ground of appeal should not besplit to raise two issues. See also A.G. BENDEL STATE v.ADEYAN (1989) 4 NWLR (Pt. 118) 646. UGO v. OBIEKWE &ANOR (1989) 1 NWLR (Pt. 99) 566; ADELAJA v. FANOIKI (1990)2 NWLR (Pt. 131) 137."Per YAHAYA, J.C.A. (Pp. 3-5, Paras. F-C) -read in context

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3. APPEAL - INTERFERENCE WITH AWARD OF DAMAGES:Attitude of Appellate Court towards award of damages by theTrial Court"Learned counsel for the appellant has not stated which lawwas breached in the award of N5,000,000.00 damages and Icannot speculate. The respondent had performed and fulfilledall the conditions precedent for the issuance of the bond. Theappellant was duty bound to issue it within a reasonable time.It did not. It breached the agreement. It put the respondentinto some mental distress when it failed to reply its entreaties,and exposed it to the risk and later, to the cancellation of thecontract with its overseas partner. These were things a Courtis entitled to look at and arrive at an award. The award istherefore a matter of discretion. Unless it is established thatthe discretion was not exercised judicially and judiciously, anappellate Court cannot interfere even if it does not favour oneof the parties - ANYAH v. AFRICAN NEWSPAPERS (1992) NWLR(Pt. 247) 319 and AJOMALE v. YADUAT (2) (1991) 5 NWLR (Pt.191) 296. So even if this Court had a different opinion one wayor another, since the discretion of the trial judge has not beenimpeached, we cannot interfere with it."Per YAHAYA, J.C.A. (Pp.27-28, Paras. C-A) - read in context

4. CONTRACT - PERFORMANCE OF CONTRACT: Position ofthe law where a contract is silent as to the time of itsperformance"Even without the evidence of DW1 on immediate issue aftercompliance, the Courts have certainly come in, where anagreement does not stipulate the period or time for doing athing. The performance in such a situation should be donewithin a reasonable time, taking into consideration, thecircumstances of each case. In MOHAMMED v. MOHAMMED(supra) at page 45 paragraph E-G, this Court held - "Incontractual relation where time is of essence in respect ofperformance of a contract the law will imply performancewithin a reasonable time although the contract between theparties is silent in respect of time for performance."PerYAHAYA, J.C.A. (Pp. 18-19, Paras. D-A) - read in context

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5. CONTRACT - AGREEMENT: Effect of a written contractagreement entered by parties"It is a well settled general principle of law, that when partiesenter into an agreement, and they have reduced same intowriting that is what should govern their relationship. If there isany dispute, the agreement will be the reference point andnone of the parties would be allowed to vary, add, subtract orresile from it, i.e. no parole evidence would be allowed by theCourt in respect of that agreement. See U.B.N. v. OZIGI (1994)3 NWLR (Pt. 333) 385; AKUBURI v. MOBIL (2012) 14 NWLR (Pt.1319) 42 and S.F. & P v. N.D.I.C. (2012) 10 NWLR (Pt. 1309)522."Per YAHAYA, J.C.A. (P. 13, Paras. C-E) - read in context

6. CONTRACT - BREACH OF CONTRACT: Measure of damagesin an action for breach of contract"Damages are the pecuniary compensation which the lawawards to a person for the injury he sustained due to thedefault of another person - UMUDGE v. S.P.D.C. NIG. LTD(1975) 9-11 SC. In breach of contract cases, the measure ofdamages awardable, is the loss that flows naturally from thebreach and reasonably foreseeable by the parties at the timeof the contract, if there is a breach. See WAHABI v. OMONUWA(1976) LPELR 3459 (SC); S.B.N. PLC v. OPANUBI (2004) 15NWLR (Pt. 896) 437. Where a plaintiff succeeds in provingbreach of contract, the Court will consider restoring ham as faras money can compensate, to the position he would havebeen, if the defendant had not breached the contract. SeeOKONGWU v. N.N.P.C. (1989) 4 NWLR (Pt. 115) 296."PerYAHAYA, J.C.A. (P. 26, Paras. C-F) - read in context

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7. EVIDENCE - BURDEN OF PROOF/ONUS OF PROOF: Onwhom lies the burden of proof in civil cases"...See ONIGERIAWE v. EMEHINBA (2008) 9 NWLR (Pt. 1092)394 that - "The burden of proof is always on the person whoalleges, to prove. Thus, where a party seeks to persuade theCourt to accept a certain state of affairs, it must, on thepreponderance of evidence, prove it." In OGBONNA v. OGBUJI,(supra), this Court held - "The law has always placed a burdenof proof of any allegation on the shoulders of the person whowould fail if no evidence is adduced in support. Thus, while aRespondent has the burden to prove his case, the Appellantmight get his turn where the Respondent has given sufficientand credible evidence in proof of his case."Per YAHAYA, J.C.A.(Pp. 24-25, Paras. D-A) - read in context

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ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering theLeading Judgment): From the statement of claim filed bythe plaintiff, which is now the respondent, breach ofcontract and negligence were said to have been committedagainst it, by the appellant. Amongst other prayers, therespondent claimed:-(a) one hundred million naira as general damages formalicious breach of contract and negligent conduct;(b) sixty-four million, two hundred and fifty thousand, ninehundred and twenty naira as special damages;(c) one million, five hundred thousand naira only being thecost of this action; and(d) 10% interest per annum on the judgment sum, from thedate of judgment until liquidation.

The appellant denied the claim and on exchange ofpleadings, the matter went to trial at the end of which, thetrial Court found the appellant liable for breach of contractand negligence. It awarded the respondent, the sum ofN5,000,000.00 as damages and a 10% interest on thejudgment sum from the date of judgment until itsliquidation.

Dissatisfied, the appellant filed a Notice of Appeal on the18th of December 2014, against the judgment.

The

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facts briefly, are that the respondent and Crown

International FZE, Dubai, entered into a contract (Exhibit

B) which required the respondent to furnish a performance

Bond in the sum of $18,000 (N2,880,000.00). The

respondent therefore applied to the appellant on the 28th

of November, 2011 for the issue of the performance bond.

On the 12th of December 2011, the appellant made an offer

to the respondent, via Exhibit K in respect of the

Performance Bond. The respondent accepted the offer that

very day, and proceeded to comply with the requirements

to be met on its part. It stated that it did so by the 14th of

December 2011. The appellant did not issue the

Performance Bond. When Crown International FZE Dubai

did not receive the performance bond from the respondent,

it revoked the contract. This is what led to the Suit before

the trial Court.

The appellant's brief was settled by Dr. Soni Ajala, and wasfiled on the 25/3/2015. The respondent's brief, settled byMr. Okoye was filed on the 30/6/15 but deemed filed on the28/9/16. He also filed a Reply brief, deemed on 28/9/16.

From the five grounds of appeal, two issues wereformulated, as seen at

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page 7 of the appellant's brief. They are:-

1. Whether the learned trial judge in the light of the

totality of evidence or lack of evidence presented at

the Court below, was right and justified to have held

that the respondent is entitled to damages for the

alleged acts of negligence and breach of contract

when there was no credible evidence to establish

negligence and breach of contract against the

appellant.

2. Whether the respondent's failure to establish

and/or lead credible evidence as to the existence of a

cancellation of her contract with her overseas partner

will not render the judgment and award of damages to

the respondent unsustainable in law.

"RELATIONSHIP OF THE ISSUES TO THE GROUNDS

OF APPEAL

Issue one relates to ground 1, 2, 4 and 5.

Issue two relates to ground 1, 3 and 5."

From above, it is seen, that grounds 1 and 5, are commonto the two issues. In other words, more than one issue hasbeen formulated from grounds 1 and 5.

Formulation of issues is done, in order to considertogether, a number of related grounds of appeal within theissues to which they are related. I t makes thedetermination of the

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appeal intelligible and comprehensive -AGU v. IKEWIBE(1991) 3 NWLR (Pt. 180) 385 at 401.It is the law, that no party is allowed, in an appeal, toformulate more than one issue from one ground of appeal -GWAR v. ADOLE (2003) 3 NWLR (Pt. 808) 516 andD.E.N.R.L.A v. TRANS INT'L BANK LTD. (2008) 18NWLR (Pt. 1119) 399 at 424. This is what happenedhere. The appellant distilled both issues jointly fromgrounds 1 and 5. Raising more than one issue from thesame ground of appeal, amounts to proliferation which hasbeen strongly deprecated and frowned at, by the SupremeCourt and this Court. Proliferation of issues from a groundof appeal is not acceptable and is discountenanced - SeePADAWA v. JATAU (2003) 5 NWLR (Pt. 813) 247;V.P.S. LTD v. UFOT (2006) 2 NWLR (Pt. 963) 1 andIKA v. MBA (2007) 12 NWLR (Pt. 1049) 676. In OGBEv. ASADE (2009) 18 NWLR (Pt. 1172) 106 at 123-124,Per Chukwuma-Eneh, JSC, the Supreme Court held:-

"It is settled that one issue can be raised from one ormore grounds of appeal but two issues cannot beraised from a single ground of appeal..... It has beenclearly settled that two issues cannot be raised from aground

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of appeal as a ground of appeal is supposed toencompass a single complaint. See OJE v. BABALOLA(1991) 4 NWLR (Pt. 185) 267 at 270…."The above case was followed by the Supreme Court, perNgwuta, JSC in SOCIETY BIC SA & ORS v. CHARZININDUSTRIES LTD (2014) 4 NWLR (Pt. 1398) 497 at531, where he said -"… framing two issues from one ground of appeal is aviolation of the said principle. See AGU v. IKEWIBE(1991) 3 NWLR (Pt. 180) 385. A ground of appealshould not be split to raise two issues. See also A.G.BENDEL STATE v. ADEYAN (1989) 4 NWLR (Pt. 118)646. UGO v. OBIEKWE & ANOR (1989) 1 NWLR (Pt.99) 566; ADELAJA v. FANOIKI (1990) 2 NWLR (Pt.131) 137."

The two issues ought to have been ignored or struck out asincompetent, as it is not the duty of the Court to make achoice for the appellant between the two issues framedfrom one ground of appeal.

In the respondent's brief, learned counsel identified twoissues. They are:-1. Whether the Appellant's attitude, actions/inactionsculminating in its failure to issue the performanceBond within a reasonable time is negligent and/oramounts to a breach of the

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contract it has with the Respondent by virtue of the

Offer Letter (Exhibit K).

2. Whether relying on the quality of the evidence

before the Court the learned trial judge had rightly

entered judgment in favour of the Respondent.

Having regards to the state of the appellant's issues, Iconsider the issues suggested by the respondent to be aptand I shall utilize them in resolving this appeal.ISSUE NO 1Whether the appellant's attitude, actions/inactionsculminating in its failure to issue the PerformanceBond within a reasonable time is negligent and/oramounts to a breach of the contract it has with theRespondent by virtue of the Offer Letter (Exhibit K)

Learned counsel for the appellant submitted that since therespondent anchored its action on negligence and breach ofcontract, it had the burden of proof - Section 136 of theEvidence Act 2011 and the cases of TEXACO OVERSEASPETROLEUM CO. LIMITED v. RANGK LTD (2009) ALLFWLR (Pt. 494) 1520 at 1535 and MOZIE v. MALU(2006) 27 NSCQR 425 at 474 were referred to. Learnedcounsel referred to CLERK & LINDSEL ON TORT, 19thEdition, Page 383 Paragraphs 8.4 and KABIRU ABUBAKAR

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& ANOR v. JOHN JOSEPH (2008) 34 (Pt. 2) NSCQR

1195 at 1225 on the essential elements of negligence. He

then argued that apart from exhibits L, M and N tendered,

no credible evidence in proof of the alleged cancellation of

the sales and purchase contract between the respondent

and its foreign partners was placed before the trial Court

and that since cancellation of the contract was the pivot of

the case, and it had not been proved, the case of the

respondent had totally failed.

Learned counsel emphasized that Exhibits L, M and N andthe oral testimony of the PW1, did not establish a clear caseof negligence, as there was no direct link between theappellant and cancellation of the contract entered into,between the respondent and her foreign partners. That infact, there was no cancellation of the contract at all, as itwas the respondent that voluntarily withdrew, revoked andcountermanded its instructions for the issuance of theperformance bond, vide Exhibit N.

On Exhibit B counsel submitted that it is unconnected withthe appellant, since it is the name of ACCESS BANKNIGERIA PLC that is stated, not the appellant's name. Hewas emphatic

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that although Paragraph 26 of the statement of claim had

averred that an email dated 19/1/2012 called off the

contract, the email was not tendered and the reasons not

stated. There was therefore no proof of the cancellation of

the contract and no negligence was established, he argued.

He therefore opined that the finding and conclusion of the

trial court was against the weight of evidence.

Learned counsel also referred to Paragraph 26 of thestatement of defence and the evidence of PW1, which showthat the work free days associated with the "2013 Yuletidefestivities" and the strike called by the Nigerian LabourUnion in January 2012, on removal of oil subsidy affectedthe activities of the appellant. He argued that the trialCourt refused to take these into consideration andtherefore went into speculation as to time, when there wasno provision for any time cut-off in Exhibit K. This waswrong he argued, since a Court must not speculate andmust confine itself to the agreement entered into by theparties. He placed reliance on OLALOMI IND. LTD. v.N.I.D.B. (2009) 39 NSCQR 240 at 282; AGHARUKA v.F.B.N. LTD (2010) 3 NWLR (Pt. 1182) 465 at 482;AGIP

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(NIG.) LTD v. AGIP PETROLI INT'L (2012) 5 NWLR

(Pt. 1187) 348 at 413 and KENTUS CHEMICALS

PROJECTS LTD v. U.B.A. PLC (2014) ALL FWLR (Pt.

718) 980 at 990. Since the Court had failed to consider

the case of the appellant, as it is enjoined, to so do, its

decision is unfair, unjust and perverse, he submitted –

NEW RESOURCES INT'L LTD. v. EJIKE ORANUSI,

ESQ. (2011) 2 NWLR (Pt. 1230) 102 at 118; LAGGA v.

SARHUNA (2008) 16 NWLR (Pt. 114) 427 at 474 and

SARAH v. NIGERIA CUSTOMS SERVICE (2012) ALL

FWLR (Pt. 620) 1328 at 1345, especially as the

respondent had only partially complied with the

requirement for the issuance of the offshore bond evidence

of PW1 and DW1. He urged us to resolve in favour of the

appellant.

On his part, the learned counsel for the respondentsubmitted that the agreement between the appellant andthe respondent regarding the Performance Bond is ExhibitK which contains conditions for the issuance of thePerformance Bond. He enumerated them and submittedthat the respondent had satisfied them. He emphasized thatthe appellant had placed a lien on the respondent's cash, tothe tune of N3,456,000,00 (Exhibit A) as security for

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(collateral) which the appellant asked for. Since the

respondent had fully performed or done what it was

required to do, it expected the appellant to issue the Bond,

he argued. He referred to B.F.I. GROUP CORP. v. B.P.E

(2012) 18 NWLR (Pt. 1332) 209 at 247. Since there is a

document that has spelt out the agreement between the

parties (Exhibit K) the appellant cannot now come and say

there are other conditions, without stating them or showing

that they had been embodied in Exhibit K - A.G.

NASSARAWA STATE v. A.G. PLATEAU STATE (2012)

10 NWLR (Pt. 1309) 419 at 458 and TEXACO

OVERSEAS (NIG.) v. RANGK LTD (2009) ALL FWLR

(Pt. 494) 1520 at 1535. If there are other conditions, the

appellant has the duty to establish them by credible

evidence, he argued - OGBONNA v. OGBUJI (2014) 6

NWLR (Pt. 1403) 205 at 232. He argued that the

appellant has not led any evidence in this regard.

Having performed its part, counsel argued that the

appellant was duty bound to issue the Performance Bond

within a reasonable time. Even when no time is stipulated

for the performance of an action, the Courts have used a

reasonable t ime as a yardstick. He referred to

MOHAMMED v. MOHAMMED

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(2012) 11 NWLR (Pt. 1310) 1 at 45. Counsel also

referred to the evidence of DW1 at pages 183 and 184 and

argued that the appellant was to issue the Bond

immediately or at most, within 48 hours. It failed to do so,

even when its attention was drawn to the threat by Crown

International FZE Dubai, to cancel the contract, he

submitted. Its failure, he argued, was malicious, a breach of

contract, and negligent. It failed. He urged us to resolve

the issue in favour of the respondent.

Now, it is not controverted, that the appellant and therespondent had entered into an agreement, on the 12th ofDecember 2011, for the issuance of a Performance Bond inthe sum of $18,000.00, for the benefit of CrownInternational FZE Dubai, WAE (Exhibit K). This was sequelto the agreement entered into between the respondent andthe said Crown International FZE Dubai in a contract sumof $900,000.00. The conditions for the issuance of the Bondare well and truly stated in Exhibit K. The following are thefour conditions precedent for the issuance of thePerformance Bond. They are to be met by the respondent -1. Acceptance of offer, evidenced by signing and returningthe

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attached copy of this offer letter by authorized signatories

of Emirates Creditcore.

2. Submission of Board Resolution of Emirates Creditcore

authorizing and accepting usage of the Bond.

3. Receipt of a Letter of Undertaking from Emirate

Creditors committing to route other subsequent payments

in respect of the contract through Zenith.

4. Receipt of a duty executed Debit Note issued in favour of

Zenith to cover the Bond fee of 8% i.e. $1,440 or its naira

equivalent of N230,400.00 at N160/$.

In its pleadings, the respondent averred that it had fulfilledits own side of the bargain by complying with all theconditions precedent required in Exhibit K. This wasfollowed up by evidence. The plaintiff's witness statementon oath, paragraph 16 (page 17 of the record) shows thatthe respondent had "fulfilled all the requirements for thegrant of the requested facility, and was assured by theDefendant that the facility shall be granted withoutdelay...."

The trial Court in its judgment, page 214 of the record,stated that -"It is in evidence that the plaintiff fulfilled all therequirements for the grant of the requested

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facility...."

The Court showed that it had accepted the evidence of therespondent when it held that -"The Plaintiff having fully satisfied all the conditionsprescribed by Exhibit K for the issuance of thePerformance Bond, the Defendant cannot now beheard to complain that there were yet otherconditions which the Plaintiff is battling to complywith, this is more so as no such condition wascommunicated to the plaintiff. I so hold. (Page 214 ofthe record).

It is a well settled general principle of law, that whenparties enter into an agreement, and they have reducedsame into writing that is what should govern theirrelationship. If there is any dispute, the agreement will bethe reference point and none of the parties would beallowed to vary, add, subtract or resile from it, i.e. noparole evidence would be allowed by the Court in respect ofthat agreement. See U.B.N. v. OZIGI (1994) 3 NWLR(Pt. 333) 385; AKUBURI v. MOBIL (2012) 14 NWLR(Pt. 1319) 42 and S.F. & P v. N.D.I.C. (2012) 10 NWLR(Pt. 1309) 522.

In this vein therefore, in the absence of any suggestion orproof that the agreement was illegal, this Court shall

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look at and give full effect to Exhibit K, as governing the

relationship between the appellant and the respondent. The

trial Court has made findings on the evidence. It is the duty

of the trial Court to evaluate the evidence led before it and

make findings of fact. It saw and heard the witnesses. It

made its assessment. Unless the findings are perverse, in

the sense that they were not based on the evidence led,

irrelevant matters were taken into account which formed

the basis of the findings, an appellate Court would not be in

a position to interfere. See ASANYA v. THE STATE

(1991) 4 NWLR (Pt. 180) 422 and POPOOLA v.

ADEYEMO (1992) 8 NWLR (Pt. 257) 1. The finding of

the trial Court on the credibility of the plaintiff's witness is

supported by the evidence. The facts upon which the

plaintiff's witness statement on oath was predicated upon

was also pleaded. I cannot find any reason whatsoever, to

interfere with the finding of the trial Court that the

respondent had satisfied all the conditions precedent

conveyed to it in Exhibit K, for the issuance of the

performance Bond.

Under cross-examination, DW1 stated (page 184 of the

record) -

"With respect of

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offshore credit it is not customary for the bank to

state all the conditions precedent for the draw down

in the offer letter. The other conditions will arise in

the course of the transaction as contingencies."

The impression given here is that the appellant hides a fewconditions precedent in its hat and brings them out onlywhen it is boxed into a corner, in order to escape liability.This should never have been something that would be saidof a bank, where trust confidence and communication arevital for survival and relationships.

If they fail to inform a customer of conditions precedent atthe beginning, at what stage would they inform him? The"course of the transaction" cannot arise, unless theconditions precedent for the commencement of thetransactions, are satisfied. It was right therefore, when thetrial Court rejected this statement. It has no valuewhatsoever.

If the appellant insists that there are other conditionsprecedent, or that the respondent had only partiallycomplied with the conditions precedent, then it was up tothem to state in no uncertain terms, what conditions therespondent had failed to satisfy. If there

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is good faith, as I expect, the attention of the respondent,

should have been drawn to the conditions they had not

satisfied, so that they would know and make amends. Not

only is there no evidence that the appellant had

communicated and had drawn the attention of the

respondent at the time or at any other time, there is no

evidence before this Court to show what conditions remain

to be satisfied and complied with, which the respondent

had failed to satisfy. This is a Court of law and facts and so

where the two are absent, no pronouncement can be made.

The appellant has submitted that the trial Court had failedto consider the strike called by the Labour Union onwithdrawal of fuel subsidy in January 2012 and the "2013Yuletide Festivities" that intervened to affect itsperformance, in the circumstance.

The agreement between the parties (Exhibit K) was enteredinto on the 12th of December 2011, and it ended on the19th of January 2012. So the "2013 Yuletide festivities", hasno bearing whatsoever on it.

Further, by Paragraph 26 of the statement of defence, thecrisis on the withdrawal of fuel subsidy was from 9th-17thJanuary, 2012. What

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was the appellant doing between 12th of December 2011 to

the 6th of January 2012, a period of about 26 days? No

explanation was given whatsoever! This is despite the fact

that the respondent had drawn its attention repeatedly, to

the need to perform its contractual duty urgently

culminating in its letter of the 4th of January 2016,

attaching the e-mail from Dubai, threatening to revoke the

contract with the respondent! The excuses furnished by the

appellant are untenable and therefore taking them into

consideration would not have been of any value. There was

no denial of fair hearing at all.

The appellant has also submitted that the trial Court hadintroduced new issues to Exhibit K in terms of time whenno stipulation to that effect was made.

It is true, that the time for the issue of the PerformanceBond was not stated in Exhibit K, but the appellant wascertainly in the know, that it was supposed to issue itimmediately the respondent had complied with theconditions precedent. This is clearly seen from the evidenceof its witness, DW1 which corroborated the evidence ofPW1 in paragraph 16 of his statement on oath. At page 184of the record,

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when under cross-examination, DW1 said -

"If the customer fulfilled all the conditions the credit

letter will be issued immediately provided there is no

outstanding correspondence."

It is therefore crystal clear, that even without stating sospecifically, the performance bond was supposed to havebeen issued immediately the respondent had complied.'Immediately' has not been defined but the respondentcounsel's submission that issuing the performance bondwithin 48 hours after compliance will be in order. Theperformance bond was not issued within 48 hours and wasin fact not issued at all.

Even without the evidence of DW1 on immediate issueafter compliance, the Courts have certainly come in, wherean agreement does not stipulate the period or time fordoing a thing. The performance in such a situation shouldbe done within a reasonable t ime, taking intoconsideration, the circumstances of each case. InMOHAMMED v. MOHAMMED (supra) at page 45paragraph E-G, this Court held -"In contractual relation where time is of essence inrespect of performance of a contract the law willimply performance within a reasonable time althoughthe

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contract between the parties is silent in respect of

time for performance."

So, when the trial Court held that the performance bondought to have been issued within a reasonable time, it waswell within the ambit of the law. It was not reading oradding anything into the agreement reached by the parties- Exhibit K.

In the instant case, the offer to issue the performance bondto the respondent was made on the 12th of December,2011, by the appellant and the respondent was required toaccept same and sign it, by the 26th of December, 2011,i.e. within 14 days.

The respondent did not wait any longer. It signed theagreement on that very date, and complied with all theconditions precedent, on the 14th of December 2011. In myview, this was a clear signal to the appellant that therespondent meant business and wanted the performancebond issued, soonest. When it wasn't forthcoming, it keptcontacting the appellant and reminding it of the need toissue it. The appellant did not issue it. Even when CrownInternational FZE Dubai threatened to revoke theagreement with the respondent within 24 hours and thisfact was communicated to the

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appellant, it still failed to issue the performance bond.

There is no doubt that the appellant did not act timeously,and within a reasonable time, taking into consideration, thepeculiar circumstances of this case. It was negligent,unprofessional and had breached the agreement (ExhibitK). The trial judge was therefore right in these findings asthere was evidence upon which they were boxed. Wecannot interfere.

The appellant had, in the brief, and in the Reply briefargued that the respondent had failed woefully, to placeany iota of proof of cancellation of the contract with CrownInternational FZE Dubai and that only letter of 30/1/12 wasplaced.

This is not the correct position. Earlier on the 19th ofJanuary 2012, the respondent had written to the appellantintimating it of the cancellation of the contract with theoverseas company. It therefore said that the performancebond was no longer required it cancelled the request. Theappellant did not bother to reply it.

At any rate, it is no longer crucial, that the respondent didnot provide the letter of cancellation of the contract withthe overseas company. The fact

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remains that the appellant was negligent and had breached

her contractual agreement which led to the respondent

incurring losses. The findings of the trial Court are

impeccable as they cannot be impeached. Consequently,

issue No. 1 is resolved in favour of the respondent and

against the appellant.

ISSUE NO. 2Whether relying on the quality of the evidence beforethe Court the learned trial judge had rightly enteredjudgment in favour of the respondent.

Learned counsel for the appellant submitted here, that therespondent did not lead evidence to establish thecancellation of the contract with its overseas partner andthat the conclusion of the trial Court the contract wasindeed cancelled as a result of the unprofessional conductof the appellant is only speculative. Since the respondentdid not establish the cancellation, damages could not bereasonable for negligent act and breach of contract, heargued. He referred to AKANDE v. ADISA (2012) 15NWLR (Pt. 1324) 538 at 574 and OGBANNA v.OGBUJI (2014) 6 NWLR (Pt. 1403) 205 at 232. Heurged us to set aside the award of N5,000,000.00 damages.

Learned counsel for the respondent

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restated his position recounted in Issue No. 1 concerning

the evidence led before the trial Court, particularly exhibits

A, B, G, H, K, L, M and N. He emphasized that by the

19th of January 2012, when the respondent had much

earlier, satisfied all the conditions for the issuance of the

Performance Bond and when the appellant had failed to

issue same, Crown International FZE Dubai cancelled the

contract it had with the respondent, which was the purpose

for the performance bond. He said this cancellation was

immediately relayed to the appellant together with the mail

from Crown International FZE Dubai attached (Exhibit M).

I find as curious, the submission of the appellant in theappellant's brief, which was also repeated at page 2 of itsReply brief, that the respondent did not place any iota ofproof of cancellation of its contract with Crow InternationalFZE, Dubai.

It is instructive, to note that the Writ of Summons and thestatement of claim also had the Plaintiffs witness statementon oath and other documents, frontloaded and served onthe respondent. At page 171 of the record, PW1 adoptedhis witness statement on oath and as a result, some

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documents he referred to on his witness statement on oath

were admitted and marked as exhibits. His witness

statement and the exhibits are therefore evidence before

the Court. At Paragraphs 25 and 26 of his witness

statement on oath, PW1 stated that on the 4th of January

2012, Crown International FZE Dubai, the beneficiary of

the Performance Bond, which is the subject of the

agreement between the appellant and the respondent,

threatened within 24 hours to cancel the contract it had

with the respondent, since the performance Bond had not

been issued by the appellant. The respondent immediately

informed the appellant of this development but still, the

appellant did not heed and did not issue the Performance

Bond it contracted to issue. At Paragraphs 27, 28 and 29 of

his plaintiffs witness statement on oath, PW1 stated that on

the 19th of January 2012, Crown International FZE, Dubai

made good its threat and cancelled its contract with the

respondent, as a result of the undue delay by the appellant

to issue to it, the Performance Bond. The respondent

immediately communicated this fact to the appellant, who

did not show any remorse for its negligent conduct. The

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respondent therefore wrote to the appellant withdrawing

the issue for the performance Bond since its object was no

longer available. These statements are evidence before the

Court. They have firmly established the threat to and the

subsequent cancellation of the contract by Crown

International FZE Dubai, with the respondent, for the

negligent conduct and breach of contract by the appellant.

The respondent had thus discharged the burden on it, to

prove cancellation of the contract by Crown International

FZE Dubai. It had made a prima facie case. The burden had

shifted to the appellant. It has not established anything to

the contrary and it must fail. See ONIGERIAWE v.

EMEHINBA (2008) 9 NWLR (Pt. 1092) 394 that -

"The burden of proof is always on the person who

alleges, to prove. Thus, where a party seeks to

persuade the Court to accept a certain state of affairs,

it must, on the preponderance of evidence, prove

it." In OGBONNA v. OGBUJI,

(supra), this Court held -

"The law has always placed a burden of proof of anyallegation on the shoulders of the person who would fail ifno evidence is adduced in support. Thus, while aRespondent has the

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burden to prove his case, the Appellant might get his

turn where the Respondent has given sufficient and

credible evidence in proof of his case."

It is true that due to technical reasons, the e-mail, fromCrown International FZE Dubai, on the cancellation of thecontract, were not tendered, even though they were front-loaded with the Writ. However, the plaintiff! WitnessStatement on oath is clear evidence before the Court of thecancellation of that contract. This evidence has not beensuccessfully impeached by the appellant. The trial judgewas therefore entitled, on the evidence led, to hold thatCrown International FZE Dubai had indeed cancelled thecontract it had with the respondent, for failure of theappellant to perform its contractual obligation. We see noreason to interfere, as it was not at all a speculation, butbased on evidence before the Court. Issue No. 2 is resolvedin favour of the respondent and against the appellant.

I note that counsel for the appellant had put up a spiritedeffort. But brilliant argument as it were, cannot replace thehard facts that the appellant had failed to honour itscontractual obligation even

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though it had taken benefit from the contract. Its silence

and refusal, even to communicate with the respondent in

the given circumstances, to the detriment of the

respondent, is not excusable and it needs to investigate

what happened in order to avoid similar things in the

future. It cannot afford the lax exhibited by some of its

staff.

Damages are the pecuniary compensation which the lawawards to a person for the injury he sustained due to thedefault of another person - UMUDGE v. S.P.D.C. NIG.LTD (1975) 9-11 SC. In breach of contract cases, themeasure of damages awardable, is the loss that flowsnaturally from the breach and reasonably foreseeable bythe parties at the time of the contract, if there is a breach.See WAHABI v. OMONUWA (1976) LPELR 3459 (SC);S.B.N. PLC v. OPANUBI (2004) 15 NWLR (Pt. 896)437. Where a plaintiff succeeds in proving breach ofcontract, the Court will consider restoring ham as far asmoney can compensate, to the position he would havebeen, if the defendant had not breached the contract. SeeOKONGWU v. N.N.P.C. (1989) 4 NWLR (Pt. 115) 296.

The learned counsel for the appellant has argued that theaward of

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N5,000,000.00 as damages is not in accordance with the

law and therefore wrongful and should be set aside.

Learned counsel for the respondent has also prayed thisCourt, to grant the claim for special damages as they havebeen proved.

Learned counsel for the appellant has not stated which lawwas breached in the award of N5,000,000.00 damages andI cannot speculate. The respondent had performed andfulfilled all the conditions precedent for the issuance of thebond. The appellant was duty bound to issue it within areasonable time. It did not. It breached the agreement. Itput the respondent into some mental distress when it failedto reply its entreaties, and exposed it to the risk and later,to the cancellation of the contract with its overseas partner.These were things a Court is entitled to look at and arriveat an award. The award is therefore a matter of discretion.Unless it is established that the discretion was notexercised judicially and judiciously, an appellate Courtcannot interfere even if it does not favour one of the parties– ANYAH v. AFRICAN NEWSPAPERS (1992) NWLR(Pt. 247) 319 and AJOMALE v. YADUAT (2) (1991) 5NWLR

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(Pt. 191) 296. So even if this Court had a different opinion

one way or another, since the discretion of the trial judge

has not been impeached, we cannot interfere with it.

As regards the prayer of the respondent to award specialdamages, it is clear that there is no cross-appeal againstthe decision of the trial Court to dismiss it. It cannottherefore be raised at all here since it is outside the groundof appeal filed by the appellant - OSAZUWA v. ISIBOR(2004) 3 NWLR (Pt. 859) 16; EZE v. OBIEFUNA & ORS(1995) 6 NWLR (Pt. 404) 639 and OBI v. I.N.E.C. &ORS (2007) 11 WLR (Pt. 1046) 560.

In sum, this appeal has no merit and it is dismissed.N50,000 costs to the respondent.

TINUADE AKOMOLAFE-WILSON, J.C.A.: I had theprivilege of reading before now the lead judgment justdelivered by my learned brother, Yahaya, JCA.

My lord has exhaustively dealt with the issues involved inthis appeal. I am in total agreement with the reasoning andconclusion.

I accept that the appeal is totally devoid of merits. I toodismiss it with N50.000.00 to the respondent.

TANI YUSUF HASSAN, J.C.A.: I had the

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opportunity of reading the lead judgment of my learned

brother, Abubakar Datti Yahaya, J.C.A.

I fully agree with his reasoning and conclusion. I endorse

the judgment and order on costs. He has eminently

addressed the issues in this appeal. I have nothing more to

add.

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