Concurrent Findings

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. (Delivering the Leading Judgment): This appeal is against the judgment of the Court of Appeal, Port Harcourt Division delivered on 21st July, 2014, dismissing the appellant’s appeal against the judgment of the High Court of Rivers State sitting at Port Harcourt, delivered on 6th August, 2013.

The facts of this case, as can be gleaned from the pleadings of the parties are as follows: The respondent is one of the appellant’s trade partners. Their business relationship started sometime in 2005 and over the years has been governed by various agreements entered into between them. In particular, in January 2011 the appellant issued fresh terms of agreement and it was specifically stated that the 2011 agreement supersedes previous agreements. The 2011 agreement was identified as No. 381730 (Exhibit A). It was a term of the agreement that the Claimant/Respondent had the right to terminate the agreement upon giving the Defendant/Appellant 3 months’ notice in writing, while the defendant/appellant had the right to terminate the agreement upon giving the claimant/respondent 60 days written notice.

The agreement had some annexures, which, according to the respondent provided for the rights and duties of the parties.

It was the contention of the claimant/respondent that despite trading and carrying on business with the defendant/appellant in accordance with Exhibit A, the appellant purportedly terminated the agreement vide a letter dated 18th March 2011 (Exhibit B). It contended that the letter was not in compliance with the terms of Exhibit A and was in fact addressed to a different company, to wit: Corporate Communication Ltd. The claimant/respondent protested by writing a letter dated 29th March 2011. The claimant/respondent pleaded that on 4th April 2011, it placed orders for the appellant’s products, which were rejected on account of the termination letter.

Despite its solicitor’s letter challenging the termination of the agreement and requesting an amicable settlement, the appellant withdrew 27 SIM registration kits assigned to the respondent. The respondent pleaded that in compliance with previous Trade Partner Agreements between the parties, it had incurred expenses in procuring facilities and equipment which were of no more use to it, in view of the purported termination of Exhibit A. The claimant/respondent pleaded that the abrupt cancellation of orders without a formal and valid termination of their agreement has caused it huge financial loss.

By its writ of summons and statement of claim dated 12th May, 2011, the respondent sought the following reliefs against the appellant:
(a) A declaration that the purported termination of Agreement Number 381730 between the Claimant and the Defendant on the 1st day of April. 2011 is not valid, oppressive and wrongful.
(b) A declaration that the purported letter of termination of the agreement number 381730 dated 18th March, 2011 does not refer to the Claimant and cannot be relied upon by the Defendant as proper Notice of termination against the Claimant.
(c) N500,000,000.00 as general damages for the unwarranted and abrupt cancellation of Claimant’s Orders as a result of the wrongful, invalid or oppressive conduct of the Defendant against the Claimant.

In its Statement of Defence dated 5th July, 2011, the appellant pleaded that the agreement was validly terminated in accordance with clause 16.2 thereof for reason of non-performance and rejected the claim that the respondent had incurred any expenses on its account. The respondent filed a Reply to Statement of Defence dated 28th July, 2011. The parties called one witness each who adopted their written statements on oath and were cross examined thereon. Several exhibits were admitted in evidence through the respondent’s witness without objection. Among the documents tendered was Exhibit A, the Trade Partner Agreement between the parties.

At the conclusion of the trial, the parties exchanged written addresses. In the course of his written submissions, learned counsel for the Claimant (now respondent) argued that the Statement of Defence filed by the appellant was defective, as it did not disclose the name of the legal practitioner who signed it “for: G. Akitoye Esq.” The learned trial Judge agreed with him and held the Statement of Defence to be incompetent. The Court further held that in the circumstances, the evidence of DW1 predicated upon an incompetent Statement of Defence, was of no moment. In other words, it was discountenanced.

……………………………C……………………………

In the course of writing the judgment, the learned trial Judge observed that Exhibit A was not signed by the appellant. Having raised the issue suo motu, he invited the parties to address him on the weight to be attached thereto. Both counsel filed written addresses on the issue. The learned trial Judge held at page 176 of the record:
“Throughout the cross examination of C.W.1, Learned Counsel for the defendant did not ask him any question to disprove the authenticity of Exhibit A. The authenticity of Exhibit A’ would have been in doubt if it was prepared by the claimant, the claimant signed it but the defendant did not sign and the claimant is relying on same in the instant case.
Furthermore, the defendant in alleging that its relationship with the claimant has been terminated relied on Exhibit A. See the letter of termination of the agreement sent to the claimant by the defendant, Exhibit B: In this regard, in so far as the claimant and the defendant transacted their business in compliance with the terms of Exhibit A’ and the defendant relied on Exhibit A’ in terminating its relationship with the claimant, the fact that the defendant did not sign Exhibit A’ is of no moment. This is so because equity looks on that which ought to be done.

Learned Counsel for the defendant cannot be heard to say that Exhibit A’ was inadmissible in evidence and also a worthless document when it was the defendant who prepared it and made the claimant to sign but for reasons best known to the defendant, its Chief Executive Officer or officers did not sign but rather went on carrying on business with the claimant in accordance with the terms of Exhibit A.”

His Lordship went on to hold that Exhibit A was rightly admitted in evidence. After a careful consideration of the entire case, judgement was entered in the claimant/respondent’s favour to the effect that the appellant was in breach of Exhibit A in terminating the agreement between the parties. The respondent was awarded the sum of N250 million as general damages and costs of N20, 000.00.

The appellant was dissatisfied with the judgment and filed an appeal at the Court below. The appeal was dismissed on 21/7/2014. The appellant is still dissatisfied, hence the instant appeal. The extant notice of appeal is the Amended Notice of appeal filed on 19/1/2018 but deemed filed on 28/11/2018. It contains 12 grounds of appeal.

At the hearing of the appeal on 19th December, 2018, D.C. DENWIGWE, SAN adopted and relied on the Appellant’s amended brief of argument and reply brief, both deemed filed on 28/11/2018, along with a list of additional authorities filed on 19/12/2018, in urging the Court to allow the appeal. NYENGIEREFAKA JOSHUA ESQ., adopted and relied on the amended respondent’s brief, settled by him and deemed filed on 28/11/2018 in urging the Court to dismiss the appeal.

……………………………D……………………………

The appellant formulated 4 issues for determination as follows:
(a) Whether the Court of Appeal below was right when it acted on extraneous matters including the evidence of the a D.W.1 at the trial in reaching its decision to affirm the judgment of the trial Court? (Grounds 6 and 11).
(b) Whether the Court of Appeal was right in holding that the document which was admitted in evidence at the trial as Exhibit ‘A” created an implied, binding and enforceable contract between the appellant and the respondent? (Grounds 1, 5,7, 8, 9, 10).
(c) Whether the affirmation of the award of general damage made to the respondent against the appellant and the award of costs made against the appellant is justified? (Grounds 2, 3, and 4).

(d) Whether the Learned Justices of the Court of Appeal was (sic: were) right when they held that the appeal lacks merit? (Ground 12).

The respondent also formulated 4 issues for determination. They are practically identical to the appellant’s issues with just slight modifications in expression. I shall therefore adopt the issues as formulated by the appellant in the resolution of this appeal. Issues (a), (b) and (c) are sufficient to dispose of the appeal.

Issue (a)
Whether the Court of Appeal below was right when it acted on extraneous matters, including the evidence of the DW1 at the trial in reaching its decision to affirm the judgment of the trial Court?

Learned Senior Counsel submitted that the effect of the unchallenged finding of the trial Court that the Statement of Defence was incompetent and that the evidence of DW1 was of no moment, is that the Statement of Defence never existed. He referred to: U.A.C Vs MC Foy (1961) 3 ALL ER 1169; Oyeyemi Vs Owoeye (2017) 12 NWLR (Pt. 1580) 364 @ 423 B-E and 395-396 H-C. He noted that the lower Court affirmed this finding.

He submitted that in the circumstance, the Reply to the Statement of Defence together with the further claimant’s Deposition of CW1 at pages 93-96 of the record are also void and should be expunged from the record. He submitted that any evidence extracted from CW1 on facts not pleaded are inadmissible. He referred to SLEE Transport Ltd. Vs Oluwasegun (1973) 9-10 SC 7; (1973) NSCC Vol. 8 470 @ 473-477; Emegokwue Vs Okadigbo (1973) 4 SC 113; George Vs Dominion Flour Mills Ltd. (1963) 1 SCNLR 177; Gagarau Vs Pashiri (2006) 2 NWLR (Pt.962) 521 @ 538 G-N.

In paragraph (a) 05 at pages 8-9 of his brief, the Learned Senior Counsel provided an index of the evidence of CW1 which ought to be expunged. In paragraph 2(i)-(vi), he also set out findings of the lower Court based on facts not derived from the Statement of Claim and the witness deposition of the respondent nor from the cross-examination of CW1 on pleaded facts. He referred specifically to the finding of the lower Court at page 337 of the record with regard to the award of damages of N100 million in favour of the respondent and submitted that both the trial Court and the Court below relied on extraneous facts, which do not form part of the record, to justify the award.

……………………………E……………………………

Learned Senior Counsel for the respondent rejected the assertion of the appellant’s senior counsel. He submitted that at the Court below, the Court’s attention was drawn to certain findings of the trial Court not appealed against. He submitted that the position of the law is that any decision on any point of law or fact not appealed against is deemed to have been conceded by the party against whom it was decided and remains valid and binding on all the parties. He referred to: Anyanwu Vs Ogunewe (2014) ALL FWLR (Pt. 738) 1012 @ 1037 D-E.

He submitted that it was argued before the lower Court that the following issues were deemed to have been conceded by the appellant:
(a) That the agreement the appellant relied upon to issue Exhibit “B” was Exhibit “A”; and
(b) That the Appellant relied on clause 16.2 of Exhibit “A” in terminating Exhibit A” which constitute admissions against the appellant as same supports paragraphs 6 and 8 of the Respondent’s Statement of Claim (Pages 4 and 5 of the records), and remain admissible irrespective of the fact that the Appellant’s Statement of Defence and deposition were struck out.

He submitted that the appellant did not challenge the assertion in its reply brief and is deemed to have admitted same. He also submitted that the findings of the Court below are not based on extraneous matters but on matters clearly pleaded in the Respondent Statement of Claim.

Learned Senior Counsel argued that although the appellant’s Statement of Defence was struck out, its witness gave viva voce evidence under cross examination, which in effect challenged the respondent’s Statement of Claim. He submitted that having put himself forward to be cross examined, the Court was entitled to rely on the oral evidence elicited therefrom. He submitted that a party is fully entitled to rely on the evidence elicited from his opponent’s witness under cross examination, which corroborated facts already pleaded in the Statement of Claim. He referred to: Adeosun Vs Governor Ekiti State (2012) 4 NWLR (Pt.1291) 581 @ 600; Gaji Vs Paye (2003] 8 NWLR (Pt. 823) 583 @ 611. He submitted that in as much as the Respondent’s further claimant’s deposition and the admission extracted from DW1 under cross examination, support the respondent’s statement of claim, the Court was entitled to rely on them in reaching its decision. He submitted however, that the two lower Courts did not in fact rely on the Reply to the Statement of Defence and the Respondent’s further witness deposition but relied on the fact that the appellant’s witness, DW1, admitted that the claimant was entitled to the sum of N100 million for the SIM Cards reactivation. He argued that this amounts to an admission against interest which is admissible.

In paragraph 4.29 (a) to (k) of his brief, learned senior counsel addressed the issues highlighted in the amended appellant’s brief on the alleged extraneous matters taken into consideration by the Court below and reiterated the position that all the Courts findings are supported by the record. He submitted that what an appellate Court is concerned with is the correctness of the decision and not whether the reasons for the decision are right or wrong. See: Dickson Arisa Vs The State(1988) 7 SCNJ 76 @ 84 lines 20-25.

He submitted further that an appellate Court must limit itself, to the grounds of appeal and the issues

formulated from the said grounds. He contended that in the instant case the issues raised by the appellant concerned the validity of Exhibit A, the award of N250 million as damages and the award of costs. He submitted that the findings of fact by the trial Court on these issues were not challenged at the Court below and that it amounts to raising a new issue, for which no leave has been sought, to argue before this Court that the findings of the two lower Courts are perverse. He submitted that in this case, the findings and decision of the lower Court were based on the unchallenged findings of the trial Court and upon a correct assessment of damages and costs.

……………………………F……………………………

In his reply brief, the learned senior counsel sought to distinguish the authority of Gaji Vs Paye (supra) relied upon by learned senior counsel for the respondent. He submitted that in Gaji’s case it was held that the entitlement of a plaintiff to rely on evidence elicited from a defence witness under cross examination is restricted to evidence given in respect of issues joined between the parties or in respect of a fact pleaded by the defence. He referred to: Bamgboye Vs Olarewaju (1991) 4 NWLR (Pt. 184) 132 @ 155 C-D. He submitted that in the instant case, the pleading and deposition of the appellant’s witness were frontloaded and having been declared void for incompetence, the effect in law is that nothing can be placed on them. He argued that in the circumstances, the issue of admission against interest does not arise.

My Lords, in order to do justice to this issue, I have read over several times, the judgments of the two lower Courts. The appellant’s main grouse under this issue is that the lower Court and the trial Court relied on the evidence of DW1 elicited under cross-examination and the claimant’s reply to the statement of defence notwithstanding the fact that the pleadings of the defendant/appellant had been struck out for incompetence.

At page 171 of the record, the learned trial Judge held as follows:
“In the instant case, since the defendant’s statement of defence has been found to be incompetent and the evidence of its sole witness DW1 is of no moment, the Court is now left with the evidence of claimant’s sole witness, CW1 and his answers under cross examination.

In other words, the evidence to be evaluated in this judgment is the evidence of CW1 and the documents tendered as exhibits.”

In keeping with this self admonition, His Lordship at pages 194-198 comprehensively reviewed the pleadings of the claimant along with the evidence of CW1 and the documents tendered, to determine whether the claimant was entitled to its claim for damages on account of expenses incurred in the course of the agreement between the parties. His Lordship concluded thus at page 197 lines 25-27 to page 198 lines 1-9 of the record:
In the case of HAROLD SHODIPO & CO VS DAILY TIMES (1972) N.S.C.C. 635 @ 637, the Supreme Court per Elias (CJN) while explaining the meaning of general damages as opposed to special damage, stated as follows:
“Whereas a claim for general damage means this:
“We cannot prove particular items but we can prove beyond all possible doubt that there has been pecuniary loss.”
Going by the above authority, the evidence of CW1 on expenses incurred in running the defendant’s business as per Exhibit A; the amount of money due to the claimant for SIM Card reactivation and the rejection by defendant of the order the claimant placed for its products, I find and hold that the claimant have (sic) proved beyond all possible doubts that it incurred pecuniary loss suffered by the other party which is reasonably foreseeable as a result of the breach.”

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In the next paragraph, His Lordship stated, inter alla:
“Now assuming I was wrong in holding that the statement of defence of the defendant was incompetent and the evidence of DW1 therefore of no moment. In other words, the statement of defence of the defendant is competent and evidence of DW1 of moment, I am of the view that the evidence of DW1 supports the claimant’s case. This is because DW1 stated that Exhibit 4′ was duly terminated in accordance with clause 16.2 of Exhibit A’.
In effect therefore, in terminating Exhibit A’ the defendant relied on clause 16.2 thereof. This Court having found that the defendant did not give the requisite notice as required by said clause 16.2, the evidence of DW1 therefore supports claimant’s case that the termination was in breach of Exhibit ‘A’.
Furthermore, the evidence of DW1 when viewed against the claim for damages by the claimant supports the claimant claim.

For example, DW1 submitted that the claimant is entitled to the sum of 741100,000,000.00 for the SIM Cards it reactivated. DW1 also admitted the rejection by the defendant of the order placed by the claimant for its products because of Exhibit ‘B: He also under cross examination stated that the profit a trade partner like the claimant makes, depends on the volume of order placed by the trade partner or sales and went on that a trade partner could make a commission of N500,000,000.00.
Whether this case is considered with or without the statement of defence and evidence of DW1, I am of the view that the defendant has breached the terms of Exhibit A’ and the claimant suffered loss as a result of the breach.” (Underlining mine)

What is quite apparent from the portions of the judgment reproduced above, is that the learned trial Judge considered only the pleadings and evidence led by the claimant in reaching his decision on the expenses incurred. He was being cautious, since his was not the final Court, by considering the pleadings and evidence led by the appellant in the event that he was overruled on the incompetence of the Statement of Defence.

This approach is in keeping with the advice often given by this Court that where a Court is not the final Court on the subject matter, it should endeavour to proffer an opinion on all the issues submitted to it so that the appellate Court would have the benefit of the Court’s reasoning in the event that it does not agree with the position of the Court on the issue of competence, jurisdiction, locus standi, etc.

The learned trial Judge also stressed that he would have reached the same conclusion with or without the evidence of DW1 and the Statement of Defence.

The lower Court agreed with the finding of the learned trial Judge on the incompetence of the Statement of Defence and the fact that the evidence of DW1 was of no moment.

It follows that what was in issue before the lower Court was whether the finding of the trial Court based on the pleadings and evidence of the appellant alone, was justified.

As rightly, submitted by learned counsel for the respondent, an appellate Court is more concerned with whether the decision reached by the lower Court is correct and not necessarily whether a wrong reason was given for reaching a right decision.

See: Arisa Vs The State (1988) 3 NWLR (Pt. 83) 386; Ojengbede vs Esan & Anor. (2001) 18 NWLR (Pt. 746) 771. If the decision is right, it will be upheld notwithstanding the fact that a wrong reason was given for the decision. It is only where the misdirection has caused the Court to come to a wrong decision that it would be material. See: Oladele & Ors Vs Aromolaran II & Ors. (1996) 6 NWLR (Pt.453) 180.

Having carefully read the judgement of the Court below, it would appear that the appellant’s main quarrel is with the finding that DW1 admitted that the respondent was entitled to the sum of N100 million for the SIM Cards it reactivated and also testified as to what the respondent would have earned if the contract had been carried out as provided in Exhibit A. It is pertinent to note that neither of the Courts relied on the Reply to the Statement of Defence or the further deposition of DWI in support of the said Reply. What they referred to were admission made by DWI in the course of cross examination.

……………………………H……………………………

On the issue of evidence elicited from a witness under cross examination, I do not agree with learned senior counsel for the appellant that because the evidence in Chief of DW1 was found to be of no moment, having been hoisted upon an incompetent statement of defence, the cross examination of the witness should also be jettisoned. The purpose of evidence in chief is to lead evidence in support of a party’s pleadings. The purpose of cross examination is to discredit the witness of one’s opponent and make his testimony unworthy of belief. Cross-examination of a witness may also enhance the case of the party cross-examining by affirming of supporting his position.
His Lordship Onnoghen, JSC (as he then was) provided an illuminating explanation on the treatment of evidence elicited under cross-examination in the case of: Akomolafe Vs Guardian Press Ltd. (2010) 3 NWLR (Pt.1181) 338 @ 351 F-H, as follows:
“On the Issue as to whether both parties called evidence in support of their pleadings, as held by the lower Court, it is settled law that evidence elicited from a party or his witness(es) under cross examination, which goes to support the case of the party cross-examining, constitute evidence in support of the case or defence of that party. If at the end of the day the party cross-examining decides not to call any witness, he can rely on the evidence elicited from cross examination in establishing his case or defence. In such a case, you cannot say that the party calls no evidence in support of his case or defence. One may however say that the party called no witness in support of his case or defence, not evidence, as the evidence elicited from his opponent under cross examination which are in support of his case or defence constitute his evidence in the case.
There is however a catch to this principle. The exception is that evidence so elicited under cross examination must be on facts pleaded by the party concerned for it to be relevant to the determination of the question/issue in controversy between the parties.
I have considered the authority of Gaji Vs Paye (supra) relied upon by learned senior counsel for the respondent and which learned senior counsel for the appellant sought to distinguish on the basis that evidence elicited under cross-examination is only relevant if it arises from issues joined between the parties. In other words, that it is only where both parties have filed pleadings that issues can be joined and the party cross-examining may rely on evidence elicited under cross-examination. With due respect to learned senior counsel, the submission does not reflect the decision of this Court in that case. His Lordship, Niki Tobi, JSC held at page 611 A-B of the report:
“Evidence procured from cross examination is as valid and authentic as evidence procured from examination-in-chief. Both have the potency of relevancy and relevancy is the heart of admission in the law of Evidence. Where evidence is relevant, it is admissible and admitted whether it is procured from examination-in-chief or cross-examination.“(Underlining mine)
For this reason, lawyers are often advised to be wary of questions they put to witnesses under cross-examination, particularly when they do not know the answer the witness would give. This is because the response to a question put to a witness under cross-examination may turn out to sound the death knell for his opponent’s case.
Again, in Adeosun Vs Governor, Ekiti State (2012) 4 NWLR (Pt. 1289) 581 @ 602 A-B, it was held per Onnoghen, JSC (as he then was):

“it is settled law that evidence elicited from the cross-examination of a defence witness, which is In line with the facts pleaded by the plaintiff, forms part of the evidence produced by the plaintiff in support of facts pleaded in the Statement of Claim and can be relied upon in proof of the facts in dispute between the parties.” (Underlining mine)
From the authorities cited above, it is clear that the claimant was fully entitled to rely on evidence elicited from DW1 under cross-examination, which supported the claimant’s pleadings.

……………………………I……………………………

In paragraph 19 of the Statement of Claim, it is averred that “the defendant is indebted to the claimant to the tune of N100,000,000.00” for the SIM Kit activation exercise and other repaid activation bonuses. The appellant’s witness, under cross-examination admitted that the respondent was entitled to N100,000,000.00 for the exercise. It is an admission against interest. In paragraph 21 (c) of the Statement of Claim, the respondent claimed the sum of N500,000,000.00 as general damages for the unwarranted and abrupt cancellation of its orders. Under cross-examination, DW1 admitted that a trade partner could make a commission of up to N500 million depending on the volume of the order placed by the trade partner or its sales. These are not extraneous matters. They are facts pleaded by the claimant. It was entitled to rely on the evidence elicited from DW1, which supported its pleadings.

I have considered the index of evidence compiled by learned senior counsel for the appellant regarding evidence, which in his opinion is based on facts not pleaded. It is important to note that parties are required to plead facts and not evidence.

The Court is also entitled to draw inferences from the evidence before it, which the lower Court did in this case. I am not satisfied that the lower Court relied on extraneous matters in reaching its decision.
This issue is resolved against the appellant.

Issue (b)
Whether the Court of Appeal was right in holding that the document which was admitted in evidence at the trial Court as Exhibit A created an implied, binding and enforceable contract between the appellant and the respondent?

In arguing this issue, learned senior counsel addressed some preliminary points, to wit: that apart from pleading and tendering Exhibit A, the respondent did not lead any evidence in respect of any of its terms; that the respondent is not entitled to rely on evidence extracted under cross-examination, which was not pleaded; that while the Court of Appeal held that the effective date of Exhibit A is presumed to be 5/1/2011, the trial Court held that Exhibit A was undated; that the conclusion reached by the Court of Appeal confirms the fact that Exhibit B does not relate to Exhibit A since Exhibit B refers to the agreement executed between the Trade Partners effective from 1st January 2011.

Learned Senior Counsel submitted that it is trite that parties are free to make their contracts and that the Court does not make contracts for parties. He cited several authorities, includingLarmie Vs D.P.M.S. Ltd. (2005) 18 NWLR (Pt. 958) 438 @ 459 D-E; 467 E & 476-477 H-C; Ogundepo Vs Olumesan (2011) 18 NWLR (Pt. 278) 54 @ 69 E-G; 70 C-D & 72 D-F; and Ibama Vs S.P.D.C (Nig) Ltd. (2005) 17 NWLR (Pt. 954) 364 @ 379 C-E; 379-380 G-F & 384-385 D-B.

He submitted that where a contract is in writing the duty of the Court is to identify (i) whether a valid contract was created; (ii) the terms of the contract as expressed in the contract document; and (iii) to apply those terms in determining the rights of the parties; and in doing so, the Court must apply the clear contents of the contract and not what the partners understood it to mean. He referred to: Odutola Vs Papersack (Nig) Ltd. (2006) 18 NWLR (Pt.1012) 479 @ 492 H & 493-494 G-E, Amizu Vs Nzeribe (1989) 4 NWLR (Pt.118) 755 @ 771 G-N.

He submitted that Exhibit A, being in writing, cannot be varied except by another agreement in writing. He referred to:A.G. Rivers State Vs A.G. Akwa Ibom State (2011) 8 NWLR (Pt.1248) 31 @ 84-85 H-A. He submitted that having placed reliance on Exhibit A as a binding contract, the respondent is not at liberty to pick and choose which of its clauses are binding. He submitted that where a contract is subject to certain terms and conditions, the contract is not formed and not binding until those conditions are fulfilled. He referred to: Best (Nig) Ltd. Vs B.H. Nig. Ltd. (2011) 5 NWLR (Pt. 1239) 95 @ 126 C-D 116-117 G-A; Tsokwa Oil Marketing Co. Vs B.O.N. Ltd (supra); B.P.S. Construction & Emir. Co. Ltd Vs F.C.D.A. (2017) 10 NWLR (Pt. 1572) 1 @ 25 C-F & 48-49 F-E.

He submitted that Exhibit A was only expected to come into effect on the date when the last party signing signs. He submitted that at the time Exhibit A was handed over to the respondent, it had no signature and at that stage was a worthless document. On the proper approach to the interpretation of Exhibits A & B, he submitted that the two lower Courts ought to have adopted the guidelines set out in: BFI Group Vs B.P.E. (2012) 18 NWLR (Pt.1332) 209. He submitted that Exhibit B, which purportedly terminated the agreement between the parties referred to “the subsisting distribution agreement executed between MTN Nigeria Communication Limited and Corporate Communication Limited” effective 1st January 2011 and that Exhibit B did not make any reference to agreement number 381730 (i.e. Exhibit A).

……………………………J……………………………

Learned Senior Counsel submitted that the respondent sought declaratory reliefs and was therefore bound to prove its entitlement to the declaration notwithstanding the exclusion of the appellants pleading and evidence by the trial Court. He cited the cases of: Gonzee (Nig) Ltd. Vs NERDC (2005) 13 NWLR (Pt. 943) 634 @ 648 C-F; Nwokidu Vs Okanu (2010) 3 NWLR (Pt. 1181) 362, and several others in support of this submission. He submitted that Exhibit A does not have a commencement date since the date that would have been its commencement date never occurred. He submitted, relying on Amizu Vs Nzeribe (supra) and Harry Vs Pratt (1965) 1 W.L.R. 1025 @ 1026-1027, that an agreement which does not show its date of execution and the date of its coming into force, is invalid and unenforceable.

Learned Senior Counsel submitted that there was no evidence on record to support the finding of the lower Court that the appellant proceeded to do business with the Respondent on the basis of Exhibit A. He submitted that there is nothing in the record that discloses any benefit conferred on the appellant on the basis of signing Exhibit A by the respondent alone. He referred to BPS Construction & Engr. Co. Ltd. Vs FCDA (supra). He submitted that the lower court was wrong to rely on the case of PTA Electrical Pty Ltd. Vs Perseverance Exploration Pty Ltd. & Anor. (2007) VSCA 310 in holding that there was a binding contract between the parties notwithstanding the non-signature by the appellant, as the facts are distinguishable from this case.

On the whole, he urged the Court to resolve this issue in the appellant’s favour.

In response, learned senior counsel for the respondent submitted that throughout the trial and in the written addresses of counsel, the issue of the validity of Exhibit A was never in issue. The weight to be attached to it only arose from the issue raised suo motu by the trial Court in the course of writing the judgement. He referred to relevant portions of the record at pages 173-176 thereof. Learned counsel submitted that the appellant did not appeal against the various findings made by the learned trial Judge in the portions of the record just referred to. He submitted that the basis for the judgment of the lower Court was that the appellant not only made an offer but indeed drew up the agreement, articulated the terms and dispatched it to the respondent for its signature, without any input from the respondent, and upheld the finding of the trial Court that in the circumstances of this case, since the parties had transacted their business on the basis of Exhibit A, the fact that the appellant did not append its signature was of no moment.

He submitted that the Court below was right in holding that Exhibit A created an implied, binding and enforceable contract between the parties.

He submitted that parties are bound by the cases presented at the trial Court and that the appellant having admitted through its witness, DW1 under cross-examination, that the Distribution Agreement mentioned in Exhibit B was Exhibit A, cannot contend at the lower Court that Exhibit A was not the agreement relied upon. He submitted that the onus was on the appellant to produce a different agreement, which it failed to do. He submitted further that Exhibit A was very clear in two respects: (i) that the agreement supersedes all previous agreements and (ii) that it recognises all previous transactions between the parties. He submitted that the appellant did not challenge the respondent’s reliance on Exhibit A as the subsisting agreement between the parties at the Court below. He submitted that it is being raised before this Court as a new issue, without leave, and urged the Court to discountenance it. He referred to Registered Trustees A.O.N. Vs NAMA(2014) 8 NWLR (Pt.1408) 1 @ 37-38.

In reaction to the contention that the respondent did not lead evidence demonstrating the terms of Exhibit A, he referred to paragraphs 9, 10,11 and 12 of the Respondent’s witness’s deposition at pages 8 and 9 of the record. He submitted that the contents of Exhibit A form part of the Respondent’s pleading in the absence of any statute or rules prohibiting same. He referred to: Boothia Martime Inc. Vs Fareast Merchatile co. Ltd. (2003) FWLR (Pt. 50) 1713; (2001) 9 NWLR (Pt. 719) 572. He noted that Exhibit A was admitted in evidence without objection and both parties relied on it as the contract binding the parties. He submitted that in the circumstance the duty of the lower Court was to construe Exhibits A and B to determine whether Exhibit B rightly terminated Exhibit A.

He maintained that the evidence elicited from the appellant’s witness under cross-examination was duly pleaded by the respondent and therefore there was no need to amend its pleading, as contended for the appellant. He submitted that the authorities of Gagarau Vs Pashiri (supra) and SLEE Transport Ltd. Vs Oluwasegun (supra), cited learned senior counsel are not applicable to the facts of this case.

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He submitted that the authority of Omega Bank (Nig) Plc Vs O.B.C. Ltd (supra), cited on behalf of the appellant, does not advance its case, but rather supports the finding of the lower Court to the effect that the Courts will strive to give effect to the intention of the parties by looking at the intent and not mere form. He maintained that the lower Court was right to hold that Exhibit A was the binding contract between the parties.

He submitted that in making its findings, the lower Court was right to restrict itself to the confines of the record as compiled by the appellant. He submitted that the argument on behalf of the appellant to the effect that Exhibit A had no commencement date, was not the appellant’s case at the trial Court. He also distinguished the facts of Bilante International Lt. Vs N.D.I.C (2011) 15 NWLR (Pt. 1270) 407, cited by learned senior counsel for the appellant from the facts of this case.

On the finding of the lower Court that the appellant continued to do business with the respondent on the basis of Exhibit A, which the appellant’s senior counsel contends is not supported by the record, he submitted that this was a finding made by the trial Court, which the appellant did not appeal against. He contended that nevertheless, the respondent duly pleaded the facts in paragraphs 3, 4, 5 and 10 of its amended Statement of Claim.

On the contention that there was no evidence of consideration passing from the respondent to the appellant, he referred to the operations manual at page 5 of Exhibit A, several clauses in Exhibit A and paragraph 3 (2) of Exhibit G and submitted that unless the respondent maintained the items listed in paragraph 17 of its Statement of Claim, it would not qualify to enter into the agreement of 2011, which is the subject of this appeal. He contended that the listed items were considered before the appellant issued Exhibit A and continued to deal with the respondent until the abrupt termination of the agreement. He submitted that the undisputed debt of N100,000,000.00 pleaded in paragraph 19 of the Statement of Claim automatically became due upon the said termination. He submitted that the respondent was also entitled to damages upon the failure of the appellant to respond to the respondent’s letter of 6th April 2011.

In reply, learned senior counsel for the appellant submitted that as far as previous Trade Partner agreements are concerned, the onus was on the respondent to produce them, as the appellant had nothing to assert since its pleadings had been struck out. He submitted that the Court is not entitled to speculate on what those agreements are. He submitted that the items pleaded in paragraph 17 of the Amended Statement of Claim can at best be construed as past consideration which cannot avail the respondent in respect of Exhibit A.

My Lords, although the parties have made copious submissions in respect of this issue, it must be borne in mind that this Court is not hearing the case afresh. There are concurrent findings of the two lower Courts. The position of this Court has always been to refrain from interfering with concurrent findings of fact unless it is shown that the findings are perverse. A finding is perverse
(i) Where it is not supported by evidence on the record;
(ii) Where it does not reflect a proper exercise of judicial discretion;
(iii) Where evidence has been wrongly admitted or rejected at the trial;

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(iv) Where there has been an erroneous appraisal of facts leading to erroneous conclusion;
(v) Where the finding has been reached as a result of a wrong application of some principles of substantive law or procedure.
See: Ayeni Vs Adesina (2007) ALL FWLR (Pt. 370) 1451 @ 1457-1458; Woluchem Vs Gudi (1981) 5 SC 291 @ 326; Adegbite Vs Ogunfaolu, (1990) 4 NWLR (Pt.146) 578; Itu Vs The State (2016) 5 NWLR (Pt.1506) 443.
It is not the duty of this Court to embark on a fresh appraisal of the evidence merely to reach a different conclusion or to substitute its views for the views of the trial Court or the Court below.
It is also trite that an appeal is a continuation of the original action. The parties are therefore confined to their case as pleaded and presented at the Court of first instance. See: Ngige Vs Obi (2006) 14 NWLR (Pt.999) 1 @ 225; Adegoke Motors Vs Adesanya (1989) 3 NWLR (Pt. 109) 250 @ 266; Alhassan Vs Ishaku (2016) LPELR – 40083 (SC) @ 680.

It is relevant to note that all the exhibits tendered by the respondent in support of its pleadings, including Exhibits A & B, were admitted in evidence without objection from the appellant.

Learned senior counsel for the appellant contended that the respondent failed to lead evidence to demonstrate the terms of Exhibit A. With due respect to the learned silk, he appears to have overlooked the fact that the front loaded deposition on oath of a witness in support of his pleadings, constitutes his evidence in chief in the proceedings. Exhibit A was tendered and admitted without objection. In paragraphs 9, 10, 11, and 12 of the Statement of Claim, the respondent pleaded as follows:
9. Claimant further avers that the rights of the Defendants and the other duties of the Claimant is as provided for under the annexure to the said agreement with registration No. 381730.
10. The claimant was trading and carrying on business within the confines and limit of the content of the agreement with registration No. 381730 yet on the 1817 of March, 2011, the Defendant purportedly terminated the agreement between the Claimant and the Defendant in its letter of 18th March 2011.
11. The said letter though served on the Claimant’s Chief Executive Officer was not in compliance with the terms of agreement No. 381730 and addressed to another company Corporate Communications Limited.

The said letter of 18th March, 2011 is hereby pleaded.
12. The Claimant upon receipt of the letter immediately protested to the Defendant in its letter of 29th March, 2011. Claimant shall during trial rely on the said letter, same is hereby pleaded.

The terms of Exhibit A were therefore pleaded and Exhibit A was before the Court to support the pleading along with the written deposition of the witness. The evidence in chief of CW1, as per his written deposition made on 13/5/2011 and his evidence under cross-examination were summarised by the learned trial Judge at pages 148-158 of the record. It is therefore not correct, to contend that the terms of Exhibit A were not demonstrated before the Court. It must also be recalled that there were no pleadings on behalf of the appellant to counter the pleadings of the respondent. Furthermore, the authenticity of Exhibit A was never challenged by the appellant at the trial Court. The learned trial Judge noted this at page 176 of the record, reproduced earlier in this judgement. It was in the course of writing the judgment that His Lordship, on observing that Exhibit A was not signed by the appellant, adjourned the delivery of the judgment and invited the parties to address him on the evidential weight to be attached to it.

Exhibit A therefore stands as the contract between the parties. The appellant’s witness, DW1, confirmed under cross-examination that Exhibit A was relied upon by the appellant to issue Exhibit B. The learned trial Judge found this to be so when he held at page 176 of the record:
…. the defendant in alleging that its relationship with the claimant has been terminated relied on Exhibit A. See the letter of termination of the agreement sent to the claimant by the defendant Exhibit B. In this regards, in so far as the claimant and the defendant transacted their business in compliance with the terms of Exhibit A and the defendant relied on Exhibit A in terminating its relationship with the claimant, the fact that the defendant did not sign Exhibit A is of no moment. This is because equity looks at that which ought to be done.”

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The appellant did not appeal the finding of the trial Court that Exhibit B was issued to terminate Exhibit A. The appellant did not deny terminating its agreement with the respondent nor did it tender any other agreement to show that it was not Exhibit A that was terminated by Exhibit B. It did so by the written deposition of CW1 adopted and relied upon at the trial and the exhibits tendered. The law is that a party seeking declaratory reliefs must succeed on the strength of his own case and not on the weakness of the defence, if any. He has an obligation to prove his claims to the satisfaction of the Court notwithstanding any admission made by the defendant. This is because the grant of a declaratory relief is discretionary. See:Okoye Vs Nwankwo (2014) LPELR – 23172 (SC) @ 71-72 D-B (2014 15 NWLR (Pt.1429) 93, Kwajaffa & Ors. Vs B.O.N. Ltd. (2004) 13 NWLR (Pt 889) 146; Emenike Vs P.D.P (2012) 12 NWLR (Pt.1315).

The respondent had done what was required by tendering evidence in support of its claims. It had pleaded and led evidence to prove that Exhibit A was terminated by Exhibit B. The admission of this fact by the appellant’s witness bolstered the respondent’s claim. It was entitled to rely on the admission as additional support for its case.

I am of the considered view that as the authenticity of Exhibit A was never in issue before the trial Court, it cannot be made an issue before this Court.

The main reason why the appellant challenged the findings of the two Courts with regard to Exhibit A, is that it was one of the terms of agreement that it would take effect from the date the last person signs and that since it did not sign the document after it was signed by the respondent, the document was inadmissible and could not be relied upon as a valid contract between the parties. The reasoning of the learned trial Judge was that Exhibit A was prepared by the appellant without any input from the respondent. It was sent to the respondent for its signature signifying its acceptance. The respondent complied. The Court held that the appellant, for reasons best known to it, did not sign the document but continued carrying on business with the respondent in accordance with its terms. It held that the appellant would not be allowed to take advantage of its own wrong doing by deliberately refusing to sign the document.
The Court below dealt with this issue extensively at pages 323-333 of the record and agreed with the Court below that in the circumstances of this case, the appellant ought not to be allowed to take advantage of its wrong doing by deliberately refusing to sign Exhibit A.
The question to be asked is whether these findings are perverse? I think not. Both the Court below and the trial Court reiterated severally that the appellant did not challenge the authenticity of Exhibit A and no questions were put to CW1 under cross-examination to challenge same.
I am of the considered view that what is critical in this case, as held by the learned trial Judge, is that Exhibit A was prepared solely by the appellant. It was forwarded to the respondent for its signature, signifying its assent to the terms stated therein. The respondent duly signed through its Chief executive Officer and returned it to the appellant. The appellant did not sign and did not give any indication to the respondent that there was any change to their existing position. The last paragraph of Exhibit B states:
“further note that all commissions and discounts, if any due to you under the agreement shall be computed and paid in due course.”
Contrary to the contention of learned senior counsel for the appellant, the portion of Exhibit B referred to supports the finding of the two lower Courts that the appellant continued to do business with the respondent despite not signing Exhibit A. In paragraphs 3, 4, 5 and 10 of the statement of claim, the respondent pleaded as follows:
“3. The Claimant trades in and particularly partner with the Defendant in the Defendant’s trade and business operations in Nigeria.
4. The Defendant is a Communication Limited Liability company registered in Nigeria with Corporate office in Lagos and other offices spread all over Nigeria including Port Harcourt Rivers State and carries out its transactions through its Trade and Sub Trade Partners.
5. The Claimant’s business with the Defendant started sometime in 2005, wherein the Claimant by its various agreements with the Defendant is one of the Defendant’s Trade Partners and traded with the Defendant in line with the said various agreements.
10. The Claimant was trading and carrying on business within the confines and limit of the content of the agreement with registration No. 381730 yet on the 18th of March, 2011, the Defendant purportedly terminated the agreement between the Claimant and the Defendant in its letter of 18th March, 2011. (Underlining mine)

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These averments and the evidence in respect thereof in the written deposition of CW1 stand unchallenged and uncontradicted.
Section 169 of the Evidence Act provides:
“When one person has either by virtue of an existing Court judgement, deed or agreement or by his declaration, act or omission caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representatives in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing.”
This is the purport of the foreign authorities relied upon by the lower Court in the Australian cases of PRA Electrical Pty Ltd. Vs Perseverance Exploration Pty Ltd. & Anor. (2007) VSCA (Victorian Supreme Court of Appeal) 310 and Wayne Edward John Street Vs Fantastic Holdings Ltd. 2011 NSWSC (New South Wales Supreme Court) 1097. Although of persuasive authority only, they were appropriately relied upon in this case.
In Street Vs Fantastic Holdings Ltd. (supra), the respondent sought to enforce an agreement for a lease which it had signed and returned to the landlord even though the landlord had not signed. The respondent’s lease was coming to an end. There were negotiations in respect of the renewal. All the essential terms of the agreement had been agreed upon. The landlord sent the formal lease agreement containing all the terms to the tenant to sign, which it did. A second lease agreement had to be sent because the earlier one was misplaced. The respondent signed and returned it. Even though the landlord did not sign, the tenant continued to occupy the premises after the expiration of the previous tenancy and paid rent in accordance with the new lease agreement. The landlord sought to rely on the fact that the agreement was only intended to come into force after final execution by both parties. The Court held, inter alia :
” ….having completed the negotiation stage, the parties were of “one mind” as to the terms of the lease with nothing remaining outstanding other than formal execution. In sending the tenant the lease document, the landlord was making a final offer in a form capable of acceptance, leaving nothing further for negotiation.

Therefore, signing the agreement would, objectively be regarded as a mere formality.”
In the instant case, the offer was being made by the appellant. The respondent accepted the offer by appending its signature thereto. At that stage the negotiation aspect of the contract was complete, particularly as by signing, the respondent had agreed to all the terms and conditions therein.
The recent decision of this Court in BPS Construction and Enqineerinq Co. Ltd. Vs F.C.D.A (2017) 10 NWLR (Pt. 1572), relied upon by learned counsel for the appellant, is distinguishable from the facts of this case as the subject matter involved a Memorandum of Understanding wherein the parties agreed that it was subject to the signing of formal agreement on terms to be mutually agreed between the parties. In others words, the MOU represented a preliminary understanding between the parties with the intention of subsequently entering into a formal contract.
In the instant case, as held in Alfotrin Ltd. Vs A.G. Federation & ors. (1996) 9 NWLR (Pt.475) 634 @ 656 H, there was a concluded bargain which had settled all the essential conditions necessary to be settled and left no vital term or condition unsettled. As observed earlier, the appellant did not deny the fact that it continued trading and carrying on business with the respondent in accordance with Exhibit A.
I agree entirely with the two lower Courts, that the appellant could not be allowed, by deliberately withholding its signature, to take advantage of its wrongdoing and use it as a weapon against the respondent. See: Adedeji Vs N.B.N Ltd. (1989) 1 NWLR (Pt. 96) 212 @ 226-227 E-A, where it was held, inter alia that it is morally despicable for a person who has benefited from an agreement to turn around and say that the agreement is null and void, or unenforceable, as contended in this case.
I am not persuaded that the concurrent findings of the two lower Courts in this regard are perverse. Lower Court rightly affirmed the finding of the trial Court that Exhibit A was a binding contract between the parties and that in issuing Exhibit B it failed to comply with clause 16.2 of Exhibit A, which required it to give the respondent 60 days written notice before terminating the agreement. This issue is accordingly resolved against the appellant.

ISSUE (C)
Whether the affirmation of the award of general damages against the appellant and the awards of costs made against the appellant is justified?

Learned Senior Counsel for the appellant submitted that the evidence on record does not support the basis for granting the reliefs by the lower Court. He contended that the losses allegedly suffered by the respondent were not shown to have arisen from Exhibit A. He contended further that there was no pleading or evidence led to show how much was expended on SIM Kit reactivation as distinct from other repaid bonuses pleaded in paragraph 19 of the Statement of Claim. He submitted that the alleged admission by DW1 that the respondent was entitled to N100 million for SIM Kit reactivation could not be relied upon, as the evidence of DW1 was expunged and there was no statement of defence before the Court.

He submitted further that by paragraph 13 of its Statement of Claim, the respondent pleaded that when it placed an order for the appellant’s products on 4th April 2011, the appellant rejected it on account of the termination letter, Exhibit B. He argued that the respondent was already aware of the termination before it placed the order and that it failed to plead the specific items ordered their quantity and value. He submitted that the two lower Courts relied on speculation and extraneous matters in making the award. He submitted that notwithstanding the concurrent findings, this Court would interfere with the award if the record reveals that they are not justified. He referred to: U.B.N. Plc Vs Ajabule (2011) 18 NWLR (Pt.1278) 152 @ 181 D-F; 178 B-D, Merchantile Bank Vs Adalma (1990) 5 NWLR (Pt.153) 747 @ 767; Shell B. P. Co. Ltd. Vs Jammal Engr. (Nig) Ltd. (1974) ALL NLR (Vol.1) 489.

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In response, learned senior counsel for the respondent submitted that in making the awards, the trial Court relied on clause 5 and several sub-clauses of Exhibit A (page 194 lines 19-21 of the records), Exhibit G2 at page 196 lines 7-10, the undisputed evidence of CW1 and the long term business relationship between the parties. He submitted that the Court considered (i) the amount of money the respondent was entitled to for SIM Card activation; (ii) the amount of money it would have earned if the order placed by the respondent for the appellant’s products had been honoured; and (iii) the products supplied and what the respondent would have earned if the contract had been carried out as provided in Exhibit A. He submitted that the lower Court was right in affirming the awards.

He submitted that the findings of the lower Court and the trial Court were in line with the respondent’s pleading in paragraphs 5, 6, 9, 10, 13,14,15,16, 17,18,19,20, 21 and 21 of the statement of claim, which stands unchallenged, and CW1’s statement on oath at pages 8-11 of the record. He reiterated his submission made under issue 1 in respect of the evidence elicited from DW1 under cross-examination. He also submitted that the claim for damages was not challenged by way of cross-examination nor by the statement of defence, since the statement of defence was struck out.

He submitted that where a claim is unchallenged by way of cross-examination, only minimal proof would be required to prove it. He referred to Amadi Vs Nwosu (1992) 5 NWLR (Pt.241) 275; NItel Ltd. Vs Ikpi (2007) 8 NWLR (Pt. 1035) 96 @ 109-110. He reiterated the fact that DW1 admitted the respondent’s entitlement to the damages claimed under cross-examination. He submitted that the onus was on the appellant to challenge the evidence of the respondent by way of vigorous cross-examination. He maintained that the decision of the lower Court was based on relevant facts, which were undisputed. He submitted that facts admitted require no further proof. He relied on Section 112 (2) of the Evidence Act and submitted further that an admission by a party against his interest is admissible against him. He relied on: Kamalu Vs Umunna (1997) 5 NWLR (Pt. 505) 321 @ 337. He urged the Court to resolve the issue in the respondent’s favour.

The respondent claim in paragraph 21 (c) of its statement of claim is as follows:
“N500,000,000 as general damages for the unwarranted and abrupt cancellation of claimant’s orders as a result of the wrongful, invalid or oppressive conduct of the Defendant against the claimant.”
The object of an award of general damages is to compensate the plaintiff, as far as money can do so, for the damages, loss or injury he has suffered. The guiding principle is restitution in integrum.

It envisages that a party which has been damnified by the act which is called in question must be put in the position he would have been if he had not suffered the wrong which he is now being compensated for. In other words, the loss inevitably and unavoidably flowing from the breach. See: Chief S.I. Agu Vs General Oil Ltd. (2015) LPELR -24613 (SC) @ 31-32 G-B; NEPA Vs R.O. Alli & Anor. (1992) 10 SCNJ 34; Ijebu-Ode L.G. Vs Adedeji Balogun & Co., Ltd (1991) 1 NWLR (Pt.166) 136.
In Ijebu-Ode Vs L.G. Adedeji Balogun & Co. Ltd. (supra), it was held, per Karibi-Whyte, JSC at 158 F-G:
“In cases of breach of contract, assessment of damages is calculated on the loss sustained by the injured party which loss was either in the contemplation of the contract or is an unavoidable consequence of the breach.”
See also: Shell B.P. Vs Jammal Engineering Ltd. (1974) 4 SC 33, 1 ALL NLR (Pt.1) 542.
It is also trite that an award of damages is within the discretionary powers of the Court. The exercise of such discretion must however be based on the evidence before the Court. See: British Airways Vs Atoyebi (2014) 13 NWLR (Pt. 1424) 253; Hamza Vs Kure (2010) 10 NWLR (Pt. 1203) 630; Okoko Vs Dakolo (2006) 14 NWLR (Pt. 1000) 401.

The Court below found and held, in affirmation the judgment of the lower Court, that the learned trial Judge took into consideration the fact that the respondent pleaded and testified that it would have earned N100 million from the SIM Kit activation exercise and from other repaid activation bonuses if the appellant had not abruptly terminated the contract and that His Lordship also took into consideration all the immediate losses which were reasonably within the contemplation of the parties at the time of the contract.

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The learned trial Judge considered clause 5 Sub-clauses 5.1.1, 5.1.4, 5.1.5, 5.1.8, 5.1.9, 5.1.10, 5.1.13 5.1.16, 5.1.29, 5.1.32 and 5.1.33 of Exhibit A, which the respondent was required to comply with and which includes the provision of distribution outlets, the provision of all necessary human and other resources required to effectively, sell, supply and or distribute the appellant’s products and services; to make investments in structural facilities, business tools and system requirements which include (a) computers with internet access, (b) credit/debit card scanners for electronic payment;

(c) printers for production of sales orders, etc. These requirements are no doubt capital intensive.

His Lordship noted that these items and those set out in Exhibit G2 were required to be supplied/complied with and had to be in place for the effective running of the appellant’s business. The respondent pleaded the expenses incurred in paragraph 18 of its statement of claim and supported it with the witness statement of CW1, which was his evidence in chief. The learned trial Judge observed that CW1 was not cross-examined to establish that the respondent did not comply with clause 5 and in particular the sub-clauses referred to.
The respondent’s claim for damages was uncontradicted. Where the claimant pleads and gives evidence in support of his claim for damages and his evidence is uncontradicted, the trial Court is bound to accept the evidence unless there is something inherent in the evidence which disproves it. See: Ijebu-Ode L.G. Vs Adedeji Balogun & Co. Ltd. (supra) at 159 A-B; 165 C-D; Incar Nig. Ltd. Vs Adegboye (1985) 2 NWLR (Pt. 8) 453 @ 461-462 B-C.

The Court below found no reason to disturb the exercise of discretion by the learned trial Judge. I am equally not persuaded to do so. The respondent’s evidence on the claim for general damages was uncontradicted. Indeed the appellant’s witness admitted the respondent’s entitlement to N100 million for SIM Kit activation, thereby confirming the respondent’s natural loss arising from breach of the contract between them.
This issue is accordingly resolved against the appellant.

In conclusion, I find no merit in the appeal. It is hereby dismissed. The judgement of the lower Court is affirmed. I make no order for costs.

IBRAHIM TANKO MUHAMMAD, Ag C.J.N.: I have had the opportunity of reading before now, a draft copy of the judgment just delivered by my learned brother, Kekere-Ekun, JSC. I agree with his reasoning and conclusion that the appeal lacks merit and should be dismissed. I too dismiss the appeal.

MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Kudirat M. O. Kekere-Ekun, JSC and to underscore the support in the reasonings from which the decision came about, I shall make some remarks.

This appeal is against the judgment of the Court of Appeal, Port Harcourt Division or Court below, or Lower Court, Coram: M. L. Garba, Orji – Abadua, B. G. Sanga JJCA dated 21st July, 2014 in which the Court below dismissed the appeal and affirmed the judgment of the trial Court Per S. C. Amadi J. which judgment was in favour of the respondent.

On the 19th day of December, 2018 date of hearing, learned Senior Advocate, D. C. Denwigwe SAN adopted the Amended brief of argument filed on 19/1/2018 and deemed filed on 28/11/18 and the reply brief filed on 19/3/18 and deemed filed on 28/11/18 and List of Additional Authorities filed on 19/12/18. The appellant formulated four issues for determination which are as follows:-
(a) Whether the Court of Appeal was right when it acted on extraneous matters including the evidence of the DW1 at the trial in reaching its decision to affirm the judgment of the trial Court? (Grounds 6 and 11).
(b) Whether the Court of Appeal was right in holding that the document which was admitted in evidence at the trial as Exhibit “A” created an implied, binding and enforceable contract between the appellant and the respondent? (Grounds 1, 5, 7, 8, 9 and 10).

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(c) Whether the affirmation of the award of general damage made to the respondent against the appellant and the awards of costs made against the appellant is justified? (Grounds 2, 3 and 4).
(d) Whether the learned Justices of the Court of Appeal was right when they held that the appeal lacks merit? (Ground 12).

Learned counsel for the respondent, Nyengierefaka Joshua Esq., adopted the brief settled by D. O. Ezaga SAN and filed on 2/3/18. He adopted the issues as nominated by the appellant.
I shall make use of the issues as identified by the two sides and together.
(1) Whether the Court of Appeal acted on extraneous matters in reaching its decision affirming the decision of the trial Court? (Grounds 6 and 11).
(2) Whether the Court of Appeal was right in holding that the document which was admitted in evidence without objection as Exhibit “A” by the trial Court created an implied, binding and enforceable contract between the appellant and the respondent? (Grounds 1, 5, 7, 8, 9 and 10).
(3) Whether upon the finding that the appellant’s termination of Exhibit “A” via Exhibit “B” was wrongful, the Court of Appeal rightly affirm the award of general damages and cost against the appellant in favour of the respondent? (Grounds 2, 3 and 4).
(4) Whether the learned Justices of the Court of Appeal was right when they held that the appeal lacks merit? (Ground 2).

D. C. Denwigwe SAN, for the appellant contended that neither the statement of Defence, the evidence of the DWI, the Claimant’s Reply to the Statement of Defence, the Claimant’s Further deposition on oath nor evidence extracted from the DW1Â outside the statement of claim are admissible for any valid use in the judgment of the trial Court in this case which the Court below should not have affirmed. He cited U.T.B. v Ozoemena (2007) 3 NWLR (Pt.1033) 448 at 471 & 491, Onojobi v Olanipekun (1985) 2 SC 19; Ike v Ugboaja (1993) 6 NWLR (Pt.201) 539; A. G. Leventis (Nig.) Plc v Akpu (2007) 17 NWLR (Pt.1063) 416 at 440; Military Governor, Lagos State v Adeyiga (2012) 5 NWLR (pt. 1293) 291 at 319-320.

He further submitted that the respondent cannot use the evidence extracted from cross-examination during the proceedings on any matter not pleaded but which if accepted could decide any issue in the dispute between parties without first amending the pleadings to plead the facts on which such evidence is led. He referred to Gagarau v Pashiri (2006) 1 NWLR (Pt. 962) 521 at 540; Slee Transport Ltd v Oluwasegun (1973) 3 ECSLR (Pt.11) 1176.

That when a contract between the parties is said to be in writing as the respondent asserts, the duty of the Court is limited to interpreting that contract document holistically so as to identify whether a valid contract was created, the terms of the contract as expressed in the contract documents and to apply those terms in determining the rights of the parties. That the said document, Exhibit A, subject matter of this appeal Is in writing and cannot be varied except by another agreement also in writing. He cited Tsokwa Oil Marketing Co., v B.O.N. Ltd (2002) 11 NWLR (Pt.777) 163 at 196; Akpan v Otong (1996) 12 SCNJ 213 at 225; Ajagbe v Idowu (2011) 17 NWLR (Pt.1276) 422 at 4434; Odutola v Paparsack (Nig.) Ltd (2006) 18 NWLR (Pt.1012) 470 at 492, 493-494; Amizu v Nzeribe (1986) 4 NWLR (Pt.118) 755 at 771; A. G. Rivers State v A. G. Akwa Ibom State (2011) 8 NWLR (Pt. 1248) 31 at 84-85 etc.

Learned Senior Counsel for the appellant contended that the contract/agreement which Exhibit “B” terminated is expressly set out on Exhibit “B”. He relied on Gonzee (Nig.) Ltd v NERDC (2005) 13 NWLR (Pt. 943) 634 at 648; Nwokidu v Okanu (2010) 3 NWLR (Pt.1181) 362; Fabunmi v Agbe (1985) 1 NWLR (Pt.2) 299, Bello v Eweka (1981) 1 SC 101 etc.

For the appellant, it was advanced that the two Courts below relied on extraneous and unpleaded matter to grant reliefs to the respondent and so calling for the intervention of the Supreme Court on the concurrent award made by the two Courts below as they were not justified by the facts and circumstances. He cited U.B.N. Plc v Ajabule (2011) 18 NWLR (Pt. 1278) 152 at 181; Merchantile Bank v Adalma (1999) 5 NWLR (Pt.153) 747 at 767; Shell B.P. Co. Ltd v Jammal Engr. Ltd. (1974) All NLR (Vol.1) 489.

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In response, learned counsel for the respondent submitted that at the trial the appellant and respondent had no dispute as far as the agreement Exhibit A was concerned and so the decision by the trial Court on whether Exhibit A was signed by the respondent without the signature of the appellant had value which issue it resolved in favour of the respondent and the specific findings of that Court not appealed against at the lower Court are deemed accepted as correct and cannot now be raised at this level as it remained valid and binding on all the parties for all times.
He cited Anayanwu v Ogunewe (2014) All FWLR (Pt. 738) 1012 at 1037; Nwankwo v Yar`Adua (2010) All FWLR (Pt. 534) 1; L.A. & A.C. Ltd v U.B.A. Plc (2014) All FWLR (Pt. 739) 1080 at 1094.

That it is not correct that answers elicited under cross-examination by the respondent become respondent’s evidence and are valid. He cited Adeosun v Government, Ekiti State (2012) 4 NWLR (Pt.1291) 581 at 600; Gaji v Paye (2003) 8 NWLR (Pt. 823) 583 at 611; Mobil Oil (Nigeria) Ltd. v National Oil & Chemical Marketing Co. Ltd (2000) 9 NWLR (Pt. 671) 44 at 52.

Learned counsel for the respondent contended that the issues raised by the appellant at the Court of Appeal only bordered on the validity of Exhibit A and the award of damages to the tune of N250,000,000.00 together with cost and these are all that are binding on the parties on appeal at this stage and so the appellant cannot bring its issues outside those attended to at the Court below. He cited Udokpo v Archibong (2013) All FWLR (Pt. 659) 1144 at 1169, Adegoke Motors Ltd v Adesanya (1989) 5 SC 113, Akpene v Barclays Bank (1977) 1 SC 57; Osakwe v Governor of Imo State (1991) 5 NWLR (Pt.191) 318 at 333-334. Anekwe v Nweke (2014) All FWLR (Pt.739) 1154 at 1175.

That the Lower Courts’ decisions were based on relevant facts before them which were uncontradicted by the appellant and so being facts admitted needed no further proof by virtue of Section 112 (2) of the Evidence Act and an admission by a party against his interest is admissible against him. That the sound reasoning of facts having been concurrently postulated and accepted by the two lower Courts, the Supreme Court cannot disturb as there is no special reason to do so. He cited Kamalu v Umunna (1997) 5 NWLR (Pt.505) 321 at 337; Ibuluya v Dikibo (2010) 18 NWLR (Pt.1225) 627 at 651.

That stance of the appellant briefly is that the two Courts below relied on and applied facts not pleaded in reaching their decisions on the status of Exhibit “A” as a binding contract agreement and the same situation of unpleaded facts in making the awards complained of.

Countering the position of the appellant, the respondent is of the view that all facts and evidence relied upon by the two Courts were uncontradicted and not denied as the evaluation and conclusions by the two Courts were on the merit of what was before them.

It needs be brought out that at the trial the parties had no dispute as far as the Agreement of 2011, Exhibit “A” was concerned as what was being contested at that stage of trial was whether Exhibit ‘A’ was properly terminated. It turned out that in the course of entering its judgment, that Court of first instance brought up the issue suo motu as to whether Exhibit ‘A’ signed by the respondent without the signature of the appellant had value and answered the question in favour of the respondent that it had value and that became the crux of the appeal of the appellant at the Court of Appeal. At that appellate level, the respondent drew the Court below’s attention to the specific findings of the trial Court not appealed against by the appellant, which are as follows:-

“DW1 under cross-examination admitted that the agreement the appellant relied upon to issue Exhibit “B” was Exhibit “A”. I am of the firm view that the evidence of DW1 supports the Claimant’s case. This is because DW1 stated that Exhibit “A” was duly terminated in accordance with Clause 16.2 of Exhibit “A”. In effect therefore, in terminating Exhibit “A”, the defendant relied on Clause 16.2 thereof.”
The excerpts above of the trial Court findings and conclusions were not appealed against at the lower Court which throws up the settled law that where there is no appeal against specific findings of fact made at the trial Court, those findings remain for all time unassailable and deemed accepted as representing the true state of affairs. It therefore becomes futile trying to smuggle those same issues at another level of appeal since they have in effect been conceded by the party against whom they were decided and remains valid and binding on all parties forever. I rely on Anyanwu v Ogunewe (2014) All FWLR (Pt. 738) 1012 at 1037; Nwankwo v Yar’Adua (2010) All FWLR (Pt.534) 1; L.A. & A.C. Ltd v U.B.A. Plc (2014) All FWLR (Pt.739) 1080 at 1094.

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The appellant had urged the Court to expunge the facts admitted by the witness of the appellant under cross-examination as they were not pleaded. On this point, I agree with learned counsel for the respondent that that argument just cannot fly as cross-examination answers are not usually pleaded since a party cannot be in the know or anticipate the mind of the other as to predicting what would be asked in cross-examination therefore if as happened in this case the amount claimed by the respondent and admitted by the appellant’s witness under cross-examination tallied with each other, there is no need for further pleading and it is to the advantage of the respondent and nothing stops the Court utilising it as it is as valid as examination in chief. See Adeosun v Governor of Ekiti State (2012) 4 NWLR (Pt.1291) 581 at 600; Gaji v Paye (2003) 8 NWLR (Pt.823) 583 at 611; Mobil Oil (Nig.) Ltd v National Oil & Chemical Marketing Co Ltd (2000) a NWLR (Pt.671) 44 at 52.

The grouse of the appellant as I can see, seems based on the reasons on which the appeal Court came to its decision as the appellant is not happy with the Court’s utilization of the evidence of DW1 in justifying the award made against the appellant.
This makes one remind himself that what an appellate Court is concerned with should at all times be the rightness or wrongness of the decision and not necessarily the reasons for the conclusion or decision. This is so because, once the decision is right it would be upheld at the higher level irrespective of the fact that a wrong reason was given for that decision. See Dickson Arisa v The State (1988) 7 SCNJ 760 at 84; Akpene v Barclays Bank (1977) 1 SC 57; Osakwe v Governor of Imo State (1991) 5 NWLR (Pt.191) 318 at 333-334; Anekwe v Nweke (2014) All FWLR (Pt.739) 1154 at 1175; Amadi v Nwosu (1992) 5 NWLR (Pt. 241) 275;Nitel Ltd v Ikpi (2007) 8 NWLR (Pt.1035) 96 at 109 -110.
Overall, there is no difficulty in agreeing with the decision of the Court below which affirmed the decision of the High Court with regard to the contractual relationship between the parties for the following reasons:-
(1) There is consideration;
(2) The fundamental terms are certain;
(3) There is acceptance by due signature of respondent;

(4) Intention to create legal relationship and offer based on the sending of the agreement for respondent’s signature by the appellant who drafted same;
(5) The appellant and respondent started adhering to the terms of Exhibit A;
(6) The appellant used the services under Exhibit “A” by the fact that the services rendered previous agreements were recognised by Exhibit “A” when it stated in Clause 34 (b) that:
“Notwithstanding Clause 34 (a) which terminated the previous agreement, the Trade Partner shall still be entitled to all commissions and discounts earned prior to the termination referred to in 34 (a).”
The above were concurrently accepted by the two Courts below and no reason has been brought before this Court in persuasion to disturb those findings and a long line of cases is on record that when such a situation occurs, this Court as any other appellate Court should not disturb such findings. See Ibuluya v Dikibo (2010) 18 NWLR (Pt.1225) 627 at 650 and 651.

In the final analysis, this appeal lacks merit and in line with the well rendered lead ,judgment I too dismiss it as I abide by the consequential orders made.

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AMIRU SANUSI, J.S.C.: I had the privilege of perusing in advance the well-researched judgment prepared by my learned brother Kekere-Ekun,JSC just delivered. His Lordship had adequately and painstakingly addressed all the issues canvassed by learned counsel to the parties in this appeal.

While agreeing with the reason and conclusion reached in his lead judgment that this appeal lacks substance, I shall also dismiss the appeal for want of merit. I decline to make any order on costs.

EJEMBI EKO, J.S.C.: I read in draft the judgment just delivered in this appeal by my learned brother, K.M.O. Kekere-Ekun, JSC. I agree that there is not substance in this appeal.

The agreement, Exhibit A, allegedly terminated by the Appellant by the letter Exhibit B, was drafted by the Appellant. Exhibit A was drafted or drawn by the Appellant, wherein the Appellant articulated the terms of the agreement. Exhibit A was then sent to the Respondent for its signature. The Respondent did “execute” the agreement by signing the same and then returned it to the Appellant to execute.

The Appellant failed to append its signature. Exhibit A has no commencement date. There is a clause therein that the agreement took its effect from the date the Appellant appended its signature thereto.
The totality of the evidence, including the admission against interest made by the DW.1, suggested that the parties transacted business on the basis of Exhibit A. Exhibit B, which purportedly invoked the termination clause in Exhibit A, to terminate Exhibit A clearly and strongly suggest that the Appellant, like the Respondent, regarded Exhibit A as a binding contract. Exhibit A was tendered and admitted in Evidence without objection.
Though not mutually executed Exhibit A was regarded by the parties as their binding contract. Equity acts in personam and therefore takes as done that which ought to be done, if from the conduct of the parties such inference can be drawn. In the instant case, such facts abound on which the two Courts below concurrently found that the parties intended to be bound by Exhibit A and that Exhibit A would be the basis of their mutual transaction, whether or not the document was formally executed. Again, Equity acting in personam would look at the intent of the parties and the substance and not at the form. In the instant case, insistence on compliance with all formalities of executing a written agreement will be oppressive to the Respondent. The Appellant, in the Court of Justice, will not be allowed to take advantage of the Respondent on his own iniquity by his ingenious booby trap by which he deliberately withheld his signature while at the same time it made the Respondent go with the impression that the relationship is governed or regulated by Exhibit A. Section 169 of the Evidence Act, 2011, which codified the principle of estoppel by conduct, will not countenance the present posture of the Appellant and allow it resile out of Exhibit A. For clarity Section 169 of the Evidence Act is hereinbelow reproduced:
169. When one person has, either by virtue of an existing Court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused 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 proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing.

The facts on which the evidence of the CW.1 was predicated were not traversed. His deposition on oath was also not traversed. These indubitable facts, supported by the evidence of DW.1 under cross-examination, amply support the decision of trial Court affirmed by the lower Court. The damages awarded are supported by available legal evidence. The concurrent findings of fact, as they relate to the award of damages, are unassailable.

I find no basis to disturb the judgment of the lower Court. Accordingly, I join my learned brother K.M.O. Kekere-Ekun, JSC, and enter judgment dismissing the appeal in its entirety in favour of the Respondent.
Appeal dismissed.