In other cases where the employment is governed by the agreement of the parties, removal by way of termination of appointment or dismissal must be in accordance with the terms agreed upon. Failure to comply with the terms renders the termination wrongful but not null and void. The only remedy available to an employee in an ordinary master and servant relationship for wrongful termination of employment is a claim for damages. The rationale being that a servant, though wiling, cannot be foisted upon an unwilling master. See: U.B.N. Ltd v. Ogboh (1995) 2 NWLR (Pt. 380) 647 @ 664; Ibama v. S.P.D.C (Nig.) Ltd. (2005) 17 NWLR (Pt. 954) 364; Olanrewaju v. Afribank Nig. Plc. (supra).
However, in other cases governed only by agreement of the parties and not by statute, removal by termination or dismissal would be in the form agreed to. Any other form of dismissal or termination connotes only wrongful termination or dismissal. It therefore does not warrant a declaration of such dismissal as void. Where this happens, the only remedy open to the plaintiff is a claim for damages for that wrongful dismissal and not reinstatement.
In the event of any dispute as to what the plain and ordinary words of a written agreement mean, the law as enacted in Section 132(2) of the Evidence Act 1990 (for now Section 129(2) of the Evidence Act, 2011) is that evidence may not be given to show that common words, the meaning of which is plain, and which do not appear from the context to have been used in a peculiar sense, were infact so used.
The situation presenting as it is, that of an inchoate agreement which can be properly described as an Intent for a future reaching of an agreement, there is no basis on which specific performance can be ordered. For emphasis the MOU was just a process in the journey to a contract and so the contract had not happened and so no specific performance can be ordered and the issue of a quantum meruit of damages cannot be ordered for a non existent contract not to talk of a breach thereof. See Ezenwa v. Oko (2008) 3 NWLR (Pt. 1075) 610 at 628;Savannah Bank of Nigeria Plc v. Oladipo Opanubi (2004) 1 NWLR (Pt. 896) 437 at 453-454.
It is trite law that agreement for variation of an existing contract must possess the basic characteristics of a valid contract which are known to be offer, acceptance and consideration. See Idufueko v. PFizer Products Ltd and Anor (2014) LPELR 22999 (SC); Unity Bank Plc v Olubiyi(2015) NWLR (pt 7452) 203 at 242.
NIGERIA PORTS AUTHORITY V. AMINU IBRAHIM AND COMPANY &
The most important and pungnant word for my purpose is "understood". Parties to an agreement may mutually but wrongly come to an understanding as to the legal content of it. That notwithstanding, a court of law can only interpret the agreement strictly in its legal content and arrive at a conclusion on the law and the law alone in respect of it. A court of law cannot construe the agreement to convey the meaning "as understood" by the parties, if it is different from the real legal meaning of the agreement. While there are instances where the principles of equity may assist a party wronged by a strict application of the construction of the agreement, in the application of the doctrine of estoppel, this is not one of such cases.
While oral agreement has the legal capacity to re-order or change the contents of an earlier written agreement, to satisfy the basic requirements of an agreement, the party alleging such agreement must prove it. See sections 135, 136 and 139 of the Evidence Act. See also Broadline Ent. Ltd. v. Monterey Maritime Corp. (1995) 9 NWLR (Pt.417) 1; Chime v. Chime (1995) 6 NWLR (Pt.404) 734; Usman v. Ram (2001) 8 NWLR (Pt.715) 449; Attorney-General of Lagos State v. Purification Tech. (Nig.) Ltd. (2003) 16 NWLR (Pt.845) 1; Archibong v. Ita (2004) 2 NWLR (Pt.858) 590.
It is the generally accepted practice that tenancy agreement is made in writing. In order to play safe, I do not want to say that it is invariably made in writing; but I can say that it is mostly made in writing. Accordingly, where a party alleges the existence of an oral agreement, which is a unique method and procedure, he must give credible evidence as to the modalities of such agreement. In other words, a party alleging an oral agreement is duty bound to prove such an agreement to the hilt.
The effect of the foregoing is that though the lower Court did not consider the point raised by appellant’s counsel touching on the issue of expiry of time within which resort is to be made to arbitration, the failure did not occasion a miscarriage of justice. See BPS Construction and Engineering Co. Ltd v. F. C. D. A. (2017) 10 NWLR (1572) 1, 14, SCC (Nig.) Ltd v. Anya (2013) ALL FWLR (Pt. 703) 2047, 2062 and Nigerian Communications Commission v.
Motophone Ltd (2019) 14 NWLR (1691) 1, 37 where Aba-Aji, JSC, opined that: “Moreover, even failure to consider all issues submitted before it would not amount to a denial of fair hearing unless it is shown that a miscarriage of justice occurred.” An arbitration agreement is an agreement by two or more persons that a dispute or potential dispute between them shall be resolved and decided in a legally binding way by one or more impartial persons in a judicial manner upon evidence put before him or them. It may stand alone or be incorporated in a commercial agreement as in this instance.
See Onuselogu Enterprises Ltd v. Afribank (Nig.) Plc (2005) 12 NWLR (Pt. 940) 577, 585 and A. Rhodes-Vivour’s Commercial Arbitration Law and Practice in Nigeria through the Cases page 145. An arbitration agreement or clause does not oust the jurisdiction of the Court (for parties have no power to contract out of the Constitution) but the Court in the exercise of its power under a statute may stay proceedings in an action brought before it in breach of an agreement to settle a dispute by arbitration. In the case of Mainstreet Bank Capital Ltd v.
Nigeria Reinsurance Corporation Plc, supra. 444 – 445, Kekere-Ekun, JSC, in resolving a similar issue relied on and quoted the case of Obembe v. Wemabod Estates Ltd (1977) 5 SC (Reprint) 70 thus: “The lower Court was right when it held that an agreement to have recourse to arbitration in the event of a dispute does not oust the jurisdiction of the Court. In Obembe v.
Wemabod Estates Ltd (1977) 5 SC (Reprint) 7 AT 79 lines 19 to 28, this Court per Fatayi-Williams, JSC, explained the legal position thus: “As we have pointed out earlier, any agreement to submit a dispute to arbitration, such as the one referred to above, does not oust the jurisdiction of the Court. Therefore, either party to such an agreement may, before a submission to arbitration or an award is made, commence legal proceedings in respect of any claim or cause of action included in the submission. (See Harris v. Reynolds (1845)7 QB 71). PER EKANEM, J.C.A.
The effect of the foregoing is that though the lower Court did not consider the point raised by appellant’s counsel touching on the issue of expiry of time within which resort is to be made to arbitration, the failure did not occasion a miscarriage of justice. See BPS Construction and Engineering Co. Ltd v. F. C. D. A. (2017) 10 NWLR (1572) 1, 14, SCC (Nig.) Ltd v. Anya (2013) ALL FWLR (Pt. 703) 2047, 2062 and Nigerian Communications Commission v.
Motophone Ltd (2019) 14 NWLR (1691) 1, 37 where Aba-Aji, JSC, opined that: “Moreover, even failure to consider all issues submitted before it would not amount to a denial of fair hearing unless it is shown that a miscarriage of justice occurred.” An arbitration agreement is an agreement by two or more persons that a dispute or potential dispute between them shall be resolved and decided in a legally binding way by one or more impartial persons in a judicial manner upon evidence put before him or them. It may stand alone or be incorporated in a commercial agreement as in this instance.
See Onuselogu Enterprises Ltd v. Afribank (Nig.) Plc (2005) 12 NWLR (Pt. 940) 577, 585 and A. Rhodes-Vivour’s Commercial Arbitration Law and Practice in Nigeria through the Cases page 145. An arbitration agreement or clause does not oust the jurisdiction of the Court (for parties have no power to contract out of the Constitution) but the Court in the exercise of its power under a statute may stay proceedings in an action brought before it in breach of an agreement to settle a dispute by arbitration. In the case of Mainstreet Bank Capital Ltd v.
Nigeria Reinsurance Corporation Plc, supra. 444 – 445, Kekere-Ekun, JSC, in resolving a similar issue relied on and quoted the case of Obembe v. Wemabod Estates Ltd (1977) 5 SC (Reprint) 70 thus: “The lower Court was right when it held that an agreement to have recourse to arbitration in the event of a dispute does not oust the jurisdiction of the Court. In Obembe v.
Wemabod Estates Ltd (1977) 5 SC (Reprint) 7 AT 79 lines 19 to 28, this Court per Fatayi-Williams, JSC, explained the legal position thus: “As we have pointed out earlier, any agreement to submit a dispute to arbitration, such as the one referred to above, does not oust the jurisdiction of the Court. Therefore, either party to such an agreement may, before a submission to arbitration or an award is made, commence legal proceedings in respect of any claim or cause of action included in the submission. (See Harris v. Reynolds (1845)7 QB 71). PER EKANEM, J.C.A.
The law is that for a valid and binding contract to exist there must be an agreement, an intention to create legal relations, an offer and an unqualified acceptance of the offer and consideration. See BALIOL (NIG) LTD V. NAVCON (NIG) LTD (2010) LPELR-717(SC) AT 16-17 (D-A). An agreement can be oral or inferred from the conduct of the parties thereto. Once there is mutuality of purpose and intention, an oral agreement or contract is enforceable. See TAURA V. CHUKWU (2018) LPELR-45990(CA) AT 16-17(F). NSITF V. ACCESS BANK PLC (2015) LPELR-25790(CA) AT 11 (A-C). ODUTOLA & ANOR V. PAPERSACK NIG.
LTD (2006) LPELR-2259(SC) AT 25 (A-C), (2006) 18 NWLR (PT.1012)470 . PER BOLAJI-YUSUFF, JC.A.
It is the law that before a contract or agreement can be said to have come into existence in law, there must be an unmistaken and precise offer and an unconditional acceptance of the terms mutually agreed upon by the parties thereto. This means that the parties to the agreement must be in consensus ad idem as regards the terms and conditions freely and voluntarily agreed upon by them. If the terms and conditions of the agreement are uncertain or vague, there can never be a valid agreement known to law which can be said to present itself for enforcement.
See Odutola v Papersack (Nig) Ltd (2006) 18 NWLR (Pt. 1012) 470 and Okubule v Oyagbola (1990) 4 NWLR (Pt. 147) 723. As rightly pointed out by learned counsel for the Respondents there is no written agreement between the parties. There is therefore no evidence of any precise offer. There is no evidence of any unconditional acceptance of any agreed terms. PER ABIRYI, J.C.A.
The essential elements or factors that constitute a valid contract are quite clear and elementary; that there was: (1) an offer – clearly made; (2) an acceptance of the offer, precisely and unconditionally given; (3) consideration paid (in part or as a whole); (4) intention by the parties to create the legal relationship; and of course (5) legal capacity to enter into the contract, including the capacity to transfer title to property (where that is involved).
See the case of Incorporated Trustees of Roh Empire Mission Vs Opara (2017) LPELR – 42463 CA, where it was held: “A contract is a legally binding agreement between two or more persons, by which right are acquired by the party, in return for acts or forbearance, on the part of the other. It is a bilateral affairs, which requires consensus “ad idem” of the parties. See Odutola vs Papersack Nig Ltd (2006) 18 NWLR (pt 1012) 470; Orient Bank (Nig) Plc vs Bilante Int’l Ltd (1997) 8 NWLR (PT.515) 37, Ashaka vs Nwachukwu (2013) LPELR- 20272 (CA). See also Alfa System Com.
Ltd & Ors vs Keji Orisajimi & Ors (2016) LPELR – 40295 (CA), on the five essentials of a valid contract, namely, offer, acceptance, consideration, intention to create legal relationship and capacity to contract, and all the five ingredients must co-exist, before a valid contract can exist.Okubule vs Oyagbola (1990) 4 NWLR (pt.147) 723. Amana Suite and Hotel Ltd vs PDP (2007)6 NWLR (pt.1031) 453.” See also Abdullahi & Ors Vs El-Rufai & Ors(2021) LPELR – 55627 (SC), where it was held: “For a valid contract to emerge, there are five elements that must be present and recognizable.
These are offer, acceptance, consideration, intention to create legal relationship, capacity to create legal relationship and capacity to contract. Thus, before any contract or agreement can be said to come into existence in law, there must be an unmistaken and precise offer, followed by an unconditional acceptance of the terms mutually agreed upon by the parties thereto. That is to say the parties to the agreement must be in consensus ad idem as regards the terms and conditions freely and voluntarily agreed upon by them.
See BILANTE INTERNATIONAL LTD VS NIGERIA DEPOSIT INSURANCE CORPORATION (2011) 6-7 SC (PT IV) 113, OMEGA BANK PLC V. OBC LTD (2005) 8 NWLR (PT 928) 547, AMANA SUITES HOTEL LTD V. PDP (2007) 6 NWLR (PT. 1031) 453. Therefore, where an offer is made but is not accepted, there can be no agreement or contract arising therefrom. An offer is an expression of readiness to contract on the terms specified by the offeror (i.e the person making the offer) which when it is accepted by the offeree (i.e the person to whom the offer is made) will give rise to a valid and binding contract.
In other words, it is by acceptance that the offer is converted to a contract. See SPARKLING BREWERIES LTD & ORS V. UNION BANK OF NIGERIA LTD (2001) 10 SCM 163. A mere willingness to enter into a negotiation with a view to entering into a contract cannot be an offer but at best an invitation to treat. See OMEGA BANK PLC V. OBC LTD (SUPRA).” Per OSEJI, JSC. PER MBABA, J.C.A.
For a valid contract to emerge, there are five elements that must be present and recognizable. These are offer, acceptance, consideration, intention to create legal relationship, capacity to create legal relationship and capacity to contract. Thus, before any contract or agreement can be said to come into existence in law, there must be an unmistaken and precise offer, followed by an unconditional acceptance of the terms mutually agreed upon by the parties thereto.
That is to say the parties to the agreement must be in consensus ad idem as regards the terms and conditions freely and voluntarily agreed upon by them. See BILANTE INTERNATIONAL LTD VS NIGERIA DEPOSIT INSURANCE CORPORATION (2011) 6-7 SC (PT IV) 113, OMEGA BANK PLC V. OBC LTD (2005) 8 NWLR (PT 928) 547, AMANA SUITS HOTEL LTD V. PDP (2007) 6 NWLR (PT. 1031) 453. PER SAMUEL CHUKWUDUMEBI OSEJI, J.S.C
The parties, in their freedom to contract, are deemed to intend to be governed by the terms of their contract. They are not permitted to adduce oral evidence to establish terms extrinsic to and to vary the terms agreed upon. See: Atiba Iyalamu Savings & Loans Ltd. Vs Suberu & Anor (2018) 13 NWLR (Pt.1637) 387; (2018) LPELR-44069 (SC) @ 49-51 G-A; Larmie Vs Data Processing & Maintenance Services Ltd. (2005) 12 SC (Pt.1) 93; (2005) LPELR-1756 (SC) @ 17 B-C; Baker Marine (Nig) Ltd Vs Chevron Nig. Ltd. (2006) 13 NWLR (Pt.997) 276 @ 287-288 . PER IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.
Furthermore, it is a settled principle of law that parties are bound by their agreements freely entered into and will not be permitted to resile therefrom. This is the essence of the doctrine of sanctity of contract. See: Babatunde & Anor Vs Bank of the North Ltd. & Ors (2011) LPELR-8249 (SC) @ 21 B-F; AG. Rivers State Vs A.G. Akwa Ibom State & Anor (2011) 3 SC 1; (2011) – 633 (SC) @ 22 E-F. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.
THE DUTY OF A COURT TO TERMS OF A CONTRACT Where the terms of a contract are clearly expressed in a written document or documents, the Court cannot go outside those terms to ascertain the intention of the parties. See: Union Bank of Nigeria Plc Vs Ajabule & Anor. (2011) LPELR-8239 (SC) @ 39 C-9 . PER IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.
Placing reliance on TSOKWA MOTORS NIG LTD & ANOR v UNION BANK OF NIG. LTD. (1996) LPELR-3267 (SC), OMEGA BANK (NIG) PLC v O. B. C. LTD (2005) LPELR-2636 (SC) and EL SALEM (NIG) LTD v ODEH & ANOR (2018) LPELR-44450 (CA) PP. 23-24 on the ingredients of a valid contract, Vitol maintained that there was overwhelming documentary evidence showing the existence of a valid contract between the parties for sale/purchase of well casings including, notably, Exhibit P1 page 10 (i.e.
Vitol’s letter of 19/9/07 titled “RE: OFFER OF TUBULARS”), which was accepted vide LBD’s email of 27/11/07 and letter dated 3/12/07 as rightly found by the lower Court. In Vitol’s estimation, subsequent emails exchanged between the parties which concretised the contract of sale over and beyond mere negotiation.
It was argued that the lower Court rightly rejected LBD’s contention that the letter of 3/12/07 was a counter offer and that a contract may emerge from series of correspondence exchanged between two (or more) persons insofar as it is apparent that the parties have come to an agreement when the correspondence are read together as in the instant case, citing NNEJI v ZAKHEM CONST. (NIG) LTD [2006] NWLR (PT 994) 297 at 311 – 312 and SHELL B. P. PETROLEUM DEVELOPMENT COMPANY v JAMMAL ENGINEERING (NIG) LTD (1974) 4 SC 33 at 72. PER AFFEN, J.C.A. WHETHER OR NOT PLEADINGS ARE BINDING ON PARTIES
The foregoing are the arguments put forward by the parties in respect of Grounds 1 and 2. It is merely restating the obvious that pleadings occupy a preeminent position and pride of place in the schema of adversarial proceedings initiated by writ of summons, they serve the purpose of procedural fairness. See BANQUE COMMERCIALE v AKHIL HOLDINGS (1990) CLR 279 at 286. They equally delineate or delimit the canvass and forensic contours of a civil suit and thereby eliminate the springing of surprise on the adversary. Hence, pleadings are forcefully binding on the parties as well as the Court.
See GEORGE & ORS v DOMINION FLOUR MILLS LTD (1963) 1 ALL NLR 71, NIPC v THE THOMPSON ORGANISATION LTD & ORS (1969) NMLR 99, AMIDA & ORS v OSHOBOJA (1984) 7 S.C. 68 at 107 –per Aniagolu JSC and OVERSEAS CONSTRUCTION LIMITED v CREEK ENTERPRISES LIMITED [1985] 3 NWLR (PT. 13) 407 at 419 – per Oputa JSC. It is imperative that pleadings (which are meant primarily to let parties know each other’s case) should be sufficient, comprehensive and accurate. JAMES v MID MOTORS LIMITED (1978) 11-12 SC 31.
Averments in pleadings [which are usually set out seriatim in numbered paragraphs] must not be read disjunctively but in conjunction with the totality of the paragraphs taken as a whole in order that the facts averred may be properly ascertained. See PAN ASIAN AFRICAN CO. LTD v NATIONAL INSURANCE CO (NIG) LTD (1982) 9 SC 1 at 48 and TITILOYE v OLUPO [1991] 7 NWLR (PT. 205) 519 at 532.
It is by reading the paragraphs conjunctively that the true direction or drift of the averments can be discovered, as subsequent paragraphs of the pleadings may provide the missing link or make clear any amphiboly or vagueness of an earlier paragraph standing alone. PER AFFEN, J.C.A.
For a valid contract to exist, three elements must be present. These elements are offer, acceptance and consideration, without which a contract is not valid. This is so because there must be consensus ad idem, a meeting of the mind and mutuality of purpose for a contract to be binding on the Parties involved. In the case of BILANTE INTL LTD V. N.D.I.C (2011) LPELR – 781 (SC) the Apex Court held that: “To constitute a binding contract between parties, there must be a meeting of the mind often referred to as consensus ad idem. The mutual consent relates to offer and acceptance.
An offer is the expression by a party of readiness to contract on the terms specified by him which if accepted by the offeree gives rise to a binding contract. The offer matures to a contract where the offeree signifies a clear and unequivocal intention to accept the offer. See Okugbule & Anor v. Oyagbola & Ors (1990) 4 NWLR (Pt. 147) 723. It should be reiterated that in order to establish that parties have formed a contract, there must be evidence of consensus ad idem between them.” Per Fabiyi, J.S.C. (Emphasis mine). (See also TSOKWA OIL MARKETING CO. (NIG) LTD V.
BANK OF THE NORTH LTD (2002) LPELR – 3268 (SC) and FASSASSI V. ZAMFARA STATE GOVT & ANOR. (2019) LPELR – 49323 (CA). The elements that must exist in a contract to make it valid and binding on the parties were expounded in the case of BPS CONSTRUCTION & ENGINEERING CO. LTD V. FCDA (2017) LPELR – 42516 (SC) thus: “…Contract is defined as an agreement between two or more persons which creates an obligation to do or not to do a particular thing.
Its essentials are competent parties, subject matter, a legal consideration parties, subject matter, a legal consideration, mutuality of agreement and mutuality of obligation. Lamoureu v. Burrillvillle Racing Ass’n 91 R. 194, 161 A.2d 213, 215… The basic elements of binding contract are therefore offer, acceptance/consideration, capacity to contract and intention to create a legal relationship. See also Alfotrin Ltd. Vs A.G.
Federation & Ors. (1996) 9 NWLR (Pt. 475) 634 AT 656 H; (1996) LPELR-414 (SC) AT 29 B – D per Iguh, JSC to wit: “To constitute a binding contract, there must be an agreement in that the parties must be in consensus ad idem with regard to the essential terms and conditions thereof; the parties must intend to create legal relations and the promise of each party in a simple contract, not under seal, must be supported by consideration.
There must be a concluded bargain which has settled all essential conditions that are necessary to be settled and leaves no vital term or condition unsettled.” Per Kekere-Ekun, J.S.C. (Emphasis mine). PER DONGBAN-MENSEM, J.C.A.
The Appellants contend that acceptance could be inferred by the silence and conduct of the Respondent. This submission is not applicable in the instant case. This is because for acceptance to be inferred from the silence or the conduct of a party, this conduct must be positively geared towards the fulfilment or performance of the contract. For instance, if Party A tells Party B to supply chairs to Party A and Party B without communicating acceptance goes ahead to supply the Chairs. This would be interpreted as acceptance by conduct. In B. F. I. GROUP V.
BUREAU OF PUBLIC ENTERPRISES (2007) LPELR – 8998 (CA), this Court declared that: “The conduct of the parties must be unequivocally traceable to the transaction to constitute acceptance. Where there is a missing link between the conduct of the parties and the transaction, a Court of law will not be prepared to hold that a valid contract exists between them. An acceptance of offer by conduct will amount to proper acceptance only if it is clear that the offeree did the act with the intention of accepting the offer. See Orient Bank (Nig.) Plc v.
Bilante International Ltd (1997) 8 NWLR (pt 515) 37 at 77 per Tobin: Majekodunmi v. NBN (1978) 3 SC 119, Chagoury v. Adebayo (1972) NCLR 384, UBN Ltd v. Ozigi (1991) 2 NWLR (pt. 176) 677. There must be positive evidence from which the Court may infer an acceptance. This may consist in words, in writing or in conduct. The acceptance must be communicated to the offeror.” Per Peter-Odili, JCA (AHTW). (Emphasis mine). PER DONGBAN-MENSEM, J.C.A.
Once the parties are agreed on a compromise agreement, or to compromise the judgment of the trial Court, all that they need to do is to inform the Court, although it may be desirable that they have their terms of agreement entered as Terms of Settlement. The Court may make no order. See Green v Rozen & Ors (1955) All England Law Reports p.797. OLABODE RHODES-VIVOUR, J.S.C
AN APPEAL ONLY BE BROUGHT AGAINST THE NEW AGREEMENT AND NOT AGAINST THE JUDGMENT THAT WAS COMPROMISED When a Compromise Agreement is brought to the notice of the Court, the agreement compromising the action between the parties completely supersedes the original cause of action and the Court has no further jurisdiction in respect of that action. Put in another way when judgment has been delivered by the Court but the parties are not satisfied with it, they negotiate and reach settlement agreeable to them. In law the parties have compromised the judgment.
This compromise or settlement is a new independent agreement. An appeal only be brought against the new agreement and not against the judgment that was compromised. OLABODE RHODES-VIVOUR, J.S.C
A compromise settlement between Parties to a dispute may be described as a contract whereby new rights are created between them in substitution for and in consideration of the abandonment of the claim or claims pending before the Court. A Consent Judgment or Order by nature is as effective in law in respect of all the matters, which are settled as any other Judgment or Order, arrived at after hearing a matter on merit. The essence is to put a stop to litigation between the Parties just as much as is a judgment, which results in the normal proceedings of a Court, in a matter heard on its merit.
Amina Adamu Augie, JSC