MISS FELICIA OSAGIEDE OJO VS DR. GHARORO
June 6, 2025KAMALDEEN TOYIN FAGBENRO VS GANYIYEWHE AROBADI & ORS
June 6, 2025Legalpedia Citation: (2006-03) Legalpedia 86381 (CA)
In the Court of Appeal
HOLDEN AT ABUJA
Fri Mar 10, 2006
Suit Number: SC.252/2001
CORAM
SYLVESTER UMARU ONU, JUSTICE COURT OF APPEAL
ALOYSIUS IYORGYER KATSINA-ALU
UMARU ATU KALGO
GEORGE ADESOLA OGUNTADE
IKECHI FRANCIS OGBUAGU
PARTIES
STANDARD (NIGERIA) ENGINEERING COMPANY LTD
APPELLANTS
NIGERIAN BANK FOR COMMERCE AND INDUSTRY
RESPONDENTS
AREA(S) OF LAW
APPEAL, COURT, LAW OF CONTRACT, PRACTICE AND PROCEDURE
SUMMARY OF FACTS
The Plaintiffs/Appellants at the Akure Division of the High Court of Ondo State claimed on their amended statement of claim as follows: a declaration that the refusal of the Defendant to open letter of credit required by the Plaintiffs constitute a breach of the investment and mortgage agreement between the Plaintiff and the Defendant; an order of specific performance that the Defendant should unconditionally open the letter of credit with the Plaintiffs’ new suppliers at the current price in 1994 of the machinery and equipment needed for the project, the subject of the contract. Alternatively, an order directing the Defendant to pay the sum of N430, 198,000.00, as damages thus: – Cost of purchase, stamp duty, registration of projects with erection of factory building -N7, 000.000.00, Cost incurred in making four trips to England in company of other officials of the supplier and other expenses -N2, 024, 000.00, Loss of anticipated profit and earning on the project -N12, 897, 000.00 amongst other reliefs.
The trial court in its judgment stated as follows: “In sum, I refuse the declaration sought and come to the conclusion that the fraud and distrust of the suppliers by the plaintiffs frustrated the business deal of the plaintiffs and led to a breach of the mortgage agreement. I order that the defendant open a letter of credit with the plaintiffs’ new suppliers at the current price of the machinery and equipment needed for the project or in the alternative the defendant should refund all the expenses of the plaintiff at the time of application in 1988.”
The Respondent appealed against the said decision whilst the Appellants, cross-appealed. Briefs were filed and exchanged by the parties. In a unanimous decision, the court below allowed the main appeal, dismissed the claims of the Appellants and dismissed the cross-appeal hence the appeal by the Appellants to this court
HELD
Appeal Dismissed, Cross Appeal Dismissed
ISSUES
Whether the Court of Appeal was right in holding that the refusal by the respondent to accept the new supplier nominated by the appellant did not constitute a breach of the Mortgage and Investment Agreement?
Whether the application of the Supreme Court decision in Mazin Eng. Ltd. v. Tower Aluminium Ltd. (1993) 5 NWLR (Pt. 295) 526 and the rejection of the applicability of the Supreme Court decision in Nasaralai v. Arab Bank (1986) 4 NWLR (Pt.36) 409 by the Court of Appeal has not occasioned a miscarriage of justice in this case?
Whether the finding by the Court of Appeal to the effect that the suppliers (i.e. WAF Export Ltd.) was an agent to the plaintiff and that the claim of the plaintiff did not correspond with the reliefs ordered by the trial Judge were not perverse?
RATIONES DECIDENDI
APPEAL – NATURE OF AN APPEAL
“I have deliberately gone this far because, it is now settled that an appeal, is by way of re-hearing . See Sabru Motors Nig. Ltd. v. Rajab Enterprises Nig. Ltd. (2002) 7 NWLR (Pt.766) 243, (2002) 4SCNJ 270 at 282; and Attorney-General, Anambra State & 5 Ors. v. Okeke & 4 Ors. (2002) 12 NWLR (Pt.782) 575, (2002) 5 SCNJ. 318 at 333”. PER I. F.OGBUAGU, J.S.C.
TERMS OF AN AGREEMENT – WHETHER A JUDGE IS EMPOWERED TO RE-WRITE THE CONTRACT AGREEMENT OF PARTIES
“From the first order, the learned trial Chief Judge, with respect, was re-writing, the contract agreement of the parties. Surely, and on the decided authorities, he was not entitled to do so. See Fakorede & Ors. v. Attorney-General of Western State (1972) 1 All NLR 178 at 189; (1972) 3 S.C. 79; Oduye (Mrs.) v. Nigeria Airways Ltd. (1987) 2 NWLR (Pt.55) 126; (1987) 4 SCNJ 40; Mrs. Layade v. Panalpina World Transport Nig. Ltd. (1996) 6 NWLR (Pt.456) 544, (1996) 7 SCNJ 1 at 14 – 15 – per Adio, JSC, and many others. PER I. F.OGBUAGU, J.S.C.
COURT – WHETHER A COURT CAN GRANT A RELIEF NOT SOUGHT BY A PARTY
“It is now firmly settled in a plethora of decided authorities/cases by this court, that a court, does not award what is not sought by a party or what is not claimed by a party . See Ekpenyong v. Nyong (1975) 2 S.C. 71 at 81- 82; Kalio v. Daniel-Kalio (1975) 2 S.C 15 at 17-19. Makanjuola & Anor. v. Chief Balogun (1989) 3 NWLR (Pt. 108) 192 at 206; (1989) 5 SCNJ 42; Olurotimi v. Ige (Mrs) (1993) 8 NWLR (Pt.311) 257 at 271; (1993) 10 SCNJ 1 and recently, Adeye & 8 Ors. v. Chief Adesanya & 3 Ors. (2001) 6 NWLR (Pt.708) 1, (2001) 2 SCNJ 79 and Joe Golday Co. Ltd. & 5 Ors. v. Co-operative Development Bank Plc (2003) 5 NWLR (Pt.814) 586, (2003) 2 SCNJ 1 at 20 just to mention but a few. PER I. F.OGBUAGU, J.S.C.
COURT – DUTY OF COURT NOT TO AWARD A RELIEF NOT CLAIMED OR PLEADED BY A PARTY
“It has been decided in a long list of authorities that the court should never award what was never claimed or pleaded by either party: See Ekwunife v. Wayne (W/A) Ltd. (1989) 5 NWLR (Pt.122) 427; (1989) 5 NWLR (Pt.22) 427; Ekpenyong v. Inyang (sic) (1975) S.C. 71, 80 89. The above pronouncement, cannot be faulted by me as it is settled law. PER I. F.OGBUAGU, J.S.C.
CASES CITED
Not available
STATUTES REFERRED TO
Not available
