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  • Tsokwa Oil & Marketing Co. Nig. Ltd v. Bank of the North Ltd
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  • 2002-07-22
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Tsokwa Oil & Marketing Co. Nig. Ltd v. Bank of the North Ltd

TSOKWA OIL MARKETING CO. NIG. LIMITED

V

BANK OF  THE NORTH LIMITED

SUPREME COURT OF NIGERIA

SALIHU MODIBBO ALFA BELGORE, JSC ( Presided )

MICHAEL EKUNDAYO OGUNDARE, JSC

EMANUEL OBIOMA OGWUEGBU, JSC

SYLVESTER UMARU ONU, JSC ( Read the Lead Judgment )

UMARU ATU KALGO, JSC

SC.58/1997

FRIDAY, 17TH MAY, 2002

APPEAL - Filing of initial appeal and amended appeal - Differences in provisions of governing enactments: Court of Appeal Act viz-a-viz Court of Appeal Rules - Differences in consequences of non compliance therewith

APPEAL - Findings on evidence by trial court - When appellate court will interfere with

APPEAL - Non-compliance with governing principles - Effect - Differences between mere irregularity and fundamental non-compliance - Court of Appeal Act and Court of Appeal Rules considered

APPEAL - Preliminary objection on appeal - Filing of - Whether forecloses erring party from correcting errors complained of

CONTRACT - Breach of contract - Onus on plaintiff to prove that defendant responsible for breach

CONTRACT - Condition precedent - Effect of on the formation and bindingnss of a contract

CONTRACT - Conditional contract - Phrase ‘subject to’ therein -

Interpretation of

CONTRACT - Conditions in a contract - Types of conditions

CONTRACT - Consensus ad idem - Pre-requisite for a valid contract

CONTRACT - Discharge of - Ways in which a contract can be discharged

CONTRACT - Valid contract - Definite offer and definite acceptance as a pre-requisite of

COURT - Findings on evidence by trial court - When appellate court will interfere with

DAMAGES - Claim for unliquidated damages for breach of contract - Onus on plaintiff to prove that defendant is responsible for breach before he can be made liable for losses arising therefrom

DAMAGES - Unliquidated damages - Duty of court to indicate its assessment on claims for damages even if it finds against claimant

EVIDENCE - Admissions - Admission by a person who has no knowledge of admitted facts - Effect of

EVIDENCE - Admissions - Witness testifying that he is not aware of existence of facts - Whether constitutes an admission

EVIDENCE - Proof of facts adduced - Onus on he who asserts to prove Exception to

PRACTICE AND PROCEDURE - Preliminary objection - Filing of Whether forecloses erring party from correcting error complained of

STATUTE - Court of Appeal Act vis-a-vis Court of Appeal Rules - Noncompliance therewith - Differences in effect

WORDS AND PHRASES - ‘Subject to’ in a contractual clause - Meaning and effect of

Issues:

1.            Whether the Court of Appeal was right in striking out the appellant’s preliminary objection before it.

2.            Whether the defendant was right in cancelling the Performance Bond it was to grant in favour of the appellant.

3.            Whether the appellant established its case before the trial court so as to entitle it to the award of N4,707,752.80 as damages for breach of contract.

Facts:

The appellant was at all material times to this action a customer of the respondent at the latter’s Rafia kada branch, Taraba State. The appellant applied to the respondent for a performance bond in the sum of N300,000 ( Three Hundred Thousand Naira). The respondent accepted to issue the bond subject to four conditions contained in its letter of 30th October, 1989, which was tendered as exhibit 75 at the trial court. The appellant fulfilled only two of the conditions hence the bond was not released to him without reference to the other conditions, it applied for an increase in the value of the performance bond. The respondent by a letter 1st July, 1981 cancelled the earlier bond approved and informed the appellant that it would work towards meeting its new demands.

The appellant subsequently filed an action for damages for breach of contract at the Taraba State High Court claiming that having fulfilled all the conditions contained in exhibit 75, the respondent breached the contract reached thereby by cancelling the approved bond. At the trial, despite assertions by the respondent that the appellant did not fulfil all the conditions in exhibit 75, the appellant on whom the onus lied to prove compliance failed to adduce any evidence in proof of same. The trial court nevertheless found for the appellant and granted all reliefs sought by it. On appeal to the Court of Appeal, the respondent initially filed eight grounds of appeal and was subsequently granted leave to file two other grounds. There was no time limit for the filing of the additional grounds. The respondent neglected to file the additional grounds of appeal but nevertheless went ahead to argue same in the brief filed. The appellant (respondent therein) discovered this error and filed a preliminary objection on receipt of which the respondent ( appellant therein) filed the additional grounds of appeal and with leave filed an amended appellant’s brief. The appellant also amended his brief of argument.

However, in its brief of argument, the appellant formulated an issue for determination based on the preliminary objection filed. The Court of Appeal at the conclusion of hearing set aside the trial court’s judgment. Dissatisfied the appellant appealed to the Supreme Court.