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Costain (W.A.) Plc. vs. Savol (W.A.) Ltd.

COSTAIN (W.A.) PLC

V

SAVOL (W.A.) LIMITED

COURT OF APPEAL

( LAGOS DIVISION )

ISA AYO SALAMI JCA (Presided and Read the Lead Judgment)

WALTER SAMUEL NKANU ONNOGHEN JCA

CLARA BATA OGUNBIYI JCA

CA/L/185/2001

MONDAY, 15TH NOVEMBER, 2004

APPEAL - Document pleaded in evidence at trial court - Complaint that it be expunged by party who tendered it in evidence on appeal - How treated

APPEAL - Fresh issue on appeal - How raised

APPEAL - Fresh issues on appeal - Raising of - Need for leave of appellate court

CONTRACT - Contract - What is

CONTRACT - Contract based on documents -  Duty on court to read all documents together

CONTRACT - Contract between parties - Duty on court not to vary terms and conditions of contract for parties

CONTRACT - Contract by series of letters or correspondence - Duty on court to read all the letters together

CONTRACT - Counter-offer - Whether operates as an acceptance

CONTRACT - Offer and counter-offer - Whether constitutes valid contract

CONTRACT - Terms of contract - Need to be express and ascertainable

COURT - Contract - Duty on court not to vary terms and conditions of contract

DOCUMENT - Document pleaded in evidence - Complaint that document be expunged by party who tendered it in evidence How treated

DOCUMENT - Documents pleaded in evidence - Whether party who voluntarily pleads can discredit them on appeal

EVIDENCE - Documentary evidence - Complaint that document be expunged by party who tendered it in evidence - How treated

PRACTICE AND PROCEDURE - Document pleaded in evidence Complaint that document be expunged by party who tendered it in evidence - How treated

Issues:

1.              Whether exhibit M1J5 imposed on the appellant the obligation to pay for any charges apart from the agreed sum of N18 million to procure the delivery of the consignments to the appellant.

2.              Whether the court in construing the agreement made by correspondence considered all the letters exchanged after the conclusion of the agreement and full performance by the appellant.

3.              Whether in determining the obligations imposed on the parties under the agreement formed by exhibits M1J1 - 5, the trial Judge can properly read or construe into the agreement letters or documents written after the conclusion of the agreement and full performance by one party.

4.              Whether the trial Judge can properly construe exhibits M1J2 in isolation of exhibits M1J1, M1J3, 4 and 5.

5.              Whether the trial Judge properly interpreted exhibits M1J1 5

6.              Whether the appellant is liable to pay all the charges, duties, dues and fees on identified containers as pre-condition for delivery of outstanding consignment.

Facts:

In the High Court, the appellant commenced an action by originating summons for the court to examine certain documents or correspondence exchanged between the parties, marked exhibits M1J1 - M1J10 and ascertain whether by reading them together, they constitute a simple contract.

Exhibit M1J1 was an offer to the respondent from the appellant asking if respondent could deliver in consideration of N18,000,000 all outstanding consignments. This offer was conditionally accepted in exhibit M1J2 which was also a counter-offer to the appellant. In exhibit M1J3, this offer was rejected by the appellant who rejected the conditions stipulated by the respondent. Without waiting for an acceptance of their new proposal in exhibit M1J3, the appellant proceeded to fulfil the terms of their original offer but in full disregard of the conditions stipulated by the respondents. The respondent thereafter by exhibit M1J5 in protesting the appellant’s conduct made a suggestion which they expected to resolve the impasse. This resulted in a serious breach of contract.

The lower court ruled in favour of the respondent. Dissatisfied, the appellant has appealed to the Court of Appeal. The Court of Appeal only considered exhibits M1J1 - M1J5 as relevant to the appeal.