(Vol 9 No. 28) BGKT V. LAGOS INEC

IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDENAT IKEJA
BEFORE THE HONOURABLE JUSTICE A.A. PHILLIPS
THIS 9TH DAY OF APRIL 2009

SUIT No. LD/1031/2004

BETWEEN
BGKT NIGERIA LIMITED - PLAINTIFF
AND
LAGOS STATE INDEPENDENT - DEFENDANT
ELECTORAL COMMISIION

Parties absent
Mrs G. A. Okerinde for the Claimant
A. A. Adewale for the Defendant

JUDGEMENT

INTRODUCTION
This case was instituted by a Writ of Summons and a Statement of Claim both dated 10/5/04. The Defendant filed an Amended Statement of Defence and Counter claim dated 21/11/2005 and the Claimant in turn filed a Reply and Defence to counter claim dated 25/4/06 and this is the state of the pleadings in this matter.

THE CLAIMS
In paragraph 27 of the Claimant’s Statement of Claim dated 10/5/04 it claims against the Defendant as follows:-

1. The Claimant claim against the Defendant is for the total sum of N2,260,000.00(Two Million Two Hundred and Sixty Thousand Naira) only being the cost of producing an additional 750( Seven Hundred and Fifty) electoral boxes for the Defendant out of a total 3000 boxes and also the cost of providing adequate security for the said 750 boxes which the Defendant contracted the Claimant to produce before the Defendant terminated the contract retroactively after the Claimant had produced the electoral boxes and taken them to the Defendant's office for delivery

2. The Claimant also claims interest on the said at the rate 25% per annum from the 11th March, 2004 until the liquidation of the judgment debt and cost.

The Defendant counter claimed against the Claimant in paragraph 34 of the Amended Statement of Defence and Counter claim wherein it claims as follows:

1. The total sum of N1, 500,000.00(0ne Million Five Hundred Thousand Naira Only) being cost of awarding 500 aluminium boxes at the rate of N3/ 000.00 per unit which the Claimant had failed to supply in accordance with sample shown to it as specification which boxes are lying at the premises of the Defendant unused to date.

2. The Defendant/Counter-Claimant also claims interest on the said amount at the rate 25% per annum from the 30th of January 2004 until judgment is given.

THE TRIAL
The Claimant called only 1 witness in the person of MRS ADEYINKA ADEKUNBI BANASKO who testified as CWI. The Defendant called 2 witnesses to testify in respect of its defence as follows:-
1. SUNMOLA POPOOLA DW1.
2. TOKUN PEDRO DW2

The Evidence in Chief of CW1 is as is contained in her written Statement on Oath dated 25/2/05 which may be found at pages 30-34 of the court file.
When cross examined by the Defendant's counsel she admitted that she signed the letter marked Exhibit C3 and agreed that she accepted the terms of the contract between her and the Defendant. She staled that she was aware from the inception of the contract that the security of the product was a fundamental term of the contract and that the guarantee was not extraneous to the contract. She knew that the boxes were required for a specific purpose on a specific date and that the purpose of the boxes was to conduct the Local Government Elections in Lagos State on the 27/3/04.She said that she knew the contract was time bound but that she did not supply all the boxes by that date. She said that she has stated in her deposition that 1st and 2nd February 2004 were public holidays and that that was one of the reasons she could not comply with the contract but that she did not raise this issue in any of the letters to the Defendant. She said that the Defendant's cheque matured on the 30/1/04 but could not remember what day of the week that was- Neither could she remember what day of the week 1/2/ was but she remembered that that day was a public holiday. She could not remember whether she went to work on the 1/2/04 but she remembered that she could not go to the market on that day and that if it is essential she goes to the market on Sunday.

She went on to state that she was one of the four contractors employed to produce the' boxes and she recalled signing a document along with other contractors and identified the document as Exhibit C11. She agreed that this letter was written before the Defendant's cheque had cleared in her account, she recalled having a meeting with the Defendant as a result of the letter and as a result of the meeting the Defendant wrote to her that they were not prepared to vary the term of 'the contract. She stated further that upon the receipt of Exhibit C12 she wrote Exhibit C13 to the Defendant and that in that letter that there was no reference to the issue of the public holiday. She slated further that she was aware from inception that the job was suppose to be executed in batches and that it was not true that the first batch she delivered was 750 boxes.
She admitted that she did not complete the delivery as promised in Exhibit C13 and could not remember whether she delivered the 750 boxes by 4/3/04. She could not and she admitted that as at 20/2/04 that she had not delivered the boxes. She further stated that by 29/2/04 she had delivered 167 boxes instead of the number contracted to supply and denied the suggestion that they could not supply the full number" of the boxes because of their incompetence but admitted that the Defendant's officials complained about the pace of her work but not of the quality. She denied the allegation that she sent her workers to carry out repairs on the boxes within the Defendant's premises and agreed that the storekeeper had cause to make observation on her Waybill but that the comment had nothing to do with the specification of the ballot boxes, that he only made his own comments.

She said she did not confirm that the Defendant had paid in full for the first set of 750 boxes and she could not remember how many boxes she took as the last batch to the Defendant unless she sees the waybill. She stated that her claim before the court is that she took 750 boxes To the Defendant expecting them to collect them but they did not do so.- She said further that other boxes were supplied must have been after 6/3/04. She agreed that the store keeper told her the reason for not accepting the balance of the boxes but that she did not interact with the storekeeper, that it was her staff that did. She stated that she was not aware that she was supposed to supply only 750 ballot boxes on that day and denied the suggestions that she was not.

She looked at Exhibit C14 and agreed that they were expected to deliver 750 boxes not later than 4/3/04, she agreed that she signed Exhibit C11 and that the other signatories did not deliver in time that only ALUMACO did. She looks at Exhibit C9 and stated that at the time she got the contract that the Local Government Elections was fixed for 27/3/04 and that the election held as scheduled. She said that at the time she obtained Exhibit C9 the election had already held. She Looked at Exhibit C16 dated 9/3/04 and stated that by that date she had delivered a batch of 750 boxes and that Exhibit C9 had nothing to do with the batches for 750. She said she is the Managing Director of the Claimant Company and that she does not manufacture ballot boxes and this is the first time she is handling this contract for the Defendant. She said that they have not handled any ballot boxes for INEC either and denied the suggestions that the contract failed because she lacked the capacity and experience to execute the contract.

This witness was not re-examined and with the conclusion of her evidence learned counsel for the Claimant closed the case for the Claimant.
The Defence then opened its case and the evidence in chief of DW1 the Defendant's Principal Store Officer for the Defendant who is his employer may be found at pages 89-90 of the Court file.

When crossed examined by learned counsel for the Claimant he stated that a contractor cannot supply anything unless it is in a work order and that the Claimant did not supply any extra boxes outside those supplied under Exhibit (C16 -C21). He said that his duties do not include the writing of letters of contract to contractors as that it is done by the Secretary to the Commission and that the Claimant was contracted to supply 3,000 boxes provided that they were supplied by 4/3/04. He said that he knows Barrister Dokun Pedro and denied that he was not usually there when the contractors were discussing with Mr. Pedro. He agreed that he commented on Exhibits C16 -C21 that the keys were undersized. .He said that he was aware that the Claimant had discussed this with Mr. Pedro-but was not aware that Barrister Pedro gave approval that the ballot boxes be used. He was also not aware that Barrister Pedro said that his comments were non issue. He further stated that he rejected the ballot boxes because there was no work order for them and that the Claimant did not supply any extra ballot boxes outside Exhibits C16 - C21. Only 250 boxes were good the remaining 500'boxes were bad. He looked at Exhibit C8 and read paragraph 3, and stated that he had written his comments on Exhibit C16—C21 before he, along, with the Claimant went to see Mr. Pedro. He said that it is not true that as at 23/3/04 some other Contractors were still supplying ballot boxes to them and that he did not know when the letter of revocation of the contract was written. He said that he never accompanied the Defendant's officials to where they manufactured ballot boxes as that it is not part of his duties and that the comments he made on the keys were in regard to the rims of the said keys as they are not good for the security of the boxes. He stated that he wants the court to order that the Claimant should return the mobilisation fee paid for the 500 boxes that were bad and that their counter claim is not an afterthought as all the boxes the Claimant supplied were bad. He said that he did not return the bad ballot boxes to the Claimant and they are lying down unused, he stated further that they did not write to the Claimant to take them that there was no need to write. This witness was not re-examined.

The Evidence in chief of DW2 may be found at Pages 80-83 of the Court file wherein he stated that he is an Electoral Commissioner with the Defendant.
When cross examined by learned counsel for the Claimant he stated that he is a lawyer with 20 years at the bar. He looked at Exhibit C2 and stated that Exhibit C1 is one part of the contract between the parties. He stated that the Claimant introduced another term of the contract which was accepted by the Defendant and that there are other documents to substantiate this but he cannot see them in the documents shown to him- He stated that the Claimant was asked to supply 2000 boxes in this document and that the Claimant did not comply with the conditions in paragraph (S) - (ix) of Exhibit C2 before the first payment of N2.25 million v-/as made. He looks at paragraph ix of Exhibit C2 and states that there was a partial compliance and that he is not the legal adviser and that he does not award contracts. He stated that he is aware of the contract when he was on duty and that he was aware when this contract was awarded. He stated further that he was aware that the Commission inspected the Claimant's premises and that the inspection was made after the disbursement. He stated that the Commission did not comply with paragraph ix of Exhibit C2 and he stated in his evidence in chief that the boxes were to be delivered in batches. He stated further that it was contemplated in Exhibit C2 'that the boxes were to be delivered in batches though it is not expressly stated therein. He stayed that he informed the Claimant of the lapses verbally and the Commission then communicated this to her in writing. He stated further that he does not have a special relationship with the contractors and Exhibit C15 is the letter informing the Claimant of the lapses. He said that the Chairman does not bring ail letters addressed to him at a meeting of the Commissioners and that if the letter affects the commissioner he brings it to the attention of the Commissioner. He said that he has never seen Exhibit C8 before and could not say whether the Commission replied the letter. He stated that the conversation in respect of the keys was held in his office and CW1 was merely being apologetic and that she discussed with him. He said he fold her that the Commission was going to write to her and terminate the contract and that. He was aware that the storekeeper rejected certain number of boxes and she came to him to plead with him that she will change the boxes complained about. He looked at Exhibit C21 and stated that the delivery was made 10/3 and that he saw "the Statement of Claim herein. He stated further the he did not dispatch the letter to the Claimant and that he does not know who dispatched the letter and that it will surprise him to learn that the Claimant received the letter on the 26/3/04. He stated that he did not find out when it was received and that he has seen the counter claim filed by the Defendant and he remembered that they are claiming N1.5 million or a certain sum of money. He stated further that he taught Sales of Goods Law for 11 years and that he has document for the contract of the award of the 500 boxes. He stated that he will be surprised to hear that the Claimant denied that he told her that the contract will be terminated. He stated that he does not leak office secrets and when he looked at Exhibit C8 he stated that this- is a personal letter to the Chairman. He testified further that he does not have a special relationship with the Claimant and after looking at paragraph 9 of Exhibit C2 he said that he agrees that the mobilisation of N2.25 million was for the procurement of the materials for the ballot boxes. He also s fated that he communicated to the Claimant that the contract will be terminated before Exhibit C5 was delivered to her.
This witness was not re-examined and with the conclusion of his evidence learned counsel for the Defendant closed the case for the Defence.

FINAL ADDRESSES
Written final addresses were ordered and counsel complied. The Defendant's written address is dated 29/J/08 while the Claimant's written address is dated 25/2/08.

EXHIBITS
The following documents were tendered and admitted as Exhibits during the trial of this matter:-
1) Written Statement on Oath of the Claimant. Exhibit C1
2) Letter dated 8/1/04 Exhibit C2
3) Letter dated 9/1/04 Exhibit C3
4) Letter dated 10/3/04 Exhibit C4
5) Letter dated 12/3/04 Exhibit C5
6) Letter dated 7/4/04 Exhibit C6
7) Letter dated 4/2/04 Exhibit C7
8) Letter dated 23/3/04 Exhibit C8
9) Receipt dated 30/3/04 for Exhibit C9
N150/000.00 of the
10) Written Statement on Oath Claimant dated 12/5/06 Exhibit C10
11) Letter dated 28/1/04 Exhibit C 11
12) Letter dated 29/1/04 Exhibit C12
13) Letter dated 20/2/04 Exhibit C13
14) Letter dated 25/2/04 Exhibit C 14
15) Letter dated 9/3/04 Exhibit C15
16) 6 Nos Waybills Exhibits C16-C21

FACTS
From the pleadings and the oral and documentary evidence
before the court in this matter the facts are that the Claimant herein was contracted by the Defendant to supply to it 3,000 Ballot Boxes for the 2004 Local Government Elections in Lagos State for the total sum of N9/ OOO/ 000.00 (Nine Million Naira) calculated on the basis of N3,000.00 (Three Thousand Naira) per unit. She was given a mobilisation fee of N2.25Million to be utilised for the procurement of materials needed for the manufacture of the ballot boxes and delivery of the boxes was to be concluded not later than 29th February 2004. The delivery was expected to be made in batches. The Defendant later by Exhibit C14 conceded to the delivery date being not later than 4th March 2004 but the Claimant still failed to supply the said boxes within the specified time. Eventually the Defendant terminated the contract on the ground that the Claimant has failed to comply with the terms thereof and it asked the Claimant to refund the mobilisation fee advanced to the Claimant. She was aggrieved by this act of the Defendant and so "instituted this action in which the Defendant also counter claimed.

ISSUES FOR DETERMINATION
The Defendant's counsel formulated 5 issues for determination in his written address as follows:
1) Whether or not from the evidence before the court there is a breach of contract between the Claimant and the Defendant either by the Claimant or the Defendant.
2) Whether the termination of the contract between the Claimant and the Defendant is justifiable in law.
3) Whether nor there was a valid variation of the contract by the Parties.
4) Any proof of any special damages to enable (entitle) either the Claimant to judgment or the Defendant to judgement.
5) Whether the Claimant or Defendant is entitled to award of general damages.

Learned counsel for the Claimant formulated the following issues for determination in its written address:
1. Whether the Claimant has proved its case on the balance of probability to be entitled to the reliefs by it.
2. Whether the Defendant has proved its case on the 6alance of probability to be entitled to the relief claimed by it in the counter-claim.
I will adopt the issues as formulated by learned counsel for the Defendant as they seem to be appropriate in the circumstances. In doing so however I shall certainly consider the arguments advanced by learned counsel for the Claimant in his written address.

ISSUES 1,2 AND 3
1) Whether or not from the evidence before the court there is a breach of contract between the Claimant and the Defendant either by the Claimant or the Defendant.
2) Whether the termination of the contract between the Claimant and the Defendant is justifiable in law.
3) Whether nor there was a valid variation of the contract by the Parties.

Both counsel have agreed in their respective written addresses that there existed between the parties herein a valid contract and as correctly submitted by learned counsel for the Claimant it is neither the duty nor the place of a court of law to make a contract for the parties. All a court of law can do is to enforce the terms of the contract that both parties willingly entered into and it will not allow any party to read into-a contract a term which was not agreed to by both parties. See ABDULLA1 BABA VS NCATC AND ANOR 1991 5 NWLR (PT 192) 388 AT 437. Learned counsel for the
Defendant in his written address has argued that the Claimant has breached the contract between the parties in that there was a lapse of security over the ballot boxes and the said boxes were supplied within the lime stipulated by the contract. Learned counsel for the Claimant on the other hand has argued that the Defendant unilaterally varied the terms of the contract by its acceptance of 750 boxes and by changing the purpose of the mobilisation paid.
In Exhibit C2 which is the letter of offer to the Claimant which is dated 8/1/04 the Defendant offered the Claimant the contract to supply 3000 ballot boxes under the following terms, and I will reproduce part of the said Exhibit hereunder as follows:-
'Further to your quotation for the supply of aluminium ballot boxes dated 10TH March 2003,1 wish to inform you that the commission has approved your proposal for the supply of the aluminium ballot boxes at the unit price of N3,000 under the following terms:
i. Approved to supply 3000 No aluminium ballot boxes at the rate of N3, 000.00 per unit amounting to N9million.Thepayment of VAT and withholding tax are included in his award.
ii. Guarantee of adequate security during the production of the ballot boxes up to the point of their delivery to the Commission.
ix. On satisfactory fulfilment of the conditions as stated above/ the commission would pay 25% of the total sum i.e.N2.25 million to your company as mobilization tee. The fund will be utilized for the procurement of material need to the manufacture of the ballot boxes.
x. Immediate commencement of the production as the delivery of all the boxes must be concluded not later than 29th February 2004. You are also expected to deliver the boxes as they are produced to the commission.
(Underlining is mine.)
The Claimant by Exhibit C3 accepted the above terms and is therefore bound to comply with them. In Exhibit C14 however the issue of 750 boxes was raised for the first time and therein the delivery date for that amount of boxes was extended till 4/3/04. By the contents of Exhibit C21 however the fast batch of 132 ballot boxes were not delivered by the Claimant until 10/3/04 which is outside the time stipulated in Exhibit C14 I therefore fail to see the point in the argument of learned counsel for the Claimant on this issue as the contents of the above letters are very clear and none
of the parties can give evidence to vary same. So the evidence of the Claimant notwithstanding the written agreement between the parties was that the Claimant was to deliver 750 ballot boxes covered by the advance payment made to the Claimant on or before Thursday 4th March 2004 or refund the said advance payment made. The Claimant by Exhibits C20 and C21 supplied a total of 233 boxes after the said due date and the Defendants accepted them from her so it has waived its right to ask for a refund of the advance payment made to the Claimant. If was really serious in wanting its money back it would have given instructions to the Stores Officer to reject the late delivery. DW1 has testified that they did not return the bad boxes to her so they accepted them which act does not support the averment of the Defendant in paragraph 26 of the Amended Statement of Defence and Counter claim.
Where the terms and conditions of a contract have not been complied with it follows that it' can be terminated by either party that is aggrieved by this inaction that has brought about the breach. In paragraphs 24, 25 and 26 and 27 of its Amended Statement of Defence and Counter claim dated 21/11/05 the Defendant averred as follows;
24. Further to paragraph 21 above the Managing Director of the Claimant was specifically advised by the Defendant's Commissioner Pedro to see the secretary to the Commission for official notification of non compliance and revocation even after the said Mr Pedro had directly informed the Claimant's Managing Director of the Defendant's decision.
25. That between TP March 2004 and the time when the Claimant admitted it was officially informed of the revocation, it claimed it had intensified her rate of production of the boxes. The Defendant however limited itself to accepting delivery of the 750 ballot boxes covered by the amount of money advanced that is N2.25 Million.
26. The Defendant naturally rejected the additional 181 ballot boxes attempted to be foisted on it by the Claimant because they did not comply with agreed specification and were of no value to the Defendant as they were attempted to be supplied outside the agreed timeframe.
27. In the light of all the breaches of the terms of the contract by the Claimant in spite of various encouragement and concessions granted by the Defendant, the Claimant frustrated the contract and the Defendant had no choice but to formally revoke same for record purposes. The Defendant will rely on the letter dated 12th March 2004 in this regard at the trial.

The Claimant in paragraph 9 of her reply averred as follows:-
9. In answer to the averments in paragraphs 23 and 24 of the Amended Statement of Defence which are denied the Claimant avers that the only issue raised with its anaging Director was on the issue of non insertion of key rims to beautify the opening of the ballot boxes and' no other complaint. This issue was duly explained in the Claimant's letter of 23rd March 2004. Furthermore, the Defendant's Mr Pedro never informed the Managing Director of the Claimant’s Company before the receipt of the Defendant's letter that the contract would be terminated rather she was advised to see the Secretary of the Defendant Commission.”
It can be seen that the Defendant has itemised above in very clear terms the sins of the Claimant as it were vis-à-vis the contract between them. The Claimant is alleged to have (a) failed to supply the 750 boxes at the agreed lime; (b) failed to provide adequate security during the production and (c) has also failed to comply with the agreed specification. However, the only allegation proved against the Claimant from the evidence before this court is the delayed delivery of the boxes. The Defendant has not proved anything else. The evidence of DW1 is that he does not go to visit the place where the boxes are manufactured and DW2 testified that he visited the premises but appears not to have written any report of his visit as there is none before tills court. The letter of offer did not specifically mention that a certain type of key should be used for the ballot boxes neither is there any evidence before me that the premises where the Claimant was manufacturing the ballot boxes was insecure. The , defendant therefore cannot introduce terms into the contract that did not exist as at the time the offer was made. I therefore do not find the Claimant liable for those allegations.
I accordingly find that there was a valid contract between the arties which was validly varied by the Defendant. I find also that he Claimant breached the varied term of the centred by failing o supply all of the 750 ballot boxes within the specified period and o the termination was justified in law. Issues 1-3 therefore are resolved in favour of the Defendant.

ISSUES 4 AND 5
1) Any proof of any special damages to enable (entitle) either the Claimant to judgment or the Defendant to judgement.
2) Whether the Claimant or Defendant is entitled to award of general damages.
The evidence before this court does not sustain the Claimant’s claim for N2, 260, 000.00 being the cost of producing an additional 750 ballot boxes as it had already been paid mobilisation to Exhibit C14. This claim is therefore misconceived and cannot stand as the Claimant has not proved that it had supplied the total of 3000 ballot boxes before producing the 750 now claimed in this action. The Defendant on the other hand has also not proved the allegation that it had to re-award the contract for 500 ballot boxes so that claim is also misconceived. It follows therefore that neither party has proved their claims before the court in this matter so these 2 issues are resolved against both parties.

In conclusion therefore both sets of claims before me fail and are dismissed. I believe that the Justice of this case demands that each party should bear its own costs.


A.A. PHILLIP (MRS)
JUDGE
09/04/09