B OMOKRI JCA (Delivering the Lead Judgment): This is an appeal against the judgment of the High Court of Akwa Ibom State, sitting at Uyo, presided over by Hon. Justice P.S. Etim, in suit No. HU/37112000 delivered on 22 December 2005.

The respondent, Clement Akpan, who was the plaintiff before the C trial court, instituted proceedings against the appellant, Rev. (Dr.) Abel Damina, claiming at paragraph 13 (a) and (b) as follows:

1.    N355,OOO.OO (three hundred and fifty-five thousand) naira being balance of the contract fee owed to the plaintiff on completion of work and 21 % interest on the said amount till judgment is delivered.

The sum ofN500,000.00 (five hundred thousand naira) for breach of contract entered into with the plaintiff in November 1999 for painting of his residence, church offices and fence.

The respondent filed his writ and statement of claim on 13 November 2000, while the appellant filed his statement of defence on 20 February 2001. Pleadings were duly served and exchanged between the parties and the case was set down for hearing on 22 May 2001.

At the hearing the respondent testified for himself but called no other witness. The appellant himself did not testify but he called two defence witnesses, namely DWI, John Akwa and DW2, Michael Peterson.

At the conclusion of the hearing,  the learned trial Judge in a considered judgment, found for the respondent and ordered that the sum ofN260,000.00 (two hundred and sixty thousand naira) be paid by the appellant to the respondent as the outstanding balance of his contract fee between him and the appellant.

Dissatisfied with the judgment and orders of the trial court, the appellant appealed to this court on one ground subscribed in his notice of appeal dated 6 January 2006 and filed on 12 January 2006. By leave of this court granted on 4 October 2007, the appellant filed three (3) additional grounds of appeal. In all, the appellant filed a total of four grounds of appeal. The appellant’s brief was settled by Mr. Z. O. E. Nwosu Jnr.

From the four grounds of appeal, the appellant distilled three issues  for determination in his brief of argument dated the 24 October 2007, and filed on 28 February 2008, but deemed properly filed and served on 1 April 2008. The issues are as follows:

Whether the lower court was right in awarding the sum of N260,000.00 (two hundred and sixty thousand naira) as the A outstanding balance of the contract sum in respect of the contract between them when the said sum was not proved in evidence.

Whether the failure of the lower court to make a finding on whether the parties were ad idem both before and at the time  of execution of the contract influenced its judgment.

Whether a party to a contract is entitled to the contract sum when that party has failed to execute the contract according to specification.

The respondent in his undated brief, settled by Mr. H. U. Osutuk C Esq, filed on 13 February 2009 and deemed properly filed and served on 18 February 2009, formulated three issues. They are as follows:

(i) Whether there was a valid contract between the appellant and the respondent in respect of the painting of the appellant’s residence at Mbiabong, the offices and the fence of the Power Chapel International Church at Nwaniba Road, in Uyo, Akwa  Ibom State of Nigeria, the appellant’s church.

(ii) Whether the contract was executed according to terms and! or specification. That is, the required paint and completed on schedule.

(ill) Whether a party to a contract is entitled to the contract sum after the execution and on specification.

The appellant in his brief argued issues 1 and 3 together and issue 2 separately. On issues 1 and 2, learned counsel for the appellant, Mrs. Ada Okonkwo, who adopted the brief, contended that the court below was wrong in awarding the sum ofN260,000.OO (two hundred and sixty thousand naira) to the respondent as the unpaid balance of the contract sum of the contract F between both parties.

She contended that the paint the respondent used for the job was not the one agreed upon. She then pointed out that the paint agreed upon by the parties for the execution of the contract was rubberized paint but the respondent used a low quality paint called text code which is

emulsion paint mixed with sand. Learned appellant’s counsel referred to  page 36 of the record and relied on A. C.B. Ltd v. Gwagwada (1994) 5 NWLR (Pt. 342) 25 at 92; Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248; Henkel Chemicals (Nig.) Ltd v. A. G Ferrer & Co Ltd (2003) 4 NWLR (Pt. 810) 306 at 308 – 309, (2004) FWLR (Pt. 188) 1078 and Gwani v. Ebule (1990) 5 NWLR (Pt. 149) 201 at 214, and submitted that the parties  must be ad idem on the terms and conditions of the contract before it becomes enforceable.

She further contended that the parties were not in agreement as to:

what the contract sum was. While the respondent stated that the contract sum was N400,000.00 (four hundred thousand naira), the appellant stated that the contract sum was N 150,000.00 (one hundred and fifty thousand naira).

She pointed out that the respondent both in his statement of claim and in his evidence in court admitted that the only money he received in respect of the contract was the sum ofN45,000.00 (forty-five thousand naira) paid in two installments ofN15,000.00 (fifteen thousand naira) and N30,000.00 (thirty thousand naira) respectively.

In the course ofthe trial, exhibit 3 was tendered and admitted in evidence which is a receipt issued by the respondent acknow ledging receipt of the sum of N 140,000.00 (one hundred and forty thousand naira) as part payment of the contract sum paid by DW1, the appellants work’s manager.

It was submitted that the trial court ought to have taken the sum ofN45,000.00 (forty-five thusand naira) into consideration in computing the unpaid balance of the contract. Counsel relied on Bello v. Emeka (1981) 15; Kimdey v. Governor, Gongola State (1988) 2 NWLR (Pt. 577) 445 at 460 and Uzuegbu v. Progress Bank Ltd

(1988) 44 (Pt. 87) 236 at 250 and urged the court to disregard the finding of the trial court.

Relying on S.D.C. Cementation (Nig.) Ltd v. Nagel & Co. Ltd (2003) 4 NWLR(Pt. 811) 610 andACB Ltd v. Nnamani (1991) 4 NWLR (Pt. 186) 486 at 498, counsel submitted that courts are not to indulge in

speculation and conjecture. Counsel concluded that there is unchallenged evidence that the respondent did only 40% of the job, therefore the claim was not proved as required under section 135 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990.

Appellant referred to Dimlong v. Dimlong (1998) 2 NWLR (Pt. 538) 389 at 394; International Niger Building Construction Company Ltd v. Giwa (2003) 13 NWLR (Pt. 836) 69 at 118 and Mantee Water Treatment Nigeria Limited v. Petroleum (Special) Trust Fund (2007) 15 NWLR (Pt. 1058) 451 at 476, (2008) All FWLR (Pt. 439)499.

On issue No.2, the appellant contended that the appellant’s residence was to be painted free but the respondent claimed that the cost of painting it was N250,000.00 (two hundred and fifty thousand naira).

The appellant’s counsel then submitted that there cannot be a valid contract where the parties differ on the essential terms of the contract as it was held in J adesimi v. Egbe (2003) 10 NWLR (Pt. 827) 1 at 30 and Onyenma v. Amah (1988)

The respondent’s counsel, Mr. Osutuk, in the brief, argued issues 1 and 2 together and issue 3 separately. He submitted that the parties were ad idem as to the terms of the contract, the type of paint, the buildings to be painted and the amount, namely N250,OOO.00 (two hundred and fIfty thousand A naira) for the residence of the appellant and N 150,000.00 (one hundred and fifty thousand naira) for the church offices and fence making it a total of N400,000.00 (four hundred thousand naira). Counsel referred to Archtech

E. Claopa v. O.A. U. (1997) Vol. 5 1 LRCN 1598 at 1603; Alfotrin Ltd v. Attornf4Y General Federation & Anor. (1996) 9 NWLR (Pt. 475) 634, B (1996) Vol. 44 LRCN 2376 at 2381 and Yadis (Nigeria) Limited v. Great Nigeria Insurance Company Limited (2007) All FWLR (Pt. 370) 1348

On issue No.3, respondent’s counsel submitted that from exhibit 3, tendered by the appellant, the trial court arrived atN260,OOO.00 (two hundred and sixty thousand naira), as the balance payment due to the respondent. Counsel submitted also that a court has no authority to award more than what is claimed although it may award less.

He relied on J eric (Nig.) Ltd v. Union Bank of(Nig.) Plc (2000) 82 LRCN 3259 at 3265; Ekpenyong v. Nyong (1975) 2 SC 71; Obioma v. Olomu (1978) 3 SC 1; Okechukwu v. Onuorah(2000) 82LRCN3300 at 3304-5, (2001) FWLR (Pt. 33) 219 and D Yadis (Nig.) Ltd v. Great (Nig.) Insurance.

I have carefully examined the issues for determination formulated by the parties and in my considered view they are like two sides of the same coin and they can be conveniently taken together.

The central issue in contention is whether there was a valid contract  between the parties. For a contract to come into being in law, there must be a definite offer, by the offeror and a definite acceptance by the offeree and of course a legal consideration.

In otherwords, for a contract to exist, there must be an offer, unqualified acceptance of that offer and a legal consideration. There must be a mutuality of purpose and an intention. The two contracting F parties must agree. Dahiru v. Kamale (2001) FWLR (Pt. 62) 1853, (2005)

9 NWLR (Pt. 929) 8 at 50; Tsokwa Motors (Nig.) Ltd v. Union Bank of Nigeria Ltd (1996) 9 NWLR (Pt. 471) 129; NekaB.B.B. Manufacturing Co. Ltd v. African Continental Bank Ltd (2004) All FWLR (Pt. 198) 1175, (2004) 2NWLR (Pt. 858) 521.

An offer is an expression of readiness to contract on terms specified by the offeror which if accepted by the offeree will give rise to a binding contract. It is by acceptance that the offer is converted into a contract. Sparkling Breweries Ltd v. u.B.N. Ltd (2001) FWLR (Pt. 71) 1682, (2001)

15 NWLR(Pt. 737) 539; UBNv. Sax (Nig.) Ltd(1994) 8 NWLR(Pt. 361) H 150 and Omega Rank (Nig.) Plc v. OB. C Ltd (2005) All FWLR (Pt. 249) 1964, (2005) 8 NWLR(Pt. 928) 547.

No written agreement was tendered by the parties before the trial

A court. That means that the agreement was oral. An agreement can be oral or inferred from the conduct of the parties: Trade Bank Pic v. Dele M orenikeji (Nig.) Ltd (2005) 6 NWLR (Pt. 921) 309 . Notwithstanding the fact that the contract is oral, it is enforceable.

From the respondent’s statement of claim, at pages 3 – 5 of the

B record, particularly paragraphs 2, 3, 4, 5, 6 and his evidence in chief, it is clear that there was an offer made by the appellant to the respondent to paint the appellant’s residence at Mbiambong, Etoi, Uyo, the power chapel church offices and the church fence at No. 98 NwanibaRoad, Uyo. The parties discussed the colour to be used and agreed on the text cote paint

C manufactured by the resDondent. The parties discussed the cost and arrived at the following:

1.    N250,000.00 (two hundred and fifty thousand naira) for the painting of the residence of the appellant at Mbiabong, Etoi, Uyoand

N 150,000.00 (one hundred and fIfty thousand naira) for painting of the Power Chapel Church International Offices and Fence, bringing the total sum to N400,OOO.OO (four hundred thousand naira).

The appellant himself did not’ deny that there was an agreement. The only points of disagreement are:

1.    That the contract sum was N150,000.00 (one hundred and fifty thousand naira) for the church offices and fence

That the appellant residence at Mbiabong, Etoi, Uyo was to be painted free of charge

That the type of paint agreed upon was rubberized and not text cote.

The learned trial Judge satisfactorily resolved the above issues in his judgment at pages 88 – 93 of the record. In my view, the evidence adduced by the appellant did not support his defence to the action that the total contract sum was N 150,000.00 (one hundred and fIfty thousand naira). DW1 at page 57, lines 58 under cross-examination as follows:

Q:     In all, how much did you pay the respondent?

A:     N240,000.00 (two hundred and forty thousand naira), I can’l remember the amount.

Also at page 57, lines 20 – 26, DW1 under cross-examination stated as follows:

Q:

You told the court that the defendant paid the plaintiff about N230,000.00 (two hundred and thirty thousand naira) to N240,000.00 (two hundred and forty thousand naira), was the money paid receipted for?

A Ths     A

Q     If you see the receipt can you identify it?

A     Yes.

The evidence ofDW1 quoted above is at variance with the averments pleaded by the appellant under paragraphs 4, 5, 6,7 and 8 of the statement

of defence at pages 16 – 17 of the record. It is the law that evidence which B is at variance with the pleadings goes to no issue and should be disregarded and/or expunged from the record by the court: Iloabachie v. Iloabachie (2005) 9 NWLR (Pt. 930) 362 at 367 and 369; Obaloja v. Efikan (1998) 6 NWLR (Pt. 553) 320; Thompson v. Arowolo (2003) FWLR (Pt. 164) 315, (2003) 7 NWLR (Pt. 818) 163 and Ndoro v. Pianwii (2003) 5 NWLR (Pt. C 812) 137.

Moreover, in exhibit 3, which is the receipt tendered through the respondent, under cross-examination, at page 32 of the record, it is clearly and boldly written that the payment made therein, that is, the sum of NI40,000.00 (one hundred and forty thousand naira) is part payment of the total contract sum ofN400,OOO.OO (four hundred thousand naira).

Therefore, D by simple arithmetic, if the sum of N 140,000.00 (one hundred and forty thousand naira) is deducted from the total contract sum ofN400,000.00 (four hundred thousand naira), the unpaid balance is N260,000.00. This is what the trial Judge did at page 92 of the record. The trial Judge rejected

the evidence of the respondent that he was paid the sum of N45,000.00 E (forty-five thousand naira) in two installments of N15,000.00 (fifteen thousand naira) and N30,000.OO (thirty thousand naira) and accepted exhibit

3 in preference to the oral testimony of the respondent. Documentary evidence is usually a very reliable piece of evidence because of its permanency: Section 132 of the Evidence Act and Adeoti v. Ayorinde F (2001) 6 NWLR(Pt. 709) 336; Jackv. Whyte (2001) FWLR(Pt. 43) 247, (200 1) 6 NWLR (Pt. 706) 266. Documentary evidence is a veritable aid for assessing oral testimony: Whyte v. Jack (1996) 2 NWLR (Pt. 431) 407 and u.N.I.C v. u.c.I.c. Ltd (1999) 3 NWLR (Pt. 593) 17. In Jinadu v. Esurombi-Aro(2005) l4NWLR(Pt. 944) 142, this court held at page 192

thus:     G;

Where there is oral and documentary evidence, documentary evidence should be used as a hanger with which to asses oral testimony.”

The trial Judge was perfectly right to use exhibit 3 to resolve the issue of the total contract sum and the unpaid balance.

On the other terms of the contract, the evidence of the respondent is to the effect that he agreed to paint the appellant’s residence at Mbiabong, Etoi, Uyo for N250,000.00 (two hundred and fifty thousand naira) and the

A church offices and fence at the Power Chapel International Church at No. 98, Nwaniba Road, Uyo for N 150,000.00 (one hundred and fifty thousand) making a total ofN400,OOO.OO (four hundred thousand naira). The appellant alleged that his residence was to be painted for free in order to advertise the respondent’s product. From the evidence adduced at the trial, the case

B of the respondent was established and proved.

The witnesses of the appellant, DW1 and DW2 admitted clearly that they were not parties to the contract agreement and they were not present when the agreement was made between the parties. At pages, 56 lines 24 – 26. DWl stated as follows:

Under cross-examination

C     Q:     What was the agreed cost for painting both the church and the building at pastor’s house?

A:     N250,000.00 (two hundred and fifty thousand naira).

That piece of evidence contradicts the facts pleaded by the appellant in paragraph 7 of his statement of defence which is at page 17 of the D record, therefore, it is at variance with the averment that the contract sum was N 150,000.00 (one hundred and fifty thousand naira) only.

Moreover, DWS 1 and 2 having admitted that they were not parties to the agreement and they were not present when the agreement was made, their evidence as to the terms of the contract must be hearsay. Where the

E evidence of a witness is not direct but rather speculative and borders on hearsay, such evidence is inadmissible under the Evidence Act: Yusuf v. Obasanjo (2005) 18 NWLR (Pt. 956) 96 at 166 – 16, (2006) All FWLR (Pt. 294) 387.

A reasonable court of law or tribunal has the duty to avoid the

F admission or use of hearsay evidence as this will infringe section 91 (1 )(b) of the EvidenceAct, by a situation in which a witness will testify his evidence based on second-hand information by another person. Where a witness gives evidence on fact relying on information by another person, the evidence amounts to hearsay and would have no evidential value. A second-hand information is always regarded as worthless: Buhari v. Obasanjo (2005)

G All FWLR (Pt. 273) l, (2005) 2 NWLR (Pt. 910) page 241; Ezeazodosiako v. Okeke (2005) 16 NWLR (Pt. 952) 612.

Exhibit 3 tendered by the appellant actually favoured the respondent more. It showed clearly that the contract sum was actually N400,000.00 (four hundred thousand naira). In the face of exhibit 3, the appellant cannot H be heard to contend that the contract sum is N 150,000.00 (one hundred and fifty thousand naira) only.

The appellant cannot approbate and reprobate. The appellant also contended that the court ought to have deducted a further sum ofN45,OOO.OO (forty-five thousand naira) which the respondent admitted receiving.     A

Firstly, exhibit 3, is a documentary evidence. By virtue of section 132( 1) of the Evidence Act, 1990, oral evidence is not admissible to vary, contradict, alter or add to a written document: Adecentro Nigeria Limited v. Council, Obafemi Awolowo University (2005) All FWLR (Pt. 269)

1783, (2005) 15 NWLR (Pt. 948) 290.     B

Secondly, the trial court rejected the evidence of the respondent that

he was paid the total sum ofN45,000.00 (forty-five thousand naira) and accepted the evidence of the appellant, encapsulated in exhibit 3, which clearly Indicate that the respondent was paid the sum ofNI40,000.00 (one hundred and forty thousand naira).

The trial court having rejected the C evidence of the respondent cannot turn around to consider the same for the purposes of dedw· t: on to be made by the court in deciding the amount the respondent was paid. The trial Judge acted correctly and the decision is unassailable.

Thirdly, I observed that from the pleadings it was not the case of the appellant that he paid the sum ofN45,000.00 (forty-five thousand naira) in D addition to the sum ofN 140,000.00 (one hundred and forty thousand naira) stated in exhibit 3. Thus the submission of the appellant’s counsel is misconceived and speculative. It is an attempt to reap where he has not sown.

Lastly, the appellant contended that the respondent claimed the sum E ofN355,000.00 (three hundred and fifty-five thousand naira) at paragraph

13( a) of his statement of claim as the unpaid balance for the contract and

not N260,OOO.OO (two hundred and sixty thousand naira). Counsel contended that the sum ofN260,000.00 (two hundred and sixty thousand naira) was neither pleaded nor evidence adduced to support it and concluded that the F respondent did not prove his claim for N355,000.00 (three hundred and fifty-five thousand naira) and that the sum ofN260,000.00 (two hundred and sixty thousand naira) awarded as the balance of the contract is perverse. The submission of counsel does not represent the correct position of the Law.

The trial court found that the contract sum was N400,000.00 (four G hundred thousand naira) and it is so clearly and glaringly stated in,exhibit 3, tendered by the appellant.

The court deducted the sum ofNI40,OOO.00( one hundred and forty thousand naira) which the appellant said he paid the respondent vide exhibit 3, from the sum of N400,000.00 (four hundred thousand naira) and arrived at the sum ofN260,000.00 (two hundred and H sixty thousand naira).

Now, a trial court cannot award an amount in excess of the claim, but it may very well award a lesser amount: leric (Nig.) Ltd v. Union