MAZIN ENGINEERING LIMITED

V.

TOWER ALUMINIUM (NIG.) LTD.

SUPREME COURT OF NIGERIA

SC.24/1989

MUHAMMADU LAWAL UWAIS, J.S.C. (Presided)

SALIHU MODIBBO ALFA BELGORE, J.S.C.
ABUBAKAR BASHIR WALI, J.S.C. (Read the Leading Judgment)
OLAJIDE OLATAWURA, J.S.C.
MICHAEL EKUNDAYO OGUNDARE, J.S.C.

FRIDAY, 18TH JUNE, 1993

APPEAL - Hearing of appeal - Parties and counsel absent but briefs filed - Brief
filed by only one party to the appeal - How such appeal treated - Order 6 r. 6
& 7, Supreme Court Rules 1985.

CONTRACT - Breach of contract - Breach caused by frustration - Whether liability

for damages arises.

CONTRACT - Breach of contract - Frustration resulting in breach - Liabilities of

parties.

CONTRACT - Frustration of contract - Effect of non-performance of remainder of

contractual obligations.

CONTRACT - Frustration of contract - Meaning and effect of.

CONTRACT - Frustration of contract - On what it depends.

CONTRACT - Frustration of contract - Whether excuses liability for breach

thereof.

CONTRACT - Performance of contract - When time is of essence thereof.

CONTRACT - Sale of goods contract - Delivery of goods - Whether time is

of essence.
[1993] 5 NWLRMazin Eng. Ltd. v. Tower Aluminium527

COSTS - Award of costs - Principles guiding.

DAMAGES - Breach of contract - Breach caused by frustration - Whether

liability for damages arises.

PRACTICE AND PROCEDURE - Costs - Award of- Principle guiding.

PRACTICE AND PROC ED URE - Hearing of appeal - Parties and counsel

absent but briefs filed - Brief filed by only one party to the appeal - How
such appeal treated - Order 6 r. 6 & 7, Supreme Court Rules 1985.

SALE OF GOODS - Contract for sale of goods - Delivery - When time is of

essence therein.

WORDS AND PHRASES - Frustration of contract - Meaning and effect of.

Issue:
Whether the doctrine of frustration applies thereby discharging the parties
from their contractual obligations in the circumstances of this case.

Facts:
The respondent is a manufacturer and importer of aluminium raw materials
for the Stucco Mill Finish type of Tower span corrugated roofing sheets. The
appellant who in March, 1983 had won a contract (Exhibit 7 in the
 proceedings)for the construction of a Warehouse/Factory for one Honeywell
Enterprises (Nigeria) Limited at Ibadan, Oyo State of Nigeria, approached the
respondent with the drawings of the warehouse/factory quotation for aluminium
roofing only. The respondent then made and submitted to the appellant quotation
No.8228/83TBP dated 29/4/83 based on its locally manufactured products. It was
stated therein by Exhibit 11 dated 29/4/ 83 that delivery would be effected within
14 days.
As a result of further discussions between the parties, the appellant by letter
dated 17th June, 1983 (Exh. 13) requested the respondent to provide a fresh
quotation using the same date as the one used in the preparation of the first
quotation (i.e. Exh 11), but with 0.55 mm beige aluminium sheets only. On 22nd
June, 1983. The respondent furnished the plaintiff with a new quotation as
requested. It was stated therein that delivery would be effected in four (4)
months. The revised quotation was accepted by the appellant and it made
immediate advance payment of the sum of N15, 000.00 (Fifteen Thousand Naira)
to the respondent vide Receipt Exh. 2 dated 22- 6-83. It was made clear to the
appellant during negotiations that beige finish aluminium corrugated roofing
sheets would have to be imported after it had rejected the first quotation (Exh.
11) based on local materials. The Respondent immediately thereafter sent telex
messages (Exhibit 17) to its overseas suppliers in Belgium, and proceeded to
process Form "M" for the necessary foreign exchange and also applied for import
licence to cover the importation as required by law.
When it appeared to the defendant that because of the delay in obtaining
528Nigerian Weekly Law Reports26 July 1993

government approval for Form M and import licence, it would not be possible to
deliver the beige aluminium sheets within the 4 months stipulated in Exh. 1, it
caused a letter Exhibit 6 dated 11th October, 1983 to be written to the appellant
explaining the situation. In it, it offered apologies for the delay and stated that it
was then expecting delivery in February 1984. The respondent however made it
clear in Exhibit 6 that it was in a position to supply Alcolux green or Stucco mill
finish immediately as an alternative if acceptable to the appellant. Exhibit 6 was
written before the 4 months period stipulated in Exh. 1 expired. The appellant on
receipt of Exh. 6 simply regretted the inability of the respondent to deliver in 4
months and demanded the refund of the N15, 000.00 advance or deposit by a
certified bank draft. The money was paid back on 24/10/83.
The appellant subsequently sued the respondent claiming the sum of
N33,886.56 (Thirty Three, Thousand, Eight Hundred and Eighty Six Naira, Fifty
Six Kobo) being general and special damages for breach of contract of sale.
Alternatively, the plaintiff claimed the aforesaid sum of money as damages against
the defendants for negligent misrepresentation of the date of delivery.
At the end of the trial, the learned trial Judge found that the contract was
frustrated by the subsequent and intervening events and so dismissed the plaintiffs
claims.
 The plaintiff appealed to the Court of Appeal which dismissed the appeal.
Being dissatisfied the appellant appealed to the Supreme Court.

Held (Unanimously dismissing the Appeal):

1.On When time is of essence in the performance of contractual obligations -

Unless time is indicated in a contract, it is presumed that the
performance will only be within a reasonable time, all parties having fulfilled
their respective obligations under it for example payment of money etc. But
where the parties expressly stipulate time of performance, or if time is not
indicated in the contract but after some delay the other party notifies that he
would like full performance within a specified time and it is clear by the
circumstances surrounding the contract, due to its very nature, that it is
essential and imperative that an agreed date is strictly adhered to, then in such
cases, time will be of essence. (P 538,paras. E-F)

2.On Whether time is of essence in delivery in a contract for sale of goods -

In ordinary commercial contracts for the sale of goods the rule
is that time is prima facie of the essence with respect to delivery. (P.538, paras.
D-E)

3.On When time is of essence in contract for sale of goods -

Time is only taken to be of essence in a contract for sale of goods
in the following circumstances:-
(a)Where the parties expressly stipulates it to be so in the contract;
[1993] 5 NWLRMazin Eng. Ltd, v. Tower Aluminium529
(b)Where one of the parties to the contract has been guilty of undue
delay in performing his own part and is notified by the other party that
unless performance is completed within a reasonable time, the contract will
be regarded as breached; and
(c)Where, by the nature of the surrounding circumstances or the
subject matter it is imperative that the agreed date should be strictly
adhered to.
(P.538, paras. H-A)

4.On Meaning and effect of frustration of contract -

Frustration of contract is the premature determination of an
agreement between parties lawfully entered into and in course of operation
at the time of its premature determination, owing to the occurrence of an
intervening event or change of circumstances so fundamental as to be
regarded by law both as striking at the root of the agreement, and as
entirely beyond what was contemplated by the parties when they entered
into the agreement. However, frustration does not occur where:-
(a)the intervening circumstance is one which the law would not regard as
so fundamental as to destroy the basis of the agreement;
(b)the terms of the agreement show that the parties contemplated the
possibility of such an intervening circumstance arising;
(c)one of the parties had deliberately brought about the supervening
event by his own choice
Where frustration arises, it operates to bring the agreement to an
end as regards both parties forthwith and quite apart from their
violation. (P.534, paras. E-H)

5.On What frustrations of contract depends on -

In most cases, frustration depends on the true construction of
the terms of the contract read in the light of the relevant circumstances
when the contract was entered into. (P.537, paras. C-D)

6.On Whether frustration negatives breach of contract -

Where a contract has been frustrated, the question of breach
will not arise, as none of the parties can be held responsible for what has
happened. The appellant in this case will not be entitled to any damages save
the amount of money it paid to the respondent and which it had already
collected when it treated the contract as abrogated by the intervening
event. (P.534, paras. G-H)

7.On Effect of frustration on performance of contract -

Where a contract is frustrated, further performance is
excused only if:
(a)the frustration occurs before the breach of the contract.
(b)the frustration is without the fault of either party, and
530Nigerian Weekly Law Reports26 July 1993
(c)the frustration is due to a fundamental change of the circumstances
beyond the control and original contemplation of the parties. (P.537,
paras. C-D)
Per WALI, J.S.C. at page 537, paras. D-F:
"From the facts and circumstances prevalent in this case, it
can be implied that the delivery of the iron sheets within the
time estimated would be subject to the approval of Form 'M'
by the Central Bank of Nigeria to enable the respondent
import the required components in time, which were then
under the list of classified items for importation purpose. This
was a condition precedent which the respondent must meet if
 it was not to break the Regulations. See Tsakiroglou & Co. Ltd.
v. Noblee & Thorl G.M.B.H. (1961) 2 All E.R 179; Morgan v.
Manser (1947) 2 All E.R 666; and Unger v. Preston
Corporation (1942) 1 All E.R. 200. There was such a change of
circumstances in this case and the contract looked at as a
whole, must be considered as frustrated by reasons of the
events."

8.On Principle guiding award of costs -

The general practice is that costs will follow the event and a
successful party is entitled to costs. The award of costs is
within the discretion of the court and it must be exercised
judiciously. [The Queen v. The Governor in Council, Western
Region (1962) 1 SCNLR 442; Lawal v. Ijale (1967) NMLR 135
referred to]. (P.541, paras. B-C).

9.On Treatment of appeal where briefs have been filed by one or both
parties but parties and counsel absent on date of hearing -
Per OLATAWURA, J.S.C. at page 541, paras. C-D:
"When this appeal was listed on 7th October, 1992 for
hearing, it was as a result of the motion Filed by the appellant
for the accelerated hearing of the appeal. As at the time the
appeal was heard, both parties were absent and not
represented. Notwithstanding the fact that the appellant's
brief was filed on 2nd March 1989, the respondent did not file
any brief. It appears to me that Order 6 rules 6 and 7 are
being abused as a result of deliberate absence from court on a
date an appeal is fixed for hearing. Notwithstanding the filing
of briefs the Court is still at liberty to ask questions in respect
of submissions or arguments contained in the said briefs. This
is to assist the Court in arriving at a just decision."

Nigerian Cases Referred to in the Judgment:

Adenaiya v. Gov-in-Council, W/R(1962) 1 SCNLR 442
Amadi v. Thomas Aplin & Co. Ltd.(1972) 1 All NLR (Pt.l) 413
Lawal v. Ijale(1967) NMLR 135
[1993] 5 NWLRMazin Eng. Ltd, v. Tower Aluminium531

Foreign Cases Referred to in the Judgment:

Cricklewood Property & Investment Trust Ltd.v. Leightons
Investment Trust Ltd.(1945) 1 All E.R. 252
 Denny, Mott & Dickson Ltd.v. James B. Fraser & Co. Ltd.(1944)
A.C. 265
Morgan v. Manser (1947) 2 All E.R 666
Tsakiroglou & Co. Ltd. v. Noblee & Thorl G.M.B.H (1961) 2 All E.R
179
Unger v. Preston Corporation(1942) 1 All E.R. 200.

Nigerian Statute Referred to in the Judgment:

Sale of Goods Law, 1959, S.10(l)

Nigerian Rule of Court Referred to in the Judgment:

Supreme Court Rules, 1985 (as amended) 0.6 rr. 6& 7

Book Referred to in the Judgment:

Cheshire and Fifoot Law of Contract, 9th Ed, p.531

Appeal:
This was an appeal against the judgment of the Court of Appeal
which affirmed the decision of the High Court dismissing the appellant's
claims. The Supreme Court in a unanimous decision dismissed the
appeal.

History of the Case:

Supreme Court:
Names of Justices that sat on the Appeal:Muhammadu Lawal
Uwais, J.S.C. (Presided), Salihu Modibbo Alfa Belgore, J.S.C.;
Abubakar Bashir Wali, J.S.C. (Read the Leading
Judgment), Olajide Olatawura, J.S.C.; Michael Ekundayo
Ogundare, J.S.C.
Appeal No:S.C. 24/1989
Date of Judgment:Friday, 18th June, 1993
Names of Counsel:Parties absent and unrepresented
 Court of Appeal:
Division of the Court of Appeal from which the Appeal was
brought: Court of Appeal, Lagos.
Names of Justices that sat on the Appeal:Adenekan Ademola,
J.C.A. (Presided): Uthman Mohammed, J.C.A.; Idris Legbo
Kutigi, J.C.A. (Read the Leading Judgment).
Appeal No:CA/L/58/86
Date of Judgment:Monday, 29th June, 1987
Names of Counsel:Babatunde Oshilaja - for the Appellant
K. M. Onigbanjo (with him, Adeyemi Ajayi) - for the Respondent.

High Court:
Name of the High Court:High Court, Ikeja.
Name of the Judge:I.O. Agoro, J.
Suit No:ID/785/83
532Nigerian Weekly Law Reports26 July 1993(Wali, J.S.C )

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Date of Judgment: Wednesday, 13th March, 1985.

Names of Counsel: E.O. Oshilaja - for the Plaintiff
Adeyemi Ajayi - for the Defendant

Counsel:
Parties absent and unrepresented.
WALI, J.S.C. (Delivering the Leading Judgment): By a Writ of summons taken
out in the Lagos State High Court, Ikeja Judicial Divisions, the plaintiff claimed
against the defendant as follows:-
"The sum of N33,886.56 (Thirty Three Thousand, Eight Hundred and
Eighty Six Naira, Fifty Six Kobo) being general & special damages for
breach of contract of sale.
Particulars
(i) Contract price for Honeywell
Enterprises (Nig.) Ltd. N 135,000.00
(ii) Quotation / acknowledgement
of Order from defendant 102,375.55
(iii) General damages and loss
of profits 32,624.45
(iv) Special damages wasted expenses 1,262.11
N33,886.56
Alternatively, the plaintiff claims the aforesaid sum of money as
damages against the defendants for negligent misrepresentation of the
date of delivery."
The plaintiff's claims were denied by the defendant. Pleadings were ordered,
amended, exchanged and filed and issues joined.
At the end of the trial, the learned trial judge I.O. Agoro, J, found that the
contract was frustrated by the subsequent and intervening events and so dismissed
the plaintiffs claims.
The plaintiff appealed to the Court of Appeal, Lagos Division against the trial
court's decision. The Court of Appeal also, after hearing arguments for and against
the appeal, dismissed it and affirmed the judgment of the trial court.
The plaintiff has now further appealed to this Court.
In compliance with Order 6 rule 5(1) of the Supreme Court Rules, (1958) (as
amended), the plaintiff filed a brief of arguments, and up to the date the appeal was
heard, the defendant as respondent did not, in compliance with Order 6 rule 2 of the
said Rules, file any brief of arguments. As a result the appeal was heard on the
plaintiff's brief only.
Henceforth the plaintiff and the defendant will be referred to in this judgment
as the appellant and the respondent respectively. It is to be noted that on the date the
appeal came up for hearing, none of the parties or their representatives appeared in
Court.
Based on the five grounds of appeal filed by the appellant in this appeal, the
following 5 issues were formulated in the appellant's brief for determination by this
Court:-
[1993] 5 NWLRMazin Eng. Ltd, v. Tower Aluminium(Wali, J.S.C )533

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"(1)whether the appellant unilaterally terminated the contract (exhibit 1) by itself

in writing their letter exhibit 9 or whether the respondent anticipatorily breached
the contract (exhibit 1) by their letter (exhibit 6) and whether such anticipatory
breach is nonetheless a breach of contract in law as pleaded by appellant in their
paragraphs 8 and 9 of amended statement of claim.
(2)Whether the rule of law enunciated in Hedley Byrne Co. Ltd v. Heller &
Partners Ltd. (1963) 2 All E.R 575 and applied in Esso Petroleum Co.
Ltd v. Mardon (1976) 2 WLR 583 at 593-595,601 - 602 and 605-607 regarding
negligent misrepresentation is applicable to the forecast of the date of delivery as
contained in the contract document exhibit 1 prepared by the respondent in this
case.
(3)Whether the doctrine of frustration applies to the case in this appeal thereby
discharging the parties from their contractual obligations in the circumstances of
this case.
(4)Whether the contents of the contract document (exhibit 1) may be
contradicted, altered, added to or varied by oral evidence.
(5)Whether or not the appellants are entitled to damages in the circumstances of
this case and the quantum of damages applicable in such eventuality."
But before going into the argument and submissions, I think it is pertinent
to state the facts of the case, and in doing so I shall adopt the facts as produced in
the judgment of the Court of Appeal which are as follows:-
"The respondent is a manufacturer and importer of aluminium raw
materials for the Stucco Mill Finish type of Towerspan Corrugated
Roofing Sheets. The appellant who in March, 1983 (see Exh.7) had
won a contract for the construction of Warehouse/Factory for one
Honeywell Enterprises (Nigeria) Limited at Ibadan, Oyo State of
Nigeria, approached the respondent with the drawings of the
warehouse/factory quotation for aluminium roofing only. The
respondent then made and submitted to the appellant quotation
No.8228/83TBP dated 29/4/93 based on its locally manufactured
products. It was stated therein that delivery would be effected within
14 days (see Exh. 11 dated 29th April, 1983). As a result of further
 discussions between the parties, the appellant by letter dated 17th
June, 1983 (Exh. 13) requested the respondent to provide a fresh
quotation using the same date as the one used in the preparation of
the first quotation (i.e. Exh 11), but with 0.55 mm beige aluminium
sheets only On 22nd June, 1983 the respondent furnished the
plaintiff with a new quotation as requested (see Exh 1. Quotation
No. 8228/83/TBP (REVISED) dated 22-6-83). it was stated therein
that delivery would be effected in four (4) months. Evidently exhibit
1 was accepted by the appellant as it made immediate advance
payment of the sum of N15,000.00 (Fifteen Thousand Naira) to the
respondent vide Receipt Exh. 2 dated 22- 6-83. It was apparently
made clear to the appellant during negotiations that. Beige Finish
Aluminium Corrugated Roofing Sheets would have to be imported
after it had rejected the first
534Nigerian Weekly Law Reports26 July 1993(Wali, J.S.C )

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quotation (Exh. 11) based on local materials. Respondent immediately

thereafter sent telex messages to its overseas suppliers in Belgium (see
Exh 17) and proceeded to process Form "M" for the necessary foreign
exchange and also applied for import licence to cover the importation
as required by law. When it appeared to the defendant that because of
the delay in obtaining government approval for Form M and import
licence, it would not be possible to deliver the beigealuminium sheets
within the 4 months stipulated in Exh. 1, it caused a letter Exh. 6 dated
11th October, 1983 to be written to the appellant explaining the
situation. In it; it offered apologies for the delay and stated that it was
then expecting delivery in February 1984.The respondent however
made it clear in Exh. 6 that they were in a position to
supply Alcoluxgreen or Stucco mill finish immediately as an
alternative if acceptable to the appellant. It should be noted that Exh. 6
was written before even the 4 months period stipulated in Exh. 1
expired. From 22/6/83 to 11/10/83 is clearly less than 4 months.
The appellant on receipt of Exh. 6 simply regretted the inability
of the respondent to deliver in 4 months and demanded the refund of
the N15,000.00 advance or deposit by a certified bank draft (see the
 letter Exh. 9 dated 20th October, 1983). The money was paid back on
24/10/83."
I think the main and decisive issue in this appeal is Issue No.3 dealing with
frustration of the contract the subject of litigation in the case.
In the English case of Cricklewood Property & Investment Trust
Ltdv. Leightons Investment Trust Ltd.(1945) 1 All E.R. 252, Viscount Simon, L.J.,
defined frustration as follows at page 255 of the Report:-
"Frustration may be defined as the premature determination of an
agreement between parties lawfully entered into and in course of
operation at the time of its premature determination, owing to the
occurrence of an intervening event or change of circumstances so
fundamental as to be regarded by law both as striking at the root of the
agreement, and as entirely beyond what was contemplated by the
parties when they entered into the agreement. If therefore the
intervening circumstance is one which the law would not regard as so
fundamental as to destroy the basis of the agreement, there is no
frustration. Equally if the terms of the agreement show that the parties
contemplated the possibility of such an intervening circumstance
arising, frustration does nor occur. Neither of course, does it arise
where one of the parties had deliberately brought about the
supervening event by his own choice...... But where it does, frustration
operates to bring the agreement to an end as regards both parties
forthwith and quite apart from their violation."
It is common ground that the parties entered into the contract for the supply for
"Towerspan Aluminium Corrugated Roofing Sheet" (Beige finish) and accessories.
It is deducible from the documents exhibited particularly Exhibits 4 and 5, the
contract was partly in writing and partly oral, as both Exhibits 4 and 5 spoke of
further discussions. Exhibit 1 is the revised quotation of the respondent to the
[1993] 5 NWLRMazin Eng. Ltd, v. Tower Aluminium(Wali, J.S.C )535

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H
appellant based on Exh. 13. Except in Exh. 1, the revised quotation, none of the
exhibits tendered in this case fixed the delivery time of 4 months. Even in Exh. 1
the time of delivery was not specifically made of the essence of the contract and
this is borne out by Exh. 3 in which the appellant wrote to its client Honeywell
Enterprises Limited on 24-8-83 intimating them of the position of the supply of
the roofing sheets of the type mentioned in Exh. 13. Part of Exh. 3 reads thus-
"As I indicated to you in the beginning, there is a time lag of four
(4) months from the time of a firm order for the beige coloured
roofing sheet and cladding.
Though the order was placed for the above in mid-June 1983, the
manufacturers hope to supply the sheets around mid-September,
1983, which would enable us to complete the roofing and cladding
at the end of September, 1983."
The portion or Exh. 3 (supra) shows that the appellants were hoping to receive
the supply of the sheets around mid September 1983; and this goes to confirm
that the period fixed in Exh.l was only tentative. See Section 10(1) of the Sale of
Goods Law 1959.There is no express stipulation that the iron sheets must be
delivered on any particular date. The best construction that one can put on the 4
months time for delivery contained in Exh. 1 is that the respondent promised to
deliver the goods with in that time. SeeAmadiv. Thomas Applin & Co. Ltd.(1972)
1 AllNLR(Pt.l) 413.
In my view the learned trial judge's findings on the issue on the evidence
before him that: -
"While it is conceded on the authorities that in ordinary commercial
contracts for the sale of goods the rule is that time is prima
facieof the essence with respect to
delivery; Hartelyv. Hymans(1920) 3 K.B. 475 at page 484; but in
the case in hand it must be realised that the raw materials for the
manufacture of the Beige Aluminum Roofing Sheets were to be
imported from overseas under licence. I am satisfied from the
evidence of Mr. Agobe and Exhibits Nos. 15, 16, 17, 18 and 19 and
hold as a fact that the defendant company used its best endeavours
without success to obtain approval of Form' M ' for the said raw
materials from the Central Bank of Nigeria which is an agent of the
Federal Government of Nigeria. In the circumstance, I have come to
the conclusion that failure by the defendant company to obtain
approval of Form 'M' for painted Aluminium Coil was an event
which frustrated the agreement between the plaintiff and the
defendant; Re Anglo-Russian Merchant Traders, Ltd(1917) 2 K.B.
678."
cannot be faulted. The Court of Appeal was equally right on the same issue when
it opined that -
"I have carefully read through Exh. 1 and there is nothing in it
which shows that time is of the essence of the contract".
 Time is only taken to be of the essence of the contract under the following
conditions -
1.Where the parties expressly stipulate it to be so in the contract
2.Where one of the parties to the contract has been guilty of undue delay in
performing his own part and is notified by the other that
536Nigerian Weekly Law Reports26 July 1993(Wali, J.S.C )

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unless performance is completed within a reasonable time, the

contract will be regarded as breached; and
3.Where by the nature of the surrounding circumstances or the subject matter it is
imperative that the agreed dated should be strictly adhered to.
See Cheshire & Fifoot on the law of contract (9th Edition) page 531.
None of these condition is present in this case.
On the issue of frustration, there is evidence examined and accepted by the
learned trial judge that the components of the materials required to manufacture the
type of sheets required by the appellant was to be imported from overseas and to
import them the respondent has to open a letter of credit and to apply for Form "M"
from the Central Bank of Nigeria. See the evidence of D.W. 1 where he said:-
"The coloured roofing sheets were imported from abroad. We gave the
plaintiff delivery period of about 4 months.
Prior to preparing Exhibit No. 1 we had earlier placed orders for coloured
roofing sheets with suppliers abroad. These are the relevant papers from our
overseas partners, now admitted as Exhibits Nos. 15 and 16.
The plaintiff company paid the defendant the sum of N15, 000 as deposit. The
defendant then sent a telex message to the overseas supplier for coloured
roofing sheets. This is a copy of the telex message of 22/6/83, now admitted
as Exhibit No. 17.The defendant company also started processing From M
through U.B.A. Ltd. Ikeja Branch. We have not yet obtained approval for the
Form M which was submitted sometime in June 1983. The situation in the
country regarding restriction of importation of aluminium coils was
responsible for the non-approval of Form M.
 The defendant was not in a position to supply the beige roofing sheets because
Form M was not approved by the Central Bank of Nigeria";
and D.W.2 where he said -
"I was responsible for processing Form M on behalf of the defendant. On
7/6/831 lodged an application with U.B.A. Ltd., Ikeja Branch. This is an
acknowledgement copy of the letter, now admitted as Exhibit
No.18The Central Bank did not approve our Form M. in this particular
transaction."
and also that of D.W.3 where he also said:-
"I am the officer-in-charge Bill Department at U.B.A. Limited, Ikeja
Branch. I process applications for Form M.
The defendant company is one of our customers. The defendant had
previously processed many Form M applications which had been
approved.
Sometime on 7/6/83 the defendant company submitted an application
on Form M which was duly processed by the Bank. There was no
approval of the said Form M from our records.
The paper now shown to me is the covering schedule forwarded to
the Central Bank of Nigeria.
The document has been admitted as Exhibit No. 19."
[1993] 5 NWLRMazin Eng. Ltd, v. Tower Aluminium(Wali, J.S.C )537

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To show how anxious the respondent was to enable it meet the request of the
appellant within the time estimated, it even sent Exh. 17 to its foreign suppliers
to supply the item. This was in anticipation that the application of Form "M"
would be approved in time. When that did not happen and in reply to the
appellant's two letters, Exhibits 4 and 5, the respondent wrote Exhibit 3 to the
appellant explaining the cause of the delay. Parts of Exhibit 3 read thus
"The delay caused was primarily due to the non-availability of the
multi-beams purling which we now substitute with angle iron on the
monitor roof. As I indicated to you in the beginning, there is a time
 of four (4) months from the time lag of a firm order for the beige
coloured roofing sheets and cladding. Though the order was placed
for the above in mid June, 1983, the manufactures hope to supply
the sheets around mid September, 1983 which would enable us to
complete the roofing and cladding at the end of September, 1983."
Frustration depends, in most cases, on the true construction of the terms of the
contract read in the light of the relevant circumstance when the contract was
entered. It must be emphasized that where the contract is frustrated, further
performance is excused only if :-
(i)it occurs before breach of the contract,
(ii)it is without the fault of either party, and
(iii)it is due to a fundamental change of the circumstances beyond the control and
original contemplation of the parties.
From the facts and circumstances prevalent in this case, it can be implied that the
delivery of the iron sheets within the time estimated would be subject to the
approval of Form "M" by the Central Bank of Nigeria to enable the respondent
import the required components in time, which were then under the list of
classified items for importation purpose. This was a condition precedent which
the respondent must meet if it was not to break the Regulations. See Tsakiroglou
& Co. Ltd. v. Noblee & Thorl G.m.b.H(1961) 2 All E.R 179; Morgan
v. Manser (1947) 2 All E.R 666; and Unger v. Preston Corporation (1942) 1 All
E.R. 200. There was such a change of circumstances in this case and the contract
looked at as whole, must be considered as frustrated by reasons of the events.
The learned trial judge was in my view right when he found on the
evidence before him that:-
"I am satisfied from the evidence of Mr. Agobe and Exhibits Nos.
15,16,17,18 and 19 and hold as a fact that the defendant company
used its best endeavours without success to obtain approval of Form
'M' for the said raw materials from the Central Bank of Nigeria
which is an agent of the Federal Government of Nigeria. In the
circumstance, I have come to the conclusion that failure by the
defendant company to obtain approval of Form 'M' for painted
Aluminium Coil was an event which frustrated the agreement
between the plaintiff and the defendant: Re Anglo-Russian
Merchant Traders, Ltd.,(1917) 2 K.B. 679."
It cannot be said that the respondent was negligent or made any
misrepresentation to the appellant when the contract was entered into as the
evidence did not show that.
538Nigerian Weekly Law Reports26 July 1993(Wali, J.S.C )

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On the issue of breach, as I have said earlier in this judgment that, where there is
frustration the question of breach will not arise, as none of the parties can be held
responsible for what happens. The appellant in this case will not be entitled to any
damages save the amount of money it paid to the respondent and which it had
already collected when it treated the contract as abrogated by the intervening event.
On issue (e) in the appellant's brief, I will only say this- whether or not
paragraphs 3 and 4 of the appellant's (plaintiff's) amended Statement of Claim were
sufficiently denied, the appellant by its own action, had treated the contract as
determined by the circumstances and the intervening event, and since it was found
to have been frustrated by such circumstances and intervening events, the appellant
would not be entitled to any damages.
On the whole, I find no substance in this appeal and it is accordingly
dismissed.
The judgment of both the trial court and the Court of Appeal are hereby
affirmed.
There will be no order as to costs since the respondent neither filed a brief nor
appeared on the date the appeal was heard, nor did it even excuse itself for the non-
appearance.

UWAIS, J.S.C.: I have had the privilege of reading in draft the judgment read by
my learned brother Wali, J.S.C. I agree that the appeal has no merit and that it
should be dismissed.

Accordingly, the appeal is hereby dismissed and the decision of the Court of
Appeal is affirmed with no order as to costs.

BELGORE, J.S.C.: Unless time is indicated in a contract, it is presumed the

performance will only be within reasonable time, all parties having fulfilled their
respective obligations under it e.g. payment of money etc. But where the parties
expressly stipulate time of performance, or if time is not indicated in the contract
but after some delay the other party notifies that he would like full performance
within a specified time and it is clear by the circumstances surrounding the contract,
due to its very nature, that it is essential and imperative that an agreed date is
strictly adhered to, then in such cases, time will be of the essence.
As for non-performance, of the contract, this was due to failure to have
Central Bank of Nigeria approve the request on Form M. despite efforts of the
respondents.
 I agree therefore with the reasoning and conclusion in the judgment of Wali,
J.S.C., and I adopt them as mine in dismissing this appeal with no order as to costs
to the respondent who never appeared in this Court.

OLATAWURA, J.S.C.: My learnedbrother Wali, J.S.C. has succinctly stated the

facts and the issues raised in this appeal in the lead judgment. I agree with his
conclusions. I will elaborate only in respect of the only material issue, i.e.
frustration of the contract between the parties.
In the consideration of the evidence before the learned trial judge Agoro, J.
[1993] 5 NWLRMazin Eng. Ltd, v. Tower Aluminium(Olatawura, J.S.C )539

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the learned judge made some crucial findings.

These are:
(1)That during the negotiation of the contract and at the time Exhibit 1 -
Quotation for beige roofing sheets was prepared, Aluminium sheets had been
placed under General Open Licence by the Federal Government of Nigeria.
(2)That the defendant/company had used its best endeavours without success to
obtain approval of Form M for the said raw materials from the Central Bank of
Nigeria which is an agent of the Federal Government of Nigeria.
(3)That failure by the Defendant/company to obtain approval of Form M for
painted aluminium coil was an event which frustrated the agreement between the
plaintiff and the defendant Re Anglo-Russian Merchant Traders Ltd (1917) 2
K.B. 679.
I believe it is on account of these findings that Mr. Oshilaja in the appellant's
brief raised the doctrine of frustration and whether it applies thereby discharging
the parties from their contractual obligations.
Mr. Oshilaja has submitted in the appellants brief that frustration occurs
under conditions that are totally out of the control of both parties. It is for the
 Court and not for the parties to determine whether an event constitutes a
frustrating event: Denny Mott & Dicksonv. James B. Fraser & Co. Ltd.(1944)
A.C. 265/272,274- 276". I entirely agree with this submission. If one takes into
account the evidence of D.W. 1, this evidence was not successfully discredited. It
was accepted by the trial judge. I quote excepts from his evidence in-chief and
under cross-examination:
".......The coloured roofing sheets were imported from abroad. We gave
the plaintiff delivery period of about 4 months
.......................................................................................................................
.
The defendant was not in a position to supply the beige roofing
sheets because Form M was not approved by the Central Bank
of Nigeria......................."
Under cross-examination the witness said:
"The restriction referred to in my letter, Exhibit N0.6 was approval
of Form M. We explained to the representative of the plaintiff that
the coloured roofing sheets would be imported from abroad; but
painted roofing sheets could be obtained locally. The plaintiff did
not want roofing sheets painted locally in Nigeria.
The delivery date of 4 months on Exhibit No. 1 was purely
speculative as it depended on the availability of coloured sheets
from abroad."
The evidence of D.W.2, Mr. Samuel Iwolu and D.W.3, Mr. Abiodun Adeosun
amply supported the evidence of D.W. 1, Mr Japheth Agobe. There can be no
doubt that Mr. Oshilaja is quite aware and is well familiar with the law governing
this doctrine of frustration, I think, with profound respect to the learned counsel,
that his misapplication led to a misunderstanding of the issue. It is therefore a
misconception of the facts and law that led to the submission of the learned
counsel for the appellant to the effect that "neither the importation of the
contracted goods nor the raw materials for its manufacture nor the duty of
obtaining import licence and approvalfor Form 'M' and foreign exchange for the
contracted goods was a condition precedent forming the foundation upon which
the contract was based".
540Nigerian Weekly Law Reports26 July 1993(Olatawura, J.S.C )

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These submissions over-looked the amended statement of defence where the
respondent averred thus:
"6. During the month of May, and the first half of June 1983 the plaintiff s
representatives Mr. J. Vyravipillai and one other person visited the premises
of the defendant to discuss further on this matter. Enquiries were made
about Beige Finish Towerspan Aluminium Corrugated Roofing Sheets.
7.At the meeting referred to above the defendant's representative Mr. J.O.J. Agobe,
the Technical Sales Engineer explained to the plaintiff's representatives the
problems his company was having about importing the Beige Finish Towerspan
Aluminium Corrugated Roofing Sheets and Accessories as well as some of her
other products which the defendant had already ordered from their oversea
suppliers in Belgium due to strict Federal Government Reg. due to strict Federal
Government Regium Licence and opening of Letters of Credit.
8.Notwithstanding the explanation given by the defendant in paragraph 7 above the
plaintiff by her letter Ref. JV/VNS/0683/61 dated 17th June, 1983 requested the
defendant to furnish her with a new Quotation for the Beige Finish Aluminum
Sheets. The defendant shall rely on this letter at the trial.
9.On the strength of the letter referred to above and the several discussions held
earlier with the plaintiff's representatives, the defendant prepared a new Quotation
No. 8228/83/TBP (Revised) dated 22nd June, 1983 the delivery dated of which was
speculatively put at 4 (four) months to the full understanding of the plaintiff.
11.On getting a deposit confirming the plaintiff's interest the defendant on the same
date the plaintiff paid quickly dispatched a message by telex to her oversea's
supplier requesting for the Order already placed to the enlarged to accommodate the
plaintiff's Order. The defendant shall rely on her copy of the Telex Message Ref.
136/ TAL/BNO/21/6/83 dispatched on 22/6/83.
12."The defendant says that the plaintiff was fully aware that the defendant does not
manufacture any coloured aluminium coil (raw material) which is required for the
manufacture of all Colour Finished Towerspan Aluminium Corrugated Roofing
Sheets locally and that the availability of these special products was dependent on
governmental approval for importation and remittance of money to defendant's
overseas suppliers:................................."
16. That import restrictions by the Federal Government, that is, problems of
Form 'M', opening of Letters of Credit, obtaining Import Licence were fully
brought to the knowledge of the plaintiff as 'conditions precedent' to the
performance of the said contract by the defendant during their several
discussions proceeding the contract. These factors were repeated in the
defendant's letter of sympathy and apology to the plaintiff dated 11th
October, 1983.................."
[1993] 5 NWLRMazin Eng. Ltd, v. Tower Aluminium(Olatawura, J.S.C )541

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I agree with the Court of Appeal (per Kutigi, J.C.A.) when the court said:
"The judge was also right when he held that while the duty of obtaining
import licence approval for Form M and foreign exchange for the goods
was on the respondent, the agreement between the parties must as a
whole be treated as made upon the assumption that the law and
regulation applicable to importation of goods from abroad would be
observed by the parties."
It is therefore well established therefor that on the contract between the parties
the defence of frustration is a good defence. I will also dismiss the appeal.
I now come to the question of costs. The general practice is that costs will
follow the event and a successful party is entitled to costs: The Queen v. The
Governor in Council, Western Region, ex parte Kasali Adenaiya (1962) 1
SCNLR 442. C (1962) 1 All NLR 300; Lawalv. Ijale (1967) NMLR 135, (1967)
5 N.S.C.C. 9. The award of costs is within the discretion of the court. It must be
exercise: judiciously. When this appeal was listed on 7th October, 1992 for
hearing, it was as a result of the motion filed by the appellant for the accelerated
hearing of the appeal. As at the time the appeal was heard, both parties were
absent and not represented. Notwithstanding the fact that the appellant's brief
was filed on 2nd D March 1989, the respondent did not file any brief. It appears
to me that Order 6 rules 6 and 7 are being abused as a result of deliberate absence
from court on a date an appeal is fixed for hearing. Notwithstanding the filing of
briefs the Court is still at liberty to ask questions in respect of submissions or
arguments contained in the said briefs. This is to assist the Court in arriving at a
just decision. These rules under Order 6 of the Supreme Court Rules, 1985 (as
amended) reads:
"(6) When an appeal is called and no party or any legal
practitioner appearing for him appears to present oral argument, but briefs
have been filed by all the parties concerned in the appeal, the appeal will
be treated as having been argued and will be considered as such.
(7) When an appeal is called, and it is discovered that a brief has
been filed for only one of the parties and neither of the parties concerned
nor their legal practitioners appeal to present oral argument, the appeal
shall be regarded as having been argued on that brief."
I agree with Wali, J.S.C. that the respondent is not entitled to costs. I will
therefore make no order as to costs.
OGUNDARE, J.S.C.: I have had the privilege of a preview of the judgment
just read by my brother Wali J.S.C., and I am in total agreement with his
reasoning's and conclusion. I have nothing more to add. I also dismiss the appeal.

Appeal dismissed