CMB BUILDING MAINTENANCE & INVESTMENT CO. LTD v. USMAN (2020)

CMB BUILDING MAINTENANCE & INVESTMENT CO. LTD v. USMAN

(2020)LCN/14217(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, May 15, 2020

CA/A/617/2017

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

CMB BUILDING MAINTENANCE & INVESTMENT CO. LTD APPELANT(S)

And

MOHAMMED BELLO USMAN RESPONDENT(S)

RATIO

THE PURPOSE OF AN AMENDMENT TO A NOTICE AF APPEAL

The purpose of an amendment to a Notice of Appeal is to ensure that the complaint of the appellant against the proceedings appealed against are laid and ventilated before the Court. The law remains as provided for in Order 7 Rule 8 of the Court of Appeal Rules, 2016 that a Notice of Appeal may be amended by or with leave of the Court at any time. See the case of IKECHUKWU VS. NWOYE (2013) LPELR (22018) 1 at 13 and SOUTH ATLANTIC PETROLEUM LTD VS. MINISTER OF PETROLEUM RESOURCES (2013) LPELR (21892) 1 AT 17.
In the case of UNITY BANK PLC VS. MR. EDWARD BOUARI (2008) LPELR – 3411(SC) the Supreme Court reiterated as follows:
“As a matter of fact, an amended notice of appeal is certainly not a new notice of appeal. This is because and this is also firmly settled that an amendment, relates back to the date in which the document, was originally filed just like amended statement of claim….” PER IDRIS, J.C.A.

CONSTRUCTION OF DOCUMENTS IN DISPUTE BETWEEN PARTIES BY THE COURTS

When constructing a document in dispute between parties, the proper course is to discover the intention or contemplation of the parties and not to import into the contract ideas not potent on the face of the document. See AMADI VS. THOMAS APLION CO. LTD (1972) 7 N. S. C. C. 262. Where there is a contract regulating any arrangement between the parties, the main duty of the Court is to interpret that contract to give effect to the wishes of the parties as expressed in the contract document. See ODUYE VS. NIGERIA AIRWAYS LIMITED (1987) 2 NWLR (PT.55) 126. In the construction of documents, the question is not what the parties to the document may have intended to do by entering into that document, but what is the meaning of the words used in the document. See AMIZU VS. DR. NZERIBE (1989) 4 NWLR (PT.118) 755.
It is trite that the Court cannot impute in a document what is not there. See also the case of AHMED VS. CENTRAL BANK OF NIGERIA SUPRA. PER IDRIS, J.C.A.

WHETHER OR NOT GENERAL DAMAGES SHOULD BE SPECIFICALLY PLEADED

I would like to first look at situations wherein the Court can award general damages, special damages and pre-judgment interest. General damages need not be pleaded and proved. The award of general damages is at the discretion of the trial Court, which is based on what is considered adequate loss or inconvenience by a reasonable person which flows naturally, as generally presumed by law, from the act of the defendant. It does not depend upon calculation made and figure arrived at from specific items. amongst others. See the case of YALAJU-AMAYE VS. ASSOCIATED REGISTERED ENGINEERING CONTRACTORS LTD (1990) LPELR (3511) 1 AT 47; ROCKONOH PROPERTY CO. LTD VS. NITEL PLC (2001) LPELR (2951) 1 AT 11 – 12.
Also, in the case of DIAMOND BANK PLC VS. WELLCARE ALLIANCE LTD (2015) LPELR (40762) AT 27 – 28, the Honorable Justice Abba Aji, JCA (now JSC) stated: “The law is trite that where general damages are claimed if the issue of liability is established as in the present case, the trial judge is entitled to make his own assessment of the quantum of such general damages and on appeal, such damages will only be altered or varied if they were shown to be either so manifestly too high or so extremely too low or that they were awarded on an entirely erroneous estimate of the damages to which the plaintiff is entitled.”
It is well established that general damages need not be specifically proved whereas special damages must be strictly proved. See the case of AGUNWA VS. ONUKWE (1962) 1 ALL N.L.R. 537; see also ALHAJI OTARU & SONS LTD VS. IDRIS (1999) 6 NWLR (PT. 606) 33; (1999) 4 S.C. (PT. II) 87.
General damages are not the same as special damages, where one has to itemize and prove all issues being claimed. See also the case of UBN PLC VS. OMNIPRODUCTS(NIG.) LTD (2006) 15 NWLR (PT. 1003) Pg. 681, PARA. A – C.
This Court also held in ONYIAORAH VS. ONYIAORAH (2008) ALL FWLR (PT. 397) 152 AT 160, PARA. A (CA) thus: “Special damages must be claimed specifically and proved strictly and in cases of contract, cannot be claimed unless they are within the contemplation of both parties at the time of the contract.”
Further to the foregoing, the Supreme Court has established in the case of YALAJU-AMAYE VS. A.R.E.C. LTD (1990) NWLR (PT.145) 422; (1990) 6 S.C. 157 that general damages are such that the Court will award, in the absence of any yardstick with which to assess the award except by presuming the ordinary expectations of a reasonable man. PER IDRIS, J.C.A.

WHETHER THE COURT CAN SUO MOTU GRANT PRE- JUDGEMENT INTEREST

Now on the award of pre-judgment interest, claims more especially special claims like pre-judgment interest, are not awarded by a Court willy-nilly.
A Court cannot proceed to speculate or assume that a party is ordinarily entitled to relief. That party must plead sufficient facts and adduce credible and cogent evidence before the Court can award such a relief. See LADOJA VS. AJIMOBI (2016) 11 NWLR (PT. 1519) 88 AT 173 PARA G; DANIEL VS. INEC (2015) 9 NWLR (PT. 1463) 113 AT 157 PARA. A. By the very nature of pre-judgment interest (i.e. interest accruing on a judgment sum before judgment is entered), it presupposes that a party claiming it must place sufficient materials before the Court to show why he is so entitled. He must lead evidence not only to show that he is entitled to such interest but to show that the interest rate which he is claiming is the proper one. A Court cannot on its own without any reason or basis sufficiently established by a plaintiff, proceed to award pre-judgment interest at any rate in favour of that plaintiff. To do so would appear arbitrary and antithetical to the role of a Judge as an unbiased umpire who is to dispassionately resolve the dispute between parties based on the facts and evidence presented before it by the parties.
Much said, from the evidence before the Court, the Respondent has failed to adduce sufficient evidence or placed sufficient materials before this Court to warrant the grant of a Pre-judgment interest.
That is to say, that the need for evidence establishing that rate cannot be overemphasized. See the case of JULIUS BERGER (NIG.) PLC VS. T.R.C. B. LTD SUPRA. It is my considered view that the trial Court erred in awarding the pre-Judgment interest. The said award of pre-judgment interest by the trial Court is hereby set aside. PER IDRIS, J.C.A.

DUTY OF COURT IN GRANTING GENERAL DAMAGES

The law is settled in Nigeria that general damages are the loss which flows naturally from the defendant’s act and its quantum need not be pleaded or proved as it is generally presumed by law. The trial Court in assessing damages however must observe some protocols some of which are that: (a) the trial Court must not act under a mistake of law: (b) the trial Court must not act in disregard of known principles or act on no principles at all: (c) the trial Court must not act under a misapprehension of facts: (d) the trial Court must not take into account irrelevant matters or fail to take account of relevant matters: (e) injustice would not be apparent: and (f) the amount awarded by the trial Court is neither ridiculously low nor ridiculously high, to suggest a wholly erroneous estimate of the damages. See Union Bank of Nigeria Ltd v. Odusote BookStores Ltd (1995) 9 NWLR (Pt. 421) 558 at 586; Shell Petroleum Development Company (Nig) Ltd v Royal Highness, Chief GBA Tiebo VII & 4 Ors. (1996) 4 NWLR (Pt. 554) 657 at pages 688 paragraph H; Allied Bank v. Akubueze (1997) 6 NWLR (Pt. 509) 374; (1997) 6 SCNJ, 166 at page 142; Onwu v. Nka (1996) 7 NWLR (Pt. 458) 1 at page 19, D-F; 27, E-F.
Failure of the trial Court to adhere to these, may lead to interference of appellate Court in the award. See Adekunle v. Rockview Hotel Ltd (2004) 1 NWLR (Pt. 853) 16. PER ADAH, J.C.A.

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By a Writ of Summons dated 11th March, 2015 and filed on the same date, the Respondent as Plaintiff (suing through his lawful Attorney Alhaji Bilya Bala) at the trial Court instituted an action against the Appellant as defendant and sought for the following reliefs:
1. A declaration that the Defendant’s letter of 17th September, 2014 to the Plaintiff requesting for a new completion date of development for April, 2015 in place of the agreed date of 21st September, 2014 in respect of the Plaintiff’s landed property known, being lying and situate at Plot 523 Cadastral Zone B19 Kakampe Extension Abuja, more particularly delineated in survey plan No. FCT/B219/PB/9809 measuring 4,732 sqm subject of the contract of agreement. Is unlawful, irregular, null and void and a breach of the contract between the parties contained in the Developer’s Deed executed by both parties.
2. A declaration that the Defendant is in breach of contract between the parties, especially clauses C(1) relating to architectural pattern and specifications and C(4) of the Developer’s Deed relating to

time that is “The construction shall not exceed a 24 month period after all statutory and government approvals have been secured for the development”, of the plaintiff’s landed property known, being, lying and situate at plot 523 Cadastral Zone B19 Kakampe Extension Abuja, more particularly delineated in survey plan No FCT/B219/PB/9809 measuring 4, 732 sqm subject of the contract agreement.
3. N500,000,000,00 (Five Hundred Million Naira) only in GENERAL DAMAGES for Breach of Contract.
4. N8,000,000.00 Eight Million Naira) only SPECIFIC DAMAGES for Breach of Contract.
PARTICULARS OF SPECIFIC DAMAGES
iv. N5,000,000 (Five Million Naira) being (lost rent proceeds) compensation for non-performance at N2,000,000,00 (Two Million Naira) by Five (5) flats at monthly rate per flat, N166,666 (One Hundred and Sixty-Six Thousand Naira) only for six months beginning 22nd September, 2014 – 22nd March, 2015.
iiv. N166,666.00 One Hundred and Sixty-Six Thousand, Six Hundred and Sixty Naira) only per flat, per month from 22nd day of April, 2015 until the works are completed.
iiiv. N3,000,000,00 (Three Million) from 22nd

September, 2015 being compensation for Rent.
4. 21% interest rate of Reliefs 3 and 4 from the 22nd day of September, 2014 till judgment.
5. 10% post judgment interest rate until the judgment sum is liquidated.
6. Cost of this suit as shall be assessed at the end of trial.
ALTERNATIVELY
1. AN ORDER commanding the defendant to pay over to the Plaintiff the current market value (to be determined by the court appointed valuer) the monthly rental value of the completed buildings contained in clause 5 (A) and (B) of the Developer’s Deed, from the 22nd day of September, 2014 until judgment is given in this suit by this Honourable Court.
2. N500,000,000,00 (Five Hundred Million Naira) only GENERAL DAMAGES for Breach of Contract.
3. N8,000,000.00 Eight Million Naira) only SPECIFIC DAMAGES for Breach of Contract
PARTICULARS OF SPECIFIC DAMAGES
iv. N5,000,000 (Five Million Naira) being (lost rent proceeds) compensation for non-performance at N2,000,000,00 (Two Million Naira) by Five (5) flats at monthly rate per flat, N166,666 (One Hundred and Sixty-Six Thousand, Six Hundred and Sixty Naira) only for six months beginning

22nd September, 2014 – 22nd March, 2015. N166,666.00 One Hundred and Sixty-Six Thousand, Six Hundred and Sixty Naira) only per flat, per month from 22nd day of April, 2015 until the works are completed.
v. N3,000,000,00 (Three Million) from 22nd September, 2015 being compensation for Rent-Renewal of the Plaintiff’s rented premises of 47 Lake Chad Crescent Maitama, Abuja.
4. 21% interest rate on Reliefs 3 and 4 from the 22nd day of September, 2014 till Judgment.
5. 21% interest Rate from the 22nd day of September, 2014 till Judgment.
6. 10% post judgment interest Rate until the Judgment debt is liquidated.
7. Cost of the Suit as shall be assessed at the end of trial
ALTERNATIVELY
1. An order of this Honourable Court in lieu of the main relief above, granting the leave to the Plaintiff to purchase all the uncompleted buildings by the Defendant falling within Clause 5 (B) of the Developer’s Deed, known and more particularly described as eleven (11) units of three bedroom apartments with one (1) boy’s quarters each at the current market value based on the valuation of professional independent market

valuer(s).
2. N150,000,000.00 (One Hundred and Fifty Million Naira) only Specific and General Damages for Breach of Contract
3. Cost of this suit as shall be assessed at the end of trial.

On the other hand, the Defendant/Counter-Claimant (now Appellant) filed its Statement of Defence and counter-claim dated 12th November, 2015 and filed on the 16th November, 2015.

In its Counter-Claim, the Appellant Counter-Claimed against the Respondent as follows:
i. An order of specific performance of the agreement to convey eleven (11) apartments, each comprising of three-bedroom flat and a boy’s quarters, to the Defendant/Counter-claimant as provided for in the Developer’s Deed executed between the parties.
ii. Damages in the sum of N160,000,000.00 (One Hundred and Sixty Million Naira) for unduly prolonged delay by the Plaintiff/Defendant to Counter-claim in executing relevant instruments conveying the eleven (11) apartments to the Defendant/Counter-claimant.
IN THE ALTERNATIVE
iii. An order directing the Plaintiff/Defendant to Counter-claim to pay over to the Defendant/Counter-claimant the accruable rent due from the

eleven(11) apartments which are due the Defendant/Counter-claimant at the rate of N11,500,00.00 (Eleven Million Five Hundred Thousand Naira) Per annum from the 22nd September, 2014, till the Plaintiff/Defendant to the Counter-claim executes and lawfully conveys the eleven(11) apartments referred to in paragraph (iii) above, to the Defendant/Counter-Claimant.

Before going into the appeal, here is a summary of the facts involved in this Appeal.
The Respondent as plaintiff at the trial Court, instituted this action claiming that by virtue of a duly executed contract between the parties, the Appellant undertook to utilize substantial part of the Respondent’s property described as Plot 523, Cadastral Zone B19, Katampe Extension Abuja FCT for the purpose of construction of Two blocks of Four Floors comprising sixteen Units of Three Bedroom Flats with Boy’s quarters each, ample parking space, Green areas/walkways and Gate House.

The Respondent also claims that it was agreed between the parties vide clauses C1 of the Contract that the said Flats shall be constructed strictly in accordance with the architectural and structural

specifications identified and agreed to by both parties and by clause C4, the construction shall not exceed 24 months period after all statutory and Government approvals have been secured for the development. Time and pattern or design specifications were therefore made essence of the contract.

The Respondent further claims that consequent to the terms and conditions of the deed, he allowed the Appellant access and entry into the land and the Appellant indeed, also mobilized work materials to the land for the purposes of the contract.

It is also the claim of the Respondent that pursuant to Clause C4 of the contract, the Appellant got the relevant Government approval on the 21st September, 2012.

The Respondent further claims that exactly one year after the said government approval, the Appellant’s work rate on the land was deliberately sluggish prompting the Respondent to write to the Appellant about his apprehension of the likely breach by the Appellant of the agreed completion date of 21st September, 2014 through his solicitor.

The Respondent claims that the Appellant replied him by a letter dated 12th November, 2013 reiterating that it

is conscious of the time line of the contract and would not breach same. However, rather than concentrate efforts on the terms of the contract, the Appellant decided to illegally encroach on the Respondent’s land by adding from the Respondent’s land to the portion surrendered to them which was not part of the contract.

The Respondent claims that he complained of the aforesaid act through his solicitor by a letter dated 21st January, 2014 to which the Defendant replied on the 12th March, 2014.

The Respondent also claims that he noticed that the furnishing of the building was not all in tandem with the architectural designs agreed to by the parties, rather were made of inferior materials of which he also drew the attention of the Appellant to.

The Respondent also claims that five days into the completion of the construction on the property, the Appellant by a letter dated 17th September, 2014, wrote a letter for the extension of time to complete construction on the property apparently evidencing a breach of the timeline condition of the contract.

The Respondent further claims that he instructed his solicitors to reply the

aforesaid letter and also to stipulate some conditions upon which he may consider any extension for the completion of the construction and to accede to breach of the time line by the Appellant and giving it fourteen days to inform him of the options of the conditions he had proposed.

The Respondent claims that he never got a reply from the Appellant and that the failure of the Appellant to abide by the terms of the contract has made it impossible for the Respondent to finish his residence within the subject premises.

The Respondent at the trial Court opened his case on the 9th of July, 2015 with the sole witness, Alhaji Bilya Bala who testified and tendered 12 Documents admitted and, marked as Exhibits 1- 12.

The Respondent closed his case on the 4th February, 2016 and the matter was adjourned to 1st March, 2016 for the defence to open its case.

The Appellant opened its defence on the 1st March, 2016 and called its sole witness Ayotunde Olushuyi who testified and tendered 5 documents, admitted and marked as Exhibits 13-17.

The Appellant closed its case on 1st March, 2016 and the matter was adjourned to 19th April, 2016 for adoption of

final written addresses. Parties then filed and adopted their respective addresses on the 10th November, 2016.

After considering the evidence led by parties, the Learned Trial Judge, Honourable Justice K.N. Ogbonnaya delivered Judgment in the Suit on the 12th May, 2017 wherein he granted Judgment in favour of the Respondent.

Dissatisfied with the Judgment of the trial Court, the Appellant filed an Amended Notice of appeal dated 10th May, 2018 and filed on the 26th June, 2018 comprising of Eight grounds of appeal.

The Appellant and the Respondent has filed and exchanged their respective briefs of argument.
In the Appellant brief of argument as settled by its counsel Rotimi Aladesanmi Esq. dated 11th May, 2018 and filed on the 26th June, 2018, the following issues for determination were distilled from the grounds of appeal as follows:
1. Whether by the Provisions of the Developer’s Deed executed by the parties, the Respondent had the duty to make available the title to the eleven (11) units of apartments due to the Appellant as consideration for the development, to enable the Appellant raise funds for the development. (Distilled

from Grounds 1 and 3)
2. Whether the lower Court acted judiciously and judicially in awarding the sum of N25 million Naira as general damages and the sum of N3 Million Naira as special damages with the pre judgment interest, in the circumstances of this case. (Distilled from Grounds 2, 4 and 5).
3. Whether the lower Court was right in dismissing the counter-claim before the Court. (Distilled from Grounds 6, 7 and 8).

On Issue One, the Appellant’s Counsel argued that Exhibit 2 is the Developers Deed, which is the contract executed by both the Appellant and Respondent and that the very relevant portions of the said contract are Clauses, 5(a), (b), 6 and 7. The Appellant’s Counsel went further to examine these clauses by bringing out their respective provisions. The Appellant’s Counsel also cited the cases of ACHINEKU VS. ISHAGBA (1988) 4NWLR (PT. 89) PG 411;BAMAIYI VS. ATT. GEN. FEDERATION (2001) 38 WRN PG 1 AT 23 – 24 in submitting that where a provision provides that a thing shall be done, the natural meaning is that a preemptory mandate is enjoined.

The Appellant’s Counsel further argued that the parties agreed

that the Respondent was to mandatorily make available to the Appellant, documents of title to the eleven (11) units of apartments due to the Appellant to enable the Appellant utilize them as collateral for mortgage finance to carry out the development.

The Appellant’s Counsel also argued that, the words of the said clauses were quite clear and unambiguous and that the provisions made it clear that the conveying of these apartments, or their availability had to be during the construction of the apartments, and not after.

The Appellant’s Counsel also argued that it is settled law, that in the interpretation of documents, the golden rule is that when words are clear and unambiguous, the operative word should be given their simple and ordinary grammatical meaning. The Appellant Counsel cited the case of UBN LIMITED VS. SAX NIGERIA LTD (1994) 8 NWLR (PT. 361) AT 150.

The Appellant’s Counsel further argued that the unambiguous provisions of Exhibit 2 pertaining to conveying title to the Appellant, clearly contradicted the interpretation given by the learned trial Judge to the effect that Clause 5(b) ought to be construed to mean that

title would be conveyed ‘ninety days after execution’. The Appellant’s Counsel therefore urged this Court to evaluate the said Exhibit.

The Appellant’s Counsel also submitted that a party seeking to enforce his rights under a contract, must himself show that he has performed his own side of the contract. He referred the Court to the case of BROADCASTING ORGANIZATION OF NIGERIA VS. AKINLOYE (1999) 12 NWLR (PT. 631) PG 392.

The Appellant’s Counsel also argued that it is not in doubt that the Respondent failed to discharge his obligation under the contract. However, it is not in dispute that the Appellant, nevertheless, went ahead to carry on with the construction. The Respondent then complained of sundry inadequacies in the building such as quality of materials used but it is admitted by the Respondent during cross-examination that the Appellant stood to lose the most if poor quality materials were used.

The Appellant’s Counsel also argued that the testimony of the Respondent’s witness in his witness statement on oath and that given during cross-examination are clearly inconsistent and no probative value

should be ascribed to the entire testimony of PW1 on the ground that he is not a witness of truth.

In conclusion of his argument on issue one, the Appellant’s Counsel urged this Court to resolve this issue in favour of the Appellant.

On Issue Two, the Appellant’s Counsel argued that the trial Court in its Judgment awarded N3 Million Naira as special damages to the Respondent. Counsel submitted that the principle guiding a Court of Law in the award of damages is that damages are always deemed to be in issue and any allegation of damages is traversed unless specifically admitted. He further cited the case of GONZEE (NIG) LIMITED VS. NERDC (2005) 30 WRN 29 and submitted that special damages must be specifically pleaded which the Respondent failed to do.

The Appellant’s Counsel argued that the Respondent itemized all the heads of special damages in his relief and not his pleadings.

The Appellant’s Counsel also argued that where the Court, at first instance, erred in the assessment of damages by basing its award on wrong principle, the Appellate Court will interfere. He further argued that the lower Court failed to state

under which of the claims it was making the award for damages, whether under the main reliefs or even the 2nd alternative. The Appellant’s Counsel argued that the award of general damages is not based on any principle, it is arbitrary and must be set aside. He cited the case of ESSO W.A. VS. OYAGBOLA (1969) NMLR 126.

The Appellant’s Counsel also argued that the Respondent failed in his bid to claim very substantial special damages and the excessive award of N25 Million Naira under the guise of ‘general damages’ was clearly to compensate the Respondent for his failure and that a party who fails to prove special damages cannot under the claim for general damages get what he has failed to get under special damages.

The Appellant’s Counsel also argued that the learned trial Judge awarded pre-judgment interest at the rate of 10% per annum. However, there was no iota of evidence to support same.

In conclusion, the Appellant’s Counsel submitted that there was no basis at all for the pre-Judgment award of interest by the trial Court. Counsel also cited the case of ABUJA TRANS. NATIONAL MARKET VS. ABDU & ORS (2008) 1 WRN PG 43 AT 73.

On Issue Three, the Appellant’s Counsel argued that the Learned Trial Judge dismissed the Counter-claim of the Appellant, but failed to pronounce on whether it was the main relief or the alternative relief, which failed on the Counter-claim.

The Appellant’s Counsel also argued that the learned trial Judge held that the Appellant’s Counsel abandoned its Counter-claim and led no evidence on it even though it was clear from the testimony of DW1 as contained in paragraphs 14 – 20 of his witness statement on oath, that the Appellant gave clear, cogent, and succinct evidence on the counter-claim.

The Appellant’s Counsel further argued that the Respondent never filed a defence to the Counter-Claim or a reply at all. Therefore, he cannot explain how, or why the learned trial Judge came to the conclusion that the Counter-claim was abandoned and that the Appellant did not lead any evidence on it. The Appellant Counsel in submitting that where evidence has not been challenged or controverted, the Court has to accept such evidence as proof of the facts it seeks to establish. He cited the case of

HEIN NEDELLUNG ISENSEE K.G. VS. UBA PLC (2012) 16 NWLR (PT. 326) PG 349.

The Appellant’s Counsel also argued that the Appellant as Counter-claimant, claimed profit which could have been made had the contract been totally executed and that this can be awarded as special damages where evidence is led, especially oral evidence. On this point, the Appellant Counsel cited the case of ONAGA VS. MICHO (1961) 1 ALL NLR 324. The Appellant’s Counsel further argued that anticipated loss of profit is a form of special damages which when particularized and evidence led, ought to be awarded.

The Appellant’s Counsel also argued that the evidence proffered by the Appellant’s witness established the Appellant’s entitlement to all the reliefs sought in the counter-claim. The Appellant’s Counsel further argued that the Appellant has established its entitlement to the reliefs in its counter-claim and it was not necessary to consider the alternative reliefs. The Appellant’s Counsel also cited the case of MERCANTILE BANK VS. ADAMA (1990) 5 NWLR (PT. 153) PG 747 AT 768 and submitted that where a claim is in the alternative, the Court should first

consider whether the principal or main claim ought to have succeeded. It is only after the Court may have found that it could not, that the Court may consider the alternative claim.

In Conclusion, the Appellant’s Counsel prays that this Appeal succeeds and that the judgment of the trial Court is set aside in its entirety and that the main reliefs sought in the counter-claim be granted.

The Respondent filed a notice of preliminary objection, challenging the competence of the Amended Notice of Appeal and same was argued in his brief of argument filed on the 4th of March, 2019 on the following grounds:
i. No leave of this Honourable Court was sought for and/or obtained before the Appellant converted her original Notice and Grounds of Appeal at PP. 397-400 of the Record of Appeal containing three grounds into Eight Grounds (Five additional) after the Statutory period for filing the Appeal against the Judgment of the Court below expired.
ii. Leave to Amend Notice of Appeal cannot avail filing a fresh Notice of Appeal outside statutory period to substitute an Original Notice of Appeal filed within time raising additional grounds.

iii. The copy of the Judgment of the Court below which the Appeal is predicated is not the signed copy by the Judge of the trial Court delivered in the open Court.

Firstly, the Respondent Counsel argued that the Amended Notice of Appeal filed on the 26/6/2018 on which both issues for determination and the arguments thereon are predicated is incompetent and the incompetence affects the entire appeal.

The Respondent’s Counsel also argued that in the Appellant’s application filed on the 26/6/18 to amend the original Notice of Appeal, the nature of the amendment was not highlighted and that the Grounds of Appeal was increased from three original grounds to eight grounds.

The Respondent’s Counsel also argued that the original Notice of Appeal at PP. 397 – 400 of the Record has no specific ground therein attacking the award of damages. Also, that both the Original Notice of Appeal and the Amended Notice of Appeal contained grounds without particulars.

The Respondent’s Counsel also argued that an application for leave to Amend a Notice of Appeal is mutually elusive from substituting a fresh Notice of Appeal filed outside

the statutory period, containing additional grounds, without the leave of the Court of Appeal as the consideration for their grant are different. Counsel cited the case of OBIOHA VS. DURU (1994) 8 NWLR (PT.365) P.631 on this point and the case of AWONIYI VS. REGISTERED TRUSTEES OF AMORC (1990) 6 NWLR (PT.154) P. 42 in submitting that the only instance where an Appellant can validly substitute a Notice of Appeal, raising additional grounds without the leave of Court is when it is done within the statutory period for filing same.

The Respondent’s Counsel further submitted that issues arising from or related to incompetent grounds of appeal are of no moment. He cited the case of AGBAKA VS. AMADI (1998) 11 NWLR (PT.572), P. 16 AT 24

The Respondent’s Counsel further argued that if the Appeal is heard on the only valid original Notice of Appeal, all the argument on the award of damages goes to no issue, as there is no ground attacking same in the said Notice of Appeal. Counsel also argued that there must be specific complaint, against an award of general damages on the Notice of Appeal to vest jurisdiction on this Court to entertain or consider

Counsel referred this Court to the case of WEST AFRICAN SHIPPING AGENCY (NIG) LIMITED VS. KALA (1978) 3. S.C. 21.The Respondent’s Counsel also argued that the judgment of the trial Court is unsigned and that the Respondent being in possession of the said signed copy of the judgment, availed this Court a copy through the additional Record of Appeal filed by the Respondent and that the Appellant chose to use a print out as the basis of this Appeal.In conclusion, the Respondent’s Counsel argued that where a purported judgment is not signed, it is incompetent for the purpose of being the basis of an Appeal. He cited the case of EYISI VS. STATE (2008) 15 NWLR (PT. 691) PG 555 and further urged this Court to uphold the preliminary objection and dismiss same.The Appellant filed no reply to the Notice of Preliminary Objection.
The Respondent in arguing his brief of argument, distilled a sole issue for determination in his brief of argument settled by Josiah Daniel-Ebune Esq. as follows:
“Whether having regard to the pleadings, the evidence led and all facts and circumstances of the case, the learned trial Judge was

correct in entering judgment in favor of the Plaintiff including the award of damages and dismissing the counter-claim.”

Firstly, the Respondent’s Counsel drew the attention of this Court to the fact that the issue one contained in the Appellant Brief of argument did not emphasize the kernel of the reason for seeking the alleged errors in the judgment to be corrected, having regard to the purported Amended Notice and Grounds of Appeal filed.

The Respondent’s Counsel further argued that the issues for determination raised by the Appellant’s Counsel and his argument therein, did not attack the ratios of the judgment appealed against. That the issue one is framed for trial afresh by this Court and not an invitation to review the decision of the trial Court that it erred in law. He further argued that it is not enough to merely raise doubt, as to whether the judgment is right or wrong. If he cannot convince this Court, the Judgment should stay, and the appeal as well. He cited the case of OBULOR VS. OBORO (2001) 8 NWLR (PT.714) P.25 AT 33.

The Respondent’s Counsel also argued that the argument of the Appellant under issue

one and three are in summary, that the trial Court was wrong in granting the Respondent’s reliefs, including the award of damages on the main claim and dismissing her own counter- claim. The Respondent’s Counsel submitted that the Record of Appeal reveals a sound, exhaustive evidence of a thorough evaluation of the totality of the evidence led on all sides, including Exhibits P2 and 17 by the learned trial Judge.

The Respondent’s Counsel argued that there is no contention under issue one of the Appellant’s Brief that the trial Court either failed to evaluate the totality of the evidence specifically exhibits 2 and 17, nor that his evaluation of same resulted in a perverse exercise. The Respondent’s Counsel also submitted that the proper place to attack the credibility of a witness is at the trial Court not on appeal and cited the case of AWONIYI VS. BUREMAH (1996) 4 NWLR (PT. 445) P. 419 AT 430.

The Respondent’s Counsel also argued that the duty of the Appellant which it failed to discharge is to specifically attack the findings of fact at PP.388 – 393 of the Record of Appeal in the Notice of Appeal which he

did not or contend in his brief, how perverse they are.

The Respondent’s Counsel also argued that the submission of the Appellant’s Counsel on issue one and three are all misconceived. That contrary to the Appellant’s contention, by the provision of the Developer’s Deed executed by the parties, the Respondent was not under any duty to make available the title to the eleven (11) units of apartments to enable the Appellant raise fund for the development.

The Respondent’s Counsel also argued that the Appellant tendered twelve exhibits, pictures of the development made in the course of proceedings and that these exhibits supports the Respondent’s case for breach. Counsel also submitted that where the evidence of damages is unchallenged the standard of proof is discharged upon minimum proof and if as in this case, there is no cross-examination on the basis of the Respondent’s claim being excessive or as proved by evidence of sample of rent receipts by PW1, an award made an issue on appeal will not be disturbed. On this, counsel cited the case of ADE BOSHALI VS. ALLIED COMMERCIAL EXPORTERS LTD (1961) ALL NLR 917.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The Respondent’s Counsel also argued that unlike the Appellant, the Respondent challenged the Appellant’s case, when adverting to damages under cross-examinations (and in line with his averments in paragraphs 1, 2, 3, 4, 9, 10,15 and 16 of its statement of claim at Page 341 of the Record of Appeal.

The Appellant’s Counsel also urged this Court to resolve issue one raised by the Appellant’s Counsel against him and dismiss the Appeal.

The Respondent’s Counsel also argued that the Appellant abandoned her counter-claim and that it is settled law that a Counter-claim is a separate action and evidence must be led to substantiate the claim of the defendant in his Counterclaim. Counsel also cited the case of P.M.B. VS. M.I.B. (2000) 6 NWLR (PT. 661) P. 524 AT 529. Counsel also submitted that no application was made by the Appellant to set her counter-claim down for hearing nor evidence in-chief led as per her Counter-claim on that stead to warrant the Respondent to lead any counter evidence. Also, at the address stage, no issue was formulated by the Appellant touching her Counter-claim. There cannot be better evidence or proof of abandonment.

The Respondent’s Counsel therefore submitted that the Counterclaim was not pursued or does not exist prima facie and if it existed, the facts and totality of the evidence before the Court below are interwoven, that filing a Defence by the Respondent was needless and that the answers of PW1 under cross-examination by the Appellant’s Counsel helped made complete nonsense of the Appellant’s Defence and purported Counterclaim.

The Respondent’s Counsel also argued that there was no evidence tendered that ‘eleven apartments’ were ‘due’ and had been conveyed to the Respondent and that the deposition that the Appellant was denied opportunity to raise finance as a result, is a departure from or a contradiction of averments in paragraph 4 of the Statement of Defence.

The Respondent’s Counsel also argued that issue two of the Appellant’s Brief of Argument was specifically devoted to arguments on the award of damages by the trial court. He further submitted that award of damages is basically the function or duty of the trial Court which had the advantage of hearing and seeing parties

in the witness box. Counsel cited the case of OGU VS. IHEJIRIKA (1991) 4 NWLR (PT. 186) P. 388 AT 393.

The Respondent’s Counsel further argued that the case of the Respondent for damages were fortified by the PW1 evidence, under cross-examination wherein the Appellant’s Counsel gave him further opportunity to give uncontroverted graphic details of his losses at PP. 341, 344, 345, 346 and 349 of the Record of Appeal. Thus, contrary to the contention of the Appellant under issue two, the special damages were specifically itemized and proved by both oral and documentary evidence before the trial Court.

The Respondent’s Counsel also argued that it is settled law that stipulations as to time in a contract is a condition precedent of the contract which has to be strictly complied with and the subject matter at hand is liable to fluctuate in value, time was regarded as being of essence. He cited the case of LOCK VS.BELL (1930) CH. 35.

The Respondent’s Counsel also argued that there is no appeal on any of the grounds of appeal against the award of 10% pre-judgment and 10% post judgment interests awarded on the total judgment sum.

Therefore, arguments proffered in that direction by the Appellant goes to no issue.

The Respondent’s Counsel also argued in citing the case of EHOLOR VS. IDAHOSA (1992)2 NWLR (PT. 323) AT 334 and submitted that the legal position is that remedy available to a defendant presented with insufficient particulars in the Plaintiff’s pleadings is to apply for the proper, further and better particulars of the damage alleged. Thus, by failing to do so and/or challenging same in his pleadings, the inescapable inference was irresistible.

The Respondent’s Counsel in response to the contention that claims for both general and specific damages in contract are irregular or inappropriate, submitted that the Supreme Court has stated the exception in G. CHITEX INDUSTRIES LIMITED VS. OCEANIC BANK INTERNATIONAL (NIG) LIMITED (2005) 8 SCM, AT 48.

The Respondent’s Counsel further argued that it is settled law, that general damages are always made as a claim at large and the quantum need not be pleaded or proved. On this point, the Respondent Counsel cited the case of ROCKONOH PRP. CO. LTD VS. NITEL PLC (2001) 14 NWLR (PT. 733) P. 468 AT

Counsel also argued that it is settled law, that it is not in every case that evidence has to be adduced in respect of interest claimed before interest can be awarded. On this point, counsel cited the case of N.G.C.S. LTD VS. N.P.A. (1990) 1 NWLR (PT. 129) P. 741 AT 748.
In conclusion, the Respondent urged this Court to dismiss this appeal with substantial cost.

DECISION ON THE NOTICE OF PRELIMINARY OBJECTION FILED BY THE RESPONDENT
It seems to me that the Notice of Preliminary Objection is basically centered on one issue as follows:
Whether the Amended Notice of Appeal is Incompetent thereby affecting the Competence of the entire Appeal.

Before I go into addressing the issue herein raised, it would be important for me to state that the Appellant filed its Notice of Appeal on the 9th June,2017 and by a Motion on Notice, filed on the 26th June, 2018 sought for leave to amend the Notice of Appeal by substituting same with the proposed amended Notice of Appeal.

Upon the grant of the said application for leave to amend the Notice of Appeal on the 20th February, 2020, the Appellant’s Amended Notice of Appeal which was already

filed was deemed properly filed and served on the same 20th February, 2020.

The original Notice of Appeal contained three (3) grounds of appeal with particulars. While the Amended Notice of Appeal contained Eight (8) grounds of appeal with its particulars as well.

The main contention of the Respondent in arguing its preliminary objection is that leave to Amend a Notice of Appeal is exclusive from substituting a fresh Notice of Appeal filed outside the statutory period and containing additional grounds, without the leave of the Court of Appeal.

Now at this Point, I do not think that there is any need for me to move in a merry go round, in making my decision on the Notice of Preliminary Objection filed by the Respondent herein.

I have examined the original Notice of Appeal and the Amended Notice of Appeal before this Court, and I have seen that there were additional grounds of Appeal and the Amended Notice of Appeal reveals a difference from the initial ground of Appeal.

I would have been worried if the Amended Notice of Appeal was filed without seeking the leave of this Court as provided by the rules of this Court.

However, by virtue of the Motion on Notice filed on the 26th June, 2018 filed by the Appellant, the Appellant sought for the leave of this Court to amend the original Notice of Appeal and to substitute with the Amended Notice of Appeal.

It is my well-considered view that the Appellant complied with the Rules of Court and sought for the leave of this Court for the amendment of the Notice of Appeal by substituting the original Notice of Appeal filed on the 9th of June 2017 for the Amended Notice of Appeal filed on the 26th June, 2018. The said leave was sought for by the Appellant and granted by this Court on the 20th February, 2020.

By my findings above therefore, I hereby hold that all the argument by the Appellant’s Counsel on the issue raised for determination in his Brief of Argument remains valid.

On the second issue raised and argued by the Respondents’ Counsel, particularly in paragraphs 4.12 and 4.13 of his brief of Argument, that the copy of the Judgment of the trial Court presented by the Appellant subject of the appeal was not signed therefore, the judgment is incompetent and cannot sustain an appeal, it is important to state that the said issue raised has become academic as same has been regularized by the filing of an additional record of appeal containing the signed copy of the Judgment by the Respondent.

The said additional Record of Appeal now forms part of the record of Appeal before this Court. It is trite that no Court of law will knowingly act in vain.

The general attitude of Courts of law is that they are loathe in making pronouncements on academic or hypothetical issues as it does not serve any useful purpose. See the cases of PLATEAU STATE VS. A.G. FED (2006) 3 NWLR (PT. 967) 346 and SHETTIMA VS. GONI (2011) 18 NWLR (PT. 1279) 413.

In the instant case, a consideration of the Respondent’s objection on this point has become academic, cosmetic and of no utilitarian value or benefit as the aim has been met by the filing of the additional Record of Appeal.

In summation, the Preliminary objection fails and it is hereby dismissed.

MAIN JUDGMENT
After a thorough and careful study of the briefs of argument filed by the Appellant’s and the Respondent’s counsel respectively, I will proceed to resolve the issues raised. However, I will adopt the issues raised by the Appellant’s Counsel as follows:
1. Whether by the provisions of the Developer’s deed executed by the parties, the Respondent had the duty to make available the title to the eleven (11) units of apartments due to the Appellant

as consideration for the development, to enable the Appellant raise funds for the development.
2. Whether the lower Court acted judiciously and judicially in awarding the sum of N25 million naira as general damages and the sum of N3 million Naira as special damages with pre-judgment interest, in the circumstances of this case.
3. Whether the lower Court was right in dismissing the counter-claim before the Court.

ISSUE ONE
Whether by the provisions of the Developer’s deed executed by the Parties, the Respondent had the duty to make available the title to the eleven (11) units of apartments due to the Appellant as consideration for the development, to enable the Appellant raise funds for the development.

In making any finding on this issue, it would be important to examine Exhibit 2, which is the Developer’s Deed executed by both the Appellant and the Respondent.

However, before I proceed to make my findings on this issue, it would be necessary for me to first make my observation on the argument of the Respondent’s Counsel in Paragraph 5.2 of the Respondent Brief of Argument.

The Respondent’s Counsel has argued in the aforementioned paragraph that the issue one as argued by the Appellant’s Counsel, of which I have herein adopted is framed for fresh trial by this Court. Counsel further argued that the said issue is not an invitation of this Court to review the decision of the trial Court and also, there is no valid attack against the decision of the trial Court by placing them side by side the arguments canvassed by the Appellant.

In addressing this point, I would love to take a trip to the Records of Appeal particularly at pages 395. The trial Court held inter alia as follows:
“…… Handing over eleven (11) units of three-bedroom apartment and the title deeds thereto were to be done as spelt out in Clause D2 where it was stated that
the vesting of the remaining title of his residue in the demised premises by virtue of Clause A1 of this deed in the developer is at the point of receipt of the keys to the allocated flats under clause B5(a) of this deed….
The above need no further explanation because it is what the parties agreed in the developer’s deed….”

Is the issue one raised by the Appellant for the determination by this Court not in tandem with the above finding of the trial Court?

It is Clear from the above quoted finding of the trial Court as against the argument of Counsel in the said paragraph that the trial Court made a finding on the handing over of the eleven (11) units of the three-bedroom apartment which issue the Appellant has raised for the determination by this Court, whether by the provisions of the Developer’s deed executed by the parties, the Respondent had the duty to make available, the title to the eleven (11) units of apartments due to the Appellant as consideration for the development, to enable the Appellant raise funds for the development.

I hereby discountenance the argument of the Respondent’s Counsel in Paragraph 5.2 of the Respondent Brief of Argument.

Before I continue, it is also important to note that, by an irrevocable power of attorney, the donor Mohammed Bello Usman donated power to the donee, Alh. Bilya Bala who is referred to as the ‘owner’ in the development agreement which is the contract, subject matter before this Court.

Now, back to the issue at hand. Like I have said earlier, the major determinant in dealing with this issue is Exhibit 2 and I would love to extract clause B 5(b) in the said development agreement for examination which provides as follows:
“The remaining eleven (11) units of the three bedroom apartments with one (1) boy’s quarters each would be assigned to the developer to cover the total cost development and profit and the said title to these units shall be executed or made available by the owner within three (3) months of executing this agreement”. (Emphasis Mine)

It is trite that a document speaks for itself See AHMED VS. CENTRAL BANK OF NIGERIA (2013) 11 NWLR (PT. 1365) 352 AT 374 PARAGRAPHS A – C.
I do not also agree with the finding of the Court that by the provision of Clause B 5(b), it is clear that title will be given Ninety days after the execution of the project.
Firstly, the said clause B5B of the developer’s agreement did not in any way state Ninety (90) days after execution. It clearly stated that the said title to the units shall be executed or made available by the owner within three (3) months of executing this agreement.(Emphasis mine)

Except the trial Judge was looking at a different Development agreement, I do not know where he got his 90 days from and also his finding that title to the Eleven (11) units of three-bedroom apartment with one boy’s quarter is to pass upon execution of the contract. The clause as already reproduced above and its content states otherwise. I reiterate here the intention of the parties in that Clause B5(b) is that the title to the Eleven(11) units of apartments would be given by the Respondent to the Appellant upon the execution of the agreement and not upon the execution of the contract itself. Exhibit B is the agreement between the parties. When constructing document in dispute between parties, the proper course is to discover the intention or contemplation of the parties and not to import into the contract ideas not potent on the face of the document. See AMADI VS. THOMAS APLION CO. LTD (1972) 7 N. S. C. C. 262. Where there is a contract regulating any arrangement between the parties, the main duty of the Court is to interpret that contract to give effect to the wishes of the parties as expressed in the contract document.

See ODUYE VS. NIGERIA AIRWAYS LIMITED (1987) 2 NWLR (PT.55) 126. In the construction of documents, the question is not what the parties to the document may have intended to do by entering into that document, but what is the meaning of the words used in the document. See AMIZU VS. DR. NZERIBE (1989) 4 NWLR (PT.118) 755.
It is trite that the Court cannot impute in a document what is not there. See also the case of AHMED VS. CENTRAL BANK OF NIGERIA SUPRA. This clause clearly stands on its own for the purpose which it is to serve. I am actually not impressed by the way and manner the trial Court exercised its interpretive role in this regard. Imputing what is not there in the first place and extracting what is there?
An agreement should be read as a whole to get its meaning but each clause in the agreement should also be considered to get the clear intentions of parties to the agreement.

Going forward, there is no document in evidence to show that the Respondent handed over the title to the said Eleven (11) units of apartment to the Appellant even despite the reminder by the Appellant via its letter dated 12th November, 2013 at paragraph 3 of the said letter which is tendered as Exhibit 13.

The DW1 during cross-examination also confirmed that the title document was never released to the Appellant. See pages 360-361 of the Record of Appeal.

It is therefore my considered view that the Respondent failed to make available the title to the eleven (11) units of apartments due to the Appellant as contained in the development agreement. Even though it is not the business of this Court at the moment to enquire into what the Appellant intends to do with the said title to the units as there is no sufficient evidence to show that the Appellant intended to use the said title once given to it by the Respondent to enable the Appellant raise fund for the project.

I hereby resolve this issue in favour of the Appellant, only to the extent that the Respondent failed to give it the title to the Eleven (11) units of apartments as agreed in Clause B5 (b) of the said Development deed.

On the issue of the credibility of the Respondent witness, argued in paragraphs 4.11 – 4.12 of the Appellant’s brief of argument, I agree no less with the Respondent’s Counsel that the question of credibility of witnesses and

ascription of probative value are pre-eminently the function of a trial Court.

ISSUE TWO
Whether the lower Court acted judiciously and judicially in awarding the sum of N25 million Naira as general damages and N3 million naira as special damages, with pre-judgment interest in the circumstances of this case?

I would like to first look at situations wherein the Court can award general damages, special damages and pre-judgment interest.

General damages need not be pleaded and proved. The award of general damages is at the discretion of the trial Court, which is based on what is considered adequate loss or inconvenience by a reasonable person which flows naturally, as generally presumed by law, from the act of the defendant. It does not depend upon calculation made and figure arrived at from specific items. amongst others. See the case of YALAJU-AMAYE VS. ASSOCIATED REGISTERED ENGINEERING CONTRACTORS LTD (1990) LPELR (3511) 1 AT 47; ROCKONOH PROPERTY CO. LTD VS. NITEL PLC (2001) LPELR (2951) 1 AT 11 – 12.
Also, in the case of DIAMOND BANK PLC VS. WELLCARE ALLIANCE LTD (2015) LPELR (40762) AT 27 – 28, the Honorable Justice Abba Aji, JCA (now JSC) stated:

“The law is trite that where general damages are claimed if the issue of liability is established as in the present case, the trial judge is entitled to make his own assessment of the quantum of such general damages and on appeal, such damages will only be altered or varied if they were shown to be either so manifestly too high or so extremely too low or that they were awarded on an entirely erroneous estimate of the damages to which the plaintiff is entitled.”
It is well established that general damages need not be specifically proved whereas special damages must be strictly proved. See the case of AGUNWA VS. ONUKWE (1962) 1 ALL N.L.R. 537; see also ALHAJI OTARU & SONS LTD VS. IDRIS (1999) 6 NWLR (PT. 606) 33; (1999) 4 S.C. (PT. II) 87.
General damages are not the same as special damages, where one has to itemize and prove all issues being claimed. See also the case of UBN PLC VS. OMNIPRODUCTS(NIG.) LTD (2006) 15 NWLR (PT. 1003) Pg. 681, PARA. A – C.
This Court also held in ONYIAORAH VS. ONYIAORAH (2008) ALL FWLR (PT. 397) 152 AT 160, PARA. A (CA) thus:

“Special damages must be claimed specifically and proved strictly and in cases of contract, cannot be claimed unless they are within the contemplation of both parties at the time of the contract.”
Further to the foregoing, the Supreme Court has established in the case of YALAJU-AMAYE VS. A.R.E.C. LTD (1990) NWLR (PT.145) 422; (1990) 6 S.C. 157 that general damages are such that the Court will award, in the absence of any yardstick with which to assess the award except by presuming the ordinary expectations of a reasonable man.

On the award of pre-judgment interest, it has always been and still remains the position of Nigerian evidential law that pre-judgment interest can only be awarded to a party where that party has pleaded sufficient facts and led credible evidence to show that he is entitled to pre-judgment by virtue of statute, contractual terms, trade usage or custom or any equitable principle of contract. See HABIB NIG. BANK LTD VS. GIFTS UNIQUE (NIG.)LTD (2004) 15 NWLR (PT. 896) 408; E.I.B. BUILDING SOCIETY LTD VS. ADEBAYO (2003) 11 NWLR (PT. 832) 497.
Recently, in JULIUS BERGER (NIG.) PLC VS. T.R.C. B. LTD (2019) 5 NWLR (PT. 1665) 219 AT 257, PARAS. D – G,

the same Supreme Court, in setting aside an award of pre-judgment interest for failure to plead or prove the basis of same, held as follows:
“With respect to the power to award interest before judgment, it is to be reiterated that it is based on statute or a right based on common law or some equitable principle of contract. It is because of the peculiar or special nature of this interest that it is mandatory that before such an award can be claimed, the facts in support must be pleaded and evidence led to support the head of the claim and in the same vein, the rate being the prevailing rate of bank interest at the time of judgment or award. That is to say, that the need for evidence establishing that rate cannot be overemphasized. Therefore, in the instant case where the respondent neither pleaded nor led evidence to show any custom, agreement or statute under which it founded its claim of interest against the appellants, the trial Court erred in awarding the pre-judgment interest against the appellants.”

It would be important for me also, to look at the meaning of pleadings. Pleadings are the formal written statements of the

parties in a civil action developing and ultimately defining the points at issue between them; they contain assertions of fact, which the parties propose to prove, and statements as to the remedies sought. It therefore follows that, pleadings consists of the whole statement of claim in a civil action as in the case at hand.

Now, in addressing this issue, I will first address the issue of the award of general damages of N25,000,000 (Twenty-Five Million Naira) and special damages of N3,000,000 (Three Million Naira) respectively by the trial Court.

Moving away from the finding of the trial Court in page 396 of the Record of Appeal that the Appellant was not able to rebut the claim of the Respondent, it is important to note and have in mind, the authorities already cited above as it relates to general and special damages and also the fact that for the award of general damages, a defendant need not rebut the claim of the plaintiff to be entitled to general damages or to prove that they are in breach. General damages is an award of damages that a party to a contract would be generally entitled to, upon breach of the contract.

On the other hand, for special damages to be awarded, a party needs to plead and prove by leading credible evidence on the specific damages that he has suffered as a result of the breach.

By the authority in the case of DIAMOND BANK PLC VS. WELLCARE ALLIANCE LTD SUPRA, this Court will only alter or vary the general damages awarded by the trial Court if they were shown to be either so manifestly too high or so extremely too low or that they were awarded on an entirely erroneous estimate of the damages to which the plaintiff is entitled.

This brings me to consider whether the Respondent was entitled to the general damages awarded by the trial Court.

Anyway, what is under consideration and what this Court is more concerned about is that the Appellant failed to fulfill his own part of the contract. Clause B5B of the agreement is not to me a condition precedent but an obligation on the part of the Respondent which he must fulfill, but failed to do.

A condition precedent in a contract is something that must be done or must happen in that particular contract upon which the doing of another thing depends. The breach of which, a party becomes entitled. It is not the

essence of the cause of action, but it has been made essential by the provision of that contract.

I therefore, agree with the finding of the trial Court at page 390 of the Record of Appeal in this regard that Clause B5(b) is not a condition precedent in the contract.

Now, has the Appellant proved any loss it has suffered from the said breach? By the letter dated 20th April, 2014 written by the Respondent’s Solicitors on his behalf, the wordings on the fourth paragraph clearly shows that the non-completion of the project in time will result in loss of rent by the Respondent hence his acceptance of the appeal by the Appellant to extend the completion period of the project on one of the conditions, that there should be an unequivocal commitment by the Appellant for compensation of the monetary rental value of both sides of the development for the extended period. There is no evidence that the Appellant responded to that letter.

This Court can clearly draw an inference that, loss of rent is the probable consequence for the breach of the agreement by the Appellant for failure to complete the project within the stipulated time contained in Clause C4 of the said agreement.

I therefore agree with the trial Judge, only to the extent that the Respondent is entitled to general damages which to me is the probable consequence of the breach by the Appellant. However, it is my unshaken view that the award of N25 million naira by the trial Court as general damages is excessive. I hereby award the sum of N10,000,000 (Ten Million Naira).

On the award of special damages, I disagree with the argument of the Counsel to the Appellant in Paragraph 5.3 of his Brief of Argument that reliefs sought by a party in a suit does not constitute part of the facts contained in the party’s pleadings in support of his case upon which evidence can be called. See my definition of Pleadings above.
Special damages have to be itemized and all issues being claimed, proved in the pleadings of a plaintiff. Also, special damages must be specifically proved. See the case of AGUNWA VS. ONUKWE and ALHAJI OTARU & SONS LTD VS. IDRIS SUPRA.

I am of the considered view and like I have stated already, pleadings are statements that contain both facts and the remedy been sought for by a plaintiff. Pleadings is therefore the whole bundle of a statement of claim.

I have looked at the pleadings of the Respondent and I have observed as it is clearly written therein that the Respondent pleaded and sought for the award of specific damages which he carefully itemized. He went further to also show the extent of specific damages that the breach of the agreement by the Appellant as to the completion of the project has caused him.

The Respondent also gave evidence in proof of the inconvenience and loss the breach has cost him. See especially pages 347 of the Record of Appeal.

In page 341 of the Record of Appeal, the Respondent’s witness confirmed that the Development deed was signed in 2012 at page 347 of the Record of Appeal. He also confirmed, during cross-examination that at the time of filing the action which is 2015, the project was not even at the roofing stage but they were as at the period he was been cross-examined which was in 2016, which is a long time after 2012 when the contract was executed.

In page 349 of the Record of appeal, the Respondent’s witness during cross-examination also confirmed that there is every likelihood that the work men and

materials of the Appellant present at the site and the way and manner they work would have destroyed materials worth valuable sums of money which necessitated him to stop work on his own project.

The Respondent had pleaded also in seeking for the relief of specific damages, that the Respondent’s failure to complete the project has occasioned loss of rent which he would have been entitled to if the breach did not occur.

It is a settled Nigerian evidential law that a Court can only resolve the disputes of parties before it that is based on credible and cogent evidence placed before it by the parties. Sections 131, 133 and 134 of the Evidence Act, 2011 provide that in all civil proceedings, the burden of proving a fact is only discharged on the balance of probabilities or the preponderance of evidence.
Before a Court can award any relief claimed or asserted by a party, the Court must be satisfied that the party has led preponderant evidence establishing that party’s entitlement to such a claim. See INTERDRILL (NIG.) LTD VS. U.B.A. PLC (2017) 13 NWLR (PT. 1581) 52 AT 75 PARAS. C – D.

It is my well-considered view therefore, that the Respondent proved the award of specific damages. I hereby uphold the award of N3 million naira as special damages by the trial Court. The Respondent having pleaded and proved his entitlement to the award of special damages.

A Court cannot on its own without any reason or basis sufficiently established by a plaintiff, proceed to award pre-judgment interest at any rate in favour of that plaintiff. To do so would appear arbitrary and antithetical to the role of a Judge as an unbiased umpire who is to dispassionately resolve the dispute between parties based on the facts and evidence presented before it by the parties.
Much said, from the evidence before the Court, the Respondent has failed to adduce sufficient evidence or placed sufficient materials before this Court to warrant the grant of a Pre-judgment interest.
That is to say, that the need for evidence establishing that rate cannot be overemphasized. See the case of JULIUS BERGER (NIG.) PLC VS. T.R.C. B. LTD SUPRA.

It is my considered view that the trial Court erred in awarding the pre-Judgment interest. The said award of pre-judgment interest by the trial Court is hereby set aside.

From the fore-going therefore and the authorities cited, I resolve this point in favour of the Appellant.

ISSUE THREE

Whether the Court was right in dismissing the Counter-claim before it?

It is not enough for a defendant to Counter-Claim against a Plaintiff, he must

also lead evidence in proof of his Counter-Claim. The question now is, did the Appellant prove his Counter-Claim?

It is evident from the Counter-Claim that the Appellant actually pleaded facts to show what he Counter claims against the Respondent. Summarily, the Appellant pleaded facts to show that the refusal of the Respondent to convey the title to the eleven (11) apartments due to it within the three months agreed by the parties to the contract denied it the opportunity of raising the required finance to complete the development.

Also, that the Appellant was deprived the profit it would have made upon the due completion of the project.
The other question now is was the pleaded facts sufficiently proved by evidence?
It is trite that the Court decides based on sufficient materials placed before it.

Yes, this Court will again consider the letter dated 12th November, 2013 by the Appellant to the Respondent wherein it stated that the Appellant is yet to obtain the title to its portion of the property and this has also contributed to some of the delays occasioned on the project as stated in the developer’s deed executed by both parties.

However, during cross-examination of the DW1, which is also contained in page 360 – 361 of the Record of Appeal, when asked:
“Q: In exhibit 16, there is no condition that makes the execution of the deed mandatory for you to raise the finance you need for the development of the project.
A: There was an agreement that three months after the deed is signed, the Plaintiff will release to us the title documents for the landed property so as to enable us to raise the required fund for the project which the Plaintiff did not do.”

From the above evidence which is ranging from the pleadings and evidence during cross-examination, one thing is clear. The Appellant kept complaining that the Respondent failed to provide the title to the Eleven (11) units of apartments but neither did the said agreement explain that the title would be used to raise finance for the development of the project or the Appellant proved sufficiently so.

Also, the Appellant failed to show in evidence how the Respondent’s failure to give the title to the eleven (11) units of apartments influenced the non-completion of the project thus

occasioning the loss he claimed to have suffered in his Counter-claim to entitle him to the relief sought for. It is trite that pleadings without evidence goes to no issue. It is my strong view that pleadings not supported by evidence goes to no issue. The Supreme Court in the case of MOHAMMED VS. KLARGESTER NIGERIA LTD (2002) LPELR – 1897 (SC) (P. 23, PARAS. B – C) per Iguh, JSC reiterated thus:
“Facts pleaded but not supported by evidence go to no issue and must similarly be discountenanced.”

It is my considered opinion that, the Appellant was able to prove that the Respondent failed to hand over the title to the eleven (11) units of apartments to it but had failed woefully to lead sufficient evidence in proof of the fact that the said title is to be used to generate finance for the project. The Appellant is only therefore, entitled to specific performance of the agreement in Clause B5(b) of the agreement.

This issue is hereby partly resolved in favour of the Appellant.
In conclusion therefore and after my findings as made above, I hereby order as follows:
1) Having held that the award of general damages by the

trial Court is excessive, I hereby award the sum of N10,000,000 (Ten Million Naira) as general damages.
2) I hereby uphold the award of the sum of N3,000,000 (Three Million) naira as special damages by the Court.
3) The award of Pre-Judgment interest is hereby set aside.
4) I hereby order that the Respondent convey the eleven (11) apartments each comprising a three-bedroom flat and a boy’s quarters to the Appellant as provided for in Clause B5(b) of the Development agreement executed by the parties.
The Appeal hereby succeeds in part. I make no further order as to cost.

STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of reading the draft of the judgment just delivered by my learned brother, Mohammed Baba Idris, JCA.

principles or act on no principles at all: (c) the trial Court must not act under a misapprehension of facts: (d) the trial Court must not take into account irrelevant matters or fail to take account of relevant matters: (e) injustice would not be apparent: and (f) the amount awarded by the trial Court is neither ridiculously low nor ridiculously high, to suggest a wholly erroneous estimate of the damages. See Union Bank of Nigeria Ltd v. Odusote BookStores Ltd (1995) 9 NWLR (Pt. 421) 558 at 586; Shell Petroleum Development Company (Nig) Ltd v Royal Highness, Chief GBA Tiebo VII & 4 Ors. (1996) 4 NWLR (Pt. 554) 657 at pages 688 paragraph H; Allied Bank v. Akubueze (1997) 6 NWLR (Pt. 509) 374; (1997) 6 SCNJ, 166 at page 142; Onwu v. Nka (1996) 7 NWLR (Pt. 458) 1 at page 19, D-F; 27, E-F.
Failure of the trial Court to adhere to these, may lead to interference of appellate Court in the award. See Adekunle v. Rockview Hotel Ltd (2004) 1 NWLR (Pt. 853) 16.

I have read through the lead judgment of my learned brother and I agree with his reasoning and conclusion therein. I abide by the consequential orders made therein.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, MOHAMMED BABA IDRIS, JCA. I agree with the reasoning, conclusion and orders therein.

Appearances:

Balogun, Esq. For Appellant(s)

Daniel-Ebure, Esq. For Respondent(s)