MEFE & MCJINE LTD v. ACCESS BANK PLC (2020)

MEFE & MCJINE LTD v. ACCESS BANK PLC

(2020)LCN/14537(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Friday, August 28, 2020

CA/AS/379/2017

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

MEFE & McJINE LIMITED APPELANT(S)

And

ACCESS BANK PLC RESPONDENT(S)

RATIO

THE PURPOSE OF AN APPEAL

The law is settled that an appeal is basically to find out whether on the evidence and applicable law, the trial Court came to a right decision. See the case of OBASI V. ONWUKA (1987) LPELR-2152(SC). Hence the position of the law is equally settled that a judgment will not be set aside merely because the reasons given therefore were bad if the judgment itself is right. This is because what an appellate Court has to decide is whether the decision of the trial Court was right and not the reasons for the decision. That if the decision is right, it will not be liable to reversal merely because it was anchored on a wrong reason. See the cases of AGBANELO V UBN (2000) 4 SC (Part 1) 233, (2000) LPELR-234(SC) and A.G. LEVENTIS NIG. PLC V AKPU (2007) 6 SC (Part 1) 254, (2007) LPELR-5(SC) amongst many others. Furthermore, it would appear that it is in recognition of the positions of the law as stated above, that the law equally recognises the power of an appellate Court to re-formulate issue(s) for determination of an appeal and decide the appeal on the re-formulated issue(s) so long as the said re-formulated issue(s) are within the grounds of appeal filed by the appellant. See the case of REPTICO S. A. GENEVA V. AFRIBANK (NIG) PLC (2013) LPELR-20662(SC). PER LOKULO-SODIPE, J.C.A.

THE POSITION OF LAW AS IT RELATES TO DAMAGES IN A CASE/CLAIM FOUNDED IN CONTRACT

The position of the law as it relates to award of damages in a case/claim founded in contract, is in my considered view very settled; and has been so for long. It is that in cases of breach of contract, the damages that would be awarded, are the pecuniary loss that may fairly and reasonably be considered as either arising naturally from the breach itself or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach. To bring out what I am saying more clearly, I consider it pertinent to re-produce the pronouncements of the Supreme Court in some cases dealing with award of damages for breach of contract. Hereunder are the said cases: –
1. ARMELS TRANSPORT LTD. V. TRANSCO (NIG) LTD (1974) LPELR-557(SC) wherein the Supreme Court stated thus: –
“We note that, when dealing with the same principle of law as that raised in this appeal in the EZEANI v. EJIDIKE case (Supra), Brett J.S.C. in delivering the judgment of this Court at page 405 of the report observed thus:
“Where, as has happened here, a plaintiff asking for damages begins by setting out specific items of damages and then adds a claim under the heading of general damages for a sum which will bring the total claimed to a round figure, his claim should always be carefully scrutinised both by the defendant and by the Court in order to see whether he is in fact asking to receive compensation more than once for the same cause of action. An instance of this occurred in ONAGA & Ors v. MICHO & Co. (1961) ALL NIGERIA LAW REPORTS P. 324, where this Court held that having awarded damages for his actual loss under various specific headings a plaintiff in an action for breach of contract could not receive any further award under the heading of general damages. The measure of damages in an action in tort is not the same as in an action in contract, but the rule against double compensation remains the same.”
2. KUSFA V. UNITED BAWO CONSTRUCTION CO. LTD (1994) LPELR-1721(SC) wherein the Supreme Court stated thus: – “The law is that in cases of breach of contract, the damages that would be awarded are the pecuniary loss that may fairly and reasonably be considered as either arising naturally from the breach itself or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach.
The law however, goes on to lay down that in an action for breach of contract a plaintiff who is well compensated under one head of damages for a particular claim cannot also be compensated in respect of the same claim under another head of damages as this will amount to double compensation. See Nigeria Railway Corporation v. Odemuyiwa (1974) 1 ANLR 388 (Reprint); Onaga & Ors v. Micho & Co. (supra) where the award of general damages by the trial Court was set aside by this Court on the ground that by the award of special damages the loss sustained by the plaintiff was adequately taken care of. The law frowns against double compensation whether in contract or tort. PER LOKULO-SODIPE, J.C.A.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment delivered on 22/2/2013 by the High Court of Delta State holden at Effurun Judicial Division presided over by Hon. Justice E.I. Oritsejafor (hereafter to be simply referred to as “the lower Court” and “the learned trial Judge” respectively).

The Appellant as Claimant commenced the instant action against the Intercontinental Bank Plc (later substituted by the present Respondent on record – Access Bank Plc) by a writ of summons which was issued on 28/7/2010. The “particular of claim” as contained on the writ reads: –
“The Claimant is an Engineering and Logistics Services Company. Sometimes in the month of March, 2008, the Claimant purchased from the Defendant a Dump Barge for the sum of N10,000,000 (Ten Million Naira) which was earmarked for Claimant’s operations.
Defendant having received full payment for the said Dumb Barge, failed, refused and or neglected to deliver the said Dump Barge to the Claimant despite written and oral demands by Claimant’s officials to the Defendant,

thereby putting Claimant’s operations in jeopardy. Defendant failed to deliver the said Dumb Barge and instead refunded Claimant’s sum of N10,000,000 (Ten Million Naira) after several months.
WHEREFORE: The Claimant claims from this Honourable Court against the Defendant the following reliefs:
(1) Sum of N10,000,000 (Ten Million Naira) as special damages for the several acts of inconvenience and financial set back suffered by the Claimant and for breach of contract aforesaid.
(2) Other suitable relief.”

The judgment of the lower Court spans pages 156-192 of the records of appeal (hereafter to be simply referred to as “the records”). In its judgment, the lower Court re-produced the issues formulated by the parties for determination in the case. The Respondent as Defendant formulated 2 issues. The issues as re-produced on page 163 of the records read: –
“(i) Whether the claim of claimant was maintainable and justiciable in the circumstances of this case.
(ii) Whether claimant was entitled to the reliefs claimed in the suit.”

The Appellant formulated a sole issue for determination

in the case. The issue as re-produced on page 165 of the record reads: –
“Whether claimant is entitled to damages as a result of the ‘misrepresentation made by the defendant to claimant in the failed Dump Barge transaction’ between the parties.”

On page 167 of the records, the lower Court stated thus: –
“After the address of counsel, this Court invited counsel on the applicability of the provisions of the Sale of Goods Law (sic) to the transaction between the parties which gave rise to the cause of action in this suit and if applicable, which law as between the Sale of Goods Law (sic) of the defunct Bendel State, 1976 and the Sale of Goods Law (sic) of Delta State is applicable to the said transaction and the effect of the said provisions of the Sale of Goods Law (sic) on the transaction.”

On page 171 of the records, the lower Court disclosed that it will consider the issues formulated by the parties together with the further submissions of counsel in relation to the provisions of the Sale of Goods Law. The lower Court in its judgment and for the purpose of resolving the first issue formulated by the

Respondent herein engaged in a consideration of various provisions of the Sale of Goods Law of Delta State in resolving the said issue 1. This is after the said lower Court had stated on page 173 of the records that: –
“It is pertinent to state at this stage that I agree with counsel for claimant that the transaction between the claimant and defendant was a sale of good transaction to which the Sale of Goods Law (sic) of Delta State was applicable in view of the provisions of Section 3(1) of the Sale of Goods Law (sic) of Delta State; which was in force in Delta State at the material time in March, 2008, when the cause of action in this suit accrued to clamant. I have to state also that the provisions of the Sale of Goods Law (sic) of Delta State is a re-enactment of the Sale of Goods Law (sic) of the defunct Bendel State, 1976, applicable in Delta State before the Delta State Law came into force. The various Sections of the 2 Laws are the same. Accordingly, it makes no difference to the substance of the submissions of counsel whether the reference was to the Sale of Goods Law (sic) of the defunct Bendel State, 1976, or Sale of Goods Law (sic)

of Delta State which came in force in Delta State on 30th April, 2006.”

Having embarked on the consideration and resolution of the 1st issue for the determination of the case as formulated by the Respondent on pages 171-191 of the records, the lower Court specifically stated on pages 190-191 thus: –
“From the comments of the learned jurist and author Olakunle Orojo CJ re-produced above which I endorse unequivocally, it is clear that where as in the instant case of the claimant in these proceedings, the property in the said good passes to the buyer before the good is destroyed, the provisions of Section 8 of the Sale of Goods Law (sic) cannot apply in that the buyer bears the risk and loss.
In relation to Section 21(2) of the Sale of Goods Law(sic), which provides that where delivery of the goods is delayed due to the fault of one of the parties, the party at fault bears the risk, it is my firm view that Section 21(2) of the Law cannot apply to cases where the provisions of the said Rule 1 of Section 19 are applicable in that the provisions of the said Rule 1 of Section 19 clearly makes (sic) postponement of the time of delivery

immaterial. In the circumstances, I hold that by virtue of the provisions of Rule 1 of Section 19 and Section 21(1) of the Sale of Goods Law (sic), the barge bought by the claimant was at the claimant’s risk at the time the barge was removed from its location at Ugbuwangue to the High Seas by Mr. Dennis Onosode. Accordingly, the loss is clearly on the claimant and he cannot maintain an action against the defendant for damages arising from the transaction. For this reason, I resolve issue in favour of defendant.
The 2nd issue raised by counsel for defendant is whether the claimant was entitled to the reliefs claimed in this suit. I have already reproduced the reliefs claimed by the claimant above in this judgment as contained in the writ of summons and paragraph 23 of the statement of claim which is the sum of N10,000,000.00 (Ten Million Naira) being special and general damages for inconvenience and financial set back suffered by claimant as a result of defendant’s action. In view of the conclusion reached by this Court in the course of considering the 1st issue that the action is not maintainable against the defendant, the relief of special

and general damages does (sic) not arise.
However, the provisions of Section 64 of the Sale of Goods Law provided for the recovery of money paid where the consideration for the payment of the money has failed. I have already reproduced the provisions of the said Section 64 of the Sale of Goods Law above in this judgment. From the evidence before this Court, there can be no doubt that the claimant never got delivery of the barge for which he paid the sum of N10,000,000.00 (Ten Million Naira). In effect the consideration for which the money was paid by the claimant failed. However, the evidence is that defendant refunded the said sum of N10,000,000.00 (Ten Million Naira) to the claimant. Having got a refund of the money paid for the barge, the action for damages would not lie in the circumstances of this case. Accordingly, I hold that claimant is not entitled to the reliefs claimed against defendant. I resolve the 2nd issue in favour of the defendant.
I have also reproduced above, the single issue raised for determination by counsel for claimant. It is whether claimant is entitled to damages as a result of the misrepresentation made by defendant to

claimant in the transaction between the parties. I have already dealt with this issue in the course of considering the 1st issue raised by defendant. As stated already, claimant did not plead misrepresentation of (sic) fraud in its pleading. In any event, this Court has held that on the evidence before this Court, claim for damages does not arise.
For the reasons stated above, I hold that the claimant’s claims against the defendant fails and I hereby dismiss the said claim of the claimant in its entirety. There shall be no order as to costs.”

Being aggrieved with the judgment of the lower Court, the Appellant initiated the instant appeal by lodging at the registry of the said Court on 16/5/2013, a notice of appeal bearing the same date. The notice of appeal in question contains four grounds of appeal. The grounds of appeal and their respective particulars read: –
“GROUND ONE (1)
The learned trial Judge erred when he applied the provision of Section 19(1) of the Sale of Goods Law, Delta State to hold that the property in the barge passed to the Appellant on 3rd March, 2008 when the Appellant paid for the barge.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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Particulars of Error
(a) The barge which was the subject matter of the contract between the Appellant and the Respondent falls within the realm of specific or ascertainable goods.
(b) By the provision of Section 18(1) of the Sales of Goods Law, property in specific or ascertainable goods is transferred to the buyer at such time as the parties to the contract intend it to be transferred.
(c) In ascertaining the intention of the parties, Section 18(2) provides that regard shall be had to the terms of the contract, the conduct of the parties and the circumstances of the case.
(d) The Appellant pleaded in paragraph 10 of its statement of claim and led evidence that upon payment for the barge, the Respondent gave it photocopies of particulars of the barge which included Load Line Certificate, Boat license and Dry Docking certificate, with a promise possession of the barge including original particulars of same and official receipt shall be passed to the Appellant in a few days time.
(e) There was no evidence before the Court that Appellant was given the original copies of the particulars of the barge and a receipt for its purchase whether

official or otherwise.
(f) The Respondent pleaded in paragraph 6 of the statement of defence that she is the lawful and legal owner of the three barges (including the subject of this appeal) anchored at Ugbuwangue Waterside. To buttress this point, the Respondent also in paragraph 10 of the statement of defence stated that it would rely on the Boat Licence and other particulars of the barge.
GROUND TWO (2)
The learned trial Judge erred when he applied the provision of Section 21(1) of the Sale of Goods Law, Delta State to hold that the risk in the barge was transferred to the Appellant on 3rd March, 2008 when the Appellant paid for the barge.
Particulars of Error
(a) The facts pleaded and evidence led showed that the barge remained at the Respondent’s risk. Outside the fact that the Respondent at all time material retained the original documents of the barge and expressly acknowledged its ownership, its conduct clearly portrayed that risk remained with it.
(b) Exhibits P and O as well as the testimony of the Respondent’s sole witness clearly show that the Respondent knew that property in the barge was not transferred

to the Appellant and as such its risk remained squarely with it.
GROUND THREE (3)
Given the facts pleaded before the lower Court, the learned trial Judge erred when he held that the Appellant cannot maintain an action for damages against the Respondent.
Particulars of Error
(a) The parties to the transaction are commercial entities. From the evidence before the lower Court, the Respondent (a commercial bank) held on to the Appellant’s money despite repeated demands for its refund.
(b) The consideration for which the Appellant paid a whooping sum of N10,000,000.00 (Ten Million Naira) having failed on March 14, 2008, the Respondent was under a duty or obligation to make refund immediately.
(c) From the undisputed fact before the Court, it took the Respondent about five months to make refund to the Appellant.
(d) Section 64 of the Sales of Goods Law, Delta State does not bar the Appellant from making a claim for damages.
(f) There is clear evidence that the Respondent made the Appellant to incure (sic) cost for hiring of a tugboat. The barge is not a decorative ornament but a piece of equipment purely paid for by the Appellant for commercial purpose alone.

(g) The consideration of the payment of N10,000,000.00 having failed and the Respondent equally having failed to refund the money immediately or within commercially reasonable time, the Appellant is entitled to damages.
(h) The Appellant in paragraph 23 A (1), (2) and (3) made special damages claim.
GROUND FOUR (4)
Given the pleadings and evidence led at the lower Court, the learned trial Judge misconceived the case of the Appellant in his judgment.
Particulars of Misconception
(a) The case of the Appellant is predicated on entitlement to compensation by way of damages for the withholding of the sum of N10,000,000.00 (Ten Million Naira) paid to the Respondent (after repeated demands) for the purchase of a barge.
(b) It was not in dispute that the sum of N10,000,000.00 paid by the Appellant to the Respondent for the purchase of the barge was refunded.
(c) Reliance on the provision of Sections 18 and 19 of the Sale of Goods Law, Delta State by the learned trial Judge was therefore with respect uncalled for.
(d) The lower Court having embarked on a voyage through the Sale of

Goods Law, Delta State failed to appreciate the Appellant’s case.
GROUND FIVE (5)
The judgment of the lower Court is against the weight of evidence.”

The reliefs which the Appellant seeks from this Court as set out in the notice of appeal are to the effect that: (1) this Court should allow the appeal; (2) set aside the judgment of the lower Court delivered on 22/2/2013; and (3) grant the reliefs sought in the Appellant’s statement of claim save the claim for general damages that was withdrawn at the trial Court.

The appeal was entertained on 2/6/2020. In arguing the appeal, parties through their respective learned counsel adopted and relied on their respective briefs of argument in urging the Court to affirm their different positions in the appeal. Appellant’s brief is dated 13/7/2018 and was filed on the same date. It was however deemed to have been properly filed and served on 27/5/2019. Appellant’s reply brief of argument is dated 10/3/2020 and was filed on 10/3/2020. The two briefs of argument were settled by D.E. Agbaga, Esq. who argued the appeal for the Appellant.

Respondent’s brief of argument is dated 24/9/2019 and filed on the same date but deemed to have been properly filed and served 11/3/2020. The brief in question was settled by B.F. Omoyeni, Esq.

The Appellant formulated 3 issues for the determination of the appeal in its brief of argument. The issues are: –
“1. Given the pleadings and evidence led in this case, whether the learned trial Judge was right when he held that by virtue of the provisions of Rule 1 of Section 19 and Section 21(1) of the Sale of Goods Law the barge bought by the (Claimant) i.e. Appellant was at the Appellant’s risk at the time the barge was removed from its location at Ugbuwangue to the High sea by Mr. Dennis Onosode, thus Appellant cannot maintain an action against the Respondent for damages arising from the transaction” (Framed from grounds 1, 2 and 3 of the grounds of Appeal)
2. Given the pleadings and evidence led, in this case, whether the learned trial Judge clearly appreciates the case of the Appellant.) (Framed from ground 4 of the Grounds of Appeal).

Given the pleading and evidence led in this case, whether the learned trial judge rightly evaluated the testimony of the Claimant/Appellant and that of the Defendant/Respondent before arriving at his judgment. (Framed from ground five (5) of the grounds of Appeal).The Respondent equally formulated 3 issues for the determination of the appeal. They read: –
“(a) Given the pleadings and evidence led in this case, whether the learned trial Judge was right when he held that by virtue of the provisions of Section 19 Rule 1 and Section 21(1) of the Sale of Goods Law, the property in the barge and risk thereof passed to the Appellant on 3rd March, 2008 when the Appellant paid for the barge. (Framed from grounds 1 & 2 of the Notice of Appeal)
(b) Whether from the pleading and evidence led in this case, the learned trial Judge was right when he held that having got a refund of the money paid for the barge, the action for damages would not lie in the circumstances of the case. (Framed from ground 3 of the Notice of Appeal)
(c) Whether the Appellant had proved its claim for special damages on the

preponderance of evidence to enable the learned trial Judge tilt the weight of evidence on its side. (Framed from grounds 4 and 5 of the Notice of Appeal).”

The position of the law is settled that it is a plaintiff who brings a suit that also nominates the issues for decision in the case. That once a plaintiff’s suit is based on a right, which is cognisable under the law, it is not for the Court to dictate to such plaintiff the manner by which to frame the remedy being sought. That the crucial question is, whether the plaintiff called sufficient evidence that will enable the Court grant to him the relief being sought. The issues nominated for the decision in the plaintiff’s case must in any case be identified from the pleading(s) filed by the said plaintiff. It is also settled law that though a Court is not to make a case for a party it should look at what is pleaded and the relief sought in order to determine the issues involved in the case. See amongst many others the cases of NKUMA V. ODILI (2006) All FWLR (Pt. 313) 24, F.A.A.N. V. GREENSTONE LTD. (2009) All FWLR (Pt. 500) 741, and ORJIEKWE V. ORJIEKWE (2012) LPELR-20448(CA).

The case of the Appellant simply put is that it purchased a barge from the Respondent. That it made the payment for the barge by two instalments – in the sum of N7 million and N3 million respectively. That because of the urgency the Respondent attached to the transaction as created by a merger of the said Respondent, the Appellant had to borrow money at high interest rate to purchase the said barge. That the Respondent did not hand over possession of the barge to the Appellant upon the payments for same having been made; but promised that the original documents in respect of the barge and possession of the barge would be made to it, in a few days. It is also the case of the Appellant on the pleading that on 14/3/2008, it hired a tug boat and fuelled the same at a cost of N145,000.00, with a view to taking delivery of the barge and that it got to the place from where it was to take possession of the said barge, only to find that the barge was not there. The Appellant claimed to have hired the tug on the instruction of a named official of the Respondent. That 2 weeks after the failed delivery of the barge, the Managing Director of the Appellant wrote to the

Defendant demanding for the delivery of the said barge. That when nothing was heard from the Respondent despite writing another letter of demand for the delivery of the barge, Appellant’s solicitor then wrote a letter demanding for the refund of the “principal sum” of N10 million and the payment of expenses/loses so far suffered by the Appellant. That it was not until 15/7/2008 that the Respondent under the cover of the letter it wrote, forward to the Appellant a cheque in the sum of N10 million as a refund for the N10 million paid by the Appellant for the barge in question and that the Respondent therein gave a lame excuse/reason for its inability to pass title over the barge to the Appellant and for the delay in refunding the Appellant’s money. That the Appellant’s Managing Director on the receipt of the letter under the cover of which the Respondent refunded the sum of N10 million to the Appellant, wrote a letter stating its demands for the wilful act of the Respondent. That the Appellant decided to institute the instant action against the Respondent due to the Respondent’s failure to respond to the demands in its letter

in which the same were made.

It is upon the facts narrated above, that the Appellant has claimed interest at 13% for five months for “loan of N10,000,000.00” in the sum of N505,753.43; N145,000.00 being the cost of hiring of a tug boat; and N5,000,000.00 for losses incurred due to the Respondent’s non-release of the barge to the Appellant for the business transaction it was meant for.
As stated hereinbefore the lower Court dismissed the claims of the Appellant in its entirety.

(2000) 4 SC (Part 1) 233, (2000) LPELR-234(SC) and A.G. LEVENTIS NIG. PLC V AKPU (2007) 6 SC (Part 1) 254, (2007) LPELR-5(SC) amongst many others. Furthermore, it would appear that it is in recognition of the positions of the law as stated above, that the law equally recognises the power of an appellate Court to re-formulate issue(s) for determination of an appeal and decide the appeal on the re-formulated issue(s) so long as the said re-formulated issue(s) are within the grounds of appeal filed by the appellant. See the case of REPTICO S. A. GENEVA V. AFRIBANK (NIG) PLC (2013) LPELR-20662(SC).

I have earlier set out the issue formulated by the parties for the determination of the instant appeal and given the various positions of the law as stated hereinbefore, I am of the considered view that the instant appeal can be properly resolved on the simple issue as to “whether upon the pleading and evidence adduced by the Appellant, the said Appellant is entitled to the damages claimed in the instant case; particularly as the purchase price the Appellant paid for the barge it bought from the Respondent but not delivered by the said Respondent had been

refunded to the Appellant prior to the institution of the instant case?” The issue which I have formulated in my considered view is not only an admixture or combination of issues 1 and 2 as formulated by the Respondent for the determination of the instant appeal, but simply calls for the application of settled principles of the Law of Contract in respect of “damages” in resolving the Appellant’s dogged desire or quest for damages in respect of the barge it purchased from the Respondent after the said Appellant had the money it paid for the said barge that was not delivered to it by the Respondent, refunded.

On the principles of law reviewed above and having regard to the facts of this appeal, I can find no legal basis whatsoever for the award of general damages made by the trial Court. In my considered view, the Court below is right in setting aside the award of general damages. On the facts, the plaintiff in my respectful view has been adequately compensated by the award of special damages made by the trial Judge. Having been awarded virtually the entire contract sum, I cannot see the necessity for the award of general damages.”
3. G. CHITEX INDUSTRIES LTD V. OCEANIC BANK INTERNATIONAL (NIG) LTD (2005) LPELR-1293(SC) wherein the Supreme Court stated that: –
“In cases of breach of contract, a plaintiff is only entitled to damages naturally flowing or resulting from the breach. See…

The measure of damages, in such cases of breach of contract, is in the terms of the loss which is reasonably within the contemplation of the parties at the time of contract. See…
When considering damages arising from a breach of a contract, there is no room for damages which are merely speculative or sentimental unless these are specifically provided for by the express terms of the contract. See…
The appellant’s claim for N3.5 million naira for “loss of credit facilities, goodwill, profits and future prospects” was clearly not specifically spelt out at the time of the contract of only transferring N12,000 US Dollars to the business associates of the appellants. The claim is sentimental and speculative. The respondent did not specifically undertake any obligation to indemnify the appellant for the conduct of the third party in relation to their business with the appellant as there was no provision of such a claim in the contract. There was no mention of any loss of credit facility, goodwill, profits or future prospects at the time of contract. The loss if any, was not within the contemplation. In my view, the only damages recoverable within the

contemplation of the parties was the difference in the rate of exchange the appellant was obliged to pay i.e. the sum N66,000.00 which was the presumed and normal consequence of the respondent’s breach. See Kusfa’s case supra. To ask the respondent to pay for any further sum would amount to double compensation. Although the terms “special” and “general” damages are not appropriate in an action for breach of contract, but there are special circumstances where the parties do make contracts and bind themselves knowingly that a breach of contract under the special circumstances would also attract damages which the parties agreed to at the time of the contract. See…
The claim of N3.5 million in this (sic) circumstances even if it was within the contemplation of the parties “as a special case” which it was not, was not satisfactorily proved.”
4. EAGLE SUPER PACK (NIG.) LTD. V. A.C.B. PLC (2006) LPELR-980(SC) wherein the Supreme Court stated thus: –
“What is the measure of damages in a case as this (sic) In Omonuwa v. Wahabi (1976) 4 Sc. (sic) 37 at pp. 47-48, this Court per Idigbe, JSC explained basis of

compensation and the measure of damages in a case of breach of contract thus:
“In the preparation of the claim for, as well as in the consideration of an award in consequence of a breach of contract, the measure of damages is the loss flowing naturally from the breach and incurred in direct consequence of the violation. The damages recoverable are the losses reasonably foreseeable by the parties and foreseen by them at the time of the contract as inevitably arising if one of them broke faith with the other. In the contemplation of such a loss there can be no room for claims which are merely speculative or sentimental unless these are specially provided for by the terms of the contract. It is only in this connection that damages can be properly described as special in the conception of contractual awards and it must be borne in mind that damages normally recoverable are based on the normal and presumed consequences of the breach complained of… Thus the terms general and special damages are normally inept in the categorization of damages for the purpose of awards in cases of breach of contract. We have had to point out this before… and we must make

the point that apart from damages naturally resulting from the breach, no other form of general damages can be contemplated…” (italics supplied by Idigbe, JSC).
And on the same subject, this Court in the case of Gregoire Agbale v. Naliona Motors Ltd. observed as follows:
“It is undesirable to refer in contract to general and special damages as normally the only damages, other than those arising naturally, flow from consequences specifically provided for by the parties which would not otherwise naturally arise from a breach of the contract… (italics supplied by Idigbe, JSC). (see SC.20/68 of 13 March, 1970 unreported but see (1970) ALR 266 at 273.”
The Appellant has expressly stated that he withdrew its claim for general damages at the trial of the instant case. There is therefore no need to dwell further on the finding of the lower Court that the Appellant was not entitled to general damages no matter the basis upon which it premised that finding. In other words, the dismissal of the claim of the Appellant for general damages cannot be reversed. It is affirmed as it is a correct decision. No Court can be

expected to grant a relief that a party withdraws during trial of the case. This is particularly so as the said withdrawal is tantamount to relinquishing some measure of damages that is imbedded in a claim for breach of contract that the instant case is about.
The other damages being claimed in the Appellant’s action are clearly pecuniary losses which have crystallized in terms of cash and values before the trial and the entitlement of the Appellant to damages in respect of the same, ought to have been specifically pleaded and proved. See amongst many others, the cases of AJIGBOTOSHO V. RCC (2018) LPELR-44774(SC) and OBASUYI V. BUSINESS VENTURES LTD (2000) LPELR-2155(SC). Indeed, as far back as 1975, the Supreme Court has categorically stated that the award of general damages is improper where the quantum of loss is certain. See the case of SOETAN & ANOR V. OGUNWO (1975) LPELR-3089(SC).
Suffice it to say, that the cases I have earlier cited in this judgment in respect of the measure of damages for breach of contract, loudly condemn the act of giving compensation to a plaintiff, as a largesse. Hence, the position of the law that in cases of

contract, is that it is wrong for a trial Court to award general damages for the breach of a contract when the innocent party has been fully compensated for the items he has claimed as special damages. See the case of AGU V. GENERAL OIL LTD (2015) LPELR-24613(SC) in which the case of Ijebu-Ode Local Government v. Adedeji Balogun (1991) 1 NWLR (Pt. 166) 136 at 142, was applied.

I have read most painstakingly the pleading of the Appellant, and I do not see any portion therein where facts were succinctly pleaded to show that the Appellant took a loan for any purpose at the suggestion or directive of the Respondent. In any event, the Appellant never drew the attention of the Court to the evidence by which it established the fact that it got a loan from any source whatsoever and the terms of such loan. How then can the Appellant be heard to argue that it is entitled to damages in the form of interest or indeed any other damages in respect of pecuniary losses in the form of damages which had crystalised prior to its instituting the instant action and which it did not specifically plead talk less of prove. The mere assertion of a fact in the pleading of a party

and or the ipse dixit in respect of claims for damages that are in the nature of special damages are in law not sufficient to establish such claims. In my considered view, the lower Court on the state of the pleading of the Appellant was therefore eminently correct or right in denying the Appellant the damages in the nature of “special damages” it claimed in the instant case.

Before I end this judgment, I consider it pertinent to state that the Appellant would appear not to have done any meaningful research into the cases before bringing the instant case and/or pursuing the instant appeal. At the lower Court, it is to be noted that the Appellant conceded that his case is one to which the Sales of Goods Law of Delta State is applicable. This much is clear when the lower Court in its judgment stated thus: –
“It is pertinent to state at this stage that I agree with counsel for claimant that the transaction between the claimant and defendant was a sale of good transaction to which the Sale of Goods Law (sic) of Delta State was applicable in view of the provisions of Section 3(1) of the Sale of Goods Law (sic) of Delta State; which was

in force in Delta State at the material time in March, 2008, when the cause of action in this suit accrued to clamant.”

Sections 61-64 of the Delta State Sale of Goods Law, Cap. S1, make provisions in respect of “remedies of buyer”. Provisions of the Sale of Goods Act of 1893, which are word for word the same with those in Sections 61 and 64 of the Delta State Sale of Goods Law were considered in the case of SABRU MOTORS LTD V. RAJAB ENT (NIG) LTD (2002) LPELR-2971(SC). Dwelling on claim for damages for the non-delivery of “purchased item(s)” in the said case, the Supreme Court stated thus: –
“On further appeal to this Court, the main issue in contention between the parties is whether the Court below was right when it held that the damages awarded by the trial Court was inadequate having regard to the evidence and the state of the pleadings vis-a-vis the provisions of Section 51 of the Sale of Goods Act, 1893.
I think I can start by stressing that in order to justify reversing the trial Judge on question of the amount of damages, it will generally be necessary that this Court should be convinced, either that:

(i) the Judge acted upon some wrong principle of law; or
(ii) that the amount awarded was so extremely high or so small as to make it, in the judgment of this Court, an entirely erroneous estimate of the damages to which the plaintiff is entitled.
The claim by a buyer for damages for non-delivery in transaction for sale of goods is governed by Section 51 of the Sale of Goods Act, 1893 which provides as follows:
“51(1) Where the seller wrongfully neglects or refuses to deliver the goods to the buyer, the buyer may maintain an action against the seller for damages for non-delivery
(2) The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events from the seller’s breach of contract.
(3) Where there is an available market for the goods in question, the measure of the damages is prima facie to be ascertained by the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered, or (if no time was fixed) at the time of refusal to deliver.”
Where therefore, the seller wrongfully fails

to deliver the goods, the subject matter of a contract of sale, the buyer may, among other things maintain an action for damages against the seller for non delivery under Section 51(1) of the Sale of Goods Act. But by Section 51(3) of the Act, where there is an available market for the goods in question the measure of damages for non delivery or repudiation by the seller is prima facie to be ascertained by the difference between the contract price and the market or current price of the goods at the time when they ought to have been delivered or, if no time was fixed, then at the time of the refusal to deliver. Whereas Section 51(2) of the Act would seem to apply where there is no available market for the goods, the subject matter of the contract at the time of the breach, Section 51(3) is a specific application of the general rule laid down in Section 51(2) to the situation where there is an available market for the goods at the time of breach. It is therefore plain under the Sale of Goods Act, 1893 that where there is an available market for the goods, the subject matter of a breach of contract by non-delivery, the measure of damages is prima facie to be

assessed by the difference between the contract price and the market or current price of the goods at the time when they ought to have been delivered… and, if no time was fixed, then at the time of refusal to deliver… In other words, the measure of damages under Section 52(3) of the Act is the difference between the contract price and the current or market price of the goods at the time of breach…
Attention must be drawn to the provisions of Section 54 of the Act which stipulates as follows: –
“54. Nothing in this Act shall affect the right of the buyer or the seller… to recover money paid where the consideration for the payment of it has failed.”
I think it is the correct view of the law to state that where after the buyer has paid the price (or part of it) to the seller, the seller fails to deliver the goods, he may either sue for damages, or for restitution of the money paid to the seller. If he sues for damages, the assessment should include the amount paid to the seller but he would have to prove and he is subject to all the rules on damages, such as remoteness of damage and the doctrine of mitigation…”

All that I am trying to say is that if the Appellant had carried out sufficient research into the cases, and had the benefit of reading the above cited case, it would have seen that the Respondent having refunded the sum of N10 million it paid for the barge, it (Appellant) cannot properly make the non-delivery of the barge it bought from the Respondent irrespective of the circumstance of the non-delivery, the basis for the windfall, it is seeking for the non-delivery of the said barge. The Appellant needs to be reminded that the principle of assessment of damages for breach of contract generally is restitutio in integrum – that is the plaintiff shall be restored as far as money can do it, into the position he would have been if breach had not occurred. It is not intended to give the plaintiff a windmill on all claims for damages. See the cases of IFETA V. S.P.D.C. NIG. LTD (2006) LPELR.1436(SC), OKONGWU V. N.N.P.G (1989) 4 NWLR (Pt. 151) 296; and NIGERIA PRODUCE MARKETING V. ADEWUNMI (1972) NSCC 692, amongst many others. The refund by the Respondent to the Appellant of the N10 million the Appellant paid for the barge it purchased but never delivered by the

Respondent, sufficiently restored the Appellant as far as money can do it, to the position he was if the breach had not occurred.

Flowing from all that has been said hereinbefore, is that, I resolve the issue I have formulated for the determination of the instant appeal against the Appellant and in favour of the Respondent.

In the final analysis, the instant appeal is most unmeritorious, and it fails. The appeal is hereby dismissed. The judgment of the lower Court appealed against is upheld.
Costs in the sum of N200,000.00 is awarded in favour of the Respondent and against the Appellant.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have been availed the benefit of reading in draft before now, the lead Judgment dismissing the appeal of the Appellant herein and I concur.

The Appellant who had been compensated by a refund or restitution by a refund of the sum of N10,0000.00 (Ten Million Naira) by his ipsi dixit in his statement of claim could not be doubly compensated in the said same sum for the breach of contract in respect of the non-delivery of a dump barge even after the said purchase price had been refunded.

In this matter on appeal,

one may on the face of it be moved into reasoning that a mere refund was not adequate, as compensation by way of damages could be awarded as the plaintiff/Appellant had so claimed. It is however, clear from the judgment which is not appealed on the finding of facts and law therein that property in the goods (in this case, the BARGE), had passed to the Appellant under the sale of Goods Act; it was therefore, the Appellant’s burden and Duty to so protect and take physical possession of the Barge.

There was no further duty or obligation on the respondent which was breached, to warrant the grant of any other pecuniary compensation in damages against it.

I am also persuaded by the mute and unserious pattern of relief No. 2 tagged “other suitable relief” sought by the Appellant at the trial Court.
It is in appreciating the legal inhabitation that I had indicated that a claim of the relief No. 2 made at large, as done in the nature of equitable relief has been sought.

Contractual claims and reliefs are not in the nature of actions in torts.
Appeal is dismissed.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the

opportunity to read in advance the lead Judgment of my learned brother, AYOBODE OLUJIMI LOKULO-SODIPE, JCA, and I am entirely in agreement with him on the reasoning and conclusion reached.

I too find the appeal unmeritorious and it fails. The appeal is hereby dismissed and judgment of lower Court affirmed.
I also abide by all consequential orders made in the lead Judgment.

Appearances:

E. Agbada For Appellant(s)

O. K. Ebowe For Respondent(s)