HIGH PERFORMANCE DISTRIBUTION LTD. v. SAMSUNG ELECTRONICS COMPANY LTD & ANOR (2021)

HIGH PERFORMANCE DISTRIBUTION LTD. v. SAMSUNG ELECTRONICS COMPANY LTD & ANOR

(2021)LCN/14946(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, January 29, 2021

CA/L/261/2019

RATIO

BRIEF: WHAT CONSTITUTES REPLY BRIEF

A Reply brief is not an opportunity to re-argue an Appeal and/or improve on it. Decisions on this are replete. See Akayepe Vs Akayepe (2009) LPELR – 326 SC; Mathew Vs State (2019) LPELR – 46930 (SC). PER ITA GEORGE MBABA, J.C.A.

EVIDENCE: EFFECT OF FAILURE OF A PARTY TO CALL EVIDENCE IN SUPPORT OF HIS AVERMENT

It is also the law that, where a party (as witness) does not give evidence and adopt his witness statement on oath, filed along with the suit (in a front-loaded process, fought by writ of summons) that such statement on oath ceases to be part of the evidences, being deemed, abandoned. See Nigerian Dredging & Marine Ltd Vs Gold (2007) ALL FWLR (Pt.355) 505 at 519, where my lord, Ogunwumiju J.C.A. (as she then was) held:
“It is not sufficient to make any allegation in a pleading, credible evidence must be led in proof of it. The effect of failure of a party to call evidence in support of his own averment, which is denied by the adverse party’s pleading, is that that averment is deemed abandoned, notwithstanding evidence supporting it produced by the adverse party.”

See also Onwufuju Vs Orohwedor (2020) LPELR – 50767 CA; Obeya Vs Okpoga Micro Finance Bank Ltd (2019) LPELR – 47615 (CA); Idris Vs ANPP (2008) 8 NWLR (Pt.1088) 1. PER ITA GEORGE MBABA, J.C.A.

CONTRACT: NATURE OF A MEMORANDUM OF UNDERSTANDING

Of course, it is appreciated that a Memorandum of Understanding (M.O.U.), generally, is a prelude to contract, or letter of intent for parties to enter into a formal contract spelling out the basis for such relationship. See case of BPS Construction & Engineering Company Ltd Vs F.C.D.A. (2017) LPELR – 42516 (SC), where the Supreme Court defined the meaning of Memorandum of Understanding relying on the Blacks’ Law Dictionary, 8th Edition at page 1006, as “letter of intent.” The Court added that M.O.U. is:
“A written statement detailing the preliminary understanding of parties who plan to enter into a contract or some other agreement.
A letter of intent is not meant to be binding and does not hinder parties from barging with a third party. Business people typically mean not to be bound by a letter of intent and Courts ordinarily do not enforce one; but Courts occasionally find that a commitment has been made… From the above definition, it is, clear that a memorandum of understanding or letter of intent, merely sets down in writing what the parties intend will eventually form the basis of a formal contract between them. It speaks to the failure happening of a more formal relationship between the parties and the steps to take to bring that intention to reality. From the definition given above, notwithstanding, the parties thereto are not precluded from entering into negotiations with a 3rd party on the same subject matter.” Per Kekere-Ekun, J.S.C. PER ITA GEORGE MBABA, J.C.A.

DAMAGES: NATURE OF GENERAL DAMAGES

In law, general damages accrue to the injured party, the moment a defendant or respondent is held liable to the Plaintiff, for the wrong or injury complained of. This is because general damages flows from the wrong/injury done by the defendant, automatically, and does not even require pleading it, or proof of same by existential evidence. See the case of Okanu Vs Anoruigwe & Anor (2019) LPELR – 48836 (CA); UBN Vs Chimaeze (2014) 9 NWLR (Pt.1411) 166; Mekwunye Vs Emirate Airline (2019) LPELR – 46553 SC; Odiba Vs Azege (1998) 9 NWLR (Pt.566) 370; (1998) LPELR – 2215 (SC).
The fact that special damages (which must be pleaded and proved strictly) has not been proved in a case is no excuse, and cannot prevent a Court from awarding general damages, where the claims of a Plaintiff establishing the wrong by the defendant, succeeds. See the recent decision of this Court in the case of Onwuekwe Vs Eddy Hi-Tech Engineering Ltd (2020) LPELR – 51950 (CA), where we held:
“It is also a flawed legal reasoning, in my opinion, to think or say that, because the special damages could not be proved, in the circumstances opined by the learned trial Judge, the Suit should be struck out! This is because, by law, failure to establish special damages (which must be proved, strictly), does not mark an end to a Suit, which has been established, otherwise. A claim is established, once the Court finds merit in the case, even when the special damages, claimed, cannot be established. In that circumstance, the Court has to grant the relief(s) sought, award the necessary general damages, while refusing the special damages. This is because, while special damages must be proved, strictly, to succeed, general damages is always due, once the Respondent is found liable to a claim, as it flows from the wrong done by the Respondent. See the Cases of Okechukwu Vs UBA Plc & Anor (2017) LPELR – 43100 CA; Iyere Vs Bendel Feed & Flour Mill Ltd (2008) LPELR – 1578 (SC); Odulaja Vs Haddad (1973) LPELR 2240 (SC); Onyiorah Vs Onyiorah & Anor (2019) LPELR – 49096 (SC); Agu Vs General Oil Ltd (2015) LPELR – 24613 SC. PER ITA GEORGE MBABA, J.C.A.

Before Our Lordships:

Ita George Mbaba Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Between

HIGH PERFORMANCE DISTRIBUTION LIMITED APPELANT(S)

And

1. SAMSUNG ELECTRONICS COMPANY LTD 2. SAMSUNG ELECTRONICS WEST AFRICA RESPONDENT(S)

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this Appeal on 17/12/2018, against the Judgment of Lagos High Court, in Suit No. LD/ADR/649/2013, delivered on 2nd October, 2018 by Hon. Justice W. Animahun, whereof the Learned trial Judge entered judgment for the claimant in respect of a part of the reliefs sought, namely, for return of the unsold Samsung supplied to the Claimant by the defendants and for the defendants to receive same from Claimant and pay for them in their current sales price to distributors/importers; and by way of consequential order, for the Chief Registrar of the Honourable Court to witness the exercise, and the returned products (and their prices) to be documented by the Registrar, or any appointed officer of the Court, to do so. Cost of N250,000.00 was awarded to the claimant.

At the trial Court, the claimant had sought the following reliefs from the defendants, jointly and severally:
(1) That the defendants should pay for the unsold stock in the value of US$310,933.00 (Three Hundred and Ten Thousand Nine Hundred and Thirty Three United State Dollars only) or the stock be collected back from the Claimant by the defendants, and duly paid for.

(2) That the defendants should pay by standing in place of the amount owed by the defaulting partners who are still owing the claimant. The receivable as at the date of filing this action stands in excess of US$497,000 (Four Hundred and Ninety Seven Thousand United States Dollars.)
(3) The loss incurred selling the stock at a lesser price in order to push it out before it becomes obsolete due to constant technological development which stands in the sum of US$482,154.00 (Four Hundred and Eighty Two Thousand, One Hundred and Fifty Four Dollars)
(4) That damages in form of compensation in the sum of US$5,000,000.00 (Five Million United States Dollars only) be paid to the Claimant for breach of contract and loss suffered on account of the following:
(i) Inability to service financial facility obtained from the banks by the Claimant on account of the deliberate and unexpected distributorship agreement during the subsistence of contract by the defendants.
(ii) Pay off for human capital engaged and trained specifically for the implementation of the Samsung distributorship agreement.
(5) Cost of the Action.

(6) Exemplary damages in the sum of US$3,000,000 (Three Million United Dollars only).” (Claimant later Amended the Statement of Claim)

On being served with the Statement of Claim, the Defendants challenged the same with 28 Paragraph Statement of defence. The case went to trial and the claimant called one witness. The Defendants, each called one witness too. And after hearing the case and considering the evidence and addresses of Counsel, the trial Court held for the claimants, in part, as follows:
“… The denial of the relationship of the Defendants is a white lie. I said so because, the supply of Samsung products to the Claimant by the 1st Defendant ceased on termination of the M.O.U. executed between the Claimant and the 2nd Defendant. Meaning that, the 1st Defendant acted on a decision taken by the 2nd Defendant. The Defendants are therefore estopped from denying the existence of agency relationship between them. Estoppels is one of the acceptable means of creating an agency relationship between parties… Having reached the above decision, I do not think it is still necessary to determine the capacity in which

exhibits 1 and 2 was (sic) made. In other words, it has become inconsequential that the name of 1st Defendant did not appear in them. The principal allegation made by the Claimant was that the M.O.U. was terminated about one month before its expiration. This gives an impression that the Claimant wouldn’t have had a cause of action if the Defendants had waited for the M.O.U to expire in December, 2012 and refuse to renew same. The exception will be on the alleged right of the Claimant to return unsold products to the Defendant, on introduction of new products or on expiration of the M.O.U. I will come back to this soon.
On the loss occasioned by the pre-mature termination of the M.O.U, it is my view that it is special damages. It qualifies as special damages, because the claimant is only entitled to loss of sales it would have made between the date of termination of the MOU and the expiry date. This requires the Claimant to support the claim with evidence of its sales, either per day, per week or per month. Claimant’s invoices/receipts or its statement of account are relevant to substantiate the loss. With the nature of the business of the

Claimant, oral evidence will not suffice to substantiate the damages suffered as a result of untimely termination of the MOU. Besides exhibits 1 & 2 (MOU), all the other exhibits (3 – 9) tendered in the Suit are correspondences between Counsels. These are irrelevant to the loss suffered.
There is no credible evidence of the products sold at lesser prices and the margin of reduction in prices. These are facts needed to assess the US$482,154 (Four Hundred and Eighty Two Thousand, One Hundred and Fifty Four Dollars), claimed for this head of claim. There is no evidence of the workers paid off and the amount received by each one of them. As special damages, this claim ought to be particularized… also the law is that facts must be proved by the best evidence available…
In view of the above, reliefs 3 and 4 fail and are hereby dismissed. Additional reason why the two reliefs should fail is that these heads of claim are not within the contemplation of the parties. There is no evidence that the Claimant’s business was financed by a loan to the knowledge of the Defendants…

Claim 2 for the Defendants to pay the debt owed the Claimant by its partners that Samsung products were sold to, is unreasonable. This was pleaded in paragraph 15 of the Statement of Claim with a notice that their names shall be relied upon at the trial of the Suit. The refusal of the Claimant to tender their names, therefore raises a presumption under Section 167(d) of the Evidence Act, 2011. The debts were incurred in the normal cause of business relationship between the Claimant and its partners. Same cannot be passed to the Defendants. They remain debts due the claimants, and the claimant can recover them by filing actions for their recovery.
I am left with relief number one for US$310,933.00 (Three Hundred and Ten Thousand, Nine Hundred and Thirty Three Dollars) being the value of unsold products or their return to the Defendants, with an order for the Defendant to pay for them. Again, the monetary part of the relief fails, because of the failure of the claimant to particularize how he arrived at the figure.
The claim for return of the unsold products was pleaded and given evidence upon by the claimant. DW2 admits this under his cross examination, where he said:

“Yes, Samsung recalled some products from the markets in 2016. Samsung Corporation bored (sic) the less.”
In view of the admission, the clam for return of unsold products to the Defendants succeeds. Accordingly, judgment is hereby entered for the Claimant as follows:” (See Pages 736 to 738 of the Records of Appeal).

That is the decision the Claimant appealed against (though in its favour), being aggrieved, as per the Notice and Grounds of Appeal, on Pages 739 to 744 of the Records, with five (5) grounds of Appeal. Appellant filed its brief on 18/4/2019 and distilled five Issues for the determination of the Appeal, as follows:
(1) Whether the Court below erred in law, when it did not evaluate all the evidence placed before the Honourable Judge specifically exhibits 1 – 24 attached to the amended statement of claim but ignored them, totally, resulting in miscarriage of justice and has brought the business of the appellant to a halt. (Ground 1)
(2) Whether the Court below erred in law and misdirected himself (sic) when it concluded in favour of the Appellant that the respondents told a white lie in respect of the totality of their

submissions but yet did not give judgment to the Appellant as required by law. (Ground 2)
(3) The Learned Judge erred in law and misdirected himself when he did not consider the hardship brought on the appellant by the respondents based on the facts that the business of the Appellant is credit driven and without bank loan the appellant cannot service. (Ground 3)
(4) The learned Judge erred and misdirected himself when he concluded that the contract between the appellant and respondents was terminated by the respondents before its expiration and yet did not make the respondent pay for this brazen breach (Ground 4)
(5) The Learned Judge erred in law and misdirected himself on the cost awarded to the appellant, despite all the pain and suffering that the respondents had made go (sic) through as a result of the serious breach of contract by the respondents against the claimant. (Ground 5)

The Respondents filed their Brief on 19/6/2019 and distilled two Issues for the determination of the Appeal, as follows:
(1) Whether the Lower Court was right in dismissing the Appellant’s claims on the ground that the Appellant failed to support

the claims with credible evidence (Grounds 1, 2, 3 and 4)
(2) Whether the Lower Court was right in awarding the sum of N250,000 (Two Hundred and Fifty Thousand Naira) as cost to the Appellant (Ground 5)

The Respondents also filed a cross Appeal, as per the Notice of Cross Appeal filed on 30/11/2020. (More will be said on his, later).

Arguing the Appeal on 10/12/2020, Appellant (who actually won the case, partially), through its Counsel, Olukayode Olatunji, Esq., on issue 1, answered in the affirmative, saying that the trial Court failed to evaluate all the evidence placed before it to reach the right decision; that it ignored all the documents tendered; never referred to any of them, but only addressed the documents attached to the original statement of claim; Counsel argued that if the trial Court had considered the documents attached to the Amended Statement of claim, Appellant would have had judgment; that the special damages were particularized inside the said documents. He referred us to Pages 241 to 243 and 247 to 336 of the Records, where he said all the exhibits pleaded were disclosed for the Court’s consideration, but

unfortunately, the trial Court failed to look at them, resulting in miscarriage of justice. He relied on some cases to establish what amounts to miscarriage of justice, including Oguntayo Vs Adelaja (2009) 15 NWLR (Pt.1163) 150; (2009) LPELR – 2353 (SC); Onagoruwa Vs State (1993) 7 NWLR (Pt.303) 49.

Counsel urged us to review the case (evidence) to arrive at the correct decision, and relied on Oredoyin Vs Arowolo (1989) 4 NWLR (Pt.114) 172 SC; Inakoju Vs Adeleke (2007) NWLR (Pt.1025) 423 SC; Jadesimi Vs Okotie Eboh (1986) 1 NWLR (Pt.16) 264 SC; Plateau Investment & Property Dev. Co. Ltd Vs Philip Ebhota & Ors (2001) 4 NWLR (Pt.503). He urged us to invoke Section 15 of the Court of Appeal Act, to give judgment to the Claimant (Appellant) on the issue.

On issue 2, whether the trial Court erred or misdirected itself, when it held in favour of claimant, that the respondents told a white lie, and yet would not give judgment to claimant on the substantial issues. Counsel answered in the affirmative. He said that it was obvious that all the parties to the case were all parties to the contract, but the respondents denied totally, and even

claimed that they did not know the Appellant; he said that the trial Court rightly held that the respondents were lying, yet failed to give judgment to Appellant on that basis, causing the Appellant to be groaning under the heavy yoke of indebtedness to the bank resulting from the contract with the Respondents. He relied on the case of Babatunde Vs Model Ind. (Nig) Ltd (2004) 9 NWLR (Pt. 619) on how to weigh the balance of evidence and determine where it preponderates. He restated that, if the totality of the evidence had been considered by the trial Court, Appellant would not be left in the sorry state it was in. Counsel relied on the case ofBiyo Vs Aku (1996) 1 NWLR, to say that on prove of breach of contract, general damages, which is presumed by law, would flow and follow. He also relied on Mirchandani Vs Pinheiro (2001) 3 NWLR 561.
On issue 3, whether the trial Court erred and misdirected itself, when it did not consider the hardship brought on Appellant by the respondents, based on the fact that the business of the Appellant was credit driven and depended on bank loans to survive, Counsel answered in the affirmative; he said that Court is to do

justice, where tears of the oppressed are wiped away; that this was not done by the trial Court and Appellant was still suffering from untold hardship caused by the respondents breach of the contract. Counsel said that having found out that the respondents told a white lie, it was for the trial Court to hold that the respondents told the lie to evade liability and consequently hold them liable to the appellant’s claims. He relied on the case of UBA Plc Vs BTL Ind. Ltd (2006) 19 NWLR 75 on the essence of damages in breach of contract, which is restitution. He said that general damages is usually awarded to assuage the suffering of the Plaintiff from the acts of the defendant, and is a matter of inference, and the amount awardable is at the discretion of the Judge. He relied on Idahosa Vs Oronsaye (1959) SCNLR 407; UBN Ltd Vs Odusote Bookstores Ltd (1995) 9 NWLR (Pt.421) 558. He added that a party wronged by a breach of contract is duty bound to mitigate his loss. Consequently, Appellant would not be entitled to compensation for any remote damage arising from neglect or refused to take mitigating steps; that in this case, the respondent had a duty to take steps to avoid the loss of expected profits it claimed.

He said that in this case Appellant had mitigated its losses, hence it sold at lower prices and yet the amount of the balance clearly pleaded and attached in the amended statement of claim was not alluded to by the trial Court – Counsel referred to pages 479 – 482 of the Records. Counsel argued that, if Appellant did not sell the product at the reduced costs to mitigate the losses, the same would have remained in the warehouse, as unsold products, to be returned to the respondents. He then wondered who would be responsible for what was sold at a lesser price and the balance of US$482,154, going by the judgment of the trial Court. He urged us to intervene and interfere as the decision of the trial Court relating to the award, called for the interference.

On issue 4, whether the trial Court erred or misdirected itself when it concluded that the contract was terminated by defendants before its expiration date, and yet did not make the respondent to pay for the brazen breach, Counsel answered in the affirmative. He argued that the trial Court was right to hold that respondent had

breached the contract before the expiration date; that the respondents should have been made to pay for the breach of contract, rather than made to get away, on the basis of technicalities, eroding the confidence reposed in the Court system.

Counsel referred to what the trial Court said on page 14 of its judgment, but argued that, what it meant, in effect, was that appellant may find it difficult to get general damages from the Court if the appellant had waited till the end of December; but he said that definitely special damages will be awarded in respect of the losses incurred from the unsold products and products sold at lower prices as losses lay where it falls. (See paragraph 5 of the argument on Issue 4 – the Appellant’s Brief was not paginated!) He relied on the case of Lamb W.T. & Sons Vs Goring Brick (1932) Q.B.I. to the effect that defendants were in serious breach of contract, having unilaterally cancelled the contract.

He relied on Water Vs Sky II (Nig.) Ltd (2011) 3 NWLR and other cases to say that, where evidence is adduced in support of pleaded facts and such evidence is credible, unchallenged and uncontroverted, the

Court ought to act on it; that the trial Court cannot reject such evidence, without giving sufficient reasons for doing so. SeeLSDPC Vs NL & SF Ltd (1992) 5 NWLR (Pt.244) 653; Obmiami Brick and Stone Ltd Vs ACB Ltd (1992) 3 NWLR (Pt.229) 260; Ikuomola Vs Oniwaya (1990) 4 NWLR (Pt.146) 617.

He argued that, though special damages must be pleaded and proved, strictly, it did not require special skill to do so; that it was because the trial Court did not consider all the materials placed before it, that made it to fail to award the said damages. He relied on Olufosoye Vs Fakorede (1993) 1 NWLR to urge us to interfere with the findings of the trial Court on the point.

On issue 5, whether the trial Court erred on the cost awarded to Appellant, despite all the pain and suffering the Respondents caused it, as a result of the breach of contract, Counsel answered in the affirmative. He said that cost follows event and must be awarded to a successful party; that though it is not to be punitive, it must be seen to be reasonable, having regards to the claims and the consequent breach, which he said was enormous, but the learned Judge only awarded a paltry

sum as cost of in this case. He said that the case had lasted for about 5 years and so the cost was paltry and should be reviewed upwards by us.

He urged us to resolve the Issues for Appellant and to allow the Appeal.
Responding, Counsel for Respondents, Uchenna Njoku, Esq., who settled the Brief, on their issue 1, said that a litigant who seeks redress can only succeed when his case, successfully, stands on the tripod of facts, evidence and the law, needed to establish the case. He said that the Appellant’s case was one for breach of contract; that the facts pleaded in the 1st amended statement of claim was to the effect that Respondents prematurely terminated the contract as per the Memorandum of Understanding (MOU), Exhibits 1 and 2; that it (Appellant) was forced to sell its stock at a lesser price to avoid them becoming obsolete due to constant technological development, thereby resulting in losses; that Appellant could not sell some of the stock; that Appellant was owed by some of its customers and that Appellant was indebted to its bankers and employees.

Counsel said it was on the basis of the above narrative that the Appellant set up its claims in the Amended Statement of Claim (Page 482 of the Records); Counsel noted that Appellant called only one witness and tendered nine exhibits, including the MOUs between it and the 2nd Respondent, while 7 other exhibits were letters. Counsel said that other than the 9 exhibits, there was no other piece of documentary evidence tendered by the Appellant; that after reviewing the evidence the trial Court had stated as it did, on pages 737 – 738 of the Records (earlier reproduced).

Counsel said, the above decision of the trial Court unequivocally demonstrated that Appellant did not only fail in pleading its claims, with particulars, as required by law, but more fundamentally, failed to present any credible evidence to support the claims; he said that the claims thus stood on nothing and were bound to fail. Counsel said that in attacking the judgment of the trial Court, Appellant failed to acknowledge that the only part of the relief one granted by the Court was not based on any evidence presented by Appellant, but on what the trial Court construed (or misconstrued) as admission. He referred us to the judgment on Page 738 of the Records

and said that despite that decision (which is the basis of the Cross – Appeal), which gave Appellant what it did not deserve, Appellant still came up with this Appeal and wrongly faulted the decision of the trial Court; alleging that the trial Court totally ignored the documents attached to the amended statement of claim; Counsel said that in Appellant’s imagination, “it was inside these documents that the special damages were particularized.”

Counsel said Appellant’s contention was thoroughly misconceived and misguided, as it proceeded from gross misapprehension of the law on how evidence, especially documentary evidence, is presented in an action commenced by writ of summons; he said that Appellant was wrong to have expected the trial Court to go through the forage or heap of documents attached to the Amended Statement of claim, which were never tendered as exhibits. He said that a Court of law does not act on documents that are not tendered and admitted as exhibit before it. He relied on Nigerian Ports Plc Vs B.P. PTF LTD (2012) 18 NWLR (Pt.1333) 454 at 466; Oladele Vs Aromolaran II (1996) 6 NWLR (Pt.453) 490;

Brawal Shipping Nig. Ltd Vs F.I. Onwadike Co. Ltd & Anor (2000) SC 23; Desemyof Nig. Ltd Vs Kwara State Govt. & Ors (2018) LPELR – 45705 CA; Oranika Vs State (2018) LPELR – 45481 CA. Relying on the above, Counsel said the trial Court was right to ignore the documents dumped on the Court. Counsel said that the burden is on the party alleging to establish the existence or non-existence of a thing and against whom judgment would be given, if no evidence were produced. He relied on cases, including Elias Vs Disu (1962) 1 ALL NLR 214; Combined Trade Ltd Vs All State Trust Bank Ltd (1998) 2 NWLR (Pt.576) 56.

He added that a Plaintiff should not rely on the weakness of the case of defendant, but rather on the strength of his own case. Thus, a Plaintiff (like Appellant) who fails to prove the relief sought, must go home without victory. He relied on A.G. Anambra State Vs Onuselogu (1987) 4 NWLR (Pt.66) 547; Tokimi Vs Fagite (1999) 10 NWLR (Pt. 624) 588; Olowu Vs Olowu (1985) 3 NWLR (Pt.13) 372 (among other cases), he added that documents tendered as exhibits must be demonstrated and linked to the case of the party tendering it; that Appellant

did not only fail to tender the document but also did not demonstrate and/or link them to the case at the trial. He relied on Esezobor Vs Said (2018) LPELR – 46653 (CA); Ladoja Vs Ajimobi (2016) LPELR – 40658 (SC); CPC Vs INEC (2011) 18 NWLR (Pt.1279) 493, on the need to reject documents dumped on the Court.

On this case, Counsel submitted that Appellant’s witness statement accompanying the Amended Statement of Claim was not even put in evidence; that Appellant did not present any evidence (oral or documentary) on which the Lower Court could have relied upon to grant the reliefs sought, aside from the fact that oral evidence alone could not have sufficed in this case, as the law remains that documentary evidence remains the hanger to test the credibility of oral evidence. See CDC (Nig.) Ltd Vs SCOA (Nig.) Ltd (2007) 6 NWLR (Pt.1030) 300 SC; Ogbeide Vs Osifo (2007) ALL FWLR (Pt.365) 548 (CA).

Counsel added that, because the statement accompanying Appellant’s 1st Amended Statement of Claim, was never brought into evidence as the witness never stepped into the witness box to adopt it, and be cross examined on it, the effect of

the same was that the entire pleadings in the 1st Amended Statement of Claim were, automatically, abandoned. He relied on the Nigerian Dredging & Marine Ltd Vs Gold (2007) ALL FWLR (Pt.355) 505.

Counsel added that a Court of law acts on evidence not on sentiments; thus Appellant was attempting to whip up sentiment, when alleging that the lower Court did not consider the hardship brought on the Appellant by the respondents, based on the facts that the business of the Appellant was credit driven and without bank loan the appellant could not survive. He relied on PDP Vs IDABOH & Ors (2017) LPELR – 43404 (CA).

Counsel said that the trial Court did not make any finding on any breach of contract against the Respondents; that Appellant had contended wrongly by saying that “the learned trial Judge having found that the respondent were in breach of contact (sic) but did not make them pay for the consequences of breach, thereby creating an impression that a party to a contract can commit serious breach and yet get away with it, without a scratch by the law…; that that was capable of eroding the confidence in the Court system.

Counsel said the above contention was not only incorrect, but also, clearly misrepresented the judgment of the trial Court, as that was not the purport of the trial Court, when it said:
“The principal allegation made by the Claimant was that the MOU was terminated about one month before its expiration. This gives an impression that the Claimant wouldn’t have had a cause of action if the Defendants had waited for the MOU to expire in December, 2012 and refuse to renew same.” Page 736 of the Records.

He said that as it is apparent in the above quoted portion of the judgment, his lordship never made any finding of breach of contract against the Respondents and there was no basis for such findings, especially as the Appellant never sought a declaration that Respondents breached any contract, Counsel relied on the case of Agbi Vs Ogbeh (2006) LPELR – 240 (SC), to say that a Court cannot grant a party what he did not ask for. See also The Nigeria Air Force Vs Shekete (2002) 12 SCNJ 35 at 52 – 53.

On issue 2, whether the trial Court was right to award cost of N250,000, Counsel said Appellant’s Counsel founded his argument on a

wrong premise, when he said “that for a case that lasted about 5 years, the amount of cost awarded was so paltry that it needs to reviewed upward.”

Counsel noted that Appellant who was awarded the cost, had raised a ground of Appeal, that the trial Court erred in awarding cost to it (Appellant); thus, the argument of the cost being paltry, considering the duration of the case – 5 years – was untenable. He also noted that, by that ground of Appeal, Appellant was admitting it did not deserve the cost, or that in the circumstances of the case, the cost was not warranted or justified against the Respondents!

However, Counsel argued that award of cost is always at the discretion of the Court, provided it is exercised judiciary and judiciously. He relied on the case of University of Uyo Vs Akpan (2013) LPELR – 1995 (CA) and Imperial Homes Mortgage Bank Vs D-Var consulting Ltd (2016) LPELR – 40319 (CA). Counsel also said that award of cost is compensatory, not punitive, and relied on the case of Jaiyeola Vs Abioye (2002) LPELR – 7169 CA; Mekwunye Vs Emirate Airlines (2019) LPELR – 46553 (SC).

Counsel concluded that Appellant even got more than it deserved, considering the fact that its claims were dismissed except an aspect of it; he said that Appellant should not even be complaining against cost awarded to it, in the circumstances of the case. He urged us to resolve the Issues against Appellant and to dismiss the Appeal.

RESOLUTION OF THE ISSUES
Appellant had filed a Reply Brief on 5/12/2020, which, in the main, appeared to be a rehash of the Appellant’s argument in the brief, to improve same, particularly, when Appellant’s Counsel engaged in lengthy argument on what he termed fundamental vices in Respondents’ brief, bothering on facts (alleged distortion of facts by Respondents). On whether or not the Appellant’s witness statement, accompanying the 1st Amended Statement of Claim, was put in evidence, Counsel said it was and that the Respondents did not deny the facts and documents pleaded by Appellant in the Amended Statement of Claim by filing consequential amendment; that it implied Respondent had admitted the facts pleaded in the Amended Statement of Claim! A Reply brief is not an opportunity to re-argue an Appeal

and/or improve on it. Decisions on this are replete. See Akayepe Vs Akayepe (2009) LPELR – 326 SC; Mathew Vs State (2019) LPELR – 46930 (SC).

Appellant’s Counsel is expected to know that pleadings of facts are different from evidence required to establish the facts; that where no evidence is led on the pleadings, or any part thereof, the same is considered to have been abandoned by the party that pleaded it. It is also the law that, where a party (as witness) does not give evidence and adopt his witness statement on oath, filed along with the suit (in a front-loaded process, fought by writ of summons) that such statement on oath ceases to be part of the evidences, being deemed, abandoned. See Nigerian Dredging & Marine Ltd Vs Gold (2007) ALL FWLR (Pt.355) 505 at 519, where my lord, Ogunwumiju J.C.A. (as she then was) held:
“It is not sufficient to make any allegation in a pleading, credible evidence must be led in proof of it. The effect of failure of a party to call evidence in support of his own averment, which is denied by the adverse party’s pleading, is that that averment is deemed abandoned, notwithstanding evidence supporting it produced by the adverse party.”

See also Onwufuju Vs Orohwedor (2020) LPELR – 50767 CA; Obeya Vs Okpoga Micro Finance Bank Ltd (2019) LPELR – 47615 (CA); Idris Vs ANPP (2008) 8 NWLR (Pt.1088) 1.

I shall consider this Appeal on the two Issues distilled by the Respondents, as I think, the same are more apt, as the issue 1 tends to summarise Appellant’s issues 1, 2, 3 and 4, while Respondent’s issue 2 agrees with Appellant’s Issue 5.

Was the trial Court right to dismiss Appellant’s claims (except the relief 1), when it held that Appellant did not produce credible evidence to sustain the claims?

At this point, I think it is necessary to summarise the facts of the case at the lower Court. The Appellant said it had entered into a quarterly agreement with the Respondents by which they had a distributorship relationship, for Appellant to be distributing Respondents’ products in Lagos and other parts of Nigeria. Towards this end, Appellant established offices in strategic locations in the Country, where it employed workers to man the offices. Everything went well, and in the

process, Appellant made over 30 Million Dollars as turnover for the Defendants, within a short period; but to Appellant’s surprise, before the expiration of the last quarterly agreement with Respondents, the Respondents, unilaterally, terminated the contract, without notice to the Appellant. The Respondents went directly to the dealers, that is, the channeled partners that had been created by the Appellant and they (Respondents) informed the said partners that Appellant was no longer their (Respondents’) distributor. That, naturally, led to the dealers stopping to deal with the Appellant, causing Appellant colossal loss, which it had not recovered from. The Appellant pleaded some documents in the Amended Statement of Claim, to buttress its case. At the hearing, Appellant’s witness, Louis Nwadiash, head of Mobile Unit, or MD of the Claimant, simply, relied on the Statement on Oath, which he made at the filing of the Amended pleading and the list of Documents as reproduced on Pages 233 – 240 of the Records (as Appeal).

See Pages 673 – 677 of the Records, where CW1 testified and stated:
“I rely on the documents in my statement on Oath and in the list of Documents.”

He adopted his statement on Oath and tendered the said Documents – 9 of them, marked “Exhibits 1 to 9”, without objection – including the M.O.U. (Memorandum of Understanding) between Appellant and 2nd Respondent – Exhibits 1 & 2.

The Respondents denied having any legal contract with Appellant, saying there was no privity of contract between Appellant and the Respondents. But admitted some dealing between Appellant and 2nd Respondent, as per the M.O.U. but added that the M.O.U. did not evident a contract, because it did not contain what a valid contract ought to have. Respondents asked for dismissal of the claim.

In his judgment, the Learned trial Judge held that the denial of the relationship by the Respondents with Appellant was a white lie (that is false), and said that the 2nd Respondent had acted as agent of the 1st Respondent in the matter that brought about the suit. The Court further held that the supply of Samsung products to the Appellant by the 1st Respondent ceased on the termination of the M.O.U., executed between Appellant and the 2nd

Respondent, meaning that the 1st Respondent acted on the decision taken by the 2nd Respondent; that the Respondents were estopped from denying the existence of agency relationship between them. Thus, the Court held that it was not necessary to further determine the capacity in which the Exhibits 1 and 2 (Memorandum of Understanding M.O.U) was made, that it was inconsequential that the name of 1st Respondent did not appear in the M.O.U!

The trial Court also held that the M.O.U. was terminated by Respondents, one month before its expiration in December, 2012. The Court then, sort of, appreciated Appellant for taking out the action, when it did, noting that if it had waited till the expiration of the contract – M.O.U – that Appellant would have lost ground (cause of action) for the Suit. See Page 736 of the Records of Appeal.

But on the loss occasioned by the pre-mature termination of the M.O.U. the learned trial Judge said:
“… it is my view that it is special damages. It qualifies as special damages because the claimant is only entitled to loss of sales it would have made between the date of termination of the M.O.U. and

its expiry date. This requires the Claimant to support the claim with evidence of its sales, either per day, per week or per month. Claimant’s invoices/receipts or its statement of account are relevant to substantiate the loss. With the nature of the business of the claimant, oral evidence will not suffice to substantiate the damages suffered as a result of the untimely termination of the M.O.U. Besides Exhibits 1 and 2 (M.O.U) all the other exhibits (3-9) tendered in this suit are correspondences between Counsel. These are irrelevant on the loss.” (See page 735 of the Records).

I think with such clear findings of the trial Court (which has not been appealed against or controverted in this Appeal), the Respondents were in gross error to argue or suggest that the trial Court did not make any finding of breach of contract against the Respondents and/or that there was no basis for such finding as they said Appellant did not even seek a declaration for breach of contract!

Of course, it is appreciated that a Memorandum of Understanding (M.O.U.), generally, is a prelude to contract, or letter of intent for parties to enter into a formal

contract spelling out the basis for such relationship. See case of BPS Construction & Engineering Company Ltd Vs F.C.D.A. (2017) LPELR – 42516 (SC), where the Supreme Court defined the meaning of Memorandum of Understanding relying on the Blacks’ Law Dictionary, 8th Edition at page 1006, as “letter of intent.” The Court added that M.O.U. is:
“A written statement detailing the preliminary understanding of parties who plan to enter into a contract or some other agreement.
A letter of intent is not meant to be binding and does not hinder parties from barging with a third party. Business people typically mean not to be bound by a letter of intent and Courts ordinarily do not enforce one; but Courts occasionally find that a commitment has been made… From the above definition, it is, clear that a memorandum of understanding or letter of intent, merely sets down in writing what the parties intend will eventually form the basis of a formal contract between them. It speaks to the failure happening of a more formal relationship between the parties and the steps to take to bring that intention to reality. From the definition

given above, notwithstanding, the parties thereto are not precluded from entering into negotiations with a 3rd party on the same subject matter.” Per Kekere-Ekun, J.S.C.

This case, at hand, is not actually on the issue of whether the Exhibits 1 and 2 (MOU) constituted a contract, capable of fencing off a 3rd party from taking the benefit of the intents and understanding between the Appellant and the Respondents in this case, as per the MOU, but rather whether the commitment which the parties thereto had made or were induced to commit themselves should not be respected or honoured. It is obvious in this case that the parties went beyond the intent in M.O.U. and agreed to relate and actually related in contract of distributorship.

Of course, the trial Court was careful, when it said that the pre-mature termination of the M.O.U. (MOU which had caused the Appellant to act to the benefit of Respondents) had resulted in suffering/damages to the Appellant, which needed to be remedied.

To that extent, I think the trial Court was right to hold that Respondents were estopped from denying the obvious, that by the M.O.U. (letters of intent which they

signed with the Appellant, had matured establishing a contract relationship with the Appellant, to do business, and had caused the Appellant to act (to its detriment) at the time Respondents terminated it, pre-maturely! That also means (like the trial Court observed), if Appellant had waited for the MOU to expire in December, 2012, there would have been no cause of action to pursue by Appellant. Appellant was, therefore, entitled to damages from the Respondent for the termination of the contract, created by the Memorandum of Understanding, prematurely, a month to its expiration, causing Appellant losses.

Thus, even where the special damages could not be established (as the trial Court held, that Appellant did not lead evidence to substantiate it), that should not have stopped the trial Court from pronouncing the appropriate/requisite compensation for Appellant in general damages, for the losses occasioned Appellant by the Respondents’ act of terminating the M.O.U., prematurely.
In law, general damages accrue to the injured party, the moment a defendant or respondent is held liable to the Plaintiff, for the wrong or injury complained of. This

is because general damages flows from the wrong/injury done by the defendant, automatically, and does not even require pleading it, or proof of same by existential evidence. See the case of Okanu Vs Anoruigwe & Anor (2019) LPELR – 48836 (CA); UBN Vs Chimaeze (2014) 9 NWLR (Pt.1411) 166; Mekwunye Vs Emirate Airline (2019) LPELR – 46553 SC; Odiba Vs Azege (1998) 9 NWLR (Pt.566) 370; (1998) LPELR – 2215 (SC).
The fact that special damages (which must be pleaded and proved strictly) has not been proved in a case is no excuse, and cannot prevent a Court from awarding general damages, where the claims of a Plaintiff establishing the wrong by the defendant, succeeds. See the recent decision of this Court in the case of Onwuekwe Vs Eddy Hi-Tech Engineering Ltd (2020) LPELR – 51950 (CA), where we held:
“It is also a flawed legal reasoning, in my opinion, to think or say that, because the special damages could not be proved, in the circumstances opined by the learned trial Judge, the Suit should be struck out! This is because, by law, failure to establish special damages (which must be proved, strictly), does not mark an end to a

Suit, which has been established, otherwise. A claim is established, once the Court finds merit in the case, even when the special damages, claimed, cannot be established. In that circumstance, the Court has to grant the relief(s) sought, award the necessary general damages, while refusing the special damages. This is because, while special damages must be proved, strictly, to succeed, general damages is always due, once the Respondent is found liable to a claim, as it flows from the wrong done by the Respondent. See the Cases of Okechukwu Vs UBA Plc & Anor (2017) LPELR – 43100 CA; Iyere Vs Bendel Feed & Flour Mill Ltd (2008) LPELR – 1578 (SC); Odulaja Vs Haddad (1973) LPELR 2240 (SC); Onyiorah Vs Onyiorah & Anor (2019) LPELR – 49096 (SC); Agu Vs General Oil Ltd (2015) LPELR – 24613 SC.
In this case, at hand, the trial Judge had found, as a fact, that the Respondents were, in fact, responsible for the flooding of the property of the Plaintiff, and had caused injury, negligently, which could not be defeated by limitation law.”

In this case, the trial Court had held that the special damages were not proved,

because Appellant did not lead evidence to substantiate it (what they suffered as a result of the premature termination of the M.O.U). Appellant has argued that it had pleaded the documents establishing the particulars of the losses, which the trial Court said needed to be proved as special damages, and that the same (documents) were not opposed by Respondents (having not filed Reply on the pleadings!); Appellant said that the said documents were deemed admitted by the Respondents Appellant had referred us to the Amended Statement of Claim, wherein it pleaded 24 documents!

I think learned Counsel for the Appellant was in grave error, to think and argue that documents pleaded in a case, (which were not tendered as exhibits and no evidence led on) were admitted by the adverse party, and should have been invoked or applied to the benefit of the party who pleaded them, but failed to tender them. The law is trite, that a document or fact, pleaded in a case, on which no evidence is adduced at the trial, and or tendered, is deemed abandoned. And even where a document is tendered but the same is not related to or demonstrated in the case by the party tendering it

to his case, the same is of no probative value to the case, being only dumped on the Court. See Ladoja Vs Ajimobi (2016) LPELR – 40658 (CA); CPC Vs INEC (2011) 18 NWLR (Pt.1279) 493; CDC Nig. Ltd Vs SCOA (Nig) Ltd (2007) 6 NWLR (Pt.1030) 300 (SC); Ogbeide Vs Osifo (2007) ALL FWLR (Pt.365) 548.

I had earlier reproduced the evidence of CW1, when he adopted his statement on Oath and tendered 9 Exhibits (1st and 2nd being the MOU). The trial Court had held that the other seven documents tendered by Appellant’s witness were only correspondences by Counsel, which had no relevance to the special damages claimed. I agree with the finding of the trial Court about the inability of Appellant to prove the special damages. But, as earlier stated, failure to establish the special damages should not have robbed Appellant of general damages in the case, the Court having established pre-mature termination of the M.O.U. I therefore resolve the Issue 1 for Appellant, in part. There was prove of pre-mature termination of the contract, resulting in general damages.

On Issue 2, whether the cost awarded was properly done, I observe that this Issue was rather

strange, as Appellant was the beneficiary of the award of cost. For Appellant to have raised complaint against the cost awarded to him (and in fact, against the whole judgment of the Court below) appears strange.

Whereas, the Issue 5 (and ground 5) by Appellant was that the Judge erred and/or misdirected himself on the award of cost to Appellant, despite all the pain and suffering that Respondents made Appellant to go through, the argument of the issue, rather quarreled about the amount awarded, that it was paltry! That argument was not consistent with the ground of appeal and the issue distilled by Appellant, from the ground. See Nnolim Vs Nnolim (2017) LPELR – 41642 CA, where it was held, relying on Ayangoke Vs Keystone Bank Ltd (2013) LPELR – 21806 CA:
”The governing arguments of appeal is trite, that appeals are argued on issue(s) formulated from on the ground(s) of Appeal, and Appellant is not permitted to wonder outside the confines of the issues, so distilled, in arguing the appeal.”

It should also be stated that cost, awarded by Court to any successful party in a case, is always at the discretion of the Court making the

award, and cannot be faulted, except it was not done judicially and judiciously. See Akinbobola Vs Plisson Fisko Nig. Ltd & Ors (1991) LPELR – 343 SC; Azuoma Vs SPDCN (2019) LPELR – 47582 CA.

I resolve the Issue 2 against the Appellant, and on the whole, allow the Appeal, in part, with regards to the need for the Court to award general damages to the successful party, the trial Court having held that there was premature termination of the Memorandum of Understanding (MOU) by Respondents, to the detriment of the Appellant.

Appellant had asked for 5 Million US Dollars as general damages and 3,000,000.00 US Dollars (Three Million Dollars) as exemplary damages.

I think the sum of (Five Hundred Thousand Dollars) 500,000.00 US$ should be enough to assuage the Appellant, by way of the general damages, together with the cost, awarded.
Parties shall bear their respective costs.

CROSS – APPEAL
The Cross Appeal was filed on 30/11/2020, and deemed duly filed, on 10/12/2020, when the Appeal was heard. The Cross Appellants filed their brief on the same 30/11/2020 and it was also deemed duly filed on 10/12/2020. They

distilled two Issues for the determination of the Cross – Appeal, from the Four (4) Grounds, as follows:
(1) Whether the lower Court was wrong in granting the Cross Respondent a relief that was neither supported by pleadings nor by evidence (Grounds 1,2 and 3)
(2) Considering that the action of the Cross Respondent failed, whether the Cross Respondent was entitled to be awarded cost by the Lower Court. (Ground 4)

The Cross – Respondent filed Cross – Respondent’s Brief on 8/12/2020 which was also deemed duly filed and served on 10/12/2020. The Cross – Respondent adopted, two Issues by Cross – Appellants, for the determination of the Appeal.

Arguing the Cross Appeal, Counsel for Cross-Appellants, Uchenna Njoku Esq., on Issue 1, said the case of the Cross Respondent at the Lower Court was one for breach of contract and sought 4 substantive reliefs; he said that the trial Court rightly dismissed the reliefs 2, 3 and 4, but in respect of relief 1, held as follows:
“… I am left with relief 1 for US$310,933 (Three Hundred and Ten Thousand Nine Hundred and Thirty Three Dollars) being the

value of unsold products or their return to the Defendants, with an order for the Defendant to pay for them.
Again, the monetary part of the relief fails because of failure of the claimant to particularize how he arrived at the figure.
The claim for return of unsold products was pleaded and given evidence upon by the claimant. DW2 admits this under Cross examination, where he said:
“Yes, Samsung recalled some products from the markets in 2016. Samsung Corporation bored (sic) the loss.”
In view of the admission, the claim for return of unsold products to the Defendants succeeds.” (See page 738 of the Records)

Counsel said the above ruling by the trial Court was erroneous and perverse; that while it was correct that the Cross Respondent sought the relief for return of unsold products, there was nothing in its pleading and evidence led, to support that relief; he said that the Cross Respondent did not plead that it had unsold products to be returned and did not lead any evidence thereon; that also neither DW2 nor the Cross Appellant admitted the claims.

Counsel said that the action was founded on alleged breach of

contract in 2012; that the prayer seeking return of unsold stock was in relation to goods claimed to have been purchased from 1st Cross Appellant, prior to the alleged breach of contract and long before the commencement of the action in 2013. Counsel said that all through the Amended Statement of Claim, the Cross Respondent did not plead that it had any unsold products to be returned and for which the Cross Appellants should be ordered to pay. He referred us to the Amended pleading on pages 476 – 482 of the Records. He also added that the Cross Respondent did not bring its witness to adopt the additional witness statement filed pursuant to the Amended Statement of Claim, and so all the averments in the Amended Statement of Claim in respect of which no evidence was led, were deemed abandoned.

Counsel also referred us to the pleading of the Cross Respondent on Paragraph 18 of the Amended Statement of Claim, where the Claimant averred:
“The some negative developments arose out of the deliberate and callous action of the defendants to the Claimant… that when it became apparent that the defendants will not collect the unsold stock back,

contrary to the commitment made during negotiation meeting, the Claimant had to embark on sale of the unsold stock at a reduced price, leading to a loss of US$482,154,000 (sic) (Four Hundred and Eighty Thousand, One Hundred and Fifty Four United States Dollars) Page 479 of the Records).

Counsel said it was therefore evident that the Cross Respondent had sold its unsold stock at a reduced price; that is, that the entire stock was sold, albeit at a discounted price; that that was the basis of the Relief No.3, which the Lower Court dismissed.

Counsel said that, having not pleaded that it had unsold stock to be returned to Cross Appellant, the relief one by Cross Respondent was a non-starter, and was founded on nothing. He relied on the case of DALEK Nig. Ltd Vs OMPADEC (2007) ALL FWLR (Pt.384) 204; Atolagbe Vs Shorun (1985) 1 NWLR (Pt.2) 360; Apena Vs Aileru (2015) ALL FWLR (Pt.790) 1256 SC.

Counsel, however, admitted that by the M.O.U, (as per the pleading of Cross Respondent), the parties had agreed, that whenever the agreement ceased, the Cross Respondent would return unsold stock to Cross Appellants. He referred us to paragraph 13 of the

Amended Statement of Claim, but said that that was all the Claimant said about the issue, without pleading the alleged unsold products.

Again, Counsel said the Cross Respondent did not present any shred of evidence, entitling it to being granted any relief for return of unsold products; he said that the CW1, explicitly, admitted under Cross examination, that the only instrument governing the relationship between Claimant and Defendants was the MOU (Page 678 of the Records); that the CW1 further admitted “in the MOU there was no provision that allows me to return whatever I could not sell to either the 1st or 2nd Defendant.” Page 678 of the Records

Counsel argued that the DW2 did not admit the liability, or that it admitted the allegation for claimant to return unsold stock (product) to cross Appellants. He argued that the trial Court made that holding in error, inspired by a misapprehension of the issue in controversy. He added that DW2’s evidence of recall of defective products in 2016 by the Defendant was, at best, an irrelevant piece of evidence, in that it did not address the issue in contention, and so should have been

ignored by the trial Court. He relied on the case of Ajao & Ors Vs Alao & Ors (1986) LPELR – 285 (SC) and said that the trial Court misapprehended the case of the Cross Appellant and so entered a wrong decision which occasioned miscarriage of justice to the Cross Appellants. He relied on Udengwu Vs Uzuegbu (2003) 13 NWLR (Pt.836) 136.

He added again that the decision for the return of the unsold products was not founded on the pleadings or evidence adduced, but on Counsel’s address; he said that Counsel’s address, no matter how brilliant, is no substitute for evidence. He relied on Okwejiminor Vs Gbakeji & Anor (2008) 5 NWLR (Pt.1079) 172; Chiokwe Vs State (2012) LPELR – 19716 SC.

On the Issue 2, the Cross Appellant, again, said the trial Court was wrong to award the cost to Cross Respondent, especially as the case of Cross Respondent was not successful, except the Issue 1, still strongly disputed in this Cross Appeal. He argued that the award was made against the established principles and urged us to set it aside.

The Cross Respondent’s Counsel, Olukayode Olatunji, Esq., on Issue 1, said Cross

Appellants’ argument was strange. He submitted that Claimant had pleaded the relevant fact in the amended statement of claim. He referred us to some paragraphs of the said pleading, including paragraphs 18, 19. Counsel also urged us to resolve the Issues against Cross Appellant and to dismiss the Cross Appeal.

RESOLUTION OF THE ISSUES IN THE CROSS APPEAL
The main Issue in the Cross – Appeal has to do with whether the unsold products which the trial Court ordered to be returned to the Cross-Appellants, and for the Cross-Appellants to pay their value to Cross Respondent, were pleaded and evidence led on them; and this to be considered in the light of the pleadings and evidence by the Cross Respondent, that:
“When it became apparent that the defendants will not collect the unsold stock back, contrary to the commitment made during negotiation meeting, the Claimant had to embark on sale of the unsold stock at a reduced price leading to a loss of US$482,154,000 (sic) Four Hundred and Eighty Two Thousand, One Hundred and Fifty Four United States Dollars)

Of course, there is evidence that the Claimant (Cross Respondent) had pleaded

what should happen to the unsold stock or products, in paragraph 9 of the Amended Statement of Claim, when it said:
“The Claimant avers that during the negotiation leading to the distributorship agreement, the representatives of the defendants made it abundantly clear that in the event of cessation of the agreement the unsold stock in the custody of the Claimant will be collected back by the Defendants.”

That did not, however, give full information as to the quantum or amount of the unsold stock. And when the Claimant pleaded and gave evidence, that it embarked on sale of the unsold stock, at a reduced price, leading to loss of 482.154.00 dollars, it created room for uncertainty, as to anymore outstanding unsold stock or products left with the Claimant at the time the Defendants unilaterally terminated the contract agreement, capable of ascertaining the basis for the relief 1, which was
“that the Defendants should pay for the unsold stock in the value of US$310,933.00 (Three Hundred and Ten Thousand Nine Hundred and Thirty Three Dollars), or the stock be collected back from the claimant by the Defendant and duly paid for.”

(Page 482 of the Records)

It can, however, be seen that the relief 1 was separate and distinct from the relief 3, which had to do with the losses incurred when the Claimant sold some stock at a lesser price (possibly different from unsold stock in relief 1). The relief 3 claimed, as follows:
“The loss incurred selling the stock at a lesser price in order to push out before it becomes obsolete due to constant technological development which stands in the sum of US$482,154.00 (Four Hundred and Eighty Two Thousand, One Hundred and Fifty Four Dollars).”

Obviously, the two reliefs talked of separate heads of claims, the first being return of unsold products, caught up by the premature termination (amounting to 310,933 dollars); and the other (3rd relief) claim for re-imbursement suffered upon rushing to sell unsold stock (threatened to be made obsolete due to technological development) at lesser prices, leading to loss amounting to 482,154.00 Dollars.

I had earlier held, when I considered the main Appeal, that the Respondents (Cross Appellants) were wrong to say that there was no evidence by Claimant, adopting its witness statement on

oath. There was, and so CW1’s statement on oath, and all the information, therein, were before the lower Court, together with the 9 Exhibits tendered and admitted. (See Pages 483 – 490 of the Records of Appeal). In paragraph 13 of the Statement on oath (Page 484 of the Records), CW1 gave evidence of the agreement by Cross – Appellants to collect unsold stock in its custody (claimant’s) in the event of cessation of the agreement CW1 also attached a letter by Cross Appellants officer, to the effect that, the relationship was that of distributorship, with such option to recover products, unsold.

That appears to agree with the policy of Samsung, which the DW2, confirmed, when he said, under Cross examination:
“Yes, Samsung recalled some products from the market in 2016. Samsung Corporation bored (sic) the loss.”

But I do not think the above has explained the obvious lacuna in the pleading and evidence of the Cross – Respondent, with respect to the said unsold stock in relief 1, considering the unsold stock, which the Claimant hurriedly sold and incurred losses of 482,154 dollars (the subject matter of relief 3).

The very unsold stock (the subject matter of relief 1) for which the trial Court made an order for return to Cross – Appellant and for the Cross – Appellants to pay value for – amounting to 310,933 dollars, was not pleaded, anywhere, and no evidence led to establish its quantum, to determine the alleged value of 310,933 dollars.

Though, Cross Appellants appear to have admitted the policy of recall of products from distributors (and they did in 2016), that does not appear to properly situate in this case in respect of the relief 1, in the absence of clear pleading and evidence, stating the quantum of the said unsold products, at the time of the premature termination of the relationship between Cross Appellants and the Cross Respondent, and after the Cross Respondent had disposed of the unsold stock (threatened to be obsolete) on a give – away (lesser) prices, incurring loss of 482,154.00 dollars!

It should be noted that the entire Appeal and Cross Appeal evoked a lot of sentiments, considering the alleged losses of the Cross Respondent and its indebtedness, in the circumstances. But cases are never decided or determined on the

basis of sentiments and/or feelings of pity, love or hate. A litigant must prove his claim, by leading credible evidence to establish his case, which must also be properly pleaded and articulated. There were obvious shortcomings and flaws in the pleadings and marshalling of evidence, in this case, which, in my view, made the holding of he learned trial Judge in respect of the 1st relief strange, and unsupportable by evidence, adduced.
In the case ofPDP Vs Idaboh & Ors (2017) LPELR – 4340 (CA), it was held:
“… a Court has a duty to do justice in accordance with the law. In the administration of justice, a Court of law does not decide issues or matters on the basis of sentiments or sympathy. See FRN Vs Wabara (2013) 5 NWLR (Pt.1347) 331 at 357 and Olu Ode Okpe Vs Fan Milk Plc & Anor (2017) 2 NWLR (Pt.1549) 282 at 310, Per I.T. Mohammed, J.S.C., where the Supreme Court stated… “In the realm of law, sentiments or sympathy have no place. It is only law and law only that should take its course…” In the earlier case of Mr. Ime Ime Umanah Jnr Vs Nigeria Deposit Insurance Corporation (2016) 14 NWLR (Pt.1533)

458 at 484, the Supreme Court, Per Nweze, J.S.C., stated as follows “… law brooks neither sentiment nor empathy.”

I therefore resolve the 1st Issue for the Cross Appellant.

I cannot see how the 2nd Issue by the Cross Appellant can be considered, differently, from the decision already reached in the main Appeal, when similar issue was considered. The discretion remains that of the Court awarding cost to determine the basis for cost and quantum of cost, when it decides that there is merit in a case.

Even though by this decision in the Cross Appeal, I hold that the trial Court wrongly granted the relief 1 (the basis for the cost awarded), the case of the Claimant (Cross Respondent) is still adjudged, by me, successful, on the basis of the premature termination of the contract relationship between the parties; causing the claimant injuries and suffering, resulting, at least, in general damages. The trial Court had held that the special damages could not be established or substantiated. That, however, conceded damages, nonetheless.

This Cross Appeal, therefore, succeeds, in part and I hereby set aside the order of the trial

Court for the alleged unsold Samsung products (stock) supplied to the claimant by Defendants to receive same and pay for them as per their current sales prices to distributors/importers.
The parties shall bear their respective costs.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: I am opportuned to read in draft the lead judgment delivered by my learned brother, ITA GEORGE MBABA, J.C.A.

The reasoning and conclusion arrived at in the lead judgment are agreed by me with no addition thereto.
I too allow the Appeal in part and also the Cross-Appeal succeeds in part as shown in the lead judgment.

Parties to bear their costs of prosecution and defence of both main appeal and the Cross-Appeal.

ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother ITA GEORGE MBABA, J.C.A. I entirely agree with the reasoning and conclusion reached therein that the appeal and the Cross appeal partly succeed. For no better expression, I adopt the judgment as mine and abide by all the consequential orders as contained in the lead judgment.

Appearances:

OLUKAYODE OLATUNJI ESQ.For Appellant(s)

UCHENNA NJOKU ESQ with him, MRS. J. UCHENNA NJOKU. For Respondent(s)