LABIM LIMITED & ANOR V. THE CHAIRMAN, ONA ARA LOCAL GOVERNMENT & ANOR (2013)

LABIM LIMITED & ANOR V. THE CHAIRMAN, ONA ARA LOCAL GOVERNMENT & ANOR

(2013)LCN/6137(CA)

(2013) LPELR-21115(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 30th day of April, 2013

CA/I/285/2008

RATIO

REPLY BRIEF: PURPOSE OF A REPLY BRIEF

The purpose of a reply brief is as stated in Order 18 rule 5 of the Court of Appeal Rules, 2011. It is to deal with all new points arising from the respondents brief.
A reply brief should not reiterate, rehash, recycle or seek to elaborate on the arguments already made in the appellants brief. As stated by the Supreme Court per Ejiwunmi JSC in Edjerode vs. Ikine (2001) 12 SC Part 11 Page 94.
“A reply brief should be strictly limited to finding answers to questions raised in the respondents brief and which the appellants had not addressed or dealt with in the appellants brief.”PER CHIDI NWAOMA UWA, J.C.A.

REPLY BRIEF: WHEN IT IS NECESSARY

ISSUES FOR DETERMINATION: HOW A PROPER ISSUE FOR DETERMINATION SHOULD BE FRAMED

Looking at the issues for determination as formulated by the parties in this appeal, they mirror each other. That is how it should be. The Supreme Court in Ossai vs. Wakwah (2006) 4 NWLR Part 969 p.208 at p.224 stated that a respondent can only formulate his own issues with a slant favourable to his own case. It is out of order for a respondent to gravitate far away from the issues formulated from the appellant’s grounds of appeal unless he has also filed a cross-appeal or respondent’s notice.PER CHIDI NWAOMA UWA, J.C.A.

CLAIMS FOR LOSS OR PROFIT : A LOSS WHICH HAS CRYSTALLIZED INTO SPECIAL DAMAGES

In the case of Zenith Plastics Industry Ltd. vs. Samotech Ltd. (2007) 16 NWLR Part 1060 Page 315 at P344 this court per Rhodes Vivour JCA (as he then was) held that claims for loss of profit or anticipated profit represent a loss that has crystallized into special damages which must be strictly proved.PER CHIDI NWAOMA UWA, J.C.A.

SPECIAL DAMAGES: HOW THEY SHOULD BE PROVEN AND PLEADED

It is a firmly established rule that special damages must not only be expressly and fully pleaded, but must be strictly proved by credible and satisfactory evidence. See Calabar East Cooperative vs. Ikot (1999) 12 KLR part 93 page 3233 at 3246-3247. In this case the anticipated profit was not strictly pleaded.PER CHIDI NWAOMA UWA, J.C.A.

ANTICIPATED PROFIT: MUST BE ESTABLISHED BY EVIDENCE

COSTS: AWARD OF COSTS IS AT THE DISCRETION OF THE COURT
The law is settled on the award of costs. Award of costs is at the discretion of the court but the discretion must be exercised judicially and judiciously. Costs also follow events. It is also settled that a successful party is entitled to costs unless there are special reasons for depriving him of his entitlement. See Akinbobola vs. Plisson Fisko (1991) 1 NWLR Part 167 page 270 at p.289; Layinka vs. Makinde (2002) 10 NWLR Part 775 Page 358.PER CHIDI NWAOMA UWA, J.C.A.

COST: A SUCCESSFUL PARTY IS ENTITLED TO COST AS OF RIGHT

A successful party is entitled to costs as of right, Cooper vs. Whittingham (1880) 15 ChD 501 at 504; Inneh vs. Obaraye (1957) 2 FSC 59 at 59; Haw Ltd vs. Brown (1973) 4 SC (Reprint) 103.PER CHIDI NWAOMA UWA, J.C.A.

COSTS: THE DIFFERENCE BETWEEN COST AWARDED ACCORDING TO SETTLED JUDICIAL PRINCIPLES AND COST AWARDED IN EXERCISE OF DISCRETION ON PARTICULAR FACTS

WHEN A COURT RAISES AN ISSUE SUO MOTU, THE COURT MUST ADDRESS IT BEFORE THE PARTIES
The issue of frustration of contract is one raised suo motu by the trial Judge. It was not even pleaded by the parties. Where a court decides to raise an issue arising, from a case but not raised by the parties, the court must call on the parties to address it. See Adegoke vs. Adibi (1992) 5 NWLR part 242 page 410. As it is, the “finding” of the court quoted above is a mere obiter dictum. In Bamgboye vs. University of Ilorin (1999) 10 NWLR Part 622 Page 290 at P. 327 also reported in (1999) 6 SC Part 11 Page 72 the Supreme Court held that when a trial court expresses an opinion on an issue not pleaded, such opinion is obiter dictum which if it does not occasion any miscarriage of Justice, the judgment stands. See also Mora vs. Nwalusi & Ors (1962) 2 SCNLR 73; Ayoola vs. Adebayo & Ors (1969) 1 ALL NLR 159 at 154. The issue of frustration of the contract certainly did not occasion any miscarriage of Justice. It did not affect the decision reached.PER CHIDI NWAOMA UWA, J.C.A.

CHIDI NWAOMA UWA, J.C.A.: I had the privilege of reading before now the judgment delivered by my learned brother, O. Daniel-Kalio, J.C.A.
His Lordship has dealt with the issues comprehensively and resolved same accordingly.
On the Appellants, third issue as to whether the findings of the lower court were not against the weight of evidence in the circumstances of the evidence and material placed before the court, this touches on the evaluation of the evidence adduced by both parties and the findings made by the trial court in favour of the Respondents, whereas the Appellants feel it should have been in their favour. In this respect, I would say that the ascription of probative value to evidence is the function of the trial court that had the advantage of seeing, hearing and assessing the witnesses which opportunity this court in its appellate capacity does not have. This court cannot substitute its views or assessment of the evidence for that of the trial court. It would lead to a miscarriage of Justice. From the printed records, there is nothing to show that the findings of the trial court are contrary to what a reasonable court would have fund in the same set of circumstances and evidence before the court. See WOLUCHEM V. GUDI (1987) SC. 219 NWOKORO and OYEBAMIJI V. FABIYI (2003) 12 NWLR 271 at 295-296. In my considered view, the trial court properly evaluated the evidence placed before it.
For this reason and more detailed reasoning in the leading judgment, I also allow the appeal in part and abide by the consequential orders therein.

ADAMU JAURO, J.C.A: I had the privilege of reading in advance the judgment just delivered by my learned brother, O. Daniel-Kalio, JCA. My noble lord has meticulously treated all the issues raised in this appeal and I am in agreement with his reasoning and conclusion and adopt same as mine.
I abide by the consequential orders made, including that of costs.
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Appearances

Dr. O. F. Ayeni with IbegbunamFor Appellant

AND

Respondents Counsel AbsentFor Respondent

JUSTICE

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

ADAMU JAURO Justice of The Court of Appeal of Nigeria

OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria

Between

1. LABIM LIMITED
2. OTUNBA OLA AKINMOLAYANAppellant(s)

AND

1. THE CHAIRMAN, ONA ARA LOCAL GOVERNMENT
2. ONA ARA LOCAL GOVERNMENTRespondent(s)

OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): This appeal is on a case of breach of contract. The case was heard and determined by the High Court of Oyo State. The Appellants who were the plaintiffs were the successful party in the High Court. They were however dissatisfied with the judgment and therefore appealed to this court.
According to the appellants, sometime in April 1998 the appellants (Labim Ltd and its alter ego Otunba Ola Akinmolayan, 1st and 2nd appellants respectively), were invited by the respondents (The Chairman Ona Ara Local Government and Ona Ara Local Government) to submit a quotation for the construction of the Town Planning Office of the 2nd respondent. In response to the invitation, the appellants submitted a quotation for the construction of the office at a total cost of N2,829,335. On the 18th of June 1998, the appellants received a letter from the respondents that they had won the contract to build the office. Consequently, the appellants moved to site and by the 6th of July 1998 completed stage 1 of the construction (The construction work was broken into stages). The appellants duly informed the respondents of the completion of stage 1 of the construction and requested for the sum of N844,500.00 (30% of the contract value) being the amount due for that stage, of work. The respondents did not respond to the request for payment and consequently the appellants were constrained to make a formal request for payment in December 1998. There was no response to that response either. Instead, in April 1999 the 1st respondent confirmed that the appellants were due payment for the sum of N441,000 for the first stage of the construction work. In that same month of April, the parties executed a formal agreement for the construction work. When payment was still not forthcoming, even after the formal execution of the contract agreement, the appellants made it clear to the respondents that their refusal to pay for the first stage of work done, was stalling the progress of the construction work.
In January 2000, there was a twist in the saga as the respondents wrote to the appellants to say that the work done at stage 1 of the contract was defective. The appellants contested the respondents’ claims, insisting that the construction work was carried out in accordance with specifications. The appellants claimed that they borrowed the sum of N350,000.00 at an interest rate of 20% per month towards the execution of the construction work and that but for the default of the respondents to pay for the work done at stage 1 of the contract, they would have completed construction work by October 1, 1999 and earned 32% of the contract value as profit.
The facts stated above, are in summary, the appellants case as presented in the trial court and as contained in the Further Amended Statement of Claim before that court, (See at page 82-88 of the Record of Appeal).
The respondents contested most of the facts stated by the appellants and in their own Statement of Defence at page 89-95 of the Record of Appeal, stated that at the time of the contract there was no clearance for the execution of same from the Military Administrator of Oyo State as required at the time; that no authority was given to the appellants to move to the construction site; that no inspection of the construction work carried out by the appellants was done; that a joint inspection by the parties revealed that the construction work was carried out on an existing foundation made by a previous contractor without the appellants compacting that foundation properly thereby leading to structural defects; and that due to the structural defects the work carried out by the appellant would have to be demolished to make way for a fresh construction. The appellants filed a reply to the above claims of the respondents.
After hearing from both parties, the learned trial Judge delivered his judgment on 26/4/2006. He concluded his judgment in the following words:
“It is therefore my finding that in view of the above i.e. defects and faults discovered and which makes it impossible for the building to continue, this contract has not been determined by breach by the defendants, but due to the fact that it has been frustrated by the events and defects arising thereform.
The claims of the Plaintiffs under that heading therefore fails and judgment is hereby entered in the plaintiffs favour in the sum of N441,000.00 as agreed to be paid by the defendants and 10% per annum thereon from 1st April, 1999 till date; and thereafter, 10% per annum on the whole amount until judgment debt is liquidated.”
As earlier noted, the appellants were dissatisfied with the judgment. They filed a Notice of Appeal dated 9th June, 2006 wherein they sought the following relief from this court:
“An order setting aside the judgment of the High Court of Oyo State (coram the Hon. Justice I. S. Yerima) refusing any and/or allowing in part the claims, of the plaintiffs as set out in paragraph 29 of their Further Amended Statement of Claim dated 19th May, 2003 and in substitution thereof, allowing the appeal as well as all the claims of the plaintiffs as per paragraph 29 of their Further Amended Statement of Claim in totality.”
There were numerous grounds of appeal containing copious particulars. In order to reduce prolixity I consider it necessary to reproduce only the grounds of appeal. They read;
GROUNDS OF APPEAL
(1) The learned trial Judge erred in law by failing to grant both declaratory reliefs sought in paragraph 29(A) and (B) of the Further Amended Statement of Claim of the appellants (as plaintiffs) when there was no reason to refuse the reliefs.
(2) The learned trial Judge erred in law by failing to award damages in the sum of N759,680.00 sought in paragraph 29(c) of the Further Amended Statement of Claim of the appellants (as plaintiffs) when the appellants had proven their entitlement to same.
3. The learned trial Judge erred in law by failing to award interest payable on a loan of N350,000.00 secured by the appellants to execute the contract at the rate of 20% annually from 3rd December, 1998 until the judgment debt is fully paid to the appellants when the claim was a proved consequence of the respondents breach and repudiation of the terms of the contract.
4. The learned trial Judge erred in law by failing to award interest on the sum of N441,000.00 due to the appellants at the rate of 32% per annum.
5. The learned trial Judge erred in law by failing to award interest on the sum of N759,680.00 being anticipated lost profits under the contract to the appellants at the rate of 32% per annum.
6. The learned trial Judge erred in law by failing to award post judgment interest on all hands of pecuniary claims of the appellants at the rate of 10% per annum when the appellants had established their rights and entitlements to the claims.
7. The learned trial Judge erred in law by holding that the appellants and respondents were not ad idem in their transactions and relations, subject matter of the proceedings in the lower court, when the appellants established all elements to constitute a valid contract between the parties in the lower court.
8. The learned trial Judge erred in law by holding that the respondents were not in breach or repudiation of the terms of their contract with the appellants and the appellants were not entitled to payment of damages claimed.
9. The learned trial Judge erred in law by holding that the contract between the appellants and respondents had become incapable of performance by reason of frustration when it was also found by the court that the parties were not ad idem at all and there was no valid contract between the appellants and the respondents.
10. The learned trial Judge erred in law by making findings of fact that are perverse and against the weight of evidence available at the trial.
11. The learned trial Judge erred in law by refusing to award costs in favour of the appellants against the respondents when the appellants entitlement to same was established by evidence.
Appellants Counsel, Dr. Olumide Ayeni distilled three issues for determination as follows:-
(1) “Whether the lower court acted correctly when it refused to grant the claims of the appellants as per paragraph 29 of the appellants Further Amended Statement of Claim as well as refusing to award costs to the appellants in the circumstances before it”.
He related this issue to grounds 1 – 6 and 11 of the grounds in the Notice of Appeal.
(2) “Whether the lower court was right when it held that the respondents were not in breach of the terms of the contract but that the contract was incapable of performance by reason of frustration in the circumstances before it”.
He related this issue to grounds 7 – 9 of the grounds in the Notice of Appeal.
(3) “Whether the findings of the lower court were not against the weight of evidence in the circumstances of the evidence and material Placed before it”.
He related this issue to ground 10 of the grounds in the Notice of Appeal.
On issue 1, learned counsel submitted that the appellants established before the lower court that owing to the failure of the respondents to pay them the sum of N441,000.00 upon completion of stage one of the contract, the appellants were unable to continue with further execution of the contract, He referred specifically to the evidence of PW1 before the lower court. He contended that DW1 before the lower court admitted that clause 10 of Exhibit 6 and 6A was to the effect that if there was any defect discovered on the building a complaint about same was to be made to the appellants within 6 months of the discovery and that the respondents complained after 10 months.
Learned counsel submitted that the parties were on common ground that there was a valid contract between them and the appellants. He contended that the appellants in proof of their claims in paragraph 29A and B of their Further Amended Statement of Claim established that it was the respondents’ failure to pay the money due on completion of stage 1 of the contract that prevented the appellants from the further execution of the contract. He submitted that the lower court ought to have found in favour of the appellants in respect of the claims in the said paragraph 29A and 29B of the Further Amended Statement of Claim.
Appellants Counsel argued that the finding of the lower court that clause 10 of Exhibit 6 and 6A did not avail the appellants amounted to rewriting the contract between the parties and importing into the said contract what the parties did not make a term or condition of the contract. He submitted that it is not the business of the court to make a contract for the parties. He cited Larmie vs. Data Processing and Services Ltd. (2005) 18 NWLR Part 958 Page 438 at 474; Nneji vs. Zakhem Construction (Nig.) Ltd. (2006) 12 NWLR Part 994 Page 297; Page 319-320; Baker Marine (Nig.) Ltd. vs. Chevron (Ng.) Ltd. (2006) 13 NWLR Part 997 Part 276 at 287-288.
Learned Counsel submitted that by not raising any matter of defect in the construction work within 6 months but instead raising it after 10 months contrary to Exhibit 6 and 6A, the respondents led the appellants to believe that the issue had been waived. He referred to the doctrine of Waiver as explained in the case of Caribbean Trading and Fidelity Corporation vs. Nigerian National Petroleum Corporation (1992) 7 NWLR Part 252 Page 161 at Page 185.
Counsel submitted that the learned trial Judge did not grant appellants claim in paragraphs 29C ii-vi of the Further Amended Statement of Claim because he failed to properly evaluate the evidence led by the parties and thereby came to a wrong conclusion.
Appellants’ Counsel contended that the appellants called evidence to prove that they were entitled to the payment of the sum of N759,680,00 which was the anticipated profit accruable to the appellants had the respondents not repudiated the contract. He contended that the evidence of the appellants on the issue was not challenged, contradicted or rebutted by the respondents. He submitted that the appellants were entitled to the anticipated profit. He referred to Shell Petroleum Development Company of Nigeria Ltd vs. Katad (Nig,) Ltd. (2006) 1 NWLR Part 920 Page 128-129; Acme Builders Ltd vs. Kaduna State Water Board & Anor. (1999) 2 NWLR Part 590 Page 288.
On the specific claim in paragraph 29(c) (iii) of the Further Amended Statement of Claim which had to do with interest payable on a loan of N350,000.00 taken by the appellants, for the execution of the contract, learned counsel referred to Exhibit 4 which he contended was the respondents authorization to the appellants to source for a loan to execute the contract and Exhibit 5, the loan taken pursuant to the authorization. He submitted that the oral evidence by which the respondents attempted to deny Exhibit 4 is an after-thought and cannot stand in the face of Exhibit 4 and the provision of Section 132(1) of the Evidence Act.
Learned Counsel submitted that if a contractor such as the appellants is entitled to his claims under a contract awarded to him, his claim cannot be defeated on the ground that a certificate from an architect or certifier was not produced when such production is not part of the contract. He cited Barau vs. Cubitts Nig Ltd. (1990) 5 NWLR Part 152 Page 360 at 647; Edilit Ltd. Vs. Elias Khawam & Bros Ltd. (1966) NMLR P.289.
Counsel submitted that where the award of interest has been provided for by statute, the court must as a matter of law, award such interest whether a party has claimed it or not. He contended that by Order 40 rule 7 of the High Court (Civil Procedure) Rules of Oyo State, 1988, the lower court was enjoined to award interest at a rate not exceeding 10% per annum on any sum awarded as judgment debt from the date of judgment until the judgment debt is fully satisfied.
On the issue of costs, learned counsel submitted that the lower court failed to exercise its discretion judicially and judiciously when it declined to award costs to the appellants. He argued that it is on record that the appellants appeared in court 33 times inclusive of the de-novo trial before the learned trial Judge that eventually decided the case. He submitted that since costs follow events, the appellants were entitled to costs to indemnify them being the successful party. He referred to Onabanjo vs. Ewetuga (1993) 4 NWLR Part 288 Page 455.
On issue 2 which is whether the, lower court was right when it held that the respondents were not in breach of the terms of the contract but that the contract could not be performed due to frustration, learned counsel submitted that the lower court proceeded on wrong principles thereby coming to a perverse decision. Counsel submitted that in the determination of cases, courts are limited by the issues presented for adjudication by the parties and cannot go outside those issues.
Counsel submitted that the decision of the lower court that the contract was incapable of performance by reason of frustration was perverse for a number of reasons including the fact that neither party before the lower court made out a case of frustration of the contract. He contended that the lower court made a finding that there was no valid contract between the parties and therefore could not at the same time, find that the contract was incapable of performance due to frustration. He submitted that it is essential that a finding of the existence of a contract must necessarily precede a finding of frustration of same. He urged the court to resolve issue 2 in the negative.
On issue 3 which is whether the findings of the lower court were not against the weight of evidence in the light of the evidence and materials placed before it, learned counsel adopted his arguments in respect of issue 2. He submitted in addition, that where the judgment of a lower court is against the weight of evidence led, the court has power to re-evaluate the evidence. He referred to Adegoke vs. Adibi (1992) 5 NWLR Part 242 page 410 at 427. He urged the court to exercise its powers under Section 15 of the Court of Appeal Act Cap 36 of the Laws of the Federation, 2004 and re-evaluate the evidence and draw the proper inferences therefrom. He further urged the court to allow the appeal.
Respondents’ Counsel Tunde Akande Esq. in his Brief of Argument identified three issues for determination in this appeal. The issues are:
1. Whether the lower court was right when it refused the reliefs of the appellants as contained in paragraph 29(a) (b) and (c) (ii).
2. Whether the lower court was right when it refused the relief of the appellants as contained in paragraph 29(c) (ii) (iii) (iv) (vi).
3. Whether the findings of the lower court were not against the weight of evidence in the circumstances of the evidence and materials placed before it.
On the first issue, learned counsel submitted that the appellants failed to prove conclusively their claim for anticipated profit. He referred to the evidence-in-chief of the 2nd appellant at page 101-108, particularly at page 106 lines 9-17 of the Record of Appeal. He also referred to the evidence of PW3 at page 111 to page 112, particularly in lines 6 to 13 at page 112 as well as the evidence of that witness under cross-examination at page 112 lines 18-20. Counsel contended that the evidence of the 2nd appellant with regard to the claim of N2,786,235.00 as anticipated profit was not cogent, credible or direct.
Furthermore he argued, PW3 gave evidence that 32% of the contract sum was not entirely profit. He submitted that in an action for a specific claim, a party must prove its claim strictly. He cited Ganiyu Badmus & Anor. vs. Abegunde (1999) 71 LRCN p.2912 at 2925; Sommar vs. EHA (1993) 1 NWLR part 219 page 548 at 561; Osuji vs. Isiocha (1989) 3 NWLR Part 111 Page 623.
On the argument of appellants’ counsel that the 2nd appellant was not cross-examined with regard to his evidence on anticipated profit, learned counsel submitted that where a party fails to prove his case, the fact that he was not cross-examined would not lead to a conclusion that the case was proved. He contended that the case of Agbonifo vs. Aiwerieba (1988) 1 NWLR Part 70 Page 325 cited by appellants’ counsel is irrelevant in this case.
Learned Counsel contended that the claim for N2,786,235.00 as anticipated profit is speculative and premature, particularly in view of the evidence of PW3 that the sum included money for payment to artisans and workers. He submitted that a court will not grant a relief which is speculative in nature. He referred to IMNL vs. Oge (1996) 3 NWLR Part 437 Page 422 at 431 and urged the court to resolve issue 1 against the appellants.
On issue No.2, counsel referred to the appellants’ claims in paragraph 29(c)(ii)(iii)(iv) and (vi) of the Amended Statement of Claim and submitted that the lower court was satisfied that the claims were too vague and consequently refused to grant them.
Learned Counsel submitted that a claim for interest being an ancillary relief, must be tied to a legal right and that the appellants failed to lead credible evidence to establish a legal right upon which the ancillary relief can be based.
On issue No.3, learned counsel adopted his arguments on issues 1 and 2. He submitted that since the appellants were only in stage 1 of the contract, the lower court was right to have awarded the sum of N441,000.00 as quantum merut. With regard to clause 10 of Exhibit 6 and 6A which appellants’ counsel argued was breached, learned counsel submitted that if there was a waiver, it was the appellants who waived the delay in clause 10 of Exhibit 6 and 64 since the defects were pointed out to the 2nd appellant at the joint inspection after Exhibit 8 was written to him and well before the 16 months when he chose to reply Exhibit 8. He submitted that the lower court was right to have looked at Exhibit 6 and 6A holistically with other exhibits before arriving at its decision. He urged the court to dismiss the appeal.
The appellants filed a Reply Brief of Argument on 26/5/10. Going through it, I find that it is not a reply brief properly so called. It is mostly made up of recycled arguments, that is to say, arguments already canvassed in the appellants’ brief of argument. The purpose of a reply brief is as stated in Order 18 rule 5 of the Court of Appeal Rules, 2011. It is to deal with all new points arising from the respondents brief.
A reply brief should not reiterate, rehash, recycle or seek to elaborate on the arguments already made in the appellants brief. As stated by the Supreme Court per Ejiwunmi JSC in Edjerode vs. Ikine (2001) 12 SC Part 11 Page 94.
“A reply brief should be strictly limited to finding answers to questions raised in the respondents brief and which the appellants had not addressed or dealt with in the appellants brief.”

In Ojiogu vs. Ojiogu (2010) 9 NWLR Part 1198 Page 1 at P.15 the Supreme Court stated thus on a reply brief:
“A reply brief is necessary when issues of law or new questions are raised in the respondents’ brief of argument, otherwise it is not required”
There are one or two arguments in the reply brief that come within the purview of a reply brief. I will consider them here.
On the issue of loss of anticipated profit, learned counsel for the appellants urge the court to discountenance the arguments advanced by the respondents’ counsel. He argued that the anticipated profit of N759,680,00 was established by the appellants and is a natural consequence flowing from the repudiation of the building contract by the respondents. He cited the case of Shell Petroleum Development Company of Nigeria Ltd. Vs. Katad Nig Ltd (2006) 1 NWLR Part 960 Page 190 at Page 219.
On the issue of 32% interest on anticipated profit and 10% interest on the judgment debt, learned counsel submitted that the appellants proved their entitlement to interest at the rate of 32% per annum through PW2. He submitted that post judgment interest on debt is statutory and that the appellants are entitled to same.
Looking at the issues for determination as formulated by the parties in this appeal, they mirror each other. That is how it should be. The Supreme Court in Ossai vs. Wakwah (2006) 4 NWLR Part 969 p.208 at p.224 stated that a respondent can only formulate his own issues with a slant favourable to his own case. It is out of order for a respondent to gravitate far away from the issues formulated from the appellant’s grounds of appeal unless he has also filed a cross-appeal or respondent’s notice.
I will consider the issues raised in this appeal according to the issues formulated by appellants, seriatim.
Issue 1 as will be recalled is whether the lower court acted correctly when it refused to grant the claims of the appellants as per paragraph 29 of the appellants Further Amended Statement of Claim as well as refusing to award costs to the appellants in the circumstances before it. What did the appellants claim in paragraph 29 of their Further Amended Statement of Claim? I will reproduce their claims therein. They are as follows:
(A) DECLARATION that the defendants actions in respect of the contract and in particular, its refusal to pay the sum due under Stage 1 of the contract in the amount of N441,000 (Four Hundred and Forty One Thousand only) is wrongful, improper and constitutes a breach of contract.
(B) DECLARATION that the defendants by their actions in this matter have wrongfully and improperly repudiated their obligations under the contract in that refusal to pay the sum due under stage 1 of the contract in the amount of N441,000 prevented the plaintiffs from executing the rest of the contract and earning its anticipated profits in full on the sum of N2,374,000.
(C) ORDER directing the defendants to pay to the plaintiffs forthwith consequential damages for breach of contract as follows:
(i) Sum due under stage 1 of the contract of 1st April, 1999 since 1st April, 1999 at least….N441,000.00 (ii) Loss of anticipated profit on the sum of N2,374,000 at 32% fraction rate due since 1st October, 1999 ….N759,680.00
(iii) Interest payable on loan of the sum of N350,000 secured by the plaintiffs to execute the contract pursuant to paragraphs 26 and 27 above at the rate of 20% annually from 3rd December 1998 until the date of judgment in this suit and thereafter until same is fully paid to the plaintiffs… . 3,570,000.00 (as at 3/3/2003).
(iv) Interest on the outstanding payment under stage 1 of the contract of 1st April, 1999 until the date of Judgment at the rate of 32% per annum.
(v) Interest on loss of anticipated profit of N759,680.00 at the rate of 32% per annum from 1st October, 1999 until date of judgment.
(vi) Interest on all judgment debts in respect of paragraph 29(c)(i) – (v) above at the rate of 10% per annum from the date of judgment until the date the same is fully paid or satisfied”.
In my humble view, issue 1 is unwieldy and rather economical with the truth in regard to the judgment of the lower court. The issue gives the impression that the lower court failed to grant all the prayers in paragraph 29 of the Further Amended Statement of Claim. That is not the case. The trial court in fact granted the claim of N441,000,00 sought in paragraph 29 of the Further Amended Statement of Claim.
There is every need for counsel to accurately formulate issues. Indeed the a, b, c, of brief writing that is, accuracy, brevity and clarity should be scrupulously adhered to. Issues for determination should be couched in a manner that they accord with the facts as contended by the party formulating them. See Pele Ogunye & Ors vs. The State (1999) 4 SCNJ 33.
My general impression when going through the appellant’s brief of argument is that appellants counsel appeared to be arguing the case as though it were at the trial stage and not on appeal. The fact that counsel was unmindful of the fact that a claim that he apparently made an issue of on appeal was in fact granted by the lower court, underscores my impression.
I will put aside my general impression and focus on what I think are the real grouse of the appellants under issue 1. The first grouse I think has to do with anticipated profit which the appellants felt entitled to. With respect to that grouse, appellants counsel argued that owing to the fact that the appellants were not paid for the work done at stage one of the contract, they were unable to make further progress on the construction work and thereby were ultimately denied the profit they would have made, that is, the anticipated profit. He submitted that the appellants proved their entitlement to the anticipated profit and that the claim of defects in the construction work carried out was not brought to the attention of the appellant within the period prescribed by Exhibit 6 and 6A. As will be recalled, respondents counsel contested the views of the appellants counsel. He submitted that PW3 gave evidence that 32% of the contract sum was not entirely profit.
In considering the issue of anticipated profit the lower court in its judgment at page 177 of the Record of Appeal held that the appellants (plaintiffs in the lower court) did not lead evidence to show how much of the contract sum covered payment to artisans and workers. The lower court also considered the defects complained about by the respondents and wondered how the appellants expected the work done not to collapse in view of the defects. Considering this line of thought. I think that what the lower court was getting at is that the appellants cannot be entitled to anticipated profit when the building constructed by them was in danger of collapse due to defects.
In the case of Zenith Plastics Industry Ltd. vs. Samotech Ltd. (2007) 16 NWLR Part 1060 Page 315 at P344 this court per Rhodes Vivour JCA (as he then was) held that claims for loss of profit or anticipated profit represent a loss that has crystallized into special damages which must be strictly proved.

In A.G. Oyo State vs. Fairlake Hotels (No.2) (1989) NWLR Part 121 Page 255 at p284 also reported in (1988) 12 SC Part 1, the Supreme Court Per Agbaje JSC said thus:
“This court recently in Uwa Printers Ltd. vs. Investment Trust Ltd. (1988) 5 NWLR Part 92 Page 110, and earlier on in J. K. Odumosu vs. ACE (1976) 11 SC 55 has held that anticipated profit must be established by evidence. The onus is evidently on the plaintiff to prove its anticipated profit. A priori, the onus is on the plaintiff to establish the accuracy of the projected gross profit … So if for any reason evidence which would help the trial court to assess the accuracy of the projected profit is inadequate, lacking or not convincing, it is the plaintiff who will fail in its claim for anticipated profits”.
The appellants as plaintiffs before the lower court were not able to establish the accuracy of the projected or anticipated profit. As noted in the judgment of the lower court, PW1 the 2nd plaintiff, gave the expected profit as between 30 – 33% of the contract sum. See at page 148 of the record. This is a range, not a precise percentage. PW3 a Quantity Surveyor as stated in the judgment at page 149 – 150 of the Record said that the claim of 32% as profit represents not only profit but also “overhead” which included payment due artisans and workers. On the authorities, the appellants did not establish the accuracy of the anticipated profit and indeed did not strictly plead them. Profit is the excess of returns over expenditure. The appellants conception of profit from the evidence adduced by them included expenditure i.e. payments due artisans and workers. They clearly were not able to establish accurately what the anticipated profit is. Issue one with regard to anticipated profit is resolved against the appellants.
The second grouse under issue 1 is with regard to interest payable on the borrowed sum of N350,000. The case of the appellants is that the amount of N350,000 was borrowed by the appellants at the behest of the respondents. The burden is on the appellants to prove this. Affirmanti non negantil incumbit probatio (the burden of proof is upon him who affirms, not upon him who denies). The appellants in paragraph 26 of their Further Amended Statement of Claim pleaded that they would rely on their letters dated 3/12/98 and 6/5/2011 in proof.
The letter of 3/12/98 is Exhibit 4. That letter did not state that money was borrowed by the appellants at the behest of the respondents. It merely stated in the paragraph headed “my appeal” that the 2nd appellant had his properties seized because of loans taken. Two letters bear the date 6/5/2011. They were letters written by the law firm of Afe Babalola & Co. and did not state that the sum of N350,000 was borrowed by the appellants at the instance of the respondents. Exhibits 5 which is the loan Agreement for the sum of N350,000 did not say that the borrowed money was to execute the building contract, let alone that it was borrowed at the instance of the respondents. The lender of the money Chief Mrs Agnes Oladunni Oke (PW4) did not say that she was informed by the 2nd appellant that the respondents told him to borrow money from her. Even if she had said so, it would have been hearsay and therefore inadmissible as evidence. It is patent from Exhibit 5, the Agreement to borrow the sum of N350,000.00, that it is only the parties to it that are bound by it consensus facit legem. It is therefore for the 2nd appellant to pay up the loan and the interest thereon. The respondents are strangers to the agreement. Exhibit 5. Issue 1 with respect to interest payable on the loan of N350,000.00 is also resolved against the appellants.
Another grouse under issue 1 is that the trial court refused to award costs to the appellants. The law is settled on the award of costs. Award of costs is at the discretion of the court but the discretion must be exercised judicially and judiciously. Costs also follow events. It is also settled that a successful party is entitled to costs unless there are special reasons for depriving him of his entitlement. See Akinbobola vs. Plisson Fisko (1991) 1 NWLR Part 167 page 270 at p.289; Layinka vs. Makinde (2002) 10 NWLR Part 775 Page 358.

A successful party is entitled to costs as of right, Cooper vs. Whittingham (1880) 15 ChD 501 at 504; Inneh vs. Obaraye (1957) 2 FSC 59 at 59; Haw Ltd vs. Brown (1973) 4 SC (Reprint) 103.

As stated by the Supreme Court per Karibi-Whyte JSC in UBA vs. GMBN (1989) NWLR Part 110 P.374:
“There is the distinction between costs awarded according to settled judicial principles and costs awarded in the exercise of discretion on particular facts, whereas appeal lies in respect of the former, which is the exercise of judicial discretion, there is no appeal in respect of the latter even from the erroneous exercise of discretion. This is because this last mentioned exercise of discretion is based on the private opinion of the Judge”.
The award of costs in this case I hold is according to settled judicial principles. I think therefore that the appellants should be entitled to costs.
Issue No.2 is whether the lower court was right when it held that the respondents were not in breach of the terms of the contract but that the contract was incapable of performance by reason of frustration in the circumstances before it.
The lower court in the penultimate paragraph of its judgment (page 181 of the Record of Appeal) stated thus:
“It is therefore my finding that in view of the above i.e. defects and faults discovered and which makes it impossible for the building to continue, this contract has not been determined by breach by the defendants, but due to the fact that it has been frustrated by the events and defects arising therefrom”.
Appellants counsel submitted that the decision of the court quoted above is perverse because neither party before the lower court made out a case of frustration of the contract. I agree with the submission of appellants counsel. The issue of frustration of contract is one raised suo motu by the trial Judge. It was not even pleaded by the parties. Where a court decides to raise an issue arising, from a case but not raised by the parties, the court must call on the parties to address it. See Adegoke vs. Adibi (1992) 5 NWLR part 242 page 410. As it is, the “finding” of the court quoted above is a mere obiter dictum. In Bamgboye vs. University of Ilorin (1999) 10 NWLR Part 622 Page 290 at P. 327 also reported in (1999) 6 SC Part 11 Page 72 the Supreme Court held that when a trial court expresses an opinion on an issue not pleaded, such opinion is obiter dictum which if it does not occasion any miscarriage of Justice, the judgment stands. See also Mora vs. Nwalusi & Ors (1962) 2 SCNLR 73; Ayoola vs. Adebayo & Ors (1969) 1 ALL NLR 159 at 154. The issue of frustration of the contract certainly did not occasion any miscarriage of Justice. It did not affect the decision reached.
I now turn to the final issue which is whether the findings of the lower court were not against the weight of evidence in the circumstances of the evidence and materials placed before it. In arguing this rather circumlocutory issue, appellants counsel adopted his arguments in respect of issue 2 and also urged this court to re-evaluate the evidence before the lower court and draw proper inference therefrom.
Issue 3 is an omnibus issue, rather like an omnibus ground of appeal. Like an omnibus ground of appeal, it implies that the findings of the trial court cannot be supported by the evidence of the respondents which evidence the trial court unjustifiably accepted. It also implies that the evidence adduced by the appellants when weighed against that of the respondents cannot be in favour of the respondents since the evidence preponderates in favour of the appellants. See generally Anyaroke vs. Adi (1986) NWLR Part 35 page 731.
I truly cannot appreciate this issue especially considering that the lower court came to a favourable finding that the appellants are entitled to an award of the sum of N441,000.00. Looking at the totality of the case presented by the parties. I am unable to resolve issue 3 in favour of the appellants.
In the final analysis, this appeal succeeds in part. The appellants are entitled to costs having been awarded the sum of N441,000.00 and interest thereon. I will award them N20,000.00 costs for their success in the court below.

CHIDI NWAOMA UWA, J.C.A.: I had the privilege of reading before now the judgment delivered by my learned brother, O. Daniel-Kalio, J.C.A.
His Lordship has dealt with the issues comprehensively and resolved same accordingly.
On the Appellants, third issue as to whether the findings of the lower court were not against the weight of evidence in the circumstances of the evidence and material placed before the court, this touches on the evaluation of the evidence adduced by both parties and the findings made by the trial court in favour of the Respondents, whereas the Appellants feel it should have been in their favour. In this respect, I would say that the ascription of probative value to evidence is the function of the trial court that had the advantage of seeing, hearing and assessing the witnesses which opportunity this court in its appellate capacity does not have. This court cannot substitute its views or assessment of the evidence for that of the trial court. It would lead to a miscarriage of Justice. From the printed records, there is nothing to show that the findings of the trial court are contrary to what a reasonable court would have fund in the same set of circumstances and evidence before the court. See WOLUCHEM V. GUDI (1987) SC. 219 NWOKORO and OYEBAMIJI V. FABIYI (2003) 12 NWLR 271 at 295-296. In my considered view, the trial court properly evaluated the evidence placed before it.
For this reason and more detailed reasoning in the leading judgment, I also allow the appeal in part and abide by the consequential orders therein.

Appearances

Dr. O. F. Ayeni with IbegbunamFor Appellant

AND

Respondents Counsel AbsentFor Respondent