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ABEL PRIME PETROLEUM LTD v. KEYSTONE BANK LTD & ANOR (2022)

ABEL PRIME PETROLEUM LTD v. KEYSTONE BANK LTD & ANOR

(2022)LCN/15951(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Friday, March 11, 2022

CA/B/523/2018

Before Our Lordships:

Uchechukwu Onyemenam Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

ABEL PRIME PETROLEUM LIMITEDA PPELANT(S)

And

1. KEYSTONE BANK LIMITED 2. THE BRANCH MANAGER, KEYSTONE BANK LIMITED AIRPORT ROAD, BENIN CITY RESPONDENT(S)

 

RATIO

THE BURDEN OF PROOF IN CIVIL CASES

The burden of proof in civil cases has two distinct facets, the first is the burden of proof as a matter of law and the pleadings normally termed as the legal burden or the burden of establishing a case, the second is the burden of proof in the sense of adducing evidence usually described as the evidential burden. While the legal burden of proof is always static and never shifting, the other type being evidential burden of proof shifts or oscillates constantly as the scale of evidence preponderates. The primary onus of proof in a civil case such as the present one lies on the Appellant who was the Claimant at the trial Court See APOSTLE PETER EKWEOZOR & ORS V. THE REGISTERED TRUSTEES OF THE SAVIOURS APOSTOLIC CHURCH OF NIGERIA (2020) LPELR-49568(SC), ENGR. GEORGE T.A. NDUUL V. BARR, BENJAMIN WAYO & ORS (2018) LPELR-45151(SC); WOLUCHEM V. GUDI (1981) 5 SC 291, A.G. BAYELSA STATE V. A.G. RIVERS STATE (2006) 18 NWLR (PT. 1012) 596, AGBAKOBA V. I.N.E.C. & ORS (2008) 18 NWLR (PT. 1119) 489, OSUADE ADEYINKA AKINBADE & ANOR V. AYOADE BABATUNDE & ORS (2017) LPELR-43463(SC) AND ALL PROGRESSIVE CONGRESS & ANOR V. G0DWIN NOGHEGHASE OBASEKI & ORS (2021) LPELR-55004(SC). PER ONYEMENAM, J.C.A.

THE ONUS OF PROOF IN AN ACTION FOR DECLARATION OF TITLE TO LAND

The law is that a Plaintiff has the onus of proof to show that in a declaratory action he is entitled as per his claim. To this end, he has to succeed on the strength of his own case, and not on the weakness of the Defendant’s case, and where he defaults in discharging this onus, his case will be dismissed. The burden of proof in establishing a declaratory relief is heavy. See A.G., Rivers State V. A.G., Bayelsa State (2012) LPELR-9336 (SC). See also Dumez (Nig,) Ltd V. Nwakhoba (2008) 18 NWLR (Pt 1119) 361, wherein the Supreme Court per Mohammed, JSC (as he then was) observed – The law on the requirements of the Plaintiff to plead and prove his claims for declaratory reliefs on the evidence called by him without relying on the evidence called by the Defendant is indeed well settled. The burden of proof on the Plaintiff in establishing declaratory reliefs to the satisfaction of the Court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the Defendant where the Plaintiff fails to establish his entitlement to the declaration by his own evidence. The Court must be satisfied, when all the facts are considered, that the Claimant is fully entitled to the exercise of the Court’s discretion in his favour. See BELLO V. EWEKA (1981) 1 SC 101, EMENIKE V. P.D.P. (2012) LPELR-7802 (SC) at 27 D- G, Kwajaffa & Ors. V. B.O.N. Ltd. (2004) 13 NWLR (Pt. 889) 149, Maja V. Samouris (2002) 7 NWLR (Pt. 765) 78; (2002) LPELR – 1824 (SC) 19 – 20 F – B, Alao V. Akano & Ors (2005) 11 NWLR (Pt. 935) 160 AND MRS M. ADAMA & ORS V. KOGI STATE HOUSE OF ASSEMBLY & ORS (2019) LPELR-47424(SC). PER ONYEMENAM, J.C.A.

THE POSITION OF LAW ON A BINDING CONTRACT

It is settled law that a contract is formed once there is an offer by the offeror to the offeree which is accepted by the offeree backed by consideration. At that point in time, the parties to the contract are said to be ad idem or in agreement, and that agreement or contract is binding on both parties and as such, it is enforceable by action. See CHIEF D.S. YARO V. AREWA CONSTRUCTION LIMITED & ORS (2007) LPELR-3516(SC), SPARKLING BREWERIES LIMITED & ORS V. UNION BANK OF NIGERIA LIMITED (2001) LPELR-3109(SC); MR. P. T. ADEDEJI V. DR. MOSES OBAJIMI (2018) LPELR- 44360(SC), BPS CONSTRUCTION & ENGINEERING COMPANY LIMITED V. FEDERAL CAPITAL DEVELOPMENT AUTHORITY (2017) LPELR-42516 (SC) AND BILANTE INTERNATIONAL LIMITED V. NIGERIA DEPOSIT INSURANCE CORPORATION (2011) LPELR-781(SC). PER ONYEMENAM, J.C.A.

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): The judgment of the High Court of Justice Edo State, Benin Judicial Division delivered on 4th December, 2017 by A. N. Erhabor; was appealed against on 21st February, 2018.

The Appellant herein approached the Respondents for the financing of a Local Purchasing Order (LPO) which the Appellant got from Hartland Nigeria Ltd. The Respondents approved N60,000,000.00 (Sixty Million Naira) only, facility for the Appellant to finance the said LPO but did not disburse or credit the approved sum to the Appellant(s cooperate account no: 1005452764 domiciled with the 2nd Respondent. The Appellant contended that instead its account was charged with commission of N1,200,000 upfront; he added that he also paid N500,000.00 as valuation fee to Odudu, Odudu & Partners, as instructed by the Respondents.

The learned trial Judge in dismissing the suit of the Appellant held thus:
​”The entire case as earlier stated is unfashionable and untying and incomprehensible. I am not persuaded that the Claimant has established his case on a preponderance of evidence or balance of probabilities. He must succeed on the strength of his case and not on the weakness of the defence.”

Disgruntled with the decision of the trial Court, the Appellant filed a Notice of Appeal as seen at pages 162 to 165 of the records of appeal. Appeal was heard on 18th January, 2022 when it was found ripe for hearing.

IBRAHIM MOHAMMED Esq., appeared for the Appellant, adopted and relied on the Appellant’s brief of argument filed on 20th May, 2019, but deemed properly filed and served on 1st July, 2021 in urging the Court to allow the appeal. In the Appellant’s brief of argument settled by IBRAHIM MOHAMMED ESQ., the Appellant formulated a sole issue for determination thus:
“Whether the learned trial judge was right in dismissing the Appellant’s claim on the basis that the Appellant did not establish its claim on a preponderance of evidence or balance of probabilities.”

Dr. Dele Alufe Esq., with J. Y Adogbeji Esq., appeared for the Respondents, adopted and relied on the Respondents’ brief of argument filed on 20th July, 2020 in urging the Court to dismiss the appeal. Dr. Dele Alufe in the Respondents’ brief of argument also submitted a sole issue for determination thus:
“Whether the learned trial judge upon the preponderance of evidence appreciated which side the scale of justice weighed having regard to the burden of proof.”

From the respective sole issues formulated by the parties which issues intend the same purport except for phraseology, I shall determine the appeal on the Appellant’s sole issue.

SUBMISSIONS ON THE SOLE ISSUE
Whether the learned trial judge was right in dismissing the Appellant’s claim on the basis that the Appellant did not establish its claim on a preponderance of evidence or balance of probabilities.

The learned counsel for the Appellant submitted that the trial Court was wrong in dismissing the Appellant’s claim on the ground that the Appellant did not establish its claim on a preponderance of evidence or balance of probability for the following reasons. He reproduced the Appellant’s claim at the trial Court and submitted that by paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 of the Appellant’s Statement of Claim the N60,000,000.00 facility granted to the Appellant by the Respondents was never disbursed or credited to the Appellant’s cooperate account with the Respondents. He added that the onus of proof in respect of the said admitted fact is automatically discharged by the Appellant. He cited the cases of: ONOBRUCHERE V. ESEGINE (1986) 1 NWLR (pt.19) 799 at 806, IDAKULA VS RICHARDS (2001) 1 NWLR (PT.693) P. 111 at 124 AND EGBUNIKE VS A.C.B. (1995) 2 SCNJ 58 at 72.

The learned counsel for the Appellant submitted that since the Respondents never amended their pleadings after the said admission, there was no onus of proof placed on the Appellant in respect of the admitted paragraphs of its statement of claim. He urged the Court to allow the appeal.

Dr. Alufe in the Respondents’ brief of argument submitted that the learned trial Judge considered the evidence given by parties, carefully determined the credibility of the respective witnesses and ascribed probative value to the evaluated evidence. He relied on the decisions of the Courts in: ANEKWE VS NWEKE (2014) 9 NWLR (PT 1412) 393 at 418, Para. A, OKEOWO VS ATTORNEY GENERAL OF OGUN STATE (2010) 16 NWLR (PT 1218) 327 at 336 – 33, 7, Para’s. G-A; HAMZA VS KURE (2010) 10 NWLR (PT 1203) 630 at 654, Para’s, E-G; NWOKIDU VS OKANU (2010) 3 WLR (PT. 1181) 362 at 395, Para’s B-D.

The learned counsel in reply to the contention of the Appellant that the Respondent admitted Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 & 11 of the Statement of Claim and therefore is entitled to judgment submitted that a claim for damages is deemed traversed or to be in issue unless specifically admitted. He cited the case of: HON. OSUJI & ANOR VS ISIOCHA (1989) NWLR (PT III) 623, (1989) 6 SCJN 227. He added that in an action for declaration like in this case, it is not sufficient that the Respondents admitted in their Statement of Defence, the learned counsel submitted that the Appellant must still call or adduce evidence in support of his case. He cited the case of: W.P.C LTD & ANOR VS DR. KAYODE FAYEMI (2016) All FWLR (Pt. 821) 1458 – 1459, Para’s. F-A.

He urged the Court to resolve this issue in favour of the Respondents.

RESOLUTION OF THE SOLE ISSUE
The burden of proof in civil cases has two distinct facets, the first is the burden of proof as a matter of law and the pleadings normally termed as the legal burden or the burden of establishing a case, the second is the burden of proof in the sense of adducing evidence usually described as the evidential burden. While the legal burden of proof is always static and never shifting, the other type being evidential burden of proof shifts or oscillates constantly as the scale of evidence preponderates. The primary onus of proof in a civil case such as the present one lies on the Appellant who was the Claimant at the trial Court See APOSTLE PETER EKWEOZOR & ORS V. THE REGISTERED TRUSTEES OF THE SAVIOURS APOSTOLIC CHURCH OF NIGERIA (2020) LPELR-49568(SC), ENGR. GEORGE T.A. NDUUL V. BARR, BENJAMIN WAYO & ORS (2018) LPELR-45151(SC); WOLUCHEM V. GUDI (1981) 5 SC 291, A.G. BAYELSA STATE V. A.G. RIVERS STATE (2006) 18 NWLR (PT. 1012) 596, AGBAKOBA V. I.N.E.C. & ORS (2008) 18 NWLR (PT. 1119) 489, OSUADE ADEYINKA AKINBADE & ANOR V. AYOADE BABATUNDE & ORS (2017) LPELR-43463(SC) AND ALL PROGRESSIVE CONGRESS & ANOR V. G0DWIN NOGHEGHASE OBASEKI & ORS (2021) LPELR-55004(SC).

The main grouse of the Appellant is that the N60,000,000.00 (Sixty Million Naira) only, which it applied for the execution of a Local Purchase Order (LPO) in respect of contract with Hartland Nigeria Ltd, granted by the 1st Respondent was not credited to it but instead its account was charged a commission of N1,200,000.00 in respect of the said contract

From the pleadings of the parties at the trial Court, the Appellant prayed for a declaratory relief thus:
“A DECLARATION that the Defendants refusal to credit and or disburse the N60,000,000.00 approved facility to the claimant’s account no: 1005452764 even though the Defendants charged and collected a full commission of N1,200,000.00 from the Claimant in respect of the said facility amounts to a fundamental breach of the contract by the Defendants.”

The law is that a Plaintiff has the onus of proof to show that in a declaratory action he is entitled as per his claim. To this end, he has to succeed on the strength of his own case, and not on the weakness of the Defendant’s case, and where he defaults in discharging this onus, his case will be dismissed. The burden of proof in establishing a declaratory relief is heavy. See A.G., Rivers State V. A.G., Bayelsa State (2012) LPELR-9336 (SC). See also Dumez (Nig,) Ltd V. Nwakhoba (2008) 18 NWLR (Pt 1119) 361, wherein the Supreme Court per Mohammed, JSC (as he then was) observed – The law on the requirements of the Plaintiff to plead and prove his claims for declaratory reliefs on the evidence called by him without relying on the evidence called by the Defendant is indeed well settled. The burden of proof on the Plaintiff in establishing declaratory reliefs to the satisfaction of the Court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the Defendant where the Plaintiff fails to establish his entitlement to the declaration by his own evidence. The Court must be satisfied, when all the facts are considered, that the Claimant is fully entitled to the exercise of the Court’s discretion in his favour. See BELLO V. EWEKA (1981) 1 SC 101, EMENIKE V. P.D.P. (2012) LPELR-7802 (SC) at 27 D- G, Kwajaffa & Ors. V. B.O.N. Ltd. (2004) 13 NWLR (Pt. 889) 149, Maja V. Samouris (2002) 7 NWLR (Pt. 765) 78; (2002) LPELR – 1824 (SC) 19 – 20 F – B, Alao V. Akano & Ors (2005) 11 NWLR (Pt. 935) 160 AND MRS M. ADAMA & ORS V. KOGI STATE HOUSE OF ASSEMBLY & ORS (2019) LPELR-47424(SC).

In the case at hand, the Appellant alleged that the Respondents failed to credit her N60,000,000.00 facility approved by the Respondents and therefore breached their contract with her. I have systematically examined the records of appeal; at page 18 of the records of appeal is the Appellant’s application for the finance of a Local Purchase Order (LPO) to supply N330,000 of AGO to Hartland (Nig.) Ltd. The total contract amount is N52,800,000.00 (Fifty Two Million, Eight Hundred Thousand Naira) only. Again at page 61 of the records is an offer letter of N60,000,000.00 (Sixty Million Naira) for the LPO finance facility with terms and conditions.

It is settled law that a contract is formed once there is an offer by the offeror to the offeree which is accepted by the offeree backed by consideration. At that point in time, the parties to the contract are said to be ad idem or in agreement, and that agreement or contract is binding on both parties and as such, it is enforceable by action. See CHIEF D.S. YARO V. AREWA CONSTRUCTION LIMITED & ORS (2007) LPELR-3516(SC), SPARKLING BREWERIES LIMITED & ORS V. UNION BANK OF NIGERIA LIMITED (2001) LPELR-3109(SC); MR. P. T. ADEDEJI V. DR. MOSES OBAJIMI (2018) LPELR- 44360(SC), BPS CONSTRUCTION & ENGINEERING COMPANY LIMITED V. FEDERAL CAPITAL DEVELOPMENT AUTHORITY (2017) LPELR-42516 (SC) AND BILANTE INTERNATIONAL LIMITED V. NIGERIA DEPOSIT INSURANCE CORPORATION (2011) LPELR-781(SC).

From the records, it is not in contention that the Appellant applied to the Respondents to finance her LPO contract with Hartland Nigeria Ltd; it is equally not in dispute that the Respondents offered and the Appellant accepted the offer to be financed to the tune of N60,000,000.00 (Sixty Million Naira) only, with terms and conditions attached. Therefore the terms and conditions attached to the offer via the letter issued by the Respondents to the Appellant became a legal binding contract between them. Notably, in interpreting the provisions of a written contract, no addition thereto or, subtraction therefrom is permissible. The words used must be given effect and no word should be ignored in the interpretation of the intention of the parties, otherwise the Court will be seen as rewriting the agreement between the parties. Contracts, as a rule, are made by the parties thereto who are bound by the terms thereof and the Court are always reluctant to read into a contract terms on which there is no agreement. See Bookshop House Ltd V. Stanley Consultant Ltd (1986) NWLR (Part 26) 87 at 97, AFROTEC TECHNICAL SERVICES (NIGERIA) LIMITED V. MIA & SONS LIMITED & ANOR (2000) LPELR-219(SC), Alhaji Baba V. Nigerian Civil Aviation Training Centre & Anor (1991) 5 NWLR (Pt.192) 388 at 413; (1991) 7 SCNJ 1 and Aouad V. Kessrawani (1956) NSCC 33, (1956) 1 F.S.C. 35, SCNLR 83. When construing a document in dispute between parties, the proper course is to discover the intention or contemplation of the parties and not to import into the contract, ideas not potent on the face of the document. See Amadi V. Thomas Aplin Co. Ltd. (1972) 4 SC, ADETOUN OLADEJI NIGERIA LIMITED V. NIGERIAN BREWERIES PLC (2007) LPELR-160(SC) AND ADIELE IHUNWO V. JOHNSON IHUNWO & ORS (2013) LPELR-20084(SC).

In the instant appeal, some of the terms and conditions in the offer letter read thus:
‘Equity contribution of 20% of cost of execution
Tenor: 365 days with 90 days transaction cycle
Disbursement: At the request of the borrower but at the sole discretion of the Bank vide invoice to the borrower’s supplier.
Age of any LPO presented to the bank must not be more than 30 days.
TRANSACTION DYNAMICS
1. Borrower meets all conditions precedent to drawdown including receipt of minimum of 20% equity contribution in cleared funds in their account.
2. The bank (credit support unit) credits borrower’s account with N60,000,000.00 and places lien on the funds.
3. The bank issues drafts in favour of pipeline and products marketing company a subsidiary of NNPC representing ten different truck loads totaling 330,000 liters.
4. Trucks are loaded at Benin Depot and products delivered to Hartland (Nig.) Limited in company of the borrower’s agents.
5. Acknowledgment of delivery by Hartland (Nig.) Limited is received in the presence of the branch and borrower’s representatives.
6. Borrower receives inflow in their account with keystone.

In the instant case, the above terms and conditions is ambiguous only to the extent of the term “20% equity contribution of cost of execution”. The cost of execution was not made known, neither was 20% equity contribution of cost of execution defined nor explained on how same will be applicable to the contract.

In interpreting the contract of the parties therefore, I shall pay a visit to the averments of the parties at the trial Court to ascertain the true intention of the parties in the contract. From the Appellant’s Statement of Claim at the trial Court as seen from pages 5 to 8 of the records of appeal and the Respondents’ Statement of Defence contained at pages 78 to 80 of the records of appeal, N60,000,000.00 was approved by the Respondents to the Appellant to finance an LPO on certain terms and conditions as partly reproduced above.

The Appellant maintained under cross-examination as follows:
“The transaction had tenure and duration of 365 days, with a 90 days transaction circle. What I understand by that the tenure means at a particular time, the transaction will expire. There is a terminal date for transaction. Sixty Million Naira was approved for me. It ought to have been drawn down by me. I don’t understand by drawn down. I applied for a loan for supply of AGO. I am not to be paid based on invoice paid to the bank. The money was for supply of AGO within 365 days. I had a first LPO for the supply of N36,000,000.00 financed by the bank. The N36,000,000.00 was not to be drawn down from the N60,000,000.00. The N36,000,000.00 had its own arrangement. That N36,000,000.00 was not approved from N60,000,000. There was an understanding of equity contribution share of 20% the bank approved out of the N36,000,000 they gave you N26,000,000 (136,915.20). They gave me that amount in my statement of account within 11/9/2013 to 2/4/16 I was given N26,000,000 plus.”

The case of the Appellant is in respect of approved N60,000,000.00 for finance of an LPO and not for a loan of N36,000,000.00. On the other hand, from the Statement of Defence of the Respondents; wherein they averred at paragraph 6 contrary to the averment of the Appellant as follows:
“The Defendant state that in line with the offer letter, disbursement is tied to 80% of the cost of execution of the LPO contract and which sum amounted to N29,136,915 availed the Claimant on cost of execution of N36,421,141 as per invoice of supply presented by the Claimant. The sum was drawn down from the approved N60,000,000 by the Respondent (underlined emphasis is mine).

I have read repeatedly the offer letter relied on by the Respondents above, it was not stated anywhere in the offer letter that disbursement is tied to 80% of the cost of execution of the LPO contract; neither can I see any prove from the records that the execution cost is N36,421,141. The Respondents cannot orally import terms not contained in a contract; the contract is binding on the parties only to the extent of the terms and conditions contained in the contract. The 20% equity contribution cannot be said to be N36,421,141 because 20% of N60,000,000.00 is N12,000,000.00; there is nothing on record on how the Respondents came about the calculation that execution fee of the contract is N36,421,141 and that disbursement is tied to 80% of the cost of execution of the LPO contract. These issues raised by the Respondents are completely outside the terms of the N60,000,000.00 loan agreement entered into by the parties.

Documentary evidence in law is the best evidence. In fact, the document being the best proof of its contents, no oral evidence will be allowed to discredit or contradict its contents except in a case where fraud is pleaded. See SKYE BANK & ANOR V. AKINPELU (2010) LPELR-3073 (SC), AMINU BASHIRU IBRAHIM V. BABANGIDA ALASAN YAKUNDIMA & ORS (2019) LPELR-48984(SC) AND ASHAKACEM PLC V. ASHARATUL MUBASHSHURUN INVESTMENT LIMITED (2019) LPELR-46541(SC).

Section 134 of the Evidence Act states that burden of proof in civil cases shall be discharged on the balance of probabilities. Balance of probabilities or preponderance of evidence means that in civil proceedings judgment is given to the party with the greater weight or stronger evidence. 

Once documentary evidence supports oral evidence, such oral evidence becomes more credible as documentary evidence always serves as a hanger on to assess oral testimony. See INTERDRILL NIGERIA LIMITED & ANOR V. UNITED BANK FOR AFRICA PLC (2017) LPELR-41907(SC).

In the instant appeal, the oral testimony of the Respondents does not hang on the documentary evidence before the Court while the oral evidence of the Appellant is in consonance with the documentary evidence before the Court. The Respondents failed to discharge the burden of prove that the approved N60,000,000.00 was credited to the Appellant’s account or how it came about the N29,136,915 paid to the Appellant.

There is also nothing in the offer letter as to whether the loan would be disbursed in batches or not. Therefore the argument of the Respondents that the sum of N29,136,915 availed to the Claimant is 80% of the cost of execution of N36,421,141 and was from the N60,000,000.00 approved cannot fly, as the same cannot be found in the contract. Rather, there is satisfactory oral and documentary evidence bourne out of the records by the Appellant that the N60,000,000.00 approved by the Respondent for him to execute an LPO contract was not credited to its account but rather it was charged N1,200,000.00 commission in respect of the approved N60,000,000.00 though not disbursed. Accordingly, I hold that the action of the Respondents amount to breach of the contract of disbursement of N60,000,000.00 to the Appellant for the execution of its LPO contract with Hartland Nigeria Ltd.

Consequently having held that the Respondents breached their contract with the Appellant, it follows that the N1,200,000.00 as commission charged by the Respondent in respect of the contract was wrongly charged. I hold that the referred commission is liable to be reversed to the Appellant’s account. In all, I further hold that the Appellant proved its case and the learned trial Judge was wrong in dismissing the suit of the Appellant for failure to prove its case.

On the claim of special damages by the Appellant, special damages must be specially pleaded and strictly proved by a Claimant. To succeed in a claim for special damages the claimant must plead the special damages and give necessary particulars and adduce credible evidence in support. The Claimant must satisfy the Court as to how the sum claimed as special damages was quantified. Special damages are awarded for actual or exact losses suffered. On no account can a trial Judge make his own assessment or speculate on special damages; assessment would only be correct and valid if it is arrived at strictly based on the evidence accepted by him as establishing the amount to be awarded. See Odulaja V. Haddad (1973)11 SC P. 1, Union Bank of Nig PLC V. Chimaeze (2014) 4SC (Pt iii) P. 110, Yalaju Amaye V. AREC (1990) 6 SC P. 157, SPDC Nig. Ltd V. Tiebo & Ors (1996) 4 NWLR (Pt 445) p. 657, LUKE NWANEWU ONYIORAH V. BENEDICT C. ONYIORAH & ANOR (2019) LPELR-49096(SC). 

Unchallenged ipse dixit evidence is not an automatic proof of special damages. See UNION BANK OF NIGERIA PLC V. CLEMENT NWANKWO & ANOR (2019) LPELR-46418(SC).

From the records of appeal before me, the Appellant did not specifically plead any LPO from any other party outside the one presented to the Respondent, the Appellant failed to prove specifically how he would have gained or suffered loss of N1,700,000.00 from the transaction. Consequently, I hold that the Appellant failed to prove special damages.

In all I have said so far, I resolve this issue in substantial favour of the Appellant and against the Respondents. I hold that the appeal is meritorious and the same is hereby allowed. The Judgment of the High Court of Edo State delivered on 4th December, 2017 by A. N. Erhabor is hereby set aside.

It is ordered that:
1. The Respondents who breached their contract with the Appellant pay back the commission of N1,200,000.00 they charged the Appellant.
2. General damages be and is awarded against the Respondents in favour of the Appellant in the sum of N2,000,000.00 for breach of contract.
3. And the sum of N100,000.00 as costs of the suit in favour of the Appellant be paid by the Respondents.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: My learned brother, UCHECHUKWU ONYEMENAM, JCA had afforded me in advance the opportunity of reading the judgment just delivered by him.

I have no hesitation in agreeing with the reasoning and conclusion arrived at by my learned brother.
I too hold that the appeal is meritorious and is accordingly allowed.

I abide by all consequential order(s) in the lead judgment.

JAMES GAMBO ABUNDAGA, J.C.A.: I have read the draft of the judgment delivered by my learned brother, Uchechukwu Onyemenam, JCA.

I adopt his reasoning and conclusion reached therein in holding that the respondents breached the contract between them and the appellant. However, the appellant failed to prove special damages as claimed.

I abide by the consequential orders made including the order as to costs.

Appearances:

IBRAHIM MOHAMMED, ESQ. For Appellant(s)

DR. DELE ALUFE, ESQ., with him, J. Y ADOGBEJI, ESQ. For Respondent(s)