ADVANCED COATING TECHNOLOGY NIGERIA LIMITED v. EXPRESS INTERNATIONAL PLANT HIRE NIGERIA LIMITED
(2019)LCN/12663(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of February, 2019
CA/B/43/2013
RATIO
APPEAL: PRIMARY CONCERN OF THE APPELLATE COURT
“The primary concern of an appellate Court is whether a decision appealed against is right or wrong and not whether the reasons for the decision are right or wrong. See ARISA V STATE (1988) 3 NWLR (Part 83)p. 386, UZOCHUKWU & ORS V ERI & ORS (1997) 7 NWLR (PT. 514) p. 535;
In this appeal, I am satisfied the learned trial judge arrived at the right decision which should not be disturbed. The judgment of Delta State High Court in Suit No. W/33/2004: Advanced Coating Technology (Nig) Ltd V. Express International Plant Hire (Nig.) Ltd. delivered on 22/6/2012 is hereby affirmed.” PER TUNDE OYEBANJI AWOTOYE, J.C.A.
COURT AND PROCEDURE: WHETHER THE COURT SHOULD PRONOUNCE ON ALL ISSUES RAISED
“Indeed it is trite law that a Court should consider and pronounce on all issues submitted to the Court see OSASONA V AJAYI & ORS (2004) 14 NWLR PART 894 p.527 but this is not necessarily fatal unless the issue not pronounced upon is crucial. See BRAWAL SHIPPING (NIG) LTD V. I ONWADIKE CO. LTD & ANOR (2000) FWLR PART 23 p. 1254. Failure to do so is a breach of procedural principle. See OSASONA V. AJAYI (supra). OKOTIE-EBOH V MANAGER & ORS (2004) 18NWLR PT. 905 p242. The breach must however not lead to a miscarriage of justice see OSASONA V AJAYI (supra).” PER TUNDE OYEBANJI AWOTOYE, J.C.A.
CONTRACT: DUTY OF THE PLAINTIFF TO MITIGATE LOSSES
“It is the duty of a plaintiff to mitigate his losses. According to NNAEMEKA-AGU JSC. in OKONGWU V NNPC (1989) 4NWLR PT 115 P. 296. The duty to mitigate does not imply that a plaintiff whose contractual right has been breached is automatically relegated to a position inferior to the defendants wherein he is obliged to pick up, as it were, the crumbs that fall from the masters table. The true position is that a defendant who is already in breach of his contract is, as it were, demanding a positive action from the plaintiff who is innocent of blame for this simple reason, the law has never taken the view that such a plaintiff has to undertake an onerous burden in the name of mitigation of damages. The duty of mitigation is that of reasonable man acting reasonably.” PER TUNDE OYEBANJI AWOTOYE, J.C.A.
JUSTICES:
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
ADVANCED COATING TECHNOLOGY (NIGERIA) LIMITED – Appellant(s)
AND
EXPRESS INTERNATIONAL PLANT HIRE (NIGERIA) LIMITED – Respondent(s)
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment):
This is the judgment in respect of the appeal filed by the appellant who was the defendant at the lower Court in Suit No. W/33/2004. Advanced Coating Technology (Nig) Ltd V. Express International Plant Hire (Nig.) Ltd. against the judgment of Delta State High Court delivered on 22/06/2012.
The claim of the plaintiff at the lower Court was as per paragraph 24 of his 1st Amended Statement of Claim which reads thus:
PARAGRAPH 24
Wherefore the Plaintiff claim against the Defendant the following reliefs:
a) The sum of N167,000,000.00 being hiring rate due from the Defendant to the Plaintiff in respect of Swamp Buggy Excavator from 20th October 2003 to 31st January 2006 a period of 835 days at the rate of N200,000.00 per day and it shall be so calculated until the Defendant returned the Swamp Buggy Excavator to the Plaintiff
b) The sum of N60,286,600.00 being the hiring rate for 7 Welding Machines and One Water Pump at the rate of N6,600.00 per day for each of the Welding Machine and N27,500.00 per day for the Water Pump from 18th April 2003 to 13th July 2005 a period of 818 days
c) An order mandating the Defendant to repair the Swamp Buggy Excavator and return same to the Plaintiff in good working condition.
d) An order mandating the Defendant to repair the Welding Machine damaged by the Defendant.
e) An Interest of 21% per annum on the above sums to be calculated from 1st January 2006 until judgment and after judgment on the judgment sum until the entire debt is liquidated.
The defendant counter claimed in the following terms:
Wherefore the Defendant claims from the Plaintiffs as follows:
a) Refund of deposit of N3 Million for the hiring of the Swamp Buggy
b) Hiring of low Bed from Warri to Port Harcourt (payment made twice) – N576,000.000
c) Cost of public relation and security for the movement of Swamp Buggy – N148,000.00
d) Provisions of security for the abandoned Swamp Buggy from 7/3/03 -29/12/03 at the cost of N10,000.00 per day – N2,930,000.00
e) Hiring of low bed at Agip Jetty paid to Donaldson concerns -N400,000.00
f) Hiring of crane to offload and load Swamp Buggy at Agip Jetty – N100,000.00
g) Hiring of low Bed from Port Harcourt to Warri and Warri to Portharcourt – N670,000.00
h) Payment for storage of Swamp Buggy From 18th February 2004 at Richi Yard Port Harcourt at the rate of N90,000.00
Per month up to 31/12/05 – N1,980,000.00
Deposit = N8,454,000.00
Special Damages
(2) Feeding and Accommodation of Plaintiff operators and (1) mechanic from 7/3/03 to 3/8/03.
A total of 173 days at the rate of N1,6950.00 per day = N570,900.00
(2b) Hiring of Tug boat and barge to mobilize and demobilize the faulty Swamp Buggy (Barge) for 75 days.
Mobilize for 5 days at the rate of N52,000.00 per day – 3,900,000.00
(c) Tugboat (1) for 10 days
Mobilize 5 days – 650,000.00
Demobilization 5 days at the rate of N65,000.00 per day – 4,550,000.00
(4a) Cost of hiring equipment Welding Machines,
-4 Mechanic Welding Machine for 212 days at
– The rate of N12,000.00 per day – N10,176,000.00
– I Barge for 180 days at the rate of N52,000.00 per day – N9,360,000.00
– 1 X-ray equipment for 180 days at Rate of N6,500.00 per day – N1,170,000.00
– 3 Electric Quavers for 180 days at the rate of N600.00 per day – N3,240,000.00
-1, 15 ton Crane for 180 days at rate of N150,000 per day – N50,946,000.00
b. Cost of feeding/Accommodation of 41 personnel (welders, filters, community, labour, operators, X-ray Technicians) at the rate of N1,650 per day for 180 days – N85,596,860.00
c. community settlement a result of delayed execution of project due to faulty Swamp Buggy at N5 per month for 6 months April September 2003 – N30,000.00.
3. General Damages is N63,574,900.00
4. Interest at the rate of 21% per annum on the sum before judgment and thereafter 10& per annum on the judgment sum, until the entire debt is liquidated.
After hearing the parties the learned trial judge entered judgment in favour of the plaintiff as follows:
Consequently, judgment is entered in favour of the Plaintiff per relief 1(a) of Plaintiff 1st amended statement of claim.
Relief 1(b) is not established and therefore not proved. It does not succeed. it is not granted.
Relief 1(C) an order of this Honourable Court is hereby made mandating the Defendant to repair the Swamp Buggy and return same to Plaintiff in line with the term in exhibit A. Relief 1(d) there is nothing upon which the Welding machines can stand, so I make no order then.
Relief 1(e)- As gleaned from exhibit A, there is no where the parties agreed in the contract that prejudgment or post judgment interest will run, so it is hereby refused.
See the case of THOMAS V OLUFOSOYE (1986) 1 NWLR PART 18 AT 669 PARAGRAPH A.
In the Plaintiff claim, relief 1(a) and 1 (c) are hereby granted as prayed, while relief 1(b) (d) and (e) are hereby refused and do not succeed.
His Lordship further found thus:
On the whole, I hold that the payment of interest let alone 21% per annum as prejudgment interest and 10% as post judgment interest in the counter claim, and (claim) was not within the contemplation of the parties and as such cannot be granted.
Consequently therefore, that the entire counter claim falls like a placard as it stands on nothing.
The Defendant counter claim must fail, as one cannot build something on nothing, in the face if exhibit A, which is binding on the part.
By and large, upon a holistic examination of the entire case for the Plaintiff and Defendant (Claim) and counter claim also for which address of both the balance of probabilities, the plaintiff claim succeeds in part. The relief 1(a) and (c) are granted in favour of Plaintiff, while the counter claim is dismissed in its entirety.
Miffed by the said decision the defendant filed Notice of Appeal containing 10 Grounds of Appeal. The 10 Grounds of Appeal read thus:
GROUNDS OF APPEAL
The learned trial judge erred in law by basing its decision only on the issues submitted and argued for the Plaintiff/Respondent when the said issues and their resolution do not encompass the issues submitted and argued for the Defendant/Appellant.
PARTICULARS OF ERROR
a) The learned trial judge did not consider the submission for the Defendant/Appellant that the Plaintiff/Respondents offer of a substitute contract amounts to an admission that it was a breach of contract offer the hire of Swamp Buggy because the said equipment did not work even for one day.
b) Nor did the Court below consider the submission for the Defendant/Appellant that the admitted failure of the hired equipment to work amounts to a breach of contract on the part of the Plaintiff/Respondent which entitled the Defendant/Appellant to recover the advance payments it made and also to recover other losses it suffered as a result of the said breach of contract.
c) The Court below did not at all consider and pronounce upon the 4th issue submitted and argued for the Defendant/Appellant that the Plaintiff/Respondent was bound to mitigate the alleged damages it claimed.
d) The decision of the Court below in its entirety amounts to denial of fair hearing to the Defendant/Appellant and has resulted in a miscarriage of justice.
GROUND TWO: ERROR IN LAW
The learned trial judge erred in law when, without considering and pronouncing on the submissions made for the parties, she found for the Plaintiff/Respondent in these words:
Whether the welding machine and water pump are for the unused period cannot change and/or take away the express position of Exhibit A that the hire rate i.e. N25,000.00 per hour continues to run irrespective of whether the Swamp Buggy is working or not clause 8 of Exhibit A
PARTICULARS OF ERROR
a) It was the Plaintiff/Respondent that offered the use of the welding machine and water pump as compensation for the unused period of the hire because of its breach of the hire agreement for the Swamp Buggy contained in Exhibit A.
b) Both parties agreed that the agreement in Exhibit A has been terminated because the hired Swamp Buggy did not work.
c) The parties having agreed and acted on the substitute contract of compensating the Defendant/Appellant for the unused period of the hire, the Plaintiff/Respondent is estopped from reverting to Exhibit A and its terms.
d) The finding by the learned trial judge that the Defendant/Appellant remained liable to the Plaintiff/Respondent based on Exhibit A is, in the circumstances, perverse.
e) Contrary to the finding of the Learned Trial Judge, Exhibit A did not say that the Defendant/Appellant would remain liable to pay for the said hired equipment (Swamp Buggy) whether it worked or not.
f) The submission for the Plaintiff/Respondent is:
that the hiring rate will not work during the Period of breakdown.
g) The learned trial judge also found as follows:
Clause 8- The rate is on hourly basis, irrespective of whether it works or on standby Not whether it works or not.
h) Only a working equipment can be on standby.
GROUND 3: ERROR IN LAW
The learned Trial Judge erred in law when she failed to consider and pronounce on the submission for the Defendant/Appellant that the contract in Exhibit A has been terminated by mutual consent and that the Swamp Buggy never worked up to the time it was salvaged or recovered at the request of the Plaintiff/Respondent, or at all.
PARTICULARS OF ERROR
a) The Plaintiff/Respondent conceded that the machine broke down and needed to be jointly salvaged or recovered as at the date of exhibit C (15/10/03).
b) In the course of the subsequent salvage/recovery operation the Plaintiff/Respondents operatives went in search of diesel and never came back.
c) The plaintiff/Respondent conceded that it received letters from the Defendant/Appellant complaining that the scrap Swamp Buggy was blocking the Right of Way of (ROW) of oil companies and was not notified to the threat of one such company to surcharge the Defendant/Appellant the sum US$159,429.50 that Wilbros Nigeria Ltd Charged to remove the said Swamp Buggy from the said Right of Way.
d) The Defendant/Appellant took part in the recovery exercise to head off the said surcharge and not because of Exhibit A.
e) There is no evidence that the said Swamp Buggy was repaired after the joint exercise to remove it from the Right of Way.
f) The learned trial judge merely held the Defendant/Appellant liable whether the Swamp Buggy worked or not.
g) The authorities on which the Defendant/Appellant relied show that even a written contract can be breached or rescinded.
GROUND 4: ERROR IN LAW
The learned trial judge erred in law when she agreed with the Plaintiff/Respondent that the Defendant/Appellant damaged the said Buggy and without considering the case of the Defendant/Appellant and the available evidence, she commanded thus:
An order of this Honourable Court is hereby made mandating the Defendant to repair the Swamp Buggy and return same to the Plaintiff in line with the terms in Exhibit A.
PARTICULARS OF ERROR
a) All available evidence show that the machine never worked and was later salvaged or recovered at the instance of both parties.
b) By Exhibits Q, Q1, Q2, Q3 and other documents the Defendant/Appellant demobilized the swamp Buggy on the ground that it did not work for even one day and asked the Plaintiff/Respondent to remove the said Scrap Swamp Buggy from the Right of Way.
c) By Exhibit P1 the Plaintiff/Respondent accepted the rescission of the said contract, pleaded with the Defendant to continue to secure the said scrap equipment an also offered a replacement contract of other equipment to make up for the unused period of the Swamp Buggy.
d) The evidence of DW1, DW2 and DW4 on the above particularly the evidence that the said equipment never worked, was not subjected to any cross examination.
e) The contract in Exhibit A on which the order of lower Court was based was never restored after it was admittedly fundamentally breached by the Plaintiff/ respondent and categorically rescinded by the Defendant/Appellant and was no longer binding on the parties
f) PW1, THE Plaintiff/Respondents only witness conceded under cross examination that the recovery of the said Buggy in October 2003 was to be a joint effort.
g) The sequence of events relied upon by the Defendant/Appellant are common ground between the parties.
h) The Defendant/Appellants pleading and available undenied evidence show that the Plaintiff/ Respondents representative was absent when the Swamp Buggy was recovered.
i) Relief (a) of the further Amended Statement of Claim is predicted on the hiring rate, from 20th October 2003 well after the admitted breach of the hire agreement and before the alleged tampering with and damage to the said equipment by the Defendant/Appellant.
j) The order in question does not demonstrate a dispassionate and logical appraisal of the available evidence.
GROUND 5: ERROR IN LAW
The learned trial judge erred in law when she found thus:
is there any agreement reduced into writing to that effect, that the welding machines and water pumps were to make up for the unused period of Swamp Buggy? I find no such document tendered by both parties.
PARTICULARS OF ERROR
a) In exhibit P1 the Plaintiff/Respondent offered the Defendant/Appellant the use of the said welding machines and water pump
for the unused period of Swamp Buggy.
b) By Exhibits z, z1, z2 and H1 the defendant/Appellant acted on the said offer.
c) Under cross examination on 25/5/06 PW 1 conceded that the purpose of the substitute contract was to resolve the issue of the Swamp Buggy from it.
d) Both parties are in agreement that they reached such an agreement, have acted on it and are estopped from reverting to it.
e) Our law allows both oral and written agreements and parties to bind themselves without interference from the Court.
GROUND 6: ERROR IN LAW
The Learned trial judge erred in law when she found thus: On issue 1 there is ample evidence from PW1 which is not dislodged by the Defendant witnesses (sic) that the Swamp Buggy was tampered with by the Defendant therefore occasioning breach of exhibit A. The PW 1 said that the Plaintiff did not know that the Defendant had moved the Swamp Buggy from their work site in Bayelsa to Port Harcourt. There is also evidence from both parties that the key to the Swamp Buggy was at all material time with the Plaintiffs operator, yet without knowledge of the Plaintiff the Swamp Buggy was moved to Port Harcourt from Bayelsa.
PARTICULARS OF ERROR
a) In paragraphs 8 and 9 of its Reply to the Statement of Defence and Counter claims the plaintiff /Respondent made it perfectly clear that it was aware of and privy to, the fact that the Buggy was to be sent to Port Harcourt in the course of it joint salvage/recovery. But blamed the alleged damage on the unsafe offloading of the said equipment.
b) In paragraph 5 of its Statement of Claim the plaintiff/Appellant averred that on 20/10/03 its (the Plaintiffs)
Operator drove the Swamp Buggy Excavator into a Barge at Obama to be taken to Agip at Port Harcourt.
c) The Defendant/Appellant denied tampering with damaging or operating the faulty Swamp Buggy in its pleadings, letters and the evidence of 3 of its 4 witnesses as witness the effect of Exhibit Q-Q5. The Defendant/Appellant letter of 5/1/2004 on which the Plaintiff/Respondent relies to make the allegation belies the said allegation.
d) The plaintiff /Respondents only witness was cross-examined with a view to showing that the allegation that the Defendant/Appellant tampered with, or operated, the Swamp Buggy on or about 5/1/04 cannot be believed in view of the Plaintiff/Respondents State of pleadings and sequence of events.
e) The questions put to PW 1 under cross examination on 25/5/06 centered on the fact that the Swamp Buggy was derelict and that Exhibit C was the result of a joint effort to salvage it and remove it from Right of Way. PW1 was reduced to saying that it was the Defendants that stated in one of its letters that they offloaded the Swamp Buggy from the barge causing destruction. The phantom letter was never tendered.
f) The contract in exhibit A was fundamentally and admittedly breached by the Defendant/Respondent and was never reinstated.
g) The said allegation of tampering with is criminal in nature but was not proved beyond reasonable doubt, or at all.
GROUND 7: ERROR IN LAW
The learned trial judge erred in law and misconceived the facts when she found a contradiction in the case of the defendant that the use of welding machines at the rate of N4,000 per day would compensate the Defendant for the unused period for the hire of the Swamp Buggy.
PARTICULARS OF ERROR
a) The said hire rate was to be used to compute the compensation to the Claimant.
b) The computation was to be based on the Time Sheet signed by both parties which the Plaintiff/Respondent admittedly sent to the Defendant/ Appellant.
c) The parties did not complain of any difficulty in understanding their agreement on the issue.
GROUND 8: ERROR IN LAW
The learned trial judge erred in law by admitting Exhibit A in evidence and acting on it.
PARTICULARS OF ERROR
a) To be admissible in Evidence Exhibit A should have been stamped as a Receipt, but it was not.
GROUND 9: ERROR IN LAW
The Learned Trial Judge erred in Law when it failed to consider and pronounce upon the case and submission of the Defendant/Appellant that the Plaintiff/Respondent should have mitigated any damage it claimed to have suffered.
PARTICULARS OF ERROR
a) The issue of Mitigation of Damages loomed large in the case and was the 4th issue submitted and argued by the Defendant/Appellant, but the Court below did not consider or pronounce upon it.
b) The Plaintiff/Respondent found the submissions for the Defendant/Appellant on the point unanswered and left them unanswered.
c) The failure of the Learned Trial Judge to consider and pronounce on the point is a violation of the Defendant/Appellants right to fair hearing and, in the circumstances, amounts to a miscarriage of justice.
d) The Defendant/Appellant pleaded elaborately mitigating circumstances and copiously led a raft of documentary and oral evidence of such circumstances that occurred prior to the date (27/10/03) from which the Plaintiff/ Respondent claims damages; it informed the Plaintiff that the Swamp Buggy was bad and asked it to remove the said equipment from the Right of Way. See Exhibits Q , Q05.
e) The Plaintiff/Respondent acknowledge the said letters and conceded that the contract in exhibit A was at an end by offering a substitute contract
f) The Learned Trial Judge also found that it was provided in Exhibit A that the Swamp Buggy was at all material times in the possession of the Plaintiff through Its servants.
g) The Defendant/Appellants pleadings are replete with efforts made by the defendant to enable the plaintiff/Respondent to mitigate any losses it may have suffered all of which were rejected including the rejection of the said Swamp Buggy when it was returned to the Plaintiff/Respondent at great cost to the Defendant/Appellant.
h) BY Exhibits D and E the Plaintiff/ Respondent asked the Defendant to wait for the direction of its agent, Donaldson Concern on how the said Buggy would be returned but the said Donaldson did not so direct and when the said agent received the sum of N400,000 from the Defendant, it converted the said sum and also failed to return the said equipment to the Claimant.
i) PW1 testified that the said equipment was legally in the Plaintiff/Respondents Possession through its employee who had its ignition key and that it also owned a barge with which the said Buggy could have been moved by it.
j) The Evidence of DW1, DW2, DW3 and DW4 show that the Plaintiff/Respondent always had possession of the said equipment but decided to abandon or reject it because it was a scrap.
GROUND 10: ERROR IN LAW
Learned Trial Judge erred in law when, without considering the submissions made for the Defendant/Appellant, she relied on the provisions of Exhibit A to dismiss the counterclaim in the following words;
The Relief 1a, b, c to h of the counter-claim cannot stand in the face of Exhibit A executed by the parties which remains binding.
PARTICULARS OF ERROR
a) It was submitted for the Defendant/Appellant that on the authorities the breach of the Hire Agreement contained in Exhibit A by the Plaintiff/Respondent entitled the Defendant/Appellant to rescind the contract without any further obligation under the contract and also entitled the Defendant/Appellant in the circumstances to its counter-claim.
b) The Plaintiff/Respondent had no answer to the above submission and is deemed to have conceded the point.
c) The Learned Trial Judge did not consider or pronounce on the said submission even though it was supported by a raft of high judicial authorities and precedents.
d) The Defendant/Appellant is entitled to not only to the restitutions for the Hire of the Swamp Buggy bus also for the other expenses it made at the request or instance of the Plaintiff/Respondent as prayed for in RELIEFS 1(a) to 2(e) of the counter-claim.
e) The Defendant/Appellant is also entitled to the consequential losses in claims in paragraphs 2(c)(i) 2(c)(iii).
After transmission of record of appeal to this Court, parties filed and exchanged briefs of argument.
ARGUMENTS OF COUNSEL
APPELLANT BRIEF OF ARGUMENT
Appellants brief of argument was filed on 16/3/14 it was settled by her learned counsel, JAMES EZIKE. Learned counsel to the Appellant formulated 3 issues for determination by this Court, viz:
1. Whether in all the circumstances, the lower Court was right not to consider and pronounce on the unanswered issue of the failure of the plaintiff to completely or otherwise mitigate the alleged damages it claimed and whether the said failure occasioned a miscarriage of justice?
2. Whether in the circumstances the Court below was right to base its decision on the terms of Exhibit A and without pronouncing on the submissions made for the Defendant?
3. Whether the lower Court was right to refuse the counter claim of the defendant in its entirety, or at all?
ISSUE ONE
Learned Counsel to the Appellant submitted on issue one that it was common ground that because the said machine (swamp Buggy) did not work the Plaintiff offered the Defendant a substitute contract; and the plaintiff conceded that the said substitute contract was to compensate the Defendant for the unused period of the hire.
Learned counsel further submitted that even based on the said rate of award made by the trial Court (20/10/03) the plaintiff should also have wholly mitigated its alleged losses for as pleaded by it in paragraph 5 of the Amended Statement of Claim at p. 101 of the record, on the said 20/10/03, Plaintiffs Operator drove the swamp Buggy Excavator into a barge at Obama to be taken to Agip Jetty at Port Harcourt.
Learned Counsel also submitted that the Plaintiff failed to wholly mitigate its imaginary damages by refusing to accept its said equipment when it was returned to it by the Defendant; which the Court below failed to pronounce on.
Learned Counsel further submitted that if the probability test was applied to the case in hand the only reason the Plaintiff would have left its Buggy dead in the water and ignored to use or accept it when returned was because it was a scrap and a subterfuge to avoid refunding the sums expended on it and counter claimed by the Defendant. He relied on the case of NNAJIOFOR VS UKONU (1985) 2NWLR (PT 9) 686 at pp 707- 708.
Learned counsel submitted on behalf of the Appellant that there was no doubt that the Defendants/Appellants right to fair hearing had been violated by failure of the trial Court to consider and pronounce upon the 4th issue submitted and argued before it without opposition.
He relied on the case of UBN VS NWAOKOLO (1995) 6NWLR (PT 400) 127 at 150-151.
Learned Counsel to the Appellant urged this Court to resolve issue one in favour of the Appellant.
ISSUE TWO
On Issue Two, learned counsel submitted that, without doubt, the lower Court made numerous erroneous findings which resulted in its reliance on Exhibit A to award the Plaintiff the 2 reliefs it claimed as arising from the contract in Exhibit A and for the alleged damage to the Buggy.
Learned Counsel further submitted that the Court below could not be correct to rely on the terms of Exhibit A as it did throughout its judgment by treating the rescinded and substituted contract as continuing from 20th October 2003 well after its termination.
Learned counsel to the Appellant contended that even if there was no breach, there could be no doubt that the parties were entitled to vary or even discharge the contract in Exhibit A because at all material times it was still executor. He relied on the case of CHIEKE VS OLUSOGA (1997) 3 NWLR (PT 494) 390 at p. 401.
Learned counsel also submitted that the failure to consider Defendants/Appellants case and submission at page 82 of the Record amounts to a denial of its right to fair hearing thus also rendering the judgment a nullity. He relied on cases of ABISI VS EKWEALOR (1993) 6NWLR (PT 302) 643 at 673 and MAFIMISEBI VS EHUWA (2007) 2NWLR (PT 1018) 385 AT 434.
He submitted that the Plaintiff/Respondent had not disclosed any cause of action against the Defendant/Appellant or otherwise proved its case, and urged this Court to resolve issue 2 in favour of the Defendant/Appellant.
ISSUE 3
On issue 3, learned counsel to the Appellant submitted that without considering and pronouncing on the submissions of the Defendant the lower Court peremptorily dismissed the Defendants counter-claim in these laconic words: the totality of the evidence adduced by DW1 -4 in no way is able to sustain the counter claim in the face of Exhibit A (see page 192 of the Record)
He further submitted that in the circumstances the Defendant was entitled to recover not only the 3 Million Naira it paid for the Buggy that failed to work but also the N250,000.00 it paid to transport it to the site where it failed to work. Learned counsel to the Appellant urged this Court to also resolve issue 3 in favour of the Defendant/Appellant.
In conclusion learned Counsel to the Appellant urged this Court to allow this appeal.
RESPONDENTS BRIEF OF ARGUMENT
Respondents brief of Argument was deemed filed on 26/2/2018. It was settled by her Counsel EMMANUEL OGHENEJAKPOR, ESQ.
Learned counsel to the Respondent formulated 3 issues for determination by this Honourable Court Viz:
1. Whether in all the circumstances, the lower Court was right not to consider and pronounce on the unanswered issue of the failure of the Plaintiff to completely or otherwise mitigate the alleged damages it claimed and whether the said failure occasioned a miscarriage of Justice?
2. Whether in the circumstances, the lower Court below was right to base its decision on the terms of Exhibit A and without pronouncing on the submission made for the defendant?
3. Whether the lower Court was right to refuse the counter claim of the Defendant.
ISSUE ONE
On issue One, learned counsel to the Respondent submitted that Mitigation of damages was not relevant to the circumstance of this case and that the Appellant could not talk of Respondents failure to mitigate damages without the Appellant conceding that the Appellant was in breach of the contract.
Learned counsel to the Respondent further submitted that the fact that the Appellant allowed the Swamp Buggy to be loaded into the Appellants Barge on the 20th October 2003, it is clear admission by the Appellant that the Appellant had the duty to return the Swamp Buggy to the Respondent and the Appellant had agreed to perform it. He relied on the case of RACE AUTO SUPPLY CO. LTD. VS. AKIB (2006) 6SC.
Learned counsel also submitted that it was the Appellant who should mitigate her damages if the Appellant had no further need for the Swamp Buggy by returning the Swamp Buggy to the Respondents yard at Warri.
Learned Counsel further submitted that since Swamp Buggy had been in possession and control of the Appellant from 20th October, 2003, the issue of the Respondent mitigating her damages was irrelevant to the circumstance of this case.
He urged this Court to resolve Issue One in favour of the Respondent.
ISSUE TWO
Learned Counsel to the Respondent submitted that the lower Court is perfectly right in law in basing its decision relating to the hiring of the Swamp Buggy on Exhibit A in the circumstance of this case and Appellants submissions were considered and rightly rejected by the lower Court.
Learned counsel to the Respondent also contended that the alleged non performance of the swamp Buggy or the break-down did not constituted a breach of the contract on the part of the Respondent in the circumstance of this case having regard to the terms of Exhibit A. He relied on the case of OSUN GOVERNMENT VS DALAMI NIG. LTD (2007) 3 SC (PT 1) PG 131.
Learned Counsel also submitted that the hiring of the 7 welding machines and One Water pump by the Respondent to the Appellant was not a substitute contract to the contract of the Swamp Buggy but it was a separate and distinct contract.
Learned counsel to the Respondent further submitted that the Respondent led credible evidence that the Appellant damaged the Swamp Buggy in breach of terms of Exhibit A which clearly stipulated that only staff of the Respondent should operate and handle the Swamp Buggy, equipment known to the Appellant to be highly sensitive.
Learned counsel urged this Court to resolve Issue 2 in favour of the Respondent.
ISSUE 3
Learned Counsel to the Respondent submitted on issue 3 that the lower Court was right to refuse the Appellants Counter Claims in the circumstance of this case as the Appellants counter claims are remote and unanticipated by the parties. He further submitted that the Respondent performed her side of the agreement by delivering the equipment to the appellant, provided an operator and mechanic for the equipment; and when the equipment broke down the Respondent imported spares and effected repairs and incurred expenses far more than the N3,000,000 paid by the Appellant as a deposit.
Learned counsel to the Respondent also submitted that it was inconsistent for the Appellant to contend that the 7 welding machines and one water pump was offered to the Appellant as compensation for non performance of the Swamp Buggy and which the Appellant accepted and at the same time turned around to claim damages for the same alleged non performance of the Swamp Buggy. He urged this Court to resolve Issue 3 in favour of the Respondent.
Learned counsel concluded by urging this Court to dismiss this Appeal for lack of merit.
RESOLUTION OF ISSUES
I have deeply considered the submissions of learned counsel, and the contents of the record of appeal. It seems the two counsel in this appeal are agreed on the issues for determination in this appeal. I shall therefore resolve issues one and two together and issue three later in this judgment.
ISSUES
1. Whether in all the circumstances, the lower Court was right not to consider and pronounce on the unanswered issue of the failure of the Plaintiff to completely or otherwise mitigate the alleged damages it claimed and whether the said failure occasioned a miscarriage of Justice?
2. Whether in the circumstances, the lower Court below was right to base its decision on the terms of Exhibit A and without pronouncing on the submission made for the defendant?
3. Whether the lower Court was right to refuse the counter claim of the Defendant.
ISSUE ONE
Whether in all the circumstances, the lower Court was right not to consider and pronounce on the unanswered issue of the failure of the Plaintiff to completely or otherwise mitigate the alleged damages it claimed and whether the said failure occasioned a miscarriage of Justice?
ISSUE TWO
Whether in the circumstances, the lower Court below was right to base its decision on the terms of Exhibit A and without pronouncing on the submission made for the defendant?
Indeed it is trite law that a Court should consider and pronounce on all issues submitted to the Court see OSASONA V AJAYI & ORS (2004) 14 NWLR PART 894 p.527 but this is not necessarily fatal unless the issue not pronounced upon is crucial. See BRAWAL SHIPPING (NIG) LTD V. I ONWADIKE CO. LTD & ANOR (2000) FWLR PART 23 p. 1254. Failure to do so is a breach of procedural principle. See OSASONA V. AJAYI (supra). OKOTIE-EBOH V MANAGER & ORS (2004) 18NWLR PT. 905 p242. The breach must however not lead to a miscarriage of justice see OSASONA V AJAYI (supra).
In resolving the above two issues the following documentary exhibits are very pertinent:-
Exhibit A – The condition of hire dated 28/2/2003
Exhibit C – Meeting between the parties on 15/10/03
Exhibit D – Demobilization of Swamp Buggy dated 22/10/03
Exhibit P1- letters titled RE:FAULTY SWAMP BUGGY AND THE HIRE OF OTHER EQUIPMENT
Exhibits H and H1 are the letters of demand served on the defendant (now appellant) by the Plaintiff (now Respondent)
Exhibit A is the hire agreement between the parties.
Exhibits H and H1 are unreplied letters of demand written to the defendant by the plaintiff.
What is the legal implication of failure to reply a letter which requires a response by nature of its contents? It is trite law that it is deemed to be an admission of the contents of the letter. See N.B. CO. LTD. V. UBANI (2014) 4NWLR (PT 1398) 421 TRADE BANK PLC V CHAMI (2003) 13 NWLR (PT 336) 158; ORUWARI V OSLER (2013)5NWLR (PT.1348) 535 BELL VIEW AIRLINES LTD. V. FADAHUNSI & ORS (2013) LPELR 25915. The failure of the appellant to reply the two letter is fatal to its case.
Besides the above, the provisions of Exhibit A are very clear. It provides as follows(among other things)
a) The duration of hire from 28/2/2003 till the Swamp Buggy is returned to No 77A Airport Road Warri.
b) In case of breakdown, the hirer should notify the lessor immediately and no unauthorized repairs should be carried out on the machine without lessors approval.
c) Security was to be provided by the lessor for the duration of the hire.
d) The sum of Three Million Naira as mobilization fee or deposit hire charge for 15 days to be paid.
The above provisions of Exhibit A further fortify the findings of the learned trial judge.
All the above knock the bottom out of the arguments of learned counsel for the appellant on issues 1 and 2.
The non-consideration of issues raised at the lower Court did not lead to any miscarriage of justice.
Should the Respondent have mitigated his losses?
It is the duty of a plaintiff to mitigate his losses. According to NNAEMEKA-AGU JSC. in OKONGWU V NNPC (1989) 4NWLR PT 115 P. 296.
The duty to mitigate does not imply that a plaintiff whose contractual right has been breached is automatically relegated to a position inferior to the defendants wherein he is obliged to pick up, as it were, the crumbs that fall from the masters table. The true position is that a defendant who is already in breach of his contract is, as it were, demanding a positive action from the plaintiff who is innocent of blame for this simple reason, the law has never taken the view that such a plaintiff has to undertake an onerous burden in the name of mitigation of damages. The duty of mitigation is that of reasonable man acting reasonably.
However in the instant appeal, the terms of the agreement (Exhibit A) cover every event that took place between the parties from the delivery of the machine, to its breakdown and its return. What the respondent claimed at the lower Court was within the contemplation of the parties to Exhibit A and within the preview of the terms of the agreement so the issue of failure to mitigate losses did not arise. I resolve issue 1 and 2 against the appellant in the circumstance.
ISSUE THREE
Whether the lower Court was right to refuse the counterclaim of the defendant.
On the counter claim of the appellant/defendant, the learned trial judge had held as follows:
Now considering the counterclaim wherein-relief coughed as 1(a) (h), 2a c(i) (ii) (iii) as special damages and General damages.
The totality of evidence adduced by DW1 – 4 in no way is able to sustain the counterclaim, in the face of exhibit A, which is clearly what Defendant and Plaintiff agreed to regulate and guide them in relation to the hire of Swamp Buggy and nothing as to Welding Machines or Water Pump.
The sum of N3Million which Defendants are seeking a refund was only a deposit for 15 days, for which there is ample evidence that the Defendant have continued to keep the Swamp Buggy till date, yet the terms in Exhibit A must be enforced to the letter.
The relief 1 a, b, c to h of counterclaim stand in the face of exhibit A executed by parties which remains binding.
The hiring of low bed to convey the Swamp Buggy is affected by Clause 18 exhibit A to the effect that cost of lowering or conveying the equipment to and fro is the Responsibility of the hirer, (Defendant) security for watching over the equipment and payment thereto, feeding and accommodation as sought in relief 2 a – c as special damages cannot stand in favour of Defendant having been spelt out in exhibit A, as the sole responsibility of the defendants. The reliefs are not granted. Parties are bound by the contract they voluntarily entered into and cannot act outside the terms an d condition contained in the said contract.
In the instant case between Plaintiff and Defendant i.e. exhibit A it did not stipulate that interest was to be paid in case of default thereafter, interest sought via the claim as well as the counterclaim cannot arise, let alone been awarded by the Court.
The Court is bound to give effect to the clear provisions of the contract between Plaintiff and Defendant i.e. exhibit A.
On sanctity of contract and bindingness on parties thereto, see
1 CHUKWUMAH V- SHELL PET. DEV. CO. (NIG) LTD. (1993) 4 NWLR PART 289, 512
2. UNION BANK OF NIGERIA V PROF. ALBERT OJO OZIGI (1994) 3 NWLR PART 333.
On the whole, I hold that the payment of interest let alone 21% per annum as prejudgment interest in the counterclaim and (claim) was not within the contemplation of the parties, and as such cannot be granted.
Consequently therefore, the entire counter claim falls like a placard as it stands on nothing. The Defendant counterclaim must fail, as one cannot build something on nothing, in the face of exhibit A, which is binding on the part.”
I have deeply considered the findings of the learned trial judge in the light of the documentary exhibits admitted at the Court below as well as what I have earlier stated in this judgment. What the defendant counterclaimed for confronts the contents of exhibit A in material particular.
I should also add that all the appellants arguments on this issue fall flat in the face if Exhibits G and H which were tendered at the lower Court. The two exhibits raised vital issues which required answers from the appellant. Unfortunately it did not deem it fit to reply them.
Exhibit H and H1 put it to the appellant that it was indebted to the respondent to the tune of N33,614,600 being the hiring rate due in respect of the Swamp Buggy, the seven welding machine and 1 water pump.
Exhibit H1 informed the appellant that it would continue to pay the daily hire charge and all costs of storage of the equipment. It also demanded the repairs of the equipment and its return. None of the letters was replied inspite of the fundamental issues raised therein.
I see no merit in the circumstance in this issue. I resolve it in favour of the Respondent.
The primary concern of an appellate Court is whether a decision appealed against is right or wrong and not whether the reasons for the decision are right or wrong. See ARISA V STATE (1988) 3 NWLR (Part 83)p. 386, UZOCHUKWU & ORS V ERI & ORS (1997) 7 NWLR (PT. 514) p. 535;
In this appeal, I am satisfied the learned trial judge arrived at the right decision which should not be disturbed. The judgment of Delta State High Court in Suit No. W/33/2004: Advanced Coating Technology (Nig) Ltd V. Express International Plant Hire (Nig.) Ltd. delivered on 22/6/2012 is hereby affirmed.
This appeal lacks merit. It is hereby dismissed with cost in favour Of the Respondent.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I was served with a draft copy of the lead Judgment prepared by my learned brother T.O. AWOTOYE, JCA in this appeal. His Lordship has ably and admirably treated all the salient issues canvassed by Learned Counsel to the parties in this appeal before arriving at his conclusion. I am in entire agreement with his reasoning and the conclusion he arrived at that this appeal is unmeritorious and should be dismissed. I abide by the order as to costs made by Awotoye JCA in the lead Judgment.
PHILOMENA MBUA EKPE, J.C.A.: I have had the benefit of reading in draft the lead judgment my learned brother, TUNDE OYEBANJI AWOTOYE, JCA, just delivered. I agree entirely with the reasoning and conclusion reached. The appeal lacks merit, and it is accordingly dismissed by me.
I abide by the order as to cost in favour of the Respondent.
Appearances:
Moses O. Ologwu For Appellant(s)
E.O. Oghenejakpor For Respondent(s)
