AERONAUTICAL ENGINEERING & TECH. SERVICES LTD v. NORTHWALES MILITARY AVIATION SERVICES LTD (2020)

AERONAUTICAL ENGINEERING & TECH. SERVICES LTD v. NORTHWALES MILITARY AVIATION SERVICES LTD

(2020)LCN/14813(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, November 20, 2020

CA/A/327/2014

RATIO

APPEAL: EFFECT OF FAILURE OF AN APPELLANT TO FORMULATE AN ISSUE FROM

The law is unequivocal that where an Appellant fails to formulate an issue from a ground of appeal, that ground of appeal is deemed abandoned and is liable to be struck out. REPUBLIC BANK V. CENTRAL BANK OF NIGERIA (1998) 13 NWLR (Pt. 581) 306, JOSIAH CORNELIUS LTD V. EZENWA (1996) 4 NWLR (Pt. 443) 391, DANFULANI V. SHEKARI (1996) 2 NWLR (Pt. 433) 723 and LABIYI V. ANRETIOLA (1992) 8 NWLR (Pt. 258) 139. PER DONGBAN-MENSEM, J.C.A.

PLEADINGS: THE ESSENCE OF PLEADINGS

The essence of pleadings is to ensure that Parties give notice of the case to be met which enables either party to the dispute to prepare their evidence and argument upon the issues raised which saves either party from being taken by surprise. PER DONGBAN-MENSEM, J.C.A.

JUSTICE: DUTY OF COURT TO DO SUBSTANTIAL JUSTICE

I am bound by the principle postulated by the Apex Court in the case of FALOBI V. FALOBI (Supra) thus;
“In our view, if a relief or remedy is provided for by any written law (or by the common law or in equity for that matter), that relief or remedy, if properly claimed by the party seeking it, cannot be denied to the applicant simply because he has applied for it under the wrong law. To do so would be patently unjust.” Per Fatayi-Williams, JSC.
Similarly, in the case of EGOLUM V. OBASANJO & ORS. (1999) LPELR-1046 (SC), it was held thus;
“The emphasis now is more on doing substantial justice rather than on technicalities which the cross-appeal seems to be all about – see: Mathew Obakpolor v. The State (1991) 1 N.W.L.R. 113 at 129 where this Court, per Akpata, J.S.C. observed;
“That there was procedural irregularity is not in doubt. It is however an irregularity which has not led to a miscarriage of justice. The irregularity is not of a magistrate’s failure to comply at all with statutory provisions but of a failure to comply with it strictly. It is the paramount duty of Courts to do justice and not cling to technicalities that will defeat the ends of justice. It is immaterial that they are technicalities arising from statutory provisions, or technicalities inherent in rules of Court. So long as the law or rule has been substantially complied with and the object of the provisions of the statute or rule is not defeated, and failure to comply fully has not occasioned a miscarriage of justice, the proceedings will not be nullified.” Arua Eme v. The State (1964) 1 ALL N.L.R 416,421; (1964) A.N.L.R 409; Onucha Anya & Ors. v. The State (1965) N.M.L.R 62 at p. 65 and Edet Akpan v. The State (1986) 3 N.W.L.R 225 at pp.232 & 235 were referred to and followed.” Per Ogundare, JSC. PER DONGBAN-MENSEM, J.C.A.
DAMAGES: THE ESSENCE OF THE AWARD OF DAMAGES IN BREACH OF CONTRACT

The essence of the award of damages in breach of contract cases is based on restitutio in integrum. That is the award of damages in a case of breach of contract is to restore the Plaintiff to a position as if the contract has been performed. In a case of breach of contract as in the instant case, the award of damages is not mainly to punish the Party in breach. It is to ameliorate the loss to be suffered by the aggrieved Party. The decision of the Apex Court in IJEBU-ODE LGA V. ADEDEJI BALOGUN & CO. (SUPRA) stated the principle thus;
“There is no doubt that the purpose of awarding damages to the aggrieved is to restore him to the situation, so far as money can do so, he would have been if there had been no breach. The Court of Appeal applied the correct principles and was therefore right to have set aside the general damages awarded by the trial Judge, and relying on the materials before the Court restored the plaintiff to the position he would have been, if there had been no breach. – See Onaga v. Micho & Co. (1961) 1 ALL NLR 324; (1961) 2 SCNLR 101; Ukoha v. Okoronkwo (1972) 5 SC 260. The measure of damages is the loss inevitably and unavoidably flowing from the breach.” Per Karibi-Whyte, JSC (OBM). See also UBA PLC. V. BTL INDUSTRIES LTD (2006) LPELR – 3404 (SC), IFETA V. S.P.D.C. NIG. LTD. (2006) LPELR – 1436 (SC) and AGU V GENERAL OIL LTD. (2015) LPELR – 24613 (SC). PER DONGBAN-MENSEM, J.C.A.

Before Our Lordships:

Monica Bolna’an Dongban-Mensem Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Between

AERONAUTICAL ENGINEERING & TECHNICAL SERVICES LTD APPELANT(S)

And

NORTHWALES MILITARY AVIATION SERVICES LTD RESPONDENT(S)

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment): This is an appeal challenging the decision of the High Court of the Federal Capital Territory, Abuja delivered Coram U.P. Kekemeke (J). on the 26th of February, 2014 wherein the learned trial Court dismissed the suit of the Plaintiff now Appellant and affirmed the Arbitral Award by the Arbitral Tribunal.

The brief facts leading to this appeal as contained in the Respondent’s Brief of Argument are that;
“In January 20, 2012, the Respondent submitted a claim before the Arbitral Tribunal composed of the Honourable Arbitrators, Agada Elechi, FCIArb; Sunday Ibrahim Ameh, SAN, FCIArb, and Huzi I. Mshelia, Esq., claiming for cost of work done and services to the Appellant under a contract for reactivation and maintenance of Aircraft fleet, damages and interest.
The Appellant in her response denied all the claims of the Respondent consequent upon which the parties called their respective witnesses and addressed the Arbitral Tribunal. The Tribunal in a considered judgment on 5th July, 2013 awarded the Respondent the sum of $1,822,045.80 (One Million, Eight Hundred and Twenty

Two Thousand and Forty Five United States Dollars, Eighty Cents) for work done and services rendered to the Appellant, damages and sundry interest.
The Appellant, dissatisfied with the award, filed an originating motion at the High Court of FCT on 22d July, 2013 seeking an order setting aside the Tribunal’s award on the ground of purported misconduct.
In a considered ruling delivered on the 26th day of February, 2014, the FCT High Court presided over by Honourable Justice U.P. Kekemeke upheld the Arbitral Tribunal’s award of USD$1,822,045.80 (One Million, Eight Hundred and Twenty Two Thousand and Forty Five United States Dollars, Eighty Cents) for work done and services rendered and USD$50,000 (Fifty Thousand United States Dollars) as general damages in favour of the Respondent.” (See page 1-2 of the Respondent’s Brief of Argument).

The Parties in this appeal shall simply be referred to as Appellant and Respondent.

Dissatisfied with the Judgment of the learned trial Court, the Appellant filed a Notice of Appeal on 26/03/2014. The Record of Appeal was transmitted to this Court on 27/05/2014. The Appellant filed a Brief of Argument on

11/09/2014 and was deemed filed on 29/02/16 while the Respondent filed their Brief of Argument on 28/05/2018 and was deemed filed on 09/09/2020. The Appellant did not file a Reply Brief.

Before delving into the issues for determination as raised by the Parties, it is expedient to first deal with a fundamental submission made by the Respondent in its brief of argument. The Respondent submits that the Appellants raised five (5) grounds of appeal but did not formulate any issue for determination tied to ground one (1) of the Notice of Appeal. Ground one (1) states thus;
“The learned trial judge erred in law when the Court held as follows;
The Plaintiff/Appellant did not put before the Court the record of proceedings of the Tribunal.”

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The Preliminary Objection raised by the Respondent is allowed. Ground one of the Notice of Appeal filed on 26/03/2014 is hereby struck out having been abandoned by the failure to formulate an issue there on.

Alabi Oluwaseun, Esq., of learned Counsel to the Appellant distilled two (2) issues for determination.
Chris Ezugwu, Esq., of learned Counsel to the Respondent adopted the issues for determination distilled by the Appellant.

This appeal shall be determined on the two (2) issues for determination raised by the Appellant.
ISSUE 1
Whether the learned trial Court was right to have agreed with the Arbitral Tribunal in awarding the sum of US$1,822,048 as the cost of settlement of the Claimant’s claim under Milestone 1 to the Respondent unilaterally having regard to the fact that the relief sought in the Points of Claim before the Arbitral Tribunal was for Special Damages.

The learned Counsel to the Appellant states that the Respondent’s claim at the Arbitral Tribunal is for special damages in the sum of USD$1,822,045.80 (One Million, Eight Hundred and Twenty Two Thousand and Forty Five United States Dollars, Eighty Cents) but

the Tribunal departed from this claim and suo moto granted another relief in the sum of USD$1,822,045.80 (One Million, Eight Hundred and Twenty Two Thousand and Forty Five United States Dollars, Eighty Cents) in settlement of the Claimants claim under Milestone 1 which was clearly not sought for in the Points of Claim by the Respondent. That the Tribunal went beyond the scope of issues submitted before it for determination and decided a point not put by the parties which amounts to a gross misconduct. Relies on TAYLOR V. SUDDEUTSCHE (1993) 4 NWLR (Pt. 286) 127 and TRIANA LIMITED V. U.T.B. PLC (2009) 12 NWLR (Pt. 1155). Further states that Parties are bound by their pleadings and no Court has the powers to award to a Party what he has not claimed. Cites the case of SULE V. HABU (2011) NWLR PART C 1246 and YARO V. AREWA (2007) 17 NWLR (Pt. 1063).

It is the submission of the learned Counsel to the Appellant that the Tribunal and the learned trial Court were wrong for granting the sum of USD$1,822,045.80 (One Million, Eight Hundred and Twenty Two Thousand and Forty Five United States Dollars, Eighty Cents) to the Respondent having found that the Respondent did

not establish any claim for special damages as the Court cannot be seen to be rewriting the case of Parties before it. Cites U.B.N. V. AJABULE (2011) 18 NWLR (Pt. 1278).

Responding, the learned Counsel to the Respondent while agreeing with the Appellant that the Respondent did not establish the claim for special damages states that the Respondent duly established the performance of the works and services embedded in Milestone 1 of the contract between the Parties and therefore entitled to the sum of USD$1,822,045.80 (One Million, Eight Hundred and Twenty Two Thousand and Forty Five United States Dollars, Eighty Cents). That the Respondent clearly stated this in its claim and the Appellant’s submission is asking the Court to sacrifice the higher ends of substantial justice on the altar of procedural technicalities ingeniously extracted from the pleadings of the Respondent. Cites LABODE V. OTUBU (2001) 3 S.C. P.15, H.M.S. LTD V. FIRST BANK (1991) 1 S.C. (Pt. II) P. 26 and FALOBI V. FALOBI (1976) N.S.C.C. Vol. 10 P. 576. Further states the Appellant has not stated or shown that there was no contract between the Parties or that the Respondent did not render

services to the Appellant worth the amount claimed and awarded or that the Tribunal went above the amount claimed. The learned Counsel to the Respondent submits that assuming without conceding that the Tribunal was in error in finding that the Respondent did not establish any claim for special damages but still granted the sum claimed for work done under Milestone 1, the error did not occasion a miscarriage of justice and cannot justify setting aside the award by the learned trial Court. Relies on NWAEZE V. THE STATE (1996) 2 NWLR (Pt. 428) P1, UKEJIANYA V. UCHENDU, 13 WACA, P.45 and OWHONDA V. EKPECHI (2003) 9-10 SC, P.1.

It is not in dispute that the Parties in this appeal entered into a binding, contractual agreement for the reactivation of six (6) Alpha Jets Aircrafts Fleet. It is also not in dispute that the Appellant terminated the said contract agreement. It is not in contention that before the Appellant terminated the contract, the Respondent had executed part of the contract, particularly Mile 1 of the contract. It was duly agreed by the parties that payment to the Respondent is going to be after the execution of each Milestone of the contract.

The Milestone in contention is Milestone 1 and the amount due upon its execution is the sum of USD$1,822,045.80 (One Million, Eight Hundred and Twenty Two Thousand and Forty Five United States Dollars, Eighty Cents).

The Appellant is contesting the decision of both the Tribunal and the learned trial Court in awarding the same sum of USD$1,822,045.80 (One Million, Eight Hundred and Twenty Two Thousand and Forty Five United States Dollars, Eighty Cents) to the Respondent because the Respondent tagged the relief sought under special damages and the Tribunal misconducted itself by going outside the scope of what was placed before it by the Parties. This is hinged on Section 30 (1) of the Arbitration and Conciliation Act and the law in the case of TAYLOR WOODROW (NIG) LTD V. SUDDEUTSCHE ETNA-WERK GMBH (Supra) thus;
“That does not mean that every irregularity of procedure amounts to misconduct. But misconduct occurs, for example:
(1) if the arbitrator or umpire fails to decide all the matters which were referred to him;…
(2) if by his award the arbitrator or umpire purports to decide matters which have not in fact been included in the

agreement of reference;…
(3) if the award is inconsistent, or is ambiguous;…
(4) if there has been irregularity in the proceedings;..
(5) if the arbitrator or umpire has failed to act fairly towards both parties, or by deciding the case on a point not put to the parties;…
(6) if the arbitrator or umpire refuses to state a special case himself or allow an opportunity of applying to the Court for an order directing the statement of a special case;…
(7) if the arbitrator or umpire delegates any part of his authority, whether to a stranger or to one of the parties, or even to a co-arbitrator;…
(8) if the arbitrator or umpire accepts the hospitality of one of the parties, being hospitality offered with the intention of influencing his decision;…
(9) if the arbitrator or umpire acquires an interest in the subject matter of the reference, or is otherwise an interested party;…
(10) if the arbitrator or umpire takes a bribe from either party.
In each of the foregoing cases the arbitrator or umpire has misconducted himself, and the Court has power to set aside his award…” Per Ogundare, JSC. (Underlining mine).

It is crucial to state that the Appellant is not denying that the Respondent carried out Milestone 1 of the contract nor is the Appellant alleging that the execution was not proper.

Upon the execution of Milestone 1 of the contract, the Appellant issued a Certificate of Conformity to the Respondent which is a condition precedent for payment for work done. (See page 83 of the Records). This Certificate which is marked Annexure B is evidence that both Parties agree that Milestone 1 of the contract has been successfully executed. It is curious that the Appellant failed, refused or neglected to pay the Respondent despite acknowledging that the Respondent has held up to its own end of the bargain. The Court is bound by the evidence placed before it by Parties, the Court cannot go on a frolic of its own in search of evidence that was not put forward by the Parties. Furthermore, Parties are bound by the case they have put before the Court as the Court will not adjudicate on an issues outside the issues placed before it.

In the instant case, the Respondent tendered the Contract of Agreement (Annexure A) between the Parties

and the Certificate of Conformity (Annexure B) issued to the Respondent by the Appellant. These pieces of evidence were not challenged nor rebutted by the Appellant. The Respondent proffered sufficient and credible evidence to support their claim, where evidence is not controverted, the Court is bound to accept it. The decision in the case of IJEBU-ODE LG V. BALOGUN & CO. LTD (1991) LPELR-1463 (SC) succinctly explains this principle thus;
“Where there is evidence to support a claim, as here, which remains unchallenged or uncontroverted by the other party, the Court is bound to accept the evidence in support of the claim. – Incar Nigeria Ltd. v. Adegboye (1985) 2 NWLR (Pt.8) 453 at 460, Obanor v. Obanor (1976) 2 S.C.1 at pp. 4-6. There was no contrary evidence challenging these claims, and the cross-examination of the witnesses did not affect the credibility of the witnesses or weight to be attached to the evidence.” Per Karibi-Whyte, JSC (OBM).

The Appellant has argued that Parties are bound by their pleadings. It is true and not in contention that the Respondent sought for the sum awarded under special damages. However, the Respondent still

specifically stated why it is entitled to the sum which is work done under Milestone 1. The Respondent also established that it had duly executed Milestone 1 and deserves to be paid. That the Respondent captioned it “special damages” does not detract from the work done and the responsibility on the Appellant to pay. The essence of pleadings is to ensure that Parties give notice of the case to be met which enables either party to the dispute to prepare their evidence and argument upon the issues raised which saves either party from being taken by surprise. The Respondent’s claim is clear, the error of tagging it “special damages” did not mislead the Appellant in anyway or take them by surprise. The Appellant did not allege or prove that they suffered any miscarriage of justice by virtue of this mistake. I am bound by the principle postulated by the Apex Court in the case of FALOBI V. FALOBI (Supra) thus;
“In our view, if a relief or remedy is provided for by any written law (or by the common law or in equity for that matter), that relief or remedy, if properly claimed by the party seeking it, cannot be denied to the applicant simply because he has applied

for it under the wrong law. To do so would be patently unjust.” Per Fatayi-Williams, JSC.
Similarly, in the case of EGOLUM V. OBASANJO & ORS. (1999) LPELR-1046 (SC), it was held thus;
“The emphasis now is more on doing substantial justice rather than on technicalities which the cross-appeal seems to be all about – see: Mathew Obakpolor v. The State (1991) 1 N.W.L.R. 113 at 129 where this Court, per Akpata, J.S.C. observed;
“That there was procedural irregularity is not in doubt. It is however an irregularity which has not led to a miscarriage of justice. The irregularity is not of a magistrate’s failure to comply at all with statutory provisions but of a failure to comply with it strictly. It is the paramount duty of Courts to do justice and not cling to technicalities that will defeat the ends of justice. It is immaterial that they are technicalities arising from statutory provisions, or technicalities inherent in rules of Court. So long as the law or rule has been substantially complied with and the object of the provisions of the statute or rule is not defeated, and failure to comply fully has not occasioned a miscarriage of justice, the

proceedings will not be nullified.” Arua Eme v. The State (1964) 1 ALL N.L.R 416,421; (1964) A.N.L.R 409; Onucha Anya & Ors. v. The State (1965) N.M.L.R 62 at p. 65 and Edet Akpan v. The State (1986) 3 N.W.L.R 225 at pp.232 & 235 were referred to and followed.” Per Ogundare, JSC.
The Tribunal did not go outside the point put forward by the Parties, it granted the specific amount sought by the Respondent. It is also the amount stipulated in the contract. I crave indulgence to reproduce the finding of the Tribunal thus;
“The Tribunal has considered the arguments of both parties. The Tribunal agrees with the Respondent Counsel that special damages are a matter of law requiring strict proof. It is not the same as money owed. What the claimant titles special damages here is actually the claim for the sum owed. It has not provided any particulars of special damages set apart from the claim for the sum under milestone 1 of the contract for which a certificate of conformity was issued. Consequently, the Tribunal holds that the claimant has not established any claim for special damages hence; claimant’s claim for special damages fails. The Tribunal

holds further, that what the claimant is entitled to is payment for milestone 1, in line with its previous ruling.” (Emphasis supplied. See page 85 of the Records).
In light of the above, the learned trial Court rightly held thus;
“The Tribunal in my view did not spring up the amount by surprise. The issue was not raised suo motu. It was argued by both counsels. The Tribunal in my view did not want to be technical, rather it did substantial justice. The error of Counsel labelling amount for work done as damages is not such that altered the real meaning and substance of the claim. The issue in my view is not such that is beyond the scope of the claim. The amount is the same and it is expressly stated that it is for work done and services rendered as contained in the agreement or Milestone 1.” (See page 214 of the Records).
To set aside the award of the Tribunal on Milestone 1 because learned Counsel erroneously tagged it Special Damages despite establishing that it is the sum of work done is to dwell on technicalities rather than substantial justice. I am fortified by the decision in HIGHGRADE MARITIME SERVICES LTD V. F.B.N LTD (1991) LPELR –

1364 (SC) which accurately captures the instant case thus;
“The rules of procedure regarding the filing of pleadings is meant to assist the parties to make clear to one another, their respective cases so that each one can adequately prepare his evidence. Once this is achieved, the Court will not adhere to mere technicalities raised by ingenuity of counsel to pervert the course of justice. The Court should not be used and manipulated through technicalities as a vehicle for perpetrating injustice.” Per Wali, JSC. See also CHINWENDU V. MBAMALI & ANOR. (1980) LPELR – 850 (SC).

The Courts have long moved away from the era of technicalities to a regime of justice. I crave indulgence to quote extensively the dictum of my Lord, Bage, JSC in the case of HON. JUSTICE TITUS ADEWUYI OYEYEMI (RTD) & ORS V. HON. TIMOTHY OWOEYE & ANOR. (2017) LPELR – 41903 (SC) thus;
“Our duty as an Apex Court is to do substantial justice-stark justice, based on fairness which to all intent and purposes, seeks to not only ensure fairness in dispensing justice, but which is manifestly seen and duly acknowledged by all and sundry as justice both in content and context.

We are not judicial technicians in the workshop of technical Justice. The jurisprudence or logic of our reasoning is and as humanly possible, would be devoid of technicalities. The need to do substantial justice and avoid delving into the error of technicalities is well settled. The principle has been rehashed in a long line of authorities, for example:NATIONAL REVENUE MOBILIZATION ALLOCATION AND FISCAL COMMISSION (N.R.M.A.F.C) V. JOHNSON (2007) 49 W.R.N. pages 169-170 where Per Odili JCA (as he then was) opined as follows:
The Courts have deliberately shifted away from narrow technical approach to justice which characterized some earlier decisions to nonpursue the course of substantial justice. See MAKERI SMELTING CO. LTD. V. ACCESS BANK (NIG.) PLC (2002) 7 NWLR (PT. 766) 411 at 476-417.
The attitude of the Court has since changed against deciding cases on mere technicalities. The attitude of the Courts now is that cases should always be decided, wherever possible on merit. Blunders must take place from time to time, and it is unjust to hold that because, blunder has been committed, the party blundering is to incur the penalty of not

having the dispute between him and his adversary determined upon the merits.”
See also AJAKAIYE V. IDEHIA (1991) 8 NWLR (PT. 364) 504, ARTRA IND. LTD. V. NBC (1997) 1 NWLR (Pt. 483) 574, DAKAT V. DASHE (1997) 12 NWLR (PT. 531) 46, BENSON V. NIGERIA AGIP CO. LTD (1982) 5 S.C.1.”
The Courts are constantly enjoined to do justice and not sacrifice justice on the altar of technicalities. To accede to the submissions of the Appellant is to mete out injustice on the Respondent as the claim of the Appellant is hinged on a mere technicality which should not be allowed to stand.
I resolve this issue in favour of the Respondent.

ISSUE 2
Whether the learned trial Judge was right in holding that the grant of USD50,000 as general damages and interest on the award was right having regard to the materials before the Court and the peculiar circumstance of this case.

It is the submission of the learned Counsel to the Appellant that the age long principle of restitutio in integrum stipulates that where a party to a contract is in breach of its terms, the other party is entitled to claim for damages so as to be placed in the same financial

position as if the contract terms had been duly carried out. That the grant of the sum of USD$50,000 (Fifty Thousand United States Dollars) and 10% interest by the Tribunal and learned trial Court was inconsistent with this principle because the award places the Respondent in a much better position than it would have been if the contract had not been terminated. Relies on OKONGWU V. NNPC (1989) 4 NWLR (Pt. 115) 296.

Further submits that the Tribunal and the learned trial Court acted as though they were determining the suit under Tort. Cites AGBANELO V. UNION BANK (2000) 4 SC (Pt.1) 233. That the learned trial Court occasioned a miscarriage of justice by holding that there was no record of proceeding before it to determine the matter when it is not an appellate Court and urged the Court to resolve the issues raised in favour of the Appellant.

In its response, the learned Counsel to the Respondent posed the question “what position in monetary terms would the Respondent have been if the Appellant had not unilaterally terminated the contract and Respondent had gone on to successfully perform the contract? That the amount the Respondent would have made

is the profit that would have accrued to the Respondent from the total contract price of USD$4,840,200.15 (Four Million, Eight Hundred and Forty Thousand, Two Hundred and Fifteen Cents). Submits that the only controversy between the Parties at the Tribunal is whether or not the Appellant had any justification to terminate the contract and the sum of USD$50,000 (Fifty Thousand United States Dollars) awarded was compensation for the loss accruing from the termination of the remaining part of the contract by the Appellant. Cites the case of IJEBU-ODE LGA V. ADEDEJI BALOGUN & CO. (1991) 1 SC (Pt.1) 1.

Further submits that the underlying principle for awarding post judgment interest is not compensation for damages but compensation for being kept out of money which ought to be paid to the successful Party. Relies on N.B.N. LTD. V. SAVOL W.A. LTD. (1994) 3 NWLR (Pt. 333) 435 and MERCHANTS LTD. V. ALIYU (1994) 5 NWLR (Pt. 346) 667 and urged the Court to dismiss the Appeal.

The first complaint of the Appellant in this issue is the award of the sum of USD$50,000 (Fifty Thousand Utenid States Dollars) as damages for breach of contract to the Respondent.

unavoidably flowing from the breach.” Per Karibi-Whyte, JSC (OBM). See also UBA PLC. V. BTL INDUSTRIES LTD (2006) LPELR – 3404 (SC), IFETA V. S.P.D.C. NIG. LTD. (2006) LPELR – 1436 (SC) and AGU V GENERAL OIL LTD. (2015) LPELR – 24613 (SC).
The Appellant placed reliance on the decision in the case of OKONGWU V. NNPC (SUPRA) where the Apex Court in that case stated that;
“The whole question of the quantum of the award raises the old question of the basis of award of damages in a case of breach of contract. That old question depends upon an equally hackneyed authority, the old and hackneyed case of Hadley v. Baxendale (1854) 9 Exch. 341 where Alderson, B, held atp.354:
“Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably either arising naturally, i.e. according to the usual course of things, from such breach of contract itself or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.” Per Nnaemeka-Agu, JSC.

The facts of the above cited case are similar to the facts in the instant case to the extent that there was a breach of contract. However, there is a distinguishing point. The aggrieved party in OKONGWU V. NNPC (SUPRA) was granted an opportunity to mitigate his loss by the offer to take back his employment, while the Respondent in the instant was not offered any opportunity by the Appellant to mitigate his loss. The law imposes a duty on the aggrieved party in a breach of contract to act reasonably in order to mitigate his loss. The question to ask here is – was the Respondent offered any opportunity to mitigate its loss which it refused? l find very instructive the contribution of my Lord, Karibi-Whyte, JSC (OBM) to the lead judgment inOKONGWU V. NNPC (SUPRA) thus;
“The concept of reasonableness is the fulcrum on which the decision whether the plaintiffs duty to mitigate his loss has been discharged is posited. At all material times, the question whether a person has acted reasonably in the particular circumstance is one of fact to be determined by the peculiar facts of the case in the circumstance. The burden of proving that

plaintiff has not acted reasonably in rejecting an offer of reinstatement under the conditions in which it was made is on the defendant who has made the offer; and also imposed the conditions. – SeeYetton v. EastwoodsFroy Ltd. (1966) 3 ALL E.R. 353 atp.365… I do not think the duty to mitigate losses has as its correlative the right of the other party to impose any conditions as alternative to his breach of contract. The duty to mitigate loss is that of a reasonable man acting reasonably in the circumstances of the case. The plaintiff is clearly not an underdog. He is not obliged to accept conditions which are both onerous and demonstrably intolerable in the name of mitigation of his loss – see Pilkington v. Wood (1953) 2 ALL E.R. 810.”
The burden lies with the Appellant to show that an offer was made to the Respondent to mitigate his loss but the Respondent failed to act reasonably. Whether or not the Respondent has failed to take a reasonable opportunity of mitigation of his loss is a question of fact depending upon the particular circumstances of each case. The burden of proving that the Respondent has failed to take such an opportunity is on the

Appellant and is a heavy one. See OKONGWU V. NNPC (SUPRA). Has the Appellant discharged this duty? Nothing has been placed before this Court by way of evidence to support the claim that the Appellant failed to mitigate his loss. The law stipulates that he who asserts must prove. The Appellant has failed, refused or neglected to attach the Record of the Proceedings before the Tribunal. The Records would have served as a guide to the Court and established the claim of the Appellant. The Court is not mandated or even allowed to go on a voyage of discovery to assist the Appellant to build its case where it has failed to do so. Litigation is serious business where guess work or fill in the blanks is not acceptable.
On the award of damages, the Tribunal awarded thus;
“Consequently, the Tribunal having found that there is a valid contract as between the parties, and that the claimant is entitled to payment for milestone 1, holds the Respondent liable for breach of the terms of the contract and liable in general damages to the claimant. The Tribunal assesses the quantum of general damages at the sum of 50,000.00 USD.”(See page 85 of the Records).

The assessment and award of damages is a discretionary power reposed in the trial Courts, in this case, the Tribunal. See AHMED & ORS. V. CBN (2012) LPELR – 9341 (SC) and BRITISH AIRWAYS V. ATOYEBI (2014) LPELR – 23120 (SC). This discretionary exercise would not ordinarily be interfered with unless where it is shown that it was not applied judiciously. See NEWBREED ORGANIZATION LTD. V. ERHOMOSELE (2006) LPELR – 1984 (SC) and ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY & ANOR. V. EKWENEM (2009) LPELR – 482 (SC). The instances where an exercise of such discretionary power will be interfered with by an Appellate Court were outlined in the case of IGHRERINIOVO V. S.C.C. NIGERIA LTD & ORS. (2013) LPELR – 20336 thus;
“It is now trite that an appellate Court does not ordinarily alter or interfere with an award of damages made by the lower Court except where the award is shown to be either manifestly too high or manifestly too low or where it was based on a wrong principle. The award of damages is at the discretion of the trial Court. An appellate Court will not interfere with an award of damages by a trial Court only because it

is inclined to make a different award. In order to justify interference with the trial Court’s award of damages, the appellate Court invariably must be satisfied that:-
(a) The trial Court had acted upon wrong principle of law or under a mistake of law.
(b) The award is arbitrary or perverse.
(c) There has been an element of wrong exercise of discretion in the award or
(d) Injustice could occur if the appeal Court does not interfere.
SeeA.S.E.SA v. Ekwenem (2009) 13 NWLR (Pt 1158) 410 SC; Odogu v. A.G. Federation (1996) 6 NWLR (Pt 456) 508 and The Shell Petroleum Development Company of Nigeria Ltd v. Chief G.B.A. Tiebo VII and 4 Ors NSCQLR Volume 22 (2005) 69.” Per Muhammed, JSC.

The Appellant’s second complaint from this issue is the interest on the award for money owed. The contract between the Parties was terminated by the Appellant since 13th January, 2011. It is only proper that a Party who has held unto the money belonging to another should pay compensation by way of interest for doing so. This is because no Party should be allowed to benefit from its own wrongdoing. I place reliance on the Apex Court decision in the

case of ENEKWE V. INTERNATIONAL MERCHANT BANK OF NIGERIA LTD. & ORS. (2006) LPELR – 1140 (SC), the facts of the case bear some semblance to the instant Appeal to the extent that both Appellants rather than pay up the money owed to the Respondent preferred to go from Court to Court in search of an escape route while chasing shadows. The facts of the case cited above are that the Appellant was the registered owner of plot No.3, Julius Bala Crescent, Legislators Quarters, Jos. The Appellant was also the Chairman and Managing Director of Crystal Star Associates and Company Limited. The plot was mortgaged to the 1st Respondent as collateral for a loan advanced to Crystal Star Associates and Company Limited. Between 1987 and 1990 the 1st Respondent, the mortgagee, made several attempts to realise their security. The first attempt was made between June and July 1987. The property was advertised for public auction because of the default on the part of the Appellant to redeem the mortgage. The 1st Respondent decided to sell the property. The Appellant quickly ran to Court to stop the sale and the suit which was assigned to Soluade, J. (OBM) by Uloko, C.J. (OBM) was

dismissed for want of diligent prosecution. The Appellant appealed that decision and the appeal is still pending till Judgment was delivered in this case by the Apex Court. The Appellant filed two motions in a fresh suit, one was on notice while the other ex-parte for an injunction against 1st Respondent from selling the property. The two motions came before Uloko, C.J. (OBM), although the suit pending before Soluade, J. (OBM), was neither reassigned nor withdrawn. On 23rd February, 1988, Uloko, C.J. (OBM), granted the interim injunction ex- parte. He made an order restraining the 1st Respondent from selling the property. The Chief Judge did not give a date for the hearing of the motion on notice. The High Court in the fresh suit dismissed the claim of the Appellant, struck out the counter-claims and held that the suit was an abuse of the Court process. On appeal, the Court of Appeal dismissed the appeal and cross-appeal. The Appellant appealed to the Supreme Court and in dismissing the appeal for lacking in merits, the Apex Court held that;
“In all the circumstances of the facts in respect of the case leading to this appeal, what is respectfully clear

to me and which should and ought to be a signal or an eye opener to any litigant who thinks he is clever and wants to be clever, is that the Latin maxim of “nulluscommodumpotest de in juriasuapropria” – “No one can gain advantage by his own wrong”, is a truism and it is a statement of fact. In other words, the law is that a party should not be allowed to benefit from his own wrong. Again, the Court should not allow itself, to be used as an instrument of “fraud”. See also the case of Adimora v. Ajufo & Ors (1988) 3 NWLR (Pt.80) 1; (1988) 6 SCNJ 81; Ogwuru v. Cooperative Bank of Eastern (Nig.) Ltd (1994) 8 NWLR (Pt 365) 685 and Ajibade (Mrs.) & Anor v. Madam Pedro & Anor (1992) 5 NWLR (Pt.241) 257; (1992) 6 SCNJ 44.” Per Ogbuagu, JSC.
In a bid to ensure that a Party who is in default does not continue to benefit from that default, the Apex Court in DIAMOND BANK LTD V PARTNERSHIP INVESTMENT COMPANY LTD (2009) 15 NWLR (PT. 1172) 67 held thus;
“It is also settled that the High Court, has an inherent power to make Orders even if not sought where such orders are “incidental” to the prayers sought… failure to claim interest in the writ of summons

or statement of Claim, will not preclude a successful plaintiff, from praying for and being awarded interest after judgment has been entered for an amount… the general rule, is that monetary judgment, attracts appropriate interest even where none is claimed.” Per Ogbuagu, JSC.
As costs follow events, so does interest follow monetary judgments. Moreover, the Respondent in the instant appeal claimed interest on the award at the Arbitral Tribunal. The decision in AFRICAN INTERNATIONAL BANK LTD V. INTEGRATED DIMENSIONAL SYSTEM LTD & ORS. (2012) LPELR – 9710 (SC) is instructive in this instance thus;
“It is note-worthy that in this case, the Cross Respondent claimed prejudgment interest and same was awarded in reduction.
It has been held in effect “that in purely commercial transactions a party who holds on to the money of another and keeps it for a long time without any justification and thus deprives that other of the use of funds for the period should be liable to pay compensation by way of interests.” See; Nigerian General Superintendence Co. Ltd. vs Nigeria Ports Authority (1990) 1 NWLR (Pt.129) 71, Adeyemi V. Lan & Baker (Nig.) Ltd

(2000) 7 NWLR (Pt.663) 33.” Per Ariwoola, JSC.
The Appellant has failed, refused or neglected to proffer any justification for holding on to the money owed to the Respondent for the services rendered to the Appellant. The Respondent is therefore entitled to compensation by way of interest for being kept out of its money for so long and without justification.

The award by the Tribunal directs the Appellant to pay the Respondent the following;
a) The sum of USD$1,822,045.80 (One Million, Eight Hundred and Twenty Two Thousand and Forty Five United States Dollars, Eighty Cents) in settlement of the Respondent’s claim under milestone 1.
b) The sum of USD$50,000 (Fifty Thousand United States Dollars) as general damages.
c) Interest on the sum of USD$1,822,045.80 (One Million, Eight Hundred and Twenty Two Thousand and Forty Five United States Dollars, Eighty Cents) assessed at 10% per annum with effect from the 15th day of February, 2011 until the date of this award which is the sum of USD$429,803.05 (Four Hundred and Twenty Nine Thousand, Eight Hundred and Three United States Dollars, Five Cents).
The failure to pay the total

award sum within 3 months from the date of this final award will attract interest at the rate of 8% per annum until payment is made.”

I find no justification to interfere with the award by the Tribunal which was affirmed by the learned trial Court.
This appeal is hereby dismissed in entirety as lacking in merit.
The Parties shall bear their respective costs.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege to read in draft the lead judgment delivered by my learned brother, Monica Bolna’an Dongban-Mensem, HPCA.

I am in total agreement with the reasoning and conclusion, lucidly reached therein. In support of the position therein, one wants to re-echo that the Courts have since moved away from the days of technicalities. The pursuit has therefore been to do substantial justice in the overall situation as was done by the Tribunal and Court below and is being upheld by this Court.

The error or tardiness of Counsel where special damages was written instead of claims under Milestone 1 was therefore not visited on the litigant as substantial justice was done and indeed to all concerned in the case.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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I also dismiss the appeal as it lacks merit and I make no order as to costs.

MOHAMMED MUSTAPHA, J.C.A.: I have had the benefit of reading in draft the lead judgment just delivered by my learned brother; Monica Bolna’an Dongban-Mensem, PCA.

I agree with the reasoning and adopt the conclusion and orders arrived therein. The appeal is dismissed and I abide by the consequential orders made therein.

Appearances:

OLUWASEUN ALABI, ESQ., with him, CHARLES OPEKE, ESQ. For Appellant(s)

A. EZE, ESQ. For Respondent(s)

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