BIMBA AGRO LIVESTOCK COMPANY LIMITED v. LANDMARK UNIVERSITY (2019)

BIMBA AGRO LIVESTOCK COMPANY LIMITED v. LANDMARK UNIVERSITY

(2019)LCN/13378(CA)

In The Court of Appeal of Nigeria

On Thursday, the 30th day of May, 2019

CA/IL/144/2017

RATIO

DAMAGES: DEFINITION

The term damages invariably denote money claimed by, or ordered to be paid to, a person as compensation for loss or injury. I think it was Frank Gahan who once aptly postulated:
Damages are the sum of money which a person wronged is entitled to receive from the wrong doer as compensation for the wrong.?
See THE LAW OF DAMAGES, (1936) @ 1.PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

DAMAGES: THE PRINCIPLE GUDING THE GRANT OF DAMAGES BY COURTS

The principle guiding the Courts in awarding or refusing damages is not at all far-fetched. It has been enunciated and reiterated in a plethora of formidable authorities. In the locus classicus, BALOGUN VS. NATIONAL BANK NIGERIA LIMITED (1978) LPELR ? 723 (SC), the Apex Court aptly postulated:
(In) an action for breach of contract as this is, damages are not at large and a plaintiff must always plead and prove his actual loss otherwise he is entitled to nominal damages only. Two exceptions to this general rule are known. One is an action for breach of contracts of promise to marry and the other where a trader who is in funds at his bank has cheque dishonoured wrongfully.
Per Idigbe, JSC @ 10 -1 1 paragraphs G A.PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

DAMAGES: PURPOSE OF GRANTING DAMAGES
The fundamental object of awarding damages for breach of contract is to place the injured party, so far as money can do it, in the same position as if the contract had been strictly performed. In other words, the injured party ought not to get more in damages than the loss which he has suffered consequent upon the breach of the contract. As a matter of fact, the injured party may even sometimes get less than the loss he has suffered (incurred) under the exclusion principle of ?REMOTENESS OF DAMAGES, as interestingly laid down in HADLEY VS. BAXENDALE (1854) 9 EXCH. 341, cited with approval by the Apex Court in UNIVERSAL VULCANIZING (NIGERIA) LIMITED VS. IJESHA UNITED TRADING AND TRANSPORT (1992) LPELR 3415 (SC) @ 38 39 G B. See also KOUFOS VS. C. CZARNIKOW LIMITED (The Heron II) (1969) 1 AC 350; H. L. COTTRILL VS. S & L BUILDING SOCIETY (1960) 1 WLR 753.PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

DAMAGES IN A CASE OF BREACH OF CONTRACT ARE SELF-IMPOSED
Fundamentally, damages in a case of breach of contract are self-imposed, in the sense that the correct basis for their award upon the breach is what was reasonably within the contemplation of the parties at the material time the contract was entered into. See HADLEY VS. BAXENDALE (Supra); ECONOMIC EXPORTS LIMITED VS. ODULOLA (1959) WRNLR 239; UNION BEVERAGES VS. OWOLABI (1988) 2 NWLR (Pt. 68) 128 ? per Nnaemeka, JSC @ 12 paragraphs F A.PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

CONTRACT: THE DUTY OF COURTS WHERE THERE IS A CLAIM FOR BREACH OF CONTRACT
In all cases of breach of contract, the Court has the onerous duty to base the award upon the loss naturally flowing from the breach. As authoritatively, held by the Apex Court:
[I]t is the duty of the Court to apply the legal method of assessment to any qualification and clearly not to take any pre-estimated determination as if the damages were special and so provided and so provided for in the contract.
See SWISS NIGERIAN WOOD INDUSTRIES LIMITED VS. BOGO (1970) LPELR ? 3128 (SC), per Coker, JSC @ 14 paragraphs A – C.PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

DAMAGES: HOW TO MEASURE DAMAGES

Indeed, the law regarding the measure of damages is still as it was ever since the famous dictum was enunciated in the case of HADLEY VS. BAXENDALE (1854) 9 EXCH. 354; referred to with approval by the Supreme Court in SWISS NIGERIAN WOOD INDUSTRIES LIMITED VS. BOGO (Supra), wherein it was stated:
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 be considered 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 IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

SPECIAL DAMAGES: WHEN SPECIAL DAMAGES CAN BE CLAIMED
In the contemplation of such a loss, there ought not to be claims which are merely speculative or sentimental, unless they are specially provided for by the terms of the contract. As aptly postulated by the Apex Court:
It is only in this connection that damages can be properly described as special in the conception of contractual awards and it must be borne in mind that damages normally recoverable are based on the normal and presumed consequences of the breach complained of. See KOUFUS VS. C.CZARNIKOW LIMITED. Thus the terms ?general? and special damages are normally inept in categorization of damages for the purpose of awards in cases of breach of contract. We have had occasion to point this out before: See AGBAJE VS. NATIONAL MOTORS LIMITED; and we must make that apart from damages naturally resulting from the breach no other form of general damages can be contemplated.
See SWISS NIGERIAN WOOD IND. LTD VS. BOGO (Supra) Per Coker, JSC @ 9 – 10 paragraphs.PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

DAMAGES: HOW DAMAGES ARE ASSESSED

The doctrine of assessment of damages for breach of contract generally is restitutio in integrum ? that is the plaintiff shall be restored as far as money can provide it, into the correct position he would have been if the breach had not occurred. Thus, it is not meant to give the plaintiff a wind-mill or jack-pot on claims for damages. See OKONGWU VS. NNPC (1989) 4 NWLR (Pt. 115) 296 @ 309; NPMB VS. ADEWUNMI (1972) NSCC 662 @ 665; IFETA VS. SPDC NIGERIA LIMITED (2006) 8 NWLR ? (Pt. 983) 585 @ 33 paragraphs B-D.PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

JUSTICES

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria

BALKISU BELLO ALIYU Justice of The Court of Appeal of Nigeria

Between

BIMBA AGRO LIVESTOCK COMPANY LIMITED Appellant(s)

AND

LANDMARK UNIVERSITY Respondent(s)

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): The instant appeal is consequent upon the judgment of the Kwara State High Court, delivered on October 11, 2017 in Suit No. KWS/OM/14/2014. By the judgment in question, the Court below Coram T. S. Umar, J.; dismissed the Appellant?s claim, and granted the Respondent?s counter claim.

BACKGROUND FACTS
The Appellant is a company incorporated under the Laws of the Federal Republic of Nigeria duly engaged in poultry farming, production of animal feeds, and the supply of poultry equipment. Contrariwise, the Respondent is an institution of Higher Learning and Research in Agriculture, inclusive of poultry.

On September 17, 2014, the Appellant instituted the said suit vide a Writ of Summons in the Court below against the Respondent. By the Statement of Claim, filed along with the Writ of Summons, the Appellant claimed against the Respondent the following reliefs:
i. The sum of N4,895,966.50 (Four Million, Eight Hundred and Ninety Five Thousand, Nine Hundred and Sixty Six Naira, Fifty Kobo) only being the costs incurred for installation expenditure,

procurement of the eff collector, freight, clearing expenditure and losses incurred due to the exchange rate differential in procuring forex for the transaction.
ii. Interest on the said sum at the rate of 22% per annum from 18 March, 2013 until judgment is given and at the rate of 10% per annum from date of judgment until final liquidation of the judgment sum.
iii. The sum of N1,000,000.00 (One Million Naira) only being damages for breach of contract.
iv. The sum of N1,000,000.00 (One Million Naira) only being the cost of this suit.

By the Statement of Defence thereof, the Respondent denied in toto the Appellant?s claim and urged the Court below to dismiss same. Not unnaturally, the Respondent equally counter claimed against the Appellant, viz:
The Defendant hereby counter-claim as follows:
a) The sum of N2,641,640.00 being the cost incurred as the shortfall in the sales of 14,146 birds for N10,089,000.760 as against N12,731,400.00 if it was sold for N900 per bird at the actual market value.
b) The sum of N6,078,600.00 being the cost of 6,754 birds that died due to overcrowding in the local cage/pen (at the rate of

N900 per bird) in which the birds were raised in anticipation of the delivery of the automated cage on schedule.
c) The sum of One Million (N1,000,000.00) being the cost of installation of the cages by another company.
d) The sum of Fifty Million Naira (N50,000,000.00) being damages for breach of contract.
e) The sum of Two Million (N2,000,000.00) for the cost of litigation.

Pleadings having been filed and exchanged by the respective parties, the suit eventually proceeded to trial. At the end of which, the vexed judgment of the Court was delivered on the said October 11, 2017 to the conclusive effect:
There is no dispute that the contract for the supply of cages was to be executed between 16 ? 20 weeks. The cages were not supplied until about 52 weeks. The cages that were supplied were not the once (sic) initially ordered by the defendant. The one that was supplied after 52 weeks was accepted and infact installed by the defendant however, complained that it was a fabricated one. The defendant initiated criminal proceedings against the claimant and as a result of which the claimant brought this action against the defendant.<br< p=””

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… I therefore prefer the evidence of the defendant which is more direct and positive. I am of the view that even though the defendant has accepted the supply after 52 weeks the defendant can claim damages. See UDOM VS. MICHELETTI AND SONS LIMITED (1997) 8 NWLR (Pt. 516) 187 @ 201. The defendant cannot be said to have waived her right.
A counter claim being an independent action; it must be proved by the defendant/counter claimant no matter the weakness of the case of the claimant/defendant. See JERIC NIGERIA LIMITED VS. UNION BANK OF NIGERIA (2000) 12 SCNJ 184.
The defendant has proved in the supply of cages? The supply was not done according to the time specification which resulted to sudden disposal of the birds at a loss and death of some of them as a result of overcrowding which occasioned financial loss to the defendant?.
The defendant has therefore proved its counter claim against the claimant. I therefore grant the claims of the defendant save the claim for cost of litigation. I find the claims of the claimant not proved and it is accordingly dismissed.

Thus, dissatisfied with the said decision, the

Appellant filed the Notice of Appeal thereof, thereby urging this Court to allow the appeal, set aside the judgment in question, and accordingly grant the reliefs sought by the Appellant vide the Statement of Claim thereof.

On October 2, 2018, the Appellant filed an amended Notice of Appeal with leave of Court. On March 4, 2019, when the appeal came up for hearing, the learned counsel addressed the Court and adopted the respective briefs of argument thereof. Thus resulting in reserving judgment. The Appellant?s brief, settled by Chief R. O. Balogun and deemed properly filed on 14/01/2019, spans a total of 35 pages. At pages 3 ? 4 thereof, six issues have been canvassed:
a. Whether, in the face of evidence adduced before the lower Court, the lower Court was correct in holding that Ms. Monica Akpanke is not a representative of the Respondent nor authorized to receive correspondence on behalf of the Respondent? (Ground 7 of the Amended Notice of Appeal).
b. Whether, upon the facts and evidence led in this case, the decision of the lower Court that the Appellant did not prove its claim is justified? (Ground 2 of the Amended Notice of

Appeal).
c. Whether the lower Court is correct in adjudging the Appellant liable for non-adherence with the product delivery timeline, given that the evidence adduced, which the lower Court admitted in evidence, shows clearly that (i) the delivery timeline was not a strict requirement of the supply contract having regard to the uncertainties in importation business; and (ii) in any event, the delays in contract performance were due to ‘acts of God’ and events beyond the human control of the parties? (Ground 8 & 9 of the Amended Notice of Appeal). (sic)
d. Whether, having found that the Respondent accepted the cages at week 52 notwithstanding the delays and there being no complaint from the Respondent as at the date the cages were duly accepted knowing full well the extra-ordinary circumstances giving rise to the delay, the lower Court was correct in proceeding to award damages in favour of the Respondent on ground of delayed performance of the contract? (Ground 6 of the Amended Notice of Appeal).
e. Whether, upon a proper consideration of the Respondent’s counterclaim, the lower Court rightly found that the Respondent proved its counter

claim against the Appellant. (Ground 4 & 5 of the Amended Notice of Appeal). (sic)
f. Whether, the lower Court was right in awarding the sum of N50,000,000.00 (Fifty Million Naira) as general damages for breach of contract in favour of the Respondent? (Ground 1 of the Amended Notice of Appeal).

The Issue No. 1 is extensively argued at pages 4 ? 9 of the brief in the main. In the main, it is submitted that the evidence adduced before the Court below clearly show that (i) the Appellant was under the impression that Ms. Monica was the Respondent?s Procurement Officer and representative; (ii) The Respondent was aware that the Appellant was dealing with it through Ms. Monica; and (iii) The Respondent did not (sic) nothing to correct this impression, assuming this impression was in fact false as Respondent alleges.
?
Further submitted, that in the face of the overwhelming evidence that Dr. Afolayan could not have been telling the truth when he stated under cross examination that he only became aware at the later stage of the contract that Ms. Monica was fraudulently representing herself as a member of the Respondent. Therefore, the

Court below ought to have disbelieved the Respondent?s evidence on this point, as it was at variance with the overwhelming evidence before the Court.
The Court is urged to so hold.

The Issue No. 2 is argued at pages 9 ? 17 of the brief, to the effect that the Court below failed to give proper consideration to the contents of certain documents/e-mails and pictorial materials admitted in evidence.

It was submitted, that in the face of the express provision of the proforma invoice and the Respondent?s own admission, the Court below should have had no difficulty in concluding that:
i. The proforma invoice did not include installation works; and
ii. The Appellant did perform the installation works or at the very least incur costs in the course of installing the Respondent?s cages.

Further submitted, that in the absence of evidence, the Court below ought to have reached the conclusion that the installation was performed by the Appellant in full. And that the Respondent?s assertion that it engaged FACO to conclude the works was merely an afterthought since no shred of evidence was introduced to support

that allegation.

Its posited that the terms and scope of the contract as stated in the proforma invoice and the Appellant?s letter of request for the cost of additional materials, the cost of additional sum for the installation were sufficient to grant the Appellant?s claims. Therefore, failure to evaluate these material pieces of evidence in ultimately determining the dispute led to a grave error and a substantial miscarriage of justice.
The Court is urged to so hold.

The Issue No. 3 is extensively argued at pages 17 ? 25, of the brief. In a nutshell, it is submitted that it is inconceivable that the Court below proceeded to adjudge the Appellant liable for delays when (i) the evidence adduced show clearly that the delays were not due to the Appellant?s fault but one to events beyond the Appellant?s control; and (ii) the Respondent in any event had waived its right to insist on the timely performance of the contract, having raised no objection to Appellant?s letter of November 28, 2012. On this score, the Court is urged upon to allow the appeal and set aside the finding of the Court below adjudging the

Appellant liable for delays. See STANDARD ENGINEERING COMPANY LIMITED VS. NBC, DAVIS CONTRACTORS LIMITED VS. FAREHAM UDC (1956) AC 696; TAYLOR VS. CALDWELL (1861 ? 73) ALL ER 24 @ 27; SECTIONS 7 & 8 of the Sale of Goods Act, 1893; MAZIN ENGINEERING LIMITED VS. TOWER ALUMINIUM (1993) 5 NWLR (Pt. 295) 526 @ 534.

It is postulated that the snow forms which occurred in Europe and delayed the delivery of the cages was no fault of the parties to the contract, and as such, amounts to frustration. That it is trite, that a contract is frustrated and further performance is excused, when the frustration is without the fault of either party. The Court is urged to so hold.

The Issue No. 4 is argued at pages 26 ? 28 of the brief, to the effect that the finding of the Court below at page 21 of the vexed judgment (page 256, lines 16 ? 19 of the record), is materially contradictory and goes against the principle of waiver. The case of A.G. BENDEL STATE VS. UBA (1986) 4 NWLR (Pt. 37) 547, was cited, to the effect that once a party has slept over his right, he is estopped from enforcing same.

The Respondents Statement of Defence (pages

33 49 of the record) has been alluded to, to the effect that the Respondent never complained about the late delivery of the cages. See ARIORI VS. ELEMO (1983) 1 SCNLR 1 @ 13; ETUBOM EKPO OKON ABASI VS. ETUBOM (DR.) ANTHONY ASUQUO ANI (2013) LPELR ? 21405 (CA); ENGLISH EXPORTERS (LONDON) VS. S. A. AYANDA, SUIT NO. SC. 305/70 (MARCH 21, 1973) CASEBOOK @ 87.
The Court is urged to so hold and allow the appeal.

The Issue No. 5 is argued at pages 28 ? 31, to the effect that the Respondent did not strictly prove reliefs a, b and c during the trial of the case. It is submitted that the Court below did not fully appreciate the nature of the Respondent?s claims and the legal issues arising from the proceedings before making a blanket pronouncement on the Respondent?s reliefs.

Further submitted, that the Court below awarded the entirety of the Respondent?s reliefs merely on the Respondent?s reliefs ?say so? without averting its mind to the evidence placed. SeeHADLEY VS. BAXENDALE (1854) 9 EXCH. 341; BALOGUN VS. NBN (1978) 3 SC 11.
The Court is urged to so hold.

The Issue No. 6 is argued at

pages 31 34 of the brief, to the effect that the judgment of the Court below amounts to a deviation from the established principles of law in awarding damages in cases of breach of contract. That there were no pleadings with particulars or evidence led by the Respondent to justify the award of N50 Million as damages. See IJEBU ODE LOCAL GOVERNMENT AREA VS. ADEDEJI (1991) 1 NWLR (Pt. 166) 136 SC; OSUJI VS. ISIOCHA (1989) 3 NWLR (Pt. 111) 623 SC; EMIRATES AIRLINES VS. NGONADI (NO. 1) (2014) NWLR (Pt. 1413) 500 E ? F; PZ AND PZ COMPANY VS. OGEDENGBE (1972) 1 ALL NLR 206 SC; BRITISH AIRWAYS VS. ATOYEBI (2014) 13 NWLR (Pt. 1424) 253; TSOKWA MOTORS (NIGERIA) LIMITED VS. UBA LIMITED (2008) 2 NLNLR (Pt. 1071) 347.

It is argued, that the Court below failed wholly to consider the established principles of law in awarding damages. That the general damages of N50 Million awarded to the Respondent was improper, as it was not within the contemplation of the parties at the time the contract was made and it amounts to a double compensation. SeeMTN (NIGERIA) COMMUNICATION LIMITED VS. SADIKU (2014) 17 NWLR (Pt. 1436) @ 419 ? 420.
The Court is urged

to so hold.

Conclusively, the Court is urged to allow the appeal and set aside the vexed decision of the Court below.

Contrariwise, the Respondent?s brief, settled by O. M. Obaro Esq.; spans a total of 31 pages. Remarkably, the six Issues raised by the Appellant have been adopted by the Respondent at page 5 of the brief thereof.

The Issue No. 1 is argued at pages 6 ? 9 of the Respondent?s brief, to the effect that the observation of the Appellant that Ms. Monica Akpanke is a staff/representative of the Respondent, has not been proved.

It is submitted, that the Appellant?s admission (pages 224 ? 225 of the record) are admissions against interest, which is the best form of evidence to be used against the Appellant. See NNADOZIE VS. OMESU (1996) 5 NWLR (Pt. 446) 110 @ 125 paragraph E.

Further submitted, that Monica is a staff of the Appellant and not of the Appellant. Thats why a criminal action was instituted against both PW1 and Monica which was the motive for instituting the present action by the Appellant. And that the Court cannot be used as an instrument of fraud and that a party cannot be

allowed to benefit from his own wrong. See KWAJAFFA VS. BANK OF THE NORTH (Pt. 2004) ALL FWLR (Pt. 215) 22.
The Court is urged to so hold and resolve the Issue No. 1 against the Appellant.

The Issue No. 2 is argued at pages 9 ? 15 of the brief, to the effect that the Court below was indeed right to have held that the Appellant was unable to prove her claim and thus dismissing same. See ADESANYA VS. ADEROUNMU (2000) 2 SC (Pt. 1) 18 @ 125; YUSUF VS. ADEGOKE (2007) 4 SC (Pt. 1) 120; OWOADE VS. OMITOLA (1988) 5 SC 1 @ 19.

It was argued, that the Court below was right in its inference that the sum in the proforma invoice represents both supply and installation. That the Court below enjoys unbridled licence of law to draw inference from a proved fact or evidence. SeeAKPAN VS. BOB (2010) 17 NWLR (Pt. 1223) 421; AHMED VS. CBN (2010) 11 NWLR (Pt. 1365) 352; 372 A ? B.

Further argued, that the Appellant gave contradictory evidence as to the alleged installation by her. That the evidence of PW1 is quite contradictory with itself on one part and also contradictory with that of the PW2. The extent that the Court below acknowledged on page

254 of the record that the material inconsistencies in the evidence of PW1 and PW2 cannot be relied upon.

Finally submitted on the issue, that the Appellant has failed to prove her claim. Thus, the Court below was right in dismissing same. The Court is urged to resolve the Issue No. 2 in favour of the Respondent.

The Issue No. 3 is argued at pages 15 ? 20 of the brief. Paragraph 6.1 at page 16 of the brief deals with preliminary issues. It is submitted, that the Court has inherent powers under the Court of Appeal Rules to strike out the Appellants grounds 8 and 9 suo motu because they are repetitive and argumentative contrary to Order 7 Rule 3 of the Court of Appeal Rules 2016. See AMICO CONSTRUCTION COMPANY LIMITED VS. ACTEC INTERNATIONAL LIMITED (2015) 17 NWLR (Pt. 1487) 146 @ 162 paragraphs B ? C; IKPEAZU VS. OTTI (2016) 8 NWLR (Pt. 1513) 38 @ 95 paragraphs A ? DW.

Alternatively, it is submitted on Issue No. 3, that the Court below was right to adjudge the reasons proffered by the Appellant as crooked, woody and incongruous and thus unreliable. See FATUGA VS. AINA (2008) FWLR (Pt. 398) @ 400 D ? E; WHYTE VS.JACK ?

(1996) 2 NWLR (Pt. 431) 407 et al.

It was submitted, that the period of 16 ? 20 weeks as promised by the Appellant in Exhibit 3, is sacrosanct which she cannot alleviate therefrom. Because the Respondent had been made to believe thereon, paid promptly and started raising poultry birds in anticipation. Thus, the Appellant by her conduct is estopped deviating from the content of proforma invoice which stated 16 ? 20 weeks as the delivery period. The Court is urged to so hold. See SILAS OKOYE OKONKWO VS. KPAJIE (1992) LPELR ? 2483 (SC); (1992) 2 NWLR (Pt. 226) 633 @ 655 E ? G.

It was posited, that it does not lie in the Appellant?s mouth to say that the contract was frustrated. It is only the Court that can reach such a conclusion. See AIICO INSURANCE PLC VS. ADDAX PETROLEUM DEVELOPMENT COMPANY LIMITED (2015) 6 NWLR (Pt. 1456) 597 @ 615 D; OBAYUWANA VS. GOVERNOR, BENDEL STATE (1982) 4 NWLR 96.
The Court is urged to resolve the Issue No. 3 against the Appellant.

The Issue No. 4 is argued at pages 20 ? of the brief, to the effect that the Respondent paid 70% of the contract sum within one week of the

issuance of the proforma invoice (Exhibit 3) by the Appellant and payment thereof and was acknowledged on 28/11/2011 (Exhibit 4). And the balance was paid subsequently before the 6th week. Thus argued by the Respondent, the issue of ratification would have arisen if the balance was paid upon delivery of the poultry cages. See UDOM VS. MICHELETTI AND SONS LIMITED (1997) 8 NLWR (Pt. 526) 187 @ 201; Section 112 of the Sale of Goods Act, 1979.
It was submitted, that the Respondent did not waive her right of election to treat the breach as a breach of warranty by keeping the contract alive, which does not in any way affect her damages.

The Court is urged so hold and resolve the Issue No. 4 in favour of the Respondent against the Appellant.

The Issue No. 5 is argued at pages 23 ? 24 of the brief, to the effect that the oral testimony of the Respondent at the Court below was unshaken, it was direct and quite unequivocal. Therefore, the Court below was right to grant the counter claim thereof based on the uncontradicted and unchallenged evidence.
The Court is urged to resolve the Issue No. 5 in favour of the Respondent.

Lastly, the Issue No. 6 is extensively argued at pages 26 ? 30 of the brief. In the main, it is submitted that in the instant case, the damages so awarded against the Appellant was indeed very apt. The Court is urged not to sanction it.
The Court is urged to resolve the Issue No. 6 in the Respondent?s favour.

On the whole, the Court is urged to dismiss the appeal and affirm the judgment of the Court below.

In reaction to the Respondent?s brief, the Appellant filed a Reply brief on 20/02/2019 thereby once again urging upon the Court to allow the appeal, set aside the decision of the Court below and grant the reliefs sought in the Notice of Appeal.

I have accorded an ample consideration upon the nature and circumstances surrounding the instant appeal, the submissions of the learned counsel contained in the respective briefs of argument thereof vis–vis the record of appeal, as a whole. I am very much appreciative of the fact that parties are ad idem that the six Issues canvassed in the respective briefs thereof are germane to the grounds of the Notice of Appeal. Thus, I hereby adopt same seriatim for the ultimate determination of the

appeal, anon.

ISSUE NO. 1
The first issue raises the vexed question of whether in the face of evidence adduced at the trial, the Court below was correct in holding that Ms Monica Akpanke was not a representative of the Respondent nor authorized to receive correspondence on the Respondent?s behalf. The first issue is distilled from Ground 7 of the Notice of Appeal.

The Appellants argument on the issue is that it was led to believe that Ms Monica was a staff or the very least a representative of the Respondent. That it was based on this premise that correspondence exchanged between the parties were forwarded to Ms Monica in question on the assumption that she duly represented the Respondent?s interest. Contrariwise, however, the Respondent vehemently denied that Ms Monica was its staff or agent. The Respondent avers in paragraphs 9 and 10 of the Statement of Defence (pages 33 ? 40 of the main record) thus:
(9) The Defendant denies paragraph 9 and answered that the Defendant is not aware of any correspondence between the claimant and the said Miss Monica Akpanke as she (Monica Akpanke) is neither a staff nor agent of

the Defendant but rather ran errands for and brought information from the claimant to the Defendant.
(10) In furtherance to paragraph 9 above, the Defendant states that she is not expected to pay for any change(s) or fees not included in the proforma which was generated by the claimant after the contract was entered into by both parties and the entire contract sum as shown on the proforma has been paid.

Likewise, in line with paragraphs (9) and (10) of the Statement of Defence, the DW1 stated in paragraph (10) of the Statement of Oath thereof thus:
10. That I know for a fact that the defendant is not aware of any correspondence between the claimant and the said Miss Monica Akpanke as she (Monica Akpanke) is neither a staff nor agent of the Defendant but rather ran errands for and brought information from the claimant to the Defendant.

Interestingly, the actual status of Ms Monica Akpanke in question has been clarified by the PW1, in the person of Dr. Adebayo Odunowo, who testified under cross examination at pages 224 ? 225 of the Record. Hear him:
Monica was brought to my office around July 2012 when she came she introduced

herself as the representative of Winners Chapel, Landmark University and that she has been mandated to look for suppliers for Battery Cage System.
The monetary worth of the transaction between me and Landmark University is N27 Million, Monica did not show me Identity card.

The PW1 is characteristically the alter ego of the Appellant. As aptly posited by the Respondent?s learned counsel, the evidence of the PW1 duly elicited under cross examination undoubtedly has the same force of law as an examination in chief. See PIUS VS. THE STATE (2015) 7 NWLR (Pt. 1459) @ 628.

A critical, albeit dispassionate analytical deduction from the foregoing testimony of the PW1 under cross examination would reveal:
i. that Monica Akpanke was brought to the Appellant by an undisclosed person, despite the fact that the contract was between the respective parties who are corporate entities.
ii. Monica was brought to the Appellant in ?July 2012?, yet the contract was awarded by the Respondent way back in November 2011.
iii. It is inconceivable for the said Monica to introduce herself as a representative of Winners Chapel, Landmark

University, and mandated to look for suppliers for Battery Cage System 8 months after the contract had been awarded to the Appellant.

However, the PW1 has admitted under cross examination at page 225 of the Record to the following effect:
Monica did not show me I.D. Card. The time Monica came, price of the contract was not yet determined, that was why I dealt with her? I will be shocked because she collected all the documents of the University from me and they are to respond. She is the go between our company and the Defendant.

There is every cogent reason for me to uphold the Respondent?s submission, to the effect that all the foregoing admissions by the PW1 constitute the best form of evidence militating against the Appellant. See NNADOZIE VS. OMESU (1996) 5 NWLR (Pt. 446) 110 @ 125 paragraph E;OJIEGBE VS. OKWARANYIA (1962) ALL NWLR (Pt. 4) 604.

It is obvious from the evidence on record that the contract was strictly between the two parties, as corporate entities. There is no iota of evidence that the Respondent played any role at all in introducing the said Monica Akpanke to the Appellant. Not surprisingly, although the

Appellant tried to rely on the e-mails sent to Monica, the PW1 has admitted at page 225 last paragraph of the Record, to the effect that none of such e-mails had ever been acknowledged by the Respondent:
There was no time Landmark University replied any of the E-mails.”

Whats more, under cross examination, at pages 228 – 229 of the Record, the DW1 unequivocally denied that Monica Akpanke was the Respondent?s staff:
Miss Monica Akpanke does (sic) not have authority to act for the University. I am not aware of any communication between Mrs. (sic) Monica and Bimba Exhibit A15 and A10 it was later I was aware Monica was fraudulently representing herself as a member of University. She has no appointment letter she was fronting for the company. It was when we went to prototype of the case at Ogun State, it was the knowledge of the company, Monica came to represent the company.

Not surprisingly, being aware of the criminal case instituted against the PW1 and the said Monica Akpanke, the Appellant became motivated to institute the instant civil case at the Court below with a view to stalling the eventual criminal trial for

cheating and fraud. As aptly postulated by the Respondent?s learned counsel, it?s the law that Court cannot be used as an instrument of fraud and a party cannot be allowed to benefit from his own wrong. See KWAJAFFA VS. BANK OF THE NORTH(Pt. 2004) ALL FWLR (Pt. 215) 22.

I am not unmindful of the Appellant?s submission in paragraph 9 at page 5 of the brief thereof, regarding the Respondent?s purported admission in paragraph 10 of the Witness Statement on Oath at page 44 of the Record:
10. That I know for a fact that the defendant is not aware of any correspondence between the claimant and the said Miss Monica Akpanke as she (Monica Akpanke) is neither a staff nor agent of the Defendant but rather ran errands for and brought information from Claimant to the Defendant.

Indeed, the doctrine is well settled, that in civil cases the onus of proof squarely lies upon the party who alleges the existence or non-existence of a fact on the balance of probability or preponderance of evidence. See Sections 131, 132, 133, 136, and 138 of the Evidence Act 2011 (supra); AKANDE VS. ADISA (2012) 15 NWLR (Pt. 1324) 538 @ 565; et al.

As alluded to above, the said Miss Monica Akpanke was brought to the Respondent by an undisclosed person in July 2012. That was exactly 8 months after the contract was awarded to the Appellant by the Respondent. The Respondent has not admitted the said Miss Monica Akpanke ever brought any correspondence/mail or letter thereto from the Appellant.

In the circumstance, the answer to the first issue ought to be in the positive, and it is hereby resolved against the Appellant.

ISSUE NO. 2
The second issue raises the question of whether upon the facts and evidence led in this case, the decision of the lower Court that the Appellant did not prove its claim is justified. (Ground 2 of the Amended Notice of Appeal).

As alluded to above, the Appellant?s argument is that the Court below failed to give proper consideration to the contents of certain documents, e-mails and pictorial materials admitted in evidence in the course of the trial of the Suit. Allegedly, these evidential materials were absolutely crucial and vital to the determination of the Appellant?s claims. The relevant and material pieces of evidence which the Court allegedly

ignored are:
a) The e-mail dated February 8, 2013.
b) The letter dated March 12, 2013 titled: Re: Supply of FULL 4 TIER AUTOMATED CAGE SYSTEM ? EXHIBIT 1.
c) The proforma invoice dated November 21, 2013 ? Exhibit 3.
d) Pictures ? Exhibits 28A ? 28G.

Instructively, in the course of evaluating the evidence of the respective parties, the Court below serially alluded to the 33 Exhibits tendered by the Appellant vide the PW1. That was at pages 239 ? 240 of the Record. At page 251 of the record, the Court below found to the effect:
There is no doubt that there is a valid contract of sale of property existed between the claimant and the defendant which was to be supplied within 16 ? 20 weeks. The defendant paid the contract sum in full despite that the supply was not done on till 52 weeks after. There was no evidence before me that the defendant terminated the contract. The property was supplied and the defendant even stated a company by name FACCO was invited to install the battery cages.
?
The evidence on record is to the obvious fact that the PW1 admitted that the instant matter was instituted

as a reaction to the criminal case filed by the Respondent against him. The PW1 gave different reasons for the delay in supplying the Battery Cages. One, that the delay was because of cancellation of letter of credit. Two, that it was as a result of Boko Haram activities. Three, that the product got lost in transit.

The PW1 testified to the effect that he did not give notice of demand for the cost of installation and Cage Installation. In another breath, he stated there was actually a letter of demand for Case Installation but there was no letter of demand for installation. See paragraph IV of Additional statement on Oath and paragraph 18. PW1 stated that the installation was done for months ? November 2012 ? February 2013.

However, under cross examination, the PW1 stated that the installation was for 20 days. And that he charged N750,000.00 for the installation and that they spent 21 or 22 days.

Thus, in consequence of the evaluation of the evidence adduced at the trial, the Court below found at page 254 of the record:
There are clear material inconsistencies in the evidence of PW1 and PW2 which cannot be relied upon.

The incongruous woody and crooked evidence of the witnesses highlighted cannot be relied upon. The correspondences were directed by the claimant to Miss Monica Akpanke who is not known to be a staff of the defendants. Exhibits 28A ? 28G, the pictures allegedly taken to show the installation of the cages do not convey to me as such and cannot fill the gap that the installation was done by the claimant. The claimant also made admissions against interest.

It was equally the finding of the Court below at pages 255 ? 256 of the Record, that:
There was no dispute that the contract for the supply of cases was to be executed between 16 ? 20 weeks. The cages were not supplied until about 52 weeks. The cages that were supplied were not the once (sic) initially ordered by the defendant. That one that was supplied after 52 weeks was accepted and in fact installed by the defendant. The defendant however, complained that it was a fabricated one. The defendant initiated criminal proceedings against the claimant and as a result of which the claimant brought this action against the defendant.
Whereupon, the Court below found to the conclusive

effect:
I therefore prefer the evidence of the defendant which is more direct and positive. I am of the view that even though the defendant has accepted the supply after 52 weeks the defendant can claim damages. See UDOM VS. MICHELLETTI AND SONS LIMITED (1997) 8 NWLR (Pt. 516) 187 at 202. The defendant cannot be said to have waived her rights.

Having critically, albeit dispassionately, considered the argument of the learned counsel vis–vis the vexed judgment, I am of the paramount view that the findings of the Court below copiously alluded to above are cogent, unassailable and duly supported by the pleadings and evidence of the respective parties on record. And I so hold.
In the circumstance, the second issue ought to be in the positive, and it is hereby resolved against the Appellant.

ISSUE NO. 3
The third issue raises the question of whether the Court is correct in adjudging the Appellant liable for non-adherence with the product delivery, given that the evidence adduced which the Court admitted in evidence, shows clearly:
(i) the delivery timeline was not a strict requirement of the supply; and
(ii) the delays

in contact performance were due to ?acts of God,”
and events beyond the human control of the parties. (Grounds 8 and 9 of the Amended Notice of Appeal).

DETERMINATION OF THE RESPONDENT?S
PRELIMINARY ISSUES
It is noteworthy, that the Respondent has raised preliminary objection under the instant third issue, thereby urging upon the Court to strike out Grounds 8 and 9 suo motu. The reason being that the said grounds are ?repetitive and quite argumentative contrary to Order 7 Rules 3 of the Court of Appeal Rules 2015 (sic)?.

Relying upon the case of AMICO CONSTRUCTION COMPANY LIMITED VS. ACTEC INTERNATIONAL LIMITED (2015) 17 NWLR (Pt. 1487) 146 @ 162 paragraphs B ? C; IKPEAZU VS. OTTI (2016) 8 NWLR (Pt. 1513) 38 @ 95 paragraphs A ? DW, the Court is urged upon to strike out the said Grounds 8 and 9 of the Notice of Appeal.
?
Without any much ado, I would want to hold that the preliminary objection raised by the Respondent under the instant issue three is grossly incompetent for some obvious reasons. Firstly, the reference to ?Order 7 Rules 3 (sic) of the Court of Appeal Rules 2015?,

is a misnomer. To the best of my knowledge, the extant Court of Appeal Rules are those of 2016 and not 2015.

Secondly, under the Court of Appeal Rules in question, a Respondent intending to rely upon a preliminary objection to the hearing of the Appeal, has an onerous obligation to give (at least) three clear days? notice thereof before the hearing date, setting out the grounds of objection. However, where (as in the instant case) the Respondent fails to so file the notice of preliminary objection thereof within the stipulated time limit, the Court has the discretion to either refuse the application outright, or adjourn the appeal for hearing at the costs of the Respondent. See Order 10 Rules 1 and 3 of the Court of Appeal, 2016 (supra).

Thirdly, it is most regrettable and unethical for the Respondent to urge upon the Court at this crucial stage of determination of the appeal, to strike out the said Grounds 8 and 9 of the Notice of Appeal. Most undoubtedly, the Respondent?s invitation to the Court borders on wanton escapade to breach the Appellant?s fundamental human right to fair hearing, as cherishingly enshrined in Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended.

See also COLE VS. MATTINS (1968) ALL NLR 161; (1968) NMLR 217; THE TRUSTEES OF APOSTOLIC CHURCH LAGOS AREA VS. AKINDELE (1967) NMLR 263.

In the circumstance, I have deemed it not only expedient but equally imperative to hold that the preliminary objection raised by the Respondent in paragraph 6.1 under Issue No. 3 of the brief thereof is grossly incompetent, and same is hereby discountenanced and accordingly expunged.

DETERMINATION OF ISSUE NO. 3 ON THE MERITS
In the instant case, it is not controversial that the Appellant had breached the time line of the 16 ? 20 weeks expressly stipulated in the proforma invoice (EXHIBIT 3). The same time line of 16 ? 20 weeks was equally acknowledged in EXHIBIT 4, wherein the Appellant itemized the stages of supply and delivery of the poultry cages.

Regrettably, the Appellant failed to deliver the items within the 16 ? 20 weeks stipulated time frame, despite having been paid in full the contract sum by the Respondent within 6 weeks. As aptly postulated by the Court below at pages 255 last paragraph, and

256 first paragraph of the record:
There is no dispute that the contract for the supply of cages was to be executed between 16 ? 20 weeks. The cages were not supplied until 52 weeks. The cages that were not the once (sic) that was supplied after 52 weeks was accepted and in fact installed by the defendant. The defendant however complained that it was fabricated one. The defendant initiated criminal proceedings against the claimant as a result of such the claimant brought this action against the defendant.

Under paragraph 59 at page 20 of the Appellant?s brief, the reasons for the delay in supplying cages within the time frame of 16 ? 20 weeks have been postulated thus:
59. There was clear and incontrovertible evidence that the delay in achieving the contractual delivery period included, Genc Godzees, the first foreign supplier cancellation of the latter of credit issued in its favour and insistence on a 50% advance payment to the requirement of the CBN.

The cases of STANDARD ENGN. CO. LTD VS. NBCI (No Citation given); DAVIS CONTRACTORS LTD VS. FAREHAM UDC (1956) AC 696, were cited and relied upon by the Appellant?s

learned counsel, to the effect that a contract may by frustrated by the conduct of the foreign supplier and that without default of either party, a contractual obligation may become incapable of being performed.

However, as alluded to above under the second issue, there are clear material inconsistencies in the evidence of both the PW1 and PW2 which cannot be relied upon. Indeed, it is settled, that for an evidence to be accepted as cogent and credible, it must be strong and uncontroverted by the adversary who may in the process of cross examination attack and debunk it. And this may be done where the witness reneges from the testimony thereof or contradicts himself by falsifying his earlier testimony. It may also happen where the evidence of a party?s two or more witnesses contradict each other, thereby weakening the entirety of the effect or value of the evidence. See EYO VS. ONUOHA (2011) NSCQR 45 (Pt. 1) 210 @ 214; OGUN VS. AKINYELU (2005) 2 MJSC 92 @ 98.
Indeed, the law on contradictory evidence has been settled in a plethora of formidable decisions. Most particularly, in the case of FATUGA VS. AINA (2008) FWLR (Pt. 398) 394 @ 400

Paragraphs D ? E, the Apex Court aptly held:
Where a party in an action gives contradictory evidence, the Court will not embark upon speculation of which contradictory evidence to prefer, the will simply ignore or reject both pieces of evidence.
See also FATUNBI VS. OLANLOYE (2004) ALL FWLR (Pt. 225) 150; JOLAYEMI VS. OLAOYE (2004) ALL FWLR (Pt. 17) 584; MOGAJI VS CADBURY (1985) 2 NWLR (Pt. 7) 393.

As alluded to above, the Appellant has argued that the prompt performance of the contract for the supply of the cages in question was frustrated by the conduct of the foreign supplier. Thus, allegedly, the Appellant cannot be held liable for the delay. Yet, it is a well settled doctrine, that it is not for the parties, but for the Court to state whether and when a frustration of contract has occurred. SeeOBAYUWANA VS. THE GOVERNOR OF BENDEL STATE (1982) SJGC 167; (1983) 4 NWLR 96.

In the circumstance, the third issue ought to be answered in the positive, and it is hereby resolved against the Appellant.

ISSUE NO. 4
The fourth issue raises the question of whether, having found the Respondent accepted the cages at week 52

notwithstanding the delays, and there being no complaint from the Respondent, the Court below was correct in awarding damages in favour of the Respondent on ground of delayed performance of the contract. (Ground 6 of the Amended Notice of Appeal).

At page 256, lines 16 ? 19 of the record, the Court found:
I am of the view that even though the defendant has accepted the supply after 52 weeks the defendant can claim damages. See UDOM VS. MICHELETTI & SONS LTD (1997) 8 NWLR (Pt. 516) 187 @ 201. The defendant cannot be said to have waived her rights.

In the instant case, it is evident on record, that the Appellant has admitted vide the PW1 that he was aware of the criminal proceeding and the issuance of a bench warrant against him and Miss. Monica Akpanke. It was the criminal proceeding which actually prompted the Appellant to institute the instant civil action against the Respondent.

Invariably, the term breach of contract denotes a violation of a contractual obligation, either by failing to perform one?s own promise or by wantonly interfering with another party?s performance of the contract. A breach of contract may be

occasioned by non-performance, or by repudiation or both. It is aptly postulated that-
Every breach [of contract] gives rise to a claim for damages, and may give rise to other remedies. Even if the injured party sustains no pecuniary loss or is unable to show such loss with sufficient certainty, he has at least a claim for nominal damages. If a Court chooses to ignore a trifling departure, there is no breach and no claim arises.
See RESTATEMENT (SECOND) OF CONTRACTS (1981) @ 236; BLACK?S LAW DICTIONARY, 7th Edition 1999 @ 182.

In the instant case, it is not at all in doubt, that the Respondent did not in any way admit being responsible for the delay in the performance of the contract within the 16 ? 20 weeks? time frame. It is evident on the face of the record, that

the Respondent faithfully paid 70% of the contract sum within one week of the issuance of the preforma invoice (Exhibit 3) by the Appellant. That payment was acknowledged by the Appellant vide Exhibit 4 on November 28, 2011. The balance of 30% was dutifully paid by the Respondent within 6 weeks of the 16 ? 20 weeks? time frame of the contract.

Hence, the Respondent had faithfully fulfilled her part of the bargain (contract) sincerely hoping that the Appellant would faithfully deliver the items in good time, but to no avail. I agree with the Respondent?s argument that the issue of ratification, waiver or acquiescence, would have arisen if the balance (of the contract sum) was paid upon delivery of the poultry cages in question.
?An innocent party such as the Respondent, ought not to ordinarily be bound to treat the contract as discharged. He may elect to treat the contract as continuing contract. He may elect to consent that the other party has discharged the liability. He has the option to do as it pleases him. Yet, if he chooses to treat the contract as duly discharged he may still sue the other party for damages for loss consequent

upon the breach of the contract. This is the hall-mark of the authoritative decision of the Apex Court inUDOM VS. MICHE LETTI & SONS LTD (1997) 8 NWLR (Pt. 516) 187 @ 201. See also MODERN PUBLICATIONS LTD VS. ACADEMY PRESS LTD (1986); SECTION 11 (2) OF THE SALE OF GOODS ACT 1979:
Where a contract of sale is subject to a condition to be fulfilled by the seller, the buyer may waive the condition or may elect to treat the breach of the condition as a breach of warranty and not as a ground for treating the contract as repudiated.

In the circumstance, the fourth issue ought to be answered in the positive, and same is accordingly resolved against the Appellant.

ISSUE NO. 5
The fifth issue raises the question of whether upon a proper consideration of the Respondent?s counter claim, the Court below rightly found that the Respondent proved its counter claim against the Appellant. (Grounds 4 and 5 of the Amended Notice of Appeal).

ISSUE NO. 6
The Issue 6 (not 4 as erroneously stated at page 31 of the Appellant?s brief) raises the vexed question of whether the Court below was right in awarding the sum of Fifty Million Naira

(N50,000,000.00) as general damages for breach of contract in favour of the Respondent? (Ground 1 of the Amended Notice of Appeal).

Undoubtedly, both Issues 5 and 6 are correlative, thus I have deemed it expedient to determine them together.

A counter claim is a claim for relief asserted against an adversary party after an originating claim has been made. A counter claim, strictly so called, is a defendant?s claim in opposition to, or as a set off against the plaintiff?s claim. Also termed counter action; counter suit; cross-damages; cross-action, et al. See BLACK?S LAW DICTIONARY (Supra) @ 353.

At pages 39 and 40 of the Record, the respondent set out the counter claim in paragraphs (34) ? (37) of the statement thereof. By paragraph (37) of the said statement of claim, the Respondent counter claimed thus:
(a) The sum of N2,641,640 being the cost incurred as the shortfall in the sales of 14, 146 birds for N10,089,760 as against N12,731,400 if it was sold for N9,000 per bird at the actual market rate.
(b) The sum of N60,078,600 being the cost of 6,754 birds that died due to overcrowding in the local cage/pen (at

the rate of N900 per bird) in which the birds were raised in anticipation of the delivery of the automated cage on schedule.
(c) The sum of One million (N1,000,000) being the cost of installation of the cages by another company.
(d) The sum of Fifty Million Naira (N50, 000,000) being damages for breach of contract.
(e) The sum of Two Million Naira (N2, 000,000) for the cost of litigation.

It is very obvious on the face of reliefs (a), (b) and (c), that they are in the realm of special damages. As special damages, such reliefs are liable to be specifically, distinctly pleaded, and strictly proved by cogent and reliable evidence. See OSUJI VS. ISIOCHA (1989) 3 NWLR (Pt. 111) 623 SC; ALHAJI OTARU & SONS LTD VS. IDRIS (1999) 6 NWLR (Pt. 606) 330.

At pages 256, lines 20 ? 22, and 257, lines 12 ? 14, of the record, the court below held:
A counter claim being an independent action, it must be proved by the defendant/counter claimant no matter the weakness of the case of the claimant/defendant?
The defendant has therefore proved its counter claim against the claimant. I therefore grant the claims of the

defendant save the claim for cost of litigation.

However, the reality of the situation is that all the three reliefs (a), (b) and (c) are lacking in particulars upon which they ought to have been predicated. As aptly posited by the Appellant?s learned counsel in paragraph 9, at page 29 of the brief thereof, the said reliefs (a), (b) and (c) have not been supported by credible or even no evidence at all. Strangely, no purchase receipts have been attached to establish the actual price at which the birds were purchased. No document to show correspondence between officials of the farm the extent of the losses consequent upon the alleged overcrowding or sale receipts due to early sale. There were equally no receipts of sales, bank statements or inventory of any sort to confirm the number of birds maintained and cost by the Respondent at any specific point in time.

postulated:
(In) an action for breach of contract as this is, damages are not at large and a plaintiff must always plead and prove his actual loss otherwise he is entitled to nominal damages only. Two exceptions to this general rule are known. One is an action for breach of contracts of promise to marry and the other where a trader who is in funds at his bank has cheque dishonoured wrongfully.
Per Idigbe, JSC @ 10 -1 1 paragraphs G A.
Most interestingly, the fundamental principle for quantifying damage for breach of contract had long been established way back in 1854 in the common law locus classicus ? HADLEY VS. BAXENDALE (1854) 9 EXCH. 341, to the effect that the party in breach is liable in damages in the amount which flows directly and naturally from his failure to keep his own part of the bargain (contract), provided that such damage could reasonably have been within the contemplation of the parties at the time when the contract was made. See BALOGUN VS. NBN NIGERIA LIMITED (Supra) per Idigbe, JSC @ 13 paragraph C.
In the instant case, the Respondent having failed to specifically plead any cogent evidence for the special

damages sought under reliefs (a), (b) and (c) of the counter claim thereof, he ought not to have been entitled to the damages granted by the Court below under the reliefs in question. And I so hold.
With regard to relief (d) of the counter claim, the Respondent has claimed:
(d) The sum of Fifty Million Naira (N50,000,000.00) being damages for breach of contract.”
The fundamental object of awarding damages for breach of contract is to place the injured party, so far as money can do it, in the same position as if the contract had been strictly performed. In other words, the injured party ought not to get more in damages than the loss which he has suffered consequent upon the breach of the contract. As a matter of fact, the injured party may even sometimes get less than the loss he has suffered (incurred) under the exclusion principle of ?REMOTENESS OF DAMAGES?, as interestingly laid down in HADLEY VS. BAXENDALE (1854) 9 EXCH. 341, cited with approval by the Apex Court in UNIVERSAL VULCANIZING (NIGERIA) LIMITED VS. IJESHA UNITED TRADING AND TRANSPORT (1992) LPELR ? 3415 (SC) @ 38 ? 39 G ? B. See also

KOUFOS VS. C. CZARNIKOW LIMITED (The Heron II) (1969) 1 AC 350; H. L. COTTRILL VS. S & L BUILDING SOCIETY (1960) 1 WLR 753.
Fundamentally, damages in a case of breach of contract are self-imposed, in the sense that the correct basis for their award upon the breach is what was reasonably within the contemplation of the parties at the material time the contract was entered into. See HADLEY VS. BAXENDALE (Supra); ECONOMIC EXPORTS LIMITED VS. ODULOLA (1959) WRNLR 239; UNION BEVERAGES VS. OWOLABI (1988) 2 NWLR (Pt. 68) 128 ? per Nnaemeka, JSC @ 12 paragraphs F ? A.
In all cases of breach of contract, the Court has the onerous duty to base the award upon the loss naturally flowing from the breach. As authoritatively, held by the Apex Court:
[I]t is the duty of the Court to apply the legal method of assessment to any qualification and clearly not to take any pre-estimated determination as if the damages were special and so provided and so provided for in the contract.
See SWISS NIGERIAN WOOD INDUSTRIES LIMITED VS. BOGO (1970) LPELR ? 3128 (SC), per Coker, JSC @ 14 paragraphs A ? C.

mind that damages normally recoverable are based on the normal and presumed consequences of the breach complained of. See KOUFUS VS. C.CZARNIKOW LIMITED. Thus the terms ?general? and ?special? damages are normally inept in categorization of damages for the purpose of awards in cases of breach of contract. We have had occasion to point this out before: See AGBAJE VS. NATIONAL MOTORS LIMITED; and we must make that apart from damages naturally resulting from the breach no other form of general damages can be contemplated.
See SWISS ? NIGERIAN WOOD IND. LTD VS. BOGO (Supra) Per Coker, JSC @ 9 ? 10 paragraphs.

Thus, in the light of the foregoing far-reaching postulation, I am of the paramount view that the Appellant?s argument that the Court below did not avert its mind to the fact that the relief (d) was in the nature of special damages and no single shred of evidence was adduced to establish same, is preposterous and misconceived.

However, the foregoing postulation notwithstanding, I am of the considered view that the award of Fifty Million Naira (N50, 000,000.00) under relief (d) of the Respondent?s

counter claim is excessive and unreasonable in view of the circumstances of the case. Yet, it is well settled, that where a trial Court in assessing general damages proceeds upon a wrong principle or on no principle of law, at all, and makes an award which is apparently unwarranted, extravagant, unreasonable, and unconscionably excessive, in comparison with the greatest loss that would possibly flow from the breach of contract in question and without stating the basis of the assessment, such an award ought not to be allowed to stand. See HADLEY VS. BAXENDALE (1854) 9 EXCH 314; ACME BUILDERS LIMITED VS. KADUNA STATE WATER BOARD (1999) LPELR ? SC 165/1992 Per Onu, JSC @ 20 paragraphs E ? G; OKAFOR VS. IBEGBU (2016) LPELR ? CA/S/19/2014 @ 32 ? 33 paragraphs C ? E.

(1989) 4 NWLR (Pt. 115) 296 @ 309; NPMB VS. ADEWUNMI (1972) NSCC 662 @ 665; IFETA VS. SPDC NIGERIA LIMITED (2006) 8 NWLR ? (Pt. 983) 585 @ 33 paragraphs B ? D.

As postulated above, the Fifty Million Naira (N50,000,000.00) awarded under relief (d) of the Respondent?s counter claim by the Court below is outrageous and unconscionably excessive, thus it ought not to be allowed to stand.

In the circumstances, the fifth issue is resolved in part, with particular regard to reliefs (a), (b), and (c) in favour of the Appellant. The sixth issue is equally resolved in part in favour of the Appellant.

Hence, against the backdrop of the resolution of Issues 1, 2, 3 and 4 against the Appellant, and the resolution of Issues 5 and 6 in part in favour of the Appellant, there is no gain-saying that the appeal succeeds in part, and it is so allowed in part by me.

CONSEQUENTIAL ORDERS
1. Having allowed the appeal in part with particular regard to the reliefs (a), (b) and (c), the decision of the Court below pertaining to the said reliefs (a), (b) and (c) of the Respondent?s counter claim, is hereby set aside.
2. Having resolved

Issue 6 in part in favour of the Appellant, the decision of the Court below pertaining to the award of Fifty Million Naira (N50,000,000.00) general damages adjudged to be unreasonable and unconscionably excessive is hereby substituted with an award of Ten Million Naira (N10,000,000.00) only as damages for breach of contract in favour of the Respondent.
3. Parties shall bear their respective Costs of litigation.

HAMMA AKAWU BARKA, J.C.A.: I had a preview of the judgment just delivered by my learned brother Ibrahim Mohammed Musa Saulawa JCA, in draft.

My learned brother extensively and brilliantly too resolved the issues in controversy to my satisfaction. I do agree that the appeal be partly allowed with respect to the quantum of damages awarded to the respondent and thereby abide all consequential orders made including that as to costs.

BALKISU BELLO ALIYU, J.C.A.: I agree with the lead Judgment which has just been delivered by my learned brother, IBRAHIM MOHAMMED MUSA SAULAWA, JCA. I adopt the reasoning and conclusion reached in the lead Judgment as mine in resolving Issues Nos. 1, 2, and 3

in favour of the Appellant and Issues Nos. 5 and 6 are hereby also resolved in part in favour of the Appellant by me. I abide by the consequential Orders made as to Costs in the lead Judgment

Appearances:

Flora Ngo-Martins, Esq. with him, M. K. Abdulkadir, Esq.For Appellant(s)

O.M. Obaro, Esq. with him, Yetunde Adeoye, Esq. and A. S. Enyama, Esq.For Respondent(s)

Appearances

Flora Ngo-Martins, Esq. with him, M. K. Abdulkadir, Esq.For Appellant

AND

O.M. Obaro, Esq. with him, Yetunde Adeoye, Esq. and A. S. Enyama, Esq.For Respondent