CHEVRON NIGERIA LIMITED v. MR. LUKE EZEIGHU
(2012)LCN/5557(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 10th day of July, 2012
CA/B/63/2005
RATIO
COURT: DUTY OF A TRIAL COURT TOWARDS EVALUATION OF EVIDENCE
It is the duty of a trial court which saw and heard witnesses to evaluate the evidence and pronounced their credibility or probative value and not the Court of Appeal which neither heard the witnesses nor saw them to observe their demeanor in the witness box. See EBBA v. OGODO (1984) 1 SC NLR 372. However the Court of Appeal is in a position to evaluate evidence the trial court where the trial court failed to do so. AJAKAYE V. ADEDEJI (1990) 7 NWLR (Pt 161) 192. PER GEORGE OLADEINDE SHOREMI, J.C.A.
DAMAGES: WHAT A PARTY TO A CONTRACT WHO DOES NOT RECEIVE THE PROMISED PERFORMANCE IS ENTITLED TO
In the award of damages, a party to a contract who does not receive the promised performance because of a breach by the other party is entitled to compensation. PER GEORGE OLADEINDE SHOREMI, J.C.A.
DAMAGES: MEASURE OF DAMAGES IN A BREACH OF CONTRACT
The measure of damages in a breach of contract is the loss flowing naturally from the breach and is in direct consequence of the violation and no other damage can be contemplated and the object of award of damages in such circumstance is to put the injured party, so far as money can do in the same position as if the contract had been performed. See – SWISS NIG. WOOD INDUSTRY LTD. v. BAGO (1970) 1 All NLR 423; ONORUWA v. WAHABI (1976) SC. 37 SHELL B. P. v. JAMMAL ENG. (1974) 4 SC 53; OKONGWU v. N.N.P.C. (1989) 4 NWLR (Pt.115) 296, at 307. PER GEORGE OLADEINDE SHOREMI, J.C.A.
JUSTICES:
RAPHAEL CHIKWE AGBO PJ Justice of The Court of Appeal of Nigeria
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
Between
CHEVRON NIGERIA LIMITED – Appellant(s)
AND
MR. LUKE EZEIGHU
(Trading in the name and style of LUGHUS & CO.) – Respondent(s)
GEORGE OLADEINDE SHOREMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Delta State delivered on 6th day of August, 2004. The learned trial Judge after taking evidence and addresses of counsel gave judgment to the Respondent then as Plaintiff. The Appellant dissatisfied with the judgment appealed against the said judgment and filed his notice of appeal dated and filed on 9/8/04.
The facts of the case are that
“The Plaintiff (hereinafter referred to as the Respondent) at the trial court claimed against the Appellant as follows:-
a) An order of specific performance of a contract agreement entered into between the Plaintiff and the Defendant sometime between March and April, 1997 at December’s office along New Port Express Road, Effurun within the jurisdiction of this Honourable court. Plaintiff under the said contract supplied various materials to the defendant but the Defendant has refused to fully perform its obligation to Plaintiff under the said contract.
b) An order of court compelling the Defendant to accept all the items already supplied which are still in Defendant’s warehouse under the contract.
c) An order of this Honourable court compelling the Defendant to pay the balance sum of N759,467.00 to the Plaintiff under the contract.
d) Payment of 20% interest per month on N600,000.00 being balance sum used in financing the contract from May, 1997 till judgment.
e) The sum of N5,000,000.00 (five million naira) being general damages for breach of contract as Plaintiffs business cannot be operated fully with the huge sum of money tied down by the Defendant and/or for loss of use of the said sum in Plaintiffs business.
Appellant joined issues with the Respondent in its further Amended Statement of Defendant in which it counter claimed against the Respondent as follows:
a. Cost and expenses of replacement of materials not supplied by Plaintiff … N1,000,000.00
b. Amount claimed from Defendant by its contractors as down time charges as a result of delay in supply by Plaintiff of materials … N1,000,000.00
c. Cost of transporting rejected materials from Escrawos to Warri … N23,843.75
d. Cost of warehousing Plaintiffs material at N250.58 per day from 29-4-97 till materials are removed or judgment given which ever event is earliest in time.
e. General damages for breach of contract by Plaintiff … N1,000,000.00
Respondent testified in proof of his case whilst the Defendant in its defence called on witness.
Judgment was entered in favour of the Respondent and against the Appellant on 6-8-2004.
By a motion dated 5/3/08 filed same day the Appellant was given 14 days to amend his Notice of Appeal and grounds of appeal wherein he has Eight (8) grounds of appeal. I set them out without particulars:-
GROUND 1
The learned trial Judge misdirected himself on the facts before him and thereby came to a wrong decision when he held as follows:
“Exhibit 12 in my view was a letter requesting the Defendant to effect the LPO change notice for items accepted to enable the Plaintiff submit his invoice. It is not a letter canceling the contract.”
GROUND 2
The learned trial Judge misdirected himself on the facts and thereby came to a wrong decision when he held as follows:-
“I hold that the Plaintiff supplied the right specification which met exhibit 1 (the Enquiry). Exhibit “7” with the figure 60c on it was designed to confuse the Plaintiff. It was designed to undercut him. It was designed to put his business in jeopardy (sic). Indeed it was done with malice”.
GROUND 3
The learned trial Judge misdirected himself on the facts and thereby came to a wrong decision when he held as follows:-
“From the 21st or 26th of April, 1997 to 21st of May, 1997 is well over the stipulated time (21 days) that the Defendant would have rejected the goods. He is estopped from doing so now. The Defendant failed to act timeously. Therefore the Defendant owns the goods as title has passed to her. By the conduct of the Defendant it amounts to acceptance of the goods.
I am of the view that the law that governs the transaction is the sale of Goods Act 1893. The Defendant had a statutory duty to accept the goods, which were supplied according to specification. The property in the goods having passed to the Defendant, it is too late in the day for him to reject them. The goods now belong to the Defendant. It cannot be heard that he rejects his own goods. The Defendant had the OPPORTUNITY to compare the same with the bulk. He therefore cannot now reject same. The samples were left with them in their warehouse and are still there. They had 21 days within which to reject same but he did not. Acceptance is therefore pressured according to section 35 of the same of Goods Act 1893 as the court can do just that”.
GROUND 4
The learned trial Judge misdirected himself on the facts and thereby came to a wrong decision when he held as follows:-
“The Plaintiffs letter exhibit “3” connotes that the samples were already accepted but in exhibit 10 – to the 3rd paragraph contradicts this case of the Plaintiff”.
It has this to say inter alia.
“Notwithstanding the above though we have carried the deliveries (sic) made in furtherance of the above issued LPO and we discovered that some of the goods supplied did not conform with the specifications as stated on the LPO and they were totally different from the samples you provided prior to the issuance of the L.P.O..?
Exhibit ‘3’ was written on the 12th of March, 1997 while Exhibit ’10’ was written on the 14th of March, 1997, curiously before Exhibit ‘7’ (the L.P.O., was issued, before Exhibit ‘4’, ‘5’ and ‘6’) waybills for the delivery of the said items were made. On Exhibit ‘4’ was stamped partial Receipt for four items dispatched on the 21st March, 1997 and received on the 26th of March, 1997. On Exhibit ‘5’ is stamped partial receipt for 2 items and also the words.
“Material received subject to acceptance by the Requisitioner” So is Exhibit ‘6’ for two items.
I am of the view that Exhibit ‘5’ and ‘6’ are an after thought and I believe that the samples had been accepted before Exhibits ‘5’ and ‘6’ were issued.
However the Plaintiff had explained that the term “material received subject to acceptance by requisitioner applied to where you have two samples for a particular item. The defendant has been unable to debunk this averment.
Let me reproduce paragraph 7 (vi) and paragraph 7(viii) and 8 of the Defendant’s further statement of defence and counter claim.
Paragraph 7(vi)
“Part of the goods supplied by the Plaintiff which goods Defendant was obliged to reject were different from those which were the subject of the enquiry based on which Plaintiff submitted his quotations and samples”.
Paragraph 7(viii)
“On examination by the Requisitioner, at the alternate destination in consonance with Defendant LPO terms and conditions it was discovered that some of the goods supplied by the Plaintiff did not meet the specifications and samples supplied by the Plaintiff prior to the issuance to him (Plaintiff) of Defendant’s L.P.O”
“It is my view that these two paragraphs conflict with one another”.
GROUND 5
The learned trial judge erred in law when he held as follows:-
“I do not agree with learned counsel for the Defendant that exhibit 20 amounts to a money-lenders transaction. It is an agreement between a party and a financier and the terms of the agreement is clear on the face of exhibit “20”. That submission is a total misconception”.
GROUND 6
The learned trial Judge erred in law in his award of damages by applying in his award wrong principles of law and taking into account irrelevant factors resulting in excessive award of general damages and interest.
GROUND 7
The learned trial Judge misdirected himself on the facts when he refused to grant the counter claim of the Defendant.
GROUND 8
The judgment is against the weight of evidence.
In line with the practice of this court briefs were exchanged by parties.
When the case came up for hearing on 31/5/12, D. O. Olokor Esq. holding the brief of V. E. Akpoguma identified his brief of argument in favour of the Appellant. He identified his brief dated and filed on 19/10/09. He adopted same and relied on it to urge this court to allow the appeal.
Onome Egbon of counsel to the Respondent adopted and relied on Respondent brief dated 22/4/10 filed same day and urged this court to dismiss the appeal as lacking in merit.
The Appellant distilled 5 issues for determination from his 8 grounds of appeal. The issues are set out as follows:-
ISSUES ARISING FOR DETERMINATION IN THIS APPEAL
1.) Whether the items supplied by the respondent to the Appellant some of which items the Appellant rejected were items the Appellant by its Local Purchase Order (LPO) requested Respondent to supply to it? And if not, whether the items were, in accordance with the terms and conditions of the LPO validly rejected by the Appellant? (Grounds 2, 3, 4 and 8)
2) Whether the Respondent is not stopped by his conduct and representation from demanding to paid for items rejected by Defendant which demand for payment is a challenge of the cancellation/amendment of LPO, exhibit 7, as evidence by exhibit 13A (Ground 1)
3) Whether the “financier” in exhibit 20 is a money lender within the meaning of the Money Lenders Law CAP 100 Laws of the Defunct Bendel State 1976 applicable to Delta State of Nigeria? And if so, Whether exhibit 20 is enforceable? (Ground 5)
4) Whether on the facts and on the principles of law relating to contract, the damages awarded by the learned trial Judge is not excessive? (Ground 6)
5) Whether the dismissal of the Appellant’s counter claim is on the facts of the case and on the principles of law justified? (Ground 7)
The Respondent in his brief adopted the issues as formulated by the Appellant.
In this appeal I will treat the issues as set out one after the other-
Issue 1
Whether the items supplied by the Respondent to the Appellant rejected were items the Appellant by its LPO requested Respondent to supply to it. And if not whether the items were, in accordance with the terms and cancellation of the LPO validly rejected by the Appellant. Grounds 2, 3, 4 and 8.
In arguing this issue the Appellant referred to Exhibit 1 referred to as Inquiry (exhibit 1 for the supply of scaffolding. Appellant also argued that further to the said in inquiry agreed for the submission of quotation. It is also not contested by parties that supplication of items as stated in Exhibit 1 were made by the Respondent to the Appellant. Refer to waybills exhibit 4, 5 and 6 were duly endorsed by one James Oboite (Appellant’s servant).
He submitted that the mere act of receiving the items supplied as evidence by Exhibit 4, 5 and 6 does not mean that the items supplied were accepted by the Appellant. He argued that the delivery of items by the Appellant as contained in the slip of Exhibit 7 Article 21.122.2.
He argued that the Respondent’s evidence to the effect that James Oboite had accepted the items is not supported by the evidence of Respondent. He argued that what constitute valid acceptance is contained in Article 21.1., 21.2, 21.3 terms and condition which is binding on the Respondent and Appellant. He argued that acceptance is within 21 days of receipt regardless of any receipt or other document executed prior to such examination. He argued that James Oboite having stamped the LPO as accepted is still subject to rejection. He argued that Warri Warehouse was the only delivery point.
It is argued that the Respondent knew that Warri is the only warehouse being used by the Appellant. He submitted that the items rejected were validly rejected. He argued that the Appellant has 21 days within which to inspect products supplied. He argued that the 21 days referred to is for the Appellant to reject good supplied after receipt.
He urge this court to give effect to 21 days be given a liberal in interruption in favour of the Appellant. He referred to –
1) CHIEF JOSEPH ADOLO OKOTIE-EBOH v. CHIEF JAMES EBIOWO MANAGER & 2 ORS (2005) All FWLR Pt.241;
2) CHIEF BERTHRAND E. NNONYE v. D. N. ANYICHIE & 2 ORS (2005) All FWLR Pt 253 at 604.
He argued that the panel when the Respondent knew of the rejection was less than 21 days referring to Exhibit 11. He argued that the document as it is bonds the Respondent and he is not entitled to adopt a portion and reject the remaining cites WALTER v. SKYII NIGERIA LIMITED (2000) FWLR PART 13 PAGE 2244.
He made reference to the evidence of the Respondent under cross-examination. He argued that the trial court had failed to properly executed the evidence before it and urge this court to do so. See BERHA v. TIZA (2004) 4 NWLR Pt.652 page 193. He argued that Respondent supply was on Exhibit 7. He referred to the evidence of the Respondent wherein he admitted that the same items were rejected. He argued that the contention of the Respondent alleging fraud is not proved. He argued that the issue be resolved in favour of the Appellant.
The Respondent on issue one argued that it is not in contention that items in Exhibit 1 were supplied pending the issuance of LPO. He said the defence of the Appellant was that some of items under Exhibit 1 were rejected.
He referred to contents of exhibit A, 13A as the binding contract. He said the question that comes to mind is what were the items actually rejected by the Appellant vide Exhibit 1 for which the Respondent supplied samples and which samples were accepted and Respondent given oral instruction to supply …… the LPO for the supply. He showed the part that the supply of the items were clear before the issuance of the LPO.
He argued that there is no dispute on the part of the Appellant that the Respondent supplied the items requested for however the only area of dispute is that the items were not in accordance with the specification in Exhibit 7. The respondent said he supplied the material based on Exhibit 1 and on the acceptance of the sample he was given oral approval to supply the items which he did even before the LPO was issued.
After reviewing the evidence adduced by the Respondent. He submitted that it is the law that parties are bound by the terms of their contract and in this case the Respondent was invited to supply in line with Exhibit 1 which was done.
The Appellant gave evidence that it is only the end user determines the acceptance. He is of the opinion that this line of argument was knocked off by the evidence of the respondent and documentary evidence before the trial court. He argued that the evidence of supply and not rejection is not controverted cited UBA PLC v. JARGABA (2007) All FRLR (Pt.380) 4419; BUHARI v. OBASANJO (2005) All FWLR (Pt.258) 1604.
He argued that Niyi Falode DW1 is not the end user neither is he the maker of Exhibit 10. None of the people who inspected and accepted the items that were rejected were called to give evidence. He urged the court to resolved Issue 1 in favour of the Respondent and against the Appellant.
To me issue one is the crux of this appeal as vehemently argued by the parties in their briefs is Exhibit 1
The learned trial Judge in his consideration of evidence adduced came to the conclusion that the Appellant did not reject the items timeously. Therefore the Defendant held the goods as title has passed. By the conduct of the Defendant it amounts to acceptance of the goods.
He further held that the (Plaintiff/Respondent) supplied the right specification which met Exhibit 1 and Exhibit 7 with figure 60c on it was designed to confuse the Respondent.
It is the duty of a trial court which saw and heard witnesses to evaluate the evidence and pronounced their credibility or probative value and not the Court of Appeal which neither heard the witnesses nor saw them to observe their demeanor in the witness box. See EBBA v. OGODO (1984) 1 SC NLR 372. However the Court of Appeal is in a position to evaluate evidence the trial court where the trial court failed to do so. AJAKAYE V. ADEDEJI (1990) 7 NWLR (Pt 161) 192. On Exhibit 8, 9, the trial Judge summarized his findings at 122-13- 17 of the Records. I quote –
“It is my view that the figure 60c altered the specification of the items in Exhibit 7 and this was done unilaterally by the Defendant and I believe it was done in bad faith, particularly in view of Exhibits 8 & 9 where one is radically different from one that has no 60c”.
Again at page 124 lines 17-23 of records the trial Judge has this to say-
“the plaintiff had both in his oral evidence and by documentary evidence Exhibit 3 & 16 respectively established and indeed proved his assertion that the items he supplied met with the specifications. The Defendant called no witness to debunk this. I find the evidence of the plaintiff with regards to Exhibit 8 still unchallenged”.
I have read the evidence as rendered in the trial and the judgment I am of the view that the consideration of the facts of the case by the trial court is not perverse. The Appellant as Defendant in the lower court muddled up their evidence and therefore had nothing to convince the Court of Appeal to tamper with the decision of the lower court on this issue. The alteration of the contents of Exhibit 7 by adding 60c in Exhibit 7 is uncalled for.
Once the contents of Exhibit 7 is performed by the Respondent the Appellant is bound by it and it is sufficient to form a binding contract between the parties without actual intimations of the acceptance. See OKUBULE v. OYEGBOLE (1990) 4 NWLR (Pt.147) 923; OBAYIUWANA v. EDO (1998) 1 NWLR Pt. 535 670.
The Respondent had established the existence of a binding contract and a breach thereof. See ORJI V. ANYASO (2000) 2 NWLR (Pt.643) 1.
From the above I see no reason why I should disagree with the trial court in his findings as it is not perverse.
Issue 1 is therefore resolved against the Appellant and in favour of the Respondent. Issue one with Grounds 2, 3, 4 and 8 is dismissed.
Issue 2 Ground 1
Whether the Respondent is not stopped by the conduct and representation from demanding to be paid for items rejected by defendant which demand for payment is a challenge of the cancellation of LPO Exhibit 7 as evidence by exhibit 13A.
The Appellant commenced his argument by referring to Article 1 of the LPO term and conditions which is contained on the slip side of Exhibits 7 and 13A. He argued that the Respondent was aware of the waiver contained therein and was bound by it. He argued that the Appellant did so in writing by means of properly approved local purchase order charge notice”. He argued that this is deduced from the Respondent evidence including his letter Exhibit 12.
Respondent intended to and did request for the variation or amendment of the items of Exhibit 7 in consonance with Article 1 of the LPO terms and conditions Exhibit 12. He said that the Appellant had requested the Respondent to submit his invoice for payment for the items accepted by it.
He argued that by Exhibit 12 Respondent accepted that he was not excepted to be paid for items the Appellant did not accept. He argued that the Respondent applied for the LPO charge Notice knowing fully well that if the Appellant accede to his request which the appellant did in this case it affected a change in the earlier contract. A new contract is stated in the LPO charge.
He submits that to allow the Respondent to be paid for items 1-5 in Exhibit 7 which was cancelled by exhibit 13A is clearly inequitable. Refer to TIKA TONA PRESS LTD. v. ABINA (1973) 1 All NWLR Page 882; INYANG V. EBONG (2002) FWLR part 125 page 703 at 747. He urged the court to resolve the issue in his favour.
The Respondent on the other hand said the report gave a clear evidence that he was claiming for items supplied and not those rejected. The argument of the Respondent is that the rejection was by malice and he was not informed of the rejection.
It is the argument of the Respondent that Exhibit 12 was written to inform the Appellant as to payment by submitting invoice. He argued that the Respondent could not have been paid any monies by the Appellant in the absence of the LPO charge Notice.
He argued that this is evident in the evidence of Niyi Falode at page 57 of records which reads “wherein on LPO, we accept some items and reject some unless there is a charge order notice or that L.P.O. the supplies can not be paid”.
Respondent argued that it is a letter of demand of payment and nothing more.
I can not see any good argument of the Appellant on this issue of Exhibit 12 I agree with the learned trial Judge that Exhibit 12 i.e. letter requesting the defendant to effect L.P.O. charge notice for items supplied and accepted to enable the Plaintiff submit his invoice.
One has to look at the actual circumstance of a case to see whether the one party to a contract is relieved of his duty to perform by the conduct of the other.
This issue has no foundation and it is resolved in favour of the Respondent against the Appellant. Issue 2 together with Ground 1 is dismissed.
Issue 3 Ground 5
Whether the financer Exhibit 20 is a money lender within the meaning of the Money Lender Laws Cap 100 Law of Bendel State applicable to delta State of Nigeria and if so whether Exhibit 20 is enforceable.
The Appellant submitted that Exhibit 20 should be taken as being money lending transaction and therefore has interest being paid does not conform with the rate of interest allowed by the Money Lender Law. He argued further that Exhibit 20 ought to have been rejected as it is ex-facie touted with illegality.
He argued that anybody who gives hear regularly to before one is caught by the provisions of Section 15 of the Money Lenders Law. He argued that the trial court erred in law when it refused to declare illegal and unenforceable Exhibit 20 and to have awarded interest based thereon. The Appellant relied on the case of SHELL B.P. CO. LTD. v. JAMMANL ENGINEERING LTD. (1974) All NLR 499 at 523-524 (Reprint).
The Respondent argued that the Appellant did not challenge the evidence the contract being financed by a financier. He explained that Exhibit 20 can not be classified as money lending. He urged on this court to hold that Exhibit 20 is not a money lending agreement which makes a financier a money lender.
Section 2 of the Money Lenders Law of Bendel State applicable to Delta State defines a Money Lenders thus I quote –
“Money Lender” includes every person whose business is that of money tending or who carries on or advertises or announces himself or holds himself out in any way as carrying on that business whether or not he also possesses or own property or money derived from source other than the lending of money and whether or not he carries on the business as a principal or on agent but shall not include…”
The learned trial Judge was right as not to declare Exhibit 20 as illegal. It is enforceable against the parties thereto.
Issue 4 Ground 6
Whether on the facts and on the principles of law relating to contract, the damages awarded by the trial Judge is not excessive Ground 6.
The Appellant argued that the trial Judge was wrong when he held that the Respondent had suffered emotional financial trauma which has affected his business. He then awarded the sum of (N2,000,000 (Two million Naira) as general damage. The trial Judge based his award on
(a) Exhibit 20
(b) Suffering an emotional loss which affected his business.
(c) The goods are still being retained by the Appellant which has not being fully paid.
He relied on SHELL B.P.CO. LTD. v. JAMMAL ENGINEERING NIG LTD. (1974) All NLR 489 at 523 (Reprint).
The Respondent in his argument justified the award made by the trial court.
He said the quarrel of the Appellant is the quantum of damages awarded by the trial court. He argued that a party to an action can not benefit from his wrongful act. Refer to INYANG v. EBONG (2002) FWLR (Pt. 125) 703. He argued that once there is evidence to sustain a trial courts decision it is not for the Court of Appeal to substitute its own inference with that reached by the trial court. Refer to MNORACKIM v. AKAH (2004) 7 NWLR Pt.873, 468.
In the award of damages, a party to a contract who does not receive the promised performance because of a breach by the other party is entitled to compensation. The measure of damages in a breach of contract is the loss flowing naturally from the breach and is in direct consequence of the violation and no other damage can be contemplated and the object of award of damages in such circumstance is to put the injured party, so far as money can do in the same position as if the contract had been performed. See – SWISS NIG. WOOD INDUSTRY LTD. v. BAGO (1970) 1 All NLR 423; ONORUWA v. WAHABI (1976) SC. 37 SHELL B. P. v. JAMMAL ENG. (1974) 4 SC 53; OKONGWU v. N.N.P.C. (1989) 4 NWLR (Pt.115) 296, at 307.
It is my view that the learned trial Judge has no basis for the award of N2,000,000 two million Naira as damages in favour of the Respondent. This issue is resolved in favour of the Appellant.
Issue 5 Ground 7
Whether the dismissal of the Appellant’s counter-claim is on the facts of his case and on principle of law justified.
The Appellant is of the opinion that the trial Judge was not right in dismissing the counter-claim.
The Respondent is of the opinion that the Judge was right in dismissing the counter claim.
The Appellant to my mind gambled with the counter-claim. The evidence adduced by him is not sufficient to prove his claim. I am in agreement with the learned trial Judge that the counter-claim was not proved and it is dismissed.
The issue is resolved against the Appellant.
In all the appeal succeeds in part. It is therefore ordered as follows:
The Respondent is entitled to judgment in the following terms
1) Order of specific performance is hereby made of the contract agreement entered into between March and April, 1997 at Defendant’s office along New Port Express Road at Effurun
2) The Defendant i.e. Appellant is hereby compelled to accept all the terms already supplied which are still in the Appellant (Defendant’s) warehouse under the said Contract.
3) The Defendant is hereby ordered to pay the balance of N769,467.00 to the Plaintiff (Respondent) under this contract.
4) The Defendant shall pay 10% interest per month on the balance of payment which is N769,467.00 till payment is made.
5) General damage is assessed at N1,000,000 (one million Naira only).
The award of interest on N600,000 being balance sum used in financing the contract had no basis and it is therefore perversed. Cost of N30,000 is awarded to the Respondent against the Appellant.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I have read in draft the judgment just delivered brother, Shoremi, JCA. I agreed that this appeal succeeds in part and it is hereby allowed by me. I abide by all the consequential orders made in the said judgment, including that of costs.
Appearances
D. O. Olokor Esq. holding the brief of V. E. Akpoguma For Appellant
AND
Onome Egbo Esq. For Respondent
