DAAR COMMUNICATIONS PLC v. MCKEE (2022)

DAAR COMMUNICATIONS PLC v. MCKEE

(2022)LCN/16310(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Monday, June 20, 2022

CA/A/694/2016

Before Our Lordships:

HammaAkawuBarka Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Bature Isah Gafai Justice of the Court of Appeal

Between

DAAR COMMUNICATIONS PLC APPELANT(S)

And

MR. EGYPT MCKEE (Trading Under The Name And Style Of North Star Group Of Companies) RESPONDENT(S)

RATIO:

THE RULES OF COURT ARE MEANT TO BE OBEYED

Pursuant to the above settled position of the law, I am inclined in toeing the path set by the apex Court, and to hold that the non-compliance with the Oaths Act with respect to exhibits WS1 and WS2 is a mere irregularity, and the lower Court was right to have so held. Indeed, rules of Court are meant to be obeyed, there is no doubt about that, there is however a caveat, it is that rules of Court do not hold us by the nose. It should never make Courts slaves to rules, as the trending position of the Courts is to ensure that justice is not only done, but that it is seen to have been done even by the layman on the street. The era of technicalities, or scouting for the leg of a snake has been long discarded. Courts are set up to do substantial justice and in pursuit of substantialjustice all forms of technicalities must be avoided as much as possible and all claims investigated and determined on the merit.
Ekpenetu vs. Ofegobi (supra), Abubakar vs. Yar’adua (2008) 4 NWLR (pt. 1078) 465, Izedonmwen vs. UBN Plc (2012) 6 NWLR (pt. 1340) 1, Oloruntoba-oju vs. Abdul-Raheem (2009) 13 NWLR (pt. 1157) 83. HAMMA AKAWU BARKA, J.C.A

THE CONCEPT OF WAIVER NEED NOT BE PLEADED BUT CAN BE INFERRED OR IMPLIED AFTER EXAMINING THE CONDUCT OF THE PARTY

Waiver carries some element of the abandonment of a known legal right. It connotes that situation where a party by his conduct, gives a clear impression that he is not ready to pursue his legal right in the matter. He may not say so in specific words, but once his conduct shows that trend, the law will hold that he has waived his right. See Maiyegun vs. Gov. Lagos State (2011) 2 NWLR (pt. 1230) 154, Carribean Trading Fidelity Corporation vs. NNPC (1992) 7 NWLR (pt. 252) 161. The concept of waiver need not be pleaded; but can be inferred or implied after examining the conduct of the party, and it is sufficient if the party relying on it relies on the other parties’ abandonment of his right to complain. See Maiyegun vs. Gov. Lagos State (supra) at 154. HAMMA AKAWU BARKA, J.C.A

THE PARTIES AND COURT ARE BOUND BY THE TERMS OR CONDITIONS IN A CONTRACT

It is the immutable position of the law, that where parties voluntarily enter into an agreement and willingly endorse terms therein, such terms must be honored, and Courts have that duty of seeing to it that nothing is read into an express agreement terms in which parties were not in agreement. See Williams vs. Williams (2014) 15 NWLR (pt. 1430) 213, SCOA (Nig) Ltd vs. Bourdex Ltd (1990) 3 NWLR (pt. 138) 380. That is to say, those parties to any contract and the Court are bound by the terms or conditions in a contract between the contracting parties and the Court is without power to add to, subtract or redefine or deviate from the terms neither are the parties permitted to unilaterally alter them. See UBN Ltd vs. B.U. Umeh& Sons (1996) 1 NWLR(pt. 426) 565, Golden Counst. Co. Ltd vs. Stateco (Nig) Ltd (2014) 8 NWLR (pt. 1408) 171, Bilante Intl Ltd vs. NDIC (2011) 15 NWLR (pt. 1270) 407. This issue is likewise resolved against the appellant. HAMMA AKAWU BARKA, J.C.A

THE POSITION OF THE LAW ON THE OBJECT OF AWARDING DAMAGES FOR BREACH OF CONTRACT

The position of the law on award of damages for breach of contract is as stated by the Supreme Court in the case of Universal Vulcanizing (NIG) Ltd vs. Ijesha United Trading and Transport Co. Ltd & Ors (1992) 9 NWLR (pt 266) 388:

“The object of awarding damaging for breach of contract is to put the injured party so far as money can do it, in the same position as if the contract had been performed. The injured party cannot get more in damages than the loss which he has suffered. In fact, the injured party may sometimes even get less than the loss he had suffered under the exclusion principle of remoteness of damages as laid down in Hadley vs. Baxendale (1854) EX 341…. Therefore if the party injured had suffered or proved no loss, he may win his action as in this case, because breach of contract is actionable per se, but he will get only nominal damages”
Also in United Bank for Africa Plc vs. BTL Industries Ltd (2007) 2 FWLR (pt. 360) 1647, where the Supreme Court still emphasized that:
“The essence of damages in breach of contract cases is based on restitution 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”. HAMMA AKAWU BARKA, J.C.A

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Hon. Justice O.A. Adeniyi of the High Court of the Federal Capital Territory, sitting in Apo — Abuja, delivered on the 9th day of June 2016. In the said judgment located at pages 219—277 of the record, the Court concluded that:
“In the final analysis, I hold that the plaintiff’s case succeeds material substance. I hereby award in his favor against the Defendant, the sum of $150,000.00 (One Hundred and Fifty Thousand USD only, as general damages for the Defendant’s breach of the Consultancy Agreement entered into by the two parties on 28th May, 2010. I make no further orders as to costs”.

The gist of the appellant’s case appears to have been adequately summarized by the Court below thus:
”The plaintiff is an expert and consultant in software development and management support services, particularly in the media and entertainment industries. On 28th May, 2010, he executed a consultancy agreement with the 1st Defendant, which engages mainly in media business, to provide corporate marketing, senior management support, digital media content management, inter alia, for the 1st Defendant. He alleged that the 1st Defendant breached a fundamental term of the consultancy contract and therefore took out a Writ of Summons and Statement of Claim filed in this Court on 01/02/2013, whereby he claimed against the Defendants, jointly and severally, the reliefs set out as follows:
1. The sum of $1,000,000.00 (One Million Dollars) USD, being special damages for breach of contract, an amount due under the contract to him but lost as a result of the breach occasioned by the Defendants.
2. The sum of $10,000,000.00 (Ten Million Dollars) USD, being general damages for breach of contract by the Defendants.
3. Being a total claim of $11,000,000.00 (Eleven Million Dollars) USD being damages for breach of contract made against the Defendants.

The Defendants denied the Plaintiff’s claim and joined issues with him by filling a statement of defense on 15/11/2013. Subsequently, the Plaintiff filed a reply to the Defendants’ statement of defense on 20/11/2013. Issues having been joined the case proceeded to trial, whereat the Plaintiff testified in person by adopting his written depositions and also tendered three (3) documents in evidence, and was subjected to cross-examination.

The Defendants in turn called one witness, Teresa Popoola (Miss), a staff in the legal department of the 1st Defendant. This witness also adopted her written deposition and tendered ten (10) documents in evidence, and was subjected to cross-examination by the Plaintiff’s learned Counsel.

At the close of trial, written addresses were ordered, filed and adopted, setting the stage for the vexed judgment delivered on the 9th of June, 2016.

Aggrieved with the decision of the Court of trial, appellant filed a notice of appeal on the 8th of September, 2016 predicated on ten grounds of appeal. The lower Court dutifully compiled and transmitted the record of appeal on the 9th of December, 2016 deemed properly transmitted on the 21st of January, 2021. Appellant thereafter filed a brief of argument on the 27th of August, 2018 also deemed properly filed on the 21st of January, 2021. He further filed the amended appellant/cross respondent’s brief of argument, on the 24th day of March, 2022, and when the appeal eventually became due for hearing, the learned counsel appearing for the appellant/cross respondent, identified the processes filed, adopted the same and urged the Court to allow the appeal, and also refuse the cross-appeal.

In opposing the appeal, the learned counsel for the respondent Mr. Chidel Onuora, transmitted additional records on the 8th of May, 2019, and on the 21st of May, 2019, filed a notice of cross-appeal, deemed properly filed on the 31st of January, 2022. Respondent also filed a brief of argument on the 1st of March, 2021, deemed as having been properly filed on the 31st of January, 2022. The respondent also filed a respondent/cross appellants reply on the 2nd of July, 2021, though deemed filed on the 31st of July, 2022. On the same hearing date being the 24th of March, 2022, the learned counsel appearing for the respondent/cross-appellant adopted all the processes filed and relying on same urged the Court to dismiss the appeal and thereby allow the cross-appeal.

In the brief settled by M.O. Obhahinmejele, the learned counsel appearing for the appellant, three issues were identified for the resolution of the appeal as follows:
i. Whether it was right of the learned trial Judge to overlook the respondent’s written statements of non-compliance with the provisions of the Oaths Act because of the contemporary trend and bias of our Courts for doing substantial justice over narrow technical justice.
ii. Having regard to the peculiar facts and circumstances of this case, was the learned trial Judge right to hold that the appellant breached fundamental terms of the consultancy agreement of 28th May 2010 between her and the respondent, even when the respondent clearly waived his right to insist on enforcement of the said contract terms.
iii. Whether the learned trial Judge in assessing damages was right to take into account irrelevant and inappropriate factors and generally proceed on wrong principles of law in awarding the sentimental, punitive, wholly erroneous, inordinately high and excessive sum of $150,000.00 (One Hundred and Fifty Thousand dollars) to the respondent as general damages.

On the other hand, the following issues were identified for the resolution of the appeal by the respondent:
i. Whether respondent’s claims in this suit are supported by evidence.

ii. Whether it could be said that in the circumstances of the pleading and evidence in this case that respondent waived his right to insist on his strict legal rights created under the contract of 28th May, 2010 which appellant had breached.
iii. Whether the trial lower Court would come to the conclusion as he did that respondent suffered no substantial loss in that he had taken no steps in the performance of the contract and awarded in that discretion the not substantial sum of $150,000.00 (one hundred and fifty thousand dollars) if he had considered many other relevant factors to entitle respondent to general damages in a substantial sum.

In the determination of the appeal therefore, I elect to be guided by those issues which in the estimation of the appellant’s counsel will determine the appeal. My reason for doing so is based on the singular fact that appellants are the complainants, and accordingly would view the appeal in the eye of their complaint.

ISSUE ONE.
Whether it was right of the learned trial Judge to overlook the respondents written statements non- compliance with the provisions of the oaths Act because of the contemporary trend and bias of our Courts for doing substantial justice over narrow technical justice.
The learned counsel for the appellant commenced his submission by alluding to exhibits WS1 and WS2, being written witness statements, though bereft of the format prescribed in the 1st Schedule to the Oaths Act, Cap. 01, Vol. 12, Laws of the Federation 2004 was adopted before the lower Court. He drew the attention of the Court to an application filed by the respondent on the 26th of November, 2015 seeking to correct the witness statement, contending that the net effect is that there being no verification or any form of attestation or act of swearing whatsoever in the purported written statements, a total non-compliance with the Oaths Act, was occasioned, and by the provision of Order 4 Rule 15, rendered the written witness statement incompetent. He referred to the case of G.E. International Operations Ltd vs. Q-Oil & Gas Services (2015) 1 NWLR (pt. 1440) 244 at 270 and submitted that the purport of Order 4 Rule 15 of the Rules governing the trial Court is that the statements be on oath. He sought the support of the decision of this Court in Obumneke vs. Sylvester(2010) ALL FWLR (pt. 506) 1945) at 1957-1958 to contend that the two statements not having been made on oath should be discountenanced.

Learned counsel then drew the attention of the Court to decisions of this Court and the apex Court wherein it was held that Courts are prepared to forgive minimal non-compliance with the provisions of the Oaths Act, but argued that by the authority of Obumneke vs. Sylvester (supra), the failure to comply with the provisions of the Oaths Act rendered the witness statement defective and liable to be discountenanced. Learned counsel goes on to contend that having impugned the written witness statements of the respondent, the concomitant result is that respondent did not prove that appellant violated a fundamental term of the contract between them. Also alluding to the decision of the lower Court at pages 239-241 of the record, learned counsel faulted the decision of the Court to the effect that once objection is raised about non-compliance by a party to the provisions of a statute, such is regarded as a technicality drowned in the trends of doing technical justice, but that non-compliance with theprovisions of a statute is not a matter of technicality, but that of substantive law. Reliance was placed on the case of Ekpenetu vs. Ofegobi (2012) LPELR—9229 (CA). Learned counsel then went on to examine the cases of Ekpenetu vs. Ofegobi (supra), Buhari vs. INEC (2008) 19 NWLR (pt. 1120) 246 at 377—378, Akaninwo vs. Nsirim (2008) AFWLR (pt. 419) 610 at 657, positing as held therein that:
“A Judge cannot involve himself in doing justice in a case where a statute is clear and unequivocal on a point. In such a situation, the Judge must bow or tow to the statute because his main hire is to interpret the statute”.

He goes further to submit that the non-inclusion of oaths in the written statements of the respondent is a fundamental defect touching the root of the statements and thereby rendering them invalid and useless, besides, rules of Court are meant to be obeyed, and in conclusion urged the Court to resolve the issue in favor of the appellant.

Learned counsel for the respondent, responded thereto under issue one framed as; whether respondent’s claims in this suit are supported by evidence. Learned counsel for the respondentsubmits that the lower Court did consider the fact that the declaration that the statement therein in respect of WS1 and WS2 were made conscientiously believing them to be true in accordance with the Oaths Act as prescribed in the 1st Schedule of the Oaths Act, attaches merely to form as against substance. He submits also that the lower Court held that PW1 having sworn in Court before adopting the statements, preferred to follow the judicial trend of doing substantial justice, as against technical justice. He submits still that since the case of Ekpetu vs. Ofegobi (supra), which examined the decision of Obumneke vs. Sylvester (supra), the Courts have been consistent in their stance that where there has been substantial compliance with the Oaths Act, the document should not be declared invalid. He alluded to the cases of Majekodunmi & Ors vs. Ogunseye (2017) LPELR—42547 (CA) and Dasofunjo vs. Ajiboye (2017) LPELR-42547 (CA), where this Court held that irregularity in the form or any defect in the oath or non-compliance with the Oaths Act will not invalidate proceedings in a suit. He then made reference to the holding in the case of Dasofunjo vs. Ajiboye (supra) as well as the Supreme Court decision in Anatogu vs. lweka (1995) 8 NWLR (pt. 415) 457, contending that such must be the intendment of the provisions of Section 4 (2) and (3) of the Oaths Act, and further that the cases cited by the learned counsel for the appellant no more represents the state of the law and/or are distinguishable from the present case.

He goes on to submit that appellant’s contention that the respondent breached Order 4 Rule 15 of the rules of the trial Court for failure to accompany the writ with valid statements on oath cannot be true. It was also the submission of the learned counsel that even where the contention of the appellant with regards to the alleged breach of Order 4 Rule 12 of the rules governing the trial Court, it was contended that the objection bothers on the breach of the rules of Court as against its admissibility and therefore ought to have been timeously raised.

On the contention that where WS1 and WS2 are struck out there would be no evidence led in support of the pleadings, learned counsel alluded to the abundant evident oral and documentary evidence admitted at trial, and relying on the case ofSpasco Vehicle & Plant Hire Co. Ltd vs. Alraine (Nig) Ltd(1995) 8 NWLR (pt. 416) 655 SC, submit that it cannot be said that respondent’s pleadings is unsupported by evidence, nor can it be also stated that without the jurat or declaration in the format prescribed by the Oaths Act in WS1 and WS2 constitute a violation of Order 4 Rule 15 of the rules. He urged the Court to align itself with the decisions of the Apex Court in Anatogu vs. lweka II (supra) and Solola vs. State (supra) and thereby resolve the issue in favor of the respondent.

This issue once more brings to fore, the contentious issue of the intendment of the law with regards to non-compliance with the Oaths Act Cap 01, vol. 12 Laws of the Federation of Nigeria 2004.

For whereas it is the contention of the learned counsel for the appellant, that non-compliance works against the competence of the document, the learned counsel for the respondent argues contrariwise contending that the non-compliance amounts to an irregularity which should not deny the consideration of the document.

It is evident from the record, that the two documents marked as WS1 and WS2, which documents wereadopted in evidence on the 20th of November, 2013, located at pages 6-9 and 43-44 of the record do not strictly conform with the 1st schedule to the Oaths Act. That is to say that there is no dispute at all that the aforementioned documents are bereft of the format prescribed in the first schedule to the Oaths Act, being that the exact words in the said schedule are lacking. Learned counsel for the appellant now argues that the net effect of that lapse on the part of the respondent in the two statements means that or rendered the two statements incompetent being in breach of the stipulations of Order 4 Rule 15 of the High Court of the Federal Capital Territory (Civil Procedure) Rules 2004, which spelt out that for a writ of summons to qualify for filing, it must be accompanied by a statement of claim, copies of the documents mentioned in the statement of claim to be used in evidence, witness statement on oath and a certificate of pre-action counseling. In the consideration of the arguments postulated by the learned counsel, which arguments are not new, I seek to refer to the decision of my brother Omoleye, JCA, inEkpenetu vs. Ofegobi & Ors (2012) LPELR-9229 (CA), relying on the case of Ogwuegbu vs. Agomuo (1999) 1 NWLR (pt. 609) 144 at 168 to the effect that:
“I believe that the form prescribed in the 1st schedule is expected to serve as a guide as to the form an acceptable oath within the provisions of the Oaths Act should take. The form prescribed in my view is not expected to be rigidly followed word for word, or letter by letter. I believe also that there is substantial compliance with the requirement of the Act… I reiterate that failure of a deponent to comply with the format prescribed in the Oaths Act could render an affidavit defective and incompetent, however where there is substantial compliance with the provisions of the Oaths Act as in this case, an affidavit would not be declared incompetent”
A firmer decision on the issue was that in Ojibara & Ors vs. Governor of Kwara State &Ors (2004) LPELR-13002 (CA) per Onnoghen, JCA as he then was. The erudite jurist held the view that:
“It is my view that an affidavit which is said not to comply with the provisions of Section 13 of the Oaths Act is merely defective in form not in substance. It is my view that any mission to include the words stated in that section will not in the absence of any fundamental defect as to substance, render the affidavit invalid, since the omission of the words will only affect the form in which the affidavit is presented”
It is in the heels of these decisions that in Mrs. Ayoola Adetoyi Dasofunjo vs. Alhaja Rukayat Titilayo Ajiboye (supra), the question was posed, whether the learned trial Judge was right to have relied solely on the failure and/omission by the defendant/appellant to comply with the provisions of Section 1, 2, 13 and the 1st Schedule to the Oaths Act, to enter judgment without considering the depositions therein, reasoned that:
“Clearly the position advanced by Chief Oguntoye, which the lower Court followed seems to be in consonance with the decision of NNB Plc vs. IBWA ENT. Ltd (1998) 6 NWLR (pt. 554) 446 at 455, where it was held that “where an affidavit fails to comply with the 1st Schedule to the Oaths Act, the affidavit is incompetent. Consequently, the motion papers to which the affidavit are attached in a case has no valid supporting affidavit and becomes incompetent”
Ogunwumiju JCA as he then was in the more recent case of Uduma vs. Arunsi (2012) 7NWLR (pt. 1298) 55 at 97-98 revisited the authorities on the subject including the case of NNB Plc vs. IBWA Ent. (supra), the interpretation given by the Apex Court in the case of Anatogu vs. lweka II (supra) and Solola vs. The State (supra) and conclusively arrived at the decision that:
“the Court or Judge in chambers may receive any affidavit sworn to for the purpose of being used in any cause or matter notwithstanding any defect by mis-description of parties or otherwise in the title or jurat or any other irregularity in the form thereof, and may direct a memorandum to be made on the document that it has been so received”.
Hitherto the Supreme Court in the case of Anatogu vs. lwekall (supra) per Uwais, JSC, the learned jurist referred to the provisions of Section 4(3) of the Oaths Act and held that; since by these provisions the evidence of Pw1 is to be taken to have been given as if under Oath, in other words as if he had been sworn, then no miscarriage of justice has been occasioned by the omission to administer the oath or affirmation. The clear import of the above decision clearly points to the fact that the substance as against the form, should weigh more in the mind of the Court in its guest at attaining justice. This thinking was also echoed by my learned brother, Ugo JCA, in the case of Aduloju vs. Adejugbe & 1 or (unreported) in appeal No. CA/EK/65/2014, delivered on the 4th of November, 2015, wherein, he was of the view that; “I do not also think that non-compliance of the appellant’s witness statement with the form of the 1st Schedule of the Oaths Act is such a fundamental vice that renders it completely defective. I think the provisions of Section 4 (2) and (3) of the Oaths Act are clear on it to the effect that no irregularity in the form of an oath shall invalidate proceedings in any Court or render inadmissible evidence in respect of which an irregularity took place in the proceedings”.
Further still, my brother Senchi JCA, in the recent case of Aso Savings and Loans Plc vs. Mr Uzoma Iwunamara (2021) LPELR-55878(CA), also considered, and examined the discordant opinion held in GTB vs. Abiodun (2017) LPELR-42551 (CA), but finally relied on the decision of Ojibara & Ors vs. The Governor of Kwara State(2004) LPELR-13002(CA), in concluding that the deponent having substantially complied with the Oaths Act, the document cannot be invalidated. I have in the circumstance taken time to examine all these permutations, and my humble view is that the law must bow to the superior guidance, posited in the decision of the Apex Court in Monsuru Solola & Anor vs. The State (supra), wherein it was emphatically decided that:
“By Section 4(3) of the Oaths Act, the failure to administer oath on a witness before giving evidence is a mere irregularity which does not affect the decision arrived at on that evidence unless it has been shown to occasion a miscarriage of justice. See the case of Anatogu vs. lweka II (1995) 8 NWLR (pt. 415) 547”.
I am in the circumstance, in full agreement with the decision on the point elaborated in the case of Iloka vs. Edokwe&Ors (2016) LPELR-41027 (CA), wherein it was held that:
“although Section 205 of the 2011 Evidence Act provides that oral evidence given in any proceedings must be given upon Oath, affirmation administered in accordance with the Oaths Act or Law as the case may be, the Supreme Court in Anatogu vs. lweka (supra) has held that the failure to take oath or make an affirmation shall not affect its admissibility and probative value and that such testimony shall be deemed to have been given as if under oath unless it can be shown that a party has suffered a miscarriage of justice as a result of the omission or failure to administer the oath or affirmation before the testimony”.
Pursuant to the above settled position of the law, I am inclined in toeing the path set by the apex Court, and to hold that the non-compliance with the Oaths Act with respect to exhibits WS1 and WS2 is a mere irregularity, and the lower Court was right to have so held. Indeed, rules of Court are meant to be obeyed, there is no doubt about that, there is however a caveat, it is that rules of Court do not hold us by the nose. It should never make Courts slaves to rules, as the trending position of the Courts is to ensure that justice is not only done, but that it is seen to have been done even by the layman on the street. The era of technicalities, or scouting for the leg of a snake has been long discarded. Courts are set up to do substantial justice and in pursuit of substantial justice all forms of technicalities must be avoided as much as possible and all claims investigated and determined on the merit.
Ekpenetu vs. Ofegobi (supra), Abubakar vs. Yar’adua (2008) 4 NWLR (pt. 1078) 465, Izedonmwen vs. UBN Plc (2012) 6 NWLR (pt. 1340) 1, Oloruntoba-oju vs. Abdul-Raheem (2009) 13 NWLR (pt. 1157) 83.
It seems to me, that reverting to the argument posited by the learned appellant’s counsel at this stage, would be unsupportable, the witness before adopting his deposition having sworn before the Court, identified the processes and was cross-examined on same by the learned counsel for the respondent. The defense put forward by the appellant was also hinged and against the witness evidence given in the deposition. See NUB Ltd vs. Samba Pet. Co. Ltd (2006) 12 NWLR (pt. 993) 98, Anyanwoko vs. Okoye(2010) 5 NWLR (pt. 1188) 497. The trial Court in the circumstance was therefore right to have rejected the belated complaint having partaken in the proceedings. In any case, the contention by the learned counsel for the appellant that Order 4 Rule 15 of the High Court of the Federal Capital Territory (Civil Procedure) Rules 2004 had been breached is not maintainable. This issue is resolved against the appellant.

ISSUE TWO.
Having regard to the peculiar facts and circumstances of this case, was the learned trial Judge right to hold that the appellant breached fundamental terms of the consultancy agreement of 28th May 2010 between her and the respondent, even when the respondent clearly waived his right to insist on enforcement of the said contract terms.

It was submitted that the consultancy agreement between the parties admitted as exhibit P3 was to commence on the 12th day of July, 2010, but prior to the commencement date, appellant intimated the respondent of his inability to so commence due to funding challenges. He submits that contrary to the assertion of the respondent that he did not hear from the appellant one year after the execution of the contract agreement, respondent had on the 2nd of July, 2010 sent an email acknowledging a change in the startup date. That by the respondent’s conduct, even though he waited endlessly, did not terminate the contract as provided for by clause 8(b) of exhibit P3. He maintains that respondent waived his right to insist on the commencement date through exhibits D1, D2, D4 — D9, and argued that the conclusion by the trial Court that at nowhere in any of the mails tendered by the DW1 was the issue of the commencement date of the contract mentioned erroneous, as one of the emails is enough to indicate waiver, which could be oral, written or inferred. He urged the Court to re-evaluate the exhibits which evinced the respondent’s intention to extend the timeline for the commencement of exhibit P3 ad infinitum, and submits that the respondent cannot purport to resile from the position he had taken of waiving his right to insist on the original commencement date of exhibit P3 when he waived same without giving adequate notice to the appellant of his intention to do so and accordingly urged the Court to resolve the issue in favor of the appellant.

Responding, learned counsel for the respondent positing on whether it could be said that in the circumstance of the pleadings and evidence in this case that respondent waived the right to insist on his strict legal rights created under the contract of 28th May, 2010 which appellant had breached, argued that appellant’s contention iswithout basis having not joined issues on the point. He contended that the claim is neither supported by the state of pleadings or evidence, particularly exhibits D1—D9 which consists of the respondent’s consistent inquiry as to the status of the contract as correctly found by the trial Court. He contends also that payment from the Federal Government was never contemplated by the parties as a condition precedent to the fulfillment of appellant’s obligation to pay the respondent fifty percent of the contract sum within 30 days in advance from the date of execution, which is the 28th of May, 2010. He argued that the circumstance of the present case, falls short of the requirements of Section 169 of the Evidence Act, and while the common law principle of promissory estoppels will prevent a party to a contract that has induced the other to act in a way relying on the promise, from going back on the promise such promise must be unequivocal, and a cursory examination of exhibits D1—D9 can hardly meet this requirement. He argued that by clause 17 of exhibit P3, the requirement to amend the terms of the contract would require the reduction of such intowriting. He then argued that where the terms of a contract is reduced into writing by the parties, no oral evidence is permitted varying, modifying or contradicting it save in few circumstances. The case of Olaloye vs. Balogun (1990) 5NWLR (pt. 148) 14 was relied upon. He argued that even if it were to be conceded that exhibits D1—D9 constituted a promise to await the commercial convenience of the appellant in commencing the implementation of the contract, such class of waiver being suspensory of the rights of the innocent party to resume his strict legal rights, the right will be resumed upon a notice to the offending party which need not be formal, and for this learned counsel relied on the case of Temco Engineering & Co Ltd vs. Savannah Bank Ltd (1995) 5 NWLR (pt. 397). He argued that by exhibit D7 and D8, the respondent by notice sought to bring the matter to a closure formally declaring a breach and the attendant damages after the appellant had refused to settle the matter by arbitration. He referred to clause 17 of exhibit P3 on how any part of the agreement can be amended, and alluded to the resolution of the issue by the lower Court stating that the notice by exhibit P2 declaring breach is valid notice for the resumption of the valid rights of the respondent to sue for the breach of exhibit P3.

The lower Court examined the issue in its judgment, and conclusively came to the decision that:
“I had carefully considered the email messages that were contained in exhibits D1, D2, D4, D5, D6, D7 and D8, which according to the defendant’slearned counsel constituted the waiver granted by the plaintiff to defer the commencement of the contract until the defendant was economically viable. It is only in exhibit D1 that there is a semblance of reference to amendment of the commencement date of the agreement. The mail was written by the plaintiff on July 7th, 2010 to one of the representatives of the defendant. In view of its material importance to the resolution of the issue at hand, I take the liberty to reproduce exhibit D1 as follows:
“Philip,
Thank you for providing me with an update on the status of our contract. I will continue to await your instruction regarding next steps in amending the contract start date. Please let me know if you require any additional information from me? I look forward to hearing from you again soon…
Best Regards
Egypt Mckee.”

Apart from this mail nowhere in any of the other mails tendered by the DW1 is the issue of the amendment of the commencement date of the contract mentioned. The plaintiff wrote those mails more or less to keep the defendant on her toes and to make inquiries consistently as to the status of the contract.

As correctlypointed out by the plaintiff’s learned counsel, the agreement, Exhibit P3 expressly provided for the manner in which the contract could be amended. Learned counsel referred to clause 17 thereof which provides that the agreement shall not be modified in any form and that any proposed amendments to the contract shall be reduced into writing and signed by both parties to the contract.

It is apparent that the defendant did not tender any document signed by both parties to show that there was an agreement between the two parties at any time to amend the commencement date of the agreement or vary or postpone the agreement in the absence of any such mutually endorsed written document. The document exhibit D1 or any of the other documents tendered by the defendant for that matter could not by any stretch of imagination of interpretation be said to constitute an agreement by the plaintiff to alter the commencement date of the agreement and as such the issue of waiver upon which the equitable principle of promissory estoppels is canvassed by the defendant’s learned counsel did not arise in the circumstances of this case, I so hold.

I am therefore unable to agreewith the extremely wide and wild interpretation learned defendant’s counsel accorded exhibit D1 to mean that the plaintiff had granted a waiver on his own volition to the defendant to amend or extend the commencement date of the contract indefinitely. These arguments were not supported by evidence led on the record. I therefore reject the totality of the arguments canvassed by the defendant’s learned counsel on the issue of waiver.

I must further hold that the fact of the supervening event of the non-payment by the Federal Government of Nigeria, of the money due to the defendant for featuring at the under 17 FIFA tournament, which according to the defendant’s learned counsel hindered the immediate attainment of the purposes the parties had in mind to execute Exhibit P3 cannot be an excuse for breach of the clear terms of the contract. This is so in that parties are bound by the terms of their own contract and for the fact that parties did not make the issue of the FIFA payment as a condition precedent to the commencement of the contract. The defendant cannot rely on such an excuse to avoid her obligation under the contract, and I so hold.

I havecarefully examined the documents relied upon by the appellant with regards to the inference that the respondent had waived his legal interest with regards to the commencement date of the contract, most specifically exhibits P3, P2, D1, D2, D4, D5, D6, D7 and D8, and I must agree with the lower Court, that at nowhere was it indicated that respondent waived his legal right mutually agreed upon by the parties in exhibit P3.

ISSUE THREE.
Whether the learned trial Judge in assessing damages was right to take into account irrelevant and inappropriate factors and generally proceed on wrong principles of law in awarding the sentimental, punitive, wholly erroneous, inordinately high and excessive sum of $150,000.00 (One Hundred and Fifty Thousand dollars) to the respondent as general damages.
The submission of the learned counsel herein turns on whether the lower Court was wrong to have awarded the sums of $150,000.00 (One Hundred and Fifty Thousand dollars) damages on the ground that the award was arbitrary and capricious. The respondent on the other hand is displeased with the assessment of the damages awarded, contending that the assessment ought to have been the pecuniary loss fairly and reasonably arising naturally from the breach of the contract. The lower Court at page 259 of the record rightly in my view came to the conclusion that the appellant as defendantbreached the contract agreement entered into by the parties on the 28th day of May, 2010, having failed or refused to pay the respondent 50% of the contract sum of One Million Dollars within 30 days of the commencement of the agreement with which the respondent was to deploy in kick starting the execution of the contract. The lower Court from the preceding pages of the judgment, specifically from pages 264—276, gave due consideration to the damages claimed by the respondent as plaintiff. His view upon the total evaluation of the evidence given on the issue is that the only injury suffered by the respondent was that defendant denied him the opportunity to demonstrate his professional skills on the basis of the agreed objectives of the contract, defendant having admitted that he was highly recommended to undertake the job, and further of the view that respondent could have recorded a measure of gain which he estimated at one Hundred and Fifty Thousand dollars.

It has been held that a breach of contract connotes that the party in breach acted contrary to the terms of the contract either by non-performance, or by performing the contract not in accordancewith the terms or by a wrongful repudiation of the contract. See Pan Bisbilder (Nig) Ltd vs. First Bank of Nigeria Ltd (2000) FWLR (pt.2) 177, Saidu H. Ahmed &Ors vs. CBN (2012) LPELR-9341 (SC).

The lower Court therefore having established that a fundamental term of the contract between the parties was breached by the appellant, which finding is supported by the evidence, the contention by the appellant that he was not in breach cannot be entertained, and the consequence is like that expressed by the apex Court in the case of Bilante International Ltd vs. NDIC (2011) 15NWLR (pt. 1270) 407, having stated that damages follow breach of contract and is payable by the party responsible for the breach, and in this case the appellant. The position of the law on award of damages for breach of contract is as stated by the Supreme Court in the case of Universal Vulcanizing (NIG) Ltd vs. Ijesha United Trading and Transport Co. Ltd &Ors (1992) 9 NWLR (pt 266) 388:

“The object of awarding damaging for breach of contract is to put the injured party so far as money can do it, in the same position as if the contract had been performed. The injured partycannot get more in damages than the loss which he has suffered. In fact, the injured party may sometimes even get less than the loss he had suffered under the exclusion principle of remoteness of damages as laid down in Hadley vs. Baxendale (1854) EX 341…. Therefore if the party injured had suffered or proved no loss, he may win his action as in this case, because breach of contract is actionable per se, but he will get only nominal damages”
Also in United Bank for Africa Plc vs. BTL Industries Ltd (2007) 2 FWLR (pt. 360) 1647, where the Supreme Court still emphasized that:
“The essence of damages in breach of contract cases is based on restitution 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”.

Whereas the appellant wants the Court to assess the award downwards, the respondents wants an upward review all contending that the lower Court failed to take into consideration certain considerations weighing in their favor. Generally, the quantum of damages to be awarded is purely at the discretion of the trial Judge and unless it is shown thatthe Court breached certain laid down guidelines, an appellate Court shall be slow to interfere. See, Oyeneyin& Anor vs. Akinkugbe& Anor (2010) LPELR—2875 (SC), Ejiro vs. Ochai&Ors (2021) LPELR—54190 (CA). In other words, as contended by the learned counsel based on the decisions in Shell BP Petroleum Co. Nig. Ltd vs. Pere Cole (1978) 3SC 183 @ 194, Tsokwa Motors Nig. Ltd vs. Awoniyi (1999) 1 NWLR (pt. 587) 423, that an appellate Court will interfere with the decision of the trial Court where there is ample evidence, which the Court of trial failed to properly evaluate and to thereby make proper findings on same. In such a situation the Court of Appeal can appropriately interfere and make a justifiable award, most especially where the trial Court applied wrong principles of law, like taking into account some irrelevant facts or leaving out relevant facts, or that the amount awarded is inordinately high or low. See Daniel Okonkwo vs. Fred Ogbogu& Anor (1996) LPELR (SC).

I have earlier referred to the evaluation of the evidence led by the parties on the issue from pages 259 of the record to 276. I find that the lowerCourt in coming to the conclusion that the award of One hundred and fifty thousand Dollars be awarded in favor of the respondent took into consideration all the minor issues in detail, evaluated the pieces of evidence before arriving at the award. Having carefully and minutely studied all the pieces of evidence led, I am satisfied that the lower Court exercised his discretion in the matter judiciously and accordingly see no reason to interfere with same. This issue is also resolved against the appellant.

Having resolved all the issues against the appellant, the appeal fails and it is hereby dismissed by me. I make no order on costs.

CROSS APPEAL.
The respondent on the 2nd day of May, 2019 filed in a notice of cross-appeal deemed properly filed on the 31st of January, 2022, predicated upon a sole ground to wit, that the lower Court erred in the finding that Plaintiff/Cross-Appellant’s loss would not be substantial in that he had taken no steps of his own in the execution of the contract in anticipation of the payment of the contract sum as agreed. The particulars supporting the ground of appeal are listed as follows:
i. In the assessmentof damages for breach of contract the expectation interests are taken into account in the principle that the innocent party should be put in the position he would have been had the contract been performed.
ii. Plaintiff was prevented from taking steps in the performance of the contract resulting from the breach by the defendant/appellant.
iii. The requirement under the principle restituo integrum takes account of expectation interests of the innocent party and it will therefore not matter as wrongly found by the trial lower Court, whether or not steps had been taken in the performance of the contract to award substantial damages to the innocent party in a breach of contract action.

The cross-appellant also transmitted additional records on the 8th of May, 2019. The Respondent/Cross Appellant’s amended brief of argument was filed on the 1st of March, 2021, while the Respondent/Cross Appellant’s reply brief was filed on the 2nd of July, 2021. Both the cross appellant’s brief and the reply brief were deemed filed on 31/1/2022. The respondent filed the 1st amended Appellant/Cross respondents brief of argument on 18/6/2021. On the same 24th ofMarch, 2022, the learned counsel representing the parties adopted the briefs filed, and while the cross-appellant urged the Court to allow the cross-appeal, vary the award and increase it upwards, on the premise that what was awarded was inordinately too low, and thereby occasioned a miscarriage of justice, the cross respondents is of the view that the cross-appeal be dismissed.

In the estimation of the learned counsel for the cross-appellant, a lone issue arises for resolving the appeal as follows:
Whether the trial lower Court would come to the conclusion as he did that Respondent/cross Appellant suffered no substantial loss in that he had taken no steps in the performance of the contract and awarded in that discretion the not substantial sum of One Hundred and Fifty Thousand dollars if he had properly considered the principle for award of general damages in a breach of contract case to put the innocent party in the position he would be had the contract been performed and not breached, by taking cognizance, both of expectation and reliance interests as well as the many other relevant factors to entitle Respondents/Cross-Appellant to generaldamages in a substantial sum.

The learned counsel for the cross respondents is comfortable with the issue crafted and accordingly adopted the same.

Mr. Onuora, the learned counsel for the cross-appellant argued the lone issue from pages 27—36 of the brief, which aggregates to his finding fault with the lower Court on the holding that the cross-appellant had not suffered any substantial loss and as a result awarded, what he termed the paltry sums of one hundred and fifty thousand dollars only.

Mr. Obhahinmejele of counsel for the cross respondent, submitted per contra on the issue in the brief filed by him and from pages 9—13 thereof, contending that the cross-appellant having waived his right to insist on the initial commencement date of the contract between the parties is not entitled to any award in the circumstance. I have hitherto treated the issues canvassed in the determination of the main appeal. I adopt my reasoning therein in respect of the cross-appeal, maintaining that whereas the main appeal for reasons stated therein is devoid of merit, also of the view that the settlement of the third issue in the main appeal takescare of the arguments herein. In the circumstance, the cross-appeal fails and it is also dismissed by me. I make no order on costs.
The cross-appeal is dismissed.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was privileged to read in draft, the decision of my learned brother, Hamman AkawuBarka, JCA, which has just been delivered.

I entirely agree with and do not desire to add to the said decision.
I adopt the entire decision as mine, with nothing more to add.

BATURE ISAH GAFAI, J.C.A.: I have before now read in draft, the judgment delivered by my learned brother Barka, JCA.

I am in agreement with the profound reasonings expressed therein and the conclusions expressed by my lord on both the main appeal and the respondent’s cross-appeal. I adopt those reasonings as mine; by which I too dismiss both the appeal and the cross-appeal and in consequence affirm the judgment of the lower Court.

Appearances:

M.O. Obhahinmejele For Appellant(s)

ChidelOnuora For Respondent(s)