DIRECT ON PC LTD v. SOF TECH LTD (2021)

DIRECT ON PC LTD v. SOF TECH LTD

(2021)LCN/15129(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Monday, March 08, 2021

CA/L/762/2010

Before Our Lordships:

Ita George Mbaba Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Between

DIRECT ON PC LIMITED APPELANT(S)

And

SOF TECHNOLOGIES LIMITED RESPONDENT(S)

RATIO

POSITION OF THE LAW WHERE A PROCESS OF COURT IS AMENDED

By law, the moment a process of Court is amended, the original process ceases to be valid or relevant, being replaced and subsumed in the new process (the amended Process), filed in the Court. See Ndukwe vs Ndukwe (2015) LPELR – 25604 (CA): “An amended process replaces and supersedes the original document meant to be corrected. See Ogwudire vs Ogegwe & Anor (2014) LPELR – 2365 CA. See also Registered Trustees of Airline Operators of Nigeria vs Nama (2014) LPELR – 22372 (SC) where the Apex Court held that upon amendment, the new process (Amended Process) takes effect from the date of the originating process, filed. This is because an amendment, duly made, takes effect from the date of the original document sought to be amended…” PER ITA GEORGE MBABA, J.C.A.

POSITION OF THE LAW ON THE DOCTRINE OF PRIVITY OF CONTRACT

… considering the doctrine of privity of contract, which holds that a stranger (one who is not a party to contract) cannot enforce it or stand liable for breach of same. See Rebold Industries Ltd Vs Magreola & ors (2015) LPELR- 24612 (SC): “I must state clearly that there is in the law of contract what is referred to as privity of contract. It is always between the contracting parties who must stand or fail, benefit or lose from the provisions of their contract. That is to say their contract cannot bind third parties nor can third parties take or accept liabilities under it nor benefit there under. See OGUNDARE VS OGUNLOWO (1997) 6 NWLR (PT. 509) 360; IKPEAZU VS ACB LTD (1965) NWLR 374-378… ” PER ITA GEORGE MBABA, J.C.A.

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this Appeal, as per the Amended Notice of Appeal of 17/2/11, filed with leave of this Court, against the judgment of the Lagos High Court in Suit No. ID/1032/2005, delivered on 30th March, 2010, whereof the trial Court granted the reliefs sought, in part, by awarding the sum of N4 Million as general damages against the Defendant (now Appellant).

At the trial Court, the Plaintiff (now Respondent) had sought the following reliefs, as per the amended statement of claim, dated 22/6/2006:
“The sum of N56,515,209.49, as per the Writ of Summon in the following particulars:
a) Special damages N47,515,209.49
b) General damages N4,000,000.00
c) General damages for inducement/procurement of breach of contract N5,000,000.00
d) Cost.
Total =N56,515,000.00 (sic)
(See pages 163 — 171 of the Records of Appeal)

The Appellant (as Defendant) had filed Amended Statement of defence, wherein it Counter-claimed, as follows:
“The sum of N5 Million, being special and general damages for injurious falsehood, unlawful interference with an

inducement of breach of the Defendant’s internet service, supply and maintenance contract with the British Council.”(See page 191 to 194 of the Records of Appeal)

After hearing the case and considering the evidence adduced and the addresses of Counsel, the trial Court had held for the Plaintiff (now Respondent), as follows:
“The general position of the law is to the effect that facts not controverted are deemed admitted and facts admitted need no further proof. In view of the fact that the Defendant having admitted that it posted invoices directly to the British Council upon which payments made in Exhibit D tendered by the Claimant were paid to the Defendant on the alleged sum claimed by the Claimant, I am of the opinion that the claimant has established its claim to the above sum to the satisfaction of this Court and the Defendant is therefore liable to the claimant on the above sum, by virtue of its admission.
Issue 3:
Whether the claimant has proved its entitlement to the claim of special damages and general damages.
The Claimant claimed that it is entitled to the sum of N56,515,209.49, broken down in the following particulars:

(a) Special damages = N47,515,209.49
(b) General damages = N4,000,000.00
(c) General damages for Inducement/procurement Of breach of contract = N5,000,000.00
(d) Cost
Total = 56,515,209.49
The claimant alleged that it is entitled to the claims for general damages and special damages; owing to the fact that it was as a result of the inducement/procurement of breach of its contract by the Defendant. However, in the instant case, it is a fact that the British Council vides a letter dated 7th February, 2005, tendered as Exhibit C, and (sic) terminated its contract with the Claimant, upon notice of its intention not to renew the claimant’s contract. The issues of breach of contract between the claimant and the British Council thereof, in my opinion, does not arise having validly terminated its contract with the claimant in accordance with the terms of their contract.
Damages for breach of contract are compensation to the Plaintiff for the damage, loss or injury suffered through that breach. It is meant, as far as money can do it, for the Plaintiff to be placed in the same position as if the contract has been performed. See

Omega Bank Nig, Plc Vs O.B.C. Ltd (2005) 8 NWLR (Pt.928) 547 at 555.
In the light of the above, I am of the reasoned opinion that the claimant is not entitled to its claim for special damages as there was no breach of contract between it and the British Council upon which the compensation sought in damages could accrue. It is also my opinion that claimant did not strictly prove its entitlement to its claim for special damages…
On its claim for general damages, it is trite law that General Damages must flow directly and naturally from the facts giving rise to the cause of action or Defendant’s act, which would entitle the claimant to the award of general damages. In the instant case the claimant’s claim for general damages succeeds on the ground that the Defendant caused or procured the termination of the claimant’s contract with British Council by its unethical practices thereby causing the claimant to lose its contract with British Council. In the light of the above the claimant is hereby awarded the sum of N4Million Naira (sic) as general damages…” (See Pages 377 to 379 of the Records of Appeal)

Aggrieved by the above decision, Appellant

filed the Notice of Appeal on 15/5/2010, which it amended, as per the Amended Notice of Appeal, disclosing 5 grounds of Appeal. Appellant also filed Amended Brief of Arguments on 23/2/2011 and distilled 5 issues for the determination of the Appeal, as follows:
1) Whether there was a contract between the claimant/Respondent and the Defendant/Appellant with regards to the provision of internet services to British Council? (Ground 1).
2) Whether the learned trial judge was right in holding that the claimant/Respondent has, by credible evidence established the fact that the Defendant/Appellant owing to its unethical trade practice intentionally procured an unfair trade practice which culminated in the termination of the claimant/Respondent’s contract with the British Council? (Ground 2).
3) Whether the claimant/Respondent is entitled to the claim of N25, 506,609.49 (Twenty Five Million Five Hundred and Sixty Thousand, Six Hundred and Nine Naira, Forty Nine Kobo) from 2003 to 2006 as the financial benefit derived by the Defendant/Appellant within the period of its dealing with the British Council? (Ground 3).
4) Whether the learned trial

judge was right in awarding the sum of N4,000,000 (Four Million Naira) against the Defendant/Appellant as general damages for inducement of breach of the claimant/Respondent’s contract with the British Council (Ground 4).
5) Whether the trial Court lacked the jurisdiction to entertain the Respondent’s claim in the suit herein by virtue of the provisions of the Nigerian Communication Act of 2003? (Ground 5).

The Respondent filed its Amended Brief on 4/3/2011 and raised preliminary objection to the competence of grounds 1, 2, 3 and 5 of the Appeal, dated 17/5/2010. The Respondent also distilled five issues for the determination of the Appeal, if the preliminary objection is overruled, namely;
1) Whether the learned trial judge was right when he held that there was a contract between the Respondent and the Defendant/Appellant in which the former engaged the services of the latter on an annual maintenance contract for servicing of the Respondent’s contract with the British Council. (Ground 1).
2) Whether the trial judge was right in holding that the claimant/Respondent has by credible evidence established the fact that the

Defendant/Appellant owing to its unethical trade practice intentionally procured an unfair trade which culminated in the termination of the claimant/Respondent’s contract with the British Council (Ground 2).
3) Whether the learned trial judge was right when he held that based on admission by the defendant/appellant, the claimant/Respondent is entitled to its claim of N25, 506, 609.49 as the financial benefits derived by the Defendant/Appellant within the period of its dealing with the British Council (Ground 3).
4) Whether the learned trial judge was right when he awarded the sum of N4 Million against the Defendant/Appellant as general damages for inducement of breach of claimant/respondent’s contract with the British Council (Ground 4).
5) Whether the Nigerian Communications Commission Act No. 19 of 2003, Cap N97 LFN 2004 is applicable such that the respondent’s non-compliance with its provisions rendered the suit before the lower Court incompetent, with the Court lacking jurisdiction to entertain it. (Ground 5).

Appellant filed a Reply Brief on 23/1/2012, deemed duly filed on 5/2/2014.
The Respondent also filed a Cross Appeal and

processes, which shall be considered later.

RESOLUTION OF THE PRELIMINARY OBJECTION
I do not think it is necessary to consider the Preliminary Objection raised by the Respondent in the Respondent’s Brief, as the same did not raise objection against the Appeal, but against specified grounds of the Notice of Appeal, dated 17th May, 2010. I had earlier said that Appellant filed Amended Notice of Appeal on 17/2/2011, thereby terminating the relevance/applicability of the original Notice of Appeal, dated 17/5/2010. By law, the moment a process of Court is amended, the original process ceases to be valid or relevant, being replaced and subsumed in the new process (the amended Process), filed in the Court. See Ndukwe vs Ndukwe (2015) LPELR – 25604 (CA):
“An amended process replaces and supersedes the original document meant to be corrected. See Ogwudire vs Ogegwe & Anor (2014) LPELR – 2365 CA. See also Registered Trustees of Airline Operators of Nigeria vs Nama (2014) LPELR – 22372 (SC) where the Apex Court held that upon amendment, the new process (Amended Process) takes effect from the date of the originating process, filed. This is because

an amendment, duly made, takes effect from the date of the original document sought to be amended…”

There is no indication that Appellant has any problems with any ground of the Appeal in the Amended Notice of Appeal, filed on 17/2/2011. It should also be noted that raising objection to some grounds of Appeal, does not tantamount to preliminary objection against the hearing of an Appeal, under Order 10 Rule 1 of the Court of Appeal Rules, 2016. We have stated this repeatedly, and explained how objection to grounds of appeal may be raised by way of motion. See Ekweogu & Ors vs Anyama & Ors (2020) LPELR – 49292 CA; Mbata vs Umezurike & Ors (2019) LPELR- 47331 CA;Nwaolisah vs Nwabufoh(2011) LPELR – 2115 (SC).

I therefore dismiss the so called preliminary objection by the Respondent.
I think the real Issue thrown up for the determination of this Appeal are two, namely:
1) Whether there was a contract between Appellant and the Respondent, which was breached, to warrant the award of general damages against the Appellant.
2) Whether the trial Court was right, in the circumstances of this case, to hold Appellant

liable in general damages and/or special damages for inducement of breach of the Respondent’s contract with the British Council.

The above two Issues appear to summarize the Issues 1, 2, 3, 4 and 5 by the Appellant.

Issue 1 herein takes care of Appellant Issues 1 and 2, and the Issue 2, takes care of Appellant’s Issues 3, 4 and 5. (The Issue 2 by Appellant however appears to be academic, as the trial Court did not award any special damage to Respondent, having said the same was not proved). See Eze vs State (2017) LPELR – 42006 CA; YUSUF VS STATE (2019) LPELR-46945 (SC).
I shall, however, take the two Issues together, as they are related.

Arguing the Appeal, Appellant’s Counsel, Rotimi Seriki Esq, (who settled the brief), had said that the only contract document between Appellant and Respondent, with regards to the provision of internet services and equipment to the British Council, is the Annual Maintenance contract, dated 4/9/2004 (Exhibit A3), on pages 202 to 205 of the Records of Appeal- The agreement being between the Appellant, (On the one part) and the British Council (PH) (Sof Technologies), of Plot 300 Olusegun Obasanjo Way

P.H Rivers State, c/o Sof Technologies Ltd.

Learned Counsel said that contract was between the Respondent and the British Council, not between Appellant and the Respondent. He said that a party cannot use parole or oral evidence to alter, vary or contradict the contents of a document. He relied on Section 132 (1) of the Evidence Act LFN 2004 edition and on the case of Christaben Group Ltd Vs Oni (2008) 11 NWLR (pt 1097) 111; he said that the trial Court was not entitled to rely on the evidence of CW1 to contradict the contents of the Exhibit A3 and the invoices issued by Appellant in favour of the British Council; that the trial Court failed to avert its mind to the Exhibit A3 and the contents of invoices issued by Appellant and the evidence of DW1, to the effect that the Respondent, at all times, acted as an agent of the British Council with regards to its contract with the British Council; that Appellant did not, at anytime, plead or admit having a contract with Respondent for the Provision of internet services and equipment to the British Council; he said that Respondent was acting as agent of the British Council. He said that it was wrong for the

trial Court to rely on payments made by Respondent to Appellant, vide Bank Cheques, to conclude that there was contract between them in respect of the services to the British Council; that a proper conclusion should have been that the payments were made by the Respondent on behalf of the British Council, for the provision of the internet services.

On whether the Respondent had established, by credible evidence, that Appellant intentionally procured an unfair practice which culminated in the termination of the Respondent’s contract with British Council, Counsel answered in the negative. He said that Respondent had sought reliefs for damages for breach of contract, inducement of breach of contract and money had and received; he said that none of the above reliefs by Respondent was premised on unfair trade practice; that the trial Court failed to avert its mind to the said uncontroverted facts and the evidence of CW1, to the effect that the contract between the British Council and the Respondent, was annual, renewable contract, and that the British Council terminated the contract lawfully, on the basis of non-renewal of same, as per the agreement (Exhibit

B) shown on pages 100 to 103 of the Records.Counsel said there was no evidence to show that Appellant induced the non-renewal of the contract between Respondent and the British Council, or that it induced/influenced the termination of the contract, in any manner. He said that the trial Court failed to avert its mind to Exhibit C — a memo dated 26/10/2004 — which was authored by one Kabiru Bamidele Yusuf — the Resources Manager of the British Council, and which letter induced the non-renewal of the Respondent’s contract with the British Council. He said that there was no evidence that the said Kabiru Bamidele Yusuf acted under the influence, direction or instruction of the Appellant; that CW1 admitted, under cross examination that the Respondent never took action against the British Council for any purported breach of contract.
On award for breach of contract, Counsel said the Respondent must establish actual loss for the alleged inducement of breach of the contract by the Appellant, which it failed to do. He relied on Jones Bros (Hunstantion) Ltd Vs Stevens (1955) 1 QB 275. He also relied on Allen Vs Hood (1898) AC 1;

Hadmor Productions Ltd Vs Hamiltion (1983) 1 AC 191 and Midland Cold Storage Ltd Vs Steer (1972) CH 630.

Counsel further argued that, going by the reliefs sought by the Respondent at the trial and the evidence led, the Respondent did not fulfill the conditions precedent to taking the action as stated in Sections 73 and 74 of the Nigeria Communication Act, 2003, which required the parties to seek negotiation and to refer their dispute to the Commission for resolution, before resort to Court action; he said that the Court lacked jurisdiction to entertain the action, for failure to satisfy the conditions precedent. He relied on Nationwide Action Against Corruption & Anor vs ECONET WIRELESS LTD & Anor (2006) 3 FWLR 5400; NCC Vs MTN (NIG) COMM. LTD (2008) 7 NWLR (Pt.1086) 229.
He urged us to allow the Appeal.

The Respondent’s Counsel, Johnson O. Esezoobo, Esq, who settled the brief, argued that the trial Court had properly assessed the pleadings and evaluated the evidence, before coming to the conclusion that the annual maintenance contract was between the parties. He referred us to the contract agreement, according to him, between the parties,

together with several job orders from British Council, with invoices contingent upon which various cheques were issued to the Appellant at various times by the Respondent.

Counsel further argued that we cannot decide whether there was contract between the parties, at appellate stage, since the trial Court has already determined that issue; he said that appellate Court can only determine such issue, if it is alleged that the trial Court did not do so.

On the submission that oral or parole evidence cannot be admitted to contradict documentary evidence, and that the trial Court was wrong to rely on oral evidence of CW1 to contradict the contents of the Annual Maintenance Agreement (Exhibit A3), and invoices issued by Appellant in favour of the British Council, Counsel said those submission related to fresh issues, not raised at the Lower Court and not captured in the Notice and grounds of Appeal. He relied on Omega Bank Nig. Plc Vs OBC Ltd (2005) 8 NWLR (Pt.928) 547, to say that “where a document is pleaded to establish a particular fact, it can only be used to establish that fact cannot be used to prove another fact, which is not an issue in the

pleading.”

Thus, Counsel said, it would have been out of place for the learned trial Judge to use the documents in question or draw inference from them to establish a fact not pleaded by the Appellant; he said that payments represented by the documents were made to Appellant by Respondent, on behalf of the Appellant (sic).

Counsel argued that the submission by the Appellant, that “none of the reliefs sought by Respondent was premised on unfair trade practice” was totally misconceived. He said that neither by the pleading or in the evidence did the Respondent premise its claim (relief) on unfair trade practice.” Counsel said that unfair trade practice or unethical contract, with details, such as sharp practices, converting the contract, secretly and falsely posting invoice direct to the British Council, as well as dealing improperly behind the scene, all leading to the issuance of the Exhibit C by Kabiru Yusuf, terminating the contract, were mere detail culminating in the reliefs sought. Counsel referred us to pages 374 — 375 of the Records, where the trial Judge in the judgment noted that “….Defendant instigated a staff of the

British Council to write a bad memo to the Claimant.”

Counsel said the evidence was overwhelming, as per the documents, including Exhibit B and the invoices and cheques issued by British Council to Respondent, to justify the decision of the trial Court on the award of damages made, Counsel said Appellant had not stated why the award should not stand, or that the reason given by the trial Court (inducement of breach of contract) did not support it. He added that appellate Court does not usually interfere with award of damages, unless it is shown that it was based on wrong principles of law. He relied on cases, including Kaydee Ventures Ltd Vs Minister FCT (2010) NWLR (Pt.1192) 261.

Counsel said that Appellant interfered with the Respondent’s contract with the British Council, through unfair trade practice, unethical conduct etc; that the interference took a more condemnable dimension, when Appellant, through improper dealing and secret meetings with the British Council, caused Kabiru Yusuf to write the letter (Exhibit C), which terminated the contract between Respondent and the British Council; he said that the contract was terminated as a result

of the Appellant’s undue interference.

On the application of the Nigeria Communications Commission Act, Counsel said Appellant’s submission on the point was totally misconceived; he said that from the facts of the case, the subject matter of the Suit was a simple contract in which the Respondent engaged the services of the Appellant to service its contract with the British Council for which Appellant demanded for a non-refundable security deposit of N1Million, expended to the tune of N200,000.00, under the circumstance; that Appellant played sharp practice that induced a breach of the Respondent’s contract with the British Council and subsequently took it over to its benefit; he asserted that Appellant induced a breach of the Respondent’s contract with the British Council. He argued that the Nigeria Communications Commission (NCC) Act was inapplicable to this case, especially as the case did not cover internet services, and the parties herein are not duly licenced by NCC to engage in internet service as providers.
Counsel urged us to resolve the Issues against Appellant and to dismiss the Appeal.

RESOLUTION OF THE ISSUES
The facts of this case show that Respondent and the British Council had Annual Maintenance service contract for maintenance of internet services and equipment, rendered to the said British Council. The Respondent in the course of their service to the British Council had dealings with the Appellant engaged to help in the delivery of the services by the Respondent to Council. Appellant became a factor in the contractual relationship, contingent upon the claimant’s services to the said British Council.

Respondent alleged that the Appellant coverted its contract with the British Council, and engaged in secret, improper and sharp deals with the said British Council through which it (Appellant) subverted the contract; Respondent said that from the said improper and sharp practices with the British Council in the subversion of the Respondent’s contract, the Appellant improperly benefited, financially, in the sum of N20,508,609.49 from 2003 to 2006. Respondent cited invoices and other documents whereof Respondent said, Appellant falsely and fraudulently posted to the Respondent’s client (British Council) that the said activities of Appellant induced the British Council to terminate

the Maintenance Contract (Exhibit A3) with Respondent; that the Appellant, finally, in an unconscionable and unethical dealing, re-negotiated and took over the Claimant’s contract with the British Council, causing the Respondent losses, amounting to N56.5Million, out of which N47,515,209.49 was special damages.

The Appellant, in return, counter-claimed against the Respondent, for unlawful interference with its (Appellant’s) internet service supply and maintenance contract with the British Council. It sought damages of N5Million against Respondent. (See Pages 198 to 200 and 194 of the Records of Appeal, on the Respondent’s and Appellant’s claims, respectively).

In all this drama of accusation and counter accusation, and unhealthy trade rivalry between the parties over the maintenance service contract to the British Council, the said British Council (over which the parties appeared to have fought, dirty) was not a party to the Suit, even when the Respondent alleged that Appellant induced it to breach the contract (Exhibit A3) between it and the British Council.

The trial Court’s findings, after reviewing the evidence, was:

“However, in the instant case, it is a fact that the British Council vide a letter dated 7th February, 2005, tendered as Exhibit C, and (sic) terminated its contract with the claimant, upon notice of its intention not to renew the claimant’s contract. The issue of breach of contract between the claimant and the British Council thereof, in my opinion, does not arise having validly terminated its contract with claimant in accordance with the terms of their contract.” See pages 377 to 378 of the Records of Appeal.

I think that should have marked the terminal end of Respondent’s claim; upon determining that the British Council validly terminated the contract between it and the Respondent, in accordance with the terms of their contract; and that the issue of breach of the contract did not arise, in the circumstance. That appears to silent and ignore the claims of Respondent that Appellant used inducement and unethical practice to bring about breach of the contract, whatever the underhand acts/influences that may have induced the termination of the contract!
And, since Appellant was not part of the contract between Respondent and the British Council (Exhibit A3),

its role in the termination of the contract (or breach of same), cannot be contemplated, in law, in my opinion, let alone its liability for the alleged breach or termination of the contract, Appellant not enjoying privity to the contract.
Such liability appears farfetched or remote, considering the doctrine of privity of contract, which holds that a stranger (one who is not a party to contract) cannot enforce it or stand liable for breach of same. See Rebold Industries Ltd Vs Magreola & ors (2015) LPELR- 24612 (SC):
“I must state clearly that there is in the law of contract what is referred to as privity of contract.
It is always between the contracting parties who must stand or fail, benefit or lose from the provisions of their contract. That is to say their contract cannot bind third parties nor can third parties take or accept liabilities under it nor benefit there under. See OGUNDARE VS OGUNLOWO (1997) 6 NWLR (PT. 509) 360; IKPEAZU VS ACB LTD (1965) NWLR 374-378… ”
I cannot therefore understand how an underhand practice, or unethical conduct by a trade rival, who sought to win the attention of the Respondent’s client (British

Council) for the purpose of taking over the same business, rendered to British Council by the Respondent, and which may have caused the British Council to dump Respondent and start business with Appellant, can make Appellant liable to Respondent for inducement to breath contract, and to make Appellant liable for the loss of the contract, especially, where the 3rd party (British Council) terminated the contract neatly and lawfully. I am yet to find a legal premise to award damages against such trade practices, founded on trade rivalry and business scheming, albeit, unethical, and where the British Council that terminated the contract, and/or was manipulated, was not a party to the Suit.
To that extent, it appears strange to me, that the trial judge, after ruling out any breach of contract by the British Council, in the contract between it and Respondent, and after holding that the contract was validly terminated, upon refusal to renew it, turned round to hold Appellant liable to the Respondent for inducement of breach of the contract (the contract it held was validly terminated).

The trial Court also exhibited what I consider as serious confusion,

when it held on page 377 of the Records, thus:
“The question now is; is the claimant entitled to the claim of N20,506,609.49 from 2003 up to 2006, as the financial benefits derived by the Defendant within the period of its dealing with the British Council which the claimant alleged should have accrued to it?
The general position of the law is to the effect that facts not controverted are deemed admitted, and facts admitted need no further proof. In view of the fact that the Defendant, having admitted that it posted invoices directly to the British Council upon which payments made in Exhibit D tendered by the claimant, were paid to the Defendant on the alleged sum claimed by the claimant. I am of the opinion that the claimant has established its claim to the above sum to the satisfaction of this Court and the Defendant is therefore liable to the claimant on the above sum by virtue of its admission.”

That sounds somewhat absurd and strange, in the light of the earlier reasoning by the trial Judge that there was no breach of the contract between Respondent and the British Council. It would also appear harsh and unconscionable, to award the

said sum of N20.5 Million, accruing from bills from Appellant to the British Council, from 2003 to 2006 (for which the British Council made payments to Appellant), to the Respondent, if the bills (invoices) represented services and jobs rendered by the Appellant to the British Council, upon existing contract(s) between the two.

On page 378 of the Records, the trial Court further held:
“In the light of the above, I am of the reasoned opinion that the claimant is not entitled to its claim for special damages, as there was no breach of contract between it and the British Council, upon which the compensation sought in damages could accrue. It is also my opinion that claimant did not strictly prove its entitlement to its claim for special damages. See Hotels Vs Hotels Support Services Ltd (2001) & NWLR (pt. 714) -174…”

What then was the N20,506,609.49 which the trial Judge earlier said was established?

The above is a good example of the saying that the same source of water cannot gush out clean and dirty water, at the same time. That would be quite strange occurrence.

Of course, the correct position of law is that the

claims of special damages and general damages could not be sustained in the circumstance that the trial Court found that there was no breach of the contract between Respondent and the British Council. The award of N4 Million general damages to the Respondent, was therefore wrong and perverse, in the circumstances of this case, in my view. And, since British Council was not on trial, the issue of breach of the contract by it, did not even arise.

I therefore find merit in this Appeal and allow it, and set aside the decision of the trial Court. I dismiss the Respondent’s suit at the lower Court.
No order as to cost.

CROSS – APPEAL
The Notice of Cross-Appeal is on pages 393 to 402 of the Records of Appeal, disclosing 6 grounds.

The Cross-Appellant filed its brief on 13/9/2010 and donated six issues for the determination of the Cross Appeal, as follows:
1) Whether the learned trial judge did not misdirect himself

on the law when he held that the cross appellant did not strictly prove its entitlement to its claim for special damages”, as such she “is not entitled to its claim for special damages” (Ground one).
2) Whether the learned trial judge was right in law when she held that there was no breach of contract between the British Council and the Cross Appellant (Ground two).
3) Whether the learned trial judge did not misdirect himself on the facts when he held that the Cross Appellant failed to establish its entitlement to the sum of N11.6 Million (Ground three).
4) Whether the learned trial judge was right in law when he failed and or neglected to pronounce on the cross appellant’s claim of N806,600.00 and N4Million special damages as well as general damages and award the same, accordingly (ground four and five).
5) Whether the judgment of the learned trial judge with

respect to the claims of N11.6 Million for the years 2005-2006 amounting to N23.3 Million, as well as N808,600.00 and N4Million is not perverse and against the weight of evidence (Ground six).

The Cross Respondent filed its brief on 23/1/2012, which was deemed duly filed on 5/2/2014. He distilled 4 issues for the determination of the Cross Appeal, as follows:
1) Whether the learned trial Judge was right when she held that the Respondent did not strictly prove its claim for special damages and was not entitled to same? (Grounds 1, 3 and 4)
2) Whether the learned trial Judge was right when she held that there was no breach of contract between the Respondent/Cross Appellant and the British Council? (Ground 2)
3) Whether the learned trial Judge failed to consider and determine the Respondent/Cross Appellant’s claim for general damages for breach of contract? (Ground 5)
4) Whether the position of the Judge against which the

Respondent/Cross Appellant has Cross-Appealed is against the weight of evidence (Ground 6)

The Cross Respondent had raised objection to the ground 6 of the Cross Appeal, saying the same is vague and a duplication of grounds 3, 4 and 5 of the Cross Appeal; that it also offends Order 6 Rule 3 of the Court of Appeal Rules 2011. The objection shall be taken together with the Cross Appeal.

The Cross Appellant’s Counsel had argued Issue 1, 3 and 5, together and submitted that the trial Court should have awarded the N11.6Million earnings, each for the year 2005 and 2006 for it, as the evidence on it was not controverted; that the trial Court’s judgment on the same was perverse and against the weight of evidence.

Counsel argued that the trial Court was wrong to say that there was no breach of contract by the British Council; that the Court contradicted itself when it said the issue of breach of contract between the claimant and the British

Council did not arise; Counsel said that marked the beginning of the Court’s misdirection on the claim of special damages.

Similar argument were made on Issue 2 and Issue 4, whereof Counsel said the decision, that there was no breach of contract made the trial Court not to properly evaluate the evidence relating to the claims of Cross Appellant, in respect of the N47.5MilIion special damages and the N808,600.00, being money to be refundable as money had and received.

RESOLUTION OF THE CROSS APPEAL
I cannot really spot any major difference in the arguments of the Cross-Appellant and Cross-Respondent, compared with the trend of their arguments in the main Appeal. In the same way, the trend of the reasoning of the trial Court, which has already been evaluated and reviewed by me in the main Appeal, remains the same, and the thrust of my findings on the judgment, obviously, cannot change in this Cross Appeal.

I have earlier held that the trial Court was right to hold that

there was no breach of contract between the Cross Appellant and the British Council, when the British Council terminated the contract it had with Cross Appellant. And that since the Cross Respondent was not a party to the said contract between Cross-Appellant and the British Council, it (Cross Respondent) cannot be held liable for breach of the contract, or inducement to breach contract.

The Agreement between the Cross-Appellant and the British Council is reproduced on pages 202 to 204 of Records of Appeal. I have studied it and can see some exclusion clause, that barred the British Council (Customer) from dealing or relating with any other person, for the purpose of maintenances/services of their equipment, while the contract with Respondent remained. See Page 204 of the Records, which stated the exclusion clause, as follows:
The Customer shall not in any circumstance contract with any third party whomsoever for the maintenance of the Equipment during the continuance of this Agreement neither shall he assign

this contract to any third party whomsoever without the prior written consent of the Company.

If the British Council had breached that clause, in its dealing with Cross Respondent, that was not the case before the trial Court. And the British Council was not a party to the Suit, and the Suit did not target British Council for breach of the Agreement. Moreover, the trial Court had held that the contract was validly terminated. All that, queried the cause of action in this case, making difficult for the claimant to succeed.

Oral evidence by CW1 could not have applied, therefore to alter, contradict, discount or deny the content of a written document (Exhibit A3). See Nwakolobi Vs Ejemeli & Anor (2020) LPELR – 51357 CA; Uma vs Oke (2020) LPELR – 50131 CA; Lewis vs Uba (2016) LPELR – 40661 (SC). The law is trite.

The Provisions of the Nigeria Communications Commission Act did not apply to this case. I cannot therefore see any merit in this Cross Appeal and the same is hereby dismissed.
The parties shall bear their respective cost.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the opportunity of reading in draft the lead Judgment

just delivered by my learned brother, ITA G. MBABA, JCA.

The reasoning and conclusion arrived at by my noble brother in the lead Judgment are firmly agreed to by me.
I too found the main appeal meritorious and allow it. The decision of the trial Court is hereby set aside and therefore dismiss the Respondent’s suit at the lower Court as done in the lead Judgment. No order as to costs.
On the Cross-Appeal, I have not seen any merit in it and same is hereby dismissed.
The parties shall bear their respective costs.

ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the advantage of reading in draft the judgment just delivered by my learned brother ITA G. MBABA, JCA and I am in complete agreement with the reasoning and conclusion reached. The appeal is meritorious and is accordingly allowed by me. The cross appeal is unmeritorious and it is accordingly dismissed by me. I abide by all the consequential orders as contained in the leading judgment including the orders as to cost.

Appearances:

ROTIMI SERIKI, ESQ. For Appellant(s)

JOHNSON O. ESZOOBO,ESQ. For Respondent(s)