FEDERAL MINISTRY OF HEALTH & ORS v. DASCON NIGERIA LIMITED (2017)

FEDERAL MINISTRY OF HEALTH & ORS v. DASCON NIGERIA LIMITED

(2017)LCN/10502(CA)

In The Court of Appeal of Nigeria

On Thursday, the 7th day of December, 2017

CA/YL/22/2016

RATIO

ARBITRATION – ARBITRATION CLAUSES: THE TWO CLASSES OF ARBITRATION CLAUSES

Arbitration clauses fall into two classes. One class is where the provision for arbitration is a mere matter of procedure for ascertaining the rights of the parties with nothing in it to exclude a right of action on the contract itself, but leaving it to the party against whom an action may be brought to apply to the discretionary power of the Court to stay proceedings in an action in Court in order that the parties may resort to that procedure to which they have agreed. The other class is where arbitration followed by an award is condition precedent to any other proceedings being taken the further proceedings being upon the award made under the arbitration clause. See Obembe V. Wemabod Estates Ltd (1977) LPELR 2161 SC 16 17 per Fatayi Williams (CJN of blessed memory). PER JAMES SHEHU ABIRIYI, J.C.A.

ARBITRATION : WHEN THE DEFENDANT WILL BE DEEMED TO HAVE WAIVED HIS RIGHT TO RAISE THE ISSUE OF ARBITRATION CLAUSE

When parties enter into agreement and there is an arbitration clause whereby the parties must first go for arbitration, the defendant in a case where the other party has filed a suit should ask for a stay of proceedings pending arbitration. That does not amount to a submission to trial. See Fawehinmi Construction Company Ltd V. O.A.U (1998) LPELR 1256 SC per Belgore JSC. Where a defendant fails to raise the issue of arbitration clause and rely on same at the early stage of the proceeding but rather takes positive step in the action, he would be deemed to have waived his right under the arbitration clause. An application for stay of proceedings pending arbitration should be made in time as provided by Section 5 of the Arbitration and Conciliation Act. See Akpaji V. Udemba (2002) LPELR 7071 CA page 13 per Ubaezonu JCA, BCC Tropical Nig. Ltd V. Government of Yobe State (2011) LPELR 9230 pages 16 17 per Dongban Memsem JCA. PER JAMES SHEHU ABIRIYI, J.C.A.

DAMAGES: THE DISTINCTION BETWEEN THE PRINCIPLES GOVERNING THE AWARD OF DAMAGES IN TORT AND AWARD OF DAMAGES IN CONTRACT

The principles guiding the award of damages in tort are different from those guiding the award of damages in contract. The object of tort damages is to put the plaintiff in that position he would have been in if the tort has not been committed whereas, the object of contract damages is to put the plaintiff in the position he would have been in; if the contract had been satisfactorily performed. See Agbanelo V. Union Bank of Nigeria Ltd (2000) 4 SC (Pt. 1) 233 at 245. PER JAMES SHEHU ABIRIYI, J.C.A.

TORT – FALSE IMPRISONMENT: MEANING OF FALSE IMPRISONMENT

False imprisonment is an intentional instigation of arrest and detention of a citizen without reasonable or probable cause. See Borno State Government V. Asheik (2007) All FWLR (Pt. 357) 1006. PER JAMES SHEHU ABIRIYI, J.C.A.

TORT – DEFAMATION: THE DUTY OF A PLAINTIFF IN AN ACTION FOR DEFAMATION

A plaintiff in an action for defamation must prove that the offending words were published. That the words complained of refer to him. That the words were defamatory of the plaintiff. That the words were published to third parties. That the words were false. Finally that there was no justifiable legal ground for the publication of the words. See Iloabachie V. Iloabachie (2005) 13 NWLR (Pt. 943) 695. PER JAMES SHEHU ABIRIYI, J.C.A.

JUSTICES

OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

SAIDU TANKO HUSAINI Justice of The Court of Appeal of Nigeria

Between

1. FEDERAL MINISTRY OF HEALTH

(Operating under the name and style of Federal Medical Centre, Yola)

2. HON. MINISTER OF HEALTH

3. HON. ATTORNEY GENERAL OF THE FEDERATION – Appellant(s)

AND

DASCON (NIG) LTD – Respondent(s)

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on the 4th January, 2016 in the High Court of Adamawa State holden at Yola. The Respondent was the plaintiff. The Appellants were the Defendants/Counter claimants.

In a rather amorphous claim, the Respondent claimed against the Appellants the following:

1. The sum of N38, 908, 733.37 being special and general damages.

SPECIAL DAMAGES

i. N731, 898.59 for additional works

ii. N199, 690.31 for further additional works

iii. N89, 642.43 for additional works

iv. N100, 024.25 as shortfall from payment on Architects Certificate No. 8

v. N6, 685, 563.85 being interest on delayed payments.

vi. N1, 671, 390.90 being loss of profit on delayed payments.

vii. N630, 289.41 being payment to the Federal Inland Revenue Service (FIRS) on account of the Plaintiff on the Withholding Tax deductions on the contract payments.

GENERAL DAMAGES

i. N4, 844, 564.94 for harassment/DETENTION OF Chairman/CEO of Plaintiff.

ii. N1, 200, 000.00 for stopping of cheque of Plaintiff with

Plaintiffs bankers Afrribank (sic) Plc Yola.

iii. N2, 500, 000.00 for calling and labelling the Plaintiff incompetent.

iv. N15, 000, 000.00 for the inability of Plaintiff to utilize business opportunities/tender for other jobs due to non-remittance of tax deductions to FIRS.

v. N2, 005, 669.16 being effect of delayed payments and intimidation from suppliers/sub-contractors on Plaintiffs employees.

vi. N1, 500, 000.00 for hardships due to delay in preparing Certificates, preparation of large (sic) valued Certificates, delays in signing Certificates 2, 3 and 5 deliberate delay in honouring of Architects Certificates.

vii. N1, 750, 000.00 for non-certification/payment of new additional works.

2. 25% interest per annum on the total sum from 24th March, 2005 (the date of payment of Practical Completion Certificate No. 8 of 2nd November, 2004) to the date judgment will be delivered and 10% interest from the date of judgment until judgment debt is liquidated.

3. The cost of this action.

The Appellants counterclaimed for the following:

a. The sum of N750, 000.00 (Seven Hundred and Fifty Thousand Naira)

only, for the delay in completion of the contract.

b. The sum of N250, 000 (Two Hundred and Fifty Thousand Naira) only, being amount paid for increase in prices and wages.

c. The sum of N35, 000, 000.00 (Thirty-Five Million Naira) only claiming (sic) general damages for hardship and injury caused to the defendants.

d. 20% interest on the total sum from the date the project was supposed to have been handed over. (i.e. 11th December, 2001) to the date of Judgment to be delivered and 10% interest from the date of Judgment until the Judgment debt is liquidated.

The facts of the case are briefly stated immediately hereunder. The Respondent was awarded a contract by the Appellants to convert classrooms into laboratories, X-ray Department and Wards in the sum of N9, 751, 552.63. The contract sum was revised upward to N11, 698, 137.31. It was again revised to N12, 605, 788.36. Appellants delayed in evacuation from the site. In the course of execution of the contract various additional works were done by the Respondent. Inspite of this the Appellants blamed the Respondent for delay in executing the contract. The Respondent in turn blamed the

Appellants for the delay due to late payments the Appellants made for works done.

In their defence, the Appellants stated that by the contract agreement, the Respondent was to complete the project in eight weeks. That no adjustments were to be made to the contract sum in respect of wages and price materials. That site minutes of meetings could not translate to agreements or additional works to be carried out or by written notification as the Respondent was contending. That the delays were caused by the Respondent because of her failure to provide a bank guarantee. That after reconciling the payment made to the Respondent, it was discovered that the Respondent had been fully paid for all the works executed. That the letters written to the Federal Ministry of Health and Federal Ministry of Housing and Urban Development were written in error as no outstanding money of the Respondent remained unpaid.

After considering the evidence adduced by both parties and written addresses of learned counsel for both parties, the Court below dismissed the Appellants counterclaim and entered judgment in favour of the Respondent.

The Appellants have

therefore proceeded to this Court by notice of appeal filed on 19th January, 2016. The notice of appeal contains seven grounds of appeal.

From the seven grounds of appeal the Appellants presented the following four issues for determination:

i. Whether or not the Trial Court had jurisdiction to have entertained the case in view of the Clause 18 (Arbitration Clause) contained in Exhibit 4 the Contract Agreement executed by the parties?

(Distilled from Ground One)

ii. Whether or not the Respondent is entitled to award of the sum of N12, 000, 000.00 and N1, 031, 613.15 awarded by the trial Court as general and special damages and or whether same is a wind fall

(Distilled from Grounds Two and Three)

iii. Whether or not the trial Court was right to have awarded 10% pre-judgment interest and 15% post-judgment interest?

(Distilled from Grounds Four and Five)

vi. Whether or not the trial Court was right to have dismissed the Appellant Counterclaims where there is clear breach of Contract from Respondent?

Grounds 6 and 7.

The Respondent on her part presented the following issues for determination:

i. Whether or not the trial Court had jurisdiction to have entertained the case in view of Clause 18 (Arbitration Clause) contained in Exhibit 4 the Contract Agreement executed by the parties?

ii. Whether or not the Respondent is entitled to the award of the sum of N12, 000, 000.00 and awarded by the trial Court as general and special damages respectively?

On issue 1, learned counsel for the Appellants submitted that where parties to a contract have agreed to submit to arbitration and further incorporated the said arbitration clause into a contract agreement as in the instant appeal such agreement is binding and shall be irrevocable except by the leave of Court or mutual consent of the parties. The Court was referred to Exhibit 4 clause 18 of the contract agreement executed by the parties.

It was submitted that the Court below erred in law when it failed to consider and give effect to clause 18 of Exhibit 4 and refer the matter to the arbitrator and consider the action as premature. It was submitted that where a contract contains an arbitration clause as in the instant appeal, the trial Court ought to give effect to the intention of

the parties by enforcing the arbitration clause agreed upon by the parties. We were referred to Environmental Development Construction V. Umara Association (2000) 4 NWLR (Pt. 652) 293 at 315. Clause 18 of Exhibit 4, it was submitted, uses the word shall which is mandatory. This therefore left the parties with no option other than setting in motion arbitral proceedings in the event that the matter could not be mutually resolved. By virtue of Clause 18 of Exhibit 4, it was again submitted, the Court below lacked jurisdiction to entertain the case. We were referred to Kurubo v. Zach-Motison Nigeria Ltd (1992) 5 NWLR (Pt. 239) 102 at 303 304.

On issue 2, learned counsel for the Appellants submitted that an award of damages is meant to restore the injured party to the position he or she was prior to the injury and that the award of twelve million Naira (N12, 000, 000) to the Respondent by the Court below was not meant to restore the Respondent to the position he was prior to the injury.

It was submitted that whenever there is a breach of contract the amount of damages to be paid to the aggrieved party is such that will put that party

in the position he would have been if there had been no breach. Having been awarded damages for actual loss under various specific headings, a plaintiff, it was submitted, in an action for breach of contract could not receive any further award under the heading of general damages. It was further submitted that in an award of damages for breach of contract, it is not proper to award general damages as it is only special damages that are claimable with particulars and evidence in support of the damages claimed. The Court was referred to ACB Plc V. Ndoma Egba (2000) 10 NWLR (Pt. 675) 229.

It was submitted that the award of general damages by the Court below to the Respondent after the award of special damages amounts to double compensation.

It was submitted that it is not proper in cases of breach of contract to categorise damages by the use of the words general and special for breach of contract.

It was submitted that special damages must be claimed specifically and proved strictly and that in the cases of contract same cannot be claimed unless they are within the contemplation of both parties at the time of the contract.

It was

pointed out that the Court below awarded special damages of N731, 898.59, N199, 690.31 and N100, 024.25 for additional works and shortfall for payments in certificate No. 8. It was submitted that these awards of special damages by the Court below are sentimental as they were not contemplated in the agreement of parties. We were referred to Gonzee (Nig) Ltd V. Nigeria Educational Research & Development Council & 2 Ors (2005) 13 NWLR (Pt. 943) 638.

On issue 3, learned counsel for the Appellants submitted that pre-judgment interest must be pleaded and proved by evidence. The Court was referred to Skymit Motors Ltd V. United Bank for Africa (2012) 2 NWLR (Pt. 1309) 491 at 497, Idakula V. Richards (2000) All FWLR (Pt. 14) 2445 and Himma Merchants Ltd V. Aliyu (1994) 5 NWLR (Pt. 347) 667. The Court below, it was submitted, did not state whether or not the claim for pre-judgment interest was based on the agreement made by the parties to the contract and no evidence was adduced by the Respondent to show that interest at any rate was agreed upon.

On the award of 15% post-judgment interest, it was submitted that by Order 40 Rule 8 of the Adamawa State

High Court Civil Procedure Rules 2013 interest for post-judgment interest rate shall not exceed 10% per annum. The award of 15% interest from the date of judgment, it was submitted, is contrary to Order 40 Rule 8 of the Rules and should be set aside.

It was submitted on issue 4 that the Appellants had proved their counterclaim to entitle them to judgment. The Court was referred to pages 741 and 771 772 of the record of appeal.

On issue 1, learned counsel for the Respondent submitted that any argument relating to Clause 18 of Exhibit 4 has been overtaken by events. This is because the Appellants filed a statement of defence and amended it a couple of times. Having taken steps at the trial the Appellants, it was submitted, are estopped from relying on Clause 18 of Exhibit 4. The Court was referred to Duke V. Akpabuyo Local Government (2005) LPELR 963 SC.

It was submitted that a party to an agreement with an arbitration clause has the option either to submit to arbitration or to have the dispute decided by the Court. We were referred to N.V SCHEEP V. MV S. ARAZ (2001) FWLR 543 at 596.

On issue 2, learned counsel

for the Respondent contended that contrary to the arguments of Appellants counsel, the Respondent did not have any phrase like breach of contract in its entire claim at the trial and the appellants cannot in any way attempt to rephrase and/or redirect the Respondents claim for it in order to try to limit the reliefs sought although the cause of action arose out of a contract between the parties. It was further argued that the Respondent proved cases of injury suffered by it through the action and inaction of the Appellants and is fully entitled to the reliefs sought and the awards of special and general damages.

It was submitted that the Respondents special and general damages claim, whatever is the cause of action are issues that cannot in anyway just be wished away.

Although learned counsel for the Respondent suggested that no reference was made in the entire claim to breach of contract, he contended that contrary to the argument of the Appellants, the contract between the parties was not one with a fixed contract sum as the contract sum was varied several times by the Appellants through additional works ordered

by them.

It was submitted that every additional work carried out by the Respondent was at the instance of the agent, the consultant and the Appellants have not denied the fact that the Respondent carried out extra work on the site which was yet to be paid for nor have they alleged that the Respondent did not carry out the job according to specification.

It was submitted that the Respondent established the claim for N731, 898.31 special damages which was the first item claimed. The Court was referred to Exhibits 21 and 22 at pages 844 and 847 of the record.

On the claim for N199, 690.31, the Respondent, it was submitted, led evidence on same. We were referred to Exhibit 31 at page 872 873 of the record. On the sum N100, 024.25 shortfall awarded this was also proved it was submitted and the Court was referred to Exhibits 15 and 40 at pages 824 825 and 884 of the record.

It was submitted that evidence led on special damages on which the witness is not cross ? examined is deemed admitted. We were referred to CECTCS V. Ikot (2000) 23 WRN 142 at 152 and Gonzee Nigeria Ltd V. NERDC & Ors (2005) 13 NWLR (Pt. 943) 1 at 7.

and Kosile V. Folarin (1989) NWLR (Pt. 197) 1 at 16.

On the award of general damages, learned counsel for the Respondent submitted that general damages may be awarded to assuage such a loss which flows naturally from the defendants act and that it need not be pleaded specifically. The measure of general damages in terms of money is a matter for the judge, it was submitted; and that it is always necessary for the judge to make his own assessment of the quantum of such damages. We were referred to Incar V. Benson (1975) SC 1117, Omonuwa V. Wahabi (1976) 4 SC 37 and Dumez V. Ogboli (1972) 3 SC 205 and Access Bank Plc V. Ugwuh (2013) LPELR ? 20735 CA. It was submitted that the Respondent led evidence in support of general damages and the trial Court did not particularise the general damages in making the award in the lump sum of N12 million.

The Chief Executive Officer of the Respondent, it was submitted gave evidence of his arrest by the police. The Court was referred to Exhibit 45 letter of the Respondent to the Appellant. This evidence, it was submitted, was not controverted. The Court was urged to hold that his evidence is valid having

not been controverted.

It was submitted further that the Respondent led evidence of business opportunities that the Respondent missed as a result of Appellants failure to remit tax deductions on the contract payments. The payment of tax, it was argued, was in the contemplation of the parties on the contract as the Appellants had promised to pay the tax deductions and give the receipts as was their duty to do so and they failed to do so.

It was submitted that the lost opportunities for business are depicted by Exhibits 50 (a) to 56 (f).

On issue 3, it was submitted that the Appellants having delayed in paying the Respondent, the Respondent is entitled to interest on the sum claimed as such sum of money if invested in other businesses would undoubtedly have yielded much interest to the Respondent over the years. The Court was referred to Daniel Holdings Ltd V. United Bank for Africa Plc (2005) FWLR (Pt. 277) 895, Afribank Nig. Plc V. Shanu (1997) 7 NWLR (Pt. 514) 601, Petgas Res. Ltd V. Mbanefo (2007) 6 NWLR (Pt. 1031) 545 at 559, Petroleum Special Trust Fund V. Western Project Consortium Ltd & Ors (2006) LPELR 7719 CA, Reynolds

Construction Company Nig. Ltd V. Rockonoh Properties Company Ltd (2005) 4 SC 1 at 27, A.G. Ferrero & Co. Ltd V. Henkel Chemicals (Nig) Ltd (2011) 13 NWLR (Pt. 1265) 592 at 608 E F, ACB International Bank Plc V. Adiele (2013) LPELR 21164 CA, Diamond Bank Ltd V. Partnership Investment Co. Ltd & Anor (2009) 18 NWLR (Pt. 1172) 67 at 97 and F.A.T.B. V. Ezegbu (1993) NWLR (Pt. 297).

On the award of interest at the rate of 15% from the date of judgment, the Court was urged to substitute 15% with 10% which is allowed by Order 40 Rule 8 of the Adamawa State High Court (Civil Procedure) Rules. The Court, it was submitted, can do this by invoking its power under Section 16 of the Court of Appeal Act.

On issue 4, it was submitted that the Appellant cannot be claiming damages for the delay in the execution of the contract when they had not shown that there was a stipulated time for the execution of the contract and when there is ample evidence to show that the Appellants handed over the site to the Respondent after the time stipulated for the contract to have been completed had lapsed. It was submitted that there is evidence that the

Respondent only got possession of the site on 26th January, 2002. The Court was referred to paragraph 9 of the statement on oath of the PW1 at pages 69 an 803 of the record of proceedings. There is no evidence, it was contended, that having handed over the site after the time the Respondent was supposed to have finished the contract, time was again stipulated within which the Respondent was to complete the contract.

There is also evidence, it was submitted that the Appellants delayed in paying the Respondent as and when due. Having therefore created the reason for the Respondent being unable to complete the contract on time, the Appellants cannot turn round to claim damages for the purported failure of the Respondent to complete the contract within the stipulated time (assuming without conceding there was any).

A reply brief shall deal with all new points arising from the Respondents brief. See Order 19 Rule 5 (1) of the Court of Appeal Rules 2016. The reply brief of the Appellants is not dealing with any new points arising from the Respondents brief. I will therefore discountenance it.

Arbitration clauses fall into two

classes. One class is where the provision for arbitration is a mere matter of procedure for ascertaining the rights of the parties with nothing in it to exclude a right of action on the contract itself, but leaving it to the party against whom an action may be brought to apply to the discretionary power of the Court to stay proceedings in an action in Court in order that the parties may resort to that procedure to which they have agreed. The other class is where arbitration followed by an award is condition precedent to any other proceedings being taken the further proceedings being upon the award made under the arbitration clause. See Obembe V. Wemabod Estates Ltd (1977) LPELR 2161 SC 16 17 per Fatayi Williams (CJN of blessed memory).

Where a

defendant fails to raise the issue of arbitration clause and rely on same at the early stage of the proceeding but rather takes positive step in the action, he would be deemed to have waived his right under the arbitration clause. An application for stay of proceedings pending arbitration should be made in time as provided by Section 5 of the Arbitration and Conciliation Act. See Akpaji V. Udemba (2002) LPELR 7071 CA page 13 per Ubaezonu JCA, BCC Tropical Nig. Ltd V. Government of Yobe State (2011) LPELR 9230 pages 16 17 per Dongban Memsem JCA.

Section 5 of the Arbitration Law Cap 10 Laws of Adamawa State 1997 provides as follows:

If any party to a submission, or any person claiming through or under him, commences any legal proceedings in any Court against any other party to the submission, or any other person claiming through or under him, in respect of any matter agreed to be referred, any party to such legal proceedings may at any time after appearance, and before delivering any pleadings or taking any other steps in the proceedings, apply to that Court to stay the proceedings, and that Court if satisfied that there

is no sufficient reason why the matter should not be referred in accordance with the submission, and that the applicant was at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, may make an order staying the proceedings.

The construction contract Exhibit 4 Clause 18 provided for arbitration and that the award of the Arbitrator shall be final and binding on the parties.

Learned counsel for the Appellants submitted that the Court below erred when it failed to consider and give effect to the arbitration clause in the contract. That was an unkind cut. Learned counsel for the Appellant nowhere suggested that the attention of the Court below was drawn to the arbitration clause early in the proceedings not to mention his failure to show that he applied to the Court below for a stay of proceedings at any stage of the proceedings. Although he raised the issue while cross examining the only witness for the Respondent, he did not even at that late stage apply for stay of proceedings. Instead he proceeded to call the only witness

for the Appellants. Learned counsel for the Appellants was therefore unfair to the Court below when he submitted that the Court below erred when it failed to give effect to the arbitration clause.

I have no difficulty therefore in resolving issue 1 against the appellants and in favour of the Respondent.

From the claim reproduced at the commencement of this judgment the Respondent sought seven different reliefs which he tagged general damages, two of which are undoubtedly tortious. These are N4, 844, 554.94 for detention of Chairman/CEO of plaintiff and N2, 500, 000.00 for calling and labelling the plaintiff incompetent.

False imprisonment is an intentional instigation of arrest

and detention of a citizen without reasonable or probable cause. See Borno State Government V. Asheik (2007) All FWLR (Pt. 357) 1006.

Although the Respondent led no shred of evidence to establish that he was detained as a result of the building contract or defamed in anyway, the Court below did not dismiss the claim for detention and defamation in the award of N12 million general damages to the Respondent. The decision of the Court on these two reliefs and five others contained at page 775 of the record is reproduced in part immediately hereunder:

I have considered the evidence of the plaintiff as given in support of the claims for general damages. I believe the plaintiffs evidence as true.

From the evidence adduced by the

plaintiff which I believe, I am of the opinion and hold that the plaintiff has proved his claim on the preponderance of evidence and is therefore entitled to general damages.

In the claim for general damages, plaintiff has listed seven (7) grounds for the reliefs sought with the various sums claimed per each relief. For all the grounds listed, I consider as adequate and award the sum of N12, 000, 000 (twelve million naira only) as general damages in favour of the plaintiff against the defendants jointly and severally.

No Court is allowed to arrive at its decision based on faith. A Courts decision must be based on facts and law. There was no basis for the belief on which the Court below found for the Respondent in the sum of N12 million for the seven reliefs not proved by the Respondent. It is the duty of a trial Court to evaluate relevant and material evidence and decide the issues raised on the pleadings before it. It cannot abandon that duty by taking refuge in the clouds of I believe and I do not believe without really evaluating the evidence of vital witnesses. If it abandons that duty, the use of the

expressions I believe and I do not believe will not stop the appeal Court from itself evaluating the evidence and see whether there is any justification for the use of such expressions. See Akibu V. Opaleye (1974) 11 SC 189 at 803.

As pointed out earlier, no shred of evidence was led by the plaintiff to prove detention or defamation claimed under general damages. It was not enough to state that the PW was forcefully removed from site and detained at Karewa Police Station as shown in page 73 of the record without showing that it was the Appellants that were responsible and the length of time he PW was detained to entitle the Respondent to the sum of N4, 844, 564.41. On the claim for N1, 200, 000 for stopping of cheque of the Respondent with Respondents Bankers AfriBank, the Respondent himself stated that the instruction to AfriBank to withhold crediting the cheque was to ensure that the Respondent issued a cheque of N300, 000 to completely recoup N800, 000 earlier paid to the Respondent. There was therefore no basis for this claim for withholding cheque. On the claim for N15 million for the Respondents inability to

utilize business opportunities due to the failure of the Appellants to remit tax deducted on the contract payments, the Respondent led no evidence to show that he had applied for a tax clearance certificate and he was told that the tax clearance certificate would not be issued to it because of failure to remit tax deducted on a one building contract, that is the contract between it and the Appellants. Respondent led no evidence to show that the contracts were reserved for it alone and that it was only this purported failure to remit the tax deducted on this contract that made it not to get those contracts or lose those business opportunities. Respondent led no evidence to show that the tax deducted from the contract was not remitted to the relevant Department. I have no difficulty also in finding that this claim for N15 million for loss of business opportunities has no basis. On the claim for N2, 005, 669.16 being effect of delayed payment the Appellant failed to show what effect the delay in payments was. He did not mention one supplier or sub contractor who intimidated him and when. This relief too has no basis. On the claim for N1.5 million for

hardship the Respondent failed to show what hardship the delay caused him as a result of the purported delay in issuing certificates. On the claim for N1, 750, 000 for non certification/payment of new additional works, the Respondent failed to establish which additional works were not certified and how he arrived at the sum claimed for non certification of new works.

The option open to a party to a valid contract is an action for an order for specific performance or for damages in breach of contract. See Ban-Nelson (Nigeria) Limited V. Moro L. G. Kwara State (2007) 8 NWLR (Pt. 1037) 623.

The Court below held that the Respondent was entitled to payment for additional works because the Appellants did not deny those claims. But there is no evidence that the parties agreed that payment would be made for any additional works under the contract Exhibit 4. The Court below therefore erred when it entered judgment in favour of the Respondent for extra works done.

The Court below also found that the Respondent was entitled to N100, 024. 25 shortfall for payments on certificate No. 8. I have read the judgment of the Court below

particular pages 772 and 773 of the record and I find that there was no basis for the award of N100, 024.25 shortfall. The Lower Court failed to show on what evidence it found the respondent entitled to the sum of N100, 024. 25 shortfall. It therefore erred when it awarded the Respondent the sum of N100, 024. 25 as shortfall.

Although the Respondent addressed the Court at length on that contract, it is surprising that learned counsel for the Respondent submitted that the Respondent did not have anything like breach of contract in the entire claim at the trial Court although the cause of action arose out of contract between the parties. I must confess that I am at a loss as to what this argument means. If by this argument, learned counsel is saying that the action at the trial Court sounded in tort, I am afraid he woefully failed to prove tort.

Issue 2 is resolved in favour of the Appellant and against the Respondent.

Award of interest is based either on statute or an agreement of the parties. Where there is no agreement, the Court should use its discretion to award interest at a reasonable rate where the circumstances warrant it.

Interest should be awarded to a plaintiff not as compensation but for being kept out of money which ought to have been paid to him. It is not necessary for a plaintiff to claim interest in his pleadings before the Court can award it in deserving cases. But it is desirable to draw attention in the pleadings to the rate desired where evidence is necessary to adduce it in support. That will help the Judge in the exercise of his discretion to award what is appropriate. Where interest is being claimed as a matter of right the proper practice is to claim entitlement to it in the writ of summons and statement of claim and evidence led in proof thereof. The Court may be satisfied with the evidence and award interest. Two types of interest are awarded by the Courts namely:

1) Pre judgment interest and

2) Post judgment interest. A Court of law is usually empowered by the Rules of Court to award post judgment interest. See Reynolds Construction Company Nig. Ltd V. Rockonoh Properties Company Ltd (2005) LPELR 2947 page 31 per Oguntade JSC, Texaco Overseas (Nig) Unlimited V. Pedmar (Nig) Ltd (2002) 13 NWLR (Pt. 785) 526, Afribank

Nig Plc V. Shanu & Anor (1997) LPELR ? 624 CA page 58 59 Akpabio JCA, Stabilini Visinoni Ltd V. Metalum Ltd (2007) LPELR 8661 page 17 18 Mshelia JCA and Ashaka V. Nwachukwu (2013) LPELR 20272 page 60 62 Bdliya JCA.

Although the Respondent neither pleaded nor led evidence in proof of 25% pre judgment interest claimed, the Court below proceeded to award it 10% interest. Interest can be awarded to a plaintiff for money kept which ought to have been paid to the plaintiff.

As pointed out earlier in this judgment, the respondent was not entitled to the judgment sums the Court below found in its favour. Therefore the issue of the appropriate interest rate on the said sums does not arise.

Issue 3 is also resolved in favour of the Appellants and against the Respondent.

For time to be of essence of a contract, the agreement as to time must be firm and unequivocal. The normal rule is that in an ordinary building, contract time is not of the essence. See Warner and Warner International Associates (Nig) Ltd V. Federal Housing Authority (1993) LPELR 3471 SC page 29 ? 30 and page 34

per Karibi Whyte JSC and Omo JSC. On the available evidence before the Court, the Respondent was supposed to have completed the execution of the contract by the 11th December, 2001. But the PW in his written statement on oath at page 69 paragraph 9 stated that the contract site was only handed over to the Respondent by the Appellants on 29th January 2002 over one month when he was supposed to have completed execution of the contract. See also Exhibit 5 showing that the contract site was only handed over to the Respondent on 29th January, 2002.

Issue 4 is resolved against the Appellants and in favour of the Respondent.

Issues 2 and 3 having been resolved in favour of the Appellants, the appeal is allowed in part. The judgment of the Court below awarding the sums of N731, 898.59, N199,690.31 and N100,024.25 as special damages in favour of the Respondent and against the Appellants jointly and severally is hereby set aside. The judgment of the Lower Court dismissing the counterclaim of the Appellants is however affirmed.

Parties to bear their respective costs.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the

privilege of reading in draft form the leading judgment just delivered by my learned Brother, James Shehu Abiriyi, J.C.A, in this appeal. I am at one with His Lordship that the appeal be allowed in part for the reasons stated in the leading judgment.

I equally abide by all the consequential orders made in the said leading judgment.

I make no order for costs.

SAIDU TANKO HUSAINI, J.C.A.: I had the advantage of reading before now the lead Judgment just delivered by my Lord, James Shehu Abiriyi, JCA. I am in total agreement with my Lord that this appeal should be allowed in part. I have nothing useful to add but to abide by other consequential orders contained in the lead Judgment.

Appearances:

U. F. Ahmed, Esq.For Appellant(s)

Philip, Esq.For Respondent(s)

Appearances

U. F. Ahmed, Esq.For Appellant

AND

Philip, Esq.For Respondent