GE INTERNATIONAL OPERATIONS (NIG) LTD V Q OIL AND GAS SERVICES LIMITED (2016)

GE INTERNATIONAL OPERATIONS (NIG) LTD V Q OIL AND GAS SERVICES LIMITED

(2016) LCN/4436(SC)

In the Supreme Court of Nigeria

Friday, March 18, 2016


Case Number: SC.207/2014

 

JUSTICES:

MAHMUD MOHAMMFD     CHJEF JUSTICE OF NIGFRIA

SULEIMAN GALADIMA     JUSTICE. SUPREME COURT

OLABODE RHODES-VIVOUR     JUSTICE. SUPREME COURT

NWALI SYLVESTER NGWUTA     JUSTICE. SUPREME COURT

MUSA DATTIJO MUHAMMAD     JUSTICE. SUPREME COURT

 

APPELLANTS

GE INTERNATIONAL OPERATIONS (NIG) LTD

RESPONDENTS

Q OIL AND GAS SERVICES LIMITED

 

 

RATIO

 

AN ACTION FOR DECLARATION OF RIGHTS

“In an action for declaration of a right, the plaintiff must satisfy the Court by credible evidence that he is entitled to the right he claims. The claim for declaration cannot be granted on admission of the defendant. See Fabunmi v. Agbe (1985) 1 NWLR (Pt 2) 799; Ochomma v. Unogi (1965) NMLR 32. In my view, the evidence to support a claim for declaration can be oral or documentary.” 

HOW TO ASSESS BREACH OF CONTRACT

“The principle of assessment for breach of contract is restitution in integrum, that is, the plaintiff in so far as money can do it shall be restored into the position in which he would have been if the breach did not occur. See Umuoetuk v. Union Bank Plc (2001) FWLR (Pt 81) 1849 ratio 8. The terms, general and special damages, are not apt in the categorization of damages for breach of contract – P2 & 10 Ltd v, Ogedengbe (1972) 1 All NLR (Pt 1) 203; Barau v. Cubuits Nig Ltd (1990) 5 NWLR (Pt. 152) 630.” 

THE BASIS FOR STRIKING OUT AN APPEAL

“It is only where all the grounds of appeal can be said to be incompetent that the appeal is liable to be struck out. See Agbatua v. Amadi (1998) 11 NWLR {Pt 572) 16; Buzu v. Garabi (2000) 13 NWLR (Pt 684) 228.”

THE PRINCIPLE OF RESTITUTION IN INTEGRUM

“However, the principle of restitution in integrum is not restitution in opulentium. It is not meant to give a windfall to the respondent. see Umuoekuk v. Union Bank Plc {supra) ratio 2; Shell 8P v. Jammal Engineering Ltd (1974)4 SC 33.”

FULL JUDGEMENT

(DELIVERED BY NWALI SYLVESTER NGWUTA, JSC) Endorsed on the Writ of Summons issued out of the Registry of the High Court of Justice Rivers State sitting at Port Harcourt on 5th March. 2010 are the Respondents’ (the plaintiff) claims against the appellant, then defendant: “1- A declaration that the Master Services Agreement between the claimant and the Defendant is still valid and subsisting. 2. A declaration that the act of the defendant in rejecting Mr. Raja Kumar a contract staff supplied by the claimant to the defendant, pursuant to the Master Services Agreement between the claimant and the defendant without any reason whatsoever amounts to a breach of the said contract, 3. A declaration that the defendant’s refusal of the claimant to fill the vacant slot/position of the contract staff as provided in their agreement is wrongful, illegal and unlawful and therefore amounts to a breach of contract. 4. The sum of twenty thousand US Dollars ($20,000) being money spent by the claimant in bringing Mr. Raja Kumar to Nigeria to work for the defendant, 5. The sum of five hundred thousand US Dollars ($500,000) only against the defendant being payment due to the claimant by the defendant for five years of the contract of skilled labour of Mr. Raja Kumar supplied by the claimant to the defendant. 6. General damages in the sum of five million US Dollars ($5,000,000) only against the defendant for breach of contract.” The facts are apparent from the claims. There is no useful purpose in repeating them. The claims are reproduced as paragraph 2 (i), (ii), ON) of the Statement of Claim, The Respondent as plaintiff also filed a written statement on oath of its Managing Director, Mr. Viswanathan Ramachandran in which the claims were repeated. Also filed was a list of documents to be relied on by the claimant, as well as the elaborate Master Services Agreement entered into by the parties. Exhibit A is the proof that the Writ of Summons, the statement of claim and other processes filed by the Respondent as plaintiff were duly served on the appellant as defendant on the 26th day of March, 2010. The defendant (appellant) failed or neglected to enter appearance or file any process in reaction to the processes served on it by the Respondent. On the 8th day of June, 2010 the Respondent as plaintiff filed a motion, pursuant to Order 20 Rule 9, Order 39 Rule 1 of the High Court (Civil Procedure) Rules, 2006 of the High Court of Rivers State asking for: “An order entering judgment in favour of this Claimant/Applicant in terms with its Writ of Summons and Statement of Claim, the defendant/respondent having failed/refused to file its statement of defence and other processes within the time limited by the Rules.” The motion was supported by an affidavit of 10 paragraphs deposed to by one Loveday Bagbi, the Litigation Secretary in the Law Firm of Uche Wali & Co, Solicitors to the claimant. It was also accompanied by a written address. When the motion was called for hearing on 26th September, 2010 the parties were absent. The Respondent/applicant in the motion was represented by Counsel but the Respondent was not represented. The motion was served on the appellant (then Respondent) on 21st September, 2010. On the 29th September, 2010 the learned trial Judge granted the application and awarded the claimant the sum of twenty thousand US Dollars ($20,000) as being the money spent by the claimant in bringing Mr. Raja Kumar to Nigeria to work for the defendant. Also awarded to the claimant is the sum of five hundred thousand US Dollars ($500,000) being payment due to the claimant by the defendant for five years of the contract of skilled labour of Mr. Raja Kumar supplied by the claimant to the defendant. The Court also awarded the sum of five million US Dollars ($5,000,000) to the claimant against the defendant for breach of contract, as well as the sum of N35,000.00 as costs in favour of the claimant. On 6th day of September, 2013 the Court of Appeal, Port Harcourt Division, struck out the appellant’s motion filed on 11/3/2013 for extension of time to appeal and stay of execution of the judgment of the trial Court, the application having been withdrawn. On the same date the Court below granted the application for trinity reliefs filed on 30/5/2013 and struck out relief 4 for a deeming order and reliefs 5 and 6 which were withdrawn by the appellant as applicant. Pursuant to the trinity reliefs granted to it, appellant prepared a notice of appeal consisting of four grounds of appeal but the date of filing was not indicated. The parties duly filed and exchanged briefs of argument. On 16/4/2014, the Court below struck out the appeal “for being incompetent as there was no evidence that the appellant paid any fee for the filing of the appeal.” The Court held further that: “Even on the merits, the Appeal lacks merits and would have been dismissed in its entirety if the appeal were competent.” Aggrieved by the judgment, the appellant on 10/6/2016, filed a Notice of Appeal on which was endorsed seven grounds of appeal. The parties, by their respective Counsel, filed and exchanged briefs of argument. In his brief of argument, learned Counsel for the appellant distilled the following four issues for determination: “1. Whether the lower Court was right when it suo motu struck out the appellant’s Notice of Appeal dated 19 September 2013 on the ground of non-payment of filing fees. (Distilled from ground one of the Notice of Appeal). 2, Whether the lower Court was right when it held that the Respondent’s witness statement on oath constitutes evidence on which the trial Court rightly granted default judgment in favour of the Respondent in respect of its claims for declaratory reliefs, special and general damages? (Distilled from ground two to four of the Notice of Appeal). 3. Whether the award of the sums of US$5,000,000 (five million US Dollars) as general damages in addition to the sum of US$520,000 (five hundred twenty thousand dollars) upheld by the tower Court are based on the same facts and amount to double compensation to the Respondent in respect of the same alleged items of loss. (Distilled from grounds 5 and 6 of the Notice of Appeal).  4. Whether the lower Court’s findings with respect to the award of special damages is inconsistent, when having held that the sum awarded as special damages includes compensation for expenses, time, energy and inconveniences suffered by the claimant in recruiting a competent worker for the Appellant, the Court also held in another breath that the said award does not include the compensation for the said items of damages? (Distilled from ground 7 of the Notice of Appeal).” In his own brief of argument, learned Counsel for the Respondent made reference to the notice of preliminary objection filed on 25/2/2015 in which it was indicated that before or at the hearing of the appeal, the Respondent would, by way of preliminary objection, pray the Court to dismiss the appeal on the ground that the appellant’s Notice of Appeal is incompetent. Except for the abridged wording in Issue 4, the Respondent adopted the four issues in the appellant brief of argument. I will herein summarise arguments of learned Counsel on the four issues and preliminary objection before dealing with the merit vel non therein. In Issue 1, learned Counsel for the appellant reproduced in parts the judgment of the Court below: “An appeal, by Order 7 Rule 11 of the Court of Appeal Rules, is deemed to have been brought when the Notice of Appeal is filed in accordance with the Rules of this Court. The fees prescribed in the 3rd Schedule of the Rules of this Court is N5,000. That, as directed by Order 12 Rule 1 of the said Rules, shall be the fee charged and the fee shall be paid for the filing of the instant appeal. It is the payment of the filing fee that vests legitimacy and validity on the Court processes …………… I have said enough. The notice of appeal at pages 49-52 of the record of appeal is duly incompetent. It is accordingly struck out.” Noting that non-payment of filing fees was not an issue in the appeal, learned Counsel impugned the procedure adopted by the lower Court in raising the issue suo motu and striking out the appeal based on it without inviting learned Counsel for the parties to address the issue. He relied on Umar v. Bayero University (1988) 4 NWLR (Pt. S6> 85. He relied on the following documents produced by the appellant as further evidence in the appeal: (i) Keystone Bank Pic teller No. 0001057 dated 18 September, 2013 for the sum of N5,600. (ii) Certified copy of the entry in the Cash Book of the High Court dated 18 September, 2013 evidencing payment of the said filing fees, (iii) Certified copy of a fetter dated 8 November, 2013 from the Appeals Registry of the High Court of Rivers State confirming that the Appellant in fact paid the appropriate filing fees in respect of the Notice of Appeal. He said that the above documents are conclusive proof that the appellant complied with Order 7 Rule 11 and Order 12 Rule 1 of the Court of Appeal Rules, 2011. He relied on Abass v. Suleman (2001) 15 NWLR {Pt. 735) 144 at 170 for the procedure to be adopted when a Court raises an issue suo motu. He argued that the failure of the Court below to afford the parties an opportunity to address it on the issue it raised suo motu is a breach of appellant’s right to fair hearing in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 as amended. PAGE| 5 He relied on Urhobo v. Oteri (1999) 2 NWLR (Pt. 589) 3 NWLR (Pt. 540) 19; Adeyemi v. Y.R.S. Ike-Oluwu & Sons Ltd (1999) 8 NWLR (Pt. 309) 27 at 140. He relied on Shuaibu v. Muazu (2014) 8 NWLR (Pt 1409) 209 for the effect of the failure by the Registrar to collect appropriate filing fees. He urged the Court to hold that the Court below descended into the arena and its sense of justice obscured to the detriment of the appellant. He relied on Okoduwa v. The State (1988) 2 NWLR (Pt. 76) 333 at 354. He urged the Court to resolve issue 1 in favour of the appellant. Issue 2 is the propriety vel non of entering judgment in default in favour of the Respondent based on the Respondent’s witness statement on oath. Learned Counsel for the appellant referred to the claim for declaratory reliefs, general and special damages which the trial Court granted pursuant to the High Court (Civil Procedure) Rules of Rivers State High Court which provides for filing of witness statements and the decision of the Court below that decisions cited to the effect that a plaintiff must adduce oral evidence in support of its claim for declaratory reliefs and special damages are not applicable since they predate the Rivers State High Court (Civil Procedure) Rules of 2006 which provides for filing of witness statements. Learned Counsel said that the judgment of the Court below is predicated on the witness statement on oath, and queried whether default judgment for declaratory reliefs, general damages and special damages can be entered without the Court taking oral evidence. He referred to Aregbesola v. Oyinlola (2011) 9 NWLR (Pt. 1253) 458 at 565 and Agagu v. Mimiko (2007) 7 NWLR (Pt. 1140) 342 and argued that the witness statement is not evidence upon which the Court can predicate judgment unless the witness enters the witness box and adopts same. According to learned Counsel, the statement on oath has no probative value unless the witness leads oral evidence adopting same. He urged the Court to resolve Issue 2 in favour of the appellant. Issue 3 queries the award of the sum of US$5,000,000 (five million US dollars) as general damages, in addition to the sum of US$520,000 (five hundred twenty thousand US dollars) based on the said facts. He argued that the awards amount to double compensation to the Respondent in respect of the same alleged items of loss. He argued that from the facts of the case special damages cannot be distinguished from the general damages as both relate to the recruitment of Mr. Kumar. He argued that in a claim for breach of contract, the injured party is placed in the position; so far as money can do so, he would have been if there had been no breach of contract. He relied on Okongwu v. NNPC (1989) 4 NWLR (Pt. 115) 296 and Ativie v. Kabelmetal Nig. Ltd (2008) 10 NWLR (Pt. 1095) 399. He relied on Odumogu v. African Continental Bank Ltd (1976) 11 SC 55 in support of his argument that general damages are not awarded as a matter of course but on sound and solid legal principles. He urged the Court to resolve Issue 3 in favour of the appellant. Issue 4 is in the finding of the lower Court on award of special damages in view of its decision that the sum awarded as special damages includes compensation for expenses, time, energy and inconvenience suffered by the claimant in recruiting a competent worker for the appellant. He argued that the judgment of the Court below is inconsistent and issue of special damages does not flow from the pleading, filed by the respondent. He reproduced the finding of the Court  below to the effect that; “The total sum of US$520,000 awarded as special damages does include compensation or damages for other legal injuries like expenses, time, energy and inconveniences that the claimant suffered to source for and interview a competent skilled labour or worker for the defendant/appellant/’ He contrasted this with the finding of the same Court that: “It (special damages) also does not include the expenses, time and energy and other inconveniences the claimant suffered to get immigration clearance for Raja Kumar to leave India and enter Nigeria in execution of the contract.” Based on the above seemingly inconsistent portions of the judgment, he argued that the Court below approbated and reprobated on the issue of special damages contrary to the settled principles of law that a Court must be consistent in its findings. He relied on Ofuani v. Nigerian Navy (2007) 8 NWLR (Pt. 1037) 470 at 483-484. He urged the Court to resolve issue 4 in favour of the appellant. In conclusion, Jearned Counsel urged the Court to allow the appeal and set aside the judgment of the lower Court as well as the judgment of the High Court of Rivers State in Suit No. PHC/397/2010. In the Respondent’s brief deemed filed on 11/1/2016, learned Counsel for the respondent argued extensively his objection to the competence of the appeal. He said that appellant did not seek and obtain Jeave of the Court below or this Court to appeal in grounds 2, 3, 4, 5 and 7 which he said amount to a violation of Section 237 (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Learned Counsel argued that ground one as well as issue one distilled therefrom render the ground and issue drawn from it as well as the argument canvassed in the brief incompetent. He said reference was made to documents which do not form part of the record. He argued that grounds 2, 3, 4, 5 and 7 in the appellant’s notice of appeal challenging the re-evaluation of facts and law by the Court below are grounds of facts and/or mixed law and facts and were filed without leave of this Court or the Court below. After a lengthy submission, he urged the Court to strike out Grounds 2, 3, 4, 5 and 7 of the appellant’s Notice of Appeal as the said grounds of facts and mixed law and facts were filed without leave. In Issue 1, learned Counsel argued that the appellant did not file the Notice of Appeal in accordance with Order 7 Rule 11 of the Court of Appeal Rules, 2011 in that the prescribed fee of N5,000 was not paid. He referred to The Nigerian Navy & Ors v. Navy Captain D. O. Labinjo (2012 LPELR 7868 SC and contended that the appellant having disobeyed the express provision of the Rules of the Court of Appeal the process filed was incompetent and the Court did not require address of Counsel for the parties to rule on the propriety vel non of hearing an appeal on an incompetent Notice of Appeal. He added that the rules of Court are meant to be obeyed and cannot be superseded by administrative arrangement in the Court’s Registry. He referred to the record and said that the appellant’s application to the lower Court to validate the incompetent Notice of Appeal was rejected but the appellant was granted extension of time to file a fresh notice of appeal. He contended that in the absence of evidence that the notice of appeal was subsequently filed as ordered by the Court; the appeal was dismissed as incompetent. He argued that in the circumstances it was misleading for the appellant to argue that the Court raised the issue of non-payment of fees suo motu. Learned Counsel said that the document sought to be tendered by the appellant to show that the filing fees was paid did not form part of the record of the trial Court and were therefore rejected. He maintained that this Court cannot consider the documents as they were not part of the record of the Court below. He relied on Oruoba v. Anekhie (1997) 5 NWLR (Pt 506) 618 at 636. He relied on Garuba v. Omokhodion (2011) 33 WRN p.l at 35 in support of his argument that the parties and the Court are bound by the record and the appellant cannot blame the lower Court for its own negligence. He relied on Omoni v. Tom (1991) 6 NWLR (Pt 195) 93 at 108 for the duty of the appellant to ensure that the record of appeal is complete as the Court cannot hear appeal on incomplete record. He argued that issue one as formulated is incompetent as the documents on which it is based are not part of the record of the lower Court or the trial Court. He relied on Umar v. Bayero University (1988) 4 NWLR (Pt 86) p.85 among others. He urged the Court to resolve issue one in favour of the respondent. Issue 2 is the propriety vel non of the Court entering a default judgment in a claim for declaratory reliefs on the basis of a witness statement on oath. Learned Counsel submitted that appellant did not challenge the pleadings, statement on oath or other documentary evidence front loaded by the respondent and so there is no basis for the argument that the lower Court did not take oral evidence, adding that unchallenged evidence is deemed admitted. He relied on Nigerian Bottling Company Plc v. Ubani (2013) LPELR-21902 SC and Union Bank of Nigeria Pic v, Mr. N. M. Okpara Chimaeze (2014) LPELR-22699 SC. He argued that since the appellant did not file a defence at the trial Court, there is nothing on the other side of the imaginary scale of justice which might need oral evidence to test the veracity of the case before the Court. He argued that the witness statement on oath was duly served on the appellant who did not challenge same and is therefore deemed to have admitted same and no further evidence was required. He relied on Ajunwa v. SPDP (Nig) Ltd (2012) All FWLR (Pt 615) SC 700. Learned Counsel relied on Newswatch Communication Ltd v. Ibrahim Attah (2006) NSCQR Vol. 26 page 438 at 458-459 where Tobi, JSC, held that: “… a Court should not ignore a motion or process before it and give decision one way or the other without considering the motion or process,..”. He urged the Court to hold that the Court below did nothing but adjudicated on the instant case on the basis of the available material in the Court file. He referred to MC investment Ltd & Anor v. Care Investment and Capital Market Ltd (2012) LPELR 7801 SC in his contention that the appellant, by disobedience to the rules of Court is deemed to have admitted the claims against it. He relied on Guaranty Trust Bank Co of New York v. Hanndy & Co (1915) 2 KB 536 for the definition of default judgment as: “… a judgment entered against a defendant who has failed to plead or otherwise defend against the plaintiff’s claims/’ Learned Counsel referred to “Civil Procedure in Nigeria” by Fidelis Nwadialo 2nd Edition page 446 where the learned author posited: “Where no statement of defence is filed in answer to the statement of claim, then by the ordinary rules of pleadings, the allegation in the latter is taken as admitted.” He referred to Order 10 Rule 2 of the Rules 2010 which provides that: “Where any defendant fails to appear, a claimant may proceed upon default of appearance under the appropriate provisions of the Rules upon proof of service.” He relied on the White Book Service 2007 Vol. 1 at pages 348 and 356 for procedure in obtaining default judgment and contended that the respondent complied with the procedure enumerated therein. Relying on Chinedu v. Mbamali (1990) 3-4 SC 32, among others, learned Counsel argued that the appellant failed to make out a case to warrant this Court to disturb the concurrent findings of the two Courts below. He said that in awarding the sum of US$5 million damages, the trial Court exercised Its discretion judicially and judiciously in that the Court below affirmed the trial Court’s judgment. He relied on Irene Nguma v. A-G Imo State (2014) LPELR 22252. He urged the Court to resolve issue 2 in favour of the respondent. Issue 3 is on the award of US$5,000,000 (five million Us Dollars) as general damages in addition to the sum of US$520,000 (five hundred twenty thousand US dollars). Learned Counsel for the respondent referred to page 121 of the record and argued that the award of general damages and special damages are not based on the same facts. He relief on Ijebu Ode LG v. Adedeji Balogun & Co (1991) 1 NWLR (Pt 166) 136 at 159 and 165 in which he said that this Court affirmed award of general and special damages as an exception to the rule that Courts frown at award of general damages in addition to award of special damages for breach of contract. He conceded that the essence of damages in contract is based on restitution integrum and relied on UBA v. BTL Industries Ltd (2006) LPELR 3404 SC where this Court held: paid in respect of the breach is the amount necessary to put the respondent wronged and aggrieved in the position he would have been had there being no breach.” He argued that the sum of $20,000 is money spent by the respondent and $500,000 is the sum the parties agreed the respondent would have earned in five years if the contract was not breached. He added that the $5,000,000 general damages was awarded at the legitimate discretion of the trial Court and endorsed by the Court below arguing that the awarded is not double compensation. He said that arguing that this heads of damages amounts to double compensation: “… merely exposes the inevitable fact that the appellant failed, refused and neglected to carefully scrutinize the damages claimed by the claimant. This is simply because the defendant/appellant herein has acted with the greatest respect as a weakling, a slumberer, the indolent or a lazy litigant as against being alive to tap into the constitutional opportunity of fair hearing provided for in Section 36 (1) of the 1999 Constitution.” He argued that the appellant did not prove a special circumstance of the Court to interfere in the concurrent findings of the two Courts below on the award of damages. He relied on Okoye v. Obiaso (2010) 22 WRN 36 at 50. He relied also on Newswatch Communication Ltd v. Ibrahim Attah (2006) NSCQLR Vol. 26 page 438 at 458-459 on the principles of fair hearing. He referred to paragraph 4 to 6 of the subsisting orders of the trial Court at page 44 of the record of appeal as indicating the award of US$5,000,000 as general damages for breach of contract agreement the appellant. He referred to paragraph 12 (iv) of the statement of claim and paragraph 15 (iv) of the deposition on oath of the Respondent’s witness on pages 9 to 11 of the record. He relied on Odulaja v. Hadded (1973) ANLR (Vo. 1) 836 at 839, 840 for the distinction between general damages which the law wrJJ presume to be the direct natural or probable consequence of the amount complained of and special damages which the law will not infer for the from the nature of the act. He contended that damages were awarded in line with the evidence and particulars of the pleadings to restore the respondent to a position he would have been if the contract was performed. He referred to pages 13-35 of the record for the documentary evidence of the contract between the parties and submitted that the Court below was right to have held that: “Where there is evidence on which general damages can be based it is not wrong for the trial Court to award general damages in a summary or default judgment.” He relied on Marine Management Associates Inc &. Anor v. National Maritime Authority (2013) All FWLR (Part 1678) SC 790 in his argument that in case of breach of contract damages is calculated on the basis of the loss sustained by the injured party. He referred to Kopek Construction Ltd v. Johnson Koleola Ekisola (2010) 3 NWLR (Pt 1182) 618 SC in his argument that “this rule against double compensation appears to have some exception, like every rule..”. He contended that learned Counsel for the appellant was wrong to have argued that the Court below was wrong in law to have awarded general and special damaged in a claim for breach of contract. He relied on Odiba v. Azege (1988) 9 NWLR (Pt 566) SC 320 at 385 in his argument that the award of general and special damages does not amount to double compensation. He urged the Court to resolve issue 3 in favour of the respondent, and to hold that the concurrent decisions of the two Courts below in favour of the respondent have not been faulted. Issue 4 is whether the award of special damages is inconsistent as the Court below found that the sum awarded does not include compensation for expenses, etc. He referred to pages 6, 7 and 44 of the record in his argument that there was no inconsistency in the findings of the Court below on the awards. He argued that the findings of the trial Court as affirmed by the Court below do not amount to approbating and reprobating. He argued that the appellant did not show that the concurrent findings of the two Courts below are pervert. He relied on Ukeje v. Ukeje (2014) 4 SC (pt 1) 1 at 27 and argued that when a finding of fact made by the trial Court is affirmed by the Court below there is a presumption that the trial Court’s conclusions are correct. He said that the Court of Appeal decided the appeal on the ratio decidendi of the judgment of the trial Court. He urged the Court to resolve the issue in favour of the respondent and to dismiss the appeal. In his reply brief, learned Counsel for the appellant urged the Court to overrule the preliminary objection. He listed the test for the determination of the nature of a ground of appeal and submitted that his grounds 2, 3 and 4 are grounds of law. In ground 5, he said that the appellant did not contest facts but simply argued that there was a case of misapplication of law to facts. He relied on Board of Custom & Excise v. Barau (1982) 10 SC 48 at 137. In ground 7, he submitted that where a ground of appeal merely deals with a matter of inference, even if it is inference of fact a ground of appeal framed on it is a ground of law. He urged the Court to discountenance the respondent’s arguments on the competence of grounds 2, 3, 4, 5 and 7 and strike out the preliminary objection. The rest of the appellant’s reply brief is headed “Appellant’s Reply on Points of Law”. Learned Counsel then re-argued the four issues seriatim. In my view, it is a supplementary brief for the purpose of emphasizing the argument in appellant’s brief. It is hardly a reply on points of law as claimed by learned Counsel The Respondent’s brief has joined issues with the appellant’s brief as expected. The appellant need not repeat the issue joined either for emphasis or expatiation. See Ochema v. The State (2008) 6-7 SC (Pt 11) page 1. I will discountenance the so-called reply on points of law. Preliminary objection: The respondent had raised an objection to the competence of this appeal, because the appellant did not seek and obtain leave to appeal from the Court of Appeal or this Honourable Court concerning Grounds two, three, four, five and seven of the appellant’s Notice of Appeal…” Respondent has challenged the competence of the appeal on the ground that appellant needed leave of the Court below or this Court to raise grounds 2, 2, 4, 5 and 7 of the Notice of Appeal. He started his argument with ground 1 which he said was premature even though he did not attack the competence of the said ground. I think the respondent appears to have been confused. He argued that ground 1 is premature even though it did not object to it. It wants the appeals struck out as incompetent even though it did not challenge all the grounds of appeal. It is only where all the grounds of appeal can be said to be incompetent that the appeal is liable to be struck out. See Agbatua v. Amadi (1998) 11 NWLR {Pt 572) 16; Buzu v. Garabi (2000) 13 NWLR (Pt 684) 228. Respondent cannot challenge the competence of the appeal when, from its own showing, not all the grounds are incompetent. One competent ground can save the appeal from being struck out as incompetent. In any case, 1 have considered the submissions of Counsel for the parties and I am inclined to agree with Counsel for the appellant that all the grounds of appeal are competent. I will determine the appeal on the four issues framed by the appellant and adopted by the Respondent Issue 1: Whether the lower Court was right when it suo motu struck out the appellant’s Notice of Appeal dated 18 September 2013 on the ground of non-payment of filing fees. (Distilled from Ground one of the Notice of Appeal). This is a compound issue and I will split it into two. 1. Did the Court strike oat the Notice of Appeal suo motu. As argued by .earned Counsel for the Respondent, appellant’s application to validate its appeal was rejected by the Court below. Appellant was rather granted extension of tome to file a fresh Notice of Appeal. Appellant did not file a fresh Notice of Appeal but proceeded with the Notice of Appeal it had unsuccessfully sought to validate. In the circumstances, the Court below cannot be said to have struck out the appellant’s Notice of Appeal suo motu. The competence vel non of the appellant’s Notice of Appeal was agitated in the motion for its validation which was rejected. 2. Whether the Court below was right to have struck the appeal for non-payment of filing fees. 1 agree with the respondent that appeal is not filed unless the appropriate filing fees are paid in compliance with Order 7 Rule 11 and Order 12 Rule 1 of the Court of Appeal Rules, 2011. Be that as it may, I think it is mechanical justice to strike out an appeal on the mere fact that on the face of the processes there is no endorsement relating to payment of fees. It is not an everyday occurrence for a process meant for filing to be smuggled in through the Registry into the Court file without due compliance with the rules relating to the payment of filing fees. It would have been more in tune with justice to enquire from the Registry whether or not fees were paid and the appellant could be asked to satisfy the Court that the fees were paid, especially when it applied to validate the appeal, perhaps by showing evidence that the fees were paid. Appellant could have been granted leave to tender fresh evidence that it paid the filing fees. Justice is not a game of hide and seek. It is an attempt, notwithstanding human imperfection, to discover the the Registry. If the Registry fails to endorse the process appropriately or fails to charge appropriate fees, the appellant could be ordered to pay the fees or to complete payment of the fees. On no account should a litigant be made to suffer for the mistake of the Registry as is apparent in this appeal. See Akpaji v. Udembu (2009) 6 NWLR (Pt 11} 38 at 545. In the circumstances, I hold the view that the lower Court erred in striking out the appeal on ground of non-payment of fees. The order striking out the appeal is hereby set aside. Issue 1 is partly resolved in favour of the appellant. Issue 2 is on the lower Court’s reliance on the respondent’s witness statement on oath to grant declaratory reliefs. In an action for declaration of a right, the plaintiff must satisfy the Court by credible evidence that he is entitled to the right he claims. The claim for declaration cannot be granted on admission of the defendant. See Fabunmi v. Agbe (1985) 1 NWLR (Pt 2) 799; Ochomma v. Unogi (1965) NMLR 32. In my view, the evidence to support a claim for declaration can be oral or documentary. As rightly held by the lower Court, the Rivers State High Court (Civil Procedure) Rules 2006 provides for the filing of witness statement. In compliance with the rules, the respondent filed a witness statement made on oath. The witness statement is in the nature of affidavit evidence. In the application for judgment in default judgment, the respondent relied on the witness statement. The application was granted pursuant to Order 20 Rule 9 of the Rivers State High Court (Civil Procedure) Rules 2010 hereunder reproduced: Order 20 Rule 1 of the 2006 Rules provides: “If the sum claimed is only for a debt or liquidated demand, and the defendant does not within the time allowed for such purpose, file a defence, the claimant may at the expiration of such time, apply for final judgment of the amount claimed with costs.” Under this rule, judgment could be entered for the plaintiff in default based on the statement of claim. The requirement that a plaintiff must by credible evidence satisfy the Court that he is PAGE| 12 entitled to the declaratory relief he claims is satisfied by the witness statement made on oath pursuant to the 2006 Rules of the Rivers State High Court, “Order 20 Rule 9: In all actions other than those in the preceding Rules of this Order, if the defendant makes default in filing a defence, the claimant may apply to a judge for judgment and such judgment shall be given upon the statement of claim as the judge shall consider the claimant to be entitled to.” The respondent served all the relevant processes on the appellant, appellant saw no need to file a defence as and when due or at all and the claim is for liquidated demand. On the facts of this case, the trial Court rightly granted the claim and the Court of Appeal affirmed same. Pre-2006 decided cases on the issue of adoption of witness statement are inapplicable because of the requirement for witness statement on oath. I resolve issue 2 in favour of the Respondent. Issue 3 is on the award of USD$5 million as general damages in addition to the sum of USD$520,000 made by the trial Court and upheld by the Court below. The principle of assessment for breach of contract is restitution in integrum, that is, the plaintiff in so far as money can do it shall be restored into the position in which he would have been if the breach did not occur. See Umuoetuk v. Union Bank Pic (2001) FWLR (Pt 81) 1849 ratio 8. The terms, general and special damages, are not apt in the categorization of damages for breach of contract – P2 & 10 Ltd v, Ogedengbo (1972) 1 All NLR (Pt 1) 203; Barau v. Cubuits Nig Ltd (1990) 5 NWLR (Pt. 152) 630. The relevant portion of the judgment of the Court below on general and special damages is hereunder reproduced: “There are however facts justifying the award of general damages to the claiman. He incurred expenses, time and energy sourcing for and interviewing a    competent skilled worker the defendant requested him to find and recruit for him. The defendant was arbitrary in the rejection of the skilled labour recruited from far away India by the claimant. The defendant gave no reason for rejecting the skilled labour. These facts are material for the award of general damages.    The total sum of US$520,000 awarded as special damages does not include  compensation or damages for other legal injuries like expenses, times,      energy and inconvenience the claimant suffered to source for and interview a competent skilled labour or worker for the defendant/appellant, It also does not indicate the expenses, time and energy and other inconveniences the claimant suffered to get immigration clearance for Raja Kumar to leave India and enter Nigeria in expectation of the contract. The claimant also averred, unchallenged that but for breach of contract he would have earned US$300,000,00 per year for the first two years, subject to the renewal for a further term of 3 years.” The crucial issue here is the propriety vel non of the sum of US$5,000,000 awarded to the respondent as general damages. The claim was not contested. However, the principle of restitution in integrum is not restitution in opuientium. It is not meant to give a windfall to the respondent. See Umuoekuk v. Union Bank Plc (supra) ratio 2; Shell BP v. Jammal Engineering Ltd (1974) 4 SC 33. Let me set out the various sums claimed and awarded. (1) US$20,000 spent on bringing Mr. Raja Kumar to Nigeria to work for the appellant. (2) US$500,000.00 being payment due to claimant by the appellant for five years of the contract. I note that the sum of US$300,000.00 per year for a period of five years was not part of the claim. If claimed there would have been double claim of US$500,000.00 and US$300,000.00 for the same period of five years. (3) Then the US$5,000,000.00 as general damages for breach of contract. The Court below rationalized the US$ 5 million claim for general damages for breach  of contract by stating that the sum of US$520,000.00 awarded the respondent as special damages: “…does not include compensation or damages for other legal injuries like expenses, time, energy and inconvenience the claimant suffered to source for and interview a competent, skilled labour or worker for the defendant/appellant. It also does not include the expenses, time and energy and other inconveniences the claimant suffered to get immigration clearance for Mr. Raja Kumar to leave India and enter Nigeria in execution of the contract. The claimant also averred, unchallenged that for breach of contract he would have earned US$300,000.00 per year for the first two years, subject to the renewal for a further term of 3 years/’ This last item of US$300,000.00 per annum for the first three years was not claimed but averred as US$300,000.00 per annum for a period of five years, not first three years. In any case, the respondent is not entitled to the sums of US$300,000.00 for three or five years in addition to US$500,000.00 for the said period of five years both as money he would have earned for the period of the contract had it not been breached. The respondent did not claim: “… compensation or damages for other legal injuries like expenses, time, energy and inconvenience the claimant suffered to source for and interview…” He had already claimed and was awarded US$20,000.00 he claimed he spent in bringing Mr. Raja Kumar to Nigeria to work for the defendant. The respondent never made any claim for: “… expenses, time and energy and other inconveniences the claimant suffered to get   immigration  clearance  for Raja Kumar…”. It was stated in paragraph 10 of the Written Statement on Oath of Mr. Viswanathan Kamachandran that the claimant “… also undertook and satisfied all immigration requirements of both Nigeria and Indian countries…” but there was no specific claim with regard to immigration as the claim for it is incorporated in the US$20,000.00 spent to bring Mr. Raja Kumar to Nigeria to work for the defendant. This would include immigration requirements, etc. In my view and based on the facts, the two heads of claim in paragraph 12 (iv) and (v) of the Statement of Claim are what will restore the respondent to the position he would have been if there was no breach of the contract. And that is all the respondent is entitled to and not general damages. The US$5,000,000.00 damages awarded to the respondent as general damages cannot stand as the respondent cannot be awarded both special and general for the same set of fact. See Ativie v. Kabel Metal Nig Ltd (2008) 10 NWLR (Pt 1095) 399 at 42. Issue 4 is an alleged inconsistency with respect to award of special damages. At page 121 of the record, the Court below held, inter alia: “The total sum of US$520,000.00 awarded as special damages does include compensation or damages for other legal injuries like expenses…”, In the same paragraph the Court held: “It also does not include expenses, time and energy…”. Obviously, the word “not” was omitted after the word “does”. This is clear from the next sentence in which it was stated that: “It also In the same paragraph the Court held: “It also does not include expenses, time and energy,..”. Obviously, the word “not” was omitted after the word “does”. This is clear from the next sentence in which it was stated that: “It also does not include..’. If the special damages does include them it would be out of place to say in the next sentence that: “It also does not include..’. It was the omission of the word “not” after the word “does” that the appellant capitalised on to argue that the award of special damages is inconsistent. It was an omission that could have been detected by a community reading of the whole portion of the judgment. The practice of law is not a game of dice. Learned Counsel for the appellant should not have built his issue 4 on what he knew, or should have known, was an omission of the word “not”. On the other hand, learned Counsel for the respondent ought to have acknowledged the error before or after correcting same. I resolve issue 4 which was predicated on the omission of the word “not” between “does” and “include” against the appellant. Be that as it may, the $20,000 awarded as claimed “being money spent by the claimant in bringing Mr. Raja Kumar to Nigeria to work for the defendant” includes all the expenses in bringing the expert to Nigeria. It includes the immigration requirements. In conclusion, the appeal succeeds in part. J set aside the US$5,000,000.00 awarded as general damages to the respondent. On the facts of the case, the award amounts to double compensation. Appeal allowed in parts only on the award of US$5,000,000,00 general damages. Parties to bear their respective costs. MAHMUD MOHAMMED, CJN:  My learned brother Ngwuta, JSC, had given me the opportunity to read his lead Judgment which has just been delivered in this appeal I entirely agree with the opinion so ably put in place by my learned brother in the lead Judgment. However, I just want to say a word or two on issue 3 in the Appellant’s brief of argument on whether the award of the sum of US $5,000,000 (Five Million US Dollars) as general damages in addition to the sum of US $520,000 (five hundred and twenty Thousand US Dollars) affirmed by the Court below, can be allowed to stand. It is not in dispute that the disagreement between the parties in this appeal, arose from the performance or execution of a written contract. The Law is well settled that where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally that is, according to the usual course of things from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the lime they made the contract, as the probable result of breach of it. In other words if one party to a contract is in breach of its terms, the other party is entitled to bring an action for damages so as to be placed in the same financial position as if the contractual terms had been duly carried out. See HADLEY VS BAXENDALE (1854) 9 Exch. 341, and S.B.N, PLC VS OPANUBl (2004) 15 NWLR (Pt.896) 437. In the instant case I entirely agree with my learned brother Ngwuta, JSC, in the lead Judgment that having regard to the nature of claims of the Plaintiff, now Appellant arising from breach of contract, the claim for general damages does not arise at all and therefore must be set aside in partly allowing this appeal. SULEIMAN GALADIMA, JSC:   I have been obliged a copy of my brother NGWUTA’S, JSC judgment just delivered. I am in complete agreement with his reasoning leading to the conclusion that the appeal succeeds in part and ought to be allowed in part. I too allow same and abide by all the consequential orders made in the lead judgment, OLABODE RHODES-VIVOUR JSC:   I had the advantage of reading in draft the judgment delivered by my learned brother, Ngwuta, JSC I agree that the appeal succeeds in part and the further orders proposed. MUSA DATTIJO MUHAMMAD, JSC:  Having had a preview of the lead judgment of my learned brother Ngwuta JSC, just delivered, I adopt his lordship’s reasoning and conclusion therein to allow the appeal in part. I also adopt the consequential orders made in the lead judgment.

 

COUNSELS

Tunde Olowu with him: Raymond Ofagbor, for the Appellant. Femi Falana, SAN with him: T. O. Waamah, Deji Morakiyo, Ernest Olawale, Marshal Abubukar for the Respondent.
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