JOHN DAVIDS CONSTRUCTION COMPANY LIMITED v. RIACUS COMPANY LIMITED & ANOR (2019)

JOHN DAVIDS CONSTRUCTION COMPANY LIMITED v. RIACUS COMPANY LIMITED & ANOR

(2019)LCN/13272(CA)

In The Court of Appeal of Nigeria

On Thursday, the 16th day of May, 2019

CA/C/179/2017

RATIO

ADMISSION: DEFINITION

To begin with, admission, which is the kernel of the issue, connotes a statement, oral or documentary, made by a party which suggests any inference as to any fact in issue or relevant fact, see Section 20 of the Evidence Act, 2011; UBA Plc. v. Jargaba (2007) 11 NWLR (Pt. 1045) 237; Oguanuhu v. Chiegboka (2013) 6 NWLR (Pt. 1351) 588. It is a concession or voluntary acknowledgement made by a party of the existence of certain facts; a statement made by a party of the existence of a fact which is relevant to the cause of his adversary; a voluntary acknowledgement made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action?, see Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534 at 558 per Fabiyi, JSC; UBA v. Jargaba (2007) 31 NSCQR 144; N.B.C.I. v. Integrated Gas (Nig.) Ltd. (2005) 4 NWLR (Pt. 916) 617; Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205; N.A.S. Ltd. v. UBA Plc. (2005) 14 NWLR (Pt. 945) 421; Alahassan v. Ishaku (2016) 10 NWLR (Pt. 1520) 230. It is classified, in the stratification of evidence, as the best evidence against the party making it, see Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 133. It constitutes a concession against the interest of a party making it, see Onovo v. Mba (2014) 14 NWLR (Pt. 1427) 391. Hence, in the view of the law, an admitted fact does not need any proof, seeOur Line v. S.C.C. Nig. Ltd. (2009) 7 SCNJ 358; Jolasun v. Bamgboye (2010) 18 NWLR (Pt. 1225) 285; Offor v. State (2012) 18 NWLR (Pt. 1333) 421; Alahassan v. Ishaku (supra); Jitte v. Okpulor (2016) 2 NWLR (Pt. 1497) 542; Cole v. Jibunoh (2016) 4 NWLR (Pt. 1503) 499; Orlanzi v. A.-G., Rivers State(2017) 6 NWLR (Pt. 1561) 224.PER OBANDE FESTUS OGBUINYA, J.C.A.

EVERY STATMENT ON A CLAIM OR COUNTER CLAIM THAT THE DEFENDANT DOES NOT INTEND TO ADMIT MUST OF NECESSITY BE DENIED
It is trite, that every allegation of fact made in a statement of claim or counter-claim, which an opponent, usually a defendant, does not intend to admit, must be specifically, or by necessarily implication, denied. In other words, it is not sufficient for such an adversary to make a general denial of the allegations or improper traverse of facts. The denial/traverse must not be evasive, ambiguous or bare otherwise it will tantamount to admission of it, see Taiwo v. Adegboro (2011) 11 NWLR (Pt. 1259) 562; Atanda v. Iliasu (2013) 6 NWLR (Pt. 1351) 529; Achilihu v. Anyatonwu (2013) 12 NWLR (Pt. 1368) 256; Oando (Nig.) Plc. v. Adijere (W/A) Ltd. (2013) 15 NWLR (Pt. 1377) 374; Ajibulu v. Ajayi (2014) 2 NWLR (Pt. 1392) 483; Danladi v. Dangiri (2015) 2 NWLR (Pt. 1442) 124.PER OBANDE FESTUS OGBUINYA, J.C.A.

REPLY: THE ESSENCE OF A REPLY
The essence of reply is to neutralise any fresh allegations in a statement of defence, see Phillips v. E.O.C. & Ind. Co. Ltd. (2013) 1 NWLR (Pt. 1336) 618; Mabamije v. Otto (2016) 13 NWLR (Pt. 1529) 171; Egesimba v. Onuzurike (2002) 15 NWLR (Pt. 791) 466. The irresistible inference drawable from the reply is plain; the appellant did not admit the facts averred in the respondents statement of claim. In effect, the filing of reply punctures the idea of admission set up by the lower Court.PER OBANDE FESTUS OGBUINYA, J.C.A.

LAW OF CONTRACTS : NATURE OF CONTRACTS

By way of prefatory remarks, a contract is a legally binding agreement between two or more persons in which rights are acquired by one party in return for acts or forbearances of the other party. For there to be an enforceable contract, there must co-exist a precise offer, an unqualified acceptance, a legal consideration and intent to create legal relation. In other words, there must be the mutuality of purpose and intention between the contracting parties. In legal province, that translates to the meeting of the minds of the contracting parties, or consensus ad idem, on the terms of the agreement. In the view of the law, an offer, a definite indication by an offeror to an offeree that he is willing to conclude a contract on his proposed terms if accepted by the other, may be verbal, written or implied from the conduct of the offeror.

Where an offeree does not accept an offer, then it mutates to a counter-offer – a statement by an offeree that has the legal effect of rejecting an offer and proposing a fresh offer to an offeror. These elementary and fundamental elements of a binding contract have been sanctified by the Supreme Court in sea of judicial authorities, see Omega Bank (Nig.) Plc. v. O.B.C. Ltd. (2005) 8 NWLR (Pt. 928) 547; Neka B.B.B. Mfg. Ltd. Co. v. A.C.B. Ltd. (2004) 2 NWLR (Pt. 858) 521; Chabasaya v. Anwasi (2010) 10 NWLR (Pt. 1201) 163; Best (Nig.) Ltd. v. B. H. (Nig.) Ltd. (2011) 5 NWLR (Pt. 1239) 95; A.-G., Rivers State v. A.-G., Akwa Ibom State (2011) 8 NWLR (Pt. 1248) 31; Bilante Int’l. Ltd. v. NDIC (2011) 15 NWLR (Pt. 1270) 407; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96; BPS Constr. & Engr. Co. Ltd. v. F.C.D.A. (2017) 10 NWLR (Pt. 1572) 1; Olowu v. Building Stock Ltd. (2018) 1 NWLR (Pt. 1601) 343.PER OBANDE FESTUS OGBUINYA, J.C.A.

EVIDENCE: DOCUMENTARY EVIDENCE: THE IMPORTANCE OF DOCUMENTARY EVIDENCE

An indepth study of the issues, amply, discloses that documentary evidence, furnished before the lower Court, form an integral part of the casus belli in this appeal. Interestingly, the case-law gives the Courts the nod to evaluate documentary evidence, see Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544. Admirably, the law, donates concurrent jurisdiction to this Court and the lower Court in evaluation of documentary evidence, see Gonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Ayuya v. Yonrin (2011) 10 NWLR (Pt 1254) 135;Eyiboh v. Abia (2012) 16 NWLR (Pt. 1325) 51; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1354); CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; UTC (Nig) Plc. v. Lawal (2014) 5 NWLR (Pt. 1400) 221; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96; Onwuzuruike v. Edoziem (2016) 6 NWLR (Pt. 1508) 215; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 529, C.K. & W.M.C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487.PER OBANDE FESTUS OGBUINYA, J.C.A.

COURT: COURTS HAVE THE LICENSE TO READ A DOCUMENT HOLISTICALLY SO AS TO MAKE SENSE OF IT HARMONIUSLY

It is also imperative to place on record, that the law grants the Court the unbridled licence to read a document holistically so as to reach and gather harmonious results of its content, see Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377/(1987) SCNJ 98; Unilife Dev. Co. Ltd. v. Adeshigbin (2001) 4 NWLR (Pt. 707) 482; ACB v. Apugo (2001) 5 NWLR (Pt. 707) 482; Mbani v. Bosi (2006) 11 NWLR (Pt. 991) 400; Bunge v. Gov. Rivers State (2006) 12 NWLR (Pt. 995) 573; Agbareh v. Minra (2008) 2 NWLR (Pt. 1071) 378; Nigerian Army v. Aminu-Kano (2010) 5 NWLR (Pt, 1188) 429; BFI Group v. BPE (2012) 18 NWLR (Pt. 1332) 209.PER OBANDE FESTUS OGBUINYA, J.C.A.

JUDGMENT: IN CONTESTING A JUDGMENT, WORNG DECISION DOES NOT DEFEAT A SOUND DECISION

After all, in the view of the law, wrong reason does not defeat a sound decision, see Ibuluya v. Dikibo (2010) 18 NWLR (Pt. 1225) 627; Afolabi v. W.S.W. Ltd. (2012) 17 NWLR (Pt. 1329) 286; Audu v. A.-G., Fed. (2013) 8 NWLR (Pt. 1355) 175. This inelastic and hallowed principle of law, with due respect, exposes the poverty of the learned appellants counsels elegant argument on the point. It is disabled and impotent to drown the contract between the parties. As a result, I have no choice than to resolve the issue two against the appellant and in favour of the respondents.PER OBANDE FESTUS OGBUINYA, J.C.A.

AGENCY: NATURE AND DEFINITION
In legal domain, an agency is a fiduciary relationship in which one party (the agent) may act on behalf of another party (the Principal) and the lawful acts of the former bind the latter in relation to a third party, provided the act was done within the scope of authority of the agent and ratified by the principal. In other words, an agent is a duly authorised representative of another. Agency relationship arises by express or implied contract and by law, via the doctrine of necessity and estoppels, see Pascutto v. Adecentro (Nig.) Ltd. (1997) 12 SCNJ 1, (1997) 11 NWLR (Pt. 529) 467; Okwejiminor v. Gbakeji (supra); Cotecna Int?l Ltd. v. Churchgate (Nig.) Ltd. (2010) 18 NWLR (Pt. 1225) 346; Osigwe v. PSPLS Mgt. Consortium Ltd. (2009) 3 NWLR (Pt. 1128) 378.PER OBANDE FESTUS OGBUINYA, J.C.A.

COMPANY LAW:ONLY A JURISTIC PERSONALITY CAN ACT AS THE ALTER EGO OF A COMPANY

It is a juristic personality that can only act an alter ego such as its agents, servants, directors or managers, seeKate Enterprise Ltd. v. Daewoo (Nig) Ltd (1985) 2 NWLR (Pt. 5) 116; Interdrill (Nig.) Ltd. v. UBA Plc (2017) 13 NWLR (Pt. 1581) 52.PER OBANDE FESTUS OGBUINYA, J.C.A.

EVIDENCE: UNCHALLENGED EVIDENCE: WHETHER THE COURTS CAN REACH A DECISION BASED ON AN UNCHALLENGED EVIDENCE

The law gives the Court the nod to act on an unchallenged evidence and rely on it to reach decision, see Cameroon Airlines v. Otutuizu (supra); Tanko v. Echendu(2011) 18 NWLR (Pt. 1224) 253; Jim-Jaja v. C.O.P., Rivers State (2013) 6 NWLR (Pt. 1350) 225; Nwakonobi v. Udeorah (2013) 7 NWLR (Pt. 1354) 499; Ighreriniovo v. S.C.C. (Nig.) Ltd. (2013) 10 NWLR (Pt.1361) 138; C.B.N v. Okojie (2015) NWLR (Pt. 1479) 231.PER OBANDE FESTUS OGBUINYA, J.C.A.

LATIN MAXIM: QUIT TACIT PER ALIUM TACIT PER SE: INTERPRETATION

The law has fixed/assigned liability to such a named principal on the footing of the legal maxim: Quit tacit per alium tacit per se – he who does an act through another is deemed in law to do so himself, see Carlen (Nig.) Ltd. v. University of Jos (1994)/SCNJ 72/(1994) 1 NWLR (Pt. 323) 631; Ataguba & Co. v. Gura (Nig.) Ltd. (2005) 8 NWLR (Pt. 927) 429; Osigwe v. PSPLS Mgt. Consortium Ltd. (2009) 3 NWLR (Pt. 1128) 378; Yisi (Nig.) Ltd. v. Trade Bank Plc (2013) 7 NWLR (Pt. 1357) 522.PER OBANDE FESTUS OGBUINYA, J.C.A.

CONTRACT: PARTIES AND COURTS ARE BOUND BY THE TERMS OF THE CONTRACT

To start with, it is trite that the parties and Courts are bound by the terms of the contracting parties. In other words, the law does not allow either the parties or the Courts to add to or subtract from terms of the contract reached by way of consensus ad idem, see Best (Nig.) Ltd. v. B. H. (Nig.) Ltd. (supra); A-G, Rivers State v. A-G, Akwa Ibom State (2011) 8 NWLR (Pt. 1248) 31; JFS Inv. Ltd. v. Brawal Line Ltd. (2010) 19 NWLR (Pt.1225) 495; Alade v. Alic (Nig.) Ltd (2010) 19 NWLR (Pt. 1226) 111; A.G. Ferrero & Co. Ltd. v. H. C. (Nig.) Ltd (2011) 13 NWLR (Pt. 1265) 592; Nwaolisah v. Nwabufo (2011) 14 NWLR (Pt.1268) 600; UBN Plc v. Ajabule (2011) 18 NWLR (Pt. 1278); P.M. Ltd. v. The “M. v. Dancing Sister” (2012) 4 NWLR (Pt. 1289) 169; Uwah v. Akpabio (2014) 7 NWLR (Pt. 1407) 172; Idufueko v. Pfizer Products Ltd (2014) 12 NWLR (Pt.1420) 96; Lewis v. UBA Plc. (2016) 6 NWLR (Pt. 1508) 329; Cannitec Int?l Co. Ltd. v. Solel Bonech (Nig.) Ltd. (2017) 10 NWLR (Pt. 1572) 66; Oforishe v. N.G.C. Ltd. (2018) 2 NWLR (Pt. 1602) 35.PER OBANDE FESTUS OGBUINYA, J.C.A.

CONTRACT: BREACH OF CONTRACT: DEFINITION

It constituted a breach of the contract. Breach of contract denotes acting contrary to the binding terms of contract, see Cameroon Airlines v. Otutuizu (2011) 4 NWLR (Pt. 1238) 512; Ahmed v. CBN (2013) 2 NWLR (Pt. 1339) 524.PER OBANDE FESTUS OGBUINYA, J.C.A.

DAMAGES: THE PURPOSE OF AWARDING DAMAGES IN CONTRACTS
See, also, Eagle Super Pack (Nig.) Ltd. v. ACB Plc (2006) 19 NWLR (Pt. 1013) 20; G.K.F.I (NIG.) Ltd. v. NITEL PIc (2009) 15 NWLR (Pt. 1164) 344.
The raison d’ etre for award of damages in contract cases is rooted in the ancient doctrine of restitutio in integrum – to restore the victim to a position as if the contract has not been breached, see UBA Plc v. BTL Industrial Ltd. (2006) 19 NWLR (Pt. 1013) 61; Oando (Nig.) Plc v. Adijere (W/A) Ltd. (supra); British Airways v. Atoyebi (2014) 13 NWLR (Pt. 1424) 253; Agu v. General Oil Ltd. (2015) 17 NWLR (Pt. 1488) 327. The principle connotes that a party, who has been adequately compensated, under one head of damages for a particular breach or injury, is not to be awarded damages in respect of the same breach or injury in another head. The law, seriously frowns on double compensation and equity deprecates it, see G. Chitex Ind. Ltd v. O.B.I. (Nig) Ltd. (2005) 14 NWLR (Pt. 945) 392; Tsokwa Motors (Nig.) Ltd. v. UBA Plc (2008) 2 NWLR (Pt. 1071) 347; Yisi (Nig.) Ltd. v. Trade Bank Plc (2013) 7 NWLR (Pt. 1357) 522; Oando (Nig.) Plc v. Adijere (W/A) Ltd. (supra); British Airways v. Atoyebi (supra); Agu v. General Oil Ltd. (supra); Mabamije v. Otto (2016) 13 NWLR (Pt. 1529) 171.PER OBANDE FESTUS OGBUINYA, J.C.A.

APPEAL: WHEN THE APPELLATE COURT WILL INTEREGER WITH AWARD OF DAMAGES OF THE LOWER COURT

An appellate Court does not usually interfere with award of damages unless: (a) the trial Court acted under a mistake of law; or (b) where the trial Court acted in disregard of some principles of law; or (c) where the trial Court acted under misapprehension of facts; or (d) where it has taken into account irrelevant matters or failed to take into account relevant matters; or (e) where injustice would result if the appellate Court does not interfere; or (f) where the amount awarded is ridiculously low or high that it must have been a wholly erroneous estimate of the damages, see SPDCN v. Tiebo VII (supra); Cameroon Airlines v. Otutuizu (supra); British Airways v. Atoyebi (supra); Agu v. General Oil Ltd. (supra).PER OBANDE FESTUS OGBUINYA, J.C.A.

LAW OF CONTRACTS: PRIVITY OF CONTRACTS: MEANING

As a necessary prelude, the ancient doctrine of privity of contract has been defined as ?that connection or relationship which exists between two or more contracting parties?, see Rebold Ind. Ltd. v. Magreola (2015) 8 NWLR (Pt. 1461) 201 at 231, per Fabiyi, JSC. The doctrine, which is part of our corpus juris, postulates, generally, that a contract cannot confer/bestow rights, or impose obligations arising under it, on any person except parties to it. Put simply, a stranger to a contract cannot gain or be bound by it even if made for his benefit, see j. E. Oshevire Ltd v. Tripoli Motors (1997) 5 NWLR (Pt. 503) 1/(1997) 4 SCNJ 246; Owodunni v. Registered Trustees, CCC Worldwide (2001) 10 NWLR (Pt. 675) 315; Makwe v. Nwukor (2001) FWLR (Pt. 63)/(2001) 14 NWLR (Pt. 733) 356; Union Beverages Ltd v. Pepsi Cola Int. Ltd (1994) 3 NWLR (Pt. 330) 1; UBA v. Jargaba (2007) NWLR (Pt. 1045); Nwuba v. Ogbuchi (2007) NWLR (Pt. 1072); Osoh v. Unity Bank Plc (2013) 9 NWLR (Pt. 1358) 1; Idufueko v. Pfizer Products Ltd. (2014) 12 NWLR (Pt. 1420) 96; Rebold Ind. Ltd. v. Magreola (supra); Reichie v. N.B.C.I(2016) 8 NWLR (Pt. 1514) 274.PER OBANDE FESTUS OGBUINYA, J.C.A.

LAW OF CONTRACT: THE DEFENCE OF WANT OF PRIVITY OF CONTRACT: WHEN IT WILL NOT AVAIL A PARTY
This defence of want of privity of contract, invented by the appellant to escape the trap of justice and liability, is not available to it. The hallowed doctrine is inelastic in application, that is, it is dotted with exceptions. A notable and relevant rider to its application is found in the province of agency relationship, see Makwe v. Nwukor (2001) 7 SCNJ 87/(2001) 14 NWLR (Pt. 733) 356. This is because, as already observed, a disclosed principle is liable for the acts of his authorised agent. It flows, that the age-long doctrine of privity of contract, which the appellant brandished as a shield against liability, is deflated/castrated by the agency relationship between it and Stephen Okposin.PER OBANDE FESTUS OGBUINYA, J.C.A.

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

Between

JOHN DAVIDS CONSTRUCTION COMPANY LTD Appellant(s)

AND

1. RIACUS COMPANY LIMITED
2. HIGH CHIEF ANAYO CY NWAOGU Respondent(s)

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal queries the correctness of the decision of the High Court of Cross River State, holden at Calabar (hereinafter addressed as ?the lower Court?), coram judice: Michael Edem, J., in suit No. HC/193/2014, delivered on 7th March, 2017. Before the lower Court, the appellant and the respondents were the defendant and the claimants respectively.

The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity. The appellant is a construction company while the first respondent carries on the business of equipment/machine leasing. The respondents alleged that the appellant hired their compactor roller machine on 19th February, 2014, for a one-day use on 21st February, 2014, at its NDDC Crospil Site at Asari Eso Calabar. The appellant paid the sum of N70,000.00 as the hire agreement fee for that day only. The respondent took the compactor roller machine to its other site at Odukpani Local Government Area, Cross River State. In the course of the appellant?s use of the machine, it fell into a ravine which resulted into the

instant death of its operator. The appellant did not return the machine to the respondents on that 21st February, 2014 as agreed and several days after. The appellant failed to return the accidented machine despite the respondents demand for its redelivery. Sequel to that, the respondents beseeched the lower Court, via a writ of summons filed on 14th May, 2014, and claimed against the appellant the following reliefs:
1. A declaration that there existed a Machine/Equipment hire contract between the claimants and the defendant.
2. A declaration that the defendant was under obligation to return the Machine/Equipment to the claimant on the 21st day of February, 2014.
3. A declaration that the defendant is in breach of the Machine/Equipment hire contract by taking same to a site outside Calabar Metropolis, a place other than was agreed and failing to return same to Calabar.
4. N2,000,000.00 (Two Million Naira) being cost of repairing the badly damaged Compactor Roller machine and conveying same to Calabar.
5. Special damages of Seventy Thousand Naira (N70,000.00) (cost of hiring the Machine/Equipment per day) from the 21st day of

February, 2014 until judgment is delivered.
6. 21% interest on the judgment sum until same is liquidated.
7. N20,000,000.00 (Twenty Million Naira) general damages for the loss and inconveniences suffered.

In reaction, the appellant joined issue with the respondents and denied liability. It denied any contract with the respondent and asserted that it incurred losses following the accident that befell the machine. Consequently, it counter-claimed against the respondents as follows:
i. A declaration that the said Stephen Okposu is the Claimant?s agent with apparent authority to act on behalf of the Claimants.
ii. A Declaration that the defendant is entitled to a refund of the rent and transportation costs paid for the use of the faulty Compactor roller machine through the owner?s agent, being the sum of N95,000 and N60,000 respectively.
iii. The sum of N7,000,000 as General damages for loss of man-hours for 7 days @ N1 million per day.
iv. The sum of 500,000 being the cost to the defendant of defending this suit.
v. Whereof, the Defendant hereby counterclaims for the total of N7,725,000.00 (Seven Million, Seven

Hundred and twenty-five Thousand Naira only).

Following the rival claims, the lower Court had a full-scale determination of the matter. In proof of the case, the respondents called two witnesses: PW1 and PW2. In disproof of the case, the appellant fielded two witnesses: DW1 and DW2. The parties tendered tons of documentary evidence. At the closure of evidence, the parties, through counsel, addressed the lower Court. In a considered judgment, delivered on 7th March, 2017, found at pages 167-178 of the record, the lower Court granted the respondents? claim partly and dismissed the appellant?s counter-claim.

The appellant was dissatisfied with the decision. Hence, on 15th May, 2017, it lodged a 6-ground notice of appeal, copied at pages 179-183 of the record, and prayed this Court for:
1. An Order to set aside the decision of the trial Court in its entirety.
2. An Order to set aside the award of the sum of N2,000,000 (Two Million Naira) being the cost of repairing the damaged Compactor Roller Machine and returning same to Calabar.
3. An Order to set aside the award of N70,000 per day as special damages being the daily cost of

hiring the machine/equipment, amounting to N78,540.000 for 1,112 days.
4. An Order to set aside the award of interest of 10% of N78,540,000 payable from the date of judgment until liquidation.

Thereafter, the parties, via counsel, filed and exchanged their respective briefs of argument in line with the procedure governing the hearing of civil appeals in this Court. The appeal was heard on 26th February, 2019.

During its hearing, learned counsel for the appellant, Uduak Ene, Esq., adopted the appellant?s brief of argument, filed on 7th November, 2018 and deemed properly filed on 26th February, 2019, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned counsel for the respondents, S. I. Ikpeme, Esq., adopted the respondents? brief of argument, filed on 26th November, 2018 and deemed properly filed on 26th February, 2019, as forming his reactions against the appeal. He urged the Court t dismiss it.

In the appellants brief of argument, learned counsel distilled six issues for determination to wit:
4.1 Whether the Appellants pleadings were an admission of the

Respondents pleadings and whether the Appellants defence raised triable issues.
4.2 Whether there was a contract of Equipment hire between the Appellant and Respondents and whether Exhibit 2 (Respondents counsels letter dated April 9, 2014) was the contract of equipment hire between the parties.
4.3 Whether the learned trial judge erred in law by not basing his decision on applicable legal principles in the law of Agency, but instead relied solely on Exhibit 2, (Respondents? counsel?s letter dated April 9, 2014 written in anticipation of proceedings) to summarily determine the issue of the agency of Stephen Okposin CW2.
4.4 Whether the Appellant is in breach of the contract of equipment hire, if any, with the Respondents.
4.5 Whether the Respondents? are entitled to special damages of N2,000,000 for cost of repairs of the Compactor Roller Machine and N74,540,000 as cost of hire of the Compactor Roller at N70,000 per day for 1,112 days from 21st day of February, 2014 till 17th day of March, 2017.
4.6 Whether the judgment was based on the preponderance evidence before the honourable trial Court.

Learned counsel for the respondents, in the respondents brief of argument, crafted three issues for determination viz:
2.1 WHETHER GIVE THE FACT, CIRCUMSTANCES AND THE EVIDENCE LED IN THIS CASE, THERE EXISTED A MACHINE/EQUIPMENT HIRE CONTRACT BETWEEN THE CLAIMANTS AND THE DEFENDANT AND WHETHER THE DEFENDANT BREACHED THE CONTRACT.
2.2 WHETHER THE DEFENDANT?S PLEADINGS IN REACTION TO THE CLAIMANTS ALLEGATION OF BREACH OF CONTRACT IN THE STATEMENT OF CLAIM IS AN ADMISSION OF FACT.
2.3 IF THE ANSWERS TO THE ABOVE ISSUES ARE IN THE AFFIRMATIVE, WHETHER THE COURT BELOW WAS RIGHT IN ITS AWARDS.

A close look at the two sets of issues shows that they are identical in substance. In fact, the respondents issues can be conveniently subsumed under the appellants. For this reason of sameness, I will decide the appeal on the issues formulated by the appellant: the undoubted owner of the appeal.

Arguments on the issues:
Issue one
Learned counsel for the appellant submitted that the appellant specifically and positively controverted the respondents entire claims. He asserted that the

lower Court failed to read the pleading as a whole as required by law. He relied on Okochi v. Animkwoi (2003) 6 SCM 113, Saraki v. Kotoye (1990) 6 SC1. He posited that the lower Court did not consider the appellant?s evidence, Exhibits 4A and 4B, and the triable issues it raised in its pleading: existence or otherwise of hire contract, agency of Stephen Okposin, PW2, the appellant?s obligations over the machine and the issue of breach of contract, which resulted to miscarriage of justice. He cited Abah v. Jabusco (Nig.) Ltd. (2008) 3 NWLR (Pt. 1075) 526 on the relationship between pleadings and evidence. He noted that the lower Court wrongly decided the case on pleadings alone. He referred to Abah v. Jabusco (Nig.) Ltd. (supra); Akintola v. Solano (1986) 2 NWLR (Pt. 24) 598. He stated a party (plaintiff) would succeed on the strength of his case and not on the weakness of the defence. He cited Ogundipe v. A.-G., Kwara State (1993) 8 NWLR (Pt. 313) 558. He added that the lower Court wrongly held that the appellants case was an admission of the case. He relied on Section 123 of the Evidence Act, 2011; Buhari v. Obasanjo (2005) 9 SCM 1. He said

that the lower Court had a duty to consider the appellant?s pleadings and evidence. He referred to UNICAL v. Essien (1996) 12 SCNJ 304; Okochi v. Animkwoi (supra).

On behalf of the respondents, learned counsel reproduced the relevant paragraphs of the pleadings of both parties. He stated that the meaning of denial of an averment as noted in Ukpanah v. Ayaya (2011) All FWLR (Pt. 589) 1163. He posited that all the averments in a statement of claim must be specifically, not generally, traversed. He relied on Ogunola v. Eiyekole (1990) 4 NWLR (Pt. 146) 632. He explained that the bases of awards of sums of money were never controverted/denied by the appellant as required by law. He cited Ikem v. Vidah Packaging Ltd. (2011) All FWLR (Pt. 601) MJSC (Pt. 1) 149. He reasoned that the appellant adopted general traverse of the pleading which amounted to admission. He added that admitted fact needed no proof. He referred to section 123 of the Evidence Act, 2011.

Issue two
Learned counsel for the appellant contended that the lower Court wrongly relied on Exhibit 2, the respondents? lawyer?s letter, to hold that there was a hire contract

between the parties. He note that it was not proved that the appellant received it or it was sent to it. He relied on the evidence of DW1 and DW2. He said that the Exhibit 2 was not part of documents listed by the appellant. He observed that the lower Court would not ignore the pleadings of a party and make a case for him. He relied onVictinio Fixed Odds Ltd. v. Ojo (2010) 3 SC (Pt. 1) 1; Thompson v. Arowolo (2003) 6 SCM 147. He explained that there was no evidence of acknowledgement in the exhibit. He stated that a party must prove his assertion and pleadings without evidence in support would be deemed abandoned. He citedB. v. Magnusson v. Koiki (1993) 12 SCNJ 114.

He posited that there was no evidence that Exhibit 2 was the hire contract and the lower Court was wrong to hold otherwise as no party made such a claim. He referred to Adeosun v. Governor of Ekiti State (2012) 1 SC (Pt. 1) 180. He described Exhibit 2 as a document prepared in anticipation of a suit and inadmissible under Section 83 (3) of the Evidence Act, 2011. He relied onGwar v. Adole (2003) FWLR (Pt. 176) 747; Consolidated Brews,erie Plc. v. Aisoweren (2002) FWLR (Pt. 116) 959.

He reasoned that the lower Court should not have attached probative value to it. He noted that the judgment occasioned a miscarriage of justice and should be set aside. He citedNwanna v. FCDA (2007) 4 SCNJ 433; Wilson v. Oshin (2000) 6 SCNJ 371. He insisted that Exhibit 2 was not evidence of contract and enumerated the elements of contract which were absent. He relied onBilante International Ltd v. NDIC (2011) 6-7 SC (Pt. 111) 113; Beta Glass Plc v. Epaco Holdings Ltd. (2011) 4 NWLR (Pt. 1237) 227.

For the respondents, learned counsel stated the meaning of contract as noted in Addeh v. Onakomaiya (2017) All FWLR (Pt. 907) 1690; BPSC&E CO. Ltd. v. FCDA (2017) All FWLR (Pt. 878 (405). He contended that all the elements of contract, between the parties, existed in Exhibit 3: the respondents? receipt issued to the appellant. He said that the appellant received Exhibit 2 since it attached it to its statement of defence. He asserted that the parties were agreed on where the machine was to work and other terms of contract. He referred to Ogboyaga Ltd. v. Nnebe (2016) All FWLR (Pt. 820) 1310.

Issue three
Learned counsel for the appellant stated that the meaning of agency as noted in Black?s Law Dictionary, 8th edition and Vulcan Gases Ltd. v. Gesellschaft Fur Inds. Gasverwertung A. G (G.I.V) (2001) 8 SCM 143. He reasoned that Stephen Okposin, PW2, was the agent of the respondents. He took the view that the lower Court wrongly held that PW2 was not an agent to either party. He asserted that the appellant merely leased the machine from PW2. He cited UTC (Nig.) Plc v. Philips (2012) 6 NWLR (Pt. 1295) 141. He said that PW2 gave evidence that he was paid commission when he acted as an agent and the appellant paid no such commission to him. He added that the evidence of PW2 showed that he was the agent of the respondents.

On the part of the respondents, learned counsel submitted that Stephen Okposin acted for the appellant because he approached the respondents for the hire of the machine, hired it on behalf of the appellant, signed on its behalf made payment of its behalf and conveyed the machine to it (the appellant).

Issue four
Learned counsel for the appellant submitted that the lower Court failed to provide the particulars of how the appellant breached the contract. He repeated

that there was no evidence of contract nor breach of it. He claimed that the staff and agent of the respondents were in control of the machine all through and no pleadings/evidence showing otherwise. He relied on Obasi Brothers Merchant Co. Ltd. v. Merchant Bank (2005) 2 SCM 95; B. v. Magnusson v. Koiki (supra).

On behalf of the respondents, learned counsel highlighted the meaning of breach of contract as noted in Cameroon Airlines v. Otutuzu (2011) All FWLR (Pt. 570) 1260. He posited that the appellant breached the contract when it took the machine to a place not stated in Exhibit 3. He cited Taiwo v. Building Stock Ltd. (2011) All FWLR (Pt. 558) 906; Addison United (Nig.) Ltd. v. Lion of Africa Ins. Ltd (2011) All FWLR (Pt. 594) 130.

Issue five
Learned counsel for the appellant submitted that the respondents did not prove strictly the claim of special damages of N2m as required by law. He relied on SPDCN Ltd. v. Tiebo VII (2005) 4 SCM. He listed facts showing that the respondents did not prove the special damages of N70,000 being cost of hiring the machine per day and the award of N78.5M ought not to have been made. He referred to SPDCN Ltd.

v. Tiebo VII; Akinkugbe v. Ewulum Holdings Nig. Ltd. (2010) 3-5 SC (Pt. 111) 155. He maintained that this Court could upturn the findings as damages. He outlined the conditions to do that which were satisfied by the appellant. He cited Ero v. Tinubu (2012) 1 NWLR (Pt. 1301) 104. He described the judgment as unenforceable. He relied on Pam v. Mohammed (2008) 5-6C SC (Pt. 1) 83.

On the side of the respondents, learned counsel argued that an appellate Court would interfere with award of damages where a trial Court acted on wrong principles. He cited Skye Bank Plc. v. Akinbami (2016) All FWLR (Pt. 820) 1328. He took the view that the lower Court followed the principles for award of damages in contract as enunciated in Nigerian Merchant Bank Plc. v. Garba (2013) All FWLR (Pt. 688) 1004, Nigerian Merchant Bank Plc. v. Garba (2013) All FWLR (Pt. 688) 1004 He explained that Exhibit 3 showed that parties contemplated that the respondent would get N70,000 per day for the use of the machine. He noted that the respondent gave evidence of the damages they suffered and proved same. He relied on MTN Communications Ltd. v. Amadi (2013) All FWLR (Pt. 670) 1329. He maintained that the awards were rightly made.

Issue six
Learned counsel adopted the submissions in issues 1-5. He postulated that the judgment was not based on the preponderance of the evidence led and should be set aside. He cited Udofu v. Aquisisu (1973) 1 SC 92; Amaechi v. INEC (2008) 1 SCNJ 1. He posited that the appellant was not a party to Exhibit 3 and ought to be sued on the basis of it. He relied on Kano State Oil & Allied Products v. Kefa Trading Co. Ltd. (sic: no citation). Negbenebor v. Negbenebor (1971) NSCC 202.

Resolution of the issues:
In interest of orderliness, I will attend to the issues in their numerical sequential presentation by the parties. To this end, I will kick start with the settlement of issue one. The meat of the appellants grouse on the issue is submissive to easy appreciation. It quarrels with the lower Courts declaration/proclamation of the appellant?s pleadings as an admission of the respondents?.

(2007) 11 NWLR (Pt. 1045) 237; Oguanuhu v. Chiegboka (2013) 6 NWLR (Pt. 1351) 588. It ?is a concession or voluntary acknowledgement made by a party of the existence of certain facts; a statement made by a party of the existence of a fact which is relevant to the cause of his adversary; a voluntary acknowledgement made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action?, see Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534 at 558 per Fabiyi, JSC; UBA v. Jargaba (2007) 31 NSCQR 144; N.B.C.I. v. Integrated Gas (Nig.) Ltd. (2005) 4 NWLR (Pt. 916) 617; Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205; N.A.S. Ltd. v. UBA Plc. (2005) 14 NWLR (Pt. 945) 421; Alahassan v. Ishaku (2016) 10 NWLR (Pt. 1520) 230. It is classified, in the stratification of evidence, as the best evidence against the party making it, see Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 133. It constitutes a concession against the interest of a party making it, see Onovo v. Mba (2014) 14 NWLR (Pt. 1427) 391. Hence, in the view of the law, an admitted fact does not need any proof, seeOur Line v. S.C.C. Nig. Ltd. (2009) 7 SCNJ 358;

Jolasun v. Bamgboye (2010) 18 NWLR (Pt. 1225) 285; Offor v. State (2012) 18 NWLR (Pt. 1333) 421; Alahassan v. Ishaku (supra); Jitte v. Okpulor (2016) 2 NWLR (Pt. 1497) 542; Cole v. Jibunoh (2016) 4 NWLR (Pt. 1503) 499; Orlanzi v. A.-G., Rivers State(2017) 6 NWLR (Pt. 1561) 224.
The lower Court?s justification for branding the appellant?s pleading as an admission is hedged on its putting ?the claimants [the respondents] to the strictest proof? of some of their assertions. It is trite, that every allegation of fact made in a statement of claim or counter-claim, which an opponent, usually a defendant, does not intend to admit, must be specifically, or by necessarily implication, denied. In other words, it is not sufficient for such an adversary to make a general denial of the allegations or improper traverse of facts. The denial/traverse must not be evasive, ambiguous or bare otherwise it will tantamount to admission of it, see Taiwo v. Adegboro (2011) 11 NWLR (Pt. 1259) 562; Atanda v. Iliasu (2013) 6 NWLR (Pt. 1351) 529; Achilihu v. Anyatonwu (2013) 12 NWLR (Pt. 1368) 256; Oando (Nig.) Plc. v. Adijere (W/A) Ltd. (2013) 15 NWLR

(Pt. 1377) 374; Ajibulu v. Ajayi (2014) 2 NWLR (Pt. 1392) 483; Danladi v. Dangiri (2015) 2 NWLR (Pt. 1442) 124.
Now, I have consulted the record, the bible of the appeal, particularly at the residence of the appellant?s 27-paragraph statement of defence, which colonises pages 25-30 thereof. I have perused it with the finery of a tooth comb. Admirably, it is obedient to clarity and comprehension. The law commands the Court to read pleading holistically in order to garner a flowing story of it, see Okochi v. Animkwoi (2003) 18 NWLR (Pt. 851) 1. I have, in total fidelity to this injunction, given a global examination to the appellant?s pleading, id est, the statement of claim, so as to ascertain its purport. I am unable to find, even with the prying eagle eye of a Court, wherein the appellant expressly or impliedly admitted the assertions in the respondents? pleading statement of claim. Contrariwise, it is evident that the appellant, in the statement of defence, explicitly and distinctly, traversed/denied the respondents? averments in their pleading. The denials were pungent, specific, unequivocal and definite. At the cradle of

paragraph 6 of the statement of defence, it was averred: ?6. The defendant [appellant] denies paragraphs 8, 9, 10, 11 and 12 and puts the claimants to the strictest proof?. The lower Court erected its reasoning on this point. However, the lower Court, with due reverence, was in deep error because that preface/preamble was followed by lengthy factual assertions of the appellant?s own side of the story. It stems from the foregoing, that the appellant?s traverse of the respondents? pleading was not generic as to be classified as an admission.
Besides, at the threshold of the statement of defence, the Court is greeted with this averment:
Save and except as herein expressly and specifically admitted, the Defendant denies every allegation of fact contained in the Claimants? statement of claim as if same were set out seriatim and specific traversed.
In the eyes of the law, the phrase has acquired a sobriquet/nickname: general traverse. Thus, the appellant employed the general traverse. Its purport, which is far reaching in adjectival law, is located in the large four walls of burden of proof. In Dairo v. Regd.

Trustees, T.A.D., Lagos (2018) 1 NWLR (Pt. 1599) 62 at 83, Nweze, JSC, incisively, intoned:
Now, the effect of general traverse has been known to generations of pleaders. It casts upon the plaintiff the burden of proving the allegations denied?. So, this general denial does no more than put the plaintiff to proof.
It is decipherable from this magisterial pronouncements, in the ex cathedra authority, that by general traverse the onus probandi of respondents? allegations resided/rested in them. Put differently, the appellant?s pleading, on the footing of the deployed general traverse, is, totally, divorced from their admission of the respondents? averments in their pleading.
That is not all. The appellant, in the twilight of its pleading, weaved a counter-claim. That, to all intents and purposes, forecloses any supposition or presumption of concession to the respondents? claims. In addition, the respondents, in reaction to the statement of defence, filed a reply to the statement of defence and counter-claim. This monopolises pages 52-56 of the record. The essence of reply is to neutralise any fresh allegations in a

statement of defence, see Phillips v. E.O.C. & Ind. Co. Ltd. (2013) 1 NWLR (Pt. 1336) 618; Mabamije v. Otto (2016) 13 NWLR (Pt. 1529) 171; Egesimba v. Onuzurike (2002) 15 NWLR (Pt. 791) 466. The irresistible inference drawable from the reply is plain; the appellant did not admit the facts averred in the respondents? statement of claim. In effect, the filing of reply punctures the idea of admission set up by the lower Court.
In the light of this juridical and universal survey of the parties? pleadings, the appellant?s pleading does not fall within the perimeter of admission of the respondents? claims. An admission must be clear, unequivocal, definite and devoid of any iota of conjecture or speculation. In sum, the lower Court, with due respect, injudiciously fractured the law when it labelled the appellant?s pleading with the unmerited appellation of improper traverse which snowballed into admission. The finding is against the tenet and spirit of the law. In the end, I have no option than to resolve the issue one in favour of the appellant and against the respondents.
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Having dispensed with issue one, I proceed to

settle issue two. The issue, which is canalised within a narrow compass, chastises the lower Court?s finding on the existence of contract between the parties on the basis of Exhibit 2. The appellant?s chief grievance is that there is no evidence of contract of hire of compactor roller machine between the parties.

Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544. Admirably, the law, donates concurrent jurisdiction to this Court and the lower Court in evaluation of documentary evidence, see Gonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Ayuya v. Yonrin (2011) 10 NWLR (Pt 1254) 135;Eyiboh v. Abia (2012) 16 NWLR (Pt. 1325) 51; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1354); CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; UTC (Nig) Plc. v. Lawal (2014) 5 NWLR (Pt. 1400) 221; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96; Onwuzuruike v. Edoziem (2016) 6 NWLR (Pt. 1508) 215; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 529, C.K. & W.M.C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487. I will tap from this co-ordinate jurisdiction in the appraisal of the army of documents in the appeal.

Apugo (2001) 5 NWLR (Pt. 707) 482; Mbani v. Bosi (2006) 11 NWLR (Pt. 991) 400; Bunge v. Gov. Rivers State (2006) 12 NWLR (Pt. 995) 573; Agbareh v. Minra (2008) 2 NWLR (Pt. 1071) 378; Nigerian Army v. Aminu-Kano (2010) 5 NWLR (Pt, 1188) 429; BFI Group v. BPE (2012) 18 NWLR (Pt. 1332) 209. I will pay due obeisance to this legal commandment, in the interpretation of documents, in order not to insult the law.
In due loyalty to the dictate of the law, displayed above, I have given a clinical examination to Exhibit 3 which is, also, copied/pasted at page 18 of the record. It is an official receipt of the first respondent which was issued out, on 19th February, 2014, to the appellant. It discloses the appellant?s payment of N70,000.00 for the hire of a roller machine for a one-day use. It plays host to the addresses of the appellant and the first respondent. It is clearly endorsed by the parties? representatives. In the presence of these sterling features in Exhibit 3, I hold the humble, view, that it exhibits the essential elements of contract. Put simply, the necessary terms of the contract between the parties were reduced into writing and

wrapped in Exhibit 3. This is the ordinary grammatical meaning of the content of Exhibit 3 which the law insists must be accorded to it, see Lewis v. UBA Plc (2016) 6 NWLR (Pt. 1508) 329; Cannitec Int?l Co. Ltd. v. Sole Boneh (Nig.) Ltd. (2017) 10 NWLR (Pt. 1572) 66; Oforishe v. N.G.C. Ltd. (2018) 2 NWLR (Pt. 1602) 35.

The appellant made heavy weather of the fact that the lower Court pegged its finding on Exhibit 2. Exhibit 2 is the letter written to the appellant by the respondents? counsel on the alleged breach of the contract. It made copious references to the transaction encased in Exhibit 3. It flows, that it was posterior to and buttressed the contract. I therefore endorse, in toto, the dazzling submission of the appellant?s counsel that Exhibit 2 is not the contract between the feuding parties and the lower Court, with due deference, wrongly relied on it to reach a finding on the existence of the contract.
?
However, the endorsement has only fetched a barren victory for the appellant on the slim issue. The reason is not far-fetched. The bottom line is that there existed a contract of hire of compactor roller machine between

the contending parties. The reason offered by the lower Court, which is an affront to the law, does not derogate from the unassailability of its ultimate finding on the existence of the contract between the parties. After all, in the view of the law, wrong reason does not defeat a sound decision, see Ibuluya v. Dikibo (2010) 18 NWLR (Pt. 1225) 627; Afolabi v. W.S.W. Ltd. (2012) 17 NWLR (Pt. 1329) 286; Audu v. A.-G., Fed. (2013) 8 NWLR (Pt. 1355) 175. This inelastic and hallowed principle of law, with due respect, exposes the poverty of the learned appellant?s counsel?s elegant argument on the point. It is disabled and impotent to drown the contract between the parties. As a result, I have no choice than to resolve the issue two against the appellant and in favour of the respondents.

That leads me to the treatment of issue three. It centres on agency relationship between the Stephen Okposin and the contracting parties. The appellant?s grouse is that Stephen Okposin was not its agent, but that of the respondents.
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In legal domain, an agency is a fiduciary relationship in which one party (the agent) may act on behalf of another party

(the Principal) and the lawful acts of the former bind the latter in relation to a third party, provided the act was done within the scope of authority of the agent and ratified by the principal. In other words, an agent is a duly authorised representative of another. Agency relationship arises by express or implied contract and by law, via the doctrine of necessity and estoppels, see Pascutto v. Adecentro (Nig.) Ltd. (1997) 12 SCNJ 1, (1997) 11 NWLR (Pt. 529) 467; Okwejiminor v. Gbakeji (supra); Cotecna Int?l Ltd. v. Churchgate (Nig.) Ltd. (2010) 18 NWLR (Pt. 1225) 346; Osigwe v. PSPLS Mgt. Consortium Ltd. (2009) 3 NWLR (Pt. 1128) 378.

For a balanced consideration of the issue, Exhibit 3, wherein the terms of the contract are encapsulated, come in handy. A merciless scrutiny of it, amply discloses that, at the its left bottom, Stephen Okposin signed it with his name hand written under the signature. The document, also unveils that the consideration, the sum of N70,000.00, was received from the appellant. By deductive reasoning, Stephen Okposin, the payer paid for and on behalf of the appellant which is an artificial person, persona ficta. It is

a juristic personality that can only act an alter ego such as its agents, servants, directors or managers, seeKate Enterprise Ltd. v. Daewoo (Nig) Ltd (1985) 2 NWLR (Pt. 5) 116; Interdrill (Nig.) Ltd. v. UBA Plc (2017) 13 NWLR (Pt. 1581) 52. On this score, it is discernible from the Exhibit 3 that Stephen Okposin transacted and entered into the contract as an authorised agent of the appellant.

That apart, in Stephen Okposin?s evidence-in-chief, which occupy pages 49-51 of the record, he was unwavering on the point that he acted as the agent of the appellant in the transaction. Even, in the heat of cross-examination, he was unshaken/unswerving on his agency role to the appellant. This critical pieces of evidence remain uncontradicted. The law gives the Court the nod to act on an unchallenged evidence and rely on it to reach decision, see Cameroon Airlines v. Otutuizu (supra); Tanko v. Echendu(2011) 18 NWLR (Pt. 1224) 253; Jim-Jaja v. C.O.P., Rivers State (2013) 6 NWLR (Pt. 1350) 225; Nwakonobi v. Udeorah (2013) 7 NWLR (Pt. 1354) 499; Ighreriniovo v. S.C.C. (Nig.) Ltd. (2013) 10 NWLR (Pt.1361) 138; C.B.N v. Okojie (2015) NWLR (Pt. 1479) 231.

It can be gleaned from the evidence, both documentary, Exhibit 3, and viva voce, that the identity of the appellant vis–vis the contract was not in doubt . The effect of the disclosure of the appellant in contract is simple. Stephen Okposin acquired the status of an agent of disclosed principal and, de jure, incurs no liability. The law has fixed/assigned liability to such a named principal on the footing of the legal maxim: Quit tacit per alium tacit per se – he who does an act through another is deemed in law to do so himself, see Carlen (Nig.) Ltd. v. University of Jos (1994)/SCNJ 72/(1994) 1 NWLR (Pt. 323) 631; Ataguba & Co. v. Gura (Nig.) Ltd. (2005) 8 NWLR (Pt. 927) 429; Osigwe v. PSPLS Mgt. Consortium Ltd. (2009) 3 NWLR (Pt. 1128) 378; Yisi (Nig.) Ltd. v. Trade Bank Plc (2013) 7 NWLR (Pt. 1357) 522. Since the presence of the appellant in the contract was revealed by its agent, Stephen Okposin, the respondents were armed with the right to sue the appellant over the enforcement of the contract. This constitutes another coup de grace in the appellant?s stand point. In sum, I resolve the issue three against the appellant and in favour of the respondents.

It is the turn of issue four. It derides the lower Court?s finding that the appellant breached the contract of hire of equipment with the respondents.

Oforishe v. N.G.C. Ltd. (2018) 2 NWLR (Pt. 1602) 35.

It is germane to revisit Exhibit 3. The consideration of N70,000.00 furnished by the appellant, through its agent, Stephen Okposin, was: ?payment for one day Roller Compactor work at Asari Eso Calabar.? This signifies that the machine was to be used at Asari Eso Calabar. There are myriad of unrefuted evidence on record that the machine was taken to Odukpani Local Government outside the agreed venue of the execution of the contract. This is clearly showcased in Exhibit 2. The place of execution of the contract is a fundamental term in it. The appellant?s unilateral decision to take the machine to a different venue, which was plagued by ravines, is a serious violation of the basic term of the contract. It constituted a breach of the contract. Breach of contract denotes acting contrary to the binding terms of contract, see Cameroon Airlines v. Otutuizu (2011) 4 NWLR (Pt. 1238) 512; Ahmed v. CBN (2013) 2 NWLR (Pt. 1339) 524. Thus, the appellant?s usage of the machine, or performance of the contract, outside the lex loci actus constituted an erosion of the essential and binding term

of the contract.
Moreover, the excerpt above, which I plucked out from Exhibit 3, amply, demonstrates that the contract between the parties was an ephemeros one, lasting for a day. There are undebunked concrete evidence on record that the machine was never returned at the end of 21st February, 2014 when it was to be utilised by the appellant. The appellant?s possession of it beyond the agreed day is another infraction of the fundamental term of the contract.
In the light of this legal anatomy, the lower Court?s finding that the appellant was in breach of machine hire contract is immaculate. It will smell of judicial sacrilege to tinker with a finding that is not hostile to the law. I resolve issue four against the appellant and in favour of the respondents.

I proceed to handle issue five. It castigates the lower Court?s award of damages against the appellant. Damages have been defined as: “that pecuniary compensation which law awards to a person for the injury he has sustained by reason of the act or default of another whether that act or default is a breach of contract or tort”, see Iyere v. B.F.F M Ltd (2008) 18 NWLR

(Pt. 1119) 300 at 345, per Muhammad, JSC; Ukudie v. SPDCN (1975) 8-11 SC 155 at 162; Neka B.B.B. Mfg. Co. Ltd. v. A.CB. Ltd (2004): 2 NWLR (PH. 858) 521. The basis and measure of damages were, graphically, captured by Idigbe, JSC, in Omonuwa v. Wahabi (1976) 4 SC 37 at 47-48 thus:
In the preparation of the claim for, as well as in the consideration of an award in consequence of a breach of contract, the measure of damages is the loss flowing naturally from the breach and incurred in direct consequence of the violation. The damages recoverable are the losses reasonably foreseeable by the parties and foreseen by them at the time of the contract as inevitably arising if one of them broke faith with the other. In the contemplation of such a loss there can be no room for claims which are merely speculative or sentimental unless these are specially provided for by the terms of the contract.
See, also, Eagle Super Pack (Nig.) Ltd. v. ACB Plc (2006) 19 NWLR (Pt. 1013) 20; G.K.F.I (NIG.) Ltd. v. NITEL PIc (2009) 15 NWLR (Pt. 1164) 344.
The raison d’ etre for award of damages in contract cases is rooted in the ancient doctrine of restitutio in integrum – to

restore the victim to a position as if the contract has not been breached, see UBA Plc v. BTL Industrial Ltd. (2006) 19 NWLR (Pt. 1013) 61; Oando (Nig.) Plc v. Adijere (W/A) Ltd. (supra); British Airways v. Atoyebi (2014) 13 NWLR (Pt. 1424) 253; Agu v. General Oil Ltd. (2015) 17 NWLR (Pt. 1488) 327. The principle connotes that a party, who has been adequately compensated, under one head of damages for a particular breach or injury, is not to be awarded damages in respect of the same breach or injury in another head. The law, seriously frowns on double compensation and equity deprecates it, see G. Chitex Ind. Ltd v. O.B.I. (Nig) Ltd. (2005) 14 NWLR (Pt. 945) 392; Tsokwa Motors (Nig.) Ltd. v. UBA Plc (2008) 2 NWLR (Pt. 1071) 347; Yisi (Nig.) Ltd. v. Trade Bank Plc (2013) 7 NWLR (Pt. 1357) 522; Oando (Nig.) Plc v. Adijere (W/A) Ltd. (supra); British Airways v. Atoyebi (supra); Agu v. General Oil Ltd. (supra); Mabamije v. Otto (2016) 13 NWLR (Pt. 1529) 171.

or (c) where the trial Court acted under misapprehension of facts; or (d) where it has taken into account irrelevant matters or failed to take into account relevant matters; or (e) where injustice would result if the appellate Court does not interfere; or (f) where the amount awarded is ridiculously low or high that it must have been a wholly erroneous estimate of the damages, seeSPDCN v. Tiebo VII (supra); Cameroon Airlines v. Otutuizu (supra); British Airways v. Atoyebi (supra); Agu v. General Oil Ltd. (supra).
Now, Exhibit 3, which embodies the terms of the contract, is explicit on the consideration for hiring the machine for a day, id est, N70,000.00. The appellant took the machine to an inhospitable environment where it was trapped in ravines occasioning the death of its operator. Also, Exhibit 2 shows that the machine rakes in N70,000.00 daily. The appellant?s denial of its receipt is displaced/perforated by its attachment of it to its pleading. Exhibits 2 and 3 are invincible documentary evidence vis–vis the proceeds which the machine generate daily. The machine has to be repaired and restored to a functional state. The parol

evidence, offered by the respondents, consolidated the incorruptible documentary evidence on the monetary damages. It follows, that there are load of evidence on record that showed that respondent sustained monetary injuries flowing from the appellant?s breach of the contract. The losses, which the respondents incurred, germinated naturally from the breach. By the same token, they were foreseeable by the parties to the contract. In all, the lower Court did not defile the law when it awarded damages to the respondents.
I had catalogued the circumstances under which an appellate Court would interfere in award of damages. I have just found that the lower Court paid due fidelity to the law when it awarded the damages in the case. As shown earlier, the lower Court did not offend the law nor disregard its principles in the awards. It was not mistaken as to the facts. It never invited matters alien to the case in its assessment of the damages. The corollary is that no injustice will arise if an appellate Court fails to intervene in the awards. On the quantum of the damages, the appellant, in its infinite wisdom, made no case for mitigation of damages

before the lower Court or even in this Court. It, therefore, starved the Court, to its detriment, of the necessary facts and evidence that would have compelled this Court to slash the damages. In a nutshell, the lower Court was/is not guilty of any of the circumstances chronicled above as to warrant and propel this Court to tamper with the award in damages. Contrariwise, the awarded damages were in total loyalty to the doctrine of restitutio in integrum as they returned the respondents to the pre-contract financial position.
Flowing from these legal expositions, the lower Court did not run foul of the law of contract on award of damages. In effect, all the strictures, which the appellant rained against the award, are idle and pale into insignificance. I resolve the issue five against the appellant and in favour of the respondents.

It remains to thrash out issue six. It has two limbs. The first limb probes into the rightness of the lower Court’s decision that was not predicated on preponderance of the evidence presented before it. An offspring of a communal amalgamation of my findings, under issues two- five, is obvious. Those findings,

which there are no extenuating circumstances to disturb, evince that the lower Court grounded its evaluation of the evidence on preponderance of evidence. On this premise, the learned appellants counsels scintillating submission on this point, with due respect, takes to flight on confrontation with those findings. It is lame.

The appellants coup de main, on the second limb, is weaved on the absence of privity of contract between it and the respondents.

Worldwide (2001) 10 NWLR (Pt. 675) 315; Makwe v. Nwukor (2001) FWLR (Pt. 63)/(2001) 14 NWLR (Pt. 733) 356; Union Beverages Ltd v. Pepsi Cola Int. Ltd (1994) 3 NWLR (Pt. 330) 1; UBA v. Jargaba (2007) NWLR (Pt. 1045); Nwuba v. Ogbuchi (2007) NWLR (Pt. 1072); Osoh v. Unity Bank Plc (2013) 9 NWLR (Pt. 1358) 1; Idufueko v. Pfizer Products Ltd. (2014) 12 NWLR (Pt. 1420) 96; Rebold Ind. Ltd. v. Magreola (supra); Reichie v. N.B.C.I(2016) 8 NWLR (Pt. 1514) 274.
This defence of want of privity of contract, invented by the appellant to escape the trap of justice and liability, is not available to it. The hallowed doctrine is inelastic in application, that is, it is dotted with exceptions. A notable and relevant rider to its application is found in the province of agency relationship, see Makwe v. Nwukor (2001) 7 SCNJ 87/(2001) 14 NWLR (Pt. 733) 356. This is because, as already observed, a disclosed principle is liable for the acts of his authorised agent. It flows, that the age-long doctrine of privity of contract, which the appellant brandished as a shield against liability, is deflated/castrated by the agency relationship between it and Stephen Okposin. In the

presence of that agency relationship, which I found after due consultation with the law, the appellant cannot take shelter under the sanctuary of the hallowed doctrine of privity of contract. It cannot exculpate it from liability.

Against the backdrop of the outcome of the two limbs, this issue is of no judicial utilitarian value to the appellant. On this score, I dishonour the appellant?s enticing invitation to crucify the lower Courts decision on the underserved altar of lack of preponderance of evidence and privity of contract. All in all, I have no choice than to resolve the issue six against the appellant and in favour of the respondents.

For the sake of completeness and clarity, it is imperative to assemble and harmonise the divergent resolutions in the appeal. I had resolved issue one in favour of the appellant and the other five issues against it. It is vice versa for the respondents. I must place on record, pronto, that the appellant only earned pyrrhic victory on the issue one resolved in its favour. The reason is plain. The other five issues, which went against it, constitute the keystone of the appeal and define its fortune.

On the whole, having resolved issues two – six against the appellant, the destiny of the appeal is certain. It is bereft of any morsel of merit and deserves the penalty of dismissal. Consequently, I dismiss the appeal. The parties shall bear the respective costs they expended in the prosecution and defence of the doomed appeal.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the priviledge of reading in draft the judgment by my learned brother Obande Festus Ogbuinya, JCA.
I agree with the reasoning and condusion reached in the judgment.
I also agree that the appeal lacks merit and I also dismiss the appeal.
I abide by the order as to costs.

YARGATA BYENCHIT NIMPAR, J.C.A.: I was given the privilege of reading in advance the judgment just delivered by my learned brother, OBANDE FESTUS OGBUINYA, JCA and I agree with the well marshaled reasoning and conclusion arrived at in the judgment.
I have nothing more to add. I too dismiss the appeal and abide by the orders made therein the lead judgment.

Appearances:

Uduak Ene, Esq. with him, Chinonso Umunnakwu, Esq, holding the brief of Alewo Etuk, Esq.For Appellant(s)

S. I. Ikpeme, Esq. holding the brief of W. S. Ogar, Esq.For Respondent(s)

Appearances

Uduak Ene, Esq. with him, Chinonso Umunnakwu, Esq, holding the brief of Alewo Etuk, Esq.For Appellant

AND

S. I. Ikpeme, Esq. holding the brief of W. S. Ogar, Esq.For Respondent