MR. DENNIS NYIOR v. MR. UNGWANEN AKASE
(2019)LCN/13274(CA)
In The Court of Appeal of Nigeria
On Thursday, the 16th day of May, 2019
CA/MK/227/2013
RATIO
PLEADINGS: NATURE
The position of the law remains as was pronounced in Omoboriowo & Ors v. Ajasin (1984) LPELR-2643(SC) at page 26 thereof that pleadings are nothing but mere averments; and judgments on such pleadings are based strictly on evidence led. The effect of a failure of the party to call evidence in support of his own averment which is denied by the adverse party in the adverse party’s pleadings is that such averment is deemed abandoned; Ojo v. Gharoro & Ors (2006) LPELR-2383(SC); Emmanuel v. Umana & Ors (2016) LPELR-40037(SC); Akinbade & Anor v. Babatunde & Ors (2017) LPELR-43463(SC); Aomo Ltd v. Martins (2017) LPELR-43504(CA).PER ONYEKACHI AJA OTISI, J.C.A.
PLEADINGS: WHEN ISSUES ARE JOINED ON AVERMENTS BUT NO EVIDENCE IS LED TO SUPPORT SUCH ISSUES
If, therefore, issues are joined on any averments but no evidence is led to support such, the result is a striking out or a dismissal of such averments in the pleadings. The effect of the Appellant?s denial of the authenticity of his alleged statement on oath and with no other evidence adduced by him to give life to his pleadings was that his pleadings were abandoned. In that light, the evidence of the Respondent was not challenged.PER ONYEKACHI AJA OTISI, J.C.A.
EVIDENCE: EFFECT OF AN EVIDENCE NOT BEING CONTRADICTED AND NOT PATENTLY INCREDIBLE
It is settled law that where any evidence, which is not inadmissible, is not contradicted and is not patently incredible, a Court of law can act on it to regard the matter sought to be proved by that evidence as admitted by the adverse party; Omoregbe v. Lawani (1980) LPELR-2655 (SC); Okoebor v. Police Council (2003) LPELR-2458(SC).PER ONYEKACHI AJA OTISI, J.C.A.
COURTS: DUTY OF THE TRIAL COURT
However, notwithstanding the failure of a defendant to lead evidence in proof of his pleadings and the evidence of the plaintiff is, in consequence, unchallenged, the evidence relied on by the plaintiff must be admissible and credible. The trial Judge is still expected to examine whether or not the unchallenged evidence was sufficient to establish the claims made by the party in whose favour the unchallenged evidence was given;Martchem Industries (Nig) Ltd v. M.F. Kent West Africa Ltd (2005) LPELR-1842(SC); Ogunyade v. Oshunkeye & Anor (2007) LPELR-2355(SC).PER ONYEKACHI AJA OTISI, J.C.A.
DAMAGES: GENERAL DAMAGES: HOW GENERAL DAMAGES ARE CALCULATED
The issue of award of general damages in matters of breach of contract when special damages have already been awarded has been considered in a number of judicial authorities. The consistent pronouncement has been that the amount of damages to be paid to a person for breach of contract is the amount it will entail to put the person in the position he would have been if there had not been any breach of contract. The measure of damages in cases of breach of contract is in terms of the loss which is reasonably within the contemplation of the parties at the time of the contract; G. Chitex Industries Ltd v Oceanic Bank International Ltd (2005) LPELR-1293(SC); Balogun v. National Bank of Nigeria Ltd (1978) 3 SC 11, (1978) LPELR-723 (SC);Swiss-Nigerian Wood v Bogo (1970) LPELR-3128(SC); P.Z. & Company Ltd v Ogedengbe (1972) LPELR-2894(SC). Restating the position of the law on the measure of damages in contract, the Supreme Court in Wahabi v. Omonuwa (1976) LPELR-3469(SC), per Idigbe, JSC, at pages 10 – 12 of the E-Report said:
The law relating to the subject has not changed since the well-known statement of Alderson B. in Hadley v. Baxendale (1854) 9 Exch. 341 at 352-355 but the application of the rules which emerge from the statement of Alderson B., has not always been free from difficulty and, we think, it is desirable and useful to set down here in full the very lucid restatement of the rule (Hadley v. Baxendale) by ASQUITH L.J. in Victoria Laundry (Windsor) Ltd v. Newman Industries Ltd. & Anor (1949) 2 K.B. 528, which reads:
“(1) It is settled that the governing purpose of damages is to put the party whose rights have been violated in the same position, so far as money can do, as if his rights has been observed… This purpose, if relentlessly pursued, would provide him with a complete indemnity for all loss de facto resulting from a particular breach, however improbable, however unpredictable. This, in contract at least, is recognized as too harsh a rule. Hence,
(2) In cases of breach of contract, the aggrieved party is only entitled to recover such part of the loss actually resulting as was at the time of the contract reasonably foreseable as liable to result from the breach.
(3) What was at that time reasonably so foreseeable depends on the knowledge then possessed by the parties or, at all events, by the party who later commits the breach.
(4) For this purposes, knowledge ‘possessed’ is of two kinds; one imputed, the other actual.PER ONYEKACHI AJA OTISI, J.C.A.
CONTRACT: THE FIRST RULE IN CONTRACTS
Everyone, as a reasonable person, is taken to know the ordinary course of things and consequently what loss is liable to result from a breach of contract in that ordinary course. This is the subject matter of the ‘first rule’ in Hadley v. Baxendale. But to this knowledge which the contract-breaker is assumed to possess whether he actually possesses it or not, there may have to be added in a particular case knowledge which he actually possess, of special circumstances outside the ordinary course of things’, of such a kind that a breach in those special circumstances could be liable to cause more loss. Such a case attracts the operation of the ‘second rule’ so as to make additional loss also recoverable.PER ONYEKACHI AJA OTISI, J.C.A.
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
MR. DENNIS NYIOR Appellant(s)
AND
MR. UNGWANEN AKASE Respondent(s)
ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): The Respondent, an artisan involved in building and carpentry works, was contacted by the Appellant between April and June, 2009 to carry out certain building and carpentry works on his two dilapidated structures in Makurdi. The two structures consisted of a four-bedroom apartment and another four-bedroom apartment made up of two-bedroom detached apartment each. Upon negotiation, they both agreed to the sum of N600, 000.00 for the entire work. In the course of the work, the Appellant paid the sum of N180, 000.00 and thereafter failed to make further payments, even after the Respondent completed the entire work.
The Respondent averred that he made several pleas and demands to the Appellant to have the balance of N420, 00.00 paid to him, but all to no avail. In consequence, the Respondent as plaintiff instituted an action, Suit No MHC/21/2010, against the Appellant as defendant. At the conclusion of hearing, the learned trial Judge, T.A. Igoche J., in judgment delivered on 15/10/2012 found for the Respondent and ordered the Appellant to pay the balance of N420, 000.00 to the
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Respondent. The learned trial Judge also ordered general damages in the sum of N200, 000.00 against the Appellant, bringing the total judgment sum in favour of the Respondent to N620, 000.00. Aggrieved by the decision of the trial Court, the Appellant filed this appeal by Notice of Appeal filed on 8/7/2013, upon order of this Court granted on 2/7/2013 extending the time to file the appeal.
Pursuant to the Rules of this Court, the parties filed Briefs of Argument. At the hearing of this appeal, the Appellant?s Brief, which was filed on 9/2/2016, was adopted by D.V. Sefa-Aii, Esq., with O.M. Iyokpo, Esq., A.M. Owuna, Esq., and V.N. Chiahemba, Esq. Mrs. Sefa-Aii urged the Court to allow the appeal. The Respondent was served electronically with Hearing Notice through his Counsel, Edward T. Ikyoive, Esq. on 3/4/2019. But, neither the Respondent nor his Counsel was in Court and there was no reason given for their absence. In the circumstance, the Respondent?s Brief filed on 10/3/2016 was deemed argued pursuant to the provisions of Order 19 Rule 9(4) of the Court of Appeal Rules, 2016. The Appellant filed no Reply Brief.
?
Out of seven grounds of
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appeal, the Appellant distilled two issues for determination as follows:
1. Whether the Learned Trial Judge was right to enter judgment for the respondent in the sum of N480, 000.00 on the grounds that the evidence of the Respondent was uncontroverted and credible when the pleading of the Respondent is contradictory and/or irreconcilable and/or inconsistent and the evidence adduced on his behalf is manifestly incredible and unreliable in the circumstance of the case.
2. Whether the Learned Trial Judge was right to award to the Respondent the sum of N200,000.00 as damages for breach of contract after awarding the aggrieved the sum of N480,000.00 been the amount claimed for the alleged breach of contract
For the Respondent, the issues for determination were framed in this manner:
1. Whether the learned trial Judge was right to enter judgment for the Respondent in the sum of N420.000.00 (not N480, 000.00 as stated by the Appellant) based on his unchallenged, uncontroverted and credible evidence.
2. Whether awarding the sum of N200,000.00 to the Respondent as general damages in the circumstance of this case amounted to double compensation
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as argued by the Appellant.
Learned Counsel for the Respondent has correctly stated the judgment sum to be N420,000.00 and not N480,000.00. The Court shall be guided in the determination of this appeal by the issues as distilled by the parties, which seek related resolutions.
Issue 1
It was argued for the Appellant that the fact that the party to a suit was not cross-examined on a particular evidence or the evidence was not controverted under cross examination would not without more entitle the party to judgment where the evidence adduced is unreliable or the pleading upon which they are adduced is inconsistent and there are discrepancies in the evidence adduced at the trial. A party succeeds on the strength of this case and not on the weakness of the case of the other party, citing the decisions in Alkali Edv Consulting v Yobe State Government (2012) ALL FWLR (pt 627) 780 at 789; Zeneca Ltd v Jagal Pharm Ltd (2007) ALL FWLR (pt. 387) 938 at-750.
The Respondent herein had pleaded that he was contacted to carry out the total rebuilding of two dilapidated structures at the agreed sum of N600,000.00, paragraphs 3, 4, 5 and 6 of the Statement
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of Claim. He proceeded to specify the work he alleged he did and the amounts for the said specified works; paragraphs 7 and 8 of the Statement of Claim. It was argued that carrying out the total rebuilding of two dilapidated structures is not the same as carrying out specific works on the same buildings or structures. It was submitted that the pleading of the Respondent must be consistent and accurate on the claim he places before the Court for determination, otherwise his claim is bound to fail. Reliance was placed on the case of Hong-Kong v Ajibawo (2010) All FWLR (pt 511) 997 at 1012; Abubakar v Yar’adua (2009) ALL FWLR (PT 457) 1 at 138-139. It was argued that in the instant case where the Respondent averred that he was contacted to carry out the total rebuilding of two dilapidated structures at the agreed cost of N600,000.00, he cannot be allowed to detract from the initial averment and prove a separate claim of carrying out specified works, which he subsequently pleaded, distinct from “the total rebuilding”. It was submitted that the Court was not competent to make a choice between the two versions of evidence to repair the case of the Respondent.
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The Court was urged to hold that a party who has asserted that he was contacted to do a larger work but admitted that he did a lesser work in breach of the agreement can be allowed to claim for the larger work which he did not do.
It was further submitted that there were material contradictions in the evidence for the Respondent. Under cross examination, PW1 admitted that the agreement was oral and that ?somebody witnessed the agreement between us. The person is Alfred Nyior”. Alfred Nyior who testified as PW2 under cross examination however said that “at the time they entered into th
