NWOSU NORTH AND SOUTH INTERNATIONAL LIMITED & ANOR v. NIGERIA INTERNATIONAL TRADING AND INDUSTRIAL CORPORATION LIMITED (2014)

NWOSU NORTH AND SOUTH INTERNATIONAL LIMITED & ANOR v. NIGERIA INTERNATIONAL TRADING AND INDUSTRIAL CORPORATION LIMITED

(2014)LCN/7295(CA)

In The Court of Appeal of Nigeria

On Friday, the 20th day of June, 2014

CA/J/75/2011

RATIO

EVIDENCE: EXAMINING A WITNESS; THE DUTY OF THE COUNSEL TO CONFRONT THE WITNESS WITH THE ORAL OR DOCUMENTARY EVIDENCE AS THEY TESTIFIES IN THE WITNESS BOX

Where it is intended to discredit a witness, Counsel is bound to confront him with the oral or documentary evidence as they or each testifies in the witness box. This will give the witness the opportunity of explaining why there is contradiction, if any, in his or her oral evidence. See Nwobodu vs. Onoh (1984) 1 SCNLR 1 at 88. It is improper for a party not to be cross-examined or confronted with evidence, be it oral or documentary, only to wait to adduce evidence at the defence stage. See Agbonifo vs. Aiwereoba (1988) 2 SCNJ 146; Babalola vs. The State (1989) 7 SCNJ 127 at 139; Nkwa vs. C.O.P. (1977) N.N.L.R 98 at 103 and Okosi vs. The State (1989) 2 SCNJ 183. per. JOSEPH TINE TUR, J.C.A.

COURT: INTERFERENCE; WHETHER AN APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT THAT IS NOT PERVERSE

In Customs and Excise Board vs Barau (1982) 2 NCR 1 21 – 23, Fatayi-Williams C. J. N. held at pages as follows: In view of the above, I am not surprised that the learned Chief Judge disbelieved the belated testimony of the respondent that he had no knowledge of the prohibition order or that he had no fraudulent intent to evade the prohibition order or be concerned in the said evasion. Having made his findings, correctly in my opinion, on the basis of the evidence adduced before him, and bearing in mind that he was the only person in a position to assess the credibility of the respondent from his demeanour in the witness-box and otherwise, it is not open to the Federal Court of Appeal to substitute its own assessment of the respondent’s testimony for that of the learned Chief Judge. The Federal Court of Appeal is certainly in error in so doing. In Akinloye vs Eyiyola (2) this court held (1968) N.M.L.R. at 95) that –
“where a court of trial unquestionably evaluates the evidence and appraises the facts, it is not the business of a court of appeal to substitute its own views for the views of the trial court”.
Again, in Fabumiyi vs Obaji (14) this court dealt with the evaluation of evidence by an appeal court in more detail as follows 1968 N.M.L.R. at 247):
“A court of appeal should not easily disturb the findings of fact of a trial Judge who had the singular opportunity of listening to the witnesses and watching their performances. It is settled law, however, that such findings of facts or the inferences from them may be questioned in certain circumstances. See Benmax vs Austin Motor Co. Ltd. (1955) A.C. 370); Akinola vs Fatoyinbo Oluwo & ors (1962) All N.L.R, 224); Lawal Braimoh Fatoyinbo & Ors vs Selistu Abike Williams (1 F.S.C. 67. The result of the authorities is simply this, that where the facts found by the Court of trial are wrongly applied to the circumstances of the case or where the inferences drawn from those facts are erroneous or indeed where the findings of fact are not reasonably justified, or supported by the credible evidence given in the case, a Court of Appeal, is in as much a good position to deal with he facts and findings as the Court of trial.”(These words do not appear in the report of the case at (1967) 1 All N.L.R. 241.)
It only remains for me to add that, having regard to my own observation on the evidence made earlier, none of the reasons which could justify reevaluation the evidence by an appeal court are present in the case in hand.
In 1974, this court again considered the limitations placed on a court of appeal in reevaluation evidence accepted by a trial court in Balogun vs Agboola (6) We observed in our judgment in that case as follows (1974) 1 All N.L.R at 73; (1974) 10 S.C. at 118-119:
“The ascription of probative values to evidence is a matter primarily for the court of trial and it is not the business of a court of appeal to substitute its own views of undisputed facts for the views of the trial court. Interference by a court of appeal with respect to issues of fact is by law confined within very narrow and limited dimensions and we are clearly of the view in this vase that the Western State Court of Appeal took a mistaken view of the law when it embarked, as it did, on a fresh appraisal of the evidence of witnesses to whom the learned trial judge had himself listened and whom he had s.een face to face when they (the court of appeal) were dealing only with the cold sullen print of the records before them.” per. JOSEPH TINE TUR, J.C.A.

EVIDENCE: DOCUMENTARY EVIDENCE; THE ADMISSIBILITY OF A DOCUMENT WHICH OUGHT TO SIGNED BUT IS NOT

DAMAGES: GENERAL DAMAGES; WHETHER GENERAL DAMAGES ARE NOT AWARDED IN BREACHES OF CONTRACT
In STROMS BRUKS AKTIE BOLAG vs HUTCHISON, Lord MACNAGHTEN, at pages 525-526, after stating that he thought the division into general and special damages was more appropriate to tort than to contract, said: “General damages…are such as the law will presume to be the direct natural or probable consequence of the act complained of. Special damages on the other hand, are nature of the act. They are exceptional in their character and, therefore, they must be claimed specially and proved strictly.” Also in Alraine (Nig.) Ltd. vs M. A Eshiett (1977) 1 S.C. 89 at 96 the Supreme Court held that: “The award of N1,196 as general damages was attacked in the third ground of appeal. The learned judge was in error to have made an award of general damages as in cases of breach of contract, the plaintiff is only entitled to damages naturally resulting from the breach – which in this case was fully covered by items 1 and 2 of the claim. (See Swiss-Nigerian Wood Industries Ltd. Vs Bogo (SC.14/70 dated 3/7/70; P. Z. & Co. Ltd. Vs Ogedengbe (1972) 1 All N.L.R. (Part 1) 202; and Nigerian Produce Marketing Board vs A. O. Adewunmi (1972) 1 All N.L.R. (Part 2) 433). In our view, the award of N1,196 as general damages cannot stand. See also Okongwu vs. NNPC (1989) 7 SCNJ 100. General damages are not awarded in breaches of contract, but in tort. per. JOSEPH TINE TUR, J.C.A.

AWARD OF INTERESTS; PREJUDGMENT INTEREST; WHEN CAN THE COURT AWARD PREJUDGMENT INTEREST
The court will readily award a prejudgment interest where the Plaintiff is a Commercial Bank, and the rate of interest fixed at the inception of the loan or overdraft transaction; whereas if the plaintiff was a private person, or the loan stated to be a “friendly loan” and nothing said about interest charges at the time of entering into the loan agreement, the court will not award interest in such circumstances. (See the cases of U.B.N vs Sax (Nig.) Ltd (1994) 8 NWLR (Pt.361) 150; U.B.N. Ltd vs Ozigi (1994) 8 NWLR (pt.361)150; U.B.N. Ltd vs. Ozigi (1994) 3 NWLR (pt.333) 385. See also the recent case of U.B.N. Ltd vs. Salami (1998) 3 NWLR (pt.538).” per. JOSEPH TINE TUR, J.C.A.

COURT: DUTY OF COURTS; THE DUTY OF AN APPELLATE COURT AND WHAT IS AN APPEAL

The duty of an appellate Court is to review the decisions of lower Courts or tribunals. In Appellate Courts in the United States by Daniel John Meador and Jordana Simone Bernstein, 1994 the learned authors opined thus:
“Appellate Courts are among the most important institution’s of governance in the United States. Through their review of trial Court and administrative agency decisions they ensure that those bodies function lawfully and that litigants receive justice under law.
Moreover, they provide authoritative interpretations of statutory and constitutional provisions and control the shaping of the common law in response to ever-changing circumstances; they are thus major sources of law.” An “appeal” is any proceeding taken to rectify an erroneous decision of a court of tribunal by bringing the decision to the appellate court or tribunal for rectification. The right of appeal may be provided by a statute or the Constitution. An appellate Court, after hearing, may substitute its own decision against which the appeal was brought, vary or dismiss the appeal where the appellant is unable to sustain the complaint: Order 19 rule 11 (1) and (2) of the Court of Appeal Rules provides that.
“11(1) The court shall have power to give any judgment or make any order that ought to have been made, and to make such further order as the case may require including any order as to costs.
(2) The powers contained in sub-rule (1) of this Rule may be exercised by the Court, notwithstanding that the Appellant may have asked that part only of a decision may be reversed or varied, and may also be exercised in favour of all or any of the Respondents or parties, although such Respondents or parties may not have appealed from or complained of decision.”
Section 15 of the court of Appeal Act, 2004 empowers the court of Appeal to generally “…have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purposes of such re-hearing…” For the above reasons the judgment of a Court of Appeal becomes that of the court below. See Oyefeso vs Tola (1968) N.M.L.R. 317 and Chief Bola Ige vs Dr Victor Olunleye (1984) 1 SCNLR 158 at 178, where Aniagolu J.S.C held that:- “I agree with the view expressed…..that the judgment of an Appeal Court, allowing an appeal, has the effect of substituting the Appeal Court judgement for the judgement of the court below set aside, making the decision appealed against disappear altogether.” per. JOSEPH TINE TUR, J.C.A.

JUSTICES

TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria

Between

1. NWOSU NORTH AND SOUTH INTERNATIONAL LIMITED.
2. CHUKWUEMEKA NWOSU
(Substituted for Chief ANTHONY O. NWOSU-DECEASED) Appellant(s)

AND

NIGERIA INTERNATIONAL TRADING AND INDUSTRIAL CORPORATION LIMITED Respondent(s)

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): Nwosu North and South International Limited I shall call (“the appellant”) instituted a suit against Nigeria International Trading and Industrial Corporation Limited I shall call (“the respondent”) before the High Court of Justice, Jos, Plateau State on 28th January, 1975 when I was just entering the University. Twenty Nine years have passed and I am delivering judgment in the dispute. Meanwhile Anthony Nwosu died in the course of the proceedings. He is not alive to know the outcome of the suit. What kind of judicial system is this? There has to be improvement on the justice delivery system in Nigeria. Upon service of the processes the respondent filed a Statement of Defence and a Counter-claim. The appellants’ claim was eventually struck out for lack of prosecution. A Counter-claim being an independent cause of action, the respondent proceeded to trial. By the time hearing commenced the appellants’ statement of Defence/Joint Defence to the Counter-claim had undergone series of amendments. The last amendment was titled. “Defendants’ Further Amended Joint Defence to Counter-Claim” filed on 30th June, 2006. The respondent also amended her Counter-claim titled “Amended Statement of Defence and Counter-Claim”. The respondent also filed a “Counter-Claimant’s reply to Defence to Counter-Claim.” The respondent called PW1-PW5 to testify on her behalf. The appellant called DW1 and closed the defence. Learned Counsel submitted written addresses. The learned trial Judge delivered judgment in favour of the respondent.

The decision of the Lower Court is under attack in this appeal. The original Notice of Appeal was filed on 1st January, 2010 and another on 21st December, 2010. With time the appellant sought and was granted leave to amend the Notices of Appeal into one Notice of Appeal. The last amended Notice of Appeal is tagged “Further Amended Notice of Appeal” filed on 7th December, 2012 with a deeming order on 5th December, 2012. Twenty nine grounds of appeal accompany the Further Amended Notice of Appeal from which the learned Counsel distilled eleven issues for determination on behalf of the appellant on 21st February, 2013. The learned Counsel to the respondent also distilled ten issues for determination. When the appeal came up for hearing on 6th May, 2014 Counsel adopted their respective briefs of argument.

APPELLANTS’ ISSUES:
The appellants couched the issues for determination:
“1. Was the learned trial Court, right in discountenancing the evidence of DW1 and holing that it (evidence) of Dw1 cannot stand? (Ground 3).
2. In view of the agreement (Exhibit “2”) between the 1st Appellant and the respondent, and the evidence before the learned trial Court, was the learned trial court right in finding that the Respondent paid the second (2nd) installment of the purchase price of the properties in dispute in a car and a bus notwithstanding the delivery date of the vehicles? (Grounds 1, 6, 8, 9, 10, 11, 12, 15, 16, and 17).
3. Was the learned trial court right in holding that the respondent paid the 3rd installment of the purchase price of the properties in issue with 366 cartons of whisky and that there is no evidence of the return of the cartons of whisky to the respondent? (Grounds 7 and 18).
4. Was learned trial court right in awarding the sum of N34,832,106.07 to the respondent as total net income and interest capitatized thereto from 21st November, 1970 to 31st December, 1994?
(Grounds 23 and 24).
5. Was the learned trial court right in awarding the respondent the sum of N3,248.87 per day from 1st January, 1995 till the date of judgment, and 10% interest thereon from the date of judgment till the final liquidation? (Ground 25).
6. Was the learned trial court right in awarding the sum of ?1845.10 to the respondent who neither claimed nor proved such amount as due to it?
(Ground 27).
7. Was the learned trial court right in awarding the respondent the sum of N350,000 as damages?
(Ground 28).
8. Was the learned trial Judge right when it held that the 2nd appellant was fraudulent and that the 2nd appellant was bound to render account of the hotel business? (Grounds 23 and 24).
9. Was the learned trial court right in law when it held that the agreement between the patties (Exhibit “2”) was valid and subsisting, having not been terminated by either of the parties and that the only remedy available to the 1st appellant was specific performance? (Grounds 4, 5 and 14).
10. Was the learned trial Court right in making an order of specific performance in favour of respondent in this case? (Ground 13 and 19).
11. Did the failure of the learned trial Judge to deliver his judgment within 3 months after the conclusion of evidence and final addresses as prescribed by Section 294(1) of the 1999 Constitution (as amended), occasion a miscarriage of justice and rendered the said judgment a nullity? (Ground 29).”
RESPONDENT:
The respondent’s learned counsel distilled the following issues for determination:
“1. Was the learned trial Judge right when it held that the evidence of Dw1 in relation to 2nd and 3rd installaments cannot stand – being hearsay evidence (Ground 3).
2. Was the trial Court right when it found that the Respondent had paid the second installment and if the answer is in the positive, can the Appellants after receiving the 2nd installment in kind turn around to allege that it is contrary to Exhibit “2” (Grounds 1, 6, 8, 9, 10, 11, 12, 15, 16, and 17).
3. Whether in the circumstances of the case the trial Court was right that the 3rd installment was paid by the respondent with 366 cartons of whisky which the 2nd appellant personally requested for (Grounds 7 and 18).
4. Whether the learned trial Court was right when it held that the 2nd appellant was fraudulent in the transaction and was bound to render account to the respondent (Grounds 23 and 24).
5. Was the learned trial Court right in awarding the sum of N34,832,106.07 to the respondent as total net income and interest capitalized thereto from 21st November, 1970 to 31st December, 1974? (Grounds 2 and 21).
6. Was the learned trial Court right in awarding the respondent the sum of N3,248.87 per day from 1st January, 1995 till the date of judgment and thereafter until final liquidation? (Ground 25).
7. Was the learned trial Court right in awarding the respondent the sum of N350,000 as damages? (Ground 28).
8. Was the learned trial Judge right when it made order for specific performance against the Appellants (Grounds 4, 5, 13, 14 and 19).
9. Did the failure of the learned trial Judge to deliver his judgment within 3 months after the conclusion of evidence and final addresses as prescribed by Section 294(1) of the 1999 Constitution (as amended), occasion a miscarriage of justice and rendered the said judgment a nullity? (Ground 29).
10. Whether the learned trial Judge was right when he awarded the sum of ?1845.10 to the Respondent. (Ground 27).”

These issues are unnecessarily superfluous and prolix.
The parties and the Court are bound by the pleadings. See African Continental Seaways Ltd. vs. Nigeria Dredging Road and General Works Ltd. (1977) 5 SC 235 at 250 and Temco Eng. & Co. Ltd. vs. S.B.N. Ltd. (1995) 5 NWLR (Pt.397) 607. The pleadings filed and exchanged by the parties usually determines the issues in controversy. See Ehimare vs. Emhonyon (1985) 2 SC 49 at pages 65-66; Akintola vs. Solano (1986) 2 NWLR (Pt.24) 598; Ishola vs. UBN Ltd. (2005) All FWLR (Pt.256) 1202 at 1211 paragraph “D”.

An issue or issues raised for determination by an appellate Court should be material, which, if determined, will resolve the controversy between the parties.
A point in dispute between two or more parties which resulted into submitting the dispute to the Lower Court is that which should be re-submitted in the court of Appeal where a party is not satisfied with the outcome of the resolution in the trial court. An issue that is not necessary for determination or even if determined in favour of a party, may not end the controversy ought not to be formulated for determination on appeal for it may serve no purpose even if the complaint is upheld in favour of the appellant or cross-appellant especially where there is no miscarriage of justice.
An issue to be material must not only arise from the pleadings but the judgment of the learned trial Judge coupled with the grounds of appeal. It is the appellant who is dissatisfied with the decision of the Lower Court that order 18 rules 2 and 3(1) of the Court of Appeal Rules, 2011 enjoins that his brief shall contain an address or addresses for service and what are, in the Appellant’s view, the issues arising in the appeal as well as amended or additional grounds of appeal. The duty of the respondent is to file a brief which shall answer all material points of substance contained in the Appellant’s brief and contain all points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed. See Order 18 rules 4(1) and (2) of the Rules (supra).

Nnaemeka-Agu, JSC held in Atanda & Ors. vs. Akanji & Ors. (1989) 2 NSCC 511 at 537 that without a Cross-appeal nor a Respondent’s Notice, the respondent is not to formulate issues in nubibus, namely, hanging in the air. They can only adopt the issues formulated by the appellant based on the grounds of appeal, though the issue re-formulated by respondent ought not to depart from the grounds of appeal. But some decisions of the Supreme Court have maintained that Courts should not suo motu formulate issues for determination without hearing Counsel or their clients as this constitutes a breach of fair hearing under Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999. See Adeogun vs. Fashogbon (2008) 17 NWLR (Pt.1115) 149 at 187; Nwokoro vs. Onuma (1990) 3 NWLR (Pt.136) 22 at 35; Anie vs. Chief Uzorka (1993) 8 NWLR (Pt.309) 1 at 16 and Ugo vs. Ohiekwe (1989) 1 NWLR (Pt.99) 1 at 16. These decisions seem to me to be in consonance with the provisions ofOrder 18 rules 1 and 3(1), 4(1) and (2) of the Court of Appeal Rules, 2011. However, in peculiar situations such as where the Court is faced with eleven issues for determination couched from 29 grounds of appeal and ten issues from the respondent, things cannot be said to be normal. In Chief S. O. Agbareh & Anon vs. Dr. Anthony Mimra & 2 Ors. (2008) 1 SCNJ 409, Ogbuagu, JSC held at page 425-426 thus:
”Finally, an Appellate Court can prefer an issue or issues formulated by any of the parties and can itself and on its own, formulate an issue or issues which in its considered view is/are germane to and is or are pertinent in the determination of the matter in controversy. See the cases of Musa Sha (Jnr.) & Anor. vs. Da Rap. Kwan & 4 Ors (2000) 5 SCNJ 101; Lebile vs. The Registered Trustees of Cherubim & Seraphim Church of Zion of Nigeria: Ugbebla & 3 Ors. (2003) 1 SCNJ 463 at 479 and Emeka Nwana vs. Federal Capital Development Authority & 5 Ors.(2004) 13 NWLR (Pt.889) 128 at 142 – 143; (2004) 7 SCNJ 90 at 99, citing several other cases therein. In my respectful view therefore, the excerpt reproduced under this Ground Two, amounts to no more, than the learned justice, stating that he preferred the issues formulated by the said Appellants. His Lordship, was entitled to do so provided that those issues so formulated, clearly took care of the main controversy between the parties.”

Since the issues are prolix and do overlap, I shall merge them for purposes of convenience. See Anie vs. Uzorka (1993) 8 NWLR (Pt.309) 1 at 16 paragraph “G” and page 17 paragraph “G” and Attorney-General of the Federation & 2 Ors. vs. Alhaji Atiku Abubakar & Ors. (2007) FWLR (Pt.375) 405, at 454. For the above reasons, I shall confine myself to the grounds of appeal and the issues formulated by the appellants’ learned counsel for determination. But I shall recap the pleaded facts to show precisely what the parties were disputing in the Court below and in this Court.
FACTS:
The pleaded facts are that late Anthony Nwosu was the Managing Director of Ambassador Hotel, Jos, Plateau State and of the 1st appellant. After the Nigerian Civil War the deceased approached the management of the respondent and made an offer to sell three of his properties namely, No.22, 24 Nnamdi Azikiwe Street, and No.24 Tafawa Balewa Street, all situate in Jos, Plateau State. The deceased explained that he had lost everything during the civil war hence he needed to sell the three properties to start life. At the time of the offer Mrs. Christiana Adunai Din (PW3) was Managing Director of the respondent. Her maiden name was C. A. Jebak. She eventually got married to Captain Joseph Mangut Din (PW5). PW5 testified in the Lower Court on 17th November, 2008 that when late Mr. Anthony Nwosu offered to sell the three properties, the negotiation took over a month before the agreement was signed by his wife on 21st November, 1970. Pw3 admitted signing the agreement dated 21st November, 1970. This was marked Exhibit “2”. Pw3 further testified that at the time of executing Exhibit “2” late Anthony Nwosu intimated her that he could not find the Certificates of Occupancy to the properties because he had lost them during the civil war but promised to get them for the respondent company. PW3 gave evidence as follows:
“He sold it at the cost of ?28,000 then we pay by cash and goods. It was agreed that at the signing of the agreement he will get ?10,000.00. It was broken into 3 parts for payment. The said part we sent in some property a Mercedes Benz and a bus with about ?13,000.00. The final one was through sending him 366 cartons of hot drinks whisky. The whisky is for payment. It was even over payment. The balance after Mercedes and bus was ?9,000.00.” See Pw3 further testified as follows: “The properties were used as hotel called Ambassador Hotel with 2 annexes. We agreed on ?28,000 (pounds). I paid the amount. The payment was made in 3 instalments. The first was cash ?10,000.00 (pounds) cash. The second was paid through 2 vehicles Mercedes Benz and Volkswagen all valued at ?10,000.00 (pounds). ?100 pounds was for the running of the hotel, so the vehicles were at ?6,000.00 for Benz and the Volkswagen was for ?4,000.00 making ?10,000.00.”

The evidence is that after the transaction Late Mr. Anthony Nwosu was employed by the respondent to continue running the hotel bearing the same name. The letter of employment dated 21st November, 1970 was admitted in evidence and marked Exhibit “3”. That is to say, Exhibits “2” and “3” were all executed by the parties on 21st November, 1970 with the deceased becoming an employee and the respondent the employer so that the deceased will continue running Ambassador Hotel and her two annexes. At the time Exhibits “2′ and “3” came into existence on 21st November, 1970, Chukwuemeka Nwosu (DW1) son of late Anthony Nwosu was just 10 years old.

Oye Aoye testified as Pw2. He had been driving Pw5 for the past thirty five years as at 2nd March, 2005 when he testified in the Court below. The witness gave unchallenged evidence that he was the one that delivered the Mercedes Benz and the Volkswagen delivery Van and 366 cartons of whisky to late Anthony Nwosu between November and December, in 1970 in Jos. The witness denied that the 366 cartons of whisky were rejected and he had to return them to PW3 or PW5.

Controversy, arose because Pw3 and Pw5 alleged that late Anthony Nwosu never rendered an account from 21st November, 1970 till date, nor would he surrender the title deeds to the respondent. Exhibit “4” of 5th March, 1974 is one of such demand letters for account. Pw5 later discovered in 1975 when he sought to mortgage Ambassador Hotel with African Continental Bank in Lagos to raise a loan that late Anthony Nwosu had mortgaged the three properties to that bank since 1962-1963. Late Anthony Nwosu’s appointment was terminated in a letter dated 1st September, 1975 marked as Exhibit “7”. The letter of complaint to the police was marked Exhibit “8” . The letters from African Continental Bank informing the respondent of these facts were dated 18th June, 1973, 28th April, 1973 and 24th February, 1976. They were marked Exhibits 9(a)(b) and (c) respectively. Pw5 tendered a list dated 17th November, 1970 showing various items of furniture which the deceased has signed and collected from Pw5. The list was admitted and marked Exhibit “10”. The matter had been the subject of adjudication before the learned chief Judge of Plateau State before late Anthony Nwosu died. His testimony before trial Court was put in d marked Exhibit “11.”

Pw5 testified that Dw1 was the heir of the late Anthony Nwosu hence his joinder in this proceeding. The reply filed by late Anthony Nwosu dated 25th April, 1977 before the former Chief Judge of Plateau State was put in and marked Exhibit “12”. Gabriel Okunlola a Chartered Accountant from the accounting firm of Chikwendu & Co. testified as Pw4. The witness gave evidence that the respondent had engaged the services of the Accounting firm to investigate the three properties on 13th July, 1994. Pw4 participated in the investigation which was put in and marked Exhibit “6”. Exhibit “6” covered the period November, 1970 to December, 1994. The witness gave copious evidence how he arrived at the sums claimed. Pw5 then explained that it was late Mr. Anthony Nwosu that requested for the Mercedes benz, the Volkswagen delivery van and the whisky as the final instalmental payments for the properties sold to the respondent. These are the facts upon which the respondent founded her claim in the Lower Court.

The appellant’s case was put forward by Dw1 who admitted that his late father signed Exhibit “2” to sell the three properties in dispute. That Exhibit “2” spelt out the mode of payment by three instalments. At page 337 lines 14 to page 338 lines 1-24 and page 339 lines 1-6 of the printed record DW1 gave evidence as follows:
“Dw1: Christian affirms to speak the truth in English. My name is Chukwuemeka Nwosu. I live at 32 East Street, River Layout, Aba. I am a businessman. I know the counter claimant. I know Nwosu North and South International Ltd. My relationship with Nwosu North and South is that I am a director in the company.
On November, 1970 there was a business agreement between our company Nwosu North and South and the counter-claimant consequently upon which an agreement was drawn on the 21st November, 1970. The transaction for the sale of 3 properties, namely, 22 Nnamdi Azikiwe Avenue, Jos, 24 Azikiwe Avenue, Jos and 20 Tafawa Balewa Street, Jos, I can identify the agreement. (Shown Exhibit “2”) This is the agreement. Exhibit “2” detailed the payment to be in 3 installments, the first installmental was to be made by cash payment of ?10,000.00 the second instalmental was to be made by another cash payment of ?9,000.00 while the 3rd installmental was for ?9,000.00 pounds by cash or cheque.
The payments were not made as agreed. The first payment was made cash payment of ?5,000.00 not ?10,000.00. The Managing Director of our company A. N. Nwosu who represented the company in drafting the agreement was in Lagos in person and negotiated the agreement with the man who invited him by name Capt. Din.
A used Mercedes Benz car valued at ?3000 was given as part of the payment. Another Volkswagen bus new was given as part of the payment at the value of ?500.00. The remaining ?500 was used for insurance and change of ownership of the vehicles. These brought the payment to ?10,000. It was then agreed that the 1st instalmental was made, it was receipted for.
The vehicles were given payment to complete the payment of the second instalment. The payments were agreed on how to be paid. The proof that vehicles were part of 1st instalmental is by Exhibit “5” (Shown Exhibit “5”). This is the document that relates to the change of ownership given in respect of the 1st installmental. The document was made available before the legal agreement for the sale of the property. The change of ownership was effected before the agreement was drawn in November, 1970. The same applies to the issuance papers of the vehicles. I can identify the insurance papers by the name of the insurance company and date of insurance. The name is Lion of Africa Insurance Company Ltd. which had an office at Broad Street, Lagos.
The date is 18th November, 1970. (Shown a document) this is the insurance paper relating to the Mercedes Benz.”

The insurance papers of the Mercedes Benz were admitted in evidence and marked Exhibit “15”. DW1 however gave evidence at page 340 lines 1-11 of the records as follows:
“Dw1: The second instalment and 3rd instalmental dates were specified but since the payment of the 1st the 2nd and 3rd instalments were not paid.
When the payments were not made we alerted the other party (the counterclaimant) through its representatives Miss Jebak in a letter dated 11th October, 1971. Miss Jebak represented the counter-claimant. Miss Jebak transformed to Mrs. Din, they are one and the same person. I can identify the letter by my late managing director’s signature, the date and contents of the letter. The original copy of the letter and been sent to the counter-claimant through Miss Jebak at their office at 46 Adelabu Street, Lagos (shown a letter) this is the letter.”
This subsequent evidence contradicts Dw1’s evidence that the two cars completed payment of the 2nd installment.
Exhibit “15” is dated 11th October, 1971 purportedly alerting Pw5 that the 2nd and 3rd instalmental payments had not been paid by the respondent. A copy of that letter was put in and marked Exhibit “16”. That after Exhibit “16” of 11th October, 1971 no payments were forth coming from the respondent hence the appellants exercised the option in clause 5 of Exhibit “2” to determine the agreement.
From the eleven issues distilled by the appellant and the respondent’s ten issues formulated by the learned Counsel to the respondent the outstanding issue to be determined in the Lower Court and in this Court is whether the respondent paid the 3rd installment or not, and secondly, with what? In view of Dw1’s admission that the cars were for the payment of the 2nd installment the issues on appeal are as follows:
ISSUE ONE:
1. Whether the respondent completed paying the three instalment or not and with what?
This covers issues 1, 2, 3, 9, 10 couched from grounds 1, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 in the Notice and Grounds of Appeal.
ISSUE TWO
Issue two relates to the award of special or general damages coupled with the 10% interest? Did the respondent prove special and general damages and the 10% interest or not? This has arisen from issues 4, 5, 6, 7 and 8 covered by grounds 2, 21, 23, 24, 25, 27, and 28 in the Notice of Appeal.
ISSUE THREE
Issue three covers ground 29 in the Notice of Appeal, namely, whether the delivery of the judgment by the learned trial Judge outside the three months period stipulated in Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 per se is sufficient to nullify the decision of the Lower Court.
ISSUE ONE
The learned Counsel to the appellant has gone beyond issue one to argue in this Court that the oral evidence of Pw3 and Pw5 cannot be used to vary the terms of Exhibit “2” citing Olalenye vs. Afro Continental Nig. Ltd. (1996) 7 SCNJ 145 at 155; Babatunde vs. Bank of the North Ltd. (2011) 18 NWLR (Pt.1279) 738 at 761. However learned counsel is unmindful of the fact that ?10,000 was paid in respect of the first installment, while Dw1 admitted that the Mercedes Benz and the Volkswagen delivery van were paid for the second installment. What is in contention is the third installment. Learned Counsel did not also take into consideration the fact that these instalmental payments as the exhibits show, were made on 20th November, 1970 whereas Exhibit “2” and “3” came into effect on 21st November, 1970. Therefore any submission not in respect of the third installmental payment becomes a none-issue and is hereby discountenanced. The parties have all relied on Exhibit “2.” The dispute is not as to the terms of Exhibit “2”. At page 331 lines 16-17 of the printed record Pw5 testified as follows:
“I paid all the cost of the 3 properties. My Company wants the Court to grant my claim as per paragraph 35.
Okoro:- That is our case with this witness.”

Dw1’s defence at page 342 tines 1-9 of the record is as follows.
“Dw1: …On the claim our 3 properties had conditions which agreement was vitiated on their own action in defaulting in payment of 2nd and 3rd instalmental. The agreement also lapsed when the condition were not fulfilled. It is not right to demand that the title be passed over to them.”
Dw1 cannot testify that the 2nd instalment was paid for the Mercedes Benz and the Volkswagen delivery van and suddenly make a summersault to testify that the 2nd and 3rd instalments were yet to be paid. From the evidence of Pw3 and Pw5 coupled with the admission by Dw1, the only question is whether the 3rd instalment was paid with 366 cartons of whisky or not?.

It is not in dispute that as at 21st November, 1970 when the Late Anthony Nwosu and Pw3 appended their respective signatures on Exhibit “2” and “3” Dw1 was only 10 years old. Pw1 was not a party to the negotiation that led to the signing of Exhibit “2” and “3”. Dw1 was 48 years at the date of his testimony. Whatever evidence Dw1 gave concerning the negotiations that took place before his late father and Pw3 appended their signatures to Exhibit “2” and “3” may not be within his personal knowledge unless his late father told him. The late father is not alive to have testified before the learned trial judge to be subjected to cross-examination. Therefore what late Anthony Nwosu told Dw1 may or may not constitute hearsay. In Subramaniam vs Public Prosecutor (1956) 1 W.L.R. 965 at 969, the Privy Council held that:-
“Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence not the truth of the statement, but the fact that it was made”

However there is no challenge to the fact that by 25th February, 2001 When Dw1 testified, he was a Director of the 1st appellant. In Kate Enterprises Ltd. vs. Daewoo Nig. Ltd. (1985) 7 SC (Pt.1) 1 the Dw1 that testified on behalf of the appellant, a corporate entity, was one Tyan Ayodele Iyanda the Sales Purchasing Manager. coker J.S.C. who delivered the lead judgment in the Supreme Court held at page 49 that: “…The trial judge in effect considered the entire evidence given by this witness inadmissible and accordingly rejected it. He was clearly in error. His evidence is admissible but the question of its weight, is a different matter” Uwais J.S.C. held at page 22 of the judgment that. “The evidence of Pw1 on the existence of the Contract between the plaintiffs and the defendants was relevant and admissible as such. It was evidence based on the personal knowledge of the witness which he acquired in the course of his employment.”

The evidence of Pw2 Oye Aoye the driver of Pw5 that he was the one who delivered the Mercedes Benz, the Volkswagen delivery car and the 366 Cartons of Whisky to the late Anthony Nwosu between November/December 1970 in Jos was not discredited under cross-examination. Pw2 denied that the late Anthony Nwosu rejected out rightly the 366 Cartons of whisky and he had to return them to Pw3 or Pw5. Exhibit “17” is the letter dated 28th April, 1971 (not 25th April, 1971) addressed to Miss Jebak (Pw3) intimating her of the rejection and return of the 366 cartons of whisky. But in the face of Pw2, Pw3 and Pw5’s denials the onus of showing that Pw3 or Pw5 received Exhibit “17” or the 366 cartons of whisky ought to have been discharged by the appellants which was not.

When Pw2, Pw3 and Pw5 denied in the witness box that the 366 cartons of whisky were rejected and returned, none of them were confronted with Exhibit “17” as they testified in the witness box if it was intended to impeach their credit.

It is improper for a party not to be cross-examined or confronted with evidence, be it oral or documentary, only to wait to adduce evidence at the defence stage. See Agbonifo vs. Aiwereoba (1988) 2 SCNJ 146; Babalola vs. The State (1989) 7 SCNJ 127 at 139; Nkwa vs. C.O.P. (1977) N.N.L.R 98 at 103 and Okosi vs. The State (1989) 2 SCNJ 183.

As the state of the evidence stood, the presumption is that there was in the Court below only one version of the evidence that 366 Cartons of whisky were delivered by Pw2 to late Anthony Nwosu without evidence of their rejection and return through Pw5’s driver by name Mr. Boye. Pw2 is Oye Aoye and not Mr. Boye. Dw1 named Mr. Boye as Pw5’s driver through whom the 366 Cartons of whisky were returned without calling him to testify. Belief or disbelief is immaterial when there is only one version of evidence relating to a material issue in controversy. See Modupe vs. The State (1988) 9 SCNJ 1; Oguma Associates Co. Ltd. vs. IBWA Ltd. (1988) 3 SCNJ 13; Olujinle vs. Adeagbo (1988) 4 SCNJ 1; Obanor vs. Obanor (1976) 2 SC1 at 4-6 and Omeregbe vs. Lawani (1980) 3-4 S.C 108 at 117.
Pw3’s evidence is that: “The final one (namely 3rd instalment,) was through sending him (late Anthony Nwosu) 366 Cartons of hot drinks. The whisky is for payment. It was even over payment…” (page 300 lines 16-8 of the printed record). The evidence remained unchallenged. This corroborates the evidence of Pw5 at page 326 lines 10-8 of the printed record that it was Mr Anthony Nwosu who requested for the vehicles and the cars were sent to him between November and December 1970 and that for the 3rd instalment, he requested for whisky to sell at his Ambassador Hotel at Aba. That the 366 Cartons of whisky valued at ?13,000.00. ?9,000.00 was for the running of the Hotel.

Faced with these oral and documentary exhibits the duty of the learned trial Judge was made simple, namely whom to believe – Pw2, Pw3, Pw5 or Dw1? The issue of credibility coupled with the weight to be attached to the conflicting evidence came into play. It was for the learned trial judge to determine whose evidence to believe or reject.

The result of the authorities is simply this, that where the facts found by the Court of trial are wrongly applied to the circumstances of the case or where the inferences drawn from those facts are erroneous or indeed where the findings of fact are not reasonably justified, or supported by the credible evidence given in the case, a Court of Appeal, is in as much a good position to deal with he facts and findings as the Court of trial.”(These words do not appear in the report of the case at (1967) 1 All N.L.R. 241.)
It only remains for me to add that, having regard to my own observation on the evidence made earlier, none of the reasons which could justify reevaluation the evidence by an appeal court are present in the case in hand.
In 1974, this court again considered the limitations placed on a court of appeal in reevaluation evidence accepted by a trial court in Balogun vs Agboola (6) We observed in our judgment in that case as follows (1974) 1 All N.L.R at 73; (1974) 10 S.C. at 118-119:
“The ascription of probative values to evidence is a matter primarily for the court of trial and it is not the business of a court of appeal to substitute its own views of undisputed facts for the views of the trial court. Interference by a court of appeal with respect to issues of fact is by law confined within very narrow and limited dimensions and we are clearly of the view in this vase that the Western State Court of Appeal took a mistaken view of the law when it embarked, as it did, on a fresh appraisal of the evidence of witnesses to whom the learned trial judge had himself listened and whom he had s.een face to face when they (the court of appeal) were dealing only with the cold sullen print of the records before them.”
That, if I may say so, is precisely what has happened in the present case. The learned Chief Judge who saw and heard the respondent, watched his demeanour in the witness-box, assessed the honesty or otherwise of his “performance” on the day he brought the carpets into the country, and made certain findings of fact having regard to all these circumstances. The Justices of the Federal Court of Appeal, without the benefit of this trial atmosphere, when “dealing only with the cold sullen print of the records before them” decided to set aside the Chief Judge’s findings of fact. Like the court in Balogun vs Agboola (ibid.), I – “….have no hesitation in restoring the findings of fact of the learned trial judge.”
Having thus restored the findings of the learned Chief Judge, it follows that the question of assessing the evidence adduced by the respondent on a balance of probabilities would not, and did not, arise. This is because there would be nothing to balance against the evidence adduced by the prosecution, which the Chief Judge accepted. It must be remembered that the defence of the respondent was, for good and sufficient reasons, if I may say so, totally rejected by the learned Chief Judge.”

In my humble view late Anthony Nwosu was a dubious or fraudulent character. The fact that the three properties covered by Exhibit “2” had been mortgaged by him to the African continental Bank since 1962-1963 without disclosing to Pw3 or Pw5 is a betrayal of the notion that something must be done bona fide or in good faith in business relations. It’s converse is that something must not be done mala fide or in bad faith. See Halsbury’s Laws of England 4th edition, Reissue, page 612 paragraphs 612-614.

In Exhibit 9B of 22/4/1975 ACB Ltd wrote late Mr. A. O. Nwosu describing his action of selling the properties in Jos when he was a debtor to the bank as “criminal conversion and obtaining credit fraudulently as you have no legal right to deal with the mortgaged property…” In Exhibit “9c”of 24/2/1976 the Bank notified Pw5 of her interest in Ambassador Hotel Jos and that whenever the bank intends to sell the property, Pw5 would be notified to exercise his option of bidding in the open market. The evidence which the learned trial Judge accepted is that the respondent completed paying the three instalments for the purchase of the three properties and is entitled to a decree of specific performance. In Beswick vs. Beswick (1967) 2 All E.R 1197, the English House of Lords held at page 1212 per Lord Pearce that the decree of specific performance is available when “damages for breach would be a less appropriate remedy”, or as Lord UpJohn held at page 1221 that the decree is available where damages will be “inadequate to meet the justice of the case”.

The circumstances of this case justified a decree of specific performance being granted by the Lower Court in favour of the respondent in respect of the three properties covered in Exhibit “2”. There is no substance in the argument by the learned counsel to the appellant, that there is no evidence that the 2nd and 3rd instalments were not paid by the respondents.

In my humble opinion, the parties varied the mode of payment of the 2nd and 3rd instatments by delivery and acceptance of the Mercedez Benz car, the Volkswagen delivery van on 20/11/1970, as well as the 366 cartons of whisky which late Anthony O. Nwosu accepted but never returned to either Pw3 or Pw5 till his death.
What then is variation? In Wayne (W.A.) Limited vs Ekwunife (1989) 3 N.S.C.C 325 Nnaemeka Agu JSC held at page 335 lines 19 to page 336 lines 1-27 as follows:
“Now it has not been disputed that parties to a contract may effect a variation of the contract by modifying or altering its terms mutual agreement. if authorities are required for this, I may mention the cases of -Goss vs Nugent (1835) 5 B & Ad. 58. Dodd vs Churton (1897) 1 Q.B. 562. See also Chitty on Contracts (24th Edn.) paragraph 1377 and 1378.
The contention of the learned counsel for the respondent is however, that as the contract was one in writing, it could only be varied by writing. In my opinion this contention was valid at common law (see West vs Blakeway (1841) 2 Man. & G.729). But courts of equity took a contrary view and held that a contract in writing which by law is not of a class that must be evidenced in writing under the statute of Frauds could be varied or rescinded by mutual agreement, whether oral or written; see Nash vs Armstrong (1861) 10 C.B. (N.S.) 259. The only requirement was that there must be sufficient consideration to support the variation, since the merger of law and equity by section 25(ii) of the judicature Act, 1873. This position in equity has become the position at common law. See Steeds & Anor vs Steeds & Anor. (1889) 22 Q.B.D. 537 and many subsequent cases. I shall apply the principle in this case, subject to there being sufficient consideration (see Chitty on Contract (24th Edn.), General Part, para. 1378 at p.650). In such cases, mutual abandonment of the existing rights of the parties under the agreement as distinct from forbearance to suit, is sufficient consideration: See Re William Potter & Co. Ltd. (1937) 2 All E.R. 361. The uncontradicted and unchallenged evidence of PW1 and the signature on the bill, Exhs. “3” & “3A” after inspection and approval (on the evidence of P.w.1) are clear evidence that both parties agreed that the appellant need not electrify the pumps after laying the pipes. This is sufficient consideration. As explained by the Privy Council in Morris vs Baron & Company (1918) A.C.1, at p.31, what is involved in such cases is strictly not a variation but an agreed change in the mode and manner of performance. I must therefore reject the submission that as exhibits “1” and “1A”are in writing, it could not be contradicted, altered, added to or varied orally: that any variation thereto must also be in writing. Learned counsel probably had an eye on the provisions of section 131 of the Evidence Act. It is useful to note that there is an analogous rule under the common law. But it has been recognised that the rule has been whittled down by a number of exceptions. See Walker Property Investment (Brighton) Ltd vs. Walker (1947) L.T. 204; Coachman vs Hill (1947) 1 ALL E. R. 103, Hence in SS. Ardennes (Cargo Owners) vs Ardennes (Owners) (1951) 1 K.B. 55, it was held that evidence of an oral representation by an agent of the ship owner that the ship was to proceed direct to London was admissible to contradict the contents of the bill of lading which stated that the ship could proceed “by any route and whether directly or indirectly” to London.
In our own law, section 131 itself provides to seven classes of exceptions, of which sub-section (1) (d) of that section is relevant. That paragraph of the proviso specifically provides as follows:
“Provided that any of the following matters may be proved:
xxxx x xxx x xxxx xxx xxxx x xx xxxxxx xx xx xxx
(d) the existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property;”
This proviso clearly provides, inter alia, that evidence of a subsequent oral agreement between the parties to modify a contract is admissible. In other words, in the instant case, oral evidence of the appellant that as a result of the non-availability of electricity at the locations of all the pumps, he and the representative of the respondent agreed that he should only lay the pipes, and that the respondents would connect electricity afterwards, was rightly admitted, See also Gillespie Brothers vs Cheney Eggar & Co. (1896) 2 Q.B. 59, 62. From this state of the law and on the above facts, including the conduct of the respondent in signing the appellant’s bills (Exhs. “3” and “3A” after inspection of the works and approving them, which act is clearly inconsistent with the suggestion that it was intended that the appellants should electrify the pumps, I cannot but come to the conclusion that it was not intended that Exhs “1” and “1A” should continue in full force to the effect that if the appellant did not electrify the pumps he should be held not to have fulfilled his own side of the bargain. I therefore agree with the learned trial Judge, though for slightly different reasons, that the appellant proved that he substantially performed his own part of the contract, and so was entitled to payment.”

Therefore, even if Exhibit “2” governed the transaction between the late Anthony O. Nwosu and the respondent, the terms of payment of the three instalments were varied before 21/11/1970 when Pw3 and late Anthony Nwosu appended their respective signatures to Exhibit “2” and “3”and I so hold. I resolve this issue against the appellants.
ISSUE TWO:
Issues two I have formulated is a complaint about the special and general damages awarded the Counter-claimant coupled with the order to render account and the 10% percent interest payment. Learned counsel’s submission is that the learned trial Judge erred to have awarded the respondent N34,832,106.07 as the total net income, drawing this Court’s attention to the evidence of PW4 where he admitted under cross-examination that, “…I accepted that No.20 Tafawa Balewa was never a hotel” See page 319 lines 16 of the printed record. Counsel submitted that in view of Pw4’s evidence No.20 Tafawa Bafewa Street, Jos did not have 31 rooms and there was no basis upon which to compute Exhibit “6”. Learned Counsel challenged the accuracy and credibility of Exhibit “6” in the manner interest was capitalized from 21st November, 1970 to 31st December, 1994 as there was no credible evidence to support the calculation and the award made in favour of the respondent. Pw3 and Pw5 did not give evidence to support the head of claim. The further argument is that the evidence of Pw4 and Exhibit “6” were based on mere speculation.
Learned counsel challenged the award of N3,248.87 per day from 1st January, 1995 till the date of judgment, and 10% interest thereon from the date of judgment till final liquidation.

The respondent’s counter-claim is in three main parts, namely, the main claim for specific performance under paragraph 35(1) (2) and (3) and the alternative claim under paragraph 35(3)(i)(ii) and 4(a)-(d) of the counter-claim. For the purposes of issue two I shall reproduce paragraph 35(1), (2) and (3) of the counter-claim at page 177-178 of the printed record as follows:
“35. WHEREOF the defendant/counter-claimant hereby counter-claims as follows :
Against Nwosu North and south International Limited:”
1. Specific performance of the agreement to sell to the defendant the plaintiff’s interests in the properties known as:
(a) No.24 Nnamdi Azikiwe Street, Jos covered by Certificate of Occupancy No.0648 issued by the Local Authority and dated 14th July, 1972.
(b) No.20 Tafawa Balewa Street, Jos covered by Certificate of Occupancy No.1120 dated 14th February, 1975 and issued by the Jos Local Authority.
(c) No.22 Nnamdi Azikiwe Avenue, Jos covered by Certificate of Occupancy No.12770 issued by the Commissioner or Minister for Land & Survey, Kaduna
for which the plaintiff had been fully paid twenty eight thousand pounds (?28,000) in cash and in kind and the original sale or agreement to sell was witness by written documents signed by the plaintiff or its agents or, alternatively, by part performance.
2. An order that the title documents of properties be handed over to the defendant/counter-claimant or its agents by the plaintiff or the African Continental Bank Ltd. or by both and the necessary instruments be executed vesting the properties in the defendant. The defendant is ready and witting to redeem the mortgage on the properties to the African Continental Bank Ltd. and made by the plaintiff or its agent with bank and fraudulently concealed from the defendant by the plaintiff at the time of the sale…”
Furthermore is that Alternatively or in addition to (1) and (2) above the defendant counter-claims against the plaintiff/defendant for:
i. Refund of twenty eight thousand pounds (?28,000) paid by the defendant/counterclaimant to the plaintiff/defendant for consideration that has totally failed.
ii. Special and exemplary damages in the sum of five hundred thousand Naira (N500,000.00) being value of properties in the hotels and for fraud which the plaintiff/defendant outrageous and flagrantly perpetrated on the defendant for the purpose of gains to itself and/or for it Director and Shareholders by agreeing to sell or selling in or about 1970 the properties known as:
(a) No.24 Nnamdi Azikiwe Street, Jos covered by Certificate of Occupancy No.0648 issued by the Jos Local Government Authority and dated 14th July, 1972;
(b) No.20 Tafawa Balewa Street, Jos covered by Certificate of Occupancy No.1120 dated 14th February, 1975 and issued by the Jos Local Authority; and
(c) No.22 Nnamdi Azikiwe Avenue, Jos covered by Certificate of Occupancy No.12770 issued by the Commissioner or Minister for Land & Survey, Kaduna to the defendant and receiving dishonestly money and/or other consideration thereof from the African Continental Bank Ltd. to secure a debt of about or over one hundred and forty thousand Naira (N140,000.00) which the plaintiff or Mr. A. O. Nwosu owed since about 1962. The plaintiff deliberately and fraudulently concealed from the defendant the encumbrances on the properties and also got himself appointed by the defendant as the Manager of the “Ambassador Hotel” run in one of the properties after dishonestly representing to the defendant that the said properties and the hotel were sold to the defendant free from all encumbrances and yet continued to appropriate the earning from the hotel to his own use. The matter was reported to the Police.”

At page 378 “lines 19 to page 379 lines 1-2 of the printed record the learned trial Judge held thus: “On the whole therefore this court finds the claim of the counter claimant at paragraph 35(1), (2) and (3) is hereby awarded to the counter-claimant. The case of the counter-claimant succeeds as above.”

In my judgment where the main or substantive claims succeeded in the Court below the respondent was not entitled to the alternative claims. In Williams Agidigbi vs. Danaha Agidigbi (1996) 6 NWLR (Pt.454) 300 Kutigi, JSC held at page 300 paragraphs “G”-“H” as follows:
“The short answer to the alternative relief of N900,000.00 claimed by the plaintiff against the 1st defendant for money had and received, is that that claim is clearly in the alternative to claim ‘4’ for an order for account. So that claim ‘4’ for an order of account having succeeded, there was no need for the learned trial Judge to have considered claim (5) for N900,000,00.”
Again in UBN Ltd. vs. Penny-Mart Ltd. (1992) 5 NWLR (Pt.239) 228 Adio, JCA held at 241 paragraphs “E”-“F” as follows:
“Another thing, which was an error of law, about the relief granted in item (5), of the reliefs granted in the judgment, is that it related to the alternative claim in the respondent’s amended writ of summons or amended statement of claim. Where an alternative claim is made in addition to a main claim, it is only where the main claim has not been granted that the consideration and the granting of the alternative claim can arise. Both the main claim and the alternative claim cannot at the same time be granted. See Nigerian supplies Manufacturing Co. Ltd. vs. Nigerian Broadcasting Corporation, (1967) 1 All NLR 35; and Mercantile Bank of Nigeria Ltd. vs. Adalma Tanker & Bunkering Services Ltd. (1990) 5 NWLR (pt.153) 747. It was, therefore, an error, in law, for the learned trial Judge to make the order in item (s) of the orders in his judgment in addition to the orders in items (1), (2), (3) and (4) of the said judgment.”

See also Nwangu vs. Ubani (1992) 10 NWLR (pt.526) 559 at 574-575.
All the monetary remedies couched as alternative claims are set aside and dismissed.
The third claims are set out in paragraph 35(a), (b) and (c) of the counter-claim against Chukwuemeka Nwosu substituted for Chief A. O. Nwosu (deceased) is as follows.
“(a) The sum of N34,832,106.07 being the total net income and interest capitatized thereto from 21st November, 1970 to 31st December, 1994 as particularized above.
(b) The sum of N3,248.87 every day from 1st January, 1995 until judgment and payment.
(c) Interest at the rate of 10% from judgment and payment.”
The appellants responded as follows:
“26. In specific answer to paragraphs 30 and 35(3) of the Counter-Claim, the Defendants state that the counter-claimant is not entitled to any account or any proceeds from the “Ambassador Hotel” business in that:
(a) The second agreement equally made on 21st November, 1970 between the Counter-Claimant and late Anthony O. Nwosu was predicated on the Counter-claimant effectively and effectually purchasing the properties wherein the Hotel business was situate, in terms of the agreement of sale also made on that 21st November, 1970.
(b) The Counter-Claimant not having paid the 2nd and 3rd instalments for the purchase of the properties (including No.22, Nnamdi Azikiwe Avenue, Jos) as provided for in the sale agreement of 21st November, 1970, the said agreement lapsed and became void and the Counter-Claimant acquired no interest in the properties or Ambassador Hotel for that matter.
(c) The Counter-Claimant having failed to pay for the properties as agreed cannot be allowed in law and equity to make profit from the business of Ambassador Hotel that does not belong to it.”

Paragraph 35(3) (a) and (b) of the Amended Statement of Offence and Counter-Claim sounds in special damages which must be pleaded with particulars. See Somner vs. FHA (1992) 1 SCNJ 73 at 82. How the special damages were calculated has to be proved at the trial. See Imana vs. Robinson (1979) 3-4 SC 1 at 23.

Pw2 testified that it was at Ambassador Hotel Jos that he delivered the Mercedes 250, the Volkswagen delivery van and the 366 cartons of whisky to late Anthony Nwosu in November/December, 1970. Pw3 testified that, “…The houses were run as a hotel. It was called Ambassador Hotel. After the transaction we decided to run the places as it is a hotel with the same name to be named by Mr. Anthony Nwosu. We appointed or we employed him by way of an agreement…” See page 300 lines 20 to page 301 lines 1-7 of the printed record. Pw3 further testified that, “The appointment of Nwosu was for the management of the Hotel for the company by Nwosu.” (See page 303 lines 1-2 of the printed record). Pw5 gave evidence that, “…Before the civil war I used to patronize Ambassador Hotel so I know that the properties belong to him. The properties were used as hotel called Ambassador Hotel with 2 annexes. We agreed on ?28,000 (pounds)…” See page 326 lines 1-4 of the printed record.

The evidence by Pw2 and Pw3 is that the ?28,000 was for the purchase of the three properties. Two of the properties were annexes to Ambassador Hotel. Their testimonies remained unchallenged or undisparaged by the Appellants Counsel through cross examination. Dw1 did not deny the fact that Exhibit “2” of 21st November, 1970 covered these three properties, namely, No.22 Nnamdi Azikiwe Avenue, Jos, No.24 Azikiwe Avenue, Jos and No.20 Tafawa Balewa Street, Jos. See page 337 lines 22 to page 338 lines 1-2 of the printed record.

Paragraph 5 of the Defendants’ Further Amended Joint Defence to Counter-Claim pleaded that “5. The management of the Ambassador Hotel, Jos and of the property in which it was situated was never put in the hands of Mr. Nwosu by the Counter-claimant or any other person acting on its behalf. The Defendants further averred in answer to paragraph 12 of the counter-claim that the goodwill and the business of AMBASSADOR HOTEL, Jos were never the subject-matter of any sale transaction between the plaintiff and the defendants,” But this contradicts Exhibits “3”, “4”, “5”, “7”,”8″ “9” and “13” tendered in the Court below all making references to “Ambassador Hotel” as situate at No. 22 Nnamdi Azikiwe Street, Jos. The respondent’s case also is that at the time of purchase of the three properties “Ambassador Hotel” was situate at No.22 Nnamdi Azikiwe Street, Jos. This was never discredited nor disparaged in cross-examination by the appellant’s learned Counsel. Both parties freely referred to “Ambassador Hotel” in their pleading, oral and documentary evidence. The identity and location of the two annexes and Ambassador Hotel as at 21st November, 1970 becomes a non-issue in this appeal. See Fatuade vs. Onwoamanam. (1990) 3 SCNJ 200 at 203; Ezeudu vs. Obiagwu (1986) 2 NWLR (Pt.21) 208; Atolagbe vs. Shorun (1985) 4 SC 250 at 257-258.

It should be remembered that late Anthony Nwosu continued in possession of the three properties from 20th November, 1970 till date. The appellants are yet to give up possession to the respondent. Pw4 visited the three properties and testified at page 315 lines 19 to22 as follows:
“Pw6 (4): Reminded that he is still on Oath (shown Exhibit “6”). The properties are Nos.22 and 24 Zik Avenue, 24 Zik Avenue and 24 Tafawa Balewa Street. They are located at Jos. The properties consist of 31 rooms and 6 others. The properties were for lodging, restaurant shop. It covered 1970-1977. I now say 1970-1994…”

If at the time Pw4 carried out his investigation the name “Ambassador Hotel” was no longer seen on any of the three properties, that does not detract from the fact that by 21st November, 1970, Ambassador Hotel was situate at No.22 Nnamdi Azikiwe Street, Jos, Plateau State. Being in continuous possession of the Ambassador Hotel and the two annexes since 20th November, 1970, I am of the humble opinion that the learned trial Judge was right to have ordered that the 2nd appellant should render account of his late father’s stewardship. What the respondent pleaded at the trial was in the form of anticipated profits from 21st November, 1970 to 1994. Anticipated profits are usually pleaded in form of special damages. See Odumosu vs. ACB (1976) 11 SC 55; Uwa vs. ITC (1988) 12 SC (Pt.2) 102 at 122-123; Attorney-General of Oyo State vs. Fairlakes Hotels (1989) 12 SCNJ 1 at 22.

In Grant vs. Gould (1775-1802) All E.R. Rep. 182, Lord Loughborough, C.J. held at page 187 thus:
“That all common law Courts ought to proceed on the general rule, namely, the best evidence that the nature of the case will admit, I perfectly agree.”

See also Boshali vs. Allied Commercial Exporters Ltd. (1961) 1 All NLR 917 and Owosho vs. Dada (1984) 7 SC.149, per Aniagolu, JSC at page 167.
Dw1 testified on 25th February, 2009 but no attempt was made to adduce counter-balancing evidence to discredit the evidence of Pw4. The oral and documentary evidence of Pw4 remained unchallenged. See Iroegbu vs. Fulfanti Boniger & Co. (1965) E.N.L.R. 144 and Opembe vs. Wemabod Estate Ltd. (1977) 5 SC.115 at 139. Where there is unchallenged evidence the Court of Appeal is in the same position as the Court of trial to evaluate and make use of the evidence to find in favour of a party. See Okafor vs. Idigo (1984); Odubeko vs. Fowler (1993) 1 SCNJ (Pt.2) 185 at 198 and Okpiri vs. Jonah (1961) 1 All NLR (Pt.1) 107. I shall however refer to the reasoning of the learned trial Judge at page 374 lines 7 to 377 lines 1-3 of the printed record-
“Moving on to the second issue for determination which is whether the counterclaimant is entitled to N34,832,106.07 being the .total net income and interest on the properties managed for the benefit of the claimant from 21/11/70 to 31/12/94 and daily loss of use to the tune of N3,248.87 from 1/1/95 until judgment and final payment.
The claimant by its pleadings of paragraph 25 averred a detailed account of the fraudulent gains of the 2nd defendant to counterclaim. This continued in paragraph 26 and 27. The defendants to counter claim denied and averred that No.22 Azikwe Street is a residence and not a hotel, the figures in paragraph 26 – 17 are speculative, that the claimant is not entitled to such sum having failed to pay the purchase price. In proof the claimant called PW4 who tendered exhibit 6. Proof in civil cases is on preponderance of evidence and not proof beyond reasonable doubt. To claim social (sic) damages a party is require (sic) to strictly plead and support it by evidence. The claimant duly pleaded. The next issue is the evidence in support. Upon the evidence of PW3, PW4 and PW5 and Exhibit 6, the burden shifted to the 2nd defendant. All counsel did not to cross examine PW4. The areas of contradiction alleged arose from conjectures and hypothetical questions not question based on the obvious facts of the case. There was no shred of evidence to contradict the evidence of the claimant. It is also settled that address of counsel cannot take the place of evidence no matter how elegant and persuasive it is, it must be founded on evidence. The 2nd defendant did not present any evidence in support of its pleadings denying the claim with regards to issue 2 against the defendants. Indeed, from beginning to the end of the transaction the 2nd defendant behaved fraudulently and cannot now want to escape liability. If the facts or figures in exhibit 6 are not correct what are the correct figures? It could be argued that the rates have since gave (sic) up due to inflation and economic situation in the country. The rates claimed per day is for (sic) less than the reality of today. The number of rooms and room mates were justified by PW4 who told the court they booked in to the hotel and bought food. Without anything to the contrary this court believes PW4 and exhibit 6 which has not been impeached by any evidence to the contrary.
On the need to render account, the 2nd defendant as employee is bound to give account of his tenure as manager. There was a demand on him which he failed to comply, see Exhibit 4. I agree with counsel to the defendants that upon the death of the 2nd defendant, the contract of employment ceased but since the claimant was not allowed to take possession not (sic) receive any benefit his successor in title is bound to render account because the hotel business is a going concern. There is no evidence that the business stopped running upon such death. To contend that the business was not sold cannot hold water, the 2nd defendant having collected items and goods for running the hotel business and having accepted employment as the General Manager of the Hotel. I find the claim proved. This court hereby awards the sum of N34,832,106.07 being a net income and interest from 21/11/70 – 31/12/94. Also awarded is the sum of N3,248.87 every day from 1/1/95 and until today, the date of this Judgment and 10% interest from today until the total Judgment sum is liquidated.”

Are the above findings supported by credible evidence on record? I do not think so as I shall now show.
USE OF EXHIBIT ”10”
Exhibit “10” of 17th November, 1970 was tendered by Pw5 without objection, and contains items Pw5 allegedly supplied to late Anthony Nwosu for running Ambassador Hotel. Learned Counsel to the appellant stated when Exhibit “10” was sought to be tendered by learned Counsel to the respondent in the court below that, “…I do not object for now but reserve my right to address on it, to same (sic) time.” See page 329 lines 18-23 of the printed record. When Pw5 was cross-examined he answered as follows: “…(Shown Exhibit “10”) reads paragraph 6. N10,000 is less than ?10,000.00 by half. The transaction was in pounds. Exhibit “10” reflects Naira. ?10,000.00 is not the same as N10,000.00 (Shown Exhibit “10” it is not addressed to anybody. It has no heading. It does not contain the name of my company. It does not bear the name Nwosu North and South. My name is not on it nor my wife’91s name. It does not show it was a receipt from a particular person.” Exhibit “10” is a useless unsigned document. See Omega Bank Nig. Plc vs. O.B.C. Ltd. (2005) All FWLR (Pt.249) 1964; Ojo vs. Adejobi (1978) 16 NSCC 165.

In Aiki vs. Idowu (2006) 9 NWLR (Pt.984) 47 Alagoa, JCA (as he then was) held at page 65 paragraphs “G-A” that:
”Where a document which ought to be signed is not, authenticity is in doubt; pleadings fall into this category of documents. What for example, would be the effect of attempting to tender a letter of employment which is unsigned. It would certainly not go in as an exhibit…”
Ambiguity in a document will be construed against the maker. See Alhaji Jibbo Adamu vs. Alhaji Sambo Bauchi (1977) NNLR 131 at 132. Exhibit “10” has a dubious origin. Its origin has not been satisfactorily explained. See Garuba vs. Kwara Investment Co. Ltd. (2005) (Pt.252) 469 at 478-479; Zemi vs. Geidam (2004) All FWLR (Pt.237) 457 at 482; Etiko vs. Aroyewun (1959) 4 FSC 129 and Bamire vs. Balogun (1986) 4 NWLR (Pt.38) 746.

Nothing credible can be foisted on Exhibit “10”. However, the learned trial Judge held at page 377 lines 4 to page 378 lines 1-9 of the printed record as follows:
“There is also the claim of N62,591.00 being the value of items received by the 2nd defendant to counter claim in respect of the business of the hotel the 2nd defendant was employed as manager. Exhibit “10” is the list of the items, their values and specific items duly pleaded. Evidence of Pw3 is not contradicted on this point. I find the claimed items with their values are also proved. Exhibit “10” puts the value of the items as:
1. 5 coolers at 150 each ’97                       ?750.00
2. 200 iron chairs                                   ?570.00
3. 28 Tables                                          ?168.00
4. 1 Record Changer                               ?30.00
5. 2 loud speakers                                  ?22.00
6. 1 amplifier                                         ?40.00
7. 1 big standing fan                              ?45.00
8. 3 Dining tables                                  ?45.00
9. 1 Electronic coffee & tea table         ?125.00
10. 1 Electric Roaster                           ?30.00
11. 1 Office table                                 ?20.00
Total :                       ?1845.10
Outsider Exhibit “10”, is there any evidence in support of the other items. Pw3 told the court that furnishings too were supplied. The exact list and values were not presented to the court. In the absence of such evidence it means that aspect of the claim is not proved. It is an aspect of special damages as it cannot be covered under general damages. This court awards the sum of ?1845.10 to the Counter Claimants.”

There is no credible evidence to support this award of ?1845.10 or the sum of N62,591.00 once based on Exhibit “10”. These awards founded on Exhibit “10”. are set aside and dismissed.
N34,832.106.07 kobo CALCULATED AT THE RATE OF FROM 21/11/70 to 31/12/94.
When Pw4 sought to give evidence as to what was the daily rate per room in the hotel, learned Counsel to the appellant took objection on the grounds that, “There is no pleading on the daily rate per room in a hotel. The pleadings should be strictly followed.” Okoro, Esq. of Counsel for the respondent saw reason and applied for an adjournment to put his house in order. See page 314 lines 1- 8 of the printed record. Adjournment was granted. The pleadings were amended. The amended pleading stated the amount but not the rates per day. At the resumed sitting on 21/6/2006 when learned counsel to the respondent sought to lead Pw4 on the issue of daily rate. Objection was again taken by Ugwuala, Esq. of Counsel to the appellants and upheld by the learned trial Judge: “Court: Counsel to limit his witness to the pleadings. The issue of rate was not pleaded. It is struck out.” see page 316 lines 6-13 of the records. The issue of the sum of N3,248.87 kobo rating per day never cropped up again till judgment. There is no credible evidence upon which the learned trial Judge could have used N3,248.87 kobo per day to calculate the net income from 21/11/1970 to 31/12/94 to arrive at N34,832,201.07 kobo as net income from 21/11/1970 to 31/12/94, awarded in favour of the respondent. Accordingly, the learned trial Judge erred by holding at page 376 lines 20 to page 377 lines 1-3 of the printed record as follows:
“I find the claim proved. This Court hereby awards the sum of N34,832,106.07 being a net income and interest from 21st November, 1970 to 31st December, 1994. Also awarded is the sum of N3,248.87 every day from 1st January, 1995 and until today, the date of this judgment and 10% interest from today until total judgment sum is liquidated.”

There is no credible oral or documentary evidence to support the above folding. Therefore, though the appellants were bound to render an account from the running of Ambassador Hotel, Jos from 21/11/1970 to 31/12/1994 the yardstick for calculating the sums of money accruing to the respondent having not been proved, I hold that the claim has not been established. They are set aside and stands dismissed.
N350,000.00 GENERAL DAMAGES:
The learned trial Judge in awarding the above sums to the respondent asked the following questions at page 378 lines 10-15 of the printed record:
“Damages is measure of the injury suffered that the Court awards a sum of money in compensation. Was there an injury to the claimant as a result of the actions of the defendants to counter-claimant? The obvious answer is yes. Is the claimant entitled to compensation, the answer is yes. This Court hereby awards the sum of N350,000.00 as damages.”

In E. K. Odutaja vs. A.F. Haddad (1973) 11 SC 357, Irikefe, JSC (as he then was) held at page 361 lines 11 to page 362 lines 1-20 as follows:
“We are in no doubt that the distinction between proof of general damage as opposed to special damage is a matter of law. This distinction is manifest from the following two English decisions:-
(a) STROMS BRUKS AKTIE BOLAG vs HUTCHISON – (1905) A.C. p. 515 and (b) BRITISH TRANSPORT COMMISSION vs GOURLEY – (1956) A.C. p.185.
In STROMS BRUKS AKTIE BOLAG vs HUTCHISON, Lord MACNAGHTEN, at pages 525-526, after stating that he thought the division into general and special damages was more appropriate to tort than to contract, said:
“General damages…are such as the law will presume to be the direct natural or probable consequence of the act complained of. Special damages on the other hand, are nature of the act. They are exceptional in their character and, therefore, they must be claimed specially and proved strictly.”
Also in Alraine (Nig.) Ltd. vs M. A Eshiett (1977) 1 S.C. 89 at 96 the Supreme Court held that:
“The award of N1,196 as general damages was attacked in the third ground of appeal. The learned judge was in error to have made an award of general damages as in cases of breach of contract, the plaintiff is only entitled to damages naturally resulting from the breach – which in this case was fully covered by items 1 and 2 of the claim. (See Swiss-Nigerian Wood Industries Ltd. Vs Bogo (SC.14/70 dated 3/7/70; P. Z. & Co. Ltd. Vs Ogedengbe (1972) 1 All N.L.R. (Part 1) 202; and Nigerian Produce Marketing Board vs A. O. Adewunmi (1972) 1 All N.L.R. (Part 2) 433). In our view, the award of N1,196 as general damages cannot stand.
See also Okongwu vs. NNPC (1989) 7 SCNJ 100.

General damages are not awarded in breaches of contract, but in tort. The N350,000.00 general damages awarded the respondent is set aside.
10% INTEREST
Courts usually order monetary judgments to accumulate legal interest until paid. Pre-judgment interest, or statutorily prescribed interest accrues either from the date of the loss or from the date when the complaint was filed up to the date the final judgment is entered. Pre-judgment interest is usually calculated only for liquidated sums. Depending on the statute, it may or may not be an element of damages. There is post – judgment interest under Order 40 rule 7 of the High Court (Civil Procedure) Rules 1987 of Plateau State of Nigeria which as follows:-
“The Court at the time of making any judgment or order, or at any time afterwards, may direct the time within which the payment or other act is to be made or done, reckoned from the date of the judgment or order, or from some other point of time, as the Court thinks fit, and may order interest at a rate not exceeding ten naira per centum per annum to be paid upon any judgment, commencing from the date thereof or afterwards, as the case may be.”

In Amos Bez Idakula (deceased) etc vs. Dorcas Richards & Anor (2000) FWLR (Pt.14) 2439 Akpabio JCA, held at page 2450 par. “B” to page 2451 par. “A” – D reads as follows:
“In the recent unreported case of Alhaji Ibrahim Umaru Wuro Hausa vs First Bank of Nigeria Plc decided by this Court in Appeal No.CA/J/295/98 on 12th April, 2000, coram Akpabio, Chukwuma-Eneh and Mangaji, JJ.C.A.) in which the facts were similar, I had the following to say in the lead judgment:-
“I have carefully considered all the arguments canvassed above by learned counsel on both sides and must agree with learned counsel for Respondent that there are two types of interests charges usually awarded by the courts in this country, namely (a) Pre-judgment interest and (b) Post-Judgment interest. As submitted by the learned Counsel for the Respondent. Prejudgment interest must be claimed by the Plaintiff in his Writ of Summons, and evidence subsequently adduced in proof of it, failing which the court will not award it. I should also mention the fact the at the award of pre-judgment interest is usually dependent on the agreement of the parties and the custom of the trade concerned.
The court will readily award a prejudgment interest where the Plaintiff is a Commercial Bank, and the rate of interest fixed at the inception of the loan or overdraft transaction; whereas if the plaintiff was a private person, or the loan stated to be a “friendly loan” and nothing said about interest charges at the time of entering into the loan agreement, the court will not award interest in such circumstances. (See the cases of U.B.N vs Sax (Nig.) Ltd (1994) 8 NWLR (Pt.361) 150; U.B.N. Ltd vs Ozigi (1994) 8 NWLR (pt.361)150; U.B.N. Ltd vs. Ozigi (1994) 3 NWLR (pt.333) 385. See also the recent case of U.B.N. Ltd vs. Salami (1998) 3 NWLR (pt.538).”

From the foregoing, I have no difficulty in holding that the learned trial Judge was in error in awarding 15% pre-judgment interest on the admitted sum of N30,000.00 “effective from July, 1987 till amount is fully paid up.”
Although this item of claim appeared on both the Writ of Summons and the Amended Statement of Claim, there was no evidence whatsoever to show whether payment of interests was agreed upon by the parties, and if so at what rate. Also none of the parties was a licensed Commercial Bank so as to make any trade custom applicable. The award of interest charges must, therefore, be disallowed and set aside as was done by the Supreme Court in the case of Himma’s Merchants Ltd vs Aliyu (1994) 5 NWLR (Pt.347) 667.
Furthermore, as pointed out by the learned counsel for the Appellant, the trial court had a discretion under Order 40 rule 7 of the High Court (Civil Procedure) Rules, 1987, of Plateau State to award a post-judgment interest at the rate of not more that 10% per annum from the date of judgment till final liquidation. This is a discretion given by the Rules to the learned trial Judge, to be exercised on the date of delivering judgment. She did not do so or did so wrongly. Can this court now do so?
The answer in my respectful view is in the affirmative, because under Section 16 of the Court of Appeal Act, 1976, the Court of Appeal is given wide powers to do anything which the court below could have done. In other words, we have “full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance.”
Pursuant to Section 16 of out Court of Appeal Act, therefore, while the award of prejudgment interest at 15% from July, 1987 to date of Judgment is hereby set aside, post-judgment interest at the rate of 10% per annum is hereby granted to the Respondent on the admitted sum of N30,000.00 from 22/4/91, being the date of Judgment, till the amount is fully paid up.
In effect therefore, the appeal No.CA/J/104/96 succeeds partially and is hereby allowed as such.
For avoidance of doubt, the pre-judgment interest of 15% per annum awarded from July, 1987 to date of judgment on the admitted sum of N30,000.00 is hereby set aside, as there was no evidence to support it. However, the post judgment interest, which is discretionary, is hereby awarded to the Plaintiff/Respondent at the rate of 10% per annum on the same amount from date of judgment (22/4/91) till final liquidation, instead of at the rate of 15% per annum earlier awarded by the learned trial judge.”

There is no. indication whatsoever that the 10% interest awarded the respondent is under Order 40 rule 7 of the High Court (Civil Procedure) Rules of Plateau State supra. Neither can the 10% interest be said to have arisen as a result of a prior agreement between the appellant and the respondent. There is nothing on which the 10% interest rate can be foisted unto unlike the case of Idakula vs Richards supra where the 10% per annum was foisted on the N30,000.00 admitted by the appellant.

Accordingly, the 10% per annum interest rate awarded the respondent is also set aside and is dismissed.
ISSUE THREE
The contention of the learned counsel to the appellant is that the hearing concluded on 25/2/2009. The learned counsel exchanged written addresses which they adopted on 19/3/2009. But the learned trial Judge delivered judgment on 28/10/2010 outside the time stipulated under section 294 (1) end (5) of the Constitution of the Federal Republic of Nigeria 1999 which reads as follows:
“294 -(1) Every court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause of matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.
X X X X
(5) The decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of this section unless the court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”

Learned counsel cited Walter vs Sky Nigeria Ltd (2001) 3 NWLR (Pt.701) 438 at 474 to 475 where it was held that the appellant had the onus of showing that the violation of the above Constitutional provisions led to a miscarriage of justice. Learned Counsel took the court through the records in order to point out areas the learned trial judge lost grip of the proceedings, citing International Bear and Beverages Industries Ltd vs Mutunci Company (Nig.) Ltd (2012) 6 NWLR (pt.1297) 487 at 518; Claleye vs Adejuino (2005) 10 NWLR (Pt.933) 429 at 460 to 461 paragraphs “C” to “D”; Dibiamaka & Ors vs Osakwe & Or (1989) 3 NWLR (pt.107) 10, at 114 to 115 per Oputa J.S.C., Emenimeya & ors vs Okorji a ors (1987) 3 NWLR (pt 59) 6 at 15 & 17 and First Bank of Nigeria Ltd vs Adepetu & Company Nig. Ltd (2009) 11 NWLR (pt 1151) 156 at 171 to 172 paragraphs “B” and “F” Learned Counsel urged this Court to allow the appeal.

The learned Counsel to the respondent argued that the suit did not enjoy speedy trial because of the learned trial judges’ participation in Local Government Election Appeals, the assignment which lasted for” over one and a half years. Learned Counsel cited Owoyemi vs Adekoya (2003) 18 NWLR (Pt.852) 302 at 340; Oto vs Adojo (2003) 7 NWLR (pt.820) 636 at 662 and S.P.D.C. Nig. Ltd vs Ekems (2009) 4 NWLR (Pt.1131) 229 at 253 to show that it is not enough for an aggrieved party to seek the intervention of the Court of Appeal on the grounds that the decision was delivered out of the ninety day period prescribed by Section 294(1) and (5) of the Constitution of the Federal Republic of Nigeria 1999. An aggrieved party must further show that on a consideration of all the grounds of appeal, the judgment ought not to be sustained. That the entire evidence has to be considered, including evaluation, to arrive at a decision whether there was indeed a miscarriage of justice. Learned Counsel urged this court to hold that in the absence of a miscarriage of justice, the appeal should be dismissed.

The mere fact that a decision was delivered after the ninety days period prescribed under section 294(1) of the constitution supra is not enough to declare the decision a nullity. The appellant has to satisfy the appellate court that he or she has suffered a miscarriage of justice by reason of the delivery of the judgment outside the 90 days’ period stipulated by section 294(1) and (5) of the constitution supra. The learned trial Judge commenced the judgment by explaining that, “This case had a chequered history in this jurisdiction. It passed through several judges before finally landing itself here. Even in this Court, the suit did not enjoy speedy trial because as soon as hearing was concluded, the court was assigned to handle Local Government Election Appeals, the assignment which lasted for over one and half years. This explains the delay in this judgment” see page 349 lines 17 to 23 of the printed record. The Learned Counsel to the appellant did not challenge nor disparage the above statement of the learned trial judge before this Court. An entry in the records of the appeal not disparaged or discredited is conclusive. See Atlas vs Rhodes (1961) All NLR (pt.2) 348. The Appeal Court is bound by the records. – See Julius Berger (Nig) Ltd vs Femi (1993) 5 NWLR (Pt.295) 612 at 619 – 620.

An “appeal” is any proceeding taken to rectify an erroneous decision of a court of tribunal by bringing the decision to the appellate court or tribunal for rectification. The right of appeal may be provided by a statute or the Constitution. An appellate Court, after hearing, may substitute its own decision against which the appeal was brought, vary or dismiss the appeal where the appellant is unable to sustain the complaint: Order 19 rule 11 (1) and (2) of the Court of Appeal Rules provides that.
“11(1) The court shall have power to give any judgment or make any order that ought to have been made, and to make such further order as the case may require including any order as to costs.
(2) The powers contained in sub-rule (1) of this Rule may be exercised by the Court, notwithstanding that the Appellant may have asked that part only of a decision may be reversed or varied, and may also be exercised in favour of all or any of the Respondents or parties, although such Respondents or parties may not have appealed from or complained of decision.”
Section 15 of the court of Appeal Act, 2004 empowers the court of Appeal to generally “…have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purposes of such re-hearing…” For the above reasons the judgment of a Court of Appeal becomes that of the court below. See Oyefeso vs Tola (1968) N.M.L.R. 317 and Chief Bola Ige vs Dr Victor Olunleye (1984) 1 SCNLR 158 at 178, where Aniagolu J.S.C held that:-
“I agree with the view expressed…..that the judgment of an Appeal Court, allowing an appeal, has the effect of substituting the Appeal Court judgement for the judgement of the court below set aside, making the decision appealed against disappear altogether.”

The learned counsel to the appellant drew this Court’s attention to some errors he thought the learned trial judge committed which if not rectified by this court would have led to a miscarriage of justice.

In Total (Nigeria) Limited & Anor vs Wilfred Nwako & Anor (1978) 5 S. C. 1 “Miscarriage of justice” was defined at page 14 as:
“….such a departure from the rules which permeate all judicial processes as to make what happened not in the proper sense of the word judicial procedure at all.” vide Devins Ray (1946) A.C. 508 at 521. See also Nnajiofor vs Ukonu (1986) 4 NWLR (part 36) 505 at pages 516-517 – where the above definition was approved.”
And in The State vs Ajie (2000) F.W.L.R (pt.16) 2831 Onu JSC held at page 2842 paragraphs “E” to “F” as follows.
“What will constitute a miscarriage of justice may vary; not only in relating to particular facts, but also with regard to the jurisdiction which has been invoked by the proceedings in question, and to reach the conclusion that a miscarriage of justice has taken place does not require a finding that a different result necessarily would have been reached in the proceedings said to be affected by the miscarriage. See Adigun vs Attorney-General of Oyo State (1988) 1 NWLR (pt.53) 628. It is enough if what is done is not justice according to law. See Okonkwo vs Udo (1977) 1 NWLR (Pt.519) 16 at page 20.

However, where a trial Court or the Court below fails to advert its mind and treat all issues in controversy fully and there is sufficient material before the Appellate Court for the resolution of the matter, an order of retrial will not be made. See Okeowo & Sons vs Migliore & Ors. (1979) ANLR 280, at page 381 and Awote vs. Owodunni (No.2) (1987) 2 NWLR (pt.57) 367 at 369 E-F. The Court itself will resolve the issue.”
In the State vs Ajie supra Onu JSC held at page 2841 parag. “F” – “H” to page 2842 par. “A”. as follows:
“The first rule may be stated as follows:-
“Where an Appellate Court is satisfied that the Court of Trial has been guilty of improper use of its powers in the performance of its adjudicative functions, it must go further and ask itself whether the error was such that it could be corrected from the evidence in cold print without injustice to either side. If it is, then the Appellate Court can correct the error, but if it is not, it must order a retrial.”
Per Nnaemeka-Agu, JSC in Sanusi vs. Ameyogun (1992) 4 NWLR (part 237) 527 at p.549 F-G.
The second rule defines the position in relation to substantive or procedural defects in the course of a trial. Karibi-whyte, JSC put it this way in Ejelikwu vs The State (1993) 7 NWLR (pt.307) 554 at p. 583 D.
“…I venture to suggest that for a “condition to nullify judicial proceeding, it must be a substantive provision which affects the jurisdiction or competence of the Court, or a procedural defect in the proceedings which would result in a miscarriage of justice…” See Onifade vs Olayiwola (supra) per Agbaje JSC. at p.168 D-E”

I have corrected the errors committed by the learned trial judge which if left unattended to could be said to have led to a miscarriage of justice. None of what counsel perceives as the remaining errors can be said to affect the jurisdiction or competency of the Lower Court in determining the matters in controversy. I am not convinced that the entire judgment should be declared a nullity having corrected all the errors pointed out by the learned counsel to the appellant. In the absence of the appellant establishing any miscarriage of justice, I resolve issue three against the appellants.

Accordingly, I make the following orders:
(1) The grant of specific performance of the agreement to sell the following properties namely (a) No. 22 and 24 Nnamdi Azikiwe Street and No. 20 Tafawa Balewa Street, Jos covered by Certificate of occupancies Nos.12770; 6643 and 1120 respectively issued by the Local Authority at diverse times and occasions to late Anthony O. Nwosu in favour of the respondent and that the title documents be handed over to the respondent or its agent forthwith is hereby upheld.
(2) The alternative claims/damages awarded the respondent under paragraph 35(2) (i) & (ii) of the Amended statement of Defence and Counter Claim dated 16/6/2006 to wit:
(a) ?28,000
b) N5,000,000 in general damage are hereby set aside and dismissed.
(3) The sums of.
(a) N34,832,106.07, namely, total income, etc,
(b) N3,248.87 calculated every day from 1/1/95 until judgment and payment; and
(c) Interest at the rate of 10% from judgment till payment.
(d) N62,591.00
(e) ?1845.10
(f) N350,000.00 general damage I find not proved. The awards are set aside and dismissed.

Thus the appeal fails on issue one and three but succeeds on issue two. Parties to bear their respective costs. That is the judgment of this Court.

TIJJANI ABDULLAHI, J.C.A.: I had a preview of the lead judgment of my learned brother, Tur, JCA, and I agree with his reasoning and conclusions that the appeal should be allowed in part.

His lordship has extensively and meticulously set out the facts of the case and admirably resolved the three issues he formulated the way he did. All the live issues that call for determination were carefully treated and I have nothing more useful to add. I too allow the appeal in part as set out in the lead judgment and endorse the order that parties shall bear the costs of prosecuting/defending the appeal contained therein.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege of reading in draft the lead judgment delivered by my learned brother, JOSEPH TINE TUR, JCA, and I entirely agree with his marshaling of the issues as well as his conclusion. I shall however add as follows:

General damages are those damages which the law presumes to flow from the act the claimant has complained of. If the issue of liability is established the Court is entitled to make its own assessment of quantum of such general damages. See the instructive case of INTERNATIONAL MESSENGERS NIG. LTD. V. ENGNR. DAVID NWACHUKWU 2004 6-7 SC. P.99. Per Musdapher JSC of the apex Court.
On the issue of special damages, it is trite and the law is that a party claiming special damages has an obligation to plead and particularize any item of damage not because the nature of the loss is necessarily unusual but because the party who has the advantage of being able to base his claim on a price calculation must give the defending party access to the facts which make such calculation possible. The foregoing is as stated by Lord Donovan in the case of
PERESTRELLO COMPANLIA LUMITADER V. UNITED PAINT COM. LTD 1969 1 WLR 570 AT 579 and cited with approval by the apex court in the case of NWANJI V. COASTAL SERVICES (NIG) LTD. 2004 6-7 SC PG.46.
Special damages therefore must be strictly proved. See the case of INDUSTRIES V. MADUAKOR 1975 12 SC 91 at 98.

In the instant judgment, my learned brother has thoroughly considered the value of the evidence in that regard and thereupon resolved issue No.2 in favour of the Appellant the conclusion which I abide by.

For these reasons and other reasons as fully stated in the lead judgment of my learned brother, I also allow the appeal in part and abide by the orders made therein.

Appearances

H. N. Ugwuala – (with S. I. Bukar and S. L. Albaraka)For Appellant

AND

E. O. Okoro; J. E. Esanubi; Miss V. M. GonungFor Respondent