ROBA INVESTMENT LTD V. AREWA METAL CONTAINERS LTD
(2010)LCN/3661(CA)
In The Court of Appeal of Nigeria
On Thursday, the 25th day of March, 2010
CA/K/299/06
RATIO
APPEAL: WHEN IS AN ISSUE SAID TO BE NEW OR FRESH
An issue is said to be new or fresh if it was not canvassed or ventilated at the trial court and decided upon by the said court before it is being raised in the court of Appeal. Where such new or fresh issue is to be raised, leave of the court must be first sought and obtained. Where this is not done, such fresh point or issue ought to be discountenanced and struck out. See Peter V. Okoye (supra). PER JOHN INYANG OKORO, J.C.A
WORDS AND PHRASES: MEANING OF WAIVER
Waiver is defined as the intentional and voluntary surrender, relinquishment or abandonment of a known privilege or right by a party entitled to the same which at his option he could have insisted upon.See Fasade v. Babalola (supra), African Petroleum Ltd V. Owodunni (supra), Bakare v. Lagos State Civil Service Commission (1992) 8 NWLR (pt 262) 641 at 704 paras F – G. Where a person has any right accruable to him and for his benefit and he, showing by words or conduct not to insist on the said right, he is in law, said to have abandoned or waived the right. See Halburys Laws of England (3rd Edition Vol. 37 p 152. PER JOHN INYANG OKORO, J.C.A
ACTION: CONDITIONS FOR THE PRINCIPLE OF WAIVER TO APPLY
In order for the principle of waiver to apply the Apex Court in Fasade v. Babalola (supra) at 47 paras F – G had set out five conditions as follows.
“But ordinarily, when a defendant intends to establish waiver in a civil case, it goes without saying that he must, first, plead the facts relied on for that defence. See Caribean Trading & Fidelity Corp. V. NNPC (1992) 7 NWLR (pt 252) 161. Second, the party against whom the doctrine is raised must not be under a legal disability that contradicts voluntary abandonment of a right or privilege in question. Third, the said party must have knowledge or be aware of the act or omission which constitutes the waiver. Fourth, he must have done some unequivocal act to adopt or recognise the act or omission. Fifth, the waiver must be in respect of a private right for the benefit of a particular person or party in contradistinction to a public right intended for the public good or affairs. See A-G Bendel State v. A-G Federation (1981) 10 SC 1 at 54…..”
See also Ariori v. Elemo (1983) 1 SCN LR 1.
One very important thing that must be present before this doctrine can be successfully raised is that it must be pleaded by a party wishing to rely on same This was the decision of the Supreme Court in Okonkwo V. CCB Nig. PLC (2003) 8 NWLR (pt 822) 347 at 407 – 408 wherein it is stated:-
“Waiver as an equitable defence must be specifically pleaded by the defendant. This is a corollary of the principle that parties are bound by their pleadings and facts not pleaded go to no issue. In other words, evidence on facts not pleaded will not avail the party relying on the evidence. In the instant case, since waiver was not pleaded it was not available to the court of Appeal to raise it suo motu and resolve it”. PER JOHN INYANG OKORO, J.C.A
DAMAGES: MEASURE OF DAMAGES TO BE AWARDED IN A BREACH OF CONTRACT
In considering the measure of damages to be awarded where there is a breach of contract, it should be borne in mind that the object of awarding damages is to put the injured party, so far as money can do it, in the same position as if the contract had been performed See Okeke V. Oche (supra). Also, the damages to be awarded must be such as naturally arises from the breach or such as may reasonably be supposed to have been in contemplation of the parties See Maiden Electronics V. A-G Federation (1974) 1 SC. 53, Shell BP V. Jammal Eng. Ltd (1974) 4 SC 33. PER JOHN INYANG OKORO, J.C.A
Justice
MOHAMMED L. GARBA Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
THERESA N. ORJI-ABADUA Justice of The Court of Appeal of Nigeria
Between
ROBA INVESTMENT LTDAppellant(s)
AND
AREWA METAL CONTAINERS LTDRespondent(s)
JOHN INYANG OKORO, J.C.A(Delivering the Leading Judgment): By a proforma Invoice dated 7th January, 2004 (Exhibit A) the Appellant entered into a contract with the Respondent wherein the Respondent was to supply to it 20 Nos, 36,000 litre capacity Semi-Trailer Fuel Tankers including Prime Movers. Under this agreement, the Respondent was to supply the tankers within 8 working weeks from the date of payment of 80% of the total purchase price of the tankers and the balance of 20% to be paid upon delivery.
The transaction was financed by an Equipment lease facility from Habib Nigeria Bank Ltd (as evidenced by Exhibit B) under the terms of which legal ownership of the tankers will reside with the Bank throughout the lease period and the Appellant will pay monthly rentals to the Bank for the use of the tankers. By the said Exhibit B, there was a moratorium period of 3 months from the date of payment granted to the Appellants before the commencement of the payments of rentals. The 3 months moratorium period took into account the 8 weeks delivery period under Exhibit A plus an additional one month within which the tankers would have been put to use to realize income.
By the 6th of February, 2004, the advance payment of 80% of the purchase price was paid to the Respondent as required under Exhibit A. However, the Respondents failed to deliver the said tankers within the contractual period of 8 weeks. The Respondents were however able to so supply 18 out of the 20 tankers ordered by September, 2004, 7 months after payment was made. The Appellant, alleging he has suffered serious damage from the failure of the Respondent to supply the tankers within the time specified and in protest instructed the Bank not to make further payments to the Respondents in respect of the remaining two tankers. The Appellant then filed this suit at the lower court claiming damages from the Respondent for breach of contract.
The Appellant which was plaintiff at the lower court commenced this action by writ of summons and statement of claim both dated 9th November, 2004 claiming inter alia the sum of N70,660,000 being extra bank charges, insurance payments and loss of income suffered by the Appellant, N4,664,915.66 being further loses incurred from September 28, 2004 till date on the two tankers yet to be supplied by the defendant.
The Respondent filed its defence and counter-claim, counter-claiming the sum of N8,355,384.00 being the cost of extra two tankers the Appellant took delivery without paying for same. At the end of trial, the learned trial judge dismissed the claim of the Appellant and granted the counter claim of the Respondent.
Aggrieved by the said judgment, the Appellant filed Notice of Appeal on 8/8/06 containing two grounds of appeal. The said notice of appeal was subsequently amended via a motion on notice filed on 21/2/08.
From the two grounds of Appeal, the Appellant has distilled two issues for determination as follows:-
(1) Whether the determination of the trial court that the Appellant waived its rights to claim damages by taking delivery of the tankers from the Respondent though supplied late in breach of the contract ought to be set aside, as the defence of waiver was neither pleaded by the Respondent (Defendant) in their pleadings nor established by the facts and the evidence led during trial.
(2) Whether the Appellant did not prove its claim for damages.
The learned counsel for the Respondent also formulated two issues to wit –
(1) Whether the issue of waiver was not pleaded and proved by the Respondent.
(2) Whether from the totality of the evidence, the Appellant proved its case and afortiori the damage it claimed.
The two issues submitted by each party in this appeal are identical and I shall determine this appeal based on these two issues.
On the first issue, the learned counsel for the Appellant submitted that having not pleaded waiver as a defence to the claim of the Appellant at the lower court, the learned trial judge was wrong to have raised the issue suo motu and rely on it to dismiss the appellant’s claim. He submits further that a defendant who intends to rely on the defence of waiver in a civil case must specifically plead it in his pleadings. He relies on the cases of Okonkwo v. C.C.B Nig. PLC (2003) 8 NWLR (pt 822) 347, Fasade v. Babalola (2003) 11 NWLR (pt 830) 26 at 47, Carribean Trading and Fidelity Corp v. NNPC (1992) 7 NWLR (pt 252) 161, Omega Bank Nig. PLC Vs OBC Ltd (2002) 16 NWLR (pt 794) 483.
Learned Counsel further contends and relies on the Supreme Court case of SPASCO vehicle & Plant Hire Company v. Alraine Nig. Ltd (1995) 8 NWLR (pt 416) that the judgment of the court must be confined to the issues raised by the parties in their pleadings. He opined further that the decision of the trial court that the Appellant’s action in taking delivery of the tankers though delivered late in breach of the contract amounted to a waiver is incompetent being a determination on an issue not arising from the pleadings and therefore ought to be set aside as the Appellant was denied fair hearing in the process.
Finally, learned counsel submitted that the evidence adduced at the trial does not support the decision that the Appellant had waived its right. He gave the following as examples.
a. The testimony of Pw1, the Managing Director of the Appellant under cross-examination that he received the tankers “complaining”.
b The testimony by all witnesses that the Appellant directed the Bank not to pay the balance of 20% on the contract.
c. Appellant’s refusal to take delivery of the remaining 2 tankers not covered by the initial 80% payment.
d. The contents of Exhibit B
With the above state of the evidence, the learned counsel submits that these do not reflect the conduct of a person who condoned or accepted the breach by the Respondent. Also, that the fact that the Appellant was aware that two other companies had paid before it is irrelevant to the contract between the Appellant and the Respondent. Again, with respect to Exhibit B, he opined that the Appellant was clearly no longer in a position to refuse to receive the tankers because the Bank having released the money to the Respondent had acquired a proprietary interest in the tankers which automatically precluded the appellant from acting with them as it pleases for that will then jeopardize the interest of the Bank which relied on the tankers to recover its money. Finally, he submitted that there is no evidence to show that the Appellant knew before entering the contract that the Respondent would not be able to deliver the tankers on time He urged this court to resolve this issue in favour of the Appellant.
Contrary to the position of the Appellant, the learned counsel for the Respondent submitted that the issue of waiver was pleaded and proved by the Respondent. That the Respondent pleaded waiver in paragraphs 16, 19, 20, 29, and 30 of its statement of Defence. That the sum total of the facts in the above paragraphs of statement of Defence is “WAIVER”. That the Appellant knew of all these difficulties before hand and when in fact the problems came which caused the delay in the deliveries of the tankers to it, the Appellant understood and co-operated with the Respondent and eventually took the tankers delivered to it That the Appellant by taking delivery of the 18 tankers long after delivery period of 8 weeks, had clearly waived its right. On the meaning of waiver, learned counsel referred to The English Law Dictionary by P.H. Collin at P. 291 and the cases of African Petroleum Ltd v. Owodumi (1991) 8 NWLR (pt 210) 391 at 416 para E and Bakare v. Lagos State Civil Service Commission (1992) 8 NWLR (pt 262) p. 641 at 704 paras F – G.
Finally, learned Counsel submitted that the issue of whether Waiver was pleaded or not was not raised at the lower court to give the trial court the opportunity to pronounce on same. That it is being raised here for the first time and that since the leave of this court was not sought and obtained, it should be discountenanced He relies on the cases of Peter v. Okoye (2002) FWLR (pt 110) p. 1864 and Udemba v. Morecab Finance Nig. Ltd (2002) FWLR (pt 85) 317. He urged the court to resolve this issue in favour of the Respondent.
Let me start from the last point made by the learned counsel by the Respondent to wit, that issue of waiver is new in this appeal. An issue is said to be new or fresh if it was not canvassed or ventilated at the trial court and decided upon by the said court before it is being raised in the court of Appeal. Where such new or fresh issue is to be raised, leave of the court must be first sought and obtained.Where this is not done, such fresh point or issue ought to be discountenanced and struck out.
See Peter V. Okoye (supra). Now, can it be said that issue of waiver is a fresh issue before this court? I do not think so. The issue had been addressed by both counsel in the court below and decided upon by the learned trial judge. If it was not raised at the court below, where did the learned trial judge anchor his decision when he said on page 64 of the record that-
“Having waived his right, he cannot be seen to make a U turn around now to try to enforce such waived and abandoned right”.
Quite apart from this, the Respondents counsel submitted in paragraph 5 02 of his brief of argument that” The Respondent pleaded waiver in paragraphs 16, 19, 20,29 and 30 of its statement of Defence”. I am at a loss and unable to appreciate the argument of counsel that issue of waiver is being raised for the first time in this court. For me, this is a non issue and I so hold.
There is no doubt that the court below held that the Appellant had waived his right to sue for breach of contract. I take this to mean that the right allegedly waived by the Appellant had in the first place inured to him. I shall presently consider what amounts to waiver and also whether or not the Appellant had waived its right under the contract. Also, whether the issue of waiver was properly made before the court below.
Waiver is defined as the intentional and voluntary surrender, relinquishment or abandonment of a known privilege or right by a party entitled to the same which at his option he could have insisted upon.See Fasade v. Babalola (supra), African Petroleum Ltd V. Owodunni (supra), Bakare v. Lagos State Civil Service Commission (1992) 8 NWLR (pt 262) 641 at 704 paras F – G. Where a person has any right accruable to him and for his benefit and he, showing by words or conduct not to insist on the said right, he is in law, said to have abandoned or waived the right. See Halburys Laws of England (3rd Edition Vol. 37 p 152.
In order for the principle of waiver to apply the Apex Court in Fasade v. Babalola (supra) at 47 paras F – G had set out five conditions as follows.
“But ordinarily, when a defendant intends to establish waiver in a civil case, it goes without saying that he must, first, plead the facts relied on for that defence. See Caribean Trading & Fidelity Corp. V. NNPC (1992) 7 NWLR (pt 252) 161. Second, the party against whom the doctrine is raised must not be under a legal disability that contradicts voluntary abandonment of a right or privilege in question. Third, the said party must have knowledge or be aware of the act or omission which constitutes the waiver. Fourth, he must have done some unequivocal act to adopt or recognise the act or omission. Fifth, the waiver must be in respect of a private right for the benefit of a particular person or party in contradistinction to a public right intended for the public good or affairs. See A-G Bendel State v. A-G Federation (1981) 10 SC 1 at 54…..”
See also Ariori v. Elemo (1983) 1 SCN LR 1.
One very important thing that must be present before this doctrine can be successfully raised is that it must be pleaded by a party wishing to rely on same This was the decision of the Supreme Court in Okonkwo V. CCB Nig. PLC (2003) 8 NWLR (pt 822) 347 at 407 – 408 wherein it is stated:-
“Waiver as an equitable defence must be specifically pleaded by the defendant. This is a corollary of the principle that parties are bound by their pleadings and facts not pleaded go to no issue. In other words, evidence on facts not pleaded will not avail the party relying on the evidence. In the instant case, since waiver was not pleaded it was not available to the court of Appeal to raise it suo motu and resolve it”.
The learned counsel for the Appellant had submitted that the Respondent did not raise waiver in its pleadings and that it was wrong to raise it at the address stage and resolved by the court below. Counsel for the Respondent however stated that waiver was pleaded and referred to the paragraphs of the statement of defence where waiver was pleaded. These are paragraphs 16, 19, 20, 29 and 30 I shall reproduce these paragraphs for ease of reference.
“STATEMENT OF DEFENCE
16. The Managing Director of the Plaintiff was always in Kaduna to see the progress of the work on the tankers and he was aware of the difficulties the Defendant was going through. He suggested that the Defendant write the letters dated 3th March and 4th May 2004 to highlight the difficulties it was going through and that it was to assist his company to get the bank to reschedule the moratorium period for the repayment of the loan his company took from the bank.
19. That it was the plaintiff who took the Chairman and Managing Director of the Defendant to see the Managing Director of the Bank in Lagos to see about the release of the shipping documents and though they were unable to see the Managing Director of the Bank, they saw and discussed with one Mr. Ademoyewa, who happened to be in charge of leasing Operation of the bank who promised to assist the release of the shipping documents.
20. The Plaintiff was aware of all these problems and was the entire time offering advise on how to move forward.
29. That if there was any delay, it was as a result of events that were beyond the power of the Defendant and which the Plaintiff is well aware.
30. The Defendant avers that the Plaintiff was not the only Company that knew of the problems it was going through and co operated with it”
The above are the paragraphs the Respondent says amounts to waiver. Taking paragraph 16 first, can it be said that the mere fact that the Managing Director of the Appellant used to travel to Kaduna to see the progress of work done on the tankers amount to a waiver or the fact that the Appellant went to the Bank to plead for time regarding interest on the loan also amount to waiver as the Respondent would want this court to believe? Further still, can the fact of the Appellant offering advise to the Respondent amount to waiver of its right over the contract which was clearly breached. Again, does the fact of receiving the 18 tankers from the Respondent amount to a waiver?. For me, I do not think so. The reason is that the Appellant took delivery of the tankers “complaining” and asked the bank not to pay the balance of 20% and also refused to take delivery of the remaining two tankers to be delivered under the contract not covered by the initial 80% payment. These acts or conducts of the Appellant clearly show that he knew his right and that it had been breached. As was rightly submitted by the learned counsel for the Appellant, the Appellant had no choice on whether to take delivery of the tankers or not. The reason being that the bank had already paid for the tankers and the bank had since started pilling up interest against the Appellant. In other words the Appellant was under a legal disability and as such he could not refuse to collect the tankers. Thus, even if it appears he co-operated with the Respondent, he did not voluntarily abandon his right as was held by the learned trial judge See Fasade V. Babalola (supra).
I hold the view that those paragraphs in the statement of defence do not suggest at all that the Appellant had waived or abandoned his right. Rather, his conduct of having to assist the Respondent was like that of a drowning man and was an attempt to mitigate the loss he was already suffering. To hold that by these conducts, he had abandoned his right is absurd. The truth is that after eight working weeks from the date 80% of the purchase price of the tankers was paid to the Respondent, and the Respondent failed to deliver the tankers, the Appellant’s right to damages had accrued. The fact that the appellant refused to collect the remaining two tankers which money was not released to the Respondent and the fact that he took delivery of the tankers “complaining”, and the fact that he was under a legal disability since the bank had already released the money to the Respondent and was charging interest on it against the appellant, I hold that he never waived his right to complain against the Respondents.
The learned counsel for the Respondent had argued that the Appellant knew before entering into the contract that the Respondent would not be able to deliver the tankers on time. That argument, to say the least is not based on any scintilla of evidence before the court. It is quite clear from the pleadings and evidence before the lower court by both parties that the terms of Exhibit B which is the agreement for financing between the Appellant and the financing bank was based on Exhibit A- the contract between the Appellant and the Respondent. The repayment terms in Exhibit B i.e time when payment of rentals will commence, were determined by the time of delivery of the tankers to the Appellant by the Respondent. As was asked by the learned counsel for the Appellant, is it plausible that the Appellant would have had prior knowledge that the tankers will not be ready in 8 weeks as agreed and still agree to bind himself to the bank to begin repayment at an earlier date particularly when the payments to the bank was to be from income from using the tankers’? The money to be released by the bank was never to be paid to the Appellant but directly to the Respondent I think it is an untenable argument to say that the Appellant knew that the tankers would not be delivered within 8 weeks before entering into the contract.
Be that as it may, it is trite law that no oral evidence is admissible to add to or vary or contradict or even to state the contents of a written document. See Nnubia V. A-G Rivers State (1999)3 NWLR (pt 593) 82. The parties are bound by the wordings of the contract document and no oral evidence or argument of counsel shall be allowed to contradict same.
I have held that those paragraphs of the statement of defence did not amount to or even suggest waiver. I have also stated clearly that the conduct of the Appellant throughout the period of the contract did not amount to waiver. It is therefore my view that the court below had no basis whatsoever to hold that the Appellant had waived his right in this matter. Accordingly, I resolve the first issue in favour of the Appellant.
The second issue is whether the Appellant proved its claim for damages. Learned counsel for the Appellant as would be expected submitted that having regard to the evidence before the court, the Appellant proved its claim for damages arising from the breach of contract by the Respondent and that in cases of breach of contract, unlike in tort cases, damages are not classified into “special” and “general” damages referring to the cases of Okeke v. Oche (1994) 2 NWLR (pt 329) 688, Steyer Nig. Ltd v. Gadzama (1995) 7 NWLR (pt 407) 305 and Shell BP V. Jamal Eng. Ltd (1974) 1 All NLR (pt 1) 489.
Learned counsel further contends that contrary to the holding of the lower court, the Pw1 gave unchallenged and uncontroverted evidence with respect to the losses of income it suffered as claimed in paragraphs 10(iii), 11(ii) and 18(i) of the statement of claim. That the Pw1 testified specifically that it stood to earn N163,000 per tanker per trip on the Lagos – Suleja route and tendered Exhibit D which states what the Appellant will be paid by Oando PLC for haulage of Petroleum Products and thus provides the basis for the assessment of the income due to the Appellant from the Operation of the tankers.
Again, learned counsel submitted that the Appellant testified as to the losses it made arising from bank interest charges on the money released for the payment of the trucks and tendered Exhibit C, its statement of account showing the losses it suffered in default interest charges arising from failure to pay the monthly rentals on the tankers owing to non delivery by the Respondent. That these pieces of evidence were led in prove of the averments in paragraphs 10 and 11 of the statement of claim which were neither challenged nor controverted by the Respondent.
It was his further contention that the learned trial judge was in error when he held that the Appellant failed to lead any evidence in respect of Exhibit C whereas Exhibit C is a written document which speaks for itself. That no oral evidence is admissible to add to or vary or contradict or even to state the contents of a written document relying on the case of Nnubia v. A-G Rivers State (1999) 3 NWLR (pt 593) 82.
Finally, it was learned counsel’s further submission that from the evidence, the mode of financing the purchase of the tankers and the purpose for which they were to be used, were elements which informed the contract between the parties and as such the damage suffered by the Appellant and as claimed were within the direct contemplation of the parties and the direct and natural result of the breach. He urged the court to resolve this issue in favour of the Appellant.
On his part, the learned counsel for the Respondent submitted that from the evidence of PW1, Dw1 and Dw2, the Respondent did not breach the contract in Exhibit A. That the Appellant, after taking delivery of the tankers, came to court as an afterthought to evade the payment of the balance on the two extra tankers delivered to it when the Respondent wrote Exhibit J. Furthermore, that the court below had in its finding held that the Appellant having expressly waived its right by his action cannot now turn around to enforce the right it waived and abandoned stating further that the damages claimed by the Appellant were not proved After reviewing the evidence adduced by the Appellant, the learned counsel for the Respondent further submits that the Appellant’s claims are clearly in the nature of special damages and that by law they ought to be itemized, specially pleaded and strictly proved. He cites the following authorities.-
Order 24 Rule 5(1) of the Kaduna State High Court (are Procedure) Rules 1987, Comet Shipping Agencies Nig. Ltd V. Rabbit Nig. Ltd (2001) FWLR (pt 40) 1780 at 1792 paras G-H & p. 1797 paras A-D, Stirling Civil Eng. Nig. Ltd V. Yahaya (2005) All FWLR (pt 263) 628 at 646 paras C-E.
As regards Exhibit C, learned counsel submits that it is not enough to tender it, the Appellant must show specifically and prove the amounts claimed as damages for interest, insurance losses e.t.c. Again that Exhibit D from Oando to the Appellant did not say that the N163,000 was net profit due to the Appellant weekly.
Finally, he submitted that it was not the duty of the court to do the calculation for the Appellant but the Appellant himself ought to have done it relating to paragraphs 18(a)-(iv) of the statement of claim. He urged this court to hold that the Appellant failed to prove his claim before the court below and that this issue be resolved in favour of the Respondent.
In view of the fact that the main argument in this issue is that the Appellant failed to plead and prove the facts constituting the damages he is claiming, I intend to bring to the fore the facts pleaded and the evidence led in proof of same placing them side by side in order to see whether the court below reached a fair and just conclusion. Paragraphs 9, 10, 11 and 18 of the statement of claim are instructive here-
“9. The Plaintiff avers that as at the 20th of September, 2004 it had not received the remaining 16 tankers to be supplied by the Defendant, and the failure of the Defendant to supply the said tankers occasioned and continues to occasion grave losses to the plaintiff
10 The Plaintiff avers that the breach of contract by the Defendant has caused it losses which as at the 20th September, 2004 stood at about N70,660,000 (Seventy Million, Six hundred and Sixty thousand naira) particularized as follows:
(i) Extra bank interest on the lease financing – N13,500,00= (Thirteen million, five hundred thousand naira only).
(ii) Losses to insurance payments -N5,000,000 (Five million naira only)
(iii) Loss of income = N52,160,000 (assessed as: 16 tankers, each scheduled to make 4 trips in a month, and therefore each tanker to make a profit of N163,000 per trip for a period of 5 months i.e April to September each trip being from Lagos to Suleja).
11 The Plaintiff further avers that to date it has only received eighteen (18) out of the twenty (20) trucks to be supplied by the Defendant and the Defendant has failed, neglected or refused to deliver to the Plaintiff the other two tankers further continuing and compounding the losses suffered by the Plaintiff. The Plaintiff avers that the non delivery till date of the two tankers has also caused further losses to it wit.
i. Extra bank interest on the lease financing =N3,034, 915.66 on the remaining two (2) tankers from September 2004 to the date of filing this statement of claim;
ii Loss of income= N 1,630,000 (assessed as 2 tankers each scheduled to make 4 trips in a month and therefore each tanker to make a profit of N163,000.00 per trip for a period of 5 weeks i.e September to date each trip being from Lagos to Suleja) Totaling =N4,664,915.66 (Four million, Six hundred and Sixty Four thousand Nine hundred and Fifteen Naira Sixty Six Kobo)”
In paragraph 18, the Appellant summarises his claims as contained in paragraphs 10 & 11 above stated. The Respondent had in its statement of defence denied those claims. As to whether evidence was led in prove of the claim, the court below states on page 64 of the record as follows.-
“Be that as it may, a cursory look at the itemized claim in paragraph 18 i-iv of the statement of claim vis-a-vis Exhibit ‘c’ and XD’ the claims therein are special damages. It is trite law that special damages must be itemized, specifically pleaded and strictly proved Aside the itemized claims in the statement of claim and on pleadings no succinct evidence was led on that”
Just before the learned trial judge made the above findings that the Appellant did not adduce succinct evidence to prove his claim, he had on pages 63-64 of the record acknowledged that the Appellant had in fact led evidence to prove his claim but that he could not enter judgment for him because he had waived his right. This is how the learned trial judge puts if –
“On the prove of damages as claimed, Exhibit ‘C’ the plaintiff’s statement of account was tendered in evidence and evidence was also led to the effect that the plaintiff is expected to make N163,000 00 per the four trips per month for the months from September to date. There is also the evidence on the Bank charges and interest that have accrued and are still accruing.
The Plaintiff having expressly waived his right by the actions and or acts and steps he did or took can he now be seen or heard to be claiming for damages. Having waived his right he cannot be seen to make a turn around now to try to enforce such waived and abandoned right”
What I understand the court below to be saying is that although the Appellant had given evidence in support of his “itemized claims in the statement of claim”, the court cannot help him because he had abandoned or waived his right I am however, not unmindful of the fact that the court below in one breadth said that the Appellant gave evidence in prove of his claim and in another breadth that he did not lead such evidence. Now be that as it may, the truth is that looking at the record, the Appellant led abundant, unchallenged and uncontroverted evidence in proof of his claim before the trial court. The issue whether or not the Appellant had waived his right has already been thoroughly dealt with in this judgment and I do not intend to repeat it here. Had the learned trial judge not gone into error of the perceived waived right, he would have considered the evidence of the Appellant in this matter.
It is trite that where the evidence of a plaintiff has not been challenged, contradicted, or shaken under cross-examination, and the evidence is in line with the facts pleaded, the evidence must be accepted as the correct version of what it says and the Plaintiff is entitled to judgment See American Cynamid Co. Ltd V. Vitality Pharmaceuticals Ltd (1991) 2 NWLR (pt 171) 15, Ijebu-Ode Local Government V. Balogun & Co Ltd (1991) 1 NWLR (pt 166) 136. Steyer Nig. Ltd V Gadzama (1995) 7 NWLR (pt 407) 305, Ifeanyi Chuckwu Osondu Co. Ltd V. Akligbe (1999) 11 NWLR (pt 625) I.
The court below has found as a fact that the Appellant had given evidence in respect of bank charges, interests and loss of income. These are, as rightly put by the learned trial judge, “itemized claim in paragraph 18(i)-(iv) of the statement of claim”. There is nowhere in the evidence of the Respondent where the Appellant’s evidence was challenged except that the Respondent said that the Appellant’s patience, tolerance and co-operation amounted to a waiver.
The Appellant, in my opinion gave unchallenged and uncontroverted evidence with respect to the losses of income it suffered as claimed in paragraphs 10, 11 & 18 of the statement of claim and stated specifically that it stood to earn N 163,000 per tanker per trip on the Lagos – Suleja route and tendered Exhibit D which states what the Appellant will be paid by Oando PLC for haulage of petroleum products and thus provided the basis for the assessment of the income due to the Appellant from the operation of the tankers. The Respondent was clearly notified of the Appellant’s case and he ought to have controverted same but he failed to do so. This failure is fatal to his defence.
Again, having tendered Exhibit C which is the statement of account of the Appellant, it was the duty of the trial judge to read and evaluate same to see whether it supports the facts stated by the Appellant in its pleadings. Exhibit C is a written document which speaks for itself It was tendered in evidence in support of facts pleaded by the appellant with respect to losses in bank interest charges. It is trite that no oral evidence is admissible to add to or vary or contradict or even to state the contents of a written document See Nnubia V. A.G. Rivers State (1999) 3 NWLR (pt 593) 82. It was therefore wrong for the learned trial judge to say that the Appellant did not lead evidence to prove Exhibit C. For me, Exhibit C is a piece of evidence and it is quite strange to say that evidence must be led to proved evidence. Then there will be no end as one evidence will be led to prove another ad mfinitum. It should be noted that the bank charges and interest made against the Appellant are on the 80% of the amount released directly to the Respondent. As per the agreement between the parties, the trucks were to be delivered within 8 weeks but were not delivered until about seven months. While the bank was charging interest on the loan against the Appellant, and the Appellant had nothing to earn income to assuage those charges and interest, at the same time the Respondent was busy making untenable excuses while at the same time keeping the released funds under its control and enjoyment. Who should then bear the losses so incurred.
Instead of addressing the complaint of the Appellant in this appeal, the Respondent was busy arguing that the claim of the Appellant are clearly special damages and by law should be itemized, specially pleaded and strictly proved. These are issues which were settled at the court below. Quite apart from the fact that I have reproduced those paragraphs, the court below had held that the claims are clearly itemized and pleaded. The only thing the court below did not see is that there was evidence in support of them. The Appellant had in para 10, 11 & 18 itemized therein as.-
1 Extra bank interest on the lease facility –
2. losses to insurance payments –
3 loss of income –
(These have been stated above in full).
What else did the Respondent expect the Appellant to do in the circumstance?
Was he to plead the evidence? It is trite law that evidence should not be pleaded. To do so would amount to cluttering up the pleadings with unnecessary details when alleging material facts, and that would be bad pleading See Okeke V. Oche (supra), Obimiami Brick & Stone Nig. Ltd V. ACB Ltd (1992) 3 NWLR (pt 229) 260, Ekretsu V Oyobebere (1992) 9 NWLR (pt 266) 438.
There is no doubt that the agreement or contract between them was executed more in the breach than in its strict performance. There is also no doubt that the Appellant had suffered extensive damage as a result of this breach I quite agree that a party claiming special damages must specifically plead such special damages and give sufficient particulars of it in his pleadings. I am satisfied that the Appellant has done this in paras 10 and 11 of his statement of claim. Thus, the Respondent’s argument on this issue is of no moment.
In considering the measure of damages to be awarded where there is a breach of contract, it should be borne in mind that the object of awarding damages is to put the injured party, so far as money can do it, in the same position as if the contract had been performed See Okeke V. Oche (supra). Also, the damages to be awarded must be such as naturally arises from the breach or such as may reasonably be supposed to have been in contemplation of the parties See Maiden Electronics V. A-G Federation (1974) 1 SC. 53, Shell BP V. Jammal Eng. Ltd (1974) 4 SC 33.
Since both parties were aware that the money paid by the bank to the Respondent is a loan and that interest shall be charged, and that the Appellant was to service the loan from income from the trucks to be supplied by the Respondent and that failure to supply the trucks within the time specified would lead to losses by the Appellant, it is my view that they both knew that damages in the circumstance would flow naturally from the said breach. Contrary to the view of the learned trial judge that the Appellant failed to lead evidence to prove that he is entitled to damages, I am of a well considered opinion that the Appellant proved his claim for damages as can be gleaned from the record I so hold.
Again, in deciding the measure of damages to be awarded, I am guided by the fact that the Appellant is entitled to only what he has actually suffered before the trucks were delivered to him and not thereafter. Again, the Appellant can only be entitled to damages on the 18 trucks already received and paid for (including the two in the counter-claim) and not the two yet to be delivered because there is evidence that the Appellant had instructed the Bank not to release money to the Respondent on those two trucks. I say so because the bank cannot charge interest on an amount not released to the Respondent So, I shall limit my award to only the claim on the 18 trucks paid for.
Accordingly, the Appeal succeeds and is hereby allowed. I set aside the judgment of the court below in respect of the Appellant’s claim and in its place, enter judgment for the Appellant as per paragraph 18(1)(a) of the statement of claim only as follows.
“The sum of N70,660,915 66 (Seventy Million, Six Hundred and Sixty Thousand, Nine Hundred and Fifteen Naira, Sixty Six Kobo) being extra bank charges, insurance payments and loss of income suffered by the Appellant by the breach of the contract by the Respondent with the plaintiff as at 20th September, 2004”.
I award costs of N30,000.00 in favour of the Appellant.
MOHAMMED LAWAL GARBA J.C.A: My learned brother OKORO, JCA, had vary thoroughly and admirably considered the two (2) issues submitted for determination in this appeal in the draft of the lead judgment written by him which I read before now.
As usual, the lead judgment is so comprehensive that it has fully dealt with all the points of law raised in the issues for determination such that nothing can usefully be added to it.
I find all the views on, reasons for and conclusions reached on the issues to be the same with mine and so agree completely therewith.
In the result, without the need to say more, I allow the appeal in all the terms of the lead judgment.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: Upon a more thorough and deeper consideration of the lead judgment, of my learned brother, J.I Okoro, JCA, vis-a-vis the statutory provisions of the Sale of Goods Act and the Evidence Act, which this Court is entitled to examine by virtue of section 74 of the Evidence Act, I hereby agree with the reasoning and conclusion reached therein with some reservations.
It is pertinent to note that parties are at liberty to stipulate in their contract that time is to be of the essence in relation to the seller’s obligation to deliver the goods within the agreed time. However, where the contract fixes a time for delivery, and the buyer continued to demand and accept deliveries long after the fixed date and then alleged that the contract had been broken by failure to deliver punctually, the law is that the buyer had, by his demands after, the fixed date, waived his right to insist that the period of delivery terminated on the date See Hartley vs. Hymans (1920) 3 K.B. 475. He is, also by his conduct estopped from alleging that the period of delivery terminated on the date originally fixed by the contract See Chitty on Contracts, the Common Law Library NO 2, 25th Edition paras 4248 and 4252 at pages 1090 and 1091.
In the instant appeal, even though there was delay in delivery of the tankers, the said tankers were ultimately accepted by the Appellant in September, 2004, several months after the date fixed for delivery of the same. It should be noted that in situations such as this, the buyer is, however, entitled in law to claim for normal measure of damages, consequential losses which include (a) loss of user profits, i.e expenses made necessary, (b) loss on a resale, (c) other losses, i.e, consequential losses not related to either use or resale of the goods sold, (d) expenses rendered futile by the breach, i e, the buyer’s expenses of hiring staff whose services were rendered useless by the delayed delivery of the goods.
It is worthy to note, that where there was a delayed delivery, and, a buyer has lawfully rejected the goods, the case becomes in effect, one of non-delivery, and, where the seller wrongfully refuses to take back the goods, the buyer may recover expenses incurred in keeping them either until the seller does receive them or until they can be resold on the market by the buyer. Therefore, for there to be a valid rejection, there must be a clear notice that the goods are not accepted and at the risk of the vendor. An unequivocal rejection prevents a subsequent acceptance of the goods (other than by the agreement of the seller), therefore, a buyer who rejects cannot thereafter insist on delivery.
By section 35 of the Sale of Goods Act, a buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them or when the goods have been delivered to him and he does any act in relation to them, which is inconsistent with the ownership of the seller, or when after the lapse of reasonable time, he retains the goods without intimating to the seller that he has rejected them. It follows that where a contract is severable, i.e, if it is divisible, each delivery is to be treated as a separate contract and each installment is to be separately paid for. However, where the contract is not severable and the buyer has accepted the goods in terms of the section, he cannot repudiate unless the contract otherwise provides. For instance, where a factory owner agrees with the other to purchase 20 tons of coals of specified quality If the contract is an indivisible one, i e, not severable, and the factory owner has accepted the delivery of any part of the coal, he loses the right to repudiate the contract and reject the remaining coal. If on the other hand, the contract is severable, he may treat each delivery as a separate contract and therefore reject any particular delivery or repudiate the contract.
It should be noted that whether there is an acceptance under section 35 to deprive the buyer of the right to repudiate is a question of fact.
In the instant appeal, there seemed to be no evidence before the trial Court that the contract entered into by the parties was a divisible or severable one, so as to warrant acceptance of supply of some and rejection of others. At paragraph 3 of the Appellant’s Statement of Claim, it was averred that under the terms of the contract between the parties, the Defendant was to deliver to the Plaintiff the said 20 tankers within 8 working weeks from the date of receipt of advance payment from the Plaintiff, which advance payment was to be 80% of the total purchase sum. Equally, the evidence of P W 1 did not depict that the contract was a divisible or severable one, therefore the Appellant was not entitled under section 35 of the Sale of Goods Act, to reject the supply of the remaining two tankers or refuse to pay for 2 out of the 18 tankers supplied it.
It is an established principle that acceptance of part of the goods is an acceptance of the whole, and this bars the right to reject, except in the case of goods mixed with goods of different descriptions and severable contracts There may be circumstances in which the seller may claim for loss in addition to the price, e.g, where the seller is ready and willing to deliver the goods and requests the buyer to take delivery, and the buyer does not within a reasonable time after such request to take delivery of the goods, the buyer is liable to the seller for any loss occasioned by his neglect or refusal to take delivery, and also, for a reasonable charge for the care and custody of the goods See section 37 of the Sale of Goods Act So, where the property has passed but the buyer does not take delivery, the seller’s principal remedy is an action for the price under section 49 He may also claim damages under section 37. However, where the property has not passed, the seller’s remedy normally lies in damages for wrongful repudiation or for non acceptance.
In the instant appeal, the Respondent counter-claimed for the sum of N8,355,384 00 being the balance of 20% payment on the 18 tankers already delivered to the Plaintiff PW1 in his cross-examination admitted that the initial deposit of 80% made for the 20 tankers did not cover the 18 tankers collected. It is clear that the Appellant was still owing for the balance of the 18 tankers already supplied to it, and, had indeed refused taking delivery of the remaining 2 out of the 20 tankers when called upon by the Respondent to do so.
As I earlier opined, where the Appellant had taken delivery of the other two tankers out of the 18 supplied, without paying for their purchase price, which is still outstanding, the Respondent was, therefore, right in law to have sued for the price of the two out of the 18 tankers the Appellant had taken delivery of I must with due respect, say that the finding of the trial Court in this respect is impeccable, it was based on a sound principle of law, I cannot fault it.
With regard to the claims of the Appellant, the evidence adduced via PW1 at pages, 17, 18, 19, 20, is thus:
“For the whole 9 months within which I had not been supplied the Tanks, Habeeb Bank kept charging me interest on the loan I took We also received over N18 million for the insurance of the Truck heads which had been already by Armeco waiting the Tanks. By the time I collected the Tanks the N30 million overdraft facility had gone into bank charges plus interest and insurance etc The defendant was aware that Trucks were being constructed for the movements of petroleum products of Oando to their various stations in Nigeria. The failure of the defendant to supply the Tanks affected the plaintiff for it did not have the money to pay the Bank charges, interest and insurance, the minimum trips we were expected to make vites (sic) Oando and which was N163,000 Lagos so Suleja, Suleja Abuja 4 times a month per trip one is expected to do more than that.
As of the time this suit was initiated the breach of contract suffered was Ca (sic) N70,660,000 for the Bank charges, insurance payments While on the 2 tanks yet to be supplied we keep losing N163, 000 per the 4 trips per month for the months from September to date. The interest that have accrued and when we are unable to pay, the Bank is still charging us interest but that of the insurance company. I have asked them to stop after a year as that is within my projection when I realized the extent of my losses I discussed with the accountant of Armeco and the production Manager and I eventually wrote them a letter”
The Plaintiff, however, at paragraphs 10, 11 and 12 of it’s Statement of Claim at page 4 of the record of appeal averred as follows:
“10 The Plaintiff avers that the breach of contract by the Defendant has caused it losses which as at the 20th of September 2004 stood at about =N=70,660,000 (Seventy Million Six Hundred and Sixty Thousand Naira) particularized as follows
i Extra bank interest on the lease financing =N=13,500,000 (thirteen million, five hundred thousand naira only)
ii. Losses to Insurance payments =N=5,000,000 (Five million naira only).
iii. Loss of income =N=52, 160,000 (assessed as, 16 as tankers, each scheduled to make 4 trips in a month, and therefore each tanker to make a profit of =N=163,000 per trip for a period of 5 months i e April to September each trip being from Lagos to Suleja.
11 The Plaintiff further avers that to date it has only received eighteen (18) out of the twenty (20) trucks to be supplied by the Defendant and the Defendant has failed, neglected or refused to deliver to the Plaintiff the other two tankers further continuing and compounding the losses suffered by the Plaintiff. The Plaintiff avers that the non-delivery till date of the two tankers has also caused further losses to it wit
i Extra bank interest on the lease financing =N=3,034,915 66 on the remaining two (2) tankers from September, 2004 to the date of filing this Statement of Claim
ii. Loss of income =N=1,630,000 (assessed as 2 tankers, each scheduled to make 4 trips in a month, and therefore each tanker to make a profit of =N=163,000 00 per trip for a period of 5 weeks i e September to date each trip being from Lagos to Suleja).
Totaling =N=4,664,915 66 (Four million, Six hundred thousand, nine hundred and fifteen naira, sixty-six kobo)
12 The Plaintiff further avers that by it’s letter dated 20th September 2004, it wrote to the Defendant and demanded the payment to it of the sum of =N=70,660,000 being losses suffered by the Plaintiff as at that date occasioned by the breach of contract of the Defendant but the Defendant ignored the demands of the Plaintiff for amicable settlement and payment”
It is clear in the evidence of PW1 and as were observed by the trial Court, that the total loss of income of the sum of N52.160.000 as regards the 16 tankers at the rate of N163.000 expected trips for Lagos to Suleja and Suleja to Abuja per trip for a period of five months was not articulated by PW1, as particularized at paragraph 10 of the Statement of Claim It is a basic principle of law that pleading can never substitute for evidence Furthermore, it was not shown in the evidence of PW1 how the respective sums of N70,600,000 and N4,664,915 66 allegedly suffered by the Appellant were arrived at The act of pleading special damages is entirely different from the fact of proving the same strictly and specifically.
It must be noted that this heading of damages fell under special damages, therefore, whether they were disputed, contradicted, challenged and debunked or not by the Respondent, those damages must be specifically and strictly proved by the Appellant as required by the law Special damages consist of those items which must be specified before they may be proved and recovered, therefore, it would be improper for a trial Judge to award special damages on inconclusive facts given from memory which have not been documented any where, and the trial Judge can not make his own individual assessment, but, must act strictly on the evidence before him which he accepts as establishing the amount to be awarded. The Court is not entitled to do any arithmetical calculations for the parties. It is, therefore, my candid opinion, as was indicated by the trial Court in the record of appeal before this Court, that PW1 ought to have particularized in his evidence, how the loss of income of N163,000 per tanker per trip on the Lagos Suleja route culminated to the sums of N52,160,000 and N4,664,915 66 respectively claimed in the Appellant’s Statement of Claim PW1, failed to pinpoint to the trial Court the pages in Exhibit C indicating the Bank charges and interest totalling the sum of N13,500,000 debited against the account of the Appellant by the Bank. It is based on the foregoing that I find my self unable to resolve the issues distilled by the Appellant in it’s favour and endorse the lead judgment of my learned brother. In the circumstance, I find this appeal unworthy of succeeding. The said appeal is hereby dismissed by me. The judgment of the trial Court is hereby affirmed I make no order as to costs.
>
Appearances
Wilfred Usani Esq.For Appellant
AND
E. C. Aneme Esq.For Respondent
