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SHOPRITE CHECKERS (PTY) LTD & ANOR v. A. I. C. LTD (2020)

SHOPRITE CHECKERS (PTY) LTD & ANOR v. A. I. C. LTD

(2020)LCN/15543(CA)

In The Court of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, May 21, 2020

CA/L/288/2018

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Tijjani Abubakar Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Between

1. SHOPRITE CHECKERS (PTY) LIMITED 2. RETAIL SUPERMARKET NIG. LTD. APPELANT(S)

And

A. I. C. LIMITED RESPONDENT(S)

RATIO:

WHAT IS CONTRACT FORMED BY CONDUCT?

I think it is trite that a contract can be formed by conduct where the minds of the contracting parties are considered by what is expressed in their correspondence together with the surrounding circumstances that they agreed to the contract without the parties executing a formal contract vide Olowu v. Building Stock Ltd. and Ors. (2018) 1 NWLR (pt.1601) 343 at 436. JOSEPH SHAGBAOR IKYEGH, J.C.A.

WHEN CONTRACT WILL BE FORMED BY CONDUCT

In any event, assuming without agreeing that there was no contract by conduct, the Supreme Court case of Trenco (Nigeria) Ltd. v. African Real Estate and Investment Co. Ltd. and Anor. (1978) 4 S.C. 9, is instructive. In that case the appellant had expended money in clearing a site and commencing construction thereon pursuant to a letter, Exhibit 1, from the 1st respondent to construct a new hotel building for guests for the oncoming independence celebration of Nigeria in 1960. While work was in progress on the site, the 1st respondent wrote to the appellant to stop work because the 1st respondent was no longer wishing to go on with the contract because there was doubt as to the genuiness of title to the land. The appellant sued for breach of contract. The trial Court dismissed the action.
The Supreme Court held on appeal that the appellant had made out a case in equity against the 1st respondent in these unedited words –
“We have held that Exhibit I is not properly a contract between the plaintiff and the 1st defendant companies. But does the matter rest at that. Obviously not…”. Exhibit I … Commissioned the plaintiffs to act with dispatch in constructing the new Hotel … Relying on this, the plaintiffs proceeded with the work … expending money… we think in circumstances of this case certain equities must enure to the benefit of the plaintiffs…
For this Court to allow the 1st defendant respondent to get away with it would amount to yielding to what amounts to constructive fraud which term is clearly explained in Nocton v. Lord Ashburton AC. 912. It is a case in which this Court, acting as a Court of conscience, must prevent the plaintiff company from suffering pecuniary injury against the dictates of conscience …” JOSEPH SHAGBAOR IKYEGH, J.C.A.

PRINCIPLE OF GENERAL DAMAGES

General damages are presumed by law to be the direct, natural or probable consequence of the act complained of but the quantification thereof is at the discretion of the Court vide Ajigbotosho v. Reynolds Construction Co. Ltd. (2019) 3 NWLR (pt.1659) 287 following the cases of Ijebu-Ode Local Government v. Adedeji Balogun and Co. Ltd. (1991) 1 NWLR (pt.166) 136, Eseigbe v. Agholor (1993) 9 NWLR (pt.316) 128, Badmus v. Abegunde (1999) 11 NWLR (pt.627) 493. JOSEPH SHAGBAOR IKYEGH, J.C.A.

RULE ON AWARD OF DAMAGES FOR BREACH OF CONTRACT

In the over a century and half case of Hadley v. Baxendale (1843 – 60) All E.R. Rep. 461,……….

In summation, the rule on award of damages for breach of contract laid down in the case of Hadley v. Baxendale (supra) therefore pertains to (i) damages fairly and reasonably considered by the parties to the making of the contract that naturally and in the usual course of things arose from the breach of contract; (ii) damages as may reasonably supposed to have been in the contract itself; (iii) damages such as may reasonably be supposed to be in the contemplation of both parties at the time they made the contract as the probable result of the breach. JOSEPH SHAGBAOR IKYEGH, J.C.A.

PRINCIPLE OF AWARD OF GENERAL DAMAGES IN CONTRACT

In other words, general damages are such as the law presumes to be the direct, natural or probable consequence of the act complained of. A claim of general damages means that the claimant cannot prove particular items, but can prove that there has been pecuniary loss vide Onyiorah v. Onyiorah and Ors. (2019) 15 NWLR (pt.1695) 227 at 247 – 248.
In contract therefore general damages are those that the law presumes or infers flow from the type of breach complained of as compensation for the loss that was occasioned by the breach as reasonably expected by the parties at the time of making the contract. It is also called direct damages or necessary damages. JOSEPH SHAGBAOR IKYEGH, J.C.A.

INSTANCE WHERE THE APPELLATE COURT WILL INTERVENE WITH AMOUNT AWARDED BY THE TRIAL COURT

An Appellate Court cannot substitute a figure of its own for the one awarded by the Court below merely because it would have awarded a different figure if it had determined the case as the Court of first instance or trial Court. Before an Appellate Court can justifiably intervene, it must be satisfied that either the Court below, in assessing damages, applied a wrong principle of law such as taking into consideration irrelevant factor or not taking into account some relevant factor; or that the amount awarded is either so ridiculously high or so ridiculously low that it might have been a wholly erroneous estimate of the damages awarded as to amount to wrongful exercise of discretion by the Court below in awarding the damages complained of vide Ojini v. Ogo Oluwa Motors Nigeria Ltd. (1998) 1 NWLR (pt.534) 353 at 362 – 363 following Flint v. Lovell (1935) KB 354 at 360, Shodipo and Co. Ltd. v. The Daily Times of Nigeria Ltd.(1972) 11 SC 69 at 77, Uwa Printers Nig. Ltd. v. Investment Trust Co. Ltd. (1988) 5 NWLR (pt.92) 110, Obere v. Board of Management, Eku Baptist Hospital (1978) 6 – 7 SC 15, Ogaba v. Olatusin (1961) 2 SCNLR 13, Weidemann and Walters (Nig.) Ltd. v. Oluwa In Re: Intra Motors (Nig.) Ltd. (1968) 1 All NLR 383. JOSEPH SHAGBAOR IKYEGH, J.C.A.

FLUCTUATING VALUE OF MONEY AS CONSEDERATION FOR THE AWARD OF DAMAGES

In making the award of damages, it is relevant to bear in mind galloping inflation or the fluctuating value of money or the consistent depreciation of the value of the Naira which appeared to have been obvious at the time of judgment vide Ighreriniovo v. S.C.C. Nigeria Ltd. and Ors. (2013) 10 NWLR (pt.1361) 138 at 153 – 154 following Eze v. Lawal (1997) 2 NWLR (pt.487) 333, Ifeanyi Chukwu Osondu Co. Ltd. v. Akhigbe (1999) 11 NWLR (pt.625) 1, Ugo v. Okafor (1996) 3 NWLR (pt.438) 542, Kalu v. Mbuko (1988) 3 NWLR (pt.80) 86. JOSEPH SHAGBAOR IKYEGH, J.C.A.

GENERAL PRINCIPLE OF LAW REGARDING COST OF DAMAGES TO A SUCCESSFUL PARTY

The general principle therefore is that costs which follow the event should be awarded to a successful party (unless the successful party misbehaved in the course of the proceedings); and that the award of costs being discretionary, the Court awarding the costs must exercise the discretion judicially and judiciously. See the case of N.N.P.C. v. Clifco Nigeria Ltd. (2011) 10 NWLR (pt.1255) 209 at 234- 235 and the case of G.K.F. Investment Nigeria Limited v. Nigeria Telecommunication Plc (2009) 7 S.C.N.J. 92 at 119 – 112 following the cases of The Queen v. The Governor in Council, Western Region, Ex Parte Kasalu Adenaiya (1962) 1 A.N.L.R. 300, (1962) 1 S.C.L.R. 442; Lawal v Ijale (1967) 5 N.S.C.C. 94; Obayagbona v. Obazee (1972) 5 S.C. 241; Mazin Engineering Ltd. v. Tower Aluminum (Nig.) Ltd. (1993) 6 S.C.N.J. (pt.II) 176 at 190, Union Bank of Nigeria Ltd. & Anor. v. Nwaokolo (1995) 6 N.W.L.R. (pt.400) 127 at 149; (1995) 4 S.C.N.J. 93 and Mrs. F. K. Douglas v. Dr.M.C.A. Peterside (1994) 3 N.W.L.R. (pt.330) 37 at 52 CA. JOSEPH SHAGBAOR IKYEGH, J.C.A.

PARTIES ARE BOUND BY THEIR PLEADINGS

It is trite that parties are bound by their pleadings vide Emegokwue v. Okadigbo (1973) 4 S.C. 113 or (1973) NMLR 192. JOSEPH SHAGBAOR IKYEGH, J.C.A.

AGREEMENT BETWEEN TWO PARTIES IS NOT BINDING ON A THIRD PARTY NOT PARTY TO THE AGREEMENT

For it was held in the case of Westminister Dredging (Nig.) Ltd. v. Oyibo (1992) 5 NWLR (pt.239) 77 at 101 that an agreement between two parties is not binding on a third party not party to the agreement. JOSEPH SHAGBAOR IKYEGH, J.C.A.

POSTION OF LAW WHERE AN ALTERNATIVE CLAIM IS MADE IN ADDITION TO THE MAIN CLAIM

I think where an alternative claim is made in addition to the main claim, as in this case, the main claim should be considered first and if not successful, consideration of the alternative claim can be made by the Court concerned with the litigation as both the main claim and the alternative claim cannot be granted vide U.B.N. Ltd. & Anor. v. Penny Mart Ltd. (1992) 5 NWLR (pt.240) 228 at 241 following the cases of Nigerian Supplies Manufacturing Co. Ltd. v. Nigerian Broadcasting Corporation (1967) 1 All NLR 35 and Mercantile Bank of Nigeria Ltd. v. Adalma Tanker and Bunkering Services Ltd. (1990) 5 NWLR (pt.153) 747. JOSEPH SHAGBAOR IKYEGH, J.C.A.

WHETHER EVERY ERROR COMMITTED BY A COURT MAY LEAD TO ALLOWING AN APPEAL

The complaint, though well taken, is not enough to vitiate the decision arrived at in the case by the Court below as it is not every error committed by a Court that may lead to allowing an appeal unless the error is so fundamental that it has rendered the decision arrived at perverse which was not the case here vide Adejumo v. Ayantegbe (1989) 3 NWLR (pt.110) 417, at 433, Adeyemi v. A.-G., Oyo State (1984) 1 SCNLR 225, Balewa v. Doherty (1963) 1 WLR 949. JOSEPH SHAGBAOR IKYEGH, J.C.A.

PERSONAL LIABILITY OF PARTY USING THE NAME OF THE CORPORATE BODY TO PERPETRATE THE FRAUD

I think lifting the veil of incorporation or piercing the corporate veil is the judicial act of fastening liability on the individual members of the company and imposing personal liability on them for the fraud they committed on a third party dealing with the corporate body while hiding behind the shield or mask or veil of the corporate body by using the name of the corporate body to perpetrate the fraud vide Oyebanji v. State (2015) 14 NWLR (pt.1479) 270. JOSEPH SHAGBAOR IKYEGH, J.C.A.

WHEN DOUBLE COMPENSATION ARISES IN THE AWARD OF DAMAGES

Double compensation arises in the award of damages when as stated in the case of GE International Operations (Nig.) Ltd. v. Q. Oil and Gas Services Ltd. (2016) 10 NWLR (pt.1520) 304 both special and general damages and/or separate damages on different heads of damages are awarded for the same set of facts. See also Ativie v. Kabelmetal Nig. Ltd. (2008) 10 NWLR (pt.1095) 399 at 420, British Airways v. Atoyebi (2014) 13 NWLR (pt.1424) 253. JOSEPH SHAGBAOR IKYEGH, J.C.A.

WHETHER A CORPORATE BODY CAN BE ENTITLE TO DAMAGES FOR WONNDED FEELINGS

Now aggravated damages are meant to compensate the plaintiff for his wounded feelings vide Ilouno v. Chiekwe (1991) 2 NWLR (pt.173) 316 at 325 followed in N.D.L.E.A. v. Omidina (2013) 16 NWLR (pt.1381) 589 at 616, Odiba v. Azege (1998) 9 NWLR (pt.566) 370, Williams v. Daily Times (Nig.) Ltd. (1990) 1 NWLR (pt.124) 1. But a corporate body is an artificial entity and may not have the anatomy to experience wounded/injured feelings as distinct from injury to its credit or corporate image as a corporate body, so I do not, with deference, think the purport of aggravated damages hinged on wounded feelings which may have to do with human dignity will not fit a corporate body in the realm of the law of contract. JOSEPH SHAGBAOR IKYEGH, J.C.A.

PRINCIPLE OF LAW CONCERNING EXEMPLARY DAMAGES

Exemplary damages also known as punitive or vindictive damages can apply only where the conduct of the defendant merits punishment. And this may be considered to be so where the conduct is wanton in the sense that the conduct disclosed fraud, malice, cruelty, insolence or the like; or where the conduct is a contumelious disregard of the plaintiff’s rights or where there is infraction of statutory/constitutional right by public servants vide Odiba v. Azege (1998) 9 NWLR (pt. 566) 370 followed in Miss Promise Mekwunye v. Emirates Airlines (2019) 9 NWLR (pt.1677) 191 at 225. JOSEPH SHAGBAOR IKYEGH, J.C.A.

PRINCIPLE CLAIM FOR LOSS OF ANTICIPATED PROFIT

The claim for loss of anticipated profit is by its nature prospective in that the loss has not actually occurred. The specie of claim is based on mere estimates which suggests something that is not final or something to be ascertained with exactitude at a later date but does not mean the expenses had been incurred as it is a preliminary statement of the probable cost of proposed undertaking and is as good as an exercise in mere conjecture or guess-work which is the opposite of precise calculation of damages vide Ajigbotosho v. Reynolds Construction Co. Ltd. (2019) 3 NWLR (pt.1659) 287.
The claimant must also establish by evidence loss of business or customers as a result of the breach before the claim for anticipated profits will lie vide Uwa Printers (Nig.) Ltd. v. Investment Trust Company Ltd. (1988) 5 NWLR (pt.92) 110 at 127 (para. C), and 132 (para G and H).
The Supreme Court reiterated in the case of U.B.N. Plc v. Nwankwo (2019) 3 NWLR (pt.1660) 474 at 483 that profit margin or loss of profit based on future transactions is speculative and based on uncertainty of market forces remaining static throughout the transaction and the safety of movement of goods remaining incidence free and cannot on that account be within the contemplation of the parties at the time of making the contract and therefore remote as a consequence of the act of a defendant as it could not have been foreseen by the defendant at the time of making the contract that led to the action. JOSEPH SHAGBAOR IKYEGH, J.C.A.

PRE-JUDGMENT INTEREST

Pre-judgment interest was not established to have arisen from mercantile custom or statute or in the contemplation of the parties and/or agreed upon by the parties at the making of the contract and could not have been awarded in the circumstances of the case vide Ekwunife v. Wayne W/A Ltd. (1989) 5 NWLR (pt.122) 422. JOSEPH SHAGBAOR IKYEGH, J.C.A.

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal is from the decision of the High Court of Justice of Lagos State (the Court below) whereby it found that the respondent, as the claimant at the Court below, had established by evidence, the existence of a partnership venture agreement between the respondent and the 1st appellant, as the 1st defendant at the Court below, by conduct, which had been breached by the 1st appellant upon which the Court below awarded the sum of $10 Million (Ten Million United States Dollars) with post-judgment interest in favour of the respondent against the appellants. The Court below, however, dismissed the respondent’s claim for the remedy of specific performance and for anticipated loss of profit, special, exemplary, aggravated and punitive damages.

​The facts behind the dispute albeit, skeletally stated, from the side of the respondent were that the 1st appellant, a South African company, at all material times, conducted supermarket outlets for food and non-food items in some parts of Africa excluding Nigeria. Negotiations were made between the respondent and the 1st appellant by way of proposals and discussions to establish a collaborative or joint business venture in Nigeria for the same purpose. The respondent caused to be prepared a feasibility document containing the studies and business projection reports for the partnership venture.

The 1st appellant suggested that their chair-person, a Dr. C.H. Wiese with a Mr. J. W. Basson, should be involved in the discussion in Nigeria on the possibility of the joint venture between the respondent and the 1st appellant. This was accomplished by the business visit of the 1st appellant’s representatives to Nigeria where they had business discussions on the proposed partnership project with the respondent. The respondent settled modalities for the journey of the 1st appellant’s team from South Africa to Nigeria. Pursuant to the above, the respondent incorporated a Nigerian company known as “Shoprite – AIC Nigeria Limited” in anticipation of the take-off of the partnership venture.

The facts as disclosed by the appellants were that the 2nd appellant was incorporated in Nigeria in November, 2004 after the board of directors of Shoprite Holdings approved the expansion to Nigeria. That the dispute was not whether both parties discussed proposals or possibilities of a joint venture agreement, but whether the discussions or proposals culminated with a joint venture agreement, and if there was a joint venture agreement which was breached, what was the extent of the damages for which the respondent should be compensated financially.

The Court below held in its judgment that there was a subsisting contract by conduct between the respondent and the 1st appellant (Shoprite) with respect to the joint venture, which the latter had breached upon which it awarded $10 Million damages and post-judgment interest thereon in favour of the respondent against the appellants.

Dissatisfied with the judgment, the appellant filed a notice of appeal with several grounds of appeal challenging the said judgment. The appellants filed their joint brief of argument on 24.09.19, which was deemed as properly filed on 02.12.19. Four (4) issues were identified for determination in the appellants’ brief of argument.

The appellants referred first to Exhibit P29 written by the Chief Executive Officer (CEO) of the respondent dated 23.04.98 and then to Exhibit P12, extract of the minutes of the meeting held at Victoria Island, Lagos, upon which some representatives of the 1st appellant visited Nigeria in May, 1998 and met with the respondent on 27.05.98 without the respondent forwarding any standard joint venture documentation to the 1st appellant to contend that the correspondence and interaction between the 1st appellant and the respondent amounted to an invitation to treat without crystallizing into an offer from the respondent to the 1st appellant for the latter to accept; therefore based on Exhibit P6 dated 29.09.97 and Exhibit P16 dated 16.04.98, the Court below could not have been right to hold that the 1st appellant had the opportunity to reject the offer at the meeting of 27.05.98, thus constituting acceptance by conduct, when there were no terms of any offer made by the respondent to the 1st appellant at the said meeting for the 1st appellant to consider and accept.

Consequently, the appellants contended that the Court below was wrong to hold that there was a binding contract by conduct between the 1st appellant and the respondent when there was no evidence of an offer which should precede acceptance together with consideration to constitute a binding and enforceable contract citing in support the cases of Orient Bank Plc v. Bilante Int’l (1997) 8 NWLR (pt.515) 37 at 76, Best Nigeria Ltd. v. Blackwood Hodge Nigeria Ltd. (2011) LPELR – 776, B.F.I.G. v. B.P.E. (2008) All FWLR (pt.416) 1915 at 1936, Neka BBB Manufacturing Co. Ltd. v. ACB Ltd. (2004) LPELR – 1982, Ojo v. ABT Associates Incorporated and Anor. (2014) LPELR – 22860 (CA).

The appellants further contended that had the Court below properly evaluated Exhibit P15 and considered Exhibit P11 which had only the respondent’s representative on the board of the company in which the 1st appellant had indicated its intention to register the 2nd appellant to partner with the respondent in the joint venture, respectively, the Court below would not have found in its judgment that there was a binding contract between the 1st appellant and the respondent.

Accordingly, the appellants urged that the Court sitting as an Appellate Court should evaluate the documentary evidence and come to the conclusion that there was no binding contract between the 1st appellant and the respondent vide Orient Bank Nig. v. Bilante International Ltd. (supra) at 76 para. B-C, Chukwuma v. Ifeloye (2008) LPELR – 862 (SC), Amasike v. Registrar-General CAC & Anor. (2005) LPELR – 5407 (CA), Adewuyi & Ors. v. Ipaye (2014) LPELR – 22691 (CA).

The appellants referred to Exhibit P18 dated 29.10.97, the minutes of the meeting of 16.04.98, as well as the meeting of 27.05.98, and Exhibit P9 dated 10.12.98, to contend that when these Exhibits are taken together the acts relied upon by the Court below as acceptance of the respondent’s offer which was yet to be made, is neither here nor there.

It was also contended that Exhibits P6, P10 and P11 showed there was no offer and thus no express acceptance by the 1st appellant to constitute a valid and binding contract between the respondent and the 1st appellant; and that, at best, the correspondence and discussions were negotiations in the process of formation of a contract demonstrating that the decision of the Court below that there was a contract by conduct between the 1st appellant and the respondent was against the weight of evidence vide the cases of Metibaiye v. Narelli International Ltd. (2009) 16 NWLR (pt.1167) 326, Neka BBB Manufacturing Co. Ltd. v. ACB Ltd. (supra), U.B.A. Ltd. v. Tejumola & Sons Ltd. (1988) 2 NWLR (pt.79) 662, BFI Group Corporation v. Bureau of Public Enterprises (B.P.E.) (2012) LPELR – 9339.

The appellants contended that much against the tenet of corporate personality, the respondent had argued at the Court below that the 2nd appellant ought to be held liable for the alleged breach of contract because the 2nd appellant is a member of the 1st appellant, Shoprite Group, and that as one Carel Genis, and one Philip Van Der Merwe who are on the board of the 2nd appellant are employees of the 1st appellant, the appellants should have been held liable by virtue of these connections.

It was also contended by the appellants that having awarded declaratory reliefs by holding in its judgment that having regard to the facts of the case and the positive conduct of the parties, there existed a subsisting contract between the respondent and the 1st appellant which had been breached by the 1st appellant, without finding the 2nd appellant liable for the alleged breach of contract, the Court below was wrong to award $10 Million damages jointly and severally against the appellants with interest of 10% per annum effective from the date of judgment until final liquidation of the entire sum.

It was further contended that since the respondent did not establish by evidence that the 2nd appellant was a party to the contract and/or contributed to its breach, the consequential relief of damages granted by the Court below not being based on the grant of any of the principal reliefs against the 2nd appellant should not be allowed to stand citing in support the cases of UBN Plc v. Adom and Anor (2002) LPELR – 7173, Chiemeka Tapauline Ind. Nigeria Ltd. v. U.B.N. Plc (2011) LPELR – 3971.

The appellants contended that should the decision of the Court below on liability be upheld, actual loss having not been established by the respondent the award of $10 Million damages was not only grossly excessive but lacked particularization and strict proof and amounted to sentimental, arbitrary and/or speculative exercise of the discretion of the Court below in awarding the said damages when the Court below had rightly declined to award anticipated loss of profits, special, exemplary and aggravated damages; more so, there was no specific provision or express terms of the contract for the award of the said damages; consequently, the Court should disturb or interfere with the said award of damages which was based on erroneous grounds and/or wrongful exercise of discretion by the Court below citing in support Hadley v. Baxendale (1843 – 60) All E.R. (Rep.) 461, Panabiz Int’l Ltd. v. Addidon Nig. Ltd. and Anor (2016) LPELR – 41350, S.P.D.C. (Nig.) Plc v. Dino (2007) 2 NWLR (pt.1019) 438 at 465 – 466, Balogun v. National Bank Nig. Ltd. (1978) LPELR – 723, Egom and Ors. v. Eno and Anor. (2007) LPELR – 3958, Chitex Ind. Ltd. v. O.B.I Nig. Ltd. (2005) 14 NWLR (pt.945) 392 at 410 and 419, Afribank Nig. Plc. v. A.I. Invest. Ltd. (2002) 7 NWLR (pt.765) 40 at 71 – 72, Olurotimi v. Ige (1993) 8 NWLR (pt. 311) 257 at 268, Allied Bank of Nigeria Ltd. v. Akubueze (1997) LPELR 429; Anambra State Environmental Sanitation Authority and Anor. v. Ekwenem (2009) 6 – 7 S.C. (pt.11) 5 at 28 – 29, SPDC Ltd. v. Nwabueze (2013) LPELR – 21178, Lar v. Stirling Astaldi (Nig.) Ltd. (1977) LPELR – 1755, GTB Plc v. Abiodun (2017) LPELR – 42551, NNPC v. Jacob and Ors. (2012) LPELR – 9290.

The appellants contended that by not giving reasons, save the long duration of the case, the award of costs of N1 Million in favour of the respondent, made by the Court below amount to wrongful exercise its discretion especially as the said costs were clearly punitive and excessive or on the high side and should be set aside vide Seven-up Bottling Co. Plc v. Ajayi (2007) LPELR – 8765, Hadejia Jama’Are River Basin Development Authority v. Chimade (Nig.) Ltd. (2016) LPELR – 40202, Chijoke v. Soetan (2006) LPELR – 7683.

The appellants contended that the delivery of judgment by the Court below some eight (8) months outside the 90 days prescribed by Section 294(1) of the Constitution of the Federal Republic of Nigeria 1999, as altered, (1999 Constitution), rendered the said judgment a nullity due to passage of time which had afflicted the apprehension and appreciation of the evidence by the Court below; hence, for instance, the Court below did not comment on the significance or otherwise of Exhibit P10(4) where the respondent had in June, 2000, written to the 1st appellant indicating interest in a joint venture agreement, well after 1999, when the Court below held there was a binding contract by conduct between the 1st appellant and the respondent.

The appellant also pointed out what it thought was lapse of memory of the facts of the case by the Court below due to the passage of time were that the Court below failed to comment on Exhibit P10(28), the respondent’s letter of June, 1998, seeking to ‘finalise’ the joint venture, nor did the Court below consider Exhibit P11(5), the 1st appellant’s letter indicating that its CEO would not be visiting Nigeria and the impact of the said letter on any alleged acceptance by the 1st appellant, as well as Exhibit P2C, a video tape of the surprise dinner party, which was played in the open Court during the proceedings of 19th March, 2013, which all indicated that due to lapse of time the Court below misinterpreted the negotiations between the parties to mean acceptance by conduct of the respondent’s joint venture offer by the 1st appellant.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Consequently, the appellants argued that the decision of the Court below did not flow with the evidence indicated above showing the long delay in the delivery of judgment by the Court below affected its perception of the facts of the case and occasioned a miscarriage of justice to the appellants and should be set aside on that ground vide Olusanya v. UBA (2017) LPELR (42348) 1 at 10, Igba v. State (2017) LPELR – 42990; and that the appeal should be allowed and the judgment of the Court below set aside in its entirety.

The respondent filed their brief on 31.12.19. The brief incorporated the cross-appellant’s brief for the cross-appeal. The cross-appeal itself was filed on 29.02.18. The respondent relied on the cases of Atungwu v. Ochekwu (2013) 14 NWLR (pt.1375) 605, Akoma v. Osenwokwu (2014) 11 NWLR (pt.1419) 462 at 488, Chiazor v. The State (2018) LPELR – 44831, Tsokwa Motor (Nig.) Ltd. v. U.B.A. Plc (2008) 2 NWLR (pt.1071) 347 at 376, Akpan v. Umoh (1999) 11 NWLR (pt.627) 349, Akoma v. Osenwokwu (2014) 11 NWLR (pt.1419) 462 at 488 – 489, Olowu v. Building Stock Ltd. (2018) 1 NWLR (pt.1601) 343 at 354, Agbarah v. Nimra (2008) 2 NWLR (pt.1071) 378 at 410 – 411, Adedeji v. Obajimi (2018) 16 NWLR (pt.1644) 146 at 165, Olujinle v. Adeagbo (1988) 2 NWLR (pt.75) 238 at 254, Brila Energy Ltd. v. F.R.N. (2018) LPELR – 43926, Okechukwu Maraire v. The State (2013) LPELR – 20731 to contend that the evaluation and ascription of probative value to the evidence was based, in the main, on the documentary Exhibits placed before the Court below; so the delay in delivery of judgment did not affect the outcome of the case; that devoid of reliance on the demeanour of witnesses by the Court below.

It was argued that whatever error there might be in the mix-up made by the Court below on the date of some of the documentary Exhibits was a slip which can be resolved by looking at the actual dates the documentary Exhibits, which should speak for themselves, bear and cannot be varied by oral evidence; and that assuming without agreeing that the judgment was delivered outside 90 days in contravention of Section 294(1) of the 1999 Constitution, the appellants did not establish any substantial miscarriage of justice by the delivery of the judgment by the Court below outside 90 days.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

The respondent relied in the part on paragraph 9 of Exhibit P3, witness statement on oath of CW2, to contend that the agreement between the parties was partly oral, partly in writing, partly by conduct and partly by part-performance showing the parties by their conduct had by the series of correspondence between them agreed to be partners in the setting up and operation of Shoprite outlets in Nigeria which supported the findings of fact made by the Court below where it found and concluded in its judgment in page 2249 of the record of appeal (the record) that the appellants had surreptitiously gone behind the respondent to establish Shoprite outlet in one of the locations earlier searched, identified and shown to the 1st appellant by the respondent and were therefore in breach of the agreement on account of which the respondent was entitled to be compensated.

Consequently, it was argued by the respondent that the said findings of fact not having been shown to be perverse and/or against the trend of evidence and, in particular, the finding on part-performance having not been appealed against should not be disturbed vide Oshatoba v. Olujitan (2000) 5 NWLR (pt. 655) 159 at 175, Sossa v. Fokpo (2001) 1 NWLR (pt. 693) 16, UTC (Nig.) Plc v. Phillips (2006) 6 NWLR (pt.1295) 136, Odje v. YPS (Nig.) Ltd. (2014) 5 NWLR (pt.1400) 412 at 430, Brodgen v. Metropolitan Railway Corp. (1877) A.C. 666, KRK Holdings v. First Bank (2017) 3 NWLR (pt.1552) 326 at 342, Onafowokan v. Wema Bank Plc (2011) 12 NWLR (pt.1260) 24 at 39, Akinbiyi v. Anike (1959) WRNLR 16, Alaribe v. Okwuonu (2015) LPELR – 24297, Treitel on Contract 12th Edition at page 19, Onayemi v. Idowu (2008) 9 NWLR (pt.1092) 306 at 334, Mba-Ade v. Okufo (1990) 2 NWLR (pt.135) 787 at 797, Tsokwa Oil Marketing Co. v. B.O.N. Ltd. (2002) 11 NWLR (pt.777) 163 at 196, UBA Plc v. Tejumola and Sons Ltd. (supra) at 686.

The respondent also contended that it is misleading for the appellants to take apart the phrase “proposed joint venture” used by the South African High Commissioner in Exhibit P12(2) when the High Commissioner expressed in the same Exhibit P12(2) “the hope that the venture will commence operations soon” to conclude that there was no existing contract between the parties which was in disregard of the series of correspondence between the parties and their oral discussion coupled with the surrounding circumstances indicating an agreement, which usually preceded the commencement of operations, was struck by the respondent and the 1st appellant vide Carmichael v. National Power Plc (1999) 1 WLR 2042, Yovell v. Blend and Co. Ltd. (1992) Lloyds Rep. 127, BFIG v. BPE (2008) All FWLR (pt.416) (no pagination), Gerrard McMeal ‘Construction of Contracts’ 150 paragraph 4.04 and 168 paragraph 1.57.

The respondent added that devoid of the words “proposed joint venture”, evidence of surrounding circumstances like visits to potential retail outlets by the 1st appellant’s representatives, approval of the proposed outlets by the 1st appellant’s representatives, the 1st appellant not distancing itself from the terms and conditions in Exhibit P9, payments made to owners of the land for the proposed retail outlets by the respondent to the knowledge of the 1st appellant confirmed that parties had passed the stage of proposals and negotiations and entered into the realm of formation of joint venture agreement between the appellants and the respondent which had altered the position of the respondent and estopped the appellants from acting inconsistent with it vide Trade Bank Plc v. Morenikeji (Nig.) Ltd. (2005) 6 NWLR (pt.921) 309 at 332, B.F.I.G. v. B.P.E. (2012) 18 NWLR (pt.1332) at 240.

It was also contended by the respondent that the failure of the 1st appellant’s representative, a Mr. Basson, to visit Nigeria did not affect the fact that parties had agreed on the joint venture and that, in any event, the failure of his visit was the fault of the 1st appellant who should not be allowed to benefit from its own wrong vide PDP v. Ezeonwuka and Anor. (2017) LPELR – 42563, Teriba v. Adeyemo (2010) 13 NWLR (pt.1211) 242, B.M.N.L. v. Ilemobola (2007) All FWLR (pt.379) 1340 at 1380, The Exec of Estate of Gen. Abacha v. Eke Spiff and Ors. (2009) 2 – 3 SC (pt.1139) 97.

The respondent further contended that of the three meetings held in April, 1998, and May, 1998, respectively, by the parties on formation of the contract, inclusive of Exhibit P9 dated 10.12.98, to which the judgment of the Court below referred were meetings where the contract, not invitation to treat, were discussed by the 1st appellant and the respondent; and that the silence of the appellants on key issues when they were expected to speak on the request made in Exhibit P29 constituted acceptance by conduct, therefore the appellants should not be allowed to contend contrariwise to the case they set up at the Court below that there was no contract by conduct between the respondent and the appellants based on the series of correspondence and meeting between the 1st appellant and the respondent vide Trade Bank Plc v. Chami (2003) 13 NWLR (pt.836) 158 at 219, Vaswani v. Johnson (2000) 11 NWLR 9pt.676) 582 at 588, Gwani v. Ebule (1990) 5 NWLR (pt.149) 201 at 217, Okoro v. Egbuoh (2006) 15 NWLR (pt.1001) at 23.

The respondent also contended that the word “an expression of intention to contract” used by the Court below in its judgment is merely a restatement of intention by a party to create legal relation as opposed to an agreement/contract binding in honour as the judgment of the Court below taken together demonstrated that it considered the minutes of the meetings of 16.04.98, 27.05.98, 23.0498 (Exhibit P19) and other documentary and oral evidence on part performance of the contract as well as acceptance by conduct of the contract by the 1st appellant to conclude that there was a contract by conduct between the 1st appellant and the respondent, so the submission made by the appellants on documentation of the terms of the joint venture in Exhibit P9 not being part of the decision of the Court below cannot be made an issue in the appeal vide Ogbe v. Asade (2009) 18 NWLR (pt.1172) 106.

It was further contended that discarding Exhibit P9 which formed part of the continuous transactions in the formation of the joint venture and thus continuous negotiations in the contract, there were other pieces of evidence on part performance and conduct of the appellants on which the Court below based its judgment that there was a subsisting contract by conduct between the 1st appellant and the respondent which should not be disturbed vide Section 4 of the Evidence Act 2011, (Evidence Act) Treitel on Contract 12th Edition page 19.

The respondent went on to contend that Exhibit P10(4) requested for the implementation of the joint venture presupposing an existing agreement, therefore the self-induced aborted visit of the CEO of the 1st appellant to Nigeria for the implementation of the joint venture estopped the appellants from relying on their wrong-doing to assert that the agreement had not been concluded and/or that the agreement did not exist vide Tika Tore Press v. Abina (1973) All NLR (pt.11) 244, Central London Property Trust Ltd. v. High Trees House Ltd. (1974) KB 130.

The respondent contended on damages that the 1st appellant realizing that it is a foreign company and cannot transact business in Nigeria in virtue of Section 54(1) of the Companies and Allied Matters Act (CAMA) used the 2nd appellant as a front for doing business in Nigeria and that allowing itself to be used to breach the joint venture agreement, the 2nd appellant’s veil of incorporation should be lifted to expose its use as an engine of fraud to breach the partnership agreement which should render the 2nd appellant equally liable to pay damages for the breach as held by the Court below; and, that having given reasons for the award of damages in its judgment in pages 2251 – 2252 of the record, the award of $10 million damages in the case was not on the high side and should not be disturbed vide Vibelko Ltd. v. NDIC (2006) 12 NWLR (pt.994) 295.

The respondent contended on the award of N1 Million costs that given the circumstances and age of the case and the total number of Court appearances, the said award was based on proper exercise of discretion by the Court below and should not be disturbed vide Unity Bank Plc v. Akpeji (2018) LPELR – 44995, NNPC v. Clifco (Nig.) Ltd. (2011) 10 NWLR (pt.1255) 209, Efetiroroje v. Okpalefe II (1991) 5 NWLR (pt.193) 517.

The appellants’ reply brief was filed on 24.01.20. The reply brief reiterated that the failure to deliver the judgment within the constitutional timeline of 90 days affected the recollection and understanding of the case by the Court below and thereby resulted in a miscarriage of justice; more so, the judgment was based in part on the demeanour of witnesses which was blurred with passage of time and afflicted the appreciation of their evidence by the Court below as demonstrated by the dissatisfaction of the parties by filing an appeal and a cross-appeal, respectively, against it vide Ojo and Anor. v. FRN (2008) LPELR – 5155, Ige and Anor. v. Akoju and Ors. (1994) LPELR – 1451. The reply brief then dwelt on facts in the record running from paragraphs 3.4 – 3.6 with blank space in-between to commence on paragraph 4.0 thereof together with the side-bar thereof on facts contained in Exhibit P10(28) and P12(1). The reply brief went on to state that the Court below did not make any finding on part-performance, so the learned senior counsel for the respondent shirked the duty of counsel to assist the Court by not misleading the Court and that there was no evidence of a valid contract for the doctrine of part-performance to apply to the case unlike the cases of Onayemi (supra) and Mba-Ede (supra) cited by the respondent.

The appellants cited the cases of P.I.P.C.S. Ltd. v. Vlachos (2008) 4 NWLR (pt.1076) 1 at 17 on the duty of counsel not to confuse or mislead the Court. The reply brief added that the omnibus ground of appeal argued in the appellants’ brief covered the totality of the evidence including part-performance, if any, vide Tec Engineering Co. (Nig.) Ltd. and Anor. v. Salisu (2018) LPELR – 46654.

It was also argued that the probative value of Exhibit P9, not its admissibility, was what the appellants canvassed in their brief to the effect that weight should not have been attached to Exhibit P9.

The reply brief also stated that by Exhibit P10(4) contained in page 257 of the record, the respondent conceded that the 1st appellant’s acceptance of its offer was heavily dependent on and conditional upon the meeting of the 1st appellant’s CEO and the respondent’s CEO which never happened, therefore the respondent should not be allowed to approbate and reprobate on the issue at the same time.

The reply brief added that the evidence considered holistically, as should be the case, the said proposed meeting which never occurred showed the respondent’s argument on the issue created a fresh line of argument other than contained in the judgment, so the respondent should be estopped from arguing conduct other than that determined by the Court below vide Bako and Anor. v. Audu and Anor. (2018) LPELR – 44394, INEC and Ors. v. African Democratic Congress and Ors. (2008) LPELR – 4312.

The appellants relied on the case of Rabilu v. Usman (2016) LPELR – 40233, to contend in the reply brief that acceptance cannot be based on silence.

It was also argued in the reply brief that the Court below had held in part of its judgment in page 2243, 2250 – 2251 of the record that the meeting of 16.04.18 contained in Exhibit 18 was not in itself the making of the contract per se, but an invitation or the expression of intention to contract and that the follow-up meeting on 27.05.98 buttressed the intention without any finding when the offer to contract was made and by whom.

The reply brief concluded that the Court below did not furnish reasons for the award of $10 Million damages against the appellants, especially the 2nd appellant who was not found liable, so the award is perverse and arbitrary; and that the principle of lifting the veil of incorporation is only applicable to instances of fraud or illegality which was not found to be the case by the Court below vide New Nigerian Newspaper Ltd. v. Agbomabini (2013) LPELR – 20741; consequently, the appellants urged that the appeal should be allowed and the judgment of the Court below set aside.

The additional record of appeal (the additional record) received on 03.05.18, but deemed as properly transmitted on 02.12.19, indicated that the final written addresses were adopted by the parties at the Court below on 04.05.17 and the case reserved for judgment on 07.07.17 without protest by any of the parties. Page 4 thereof indicated re-adoption of the same written addresses on 10.11.17. The effective date for computation of time for the purpose of Section 294(1) of the 1999 Constitution therefore commenced on 10.11.17, when the parties without protest re-adopted their final written addresses and judgment in the case reserved on 07.07.17.

Judgment was delivered in the case on 30.11.17 vide page 2258 of the record. Section 294(1) prescribes 90 days for delivery of judgment after final written addresses had been adopted or expected to be made by the parties. The judgment was therefore delivered outside the constitutional time-frame of 90 days prescribed by Section 294(1) of the 1999 Constitution.
Section 294(5) of the 1999 Constitution stipulates that the decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with Section 294(1) thereof unless the party complaining has established that he suffered miscarriage of justice by reason thereof.
In the instant case, the judgment of the Court below showed in pages 2242 – 2249 of the record that its decision on the liability of the appellants, particularly the 1st appellant, was majorly based on documentary evidence showing the Court below never lost grip or track of the evidence in the case as to adversely affect its evaluation of the evidence to arrive at its judgment in the case. Had the Court below failed to properly evaluate the documentary evidence the Court (Court of Appeal) sitting as an appellate Court can equally evaluate the documentary evidence and draw a conclusion on it.
Therefore, it cannot be said with measure of assurance that the appellants established that they suffered any prejudice and/or a miscarriage of justice in the case. See Section 15 of the Court of Appeal Act 2004, as amended, on the general powers of the Court to re-hear a case on appeal and the cases of Salzgitter Stahl GMBH v. Tunji Dosunmu Ind. Ltd. (2011) 11 NWLR (pt.1206) 589, Arije v. Arije and Ors. (2018) 16 NWLR (pt.1644) 67 at 83 – 84, on the powers of the Court to evaluate documentary evidence not evaluated by the trial Court. Accordingly, I respectfully reject the appellants’ contention on the issue on that ground vide the cases (supra) cited by the respondent. See also the fairly recent case of Okon v. State (2018) 12 NWLR (pt.1634) 558.

Exhibit P9 was admitted in evidence without objection. The attack on it in the appeal is on the probative value of the document, Exhibit P9. Admissibility and weight are different matters. The former is based on relevance, while the latter is based on evidential value of the Exhibit. Probative value or weight is argued on appeal. The appellants, are, accordingly, right to argue probative value of Exhibit P9 on the appeal.

The marathon cross-examination of the 2nd P.W., the star witness of the respondent, disclosed the doubt and uncertainty whether Exhibit P9 was received by the 1st appellant. Where it is alleged that a document was delivered to a person who denies receiving it, proof of delivery can be established by a dispatch book indicating receipt or evidence of dispatch by registered post or evidence of a witness credible enough that the person was served with the document vide Chemiron International Ltd. v. Stabilion Visinoni Ltd. (2018) 17 NWLR (pt.1647) 62 at 78 following Nlewedim v. Uduma (1995) 6 NWLR (pt.402) 383, Agbaje v. Fashola (2008) 6 NWLR (pt.1082) 90.

The respondent did not establish receipt of the document contained in Exhibit P9 by the 1st appellant by any of the methods stated in the above cases. Exhibit P9 therefore has no weight as it was neither received by nor assented to by the 1st appellant. Since Exhibit P28 is unsigned, it too has no weight or probative value vide Omega Bank Plc v. O.B.C. Ltd. (2005) 8 NWLR (PT.928) 547. With the death wounds on both Exhibits P9 and P28, I resolve that the two documents containing the feasibility study made by the respondent for the joint venture project cannot be relied upon for the purpose of establishing the existence of the joint venture agreement between the respondent and the 1st appellant. The said Exhibits are hereby discarded for lacking in probative value.

The appellants argued findings of fact in the appellants’ brief of argument. Ground 6 of the notice of appeal which is contained in page 2263 of the record complained that the decision of the Court below is against the weight of evidence. Although the general or omnibus ground of appeal covers the evaluation of evidence, it does not extend to arguments on specific findings of fact made by a Trial Court, unless there is a ground of appeal on specific findings before arguments on it will be entertained on appeal vide Chiadi v. Aggo (2018) 2 NWLR (pt.1603) 175.

The 1st appellant’s letter to the respondent dated 29.09.97, contained in page 136 of the record, requested the respondent to obtain relevant information and send the information to the 1st appellant on the position of retail and wholesale business in Nigeria and whether foreign companies need to create a Nigerian subsidiary in order to do business in Nigeria and, also, information on the procedure to obtain an investment licence for such enterprise or trade in Nigeria. The said letter was sequel to the visit and meeting of the respondent with accredited representatives of the 1st appellant in South Africa on 20.09.97.

The respondent obtained the information to the effect that for a foreign company to operate in Nigeria, a Nigerian subsidiary of such company must be registered in Nigeria on condition that Nigerians have to be on the board of the subsidiary company, but that what is usually advisable is a joint venture while a limited liability company required only a licence to operate in Nigeria and that the relevant information on the retail and wholesale business environment in Nigeria seemed wide, therefore the 1st appellant should specify the information needed vide the letter dated 14.04.98, which is contained in page 137 of the record.

A feasibility study of the joint venture dated December, 1998, is contained in pages 138 – 145 of the record; the same feasibility study can be found in pages 1650 – 1661 of the record; while the request for information in respect of joint venture investment with foreign companies in Nigeria is contained in pages 146 – 147 of the record.

The minutes of the meeting between the 1st appellant and the respondent in South Africa dated 16.04.98, is contained in pages 148 – 149 of the record in which both sides disclosed their areas of interest in food distribution industry and places of operation with the 1st appellant expressing interest in doing business in Nigeria contingent upon the outcome of the “exploratory” visit of the 1st appellant to Nigeria towards the end of the month of May, 1998, which happened with a Mr. Hennes Schreuder and a Mr. Frieddie Niemand representing the 1st appellant vide the minutes of the meeting contained in pages 150 – 154 of the record.

Sequel to the said meeting, the 1st appellant and the respondent met in Nigeria vide the minutes of their meeting contained in pages 150 – 154 of the record. The 1st appellant’s lead representative, Mr. Hennes or Johannes Schreuder, appreciated the meeting as it was to “further the discussions and implementation of the proposed AIC/Shoprite Holding Ltd. Joint Venture Company in Nigeria vide page 151 paragraph 5(iv) thereof; Mr. Hennes Schreuder referred to the meeting of 16.04.98 in South Africa between the 1st appellant and the respondent as a success and that the 1st appellant “wants to forge ahead with the joint venture if this exploratory visit confirms the viability of Shoprite Checkers Operations in Nigeria” vide page 151 paragraph 5(v) thereof.

It was at the said meeting of 27.05.98 contained in pages 150 – 154 of the record that the respondent submitted a set of answers to the 1st appellant’s checklist which were contained in nine documents listed in page 153 of the record. This was in compliance with the request made by the 1st appellant to the respondent for information on the retail and wholesale business environment in Nigeria. The minutes reflected on page 154 of the record that the 1st appellant gave the 1st respondent a Site Evaluation Criteria Sheet for study and use during site visits to evaluate each site and a booklet showing the schematic layout of the 1st appellant’s investment in Zambia and the Mozambique.

The meeting then resolved to contact reputable Clearing Agencies to facilitate prompt clearing of containers at the ports; and for bonded ware-housing to be investigated, though the concept was very new to Nigeria. The respondent also indicated its readiness to invite other good and potential investors in Nigeria who are compatible with the 1st appellant to join the venture. The meeting in Nigeria was on the initiative and at the instance of the respondent vide the letter contained in pages 163 – 164 of the record.

Mr. Schreuder is recorded in the minutes of the meeting between the 1st appellant and the respondent with the South African High Commissioner in Nigeria at his Excellency’s residence in Ikoyi, Lagos, on 27.05.98 contained in page 155 of the record as expressing that the set of documents prepared by the respondent as answers to the 1st appellant’s Investment Application Checklist on Nigeria were “found very useful”.

A meeting of both the 1st appellant and the respondent with Cooper and Lybrand (C and L) Chartered Accountants at Ikeja in Lagos on 27.05.98 contained in pages 158 – 159 of the record at which Mr. Schreuder informed the third party, (C and L), that although he had initially intended to have a long meeting with it (C and L), the respondent had provided a lot of documents with answers to the questions he wanted to raise with C and L and then requested C and L to be the 1st appellant’s consultant in the joint venture discussed with the respondent towards an early take-off of the joint venture to which the respondent did not oppose and even gave C and L a copy of the respondent’s prepared answers to the Investment Application List prepared by the respondent which had earlier been given to the 1st appellant during the maiden meeting in the morning of the same day at Victoria Island Lagos. The respondent is recorded in paragraph 5(vii) of the minutes of the meeting at Ikeja, Exhibit P, contained in page 158 of the record, inviting C and L to a meeting with the respondent in Victoria Island, Lagos, for further discussions on the proposed joint venture with the 1st appellant expected to be in attendance.

Pages 215 – 216 of the record contain the letter dated 29.05.98 on report of the survey and choice of site for the joint venture, said to have been done at the instance of the 1st appellant and the respondent; while pages 223 – 224 thereof contain the report of the survey plan and successful negotiations to obtain lease of property for 99 years for the joint venture with the rider – “we hope you (1st appellant) will grant the necessary approvals and initiate actions to execute the Head of Agreement as soon as possible to facilitate an early take off of the project”. Pages 217 – 238 of the record contain the processing of the application for the lease.

The series of correspondence (supra) were considered together in amalgamated form by the Court below in a fairly broad manner without being too astute or subtle and in consonance with the literal or grammatical method of interpretation of documents to give effect to what the parties intended to achieve by the said series of correspondence, taking into account the stand-point that when negotiations are in progress between parties intending to enter into a contract the whole correspondence comprising the negotiations are to be considered together alongside surrounding circumstances to determine whether a contract was actually made between the parties vide Omega Bank (Nig.) Plc v. O.B.C. Ltd. (supra) and the cases (supra) cited by the respondent on the issue.
The decision of the Court below that there was an intention to enter into legal relation with respect to the proposed joint venture between the 1st appellant and the respondent was based on the series of correspondence tendered and admitted in evidence as Exhibits in the case.
I agree and endorse the approach adopted by the Court below on the construction of the series of correspondence exchanged between the parties to arrive at its decision in its judgment that a contract by conduct was struck by the 1st appellant and the respondent to operate the joint or partnership venture in question.
From the series of correspondence (supra), and the registration of Shoprite – A.I.C. Ltd., Exhibit 15, by the respondent without objection by the respondent, it is obvious that the respondent and the 1st appellant were, by conduct, agreed on a joint venture. The 1st appellant had, by the correspondence, admitted the good use of the business information the respondent had given it for the joint venture and finally the siting of the same business venture in one of the places (Lekki, Lagos State) which was one of the sites the respondent had earmarked or given to the 1st appellant for the joint venture as part of the respondent’s input in the quest for the joint venture.
One of the video clips, Exhibit P2(B), was played in the open Court at the Court below in the presence of the 2nd P.W. who maintained consistently that from the video clip, Exhibit P2(B), land was offered by the respondent to the 1st appellant for the joint venture which was the core of the meetings between the respondent and the 1st appellant.
From the totality of the pieces of documentary evidence it stands out and I so agree with the Court below in its judgment contained in pages 2240 – 2250 of the record that the respondent opened the eyes of the 1st appellant (so to say) on business prospects and investment opportunities in Nigeria during their several meetings; the respondent offered to partner with the 1st appellant on joint business of opening and operating Shoprite retail market in Nigeria. To that end the representatives of the 1st appellant visited Lagos, Nigeria, and inspected possible locations of the retail outlets for the partnership project. They were satisfied with what they saw with respect to business opportunities in Nigeria. The representatives of the 1st appellant then went back to South Africa and wrote positive report on the business atmosphere in Nigeria as prelude to blazing the trail for the implementation or execution of joint venture between them.
Unexpectedly, it was after the positive report that the 1st appellant abandoned the implementation of the joint venture and went behind the back of the respondent to form the 2nd appellant to operate the Shoprite outlet in the location identified by the respondent for the joint venture. It turned out that the same members of the 1st appellant emerged as major shareholder with the 2nd appellant and that the 1st appellant used the 2nd appellant as its surrogate to abandon the take-off of the joint venture.
The conduct of the 1st appellant in the relevant correspondence (supra) was not averse to the partnership venture between it and the respondent which supplied the assurance to the respondent that the joint venture had not been rejected by the 1st appellant. The Court below held in conclusion on the issue in its judgment in page 2248 of the record that the various correspondence tendered in evidence showed there was intention to create legal relations between the 1st appellant and the respondent.
​There was no finding or pronouncement on part performance by the Court below in its judgment, so the issue of part performance is redundant and is hereby jettisoned. I think it is trite that a contract can be formed by conduct where the minds of the contracting parties are considered by what is expressed in their correspondence together with the surrounding circumstances that they agreed to the contract without the parties executing a formal contract vide Olowu v. Building Stock Ltd. and Ors. (2018) 1 NWLR (pt.1601) 343 at 436.
There is evidence in the record that the 1st appellant allowed the respondent to search for a suitable site for the partnership project and to apply for a lease of land for the partnership project. These involved time, energy and resources or money. The respondent carried out these assignment. The Court below held that the conduct of the parties demonstrated intention to enter into a legal relation in respect of the partnership project. I agree.
​Because a reasonable person cannot consent for another to take the trouble, time and expense to search for a site for a project both of them intend to operate a business venture unless his mind is tuned to implementing the partnership project. One cannot therefore start sourcing or scouting for property to operate a business without first agreeing to operate the business: A site cannot be secured for the fun of it (so to speak). It is not done in vacuo. It is done when there is prior understanding between the parties to use it for the purpose they had agreed.
It is assuredly presumed that businessmen are considered to be prudent and reasonable. They do not go on a wild goose chase, neither do they fancy any jamboree or frivolity. Businessmen are therefore deemed to be serious minded and focused. By not protesting that the respondent should search and secure a site for the siting of the partnership business and to, also, do other things associated with it as stated in the judgment of the Court below, the 1st appellant was taken to have had the intention to enter into legal relation with the respondent by conduct with respect to the partnership venture, and I so hold vide Mudiaga Odje v. YPS (Nig.) Ltd. (supra).
It has to be stressed that most successful businesses are not merely based on a more efficient way of supplying existing goods but arise out of exploration or discovery of viable outlets to market the goods which was what the respondent did for the 1st appellant to have its business hold and exposure in Nigeria. The said role of the respondent was therefore crucial to the entry of the 1st appellant in Nigeria for commerce.
Accordingly, I uphold and affirm the finding made by the Court below that from the circumstances of the case as disclosed by the evidence before it an intention to enter into legal relation for the operation of a partnership venture was struck between the 1st appellant and the respondent by the conduct of both the 1st appellant and the respondent.
In any event, assuming without agreeing that there was no contract by conduct, the Supreme Court case of Trenco (Nigeria) Ltd. v. African Real Estate and Investment Co. Ltd. and Anor. (1978) 4 S.C. 9, is instructive. In that case the appellant had expended money in clearing a site and commencing construction thereon pursuant to a letter, Exhibit 1, from the 1st respondent to construct a new hotel building for guests for the oncoming independence celebration of Nigeria in 1960. While work was in progress on the site, the 1st respondent wrote to the appellant to stop work because the 1st respondent was no longer wishing to go on with the contract because there was doubt as to the genuiness of title to the land. The appellant sued for breach of contract. The trial Court dismissed the action.
The Supreme Court held on appeal that the appellant had made out a case in equity against the 1st respondent in these unedited words –
“We have held that Exhibit I is not properly a contract between the plaintiff and the 1st defendant companies. But does the matter rest at that. Obviously not…”. Exhibit I … Commissioned the plaintiffs to act with dispatch in constructing the new Hotel … Relying on this, the plaintiffs proceeded with the work … expending money… we think in circumstances of this case certain equities must enure to the benefit of the plaintiffs…
For this Court to allow the 1st defendant respondent to get away with it would amount to yielding to what amounts to constructive fraud which term is clearly explained in Nocton v. Lord Ashburton AC. 912. It is a case in which this Court, acting as a Court of conscience, must prevent the plaintiff company from suffering pecuniary injury against the dictates of conscience …”
Since the 1st appellant had by its conduct shown an assurance of intention or representation to enter into legal relation with the respondent with respect to the partnership venture and the respondent acted upon it, the 1st appellant cannot afterward be allowed to retreat or resile from the promise of assurance. The 1st appellant must accept its legal relations as modified by it even though it is not supported in point of law by any consideration, but only by its word or conduct using the yardstick of a reasonable man vide Duncan Maritime Ventures Nigeria Ltd. v. Nigeria Ports Authority (2019) 1 NWLR (pt.1652) 163. See also B.F.I.G. v. B.P.E. (supra) at 240 cited by the respondent.
Accordingly, by allowing the respondent to expend time, energy and resources in the partnership endeavour and altering the respondent’s position in the belief based on the impression created by the 1st appellant of probability of both of them working together in partnership, good conscience will not allow the 1st appellant to avoid liability for altering the position of the respondent.
Consequently, even if there was no binding contract by conduct between the 1st appellant and the respondent the dictates of good conscience grounded the liability of the 1st appellant. The appeal of the 1st appellant on liability therefore lacks merit.

General damages are presumed by law to be the direct, natural or probable consequence of the act complained of but the quantification thereof is at the discretion of the Court vide Ajigbotosho v. Reynolds Construction Co. Ltd. (2019) 3 NWLR (pt.1659) 287 following the cases of Ijebu-Ode Local Government v. Adedeji Balogun and Co. Ltd. (1991) 1 NWLR (pt.166) 136, Eseigbe v. Agholor (1993) 9 NWLR (pt.316) 128, Badmus v. Abegunde (1999) 11 NWLR (pt.627) 493.
In the over a century and half case of Hadley v. Baxendale (1843 – 60) All E.R. Rep. 461, it happened that a mill in Gloucester ground to a halt because of a cracked crankshaft. To get a new one made, it was necessary to send the old one, as a model, to the manufacturer of the mill’s steam engine, in Greenwich. The miller, the plaintiff, sent one of his workers to a carrier’s (the defendant) office to see how long the delivery would take. The worker told the carrier’s clerk that the mill was stopped, and that the shaft must be sent immediately. The clerk assured that if the shaft was received by noon, it would be delivered the next day. The miller presented the shaft to the carrier before noon the next day and paid the fee to have it transported.
Because of the carrier’s neglect the shaft was delivered several days later, with the result that several additional days passed before the mill got back into service. The miller sought as damages for breach of the shipping contract, his lost profits for those days, which were of course many times what the carrier had received as the shipping charge. The carrier said he was not liable for such remote consequences.
The English Court of Exchequer decided that the carrier (defendant) was right, reasoning that in a suit for breach of contract not all damages suffered because of the breach can be recovered. But only damages that could have been fairly and reasonably contemplated by the parties to the contract when they made the contract. It is curious that the defendant, the carrier won.
​It appears the opinion of the Court overlooked the fact that the carrier was informed that the mill was stopped and that it must have been known to the carrier who told the miller’s clerk that the crankshaft could be delivered on the appointed date agreed to by the parties as it was clear to the carrier’s clerk that restarting the mill was the reason for the haste, and that profits will be lost while the mill was idle.
The carrier having known through the miller that the crankshaft was needed to restart the operation of the engine which was operating for profit, the such damages for late delivery of the crankshaft were fairly and reasonably contemplated by both parties when the contract was made therefore the miller (plaintiff) not the carrier (the defendant) should have won. It is curious that the defendant, the carrier, won. (Culled from ‘A Matter of Interpretation’ by Antonin Scalia (New Edition) pages 5 – 7).
Be that as it may, the principle for the award of damages for a breach of contract enunciated in Hadley v. Baxendale (supra) has been followed religiously or consistently by the Courts in matters of a breach of contract.
In summation, the rule on award of damages for breach of contract laid down in the case of Hadley v. Baxendale (supra) therefore pertains to (i) damages fairly and reasonably considered by the parties to the making of the contract that naturally and in the usual course of things arose from the breach of contract; (ii) damages as may reasonably supposed to have been in the contract itself; (iii) damages such as may reasonably be supposed to be in the contemplation of both parties at the time they made the contract as the probable result of the breach.
In other words, general damages are such as the law presumes to be the direct, natural or probable consequence of the act complained of. A claim of general damages means that the claimant cannot prove particular items, but can prove that there has been pecuniary loss vide Onyiorah v. Onyiorah and Ors. (2019) 15 NWLR (pt.1695) 227 at 247 – 248.
In contract therefore general damages are those that the law presumes or infers flow from the type of breach complained of as compensation for the loss that was occasioned by the breach as reasonably expected by the parties at the time of making the contract. It is also called direct damages or necessary damages.

An Appellate Court cannot substitute a figure of its own for the one awarded by the Court below merely because it would have awarded a different figure if it had determined the case as the Court of first instance or trial Court. Before an Appellate Court can justifiably intervene, it must be satisfied that either the Court below, in assessing damages, applied a wrong principle of law such as taking into consideration irrelevant factor or not taking into account some relevant factor; or that the amount awarded is either so ridiculously high or so ridiculously low that it might have been a wholly erroneous estimate of the damages awarded as to amount to wrongful exercise of discretion by the Court below in awarding the damages complained of vide Ojini v. Ogo Oluwa Motors Nigeria Ltd. (1998) 1 NWLR (pt.534) 353 at 362 – 363 following Flint v. Lovell (1935) KB 354 at 360, Shodipo and Co. Ltd. v. The Daily Times of Nigeria Ltd.(1972) 11 SC 69 at 77, Uwa Printers Nig. Ltd. v. Investment Trust Co. Ltd. (1988) 5 NWLR (pt.92) 110, Obere v. Board of Management, Eku Baptist Hospital (1978) 6 – 7 SC 15, Ogaba v. Olatusin (1961) 2 SCNLR 13, Weidemann and Walters (Nig.) Ltd. v. Oluwa In Re: Intra Motors (Nig.) Ltd. (1968) 1 All NLR 383.
Having regard to flagrant breach of the contract by the 1st appellant, the Court below rightly awarded general damages to the respondent vide Miss Promise Mekwunye v. Emirates Airlines (2019) 9 NWLR (pt.1677) 191 following Ativie v. Kabelmetal Nig. Ltd. (2008) 10 NWLR (pt.1095) 399; Wahabi v. Omonuwa (1976) LPELR – 3469.
In making the award of damages, it is relevant to bear in mind galloping inflation or the fluctuating value of money or the consistent depreciation of the value of the Naira which appeared to have been obvious at the time of judgment vide Ighreriniovo v. S.C.C. Nigeria Ltd. and Ors. (2013) 10 NWLR (pt.1361) 138 at 153 – 154 following Eze v. Lawal (1997) 2 NWLR (pt.487) 333, Ifeanyi Chukwu Osondu Co. Ltd. v. Akhigbe (1999) 11 NWLR (pt.625) 1, Ugo v. Okafor (1996) 3 NWLR (pt.438) 542, Kalu v. Mbuko (1988) 3 NWLR (pt.80) 86.
I do not therefore find any convincing basis to disturb the award of $10 Million damages videZik Press Ltd. v. Alvan Ikoku (1951) 13 W.A.C.A 188 at 189 – 190.

Order 49 Rule (1) and (2) of the rules of the Court below stipulates the principle to be observed in fixing costs as follows –
“(1) In fixing the amount of costs, the principle to be observed is that the party who is in the right is to be indemnified for the expenses to which he has been necessarily put in the course of proceedings, as well as compensation for his time and effort in coming to Court. Such expenses shall include:
(a) The cost of legal representation and assistance of the successful party to the extent that the Judge determines that the amount of such cost is reasonable;
(b) The travel and other expenses of parties and witnesses to the extent that the Judge determines that the amount of such expenses is reasonable, and such other expenses that the Judge determines ought to be recovered, having regard to the circumstances of the case;
(2) When costs are ordered to be paid, the amount of such costs shall, if practicable, be summarily determined by the Judge at the time of delivering the judgment or making the order.”
The rules of the Court below (supra) entitled it to determine the quantum of costs, summarily, in its judgment. When something is to be done summarily it is meant to be done immediately or instantly or on the spot/spur of the moment without paying attention to the normal process that should be followed but confining oneself to the main points of the thing to be done, not the details. (Oxford Advanced Learner’s Dictionary 6th Edition 1200).
The general principle therefore is that costs which follow the event should be awarded to a successful party (unless the successful party misbehaved in the course of the proceedings); and that the award of costs being discretionary, the Court awarding the costs must exercise the discretion judicially and judiciously. See the case of N.N.P.C. v. Clifco Nigeria Ltd. (2011) 10 NWLR (pt.1255) 209 at 234- 235 and the case of G.K.F. Investment Nigeria Limited v. Nigeria Telecommunication Plc (2009) 7 S.C.N.J. 92 at 119 – 112 following the cases of The Queen v. The Governor in Council, Western Region, Ex Parte Kasalu Adenaiya (1962) 1 A.N.L.R. 300, (1962) 1 S.C.L.R. 442; Lawal v Ijale (1967) 5 N.S.C.C. 94; Obayagbona v. Obazee (1972) 5 S.C. 241; Mazin Engineering Ltd. v. Tower Aluminum (Nig.) Ltd. (1993) 6 S.C.N.J. (pt.II) 176 at 190, Union Bank of Nigeria Ltd. & Anor. v. Nwaokolo (1995) 6 N.W.L.R. (pt.400) 127 at 149; (1995) 4 S.C.N.J. 93 and Mrs. F. K. Douglas v. Dr.M.C.A. Peterside (1994) 3 N.W.L.R. (pt.330) 37 at 52 CA.
Looking at the record, as I am entitled to do, it is clear that numerous appearance were made and some witnesses taken together with the tendering of several documents in evidence putting the respondent to expenses which the Court below was deemed and/or reasonably presumed to have had in mind by its recourse to the record vis-à-vis the backdrop of the modalities/parameters on the award of costs enumerated in Order 49 Rule (1) of the rules of the Court below to award the N1 million costs in the circumstances of the case. So, in my considered opinion, the Court below was right in deciding the issue of costs summarily in its judgment in accordance with Order 49 rule (1) and (2) of its own rules. See Mekwunye v. Emirates Airlines (2019) 9 NWLR (pt.1677) 191 at 235 and 242.
I think the Court below exercised its discretion to award costs judiciously and judicially. I do not, on that basis, find sufficient reason to interfere with the said discretion and would not disturb the N1 million costs awarded in the case against the 1st appellant.

It is clear from the evidence in the record that the 2nd appellant came into existence in 2004. The formation of the contract by conduct occurred when the legal existence of the 2nd appellant was yet to materialize. It is clear that the 2nd appellant was sued jointly and severally with the 1st appellant. Had the 2nd appellant been an agent of the 1st appellant, it could not have been sued in the case, because an agent of a disclosed principal is not liable and/or answerable for acts done for the disclosed principal. The 2nd appellant was therefore sued as an independent entity over a dispute that happened when it was not in existence.

I think there are two dimensions to a civil action which are liability and damages with additional consequential reliefs like permanent injunction. The first hurdle to scale over is the issue of liability. The consequence of settling the issue of liability is the destination to the award of damages and/or other consequential reliefs as the next and final stage of raising the curtain on the case (so to speak). It follows that without liability the award of damages and/or consequential order(s) cannot arise.
The gamut of the statement of claim did not aver any wrong or breach against the 2nd appellant. It is trite that parties are bound by their pleadings vide Emegokwue v. Okadigbo (1973) 4 S.C. 113 or (1973) NMLR 192. It follows that without pleading and proving by evidence the liability of the 2nd appellant, the Court below could not have found the 2nd appellant liable for a breach of contract. For it was held in the case of Westminister Dredging (Nig.) Ltd. v. Oyibo (1992) 5 NWLR (pt.239) 77 at 101 that an agreement between two parties is not binding on a third party not party to the agreement. Therefore the Court below could not have found the 2nd appellant liable in the circumstances.
Accordingly, I agree with the appellants that since the Court below did not find the 2nd appellant liable, the award of damages and costs against the 2nd appellant cannot stand. The Court below was therefore wrong to have awarded damages against the 2nd appellant. I would allow the appeal in part on this issue and set aside the award of damages and costs against the 2nd appellant; while the appeal of the 1st appellant is dismissed for lacking in merit and the decision of the Court below as it affects the 1st appellant is hereby affirmed. CROSS-APPEAL
The respondent’s brief incorporated the cross-appellant’s brief in respect of the cross-appeal. The cross-respondents’ brief was filed on 10.02.20. It contained a notice of preliminary objection attacking issue 6 that it does not arise from grounds 2, 3, 4, 5 and 6 of cross-appeal dated 27th February, 2018; that no argument was made in support of ground 6 of the notice of appeal in the cross-appellant’s brief; nor did the cross-appellant formulate an issue to cover ground 7 of the notice of cross-appeal.

The cross-respondents argued that the issue 6 formulated by the cross-appellant challenged only the adequacy or inadequacy of the $10 million as the basis for the Court below to have declined the award of the remedy of specific performance which does not pertain to or arise from grounds 2 – 6 of the notice of cross-appeal, therefore the arguments made under issue 6 tied to grounds 2 – 6 of the notice of cross-appeal ought not to have been made and should be struck out for being incompetent vide Adigun v. Ayinde (1993) NWLR (pt.313) 516, Amadi v. A.-G., Imo State (2017) 11 NWLR (pt.1575) 92 at 208, Hadejia Jama’are River Basin Development Authority v. Chimande Nigeria Ltd. (2016) LPELR – 40202, Illiyasu v. Shuwaki (2009) LPELR – 4305, NPA v. Okereke (2016) LPELR, Ido/Osi Local Govt. v. Aluko (2007) All FWLR (pt.352) 1807 at 1815 – 1816.

The cross-respondents also argued that ground 6 of the notice of cross-appeal was not argued under any of the issues for determination in the cross-appeal and should be deemed abandoned and struck out in consequence alongside ground 7 thereof on the same premise vide Ononye and Ors. v. Chukwuma (2005) LPELR – 7526, Khamofu v. Standard Chartered Bank (Nig.) Ltd. (2016) LPELR – 41497.

The cross-appellant filed a cross-appellants’ reply brief on 09.03.20 which was deemed as properly filed on 12.03.20. Relying on the cases of Nwaolisah v. Nwabufoh (2011) 14 NWLR (pt.1286) 641, NEPA v. Ango (2001) 15 NWLR (pt.737) 627 at 645 – 646, Garba v. Mohammed (2016) 16 NWLR (pt.1537) 114, the cross-appellant argued that since the preliminary objection is on some of the grounds of appeal it should have been raised by motion on notice as its success would not dispose of the whole appeal, therefore it should be struck out on ground of incompetence.

The cross-appellant argued, in the alternative, that issue 6 encompassed grounds 2 – 6 of the notice of cross-appeal to the effect that the Court below failed to take cognizance of the various heads of claim aside the $10 million damages it awarded in its judgment showing the issue for determination covered grounds 2 – 6 of the notice of cross-appeal as an issue for determination can embrace more than one ground of appeal vide Agbaso v. Speaker, Imo State House of Assembly and Ors. (2014) LPELR – 24298, Eneji and Anor. v. Agaji and Ors. (2012) LPELR – 9239.

It was further argued that the grounds of appeal in question were grouped under the said issue for determination which was formulated in direct, concise and succinct manner and argued as such in the brief as required by law vide Shell Petroleum Dev. Co. of Nigeria Ltd v. Federal Board of Inland Revenue (1996) 8 NWLR (pt.466) 256, Ogbonnaya v. FBN Plc (2015) LPELR – 24731, Ports and Cargo Handling Services Co. Ltd. and Anor. v. Migfo Nigeria Ltd. and Anor. (2012) 18 NWLR (pt.1333) 555 at 577; and that having argued ground 6 of the notice of cross-appeal under issue 6 of the issues for determination, it cannot be contended that ground 6 of the notice of appeal was abandoned by the cross-appellant.

Although it was irregular to attack some of the grounds of the cross-appeal by preliminary objection instead of by way of motion on notice, the dictates of substantial justice will prevail for the preliminary objection, for the preliminary objection to be determined by the Court as it was also responded to by the cross-appellant vide KLM Royal Dutch Airlines v. Aloma (2018) 1 NWLR (pt.1601) 473 at 490 – 491.

Having read the cross-appellant’s reply brief and the grounds of appeal in response to the notice of preliminary objection to some aspects of the cross-appeal, I agree with the cross-appellant’s arguments (supra) on the issue and adopt them to hold that the said preliminary objection does not hold ground and is hereby not countenanced save ground 7 of the notice of cross-appeal which was not covered by any issue for determination and is hereby struck out.

It was argued in the cross-appellant’s brief that the relief of specific performance was claimed by the respondent as a substantive relief which the Court below ought to have considered first before consideration of damages and being a rare contract, unlike an agreement to purchase goods, the equitable remedy of specific performance should have been granted by the Court below instead of damages in form of nominal damages which cannot be adequate compensation for breach of the contract vide BFIG Corp. v. BPE (supra) at 244, 247, Seven Network Operations Ltd. v. Warburton (No.2) 2011 NSWC 386, Covell Limpton & Folder: Principles of Remedies, 5th Edition page 24, Beswick v. Beswick (1968) AC 58 reviewed in Trietal on Contracts, 12th Ed. 1103 paragraph 21.02, Mustapha v. Abubakar (2010) LPELR – 4567, Okonkwo v. Okonkwo (1998) LPELR – 2487.

The cross-appellant contended on damages that the cross-appellant’s evidence in support of loss of profit i.e. 50% of USD 92,305,030.00 was neither rebutted nor challenged under cross-examination, nor was it shown to be incredible, therefore the Court below arrived at a perverse decision when it held that the cross-appellant did not lead evidence to arrive at the amount claimed as loss of profit when CW2 gave oral evidence on the issue by adopting the witness statement on oath, Exhibit P3, and the feasibility study report showing the projection of the profit vide Ijebu-Ode L.G. v. Balogun (1991) 1 NWLR (pt.166) at 159.

The cross-appellant also contended that there was no justification for the refusal to award the other heads of damages on the basis given by the Court below that it would amount to double compensation when the legs of claim are distinct vide Ijebu-Ode L.G. (supra); that the manner of the breach of contract committed by the cross-respondents was injurious and insulting to the cross-appellant’s feelings, good-will/reputation as to justify at least the award of aggravated damages together with exemplary damages vide Odiba v. Azege (1998) 9 NWLR (pt.566) 370 at 386, University of Calabar v. Oji (2011) (?) 5069, Odogu v. A.-G. Federation (1996) 6 NWLR (pt.456) 508.

It was further contended by the cross-appellant that having regard to the fact that the expenses comprising the monetary claim of USD220,906.66 and N13,601,201.63k were incurred by the cross-appellant in connection with the contract, the Court below was wrong to refuse to the award the damages in question on the faulty reasoning that they were incurred pre-formation of the contract when they were recoverable on the footing of restitution-in-integrum and were, also, exclusively/wholly incurred in connection with the contract; consequently, the cross-appellant urged that the cross-appeal should be allowed.

The cross-respondents contended in respect of the cross-appeal that the reliefs of specific performance and damages were not claimed by the cross-appellant in the alternative at the Court below; that specific performance as an equitable remedy may be ordered where damages are considered and found inadequate, and that even in cases damages are not claimed the Court can award damages in lieu of specific performance vide International Textiles Industries Nigeria Ltd. v. Dr. Aderemi and Ors. (1999) 8 NWLR (pt.614) 268, Universal Vulcanizing (Nigeria) Ltd. v. Ijesha United Trading and Transport and Ors. (1992) LPELR – 3415.

It was also argued that the factual basis upon which the cross-appellant relied for specific performance was not borne out on the evidence before the Court below as available evidence showed the 2nd cross-respondent operates Shoprite outlet as a tenant of Commonwealth Development Corporation (CDC) at The Palm Mall Lekki, a site developed by the CDC.

The cross-respondents also argued that the features of privity of contract involving a third party in addition to nominal damages not being adequate in lieu of the remedy for specific performance of the contract as in the case of Beswick v. Beswick (supra) are absent in the present case; consequently, the cross-respondents contended that Beswick v. Beswick (supra) does not represent Nigerian Law on the issue and that the case of Lar v. Stirling Astaldi (Nig.) Ltd. (1977) LPELR – 1755 to the effect that a party who did not establish loss or damage would be entitled to nominal damages for breach of contract should apply citing in further support the case SPDC v. Nwabueze (2013) LPELR – 21178; and that, that would meet the justice of the case without an order of specific performance by the Court as damages cannot be awarded in addition to specific performance when damages are found to be adequate remedy for the breach of contract complained of vide Ezenwa v. Oko and Ors. (2008) LPELR – 1206.

It was also argued that since there is no evidence that the cross-respondents received Exhibit P9, the feasibility report, the said Exhibit cannot form the basis of any joint venture agreement or project between the parties.

It was further argued that a decree of specific performance will work hardship on the 2nd cross-respondent who was not in existence at the time the cross-appellant alleged a contract had been concluded between it and the 1st cross-respondent and may thus cause liability for the cross-respondents on the principle of accrued third party rights and contractual obligations, especially as it is undesirable to order for specific performance of a contract that would burden parties unwilling to work together with a partnership agreement to do so vide Azinge v. Anene (1974) 1 All Comm. 160, Chitty on Contracts 33rd ed. (2018) para 37 – 39 citing England v. Curling (1844) 8 Beav. 129 at 137, Co-operative Insurance Society Ltd. v. Argyll Stores (1997) 3 All ER 297 at 305.

The cross-respondents also contended that reckoned with the statement of claim where the cross-appellant alleged the 1st cross-respondent breached the terms of the “purported agreement”, the 2nd cross-respondent who was incorporated in 2004, while the action was filed in 2010, a period of 5 years after the alleged breach occurred in 2005, showed the cross-appellant did not bring the action for specific performance promptly as even a delay of one year could bar the remedy of specific performance vide Okonkwo v. Okonkwo and Ors. (1998) LPELR – 2487, Ibeziako v. Abutu (1959) 3 ENLR 24.

The cross-respondents further contended that since the cross-appellant catagorised the damages claimed in the action under special, exemplary, punitive and aggravated damages but was unable to establish the same, specific performance could not be granted as a remedy in the case as specific performance is an equitable and discretionary remedy which is expected to be used with caution where damages cannot be assessed as adequate compensation for the breach of contract complained of vide Funtua v. Ingawa (2016) LPELR – 41166, Oshafunmi and Anor. v. Adepoju and Anor. (2014) LPELR – 23073.

The cross-respondents contended that in the light of the evidence before the Court below showing the cross-respondents were not aware of Exhibit P9 until the action was instituted at the Court below, the contents of Exhibit P9 could not have been in reasonable contemplation of the cross-appellant and thus not furnish ground for an award of damages for loss of anticipated profit; more so, the said head of claim was not proved strictly or by cogent and credible evidence of particular losses which are known and accurately measured vide Stephenson Standard Company Ltd. v. Yifa Nigeria Ltd. (2012) LPELR – 9707.

The cross-respondents contended that aggravated and exemplary damages are available only in tort and in cases expressly authorised by statute or in cases of oppressive, arbitrary or unconstitutional action by servants of government or where the defendant’s conduct has been calculated to make a profit for himself which may well exceed the compensation payable to a plaintiff which were not available in the instant case; consequently, the cross-respondents submitted that the Court below was right not to award exemplary and aggravated damages in the case vide Allied Bank (Nigeria) Ltd. v. Akubueze (1997) 6 NWLR (pt.509) at 411, Marine Management Associates Inc. & Anor. v. National Maritime Authority (2012) 12 S.C. (pt.11) 141 at 160.

The cross-respondents contended that a party adequately compensated under one head of damages cannot be compensated over the same set of facts as to do so would amount to double compensation, therefore the Court below could not have awarded any additional damages for the same wrong vide A.E. Bright Futures Motors (Nig.) Ltd. and Anor. v. Chizoba (2017) LPELR – 42828.

The cross-respondents contended that since the 2nd cross-respondent has distinct corporate personality there is no legal justification to lift the veil of incorporation of either of the cross-respondents in order to ascribe liability to both of them; and that the cross-appellant did not provide evidence for the expenses allegedly incurred by it, therefore the Court below was right not to award damages on the said heads of damages as what the cross-appellant would have been entitled to is nominal damages had it established a breach of the contract by the cross-respondents upon which the cross-respondents urged that the cross-appeal should be dismissed.

The cross-appellant, abandoned the arguments dealing with post-judgment interest contained in paragraphs 2.17 and 2.18 of the cross-appellants’ reply brief in oral argument, but argued in the reply brief that the Court below should have awarded pre-judgment interest on equitable ground vide Silverbird Galleria v. Niyod Construction (Nig.) Ltd. (2015) LPELR – 25847, Shedowo v. A.G., Lagos State (2019) LPELR – 46886.

The cross-appellant further contended that the relief of specific performance, whether claimed in the alternative, or concurrently, ought to have been considered first by the Court below, not otherwise vide Nkana v. Hundeyin (2018) LPELR – 43757, Lamurde Local Govt. v. Karka (2010) 10 NWLR (pt.1203) 574 at 597; that the decision of Kutigi, J.S.C., relied upon in the case of Universal Vulcanising (Nigeria) Ltd. v.Ijesha United Trading and Transport and Ors. (supra) is a dissenting judgment without utilitarian value while the majority judgment in the case (supra) supported a grant of the relief of specific performance in preference to damages in appropriate cases vide Orugbo v. Una (2002) 16 NWLR (pt.792) 175 at 208, FBN Plc and Anor. v. FCMB Plc and Anor. (2013) LPELR – 22050.

The cross-appellant also argued that contrary to the cross-respondents’ arguments, damages are difficult to access in present action in view of the peculiar nature of the contract in that there is no evidence of availability of similar contracts for the cross-appellant to enter into, therefore damages are inappropriate; accordingly, the cross-appellant argued that had the Court below used its discretionary powers fairly or judicially it would have granted the relief of specific performance vide UBN Plc v. Bear Marine Services Ltd. and Anor. (2018) LPELR – 43692, Mercantile Bank of Nigeria Plc v. Imesco Enterprises Ltd. (2016) LPELR – 41203.

The cross-appellant contended that the arguments of the cross-respondents whether there was formation of the contract are not the core of the cross-appeal which is confined to whether the refusal of the Court below to grant the relief of specific performance was right and; whether the damages awarded should have been pegged at $10 million; that the reason the Court below refused to grant the relief of specific performance did not include the reasons the cross-respondents advanced in support of the refusal of the relief by the Court below, nor do the said reasons arise from any ground of appeal, nor by any cross-respondents’ notice to vary or affirm the decision on specific performance on other grounds.

The cross-appellant further contended that the issue of non-signing of Exhibit P28 was not raised in the cross-appeal, nor were the non-receipt of Exhibit P9 by the 1st cross-respondent and the running of the 1st cross-respondent’s outlets by the 2nd cross-respondent part of the cross-appeal; that the 1st cross-respondent being the directing mind of the 2nd cross-respondent, the latter does not qualify as a 3rd party, so the 1st cross-respondent by incorporating the 2nd cross-respondent and assigning cross-appellant’s role under the joint venture to the 2nd cross-respondent should not be allowed to benefit from its own wrong as the 2nd cross-respondent allowed itself to be used as a vessel for breaching the contract vide B.M.N.L. v. Ola Ilemobola (2007) All FWLR (pt.379) 1340 at 1380, The Exec of Estate of Gen. Abacha v. Eke Spiff & Ors. (2009) 2 – 3 SC (pt.1139) 97.

It was also contended by the cross-appellant that hardship was not pleaded to avoid the issue of specific performance, nor the non-existence of the 2nd cross-respondent at the time of the formation and breach of the contract relevant to the cross-appeal as the 1st cross-respondent brought the 2nd cross-respondent into existence to avoid the contract making its said act self-induced, therefore the 1st cross-respondent should not be allowed to rely on the self-induced formation of the 2nd cross-respondent to avoid its contractual obligations vide N.B.C.I. v. Standard (Nig.) Eng. Co. Ltd. (2002) 8 NWLR (pt.768) 104 at 124, Mazin Ltd. v. Tower Aluminum (1993) 5 NWLR (pt.295) 526 at 534, Cricklewood Property and Investment Trust Ltd. v. Leightons Investment Ltd. (1945) AC 221.

It was further contended that the principle of yoking together in partnership applies to individuals not corporate bodies drawing different considerations; that the issue of delay in requesting for the remedy of specific performance was not part of the case at the Court below, so the cross-respondents are estopped from presenting a different case on appeal from the case presented at the Court below vide Pacers Multi-Dynamics Ltd. v. The M.V. Dancing Sister and Anor. (2012) 4 NWLR (pt.1289) 169, Agi v. PDP and Ors. (2016) LPELR – 42578, Ajide v, Kelani (1985) 3 NWLR (pt.12) 248 at 269.

It was finally contended that not having raised the issue of delay by way of cross-respondent notice, the cross-respondents cannot rely on the contention in the appeal nor should the issue of non-receipt of Exhibits P9 and P28 by the 1st respondent be a reason to deny the cross-appellant damages for anticipated profits as it was not raised for consideration in the cross appeal and/or did it form part of the reasons upon which the Court below refused to award damages on the head of claim for anticipated profit; more so, the reasonable contemplation of damages by the parties not actual knowledge is one of the guiding factors in the award of damages for breach of contract vide Hadley v. Baxendale (1854) 9 Exch. 231.

Relying on the cases of Fidler v. Sunlife Assurance Co. of Canada (2006) 2 SCR 3, Whiten v. Pilot Insurance Co. (2002) 1 SCR 595, Royal Bank of Canada v, G. Cot and Associates Electric Ltd. (1999) 3 SCR 408, Flamingo Park Pity Ltd v. Daily Creations Property Ltd. (1986) 6 IPR 431 at 456, Vorvis v. Insurance Corp. of British Columbia (1986) 1 SCR 1085 at 1106 and the book: Law of Contract Damages by Adam Kramer page 566, the cross-appellant contended that aggravated and exemplary damages should have been awarded as the conduct of the 1st cross-respondent in breaching the contract was calculated to make a profit for itself that far exceeded the compensation to the cross-appellant and in flagrant disregard of the cross-appellant’s contractual right in question.

It was further contended that this is a case the veil of incorporation should be lifted which will disclose that the directing mind of the 1st and 2nd cross-respondents as members of the 2nd cross-respondent perpetrated the fraud in the matter are therefore one and the same vide Mezu v. C. & C.B. (Nig.) Plc (year not provided) (pt.1340) 188 at 218, Adeyemi v. Lan and Baker (Nig.) Ltd. (2002) 7 NWLR (pt.663) 33 at 51, International Offshore Construction Ltd. v. S.L.N. Ltd. (2003) 16 NWLR (pt.845) 157 at 179 – 180.

The cross-appellant further contended that it led unchallenged and unrebutted evidence on the expenses it incurred in respect of the trip of its officials to South Africa in furtherance of the contract and should have been awarded it by the Court below vide Anglia v. Read (1992) 1 QB 60 at 63, Yem Seng PTE Ltd. v. International Trade Corp. (2013) Lloyds Rep. 256, Commonwealth of Austrialia v. Amann Aviation (1992) 174 LLR 64; upon which the cross-appellant urged that the cross-appeal be allowed.

The cross-appellant contended that because the cross-respondents did not file respondent’s notice of contention that the decision of the Court below should be varied or affirmed on other grounds (Order 9 Rule 1, 2 and 3 of the Court of Appeal Rules 2016 (the Rules of the Court)) they are confined to defend the decision of the Court on the remedy by specific performance. All that the Court below said on specific performance in its judgment in pages 2256 – 2257 of the record was that because the main claim of damages had been considered, the alternative claim of specific performance became immaterial.

In my opinion, something becomes immaterial when it is considered unimportant, not material, incorporeal, insignificant or no material existence/essence. (Webster Comprehensive Dictionary, International Edition 631). Because the remedy of specific performance became immaterial, the Court below did not determine whether on the muscle of the totality of the evidence the remedy could have been available to the cross-appellant. The cross-respondents were therefore not required to file respondent’s notice of contention.

It is my modest opinion that the Court below had the burden duty to consider all the issues placed before it including the claim of specific performance vide Katto v. CBN (1991) 9 NWLR (pt.214) 126 at 149, Oro v. Falade (1995) 5 NWLR (pt.396) 385 at 402, N.U.R.T.W. v. R.T.E.A.N. (2012) 10 NWLR (pt.1307) 170 at 198, Adegbuyi v. A.P.C. (2014) All FWLR (pt.761) 1486, enjoining both the trial Court and the intermediate appellate Court to consider all the relevant issues placed before them.

Since the Court below did not consider the remedy of specific performance, I will consider the claim of specific performance based on the printed record under Section 15 of the Court of Appeal Act, 2004, (as amended) on the general powers of the Court among other things to have full jurisdiction over the whole proceedings of case as the proceedings had been instituted in the Court as a Court of first instance and to re-hear the case in whole or in part on the printed record. The printed record will therefore be looked at holistically to ascertain whether the legal pre-requisites for a grant of the remedy of specific performance co-existed.

I think where an alternative claim is made in addition to the main claim, as in this case, the main claim should be considered first and if not successful, consideration of the alternative claim can be made by the Court concerned with the litigation as both the main claim and the alternative claim cannot be granted vide U.B.N. Ltd. & Anor. v. Penny Mart Ltd. (1992) 5 NWLR (pt.240) 228 at 241 following the cases of Nigerian Supplies Manufacturing Co. Ltd. v. Nigerian Broadcasting Corporation (1967) 1 All NLR 35 and Mercantile Bank of Nigeria Ltd. v. Adalma Tanker and Bunkering Services Ltd. (1990) 5 NWLR (pt.153) 747.
I think the Court below was in procedural error when it considered the alternative claim of damages before holding that consideration of the remedy of specific performance became immaterial.

But in my modest opinion, the procedural slip is a mere irregularity as to form or format of judgment writing and was not shown by the cross-appellant to have affected the substance of the judgment as to have occasioned any miscarriage of justice. The complaint, though well taken, is not enough to vitiate the decision arrived at in the case by the Court below as it is not every error committed by a Court that may lead to allowing an appeal unless the error is so fundamental that it has rendered the decision arrived at perverse which was not the case here vide Adejumo v. Ayantegbe (1989) 3 NWLR (pt.110) 417, at 433, Adeyemi v. A.-G., Oyo State (1984) 1 SCNLR 225, Balewa v. Doherty (1963) 1 WLR 949. So much on the issue.

The joint venture was to earn money by merchandise. Trade by selling of goods is quantifiable in monetary terms. Apart from the monetary heads of claim, the cross-appellant also claimed the relief of rendering of account as one of the heads of claim in paragraph 34(vi) of the statement of claim showing it is possible and practicable to compute and convert the transaction of selling goods in monetary terms. It is only where the rest of litigation is unique or customized or has personal attachment to the claimant such as a piece of real estate located in a place without substitute by way of weather condition, for example, that the remedy of specific performance may inure to a claimant. The contention of the cross-appellant that a joint project for the wholesale, distribution and retail of merchandise defies monetary quantification does not therefore bear substance and is hereby most respectfully rejected.
Being an equitable remedy designed to repair and meet inadequacy of law, the remedy of specific performance has to be applied with great caution, discretion, vigilance and circumspection so as to ensure that it is not applied to third parties who were not in existence at the time the transaction sought to be enforced was concluded; and/or where the third party did not participate in the transaction.
​Since the evidence is clear that the 2nd cross-respondent came into existence in 2004 and the transaction and its breach occurred before 2004, the 2nd cross-respondent being a separate legal entity and sued jointly and severally as such as the 2nd defendant at the Court below, not as an appendage of the 1st defendant at the Court below, an order to compel specific performance in the case would affect the 2nd cross-respondent as a third party with backlash on its lessor, Commonwealth Development Corporation (CDC), on the leased premises at the Palms Shopping Mall, Lekki, Lagos State, so it may not be just and equitable to invoke the remedy of specific performance in this case vide Olowu v. Building Stock Ltd. and Ors. (supra).
The cross-respondents’ brief stated in page 39 thereof that to grant the remedy of specific performance would “yoke parties together in a continuing hostile relationship”; I agree. But this can apply only where the hardship of yoking parties together in a continuing hostile relationship existed at the time of the formation of the contract which was not the case here vide Olowu v. Building Stock Ltd. and Ors. (supra).
The other factor is that being an equitable remedy specific performance can only be granted on the footing that the claimant acted with great promptitude as delay defeats equity, so goes one of the maxims of equity or equity aids the vigilant not the indolent so also goes another maxim of equity. The record shows that the cause of action crystallized in 2005, while page 1 thereof shows the action was filed in March, 2010, about five (5) years after the cause of action accrued. It was held in the case of Okonkwo v. Okonkwo and Ors. (supra) cited by the cross-respondents in page 20 of their brief that –
“… in claims … for specific performance and for rescission of contracts, the special relief in equity is only given on condition that the plaintiff comes with great promptitude. Any substantial delays after negotiations have terminated, such as a year or probably less will be a bar.”
See also Ibeziako v. Abutu (supra) cited by the cross-respondents. It follows that the delay of about 5 years between the breach complained of and the filing of the action asking for decree of specific performance barred the cross-appellant from the benefit of the remedy by specific performance.
​The legal requirement for the grant of the remedy of specific performance is whether damages will not be adequate compensation for the breach complained of and established by a claimant. Damages from what has fallen from me thus far, not specific performance, met the justice of the case. Besides as stated in Olowu v. Building Stock Ltd. (supra) specific performance is hardly granted in commercial transactions but readily considered and oftentimes granted in realty.

The 2nd cross-respondent was not a party to the negotiations and events that brought about the present dispute as it was not in existence at the material time and could not have been used as engine or instrument by the 1st cross-respondent to abort the partnership venture as such. Even if any or all the directors of the 2nd cross-respondent who are said to be directors of the 1st cross-respondent knew of the events or participated in the events, there was no way the 2nd cross-respondent as a corporate body could have been held liable for inducing breach of a contract to which it was not a party vide U.B.N. Plc v. Nwankwo (2019) 3 NWLR (pt.1660) 474 at 484 (para.D) and which was breached when it was not then in existence. It should have been a different twist or scenario had the 2nd cross-respondent, upon incorporation, ratified the transaction which was not the case here.
I think lifting the veil of incorporation or piercing the corporate veil is the judicial act of fastening liability on the individual members of the company and imposing personal liability on them for the fraud they committed on a third party dealing with the corporate body while hiding behind the shield or mask or veil of the corporate body by using the name of the corporate body to perpetrate the fraud vide Oyebanji v. State (2015) 14 NWLR (pt.1479) 270.
In this case, the cross-appellant had no dealings with the 2nd cross-respondent for the corporate veil of the 2nd cross-respondent to be lifted to impose personal liability on otherwise immune corporate officers, directors or shareholders of the 2nd cross-respondent for the 2nd cross-respondent’s alleged wrongful act. Nor was it established that the persons that participated in the formation of the contract by conduct were the same persons that were made shareholders or officers of the 2nd cross-respondent upon the incorporation of the 2nd cross-respondent. The principle of lifting the corporate veil does not, therefore, apply to the present case.
Double compensation arises in the award of damages when as stated in the case of GE International Operations (Nig.) Ltd. v. Q. Oil and Gas Services Ltd. (2016) 10 NWLR (pt.1520) 304 both special and general damages and/or separate damages on different heads of damages are awarded for the same set of facts. See also Ativie v. Kabelmetal Nig. Ltd. (2008) 10 NWLR (pt.1095) 399 at 420, British Airways v. Atoyebi (2014) 13 NWLR (pt.1424) 253.
Where, however, a claimant sought for special damages on different set of facts which were also known to the defendant at the time of making the contract, the claimant is entitled to the special damages in addition to general damages if the claimant pleaded and proved the special damages, or the general rule that only general damages should be available in breach of contract. See Hadley v. Baxendale (supra).
Here the cross-appellant did not establish that the cross-respondents were aware or had knowledge of what became special damages in the case at the time the transaction in question occurred, so the cross-appellant cannot burden the cross-respondents with what they were not expected in law to carry. It has to be added, by way of emphasis, that damages are deemed to be in issue where claimed in civil cases, unless expressly admitted which was not the case here vide Order 17 Rule 5 of the High Court of Lagos State (Civil Procedure) Rules 2012 (rules of the Court below).
The cross-appellant did not, also, establish that what later constituted special damages in the action was in the contemplation of the parties at the time of making the contract; more so, the 2nd cross-respondent was then not in existence at the material time. In the circumstance, the Court below could not have awarded the special damages claimed against the cross-respondents.
Now aggravated damages are meant to compensate the plaintiff for his wounded feelings vide Ilouno v. Chiekwe (1991) 2 NWLR (pt.173) 316 at 325 followed in N.D.L.E.A. v. Omidina (2013) 16 NWLR (pt.1381) 589 at 616, Odiba v. Azege (1998) 9 NWLR (pt.566) 370, Williams v. Daily Times (Nig.) Ltd. (1990) 1 NWLR (pt.124) 1. But a corporate body is an artificial entity and may not have the anatomy to experience wounded/injured feelings as distinct from injury to its credit or corporate image as a corporate body, so I do not, with deference, think the purport of aggravated damages hinged on wounded feelings which may have to do with human dignity will not fit a corporate body in the realm of the law of contract.
Exemplary damages also known as punitive or vindictive damages can apply only where the conduct of the defendant merits punishment. And this may be considered to be so where the conduct is wanton in the sense that the conduct disclosed fraud, malice, cruelty, insolence or the like; or where the conduct is a contumelious disregard of the plaintiff’s rights or where there is infraction of statutory/constitutional right by public servants vide Odiba v. Azege (1998) 9 NWLR (pt. 566) 370 followed in Miss Promise Mekwunye v. Emirates Airlines (2019) 9 NWLR (pt.1677) 191 at 225.
Projected loss of profits was documented in Exhibit 9 (near replica of Exhibit 28). The cross-appellant did not establish that Exhibit 9 was delivered to the cross-respondents at the time of the contract. The cross-respondents cannot, therefore, be burdened with what they did not reasonably foresee or anticipate from the contract.
​The claim for loss of anticipated profit is by its nature prospective in that the loss has not actually occurred. The specie of claim is based on mere estimates which suggests something that is not final or something to be ascertained with exactitude at a later date but does not mean the expenses had been incurred as it is a preliminary statement of the probable cost of proposed undertaking and is as good as an exercise in mere conjecture or guess-work which is the opposite of precise calculation of damages vide Ajigbotosho v. Reynolds Construction Co. Ltd. (2019) 3 NWLR (pt.1659) 287.
The claimant must also establish by evidence loss of business or customers as a result of the breach before the claim for anticipated profits will lie vide Uwa Printers (Nig.) Ltd. v. Investment Trust Company Ltd. (1988) 5 NWLR (pt.92) 110 at 127 (para. C), and 132 (para G and H).
The Supreme Court reiterated in the case of U.B.N. Plc v. Nwankwo (2019) 3 NWLR (pt.1660) 474 at 483 that profit margin or loss of profit based on future transactions is speculative and based on uncertainty of market forces remaining static throughout the transaction and the safety of movement of goods remaining incidence free and cannot on that account be within the contemplation of the parties at the time of making the contract and therefore remote as a consequence of the act of a defendant as it could not have been forseen by the defendant at the time of making the contract that led to the action. Based on the discourse (supra) the Court below was right not to award damages for loss of anticipated profit.
In the light of the fact that the award of $10 million general damages arose from and/or was based on the same set of facts obtainable in the other heads of damages, the Court below was right to hold that to award damages on the other heads of damages would amount to double compensation; more so, the other distinct heads of damages were not proved, therefore the Court below would have fallen into deep error if it had awarded the other heads of damages which would have amounted to windfall much against the principle upon which damages are awarded.

​Pre-judgment interest was not established to have arisen from mercantile custom or statute or in the contemplation of the parties and/or agreed upon by the parties at the making of the contract and could not have been awarded in the circumstances of the case vide Ekwunife v. Wayne W/A Ltd. (1989) 5 NWLR (pt.122) 422.

The arguments on post-judgment interest having been withdrawn by the cross-appellant at the hearing of the cross-appeal are hereby struck out.

In the final analysis, I find no merit in the cross-appeal and hereby dismiss it and affirm the decision of the Court below. Parties to bear their costs.

TIJJANI ABUBAKAR, J.C.A.: My Lord and learned brother JOSEPH SHAGBOR IKYEGH JCA, granted me the privilege of reading the sound and comprehensive Judgment prepared and rendered in this appeal. My Lord has fully and sufficiently covered the field, I have nothing useful to add, I adopt the entire Judgment as my own and endorse the consequential orders.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was privileged to have read in draft the comprehensive and detailed leading judgment of my learned brother, Joseph Shagbaor Ikyegh, JCA, which has just been delivered.

Having also read the Records of Appeal and the briefs of argument filed and exchanged by the parties, I find that the manner in which the issues thrust up for determination, in the appeal and cross appeal, were resolved in the leading judgment are in consonance with my views.

Accordingly, I adopt the reasoning and conclusion in the leading judgment as mine. I equally allow the appeal in part, but only as it relates to the 2nd Appellant. The appeal as it relates to the 1st Appellant is devoid of merit and it fails. In the same vein, the Respondent’s cross appeal is equally bereft of any merit and it equally fails. The decision of the Lower Court is consequently affirmed, except as it relates to the 2nd Appellant. I abide by the consequential orders made in the leading judgment, inclusive of the order as to costs.

Appearances:

Mr. A. Tunde-Olowu, with him, P. Mododu Esq. and O. Tobi Esq. – for Appellants/Cross-Respondent For Appellant(s)

Prof. T. Osipitan SAN, with him, Mr. A. Aliobidiye, Mr. A. Alebiosu and Mr. A. Benedict – for 1st Respondent/Cross-Appellant For Respondent(s)