STERLING BANK v. SHINING STAR (NIG) LTD (2022)

STERLING BANK v. SHINING STAR (NIG) LTD

(2022)LCN/16338(CA)

In The Court of Appeal

(LAGOS JUDICIAL DIVISION)

On Wednesday, February 23, 2022

CA/L/1209/2016

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Obande Festus Ogbuinya Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Between

STERLING BANK PLC APPELANT(S)

And

SHINING STAR NIGERIA LIMITED RESPONDENT(S)

RATIO

WHETHER OR NOT A PROCESS PREPARED AND FILED IN A COURT OF LAW BY A LEGAL PRACTITIONER MUST BE SIGNED BY THE LEGAL PRACTITIONER

By the provisions of Sections 2(1) and 24 of the Legal Practitioners Act, Laws of the Federation, 2004, a legal practitioner who can, within the meaning of the relevant Rules of Court, validate a Court process, whether writ of summons, notice of appeal, statement of claim or statement of defence, must be a named legal practitioner whose name is on the Roll of Legal Practitioners in the Supreme Court of Nigeria, registered to practice as a Barrister and Solicitor in this Country. I think these provisions have received frequent and consistent judicial interpretation such that it is now well settled that a process prepared and filed in a Court of law by a legal practitioner must be signed by the legal practitioner. A foremost authority was the case of Okafor v. Nweke (supra), (2007) LPELR-2412(SC), which was affirmed about five years later by the Apex Court sitting as a full Court in First Bank of Nigeria Plc v. Maiwada (supra), (2012) LPELR-9213(SC); (2012) 5 SC (Pt. 111) 1.
The decision in Okafor v Nweke (supra), as affirmed in FBN v Maiwada (supra), has been followed in a number of decisions of the Apex Court and of this Court. I shall mention but a few: SLB Consortium Ltd v. N.N.P.C. (2011) 9 NWLR (Pt. 1252) 317; (2011) LPELR-3074(SC), Okarika v. Samuel (2013) LPELR-19935(SC), Oketade v Adewunmi (2010) 8 NWLR (Pt. 1195) 63, SPDC v Sam Royal (Nig) Ltd (2016) LPELR-40062(SC), Okpe v. Fan Milk Plc & Anor (2016) LPELR-42562(SC), Williams & Anor v. Adold/Stamm International Nigeria Limited & Anor (2017) LPELR-41559(SC), GTB v. Innoson Nigeria Ltd (2017) LPELR-42368(SC), Arueze & Ors v. Nwaukoni (2018) LPELR-46352(SC), Akinsanya & Anor v. Federal Mortgage Finance Ltd (2010) LPELR-3687(CA), Igiriga v. Bassey (2013) LPELR-20346(CA), N.N.P.C. v. Roven Shipping Ltd (2014) LPELR-22540(CA), Kpezanyashi & Ors v Jezhi & Ors (2018) LPELR-44402(CA),; Ewukoya & Anor v. Buari & Ors (2016) LPELR-40492(CA). PER OTISI, J.C.A.

WHETHER OR NOT AN ORIGINATING PROCESS CAN BE SIGNED BY A LAW FIRM

The original Statement of Defence and counter-laim filed on 24/2/2006 was signed by a law firm, Johnson Odionu & Co. For the established reasons already given above, it was undoubtedly, an incompetent process. See also Skypower Express Airways Limited v. United Bank for Africa Plc & Anor (2022) LPELR-56590(SC). The attempt to regularize it on 18/2/2013, was futile. This is simply because an incompetent process cannot be amended by a competent process. See Yusuf v. Mobil Oil Nigeria Plc (supra), (2019) LPELR-55272(SC), UBN Plc v Lawal (2011) LPELR-8879(CA), FCMB Plc v. Ishola & Anor (2020) LPELR-51333(CA). Something cannot be placed on nothing. This has been settled beyond all cavil. In similar circumstance, this Court in Regd Trustees of World Assembly of Muslim Youths v. Proprietor, Evangel College, Okokomaiko & Ors (2017) LPELR-46287(CA), per Ikyegh, JCA said, pages 26 – 28:
“It was argued by the respondents that the statement of defence and counter-claim are not originating processes, so they need not be signed by a legal practitioner and that a law firm can validly sign such process. Section 2(1) and 24 of the Legal Practitioners Act applied in the Supreme Court case of Okafor v. Nweke (2007) 10 NWLR (Pt.1043) 521 is of universal application to any process filed in Court and purported to be signed by a legal practitioner. It is not restricted to originating processes. Once a process is filed in Court by a legal practitioner the process must bear the signature of the legal practitioner, the name of the legal practitioner clearly written, the party who the legal practitioner represents and the name and address of the law firm.
Any Court process signed by a law firm such as the 1st – 2nd respondents’ amended statement of defence in pages 86 – 92, 134 139 and 274 – 280 of the record which were signed by the law firm of FRIDAY ORIUWA & CO”, likewise, the 3rd – 8th respondents 1st statement of defence and counter-claim in pages 113 – 116 of the record and the further amended statement of defence and counter-claim in pages 121 – 124 of the record signed by the law firm of “Oladimeji Longe & Co”, are incurably defective, see Okafor v. Nweke (supra), SLB Consortium Ltd. v. N.N.P.C. (2011) 9 NWLR (Pt.1252) 317, F.B.N. v. Maiwada (2013) 5 NWLR (Pt.1348) 444, Alawiye v. Ogunsanya (2013) 5 NWLR (Pt.1348) 570, Shell Petroleum Development Company of Nigeria Ltd. v. Sam Royal Hotel Nigeria Ltd. (2016) 8 NWLR (Pt.1514) 318, Braithwaite v. Skye Bank Plc (2013) 5 NWLR (Pt.1946) 1. PER OTISI, J.C.A.

WHETHER OR NOT ANTICIPATED PROFITS WHICH FALLS UNDER THE CATEGORY OF SPECIAL DAMAGES MUST BE ESTABLISHED BY EVIDENCE

Anticipated profits, which falls into the category of special damages, must be established by evidence. The onus on a claimant to prove its anticipated profits. So, if for any reason, evidence which would help the trial Court to assess the accuracy of the projected profits is inadequate, lacking or not convincing, it is the claimant that will fail in its claim for anticipated profits.
In this case therefore, the Respondent had the onus to establish its anticipated profits. See Uwa Printers Ltd. v. Investment Trust Ltd (1988) 5 N.W.L.R. (Pt.92) 110, (1988) LPELR-3441(SC), A G Oyo State & Anor v Fairlakes Hotels Ltd & Anor (1989) LPELR-625(SC), Confidence Bureau De Change v. Ndeanefo (2016) LPELR-40934(CA). The question now is whether the Respondent discharged that onus to entitle it to the sum of N131, 927,000.00 as damages for loss of anticipated profit, even on minimal proof.
It is important to note that projected return on investment as well as the projected cash flow/sale revenue and profit from the mini steel plant project were attached to the Respondent’s letter, Exhibit C1. The Collins English Dictionary defines anticipated profit as the profit that one expects to make from a deal, transaction, or project. I have emphasized the word “expects to make” deliberately. An expected profit is by no means a certainty. A claim for loss of profit or anticipated profits is one that crystalized into special damage, which in effect is pecuniary losses that must be strictly proved. See Zenith Plastics Industry Ltd v Samotech Ltd (supra), (2007) LPELR-8260(CA). Strict proof in the context of special damages fundamentally means such proof as would readily lend itself to quantification or assessment. See West African Shipping Agency Nig Ltd v Musa Kalla (supra), (1978) LPELR-3477(SC); Ibrahim & Ors v. Obaje (2017) LPELR-43749(SC). Therefore, in order to ground liability for anticipated profit, there must be strict and satisfactory proof that the said anticipated profit was in actual fact achievable, but lost as a result of the Appellant’s breach.
The anticipated profits were really mere assumptions. The Respondent ought to have given evidence, whether oral or written, to demonstrate, with reasonable certainty, how these assumptions would be attainable and thereby justify any award for loss of profit or anticipated profit. The mere fact that calculations of such anticipated projected profit were part of the bundle of documents that the Appellant considered before it entered into the equipment leasing contract with the Respondent, cannot satisfy the demand of strict proof. PER OTISI, J.C.A.

THE DEFINITION OF MEASURES OF DAMAGES

It is well established that the measure of damages in a breach of contract is the loss flowing naturally from the breach and is incurred in direct consequence of the violation. In the case of Hadley v. Baxendale (1854) 9 Exchequer 341, it was held that:
“Damages are recoverable by the injured party if the loss may be fairly and reasonably considered to arise naturally. The loss must be reasonably supposed at the time of making the contract, to have been in the contemplation of both parties as the probable consequence of its breach.”
This principle has been followed in a plethora of authorities, and I shall mention a few: G. Chitex Industries Ltd v. Oceanic Bank International (Nig) Ltd (2005) LPELR-1293(SC), Marine Management Associates Inc. & Anor v. National Maritime Authority (2012) LPELR-20618(SC), Ahmed v CBN (2012) LPELR-9341(SC), Kusfa v. United Bawo Construction Company Limited (1994) LPELR-1721(SC), Union Beverages Ltd v. Owolabi (1988) LPELR-3396(SC). In my considered opinion, the Cross Appellant was entitled damages that would reasonably place it in the position it would have been, had there been no breach of the contract for equipment leasing. PER OTISI, J.C.A

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This appeal was lodged against the judgment of the High Court of Lagos State Coram Femi-Adeniyi, J., delivered on September 21, 2016 in which the claims of the Respondent were allowed, while the counterclaim of the Appellant was dismissed.

The facts leading to this appeal can be summarized in this manner: The Respondent, as claimant before the lower Court, sought the following reliefs against the Appellant as defendant:
1. An order for the payment of the sum of N1,205,860,000.00 (One Billion, Two Hundred and Five Million, Eight Hundred and Sixty Thousand Naira) by the Defendant to the Claimant as special damages incurred by the Claimant as a result of the several breaches by the Defendant of the contract for loan/equipment lease facility as detailed in paragraph 52 herein.
2. An order for the payment of the sum of US $245,820.00 (Two Hundred and Forty-Five Thousand Eight Hundred and Twenty United States Dollars) by the Defendant to the Claimant as special damages incurred by the Claimant as a result of the several breaches by the Defendant of the contract for loan/equipment lease facility as detailed in paragraph 52 herein.
3. An award of the sum of N50,000,000.00 (Fifty Million Naira) against the Defendant in favour of the Claimant as general damages arising from the several breaches of contract by the Defendant.
See the Amended Statement of Claim, pages 516-530 of the Record of Appeal. There was some controversy as to whether the Appellant had filed any valid statement of defence and counter-claim. I shall return to this point anon.

At the conclusion of hearing, the learned trial Judge held that the Respondent had proved its claims, and entered judgment in its favour. The learned trial Judge however dismissed the Appellant’s counter-claim.

The Appellant was dissatisfied with the entire judgment, lodged this appeal by Notice of Appeal, filed on 27/9/2016, pages 987 – 993 of the Record of Appeal, Vol. 2. An Amended Notice of Appeal on nine grounds of appeal, was filed on 16/11/2021. The Respondent, also displeased with portions of the said judgment, filed a cross-appeal. The Notice of Cross-Appeal on seven grounds of appeal, dated 15/12/2016, is found at pages 1 – 8 of the Additional Record of Appeal transmitted to this Court on 19/1/2017.

The parties filed Briefs of Argument pursuant to the rules. The Appellant/Cross-Respondent’s brief was filed on 16/11/2021. The Respondent/Cross-Appellant’s Amended Brief was filed on 22/11/2021. The Appellant/Cross-Respondent’s brief was filed on 25/11/2021. At the hearing of this appeal on 29/11/2021, the said briefs were, respectively, adopted by Johnson Odionu, Esq., with Jane Anyika, Esq., for the Appellant/Cross-Respondent and by Olusegun B. Ajayi, Esq., with Chikezie Nwagboso, Esq., for the Respondent/Cross-Appellant.

The Appellant/Cross-Respondent distilled nine issues for determination of the appeal:
1. Whether the lower Court is right in holding that the failure of the Appellant to lead evidence in support of the averment in paragraph 1 of its Statement of Defence places no burden of proof on the Respondent to prove its existence as a duly registered company with Legal personality. This is related to grounds one and two of the Amended Notice of Appeal.
2. Whether there was another agreement between the parties herein other than Exhibit C4. This is related to grounds three of the Amended Notice of Appeal
3. Whether the Appellant having regard to the totality of this case is in breach of the equipment leasing facility agreement between the Appellant and the Respondent. This is related to grounds four of the Amended Notice of Appeal.
4. Whether the lower Court is right in holding that the allegation of fraud, by the Appellant in the matter was not proved beyond reasonable doubt. This is related to grounds five of the Amended Notice of Appeal.
5. Whether the Respondent has proved that it is entitled to the sum of N131,927,000 from the Appellant as damages for loss of anticipated profit. This is related to grounds six of the Amended Notice of Appeal.
6. Whether the lower Court is right in holding that the Respondent is entitled to a refund of N2 Million, it paid to the Appellant towards the purchase of the equipment. This is related to grounds seven of the Amended Notice of Appeal
7. Whether the lower Court was right in awarding 10% on the sum of N131,927,000.00 from the date of judgment until liquidation and cost of N250,000. This is related to grounds eight of the Amended Notice of Appeal
8. Whether the lower Court was right in dismissing the counter-claim of the Appellant. This is related to grounds nine of the Amended Notice of Appeal.

On its part, the Respondent/Cross-Appellant distilled these issues for determination of the cross-appeal:
1. Whether the lower Court was right in not nullifying the Appellant’s Amended Statement of Defence and counter-claim dated 9th January, 2013 which sought to amend the Appellant’s Amended Statement of Defence and Counterclaim dated 24th February, 2006 which was signed by a law firm and was therefore null and void. This is related to ground one (1) of the Cross-Appeal.
2. Whether the lower Court should not have treated the Respondent’s pleadings and evidence as unchallenged and uncontroverted when the Appellant in law had no defence whatsoever to the claims of the Respondent. This is related to ground two (2) of the Cross-Appeal.
3. Whether the lower Court was right in holding that the Appellant was not in breach of the letter of credit on the ground that the Appellant did not cancel the letter of credit but that the letter of credit lapsed because the beneficiary of the letter of credit did not supply the equipment within the six (6) months period stipulated in the letter of credit. This is related to ground three (3) of the cross-appeal.
4. Whether the lower Court was right in holding that there was a loan between the Appellant and the Respondent which was later converted to a lease by Exhibit C 39. This is related to ground four (4) of the Cross-Appeal.
5. Whether the lower Court was right in holding that the Respondent was not entitled to damages for the US$150,000 deposit the Respondent paid to the beneficiary of the letter of credit, the US$95,820.00 being the various consultants’ fees and expenses and the N960,000.00 salaries for the technical staff engaged for the project by the Respondent because there was no specific agreement on these items between the Appellant and the Respondent. This is related to ground five (5) of the cross-appeal
6. Whether the lower Court was right in restricting the special damages awarded for loss of business profits to only eight (8) quarters that is, two (2) years when the evidence was abundant that the Appellant frustrated the Respondent’s project for six (6) years from 1999 to 2005. This is related to ground six (6) of the Cross-Appeal
7. Whether the lower Court was right in not making specific finding on the number of containers cleared by the Appellant when the Appellant’s sole witness swore on oath that the Appellant cleared the Six (6) containers. This is related to ground seven (7) of the Cross-Appeal.

The Respondent/Cross-Appellant had argued its issue 1 together with the Appellant’s issue 1. Having regard to the questions raised therein, I consider it appropriate to commence the resolution of this appeal with the said issues, renumbering both issues, issue 1. A resolution of Issue 2 of the cross-appeal would necessarily dovetail into Issue 1. I shall therefore resolve issue 1, as renumbered, and Issue 2 of the cross-appeal, together.

Issue 1 (as renumbered) and Issue 2
The Respondent, as claimant, in its Statement of Claim had described itself as a Limited Liability Company registered under the Laws of the Federal Republic of Nigeria with its registered office at No. 7, Randle Crescent, Apapa, Lagos. The Appellant as defendant denied these averments, putting it to the strictest proof. In its reply to the Statement of Defence and Defence to counter-claim the Respondent gave no response. On this issue however, the lower Court held that the failure of the Appellant to lead evidence in support of the averment placed no burden of proof on the Respondent to prove its legal personality.

In its complaint over the decision of the lower Court, the Appellant submitted that issues are joined on pleadings when an averment in the opponent’s pleadings has been denied or traversed, citing authorities, which included Onyero v. Nwadike (1996) 9 NWLR (PT. 471) 231, Orjiekwe v. Orjiekwe (2001) FWLR (PT. 1181), Makwe v. Nwukor (2001) FWLR (PT. 63) 1. Where issues are not joined on a point, there would be no need to prove them citing Oyagbola v. Okubule (1986) 2 CA (PT. 1) 251; Onyejekwe v. Onyejekwe (1999) 3 SC 1.

It was submitted that in view of the averments in paragraph 1 of the said Appellant’s Statement Defence, the fact whether the Respondent was a Limited Liability Company Incorporated under the Laws of the Federal Republic of Nigeria was put in issue. The Respondent had the burden to prove that fact, citing Ugochukwu v Unipetrol (Nig) Plc (2002) FWLR (PT. 108) 1433, Daniyan v. Iyagin (2002) FWLR (PT. 120) 180, Pioneer Milling Co. Ltd v Nansing (2003) FWLR (PT. 151) 1820, Motunwase v. Sorungbe (1988) 12 SC (PT. 1) 130. That where a party in a suit does not admit a fact in his opponent’s pleadings, the fact must be proved, citing BON v. Babatunde (2002) FWLR (PT. 119) 1452.

The Respondent had the duty to prove that it is a juristic person entitled to sue and liable to be sued in the name that it has done, by producing evidence of incorporation, such as the Certificate of Incorporation; relying on Nduka v Ezenwaku (2001) 6 NWLR (PT. 709) 494, Abakaliki LGC v. Abakaliki RMO (1990) 6 NWLR (PT. 155) 182, Principal GS School IKACHI v Igbudu (2005) 12 NWLR (PT 940) 543 at 566, Ifedapo Comm. Bank Ltd v C & S Church (2001) 7 NWLR (PT 712) 508 at 515. Judicial personality cannot be speculated upon citing ACB Plc v Emostrade Ltd (2002) FWLR (PT. 109) 540.

It was contended that the Respondent, which had the burden, did not prove that it was a legal personality, thereby robbing the lower Court of its Jurisdiction, relying on the provisions of Section 131 of the Evidence Act, 2011. Reliance was also placed on the case of Braimah v Abasi (1998) 13 NWLR (PT 581) PA 171. The Court was urged to set aside the decision of the lower Court, and to hold that having failed to produce evidence in proof of its legal personality, the lower Court ought to have declined jurisdiction and stuck out the Respondent’s suit.

For the Respondent, it was contended that the Appellant never had any valid pleading whatsoever before the lower Court as the purported Amended Statement of Defence and counter-claim of the Appellant dated 9/1/2013 was a complete nullity, there was therefore no joinder of issues in the lower Court. The Respondent’s case was deemed admitted, uncontradicted and uncontroverted by the Appellant. That the lower Court was in error by failing to declare the Amended Statement of Defence and counter-claim of the Appellant of 9/1/2013 a nullity on the ground that the lower Court was functus officio, having granted an Order deeming the pleading duly filed and served, and that only the Appeal Court can declare the said Statement of Defence null and void. It was submitted that when an Order of Court or a Court process is a nullity, the same Court that made the order or that allowed the Court process can declare it void and set same aside, in its inherent jurisdiction, on the application of the aggrieved party or even suo motu, without resorting to an appeal, citing Chief Emmanuel Bello v. Independent National Electoral Commission and 2 Ors (2010) 8 NWLR (Pt. 1196) 342; (2010) 3 MJSC (Pt. III) 1.

The initial Statement of Defence and counter-claim of the Appellant dated 24/2/2006 was signed by a law firm. The Amended Statement of Defence and counter-claim of the Appellant dated 15/8/2007 was also signed by a law firm. In Emmanuel Okafor & Ors vs. Augustine Nweke & Ors (2007) 10 NWLR (Pt.1043) 521, it was held by the Supreme Court of Nigeria that any Court process signed in the name of a law firm is incompetent, based on the provisions of Section 2 (1) and Section 24 of the Legal Practitioners Act Cap C11 of the Laws of the Federation of Nigeria, 2004. Further reliance was placed on a number of decisions, including Amos Oketade v. Mrs. Olayinka Adewunmi & Ors (2010) 8 NWLR (Pt.1195) 63; (2010) 3 M.J.S.C (Pt II) 31 at 41 & 42; SLB Consortium Ltd v. Nigerian National Petroleum Corporation (2011) 9 NWLR (Pt 1252) 317, First Bank of Nigeria Plc & Ors v. Salmanu Maiwada consolidated with Framphino Pharmaceutical v. Jawa International ltd (2013) 5 NWLR (Pt.1348) 444.

It was submitted that the Amended Statement of Defence and counter-claim of the Appellant dated 9/1/2013 was an amendment of the earlier Statement of Defence and counter-claim of the Appellant, as was stated in the Motion on Notice dated 10/1/2013, pages 684-685 of the Record of Appeal. In the said motion, the Appellant sought extension of time to file the Amended Statement of Defence and Counterclaim dated 9/1/2013, and asked the lower Court to deem it as properly filed and served. That this Amended Statement of Defence and Counterclaim of the Appellant of 9/1/2013, being an amendment, is a nullity. Court processes signed by a law firm cannot be cured by any amendment whatsoever, further citing Ministry of Works and Transport Adamawa State & Ors v. Alhaji Isiyaku Yakubu & Anor (2013) 6 NWLR (Pt. 1351) 481; (2013) 1 MJSC (Pt II) 65.

The Appellant’s Motion on Notice dated 15/5/2015 sought extension of time for the Appellant to file a Statement of Defence and counter-claim only till February, 2013 and not till May, 2015, when the motion was brought, and the Motion only asked the lower Court to deem the Appellant’s incompetent Amended Statement of Defence and counter-claim of 9/1/2013 to be the authentic Statement of Defence and counter-claim of the Appellant. No new Statement of Defence and counter-claim was ever filed by the Appellant pursuant to the said Motion on Notice dated 15/5/2015. Payment of default fees was only up to 9/1/2013 and not up to 15/5/2015.

It was submitted that the fact that the Respondent did not object to the said motion of 15/5/2013 does not cure the fundamental defect of its nullity. Consent of parties cannot resuscitate a dead process. When an act is void ab initio, it cannot be validated by subsequent acts even if valid, citing Military Administrator Benue State v. Ulegede (2001) 9 MJSC 1 (2001) 17 NWLR (Pt. 741) 194, UAC Ltd v. Macfoy (1961) 3 All E.R. 1160, Mrs Victoria Abe & Anor v. Skye Bank Plc & Ors (2015) 4 NWLR (Pt. 1450) 512. Further reliance was placed on authorities including SLB Construction Ltd vs NNPC (supra); Nigeria Army v Samuel (2013) 14 NWLR (Pt. 1375) 466, Dickson Ogunseinde & Anor vs Societe Generale Bank Ltd & Ors (2018) 9 NWLR (Pt. 1624) 230, Chief Albert Alikor & Ors v. Chief M.W. Ogwo & Ors (2019) 15 NWLR (Pt. 1695) 331, Alhaji Saka Salami v. Alhaji Mohammed Muse Family (2019) 13 NWLR (Pt. 1689) 301. The Respondent reasoned that the Appellant/Cross Respondent, having filed no valid pleadings, the only pleadings filed were the Statement of Claim.

The case of Alhaji Fatai Yusuf v. Mobil Oil Nigeria Plc (2020) 3 NWLR (Pt. 1710) 1, inter alia, was further relied on to argue that an incompetent process cannot be amended. That the issue of a law firm signing a process could be raised even at the Supreme Court, for the first time, citing Adekunle Ajibode & Ors v. Dauda Gbadamosi & Ors (2021) 7 NWLR (Pt. 1776) 475.

On whether the Statement of Defence and counter-claim is not an originating process and when signed by a law firm is not incompetent and a nullity, it was submitted that any Court process must be signed by a Legal Practitioner. Further, that a counter-claim being an independent action, when it is Statement of Defence and counter-claim, it is an originating process.

It was posited that the impact of the authorities relied on is that the Appellant has not contradicted any averment of the Respondent in the Respondent’s Amended Statement of Claim of 23/10/2012. That the issue of legal personality of the Respondent therefore does not arise at all as the Respondent does not have any legally recognised or valid Statement of Defence with which to join issues with the Respondent, citing Multichoice Nigeria Ltd v. Musical Copyright Society Nig. Ltd/GTE (2020) 13 NWLR (Pt. 1742) 415.

The Respondent called the attention of the Court to paragraph 1 of the Statement of Defence and counter-claim of the Appellant of 24/2/2006 in which the Appellant had admitted the legal personality of the Respondent. A later Amended Statement of Defence and counter-claim of 9/1/2013 can no longer make an issue of what had already been admitted, referring to Order 17 Rule 8 of the High Court of Lagos Civil Procedure Rules, 2012. Reference was also made to the commencement clause of the Equipment Lease Agreement prepared by the Appellant and signed by the Appellant and the Respondent, which was admitted in evidence as Exhibit C6, and which stated that the Respondent was a Company incorporated in Nigeria. By Section 123 of the Evidence Act, 2011, what the parties had admitted either by their pleadings or by any writing under their hands is not to be subject to further proof. The Respondent is a limited liability company and under no obligation to again prove same to the Court.

In the reply brief, the Appellant submitted that the Respondent was wrong to place reliance on a process it had argued was incompetent to submit that it had admitted the legal personality of the Respondent. It was reiterated that the extant pleadings of the Appellant was captioned Amended Statement of Defence and counter-claim of 9/1/2013.

Resolution
By the provisions of Sections 2(1) and 24 of the Legal Practitioners Act, Laws of the Federation, 2004, a legal practitioner who can, within the meaning of the relevant Rules of Court, validate a Court process, whether writ of summons, notice of appeal, statement of claim or statement of defence, must be a named legal practitioner whose name is on the Roll of Legal Practitioners in the Supreme Court of Nigeria, registered to practice as a Barrister and Solicitor in this Country. I think these provisions have received frequent and consistent judicial interpretation such that it is now well settled that a process prepared and filed in a Court of law by a legal practitioner must be signed by the legal practitioner. A foremost authority was the case of Okafor v. Nweke (supra), (2007) LPELR-2412(SC), which was affirmed about five years later by the Apex Court sitting as a full Court in First Bank of Nigeria Plc v. Maiwada (supra), (2012) LPELR-9213(SC); (2012) 5 SC (Pt. 111) 1.
The decision in Okafor v Nweke (supra), as affirmed in FBN v Maiwada (supra), has been followed in a number of decisions of the Apex Court and of this Court. I shall mention but a few: SLB Consortium Ltd v. N.N.P.C. (2011) 9 NWLR (Pt. 1252) 317; (2011) LPELR-3074(SC), Okarika v. Samuel (2013) LPELR-19935(SC), Oketade v Adewunmi (2010) 8 NWLR (Pt. 1195) 63, SPDC v Sam Royal (Nig) Ltd (2016) LPELR-40062(SC), Okpe v. Fan Milk Plc & Anor (2016) LPELR-42562(SC), Williams & Anor v. Adold/Stamm International Nigeria Limited & Anor (2017) LPELR-41559(SC), GTB v. Innoson Nigeria Ltd (2017) LPELR-42368(SC), Arueze & Ors v. Nwaukoni (2018) LPELR-46352(SC), Akinsanya & Anor v. Federal Mortgage Finance Ltd (2010) LPELR-3687(CA), Igiriga v. Bassey (2013) LPELR-20346(CA), N.N.P.C. v. Roven Shipping Ltd (2014) LPELR-22540(CA), Kpezanyashi & Ors v Jezhi & Ors (2018) LPELR-44402(CA),; Ewukoya & Anor v. Buari & Ors (2016) LPELR-40492(CA).
Without going into much detail, it is important to note that the decisions in Heritage Bank Ltd v Bentworth Finance (Nig.) Ltd (2018) 3 NWLR (PT 1625) 420, per Eko, JSC, and in Bakari v. Ogundipe & Ors (2020) LPELR-49571(SC), per Rhodes-Vivour, JSC, which appeared to have espoused the contrary position of waiver of the right to object to a defective process that has not been appropriately signed by a legal practitioner, where the party objecting had participated in the proceedings, were not decisions of the Supreme Court sitting as a full Court. In First Bank of Nigeria Plc v. Maiwada (supra), the reason for which the full Court was empaneled was stated, per Fabiyi, JSC thus, page 3 of the E-Report:
“The core issue in my considered opinion is – whether a Court process not personally signed by a legal practitioner duly registered in the roll of this Court as dictated by the applicable provisions of the Legal Practitioners Act is valid or competent.
Among legal practitioners, we have two schools of thought in respect of the above salient, issue. The division is very grave indeed. To put the dispute at rest, the Hon. Chief Justice of Nigeria has empanelled a full Court. A host of amicus curiae got invitation to address the Court on the issue.”
In other words, it was to avoid confusion and discordant judicial pronouncements on the competence or validity of a Court process not personally signed by a legal practitioner duly registered in the roll of the Supreme Court as provided in the Legal Practitioners Act that the Supreme Court sitting as a full Court was empaneled.
In this regard therefore, and with utmost respect, it is my humble opinion that the decisions in Heritage Bank Ltd v Bentworth Finance (Nig.) Ltd (supra) in 2018, and in Bakari v. Ogundipe & Ors (supra) in 2020, which were not decisions of the Supreme Court sitting as a full Court, cannot be said to represent the extant position of the law on this issue. Therefore, the decision in Okafor v Nweke (supra), duly affirmed in FBN v Maiwada (supra), still represents law. See also the recent affirmation in Ajibode & Ors v Gbadamosi & Ors (2021) LPELR-53089(SC), per Ngwuta, JSC (of blessed memory).

The Appellant/Cross-Respondent initially filed a Statement of Defence and counter-claim, dated 24/2/2006, but signed in the name of the law firm, Johnson Odionu & Co., pages 108-115 of the Record of Appeal. This was clearly an incompetent process. There was another process titled, the Appellant/Cross-Respondent’s Amended Statement of Defence and counter-claim dated 15/8/2007, pages 239-247 of the Record of Appeal. The Respondent/Cross-Appellant contended that it was also signed in the name of the law firm, Johnson Odionu & Co. However, the copy in the Record of Appeal before the Court appears to have been somewhat mutilated.

Perhaps in line with the contention of the Respondent/Cross-Appellant, on account of the incompetence of this second process, the Appellant/Cross-Respondent filed a third process also headed: The Appellant/Cross-Respondent’s Amended Statement of Defence and counter-claim, dated 9/1/2013. This time, it was signed by a legal practitioner, Johnson Odionu, Esq., pages 691-703 of the Record of Appeal.

By a Motion on Notice dated 10/1/2013, the Appellant/Cross-Respondent sought the following orders, page 684 of the Record of Appeal:
1. An order of this Honourable Court extending the time within which the Defendant/Applicant may file and serve its Amended Statement of Defence and counter-claim pursuant to the order of this Honourable Court made on 22/10/12 granting leave to the Claimant to amend its Statement of Claim.
2. An order deeming the Defendant/Applicant’s amended Statement of Defence and counter-claim filed and served as properly filed and served in this suit.

In an Affidavit of Compliance deposed to on 15/2/2013, page 688 of the Record of Appeal, Jane Anyika, Legal Practitioner for the Appellant/Cross-Respondent stated:
3. That we were served with the Claimant’s Amended Statement of Claim and all the front-loading documents dated 23rd of October, 2012 on 7th November 2012. Consequent upon which we filed the Defendant’s Amended Statement of Defence dated 9th of January, 2013.
4. That we are in default for 36 days (Thirty-six) having exhausted the Defendant’s 7 (Seven) days to file her Amended Statement of Defence.
5. That we have paid the default sum of Seven Thousand, Two Hundred naira(sic) (N7, 200.00) only being the sum for the default. Attached herewith and marked Exhibits A and B are copies of the payment receipt and copy of the calculation of the default by the Honourable Court.

At the proceedings before the lower Court on 18/2/2013, the following was transcribed, page 909 of the Record of Appeal:
Odionu: We have filed an (sic) consequential amendment. It is dated 19/01/2013 (sic) filed out of time. We filed a motion to regularize the filing dated 10/01/2013.
Ajayi: Not opposed to the application.
Odionu: I move in term of the application.
Court: Ordered as prayed the requisite filing and default fees having been paid.

The process being referred to and which was regularized was the process filed on 9/1/2013.

Strangely, by another Motion on Notice dated 15/5/2015, pages 768-773 of the Record of Appeal, the Appellant/Cross-Respondent sought to regularize the same Amended Statement of Defence and counter-claim dated 9/1/2013, praying the lower Court as follows:
1. An order of this Honourable Court extending time within which the Defendant/Applicant can file its Statement of Defence.
2. An order converting the amended Statement of Defence dated 9th January, 2003 (2013), already filed and served in this matter as the authentic Statement of Defence of the Defendant in this matter and also deeming same as properly filed and served…

The learned trial Judge on 19/5/2015 granted the order and further ordered that the assessed default filing fees be paid; page 938 of the Record of Appeal.

To my mind, a number of disconcerting questions have arisen by these proceedings. In the first place, at the proceedings of 18/2/2013, page 909 of the Record of Appeal, the motion on notice dated 10/1/2013, which sought to regularize the Amended Statement of Defence and counter-claim was moved and granted by the lower Court. Contrary to the assertions of the Appellant/Cross-Respondent, and indeed, alien to ethical and acceptable practice, that same process could not have been purportedly ‘converted’ by any means to any other process in 2015. It was already regularized as the Appellant/Cross-Respondent’s Amended Statement of Defence and counter-claim dated 9/1/2013 on 18/2/2013. The fact that the Respondent/Cross-Appellant did not object to the obfuscated application is irrelevant.

The original Statement of Defence and counter-laim filed on 24/2/2006 was signed by a law firm, Johnson Odionu & Co. For the established reasons already given above, it was undoubtedly, an incompetent process. See also Skypower Express Airways Limited v. United Bank for Africa Plc & Anor (2022) LPELR-56590(SC). The attempt to regularize it on 18/2/2013, was futile. This is simply because an incompetent process cannot be amended by a competent process. See Yusuf v. Mobil Oil Nigeria Plc (supra), (2019) LPELR-55272(SC), UBN Plc v Lawal (2011) LPELR-8879(CA), FCMB Plc v. Ishola & Anor (2020) LPELR-51333(CA). Something cannot be placed on nothing. This has been settled beyond all cavil. In similar circumstance, this Court in Regd Trustees of World Assembly of Muslim Youths v. Proprietor, Evangel College, Okokomaiko & Ors (2017) LPELR-46287(CA), per Ikyegh, JCA said, pages 26 – 28:
“It was argued by the respondents that the statement of defence and counter-claim are not originating processes, so they need not be signed by a legal practitioner and that a law firm can validly sign such process. Section 2(1) and 24 of the Legal Practitioners Act applied in the Supreme Court case of Okafor v. Nweke (2007) 10 NWLR (Pt.1043) 521 is of universal application to any process filed in Court and purported to be signed by a legal practitioner. It is not restricted to originating processes. Once a process is filed in Court by a legal practitioner the process must bear the signature of the legal practitioner, the name of the legal practitioner clearly written, the party who the legal practitioner represents and the name and address of the law firm.
Any Court process signed by a law firm such as the 1st – 2nd respondents’ amended statement of defence in pages 86 – 92, 134 139 and 274 – 280 of the record which were signed by the law firm of FRIDAY ORIUWA & CO”, likewise, the 3rd – 8th respondents 1st statement of defence and counter-claim in pages 113 – 116 of the record and the further amended statement of defence and counter-claim in pages 121 – 124 of the record signed by the law firm of “Oladimeji Longe & Co”, are incurably defective, see Okafor v. Nweke (supra), SLB Consortium Ltd. v. N.N.P.C. (2011) 9 NWLR (Pt.1252) 317, F.B.N. v. Maiwada (2013) 5 NWLR (Pt.1348) 444, Alawiye v. Ogunsanya (2013) 5 NWLR (Pt.1348) 570, Shell Petroleum Development Company of Nigeria Ltd. v. Sam Royal Hotel Nigeria Ltd. (2016) 8 NWLR (Pt.1514) 318, Braithwaite v. Skye Bank Plc (2013) 5 NWLR (Pt.1946) 1.
The defective processes in question were amended and signed by a legal practitioner for each set of the respondents. I think the amendment breathed no life in the defective processes because an incurably defective process cannot be amended vide Ministry of Works and Transport, Adamawa State and Ors v. Alhaji Isiyaku Yakubu and Anor (2013) 6 NWLR (Pt.1351) 481 at 496, Okarika v. Samuel (2013) 7 NWLR (Pt. 1352) 19 at 43.”
Therefore, whatever order made by the learned trial Judge on 19/5/2015 purporting to extend time for the Appellant/Cross-Respondent to file their statement of defence was a vain and null order.

I find the payment of purported default fees by the Appellant a further spirited attempt to convolute the proceedings before the trial Court. By the Affidavit of Compliance, the payment receipt and other relevant processes, filed on 28/10/2015, pages 774 – 779 of the Record of Appeal, the Appellant paid N452, 000.00 for 2,260 days, from 1/12/2005 – 9/1/2013. By the Affidavit of Compliance deposed to on 15/2/2013, page 688 of the Record of Appeal, Jane Anyika, Legal Practitioner for the Appellant/Cross-Respondent stated that they paid default fees of N7, 200.00 for 36 days to regularize the one and same process, the Amended Statement of Defence and Counterclaim dated 9/1/2013.

The foregoing record reveals that the same process, the Amended Statement of Defence and counter-claim dated 9/1/2013 was first regularized on 18/2/2013, then two years later on 19/5/2015, when the lower Court, on the application of the Appellant/Cross-Respondent purportedly “converted” the same process to a new Statement of Defence and Counterclaim. An absolute impossibility.

In sum, the Statement of Defence and counter-claim filed on 24/2/2006, pages 108 – 126 of the Record of Appeal, which was signed by Johnson Odionu & Co., was an incompetent process. The attempt to regularize it was also incompetent, more so the process of 9/1/2013, on which the Appellant/Cross-Respondent had tried to do some disingenuous re-engineering.

As the matter stands, the Appellant/Cross-Respondent had no competent pleadings before the lower Court. The Statement of Defence and counter-claim of 24/2/2005, as well as any purported “converted” form, dated 9/1/2013, are hereby struck out for being incompetent. Any evidence adduced based thereon was therefore baseless and is hereby expunged. Issue 1, as renumbered, and Issue 2 of the cross-appeal, are thus resolved in favour of the Respondent/Cross-Appellant and against the Appellant/Cross-Respondent.

Therefore, the only pleading before the lower Court was the Respondent’s Amended Statement of Claim, pages 221 – 226 of the Record of Appeal Vol 1. In this circumstance, issues have not been joined by the parties. See Egesimba v. Onuzuruike (2002) LPELR-1043(SC). This meant in effect that the averments on the statement of claim of the Respondent were not denied or challenged. The necessary consequence of this is that the said averments were admitted by the Appellant; Okoebor v. Police Council & Ors (2003) LPELR-2458(SC); FUTM, Niger State & Ors v. Olutayo (2017) LPELR-43827(SC).
It must be emphasized, however, that this does not amount to an automatic victory for a claimant in such a case. This is because a claimant must succeed on the strength of his case and not rely on the weakness of the defence. See AIC Ltd v NNPC (2005) LPELR-6(SC); Insurance Brokers of Nigeria v. Atlantic Textiles Manufacturing Company Limited (1996) LPELR-1518(SC). Therefore, regardless of the absence of a statement of defence or evidence led by the defendant, the claimant must still prove his case. The trial Court in such a case, would not be required to go into elaborate evaluation of the evidence tendered by only one party except to ensure that the evidence tendered actually proved the claim. The onus on the claimant will be discharged on minimal proof, as there would be no evidence to put the other side on an imaginary scale and see where the pendulum of justice swings. See Bua v Dauda (2003) LPELR-810(SC), Bauchi State Government v. Gumau & Anor (2019) LPELR-47061(CA), Billie v Multi-Links Telecoms Ltd (2017) LPELR-41862(CA). The trial Court is bound to accept the evidence of the party in Court in absence of a rebuttal. See COP, Anambra State & Anor v. A. A. Omokhui International Limited (2018) LPELR-48693(CA).

The Respondent/Cross-Respondent has submitted that the only relevant issues formulated by the Appellant/Cross-Respondent surviving for determination of this appeal are issues 5 and 7. To my mind however, the surviving issues are issues 2, 3, 5, 6 and 7, which are:
2. Whether there was another agreement between the parties herein other than Exhibit C4. This is related to grounds three of the Amended Notice of Appeal
3. Whether the Appellant having regard to the totality of this case is in breach of the equipment leasing facility agreement between the Appellant and the Respondent. This is related to grounds four of the Amended Notice of Appeal
5. Whether the Respondent has proved that it is entitled to the sum of N131,927,000 from the Appellant as damages for loss of anticipated profit. This is related to ground six of the Amended Notice of Appeal.

6. Whether the lower Court is right in holding that the Respondent is entitled to a refund of N2 Million it paid to the Appellant towards the purchase of the Equipment. This is related to ground seven of the Amended Notice of Appeal.

7. Whether the lower Court was right in awarding 10% on the sum of N131,927,000.00 from the date of Judgment until liquidation and cost of N250,000. This is related to grounds eight of the Amended Notice of Appeal.

Issues 4 and 8 as distilled by the Appellant, are struck out. I shall now resolve the other issues distilled by the Appellant.

Issues 2 and 3
Issues two and three were argued together. The Appellant relied on the pleadings to submit that the agreement between the parties in this case was predicated on Exhibit C4, which was the offer letter dated 20/6/1997 by the Appellant and duly accepted by the Respondent. That there was no evidence before the lower Court to the effect that there was another agreement between the parties outside Exhibit C4, duly executed between the parties.

It was submitted that the lower Court was wrong when it came to the conclusion that Exhibit C4 was altered by Exhibit C39 and that the agreement between the parties was for the lease of the imported equipment. That Exhibit 39 was not part of the agreement between the parties as there is no evidence of acceptance of same by the Respondent to constitute a binding agreement for the lease of the imported equipment as contended by the lower Court. A valid contract must have, co-existing, the five ingredients of offer, acceptance, consideration, intention to create a legal relationship and capacity to contract must be present. See P.T.I v Uwamu (2001) 5 NWLR (PT 705) 122 at 122; Okubule v Oyagbola (1990) 4 NWLR (PT 147) 723. There was no evidence to show that the Terms and Conditions of Exhibit C 39 were accepted by the Respondent so as to constitute a binding agreement. The conduct of the parties throughout the transaction did not demonstrate that there was acceptance of Exhibit C39 by conduct, citing UBN Ltd v Ozigi (1991) 2 NWLR (PT 176) 677. There was no consensus ad idem between the parties to establish that Exhibit C39 formed a contract between the parties, which altered the original contract evidenced by Exhibit C4.

The Appellant argued that parties should be taken to have intended to be bound by the terms of the offer letter, Exhibit C4, which they have voluntarily entered into. The case of IDS Ltd v AIB Ltd (2002) NWLR (PT 758) 660 at 682 was cited and relied on. A party who signs an agreement is bound by it.

The Court was urged to interpret the agreement as evidenced by the Exhibit C4 in enforceable terms without more, and not to put upon the offer letter a construction different from that which the words of the provision impart. Cases relied on include: Astra Ind. Ltd v BNC (1997) 1 NWLR (PT 483) 474 at 493; Okonkwo v CCB Nig. Plc (2003) 8 NWLR (PT 822) 347 at 382; Jadesimi v Egbe (2003) 10 NWLR (PT 827) (uncompleted).

The Appellant submitted that the Respondent accepted the terms contained in Exhibit C4, but failed to comply with the terms and conditions as to the security for the said loan. The lease agreement was the only security document contained in Exhibit C4 that was duly executed and returned to the Appellant by the Respondent. The Appellant reasoned that the Respondent cannot be in breach of the terms and conditions of offer letter Exhibit C4 and at the same time be asserting that the equipment lease agreement was part of the security document required to be furnished to the Appellant as contained in Exhibit C4. The Appellant submitted that terms and condition precedent to the actualization of the Equipment lease agreement, which were the requisite fulfilment of the terms and condition of Exhibit C4 were neglected by the Respondent. That the lease agreement Exhibit C6 cannot be treated as a separate document or in isolation of the offer letter Exhibit C4. The Appellant argued that it cannot be said to be in breach of the equipment lease agreement when the Respondent was in serious breach of offer letter, Exhibit C4, in which Exhibit C39 was one of the terms to be fulfilled by the parties. That where the parties have embodied the terms of their contract in a written document extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument, citing Ihekwoaba v A.C.B Ltd (1998) 10 NWLR (PT 571) 590 at 621, Olaloye v Balogun (1990) 5 NWLR (PT 148) 24. The Court was urged to hold that the Respondent was in breach of Exhibit C4.

The Respondent in reply, submitted that Exhibit C4 offered to the Respondent two facilities, N50m Equipment Lease Facility and N10.25m Revolving Cash Advance Facility to the Respondent, and referred to various discussions and correspondences on the subject between the Respondent and the Appellant. The content of Exhibit C4 showed that the agreement of the parties went beyond the facility letter, as there was also an Equipment lease agreement signed by the parties herein.

Exhibit C4 stated the purposes of the two facilities to be granted by the Appellant to the Respondent be to finance the purchase of the required equipment for a Mini Steel Plant and to support the general working capital requirements of the plant respectively. Exhibit C1 was the application of the Respondent to the Appellant asking for project finance for a Mini Steel Plant from the Appellant in two alternative proposals both being loans which would be disbursed to the Respondent, making the Respondent a borrower of the Appellant, and the Appellant, a lender. However, the Appellant by Exhibit C4, instead of granting a loan, offered an Equipment lease facility under which the Appellant would purchase and own the equipment to be imported and the Appellant would then lease the equipment to the Respondent, which would be paying rentals from the date of the installation of the equipment at the Respondent’s factory, as stated in both Exhibit C4 and Exhibit C6, the Equipment Lease Agreement. The Court must look at the whole transaction including the correspondences to get the full intention of the parties that constitutes the contract between the parties, citing BFI Group Corporation v. Bureau of Public Enterprises (2012) 6 – 7 MJSC (Pt II) 124; (2012) 18 NWLR (Pt 1332) 209.

It was submitted that, even though the Appellant gave an equipment lease facility, it treated the transaction as if it were a loan. It was Exhibit C39 that clarified the position by stating clearly that it was restating the salient points agreed upon by the parties to include the fact that the leased assets will be excluded from the All-Assets Debenture, in view of the fact that the lease equipment will be vested in the Appellant at all times. That the lower Court was right in finding that Exhibit C39 did in fact show that the transaction between the parties was an equipment lease and not a loan. The allegations that the Respondent was in breach of Exhibit C4 were false.

On the allegation that the Respondent did not submit the perfection documents as stated in Exhibit C4, it was submitted that Exhibit C24 which is a letter dated 27/11/1997 by which the Respondent submitted all perfection documents. Exhibit C25 also showed the payment of N1m on behalf of the Respondent for the perfection which was never done. The Debenture that should have been prepared by the Appellant for the Respondent to sign was never prepared or given to the Respondent. The N1m paid by the Respondent was never refunded to the Respondent by the Appellant. The reason for non-preparation of the Debenture by the Appellant or non-execution of the Debenture was that the ownership of the equipment would reside in the Appellant and not in the Respondent as stated by the Appellant in their letter of 23/1/1998, Exhibit C39.

It was submitted that the totality of the evidence before the Court, showed that the Appellant collected the documents and used them to sell the equipment to a third party in fundamental violation of the contract of lease between the Appellant and the Respondent, and that the lower Court rightly to hold that the Appellant was in flagrant breach of the contract to supply equipment to be installed at the Respondent’s factory.

Resolution
The evidence before the lower Court revealed that the Respondent by Exhibit C1 applied to the Appellant for a loan to finance its Mini Steel Plant project and to support the general working capital requirements of the plant. The Appellant in Exhibit C1 gave two alternative proposals for loans, which would be disbursed to the Respondent. Exhibit C2 was a letter dated 6/9/1996, in which the Respondent provided further details of the project development and sought an approval of the loan in principle, but disbursement withheld until the conditions are fulfilled. In Exhibit C4, the Appellant referred to various discussions and correspondences between the parties and then offered a Bridging Loan Facility/Equipment Lease facility of N50 million, and a Revolving Cash Advance Facility of N10.25 million. By Exhibit C4, the N50 million was to be for the purpose of financing the purchase of the required equipment for establishment of a mini-steel plant. Security for the loan included an All-Assets debenture over the entire assets of the Respondent, including the leased equipment. It was to initially run for a maximum period of six months as an overdraft, but would be converted to an equipment lease, upon installation of the equipment.

Exhibit C6 was the Equipment Leasing Agreement. By the terms of Exhibits C4 and C6, the Appellant, as lessor, would purchase and own the equipment to be imported and lease the equipment to the Respondent. The Respondent, the lessee, would be paying rentals from the date of the installation of the equipment at the Respondent’s factory. Exhibit C39, dated 23/1/1998, from its explicit terms, formed part of the agreement of the parties. Exhibit C39 read in part:
“BANKING FACILITY
We refer to your discussion with our Bimbola Wright, and hereby restate the salient points agreed upon, as follows:
1. The leased assets will be excluded from the All Assets Debenture in view of the fact that ownership of the said equipment will be vested in the Bank at all times…” (Emphasis mine).

As rightly submitted by the Respondent, it is settled law that the Court has a duty to take into cognizance the comprehensive and unequivocal wordings of the series of agreements between the parties; BFI Group Corporation v. Bureau of Public Enterprises (supra), (2012) LPELR-9339(SC). I completely agree with the learned trial Judge that the agreement between the parties was covered by Exhibits C4, C6, and as altered by Exhibit C39. There was no evidence of the execution of an All-Assets Debenture. Rather, the evidence revealed that the agreement between the parties was for the lease of the imported equipment.

The evidence of the claimant was that when the equipment arrived at the port there were six containers. The Appellant failed to release copies of the shipping documents or release even the equipment to the Respondent or to its agent. Wema Bank Plc expressed an interest to take over the Mini Plant Steel Project and finance it. The Respondent notified the Appellant. In spite of this information, the Appellant persisted in its failure or refusal to release the shipping documents or even allow Wema Bank Plc inspect the equipment. This failure or refusal continued, notwithstanding many letters written to the Appellant on the matter, admitted as Exhibit C11, Exhibit C16, Exhibit C19, Exhibit C20, Exhibit C21, Exhibit C22, and Exhibit C30.

By Exhibit C14 dated 2/10/2002, Wema Bank Plc itself informed the Appellant of its interest in the equipment and asking for details of the equipment but the Appellant did not respond until 8/10/2003 by Exhibit C38, in which it merely confirmed that it made payment on behalf of the Respondent for the Iron Rods Rolling Mill Project. The Appellant’s reaction was in total violation of the equipment lease agreement in Exhibit C4, Exhibit C6 and Exhibit C39.

The evidence further revealed that the Appellant went on to advertise the equipment for sale in Guardian Newspaper, Exhibit C31. The Appellant even offered to sell the equipment for N4 million to one A.T. Abegunde of A.T.A & Company, by letter dated 2/4/2002, Exhibit C12.

The evidence also showed that, in order to avert a total frustration of its Mini Steel Plant Project by the Appellant and to save the investments it already made, the Respondent offered to pay the Appellant the sum of N6 million to get release of the equipment and another N12.5 million when the Respondent starts production. In spite of the higher offer made by the Respondent agreed to by the Appellant, evidenced by Exhibit C32, Exhibit C35, Exhibit C36, Exhibit C37, and notwithstanding the fact that the Respondent, on the agreement paid an initial N2 million, Exhibit C18 and Exhibit C20, the Appellant again breached the agreement. The Appellant, without reference to the Respondent, sold the equipment to a third party and without returning the Respondent’s money.

The learned trial Judge found and held, pages 982, 983 of the Record of Appeal:
“I have found above that the parties had an agreement for an equipment lease facility. According to the terms of the lease facility in Exhibit C3, the lease was to take effect upon the installation of the equipment. Both CW1 and DW1 testified that the equipment was never installed…
The defendant alleged that its failure to install the equipment was as a result of the claimant’s failure to satisfy the security requirement. The question to be asked is whether the claimant was obligated to supply security for an agreement which was yet to commence? I think not. The defendant had the responsibility to fulfill its own side of the bargain in order for the claimant to be able to fulfill its own. In addition to the commencement of the lease, the parties had executed a lease agreement Exhibit C6, and the claimant had issued a certificate of acceptance as well as a letter of accord where it agreed that the defendant, would be the owner of the leased equipment for the duration of the lease.
Now, the defendant was the owner of the equipment, Yet the defendant expected the claimant to provide security for the lease of equipment owned by the defendant before the equipment lease commenced. I am not satisfied that this was the intention of the parties when they agreed to enter into the lease agreement, more so since the lease was yet to commence and the equipment was yet to be installed.
Based on the foregoing, therefore, I find that the defendant was in breach of the equipment leasing facility agreement and between it and the claimant for its failure to enable the installation of the equipment at the claimant’s factory. I find and hold further that the failure of the defendant to perform its obligation under the lease agreement foreclosed the performance by the claimant under the same contract, and that the claimant is therefore entitled to treat the contract as at an end. I am reinforced in this view by the fact that the defendant was ready to put the equipment on sale and in fact did accept an offer for the sale of the agreement and also by the defendant’s willingness to negotiate the sale of the equipment to the claimant.”

These findings and conclusion are in line with the evidence adduced before the lower Court. I see no reason to disturb the same. I therefore resolve issues 3 and 4 against the Appellant and in favour of the Respondent.

Issues 5, 6 and 7
The lower Court awarded a sum of N131,927,000.00 to the Respondent as damages for loss of anticipated profit. It was submitted that the Respondent did not particularize the sum of N131,927,000.00 as loss of anticipated profit in its pleading and same was not strictly proved. The particulars of special damages highlighted by the Respondent in its Statement of Claim at page 544 of the Record of Appeal, will reveal that N131,927,000.00 was not particularized as loss of anticipated profit.

It was submitted that a claim for loss of profit or anticipated profit represents a loss that has crystalized into special damages which in effect is pecuniary losses that must be strictly proved, but which the Respondent failed to do. The decisions in Z. P. Ind Ltd v Samotech Ltd (2007) 16 NWLR (Part 1060) 315 at 344, West African Shipping Agency Nig Ltd v Musa Kalla (1978) 3 S.C 21 and UBA Plc v B.TL Ind Ltd (2006) 19 NWLR (Part 1013) 61 were cited and relied on.

The lower Court held that the Respondent by a letter dated 7/5/1996, Exhibit C1, forwarded a projected profit and loss statement for the project where it was projected that the Respondent would make a net profit of N131,927,000.00 at the end of the eighth quarter after commencing operations. That this was part of the Respondent’s proposal to the Appellant to make the offer in Exhibit C4. It was submitted that this finding was based on wrong a principal of law, relying on Artra Ind. Ltd v N.B.C.I. (1997) 1 NWLR (PART 483) 574 at 597, Barau v Cubitts Nig. Ltd (1990) 5 NWLR (PART 152) 630, Uwa Printers Ltd v Investment Trust Ltd (1988) 5 NWLR (PT 92) 110 at 122. Relying on these authorities, the Court was urged to set aside the sum of N131,927,000.00 awarded by the lower Court in favour of the Respondent as loss of anticipated profit which was predicated on a projection in a feasibility study Exhibit C1, pages 554-567 of the Record of Appeal.

It was further submitted that the Respondent was not entitled to loss of anticipated profit. The Court was urged to hold that it was not enough for the said sum to be a mere proposal or speculative, it must be particularized in the pleading and strictly proved as required by law.

On the holding that the Respondent was entitled to a refund of the N2Million it paid to the Appellant towards the purchase of the equipment, it was submitted that the decision of the lower Court was against the weight of evidence. The said sum of N2Million was part payment of the initial payment of N6Million as agreed by the parties before the release of the equipment to the Respondent. The evidence before the lower Court was that the agreed N6 Million was not completed as agreed by the parties. The lower Court did not make any findings as regard the fate of the equipment before ordering the Appellant to refund the sum of N2 Million paid by the Respondent for the release of the equipment.

The Court was urged to hold that the exercise of the lower Court’s discretion in ordering the Appellant to refund the sum of N2 Million was not judicial and judicious, citing Eronini v Iheuko (1989) 2 NWLR (PT 101) 46 and University of Lagos v Aigoro (1985) 1 NWLR (PT. 1) 143.

It was submitted that the Respondent did not plead payment of interest in its Amended Statement of Claim, pages 529-530 of the Record of Appeal. There was no evidence whatsoever about the rate of interest or interest agreed upon by the parties and the basis upon which interest is to be computed, citing Himma Merchant Ltd v Aliyu (1994) 5 NWLR (PT 347) 667 at 676, Ekwunife v Wayne (West Africa) Ltd (1989) 5 NWLR (PT 122) 422 at 445.

It was submitted that the award of post-judgment interest of 10% per annum on the sum of N131,927,000 being damages for anticipated loss of profit was unwarranted, unsolicited, punitive and excessive as same was a wrong exercise of discretion by the lower Court. The Court was urged to set same aside.

It was further contended that the sum of N250,000.00 awarded as cost against the Appellant was also a wrong exercise of discretion by the lower Court as same was excessive and punitive. The Court was also urged to set same aside for being excessive and unreasonable as costs follow events, relying on Adelakun v Oruku (2006) 11 NWLR (PT. 992) 625 at 646; Chijioke V Soetan (2006) 11 NWLR (PT. 990) 179.

For the Respondent, it was reiterated that there was no valid defence to controvert or contradict the Respondent’s Amended Statement of Claim of the Respondent of 23/10/2012. The special damages as pleaded and proved by the Respondent were of three types: First was the amount of US$150,000 paid by the Respondent to Tirupati Powercon (P) Ltd India the first manufacturers of the machines to be imported with the full knowledge of the Appellant, as this was part of the application submitted by the Respondent to the Appellant by its letter dated 7/5/1996 marked Exhibit C1, which was not awarded by the lower Court. The second was the consultants’ fees, which was not also awarded by the lower Court. The third was the amount claimed by the Respondent as compensation for the Appellant’s deliberate breach and frustration of the Lease transaction between the Appellant and the Respondent, which caused a huge and incalculable loss to the Respondent. It was on this alone the lower Court awarded a sum of N131,927,000.00 to the Respondent.

It was argued that the Court can act on uncontradicted evidence to grant special damages, as in this case where the particulars were clearly pleaded in the Respondent’s Amended Statement of Claim of 23/10/2012. The Respondent reasoned that the learned trial Court was right in holding that the Appellant decided to grant the lease facility on the basis of the projected cash flows submitted to the Appellant by the Respondent in Exhibit C1. The cash flows were not speculative by any means but were the basis of the Bank entering into the transaction. It was posited that the Respondent was entitled to loss of business profits as demonstrated in Exhibit C1 from 1999 to 2001 for eight quarters as awarded by the lower Court as being proven. That the lower Court rightly found that all efforts of the Respondent to mitigate its loss was thwarted by the Appellant by not even allowing physical inspection by Wema Bank Plc which wrote (Exhibit C14) to the Appellant indicating its interest in taking over the financing of the project.

The Appellant deliberately withheld the shipping documents and the equipment from the Respondent despite so many letters written to the Appellant on this matter, admitted as Exhibit C11, Exhibit C16, Exhibit C19, Exhibit C20, Exhibit C21, Exhibit C22, and Exhibit C30. The decisions in Arabambi & Anor v. Advance Beverages Industries Ltd (2005) 19 NWLR (Pt. 959) 1; (2006) 3 M J S C 61 at pages 98 – 99, Nigerian Bank for Commerce and Industry v. Integrated Gas (Nigeria) Ltd & Anor (2005) 4 NWLR (Pt.916) 617; (2005) 3 M.J.S.C. 40 were cited and relied on. Reliance was also placed on The Law & Practice of International Finance Series Volume 3 on International Loans, Bonds Guarantees, Legal opinions 2nd Edition by Philip R. Wood at page 41 in submitting that damages may include loss of business profits where such loss was within the parties’ contemplation.

It was submitted that the lower Court was right in holding that the Respondent was entitled to refund of N2 Million, it paid to the Appellant towards the purchase of the equipment, having regard to the evidence before it. The Appellant had deceptively collected the money from the Respondent, which the Respondent had paid to enable it secure the release of the equipment which the Appellant withheld in clear breach of the contract of equipment lease. At this time, the Appellant had already disposed of the equipment, without notice to the Respondent.

On the award of post-judgment interest, it was submitted that the lower Court was empowered to award post-judgment interest, which Order 39 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 2019 fixed at a rate not less than 10% per annum to be paid upon judgment. The decision in G.K.F Investment Nigeria Ltd v. Nigeria Telecommunications Plc (2009) 15 NWLR (Pt. 1164) 344, (2009) 7 MJSC (Pt. 1) 157 was cited and relied on. That the only typographical error committed by the lower Court was that the phrase “per annum” was omitted, which this Court was entitled to correct, citing Order 4 Rules 1, 3, and 4 of the Court of Appeal Rules, 2021.

On the issue of costs of N250,000.00, the Respondent reminded that the case commenced in 2005 and did not end until September 2016, a period of eleven years. That costs being at the discretion of the trial Court, the Appellate Court will not interfere, unless it is clearly proven that the discretion was not exercised judicially and judiciously.

In the reply brief, the Appellant largely rehashed previous arguments, citing further judicial authorities.

Resolution
The point had been made that, in the absence of any competent pleadings by the Appellant, there would be no requirement to go into elaborate evaluation of the evidence tendered by only one party except to ensure that the evidence actually tendered proved the claim. The onus on the claimant will be discharged on minimal evidence, there being no evidence to put on the other side of the imaginary scale. See Bua v Dauda (supra); Bauchi State Government v. Gumau & Anor (supra); Billie v Multi-Links Telecoms Ltd (supra).

In line with their pleadings, CW1 stated in paragraph 5 of his written depositions, that the Respondent in approaching the Appellant to finance its steel project, had presented its Promoter’s Projected return on investment as well as projected cash flow/Sale revenue and profit from the mini steel plant project. That the Appellant, after appraising the projected financials, agreed to partly fund the project. The Respondent’s letter dated 7/5/1996, to which was attached the Projected return on investment as well as projected Cash Flow/Sale Revenue and profit from the mini steel plant project was Exhibit C1. The facility offer letter from the Appellant, dated 20/7/1997, was Exhibit C4. The lower Court found and held that the Appellant had acted in breach of the equipment lease agreement it had with the Respondent.

Now, it is the established position of the law that special damages must not only be specially pleaded, but must also be strictly proved. See Ahmed v CBN (2012) LPELR-9341(SC), Onyiorah v Onyiorah (2019) LPELR-49096(SC) and Daniel Holdings Ltd v UBA Plc (2005) LPELR-922(SC).

The Court should not act within the realm of conjecture or rely on a speculated estimate in awarding special damages. The Supreme Court in A G Oyo State & Anor v Fairlakes Hotels Ltd & Anor (supra) at pages 48 – 50 of the E-Report, said:
“This Court recently in Uwa Printers Ltd v. Investment Trust Ltd (1988) 5 N.W.L.R. (Pt.92) 110, and earlier on in J.K. Odumosu v. A.C.B. (1976) 11 S.C. 55, has held that anticipated profits must be established by evidence. The onus is evidently on the plaintiff to prove its anticipated profits. A priori, the onus is on the plaintiff to establish the accuracy of the projected gross profits in exh. B tendered by it in proof of its claim. So, if for any reason, evidence which would help the trial Court to assess the accuracy of the projected profits is inadequate, lacking or not convincing, it is the plaintiff who will fail in its claim for anticipated profits.
From what I have said earlier on in this judgment, the onus was on the plaintiff, in my judgment, to lead evidence in this case showing that the probabilities upon which exh. B was based are valid, before there will be any onus on the defendants to show that the projected profits were improbable if they intended to challenge the evidence on the head of claim in question. See Section 136(1) and (2) of the Evidence Act…
The plaintiff has not, by evidence, as I have shown above, established prima facie the accuracy of the projected profits in Exh. B. In the circumstances, it cannot be said that there is any onus on the defendants to show that the projected profits were improbable, if they intended to challenge the evidence in that regard.”
See also Mobil Producing Nigeria Unlimited v. Nsesco Nigeria Limited (2010) LPELR-4491(CA), Eneh v. Ozor & Anor (2016) LPELR-40830(SC), Confidence Bureau De Change v. Ndeanefo (supra), Umeanozie v. First Bank of Nigeria Plc (2016) LPELR-41038(CA), Okonkwo v. Union Homes Savings and Loans Plc (2020) LPELR-51709(CA). The burden to prove special damage is strict. That burden cannot now be passed on to the defendant by default. A claimant succeeds on the strength of his case and not on the weakness of the defendant. See Insurance Brokers of Nigeria v. Atlantic Textiles Manufacturing Company Limited (1996) LPELR-1518(SC) and Oguejiofor v. Siemens Limited (2007) LPELR-8401(CA).

It is therefore, clear that the Respondent failed to prove it was entitled to the sum of N131,927,000 from the Appellant as damages for loss of anticipated profit. Accordingly, the said award is hereby set aside. Issue 5 is resolved in favour of the Appellant.

The evidence of CW1 and CW2, which was not shaken under cross-examination, was clear on the payment of the sum of N2 million to the Appellant. The Respondent was, in the circumstance of the failure of the purpose for the payment, entitled to a refund of the said N2 million from the Appellant. Issue 6 is resolved against the Appellant.

On the issue of award of post-judgment interest, the Appellant appears to have mixed up the award of a pre-judgment interest and a post-judgment interest.

A pre-judgment interest can be claimed and awarded as of right where there exists an agreement to this effect entered into by the parties, or where there is a mercantile or trade custom that provides for pre-judgment interest, or under a principle of equity such as breach of a fiduciary relationship. See Cappa & D’alberto Nigeria Plc v. Nigeria Deposit Insurance Corporation (2021) LPELR-53379(SC); Nkwo Market Community Bank (Nigeria) Limited v. Obi (2010) LPELR-2051(SC). In such a case, the claim for pre-judgment interest must be specifically pleaded and proved. See Nigeria Ports Authority v. Aminu Ibrahim And Company & Anor (2018) LPELR-44464(SC).

The power to award a post-judgment interest by the trial Court is statutory, based on the particular Rules of Court, but usually not exceeding 10% per annum, to be paid upon judgment, commencing from the date thereof, or afterwards, as the case may be. Although a claimant has not specifically asked for post-judgment interest, the trial Court may still make such order. That is to say, a claimant may be granted post-judgment interest, even though he has not specifically asked for one. See Diamond Bank Limited v. Partnership Investment Company Limited & Anor (2009) LPELR-939(SC); G.K.F Investment Nigeria Ltd v. Nigeria Telecommunications Plc (supra), (2009) LPELR-1294(SC).

An award of post-judgment interest by the learned trial Judge was therefore in line with the law. However, the grant of anticipated profits, on which the post-judgment interest was specifically tied to, has been set aside.

It is trite that a successful party in an action in Court is entitled to costs, unless there are special reasons why he should be deprived of his entitlement. The object of awarding costs is not to punish the unsuccessful litigant, but to compensate the successful party, wholly or partially, for the expenses to which he has been put by having to come to Court.

See Ladega v. Akinliyi & Ors (1969) LPELR-15500(SC), Layinka & Anor v. Makinde & Ors (2002) LPELR-1770(SC). Thus, in making an award of costs, the Court must act judiciously and judicially. That is to say with correct and convincing reasons; Cappa & D’alberto Nigeria Plc v. Nigeria Deposit Insurance Corporation (supra); Therefore, the Appellate Court will not usually interfere, unless satisfied that the trial Judge did not exercise his discretion, or did not do so judicially. See NBCI v Alfijir (Mining) Nigeria Ltd (1999) LPELR-2015(SC).

As the Court was reminded by the Respondent, this case commenced in 2005 and ended in September 2016, a period of eleven years. I see absolutely nothing wrong with the award of costs of N250,000.00. Issue 7 is thus resolved against the Appellant.

In all, this appeal succeeds in part. It is hereby ordered as follows:
1. The award of damages of N131,927,000.00 for loss of anticipated profits against the Appellant and in favour of the Respondent is hereby set aside.
2. The Appellant shall refund the sum of N2 million to the Respondent.
3. The award of costs of N250,000.00 by the lower Court against the Appellant in favour of the Respondent is hereby affirmed.
4. It is further ordered that the Appellant shall pay post-judgment interest at the rate of 10% per annum on the judgment sum from today until it is fully paid.
5. Parties shall bear their costs.

CROSS-APPEAL
The Cross-Appellant had distilled the following seven issues for determination of the cross-appeal:
1. Whether the lower Court was right in not nullifying the Appellant’s Amended Statement of Defence and counter-claim dated 9th January, 2013 which sought to amend the Appellant’s Amended Statement of Defence and counter-claim dated 24th February, 2006 which was signed by a law firm and was therefore null and void. This is related to ground one (1) of the Cross-Appeal.
2. Whether the lower Court should not have treated the Respondent’s pleadings and evidence as unchallenged and uncontroverted when the Appellant in law had no defence whatsoever to the claims of the Respondent. This is related to ground two (2) of the cross-appeal.
3. Whether the lower Court was right in holding that the Appellant was not in breach of the letter of credit on the ground that the Appellant did not cancel the letter of credit but that the letter of credit lapsed because the beneficiary of the letter of credit did not supply the equipment within the six (6) months period stipulated in the letter of credit. This is related to ground three (3) of the cross-appeal.
4. Whether the lower Court was right in holding that there was a loan between the Appellant and the Respondent which was later converted to a lease by Exhibit C 39. This is related to ground four (4) of the cross-appeal.
5. Whether the lower Court was right in holding that the Respondent was not entitled to damages for the US$150,000 deposit the Respondent paid to the beneficiary of the letter of credit, the US$95,820.00 being the various consultants’ fees and expenses and the N960,000.00 salaries for the technical staff engaged for the project by the Respondent because there was no specific agreement on these items between the Appellant and the Respondent. This is related to ground five (5) of the cross-appeal
6. Whether the lower Court was right in restricting the special damages awarded for loss of business profits to only eight (8) quarters that is, two (2) years when the evidence was abundant that the Appellant frustrated the Respondent’s project for six (6) years from 1999 to 2005. This is related to ground six (6) of the cross-appeal
7. Whether the lower Court was right in not making specific finding on the number of containers cleared by the Appellant when the Appellant’s sole witness swore on oath that the Appellant cleared the Six (6) containers. This is related to ground seven (7) of the cross-appeal.

Issues 1 and 2 have already been resolved in favour of the Cross-Appellant in the main appeal, and I adopt the said resolution herein. Issues 3 – 7 shall now be resolved.

Issue 3
In order to purchase the equipment, the Cross-Respondent issued the initial irrevocable and confirmed letter of credit, Exhibit C3 on 13/3/1997 in one tranche of US$750,000 equivalent of N50m. But the Cross-Respondent unilaterally cancelled Exhibit C3 as stated by the Cross-Respondent in Exhibit C28.

The Cross-Appellant contended that the finding of the learned trial judge that there was no evidence of cancellation of the letter of credit but that the said letter of credit lapsed because the beneficiary of the letter of credit did not supply the equipment for six months, as stipulated in the latter, was perverse. The Cross-Respondent had written a letter dated 23/3/1998, Exhibit C28, in which clearly stated:
“Please arrange to forward your cheque for the sum of N638,557.50 in respect of LC NO 1/970066 which was established and canceled on your behalf.”

Exhibit C28 went on to state that the sum of N300,525.00, being cancellation charges was to be paid by the Cross-Appellant to the Cross-Respondent. That Exhibit C28 served as admission against interest.

The Cross-Appellant had requested amendments by letter dated 6/8/1997, Exhibit C7, which could not, by International Trade Law be partially accepted by the Cross-Respondent. Reliance was placed on Article 9 d(iv) of the International Chamber of Commerce Uniform Customs and Practice for Documentary Credits 1993 Revision, Exhibit C51, which made it clear that partial acceptance of amendment was not allowed. But that the Cross-Respondent, by Exhibit C8, only amended the pre-shipment agent, without extending the time for the shipment as requested in the same letter, Exhibit C7, by the Cross-Appellant. That this partial acceptance of amendment by the Cross-Respondent was repugnant to International Trade Law as stated in Article 9d(iv) of Exhibit C51. That if there was any lapse of the letter of credit, it was the sole fault and responsibility of the Cross-Respondent for partially amending the credit contrary to international law and the established international trade practice.

In order to save the transaction from being completely aborted by this breach by the Cross-Respondent, the Cross-Appellant informed the Cross-Respondent of another reputable vendor in UK of the type of equipment needed for the Mini Steel Plant project. But rather than issue a letter of credit for one tranche of US$750,000 as was earlier done, the Cross-Respondent issued a letter of credit of six tranches of $125,000, Exhibit C10.

Out of these six tranches payable on the second letter of credit, the Cross-Respondent paid for only three tranches, totaling $375,000 equivalent of N25m as confirmed by Exhibit C38, a letter from the Cross-Respondent to Wema Bank Plc. Despite this obvious fact that the Cross-Respondent paid for only three tranches of $125,000 each, the Cross-Respondent continued to claim that it disbursed N50m equivalent of $750,000. Reliance was placed on Exhibit C51, the International Chamber of Commerce Uniform Customs and Practices for Documentary Credit 1993 Revision (UCP 500), particularly Article 9d, applicable at the material time of this transaction. The decisions in Attorney General Bendel State & Ors v United Bank for Africa Ltd (1986) 4 NWLR (Pt 37) 547; Akinsanya v. United Bank for Africa Ltd (1986) 4 NWLR (Pt 35) 273; Union Bank of Nigeria Ltd v Osezuah (1997) 2 NWLR (Pt 485) 28 at 40 – 41 were cited and relied on. Reference was also made to “Bills of Lading and Bankers’ Documentary Credits” Third Edition 1998 by Paul Todd at page 34.

In reply, the Cross-Respondent submitted that the mechanism of the letter of credit LC NO:1/970066, Exhibit C3, was frustrated by the Cross-Appellant on one hand and the supplier on another hand. The non-shipment of the goods to Nigeria by Tiruparti Powercon (P) Ltd, India within the six months stipulated was responsible for the lapse of the Letters of Credit, referring to Exhibit C9. That the unfounded allegation by the Indian supplier refusing to accept any confirmed or unconfirmed Letter of Credit from Nigeria to the chagrin of the Cross Respondent Bank was also responsible for the lapse of the Letters of Credit.

As a result of these delays and the fact that the Cross-Appellant could not come up with satisfactory explanation as to why there were delays in the shipment of the Iron Machinery for almost six months by the supplier, the Cross-Respondent Bank had no option than to open on 23/3/1998, another Letter of Credit in favour of Hanos Limited, a company based in UK, which was also introduced to the Cross Respondent by the Cross-Appellant.

Cross-Respondent submitted that Exhibit C3, the first letter of credit issued by the Appellant, speaks for itself and clearly showed its validity period which was from 13/3/1997 to 13/9/1997. It is settled law that a document tendered in Court is the best proof of its contents, citing Omoniyi v. Alabi (2004) 6 NWLR (PT. 870) 551, Att.-Gen., Bendel State v. U.B.A. (1986) 4 NWLR (PT.37) 551, Jiaza v. Bamgbose (1999) 7 NWLR (PT.610) 197, Koiki v. Magnusson (1999) 8 NWLR (PT.615) 492.

It was argued that Article 9(d) of the International Chamber of Commerce Uniform Customs and Practices for Documentary Credit 1993 Revision (UCP 500), which was cited by the Cross-Appellant in its Brief of Argument can only apply to a subsisting Letter of Credit and not to one that had lapsed as in this case. Further, that Exhibit C28 was written several months after Exhibit C3 had lapsed and not during its validity period. The Court was urged to uphold the lower Court’s position that the Appellant did not breach the Letter of Credit by cancelling same but that rather the said letter of credit, Exhibit C3, had lapsed due to the non-shipment of the goods to Nigeria by Tiruparti Powercon (P) Ltd, India, within the six months stipulated in the said Letters of Credit, Exhibit C3, and for which it was issued.

Resolution
A Letter of Credit represents an instrument under which the issuer, usually a bank, at a customer’s request, agrees to honour a draft or other demand for payment made by a third party, the beneficiary, as long as the draft or demand complies with specified conditions, and regardless of whether any underlying agreement between the customer and the beneficiary is satisfied, Black’s Law Dictionary 9th Edition, 2009 at 987; Imoka & Anor v. UBA Plc (2012) LPELR-19837(CA); Nwangwu v FBN (2008) LPELR-4478(CA). (Emphasis mine).
Article 2 of the Uniform Customs and Practice for Documentary Credits (1993 Revision) ICC No 500 (UCP), Exhibit C51, which the Letter of Credit issued by the Appellant/Cross Respondent was subject to, defines the expressions ‘documentary credits(s)’ and ‘credits(s)’ used therein to mean any arrangement, however named or described, whereby a bank (the issuing bank), acting at the request and in accordance with the instructions of a customer (the Applicant) or on its behalf, (i) is to make a payment to or to the order of a third party (the Beneficiary) or is to accept and pay bills of exchange (Draft(s)) drawn by the Beneficiary, or (ii) authorises another bank to effect such payment, or to accept and pay such bills of exchange (Draft(s)), or (iii) authorises another bank to negotiate, against stipulated document(s), provided that the terms and conditions of the Credit are complied with.
Expounding further on the nature of letters of credit, the Supreme Court, per Bello, JSC (as he then was) in Nasaralai Enterprises Ltd v. Arab Bank (Nig) Ltd at pages 20-21 of the E-Report, cited with approval the case of United City (Investments) Ltd. v. Royal Bank of Canada (1983) A.C. 168, thus:
“In the recent case of United City (Investments) Ltd v. Royal Bank of Canada (1983) A.C. 168 at 182-183, Lord Diplock explained that four contracts are involved in a commercial letter of credit. He said –
“It is trite law that there are four autonomous though interconnected contractual relationships involved.
(1) the underlying contract for the sale of goods, to which the only parties are the buyer and the seller; (2) the contract between the buyer and the issuing bank under which the latter agrees to issue the credit and either itself or through a confirming bank to notify the credit to the seller and to make payments to or to the order of the seller (or to pay, accept or negotiate bills of exchange drawn by the seller) against presentation of stipulated documents and the buyer agrees to reimburse the issuing bank for payments made under the credit. For such reimbursement, the stipulated documents, if they include a document of title such as a bill of lading, constitute a security available to the issuing bank; (3) if payment is to be made through a confirming bank the contract between the issuing bank and the confirming bank authorising and requiring the latter to make such payments and to remit the stipulated documents to the issuing bank when they are received, the issuing bank in turn agreeing to reimburse the confirming bank for payments made under the credit; (4) the contract between the confirming bank and the seller under which the confirming bank undertakes to pay to the seller (or to accept or negotiate without recourse to drawer bills of exchange drawn by him) up to the amount of the credit against presentation of the stipulated documents.”

Of relevance in this appeal is the second contractual relationship elucidated above, which is: the contract between the buyer and the issuing bank under which the latter agrees to issue the credit and either itself or through a confirming bank to notify the credit to the seller and to make payments to or to the order of the seller (or to pay, accept or negotiate bills of exchange drawn by the seller) against presentation of stipulated documents, and the buyer agrees to reimburse the issuing bank for payments made under the credit. The issuing bank here can be depicted as the Cross Respondent while Cross-Appellant was the buyer. Tirupati Powercon (P) Ltd, India, was the seller.

It must be emphasized that, the letter of credit would usually be honoured, as long as the draft or demand complies with specified conditions, and regardless of whether any underlying agreement between the customer and the beneficiary is satisfied. See Edward Owen Engineering Ltd. v. Barclays Bank International Ltd & Umma Bank (1978) 1 Lloyd’s Rep. 166 at 170, cited with approval in Nasaralai Enterprises Ltd v. Arab Bank (Nig) Ltd at page 23 of the E-Report. See also Article 9 (a) of the UCP, which provides:
“An Irrevocable Credit constitutes a definite undertaking of the issuing bank, provided that the stipulated documents are presented to the Nominated Bank or to the issuing bank and that the terms and conditions of the credit are complied with.”
Therefore, the bank is under a contractual obligation to the seller to honour the credit, as long as the terms and conditions of the Credit are complied with. See Akinsanya v. UBA Ltd (1986) LPELR-355(SC); Nwangwu v. First Bank of Nigeria Plc (supra).

The initial letter of credit no. 1/970066 issued by the Cross-Respondent, Exhibit C3, dated 13/3/1997, in favour of Tirupati Powercon (P) Ltd in the sum of US$750,000.00 to Midland Bank Plc, London clearly gave 23/8/1997 as the last date for presentation of the shipment documents, although late presentation within the validity of Exhibit C3 was acceptable. The special instruction was that:
“THIS CREDIT IS VALID TILL SEPTEMBER 13, 1997.”

Exhibit C7 was a letter dated 6/8/1997, written by the Cross-Appellant to the Cross Respondent, requesting for an amendment of L/C No 1/970066, to change the inspection agents as well as the last date for presentation of the shipment documents to now be 31/12/1997, as well as the Special Instruction to be amended to read:
“This Credit is valid till 31ST JAN., 1988.”

The Cross-Respondent effected these amendments on 12/8/1997, Exhibit C8.

The evidence was however that the supplier, Tirupati Powercon (P) Ltd did not supply the equipment before 13/9/1997. In the letter dated 14/1/1998, Exhibit C9, written by the Cross-Respondent to the Export Credit Guarantee Corporation of India, in response to their enquiry about L/C 1/970066 stated:
“Non-shipment by Tirupati Powercon (P) Ltd, India, within the six (6) months stipulated was responsible for the lapse of the above-mentioned L.C. and Midland Bank’s withdrawal of confirmation.”

On 23/3/1998, the Cross-Respondent wrote a letter to the Cross-Appellant, Exhibit C28, stating:
“L.C. CHARGES
Please arrange to forward your cheque for the sum of N638, 557.50 in respect of LC No 1/970066 which was established and cancelled on your behalf.”

Details of the charges were given. For the establishment of the LC was N320, 063.25, and for the cancellation was N318, 491.25.
Under cross-examination, CW1 admitted that:
“The suppliers could not ship the equipments within 6 months because the inspection Agents were changed.”

In evaluating the evidence, the learned trial Judge held, page 978 of the Record of Appeal:
“Although the claimant contends that the defendant had unilaterally cancelled Exhibit C4, this is not borne out by the evidence before the Court. By a letter dated February 23, 1998 (Exhibit C29), the defendant agreed to change the seller to a UK based supplier upon the request of the claimant (by letter dated February 19, 1998) subject to the establishment of more than one tranche of letters of credit predicated upon the defendant’s letter dated February 16, 1998. Subsequently, the bank opened three irrevocable letters of credit, as admitted by both parties (Exhibits C19 and C38), in three tranches of US$125,000.00 each making a total of US$375,000.00. However, only one of these letters of credit No: 1/980070 was put in evidence by the claimant as exhibit C10.”
Exhibit C10 was opened in favour of Hanos Ltd (the new supplier of the equipment in the UK given by the claimant) in the amount of US$750,000.00 with only US$125,000.00 to be confirmed by Midland Bank Plc which was to debit the defendant’s account No: 37379725 in the amount by the defendant on 23rd March 1998.”

Citing Article 9(a) of the UCP, already reproduced above, the learned trial Judge further held and concluded, page 978 -979:
“Thus, it is only, if the terms and conditions listed in Exhibit C4 had been compiled with by the seller (Tirupati) that the defendant would be bound to make payment to it. However, it is clear from the evidence before this Court, which is not denied by the Claimant, that the first seller in whose favour Exhibit C3 had been issued, had failed to comply with the terms and conditions of Exhibit C3 before the August 23rd deadline for presentation of the shipping documents and before the September 13, 1997 expiration date of exhibit C3.
Exhibit C3 was therefore not irrevocable without limit but was conditional upon the performance of the terms and conditions by the seller before the expiration date of its validity. In addition, it is clear upon the evidence before the Court that the claimant itself had accepted that Tinupati had failed to meet the terms and conditions in Exhibit C3, hence the need to source for another supplier in the UK. I find and hold therefore that the defendant had not unilaterally cancelled Exhibit C3, but rather Exhibit C3 had lapsed upon the non-performance of Tinupati.”
The findings and conclusion of the learned trial Judge are in line with the evidence adduced. I agree completely with the learned trial Judge that Exhibit C3 was not irrevocable without limit. Even as accepted by the Respondent, the terms and conditions of Exhibit C3 were not complied with. Exhibit C3 was therefore not unilaterally cancelled by the Cross-Respondent. Issue 3 is resolved against the Cross-Appellant.

Issue 4
On whether there was a loan between the Appellant and the Respondent that was later converted to a lease by Exhibit C 39, the Cross-Appellant relied on the agreement between the parties. Exhibit C4 was the Offer Letter given by the Cross-Respondent which was headed as two (2) facilities – one was the N50m lease facility and the other was the N10.25 million Revolving Cash Advance facility. As was found by the learned trial Judge no debit was made on the statement of account of the Cross-Appellant by the Cross-Respondent until 31/3/1999. There was no bridging loan given by the Cross-Respondent. Rather, Exhibit C39 by which the Cross-Respondent excluded the equipment to be imported and leased to the Cross-Appellant from the All-Assets Debenture, was an affirmation of the nature of the transaction between the parties as a lease. There was no loan given to the Cross-Appellant by the Cross-Respondent.

For the Cross-Respondent, it was argued that there was loan from the Cross-Respondent to the Cross-Appellant, relying on the terms of Exhibit C4, which stated that the N50 million would commence as a bridging loan facility for a six-month lease-in-process period in the nature of an overdraft and be subsequently converted to an equipment lease from the date of installation of the equipment to be imported. And, that it would run for 30 months excluding the lease- in- process period. That this offer, which formed the basis of the transaction between the Cross-Respondent and the Cross-Appellant, was duly accepted and executed by the Cross-Appellant.

The Cross-Respondent submitted that where a document is tendered in evidence, it is the best proof of its contents, citing Omoniyi v Alabi (supra); Att.-Gen. Bendel State v. U.B.A. (supra). The Court was urged to rely on the documents placed before it, particularly Exhibit C4, which shows that there was a loan between the Cross-Respondent and the Cross-Appellant.

Resolution
The resolution of this issue would be similar to the resolution of issue 2 of the main appeal. The Court has a duty to take into cognizance the comprehensive and unequivocal wordings of the series of agreements between the parties. See BFI Group Corporation v. Bureau of Public Enterprises (supra). I completely agree with the learned trial Judge that the agreement between the parties was covered by Exhibit C4, C6, and as altered by Exhibit C39. There was no evidence of the execution of an All-Assets Debenture. Rather, the agreement between the parties was for the lease of the imported equipment. There was no loan extended to the Cross-Appellant from the Cross-Respondent. Issue 4 is resolved in favour of the Cross-Appellant.

Issue 5
The Cross-Appellant challenged the holding of the lower Court that it was not entitled to damages for the US$150,000 deposit it paid to the beneficiary of the letter of credit, the US$95,820.00 being the various consultants’ fees and expenses, and the N960,000.00 salaries for the technical staff engaged for the project by the Cross-Appellant, because there was no specific agreement on these items between the Appellant and the Respondent.

The Cross-Appellant relied on the evidence adduced as to the fact that the project by the Cross-Appellant to be financed by the Cross-Respondent was a very technical project which required the foreign consultants as it was to be the first Mini steel manufacturing plant in Nigeria. The Cross-Appellant ensured that the Cross-Respondent was carried along with the expenses the Cross-Appellant was making in terms of getting the land and building and all the technical staff and consultants in place which were necessary for the project. The Cross-Appellant relied on Chitty on Contracts Volume 1 General Principles 31st Edition paragraph 26 – 029 at pages 1775 – 1776; 1770 – 1771. It was submitted that damages may include loss of business profits where such loss was within the parties’ contemplation, citing Trans Trust SPRL v. Danubian Trading Co. Ltd (1952) 2 QB 287, (1952) 1 All ER 970 CA. On unchallenged evidence of special damage, reliance was placed on Luke Onyiorah v. Benedict Onyiorah & Anor (2019) 15 NWLR (Pt. 1695) 227; GE International Operations (Nig) Ltd v. Q Oil and Gas Services Ltd (2016) 10 NWLR (Pt. 1520) 304 at 331.

The Cross-Respondent, on its part, submitted that the lower Court was right in holding that there was no agreement between the parties that the Cross-Respondent would be jointly responsible for the employment of experts for the construction of the steel plant nor was there any agreement between the parties that the Cross-Respondent would refund any sum expended by the Cross-Appellant in furtherance of the development of the land where the Steel Plant was to be installed. The Court was urged to uphold the position of the lower Court on this issue.

Resolution
The lower Court found that what the parties had was an equipment leasing contract, which the Cross-Respondent breached, and went on to hold that the Cross-Appellant failed to prove its entitlement to these particular claims as the parties had no agreement that the Cross-Respondent would be jointly responsible.

The evidence revealed that the sum of $150, 000.00 was paid by the Cross-Appellant to Tirupati Powercon (P) Ltd, India as an advance deposit for the manufacturing of the machines for the steel plant to ensure the machines were ready on time. As rightly found by the lower Court, this sum of money had already been advanced to Tirupati before the Cross Appellant approached the Cross Respondent. The said $150, 000.00 was paid on 24/4/1997, Exhibit C40, while Exhibit C4, the offer letter to the Cross Respondent, was dated 20/6/1997. Further, it was in evidence, and already found above, that the initial L/C 1/970066 was not cancelled deliberately by the Cross Respondent, but because the machines were not supplied within the period of validity of the L/C, it expired. Any loss arising therefrom cannot be laid at the doorstep of the Cross Respondent.

The learned trial Judge found and held that there had been a breach of contract by the Cross Respondent, and I agree.

It is well established that the measure of damages in a breach of contract is the loss flowing naturally from the breach and is incurred in direct consequence of the violation. In the case of Hadley v. Baxendale (1854) 9 Exchequer 341, it was held that:
“Damages are recoverable by the injured party if the loss may be fairly and reasonably considered to arise naturally. The loss must be reasonably supposed at the time of making the contract, to have been in the contemplation of both parties as the probable consequence of its breach.”
This principle has been followed in a plethora of authorities, and I shall mention a few: G. Chitex Industries Ltd v. Oceanic Bank International (Nig) Ltd (2005) LPELR-1293(SC), Marine Management Associates Inc. & Anor v. National Maritime Authority (2012) LPELR-20618(SC), Ahmed v CBN (2012) LPELR-9341(SC), Kusfa v. United Bawo Construction Company Limited (1994) LPELR-1721(SC), Union Beverages Ltd v. Owolabi (1988) LPELR-3396(SC). In my considered opinion, the Cross Appellant was entitled damages that would reasonably place it in the position it would have been, had there been no breach of the contract for equipment leasing.

Exhibit C1 was the proposal letter to the Cross-Respondent from the Cross-Appellant. In a further letter, Exhibit C2, the Cross-Appellant gave the Cross-Respondent more elaborate details of its plans for the mini steel plant, and adding:
“For your information, we have already employed the expatriate Project Manager and his family is already in Nigeria while he is supervising and inspecting the production and dispatch of fabricated structures and machines overseas. In addition, we have hired the services of an Architect who has given the design for the prefabricated structures and assisting the expatriate Project Manager in India. Also, we have employed a consultant who is helping the Project Manager in selection and production of machinery and rolling mill.”

These were expenses that the Cross Appellant took upon itself. The choice of the particular technical or specialized staff or consultants was made by the Cross-Appellant. As the trial Court held, there was no specific agreement for a joint responsibility for these expenses. I agree with the learned trial Judge that the Cross-Respondent cannot be held so accountable.

CW1 in paragraph 46 of his written deposition stated, page 541 of the Record of Appeal:
“That in consequence of the agreement reached with the Defendant in 1997 the Claimant spent over N65,000,000.00 (Sixty Five Million Naira) in the construction of an industrial building at Plot 27, Industrial Estate Odogunyan Ikorodu to house the steel rolling plant.”

Exhibit C23 was a letter, dated 25/10/1999, written to the Cross-Respondent by the Cross-Appellant giving the approximate balance cost for the commissioning of the rolling mill plant. Exhibit C23 stated that while the completed jobs on the said mill exceeded N60 – 65 million, to complete the job and commence operation of the mill required a further estimated N30 million.

An industrial building for the installation of the equipment to be leased was a necessary and fundamental requirement. The leased equipment could not be expected to be kept out in the exterior. The building of an industrial structure for this purpose was a foreseeable necessity and implication of the equipment lease contract. Therefore, the breach of the equipment leasing contract by the Cross-Respondent after the construction of an industrial building made solely for this purpose, was a great loss to the Cross-Appellant.

CW1 was not at all cross-examined on his evidence that they had spent N65 million in constructing the industrial building or mill to house the equipment. It is trite that when facts are pleaded and evidence is led on every aspect of the pleaded facts and the facts are not punctured by proper cross-examination or there has been no cross-examination at all, the facts are deemed admitted and require no further proof. See Gaji v Paye (2003) LPELR-1300(SC); WAEC v Oshionebo (2006) LPELR-7739(CA); Yusuf & Anor v. The State (2019) LPELR-46945(SC). The Cross-Respondent that failed to cross-examine CW1 on this issue is deemed to have admitted the same.

In my considered view, therefore, the Cross-Appellant is entitled to damages of N65, 000,000.00. This would satisfy the justice of the case in line with the holding that the Cross Respondent had acted in breach of the equipment lease contract.

Issue 6
The lower Court restricted the special damages awarded for loss of business profits to only eight quarters but that evidence was abundant that the Cross-Respondent frustrated the Cross-Appellant’s project for six years from 1999 to 2005. It was argued that the lower Court, having found that the various breaches of the contract by the Cross Respondent were deliberate and fundamental, should have awarded damages for at least twenty quarters which will be for six years instead of only eight quarters which is for two years that was granted.

It was further contended that the Cross Appellant was also entitled to judgment for these special and general damages claimed by the Cross-Appellant because they flow naturally from the several breaches of contract and frustration of the contract by the Cross-Respondent for eight years. The case of Skye Bank Plc v Tuns Farms Nigeria Ltd Suit No: CA/AK/92/2014 (unreported) was cited and relied on. Reliance was also placed on O. Arabambi & Anor v. Advance Beverages Industries Ltd (2006) 3 M.J.S.C 613; (2005) 19 NWLR (Pt. 959) 1.

In reply, the Cross-Respondent submitted that the Cross-Appellant was, in effect arguing that it was entitled to the sum of N1,202,900,000.00 as against the sum of N131,927,000.00 awarded to it by the lower Court. But, that it was not entitled to any amount at all as loss of business profit. That a claim for loss of profit or anticipated profit represents a loss that has crystallized into special damages which in effect is pecuniary losses that must be strictly proved, citing Umeanozie v. FBN PLC (2016) LPELR-41038 (CA). It was submitted that the sum of N1,202,900,000.00 as loss of anticipated profit being claimed by the Cross-Appellant was neither particularized or strictly proven, relying on Artra Ind. Ltd v N.B.C.I (supra); Burua v Cubbitts Nig Ltd (1990) 5 NWLR (PT 152) 630 at 635. That the amount being claimed by the Respondent as business profit was anticipatory and speculative, which cannot be granted, citing Omonuwa v Wahabi (1976) 4 S.C. 37.

Resolution
Whether the Cross Appellant was entitled to loss of anticipated profit has already been considered and resolved by the Court under issues 5 as framed by the Cross Respondent. On that resolution, the award of the sum of N131,927,000.00 to the Cross-Respondent as anticipated profit was set aside. The present claim for loss of anticipated profit for at least twenty quarters is, for the same reasons, not tenable.

If I may reiterate, the anticipated profits were mere assumptions. The Cross-Appellant did not give any evidence, whether oral or written, to demonstrate, with reasonable certainty, how these assumptions would be attainable and thereby justify any award for loss of profit or anticipated profit. Both the Court and the Cross-Respondent were entitled to have the basis for evaluating what made the projections of anticipated profits possible. The Court should not act within the realm of conjecture or rely on a speculated estimate in awarding special damages. See Uwa Printers Ltd. v. Investment Trust Ltd (supra), A G Oyo State & Anor v Fairlakes Hotels Ltd & Anor (supra), Confidence Bureau De Change v. Ndeanefo (supra), Mobil Producing Nigeria Unlimited v. Nsesco Nigeria Limited (supra), Eneh v. Ozor & Anor (supra), Umeanozie v. First Bank of Nigeria Plc (supra) and Okonkwo v. Union Homes Savings and Loans Plc (supra). Issue 6 is therefore resolved against the Cross-Appellant.

Issue 7
The Cross-Appellant complained that the lower Court did not make any specific finding on the number of containers cleared by the Cross-Respondent. The bill of lading was a contract between the Shipowner/Carrier, the Shipper/Consignor on the one part and the Consignee/Endorsee on the other part. Relying on Pacers Multi-Dynamics Ltd Vs. The “M. V. Dancing Sister” (2012) 1 MJSC (Pt. 1) 82; (2012) 4 NWLR (Pt. 1289) 169, it was submitted that the Shipowner/Carrier, Shipper/Consignor and Consignee/Endorsee were the only ones that can sue or be sued and not a notify party. The Cross-Appellant could not have cleared any container.

The Cross-Respondent did not respond to these contentions.

Resolution
The learned trial Judge evaluated the evidence and held, page 982 of the Record of Appeal:
“The discrepancy between what was installed at the claimant’s factory and what was withheld by the defendant can be resolved by accepting that only four containers had been cleared by the defendant vide Exhibit D4, the bills of lading and that the equipment in these containers had not been installed at the claimant’s factory.”

Therefore, contrary to the assertions of the Cross-Appellant, the lower Court did make a finding that four containers were cleared by the Cross Respondent. Issue 7 is resolved against the Cross-Appellant.

In the final analysis, the cross-appeal succeeds in part. It is hereby ordered as follows:
1. The Cross-Appellant is awarded damages of N65, 000,000.00 (Sixty-Five Million Naira) against the Cross-Respondent.
2. It is further ordered that the Appellant shall pay post-judgment interest at the rate of 10% per annum on the judgment sum from today until it is fully paid.
3. Parties shall bear their costs.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the comprehensive judgment prepared by my learned brother, Otisi, J.C.A., and add these few words by way of emphasis. Costs follow the event. A successful party is ordinarily entitled to cost.

The costs of N250,000 awarded by the lower Court were not based on fanciful expenditure or unusual and/or extraordinary expenses by the respondent but on the principles for award of costs enunciated by the then Federal Supreme Court in the case of Rewane v. Okotie-Eboh (1960) 5 F.S.C., 200 at 206 following the Old English case of Harold v. Smith, 157 E.R., 1229, at 1231 where Baron Bramwell held:-
“costs as between party and party are given by the law as an indemnity to the person entitled to them; they are not imposed as a punishment on the party who pays them nor given as a bonus to the party who receives them. Therefore, if the extent of the damnification can be found out, the extent to which costs ought to be allowed is ascertained… As a general rule costs are an indemnity, and the principle is this – find out the damnification and then you find out the costs which should be allowed.”

So much on the principle for award of costs for the purpose of this case.

There is therefore the discretion to award costs or not to award costs which must be exercised judiciously and judicially by the Court called upon to award or not to award costs. In case there are grounds upon which the trial Judge can properly exercise his discretion as in this case where the litigation covered eleven (11) years with series of appearances, the sufficiency of the grounds is entirely a matter for the discretion of the Judge awarding or refusing to award costs which will not be interfered with by an appellate Court.

I too would allow the appeal in part and abide by the consequential order(s) contained in the lead judgment.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to read, in draft, the dexterous leading judgment delivered by my learned brother, Onyekachi Aja Otisi, JCA. I endorse in toto the expansive legal reasoning and conclusions in it. l too allow the main appeal and the cross-appeal in part in the manner decreed in the erudite leading judgment. I abide by the consequential orders made therein.

Appearances:

Johnson Odionu, Esq., with him, Jane Anyika, Esq. For Appellant(s)

Olusegun B. Ajayi, Esq., with him, Chikezie Nwagboso, Esq. For Respondent(s)

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