UBN PLC. v. OLADEJI YESUFU & CO. LTD
(2020)LCN/15651(CA)
In the Court of Appeal
(AKURE JUDICIAL DIVISION)
On Friday, October 02, 2020
CA/AK/88/2017
Before Our Lordships:
Oyebisi Folayemi Omoleye Justice of the Court of Appeal
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Patricia Ajuma Mahmoud Justice of the Court of Appeal
Between
UNION BANK OF NIGERIA PLC APPELANT(S)
And
OLADEJI YESUFU & COMPANY LTD RESPONDENT(S)
RIDWAN MAIWADA ABDULLAHI, J.C.A. (Delivering The Leading Judgment):
INTRODUCTION AND RELEVANT FACT
The Judgment from which this appeal emanates was delivered on the 24th January, 2017 by Hon. Justice Bode Adegbehingbe of the High Court of Ondo State sitting at the Ondo Division while the suit itself was filed on 12th February, 2016. The Claimant/Respondent commenced the suit at the trial Court vide writ of summons. As endorsed on the face of the Writ of Summons dated the 12th February, 2016, the claims of the claimant were: –
1. A Declaration that by the defendant’s failure to deliver possession of the auctioned property situate, lying and being at Oluwabamigbe Street, Ebun-Saw Mill Area, Ondo, Ondo State to the claimant having collected the purchase price of N40,000.00 (Forty Thousand Naira) from the Claimant constitutes a breach of contract and is therefore wrongful and illegal.
2. A Declaration that by virtue of the defendant’s letter dated 14th September 2004, the Claimant is entitled to the sum of N40,000.00 (Forty Thousand Naira) with accrued interest from March 1991 to December 2015 which sum total of Principal sum and interest amounts to Twelve Million, One Hundred and Fifty Thousand, Eight Hundred and Twenty-Two Naira, Ninety-One Kobo (N12,150,822.91K).
3. AN ORDER compelling and directing the Defendant to pay the Claimant by way of special damages the sum of Twelve Million, One Hundred and Fifty Thousand, Eight Hundred and Twenty-Two Naira, Ninety-One Kobo (N12,150,822.91K) being the total sum of the purchase price of N40,000 and the accrued interest from March 1991 to December 2015 using the Central Bank of Nigeria Annual Report of Financial Statistics Table A.2.4.2 on Lending rates of Commercial Banks.
4. AN ORDER directing that the Defendant pay the sum of N10,000,000.00 (Ten Million Naira) as general damages suffered by the Claimant as a result of the failure of the defendant to deliver the property to the Claimant and or as damages for breach of contract and or for the inconveniences suffered by the Claimant under paragraph 34 hereof.
5. AN ORDER directing the defendant to pay the sum of N2,000,000.00 (Two Million Naira) as cost of litigation of this suit to the claimant. Upon being served with the originating processes in this case, the Appellant joined issues with the Respondent by filing and serving its Statement of Defence on 22/04/2016. The Respondent filed and served a Reply to the Statement of Defence dated 28/04/2016.
The matter went into a full Court trial wherein the Respondent in prove of its claim called two (2) witnesses, PW2 and also tendered documents. Appellant testified as DW1, never tendered any document but referred to Exhibit P1 tendered by the Respondent.
Parties filed and exchanged written addresses which were adopted by their respective learned counsel. The case came to a close with the adoptions of the said address. In the judgment of the Lower Court, the Court found in favour of the Respondent and granted its claims in part. The judgment is contained on pages 220 – 257 of the Record of Appeal which the Appellant is dissatisfied with and filed this Appeal on the 21/1/2017 contained on pages 258 – 259 of the transmitted Record of Appeal.
In compliance with the Rules of Court in filing Civil Appeal, the parties filed and exchanged briefs of arguments and the Appeal was heard on the 16th of July, 2020 vide adoption of the briefs by their respective learned counsel on their behalves. Amended Appellant’s Brief of Argument settled by W. O. Ogunkeye Esq. filed on 21/5/2018, deemed properly filed and served on 28/5/2018 and the Appellant’s Reply Brief settled by Ben T. Ogunjobi Esq. filed on 23/11/2018 were both identified and adopted by Ben T. Ogunjobi Esq. Amended Respondent’s Brief of Argument settled by O. F. Odeyemi Esq. filed on 28/5/2018 was identified and adopted by him.
The Respondent filed and served a Notice of Preliminary Objection containing three (3) grounds of objection filed on the 28/5/2018, which the learned counsel to the Respondent referred to and relied on. O. F. Odeyemi Esq. incorporated in the Respondent’s brief at paragraphs 4.2 – 4. 11 of same. He urged us to strike out grounds 1 and 2 for being incompetent.
The Appellant incorporated its response to the Preliminary Objection in the Appellant’s Reply Brief at paragraphs 1.1 – 1.10 which the learned Appellant’s counsel referred to and relied on. He urged us to dismiss the Preliminary Objection. I will forthwith consider and determine the Preliminary Objection referred to and argued by the parties. By the Notice of Preliminary Objection, the Respondent prays for the followings:-
1. An Order striking out Appeal Nos. 2, 3, 4, 5 and 7 of the Amended Notice of Appeal.
2. An Order striking out issues 1 and 2 argued in the Appellant’s Amended Brief of Argument.
It is supported by the following grounds:-
1. That issues 1 and 2 are indicated to have both been distilled from grounds 2, 3, 4, 5 and 7 and both are argued together.
2. That the Appellant’s proliferate issues in the Appellant’s Amended Brief of Argument
3. The Appellant’s Amended Brief of Argument is grossly incompetent.
In arguing the objection, learned counsel to the Respondent said that issues 1 and 2 were indicated to have both been distilled from grounds 2, 3, 4, 5 and 7 of the grounds of appeal which constitute proliferation of issues, a practice deprecated by the Appellate Courts. Cited the cases of FARDOUN V. MBC INTERNATIONAL BANK LTD (2006) ALL FWLR (PT. 297) 1130; OKON OBOR V. D. E. & S. TRANSPORT CO. LTD (2010) 17 NWLR (PT 1221) 181 AND AJANI & ANR V AJANI (2016) LPELR – 4139 (CA).
He further said that base on the above authorities issues 1 and 2 of the Appellant are caught by virus of proliferation of issues and therefore grossly incompetent. Counsel urged us to strike out the said issues along with the grounds from which they are distilled. He submitted that by arguing issues 1 and 2 together by the Appellant is tantamount to arguing competent grounds together with incompetent grounds. That the positions of the law when it happens like this is that the incompetent grounds have corrupted the competent grounds, therefrom are liable to be struck out. Relied on the cases of JEV & ANR V. IYORTYOM & ORS (2014) LPELR-23000 (SC) AND OKEZIE VICTOR IKPEAZU V. ALEX OTTI & ORS (2016) LPELR – 40055 (SC).
Learned counsel urged the Court to strike out the issues under reference together with the ground for being incompetent.
In response to the argument on the Preliminary Objection, the learned counsel for the Appellant said that the case of AJANI & ANR V AJANI (SUPRA) heavily relied upon by the learned counsel to the Respondent is distinguishable from the issues raised. That the position of the law on proliferation of issues is that the issues for determination should in no circumstance be more than the grounds of appeal. He argued that proliferation of issues occurs where more than one issue for determination is formulated from a single ground of appeal.
Counsel submitted that the Appellant did not proliferate issues but formulated two issues (1 and 2) from grounds 2, 3, 4, 5 and 7 and stated in its brief of argument that both issues will be argued together. He said that the Appellant can conveniently argue two issues together to save time and avoid repetition of argument. Referred to AKPAN V. BOB & ORS (2010) LPELR – 376 (SC). That the nature and meaning of proliferation was aptly expressed in the case of ADEEKO V AMAECHI (2015) LPELR – 24653 (CA) where it was held that:- “Proliferation of issues means having more issues than the grounds of appeal…”
He submitted that the five grounds of appeal can still accommodate the said issues 1 and 2. That the focus is whether the issues formulated are more than the grounds of Appeal from which they are distilled. He cited the case of EMESPO J. CONTINENTAL LTD & ANOR V AUTOMOTOR FRANCE S. A. (2016) LPELR – 42232 (CA).
Counsel submitted further that the issues are competent contrary to the contention of the learned counsel to the Respondent and urged us to so hold.
In conclusion, Ben T. Ogunjobi Esq. urged the Court to dismiss the Respondent’s Preliminary Objection.
RESOLUTIONS OF THE PRELIMINARY OBJECTION
This Preliminary Objection necessitate the re-visitation to the Appellant’s Amended Brief of Argument wherein I found the two issues (1 and 2) in contention are individually distilled from different grounds of Appeal. Issue one (1) is distilled from Grounds 2 and 3 while issue two (2) is distilled from Grounds 4, 5 and 7 of the grounds of appeal.
In the course of arguments of the four (4) formulated issues in the brief of argument, the learned counsel for the Appellant chose to argue issues 1 and 2 together which he said relate to grounds 2, 3, 4, 5 and 7 of the grounds of appeal.
There is nothing wrong in arguing two issues together. That can be done to save time and avoid repetition of arguments. This has been described as helping the Court in putting charity on the determination of issues. See the case of AKPAN V BOB & ORS (SUPRA) where the Supreme Court held inter-alia “that there is no law against arguing two or more issues together in a brief of argument. The practice is encouraged for its convenience to both the parties and the Court as it is designed to save time and avoid repetition of arguments…”
The nature and meaning of proliferation was aptly expressed in the case of ADEEKO V AMAECHI (SUPRA) where the Court of Appeal held thus: “Proliferation of issues means having more issues than the ground of appeal.” See the case of MOZIE V MBAMALU (2006) 15 NWLR (PT. 1003)466 @ 490.
I am of the opinion that arguing two issues as in the instant case does not offend the rule against proliferation of issues since the issues were distilled from the grounds of appeal. In the case of EMESPO V AUTOMOTOR (SUPRA), it was held thus: “It is trite that issues for determination must take root from the grounds of appeal in the Notice of Appeal.”
The Respondent made heavy whether on proliferation of issues with strong reliance on the case of AJANI & ANR V. AJANI (SUPRA) which is not on all fours with the instant appeal. Part of the decision in the said case is in tandem with the position of the Appellant in this appeal.
In the light of the aforesaid, the grounds of objection cannot fly and the orders sought for the striking out of the two issues (1 and 2) together with the grounds of appeal from which the issues were distilled (2, 3, 4, 5 and 7) cannot hold water. Consequently, the Preliminary Objection is discountenance.
This appeal is now opened for consideration and determination on its merit base on the issues formulated by both parties.
ISSUES FOR DETERMINATION
The Appellant formulated four issues for determination of this appeal as follows:
1. WHETHER THE APPELLANT WAS IN BREACH OF CONTRACT OF THE SALE OF THE AUCTIONED PROPERTY. (GROUNDS 2 AND 3).
2. WHETHER THE ORDER DIRECTING THE APPELLANT TO PAY THE SUM OF N12,150,829.91 (TWELVE MILLION, ONE HUNDRED AND FIFTY THOUSAND, EIGHT HUNDRED AND TWENTY-TWO NAIRA, NINETY KOBO) ONLY TO THE RESPONDENT WAS JUSTIFIABLE IN THE CIRCUMSTANCES OF THE CASE. (GROUNDS 4, 5 AND 7).
3. WHETHER THE LOWER COURT’S ORDER DIRECTING THE DEFENDANT TO PAY THE SUM OF N500,000.00 (FIVE MILLION NAIRA ONLY) AS DAMAGES FOR BREACH OF CONTRACT IS JUSTIFIABLE HAVING REGARD TO THE CIRCUMSTANCES OF THIS CASE. (GROUND 6).
4. WHETHER THE TRIAL JUDGE PROPERLY EVALUATED THE TOTALITY OF EVIDENCE ADDUCED AT THE TRIAL BEFORE ARRIVING AT THE CONCLUSIONS IN HIS JUDGMENT. (GROUNDS 8, 9, 10 AND 11).
The Respondent formulated two issues for determination to wit:
1. Whether on the pleadings and evidence there is any legal basis for the award of special damages to the Respondent or in the alternative, whether the Respondent discharged the burden of proof required to succeeding in its claim for special damages. (Grounds 2, 3, 4, 5, 7, 8, 9, 10 & 11 of the amended notice of appeal).
2. Whether the award of N5,000,000 as damages by the Learned Trial Judge in addition to the proved special damages amounted to double compensation having regard to the pleadings, evidence and findings of the Court of first instance. (Ground 6 of the amended notice of appeal).
Looking at the two sets of issues formulated by the parties, the issues distilled by the Appellant can conveniently be used in determination of this appeal as they encompassed the two issues presented by the Respondent.
TREATMENT OF ISSUES
ISSUES ONE AND TWO
In the course of argument of these two issues, the learned counsel for the Appellant referred to para. 38 of the Respondent’s Statement of Claim as stated in para. 2.1 of the Appellant’s Amended Brie of Argument.
He said that it was not in dispute that in February, 1991, the Respondent purchased a property from the Appellant at an auction for the sum of N40,000.00, the said sale was set aside by the judgment of Ondo State High Court in Suit No. HOD/91/91. That the Appellant appealed against the judgment by a Notice of Appeal on the 18th May, 1995. That the Respondent thereafter filed Suit No. HOD/55/2002 against the Appellant for the recovery of the purchase price of N40,000.00 with the interest thereon. That during the pending of the Suit No. HOD/55/2002, the Appellant through its solicitor wrote Exhibit P1 dated 14th September, 2004 to the Respondent’s counsel. That the Respondent accepted the terms in Exhibit P1 and on the basis of the assurance given by the Appellant therein, withdrew Suit No. HOD/55/2002 and it was struck out on the 20th of October, 2004. Reference made to Exhibit P2, a certified through copy of the record of proceedings in Suit No. HOD/55/2002.
Counsel contended that a binding contract had been created between the parties by virtue of Exhibit P1 and the Respondent’s acceptance of the terms therein. He referred to paras. 10 and 11 of the Statement of Claim at page 5 of the record of appeal and paras. 11 and 12 of the Statement on Oath of PW1 at page 16 of the record. That the Appellant in para. 1 of the statement of defence at page 53 of the record admitted paras. 10 and 11 of the said statement of claim. He submitted that the facts therein need no further proof. Referred to the cases of CHUKWU & ORS V AKPELU (2013) LPELR – 21864 (SC); MIKANO INTERNATIONAL LTD V EHUMADU (2014) NWLR (PT. 137) 100 at 146 paras. C – D and MUDIAGA ODJE V Y.P.S. (NIG.) LTD (2014) 5 NWLR (PT. 1400) 412 at 430 – 431 paras. D – B. Also referred to the findings of the learned Judge at page 239 of the record.
Counsel submitted that in view of the contract created by Exhibit P1, it was not possible for the Appellant to have breached the 1991 contract of sale due to “novation”. That unfortunately, the learned trial Judge did not make any finding on the effect of Exhibit P1 had on the earlier contract of sale.
He contended that the contract of sale had been submitted by the new contract. That the effect of the new contract is that the Respondent had agreed that as soon as the Court of Appeal delivered its judgment in Appeal No. CA/AK/172/2014, the Appellant would either refund the sum of N40,000.00 with accrued interest or ensure that the property “reverts to the Respondent”. That the 1991 contract no longer exists because the contract which arose by virtue of Exhibit P1 has in effect terminated or varied the 1991 contract. Relied on A.C.B. V AJUGWO (2012) 6 NWLR (PT. 1295) 97 at 118 paras. C – D.
He submitted that the delivery of the judgment in CA/AK/172/2014 is a condition precedent to the right of the Respondent to the purchase price with interest or to possession of the property.
Counsel submitted that since the undertaking in Exhibit P1 would not become operative until judgment is delivered in the appeal pending against Suit No. HOD/91/91 and there was evidence before the lower Court that the said appeal had not been determined; the Respondent’s cause of action had not arisen contrary to the holding of the learned trial Judge at page 239 of the record.
On the issue of the award of N12,150,822.91k made by the trial Court to the Respondent, learned counsel for the Appellant submitted that based on their earlier submissions, that the Respondent’s cause of action had not arisen since the judgment of the Court of Appeal in Appeal No. CA/AK/172/2014 had not been delivered, no breach of contract in Exhibit P1, there was no legal basis for the Lower Court to have awarded the said sum of N12,150,822.91k which the Respondent would only be entitled to if there was a breach of the said contract. The referred to the cases of U.B.A. PLC V CHIMAEZE (2014) LPELR-22699 (SC) 40 paras. E – G; OCEANIC BANK INTERNATIONAL PLC V ABEOKUTA COMMERCIAL & IND. CO. LTD (2014) LPELR -22937 (CA) 22 paras. A – B.
That the learned trial Judge held that the testimony of PW2 on the computation of interest is unchallenged, he submitted that it is not every piece of unchallenged evidence that will entitle a party to judgment especially in cases like this where there is no breach or wrong. Cited ARCHIBONG V UTIN (2012) LPELR -7907 (CA).
Counsel submitted that since the lower Court had held that the contract had been rescinded there was no legal basis for the award of the said sum by virtue of which no contract in existence. He said that the grant of N12,150,822.91k is perverse, has occassioned a miscarriage of justice and should be set aside. Relied on the case of AGUGU V. BUHARI & ANOR (2016) LPELR-41617 (CA).
Learned counsel urged us to resolve issues 1 and 2 in favour of the Appellant.
In response, the learned counsel to the Respondent referred to para. 36 of the Statement of Claim contained on page 9 of the Record of Appeal on special damages and facts occasioning same. He referred to the evidence of PW2 on pages 24 – 25 of the record. He said that Exhibits P12 and P13 shows the computation of N40,000.00 with accrued interest presented by the PW2 which was not discredited by the Appellant. He submitted that the learned Trial Judge was right to have relied on the expert evidence of the PW2 in awarding the special damages which were frontloaded. That the Appellant never challenged the computation, he rather supported the claim when DW1 under cross-examination admitted the indebtedness of the Appellant to the Respondent. He referred to page 235 of the record and submitted that admitted facts need not further prove. Cited OBINECHE V AKUSOBI (2010) 12 NWLR 9 (PT. 1208) 383 @ 393, (2010) ALL FWLR (PT.533) 1839.
Counsel submitted that the relief in para. 38(3) was granted by the learned Trial Judge after careful evaluation of the evidence placed before him. He submitted that either under the 1991 agreement or 2004 agreement, the Respondent is entitled to recover its N40,000.00 with accrued interest since the actual amount has been determined by an expert without challenged.
He contended that in the instant case, the Appellant and the Respondent had an undertaking in 2004 as regards the mortgaged property sold to the Respondent which is Exhibit P1. That the Respondent accepted the offer in Exhibit P1 and immediately withdrew its case against the Appellant where it was claiming the sum of N40,000.00 with the accrued interest as in Exhibit P2. He said that the Appellant failed to carry out its obligation within a reasonable time frame as in Exhibit P1 which absolved the Respondent of any form of contractual estoppel that might prevent it from maintaining this action.
Counsel submitted that the Appellant had failed to prosecute the appeal, which performance formed the basis on which the right of the Respondent may be realised. He said that the Respondent has a right of action to enforce which it did rightly by instituting this action at the lower Court.
It is contended that the reasonable delay in prosecuting the appeal by the Appellant against the Judgment in Suit No. HOD/91/91 necessitated the contract being frustrated in Exhibit P1. That the Appellant had failed to or neglected to prosecute the appeal for more than 20 years.
In reaction vide Reply Brief of the Appellant, the learned counsel for the Appellant argued that it is not every unchallenged evidence that the Court can act upon. He said that the evidence must be cogent, reliable and positive admission of facts. Relied on the case of BENDEL PILGRIMS WELFARE BOARD V IRAWO (1994) LPELR-14109 (CA) 15 – 16 paras. F-A.
Counsel submitted that the evidence of the expert witness relied upon by the lower Court amounts to hearsay which cannot be relied upon by the Court as an admission. That the argument that the pleadings and evidence before the Court in respect of the special damages are unchallenged and can be relied upon in granting the prayer for special damages is a misconception of law.
Counsel contended that the cause of action is premised on the conclusion of Appeal No. CA/AK/172/2014. That contrary to the submission of the learned counsel to the Respondent, the performance of the contract is not within a reasonable time but based on the conditions agreed to the parties. Cited the case of AG OF NASARAWA STATE V AG OF PLATEAU STATE (2012) LPELR-9730 (SC) 65-66 paras. F-A and referred to Exhibit P1.
ISSUE THREE
In arguing this issue three (3) the learned counsel for the Appellant contended that assuming without conceding that the Appellant’s failure to deliver possession of the auctioned property to the Respondent amounted to a breach of contract, the award of N5 Million as damages for breach of contract and for inconveniences suffered by the Respondent is unlawful and unwarranted in the circumstances of this case.
He submitted that the damages which a party ought to receive in respect of breach of contract should be such as may fairly and reasonably be considered either naturally, i.e in accordingly to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it. Cited AHMED & ORS V CBN (2012) LPELR – 9341 (SC); UDOFEL LTD & ANR V SKYE BANK PLC (2014) LPELR-22742 (CA); SYNDICATED INV. HOLDING LTD V NITEL TRUSTEES LTD & ANR (2014) LPELR-22952 (CA) and ARTA IND. LTD V N. B. C. I. (1997) I NWLR (PT 483) 574 @ 595 – 596. He also referred to AKUBUIRO V MOBIL OIL (NIG) PLC (2012) 14 NWLR (PT 1319) CA 42; AGU V GENERAL OIL LTD (2015) LPELR – 24613 (SC).
Counsel submitted that even if the Appellant breached the contract between the parties (which is denied), the only damages which could be said to be in contemplation of the parties and deducible from Exhibit P1, is the sum of N40,000,00 with the accrued interest from 1991 – 2015. That the trial Court ought not to have awarded the sum of N5 Million as this was not in the contemplation of the parties at the time they entered the agreement evidenced by Exhibit P1.
He further submitted that the award of N5 Million arising from the failure of the Appellant to deliver the auctioned property to the Respondent and for inconveniences suffered by the Respondent should be set aside, since it amounts to double compensation as the learned trial Judge had made an award of N12,150,829.91 under another head of claim for the same injury.
That if an error has been committed by the trial Court, as in this appeal, it is the duty of the Appellate Court to reverse same. Relied on NIGERIAN BOTTLING COMPANY PLC V MR. DEMOLA OLAREWAJU (2006) LPELR-7696 (CA); EGBE & ANR V ODU (2014) LPELR-23805 (CA) 17 paras. E – G and C.B.N. V OKOJIE (2015) 14 NWLR (PT 1479) SC 231.
Counsel urged us to resolve this issue in favour of the Appellant and set aside the N5 Million damages.
In response, the learned counsel to the Respondent contended that it is settled law that where damages have been awarded by a trial Court, an alteration of the award will be made by the Appellate Court only where it is shown that the award is either manifestly too low or too high or was made on wrong principle. Referred to the cases of U.B.A. V. ACHORU (1990) 6 NLRP (PT 156) 254; IJEBU-ODE LOCAL GOVERNMENT V ADEDEJI BALOGUN & CO (1991) 1 NWLR (PT 166) 136 AND ONAGA V MICHO & CO. (1961) 2 NSCC 189 @ 192.
He further contended that it is settled law that general damages are always made as a claim at large, the quantum need not be pleaded and proved. That the award is quantified by what in the opinion of a reasonable person is considered adequate loss or inconveniences which flows naturally, as generally presumed by law from the act or conduct of the Defendant. That it does not depend upon calculation made and figure arrived at from specific items. Cited ODULAJA V HADDAD (1973) 11 SC 357; LAR V STIRLING ASTALDI LTD (1977) 11-12 SC 53 AND OSUJI V ISIOCHA (1989) 6 SC (PT 11) 158.
Counsel said that the Respondent claimed the sum of N10 Million as general damages and clearly stated the circumstances giving rise to this claim in paras. 33 and 34 of the Statement of Claim which arose from the conduct of the Appellant with holding the money of the Respondent since 1991 to date. That the Respondent was subjected to renting premises for its business, denied making money as rent from the property while the Appellant invested the money collected from the Respondent in its business, a fact not denied but corroborated by DW1 under cross-examination at page 229 of the record.
Counsel further said that the law is trite that where general damages are claimed, if the issue of liability is established as in this case, the trial Court is entitled to make its own assessment of the quantum of such damages. That on appeal such damages will only be altered or varied if they were shown to be either manifestly too high or too low or made wrong principle of law.
He referred to the judgment of the trial Court in page 255 of the record where it was found that there was credible, unchallenged and uncontroverted evidence in support of the claim for general damages and awarded N5 Million out of N10 Million claimed by the Respondent. He urged us not to upturn the award of the said damages granted to the Respondent.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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He submitted that the award of damages by the trial Court is in order and does not amount to double compensation. Referred to the case of TOM TOTAL (NIG) LTD V SKYE BANK (SUPRA) cited by the Appellant’s counsel and argued that both special and the general damages were awarded in it. He also referred to the case of AGU V GENERAL OIL LTD (SUPRA) cited by the Appellant’s counsel and stated that the only reason why the award of general damages was set aside was because it was based on unsubstantiated allegation.
Counsel submitted that all the authorities cited by the Appellant are misplaced and inapplicable. He referred to the cases of UBA PLC V GMBH (1989) 2 NWLR (PT 110) 374 @ 402 AND AMORI V IYANDA (2008) 3 NWLR (PT 1074) 250.
He submitted further that the award was based on credible evidence and the law which he urged us to so hold and resolve the issue against the Appellant in favour of the Respondent.
In reaction to the response, the learned Appellant’s counsel submitted that the award of the sum of N5 Million to the Respondent amounts to double compensation even though the learned trial Judge did not use the word “general damages” in his judgment but merely referred to the award as “damages.”
He submitted that all the authorities cited in the Appellant’s brief are apposite and the principles therein correct.
ISSUE FOUR
Learned counsel for the Appellant argued this issue by stating that the Court has duty to consider the relationship between the evidence adduced and issues as well as the probative value of such evidence. This will involve a thorough appraisal, analysis and assessment of the evidence that will logically result in a conclusion of law or an inference of fact. Referred to the case of ONWUGBELU V MEZEBUO & ORS (2013) LPELR– 20401 (CA).
He said that a trial Court must not close its eyes to any irregularity latent or patent on the record without ‘suo motu’ dealing with it, as it could amount to injustice. Reference made to the cases of DOHERTY V YUSUF & ORS (2017) LPELR-41998 (CA); AJIBOLA V SOGEKE (2001) 23 WRN 68 @ 96 AND ISU V UCHE & ORS (2009) LPELR-8855 (CA) 26 paras. A – C.
Counsel is of the view that the learned trial Judge failed to properly evaluate and adequately review of the totality of the evidence adduced before making many of his findings of facts and arriving at the conclusion in his judgment contained at pages 220 – 257 of the record of Appeal.
He made copious analysis on the state of Appeal No. CA/AK/172/2014 by reference to Exhibit P11. That there was evidence before the Court, that the Appeal was entered.
He said that the Lower Court position that the said Appeal was an “anticipatory Appeal” made the learned trial Judge came to the erroneous conclusion that there was no pending Appeal and that the Appellant had breached his undertaking in Exhibit P1.
Counsel contended that the learned trial Judge ought not to have relied on the Respondent’s pleadings and the evidence of PW1 that stated that the Appeal had not been entered when there was documentary evidence (Exhibits P11 and P8) before the Lower Court showing that the Appeal had infact been entered and was pending. He submitted that the failure of the learned trial Judge to use the documentary evidence before the Court as a hanger on for the oral evidence of PW1 before making a finding that the Appeal had not been entered has occasioned a miscarriage of justice.
He submitted that the learned trial Judge did not consider the fact that Exhibit P1 was conditional. That in any event, the Lower Court ought to have relied on the evidence before it and not the submissions of counsel. That the findings of the Lower Court are perverse and have occasioned a miscarriage of justice. Relied on GBENEYEI & ORS V ISIAYEI & ORS (2014) LPELR-23216 (CA).
Counsel submitted that this is a proper situation where the Court of Appeal can evaluate the evidence before the Lower Court and make its findings. Cited the cases of ALABI V DOHERTY (2005) 18 NWLR (PT 957) 432 paras. E – G; EKONG V OTOP (2014) 11 NWLR (PT 1419) 573-574 paras. F – A; BOUYGUES (NIG0 LTD V MARINES SERVICES LTD (2013) 3 NWLR (PT 1342) 429 @ 449 and N. B. C. PLC V EDWARD (2015) 2 NWLR (PT 1443) 201 @ 225 CA. He urged us to resolve this issue in favour of the Appellant.
In response, the learned counsel to the Respondent contended that the Appellant stated that rescission will bring back the parties to ‘status quo ante’, which mean the position when they were in Court on the claim of N40,000.00 with accrued interest moreso, the judgment is based on admission which is clear, unequivocal and relates to the substantive claim of the Respondent. That it is too late in the day for the Appellant to start complaining about the award of special damages when the Appellant had the time to challenge it and did not. He said that evidence unchallenged is admissible and ought to be given probative value. Relied on EBEINWE V THE STATE cited in OKIKE V L. P. D. C. (2005) 15 NWLR (PT 949) @ 471.
Counsel submitted that the trial Court rightly evaluated the evidence placed before it when it held inter-alia that:
“My lords, we submit that the Learned Trial Judge rightly evaluated the evidences placed before him when he held inter alia that “in the circumstances of the complaint of the claimant, with the pleading of the claimant and evidence led by the claimant, it is the view of this Court that the claimant would be entitled to call off the agreement on the issue of awaiting the outcome of the appeal, which the defendant is not diligently prosecuting. The claimant would have the right to take up this claim against the defendant as the law presume that parties have return to their original position before suit no: HOD/91191 was withdrawn”.
He contended that the learned trial Judge in evaluating the evidence before him further held ‘inter alia’ that:
“My lords, the Learned Trial Judge in evaluating the evidence before him further held inter alia “the defendant did not plead any material fact on the steps taken to ensure that the appeal against the judgement in HOD/91/91 was heard. The defendant did not plead any fact showing that the appeal has been entered. The defendant did not place any fact on what is causing delay in hearing the appeal. The defendant did not plead any fact showing what has happened to exhibit P.11”.
He submitted that having failed to explain what happened to Exhibit P11 at the trial Court despite the fact that the Respondent was persistent in complaining about the Appellant’s attitude in Exhibits P3, P4, P5, P9 and P10, the learned trial Judge was right when he held that:
“This Court is, therefore, compelled to believe the evidence of PW l to the effect that the defendant has not been diligent or honest in prosecuting the appeal filed before the Court of Appeal, more than 21 years after judgment in suit HOD/91/91 was delivered.” See Page 241 of the record.”
This issue has been canvassed by the Respondent in the previous issues.
RESOLUTIONS OF ISSUES
ISSUES ONE AND TWO
These two issues are predicated on breach of contract for the sale of the auction property and the justification for the payment of N12,150,829,91 ordered by the trial Court.
It is not in dispute from the pleadings and evidence on record that the parties had created a contractual relationship sometimes in February, 1991 when the Respondent purchased a property from the Appellant at an auction for the sum of N40,000.00. The said sale was set aside by the Ondo State High Court in Suit No. HOD/91/1991 which was appealed against by the Appellant who filed a Notice of Appeal on the 18th May, 1995.
It is on record that, the Respondent filed Suit No. HOD/55/2002 for the recovery of the purchase price of N40,000.00 with interest thereon. During the pendency of the suit, the Appellant through its solicitor wrote Exhibit P1 to the Respondent’s counsel dated 14th September, 2004 which caused the withdrawal of Suit No. HOD/55/2002 and struck out on the 20th of October, 2004 as shown in Exhibit P2 (CTC of the proceedings in HOD/55/2002).
A fundamental question here is whether the undertaking in Exhibit P1 terminated or varied the subsisting contract of sale by auction entered into by the parties in February, 1991.
To my mind, the content of the said Exhibit P1 is an inducement of hope for amicable resolution of the subsisting contract of sale which resulted in the withdrawal of Suit No. HOD/55/2002. By implication Exhibit P1 ascertained and fortified the contract of sale by auction, not terminated or varied same. It was the earlier breach of contract entered into by the parties in February, 1991 that brought about the Suit No. HOD/55/2002 for the recovery of the purchase price of N40,000.00 with the accrued interest thereto.
On the issue of the justification for the payment of N12,150,829.91 ordered by the trial Court, the pleadings and evidence on record justified the order of payment made by the trial Court. The order is based on admission which is clear, unequivocal and relates to the substantive claim of the Respondent. It was based on unchallenged evidence of the PW2 who gave expert evidence. Paragraphs 9, 10, 11, 12, 13 and 14 of the PW2 statement of Oath at pages 24 – 25 of the Record of Appeal refers. Also Exhibits P12 and P13 show the computation of N40,000.00 with accrued interest and these facts as presented by the PW2 before the trial Court were not discredited by the Appellant. It is trite that unchallenged evidence is admissible and ought to be given probative value. See EBEINWE V.THE STATE CITED IN OKIKE V L. P. D. C.(2005) 15 NWLR (PT. 949) 471.
The learned trial Judge was right to have relied on the testimony of the PW2 who was called as expert witness in his award of the special damages. More so that the claim for special damages and the computation was front loaded but the Appellant never challenged or contradicted the computation. See OBINECHE V AKUSOBI (SUPRA) where the Supreme Court held that:
“Where there is no contrary evidence which discredits the evidence of an expert witness, the evidence must be relied upon”
The amounts claimed in reliefs 38(3) were neither challenged nor controverted by the Appellant as shown on record. The reliefs were not only pleaded, but also proved by the Respondent at the trial. The learned trial judge was therefore justified in the grant of the said reliefs. I so hold in the light of the above elucidation, the twin issues (1 and 2) are resolve in favour of the Respondent and against the Appellant.
ISSUE THREE
The parties in this appeal made contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonable be considered either naturally, that is according to the usual course of things, from such breach or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract. See the cases of AHMED & ORS V CBN (SUPRA); UDOFEL LTD & ORS V SKYE BANK PLC (SUPRA); SYNDICATED INV. HOLDINGS LTD V NITEL TRUSTEES LTD AND ARTA IND. LTD V N. B. C. I. (SUPRA).
The award of damages by the Court is not meant to be at large but to ensure restitution to the party for the breach. That is to restore the party to a position as if the contract has been performed. See AGU V GENERAL OIL LTD (SUPRA) AND S. B. N. PLC V OPANUBI (2004) 15 NWLR (PT 896) 437 AT 460 – 461 PARAS. G – A.
At page 248 of the Record of Appeal, the learned trial Judge made the following finding: “The law is that damages in respect of breach of contract should be such as may reasonably be supposed to have been in contemplation of both parties at the time they made the contract, as the probable result of the breach of it.”
There is nothing on record to show that damages in respect of breach of the contract of sale by auction should reasonably be supposed to have been in contemplation of both parties at the time they made the contract. It is not for the Court to speculate nor base the award on sentiment. I so found and hold. See GARRI V SEIRAFINA NIG. LTD (2008) ALL FWLR (PT. 399) 434 AT 454 PARAS. C – D.
A party who had been fully compensated under one head of damages for a particular breach or injury cannot be awarded damages in respect of the same breach or injury under another head. See AGU V GENERAL OIL LTD (SUPRA).
In the instant case, the learned trial Judge has duly compensated the Respondent for the loss he suffered from the breach by the reliefs sought under paragraph 38(3) of the Statement of Claim which he granted. This I found and so hold.
I am of the opinion that the trial Court acted in error when it awarded the N5,000.000.00 damages on the same breach of contract and inconveniences in addition to the sum of N12,150.829.91 awarded by the Court for the main claim and accrued interest by virtue of the computation arrived at. I so hold.
This Court has the power to reverse the erroneous award made by the Lower Court. See the case of NIGERIAN BOTTLING CO. PLC V MR DEMOLA OLAREWAJU (SUPRA); MUOBIKE V NWIGWE (2000) 1 NWLR (PT 642) 620 @ 637 PARA. F.; EGBE & ANR V ODU (SUPRA) AND C. B. N. V OKOJIE (SUPRA).
In line with the principle in these authorities, the award of N5,000.000.00 damages is hereby set aside.
This issue 3 is therefore resolved in favour of the Appellant against the Respondent.
ISSUE FOUR
This issue four predicated on evaluation of evidence adduced before the trial Court has already been canvassed by the learned counsel on both sides in the preceded issues. The argument canvassed herein already determined in those previous issues. It will therefore, abide the treatment and determination of the preceeding issues 1, 2, and 3 in this judgment.
On the whole, this appeal succeeds in part, on the issue of general damages of N5,000,000.00 awarded in favour of the Respondent herein and the said award of N5,000,000.00 only set aside.
Parties to bear their cost of prosecuting and defence of this appeal.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I have read the draft of the leading judgment, in this appeal, just delivered by my learned Brother, RIDWAN MAIWADA ABDULLAHI, JCA.
I am at one with the line of reasoning and the conclusions reached by His Lordship in the said leading judgment.
I also dismiss the Preliminary Objection of the Respondent.
Equally, I accordingly dismiss the appeal which is devoid of merits, save for the award of general damages that was erroneously made in favour of the Respondent. The said award of general damages is accordingly set aside
PATRICIA AJUMA MAHMOUD, J.C.A.: My learned brother, Ridwan M. Abdullahi, JCA obliged me with an advanced copy of this lead judgment just delivered. I concur with his detailed consideration, reasoning and conclusions reached in allowing this appeal in part only in respect of the award of general damages of N5,000,000 in favour of the Respondent.
Generally, in an action for breach of contract in contradistinction to tort, apart from damages naturally resulting from the breach of contract, no other form of general damages can be contemplated. In other words, the award of a sum as general damages in addition to the sum awarded in lieu of notice as in the instant case cannot stand. This was the position of the Supreme Court in the case of OJOMO V INCAR (NIG) LTD (1995) LPELR-2393 (SC). See also AGU V GENERAL OIL LTD (2015) 17 NWLR, PT 1488, 327; IJEBU-ODE LG V BALOGUN (1991) 1 NWLR, PT 166, 136; MMA INC & ANOR V NMA (2012) 18 NWLR, PT 1333, 506 and MTN V CORPORATE COMMUNICATION INVESTMENT LTD (2019) LPELR- 47042 (SC).
Based on the above and the fuller reasons in the lead judgment, I also allow this appeal in part only in respect of the award of general damages of N5,000,000 which is set aside.
I too make no order as to costs.
Appearances:
Ben T, Ogunjobi Esq. For Appellant(s)
Omoniyi Odeyemi with him Precious Lawanson Esq. For Respondent(s)
