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ZENITH PLASTICS IND. LTD v. SAMOTECH LTD (2021)

ZENITH PLASTICS IND. LTD v. SAMOTECH LTD

(2021)LCN/15855(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Tuesday, March 23, 2021

CA/PH/191/2004(1)

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Paul Obi Elechi Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Between

ZENITH PLASTICS INDUSTRY LIMITED APPELANT(S)

And

SAMOTECH LIMITED RESPONDENT(S)

RATIO:

WHAT IS DOUBLE COMPENSATION?

It is trite that in a claim for special and general damages if all the losses suffered by a Plaintiff have been compensated for by an award of special damages, the Court should refrain from awarding general damages to the Plaintiff in order to avoid double compensation. See Ndinwa vs. Igbinedion (2001) 5 NWLR (pt. 705) 140 at 150 paras. B-C, Eholor vs. Idahosa (1992) 2 NWLR (pt. 223) 323; Imo Concorde Hotel Limited vs. Anya (1992) 4 NWLR (pt. 234) 210, Honika Sawmill Limited vs. Hoff (1992) 4 NWLR (pt.238) 673.
By the law against double compensation, a party who has been fully compensated under one head of damages for a particular injury cannot be awarded damages in respect of the same injury under another head. See Artra Ind. Ltd vs. N.B.C.I. (1997) 1 NWLR (pt. 483) 574 at 597 – 598. The law frowns against double compensation and will not allow a litigant who makes claims for specific performance or specific losses suffered by him to add another figure under the head of general damages. See Federal College of Education vs. Anyanwu (1997) 4 NWLR (pt. 501) 533 at 561 paras. G-H, Shell Petroleum Development Co. Ltd vs. Tiebo VII (1996) 4 NWLR (pt. 445) 657, Onaga vs. Micho & Co. (1961) 2 SCNLR 101, Armels Transport Ltd vs. Transco (Nig) Ltd (1974) 11 S.C. 237, UBN vs. Odusote Bookstores Ltd (1994) 3 NWLR (pt. 331) 129. PER PAUL OBI ELECHI, J.C.A. 

WHEN THE COURT WILL GRANT SPECIFIC DAMAGES

It is the law that where a claim for specific damages was not challenged both in the pleadings and in evidence in Court and the said evidence is supported by evidence is supported by pleadings and the nature of evidence adduced is credible, then the trial Court has no option but to accept and act on it. See Bello vs. Eweka (1981) 1 SC 101, NBC Plc vs. Borgundu (1999) 2 NWLR (pt. 591) 408 at 430. PER PAUL OBI ELECHI, J.C.A. 

PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Honourable Justice E.N.T. Ebete of the Rivers State High Court sitting in Port Harcourt. The judgment was delivered on the 25th March, 2004 awarding the total sum of N12,402,000.00 as special and general damages in favour of the Plaintiff/Respondent for breach of contract and libel.

BACKGROUND FACTS:
Plaintiff/Respondent filed an action in 1997 in Suit No. PHC/4/97 against the Defendant/Appellant for both breach of contract and libel. The Plaintiff/Respondent’s complaint in the High Court is that the Defendant/Appellant orally awarded to it in 1995 a contract to construct an 11 KVA line for the Defendant/Appellant. The line was to be connected to the new 33KVA line along the Aba/Port Harcourt Expressway, Port Harcourt at an initial contract sum of N1,405,500.00. The Plaintiff alleged that it executed the contract, but the Defendant failed to pay the initial contract sum. The Plaintiff further alleged that in July, 1996, both the Defendant and its neighbour, another company by name gave it additional work along the said power line at the cost of N193,800.00 and the payment of the cost of this additional job was to be shared equally by the Defendant and Belhope Plastic Industry Limited at the rate of N96,900.00. According to the Plaintiff, Belhope Plastic Industry Limited paid its share of N96,900.00, but the Defendant failed to pay its share of N96,900.00 and when this is added to the outstanding amount of N1,405,500.00 the total indebtedness of the Defendant came to N1,502,400.00. The Plaintiff alleged that it took an overdraft from Union Bank Plc to enable it execute the contract for the Defendant. The overdraft was given to the Plaintiff by Union Bank Plc through its Orije Branch.

The Plaintiff alleged that despite the Defendant’s promise to pay this contract sum of N1,502,400.00 to it, the Defendant failed to pay it even though it has completed the job. The Defendant/Appellant alleged that the only contract between the Plaintiff and the Defendant is the contract which was awarded by the Defendant in 1995 to the Plaintiff through the Manufacturer Association of Nigeria (MAN) for the construction and energization of the 33KVA line which the Defendant has fully paid for through its cheques which are Exhibits J, K and L on the list of Exhibits attached to the record.

The Plaintiff also alleged that due to the Defendant’s failure to pay the amount on the due date, Union Bank Plc stopped giving it credit facilities and the Plaintiff’s ability to execute other contracts was destroyed. Plaintiff alleged that the contract awarded to it by Shell Petroleum Development Company Limited in 1996 in the sum of N2.7 million was cancelled by SHELL because no longer gives it credit facility. The Plaintiff alleged that it would have got a profit of N1.9 million from the SHELL contract if it had not been cancelled. The Plaintiff further alleged that it later authorized the Defendant to pay its indebtedness arising from the contract directly to Union Bank Plc through an irrevocable authority which was acknowledged by the Defendant. The irrevocable authority was tendered as Exhibit “B” and is on the list of Exhibits attached to the record. The Plaintiff alleged further that the Defendant later wrote a letter Exhibit “C” to Union Bank Plc to the effect that it had no business relationship with the Plaintiff and that Exhibit “B” the irrevocable authority was null and void. The Defendant wrote this letter, (Exhibit “C”) in reply to Union Bank Plc letter to the Defendant making enquiries from the Defendant about the irrevocable authority. Exhibit “C” is on the list of Exhibits attached to the record.

As a result of the Plaintiff’s letters of threat to the new management of the Defendant as contained in Exhibits M and N which are on the list of exhibits attached to the record, the Defendant paid to the Plaintiff in the form of cheque (Exhibits “E”) the sum of N1,000,000.00 as full and final payment. Exhibit “E” is on the list of Exhibits attached to the record. The Plaintiff’s claim for libel is predicated on Exhibit C which the Plaintiff claims to be defamatory. The Plaintiff’s claim for breach of contract is predicated on Defendant’s failure to pay the balance contract sum of N502,400.00 claimed by it.

Judgment was delivered on the 25th March, 2004 in favour of the Plaintiff for N12,402,400.00. This is the judgment the Appellant is appealing against. This said judgment is on pages 89 – 118 of the Record of Appeal. The Appellant had initially filed four grounds of appeal and later sought leave of Court to six additional grounds of appeal.

ISSUES FOR DETERMINATION
1. Whether it was not wrong for the learned trial judge to have held that the Plaintiff has proved that the Defendant owes it the sum of N502,000.00 (Five Hundred and Two Thousand Naira) being the outstanding balance unpaid for the contract it awarded to the Plaintiff when the Plaintiff has not proffered credible evidence to that effect. This issue is formulated from ground 1.
2. Whether the learned trial Judge was not wrong in awarding the sum of N1.9 million in the form of special damages in favour of the Plaintiff/Respondent in respect of a different contract which has no nexus with the contract in question and which loss does not flow naturally and directly from the alleged breach and when the special damages was not particularized and strictly proved by the Plaintiff/Respondent. This issue is formulated from grounds 2 and 5.
3. Whether it was not wrong for the learned trial Judge to order the Defendant/Appellant to pay N10 million general damages to the Plaintiff/Respondent for breach of contract and libel after it has already ordered the specific performance of the same contract i.e by ordering the Defendant/Appellant to pay the sum of N502,000.00 to the Plaintiff/Respondent being the balance of the contract sum of N1,502,000.00. The issue is formulated from ground 6.
4. Whether it was not wrong for the learned trial Judge to award the sum of N10 million as general damages against the Defendant/Appellant for both breach of contract and libel at the same time without specifying or categorizing separately the award for the breach of contract and the award for the libel when none of the two causes of action is proved by the Plaintiff/Respondent. This issue is formulated from ground 7.
5. Whether it was not wrong for the learned trial Judge to have awarded general damages for libel in favour of the Plaintiff/Respondent without first of all making a finding as to whether or not the extraordinary defamatory imputation alleged by the Plaintiff/Respondent were capable of such imputations and if they were, whether they were in fact defamatory of the Plaintiff/Respondent and whether there was proof of libel having regards to the evidence before the Court. This issue is formulated from grounds 4, 8 and 9.
6. Whether it was not an award of double compensation in favour of the Plaintiff/Respondent when after awarding the sum of N1.9 million to the Plaintiff/Respondent as the damages and losses he sustained for the breach of contract, the learned trial Judge still went ahead to award in favour of the Plaintiff/Respondent another sum of N10 million as damages for breach of the same contract and libel. This issue is formulated from ground 10.
7. Whether the proceedings in the trial High Court and the judgment thereof are not a nullity having regard to the fact that the Plaintiff/Respondent is not a legal personality having the capacity to sue and be sued.

ISSUE ONE
“Whether it was not wrong for the learned trial judge to have held that the Plaintiff has proved that the Defendant owes it the sum of N502,000.00 (Five Hundred and Two Hundred Thousand Naira) being the outstanding balance unpaid for the contract it awarded to the Plaintiff when the Plaintiff has not proffered credible evidence to that effect.” (Ground One) To argue this issue, it is submitted that there is no credible evidence on the record to show that the Defendant/Appellant is indebted to the Plaintiff/Respondent in the sum of N502,000.00. There is evidence on record that the additional work allegedly given to the Plaintiff by the Defendant in respect of 11KVA line was based on oral contract. Paragraph 3 of the Statement of Claim at pages 4 – 8 of the record refers. Unfortunately, no documentary evidence was tendered at the trial to show the cost of the contract. No evidence of consensus ad idem was given to show that the parties agreed on the consideration or the cost of the contract. The alleged oral contract is in breach of Section 4 of the Statue of Fraud 1677 which provides that such contract which has no relationship or connected to a larger transaction to which it is merely incidental. Such a contract having been made orally is vitiated by Statue of Fraud.

There must be evidence of consensus ad idem between the parties in order to establish that the parties have formed a contract. See P.T.I. vs. Uwamu (2001) 5 NWLR (pt. 705) 112 at 123 paras. E-F, 126 paras B-C.

Also that to maintain a valid contract five ingredients of offer, acceptance, consideration, intention to create legal relation and capacity to contract must be present. All these five ingredients must co-exist before a valid contract is made between the parties. See P.T.I. vs. Uwamu supra at 122 para. C. Also see Okubule vs. Oyagbole (1990) 4 NWLR (pt. 147) 723.

Learned Appellant counsel submitted that the five ingredient are absent in the alleged oral contract which the Respondent alleged was awarded to it as additional work to contract 11KVA to 33KVA line at the cost of N1,502,400.00.

Exhibits M and N show the Plaintiff/Respondent resorted to writing threat letters to Defendant’s new management team represented by Mr. Fan and Mr. Jacky with a view to forcing them to pay him the alleged N1,502,400.00 when he was not able to prove to the new management team by documentary evidence that such a contract existed between it and the Defendant.

There is evidence on record that in view of the Respondent’s fraudulent means and threats, the Defendant/Appellant’s new management team represented by Mr. Fan and Mr. Jacky were forced to pay the sum of N1 million on 28th October, 1996 to the Plaintiff/Respondent in full and final settlement. Mr. Fan and Mr. Jacky have left the country for their home country and hence they could not be called as witnesses. Exhibit E is the payment made to Respondent and Exhibit Q is the letter showing that the payment was full and final. Having accepted the N1 million as full and final, the Respondent is stopped from demanding the alleged balance. The acceptance of the N1 million amounts to a waiver of the Plaintiff’s right to demand any balance. The contract is discharged and the Appellant is no more indebted to the Respondent in the sum of N502,400.00. The Court is urged to set aside the claim.

In the pleadings at paragraph 3 of the Statement of Claim at pages 4 – 8 of the record, the Plaintiff/Respondent averred that the contract awarded to it was an oral contract. In paragraph 4 of the Statement of Claim, the Plaintiff averred that the contract was to reconstruct the Defendant’s 11KVA line to the new 33KVA line substation along the Aba/Port Harcourt Expressway, Port Harcourt.

It is on the basis of the above that it was submitted that the Respondent pleaded in paragraph 3 of its Statement of Claim that the contract was oral contract but the evidence proffered on its behalf did not make reference to oral contract. The Court is urged to disregard the averment as there is no evidence supporting it and urge the Court to hold that there was no contract between the Appellant and Respondent in the absence of any written agreement to that effect.

Also that by Section 4 of the Statute of fraud 1677 (a statute of general application) which is applicable in the Eastern States of Nigeria, the contract in question is not enforceable because it is not evidenced by a memorandum in writing. The oral contract is therefore vitiated by absence of writing. See the case Agbahowe vs. Osayiobosa (1966) NMLR 360.

ISSUE TWO
“Whether the learned trial Judge was not wrong in awarding the sum of N1.9 million in the form of special damages in favour of the Plaintiff/Respondent in respect of a different contract which has no nexus with the contract in question and which loss does not flow naturally and directly from the alleged breach and when the special damages was not particularized and strictly proved by the Respondent. grounds 2 and 5 of the grounds of appeal.”

It is contended that there is no doubt that the learned trial Judge awarded the N1.9 million as special damages in favour of the Respondent because the Respondent alleged contract with Shell Development Company was determined as a result of Exhibit C which was written by the Appellant to the Union Bank. See Exhibit C. Exhibit A is Shell’s letter terminating the contract between it and the Respondent dated 15/5/96. Also Exhibit C according to the learned trial Judge is responsible for the Respondents’ inability to secure a loan from Union Bank to execute the Shell contract dated 13/8/96. From the foregoing, it is contended that the contract which the Respondent allegedly had with Shell was terminated on the 15th May, 1996 before ever the Appellant wrote Exhibit C to Union Bank Plc.

Therefore that the contract which the Plaintiff allegedly had with Shell Petroleum Development Company of Nigeria Limited was not terminated because the Defendant wrote Exhibit C to Union Bank. The learned trial Judge erred when he held that the Shell contract was terminated because the plaintiff wrote Exhibit C to Union Bank. Furthermore, SHELL‘S letter terminating the alleged contract (Exhibit A) does not make reference to N1.9 million or any amount of money as held by the trial Judge.

It is submitted that there is no nexus between the Respondents’ application for loan facility from Union Bank Plc and its contract with the Appellant and Shell Development Company Nigeria Limited. As a result, the damages of N1.9 million awarded in favour of the Respondent does not arise or flow naturally or directly and in the usual course of things from the contract itself and such damages was not contemplated by both parties at the time they made the contract, the subject matter of this suit.

On this issue, it is submitted that the learned trial judge was wholly wrong to have awarded the sum of N1.9 million in the form of special damages in favour of the Respondent when the special damages was not particularized in the Statement of Claim and strictly proved. See Badmus vs. Abegunde (1999) 11 NWLR (pt. 627) 493 at 502, Ngilari vs. Mothercat Ltd (1999) 13 NWLR (pt. 636) 626 at 647 and Nwobosi vs. A.C.B. Ltd (1995) 6 NWLR (pt. 404) 658 at 680. It is submitted that the Respondent did not in his Statement of Claim aver the claim of N1.9 million as general or special damages and yet without such claim either as general or special damages and without proof the learned trial Judge went ahead and awarded it as asked for. See Badmus vs. Abegunde (supra).

In the instant case, it is submitted that the Respondent failed to establish the loss of profit of N1.9 million, and yet, the learned trial Judge erroneously awarded it when no evidence was led to prove it. The Court is urged to resolve this issue in favour of the Appellant.

ISSUE THREE
Whether it was not wrong for the learned trial Judge to order the Defendant/Appellant to pay N10 million general damages to the Plaintiff/Respondent for breach of contract and libel after it has already ordered the specific performance of the same contract i.e by ordering the Defendant/Appellant to pay the sum of N502,000.00 to the Plaintiff/Respondent being the balance of the contract sum of N1,502,000.00. The issue is formulated from ground 6.

To argue this issue, learned Appellant counsel submitted that it was wrong for the learned trial Judge to have ordered the Appellant to pay N10 million as general damages to the Respondent for breach of contract and libel after he has already ordered the specific performance of the same contract by ordering the Appellant to pay the sum of N502,000.00 to the Respondent being the alleged balance of the contract sum of N1,502,400.00.

Also in paragraph 30 (a) of the Statement of Claim which is at page 8 of the Record, the Respondent claimed the sum of N502,400.00 being the balance outstanding against the Defendant in respect of electrical work carried out on the Defendant’s behalf by the Plaintiff in September, 1995 and July, 1996.

Also, the learned trial Judge wrongly awarded in favour of the Respondent N10 million general damages for breach of contract and libel after it had ordered the payment of the balance of N502,000.00 by the Appellant to the Respondent as specific performance of the contract.

Also contended is that having not rescinded the contract, the Respondent claim of N502,000.00 as specific performances is inconsistent with his claim for general damages for breach of same contract. The learned trial Judge awarded the general damages without stating whether the amount awarded is for loss of business or loss of profit or measure or the basis of its assessment. On that basis, he urged on this Court to intervene and placed reliance on the case of Acme Builders Ltd vs. K.S.W.BV (1999) 2 NWLR (pt. 590) 288 at 305.

It is submitted that general damages cannot be awarded for damages for breach of contract as general damages belong to the realm of torts. See Ndinwa vs. Igbinedion (2001) 5 NWLR (pt. 705) 140 at 151.

It is on the basis of the above that it is submitted that the award of both the sum of N1.9 million and N10 million as damages in favour of the Respondent after the award of N502,000.00 which naturally flowed or arose from the alleged breach amounts to double compensation in favour of the Respondent. See Ndinwa vs. Igbinedion (supra). This is double compensation which the Courts frown at. See Texaco Nig. Ltd Plc vs. Kehinde (2001) 6 NWLR (pt. 708) 244 at. The Court is urged to interfere with the two awards of N1.9 million and N10 million general damages and set same aside.

The Court is urged to resolve this issue in favour of the Appellant.

ISSUE FOUR
Whether it was not wrong for the learned trial Judge to award the sum of N10 million as general damages against the Defendant/Appellant for both breach of contract and libel at the same time without specifying or categorizing separately the award for the breach of contract and the award for the libel when none of the two causes of action is proved by the Plaintiff/Respondent. This issue is formulated from ground 7.

To argue this issue, learned Appellant counsel submitted that it was wrong for the trial Court to award the sum of N10 million as general damages for both breach of contract and libel conjunctively without specifying or categorizing separately the quantum of award for the breach of contract and the award for the libel. It is wrong to lump the awards for the two separate causes of action together. Breach of contract and libel are two separate and distinct causes of action and assessment of damages in respect of each of them are guided by different principles. The assessment of damages in respect of each ought to have been treated separately and the award for each specified categorically without giving room for speculation.

Also that the award is speculative and the Court should not base its action on speculation or give room for speculation. Having not categorized or specified the general damages for the alleged breach of contract, the learned trial Judge, no doubt, based the award on wrong principles of law. The Court of Appeal can interfere and disturb the award of damages by the lower Court if it is convinced that the trial Court acted on a wrong principle of law or the amount awarded is ridiculously too high that there was an entirely erroneous estimate of damages. Nwobosi vs. A.C.B. Limited (supra) at page 680 paras A-B ratio 8.

It is further submitted that there is no cogent and reliable evidence of the Respondent to support the allegation of breach of contract and libel before the learned trial Judge made the award of N10 million in favour of the Respondent for both causes of action.

The Court is urged to resolve this issue in favour of the Appellant.

ISSUE FIVE:
Whether it was not wrong for the learned trial Judge to have awarded general damages for libel in favour of the Plaintiff/Respondent without first of all making a finding as to whether or not the extraordinary defamatory imputation alleged by the Plaintiff/Respondent were capable of such imputations and if they were, whether they were in fact defamatory of the Plaintiff/Respondent and whether there was proof of libel having regards to the evidence before the Court. This issue is formulated from grounds 4, 8 and 9.

Learned Appellant counsel referred to Exhibit C written to the Respondent’s bankers on the 13th August, 1996. It is submitted that Exhibit C though alleged to be defamatory is not capable of conveying defamatory meaning especially when the words complained of are given their natural and ordinary meaning. Therefore, no civil action for defamation will be maintained unless the words complained of have more than their ordinary meaning of words used and the onus will be on the Respondent to prove the extraordinary meaning of the words used. See Esenowo vs. Ukpong (1999) 6 NWLR (pt. 608) 611 at 617.

Furthermore, it is submitted that the words complained of by the Respondent in Exhibit C do not reflect on the trading or business reputation of the Respondent who is a company.

The Statement of Claim for defamation must show that the words complained of were published on a stated occasion to a named person or persons other than the Plaintiff. Where the action is based on letter or memorandum, the Plaintiff should specify the person or persons to whom the libel was published. See Fawehinmi vs. Akilu (1994) 6 NWLR (pt. 351) 387. Also Nsirim vs. Nsirim (1990) 3 NWLR (pt. 138) 285.

He asserted that Exhibit C does not contain any falsehood in its content as alleged by the Respondent. Also that Exhibit C cannot be the reason why Union Bank recalled the facility to the Respondent as alleged and also that the said Exhibit C does not contain a libelous article.

The Court is urged to resolve this issue in favour of the Appellant.

ISSUE SIX:
Whether it was not an award of double compensation in favour of the Plaintiff/Respondent when after awarding the sum of N1.9 million to the Plaintiff/Respondent as the damages and losses he sustained for the breach of contract, the learned trial Judge still went ahead to award in favour of the Plaintiff/Respondent another sum of N10 million as damages for breach of the same contract and libel. This issue is formulated from ground 10.

It is submitted that the award of N10 million general damages as both damages for breach of contract and libel after awarding the damages of N1.9 million in favour of the Plaintiff in respect of the same cause of action amounts to double compensation. The law frowns at double compensation in the award of damages to a successful litigant. See Texaco (Nig) Plc vs. Kehinde (2001) 6 NWLR (pt. 708) 224 at 242 para. A-B.

It is trite that in a claim for special and general damages if all the losses suffered by a Plaintiff have been compensated for by an award of special damages, the Court should refrain from awarding general damages to the Plaintiff in order to avoid double compensation. See Ndinwa vs. Igbinedion (2001) 5 NWLR (pt. 705) 140 at 150 paras. B-C, Eholor vs. Idahosa (1992) 2 NWLR (pt. 223) 323; Imo Concorde Hotel Limited vs. Anya (1992) 4 NWLR (pt. 234) 210, Honika Sawmill Limited vs. Hoff (1992) 4 NWLR (pt.238) 673.

By the law against double compensation, a party who has been fully compensated under one head of damages for a particular injury cannot be awarded damages in respect of the same injury under another head. See Artra Ind. Ltd vs. N.B.C.I. (1997) 1 NWLR (pt. 483) 574 at 597 – 598. The law frowns against double compensation and will not allow a litigant who makes claims for specific performance or specific losses suffered by him to add another figure under the head of general damages. See Federal College of Education vs. Anyanwu (1997) 4 NWLR (pt. 501) 533 at 561 paras. G-H, Shell Petroleum Development Co. Ltd vs. Tiebo VII (1996) 4 NWLR (pt. 445) 657, Onaga vs. Micho & Co. (1961) 2 SCNLR 101, Armels Transport Ltd vs. Transco (Nig) Ltd (1974) 11 S.C. 237, UBN vs. Odusote Bookstores Ltd (1994) 3 NWLR (pt. 331) 129.

It is trite that general damages cannot be awarded in an action for breach of contract as general damages belong to the realm of torts. It does not matter whether the action is for breach of contract between master and servant where the employment is determinable by notice of a stipulated length of time or breach of building contract, construction of boreholes or contract by tender for supply of materials and installation or for the construction of doors and windows. The principle for the award of damages remains the same. See Ndinwa vs. Igbinedion supra at page 151 para. E-G. It is submitted that the Respondent is not entitled to the sums of N1.9 million and N10 million awarded to it as damages in the same cause of action after awarding to it the sum of N502,000.00 in respect of the same contract and the Court of Appeal is to set aside the award of N1.9 million and N10 million made in favour of the Plaintiff/Respondent by the trial Court.

The Court is urged to resolve this issue in favour of the Appellant.

ISSUE SEVEN:
Whether the proceedings in the trial High Court and the judgment thereof are not a nullity having regard to the fact that the Respondent is not a legal personality having the capacity to sue and be sued. (Ground 11 of the additional grounds of appeal)

Learned Appellant’s counsel submitted that the proceedings at the trial Court and the judgment arising therefrom in respect of this matter are all a nullity. Also that even though the Respondent had averred in paragraph one of his Statement of Claim that it is a limited company and even though the Appellant erroneously admitted it in paragraph 2 of its statement of defence, the parties cannot by consent confer jurisdiction on the Court nor enlarge the jurisdiction of the Court by estoppels. See Shitta-Bey vs. A. G Federation (1998) 10 NWLR (pt. 570) 392 at 415, (1986) 1 NWLR (pt. 16) 264.

The Respondent’s case is itself incompetent because it is a non juristic person. Being incompetent the action filed by the incompetent party is itself incompetent. If both the party and the action are incompetent, the Court becomes incompetent and lacks the necessary jurisdiction to entertain and determine the suit. See Witt & Bush Limited vs. Goodwill & Trust Investment Limited supra at page 197 paras. B-D.

The failure of the Defendant/Appellant to challenge the non-juristic personality or the legal capacity of the Plaintiff/Respondent at the trial Court does not confer competence and jurisdiction which the trial Court did not have. This is because the parties cannot by consent confer jurisdiction on the Court or enlarge the jurisdiction of the Court by estoppels. See Shitta-Bey vs. A.G. Federation (1998) 10 NWLR (pt. 570) 392 at 415 paras. A-B, Victoria Okotie-Eboh vs. Adolo Okotie-Eboh (1986) 1 S.C 479 or (1986) NWLR (pt. 16) page 264.

It is the submission of learned counsel that the Respondent not having been registered as a legal personality lacks the necessary capacity to file the action at the trial Court.

As a result, the trial Court had no competence and the jurisdiction to entertain the suit.

The Court is urged to resolve this issue in favour of the Appellant and consequently to allow the appeal.

The Respondent raises only two issues for determination as follows:
(i) Whether the trial Court was justified by the available evidence to make the various monetary awards it made in favour of the Respondent in this suit.
(ii) Whether the contents of Exhibit c are defamatory of the Respondent given the circumstances in which Exhibit c was made by the Appellant?

In arguing issue 1 above, it is submitted for the Respondent that there is abundant uncontradicted and unchallenged evidence adduced by the Respondent in the Court below to justify the decision of the honourable trial Court to make the various monetary awards he made in the case, especially the award on the outstanding debt of N502,000.00.

The Respondent in its Statement of Claim and reply to the Appellant’s further Amended Statement of Defence stated clearly the two contracts from which the debt of N1,502,000.00 arose.

Learned Respondent’s counsel also stated that the first prosecution witness (PW 1) in the evidence in chief provided clear details of the two transactions and how the said debt of N1,502,000.00 arose. He also gave unchallenged evidence of how the sum of N1 million was paid to the Respondent through Exhibit E leaving a balance of N502,400.00 unpaid till the action was commenced in Court.

Even under cross-examination, the PW1 insisted that the debt of N1,502,000.00 was unpaid until Exhibit E was made leaving the balance of N502,400.00. Even the only evidence of the defence witness DW1 under cross-examination confirmed that the Respondent carried out two contracts for the Appellant.

The Respondent also made demands for the payment of the sum of N1.5 million in Exhibits M and N tendered by the Appellant. After the said demands the Appellant paid the sum of N1 million only. The question that the Appellant failed to answer is, why did the Appellant pay the sum of N1 million to the Respondent if it was not indebted to the Respondent? It is submitted that the above statement by the DW1 and Exhibits M and N tendered by the Appellant amounts to an admission of the existence of the contract and the debt by the Appellant. The Appellant did not deny the existence of the debt after receiving Exhibits M and N. The Appellant’s testimony before the trial Court did not offer any strong or material denial of the alleged debt. The failure to clearly deny the said debt by the Appellant is fatal to the Appellant’s case because such failure to deny an implied admission of that fact. See Section 75 Evidence Act. See also Din vs. African Newspaper Ltd (1990) 4 NWLR (pt. 139) 405.

It is therefore contended that the face of the above clear admissions by the Appellant and payment of Exhibit E to the Respondent, the question whether there was a valid contract between the Respondent and the Appellant is not an issue that arises in this appeal. Therefore the submissions of learned counsel for the Appellant as to whether the contract existed in the first place are entirely misconceived and should be discountenanced by this Honourable Court as a mere academic exercise because that is not an issue that was canvassed by the parties in the trial Court. The parties knew of the existence of the contract and the trial was about the contract. See Olale vs. Ekwelendu (1989) 4 NWLR (pt. 115) pg 326 at pg. 360 paras. F – G.

The trial Court was therefore right in holding that there were two contracts between the Appellant and the Respondent and that the total sum outstanding on the two contract was N1,502,400.00. The payment of the of N1 million by the Appellant through Exhibit E reduced the sum to N502,400.00. There is therefore, adequate and more than enough evidence to support the finding of the trial Court that the Appellant is indebted to Respondent in the sum of N502,400.00 on the contract.

Also, it is submitted that the Appellant did not offer any credible evidence to contradict the evidence of the Respondent on the issue of the 11KVA contract. Infact, the DW 1 contradicted himself on this point when he testified that he did not know the contract value of the 11KVA contract and later testified that the contract value of the 11KVA contract is N980,000.00.

Furthermore, the DW 1 cannot approbate and reprobate on this important point and therefore there is no credible evidence to contradict the evidence of the PW1 on the point. The trial Court was right to ignore such contradictory evidence by the Appellant and to make the award he made in respect of the claim for N502,000.00.

On the argument of the Appellant, whether the provisions of the Statute of Frauds applies in this case, it is submitted that the statutes of fraud does not apply to the facts of this case and that the case of Agbahowe vs. Osayiobosa (1996) NWLR 360 relied upon by the Appellant in pages 4 and 6 of Appellant’s brief has no application in this case.

Also even if there is any requirement for evidencing the contract in writing Exhibits E, M and N satisfy that requirement for written evidence of the contract and the Appellant’s argument to the contrary is without foundation and should be discountenanced entirely.

The Court is urged to hold that the trial Court was satisfied and justified to hold that the Appellant was indebted to the Respondent in the sum of N502,400.00.

The second monetary award made by the Court in favour of the Respondent is the sum of N1.9 million as loss of profit. The Respondent in its Statement of Claim paragraphs 4 – 8 and in its evidence through the PW1 stated that the N1.9 million was a specific loss suffered by the Respondent due to the Appellant refused to pay the debt that the Appellant owed the Respondent and not because the Appellant wrote Exhibit C to the Union Bank Plc.

Respondent contended that the question was raised that the claim of N1.9 million as special damages was not claimed and strictly proved. But on the other hand, the requirement for strict proof of special damages is not the same as proof beyond every shadow of doubt. It is just proof that would readily lend itself to quantification and assessment. See Shell Pet. Dev. Coy (Nig) Ltd vs. Amaro & Ors. (2000) 10 NWLR (pt. 675) 240 at 277.

In the instant case, the Respondent gave specific particulars of the Shell contract in his Statement of Claim and led credible evidence to establish the damages at the trial.

The said evidence is sufficiently clear as to quantification and assessment of the damages suffered by the Respondents. The Appellant did not offer any challenge to the Respondent’s said evidence. The Respondent has adequately discharged the responsibility to plead and proof the claim for the sum of N1.9 million.

The law is that where a claim for specific damages was not challenged both in the pleadings and in evidence was supported by pleadings and the nature of the evidence adduced is credible, then the trial Court has no option but to accept and act on it. See Bello vs. Eweka (1981) 1 S.C p. 101; N.B.C Plc vs. Borgundu (1999) 2 NWLR (pt. 591) pg 408 at p. 430 paras. B-C.

It is submitted that there is no law precluding the trial Court from awarding damages that is properly pleaded and proved merely because it was not labeled special or general damages. All that is required of the Respondent is to plead and prove that particular head of claim. If the Court is satisfied with the evidence, the Court shall award the claim although it is not specifically labeled specific or general damages or loss of profit. See Attorney General, Oyo State vs. Fairlakes Hotels Ltd (No. 2) (1989) 5 NWLR (pt. 121) p. 255 at p. 279 paras. A-G.

The 3rd monetary award made by the trial Court is in respect of N10 million for libel as contained in Exhibit C because the trial Court found the said Exhibit C as being libelous. It is submitted that the words complained of and the entire Exhibit C in the circumstance, it is made was defamatory of the Respondent.

The law is that in determining whether the words complained of are defamatory in their ordinary and natural meaning, those words should be considered and construed in the context and circumstances in which the words were made. See Iloabachie vs. Phillips & Ors. (2000) 14 NWLR (pt. 686) p. 43 at P. 56 paras. A.; Agbanelo vs. U.B.N. Ltd (2000) 13 NWLR (pt. 666) 534.

In the instant case, the Appellant wrote Exhibit C on 13/8/1996 and it was stamped and received by the Respondent’s Bankers – Union Bank Plc on 15/8/96. Exhibit C specifically stated that the Appellant has no business relationship whatsoever with the Respondent. However, the same Appellant in July, 1996 had jointly with Belhope Plastics Ltd, awarded a contract of N193,800.00 to the Respondent. Exhibit C was written about one month after the Appellant had taken part in awarding the above contract to the Respondent.

Furthermore, the Appellant who claimed he had no business whatsoever with the Respondent in Exhibit C, on 28th October, 1996 delivered to the Respondent a cheque for N1 million. (Exhibits E in the list of Exhibits attached to the Record of Appeal).

Both the PW1 and DW1 testified before the trial Court that the sum of Exhibit E was payment made by the Appellant to the Respondent for contract carried out by the Respondent for the Appellant. Infact, the DW 1 admitted in cross-examination that there existed a business relationship between the parties in 1995 and 1996.

Learned Respondent’s counsel posed a question thus:
“In what circumstance was Exhibit C written?”

His answer is that it was written when the ongoing business relationship existed between the Respondent and the Appellant as earlier on highlighted. That goes to show that Exhibit C was falsely written and maliciously to mislead the Respondent’s bankers about the person of the Respondent and its method of doing business. Also, that the contents of Exhibit C were written to undermine and destroy the banker/customer relationship between the Respondent and Union Bank.

Exhibit C was sent to Union Bank Plc and the Bank immediately reacted in Exhibit D. Both PW 1 and PW 2 in their testimonies gave evidence of the negative and adverse effect of Exhibit C on the banker/customer relationship between the Respondent and the Bank. The Appellant on its own side did not offer any evidence to contract the evidence adduced for the Respondent on this issue. (See Exhibit D of the list of Exhibits attached to the Records of Appeal and pages 47 and 55 of the Records of Appeal).

Finally, on the circumstances surrounding the making of Exhibit C, the question is whether the Appellant was aware of the type of relationship existing between the Respondent and Union Bank Plc. He answered the question in the alternative that the Appellant knew it was banker/customer relationship as shown in Exhibits B, M, N on the list of Exhibits attached to the records. It is on the basis of the above that the words written in Exhibits C are defamatory when taken in the contest of the relationship between the Appellant and the Respondent at the time of making Exhibit C.

It is submitted that Exhibits C was defamatory of the Respondent and the ordinary reasonable man in Union Bank who read Exhibit C immediately concluded that the Respondent was acting in a dubious manner by claiming a business relationship with the Appellant when the Appellant said there was no such business relationship in existence.

The trial Court he contended was justified in his findings that Exhibit C was libelous of the Respondent.

The other important requirements to ground libel are that the defamatory words must be published to a third party, the words must refer to the Plaintiff, the words must be false and without any justifiable legal excuse for the publication of the words. See Iloabachie vs. Phillips & Ors. supra p. 61-62 paras. F-A.

The above requirements have been met in the instant case and therefore the honourable trial Court was justified to hold that Exhibit C was defamatory of the Respondent. This Honourable Court is urged to uphold the findings of the Court below on this issue that the words complained of are defamatory because they are false and there was no justifiable legal grounds for the Appellant to publish Exhibit C to Union Bank Plc, except that it was done maliciously with intent to disparage the Respondent in the eyes of Union Bank Plc.

Furthermore, the Court is urged to discountenance the multitude of submissions made for the Appellant and the plethora of authorities cited in support of the arguments by the Appellant’s counsel on their issue 5 because they are based on a fundamental misconception of the Respondent’s case. They have no relationship to the issues before this honourable Court.

For instance the argument that the trial Court reached his conclusion as to whether Exhibit C was defamatory by an inference of defamatory imputation in the circumstance of the case that came by reason of a fanciful imagination. The facts and circumstances of this case as established in evidence leave no other possible inference than that Exhibit C is maliciously defamatory of the Respondent. The facts of the case of Agbanelo vs. U.B.N supra are very different from the facts of the instant case and as such the dictum of Ayoola JSC relied upon by the Appellant cannot avail him. The words complained of in Agbanelo’s case are mere abbreviations, but Exhibit C is a two-paragraph letter written with much defamatory venom. The bare facts and circumstances of Exhibit C show that it is defamatory and that the Court below applied no fanciful imagination before reaching that conclusion.

It is submitted further that the Appellant failed woefully to raise any of the known defences to libel at the trial because it had no defence to the claim that Exhibit C is defamatory. Exhibit C on its face reflects the trading and business reputation of the Respondent. See Edem vs. Orpheo Nig. Ltd (2003) 13 NWLR (pt. 838) 537 at 556.

The statement complained of, injured the reputation of the Respondent and its financial ability to continue to engage in its line of business. The Respondent was grossly injured in his reputation in his business and that the Respondent suffered tremendous injury in its financial credit thereby.

The Respondent gave succinct evidence of the financial difficulties and reversals it suffered by reason of the statement in Exhibit C. The Appellant did not offer any evidence in rebuttal.

It is submitted that Exhibit C was defamatory and the trial Court was justified to make the monetary award it made in favour of the Respondent. See Clerk & Kubdsell on Torts 15th Edition, P. 906 paragraphs 18 – 20; Edem vs. Orpheo Nig. Ltd supra p. 537 at p. 554 paras. G-F, 561 paras. G-H, Alawiye vs. Ogunsanya (2004) 4 NWLR (pt. 864) p. 486 at p. 516 paras. F-G.

Finally, on the award of N10 million by the Court below, it is submitted the Court found that Exhibit C was defamatory of the Respondent and that its publication by the Appellant in the circumstances above caused the Respondent serious damage, the award of the above sum by the Court below was justified in the circumstances of this case.

For instance, PW1 and PW2 testified in respect of the claim for general damages as concerning only the cause of action relating to libel. The Respondent did not make any claim for general damages for breach of contract. Respondent only led evidence to establish the specific losses he suffered by reason of the breach of the contract and led evidence to show the general damages he suffered due to the defamatory publication by the Appellant. A careful study of the reasoning of the Court shows that the award of N10 million is related only to the case of libel and not breach of contract. The honourable Court did not award the sum of N10 million as a general damages for breach of contract because the Court did not make any such findings throughout his judgment.

It is submitted that the use of general damages in relation to breach of contract by the Court below is a mere error that has no influence on the reasoning and judgment of the Court.

Furthermore, the Appellant’s counsel also made heavy weather of the use of the word “spoken” rather than “written” by the Court below in his judgment. That there is a mere slip that did not cause any miscarriage of justice and the Court should discountenance the submission of counsel thereon. It is not every slip or error in a judgment that leads to its reversal. It is only those errors that influenced or affected the reasoning of the Court in arriving at his judgment that may lead to its reversal on appeal. See Ibwa vs. Pavex Int. Co. Ltd (2000) 7 NWLR (pt. 663) p. 105 at 125 paras. F-G.

In answer therefore, to the submission of Appellant’s counsel to double compensate in his issue 3, that award of N10 million damages is an award that was properly made for the malicious defamation of the Respondent by the Appellant.

He stated that the judgment of the lower Court clearly states the award of N1.9 million is for the amount sustained as loss for the termination of the contract and confirmed strictly on the contract.

The Appellant it is submitted has not made out any case of double compensation and the Court is urged to discountenance the authorities cited in support of double compensation.

Issue 4 raised by the Appellant is based on the misconception the reasoning and decision of the Court as his Issue 3. Therefore, it is submitted that the Court did not award the sum of N10 million as general damages for breach of contract. The award is in respect of libel alone.

Appellant’s issue no. 7 challenges the legal status of the Respondent and the competence of the suit.

The Respondent in paragraph 1 of the Statement of Claim raised the issue of its legal status. The status was not disputed because the Appellant in paragraph 2 of the further amended Statement of Defence specifically admitted that the Respondent is a limited liability company engaged in electrical construction contracts.

This admission by the Appellant automatically disposed of the burden on the Respondent to prove its legal status by evidence at the trial, because what is admitted need no proof – Agbanelo vs. Union Bank Ltd supra.

The whole trial in the Court below was contested on the ground that the Appellant has admitted the legal status of the Respondent.

The Appellant is estopped from contending otherwise. The Appellant cannot blow hot and cold at the same time. The cases of Shitta-Bey vs. AG of the Federation (1998) 10 NWLR (pt. 570) 392 at 415 paras. A-B and Victoria Okotie-Eboh vs. Adolo Okotie-Eboh (1986) 1 NWLR (pt. 16) 264 cited by the Appellant are not on the same footing with the instant case. The Appellant admitted the legal status of the Respondent and removed that question from contention.

It is submitted that the question of the legal status of the Respondent now raised by the Appellant is not a case of raising a fresh issue on appeal but it is one of denying a fact at the appeal stage, after admitting the same fact during trial of the Court below and this is an abuse of the Court process.

Finally, there is a prima facie evidence before the Court of Appeal of the incorporation of the Respondent at the Corporate Affairs Commission and the whole argument at the legal status of the Respondent should be ignored. See Witt & Bush vs. Goodwill & Trust Investment Ltd (2004) & NWLR (pt. 874) p. 179 at p. 199 paras. G – H.

It is submitted that injustice would be done to the Respondent if the Appellant is not allowed to deny what it had specifically admitted at the trial. See Ezeonwu vs. Onyechi (1996) NWLR (pt. 438) 499 SC.

It is submitted further that the issue of incompetence of the Respondent does not arise in this case because any fact that is admitted during the trial in the Court below cannot become an issue in the Court of Appeal. See Olale vs. Ekwelendu (1989) 4 NWLR (pt. 116) p. 326 at p. 360 paras F-G and Olufosoye vs. Olorunfemi (1989) 1 NWLR (pt. 95) p. 26 at p. 49 para. C.

In the instant case, since the Appellant specifically admitted the fact of Respondent’s incorporation, that fact was not an issue in the trial Court and cannot become an issue in the Court of Appeal, except under certain special circumstance that do not exist in the instant case. See Ezewani vs. Onwordi (1986) 4 NWLR (pt. 33) p. 27 at p. 48 paras. B-F.

Moreover, all the cases cited on the issue by the learned Appellant’s counsel are distinguished from the instant case because prompt objection was raised in those cases about the status of the Plaintiff in the trial Court. In the instant case, the Defendant specifically admitted the legal status of the Respondent. This Honourable Court is to discountenance the submissions of the Appellant’s counsel and affirm the judgment of the trial Court.

Finally, learned Respondent’s counsel contended that the defamatory nature of Exhibit C is very clear to any reasonable person Exhibit D that was written by a staff of Union Bank Plc in reply to Exhibit C indicates that Union Bank saw the Respondent as a crook. Therefore, Exhibit C is defamatory in the circumstance in which it was written. This Honourable Court is urged to uphold the judgment of the trial Court including the award of N10 million as damages for libel.

The legal status of the Respondent was not raised as an issue in the trial Court. The status was an admitted fact at the trial. It cannot be relitigated on appeal. The Appellant having admitted the existence of the Respondent is estopped from denying the fact.

The Court is urged to resolve this issue in favour of the Respondent and to dismiss the appeal.

RESOLUTION OF ISSUES
The Appellant in this appeal formulated about seven issues for determination.
The Supreme Court has stated and restated that it abhors the proliferation of issues where only a few issues would determine the appeal. Ogbonagu JSC in G.K.F Investment Nig. Ltd vs. Nigeria Telecommunication Plcs (2009) 15 NWLR (pt. 1164) 344 put it simply this way: “I need to stress that this Court discourages the proliferation of issues.” Musdapher JSC as he then was, was more emphatic. In Omega Bank Ltd Plc vs. O.B.C. Ltd (2005) 8 NWLR (pt. 928) 547 stated thus:
“This Court has on several occasions condemned the proliferation of issues in briefs of argument. It is not the number of issues in briefs of argument for determination formulated that determines the quality of a brief or that determines the success of an appeal.”
Edozie JSC in Ibrahim vs. Ojomo (2004) 4 NWLR (pt. 862) 89 was just emphatic when he said as follows:
“Prolixity or proliferation of issues is not ideal as it tends to obscure the core issues to be determined and tends to reduce the issues to trifles. Appeals are not won on large number or quality of the content of the grounds of appeal and issues. See Mozie & Ors vs. Mbamalu & Ors (2006) 15 NWLR (pt. 1003) 466, Ugo vs. Obiekwe (1989) 1 NWLR (pt. 99) 566, Anon Lodge Hotels Ltd vs. Mercantile Bank of Nigeria Ltd (1993) 3 NWLR (pt. 284) 721.”
I have glanced through the issues and grounds of appeal raised in this appeal. It appears to me that the said proliferation of issues reflects on the understated issues.
For instance, issues 3, 4 and 6 are materially the same and they repeat and pronounce the same question three times. Similarly issues 1, 4 and 5 are mere repetition of the question being knocked about. As well, the same instances of repetition are also extended even to the grounds of appeal. A few examples may be brought to light. The Appellant’s ground 1 in the notice and ground 6 of the additional grounds of appeal are materially the same. Even ground 2 of the notice and ground 5 of the additional grounds of appeal are playing the same music but dancing same in different tune. Infact, they are Reggae music and dancing Ajasco tune.

This is the reason why the Supreme had condemned the proliferation of issues in briefs of argument to be determined. See Omega Bank Nig. Ltd vs. O.B.C Ltd. Consequently, those grounds particularly grounds 5 and 6 of the additional grounds of appeal are hereby struck-out for being a repetition of grounds 1 and 2 of the notice and grounds of appeal.

In addition, even the notice and grounds of appeal and also the additional grounds of appeal are in breach of Order 3 Rule 2(3) of the Court of Appeal Rules as the grounds of appeal are not numbered serially and/or consecutively. This particular issue though germane as it may look is not substantial enough as to render the notice and the additional grounds of appeal.

The issues for determination as formulated by the Respondent brought out the core issues for determination as required in this Appeal. I shall therefore adopt same for the determination of this appeal on the merit thus:
(1) “Whether the trial Court was justified by the available evidence to make the various monetary awards it made in favour of the Respondent in this suit.”
(2) Whether the contents of Exhibit C are defamatory of the Respondent given the circumstances in which Exhibit C was made by the Appellant.

ISSUE ONE
“Whether the trial Court was justified by the available evidence to make the various monetary awards it made in favour of the Respondent in this suit.”

The resolution of this issue covers issue 1, 2, 3 and 4 of the Appellants issues for determination. The argument of the Appellant is that there is no credible evidence on record to show that the Appellant is indebted to the Respondent in the sum of N502,000.00 more so as the additional work allegedly given to the Appellant by the Respondent in respect of 11KVA line was based on oral contract. Also that in the absence of a consensus between the parties, there is no valid contract. See P.T.I. vs. Uwamu (2001) NWLR (pt. 705) 113 at 23, Okunbole vs. Oyagbolo (1990) 4 NWLR 9 (pt. 147) 723.

From the Respondents’ Statement of Claim and reply to the Appellants further amended statement of defence, it is stated that there are two contracts from which the debt of N1,502,000.00 arose. After several demands for payment of N1,502.000.00, by the Respondent, the Appellant paid to the Respondent the sum of N1 million through cheque (Exhibit E) as full payment which the Appellant did not deny. Also, the tendering of the various letters of demand for the N1,502,000.00 for Exhibits M and N goes to show the existence of a contractual relationship otherwise the Appellant could not have paid the sum of N1 million to the Respondent if it was not indebted to the Respondent.

I think that it is safe to conclude at this junction that the Respondent has proved that the Appellant owes her the sum of N1502,000.00 being the outstanding balance unpaid for the contract it awarded to the Respondent. Also Exhibit Q is the letter showing that the payment was full and final. The parties know of the existence of the contract and even this trial is all about the contract. See Olale vs. Ekwelendu (1989) 2 NWLR (PT. 591) 408 at 430; Bello vs. Eweka (1981) 1 SC page 101.

The Appellants have argued that by Section 4 of the statutes of fraud 1677 (a statute of general application) which is applicable in the Eastern States of Nigeria, the content is not enforceable because it is not evidenced by a memorandum in writing. Therefore, the oval content is vitiated by absence of writing. See Agbahowe vs. Osayiobosa (1966) NMLR 360.

What is critical at this stage is that the two contracts have all been executed and payment made upon demand. In the case of Onayemi vs. Idowa (2008) 9 NWLR (pt. 1092) 306. The Court said “….. Consequently, where as in this case, there is part performance of an unwritten contract, its specific performance will be enforced as if the terms of the contract have been reduced into writing……” Babalola JCA (as he then was) also had this to say in the case of Mba-Ede vs. Okufo (1990) 2 NWLR(pt. 135) 787. In this case, the contract between the Appellant and the Respondent was never reduced in writing but the law will not allow the provisions of this law to be used as an instrument of fraud and so when there is part performance of a contract, its specific performance will be enforced as if the terms of the contract have been reduced into writing. Also in Ogundalu vs. Macjob (2006) 7 NWLR (pt. 973) 148 165, the Court held and said:
“… However it is settled that a Court of law will not allow the absence of writing to be used as an engine of fraud in a Court of justice. A Court will enforce the contract if it is found that there is an agreement from the fact before the Court…..”
Again in the case of Lawal vs. Ejidike (1997) 2 NWLR (pt. 487) 319 at 331, Ubaezanu (JCA) held and said:
“… the law will not allow the absence of writing to be used as an engine of fraud unless it is a case where the law requires the transaction to be in writing.”

This is not the position in his suit and so the argument and submission of the Appellant that the absence of writing vitiates the contract is hereby discountenanced and of no consequence. This aspect of this appeal is resolved in favour of the Respondent.

Another monetary award made by the learned trial judge is the award of N1.9 million in the form of special damages in favour of the Respondent. The Appellant had contended that the said award was for a different contract which has no excuse and does not flow naturally from the alleged breach. Also that the said N1.9 million was not claimed and strictly proved.

To prove the award of N1.9 million the Respondents in their Statement of Claim paragraphs 4 – 8 and also in evidence in Court through PW1 stated that the N1.9 million was for a specific loss suffered by the Respondents due to the Appellant refusal to pay the debt owed the Respondent and not because the Appellant wrote Exhibit C to the Union Bank Plc.

At the trial Court, the Respondent gave credible evidence and specific particulars as per his pleadings of the Shell contract to establish the damages at the trial. The said evidence is sufficiently clear as to quantification and assessment of the damages suffered by the Respondent. Inspite of all the above, the Appellant did not offer any challenge to the evidence of the Respondent. By so doing, it is safe to conclude that the Respondent has adequately discharged the responsibility to plead and prove the claim for the sum of N1.9 million.

It is the law that where a claim for specific damages was not challenged both in the pleadings and in evidence in Court and the said evidence is supported by evidence is supported by pleadings and the nature of evidence adduced is credible, then the trial Court has no option but to accept and act on it. See Bello vs. Eweka (1981) 1 SC 101, NBC Plc vs. Borgundu (1999) 2 NWLR (pt. 591) 408 at 430.

All that is required of the Respondent at this level is to plead and prove that particular head of claim. If by so doing and the Court is satisfied with the evidence, the Court shall award the claim even though it is not specifically labeled specific or general damages or loss of profit. See A/G Oyo State vs. Fair Lakes Hotels Ltd (No. 2) (1989) 5 NWLR (pt. 121) 255 at 279.

I resolve this issue in favour of the Respondent and held that the trial Judge was not wrong in awarding N1.9 million in the form of special damages in favour of the Respondents.

Another monetary award made by the trial Court is in respect of N10 million for libel contained in Exhibit C as being libelous. Appellant’s counsel had argued that it was wrong for the trial Court to have awarded N10 million for general damages without stating whether the amount is for loss of business or loss of profit or the basis of the assessment and thereupon urged on the interaction of this Court. See Acme Builders Ltd vs. K.S.W.B (supra).

On the other hand, the Respondent contends that the words complained of and the entire Exhibit C in the circumstance in which they were made was really defamatory of the Respondent.

In the instant case, the Appellant wrote Exhibit C on 13/8/1996 and it was stamped and received by the Respondent’s Banker – Union Bank Plc on 15/8/96. Exhibit C specifically stated that the Appellant has no business relationship whatsoever with the Respondent. However, the same Appellant in July 1996 had jointly with Belhope Plastics Ltd, awarded a contract of N193,800 to the Respondent. (Page 45 lines 3 – 10 Record of Appeal). Exhibit C was written about one month after the Appellant has taken part in awarding the above contract to the Respondent.

Furthermore, the Appellant who claimed he had no business whatsoever with the Respondent in Exhibit C, on 28th October, 1996 delivered to the Respondent a cheque for N1 million (Exhibit E in the list of Exhibits attached to the Record of Appeal).

Both the PW1 and DW1 testified before the trial Court that the sum in Exhibit E was payment made by the Appellant to the Respondent for contract carried out by the Respondent for the Appellant. Infact, DW 1 admitted in cross-examination that there existed a business relationship between the parties in 1995 and 1996. One may ask this pertinent question: In what circumstance was Exhibit C written? It was written when an ongoing business relationship existed between the Respondent and the Appellant as highlighted in the above paragraphs. Therefore, Exhibit C was written falsely and maliciously to mislead the Respondent’s bankers about the person of the Respondent and its method of doing business. The contents of Exhibit C were written to undermine and destroy the banker/customer relationship between the Respondent and Union Bank.

In addition, one may also ask – why the Appellant wrote Exhibit C at this material time if not to undermine the integrity of the Respondent before the Union Bank Plc and its staff.

Exhibit C was sent to Union Bank Plc and the Bank immediately reacted in Exhibit D. Both PW1 and PW2 in their testimonies gave evidence of the negative and adverse effect of Exhibit C on the banker/customer relationship between the Respondent and the bank. The Appellant on its own side did not offer any evidence to contradict the evidence adduced for the Respondent on this issue. (See Exhibit D of the list of Exhibits attached to the Records of Appeal and pages 47 and 55 of the Records of appeal).

On the basis of the above, it is therefore not plausible to believe or agree with the Appellant submission that there is no cogent and reliable evidence of the Respondent to support the allegation of breach of contract and libel before the Court made the award of N10 million in favour of the Respondent.

The facts and circumstances of this instant case leave no other possible inference in the mind of an ordinary man that Exhibit C is maliciously defamatory of the Respondent.

The facts of the case of Agbanelo vs. U.B.N (supra) are very different from the facts of the instant case and as such the dictum of Ayoola JSC relied upon by the Appellant cannot avail against him. The words complained of in Agbanelo’s case are mere abbreviations, but Exhibit C is a two-paragraph letter written with much defamatory venom. The bare facts and circumstances of Exhibit C show it is defamatory and that the Court below applied no fanciful imagination before reaching that conclusion. I agree with the Court.

Worthy of note here is that of all the known defences to libel, the Appellant did not raise any defence to claim that Exhibit C is not defamatory. On its face value Exhibit C reflects in great measure the trending and business reputation of the Respondent which cannot be overlooked lightly. What is being emphasized here is that Exhibit C injured the reputation of the Respondent and its ability to continue to engage in its line of business before the whole world and Union Bank Plc in particular. The Respondent suffered great injury and it is entitled to damages. The trial Court was therefore justified in making the award it made in favour of the Respondents.

Learned Appellant counsel had submitted that the award of N10 million general damages as both damages for breach of contract and libel after awarding the damages of N1.9 million in favour of the Respondent in respect of the same course amount to double compensation. See Texaco Nig. Plc vs. Kehinde (2001) 6 NWLR (pt. 708) 224 at 242.

It is the correct that the law frowns against double compensation and would ordinarily not allow a party for a specific loss suffered to claim general damages under the head (of special damages). See Federal College of Education vs. Anyanwu (1997) 4 NWLR (pt. 501) 533 at 561.

The reasoning behind this is that it is wrong to adjudge an item of specific loss as general damages when indeed it is a special damage to be strictly proved.

In the instant case, the award of N10 million is for the amount awarded as damages made for malicious defamation of the Respondent by the Appellant. Also, the judgment of the lower Court clearly stated that the award of N1.9 million is for the termination of the contract simpliciter.
In my view, where a party proves to the satisfaction both special and general damages, he would be awarded both. It would be wrong to hold that the N1.9 million damages would compensate for all the hard, difficult and trying moments which the Respondents was subjected to. This is not a case of awarding double compensation which the law abhors, and the Appellant did not succeed in making a case of double compensation in favour of the Respondent. This issue is resolved in favour of the Respondent.

ISSUE TWO
“Whether the contents of Exhibit C are defamatory of the Respondent given the circumstances in which Exhibit C was made by the Appellant?” I have considered this issue extensively when treating issue no. 1 above. I tend to adopt same in respect of this issue and to hold firmly that there is abundant, uncontradicted and unchallenged evidence adduced during trial by the Respondent that the trial Court was justified in making the finding that Exhibit C was defamatory of the Respondent. The facts and circumstances of this case show that Exhibit C was actually defamatory of the Respondent, especially taking into consideration the time and the peculiar circumstances both parties found themselves at the material time. Exhibit C in my humble view is highly defamatory of the Respondent and I so hold.

Accordingly, all the issues considered in this appeal are resolved in favour of the Respondent. The appeal fails and it is hereby dismissed. The judgment of the trial Court in Suit No. PHC/2489/2013 is hereby affirmed. N100,000.00 cost to the Respondent.
Appeal dismissed.

TANI YUSUF HASSAN, J.C.A.: I have had the privilege of reading in advance the leading judgment delivered by my learned brother, PAUL OBI ELECHI, JCA. I agree with the reasoning and conclusions.

The appeal lacks merit. I accordingly dismiss it and affirm the judgment of the trial Court. I abide by the order as to costs.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the privilege of reading the draft of the judgment just delivered by my learned brother, PAUL OBI ELECHI, JCA.

I am in agreement with the reasoning and conclusion in the lead judgment with nothing useful to add thereto.

I too resolved the issues considered in this appeal in favour of the Respondent as done by my learned brother in the lead judgment. The appeal fails and dismissed by me. The judgment of the lower Court in Suit No. PHC/2489/2013 is hereby affirmed.

I abide by the costs of N100,000.00 awarded in favour of the Respondent.

Appearances:

P.O. Nyekwere, Esq. For Appellant(s)

C.N. Ogbonna, Esq. For Respondent(s)