FORTE OIL PLC v. OGUNGBEMILE (2021)

FORTE OIL PLC v. OGUNGBEMILE

(2021)LCN/15017(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, February 09, 2021

CA/A/388/2016

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

FORTE OIL PLC APPELANT(S)

And

OLUSOLA OGUNGBEMILE RESPONDENT(S)

RATIO

WHETHER OR NOT PARTIES ARE BOUND BY THE TERMS OF THEIR AGREEMENT

It is settled and beyond citing of legal authorities that parties are bound by the terms of their agreement, see the case of LARMIE V. DATA PROCESSING MAINTENANCE & SERVICES LTD (2005) LPELR-1756 (SC) where the apex Court held thus:
“The law is trite regarding the bindingness of terms of agreement on the parties. Where parties enter into an agreement in writing, they are bound by the terms thereof. This Court, and indeed any other Court will not allow anything to be read into such agreement, terms on which the parties were not in agreement or were not ad-idem. See Baba v. Nigerian Civil Aviation Training Centre, Zaria (1991) 5 NWLR (Pt.192) 388; Union Bank of Nigeria Ltd. v. B. U. Umeh & Sons Ltd. (1996) 1 NWLR (Pt.426) 565; S.C.O.A. Nigeria Ltd. v. Bourdex Ltd. (1990) 3 NWLR (Pt. 138) 380 and Koiki v. Magnusson (1999) 8 NWLR (Pt. 615) 492 at 514.”
Per MOHAMMED ,J.S.C ( P. 46, paras. D-F )
See also the case of EDILCON (NIG) LTD V. UBA PLC (2017) LPELR-42342(SC); UWAH & ANOR V. AKPABIO & ANOR (2014) LPELR-22311 (SC); DALEK (NIG) LTD V. OMPADEC (2007) LPELR-916(SC). PER NIMPAR, J.C.A.

WHETHER OR NOT EXTRINSIC EVIDENCE IS ALLOWED TO VARY THE TERMS OF A CONTRACT

It is also settled that extrinsic evidence is not allowed to vary the terms of the contract, see LEWIS V. UBA (2016) LPELR 4066(SC) where the Court held that:
“The general rule is that where the parties have embodied the terms of their agreement or contract in a written document as it was done in this case, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument: See Mrs. O. D. Layade v Panalpina World Transport NY Ltd (1996) 6 NWLR (Pt 456) 544, Glaloye v Balogun (1990) 5 NWLR (Pt 148), Union Bank of Nigeria Ltd v Ozigi (1994) 3 NWLR (Pt 333) 385.” Per OKORO, J.S.C ( P. 27, paras. B-D ). PER NIMPAR, J.C.A.

WHETHER OR NOT EVIDENCE NOT CONTROVERTED IS DEEMED ACCEPTED BY THE ADVERSE PARTY

It is trite that evidence which is not controverted and the witness not cross examined is accepted by the adverse party, see STATE V. HARUNA (2017) LPELR-43351 (CA) wherein the Court held thus:
“…. The witnesses’ evidence were neither challenged nor contradicted under cross-examination. It is settled law that evidence of the prosecution which is not contradicted or disputed by an accused is deemed to have been accepted or admitted by that accused person. See UBANI & 2 ORS V. THE STATE (2003) 12 SCNJ 111 at 130.
Per DANIEL-KALIO, J.C.A ( Pp. 12-13, paras. B-D). PER NIMPAR, J.C.A.

WHETHER OR NOT CLAIMING BOTH SPECIAL AND GENERAL DAMAGES VITIATES A SUIT

Therefore, claiming both special and general damages does not vitiate the suit or make it impossible to award damages that would put the Claimant in the position he should have been if the breach had not occurred, I said so in KEYSTONE BANK LTD V SHEMOMAL NIGERIA LTD (2016) 4 WRN 95 at 131. It is only what is proved that can be granted. Award of damages is generally within the purview of the trial Court and it is a discretion if well exercised cannot be interfered with by the Appellate Court, see ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY & ANOR V. EKWENEM (2009) LPELR-482 (SC) wherein the apex Court held thus:
“The award of damages is at the discretion of the trial Court. An appellate Court will not interfere with an award of damages by a trial Court surely because it is inclined to award a different amount. In order to justify reversing the decision of a trial Court on the question of the amount of damages, it will generally be necessary that the appellate Court be convinced either that:- a) The Court acted upon some wrong principle of law or under a mistake of law. b) The award is arbitrary or perverse. c) There has been an element of wrong exercise of discretion in the award. d) Injustice would result if the appeal Court does not interfere. e) The amount awarded by the Court is either ridiculously high or ridiculously low that it must have turned out to be wholly erroneous estimate of the damages. Ziks Press Ltd. V Ikoku (1951) 13 WACA 188 Bala V Bankole (1986) 3 NWLR pt. 27 pg. 141 Tsokwa V Motors (Nig.) Ltd. V Awoniyi (1999) NWLR pt. 587, pg. 423 Onwu V Nka (1996) NWLR pt. 458 pg. 1 Ijebu – Ode L.G V Adedeji Balogun Company Ltd. (1991) NWLR pt. 166 pg. 135. S.P.D.C (Nig.) Ltd. V Tiebo VII (1996) 4 NWLR pt. 445, pg. 657 Allied Bank v. Akubueze 1997 NWLR pt 509 pg. 374.” Per ADEKEYE, J.S.C (Pp. 25-26, para. A). PER NIMPAR, J.C.A.

WHETEHER OR NOT WHERE THERE IS A BREACH OF CONTRACT, THE AVAILABLE REMEDY IS IN DAMAGES

The law is settled that where there is a breach of contract, the available remedy is in damages, see NWAOLISAH V. NWABUFOH (2011) LPELR-2115 (SC) where the Court held thus:
“In the consideration of remedies for breach of contract, the options open to a party to a valid contract is an action for damages in breach of the contract. Ben-Nelson (Nig.) Ltd. V. Moro Local Government, Kwara State (2006) 8 NWLR pt. 1037, pg. 623.” Per ADEKEYE, J.S.C ( P. 39, paras. D-E ). PER NIMPAR, J.C.A.

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This Appeal is against the decision of the High Court Federal Capital Territory sitting in Abuja delivered by HON. JUSTICE M. KOLO on the 25th January, 2016 wherein the lower Court entered Judgment for the Respondent in respect of some of the Reliefs sought in the writ of summons issued by the Respondent against the Appellant for wrongful termination of a Licence Agreement (admitted as Exhibit D) executed between the parties. The Appellant dissatisfied with the judgment, filed a Notice of Appeal dated 22nd April, 2016 setting out grounds of Appeal as contained in its Notice of Appeal.

Facts leading to this appeal are amenable to brief summary. I shall do so shortly. The Respondent was granted a provisional offer as a licensee in respect of the Appellant’s service Station-Apo Village Service State, Abuja by virtue of a letter dated 6th May, 2004. Also the Appellant and the Respondent entered into a License Agreement dated 21st February, 2008 and this document contained the terms and conditions by which the relationship of the parties were governed. It was the termination of the

Respondent’s license by the Appellant that formed the basis of the Respondent’s suit before the lower Court. The Respondent (who was the Plaintiff at the lower Court), instituted the suit before the lower Court vide a Writ of Summons dated 20 May, 2013 and filed on same date, the Respondent claimed inter alia, the following reliefs:
1. A DECLARATION that the Defendant’s termination of Licence Agreement in respect of Apo Village Service Station by a letter Ref. FO/LG/LML/12/2012 dated 21st November, 2012 is malicious, wrongful and unlawful.
2. AN ORDER for immediate payment of the sum of N15,000,000.00 (Fifteen Million Naira) representing the amount paid with the Zenith Bank Plc, Eric Moore Branch cheque dated 12th January, 2004 by the Plaintiff to the Defendant as security/caution deposit with interest at average rate of 15% per annum with effect from 1st July, 2004 until actual payment.
3. AN ORDER to immediate payment of the sum of N320,100.00 (Three Hundred and Twenty Thousand One Hundred Naira) representing outstanding combined shortage of petroleum delivered to the Plaintiff at Apo Village Service Station between 1st January,

2012 and 25th September, 2012.
4. AN ORDER directing the Defendant to pay to the Plaintiff all sums of money due and payable to the Plaintiff in respect of expenses incurred by the Plaintiff on utilities and cost of finishing touches the Plaintiff incurred when Apo Village Service Station was reconstructed between 2006/2007.
5. N500,000,000.00 (Five Hundred Million Naira) special and general damages for malicious wrongful and unlawful termination of the Licence Agreement between the Defendant as the Licensee of Apo Village Service Station and the Plaintiff company”. See pages 10-11 of the Record.

The Appellant was dissatisfied with the decision thus this appeal.
The Appellant’s brief settled by GODWIN OMOAKA, SAN, dated 3rd August, 2016 and filed on the same day and deemed on 10th October, 2020 and formulated three issues for determination as follows:
1. Whether upon proper consideration of the facts and evidence adduced during trial, the lower Court was right when it held that the Appellant wrongfully terminated the License Agreement between the parties, i.e. Exhibit D and if not, whether such finding did not occasion a

miscarriage of justice? (The Wrongful Termination of License Issue). [Distilled from Ground 1].
2. Whether the lower Court was right when it held that as a result of the wrongful termination of the Licensee Agreement (Exhibit D), the Respondent is entitled to immediate refund of the security deposit of N15,000,000.00 (Fifteen Million Naira) by the Appellant. (The Refund of Security Deposit Issue) [Distilled from Ground 2].
3. Whether, on the state of the law, the lower Court was right to have awarded the sum of N50,000,000.00 (Fifty Million Naira) as general damages against the Appellant? (The General Damages Issue) [Distilled from Ground 3].

The Respondent’s Brief was settled by J. A. AWOLADE, ESQ., dated 2nd May, 2019 and filed same day and deemed on the 10th October, 2020. He adopted the issues for determination formulated by the Appellant as follows:
1. Whether upon proper consideration of the facts and evidence adduced during trial, the trial Court was right when it held that the Appellant wrongfully terminated the Licensee Agreement (Exhibit D) between the parties to this suit. Ground 1 of the Notice of Appeal.

Whether the trial Court was right when the Court held that the Respondent is entitled to immediate refund of the sum of N15,000,000.00 (Fifteen Million Naira) paid by the Respondent to the Appellant as security/caution deposit. Ground 2 of the Notice of Appeal.
3. Whether, on the state of the law, the trial Court was right to have awarded the sum of N50,000,000.00 (Fifty Million Naira) as damages against the Appellant. Ground 3 of the Notice of Appeal.

Thereafter, the Appellant filed a Reply brief dated 12th day of November, 2019 and filed on the same day and deemed on 10th October, 2020.

APPELLANTS’ ARGUMENT
ISSUE 1
The Appellant argued that in coming to the conclusion that the License Agreement between the parties (i.e. Exhibit D) was wrongfully terminated by the Appellant, the lower Court wrongly construed the provisions of Clause 5 of Exhibit D, particularly, Clause 5 (i) and (j) and thereby was in grave error which undoubtedly occasioned a grave miscarriage of justice. The Appellant submits that its offer to the Respondent to invest the sum of N100,000,000.00 (One Hundred Million Naira) in the Station was not out of place, neither

was it arbitrary as the Appellant was well within its right to do so and no evidence exists on the contrary from the records. Rather, there is clear evidence on record, vide Exhibit A15 (see pages 57 and 108 of the Record respectively), that the Respondent indicated his willingness in principle to pay this sum. In fact, the Respondent, under cross-examination alleged (albeit falsely) that it was the Appellant who stopped him from paying the said sum. (See page 182 of the Record). The Appellant also submits that Clause 5 of Exhibit D which generally deals with withdrawal of the Respondent’s license to the Station, gives the Appellant the exclusive right to withdraw the said license upon the occurrence of any of the conditions stipulated therein. Of note my Lords, is Clause 5 (i) and (j) which for good measure and ease of reference is reproduced below as follows:
Clause 5 (i) “If the Licensee does any act likely to bring disrepute to the Licensor or any of its products or if he commits any act of Dishonesty or fraud”
(j) “If the Licensee fails to meet the required standard of housekeeping of the station”

The Appellant argued also that there was undisputed evidence borne out of the records that the Respondent did not comply with the offer to invest the sum of N100,000,000 made by the Appellant to him. Specifically, at the lower Court, the Respondent unequivocally admitted under cross-examination as follows: “I was asked to pay N100,000,000 for the rebranding and upgrading of the Filing Station. That is by Exhibit A14. I did not pay the N100,000,000 due to their own stoppage…”.[Emphasis added]. Following from this failure by the Respondent, the Appellant was therefore correct to have considered same a violation of Clause 5 (i) and (j) of Exhibit D as such failure by the Respondent not only could bring disrepute to the Appellant but also confirms that the Respondent has equally failed to meet the standard required of the Station. Accordingly, the Appellant was right to have withdrawn the Respondent’s license vide its letter of termination dated 21 November, 2012, i.e. Exhibit ‘A’ 19 (See pages 67 and 180 of the Record). Accordingly, the Appellant submitted that the lower Court was apparently in error when it held that the termination of the license by the Appellant on the

ground of the Respondent’s failure to comply with Exhibit A14 was extraneous to Exhibit D and as such wrongful. Also, submitted that the error of the lower Court was borne out of its failure to distinguish between the termination provisions under Clause 5 as opposed to the termination provisions under Clause 10 of Exhibit D. The Appellant reproduced the Judgment of the lower Court contained in pages 240-241 of the Record. The Appellant states that it is obvious that lower Court misconstrued the purport and effect of Clauses 5 and 10 respectively of Exhibit D in arriving at its findings.

The Appellant argued further that it has the right to make the investment demands on the Respondent within the ambits of its commercial policy as it did in Exhibit A14 and it was never in dispute that the Appellant was entitled to do so. This position is further strengthened by the express stipulation of Clause 11 of Exhibit D which gives the Appellant the right to review its provisions as circumstances demand. For the avoidance of doubts, Clause 11 unequivocally provides that “The Licensor may review this agreement in whole or part as the circumstances may require”.

Thus, the Appellant submitted that it was well within its rights when it demanded the Respondent to make additional investment of N100,000,000 further to Exhibit A14. Consistent with the Appellant’s unilateral power to review the broad terms of the contract, the Appellant may also unilaterally review the events of withdrawal stipulated in Clause 5 by either introducing new conditions or amending the scope of existing conditions – as the Appellant did in this case by making the non-payment of the N100 million a condition for withdrawal of the Appellant’s license. This point is further underscored by the fact that Exhibit D does not prescribe a mode or format for its review. That is to say, the review may be contained in Exhibit D itself or in some other document, in this case, Exhibit A14 made pursuant to Exhibit D. The Appellant submits that the Respondent can therefore have no quarrel with the Appellant’s exercise of its contractual powers to review Exhibit D which to contend otherwise will amount to a breach of the unambiguous and express terms of Exhibit D. The Appellant also submits that the Respondent have admitted and accepted this fact particularly

Exhibit A15 which was tendered by the Respondent. The Appellant reproduced the contain of Exhibit A15 which is at page 61 of the Record to show that the Respondent by his own showing, accepted the consequence of such noncompliance and had resigned to fate.

The Appellant also argued that if the learned trial Judge had adverted his mind to these facts, he would obviously had come to a right finding that the Appellant had the right to make the demand for additional investment under the license and consequently would not have arrived at the erroneous conclusion that, the Exhibit A14 was extraneous to Exhibit D and also the learned trial Judge opined that the Appellant was duty bound to give the Respondent a mandatory 30 days’ notice further to Clause 10 of Exhibit D by this finding, it was obvious that the lower Court did not consider the different regimes for the termination of the License under Exhibit D as well as their respective implications. Further, there are two modes by which the Respondent’s License could be terminated as stated in Clause 5 (a)-(L) and Clause 10. From the termination provisions of Clauses 5 and 10 the following are the

remarkable differences:
i. While the right to terminate (withdraw) the License exclusively applies to the Appellant alone under Clause 5, Clause 10 applies to both parties alike and gives either party the right to terminate the license;
ii. Termination of the License under Clause 5 takes effect forthwith or with immediate effect upon the service of the letter of termination on the Respondent, by Clause 10, termination takes effect upon the expiration of the thirty days’ notice period;
iii. The Appellant’s right to terminate the License under Clause 5 is automatic, upon the happening of any of the termination events provided for in 5(a)-(L) and as such would not require a thirty days’ notice period envisaged by Clause 10.

The Appellant further argued that the terminated the License based on the failure of the Respondent to invest the sum of N100,000,000.00 requested by the Appellant, thus, on this basis, the Appellant was entitled to terminate the License by virtue of Clause 5 (i) and (j) respectively, of Exhibit D and did not need to comply with Clause 10 by issuing a thirty days’ notice which makes the lower Court manifestly in error

when it held that the termination by the Appellant was wrongful because it fell short of the thirty days’ notice period prescribed by Clause 10. The lower Court truly confused the application and effect of both clauses in coming to its decision. The Appellant urged this Honourable to adopt its arguments as constituting a proper interpretation and application of the provisions of Clauses 5 and 10 respectively of Exhibit D. The Appellant submits that the provisions are clear and unambiguous and should be accorded their ordinary meaning as held in the case of IHUNWO v. IHUNWO (2013) 8 NWLR (PT. 1357) 550 at 5831; UNITY BANK PLC v. OLATUNJI (2015) 5 NWLR (PT. 1452) 203 at 247; NIKA FISHING CO. LTD. V. LAVINA CORPORATION (2008) 16 NWLR (PT. 114) 509 AT 543; A. I. INVEST. LTD. v. AFRIBANK (NIG.) PLC (2013) 9 NWLR (PT. 1359) 380; OGBUNYINYA v. OKUDO (1979) 6-9 SC 32; A.G. BENDEL v. AIDEYAN (1989) 4 NWLR (PT. 118) 646; AKPAN v. STATE (1986) 3 NWLR (PT. 27) 225; NECO v. TOKODE (2011) 5 NWLR (PT.1239) 45 at 69; SCHRODER V. MAJOR & CO. (NIG.) LTD (1989) 2 NWLR (Pt. 101) 1 at 21.

Furthermore, the Appellant reproduced the holding of the lower Court at pages 238 and 241 to state that the Appellant was denied the benefit of Clause 5 of the Agreement between the parties and as such, failed in the duty placed on it and the Courts generally to uphold the sanctity of contracts freely entered into by the parties. Cited the case of MR. SEGUN BABATUNDE & ANOR V. BANK OF NORTH LTD. & ORS. (2011) 18 NWLR (pt. 1279) 738; OWONIBOYS TECHNICAL SERVICES LTD. V. U.B.N. LTD. (2003) 15 NWLR (PT.844) 545; S.E. CO. LTD. V. N.B.C.i (2006) 7 NWLR (PT. 978) 201; AMADI V. THOMAS APLIN & CO. LTD. (1972) 4 SC 228; ODUYE V. NIGERIA AIRWAYS LTD. (1987) 2 NWLR (PT. 55) 126; IROLO v. UKA (2002) 14 NWLR (pt. 786) 195.

Finally, the Appellant misinterpreted Clause 10 in reaching the conclusion that the Appellant wrongly terminated Exhibit D, and erroneously discarded Clause 5, in coming to its conclusion. The Appellant urge this Honourable Court to resolve this issue in favour of the Appellant and upholding the Appeal on this score.

ISSUE 2
The Appellant reproduced the holding of the lower Court at pages 246-247 of the Record which according to the Appellant was influenced by its decision that Exhibit D was wrongfully

terminated by the Appellant. The Appellant submits that to reveal the error in the lower Court’s decision above, the Appellant reproduced Clause 2(vi) and (x) of Exhibit D and stated that the word “shall” in both provisions of Clause 2 (vi) and (x) means that the adoption of the above procedure for the refund of security/caution deposit to the Respondent is mandatory and admits of no liberality. Cited the case of IFEZUE v. MBADUGHA (1984) 1 SCNLR 427; ADAMS v. UMAR (2009) 5 NWLR (PT. 1133) 41. Also, the Appellant submit with above stated facts the relevant question to be asked at this point is this: was there evidence on record to show that this procedure was adopted by the parties so as to justify the decision of the court that the Respondent was entitled to the immediate refund of the security deposit by the Appellant? Which the answer is an absolute NO because there was a joint inspection/handing over of the Station by the Respondent to the Appellant through its representative on 19/12/12 per Exhibit A20, there is undisputed evidence that no reconciliation of accounts was done by the parties as agreed under clause 2 (vi) and (x) of Exhibit D (See page 180

of the Record). The Appellant reproduced the testimony of Respondent at page 182 of the Record and the holding of the lower Court at pages 245-246 of the Record.

The Appellant contends that from the holding of the lower Court, it is clear that there is no evidence that any such reconciliation of accounts was undertaken by the parties, the basis for the refund of the security deposit to the Respondent. Accordingly, in the absence of such evidence, the lower Court was terribly in error when it held that the Respondent was entitled to the immediate refund of the security deposit of N15,000,000.00. The Appellant submits that the lower Court was apparently, misguided by two factors namely, first, it mistakenly took the evidence of stock taking undertaken by the parties as evidence of account reconciliation. Continuing, the Appellant states that the holding of the lower Court cannot be supported in the face of the clear and unambiguous provision of Clause 2(vi) of Exhibit D which requires account reconciliation by both parties before a refund of security deposit is made. The law is trite that where parties have freely elected or chosen the terms that will

govern them under their contract, a Court is duty bound to give effect to the terms agreed by the parties. Referred to the case of NIKA FISHING CO. LTD. V. LAVINA CORPORATION (2008) 16 NWLR (PT. 114) 509 AT 543; AFROTEC V. M.I.A. (2001) 6 W.R.N. 65 AT 112; BOOKSHOP HOUSE LTD. V. STANLEY CONSULTANT LTD. (1986) N.W.L.R. (PT. 26) 87 AT 97; AMADI V. THOMAS APLIN & CO. LTD. (1972) 4 SC 228; ODUYE V. NIGERIA AIRWAYS LTD. (1987) 2 NWLR (PT. 55) 126.

Furthermore, the Appellant states that the lower Court’s error stemmed from the fact that it wrongly relied on the evidence of the Respondent at page 182 of the Record that he made a demand for the reconciliation after the License was terminated which makes this approach by the lower Court is legally indefensible because this piece was never pleaded by the Respondent and is at variance with pleadings such should be disregarded, discountenanced and expunged by the Court. Cites the case of ADELEKE v IYANDA (2001) 13 NWLR (PT. 729) 1 at 21; ADEMESO v. OKORO (2005) 14 NWLR (PT. 945) 308 at 318 and MBANI v. BOSI (2006) 11 NWLR (Pt. 991) 400 at 412. Finally, the Appellant submits that based on the arguments canvassed

the lower Court erred when it held that the Respondent was entitled to an immediate refund of the security deposit in absence of any evidence that the parties reconciled accounts in keeping with Clause 2 (vi) of Exhibit D which the accounts reconciliation is an indispensable precondition to the refund of the N15,000,000 caution deposit, since this important condition precedent was not fulfilled, there is no basis for the trial Court to make the order of refund. The Appellant urge this Honourable Court to resolve this issue in favour of the Appellant.

ISSUE 3
The Appellant reproduced the claim of the Claimant in set out at paragraph 33(5) of his Statement of Claim (See page 11 of the Record) and the holding of the lower Court held at page 254 of the Record. The Appellant submits that the simple question to resolve at this point is whether the lower Court was right in awarding general damages to the Respondent after it found that the Respondent is not entitled to special damages and more so, given that the Respondent lumped both the relief of special and general damages together? The Appellant states that the law is settled beyond arguments that in an

action for breach of contract, a party cannot claim both special and general damages together for the simple reason that such claim would amount to double jeopardy against the other party if same were to be granted. The Appellant referred to G. CHITEX IND. LTD v. O.B.I. (NIG.) LTD (2005) NWLR (PT. 945) 392; EMIRATES AIRLINE v. NGONADI (2013) LPELR-22053 (CA); AGBAJE v. NATIONAL MOTORS (1971) 1 UILR 119; FEDERAL COLLEGE OF EDUCATION v. ANYANWU (1997) 4 NWLR (PT. 501) 533 AT 561; YA’U v. DIKWA (2001) 8 NWLR (PT.714) 127 EMIRATES AIRLINE v. NGONADI (supra); GAMBORUNMA V. BORNO (1997) 3 NWLR (PT. 495) 530; SOETAN V. OGUNWO (1975) 6 SC 67; UMAN V. OWOEYE (2003) 9 NWLR (PT. 825) PG. 221; F. B. N. V. IGUMBOR (2000) 6 NWLR (PT. 662) 637; MAIDEN ELECTRONICS V. A-G. FED. (1974) 1 ALL NLR 179; IJEBU – ODE LOCAL GOVERNMENT V. ADEDEJI BALOGUN & CO. LTD. (1991) 1 NWLR (PT. 166) 136; MAIDEN ELECTRONICS V.A-G., FEDERATION (1974) 1 SC 53; PRODUCE MARKETING BOARD V. ADEWUNMI (1972) 1 ALL NLR (PT.2) 433 AT 438; SWISS-NIGERIAN WOOD INDUSTRIES LTD. V. BOGO S.C (1972) 1 ALL N.L.R (PT. 11) 433; ODULAJA V. HADAD (1973) 11 SC 357 AT 316; OMONUWA V. WAHABI (1976) 4 SC 37 AT 47-48; G.K.F. INVESTMENT NIGERIA LTD .v. NITEL PLC (2009) LPELR-1294 (SC).

The Appellant argued that from the inexhaustible list of decided authorities above, the learned trial Judge ought not to have awarded damages in the sum of N50,000,000 in favor of the Respondent having held that the Respondent was not entitle to special damages, having failed to prove same (See pages 247 -252 of the Record). Also, the Appellant states that having held that the Respondent is not entitled to special damages, it was a wrong application of the law to have proceeded to award general damages to the Respondent. Relied on WEST AFRICAN SHIPPING AGENCY & ANOR v. KALLA (1978) 11 N.S.C.C 114 at 118 lines 20- 25. Again, the Appellant states that by awarding the sum of N15,000,000.00 (Fifteen Million Naira) as refund of security deposit to the Respondent, the lower Court restored the Appellant to the position he was before the alleged breach of contract. Accordingly, it was a wrong and improper exercise of discretion for the lower Court to have proceeded to award general damages in favour of the Appellant which obviously amounted to double compensation especially having

regard to the fact that no evidence was made out by the Respondent in that regard. Relied on MULTICHOICE (NIG.) LTD V. AZEEZ (2010) 15 NWLR (PT. 1215) 40 at 52-53, PARAS. G-A and E-F and GE INTERNATIONAL OPERATIONS (NIG.) LTD v. Q OIL & GAS SERVICES LTD (2016) 10 NWLR (pt. 1520) 304 and ATIVIE V. KABELMETAL NIG. LTD (2008) 10 NWLR (PT. 1095) 399 AT 420.

In conclusion, the Appellant states that the lower Court was obviously in error when it awarded the sum of N50,000,000 (Fifty Million Naira) as general damages to the Respondent and the Appellant urge this Court to resolve this issue in favour of the Appellant.

RESPONDENT’S SUBMISSION
ISSUE ONE
The Respondent argued that the first issue raised by the Appellant centered on whether it was proper for the learned trial Judge to hold that the Appellant wrongfully terminated the Licensee Agreement (Exhibit D) between the parties to this suit? What should be the proper interpretation of Clause 5(i) and (j) and Clause 10 of Exhibit D? Is it possible by any stretch of imagination to hold that the Appellant is entitle to withdraw the Respondent’s Licensee Agreement (Exhibit D) by virtue of

the provision of Clause 5(i) and (j) of the agreement on the basis of non-payment of N100,000,000.00 (One Hundred Million Naira) demanded by Exhibit A14 at page 56 of the record of appeal? the Respondent reproduced the two provisions of Exhibit D and states that there is no nexus whatsoever between Exhibit A14 and Exhibit D. Exhibit A14 merely refers to “previous communication with regards to the restructuring our business operations.” Exhibit A14 dated September 18, 2012 did not make any reference to Exhibit D that has been in existence between the parties since the 21st day of February, 2008. Also, the Respondent states also that the Appellant’s learned counsel argued strenuously that the Respondent inability to invest the sum of N100,000,000.00 (One Hundred Million Naira) for Appellant’s “retail outfit upgrade and re-branding exercise” is within Clause 5(i) and (j) of Exhibit D and can be used to withdraw the Respondent’s Licensee Agreement with immediate effect. The Respondent reproduced the question raised the trial Judge in his judgment at page 238 of the record and also at page 241 of the record the trial Court relied on unchallenged and uncontroverted

evidence at paragraph 8 of the Plaintiff’s reply to the Defendant’s amended statement of defence and paragraph 9 of the plaintiff’s additional written statement on oath at pages 110 and 113 respectively of the record of appeal to arrive at the irresistible conclusion that “there has been a breach of the Licensee Agreement dated 21st day of February, 2008 (Exhibit D) by the defendant and the remedy available in consequence of that breach is damages.” (See pages 241 to 242 of the record of appeal).

The Respondent argued also that he was quoted out of context when the Appellant states that “the Respondent have agreed that he “did not pay the N100,000,000.00 due to their own stoppage. “See pages 182 to 183 of the record of appeal where the Respondent made reference to the issue of N100,000,000.00. The Respondent submits that the argument of the Appellant are absolutely misconceived because the learned trial Judge acted on the uncontroverted and unchallenged evidence to arrive at the conclusion that the Appellant acted in breach of the Licensee Agreement tendered as Exhibit D. In its first Statement of Defence dated the 14th day of March, 2014

which was subsequently amended pursuant to the ruling at pages 188 to 199 of the record of appeal, the Appellant failed to disclose why the Licensee Agreement was terminated. The Respondent also submits that Exhibit D was introduced by the Appellant after the Respondent has closed his case. Inevitably and in the overall interest of justice the Plaintiff was allowed to re-open his case and he testified further through his additional written Statement on Oath at pages 112 to 114 of the record of appeal. The additional written Statement on Oath was adopted on the 4th day of March, 2015 (see page 201 of the Record of Appeal). Noteworthy is the fact that the Appellant’s counsel did not cross examine the Respondent on his additional evidence (see page 201 of the Record of Appeal).

The Respondent argued further that what is the effect of uncontroverted and unchallenged evidence? At page 241 of the record of appeal, the learned trial Judge relied on the Supreme Court decision in HILARY FARMS LTD. VS. M/V “MAHTRA” (2007) 4 NWLR (PART 1054) 201. The Respondent pleaded and gave evidence before the trial Court that Exhibit A14 was extraneous to Exhibit D, the

Appellant’s Counsel who failed to cross examine the Respondent on this issue cannot, at this stage, maintain the argument that the Appellant has the right to terminate the Respondent’s Licensee Agreement under Clause 5 of Exhibit D. According to the Respondent, what is the relationship between the Respondent’s failure (if any) to raise the sum of N100,000,000.00 (One Hundred Million Naira) demanded for upgrade and re-branding exercise and the provision of Clause 5(i) and (j) in Exhibit D? In what ways does this act “bring disrepute to the Licensor” or ‘fails to meet the required standard of housekeeping of the station”?

The Respondent submits that the Appellant cannot hang its decision to terminate the Respondent’s Licensee Agreement on this contentious provision of Clause 5(i) and (j) of Exhibit D. The Respondent reproduced the holding of the learned trial Judge at pages 240 to 241 of the record of appeal.

Finally, the Respondent urge this Honourable Court to hold that the Appellant wrongfully terminated the Licensee Agreement (Exhibit D) between the parties herein and resolve issue 1 in favour of the Respondent.

ISSUE TWO
The Respondent reproduced one of the relief sought at the lower Court at page 10 of the record of appeal. The Respondent argued that the payment of N15,000,000.00 (Fifteen Million Naira) was well documented, see Exhibit A2, A3 and O the Licensee Agreement dated the 21st day of February, 2008 at pages 95 to 103 of the record of appeal. The Respondent also reproduced the relief sought by the Appellant at the lower Court at pages 89 to 94 of the records of appeal. The Respondent reproduced the reaction of the trial Court to the argument (see at page 246 of the record of appeal). It is on record that the Appellant’s Counsel did not cross examine the Respondent on this point when the Respondent was re-called. Consequently, it is impossible to fault the order of the learned trial Judge that the Plaintiff is entitled to immediate refund of the sum of N15,000,000.00 (Fifteen Million Naira) paid to the Defendant/Appellant in trust as Security/Caution deposit. The Respondent submits that letter of termination (Exhibit A18) practically brought the relationship between the parties to this suit to an abrupt end on a sour note. The Appellant refused to pay the sum of N15,000,000.00

(Fifteen Million Naira) “kept in trust” with the Appellant when there was business relationship between the parties to this appeal. With regard to the deliberate refusal of the Appellant to re-pay the Security Deposit several years after the wrongful termination of the Respondent’s Licensee Agreement as a continuation of the fact pleaded in paragraph 22 at page 9 of the record of appeal. The Respondent urge this Court to order immediate payment of the sum of N15,000,000.00 (Fifteen Million Naira) as claimed to the Respondent without further delay in the interest of justice and resolve issue 2 in favour of the Respondent.

ISSUE THREE
The Respondent argued that the issue is about the propriety of the award N50,000,000.00 (Fifty Million Naira) as damages by the learned trial Judge against the Appellant. The Respondent states that the Appellant’s counsel submitted that the learned trial Judge ought not to have awarded damages in the sum of N50,000,000.00 (Fifty Million Naira) in favour of the Respondent and predicated his objection to the award of N50,000,000.00 (Fifty Million Naira) damages on the fact that the Respondent “lumped both the relief of

special and general damages together” in his fifth claim; and the learned trial Judge “found that the Respondent is not entitled to special damages.” The Respondent reproduced paragraph 6.12 page 19 of the Appellant’s Brief of Argument, and states that the learned counsel wrongly regarded the award of N15,000,000.00 (Fifteen Million Naira) as special damage to make false allegation of double compensation against the learned trial Judge. The Respondent referred to the case of KEYSTONE BANK LTD. V SHEMOMAL NIGERIA LTD (2016) 4 WRN 95 AT 131 and AGU V. GENERAL OIL LTD (SUPRA). The Respondent reproduced paragraph 33(5) at page 11 of the Record of Appeal and by simple arithmetic the sum claimed as general damages was N187,187,516.16 (See pages 252 to 254 of the Record of Appeal), where the learned trial Judge made remarked. The position taken by the learned trial Judge is supported by the decision in OWENA MASS TRANSPORTATION CO. LTD. V. KEHINDE IMAFIDON (2012) 4 NWLR (PART 1290) 332 AT PP 349-350; OWENA MASS TRANSPORTATION CO. LTD V. KEHINDEIMAFIDON (SUPRA) and SPDC NIG. LTD V. CHIEF G.B.A. TIEBO {2005} 9 NWLR (PART 931) 439 to submit that where special damages

failed, the Plaintiff’s case crumbles and the Court cannot compensate the Plaintiff by award of general damages. However, the Court should avoid double compensation to a victim of same wrong, cited the case of U.B.N. V. EMOLE (2001) 18 NWLR (PART 745) 501 and HYACINTH NZERIBE V. DAVE ENGINEERING CO. LTD (1994) 8 NWLR (PART 360) 124 AT PP 147-148.

The Respondent argued also that it is mischievous for Appellant’s Counsel to regard the order for immediate payment/refund of the sum of N15,000,000.00 (Fifteen Million Naira) as an “award.” It is neither an award nor compensation. The sum of N15,000,000.00 (Fifteen Million Naira) actually belongs to the Respondent. It was the money “kept in trust” by the Appellant against Respondent’s usage of the petrol filling station in issue, that is, Apo Village Service Station which has since been surrendered to the Appellant since the 19th day of December, 2012. Under normal condition, the money ought to have been refunded to the Respondent without much ado on the same day the Respondent surrendered the station. The refund of N15,000,000.00 (Fifteen Million Naira) has nothing to do with penalty for wrongful

termination of Exhibit D the Licensee Agreement. The Respondent cited the Supreme Court case of CHIEF VICTOR NDOMA-EGBA V. A.CB. PLC (2005) 7 S.C. (PART 11/) 27; UNION BANK OF NIGERIA PLC. V. ALHAJI ADAMS AJABULE & ANOR (2012) 7 WRN 1 AT 32 and UNION BANK OF NIGERIA PLC. V. ODUSOTE BOOKSTORES LIMITED (1995) 9 NWLR (PART 421) 558 AT 586, YESUFU ADEWUYI V. ABIBADE & ORS. (1976) 4 WACA 169; SOLANKE V. AJIBOLA {1969} 1 NMLR 253; HIS HIGHNESS OYOJ V. FELIX EGWARE 13 WACA 188. The Respondent states that the appeal Court is entitled to interfere with an award of damages made by trial Judge, where the circumstances calling for such intervention are shown to the Appellate Court. The Appellant merely predicated its objection on the fact that the Respondent is not entitled to the award of N50,000,000.00 (Fifty Million Naira) simpliciter. Cited the case of UNIVERSAL VULCANIZING (NIG.) LTD VS. IJESHA UNITED TRADING & TRANSPORT CO. LTD & 6 ORS (1992) 9 NWLR (PART 266) 388 AT 412; HADLEY V. BAXENDALE (1854) 9 EX 341; (SEE ALSO KOUFOS V. C. CZARNIKOW LTD. (THE HERON II) (1969} 1 A.C. 350 H.L.; COTTRILL V. S. & L. BUILDING SOCIETY {1960} 1 WLR 753}. The

Respondent states that he voluntarily retired as a Civil Servant after about 24 (twenty four) years of meritorious service. He invested all his savings plus retirement benefits to secure operating license to run AP Apo Village Service Station, Abuja. He devoted all his energies and resources to the running of the station that earned him the prestigious “Best Licensee Award” throughout Nigeria in the year 2009. With the change of African Petroleum Plc management at the topmost level and change of name to Forte Oil Plc, the Respondent’s Licensee Agreement was terminated unceremoniously. The Respondent was maliciously denied refund of the sum of N15,000,000.00 (Fifteen Million Naira) kept in trust for the usage of the filling station and remained frustrated and unemployed since the … day of December, 2012. What then is the attitude of Appellate Court to award of damages by a lower Court? The Respondent relied on GUARDIAN NEWSPAPERS LTD V. AJEH (2011) 10 NWLR (PART 1256) 574 AT 603. The Respondent states that it is incongruous to argue that the award of N50,000,000.00 (Fifty Million Naira) as damages by the learned trial Judge is not meritorious.

THE APPELLANT’S REPLY BRIEF
ISSUE ONE
The Appellant contend that the Respondent made so many contentions to justify the trial Judge’s remaking of the Respondent’s case that the Appellant acted in breach of the License Agreement tendered and that the termination of Exhibit D by the Appellant was wrongful. According to the Appellant, the Respondent has argued that the letter of demand for upgrade investment to the tune of N100,000,000.00 (“EXHIBIT A14”) made no reference to the license agreement (“EXHIBIT D”) and consequently contended that, the Appellant’s interpretation of Clauses 5(i) and (j) of Exhibit D were overly stretched, but the letter of demand for upgrade need not make reference to the foundational contract, that is Exhibit D, to be valid, so far as the demand made therein is within the contemplation of Exhibit D freely and willingly agreed to by the parties. Also, the Appellants contend that written agreements entered by parties must be construed and interpreted in consonance with the intent of the parties. This is especially so, as parties in the instant appeal had a consensus ad idem the meeting of minds between them at the time

when Exhibit D was executed. From logical inference of clauses 5(i) and (j) and 11 of the License Agreement (at page 23 of the Records of Appeal), it is submitted that the letter of demand (Exhibit 14) need not make reference to Exhibit O. On this point, we rely on the Supreme Court decision in KALANGO V. THE GOVERNOR OF BAYELSA STATE OF NIGERIA & ORS. (2009) LPELR- 1649(SC). The Appellant submit that failure to reference Exhibit D in Exhibit A14 will not invalidate Exhibit A14 or take it out of the context of Exhibit D which will redraft or remake the agreement between the parties, which both the parties and the Court are bound by law to obey and give effect to. The Appellant states that the Respondent argued that the finding of the trial Judge that the termination of the License Agreement between the parties was wrongful (subject of this appeal) was predicated on the uncontroverted and unchallenged evidence that the demand for the N100,000,000 (One Hundred Million Naira) investment for retail outlet upgrade and rebranding exercise is not part of the License Agreement executed between the parties. The Respondent then went on to quote from the part of the

decision where the learned trial Judge leveraged on uncontroverted evidence of the Respondent in arriving at the finding that the License Agreement was wrongfully terminated. With due respect to the Respondent and the learned trial Judge, it is submitted that the strenuous arguments and finding on this issue are dearly misplaced, having regard to the whole evidence proffered at the trial Court. Contrary to what the Respondent has said in his Brief and the finding of the trial Court, the additional evidence of the Respondent (i.e. the additional witness statement on oath of PW1 at the trial proceedings at page 113 of the Record of Appeal) was controverted by other piece of evidence that were before the trial Court.

The Appellant also argued that on the basis of arguments already canvassed by the Appellant, it is submitted that clauses 5 and 11 of Exhibit D controverted or challenged the additional evidence of the Respondent, and as such no cross-examination was necessary in that respect. It is further submitted that had the trial Judge properly evaluated the contents of Exhibit D, particularly clauses 5 against clause 10 that he placed reliance on, he

would have made a different finding. The Appellant further submits that the additional evidence of the Respondent cannot alter or take the place of the License Agreement of the parties, and accordingly, the trial Court ought to uphold the sanctity of contracts freely entered into by the parties. Cited the case of GABRIEL OLATUNDE V. OBAFEMI AWOLOWO UNIVERSITY & ANOR (1998) LPELR-2575(SC). The Appellant states that assuming without conceding that the additional evidence of the Respondent was uncontroverted and unchallenged, the Court ought to have indeed, is obligated to have properly evaluated the credibility of such evidence before relying on it. The duty of the Court to accept and act on such evidence is subjective, i.e. depends on proper evaluation of the evidence before it with a view to determining the credibility of such evidence, by checking whether there is any other evidence that disproves it. The Appellant relied on IJEBU-ODE L. G. V, ADEDEJI (1991) 1 NWLR (PT.166) 136 and EZEANI v. FRN (2019) LPELR-46800 (SC); EMMANUEL V. OIGBOCHE (2018) LPELR – 46799 (CA). The Appellant also states that if the learned trial Judge had thoroughly considered the

evidence of both parties, particularly Exhibit A14 together with Exhibit D, his consequential finding on the additional evidence of the Respondent would not have been that it is uncontroverted and unchallenged, leading to the wrong appreciation of law on the subject by the Respondent in his brief. Cited MADU V. MADU (2008) 6 NWLR (PART 1083) P. 296 AT 324. It is also trite that, where there is oral evidence as well as documentary evidence, the documentary evidence should be used as a hanger for which to assess the oral testimony. See the cases of KIMDEY V. MILITARY GOV. OF GONGOLA STATE (1988) 2 NWLR (PT. 77) P. 445; HAWAD INTERNATIONAL SCHOOLS LTD V. MINA PROJECT VENTURES LTD (2003) 39 WRN 57 AT 69 AND SUBMIT FINANCE COMPANY LTD V. HON. SABA & SONS (2003) 48 WRN 81 AT 105.

The Appellant further argued that the oral evidence of the Respondent based on paragraph 9 of his additional witness statement on oath (at page 113 of the Records), is inconsistent with the provisions of Clauses 5 (i) and (j) and 11 of the License Agreement (Exhibit D at page 23 of the Records), and therefore, the learned trial Judge ought to have used Exhibit D to evaluate the

credibility of the Respondent’s oral testimony. If the trial Judge had done so, he would have arrived at the right decision that the termination of the License Agreement by the Appellant was lawful. It is settled principle of law that more weight and value are to be accorded to documentary evidence than oral testimony, as oral testimony could be deceptive and misleading but documentary evidence cannot. Cited UDEORA V. NWAKONOBI (2003) 4 NWLR (PT. 811) P. 643 AT 674H – 655. The Appellant submits that the submissions of the Respondent and the findings of the trial Judge on this issue, are thoroughly misconceived and legally unsustainable.

ISSUE TWO
The Appellant contends that the Respondent argued that the well documented shortages on petroleum product deliveries fulfils the condition precedent for the refund of security/caution deposit stipulated in Clause 2 (vi) and (x) of Exhibit D. The Appellant state that the claim by the Plaintiff to a refund of the Security deposit of N15,000,000.00 (Fifteen Million Naira) can only be so made after a proper reconciliation of the Plaintiff’s account with the Defendant and same is applicable also to the

Plaintiff’s claim for shortages of petroleum products. It is obvious that the Respondent has misconstrued the Appellant’s averment quoted above to mean that in claiming a refund of the Security deposit of N15,000,0000.00 there must be either reconciliation of the Respondent’s account or alternatively, a well-documented shortage on petroleum product deliveries. This is completely wrong as there is no alternative way of fulfilling the condition precedent for the refund of the security/caution deposit under clause 2 of Exhibit D. More so, the averment of the Appellant above can only be construed to mean that reconciliation of the Respondent’s account will also apply where the Respondent is claiming for shortages of petroleum products. The Appellant submit that the additional evidence of the Respondent in this respect cannot alter or take the place of the clear provisions of clause 2 (vi) and (x) of Exhibit O as the law is settled that parties are bound by terms of their contract and the Court is duty bound to give effect to the clear provisions of the contract. This principle is well known and do not require us to cite any authority. Relied on

OFORISHE V. NIGERIAN GAS CO. LTD (2017) LPELR-42766 (SC). The Appellant states that the strenuous arguments of the Respondent to the effect that the trial Court rightly ordered a refund of the security/caution fee to him is legally indefensible.

ISSUE THREE
The Appellant argued that the Respondent alleged that the sum of N50,000,000.00 awarded by the trial Judge is a consequence of, and is hinged on the supposed breach of Exhibit D by the Appellant, and that the award of N50,000,000.00 as general damages is appropriate in the circumstance. The questions which consequently beg to be answered are: (a) whether indeed the alleged damages suffered is a direct consequence of the supposed breach of Exhibit D, and if yes, (b) whether the award of the whopping sum of N50,000,000.00 as damages by the learned trial Judge is legally founded and not outrageous? On the first question other than the mere assertions made by the Respondent in his pleadings before the trial Court that he lost benefit of the License Agreement and lost benefit he would otherwise have made, and the he has been greatly injured in the said business venture and has been put to considerable trouble,

inconvenience and expense and has thereby suffered loss and damage, no credible evidence was proffered by the Respondent in proof of these assertions. It is therefore shocking and surprising that the trial Judge would speculate specific losses and injuries not asserted by the Respondent in his pleading, and upon that, proceeded in a very sentimental manner to award general damages in favour of the Respondent. The Appellant submit that speculation or sentiment has no place in our Courts, cited EJEZIE V. ANUWU (2008) 12 NWLR (PT.1101) 466; OGBIRI & ANOR. V. NIGERIA AGIP OIL COMPANY LTD. (2010) LPELR- 4686 (CA); PETETSON ZOCHONIS & CO. LTD. V. OGEDENGBE (1972)3 SC.94 @ 98-99; HEDLEY V. BAXENDALE [1854] 9 EX 341; GABRIEL ATIVIE V. KABELMETAL NIG. LIMITED (2008) LPELR-591 (SC). The Appellant contend that the award of N50,000,000.00 as general damages by the trial Judge in favour of the Respondent is in brazen disregard of settled principles of law. The general damages which the Respondent alleges to have suffered, were not demonstrated or established before the trial Court to have resulted from or, as being a direct consequence of the supposed breach of the

contract -Exhibit D. The Appellant rely on UNION BANK OF NIGERIA PLC. V. ODUSOTE BOOKSTORES LIMITED (1995) 9 NWLR (PART 421) 558 AT 586.

On the second question, the Appellant submits that for the sake of argument that Respondent even actually suffered loss for which he could be properly awarded damages for breach of contract as restitution, the question still remains whether the trial Judge was right in awarding him N50,000,000.00 (Fifty Million naira) damages, when the law is settled that only ‘nominal damages’ can be awarded in such instance. Can N50,000,000.00 be by any imagination nominal damages for loss which the Respondent and the trial Judge merely speculated? Damages of N50,000,000.00 is with all due respect to the trial Judge, a most outrageous and disproportionate award in the circumstances of this case. Cited BADMUS V. ABEGUNDE (1999) 7 SCNJ 76 @ 106; (1999) LPELR-70S (S.C.). The Appellant states that the Respondent having not demonstrated remoteness of the damages he suffered by consequence of the termination of the License Agreement, and thus, placing on the Court the latitude to decide what amount would be fair as damages in the

circumstance, the trial Court ought to have awarded a reasonable sum far less than N50,000,000.00 as damages, having regard to the above principle enunciated by the Supreme Court that damages should not be awarded in excess of injuries suffered. The Appellant urge this Honourable Court to upturn the findings and decisions of the Lower Court on this issue.

RESOLUTION
After a careful consideration of the Notice of Appeal, the record of appeal and briefs of learned Counsel for the parties, I am inclined to adopt the issues formulated by the Appellant being the party dissatisfied with the judgment appealed against. The issues shall be determined seamlessly to avoid repetition and for expediency.

The Appellant in the first issue challenged the finding of the trial Court that the contract between the parties was wrongfully terminated. It is settled and beyond citing of legal authorities that parties are bound by the terms of their agreement, see the case of LARMIE V. DATA PROCESSING MAINTENANCE & SERVICES LTD (2005) LPELR-1756 (SC) where the apex Court held thus:
“The law is trite regarding the bindingness of terms of agreement on the parties.

Where parties enter into an agreement in writing, they are bound by the terms thereof. This Court, and indeed any other Court will not allow anything to be read into such agreement, terms on which the parties were not in agreement or were not ad-idem. See Baba v. Nigerian Civil Aviation Training Centre, Zaria (1991) 5 NWLR (Pt.192) 388; Union Bank of Nigeria Ltd. v. B. U. Umeh & Sons Ltd. (1996) 1 NWLR (Pt.426) 565; S.C.O.A. Nigeria Ltd. v. Bourdex Ltd. (1990) 3 NWLR (Pt. 138) 380 and Koiki v. Magnusson (1999) 8 NWLR (Pt. 615) 492 at 514.”
Per MOHAMMED ,J.S.C ( P. 46, paras. D-F )
See also the case of EDILCON (NIG) LTD V. UBA PLC (2017) LPELR-42342(SC); UWAH & ANOR V. AKPABIO & ANOR (2014) LPELR-22311 (SC); DALEK (NIG) LTD V. OMPADEC (2007) LPELR-916(SC).

or contradict the terms of the written instrument: See Mrs. O. D. Layade v Panalpina World Transport NY Ltd (1996) 6 NWLR (Pt 456) 544, Glaloye v Balogun (1990) 5 NWLR (Pt 148), Union Bank of Nigeria Ltd v Ozigi (1994) 3 NWLR (Pt 333) 385.”
Per OKORO, J.S.C ( P. 27, paras. B-D )

The parties have agreed that Exhibit D, the License Agreement dated 21st February, 2008 is the copy signed by the parties and therefore, the contract to regulate the relationship between the parties. In the said agreement, the tenor of the license is found at Clause 10 which says:
“Subject as herein provided this license shall take effect from the 21st day of February, 2008 and shall remain in force up to 20th day of February, 2013 and thereafter continue until determined by either party upon giving the other party thirty days notice of intention to terminate this agreement. The determination/termination of this agreement shall take effect at the expiration of the notice.”

The letter of termination was written on the 21st November, 2012 and delivered on the 7th December, 2012. In the said Exhibit D, termination shall take effect after the period of Notice

and Clause 5 also says:
“Notwithstanding, anything herein above provided the licesor shall have the right to withdraw this license granted in any of the following events.
L(i) where the Licensee has not attained the age of 65 years, but in the opinion of the of the licensor has attained the age that renders him/her incapable of efficiently managing the station.
L(ii) Withdrawal of license within the meaning of this clause shall mean that the licensee’s license to operate the station shall cease forth with upon delivery of a letter terminating the licences of the licensee or his representative at the station.

There is also clause 5(i) and (ii) also touching on termination of the license and it provides as follows:
5(i) if the Licensee does not any act likely to bring disrepute to the Licensor or any of its products or if he commits any act of Dishonesty or fraud.
5(j) if the licensee fails to meet the required standard of housekeeping of the station.”

From above, there are two basic categories under which the Appellant can withdraw the license, one is on the ground of age and the second is on the ground of dishonesty or fraud, where the station is not well maintained.

As observed earlier, Exhibit A18 at pages 67 of the record clearly stated a reason for the termination of license and it said thus:
“We wish to inform you that your appointment as licensee of Apo Service station has been terminated effective from 21st November, 2012. This is in line with the new strategic direction of the company regarding our service stations across the country.”

The Appellant’s argued that the trial Court failed to take into cognizance the refusal of the Respondent to comply with the offer to invest N100,000.000 (One Hundred Million Naira) made by the Appellant; That being in violation of Clause 5(i) and (j) of Exhibit D, which could bring disrepute to the Appellant; and the Appellant was right to terminate the contract. The burden of proving that the Respondent breached the terms of Exhibit D so as to warrant the termination of the agreement rest squarely on the Appellant.

The basic question is whether the terms of Exhibit D were complied with in terminating the licensee’s agreement to run the filing station as done by the Appellant?

It must be noted from the onset that the letter of termination of the agreement gave a reason for the termination of the license, Exhibit A18, I reproduce it earlier in this Judgment.

In proving that the Respondent is in breach, the Appellant in its pleading at paragraph 25 averred thusly:
“The defendant also avers that the failure of the plaintiff to comply with the defendants directive to pay the said N100,000,000 (one hundred million Naira) was the basic reason for the determination of his license with the defendant.”

If we agree that the terms of the agreement are sacrosanct between the parties, was the issue of investing N100,000,000 (One Hundred Million Naira) mentioned in Exhibit D as a condition to keep the agreement subsisting? Where was it stated that when the licensor makes an offer it must be accepted or the contract will be terminated. The Appellant did not even plead the actual act that was not in place in keeping the station well and/or the act that brought the Appellant into disrepute. Disrepute in whose opinion? What is disrepute? To my mind and before we get the dictionary definition of disrepute, the common

man’s opinion is that it is any conduct that constitutes an infraction of acceptable standard of behavior, of any conduct which is despicable and morally reprehensible as to bring the appellant into disrepute. From the Merriam-Webster the word disrepute is defined as lack of or decline of good reputation; a state of being held in low esteem.

If we accept that disrepute generally involve conduct, the Appellant was under a duty to plead and prove the conduct that was likely to Appellant a disrepute. Infact, the Appellant was blowing hot and cold, approbating and reprobating at the same time. How could an offer which ordinarily should either be accepted or refused be a conduct that is reprehensible? And furthermore, the demand for whooping sum of N100,000,000 (One Hundred Million Naira) was unilaterally imposed without even the courtesy of a discussion coming in the midst of a contract still subsisting thereby shifting the goalpost in the middle of a game. The Appellant cannot consider a conduct that is reprehensible without naming such in the agreement or a conduct that the society will generally frown at.

The Appellant’s counsel also submitted that, the Respondent failed to meet the minimum standard required in maintaining the station without stating in clear terms what the area of failure is, and when it did reserve the right to introduce new terms into the contract at any point in time during the life span of the agreement. Indeed, Exhibit A14 was extraneous and cannot be read into the agreement, see HYDRO-OTECH (NIG) LTD & ANOR V. LEADWAY ASSURANCE CO. LTD & ORS (2016) LPELR-40146(CA) wherein the Court held thus:
“Additionally, it is firmly established that extraneous matter cannot be read into or used to modify a written agreement. See U.B.N. v. Ajabule (2011) 18 NWLR (Pt. 1278) 152 @ 185, paras. F – G; Ogundepo v. Olumesan (supra).”
Per OREDOLA ,J.C.A ( P. 38, paras. C-D )

The trial Judge was not in error in arriving at the finding that the agreement was violated by the termination before the first named period which in any case was open to continuation. The argument of the Appellant is misconceived and unfortunate. The Appellant, under the law and the agreement has no right to make the demand as part of the agreement. It cannot unilaterally alter the terms of the

agreement, see AFRICAN INTERNATIONAL BANK LTD V. INTEGRATED DIMENSIONAL SYSTEM LTD & ORS (2012) LPELR-9710 (SC) wherein the Court held thus:
“The parties are bound by the terms and conditions contained in their contract, and cannot act outside these terms and conditions. Neither of the parties to a contract can unilaterally alter nor read into a written agreement a term which is not embodied in it.”
Per GALADIMA, J.S.C ( P. 79, paras. D-E)

It is autocratic, oppressive and intimidating.
The agreement also named the period of notice that either side can give to the other which is 30 days. The letter of termination of the contract, Exhibit A18 did not give the 30 days Notice, another area of breach. When the Appellant failed to meet conditions precedent to termination of the contract, termination can no longer be forthwith and still be lawful. It would have played foul of the agreement and the law. I disagree with the Appellant’s counsel that Clause 5 of Exhibit D is a special provision, what is special therein? It is wrong of the Appellant’s counsel to want to recreate what is plain and clear and what should be interpreted according to the literal rule of interpretation.

Flowing from above, the findings of the trial Court that there was a breach of the contract between the parties cannot be faulted. I therefore resolve issue one against the Appellant.

On issue two the Appellant questions the finding that upon the wrongful termination of the contract, the Respondent is entitled to the return of his security deposit of N15,000,000 (Fifteen Million Naira) which is covered by Clause 2(vi) and 2(x) of Exhibit D. it states thus:
“2(vi) On the expiration or withdrawal of this license, the licensor shall have the right to deduct from the security deposit the cost of any repair or replacement of its fixtures, fittings, plants, equipments, and chattels which might have been damaged not due to wear and tear but negligence or carelessness of the licensee or his servants and or ganets or which might have been removed from the premises unless by the authorized licensor’s staff, or servants or agents. The licensor shall also deduct from the said deposit any debt owed to the licensor by the licensee. The Licensee shall then be entitled to have to have the balance of

the deposit if any refunded to him/her by the Licensor on the withdrawal of the License.
2(x) At the withdrawal of the license, the Licensee or his representative shall attend at the station and in the presence of a Representative of the Licensor, stock of the products, equipment, and other assets shall be taken to determine appropriate liabilities of the parties to each other. Where the Licensee refuses to take part in the stocktaking, the stock recorded by the Licensor shall be binding on the parties. Thereafter, any indebtedness by the Licensee to the licensor shall reserve the right to take any action it deems fit to recover any amount in excess of the security deposit.”

By the simple wordings of the two provisions reproduced above which are unambiguous, the parties at the termination of the contract are expected to take stock and reconcile their accounts. The right to debit the sum deposited as security deposit can only arise where there is damage to property or there is an outstanding debt.

The Respondent in his evidence told the Court below that Exhibit A2 acknowledged the receipt of the security deposit which was to be kept in trust

for the Respondent and be refunded after reconciliation and the Appellant contends that it can only be paid after a proper reconciliation. What does proper reconciliation connote here when business was transacted on cash and carry basis and furthermore, the Respondent also stated that there was a reconciliation on the 19th December, 2012 by both parties and there was no cross examination nor was it controverted. It is trite that evidence which is not controverted and the witness not cross examined is accepted by the adverse party, see STATE V. HARUNA (2017) LPELR-43351 (CA) wherein the Court held thus:
“…. The witnesses’ evidence were neither challenged nor contradicted under cross-examination. It is settled law that evidence of the prosecution which is not contradicted or disputed by an accused is deemed to have been accepted or admitted by that accused person. See UBANI & 2 ORS V. THE STATE (2003) 12 SCNJ 111 at 130.
Per DANIEL-KALIO, J.C.A ( Pp. 12-13, paras. B-D)

The Appellant also accepted the responsibility to carry out the needed reconciliation and if they now say it was not done then it is absolutely their choice and they have no

justification to sit on Respondent’s money because of their own lapse or failure to do the needful reconciliation it offered to carry out. Exhibit A18 said:
“Consequently, we request that you hand over all company assets under your care to the sales Representative shamsudeen Bakare; while we reconcile your terminal account and repay your security deposit.”

The Respondent by virtue of Exhibit A18 had no need to formally request for the refund when the Appellant clearly said it would refund whatever was due to the Respondent. In any case, the agreement was terminated prematurely and the deliberate refusal to refund could be tied to the reasons for the termination of the relationship.

It is therefore strange that, learned counsel for the Appellant is singing a different tune. The deliberate refusal to repay the deposit is rather unfortunate and disappointing. Business is not done in that manner, whatever was clearly agreed upon particularly in writing should be honoured, there should be some integrity in the manner the Appellant relates with its business partners.

I am not convinced by the mechanistic arguments of the Appellant and I agree with the Court below that the Appellant is bound to refund the security deposit of N15,000,000 (Fifteen Million Naira) only. I resolve this issue against the Appellant.

The third issue revolves around the award of damages. The law is settled that where there is a breach of contract, the available remedy is in damages, see NWAOLISAH V. NWABUFOH (2011) LPELR-2115 (SC) where the Court held thus:
“In the consideration of remedies for breach of contract, the options open to a party to a valid contract is an action for damages in breach of the contract. Ben-Nelson (Nig.) Ltd. V. Moro Local Government, Kwara State (2006) 8 NWLR pt. 1037, pg. 623.”
Per ADEKEYE, J.S.C ( P. 39, paras. D-E )

The Respondent in his claim sought the following in damages:
“N500,000,000.00 (Five Hundred million Naira) special and general damages for malicious, wrongful and unlawful termination of the Licensee agreement between the Plaintiff as a licensee of Apo Village service Station and the defendant company”.
The trial Judge found that special damages was not proved and awarded N50,000,000.00 (Fifty Million Naira) only as general damages

for wrongful termination of the agreement thus, the basis for this issue. That was done after the finding that the agreement was wrongfully terminated. The Appellant now contends that the trial Court having found that special damages were not proved, it should not have awarded general damages. It is trite that there are 2 categories of damages that the Courts award, these are special and general damages, see the case of ADIM V. NB.C. LTD. (2010) 9 NWLR (PT. 1200) 543 S.C where the Court held:
“There are two species of damages known to law, special and general damages. They are simply defined as: “A special damage is such a loss that will not normally be presumed as the natural consequence of the defendant’s fault, but which depends on the special circumstances of the case and therefore it must be specifically pleaded and strictly proved by evidence. General damages on the other hand is such a loss which flows naturally from the defendant’s act. It needed not be specifically pleaded, it arises by inference of law and need not be proved by evidence, it suffices if it is generally averred in the pleading.” The distinguishing feature is generally that of

pleadings, proof and the mode of assessment. One is specially pleaded and strictly proved because it is exceptional in its nature as the law cannot infer from the nature of the act which gave rise to the claim. The other is one that the law can aver as having been suffered and which can be presumed as the natural or probable consequences of the act complained of but the quantification is at the discretion of the Court.”
Agreed that a party generally cannot be entitled to both special and general damages as double compensation under the same head and a double claim is certainly not appropriate in an action for breach of contract but there are exceptions to the rule that you cannot claim both special and general damages, see AGU V GENERAL OIL LTD (2015) LPELR-24613(SC) where the apex Court said thusly:
“undoubtedly, the award of damages lies primarily within the domain of the trial Court. It discharges the function by a judicious estimation of the loss suffered by the plaintiff. A party who has no difficulty in quantifying the actual pecuniary loss occasioned by the breach, as in the instant case, recovers his loss if same has been specifically

pleaded and proved. It is only where the plaintiff has difficulty in quantifying his actual loss that he claims in general damages and, on establishing defendant’s liability the trial Judge to make an assessment of the quantum of damages that can be said to have been a natural or probable consequence of the breach of contract occasioned by the defendant.”
Therefore, claiming both special and general damages does not vitiate the suit or make it impossible to award damages that would put the Claimant in the position he should have been if the breach had not occurred, I said so in KEYSTONE BANK LTD V SHEMOMAL NIGERIA LTD (2016) 4 WRN 95 at 131. It is only what is proved that can be granted. Award of damages is generally within the purview of the trial Court and it is a discretion if well exercised cannot be interfered with by the Appellate Court, see ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY & ANOR V. EKWENEM (2009) LPELR-482 (SC) wherein the apex Court held thus:
“The award of damages is at the discretion of the trial Court. An appellate Court will not interfere with an award of damages by a trial Court surely because it is

inclined to award a different amount. In order to justify reversing the decision of a trial Court on the question of the amount of damages, it will generally be necessary that the appellate Court be convinced either that:- a) The Court acted upon some wrong principle of law or under a mistake of law. b) The award is arbitrary or perverse. c) There has been an element of wrong exercise of discretion in the award. d) Injustice would result if the appeal Court does not interfere. e) The amount awarded by the Court is either ridiculously high or ridiculously low that it must have turned out to be wholly erroneous estimate of the damages. Ziks Press Ltd. V Ikoku (1951) 13 WACA 188 Bala V Bankole (1986) 3 NWLR pt. 27 pg. 141 Tsokwa V Motors (Nig.) Ltd. V Awoniyi (1999) NWLR pt. 587, pg. 423 Onwu V Nka (1996) NWLR pt. 458 pg. 1 Ijebu – Ode L.G V Adedeji Balogun Company Ltd. (1991) NWLR pt. 166 pg. 135. S.P.D.C (Nig.) Ltd. V Tiebo VII (1996) 4 NWLR pt. 445, pg. 657 Allied Bank v. Akubueze 1997 NWLR pt 509 pg. 374.”
Per ADEKEYE, J.S.C (Pp. 25-26, para. A)

In this case, the contention of the Appellant on double compensation is without any legitimate basis because the Court found that special damages were not proved and simply awarded general damages whose assessment is within the discretion of the trial Court. General damages are such that the law presumes to be the direct natural and probable results of the act complained of which is not really required to be strictly proved and it is unlike special damages as explained above, it requires specific pleading and proof. The Court in the case of OWENA MASS TRANSPORTATION CO. LTD V KEHINDE IMAFIDON (2012) 4 NWLR (PT. 1290) 332 at 349-350 said thusly:
“Where there is a claim for special damages and another separate claim for general damages, the failure of the claim for special damages will not stop the Court from awarding general damages if merited.”

The Appellant argued that the award of N50,000,000.00 (Fifty Million Naira) as general damages amount to double compensation since the refund was also ordered. The Appellant forgot so quickly that, that was money kept in trust by the Appellant and was to be refunded upon the termination of the agreement. It was not claimed as special damages and therefore, it is not a compensation but a refund of

money kept in trust for the Respondent, it was admitted by the Appellant. I agree with the trial Judge that, the Respondent deserved to be awarded general damages due to unlawful termination of the agreement and the manner it was done smacks of vindictiveness and malice. Once a contract is wrongfully terminated and proved, damages is the natural consequence that follows, see MISS PROMISE MEKWUNYE V EMIRATES AIRLINES (2019) VOL. 23 WRN 1 where the apex Court explained the difference between compensatory damages and general damages where malice was the basis for the breach of contract, it held thusly:
“It is to be noted that there are two general categories of damages that may be awarded if a breach of contract claims is proved and these are compensatory damages and compensatory damages also called “actual damages” which cover the loss the non breaching party incurred as a result of the breach of contract and the amount awarded is intended to make good or replace the loss caused by the breach. This is based on the principle, restitution in integrum. See British Airways v Atoyebi (2014) 13 NWLR (Pt.1424) 253. Within compensatory damages the innocent

party may be entitled to recover general and special damages depending on the circumstances. General damages are monetary recovery in a law suit for injuries suffered such as pain, suffering, opportunity cost, economic loss suffered and inability to perform certain functions or breach of contract for which there is no exact monetary value which can be calculated. General damages are distinct from special damages which are specific costs and so is different from punitive (exemplary) damages for punishment when malice, interest or gross negligence was a factor and to punish the defendant for his conduct in inflicting that harm. I shall with humility reiterate that, general damages are said to be damages that the law presumes and they flow from the type of wrong complained about by the victim. They are compensatory damages for harm that so frequently results from the tort for which a party has sued; that the harm is reasonably expected and need not be alleged or proved. A long line of cases of this Court have followed this line but I shall refer to a few. British Airways v Atoyebi (supra); Odiba v Azege (1998) 9 NWLR (Pt.566) 370; (1998) LPELR-2215, P. 15, paras.

D-F (SC). PER MOHAMMED, JSC. As per Kekere-Ekun JSC in the British Airways v Atoyebi (supra) at page 286:- “General damages, such as the law presumes to be the natural and probable consequences of the defendant’s act need not be specifically pleaded. It arises by inference of law and need not therefore be strictly proved by evidence and may be availed generally”. I further refer your Lordships to the following decisions of this Honourable Court to wit:- AGUNWA v ONUKWUE (1962) 1 All NLR 537; SHELL B.P. v COLE (1978) 3 SC 183; W.A.E.C. v KOROYE (1977) 2 SC 45; REYNOLDS v ROCKONOH 2005 10 MJSC 159…A sum of money awarded in a civil action by a Court to indemnify a person for the particular loss, detriment, or injury suffered as a result of the unlawful conduct of another. Compensatory damages provide a plaintiff with the monetary amount necessary to replace what was lost, and nothing more. Indeed, this Honourable Court has held in the British Airways v Atoyebi (supra) that general damages are compensatory damages. See also UBN Plc v Ajabule & Anor (2011) LPELR-8239 (supra). In Artra Ind. Nig. Ltd v N.B.C.I. (1998) LPELR-565, P.48, Paras. F-G SC, it was

held that “the award of general damages is another way of compensating the plaintiff for the loss of expected profit and the freight on the goods”. Per Onu JSC. Also in Wahabi v Omonuwa, (1976) LPELR-3469) at page 17, paras. C-D, the Supreme Court held that:- “General damages are those which the law implies in every breach of contract (see also Marzetti v Williams (1830) 1 BFA d.415), and where no real damage has been suffered may be a trifling amount”. Per Igigbe, JSC. See in Cameroon Airlines v Otutuizu, (2011) LPELR-827 SC, the Apex Court held at page 31. That position has long been recognised by this Court and my learned brother, Rhodes-Vivour in the case of Cameroon Airlines v Otutuizu (2011) LPELR-827 SC stated as follows at page 31 thus:- “Once breach of contract is established, damages follow. General damages are thus losses that flow naturally from the adversary and it is generally presumed by law, as it need not be pleaded or proved. Per Iguh JSC.
This is viewed within the precinct of the Supreme Court decision in Gabriel Ativie v Kabelmetal Nig. Limited (2008) 10 NWLR (Pt.1095) 399 per Onnoghen JSC (as he then was) thus:- “Assessment of

damages for breach of contract is based on the doctrine of restitution in integrum, which is to the effect that in so far as the damages are not too remote, a plaintiff should be restored, as far as money can do it, into the position in which he would have been if the breach had not occurred. It is in line with the above principle that award of damages in breach of contract cases should be such as: (a) may fairly and reasonably be expected to arise naturally, i.e. according to the usual course of things from such breach of contract itself; or (b) 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. Okongwu v N.N.P.C. (1989) 4 NWLR (Pt.115) 296”. The follow up to the above is that the general damages awarded by the trial Court were within the contemplation of the parties and the Court of Appeal had no excuse to interfere in that exercise of discretion of the trial Court by setting aside that award as the award was compensatory damage for losses reasonably expected to arise naturally from the nature of the particular breach of contract. The interference by the Lower Court being unjustified, should be disturbed at this level.”
Per PETER-ODILI, J.S.C ( Pp. 34-45, paras. B-D )

The Appellant in its Reply brief raised the issue of failure of the trial Court to evaluate evidence which is a new issue. A reply brief is meant to respond to new issues raised in the Respondent’s brief and not meant to repair the case of the Appellant, see the case of EZEANI V. FRN (2019) LPELR-46800 (SC) wherein the apex Court held thus:
“As I noted earlier in this judgment, the Appellant filed a reply brief which in my opinion is a re-argument of the case of the appellant and not reply to new issues in the respondent’s brief. The law is trite that a reply brief is not an opportunity to improve the argument of the appellant. Rather, it is to answer the arguments in the respondent’s brief which were not taken in the appellant’s brief. In circumstance therefore, I shall not go into it further. See Mozie & Ors v. Mbamalu & Ors (2006) 15 NWLR (Pt. 1003) 466, (2006) LPELR – 1922 (SC), Oguanuhu & Ors v. Chiegboka (2013) 6 NWLR (Pt. 1351) 588, (2013) LPELR – 19980 (SC).”
Per OKORO, J.S.C ( P. 14, paras. B-F)

The Appellant went on a second journey in trying to canvass fresh arguments in respect of the issues already argued, this is not acceptable and such new areas will be discountenanced.

The Appellant seems to suggest that the damages suffered are not a direct consequence of the breach of Exhibit D, and I say with regards to the circumstances of this case, where else could damages have come from? The Respondent was running the station he turned around and only for the Appellant to first split it into two naturally diminished his profits and turned round to demand the investment of One Hundred Million. That demand that purportedly an offer for investment was disingenuous because it failed to take roots from Exhibit D and using it to terminate the agreement as admitted by the sole witness of the Appellant pursuant to their pleadings cannot be denied at this stage. There was nothing sentimental about the award of damages, if the Appellant could with a finger demand for One Hundred Million and the refusal to pay led to the termination of a working relationship, it means that they saw in the Respondent somebody of that value and when damages are

to be assessed, the Court can also use the same parameters to assess damages to be paid to such a person. In general damages, the assessment is done by the trial Judge and not speculative in this case and they damages were neither remote, outrageous nor unreasonable.

The trial Judge having exercised discretion and me not having found basis to interfere, the award of N50 million damages to the Respondent is reasonable and I also affirm same. Flowing from above, this issue is also resolved against the Appellant.

Having resolved the issues settled for determination against the Appellant, the appeal lacks merit and is hereby dismissed. The judgment of HON. JUSTICE M. KOLO delivered on the 25th January, 2016 is hereby affirmed.
Cost of N100, 000.00 is awarded against the Appellant and to the Respondent.

PETER OLABISI IGE, J.C.A.: I agree.

MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned brother; YARGATA BYENCHIT NIMPAR, JCA. I agree with the reasoning, conclusion and orders therein.

Appearances:

CHINWE GODWIN OMOAKA, Esq. with him, MUNACHISO MICHAEL, Esq. For Appellant(s)