‘Where there is contract, court is to interpret it for parties’

Before their Lordship Sylvester Umaru Onu (JSC), Niki Tobi (JSC), Dahiru Musdapher (JSC), Sunday Akinola Akintan (JSC), Walter Samuel Nkanu Onnoghen (JSC). SC 91/2002BetweenAdetoun Oladeji (Nig) Ltd …. AppellantAndNigerian Breweries Plc …. RespondentJudgment of the Court delivered byNiki Tobi. JSC. This appeal involves a fairly narrow area. It is the amount of damages awarded. At […]

Before their Lordship Sylvester Umaru Onu (JSC), Niki Tobi (JSC), Dahiru Musdapher (JSC), Sunday Akinola Akintan (JSC), Walter Samuel Nkanu Onnoghen (JSC). SC 91/2002
Between
Adetoun Oladeji (Nig) Ltd …. Appellant
And
Nigerian Breweries Plc …. Respondent
Judgment of the Court delivered by
Niki Tobi. JSC.

This appeal involves a fairly narrow area. It is the amount of damages awarded. At the trial court, the learned judge awarded the sum of N25 million. The Court of Appeal reduced the sum to N833,333.00. This appeal is against the damages awarded by the Court of Appeal. It is the case of the appellant that the amount is too low. Reliefs were filed and exchanged. The appellant formulates six issues for determination:
(i) Whether the damages due to the appellant in this case was only the profit it could have made for one month having regards to the terms and conditions of the contract in Exhibit B (Covers ground 1).
(ii) Whether the Lower Court could in law rely on evidence of unpleaded facts by either the Appellant or the respondent in this case to set aside the sum of N l, 249,000.00 as awarded to the appellant by the trial court as special damages for wrongful seizure and detention of the Appellant’s empty bottles of assorted products? (Cover grounds 3 &7).
(iii) Whether the Lower Court was right in setting aside the sum of N931, 405.30 awarded in favour of the appellant by the trial court in this case for non- delivery of goods paid for by the respondent? (Covers ground 4)
(iv) Whether the rule and decision in Hadley V. Baxendale (1854) 9 Exch 341 has a binding force on Nigerian courts any longer having regards to this Court decision in Eloichin (Nig) Ltd. & Ors vs.Victor Mbadiwe (1986) ANLR 1 at 14 (covers ground 5).
(v) Whether the lower court was right in law to reduce the sum of N25 million general damages awarded in favour of the appellant by the trial court to N833, 333.00 in view of the quantity and quality of the unchallenged evidence and findings of fact which the lower court believed was not perverse.(Covers grounds 6 & 8).
(vi) Whether the decision of the lower court in this case conform with principles of law regulating proper and correct evaluation and appraisal of evidence. (Covers grounds 2 and 9)”
The respondent formulated three issues for determination:
Ltd cited by counsel for the appellant. He distinguished the case of Eloichin (Nig) Ltd v. Mbadiwe (1986) All NLR 1 at 14 from the case of Hadley v. Baxendale. Although the award of general damages is a matter for the trial court, an appellate court will interfere in appropriate cases, counsel argued, He contended that this is one such case and the Court of Appeal rightly interfered in the award. He did not see the evidence of PW6 as evidence of proof of damages for breach of contract but as proof of the appellant’s annual profit. On Issue No.3, learned counsel submitted that a plaintiff in an action for detinue must first establish that he is the owner of the thing, the recovery of which he is seeking. He cited Sodimu v. Nigerian Ports Authority (1975) All NLR 151 at 160. This appellant failed to do as it neither pleaded nor proffered evidence required to sustain the claim for detinue before the trial court, counsel argued. He went into the pleadings, particularly, paragraphs 4 and 12 of the Further Amended Statement of Claim, paragraph 11 of the Statement of Defence, the evidence before the trial court and submitted that the appellant failed to prove strictly the claim before the trial court. Citing Saliba v. Yassin (2002) 4 NWLR (Pt. 75) 1 at 18 – 19 and Udechukwu v. Okwuka (1956) 1 FSC 70 at 71, learned counsel submitted that the appellant’s claim to detinue must fail.
Learned counsel did not agree with the contention of the appellant that the issue of detinue was a new issue. He referred to paragraph 19(iii) of the pleadings of the appellant and argued that the case of the appellant at the trial court was in detinue.
He cited Labode v. Otubu (2001) 7 NWLR (Pt. 712) 256 at 276 and urged the court to uphold the decision of the Court of Appeal 2nd dismiss the appeal.
Learned counsel for the appellant stated the grounds of appeal and their particulars from pages 3 to 7 in the appellant’s brief in detail. I must say that brief is not the place to enumerate grounds of appeal and their particulars. They belong exclusively to the Notice of Appeal; not the brief. Parties take issues which deal with the grounds of appeal in their briefs. In other words, grounds of appeal start and end their journey in the Notice of Appeal and issues which reflect the grounds are argued in the brief. I will therefore not consider pages 3 to 7 coaling with the grounds of appeal and their particulars, unless these are specifically attacked in the arguments in the brief. I do not think they were attacked. The appellant asked for N75, 000.000.00 general damages. The learned trial judge awarded N25,000.000.00. In making the award, the learned trial judge distinguished the case of Mobil Oil Nigeria Ltd v. Akinfosile (1969)1 NMLR 217 and said at pages 148 to 150 of Record:
“The instant case is however not a case of breach of agreement simpliciter and the facts are distinguishable from Mobil’s case.
Here the plaintiff has given evidence to the effect that before the allegation of fraud it had paid for supply of 1,900 cartons of assorted drinks to the defendant which the defendant refuses to supply. It also gave evidence that it had 4,619 cartons of empty bottles of assorted products which the defendant seized and detained. I had earlier on held all these as established.
Further evidence given by the plaintiff was that it could no longer continue in business as a result of the act of the defendant.
It is pertinent to observe that the defendant did not formally terminate the agreement of the plaintiff but kept on asking it to wait for the outcome of the investigation into the fraud. I feel that the plaintiff is entitled to substantial damages which I assess at N25,000.000.00. The Court of Appeal did not agree with the award of N25,000.000.00 general damages.
Delivering the judgment of the Court of Appeal, Onalaja, JCA said at pages 230 and 237 of the Record. The contract between the parties was Exhibit B which provided for a term of one month previous notice of intention to determine the contract to be given to the other party…. The appeal on Issue 1 succeeds with the appeal allowed in part with the reduction of the damages for breach of contract of Exhibit B to N833, 330.00. Exhibit B is the agreement between the parties. It is the letter appointing the appellant as a distributor.

To be continued next week.