Monier Construction Company Ltd. V. Tobias I. Azubuike (1990)

LawGlobal-Hub Lead Judgment Report

AGBAJE, J.S.C. 

On 12th February, 1990, I dismissed the appellant’s appeal summarily subject to the accidental slip of the lower court in the assessment of the damages due to the respondent which I corrected. I indicated then that I would give the reasons for my judgment today. I now proceed to do so.

The plaintiff, Tobias I. Azubuike sued the defendant’s company, Monier Construction Company Ltd. in an Imo State High Court, holden at Okigwe, claiming the following as per paragraph 12 of his statement of claim, since the latter supercedes the writ of summons:-

12 “Wherefore the plaintiff claims from the defendant the sum of N100,000.00 made up as follows:-

(i) N72,000.00 being the value of stone chippings removed on or about 16th and 17th December, 1977 by the servants, agents or workmen of the defendant from the land in occupation of the plaintiff, at Isulabo, Uturu Okigwe, within jurisdiction.

(ii) N20,000.00 being the cost of yams, cassava and other crops destroyed in the plaintiff’s farm in the course of the removal of the said chippings, at Isulabo Uturu aforesaid.

(iii) N8,000.00 general damages.”

Pleadings were ordered, filed and exchanged. The case proceeded to trial before Abai Ikwechegh, J. (as he then was), who after hearing the parties and their witnesses found in his judgment dated 11th June, 1982 for the plaintiff on the issue of liability and awarded him N72,000.00 damages, being the full amount the plaintiff had contracted to sell the stone chippings in question to a company called Hispacon Nigeria Ltd.

The defendant company was not satisfied with the judgment. It appealed against the whole decision to the Court of Appeal Enugu Division.

The defendant lost its appeal on the issue of liability but succeeded partially on the issue of damages. The Court of Appeal, coram Maidama, Akpata, Babalakin, JJ.C.A., as per the lead judgment of Maidama, J.C.A., in which the other Justices concurred ruled as regards the latter as follows:-

“The next finding challenged by the appellant, is the finding that it was liable to pay to the respondent the sum of N72,000.00 as damages. This amount includes the value of the chippings as contained in Exhibit A plus the profit the respondent would have made if he had executed the order in Exhibit D. It was submitted that there was no justification for the award of this amount because evidence led by the respondent showed that exhibit D was issued in August, 1977 and the alleged removal took place on 16th December, 1977. The order expired in February, 1978 and by that time the respondent was away in Benue State and could not have been prevented from executing the order. He was not therefore entitled to receive the amount shown on exhibit D. The learned trial Judge was therefore in error in awarding N72,000.00.

I entirely agree with this submission. In my view the respondent could only be entitled to recover the price of the chippings which according to exhibit A was valued at N64,000.00. In the circumstances this appeal therefore succeeds and it is hereby allowed. The damages awarded by Ikwechegh, J. (as he then was) is hereby set aside and in its place judgment for N64,400.00 as damages is substituted with costs assessed at N250.00 to the appellants”.

The defendant is again not satisfied with the decision of the Court of Appeal but this time, according to its amended notice of appeal, the part of the decision of lower court complained of is as follows:-

“That part of the decision dealing with the capacity of the plaintiff/respondent, and also the issue of the inadmissibility of EXHIBITS “A”, “B” and “D” which non-rejection has brought about the award of N64,400.00 damages against the defendant/appellant even though the appeal was allowed by the Court of Appeal. As a matter of interest and of justice, EXHIBIT “A” reads N62,400. and not N64,400.00.”

The defendant’s grounds of appeal are as follows, leaving out their particulars except those of ground 4:-

“1. The learned Justices of the Court of Appeal erred in law by making like mistake of law as the trial court did by awarding of N64,400.00 as damages to the plaintiff/respondent who lacks the capacity to sue as he did.

2. The learned Justices of the Court of Appeal erred in law when they held that EXHIBITS “A”, “B” and “D” were properly admitted at the trial because defendant/appellant’s counsel did not object to their inadmissibility.
3. The learned Justices of the Court of Appeal erred in law by failing to upset the judgment of the trial court which acted upon the inadmissible hearsay evidence of the son of the plaintiff/respondent.
4. The award of N64,400.00 by the Court of Appeal was based on faulty and wrong principles of law:-

(1) The award of N64,400.00 bears no relevance to the special damages claimed in both the writ of summons and the statement of claim.

(2) The question was not that of general damages

(3) The award was excessive

(4) There was no proof of the special damages.

(5) EXHIB1TS “A”, “B” and “D” are documents in pari delicto, ex nihilo nihil.

(6) “Mr. T. I. Azuhuike Bros. Construction Co.” and/or “Messrs T. Azubuike Brothers Construction Co.” are/is not the same as plaintiff/respondent.

(7) The said companies in (6) above are neither incorporated nor registered according to law.

(8) The Court of Appeal had no right to award damages to a non-person or non-persona.

(9) The son of the plaintiff/respondent was the only alleged eye witness and he did not testify. There is no more evidence to support the claim of damages and the claim should fail.

(10) Plaintiff/respondent travelled to the north for many months and at no time during his absence was it reported to him by courier or correspondence by his said son or workers that a loss as heavy as N72,000.00 chippings had been inflicted on him. The situation remained so until he returned home normally.

5. The judgment is against the weight of evidence.”

Briefs of arguments were filed on both sides.

The issues raised in the defendant’s brief relate to

(1) the capacity of the plaintiff to sue in his personal capacity in this case

(2) the admissibility of certain documentary and oral evidence and

(3) the assessment of the damages due to the plaintiff if issues 1 and 2, both of them, are resolved against the plaintiff.

In view of the issues involved in this appeal as I have just outlined them, I have to set down the averments in the plaintiff’s statement of claim upon which his claims against the defendant are grounded:-

1. “The plaintiff is a building and civil engineering contractor and resides at Uturu Okigwe in Okigwe Judicial Division. The plaintiff is also a big farmer and has large acres of cultivated farm lands planted with cassava, yams and other crops.
2. The plaintiff also is engaged in the supply of crushed some chippings to various contracting firms, individual contractors and some State Ministries of Works and Housing, in different parts of the country.
3. On or about the 16th and 17th of December, 1977 in the absence of the plaintiff the defendant by their agents, servants and/or privies led by a police constable in uniform unlawfully broke and entered and trespassed into the plaintiff’s worksite at Uturu and using the defendant’s tipper lorries and pay loaders loaded and removed plaintiff’s 2400 cubic yards of crushed chippings heaped on the plaintiffs worksite at Uturu without the plaintiff’s authority and consent.
4. The said plaintiff’s 2400 cubic yards of crushed stone chippings unlawfully removed by the defendant were purchased, and delivered to the plaintiff by the Femaco Crushing Industry Emene for onward supply and delivery to the Hispacon Nigerian Limited, which has placed an order with the plaintiff for the supply and delivery of 2400 cubic yards of inch and inch sized stone chippings valued at N72,000.00 (copy sales invoice will be founded upon at the trial.)
5. As a consequence of the defendant’s unlawful acts of trespass and removal of the plaintiffs, some chippings and also the defendant refusing to return same back to plaintiff in obedience to the police orders/and or advice the plaintiff was unable to supply, satisfy if execute the order of the Hispacon Nigeria Limited and thereby lost order (copies of order and cancellation of order by Hispacon Nigeria Limited will be founded upon at the trial.)
6. The defendant has refused or neglected to return back the said plaintiff’s crushed stone chippings totalling 2400 cubic yards and valued at N72,00.00 despite repeated demands.”

It is also necessary to refer to the evidence for the plaintiff at the trial court in support of the above averments of his. In this regard, I refer first to the following evidence of the plaintiff himself:-

“I know the defendant’s company known as M.C.C. On the 16th and 17th December, 1977, I was away in Benue State, and on my return early in 1978 I was informed by my son that M.C.C. had removed my chippings…

I had stacked the chippings on my site on my land on my worksite where I normally heaped chippings preparatory to serving my customers. When I went to my worksite, I discovered that all the quantity of chippings I had on the land had been removed. I had left on the site about 2400 cubic yards of chippings. I went to the police at Okigwe as I was much aggrieved.

… I told the police that I had bought the chippings from Femaco Crushing Industry, Emene, and that M.C.C. must return the chippings to me. I even took the policeman to Emene and I showed him the documents covering the purchase. I had valid documents from the vendors at Emene. This is the invoice for the purchase of the chippings – Invoice of 18th August, 1977, No. 1152 received as Exhibit A

… The defendant’s failure to return the chippings cost me a job I would have done at Hispacon Nigeria Limited. This is the order I got from Hispacon Nigeria Limited. The order was to have been satisfied by February, 1978, but defendant’s activities made it that I could not satisfy this order. The order from Hispacon Nigeria Limited was worth N72,000.00 to me…

…The chippings had been brought to my site from Emene in my three lorries, and in addition I hired two more to evacuate the chippings to Uturu. Each of my three lorries was carrying on each trip 14 cubit yards of chippings. These are the delivery notes brought in by the drivers of the lorries and relate to the haulage of the chippings from Emene to Uturu pack of 170 delivery notes received by defence…

…I have been dealing in supplying crushed chippings from 1954.

…I said that I had a contract order from the Hispacon Nigeria Limited, construction engineers. This is the job order from the company for supply of chippings tendered, no objection. Document dated 8/8/77 admitted as the Exhibit D. I did not satisfy this job order. I did not satisfy the order because the M.C.C. defendants removed the chippings which I had assembled for supply to the company. The order to me was worth N72,000.00. I had piled up 2400 cubic yards of chippings for satisfying this order, but defendants trespassed into my premises and removed the chippings…

Cross-examined by Offoaro…I had been dumping my chippings on this site since 1972… I began placing orders with Femaco of Emene in 1977. This was not the only order I ever placed with Femaco… .

…I have been a contractor for about 15 years from before the war. I had been supplying chippings to companies. I got chippings… took the job order to Emene and placed the order for 2400 cubic yards. I paid in cash of N16,000.00 and the company gave me credit for the balance. I did not pay this amount on the same day I placed the order. We had agreed on the total supply price of N62,400.00 before I paid in the N16,000.00 and the balance was on credit.

…The chippings were mine and defendants removed them…

I see the Exhibit B here. These delivery notes were not made out on one day…

I made a cash payment of N16,000.00 to the Emene Company. He wrote this sum down on the purchase invoice and this is on the cash invoice Exhibit A…

I say emphatically that the chippings removed by defendants were mine.”

Next I go to the evidence of P.W.1, Richard Ugorji:-

“… I see the Exhibit D., I signed it as the technical director and project manager of Hispacon Company. I know the plaintiff. I placed this order with plaintiff as we needed the chippings in our construction work on the Okposi-Amasiri-Nguzu Edda Road. I placed this order on this Exhibit D.”

Next I refer to the following evidence of P.W.2, Felix Maduagwu:-

“… I know the plaintiff. He is a contractor here at Okigwe. On 9th August, 1977, the plaintiff came to my office and said he had a contract to supply a foreign firm chipped stone of various sizes. He requested that I supply him the chipping. We had discussions about supply and the plaintiff gave me an LPO for supply of 2400 cubic yards of chippings. We agreed on the price of N26 per cubic yard. On 18/8/77 the plaintiff came and paid a deposit of N16,000.00 but I used our sales invoice receipt to show that he has paid the sum of N16,000.00. I did not issue my receipt for this sum of N16,000.00 leaving a balance of N46,400.00. What is shown me here is the sales invoice receipt I issued to plaintiff tendered, no objection, sales invoice No.1152 dated 18/8/77 admitted as Exhibit A. This cash invoice is duly stamped with an 18k postage stamp. After paying this deposit, the plaintiff began to take delivery of the materials, and on 20/8/77, he began collection. Plaintiff sent his drivers in a fleet of tippers with letter to collect the chippings an a my workers issued delivery notes as the supplier were borne out. These delivery notes were issued from my factory at Emene – bundle of delivery notes tendered: no objection made, and bundle of 170 delivery notes is identified now, having been admitted as Exhibit B in the plaintiff’s evidence.

The pleading of the plaintiff and the evidence in support leave no one in any doubt that the plaintiff’s case at the trial court was that the stone chippings which the defendant removed from the plaintiff’s land where the stones were kept by him belonged to him. It was the plaintiff’s case that he personally bought the stone chippings from a firm called Femaco Stone Constructing Industry of Emene in Anambra State and that he caused the same to be delivered on his land whence the defendant removed them. It was equally the plaintiff’s case that he had personally contracted to sell the stone chippings to a company, Hispacon Company, before the defendant removed them and thereby frustrated the contract.

However, the plaintiff had put or caused to be put in evidence the following documents.

First:- Exhibit A.

“EXHIBIT ‘A’ – HO/1/79

FEMACO STONE CRUSHING INDUSTRY

EMENE-ENUGU

CASH INVOICE No.1152

Mr. T. I. Azubuike Bros. Construction Co.

P.O. Box 64,

Okigwe Dated 18th Aug. 1977

Qty PARTICULAR OF FOODS RATE VALUE

2400 Two thousand four hundred

cubic yards 1/2″ & 3/4 Chippings

at N26.00k per cubic Yard

Paid N16,000.00

To Balance N46,400.00

To be paid in two instalments

TOTAL N62.400.00

Amount in words: Sixty-two thousand four hundred naira Nil Kobo.

RECEIVED THE ABOVE GOODS IN GOOD CONDITION NO

REFUND OF MONEY AFTER PAYMENT

(Sgd) Manager’s Sig. (Sgd) Customer’s Sig.”

Second:- Exhibit D;

Exhibit ‘D’ Job Order:

HISPACON NIGERIA LIMITED

Construction Engineers

Amaseri Camp, 36 ORLU ROAD,

P.O. Box 238, P.M.B.1223,

Afikpo. AMAKOHIA-OWERRI,

IMO STATE, NIGERIA.

8th August 1977

Our Ref HNL/A/467

Messrs T. Azubuike Brothers Construction Co.,

P.O.Box 64,

Okigwe.

Dear Sir,

JOB ORDER

You are requested to supply and deliver to our Amaseri site 1/2 and 3/4 sized chippings.

Total quantity of 1/2″ sized chippings required is 1400 cum at N30.00 per cum i.e. N42,000.00. Total quantity of 3/4″ sized chippings required is 1000 cum at N30.00 per cum i.e. N30,000.00. The total cost of this order is N72,000.00 to be paid on the completion of the supplies. This job order shall be cancelled if not executed before the end of February, 1978.”

and third Exhibit B which I need not copy. They are delivery notes.

Exhibit A, B, and D were obviously put in evidence in support of the oral evidence in proof of paragraph 5 of the plaintiffs statement of claim which for ease of reference I reproduce again here:-

5. “The said plaintiff’s 2400 cubic yards of crushed stone chippings unlawfully removed by the defendant were purchased, and delivered to the plaintiff by the Femaco Crushing Industry Emene for onward supply and delivery to the Hispacon Nigerian Limited, which has placed an order with the plaintiff for the supply and delivery of 2400 cubic yards of 1/2″ and 3/4″ sized stone chippings valued at N72,000.00 (copy of sales invoice will be founded upon at the trial.)”

It is to be noted that in Exhibit A, B, and D, the transactions in question were said to be with a firm, Messrs T. Azubuike Brothers Construction Company. It is because of this that counsel for the defendant in his oral submissions to us and in the defendant’s brief of argument, has submitted that the plaintiff lacked the capacity to bring this action.

His submissions before us ran as follows:-

“It is submitted and contended that an unregistered company such as the one reflected in EXHIBITS “A” “B” and “D” is not a non entity as it used to be under the common law: See

(a) Business Law: Principles and Cases 4th Edition 1978 by LUSK, Hewitt, Donnell and Bames PP. 293-294 Capacity of Parties Unincorporated Associations and Companies.

(b) Under English Law, for example, Unregistered Companies may be wound up under section 399 Companies Act 1948: Re Banque des Marchands de Moscou (1958) Ch. 182 (1954) 2 All E.R. 746. By statute therefore an unregistered company has acquired a new status above a non-entity.

(c) Under the High Court Rules of Eastern Nigeria Cap. 61, 1963, rules 2,3 and 6 of order IV deal with joint ground of suit, representative capacity of partners, in that order. Unregistered associations are hereunder accommodated in matters of who can sue or be sued.

(d) Odgers Principles of Pleadings and Practice in Civil actions in the High Court of Justice: 221st Edition: by Casson & Dennis PP. 18-21

In an action founded on contract, as well as on Tort, it is essential to state the parties correctly. A false start as in the present appeal, may not only entail delay and expense but could even be fatal in the sense that the remedy against even the right party may be lost for ever.

(e) Under the Nigerian Companies Act, 1968, various sections have bestowed a quasi-corporate personality on unregistered companies distinguishing them from their owners and partners. Refer especially to ss.363-367 on winding up of unregistered companies; s.379 restricted application of the act to unregistered companies; ss.414-416, 213, 360,364-366, to mention a few, all deal with unregistered companies.

From the foregoing instances, it goes without saying, therefore, that where a person or group of persons make a representation in the name of an unregistered company as reflected in EXHIBITS “A”, “B” and “D”, contrary to the finding of the Court of Appeal on the issue, that unregistered company cannot be brushed aside without more, and a single or more persons springing up to make claims under the same representation or contract without reference to the unregistered company and without explaining what the connection is. A court of law will not condone any such deceit or surprise contemplated.”

The only relevant rule of court cited by counsel for the appellant, as I see it, is rule 6 of order IV of the High Court Rules of the former Eastern Nigeria applicable in Imo State High Court of Justice which says:

6. “Any two or more persons claiming or alleged to be liable as partners may sue or be sued in the name of the firm in which they were partners when the cause of action arose; and any party to an action may in such case apply to the court for a statement of the names and addresses of the persons who were when the cause of action arose, partners in any such firm, to be furnished in such manner, and verified on oath or otherwise as the court may direct.”

The highest one can put the submissions of counsel for the defendant having regard to Exhibits A, B, and D and the evidence in this case is that the plaintiff was at all times material to this case trading or carrying on business in the name of a firm, messrs Azubuike Brothers Construction Company and the plaintiff has not sued in the firm’s name as he might or could have done under order IV rule 6 of the High Court rules of the former Eastern Nigeria applicable in Imo State High Court.

Order IV rule 6 in question is in pari materia with order XLVIII A rule 1 of the Rules of R.S.C. U.K 1891. In Noble Lowndes and Partners (a firm) and Hadfields Ltd. Same v. Same (1939) 1 Ch. 569 Farwell, J., adverting to order XL VIII A rule 1 (U.K.) said at pages 571 and 572:-

“Order XLVIII enables persons carrying on business in partnership to sue or be sued in the firm name, but that is a rule made for convenience, and an action by or against a firm notwithstanding the rule remains an action by or against the individual members of the firm.”

(italics mine)

It follows, in my judgment, that it cannot be said that an individual member of a firm lacks the capacity to sue in his personal names in respect of a transaction involving the members of the firm because of the provision of order IV rule 6 of the rule in question. In the instant case, the only evidence available is to the effect that the plaintiff is carrying on a one man business and that he carries on that business under the name of a firm. He is evidently qualified to sue in his personal name in respect of the transactions of that firm. That is what the plaintiff has done in this case.

The contention by counsel for the defendant, Chief Njemanze, that the plaintiff lacks capacity to sue in this case lacks merit in my judgment. So I reject it.

It is submitted by counsel for the defendant that Exhibits A, B, & D, are inadmissible because they are not pleaded. The short answer to that is that, as I have shown earlier on in this judgment, these documents, each of them, are tendered as evidence of facts pleaded in the plaintiffs statement of claim. This being so, it is the law that they should not be pleaded. In this regard I refer the decision of this court in Thanni v. Saibu (1977) 2 S.C.89 at page 116 where Sowemimo, J.S.C., as he then was, delivering the judgment of this court said:-

“Further, with respect to the submission of learned counsel that these Exhibits should not have been received in evidence (and if received should not have been acted upon) because the appellants failed to plead the same we think attention should be drawn to the provisions of order XXXII rule 5 of the Supreme Court Civil Procedure Rules Cap.211 Vol. X 1948 edition of the Laws of Nigeria applicable in the Lagos State High Court at the time of the hearing by the High Court of these proceedings which read:-

“Every pleading shall contain statement of all material facts on which the party pleading relies, but not the evidence by which they are to be proved, such statement being divided into paragraphs numbered consecutively, and each paragraph contain as nearly as may be a separate allegation.”

(italics ours)

In Davy v. Garrett (1877)7 Ch D 473 the Court of Appeal in England was of the view that the rule of court (similar to the provision above) which provides that evidence is not to be pleaded applies to admissions (such as here) as well as to other evidence. In his judgment James, L.J., made the following observations:

“…it is said that part of the resolution is evidence supporting the plaintiff’s case, but the rules of court expressly forbid the statement of evidence in pleading. The party is to state facts constituting the wrong of which he complains and he is not to state evidence, whether consisting of admissions or not.” (italics ours)

(See 7 Ch. D. at 485)

And on the same issue, Brett, L.J., dealing with rule 41 similar to the provisions of our rule under consideration had this to say:-

“The distinction is here pointed out that every pleading shall contain a statement of the material facts on which the party pleading relies, but not the evidence by which they (that is, those material facts) are to be proved. The distinction is taken in the very rule itself, between the facts on which the party relies and the evidence to prove those facts. Erle, C.J., expressed it in this way. He said there were facts that might be called the allegata probanda, the facts which ought to be proved, and they were different from the evidence which was adduced to prove those facts.”

I am therefore satisfied that Exhibits A, B, & D were properly admitted in this case having been tendered without any objection to their admissibility.

The decision in Olukade v. Alade (1976) 1 All N.L.R. part I 67 applies there, In that case it was held:-

“(2) It is, however, the duty of the opposite party or his counsel to object immediately to the admissibility of such evidence, but if the opposite party fails to object:

(a) The trial court in civil cases may (and in criminal cases must) reject such evidence ex proprio motu; but

(b) On appeal, and provided the evidence is one which is, by law, admissible under certain conditions, then since the opposite party failed to object to its admissibility at the court of trial or by implication consented to its admissibility (although the conditions precedent have not been shown to have occurred) he cannot be allowed to raise the objection in the Appeal Court.

(3) Where, however, evidence is by law inadmissible in any event, it ought never to be acted upon in court (whether of first instance or of appeal), and it is immaterial that its admission in evidence was as a result of consent of the opposite party or that party’s default (in failing to make objection at the proper time).”

From what I have said above, it cannot be said that Exhibits A, B and D, none of them, are by law inadmissible in any event because none of them was pleaded. I have held that the law does not require them to be pleaded. So, such cases as National Investments & Properties Co. Ltd. v. Thompson Organisation Ltd. (1969) 1 N.M.L.R. 99 at 104 which decide that facts not pleaded go to no issue do not apply here. Evidence in support of fact not pleaded goes to no issue either. Again that this is not the case here I have shown earlier on in this judgment.

Even if Exhibits A, B & D are inadmissible, which in my judgment they are not, the decision of the court below would have been the same on the admissible evidence. This is so, in my view, because there is the oral evidence of P.W.2, the managing director of Femaco Stone Crushing Industries as to the sale and delivery of 2400.00 cubic yards of chipping at N26.00 per cubic yard i.e. N62,400.00. The evidence is an eye witness account of the transaction. It is primary evidence of the transaction. I need not bother to refer to the eye witness account of the transaction to which Exh. D relates. For the lower court in any case in assessing the damages due to the plaintiff thought Exh. D was irrelevant. So in my judgment the admission of the alleged inadmissible evidence could not have occasioned a miscarriage of justice. So the decision could not have been overturned by me because of the alleged inadmissible evidence. See sec. 226 of the Evidence Act.

It is true as contended by counsel for the defendant that the evidence of the plaintiff that his son told him that it was the defendant who collected the stone chippings from the plaintiff’s land was hearsay evidence. It is inadmissible per se. It cannot form the basis of any decision in this case. So, it cannot be said on the basis of that evidence that the defendant removed the stone chippings in question.

However, besides this hearsay evidence, there is the statement of defence of the defendant which admitted the removal of the chippings from the plaintiff’s land, although it was asserted that the removal was carried out under a claim of right. The claim of right was rejected by the trial court and the Court of Appeal and rightly too in my view. There is also the oral evidence of P.W.3, Ephraim Ejiofor, a police sergeant, as to the removal of the chippings from the plaintiff’s land by the servants of the defendant at the instance of the latter.

It is evident that the admission of the hearsay evidence could not have caused a miscarriage of justice. Without it the decision would still have been the same. See again section 226 of the Evidence Act.

I said I corrected a slip in the assessment by the Court of Appeal of the damages due to the plaintiff against the defendant. The slip occurred in the following passage from the judgment of the lower court:-

“In my view, the respondent could only be entitled to recover the price of the chippings, which according to exhibit A was valued at N64,000.00. In the circumstances this appeal therefore succeeds and it is hereby allowed. The damages awarded by IKWECHEGH, J. (as he then was) is hereby set aside and in its place judgment for N64,400.00 as damages is substituted with costs assessed at N250.00 to the appellants.”

The assessment of damages was based on Exh.A which I have copied earlier on in this judgment. According to Exh. A the value of the chipping is N62,400.00. So it was a slip for the lower court to have said that Exh. A read N64,000.00 and then to go on to award N64,400 damages. Counsel for the plaintiff herself admitted that the proper amount the lower court should have awarded having regard to Exh. A was N62,400.00. So I had no difficulty in correcting the award due to the plaintiff accordingly.

It was for the above reasons that I dismissed the defendant’s appeal on 12th February, 1990.

ESO, J.S.C.: I have had a preview of the comprehensive reasons given by my learned brother Agbaje, J.S.C., in this case. I am in full agreement and would not wish to add anything more to the reasons.

UWAIS, J.S.C.: On the 12th day of February, 1990, I dismissed this appeal with N500.00 costs to the respondent and reserved my reasons for doing so till today. I have had the advantage of reading in advance the reasons for judgment read by my learned brother, Agbaje, J.S.C. As it was for the same reasons that I dismissed the appeal, I adopt his reasons as mine. I have nothing to add.

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SC.173/1988