Hyacinth Nwachukwu Nzeribe Vs Dave Engineering Co. Ltd (1993)

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ANTHONY IKECHUKWU IGUH, JSC.

In the Port Harcourt Judicial Division of the Federal High Court of Nigeria, the plaintiff, who is now the respondent, claimed against the defendants as follows:- (i) A declaration that the plaintiff is entitled to a refund of N149,635.20 being balance due to the plaintiff out of the sum of N624,000.00 deposited with the 2nd defendant as Bank guarantee in favour of the 1st defendant in respect of the purchase price of 200,000 bags of cement on board the ship “M.V. Vori”

(ii) The sum of N50,000.00 being damages against the 1st defendant for breach of contract. Originally, there were two defendants in this case, namely, the 1st defendant, who is now the appellant and the 2nd defendant, Mercantile Bank of Nigeria Limited.

The 2nd defendant following some reconciliation between the parties, dropped out of the suit before its actual hearing commenced. The hearing proceeded against the appellant only in damages for breach of contract. At the conclusion of the said hearing, Osakwe J., entered judgment for the respondent in the sum of N25,000.00 being damages for breach of contract. Being dissatisfied with this judgment, the appellant lodged an appeal against the same to the Court of Appeal, Enugu Division, which in a unanimous decision dismissed the appeal on the 10th day of April, 1987. Aggrieved by this decision of the Court of Appeal, the appellant has further appealed to this court.

The facts of this case, in so far as they concern the issues for determination in this appeal, are simple and straightforward. The appellant contracted in writing to sell and deliver to the respondent 10,000 metric tons of bagged cement, that is to say, 200,000 bags of cement ex ship “M.V. Vori.” The agreed purchase price was N3.12 per bag. Pursuant to this agreement, the respondent obtained from the 2nd defendant, a bank guarantee for N624,000.00 being the total purchase price of the said cement to ensure prompt payment by the bank to the appellant as and when deliveries were made to the respondent. In the course of deliveries, a dispute arose between the appellant and the respondent. This culminated in the institution of Suit No. FRC/PH/24/77 at the Federal High Court, Port Harcourt which ended in a non-suit hence the present action.

The patties in compliance with an interlocutory order of the trial court had reconciled the irrespective inventories of alL the cement delivered to the respondent and as a result executed Exhibit B. Exhibit B showed by consensus that 153,440 bags of cement were delivered by the appellant to the respondent while 43,760 bags were undelivered. There was however disagreement as to whether or not the remaining 2,800 bags of cement were in fact delivered. In view, however, of the said consensus, the respondent obtained an interim order for a refund by the 2nd defendant of the sum of N86,531.20 representing un-utilised advance purchase price for the undisputed 43,760 bags of cement not delivered to the respondent.

In consequence, the 2nd defendant ceased further participation in the case anti remained the stakeholder of N58,736.00 vis-à-vis the disputed 2,800 bags of cement aforesaid. The trial court duly heard evidence on the outstanding issues at the end of which judgment was entered against the appellant, the defence having offered no evidence. On appeal, as aforesaid, the Court of Appeal affirmed the decision of the trial court hence this further appeal. The appellant’s two grounds of appeal to this court, without their particulars, are as follows:

“1. ERROR IN LAW The learned Justices of the Court of Appeal erred in law when they upheld the decision of the learned Trial Judge who held that the plaintiff/respondent was entitled to general damages of N25,500.00 when on a calm view of the evidence adduced by the plaintiff/ respondent vis-a-vis his statement of claim, there was no legal basis for such award.

 2. ERROR IN LAW Their Lordships Justices of the Court of Appeal erred in law when they failed to appreciate that the learned Trial Judge erred in law when he refused to stay proceedings in the substantive suit but proceeded to final judgment in spite of the fact that this notice had been drawn to the order of the Court of Appeal granting the appellant leave to appeal against an interlocutory ruling of the trial Judge in the suit on an issue which went to jurisdiction.” The parties, acting pursuant to the Rules of Court, exchanged their briefs of argument. The two issues formulated on behalf of the appellant which we are called upon to determine are as follows:- “(i) Whether in view of this finding of the court of trial to the effect that the plaintiffs loss could not be conveniently calculated and bearing in mind the specific pleading as to loss by the plaintiff the Court of Appeal was justified in confirming the award of N25,500.00 to the plaintiff “for breach of contract and damages.”

(ii) Whether the Court of Appeal was right when it held that the High Court was justified in refusing to order a stay of proceedings on the ground that considering the fact and circumstances of the instant case the interlocutory appeal which was not before it for consideration and in respect of which it had granted leave to appeal is frivolous.” The respondent, for its own part, also identified two issues in its brief of argument as arising in this appeal for determination. These go as follows:- “(a) Whether the verdict of the Court of Appeal affirming the award of N25,500 as damages for breach of contract is perverse. (b) Whether the court of appeal erred in refusing to interfere with the discretionary decision of the trial court refusing stay of proceedings.” A close study of the questions posed in the respondent’s brief shows that they are substantially identical with the issue raised by the appellant in his own brief of argument.

I shall therefore adopt in this judgment, the set of questions formulated in the appellant’s brief for my consideration of this appeal. The pith and substance of the appellant’s argument in respect of the first issue is that the award of N25,000.00 as damages to the respondent was speculative and legally untenable in view, firstly of the finding of the trial court that the respondent’s loss could not be conveniently calculated and secondly, of the further fact that the award of damages for breach of contract was based on evidence at variance with the pleadings. Citing the cases of Dumex Nigeria Limited v. Ogboli (1972) 1 All NLR (Pt. 1) 241 at 249 – 251 and West African Shipping Agencies Nig. Ltd & Another v. Alhaji Musa Kalla (1978) 3 SC 21 at 31-32, learned appellant’s counsel, U.N. Udechukwu Esq., submitted that there is, in law, no room for speculative award and that the court cannot make an award of general damages taking into account things which it could have considered in awarding damages upon the specific particulars pleaded. He submitted that though strict proof means no more than such proof as would readily lend itself to quantification or assessment as held in Odulaja v. Haddad (1973) 11 SC 357, unless the plaintiff pleaded and proved facts which would assist the court in making the assessment or calculation, the court would decline to make the award. He contended that none of the claims pleaded in the statement of claim was strictly proved as required by law and that one was therefore in sympathy with the learned trial Judge when he observed that from the evidence before him, “the entire total loss in all cannot now be fully estimated. It seems to me that the losses suffered by the plaintiff cannot be conveniently calculated.”

He submitted that this, in effect, is a finding that the losses had not been strictly proved as required by law and he urged the court to answer the question posed in the first issue in the negative. On the second issue, the appellant’s complaint is that the court below failed to appreciate that by refusing to stay proceedings, the learned trial Judge had not only pre-empted the interlocutory appeal brought with the leave of the Court of Appeal but had rendered the same nugatory thereby confronting the Court of Appeal with a fait accompli.

He therefore contended that this is an injudicious exercise of discretion. He conceded that the pendency of an appeal does not operate as a stay of proceedings or stay of execution. He however submitted that it would produce a state of judicial anarchy and chaos if appeal courts grant leave to appeal and lower courts fully aware of such a fact proceed with the hearing of the proceedings before them in a manner which would render the appeal nugatory. Learned counsel finally urged the court to allow this appeal and order either that the judgments of the Court of Appeal and the trial court be set aside and the court below ordered to first dispose of the pending interlocutory appeal while the fate of the substantive suit awaits the outcome of the said appeal or alternatively that the respondent’s claims be dismissed. Learned counsel for the respondent, Dr. J. O. Ibik, in his reply stressed that this appeal is against the concurrent findings of both the trial court and the Court of Appeal. He urged that the appellant did not appear to have addressed the judgment of the court below which he was appealing against but appears instead to be quarrelling with the judgment of the trial court. On the first issue, learned counsel contended that the trial court found that the loss suffered by the respondent was far in excess of N71,328.80.

He described Exhibit B as an admission by the appellant that he did not supply 43,760 bags of cement to the respondent. There is also the uncontroverted and unchallenged evidence of P.W. 3 that the disputed 2,800 bags of cement were not supplied. The total number of bags of cement for which the appellant was in breach is therefore 46,560. On the evidence before the trial court, Dr. Ibik stressed that the respondent would have made a profit of N3.12 per bag vis-à-vis contract price. He pointed out that it is significant this evidence was not refuted by the appellant. He contended that the strict proof of special damages does not connote proof of such special damages beyond reasonable doubt as required in criminal cases as proof in civil law is on the balance of probabilities. He urged the court to hold that the award of N25,000 as damages for breach of contract is amply justified by the pleadings and the accepted evidence before the court and that the said award is indeed far less than the actual loss sustained by the respondents as specifically pleaded, claimed and proved before the trial court.

On the second issue, learned respondent’s counsel submitted that the subject matter of the case now on appeal reveals that the main relief claimed in suit No. FRC/PH/24/77 is entirely different from that claimed in the present action. He also argued that the parties and the issues in controversy in both cases are different and distinguishable. He contended that the order of non-suit rather than a dismissal, entered in the first suit preserved the unsuccessful plaintiff’s right of action hence the trial court had no difficulty in refusing the appellant’s application for a stay of proceedings of the second suit. He added that the trial court was at all events not supplied with any materials upon which to base the exercise of its judicial discretion in favour of the applicant.

All that was before it was the bare statement of the appellant’s counsel that his “application has been granted by the Court of Appeal; it stands to reason that this case be stayed by this court.” He therefore submitted that the answer to the second issue must be in the affirmative. He urged the court to hold that this appeal lacks merit and should be dismissed. Before I proceed to consider the issue that were raised for determination in this appeal, it is nece

Other Citation: (1993) LCN/2496(SC)