H.G.R. Limited V. Bikem Limited (2009)

LawGlobal-Hub Lead Judgment Report

MARY U. PETER-ODILI, J.C.A.

The Appellant as plaintiff in the High Court of the Federal Capital Territory (FCT) Coram: Hon. Justice Ndukwe-Anyanwu (as she then was) claimed as follows in the Amended Statement of Claim:-

1. Payment of the sum of N348,786.00 being the cost of additional expenses incurred in the course of developing the site at the instance of the Defendant and or its supervising engineer.
2. Payment of the sum of N258,000.00 being the cost of materials kept on site but which the Defendant had used or converted.
3. Payment of N350,198.00 balance on the actual contract sum.

The Defendant filed its statement of defence and the case proceeded to trial, at the end of which the learned trial Judge dismissed the plaintiff’s claim hence this appeal.

FACTS BRIEFLY STATED

The Appellant’s case is that it was awarded a building contract by the Defendant/Respondent at a total cost of Three Million, Three Hundred and Fifty Thousand, One Hundred and Ninety-Eight Thousand Naira only (N3,350,198.00). That a letter of award indicated that a sum of N350,198.00 was to be deducted from the total contract sum as discount.

On receipt of the letter of award, the Appellant wrote a letter to the Respondent rejecting the imposed discount contending that it was never discussed. The Appellant’s contention is that the project construction started before the letter of award was issued and that the issue of discount was taken up with the supervising Architect upon receipt of the letter of award and he assured them to go on with the project promising that the full fees would be paid.

The Appellant also argued that in the course of construction and on the instruction of the supervising Architect who acted for the Respondent, certain alterations/additional works were carried out which the Architect also promised would be fully paid for. The Appellant subsequently wrote to the Respondent stating details of those alterations/additional work. When the project came to an end, the Appellant sought to remove its unused materials and tools on site which were bought with its money but the Respondent refused. It was based on this refusal and non- payment of the full contract sum with expenses incurred on the additional/extra work that the Appellant instituted the action at the High Court.

The Respondents’ version is that the Respondent gave a contract to the Appellant for the development of Plot 77 Maitama, Abuja by virtue of Exhibit A (which is the letter of award) for a total sum of N3,350,198.00 (Three Million Three Hundred and Fifty Thousand, One Hundred and Ninety-Eight Naira only) with a condition that the actual contract sum to be paid to the appellant would be Three Million (N3,000,000.00) while the sum of N350,198.00 would be deducted as discount. That the Exhibit “A” further divided the contract into stages and Appellant through Exhibit “C” accepted Exhibit A but only a “passionate plea” to the Respondent to reconsider the reduction of 10% contract sum as discount. The Respondent did not consider the Appellant’s plea and the content of Exhibit “A” remained the basis of the contract. The Respondent while in the cause of the development of the Plot 77 Maitama pointed out several defects and requested Appellant to put them right in accordance with Exhibit B the bill of quantity but the Appellant failed to do so instead prepared another bill of quantity and requested for an additional sum of -N348,786.00 as cost of alteration which was not agreed upon by the parties. The Respondent contended that the Appellant only completed Phase 1 stage of the project and abandoned site leaving some materials on site which Respondent did not use. That the Appellant despite the clear content of Exhibit “A” and the fact that he proceeded with the contract accordingly made a summersault and brought a claim for the sum of N350,198.00 which clearly was not part of the agreement. Also that Appellant unilaterally made up a claim for the sum of N348,786.00 as additional work or alteration which was not part of the contract between them and so it was based on the above facts that the Appellants’ claim was dismissed by the court below.

On the 16/2/09, date of hearing Mr. Adekola Mustapha learned counsel for the Appellant adopted their brief filed on 7/6/07 and urged the court to allow the appeal. In the Brief learned counsel formulated two issues for determination which are:-

1. Whether in the circumstances of this case and the evidence adduced before the court, the dispute between the parties is one that can be determined without resort to oral evidence.
2. Whether the learned trial judge was right to hold that the Appellant did not discharge the burden of proof placed on it with regard to its claims for variation/additional work and materials left behind on the site but which the Respondent disallowed it from removing.

The Respondent and counsel were absent even though served on 11/2/09 and so the Respondent’s Brief filed on 6/3/08 and deemed filed on 23/6/08 was taken as argued by the court. In the Brief the Respondent framed five issues for determination which are as follows:-

1. Whether by virtue of EXHIBIT “A” and “C” there was a contract between the parties and what are the terms of the contract.
2. Whether the contract can be altered or varied by oral evidence.
3. If Issue 1 is resolved in the affirmative whether the Appellant accepted the Offer or Counter-offer and what is the effect in the circumstances of this case.
4. Whether the parties reached an agreement to pay for an additional work or an additional bill of quantity and whether same had been established in this court.
5. Whether the Appellant has discharged their burden of proof in this case and whether they have made out a case for the award of specific damages.

The issues as couched by the Appellant’s counsel being simpler I shall use them.

ISSUE NO.1

Whether in the circumstances of this case and the evidence adduced before the court, the dispute between the parties is one that can be determined without resort to oral evidence.

Mr. Mustapha, learned counsel for the Appellant submitted that PW1 had testified that the Appellant/Plaintiff had not agreed with the ten percent (10%) discount and apart from writing to the Respondent it also informed Architect Dele Oguneye who asked them to continue with the promise that the contract sum would be paid. That the witness had testified further that Architect Oguneye prior to this particular contract was well known to the Appellant and so there was no cause to doubt his verbal assurance. That this piece of evidence was not denied nor controverted at the trial so should be believed as the true position of things; He cited Health Care Product (Nig.) Ltd v. Bazza (2004) 3 NWLR (pt. 861) 582; Mainage v. Gwamma (2004) 14 NWLR (pt.893) 323; Marisaju v. Hassan (2004) 11 NWLR(pt. 883) 181.

Learned counsel for the Appellant said it was erroneous the statement by the learned trial Judge that when Appellant went ahead in execution of the contract it meant he accepted the terms as expressed in Exhibit A. That what the trial court said was speculative and has no basis in law nor supported by evidence. He cited Bisong v. Ekpenyong (2003) 5 NWLR (pt. 812) 156 at 159; N.N.S.C. v. Agricor Incorp (1994) 3 NWLR (pt. 332) 339.

Mr. Mustapha went on to contend that the law of contract is fundamentally a question of offer and acceptance and so Exhibit C is a counter offer. That if that counter offer had failed as the learned trial Judge believed, then there would not have been any contract and the Plaintiff/Appellant could not be said to have accepted the terms of the contract including the discount which it had unequivocally rejected in Exhibit C. He cited Dalek (Nig.) Ltd v. OMPADEC (2007) 7 NWLR (pt. 1033) 402 at 407.

That the law is that acceptance could either be in writing or by conduct and in this case the Respondent’s agent had communicated its acceptance of Exhibit C. He said if the trial court had carefully examined the circumstantial evidence surrounding the transaction between the parties, it would have discovered that the respondent was only looking for an escape route out of its responsibility to the appellant. That the oral evidence given on Exhibit C or the terms relating to the discount in Exhibit A should as a matter of necessity be admissible. He referred to Josephine Nwokedi v. Alphonsus Orakposin & ors (1992) 4 NWLR 120; Section 132(1) (d) Evidence Act.

Mr. Mustapha said there is no where it was stated in Exhibit A that all transactions regarding the contract would be reduced into writing. That the learned trial Judge therefore had no justification to read what was never intended and included in the contract by the parties to it in the exercise of his powers as a Judge. He cited Dalek (Nig) Ltd v OMPADEC (2007) NWLR (pt. 1033) 402; Olaoye v. Balogun (1990) 5 NWLR (pt. 148) 24.

For the Respondent it was submitted that the plea by the Appellant in Exhibit “C” is a mere passionate one and not a counter offer and so a literal and direct interpretation of Exhibit “C” should be made in the surrounding circumstances of the case. That there is in existence a valid contract between Appellant and Respondent by virtue of Exhibits “A” and “6” and the content of Exhibit “C” does not qualify as a counter offer by the Appellant. That there was no clear rejection of the contract on the part of the Appellant rather the Appellant accepted Exhibit ‘A’ and only made a case for a passionate consideration on grounds of “comfortability”, Mr. John Gaul for the Respondent said their position is further strengthened by the fact that Appellant went ahead and performed the contract based on the same terms in Exhibit “A” without any indication that the Respondent had agreed to accept the passionate plea. That the court should hold that there is a valid contract, the Respondent having made an offer and accepted by the Appellant on terms which did not stop them from still performing the contract the way it is as per Exhibit “A”. He said that an acceptance of an offer can be deduced from the contract of the parties and their documents in this case Exhibit A, Band C. He cited FGN v. Zebra Energy Ltd (2002) 18 NWLR(pt. 798) 162, 169 at 194.

Learned counsel for the Respondent concluded on the point by stating that in the construction of a contract the meaning to be placed on it is that which is the plain, clear and obvious result of the terms used. A contract or document is to be construed in its ordinary meaning as a question of fact. He referred to OMPADEC v. Dalex (Nig) Ltd (2002) 12 NWLR (pt. 78) 384.

Mr. Gaul further stated that once a contract is reduced into writing it cannot be varied except in writing. That the general rule is that where the parties have embodied the terms of their contract in a written document, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument in this case, Exhibit A. He cited Section 132(1) of the Evidence Act. He went on to state that once the contents and terms of a contract are reduced into a written document, oral evidence will not be admissible to vary the terms and content of that contract. That Exhibit A formed the basis of the contract and provided for the terms. Consideration and conditions of the contracts, Exhibit “B” is the instrument by which the contract was performed and Exhibit lie” is the acceptance of offer which was backed up by the performance of the contract. That the parties by the above exhibits did not in any way intend that the contract will be varied or contradicted or altered by oral evidence.

That Section 132(1) (a) – (e) (2) and (3) did not support the position of the Appellant. He cited Ihekwoaba v. ACB Ltd (2000) 10 NWLR (pt. 571) 590 at 621; O.H.M.B. v. Apugo &. Sons (1990) 1 NWLR (pt. 129) 652 at 657; Olanlege v. African Continental (Nig) Ltd (1996) 7 NWLR (pt. 948) 29; Beluonwu v. O.K. Isokariari &. Sons (1994) 7 NWLR (pt. 358) 587 at 602.

That in summary are the different positions taken by the parties, their submissions and cited authorities inclusive. I would quote some part of the judgment of the learned trial Judge salient for our purpose in the answering of the question raised in this issue and it is as follows:-

“The plaintiff in his evidence in chief alleged that the defendant had made him do additional work in the construction. The instruction as alleged by the plaintiff was verbal. The plaintiff supposedly took verbal instruction for the variations but the plaintiff should have been more prudent to have reduced this in writing for the defendant to sign before continuing with the variation. The court can only enforce what the parties intended to bind them. The parties intended that they would be bound by terms of the contract in writing and nothing else. It is standard practice that when instructions are given (sic) orally a prudent man reduces it in writing for endorsement. It is a form of protection for the plaintiff in the instant case it is the word of the plaintiff against the defendant as regards what was given as instruction for the variations. This variation the plaintiff is alleging needs to be proved strictly. All the instructions are oral and the contract contemplates that everything should and ought to be reduced in writing the parties intended to be bound by their contract in writing”.

I would refer to some judicial authorities which have the necessary guiding principles upon which I would anchor to see whether or not the findings of the learned trial Judge were the correct position.

Where as in this case, a contract between two parties has been reduced to the form of a series of documents, by virtue of Section 132(1) of the Evidence Act no evidence may be given of the terms of the contract except those series of documents, nor may the contents of those documents be contradicted, altered, added to or varied by oral evidence Okubule v. Oyagbola (1990) 4 NWLR (pt 147) 723 at 739 per Agbaje JSC.

The Appellant had strenuously based his point of view on the discussions and instructions of the supervising Architect who is Architect Oguneye, a man known very well to both parties, and that it was on his instructions on behalf of the Respondent that the Appellant proceeded with the variations and alterations which came to be the additional works Appellant embarked upon.

It is the practice that in a purely contractual situation, it is irrelevant on whose advice or opinion a party to the contract decided to resile from the agreement. That question whether he was entitled to do so or not will not at all depend on the advice or opinion of a third party unless the parties have agreed to make it so. F.G.N. v. Zebra Energy Ltd (2002) 18 NWLR (pt. 798) 162 at 216 per Ayoola JSC.

In Udogwu v. Oki (1990) 5 NWLR (pt. 153) 721 it was held by this court:-

1. If an agreement is not required by law to be in writing and it is nevertheless reduced into writing there may be an oral agreement to rescind or modify it before there is a breach.
2. But where a transaction is required by law to be in writing, oral evidence to vary it is inadmissible.

Such evidence must be written. However the parties to the agreement are free to rescind it before or after the breach.

3. In case where oral evidence to vary a contract is admissible it is necessary to examine the quality of the evidence adduced by the party tendering the oral evidence.
4. The general rule at common law is that extrinsic evidence will not be given to contradict or vary the effect of a written contract. Nevertheless and by virtue of Section 131(1) (d) of the Evidence Act oral evidence will be admissible to prove the existence of any distinct subsequent oral agreement to modify the contract Rocha v. Hussain {1958} SC NLR 280
5. An agreement for variation of an existing contract must itself possess the characteristics of a valid contract such as offer, acceptance and consideration.

In the construction of a contract, the meaning to be placed on it is that which is the plain, clear and obvious result of the terms used. A contract or document is to be construed in its ordinary meaning as question of fact. OMPADEC v. Dalek (Nig) Ltd (2002) 12 NWLR (pt. 781) 384; Aouad &. anor v. Kesuarani (1956) SCNLR 33; Union Bank of Nigeria ltd v. Ozigi (1991) 2 NWLR (pt. 176) 677.

Once the terms of a contract are written and signed by the parties thereto, it is such terms that the court will resort to in determining the rights and obligations of the parties and not the common law. Rank Xerox (Nig) Ltd v. Centrex (Nig) Ltd (1995) 1 NWLR (pt. 374) 703; W.N.D.C. v. Abimbola (1966) NMLR 381; Bello v. N.E.P.A (1978) 1 LRN 2001 Faponle v. University of Ilorin Teaching Hospital Board of management (1991) 4 NWLR (pt. 183) 43.The general rule is that where the parties have embodied the terms of their contract in a written document, extrinsic evidence is not admissible to add to, vary, subtract from or contract the terms of the written instrument. Ihekwoaba v. A.C.B. Ltd (1998) 10 NWLR (pt. 571) 590 at 621; Olaloye v. Balogun (1990) 5 NWLR (pt.148) 24.

The proviso to Section 132 (1) of the Evidence Act can only be used to admit oral evidence in cases where such evidence will not be inconsistent with the terms of the contract to which it relates. Nwokedi v. Orakposim (1992) 4 NWLR (pt. 233) 122 at 128; Colonial Development Board v. Kamson (1955) 21 NWLR 75; Nwabuoku v. Ottih (1961) 2 SCNLR 232; Alli v. lkusebiala (1985) 1 NWLR (pt. 4) 630; Ekwunife v. Wayne (W.A.) Ltd (1989) 5 NWLR (pt. 122) 422; Macaulay v. NAL Merchant Bank Ltd (1990) 4 NWLR (pt. 144) 283; Okubule v. Oyagbola (1990) 4 NWLR (pt. 147) 723 at 739.

The court respects the sanctity of contract made by parties.

Thus, where an agreement has been reduced into writing like the contract Exhibit A in the instant case, it is the words used that determines the intention of the parties, the legal relationship and legal consequences emanating from the said contract. Beluonwu v. O.K. Isokariari & Sons (1994) 7 NWLR (pt. 358) 587 at 602.

In a contract which is wholly in writing, what was agreed between the parties thereof will be normally discovered from what is written.

Accordingly, it is never the business or intention of the court to rewrite the parties’ contract for them and the court will not do that.

Orthopaedic Hospitals Management Board v. Apugo & Sons Ltd (1990) 1 NWLR (pt. 129) 652 at 656 – 657 per Uwaifo JCA (as he then was).

Parties are bound by the terms of the agreement they have entered into and so the court cannot legally or properly read into the agreement the terms on which the parties have not agreed. Per Ogbuagu JSC in the case of Dalek (Nig) Ltd v. OMPADEC (2007) 7 NWLR (pt.1033) 402; Evbuomwan v. Elema (1994) 6 NWLR (pt. 353) 638; Olaloye v. Balogun (1990) 5 NWLR (pt.148) 24; Layode v. Panalpina Transport (Nig) Ltd (1996) 6 NWLR (pt. 456) 544; Olatunde v. Obafemi Awolowo University (1998)5 NWLR (PT. 549) 178.

Having perused the judgment of the court below and the questions raised along each point of view of the parties it can be easily seen that the position of the Respondent’s counsel on behalf of his client which had been accepted by the learned trial Judge is the proper position supported by the evidence and the enabling statutes inclusive of Section 132 (1) of the Evidence Act. This is so because the contract binding on the parties is that captured in Exhibit A, the written contract which words are plain and need no exotic interpretation or can be said to have left any loop holes which need be filled in any way. Exhibit C is neither a counter offer nor an amendment to Exhibit A, rather it is the acceptance by the Appellant of the offer letter, Exhibit A for the main body of Exhibit C is as follows:-

“We also wish to accept the terms of the contract as agreed by both parties, but we are not in a comfortable position to accommodate the 10% discount as enumerated in your latter”.

Therefore the comfortability issue did not change what had been agreed by the parties as even confirmed by Appellant in that Exhibit C.

The intendment of the parties that they would be bound by that contract Exhibit A is manifest and so this extraneous or oral evidence which Appellant attempted to smuggle in to change that status has not succeeded and cannot succeed because their hands were already tied I further agree with the learned trial Judge that the variations the Appellant was screaming about needed to be strictly proved and that has not happened here. Therefore I see no reason to depart either from the findings of the learned trial Judge nor her conclusion that the Appellant failed to prove or establish the assertions he made. I cite in support the cases of Garba v. Zaria (2005) 17 NWLR (pt. 953) 58; Jolayemi v. Alaoye (2004) 12 NWLR (pt 887) 322; Also the cases of OMPADEC v. Dalek (Nig) Ltd (2002) 12 NWLR (pt. 781) 384; Union Bank of Nigeria Ltd v. Ozigi (1991) 2 NWLR (pt. 176) 677; Ihekwoaba v. A.C.B. Ltd (1998) 10 NWLR (pt. 571) 590 at 621; Olaoye v. Balogun (1990) 5 NWLR(pt. 148) 24.

On the basis of the foregoing I answer this issue in favour of the Respondent and that is that the court cannot depart from the written agreement of the parties to indulge the oral testimonies of the Appellant.

ISSUE NO TWO

Whether the learned trial Judge was right to hold that the Appellant did not discharge the burden of proof placed on it with regard to its claims for variation/additional work and materials left behind on the site but which the Respondent disallowed it from removing.

Learned counsel for the Appellant said that Exhibit D1-5 were bills setting out details of the alterations and cost for carrying them out which totalled N348,786.00. That the witness listed the materials left behind at the site and put the total cost of replacement at N258,000.00 and this evidence of the witness was not challenged, discredited or shaken under cross-examination and the safest conclusion is that the statement made by the witness is the truth of what it purports to represent. He cited Goodnews Agbi v. Chief Audu Ogbe &. 3 ors (2005) 8 NWLR (pt. 926) 40 at 67.

With regard to proof of the materials allegedly left behind at the site learned counsel for the Appellant referred to Exhibit E, the letter of protest written by the Appellant’s counsel to the Respondent complaining about its refusal to allow its client remove its materials and tools from the site. This letter was admitted in evidence and Respondent did not cross-examine the Appellant on it, nor denying receiving it. That it is not correct that the Appellant did not prove the materials and tools allegedly left behind because even if all were not proved which Appellant is not conceding the Appellant is entitled to the lesser amount sufficiently proved before the court. He cited Consolidated Breweries PLC v. Aisowieren (2001) 15 NWLR (pt. 736) 424 at 429; Olufosoye v. Fakorede (1993) 1 NWLR (pt. 272) 727.

Mr. Mustapha stated on that the Respondent’s denial of Exhibits D1-5 and E is a deliberate attempt to withhold the truth or an attempt to deny the plaintiff from getting what rightly belong to them otherwise why would the respondent wait for the appellant to institute an action before denying the facts contained in them. That the Respondent is estopped from denying the truth of the facts contained in the exhibit or at least takes it that the Respondent had waived its right or that it had nothing contrary to the Appellant’s position. He referred to Udu v Kraus Thompson Organisation Ltd (2001) 15 NWLR (pt. 736) 305 at 313; Ugwuanyi v. NICON Insurance PLC (2004) 1 NWLR (pt. 897) 612.

Learned counsel for the Appellant further contended that if a document is pleaded and admitted in evidence, it would be erroneous to expect the witness, the maker of the document and through whom it was tendered to begin to recite the content of the document already in evidence before the court as a crammed document since the document speaks for itself. He said Exhibits D1- 5 and E contains particulars of the alleged variation and cost while Exhibit E contains details of the materials left behind as well as its cost. That the law frowns at giving oral evidence of the content of a written document as provided by Section 132(1) of the Evidence Act.

In response, learned counsel for the Respondent stated that alterations minor or major form part of the contract and where any additional expenditure is incurred, all the parties will sit together and agree on the expenditure and then append their signature making it a final document. That in this instance the parties did not agree on the issues relating to the alterations and the amount that should be paid if any and that the Appellant cannot now seek to unilaterally prepare Exhibit D1 – 5 when the parties were not consensus ad idem. He cited Mandilas & Karaberies v. Otokiti (1963) 3 NSCC 25; Western Nigeria Development Corporation v. Abimbola (1966) NMLR 381 at 382; Xerox (Nig) Ltd v. Centrex (Nig) Ltd (1995) 1 NWLR (pt. 374) 703; Udogwu v. Oki (1990) 5 NWLR (pt. 153) 721.

Mr. Gaul further submitted that the plaintiff/Appellant failed to discharge the burden of proving the matter of the materials and tools they allegedly left on the site. He cited Sections 135 and 137 of the Evidence Act. That the Appellant listed the items but gave no details or specificity of the items and prices or value of the materials. That the Appellant’s claim is for specific damages and they failed to prove their claim for those items specifically. He cited Harold Shodipo &. Co. v. Daily Times (1972) 7 NSCC (pt. 633) 637.

He stated that in a claim under special damages, the plaintiff/appellant must prove the existence of the materials and in this instance no receipt was tendered to prove the existence of the materials and their cost. That the court will not award any such amount to the Appellant in the circumstance. He referred to Adekunle v. Rockview Hotel Ltd (2004) 1 NWLR (pt. 853) 164; Oceanic Bank (Nig) Ltd v. Chitex Ind. Ltd (2000) 6 NWLR (pt. 661) 464 at 478.

On the matter of special damages which incorporate the materials and tools allegedly left on site, the learned trial Judge found:

“There is no proof as to the existence or further still the quantities of the materials left on site.

This lack of proof of the existence of materials on site makes it impossible to authenticate this claim moreover, in a claim under special damages, the plaintiff must prove the existence of the materials.

No receipts were tendered to further prove the existence of these materials and their cost. For these reasons the court is unable to award such an amount in special damages”.

Special damages are granted by a trial court as a matter of right subject to strict proof of each item claimed per I.T. Muhammed JCA (as he then was) Adekunle v. Rockview Hotel Ltd (2004) 1 NWLR (pt. 853) 161 at 174; Ijebu-Ode LG v. Adedeji Balogun & Co. Ltd (1991) 1 NWLR (pt.166) 135; S.P.D.C. (Nig) Ltd v. Tiebo VII (1996) 4 NWLR (pt 445) 657.

A claim which is purported to be one in special damages cannot be so if there is no particularization of the various heads of the claim that totalled to the amount claimed. Olufosoye v. Fakorede (1993) 1 NWLR (pt. 272) 747.

It is the law that where in a claim for special damages the claimant proves less than the amount claimed, he will be entitled to the lesser amount proved. Olufosoye v. Fakorede (1993) 1 NWLR (pt.272) 747 at 762 per Achike JCA (as he then was) Mainage v. Guamma (2004) 14 NWLR (pt.893) 323 at 333 – 334 per Pats-Acholonu JSC:

When the evidence given by one party is not contradicted by the other party who has the opportunity to do so and such evidence proffered is not inherently incredible and does not offend any rational conclusion or state of physical things the court should accord credibility to such evidence. Omoregbe v. Daniel Lawani (1980) 3 – SC 108; Okoebor v. Police Council (2003) 12 NWLR (pt. 834) 444; Asafa Foods Factory Ltd v. Alraine (Nig) Ltd (2002) 12 NWLR (pt.781) 353; Adeyemi v. Bamidele (1968) 1 All NLR 31; Nwabuoku v. Ottih (1961) 2 SCNLR 232.

Special damages must be strictly proved. In proving special damages, credible evidence must be led in support notwithstanding the rule that pleadings or evidence which is unchallenged or uncontroverted could amount to proof. This is so because special damages are such that the law will not infer from the nature of the act. They do not follow in the ordinary cause of events. They are exceptional in character and therefore they must be claimed specifically and proved strictly. Health Care Products (Nig) Ltd v. Bazza (2004) 3 NWLR (pt. 861) 582 at 607; Alhaji Otaru & Sons Ltd v. Idris (1999) 6 NWLR (pt. 606) 330; Ijebu-Ode LG v. Adedeji Balogun & Co. Ltd (1999) 1 NWLR (pt. 166) 136; Odulaja v. Haddad (1973) 11 5C 357.

The onus is on the plaintiff to prove special damages strictly. In order to discharge the burden the plaintiff must show by credible evidence that he is indeed entitled to the award advanced by the plaintiff must show the same peculiarity as is necessary in line with his pleading. Health Care Products (Nig) Ltd v. Bazza (2004) 3 NWLR (pt. 861) 582; NB PLC v. Adetoun Oladeji (Nig) Ltd (2002) 15 NWLR (pt. 791) 589; Oshinjirin v. Elias (1970) 1 All NLR 153; Imean v. Robinson (1979) 3 – 4 SC 1; Obasuyi v. Business Ventures Ltd (2000) 5 NWLR (pt. 658) 668; Warner & Warner International Associates (Nig) Ltd v. F.H.A. (1993) 6 NWLR (pt. 298) 148; Ecobank (Nig) PLC v. Gateway Hotels (Nig) Ltd (1999) 11 NWLR (pt. 627) 397; Nzeribe v. Dave Engineering Co. Ltd (1994) 8 NWLR (pt. 361) 124.

In the law of contract there is no dichotomy between special and general damages as it is in the position in tort. The narrow distinction often surmised is one without a difference. In contract, it is damages simpliciter for loss arising from breach. Such loss must be in contemplation of the parties or one reasonably contemplated. The loss must be real not speculative or imagined. Oceanic Bank Int’l (Nig) Ltd v. G. Chitex Ind. Ltd (2000) 6 NWLR (pt. 661) 454 at 478- 479; Barau v. Cubitts (Nig) Ltd (1990) 5 NWLR (pt. 152) 630; P.Z. & Co. Ltd v. Ogedengbe (1972) 1 All NLR 202 at 210.

The case of Consolidated Breweries Plc & anor v. Joshua Aisowieren (2001) 5 NWLR (pt. 736) 424, seem to fit into the situation in this case when Tobi JCA (as he then was) said:

“A plaintiff who claims special damages must allege with particularity so that the defendant would not only know the amount of loss or damages which the plaintiff alleged he suffered, but also know such amount was made up or calculated. It is not enough for a party to tender in court receipts stamped ”paid” when it was the essence of the claim that costings had to be detailed and not lumped up together with unrelated documents. The obligation to particularize arises not because the nature of the loss is necessarily unusual but claim on a precise calculation must give the defendant access to the facts which make such calculation possible. Ngilari v. Mothercat Ltd (1999) 13 NWLR (pt. 636) 626; Imana v. Robinson (1979)3 – 4 SC 1.”

A claim which is purported to be one in special damages cannot be so if there is no particularization of the various heads of the claim that totalled to the amount claimed. Also, where in a claim for special damages the complainant proves less than the amount claimed, he will be entitled to the lesser amount proved. Consolidated Breweries Plc v. Aisowieren (2001) 15 NWLR (pt. 736) 424; Olufosoye v. Fakorede (1993) 1 NWLR (pt. 272) 747.

Special damages should normally consist of evidence of particular losses which are exactly known or accurately measured before the trial.

Strict proof does not mean unusual proof, but it simply implies that a plaintiff who has the advantage of being able to base his claim upon precise calculation must give the defendant access to the facts which make such calculation possible. Kurubo v. Zach -Motson Nig. Ltd (1992) 5 NWLR (pt. 239) 1021 Imana v. Robinson (1979) 3 – 4 SC 1.

In order to discharge the burden of strict proof in special damages claim, the plaintiff must show by credible evidence that he is indeed entitled to the award of special damages. The evidence adduced by the plaintiff must show the same particularity as is necessary to its pleadings. Consolidated Breweries PLC v. Aisowieren (2001) 15 NWLR (pt. 736) 424; Jaber v. Basma (1952) 14 WACA 140; Agunwa v. Onukwue (1962) 2 SCNLR 275; Oladehin v. C.T.M.L.(1978) 2SC 23.

Having considered what the learned trial Judge did in her deliberation of the pleadings and evidence before her, I see no reason to quarrel with her findings and evaluation which were clearly based on what was available.

For sure special damages must be pleaded specifically, with certainty and particularity a position absent in the case in hand. Unless unchallenged by the adverse party special damages must also be strictly proved. F.B.N. Plc v. Associated Motors Co. Ltd (1998) 10 NWLR (pt. 570) 441; F.B.N. Plc v. Abba (1998) 10 NWLR (pt.569) 227; F.B.N. Plc v. Nwankwocha (1998) 5 NWLR (pt. 551) 610; Salako v. Williams (1998) 11 NWLR (pt. 574) 505; N.M.B. Plc v. Aiyedun Investment Ltd (1998) 9 NWLR (pt. 527) 221; Ifeadi v. Atedz (1998) 12 NWLR (pt. 581) 205; Adeola v. Oloba (1998) 9 NWLR (pt. 545) 224; Okene v. Orlando (1998) 9 NWLR (pt. 566) 408; Ngilari v. Mothercat Ltd (1998) 13 NWLR (pt. 636) 626.

The Appellant had said that their evidence of the left over materials were unchallenged. That is not enough unchallenged evidence, without more, cannot constitute sufficient proof of special damages. Boshali v. Allied Commercial Exporters Ltd (1961) 2 SCNLR 322; Odulaja v. Haddad (1973) 11 SC 357 NMSL v. Afolabi (1978) 2 SC 79; Onwuka v. Omogui (1992) 3 NWLR (pt.230) 393.

Based on the above this issue is also resolved in favour of the Respondent and that is to say that the special damages and also that concerning the left over materials and tools remain not proven. In conclusion the two issues raised are answered in the affirmative and there being nothing upon which the findings and judgment of the court below could be upset, I dismiss this appeal while affirming the decision of the trial High Court.

I order N30,000.00 costs to be paid to the Respondent by the Appellant.

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Other Citations: (2009)LCN/3193(CA)