Ijebu-ode Local Government Vs Adedeji Balogun (1991)
LawGlobal-Hub Lead Judgment Report
A. G. KARIBI-WHYTE, J.S.C.
I have had little difficulty in deciding this appeal because of the nature of the points argued before us which are common place and replete with earlier decisions of this court.
Before argument, learned counsel to the appellant by motion dated 8th Feb,1990 sought and was granted leave to introduce a new point of law, namely that the judgment of the trial court was a nullity. Learned counsel to the respondent did not oppose the application.
The two issues which will hereafter form the basis of my judgment which are as formulated by learned counsel to the respondents are as follows.
(a) Is there any legal basis for the award of N2,552,108 as general damages to the plaintiff/respondent by the Court of Appeal in substitution for the award of N25 ,000 awarded in that regard by the High Court
(b) Whether or not the judgment delivered in this case by the High Court was a nullity and whether or not it could sustain any appeal to the Court of Appeal”
The above issues were formulated from the grounds of appeal filed and relied upon by the appellant. For ease of reference, I reproduce below the grounds of appeal referred to above.
Ground One
“3 The learned appellate Justices erred in law in basing their decision on facts viz: 20% of contract price of N12.8 million which was not pleaded and which goes to no issue between the parties when pleadings were settled.
Particulars of Error
I. Plaintiff must be held to the case put forward in his pleadings because the object of pleadings is to settle the issues to be tried.
II. The case put forward particularly in paragraph 16 of the statement of claim is that the plaintiff anticipated a net profit margin of 20%. of N2,552,108.00 of the contract on the successful completion of the contract.
III. It is not plaintiff’s case on the pleadings that he anticipated 20% of the contract price put at N12.8 million.
IV. Cases had to be tried on issues specifically pleaded. The issue of 20% of N12.8 million was never raised in the pleadings.
V. Evidence of P.W.1 and P.W.2 are at variance with the averment in the pleadings and should be disregarded because parties are bound by their pleadings.
Ground Two
The sum of N2,552,108.00 as general damages awarded by the Court of Appeal is excessive, not supported by admissible evidence before the court, the basis of the award is misconceived unintelligible and based on wrong legal principles.
Particulars of Error/ Misdirection
I. The principle of law enunciated at pages 596 to 603 in Hudson’s Building and Engineering Contracts 10th Edition by Duncan Wallace was accepted by the Court of Appeal as applicable to the determination of the appeal before the Court of Appeal.
II. The Court of Appeal failed to take into cognisance the requirement at page 602 in Hudson’s Building and Engineering Contracts (supra) which showed that the plaintiff needed to have disclosed before the trial court the internal documents of the plaintiff showing the make up or his original tender prices.
III. The Court of Appeal failed to take cognisance in reaching its decision as to quantum of damages the fact that plaintiff gave no satisfactory evidence on any of the following fact:
(a) “Head Office Overheads” and Profits
(b) Site Overheads
(c) Rises in cost of materials and labour
(d) Loss of Productivity.
Ground Three
Omololu-Thomas, J.C.A., erred in law when he held in his judgment that “the amount of the damage to which the appellant is entitled is N2,552,000, that is 20% of the contract price as aforesaid which he would have made but for breach (Onaga v. Micho) (supra) and not 20% of N2,552,108 as pleaded which is obviously a slip,” when he had not heard parties on the issue whether what was pleaded was a slip or not.
Particulars of Error
The learned Justice of Appeal could not have held that it was a slip without inviting the parties to address him on that issue and no such invitation was extended to the parties in that regard.
Ground Four
The Court of Appeal erred in law in entertaining an appeal upon a judgment which was a nullity on the face of the record.
Particulars of Error
The unamended provisions of Section 258(1) of the 1979 Constitution which is applicable in this case requires that judgment in a case must be delivered within 3 months after the final addresses by the parties.
II. Final addresses were concluded on the 17th May, 1983 and the case was adjourned for judgment.
III. The Statutory 3 months period would have expired on 16th August, 1983.
IV. On the 27th July, 1983 the trial court invited the parties purported to request them to address the said court further on certain issues framed by the court, which issues were not genuine independent issues but sham issues to secure an illegal extension of time outside the constitutional period within which to deliver the judgment.
V. The further addresses were given on 4th August, 1983.
VI. Reserved judgment was then given on 21st October, 1983.
Reliefs Sought From The Supreme Court Setting aside the judgment of the Court of Appeal and/or dismissal of the plaintiff/respondent’s claims.
The appeal to this court is against the judgment of the Court of Appeal, Ibadan Division delivered on the 8th June, 1988. The Court of Appeal, on that date reversed the judgment of Odunsi, J., of the High Court Ijebu-Ode delivered on the 21st October, 1983.
The learned Judge had entered judgment in favour of the plaintiff, the respondent in this appeal, declaring as follows –
(a) that the letter written by the 1st defendant’s secretary to the plaintiff dated 4th February, 1980 is void to the extent of its inconsistency with the decision of the 1st defendant at its meeting of the 1st February, 1980 on the award of the lta-Osu Market Contract to the plaintiff.
(b) that 1st defendant’s letter dated 2nd July, 1980 purporting to revoke the Contract in writing dated 11th February, 1980 made between the 1st defendant and the plaintiff for the construction of Ita-Osu Market complex is wrongful and constitutes a breach of contract.
(c) the 1st defendant shall pay to the plaintiff damages totaling N43,433.23, whereof the sum of N18,433.23 and N25,000 represent special and general damages respectively.
(d) the plaintiff is deemed to have abandoned its claim for an order for special performance of the contract since it led no evidence on that claim; rather its counsel elicited evidence under cross-examination to the effect that the contract had been awarded to another company. That head of the plaintiff’s claim is therefore dismissed.
(e) the claim against the 2nd defendant is dismissed in its entirety.”
The facts which led to the litigation resulting in the above declarations arose from the contract to build the lta-Osu Market Complex in Ijebu-Ode. Plaintiff is a Building Contractor. An advertisement in the Daily Times Newspaper, on the 27th December, 1979 invited tenders for the construction of lta-Osu Market, in Ijebu-Ode. Plaintiff applied, and was supplied with the Bill of Quantities and other relevant documents. Plaintiff tendered for the construction of the Ita-Osu Market in the sum of N12,760,540.99 and was awarded the contract in a letter dated 4th February, 1980 from the consulting Architects, to the appellant, Afolabi Kuku Associates. Plaintiff a week thereafter signed a formal document with the appellant on the 11th February, 1980.The respondent claimed and the learned trial Judge found that on the instruction of the consulting Architects he mobilised men, materials and machines for the formal turning of the first sod on the 12th February, 1980. Respondent claimed to have made advance payments for building materials, cleared part of the site, erected sheds, negotiated insurance policy and approached the National Bank of Nigeria Ltd., for a loan for the project.
During the period of the tender, respondent intimated the 1st defendant that he was arranging with a Brazilian Company – Certia Commiercio Exportacase Importaca of Sao Paulo, hereinafter referred to as CERTIA, to undertake the execution of the contract as a joint venture.
Soon after the signing of the Agreement on the 11th February, 1980 there appear to have been some misunderstanding not traceable to the events leading to the contract. The turning of the first sod scheduled for the 12th February, 1980 was postponed indefinitely. Respondent wrote to the appellant in a letter dated May 27, 1980 complaining that appellant had failed to reply to the letter conveying inter alia, the terms on which the National Bank of Nigeria Ltd., was prepared to grant him a loan of N2.5m. On its own part; appellant on the 23rd June, 1980 wrote to the respondent complaining of the non-compliance by the respondent with certain fundamental terms of the contract and stating that it was prepared to wait patiently till 30/6/80 for the joint venture to regularise all irregularities. In its reaction to this letter, respondent informed appellant that the letter of the 23/6/80 had been forwarded to his solicitors for consideration.
The next episode began with a letter dated 2nd July, 1980 written by the appellant terminating the contract with the respondent on the ground that the respondent had failed to perfect the conditions of the award of the contract. On the 13th August, 1980, respondent, as plaintiff, issued a writ of summons against the 1st defendant, now appellant, claiming from him, as subsequently amended, as follows-
- Declaration that the defendant’s letter dated 2nd July, 1980 purporting to revoke the contract in writing dated the 11th February, 1980 made between the defendant and Messrs. Adedeji Balogun & Co. Ltd., for the construction of Ita-Osu Market complex valued at N12.8 million is wrongful, improper and constitutes a breach of contract. By an amendment of the statement of claim on the 11th April,1983 to include (1)(b) that the letter written by the 1st defendant’s secretary, to the plaintiff dated 4th February, 1980 is void to the extent of its inconsistency with the decision of the 1st defendant at its meeting of the 1st February, 1980 on the award of the Ita-Osu Market contract to the plaintiff.
- An Order for the Specific performance of the said contract.
- N3,000,000 (Three Million Naira) special and general damages for breach of the said contract.
On the application of the 1st defendant, Alhaji M. O. Owodunni, was joined as 2nd defendant to the action on the 8th September, 1981. Neither the plaintiff nor the 1st defendant made any claim against the 2nd defendant. Pleadings were filed and served. Both parties led evidence in support of their claim and defence. 2nd defendant gave evidence in his own behalf but called no witnesses.
On the 3rd May, 1983, the first of the addresses by counsel was delivered. On the 17th May, 1983, learned counsel to the plaintiff concluded his address. The case was adjourned for judgment to the 30th June, 1983. Judgment was not delivered on the 30th June, 1983. On the 27th July, 1983, the learned trial Judge requested learned counsel to the parties address him further on the following issues formulated by him suo motu.
- Whether no case had been made out against the 2nd defendant to warrant his being joined as a defendant at the instance of the 1st defendant. The 1st defendant’s counsel is to reply to this.
2 If the contract was not awarded to the plaintiff alone, as argued by the 1st defendant, counsel to 1st defendant should address further on Exhibit BBB wherein the 1st plaintiff witness is referred to as the contractor.
- If the contract was not awarded to the joint venture made up of the plaintiff and Cotia, plaintiffs counsel should address the court as to why plaintiffs Administrative Manager wrote Exhibit Y to the 1st defendant, “on behalf of the joint venture.”
- As the plaintiff had no knowledge of Exhibit XX when he filed his action, can he now take advantage of that document which he says differs from Exhibit R as to the person or body to whom the contract was awarded Plaintiffs counsel should address the court further on this.
- The first two issues were directed at learned counsel to the 1st defendant, whereas issues 3 and 4 were directed at learned counsel to the plaintiff. After those addresses on the 4th August, 1983, the learned Judge delivered his judgment in favour of the plaintiff on the 21st October, 1983.
Plaintiff was dissatisfied with the judgment and appealed against the award of damages to the Court of Appeal. 1st defendant did not cross-appeal on any ground but did in fact file a respondent’s notice seeking to vary the award of N25,000 general damages awarded to the plaintiff. Accordingly in the Court of Appeal, the only issue for determination was in respect of the damages awarded by the learned trial Judge.
Plaintiff/appellant filed six grounds of appeal in the Court of Appeal. Before hearing of the appeal, grounds 5 and 6 were struck out. Also learned counsel to the 1st defendant/respondent, having conceded that appellant was entitled to the award of damages made to it by the trial Judge, withdrew the respondent’s notice seeking to vary the award of N25,000 general damages, which was accordingly struck out.
The only issue left to be decided therefore was the appeal in respect of general damages of N25,000, Chief Afe Babalola, S.A.N., for the plaintiff/appellants relied on his brief of argument and submitted that the learned trial Judge was in error to have taken into consideration that the 20% net profit expected from the contract included the share to the firms Cortio and Delphos who were to execute the contract as a joint venture. It was submitted that on the evidence, which the trial Judge rightly accepted, and correctly found that the contract was between appellant and the 1st respondent. The learned Judge was therefore not entitled to make an ex curia examination of Exhibit S, and speculate as to the parties entitled to a share in the profits. Counsel cited and relied on Onibudo v. Akibu (1982) 7 S.C.60; Owe v. Oshibanjo (1965) 1 All NLR 72. Learned counsel relying on Obere v. Eku Baptist Hospital (1978) 6-7 S. C.15 argued that having found that the contract was wrongfully terminated, and having wrongly assessed the damages the Court of Appeal has the power to review the damages awarded. It was submitted that the learned trial Judge was wrong to have held that the amount of profit expected was not certain, when the evidence of the profit of 20% was uncontroverted.
Finally learned counsel submitted that loss of profit being anticipated future loss is a general damage which had not already crystallised and not special damages – Ekpe v. Fagbemi (1978) 3 S.C.209; Onaga v. Micho & Co. (1961) 1 All NLR 324; (1961) 2 SCNLR 101; Obanor v. Obanor (1976) 1 NMLR 39 were cited and relied upon.
Mr. Osidipe learned counsel to the respondent conceding that there was evidence of P.W.1 and P.W.2 that plaintiff/appellant was claiming 20% of the contract price, but submitted that the claim was a special and extraordinary not within the contemplation of the parties at the time the contract was signed. He submitted that the claim was a special damage to be strictly proved. In his view a claim for loss of profit represents a loss which has crystallized and a special damage. The cases of Monarch SS v. Karlshamns v. Oljefabriker (1949) A.C.196; Perestrello v. United Paint Co. (1969) 1 WLR 570; West African Shipping Agency Nig. Ltd. v. Musa Kalla (1978) 3 S.C.21 at p.32 were cited in support.
Learned counsel argued that because appellant failed to plead the amount as 20% of the contract price, respondent has no notice and could not be expected to lead evidence in rebuttal. It was also submitted that having not been pleaded, evidence of the 20%’, profit would go to no issue – See Akinloye v. Eyiyola (1968) NMLR 92 at p. 95. Counsel further submitted that the trial Judge was right to have taken into account the share of profit that should go to the other two firms in the Joint Venture Agreement.
(Exh.S).
In consideration of the submissions of counsel the Court of Appeal referred to and accepted the findings of fact by the trial Judge which remain unchallenged, since there is no appeal against any of them. Now turning to the subject matter of the appeal the Court of Appeal stated as follows –
“The claim of N2,851,700 as general damages and the award of only N25,000.00, thereof is now the subject-matter of this appeal. Special damages are not our concern here in this appeal, and they will be treated as such” – See pp. 328-329.”
The Court of Appeal referred to the award of general damages by the learned trial Judge and held that he was clearly in error when he proceeded to award N25,000 as damages for the reasons he advanced.
In awarding N25,000 as general damages to the plaintiff, the learned trial Judge held that
(i) the amount which plaintiff would have realised as profit could not be stated with certainty.
(ii) Plaintiff would have executed the contract as a joint-venture with Cortia and Delphos, both of who would have been entitled to share in the net profit of the contract.
(iii) Plaintiff alone claims the same percentage for itself as a result of the breach of the contract agreement.
(iv) the breach occurred within 20 weeks of the signing of the agreement, for a work which has to be completed over a period of 120 weeks from the date of the signing of the agreement.
(v) the award of N25,000 (twenty-five thousand naira only) to the plaintiff as general damages was reasonable in the circumstances.
In rejecting these reasons as irrelevant, the Court of Appeal in its judgment pointed out that
(a) the contract was between appellant and the 1st respondent, and not with the third parties Cortia and Delphos.
(b) the sharing of the anticipated profit was not between the appellant, Cortia and Delphos, and this was not an issue before the learned trial Judge.
(c) the profit which appellant would realise from the contract was established with certainty, because the evidence of P. W.1 and P. W.2 on the issue remained uncontroverted, and the evidence of P. W.2 who was cross-examined was not shaken.
The Court of Appeal referred to paragraphs 16, 18 of the statement of claim and the evidence of P.W.1 and P.W.2 and accordingly held that “both on the pleadings and evidence led in court, that the appellant pleaded the sum of N2,851,700 as general damages and explained that it represented the profit of the contract price.”
Referring to the award of N25,000 as general damages by the learned trial Judge, the court below held that it was based on a wrong principle that the learned Judge took irrelevant factors into account, leaving out some relevant ones – Agaba v. Otobusin (1961) 1 All NLR 299; (1961) 2 SCNLR 13; Shodipo & Co. Ltd. v. Daily Times of Nigeria Ltd. (1972) 11S.C. 69 406 were cited in support of the power of the Court of Appeal to interfere with the award of damages.
Relying on Hudson’s Building and Engineering Contract page 5% for the principles for the assessment of damages in cases of this nature, that the measure of damages will be the loss of profit which he would otherwise have earned, and citing Ukoha & Ors. v. Okoronkwo (1972) 5 S.C. 260 and Onaga v. Micho & Co. (1961) 1 All NLR 324;(1961) 2 SCNLR 101 where the general damages, were based on 10% and 20% respectively on the profit of the contract price.
The award by the trial Judge of N25,000 naira as general damages was set aside and in its stead an award of N2,552,108 (two million, five hundred and fifty-two thousand. one hundred and eight naira) as general damages was substituted.
It is this award that appellant is challenging before us.
I have already set out in this judgment both the grounds of appeal and the issues for determination formulated by counsel to the appellant, adopted by counsel to respondent and relied upon for the argument of this appeal.
I consider it necessary to begin with the second of the issues for determination. On the resolution of the second issue depends whether the appeal could be determined on its merits. The second issue is founded on ground 4 of the grounds of appeal and is concerned with the interpretation of a contravention of this part of section 258(1) of the Constitution 1979, which prescribes that “every court established under this constitution shall deliver its decision in writing not later than 3 months after the conclusion of evidence and final addresses….”
This is the part of section 258(12) of the Constitution 1979 relied upon by the appellant. The contention of the appellant is that the judgment delivered in this case by the learned trial Judge on the 21st October, 1983 was delivered more than three months from the conclusion of evidence and final addresses, and contravened section 258(1) and therefore a nullity. Accordingly, the judgment of the Court of Appeal is equally a nullity. The decisions of this court in Ifezue v. Mbadugha & Anor. (1984) 5 S.C. 79; (1984) 1 SCNLR 427; Odi & Ors. v. Osafile & Anor. (1985) 1 NWLR (Pt. 1) 17, Anyaoke v. Adi (1985) 1 NWLR (Pt. 2) 342; Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt. 58) 539 were cited and relied upon for the submission. Learned counsel to the appellant argued that final addresses were concluded in the High Court on the 17th May, 1983, and the case was adjourned to 30th June, 1983. It was submitted the period of three months from final addresses expired on the 16th August, 1983. The record of proceedings shows that without delivering judgment on the 30th June, 1983, the learned Judge suo motu invited counsel on both sides to address him further on the issues formulated by him on the 27th July, 1983.This further address was not concluded until the 4th August, 1983. Judgment was delivered on the 21st October, 1983.
Learned counsel to the appellant conceded the power of the trial Judge to request counsel before him to address him further on any issues before him, but submitted that such further address or addresses must be in respect of issues required for a just adjudication of the matter before it and not hitherto covered in previous addresses of counsel. The cases of Odi & Ors. v. Osafile (supra), Harold Sodipo v. Lemminkainen OY & Anor. (1985) 7 S.C.492; (1985) 2 NWLR (Pt. 8) 547 were cited and relied upon.
Construing the meaning of the expression “final addresses,” learned counsel relied on the construction of the expression by Obaseki, J.S.C., in Sodipo v. Lemninkainen Oy & Anor. (supra) where it was stated as follows-
“The law is well settled that when the learned trial Judge raised an issue suo motu, he must invite addresses from counsel on both sides before pronouncing on the issue. In such circumstances, the addresses delivered by counsel displace the “previous addresses” as final address.”
Learned counsel to the appellant further submitted that the issues formulated suo motu by the learned Judge on the 27th July, 1983 in respect of which counsel were invited to address him were not independent issues which were not in the contemplation of the parties during the initial addresses. It was argued that the issues had already been adequately covered in the initial addresses of counsel, and that the further address were repetitions of the addresses concluded on the 17th May, 1983.The further addresses were therefore a mere sham designed to enable extension of time beyond the period allowed by the Constitution.
Accordingly the addresses concluded on the 17th May, 1983 remained the final addresses in this case and the judgment delivered after the 16th August, 1983 and on the 21st October, 1983, were in contravention of section 258(1) of the Constitution and therefore a nullity. Similarly the judgment of the court below which was founded on such a judgment is also a nullity.
Chief Afe Babalola, S.A.N., appeared for the respondent. In his reply in his brief learned senior counsel attacked the ground of appeal on the ground that it is incompetent. Learned senior counsel submitted that it is the judgment of the trial Judge that is described as a nullity, and that the court below is criticised for not adverting to that fact when there was no appeal before it on that ground. It was submitted that the. Court of Appeal has no jurisdiction to grant any relief which was not asked for. Learned senior counsel cited in support Abdukareem v. Incar Motors (1984) 10 S.C. 1 at p.12; Kuti v. Balogun (1984) 1 SCNLR 372 at p.385.
Although the proposition relied upon is well settled, it does not enure to sustain the exercise of jurisdiction where non exists. Thus where in fact the court has no jurisdiction with respect to a matter before it, the active support or ignorance or silence of the parties to the fact cannot vest the court with the requisite jurisdiction which is the essential pre-condition to the exercise of judicial powers. I therefore cannot accept the submission of Chief Afe Babalola, S.A.N., that because the complaint of want of jurisdiction was not before the court below, which also did not advert to the fact, the complaint is not now valid. A point of want of jurisdiction is fundamental to the adjudicatory process. Hence the issue ought to, and can be raised by the court suo motu even where the parties have failed to do so. – See Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508.
I agree entirely with Chief Afe Babalola, S.A.N., that the Court of Appeal, and indeed this court can entertain an appeal against a judgment which is a nullity. This follows inexorably from the proposition that a judicial act which is void and a nullity I and incurably bad, and does not strict sensu require an order of court to set it aside. It is generally regarded as a valid act, until set aside, by an order of court, because it is the exercise of judicial powers of the Constitution of the court. Hence it is equally necessary in order to declare the correct position that is that the judicial act is void, to invoke the exercise of the judicial powers of the Constitution. The courts established under the Constitution have the undoubted powers to make such a declaration and have always done so – See Ifezue v. Mbadugha (supra); Anyaoke v. Adi (supra) and many other cases. In these cases and in the instant case the courts are exercising the jurisdiction to interprete the provisions of section 258(1) of the Constitution, 1979.
I however, do not agree with the view of Chief Afe Babalola, that ground 4 is an invitation to this Court to exercise appellate jurisdiction over the judgment of the High Court. That this court cannot exercise jurisdiction over the judgment of the High Court is a provision of S.213(1) of the constitution 1979. – See Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) 546; Uhunmwangho v. Okojie (1989) 5 NWLR (Pt 22) 471. But the issue in ground 4 is that the Court of Appeal lacked jurisdiction because there was no judgment before it over which it could have exercised jurisdiction. There is no doubt that if the facts relied upon by the appellant could be interpreted in the manner suggested by counsel, and this in his favour, there would have been no valid judgment subject matter of appeal to the Court of Appeal. – See Ifezue v. Mbadugha (supra). Thus the issue is still whether the Court of Appeal lacked jurisdiction to hear and determine the appeal, before it. And that it was in the light of the facts wrongly to exercise jurisdiction.
It was submitted that the issue of jurisdiction now being canvassed was not canvassed in the Court below, and that appellant having approved of the judgment and relied on it, is estopped and cannot be heard to challenge its validity. I do not think this contention is juridically sound. I have already pointed out that parties cannot by their conduct vest jurisdiction in the court where none exists. Hence, the conduct of the appellant in approbating the exercise of jurisdiction where none existed cannot constitute an estoppel.
It is well settled that the issue of lack of jurisdiction is one which can be raised at any stage of the proceedings, and indeed even on appeal. This is because where it succeeds, it disposes of the matter in limine without the necessity of further proceedings.
It seems to me from the facts of the appeal before us that appellant’s principal complaint is that the final addresses of the parties at the trial was on the 17th May, 1983 whereas respondent contends that the final addresses were on the 4th August, 1983. It is not disputed that judgment of the trial Judge was delivered on the 21st October, 1983. Learned Counsel to the appellant has refused to recognise the validity of the exercise of the powers of the trial Judge to formulate issues he regards as obscure to the parties for further addresses. The issues formulated on the 27th July have been regarded by learned counsel to the appellant as a sham, designed to circumvent the mandatory constitutional provision requiring the delivery of judgment within three months of the conclusion of evidence and final addresses. Accordingly the judgment delivered on the 21st October contravened the provision of S.258(1). Chief Afe Babalola’s contention which seems to me consistent with the decided cases is that the final addresses were made on the 4th August, and the judgment delivered on the 21st October, was within the period of three months prescribed in section 258(1).
I have already reproduced the relevant part of section 258(1) in this judgment. It is important to appreciate that the governing expression in this part of the section is not later than 3 months after the conclusion of evidence and final addresses” The expression “not later than 3 months” would seem to me to follow the expression “after the conclusion of evidence and final addresses.” Thus in determining the issue whether the judgment was delivered “not later than 3 months,” it must be reckoned from the date of the “conclusion of evidence and final addresses.”
The earliest reported decision on the construction of the expression is Taylor v. Methodist Church (1986) 4 NWLR (Pt.34) 136. This was a decision adjourned for judgment first on the 31/10/79. Final addresses in the appeal were concluded on the 22/8/79. Judgment was not delivered on 31/10/79, but was delivered on 28/3/80, a period of more than three months from the conclusion of addresses. The judgment was declared a nullity, being in contravention of S.258(1) – See also Emenimaya v. Okorji (1987) 3 NWLR (Pt.59) 6.
The point of disagreement in this case is where the learned Judge after adjourning for judgment on May 17, 1983 considered it necessary to invite counsel to address him on 27th July, 1983 on certain issues formulated by him. The issues so formulated by him have been described as a sham designed to circumvent the constitutional provision of delivering judgment within 3 months. It was also submitted that the issues were repetitions of matters in respect of which submissions were made.
I do not regard these criticisms of the formulation of the issues by the trial Judge as fair. I have already summarised the issues in this judgment. The first two issues were directed at the learned Counsel to the 1st defendant seeking to explain why no claim have been made against the 2nd defendant joined by them, and an explanation for their contention that the contract was not awarded to plaintiff alone. Issues 3 and 4 were directed to plaintiff seeking clarification as to whether the contract was not awarded to the joint venture, and as to whether plaintiff can take advantage of a document.
These are matter not adequately touched in earlier address and in respect of which learned counsel made elaborated and illuminating addresses. It is in this circumstance difficult to accept the contention that the issues formulated were irrelevant and contrived to gain time and to avoid contravention of section 258(1)
I consider it the undoubted exercised of his discretion in the administration of justice for a Judge who is seissed with a case, and is confronted with the resolution of imminent issues requiring clarification to raise such issues even suo motu in the interest of justice and call for further addresses by counsel on the point. The duty of the trial Judge is to do justice between the parties. Justice cannot be more obviously and appropriately done than by the clarification of issues obsure to the Judge through the assistance of the parties responsible for the obfuscation. I do not consider that any other than the trial Judge is a better Judge as to what issues are confusing, confused or obscure in the matter before him. I agree entirely with the view of Bello, C.J.N. in Awoyale v. Ogunbiyi (1985)2 NWLR (Pt. 10) 861, when he said,
“The question whether further guidance is necessary can only be determined by the court confronted with such a situation.
So it is in this case.
I also refer to what I said in the same case at p.881 and which I think is appropriate to this situation. I stated the position thus-
“Where a court exercises its discretion in controlling the determination of a case before it, this court can only interfere where the exercise of such discretion would result in injustice to one of the parties. It is not sufficient merely to contend that the exercise of such discretion was in the circumstances unnecessary where no injustice resulted thereby. It is sufficient if the Court believed, even wrongly, that it required further addresses, from the counsel to clarify some doubts it had.”
The decision to invite counsel to address further in respect of obscure issues in an exercise of discretion if validly exercised cannot be inferferred with. There has been a valid exercise here. The right of the trial Judge to require counsel to address him further on any points in which he has doubts is well accepted and cannot be lightly challenged. It is an unjustified challenge of the integrity of the Judge. Unless there are valid grounds suggesting the contrary the exercise of discretion remains final. The crux of the contention of appellant is that the judgment was delivered more that 3 months from the final address. Having held that the learned Judge had the right to raise issues obscure to him; requiring clarification, learned counsel to the appellant having not suggested that the exercise of discretion has resulted in injustice to them, it seems to me right to hold that the addresses on such issues would be regarded as the final addresses.
The expression “final addresses” was construed in Sodipo v. Lemmninkainen Oy (1985) 2 NWLR at (Pt.8) p. 547, to mean the last or ultimate speech or submission made to the Court in respect of the issue before it, before the delivery of judgment. It is the last address before the delivery of the judgment. See also Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt. 58) 539.
Thus to determine whether there is a contravention of section 258(1) it will be necessary to count the period of 3 months from the date of the judgment on the 21st October, 1983 or from the date of the final address on the 4th August, 1983 or from the date of the final address to the date of judgment. In either case the judgment before us falls well within the period of 3 months prescribed under the Constitution. Accordingly the judgment challenged was delivered within 3 months from the final address of the parties and did not contravene the provision of section 258(1) of the Constitution 1979. The judgment is therefore valid, and the Court of Appeal validly exercised its jurisdiction in respect of the appeal to that court.
I shall now turn to the first issue which deals with the consideration of damages in the Court below. And this is whether there is any legal basis for the award of the Court below of N2,552,108 as damages to the Respondent in substitution of the sum of N25,000 awarded by the trial Judge. This issue is covered by ground 1,2,3 of the grounds of appeal.
Learned Counsel in the brief of argument filed has submitted that the case of the Respondent as pleaded in his statement of claim is that “the Plaintiff anticipates a net profit margin of 20% of N2,552,108 of the contract on the successful completion of the contract and would at the trial call expert evidence in support of this averment” (See para.16 of the statement of claim). Learned counsel conceded that consistent with the other paragraghs of the statement of claim and the oral and documentary evidence adduced, the averment in paragraph 16 could be a typographical error, He however, did not accept that the pleading as a whole was not a slip as held by the Court below. The Court below was therefore wrong to base the award damage of 20% of the contract price, and not 20% of the sum of N2,552,108 as was pleaded. It was submitted that the court below should have called for and heard arguments on the issue before arriving at such a decision. The court below it was submitted, relied on its own views on the matter and not on any evidence before the court. The Court below was merely speculating. There was therefore no basis for the award of N2,552,108 made by the Court below.
Learned Counsel submitted that the evidence led by the Plaintiff in respect of the 20% of the contract price went to no issue as there was no pleading in support.
Alternatively, learned counsel submitted that even if it was conceded that there was evidence in support of the loss of profit pleaded, the court below was wrong to have awarded N2,552,108 as loss of profit was in excess of the loss of profit suffered and claimed by the Respondent as pleaded. Finally, it was submitted relying on Hudson’s Building and Engineering Contracts, 10th Ed. at p. 596, that the Respondent did not establish the profit claimed because of the failure to tender at the trial or at the Court below the internal documents showing the make up of the original tender prices. The Court therefore had no materials on which to determine the amount of damages suffered. – Onibudo v. Akibu (1982) 7 S.C. 60 at p.62; Lar v. Stirling Astaldi Nigeria Ltd. (1977) 11-12 S.C. 53 at p.63 were cited and relied upon.
Chief Afe Babalola, S.A.N. in his reply referred the court to paragraph 13 of the record of proceedings where the error was admitted that the claim is for 20% of the contract price. Learned Counsel then applied to amend the statement of claim as indicated in respondent’s brief of argument. Mrs. Kuforiji for the appellant opposed the amendment. I do not see why the amendment of paragraph 16 of the statement of claim should not be granted. There is abundant evidence from paragraph 8 of the Statement of Claim, oral testimony of plaintiff and his witness at the trial that the claim is for 20% of the contract price. It is obvious from the address of learned Senior Counsel to the Appellant, the Hon. Attorney-General of Ogun State, that he so understood the claim of the plaintiffs. It is also clear from the judgment of the Court of Appeal that this was the way it was understood. No further evidence is required to effect the amendment. It is therefore fit and proper to grant amendment. It will therefore be preposterous to want the error remain uncorrected. Paragraph 16 of the statement of claim which avers 2% (N2,552,108) of the contract is therefore hereby amended as follows-
“The plaintiff anticipates a profit margin of 20% of the contract price (Amounting to N2,552,108) on the successful completion of the contract.”
This amendment will bring the pleading in line with the evidence and does not prejudice the position of any of the parties in the litigation. The averment in the pleading is inconsistent with the averment in paragraph 8, and the evidence as representing the contract sum of N12,760,540.99 I have already in this judgment referred to the reasons given by the Court below for rejecting the award of N25,000 as general damages to the respondent. I agree entirely with the reasons and with the submission of Chief Afe Babalola, S.A.N. that the Court below was in the circumstances perfectly entitled to proceed as it did.
Learned Counsel to the Appellant has submitted that the court below had no materials on which to base the award of N2,552,108 as general damages. This is notwithstanding the concession that respondent is entitled to damages. I do not share this view.
I agree entirely with the Court of Appeal that the N25,000 awarded as general damages was based on a wrong principle of law, and that the trial Judge took irrelevant factors into account.
The contention of learned counsel to the Appellant has always been that Respondent did not establish the loss claimed and was therefore not entitled to the damages awarded, is erroneous. The claim is for general damages which loss is inferred by law from the breach.
It seems to me that learned counsel to the appellant has fallen into common confusion in claims of this nature of the difficulty in making a clear distinction between general damages and special damages. Although this court has observed in Maiden Electronics v. A.-G., (1974) 1 All NLR 179 that it is improper in cases of breach of contract to categorise damages by the use of the words “general” and “special”, the distinction though misleading and likely to confuse is still made to determine the nature of the loss following from the breach. General damages are such as the law will presume to be the direct natural or probable consequence of the act complained of. Special damages are such as the law will not infer from nature of the act, and do not follow in ordinary course but are exceptional in character. See Akinfosile v. Mobil (1969) NCLR 253. The common error is that the two are mutually
exclusive. The assumption is that that which is not general damages must be special damages. The expressions are usually contrasted; kept separate for better elucidation of the nature of the damages flowing from breach of contract.
The expression is used to denote both liability and proof. For instance in Prehn v. Royal Bank of Liverpool (1870) L.R.5 Ex.92; Martin B, at pages 99-100 stated the position thus-
“General damages … are such as the jury may give when the Judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of the reasonable man … special damages are given in respect of any consequences reasonably and probably arising from the breach complained of.”
Special damage denotes those pecuniary losses which have crystallized in terms of cash and value before trial. In cases of breach of contract assessment of damages is calculated on the loss sustained by the injured party which loss was either in the contemplation of the contract or is an unavoidable consequence of the breach – See Shell B.P. v. Jammal Engineering Ltd. (1974) 4 S.C.33; 1 All NLR (Pt. 1) 542.
The appeal before us is limited to the issue of general damages. This is to say the damage resulting from the loss flowing naturally from the breach and is incurred in direct consequence of the violation. There is no appeal against liability for the breach of contract. The fact that the 1st defendant is in breach of contract with the plaintiff is not disputed.
Chief Babalola, S.A.N., has submitted and I agree with him that there is evidence on which the Court of Appeal relied upon to find that the plaintiff is entitled to 20% of the contract price as the profit expected from the contract violated by the 1st defendant.
There was the evidence of the plaintiff and that of his witness that plaintiff was expecting nothing less than 20% of the contract price on completion of the contract, if it was not breached by the 1st defendant. There was also evidence of profits in earlier contracts where the profit realised was not less than 25% of the contract price. Where there is evidence to support a claim, as here, which remains unchallenged or uncontroverted by the other party, the court is bound to accept the evidence in support of the claim. – Incar Nigeria Ltd. v. Adegboye (1985) 2 NWLR (Pt.8) 453 at 460. Obanor v. Obanor (1976) 2 S.C.1 at pp. 4-6. There was no contrary evidence challenging these claims, and the cross-examination of the witnesses did not affect the credibility of the witnesses or weight to be attached to the evidence. In the circumstances, the Court below was right in accepting the 20% claimed as the profit which plaintiff could have made if he had successfully executed the contract without interference. The trial Judge had all evidence before him and could have found for the plaintiff on the evidence. The court has the power to come to the decision as the Court of trial. – See S.16 Court of Appeal Act, 1976.
Hence, the loss sustained by the breach as the unavoidable consequence of the breach was in contemplation of the parties at the time of the contract. Thus the amount of damages to be paid in respect of the breach is the amount it will entail to put the respondent wronged and aggrieved in the position he would have been if there had not been any breach. – See Idahosa v. Oronsaye (1959) 4 F.S.C.166; (1959) SCNLR 407. This is the measure of damages.
In the instant case it cannot be seriously disputed that the parties had foreseen that if the contract was terminated by its breach the plaintiff will lose the profit he would have made if he had been allowed to execute the contract successfully – See Swiss-Nigeria Wood v. Bogo (1971) 1 U.I.L.R. 337; (1972) 1 All NLR (Pt.7) 433.
There is no doubt that the purpose of awarding damages to the aggrieved is to restore him to the situation so far as money can do so, he would have been if there had been no breach. The Court of Appeal applied the correct principles and was therefore right to have set aside the general damages awarded by the trial Judge, and relying on the materials before the Court restored the plaintiff to the position he would have been, if there had been no breach. – See Onaga v. Micho & Co. (1961) 1All NLR 324; (1961) 2 SCNLR 101; Ukoha v. Okoronkwo (1972) 5 S.C. 260. The measure of damages is the loss inevitably and unavoidably flowing from the breach.
The appeal of the appellant accordingly fails and is dismissed. The judgment of the Court of Appeal is hereby affirmed.
Appellant shall pay costs assessed at N500.00 to the plaintiff/respondent.
Other Citation: (1991) LCN/2480(SC)