Olalomi Industries Ltd. V. Nigeria Industrial Development Bank (2001)

LawGlobal-Hub Lead Judgment Report

OKUNOLA, J.C.A.

This is an appeal against part of the judgment of A. O. Belgore, J., of the High Court of Kwara State sitting at Ilorin dated 31st day of May, 2000 wherein the court dismissed the plaintiff (now appellant’s) claim in its entirety.

The facts of this case briefly put were as follows:

The appellant herein, is a limited liability company who promoted carpet manufacturing factory with Headquarters in Offa. The respondent is also an Industrial Bank incorporated as a private company by the Federal Government of Nigeria. The appellant needed money to complete importation of its factory machines and equipment and approached the respondent for loans (see page 70 lines 13-14 of the records). Two loans were granted to the appellant by the respondent. The first was a Term Loan and the other a Working Capital Loan. The Term Loan was secured by a Deed of Loan and Mortgage Agreement (Exhibit 1) (see page 70 lines 7 -10 of the records), the second loan was secured by a Deed of debenture (Exhibit 30); see page 75 lines 8-12 of the record (hereinafter referred to with or without the record).

The appellant applied to the Governor of Kwara State for approval of the Mortgage Transaction in exhibit 1 in line with the Land Use Act, 1978. Approval was granted to the appellant to Mortgage the property on which its factory at Offa is situate to the respondent. The approval document was identified by the PW as the last page of exhibit 1. Original copy of exhibit 1 which he tendered was shown to him under cross-examination and he identified it (see page 70 lines 10 – 13 of the record).

The terms and conditions of the two loan transactions are expressly stated in the two Deeds; exhibits 10 and 30. In addition, the respondent tendered the letter of offer (Exhibit 28) containing the terms and conditions for the second loan, that is working capital loan. The terms and conditions were accepted by the appellant, hence it proceeded further to execute exhibit 30 in favour of the appellant. (See page 70 at the last lines).

The appellant failed to comply with the terms and conditions of the two loans as to repayment. The respondent felt uncomfortable and called for meetings to resolve the production problems of the appellant. The result of this was a decision to second a staff of the respondent to the appellant as Project Manager, in April, 1989 (See page 71, 2nd and 3rd paragraphs). This was in line with one of the terms of offer contained in exhibit 28 whereby the respondent was empowered to second any of its staff if it deemed it necessary to the appellant as General Manager. The appellant initially resisted the Project Manager. The respondent eventually recalled the Project Manager. However, the Project Manager later commenced production and carpets were rolled out. Before the Project Manager could commence production, the appellant sought for further loan from the respondent to procure raw materials and take care of some essentials like outstanding staff salary, outstanding NEPA bills and water rate. A sum of N200,000.00 was made available to the appellant in two installments of N100,000.00 each for those purposes. Meanwhile all the loans advanced by the respondent to the appellant and interest thereon remained outstanding. The Project Manager was recalled in September, 1990 and the factory was handed over to the appellant in full in October, 1990. The Project Manager prepared a handing over note. This was tendered by the appellant and it was admitted and marked exhibit 8 at the trial. (See page 60 line 15 of the record). Shortly after the Project Manager’s recall, the appellant made its first and only repayment to the respondent in the sum of N150,000.00. This was from the proceed of sales left in the appellant’s account by the Project Manager. Thus, the whole set of loans remain outstanding together with interest, save and except the N150,000.00 paid.

This was the position when the appellant took out the writ of summons in an earlier action which was struck out for incompetence. The appellant thereafter filed this action still against the respondent which metamorphosed into the appellant’s claim encapsulate in paragraph 10 of the further amended statement of claim (see page 55 of the record). The appellant made series of allegations of mismanagement against the Project Manager all of which were denied by the respondent. The appellant then claimed for estimated loss of profit and the respondent joined issues with the appellant on all material allegations in its pleadings.

The respondent further counter-claimed for the outstanding loans and interest thereon on the account of the appellant. (See pages 39-40 of the record). The appellant’s further amended statement of claim is contained on page 55 while the respondent’s amended statement of defence and counter-claim is at pages 36-40, the appellant’s amended reply to statement of defence and counter-claim is at pages 41-44 of the record. The action proceeded to trial after a series of interlocutory applications. Oral evidence of the only PW is contained at pages 59-74 and on recall at pages 100-101; while that of the only DW is contained at pages 74-83 and on recall at pages 101-102. At the close of evidence, learned counsel to both parties addressed the lower court extensively on all issues germane to the dispute between them. At the close of addresses by both parties the trial lower court delivered the judgment in the instant case. The court held that the plaintiff’s claim for N521,413,740.00 being an estimated profit fails and the same accordingly dismissed. The counter-claim being filed on 25/6/97 succeeds to the extent of the admission from that date. The court further held that the defendant shall have judgment for the sum of N1,500,000.00 and N510,000.00 plus interest at 10% per annum in respect of the N1,500,000.00 and 14% in respect of the N510,000.00. The interest in both cases shall run from 25/6/97 until the judgment debt is fully liquidated. The declaration sought by the defendant is dismissed in view of the pronouncements regarding exhibits 1 & 30.

Dissatisfied with this judgment each party appealed in respect of different parts of the above judgment. Appellants appealed on four(4) grounds while the respondent also appealed on eight (8) grounds of appeal. We are here concerned with the plaintiff/appellant’s appeal. From the 4 grounds of appeal, the plaintiff/appellant has formulated the following issues for determination in this appeal, viz:

Whether from the evidence before the court the plaintiff has not proved that the plaintiff’s factory could produce as stated by the expert in exhibit 24 grounds 1 and 2. Whether the shortfall in production by the Project Manager is not a loss to the plaintiff ground 3. Whether or not the plaintiff asked for other reliefs other than for loss of profit ground 4.

The learned counsel to the respondent also formulated the following two issues:-

1. Whether the appellant proved that it is entitled to any award for alleged estimated loss of profit.
2. Whether the lower court could grant any other relief to the appellant other than in relation to estimated loss of profit claimed but which failed.

Before dealing with the issues raised in this appeal by the appellant and the respondent, I need to observe that the respondent in the respondent’s brief at paragraph 3.01 raised notice of preliminary objection to the hearing of this appeal, I shall deal first with the notice of preliminary objection before proceeding with the main appeal. The grounds of the preliminary objection are summarised at paragraph 3.01 on page 4 of the records as follows:

i. That the appeal is not supported by any record of appeal.

ii. That the appellant’s notice of appeal is not contained on the record of proceedings urged by the appellant contrary to Order 3 rule 9(d) of the Court of Appeal Rules.

Learned counsel to the respondent urged the court to uphold this preliminary objection and to strike out the purported appellant’s brief, afortiori, the whole appeal for the following reasons:-

‘That the appellant as the party initiating this appeal has the duty to bring before the court the record of appeal from the court below. See Labaran v. Okoye (1995) 4 NWLR (Pt. 389) 303 at 316 and Ajayi v. Omorogbe (1993) 6 NWLR (Pt.301) 512 at 527. That the appellant herein failed to produce any record of appeal. Indeed no reference is made to any page of the record of appeal as containing the appellant’s notice of appeal in the introductory part of the appellant’s brief. The appellant’s notice of appeal is not reflected on any record from the lower court. This is in breach of the mandatory provision of Order 3 rule 9(1) (d) of the Court of Appeal Rules. This rule, contemplates that all appeals shall be supported with a record of appeal; and that such record shall contain documents which include inter alia

“(d) a copy of the notice of appeal …”

The appeal filed by the respondent herein as appellant before this honourable court to which reference is made at page 2, paragraph 1.19 of the appellant’s brief is quite different from this appeal and cannot share the same file with this appeal. It is submitted that this appeal ought not to share the same appeal number with that other appeal. That it is further submitted that the appellant herein cannot rightly rely on or use the record of appeal prepared for the instant appeal. The appellant ought to produce record from the lower court to support its appeal.

It is not in dispute that leave was granted the appellant to appeal out of time. That is the appeal alluded to at page 2 paragraph 1.20 of its brief of argument. However, having obtained leave, the next stage would be to reverse back to the lower court for the record of appeal. Such a record should contain the notice of appeal which by leave of court was deemed properly filed and served. That it is submitted that the failure of the appellant to produce record of appeal such as to incorporate its notice of appeal is fatal to the entire appeal; and renders the appeal inchoate, and hearing of same incompetent.

By way of reply, learned counsel to the plaintiff/respondent submitted as follows:

1. That appeal before the court is CA/IL/6/2001.
2. That there can be only one record in a case at a time (not talking of number of copies).
3. That it is true that the appellant (Olalomi Industries Limited) did not produce any set of record.
4. That the reason for not producing another set of records is that by the time the appellant filed her appeal the record was already produced by the respondent who had appealed much earlier within time without serving the appellant with the notice of appeal until the record of proceedings was served on 21/3/2001.
5. That purpose of providing the record of proceedings to enable the parties and the court to be able to read through the record. This is already achieved as parties have used the record already before the court for preparing their various briefs.
6. That the authorities cited by the respondent apply only where there is only one appeal before the court and no record has been supplied. In such circumstance, no brief can be filed and the appeal cannot take off. The court will not even list the appeal for hearing. This is not the case here.
7. That the notice of appeal of the appellant though not contained in the record before the court because it came after the record has been prepared and distributed, it does not adversely affect any of the parties. The parties and the court are aware of it. Parties have used the notice to formulate issues and do argue their brief. It is already part of the court record which the court is entitled to look into. See Mhambe v. Shidi (1994) 2 NWLR (Pt.326) 321 at 330 (2) Nwanosike v. Udosen (1993) 4 NWLR (Pt. 290) 684 at 693 B-D.
8. That no party or person has been misled by none inclusion. The circumstance of this case does not justify putting fault of not doing so on either the registrar of the court or the party that appealed out of time. Order 3 rule 9 is conditioned on Order 3 rule 8. While the record of the respondent in her appeal was being compiled the appellant who is the respondent in the appeal was not invited for settlement of the record. The provision in the rule is only directive and not mandatory.
9. That the rule does not provide for the consequence of failure to provide separate record of appeal in the circumstance of this case where there already exists a record for the same case:- See Opia v. Ibru (1992) 2 NWLR (Pt. 231) 658 at 692 – 693 for abuse of technicalities in practice.

On the whole, learned counsel to the plaintiff/respondent submitted that the objection of the respondent be overruled and dismissed as the appeal has not been in any way handicapped and the parties’ briefs have been well prepared based on the record.

I have considered the submissions of both learned counsel to the parties on this notice of preliminary objection viz-a-viz the available records and the prevailing law. In my view, the main issue being raised boil down to:

Whether where a judgment gave rise to two appeals one filed by a party and the other filed later by the second party after it has been duly served with the record of appeal in the same proceedings, does the failure to produce another record on the same proceedings by the second party run counter to Order 3 rule 9(1) (d) of the Court of Appeal Rules and vitiate the second appeal which had been properly filed with the leave of the Court of Appeal.

On this only issue, I have considered the submissions of both learned counsel to the parties on this main issue viz-a-viz the records and the prevailing law, I have also gone through Order 3 rule 9(1)(d) of the Court of Appeal Rules upon which this preliminary objection is based. For purposes of clarity I reproduce Order 3 rule 9(1)(d) of the Court of Appeal Rules (hereinafter referred to as the rules) which provide thus:

“The record of appeal shall contain the following documents in the order set out:

(a) the index;

(b) a statement by the Registrar of the Court below giving brief particulars of the case and including a schedule of the fees paid;

(c) copies of the documents settled by the Registrar of the court below for inclusion in the record of appeal in accordance with rule 8 of this order;

(d) a copy of the notice of appeal and other relevant documents filed in connection with the appeal.”

The position in the instant appeal is that the plaintiff/appellant relied on the respondents early records of appeal prepared by the lower court and filed its own appeal separately with leave of court being out of time. The appeal before the court is CA/IL/6/2001 in both cases. Both parties have used the records to prepare their briefs in the two appeals. The notice in the instant appeal was with leave of court filed out of time and outside the records. The parties have used the notice to file their briefs for the appeal.

What then is the position of the appeal under this scenario? The question to ask is the position of an appeal where a copy of notice of appeal is not included in the common record as in the instant appeal?

This issue had come for judicial consideration and determination by our apex court in Francis Adesegun Katto v. Central Bank of Nigeria (1991) 9 NWLR (Pt.214) 126, (1991) 12 SCNJ 1 where it was held that irregularity in the notice of appeal such as one not contained in the record of appeal is waived by taking steps such as filing brief as done by both parties in the instant appeal. It is already part of the records which the court is entitled to look at. See Mhambe v. Shidi (Supra); Nwanosike v. Ndosen (Supra).On the non-provision of separate records for 2 appeals, arising from a record of appeal earlier filed, it can be seen that Order 3 rule 9 is conditional on Order 3 rule 8 of the rules which provide thus:

“1. The Registrar of the court below shall after the expiration of the time prescribed for filing notice of address for service summon the parties before him to:

(a) Settle the documents to be included in the record of appeal;

(b) Fix the amount to be deposited by the appellant to cover the estimated cost of making up and forwarding the record of appeal;

(c) Fix the amount to be deposited by the appellant or secured by bond for the due prosecution of the appeal and the payment of any costs.

2. The said Registrar shall whether any of the parties attend or not, provided that notice has been duly served on those parties who filed an address for service, proceed to settle and determine those matters in accordance with the provisions of rules 9, 10 and 11 of this Order”.

From the above rule, it can be seen that the Court of Appeal Rules have made no provision for the failure to provide separate record of appeal in the circumstance of this appeal where there exists a record for the same case see Opia v. Ibru (1992) 2 NWLR (Pt. 231) 658 page 692 – 693.

In the light of the foregoing authorities, I hold that the objection G of the respondent herein is devoid of merit and it is accordingly overruled as the appeal is not in any way handicapped.

Having dealt with the preliminary objection it is necessary to proceed with the main appeal. Both learned counsel to the parties filed their respective briefs of argument in support of their respective clients’ cases. When this appeal came up for hearing the learned counsel to the appellant Chief P.A.O. Olorunnishola, SAN leading B. S. Jubril, Esq. adopted and relied on the appellant’s brief filed herein on 17/4/2001 and the appellant’s reply brief filed herein on 14/6/2001. Learned SAN urged the court to allow the appeal.

By way of reply, learned counsel to the respondent Mr. Duro Adeyele leading Mr Olusegun Olawoyin adopted and relied on the respondent’s brief filed herein on 1/6/01. By way of further reply Mr. Olorunnisola, SAN said he had nothing to add.

I have considered the issues raised by the appellant for determination in this appeal. I have also gone through the 2 issues raised by 8 the respondent for determination in their brief of argument which but for style amounts to the 3 issues raised by the appellant. However, I have considered the two sets of issues which are similar and the submissions made in their support viz-a-viz the records and the prevailing law. In my view the submissions taken together boil down to one principal issue and a subsidiary issue viz:

1. whether from the evidence before the court the plaintiff has not proved that the plaintiffs factory could produce as stated by the expert in Exh. 24. In other words, whether the appellant has proved that it is entitled to any award for alleged estimated loss of profit.
2. Whether or not the plaintiff asked for or the lower court could grant any other relief to the plaintiff other than for the loss of estimated profit.

In short, the principal issue in this appeal is centred on whether or not the estimated loss of profit in this transaction has been proved and if not, whether plaintiff/appellant is entitled to any other relief becomes the subsidiary issue. Both learned counsel to the parties have extensively dealt with this principal or main issue in their respective briefs as well as in their submissions viva voce before the court. On the main issue, leading counsel to the appellant on pages 3 and 5 of the appellants brief observed that at pages 138 – 139 of the records the trial Judge said that the claim of the plaintiff for N521,413,740 is based on 100% production capacity while he did not believe that the DW1 when he said that 100% production is unattainable at the inception of the factory since he did not offer any explanation for the assertion. Learned counsel to the appellant observed that the trial Judge rightly concludes by saying:

“I really do not know how he (DW1) came to that conclusion. It is no gain saying that the statement in exhibit 24 was based on the expression of the Cormel Ltd., and I accept it.”

Learned counsel to the plaintiff/appellant submitted that the learned trial Judge became confused by asking whether the plaintiff produced at that capacity during the tenure of the Project Manager.

According to learned counsel to the appellant, the assertion of the plaintiff is that because the machinery of the factory were new, all facilities were made available to the Project Manager, yet the Project Manager failed to attain 100% and the Project Manager failed to explain what stopped him from attaining the expected 100%. If there is proof of actual production of 100% there will be basis for examining his handling of the factory. The PW1 went to demonstrate that the only reason why the Project Manager did not make the maximum mark was because the Project Manager mismanaged the factory (See page 71 of trial record). The plaintiff demonstrate that even working on the capital which the Project Manager utilized the Project Manager only produced at 1% while the PW1 who had only working capital available after the exit of the Project Manager was able to produce at 30% and 300% of what the Project Manager produced within the same period (See page 67 of trial record).

Learned counsel to the appellant therefore submitted that what the court should hold is that expert opinion in exhibit 24 is what the factory should have produced but for the intervention of the defendant’s Project Manager who proved himself a reckless and an unworthy and a discredited manager (See page 138 of the trial record). Learned counsel to the appellant submitted that the Project Manager through his ineptitude did not allow the factory to produce as projected for in exhibits 24 & 26. Learned counsel to the appellant in pages 2 & 3 of the appellant’s reply brief urged the court to hold that the plaintiff did prove the special damage for the loss of profit which it would herein make if the Project Manager had made diligent management of the factory. The estimated profit has been rightly stated in exhibits 24 & 25. Learned counsel cited the case of NBCI v. Alfijir (Mining) (Nig.) Lid. (1993) 4 NWLR (Pt. 287) 346 p.365 to back his submission that it is claimable. Learned counsel submitted in conclusion that respondent’s brief failed to meet the points made by the appellants brief and urged the court to allow the appeal.

By way of reply learned counsel to the respondent at pages 5-7 of the respondent’s brief contended that the appellant’s claim is based on exhibit 24 premised on which the PW prepared his exhibit 25. Exhibit 25 was based on 100% capacity production. Although PW agreed that production is subject to many variables such as availability of raw material, work force, power supply, learned counsel to the respondent contended that the PW in exhibit 25 made no allowance for these variables which renders exhibit 25 speculative. Learned counsel submitted that being speculative exhibit 25 cannot be made basis of any award by any reasonable tribunal. Learned counsel further submitted that exhibit 24 merely speaks of production capacity and not the actual production of the appellant’s factory which is the index of profit. It is also the contention of learned counsel to the respondent that if after the withdrawal of the Project Manager who PW alleged disallowed the plaintiff from producing at 100% capacity, the appellant according to him produced at 3% capacity (as against 1% capacity of the Project Manager) wherein lies the claim for gross estimated profit based on 100% capacity utilisation upon which exhibit 26 was prepared by PW.

Learned counsel to the respondent therefore submitted that the content exhibit 26 was highly speculative and cannot assist a reasonable tribunal arrive at a just conclusion based on the foregoing learned counsel to the respondent urged the court to hold that the appellant has failed to prove that it is entitled to any award for alleged estimated loss of profit or any loss whatsoever in the sum of N521,413,740.00 or any sum whatsoever. Learned counsel further submitted that the Supreme Court decision in Trenco (Nig.) Ltd. v. African Real Estate and Investment Co. Ltd. & Anor. (1978) 4 SC 9 cited by the court below was quite apposite and the appellant cannot blow hot and cool.

On the issue of mismanagement alleged against the Project Manager, learned counsel to the respondent contended that the appellant through PW denied that it consented to the respondent taking over the running and management of the factory. The PW further attested that the respondent ran the factory illegally which in effect is, according to learned counsel is to say there is no contract as to running of the factory which in effect is that there is no contract to which any assessment or award can be hinged.

I have considered the submission of both learned counsel to the parties on this principal or main issue viz-a-viz the records and the prevailing law. The arguments of appellant’s counsel boil down to stating that estimated profits had been rightly stated in exhibits 24 & 25 and that it is the ineptitude of the Project Manager that had not allowed the factory produce as projected for in exhibits 24 & 26. He therefore urged the court to hold that the plaintiff did prove the special damage for the loss of profit which he would have made if the Project Manager had made diligent management of the company.

The summary of the respondent’s argument is that the appellant failed to prove that it is entitled to any award for estimated loss of profit.

To resolve which of the two arguments should be proferred a short recourse to the evidence contained in the records as well as the exhibits upon which the claim of the plaintiff is pivoted becomes necessary. In this regard, it is necessary to observe that the appellant’s claim for estimated profit is based solely on exhibit 24, a document issued by Cormel Ltd., who fabricated and installed the plant and machines at the appellant’s factory premises on which the PW prepared his exhibit 25. (Vide pages 67-68 of the record). Exhibit 25 was prepared by PW sometimes after 1992 based on 100% capacity production. PW conceded that the factory had never produced at 100% capacity and the court so found (See pages 73 and 134 of the record).

The PW also conceded that production is subject to many variables such as availability of raw materials, work force, power supply etc (see page 73 of the record). At page 72 of the record under cross-examination PW agreed that the Project Manager settled water rate, electricity bill, workers’ salaries and paid him (PW) his allowances as Chairman. He also agreed that the Project Manager maintained the company vehicles and that profits realised were ploughed back into purchase of raw material for production to continue. This is a confirmation of DW’s evidence at page 77 of the record on production variables. As submitted by learned counsel to F the parties, it is curious to note that the PW made no allowance for these variables in his computation of alleged estimated profit in exhibit 25. In assessing factors of production which will assist profit maximization in any business venture it will be out of tune to equate production capacity with actual production. Profit can be calculated on the latter but not the former. Exhibit 24 merely tells the production capacity of the appellant’s factory. It cannot indicate the level of capacity utilisation. That is the point where the appellant’s argument in support of the principal issue, with respect, missed the point in contention. The submission in paragraph 3.06 of the appellant’s brief that all the facilities were made available to the Project Manager is not borne out of the evidence on record. Indeed, the evidence of the DW is that N200,000.00 further loan in two installments of N 100,000.00 had to be given to the appellant through the Project Manager before production could start at all (see page 76 of the record). The witness was not cross-examined on this point. The evidence remained unchallenged. This goes to prove that all facilities were not in place as alleged. What is more after withdrawal of the Project Manager, who the PW alleged disallowed the plaintiff from producing at 100% capacity; the appellant, according to him produced at 3% capacity. Wherein then lies the claim for gross estimated profit based on 100% capacity utilisation. It was based on this that exhibit 26 was prepared by the pw. In this regard, I hold that the content of exhibit 26 is speculative.

The absence of provision for variables in the compilation of exhibit 25 renders the document a speculative one. In law no reasonable tribunal can rely on speculative documents to make an award.

It would have been a different thing if after assuming full control PW produced at the alleged 100% capacity or near it. There would have been justification for the plaintiff’s claim but this did not turn out to be attainable. While alleging mismanagement, it is obvious from the evidence on record that the N150,000.00 paid (which was the only repayment made by the appellant shortly after the withdrawal of the Project Manager) was from proceed of earning made by the Project Manager. The submission in paragraph 4.04 of the appellant’s brief on money from balance saved into the account before the Project Manager took control of the business is erroneous and a misconception of the facts. The facts are that the appellant had no account with Allied Bank at Ijagbo before the arrival of the Project Manager. The PW’s evidence is that the appellant had account with that bank only at Kano. It was after the Project Manager’s arrival that a current account was opened with that bank at Ijagbo. Then a saving account was opened also at that bank for the appellant and maintained based on the appellant’s Board Resolution at page 72 1st paragraph of the record. It means then that with all alleged production after the Project Manager’s withdrawal, no repayment was made to the respondent by the appellant. In such a circumstance, the alleged mismanagement against the Project Manager is suspect. The Project Manager and PW were jointly in control for the 18 months the Project Manager was at the factory. This is vindicated by the evidence on record for and against. At page 67 (at the 3rd to the last line), PW states “We regain full control of the factory from the Project Manager. …” (emphasis mine).

This suggests that there was hithetto joint control. This is corroborative of the evidence of the DW at page 76 (the last 6 lines) of the record; a summary of which is to the effect that the Project Manager and the PW were jointly in control and conducted the day to day running of the factory. In the light of the foregoing, I hold that the appellant has failed to prove that it is entitled to any award for alleged estimated loss of profit in the sum of N521,413,740.00 or any sum whatsoever. See Trenco (Nig.) Ltd. v. African Real Estate and Investment Co. Ltd. & Another. (1978) 4 SC 9 cited by the court below.

The appellant seems to be prevaricating in one breadth, the appellant contended that the contracts between it and the respondent were void for want of Governor’s consent. At another, it is cone tending at paragraph 5.07 of its brief that a contractual relationship exists between it and the respondent. The two contentions cannot co-exist for the same party. What the lower court found at page 140 of the record is that the appellant did not deny the existence of fiduciary relationship.

That is, that it actually enjoyed loan facilities from the respondent. Assuming that the contract between the parties was clear, what is that contract? There is no doubt that the contract is that of advancement of loan facilities from the respondent to the appellant which loan facilities were repayable with interest within the periods specified. The contract has nothing to do with the running and management of appellant’s factory. Meanwhile, the claim for loss of profit is premised on the running and/or management of the factory. The appellant through PW denied that it consented to the respondent taking over the running and management of the factory. The PW further asserted that the respondent ran the factory illegally. This in effect is to say there is no contract as to running of the factory. To that extent, there is no contract to which any assessment or award can be hinged. Consequently, I am of the view that the lower court came to a right decision when it held at page 139 of the record that the appellant had not been able to prove any actual loss in monetary value accruing to it from the running of its factory by the Project Manager. For this and the earlier reasons I stated earlier on, I resolve the main issue in favour of the respondent.

On subsidiary issue relating to whether or not the plaintiff asked for or the lower court could grant any other relief to the plaintiff other than the loss of estimated profit, both learned counsel to the parties addressed the court on this subsidiary issue in their respective briefs. On pages 4 & 5 as well as page 3 of the appellant’s reply brief, learned counsel to the appellant referred to page 139 of the record of proceedings where the lower court held that the plaintiff had not asked for any other reliefs other than for loss, Learned counsel referred to paragraph 8 (b)( 1)of 8 (c) at pages 51 – 52 of the record which contained the claim (relief) of the plaintiff which was substantiated by the evidence of PW at pages 62 to 64 and exhibits 12 to 13F. Paragraphs 8 (b) (iii) is substantiated by evidence of PW at page 62 complaining of the matters contained in exhibits 12 & 13 at page 66 of the record.

Paragraph 8 (b) (iv) of the further amended statement of claim complains of carpets sold or given out and which has not been accounted for by the defendant. This is substantiated by evidence of PW at page 66 of the trial record and exhibit 14.

The witness put the value of items produced sold but unaccounted for carpet as N1,755,360.00:- See page 66 and exhibits 15 to 19.

By way of conclusion, learned counsel to the appellant on page 3 of the appellant’s reply brief submitted that the plaintiff clearly stated the relief which he was asking for in his statement of claim. Learned counsel observed that it was wrong to state that because the plaintiff did not quote verbatim when testifying what the lawyer stated at the end of his pleading hence no relief was sought. The plaintiff’s evidence stated all that is contained in the statement of claim and he should be entitled to it. Learned counsel submitted and urged the court to resolve this subsidiary issue in favour of the appellant.

By way of reply, learned counsel at page 7 of the respondent’s brief referred to the relief claimed by the appellant contained in its further further amended statement of claim at pages 51-54 of the records in paragraphs 8(a)(i) and 10. In all these paragraphs the appellant only claimed for N521,413,749.00 for loss of production based on full capacity between April, 1989 to 3rd April, 1992.

I have considered the submissions of both learned counsel to the parties on this subsidiary issue viz-a-viz the record and the prevailing law. The submission of the learned counsel to the appellant was to the effect that the plaintiff clearly stated the reliefs which he was asking for in his statement of claim apart from the loss of profit. On the other hand, the respondent’s counsel referred to the relief sought by the plaintiff in the further further amended statement of claim as N521,413,740,00 for loss of production based on full production capacity, To appreciate which submission is to be preferred I shall make a brief recourse to the records. I have gone through the records, it can be observed that relief sought by the appellant is contained in its further further amended statement of claim (see pages 51-54 of the records) at paragraphs 8a, 8b(i) and importantly 10. In all these paragraphs what the appellant claimed is the sum of N521,413,740.00. At paragraph 8(b)(i), the sum is claimed as loss of production based on full capacity production between April, 1989 to 3rd April, 1992. At paragraph 10, the same sum is claimed as this clearly shows that the plaintiff apart from loss of profit did not claim any other relief. The poser raised here in this subsidiary brief is whether a court will grant a relief not claimed. This poser has come for consideration and determination by the apex court in a plethora of cases to the effect that courts will not grant a relief not claimed. See Ezeonwu v. Onyechi (1996) 9 NWLR (Pt.438) 499 p.520 pp.521 and 529. Oodo Ogoyi v. Emmanuel Umagba & Anor. (1995) 9 NWLR (Pt.419) 310, (1995) SCNJ 55; Anthony O. Iyamu Edebiri v. Doleyi Osawe Edebiri & Ors. (1997) 4 NWLR (Pt.498) 165, (1997) 4 SCNJ 177; Jumaire Maiwada Kofar Jatau v. linno Muhammadu Mailafiya (1998) 1 NWLR (Pt. 535) 682, (1998) 1 SCNJ 48; Nnayelugo C. Odukwe v. Mrs. Abel N. Ogunbiyi (1998) 6 SCNJ 102; Abiodun Adelaja Ors. v. Yesufu Alade & Anor. (1999) 6 NWLR (Pt.608) 544, (1999) 4 SCNJ 225; Henry O. Awoniyi & Ors. v. The Reg. Trustees of the Rosicrucian Order Amorc (Nigeria) (2000) 10 NWLR (Pt.676) 522, (2000) 6 SCNJ 141; Nurudeen Adebisi Adeyeye Ors. v. Chief Sanni Agbatogun Adesanya & Ors. (2000) 2 SCNJ 79.

The rule is that a party claiming before a court must set out clearly what relief(s) he seeks. See Menakaya v. Menakaya (1996) 9 NWLR (Pt. 472) 256 P. 304. This is what the plaintiff has failed to do in the instant case.

In consequence, this subsidiary issue is resolved against the appellant.

Since all the issues are resolved against the appellant, the appeal lacks merit and it is dismissed.

N5000.00 costs is awarded in favour of the respondent and against the appellant.

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Other Citations: (2001)LCN/1060(CA)