Panabiz International Ltd V. Addidon Nig Ltd & Anor (2016)
LawGlobal-Hub Lead Judgment Report
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
The present appeal is a fall-out of the judgment of the High Court of Akwa Ibom State, holden at Eket Judicial Division, delivered on July 7, 2009 in suit No.HEK/148/2005. By the said judgment, the Court below, coram, Ita G. Mbaba, J; (as he then was) granted some of the declaratory reliefs sought by the 1st Respondent against the Appellant.
Dissatisfied with the judgment in question, the Appellant filed the notice of appeal thereof in the Court below on July 28, 2009.
BACKGROUND FACTS
The genesis of the appeal dates back to December 18, 2005.
That was the date on which the 1st Respondent filed the instant suit vide a writ of summons in the Court below, seeking various declaratory and injunctive reliefs against the Appellant and the 2nd Respondent, jointly and severally. By the statement of claim thereof, filed along with the writ of summons, the 1st Respondent claimed the following reliefs against the Appellant and 2nd Respondent, jointly and severally:
(a) A declaration that the sole Distributorship of panasonic range of office Automation products granted
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to the plaintiff by the 1st defendant is still subsisting.
(b) A declaration that the 1st Defendant has caused the breach of the Distributorship Agreement by entering into the Plaintiffs territory and signing an agreement with the 2nd Defendant thus carrying out services that were in the exclusive preserve of the plaintiff while the Distributorship agreement was still subsisting.
(c) A declaration that the 2nd Defendant induced the 1st Defendant to breach the said Distributorship Agreement when the 2nd Defendant was aware that the plaintiff was the sole Distributor and Representative of, the 1st Defendant in Akwa Ibom State for sales, Installation, Repairs and Maintenance of Panasonic photocopiers.
(d) A declaration that the plaintiff relied on the Representation and the contract made by the 1st Defendant to the plaintiff that the plaintiff was her sole distributor in Akwa Ibom State and that the 1st defendant would not file a single or individual tender with the 2nd defendant and therefore upon the breach thereof, the plaintiff suffered consequential Losses and Damages for the breach of that Representation and Contract.
(e) An order
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restraining the 1st & 2nd Defendants from further breach of the Distributorship Agreement or an order of specific performance of the Distributorship Agreement.
(f) An order restraining the 2nd Defendant from giving effect to the service online Agreement Number A1944038 entered between 1st and the 2nd Defendants or an order nullifying the said agreement thereto,
(g) An order for the payment of Two Billion Naira (N2,000,000,000.00) by the 1st & 2nd Defendants jointly and severally as damages for the breach and consequential breach of the said Distributorship Agreement.
(h) An order for the payment of special damages by the 1st Defendant of Two Million, Nine Hundred and Forty-nine Thousand, One Hundred and Thirty-nine Naira (N2,949,139.00) being the balance amount due and owing to the Plaintiff as debt due as commission for the supply of Panasonic Machines and consumables for the period between March and April 2005.
(i) An order for the payment of special damages of Five Hundred and Fifty-one Million, seven Hundred and sixty-Thousand, Seven Hundred Naira only (N551,768,700.00) being the commission that could have accrued to the
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plaintiff in 50 years for the supply of equipment and photocopier consumables.
(j) An order for the payment of special damages of Two Hundred and Eighty Million, Eight Hundred and Fifty Thousand Two Hundred and sixty-eight Naira only (N280,850,268.00) being the amount of anticipated increase in commission payable to the plaintiff for the projected period of 50 years for the supply of equipment and photocopies consumables.
(k) An order for the payment of special damages of six Hundred Million Naira only (N600,000,000.00) being the anticipated income the plaintiff would have earned in the maintenance of the machines as provided in the maintenance contract.
See pages 1st – 12 of record of appeal.
Parties filed and served their respective pleadings. The case proceeded to full trial. In the course of the trial, the 1st Respondent presented a lone witness, in the person of Idongesit Ekpenya, the 1st Respondent’s Managing Director, who testified as PW1 and tendered various exhibits. The Appellant (1st Defendant) equally called a lone witness in the person of Jaja Apribo Dick and tendered various exhibits. The 2nd Respondent (2nd Defendant) deemed
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it expedient to rest the case thereof on that of the Appellant (1st Defendant).
At the conclusion of the trial, counsel to the parties filed and adopted their respective written addresses. Consequent whereupon, the Court below delivered the vexed judgment to the conclusive effect, thus:
I hold therefore that the 1st Defendant breached the contract it had with the plaintiff, when it failed to pay for services rendered to it (1st Defendant) as per the claims in Exhibit 23, which was not disputed. Upon entering into a conflicting contract with the 2nd Defendant, though with the ratification of the plaintiff, as per Exhibit 22.
Accordingly, this case succeeds only on that point and the plaintiff is entitled to damages against the 1s Defendant as per the claims (relief 34(H) of the Statement of Claim) that is to say the sum of Two Million, Nine Hundred and Forty-Nine Thousand, One Hundred and Thirty-nine Naira (N2,949,139,00) only, being the balance of the amount due and owing to the plaintiff as debt due as commission for the supply of panasonic machines and consumables at the period March and April, 2005.
I therefore award Five Million Naira
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(N5,000,000,00) to the plaintiff against the 1st defendant, as general damages.
I do not think the 2nd defendant should be held responsible for the sad end of the relationship between the plaintiff and the 1st defendant in the service of the 2nd- defendant.
Accordingly the 2nd Defendant is not liable.
The 1st Defendant shall pay interest on the judgment debt at the rate of 10% per annum from the date of the judgment until same is fully liquidated.
The 1st Defendant shall also pay the cost of this action assessed at Twenty Thousand Naira (N20,000.00) only.
See pages 278-320, especially at 319-320 of the Record of Appeal.
By the notice of appeal thereof filed on July 20, 2009, the Appellant has urged upon this Court to set aside the vexed judgment of the Court below in question , for allegedly being against the weight of evidence as adduced at the trial.
The record of appeal was initially transmitted on December 7, 2009, but deemed properly transmitted on February 3, 2015.
It was further deemed properly transmitted on May 11, 2016.
The Appellant’s brief of argument was filed on July 2, 2010, but deemed properly
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filed on November 8, 2010. It was equally further deemed properly filed on May 11, 2016.
On June 22, 2016, when the appeal finally came up for hearing, the Appellant’s learned Counsel adopted the said brief of argument thereof and urged the Court to allow the appeal. The brief spans a total of 10 pages. At page 5 thereof, three issues have been formulated for determination, viz:
(1) whether the learned Judge discharged the duty to evaluate evidence properly in this case when he held that the plaintiff is the sole and exclusive distributor of the 1st respondent’s products in Akwa Ibom State of Nigeria.
(2) whether the award of the sum of N2,949,139.oo can be justified having regard to the evidence before the Court.
(3) whether the award of general damages of N5m (Five Million Naira) was based on the guiding principles of the award of general damages.
The issue No. 1 is canvassed at pages 5-7 of the Appellant’s brief, to the effect that the trial Court failed to evaluate the evidence adduced by the Appellant at the trial.
It was submitted, that the finding of fact that the plaintiff enjoyed the status of a sole exclusive distributor
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is not supported by evidence at the trial. Therefore, there is no evidence for the Court below to conclude that the plaintiff enjoyed the status of a sole distributor. Further submitted, that where the Court fails in ascribing probative value or arrived at a wrong conclusion from accepted credible evidence, the appellate Court must interfere with such evaluation and findings of fact. See AGBEJE vs. AJIBOLA (2002) 2 NWLR (Pt. 750) L48; TSOKWA OIL MARKETING CO. VS. BON LTD. (2002) 11 NWLR (pt.777), @ 196; AWARA vs. ALALIBO (2002) 18 NWLR (pt. 799) 552 E-H.
The Court is urged upon that this is a proper case for the Court to interfere with the findings of fact.
The issue No. 2 is canvassed at pages 7 – 8 of the Appellant’s brief. Referring to Paragraph 34(H) of the Statement of Claim (for special damages of N2,949,139.00) vis-a-vis the evidence of the DW1, it was submitted that the burden of proof was wrongly placed on the 1st Defendant to fault the schedule of payment. The law is that, the onus of proving every allegation of fact is on the plaintiff, who proves his case on a preponderance of evidence and balance of probabilities. He cannot rely on the
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weakness of the opponent’s case. see AGBI vs. OGBEH (2006) 11 NWLR (pt. 990)131 paragraph B.
It was thus contended, that the award of N2,949,130.00 cannot be justified on the basis of the evidence adduced in Court.
The issue No. 3 is argued at pages 8 – 9 of the said brief, to the effect that the award of N5,000,000.00 to the plaintiff as general damages, was borne out of extraneous consideration rather than legal evidence of probative value. See ARTRA IND. LTD. VS. NIGERIA BANK FOR COMMERCE & INDUSTRY (1997) 1 NWLR (Pt. 483) 598 paragraph A; OMONUWA vs. WAHABI (1976) 4 SC @ 37; UHUNMWANCHO VS. UHUNMWANGHO (1992) 2 NWLR (pt. 226) 709 @ 711.
Conclusively, the Court is urged to allow the appeal and set aside the judgment of the Court below, as it is against the weight of evidence adduced at the trial.
On the other hand, the 1st Respondent/Cross-Appellant filed brief thereof on March 3, 2012. Pages 3 18 of the brief in question relate to the 1st Respondent’s argument in respect of the main appeal. At page 4, the Appellant’s three issues have been adopted for determination of the main appeal.
The issue No. 1 is canvassed at
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pages 7-10 of the 1st Respondent’s brief, to the effect that Appellant’s argument on the issue is bereft of a critical analysis and understanding of the decision of the Court below. it was submitted, that the documentary evidence, i.e. Exhibits 6, 11, 12, 13 and 16, were not contradicted by the Appellant, and upon the Court below based its findings, stand credible, sound and cogent.
Further submitted, that the Appellant’s submission in Paragraph 4.4 of the brief thereof, is untenable and cannot stand in the face of Exhibits 6, 11, 12 and 13, which were not controverted by the Appellant. That oral or parol argument cannot be used to controvert the contents of documentary evidence. See UNION BANK OF NIG. LTD. VS. PROF. ALVERT OJO OZIGI (1994) NWLR (pt. 333) 385) @ 400; OGBE VS. ASADE (2009) 18 NWLR (pt. 1172) 106 @ 138 – 139; SAPO VS SUNMONU (2010) 11 NWLR (Pt. 1205) 374 @ a03; et al.
The Court is urged to discountenance the Appellants argument, and resolve the No. 1 in favour of the 1st Respondent in the affirmative.
The issue No. 2 is argued at pages 10 – 14 of the said brief.
Paragraph D.11 at pages 10 – 11 of the brief, is to the effect
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that the Appellant did not formulate any issue in respect of Ground 2 of the Notice of Appeal. That ground should therefore be deemed abandoned, and strike same out. See OLAIYA VS. STATE (2010) 3 NWLR (Pt. 1181) 423 @ 433; DUZU VS. YUNUSA (2010) 10 NWLR (Pt. 1201) 80 @ 104; et al.
Arguing issue No. 2 on the merits, it is submitted that the Appellant’s argument in Paragraph 4.8 of the brief thereof, about the 1st Respondent’s bill goes to no issue, as it was never raised at the trial Court, and nor was the leave of Court sought. Thus, the Court is urged to discountenance same.
Further submitted, the argument of the Appellant on Paragraph 4.9 of the brief thereof on DW1 on the issue of payment, should be discountenanced, as it is trite that parol (oral) evidence cannot contradict the content of documentary evidence. See UBN LTD. VS. PROFESSOR ALVERT OJO OZIGI (supra); OGBE VS. ASADE(supra) @ 131.
Putting reliance on Section 137(2) of the Evidence Act, it is contended, that the 1st Respondent, having discharged its burden of proof by tendering Exhibits 13 and 23 and given evidence in this regard, the burden shifts to the Appellant to discharge.
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Regarding whether part-payment of debt can extinguish debt and represent full and final payment, reliance is placed on
(i) PINNEL’S case (1602) 5 co. REP. 117; (ii) BUILDERS vs. REES (1966) D & CB2 QB 617; to the effect that the payment of lesser sum cannot discharge a debtor from obligation to pay the full amount of debt, the punitive consent notwithstanding.
The Court is urged to resolve the issue No. 2 in favour of the 1st Respondent.
The issue No. 3 is argued at pages 14 – 18 of the brief. Paragraph D.20 of the brief, raises a preliminary objection, to the effect that the particular of ground 3 of the notice of appeal is argumentative in nature. Thus, it is a violation of the rules of Court and should be struck out. See ASR CO. LTD. vs. O.O. BIOSA & CO. LTD. (1997) 11 NWLR (pt. 527) 145 @ 156, et al.
In the alternative, it is submitted on the merits, that the Court below did not run contrary to the principles guiding the award of general damages; which is predicated on the discretionary power of the Court. See WAX (NIG.) LTD. vs. SANNI (2010) 3 NWLR (pt. 1181) 235 @ 251 – 252; BRITISH AIRWAYS VS. ATOYEBI (2010) 14
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NWLR (Pt.1214) 561 @ 608, et al.
The Court is urged to so hold, and resolve the issue No. 3 in favour of the 1st Respondent.
Conclusively, the Court is urged to uphold the decision of the Court below and accordingly dismiss the appeal.
On the other hand, the 2nd Respondent’s Amended brief was filed on May 9, 2016 but deemed properly filed and served on May 11, 2016. It spans a total of 6 pages. Three issues have been formulated at page 2 of the said brief, viz:
1. Whether the learned trial Judge in his judgment ever found that the 2nd Respondent was liable for breach of contract to warrant the award of damages against it.
2. Whether the Court can grant to the 1st Respondent/Cross-Appellant a relief not sought at the trial Court.
3. Whether the 1st Respondent/Cross-Appellant can raise a new issue on appeal.
The issue No. 1 canvassed at pages 2 – 3 of the brief. It was submitted, that in the totality of the vexed judgment, there is nothing to suggest that the 2nd Respondent was in any contractual relationship with the 1st Respondent as it relates to the matter in dispute. Nor was the 2nd Respondent held in the judgment to be
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liable for breach of contract. As such, damages cannot be awarded against the 2nd Respondent for breach of contract.
The issue No. 2 is argued at pages 3 – 4 of the said brief. It was submitted, that the 1st Respondent did not lead evidence in his examination in chief or under cross-examination nor tendered any document, to show that the 2nd Respondent actually induced the Appellant to breach the contract between it and the Appellant. Thus it would be manifestly contrary to law for any Court to hold the 2nd Respondent (2nd Defendant) guilty (sic) of breach of contract.
The issue No. 3 has been canvassed at pages 4 – 5 of the brief, to the effect that the answer thereto is in the negative.
Submitted, that by asking the Court to hold the 2nd Respondent liable for breach of contract, is tantamount to making a new case and raising a new issue on appeal. See OBIEZE vs. A-G, RIVERS STATE (2002) 1 MJSC 87 @ 911 et al.
Conclusively, the Court is urged to dismiss the 1st Respondents/cross-Appellant’s case with substantial cost.
Having accorded an ample regard upon the submissions of the learned counsel, contained in their respective
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briefs of argument vis-a-vis the record of appeal, I am inclined to hold that the issues raised by the Appellant’s brief are apt for the determination of the appeal. Thus, I hereby adopt same.
ISSUE NO.1
The first issue raises the question of whether or not the Court below discharged the duty to evaluate properly in this case, when it held that the plaintiff is the sole and exclusive distributor of the 1st Respondent’s products in Akwa Ibom State and Cross River State of Nigeria.
Regrettably, the Appellant has not deemed it expedient to indicate the ground of notice of appeal upon which the issue No. 1 is predicated, as required by the rules of Court. However, it is gleanable from the Record, that the issue No. 1 is apparently distilled from ground one, which is to the effect, thus:
GROUND ONE
The learned trial judge erred on the facts and thereby misdirected himself on the law when he held that the plaintiff was the sole and exclusive distributor of the Defendant/Appellants products in Akwa Ibom and Cross River States of Nigeria.
See page 208 of the record.
Having critically, albeit dispassionately, considered the
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vexed judgment, I am unable to uphold the Appellant’s submission under issue No.1, to the effect that the Court below failed to evaluate the evidence adduced by the Appellant vis-a-vis the 1st Respondent at the trial. The vexed judgment is contained at pages 278 – 320 of the record. Having summarized the submissions of the respective learned counsel at pages 298 – 307, the Court below deemed it expedient to identify four issues for determination, viz:
1. was the Plaintiff in a binding contractual relationship with the 1st Defendant, with regards to distributorship sales and maintenance of the 1st Defendants products in Akwa Ibom and Cross River State and in particular as relates to the sales and maintenance of the 2nd Defendant.
2. Did the Plaintiff enjoy such relationship as sole or exclusive distributor of the 1st Defendant’s products in the territory and in particular with the 2nd Defendant at the time Exhibit 22 was signed?
3. Was there any breach of contract between the plaintiff and Defendant, as a result of the contract in Exhibit 22 and is the said, contract (Exhibit 22) valid in law?
4. Is the plaintiff entitled to any of the damages or
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put differently has it proved any of the damages claimed?
Parties are ad idem, that Exhibit 1. Initiated the contractual relationship between the 1st Respondent (Plaintiff) and the Appellant (1st Defendant).
It was aptly found by the Court below, at page 308 lines 19 23 of the record, thus:
Exhibit 1 initiated the relationship between the 1st Defendant and Plaintiff, when the former appointed the latter provisionally, as distributor for the range of Panasonic office automated production marketed by the 1st Defendant in Nigeria. The area of plaintiff for distributing the said products was Cross River and Akwa lbom States.
Exhibits 2 – 5, tendered vide the PW1, are purchase orders from the 2nd Respondent to the 1st Respondent, evidencing a healthy relationship between them regarding the performance of the distributorship contract in question.
Exhibit 6 equally evidences yet another contract entered into between the 1st Respondent (plaintiff) and the 2nd Respondent (2nd Defendant) in 1999 for the maintenance of the Appellant’s (1st Defendant’s) products supplied to the 2nd Defendant. That contract (Exhibit 6) expired in
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April 2002. As rightly found by the Court below, at page 309 lines 17 – 19 of the record:
“There is therefore, no doubt that the 1st Defendant fully worked with the plaintiff to translate the distributorship contract between the plaintiff and the 1st Defendant”.
The plaintiffs sole witness, Idongesit Ekpenya, testified to the effect that after the plaintiff had stabilized its services with the Defendant, people started going to the 1st Defendant to get into the plaintiffs territory (Akwa Ibom and Cross River States) to do the same business for the 1st Defendant, but the latter declined, on the ground that the plaintiff was its sole agent in said territory. It was to that effect that the PW1 tendered Exhibit 11, which was admitted without any objection. Prior to Exhibit 11, the PW1 stated that the 1st Defendant had written to the plaintiff saying that the latter was its (1st Defendant’s) only authorized representative in Akwa Ibom and Cross River States. That was Exhibit 12. Exhibit 11 was addressed by the 1st Defendant (Appellant) on 21/10/2002 to a certain company by name Wintaba International Services Ltd. and copied to the plaintiff. Exhibit
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11 reads in part:
With reference to your letter dated 07th October 2002, we regret to inform you that we will not be able to give you spare parts and technical support for servicing of Panasonic photocopiers at Mobil producing Nigeria un limited. Also, consequent to our meeting in this office that was held with the branch manager, the management has refused you any dealership for Panasonic since the company exists in Port-Harcourt already.
The company already has its authorized dealer M/S Addidion Nigeria Limited placed at Eket and the sole authority for dealership, technical and spare parts support can be extended only to the authorized dealer mentioned herein.
What’s more, the Appellant also wrote Exhibit 12, thereby appointing the 1st Respondent as its (Appellants):
Authorized dealer/representative in Akwa Ibom State… authorized to sell and service Panasonic brands of office automation and telecommunication equipment on our behalf… We shall give them the necessary support for all after sale service and maintenance.
By Exhibit 13, it’s obvious that, there was a clear vote of confidence on the subsisting contractual
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relationship between the Appellant and the 1st Respondent. Upon the basis of the said Exhibit 13, the Appellant elevated the status of the 1st Respondent with particular regard to the 2nd Respondent, from merely being the Appellant’s agent/distributor in Akwa Ibom and Cross River States “to that of authorized dealer … placed at Eket and Sole authority for dealership technical and spare part support…”
Most interestingly, by the said Exhibit 13, the Appellant barred all others (the Appellant inclusive) from filing tender at 2nd Respondent in Eket for the purpose of maintenance service. Thus, mindful of the clear and undisputable contents of Exhibits 11, 12 &, 13, the Court below aptly postulated thus:
It is therefore dishonest and futile for the 1st Defendant to deny giving the plaintiff the exclusive right as the sole or only authorized dealer for dealership technical and spare part support and for sale service and maintenance of the 1st defendants products (Panasonic brands of office automation and telecommunication equipment on behalf of 1st Defendant at the 2nd Defendant in Eket I therefore hold that the plaintiff enjoyed sole and exclusive
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distributorship/service and maintenance of 1st Defendants products in the 1st Defendant and in Akwa Ibom State and that, to the knowledge of the 2nd Defendant.
See page 323, lines 3 – 6 of the record.
I think, I cannot agree more with the foregoing far reaching findings of the Court below, which said findings are obviously supported by the evidence on record. And I so hold. In the circumstances, the first issue is hereby resolved against the Appellants, in favour of the Respondents.
ISSUE NO.2:
The second issue raises the vexed question of whether or not the award of the sum of N2,949,139.00 can be justified having regard to the evidence before the Court below.
It is evident from the records, that the DW1 testified under cross examination, to the effect that Exhibit 13 was the authority given by the Appellant to the 1st Respondent to bid. He equally admitted, thus:
When we give the plaintiff authority to bid, on our behalf we usually turn round to bid on the same job depending on circumstances. The plaintiff was given authority to bid for this job. The plaintiff bidden on behalf of the 1st Defendant. We did not give notice to the
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plaintiff to withdraw that we were bidding directly. It was not fraudulent for us to bid directly after we had authorized the plaintiff to bid and he did so on our behalf.
See page 273 of the record.
Again, under cross examination by the counsel for the 2nd Defendant (2nd Respondent), the DW1 stated thus:
Exhibit 1 was the basis of our relationship with the plaintiff. It was on provisional basis that position as per Exhibit 1, was
I can see Exhibit 13. it was not a review of Exhibit 1… yes, Exhibit 16 was an authority for the plaintiff to bid on behalf of the 1st Defendant. It was necessary for the 1st defendant to bid in this circumstance directly because we did not want to miss the bid. The 2nd Defendant did not entice the 1st Defendant to breach any agreement with the plaintiff.
See pages 273 – 274 of the record.
Thus, by bidding for the job in question, the Appellant breached the covenant expressly stated in Exhibit 13:
It is so agreed that Parabiz International Limited will not file an individual tender for the purpose of maintenance service at Mobil, Eket”.
The Appellant was required to have
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formally terminated the contract between it and the1st Respondent before it could validly bid for and enter into the contract it did with the 2nd Respondent.
See OLALEKAN VS WEMA BANK PLC (2006) 13 NWLR (PT.998) 617 @ 625 – 6261 (2006) LPELR-2562 (SC) @ 9 – 10.
However, the above postulation notwithstanding, as rightly found by the Court below, “Exhibit 22 cannot be nullified by reason of the bad faith that brought it about. This is because the plaintiff by the conduct of its managing director (PW1) appeared to have condoned or discountenanced the defects in the way Exhibit 22 was conceived and therefore waived the plaintiff’s right to protest again.
See page 316 lines 20 – 24 of the record.
I would want to believe that the trite doctrine of PACTA SUNT SERVANDA is very much applicable to the instant case.
Invariably, the doctrine of PACTA SUNT SERVANDA denotes that agreements of a party to a contract which are not fraudulent should be observed. Such agreements should be honoured by gentlemen. See A-G, NASARAWA STATE VS. A-G, PLATEAU STATE (2012) LPELR – 9730 (SC) per Fabiyi, JSC @ 29 paragraphs A-C; (2011) 3 SC 1 @ 33, 138.<br< p=””>
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Indeed, the principle is well settled, to the effect that the person who signs a document shall be bound by the terms therein contained, unless he alleges non factum mistake, misrepresentation et al in contention. See UBA PLC VS. ALIMS NIG. LTD. (2007) LPELR-8740 (CA) @ 22 paragraphs E-F; EZEUGO VS. OHANYERE (1978) 6-7 SC @ 184.
In the case of ARCHBOLD EBBA VS OGODO (2000) 10 NWLR (Pt.675) 387 @ 402, the Apex Court aptly held:
“An estoppel therefore, is an admission of an extremely high and conclusive nature so high and so conclusive that the party whom it affects is not permitted to aver against it or offer evidence to controvert it.”
Likewise, in the case of IGA VS. AMAKIRI (1976) 11 SC 1 @ 12, the Supreme Court held:
If a man either expresses terms or by conduct, makes a representation to another of the existence of a state of facts which he intends to be acted upon in a certain, in the belief of the existence of such a state of facts, to the damage of him who so believes and acts, the first is stopped from denying the existence of such a state of facts.
See also OLALEKAN VS. WEMA BANK PLC (2006) 13 NWLR (Pt. 998) 617; (2006)
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LPELR – 2562 (SC) @ 9-10 per Onu, JSC @ 9-10; A-G, NASARAWA STATE VS. A-G, PLATAEU STATE (2011) 3 SC @ 33, 138 (2012) LPELR – 9730 per Fabiyi, JSC @ 29 paragraphs A-C.
As at 2714105, when Exhibit 22 was signed, Exhibit 13 was still subsisting. Thus, the 1st Respondent was still an agent of the Appellant in Akwa Ibom and Cross River States, with the exception of Eket. The rights and obligations of the parties to Exhibit 13, therefore, remained binding up to 30/4/05.
Undoubtedly, the 1st Respondent had the right to receive the entitlements there of outstanding on the existing contract before the signing of Exhibit 22. Under relief 34(H) of the statement of claim thereof the 1st Respondent has claimed for the following relief:
34 (H) an order for the payment of special damages by the 1st defendant of two million nine hundred and forty-nine thousand one hundred and thirty nine naira (2,949,139,00) being the balance amount due and owing to the plaintiff as debt due as commission for the Supply of Panasonic machines and consumables for the period between March and April, 2005. See page 12 of the record.
The Appellant paid N729,320.00, which
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parties ad idem agreed covered the months of January and February, 2005. Most ironically, however, that payment was predicated on the Appellant’s erroneous assumption that Exhibit 13 had ceased to be effective from 01/3/2005, when Exhibit 27 , the purported new contract between the Appellant and the 1st Respondent, was drafted. However, not surprisingly, the Court below sought otherwise:
The 1st Defendant was wrong to think that way. The 1st Defendant had a duty to satisfy that claim in Exhibit 23, the some having been due and payable as debt for services rendered the schedule having not been faulted by the 1st Defendant…The fact that the plaintiff collected the sum of N729,520.00 paid by cheque (Exhibit 24) which 1st Defendant claimed in Exhibit 28 as full and final payment for 2005, cannot be used against the plaintiff, because he was entitled to same, being part payment of his claim in Exhibit 23. See pages 318 – 319.
Not unexpectedly, soon after drawing on the cheque in question, the 1st Respondent wrote to the Appellant in Exhibit 25 on 04/8/2005 demanding payment of the outstanding balance of N2,949,139.00. It is a trite principle of common
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law, that part payment of a debt does not automatically extinguish the (creditor’s) right to demand for the balance thereof, the plaintiffs consent notwithstanding. See the old PINNEL’S CASE (1602) 5 CO.REP 117. wherein it was aptly held:
Payment of a lesser sum on the day in satisfaction of a greater sum cannot be any satisfaction for the whole, because it appears to the judges that by no possibility a lesser sum can be satisfaction to the plaintiff for a greater sum: but the gift of a horse, hawk or robe etc, might be more beneficial to the plaintiff than the money in respect of some circumstance or otherwise the plaintiff would not have accepted it in satisfaction.
“Per Lord Cock.
Similarly, in D & C BUILDERS VS REES (1966) 2 Q. B. 617, the Court of Appeal of England was reported to have aptly held:
…. no sensible distraction can be taken between payment of a lesser sum by cash and payment of it by cheque. The cheque was given, is conditional payment. When honoured, it is actual payment. It is then just the same as, cash. If a creditor is not bound when he receives payment by cash, he should not be bound when he receives payment by cheque:
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Per Lord Denning, MR. See also FOAKES VS BEER (1884) A APP. CASES 605
In the circumstance, I uphold the finding of the Court below, at page 319 of the record, to the effect that the Appellant breached the contract it had with the 1st Respondent, when it blatantly failed to pay for service rendered thereto as per the claims in Exhibit 23, which was not disputed upon entering into a conflicting contract with the 2nd Respondent, though with the ratification of the Appellant, as per Exhibit 22.
Thus, the second issue is hereby answered in the affirmative, and accordingly resolved against the Appellant.
ISSUE NO. 3:
The third issue raises the vexed question of whether or not the award of general damages of N5,000,000.00 (Five million naira) was based on the guiding principles of the award of general damages.
It was the finding of the Court below, at page 319 last paragraph of the record, that having held the 1st Respondent’s money in question against its will and interest and for the benefit of the Appellant, upon the breach of the said contract, the 1st Respondent would be entitled to damages, generally. The 1st Respondent
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has prayed under relief (G) of the claim thereof for:
“(G) An order for payment of two billion naira a (N2,000,000,000.00) by the 1st and 3rd Defendants jointly and severally as damages for the breach and consequential breach of the said distributorship agreement”
See page 12 of the record.
The 2nd Respondent was not found liable or responsible for the sordid end of the contractual relationship between the Appellant and the 1st Respondent. Undoubtedly, the claim for N2 billion general damages is most outrageous, to say the least. However, I am of the considered opinion that the N5 million awarded to the 1st Respondent as general damages against the Appellant is reasonable in the circumstances of the case. And I so hold.
It is trite, that a trial Court has an unfetted discretion to assess the quantum of general damages. However, on appeal, such general damages as assessed by the trial Court, can only be varied by the appellate Court if they are shown to either so manifestly too high or extremely low. See DORT-MUND COMPANY (NIG.) LTD. VS. ELIAS (2013) LPELR-21117 (CA) @ 37 paragraphs D-F.
Most particularly, regarding breach of
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contract as in the instant case, assessment of damages is based on the loss sustained by the injured party which loss was either in the contemplation of the respective parties, or is an unavoidable consequence of the breach. See IJEBU-ODE LOCAL GOVT VS. ADEDEJI BALOGUN & CO. (1991) 1 NWLR (pt. 166) 13: CHEVRON NIG. LTD. VS. TITAN ENERGY LTD. (2013) LPELR-21202 (CA) @ 48 – 49 paragraphs D – B.
Instructively, an award of damages is usually consequent upon a breach of contract with a view to compensating the injured party for loss naturally incurred or within the contemplation of the respective parties. Thus, where there was no such contract, an award of damages by any Court amounts to a misconception and contradiction in terms. See BEST (NIG) LTD. VS BLACKWOOD (NIG) LTD. (2011) 5 NWLR 95; (2011) LPELR-776 (SC) 1:
An award of damages usually follows a breach so as to compensate the injured party for loss following naturally and within the contemplation of the parties. Damages is attached to a breach following an enforceable contract. Where there is no such contract an award of damages by any Court is not only a misconception but a
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contradiction in terms as such award is based on a wrong principle of law. This Court has a duty not to allow such an award to stand. Per Adekeye, JSC @ 43 – 44 paragraphs G – B.
Historically, the applicable doctrine governing the award of damages was laid down way back in the 19th Century English case of HADLEY VS BAXENDALE (1854) 9 EX.34, to the effect that damages regarding breach of contract should be such as:
(i) May fairly and reasonably be considered either arising naturally that is, according to the usual course of things from such breach itself; or
(ii) May reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it.
See AFRICAN CONTINENTAL BANK PLC vs. BENEDICT O. NBISIKE (1995) LPELR-1421 (CA); (1995) 8 NWLR (PT.416); PRODUCE MARKETING BOARD VS. ADEWUNMI (1972) 1 ALL NLR (PT.2) 433 @ 438; PZ & CO. LTD. VS. OGEDENGBE (1972) 1 ALL NLR (PT.1) 202 @ 205 206; OKONGWU VS. NNPC (1989) 7 SCNJ 1904 @ 116 117; (1989) 4 NWLR (PT.115) 296.
Most interestingly, in the case of ADU PRODUCE MARKETING BOARD vs. ADEWUNMI
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(supra), the Apex Court approvingly, alluded to the earlier decision thereof in SWISS-NIGERIA-WOOD IND. LTD. VS BOGO (1972) 1 ALL NLR (Pt.2) 433 delivered on March 3, 1970, where in it held:
The terms “general” and special damages are normally inapt in the categorization of damages for the purposes of awards in cases of breach of contract. We had occasion to point out before: See AGBAJE VS. NATIONAL MOTORS LTD. SC 25/68 dated 13th March, 1970; (1971) 1 UILR 119 and we make thee point that apart from damages naturally resulting from breach, no other form of general damages can be contemplated.
See also WILFRED ONONUWA vs. B.A. WAHABI (1976) 4 SC 37 At PP. 47 – 48; MAIDEN ELECTRONICS VS. A-G, FEDERATION (1974) 1 ALL NLR 179; IJEBU-ODE LOCAL GOVERNMENT VS. ADEDIJI BALOGUN & CO. LTD. (1991) 1 NWLR (Pt. 166) 136, at 158.
Thus, the third issue is hereby equally answered in the positive, and accordingly resolved against the Appellant.
Hence, having resolved all the three issues against the Appellant, there is no gainsaying the fact, that the appeal is grossly lacking in merits, and it’s accordingly hereby dismissed by me.<br< p=””>
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Consequently, the judgment of the Court below delivered on July 7, 2009 by Ita G. Mbaba (as the learned Hon. Justice then was), is hereby affirmed. The 1st Respondent shall be entitled to costs assessed at N50,000.00 against the Appellant.
By way of an epilogue, I have deemed it expedient to postulate, that the attitudinal disposition of the Appellant in the instant case could be likened to that of Shylock as characteristically depicted in the legendary William Shakespeare’s THE MERCHANT OF VENICE. Recall, Bassanio’s passionate plea to the wise young judge – PORTIA:
And I beseech you, Wrest one the law to your authority. To do a great right, do a little wrong.
Whereupon, Portia wisely resorted:
“It must not be; there is no power in Venice that alter a decree established:
It will be recorded for a precedent.
And many errors, by the same example, will rush into the state;
It cannot be.”
Most undoubtedly, for anyone to be ‘a portia man’, he must not characteristically align himself with shylock. For, as cherishingly postulated by Lord Denning, MR, the legend of all time-
To be truly a ‘Portia Man’ the lawyer
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(nay the Judge) should follow the way in which Portia avoided an unjust decree to do what Justice and equity require,
It is in this denouement that I would follow the example of Portia I too ‘am a Portia Man.
See SYNDALL VS. CASTINGS LTD. (1967) 1 QB 302.
Other Citations: (2016)LCN/8989(CA)
