Shell Petroleum Development Company of Nigeria Ltd. V. Katad Nigeria Ltd. & Anor (2004)
LawGlobal-Hub Lead Judgment Report
ADEREMI, J.C.A.
This is an appeal against the judgment of the High Court of Justice Rivers State, sitting at Port Harcourt delivered on the 14th of December, 1999. In the court below, the 1st respondent who was the plaintiff by the endorsement in paragraph 35 of the amended statement of claim filed, by the leave of court, on the 12th of May 1999 claimed against the appellant who was the 1st defendant before that court as follows:
(i) An order of specific performance of contract No. E3A05 between itself and 1st defendant.
(ii) Alternatively N50,000,000.00 (fifty million naira) being for special and general damages against the 1st defendant for breach of contract
Particulars of special damages
Material Price Qty. Amt.
(a) Mahogany tellosy
Wooden windows N1,500.00 84pounds N126,000.00
(b) Hinges bolts
door lock 25,600.00
(c) Hardwood panels
door 3,100.00 14 43,400.00
(d) Steel protectors
for windows 750.00 84 Nos 63,000.00
(e) Hardwood ceiling
board 510.00 170 Nos. 86,700.00
(f) Ceiling battens 1,100.00 12bundles 13,200.00
(g) Copper Nails 3,000.00 2bags 6,000.00
(h) 21/2″ Nail 2,500.00 2bags 5,000.00
(i) 3″Nail 2,500.00 2bags 91,000.00
(j) Ceiling fans newclime 3,500.00 26Nos. 91,000.00
(k) 4 feet florescent
lamp/fittings 1,730.00 40 Nos. 69,200.00
(1) Electric cables for wire 70,000.00
(m) Switches & sockets 20.000.00
Total N625,000.00
(iii) 30% of total amount in (ii) above from October 1996 till judgment and thereafter 10% (Ten per cent) till liquidation
(1) Naira N1,000,000.00 (One million naira) being special and general damages against the 2nd defendant and represents the total value of materials stolen at site in paragraph 31 above.
(2) Ten per cent (10%) of the total amount for judgment till liquidation.
Suffice it to say that no claim was formulated against the 2nd defendant/respondent. Pleadings, in terms of amended statement of defence of the 1st defendant/appellant were filed and exchanged between the parties. The 2nd defendant/respondent did not file any defence. The case, thereafter proceeded to trial at the end of which, in a considered judgment delivered on the 14th of December, 1999, the learned trial Judge found for the 1st respondent as plaintiff in that court and awarded in its favour but against the 1st defendant/appellant the sum of N5,147,789.25 as special and general damages; the sum of N100,000.00 as general damages and the sum of N4,633,010.10 being 30% interest on the judgment for three years from November, 1999. The sum of N5,000.00 as cost was awarded against the 1st and 2nd defendants.
Being dissatisfied with the said judgment, the 1st defendant by a notice of appeal dated 14th December, 1999 but filed on 16th December, 1999 appealed therefrom to this court. The said notice of appeal carries four grounds. By the leave of court, three additional grounds were filed in court on the 3rd of May, 2002. The plaintiff also being dissatisfied with that part of the decision of the court below wherein it was not awarded its claims in full, cross-appealed therefrom to this court. The said notice of appeal carries only one ground of appeal. Distilled from the grounds of appeal of the appellant’s are three issues which as set out in the appellant’s brief of argument are in the following terms:
(1) Whether there was a proper basis for the award of N4,000,000.00 as general damages to the 1st respondent and subsequent award of 30% per annum from 1996?.
(2) Whether there was a proper basis for the award of N1,147,785.25 as special damages to the 1st respondent?.
(3) Whether it was proper for the learned trial court to make an award of N1,147,789.25 to the 1st respondent as special damages when all it claimed under the head of damages was N625,000.00?.
The 1st respondent adopted the issues raised by the appellant.
However, in the cross-appeal, the respondent/cross-appellant raised one issue for determination, which is as follows:
“Whether the learned trial judge made a correct approach to the law by granting the reliefs sought in part only, when the evidence led and the suit in its entirety was unchallenged?.”
In reacting to the cross-appeal, it is sufficient that I say that the cross-respondent, in its brief, expressed its adoption of the only issue raised by the cross-appellant. Suffice it to say that the 2nd respondent did not file any brief.
When this appeal and the cross-appeal came before us on the 20th of September, 2004 for argument, Mr. Umo-Udofia, learned counsel for the appellant and the cross-respondent adopted the brief of his client filed on the 3rd of May, 2002, the reply brief filed on the 19th of June, 2003 and the cross-respondent’s brief filed on the 27th of April, 2001; he urged that the appeal be allowed and the cross-appeal be dismissed. Mr. Anujem, learned counsel for the respondent and the cross-appellant adopted the respondent’s brief deemed to have been properly filed on the 18th June, 2003; and the cross-appellant’s brief filed on the 15th of March, 2001; he urged that the appeal be dismissed and that the cross-appeal be allowed.
On issues No.1, the appellant through its brief of argument submitted that damages for breach of building contract case are to be assessed under the following heads:
(1) Loss of profit on the unfinished balance.
(2) The value of the work done at the contract; or
(3) Quantum merit.
In support of the above submission the cases of (1) Kusfa v. United Bawo Construction Co. Ltd. (1994) 4 NWLR (Pt. 336) 1 (2) Ijebu-Ode L.G. v. Adedeji Balogun & Co. Ltd. (1991) 1 NWLR (Pt. 166)136 and (3) Warner & Warner Int. Assoc. Ltd. v. F.H.A. (1993) 6 NWLR (Pt.298)148 were relied upon. The facts of the case were reviewed and it was submitted further that the learned trial Judge predicated his assessment on wrong principles and this court ought to interfer and set aside the award of N4,000,000.00 as being double compensation so also the N100,000.00 awarded as general damages should also be set aside.
In opposition, the 1st respondent argued, by way of preliminary objection that the grounds of appeal are either based on fact or mixed law and fact, and because, as it was argued, the appellant failed to obtain leave of court to argue them. It was finally submitted on this point, that the appeal is incompetent and therefore should be struck out. On the merit of the case, it was the submission of the respondent that the evidence proffered by it not having been on controverted the learned trial Judge was right in making the award as it did.
However, the respondent conceded that a court does not award more than it is claimed and that the award of general damages is unknown, in law, in assessing damages in contract cases. It was further argued that the sum of N332,300.00 awarded was against the 2nd respondent and not the 1st respondent. However, as was argued, the sum of N9,780.35 awarded on the whole is justifiable in law. Indeed, on this last submission, the respondent as cross-appellant in its cross appeal vigorously argued that having not rebutted the evidence on the claim for N50,000,000.00 damages, the trial Judge ought to have awarded the sum in full. It then in its brief urged this court to award N50,000,000.00 to it.
In reply to the preliminary objection raised in the brief of the respondent, it was argued that by the provisions of section 241(1) (a) of the1999 Constitution, the judgment being a final one, the appellant need not seek and obtain the leave of court in filing grounds of appeal on issues of facts and mixed law and facts; the preliminary objection is therefore misconceived it was further argued while reliance was based on the decisions in Ogunmola v. Kida (2001)12 NWLR (Pt. 726) 93 and (2) N.B.C. Plc. v. Nwaneri (2000) 14 NWLR (Pt. 686) 30. In summary, the above is the resume of the arguments of the parties as extracted from their respective briefs.
I shall start the full consideration of this appeal with the legal point raised by way of preliminary objection in the brief of the respondent.
By way of preliminary objection, the 1st respondent, as I recounted supra, had argued that the grounds of appeal contained in the body of the notice of appeal are either of facts or mixed law and facts and since the appellant did not seek and obtain the leave of court to argue them; the appeal, it was submitted is incompetent and should be struck out. When it is said that a party needs the leave of Court of Appeal, all it literally means is seeking and obtaining permission to appeal. See Ojemen & Ors. v. H.R.H. Momodu II (1983) 3 SC 173, (1983) 1 SCNLR 188. The appeal to this court is the instant matter is from the final decision of the High Court.
Section 241(1) of the 1999 Constitution gives the guideline as to appeal from the final decision of the High Court; it provided:
“An appeal shall lie from decisions of the Federal High Court to the Court of Appeal as of right in the following cases.
(a) final decisions in any civil or criminal proceedings before the Federal High Court or on High Court sitting at first instance” (Italics mine)
The wordings of section 241(1)(a) of the 1999 Constitution which are in pari materia with the provisions of section 213(1)(a) of the 1979 Constitution (applicable to this case – the writ having been taken out on 4th November, 1996) are unambiguous. Since the time-honoured and indeed the golden rule of construction is that a Judge must apply words and phrases according to their natural and ordinary meaning without addition or submission, unless that meaning produces injustice, absurdity, anomaly or contradictions in which case, a Judge on very rare occasions is permitted to modify the natural and ordinary meaning so as to obviate such injustice but no further. Following this golden rule, I make bold to say that in any final decision of a High Court an aggrieved person can appeal as of right on any grounds be they of law, mixed law and facts or facts alone. This construction, in my respectful view, meets with the justice of the matter. Let me be quick to say that an appellant’s right of appeal does not confer on him an unlimited right to argue any ground of appeal filed in the exercise of that right. It must always be remembered that an appeal is not a matter of common right but of special provision. Therefore by virtue of section 213(6) of the 1979 Constitution (applicable here) and in pari materia with the provisions of section 243(b) of the 1999 Constitution, a court is conferred with the discretion, indeed, a duty is foisted on it, to refuse an appellant leave where the justice of the circumstances so dictates. See (1) Aroyevmn v. Adebanji (1976) 11 Sc. 33 and (2) Ejiofodomi v. Okonkwo (1982) 1 All N.L.R. (Pt. 285). By Constitutional requirement and of course a logical deduction from the above construction, subject to the provisions of section 213 of the 1979 Constitution (applicable to this case) and in pari materia to section 241 of the 1999 Constitution, an appeal shall lie from the decisions of the Federal High Court or a High Court (State) to the Court of Appeal with the leave of the Federal High Court or that of the High Court or the Court of Appeal. Perhaps I should also say that where the ground of appeal involves questions of law alone, an aggrieved party has a right of appeal against any interlocutory decision in any civil or criminal proceedings, see section 241(1)(b) of the 1999 Constitution. Before I conclude, I wish to say that generally in a decision of the High Court which is final, a party has a right of appeal, but in decisions in interlocutory matters leave of court is required except where the point raised is that of law alone. I further say that an appeal against an interlocutory decision may be included in the appeal against the final decision of the court. This would help to avoid the unnecessary delay in the determination of the main issues joined by the parties. An appellant who desires to adopt this procedure would need to obtain the leave of court. See Oke v. Nwaogbuinya (2001) 1 Sc. (Pt. 1) 22. Suffice it to say that appeal on grounds of fact alone, or mixed law and facts alone, where there is need to obtain leave of court and one has not been obtained is incompetent and will be struck out. See Igidi v. Igba (1999) 6 SC. (Pt. 1) 114.
Back to the preliminary objection, from all I have said supra, it is my considered view that the preliminary objection is not any firma terra in law. It must be struck out as being incompetent. And I so do.
The complaint of both the appellant and the cross-appellant hinges on award of damages for breach of contract. It is said that damages are compensation for loss, injury or harm of any kind.
However once the court has awarded a party compensation for the loss or harm, or injury he has suffered, it is not open to the court again to proceed to award him any other kind of additional damages that may look like a bonus. This part of what I have just said is the rule against double compensation. See (1) Lagos City Council v. Unachukwu (1978) 3 SC. 199; (2) Obi v. Biwater Shellabear (Nig.) Ltd. (1992) 1NWLR (Pt. 484) 722 and (3) Imo Concorde Hotel Ltd. v. Anya (1992) 4 NWLR (Pt. 234) 210. Our law reports, taking a queue from the first case; Livingstone v. Raw Yards Coal Co. (1990) 5A.C. 25, are now replete with the guidelines which the courts should follow in quantifying the loss suffered by the plaintiff in actions of this nature. In that case, Lord Blackburn in stating the law said at page 39 and I quote:
“Where any injury is to be compensated by damages… you should as nearly as possible get at the sum of money which put the person who has been injured … in the same position as he would have been in if he had not sustained the wrong.”
The whole idea is to restore the person wronged, or put the plaintiff into what is called restitution in integrum which means that he is entitled to recover such a sum as will replace him, so far as can be done by compensation in money, in the same position as if the loss or damages had not been inflicted on him; but subject to the rules of law as to remoteness of damage or the rule against double compensation. I bear in mind that the assessment of damages involved in the case at hand is that of a building contract. Before I go on to state the principles of law that do guide the courts, taking a queue from the locus classicus, I feel compelled to pronounce on the first leg of the claims formulated by the plaintiff which is one for an order of specific performance of contract No. E3A05 between the cross appellant and the appellant (Katad Nigeria Ltd. and Shell Petroleum Development Corporation of Nigeria Ltd.). Specific performance is a decree issued by the court ordering the defendant to perform his promise. Indeed, it is an equitable remedy granted by the court, in its discretion, such discretion, however, being exercised according to well-established principles. May I say that such a decree will not be made where the common law remedy of damages will adequately compensate the plaintiff nor where the court cannot properly supervise performance.
For these reasons, it is settled that, as a general rule, the court will not compel the building of houses. See Wilkinson v. Clements (1872) L.R. 8 Ch.96. Let it be said loud, however, that a breach of building contract must of itself be accorded compensatory award in monetary terms. The rule of assessment of damages flowing from a breach by an employer in a building contract, is well set out in Hudson’s Building and Engineering Contracts, 10th Edition at page 585 in the following terms:
“The measure of damages as a legal problem gives little difficulty in the cases of breaches of contract by the employer. It is obvious that the builders work for a profit, and apart from his entitlement to the price, the damages to a builder caused by the breach of contract by the employer will be assessed in the light of its impact upon his profit…
In the case of prevention, that is to say, where the employer has wrongfully terminated the contract, or has committed a fundamental breach justifying the builder in treating the contract as at an end, and the latter accordingly ceases to work, the measure of damages will be the loss of profit which he would have otherwise earned.
In the more usual case where the work is partly carried out at the time when the contract is repudiated, the builder will wrongly be entitled to the value of the work done assessed at the contract rates, plus his profits on the remaining work.”
The above exposition of the law on assessment of damages was quoted with approval by the Supreme Court in Ukoha & Ors. v. Okoronkwo (1972) 5 SC. 260. It was also followed by the same court in Kusfa v. United Bawo Construction Co. Ltd. (1994) 4 NWLR (Pt. 336) 1. Going by the principles set out above, a builder who complains about the wrongful termination of his contract of building will be entitled to the value of the work already done by him which will be assessed at the contract rates, plus his profits on the remaining work yet to be done before the contract was repudiated. To succeed on the two items, an aggrieved builder must adduce credible evidence.
From the pleadings and the evidence led by both sides, it is common ground that the varied contract price per exhibit E – Variation of contract dated 24th July, 1995, was N2,723,775.00. As at the time the contract was terminated, the parties are ad idem that the appellant had already paid to the 1st respondent/cross appellant a total sum of N1,531,215.00 vide exhibits G and GI – Remittance advice slips dated 21/10/95 and 03/06/96 respectively. Giving evidence in proof of the averments in the plaintiff/respondent/cross appellant, pleadings, one War Adokiye Horsefall, its managing director said inter alia:
“As the work was progressing, the 1st defendant asked me to park and leave the work site. It was in writing …”
He tendered the letter of termination of contract dated 25th June, 1996 as exhibit J. Continuing he said:
“After exhibit J, I reacted and wrote to the 1st defendant after exhibit J the 1st defendant did not come for any inspection.”
Suffice it to say that per exhibit J, the appellant claimed it was terminating the contract for reasons of consistent poor performance of the contract by the cross-appellant. A letter dated 22nd August, 1996 tendered, as exhibit K is the cross-appellant’s response to exhibit J. In exhibit K, the cross appellant invited the appellant for a joint inspection of the job already done asserting that every stage of the work was always inspected by the engineers of the appellant and of course, subtly pleading in that letter, exhibit K, that the appellant should allow wise counsel to prevail. Although the appellant wrote acknowledging the receipt of exhibit K, that it was looking into its contents, the cross appellant said no further communication came from the appellant on the issue, hence, it instructed its solicitors to write. The said solicitors by their letter dated 8th October, 1996 requested the appellant to stop the new contractors engaged by them from continuing working on the project failing which the cross appellant would have a resort to the court of law for a redress. By another letter dated 21st October, 1996 another solicitors acting under the instructions of the cross appellant intimated the appellant that the new contractors engaged by them had broken into their store and carted away the materials itemised as exhibit “P” The cost of the materials said to have been carted away amounts to N625,000.00.
Although the witness said that at last, there was a joint inspection of the site by the officials of both sides, after the inspection, the official of the appellant he claimed, wrote something on a paper, he (the official) signed and He (the witness) counter-signed; no copy of that document was given to him. Under cross-examination he said:
“At the time of exhibit J, I was at Miles Stores 7 and 8. At this stage, the 1st defendant had paid only up to Mile Store 5.
The job continued notwithstanding the payment of up to only Mile Store 5, because I borrowed money for the job and so long I was not asked to stop, I had to continue with resources… I knew the ones I had used and the balance. I knew what I had left at Mile Store 5.
I did not bring in new materials because the materials there were enough to finish the job at the Miles Stores 7 and 8.
I went with the 1st defendant for a joint inspection; after the termination of the contract. I was given a bunch of papers and I signed all. It was hand written. I do not know if others too signed…
At the time of the inspection, most of the materials were no longer there because the termination infused fear into stolen also form part of my special damages.
I purchased these items that were missing. I was issued receipts for the items I purchased.”
In continuation of his evidence, after an application for amendment had been granted, PW1 tendered a document captioned Re: supply of materials for Shell contract No. E.3A05 of 30/3/95 as evidence of materials he claimed the cross-appellant bought for the project. The document was tendered as exhibit S and he said the cross appellant had used part of these materials.
It is to be noted that the 1st defendant/appellant and 2nd respondent did not call any evidence to substantiate the averments in its pleadings. After addresses of counsel on all sides had been taken by the trial Judge, in a considered judgment delivered on the 14th of December, 1999 in which he entered judgment in the plaintiff/cross appellant’s favour in the following terms:
“(a) (N5,147,789.91) being special and general damages against the 1st defendant/appellant.
(b) N100,000.00as general damages against the 2nd defendant/respondent.
(c) N4,633,010.10 being 30% interest on the judgment for three years from November, 1996 to November, 1999 against the 1st defendant/appellant and
(d) N5,000.00 cost against the 1st and 2nd defendants.
The said learned trial Judge had held inter alia:
“The plaintiff tendered exhibit “E” which show the new contract value as N2,723,775,00. Out of this amount exhibit 1 shows that plaintiff had been paid N1,908,289.75. This leaves a balance of N815,489.25. This is the balance on the contract which the plaintiff could have reasonably received if the contract was not terminated.
The plaintiff has also shown in evidence that it secured a loan to execute this contract and that its creditor was personally monitoring the contract.
Plaintiff therefore claims 30% on the judgment debt. This piece of evidence was not denied nor rebutted by the defendants. On special damage, the plaintiff has shown the materials it had purchased to execute the contract in exhibit ‘A’ as N625,000.00.
Exhibit ‘F’ shows that plaintiff had completed the job up to Mile Store 8. This means most of the items in exhibit’S’ have been used up. Exhibit ‘P’ shows some of the items, which could have been an additional profit to the plaintiff if the contract had not been terminated.
There were items stolen as a result of the termination of the contract because the defendants asked the workers of the plaintiff to leave the site. The items in exhibit ‘P’ were stolen because of the absence of the workers.”
The learned trial Judge qualified the items in exhibit ‘P’ which he held were stolen to cost 332,300.00. Continuing his evaluation of the evidence he said:
“These to my mind constitute the special damages and not the items in exhibit ‘S’. From the above, what the plaintiff could have reasonably got if the contract was not terminated would be N815,489.25; plus N332,300.00 total – N1,147,789.25. The next is wherever the plaintiff is entitled to general damages. In assessing this I shall take into consideration the following factors among others:
(1) The general trauma arising from the unlawful termination of the contract.
(2) The fluctuating rate of the naira.
(3) The fraudulent motives behind the re-awarding of the contract to the 2nd defendant, who was a mere front to some fraudulent staff of the 1st defendant.
(4) The pains of retaining the services of a counsel to prosecute since 1996.
(5) The possibility of re-investing its money in other profit making projects. Taking these factors into consideration and the callousness attached to the re-awarding, I shall award the sum of N4 million as general damages…
Plaintiff also claims 30% as against the 1st defendant because it secured a loan which helped it to bring the contract almost to a finishing point. I shall therefore award interests of 30% in the judgment against the 1st defendant as the 1st defendant did not lead evidence to rebut this claim i.e 30% of N5,147,789.25 x 3 years i.e. N4,633,010.00. On the whole therefore, the remaining claims of the plaintiff succeed and I therefore order as follows:
That the plaintiff’s claims therefore enter judgment in its favour against the 1st defendant in the sum of N5,147,789.25 being special and general damages …
I also enter judgment against the 1st defendant in the sum of N4,633,010.10 being 30% interest on the judgment for three years from November, 1996 to November, 1999.”
A revisit to the amended statement of claim paragraph 35(ii) shows beyond any doubt that the respondent/cross appellant claimed the sum of 625,000.00 as special damages. Yet, the trial Judge awarded the sum of N1,147,789.25 as special damages. It is a well-entrenched principle of law that a court or a Judge has no jurisdiction to give or award to a party a relief which he has not asked for. Again, while a court may award less, it is certainly lacking the power to award more than what is claimed. See Oladunjoye v. Akinterinwa (2000) 4 SC (Pt.1) 19; (2000) 6 NWLR (Pt.659) 92 and the case of Onu v. Agu (1996) 5 NWLR (Pt.451) 652 referred to by the appellant. Furthermore, as I have reviewed supra, the sum of N1,147,789.25 was awarded to the cross appellant as special damages. It is axiomatic that special damages must be strictly proved; this rule requires anyone asking for special damages to prove strictly that he did suffer much special damage as he claimed. However, this does not mean that the law requires a minimum measure of evidence or that the law lays down a special category of evidence to prove his entitlement to special damages. What is required is that the person claiming should establish his entitlement to that type of damages by credible evidence of such a character as would readily lead to quantification or assessment. See (1) West African Shipping Agency (Nig.) Ltd. & Anorv. Alhaji Musa Kalla (1978) 3 SC. 21 and (2) Messrs Dumez (Nig) Ltd. v. Ogboli (1972) 3 Sc. 196. There is no scintilla of evidence as to the cost of the items which although on its pleadings, were removed by the appellant when the 2nd respondent moved into the site when the contract was re-awarded to it; but in his viva voce evidence, PWI said that those items were stolen. An allegation that certain items were stolen is a crime. Where crime is an element arising in a civil proceedings, the law enjoins the person alleging it to prove it beyond reasonable doubt. See section 138 of Evidence Act. Indeed, more importantly is the fact that, by decided cases, all on builder who complains almost wrongful termination of his contract of building can claim are:
“(1) the value of the work already done by him which must be assessed at the contract rates and
(2) his profits on the remaining work yet to be done before the contract was repudiated.”
I have had another look at the pleadings of the cross appellant; it neither claimed for balance due in respect of work done in respect of the contract nor did it claim on a quantum meruit, it just claimed N50,000,000.00 as special and general damages. There is no iota of evidence to support or justify the award of N1,147,789.25 as special damages. It must be set aside. I now proceed to the award made under general damages. To have used such parameters as trauma arising from the unlawful termination of the contract, pains of retaining the services of a counsel to prosecute the case and possibility of re-investing its money, in reaching the conclusion to award sum of money as general damages is a very serious infraction of the well known principles to be followed in assessing damages in a case of breach of building contract. General damages are not often awarded in breach of contract. This is so where, the quantum of loss is certain.
See (1) Kerewi v. Odegbesan (1967) NMLR 89 and (2) Soetan & Anor v. Ogunowo (1975) 6 SC. 67. Even where general damages will have to be awarded, from the point of view of proof, general damages in that respect are classified into two categories:
“(1) that in which they (damages) may either be inferred e.g. in cases of defamation or of personal injury of plaintiff when pain suffering may be presumed; and
(2) that in which they will not be inferred but must be proved (for instance damages arising by way of general loss of business following an injury).”
The first category is not applicable to this case. Even in regard to that category, evidence will not be allowed to be given by a plaintiff of loss of a particular transaction or customer (following the injury) with a view to showing specific loss for that is a matter, which falls within the reach of special damages. Let it be said loud that if there be any special damage which is attributable to wrongful act that special damage must be averred and proved: and if proved will be awarded. See Odumosu v. A.C.B Ltd. (1976) 11 SC 55.The award of general damages in this case by the trial Judge is grossly wrong in law. From all I have said, issues Nos. 1, 2 and 3 identified by appellant in its brief of argument are answered in the negative. I also resolve he only issue raised by the plaintiff/cross appellant against it. The justice of this case would have been met by no other order than that dismissing plaintiff’s case in its entirety by the court below.
In conclusion, having regard to all I have been saying, it is my judgment that this appeal is meritorious and it is accordingly allowed.
The judgment of the cost together with the cost allowed against the appellant are hereby set aside. In its place, an order is hereby made dismissing the suit in its entirety. The cross appeal, a fortiori, is hereby dismissed.
The appellant is entitled to the cost of the appeal, which I assess and fix at N5,000.00 in its favour but against the cross appellant.
Other Citations: (2004)LCN/1646(CA)
