Texaco Overseas (Nigeria) & Anor. V. Rangk Limited (2008)
LawGlobal-Hub Lead Judgment Report
HUSSEIN MUKHTAR, J.C.A.
This appeal stems from the judgment of the Federal High Court Lagos (per E. O. Sanyaolu, J) delivered on the 24th June 2003. The respondent, plaintiff, in the court below, had claimed damages for wrongful termination of contract of service against the defendant/appellant and for debt or quantum merit for various sums of money due under the contract for the use by the appellant of the respondent’s ocean going vessel M. V. Clara in connection with the appellant’s offshore drilling and producing operations.
In its amended statement of claim dated 21st and filed on 22nd May 2003 the plaintiff/respondent claimed the following reliefs against the defendant/appellant:
a. US Dollar 436,425 + N2,702,000 (with 5% VAT) being 75% of full vessel hire rate for the period February 1, 1997 to September 8, 1997 (220 days) defendant having previously paid 25% of full rate (full rate being US Dollar 2,645 plus N=16,400 per day).
b. US Dollar 10,580 + N69,608 being payment for 4 unutilized maintenance days at the aforesaid full daily rate (including VAT)
c. US$26,450 + N=205,820 plus 5% VAT being payment for the 10 days defendant wrongly purported to impose a down time/off hire.
d. US$2,643,011 being reimbursement for fuels and oils on On/Off Hire Survey wrongly withheld by the defendant.
e. N20,000,000 being interest accrual caused by the defendant.
f. N100,000,000 general damages.”
The appellant, an oil exploration and producing company entered into a contract with the respondent, a shipping company, for the use of the respondent’s vessel MN Clara for the appellant’s drilling and producing activities offshore. Under the contract, the instrument of which was tendered and admitted as Exhibit A, the respondent was to provide the services of the vessel for two years.
The appellant by a letter dated 31st January 1997 (Exhibit C1) terminated the contract after about seventeen months from the commencement thereof and requested the respondent to remove its vessel from the appellant’s jetty. The appellant, following the premature termination of the contract paid a total sum of USD253,920 plus N1,653,120 as compensation and other entitlements accruing to the respondents made up as follows:
- “USD5,290 + N=34,440 being terminal compensation fixed by article 39 of the contract.
- USD227,470 + N=1,480,920 being payment for ten unutilized maintenance days.
- USD21,160 + N=137,760 being payment for bunkering.”
The respondent, however, dragged the appellant to court by filing a suit seeking special and general damages for wrongful termination of contract.
The appellant filed a defence asserting that the contract was properly terminated and that adequate terminal dues were paid to the respondent under the terms of the contract. The sums paid to the respondent were not denied. However the respondent, at the trial, tendered in evidence
documents relating to computation of the sums it claimed from the appellant vide exhibits F and F1.
Article 39 of the contract regulated the events and circumstances under which the contract may be terminated. However, the respondent’s case was that while the appellant had the right to terminate the contract, such right was not exercised in conformity with article 39 of the contract instrument Exhibit A. The respondent contended that the appellant in its letter of termination (Exhibit C1) did not state any reason under article 39 for the termination. On the contrary, the appellant’s case was that Exhibit C1 contained a reason, which satisfied the requirement of article 39.1.12 of the contract.
In its judgment of 24th June, 2003 the court below held that the contract was not terminated in compliance with the article 39 of the contract and was therefore wrongful and entitles the respondent to the full hire value for the unexpired term of the contract.
Aggrieved by that judgment, the appellant brought this appeal as per the notice of appeal dated and filed on the 8th September 2003 on four grounds which are reproduced hereunder less the particulars thereof:
“1. The learned trial judge erred in law and misdirected himself on the facts when he held that the termination of the agreement (Exhibit A1) by the appellant was wrongful because Exhibit C1 which gave the notice of the termination did not specify any reason for the termination as required by article 39.2 of the agreement.
- The learned trial judge erred in law in awarding full hire fees for the period (1st February to 8th September 1997) that remained for the agreement to run following its termination, contrary to the terms of the agreement between the parties and established legal principles.
- The learned trial judge erred in law when he awarded USD 1,897,472 in favour of the respondent as re-imbursement for fuels and oil on on/off hire survey, a head of claim, which was
no longer due.
- The judgment is against the weight of evidence.”
From these four grounds, both learned counsel for the appellant and the respondent raised two identical issues for determination in this appeal.
These, as framed by the appellant’s counsel, are as follows:
“1. Whether the appellant’s letter, Exhibit C1, validly and effectively terminated the contract, or, in the alternative, whether on a proper construction of exhibit CI, paragraph 1 thereof did not state any reason within the meaning of article 39.1.12 of exhibit Al that could validly and effectively terminate the contract.
- Whether the learned Judge was right in the various sums he had awarded to the respondent.”
The first issue is related to ground one while the second is distilled from grounds two and three. Ground 4 from which no issue was raised has thereby been effectively abandoned. The said ground four is accordingly discountenanced.
Before considering the arguments of counsel on the issues for determination, let me briefly look at the notice filed by the respondent to vary the judgment of the court below dated 6th and filed on the 7th November 2007, but deemed filed on the 12th November 2007. In that notice, however, the respondent sought for such far-reaching alterations, additions and omissions as could fundamentally change the substance and nature of the judgment, and substituting entirely new findings with those of the trial court.
The provision of order 9 Rule 1 of the Court of Appeal Rules 2007 that allows the respondent to bring notice to vary the judgment appealed against only allows making some changes regarding appraisal or reasoning in it to make it slightly but not fundamentally different. Where the respondent desires a fundamentally different decision from that of the court below his option is to cross appeal against the judgment. My learned Brother Mahmud Mohammed, JCA (as he then was) in COLLEGE OF EDUCATION WARRI VS ODEDE (1999) 1 NWLR (pt. 586) 253 had observed thus:
“A respondent seeking to set aside a finding which is crucial and fundamental to a case can only do so through a substantive cross-appeal and shall not do so by application to affirm or very the judgment on the other grounds.”
The respondent cannot achieve such fundamental changes through notice to vary the judgment. In fact, the respondent’s notice engages the court in a time-waste exercise as it clearly tantamount to disagreeing with and setting aside some fundamental parts of the judgment. The remedy open to it in these circumstances is to cross appeal. The respondent’s notice has, therefore, not conformed to order 9 rule 1 and is hereby accordingly struck out for incompetence.
I now return to the two issues raised for determination in this appeal.
ISSUE ONE
The learned counsel for the appellant submitted that the appellant’s letter exhibit C1 had validly terminated the contract. He referred to article 39 of the contract (exhibit A) which deals with termination of the contract before the expiration of the term thereof, and contended that the contract was properly terminated under article 39.1.12, which provides thus:
“39.1 Notwithstanding any other provision in this Service Contract, the COMPANY shall be entitled to terminate this Service Contract forthwith by giving written notice to the OWNER.
39.1.12 at its absolute discretion at any time and for any reason.”
The learned counsel for the appellant contended that the key words in article 39.1.12 are “any reason” and submitted that the appellant had the right to terminate the agreement by giving “any reason” whatsoever. He added that it is not the function of the court to import into contract words, which would do violence to the terms of the contract. See EGBE VS. YUSUF (1992) 6 NWLR (pt 245) 1; ATTAH VS THE STATE (1993) 7 NWLR (pt 305) 257 at 286; UTIH VS ONOYIVWE (1991) 1 NWLR (pt.166) 166. It is the submission of the appellant that the words “for any reason” in article 39.1.12 of the contract are plain, clear, and unambiguous and should be given their ordinary and natural meaning. See BOOKSHOP HOUSE LTD VS STANLEY CONSULTANTS LTD (1986) 5 SC 119 at 136-137; (1986) 3 NWLR (pt. 333) 385 at 400 paras. B-C.
The appellant’s counsel further contended that the first and second paragraphs of the appellant’s letter dated 31st January 1997 (exhibit C1) clearly stated the reason that led to the termination of the contract as follows:
“At our meeting of Monday, January 20, 1997, TOPCON explained to representatives of your company that TOPCON made the offer in our letter of December 20, 1996 in order to encourage an indigenous business in line with government policy. Unfortunately, you turned down the offer and insisted on conducting the relationship strictly in accordance with the terms of the contract.
Consequently, we hereby invoke the provisions of articles 39.1.12 and 39.2 and terminate contract no. LC 950002 dated September 04, 1995 between your good selves and TOPCON effective today, January 31, 1997… ”
The appellant’s counsel submitted that paragraph 1 above has clearly stated the reason that led to the termination of the contract in paragraph 2 and that it satisfies the requirement of “any reason” in article 39.1.12. The appellant’s counsel submitted that the way or manner in which the respondent perceived that reason is immaterial in so far as the appellant has given reason for termination of the contract. He added that parties to contract are bound by the terms of the agreement, which they freely entered into. See BABA VS NCAC LTD (1991) 5 NWLR (PT. 192) 388. U.B.A. LTD VS UMEH & SONS LTD (1996) 3 NWLR (PT. 426)565; SCOA NIGERIA LTD VS BOURDEX LTD (1990) 3 NWLR (pt. 138) 380.
The appellant’s counsel submitted further that the learned trial judge was misdirected by referring to article 39.1.2 instead of 39.1.12 in Exhibit A, the contract agreement, and thereby came to a wrong conclusion. He was of the opinion that if the learned trial judge had averted his mind to article 39.1.12 he could have found that the appellant’s letter of termination dated 31st January 1997 (Exhibit C1) had stated a reason and therefore validly terminated the contract (Exhibit A). He urged the court to so hold. The learned counsel for the respondent, however, submitted that Exhibit C1 merely narrated the events of the meeting held by the parties and terminated the contract without stating any substantial reason for the termination despite the illogical use of the word “consequently” therein. He added that the narrated facts did not rationalize the termination of the contract.
The respondent’s counsel assuming but without conceding that the contents of Exhibit C1 show any reason further submitted that the appellant’s own wrong doing (insistence on not complying with the contract) is contrary to the parties’ contractual intention, illegitimate, irregular, inequitable and unlawful and should not be recognized for judicial purposes as a reason for contract termination. Strict compliance with the terms of the contract, it was further submitted, cannot be a reason for its termination. See EKANEM VS AKPAN (1991) 8 NWLR (pt. 211) 616 at 637 paras F-G.
The respondent’s counsel contended that “any reason” in article 39.1.12 means “any argument” or “any explanation”. He added that “reason” in a contract termination could not be at large as to include “non justification” or whatever is said by the terminating party regardless of being right or wrong. He submitted that the contract document Exhibit A must be interpreted in a holistic and harmonious manner as to give effect to the whole contract and its objective as a binding, commercial and legitimate transaction. Thus, the expression “any reason” in article 39.1.12 means “any justification” as against “any explanation or argument”, which negates the intention of the parties, the purpose of the contract and common sense. It was further added that since the tenure of the contract was two years, termination of the contract without justification did not only negate the objective of the contract but also makes the two-year term under article 6.1 a complete nonsense. See STRIOUS INTERNATIONAL INSURANCE CO. VS FAI GENEAL INSURANCE LIMITED (2004) UKHL 54. It was further submitted that interpretation in a commercial contract must made in the con of business common sense, as the law favours a commercially sensible construction, which is more likely to give effect to the intention of the parties. See also MANNAI INVESTMENT CO. LTD VS EAGLE STAR LIFE ASSURANCE CO. LTD (1997) A C 749 at 771. It was further contended for the respondent that literal interpretation of “any reason” as including rightful rejection of the appellant’s offer or the respondent’s insistence on compliance with the contract clashes with some terms of the contract and renders others inoperative such as article 46.2. It was further argued for the respondent that the words “any reason” in article 39.1.12 could not be interpreted in a sense that would penalise the respondent for insistence on the terms of the contract as that would be irrational. It must be interpreted to mean “any reason for termination of the contract.” See S.B.N. PLC VS OPANUBI (2004) NWLR (pt. 896) 437 at 453 paras G-H; N.P.A. VS BANJO (1972) 3 S.C. It was further contended that the appellant’s discretion must not be equated with arbitrariness but must accord with justice and common sense. See SHARP VS WAKEFIELD (1871) A.C. 173; WARNER VS F.H.A. (1993) 6 NWLR (pt. 298) 148 at 180-181 paras D-A.
The respondent finally submitted that the appellants letter Exhibit C1 failed to give reason or justification for termination of the contract within the con of article 39.1.12 of the contract and urged the court to hold that exhibit C1 contains no reason for termination of the contract and did not validly terminate it.
Article 39 of exhibit A leaves no room for hide and seek regarding the events or reasons that could lead to the termination of the contract. By the provision of article 39.1.12, the appellant had a singular right to terminate the contract at its absolute discretion for “any reason”. The word “reason” is defined in the Oxford Advance Learners Dictionary 6th Edition at P. 973 as meaning “a cause or an explanation for something that has happened or that somebody has done.” The reason or explanation stated in the appellant’s letter of 20th December 1996 Exhibit C1 for the termination of the contract was the turning down by the respondent of a new offer made by the appellant and the respondent’s insistence on conforming strictly with the terms of the contract. One finds it incredible that observance of the terms of the contract could be a reason for its termination under article 39 of the contract instrument exhibit A that provides for termination thereof. The provision of sub-article 39.1.12 that gives the appellant a right to terminate the contract for “any reason” is not at large. It must be read harmoniously and not in isolation with the other sub-articles under article 39. in other words it must be interpreted adjusdem generis with the other provisions of article 39. It is my humble view that performance by the respondent of its obligation under the contract is not envisaged as a reason for termination of the contract by article 39. The intention of contracting parties is only deducible from the terms of the contract. The words “any reason” therefore mean “any reason” within the scope of the article 39 of the contract. The word “any” is defined in the Oxford Advanced Learner’s Dictionary 6th Edition at p.42 as “reference to one of a number of things when it does not matter which one.” The term therefore gives the appellant an absolute discretion to use any reason under article 39 to terminate the contract.
Terms and conditions properly incorporated in a contract are enforceable against the parties thereto who consciously have agreed to regulate their relationship by such terms and conditions. The contract document Exhibit A must be interpreted according to the strict, plain, clear and ordinary meaning of the words used in that document which, as I said earlier, reflect the clear intention of the parties thereto. The Supreme Court in V.B.N. VS OZIGI (supra) at p. 400 paras B-C held that:
“The general rule is that where the words of any instrument are free from ambiguity in themselves and where the circumstances of the case have not created any doubt difficulty as to the proper application of the words to claimants under the instrument or the subject matter to which the instrument relates, such an instrument is always to be construed according to the strict, plain and common meaning of the words themselves.”
In my humble view the contract could only be validly terminated by any of the events or reasons specified under article 39 of the contract instrument Exhibit A which gives the appellant a right to terminate the contract by giving written notice to the respondent for any of the reasons specified in the said article which range from 39.1.1 to 39.1.12. The words “any reason” could not by any stretch of imagination be intended to have given the appellant any license to import any other reason for termination of the contract than those clearly spelt out by article 39 of Exhibit A and any other reason that could adjusdem generis be aligned therewith. It would be needless for one to consult an oracle or prophet to see that “insistence by the appellant on compliance with the terms and conditions of the contract” which was used by the respondent to terminate the contract was aggressively foreign to the reasons enumerated in article 39 for terminating the contract. The words “any reason” in article 39.1.12 obviously mean any similar reason within the scope of article 39 but not “any other reason” capable of rendering the entire article 39 of the contract impotently nonsense. It follows therefore that the purported premature termination of the contract by the appellant due to the respondent’s insistence on compliance therewith inconsistent with the clear terms of the contract and therefore void in law. Thus, the appellant’s letter Exhibit C1 did not validly and effectively terminates the contract, as it contains no reason within the meaning of article 39 that could validly and effectively terminate the contract. The first issue is accordingly resolved against the appellant and ground one of the appeal to which it is related accordingly fails.
ISSUE TWO
Various sums were awarded by the learned trial Judge to the respondent, which the appellant’s counsel submitted were outside the terms of the contract. He said that damages in contract should only be awarded in accordance with the terms contemplated by the parties. See MAIDEN ELECTRONICS WORKS LTD VS ATTORNEY GENERAL OF THE FEDERAL (1974) 1 S.C. 53. The learned counsel for the appellant contended that under article 39.2 of the contract, the amount payable to the appellant upon termination was 25% of the hire fees for the vessel, i.e. USD 227,470 plus N 1,480,920 which had already been paid by the appellant to the respondent as confirmed at the trial vide exhibits F and E1. He urged the court to set aside the award of 75% of the total hire fees for the unexpired period of the contract made by the court below, which he submitted was inconsistent with the terms of the contract.
The appellant’s counsel further contended that the learned trial Judge wrongly awarded USD10,580 plus N69,608 as payment for disputed four unutilized maintenance days made up as follows:
a) The respondent claimed in exhibit C7 (page 279 of the record) the sum of US$23,805 + N147,600 for 9 unutilized maintenance days in the period 1st September 1995 to 30th June 1996. But the appellant’s position in Exhibit C6 (page 277) was that the correct number of days was 8 and that the correct amount was USD21,160 + N131,200. However, the respondent ultimately accepted USD21,160 + N137,760 for this head of claim (see Exhibit F at pages 295 – 296 of the record).
b) Similarly, the respondent claimed 5 days as unutilized maintenance days during another period (1st July 1995 to 13th January 1997), but the appellant’s record showed that the respondent was only entitled to 2 days during the period, amounting to USD5,290 + N32,800 (see Exhibit C6 at page 277 of the record). However, ultimately the respondent accepted USD5,290 + N=34,440 (Exhibit F at page 295 – 296 of the record).”
The appellant’s counsel argued that the respondent’s claim for those four unutilized maintenance days, which the appellant vehemently denied was not proved by evidence and therefore should not have been granted to the respondent. He submitted that Exhibits C7, C10 and C11 being an invoice and the respondent’s demand for payment for those four unutilized days did not amount to proof of that claim. The appellant’s counsel submitted that from the evidence before the lower court the respondents were only entitled to 10 unutilized maintenance days admitted by the appellant and not fourteen days claimed by the respondent which was not proved by evidence. See ELIAS VS DISU (1192) All N.L.R. (pt. 1) 215. The appellant’s counsel submitted that it was wrong for the lower court to have granted the respondent the sum of USD10,580 plus N69,608 for the four unutilized days without proof thereof.
The appellant’s counsel further argued that the learned trial Judge erroneously awarded USD 1,897,472 for 272 gallons of gear oil claimed by the respondent in Exhibit G which was not in dispute but applying a wrong rate of USD 6,976 per gallon instead of the current price of USD 6.976 per gallon. What was in dispute was the rate of USD 17.373 per gallon claimed by the respondent as against the rate of USD 6,976 per gallon being the correct price and which was also accepted by the court below (see page 356 of the record). However, the court below mistakenly put comma in place of a decimal point between figures 6 and 9 and thereby increased the price per gallon of gear oil from USD 6.976 to USD6,976.
The respondent’s claim was for 272 gallons multiplied by USD 17.373 per gallon amounting to USD4,725.456 while the appellant’s calculation at the price accepted by the court below was 272 gallons of gear oil multiplied by USD6.976 per gallon amounting to USD 1,897.472. The respondent was also entitled to 676 gallons of lubricant at the approximate rate of USD 6.505 per gallon amounting to USD4,397.388. This brings the respondents total entitlement for both gear oil and lubricant to USD6,294.86. The appellant’s counsel further argued that the sum due to the appellant from the respondent as per paragraph A of Exhibit G was USD 6,479.825. Thus, if the respondents’ total claim for both gear oil and lubricant are deducted from this sum, the appellant will still have a balance of USD 184.965. The appellant’s counsel, thus, submitted that the appellant had more than fully discharged its obligation to the respondent regarding the on/off hire survey for oil and lubricants. The appellant’s counsel urged the court to set aside the award erroneously made by the court below that was based on unproven claim for 4 unutilized maintenance days, and miscalculation by the court itself.
The learned counsel for the respondent, however, argued that the effect of articles 39.2 and 39.4 of the contract is that 25% of the hire fees is payable only upon proper premature termination of the contract, and that since the termination was wrongful, the respondent was entitled to 75% of the hire fee for the unexpired contract tenure being USD 436,425 and N=2,702,000.
The respondent’s counsel further argued that the burden was on the appellant to prove that there was maintenance in the 4 unutilized days because the appellant asserted that there was maintenance and should bear the burden of proving such maintenance. See TEXACO VS PEDMAR (2002) 11 NSCQR 252.
The respondent’s counsel, however, admitted the mistake of the learned trial Judge using USD 6,976 instead of USD6.976, but argued that the onus was on the appellant to prove that the prevailing price at the time of delivery was USD 6.976 as against the USD 17.373 alleged by the respondent. I am, regrettably unable to agree with the respondent’s counsel on this point. In the first place the respondent as the plaintiff did aver in its statement of claim that the price of gear oil per liter was USD 17.373 and this was outrightly denied by the appellant who instead contended, that the correct price per liter was USD6.976 relying on the products price list exhibit H (pp. 299-302 of the Record). The onus of proof was therefore on the respondent, whose averment on the rate of USD 17.373 was denied, to prove that assertion. While the appellant’s assertion of USD 6.976 per gallon was supported by the products price list exhibit H. The onus of proof was on the party who would fail if no evidence was adduced on either side. My learned brother Uthman Mohammed, JSC has aptly so stated in JACK Vs WHYTE (2001) 5 NSCQR 610 AT 621 where the learned Jurist observed thus: –
“The burden of proof in civil cases rests upon the party, whether plaintiff or defendant, who substantially asserts the affirmative of the issue. It is an ancient rule founded on consideration of good sense, and it should not be departed from without reasons. It is fixed at the beginning of the trial by the state of the pleadings, and it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleadings placed it, and never shifting in any circumstances whatever. If when all the evidence by whomsoever introduced, is in, the party who has this burden has not discharged it, the decision must be against him.”
An averment in a statement of claim when denied must be proved by evidence at the trial otherwise it will be deemed to have been abandoned. Moreover the evidence of the price list which supports the appellant’s contention of USD 6.976 per gallon was rightly relied on and accepted by the court below on the preponderance of evidence before it. It was further contended by the respondent’s counsel that there was no time when the vessel was not fully utilized by the appellant at its disposition and as such there was no down time between 16th and 26th March 1996 as alleged by the appellant. The respondent further contended that there was no incidence for the invocation of down time under article 21.1 and 21.1.1.
Since no basis for down time was established the trial court should have awarded the sum of USD26,450.00 plus N205,820 claimed by the respondent. It is pertinent that the respondent’s notice has been struck out for incompetence and therefore this demand by the respondent against the findings of the trial court, which is not an issue in this appeal must be and is hereby discountenanced.
The learned trial judge in accepting the sum of USD6.976 as unit price for the 272 gallons of gear oil, claimed by and awarded to the respondent, relied on exhibit H being the products price list and rightly so, but erroneously removed the decimal in three places and thereby multiplying the sum one thousand times. The total sum of USD 1,897,472 arrived at by the court below was price for 272,000 gallons. The correct price for 272 gallons should have been USD 1,897.472.
The computation of damages at the rate of 75% for the period from February 1st to September 8th 1997 was based on the full hire rate for the unexpired term occasioned by wrongful termination for reason outside the purview of article 39 of the contract, 25% having already been paid to the respondent by the appellant. This award therefore was meant to complete the full rate for the hire of the MY Clara vessel, which the respondent would have earned had the appellant not wrongly terminated the contract.
The fourteen unutilized maintenance days claimed by the respondent were not fully admitted. Instead the appellant admitted ten out of the fourteen days. It then behooves the appellant to lead evidence to strictly prove the four unutilized maintenance days which were denied. The testimony of P.W.1 that the defendant was indebted to the plaintiff for four unutilized maintenance days does not qualify as evidence establishing that assertion and thus, the averment was not established by evidence. Where special damage is claimed, it must be strictly proved. In this case the respondent has failed to prove that leg of his claim. It follows that the award in respect of the four unutilized days was perverse and must therefore be set aside.
On the on/off hire survey for oil and fuel the evidence before the court below established the respondent’s claim against the appellant for 272 gallons of gear oil at the rate of USD6.976 per gallon amounting to USD 1,897.472. The respondent was further entitled to 676 gallons of lubricant at a total cost of USD 4,397.388 as per exhibit G (p. 298 of the Record). The total for both oil and lubricant therefore was USD6,294.86. What on the other hand becomes due to the appellant as per exhibit G was USD 6,479.825 which is more than the sum of USD6,294.86 due to the respondent as clearly reflected in the same exhibit G. There should, therefore, have been no award to the respondent in respect of on/off hire survey. The appellant would have been entitled to some balance if it had so claimed. The award for the on/off hire survey was therefore wrongly made and it ought to be set aside.
The only sustainable award made by the court below was the 75% being the supplement in respect of the full hire rate for the unexpired period of the contract that was wrongly terminated by the appellant from 1st February to 8th September 1997 amounting to USD436,425 plus N2,702,000 and the interest of 5% on the judgment sum from date of the judgment until same is liquidated. The second issue has to that extent partially succeeded and gives the third ground of appeal a pass mark. The appeal partially succeeds on ground 3 and is to that extent allowed.
The award by the trial court of 75% of the hire rate to the respondent as analyzed above and the interest of 5% on the judgment sum is affirmed. Other findings of the court below are hereby set aside.
There shall be no order as to cost.
Other Citations: (2008)LCN/2835(CA)
