AMINU v NWANKWO

AMINU v NWANKWO


IN THE COURT OF APPEAL
IN THE SOKOTO JUDICIAL DIVISION
HOLDEN AT SOKOTO

ON THURSDAY, 8TH JUNE, 2017


Appeal No: CA/S/60/2015
CITATION:

Before Their Lordships:

HUSSEIN MUKHTAR, JCA

MUHAMMED LAWAL SHUAIBU, JCA

FREDERICK OZIAKPONO OHO, JCA


BETWEEN

CHIKA AMINU

(APPELLANT)

AND

GODWIN NWANKWO

(RESPONDENT)


PRONOUNCEMENTS


A. ACTION
1. Claims –

Position of the law on alternative claims

The position of the law is that alternative claims can only be made where a Plaintiff sets up two or more inconsistent sets of material facts and claims reliefs on each of them in the alternative. Usually, the law regarding claims made in the alternative is that where the Principal claim of a party succeeds and is granted by the Court, there will be no need to consider any alternative claim thereto as only one of two or more alternative reliefs will be granted. See M.V. CAROLINE MAERSK vs. NOKOY INVESTMENT LTD (Supra). But where the Plaintiff as in the instant case and on a set of the same facts and not two or more asks for a relief and probably a second relief made in the alternative, then an alternative claim cannot in the strict sense of the word be said to have been made especially when alternative cases have not been alleged as in the instant case. This is even more so when the facts relating to these claims have not been separately stated in order to show on what specific facts each alternative head of relief is claimed. See the cases of METAL CONSTRUCTION (W.A) LTD vs. ABODERIN (1998) PE R-1868 (SC); UNIVERSITY OF CALABAR vs. UKOHA OBAJI OJI (2011) LPELR-5069.”Per OHO, JCA read in context

B. CONTRACT
2. Exemption Clause – Availability of an exemption clause in a contract to a party guilty of a fundamental breach

Whether an exemption clause in a contract may avail a party who has been guilty of a fundamental breach of the contract

“The settled position of the law, however is that an exemption clause can only avail a party if he is carrying out the contract in its essential respect. What that means in essence, is that a breach of the contract, which goes to the root of the agreement disentitles a party from relying on an exemption clause. In the case of EAGLE SUPER PACK (NIG.) LTD vs. AFRICAN CONTINENTAL BANK PLC (2006) LPELR-980 (SC), this was what the Supreme Court had to say on the subject per TABAI, JSC;

“An exemption clause in a contract may not avail a party who has been guilty of a fundamental breach of the contract.”
A fundamental breach of contract can be defined as an event resulting from the failure of a party to the contract to perform a primary obligation, which has the effect of depriving the other party of substantially the whole benefit, which it was the intention of the parties that he should obtain from the contract. It is instructive to note, however, that the primary obligation which the Appellant in the instant case was expected to perform was the supply of 710 bags of cement upon receiving payment of the said sum of Nine Hundred and Ninety four thousand (N994,000.00) Naira only as totally agreed cost of the cement. If therefore given the circumstances of this case, the Appellant’s failure, refusal and/or neglect to supply the said 710 bags of cement to the Respondent does not amount to a fundamental breach, then this Court wonders what would. Under the common law, a party can only be availed of the benefits of an exemption clause when the party abides by the terms and conditions of the contract and not when he is guilty of a fundamental breach of the contract. In the case of IMNL vs. PEGOFOR INDUSTIRES LTD (2005) ALL NLR 234, the Apex Court reinstated the common law rule in Nigeria that an exemption clause will not be available to a party who is in fundamental breach of a contract.” Per OHO, JCA read in context

3. Agreement – Binding nature of the terms of agreement in a contract

Whether parties are bound by the terms of their agreement

“As a result of the sanctity of agreements freely entered into between contracting parties and the need to safeguard the interests of the parties this Court would shudder at any suggestions by either of the parties that extraneous matters are read into Exhibit A which remains the fulcrum of the relationship existing between the parties in this case. I am in agreement with learned Appellant’s Counsel that Exhibit A being documentary in nature is therefore permanent and cannot be varied by parole evidence. When therefore, as it is observed in the instant case, there is not contained in Exhibit A, that a supply of the cement by the Appellant shall be made “piece meal” to the Respondent, same shall therefore not be allowed to be read into the Exhibit. See the cases of EKE vs. FRN (2013) ALL FWLR (PT. 702) 1748 AT 1804; ARTRA INDUSTRIES (NIG) LTD vs. NIGERIA BANK OF COMMENCE AND INDUSTRY (1998) 4 NWLR (PT. 546) 357 AT 376 and several cases on the subject.”Per OHO, JCA read in context

B. DAMAGES
4. General Damages –

Whether general damages are presumed to be the consequence of the act complained of

“As it relates to the grouse of the Appellant that the grant of the Respondent’s claim for general damages in the sum of N400,000.00 was inappropriate, is simply misconceived. The position of the law is that general damages, when averred as having been suffered, the law will presume to be the direct, natural or probable consequences of the act complained of by the party at the receiving end of the transaction except that the quantification of what is to be awarded thereof is at the discretion of the Court. See the cases of YALAJU-AMAYE vs. A.R.E.C. LTD (1990) LPELR -3511(SC); OSHINJIRIN & ORS vs. ALHAJI ELIAS & ORS (1970) LPELR-2799 (SC); C MEROON AIRLINES vs. OTUTUIZI (2011) LPELR- 827 (SC), where the Apex Court per RHODES-VIVOUR, JSC had this to say on the issue;

“…Once breach of contract is established, damages follow. General damages are thus losses that flow naturally from the adversary and it is generally presumed by law as it need not be pleaded or proved. See UBN LTD vs. ODUSOTE BOOKSTORE LTD (1995) 9 NWLR ( T. 421) 558. General damages is awarded by the trial Court to assuage a loss caused by an act of the adversary.”Per OHO, JCA read in context

C. EVIDENCE
5. Burden of Proof – Burden of establishing the existence of a term of an agreement

On whom lies the burden of establishing the existence of a term of an agreement

“In respect of the Appellant’s contention that from what was agreed between the parties, that the 710 bags of cement was not to be supplied to the Respondent in bulk but in “piece meal”, and upon demand whenever the Respondent is about to commence his building, it is quite remarkable to observe that the Court below was right when it refused to read into the content of Exhibit ‘A’ what obviously was not contained in the Exhibit. Interestingly, what a careful perusal of the Exhibit would reveal is that the so called “piece meal” arrangement of the Appellant was never a part of the Exhibit. The Appellant, therefore having asserted that the supplies were meant to be made: “piece meal” had the duty of discharging the burden of establishing that fact and which he had failed to do. See the case of BABINGTON ASHAYE vs. E.M.A. GENERAL ENTERPRISES (NIG.) LTD (2012) ALL FWLR (PT. 645) 56 AT 264 where this Court per PETER ODILI, JCA (as he then was) stated thus:-“The burden of establishing the existence of a term of an agreement rest squarely on the party asserting such a term…” Per OHO, JCA read in context


LEAD JUDGMENT DELIVERED BY OHO, JCA


This is a relatively short Appeal and yet in which a number legal issues have been raised and argued by learned Counsel to the parties. There is for instance, the issue of the sanctity of contracts of agreement between parties; whether the trial Court was in any position to re-write an agreement for the parties, rather than allowing them to be bound by the terms of the agreement to which they have freely entered into. There is also the closely related issue of the enforceability of Exemption clauses in contractual obligations and whether the trial Court was in any position to enforce an Exemption clause, hook, line and sinker in view of the looming presence of the doctrine of fundamental breach of the contract. Also raised along with other issues is the question of when the trial Court would be at liberty to grant an alternative claim made by a party. The issue of what constitutes double compensation in civil claims is also raised along with the arguments of Counsel dealing with the lower Court’s grant of Special damages cum General damages.

This Appeal is against the judgment of the High Court of Justice Sokoto in Suit No. SS/16/2012 delivered on the 24-6-2014 in which the Court granted the reliefs of the Respondent as Plaintiff against the Appellant who was Defendant. On the 22-5-2012, one Nonso Nwankwo (now deceased), took out a writ of summons against the Appellant and claimed sundry monetary reliefs as endorsed in Paragraph 15 of the Respondent’s statement of claims at page 7 of the records of Appeal.

The statement of claims of the Respondent at the Court below appears at pages 5 – 8 of the records while the statement of defense and counter claims of the Appellant who was the Defendant at the Court below is at pages 9 – 11 of the records. The Respondent’s Reply to the statement of defense and defense to counter claims is at pages 12 -14 of the records.

In proof of his case, the Respondent called a total of two (2) witnesses who testified as the PW1 and the PW2. Their testimonies are pasted at pages 18 – 20 and 22 – 23 of the records while Exhibits A, B and B1 were tendered by the Respondent. On the part of the Appellant as Defendant, he testified for himself as DW1 and called no witnesses. See pages 25-26 of the printed records for the testimony of the Appellant. At the close of hearing, the learned trial Court ordered the filing of final written addresses of Counsel, which were subsequently filed and exchanged at page 28 of the records. On the 24-6-2014, the learned trial Court delivered a considered judgment, in which the Court granted the reliefs of the Respondent in a considered judgment delivered at pages 51 – 63 of the records.

Dissatisfied with the said judgment, the Appellant has appealed to this Court vide his notice of Appeal dated 24-6-2014 but filed on the 25-6-2014. See pages 64 – 66 of the records. The original Respondent in this Appeal, the said Nonso Nwankwo (deceased), shortly before the hearing of this Appeal, was reported to have died on the 15-3-2017 and on the application of the present Respondent the deceased Nonso Nwankwo was substituted on the orders of this Court on the 5-4-2017.

There are three (3) Grounds of Appeal, filed and which are hereby reproduced without their particulars as follows;

GROUNDS OF APPEAL;

1. The Court below erred in law and acted without jurisdiction when it granted the alternative reliefs of the Respondent after granting the principal and or main relief of the Respondent in suit No. SS/16/2012 and this has occasioned a miscarriage of justice.

2. The judgment of the Court below is against the weight of evidence.
3. The Court below erred in law when it ordered the Appellant to pay the sum of N400, 000.00 (Four-Hundred Thousand) only as damages which was grossly excessive and in apparent disregard to the principles of law relating to the award of damages.

ISSUES FOR DETERMINATION;

Two issues were nominated for the determination of this

Court by the Appellant as follows;

1. Did the Court below reserve the jurisdiction to have granted the alternative reliefs of the Respondent after granting the principal and or main relief of the Respondent? (Ground 1).

2. Was the decision of the Court below in granting all the reliefs of the Respondent correct in law? (Grounds 2 & 3).

On the part of the Respondent, there is nominated for the determination of the Court a lone issue which is reproduced as follows;

“Whether on the preponderance of evidence at the Court below, the Respondent having proved his case against the Appellant, the Court below was right in law when it granted all the reliefs of the Respondent against the Appellant.”

The Appellant’s Brief of argument dated 21-3-2017 was settled by IBRAHIM ABDULLAHI ESQ., and filed on the 22-3-2017 but deemed properly filed and served on the 5-4-2017 while the Respondent’s Brief of argument dated the 13-3-2017 and filed on the 14-3-2017 but deemed properly filed on the 15-3-2017 was settled by CHIEF J. E. OCHIDI. At the hearing of the Appeal on the 5-4-2017, learned Counsel adopted their respective Briefs of argument on behalf of the parties and each urged this Court to resolve this Appeal in favour of their clients.

ARGUMENT OF LEARNED COUNSEL TO THE PARTIES;

APPELLANT;

ISSUE ONE;

Did the Court below reserve the jurisdiction to have granted the alternative reliefs of the Respondent after granting the principal and or main relief of the Respondent?

In respect of this issue, Counsel submitted that a Court must have both the jurisdiction and the competence before it could be properly seised of a case or matter in Court. According to Counsel, because of the radical nature of the issue of jurisdiction it can be raised at any stage of a case both at the trial and on Appeal and by any of the affected parties and even by the Court suo motu. Counsel cited the cases of EZEMO vs. OYAKHIRE (1985) 1 NWLR (PT.2) 195; PETROJESSICA ENTERPRISES LTD vs. LEVENTIS TECHNICIAL Co. LTD (1992) 5 NWLR (PT. 244) 657; and MADUKOLU vs. NKEMDILIM (1962) 2 SCNLR 341.

With these at the back of his mind, Counsel submitted that by Paragraph 15 of the Respondent’s statement of claims at pages 7 – 8 of the records, the Respondent claimed against the Appellant as follows:
“a) An order of this Honorable Court directing the Defendant to forthwith supply and deliver to the Plaintiff seven hundred and ten bags of cement, which the Plaintiff paid for and kept in the custody of the Defendant since the 16th day of September, 2010.

b) IN THE ALTERNATIVE, an order of this Honorable Court directing the Defendant to pay to the Plaintiff forthwith the current monetary market value of the said seven hundred and ten bags of cement in the sum of N1,349,000:00 (One Million, Three Hundred And Forty Nine Thousand Naira) i.e. at the rate of N1,900:00 per each bag.

c) General damages in the sums of N500, 000:00 for breach of contract.
d) The cost of this action.”

Against this position, Counsel told this Court that the Respondent’s Claims endorsed at Paragraphs 15 (a) of the statement of claims at page 8 of the records is the Respondent’s main claims, while the claims endorsed at Paragraphs 15 (b) and 15 (c) were made in the alternative and all of which claims are binding on the ourt below. But in the Court’s judgment below at page 62 lines 18-34 of the records, Counsel contended that it went ahead and granted both the principal and alternative reliefs of the Respondent in the following terms:

“… Be that as it may and having reached the conclusion that the plaintiff in this case have proved his claims against the Defendant by preponderance of evidence, this Court hereby entered judgment in favour of the Plaintiff against the Defendant per his claims in his statement of claim. Specifically, this Court ordered as follows:

1. The Defendant is hereby ordered to supply to the Plaintiff the 710 bags of cement which the Plaintiff paid for and kept in the custody of the Defendant since 16th day of September, 2010.

2. This Court ordered that in default of the immediate supply of the said 710 bags of cement by the Defendant to the Plaintiff, the Defendant to pay to the Plaintiff the sum of N1, 349, 600.00 being the current market value of the said 710 bags of cement at the rate of N1,900 per bag.

3. The Defendant to pay to the Plaintiff the sum of N400,000.00 as General Damages for breach of contract.

4. The Defendant to pay to the Plaintiff the cost of this action assessed at N50, 000.00.”

On account of the foregoing, it was submitted that the issue of the impropriety of the grant of an alternative relief after the grant of the principal relief was raised by the Appellant in Paragraph 3.21 of his written address at the Court below at page 33 of the records and, equally in Paragraph 1.10 of the Appellant’s reply address at the Court below and referred Court to pages 48 – 49 of the records. It was the further argument of learned Counsel that in law once a Court has granted the main claims in an action it cannot then proceed to grant an alternative claim. He cited the Supreme Court in the case of OLORUNFEMI vs. SAKA (1994) 2 NWLR (PT. 324) 23 AT 30 and contended that the Court below lacked the requisite jurisdiction to grant alternative claims at the same time with main reliefs. Counsel also cited the case of M.V. CAROLINE MAERSKS vs. NOKOY INVESTMENT (2002) FWLR (PT. 113) 213 AT 233.

Learned Counsel further contended that the jurisdiction of the Court below to even consider an alternative claim only arises when the Court makes a finding of fact that the Respondent was not entitled to the grant of the main or principal reliefs and not otherwise. See the case of NEWBREED ORGANISATION LTD vs. ERHOMOSELE (2006) 5 NWLR (PT. 974) 499 AT 544 PARA D-C, the Supreme Court held as follows:

“Where a claim is in the alternative, the trial Court will first of all consider whether the principal or the main claim ought to have succeeded. It is only after the Court has found that it could not for any reason grant the Principal or main claim that it would consider the alternative claim.”

Counsel contended that the Court below refused to be guided on the issue and went ahead and granted both the main and as well as the alternative claims. He urged this Court to resolve this issue in favour of the Appellant and against the Respondent.

ISSUE TWO;

Was the decision of the Court below in granting all the reliefs of the Respondent correct in law?

The contention of learned Counsel is that from the pleaded facts and as well as on the uncontroverted evidence of DW1 at pages 25 – 26 of the records, there is evidence to show that the 710 bags of cement was not to be supplied to the Defendant in bulk but in piece meal, upon demand and when the Respondent wants to commence his building. Counsel drew attention to pages 25 – 29 of the records, where the Appellant stated thus:

“There is no agreement between myself and Nonso Nwankwo that I am to supply him with cement at once.”

Counsel conceded on behalf of the Appellant that Exhibit A quite rightly stated that the 710 bags of cement were “not supplied” but that this is based on the parole understanding between the Appellant and the Respondent that the bags of cement were to be supplied upon demand on a later date when the Respondent wants to commence the erection of his building and upon demand of same. Again this backdrop Counsel queried whether any such demand was ever made as agreed and if not whether the Respondent commenced any building to make the Appellant obligated to supply the cement in bulk? According to Counsel a resolution of this question will form the necessary spring board for the determination of whether the Appellant was obliged to supply the 710 bags in bulk or not.

Learned Counsel further contended that the Appellant who testified as DW1 at pages 25 – 26 of the records gave evidence in line with pleaded facts that the 710 bags were only to be supplied in piece meal and upon demand and when the Respondent is to commence the erection of his building. Counsel added that this line of evidence was never contradicted by the Respondent under cross examination and that for this reason, the evidence of the Appellant ought to be have been believed by the Court below. He cited the cases of OMO vs. JUDICIAL SERVICE COMMITTEE OF DELTA STATE (2000) 7 S.C. (PT. 11) 1 and PHMB vs. EDOSA (2001) 2 WRN 183.

Learned Counsel argued that Exhibit A, the agreement between the parties forms the fulcrum of the understanding between the Plaintiff and the Defendant and that regrettably, the Exhibit did not state when the 710 bags of cement were to be supplied by the Appellant to the Respondent and furthermore provides a clause which states that; “there is no refund of monies after payment”, the disagreement of the Respondent notwithstanding. According to learned Counsel the terms of Exhibit A represents what were agreed upon by the parties and which very much fact was conceded to by the Respondent himself while testifying as the PW1 under cross examination at page 20 lines 9 – 13 of the records wherein the Respondent stated thus:

“I can read and write but not very well. As a businessman, I agree with all the contents in Exhibit A. Exhibit A represents the entire agreement I have with Chika Aminu. I did not agree with the term “no refund of money after payment in Exhibit A. I signed Exhibit A (the invoice). The term no refund of money after payment was not cancelled…”

In the same token, Counsel further referred Court to the answer rendered by Respondent under cross examination still in connection with Exhibit A at page 20 lines 15 – 16 of the records as follows:

“…There is no other agreement between myself and Chika Aminu apart from Exhibit A.”.

It was therefore contended by Counsel that from the Respondent’s answers it becomes clear that he placed heavy reliance on Exhibit A as reflecting the terms agreed upon between himself and the Appellant. It was further contended that Exhibit A being documentary in nature is therefore permanent and cannot be varied by parole evidence. Counsel cited the case of EKE vs. FRN (2013) ALL FWLR (PT. 702) 1748 AT 1804. It was therefore submitted that both the Appellant and the Respondent are bound by the terms of the agreement they entered into freely and engrossed on Exhibit A, to the effect that there will be no refund of monies after payment. SeeARTRA INDUSTRIES (NIG) LTD vs. NIGERIA BANK OF COMMERCE AND INDUSTRY (1998) 4 NWLR (PT.546) 357 AT 3 6.

In addition, Counsel submitted that Exhibit A shows an offer, unqualified acceptance and legal consideration and mutuality of purpose. Counsel cited the case of SEENEKA B.B.B MANUFACTURING CICAD vs. AFRICAN CONTINENTAL BANK LTD (2004) 2 NWLR (PT. 858) 521 S.C. and further contended that what the Court below did by directing a refund of monies to the Respondent even though hitherto argued that it was an alternative claim equally tantamount to rewriting the contract agreement between the parties. Counsel argued that in law, it is not the duty of the Court to make a contract for the parties before it or to rewrite one for them. According to Counsel parties to a contract are bound by the terms of the contact in a written document and cannot by extrinsic evidence add to vary subtract from a contract the terms of which is contained in a written instrument. See LARMINE vs. DPM & SERVICE LTD (2005) 18 NWLR (PT. 958) 459.

It was further argued by learned Counsel that Exhibit A specifically provided only for the supply of cement as the only liability on the part of the Appellant and not the refund of monies. He said that in law, where a contact specifically provides for liability in the case of a breach, the Court will not go outside the contact on breach of none palatable terms for one of the parties to the detriment of the other especially where it expresses the intention of the parties. See the case of NNEJI vs. ZAKHEM COM (NIG) LTD (2006) 12 NWLR (PT.994) 297 AT 319 – 320.

Learned Counsel further argued that the Court below did not find that Exhibit A is an illegal document but rather specifically placed reliance on the Exhibit in its judgment specifically at page 61 lines 15 – 18 of the records where the Court below held as thus:

“… The only document evidencing the transaction between the parties in this (sic) is Exhibit A. This Court cannot therefore accept any evidence on the part of parties outside Exhibit A…”

Having therefore held as above, Counsel queried whether there was any agreement on the basis of Exhibit A which provides for the refund of monies where there is a failure of the delivery of the cement by the Appellant to the Respondent. In his answer, Counsel not said that there was none in Exhibit A and also contended that in line with basic principles of law where there is a valid contact agreement, parties are held bound by the agreement and by all its terms and conditions, leaving no rooms for departure from what is stated therein. See JERIC (NIG. LTD) vs. UNION BANK NIG. PLC. (2000) 15 NWLR (PT. 691) 447 AT 462 – 463.

According to Counsel, the issue of non-refund of monies is clear and unambiguous and argued that where the words of a contract or agreement are clear, the operating words on it should be given their simple and ordinary meanings. See DALER NIG LTD vs. OIL MINERAL PRODUCING AREAS DEV. COMMISSION (OMPADEC) (2007) 7 NWLR (PT. 1033) 441.

On the lower Court’s order directing the Appellant to pay to the Respondent, the sums of N1, 390,000.00 being the current market value of 710 bags of cement at the rate of N1,900:00 per bag, Counsel queried whether any admissible evidence was adduced before the Court below, which showed the current market value of cement as at the time the action before the Court below was filed? In his answer, Counsel gave a categorical ‘no’. While testifying in Court as the PW1, Counsel told Court that the Respondent said that as at the time he brought this case to Court, a bag of cement cost about N1900.00. It was therefore contended by Counsel that that was the only available piece of evidence which showed that what the Respondent believed was proof of the current market value of a bag of cement as at 22-3-2012 when he instituted the action at the Court below.

In further response to this position, Counsel submitted that a claim for the market value of cement partakes in the nature of special damages, which must be proved strictly but that in the instant Appeal, there was no strict proof of same. For instance, Counsel argued that the Respondent did not tender any document to show what the current price of a bag of cement was as at the time he instituted the action at the Court below.

Learned Counsel also decried the lower Court’s grant of General Damages after the grant of his principal reliefs. According to Counsel, what the Court below did amounted to double compensation and he argued that the law is that, a party who has been fully compensated under one head cannot be awarded damages in respect of the same injury under another head. He cited the case of ARTRA INDUSTRIES (NIG LTD) vs. NIG BANK FOR COMMERCE AND INDUSTRY (1998) 4 NWLR (PT.546) 357 AT 387. Counsel further argued that the bases for the award of the said General Damages were equally not shown by the Court below thence the Court’s failure in its responsibility of justifying the colossal award of the said damages. Counsel urged this Court to resolve this second issue in favour of the Appellant and against the Respondent.

RESPONDENT;

LONE ISSUE;

“Whether on the preponderance of evidence at the Court below, the Respondent having proved his case against the Appellant, the Court below was right in law when it granted all the reliefs of the Respondent against the Appellant.”

Learned Respondent’s Counsel premised his submissions on this issue with a set of facts he says are not in dispute between the parties based on the state of pleadings of the parties at the lower Court as follows;

1. That on the 16th day of September, 2010, the Respondent purchased 710 bags of cement from the Appellant.

2. That the Respondent paid to the Appellant the cash sum of N994,000.00 as the total cost of the 710 bags of cement.
3. That the Appellant issued a receipt in the said sum of N994,000.00 to the Respondent as evidence of payment of the said sum.

4. That the Respondent made demands to the Appellant to be supplied with the said 710 bags of cement but the Appellant failed to do so.

5. That from the said 16th day of September, 2010 and up till the 7th day of May, 2012 when the Respondent commenced suit No. SS/16/2012 before the Court below, the Appellant failed, refused or neglected to supply and deliver to the Respondent the said 710 bags of cement.

6. That due to the failure of the Appellant to supply the Respondent the said 710 bags of cement, the Respondent could not commence his building.

On account of this position, Counsel submitted that the position of the law is that facts which are not in dispute need no further proof and he cited the case of UDUMA vs.
ARUNSI (2012) ALL FWLR (PT. 560) 1 90 AT 1294, in support. Counsel further submitted that by the oral testimony of the Respondent who testified as PW1 and as well as Exhibit ‘A’ tendered and admitted in evidence at the Court below, that the above facts were further established in the case and he urged this Court to so hold. (See pages 18 – 20 of the record of proceedings).

It was also argued by Counsel that by the enumerated facts, which he said are not in dispute, the onus of proof shifted on the Appellant to establish that indeed there existed a parole agreement between him and the Respondent to supply the 710 bags of cement to the Respondent not in one fell swoop, but in piece meal. This is because, Counsel said that the law in civil cases is that the burden of prove is cast on the party who asserts the affirmative of a particular issue. He cited the cases of ORJI vs. DORJI TEXTILES MILLS (NIG.) LTD (2010) ALL FWLR (PT. 519) 999 AT 1002 – 1003; OLALEYE vs. TRUSTEES OF ECWA (2011) ALL FWLR (PT. 565) 297 AT 315.

Counsel argued that in the instant Appeal, the only document evidencing the transaction between the Appellant and the Respondent is Exhibit ‘A’ (A receipt for the payment of the sum of N994,000.00 for 710 bags of cement) and that on the said Exhibit ‘A’, the expression; “Not Supplied” is written. Apart from this, Counsel argued that the Appellant at the Court below at page 26 of the records of proceedings, lines 4 -7 under cross examination admitted thus;

“… As at today, I have not supplied the Plaintiff the said 710 bags of cement. It is true that from our agreement with the plaintiff, I have to supply him 710 bags of cement…”

Counsel contended that even from the Appellant’s own testimony, it is clear that as at the 26-11-2013 when he gave evidence before the Court below, he had not supplied the said 710 bags of cement to the Respondent even though, the agreement was for him to supply the said 710 bags of cement. What is even more Counsel said is that the Appellant yet under cross-examination made further disclosures still at page 26 lines 7-10 thus;

“Apart from Exhibit ‘A’ and other receipts. There is no agreement in relation to this matter. The other receipts I made mention of are in my custody. The price of cement use to fluctuate from time to time. There is no written agreement that I would supply the Plaintiff the 710 bags of cement in piece-meal.”

Learned Counsel therefore contended that in taking into consideration the contents of Exhibit ‘A’ and going by the testimony of the Appellant under cross-examination, the Court below was right when it refused to read into the content of Exhibit ‘A’ to the effect that the Appellant was to supply to the Respondent the 710 bags of cement in “piece meal”, which was never contemplated by the parties, either orally or in writing. It was also submitted for the Respondent that the fact as canvassed by the Appellant that it is his agreement with the Respondent that the 710 bags of cement were to be supplied in piece meal only exist within the contemplation of the Appellant and that for this reason, the onus of proving same lies squarely on the Appellant and which onus he failed to discharge.

Above all else, learned Counsel submitted that whether the supplies were to have been made piece meal or in bulk, the Appellant did not state any cogent reasons for his failure or refusal to supply the 710 bags of cement to the Respondent when the Respondent made several demands to be supplied with the cement he paid for. Counsel urged this Court to so hold and to dismiss this Appeal on that ground.

Learned Counsel also submitted that the Respondent, having therefore proved his case on the preponderance of evidence as stated and owing to the failure of the Appellant to proof otherwise, the Court below found for the Respondent and entered judgment for the Respondent by granting the claims of the Respondent as contained in the Respondent’s statement of claim (see the 3rd Paragraph of page 62 of the record of proceedings). Against this background, Counsel further submitted that the orders made by the Court below at the said page 62 of the records of proceedings were the claims as made by the Respondent in his statement of claims and do not amount to re-writing the agreement between the parties as argued by the Appellant’s Counsel. Counsel argued that the position of the law is that a Court of law is bound and can only grant relief claimed by a party and not more. He cited the cases of OSUJI vs. EKEOCHA (2009) ALL FWLR (PT. 490) 614 AT 646 – 647; BELLVIEW AIRLINE LTD vs. ALUMINIUM CITY LTD (2009) ALL FWLR (PT. 434) 1599 AT 1614 in support.

On the issue that Exhibit ‘A’ did not contemplate the refund of monies already paid, it was submitted by Counsel that relief 15(b) contained in the Respondent’s statement of claim at page 8 of the records of proceedings which was granted by the Court below at page 62 of the records is not for a refund of the sum of N994,000.00 paid by the Respondent to the Appellant for the 710 bags of cement, but rather an order of the Court below directing the Appellant to pay to the Respondent the monetary value of the said 710 bags of cement in the event of the failure or default by the Appellant to supply to the Respondent the said 710 bags of cement and which the Court below having found for the Respondent was bound to grant. He urged this Court to so hold.

In respect of the Appellant’s Counsel argument that the Court below ordered the Appellant to pay to the Respondent the market value of the 710 bags of cement of the rate of N1,900.00 per bag when there was no evidence showing the market value of cement as of the time the action before the Court below was filed, Counsel submitted that the above submission of the Appellant’s ounsel is not borne out by the records of proceedings of the Court below. He said that by Paragraph 14 of the Respondent’s statement of claim at page 17 of the records of appeal, the Respondent pleaded the market value of a bag of cement as at the date the suit was filed at the Court below.

To buttress this fact Counsel drew attention of Court to the oral evidence of the Respondent as PW1 before the Court below, at lines 2 – 6 of the 1st Paragraph of page 20 of the record of proceedings where the Respondent stated thus:-
“As of the time, I brought this case to Court a bag of cement cost about N1,900. I want this Court to help me get my cement from the said Chika Aminu or the money for the cement and at the time I brought this case to Court a bag of cement cost N1,900 and the total money for the said 710 bags of cement is N1,349,000.”

Learned Counsel contended that this piece of evidence was neither challenged nor contradicted under cross-examination rather that the Appellant by his own admission in his oral testimony as DW1 stated as follows:-
“I told him that we sale cement at the cost of N1, 850…”

(See lines 12 – 13 of the testimony of the Appellant as DW1 at page 25 of the record of proceedings).

Learned Counsel further submitted that the evidence of the Respondent having not been challenged or contradicted by the Appellant and the Appellant having by his own testimony confirmed the evidence of the Respondent, the Court below was correct in law when it ordered the Appellant to pay to the Respondent the market value of the 710 bags of cement at the market rate of N1,900.00 per bag. According to Counsel, the law is that where the oral evidence of a Plaintiff is not rebutted or challenged by the defense, the Court is entitled to enter judgment for the Plaintiff on that ground. Counsel cited the case of NEWBREED ORG. LTD. V. ERHOMOSELE (2006) ALL FWLR (PT. 307) 1076 AT 1118 in support and urged the Court to so hold.

On the question of the jurisdiction of the Court below to grant the relief 15(a) contained in the Respondent’s statement of claim at page 8 of the record of proceedings, which Appellant’s Counsel contended that Court below lacked the jurisdiction to grant in the alternative, Counsel submitted that the contention of Appellant on the issue is misconceived and misleading. This is because the reliefs claimed by the Respondent as couched in Paragraph 15a, b, c and d of the Respondent’s statement of claim has no Principal and as well alternative Relief. He further said that even though the words; “in the alternative” was used by the Respondent’s Counsel in relief 15(b), same does not automatically qualify relief 15(b) as an alternative relief as a careful consideration of relief 15(a) and (b) will reveal that they are one and the same relief. Counsel urged this Court to so hold as the principles of law guiding the grant of alternative reliefs was gravely misconstrued by the Appellant’s Counsel.

For purposes of clarity, it was contended by Counsel that the principle of law guiding the grant of alternative reliefs is to the effect that, where a claimant/plaintiff sets up two sets of facts in his case and claims reliefs on each of the claims, if the Court finds for the claimant/plaintiff in such circumstance, the Court will only grant one of the reliefs and will be precluded from granting the other relief sought in the alternative if granting same will amount to double compensation in the same cause of action. He cited the cases of M. V. CAROLINE MAERSK vs. NOKOY INVEST LTD (2002) FWLR (PT. 113) 213 AT 233; IDUFUEKO vs. PFIZER PRODUCTS LTD (2014) ALL FWLR (PT. 745) 269 AT 291.

Learned Counsel therefore submitted for the Respondent that the principle of law regarding the grant or refusal of an alternative relief, as enunciated above from judicial authorities, is that the main point to consider in considering whether or not to grant an alternative relief is whether granting same will amount to ‘double compensation’. In applying this principle to the case at hand, Counsel argued that upon careful consideration of the said relief 15(b), it will be discovered that the said relief sought was not sought distinctly or on a separate set of facts and neither did the grant of same by the Court below amount to the award of double compensation to the Respondent.

Counsel contended that the Court below in granting reliefs 15(a) and (b) sought by the Respondent ordered as follows:-

“1. The defendant is hereby ordered to supply to the Plaintiff the 710 bags of cement which the Plaintiff paid for and kept in the custody of the defendant since the 16th day of September, 2010.

2. This Court ordered that in default of the immediate supply of the said 710 bags of cement by the defendant to the Plaintiff, the defendant to pay to the Plaintiff the sum of N1, 349,600 being the current market value of the said 710 bags; of cement at the rate of N 1,900 per bag.”

(See the 4th paragraph of page 62 of the record of proceedings)

While urging this Court to dismiss this Appeal, Counsel contended that relief 15(b) is not an alternative relief and was not granted as such.

On account of the grant of General Damages by the Court below, Counsel argued that it is correct in law as same flows from the case of the Respondent; that by the testimony of the Respondent as can be seen in the last line of the last paragraph of page 19 to lines 1 – 2 of the First Paragraph of page 20, the Respondent stated as thus:-
“I already mould about 10,000 blocks and because Chika Aminu did not supply me with the said cement, I could not commence building of the said house.”

Counsel further argued that it is based on the evidence of the Respondent given here above that the Court below in arriving at its decision held thus:-

“It is also in evidence that the Plaintiff in this case had wanted to start the erection of his building by the month of January, 2011 and because of the failure of the defendant to supply him with the said 710 bags of cement, he could not do so. This in my view definitely caused some form of hardship to the Plaintiff…. ”

(See lines 5 – 9 of the second paragraph of page 62 of the record of proceedings).

On account of this position, Counsel cited the case of DAUDA vs. LAGOS BUILDING INVESTMENT C. LTD (2012) ALL FWLR (PT. 625) 380 AT 393 – 394 PARAGRAPHS H – A where this Court per PAUL ADAMU GALINJE, JCA (as he then was) held as thus:-

“General damages are those damages which the law implies in every breach and every violation of a legal right. It is the loss which flows naturally from the defendant’s act, and its quantum need not be pleaded or proved as it is generally, presumed by law. The manner in which general damages is qualified is by relying on what could be the opinion and judgment of a reasonable person in the circumstances of the case.”

Learned Counsel urged this Court resolve all the issues in this Appeal in favour of the Respondent and to dismiss the Appeal.

RESOLUTION OF APPEAL

In the lower Court’s judgment at page 62, on the 4th paragraph of the printed records, it is instructive to observe that in granting the Respondent’s reliefs 15 (a) and (b), the Court made the following orders;
“1. The defendant is hereby ordered to supply to the Plaintiff the 710 bags of cement which the Plaintiff paid for and kept in the custody of the defendant since the 16th day of September, 2010.

2. This Court ordered that in default of the immediate supply of the said 710 bags of cement by the defendant to the Plaintiff, the defendant to pay to the Plaintiff the sum of N1, 349,600 being the current market value of the said 710 bags; of cement at the rate of N 1,900 per bag.”

By the grant of these orders, learned Appellant’s Counsel had contended that this had amounted to the grant of the Principal relief claimed along with the alternative relief. Counsel made a heavy weather of the issue in contending that in law when once a Court has granted the Principal claims in an action it cannot then proceed to grant an alternative claim. He cited the Supreme Court in the case of OLORUNFEMI vs. SAKA (1994) 2 NWLR (PT. 324) 23 AT 30 and further contended that the Court below lacked the requisite jurisdiction to have granted the alternative claims alongside the Principal reliefs. Having said this, the pertinent question that should perhaps, be addressed at this stage; is when can it be said that an alternative claim has indeed been made before a trial Court; and as a corollary to this question, can it really be said in the instant case, that an alternative claim was made by the Respondent in the real sense of the word?

The position of the law is that alternative claims can only be made where a Plaintiff sets up two or more inconsistent sets of material facts and claims reliefs on each of them in the alternative. Usually, the law regarding claims made in the alternative is that where the Principal claim of a party succeeds and is granted by the Court, there will be no need to consider any alternative claim thereto as only one of two or more alternative reliefs will be granted. See M.V. CAROLINE MAERSK vs. NOKOY INVESTMENT LTD (Supra). But where the Plaintiff as in the instant case and on a set of the same facts and not two or more asks for a relief and probably a second relief made in the alternative, then an alternative claim cannot in the strict sense of the word be said to have been made especially when alternative cases have not been alleged as in the instant case. This is even more so when the facts relating to these claims have not been separately stated in order to show on what specific facts each alternative head of relief is claimed. See the cases of METAL CONSTRUCTION (W.A) LTD vs. ABODERIN (1998) LPELR-1868 (SC); UNIVERSITY OF CALABAR vs. UKOHA OBAJI OJI (2011) LPELR-5069.

I am therefore in agreement with learned Respondent’s Counsel that irrespective of the manner of couching of the Respondent’s reliefs 15a, b, c and d of his statement of claim and notwithstanding the use of the expression; “in the alternative”, there cannot be said, in this case that claims have been made in the alternative so long as the Respondent did not set up two or more inconsistent sets of facts or cases and which he had separately pursued under different or alternative heads of reliefs. I am also in agreement with learned Respondent’s Counsel that the use of the words; “alternative claims” does not also automatically qualify relief 15(b) as an alternative relief to relief 15(a) as a careful consideration of both reliefs will clearly show that they are one and the same relief. I therefore find myself unable to agree with learned Appellant’s Counsel on the issue that the lower Court granted an alternative claim in the circumstances of this case for which this Court should bat an eyelid. What the Court below had merely done by the grant of the relief in Paragraph 15(b) after the grant of the relief in Paragraph 15(a) was to order for the refund of the monies of the Respondent in the event of the Appellant’s failure to supply forthwith the 710 bags of cement in the Appellant’s custody and for which he had received payment from the Respondent.

On the question of whether the decision of the Court below in granting all the reliefs of the Respondent was correct in law, learned Appellant’s Counsel contended that the only document of agreement evidencing the transaction between the parties is Exhibit A and upon which the Court below at page 61 lines 15 – 18 of the records held as follows:

“… The only document evidencing the transaction between the parties in this (sic) is Exhibit A. This Court cannot therefore accept any evidence on the part of parties outside xhibit A…”

Against the backdrop of this position, Counsel had argued that the parties were bound by the contents of Exhibit A, which made no provisions for the refund of monies to the Respondent in the event of a failure of the delivery of the cement by the Appellant to the Respondent. Counsel further contended that in line with basic principles of law where there is a valid contract agreement, parties are held bound by the agreement and by all its terms and conditions, leaving no rooms for departure from what is stated therein. In hammering more on the issue of non-refund of monies, Counsel contended that the clause is clear and unambiguous and argued that where the words of a contract or agreement are clear, the operating words on it should be given their simple and ordinary meanings. He cited a number of decided cases in support of this proposition.

It would be recalled that Exhibit A, which represents the bedrock of the relationship existing between the Appellant and the Respondent has a clause, which states that; “there is no refund of monies after payment”. Interestingly, Appellant’s Counsel had argued that the Exhibit specifically provided only for the supply of cement as the only liability on the part of the Appellant and not for the refund of monies in the event of a breach as it has happened in the instant case where the Appellant had refused and/or neglected to fulfill his own side of the contract by making good the required supplies of 710 bags of cement. As far as the Appellant is concerned, he could choose to take advantage of the exemption clause which states that; “there is no refund of monies after payment”. This is because, according to the Appellant, parties are bound by the terms and conditions of a given contract freely entered into between them.

This, in the opinion of this Court, remains the settled position of the law that cannot be denied in any way as it is also backed by an avalanche of judicial authority on the subject. As it has therefore been demonstrated in the instant case, as a result of the inclusion of a notorious feature in the said Exhibit A, what the Appellant is seen to be doing by deciding to tender the said Exhibit, is to provide himself with an opportunity to either escape or limit his liability under the agreement in which he was expected to supply a total number of 710 bags of cement after receiving payment of sum of N994,000.00 representing the total cost of the cement. In other words, what the Appellant had sought to do by tendering the Exhibit is to shy away from his contractual liability by placing reliance on the exemption clause contained therein, thereby seeking to deprive the Respondent of the ownership and use of 710 bags of cement which he has paid for.

The settled position of the law, however is that an exemption clause can only avail a party if he is carrying out the contract in its essential respect. What that means in essence, is that a breach of the contract, which goes to the root of the agreement disentitles a party from relying on an exemption clause. In the case of EAGLE SUPER PACK (NIG.) LTD vs. AFRICAN CONTINENTAL BANK PLC (2006) LPELR-980 (SC), this was what the Supreme Court had to say on the subject per TABAI, JS ;
“An exemption clause in a contract may not avail a party who has been guilty of a fundamental breach of the contract.”

A fundamental breach of contract can be defined as an event resulting from the failure of a party to the contract to perform a primary obligation, which has the effect of depriving the other party of substantially the whole benefit, which it was the intention of the parties that he should obtain from the contract. It is instructive to note, however, that the primary obligation which the Appellant in the instant case was expected to perform was the supply of 710 bags of cement upon receiving payment of the said sum of Nine Hundred and Ninety four thousand (N994,000.00) Naira only as totally agreed cost of the cement. If therefore given the circumstances of this case, the Appellant’s failure, refusal and/or neglect to supply the said 710 bags of cement to the Respondent does not amount to a fundamental breach, then this Court wonders what would. Under the common law, a party can only be availed of the benefits of an exemption clause when the party abides by the terms and conditions of the contract and not when he is guilty of a fundamental breach of the contract . In the case of IMNL vs . PEGOFOR INDUSTRIES LTD (2005) ALL NLR 34, the Apex Court reinstated the common law rule in Nigeria that an exemption clause will not be available to a party who is in fundamental breach of a contract.

In respect of the Appellant’s contention that from what was agreed between the parties, that the 710 bags of cement was not to be supplied to the Respondent in bulk but in “piece meal”, and upon demand whenever the Respondent is about to commence his building, it is quite remarkable to observe that the Court below was right when it refused to read into the content of Exhibit ‘A’ what obviously was not contained in the Exhibit. Interestingly, what a careful perusal of the Exhibit would reveal is that the so called “piece meal” arrangement of the Appellant was never a part of the Exhibit. The Appellant, therefore having asserted that the supplies were meant to be made: “piece meal” had the duty of discharging the burden of establishing that fact and which he had failed to do. See the case of BABINGTON ASHAYE vs. E.M.A. GENERAL ENTERPRISES (NIG.) LTD (2012) ALL FWLR (PT. 645) 256 AT 264 where this Court per PETER ODILI, JCA (as he then was) stated thus:-

“The burden of establishing the existence of a term of an agreement rest squarely on the party asserting such a term…”

As a result of the sanctity of agreements freely entered into between contracting parties and the need to safeguard the interests of the parties this Court would shudder at any suggestions by either of the parties that extraneous matters are read into Exhibit A which remains the fulcrum of the relationship existing between the parties in this case. I am in agreement with learned Appellant’s

Counsel that Exhibit A being documentary in nature is therefore permanent and cannot be varied by parole evidence. When therefore, as it is observed in the instant case, there is not contained in Exhibit A, that a supply of the cement by the Appellant shall be made “piece meal” to the Respondent, same shall therefore not be allowed to be read into the Exhibit. See the cases of EKE vs. FRN (2013) ALL FWLR (PT. 702) 1748 AT 1804; ARTRA INDUSTRIES (NIG) LTD vs. NIGERIA BANK OF COMMENCE AND INDUSTRY (1998) 4 NWLR (PT.546) 357 AT 376 and several cases on the subject.

As it relates to the grouse of the Appellant that the grant of the Respondent’s claim for general damages in the sum of N400,000.00 was inappropriate, is simply misconceived. The position of the law is that general damages, when averred as having been suffered, the law will presume to be the direct, natural or probable consequences of the act complained of by the party at the receiving end of the transaction except that the quantification of what is to be awarded thereof is at the discretion of the Court. See the cases of YALAJU-AMAYE vs. A.R.E.C. LTD (1990) LPELR -3511(SC); OSHINJIRIN & ORS vs. ALHAJI ELIAS & ORS (1970) LPELR-2799 (SC); CAMEROON AIRLINES vs. OTUTUIZI (2011) LPELR- 827 (SC), where the Apex Court per RHODES-VIVOUR, JSC had this to say on the issue;

“…Once breach of contract is established, damages follow. General damages are thus losses that flow naturally from the adversary and it is generally presumed by law as it need not be pleaded or proved. See UBN LTD vs. ODUSOTE BOOKSTORE LTD (1995) 9 NWLR (PT. 421) 558. General damages is awarded by the trial Court to assuage a loss caused by an act of the adversary.”

Here is a matter in which the Respondent at page 19 of the records of Appeal lines 1 – 2 testified that he already mould about 10,000 blocks and that because the Appellant did not supply the 70 bags of cement as agreed he could not commence the building of his house. I am therefore in agreement with the lower Court on the issue that the Respondent no doubt suffered untold hardship as a result of the antics of the Appellant which leaves much to be desired.

Having therefore resolved all of the Appellant’s hullabaloo associated with his arguments in respect of the Principal and Alternative claims conundrum as glamorous and edifying, and even though erudite, the fact still remains that they appear as mere tales in the estimation of this Court, full of sound and fury but signifying nothing. In the same token, the arguments made by the Appellant concerning the question of “double compensation” naturally pales into obscurity. This Appeal fails and it is accordingly dismissed with cost assessed as N100, 000.00 against the Appellant, and in favour of the Respondent.

MUKHTAR, JCA

I was privileged to read in advance, the lead judgment just rendered by my learned brother, Frederick O. Oho, JCA. I entirely agree with the eloquent reasoning therein and the conclusion that the appeal is bereft of substance.

The appeal is accordingly dismissed. I subscribe to the others made in the judgment.

SHUAIBU, JCA

I have read before now the judgment of my learned brother, Frederick O. Oho, JCA which has just been delivered. I agree entirely that the appeal is lacking in merit and same is hereby dismissed with N100,000.00 costs against the appellant and in favour of the respondent.