Legalpedia Citation: (2014) Legalpedia (CA) 15731
In the Court of Appeal
Thu Mar 27, 2014
Suit Number: CA/IL/113/2013
CORAM
PARTIES
CHIEF ISAAC OYEGOKE (Trading under the name & Style of DAK and KOY Associate) APPELLANTS
ILORIN SOUTH LOCAL GOVERNMENT AREA RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Claimant (now Appellant) claimed against the Defendant (now Respondent) at the trial court the sum of N3,720,600.00 being the 30% commission due to the Claimant out of a total sum of N12,402,000.00 which the Claimant would have realized for the Defendant as Revenue Mobilization drive if the Defendant had not breached the contract, the sum of N3,267,000.00 being 30% commission due to the Claimant out of the sum of N10,890,000.00 which the Claimant would have realized for the Defendant as Revenue from the Central Bank of Nigeria as Tenement Rates over the Central Bank Staff Quarters, Agba Dam Area, llorin, and also claimed that the Defendant had intentionally refused to submit itself to Arbitration as provided in the agreement. The trial Judge gave judgment in favour of the Respondent. Dissatisfied with the decision of the trial court the Appellant has appealed to this court
HELD
Appeal Allowed
ISSUES
1. Whether in view of the facts and documents placed before the lower Court, the learned trial Judge was right to have concluded that the Respondent was not in breach of his obligation under Exhibit P.13 Clause 9 to provide logistic support to the Appellant by a way of vehicle for movement within llorin South Local Government Area.?
2. Whether the learned trial Judge was right to have concluded that the Appellant did not plead facts and lead evidence with regards to failure on the part of the Respondent to provide legal support as agreed by the parties in clause 9 Exhibit P.13.?
3. Whether the learned trial Judge was right to have declared that Exhibits P.l, P.9, P.10 and P.11 were documents made by the Appellant in anticipation of litigation to have had negative effect on their evidential or probative value?
4. Whether the learned trial Judge was right in failing to award the sum of N21,600.00 to the Appellant bring 30% of the sum of N72,000.00 actually recovered for the Respondent notwithstanding his positive findings in respect of same?
5. Whether the learned trial Judge was right in failing to award the sum of N3, 720,600.00 as special damages to the Appellant for loss of earning arising out of breach of contract by the Respondent for recovery of the sum of N12, 402,000.00
6. Whether the learned trial Judge was right in failing to award the sum of N3, 267,000.00 as special damages to the Appellant for loss of earning arising out of breach of contract by the Respondent for recovery of the sum of N10, 890,000.00.
RATIONES DECIDENDI
RELIEFS-DUTY OF A COURT NOT TO GRANT MORE RELIEFS SOUGHT BY A PARTY
“It is a clear position of the law that a Court cannot grant more than the reliefs sought by a party in his claim.” PER ONYEMENAM, JCA
PRELIMINARY OBJECTION-WHEN IT ARISES
“It is not every attack on an appeal that qualifies as a Preliminary Objection. A Preliminary Objection under Order 10 Rule 1 of the Court of Appeal Rules, 2011 arises where there is indeed a reason why an appeal should not be heard in the first place”. PER ONYEMENAM, JCA
APPEAL AS OF RIGHT- SECTION 241(1) (A) OF THE 1999 CONSTITUTION
“Section 241(1) (a) of the 1999 Constitution as amended provides as follows:
“241 (1) An appeal shall lie from the decisions of the Federal High Court or a High court to the Court of Appeal as of right in the following cases: final decisions in any Civil or Criminal Proceedings before the Federal High Court or a High Court sitting at first instance.” PER ONYEMENAM, JCA
PRELIMINARY OBJECTION- PURPOSE OF
“The intent of a Preliminary Objection is to show that the appeal is incompetent and foundationally defective and as such should be terminated. Categorically, Preliminary Objection is for the purpose of considering the issue of jurisdiction or competence of the Court to hear and determine a suit.” PER ONYEMENAM, JCA
APPELLATE COURT- DUTY OF AN APPELLANT THERETO
“The general practice of this Court is not to allow an Appellant rake up on appeal, issues or questions which were not raised nor tried nor considered nor pronounced upon by the trial Court.” PER ONYEMENAM, JCA
RELIEFS-GRANT OF- DUTY OF A COURT THERETO
“A Court in its duty is bound to adjudicate between parties solely on the claim formulated by them. No matter the justice of the case, a Court is bound to hear parties on a relief not sought for in a claim before it can make an order granting a relief different from the one claimed. This is so because the grant of a relief different from the one claimed will definitely violate the right of a party and the party whose right would be affected cannot be denied the right to be heard.” PER ONYEMENAM, JCA
BREACH OF CONTRACT-NATURE OF DAMAGES RECOVERABLE THEREOF
“The law is settled, that the damages that will be awarded in any event of breach of contract is such that will put the aggrieved person in a position he would have been if there was no breach, so long as such damages is such that could have been reasonably foreseeable by the parties as at when they entered the contract.” PER ONYEMENAM, JCA
FRESH ISSUE NOT CANVASSED AT THE LOWER COURT- DUTY OF A PARTY WHEN RAISING SAME ON APPEAL
“The law is firmed that a party who seeks to file and argue a fresh issue not canvassed at the lower Court on appeal, whether the issue pertains to law or otherwise, must first seek and obtain leave to so file and argue the issue.” PER ONYEMENAM, JCA
FINDINGS OF FACT-WHEN AN APPELLATE COURT CAN INTERFERE THEREWITH
“An appellate Court will normally set aside the findings of fact of a trial Court when the findings are bereft of supporting evidence, or where the trial Court failed to make proper use of the opportunity of watching and hearing the witnesses at trial or where it has drawn wrong conclusion from accepted credible evidence or has taken erroneous view of the evidence.” PER ONYEMENAM, JCA
PERVERSE FINDINGS- WHETHER CAN SUSTAIN A JUDGMENT-WHETHER AN APPELLATE COURT CAN INTEREFERE THEREWITH
“It is settled law that perverse findings cannot sustain a judgment and as such once an appellate court finds that the findings of the trial Court was perverse, the general principle of law that an appellate Court will not ordinarily interfere with the findings of fact made by the trial Court gives way”. PER ONYEMENAM, JCA
BREACH OF CONTRACT-AWARD OF DAMAGES-GUIDING PRINCIPLES
“Whenever there is a breach of contract, the general rule is that the amount of damages to be paid to the aggrieved person is such that will put the person in the position he would have been if there had not been any breach.” PER ONYEMENAM, JCA
CASES CITED
Abbas V. Solomon (2001) 15 NWLR (PT. 736) 483Chitex Industries Ltd. V. Oceanic Bank International (Nig.) Ltd. (2005) All FWLR (Pt. 276) 610Eyigebe V. lyaji (2013) ALL FWLR (Pt.703) 1901Hassan V. Aliyu & Ors. (2010) L.PELR – 1357 (SC)Jacob A. Jolayemi & Ors. V. Alhaji Raji Ajaoye & Anor. (2004) 18 NSCQR 682Obiakor & Anr. V. The State (2002) SCNLR 193Oseni V. Bajulu & Ors (2009) 12 MJSC (Pt. 1) 30Osuji V. Ekeocha (2009) LPELR – 28 16 (SC);Okolo V. Union Bank of Nigeria Ltd (1998) 2 NWLR (Pt. 539) 618Woluchem V. Gudi (1981) 5 SC 291 at 295
STATUTES REFERRED TO
1. The 1999 ConstitutionThe Court of Appeal Rules, 2011
2. The Evidence Act, 2011
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