[PDF copy of this judgment can be sent to your email for N300 only. Just order through email@example.com and firstname.lastname@example.org or text 07067102097]
CADBURY NIGERIA PLC
R. BENKAY NIGERIA LIMITED
IN THE COURT OF APPEAL OF NIGERIA
ON MONDAY, THE 22ND DAY OF JULY, 2013
BEFORE THEIR LORDSHIPS
AMINAT ADAMU AUGIE, J.C.A
CHIMA CENTUS NWEZE, J.C.A
RITA NOSAKHARE PEMU, J.C.A
CADBURY NIGERIA PLC – Appellant(s)
Dr. Nnamdi Dimgba Esq., with Chukwuemeka Osuji Esq., and Uzo Akunebu Esq. – For Appellant
Andrew Igboekwe Esq., with Chibuzo Anaeto (Miss) Esq., and Opeyemi Afeni Esq. – For Respondent
Honourable Justice Y.A. Adesanya of the Lagos State High Court
TRANSPORT AND MOTOR VEHICLE LAW:- Contract for logistic services – haulage of goods – Claim that goods were stolen in transit – Detention of lorry of logistic company by goods owner consequent upon a Mareva injunction – Where order discharged as null and void – Whether entitles truck owners to damages
TORT AND PERSONAL INJURIES LAW:- Detention of vehicle pursuant to a contract of logistic services for failure to deliver goods as charged – Whether lorry operator entitled to damages after Mareva Order is discharged
PRACTICE AND PROCEDURE – ORDERS – MAREVA INJUNCTION:- Discharge of order – Whether can ground claim in damages for wrongful detention or interference
PRACTICE AND PROCEDURE – EVIDENCE – BURDEN OF PROOF: “Sections 135 and 137 of the Evidence Act – On whom lies the burden of proof in civil cases – Whether the burden is static and does not shift from the Claimant to the Defendant
PRACTICE AND PROCEDURE – DAMAGES – SPECIAL DAMAGES: Requirement to support same with evidence when the claim is for anticipated earnings
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Ruling of Honourable Justice Y.A. Adesanya of the Lagos State High Court delivered on the 11th of July 2008 wherein the learned trial Judge after an enquiry as to damages awarded the sum of N3,048, 423.20 (Three Million, forty eight thousand, four hundred and twenty three naira, twenty kobo) to the Respondent as damages for the unlawful detention of the Respondents’ 30 tones Mercedes Benz trailer with registration number BD 4053A between 24th March 1997 and 17th April 2000 pursuant to an unlawfully obtained order of mareva injunction dated 24th March 1997.
The Appellant was Claimant at the High Court, and he instituted an action against the Respondent claiming the sum of N5,108,210.30 (Five million, one hundred and eight thousand, two hundred and ten naira, thirty kobo.) as value of the goods it consigned to the Respondent to be delivered to its customer in Aba.
The goods were allegedly lost in transition on 12/9/1996 by the Respondent, through an alleged robbery attack at Agbor, Delta State.
By motion ex-parte dated 24/3/07 the Appellant obtained an order authorizing it to keep in its premises, the Respondents’ trailer.
The Respondent did not apply to set aside this order but filed its Statement of Defence and Counter Claim, as well as a Notice of Preliminary objection to the suit – Pages 41 – 84 of the (Record of Appeal).
After other processes were filed and after the filing of various affidavit evidence, the High Court of Lagos State coram Y.A. Adesanya J, awarded the sum of N3,048,423.20k as damages for the detention of the Respondents’ Trailer between 24/3/97 and 17/4/00 pursuant to the Court order of 24/3/97.
The Appellant is dissatisfied with the Ruling and in an amended Notice of Appeal filed on the 13th of April 2012 with five (5) Grounds of Appeal; he seeks an order of this Honourable Court setting aside the Ruling, and an order dismissing the application for enquiry into the quantum of damages dated 17th November 2005.
The respective parties filed their Briefs of Argument.
The Appellant filed its Brief of Argument on the 20th of April 2012. It is settled by Michael Amadi. There is a Notice of Cross Appeal with nine (9) Grounds of Appeal filed on the 7th of October 2008. The Respondent filed his Brief of Argument and cross Appeal on the 28th of May 2012. It is settled by A.C. Igboekwe Esq.,
There is Appellants’ Reply Brief of Argument and Cross Respondents’ Brief of Argument filed on the 28th of August 2012 but deemed filed on the 25th of February 2013, and a Cross Appellants’ Reply Brief filed on the 8th of March 2013.
The Appellant has distilled three issues for determination from the Grounds of Appeal. They are:
On his part, the Respondent distilled two issues for determination. They are:
On the 28th of May 2013, the parties adopted their respective Briefs of Argument.
On Issue No. 1, the Appellant submits that the lower Court was estoppel from examining the application of 17/11/05 because a similar application (on under taking as to damages) had been brought before the High Court of Lagos State on the 3rd of October 2000 considered on its merits and dismissed.
That the prayers sought by the Respondent in the application of 3/10/2000 and 17/11/2005 are intricately the same.
That the present appeal is against the Ruling of 11/7/08 and not against the Ruling of 13/4/2006, the two Rulings cannot be isolated. He argues that while Ruling of 13/04/2006 granted the first prayer of the Respondent (directing that enquiry be made) the Ruling of 11/7/08 granted the 2nd prayer to wit: directing the Appellant to pay and indemnity the Respondent for the damages that may be found to have been suffered as a result of the order of injunction granted by the High Court on 24/3/07.
He argues that the issues in the two application, being the same, the Respondent is not entitled to raise the issue of damages after it had been considered and dismissed by the High Court. In the absence of an appeal, the parties are estopped from re-opening the issue again.
He submits that by virtue of Section 54 of the Evidence Act, Cap. E14. LFN 2004 and the long standing principle of issue estoppel, neither the Court nor the parties herein are at liberty to re-open the issue of damages again citing OGBOGU V. UGNNE GAN (2003) 10 NWLR (Pt.827) Pg. 189 @ 210 – 211.
Urges court to resolve Issue 1 in favour of the Appellant.
On Issue No. 2, the Appellant argues that the Respondent did not discharge the legal burden of proof required of it to succeed before the High Court below. This is because the Respondent failed to adduce evidence to prove the measure of damages (if any) that it may have suffered as a result of the injunction.
He submits that no evidence was given on the issue of the number of trips the vehicle in question made per week while in service before the detention and the totality of the trips made in the course of the contract.
That the Respondent failed to adduced evidence on the outgoings and sundry expenses such as the cost of fueling, wages of the driver and assistant, maintenance, and insurance which is fatal to its case. In other words, the Appellant contends that the Respondent failed on the totality to give evidence of the actual cost it would have incurred less the profit margin which is the measure of damages the Respondent would have suffered as a result of the Injunction.
That the High Court had already noted that although evidence was elicited from the Appellants’ witness that the cost of fueling and maintenance of the Trailer will also depend on the state and age of the Trailer, the Appellant humbly submits that the Respondent failed to adduce evidence on the state and age of the Trailer at the time of its detention which are facts that would had impacted on the earning capacity of the Trailer.
He submits that the Respondents’ failure to particularize the heads of his claims and how it suffered damages, but merely making a bogus claim for the sum of N39,332,267.25k is fatal to the Respondents’ case. That failure of the Respondent to adduce evidence in the actual cost of outgoings and logistics leaves much to be desired and fatal to the Respondent’s claim.
He submits that the High Court, having found that the Respondent has failed to prove his case ought not to have awarded damages in favour of the Respondent.
That the award by the High court is synonymous with giving a party what he has not asked for.
Urges court to reverse the Judgment of the lower court.
On Issue No. 3, he submits that a party against whom an order of injunction is made has a duty to mitigate his loss. That the Respondent ought to have taken steps to apply for a variation of the order in appropriate circumstances, for instance to enable business steps to be paid and allow a business to continue to be conducted – RE: DRP FUTURE LTD (1989) 1 WLR.778 @ 786 – 787.
That the Respondent failed to apply for the order to be set aside. Rather, shortly before the return date of 12/05/97 for hearing the motion on Notice, the Respondent on 9th of May 1997, filed its Statement of Defence and counter-claim as well as a Notice of Preliminary Objection.
He submits that the various processes filed by the Respondent in Court contributed to the period the trailer was detained.
He submits that the High court erred in law by holding that the Respondent did not fail to mitigate its loss on the facts of this case notwithstanding, the clear position of the law that a party ought to mitigate its loss where damages is suffered.
He argues that in the instant case, the Respondent alleged that he suffered damages as a result of the grant of the injunction by the High Court, but failed to adduce evidence to show how it took steps to mitigate its loss.
Urges Court that the lower Court had no jurisdiction to entertain the motion of 17/11/05 after delivering its final Judgment. That damages awarded the Respondent were not supportable by the evidence before the High Court.
In his Brief of Argument the Respondent submits that the two Rulings are separate and distinct as the issues they decided cannot be said to be the same.
That the Ruling of 13th August 2006 decided specific issues including the issue of Jurisdiction, functus officio and issue estoppel. In the Ruling of 11th July 2008, the learned trial Judge rejected the Appellants’ invitation to her to overrule her earlier decision in the Ruling of 13th April 2006 on the same issue of Jurisdiction functus officio, and issue estoppel.
That the failure of the Appellant to Appeal against the Ruling of 13th April 2006 is fatal to its case. That the issues of lack of Jurisdiction, functus officio and issue of estoppel raised in this appeal against the Ruling of 11th July 2008 are caught by the principle of res-judicata Issue estoppel and or abuse of court process, and that same is incompetent and this Honourable Court lacks the Jurisdiction to entertain same.
The argument that the Respondents’ application dated 3rd October 2000 was contested by the parties and was subsequently dismissed by KEKERE EKUN J. (as she then was) in her Ruling of 8th March 2002 and as such both the parties and the Court cannot re-open the issue is caught by the principle of Res Judicate/issue estoppel as the same issue and argument has been put up by the Appellant in opposition to the Respondents’ application dated 17th November 2005 and was finally decided on the 13th of April 2000 in a Ruling of Adesanya J.
The fact that the Appellant failed to appeal these findings, of 13th April 2006, means he is bound by then and cannot now argue to the contrary
That the Court in the Ruling of 8th March 2002, did not determine the Respondents’ application to enforce the undertaking as to damages on its merits, and therefore did not foreclose the right of the Appellant to enforce the undertaking as to damages. What she discussed for the procedure adopted by the Respondent in an attempt to enforce the undertaking as to damages.
He urges Court to reject all the Appellant’s arguments as two issue is caught by the Principle of Res Judicate /Issue Estoppel, it is an abuse of Courts process, and this Court has no jurisdiction to entertain it.
Submits that the Appellant has particularly admitted the claim of the Respondent to the tune of N3,048,423.20. Therefore the Judgment in respect of that sum is in order.
THE CROSS APPEAL
While adopting the introduction and statement of facts in Paragraphs 1.01 and 2.01-2-06 of the Respondents’ brief of Argument, the Cross Appellant submits that there is a Notice of Cross Appeal which contains nine grounds of appeal- Pages 127 – 134 of the additional Record.
The Cross Appellant has proffered nine (9) issues for determination
ISSUE NO. 1
The Cross Appellant submits on Issue No. 1 that it is either the detention is lawful or unlawful. If the detention of the trailer was lawful, then the Cross Respondent will not incur any liability as a man cannot be penalized for doing a lawful act. If however, the detention is unlawful, then the Cross Respondent will have to be penalized or will have to compensate the cross Appellant for unlawfully detaining the cross Appellants’ 30 tonnes trailer for 3 years and 24 days.
Submits that the order of Mareva injunction dated 24th March 1997 was made without jurisdiction. Therefore the detention of the cross Appellants’ 30 tonnes trailer with registration No. BD 4053A between 24th March 1997 and 17th April 2000 pursuant to the mareva injunction made without jurisdiction was a nullity in law.
That this unlawful order is what weighed on the mind of the Judge in the assessment and award of damages to the cross Appellant.
On issue No. 2, he submits that what should be asked now is what is the quantum of damages that the Cross Appellant is entitled to for the unlawful detention of its 3 tonnes trailer? He submits that the learned trial Judge and the parties were bound by the previous decision of the court where it held that the Cross Appellant is entitled to damages at the rate of the applicable tariffs per day as per the contract between the parties for the entire period of unlawful detention of the trailer, which is the same trailer unlawfully detained by the Cross Respondent between 24th March 1997 and 17th April 2000 pursuant to the unlawful order of mareva injunction.
That after the final Judgment of the Court below dated 15th November 2005 an elaborate enquiry as to damages because largely unnecessary as the Court was bound to apply its previous decision for the unlawful detention period of 17th January 1997 to 23rd March 1997 to the unlawful detention period of 24th March 1997 to 17th April 2000.
That from the facts of this case, between 24th March 1997 and 17th April 2009, the Cross Appellants’ 30 tonnes trailer was detained under an order of mareva injunction which this Court on the 17th of April 2000 held was a nullity.
That the legal implication of the nullity of the order of mareva injunction dated 24th March 1997 is that the tort of detinue of unlawful detention of the Cross Appellants’ trailer which the learned trial Judge in her final judgment dated 15th November 2005 found commenced on 17th January 1997, did not in fact terminate on 23rd March 1997, but rather the tort continued unabated until 17th April 2000. It is therefore clear that the unlawful detention of the Cross Appellants; trailer by the cross Respondent was for the period 17th January 1997 to 17th April 2000. The Court below had awarded damages to the Cross Appellant for the period 17th January 1997 to 23rd March 1997. What was left for the Court below to do was to award damages for the remaining period of 24th March 1997 to 17th March 2000, using the same basis of the Cross Respondents’ tariffs which it used for the period 17th January 1997 to 23rd March 1997. Urges that different compensation principles in the award of damages should not apply.
Submits that by the principle of Issue Estoppel, the Court below as well as this Court are bound in law to use the same compensation principle in the award of damages it used for the period 17th January 1997 to 23rd March 1997, also for the period of 24th March 1997 to 17th April 2000.
He submits that he is entitled to the total sum of N41,989,167.25 or in the alternative the sum of N39,258,900.00. This is because the sum of N39,232.267.25k is the sum which the cross Appellant is entitled to on its 30 tonnes trailer as per the contract between the Cross Appellant and the Cross Respondent using the two applicable tariffs of the Cross Respondent for the period 24th March 1997 to 17th April 2000. On the other hand, the sum of N2,656,900.00 is the sum that the Cross Appellant is entitled to, being the amount required to put the unlawfully detained 30 tonnes trailer in a road worthy condition. That Exhibits D and E were the applicable tariffs between 24th March 1997 and 17th April 2000.
ISSUES NO 3 & 4
Arguing Issues 3 and 4 together, he reiterates his posture that Exhibit “F” is fair and reasonable and not being objected to by the cross Respondent, it stands, and this Court has no option but to accept exhibit “F”. That this Court by the authority of the Supreme Court case of WIEDEMANN V. OLUWA (supra), is duty bound to provide the Cross/Appellant with the remedy of recovering the costs of repairs.
On Issue No. 5, he submits that the constitution of this suit, did not terminate the contract between the parties. There is no term on the contract which stipulates that the commencement of legal action automatically meant the termination of the contract between the parties.
That even though the institution of this suit on 11th March 1997 by the cross respondent was in breach of the contract between the parties, the Cross Appellant as the innocent party is entitled to treat the contract as subsisting as it has done even up till date. Accordingly the Cross Appellant he submits, is entitled to base its claims on the contract between the parties throughout the period of unlawful detention of its trailers.
That Exhibit ‘C’ which is the contract between the parties does not provide anything to the effect that the commencement of this suit terminates the contract.
He submits that according to the contract between the parties, the contract can only be terminated in accordance with Clause 6(1) of the contract document titled “CADBURY NIGERIA PLC, TERM5 AND CONDITIONS FOR CADBURY NIGERIA PLC TRANSPORTERS” Pages 46 – 48 of the Record of Appeal.
He submits that there is nowhere in the contract that it is stated that the commencement of legal action by either party automatically means the termination of the contract.
That the learned trial Judge therefore erred when she held that the commencement of legal action by the Cross Respondent terminated the contract between the parties.
Urges this Court to hold that the contract is still valid and subsisting.
ISSUES NO. 6 &7
On the 6th and 7th issues, which he argues together, he submits that he adopts on all his arguments in Issue 2 -5.
He submits that the learned trial Judge having held that the Cross/Respondents’ tariffs issued pursuant to the contract between the Cross Respondent and Cross-Appellant are not applicable in assessing damages due to the Cross-Appellant, the learned trial Judge was in error, when she solely relied on the said inapplicable Cross Respondents’ tariffs in determining the damages due to the Cross-Appellant which error occasioned a miscarriage of justice.
He submits that from record, the evidence led by the Cross/Appellant in proof of the sum of N36,602,000.00 as the average prevailing market hiring rates for a 30 tonnes trailer between 24th March 1997, and 17th April 2000 was unchallenged and uncontroverted. The Cross/Respondent refused and or failed to Cross-examine the Cross-Appellants’ witnesses at the inquiry.
He submits that in Paragraphs 27-34 of the further affidavit of Prince Iyke Tabanmi, which stated that the hiring rates for the period 24th March 1997 and 17th April 2000 varied from time to time due to the general inflationary trend in the Nigerian economy. However, the average prevailing market hiring rates within the period was issued in arriving at the figure of N36,602,000.00. This evidence was not denied by the Cross Respondent in his two counter affidavit filed.
Submits that from the evidence before this Court, there is conclusive proof in law that using the average prevailing market hiring rate of 30 tonnes trailer between 24th March 1997 and 17th April 2000, the sum of N36,602,000.00 is the total being amount due to the Cross Appellant for the unlawful detention of its 30 tonnes trailer for the said period by the Cross Respondent.
Issue No. 8.
He submits that there is no laid down authority which says that damages in excess of the value of an unlawfully detained chattel cannot be awarded to an Appellant whose reverse earning chattel has been unlawfully detained by the Respondent. He submits that the Cross/Appellants’ 30 tonnes trailer unlawfully detained by the Cross Respondent is a reverse earning chattel of the Cross-Appellant. It is therefore, he submits, entitled to the full market rate of hiring for the whole period of detention.
Urges Court to hold that the Cross to hold that the Cross Appellant is entitled to the sum of N39,332,262.25 being the hiring cost of the 30 tonnes trailer for the entire period of unlawful detention and also the sum of N2,656,000.00 being the cost of repairs to make the unlawful detained 30 tonnes trailer road worthy again.
On Issue No. 9,
And on the issue of interest, the Cross Appellant submits that awarding the Cross-Appellant the sum of N3,048,423.20 as damages, the learned trial Judge refused to award any interests thereon.
He submits that the Cross-Appellants’ claim before the lower Court was a monetary claim in a commercial transaction which naturally attracts interest.
He submits that the Cross-Appellant claimed interest at the rate of 25% per annum on any Judgment sum awarded in its favour by the lower Court.
He argues that the award of damages in the sum of N3,048,423.02 in favour of the Cross-Appellant was an acknowledgement by the learned trial Judge that the awarded sum ought to have been paid to the Cross-Appellant by the Cross-Respondent on or before the date the cause of action arose (i.e 17th April 2000). Having not paid the said sum of N3,048,423.02 to the Cross-Appellant, the cross Appellant was thereby deprived of the use of the said sum since at the very latest on 17th April 2000 and therefore ought to be compensated for such deprivation between the said 17th April 2000 and whenever the Judgment sum is finally liquidated by the Cross Respondent.
He submits that by law i.e. order 35 Rule 4 of the Lagos State High Court (Civil Procedure) Rules 2004, the cross Appellant was legally entitled to a minimum interest of 10% per annum on the Judgment sum of N3,048.423.20. The cross Appellant did not have to prove this, as it is a right conferred on it by law.
The Cross Appellant urges Court to resolve all the nine issues in favour of him.
The Cross Respondent while adopting the points in paragraphs 2 to 15 of the Appellant Briefs of Argument dated 28/4/12 proffers three (3) issues for determination but argues that the nine issues for determination are word for word repetition of the Grounds of Appeal. That decidedly, this inelegant approach adopted by the Cross Appellant is analogous to arguing the Grounds of Appeal in the form of issues for determination. He urges Court to discountenance the issues formulated by the Cross Appellant and submits that the following are the issues for determination.
Arguing Issue No. 1, the Cross respondent submits that there are legal principles that should guide the Courts in conducting inquiry into damages occasioned by wrongly granted in injunctions. That decidedly it is the proximate and national damages arising from such a breach. SMITH V. DAY (1882) 21 CHD. PAGE 421, HOFFMAN – LA ROCHE & CO AG. V. SECRETARY OF STATE (1975) A.C. 295 AT 361- That the measure of damages in undertaking for damages (as in breach of contract) is to restore the Claimant so far as money can do it, in the same position as he would have been had the contract been performed. The damages must be such as are national and probable consequences of the breach, or damages within the contemplation of the parties. X.S. (NIG) LTD V. TAISEI (WA) LTD. (2006) 15 NWLRD 533, 536 @ 557.
He submits that the sum of N3,048,423.20 awarded the Cross Appellant, represents the national and probable consequence of the detention of the Cross Appellants’ vehicle pursuant to the mareva injunction obtained by the Cross Respondent, being the profit margin the Cross Appellant would have earned between 24/3/97 and 17 /4/2000 if the vehicle had operated normally.
The position of the law that a Defendant who is deprived of the use of a trading vessel as a result of an order of injunction is only entitled to recover compensation for loss caused by the making of the order. -See COMMERCIAL INJUNCTION BY STEVEN GEE @ 308; U.B.N. v. SPARKING BREWERIES LTD (1997) 5 NWLRD PT. 505 PG. 344.
The detention of the trailer between 24/3/97 and 17/4/00 pursuant to the mareva injunction of 24/3/97 was unlawful, null and void and without jurisdiction. That this line of argument stems from a wrong appreciation of the purport of the Judgment of the Court of Appeal delivered on 17/4/2000.
Citing OSAFILE V. ODI (NO. 1 (1990) 3 NWLR PT. 137 @ 169, he submits that the lack of legal force in such decision does not detract from the fact of its factual existence.
That whilst it is true that a Judgment declared void ceases to have any judicial force, it does not render what has been done before it was declared void, unlawful or invalid. That it is because the undertaking attached to the injunction is preserved, that the Cross Appellant is able to enforce it.
That the High Court was right in not awarding the cross Appellant the sum of N41,989,167.25 or alternatively the sum of N39,332.267.25 as that would have been in excess of the value of the vehicle and absurd as decided by the apex court in Weldman.
That the case of Ordia V Piedmont is unhelpful to the Cross Appellant. In that case, damages was not granted for the period of 10 years of detention, rather, it was granted for just 180 days.
That the claim of the Cross Appellant that it will cost the sum of N2,656,900.00 to repair the Trailer is a head of claim that smacks of special damages and as such must be proved with credible and uncontroverted evidence.
That the sums awarded to the Cross-Appellant as damages for the detention presumes that the vehicle was road worthy all through the detention period. Accordingly if the claim for costs of repairs is to be given serious consideration, then some of the days for which damages have been awarded must be discounted. The Cross Appellants’ criticism of the trial Judge on double compensation is therefore unjust and one taken out of context.
Urges Court to uphold the decision of the High Court, and that the evidence of the only witness of the Cross Appellant is lackluster and totality unhelpful on the point.
That the focal point for the inquiry embarked on by the Court is to determine the amount of money the Cross Appellant would have made if its Trailer had not been detained. In other words, the amount the Cross Appellant would have made of the Trailer had been functional and not if the Trailer had been parked for 3 years.
That the argument on cessation of Contract on institution of action is an academic question. That the issue has no hearing on the inquiry on damages undertaken by the trial Court.
He submits that even if a contract subsisted between the parties prior to the institution by the Cross Respondent of this action on 11/3/97, such contract has terminated by the cross actions’ instituted by the contracting parties alleging infractions against each other.
He submits that the Cross Appellant further contends that it was not given fair hearing because the High Court did not award it damages on the alternative claim. He claim that if his claim based on Exhibit C fails, it should be awarded damages based on the average market hiring rate of the Trailer for the period of the injunction.
He submits that the court rightfully gave the adequate compensation, but that the alternative monetary claim of N39,332,202.25 is patently wrong, because it makes no allowance for the various running cost deducted from the primary claim. That claim was based on what was termed “average prevailing market hiring rates” of which there is no evidence of the particular market I which the witness conducted a survey, if any. Submits that the purported rates must be rejected in its entirety also because it does not take into consideration the investable costs of the outgoing.
Submits that both the primary and alternative claim is devoid of sufficient evidence to convince the court that either of the claims should be awarded. That special damages must be specifically pleaded and strictly proved by credible evidence – ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY & ANOR VS. RAYMOND EKWENEM (2009) 13 NWLR Pt. (1158) 410 AT 434.
On Issue No. 2
He submits that the cross Appellant had argued that by virtue of its Ruling of 13/4/06, the lower Court is stopped from delivering into the assessment of inquiry as to damages.
That the argument that the Ruling of 13/4/06 and 15/11/05 based the trial Judge from undertaking independent assessment of the extent of damages suffered by the cross Appellant is a misconception of the law given that the undertaking ripened for enforcement upon the decision of the Court of Appeal, in CA/L/320/98 delivered on 17/4/2000.
That if the Cross Appellant argued that by virtue of its Ruling of 13/4/06 the lower Court is estopped from delving into the assessment of inquiry as to damages, why did it file a motion to enforce the undertaken as to damages given by the Cross Appellant in support of the mareva injunction?
Issue No. 3.
He argues that the Cross Appellants’ argument that it is entitled to interest finds basis in law.
He submits that until 11/7/08 when damages in the sum of N3,048,423.20 was awarded in favour of the Cross Appellant, the cross Respondent did not owe the Cross Appellant any amount upon which interest could be claimed. Therefore the Cross Respondent cannot be said to have deprived the Cross Appellant of any money before the damages have awarded.
He submits that decidedly interest on a Judgment debt is interest after adjudication and not before Judgment.
Urges Court to hold that the prayer of the Cross Appellant did not include claim for interest.
The affidavit is documentary evidence and not a place for relief or prayer. To expand one relief through an affidavit would breach the provisions of section 115(1) and (2) of the Evidence Act 2011.
That Order 35 Rule 4, of the High Court (Civil procedure) Rules 2004 cited by the Cross Appellant does not avail him as that rule is discretionary and does not impose an obligation on the trial Court, to award interest.
In his reply Brief filed on 8/3/13 the Cross Appellant submits that it was by the directive of the learned trial Judge that inquiry shall be made to the Court by way of affidavit evidence. This is why the Cross Appellant filed affidavit making claims including claims for interest. That the Cross Respondent argued that the Cross Appellant did not claim interest is a new issue which can only be properly raised in this Court with leave of Court being a new issue. The Cross Respondent has not obtained such leave, and the argument as to interest is incompetent and must be struck out.
Submits that 10% is the minimum interest rate that can be awarded on a Judgment sum.
On Issue No. 1 in the main appeal.
No doubt, the High Court per Adesanya J was estopped from examining the application of 17/11/05, given that a similar application (on undertaking as to damages had been brought before the High Court of Lagos State on 3/10/10.- page 167 of the Record of Appeal), which was considered on the merit and subsequently dismissed on 8/3/02- pages 753 – 775 of the Record of Appeal.
In the application of 3/10/2000, the Respondent had sought for
“An order directing the plaintiff/Respondent to pay the Defendant/Applicant the sum of N38,332,267.25 (Thirty-Nine Million three Hundred and Thirty-two thousand two Hundred and sixty seven Naira, twenty five kobo) being the damages/losses occasioned the Defendant as a result of the injunction the Plaintiff/Respondent obtained from this Honourable Court on 24th March 1997 permitting it to detain the Defendant/Applicants’ 30 tonnes Mercedes Benz Trailer with registration No. BD 4053 A from 24th March 1997 to 17th April 2000 which sum is calculated based on the contract or agreement between the parties using the Defendants’ stipulated and applicable two tariffs for its transporters between 24th March 1997 and 17th April 2000.”
There was also a relief sought in the alternative.
While in the application of 17/11/05 the Respondent sought
“An order of the Honourable Court enquiring as to the amount of damages sustained by the Defendant/Applicant by reason of the mareva injunction granted by this Honourable Court on 24th March 1997 which permitted the Claimant/Respondent to detain the Defendant/Applicants’ 30 tonnes trailer with registration No. BD 4053A from 24th March 1997 to 17th April 2000. An order of Court directing the Claimant/Respondent to pay and or indemnify the Defendant/Applicant for the damages that may be found to have been suffered by the Defendant/Applicant as a result of the grant of the order of mareva injunction granted by this Honourable Court on 24th March 1997”.
It is pertinent to note that the present appeal is against the Ruling of 11/7/08 and not against the Ruling of Adesanya delivered on 13/4/06. However, it seems to me that the two Rulings are in respect of the same.
While the Ruling of 13/4/2006 granted the first prayer of the Respondent (i.e directing that inquiry be made) the Ruling of 11/7/08 granted the 2nd prayer i.e. directing the Appellant to pay and indemnify the Respondent for the damages that may be found to have been suffered as a result of the order of injunction granted by the High Court on 24th/3/07.
The issue of damages reflects in the two applications, and since same has been considered and dismissed in the Ruling of Kekere-Ekun J, it cannot be revisited. Their only resort was to appeal the decision or an order setting same aside. Both parties in my view are stopped from re-opening the issue against Kekere-Ekun J (as he then was dismissed the application, and indeed Adesanya J acknowledged this fact (i.e. that a similar application had been brought before the High Court which had dismissed it.)
By virtue of section 54 of the Evidence Act 2004, neither the parties nor the parties are at liberty to re-open the issue of damages again – OGBOGU V. UGWUEGBU (2003) 10 NWLR (Pt.827) 189 @ 210 – 211.
This issue is resolved in favour of the Appellant and against the Respondent.
Issue No. 2.
Sections 135 and 137 of the Evidence Act, places the burden of proof in civil cases on the party who will fail if no evidence is given on either side.- The burden is static and does not shift from the Claimant to the Defendant.
In its Ruling of 13/4/2006 the High Court held that the Respondents’ claim is one for special damages, which in law must be strictly proved. There is nothing on record which shows that the Respondent adduced evidence to prove the measure of damages (if any) that it may have suffered as a result of the injunction.
Here, it is apparent that the Respondent relied on the Appellants’ applicable tariffs or in the alternative on the average prevailing market hiring rates as the basis for calculating the damages it suffered as a result of the injunction.
There is no evidence on the issue of the number of trips the vehicle in question made per week while in service before the detention (or the number of trips made by other vehicles of similar tourage) and the totality of the trips made in the cause of the contract. But there was no evidence oral or documentary on this issue.
The Respondent did not adduce evidence on the outgoings and sundry expenses such as the cost of fuelling, wages of the driver and assistant, maintenance, and insurance. In other words, the Respondent failed to give evidence of the actual cost it would have incurred less the profit margin. This is the true measure of the damages the Respondent would have suffered as a result of the injunction.
Failure to adduce there pieces of evidence is fatal to the Respondents case.
Notably the Respondent had failed to adduce evidence on the state and age of the trailer at the time of its detention. This would have shown the earning capacity of the trailer. The Court did not advert its mind to the more case scenario, but the best case scenario, and this is not just and equitable.
It is only reasonable to say and indeed equitable that failure of the Respondent to adduce evidence on the actual cost of outgoings and logistics is fatal to the Respondents’ claim. I agree with submission of the Appellant that the basis of calculation by the High Court is synonymous with giving a party what he has not asked for-Paragraph 51 of the Brief of Argument. The Courts frown at this – AJIKAM V. ANSALDO (NIG) LTD (1991) 2 NWLR (PT.173) 359 AT 378 paragraphs b – d, ADO IBRAHIM AND CO LTD. V. B.C.C. LTD (2007) 15 NWLR (PT. 1058) 538 @ 575 PARAGRAPH C.
This issue is resolved in favour of Appellant and against the Respondent.
Issue No. 3 Learned Counsel for the Appellant has argued that the Respondent should have mitigated his loss, and this would include taking steps to apply for a variation of the order made – to enable him pay off debts and allow his business continue to be conducted Citing DRP FUTURES LTD (1989) 1 NWLR 778 @ 786-787.
He submits that the Respondent had the opportunity to seek a variation or discharge of the Courts order but failed or neglected to do so.
The Respondent sought and obtained an order to keep in its premises the Respondents’ trailer. He did not apply for an order to set the order aside. Rather he filed a Statement of defence and Counter-Claim as well as Notice of Preliminary Objection.
The Appellant had argued (rightly in my view) that the Respondent ought to have applied to the High Court at the earlier opportunity for a discharge or variation of the order.
Issue No. 3 is resolved in favour of the Appellant and against the Respondent.
On the Cross Appeal.
Notably is that the Cross Appellant has proffered nine issues for determination. A cursory look at the issues for determination even as the Cross Respondent noted showing that it is word for word repetition of the Grounds of Cross Appeal filed on the 7th of October 2008 (Pages 127 – 134 of the Record of the Additional Record of Appeal.
It is obvious that the Cross Appellants’ issue No. 1 is the same as Ground 6 of the Grounds of cross Appeal; Issue No. 2 is the same as Ground No. 3 of the Cross Appeal Issue No.4 is the same as Ground No. 2 of the Cross Appellant; Issue No. 5 is the same as Ground No. 7 of the Cross Appeal; Issue No. 6 is the same as Ground No. 8 of the Cross Appeal; Issue No. 7 is the same as ground No. 9 of the Cross Appeal; Issue No. 8 is the same as ground No. 4 in the Cross Appeal, while Issue No.9 is the same as Ground No.5 in the Cross-Appeal.
The Cross Respondent has urged this Court that the nine issues for determination are word for word repetition of the Grounds of Appeal, and that decidedly this is elegant and same as analogous to arguing the Grounds of appeal in the form of issues for determination. Urging Court to discountenance the issues formulated by the Cross Appellant. The Cross Respondent has proffered three issues for determination which are
It seems to me that I shall adopt the issues proffered by the Cross Respondent as same accords move with the real issues in controversy in this matter. To adopt the issues for determination of the cross Appellant would amount taking the Grounds of Appeal for Issues for determination.
Issue No. 1.
In CA/L/462A/2007 I had addressed a similar issue and I adopt my reasoning there that the learned trial Judge properly justified itself in the determination of the damages claimed by the Cross-Appellant.
This issue is resolved in favour of the Cross Respondent and against the Cross Appellant.
Issue No. 2
In CA/L/462A/2007, I had also addressed this issue, to the intent that the High Court was estoppels from undertaking an independent assessment in the determination of the cross Appellant’s motion dated 17/1/05, in view of the High Courts’ decision of 10/11/2005 and 13/4/2006.
This issue is resolved in favour of the Cross/Respondent and against the Cross Appellant.
Issue No. 3
In CA/L/462A/2007, I also had addressed this issue for determination. It is my view that the cross Appellant is not entitled to interest on the damages awarded, as the damages were wrongly awarded in law. This issue is resolved in favour of the Cross-Respondent and against the cross Appellant.
The result is that the Appeal succeeds while the Cross Appeal, lacking merit is hereby dismissed as unmeritorious with N30,000.00 costs in favour of the Cross Respondent.
AMINA A. AUGIE, J.C.A.:
I have earlier read the lead Judgment just delivered by my learned brother, Pemu, JCA, and I agree with his reasoning and conclusion. He resolved all the issues raised by the parties in the main Appeal and Cross Appeal, and I will only say a few words on the issue of special damages and the lack of proof thereof.
It is well settled that special damages must be supported by evidence, which will determine the claim by arithmetical calculation. This is more so when the claim is for anticipated earnings. See Blackwood Hodge Nig. Plc. v. Omuna Construction Co. (2002) 12 NWLR (Pt. 782) 523; R.C.C. (Nig.) Ltd. v. Edomwonyi (2003) 4 NWLR (Pt. 811) 513; Umuoetuk v. UBN Plc. (2002) 3 NWLR (Pt. 755) 647 -see also UBA Plc. V. Samba Petroleum Co. Ltd. (2002) 16 NWLR (Pt. 793) 361, where Salami, JCA (as he then was) pointed out that proof of loss of earnings “entails income and outlay”. In this case, the Respondent failed to provide such details, and that failure is most certainly fatal to its case.
It is for this and the other reasons well adumbrated in the lead Judgment that I also allow the Appeal and dismiss the Cross Appeal. I also abide by the consequential orders in the lead Judgment, including the order as to costs.
CHIMA CENTUS NWEZE, J.C.A.:
I had the advantage of reading in draft, the judgment just delivered by my brother Pemu, JCA. I agree with his conclusion.