Monier Construction Company Ltd. V. Tobias I. Azubuike (1990)

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AGBAJE, J.S.C. 

On 12th February, 1990, I dismissed the appellant’s appeal summarily subject to the accidental slip of the lower court in the assessment of the damages due to the respondent which I corrected. I indicated then that I would give the reasons for my judgment today. I now proceed to do so.

The plaintiff, Tobias I. Azubuike sued the defendant’s company, Monier Construction Company Ltd. in an Imo State High Court, holden at Okigwe, claiming the following as per paragraph 12 of his statement of claim, since the latter supercedes the writ of summons:-

12 “Wherefore the plaintiff claims from the defendant the sum of N100,000.00 made up as follows:-

(i) N72,000.00 being the value of stone chippings removed on or about 16th and 17th December, 1977 by the servants, agents or workmen of the defendant from the land in occupation of the plaintiff, at Isulabo, Uturu Okigwe, within jurisdiction.

(ii) N20,000.00 being the cost of yams, cassava and other crops destroyed in the plaintiff’s farm in the course of the removal of the said chippings, at Isulabo Uturu aforesaid.

(iii) N8,000.00 general damages.”

Pleadings were ordered, filed and exchanged. The case proceeded to trial before Abai Ikwechegh, J. (as he then was), who after hearing the parties and their witnesses found in his judgment dated 11th June, 1982 for the plaintiff on the issue of liability and awarded him N72,000.00 damages, being the full amount the plaintiff had contracted to sell the stone chippings in question to a company called Hispacon Nigeria Ltd.

The defendant company was not satisfied with the judgment. It appealed against the whole decision to the Court of Appeal Enugu Division.

The defendant lost its appeal on the issue of liability but succeeded partially on the issue of damages. The Court of Appeal, coram Maidama, Akpata, Babalakin, JJ.C.A., as per the lead judgment of Maidama, J.C.A., in which the other Justices concurred ruled as regards the latter as follows:-

“The next finding challenged by the appellant, is the finding that it was liable to pay to the respondent the sum of N72,000.00 as damages. This amount includes the value of the chippings as contained in Exhibit A plus the profit the respondent would have made if he had executed the order in Exhibit D. It was submitted that there was no justification for the award of this amount because evidence led by the respondent showed that exhibit D was issued in August, 1977 and the alleged removal took place on 16th December, 1977. The order expired in February, 1978 and by that time the respondent was away in Benue State and could not have been prevented from executing the order. He was not therefore entitled to receive the amount shown on exhibit D. The learned trial Judge was therefore in error in awarding N72,000.00.

I entirely agree with this submission. In my view the respondent could only be entitled to recover the price of the chippings which according to exhibit A was valued at N64,000.00. In the circumstances this appeal therefore succeeds and it is hereby allowed. The damages awarded by Ikwechegh, J. (as he then was) is hereby set aside and in its place judgment for N64,400.00 as damages is substituted with costs assessed at N250.00 to the appellants”.

The defendant is again not satisfied with the decision of the Court of Appeal but this time, according to its amended notice of appeal, the part of the decision of lower court complained of is as follows:-

“That part of the decision dealing with the capacity of the plaintiff/respondent, and also the issue of the inadmissibility of EXHIBITS “A”, “B” and “D” which non-rejection has brought about the award of N64,400.00 damages against the defendant/appellant even though the appeal was allowed by the Court of Appeal. As a matter of interest and of justice, EXHIBIT “A” reads N62,400. and not N64,400.00.”