Addidon Nigeria Limited V. Panabiz International Limited & Anor (2016)

LawGlobal-Hub Lead Judgment Report

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

 The instant cross appeal, just like the main appeal [CA/C/227/2009], is equally a fall-out of the judgment of the High Court of Akwa Ibom State in suit No. HEK/148/2005, delivered on July 7, 2009. By the said judgment the Court below, Coram Ita G. Mbaba J. (as he then was) granted some of the declaratory reliefs sought by the present Cross – Appellant against the 1st cross-Respondent. The cross – Appellant was the 1st Respondent, while the 1st and 2nd Cross – Respondents were the Appellant and 2nd Respondent in the said main appeal, respectively.

It is trite, the vexed judgment of the Court below was to the following conclusive effect :
I hold therefore that the 1st Defendant breached the contract it had with the plaintiff when it failed to pay for service rendered to it (1st Defendant) as per the claims in Exhibit 23, which was not disputed upon entering into a conflicting contract with the 2nd Defendant though with the ratification of the plaintiff, as per Exhibit 22.
Accordingly, this case succeeds only on that point and the plaintiff is entitled to damages

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against the 1st ‘Defendant as per the claims (relief 34 (H) of the statement of claim) that is to say, the sum of Two Million, Nine Hundred and forty Nine Thousand, One Hundred and Thirty Nine Naira (N2,949,139.00) only; being the balance of the amount due and owning to the plaintiff as debt due as commission for the supply of Panasonic machines and consumables for the period of March and April, 2005
Having held the said money of the plaintiff against the will and interest of the plaintiff, and for the benefit of the 1st Defendant upon the breach of the said contract, the plaintiff would be entitled to damages, generally.
I therefore, award five million (N5,000,000.00) to the plaintiff against the 1st Defendant, as general damage.
I do not think the 2nd Defendant should be held responsible for the said end of the relationship between the plaintiff and the 1st defendant in the service of the 2nd Defendant. Accordingly the 2nd Defendant is not liable.
The 1st Defendant shall pay interest on the judgment debt at the rate of 10% per annum from the date of judgment until same is fully liquidated.
The 1st Defendant shall also pay the cost of

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this action assessed at twenty thousand naira (N20,000.00) only.

See pages 278 – 320, especially at pages 319 – 320, of the record of appeal. Not unnaturally, the Cross-Appellant was equally dissatisfied with some parts of the said judgment. Thus it was granted leave and extension of time by this Court to file the notice of cross Appeal thereof on October, 4, 2010. The said notice of Cross of Appeal is to the effect thus:
GROUNDS OF CROSS – APPEAL
GROUND ONE
The learned trial judge erred in law when he held that Mr. Idongesit Ekpanya (PW1) who witnessed exhibit 22 as a witness of the 1st cross-Respondent, the cross- Appellant was liable to the contract contained in Exhibit 22 and therefore stopped grown alleging the breach of distributorship agreement contained in Exhibit 1, 11, 12, and 13.
PARTICULARS
GROUND TWO
The learned trial judge erred in law and misdirected himself after findings of facts that the 2nd Respondent induced and aided the breach of the contract of distributionship contained in Exhibit 1, 11, 12 and 13 but later somersaulted in exonerating the 2nd Cross-Respondent from liability and consequently refused and failed to award

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damages against the 2nd Cross-Respondent.
GROUND THREE
The learned trial judge erred in law when it failed to follow the principle laid down in awarding damages against the 1st and 2nd cross-Respondents having made a finding of fact that the 1st and 2nd cross-Respondents were guilty of the breach of contract.

The cross Appellant’s brief of argument was filed on 09/3/12 by Victor Ukutt, Esq. It contains a total of 16 pages. At page 6 of the said brief, three issues have been couched, viz:
(a) Whether a party who signs a contract as a witness can be liable to the obligations contained therein so as to stopped (sic) him from alleging breach of contract in respect thereof and whether the Managing Director of a company can it so facto bind a company when acting in his capacity as the managing director without boards resolution and approval. (Ground 1 of the notice of appeal).
(b) Whether the learned trial judge exercised his discretion Judicially and judiciously when after finding that the 2nd Cross-Respondent was a party to the breach of contract in Exhibit 13 but failed/refused to award damages against the 2nd Cross-Respondent in respect

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of the breach.
(Ground 2 of the notice of Cross-Appeal).
(c) Whether the learned trial judge was right when he held 1st and 2nd Respondents liable for breach or contract and laid down the principles as stated in the said contract to award damages against the Cross-respondents but failed and/or refused to follow the said principles as contained in the said contract in awarding damages against the Cross-Respondents.
(Ground 3 of the notice of Cross-Appeal.)

On the other hand, the 2nd Cross-Respondent filed a reply to the cross-Appellant’s brief on 07/2/2013. It spans six pages. At page 2 thereof, three issues have been raised, viz:
1. Whether the learned trial Judge in his judgment ever found that the Cross-Respondent was liable for breach of contract to warrant the award of damages against it.
2. Whether the Courts can grant to the cross- Appellant a relief not sought at the trial Court
3. Whether the cross-Appellant can raise a new issue on Appeal.