Phenix Associates Limited & Anor V. Hercules Maritime Limited (2009)

LawGlobal-Hub Lead Judgment Report

HELEN MORONKEJI OGUNWUMIJU, J.C.A.

This is an appeal against the judgment of the Federal High Court sitting at Benin city delivered on 12/7/2005 by Honourable Justice I.N. Auta (as he then was).

The facts that lead to this appeal are as follows:
The Respondent as claimant at trial in paragraph 23 of its statement of claim prayed for the following reliefs:
Wherefore, the Plaintiffs claim against the 1st Defendant jointly and severally as follows:
i. N750,000.00 being outstanding balance of invoice No. 1143 due and payable to the Plaintiff in respect of the use of its offshore boat for the tow of 2nd Defendants barge Rio 1 from Port-Harcourt to APG 1 Location, Offshore Ghana;
ii. N2,220,000.00 being outstanding balance of Invoice No. 1141 due and payable to the Plaintiff in respect of demurrage incurred by the 1st Defendant on the MV Hercules Service as per contract;
iii. N609,840.00 being outstanding balance of Invoice No. 1142 due and payable to the Plaintiff in respect of supplies made to the Defendants agent;

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iv. Interest at bank rate for the total outstanding balance of N3,579,840.00 from the month of January, 2001 until payment;
v. N1,500,000.00 being general damages arising from the Defendants breach of the contract including cost of pursuing payment.

The Appellants as Defendants filed their statement of defence and counter-claim with leave of Court. The counter claim was in the following terms:
Whereupon the Defendants counter claims against the Plaintiff as follows:
i. The sum of N3,675,532.35 being the cost of repairs to the barge RIO 1 (VAT inclusive).
ii. The sum of $945,000 for loss of crude oil production for five (5) days.
iii. $62,500 being the costs associated with the shut-down and subsequent reactivation of the well.
iv. N10 million damages for breach of contract.

Other pleadings were filed and the case was tried and decided wherein judgment was entered in favour of the Respondent as per the statement of claim. Hence this appeal.

Notice of appeal was filed on 22/7/05 while the Appellants rely on the amended notice filed on 31/1/2011 deemed filed on 30/3/11. The

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Appellants brief was filed on 21/5/14 and deemed filed on 22/5/14. The Respondents brief was filed on 10/12/14.

In the Appellants brief settled by Margaret I. Mozia Mrs, learned counsel identified five issues for determination stated as follows:
1. Was the lower Court right in allowing the claim of the Respondents in whole when there was no evidence in support thereof? (Distilled from Ground 2)
2. Was the lower Court right in granting the Respondent general damages in a claim founded on breach of contract? (Distilled from Ground 3)
3. Was the lower Court right in dismissing the counter claim of the Appellants whereas there were sufficient evidence of fundamental breaches of the provisions of the contract Exhibit A by the Respondent? (Distilled from Ground 1)
4. Was the lower Court right in granting reliefs 23(i), (ii) and (iii) of the statement of claim despite ample proof of fundamental breaches of the terms of contract Exhibits A by the Respondent? (Distilled from Ground 4)
5. Was the lower Court right in awarding reliefs 23(i), & (ii) of the statement of claim to the Respondent without

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specific pleading and proof of same? (Distilled from Ground 5)

In the Respondents brief settled by O.F Asemokhai Esq, the learned Respondent Counsel identified three issues for determination stated as follows:
1. Whether the Respondent led enough evidence to warrant the trial Court entering judgment in her favour and thereby granting her claim for general damages.
2. Whether the Appellants led any cogent and compelling evidence sufficient enough in proof of fundamental breaches of the provisions of Exhibit A (The contract entered into by them) to warrant the grant of Appellants counter-claim.
3. Whether the reliefs claimed by the Respondent was not covered by the Respondents pleadings and proved by her.