Ijebu-ode Local Government V. Adedeji Balogun & Co. Ltd. (1991)

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G. KARIBI-WHYTE, J.S.C.

I have had little difficulty in deciding this appeal because of the nature of the points argued before us which are common place and replete with earlier decisions of this court.

Before argument, learned counsel to the appellant by motion dated 8th Feb,1990 sought and was granted leave to introduce a new point of law, namely that the judgment of the trial court was a nullity. Learned counsel to the respondent did not oppose the application.

The two issues which will hereafter form the basis of my judgment which are as formulated by learned counsel to the respondents are as follows.

(a) Is there any legal basis for the award of N2,552,108 as general damages to the plaintiff/respondent by the Court of Appeal in substitution for the award of N25 ,000 awarded in that regard by the High Court

(b) Whether or not the judgment delivered in this case by the High Court was a nullity and whether or not it could sustain any appeal to the Court of Appeal”

The above issues were formulated from the grounds of appeal filed and relied upon by the appellant. For ease of reference, I reproduce below the grounds of appeal referred to above.

Ground One

“3 The learned appellate Justices erred in law in basing their decision on facts viz: 20% of contract price of N12.8 million which was not pleaded and which goes to no issue between the parties when pleadings were settled.

Particulars of Error

I. Plaintiff must be held to the case put forward in his pleadings because the object of pleadings is to settle the issues to be tried.

II. The case put forward particularly in paragraph 16 of the statement of claim is that the plaintiff anticipated a net profit margin of 20%. of N2,552,108.00 of the contract on the successful completion of the contract.

III. It is not plaintiff’s case on the pleadings that he anticipated 20% of the contract price put at N12.8 million.

IV. Cases had to be tried on issues specifically pleaded. The issue of 20% of N12.8 million was never raised in the pleadings.