Nsit Ibom Local Government & Anor V. Obong Lawrence Uwem Iyoho (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Akwa Ibom State High Court in Suit No. HET/15/2004 delivered on 15/4/2008.

The Plaintiff’s claim against the Defendants is for damages for breach of agreement. In the writ of summons and paragraph 19 of the Statement of Claim the Plaintiff pleaded as follows:

“19. The Plaintiff is affected by the breach of this agreement and has suffered damages. WHEREFORE the Plaintiff claims against the Defendants jointly and severally as follows:

1. A DECLARATION that the Defendants letter Reference No. NBLG/AD/S/57/VOL.11/49 dated 5th August, 2003 purporting to terminate the Plaintiff’s legal retainership with the 1st Defendant and every action taken in pursuance of the said letter all amount to a Breach of the Agreement signed by the 1st Defendant and ultra vires null and void and of no effect whatsoever.
2. The sum of N2.5million Naira (Two Million, Five Hundred Thousand only) being special damages following the wrongful termination of the Plaintiffs appointment for the year 2004/2005.

PARTICULARS OF SPECIAL DAMAGES

(a) N300,000.00 (Three Hundred Thousand Naira) representing an annual Retainership fee payable to the Plaintiff as per paragraph 2 of the Agreement of the parties and such Retainership year commencing on the 11th day of April, 2004 and terminating on the 10th day of April, 2005 next and for every year subsequent until this case is determined, the judgment sum liquidated and the agreement properly terminated.

(b) N2.2million Naira (Two Million, Two Hundred Thousand Naira) only representing annual loss of income as transport to and from court and service charge as per paragraph 3 of agreement signed between the parties and such year commencing on 11th April, 2004 and terminating on 10th April 2005 and so following each subsequent year until this suit is determined, the judgment sum paid and the agreement properly terminated.”

The Defendants filed a memorandum of appearance and later sought extension of time to file their Statement of Defence. The application was granted and the defendants who were originally three in number filed a joint statement of defence on 20/11/2007 after the Plaintiff had testified in-chief. The Plaintiff was not cross examined from 25/7/2007 when he concluded his testimony up to 28/2/2008 when the matter was adjourned to 15/4/2008 for judgment. Judgment was entered in favour of the plaintiff in the following terms:

“Plaintiff is therefore entitled to his claim as per the Writ of Summons as specified in the Statement of Claim to the extent of what the Plaintiff should have been paid between 11th April, 2003 to 10th April, 2005 and the general damages… Consequently judgment is hereby entered in favour of the Plaintiff as per his Statement of Claim in paragraph 19 (1) and (2) thereof”.

(See page 69 of the records).

The Defendants were dissatisfied with the judgment and filed their Notice of Appeal on 16/4/2008 containing one ground of appeal from which a sole issue was formulated for determination as follows:-

“WHETHER from the totality of the evidence adduced in the Suit in the court below and the pleadings in the Statement of Claim of the plaintiff thereof, it could be said that the plaintiff had proved “Special Damages” as required by law as to warrant the court below to have awarded same to him (plaintiff/respondent herein)?”

Although the Respondent stated in his brief that he was adopting the sole issue for determination in the appellants brief with slight modification went further to formulate a second issue. The issues raised by the Respondent in his brief are:

1. WHETHER from the totality of the evidence adduced in the suit in the court below, the pleadings in the statement of Claim of the Plaintiff thereof as well as the pleadings in the statement of Defence of the Defendants thereof, it could be said that the plaintiff had not proved “Special Damages” as required by law to warrant the court below to have awarded same to him, in the absence of any counter evidence whatsoever from the defendants.
2. WHETHER the ground of appeal not being directly related to the sole issue for determination and being a mere academic question “does not render the appeal incompetent”.

The second issue for determination in the Respondent’s Brief is in the nature of a preliminary objection questioning the relationship between the Ground of Appeal and the issue formulated therefrom.