Reynolds Construction Company (Nigeria) Limited V. S. I. Edomwonyi (2002)

LawGlobal-Hub Lead Judgment Report

IBIYEYE, J.C.A.

This appeal arose from the judgment of Omorodion, J., sitting in the Benin Judicial Division of the Edo State High Court of justice, in suit No. B/358/91, delivered on the 9th day of February, 1996.

In strict compliance with the Rules of Civil Procedure in the trial court, both the plaintiff and the defendant, filed and exchanged pleadings, which were amended and further amended. I am of the view that in order to appreciate the case for each of the two parties certain relevant averments in the said pleadings should be reproduced. I accordingly, reproduce them.

Paragraphs 1, 2, 3, 5, 7, 8, 9, 10, 11, 12, 13, 14 and 16 of the amended statement of claim and paragraphs 1 and 4 of the defence to the counter-claim read:

“1. The plaintiff is a Nigerian Citizen resident at No. 14 Upper Sakponba Road, Benin City, and is the owner of a large parcel of land lying and situate at Avbiama Area within the jurisdiction of this Honourable Court.

2. The defendant is a company incorporated under the Companies Act of Nigeria and carries on the business of extraction of sand, granite and construction work.
3. The plaintiff avers that sometime in May, 1991, he was approached by the defendant with a proposal to clear an area measuring 2 hectares on part of the plaintiff’s land, situate and lying at Avbiama village.
4. The plaintiff avers that he eventually reached an agreement with the defendant on the understanding that the defendant will pay plaintiff the sum of N4,000.00 (four thousand Naira) ground rent as well as clear two hectares out of the plaintiff’s parcel of land situate at Avbiama village.
5. The plaintiff avers that the defendant claimed to have put the entire agreement in writing paid plaintiff the sum of N4,000.00 (four thousand Naira) and the agreement was signed for and on behalf of the plaintiff, since plaintiff was not only illiterate but also blind. At the trial, the plaintiff may found on this agreement.
6. The plaintiff says that he and the defendant agreed that the land will be cleared on 28/5/91. The defendant assured the plaintiff that before 10 a.m. on that day, they will send three bulldozers so as to enable plaintiff to earn money from his own portion (sic).
7. The plaintiff avers that on 27/5/91, two agents of the defendants came to the land and informed plaintiff’s Agent, who works with plantiff that, they will be coming to clear the land on 28/5/91. The plaintiff should stop all the customers, who come to the adjourning burrowing pit (sic) from entering that portion of the land in order to avoid accident that, may be occasioned by felling of trees. The plaintiff says that on 28/5/91, he went to the bush to await the defendant’s servants, having earlier warned his customers not to enter the land. On getting to the defendant’s office, he was told by one Samson, and Jacob, that they could not come to plaintiff’s land to work, because they were sent by their Superior Officer, to go to inspect plaintiff’s neighbour’s land.
8. The plaintiff avers that on the 30th of May, the defendants (sic) commenced work on his neighbour’s land. The plaintiff says further, Mr. John Imana and Pau Ehiorobo assist him in his business and both of them were and conversant with this transaction (sic).
9. The plaintiff avers that he considered the agreement with the defendant more profitable, since he will have a vast area of cleared land from which to extract sand out no sooner had the agreement been reached did the defendant renege on their promise to clear the land.
10. The plaintiff says that he instructed his solicitor to write the defendant, when it became apparent that defendant had no intention of fulfilling its obligations under the contract. The plaintiff shall find on these letters.
11. The plaintiff avers that by the refusal of the defendant to clear the land he has been deprived from making substantial amount of money from Meemax Nigeria Limited as well as unable to extract sand from the land.
12. That within the land allocated to the defendant is an existing sharp sand burrow pit wherein the plaintiff collects about N1,500 (One thousand Jive hundred Naira) daily from customers and as a result of the agreement the plaintiff has been unable to collect these sum (sic)from customers.

Particulars of damages

1. Amount lost from burrow pit from 28/5/91 till filling of action N90,000.00
2. Amount lost for not letting land to Meemax Nigeria Limited 2,000.00

3.General damages 41,000.00

Total N2,500,00.00

4. An order that the defendant clear the one acre of land the benefit of the plaintiff (sic).

As a result of the matters aforesaid, the plaintiff has suffered lost (sic) and claims from the defendant the sum of two million five thousand Naira as damages for breach of contract and as per summons filed in this matter.

Defence to counter-claim

1. Save and except as hereinafter expressly admitted the plaintiff denies each and every allegation of fact contained in the counter-claim as if each and every such allegation was specifically set out and traversed seriatim.
2. The plaintiff denies paragraphs 25, 26, 27 and 28 of the counter-claim and shall contend at the trial that the counter-claim is intended to blackmail or intimidate the plaintiff from pursuing his legal right.

Wherefore the plaintiff shall urge the court to dismiss the counter-claim with destabilising cost (sic).”

The defendant, in its thirty-one paragraph further amended statement of defence and counter-claim essentially denied the plaintiff’s averments in his amended statement of claim. I shall nevertheless reproduce certain paragraphs which I consider of moment. The paragraphs are 5, 7, 11, 12 of the amended statement of defence and paragraphs 28, 29 and 31 of the counter-claim which read:

“5. The defendant avers that it entered into an agreement with the plaintiff in May, 1991, which gave defendant a right to extract sand from part of the plaintiff’s land which was two acres. The defendant shall at the trial of this action rely on the said agreement. The plaintiff is hereby given notice to produce the said agreement.

7. The defendant avers that it was made clear to the plaintiff that the defendant would commence operations on the said land when it deemed fit to do so.
8. The defendant in reply to paragraph 7 of the statement of claim avers that the agreement it entered with the plaintiff was in writing. The plaintiff clearly understood the terms of the agreement and his nominated representative signed on his behalf.
9. The defendant denies the averments in paragraphs 8, 9 and 10 of the amended statement of claim in its entirety and avers that at no time did the defendant agree that the land will be cleared on 28/5/91 and the defendant did not send any of its employee agent (sic) on 27/5/91 or any other date to give the plaintiff date for clearing the land. The defendant states that the plaintiff did not have any burrow pit on his land.

Counter-claim

28. The defendant avers that it paid the plaintiff the sum of N4,000.00 (four thousand Naira) in respect of the agreement which was subsequently breached by the plaintiff.
29. The defendant avers that it paid the said N4,000.00(four thousand Naira) to the plaintiff as consideration for the sand to be extracted from plaintiff’s land. The plaintiff by his breach of the agreement prevented the defendant from extracting sand from the said land.
30. WHEREOF the defendant counter-claims against the plaintiff for the sum of N100,000.00 (One hundred thousand Naira) made up as follows:

(i) Special damages:

(a) Amount paid to plaintiff by the defendant N4,000.00

(b) Expenses for obtaining an alternative parcel of land N6, 000.00

(ii) General damages N90, 000.00 Total N100.000. 00

At the hearing of the case in the trial court, the plaintiff and a witness testified on his behalf, while only one witness testified on behalf of the defendant.

The case for the plaintiff is saliently as follows: the plaintiff himself testified that in May, 1991, the defendant approached him through Samson and Jacob that it would like to take sand from his burrow pit. The defendant tested the ure of the land and its agents, Samson and Jacob reported to the plaintiff that the sand in the burrow pit was good although there was a lot of work to be done. An agreement to the effect that the said land which covered two acres would be cleared by the defendant who would in turn pay N4,000.00 on one of the two acres and he, the plaintiff, would take the other acre of cleared land. The agreement was signed on 04/5/91 by his younger brother, John Enoma, because he is completely blind. The defendant told him that work would start on the agreed land at 9 a.m. on 28/5/91. In view of this undertaking by the defendant, he told his customers not to go to the existing burrow pit to take sand. On 28/5/91, he went to the land in issue and waited till 10 a.m. without seeing any staff of the defendant. He thereafter went to the office of the defendant where he saw Samson who told him that an expatriate staff of the defendant told him (Samson) to inspect another person’s land which is adjacent to his (plaintiff) own. On 30/5/91, the defendant went to the said neighbouring land and started doing the type of work that would have been done on his own land. On his instruction, his lawyer gave the defendant an ultimatum of seven days to go to site or pay compensation of N100,000.00. The defendant replied the plaintiff’s lawyer that he had not abandoned the plaintiff’s work but that the lawyer should keep in contact with it. The plaintiff’s lawyer gave the defendant a further two weeks’ ultimatum but to no effect until the instant action was instituted. At about the time the agreement was entered into with the defendant another company, Meemax Nigeria Limited, offered to rent the two acres for two million Naira (N2m) but he turned down the offer. He further testified that he earned N1,500.00 a day on one acre. He urged the court to award him N2,000,000.00 and N90,000.00 that he would have respectively earned from Meemax Nigeria Limited and his customers if he had not stopped them from extracting sand from his burrow pit. Under cross-examination, the plaintiff said that the sum of N4,000.00 paid to him by the defendant was not for excavating sand but for the crops damaged and rent.

There was a burrow pit on the said two acres even though it was a forest. He had excavated sand from the pit for three years, before he entered into an agreement with the defendant. The defendant put pressure on him on the land because it told him that it was short of sand for its on-going Benin/Warri project. In that circumstance, it could not be true that the defendant wanted to start work on the said land only when it deemed necessary.

The plaintiff’s witness, Mr. Paul Ehiorobo, testified that on 24/5/91 he signed an agreement (exhibit P1) on behalf of the plaintiff with the defendant. After signing the agreement the plaintiff’s witness adds:

“…the company asked us to go that they were coming to start work on 28/5/91… On 27/5/91 two workmen from Reynolds Construction Company came to the burrow pits to tell us to stop workers working there that they were coming to start work on 28/5/91. That no other vehicle should be allowed to enter from 28/5/91.”

He further testified that on 28/5/91, he and others went to the land to be cleared by the defendant in keeping with its directive.

The defendant did not show up. They thereby went to the defendant’s office where Samson told them that:

“…their Superior Officer sent them to inspect sand from our neighbour’s burrow pit. We told our customers not to come as from 28/5/91.”

The witness further testified that when he and his co-workers went to the burrow pit, they found the defendant working on the burrow pit of their neighbour and that up till the time of testifying (1/2/94), the defendant had not cleared their own land as agreed. He identified exhibits P2 and P3 which are letters from Meemax Nigeria Limited, whose offer to clear the said land about the same time was rejected. He also identified exhibits P4, P5, P6 and P7 which are correspondences between the plaintiff and the defendant. Under cross-examination, the witness admitted that although the land in issue is a forest a burrow pit is within it. He was not aware that the defendant entered into another agreement with people in the vicinity. He was aware that the defendant paid the plaintiff N4, 000.00 as per exhibit P1.

Mr. Samson Omoregbe testified as the only witness for the defendant. He is a Senior Technician in the defendant’s employ. In May, 1991, the plaintiff approached the defendant and both of them entered into an agreement to excavate sand from the plaintiff’s land spanning two acres. The plaintiff did not inform the defendant that he had other transactions on the land in point with other companies.

He added:

“It was made clear to the plaintiff that defendant would commence operations at the time deemed fit by the defendant. The plaintiff was given N4,000.00 for the sand we were supposed to extract from the two acres in the agreement… I am not aware that defendant agreed to clear two acres by 10 a.m. on 28/5/91.”

The defendant’s witness further testified that the defendant did not clear the land as agreed because soil analysis had not been carried out. He denied being in breach of the contract (exhibit P1). He denied being aware of the instruction that the plaintiff should not work on 27/5/91 (as opposed to 28/5/91 alleged by the plaintiff).

He further denied that there was a burrow pit on the land which was a forest. The defendant acquired an alternative land for N6,000.00 because it could not utilise the plaintiff’s land. He urged the court to order the refund of N4,000.00 already paid to the plaintiff and award general damages of N90,000.00 to the defendant. Under cross examination, the witness said that although the defendant entered in a written agreement on the alternative piece of land, he could not exhibit a copy of that agreement. He further answered:

“There are many burrow pits in the area and the plaintiff has one of the burrow pits… On 27/5/91 Jacob and I went to the land and met Ehiorobo (P.W.1) and others on the land …Mr. Jacob is the General Superintendent.”

At the close of the case for the defendant, the learned Counsel for the parties addressed the court. In a reserved and well considered judgment, the learned trial Judge partially allowed the plaintiff’s claim and dismissed the defendant’s counter-claim in its entirety.

The defendant, now appellant, was thoroughly aggrieved by the judgment of the learned trial Judge and appealed to this court on six grounds. Briefs were filed and exchanged by the parties.

The appellant identified the following three issues for the determination of the appeal:

“2.1 Which party was in breach of the contract, exhibit P1?

2.2. Whether the respondent had established a case to justify an award of damages.

2.3 Whether the dismissal of the appellant’s counter-claim was proper.”

The plaintiff who is the respondent, on his part, distilled the following issues:

“1. Whether there is evidence in support of the finding of the lower court that the appellant breached the contract.

2. Whether there is evidence to justify the award of theclaim for the sum of N90,000.00 in favour of the respondent.
3. Whether the counter-claim was properly dismissed.”

At the oral hearing of this appeal, both learned Counsel for the appellant and the respondent respectively adopted and relied on the parties’ briefs of argument filed on 23/11/98 and 18/9/2000 and urged the court to allow and dismiss the appeal.

Issues identified by the parties are ostensibly similar, but it seems to me that the respondent’s issues exhibit greater industry than those of the appellant. I shall therefore, specially consider the issues adumbrated by the respondent.

On issue 1, A. O. Alegeh, Esq., the learned Counsel for the appellant stated the settled law that the court is enjoined to give effect to the terms of a contract between the parties and he relied on the case of Artra Industries v. N.B.C.I. (1998) 4 NWLR (Pt. 546) 357. He contended that the crux of the instant case is the issue of time for performing the obligations set out in the contract (exhibit P1). He further contended that the exhibit P1 has no time stipulation and that no one can unilaterally introduce time. He argued that where time is not of the essence in a contract, the law only allows an inference of reasonable time and he relied on the case of Mazim Engineering v. Tower Aluminium (1993) 5 NWLR (Pt. 295) 526. He referred to the vehement denial of the appellant’s witness that two employees of the appellant informed the respondent that work would commence on 28/5/91. He argued that the allegation and denial on the part of the respondent and the appellant’s witness are two conflicting stories which the learned trial Judge did not resolve. He submitted that it was improper of the trial court to merely say that it believed a witness without stating the ground for such belief and cited in support the case of Odiba v. Azege (1998) 9 NWLR (Pt.566) 370 and Okene v. Orianwo (1998) 9 NWLR (Pt. 566) 408. He urged the court to hold that the failure of the learned trial Judge to take advantage of hearing and seeing the witnesses in resolving the conflicting testimonies has occasioned miscarriage of justice and that the judgment of the trial court should be set aside and he relied on the case of Popoola v. Adeyemo (1992) 8 NWLR (Pt.257) 1.

Learned Counsel for the appellant argued that oral testimony of a witness cannot be admitted to alter and/or add to the contents of a written document as in exhibit PI. He relied on section 131 (it is 132) of the Evidence Act, 1990 and Okubule v. Oyagbola (1990) 4NWLR (Pt. 147) 723 at 739.

On the issue of time for performance of the obligation in exhibit P1, the learned Counsel stated that exhibits P6, P7, D1 and D2 did not stipulate any such time. He urged the court to hold that the appellant did not breach exhibit P1, but that it was the respondent that breached the contract (exhibit P1) by unilaterally fixing an unreasonable time.

In reply, M. E. Omage, Esq., the learned Counsel for the respondent submitted that there is abundant evidence in support of the finding of the trial court that the appellant breached the contract. It is not in doubt that there was a written contract but the learned counsel argued that from the respondent’s case which the learned trial Judge believed there was a separate oral contract as to the time of carrying out the obligation in exhibit P1 (the contract). He conceded that exhibit P1 was silent on the issue of time. He, however, referred to paragraphs 8 and 9 of the amended statement of claim (supra) and the fact that the respondent and his witness gave evidence on those averments. He also referred to the appellant’s only witness who admitted under cross-examination in line with paragraph 9 of the amended statement of claim (supra) that he was on the land on 27/5/91. He contended that the learned trial Judge was right to have admitted the circumstances amounting to oral evidence modifying and infusing time factor into exhibit P1 by virtue of section 132(1)(d) of the Evidence Act and the case of Wayne (W A.) Ltd. v. Reuben N.A. Ekwunife (1990) 1 BAR M.L.R. 82 at 91, in which the Supreme Court held, inter alia, that proviso (d) of section 132(1) of the Evidence Act allows the evidence of a subsequent oral agreement between the parties to modify a written contract. He referred to the oral agreement and argued that as at 28/5/91 the appellant was in breach of the contract (exhibit P1). He also referred to paragraph 3 of exhibit P6 where the fact of the breach was clearly and unequivocally brought to the attention of the appellant. P6 and P7, learned Counsel submitted are to the effect that the respondent insisted on the performance of the contract in exhibit P1. He urged the court to resolve issue 1 in favour of the respondent.

The instant issue is largely pivoted on exhibit P1 (the contract).

I am of strong opinion that it will make for some elucidation to reproduce it. Exhibit P1 accordingly reads:

‘AGREEMENT AND RECEIPTS NAME OF FARMER: MR. S. I. EDOMWONYI OCCUPATION: SAND QUARRY SPECIALIST AGE: …….ADDRESS: 14, UPPER SAKPONBA ROAD, BENIN CITY

CRID/NO/CHAINAGE: 1ST PIT, AVBIAMA VILLAGE OREDO LOCAL GOVERNMENT AREA

GRADE:… DATE: 15TH MAY, 1991: ITEM: B/PIT DESCRIPTION B/PIT SIZE/ RATE N . K

Aharp Sand Burrow Pit (sic) QUANTITY 4,000.00 2Acres

Total N4,000.00 Amount in words: Four thousand Naira only.

I, the undersigned admit that the above mentioned particulars are correct and the sum stated in this receipt is representing the full amount to be paid in respect of sharp sand to be dug from my sand burrow pit. The contractor Reynolds Construction Company (Nig.) Ltd. shall clear the over burden and extract sand from half the cleared land.

And that there would be no other claim(s) whatsoever in connection with the above subject.

This agreement was translated to both parties with understanding in the presence of the witness before they signed (sic). (Sgd.) ? ? ? (Sgd.) ? ? ? Reynolds Construction Co. (Nig.) Ltd. For the Farmer 24/5/91

(Sgd.) ? ? ? (Sgd.) ? ? ?Witness 1st Witness 24/5/91 24/5/91Date (Sgd.) ? ? ?2nd Witness 24/5/91 DateReynolds Const. Co. (Nig.) Ltd. Paid 24th May, 1991.”

It is apparent from the contents of the Contract (exhibit P1) that time of performance of the contract was not expressly stipulated. Time was not therefore an essential factor at the time of signing the agreement. There is, however, uncontradicted evidence of particularly the plaintiff’s witness that subsequent to the date of the signing of exhibit P1, two employees of the appellant on 27/5/91 met the employees of the respondent at the land which was the subject of the contract that the appellant would start the clearance of the said land at 9 a.m. on 28/5/91. Those employees (of the respondent) added:

“On 27/5/91, two workers from Reynolds Construction Company came to the burrow pits to tell us to stop workers working there that they were coming to start on 28/5/91. That no other vehicle should be allowed to enter there from 28/5/91.”

There is respondent’s evidence in apparent positive response to the request to keep his workers away from the land in point that he kept his workers away on 28/5/91 as requested. This in my view amounted to offer and acceptance of condition orally agreed upon for the furtherance of exhibit PI. The appellant argued in an attempt to weaken the oral agreement by saying that the appellant’s testimony conflicted with that of the respondent on this issue. It is trite that the proper time to cast aspersions on the evidence of any witness is during cross-examination. This is so because it is at that point in time that the truth or otherwise of the testimony of the witness will be tested and the necessary weight attached. The appellant’s evidence at page 42 of the record of appeal is to the following effect:

“I am not aware of any offer from any other person made to the plaintiff. I am not aware that there was a statement that the plaintiff should not work there on 27/5/91. There is no burrow pit on the land in the agreement…

There are many burrow pits in the area and plaintiff has one of the burrow pits…”

is in my opinion, only a ruse. Thus, the appellant’s evidence that he was not aware that the respondent kept his workers away from work on 27/5/91 is at variance with the respondent’s date which was 28/5/91. Furthermore, the appellant’s denial and subsequent acceptance of the presence of a burrow pit on the respondent’s land gravely affected the veracity of the appellant’s testimony. The cameleonic stance of the appellant did not lead credence to its testimony. The learned trial Judge was therefore not in any error to have believed the evidence of the respondent.

From the foregoing, it is not in doubt that there was an oral agreement between the parties. The learned Counsel for the appellant argued that no oral testimony of a witness is admissible to alter and/or add to the contents of a written document. I am of the view that is a misconception of section 132 of the Evidence Act, 1990, with particular reference to paragraph (d) of its proviso. The proviso which is an exception to the rule of exclusion of oral by documentary evidence reads:

“(d) the existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property.”

This proviso has been particularly interpreted by the Supreme Court in the case of Reuben N. A. Ekwunife v. Wayne (WA.) Ltd. (1989) 5 NWLR (Pt. 122) 422 at 441, to the effect that evidence of a subsequent oral agreement between the parties to modify a contract is admissible.

It is further trite that if an agreement is not required by law to be in writing but nevertheless reduced into writing, the parties may, before there is a breach, orally rescind the agreement in its entirety or amend it by subtracting from or adding to it or varying it in any other way. In the instant case, exhibit P1 which is the clearing of land is not required by law to be reduced into writing. It therefore, follows that the subsequent oral agreement which came into effect on 27/5/91, before the effective date of the main agreement on 28/5/91 regularly formed a functional integral part of exhibit 1. In view of this, time of performance subsequently read into exhibit P1 was 28/5/91. The submission of the learned Counsel for the appellant that time was not the essence in performance of exhibit P1 does not carry any probative weight. Since the effective date of executing exhibit P1 is 28/5/91 and there is sumptuous respondent’s evidence and corresponding appellant’s evidence that the subject matter of the contract has not been executed, I agree with the learned trial Judge, who held at page 64 of the record of appeal as follows:

“Evidence of the plaintiff and his witness showed that the defendant was to commence work on the plaintiff’s land on 28/5/91, but unilaterally decided to bargain with another person. The defendant from the preponderance of evidence breached the contract. This entitles the plaintiff to damages.”

This judgment is fortified by the principle of law that when a stipulation as to time is made of the essence of the contract, a failure to perform at the stipulated time entitles the innocent party to elect to terminate the contract for breach of a condition with the consequences (a) that the innocent party thereby puts an end to all primary obligations which have not already been performed and (b) that the innocent party may claim damages from the contract breaker on the basis that he has committed fundamental breach of contract.In the instant case, failure to start work on 28/5/91 and non-clearance of the respondent’s land are fundamental breaches by the appellant.

The respondent was thereby deprived of the benefit of exhibit P1.

Issue I is accordingly resolved in favour of the respondent.

Issue 2, the learned Counsel for the appellant substantially argued that there was no burrow pit on the respondent’s land and that no officer of the appellant requested the workers of the respondent to keep away from the land in issue. He further argued that the evidence of the respondent on the sum of N1,500.00 was conflicting. He submitted that the claim of special damages depended on the existence of a burrow pit on the land. He urged the court to set aside the award of special damages as same cannot be supported by evidence on record.

In reply, the learned Counsel for the respondent urged the court to hold that there was a burrow pit on the respondent’s land. He also referred to the appellant’s evidence under cross-examination that the respondent also has a borrow pit in the area. He added that exhibit P1 also admits of the existence of burrow pit on the land. He urged the court to sustain the decision of the learned trial Judge who allowed the head of claim for special damages.

The issues of conflict in testimonies of the parties and the existence or non-existence of burrow pit on the land in point have already been dealt with. I shall at the risk of repetition state that there is no conflict in the respondent’s evidence. The contradictions which touch on such issues as non-existing burrow pit and date of visiting the land to be cleared are replete in the appellant’s case.

There is uncontradicted evidence that the respondent would have earned N1,500.00 per day if instruction was not given that customers should keep away from his functional burrow pit on the land from 28/5/91. There is also evidence that the sum of N90,000.00 was computed as loss of earning for closing the burrow pit to customer during that period. The appellant failed to establish that there was no respondent’s burrow pit from which he could earn that amount. It is not in doubt that the sum of N90,000.00 awarded to the respondent by the trial court is loss of earning. It is trite that any claim for loss of earnings is a claim in special damages in the sense that full particulars must be given by the plaintiff in his pleading of his rate of earning and such other facts as may be necessary to enable the court to calculate as best and as accurately as it can. See Oseyemon v. Ojo (1997) 7 SCNJ 365, (1997) 52 LRCN 2068 at 2100; Benin Rubber Producers Ltd. v. Ojo (1997) 9 NWLR (Pt.521) 388. It is also very well settled that special damages must be supported by evidence which will determine the claim by arithmetical calculation. It is even more so when the claim is for anticipated earnings. See A.-G., Oyo State v. Fairlakes Hotels Ltd. (No.2) (1989) 5 NWLR (Pt. 121) 255 and Seisemograph v. Mark (1993) 7 NWLR (Pt. 304) 203.

The common place strict proof of special damages means no more than that such proof will readily lend itself to quantification. In addition the character of the acts themselves and the circumstances under which these acts are done regulate the degree of certainty and particularity with which the damage ought to be proved. See NEPA v. Alli (1992) 8 NWLR (Pt.259) 279, (1993) 11 LRCN 406 at 40. In the instant case, the respondent was substantially guided by the foregoing principles in his head of claim for N90,000.00 for special damages. Thus, the evidence of the respondent, a blind man, with the testimony of another witness gave lucid unchallenged evidence on the amount he earned daily from the burrow pit and the period of his claim. The learned trial Judge was satisfied with the respondent’s evidence and rightly allowed the head of claim for N90,000.00 as special damages for reasons already stated. This issue is also resolved in favour of the respondent.

Issue 3 is on the dismissal of the appellant’s counter-claim against the respondent for the separate sums of N4,000.00 and N6,000.00 and general damages of N100,000.00.

The learned Counsel for the appellant contended that the appellant’s only witness gave an unchallenged evidence in support of the counter-claim. He argued that the learned trial Judge did not consider the evidence led in support of the counter-claim, but merely held that the appellant was not entitled to a refund of N4,000.00 and the claims for general and special damages since it was in breach of contract and failed to prove the said damages respectively. He urged the court to hold that from the evidence on record the appellant had established its counter-claim and was entitled to judgment because the respondent was in breach of exhibit P1 for unilaterally fixing a date for the performance of the contractual obligations therein. It has already been held that the oral agreement modifying exhibit P1 cannot therefore be held to be unilaterally initiated by the respondent.

It was instead the appellant who suggested 28/5/91 as the date to execute the agreement (exhibit P1) and the respondent accepted by asking his workers and customers to keep away from work from that day. It is therefore the appellant who failed to show up at the site on the agreed date of 28/5/91 and beyond that was in breach of exhibit P1. Learned Counsel argued that the respondent did not refund N4,000.00 that he collected from the appellant. He further argued that there is evidence that the appellant subsequent to exhibit P1 secured an alternative parcel of land for the same purpose for the sum of N6,000.00. He therefore urged the court to award special damages of N10,000.00 in favour of the appellant.

In reply, the learned Counsel for the respondent referred to paragraph 31(1)(b) of the appellant’s further amended statement of defence and counter-claim where the appellant claimed “expenses incurred for obtaining an alternative parcel of land.”

Failed to tender evidence to that effect despite the fact that the appellant’s only witness said: “there was a written agreement for the alternative parcel of land R.C.C. Limited have (sic) a copy of the written agreement.”

He submitted that by virtue of section 132 of the Evidence Act, 1990, a party is precluded from giving oral evidence of the contents of written document.

On the issue of the refund of N4,000.00 by the respondent, the learned Counsel argued that there is no evidence that the appellant suffered any loss from the payment of that amount and that the appellant, by virtue of breaching exhibit P1, was not entitled to it. He submitted that the counter-claim was rightly dismissed by the learned trial Judge. As regards the sum of N4,000.00 paid to the respondent by the appellant, the question is: Should it be refunded to the appellant in the event of the breach occasioned by it (the appellant)? It is common ground that the appellant paid the respondent N4,000.00 at the time of signing exhibit P1 on 24/5/91.

It is apparent from the relevant portion of exhibit P1 that the payment of the amount of N4,000.00 was futuristic in its operation as reflected thus:

” ….the sum stated in this receipt is representing the full amount to be paid in respect of sharp sand to be dug from my sand burrow pit. The contractor Reynolds Construction Company (Nig.) shall clear the over-burden and extract sand from half of the cleared area.

And there would be no other claim(s) whatsoever in connection with the above subject.” (Italicising for emphasis)

It is also clear from the state of the record of appeal that the appellant breached exhibit P1 after payment but before any sharp sand could be dug from the respondent’s sand burrow pit. The general principle of law is:

“Where it has been agreed that a sum of money shall be paid by the one to the other immediately or at certain stated intervals, the question whether in the event of rescission or breach repayment will be compelled depends upon the proper construction of the contract. The object that the parties had in view in providing for the payment must first be ascertained. Where the intention was that the money should form a part payment of the full amount due, then… if the contract is rescinded for the payer’s default, the payee is required at law to restore the money subject to a cross-claim for damages.

If on the other hand, the intention was that the money should be deposited as earnest or as a guarantee for the due performance of the payer’s obligation, the rule at common law is that, if the contract is rescinded by reason of his default, the deposit is forfeited to the payer and cannot be recovered.”

See part VIII on Remedies for Breach of Contract at page 542 of Cheshire and Fifoot, The Law of Contract, 7th Edition. The position of the party in default or in breach is specifically that he will not be entitled to recover any deposit paid by him as a security for the performance of his obligations. By extension, if the amount paid is in respect of the entire contract, the party in default will normally have no claim unless there is evidence on which to ground the inference of a new contract. If the contract is not entire but divisible, the defaulter may be entitled to claim in respect of the divisible part of the performance completed subject to a counter-claim by the innocent party in respect of that part of the contract which remains unperformed. See paragraph 1738, chapter 24 of Chitty on Contracts, 26th Edition. In view of the foregoing principles, I have perused exhibit P1 and found that the sum of N4,000.00 was paid to the respondent by the appellant as a guarantee that it would clear two acres of sharp sand burrow pit belonging to the respondent. Exhibit P1 also states that no further payment would be made for the obligation in it. It follows that the payment of N4,000.00 was in respect of the entire contract. The appellant who has been satisfactorily held to be in breach of exhibit P1 shall by the rule at common law (supra) forfeit the amount of N4,000.00 to the respondent and cannot recover it. The learned trial Judge rightly refused to recompense the appellant in the sum of N4,000.00.

As regards the sum of N6,000.00 equally demanded as special damages, I agree with the submission of the learned Counsel for the respondent and the holding of the learned trial Judge that the appellant was in breach of section 132 of the Evidence Act, 1990 for attempting to ground the content of a written agreement it made with another organisation by oral evidence. There is accordingly no evidence to support the claim for N6,000.00 as special damages. Issue 3 is accordingly resolved in favour of the respondent. From the foregoing, it is my considered view that the trial court rightly allowed the respondent’s claim partially and dismissed the appellant’s counter-claim in its entirety. This view is in consonance with the settled law that an appellate court shall not interfere with the findings of facts of the trial court which had the advantage of hearing and watching the demeanour of the witness before it unless it is clear or established that such findings are perverse or are not supported by credible evidence or likely to occasion miscarriage of justice. See Woluchem v. Gudi (1981) 5 SC 291 and Ifeanyi Chukwu Osondu Co. Ltd. v. Akhigbe (1999) 11 NWLR (Pt. 625) 1 at 18. The decision of the trial court is justified and I shall not disturb it.

In the final analysis, I find no merit in the appeal. It is accordingly dismissed. I affirm the decision of the learned trial Judge. I award costs of N5,000.00 against the appellant in favour of the respondent.

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Other Citations: (2002)LCN/1240(CA)