Sona Breweries Plc V. Sir Shina Peters & Anor (2004)

LawGlobal-Hub Lead Judgment Report

PIUS OLAYIWOLA  ADEREMI, J.C.A.

The plaintiffs (hereinafter, referred to as the respondents and cross/appellants) who claimed to have been retained by the defendant (hereinafter, referred to as the appellant and cross/ respondent) to perform live throughout Nigeria on its (appellant) Maltonic National Musical Tour of ten Northern States, the terms of and conditions of which were stated in a letter dated 7th July, 1995; had sued the said appellant claiming special and general damages for breach of contract, loss of reputation and goodwill and loss of earnings. The break-down of which is as follows;

(a) Special Damages
The sum of N1,590.000.00 being the total loss of earning due to the plaintiffs from gate takings and money sprayed by guests (the particulars of which are contained in the pleadings).

(b) General Damages
(i) The sum of N50,000.00 being damages for the defendant’s unilateral and flagrant breach of the agreement reached concerning the musical tour of ten (10) Northern States scheduled for 17/8/95 to 27/8/95.
(ii) The sum of N50,000.00 being damages for the plaintiffs’ loss of reputation and goodwill occasioned by the defendant’s unilateral breach of the agreement aforesaid.

The defendant/appellant had also counter-claimed against the plaintiffs/respondents for:
(a) The sum of N250,000.00 (two hundred and fifty thousand naira), being the mobilization fee paid by the defendant to the plaintiff for the musical tour which the plaintiffs did not carry out.
(b) Interest on the said sum of N250.000.00 at the rate of 21% from the date of this suit until the date of judgment and thereafter, at the rate of 6% per annum until full satisfaction of the judgment debt.
(c) Costs of instituting this action.

Pleadings in terms of statement of claim and with the leave of court, an amended statement of defence and counter-claim were filed and exchanged between the parties. The case later proceeded to hearing with both sides leading evidence in support of their claim and counter-claim respectively. At the end of the proceedings, the learned trial judge of the Lagos High Court sitting in Lagos Judicial Division, in a considered judgment delivered on the 7th of May, 1999, found in favour of the plaintiffs/respondents and ordered that the defendants/appellants should pay them N870,000.00. The counter-claim of the defendant/appellant was however, dismissed.

Being dissatisfied with the said judgment, the defendant filed an appeal therefrom upon a notice of appeal dated 10th May, 1999 which carries three grounds of appeal. The plaintiffs who were also dissatisfied with that part of the judgment which disallowed their claim for general damages of N50 million also cross-appealed upon a notice which was later amended with the leave of court. The amended notice of cross-appeal carries two grounds. Distilled from the three grounds of appeal identified for determination as contained in the appellant’s brief of argument are two issues which are as follows:
(1) Whether the N250,000.00 (two hundred and fifty thousand naira only) paid to the respondents by the appellant was a mobilization fee or consideration due to the respondents for the proposed tours?.
(2) Whether the respondents were entitled to and strictly proved the special damages of N870,000.00 (eight hundred and seventy thousand naira only) awarded by the trial court?.

From the appellants’ notice of appeal, the respondent, although at page 2 of its brief said three issues were identified for determination, however, in truth only, two (2) issues have been identified and as set out on page 2, they are as follows:
(1) Whether or not the N250.000.00 paid to the respondents by the appellant was paid as mobilization fee only or as performance fee and consequently is the appellant entitled to a refund of the said sum as claimed by the appellant?.
(2) Was the evidence led by the respondents sufficient to establish the respondent’s claim for special damages of N870,000.00 being the respondents’ loss of earnings from gate takings as particularized in paragraph 10 of the statement of claim dated 13/3/96?.

As I have said supra, the plaintiff/respondent was also dissatisfied with part of the judgment, hence, a cross-appeal, the amended notice of which carries two grounds. Distilled therefrom for the determination of the cross-appeal are two issues. Set out in the cross appellant’s brief. They are in the following terms:
(1) Is the respondents’ claim for N50 million being general damages for their loss of reputation and goodwill tantamount to double compensation in the circumstances of this action?.
(2) Did the respondents (as plaintiff at the lower court) prove or establish their claim for N50 million being general damages for their loss of reputation and goodwill occasioned by the appellant’s unilateral cancellation and/or breach of the aforesaid agreement between the parties?.

In reacting to the issues raised by the cross-appellant for determination, the appellant who is now the respondent to the cross-appeal identified two issues for determination; they are as follows:
(1) Whether the cross-appellant’s claim for 50 million for loss of reputation and goodwill is tantamount to double compensation?.
(2) What is the measure/amount of general damages due to the cross appellants for loss of reputation and goodwill?

When this appeal came before us on the 4th of November 2003, Mr. Awosika, learned counsel for the appellant adopted his client’s brief of argument filed on 2/6/2000 and the reply brief filed on 23/5/2001 and urged that the appeal be allowed. Mr. Ajayi, learned counsel for the respondent and the cross-appellant adopted his client’s combined briefs filed on 1st February, 2001 and urged that the appeal be dismissed but that the cross-appeal be allowed. Mr. Awosika, thereafter, adopted the appellant/respondent’s brief to the cross-appeal which brief was filed on 23/5/2001 and urged that the cross-appeal be dismissed.

I have had a careful examination of issues formulated by the parties for the determination of the appeal. It is my view that issue No. 1 on the appellants’ brief is similar to issue No. 1 on the respondents’ brief. I shall, therefore, take the two together. Issue No.2 on the appellant’s brief which is identical with issue No.2 on the respondents’ brief shall also be taken together.

On issue No.1, the appellant had argued in its brief of argument that by the written agreement signed by both parties and which was tendered as exhibit A, the N250,000.00 paid by the appellant to the respondents was the consideration they (the respondents) were due under that agreement to perform at all shows throughout the country:  Exhibit A, it was further argued, made no provision for further payments by the appellant. And since the respondents did not embark on the tours, the mobilization fee was not needed. The respondents however, in their brief, reviewed the testimonies of the witnesses called, particularly DW1 – Olufunso Ogundipe, the Advert Promotions Manager of the defendant/respondent/cross-appellant who in his evidence said that the facts pleaded in paragraph 7 of the amended statement of defence and counter-claim was correct. For a clear understanding of the arguments of the respondents’ paragraph 7 of the amended statement of defence, the averments of which were said to be correct reads:
“The defendant avers that the said tour was to commence on the 17th of August, 1995 and a Mobilization Fee of N250.000.00 was paid to the 2nd plaintiff/respondent which sum was duly receipted for on the 13th of July, 1995.”

It was their further argument that the appellant’s silence on the face of a letter dated 24/8/95 addressed by the respondent to the defendant in which they contended that the mobilization fee paid to them (defendants/respondents/cross-appellants) had been fully utilized to put their musical instrument, staff bus in readiness for the tour, is an admission of that contention; reliance was placed on the decision in Gwani v. Ebule (1990) 5 NWLR (Pt. 149) 201. The respondents further submitted that the appellant having failed to contradict their evidence in this respect, minimal proof of same is what is required of them (respondent’s) citing in support the decision in Balogun v. U.B.A. (1992) 6 NWLR (Pt. 247) 336.