The Hon. Minister F.c.t. & Ors V. Kaydee Ventures Limited (2000)

LawGlobal-Hub Lead Judgment Report

S. MUNTAKA-COOMASSIE, J.C.A.

 This is an appeal from the judgment of the High Court of Justice of the Federal Capital Territory, Abuja, Coram Kusherki, J., herein called lower court delivered on 6/4/98.

The parties to this appeal entered into road construction contract. The said contract was awarded to the plaintiff, now respondent, on 3/6/97 by which the respondent, as contractor, contracted to build, for the appellants, as employers, Link Road 3 Alignment headed AWARD OF CONTRACT FOR THE CONSTRUCTION OF LINK ROAD III ALIGNMENT, from Keffi Road to Airport express way Abuja. Before the work started in earnest, a dispute arose as a result of which the appellants terminated the contract on 29/8/97 for failure to mobilise to the site and incompetence. Same contract was re-awarded to 3rd appellant – SKY TECHNICAL NIGERIA LIMITED.

Consequently, the respondent’s company, Kaydee Ventures Limited, as plaintiff, instituted an action before the lower court against the three appellants, namely, the Hon. Minister of the F.C.T., Federal Capital Development Authority herein called 2nd appellant, and Sky Technical Nigeria Limited, claiming as follows:-
1. A declaration that the letter Ref. No. FCD/DES/44/S.295/80 dated 29/8/97 titled Termination of Contract for the Construction of Link Road from Keffi Road to Airport Expressway is illegal, null and void.
2. Perpetual injunction restraining the defendants, their servants, assigns and privies from interfering, interrupting, or preventing the plaintiff from executing contract No. FCD/DES/44/S.295/80 in accordance with the contract agreement dated 30/7/97.
3. A perpetual injunction restraining the defendants, their assigns, agents, and privies from carrying out any work on the construction of link Road Alignment along Keffi Road to the Airport Expressway, Abuja.
4. A perpetual injunction restraining the 1st and 2nd defendants from giving effect, or any backing or support to the 3rd defendant in carrying out the consnuction of the Link Road III Alignment, Keffi to Airport Expressway.
5. In the alternative-
The sum of N28,387,134.35 being anticipated loss of profit from the aforesaid contract; N30,000,000.00 as general damages for loss of goodwill, reputation and cost of demolition on site.
The respondent, as plaintiff called two witnesses and tendered a number of exhibits, to establish his case. The appellants in their turn called equally two witnesses who testified as DWS 1 and 2 also through whom some exhibits were tendered and admitted.

At the rudimentary and interlocutory stage, the learned Judge of the lower court had occasions to deliver a score of rulings. At the conclusion, His Lordship in a considered judgment, found in favour of the respondent. He states thus:-
….In the case in issue the 2nd defendant agreed to give 7 days notice prior to the contract being terminate, (sic) I agree with the learned plaintiff’s counsel that non-compliance with this conditions in itself amounted to breach of contract. It is therefore my finding that the termination of the contract by the defendants was wrongly done .
…The plaintiff must noneverlss (sic) be entitled to damages which should be reasonable in the circumstances. This I compute at 15% of the contract rate. This comes up to N14,193,569.68 which I hereby award the plaintiff.

The learned Judge of the lower court also awarded N1,000.00 (One thousand Naira) costs to the respondent.
Dissatisfied with the decision of Kusherki, J. the appellants appealed to this court and filed an amended notice of appeal containing two grounds of appeal. This was made possible by an order of this court granted on 4/4/2000 which reads thus:-
Ground 1
The decision of the learned trial Judge is against the weight of evidence.
Particulars
The learned trial Judge failed to properly balance the evidence of the defendant/appellants as against the low evidence of the plaintiff/respondent when he upheld the evidence of P.W.S as being uncontradicted and un-challenged and entirely based his findings on damages on this piece of evidence.
Ground 2
The learned trial Judge misdirected himself and erred when he failed to give adequate and/or impartial consideration to the case of the appellants and thereby occasioned serious miscarriage of justice.
Particulars
(a) The learned trial Judge was partisan in his summary of the argument of counsel and his partiality was reflected in his decision.
(b) The learned trial Judge omitted to consider the main argument canvassed by the appellants which centred on the fact that the plaintiff had failed to mobilise to site and had in fact breach the contract.
(c) The learned trial Judge ought to have known that the real issue he was called upon to decide was whether having regard to the evidence before him, the plaintiff/respondent was not entitled to the colossal sum he awarded to it as loss of profit.”

In his written brief of argument filed on 6/4/2000 pursuant to the rules of this court, the appellants’ counsel on behalf of all the appellants, formulated three issues for the determination of the appeal; I reproduce the issues hereunder:
1. Whether having regard to the facts and circumstances of this case and the evidential burden of proof, the respondent had made out a proper case of wrongful termination.
2(a) Whether the learned trial Judge adequately (if at all) dealt with the issues raised in the evidence of the defence witnesses in his judgment.
(b) If the answer to the above is in the negative, whether the said judgment should be allowed to stand.
3. Whether in his judgment, the learned trial Judge made an even handed approach to the case of the parties or correctly applied the law to the facts before him.”
Appellants’ counsel, I must hold, is a bit verbose and prolific.

Respondent’s counsel, Chief Karina Tunyan not only filed the normal respondent’s brief in response to the appellant’s brief, but also cross-appealed and filed his respondent’s and Cross-appellant’s brief together on 5/5/2000. After criticizing the appellant’s counsel for distilling three issues out of two grounds filed, learned Counsel for the respondent formulated, rightly in my view, two issues for our consideration as follows:-
“(a) Whether the decision of the learned trial Judge is against the weight of evidence adduced at the trial.
(b) Whether the learned trial Judge failed to give adequate and/or impartial consideration to the case of the appellants.”

The respondent’s Counsel, Chief Tunyan raised a preliminary objection and contended that both the grounds of appeal filed by the appellants were incompetent and should be struck out. He argued that ground one being a general ground should not be vaguely couched unless and until it is an omnibus ground, in that case it may be allowed to scale through. He relies on Order 3 Rule 4 of the Rules of this Court.

Learned Counsel also drew the attention of this court to the existence of their notice of cross-appeal filed on 21/5/98 containing ground of appeal which read thus:-
The learned trial Judge applied wrong principle of law in arriving at N14,193,569.68 only as plaintiff’s anticipated loss of profit.
Particulars
(a) The evidence of P.W.1 in respect of the anticipated profit of the plaintiff was un-contradicted.
(b) P.W.1 being an expert witness, the court ought to believe and act on his un-contradicted evidence as to the amount of loss of profit.
(c) The trial Judge applied unknown principle of law in reducing the sum of N28,387,189.35 as given by P.W.1 as the loss of profit to N14,193,569.68

From the above sole ground of cross-appeal, the respondent formulated one issue as follows:-
Whether the learned trial Judge was right in law by reducing the loss of profit of N28,387,139.35 as given in evidence of P.W.1 to N14,193,569.68.
The appellant’s counsel on behalf of all the appellants filed what he tags as “Reply to Cross-appellant’s brief on 22/5/2000. In this reply, the appellants vehemently opposed to the cross-appellant’s brief of the cross-appeal for the following grounds:-
(i) The cross-appellant never filed any notice of cross appeal as claimed by the respondent. This contravenes the due process of law.
(ii) The respondent made fairly fervent and spirited attempts to execute the judgment of the lower court and have never at any point, since the commencement of this appeal, indicated that they have also cross-appealed against the judgment of the lower court; and
(iii) that the cross-appeal is an afterthought as the respondent had all the opportunity before the commencement of this appeal to have filed the notice of cross-appeal and had to do as is borne out by the records of proceedings from the lower court to which the respondent has never objected.

Before I go further and delve into the consideration of this appeal proper, I believe it is instructive to consider and dispose of the said preliminary objection first.
I have gone through the records of proceedings and the arguments of both counsel coupled with their respective submissions. I will go direct to the point and hold that there is no substance in the objection. The said notice of cross-appeal dated 21/5/98 was filed and is now part of our record. I cannot say at the moment whether the cross-appeal was an afterthought or not. All what I can say presently is that a cross-appeal is an appeal by the respondent to a main appeal.
Under the Rules of this Court, a cross-appeal is considered as a distinct and lucid appeal having all the peripheries of an appeal. It is the law that a cross-appeal is akin to a counter-claim and to be valid, a competent notice of appeal is filed after which briefs of arguments are exchanged.

I now proceed to consider the appeal on its own merit having disposed of the said preliminary objection. I have already set out a brief facts and evidence in the case leading to the judgment of the lower court. I had also an overview of the decision of the lower court and the grounds of appeal filed and the brief filed thereto.

I wish to start with the issue No. 1 as presented by the appellants. The appellant’s counsel argued that the act of the appellants which prompted the action was the termination of their contract by the 1st and 2nd appellants for the respondent’s inability to mobilise and commence work on site. Following the termination, the respondent took out an action by way of writ of summons seeking for the granting of certain reliefs. The reliefs were stated in my earlier consideration of this appeal.