(2018) LPELR-45291(CA)

Transcription

1 KAAN INTL DEVELOPMENT LTD v. LITTLE ACORNS TURNKEY PROJECTS LTD & ANOR CITATION: In the Court of Appeal In the Abuja Judicial Division Holden at Abuja ON WEDNESDAY, 27TH JUNE, 2018 Suit No: CA/A/82/2014 TINUADE AKOMOLAFE-WILSON EMMANUEL AKOMAYE AGIM MOHAMMED MUSTAPHA Before Their Lordships: Between KAAN INTERNATIONAL DEVELOPMENT LTD And 1. LITTLE ACORNS TURNKEY PROJECTS LTD 2. ABUBAKAR KENT MOHAMMED Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) RATIO DECIDENDI 1. CONTRACT - AGREEMENT: Whether parties are bound by the terms of their agreement - Respondent(s) "The partnership agreement, i.e. Exhibit 6, is clearly the foundation of the relationship between the appellant and the 1st respondent in this case, and it is this agreement that should bind the parties, because the law is that once parties reduce their intentions into writing, it is that agreement that the Court would construe in determining the liabilities of the parties under the contract and nothing more. See I.M.N.L VS. PEGOFOR IND LTD (2005) 15 NWLR Part 947 Page 1 AT P. 8 and H.S.H.M. CO. LTD. VS. JAFFAR (2004) 15 NWLR Part 896 Page 34. This is more so, where the terms of the contractual agreement are clear and unambiguous as in this case; see IHEZUKWU VS. UNIVERSITY OF JOS (1990) 7 SCNJ 95; MANDILAS & KARABERIS LTD. VS. OTIKITI (1963) 1 ALL NLR 22; OLANIYAN & ORS. VS. UNILAG (1985) 1 ALL NLR 314; see UNION BANK OF NIGERIA LTD. VS. SAX NIG. LTD. (1994) 9 SCNJ 1; WAYNE (W.A.) LTD. VS. EKWUNIFE (1989) 12 SCNJ 99 and DIN V AFRICAN NEWSPAPERS OF NIGERIA LTD. (1990) 5 SCNJ 209."Per MUSTAPHA, J.C.A. (P. 9, Paras. A-F) - read in context

2 2. CONTRACT - TERMS OF CONTRACT: Whether parties are bound by the terms of their agreement; Duty of court to respect the sanctity of agreement of parties "It follows naturally that where the terms of a written contract are clear and unambiguous effect must be given to it, especially as it is not the duty of the Court to rewrite contracts for the parties; See AFRICAN REINSURANCE CORP. V. FANTAYE (1986) 1 NWLR PART 14 PAGE 113; UNION BANK (NIG.) LTD. V. OZIGI (1994) 3 NWLR PART 333 PAGE 385 and BOOKSHOP HOUSE V. STANLEY CONSULTANTS (1986) 3 NWLR PART 26 PAGE 87. This Court believes it is simply stretching logic too far to suggest that the provision of what the appellant considers `necessary documents', is a condition precedent, to the execution of the contract, because the intent of Exhibit 6 is clear and unambiguous, and does not broach any other interpretation apart from the clear expression that the payment to be made, by the appellant, within thirty days of mobilization, is simply a 'commitment payment' to cement the contract. To hold otherwise will amount to rewriting the contract of the parties, see DIAMOND BANK LTD V UGOCHUKWU (2008) 1 NWLR part 1067 page 1. Where there is any disagreement between the parties to a written agreement on any particular point, as in this case, the only reliable evidence of resolving the claim is the written contract that binds the parties; and this is informed by the law- backed logic that where the intention of the parties to a contract is clearly expressed in a document, the Court cannot go outside the contract document in search of other document not forming part of the intention of the parties; see NNEJI V. ZAKHEM CON (NIG.) LTD. (2006) 12 NWLR PART 994 PAGE 297; S.P.D.C. (NIG.) LTD. V. EMEHURU (2007) 5 NWLR PART 1027 PAGE 347; LARMIE V. D.P.M.S. LTD. (2005) 18 NWLR PART 955 PAGE 438 and DALEK (NIG.) V. OMPADEC (2007) 7 NWLR PART 1033 PAGE "Per MUSTAPHA, J.C.A. (Pp , Paras. D-F) - read in context 3. DAMAGES - AWARD OF DAMAGES: Guiding principles for award of damages for breach of contract "The issue of damages as claimed in this case arises only when the appellant satisfactorily establishes a breach of the contract in existence between the parties because damages for breach of contract are essentially a compensation to the plaintiff for the loss or injury suffered through that breach. Its objective is to place the plaintiff in the same position as if the contract has been performed. See OMEGA BANK (NIG.) PLC VS O.B.C. LTD (2005) 8 NWLR.(PT. 928) 547. Therefore in any action for breach of contract, the measure of damages is the loss flowing naturally from the breach; see GONZEE (NIG). LTD Vs NERDC (2005) 13 NWLR (pt. 943) 63. In this case not only has the appellant failed to establish a breach of Exhibit 6 by the respondents, but by its own failing, the appellant has shown that it is actually the party in breach of the agreement, and the trial Court was apt when it held: "the plaintiff having failed to discharge its obligation by making the commitment payment within 30days of mobilizing to site, I find the termination of the contract by the 1st defendant vide Exhibit 10 valid in the present circumstances. I find that the plaintiff cannot claim under the agreement Exhibit 6 having failed to discharge its own obligations." The position of the law is settled by a long line of decided cases that the burden is always on that party, in this case the appellant, who seeks to enforce a perceived right under a contract to first and foremost fulfill the terms and conditions of the contract incumbent on him, if fails to discharge his obligations his claim crumbles as a consequence; and by its own showing, and in clear admission the appellant failed to do just that, when the only witness of the appellant stated at page 253 of the record of appeal that: "we did not pay the N100,000,000 to the 1st defendant as agreed 30 days upon mobilization to site."per MUSTAPHA, J.C.A. (Pp , Paras. C-F) - read in context 4. EQUITABLE REMEDY - PERPETUAL INJUNCTION: When Court will grant a perpetual injunction "It has to be stated clearly also that the appellant's claim for perpetual injunction is without basis in the circumstances of this case, because the appellant has not established any legal right in law to justify the grant of such an injunction. Perpetual injunction is not granted just for the asking, it is granted based on the determination of the rights of the parties, with the objective solely of preventing permanent infringement of those rights, and clearly no such right has been established to exists here to warrant the grant of such an injunction; see C.B.N. v AHMED (2001) 28 W.R.N. 38 and UNION BEVERAGES V PEPSICOLA (1994) 2 S.C.N.J It is also important not to lose sight of the fact that perpetual injunction is an ancillary relief which ought not be granted as prayed by the appellant in this case, because it cannot stand on its own, the appellant having failed to established a legal right which the Court can protect. This injunction is usually granted only where a party has successfully, proved its case on the balance of probability; it is never granted speculatively as sought in this case, see ADENIRAN V. ALAO (1992) 2 NWLR (pt. 223) 350 at 372."Per MUSTAPHA, J.C.A. (P. 24, Paras. A-F) - read in context

3 5. EVIDENCE - WRITTEN STATEMENT ON OATH: Effect of irregularity in a written statement on oath "The witness' statement on oath of the DW1 at pages 83 to 88 of the record of appeal is stamped by the commissioner of oath and dated the 29th of July, It was clearly not signed by the deponent, but the same statement at pages 11 to 16 of the additional record of appeal is stamped and signed by the same commissioner of oath, in the same handwriting and clearly signed by the deponent in this case. It is very important to note that ex facie the main record of appeal was compiled by Miss Lynda Dunkwu, of Babalakin and Co., who signed as the appellant's counsel, and not by the registrar of the trial Court. That clearly underscores the respondent's vehement protestation that learned counsel to the appellant used an `endorsement and return' copy of the document, which was not signed, in compiling the record of appeal. That much is evident from page 74 of the record of appeal which contains the 1st and 2nd defendants' joint statement of defense, clearly marked 'end and return' on the top left corner, from which the unsigned witness statement on oath emanated. This to my mind clearly settles the question of whether the actual statement on oath was properly signed as required, because it is positive proof that the DW1 signed the witness' statement on oath as required, as borne out by the record, thus casting a persuasive inference which this Court is bound to accept in the circumstances of this case, even without the additional record of appeal which learned counsel to the appellant urged this Court to discountenance. It is absurd in the circumstances of this case to refer to the additional record as an abuse of Court process, in view especially of the apparent irregularity of the record of appeal. It clearly is within the rights of the respondent to compile and transmit the additional record of appeal in this case, this is exactly what is contemplated by Order 8 Rule 6 of the Court of Appeal Rules Even if the additional record is discountenanced for failure to seek and obtain leave of Court, as urged upon this Court by learned counsel for the appellant, the witness' statement on oath will still be valid, by reason of Section 4 (2) and (3) of the Oaths Act which provides that: 4 (2) "no irregularity in the form in which an oath or affirmation is administered or taken shall: (a) Invalidate the performance of official duties; (b) Invalidate proceedings in any Court; or (c) Render inadmissible evidence in or in respect of which an irregularity took place in any proceedings. (3) The failure to take an oath or make any affirmation and any irregularity as to the form of an oath or affirmation shall in no case be construed to affect the liability of a witness to state the truth." Having deposed to the witness statement before the commissioner of oaths in accordance with the Rules of the High Court of the Federal Capital Territory and the Oaths Act, the failure, if any, by DW1 to sign the copy of the witness' statement on oath contained at pages 83 to 88 of the record of appeal is clearly an irregularity, which should not render the deposition of DW1 inadmissible merely on account of such defect; this is so because since the evidence of DW1 is to be taken to have been given as if under oath, by reason of the deposition, clearly no miscarriage of justice would be occasioned by the failure to administer the oath, even if he is taken to have failed to sign the deposition; see NZEWI & ANOR V OKEKE & ORS (2008) LPELR-4659-CA and ANATOGU V IWEKA II(1995) 8 NWLR part 415 page 547. I do not subscribe to the argument of learned counsel for the appellant that the failure to sign the document is an error that affects the competence of the said witness' statement on oath. If anything, it indeed is only an irregularity, especially as it did not affect the decision arrived at on the evidence, especially as it has not been having shown to have occasioned any miscarriage of justice. Ex facie, the document was evidently sworn to before 'a duly authorized person', i.e. the commissioner for oaths; see SOLOLA V STATE (2005) 2 NWLR part 937 page 460 and UDUMA V URINSI (2012) 7 NWLR part 1298 which aptly applies to this case. This is more so as the written statement on oath which was adopted at a later stage, on oath again, by the maker before he was cross examined is cured of any defect by reason of the subsequent oath of DW1 at page 235 of the record of appeal, in line with the principle in UDUMA V URINSI supra. It is very important also not to lose sight of the clear distinction between an affidavit and a witness statement on oath, because it is not necessary that all sworn documents or oath must comply strictu sensu with the provisions of Section 117 and 118 of the Evidence Act; see LAMBERT V OKUJAGU (2015) All FWLR part 808 page 552, where it was held that: "...the Rules of Court do not intend to encrust the written statement on oath with the formal garb of an affidavit as tailored by sections 107 to 120 of the Evidence Act, 2011."Per MUSTAPHA, J.C.A. (Pp , Paras. E-A) - read in context

4 MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of the High Court of the Federal Capital Territory, Abuja; Coram Hon. Justice Folashade Ojo, delivered on 6th day of March, 2013 in Suit No: FCT/HC/CV/1951/2010. The Appellant/Plaintiff commenced this Suit vide a Writ of Summons and Statement of Claim dated 1st day of July 2010 and claimed jointly and severally against the Respondents/Defendants the following reliefs:- i. A declaration that the Defendants are in breach of the Partnership Agreement dated 18th September, ii. A declaration that the purported termination of the agreement by the defendants is null and void. iii. An Order of special damages in the sum of N52,510, (Fifty Two Million, Five Hundred and Ten Thousand Naira) for breach of contract. iv. An Order of perpetual injunction restraining the Defendants, its agents and privies from taking steps towards concluding any arrangement with any other person and against the Plaintiff's interest under the Agreement of 18th September, v. Costs of this suit. 1

5 Pleadings were filed and exchanged and in a considered judgment delivered on the 6th day of March, 2013; the trial Court dismissed the Plaintiff's suit in its entirety. Dissatisfied with the said judgment, the Appellant initially filed a Notice of Appeal to this Court on the 24th day of May, 2013 and an Amended Notice of Appeal on the 12th day of February, 2015; it was deemed properly filed on the 29th day of January, The grounds of appeal shorn of their particulars are as follows:- GROUND ONE: The learned trial Judge erred in Law when Her Lordship held that: "I agree that by the express provision in the Agreement the Defendants had the obligation to provide the Plaintiff with all approvals from the appropriate authorities, such obligation was however not made a condition precedent to the Plaintiff's obligation to make the commitment payment of N100 Million within 30 days of mobilizing to site." GROUND TWO: The learned trial Judge erred in law when Her Lordship held that the only condition precedent for the performance of the obligation of the Appellant in Clause 3 of the Partnership Agreement is mobilization to site by the Appellant. 2

6 GROUND THREE: The learned trial Judge erred in law when Her Lordships failed to hold that the Respondents were in breach of their obligation to obtain the necessary permits from the authorities which became due upon the execution of the Partnership Agreement between the parties and was to be performed within a reasonable time. GROUND FOUR: The learned trial Judge erred in law in failing to imply the requirements of the Nigerian Urban and Regional Planning Act CAP N138 LFN 2004 and the Federal Capital Territory Act CAP 503 Laws of the FCT Nigeria into the agreement of the parties as taking precedent over the other terms and obligations under the agreement. GROUND FIVE: The learned trial Judge erred in law when her Lordship failed to adhere to the established principle of judicial precedent by following the binding decisions of the Supreme Court in MAZIN ENG. LTD VS TOWER ALUMINUM (1993) 5 NWLR PT. 295 and MULTI CHOICE (NIG) LTD VS. AZEEZ (2010) 15 NWLR PT PG. 40 authorities which were duly commended to the learned trial Judge and which ratios are applicable to the instant case before Her Lordship. 3

7 GROUND SIX: The learned trial Judge erred in law in refusing to grant the Appellant's reliefs sought in its Writ of Summons. GROUND SEVEN: The learned trial Judge erred in law, when it countenanced with the Respondents' evidence at the trial in refusing the Appellant's claims. From the above grounds, Oluwaseun Ben-Omotehinse Esq., of counsel for the Appellant submitted three issues for the determination of this appeal in the Appellant's Brief of Argument filed on the 12th day of February, 2015 but deemed properly filed on the 29th day of January, 2018; thus:- 1. Whether the trial Court erred in its construction and/or interpretation of the partnership agreement (Exhibit 6); particularly when the trial Court found that the appellant (rather than the Respondents) was in breach of the partnership agreement. 2. Whether the Respondents adduced any evidence on the record in support of their pleadings before the trial Court. 3. Whether the Appellant proved its claim before the trial Court and was therefore entitled to judgment as per its claim. 4

8 In response, Chinedu Obienu Esq., of counsel for the Respondents adopted the issues formulated by the Appellant in the Joint Respondents' Brief filed on the 9th day of February, Appellant's Reply Brief was filed on the 23rd day of February, Issue One: Whether the trial Court erred in its construction and/or interpretation of the partnership agreement (Exhibit 6); particularly when the trial Court found that the appellant (rather than the Respondents) was in breach of the partnership agreement. It is submitted for the appellant that where parties have embodied the terms of their contract in a written document, oral or extrinsic evidence is not admissible to add or vary the terms of the written instrument; learned counsel referred this Court to OMEGA BANK PLC V OBC LTD (2002) 16 NWLR part 794 page 483, UBN PLC V AKINRINMADE (2002) 2 NWLR part 645 and AG FERRERO & CO. LTD V HENKEL CHEMICAL NIG. LTD (2011) 5-7 part 1 MJSC 55. That the appellant in accordance with the terms of the contract mobilized to the site and even started preliminary work on the project, but was not furnished necessary documents, information and approvals required to commence the development of the housing units, in

9 accordance with Clause 4 of Exhibit 6. 5

10 That also even though there is no time limit to the obligation to provide the necessary information, it ought to have been discharged within a reasonable time, especially as the obligation to surrender all necessary documents is a fundamental term of the agreement, learned counsel referred this Court to NIGER INSURANCE CO. LTD V ABED BROTHERS LTD & ANOR (1976) 7 SC page 20 and the Nigerian Urban, Region Planning Act Cap N138 LFN, 2004 and Federal Capital Territory Act Cap 503 Laws of the Federal Capital Territory. Learned counsel submits that the failure to discharge the obligation has made it impossible for the appellant to legally perform the contract, he referred this Court to NIGER INSURANCE CO. LTD V ABED BROTHERS LTD & ANOR supra. That also the trial Court failed to consider Exhibit 6 as a whole document but rather isolated and considered the appellant's obligations under Clause 3 of the agreement, thus leading to a miscarriage of justice. That the respondents breached Exhibit 6, and are therefore guilty of breaching the partnership agreement by failing to 6

11 furnish the requisite documents in line with the respondents' obligations under the contract, learned counsel referred this Court to KAYDEE VENTURES LTD V MINISTER FCT (2010) 7 NWLR part 1192 page 171. Learned counsel further submitted that the intention of parties is never always fully expressed in the written agreement, as such the Court ought in certain circumstances to hold that certain terms and conditions are implied to give effect to the contract; he referred this Court to SHIRLAW V SOUTHERN FOUNDATIONS LTD (1939) 2 K.B 206, REIGATE V UNION MANUFACTURING CO. (1918) 1 KD 592, LIVERPOOL CITY COUNCIL V IRVIN (1977) A.C. 239; and also contended that the respondents have an obligations to provide the documents within a reasonable time, he referred this Court to NIGER INSURANCE CO. LTD V ABED BROTHERS LTD & ANR supra MAZIN ENG LTD V TOWER ALUMINIUM (1993) 5 NWLR part 295 page 526. It is submitted in response that Exhibit 6 which the appellant breached is the basis of the relationship between the appellant and the 1st respondent, and since the agreement is not deceptive or fraudulent, parties are bound by it; learned counsel referred this Court to 7

12 AG RIVERS STATE V AG AKWA IBOM STATE (2011) 3 MJSC 1 page 28, AG FERRERO & CO LTD V HENKEL CHEMICAL NIG. LTD (2011) 5-7 part 1 MJSC 55 and ONYEKWELU V ELFPN LTD (2009) 2 MJSC part 1 page 25. That the words used in the agreement expressed the intention of the parties, as such extrinsic evidence is not admissible to add to or vary such agreement; learned counsel referred this Court to UNION BANK NIG. LTD V OZIGI (1994) 3 NWLR part 333 page 385 and UBN LTD V NWAOKOLO (1995) 6 NWLR part 400 page 127; and further contended that the agreement between the appellant and the 1st respondent is not subject to the provisions of the Nigerian Urban and Regional Planning Act 2014 and the Federal Capital Territory Act. That also a party who has not furnished consideration cannot maintain an action for specific performance in a contract; learned counsel referred this Court to STABILINI & CO. LTD V OBASI (1997) 9 NWLR part 520 page 293 and CHABASAYA V ANWASI (2010) 5-7part 1 MJSC 1. It is the further contention of learned counsel for the respondents that the only condition precedent for the performance of the obligation as stated by Exhibit 6 was mobilization to site, and

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14 failure to pay the commitment fee means that the contract cannot be enforced RESOLUTION: The partnership agreement, i.e. Exhibit 6, is clearly the foundation of the relationship between the appellant and the 1st respondent in this case, and it is this agreement that should bind the parties, because the law is that once parties reduce their intentions into writing, it is that agreement that the Court would construe in determining the liabilities of the parties under the contract and nothing more. See I.M.NL VS. PEGOFOR IND LTD (2005) 15 NWLR Part 947 Page 1 AT P. 8 and H.S.H.M. CO. LTD. VS. JAFFAR (2004) 15 NWLR Part 896 Page 34. This is more so, where the terms of the contractual agreement are clear and unambiguous as in this case; see IHEZUKWU VS. UNIVERSITY OF JOS (1990) 7 SCNJ 95; MANDILAS & KARABERIS LTD. VS. OTOKITI (1963) 1 ALL NLR 22; OLANIYAN & ORS. VS. UNILAG (1985) 1 ALL NLR 314; see UNION BANK OF NIGERIA LTD. VS. SAX NIG. LTD. (1994) 9 SCNJ 1; WAYNE (W.A.) LTD. VS. EKWUNIFE (1989) 12 SCNJ 99 and DIN V AFRICAN NEWSPAPERS OF NIGERIA LTD. (1990) 5 SCNJ

15 The relevant portions of Exhibit 6 under contention are contained at pages 2 to 3 of the supplementary record of appeal, and it is as follows: 1. The total amount due to the second party from the first party in this transaction is N200,000,000 only The payment shall be made to the second party by the first party as follows: i. A commitment payment of 50% equivalent to N100 Million only, payable not later than 30 days from the date the first party mobilized to site. ii.. iii. 4. The second party shall surrender all necessary documents, information and approvals as may be required by the first party or appropriate authority to facilitate the development and sales of the estate. It is not in dispute that the appellant failed to pay the first installment of N100 Million, referred to as commitment payment, contending that, the failure to provide the necessary approval documents was the albatross around the respondent's neck, thus breaching an obligation which it claimed was a condition precedent to the execution of the contract. 10

16 It is clear from the provisions of Exhibit 6 quoted hereinbefore that the payment of the initial sum of N100 Million is to be made within 30 days of mobilization to site by the appellant, and the use of the ward 'commitment payment' is definitely not accidental, because the intention is clear and unambiguous to the effect that payment should be made as a sign of commitment to the agreement. That being clearly so, this Court is in complete agreement with the trial Court in its finding that: "the only condition precedent for the performance of the obligation as clearly stated in the agreement is mobilization to site." It follows naturally that where the terms of a written contract are clear and unambiguous effect must be given to it, especially as it is not the duty of the Court to rewrite contracts for the parties; See AFRICAN REINSURANCE CORP. V. FANTAYE (1986) 1 NWLR PART 14 PAGE 113; UNION BANK (NIG.) LTD. V. OZIGI (1994) 3 NWLR PART 333 PAGE 385 and BOOKSHOP HOUSE V. STANLEY CONSULTANTS (1986) 3 NWLR PART 26 PAGE 87. This Court believes it is simply stretching logic too far to suggest that the provision of what the appellant considers `necessary documents', is a condition precedent, to the execution of the contract, because

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18 the intent of Exhibit 6 is clear and unambiguous, and does not broach any other interpretation apart from the clear expression that the payment to be made, by the appellant, within thirty days of mobilization, is simply a 'commitment payment' to cement the contract. To hold otherwise will amount to rewriting the contract of the parties, see DIAMOND BANK LTD V UGOCHUKWU (2008) 1 NWLR part 1067 page 1. Where there is any disagreement between the parties to a written agreement on any particular point, as in this case, the only reliable evidence of resolving the claim is the written contract that binds the parties; and this is informed by the law- backed logic that where the intention of the parties to a contract is clearly expressed in a document, the Court cannot go outside the contract document in search of other document not forming part of the intention of the parties; see NNEJI V. ZAKHEM CON (NIG.) LTD. (2006) 12 NWLR PART 994 PAGE 297; S.P.D.C. (NIG.) LTD. V. EMEHURU (2007) 5 NWLR PART 1027 PAGE 347; LARMIE V. D.P.M.S. LTD. (2005) 18 NWLR PART 955 PAGE 438 and DALEK (NIG.) V. OMPADEC (2007) 7 NWLR PART 1033 PAGE

19 It cannot be denied that by Clause 4 of Exhibit 6 the respondent had an obligation to provide the appellant with the `necessary approval documents'; for the avoidance of doubt the said clause states as follows: "the second party shall surrender all necessary documents, information and approvals as, may be required by the first party or appropriate authority to facilitate the development and sales of the estate." It is the considered opinion of this Court that this obligation was not, by any stretch of imagination, made a condition precedent to the appellant's own obligation to make the 'commitment payment' within 30 days of mobilizing to site, which he failed to fulfill. The trial Court's finding in this regard is impeccable, for the simple reason that it considered Exhibit 6 as a whole; it did not restrict itself to the appellant's obligation in Clause 3 of the agreement, as contended by learned counsel for the appellant. There is therefore neither need nor necessity in the circumstances, for implying terms into the contract, as suggested for the appellant, not least because the terms of the written agreement are clear and unambiguous; the authority of UNION BANK OF NIGERIA LTD V OZIGI (1994) 3 SCNJ 42 13

20 referred to is least appropriate in the circumstances of this case. It is for these reasons that I now resolve this issue in favour of the respondent, against the appellant. Issue Two: Whether the Respondents adduced any evidence on the record in support of their pleadings before the trial Court. It is submitted for the appellant on this issue that the purported witness statement on oath, adopted by DW1 as evidence discloses no competent or viable document that could have been adopted because it was not signed by the person who claims to have sworn to that statement, learned counsel referred the Court to DANTIYE V KANYA (2009) 4 NWLR part 1130 page 13. That once the statement is discountenanced the respondents have nothing to fall back on and the appellant's statement of claim ought to be deemed admitted and proved, learned counsel referred the Court to AWOJUGBAGBE LIGHT INDUSTIRES V CHINUKWE (1995) 4 NWLR part 390 page 379, OLANRENWAJU V BAMIGBOYE (1987) 3 NWLR part 60 page 353, OFOMAJA V COMM FOR EDUCATION (1995) 8 NWLR part 411 page 69 and MOBIL PRODUCING NIG. UNLIMITED V UMENWEKE (2002) 9 NWLR part 773 page 543.

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22 It is submitted in response that the DW1 clearly signed the witness statement on oath, but the appellant's counsel is relying on the endorsement and return copy of the 1st and 2nd defendants' joint statement of defense instead of the Court's copy. That the failure to sign the witness statement on oath at pages 83 to 88 of the record of appeal was an omission and irregularity which cannot render the evidence of the respondents inadmissible; learned counsel referred this Court to Section 4 (2) and (3) of the Oaths Act, ANATOGU V IWEKA II (1995) 8 NWLR part 415 page 547 and SOLOLA V STATE (2005) 2 NWLR part 937 page 460. That also the appellant did not show how he suffered any miscarriage of justice as a consequence of the non signing of the statement, especially as the appellant did not object to the non signing, but went ahead to cross examine the witness on the said statement. RESOLUTION: The witness' statement on oath of the DW1 at pages 83 to 88 of the record of appeal is stamped by the commissioner of oath and dated the 29th of July, It was clearly not signed by the deponent, but the same statement at 15

23 pages 11 to 16 of the additional record of appeal is stamped and signed by the same commissioner of oath, in the same handwriting and clearly signed by the deponent in this case. It is very important to note that ex facie the main record of appeal was compiled by Miss Lynda Dunkwu, of Babalakin and Co., who signed as the appellant's counsel, and not by the registrar of the trial Court. That clearly underscores the respondent's vehement protestation that learned counsel to the appellant used an `endorsement and return' copy of the document, which was not signed, in compiling the record of appeal. That much is evident from page 74 of the record of appeal which contains the 1st and 2nd defendants' joint statement of defense, clearly marked 'end and return' on the top left corner, from which the unsigned witness statement on oath emanated. This to my mind clearly settles the question of whether the actual statement on oath was properly signed as required, because it is positive proof that the DW1 signed the witness' statement on oath as required, as borne out by the record, thus casting a persuasive inference which this Court is 16

24 bound to accept in the circumstances of this case, even without the additional record of appeal which learned counsel to the appellant urged this Court to discountenance. It is absurd in the circumstances of this case to refer to the additional record as an abuse of Court process, in view especially of the apparent irregularity of the record of appeal. It clearly is within the rights of the respondent to compile and transmit the additional record of appeal in this case, this is exactly what is contemplated by Order 8 Rule 6 of the Court of Appeal Rules Even if the additional record is discountenanced for failure to seek and obtain leave of Court, as urged upon this Court by learned counsel for the appellant, the witness' statement on oath will still be valid, by reason of Section 4 (2) and (3) of the Oaths Act which provides that: 4 (2) "no irregularity in the form in which an oath or affirmation is administered or taken shall: (a) Invalidate the performance of official duties; (b) Invalidate proceedings in any Court; or (c) Render inadmissible evidence in or in respect of which an irregularity took place in any proceedings. 17

25 (3) The failure to take an oath or make any affirmation and any irregularity as to the form of an oath or affirmation shall in no case be construed to affect the liability of a witness to state the truth." Having deposed to the witness statement before the commissioner of oaths in accordance with the Rules of the High Court of the Federal Capital Territory and the Oaths Act, the failure, if any, by DW1 to sign the copy of the witness' statement on oath contained at pages 83 to 88 of the record of appeal is clearly an irregularity, which should not render the deposition of DW1 inadmissible merely on account of such defect; this is so because since the evidence of DW1 is to be taken to have been given as if under oath, by reason of the deposition, clearly no miscarriage of justice would be occasioned by the failure to administer the oath, even if he is taken to have failed to sign the deposition; see NZEWI & ANOR V OKEKE & ORS (2008) LPELR-4659-CA and ANATOGU V IWEKA II(1995) 8 NWLR part 415 page 547. I do not subscribe to the argument of learned counsel for the appellant that the failure to sign the document is an error that affects the competence of the said 18

26 witness' statement on oath. If anything, it indeed is only an irregularity, especially as it did not affect the decision arrived at on the evidence, especially as it has not been having shown to have occasioned any miscarriage of justice. Ex facie, the document was evidently sworn to before 'a duly authorized person', i.e. the commissioner for oaths; see SOLOLA V STATE (2005) 2 NWLR part 937 page 460 and UDUMA V URINSI (2012) 7 NWLR part 1298 which aptly applies to this case. This is more so as the written statement on oath which was adopted at a later stage, on oath again, by the maker before he was cross examined is cured of any defect by reason of the subsequent oath of DW1 at page 235 of the record of appeal, in line with the principle in UDUMA V URINSI supra. It is very important also not to lose sight of the clear distinction between an affidavit and a witness statement on oath, because it is not necessary that all sworn documents or oath must comply strictu sensu with the provisions of Section 117 and 118 of the Evidence Act; see LAMBERT V OKUJAGU (2015) All FWLR part 808 page 552, where it was held that: 19

27 "...the Rules of Court do not intend to encrust the written statement on oath with the formal garb of an affidavit as tailored by Sections 107 to 120 of the Evidence Act, 2011." It is for these reasons that I now resolve this issue in favour of the respondents, against the appellant. Issue Three: Whether the Appellant proved its claim before the trial Court and was therefore entitled to judgment as per its claim. It is submitted for the appellant on this issue that if the respondents are found guilty of a breach of the agreement, then the appellant is naturally entitled to damages; learned counsel referred this Court to GKFI NIG LTD V NITEL PLC (2009) 8-9 NMLR 251 and GOVERNOR EKITI STATE V OJO (2006) All FWLR part 331 page That the appellant adduced evidence in proof of special damages it suffered upon the termination of Exhibit 6, by specifically pleading and tendering documents in support as per Exhibits 5, 9a, 9b, 13, 15, 19, 20, 21 and 22; learned counsel referred this Court to UTB NIG PLC V OZOEMENA (2007) 3 NWLR part 1022 page 448 and BAN-NELSON NIG LTD V MORO LG KWARA STATE (2007) 8 NWLR part 1037 page 623.

28 20

29 Learned counsel also urged this Court to grant a perpetual injunction as prayed, because the appellant has established a right in law and the basis for granting the injunction, he referred this Court to ANYANWU V UZOWUAKA (2009) 13 NWLR part 1159 page 445 and RECTOR KWARA POLY V ADEFILA (2007) 15 NWLR part 146 page 578. In response it is submitted for the respondents that the appellant failed to prove its claim at trial, and is therefore not entitled to judgment; learned counsel referred the Court to AJAGBE V IDOWU (2011) 5-7 part MJSC 80 and AGU V GENERAL OIL LTD (2015) 4 MJSC 128 page 142. That the conditions for awarding special damages where a breach of contract has been established has not been met by the appellant, learned counsel referred this Court to BAN - NIELSO NIG LTD V MORO LG KWARA STATE (2007) 8 NWLR part 1037 page 623 and APUGO & SONS LTD V OHMB (2016) 16 MJSC 71 page 125. Learned counsel further submitted that the claim for perpetual injunction can only be granted where a party has established a right in law, he referred this Court to ANYANWU V UZOWUAKA (1990) 4 NWLR part 146 page 578 and ADENIRAN V ALAO (1992) 2 NWLR part 223 page

30 That an order for perpetual injunction is an ancillary relief which cannot stand on its own, but upon an established legal right which it protects. RESOLUTION: The appellant's argument on this head is clearly premised on the resolution of issues one and two in its favour, unfortunately these issues were not resolved in its favour as hoped, because it failed to establish its entitlement to judgment. The issue of damages as claimed in this case arises only when the appellant satisfactorily establishes a breach of the contract in existence between the parties because damages for breach of contract are essentially a compensation to the plaintiff for the loss or injury suffered through that breach. Its objective is to place the plaintiff in the same position as if the contract has been performed. See OMEGA BANK (NIG.) PLC VS O.B.C. LTD (2005) 8 NWLR.(PT. 928) 547. Therefore in any action for breach of contract, the measure of damages is the loss flowing naturally from the breach; see GONZEE (NIG). LTD Vs NERDC (2005) 13 NWLR (pt. 943) 63. In this case not only has the appellant failed to establish a breach of Exhibit 6 by the 22

31 respondents, but by its own failing, the appellant has shown that it is actually the party in breach of the agreement, and the trial Court was apt when it held: "the plaintiff having failed to discharge its obligation by making the commitment payment within 30days of mobilizing to site, I find the termination of the contract by the 1st defendant vide Exhibit 10 valid in the present circumstances. I find that the plaintiff cannot claim under the agreement Exhibit 6 having failed to discharge its own obligations." The position of the law is settled by a long line of decided cases that the burden is always on that party, in this case the appellant, who seeks to enforce a perceived right under a contract to first and foremost fulfill the terms and conditions of the contract incumbent on him, if fails to discharge his obligations his claim crumbles as a consequence; and by its own showing, and in clear admission the appellant failed to do just that, when the only witness of the appellant stated at page 253 of the record of appeal that: "we did not pay the N100,000,000 to the 1st defendant as agreed 30 days upon mobilization to site." 23

32 It has to be stated clearly also that the appellant's claim for perpetual injunction is without basis in the circumstances of this case, because the appellant has not established any legal right in law to justify the grant of such an injunction. Perpetual injunction is not granted just for the asking, it is granted based on the determination of the rights of the parties, with the objective solely of preventing permanent infringement of those rights, and clearly no such right has been established to exists here to warrant the grant of such an injunction; see C.B.N. v AHMED (2001) 28 W.R.N. 38 and UNION BEVERAGES V PEPSICOLA (1994) 2 S.C.N.J It is also important not to lose sight of the fact that perpetual injunction is an ancillary relief which ought not be granted as prayed by the appellant in this case, because it cannot stand on its own, the appellant having failed to established a legal right which the Court can protect. This injunction is usually granted only where a party has successfully, proved its case on the balance of probability; it is never granted speculatively as sought in this case, see ADENIRAN V. ALAO (1992) 2 NWLR (pt. 223) 350 at

33 It is for these reasons that I now resolve this issue too in favour of the respondents, against the appellant. Having resolved all the three issues that call for determination in favour of the respondents, against the appellant, the appeal fails for lack of merit, and it is accordingly dismissed. Judgment of the trial High Court of the Federal Capital Territory, Abuja, by Honourable Justice Folashade Ojo, of the 6th of March, 2013 in Suit Number FCT/HC/CV/1951/10 is hereby affirmed. Appellant shall pay cost of N20,000 to the 1st respondent. TINUADE AKOMOLAFE-WILSON, J.C.A.: I read in draft the judgment just delivered by my learned brother, MOHAMMED MUSTAPHA, JCA. I am in agreement with the reasoning and conclusion and orders reached therein. EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, MUSTAPHA MOHAMMED JCA. I agree with the reasoning, conclusions and orders therein. 25

34 Appearances: B.B. Lawal Esq., with him, O.B. Omotehinse and A.B. Ige Esq. For Appellant(s) Chinedu Obienu, Esq., with him, U. Chiedulu, Esq. For Respondent(s)