On Friday, the 1^st day of December 1989

The 1st defendant, Registrar of Companies. did not file any defence to the plaintiff's statement of claim.

The case proceeded to trial before M.B. Belgore, J. as he then was, on B 28th October, 1981.

After calling three witnesses for the plaintiff. counsel for the plaintiff closed the plaintiff's case on 14th January. 1982. Thereafter, counsel for the 2nd and 3rd defendants opened their case and put one witness in the witness box. In the course of the evidence in chief of the witness the case was adjourned for further hearing till 20/2/82. a Saturday. The witness continued his evidence in chief on the latter date. At the end, apparently. of his evidence in chief, his counsel, Mr. Awosesi, sought for an adjournment to call another witness which application was apparently dropped after Chief Olowofoyeku Counsel for the plaintiff, had opposed it. Thereafter Counsel for the plaintiff cross-examined the witness. And then without any indication in the record of proceedings before us in this appeal that the case for the 2nd and 3rd defendants had been closed, the case was adjourned till 6th May. 1982 for addresses of counsel. Nothing turned on this observation in this appeal so that is the end of that observation.

In his judgment on 11th November l982 after listening to the final addresses in the case on 27th October. 1982. the learned trial Judge found for the plaintiff on the issue of liability and awarded it damages as follows:

ln conclusion, I find the 2nd and 3rd defendant jointly and severally liable to the plaintiff to the extent of the following damages claimed in the Particulars of damages:

1.     Item 1(a) N10,800.00

2.     Item 2(a) 3 .800.00

3.     Item 2(b) 1,900.00

4.     Item 2(c) 5 .550.00

5.     Item 3 N24.391 .00

6.     General Damages N 65.000.00.

The award of N 65,000.00 for general damages was said by the learned trial Judge to be made up of the sum of N50,000.00 awarded as general damages simpliciter and the figure of N15.000.00 (It) representing the interest which the plaintiff would have earned on the total sum of N46.000.00 awarded the plaintiff in respect of heads of claims 1 (a). 2(a). 2(b). 2(c) and 3 above for the period of 5 years during which the money. was tied up in the venture which gave rise to the case in hand. So in fact the award of N15.000,00 has to do with the heads of claims I have just specified and not with the award under the head of general damages with which it is lumped.

The learned trial Judge rejected the head of claim under paragraph 9(4) for estimated loss of profits which the plaintiff said it would have earned in five years from the hotel project giving rise to this action - N1,913.800.00 -holding in doing so that there was no basis on the evidence before him upon which such an award could in law be grounded.

The declaratory judgment sought against the 2nd and 3rd defendants in claim 1(b) of the plaintiff's claims against the defendants was also refused. Claim 91(b) - fees paid to consultants was also refused by the learned trial Judge. I cannot find any pronouncement by the learned trial Judge on the declaratory judgment sought in claim 1(a) by the plaintiff against apparently the 1st defendant only. Again nothing turns on this in this appeal. So I say no more about it.

Both the 2nd and 3rd defendants, on the one hand, and the plaintiff, on the other hand were dissatisfied with the decision of the learned trial Judge. For their part the 2nd and 3rd defendants appealed against the whole decision, complaining (1) that the decision was a nullity having been given, according to them, outside the prescribed constitutional period of 3 months after final addresses and (2) that the decision was against the weight of evidence. For his part, the plaintiff, as respondent to the appeal of the two defendants filed under Order 3 Rule 14(1) of the Court of Appeal Rules a Notice of its intention to contend that the decision of the trial court of 11^th November, 1982 be varied as follows:

(1)    That the damages in paragraph 9(1)(b) of the statement 'of claim in respect of Consultancy work done by Messrs Idem Consultant totalling N26,500.00 be granted.

(2)    That Estimated loss of profits which the plaintiff/respondent could have earned in five years be increased to N1,913,800.00 as general damages.

 Total:     N 1,940,300.00

AND TAKE NOTICE that the grounds on which the respondent intends to rely are as follows:-

(1)    The learned Judge erred in law and on the facts in holding that the plaintiff/respondent did not give evidence to support his claim under Para. (1 )(b) when 1st plaintiff Witness gave evidence of work done by Idem Consultants of which he is also a Director. 

(2)    The learned Judge erred in law and on the facts in awarding N65,000 under General Damages when the best evidence given by the plaintiff/respondent of the loss it would suffer in five years remain unchallenged

The appeal came on for hearing in the Court of Appeal, Lagos Judicial Division on 15th October, 1984, (Coram Ademola, J.C.A., Nnaemeka Agu, J.C.A. (as he then was) and Kutigi, J.C.A.) on that day Mr. Okesola counsel for the 2nd and 3rd defendants, the appellants, informed the court that he was wholly with drawing the appeal of the appellants. Whereupon the lower court, ruled as follows:-

Appeal of the appellants is struck out and hereby dismissed Notice of intention to vary Judgment is now turned into a cross appeal

It does not appear from this order how it came about that the respondent's notice under Order 3 rule 14(1) of its intention to contend that the judgment of the trial court he varied became transformed into a notice of appeal under Order 3 rule 2. However, nothing turns on this in this appeal. Suffice it to say for the purposes of the present appeal, that the respondent's notice was treated rightly or wrongly in the lower court as a notice of appeal. And the appeal of the 2nd and 3rd defendants having been dismissed on 15/ 10/84, the lower Court proceeded to hear arguments without further ado on the cross-appeal into which it has converted the respondent's notice of his intention to vary the judgment of the trial court. Nothing again turns on the procedure in this appeal. So I leave it at that. So it transpired that arguments were taken in the lower Court only on the complaint of the respondent on the issue of damages. In other words, the question whether the 2nd and 3rd defendants were not in breach of the agreement upon which the plaintiff sued was not a live issue in the lower court.

In the lead judgment of the lower court, per Nnaemeka-Agu, J.C.A. ~ (as he then was) given on 11th December, 1984, it was held as follows:-

In the case of consultancy fees I must point out that all I can see on record is its being claimed under paragraph 9(1)(b) of the claim and a statement by 1 P.W. that if the project would not go on, they claim damages as therein itemized So I must hold that the learned Judge was right to have dismissed that item of the claim.

The appeal as it relates to expected profit is, in my opinion different. The appellants were categoric in the evidence of P.W. 1 that they were basing their claim on this item on the feasibility report of consultants who had been commissioned by both sides, whose report, Exh. b, was tendered without objection and P.W. 1 was not cross-examined on it nor was the projected profit by the experts impugned or contradicted in any way. In my view, the item should have been accepted as proved ………………………………………

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Indeed when 1 P.W. testified that item 4 of the claim was based on the feasibility report, one would have expected that appellants, if they did not agree that the report was correct. to have produced some evidence to show it or at least challenge it under cross-examination but they did not. The learned Judge should have regarded the item as duly proved. See Obi Obembe v. Wemabod Estates Limited (1977) 5 S.C. 115, p.139-140. It appears to me that although the learned Judge was right in holding that the experts' estimate of profit was subject to some probabilities, it was for the appellants, in the above circumstances, to bring those improbabilities, if any, which could impugn an award based on that report, if they could. Having failed to do so, there is clearly a case made out for an award based on it.

Before I conclude, I shall refer to a matter which was not originally an issue in this appeal, but which was raised by the court. That issue is as to whether, if we agree that the respondents - cross-appellants - are entitled to an award for expected profit, that can stand with the award of general damages. Alhaji Rasaq conceded it that both of them could not stand. I entirely agree with him as it would amount to double counting to award general damages as well as expected profit. I should therefore disallow the sum of N50,000.00 with interest, awarded as general damages.

In the result I dismiss the appeal by the appellants (2nd and 3rd defendants in the court below) against the judgment of Belgore, J., in Suit No.FRC/19/79. I hereby vary the award of damages by disallowing the award of N50,000.00 (with interest) as general damages but substituting an award of N1,913,800.00 as loss of profit. The appeal against the rejection of claim for consultancy fees is rejected.

Both Ademola and Kutigi, JJ.C.A. concurred in the judgment.

The 2nd and 3rd defendants are dissatisfied with the judgment of the court below. This time the plaintiff is satisfied with that judgment including the order of that court over-turning the award of the trial court of N50,000.00, with interest awarded as general damages in favour of the plaintiff even when no challenge was made to that award by the 2nd and 3rd defendants in the Court of Appeal. So that order must inevitably remain undisturbed in this court.

By the ruling of this court given on 27th October, 1986 this court per the lead ruling of Bello, J.S.C. (as he then was), pursuant to an application by the 2nd and 3rd defendants as appellants ordered as follows:-

(1)     Time within which the appellants may seek leave of this Court to appeal is hereby extended to today.

(2)    leave is hereby granted to the appellants to appeal on ground 5 only within 2 weeks from today,

(3)     N25 costs to the respondents.

It appears crystal clear from this order that the 2nd and 3^rd defendants were granted leave to appeal on ground 5 only which reads thus:-

The Court of Appeal erred in law by shifting the onus proof of loss of profit on the defendants.

In short, the appeal of the 2nd and 3rd defendants was by the order of 27th October, 1986 limited to the points raised in ground 5 only which can, compendiously, be referred to as issue of damages only. So it was no small surprise to me when counsel for the 2nd and 3rd defendants, Mrs. Adebayo in the brief of arguments filed on behalf of the 2nd and 3rd defendants gave notice under Order 6 rule 5(1) of the Rules of this court of the appellants' intention in the course of the hearing of this appeal to apply for leave to introduce new points not taken in the court below, to wit, points touching the 6 issue of liability of the 2nd and 3rd defendants on the contract sued upon by the plaintiff as opposed to the issue of damages flowing from the breach of the agreement. The application of the 2nd and 3rd defendants in this regard was summarily refused on 1&9/89 when this appeal came on for hearing. The appeal was then heard as it had to be on the issue of damages only.

Briefs of arguments were filed on both sides. And as I have just said, oral arguments were necessarily restricted to the arguments in the brief of arguments of the 2nd and 3rd defendants on the issue of damages arising from their only ground of appeal before us i.e. ground 5 which I have copied above.

Before setting down the issues arising for determination in this appeal, I must refer to the submission to us in the respondent's brief of arguments that there is no jurisdiction in this court to entertain any appeal from the Federal High Court. I am satisfied that the submission is well founded. Section 213 of the Constitution of the Federal Republic of Nigeria 1979 gives this court the jurisdiction to the exclusion of any other court of law in Nigeria to hear and determine appeals from the Court of Appeal. So it is an appeal from the decisions of the Court of Appeal, albeit on appeal from the decisions of a state High Court or a Federal High Court to it, that will lie to this court. So in the instant case, we are dealing with the decisions of the Court of Appeal. I have earlier on in this judgment stated those decisions which for ease of reference I repeat here, as per the lead judgment of Nnaemeka-Agn, J C. A. as he then was:-

I hereby vary the award of damages by disallowing the award of N50,000.00(with interest) as general damages but substituting an award of N1,913,800.00 as loss of profit. The appeal against the rejection of claim for consultancy fees is rejected.

The appeal of the 2nd and 3rd defendants to the Court of Appeal having been withdrawn it was dismissed in that court. I have also shown above that the present appeal of the 2nd and 3rd defendants is limited to the issue of damages. The latter must because of what I have said above about the jurisdiction of this court to take appeals only from the decisions of the Court of Appeal be qualified in one important respect namely the issue is limited to the variation by the Court of Appeal of the quantum of damages awarded the plaintiff Company against the 2nd and 3rd defendants consequent upon the appeal of the plaintiff company in that court. In effect the appeal of the 2nd and 3rd defendants must be limited to the figure of N1,913,800 which the Court of Appeal awarded the plaintiff company as loss of profit contrary to the rejection of that head of claim by the trial court.

Counsel for the 2nd and 3rd defendants has identified in all 16 issues as arising for determination in this appeal. It will be a waste of paper and effort to set down all the issues in this judgment. In the light of what I have hitherto said in this appeal the only issue arising for determination in this appeal is that part of issue I in the brief of arguments of the 2nd and 3rd defendants which says:-

Whether there was any or sufficient proof of

(i)    ..........................................................................................................................................................................................................................

(ii)     loss of expected profits entitling the plaintiff respondent to the claim of N1,913,800.00 as claimed either as general or special damages.

This head of claim is contained in para. 9(4) of the Reply of the plaintiff winch the learned trial Judge considered and rejected for the following reasons: -

The damages under Clause 9(4) is a special one while that under 9(5) is a general one ………… Special damages have to be specifically or strictly proved though it need not be proved in any particular way, but a Judge must not base it on his own estimate when evidence is provided. Messrs Dumez (Nig.) Ltd. v. Patrick Nwaka Ogboli (1972) 1 All N.L.R. (part 1) 241. I will consider both items of damages.

Clause 9(4) of the particulars of Claims asked for N1,913,800.00 as

estimated loss of profits which the plaintiff could have earned in five years from the Hotel Project. ---------------------------------------------------------

the claim as to anticipated profit is a special one which must be established by evidence. Chief J. K. Odumosu v. African Continental Bank Ltd. (1976)11 S.C. 55. There was no oral evidence as to how this sum was arrived at. Mr. Apara in his evidence only stated:-

If the project will not proceed, I claim damages itemised in my paragraph 9 of my Reply. Item 4 on paragraph 9 was based on feasibility study.

This, to my mind by itself, is no proof of any special damage as Coker, J.S.C. in Oshinjinrin & Ors. v. Aihaji Elias & Ors. (1970)1. All N.L.R. 153 stated what is required of a person claiming special damages is that he

should establish his entitlement to that type of damages by credible evidence of such a character as would suggest that he indeed is entitled to an award under that head, otherwise the general law of evidence as to proof by preponderance or weight usual in Civil cases operates.

Mr. Apara stated that his estimated profit was based on feasibility survey which was Exhibit 'B'. I am of the view that estimate of profit in Exhibit B cannot come under the principle laid down by the Privy Council in Abel Boshali v. Allied Commercial Exporters Limited (1961) All N.L.R. (Part 4) 917. Abel Boshali's case envisaged that a witness testified and was liable to cross-examination to test his veracity and the basis of his calculation. Exhibit 'B' is a mere projection subject to various probabilities.

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The Gross operating profit relates to profit before property and Corporation taxes, insurance, interest and amortisation of the loan but allows for the deduction of a management fee of four per cent of total revenue and 12 per cent of gross operating profit.-

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------------------------------  Why was 5 years taken as the period for claiming profits? ----------------------------------------------------------------------

------------------ The second question is, how was the figure N1,913,800.00 arrived at?. The estimated profit given in Exhibit 'B' was for the whole hotel and the plaintiff was only 35% Shareholder of the whole project. Where is the evidence of the total profit of which 35% of it for 5 years would come?

Taking into account, the lack of any oral evidence of anticipated profit and considering all the probabilities upon which Exhibit "B' was compiled, I do not find established, any degree H of evidence of the special damages under item 9(4).

The 1st P.W. Mr. Olakunle Apara, did not mince words when he said in his evidence at the trial of this case that the head of claim for estimated loss of profits the plaintiff could have earned in 5 years from the hotel profit i.e. N1,913,800.00 in paragraph 9(4) of the plaintiff's reply was based on the feasibility study admitted in evidence without any objection to it as Exh. B. And Indeed no other evidence was led by the plaintiff in this regard. Mr. Apara who put the document in evidence was not its maker. In the final analysis the consideration of the propriety or otherwise of the award of the sum of N1 ,913,800.00 made by the Court of Appeal in favour of the plaintiff as loss of anticipated profits boils down to the examination of the evidential or probative value of Exh. B in this regard.

Before I consider the probative or evidential value of Exh. B as regards proof of estimated loss of profits, I must say that Mr. Molajo, S.A.N. is right in his submission to us that since the exhibit is not inadmissible per Se and at the worst is only admissible subject to conditions its having been admitted in evidence without objection constitutes a waiver of the conditions to which its admissibility is subject. (See Okeke v. Obidife (1965)1 All N.L.R. So and Igbodim v. Obianke (1976) 9-10 S.C. 179).

So, Exhibit B is legal evidence in this case. But as this court has pointed out in Sodimu v. N. P.A. (1975) 4 S.C. 15 it is only admissible for all legitimate purposes.

Because of the submissions of Counsel on Exh. B. outside of the general principles governing proof of damages, which I am now about to consider, it is necessary I state before I do so how Exh. B came into being. By para. 5 of the plaintiffs statement of claim which was admitted by para. of the defence, it was pleaded as follows:

It was agreed by the parties that the plaintiff should commission a feasibility report the cost of which was to be defrayed by the plaintiff and subsequently passed to the project if the studies proved positive.

The plaintiff also pleaded in para. 9 of the statement of claim and this again was admitted in para. 7 of the defence as follows:-

9.     An agreement defining the obligations of the parties was signed on 9th December, 1977.

The said agreement entered into on 29/12/77, is Exh. A in these proceedings.

It was no doubt pursuant to the agreement pleaded in para. 5 of the Statement that the plaintiff got Exh. B, the feasibility study prepared in February, 1977 at a cost of N10,000.00to him about 11, months before the parties signed the agreement defining their interests and commitments in the project - an International Hotel in Ibadan - the subject-matter of the agreement Exhibit A.

Exh. A is not silent as to the rights and obligations that could flow from the feasibility study - Exh. B - prepared by the plaintiff. In this regard the following paragraphs of Exh. A are relevant,.

7.     Feasibility Study:

To determine the cost and profitability of the project Fairlakes has commissioned a feasibility study hereof, which was carried out by Messrs. Pannel Kerr Foster and Company as Consultants, at a total cost of Nl0,800.00 (Ten Thousand Eight Hundred Naira). The feasibility study has been taken by Novotel as reference for the preparation of both the economic brochure and the technical date of this project.

9.     Preliminary Expenses:

Preliminary expenses including the cost of the Feasibility Studies incurred by any of the partners prior to the incorporation of the Company shall be capitalised, provided they are supported by appropriate evidence and are necessarily incurred on account of the project.

17.     Agreement Subject to Review:

If in the opinion of any party to this agreement, satisfactory progress in the execution of the provisions of this Agreement has not been made at the end of the period of one year from the signing thereof, this Agreement shall thereafter be liable to be reviewed at the request of such party; the review may involve the modification of any part of the Agreement. In the event of cancellation the expenses already incurred shall be reimbursed in proportion to the shareholding of the parties provided that the party in default shall not be entitled to any reimbursement.

It is against this back ground of Exh. B that Counsel for the 2nd and 3rd defendants Mrs. Adebanjo submitted in their brief of arguments as follows:-

The makers were not called. The document (exhibit "B") was made by experts in their professional capacity. No foundation was laid regarding the failure to call them. Nobody else could have cross examined on the contents thereof. Exhibit "B" admitted and tendered, not to establish any liability or claim but merely as evidence that, in accordance with exhibit "A" the' document came into existence as stipulated - Please see pages 47 lines 5 - 11 on the record of proceedings. Admissibility in the circumstances could not confer on it any probative value. The accuracy of it was not thereby established. Its contents were not prepared with the material issues in this suit in the contemplation of its makers.

On the other hand Mr: Molajo, S. A. N. counsel for the plaintiff has submitted in the brief of arguments of the plaintiff as follows:-

16.    When therefore there was no litigation in view, the parties have recognised the Feasibility Report as an authentic reference for (1) the cost, and (2) the PROFITABILITY of the project.

19.    It is submitted further that both parties have accepted the opinion of the experts who prepared the Feasibility Report as an authentic estimate of the profits and expenses of the project. The appellants cannot therefore be heard to say that the feasibility report is NOT a report belonging to and accepted by the appellants and the respondent.

On the admitted facts in this case, it must be taken that Exh. B. as submitted by Mr. Molajo, S.A.N. and in fact this was not seriously contested by Mrs. Adebayo, was the product of a joint commission by the parties in the case before us.

The feasibility report Exh. B contains no doubt a statement of estimated operating costs which include estimated gross operating profit. Against this statement of estimated operating Results the firm of chartered accountants Messrs Pannell Fatzpatrick & Co. who prepared it, entered the following caveat at page 1 of Exh. B namelv "We do not warrant that the estimates will be attained." And as to the purpose for which the feasibility study has been prepared the same firm of accountants said at page 2 of Exh. B:-

This report and the related Statement of Estimated Income and Expenses have been prepared for your use and guidance in determining the feasibility of the project in relation to its cost and for possible use in securing primary mortgage financing or negotiation of a lease, management or franchise agreement. As is customary in assignments of this nature, neither our name nor the material submitted may be included in any prospectus, newspaper publicity or as part of any printed material, or used in offerings or representations in connection with the sale of securities of participation interest to the public.

Having regard to the caveat entered against the estimated operating results in Exh. B by the firm of accountants who made it and more importantly, to the use and limits, again, according to the same accountants, to which Exh. B could and should be put, I have no doubt that the figures relating to estimated gross profit in it cannot be regarded as a pre-estimate by the parties in this case of the damage, in terms of loss of profit which any party to the contract for the construction of the hotel project would suffer in the event of breach of the contract by the other party or parties. Exh. B. is designed, as it says, to guide the parties involved in the hotel project in determining the feasibility of the venture in relation to its cost.

If I had had any doubt as to what I have just held, which I don't, the doubt could have been dispelled by the provisions of paragraphs 9 and 11 and 17 of Exh. A which I have copied above. The combined effects of paragraphs9, 11 and 17 of Exh. A are:

1.     The parties have accepted Exh. B and what it says as to the use it should be put namely reference paper i.e. something consulted for information; and

2.     Cost of the preparation of the feasibility study is an item of preliminary expense properly incurred by the party concerned prior to incorporation of the company which shall be capitalised; and

3.     In the event of cancellation or breach of the agreement, Exh. A the cost of preparation of Exh. B is an expense which the party who had incurred it is entitled to recover.