ADDAX PETROLEUM DEVELOPMENT NIGERIA LIMITED V. LOYCY INVESTMENT COMPANY LIMITED & ANOR (2017)

In The Court of Appeal of Nigeria

On Tuesday, the 23rd day of May, 2017

CA/OW/69/2014

Before Their Lordships

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria


Between

ADDAX PETROLEUM DEVELOPMENT NIG. LTD –Appellant

AND

1. LOYCY INVESTMENT COMPANY LTD
2. CHIEF ALOYSIUS OKPARA –Respondents

…………………….A…………………….

TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by Mrs. M. A. Essien SAN vide the Notice of Appeal filed on 1/8/2013. It is against the decision of Imo State High Court sitting at Owerri delivered on 30/7/2013.
The plaintiffs’ claims against the defendant at the lower Court were as per Paragraph 27 of their amended statement of claim which read thus:
WHEREFORE the claimants claim against the defendant is as follows:
(a) A declaration of the honourable Court that the claimant are the contractor duly selected and awarded the contract number TB-2002-280 for the resurfacing of Ugbele road, Izombe and the scope of the includes any variation/modification on the original specification.
(b) A declaration of the honourable Court that the defendant is in breach of said contract when it awarded the same contract to another company.
(c) A declaration of the honourable Court that the claimant are entitles to the sum of N51,627,792.00 or such sum proved being remuneration due the claimants in quantum meruit as contained in the invoice of 17th 
January, 2005 sent to the defendant for the service the claimants rendered to the defendant in the course of execution of contract number TB-2002-280 Resurfacing of Ugbele Village Road.
(d) An Order of the honourable Court awarding to the claimants the sum N51,627,792.00 or such as are proved before the honorable Court being remuneration due the claimant in quantum meruit as contained in the invoice of 17th January, 2005 sent to the defendant for the services the claimants rendered to the defendant in the course of execution of contract number TB-2002-280 Resurfacing of Ugbele Village Road.
(e) Sixty million Naira only as general and special damages for breach of contract.
PARTICULARS OF SPECIAL DAMAGES

(a) AMOUNT FROM CONTRACT:
(i) Outstanding balance due and payable on 95% completion of the contract achieved by the plaintiff as agreed by both parties 
N4,351,040.00
(ii) V. A. T. 5% = N217,552.00
(b) AMOUNT DUE FROM LABOUR KEPT AT THE INSTRUCTION OF THE DEFENDANT:
(i) 3 drivers one for the steel roller, one for pail loader and one for tile boiler for 304 days at the rate of N1800 per driver per day = N1800 x 3 = N1,641,600.00.
(ii) 2 guards to guard equipments day and night at the rate of 2000 per day per guard for 304 = N1,216,000.00
(c) AMOUNT DUE FROM EQUIPMENT KEPT AT THE DEFENDANT’S INSTRUCTION
(i) One (1) tyre steel roller at the rate of N50,000 per day for 304 days = N15,200,000.00
(ii) One (1) pay loader at the rate of N60,000 per day for 304 days =N18,250,000.00
(iii) One (1) tile boiler at the rate of N40,000.00 per day for 304 days = N12,160,000.00.
Total = N56,036,192.00
FIFTY-SIX MILLION, THIRTY SIX THOUSAND, ONE HUNDRED AND NINETY TWO NAIRA ONLY.
(d) AMOUNT DUE FROM MATERIALS:
(i) 20 trailer load of chippings at the rate of N150,000 per trip
(ii) = N3,000,000.00
TOTAL AMOUNT OF SPECIAL DAMAGES =N59,036,192.00
FIFTY-NINE MILLION, THIRTY SIX THOUSAND, ONE HUNDRED AND NINETY TWO NAIRA ONLY.
(e) Cost of this action.
Parties filed and exchanged pleadings. The learned trial Judge after hearing the parties gave judgment in favour of the 1st claimant in the following terms:-
in the final analysis, the 1st claimant has proved its case against the defendant in terms claimed in the statement of claim and I award damages for N56,036,192 (fifty six million, thirty six thousand one hundred and ninety two naira) as claimed. Costs of this action shall be N50,000.

Miffed by the above decision, the appellant filed Notice of Appeal containing 6 grounds of appeal. The grounds of appeal are as follows:-
GROUNDS OF APPEAL
1. The learned trial judge erred in law when he held that contract number TB-2002-280 awarded by the Appellant to the Respondent for the resurfacing of Ugbele Village road was not frustrated as a result of the riot embarked upon by the Ugbele community.
Particulars:
i. By Clause 11.2 of the Contract Agreement, a force majeure occurrence includes: riot, war, invasion, hostilities.
ii. It was agreed by the Appellant which affected the completion of the contract Agreement for the resurfacing of Ugbele village
 road.
iii. Both parties in their respective pleadings stated that riot occurred during the performance of the contract.
iv. The learned trial Judge did not give effect to the terms of the contract as entered into by 
the parties.

…………………….B…………………….

2. The learned trial Judge erred in law when he awarded the sum of N4,698,320.00 (Four Million, Six Hundred and Ninety Eight Thousand, Three Hundred & Twenty naira) being the balance of the contract sum to the Respondents.
Particulars:
i. The milestone achieved by the Respondents in the execution of the contract did not necessitate any further monetary award.
ii. The Respondents had already been paid the sum of N5,192,880.00 which represented quantum meruit for the milestone achieved prior to the riot.
3. The learned trial Judge misdirected himself and thereby erred in law when he held that the Appellant had an obligation to construct asphalt road and was responsible for the supervening event that led to the riot.
Particulars:
i. The resurfacing of Ugbele village road was purely an initiative of the Appellant for the benefit of its host community.
ii. There was no agreement between the Ugbele community and the Appellant that the Ugbele community road will be by asphalt laying.
iii. No evidence was adduced that the Appellant signed a memorandum of understanding with the Ugbele community for asphalt road.
4. The learned trial Judge erred in law when he held that the Appellant was in breach of contract No: TB-2002-280 for the resurfacing of Ugbele Village road.
Particulars:
i. The contract was frustrated due to the riot embraced upon by the Ugbele community.
ii. No evidence was led to the Appellant suspension of the contract.
5. The learned trial judge misdirected himself and thereby erred in law when he held that the Respondents stopped work in obedience of an order from the Appellants’ representative on site.
Particulars:
i. The Respondent did not give any form of evidence indicating the so-called representative of the Appellant who gave the alleged oral instruction to the Respondents to stop work.
ii. By the terms of the contract all oral instruction must be subsequently confirmed in writing.
iii. No such oral instruction was proved to have been given and confirmed in writing.
iv. The evidence led in Court showed that the Respondents stopped work due to the riot embarked upon by the Ugbele community.
6. The learned trial Judge misdirected himself and thereby erred in law when he held that the equipment and labor were left on site at the instruction of the Appellant and that the cost incurred thereon was never denied or challenged by the Appellant and awarded the sum of N51,627,792.00 (Fifty-One Million, Six Hundred and Twenty-Seven Thousand, Seven hundred and Ninety-two Naira) as remuneration due to the Respondents in quantum meruit as contained in the invoice of 17th January, 2005.
Particular:
i. The Respondent did not give any form of evidence indicating the so-called representative of the Appellant who gave the alleged oral instruction for equipment and labour to remain on site.
ii. By the Terms of the Contract all oral instructions must be confirmed in working.
iii. No such oral instruction was confirmed in writing.
iv. The Respondents lift equipment on site on the erroneous belief that the contract for asphalt laying will be awarded to them after the riot.
v. Appellant denied and challenged the cost allegedly incurred in its pleading and during cross examination.
vi. There was no oral or written instruction from the Appellant that equipment and labour should be left on site during or after 
riot.
The record of this appeal was deemed transmitted on 4/2/2015. Parties subsequently filed and exchanged briefs of argument.
The appellants brief of argument was filed on 12/2/2015. The brief was prepared by Olusola Laniyan learned counsel for the appellant.
Learned appellants counsel formulated two issues for determination as follows:-
1. Whether the learned trial Judge was right in holding that Contract N: 2002-280 between the Appellant and the 1st Respondent was not frustrated and that the Appellant was in breach of the contract?
2. Whether the learned trial Judge was right in awarding the sum of N4,351,040.00 as balance of the contract sum and the sum of N51, 792.00 as mount allegedly for equipment and labour left on site on the alleged instruction of the Appellant?
The Respondents brief of argument was settled by Chidi Aloy-Nzofutachi, their solicitors and deemed filed on 18/8/2017. Learned Respondents counsel adopted the issues nominated by the appellant for determination.
I shall adopt the two issues formulated by parties in the determination of this appeal.
SUBMISSIONS OF COUNSEL AND RESOLUTION OF ISSUES
ISSUE 1
Whether the learned trial Judge was right in holding that Contract No: TB 2002-280 between the Appellant and the 1st Respondent was not frustrated and that the Appellant was in breach of contract.

…………………….C…………………….

The facts of this case are not complex. The 1st plaintiff (now the 1st Respondent) a Civil Engineering Company, is the Managing Director of the 1st Respondent. The appellant however was an oil and exploration and production company which carried out business in Nigeria.
It was the practice of the appellant to build roads and other infrastructures as part of it social responsibilities for the host communities. The appellant appointed the 2nd respondent to build a road for Ugbele Village in Izombe in Uguta Local Government area of Imo State and awarded a contract for the surface dressing/resurfacing of Ugbele village Road under contract No: TB 2002-280 dated 28/5/2002 at a contract value of N9,891,200. Pursuant to the contract, the 1st respondent commenced work and according to the design had achieved 95% of the project when the appellants’ representative on site ordered the 1st Respondent to suspend work because of the protests by the host community against the construction. The 1st Respondent complied and suspended operations but its workers and equipment remained on site. The host community wanted an asphalt road contrary to what the appellant commissioned the 1st Respondent to do.
According to the learned trial Judge in his finding a page 281 of record of appeal:-
The defendant indeed sorted itself out with the host community by agreeing to asphalt the road the claimant was working on for surface dressing but the new development is the defendant was awarded the asphalting job to another company to work on the same road even when the claimant had bided for the additional asphalting of the road.

Was the appellant in breach of the contract or was the contract frustrated?
In S.E.CO. LTD v N.B.C.I. (2006) 7 NWLR (PT 978) 198, Oguntade J.S.C. explained it thus:-
The doctrine of frustration simply means that if the performance of a contract depends on the continued existence of a state of affairs, when the destruction or disappearance of the state of affairs without the default of either of the parties will discharge them from the contract. Frustration, it is submitted only occurs under the conditions that are totally out of the control of the parties.
Rhodes – Vivours JCA (as he then was) in DIAMOND BANK LTD V UGOCHUKWU (2008) 1 NMLR (PT 1067) 
explained the doctrine of frustration further thus
Frustration would occur where it is established to the satisfaction of the Court that due to a subsequent change in circumstances which was clearly not is the contemplation of the parties, the contract has become impossible to perform. The doctrine of frustration has been restricted by the Court to:
(a) Situations where the supervening event destroys a fundamental assumption and
(b) Where the force majeure clause are drafted into the contract. There must be unjust to expect the parties to perform those rights. Some examples are:-
(1) Where the subject matter of the contract has been destroyed or is no longer available
(2) Death or incapacity of a party to a contract
(3) The contract has become illegal to perform as a result of a new legislation

(4) A contract can be frustrated on the outbreak of war
(5) Where the commercial 
purpose of the contract has failed.
I shall resolve this issue in the light of the above. Learned counsel for the appellant in his submission on this issue submitted that the claimant did not prove that the frustration was due to the fault of the defendant. He added that the onus of proof was on the claimant who asserted that it was due to the defendant’s fault. He cited C.C.B. V ONYEKWELU (1999) 10 NWLR (PT 623) 461.
He contended that where the majeure occurrence during the performance of a contract which resulted in frustration of the contract in such a situation both parties to the contract would be discharged. He cited SAKA V IJUH (2010) 4 NWLR (PT 1184) 426.
He argued that the appellant was not responsible for the supervening event that led to the protest. He added that Clause 11.2 (a) of Exhibit D provided for a force majeure occurrence and that the protest by the host community was completely beyond what was contemplated by the parties. He urged the Court to hold that the trial Judge was wrong in holding that contract No: TB 2002-280 between the parties was not frustrated and that the appellant was in breach of the contract.

…………………….D…………………….

The respondents’ counsel however asserted that both parties agreed that it was the letter from the host Ugbele Community dated 19/12/2002 that stopped that execution of the contract. This, learned counsel submitted did not constitute force majeure within the meaning and contemplation of Clause 11.2 of Exhibit d. He relied on NWOLISAH V NWABUFOR (2011) 6 (PT 11) MJSC. 80 at 83 and other cases.
He argued that the mere fact that the execution of a contract had become more expensive or difficult than earlier anticipated by the parties did not mean that the contract had been frustrated. For a contract to be a frustrated by an event, the event must have struck at the root of the contract. He relied on NBCI v STANDARD (NIG) ENGINEERING CO. LTD (2002) 8 NWLR (PT 768) 104.
He finally urged the Court to affirm the decision of the lower Court.
In his Reply Brief, appellants counsel submitted that the Respondents pleaded the existence of an agreement which they failed to tender in Court. He urged the Court to invoke. S. 167(a) of the Evidence Act 2011 against the Respondents.
In further reply to the submissions of the Respondents counsel, learned appellant’s counsel argued that the reason why the asphalting of the road was re-awarded was contained in Paragraph (7vii) of the Amended Statement of Defence. He urged the Court to look at its records. He cited AGBAREH V MIMRA (2008) 2 NWLR (PT 1071) 411.

Learned Appellant???s counsel further argued that the pursuant to Clause 12.1 of Exhibit D, appellant could not stop the work unless by a formal notice. He submitted that parties were bound by the terms and conditions of their contract.
I have carefully considered the submissions of learned counsel on this issue. I have also carefully gone through the facts of this case. I find it difficult to imagine and believe that the appellant without a prior discussion with the host community of Ugbele Village Izombe, just jumped on a particular road and started construction therein. It seems reasonable to me, that the appellant would first ascertain the need and desire of the community before embarking in its social responsibility. It is a social responsibility because it depends on the need of the society. It is to meet their desire and aspiration of people of such society. If it is imposed on the people it might lead to an unfavorable reaction from them because their feelings have not taken into consideration before the commencement of the project. It is unbelievable and unacceptable that the appellant did not consult the host community before embarking on the project. If the appellant did not, it was careless of it and if it did but did not comply with the details of such discussion then again it was an act of carelessness.
It is implicit in the doctrine of frustration that the parties did not default in aborting the contract. See S.E.CO.LTD V NB.C.I. (Supra). If there was default then the doctrine of frustration could not be invoked.
The contention of the appellant at the lower Court was that the contract was frustrated by the protest of the host community. Can this contention hold water? I shall answer this question from the defence put up by the appellant itself at the lower Court.
The defendant (now appellant) called a sole witness  by name Engineer Clement Nwana. His witness statement on oath is on pages 191 -196 of record of appeal. Paragraphs 8, 9, 10, 11, 14, 15-16 of the adopted statement are very pertinent. They read as follows:-
1. The Defendant usually awards contract for the construction of roads within its host communities to indigenous contractors that are duly registered with the Defendant.
2. To encourage good relations with its host community, the said communities sometimes submit names of indigenous contractors to be defendant for them to select or chose a company for the execution of any such contract awarded for the benefit of the community.
3. The contract for the surface dressing/resurfacing of Ugbele Village road was awarded to the 1st plaintiff by contract code No: TB 2002-280 dated 28th May, 2002 captioned Resurfacing of Ugbele Road.
4. The value of the contract was the sum of N9,891,200.00 and it was awarded in accordance with the defendant’s policies and guidelines.
5. When the agreement was entered into between the parties, the 1st plaintiff was paid the sum of N5,192,880 (including 5% VAT) as the first milestone which represents over 50% of the contract sum. The voucher details shall be relied on during trial, also the letter and invoice of the 1st plaintiff dated 5th July, 2002 shall be relied upon 
during trial.

…………………….E…………………….

6. The 1st plaintiff has not performed its own part of the contract agreement as alleged as it has only performed 52% of the contract.
7. The 1st plaintiff not perform 95% of the contract as alleged or at all.
8. The said Ugbele community by a letter dated 19/12/02 issued a stop work order to the 1st plaintiff and a photocopy of the said letter was forwarded to the Defendant by the 1st plaintiff also by a letter dated 19/12/02 wrote to the Defendant informing it of the stop work order by the community.
9. There was no Agreement between the community and the Defendant as to the type of road to be constructed. The Defendant awarded the contract for the surface dressing of the Ugbele community road as part of its corporate social responsibility. It was only after the 1st plaintiff commenced work on the road that the Ugbele community disrupted the work by rioting and protesting against the surface dressing of the road.
10. The Defendant never stopped the 1st plaintiff from completing the contract and the Defendant never suspended the job, instead the 1st plaintiff abandoned the job without completing same.
On its own showing, it is clear that there was a discussion with the host community before the contract was awarded. See Paragraph 8 of appellants statement on oath. It is however surprising and shocking that the type of road to be constructed was not discussed. This is unbelievable! No wonder there was a protest which clearly was caused by the default of the appellant. The appellant’s default actually caused the termination of the contract. The appellant cannot now turn around to take advantage of its default by invoking the doctrine of frustration.
Again Paragraphs 21-30 of the statement on oath of appellant clearly show who terminated the contract. The paragraphs read thus:-
1. On or about September 2003, the Defendant agreed with the community to award a new contract that would make the road asphalt road.
2. The requirement of asphalt by the community necessitated a new contract for which fresh quotations were received from several other contractors and new pre-qualifications screening exercise of contractors was carried out.
3. This was done by an open tendering exercise which involved other bidders whose names were submitted by the Ugbele Community including the name of the 1st plaintiff. The said Ugbele Community made this recommendation by letters dated 17/09/2003 and 07/11/2003, the Defendant shall rely on same at the trial.
4. The contract for the asphalting of the road eventually awarded to Chrisbrown International Ltd. another company after it had passed the technical and commercial bid exercise.
5. The 1st plaintiff also took part in the tendering exercise and submitted a fresh quotation along with the other bidders. The Defendant met with all the other companies involved in the pre-qualification exercise for the asphalt road.
6. The Defendant’s choice of contract to execute the asphalt tarring was purely based on competence and ability to execute the job to the satisfaction of its host community.
7. At no time during the pre-qualification exercise did the Defendant make any commitment or promise to award the contract to any of the companies and the Defendant was not obliged to award the asphalt surfacing to the 1st plaintiff or any other company.
8. A new contract with a totally different scope of work for the asphalting was eventually awarded as stated above.
9. The 1st plaintiff completed only 52% of the contract for which the 1st plaintiff had already paid the sum of N5,192,880.00 out of N9,891,200.00 which was the contract sum.
10. The Defendant never held any meeting with the plaintiffs, though the 2nd plaintiff visited the Defendant’s office without any formal invitation for the purpose of persuading the Defendant to award the new contract to the 1st plaintiff.
If the resurfacing of the road contract was still ongoing, why did the appellant award a new contract that would make the road an asphalt road on or about September 2003 and why was it re-awarded to a new contractor? Obviously, the two contracts could not co-exist! The award of the new contract was an implied termination of the resurfacing of the road contract.
In short, the appellant breached the contract. The contract was not frustrated. I am therefore in total agreement with the learned trial Judge when his lordship held that the defendant was in breach.
I also hold that the contract No: TB 2002-280 between the appellant and the 1st Respondent was not frustrated but breached by the appellant. I therefore resolve issue No. 1 in favour of the Respondent.

…………………….F…………………….

Issue No 2
Whether the learned trial Judge was right in awarding the sum of N4,351,040.00 as balance of the contract sum and the sum of N51, 627,792 as amount incurred by the respondents for equipment and labour left on site at the instruction of the appellant.
Mr Olusola Laniyan for the appellants submitted that the Respondent was not entitled to the sum of N51,627,792 which was awarded as expenses incurred based on directive/instructions from the Appellant’s representative on site for Respondent’s equipment to be left on site. Learned counsel posited that the award was not in accordance with the terms of the contract. He argued further that it was not within the contemplation of the parties of the time, the contract was entered into.
He submitted that the Respondents failed to prove that the equipment was left on site on the instruction of the appellant. He submitted that contracts were made by the parties and Courts would not read into a contract what was not in the contemplation of the parties to the contract. He cited BAKER MARINE LTD V CHEVRON NIG LTD (2006) 13 NWLR (PT 997) 276 at 287- 288: EAGLE SUPER PACK (NIG) LTD V ACB PLC. (2006) 19 NWLR (PT 1013) 20 at 49, NIGERIAN PRODUCTS MARKETING BOARD V ADEWUNMI (1972) ALL NLR (PT 2) 433 at 438.

Learned counsel urged the Court to interfere with the wrong findings and conclusion of the learned trial Judge.
Chidi Aloy  Nzofutachi for the Respondents however on this issue submitted that the respondents were entitled to the award of the sum of N4,351,040 as the unpaid balance of the contract sum. He cited OKONGWU v N.N.P.C. (1989) 20 N.S.C.C. (PT 111) 118 at 126 and urged the Court to hold that the innocent party in a breach of contract was entitled to damages and the measure of damages was such that would place the aggrieved party in a position he would have been if the contract had subsisted.
Learned counsel for the Respondents further submitted that the lower Court awarded to the Respondents:
(i) Payment of the full contract value as if the contract was not breached.
(ii) Payment for the equipment and their operations who were kept at the construction site on the instruction of the appellant for the period longer than the duration the contract was expected to last.
The above he submitted flowed naturally from the breach. He therefore urged the Court to resolve this issue in the favour of the Respondents.
I have also deeply considered the arguments of learned counsel on this issue. In my respectful view, it does not lie in the mouth of the appellant to contend that it did not instruct the Respondent to keep their equipment and their operators at the construction site in the circumstances of this case.
The learned trial Judge aptly described the scenario on page 282 of the record of appeal thus:
As for claims relating to equipments and men of the 1st claimant left on site while the disagreement of the host community and the defendant persisted which particulars are given in the statement of claims, the 1st claimant in evidence said the equipment men were on site for 304 days at the request of the defendant from December 2002 to 1st November, 2003 at costs stipulated. The defendant did not challenge this. Accordingly the 1st claimant is entitled to its as pleaded being N51,627,792.00 based on the estimates pleaded. The claimants’ equipments were kept on site awaiting further directives from their employer who was resolving their ineptitude with their host community as it pleaded and gave evidence of, the defendant did not instruct the 1st plaintiff on whether or not to demobilize its equipment on site but allowed the claimants to remain on site with its equipments and men which attracted huge costs to the 1st claimant. These costs flowed from the breach of contract occasioned by the defendant and are remediable by the defendant. The daily cost of the equipments was specified in the contract Exhibit D. The appellant ought to have directed the Respondents to leave the site when it knew that the unrest caused by its carelessness necessitated the making of another contract that would not be performed by the Respondents. The carelessness of the appellant infected every segment of the contract. Since it did not so direct the Respondents, it was reasonable that the appellant bore the cost of keeping of the equipment and their operations at the construction site.

…………………….G…………………….

What is the measure of damages to be awarded in breach of contract cases? Oguntade JSC. in EAGLE SUPER PACK (NIG) LTD V ACB PLC (2006) 19 NWLR (PT 1013) 20, explained it thus:
In the preparation of the claim for as well as in the consideration of an award in consequence of a breach of contract, the measure of damages is the loss flowing naturally from the breach and incurred in direct consequence of the violation. The damages recoverable are the losses reasonably foreseeable by the parties and foreseen by them at the time of the contract as inevitably arising with the other. See also ISOLA V AFRI BANK (2013) 2 S.C.N.J. (PT III) 917 at 935; GONZEE NIGERIA LTD V N.E.R.DC. & ORS (2005) 13 NWLR (PT 943) 634.
This is a case of claim for damages in a contract part – completed. The measure of damages in a case like this was considered by the Apex Court in WARNER & WARNER INT. LTD. V FHA (1993) N.W.L.R. (PT 297) where OMO JSC. said:
The statement of the law on the measure of damages where there is a breach by the employer resulting in the contract being partly performed is set out in Law and Practice of Building Contract by Keating 3rd Edition at pages 158/159 thus: where the contract work has been partly carried out and the contract is brought to an end by the employers reputation, the contractor has the option of either suing for damages, when the measure of damages is normally the loss of profit on the unfinished balance plus the value of the work done at contract prices or of ignoring the contract and claiming a reasonable price for work and labour done on a quantum meruit. The later course will be chosen if a reasonable price is higher than the contract price.
Ayoola J.S.C. in DANTATA V MOHAMMED (2000) 7NWLR (PT 664) 176 at 198 further explained it thus:
When there is a service breach of contract, one of the consequences is that the innocent party who has elected to rescind the contract de future is released from further obligations under the contract and for the primary obligation of the defaulting party to perform, there is substituted by operation of law a secondary obligation to pay damages for the loss resulting from failure to perform the primary obligation.

My duty as an appellate Judge in respect of assessment of damages awarded by the trial Court is not to disturb the award unless it is manifestly too high or too low or is based on the wrong principles of law. See ANN LTD V CIROMA (1996) 1 NWLR (PT 423) P.156, and ADIM V N. B. C. LTD (2010) 9 NWLR (PT 1200) 543.
It is the law that I should not because if I had tried the matter, I would have awarded a higher or lower amount upset the award of damages of the lower Court. See OLUROTIMI V IGE (1993) 8 NWLR (PT 311) 257. See also ACME BUILDERS V KADUNA STATE WATER BOARD & ORS (1999) 2 NWLR (PT 590) 288.

I have deeply considered the damages awarded by the learned trial Judge in the light of the above principles of law and the facts of this case. The damages awarded in my respectful view flow naturally from the breach of contract.
In respect of the N4,351,040 awarded, there is abundant evidence on record to support this. This is what would have been paid to the Respondent had the contract not been breached. I therefore hold that it was rightly awarded.
On the remaining N51,627,792 damages awarded in favour of the Respondent, I am also of the view that there is unchallenged evidence sustaining the award.
The Managing Director of the 1st claimant Chief Aloysius Okpara’s adopted witness statement on oath is on pages 145 – 154 of the record of appeal. In Paragraphs 11, 15, 16, 17 of his statement on oath, he deposed as follows:
1. The claimant wanted to demobilize and remove its equipments from site as the disagreement continued but the defendant insisted that the claimants keeps the equipments so that the host community does not think that the job is abandoned and creates more problems for the defendant in their operations. The claimant obeyed the instructions of the defendant and remained on site. The claimants equipment were on site at the request of the defendant for 304 days from 20th December, 2002 until 1st of November, 2003 when the claimant recovered the equipments back to yard at Port Harcourt.
2. The claimant also wrote to the defendant indicating interest in continuing the job in accordance with their agreement but the defendant ignored the claimant. The claimant also sent another quotation to the defendant to accommodate the variation but the defendant also ignored the claimant as the claimant was neither invited for negotiation nor was the contract awarded to them.

…………………….H…………………….

3. The claimant also went on visit to the defendant’s offices at Lagos on the 27th day of October, 2004 and held discussions and meetings with many of its staff on the need to proceed on the job subject to such modification/variation as the defendant may wish and how to get the claimants paid for the jobs they did. Present at the meetings from the claimant’s side are Chief Aloysius Okpara, Engineer M. C. Akukwe, Brr. C Khidiulu and Engr Hilary Emezige. From the defendant’s side are Mrs Victoria Iroro, Mrs Y Haruna, Mrs Frances Peters-Omaruaye and Engr Eke Ogba.
4. The defendant agreed in that meeting to allow the claimant continue the job subject to variation and the variation accommodated the number of days the claimant’s equipment were kept idle due to the suspension of work. Minutes were taken of the meeting and the minutes are in possession of the defendant. The claimants have given notice to the defendant to produce the original copies of the minutes of the meetings held on the 27th day of October, 2004.
5. The daily ratings of equipment were captured in the agreement between the claimant and defendant which was signed on the 28th day of May, 2002 and the contract was scheduled to be completed within 6 months. The number of days the claimant’s equipment remained at the defendant’s site shall be paid for and the defendant knows this as a fact and made provisions for the payment at the commencement of the contract.
6. The following equipments belongs to the claimants were rated by the defendant and kept at the site during the suspension of work on the instruction of the defendant. The equipment are:
i. One Vibrating Road Roller 7 Tons (tyre-Steel Roller) rated at N55,000.00 per day.
ii. One Pay loader 210 H/p rated at N60,000.00 per day.
iii. One Tile boiler rated at N40,000.00 per day.
One of the site engineers of the 1st claimant gave similar evidence. This aspect of their respective evidence was not challenged under cross-examination. It was therefore open to the learned trial Judge to act on the unchallenged evidence before him. See OMOREGBE V LAWANI (1980) 3-4 S.C. 70, OGUNYADE V OSHUNKEYE(2007) 15 NWLR (PT 1057) 218, MABAMIJE V OTTO (2016) LPELR-SC 156/2005.

After perusing the record of proceedings, I fully agree with the learned trial Judge when his lordship found as follows:
As for claims relating to equipments and men of the 1st claimant left on site while the disagreement of the host community and the defendant persisted which particulars are given in the statement of claims, the 1st claimant in evidence said the equipment men were on site for 304 days at the request of the defendant from December 2002 to 1st November, 2003 at costs stipulated. The defendant did not challenge this. Accordingly the 1st claimant is entitled to its as pleaded being N51,627,792.00 based on the estimates pleaded. The claimants’ equipments were kept on site awaiting further directives from their employer who was resolving their ineptitude with their host community as it pleaded and gave evidence of, the defendant did not instruct the 1st plaintiff on whether or not to demobilize its equipment on site but allowed the claimants to remain on site with its equipments and men which attracted huge costs to the 1st claimant. These costs flowed from the breach of contract occasioned by the defendant and are remediable by the defendant.The daily cost of the equipments was specified in the contract Exhibit D.

In my respective view, the award of N51,627,792 made by the learned trial Judge is unimpeachable.
I am unable to disturb the award of damages made by the learned trial Judge.
I resolve this issue in favour of the Respondents.

This appeal lacks merit. It is accordingly dismissed with N60, 000 cost in favour of the respondents.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the leading judgment prepared by my learned brother TUNDE O. AWOTOYE, JCA. I am in complete agreement with the manner in which the issue considered in the appeal were resolved.
According, I too hold that the appeal lacks merit and hereby dismiss same also abide by the order in relation to costs as contained in the leading judgment.
ITA GEORGE MBABA, J.C.A.: I had the privilege of reading the draft of the illuminating lead judgment just delivered by my learned brother T.O. Awotoye J.C.A. I agree with his reasoning and conclusion that the appeal lacks merit.
I think this is a matter appellant could have conveniently settled with Respondent, when it came to decide to award the new contract to another person. Having allowed the Respondent to remain on site for Appellant’s purposes, if Appellant thought the Respondent was not capable of handling the new contract to do the asphalting of the Road, Appellant had a duty to negotiate with Respondent to end the engagement without need to resort to litigation.
I too dismiss the appeal and abide by the consequential orders in the lead judgment.

Appearances

C. C. Chikere for O. O. Laniyan –For Appellant

AND

Chidi Alloy Nzofutachi with him, Chidozie Adiele –For Respondents 

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