BRIEF OF ARGUMENT

1.0 INTRODUCTION/PRELIMINARY STATEMENT

This is an appeal against the judgment of the High Court of the FCT Abuja delivered on the 17th October 2011 by Hon. Justice T.J. Stanley. The Notice of Appeal was filed on the ………………… The suit was commenced by writ of summons, and all other processes, in accordance with the rules of the trial Court, were frontloaded. Consequently, the writ of summons was filed along with the statement of claim, list of witnesses, witness deposition on oath, copies of the documents to be relied upon, and a Pre-trial counseling certificate. The Notice of Appeal was served on the Plaintiff/Respondent on the 12th day of March, 2012. In the Notice of Appeal, the Appellant raised four (4) grounds of Appeal.

2.0 ISUES FOR DETERMINATION

My Lords, from the 4 grounds of appeal in the Notice of Appeal, the following issues are humbly submitted for the determination of this Appeal:

1. Whether the trial judge was right in holding that there was no breach of contract.
2. Whether the trial judge was right in awarding the plaintiff the sum of N7m as balance of contract sum.
3. Whether the award of N4m as special damages and N3m as general damages to the plaintiff was proved in evidence.
4. Whether the judgment was not against the weight of evidence adduced at trial.

3.0 FACTS RELEVANT TO THE APPEAL

The plaintiff called two witnesses, an expert witness and her (plaintiff’s) secretary. The defendant called one witness, Mr. Tony (the company’s sales manager). After adopting his deposition on oath, PW1, the plaintiff’s secretary was cross-examined and she testified that she was not in Malaysia when the goods were delivered. PW2, the expert witness, also adopted his deposition on oath but on cross-examination could not prove his expertise and even posited that “Cashew nuts can be exported while still fresh”.

The defendant called one witness, the company’s sales manager, who after adopting his deposition on oath and on cross-examination testified that he received notification from the Malaysian company that the goods were not of merchantable quality as specified in the agreement marked as Exhibit A.

4.0 ARGUMENTS

The trial judge erred in law in holding that there was no breach of contract. It is trite law that for there to be a valid contract, there must be offer, acceptance, consideration and intention to enter legal relations. And that acceptance must be based on the terms of the offer which terms include the implied law position that the goods must be of merchantable quality; that the breach of this implied law term will entitle the innocent party to determine the contract. See the case of Gonzee (Nig.) Ltd v. NERDC (2005) 13 NWLR (PT 943) p. 634.

In the instant case, Exhibit A which is the agreement of the contract between the parties expressly provided that the goods must be of merchantable quality. Also, the evidence of DW1 was neither controverted nor challenged.

The trial judge erred in law by awarding the plaintiff a sum of N7m as contract balance. Having established the fact that there was a fundamental breach of the implied law term that the goods must be of merchantable quality, a breach of which entitles the innocent party to determine the contract. The plaintiff is not entitled to the balance of the contract sum since the defendant has lawfully determined the contract. See the case of Gonzee (Nig.) Ltd v. NERDC (supra).

The award of N4m as special damages and N3m as general damages was not proved in evidence. The law is that special damages must be strictly proved while general damages are awarded at the discretion of the Court and such discretion must be exercised judiciously and judicially based on credible evidence and upon a sound assessment. So that where the trial Court acted under a mistake of law and disregarded relevant facts in awarding general damages, such award will be set aside on appeal. See the case of FBN v. Excel Plastic Industry Ltd (2003) 13 NWLR (Pt 837).

In the instant case, the plaintiff did not specifically prove any circumstances entitling the plaintiff to the award of special damages. Also, the award of general damages was speculative and sentimental as opposed to a sound assessment based on the evidence adduced.

The judgment of the trial Court was against the weight of evidence. The law is that judgment should be given based on evidence adduced and in civil cases, the standard of proof is on the preponderance of evidence. See Section 134 of the Evidence Act 2011. In the instant case, the testimony of the plaintiff’s expert witness was discredited on cross-examination. PW1’s testimony on cross-examination was at variance with the plaintiff’s statement of claim, whereas the defendant’s witness’s evidence was unchallenged and uncontroverted.

This Honourable Court is therefore urged to resolve all these issues in favour of the Appellant/ Defendant, grant the reliefs sought and allow the appeal in that:

1. The trial judge erred in law in holding that there was no breach of contract.
2. The trial judge erred in law by awarding the plaintiff a sum of N7m as contract balance.
3. The award of N4m as special damages and N3m as general damages was not proved in evidence.
4. The judgment of the trial Court was against the weight of evidence.

DATED THIS 12th day of March, 2012

1. Gonzee (Nig.) Ltd v. NERDC (2005) 13 NWLR (PT 943) p. 634.
2. FBN v. Excel Plastic Industry Ltd (2003) 13 NWLR (Pt 837).

1. Section 134 of the Evidence Act 2011.