In The Supreme Court of Nigeria
On Friday, the 1st day of December 1989
SC 169/1986
Before Their Lordships
Andrews Otutu Obaseki …… Justice, Supreme Court
Augustine Nnamani …… Justice, Supreme Court
Muhammadu Lawal Uwais …… Justice, Supreme Court
Saidu Kawu …… Justice, Supreme Court
Salihu Modibbo Alfa Belgore …… Justice, Supreme Court
Abdul Ganiyu Olatunji Agbaje …… Justice, Supreme Court
Abubakar Bashir Wali …… Justice, Supreme Court
Between
Attorney-General of Oyo State
Commissioner for Trade, Industries & Co-operatives, Oyo State …….
Applicants
And
Fairlakes Hotels Limited-The Registrar of Companies …… Respondents
Judgement of the Court Delivered by Abaje, J.S.C.
In the Federal High Court holden at Lagos the plaintiff Company’,. claimed against the defendants, The Registrar of Companies. The Attorney-General of Oyo State and The Commissioner for Trade, Industries and Co-operatives. Oyo State jointly and severally or in the alternative as follows:-
The plaintiff claims against the defendants jointly and severally or in the alternative as follows:-
1. Declaration:-
(a) That the Memorandum and Articles of Association of New Oyo Hotels Limited presented to the 1st defendant for registration since April. 1978, and on which a duty of N18,756.00 was paid is entitled to be registered notwithstanding,’ the fact that the subscribing representative of the 2nd and 3rd defendants has not been Able to produce his tax clearance certificate.
(b) That the 2nd and 3rd defendants or either of them is not entitled to obstruct the registration of the said New Oyo Hotels Limited for the objects for which it was intended, or in any way substitute for the plaintiff any other company or person as financial partner In the proposed new Government hotel for Ibadan.
2. Further or alternatively to 1(b) Damages (general and special) in the sum of Five million Naira (N5,000,000.00) against the 2nd and 3rd defendants jointly and severally for the loss suffered or to be suffered by the plaintiff for breach by the 2nd and 3rd defendants of an agreement entered into between 1977 and 1978, to operate an international hotel in Ibadan in co-operation with the plaintiff on a joint-venture basis.
Pleadings were ordered in the case by MB. Belgore. J., as he was then, on 28th July. 1981. After the plaintiff’s statement of claim and a joint statement of defence for the 2nd and 3rd defendants to it had been filed, the plaintiff by motion on notice applied for an order for extension of time within which to file a reply to the defence of the 2nd and 3rd defendants. The application was granted by M.B. Belgore, J. as he then was, on 13th May, 1981.
Pursuant to this order a reply to the defence of the 2nd and 3rd defendants was filed on the same day i.e. 13/5/81. It was in this document, Reply to the defence of the 2nd and 3rd defendants that the particulars of the damages claimed by the plaintiff company against the defendants appeared for the first time as reflected in para. 9 of the Reply which as subsequently amended reads thus:-
Particulars of Damages as amended on the 28th day of October, 1981
Particulars of Damages:-
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:
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 of evidence of the special damages (estimated profits) under item 9(4) (of the Statement of Claim). (parenthesis and italics mine).
In the Court of Appeal the decision of the learned trial Judge was reversed for the following reasons given by Nnaemeka-Agu, J.C.A. (as he then was) and concurred with by Ademola and Kutigi, JJ.C.A. –
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, Exhibit 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. I find some support in this from the dicta of the Supreme Court in S.A. Obanor v. Ehigie Obanor (1976) 2 S.C. 1 where their Lordships, per Madarikan, J.S.C. said at pages 4 –5 –
…The gravamen of his argument was that Mr. Talabi being an expert whose evidence remain unchallenged the lower court should have accepted his evidence unless there was good reason to reject it. Counsel relied on the case of Seismograph Services Ltd. v. B.E. Onokpasa (1972)1 All N.L. R. 343 and in particular, invited our attention to the observation at page 345 where this court said:-
We are of the view, therefore, that if the learned trial Judge had applied the correct test, he would have come to the conclusion that the only expert opinions before him were those of the defence experts, and so unless for good reasons otherwise should have accepted them.
We think there is great force in this submission. Indeed when P.W. 1 testified that item 4 of the claim was based on the feasibility report, one would have expected the appellants, if they did not agree that the report was correct, to have produced some evidence to show it or at lease (sic) challenged 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) S.C. 115 at p.139-140. It appears to me that although the learned trial 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 probabilities, 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 ………..
In the result I dismiss the appeal by the appellants (2nd and defendants in the Court below) ………….. I hereby vary the award of damages by disallowing the award of N50,000.00 (with interest) as general damages but substituting award of N1,913,800 as loss of profit. (italics mine).
Now the present case is distinguishable from the cases of Obanor; Seismograph Services Limited, and Obi Obembe (supra) and even Boshali’s case (supra). In the latter cases, the testimonies of the experts concerned, were given by the experts themselves in person; so that the admission of their evidence was not governed by the provisions of section 90 of the Evidence Act, Cap.62 as was the position in the case at hand. Where a document is admitted in evidence under section 90, regard must be had to the provisions of section 91 of the Evidence Act in determining what weight is to be attached to the document. Sub-section (1) of section 91 states –
91 (1) In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by this Act, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts.
It, therefore, follows that it is not sufficient to say that where a document written by an expert is tendered in evidence and that document or the testimony through which it is tendered, if unchallenged, then it must be acted upon. The document is certainly subject to scrutiny by the trial Court and its contents could, in the process of the scrutiny, be rejected if there is reason to do so, as was done in the present case by the learned trial Judge. In my opinion, the Court of Appeal was in serious error when it reversed the decision of the learned trial Judge.
Accordingly, I too will allow this appeal and it is hereby allowed. The decision of the Court of Appeal awarding the sum of N1,913,000.00 to the respondents as special damages is hereby set aside. In its place I substitute the award of N50,000 which was made by the learned trial Judge. The appellants are entitled to costs against the respondents, which I assess at N500.00.
