Having made this clarification; I agree, in principle, that where a party to an action has proved his substantive claim there would be no justification to embark on the consideration of his alternative claim, and that alternative claims are considered and granted where the grant of the substantive claim is either not feasible, unjust, or inequitable
Karaye v. Wike LGC(21/6/2019) F
The applicant is by law permitted to ask for alternative relief by seeking for extension of time to appeal. In Xtoudos Services Nigeria Ltd & Anor v. Tarsei (W.A) Ltd & Anor (2006) 16 NWLR (pt. 1003) 533 at 555 paras F-G, which was cited and relied upon by learned counsel for the appellant/applicant, this Court had this to say:- "It needs to be stressed that there is nothing wrong for a party in an action to include in his pleading two or more inconsistent sets of material facts and claim reliefs there under in the alternative. It is proper to do so... But once one of them is granted, the other cannot be granted....Thus where there is a claim in the alternative, the trial Court will first consider whether or not the principal or main claim ought to have succeeded. It is only after the Court may have found that it could not for any reason grant the principal claim that it would only consider the alternative claim. This is settled law." See S.C.E.I v. Odunewo & Anor (1965) 2 ALL NLR 135; Metal Construction (W.A) Ltd. V. Chief Aboderin (1998) 6 SCNJ 161 at 170, (1998) 8 NWLR (pt. 563) 538; Agidigbi v. Agidigbi & Ors (1996) 6 NWLR (Pt. 454) 303; Merchantile Bank of Nig. Ltd v. Adalma Tanker & Bunkering Services Ltd (1990) 5 NWLR (Pt. 153) 747; Gaji & Ors v. Paye (2003) 5 SCNJ 20 (2003) 8 NWLR (Pt. 823) 583. I am of the firm view that, since this application is merely asking for alternative, it does not constitute an abuse of the Court's process. I therefore do not think it is necessary to go into the definition of the phrase "abuse of Court process", since this application is not meant to insult any Court process nor is it meant to annoy the applicant's opponents. The application is made to regularize an existing process. I agree with learned appellant's counsel that the case of R-Benkay v. Cadbury Nigeria Plc (Supra) is irrelevant and unhelpful to the respondents.
When alternative cases are alleged as in this case, the facts relating to them should be stated separately and not mixed up in order to show on what specific facts each alternative head of relief is claimed. See: Davy v. Garret (1877-1878) 7 Ch D 473 at 489.
METAL CONSTRUCTION (W.A.)
It cannot be disputed that either party to a suit may, in a proper case include in his pleadings alternative and inconsistent allegations of material facts, as long as he does so separately and distinctly. A plaintiff is thus entitled to plead two or more inconsistent sets of material facts and claim relief in the alternative thereunder. He may also rely on several different rights alternatively, although they be inconsistent. See: Philipps v. Philipps (1878) 4 QBD 127 at 134. However, where alternative claims are alleged, the facts relating to such claims ought not be mixed up so as to show on what facts each alternative head of relief is claimed. See Davy v. Garrett (1877-1878) 7 ChD. 473. In the same vein, a defendant may raise in his statement of defence as many distinct and separate, and therefore inconsistent defences as he may think proper. See: Berdan v. Greenwood (1877-80) 3 Ex D. 251 at 252;Coote v. Ford (1899) 2 Ch. 93 etc.
METAL CONSTRUCTION (W.A.)
I will add quickly as this is also settled, that there is nothing wrong in a plaintiff or party in an action, to include in his pleadings, two or more inconsistent sets of material facts and claim reliefs thereunder, in the alternative. In other words, it cannot be disputed that either party to a suit may, in a proper case, include in his pleadings, alternative and inconsistent allegations of material facts, as or so long as he does so separately and distinctly. A plaintiff is thus entitled to plead two or more inconsistent sets of material facts and claim relief in the alternative thereunder. He may also rely on several different rights alternatively although they may be inconsistent.
I will now deal with an alternative claim and the duty of the court in such a claim. Where a claim is in the alternative, the court should first consider whether the principal or main claim, ought to have succeeded. It is only after the court may have found that it could not, for any reason, grant the principal or main claim, that it would now consider the alternative claim. In other words, where there are alternative reliefs as in the instant case leading to this appeal, once one of the reliefs is granted, the other relief cannot be granted as there would be no need to do so.
The appellant by its pleadings sought for damages in respect of breach of contract, or the breach of duty arising from the tort of negligence, and the claims being in the alternative, the law permits the court to consider only one of the claims and base its damages on it. The other arguments of the learned counsel for the appellant are of no moment. My answer to this issue (3) is in the affirmative. The grounds of appeal covering the said issue fail, and they are dismissed.