GEORGE & ANOR v. ABAK LOCAL GOVT & ANOR (2020)

GEORGE & ANOR v. ABAK LOCAL GOVT & ANOR

(2020)LCN/14030(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Monday, March 30, 2020

CA/C/151/2018

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

1. GODWIN GEORGE (JP) 2. EKEMINI MULTIPURPOSE COOPERATIVE SOCIETY APPELANT(S)

And

1. ABAK LOCAL GOVERNMENT 2. VICTOR MORGAN (Secretary, Abak Transition Committee RESPONDENT(S)

RATIO

DEFINITION OF A CONTRACT

A contract was defined in the case of BEST (NIG.) LTD. VS. BLACKWOOD HODGE NIG. LTD. & ANOR. (2011) LPELR-776 where the apex Court held:
“A contract may be defined as a legally binding agreement between two or more persons by which rights are acquired by one party in return for acts or forbearances on the part of the other. In effect a contract is a bilateral affair which needs the ad idem of the parties, therefore where the parties are not ad idem, the Court will find as a matter of law that an agreement or contract was not duly made between the parties. Odutola vs. Papersack (Nigeria) Limited (2006) 18 NWLR Pt. 1012 pg. 470. Olowofoyeku vs. A G Oyo State (1990) 2 NWLR Pt. 132 pg. 369, Oreint Bank (Nigeria) Plc. vs. Bilante International Limited (1997) 8 NWLR Pt. 515 pg. 37, Societe General Bank (Nigeria) vs. Safa Steel and Chemical Manufacturing Limited (1998) 5 NWLR Pt. 548 pg. 168.”
The most important element in a contract is consideration as held in the case of CHABASAYA VS. ANWASI (2010) LPLER-839(SC) as follows:
“The Court below stated the elements of a valid contract which are, offer, acceptance, consideration and an intention to enter into legal relations. That for a simple contract to be binding there must be consideration which must move from the promise.” PER NIMPHAR, J.C.A.

WHAT IS AN ENFORCEABLE CONTRACTUAL RELATIONSHIP

For a more detailed explanation, see A.G. GOMBE STATE VS. GADZAMA (2014) LPELR-23423(CA) wherein the Court said:
“At this juncture, I think, it is pertinent to know what is an enforceable contractual relationship in law. In FK Construction Ltd. v. NDIC (2013) 13 NWLR Pt.1371 p.390 @ 406 – 407, it has been enunciated that a contract is an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law. It is a promise or a set of promises the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty. Parties must reach a consensus “ad idem” for a contract to be regarded as binding and enforceable. The two or more minds of the parties must meet at the same point, event or incident. Where they say different things at different times, they are not ad idem and no valid contract is formed. The meeting of the minds of the contracting parties is the most crucial and overriding factor or determinant in the law of contract. Furthermore, in Best (Nig.) Ltd. vs. BH (Nig.) Ltd. (2011) 5 NWLR Pt.1329 P.95 @ 127, the Supreme Court defined a contractual relationship to mean a legally binding agreement between two or more persons by which rights are acquired by one party in return for acts or forbearances on the part of the other. It is a bilateral affair which requires the ‘ad idem’ of the parties. See Odutola vs. Papersack (Nig.) Ltd. (2006) 18 NWLR Pt.1012 P.470; Orient Bank (Nig.) Plc. vs. Bilante Int’l Ltd. (1997) 8 NWLR Pt.515 P.37 and S.G.B. (Nig.) Ltd. vs. Safa Steel and Chemical Manufacturing Ltd. (1998) 5 NWLR Pt.548 P.168.” PER NIMPHAR, J.C.A.

THE THREE BASIC ELEMENTS FOR THE FORMULATION OF A CONTRACT

It is elementary to state that there are three basic essentials to the formulation of a contract. These are: (a) agreement; (b) Contractual intention; and (c) Consideration. The normal test for determining whether the parties have reached an agreement is to determine whether an offer has been made by one party and accepted by the other. In considering whether an enforceable contract has been formed or entered into, there are certain factors to be considered. In Amana Suits Hotels Ltd. vs. PDP (2007) 6 NWLR Pt.1031 P.453 @ 476 it was held by the Court that for a contract to be validly formed or entered into there must be: (i) offer (ii) Acceptance (iii) Consideration (iv) Intention to create legal relationship, and (v) Capacity to enter into contract. All the five (5) elements or ingredients enumerated supra must be satisfied before there can be a valid contract in law. A contract cannot be legally entered into if any of these elements or ingredients is not satisfied or fulfilled. See Amana Suits Hotels Ltd. vs. PDP (2007) 6 NWLR Pt.1031 P. 453 @ 476; Okubule vs. Oyegbola (1990) 4 NWLR Pt.147 P.723 and PTF vs. Uwamu (2001) 5 NWLR Pt.705 P.112.

The formation of contract is therefore governed by the making of an offer by the offeror and the acceptance of it by the offeree. The offer and the acceptance constitute an agreement of the two parties as “consensus ad idem”, that is, the intention of both parties are same. Therefore, for a contract to be valid in law, there must be an offer and an acceptance. An acceptance of an offer may be in writing, by conduct or by other means agreed to or acceptable to the parties. See Johnson Wax (Nig.) Ltd. vs. Sanni (2010) 3 NWLR Pt. 2010 P. 235 @ 245. In Neka B. B. B. Manufacturing Co. Ltd. vs. ACB Ltd. (2004) NWLR Pt. 858 P. 521 @ 554, the Supreme Court held that:- “It is trite law that for a contract to exist there must be an offer and an unqualified acceptance of the offer and a legal consideration. Indeed, there must be mutuality of purpose and intention. The two contracting parties must agree. In other words, there must be an offer and an acceptance.” InJohnson Wax (Nig.) Ltd. vs. Sanni (2010) 3 NWLR Pt.1181 P.235 @ 245, this Court, per DONGBAN-MENSEM, J.C.A.; had this to say. ”It is trite law that the formation of contract is not governed by rigid but flexible rules, namely, that there must be a definite offer by the offeree and been communicated to the other party called the offeree who accepts the offer unless the offeror, the first party, dispenses with such communication.” In other words, a contract is formed once there is an offer by the offeror to the offeree which is accepted by the offeree backed by consideration. At that point in time, the parties to the contract are said to be ad idem or in agreement and that agreement or contract is binding on both parties and is enforceable by action. It has been held in the case of Yaro vs. Arewa Const. Ltd. (2007) 17 NWLR Pt.1063 P.333 @ 377 that an agreement or a contract is formed where there exist: (a) an offer; (b) an acceptance; (c) consideration (d) capacity to enter into contract and (e) intention to create legal relationship. PER NIMPHAR, J.C.A.

THE RULE THAT GOVERNS THE CONSTRUCTION OF CONTRACT DOCUMENTS

Furthermore, there was nowhere in the contract documents where the question of the Appellants being licensee was mentioned. No party or the Court can read into a contract document what is not in it, see THE NORTHERN ASSURANCE CO. LTD. VS. WURAOLA (1969) LPELR-25562(SC) which held thus:
“It is trite law that in the construction of documents the primary rule is that effect should be given to the literal contents in their ordinary way as they appear on the documents and that anything which does not appear ex facie on such documents should NOT be imported into them.” PER NIMPHAR, J.C.A.

BREACH OF CONTRACT

A breach of contract was restated in ADEDEJI VS. OBAJIMI (2018) LPLER- 44360 (SC) thus:
“Suffice to say, that when a party to a contract fails, neglects, or refuses without a lawful reason or excuse to perform the obligation he undertook under the contract, or when such a party performs the obligation defectively or makes it impossible for himself to perform the contract, a contract has been breached. Please see: BEST NIGERIA LTD. VS. BLACKWOOD HODGE (NIGERIA) LTD. & ORS. (2011) 5 NWLR (Pt. 1239) 95 where this Court held per Fabiyi JSC (as he then was) that:- “There is no gain-saying the point that a breach of contract is committed when a party to the contract without lawful excuse fails, neglects or refuses to perform an obligation he undertook in the contract or incapacitates himself from performing same or in a way back down from carrying out a material term.” See also ADEOTI & ANOR VS. AYORINDE & ANOR (2001) 6 NWLR (pt.703) 336.”Per BAGE, J. S. C. PER NIMPHAR, J.C.A.

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice, Akwa Ibom State sitting at Abak and delivered on the 12th October, 2017 in suit No. HA/32/2015 wherein the Court below dismissed the claim of the Appellants and entered judgment for the Respondents. Dissatisfied with the decision, the Appellants filed a Notice of Appeal on the 4th December, 2017 setting out 3 grounds of Appeal.

The facts leading to this Appeal are amenable to brief summary. The Appellants approached the Court below through a writ of Summons and claim the following reliefs:
1. A DECLARATION that the 1st defendant (Abak Local Government) has violently breached its contract with the plaintiff.
2. AN ORDER of perpetual injunction retraining the defendants from closing the private motor park open by the plaintiff on the authority of the 1st Defendant.
3. N100,000,000.00 (One Hundred Million naira) being general damages for the unlawful act breach of contract by the defendants.
4. The cost of this action.

With pleadings settled the claim went to hearing and upon a consideration of the

closing addresses, the Court below dismissed the claim thus this appeal.

The Appellants Brief settled by UTIBE NWOKO, ESQ., is dated 8th August, 2018 and filed on the 9th August, 2018; it distilled a sole issue for determination as follow:
Whether having regards to the State of pleadings and the Evidence adduced, the Learned Trial Judge was wrong to have dismissed the Suit of the Appellants?

The Appellant submitted that it is fundamental that any decision reached by every Court must be based on the evidence before the Court. The Court cannot act on conjectures and speculations. Any decision held contrary to the evidence before the Court will be held perverse, he cited the case of SAGAY VS. SAJERE (2000) LPELR- 2976(SC) 13 and ANYANKPELE VS. NIGERIAN ARMY (2000) 13 NWLR (Pt. 684) 209

The Appellant made reference to EXHIBIT D the letter of Respondents withdrawing the approval given to the Appellant to operate a motor park. It is settled that the documents tendered and admitted in Court are like words uttered and do speak for themselves. They are more reliable and authentic than words from vocal cords. He cited the case of

AIKI vs. IDOWU (2006) 9 NWLR (Pt.984). The Appellant observed that the Respondent did not deny this letter, and submitted that facts admitted needs no other proof. He cited Section 50 and SECTION 123 of the Evidence Act, 2011

In submitting further, the Appellants stated that their sole issue for determination can only be determined in the affirmative, laying firm reliance on the uncontroverted evidence as furnished to the Appellants through their lone witness. It is trite that uncontroverted evidence is deemed admitted and the Court is bound to rely on same, in supporting his argument he cited the case of CBN VS. OKOJIE (2015) 14 NWLR (Pt. 1479) @ 231, YESUFU VS. ADAMA (2010) 5 NWLR (Pt. 1188) 522 @ 539, OKIKE VS. L.P.D.C (2005) 15 NWLR (Pt. 949) 7 @ 471. The Appellants submitted that from the totality of the uncontroverted evidence, they have established that there was a contractual agreement binding and the Respondent is subject to conditions which are encapsulated in EXHIBIT B. Appellant argued that without more the Appellant religiously adhered to, especially the payment of due as evidenced in EXHIBIT C and it is on the premise of EXHIBIT B that the Appellants

embarked on expending funds, erecting structures for the purpose of carrying on their business as approved by the Respondents and the Appellants fulfilled their contractual obligations under the contract and with due diligence. The rent paid by the Appellants to the Respondents was still running and yet to expire when the Respondents encroached on the Appellants’ motor park and locked same as evidenced in EXHIBIT E & G, the Appellants never breached any of the conditions of approval as spelt out by the Respondents to warrant the gross breach meted out on them. He cited BABATUNDE VS. B.O.N Ltd. (2011) 18 NWLR (Pt. 1279) 738 – 761.

The Appellants held that parties to any legally enforceable agreement of whatever form are bound by the terms and conditions thereto, and the Court is enjoined to enforce same accordingly. See WILLIAMS vs. WILLIAMS (2014) 15 NWLR (Pt. 1430) 213.

Learned senior counsel to the Appellants submitted further that the doctrine and Principle of UBI JUS IBI REMEDIUM is still applicable in our legal system. And where there is a proven legal right, there should be a remedy. He cited HARKA AIR SERVICES (NIG) LTD. vs. KEAZOR

(2011) 13 NWLR (Pt. 1264) 329; EMIRATE AIRLINE vs. NGONADI (no.2)(2014) NWLR (Pt.1413) 506.

The Appellants urged the Court to hold that the Appellants having established the existence of a contractual relationship between them and the Respondents and the grave breach of same by the Respondents, justice in this circumstances can only demand that the Appellants be granted their claims to which evidence has been furnished and evidence adduced has not been challenged or controvert.

In response, the Respondents argued that as shown in Exhibits A & B, the 1st Respondents granted the Appellants approval to operate Motor Park in exercise of her constitutional right to establish and regulate motor parks and also acted within the confines of her constitutional right when they withdrew of the approval granted the Appellants to operate a motor park, the power is derived from Section 7(5) of the Constitution of the FRN 1999 as amended and Fourth Schedule to the Constitution of Nigeria as amended.

The Respondents submitted that the Court has no jurisdiction to restrain the performance of a Constitutional duty. He cited IGP vs. UBAH (2015) 11 NWLR (Pt. 147) @ 405.

The Respondents further submits that all the documents tendered by the Appellants and the authority cited by the Appellants’ counsel in the Appellants’ brief of argument do not prove that the Respondents who had power to grant approval to the Appellants to established motor park did not have equal power to withdraw the approval granted to establish the park. They accordingly urged the Court to discountenance the argument of the Appellants’ counsel and affirm the decision of the lower Court.

Furthermore, the Respondents’ Counsel argued that the Appellants failed to prove that they were evicted from their motor park before expiration of the license fee paid by them in December 2015. In holding the said position, the lower Court made reference to paragraph 17 of the amended statement of claim of the Appellants and paragraph 19 of Godwin George (JP) who was the only witness of the Appellants at the lower Court (page 122 and 190 of the record of Appeal) that these amended statement of claim and amended deposition of the Appellants’ lone witness were filed on 8th of March, 2017, one year and about 3 months after the

license fees paid by the Appellants to the 1st Respondents had expired in December, 2015.

Respondents submitted that the burden of proof rests on the party who desires the Court to give him judgment, referred to FAPOHUNDA vs. R.C.C.N Ltd. (2019) 3 NWLR (Pt. 1658 page 103 and Section 131(1) and (2) of the Evidence Act 2011.

The Respondents stated that the evidence of the witness created lacuna on the date the Appellants motor park was closed and the lower Court has no business in filling the gap. See IKPA vs. STATE (2018) 4 NWLR (pt. 1609) page 175.

The Appellants having sought for declaratory relief has the burden to prove or establish such declaratory relief to the satisfaction of the Court. See OMISORE vs. AREGBESOLA (2015) 15 NWLR (pt. 1482) 297.

That the Appellants claimed damages of 100,000,000.00 (one hundred million naira) against the Respondent for a breach of contract but failed to establish a valid contract between the Parties, see AGHARUKA vs. FIRST BANK OF NIGERIA LTD. (2010) 3 NWLR (Pt. 1182) 465.

In reply, the Appellants reply Brief filed on the 13th day of September, 2019 the Appellants submitted that the payment of the

required fees was not and in fact could not have been said to be incidental when the Respondents never stated in its approved letter and in all its receipts that the fee paid by the Appellants was merely incidental and it would not create any contractual obligation. A party is said to be in breach of contract when he acts contrary to the terms of the contract whether the terms are implied or not, citing CAMEROON AIRLINES vs. OTUTUIZU (2011) LPELR-SC 2171.

Appellants submitted that that the approval in EXHIBIT B with all intent and purposes never suggested the issue of licensee and does not grant the Appellants or lower Court the right to import such word into EXHIBIT B. See OMON vs. EKPA (2019) 15 NWLR (Pt. 1696) 504 @ 539. They argued that EXHIBIT C as tendered by the Appellants and admitted is evidence of a contractual obligation between the parties and it arose at the point where the Respondents acknowledged payment of different kinds from the Appellants through series of receipts issued by the Respondents as contained in the said EXHIBIT C.

On failure of the Appellants to prove that the Respondents did not have the power to withdraw the approval

granted the Appellants, as stated in paragraph 3.13 of the Respondents brief, EXHIBIT A-E are facts that speaks for themselves and need no further proof, that all the lower Court needed to do is to decide issues based on the pleadings before it, and all the parties are required to plead facts which will enable the Court to conclude. See GBADAMOSI vs. AKINLOYE (2014) ALL FWLR (Pt. 717) 684.

The Appellants went further to submit that the said Motor Park was locked down when the rent was subsisting therefore the argument at pages 34 and 39 of the Respondents Brief is quite misleading.

RESOLUTION
The sole issue seeks the reversal of the findings made by the trial Court on whether there was a contract that was breached and if so, the legal consequences that should follow. A contract was defined in the case of BEST (NIG.) LTD. VS. BLACKWOOD HODGE NIG. LTD. & ANOR. (2011) LPELR-776 where the apex Court held:
“A contract may be defined as a legally binding agreement between two or more persons by which rights are acquired by one party in return for acts or forbearances on the part of the other. In effect a contract is a bilateral affair which

needs the ad idem of the parties, therefore where the parties are not ad idem, the Court will find as a matter of law that an agreement or contract was not duly made between the parties. Odutola vs. Papersack (Nigeria) Limited (2006) 18 NWLR Pt. 1012 pg. 470. Olowofoyeku vs. A G Oyo State (1990) 2 NWLR Pt. 132 pg. 369, Oreint Bank (Nigeria) Plc. vs. Bilante International Limited (1997) 8 NWLR Pt. 515 pg. 37, Societe General Bank (Nigeria) vs. Safa Steel and Chemical Manufacturing Limited (1998) 5 NWLR Pt. 548 pg. 168.”
The most important element in a contract is consideration as held in the case of CHABASAYA VS. ANWASI (2010) LPLER-839(SC) as follows:
“The Court below stated the elements of a valid contract which are, offer, acceptance, consideration and an intention to enter into legal relations. That for a simple contract to be binding there must be consideration which must move from the promise.”
For a more detailed explanation, see A.G. GOMBE STATE VS. GADZAMA (2014) LPELR-23423(CA) wherein the Court said:
“At this juncture, I think, it is pertinent to know what is an enforceable contractual relationship in law. In

FK Construction Ltd. v. NDIC (2013) 13 NWLR Pt.1371 p.390 @ 406 – 407, it has been enunciated that a contract is an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law. It is a promise or a set of promises the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty. Parties must reach a consensus “ad idem” for a contract to be regarded as binding and enforceable. The two or more minds of the parties must meet at the same point, event or incident. Where they say different things at different times, they are not ad idem and no valid contract is formed. The meeting of the minds of the contracting parties is the most crucial and overriding factor or determinant in the law of contract. Furthermore, in Best (Nig.) Ltd. vs. BH (Nig.) Ltd. (2011) 5 NWLR Pt.1329 P.95 @ 127, the Supreme Court defined a contractual relationship to mean a legally binding agreement between two or more persons by which rights are acquired by one party in return for acts or forbearances on the part of the other. It is a bilateral affair which requires the ‘ad idem’ of the parties.

See Odutola vs. Papersack (Nig.) Ltd. (2006) 18 NWLR Pt.1012 P.470; Orient Bank (Nig.) Plc. vs. Bilante Int’l Ltd. (1997) 8 NWLR Pt.515 P.37 and S.G.B. (Nig.) Ltd. vs. Safa Steel and Chemical Manufacturing Ltd. (1998) 5 NWLR Pt.548 P.168.”
It is elementary to state that there are three basic essentials to the formulation of a contract. These are: (a) agreement; (b) Contractual intention; and (c) Consideration. The normal test for determining whether the parties have reached an agreement is to determine whether an offer has been made by one party and accepted by the other. In considering whether an enforceable contract has been formed or entered into, there are certain factors to be considered. In Amana Suits Hotels Ltd. vs. PDP (2007) 6 NWLR Pt.1031 P.453 @ 476 it was held by the Court that for a contract to be validly formed or entered into there must be: (i) offer (ii) Acceptance (iii) Consideration (iv) Intention to create legal relationship, and (v) Capacity to enter into contract. All the five (5) elements or ingredients enumerated supra must be satisfied before there can be a valid contract in law. A contract cannot be legally entered into if any

of these elements or ingredients is not satisfied or fulfilled. See Amana Suits Hotels Ltd. vs. PDP (2007) 6 NWLR Pt.1031 P. 453 @ 476; Okubule vs. Oyegbola (1990) 4 NWLR Pt.147 P.723 and PTF vs. Uwamu (2001) 5 NWLR Pt.705 P.112.

an acceptance.” InJohnson Wax (Nig.) Ltd. vs. Sanni (2010) 3 NWLR Pt.1181 P.235 @ 245, this Court, per DONGBAN-MENSEM, J.C.A.; had this to say. ”It is trite law that the formation of contract is not governed by rigid but flexible rules, namely, that there must be a definite offer by the offeree and been communicated to the other party called the offeree who accepts the offer unless the offeror, the first party, dispenses with such communication.” In other words, a contract is formed once there is an offer by the offeror to the offeree which is accepted by the offeree backed by consideration. At that point in time, the parties to the contract are said to be ad idem or in agreement and that agreement or contract is binding on both parties and is enforceable by action. It has been held in the case of Yaro vs. Arewa Const. Ltd. (2007) 17 NWLR Pt.1063 P.333 @ 377 that an agreement or a contract is formed where there exist: (a) an offer; (b) an acceptance; (c) consideration (d) capacity to enter into contract and (e) intention to create legal relationship.

The question to answer is whether there was an existing contract between the parties herein. The

Appellants relied heavily on Exhibit A and B which are the initial letters of application (offer) and the response from the Respondents giving approval to the Appellants to operation the motor park. There was the offer to pay requisite fees to the 1st Respondent as consideration which was followed with subsequent payments, evidence is Exhibit C, there was offer and acceptance and consideration flowed from the Appellants to the Respondents. All this were not denied by the Respondents. The conditions stated therein the approval were as follows:
i. The area must be sanitarily kept always
ii. Your operation should not constitute nuisance in the area
iii. You are to pay your requisite fees as at when dues (sic) to council.

The relevant fees were paid up to end of year 2015 when in August of 2015 the Respondents wrote Exhibit D withdrawing approval to the Appellants to operate the park. Without mincing words, there was a binding contract for which consideration had passed and if the Respondent needed to make any adjustments in the relationship it must come into effect after the expiration of the payment already made in advance for the year 2015.

With the payment still subsisting, any attempt or act in creating a cessation in the relation will undoubtedly amount to a breach of contract. The Respondents argument is that maintaining parks is a constitutional issue and no Court can stop the exercise of a constitutional duty. I believe learned counsel for the Respondent’s and the Court below missed the point. There is no challenge to the Respondents power to maintain parks but it can legitimately do so by itself or through an agent duly appointed. It cannot be heard that the Respondent in trying to fulfill a constitutional duty and in turn defraud the Appellants and still want to benefit from its own wrong. The question is why did the Respondents not talk about the payments already made to cover the year 2015? Why did they keep mute? If they knew that it could not delegate or appoint agents to carry out the duty, why did they not refund all monies paid at the point they discovered the unconstitutionality in letting the Appellants run the parks. Furthermore, there was nowhere in the contract documents where the question of the Appellants being licensee was mentioned. No party or the Court can read

into a contract document what is not in it, see THE NORTHERN ASSURANCE CO. LTD. VS. WURAOLA (1969) LPELR-25562(SC) which held thus:
“It is trite law that in the construction of documents the primary rule is that effect should be given to the literal contents in their ordinary way as they appear on the documents and that anything which does not appear ex facie on such documents should NOT be imported into them.”

The attempt by the trial judge and the Respondents to twist the facts and import the word licensee into the contract between the parties is wrong and must be condemned. In any case, it is too late in the day for the Respondents to want to use the excuse of its constitutional duty as reason to escape responsibility. In Exhibit D which is the letter which terminated the contract between the parties, the Respondents’ reason was the resolve to operate only one park and that the Appellants that the earlier authority given to them was withdrawn and gave only 7 days to withdraw its services. Respondents felt justified to do so in breach of the payments made for the year 2015 and it did this in August, 2015. This is clear breach of the contract

for which the Respondents cannot escape liability.

excuse of a constitutional duty as claimed by their counsel before the Court. Indeed, any party to a contract can bring an end a contract but that must be done lawfully and not unilaterally as was done in this case. The right of a party to repudiate a contract is not at the whims and caprices of such a party. If no condition is stated in the contract, a reasonable period of Notice is given to give the other party the opportunity to wind up its services to avoid losses. The Respondents gave 7 days when the payment made was still subsisting and unexhausted. They did not offer to refund nor compensate in damages. They are liable for breach of contracts for which damages is the only remedy. In the case of CAMEROON AIRLINE VS. OTUTUIZU (2011) LPELR-827(SC) the apex Court restated the principle of awarding damages in breach of contract thus:
“A breach of contract means that the party in breach has acted contrary to the terms of the contract in the instant case by performing a contract negligently and not in accordance with its terms. Pan Bisbilder (Nigeria) Ltd. vs. First Bank of Nigeria Ltd. (2000) 1 SC 71. In awarding damages in an action founded on breach of

contract, the rule to be applied is restitution in integrum that is, in so far as the damages are not too remote, the plaintiff shall be restored as far as money can do it, to the position in which he would have been if the breach had not occurred. Okongwu vs. N.N.P.C.(1989) 4 NWLR Pt. 115 Pg. 296. Oshin & Oshin Ltd. vs. Livestock Feed Ltd. (1997) 2 NWLR pt.486 pg.162. Udeagu vs. Benue Cement Co. Plc. (2006) 2 NWLR pt.965 pg.600.” Per ADEKEYE, J.S.C
Where the claimant has difficulty in proving special damages in a breach of contract, he can claim in general damages as held in several cases, seeSPDC (NIG) LTD. VS. OKONEDO (2008) 9 NWLR (Pt. 1091) 85 @ 123 – 124 which held:
“…it is a settled law, that where a claimant has some difficulty in proving special damages, he may claim general damages for breach of contract, et al, as in the instant case. See INTERNATIONAL MESSENGERS NIG. LTD. VS. TAWOSE (2004) 11 NWLR (Pt. 884) 272 @ 288 paragraphs C – E; KUSFA VS. UBC LTD. (1994) 4 NWLR (Pt. 336) 1; OYO STATE VS. FAIR LAKES HOTEL LTD. (NO.2) (1989) 5 NWLR (Pt. 121) 255.”
The finding of the trial judge and the Respondents that the

Appellants did not prove that they were evicted is preposterous. Upon the issuance of the letter terminating the earlier contract there was a breach for which the Respondents remain liable, physical taking over or closing down of the premises notwithstanding.
Upon the finding of a breach, the sole issue of the Appellants is meritorious. The Court shall proceed to assess damages; the principle of assessing damages has been restated in AGU VS. GENERAL OIL LTD. (2015) LPELR-24613(SC) as follows:
“It is now well settled that in a claim for damages for breach of contract, as in the instant case, the Court is concerned only with damages which are natural and probable consequences of the breach or damages within the contemplation of the parties at the time of the contract. See Mobil Oil Nig. Ltd v. Akinfosile (1969) 1 NMLR 227, Arisons Trading & Engineering Company Ltd. vs. The Military Governor of Ogun State (2009) 15 NWLR (Pt. 1163) 26.” Per OKORO, J.S.C.
Assessing the nature of the contract and the manner it was terminated, it was in evidence that the Appellants had invested massively in erecting structures in the park (Exhibit E and G). They did

not breach any term of the offer and had been paying revenue to the Respondents which left the Appellants financially drained. Having the settled principle of restituting the loss incurred by the Appellant, the evidence before the Court which was not disputed shows financial loss and the parks were operated as a business concern. The Appellants did not claim special damages but general damages. It is with these in mind that I assess damages in the sum of N1,000,000.00(one million Naira) only as damages for breach of contract.

The Appeal is meritorious and succeeds. The judgment of the trial Court delivered on the 12th October, 2017 is hereby set aside. Cost is assessed at N100,000.00 (one Hundred Thousand) in favour of the Appellants.

MOJEED ADEKUNLE OWOADE, J.C.A.: I agree.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I had the opportunity to preview the judgment of my learned brother Yargata B. Nimpar, J.C.A. I endorse in toto the reasoning and conclusion in it. I too, allow the meritorious appeal and aside consequential orders contained herein.

Appearances:

UTIBE NWOKO, ESQ., For Appellant(s)

For Respondent(s)