AKINLADE v. AYINDE
(2020)LCN/14098(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Wednesday, March 18, 2020
CA/L/1158/2017
Before Our Lordships:
Mohammed Lawal Garba Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Between
EDWARD AKINLADE APPELANT(S)
And
MICHAEL ADEMOLA AYINDE RESPONDENT(S)
RATIO
PRELIMINARY OBJECTIONS
The Appellant did not file a Reply Brief so he did not proffer any submissions in answer to the preliminary objection. The law seems to be settled that where an Appellant fails to file a reply brief when it is necessary to do so, he will be deemed to have conceded the points arising from the respondent’s brief. See OKOYE vs. NIGERIA CONSTRUCTION AND FURNITURE COMPANY (1991) 6 NWLR (PT 199) 501, OKONGWU vs. NNPC (1989) 4 NWLR (PT 115) 296 at 309 and NWANKWO vs. YAR’ADUA (2010) 12 NWLR (PT 1209) 518.
The situation is even worse where a reply brief is not filed to a preliminary objection like in this case: DAIRO vs. UNION BANK (2008) 2 WRN 1 at 8-9, POPOOLA vs. ADEYEMO (1992) 8 NWLR (PT 257) 1 and AYALOGU vs. AGU (1998) 1 NWLR (PT 532) 129. On the state of the law therefore, the Appellant having failed to file a Reply Brief is deemed to have conceded the points raised in the preliminary objection as incorporated and argued in the Respondent’s Brief vide ALAYA vs. ISAAC (2012) LPELR (9306) 1 at 67-68 and CANAAN ESTATES & HOMES LTD vs. AJOSE (2018) LPELR (46042) 1 at 8-10. Howbeit, this fact alone will not willy-nilly mean that the preliminary objection is bound to succeed. It still behoves the Court to consider the merits of the preliminary objection; this I shall proceed to do presently. See SHELL PETROLEUM DEVELOPMENT CO. vs. PESSU (2014) LPELR (23325) 1 at 32-33. PER OGAKWU, J.C.A.
THE DOCTRINE OF PRIVITY OF CONTRACT
As a general principle of law based on the doctrine of privity of contract, a contract, cannot as a general rule confer rights or impose obligations under it on any person, except the parties to it. Put differently, only parties to a contract can sue or be sued on the contract: MAKWE vs. NWUKOR (2001) 14 NWLR (PT 733) 356, IDUFUEKO vs. PFIZER PRODUCTS LTD (2014) 12 NWLR (PT 1420) 96 at 101, REBOLD INDUSTRIES LTD vs. MAGREOLA (2015) 8 NWLR (PT 1461) 210 and A-G FEDERATION vs. A. I. C. LTD (2000) 4 WRN 96 at 103.
The contract, cause of action is Exhibit 1CW7. It shows the parties herein as the principal contracting parties. The corporate body whose funds were used to effect payment is not a party to the contract so it can neither sue nor be sued on it. It makes no difference that the Respondent used the funds of a corporate body to make payment as the action litigated and prosecuted was predicated on the contract in which he was the party. The proper Claimant was the Respondent on record and the corporate body not being a party to the contract would have no locus standi sue on it vide COAST OIL LTD vs. TUBOSCOPE VETCO INTERNATIONAL (2019) LPELR (46450) 1 at 17-18, OKEKE vs. UGOKWE (2018) LPELR (44011) 1 at 20-29 and REBOLD INDUSTRIES LTD vs. MAGREOLA (supra). The lower Court was therefore on terra frima when it reasoned and held as follows at page 267-268 of the Records:
“The contracting parties are the Claimant and the Defendant in their personal capacity and not in their capacity as either MD or Director of their respective company. Therefore, I found that the 2 (two) companies i.e. Creseada Int’l Ltd and Suru Worldwide Ventures with a corporate entity are not necessary parties to this Suit likewise the Vendor of the title to the land is not a necessary party to this Suit. Assuming without conceding that they are necessary parties by Order 13 Rule 16 of the High Court of Lagos State (Civil Procedure) Rules (2012), IT PROVIDES THAT ‘No proceedings shall be defeated by reason of misjoinder or non-joinder of parties and a Judge may deal with the matter in controversy so far as regards the rights and interest of the party actually before him.’
The non-joinder of the Creseada International Ltd, and Suru Worldwide Ventures Ltd. as a necessary party to this Suit will not in any way affect the Court from adjudicating on this Suit likewise their presence will not affect the decision of the Court. PER OGAKWU, J.C.A.
DUTY OF TRIAL COURT TO EVALUATE EVIDENCE
Now, it is the trial Court that has the duty of evaluation of evidence and ascription of probative value thereto. The trial Court sees the faces of the witnesses, hears their testimony, feels the tension and observes the demeanour of the witnesses. It is therefore within the province of the trial Court which saw, heard and assessed the witnesses to evaluate and ascribe probative value to the evidence adduced. There is a duty on the trial Court to receive all available relevant evidence on an issue. This is perception of evidence. After that there is another duty to weigh that evidence in the context of the surrounding circumstances of the case. This is evaluation of evidence. A finding of fact will entail both perception and evaluation. See OLUFOSOYE vs. OLORUNFEMI (1989) 1 SC (PT I) 29 or (1989) LPELR (2615) 1 at 9, GUARDIAN NEWSPAPER LTD vs. AJEH (2011) 10 NWLR (PT 1255) 574 at 592 and WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 50-51.
There is little or no difficulty with perception of evidence, id est, receive all available relevant evidence. For evaluation of evidence, it is basically the assessment of the facts by the trial Court to ascertain which of the parties to a case before it has more preponderant evidence to sustain his claim. See ONWUKA vs. EDIALA (1989) 1 NWLR (PT 96) 182 at 208-209, OYADIJI vs. OLANIYI (2005) 5 NWLR (PT 919) 561 and AMEYO vs. OYEWOLE (2008) LPELR (3768) 1 at 9. The evaluation involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. A Court of trial has the duty to consider the evidence adduced in respect of any facts on which issues were joined, decide which evidence to prefer on the basis of how the evidence preponderates and then make logical and consequential findings of facts. SeeADEYEYE vs. AJIBOYE (1987) 1 NWLR (PT 61) 432 at 451 and STEPHEN vs. THE STATE (1986) 5 NWLR (PT 46) 978 at 1005.
The settled legal position is that where a trial Court unquestionably evaluates and justifiably appraises the facts, it is not the business of an appellate Court to substitute its own views for the views of the trial Court, however, an appellate Court can intervene where there is insufficient evidence to sustain the judgment or where the trial Court fails to make proper use of the opportunity of seeing, hearing, and observing the witnesses or where the findings of facts by the trial Court cannot be regarded as resulting from the evidence or where the trial Court has drawn wrong conclusions from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or not supported by the evidence before the Court. See FHA vs. OLAYEMI (supra) at 69-71, EDJEKPO vs. OSIA (2007) 8 NWLR (PT 1037) 635 or (2007) LPELR (1014) 1 at 46-47, ARE vs. IPAYE (1990) LPELR (541) 1 at 22, WOLUCHEM vs. GUDI (1981) 5 SC 291 at 320 and FASIKUN II vs. OLURONKE II (1999) 2 NWLR (PT589) 1 or (1999) LPELR (1248) 1 at 47-48. PER OGAKWU, J.C.A
CIRCUMSTANCES WHERE TIME WILL BE OF THE ESSENCE IN A CONTRACT
Without a doubt, the law is settled that if time is made the essence of a contract and the stipulated time is not met, the other party will not be held to the contract: M. O. KANU SONS & CO LTD vs. FBN PLC (2006) LPELR (1797) 1 at 18. Time is said to be of the essence of a contract where:
1) The parties have expressly stipulated in their contract that the time fixed for performance must be exactly complied with.
2) The circumstances of the contract or nature of the subject-matter indicate that the fixed date must be exactly complied with.
3) Where time was not originally of the essence of the contract, but one party has been guilty of undue delay, the other party may give notice requiring the contract to be performed within a reasonable time.
In pungent terms, time is of essence where the parties have expressly made it so in clear, firm and unequivocal terms. See NBCI vs. INTEGRATED GAS (NIG) LTD (2005) LPELR (2016) 1 at 30, NWAOLISAH vs. NWABUFOH (2011) LPELR (2115) 1 at 36-37, FAWEHINMI vs. GLOBE MOTORS HOLDINGS (NIG) LTD (2017) LPELR (42887) 1 at 24, ADEMETAN vs. INC. TRUSTEES OF THE RCCG (2015) LPELR (24576) 1 at 56 and FEDERAL MINISTRY OF HEALTH vs. DASCON (NIG) LTD (2017) LPELR (43621) 1 at 28-29. PER OGAKWU, J.C.A.
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The provenance of this appeal is in the contract for the sale of a property situate at No 1, Oduduwa Street, GRA, Ikeja, Lagos State. The parties agreed on a purchase price of N180 million and the Respondent as purchaser paid the sum of N90 million to the Appellant, leaving a balance of N90 million, which it was agreed was to be paid on or before 31st January 2011, failing which the said balance would attract interest at the bank rate. The Respondent did not pay the balance on the due date and the Appellant sold the property to someone else. When the Respondent eventually tendered the balance and the accrued interest thereon, the Appellant refunded the entire amount paid by the Respondent since the property had already been sold.
Piqued by this, the Respondent, contending that the Appellant had breached the contract for the sale of the property, instituted proceedings at the High Court of Lagos State in SUIT NO. ID/557/2011: MICHAEL ADEMOLA AYINDE vs. EDWARD AKINLADE. The Respondent claimed the following reliefs:
“Whereupon the Claimant claims
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against the Defendant as follows:-
1. The sum of N27,501,097.00 being special damages for breach of contract entered into between the Claimant and the Defendant dated 6th January, 2011 for sale of the Defendant’s interest and right in and over the property situate at No. 1, Oduduwa Street GRA, Ikeja, Lagos State (‘the property’) for the sum of One Hundred and Eighty Million Naira (N180, 000,000.00)
Particulars of Special Damages
a. The sum of N18,000,000.00 being Commission to Yinka Sonaike & Co for procuring the property for the Claimant to purchase.
b. The sum of N9,501,097.00 being Legal fee to Oladipo Opanubi & Co for legal services on the purchase of the property.
2. Interest on the N90,000,000.00 paid by the Claimant to the Defendant as deposit on the purchase of the property at the rate of 25% per annum from 12th January, 2011 when the deposit was made through Suru Worldwide Ventures Nigeria Limited till 9th March, 2011 when the deposit was refunded to the Claimant and thereafter at the rate of 15.% per annum till judgment date and up to liquidation of the judgment debt.
3. Interest on the sum of N
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90,000,000.00 being final payment made on 10th February 2011, through Suru Worldwide Ventures Nigeria Limited, by the Claimant to the Defendant for purchase of the property at the rate of 25% from 10th February, 2011 till 9th March, 2011 when the sum was refunded by the Defendant to the Claimant and thereafter at the rate of 15% per annum till judgment date and up to liquidation judgment debt.
4. The sum of N40,000,000.00 being general damages for the breach of contract.
5. The sum of N5,000,000.00 being cost of this action.”
(See pages 5-6 of the Records)
The parties filed and exchanged pleadings and the matter was subjected to plenary trial where testimonial and documentary evidence was adduced by the parties. In its judgment, the lower Court entered judgment in favour of the Respondent in the following terms:
“THE CLAIMANT IS THEREFORE ENTITLED TO RECOVER FROM THE DEFENDANT:
(1) The sum of N18,000,000:00 (Eighteen Million Naira) being the money paid as commission to Yinka Sonaike & Co. in procuring the property.
(2) The sum of N9,501,097:00 (Nine Million, Five Hundred and One Thousand, Ninety-seven Naira)
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being legal fees paid to Oladipo Opanubi & Co. for legal services rendered to the Claimant on the purchase of the property.
(3) Interest on N90,000,000:00 (Ninety Million Naira) deposit paid by the Claimant to the Defendant as deposit on the purchase of the property at 18% (eighteen percent) per annum from 12th January 2011 when the deposit was made through Suru Worldwide Ventures Ltd till 9th March 2011 when the deposit was refunded with 10% (ten percent) post judgment interest on the said sum till the sum is liquidated.
(4) Interest on the sum of N90, 000,000.00 being the final payment made on 10th February 2011 through Suru Worldwide Ventures Limited the Claimant to the Defendant for purchase of the property at the rate of 18% (eighteen percent) per annum from 10th February 2011 till 9th March 2011 when the sum was refunded with 10% (ten percent) per annum post-judgment interest on the said sum till the sum is liquidated.
(5) General damages in the sum of N2,000,000:00 (Two Million Naira) is also granted to the Claimant against the Defendants as damages for breach of contract.
(6) Cost of N100,000:00 (One Hundred Naira) [sic] is
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hereby awarded to the Claimant against the Defendants jointly and severally as cost of the action.
That is the judgment of the Court.”
(See pages 280-281 of the Records)
Peeved by the decision of the lower Court, the Appellant appealed against the same. The judgment of the lower Court, Coram Judice: Sonaike J., which was delivered on 23rd May 2017 is at pages 246-282 of the Records, while the Notice of Appeal which was filed on 6th June 2017 is at pages 283-287 of the Records. The Records of Appeal having been compiled, the parties filed and exchanged briefs of argument. At the hearing of the appeal, learned counsel for the parties urged the Court to uphold their respective submissions in the determination of the appeal.
The Appellant’s Brief was filed on 8th January 2019 wherein five issues were distilled for determination from the six grounds of appeal, namely:
“(i) Whether the learned trial judge was not in error when he held that he had the jurisdiction to determine the suit. (Distilled from ground 2).
(ii) Whether the learned trial judge did not misdirect himself in law when having made a sound distinction
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between the words ‘deposit’ and ‘part payment’ and the legal effect thereof, came to a different and contradictory conclusion. (Distilled from ground 1).
(iii) Whether the learned trial judge was not in error when he held that it was the Appellant who breached the contract terms as captured in Exhibit 1CW7, despite having found that time was of the essence. (Distilled from Grounds 3 and 4).
(iv) Whether the learned trial judge was not in error when he failed to follow the trite and well laid down principles of law concerning the award of damages (Distilled from Ground 5).
(v) Whether the decision of the trial Court could be said to be reasonable having regard to the weight of evidence adduced at the trial (Distilled from Ground 6).”
In the Respondent’s Brief which was filed on 12th February 2019, two issues were formulated for determination thus:
“i. Whether the appeal as constituted is competent to vest the court with jurisdiction to entertain it.
ii. Whether the appeal discloses any reasonable grounds of appeal within Order 7 Rule 3, Court of Rules [sic] of 2016.”
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The Respondent equally raised a preliminary objection to the competence of the Appellant’s Notice of Appeal which was argued on pages 2-4 of the Respondent’s Brief. The Notice of preliminary objection and the grounds therefor are as follows:
“NOTICE OF PRELIMINARY OBJECTION PURSUANT TO ORDER 10 RULE 1 OF THE COURT OF APPEAL RULES 2016.
TAKE NOTICE that the Respondent doth hereby object to the competence of the Appellant’s Notice of Appeal contained in the Appellant’s NOTICE OF APPEAL dated 6th June 2017 and filed the same day on the grounds that:
i. Grounds 1, 2, 3, 4 & 5 disclose no reasonable grounds of appeal within Order 7 Rule 2(2) of the Rules of Court, particularly also for lack of proper particulars.
ii. Grounds 1, 2, 3, 4 & 5 are also vague and bear no relationship to the judgment appealed against.
iii. Issues formulated on the grounds are incompetent in that they are discordant to the grounds of appeal.”
The Appellant did not file a Reply Brief so he did not proffer any submissions in answer to the preliminary objection. The law seems to be settled that where an Appellant fails to file a reply
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brief when it is necessary to do so, he will be deemed to have conceded the points arising from the respondent’s brief. See OKOYE vs. NIGERIA CONSTRUCTION AND FURNITURE COMPANY (1991) 6 NWLR (PT 199) 501, OKONGWU vs. NNPC (1989) 4 NWLR (PT 115) 296 at 309 and NWANKWO vs. YAR’ADUA (2010) 12 NWLR (PT 1209) 518.
The situation is even worse where a reply brief is not filed to a preliminary objection like in this case: DAIRO vs. UNION BANK (2008) 2 WRN 1 at 8-9, POPOOLA vs. ADEYEMO (1992) 8 NWLR (PT 257) 1 and AYALOGU vs. AGU (1998) 1 NWLR (PT 532) 129. On the state of the law therefore, the Appellant having failed to file a Reply Brief is deemed to have conceded the points raised in the preliminary objection as incorporated and argued in the Respondent’s Brief vide ALAYA vs. ISAAC (2012) LPELR (9306) 1 at 67-68 and CANAAN ESTATES & HOMES LTD vs. AJOSE (2018) LPELR (46042) 1 at 8-10. Howbeit, this fact alone will not willy-nilly mean that the preliminary objection is bound to succeed. It still behoves the Court to consider the merits of the preliminary objection; this I shall proceed to do presently. See
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SHELL PETROLEUM DEVELOPMENT CO. vs. PESSU (2014) LPELR (23325) 1 at 32-33.
THE PRELIMINARY OBJECTION
It is the Respondent’s contention that all the grounds of appeal are incompetent for non-disclosure of reasonable grounds of appeal and for being vague, lacking in proper particulars and unclear as to the part of the judgment purportedly appealed against. The Respondent dwelt on the specifics of the incompetence of grounds stating that a ground of appeal must relate to and derive from the judgment appealed against and that grounds 3 and 4 were not grounds of law but of facts. Order 7 Rule 2 (2) of the Court of Appeal Rules, 2016 and the cases of MORTGAGE PHB LTD vs. S. T. I. CO. LTD (2016) 6 NWLR (PT 1509) 465 at 475-476 and ADAMU vs. THE STATE (2017) 10 NWLR (PT 1574) 463 at 486 were referred to. It was conclusively submitted that ground 6 is the omnibus ground of appeal which cannot be used to raise any issue of law or error in law vide AKINLAGUN vs. OSHOBOJA (2006) 12 NWLR (PT 993) [no page stated]. The Court was urged to strike out the appeal for want of jurisdiction since the appeal was not properly constituted by the incompetent notice of appeal.
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RESOLUTION OF THE PRELIMINARY OBJECTION
I have set out the grounds of the preliminary objection. It is clear that the preliminary objection challenges only Grounds 1, 2, 3, 4 and 5 of the Notice of Appeal. The Notice of Appeal has six grounds of appeal. Even though the Respondent surreptitiously tried to smuggle in the contention that ground 6 is incompetent since it is an omnibus ground of appeal which cannot be used to challenge issues of law or findings of facts; the said ground 6 is not one of the grounds of appeal challenged in the Notice of Preliminary Objection which is incorporated in the Respondent’s brief. The submissions on the incompetence of the said ground 6 is therefore otiose.
By Order 10 Rule 1 of the Court of Appeal Rules, 2016, under which the preliminary objection has been brought, a preliminary objection is to the hearing of the appeal and is directed at truncating the hearing of the appeal in limine. As already demonstrated, the Respondent’s objection is not directed at the hearing of the appeal. It challenges five of the six grounds of appeal such that the success of the objection will not terminate the appeal since ground 6 which
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is not included in the grounds of the preliminary objection is sufficient to sustain the appeal. See FIRST ALSTATE SECURITIES LTD vs. ADESOYE HOLDINGS (2013) 16 NWLR (PT 1381) 470 at 504, ADEJUMO vs. OLAWAIYE (2014) 12 NWLR (PT 1421) 252 at 279 and NNPC vs. FAMFA OIL (2012) 17 NWLR (PT 1328) 148. A challenge to the competence of only some of grounds of appeal can only be validly raised by a motion on notice and not by a preliminary objection. Notwithstanding the inappropriateness of the procedure, I will still consider the merits of the issues raised in the preliminary objection as though it had been brought by the proper process, id est, a motion on notice. See ODUNUKWE vs. OFOMATA (2010) 15 NWLR (PT 1225) 404 at 423, NDIC vs. ORANU (2011) 18 NWLR (PT 744) 183, ALARIBE vs. OKWUONU (2015) LPELR (24297) 1, UBA PLC vs. PEL (2017) LPELR (43202) 1 at 10 and FHA vs. OLAYEMI (2017) LPELR (43376) 1 at 18-19.
Now, the primary essence of a ground of appeal is to give adequate notice to a Respondent of the specific nature of the complaint against the decision of the lower Court which the Appellant would place and canvass before the appellate Court for its
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determination at the hearing of the appeal, so that the Respondent would know and fully prepare to respond to or answer the same at the hearing of the appeal: NTA vs. A. I. C. LTD (2018) LPELR (45320) 1 at 5-6 (per Garba, JCA).
The Respondent has, inter alia, argued that the grounds of appeal are vague, lack in proper particulars and do not disclose reasonable grounds of appeal. It has further been argued that the grounds of appeal do not derive from the judgment appealed against and that grounds 3 and 4 are grounds of facts while ground 6 is the omnibus grounds of appeal. Taking these contentions in the reverse order, ground 6 is indeed the omnibus ground of appeal. The omnibus ground of appeal allows a complaint on evaluation of evidence and encompasses a complaint of improper evaluation of evidence. It implies that the judgment of the lower Court cannot be supported by the weight of evidence adduced by the successful party which the trial judge either wrongly accepted or that the inference or conclusion reached by the trial judge based on the accepted evidence cannot be justified. It also implies that there is no evidence which if accepted would
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support the findings of the trial judge. See AJIBONA vs. KOLAWOLE (1996) LPELR (299) 1 at 17, AKINLAGUN vs. OSHOBOJA (2006) LPELR (348) 1 at 19-20, ADELUSOLA vs. AKINDE (2004) LPELR (120) 1 at 12 and NPF vs. OMOTOSHO (2018) LPELR (45778) 1 at 19-20. The omnibus ground of appeal has been held to be a valid ground of appeal and it is expressly recognised as such by Order 7 Rule 3 of the Court of Appeal Rules, 2016: AUDU vs. NDUBUISI (1996) LPELR (13718) 1 at 15 and OLOWU vs. AMAYO (2011) LPELR (4755) 1 at 26-27. The said ground 6, which is the omnibus ground of appeal, is therefore competent.
The decision appealed against is a final judgment of the lower Court sitting as a Court of first instance. Section 241 (1) (a) of the 1999 Constitution guarantees the right of appeal as of right from the final decision of the lower Court sitting as a Court of first instance. In such instance, the appeal is brought as of right and there is no dichotomy as to whether the grounds of appeal are grounds of law, grounds of facts or indeed grounds of mixed law and facts. In the diacritical circumstances of this matter, it is of no moment if grounds 3 and 4 are grounds of facts
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as the Appellant can appeal on the said grounds as of right without having to seek the leave of the Court in that regard. See NEW IMPROVED MANIBANNC VENTURES LTD vs. FBN PLC (2009) LPELR (8757) 1 at 19-20 or (2009) 16 NWLR (PT 1167) 411 at 434, MADUABUCHUKWU vs. MADUABUCHUKWU (2006) 10 NWLR (PT 989) 475 at 492 and AYOADE vs. SPRING BANK PLC (2014) 4 NWLR (PT 1396) 93 at 116.
With regard to the contention that ground 2 does not derive from the judgment, I am unable to fathom the Respondent’s contention in this regard. The said ground 2 deals with the issue of the jurisdiction of the lower Court to entertain the action. In paragraph 3.04 of the Respondent’s Brief, the Respondent submits that the lower Court aptly analysed the case and rightly held in favour of jurisdiction. If this is so, how can the Respondent then contend that the ground does not relate to or derive from the judgment appealed against? Be that as it may, ground 2 being on the question of jurisdiction can be raised for the first time on appeal, even before the apex Court: PETROJESSICA ENTERPRISES LTD vs. LEVENTIS TECHINCAL CO LTD (1992) LPELR (2915) 1 at 23-24 and APC vs. JOHN
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(2019) LPELR (47003) 1 at 28-29. Furthermore, it is rudimentary law that a ground of appeal need not arise from the ipsissima verba of the decision appealed against, but can arise from extrinsic factors such as the question of jurisdiction: AKPAN vs. BOB (2010) 17 NWLR (PT 1223) 421 at 464-465.
Even though the Respondent contended that the grounds of appeal are vague, lacking in proper particulars and does not disclose reasonable grounds of appeal, he has not complained that he has been misled by the way in which the grounds were framed or that he is in any way confused as to the complaint in the grounds. In NTA vs. A. I. C. LTD (supra) at 6-7, Garba, JCA stated:
“Over time, the attitude of the appellate Courts has been to ignore the technical form in which the grounds of appeal and particulars thereof are couched and concern themselves with the real and substance of the complaint contained in the grounds of which notice is given therein and generally, once the complaint is unambiguous and clear, the grounds would be valid and competent for the purpose of the appeal.”
The Respondent in his Respondent’s Brief replied to the
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Appellant’s submissions showing that the complaints in the grounds of appeal are clear and well understood. See ACHONU vs. OKUWOBI (2017) LPELR (42102) 1 at 17-18. In ADEROUNMU vs. OLOWU (2000) 4 NWLR (PT 652) 253 at 272, Ayoola, JSC stated:
“The rules of our appellate procedure relating to formulation of grounds of appeal are primarily designed to ensure fairness to the other side. The application of such rules should not be reduced to a matter of mere technicality whereby the Court will look at the form rather than the substance. The prime purpose of the rules of appellate procedure, both in this Court and in the Court of Appeal, that the Appellant shall file a notice of appeal which shall set forth concisely the grounds which he intends to rely upon on the appeal and that such grounds should not be vague or general in terms and must disclose a reasonable ground of appeal, is to give sufficient notice, an information to the other side of the nature of the complaint of the Appellant and consequently of the issues that are likely to arise on the appeal. Any ground of appeal that satisfies that purpose should not be struck out notwithstanding,
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that it did not conform to a particular form.”
I have insightfully considered the chafed grounds of appeal which are on pages 283-287 of the Records and it cannot be confuted that they contain sufficient notice of the Appellant’s complaints. Having done so, the purpose and essence of a ground of appeal is achieved and the ground will not be defenestrated on any technical grounds. See AIGBOBAHI vs. AIFUWA (2006) LPELR (267) 1 at 17 and F. H. A. vs. OLAYEMI (supra) at 21-23. In a summation, the grounds of appeal and, eo ipso, the notice of appeal are competent. The preliminary objection is devoid of merit and it is accordingly dismissed. We segue to the merits of the appeal.
THE APPEAL
I have already set out the issues distilled by the parties for determination in the appeal. The Respondent does not have a cross appeal, neither did he file a Respondent’s Notice. The two issues distilled by the Respondent are the same as the issues he raised in the preliminary objection. It is abecedarian that a respondent to an appeal who has not cross-appealed cannot raise issues outside those framed or formulated by the appellant from the
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grounds of appeal filed. See UGO vs. OBIEKWE (1989) 2 SC (PT II) 4, EKE vs. OGBONDA (2006) LPELR (1075) 1 at 12-13 and YUSUF vs. THE STATE (2019) LPELR (46949) 1 at 27-28.
The two issues raised by the Respondent do not derive from any of the six grounds of appeal filed by the Appellant. Any issue which is not distilled from or related to a ground of appeal is incompetent and ought to be struck out, together with the submissions thereon: OJE vs. BABALOLA (1991) LPELR (2368) 1 at 16, DREXEL ENERGY & NATURAL RESOURCES LTD vs. TRANS INTERNATIONAL BANK LTD (2008) LPELR (962) 1 at 31, AKPAN vs. UKPONG (2017) LPELR (42630) 1 at 8 and TOYINBO vs. IBIYINKA (2018) LPELR (44935) 1 at 25-27. Ineluctably, the Respondent’s issues and the submissions thereon are hereby struck out.
Happily, apart from the incompetent issues and the submission thereon which I have just struck out, the Respondent in paragraphs 6-6.25 on pages 9-13 of the Respondent’s brief proffered his submissions on the issues distilled by the Appellant under the heading “RESPONSE TO APPELLANT’S BRIEF OF ARGUMENT”. It is the submissions in the said paragraphs that I
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would now consider alongside the Appellant’s submissions in the determination of this appeal. The Appellant’s issue number (ii), (iii) and (v) are et hoc genus omne on evaluation of evidence. They can therefore be conveniently taken together. In resolving this appeal therefore, I would take issue number (i) on jurisdiction and then issue numbers (ii), (iii) and (v) together and thereafter issue number (iv).
ISSUE NUMBER ONE
Whether the learned trial judge was not in error when he held that he had the jurisdiction to determine the suit.
SUBMISSIONS OF LEARNED COUNSEL
The conspectus of the Appellant’s submission is that the payment for the property was made by a corporate body which was not a party to the action and that the lower Court lacked the jurisdiction to determine the suit in so far as the resources of the corporate body was deployed in furtherance of a personal contract. It was maintained that based on the concept of corporate personality, the corporate body was distinct from the Respondent and the Respondent therefore lacked the locus standi to maintain the action and the Court lacked jurisdiction to grant any
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relief in favour of the Respondent. The cases of BEST (NIG) LTD vs. BLACKWOOD HODGE (NIG) LTD (2011) 1-2 SC (PT I) 55 at 88-89, A-G FEDERATION vs. ANPP (2003) 12 SC (PT II) 146 at 161, B. B. APUGO & SONS vs. OHMB (2016) 6 S. C. [sic] (PT II) 37, ARIBISALA vs. OGUNYEMI (2005) 11 WRN 28 or (2005) 6 NWLR (PT 921) 221 at 227 and Sections 63 and 234 of the Companies and Allied Matters Act were referred to.
In replication, the Respondent submits that no law prevents a person from making payment for his personal transaction through his company and such a payment does not raise any presumption of law or fact that the money belongs to the company who is not a privy to the contract.
RESOLUTION OF ISSUE NUMBER ONE
The crux of the Appellant’s contention in this issue is that the payment that was made by the Respondent for the property was made with the funds of a corporate body and that it is the said corporate body that can sue in respect of the said payment. Now, the claim before the lower Court was for breach of contract. As a general principle of law based on the doctrine of privity of contract, a contract, cannot as a general rule confer rights or
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impose obligations under it on any person, except the parties to it. Put differently, only parties to a contract can sue or be sued on the contract: MAKWE vs. NWUKOR (2001) 14 NWLR (PT 733) 356, IDUFUEKO vs. PFIZER PRODUCTS LTD (2014) 12 NWLR (PT 1420) 96 at 101, REBOLD INDUSTRIES LTD vs. MAGREOLA (2015) 8 NWLR (PT 1461) 210 and A-G FEDERATION vs. A. I. C. LTD (2000) 4 WRN 96 at 103.
The contract, cause of action is Exhibit 1CW7. It shows the parties herein as the principal contracting parties. The corporate body whose funds were used to effect payment is not a party to the contract so it can neither sue nor be sued on it. It makes no difference that the Respondent used the funds of a corporate body to make payment as the action litigated and prosecuted was predicated on the contract in which he was the party. The proper Claimant was the Respondent on record and the corporate body not being a party to the contract would have no locus standi sue on it vide COAST OIL LTD vs. TUBOSCOPE VETCO INTERNATIONAL (2019) LPELR (46450) 1 at 17-18, OKEKE vs. UGOKWE (2018) LPELR (44011) 1 at 20-29 and REBOLD INDUSTRIES LTD vs. MAGREOLA (supra). The lower Court was
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therefore on terra frima when it reasoned and held as follows at page 267-268 of the Records:
“The contracting parties are the Claimant and the Defendant in their personal capacity and not in their capacity as either MD or Director of their respective company. Therefore, I found that the 2 (two) companies i.e. Creseada Int’l Ltd and Suru Worldwide Ventures with a corporate entity are not necessary parties to this Suit likewise the Vendor of the title to the land is not a necessary party to this Suit. Assuming without conceding that they are necessary parties by Order 13 Rule 16 of the High Court of Lagos State (Civil Procedure) Rules (2012), IT PROVIDES THAT ‘No proceedings shall be defeated by reason of misjoinder or non-joinder of parties and a Judge may deal with the matter in controversy so far as regards the rights and interest of the party actually before him.’
The non-joinder of the Creseada International Ltd, and Suru Worldwide Ventures Ltd. as a necessary party to this Suit will not in any way affect the Court from adjudicating on this Suit likewise their presence will not affect the decision of the Court.
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In Anyanwoko v. Okoye(2010) 5 NWLR (Part 1188) page 497, @ page 519-520, paras H-B (SC), Fabiyi, JSC said ‘Non-joinder per se does not affect the jurisdiction of the Court or the competence of a Suit. The non-joinder or misjoinder of a necessary party is only a procedural irregularity which can be corrected in the course of the proceedings…’ See also Believers Fisheries Dredging (Nig.) Ltd v. UTB Trustees Ltd (2010) 6 NWLR (part 1189) page 185, at page 202, paras D-H, Rhodes-Vivour, JCA (as he then was) held that if a Court has jurisdiction to hear a case, misjoinder or non-joinder cannot oust that jurisdiction.
I accordingly find that the Suit as constituted was properly constituted as regards the parties before the Court on the basis of the claim before the Court. I accordingly resolve this issue in favour of the Claimant that the Court has jurisdiction to hear and determine this Suit.”
The reasoning and conclusion of the lower Court is unassailable. This issue is resolved against the Appellant. The lower Court had jurisdiction to determine the suit and was correct to so hold.
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ISSUE NUMBERS TWO, THREE AND FIVE
ii) Whether the learned trial judge did not misdirect himself in law when having made a sound distinction between the words ‘deposit’ and ‘part payment’ and the legal effect thereof, came to a different and contradictory conclusion.
(iii) Whether the learned trial judge was not in error when he held that it was the Appellant who breached the contract terms as captured in Exhibit 1CW7, despite having found that time was of the essence.
(v) Whether the decision of the trial Court could be said to be reasonable having regard to the weight of evidence adduced at the trial.
SUBMISSIONS OF LEARNED COUNSEL
The Appellant submits on his issue number two that the initial amount paid by the Respondent was a deposit and not a part payment and that the implication was that being a deposit, the vendor was at liberty to assume after waiting for a reasonable period, that the buyer was no longer interested and could sell to another person and return the deposit vide BIYO vs. AIKU (1996) 1 NWLR (PT 422) 1. It was asserted that the contract between the parties employed the word “deposit” not “part payment”, thus showing
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that the proprietary interest in the property had not passed. The terms of the contract, it was opined, could not be varied by extrinsic evidence. Section 128 of the Evidence Act and the case of LARMIE vs. D. P. M. & SERVICES LTD (2005) 18 NNLR [sic] (PT 958) 88 at 459 [sic] was cited in support.
The Appellant further argued that the lower Court was wrong to have invoked the provisions of Section 167 (d) of the Evidence Act against him in respect of the letter stating that the property had been sold, because the Respondent admitted receiving the letter and equally tendered the letter in evidence. What is admitted, it was stated, required no further proof.
On the third issue, the Appellant posits that he was not in breach of the contract because time was of the essence of the contract and that even though the contract provided for payment of interest for delayed payment, the Respondent did not take advantage of the provision as he did not pay the balance together with the interest.
The Appellant conclusively submitted on the fifth issue that based on the submissions on the preceding issues the decision of the lower Court was against the
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weight of the evidence adduced at the trial.
The laconic submission of the Respondent on these issues is that the semantics or play on the words “deposit” and “part payment” were not sufficient for a reversal of the judgment since it is not every error that will lead to a judgment being reversed. It was stated that the lower Court never made a finding that time was of the essence of the contract and that the Appellant failed to show in empirical terms how the judgment of the lower Court was against the weight of the evidence and that the lower Court properly invoked Section 167 (d) of the Evidence Act. The cases ofJERIC NIG LTD vs. UBA PLC (2000) 15 NWLR (PT 691) 447, ADEGBUYI vs. APC (2013) 13 NWLR (PT 1442) 1 and STANBIC IBTC BANK PLC vs. LONGTERM GLOBAL CAPITAL LTD (2018) 10 NWLR (PT 1226) 96 at 135 were called in aid.
RESOLUTION OF ISSUE NUMBERS TWO, THREE & FIVE
Now, it is the trial Court that has the duty of evaluation of evidence and ascription of probative value thereto. The trial Court sees the faces of the witnesses, hears their testimony, feels the tension and observes the demeanour of the witnesses. It is
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therefore within the province of the trial Court which saw, heard and assessed the witnesses to evaluate and ascribe probative value to the evidence adduced. There is a duty on the trial Court to receive all available relevant evidence on an issue. This is perception of evidence. After that there is another duty to weigh that evidence in the context of the surrounding circumstances of the case. This is evaluation of evidence. A finding of fact will entail both perception and evaluation. See OLUFOSOYE vs. OLORUNFEMI (1989) 1 SC (PT I) 29 or (1989) LPELR (2615) 1 at 9, GUARDIAN NEWSPAPER LTD vs. AJEH (2011) 10 NWLR (PT 1255) 574 at 592 and WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 50-51.
There is little or no difficulty with perception of evidence, id est, receive all available relevant evidence. For evaluation of evidence, it is basically the assessment of the facts by the trial Court to ascertain which of the parties to a case before it has more preponderant evidence to sustain his claim. See ONWUKA vs. EDIALA (1989) 1 NWLR (PT 96) 182 at 208-209, OYADIJI vs. OLANIYI (2005) 5 NWLR (PT 919) 561 and AMEYO vs. OYEWOLE (2008) LPELR (3768) 1 at 9. The
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evaluation involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. A Court of trial has the duty to consider the evidence adduced in respect of any facts on which issues were joined, decide which evidence to prefer on the basis of how the evidence preponderates and then make logical and consequential findings of facts. SeeADEYEYE vs. AJIBOYE (1987) 1 NWLR (PT 61) 432 at 451 and STEPHEN vs. THE STATE (1986) 5 NWLR (PT 46) 978 at 1005.
The settled legal position is that where a trial Court unquestionably evaluates and justifiably appraises the facts, it is not the business of an appellate Court to substitute its own views for the views of the trial Court, however, an appellate Court can intervene where there is insufficient evidence to sustain the judgment or where the trial Court fails to make proper use of the opportunity of seeing, hearing, and observing the witnesses or where the findings of facts by the trial Court cannot be regarded as resulting from the evidence or where the trial Court has drawn wrong conclusions from accepted evidence or has taken
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an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or not supported by the evidence before the Court. See FHA vs. OLAYEMI (supra) at 69-71, EDJEKPO vs. OSIA (2007) 8 NWLR (PT 1037) 635 or (2007) LPELR (1014) 1 at 46-47, ARE vs. IPAYE (1990) LPELR (541) 1 at 22, WOLUCHEM vs. GUDI (1981) 5 SC 291 at 320 and FASIKUN II vs. OLURONKE II (1999) 2 NWLR (PT589) 1 or (1999) LPELR (1248) 1 at 47-48.
The Appellant contests the manner in which the lower Court ascribed probative value to the testimonial and documentary evidence adduced and he has argued that the contract having employed the word “deposit” instead of “part payment” connoted that the interest in the property had not passed and that he could still sell the property where the balance is not paid within a reasonable time. It is trite law that in interpreting a document, the document must be read as a whole and not parts in isolation, and that different parts of a document must be interpreted in the light of the whole document and an effort must be made to achieve harmony amongst its different
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parts. See UNILIFE DEVELOPMENT CO. LTD vs. ADESHIGBIN (2001) 2 SCNJ 116, MBANI vs. BOSI (2006) 11 NWLR (PT 991) 400, ADETOUN OLADEJI NIG LTD vs. NIGERIA BREWERIES PLC (2007) 1 SCNJ 375, AGBAREH vs. MIMRA (2008) 2 NWLR (PT 1071) 378 and NIGERIA ARMY vs. AMINU-KANO (2010) 5 NWLR (PT 1188) 429. This should be the approach in interpreting Exhibit 1CW7, the contract between the parties.
Pertinent in this regard are the stipulations of paragraphs 2, 3, 4, 5 and 7 of the habendum of the said Exhibit 1 CW7. They read:
“2. The Purchaser shall at the execution of this contract pay to the Holder, vide Suru Worldwide Ventures Limited a deposit of Ninety Million Naira (N90,000.000.00).
3. The Purchase shall be completed on the 31st day of January 2011 when the Purchaser shall pay to Suru Worldwide Ventures Nigeria Limited the sum of Ninety Million Naira (N90,000,000.00) being the balance of the purchase money and the Purchaser shall be entitled to proper instrument of transfer executed by the Vendor, evidence of payment of Land Use Charge on the property and all other documents necessary and required to secure the registration of the Purchaser as
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proprietor of the property pursuant to any statutory requirement.
4. That with this down payment, the Vendor hereby agrees to surrender to the Purchaser the original title document of the property being the Deed of assignment dated 2nd May 1991 and registered as No. 58 at page 58 in Volume 1929 of the Register of Deed kept at the Lands Registry, Ikeja, Lagos in her possession, to the Purchaser.
5. Mrs. Ayodeji Oyeyemi Adewunmi shall hold as Stakeholder the original of this Contract for Sale, duly signed by the Vendor, the Holder and Purchaser and shall on receipt of the said deposit of N90,000.000.00 in the Bank of Account Suru Worldwide Ventures Nigeria Limited release same to the Purchaser.
7. If from any default of the Purchaser, the purchase is not completed on the day herein before fixed for completion, the Purchaser shall pay interest on the unpaid balance of the purchase money at the then current bank rate per annum up to the date of actual completion.”
An integral reading of the above Clauses reveals that upon the initial payment being made, there was to be a concluded contract between the parties. This is underscored by Clause 4
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which provided for the original title documents to be surrendered to the Respondent upon the down payment being made. Furthermore, by Clause 7, the concluded contract is not affected by any default in payment of the balance on the due date as there is in built therein, the payment of interest on the unpaid balance where it is not paid on the due date. By all odds, notwithstanding that the word “deposit” as opposed to “part payment” was used, when the document is interpreted as a whole the resultant harmony depicts a concluded contract binding on the parties such that resiling therefrom would amount to a breach of contract. The lower Court properly discharged its duty of evaluation of the evidence when it held that there was a valid contract between the parties for the sale of the property.
The Appellant has built monuments of legalese on the invocation of the provisions of Section 167 (d) of the Evidence Act by the lower Court, but it is all huff and puff and much ado about nothing. Properly contextualized, it is all about when the Respondent was informed that the property had been sold to someone else; whether it was after he had
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paid the balance. The lower Court which heard and saw the witnesses was emphatic that the Appellant and his witnesses did not satisfy it that the property was in fact sold as they failed to mention who the property was sold to, or tender any documents evidencing the sale (See page 273-274 of the Records). It consequently held that the Appellant’s witness was not a witness of truth and invoked Section 167 (d) of the Evidence Act having rightly evaluated the evidence and held that the Appellant’s letter informing the Respondent that the property had been sold, having referred to the Respondent’s letter on payment of the balance, showed that the balance had been paid before the Appellant wrote to inform the Respondent that the property had been sold to someone else. The lower Court having unquestionably evaluated the evidence and justifiably appraised the facts, an appellate Court will not intervene just to substitute its own views for the views of the lower Court which had the unparalleled advantage of seeing and hearing the witnesses and observing their demeanour.
Without a doubt, the law is settled that if time is made the essence of a
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contract and the stipulated time is not met, the other party will not be held to the contract: M. O. KANU SONS & CO LTD vs. FBN PLC (2006) LPELR (1797) 1 at 18.
Time is said to be of the essence of a contract where:
1) The parties have expressly stipulated in their contract that the time fixed for performance must be exactly complied with.
2) The circumstances of the contract or nature of the subject-matter indicate that the fixed date must be exactly complied with.
3) Where time was not originally of the essence of the contract, but one party has been guilty of undue delay, the other party may give notice requiring the contract to be performed within a reasonable time.
In pungent terms, time is of essence where the parties have expressly made it so in clear, firm and unequivocal terms. See NBCI vs. INTEGRATED GAS (NIG) LTD (2005) LPELR (2016) 1 at 30, NWAOLISAH vs. NWABUFOH (2011) LPELR (2115) 1 at 36-37, FAWEHINMI vs. GLOBE MOTORS HOLDINGS (NIG) LTD (2017) LPELR (42887) 1 at 24, ADEMETAN vs. INC. TRUSTEES OF THE RCCG (2015) LPELR (24576) 1 at 56 and FEDERAL MINISTRY OF HEALTH vs. DASCON (NIG) LTD (2017) LPELR (43621) 1 at 28-29.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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In order to ascertain if the parties univocally made time of the essence in the contract, we turn to the provisions of Clauses 3 and 7 of the habendum of the contract. They stipulate:
“3. The Purchase shall be completed on the 31st day of January 2011 when the Purchaser shall pay to Suru Worldwide Ventures Nigeria Limited the sum of Ninety Million Naira (N90,000,000.00) being the balance of the purchase money and the Purchaser shall be entitled to proper instrument of transfer executed by the Vendor, evidence of payment of Land Use Charge on the property and all other documents necessary and required to secure the registration of the Purchaser as proprietor of the property pursuant to any statutory requirement.
7. If from any default of the Purchaser, the purchase is not completed on the day herein before fixed for completion, the Purchaser shall pay interest on the unpaid balance of the purchase money at the then current bank rate per annum up to the date of actual completion.”
It seems effulgent that the stipulation for interest to be paid on the unpaid balance if not paid on the due date makes it lucent that there is nothing
35
sacrosanct as to when the balance was to be paid and therefore time was not of the essence. The provision is not firm that the Appellant is not to be held to the contract if the Respondent fails to pay on the due date. It merely stipulates that interest is to be paid on the unpaid balance at the current bank rate. It seems therefore that it would amount to a breach of contract where the Appellant proceeds to sell the property to another person on the basis that the balance was not paid on the due date since the contract is not firm and unequivocal that time is of the essence: FEDERAL MINISTRY OF HEALTH vs. DASCON (NIG) LTD (supra).
The finding of the lower Court in this regard at page 271 of the Records that:
“However with the insertion of default charges in Clause 8 [sic], the parties having envisaged that there may be default occasioned in completing the payment of the purchase of the purchase price by 31st January 2011 decided by consensus ad idem not to be bound by time again and rather gave an extension of time within the Claimant can conclude the purchase price, with the only proviso that for the period in between when the purchase price
36
falls due on 31st January 2011 and when the purchase price is actually completed, the Purchaser will pay interest on the unpaid balance at the then current bank rate per annum.
Literally interpreting this clause, it does not make it mandatory for the Claimant as the Purchaser to conclude the purchase price on 31st January 2011 provided he pays the default interest fee whenever he concludes the payment. “
flows from the evidence on record and it is not perverse. An appellate Court will therefore not interfere. The decision of the lower Court is not against the weight of the evidence. These issue numbers two, three and five are resolved against the Appellant.
ISSUE NUMBER FOUR
Whether the learned trial judge was not in error when he failed to follow the trite and well laid down principles of law concerning the award of damages
SUBMISSIONS OF LEARNED COUNSEL
It is the Appellant’s submission that the special damages claimed was not strictly proved as the documents tendered established only the sum of N14m as opposed to the N27.5m claimed which the lower Court awarded. The case of ENEH vs. OZOR (2016) 7 SC (PT IV) 155,
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NEKA B. B. B. MANUFACTURING CO LTD vs. ACB LTD (2004) 1 SC (PT I) 32, NNPC vs. CLIFCO NIG LTD (2011) 4 SC (PT I) 143, ABACHA FOUNDATION FOR PEACE & UNITY vs. UBA PLC (2010) 2-3 SC (PT II) 74 were referred to. It was opined that the measure of damages for breach of contract is the loss reasonably within the contemplation of the parties at the time of the contract and that the special damages claimed and awarded by the lower Court was not within the contemplation of the parties. The cases of UNIVERSAL VULCANISING (NIG) LTD vs. IJESHA UNITED TRADING (1992) [no volume] NWLR (PT 266) 388 and CHITEX IND LTD vs. OCEANIC BANK INT’L (2005) 7 SC (PT II) 58 were relied upon.
It is the further contention of the Appellant that the money paid for the property does not belong to the Respondent but to a corporate body and that the money had been returned to it and the Appellant could therefore not be asked to pay interest on it; more so, when the contract only provided for payment of interest by the Respondent where the balance is not paid on the due date. The case of A-G FERRERO & CO LTD vs. HENKEL CHEMICAL (NIG) LTD (2011) 6-7 SC (PT I) 168-169 was called
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in aid and it was conclusively submitted that parties are bound by the terms of their agreement and that no one, including the Court can legally or properly read into the agreement what was not agreed upon vide AGBAREH vs. MIMRA (2008) 1 SC (PT III) 112-113, ARJAY LTD vs. AIRLINE MANAGEMENT SUPPORT LTD (2003) 2-3 SC 1 or (2003) 7 NWLR (PT 820) 577 and EVBUOMWAN vs. ELEMA (1994) 7-8 SCNJ (PT II) 243.
In his terse response, the Respondent submits that there is no appeal against each of the heads of damages awarded by the lower Court and therefore there is no valid appeal in respect of the heads of relief awarded by the lower Court.
RESOLUTION OF ISSUE NUMBER FOUR
The disceptation in this issue is with respect to the special damages awarded by the lower Court and interest ordered to be paid on the purchase price, the consideration for which the purchase price was paid having failed. The Respondent has contended that there is no appeal against each of the heads of damages awarded by the lower Court. I am unable to agree with this contention. It is my deferential view that the Appellant’s challenge to the special damages awarded is that the same
39
was not strictly proved by the evidence adduced as required by the law. It is a complaint that can be situate under ground 6, the omnibus ground of appeal; that the judgment is against the weight of the evidence. I iterate that the omnibus ground of appeal encompasses a complaint that the inference or conclusion reached by the Court on the accepted evidence cannot be justified. In this instance, the inference being that on the accepted evidence the amount claimed as special damages and awarded by the lower court was established by the evidence. See NPF vs. OMOTOSHO (supra).
Now, the hornbook law is that special damages has to be specifically pleaded and particularised and strictly proved by the evidence. See DANIEL HOLDINGS LTD vs. UBA PLC (2005) 13 NWLR (PT 943) 533 at 547 & 522, RCC (NIG) LTD vs. ROCKONOH PROPERTIES CO. LTD (2005) 10 NWLR (PT 934) 615 at 637 and ADECENTRO (NIG) LTD vs. COUNCIL OF OAU (2005) 15 NWLR (PT 948) 290 at 316. Strict proof however does not mean unusual proof; it simply implies that a claimant who has the advantage of being able to base his claim upon a precise calculation must give the defendant access to the facts which
40
make such a calculation possible: IMANA vs. ROBINSON (1979) 3 & 4 SC 1 at 23 and USMAN vs. ABUBAKAR (2001) 16 WRN 160 at 170 -171. In essence, there must be particulars upon which special damages are based, there must be evidence in proof and the evidence must be credible. See NWANJI vs. COASTAL SERVICES (NIG) LTD (2004) 10 MJSC 154 at 168.
I have already set out the special damages claimed and the award of the same by the lower Court. The Appellant’s contention is simply that the amount claimed as special damages was not strictly proved. The special damages claimed as particularised and which the Appellant complains about is the award of N18,000,000.00 which the Respondent said he paid as agency fee to the agent for procuring the purchase of the property and the sum N9,501,097.00 which the Respondent claimed he paid as legal fees for legal services on the purchase of the property. The evidence adduced in proof by the Respondent in paragraphs 14 and 18 of his witness statement on oath which he adopted as his evidence in chief is that he made part-payment of N9, 000,000.00 to the agent and part payment of N5, 000.000.00 to his Solicitors. This
41
testimony was confirmed in paragraph 12 of the witness statement of oath of the agent who testified as CW2 and in paragraph 12 of the witness statement on oath of the Solicitor who testified as the CW3. So what the Respondent strictly proved was the payment of N9million and N5million respectively, totalling N14million; as opposed to the amount claimed of N18,000,000.00 and N9,501,097.00 totalling N27,501,097.00. In granting the special damages claimed the lower Court awarded the sum of N27, 501,097.00 which was not strictly proved by the evidence. The lower court consequently drew an inference or conclusion on the available evidence which cannot be justified. The said award of N27, 501,097.00 cannot be allowed to stand and it is hereby reduced to the sum of N14, 000.000.00 which the evidence established. It is settled law that an appellate court can, inter alia, interfere with the damages awarded by a trial court where the trial court acted under wrong principles of law in the award and when it failed to consider material factors in the award of damages; in this instance, the amount proved by the evidence. SeeBALOGUN vs. LABIRAN (1988) 3 NWLR (PT 80) 66,
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INTERNATIONAL MESSENGERS NIG LTD vs. PEGOFOR IND. LTD (2005) 5 SC (PT I) 38, ODUWOLE vs. WEST (2010) LPELR (2263) 1 at 15, SPDC NIG LTD vs. TIEBO (2005) 9 NWLR (PT 931) 439, B.B APUGO & SONS LTD vs. OHMB (2016) LPELR (40598) 1 at 61-62 and ARAB CONSTRUCTION LTD vs. ISAAC (2012) LPELR (9787) 1 at 16-17.
The Appellant’s complaint on the interest awarded is two-fold; firstly, that the contract only provided for payment of interest by the Respondent in the event of delayed payment of the balance and secondly, that he could not be ordered to pay interest on money he had already refunded, this relates to the post judgment interest awarded by the lower Court. The Appellant seems to labour under the misconception that the interest awarded by the lower Court was based on the contract. No. The accepted evidence is that the full purchase price was paid to the Appellant, but the Appellant failed to deliver the property to the Respondent thus breaching the contract, whereupon the Respondent became entitled to the refund of the money he paid for a consideration that had totally failed. In those circumstances, the payment of interest on the purchase price
43
for the period the money was in the custody of the Appellant was clearly within the contemplation of the parties since in their contract provision had been made for payment of interest in different circumstances so the award of interest for the period when the money was with the Appellant until 9th March 2011 when it was refunded was justified.
However, different considerations apply with respect to the post-judgement interest. The accepted evidence on record is that the amount paid as purchase price was refunded to the Respondent on 9th March 2011. The judgment of the lower Court was delivered on 23rd May 2017. So as at the date of the judgment the money had long been refunded. Indeed, as at 20th May 2011 when the writ of summons was sealed the money had already been refunded. The lower Court was therefore wrong to have made the order for post-judgment interest until the sum is liquidated. The award of post-judgment interest is accordingly set aside. This issue number four is partly resolved in favour of the Appellant.
CONCLUSION
It is now the appropriate time to berth this judgment at the quays. The Appellant has registered relative success in
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his issue number four. Consequent upon the setting aside of the post-judgment interest awarded by the lower Court and the reduction in the special damages awarded from N27,501,097.00 to N14,000,000.00, the appeal succeeds in part to that extent only. The decision of the lower Court in all other respects is affirmed. The parties are to bear their respective costs of this appeal.
MOHAMMED LAWAL GARBA, J.C.A.: I agree with conclusion of my learned brother, UGOCHUKWU OGAKWU, JCA, in the lead judgment in this appeal, which I read in draft, that there is merit in the arguments of the Appellant in respect of the award of post judgment interest and the amount awarded as special damages by the Lower Court.
For the pungent reasons adumbrated in the lead judgment, I too allow the appeal in part and affirm the decision Of the Lower Court in the other part, as stated in the lead judgment.
JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother UGOCHUKWU ANTHONY OGAKWU JCA afforded me the opportunity of reading in draft before today the Judgment just delivered and I agree with the reasoning and
45
conclusion contained therein, I adopt the Judgment as mine with nothing further to add.
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Appearances:
J. Ojogbede, Esq. For Appellant(s)
Johnson O. Esezoobo, Esq. For Respondent(s)
