KIPDC & ORS v. OXYGEN HEALTHCARE LTD & ANOR (2020)

KIPDC & ORS v. OXYGEN HEALTHCARE LTD & ANOR

(2020)LCN/14174(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, May 15, 2020

CA/A/527/2018

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

KWARA INVESTMENT AND PROPERTY DEVELOPMENT COMPANY LIMITED (KIPDC) 2. HARMONY HOLDINGS LIMITED 3. MR. ADEBAYO SANNI APPELANT(S)

And

1. OXYGEN HEALTHCARE LIMITED 2. WORTHEPLUS LIMITED RESPONDENT(S)

RATIO

WHETHER OR NOT PARTIES TO A CONTRACT ARE BOUND BY ITS TERMS

The law is trite and it is a general rule that parties to a contract are bound by its terms. See UNION BANK OF NIGERIA LTD VS. OZIGI (1994) LPELR-3389(SC); ISHENO VS. JULIUS BERGER NIGERIA PLC (2008) LPELR-1544 (SC) and OFORISHE VS. NIGERIAN GAS CO. LTD (2017) LPELR-42766(SC).
Also in interpreting a contract the law will look at the terms of that contract. The apex Court in AFROTEC TECHNICAL SERVICES (NIGERIA) LTD VS. MIA & SONS LTD & ANOR (2000) LPELR-219(SC) in explaining what needs to be done when interpreting a written contract held that:
“The law is long settled that in interpreting the provisions of a written contract, no addition thereto or, subtraction therefrom is permissible. The words used must be given effect to and no word should be ignored in the interpretation of the intention of the parties, otherwise the Court will be seen as rewriting the agreement between the parties.”
This was affirmed in BABATUNDE & ANOR VS. BANK OF NORTH LTD & ORS (2011) LPELR-8249(SC) where it was held that:
“In the interpretation of contractual transaction Court will always hold parties bound by the terms of their agreements when construed according to thestrict, plain and common meaning of the words in the instrument as they stand.” As it relates to the termination of a contract, the Supreme Court held in WARNER & WARNER INT. VS. F.H.A. (1993)LPELR – 3471(SC)that: “before there can be an effective termination of a contract, there must be strict compliance with the conditions laid down for the termination of the contract…” PER IDRIS, J.C.A.

WHETHER OR NOT GROUNDS OF APPEAL MUST RELATE TO THE ISSUES RAISED IN THE JUDGEMENT AGAINST WHICH THE APPEAL LIES

It is trite law that the grounds of appeal must relate to the issues raised in the judgment against which the appeal lies. A ground of appeal which does not relate to the decision of the trial Court in the judgment appealed against is incompetent and ought to be struck out. In MERCANTILE BANK OF NIGERIA PLC & ANOR VS. NWOBODO (2005) LPELR-1860(SC) the apex Court held: “It is always an elementary law that grounds of appeal must of necessity arise from the judgment, ruling or decision or any pronouncement of the Court below. When a ground has not the remotest connection with what the Court below decided and which agitated the mind of the Appellant to seek for a review and overturn the decision, but he misconceived what he ought to complain against and confused himself by setting up a case not in existence, the Appellate Court would naturally throw away the incompetent appeal.”PER IDRIS, J.C.A.

DEFINITION OF TRESPASS

Trespass is the unjustified interference with one’s possession and enjoyment of property. See ADETONO & ANOR VS. ZENITH INTERNATIONAL BANK PLC (2011) LPELR-8237(SC); OLAGBEMIRO VS. AJAGUNGBADE III & ANOR (1990) LPELR-2554 (SC) and OMORHIRHI & ORS VS. ENATEVWERE (1988) LPELR – 2659(SC). PER IDRIS, J.C.A.

WHETHER OR NOT WHEN A FACT IS IN ISSUE OR IN CONTENTION, THE TRUTH OF SUCH FACTS CAN BE ELICITED DURING CROSS-EXAMINATION

Definitely, this is the law however the current position of the law is that when a fact is in issue or in contention, the truth of such facts can be elicited during cross-examination. See FCMB VS. ROPHINE (NIG) LTD & ANOR (2017) LPELR-42704(CA). PER IDRIS, J.C.A.

THE LAW AS IT RELATES TO DAMAGES IN TRESPASS

Now, the law as it relates to damages in trespass was stated in REGISTERED TRUSTEES OF MASTER’S VESSEL MINISTRIES (NIG) INCORPORATED VS. EMENIKE & ORS (2017) LPELR-42836(CA) where the Court held that:
“The law is also clear that trespass is actionable per se and once proved, a Plaintiff is entitled to damages even without the proof of actual injury resulting from the wrongful acts constituting the trespass. A party who proves trespass is entitled without more to general damages which is quantified by relying on what would be the opinion and judgment of reasonable person in the circumstances of the case.”
In fact, the Supreme Court in OWHONDA VS. EKPECHI (2003) LPELR-2844(SC) held that:
“a person may be granted damages for trespass and an injunctive relief even though there was no proof of ownership of the land; mere exclusive possession is enough.”
It is therefore settled law that once a person’s exclusive possessory enjoyment of their land have been infringed upon, they are entitled to be compensated naturally in law and equity. Which means that the Appellants trespassed on the project site as the 1st Respondent had lawful possession of the site. However, the Supreme Court in ONWU & ORS VS. NKA & ORS (1996) LPELR-2711(SC) also held that:
“The law is well settled that it is not enough for the Court to simply award damages in an action for trespass to land without giving any reason as to how it arrived at what amounted to reasonable damage.”PER IDRIS, J.C.A.

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): The Appellant in this appeal by Notice of Appeal dated 22nd March, 2018 and filed on the 26th day of March, 2018 appealed against the decision/judgement of the High Court of the Federal Capital Territory, Abuja in Suit No. FCT/HC/CV/979/2013 delivered on the 8th of day of March, 2018 by Honourable Justice Peter O. Affen wherein the Court granted the Respondents a whooping sum of N30,000,000 (Thirty Million Naira) as general damages for trespass in forcefully evicting the 1st Respondent from the project site. The Trial judge also awarded the sum of N100,000 (One Hundred Thousand Naira) in favour of the 1st Respondent against the 1st-3rd Appellants and the 2nd Respondent jointly and severally.

The facts of the case leading to this appeal as adduced from the pleadings and evidence tendered at the trial Court are to the effect that the 1st Appellant and the 2nd Respondent are parties to a Joint Venture Agreement dated 25/07/2011 for the development of luxury apartment and building 54% of the 1st Appellant’s Estate on Plot 319 Galadimawa District, Federal Capital Territory measuring about

9.07 hectares. The 2nd Respondent acting in furtherance of the JVA by virtue of clause 5(2), entered into 5 MOUs dated 12th November, 2012 with the 1st Respondent as subcontractors and financiers to develop specific portions of the project land.

The 1st Respondent mobilised to site and commenced development and had reached various stages of completion when agents of the 1st and 2nd Appellants together with the 3rd Appellant invaded the project land without notice or warning on the 11th March, 2013 and chased the project manager, staff and workmen and where not granted access back until sometimes in August 2013 after the Appellants had demanded and received payment of 500,000 as precondition for re-entry. Upon entry, it was discovered that building materials and other equipment left on site were missing or damaged. The 1st Respondent therefore initiated the instant suit against the Appellant claiming jointly and severally the reliefs contained in the amended statement of claim dated 19/6/2017 as follows:
1. A DECLARATION that the five Memorandam of Understanding dated 2nd November 2012 between the 1st Defendant and the Plaintiff is valid, binding and

enforceable against the 1st and 2nd Defendants, their agents, privies, assigns, legal representative and successors-in-title.
2. A DECLARATION that the 3rd Defendant and 4th Defendant are meddlesome interlopers and are not privy to the Memorandam of Understanding dated 2nd November 2012 and the Joint Venture Agreement of 25th July 2011, and have no legal or equitable interest in the project described in the JVA.
3. A DECLARATION that the 2nd, 3rd and 4th Defendants are liable jointly and severally for trespass and breach of the five Memorandam of Understanding dated 2nd November 2012 and the Joint Venture Agreement for their forceful ejection of the Plaintiff from the project site described in the five Memorandam of Understanding dated 2nd November 2012.
4. An ORDER of this Honourable Court compelling the 1st, 2nd, 3rd and 4th Defendants to jointly and severally refund to the Plaintiff the sum of N500,000.00 (Five Hundred Thousand Naira only) paid to the 2nd Defendant as a condition for re-entry.
5. An ORDER of this Honourable Court granting an award of special damages against the 1st, 2nd, 3rd and 4th Defendants jointly and severally in

favour of the Plaintiff as follows:
(i) The sum of N2,052,500.00 being cost of construction items damaged or lost on project site occasioned by the Defendants forceful ejection, thus:
(a) 800 bags of cement- N1,680,000
(b) 210 constructions pegs- N52,500
(c) 2 Tipper loads of Masaka Sand- N140,000
(d) 2 Tipper loads of 1/8 stone chippings- N180,000
TOTAL- N2,052,500
(ii) The sum of N5,112,500 (Five Million, One Hundred and Twelve thousand, Five Hundred Naira Only) being the cost of wages of workmen forcefully ejected from the project site by agents of the 2nd- 4th Defendants, thus:
(a) 15 bricklayers (N5,000 per day)- N75,000
(b) 15 labourers (N2,500 per day)- N37,500
(c) 1 Project Supervisor (Deposit)- N2,000,000
(d) 1 Architect- N1,000,000
(e) Site Engineer & Team- N2,000,000
TOTAL- N5,112,500
(iii) The sum of N112,000 (One Hundred and Twelve Thousand Naira Only) being cost of attending the meeting at Harmony Holdings, Ilorin, Kwara thus:
(a) Dr Godwin Nnadozie (Return Air Ticket)- N50,000
(b) Emmanuel Egwuagu (Return Air Ticket)- N50,000
(c) Hotel Accommodation (One

Night Stay)- N12,000
TOTAL- N112,000
6.1 AN ORDER of this Honourable Court granting a decree of specific performance mandating the 1st and 2nd Defendants to perform the contract in the Memorandum of Understanding dated 2nd November 2012 between the 1st Defendant and the Plaintiff and the Joint Venture Agreement dated 28th July 2011 between the 1st and 2nd Defendants.
OR IN THE ALTERNATIVE:
Where this Honourable Court determines it is impossible to grant a decree of specific performance compelling the 1st and 2nd Defendants to perform the contract in the Memorandum of Understanding dated 2nd November 2012 between the 1st Defendant and the Plaintiff and the Joint Venture Agreement dated 28th July 2011 between the 1st and 2nd Defendants, to order as follows:
6.2 AN ORDER of the Honourable Court awarding damages for loss of profit against the 1st, 2nd and 4th Defendants in the sum of N278,129,000.00 (Two Hundred and Seventy-Eight Million, One Hundred and Twenty-Nine Thousand Naira) on the entire project site described in the Five Memorandam of Understanding dated 2nd November 2012, in favour of the Plaintiff as calculated thus:

(i) Plot DD1-DD3, DD11-DD12- 5nos of 4 bedroom detached duplex:
Market Price (per unit)- N55,000,000.00
Cost of Erection- N32,064,000.00
Loss of Profit (per unit)- N12,936,000.00
(Loss of profit per unit) x 5units = N64,680,000.00
(ii) Block A, TR1-TR33- 12nos of 4-bedroom terraced duplex
Market Price (per unit)- N32,000,000.00
Cost of Erection- N19,000,000.00
Loss of Profit (per unit)- N13,000,000.00
N13,000,000.00 (Loss of Profit per unit) x 12 units= N156,000,00.00
(iii) Plot SDD7-SDD9- 6nos of 4-bedroom semi-detached duplex
Market Price (per unit)- N45,000,000.00
Cost of Erection- N26,064,000.00
Loss of Profit (per unit)- N18,936,000.00
N18,936,000.00 (Loss of Profit per unit) x 6 units= N113,616,000.00
(iv) Plot SDB1-SDB7-11, SDB13-SDB16- 11nos of 3 bedroom semi-detached bungalows
Market Price (per unit)- N26,000,000.00
Cost of Erection- N17,634,000.00
Loss of Profit (per unit) -N8,366,000.00
8,366,000.00 (Loss of Profit per unit) x 11 units =N92,026,000.00
TOTAL LOSS OF PROFIT- N64,680,000.00+ N156,000,000.00+ N113,616,000.00+ N92,026,000.00+ N129,936,000=

N556,258,000.00 (Five Hundred and Fifty-Six Million, Two Hundred and Fifty-Eight Thousand Naira) x 50% (Plaintiff’s agreed share profit of the JVA) = N278,129,000.00 (Two Hundred and Seventy-Eight Million, One Hundred and Twenty-Nine Thousand Naira).
7. AN ORDER of this Honourable Court awarding damages jointly and severally against the 1st, 2nd, 3rd, and 4th Defendants in the sum of N250,000,000.00 (Two Hundred and fifty Million Naira) for cost of trespass and meddlesome interlopers
8. The cost of this suit in the sum of N7,000,000.00 (Seven Million Naira) only.

The Defendants joined issues with the Plaintiff in their separate statements of defence. The Appellants being dissatisfied with the decision of the trial Court sought leave of the Court of Appeal to appeal against the decision. In accordance to the rules of Court, parties filed and adopted their respective briefs of argument at the hearing of the appeal.

In the Appellants’ brief three (3) issues were distilled for the determination of this appeal thus:
1. Whether the termination of the JVA (Exhibit P2) between the Appellants and the 2nd Respondent was done

validly done. (Grounds 1 and 2)
2. Whether Learned Trial Judge was right to have held that the Appellants were liable in trespass having found that the Joint Venture Agreement between the Appellant and the 2nd Respondent had been terminated as at the time the 1st Respondent was evicted by the FCDA. (Grounds 3, 5, 6 and 7)
3. Whether the eviction of the 1st Respondent by the Department of Development Control (FCDA) Abuja from the project site has any nexus with the Appellants thereby imposing liability in trespass on the Appellants. (Ground 4)

The Appellants in relation to issue one argued that the JVA (Exhibit P2) expressed the clear intention of how it should be terminated and same was accepted and consented to by the 2nd Respondent. The Appellants further argued that the termination was effectual, effective and valid as it was done in compliance with the dictates of Exhibit P2. The Appellant also submitted that the position and situation of the pleadings of the parties before the Court and evidence tendered (including Exhibit P2) revealed that nothing in the JVA mandates the Appellants to give the 2nd Respondent a 2 week notice before

issuance of the 3 month notice.

Additionally, the Appellants maintained that the effectiveness of the termination of the JVA was clearly expressed by the subsequent execution of another contract between the duo via Exhibit P27 of 28th October, 2014 to replace and supplant the same being a new binding instrument between the parties. The Appellants maintained that the assentation above was accepted by the trial judge and was espoused in his judgment on page 1042 of the record of appeal thus:
“As stated herein before, the evidence adduced before me reveals that the JVA dated 28/7/11 between KIPDC and Wortheplus pursuant to which the MOUs were made has eventually been terminated and supplanted by a fresh Memorandum of understanding dated 28/10/14 [D28] between HHL Investment and Property Development Company Limited and Wortheplus Ltd; and it goes without saying that the termination of the JVA sounds the death knell on the MOUs. It therefore seems to me obvious that neither the JVA nor the MoUs can be specifically performed.”

As it relates to issue two learned counsel for the Appellants argued that finding of the trial Court assumed two

contradictory positions on the same issue of the validity of the JVA (Exhibit P2). The Appellants’ counsel argued that the finding of the Court was perverse, self-defeating, self-serving and deliberately occasioning miscarriage of justice.

Counsel for the Appellants also submitted that the trial Court failed completely in the duty imposed on him to apply the right principles of law in the construction and interpretation of Articles 7.1, 7.2 and 12.1 of the JVA and the other Exhibits before the Court (including: Exhibits P11/D31, D37, D38 and P24). Counsel in addition argued that the cardinal principle of construction of instruments entered into by parties are that instruments are not to be read disjointly or in isolation but be read jointly in order to find the real intention of the parties.

Counsel for the Appellants then submitted that it is settled law that parties are bound by pleadings filed by parties and any evidence at variance with pleadings must be disregarded. Finally, counsel argued that the Court having held that the JVA was validly terminated, all activities purportedly carried out by the 1st Respondent on the project site were

done after the termination of the JVA, as such the decision of the trial judge was perverse and ought to be set aside completely.

In regard to issue 3, counsel for the Appellants argued that the position taken by the trial judge is unmaintainable, unsupported in law and smacks logic in the head. Counsel submitted that the Department of Development Control is a government agency statutorily established to manage and regulate buildings and that nothing placed before the Court shows that the decision of the said Agency complained of was done arbitrarily or outside its powers. Furthermore, that the trial judge merely reached its findings on assumptions, presumptions of irregularities, anger, sentiment and misunderstanding of the laws.

Counsel for the Appellants then submitted that the trial Court had no basis whatsoever to have accredited the discharge of the official duties of the first Development Control on the 3rd Appellant. Additionally, Counsel argued that it was never the case of the 1st Respondent and was never so pleaded and evidence led on facts not pleaded goes to no issue. Counsel stressed that the 3rd Appellant denied entering the site to

forcefully eject anybody but merely exercised his civic duty by lodging a compliant to relevant authority which is subject to their investigation, confirmations and internal control mechanism. Counsel concluded that it was erroneous finding of the trial Court to hold that the 3rd Appellant orchestrated the eviction of the 1st Respondent from the project site, as the Court did avail its self of the confirming the credibility of the act of the said agency before reaching its conclusion.

Furthermore, counsel for the Appellants argued that the reliefs submitted to the Court are declaratory and a Plaintiff is expected to lead credible and convincing evidence to substantiate any position it wants the Court to hold in his favour. Additionally, counsel argued that having resolved 85% of issues identified in favour of the Appellants, and having not established connection, connivance or misuse of power and office against the Development control, the Courts award of 30,000,000 is perverse and ought to be set aside. Finally, it was argued that he sum was awarded as general damages in compensation for the alleged trespass which defeats the principal of the award

of general damages as established by the Courts of law.

The 1st Respondent distilled 2 issues for the determination of this appeal thus:
1. Whether the trial Court was right when it held that the Appellants were liable for trespass. (Ground 1, 2 and 3)
2. If the answer to issue 1 is YES, whether the 1st Respondent is entitled to the sum of 30,000,000 granted as general damages for trespass.

In relation to the first issue the 1st Respondent submitted that the Appellants Exhibit P11- Notice of Termination was hinged on Wortheplus (2nd Respondent’s) breach of clause 7.1 and 7.2 of the JVA (Exhibit P2) which relate to funds, finance, cost of advertising and provision of a pickup van for the project owner’s use. The 1st Respondent then argued that a critical examination of clause 12.1 reveal an unequivocal intendment that in the case of any alleged breach of the JVA capable of being remedied, the KIPDC shall first give a written Notice to Wortheplus specifying the breach and if Wortheplus fails to remedy the breach within 2 weeks then KIPC is entitled to issue a notice of termination.

Counsel for the 1st Respondent argued

that parties are bound by the terms of a contract, as such if any dispute should arise in respect to the contract, then the terms in any documents which constitute the contract are invariably the guide to its interpretation. From the foregoing, the 1st Respondent then argued that by the terms of clause 12.1 of the JVA, the 1st– 3rd Appellants ought to have issued a written notice specifying any breach of the JVA and the failure to issue the written notice proved fatal to the effectiveness of the written notice of intention to terminate (Exhibit P11) contrary to the 1st– 3rd Appellant’s denial.

Additionally, counsel for the 1st Respondent argued that the existence of two separate documentary evidence further debunk the assertion by the 1st– 3rd Appellants that KIPDC had effectively terminated the JVA before 11th March, 13 when the 1st Respondent was forcefully ejected from the project site. The first piece of evidence according to the counsel of the 1st Respondent is the existence of Exhibit D37 which is a letter dated 20th May, 2013 titled Re: Termination of the Joint Venture Agreement, issued by the 1st Appellant to the 2nd

Respondent which shreds any iota of doubt that the Appellants had effectively terminated the JVA before 11th March, 2013 as it also purports to terminate the same JVA between KIPDC and Wortheplus. The letter mentioned above reads thus:
“As a result of the above, we write this letter to confirm that the Joint Venture Agreement between Kwara Investment and Property Development Company and Wortheplus Limited dated 28th July, 2011 no longer represents the spirit and letter upon which the project was premised and can therefore no longer be operative. It is hereby terminated.”

Counsel for the 1st Respondent then that from the letter above and particularly the sentence “…It is hereby terminated”, leaves an inescapable conclusion that the JVA (Exhibit P2) was terminated on the 20th May, 2013 and that the letter constitutes admission that the Appellants had full knowledge that the JVA was valid and effective at the date of issuance of Exhibit D37. Secondly, counsel for the 1st Respondent argued that the existence of Exhibit D38 corroborates that Exhibit D37 as it stated that the 1st Appellant “maintained” that the

termination of the JVA dated 20th May, 2013 served on the 1st Respondent still stands. In concluding this argument, the 1st Respondent submitted that the Appellants cannot be allowed to resile from the position maintained and corroborated by Exhibits D37 and D38 to the effect that the JVA continued in existence beyond 11th March, 2013 when the 1st Respondent was forcefully evicted from the project site.

As it relate to the Appellants’ issue two, the 1st Respondent argued that the issue is incompetent. To further buttress this assertion, counsel for the 1st Respondent submitted that the trial Court never held that “…the Joint Venture Agreement between the Appellants and the 2nd Respondent had been terminated as at the time the 1st Respondent was evicted by the FCDA”. The 1st Respondent’s counsel further argued that the Appellants recklessly advanced an unsubstantiated assertion alleging that the trial judge made conflicting findings. The 1st Respondent then argued that the Appellants’ Issue 2 distilled from grounds 3, 5, 6 and 7 of the Notice of Appeal and all its arguments are not derived from the decision of the Court and

is therefore incompetent. The 1st Respondent therefore urged this Court to discountenance the totality of issue 2 distilled from grounds 3, 5, 6 and 7 of the Notice of Appeal.

Under issue 2 formulated by the 1st Respondent which relates to whether the they are entitled to the 30,000,000 Naira for trespass, counsel for the 1st Respondent argued that the Appellants in their amended statement of defence admitted to carrying out the ejection (pages 443 – 444 record of appeal) and further that the 3rd Appellant in his witness statement on oath admitted that the 1st– 3rd Appellants actually ejected the 1st Respondent from the project site. Further, counsel for the 1st Respondent argued that it was only during cross-examination that the DW2 (3rd Appellant) mentioned that it was the Development control of the FCDA that carried out the ejection on DW2’s instruction on behalf of the 1st– 3rd Appellants. Counsel for the 1st Respondent the argued that the trial Court is entitled to rely on the admission of DW2 taking into cognisance the facts and circumstances of the forceful eviction from the project site.

The 1st Respondent also argued

that the trial Court is not bound to accept or consider the evidence of the eviction by the FCDA introduced for the first time in cross-examination on the grounds that it was not pleaded and is contrary to the Appellants pleadings. Additionally, counsel argued that as to whether the FCDA acted arbitrarily, he who alleges must prove as such the burden lies on the Appellants to prove it.

Furthermore, the 1st Respondent argued that it is trite law that an employee who commits tort in the course of his employment is a joint tortfeasor. Finally, counsel argued that in light of the position of law on quantum damages, the relevant facts considered by the trial judge in assessing the quantum damage are relevant and satisfies the reasonable man test. Counsel urged the Court to resolve all the issues in favour of the 1st Respondent.

MAIN JUDGMENT
Having reviewed all the briefs of argument filed by the parties herein, I have formulated three (3) issues for the determination of this appeal and the issues are:
1. Whether the termination of the JVA (Exhibit P2) on the 29th November 2012 between the Appellants and the 2nd Respondent was validly done.

Whether Learned Trial Judge was right to have held that the Appellants were liable in trespass having found that the Joint Venture Agreement between the Appellant and the 2nd Respondent had been terminated as at the time the 1st Respondent was evicted by the FCDA.
3. Whether the eviction of the 1st Respondent by the Department of Development Control (FCDA) Abuja from the project site entitles them to 30,000,000 naira and has any nexus with the Appellants thereby imposing liability in trespass on the Appellants.

ISSUE ONE
Whether the termination of the JVA (Exhibit P2) on the 29th November, 2012 between the Appellants and the 2nd Respondent was validly done.

This issue borders on whether the termination of the JVA was validly done. The Appellants maintained that the JVA expressed the clear intention of how it should be terminated and same was accepted and consented to by the 2nd Respondent. Having argued that the Appellants submitted that the termination given to the 2nd Respondent on the 29th November, 2012 was effective, effectual and valid as it was in compliance with the dictates of the contents of Exhibit P2. While the

Respondent maintained that the Appellants could only have validly issued a notice of termination upon failure of the 2nd Respondent to remedy the said breach within 2 weeks of receipt of the notice.
Upon review of all the arguments put forth by the parties to this appeal a summary of which I have given above I am of the view that the trial judge was in fact correct. In order to understand the reasoning of the trial judge which I firmly agree with, it is pertinent to reproduce clauses 11 and 12 which respectively state that:
“11.1 The project shall be completed with a period of 24 months commencing from the date the site is formally handed over to the Developer.
11.2 Where the developer fails to complete the project within 24 months as provided herein, it shall be liable to pay 0.5 per cent of the cost of the project Owner as penalty quarterly for the default where the default continues for a period of one year thereafter and the developer has not completed the project and has not paid the penalty, the project shall be entitled to terminate the agreement.
12.1 Subject to the provisions of Article 11 above, either party may, upon

giving three (3) months notice to other party, terminate this Joint Venture Agreement; provided that if the breach is capable of being remedied, the notice shall only be given if the party in breach shall not have remedied same within two (2) weeks of receiving the written specifying the breach and requiring it to be remedied.”
It must be reiterated here that the Appellants cited a failure to comply with paragraph (c) of the recital and clauses 7.1 and 7.2 of the JVA as the basis for issuing the Notice to Terminate the JVA on the 29th November 2012 not clause 11. The trial judge (pages 1028 – 1029 of the record of appeal) therefore held that:
“First, aside from the fact that a recital does not form an operative part of the agreement but is merely a preliminary statement in a contract or deed explaining the reasons for entering into it, or the background of the transaction, or showing the existence of particular facts and it is well settled that in interpreting a deed, an unambiguous operative part cannot be controlled by the recital…it is instructive that KIPC gave notice of termination [Exhibit P11] to Wortheplus for alleged

breach of Article 7.1 and 7.2, but not for breach of Article 11. Article 7.1 enjoins the Developer to produce funds and finance the project as well as bear the cost of advertising the project and make arrangement for prospective buyer/beneficiaries of completed buildings with the consent of the project owner; whilst Article 7.2 relates to the provision and maintenance of a pick-up van by the Developer for the use of the Project Owner. To my mind, breach of Articles 7.1 and 7.2 is capable of being remedied and the intendment of Article 12.1 of the JVA is that KIPDC would first give a written notice to Wortheplus must have failed or neglected to remedy the same within two weeks of receiving the notice before KIDPC would be entitled to take appropriate steps to terminate the JVA. But since no such notice to remedy the alleged breaches was given to Wortheplus before KIPDC issued the three-month notice of intention to terminate the JVA, the JVA [Exhibit P2] cannot be said to have been validly terminated by Exhibit P11/D31.”
The trial judge (pages 1030 – 1031 of the records of appeal) further held that:

“Exhibit D37 dated 20/5/13 is letter tendered by DW2 on behalf of the 2nd– 4th Defendants, which is written by KIDPC to Wortheplus and titled “Re: Termination of Joint Venture Agreement” dated 28th July, 2011”. In Exhibit D37, which is signed jointly by Engr. Y.A. Umar and Anafi Folorunsho who were KIPDC’s General Manager and Company Secretary/Legal Adviser respectively at the time, KIPDC referred to its earlier letter of 29/11/12 [Exhibit P11/D31] giving Wortheplus a 3-month notice of intention to terminate the JVA. KIPDC equally recounted that Wortheplus honoured the invitation extended by its holding company, Harmony Holdings Ltd [3rd Defendant] “to appear before the review panel set up to investigate alleged breaches of the terms of the Joint Venture Agreement” and that “the review panel has concluded its sitting and found out that you were in breach of the following” before proceeding to itemise certain clauses of the JVA and other aspects of their contractual relationship said to have been breached by Wortheplus and wound up by stating emphatically that:
“As a result of the above, we write this letter to confirm that the

Joint Venture Agreement between Kwara Investment and Property Development Company and Wortheplus Limited dated 28th July, 2011 no longer represents the spirit and letter upon which the project was premised and can therefore no longer be operative. It is hereby terminated”…The obvious implication of the foregoing is that the JVA continued in force and remained operational well beyond initial three months’ notice of intention to terminate the JVA until, at least 20/5/13 when Exhibit D37 was made, which is about 6 months after KIPDC gave notice of its intention to terminate the JVA on 29/11/12 [as shown in Exhibit P11/D31], and over two (2) months after the forceful eviction of Oxygen from the project site on 11/3/13.”
Again I state that I am in agreement with the decision of the trial judge quoted in passages above. Indeed, clause 7.1 and 7.2 of the JVA are clauses that could have been remedied by a 2 weeks notice and not a notice of termination should have been issued to the 2nd Respondent. This I believe is the only interpretation one can give to clause 12 of the JVA. The law is trite and it is a general rule that parties to a

contract are bound by its terms. See UNION BANK OF NIGERIA LTD VS. OZIGI (1994) LPELR-3389(SC); ISHENO VS. JULIUS BERGER NIGERIA PLC (2008) LPELR-1544 (SC) and OFORISHE VS. NIGERIAN GAS CO. LTD (2017) LPELR-42766(SC).
Also in interpreting a contract the law will look at the terms of that contract. The apex Court in AFROTEC TECHNICAL SERVICES (NIGERIA) LTD VS. MIA & SONS LTD & ANOR (2000) LPELR-219(SC) in explaining what needs to be done when interpreting a written contract held that:
“The law is long settled that in interpreting the provisions of a written contract, no addition thereto or, subtraction therefrom is permissible. The words used must be given effect to and no word should be ignored in the interpretation of the intention of the parties, otherwise the Court will be seen as rewriting the agreement between the parties.”
This was affirmed in BABATUNDE & ANOR VS. BANK OF NORTH LTD & ORS (2011) LPELR-8249(SC) where it was held that:
“In the interpretation of contractual transaction Court will always hold parties bound by the terms of their agreements when construed according to the

strict, plain and common meaning of the words in the instrument as they stand.” As it relates to the termination of a contract, the Supreme Court held in WARNER & WARNER INT. VS. F.H.A. (1993)LPELR – 3471(SC)that: “before there can be an effective termination of a contract, there must be strict compliance with the conditions laid down for the termination of the contract…” It is therefore not a surprise that the trial judge came to the conclusion that the first letter of termination was not effective as it should have been a two weeks’ notice going by the interpretation of clause 12 of the JVA.

Moreover, the second letter of termination (Exhibit D37) dated 20th May, 2013 for all intents and purposes in fact represents the actual letter of termination as from the evidence before the trial Court there was an investigation carried out after the first letter of termination dated 29th July, 2012 which lead to Exhibit D37 being written on the 20th May, 2013. This investigation and the subsequent issuance of Exhibit D37 and D38 (a letter maintaining and the termination in D37) is a clear indication that the JVA continued in

operation until the issuance of Exhibit D37.

I therefore resolve this issue in favour of the Respondents against the Appellant.

ISSUE TWO
Whether Learned Trial Judge was right to have held that the Appellants were liable in trespass having found that the Joint Venture Agreement between the Appellant and the 2nd Respondent had been terminated as at the time the 1st Respondent was evicted by the FCDA.

This issue relates to trespass and whether the trial judge was right to hold that the Appellants had trespassed when he found that the Joint Venture Agreement was terminated before the date of the eviction. Before I go into my decision regarding this issue, I will first deal with the argument of the Respondent which states that this issue distilled from grounds 3, 5, 6 and 7 of the Notice of Appeal was incompetent as it was not derived from the decision of the trial Court. It is trite law that the grounds of appeal must relate to the issues raised in the judgment against which the appeal lies. A ground of appeal which does not relate to the decision of the trial Court in the judgment appealed against is incompetent and ought to be struck out.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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In MERCANTILE BANK OF NIGERIA PLC & ANOR VS. NWOBODO (2005) LPELR-1860(SC) the apex Court held:
“It is always an elementary law that grounds of appeal must of necessity arise from the judgment, ruling or decision or any pronouncement of the Court below. When a ground has not the remotest connection with what the Court below decided and which agitated the mind of the Appellant to seek for a review and overturn the decision, but he misconceived what he ought to complain against and confused himself by setting up a case not in existence, the Appellate Court would naturally throw away the incompetent appeal.”

However, after reviewing issue two, I find that it cannot be said that it does not have the remotest connection with the judgment of the Court below, all the issues complained of arise from the judgement of the trial Court as such I find that it is competent.

Now, from my decision in issue one, I have already established that the Joint Venture Agreement was terminated on the 20th May, 2013. I came to the conclusion that trial judge had construed and interpreted clause 7.1, 7.2 and 12 of the JVA correctly after a detailed

review of the facts of this case. It has also been established from the trial Court that the JVA by virtue of clause 5 allows for the 2nd Respondent to engage a subcontractor which in this case was the 1st Respondent. Having established that the JVA allows for subcontracting it goes to reason that the MOUs between the Respondents are valid. This means that the 1st Respondent was in lawful possession of the project cite when they were evicted by the Appellants and their agents on the 11th of March 2013. To further explain the JVA was terminated by virtue of the second letter of termination on the 20th May, 2013 while the 1st Respondent as I have mentioned above was evicted from the project site on the 11th of March 2013 meaning he was in fact in lawful possession of the site.

The Appellants then argued that the trial judge took and assumed two contradictory positions on the issue of validity of the JVA. The Appellants submitted that the trial judge held in one breath that:
“the JVA between KIPDC and Wortheplus dated 28/7/11 [Exhibit P2/D28] in furtherance of which Oxygen was engaged by Wortheplus as a subcontractor had not been terminated as at

11/3/13 when Oxygen was forcefully evicted from the project site, which reinforces the fact that Oxygen was in lawful possession at all material times” (page 1031 of the Records)

And in another breath he held that:
“The evidence adduced before me reveals that the JVA dated 28/7/11 between KIPDC and Wortheplus pursuant to which the MOUs were made has eventually been terminated and supplanted by a fresh Memorandum of Understanding dated 28/10/14 [Exhibit D28] between HHL Investment and Property Development Company Limited and Wortheplus Ltd; and it goes without saying that the termination of the JVA sounds the death Knell on the MoUs. It therefore seems to me obvious that neither the JVA nor the MOUs can be specifically performed.” (Page 1042 of the Records)

Certainly, from reading the words of the trial judge reproduced above, it is clear that the Appellants have in fact misinterpreted the decision of the trial judge. The trial judge did state that the JVA was “eventually terminated a supplanted by a fresh Memorandum of Understanding dated 28/10/14” however he also said that “the JVA between KIPDC and Wortheplus

dated 28/7/11 [Exhibit P2/D28] in furtherance of which Oxygen was engaged by Wortheplus as a subcontractor had not been terminated as at 11/3/13 when Oxygen was forcefully evicted from the project site.”

When one reads these two phrases contained in the trial Court’s decision, it is clear that what the trial judge meant was that although the JVA was eventually terminated it was still in force when the 1st Respondent was evicted from the project site, meaning the 1st Respondent was in lawful possession of the site when they were evicted. Now, given that they were in lawful possession of the site, the trial Court came to the right conclusion that the Appellants had trespassed. Trespass is the unjustified interference with one’s possession and enjoyment of property. See ADETONO & ANOR VS. ZENITH INTERNATIONAL BANK PLC (2011) LPELR-8237(SC); OLAGBEMIRO VS. AJAGUNGBADE III & ANOR (1990) LPELR-2554 (SC) and OMORHIRHI & ORS VS. ENATEVWERE (1988) LPELR – 2659(SC). In addition, the 3rd Appellant had in the trial Court conceded that there was no clause in the JVA which authorised KIPDC to forcefully take over the project site.

I hereby resolve this issue in favour of the Respondents against the Appellants.

ISSUE THREE
Whether the eviction of the 1st Respondent by the Department of Development Control (FCDA) Abuja from the project site entitles them to 30,000,000 naira and has any nexus with the Appellants thereby imposing liability in trespass on the Appellants.

This issue relates to whether the eviction of the 1st Respondent by the Department of Development Control (FCDA) from the project site has any nexus with the Appellants. The Appellant argued that the Department of Development Control is a government agency which conducts its investigations and confirmation unknown to the 3rd Appellant. Additionally, that nothing was placed before the Court to show that the said Agency’s activities were done arbitrarily or that the correctional act carried out was unlawful, illegal or not justified.

It is important to state here that at the trial Court the 3rd Appellant conceded to the fact that all the actions he took particularly with regard to the eviction was in his capacity as the Group Executive Manager for the 2nd Respondent and that he wrote a letter

to the Development Control that illegal activities were going on in the project site. I would like to state that the trial Court was in fact right to take these admissions into consideration in reaching its decision. In OBAWOLE & ANOR VS. COKER (1994) LPELR-2157(SC) the Supreme Court held that:
“admissions, however, against interest by persons from whom the parties to an action have derived their interest in the subject matter of the action are relevant and admissible evidence in the action.”

It is undeniable, that the complaint by the 3rd Respondent which suggested that the contract between the two parties had been terminated and illegal activities were going on in the project site is what prompted the Development Control to take action. Without that complaint the Development Control would not have come by themselves to disrupt the activities taking place within the project site. Secondly, I agree with the Respondent who argued in paragraph 4.06 of their brief of argument that the trial Court was not legally bound to admit evidence about the Development Control being the ones who ejected the 1st Respondent and not the

Appellants as not a pleaded fact gotten from cross-examination. Definitely, this is the law however the current position of the law is that when a fact is in issue or in contention, the truth of such facts can be elicited during cross examination. See FCMB VS. ROPHINE (NIG) LTD & ANOR (2017) LPELR-42704(CA).

Furthermore, there is no need for the Court to determine whether the eviction was done arbitrarily, the question which the Court is concerned with is whether the eviction of the 1st Respondent from the project site which they lawfully possessed led to trespass. In the earlier part of my judgment, I have established that the Appellants trespassed since the 1st Respondent had lawful possession of the land. Additionally, the law is elementary that he who alleges must prove as rightly argued by the Respondent. This means that the burden of proof is on the party who alleges the existence of any fact to prove it. See APENA & ANOR VS. AILERU & ANOR (2014) LPELR-23305(SC) and CHUKWUANU VS. UCHENDU & ORS (2016) LPELR-41022(CA). Finally, I will like to state that if the Appellants felt that the Development Control were liable for the

trespass, then they should have joined Development Control as a party.

The last element in this issue pertains to the award of damages to the tune of 30,000,000 naira. The Appellants argued that damages are not awarded as a matter of course, but on proven, established instance of breach of law or contract. While the Respondents submitted that trespass is actionable per se and damages are recoverable for wrongful interference or unauthorised intermeddling of possessory rights even if the Plaintiff has not suffered damage. Now, the law as it relates to damages in trespass was stated in REGISTERED TRUSTEES OF MASTER’S VESSEL MINISTRIES (NIG) INCORPORATED VS. EMENIKE & ORS (2017) LPELR-42836(CA) where the Court held that:
“The law is also clear that trespass is actionable per se and once proved, a Plaintiff is entitled to damages even without the proof of actual injury resulting from the wrongful acts constituting the trespass. A party who proves trespass is entitled without more to general damages which is quantified by relying on what would be the opinion and judgment of reasonable person in the circumstances of the case.”
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In fact, the Supreme Court in OWHONDA VS. EKPECHI (2003) LPELR-2844(SC) held that:
“a person may be granted damages for trespass and an injunctive relief even though there was no proof of ownership of the land; mere exclusive possession is enough.”
It is therefore settled law that once a person’s exclusive possessory enjoyment of their land have been infringed upon, they are entitled to be compensated naturally in law and equity. Which means that the Appellants trespassed on the project site as the 1st Respondent had lawful possession of the site. However, the Supreme Court in ONWU & ORS VS. NKA & ORS (1996) LPELR-2711(SC) also held that:
“The law is well settled that it is not enough for the Court to simply award damages in an action for trespass to land without giving any reason as to how it arrived at what amounted to reasonable damage.”

To this end the trial judge gave his reasons for arriving at the amount he did in page 1048 of the records of appeal thus:
“In the instant case, the nature of the undertaking that was disrupted by the tortuous conduct of the

2nd-4th Defendants and/or their agents i.e. the fact that the transaction was for the construction of a housing estate which is capital intensive, the economic loss occasioned to the Claimant, the conduct of the 2nd-4th Defendants (acting outside the dictates of the JVA which made no provision for forceful takeover of the project site) and the dwindling value of the naira are relevant factors to be taken into consideration in assessing the quantum of damages.”

As a result of all my findings on this issue, I hereby resolve this issue in favour of the Respondents against the Appellants.

The appeal lacks merit, and it is hereby dismissed. N50,000 cost is awarded in favour of the Respondents against the Appellants.

PETER OLABISI IGE, J.C.A.: I agree.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, MOHAMMED BABA IDRIS, JCA. I agree with the reasoning, conclusions and orders therein.

Appearances:

IKPEGBU, ESQ., with him, K. O. LAWAL, ESQ., S. L. JIMOH, ESQ., K. PELE, ESQ. and M. SULAIMAN, ESQ. For Appellant(s)

EGWUAGU, ESQ. – for 1st Respondent
E. DELE, ESQ. – for 2nd Respondent For Respondent(s)