MRS. ABOSEDE DAUDA V. LAGOS BUILDING INVESTMENT CO. LTD & 3 ORS.
(2010)LCN/4189(CA)
In The Court of Appeal of Nigeria
On Thursday, the 22nd day of April, 2010
CA/L/519/2008
RATIO
CONTRACT: MEANING OF A CONTRACT; IMPORTANCE OF MUTUALITY OF PURPOSE AND INTENTION IN FORMING A CONTRACT
A contract simply means an agreement between two or more parties which creates reciprocal legal obligation or obligations to do or not to do a particular thing. For a valid contract to be formed there must be mutuality of purpose and intention. The meeting of minds of the contracting parties is the most crucial and overriding factor or determinant in the law of contract. See Yashe v. Umar (2003) 13 NWLR (Pt 838) 465 at 483-484 paragraphs H-B; Orient Bank (Nig) Plc. v. Bilante Inter’l Ltd (1997) 8 NWLR (Pt. 515) 37 at 76. PER PAUL ADAMU GALINJE, J.C.A.
WHETHER FACTS PLEADED BY ONE PARTY AND ADMITTED BY THE OTHER PARTY REQUIRES FURTHER PROOF
…it is trite that facts pleaded by one party and admitted by the other party requires no further proof. See Nwegba v. A.G. Bendel State (1986) 1 NWLR (Pt. 16) 303; Edokpolo & Co. Ltd v. Ohenhen (1994) 7 NWLR (Pt. 358) 511; Jikantoro v. Dantoro (2004) 5 SC (pt. 11) 1. PER PAUL ADAMU GALINJE, J.C.A.
DOCTRINE OF FRUSTRATION OF A CONTRACT: OPERATION OF THE DOCTRINE OF FRUSTRATION OF CONTRACT
Under the doctrine of frustration a contract may be discharged if after its formation, events occur making its performance illegal, impossible or commercially sterile. In Taylor v. Caldwell (1863) 3B & S.826, the Defendants contracted to let the Plaintiffs have the use of a music hall on four days for giving concerts. Before the first of those days, the hall was accidentally burnt down. The Plaintiffs claimed damages, but it was held that the Defendants were discharged from their obligations by the destruction of the hall. See also Total Nig. Plc. v. Akinpelu & 1 Or. (2004) 17 NWLR (Pt. 903) 509 at page 523 paragraph D-G which was cited by the Appellant. PER PAUL ADAMU GALINJE, J.C.A.
DOCUMENTARY EVIDENCE: POSITION OF THE LAW AS TO WHETHER THE ONLY EVIDENCE ADMISSIBLE IN ANY TRANSACTION REDUCED INTO WRITING IS THE DOCUMENT CONTAINING THE TERMS OF THE TRANSACTION AND NO PARTY IS PERMITTED TO CONTRADICT THE EVIDENCE ; EXCEPTIONS TO THIS POSITION OF THE LAW
In Green Finger Agro-Ind. Ltd v. Yusuf (2003) 12 NWLR (Pt. 835) 488 at 508 paragraph H, this Court, per Salami, J.C.A. had this to say: – “In any case it is settled law that the only evidence admissible in any transaction reduced into writing is document containing the transaction and is not permissible to any party to seek to contradict such evidence, written document, like exhibit ‘1’ by oral or affidavit evidence.” See S. 132 of the Evidence Act, Galadima v. Tongu (1971) NNLR 84; Muobike v. Nwigwe (2000) 1 NWLR (Pt. 642) 620, at 636; Union Bank v. Ozizi (1994) 3 NWLR (Pt. 333) 385; Solomon v. Mogaji (1982) 11 SC 1. The only exceptions to this rule are provided under Section 132(b) and (c) of the evidence act and they are:- (a) evidence of a subsequent oral agreement which supplements the contractual terms which has been reduced into writing; and (c) evidence of a separate, oral agreement constituting a condition I precedent to the validity of the contractual terms which had been reduced into writing. PER PAUL ADAMU GALINJE, J.C.A.
WHEN IS A BREACH OF CONTRACT COMMITED
A breach of contract is committed when a party without lawful excuse fails or refuses to perform, performs defectively or incapacitates himself from performing the contract. PER PAUL ADAMU GALINJE, J.C.A.
POSITION OF THE LAW ON REMEDY FOR BREACH OF CONTRACT
A breach of contract may entitle the injured party to claim damages, specific performance or an injunction. Generally, an order of specific performance will not be readily granted where a remedy in damages is adequate. However, in a case involving sale of land, damages cannot adequately compensate a party for breach of contract for the sale of an interest in a particular piece of land or of a particular house in which case the order of specific performance is available at the instance of the vendor or purchaser. PER PAUL ADAMU GALINJE, J.C.A.
GENERAL DAMAGES: MEANING AND NATURE OF GENERAL DAMAGES
General damages are those damages which the law implies in every breach and every violation of a legal right. It is the loss which flows naturally from the Defendant’s act, and its quantum need not be pleaded or proved as it is generally presumed by law. The manner in which general damages is qualified is by relying on what could be the opinion and judgment of a reasonable person in the circumstances of the case. See Gari v. Seirafina (Nig) ltd (2008) 2 NWLR (Pt. 1070) 1 at 19 A-C; Famojiro v. Otamu (1955-56) NNLR 67; Osuji v. Isiocha (1989) 3 NWLR (Pt. 111) 623 at 636 paragraph C-D; Odulaja v. Haddad (1973) 11 S.C357 at 360. PER PAUL ADAMU GALINJE, J.C.A.
Before Their Lordships
PAUL ADAMU GALINJEJustice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWAJustice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODOJustice of The Court of Appeal of Nigeria
Between
MRS. ABOSEDE DAUDAAppellant(s)
AND
LAGOS BUILDING INVESTMENT CO. LTD & 3 ORS.Respondent(s)
PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Judgment); The appeal herein is against the decision of Candide-Johnson, J. of the Lagos State High Court, which was delivered on the 25th day of January, 2008.
The Appellant, who was the Plaintiff at the lower Court, claimed before that Court in her amended writ of summons and amended statement of claim both dated and filed on the 27th April, 2004 the following reliefs: –
“(a) An order of specific performance directing the Defendants, jointly and severally, to deliver to the Plaintiff, vacant possession of Flat SA, Block 22E at the Lekki Jubilee Housing Estate, Lagos State allocated to the plaintiff by the 2nd Defendant vide the 2nd Defendant’s letter bearing Ref. No. SR.666/DC/JHC/3 dated the 22nd day of November, 1996, within thirty days from the date of delivery of judgment in this suit failing which the Defendants shall jointly and severally, forthwith pay the sum of N3,000.000.00 to the Plaintiff.
(b) AS AN ALTERNATIVE to the relief sought in paragraph (a) above, an order directing the Defendants, jointly and severally to pay SPECIAL DAMAGES in the sum of N3,000,000.00 to the Plaintiff, being the value of the bungalow.
(c) An order directing the Defendants, jointly and severally, to pay the sum of N182,000.00 to the Plaintiff for loss of use of the bungalow.
(d) An Order directing the Defendants jointly and severally to pay the sum of N7,000,000.00 as
GENERAL DAMAGES to the Plaintiff for breach of contract.”
The 2nd, 3rd and 4th Respondents, who were Defendants at the lower Court in that order jointly had a front loaded Amended Statement of Defence dated and filed on the 8th of March, 2004. The first Respondent did not file a statement of defence. Issues were therefore joined and the case proceeded to trial. The Appellant called two witnesses to wit, Olusegun Fawora, the Appellant’s counsel that acted for her during the sale transactions and Dr. Ajayi Pasunola an Estate Surveyor and valuer. The defence called one witness in the person of Mrs. Temitope Adenike Akinbola, a lands officer attached to the 3rd Respondent. In addition, various documentary evidence were tendered and admitted. At the end of trial, parties were ordered to file written addresses, which were subsequently adopted by their respective counsel. In a reserved and considered judgment, the learned trial Judge held that the Respondents had successfully defeated the case of the Appellant who is not entitled to any of the four substantive reliefs claimed. The claims were therefore dismissed for lack of merit.
The Appellant is unhappy with the decision. Being aggrieved she has appealed to this Court. Her notice of appeal dated and filed on the 20th March, 2008 contains five grounds of appeal. Parties filed and exchanged briefs of argument. At page 2 paragraph 3.2 of the Appellant’s brief of argument, the following issues are formulated for the determination of the appeal: –
“i. Whether the lower Court was right in law to have held that the Appellant ought to have filed a reply deposition to ‘attack’ or ‘diminish’ the deposition filed by the DW 1 which was received in evidence during the trial.
ii. Whether issues were properly joined on the pleadings filed by both sides in the suit before the lower Court.
iii. Whether the testimony of the DW1 was controverted or contradicted during trial in the suit before the lower court.
iv. Whether the defence of frustration availed the 4th Respondent in the circumstances of the suit before the lower court.
v. Whether there was any new agreement between the Appellant and the 4th Respondent to pay an increased price in respect of the bungalow subject matter of the suit.”
The 2nd, 3rd, and 4th Respondents merely adopted the issues formulated by the Appellant at page 3 paragraph 3.1 of their brief of argument dated 10th November, 2008 and filed on 11th November, 2008. Appellant’s reply brief is dated and filed on the 23rd of March, 2009. Learned counsel for the parties adopted their respective briefs of argument. Mr. Rotimi Fasogbon, learned counsel for the Appellant abandoned the 3rd issue for determination, and so same and all the argument so canvassed there upon are hereby discountenanced in this judgment. Issues 1, 2, 4 and 5 are distilled from grounds 1, 2, 3 and 4 respectively. No issue is distilled from ground 5 of the grounds of appeal. Same is therefore abandoned and it is accordingly struck out.
The Appellant’s case is that, in 1995, she completed requisite formalities for the purchase of a two bedroom bungalow under the 4th Respondent’s Jubilee Housing Scheme. She paid a total sum of N353,500.00 being the purchase price of the bungalow and the perfection of her title thereto.
The 2nd Respondent, a ministry in charge of housing matters, confirmed the payment of the said N353,500.00 and allocated a two bedroom bungalow through Exhibits ‘F and F1′ within Lekki under the said Jubilee Housing Scheme to the Appellant. Subsequent efforts by the Appellant to take possession of the said bungalow from the 2nd – 4th Respondents failed. Upon this failure to deliver possession of the said bungalow to the Appellant, the Appellant took out a writ and a statement of claim against the Respondents in this appeal.
The 2nd, 3rd and 4th Respondents admitted that the Appellant was of those interested Applicants who applied for a Jubilee house within the Ikeja division and paid a total sum of N353,500.00. However, the Respondents contention is that the Appellant failed to pay the additional sum as agreed by all depositors at the meeting held with the then Military Administrator, Brigadier-General Buba Marwa. So when the Jubilee Housing project was completed by the civilian administration of Asiwaju Bola Ahmed Tinubu, only those who paid the additional sum were allocated with houses.
Having read through the grounds of appeal and the submissions of both parties, I am of the firm view that the only issue calling for the determination of this appeal is whether the learned trial Judge properly assessed the evidence adduced before him and correctly ascribed probative value to such evidence.
From the evidence available before the lower Court, both parties agreed that the Appellant and the Respondents did enter into a contract for sale of a two bedroom bungalow at the sum of N353,500.00. At paragraphs 8, 9 and 10 of the amended statement of claim, at page 29 of the printed record, the Appellants’ averments read as follows: –
“8. The plaintiff paid a total sum of N353,500.00 to the 4th Defendant, through the 1st Defendant which sum represented the purchase price of the said bungalow and survey, legal registration stamp duty and conveyance fees pertaining to the bungalow. The Plaintiff will, at the trial of this suit, rely on the 4th Defendant’s official receipts Nos. K160282 dated 4/9/95 for N20,000.00, K160858 dated 22/11/95 for N130,000.00, K161564 dated 11/1/96 for N200,000.00 and K161204 dated 29/1/96 for N3,500.00 issued by the 4th Defendant, through the 1st Defendant in respect of the said N353,500.00.
9. By a letter dated 22/11/96, to the plaintiff, the 2nd Defendant confirmed that the plaintiff had paid the said N353,500.00. The plaintiff will at the trial of this suit, rely on the said letter.
10. By another letter also dated 22/11/96, to the plaintiff, the 2nd Defendant formerly allocated Flat 5A, Block 22E at the Lekki Jubilee Housing Estate (hereinafter referred to as ‘the bungalow’) to the plaintiff. The plaintiff will, at the trial of this suit rely on the said letter.”
At paragraph 7 of the amended statement of defence, which is found at page 16 of the record, the Respondents admitted paragraphs 8, 9 and 10 of the amended statement of defence in the following words: –
‘7. The defendants admit paragraphs 8, 9, 10, of the statement of claim only to the extent that the plaintiff paid a total sum of N353,500.00 for the purpose of being allocated a flat within the Jubilee Housing Estate in Ikeja Division’.
The averments at paragraphs 8, 9 and 10 of the amended statement of claim and the admission by the 2nd, 3rd and 4th Respondents at paragraph 7 of the amended statement of defence clearly show that there was a form of contract between the Appellant and the Respondents and the amount paid by the Appellant in the process amounted to consideration. A contract simply means an agreement between two or more parties which creates reciprocal legal obligation or obligations to do or not to do a particular thing. For a valid contract to be formed there must be mutuality of purpose and intention. The meeting of minds of the contracting parties is the most crucial and overriding factor or determinant in the law of contract. See Yashe v. Umar (2003) 13 NWLR (Pt 838) 465 at 483-484 paragraphs H-B; Orient Bank (Nig) Plc. v. Bilante Inter’l Ltd (1997) 8 NWLR (Pt. 515) 37 at 76.
In the instant case the Appellant, as a result of the advertisement for sale of houses by the Respondents, applied for and received a form for the purchase of a two bedroom bungalow from the Respondents. After having completed the form and from the time the 4th Respondent accepted the form and the payment, the contract became consummated and the parties thereto are bound by the terms of the said contract.
It must be noted here that the Respondents having clearly admitted that the Appellant had paid for its house as advertised, no further proof in that respect is required. For it is trite that facts pleaded by one party and admitted by the other party requires no further proof. See Nwegba v. A.G. Bendel State (1986) 1 NWLR (Pt. 16) 303; Edokpolo & Co. Ltd v. Ohenhen (1994) 7 NWLR (Pt. 358) 511; Jikantoro v. Dantoro (2004) 5 SC (pt. 11) 1.
I therefore have no doubt that there was a valid contract of sale of a two bedroom bungalow to the Appellant, by the 1st, 2nd and 3rd Respondent, and so I hold.
The 2nd, 3rd and 4th Respondents justified their refusal to honour the contract on the following grounds: –
‘1. That the Jubilee housing project which was conceived by Governor Otedola was frustrated because that government was overthrown by the military in a Coup D’etat in 1993.
2. That the Appellant did not pay the increased amount as communicated to him by the Respondents.
3. That the Appellant’s application for a house was not for Jubilee Housing Estate lekki, but for Jubilee Housing Estate Ikeja and that the allocation of a house at lekki was purely a mistake on the part of the Respondents.’
The learned trial Judge in his judgment said:
“I hold therefore that there is no sufficient or any answer by way of pleading nor by way of testimony to the material facts and testimony thereon by DW1 and I hold that DW1’s testimony is uncontroverted and uncontradicted to the extent. The Cross-Examination of DW1 really could not and did not remedy this fundamental defect. In any event, I hold that the Cross-Examination did not shake nor diminish the very substance of DW1’s testimony (supra). On this line of reasoning I agree with and uphold the legal submission of defence counsel that DW1’s testimony supports the relevance of the doctrine of frustration to the impediment visited on the Jubilee Housing Scheme by the Coup D’etat of 1993. I also uphold the uncontroverted and uncontradicted DW1 testimony of a new Agreement for completion of the Jubilee Scheme on the condition of payment of increased purchase prices, which payment the claimant herein failed, neglected and/or refused to pay in breach of the new agreement unlike other affected allotees who complied.”
New, a careful perusal of the evidence before the Court clearly shows that the coup that toppled the administration of Otedola took place in 1993. The Respondents did not produce any evidence to show that the soldiers that took over power in Lagos State dissolved the 1st – 4th Respondents herein and Jubilee Housing Project that was started during Otedola’s administration. Instead, there is evidence that the project was pursued with much vigour and indeed the Appellant’s application for allocation of the two bedroom apartment was made on the 7th of November, 1995. There is therefore no way that the subsequent allocation to her could have been frustrated by the coup d’ etat of 1993. The averments at paragraphs 3, 4, 5 and 6 of the amended statement of defence painted a picture that the Appellant purchased the application form on which she applied for the allocation of the apartment during the administration of Michael Otedola in Lagos. For the avoidance of doubt, the paragraphs are hereunder reproduced as follows: –
3. The defendants aver that sometimes between 1990 and 1991 the administration of Sir Michael Otedola as Governor of Lagos State initiated the construction of housing estates tagged Jubilee Housing Scheme in the State.
4. The defendants aver that the project could not be completed by the Sir Michael Otedola’s administration as the administration’s life span was cut short by the 1993 Military Coup.
5. While that administration lasted, necessary application forms were issued out for interest people to apply for Jubilee Houses, which was to be sighted in different parts of the five Divisions of Lagos State, i.e. Lagos Island, Ikorodu, Ikeja, Badagry and Epe.
6. The defendants aver that the plaintiff responded to the defendants’ advert, filed necessary application form and indicated her preference for Jubilee Houses within the Ikeja Division.
Paragraphs 5, 6 indicates that it was while the administration of Otedola lasted application forms were issued out and the Appellant responded. Exhibit ‘C’, the Application Form was completed in 1995, about two years after the administration of Otedola was toppled. The averments therefore are false and did not deserve any further reply by the Appellant. The burden of prove that there was a valid contract between the Appellant and the Respondents was on the Appellant, and she clearly established her case through Exhibits ‘B, C, 0, E, E1, E2, E3, F and F1’. I therefore agree with the learned counsel for the Appellant that for the doctrine of frustration to apply to a contract, the intervening frustrating event must occur after the contract has been entered into. Under the doctrine of frustration a contract may be discharged if after its formation, events occur making its performance illegal, impossible or commercially sterile. In Taylor v. Caldwell (1863) 3B & S.826, the Defendants contracted to let the Plaintiffs have the use of a music hall on four days for giving concerts. Before the first of those days, the hall was accidentally burnt down. The Plaintiffs claimed damages, but it was held that the Defendants were discharged from their obligations by the destruction of the hall. See also Total Nig. Plc. v. Akinpelu & 1 Or. (2004) 17 NWLR (Pt. 903) 509 at page 523 paragraph D-G which was cited by the Appellant.
It is therefore my firm view that the contract between the parties was not frustrated by the coup of 1993, as at that date the parties had not entered into any contract.
On the question of reappraisal of the contract, by asking the Appellant to pay extra money by the Respondents, such increase even though not one of the conditions set out in exhibits ‘F and F1’ which were letters of allocation of a Jubilee House and confirmation of allocation of Jubilee House, such variation must be communicated in writing, in the same way the contract was entered into. In Goss v. Nugent (1833) 5 B and Add. 58 a written contract for the sale of land bound the vendor to make good title. The purchaser said orally that he would not insist on good title being made to one part of the land. He was not bound by this statement and could therefore, when the vendor sued for the price, raise the defence that good title to the whole had not been made.
In Green Finger Agro-Ind. Ltd v. Yusuf (2003) 12 NWLR (Pt. 835) 488 at 508 paragraph H, this Court, per Salami, J.C.A. had this to say: –
“In any case it is settled law that the only evidence admissible in any transaction reduced into writing is document containing the transaction and is not permissible to any party to seek to contradict such evidence, written document, like exhibit ‘1’ by oral or affidavit evidence.”
See S. 132 of the Evidence Act, Galadima v. Tongu (1971) NNLR 84; Muobike v. Nwigwe (2000) 1 NWLR (Pt. 642) 620, at 636; Union Bank v. Ozizi (1994) 3 NWLR (Pt. 333) 385; Solomon v. Mogaji (1982) 11 SC 1.
The only exceptions to this rule are provided under Section 132(b) and (c) of the evidence act and they are:-
(a) evidence of a subsequent oral agreement which supplements the contractual terms which has been reduced into writing; and
(c) evidence of a separate, oral agreement constituting a condition I precedent to the validity of the contractual terms which had been reduced into writing.
In the instant case, the Respondent failed to introduce in evidence any oral agreement which was reduced into writing. The statement of defence alone is not sufficient to establish that there was an oral agreement between the Applicants who sought to buy Jubilee Houses and the Respondents. In absence of any proof of such agreement, existence of the agreement aforesaid only exists in the imagination of the Respondents.
As for the location of the apartment which the Appellant sought to buy, the Respondents have admitted that it was a unilateral mistake of the Respondents to have allocated the house at Lekki to the Appellant instead of a house at Ikeja. This admission is made at paragraph 9 of the Amended Statement of Defence and I so reproduce it below as follows: –
“The defendants admit paragraph 10 of the statement of claim but aver that the purported allocation of a jubilee flat to the plaintiff at Lekki Jubilee Housing Estate was a unilateral mistake of the Defendants and as at that time the proposed houses in Lekki had not being commenced and the proposed selling price was not the amount paid by the plaintiff.”
The mistake of the Respondents cannot be used to justify the failure of the Respondents from honouring the agreement they entered into with the Appellant.
I find in this judgment that the Respondents are in breach of the contract they entered into with the Appellant. Whatever mistake they made in the allocation, they are in a position to correct such mistake. A breach of contract is committed when a party without lawful excuse fails or refuses to perform, performs defectively or incapacitates himself from performing the contract.
In the instant case the Respondents failed to deliver possession of a two bedroom bungalow which they allocated to the Appellant for no just cause. This is more so where the Respondents’ offer was duly accepted by the Appellant and consideration passed in the process. What then is the remedy for a breach of contract? A breach of contract may entitle the injured party to claim damages, specific performance or an injunction. Generally, an order of specific performance will not be readily granted where a remedy in damages is adequate. However, in a case involving sale of land, damages cannot adequately compensate a party for breach of contract for the sale of an interest in a particular piece of land or of a particular house in which case the order of specific performance is available at the instance of the vendor or purchaser. In the instant case it was not in dispute that the Appellant paid N353,500.00 being full payment for a two bedroom bungalow.
I am therefore of the firm view that, the Appellant is entitled to a decree of specific performance of the sale of the property in question. Apart from bare denial of paragraph 26 of the statement of claim by the Respondents, no evidence was produced to counter the valuation report dated 11th October, 2002 which is exhibit ‘k’ in the case. It is therefore my view that the value of the property which was allocated to the Appellant is as indicated in exhibit ‘k’ which is N3,000.000.00. Where it becomes practically impossible to specifically perform the terms of the contract by delivering up possession of the property aforesaid, the Appellant shall be entitled to N3,000,000.00 being the corresponding value of the property.
The claim of N182,000.00 has not been proved. The Appellant did not give evidence of the rents chargeable on similar properties in the same area within the period the allocation was made and the judgment. The principle that damages are compensatory naturally gives rise to the question: for what is it that the victim of a breach of contract is entitled to be compensated? The basic object of damages for breach of contract is to put the Plaintiff, so far as money can do it in the same situation as if the contract had been performed. This cannot be done unless there is sufficient proof of what should have been earned had the contract been performed. Having failed to prove this claim, same is refused and dismissed.
Now the last claim is for N7,000,000.00 general damages. The action for general damages is always available as of right when a contract has been broken. General damages are those damages which the law implies in every breach and every violation of a legal right. It is the loss which flows naturally from the Defendant’s act, and its quantum need not be pleaded or proved as it is generally presumed by law. The manner in which general damages is qualified is by relying on what could be the opinion and judgment of a reasonable person in the circumstances of the case. See Gari v. Seirafina (Nig) ltd (2008) 2 NWLR (Pt. 1070) 1 at 19 A-C; Famojiro v. Otamu (1955-56) NNLR 67; Osuji v. Isiocha (1989) 3 NWLR (Pt. 111) 623 at 636 paragraph C-D; Odulaja v. Haddad (1973) 11 S.C357 at 360.
From the history of this case, it is only reasonable that the Appellant should be entitle to general damages. This is so because if the contract had been performed, the rent payable by the Appellant on another property would have been curtailed.
Now therefore, I find merit in this appeal, which I allow. The decision of the lower Court is hereby set aside and quashed.
As a result I make the following orders:-
1. The 2nd, 3rd and 4th Respondents are jointly and severally ordered to deliver to the Plaintiff, vacant possession of Flat SA, Block 22E at the Lekki Jubilee Housing Estate, Lagos State allocated to the Appellant by the 2nd Defendant vide the 2nd Defendant’s letter bearing Ref. No. SR. 666/DC/JHC/3 dated the 22nd day of November, 1996, within 30 days from today.
2. Where it becomes practically impossible to specifically perform the terms of the contract by delivering up possession of the property aforesaid, the Appellant shall be entitled to N3,000.000.00 being the corresponding value of the property.
3. The Respondents shall pay general damages to the Appellant which I assess at N2,000,000.00 (Two Million Naira).
4. The Appellant is entitled to the cost of this appeal which I assess at N30,000.00.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: My learned brother, Galinje, J.C.A., had obliged me with a copy of the draft of the lead judgment prepared and just delivered by him. Having read before now, the said lead judgment, I cannot but concur with the reasoning and conclusion reached therein, to the effect that the appeal has merit.
Consequently, I hereby allow the appeal, and set aside the decision of the court below, dated 25/01/08.
I abide by all the consequential orders therein, including the order of N30,000.00 as to costs, awarded in favour of the Appellant.
REGINA OBIAGELI NWODO, J.C.A.: I have been privileged to read in draft the Judgment of my learned brother, Galinje J.C.A. just delivered. I agree with the reasonings therein and the conclusion arrived thereat that this appeal has merit.
The Appeal succeeds and I abide by all the consequential orders therein inclusive of cost.
Appearances
Mr. R. A. Fasogbon;
Miss. B. AkingunolaFor Appellant
AND
Miss. T. A. OlorunnisomoFor Respondent
