THEODORE EMMANUEL CHARLES OWOO & ORS V. MRS UMO ASUQUO EDET
(2011)LCN/4413(CA)
In The Court of Appeal of Nigeria
On Friday, the 25th day of March, 2011
CA/C/39/2010
RATIO
AGREEMENT/CONTRACT: MEANING OF AN AGREEMENT OR CONTRACT
An agreement, (better known in law as a contract), means a mutual understanding between two or more persons, about their relative rights and obligations regarding their past or future performances. A contract is an agreement between two or more parties creating, obligations that are enforceable or otherwise recognizable in law, (Black Law Dictionary 8th Edition page 74 and 341). PER ISAIAH OLUFEMI AKEJU, J.C.A.
CONTRACT: WHAT ARE THE INGREDIENTS OF A VALID CONTRACT; ON WHOM RESTS THE BURDEN OF PROVING THE EXISTENCE OF A TERM OF AN AGREEMENT
To be valid and binding, a contract must have the following as its ingredients or elements. There must be a definite offer which has been unconditionally or unequivocally accepted. consideration must have been furnished and the parties who have capacity to enter into such a contract must have intended to create a legal relationship, See Union Bank of Nigeria Ltd. vs. sax Nigeria (1994) 8 NWLR (Pt. 361) 150. There is another important and fundamental element of mutuality or meeting of the mind otherwise called consensus ad idem. In Olanlege vs. Afro Continental Nig. Ltd. (1996) 7 NWLR (Pt. 458) 29 at 46, it was stated by Iguh JSC that: “One of the fundamental principles of the law of contract is that the parties must reach a consensus ad idem in respect of the terms thereof otherwise the terms cannot be regarded as legally binding and enforceable.The burden of proof of the existence of terms of an agreement squarely rests on the party asserting such a term. It is a clear matter of evidence which has to be established by the party who asserts it. Failure to establish a vital term of a contract where its existence is a condition sine qua non towards the successful prosecution of a suit upon which the contract is founded renders such a suit subject to dismissal.” PER ISAIAH OLUFEMI AKEJU, J.C.A.
AGREEMENT FOR A LEASE: WHAT ARE THE REQUIREMENTS OF A VALID AGREEMENT FOR LEASE
The requirements of a valid lease have been well stated through various judicial decisions. In international ile Industries (Nig.) Ltd. vs. Aderemin (1999) 6 SC (pt. 1), Iguh JSC stated the ingredients of a valid agreement for a lease at page 32 as follows: “Now the law is well settled that in order to establish the existence of a valid agreement for a lease, there must be definite understanding in respect of not only the parties to the lease, the property involved, the rent payable, the length of the term but also the date of its commencement. These comprise of the essentials or the so called certainties that must be established before a valid agreement for a lease may be said to have been concluded. See Harvey vs. Pratt (1963) 2 All ER 786 at 788; U.B.A. Ltd. vs. Tejumola and Sons Ltd. (1988) 2 NWLR (Pt. 79) 662 etc” See also B. M. N. L. vs. Ilemobola Ltd. (2007) All FWLR (Pt. 379) 340 Nlewedum vs. Uduma (1995) 6 NWLR (Pt 402) 383. In odutola vs. Papersack (Nig.) Ltd. (2007)All FWLR (Pt. 350) 1214 the following were stated as basic requirements for a valid agreement for a lease: 1. The words of demise 2. The agreement must be complete 3. The lessor and the lessee must be clearly identified 4. The premises and dimensions of the property to be leased must be stated clearly 5. The commencement and duration of the terms of the lease must also be clearly stated’ PER ISAIAH OLUFEMI AKEJU, J.C.A.
CONTRACT: CONDITIONS THAT MUST BE MET BEFORE A CONTRACT CAN BE SAID TO EXIST; THE DUTY OF THE COURT WITH RESPECT TO AN AGREEMENT
The contract is that of the parties and they have to reach a consensus on all the essential elements before one can be said to exist. The role of the court is to give effect to the agreements of the parties. The court cannot make agreement for them or even impose one on them. See: owoniboys Technical services Ltd. vs. U.B.N. Ltd. (2003) 15 NWLR (pt. 844) 545; S. E. Co. Ltd. vs. N.B.T.C. (2006) 7 NWLR (pt. 978) 201; African Reinsurance Corporation vs. Fanlay (1986) 1 NWLR (pt. 14) 113. PER ISAIAH OLUFEMI AKEJU, J.C.A.
INTERPRETATION OF STATUTE: INTERPRETATION OF THE PROVISIONS OF SECTIONS 75 AND 76 OF THE LAW OF PROPERTY LAW OF CROSS RIVER STATE, 2004 AS TO HOW TRANSFERS OF LAND OR ANY INTEREST THEREIN SHOULD BE MADE
By the provisions of section 75 of the Law of Property Law of cross River state, 2004, all transfers of land or any interest therein aimed at transferring legal interest are void unless created by a deed. section 76 of the same law forbids the creation of interest or disposal of interest in land by parol, it must be done in writing signed by the parties. In the absence of any written agreement, the parties could only create an equitable interest. Again section 77 (1) of the same Law provides that: “Notwithstanding any consideration given having been for the same such interest created by parol has the force and effect on interests at will only.” PER ISAIAH OLUFEMI AKEJU, J.C.A.
ERROR IN JUDGMENT: WHETHER IT IS EVERY OF THE THE LOWER COURT THAT WILL VITIATE THE JUDGMENT OR RESULT IN AN APPEAL BEING ALLOWED
…it is not every error, slip, comment or even omission of the lower court that will vitiate the judgment or result in an appeal being allowed. It is only where the error is substantial to occasion a miscarriage of justice that it may warrant interference by the appellate court. See Kraus Thompson organisations Limited vs. University of calabar (2004) All FWLR (pt. 209) 1148; Onajobi vs. Olanipekun (1985) 4 SC (pt. II) 156; Owhonda vs. Ekpechi (2003) FWLR (Pt. 181) 1565. PER ISAIAH OLUFEMI AKEJU, J.C.A.
AWARD OF DAMAGES: PURPOSE OF AWARDING DAMAGES
The award of damages is basically to compensate the claimant for the loss suffered as a result of the wrong done by the opposing party. PER ISAIAH OLUFEMI AKEJU, J.C.A.
JUSTICES
JAFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
1. THEODORE EMMANUEL CHARLES OWOO (For himself and as the Administrator of the Estate of Late Emmanuel Charles Dannet Owoo)
2. ARCHTBONG EMMANUEL CHARLES OWOO
3. CHARLES EMMANI’EL CHARLES OWOO
4. JOSEPH EMMANUEL CHARLES OWOO Appellant(s)
AND
MRS UMO ASUQUO EDET Respondent(s)
ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): The Respondent to this appeal was the plaintiff in Suit No. HC/54/2007, an action she instituted against the Appellants at the Calabar Division of the High Court of Cross River State holden at Calabar through the Writ of summons and Statement of Claim filed on 6th February, 2007. She claimed the following reliefs in paragraph 24 of the Statement of Claim:
“1. The sum of six million, five hundred and thirty seven thousand, nine hundred and fifty naira (N6, 537, 950.00) only being special damages suffered by the plaintiff on account of the defendants misrepresentations and/or breach of a contract to lease the defendants’ land at No. 71, Target Road, Calabar to the plaintiff to build and occupy as a tenant until the expiration of her rents.
In the Alternative
A Declaration that the plaintiff is entitled either by herself, agents or privies to the quiet and peaceful enjoyment, use and occupation of the property situated at No. 71, Target Road, Calabar until the expiration of her rent on 31st March, 2042 with out any interference, harassment or disturbance from the defendants, their servants, agents or privies.
2. Ten million naira being general damages for the various acts of trespass committed by the defendants at the property and premises situated at No.71 Target Road, Calabar while it was in the lawful possession of the plaintiff.
3. An order of perpetual injunction restraining the defendants by themselves, their servants, agents or privies from committing further acts of trespass or interference in the said property until the expiration and/or lawful determination of the plaintiff’s lease of the said premises.”
The plaintiff later in the proceedings abandoned the alternative claim in relief no. 1 as well as the relief no. 3 for a declaration and perpetual injunction respectively. The plaintiff was then left with reliefs 1 and 2 for N6, 537, 950.00 special damages and N10, 000, 000.00 general damages. See Page 97 of the record.
The Appellants as defendants denied the claim of the Respondent through their Statement of Defence/Counter Claim filed on 4th May 2007 wherein they claimed the following by way of counter claim against the Respondent:
1. An order that the Defendants against the plaintiff are entitled as 10% interest per annum on the unpaid rents or alternatively the profit, from October 2005 until the total sum final paid.
2. An order for the building at No. 71, Target Road, Calabar to be demolished as same without the approval authority o. consent of the Defendants and as it now poses, a danger to the Defendants.
3. General damages N10, 000, 000.00 (ten million for trespass on Defendants, property at No. 71 Target Road, Calabar from October 2005.
4. Special damages for the consequential loss caused to the Defendants by the plaintiff’s trespass on No. 71 Target Road calabar and being unpaid rent due from the plaintiff for the use of occupation of the said No. 71 Target Road from October 2005.
PARTICULARS OF SPECIAL DAMAGE
(a) For the period October 2005 – September 2006 at the annual rent value of N780, 000.00.
(b) For the period of October 2006 up to judgment at the annual rent value of N780, 000.00″
The Parties expressed respective positions through their respective pleadings. I note that by paragraph 6 of their Statement of Defence and Counter Claim, the Appellants expressly admitted the averments in paragraphs 7, 8, 12, 13, 14, 15, 16, 17 and 18 of Respondent’s Statement of Claim. The facts in those paragraphs thus became settled upon the pleadings as admitted facts which require no further proof by the Respondent in line with section 75 of Evidence Act. It is settled that facts admitted do not require to be proved further. See Olagunju vs. Oyeniran (1996) 6 NWLR (Pt. 453) 127; Agbanelo vs. Union Bank of Nigeria Ltd. (2004) 4 SC (Pt. 1) 233; Akpan vs. Umoh (1999) 7 SC (Pt. II) 13; Asafa Foods vs. Alraine Ltd. (2002) 5 SCNJ 53
It was therefore not disputed that the Appellants had a parcel of land at Target Road, by Asi Eta Street, Calabar comprising their family house at No. 1A Asi Eta Street, Calabar and a plot of land at No. 71, Target Road, calabar which was originally owned by their deceased father.
The Respondent who operated Restaurant orally approached the Appellants for the lease No. 71, Target Road calabar to construct a structure on that land for her business. The cost of construction was to be borne by the Respondent who would occupy as appellants’ tenant but utilizing the amount expended on the structure as the rent until such sum would have been exhausted. They agreed that a written agreement was to be prepared by the appellants, solicitors. The land to be used was marked and the 1st appellant collected N750, 000.00 from the respondent for the construction of a demarcating wall to clearly separate the area to be used.
The construction of fence was embarked upon by the 1st appellant but was later abandoned by him. Although not expressly admitted by the appellants, the evidence of the Respondent and that of the DW2, Ekpe Ita Nyong show that a design of the building to be constructed on the land was prepared with the concurrence of both parties while the Respondent submitted an estimate of the building. Both were admitted as exhibits 1 and 2 respectively. The Respondent stated this in evidence at page 91 of the record:
“After Exhibit I was given to me, I sent it to defendants who accepted it. Defendants retained one Ekpe Nyong to work with my Architect and produced the cost of constructing the building on Exhibit 1. They produced a cost estimate. This is the estimate. My construction expenditure was to be advance rents at the rate of N180, 000.00 per year.”
The Respondent called two witnesses, Archibong John Udoh and Lawrence Effiom Etim who had filed written statements on oath, while Theodore Charles Owoo, the 1st Appellant and Ekpe Ita Nyong who also made written statements on oath testified for the defence.
In the judgment delivered on 25th May, 2009, the learned trial judge concluded as follows at page 120 of the record:
“For all I have said above, I can come to the conclusion that the claimant has established the oral tenancy agreement she had with the defendants. She had also established the terms of the agreement. I believe that the defendants encouraged the claimant to build on the land to forestall Government recovering the land from the defendants. I also believe that the 1st defendant supervised the job from pegging to completion as stated by the claimant. I will now proceed to determine the cost of constructing the building.”
The Learned Trial Judge thereafter determined the cost of the building and entered judgment against the Appellants jointly and severally in the sum of N6, 537, 950.00 made up of N789, 000.00 cost of labour; N750, 000.00 as money for construction of fence, and N4, 999,950.00 as cost of materials. Another N2, 000, 000.00 was awarded against the Appellants as general damages on the ground that:
“The trespassory acts of the defendants did not only disturb the claimant, it disturbed her business on the building for which business the building was constructed.”
The Counter claim of the Appellants was dismissed.
Being dissatisfied, the Appellants on 5th August, 2009 filed Notice and Grounds of Appeal containing four grounds and from which they distilled the following three issues for determination in the Appellants’ Brief of Argument settled by Charles E. Duke Esq.:
“1. Whether the Learned Trial Judge was not wrong when he held that an oral tenancy agreement existed between the Appellants and the Respondent (Grounds 1 and 3).
2. Whether the Learned Trial Judge was correct to have attributed to the 1st Appellant evidence he did not give (Ground 2).
3. Whether the Learned Trial Judge was not wrong in awarding the sum of N2.000, 000.00 (two million naira) as damages for trespass, (Ground 4).”
In the Respondent’s Brief of Argument Essien H. Andrew of counsel formulated two issues for determination as follows:
“1. Whether on the preponderance of evidence the learned trial judge was right to hold that the parties in this case had an oral agreement to build and then lease the property in dispute (issues 1 and 2).
2. Whether in the circumstances of this case the learned trial judge was right to award the respondent N2 million as general damages for trespass (issue 3).
The case of Odutola vs. Papersack (Nig) Ltd. (2006) 18 NWLR (Pt. 1012) 470; 2007 All FWLR (Pt. 350) 1214 was cited and relied upon by the two learned counsel in support of their respective arguments on the merit or otherwise of the appeal especially on issue no. 1 raised by the appellants.
For the appellants it was argued that the evidence at the hearing did not positively establish an oral lease agreement, the burden of which is on the plaintiff to prove by virtue of Sections 135, 136 and 139 of the Evidence Act LFN 2004 but which the plaintiff failed to discharge. The Appellants’ learned counsel submitted that the oral agreement of the parties did not satisfy the requirement of a valid lease and the learned trial judge could not guess or speculate on the content of the oral tenancy agreement. He submitted also, relying on Chief Olowofoyeku vs. The Attorney General of Oyo State (1990) 2 NWLR (Pt. 132) 369 that where an agreement is intended to be made by several person jointly if any of those persons failed to enter into the agreement, there is no contract.
The learned counsel for the Respondent submitted that there was an oral lease and tenancy agreement between the parties and the learned trial judge was right to so hold by following the decision in Odutola vs. Papersack Nig. Ltd. (supra).
The learned counsel argued that the there was an oral agreement which showed the parties thereto as the present appellants and respondent and which showed a demise of land with a defined dimension while an annual rent of N180, 000.00 was agreed upon for the occupation of the building which the respondent was to construct and occupy as a tenant. The rent was to start from the completion of the building until she would have exhausted the lost of the building as the annual rent. He argued that though commencement and terminal dates were not expressly stipulated, there was agreement as to how they would be determined, and that agreement was therefore valid and in line with the decision in Okechukwu vs. Onuorah (2001) FWLR (Pt. 33) 219; Brossette Manufacturing Nig. Ltd. vs. Ilemobola LTD. (2007) All FWLR (Pt. 379) 1340.
An agreement, (better known in law as a contract), means a mutual understanding between two or more persons, about their relative rights and obligations regarding their past or future performances. A contract is an agreement between two or more parties creating, obligations that are enforceable or otherwise recognizable in law, (Black Law Dictionary 8th Edition page 74 and 341).
To be valid and binding, a contract must have the following as its ingredients or elements. There must be a definite offer which has been unconditionally or unequivocally accepted. consideration must have been furnished and the parties who have capacity to enter into such a contract must have intended to create a legal relationship, See Union Bank of Nigeria Ltd. vs. sax Nigeria (1994) 8 NWLR (Pt. 361) 150.
There is another important and fundamental element of mutuality or meeting of the mind otherwise called consensus ad idem. In Olanlege vs. Afro Continental Nig. Ltd. (1996) 7 NWLR (Pt. 458) 29 at 46, it was stated by Iguh JSC that:
“One of the fundamental principles of the law of contract is that the parties must reach a consensus ad idem in respect of the terms thereof otherwise the terms cannot be regarded as legally binding and enforceable.The burden of proof of the existence of terms of an agreement squarely rests on the party asserting such a term. It is a clear matter of evidence which has to be established by the party who asserts it. Failure to establish a vital term of a contract where its existence is a condition sine qua non towards the successful prosecution of a suit upon which the contract is founded renders such a suit subject to dismissal.”
The requirements of a valid lease have been well stated through various judicial decisions. In international ile Industries (Nig.) Ltd. vs. Aderemin (1999) 6 SC (pt. 1), Iguh JSC stated the ingredients of a valid agreement for a lease at page 32 as follows:
“Now the law is well settled that in order to establish the existence of a valid agreement for a lease, there must be definite understanding in respect of not only the parties to the lease, the property involved, the rent payable, the length of the term but also the date of its commencement. These comprise of the essentials or the so called certainties that must be established before a valid agreement for a lease may be said to have been concluded. See Harvey vs. Pratt (1963) 2 All ER 786 at 788; U.B.A. Ltd. vs. Tejumola and Sons Ltd. (1988) 2 NWLR (Pt. 79) 662 etc”
See also B. M. N. L. vs. Ilemobola Ltd. (2007) All FWLR (Pt. 379) 340 Nlewedum vs. Uduma (1995) 6 NWLR (Pt 402) 383.
In odutola vs. Papersack (Nig.) Ltd. (2007)All FWLR (Pt. 350) 1214 the following were stated as basic requirements for a valid agreement for a lease:
1. The words of demise
2. The agreement must be complete
3. The lessor and the lessee must be clearly identified
4. The premises and dimensions of the property to be leased must be stated clearly
5. The commencement and duration of the terms of the lease must also be clearly stated’
Meanwhile in the instant case the Respondent eventually constructed a building but not in line with Exhibits 1 and 2 which the parties earlier agreed upon. The Respondent stated in evidence that the construction of a different structure was due to alterations or suggestions made by the appellants but there was no document shown to court to support this assertion that exhibits 1 and 2 were altered and agreed upon. Also the Respondent said she completed the commissioned in building and it was November, 2005, she did not submit any estimate thereof to the appellants until after the construction when Appellants demanded for it. Then she submitted a total of N6, 537, 430.00. The appellants cried foul. They asked for N790, 000.00 as annual rent for the building and for part of their land the respondent allegedly entered unto without their consent in the course of the construction.
Thus there was clearly no mutuality or consensus of the parties on the value of the type and of the building the respondent erected on the building. This value of the Land was what should dictate the ingredients of the rent payable by the respondent, the commencement of the lease as we, as its terminal date or simply the duration of the lease. There were also no covenants or mode of termination of the lease.
The learned trial judge set out the requirements stated in odutola vs. papersack (supra) before him and found answers to each of them and ended up accepting the sum of N6,537,430 presented by the Respondent through Exhibits 11 (1-38) tendered by the pW3. He also found that the rent would be N180, 000.00 per annum. I think it will be right for me to say that it was not smooth sailing for the learned judge who resorted to various questions and answers before he landed. That was not all, in the course of the proceeding the learned trial judge himself had been involved in the effort to have a true value for the property and the record shows this at the proceedings of 20th June, 2008 and 8th Jury, 2009 on pages 98 and 99 respectively.
At page 98 he said:
“Both Counsels (sic) agree to meet and appoint a quantity surveyor to value the building constructed on the land as that is the only issue between the parties.”
And at page 99;
“Duke/and Andrew submit names of 2 quantity survey orders (sic) on a letter to court to choose there from. The 1st name on the letter is disqualified upon the objection of Mr. Duke.
Court: Since I have seen a complementary card of Chief Edet Effanga Henshaw describing himself as a quantity surveyor and I have seen nothing on the other name Elder Koko Ibok. I appoint Chief Edem Effanga Henshaw to quantify the property now in dispute at No. 71 Target Road, Calabar and submit his report to court. Both parties shall share the bill of the quantity surveyor equally.”
When the order of his lordship did not achieve the desired result, he backed down and said on page 100:
“Court: I have done my bit to settle this matter which has failed. That is enough.”
The evidence of the DW1, Charles Owoo under cross examination at page 104 of the record is striking here, he said:
“I never gave my consent to plaintiff to build on the land. I saw plaintiff building and I protested. I told her to stop building until we finalized our negotiations. She refused because she was desperate.”
The contract is that of the parties and they have to reach a consensus on all the essential elements before one can be said to exist. The role of the court is to give effect to the agreements of the parties. The court cannot make agreement for them or even impose one on them. See: owoniboys Technical services Ltd. vs. U.B.N. Ltd. (2003) 15 NWLR (pt. 844) 545; S. E. Co. Ltd. vs. N.B.T.C. (2006) 7 NWLR (pt. 978) 201; African Reinsurance Corporation vs. Fanlay (1986) 1 NWLR (pt. 14) 113.
It was no justice for the learned judge to turn around and force the bill presented by the respondent down the throat of the appellants by awarding N6, 537, 950.00 against them as special damages.
It is important to consider here the argument of the learned counsel for the respondent at page g of his brief. He had argued that the lease agreement between the parties was to end in 2042. With respect I do not think the parties could have contemplated a lease that will run for about 50 years by their mere oral agreement and without any provision for the mode of its determination. By the provisions of section 75 of the Law of Property Law of cross River state, 2004, all transfers of land or any interest therein aimed at transferring legal interest are void unless created by a deed. section 76 of the same law forbids the creation of interest or disposal of interest in land by parol, it must be done in writing signed by the parties. In the absence of any written agreement, the parties could only create an equitable interest. Again section 77 (1) of the same Law provides that:
“Notwithstanding any consideration given having been for the same such interest created by parol has the force and effect on interests at will only.”
It is one of the features of an interest at will that any party thereto can determine the agreement upon giving notice that is reasonable in the circumstances. See Odutola vs. papersack (supra).
It comes to be that though there was an initial arrangement between the Respondent and the Appellants to create a lease in respect of the Appellants, property at No. 71 Target Road, calabar, their oral agreement did not meet the requirements of a valid lease as it lacked the necessary ad idem on the rent to be paid, the commencement date, the duration of the lease, which were ail left to be determined by value of the building to be constructed on the rand which itself did not receive mutuality or consensus of the parties.
Issue No. 2 in the Appellants’ Brief is about the trial court attributing to the 1st appellant the evidence he did not give. The appellants’ counsel has however gone ahead to pick other comments of the learned trial judge on other parts of the judgment upon which counsel urged this court to hold that the lower court wrongly ascribed evidence to the witnesses outside the evidence placed before him.
The submission of the learned counsel for the respondent is, in my view quite apt on this issue that it is not every error, slip, comment or even omission of the lower court that will vitiate the judgment or result in an appeal being allowed. It is only where the error is substantial to occasion a miscarriage of justice that it may warrant interference by the appellate court. See Kraus Thompson organisations Limited vs. University of calabar (2004) All FWLR (pt. 209) 1148; Onajobi vs. Olanipekun (1985) 4 SC (pt. II) 156; Owhonda vs. Ekpechi (2003) FWLR (Pt. 181) 1565.
The third issue is about the award of N2 million as general damages. The rower court based the award on the trespassory acts of the appellants which he said affected the respondent and her business on the building.
The award of damages is basically to compensate the claimant for the loss suffered as a result of the wrong done by the opposing party. Damages are classified as either special or general as pecuniary or non-pecuniary losses. While general or non-pecuniary damages will not need to be pleaded in detail, and are awarded based on the court’s reasonable and lawful assessment, special -damages or pecuniary losses must be specifically pleaded and strictly proved. See Akinkugbe vs. Ewulum Holdings Nigeria Ltd. (2008) 12 NWLR (pt. 1098) 375; Iyere vs. Bendel Feed and Flour Mill Ltd. (2009) All FWLR (Pt.453) 1217.
It is therefore incumbent upon the court to properly scrutinize the claim to ensure that what is styled as general damages does not amount to special damages that runs foul of the requirement of specific pleadings and strict proof. For instance what the learned trial judge awarded as general damages in the instant case was partly to compensate for the acts of the Appellants which allegedly affected the business of the Respondent. That aspect of the award amounts to pecuniary or special damages the standard of pleadings and proof of which the Respondent failed to meet and the award as general damages was not correct. A plaintiff who fails to prove special damages cannot be compensated with an award of general damages. See SPDC vs. Tiebo VII (2005) 3-4 SC 137. There is also the need to avoid double compensation in the award of damages and so a party who has fully recovered under special damages will no longer be allowed to recover under general damages. See Soetan vs. Ogunwo (1975) 6 SC 67.
The award of N2 million as general damages is accordingly set aside.
What the evidence in this case has shown is that the parties were not ad idem on the fundamental requirements of the lease agreement they set out to achieve and where the contract was not made out, there can be no breach.
In my view this is the type of a case in which the lower court would have fully exercised its judicial powers to allow the parties, time to sort out their differences outside the purview of litigation especially when the learned judge himself saw reasons for it by appointing an expert to value the property on the land. Instead the trial judge turned round to grant the amount stated by the Respondent. It is not a case of debt. It is one based on contract where each party is free to put in its own terms until a settled position is achieved. Since the amount of N6, 537, 950.00 granted by the lower court as special damages did not receive the blessing or consent of the Appellants, it cannot be awarded against them and it is consequently set aside.
However there is no doubt that the Appellants brought the respondent to their land at 71 Target Road, Calabar and consented to exhibits 1 and 2 showing the design of the structure to be erected and the estatement respectively. The appellants indeed expected the Respondent to be financially committed to the extent of N2, 250, 050.00 on the building. There is evidence also that the Respondent cleared the land for an unspecified sum of money and gave an amount of N750, 000.00 to 1st appellant for construction of fence which was abandoned. The court has equitable jurisdiction to ensure that the Respondent does not go away with her hands empty after expending her money on a building which is still there on the land of the Appellants. She should get the agreed sum of N2, 250, 050.00 with the N750, 000.00 she gave for construction of fence making N3, 000, 050.00 (Three million and fifty naira).
consequently the appear records a partial success in that the sum of N6, 537, 950.00 awarded to the Respondent as special damages is set aside, and in its place I award an amount of N3, 000,050 to the Respondent.
On the whole this appeal succeeds on issues 1 and 3 but fails on issue 2 of the Appellants’ Brief of Argument. The sum of N6, 537, 950.00 granted to the Respondent is replaced with N3, 000,050.00 (Three million and fifty naira) while the general damages of N2 million is set aside.
I make no order as to costs.
JAFAARU MIKA’ILU, J.C.A.: I agree
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I read before now the lead judgment of my noble Isaiah Lord, Olufemi Akeju, JCA, just delivered and I quite agree with His Lordship’s reasoning and conclusion reached therein. The appeal as resolved on the issues identified for determination meritorious and it is accordingly allowed by me. I endorse the consequential orders in the said lead judgment inclusive of the order with regard to costs.
Appearances
Charles E. Duke, Esq.For Appellant
AND
Essien H. Andrew, Esq.For Respondent
