ALHAJI AUWALU BURA HASSAN V. GODWIN OBODOEZE & ORS (2012)

ALHAJI AUWALU BURA HASSAN V. GODWIN OBODOEZE & ORS

(2012)LCN/5254(CA)

In The Court of Appeal of Nigeria

On Friday, the 25th day of May, 2012

CA/J/172/2006

RATIO

CONTRACT: WHETHER OR NOT THE LAW ALLOWS ORAL AGREEMENT TO OPERATE IN A CONTRACT PREDICATING ON LEASE

With the subject matter of this case predicating on Lease, the question of whether or not the law allows oral agreement to operate is a matter which could be determined from the plethora of decided authorities relevantly cited by both learned counsel representing the parties. The case of Omega Bank (Nig.) Plc. V. OBC Ltd. (Supra) was reliably relied upon by the learned appellant’s counsel in particular of Page 166-167 wherein their Lordships of the apex court held and said:- “…Whether the negotiations between the parties eventually crystallized into a valid and enforceable agreement for which damages maybe recoverable for the breach of the contract it is only when there is a valid and enforceable contract that the issue for example of damages may become relevant and important.” Also at page 17, Musdapher JSC (as he then was) went further and said: “When negotiations are in progress between parties intended to enter into a contract, the whole of those negotiations must be considered so as to determine whether if at all, the contract came into being. The parties here intended to have a written contract and by their rejection of exhibit P7, the Respondents must be taken to have refused to enter into the contract with the appellant. Accordingly, there was no contract between the parties”. With reference also the case of Okoye V. Nwulu (2001) 11 NWLR (Pt 724) 362 at pages 366-367 Pats-Acholonu J.C.A. (as he then was and of the blessed memory) held and said: “…what is the definition of a lease? Generally a lease may be in writing either by deed and a memorandum in writing or by parol….. The term Lease as a agreement does not have to be in writing… “. Per. CLARA BATA OGUNBIYI, J.C.A.

WHETHER THE ABSENCE OF WRITING THE TERMS OF THE CONTRACT WILL LEAD TO NULLITY OF SUCH CONTRACT

ON THE DEFINITION OF A DRAFT DOCUMENT

A draft document is not by law a binding document. The Oxford Advanced Leaner’s Dictionary 7th Edition at page 442 defined the word Draft as “a rough written version of something that is not yet in its final form”. A draft is that yet to be concluded and therefore cannot be authentic and having a binding effect. For all intent and purpose the logical conclusion in respect of exhibits A1 and A2 is that they are meant to only fulfill all righteousness of the contract agreement which had already been concluded. Per. CLARA BATA OGUNBIYI, J.C.A.

PRACTICE AND PROCEDURE: WHETHER A COUNSEL”S ADMISSION IS BINDING ON HIS CLIENT

Furthermore and on the question of admission, the law is also specific in plethora of decided authorities that a counsel’s admission is binding on his client. In the case at hand therefore the document exhibit A12 written by the appellant’s counsel is, in law an admission which is binding on the client. The Supreme Court authority in the case of Okesuji V. Lawal (Supra) is apt wherein Akpoto JSC at page 673 held and said: “A counsel can, while functioning as such, make admissions of facts which could be binding on his client, particularly where such admission was made for the purpose of dispensing with proof at the trial and when the client failed to refract the admission before judgment.” Also in a criminal matter of the case of Amadi V. State (1993) 8 NWLR (Pt 314) 644 at 668 Onu, JSC also held and said: “… That the concession of non-support of 1st appellant’s conviction proceeded by way of an address from counsel would, in my view, not derogate from its potency and effect. This is because an address although not a suitable substitute for evidence – see at 263 Oduola V. Coker (1981) 5 SC. 197 at 263 and Acka V. Akure (1987) 1 NWLR (Pt 47) 74-qualifies in the circumstances of the instance case as admission as provided in section 19 and 20(i) of the Evidence Act Cap 112, Laws of the Federation of Nigeria, 1990.The two sections state:
19. An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and in the circumstances, herein after mentioned.
20(1) Statements made by a party to the proceeding, or by an agent to any such party, whom the court regards, in the circumstances of the case, as expressly of impliedly authorized by him to make them, are admission.” Per. CLARA BATA OGUNBIYI, J.C.A.

CONTRACT: THE REQUIRED NECESSARY INGREDIENTS FOR A VALID LEASE CONTRACT

Plethora of authorities have clearly established the required necessary ingredients for a valid lease contract; the elements have been stated in the following cases: Innit V. Ferado A X C. Ltd (1990) 5 NWLR (Pt 152) 604 at 620, Union Bank V. Ozigi (1991) 2 NWLR (Pt. 176) 677 at 694, Delta Steel Nig. Ltd. V A.C.T. Incor (1991) 4 NWLR (Pt 597) 53 at 66 which are all decisions of this court and F.G.N. V. Zebra Energy Ltd. (2002) 18 NWLR (Pt. 798) 162 wherein the apex court per Mohammed JSC at pages 192-194 held and said: “…However, if is settled law that the offer to enter into a unilateral contract is accepted on commencement of performance, even though completion of performance is a condition precedent to the offeror’s liability to perform his promise. See Halsbury’s Law of England, 4th Edition, Vol. 9(1) Paragraph 657… I have indicated earlier in this judgment that the respondent had accepted the offer and had made part payment of the signature bonus/reserved value of $1 million U.S. Dollars. By this token the appellants have no alternative but to keep the offer open since the offeror has commenced performance. See Abbott V. lance (1960) Legge 1283 NSWFC. In a decision of this court it was held that acceptance of an offer may be demonstrated by the conduct of the parties as well as by their words or by documents that have passed between them. See Union Bank of Nigeria Limited V. Ozigi (1991) when the appellants withdrew the allocation of OPL 248 from the Respondent there was a validity existing and legally binding contract between the appellants and the respondents”. Per. CLARA BATA OGUNBIYI, J.C.A.

DAMAGES: THE PRINCIPLE OF LAW RELATING TO DAMAGES AS COMPENSATION

In the case of Ibro Hotels Ltd. V. Hotel Support Services Ltd. (2001) 8 NWLR (Pt 714) 174 Oduyemi JCA at page 186 held and said: “The principle of law relating to damages as compensation for breach of contract is that subject to a few controls, the parties to a contract may themselves specify in their contract the remedy available to the innocent party following the other s breach. In the absence of any such ‘tailor made’ clause on the remedy, the law on damages fills the gap with standard-form provisions on the assessments of money compensation which applies to all forms of contract. Damages for a breach of contract committed by the defendant are a compensation to the plaintiff for the damage, loss or injury he has suffered through that breach. He is as far as money can do if, to be placed in the same position as if the contract had been performed. This implies a ‘net-loss’ approach in which the gains made by the plaintiff as the result of breach (e.g. savings made because he is relieved from performing his side of a contract which has been terminated for breach, savings in taxation, benefits obtained from partial performance, or the salvage value of something left in his hands) must be set off against his lasses from the breach (after he has taken reasonable steps to minimize his losses)”. Further authority on assessment of damages by the learned jurist Karibi-Whyte JSC is the case of Ijebu-Ode LG V. Adedeji Balogun & Co. (1991) 1 NWLR (PT 166) 136 wherein at page 158 his Lordship held and said: “In cases of breach of contract assessment of damages is calculated on the loss sustained by the injured party which loss was either in the contemplation of the contract or is an unavoidable consequence of the breach. See Shell B.P. V. Jammal Engineering Ltd. (1974) 4SC 33, 1 All NLR (Pt 1) 542.” Nnaemeka – Agu, JSC (of blessed memory) also in the case of Okongwu V. N.N.P.C. (1089) 4 NWLR (Pt 115) 296 at 309 held and said: “…the principle of assessment of damages for breach of contract which has been applied by the court is restitution in intergrum – that is, that in so far as the damages claimed are not too remote, the plaintiff shall be restored, as far as money can do it, into the position in which he would have been if the breach had not occurred…” Per. CLARA BATA OGUNBIYI, J.C.A.

JUSTICES

CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

Between

ALHAJI AUWALU BURA HASSAN Appellant(s)

AND

1. GODWIN OBODOEZE
2. BASIL OKEKE
3. EMMANUEL DUMBILI Respondent(s)

CLARA BATA OGUNBIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal from the decision of the High Court of Justice of Plateau State delivered on the 25th day of November, 2005, wherein the Lower Court ordered the Appellant to pay the sum of N803, 910 (Eight Hundred and Three Thousand, Nine Hundred and Ten Naira) to the Respondents being expenses incurred for on alleged breach of contract by the Appellant for the leasing and management of the Appellant’s Property at Plot BP667 Polo Round About Jos and to also pay 21% interest on the sum as from October 2002 to the date of judgment and thereafter 10% interest until judgment was fully liquidated (P4 of the Record of Appeal).
Dissatisfied with the judgment of the Lower Court, the Appellant filed an appeal against the decision. The Amended Notice which contains the Grounds of Appeal was filed on 25th day of June, 2007 on the order of this Honourable Court.
The facts of the case are as follows:
The Respondent had on the 11th day of December, 2002, obtained leave of the Lower Court to enter this case under the undefended list; and consequent upon the Appellant filing his Notice of intention to Defend the action, the matter was eventually transferred to the general cause list for hearing. Parties were thereupon ordered to file their pleadings accordingly.
The 1st Respondent testified as the only plaintiff witness while the appellant and another person testified for the Defence.
The case of the Respondents on the one hand was that they had incurred loss in the sum of N803,910.00 as a result of the breach of oral agreement between them on the leasehold and management of the Appellant’s property situate at Plot BP 667 Polo Round About, Jos (see Page 4 of the Record of Appeal).
The Appellant had on the other hand contended vehemently that what had transpired between him and the Respondents were purely negotiations which never crystallized into any contract. Their agreement was therefore subject to contract and a deposit of the sum of N1m within three days of the date of the negotiation. When the Respondents failed, the Appellant had to source for an alternative businessman who was ready to do business with him. Thus the execution of a draft leasehold agreement and time of performance was of essence to the whole contract and therefore contended that he was not liable to them of any amount which they alleged to have expended in the course of the contract (See lines 10 – 12 of p.144 of the Record of Appeal, Lines, 10-12).
The Lower Court in evaluating the evidence before it disregarded the defence of the Appellant that the whole agreement was subject to contract and that time was of essence to the agreement and that it was not in the least, the business of the Appellant as to how the Respondents sourced for the money for the business.
In a reserved judgment delivered on the 25th November, 2007, the Respondents case succeeded and all the reliefs they sought were therefore granted by the Court.
The notice and grounds of appeal are contained at pages 173 and 174 of the record of appeal wherein the initial two grounds of appeal without their particulars are as follows:

GROUNDS OF APPEAL
1. The decision of the lower court is against the weight of evidence
2. ERROR IN LAW
The learned trial Judge erred in law when he entered judgment in favour of the Respondents on the basis of their oral expressions of interest in entering into a building contract with the appellant and in the absence of signed agreement between the parties and this has occasioned a serious miscarriage of justice.
PARTICULARS OF ERROR SUPPLIED
By the leave of this court pursuant to a motion on notice, an order was on the 29th October, 2007 granted the appellant for leave to file and argue 3 additional grounds of appeal which amended notice of appeal was deemed filed on the same 29th October, 2007. The reproduction of the additional grounds 3, 4 and 5 without their particulars will also be relevant.
3. ERROR IN LAW
The learned trial judge erred in law in holding that there was a valid contract between the Appellant and the Respondent when time and performance of a term of contract, breached by the Respondents, was of essence to the contract.
PARTICULARS OF ERROR SUPPLIED
4. ERROR IN LAW
The learned trial judge erred in law in holding that silence to the letter from the Respondents counsel, requesting refund of N803,910 from the Appellant amounted to admission.
PARTICULARS OF ERROR SUPPLIED
5. ERROR IN LAW
The learned trial (sic) eyed in law in awarding the sum of N500,000 to the Respondents as interest for the sum borrowed by the Respondents to perform the contract when there was no prior agreement between the parties that the sum to be expended on the project would be borrowed, moreover when the date for the loan repayment had not expired as to attract the interest of N500,000.00
PARTICULARS OF ERROR SUPPLIED
The Appeal was entered in the court on the 21st July 2006. While the appellant’s brief of argument filed 15th June, 2009 was, by the order of this court sought and obtained, deemed filed and served on the 17th June, 2009 that of the respondent also by order of the court sought and obtained was duly deemed filed and served on the 23rd June, 2011.
On the 11th April 2012 of the hearing of the appeal, the learned counsel Dr. Garba Tetengi in company of Adenike Bello (Miss) represented the appellant while Christy Hwyere (Miss) was a counsel for the respondents. In adopting and relying on their brief of argument, the learned appellant’s counsel urged that the Appeal be allowed. On behalf of the respondents however, their learned counsel submitted in favour of dismissing the appeal.
On the one hand and from the five grounds of appeal filed, four issues were formulated on behalf of the appellant which reproductions are as follows:
ISSUE NO. 1
Whether the learned trial Judge was right in entering judgment in favour of the Respondents against the Appellant on the basis of an oral expression of interest or negotiation that was not crystallized into a binding agreement between the parties.
ISSUE No. 2
Whether there was a valid enforceable contract between the Appellant and the Respondents when as part of the condition during negotiation between the parties was that time of performance was of essence, and same was breached by the Respondents.
ISSUE NO. 3
Whether the Learned trial Judge was right in holding that silence to a letter of demand by counsel to the Respondents prior to commencing this action, requesting for refund of the sum of N803,910.00 amounted to an admission in law.
ISSUE NO. 4
Whether the learned trial Judge was right in awarding the sum of N500,000.00 against the Appellant for a loan collected by the Respondents from a Person (not bank and not licensed money lender) in which the Appellant was not a privy or party to the transaction.
On the other hand, and on behalf of the respondents three issues which were not too distant from those of the appellant were formulated for consideration and are as follows:
1. From the facts of the case, was there a valid agreement between the parties (grounds 2 and 3)
2. Whether the Appellant’s silence over the demand letters he received from the Respondents amounted to an admission? (Ground 4)
3. Whether the learned trial judge was right when he awarded the sum of N500,000.00 claimed by Respondents? (Ground 5)

The determination of the appeal would be predicated on three issues whereby the appellant’s issues one and two could conveniently be taken together. In other words, the adoption of the respondent’s three issues would be appropriate and comprehensive.
The 1st issue raised poses a question as to whether there exists a valid agreement between the parties.
Submitting in denial of any valid and existing contract between the parties, the learned appellant’s counsel argued that a contract of this nature that involves building of complex, shopping complex could not have been executed orally. That the appellant had since joined issues with the Respondent in paragraph 2(f) of the Statement of defence. That the intention of parties to enter into a contract of leasehold and development of the appellant’s property of Plot BP 667, Polo Ground Round About, Jos, was subject to both parties entering into a written agreement that would bind them. That it would be preposterous for anyone to assume or inter that such a transaction could be entered into orally without the parties duties and responsibilities clearly spelt out in a building contract. That a contract that involves building of complex could not have been executed orally. That the trial court was certainly in error by concluding that the appellant admitted paragraphs 1-7 of the statement of claim. The evidence of the appellant at the trial court was relied upon to substantiate the argument. Reference was also made to the case of Omega Bank Nig. Plc V. O.B.C. Ltd (2005) SCNJ 150 at 166-167. That the absence of such written contract depicts lack of valid contract, because their agreement was subject to contract.
That since the negotiations between the parties hitherto had not crystallized into a binding contract; there could not have been a breach of contract to justify the award of damages to the respondents. Further reference was also made to the cases of Zakhem Con. (Nig.) Ltd. V. Emmanuel Nneji (2006)5 SCNJ 242 at 253 and Tsokwa Oil Marketing Co. Nig. V. Bank of the North Ltd (2002) 5 SCNJ 176.
That the fact that the Respondents had expended money in the course of the negotiation of the contract which did not eventually crystallized into a binding agreement, does not in any way bind the Appellant in damages for their effort. That if the agreement was intended to be oral in nature, there would have been no use for drafting any agreement. That it was obvious that the nature of the transaction was one that must be in writing as contemplated by the parties. Counsel argued that the issue be resolved in favour of the appellant.
That assuring that there exists a valid contract between the parties; the appellant was justified in terminating the contract for lack of diligence in time of performance. Counsel cited the decision of the apex court in the case of Nigerian Bank for Commerce and Industry V. Integrated Gas (Nig.) Ltd (2005) (SCNJ) 104 at 123 wherein it was held that a party is at liberty to justify his action for breach of contract if there were in existence of the time facts which would have provided a good reason for terminating the contract. That where time is of essence to the performance of any contract, it must be done of the time, otherwise the other party has a right to repudiate or discharge himself from it. That even where the contract or agreement is silent as to the time of performance the law implies an engagement that it shall be executed within a reasonable time.
See the case of Nigerian Bank for Commerce and Industry (Supra) at P.126. See also case of Paul E. Edem V. Candon Balls and Anor. (2005) 6 SCNJ 189.
In response on behalf of the Respondent, the learned counsel submitted the inapplicability of the case of Omega Bank (Nig.) Plc V. OBC Ltd. which was relied upon by the learned appellant’s counsel. That on the submission by the appellant’s counsel that a lease agreement cannot be made orally, counsel argued same as misconceived in law. That the subject matter of this case is not sale of land but a lease in respect of which the law allows oral agreement. Learned counsel cited the cases of Okoye V. Nwulu (2001) 11 NWLR (pt 724) 362 and Onayemi V. Idowu (2008) 9 NWLR (Pt 1092) 306 to substantiate his argument.
Counsel further relied on the decided authorities which principles clearly laid down valid contract on conclusive oral agreement. Again reliance was also firmly made on the pleadings of parties especially that of the Respondents’ Statement of claim. That the reliance of the appellant on paragraph 2(f) of his Statement of defence which is a general traverse cannot be sustained as having joined issues with the respondents on their paragraphs 1-7 of their pleadings. That this is because the general traverse is in law deemed to be an admission, and no issue can therefore be said to have been joined.
Furthermore that the appellants counsel as solicitor during the transaction wrote a letter dated 5th November, 2002 which was tendered and admitted in evidence as Exhibit A12 which counsel submitted is a clear admission of the respondents’ case. That the respondents had in the circumstance clearly established all the necessary ingredients for a valid lease contract and that the elements have been stated in various decided authorities.
The learned counsel recapitulated the events that gave rise to the case at hand. In other words that the appellant offered his piece of land to the respondents to develop which they did accept the offer by embarking on the activities herein stated up to the point of presenting N1,000,000.00 (One Million Naira) to the appellant, who the respondents alleged of that stage, made a summersault and introduced a new group of persons to join the respondents, which they out-rightly rejected. Counsel argued therefore that having commenced activities with the approval of the appellant, the respondents had, by their conduct orally accepted the offer made to them by the appellant. That a valid contract had as a result been concluded. Learned counsel in the circumstance therefore submitted in favour of a valid and binding contract existing between the parties. Reference was also made to the case of Alfortrin Ltd. V A.G. Fed. (1996) 9 NWLR (Pt. 475) 634 and urged this court to hold in favour of an existing valid contract.
It is pertinent to restate that the Respondents claim from the pleadings is predicated on damages arising from breach of a lease contract. Paragraph 3 of the Statement of claim of page 73 of the record of appeal is evident. At paragraph 7 of the appellant’s brief of argument it was submitted on behalf of the appellant that “it would be preposterous for anyone to assume or infer that such a transaction could be entered into orally without the parties duties and responsibilities, clearly spelt out in a binding contract”. The counsel capaciously relied on Paragraph 2(f) of their statement of defence and submitted Parties having joined issues. The reproduction of the said paragraph at page 890 of the record States thus:
“(f) The defendant did not execute any agreement by way of undertaking to refund any money spent by the plaintiffs in the process of formalizing their proposals, since the entire transaction is subject to contract.”
With the subject matter of this case predicating on Lease, the question of whether or not the law allows oral agreement to operate is a matter which could be determined from the plethora of decided authorities relevantly cited by both learned counsel representing the parties. The case of Omega Bank (Nig.) Plc. V. OBC Ltd. (Supra) was reliably relied upon by the learned appellant’s counsel in particular of Page 166-167 wherein their Lordships of the apex court held and said:-
“…Whether the negotiations between the parties eventually crystallized into a valid and enforceable agreement for which damages maybe recoverable for the breach of the contract it is only when there is a valid and enforceable contract that the issue for example of damages may become relevant and important.”
Also at page 17, Musdapher JSC (as he then was) went further and said:
“When negotiations are in progress between parties intended to enter into a contract, the whole of those negotiations must be considered so as to determine whether if at all, the contract came into being. The parties here intended to have a written contract and by their rejection of exhibit P7, the Respondents must be taken to have refused to enter into the contract with the appellant. Accordingly, there was no contract between the parties”.

With reference also the case of Okoye V. Nwulu (2001) 11 NWLR (Pt 724) 362 at pages 366-367 Pats-Acholonu J.C.A. (as he then was and of the blessed memory) held and said:
“…what is the definition of a lease? Generally a lease may be in writing either by deed and a memorandum in writing or by parol….. The term Lease as a agreement does not have to be in writing… ”

The case of Onayemi V. Idowu (2008) 9 NWLR (Pt 1092) 306 is also relevant wherein this court at page 334 said:
“Consequently, whereas in this case, there is part performance of an unwritten contract, its specific performance will be enforced as if the terms of the contract have been reduced into writing…”
Babalakin JCA (as he then was) also had this to say in the case of MAB-EDE V. Okufo (1990) 2 NWLR (Pt 135) 787 at 797.
“In this case the contract between the appellant and the respondent was never reduced in writing but the law will not allow the provisions of this law to be used as an instrument of fraud and so when there is part performance of a contract its specific performance will be enforced as if the terms of the contract have been reduced into writing. Section 5(3) (c) of the Law Reform (Contracts) Law recognizes this document and makes provision for same”.
Recognition was further placed on oral agreement in the case of Ogunderu V. Macjob (2006) 7 NWLR (Pt 978) 148 at 165 wherein this court also held and said.
“However, it is settled that a court of law will not allow the absence of writing to be used as an engine of fraud in a court of justice. A court will enforce the contract if it is found that there is an agreement from the facts before the court…”
Again in the case of Lawal V. Ejidike (1997) 2 NWLR (Pt 487) 319 at 331 Ubaezonu (JCA) held and said:
“Assuming there was no written agreement but there was credible evidence showing that one party intended to divest himself of property in respect of the property in dispute and confer same on another, the court will not allow absence of writing to be used as an engine of fraud unless it is a case where the law requires the transaction to be in writing…”
With reference to the case of Omega Bank (Nig.) Plc V. OBC Ltd. relied upon by the appellant’s counsel, and submitting that it is on all fours with the case of hand, it would be expository to closely relate to the facts in that case. As rightly submitted by the learned respondents counsel the two cases are not on all fours but greatly distinguishable. The respondent in that case applied to the appellant to guarantee a loan it was to Procure from a third party. The Appellant then stated the conditions under which it could guarantee the loan. The Respondent declined to accept the condition which it felt were too onerous. The relationship as a result broke down and the facility was not granted.
The appellant in the case at hand offered his piece of land to the respondents to develop. The respondents accepted the offer and swung into action by embarking on series of activities in respect of which large sums of money was expended. This was culminated into presenting the sum of one million Naira to the appellant who of that stage somersaulted and introduced a new group of persons to join the Respondents, which they rejected.
At the trial court, only one witness testified for the plaintiffs/respondent in the person of Godwin Obodoeze, the 1st Plaintiff, who testified as PW1 and was duly cross examined. The entire witnesses’ evidence in chief is contained of pages 130 – 135 of the record of appeal while the cross examination is at pages 139-141. On behalf of the defendant/appellant he gave evidence on his behalf as DW1 in chief at pages 142-144 of the record. The witness was cross examined of pages 147 – 148 of the said record of appeal.
One Patrick Obodoeze gave evidence in chief as DW2 of Pages 148 149 of the record. The witness was cross examined at Pages 149-151 of the said record.
With specific reference to the evidence by PW1 in chief, he had this to say at pages 130-131 of the record:
“In August, 2002 I was in my store or shop when defendant and Patrick Obodoeze who is my junior brother came to my shop at No. 16 Ahmadu Bello Way. They said they wanted to lease the land in dispute for shopping complex. It was the defendant that wanted to lease the land … they said they need shopping complex about hundred stores. I said if was too much for me so I invited 2nd and 3rd plaintiffs to do it together… we met with the defendant that the building should be decked. We agreed that after five years of collection of fees by us he would collect the building. It was agreed that we should engage a surveyor to survey the land. Defendant said we should pay him N1, 000,000.00 after building as his service charge. We went to JMDB and called an Architect who went to the land and measured the land we went to the office of JMDB without the defendant. The defendant earlier gave us the site plan of the land. They drew the building plan and gave us. We gave defendant for confirmation. Defendant gave us the go ahead. We invited our counsel who wrote agreement for us and we sent it to the defendant… Later they wrote another agreement with his counsel and brought if to us… In their new agreement he said he gave part of that land sic – Luxurious buses”.
It is settled, taking together the pleadings of parties and the evidence in particular that by PW1 that parties met several times and that the Defendant/appellant demanded for the construction of a befitting shopping complex on the site. That the Defendant requested the plaintiffs to arrange for the survey of the land, production of building plan, lease agreement and a down payment of N1,000,000.00. That the plaintiffs accepted these terms and proceeded to execute them one after the other to the satisfaction of the Defendant. The averments of these facts on the pleadings and testified to by the 1st plaintiff whose evidence was not discredited under cross examination has also been confirmed by the evidence of DW2.
From the evidence of the witnesses both that of PW1 which is confirmed to a great extent by DW2, there is no inference or categorical restatement that the parties either entered into or specifically wanted their transaction to be reduced into writing before the activities are to be embarked upon.
On a graphic and careful perusal of exhibit A12 same speaks volume.
The letter was written by the appellant’s counsel, as his solicitor during the transaction. As rightly submitted by the learned respondents counsel, the contents of the letter supports the Respondents case that there was a valid oral agreement between the parties. Paragraphs (b) of the letter confirms the evidence of PW1 wherein they rejected the proposal by the appellant that they are to share or join hand with another Lessee in carrying out the constitution agreement. Paragraph (c) also intimated the appellant of the expenses already incurred subsequent to the agreement. The total expenses incurred has also been enumerated in paragraph (d) while paragraph (e) is a clear information of the loan of N3,000,000.00 advanced for the execution of the contract. At paragraph (f) the solicitor therefore advised the appellant (his client) and said:
“f) In view of the foregoing, we are advising you as your solicitor on a serious and candid opinion to make up your mind urgently and consider these people, close your mind against those promises that night not yield any result”.
(emphasis are mine). Without a firm agreement and concluded commitment, there would not have been such a very serious warning from the counsel. The said foregoing exhibit is firmly in confirmation of the evidence by PW1. Documentary evidence which supports an assertion is a conclusive proof of that fact which is asserted.
The said exhibit A12 in further consideration should be read together with Exhibits A1 and A2. In other words while Exhibit A12 was made on the 5th November, 2002, exhibits A1 and A2 are only Draft copies which are undated. A draft document is not by law a binding document. The Oxford Advanced Leaner’s Dictionary 7th Edition at page 442 defined the word Draft as
“a rough written version of something that is not yet in its final form”.
A draft is that yet to be concluded and therefore cannot be authentic and having a binding effect. For all intent and purpose the logical conclusion in respect of exhibits A1 and A2 is that they are meant to only fulfill all righteousness of the contract agreement which had already been concluded.
Further still and even on the pleadings of parties, there is a conclusive deduction of principles of law which is very trite and recondite. With reference for instance to paragraphs 1-7 of the Respondents Statement of claim the production State thus:-
(1) The Plaintiffs are businessmen residing in Jos.
(2) The Defendant is a businessman residing in Jos and the lawful holder of a Certificate of Occupancy No. BP 667 covering a piece of land situate at Polo Round About, Jos.
(3) The Plaintiff aver that in August 2002, the Defendant approached the First Plaintiff and offered to lease the empty portion of his personal landed property at Plot No. BP 667 by Polo Round about Jos.
(4) The First Plaintiff after considering the enormous amount involved invited the Second and Third Plaintiffs to team up so as to acquire the property on a lease basis.
(5) They all met on several occasions with the Defendant who demanded the construction of a befitting shopping complex on the site.
(6) The Defendant requested the Plaintiffs to arrange for the survey of the land, production of building plan, lease Agreement and a down payment of N1, 000,000.00
(7) The Plaintiffs accepted these terms and proceeded to execute them one after the other to the satisfaction of the Defendant.
While the trial court in its conclusion found that the paragraphs were not denied by the defendant/appellant, his counsel in his submission relied on paragraph 2(f) of the Statement of defence as a comprehensive denial of the paragraphs. The said paragraph 2(f) at page 89 of the record of appeal had been earlier reproduced in the course of this judgment.
As rightly submitted by the learned respondents’ counsel, on a cursory examination of the said paragraphs 1-7 of the respondents’ statement of claim read along with paragraph 2(f) of the statement of defence (supra), the facts in the latter are not direct denial of the former pleadings. The principle of law has been well laid down that facts not denied in a pleading are deemed admitted. In other words, every material fact must be clearly denied before issues are deemed joined. The following decided authorities are very well and explicit on the point.
In the case of Ezemba V. Ibeneme under reference supra, the apex court per Onu, JSC held thus at pages 661-662
“As can be gathered from 16 of respondents’ amended statement of claim, they (respondents) specifically pleaded that the goods supplied to the appellant were delivered of Alor between the 15th and 25th day of July, 1991. The appellant in response to that piece of pleading denied in general terms paragraphs 13-18 of the amended statement of claim and further pleaded that the respondents supplied only 17, 407 metres of cable to him.
No attempt was made to join issue with the respondents as to the date of delivery of the goods. As the appellant did not specifically plead denying the allegation. The learned trial judge, in my view, was right when he held that issues were not joined as to the date of delivery”.
The same principle of law was considered by this court in the case of Agric Dev. Corp. V Okedi (Supra). It is not therefore sufficient for an appellant to make a general denial but must state facts that are opposed directly to that of the Respondent. See again the decision of this court in the case of Iluyomade V. Ogunsakin wherein Amaizu JCA held and said at page 375
“Finally, it is observed that the purpose of a traverse in a statement of claim… the amended statement of defence filed by the appellant did not contradict the assertion made in respect of
(i) hospital expenses; and
(ii) cost of spare parts for the damaged car”
Some deduction was made in the case of P.B. (Nig.) Plc V. O.K. Contract Point Ltd (Supra).
Also and to drive the point home very firmly is the apex court in the case of Bua V. Daudo (supra) wherein Uwaifo, JSC at page 670 held and said:
“… The appellant in his own statement of defence did not respond to the allegations in the statement of claim in a manner that would suggest that he might directly wish to controvert those allegations. Infact he pleaded in paragraph 3 of those allegation that:
‘The 2nd defendant is not in a position to admit or deny the averments in paragraphs 3 12, 26, 27 as they are facts within the exclusive knowledge of the plaintiff.’
Such pleading in law may be taken as an admission of the facts contained therein… or at any rate it is likely to be constructed as placing no burden on the plaintiff unless by implication from the other paragraphs of the statement of defence that there has been a denial.”

Furthermore and on the question of admission, the law is also specific in plethora of decided authorities that a counsel’s admission is binding on his client. In the case at hand therefore the document exhibit A12 written by the appellant’s counsel is, in law an admission which is binding on the client.
The Supreme Court authority in the case of Okesuji V. Lawal (Supra) is apt wherein Akpoto JSC at page 673 held and said:
“A counsel can, while functioning as such, make admissions of facts which could be binding on his client, particularly where such admission was made for the purpose of dispensing with proof at the trial and when the client failed to refract the admission before judgment.”
Also in a criminal matter of the case of Amadi V. State (1993) 8 NWLR (Pt 314) 644 at 668 Onu, JSC also held and said:
“… That the concession of non-support of 1st appellant’s conviction proceeded by way of an address from counsel would, in my view, not derogate from its potency and effect. This is because an address although not a suitable substitute for evidence – see at 263 Oduola V. Coker (1981) 5 SC. 197 at 263 and Acka V. Akure (1987) 1 NWLR (Pt 47) 74-qualifies in the circumstances of the instance case as admission as provided in section 19 and 20(i) of the Evidence Act Cap 112, Laws of the Federation of Nigeria, 1990.
The two sections state:
19. An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and in the circumstances, herein after mentioned.
20(1) Statements made by a party to the proceeding, or by an agent to any such party, whom the court regards, in the circumstances of the case, as expressly of impliedly authorized by him to make them, are admission.”

Plethora of authorities have clearly established the required necessary ingredients for a valid lease contract; the elements have been stated in the following cases: Innit V. Ferado A X C. Ltd (1990) 5 NWLR (Pt 152) 604 at 620, Union Bank V. Ozigi (1991) 2 NWLR (Pt. 176) 677 at 694, Delta Steel Nig. Ltd. V A.C.T. Incor (1991) 4 NWLR (Pt 597) 53 at 66 which are all decisions of this court and F.G.N. V. Zebra Energy Ltd. (2002) 18 NWLR (Pt. 798) 162 wherein the apex court per Mohammed JSC at pages 192-194 held and said:
“…However, if is settled law that the offer to enter into a unilateral contract is accepted on commencement of performance, even though completion of performance is a condition precedent to the offeror’s liability to perform his promise. See Halsbury’s Law of England, 4th Edition, Vol. 9(1) Paragraph 657…
I have indicated earlier in this judgment that the respondent had accepted the offer and had made part payment of the signature bonus/reserved value of $1 million U.S. Dollars. By this token the appellants have no alternative but to keep the offer open since the offeror has commenced performance. See Abbott V. lance (1960) Legge 1283 NSWFC. In a decision of this court it was held that acceptance of an offer may be demonstrated by the conduct of the parties as well as by their words or by documents that have passed between them. See Union Bank of Nigeria Limited V. Ozigi (1991) when the appellants withdrew the allocation of OPL 248 from the Respondent there was a validity existing and legally binding contract between the appellants and the respondents”.

Also and again in the case of Alfortrin Ltd. V A.G. Fed (supra) at page 657, Iguh JSC held and said:
“An offer can be accepted in such manner as be implied by the nature of the offer. Thus it may be accepted by the doing of the act which is requested by the terms of the offer to do. Accordingly the performance of a condition is sufficient acceptance without the notification of it under circumstance where an offeror in his offer impliedly indicate that he does not require notification of acceptance of the offer. See Carhill V. Carbolic Smoke Ball Co., Supra. I therefore entertain no doubt that the aforesaid respondent’s offers were duly accepted by the appellants when they sailed out of Lagos and proceeded to Takoradi and later to Tema as requested but was delayed there until the 4th May, 1976 which date the discharge of her cargo was completed’.
In the case of hand, from the totality of the testimonies of the witnesses and also the exhibits A1 & A2 read together with A12 which was an admission on behalf of the Appellant by his counsel, the acceptance of an offer was demonstrated by the conduct of the parties as well as their words or by documents that have passed between them.
Contrary to the submission by the learned appellant’s counsel therefore, his perception was a total misconception wherein he argued that “all that transpired between the parties were negotiations that were intended to be crystallized into a formal written agreement to bind the parties but which never saw the light of the day”.
The reliance made on the case of Omega Bank Nig. Plc V. O.B.C. Ltd and all other related authorities reference supra, relevant they might be in the proper applicable situations, they are however not applicable to the case in issue which is highly distinguishable. There is, in the case under consideration a valid oral contract between the parties which is legally binding. The learned trial judge cannot in the circumstance therefore be faulted in finding made in favour of the respondents as he did. The said issue is hereby resolved against the appellant.

ISSUE No.2
Whether the appellant’s silence over the demand letter he received from the Respondents amounted to an admission?
At pages 165-166 of the record of appeal, the learned trial judge held and said as follows:
“The letter dated 30th November by Plaintiffs’ counsel is an admission because defendant who received the letter is silent. By his silence is a situation in which reply is expected it is an admission. See the case of Gwani V. Ebute (1990) 5 NWLR (P.149) 201 at 217, Vaswani V. Johnson (2000) 17 NWLP (Pt 697) 582 at 588 – 589 H.C, and Trade Bank V. Chami (2003) (sic) NWLR (Pt. 83) 158 at 219-220.”
Submitting on the said issue the learned appellant’s counsel claimed, the findings as on admission made in the course of proceedings and that in any event, silence to the letter as mentioned above could not have insinuated admission. That the letter did not illicit or necessitates any response. Reference was made to paragraph 6(d) of the Statement of Defense as well as the evidence by DW1 in chief of page 92 of the record of appeal. The counsel urged the court to find in favour of the appellant.
In response, the respondents’ counsel copiously related to Exhibits A12 and A13 and submitted that the appellant did not object to their admissibility. Reference was also made to the appellant’s evidence in chief and under cross examination. That the appellant’s silence on the contents of the said letters amounted to an admission of the facts therein. The counsel urged that the issue be resolved in the affirmative and accordingly dismiss ground four of the amended Notice of Appeal.
The crux of the complaint in this issue is centered on exhibits A12 and A13 which formed the predicating reason upon which the trial court based his conclusion arrived at pages 165-166 of the record reproduced supra.
It is pertinent to restate without having to be labour the point that the question of admissibility of the document Exhibit A12 has been decided upon in the determination of the 1st issue. It is a concluded matter therefore that the said document is on admission of the Respondents case by the appellant’s counsel and which is held to be binding on the appellant.
For purpose of emphasis, a reproduction of certain excerpts of Exhibit A12 is relevant and read as follows:
“d. Find here below the detail of the expenses amounting to a total sum of N803,900.00 (Eight Hundred and Three Thousand Nine Hundred Naira only) for 1st measurement by land and survey for Drawing the Building plan, Drafting the Draft Agreement by the solicitor second measurement by Bureau for Lands, Survey and Town Planning, payment to Barrister Agaegbu money paid to Barrister.
e. They explained to us that a sum of N3,000,000.00 (Three Million Naira) was advanced to them as loan facility to execute the contract by one Mr. Pius Okeke, an Onitsha based businessman of No. 2A Attor Road Nkpor Anambra State with a promise to give him N500,000.00 monthly and finally the people who went for the loan spent N112, 000.00 for transportation and hotel bills etc.
f. In view of the foregoing, we are advising you as your solicitors on a serious and candid opinion to make up your mind urgently and consider these people, close your mind against those promises that might not yield any result.”

With reference also to Exhibit A13 it is a letter on behalf of the respondents by their counsel which was dated 30th November, 2002 and addressed to the appellant personally and the contents which substantially is a reproduction of Exhibit A12 (supra). The lost paragraph of Exhibit A13 reproduced states as follows:
“TAKE NOTICE THEREFORE that unless you pay our clients the sum of N803,900.00 (Eight Hundred and Three Thousand Nine Hundred Naira) only on or before the 7th December, 2002, we shall be left with no other option than to institute legal action against you. In it, we shall include general damages for all they have suffered so far. There will be no further notice to you before going to court. It is in your own interest to settle this amount as demanded to obviate the embarrassment and publicity a court case will bring on you. Be warned that you will ignore this letter at your own peril for a stitch in time saves nine.”
At page 146 of the record of appeal, the appellant categorically stated that he did not reply to exhibit A13. Also under cross examination of page 148 of the record of appeal, the appellant had this to say:
“Exhibits “A12” and “A13″ are received by me. I did not reply any of them. Both letters are explaining to me the expenses by plaintiffs”.
From the foregoing response by the appellant under cross examination, he was not left in doubt as to the contents and implication of Exhibits A12 and A13 thereof. Both his counsel and also that of the respondents had clearly drummed the consequences of the appellant failing to take urgent action to salvage the inevitable outcome of neglecting the warning well sounded by the respondents. For the determination as to whether or not the appellant’s silence over the demand letters he received from the respondent’s amounted to an admission, the following decided authorities stand to give the insight: for example, this court in the case of Gwani V. Ebule (1990) 5 NWLR (Pt 149) 201 at 211 had the following to say:
“By the state of pleadings and the evidence in adduced in support, the appellant by his silence in circumstances in which a reply is obviously expected, admitted that the Respondent on return to Imo State personally and through a solicitor demanded from the appellant payment for the labour he supplied as agreed in Exhibit “A”., this admission lends credence to the Respondent’s side of the case”.
“Silence in the situation aforesaid leads to an irrefutable presumption of admission by conduct or representation. This is implicit in the decision of Obaseki, JSC. In Joe Iga & Co. V. Chief Ezekiel Amkuri 4 Ors (1976) 11 SC 1. The appellant’s admission is clear and unambiguous.”
Also in Glorylux Associated Ind. (Nig.) Ltd. V N.P.F.M.B. (1993) 7 NWLR (Pt 305) 341 at 351 Ogebe JCA (as he then was) on the same principle held and said:
“The evidence in prove of the case was entirely documented, namely, Exhibits C and E, the appellant did not counter this documentary evidence. It merely denied the fact that a visit was carried out. If the appellant had reacted to Exhibit C which was written as far back as 1983 to say that no visit was carried out and the debt containing in that document could not be true, it would have had a good case in rebuttal of the respondents claim.”
Another relevant and further related authority is the case of Vaswani V. Johnson (2000) 11 NWLR (Pt. 679) 582 at 588-589 wherein Galadima (JCA) as he then was, in the same tone held and said:
“The learned trial judge rightly held that the appellants having failed to respond to the letters, were bound by the contents and reliance placed by the respondent thereon. She was also justified to hold that a prudent businessman would have reacted to the correspondence had the contents been untrue. Having failed to deny the contents of Exhibits CACJ1 and CACJ2 the appellants must be deemed to have admitted the contents. This is trite law and not a novel proposition of law as there are ample authorities in support of it. In Wiede-Mann V. Walpole (1891) I.Q.B. 534 at 532 the case heavily relied on by the appellant, Lord Esther, stated as a matter of general principle that:
“Now there are cases-business and mercantile cases – in which the courts have taken notice that, in the ordinary course of business if one man of business states in a letter to another that he has agreed to do certain things, the person who receives that letter must answer it if he means to dispute the fact that he did so agree. So where merchants are in dispute one writes to the other, ‘but you promised me that you would do this or that,’ if the other does not answer the letter, but proceeds with the negotiations, he must be taken to admit the truth of the statement”.
Contrary to the submission advanced by the learned appellant’s counsel the circumstances of the matter of hand from off indications call for a response by the appellant whose failure to reply draws to no other conclusion but must be taken and amounted to acquiescence which would amount to an admission. In othewords and having regard to the authorities under reference the conclusion arrived at is very overwhelmingly in confirmation. The same conclusion was further arrived of by Uwaifo JCA (as he then was) in the case of Abajue V. Adikpa (1994) 1 NWLR (Pt 322) 621 at 628 wherein the learned jurist held and said:
“It is in evidence that two letters written to the defendant to remind him of the ‘Account settled between you and Mr. Sonny Abajue’ on 15/12/86 and to demand compliance (Exhibit F dated 15/10/87 and Exhibit G dated 1/12/87) were not replied. One would have expected that if the defendant seriously objected to the account stated and/or that he had discovered he had earlier paid the amount therein, he would have reacted by reply”.

As rightly submitted by the learned respondents counsel, from the foregoing deductions, they have clearly established all the necessary ingredients for a valid contract, which elements have been stated in various cases amongst which are the following:
Innili V. Ferado A & C Ltd. (1990) 5 NWLR (Pt 152) 604 where at 620E Kolawole JCA held and said:
“I have not the slightest doubt that the first requisite of a contract is that the parties have reached agreement. Generally, an agreement is made when one party accepts an offer made by the other. The agreement must be certain, and final. First, an offer is an expression of willingness to contract on certain terms by the person to whom it is made with the intention that it shall become binding as soon as it is accepted by the person to whom it is addressed. An acceptance on the otherhand is a final expression of assent to the terms of the offer”.
While affirming the principle laid down for the ingredients which are essential for a valid contract, the learned jurist Ogundare, JCA (as he then was) held and said:
“In Attorney-General Kaduna State and Ors V. Alta 4 Ors (1986) 4 NWLP (Pt 38) 755 at 794, I opined thus:
‘It is trite law that the formation of a contract is not governed by rigid but by flexible rules, namely that there must be a definite offer, by one party called the offeror, and communicated to the other party called the offeree who accepts the offer, unless the offeror, the first party dispenses with such communication. See Ajayi Obe V. The Executive Secretary Family Planning Council of Nigeria (1975) 3SC. Page 4. Offer and acceptance constitute an agreement provided that the two parties reached a consensus, ad idem, that is the intention of both parties on what is agreed is identical.
Thus, in Majekodunni 4 Anor V. National Bank of Nigeria Ltd. (1978) 3 SC. Page 119 at 127 the Supreme Court per Fatayi-Williams, JSC as he then was, opined thus: “An acceptance of an offer may be demonstrated by the conduct of the parties as well as by their words or by documents that have passed between them.”

From all indications and deducing from the authorities under reference supra, it is clear in the matter at hand that the parties have by conduct as well as their words and by the documents that have passed between them in particular Exhibits A12 and A13 accepted the offer which was first orally agreed on their terms before a document for execution was prepared. Exhibits A1 and A2 which are Draft copies are mere formality which was to fulfill all righteousness of what has been agreed upon.
The said second issue is therefore resolved in the affirmative wherein I hold that the appellant’s silence over the demand letters he received from the respondents amounted to no other logical conclusion but an admission.
The issue in the circumstance is resolved against the appellant.

The third and last issue questions whether the learned trial Judge was right when he awarded the sum of N500, 000.00 claimed by the Respondents?
For the substantiation of this claim, the respondents averred to same of paragraph 16 of their Statement of claim. This was vehemently denied by the appellant at paragraph 5(e) of his Statement of Defence. The appellant therefore alleged an error by the lower court especially in the absence of any crystallization of a contract between the parties.
That the decision to borrow in furtherance of the desire of the respondents to enter into a contract with the appellant had nothing with the latter who was not a party to the transaction. Counsel therefore urged that the issue be resolved in favour of the appellant. That the appeal should in the result be allowed while the claim of the respondents is to be dismissed in its entirety.
In response to the submission the learned respondents’ counsel related graphically to page 64 of the record of appeal which was the agreement evidencing the said sum of N500,000.00 tendered and marked Exhibit IDI. That it was not in dispute, that the respondents had done off that they were required to do in the transaction when the appellant repudiated it.
That the appellant acted out of greed because some other interested parties agreed on a more favourable terms not withstanding that the contract had been concluded. Counsel therefore urged in favour of the respondents and that the appeal be dismissed as lacking in merit while affirming the decision of the trial court.
At page 73 of the Record of Appeal paragraph 16 of the statement of claim states as follows:
“16) After spending so much money in Jos in search of fund without success, the Plaintiffs hired a vehicle at the cost of N60,000.00 and proceeded to the Eastern part of Nigeria. They made a joint trip in October 2002 to Anambra State where the Plaintiffs spent one whole week before they were able to raise N3,000,000.00 (Three Million Naira) loan with an undertaking to share the profit with the lender at a lump sum of N500,000.00. During this period the Plaintiffs stayed in a hotel which cost them the sum of N52,010.00 for accommodation and feeding. They drew an Agreement for the loan”.
In response to the foregoing averment the appellant at page 91 of the record of appeal had this to say at paragraph 5(e)
“The defendant did not know anybody called Mr. PIUS OKEKE and he never instructed the plaintiffs to collect the sum of N3,500.00 allegedly claimed by the plaintiffs at Onitsha from any Onitsha based business man.”
At page144 of the record of appeal the appellant as DW1 at lines 1 – 9 in his defence in chief also said:
“I did not ask the plaintiff to travel to Onitsha to raise for money. They went to Onitsha on their own. They paid N60,000.00 to Onitsha for three of them that is too much for even twenty persons. The four persons who travelled to Onitsha cannot pay that amount. One of them called Patrick Obodoeze said he did not travel to Onitsha to source for money. I did not authorize the plaintiffs to travel to Onitsha so I do not know anything about it.
I have nothing to do with I.D.I. that is between the plaintiffs and person who gave them the loan. I am not a party to that.”
It is pertinent to restate that Exhibit I.D.I. is the agreement in respect of the loan and which was entered into on the 8th October, 2002 and admitted as such exhibit at page 135 of the record. The reproduction of the contents state as follows:
“I MR PIUS OKEKE, a businessman at Onitsha No. 20A Alta Road Nkpor Anambra State give the sum of Three Million naira (N3,000,000.00) to MR. GODWIN OBODOEZE and BASIL OKEKE of No. 16 Ahmadu Bello Way Jos, Plateau State for the building of shopping complex in Gada Biu Jos for a period of one month. To return the money with the sum of Five Hundred Thousand Naira (N500,000.00) as my own profit in the project as agreed. Total money to be returned is Three Million Five Hundred Thousand naira (N3,500,000.00)
Sign:…
MR. PIUS OKEKE
(GIVER)

Sign:…
GODWIN OBODOEZE
RECEIVER)

Sign:…
BASIL OKEKE
(RECEIVER)

Sign:…
CHIEF CHRISTOPHER
OKPONGWU
(GIVER’S WITNESS)

Sign:…
LIVINUS CHIANU-MBA
(RECEIVEPRS’ WITNESS)

At page 140 of the record of appeal, the appellant was cross examined on the document and of page 144 reproduced supra, he also personally took up the said exhibit in his examination in chief. In the case of N.E.C. Wodi (1989) 2 NWLR (Pt 104) 444 at 453 Kolawole JCA held and said:
“ordinarily, secondary evidence of the existence, condition, contents of a document may not be given in evidence under the conditions stipulated in section 96 of the Evidence Act, but when the person against whom the contents of the document are to be proved, has himself produced and tendered the secondary evidence, that document is elevated to the status of primary evidence and the court is entitled to make use of the evidence and the document is legally admissible in evidence”.
As rightly submitted by the learned respondents’ counsel, the agreement Exhibit IDI speaks for itself. In otherwords, it is not shown to come from a money lender especially where it was not stated that the lender was to be a professional money lender or that money lending is his sole business. As a consequence therefore, the law of licensed money lender is inapplicable. In the case of Idika V. Uzoukwu (2008) 9 NWLR (Pt 1091) 34 at 54 Galadima JCA (as he then was) held and said:
“it can be seen clearly from section 2 of the Money Lenders Law (supra) that it defined in no uncertain terms what the term “money lender” means or rather who a money lender is. Taken as if is without the exceptions listed in paragraphs (a) – (c) thereof, a money lender is simply any person whose business is money lending.”
At pages 167 and 169 of the Record of Appeal, the learned trial judge in his judgment held as follows:
“It is necessary to make if clear to the defendant that this court is being urged to order the defendant to pay the sum of N500,000.00 interest that the plaintiff paid to Mr. Okeke because it was the defendant based on his agreement with plaintiffs to develop his land that caused them to borrow N3,000,000.00 for the development, and instant payment of N1,000,000 to the defendant. That amount is a part of various sums of money the plaintiff expended to execute the transaction which was terminated. The payment being sought is, therefore based on breach of agreement between the defendant and plaintiffs by actions of the defendant…
In the light of the foregoing authorities, the defendant is hereby ordered to pay the plaintiffs the sum of N803, 910.00 (Eight Hundred and Three Thousand, Nine Hundred and Ten Naira) being the expenses incurred by plaintiffs due to the defendant’s unilateral breach of contract entered between them in August 2002 for leasing and management of the defendants property situate at Plot BP 667, Polo Round About, Jos.
The defendant is also ordered to pay the plaintiffs 21% interest per annum from October, 2002 to today, and thereafter 10% interest per annum from today until total liquidation of the judgment debt”.
The conclusion arrived of by the trial court would stand a firm gripping ground when examined in the light of the following various decided authorities: In other words in the case of Comm. For Works, Benue V. Devcon Ltd. (1988) 3 NWLR (Pt 83) 407 His Lordship Karibi-Whyte, J.S.C. at page 421 held thus and said:
“…Among the several recognized forms of breach repudiation by either party of his obligations under the contract is an accepted method of discharge of contract. Repudiation occurs when a party by words or conduct conveys to the other party that he no longer intends to honour his obligations in the agreement when they fall due. Repudiation which may either be express or implicit operates as an immediate breach and discharges the person repudiating from his obligations in the contract – see Mersey Stell & Iron Co. V. Naylor Benzon & Co. (1884) 9 App CAS. 434. When it is established that a party has made his intention clear beyond doubt that no longer to prefer his side of the bargain, there is a breach of contract.”

It is also trite law that with the respondents having done all that they were required to do in the transaction, the consequential repudiation by the appellant had given them the legal right to enforce. Relevant and on the point is the case Anaeze V. Anyaso (1993) 5 NWLR (Pt 291) 1 at 26 wherein Karibe-Whyte, JSC again held:
“It is now trite that a party seeking to enforce the performance of a contract must show that all conditions precedent to such performance have been performed by him, or is ready and willing to perform all the terms which he ought to have performed. See Australian Hanwoods Property Ltd. V. Commissioner for Railways (1961) 1 All ER 737 particularly at 747. Where there is a valid enforceable contract and one of the parties thereto defaults in performance, as in this case, the other party has two options:
a) insists on the actual performance of the contract or
b) seek damages for breach
The law takes the view that, for a breach of contract for the sale of land, damages cannot usually be an adequate remedy and the purchaser is entitled to have the contract specifically performed.”
As rightly submitted on behalf of the respondents all they are asking for are the various sums of money they expended to execute the transaction up to the stage the appellant terminated it. They were neither asking for anticipated profit nor for general damages. In the case of Ibro Hotels Ltd. V. Hotel Support Services Ltd. (2001) 8 NWLR (Pt 714) 174 Oduyemi JCA at page 186 held and said:
“The principle of law relating to damages as compensation for breach of contract is that subject to a few controls, the parties to a contract may themselves specify in their contract the remedy available to the innocent party following the other s breach. In the absence of any such ‘tailor made’ clause on the remedy, the law on damages fills the gap with standard-form provisions on the assessments of money compensation which applies to all forms of contract. Damages for a breach of contract committed by the defendant are a compensation to the plaintiff for the damage, loss or injury he has suffered through that breach. He is as far as money can do if, to be placed in the same position as if the contract had been performed. This implies a ‘net-loss’ approach in which the gains made by the plaintiff as the result of breach (e.g. savings made because he is relieved from performing his side of a contract which has been terminated for breach, savings in taxation, benefits obtained from partial performance, or the salvage value of something left in his hands) must be set off against his lasses from the breach (after he has taken reasonable steps to minimize his losses)”.
Further authority on assessment of damages by the learned jurist Karibi-Whyte JSC is the case of Ijebu-Ode LG V. Adedeji Balogun & Co. (1991) 1 NWLR (PT 166) 136 wherein at page 158 his Lordship held and said:
“In cases of breach of contract assessment of damages is calculated on the loss sustained by the injured party which loss was either in the contemplation of the contract or is an unavoidable consequence of the breach.
See Shell B.P. V. Jammal Engineering Ltd. (1974) 4SC 33, 1 All NLR (Pt 1) 542.”
Nnaemeka – Agu, JSC (of blessed memory) also in the case of Okongwu V. N.N.P.C. (1089) 4 NWLR (Pt 115) 296 at 309 held and said:
“…the principle of assessment of damages for breach of contract which has been applied by the court is restitution in intergrum – that is, that in so far as the damages claimed are not too remote, the plaintiff shall be restored, as far as money can do it, into the position in which he would have been if the breach had not occurred…”

The object of awarding damages for breach of contract is to serve the purpose of putting the injured party in so for as money can do it, in the same position as if the contract had been performed. The underlying factorial deduction is not to award more damages than the loss suffered. The assessment is therefore to take into account the loss which was actually sustained as the natural and direct consequences of the act complained of. See also the cases of Okeke V. Oche (1994) 2 NWLR (Pt 329) 688 and A.C.B. V. Adebesin & Co. Ltd. (1999) 1 NWLR (PT 585) 13.
On the totality from the guiding principles thereof, His Lordship Ogundare, JSC (of blessed memory) made the following Pronouncement in the case of Kusfa v. United Bawo Const. Co. Ltd. (1994) 4 NWLR (Pt 336) 1 at 12 and said:
“…if the rules above stated are applied, the plaintiff would only be entitled to the value of the work actually done by him plus the loss of profit on the work he was deprived of doing by the defendant’s breach of their contract. In this appeal the liability of the defendant for breach of contract is not in dispute.”
Having regard to the facts on the pleadings of the parties, and upon which this appeal is predicated, the learned trial judge I hold cannot be faulted on the conclusion arrived thereat on his judgment of Pages 167 and 169 of the record of appeal earlier reproduced supra. In other words I would repeat the view held by His Lordship Ogundare, JSC in the case of Kusfa V. United Bawo Const. Co. Ltd supra wherein he said:-
“In this appeal the liability of the defendant for breach of contract is not in dispute”.
In the some vein and applying the principle followed by his Lordship I also so hold in the case of hand and resolve the said issue against the appellant.
On the totality of this appeal with all the three issues having been resolved against the appellant, I hold that some is devoid of any merit and is hereby dismissed. The judgment of the trial High Court of Justice Plateau State delivered on the 25th November, 2005, is hereby affirmed and upheld. With costs following events, I will assess and award the sum of N50,000 against the appellant and in favour of the respondents.

Appeal is dismissed with N50,000.00 costs.

JUMMAI HANNATU SANKEY, J.C.A.: I read before now the Judgment just delivered by my learned brother, Ogunbiyi, J.C.A. I agree with him that there is no merit in the Appeal.
The Appellant challenges the award of damages to the Respondents by the learned trial Court in the sum of N500,000.00 for breach of contract. This sum is in respect of the expenses incurred by the Respondents in view/anticipation of the contract between the parties. The evidence before the lower Court revealed that the Respondents approached a third party, a businessman in Onitsha, who gave them a loan of N3,000,000.00 with an undertaking from them to pay back the loan with an additional N500,000.00 within one month. The Appellant himself introduced this agreement into evidence when he not only cross-examined on it, but personally took up the document, then I.D.I, in his examination in chief. This agreement is at page 64 of the Record, and it speaks for itself.
A party which seeks to enforce the performance of a contract is required to show that all conditions precedent to such performance had been performed by him. Where there is a valid contract and one of the parties thereto defaults in performance, the party aggrieved can either insist on the actual performance of the contract or seek damages for breach. See Anaeze v. Anyaso (1993) 5 NWLR (pt. 291) 1. The Respondents chose to go down the second road, and so adduced sufficient evidence in proof of their claim for breach of contract against the Appellant. As the learned trial Judge rightly held at pages 167-168 of the Record thus:
“It is necessary to make it clear to the Defendant that this Court is being urged to order the Defendant to pay the sum of N500,000.00 interest that the Plaintiff paid to Mr. Okeke because it was the Defendant based on his agreement with the Plaintiffs to develop his land that caused them to borrow N3,000 000.00 for the development, and instant payment of N1,000,000.00 to the Defendant.”
The award of damages by the lower Court, in this regard, seeks to restore the Respondents, as far as money is concerned, to where they were before the agreement to enter into the contract i.e. to refund the money they were induced to spend by the Appellant. See ACB. V. Adebesin & Co. Ltd. (1999) 1 NWLR (pt. 585) 13 @ 21-22; Okeke v. Oche (1994) 2 NWLR (Pt. 329) 688 @ 702.
Consequently, for these reasons and the fuller reasons in the lead Judgment, I find the Appeal unmeritorious. It is accordingly dismissed. I affirm the Judgment of the High Court of Justice, Plateau State and I endorse the order as to costs.

PHILOMENA MBUA EKPE, J.C.A.: I have listened to the well considered and erudite judgment of my learned brother Clara Bata Ogunbiyi, JCA in this appeal. I have nothing more to add than to agree with the reasoning and conclusion therein, that the appeal is unmeritorious and is hereby accordingly dismissed.
I too affirm the judgment of the trial Court of Justice, Plateau State delivered on the 25th day of November, 2005. This appeal is hereby dismissed with N50, 000.00 Cost against the Appellant and in favour of the Respondents.

Appearances

Dr. Garba Tetengi Esg. with Adenike Bello (Miss)For Appellant

AND

Christy HwyereFor Respondent