PATNASONIC INDUSTRIES LIMITED v. ARCHIBONG BASSEY ESQ
(2019)LCN/12786(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of March, 2019
CA/A/199/2015
RATIO
CONTRACT: WHETHER PARTIES ARE BOUND BY TERMS OF AGREEMENT
“The law is firmly established that parties are bound by the terms of the agreement. In A-G RIVERS V. A-G AKWA IBOM (2011) 8 NWLR (PT 1248) 31, it was held that: ‘Where parties have entered into a contract or an agreement voluntarily and there is nothing to show that same was obtained by fraud, mistake, deception or misrepresentation, they are bound by the provisions or terms of the contract or agreement. This is because a party cannot ordinarily resile from a contract or agreement just because he later found that the conditions of the contract or agreement are not favourable to him. This is the whole essence of the doctrine of sanctity of contract or agreement. Moreover, a Court of law must respect the sanctity of the agreement reached by the parties, where they are in consensus ad idem as regards the terms and conditions freely and voluntarily agreed upon by them and expressed in a written form.'” PER ABDU ABOKI J.C.A.
Justice
ABDU ABOKI Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
Justice
PATNASONIC INDUSTRIES LTDAppellant(s)
AND
ARCHIBONG BASSEY ESQ.Respondent(s)
ADAMU JAURO, J.C.A. (Delivering the Leading Judgment):
The appeal herein emanated from the decision of the Federal Capital Territory High Court of Justice Abuja, delivered in Suit No. FCT/HC/CV/275/2011 by Hon. Justice A. A. L Banjoko on 9th December, 2013.
The facts of the case as can be gleaned from the record, were that the Respondent as plaintiff initiated this action, against the appellant as the Defendant before the lower Court. The suit was initially brought under the Undefended List procedure.
However, after considering the facts deposed to by the parties, the suit was transferred to the General Cause List and the lower Court ordered parties to file fresh pleading. The Plaintiff/Respondent pleaded that sometimes in 2009, he applied for a unit of 3 – bedroom detached bungalow located within the Defendant’s Estate at Mbora Jabi District of Abuja, FCT. The Defendant considered his application and made him an offer. The disposal price for the bungalow was Fifteen Million Naira (N15,000,000.00k) and he paid the sum of Ten Thousand Naira (N10,000.00k) as application fee. On the 9th of December, 2009 he paid the sum of Five Hundred Thousand Naira (N500,000.00k) as initial deposit, and a later payment of the sum of One Million Naira (N1,000,000.00k) on the 22nd of January, 2011 for the bungalow.
On the 12th of May 2011, when he made a visit to the Defendants office, he was surprised to discover that the bungalow sold for Twenty Million Naira (N20,000,000.00k). Realizing this new price, he wrote to the Defendant on the 13th of May 2011, demanding refund of all the monies he had paid for the bungalow because he could not afford the new price. The Defendant never refunded his money and that prompted him to write another letter of demand through his Solicitors dated the 7th day of September, 2011. In reply, the Defendant wrote on the 12th of September, 2011 acknowledging that he had paid the sum of One Million, Five Hundred Thousand Naira (N1,500,000.00). Till date the Defendant has not paid this money after several demands, and their act had deprived him of the opportunity of buying another property. The plaintiff/Respondent sought the following reliefs from the lower Court:
1. A refund of One Million, Five Hundred Thousand Naira only (N1,500,000.00k) being the money the plaintiff paid as part payment to the Defendant for the one (1) unit of 3 – bedroom bungalow belonging to the Defendant’s estate located at Mbora, Jabi District, Abuja, FCT.
2. Twenty one per cent (21%) interest rate of the judgment sum per annum from the date of Judgment till the final liquidation of the Judgment sum.
3. A Declaration that the act of unilateral upward review from N15,000,000k to N20,000,000.00k for the one (1) unit of 3 – bedroom detached bungalow allocated to the Plaintiff by the Defendant amounts to a breach of contract.
4. The sum of N15,000,000.00k as general damages for the refusal of the Defendant to refund the plaintiff his money despite series of verbal and written demands both by the Plaintiff and his solicitors and for detaining the Plaintiff’s money thus making him to lose an opportunity offered him elsewhere to buy another house.
5. The cost of this action.
In their Statement of Defence, the defendant/appellant pleaded that on the 9th of December, 2009, it made a provisional offer setting out the terms of the offer which was signed by C. O. Ogwumike, the Company Secretary.
However, the Plaintiff was unable to accept and perform his obligation as contained in the Provisional Offer. On the 13th of May, 2011, he wrote to the Managing Director demanding to have a refund of the sum of One Million, Five Hundred Thousand Naira (N1,500,000.00k) on account of breach of contract. In its Customer’s Ledger covering a period from the 1st of January, 2010 to 12th of May, 2011, the Plaintiff had paid that sum of money as at January, 2010 but he paid it after the expiration of thirty (30) days contrary to the Provisional Offer, which also did not make any provision for part payment. The price hike on the Property from Fifteen Million Naira (N15,000,000.00k) to Twenty Million Naira (N20,000,000.00) was made after the expiration of the thirty (30) days as envisaged by the Provisional Offer, which took into account a shift in market forces.
It further stated that the Plaintiff’s claim was neither a debt nor pecuniary in nature, but that of non-compliance with the Provisional Offer. The Provisional offer they made to him might have been a contract of sale equal to a full allocation if the sum of Fifteen Million Naira (N15,000.000.00k) less the One Million, Five Hundred Thousand Naira (N1,500,000.00k) which had been paid. As the Respondent paid One Million, Five Hundred Thousand Naira (N1,500,000.00k) the defendant queried how did he arrive at the sum of Fifteen Million Naira (N15,000,000.00k) as damages without providing particulars for it? In conclusion, it denied being indebted to the Plaintiff in the sum of Fifteen Million Naira (N15,000,000.00k) or by any other sum whatsoever. In addition, they counterclaimed against the respondent and prayed for the following reliefs, namely:
i) “A DECLARATION that the plaintiff/Defendant to the Counterclaim is in breach of its obligations to the Defendant/Counterclaimant as contained in the Provisional Letter of Allocation of one (1) unit of 3 Bedroom Detached Bungalow House from the Defendant to the Plaintiff.
ii) AN ORDER directing the Plaintiff/Defendant to the Counterclaim to pay damages in the sum of N20 Million to the Defendant/Counterclaimant.
iii) AN ORDER Directing the plaintiff/Defendant to the Counterclaim to pay to the Defendant/ Counterclaimant interest on (ii) above at the rate of 4% above the Central Bank of Nigeria Monetary Policy Rate per annum from 9th of December, 2009 till the date judgment is delivered; and thereafter on the whole judgment debt at the rate of 10% per annum from the date of judgment until the whole judgment Debt is finally satisfied or liquidated.”
The judgment of the lower Court was delivered on 2nd December, 2013 wherein the learned trial judge held as follows:
1. “The Plaintiffs is entitled to the immediate refund of the sum of One Million, Five Hundred Thousand Naira only (N1,500, 000.00k) being the money paid as part payment to the Defendant for the sale of one (1) unit of 3- bedroom bungalow belonging to the Defendant’s estate located at Mbora, Jabi District Abuja, FCT. This leg of claim is found to be meritorious after being proven and especially after the admission by the defence of its indebtedness in this regard.
2. As regards the claim for Twenty one per cent (21%) interest rate of the judgment sum per annum from the date of judgment till the final liquidation of the judgment sum. There was no part of the agreement entered into by the parties that showed that this was agreed upon by the parties in the event of a breach, nor did the agreement show that this was an anticipatory claim or an established mercantile custom in respect to sale for houses. How this claim for 21% was arrived at, is best left to their own imagination but the justification was not proved before this Court…
The claim for 21% interest was unforeseeable and is not justified before this Court. In any event, by Paragraph 1 (iv), of the Contract, it was understood that any deposit made, may be refunded without attracting any interest. So the parties clearly by express agreement signed away the right to calculate and refund any interest on deposits made. However, the Court has inherent powers by the provision of Order 39 Rule 7 to make an Order for 10% interest per annum, on the sum paid from the date of this judgment until final liquidation of the judgment sum.
As regards the reliefs sought for a declaratory relief declaring the act of unilateral upward review from N15,000,000.00k to N20,000,000.00k for the one (1) unit of 3-bedroom detached bungalow allocated to the Plaintiff by the Defendant as amounting to a breach of contract, ….this prayer is accordingly refused and dismissed.
As regards the claim for the sum of N15,000,000.00k as general damages for the refusal of the Defendant to refund the plaintiff his money despite series of verbal and written demands, …. the Court will award general damages in the sum of N500, 000.00k. As regards the cost of this action, it is clear that had the defendants refunded the sum deposited as claimed, this action would have been pointless and the plaintiff had to incur some costs in seeking to recover his money. Therefore, a cost of N200, 000.00k is accordingly awarded.
As regards the counterclaim for:
i) A DECLARATION that the Plaintiff/Defendant to the counterclaim is in breach of its obligation to the Defendant/Counterclaim as contained in the Provision Letter of Allocation of one (1) unit of 3 Bedroom Detached Bungalow House from the Defendant to the Plaintiff. On this, this claim would have been valid had the defendants not condoned the breach and accepted and continued to prompt the plaintiff for further payments. This Declaration is accordingly refused and dismissed.
ii) An Order directing the Plaintiff/Defendant to the counterclaim to pay damages in the sum of N20 Million to the Defendant/Counterclaimant This order is accordingly refused, as the Plaintiff in this counter-claim has not shown the Court what damages they incurred more especially as they stated they had sold off the property and so did not suffer any loss. This leg of claim is accordingly dismissed.
iii) An Order directing the Plaintiff/Defendant to the Counterclaim to pay to the Defendant/Counter-claimant interest on (ii) above at the rate of 4% above the Central Bank of Nigeria Monetary Policy Rate per annum from 9th of December, 2009 till the date judgment is delivered; and thereafter on the whole judgment debt at the rate of 10% per annum from the date of judgment until the whole judgment Debt is finally satisfied or liquidated.
This order is accordingly refused and dismissed for the following reason.
It is ridiculous as unjustified and not within the contemplation of the parties. Finally, judgment is entered in favour of the Plaintiff and the Defendant/Counterclaimant’s action is accordingly refused and dismissed.”
Dissatisfied with the aforementioned decision, Appellant filed notice of appeal before the lower Court on 7th February, 2014.
The notice of appeal was amended by the order of Court, and was deemed amended on 30th January, 2018. The amended notice of appeal contained six grounds of appeal and their particulars. The Appellant sought the Court to allow the appeal and set aside the judgment of the lower Court. The record of appeal was compiled and deemed transmitted to the Court on 30th January, 2018.
Pursuant to the said notice of appeal, parties filed and exchanged their briefs of argument in accordance with the rules of Court. The Appellant’s brief of argument settled by Hammed O. Ogunbiyi Esq., is dated 9th April, 2018 and deemed filed on 26th September, 2018. The Appellant also filed Appellant’s Reply brief dated 12th December, 2018 and deemed filed on 14th January, 2019. The Respondent’s brief of argument on the other hand was settled by Victor C. Chimezie Esq., and is dated 25th October, 2018 and filed the same date. The appeal was heard on 14th January, 2019. The Appellant was represented by Hammed Ogunbiyi Esq., with Ajuma Isah Esq., who adopted the Appellant’s brief and reply brief and urged the Court to set aside the judgment of the lower Court.
The Respondent for his part was represented by Victor C. Chimezie Esq., who also adopted the Respondent’s brief of argument and prayed the Court to dismiss this appeal, with substantial cost and uphold the decision of the lower Court.
From its six grounds of appeal, Appellant’s counsel distilled four issues for determination as follows:
1. “Whether the Respondent had a reasonable cause of action (Ground 1).
2. Whether the Appellant can review the purchase price without recourse to the Respondent (Ground 4).
3. Whether the Respondents payment of N1,000,000.00k after the expiration of 30 days ultimatum and upward review of the purchase price to N17,000,000.00k does not amount to acceptance by conduct. (Ground 5)
4. Whether the Respondent is entitled to damages or reliefs sought at the lower Court. (Grounds 2, 3 and 6).”
The Respondent formulated three issues for determination as follows:
a) ‘Whether considering “paragraph 1 (iv) of Exhibit A”, the Respondent is not entitled to the refund of the sum of N1,500,000.00 (One Million Five Hundred Thousand Naira) only, by the Appellant being the total amount deposited for the purchase of one (1) unit of 3 Bedroom Detached Bungalow at their Patnasonic Estate Nbora Jabi District Abuja.
b) Whether considering the attitude of the Appellant, the Respondent is not entitled to damages against the Appellant for wrongfully withholding his money.
c) Whether this appeal is not an abuse of Court process in view of the Appellant’s testimony before the Court below.
The law is settled that the essence of the formulation of issues is to reduce the grounds of appeal into terse, compact formulations which take cognizance and consideration of the same issues running through more than one ground of appeal. See Sanusi Vs Ayoola (1992) NWLR (part 265) 275. To this end, where issues for resolution in an appeal are formulated by the parties, an appellate Court can adopt, reframe or reformulate its own which are, in its opinion proper for the determination of the appeal. See Aduku Vs Adejoh (1994) 5 NWLR (part 349) page 582 and Dung Vs Gyang (1994) 8 NWLR (part 362) page 315. In Edem Vs Canon Balls Ltd & Anor (2005) 12 NWLR (part 938) 27, the Supreme Court stated the circumstance when a Court can reframe issues for determination, thus per Oguntade JSC (as he then was);
“Notwithstanding the fact that there is power in the Court of Appeal to reframe issues for determination in an appeal before it, it is to be stressed that such power falls to be exercised only in very limited circumstances which included the following;
1) Where the grounds of appeal raised are repetitive with the result that issues formulated from them also are repetitive.
2) Where the issues formulated do not flow from the grounds of appeal raised,
3) Where the issues are poorly crafted in an appeal where the grounds of appeal are explicit.
4) Where issues framed have been unnecessarily fragmented with the result that multiple issues are framed by parties.
From the circumstance of this case and the grounds of appeal herein, the issues in this appeal can be summarized as follows:
1) Whether the Respondent had a reasonable cause of action to warrant him entitled to the refund of the sum of N1,500,000.00k by the Appellant being the total amount deposited for the purchase of one (1) unit of 3 bedroom detached bungalow from the Appellant.
2) Whether the lower Court rightly awarded the sum of N500,000.00k as damages and N200,000.00k as costs of action in favour of the Respondent.
ISSUE ONE
Whether the Respondent had a reasonable cause of action to warrant him entitled to the refund of the sum of N11,500,000.00k by the Appellant being the total amount deposited for the purchase of one (1) unit of 3 bedroom detached bungalow from the Appellant.
In arguing this issue, learned counsel for the Appellant submitted that the statement of claim, the document in support of the claim and the deposition of the witness to the claim disclose on the face of it what has caused or brought into existence the action which the claimant is complaining about against the defendant. He referred to Atoyebi Vs Barclays Bank Plc (2016) 15 NWLR (part 1534) 34; Nigerian Ports Plc Vs S.E.S Ltd (2016) 17 NWLR (part 1541) 191 at page 208 paragraphs B – D. Learned counsel submits that the Respondent did not establish his claim on the upward review from N15,000,000.00k to N20,000,000.00k as claimed, and the judgment of the lower Court was not based on same.
He contended that the Respondent cannot approbate and reprobate at the same time, for the pleadings and evidence of the Respondent at the lower Court contradicts themselves and the Court is not allowed to go on voyage of discovery when the Respondent did not set his facts straight. Counsel argued that when a claimant cannot establish his claims based on the statement of claim and evidence adduced, such suit is bound to be struck out. He said the lower Court rather than striking out the suit, found its judgment on upward review of N17,000,000.00k not put forward by the claimant.
It was further contended that the appellant having reviewed the purchase price after the expiration of 30 days and did informed the Respondent when he visited the Appellant’s office and the Respondent paid N1,000,000.00k after the due date, it goes to show that the Respondent acted on the upward review by the Appellant. He submits that the Respondent is barred due to estoppel by conduct to bring any suit for breach of contract when he knows the terms he agreed to, in making the Appellant to believe that he agrees with the new purchase price of the property when he paid N1,000,000.00k on the 22nd January, 2011.
Learned counsel further maintained that where a man by word or conduct willfully made a representation of a state of facts to another and thereby induced that other to believe that the state of things were as represented by that person and that other took him by his word or action and acted upon that representation either by himself or his representative in interest cannot turn around to say or behave as if the state of things were not as he represented them. That he will be estopped from asserting the contrary. Reliance was placed on the case of Silas Okoye Okonkwo & Ors Vs Chief Agogbna Kpajie & Ors (1992) 2 NWLR (part 226) 633. Counsel contended that the representation of the Respondent made the Appellant believe that he will continue with the contract and thereby caused the Appellant continued approach for the balance of the purchase price. He urged the Court to uphold the argument of the Appellant and resolve this issue in its favour.
Learned counsel for the Respondent submitted that parties are bound by their agreement. He said by paragraph 1 (iv) of Exhibit A on page 5 of the record of appeal, parties agreed that any deposit made is refundable. That the Respondent made a deposit payment of N1,500,000.00k (One Million Five Hundred
Thousand Naira) only and that since he did not complete his payment within the stipulated period, by the said clause 1 (iv), the Appellant is entitled to be refunded. Counsel submitted that the Appellant has no legal basis to hold unto the Respondent’s money, having asserted that the Respondent made the last payment of N1,000,000.00k after the expiration of the offer made to him.
On the Appellant’s submission that the subsequent payment of the sum of N1,000,000.00k after the expiration of the offer made to him by them amount to the Respondent accepting the reviewed price, learned counsel submitted that the Appellant’s submission on this point is founded on nothing. He submits that assuming without conceding that the subsequent payment by the Respondent for the sum of N1,000,000.00k (One Million Naira) only, after the expiration of the offer made to him by the Appellant amounted to accepting the reviewed price, the Respondent would still be entitled to a refund of the money he deposited with the Appellant since the said amount of N1,000,000.00k (One Million Naira) only, does not represent the full and final payment.
He referred to clause 2 of Exhibit A, on page 51 of the record of appeal. Learned counsel further maintained that parties are bound by their agreement and cannot renege on their contractual obligations, and the Courts are enjoined to give life to the wishes of the parties. He referred to the case of Afrilec Ltd Vs Lee (2013) NWLR (part 1349) page 14 at page 14 – 15. In concluding counsel argued that the Respondent is entitled to a refund of the sum of N1,500,000.00k (One Million Five Hundred Thousand Naira) only, being the amount of money deposited by the Respondent with the Appellant for consideration that failed.
The Appellants contention under this issue is that the Respondent’s action before the lower Court did not disclose cause of action and therefore the Respondent is not entitled to a refund of his money paid to the appellant, for the purchase of one unit of 3 bedroom detached bungalow from the Appellant. A cause of action has been defined by Courts to mean a combination of facts and circumstances giving rise to the right to file a claim in Court for a remedy. It includes all things which are necessary to give a right of action and every material fact which has to be proved to entitle the plaintiff to success. See UBN Vs Umeoduagu (2004) 13 NWLR (part 890) 352. In the case of Bakare Vs N.R.C (2007) 17 NWLR (part 1064) 606, the Supreme Court held that a cause of action is made up of two factors, that is, the wrongful act of the defendant and the consequential damage occasioned to the plaintiff. See also Yusuf Vs Co-operative Bank Ltd (1994) 7 NWLR (part 359) 676; Dantata Vs Mohammed (2000) 7 NWLR (part 664) 176; Union Bank of Nigeria Ltd Vs Penny – Mart Ltd (1992) 5 NWLR (part 240) 228. Therefore to determine whether a plaintiff’s claim discloses a cause of action suitable to be tried, it is necessary only to have regard to the claim of the plaintiff which alone determines whether the claim brought before the Court is justiciable. See Ogbimi Vs Ololo (1993) NWLR (part 304) 128.
The Plaintiff’s claim in this case by his statement of claim is anchored on the unilateral upward review of the cost of a unit of 3 – bedroom flat offered to him by the defendant from N15,000,000.00k to N20,000,000.00k and the failure of the Defendant/Appellant to refund the money he paid to the Appellant despite several demands.
The relationship entered between the Appellant and the Respondent is regulated by a written document which is Exhibit “A”. The law is that written agreement freely entered into by the parties is binding on them. A Court of law is equally bound by the terms of any written agreement entered into by the parties. Where the intention of the parties to a contract is clearly expressed in a document, the Court cannot go outside that document to give effect to the intention of the parties. The general principle is that where the parties have embodied the terms of their contract in a written document, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument. See Okonkwo Vs C.C.B (Nig) Plc (1997) 6 NWLR (part 507) page 48; Dalek (Nig) Vs Ompadec (2007) 7 NWLR (part 1033) page 402; UBN Ltd Vs Ozigi (1994) 3 NWLR (part 333) page 385 at page 404; Nneji Vs Zakhem Con. (Nig) Ltd (2006) 12 NWLR (part 994) page 297 SC; UBN Ltd Vs Sax (1994) 8 NWLR (part 361) page 402.
For clarity and ease of reference, Exhibit A is hereunder reproduced:
December 9, 2009
Ref. No, PIL/10/001/
Archibong Bassey Esq.
Securities and Exchange Commission Abuja
Dear Sir,
Following your application for one (1) unit of 3-Bedroom Detached Bungalow at our Patnasonic Estate, Jabi District, Abuja, FCT and in consideration of your deposit of Is N500,000.00k (Five Hundred Thousand Naira) you are hereby offered House No. 36, Peter Chidolue Crescent, Patnasonic Estate, Nbora, Jabi District, Abuja upon the following terms and conditions:
i) The disposal fee is currently Fifteen Million Naira (N15,000,000.00k leaving a balance of N14,500,000.00k (Fourteen Million Five Hundred Thousand Naira).
ii) Application form fee of Ten thousand naira (N10,000.00k)
iii) The price is subject to review before payment.
iv) Any deposit made, may be refunded without attracting any interest.
v) This letter of offer is not transferable.
2. If the offer is acceptable to you. Please forward your bank draft for the above sum in favor of Patnasonic Industries Limited within thirty (30) days of the date of this offer, to enable us issue you with a formal letter of allocation. Failure to pay within the time stipulated above would result to the allocation of the property to other applicants without further recourse to you.
3. Other terms and conditions of allocation will be detailed in the subsequent letter of allocation and agreement.
Yours faithfully,
PATNASONIC INDUSTRIES LIMITED
C. O. OGWUMIKE
For Executive Chairman.”
From the content of the above exhibit though the Appellant reserves the power to review the prize of the property before payment, the document made it clear that any deposit made, may be refunded. The exhibit also made it clear that if the offer is acceptable to the Respondent, he is to forward a bank draft for the sum agreed to the Appellant within 30 days of the offer. The document further provides that failure of the Respondent to pay the sum provided within the time stipulated, would result in the allocation of the property to other applicants.
It is clear in this case that the respondent did not comply with the said 30 days period. The Appellant therefore was entitled to dispose the property in question in line with the conditions in the allocation letter Exhibit ‘A’. However, the Appellant has no legal right whatsoever, to retain the Respondent’s sum of N1,500,000.00k under the said document (Exhibit “A”). In my humble view, the lower Court was right when it granted this leg of claim to the Respondent. The lower Court’s decision in this respect cannot be faulted and is hereby upheld. This issue is hereby resolved against the Appellant and in favour of the Respondent.
ISSUE TWO
In arguing this issue, learned counsel for the Appellant submitted that the object of an award for damages is to give compensation to the Plaintiff for the damages, loss or injury which he has suffered. That for the damages to be awarded, there must be a wrong committed. He referred to Adene Vs Dantunbu (1994) 2 NWLR (part 328) 509. He submits that in the instant case, the appellant did not breach the contract between the parties. He contended that the award of N500,000.00k as general damages by the lower Court against the Appellant does not flow from the findings of the Court and such cannot stand.
It was argued that assuming without conceding that the Respondent is entitled to damages, the Appellant is only to refund what the offer stipulates. Counsel submits that where parties by their agreement excluded or limited their liabilities, that is, fixed the amount which is to be paid by way of damages in the event of any breach, a Court will not go outside the contract in search of more palatable terms, for one of the parties to the detriment of the other party. He stated that a Court is bound to interpret the liability clause or clauses strictly as provided in the contract. He referred to the cases of Zakhem Construction (Nig) Vs Emmanuel Nenji (2006) 5 SC (part II) 78; N.U.B Ltd Vs Samba Pet Co. Ltd (2006) 12 NWLR (part 992) 98. Finally he urged the Court to hold that the limitation of liability clauses inures to benefit of the Appellant, and that the damages for the breach of contract is limited by the terms of offer. He also urged the Court to resolve this issue in favour of the appellant and set aside the judgment of the lower Court.
Learned counsel for the Respondent submitted that where there is a right, there is a remedy as expressed in the latin maxim Ubi Jus Ibi remedium and the case of Aliu Bello Vs Attorney General of Oyo State (1986) 5 NWLR (part 45) page 828. It was contended on the authority of Aliu Bello’s case and the evidence adduced before the lower Court on the failure, neglect and/or refusal of the Appellant to refund the Respondent his money since January, 2010 till the date of judgment 2nd December, 2013, entitles the respondent, to the remedy of general damages among other claims. He referred to the case of Taylor Vs Ogheneovo (2012) 13 NWLR (part 1316) page 46 at page 66.
It was further the submission of the learned counsel that general damages need not be specifically proved, as it naturally flows from the wrong complained of. He stated that it is always expedient to give some particulars, which will assist the Court in arriving at a just estimation. He referred to Taylor Vs Ogheneovo (supra), NNPC Vs Clifco Nig. Ltd (2011) LPELR 2022 (SC) page 26 paragraph F – G. On the strength of those authorities, counsel contended that the Court below was right to have awarded the sum of N500,000.00k as general damages and costs of suit at N200,000.00k. He urged the Court to uphold the judgment of the lower Court.
The only complain in issue two is the award of N500,000.00k as general damages in favour of the Respondent. It is well settled law that general damages are the kind of damages, which the law presumes to flow naturally from the wrong complained of. They are such as the Court will award in the circumstances of a case, in the absence of any yardstick with which to assess the award except by presuming the ordinary expectations of a reasonable man. See Yalaju Amaye Vs A.R.E.O Ltd (1990) NWLR (part 145) 422; Lar Vs Stirling Astaldi Ltd (1977) 11/12 SC 53; Dauda Vs Lagos Building Investment Company Ltd & Ors (2010) LPELR – 4024 (CA). The Respondent in this case has made several demands both verbal and written to the Appellant for the refund of his money deposited in accordance Exhibit ‘A’, but the Appellant failed to refund the said money to the Respondent. The Respondent having been denied use and access to his money for years, is at least entitled to some form of compensation.
The Appellant having flagrantly abuse its Exhibit ‘A’ by refusing to adhere to the terms contained therein, the lower Court rightly awarded the said sum of N500,000.00k as general damages to the Respondent, which is justified by the fact that the respondent had suffered physical losses from the omission of the Appellant. From the foregoing, this issue is resolved against the Appellant and in favour of the Respondent.
Having resolved the two issues for determination in this appeal against the Appellant, it is crystal clear that the appeal is devoid of any merit, same is hereby dismissed. The judgment of the lower Court delivered in Suit No. FCT/HC/CV/275/2011 by Hon. Justice A. A. I. Banjoko on 9th December, 2013 is hereby affirmed. There will be no order as to costs.
ABDU ABOKI, J.C.A.: I have had the privilege of reading before now, the lead judgment just delivered by my Learned Brother ADAMU JAURO, JCA. I adopt as mine, His Lordship’s reasoning and the conclusions arrived therein.
I am also in agreement that from the tone of Paragraph 1 (iv) of Exhibit A, the parties agreed that any deposit made may be refunded without attracting any interest.
The law is firmly established that parties are bound by the terms of the agreement.
In A-G RIVERS V. A-G AKWA IBOM (2011) 8 NWLR (PT 1248) 31, it was held that:
“Where parties have entered into a contract or an agreement voluntarily and there is nothing to show that same was obtained by fraud, mistake, deception or misrepresentation, they are bound by the provisions or terms of the contract or agreement. This is because a party cannot ordinarily resile from a contract or agreement just because he later found that the conditions of the contract or agreement are not favourable to him.
This is the whole essence of the doctrine of sanctity of contract or agreement. Moreover, a Court of law must respect the sanctity of the agreement reached by the parties, where they are in consensus ad idem as regards the terms and conditions freely and voluntarily agreed upon by them and expressed in a written form.”
See also AGROVET SINCHO PHAM LTD & ANOR V. DAWAKI & ORS (2013) LPELR 20364 (CA); ARJAY LTD. V. A.M.S. LTD. (2003) 7 NWLR (PT. 820) 577; SONA BREWERIES PLC. v. PETERS (2005) 1 NWLR (PT. 908) 478.
From the foregoing, I hold the view that the Respondent herein is entitled; vide Paragraph 1 (iv) of Exhibit A, to a refund of the deposit made.
For this reason and for the more articulated reasons proffered by my Learned Brother ADAMU JAURO JCA, I also find that this appeal is devoid of merit and ought to be dismissed. I accordingly dismiss same.
I subscribe to all the orders made in the lead Judgment.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, Lord Justice Adamu Jauro, JCA. I agree with the reasoning, conclusions and orders therein.
Appearances:
Hammed Ogunbiyi, Esq. with him, Ajuma Isah, Esq.For Appellant(s)
Victor C. Chimezie, Esq.For Respondent(s)
