ABDURRAUF BALA RABIU v. AUWALU AHMAD ZARA
(2019)LCN/12949(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 25th day of July, 2018
CA/K/590/M/2014
RATIO
DAMAGES: IS GRANTED BASED ON THE DISCRETION OF THE COURT
An award of damages is ordinarily within the realm of the discretion of the trial Court and an appellate Court can only interfere when:-the trial Court has acted under a mistake of law; the trial Court has acted in disregard of known principles of law or on no principle at all; the trial Court has acted under a mis apprehension of facts; the trial Court has taken into account irrelevant matters or failed to take account of relevant matters; the amount awarded is either ridiculously too low or ridiculously too high that it must have been a wholly erroneous estimate of damages; or in justice would result if the appeal court does not interfere. See ALLIED BANK VS AKUBUEZE (1997) 6 NWLR (PT. 509) 374; USONG VS HANSEATIC INTERNATIONAL LTD (2009) LPELR 3434 (SC); CBN VS AITE OKOJIE (2015) 14 NWLR (PT. 1479) 231.PER AMINA AUDI WAMBAI, J.C.A.
JUSTICE
IBRAHIM SHATA BDLIYA justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI justice of The Court of Appeal of Nigeria
Between
ABDURRAUF BALA RABIUAppellant(s)
AND
AUWALU AHMAD ZARARespondent(s)
AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): This appeal is in respect of a sale transaction of shop No. 16 Fagge ta Kudu Kantin Kwari Market, Kano which the Appellant as owner, after negotiations offered for sale and the Respondent agreed to buy at N26,000,000.00 (Twenty-Six Million Naira) only, to be paid in two instalments of initial N10 Million Naira and a second and final instalment of N16 Million Naira at the end of October, 2013. They executed a sale agreement. After making a total payment of N18.5 Million Naira in 3 instalments of N10.0m in 2013, and N1.0m and N7.5m respectively in January 2014, the Appellant without ejecting the tenants from the shops, which according to the Respondent is a condition precedent to the payment of the balance, sold the shop to a 3rd party and refused to accept the balance from the Respondent and deliver possession to him. This prompted the Respondent, as plaintiff to approach the lower Court asking the Court to declare as valid and subsisting the sale agreement between him and the Appellant and a further declaration that the subsequent sale to a 3rd party is null and void.
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He also prayed among others, for an order of specific performance compelling the Appellant to perform his part of the contract.
The Appellant denied the claim. As plaintiff, the Respondent called 3 witnesses and tendered some exhibits. The Appellant on his part as the defendant called 4 witnesses. The learned trial Judge upon the review of the evidence made some specific findings; that there was variation of Exhibit A (the sale agreement); that delay in payment of the outstanding balance is not enough to repudiate the whole contract after payment of more than 70% of the total purchase price; that the plaintiff (Respondent) having paid more than 70% of the purchase price, the Appellant ought to have allowed the agreement to be concluded. Premised on these findings the Court concluded thus:
In my final analysis, I hold that the plaintiff has made out a case against the defendant. On this premises, the defendant is hereby ordered to accept the outstanding payment of the balance of sale of the shops in dispute and to deliver possession of the said shops to the plaintiff .
Upset by the said decision, and orders of the lower Court,
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the Appellant commenced this appeal by a Notice of Appeal filed on 14/10/2016 attacking the decision on 3 grounds of appeal.
In the Appellant’s amended brief of argument settled by B.M. Mukaddam Esq. and filed on 16/10/2017 but deemed filed on 19/10/2017, 3 issues were distilled for determination namely:
1. Whether or not the lower trial Court was right to hold that failure to file reply to the statement of defence by the plaintiff does not amount to an admission.
2. Whether or not the lower trial Court was right for not acting on the undiscredited and unchallenged evidence of DW1, DW2 and DW 4 through the cross examination being conducted by the Respondents Counsel.
3. Whether or not the lower trial Court was right in validating the said transaction between the Appellant and the Respondent and making consequential order against the Appellant for the collection of the outstanding balance in the sum of Seven Million Five Hundred Thousand Naira (N7,500,000.00) only.
Learned A.S. Aikawa Esq. who settled the Respondent’s consequential amended brief of argument filed on 13/12/2017 raised 4 issues viz:
1. Whether the failure of the Respondent to file a Reply
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to the Appellants statement of defence amounts to an admission.
2. Whether the evidence of DW1, DW2 and DW4 are undiscredited and unchallenged.
3. Whether the lower Court was right in validating the transaction between the Appellant and the Respondent.
4. Whether the errors complained of by the Appellants constitutes the ground that will warrant this Honourable Court to reverse the decision of the lower Court.
The issues formulated by both Counsel which are substantially the same can be subsumed into the Appellant’s third issue as the sole issue for determination, which for precision and succinctness I shall reframe as follows:
Whether from the state of the pleadings and evidence, the lower Court was right in validating the sale transaction between the Appellant and the Respondent and in making the consequential orders it made.
It was submitted for the Appellant that considering the serious allegations of facts raised in paragraphs 2 16 of the statement of defence, the learned trial Judge was wrong to have held that the Respondent’s failure to file a reply to deny, controvert or dispute those facts does not amount to an admission.
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He cited in support the cases of ACHILIHU VS ANTONWO (2013) 12 NWLR (PT. 1368) 256 Ratio 15;PHILIPS VS E.O.C. IND. LTD. (2013) 1 NWLR (PT. 1336) 621, ratio 1 among others.
Parties, learned Counsel argued, are bound by their agreement and cannot go against the terms even if they turn out to be unfavourable, as decided in the case of ECONET WIRELESS NIG. LTD. VS ECONET WIRELESS LTD (2014) 7 NWLR (PT. 1405) 9.
He submitted that though a Court is not allowed to go outside the gamut of evidence before it to shop for materials to use in deciding the case before it as held in WASSAH VS KARA (2015) 4 NWLR (PT. 1449) 374, 383 Ratio 9, the learned trial Judge agreed that there was a variation in Exhibit A. Variation being the entry into a new term of contract by mutual agreement of both parties to alter the existing terms of the contract, as held in UNITY BANK PLC VS OLATUNJI (2015) 5 NWLR (PT. 1452) 203 AT 211. Learned Counsel wondered why the Judge would consider acceptance of the subsequent payment made by the Respondent as against the contents of Exhibit A as a repudiation of Exhibit A, and failed to be convinced and act
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upon the unchallenged and uncontroverted evidence of DW I, DW II, DW IV, that the default of payment of the balance of the purchase price in two days was a condition for the repudiation of the entire transaction. The Court was bound to act on the unchallenged evidence of these witnesses, he insisted, buttressing his position by the cases of ATAKPA VS EBETOR (2015) 3 NWLR (PT. 1447) 549, 555, and OKOROCHA VS P.D.P. (2014) 7 NWLR (PT. 1406) 213, 232 Ratio 22.
He argued that the reason for rejecting the evidence of these witnesses which the learned trial Judge gave as not being convincing, is based only on sentiments and speculation both of which have no pace in judicial adjudication. For this, he cited the cases of OGBONNA VS OGBUJI (2014) 6 NWLR (pt. 1403) 205 AT 216; F.R.N. VS SANI (2014) 16 NWLR (PT. 1433) 299, at 311.
On the propriety or otherwise of validating the sale transaction between the Appellant and the Respondent and the consequential orders made by the learned trial Judge, it was submitted that the relationship between the Respondent and the Appellant being clearly spelt out on Exhibit A and the Respondent in contravention of Exhibit A and having
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in cross-examination, admitted that he defaulted in payment and that the payment of the outstanding balance of N16.0m was to be by October 2013 while ejection of tenants was to be by December, 2013, the Respondent was not entitled to the order validating the transaction.
On the prayer for specific performance, learned Counsel referred to the Respondent’s relief ‘C’ and submitted that same ought not to have been granted for not being explicit or unequivocal as decided in F.I.R.S. VS THOMAS (2013) 17 NWLR (PT. 1348) 503, 517. Further, that by ordering the Appellant to accept the outstanding balance of the purchase price and deliver possession of the shops to the Respondent, the learned trial Judge granted a relief that was neither asked for by the Respondent in relief C nor was the Respondent who defaulted in payment entitled to, contending that the unsolicited order was made in error and is a nullity. He cited in support the cases of KINGS PLANET INC. G.D. VS W.A. LTD (2014 2 NWLR (PT. 1392) 609; LAGOS STATE GOVT VS OLUWASSE (2013) 1 NWLR (PT. 1344) 276 AT 280; CONOIL PLC VS SOLOMON (2017) 3 NWLR (PT. 1551) 50 AT 56.<br< p=””>
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Similarly, the learned trial Judge was faulted for awarding the sum of N200,000.00 damages to the Respondent without establishing what injury he has suffered to entitle him to any damages, being the one in breach of contract. The said damages, he argued was awarded in error citing in support the cases of F.C.D.A. VS UNIQUE FUTURE LEADERS INT. LTD (2014) 17 NWLR (PT. 1436) 213 AT 219; ZENITH BANK LTD VS ALOBU (2017) 4 NWLR (PT. 1554) 135 AT 139 and urged us to resolve the issue in favour of the Appellant.
Responding, learned Respondent’s Counsel reinforced the position of the lower Court that the filing of a reply to the statement of defence was unnecessary if the intention was only to deny the allegations in the statement of defence, the Appellant having not raised any new matter therein which the Respondent needs to specifically answer, by a reply. He cited the cases of NYONG EMMANUEL OBOT VS C.B.N. (1993) LPELR 2192 (SC); MDAM SAHAR OSCAR & ANOR VS MALLAM MANSUR ALIYU ISAH (2014) LPELR 23620 (CA).
Moreover, he submitted that the plaintiff who fails to file a reply to defendant’s statement of defence may lead evidence as the Respondent has done, to disprove the avernment in
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the statement of defence more so, where the defendant avers to facts contrary to the evidence he seeks to rely upon. He referred to paragraph 12 of the statement of defence where the Appellant averred that it was agreed and written that plaintiffs failure to pay the balance on 09/07/2014 shall void the sale but Exhibits B, C and D belie that fact and that Exhibit A does not contain any such term.
On the Appellant’s contention that the learned trial Judge refused to act on the unchallenged and reliable evidence of DW1, DW2 and DW4, it was submitted that their evidence was not only controverted in cross-examination and contradictory to documentary evidence, but was also unreliable. He referred to the evidence of DW1 in cross-examination that the Appellant’s solicitor issued quit notices (Exhibits C and D) which contradicts the alleged agreement erroneously asserted to be contained in Exhibit B. Exhibit B, relied upon by PW4 to contend that there was an agreement to pay the balance by 09/01/2014, it was submitted, cannot be relied upon in that it was not signed by the Respondent, who is an illiterate person; that it is not an agreement and
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that Exhibits C and D issued by the Appellant stating clearly that the Respondent now owns the property postdate Exhibit B. This he submitted, renders their evidence unreliable and justifies the finding by the lower Court that their evidence was not convincing. He submitted that DW2 who did not witness any of the transactions and DW3 who does not even know the Respondent, are not witnesses of truth. Based on these, it was submitted that the findings and conclusion of the learned trial Judge were based on the evaluated evidence and not on speculation or sentiment as contended by the Appellant’s Counsel.
It was also submitted that unchallenged evidence is not always conclusive prove of the party’s case where the realm of the law sets out conditions to be first met before the party can succeed in his case. He cited the case of GEORGE ABI VS C.B.N. & ORS (2011) LPELR 4192 (CA).
He then contended that the lower Court was right in validating the transaction since the Respondent had paid over 70% of the purchase price and the transaction was that of sale of property, the contract had been concluded and final, and all that was left was the payment of the outstanding balance as held in the cases of
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VICTOR EKA VS MR CALEB A.B. KUJU (2013) LPELR 22124 (CA); MINI LODGE LTD & ANR VS CHIEF OLUKA OLAKA NGEI & ANR (2009) LPELR 1877 (SC) among others.
Learned Counsel insisted that there is nothing in Exhibit A to show that the Respondent agreed that the contract will be terminated if Respondent failed to pay the balance as at when due and that oral evidence cannot override documentary evidence. Assuming, without conceding that the Respondent refused to pay the balance, the only remedy available to the Appellant, he argued, is to sue for specific performance and if possible, for damages, bearing in mind that Appellant had declared the Respondent owner of the property in Exhibits C and D.
On the Appellant’s submission that the learned trial Judge granted a relief that was not sought for, it was submitted that the trial Judge rightly made the orders the contract being that of a sale of property which the buyer is to pay for and receive the goods in the property and the seller to receive payment and release the goods. It was submitted that the Respondent having made part payment and the Appellant
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having in Exhibits C and D declared the Respondent owner of the property but refused to accept the balance, the Appellant had breached the contract and had nothing to sell to a 3rd party, nemo that quod non habet, that and the Court was therefore right to have ordered the Appellant to accept the balance from the Respondent and to deliver possession of the property to the Respondent. That the order to accept the balance and hand over possession to the Respondent is only an incidental or necessary relief which the Court is entitled to make, citing in support the case of EKPENYONG VS NYONG (1975) 2 SC 71.
It was finally submitted that since the purpose of an appeal is to review the decision of the lower Court to see if the decision is correct or not and the learned trial Judge having properly evaluated the evidence before him and did not act on speculation or sentiment and no miscarriage of justice was occasioned, the issue should be resolved in favour of the Respondent urging us not to interfere with the decision citing in support the case of CONTRACT RESORCE NIG. LTD & ANOR VS U.B.A. PLC (2011) LPELR 8137 (SC)
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Now, on the state of the pleadings, the learned Appellant’s Counsel has submitted that the non-filing of the reply to the statement of defence is an admission of the serious allegations raised at paragraphs 2 16 of the statement of defence.
The basic principle of law is that pleadings is the only avenue where issues for trial are joined. Beginning with the statement of claim, where the only pleading filed is the statement claim, the absence of a statement of defence only means that no issue is joined and the defendant is deemed in law to have admitted the truth of the allegations contained in the statement of claim as well as the relief sought against him. The Court may, except where specific prove is required, enter judgment against the defendant. See EGESIMBA VS ONUZURUIKE (2002) 15 NWLR (PT. 791) 466; OKOEBOR VS POLICE COUNCIL & ORS (2003) 12 NWLR (PT. 832) 444; MOSHOOD VS BAYERO (2001) 52 WRN 42.
Where the defendant files a statement of defence to dispute the material facts averred in the plaintiff’s statement of claim, issues are said to be joined. This happens when the parties to an action have, by their pleadings, answered one
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another’s pleading in such a manner that they have arrived at some material point or matter of fact, affirmed on one side and denied on the other. At that point parties are said to be at issue and the question thus raised becomes the issue joined between the parties, see EHIMARE VS EMHONYON (1985) 1 NWLR (PT. 2) 177, AT 183 B C; OVERSEAS CONST. LTD VS CREEK ENTERPRISES (NIG) LTD (1985) 3 NWLR (PT. 13) 407; NWADIOGBU & ORS VS NNADOZIE & ORS (2001) 12 NWLR (PT. 727) 315.
The issues joined by the statement of claim and the statement of defence are the issues that call for determination and pleadings will be said to be closed except where the defendant files a counter-claim or raises new issues in the statement of defence requiring the plaintiff to file a defence to the counter-claim or a reply to the statement of defence in answer to the new issues raised.
Generally, the law is that the plaintiff may not file a reply to a statement of defence where the only intention is to deny the allegation made in the statement of defence. Where however, a statement of defence in an answer to an averment in the statement of claim raises material new facts, or when it is
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necessary to plead relevant additional facts which will make any particular defence pleaded in the statement of defence untenable or negate the application of such defence, it is necessary to file a reply to the statement of defence. See OSHODI & ORS VS EYIFUNMI & ANOR (2000) 7 SC (PT. 11) 145; AKEREDOLU VS AKINREMI (1989) 3 NWLR (PT. 108) 164, 172 F G and NYONG EMMANUEL OBOTI VS C.B.N. (Supra). In these circumstances where a reply to a statement of defence is necessary, failure to file the reply carries with it the legal consequence that the plaintiff is deemed to have admitted the new material facts raised in the statement of defence. See UNITY BANK PLC VS BOUARI (2008) 2 3 SC (PT. 11); A.G. OF ABIA STATE VS A.G. FED. & ORS (2005) 6 SC (PT. 1) 63 where the Supreme Court restated this trite position of the law.
In the case at hand, though the learned Appellant’s Counsel did not specify the exact new issues raised in the statement of defence, I have perused the said paragraphs 2 16 of the statement of defence which do not appear to have raised any material new issues outside the issues that had been joined
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by the two previous pleadings. A reply by the plaintiff would only be for the sole purpose of denying the facts averred in the statement of defence thereby making it unnecessary to file a reply to the statement of defence. The learned trial Judge was thus right in holding that a reply to the statement of defence was unnecessary.
A calm consideration of the case of both parties shows that the real dispute is as to the justification of validating the sale transaction between the Respondent and the Appellant, the Respondent having failed to complete payment of the full purchase price within the agreed time.
The enabling document that created a contractual relationship between the Appellant and the Respondent is Exhibit A executed on the 8th October 2013. Clauses 1 4 of Exhibit A provide:
1. That in pursuance of the said Agreement and in consideration of the sum Twenty Six Million Naira Only (N26,000,000.00) the vendor as beneficial owner sells unto the purchaser the rights and the interest in ALL THAT piece of land known and situate at shop No. 16 Fagge Takudu, Kantin Kwari, Kano.
2. The vendor hereby acknowledges the receipt of the
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sum of Ten Million Naira only (N10,000,000.00) paid by the purchaser.
3. The purchase hereby covenants to pay the balance of Sixteen Million Naira Only (N16,000,000.00) at the end of October 2013.
4. The Vendor hereby covenants to ensure, the eviction of the tenants therein at the end of October 2013.
The reproduced clauses evince the facts that out of the N26,000,000.00 consideration for the property, N10,000,000.00 had been paid and acknowledged; the balance of N16.0m was to be paid at the end of October, 2013 and the tenants in the property were to be evicted at the end of December, 2013. These terms are as clear as crystal. They are that the balance of N16.0m which is to precede the eviction of the tenants was to be made at the end of October 2013 while the eviction of the tenants was to be at the end of December 2013. These are the terms which the parties voluntarily and willingly agreed to put down and endorsed as the conditions that would regulate the transaction.
It is an elementary principle of law that if parties voluntarily enter into agreement, they are bound by its terms. This is so
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because at law, parties are bound by a valid legal contract or agreement entered into by them whose terms and conditions govern the legal relationship created by the contract. Once parties have freely endorsed their assent to clear and unambiguous terms and conditions of an agreement, they are expected and indeed mandated to honour the terms. The terms are as binding on the parties as they are on the Court and must be treated as sacrosanct. The only exception is where it is shown that the agreement was obtained by fraud, mistake, deception or misrepresentation. It follows that one or the other party cannot legally opt out even if it turns out unfavourable to him, or read into the agreement the terms upon which parties are not agreed. HILLARYFARM LTD & ORS VS M.V. MAHTRA & ORS (2007) 14 NWLR (PT. 1054) 270;KOIKI VS MAGNUSSON (1999) 5 SCNJ 296; ECONET WIRELESS NIG. LTD VS ECOONET WIRELESS LTD (Supra); JFS INVESTMENT LTD VS BRAWAL LTD (2010) 18 NWLR (PT. 1225) 496 SC.
Paramountly, parties are presumed to intend what they have put down in their agreement. Accordingly, where the terms and conditions stipulated in the contract are free from ambiguity, the only duty of the Court in interpreting the
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the terms in relation to any dispute that arises, is to ascribe to them their clear meaning which would bring out or lay bare the intention of the parties, see KAYDEE VENTURES LTD VS MINISTER F.C.T. (2010) ALL FWLR (PT. 519) 1079; U.B.N. LTD VS OZIGI (1994) 3 SCNJ 42.
It is also a settled position of law that generally, where parties have embodied the terms of their agreement or contract in a written document, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument and subject to a few exceptions, oral evidence will not be allowed to contradict, or alter the contents of the document. This is because the law protects the sanctity of agreement validity entered into by parties which has been reduced to the form of a document or series of documents as captured bySection 128 (1) of the Evidence Act. See UBN LTD VS OZIGI (Supra), B.O.N. LTD VS AKINTOYE (1999) 12 NWLR (PT. 631) 392.
One of the exceptions to this general rule is the existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property. Section 128 (1)(d) Evidence Act.
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Parties are ad idem here, that the balance of the purchase price was not paid at the end of October as embodied and set out in clause 3 of Exhibit A. Also common ground is that of the N16.0m balance, the Respondent paid and the Appellant accepted the sum of N8.0m in two installments of N1.0m and N7.5m respectively in January 2014 outside the period stipulated in clause 3 of Exhibit A. The receipt of payment is evidenced by Exhibit B issued on 07/01/2014. Premised on this, and the other evidence on record, the learned trial Judge held at page 168 of the record:
It is also the testimony of DW IV (the defendant in this case that he accepted the subsequent payments from the plaintiff despite the expiration of their verbal agreements, in order to consider the earlier testimony of DW I on the contravention of the quit notice by the defendant together with the testimony of DW IV on the acceptance of subsequent payments by the plaintiff, this shows variation of the written sale agreement in form of Exhibit A. The defendant has condoned the repudiation of the earlier agreement.
Now, variation of contract entails a definitive alteration of
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contractual obligations by mutual agreement of both parties which may be effected by modifying or altering the terms of the contract. In law, parties are at liberty at any time either orally or in writing to mutually agree to waive, dissolve or annul former agreements or in any manner add to, subtract from or vary or qualify the terms of a contract and thus enter into a new contract. See EKWUNIFE V. WAYNE WEST AFRICA LTD (1982) 12 SC 92; ASHAKA CEMENT PLC VS ASHARTUL MUBASHURUN INVESTMENT LTD (2016) LPELR 40196 (CA).
Variation of contract, I may add, in some respects is analogous to novation in contract. Novation being a form of assignment in which by consent of all parties, a new contract is substituted for an existing contract. It is the act of substituting for an old obligation a new one that either replaces an existing obligation with a new obligation or replaces an original party with a new party. (see Blacks Law Dictionary 8th Edition at P. 1094) In UNION BEVERAGES LTD VS OWOLABI (1988) 1 NWLR (PT. 68) 128, 167 the Supreme Court per Nnaemeka Agu JSC defined Novation as follows:
A novation is a transaction whereby a new contract or new parties to a contract by consent of both parties to a contract
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or new parties to a contract by consent of both parties express or implied is deemed to have been substituted for or with the one originally made, or a material part thereof is added to or mutually amended.
In his exposition of the term Novation the great jurist Fatayi Williams in the case of GROVER VS INTERNATIONAL ILE INDUSTRIES LTD (1976) 11 SC or (1976) LPELR 1342 (SC) had this to say:
The law is well settled that a later Agreement by the parties to an original contract to extinguish the rights and obligations that the original contract has created is itself a binding contract, provided that the later Agreement is either made under seal or is supported by consideration. Consideration raises no difficulty if the original contract sought to be extinguished is still executory. This is because each party by the later agreement is deemed to have agreed to release his rights under the original contract in consideration of a similar release by the other. Such bilateral discharge may take the form of dissolution plus replacement. Thus, the parties may extinguish the original contract but
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substitute and entirely new agreement in its place.
As with variation of contract, for Novation in contract to be effective, there must be a valid subsisting contract; there must be mutuality of agreement of all parties as to the obligations which are to be altered, being an entirely a new contract. Absence or withholding of consent of one of the parties renders variation or Novation ineffective since a contract involves an agreement of all parties. In addition, it must be supported by consideration. See GROVER VS INTERNATION AL ILE IND. LTD (Supra); UNITY BANK PLC VS OLATUNJI (2014) LPELR. However, consent needs not be in writing or expressed. It may be inferred from the conduct of the parties without any expressed words or writing. In other words, the consent of all parties essential to constitute the new contract in substitution for the old contract, does not have to be in writing or expressed in words. See ONEGBEDAN VS UNITY BANK PLC (Supra).
Similarly, a mere abandonment of the existing rights of the parties under the agreement constitutes sufficient consideration for the purpose of the variation of the agreement or Novation in the contract.
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See GROVER VS INTERNATIONAL ILE INDUSTIRES LTD (Supra); EKWUNIFE VS WAYNE W.A. LTD (Supra).
In the case at hand, the payment of N8.0m by the Respondent in January, 2004 and its acceptance by the Appellant indicates the mutuality of agreement between both parties to vary the terms of Exhibit A. The acceptance of the N8.0m by the Appellant in January 2014 contrary to the initial agreement in Exhibit A waives or modifies the condition in clause 3 of the initial agreement in Exhibit A that payment shall be completed in October 2013 and thus constitutes a variation of that term. Similarly, the mere fact that the Appellant abandoned his right to receiving full payment in October, 2013 by accepting another instalmental payment of N8.0 in January, 2014 not being the full and final payment, constitutes sufficient agreement by conduct that he has extinguished his right under Exhibit A in substitution for the new agreement that payment be made after the stated date in Exhibit A, which according to the Appellant, was to be on the 9th January, 2014 two days after the receipt of the N8.0m as supported by Exhibit B. It is glaring that contrary to the submission of the learned Respondent’s
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Counsel and the finding of the learned trial Judge, per force of Exhibit B, the balance of N7.5m was to be paid on Thursday 09/01/2014, thereby pegging the extended period of payment to the 09/01/2014. Undeniably, the payment was not made on the 09/01/2014.
What then is the consequence of the Respondents failure to pay the balance on 09/01/2014?
To appreciate the consequence of such failure to pay the outstanding balance on the new extended date, this will have to be viewed in the light of other pieces of evidence on record. It is on record that one Femi Olorunyomi Esq on behalf of the Appellant wrote two letters to the tenants of the premises on the 16th January, 2014 informing them that he had the instruction of his client, Alhaji Abdurrauf Bala Rabiu (The Appellant) to inform them that he had sold the property in question to Alhaji Awalu Ahmad Zara (the Respondent). These two letters are Exhibits C and D at pages 144 and 145 of the record.
Exhibit C which is a replica of Exhibit D except for the name of the addressee, reads in part:
16th January, 2014
Alh. Bala Adamu Baba
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Shop No. 16A Fagge Takudu
Kantin Kwari
Kano.
Dear Sir,
NOTIFICATION OF SALE OF SHOP NO. 16 FAGGE TAKUDU, KANTIN KWARI, KANO
We write for and on behalf of ALHAJI ABDURRAUF BALA RABIU of No. 6E Yusuf Road, Bompai, Kano hereinafter referred to as (Our Client), the Landlord of No. 16 Fagge Takudu, Kantin Kwari, Kano and on whose instructions we write you in connection with the above subject matter as hereinafter contained.
We have our clients instruction to formally notify you that he has sold the property in question to ALHAJI AWALU AHMAD ZARA, the new Landlord of the property in question. Please recall our client repeatedly offered you the property which offer you turned down upon failed promises consequent to which our client sold same to another person.
In view of this development, we are to request you on behalf of our client, to henceforth deal with the said purchaser as your new Landlord and to please surrender vacant possession of same to him FORTHWITH without the need of being coerced.
While we urge you to please feel free to discuss any related issues with our client, we are to than you in
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advance for your expected cooperation with the new Landlord.
Yours faithfully,
FEMI OLORUNYOMI ESQ.
PP: Femi Olorunyomi & Co.
(Legal Practitioners)
CC: Alh. Abdurrauf Bala Rabiu.
Exhibit C written on behalf of the Appellant on 16/01/2014 after Exhibit B which was made on 07/01/2014, speaks for itself and it says it all. By it, the Appellant had sold the property in question to the Respondent and that the tenants were to surrender possession of the property to the Respondent who had become the new Landlord.
Obviously, this later conduct of the Appellant expressed in Exhibits C and D which postdate Exhibit B does not only negate the condition in Exhibit B that full and final payment shall be made by 09/01/2014, but also waives or alters completely, clause 4 of Exhibit A that payment shall precede ejection of the tenants. The Appellant must remain bound by the contents of Exhibits C and D written on his behalf by a legal practitioner, the authority or authenticity of which has not being denied. Except Exhibits C and D are successfully challenged, and no attempt or suggestion has been made in that direction, the law is settled that a counsel can make an
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admission on behalf of his client and the client remains bound by the admission, see ADEWUNMI VS PLASTEX (NIG) LTD (1986) 3 NWLR (PT. 32) 767, as applied by Tobi JSC in CAPPA AND DALBERTO LTD VS DEJI AKINTILO (2003) 9 NWLR (PT. 824) 49.
The implication of Exhibits C and D as rightly submitted by the Respondent’s Counsel is that the Respondent had become the owner of the said shops 16A and 16B Fagge Ta Kudu Kantin Kwari, Kano.
Furthermore, the law is that in a contract of sale of property, part payment of the purchase price concludes the sale leaving only the payment of the outstanding to be paid, the breach of which entitles the other to sue for specific performance. In MINI LODGE LTD & ANOR VS CHIEF OLUKA OLAKA NGEI & ANOR (2009) 18 NWLR (PT. 1173) 254 also reported as (2009) LPELR 1877 (SC), in his contributory judgment at page 41 paragraphs B D Adekeye JSC reiterated the law in these words:
In a contract for sale of property, where part payment was paid, the law is that the contract for purchase has been concluded and is final, leaving the payment of the balance outstanding to be paid. The contract for the
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sale and purchase is absolute and complete for which each party can be in breach for non-performance and for which an action can be maintained for specific performance.
In the light of this, the learned trial Judge cannot be faulted or be accused of sentiments or speculation when he held at page 170 of the record that:
The plaintiff who had paid more than 70% of the agreed purchase price and obtained receipts in form of Exhibit B, the defendant ought to have allowed the agreement to be concluded.
I entirely endorse the said conclusion of the learned trial Judge as a re-statement of the law. The remedy available to the Appellant was to have sued for specific performance but not to rescind the contract and sale the property to a 3rd party after the sale had been concluded and finalize with the Respondent.
On the consequential orders made by the learned trial Judge that: the defendant is hereby ordered to accept the outstanding payment of the balance of the sale of the shops in dispute and to deliver possession of the said shops to the plaintiff which the learned Appellant’s
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Counsel vehemently argued is unsolicited and not covered by the relief sought in prayer C, the law is that specific performance is the remedy requiring the exact performance of a contract in the specific form in which it was made and according to the precise terms agreed upon. It is the actual accomplishment of a contract by the party bound to fulfil it. IBEKWE VS NWOSU (2011) 9 NWLR (PT.1251) 1. As defined by Kutigi JSC (as he then was) inUNIVERSAL VULCANISING NIG LTD VS IJESHA UNITED TRADING & TRANSPORT & ORS (1992) NWLR (PT. 266) 388, specific performance is a decree issued by the Court which constrains a contracting party to do that which he has promised to do. It is a remedy for breach of contract provided by equity to meet those cases where the common law remedy of damages is inadequate. See BEST (NIG) LTD VS BLACKWOOD NIG. LTD (2011) LPELR 776 (SC). Therefore, being a relief that requires performance of the contract in the exact manner it was made and in the specific terms agreed by the parties, it is only in effectuating the law and giving meaning and flesh to prayer C within the con of the terms of the agreement and the contents of Exhibits C and D
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that the learned trial Judge ordered the Appellant to collect the balance of the outstanding debt and to deliver possession to the Respondent, which the Appellant had held himself out to have done in Exhibits C and D. It follows that Counsel’s vehement argument that the learned trial Judge granted an unsolicited relief is only but a storm in a tea pot. It is accordingly discountenanced.
As regards the award of damages of N200,000.00 to the Respondent which the learned Appellant’s Counsel has also complained against on the ground that the Respondent failed to establish any injury suffered to entitle him to the award, it is settled law that general damages are the losses that naturally flow from the wrong committed by the adversary and it is presumed by law. It needs not be pleaded or specifically proved provided that it flows naturally from the act of the defendant which vests in a trial Court the discretion to award what it deems appropriate in each case bearing in mind the principles guiding the award.
An award of damages is ordinarily within the realm of the discretion of the trial Court and an appellate Court can only interfere when:-
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the trial Court has acted under a mistake of law; the trial Court has acted in disregard of known principles of law or on no principle at all; the trial Court has acted under a mis apprehension of facts; the trial Court has taken into account irrelevant matters or failed to take account of relevant matters; the amount awarded is either ridiculously too low or ridiculously too high that it must have been a wholly erroneous estimate of damages; or in justice would result if the appeal court does not interfere. See ALLIED BANK VS AKUBUEZE (1997) 6 NWLR (PT. 509) 374; USONG VS HANSEATIC INTERNATIONAL LTD (2009) LPELR 3434 (SC); CBN VS AITE OKOJIE (2015) 14 NWLR (PT. 1479) 231.
The Appellant has not made out the application of any of these exceptions to his case and there is thus, no basis for this Court to interfere with the award of damages as decreed by the lower Court. After all, an appellate Court ought not to upset by an award of damages merely because it would have awarded a higher or lesser amount. See OLUROTIMI VS IGE (1993) 8 NWLR (PT. 311) 257.
On the whole and in conclusion, all the Appellants grudges having been found to be untenable, the learned trial judge
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was right in validating the sale transaction between the Appellant and the Respondent and in the consequential orders made. The result is that, I resolve the sole issue in this appeal against the Appellant and dismiss the appeal there being no merit whatsoever. In consequence, I affirm the decision of the lower Court delivered on 13/10/2016 including all the orders therein made. Parties shall bear their cost.
IBRAHIM SHATA BDLIYA, J.C.A. : Having had the advantage of reading a draft copy of the judgment just delivered by my lord, AMINA AUDI WAMBAI, J.C.A., I concur with the reasons for dismissing the appeal for being unmeritorious. I affirm the judgment of the lower Court delivered on 13th of October, 2016. I abide by the order made on costs.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. : I am in agreement with the lead Judgment of my learned brother, Amina Audi Wambai J.C.A., that this appeal lacks merit. I also dismiss it and affirm the Judgment of the lower Court.
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Appearances:
B. M. Mukaddam, Esq.For Appellant(s)
A. S. AIKAWA, Esq., with him, M. L. Garba, Esq., Medinat A. Aminu, Esq. and B. M. Ibrahim. Esq.For Respondent(s)
Appearances
B. M. Mukaddam, Esq.For Appellant
AND
A. S. AIKAWA, Esq., with him, M. L. Garba, Esq., Medinat A. Aminu, Esq. and B. M. Ibrahim. Esq.For Respondent
