ADENUGA v. YAYOK (2021)

ADENUGA v. YAYOK

(2021)LCN/14978(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Monday, January 18, 2021

CA/K/19/2019

RATIO

JUDGMENT: POSITION OF THE LAW TO AN APPLICATION FOR THE ARREST OF JUDGMENT OF A COURT

The apex Court has held in Ukachukwu vs. PDP, (2013) LPELR (21894) (SC) thus; relying

“This Court stated the position of the law in relation to an application for arrest of judgment of a Court. It was decided that the procedure for arrest of judgment is now hardly known in our civil jurisprudence; that an arrest of judgment is an act of staying a judgment, or refusing to render judgment in an action at law in criminal cases after verdict; that it was done usually for some matter appearing on the face of the record, which would render the judgment, if given erroneous or reversible. The Court further stated that under the old common law rule the procedure is not peculiar to criminal cases alone but applicable in civil cases. The above position, notwithstanding, the Court held that the procedure for arrest of judgment is alien to our rules of Court and does not apply in civil matters and that the application under consideration was misconceived both in law and fact. The Court further stated that the rules of Court in Nigeria do not make provision for an application to arrest a judgment which is about to be delivered by a Court and that any such application cannot be described as proper application.” SAIDU TANKO HUSSAINI, J.C.A.

FAIR HEARING: CONCEPT OF FAIR HEARING

The concept of fair hearing connotes giving equal opportunities to the parties to be heard in the litigation before the Court. Where parties are given opportunity to be heard, they cannot complain of breach of the fair hearing principles, see: INEC V. MUSA (2003) LPECR – 24927(SC). SAIDU TANKO HUSSAINI, J.C.A.

CONTRACT: REMEDIES AVAILABLE TO AN INNOCENT PARTY FOR THE BREACH OF THE TERMS BY THE GUILTY PARTY

Where a party to a contract is guilty of breach of the terms of contract the innocent party has a right to rescind the contract or treat it as abandoned. SAIDU TANKO HUSSAINI, J.C.A.
DAMAGES: RULE GOVERNING THE AWARD OF DAMAGES

The rule governing the award of damages is Hardley v. Baxendate (1954) 9 Exch 341, is where two parties have made a contract where one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either as arising naturally i.e. according to the usual course of things, considered from such breach of contact itself; or such as may be reasonably supposed to have been in the contemplation of the parties, at the time they made the contact, as the probable result of the breach of it. SAIDU TANKO HUSSAINI, J.C.A.

Before Our Lordships:

Hussein Mukhtar Justice of the Court of Appeal

Saidu Tanko Hussaini Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Between

OLALEKAN ADENUGA APPELANT(S)

And

WAJE G. YAYOK RESPONDENT(S)

SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Kaduna State High Court delivered on the 5th November, 2018 vide Suit No. KDH/KAD/181/2018. The Respondent herein had commenced action by way of the Originating Summons dated the 26th February, 2018 and by that process, sought certain reliefs or claims against the appellant. Those claims are encapsulated at pages 1-2 of the record of appeal.

Given those claims, the Respondents also sought for the determination of two (2) questions, which briefly put are;
(i) Whatever by the default of the defendant/appellant, to pay to the respondent the balance of the purchase price to the building at Block 21 Agric Staff Quarters, Egypt Road, Barnawa Kaduna on 15th February 20018, he had not terminated the agreement or contract between them?
(ii) Whether by the refusal of the deft/appellant to return the title documents to the property described in (i) above does not amount to detinue for which the plaintiff/respondent is entitled to damages?

The brief facts of the case are that the Respondent by a memorandum of understanding transferred his interest in the property at Block 21, Agric, Staff Quarters, Egypt Road, Barnawa Kaduna to the Appellant wherein the latter made a part payment with the promise to pay balance on or before the 15th February, 2018. The appellant failed to perfect his own side of the bargain at the appointed date and other subsequent dates which the respondent had extended at the request of the appellant, hence, the action brought or instituted by the respondent at the Court below. The case came up for hearing on 21/3/2018, 10/5/2018, 1/6/2018, 20/7/2018 and finally on the 3/8/2018, when the Court took or heard the application before it, i.e. Originating Summons and adjourned same for judgment on 25/10/2018. On the 15/10/2018 the appellant filed an application wherein he sought for an order for enlargement of time to file his Memorandum of Appearance, Counter Affidavit and other processes against the Originating Summons in respect of which the Court had reserved ruling.

The trial Court nonetheless, on the 5/11/2018 delivered judgment and granted Plaintiff/Respondent’s claims.
Against that judgment and order, the appellant has appealed to this Court on the 5/12/2018, on four grounds via the Notice of Appeal dated the 5/12/2018.

Record of Appeal and additional record of appeal were both transmitted on 16/1/2019 and 9/4/2019 respectively. The latter was deemed as properly transmitted on the 10/4/2019. Parties thereafter filed heard and exchanged their briefs of arguments and adopted same on the 21/10/2020 when the appeal came up on the 21/10/2020for hearing.

In the brief of argument filed for the appellant on 1/3/2019, are the four (4) issues raised and identified at pages 3-4 of the brief for determination thus:
1. Whether the learned trial judge was wrong in refusing to hear and rule on the Appellant’s application dated 12th October, 2019. (Distilled from ground 1 of the Notice of Appeal)
2. Whether the refusal of the learned trial Judge to hear the Appellant’s pending application amounted to a miscarriage of justice and a breach of the Appellant’s fundamental right to fair hearing. (Distilled from ground 1 of the Notice of Appeal).
3. Whether the learned trial judge was not wrong and thereby occasioned a miscarriage of justice against the Appellant when the she

held that the Contractual Agreement between the parties had terminated and the Respondent entitled to repossession of the said property without taking into account the variations surrounding the initial agreement. (Framed from Grounds 2 and 4 of the Notice of Appeal).
4. Whether the learned trial judge was not wrong on Principles of Law and when she suo motu raised and decided the issue that the Appellant has stated that he cannot pay the respondent damages, as unjust, without first affording the Appellant an opportunity to address the Court on the issue. (Distilled from Grounds 4 of the Notice of Appeal).

The brief of argument for the Respondent filed on the 2/4/2019 raised three (3) issues for determination of Court, namely:
1. Whether the Appellant’s Application dated the 12th day of October, 2019 was properly placed before the trial Court to warrant the learned trial Judge to hear same and whether the refusal to so do amounted to a miscarriage of justice and a breach of the appellant’s fundamental right to fair hearing?
2. Whether the Appellant has breached exhibit A and whether the breach was rightly held by the learned

trial Judge to have terminated the contract between the parties.
3. Whether the respondent is entitled to damages as held by the learned trial judge.

After careful consideration of all issues submitted by parties on both sides, it is my candid view that the three (3) issues formulated and contained in the respondent’s brief of argument adequately cover all the four (4) issues distilled in the appellant’s brief of argument and I adopt same.

Issue (one) 1
Whether the Appellant’s application dated the 12th day of October, 2019 was properly placed before the trial Court to warrant the learned trial Judge to hear same and whether the refusal to so do amounted to a miscarriage of justice and a breach of the appellant’s fundamental right to fair hearing?

Appellant’s submission on this issue No 1 are contained at pages 4-7 of his brief of Argument. The sum total of this submission is that the learned trial Judge’s refusal to hear appellant’s pending application before entering judgment in the Respondent amounted to a denial of the Appellant’s fundamental right to fair hearing, occasioning a

miscarriage of justice. He cited in his brief, a plethora of decided cases on this point including the decision in Salim v. Ifenkwe (1996) 5 NWLR (pt. 450) 564, 584, 585, Pepple v. Green (1990) 4 NWLR (pt. 142) 108, 121; Etakulu v. NBC (2005) A @ FWLR (pt. 261) 353, 377 (CA). Mabogunje v. Ochutola (2008) All FWLR (pt. 412) 1182, 1193(CA); Onwuka Hi-Tek vs. ICON Ltd (1992) 2 NWLR 226, 233 (CA); Gbadamosi v. Dairo (2007) All FWLR (pt. 357) 812, 829; Uka v. Irolo (2002) FWLR (PT. 127) 1167 (CA). We were urged to resolve issue 1 in favour of the Appellant.

Arguing the same issue per contra, are submissions contained in the Respondent’s brief of argument at pages 2-4 of his brief. Essentially the submission is that the issue of lack of fair hearing as raised by the appellant is a non-issue viewed from the background that the application relied upon by the appellant as a pending application was infact filed belatedly after the trial Court had reserved judgment on the substantive case after taking arguments over it. It is argued that by the sheer conduct of the appellant filing an application at that point in time was an attempt to arrest the judgment of

Court earlier reserved for delivery. He relied on the case of Ukachukwu v. PDP & 3 Ors. (2013) LPELR – 21894 (SC); Newswatch Ltd. Vs. Attah (2006) 12 NWLR (pt. 993) 144, 178 – 179. Shettima v. Goni (2011) 18 NWLR (pt. 1279) 413, 425. Inakoju vs. Adeleke (2007) 4 NWLR (pt. 1025) 427, 623-627. Bob–Manuel vs. Briggs (2003) 5 NWLR (pt. 813) 323, 340 -341. We were urged to resolve issue 1 in favour of the Respondent.

Appellant’s allegation of lack of fair hearing raises a fundamental constitutional question. It borders on the breach of the right of the citizen, the appellant herein, of his entitlement to hearing. The issue here is that he (appellant) was not heard or allowed to move the application filed by him and yet the trial Court went ahead to deliver judgment against him.
By the application, filed on the 15/10/2018 the appellant sought the following prayers to writ:
1. “An order of Court enlarging the time within which the Applicant shall file his Memorandum of Appearance, Counter Affidavit and other relevant processes in this suit.
2. An order of Court deeming the said documents as properly filed and served.” (Refer to page 29 of the Record)

It is worthy of note that the filing of the said Motion on Notice on the 15/10/2018 was coming at a time the trial Court had reserved judgment in the matter. The proceedings of the Court held on the 3rd August 2018, at page 36 of the Record of Appeal is self-explanatory. On the said date the trial Court after hearing counsel for the Respondent moved his application in terms of the prayers in the Originating Summons and the response of the appellant through his counsel, Mr Okoli, was that: “We have not filed any processes” the trial Court in consequence reserved the case for judgment that was on the 3/8/2018, as at page 36 of the Record of Appeal.
Unarguably, the appellant’s Motion filed on 15/10/2018, was meant to draw back the hands of the clock at a time when the deed had been done. It was intended to arrest the judgment which the trial Court had earlier reserved hence the practice of arresting judgment is unknown to our jurisprudence. The apex Court has held in Ukachukwu vs. PDP, (2013) LPELR (21894) (SC) thus; relying

Respondent’s Originating Summons was filed on 1st March 2018, the defendant/appellant had 21 days in which to enter his defence pursuant to Order 17 Rule 2 of the Procedure Rules of Kaduna State failing which the party in default is mandated to pay default fees. The appellant thus, had ample opportunity to enter his defence regardless of any move by him for a settlement out of Court but he failed to act timeously. He cannot in the circumstance be said, he was denied hearing.
The concept of fair hearing connotes giving equal opportunities to the parties to be heard in the litigation before the Court. Where parties are given opportunity to be heard, they cannot complain of breach of the fair hearing principles, see: INEC V. MUSA (2003) LPECR – 24927(SC). Certainly for the trial Court refusing to take or hear the application of the appellant which was intended to arrest the judgment of the trial Court was not a breach of the concept of fair hearing. Consequently, issue No 1 is resolved against the appellant.

Issue No. 2
Whether the Appellant has breached exhibit A and whether the breach was rightly held by the learned trial Judge to have terminated the contract between the parties.

The position of the appellant/counsel on issue no 2 in that by reason of the variations to the memorandum of understanding, (exhibit A), the appellant cannot be said to have been in breach of the agreement, let alone by that conduct, terminate the contract agreement, between them. We were urged to hold that the trial judge’s reliance on only the memorandum of agreement without adverting to the variations made thereto by the parties, occasioned a miscarriage of justice.

The respondent, arguing per contra in his brief of argument referred us to exhibit A (The Contract Document) at pages 7-9 of the Record of appeal. He argued that once an agreement had been reduced into writing it could not be varied by words of mouth except by another mutual agreement in a written form, in absence of which Exhibit A represent the intension of the parties to it. I agree. By exhibit A the appellant was expected to pay the balance of the purchase price on or before 15/2/2018.

Although the respondent bent over backwards to extend the time to enable defendant meet his obligation, the terms contained in the contract document still remain sacrosanct. The terms contained in the

agreement also permit the respondent to rescind the contract in the event that the appellant refused or failed to pay the balance of the purchase price, then by that failure he would have breached the terms of the contract. Exhibit A mean what it says. Courts of law only have the vires to interpret the terms contained in a contact document with a view to discover the intension of the parties therein. Where therefore, the contract document provides that the agreement between the parties stands terminated if and when the appellant failed to pay the balance of the purchase price, it then stands to reason that the appellant was in breach of the agreement, given the terms of the contact document, hence the trial Court’s finding to that effect was in order.

Where a party to a contract is guilty of breach of the terms of contract the innocent party has a right to rescind the contract or treat it as abandoned.
Issue No. 2 is similarly resolved against the appellant.

Issue No 3.
Whether the respondent is entitled to damages as held by the learned trial Judge.

Learned Counsel for the appellant in addressing this issue, argued that since the appellant or his counsel was not called upon to address issue of damages, the trial Court was wrong to award those damages for the Respondent, it was argued that the Respondent was entitled to damages for the loss he has suffered resulting from conduct of the appellant who failed to perform his obligation under the contract. He relied on Dantata v. Muhammed (2000) 7 NWLR (pt. 664) 176, 199.

Given the terms contained in the contract document, Exhibit A, the failure of the Appellant to pay the balance of the purchase price was a breach of the contract terms on his part. Where therefore, there was a breach of contact the party who suffered loss is entitled to damages and the party suffering the loss is not expected to prove in specific terms what he had lost. I think the use of the term ‘general’ damages by the trial Court in its judgment in granting the reliefs in favour of the Respondent, is a misnomer or misplaced in case of breach of contract but this is not to say that the trial Court cannot award damages at all. Indeed it can do so in the particular circumstance where the respondent had suffered losses resulting from the conduct of the

appellant. I will therefore overlook the use by the trial Court of the word ‘general’ in the award of damages, made in favour of the respondent. See Beta Glass v. Epaco Holding Ltd. (2010) LPELR – 3872 (CA).
The rule governing the award of damages is Hardley v. Baxendate (1954) 9 Exch 341, is where two parties have made a contract where one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either as arising naturally i.e. according to the usual course of things, considered from such breach of contact itself; or such as may be reasonably supposed to have been in the contemplation of the parties, at the time they made the contact, as the probable result of the breach of it. The trial Court in its judgment recognised that there had been a serious breach of the agreement between the parties on the part of the appellant to call for restitutionary remedies in favour of the innocent party.
Having come to this conclusion I cannot fault the findings of the trial Court when it awarded damages in the sum of N1,000,000.00 (One

Million Naira Only) in favour of the Respondent except that the use of the word ‘general’ before ‘damages’ under relief No. 5 of the reliefs at page 41 of the record, shall be discountenanced. In effect issue No, 3 is similarly resolved in favour of the Respondent.

All issues having been resolved against the appellant, the appeal necessarily fails and same is dismissed while the judgment of the trial Court, subject to the observation made above, is affirmed. Cost as the sum of N100, 00.00 (One Hundred Thousand) is assessed against the appellant.
Ordered accordingly.

HUSSEIN MUKHTAR, J.C.A.: I was privileged to read, in draft, the judgment of my learned brother SA’IDU TANKO HUSAINI, J.C.A. I am in complete agreement with him that the appeal lacks merit and should be dismissed.
I dismiss the appeal and subscribe to the orders made in the judgment inclusive costs.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the judgment of my learned brother, SAIDU TANKO HUSAINI, J.C.A. where the facts leading to this appeal and the issues in dispute have been set out. The trial Court, in its judgment,

recognised that there had been a breach of the agreement between the parties on the part of the appellant calling for restitutionary remedies.

For the reasons given by my learned brother and which I agree with, I also dismiss this appeal and subscribe to the orders made.

Appearances:

Eugene Ehi, Esq. For Appellant(s)

Valentine O. Ajibo, Esq. For Respondent(s)