AKAMS v. ALI-BRO INT’L SERVICES LTD
(2022)LCN/16142(CA)
In the Court of Appeal
(KADUNA JUDICIAL DIVISION)
On Friday, July 01, 2022
CA/K/81/2013
Before Our Lordships:
Amina Audi Wambai Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
SILVANUS AKAMS APPELANT(S)
And
ALI-BRO INTERNATIONAL SERVICES LIMITED RESPONDENT(S)
RATIO
WHETHER OR NOT A LAND INSTRUMENT IS A VITAL DOCUMENT IN PROVING LEGAL TITLE OF OWNERSHIP TO LAND
I must make clear at this point that a land instrument is a vital document in proving legal title and equitable interest in land and just as the Appellant’s Counsel has argued under paragraph 4.3 of the Appellant Brief of Argument, an unregistered land instrument is not admissible but this relates to when it is used to prove a claim of title to land. However, such unregistered instrument is admissible to prove payment of money, possession, or an equitable interest in land. See the cases of OJUGBELE VS. OLASOJI (1982) 4 SC 31, AKINTOLA & ANOR VS. SOLANO (1986) 2 NWLR (PT. 24) 589, OGBIMI VS. NIGER CONSTRUCTION LTD (2006) 9 NWLR (PT. 986) 474 and ANYABUNSI VS. UGWUNZE (1995) 6 NWLR (PT. 401) 255. PER IDRIS, J.C.A.
THE LEGAL PRINCIPLE THAT PARTIES ARE BOUND BY THEIR PLEADINGS
One thing that comes to mind again is why would the Appellant undertake to perfect a perfect title? The argument of the Appellant on this issue appears to me as one who has ran to the law for protection when he has failed to keep to his own part of the agreement. The law cannot be used as a shield in this case because it is trite that parties are bound by the terms of their agreement. See the case of OBANYE VS. UBN PLC (2018) 17 NWLR (PT. 1648) 375. PER IDRIS, J.C.A.
THE POSITION OF LAW IN AWARDING DAMAGES IN AN ACTION FOUNDED ON BREACH OF CONTRACT
In awarding damages in an action founded on breach of contract, the rule to be applied is restitutio in integrum, that is, in so far as the damages are not too remote the Plaintiff shall be restored, as far as money can do it, to the position in which he would have been if the breach had not occurred. See the cases of MEDICAL AND DENTAL COUNCIL OF NIG VS. SYSTEM INFORMATION LTD (1998) 12 NWLR (PT. 572) PAGE 258 and UDEAGU VS. BENUE CEMENT CO. PLC (2006) 2 NWLR (PT. 965) PAGE 600.
Also, with regard to the argument of the Appellant’s Counsel against the award of damages by the Court, the law is that apart from damages naturally resulting from the breach of contract, no other form of general damages can be awarded. However, where breach of contract is established, the Court is allowed upon a judicious assessment of the prevailing circumstances to award general damages as the Court would presume to be the direct natural and probable results of the acts complained of which need not be strictly proved unlike special damages. See the case of UTC (NIG) PLC VS. PHILIPS (2012) 6 NWLR (PT. 1295) 136 AT 46. I am thus of the strong view that the award of N1 Million to the Respondent as against the N5 Million sought for by it was rightly done and need not be disturbed. See the case of JOHNSON WAX (NIG) LTD VS. SANNI (2010) 3 NWLR (PT. 1181) 235 CA AT 241. PER IDRIS, J.C.A.
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): The matter at the trial Court consists of two cases between the same party to wit: Suit No: KDH/KAD/552/2011 wherein the Respondent as Plaintiff filed against the Appellant as Defendant and KDH/KAD/751/2011 wherein the Appellant as Plaintiff filed against the Respondent as Defendant.
By a Writ of Summons filed on the 10th day of May, 2011, the Suit No: KDH/KAD/552/2011 was instituted and the Respondent as Plaintiff sought for the following reliefs against the Appellant as Defendant thus:
a. The sum of N9 Million Naira (Nine Million Naira only) being a refund of the purchase price for the piece of land known as Plot 7A & B No. 7 Aliyu Makama Road, Barnawa, Kaduna.
b. The sum of N1.2 Million (One Million, Two Hundred Thousand Naira only) being the cost of the Plaintiff’s incurred expenses for fencing the said plot purchased from the Defendant.
c. N5 Million (Five Million Naira only) being general damages against the Defendant for misrepresentation leading to the Plaintiff’s belief and subsequent purchase of the said plots from the Defendant.
It was the claim of the Respondent at the trial Court that sometime in 2007, its attention was drawn, to the alienation of Plots 7A and B Aliyu Makama Road, Barnawa, Kaduna by the Appellant and that he claimed to be a donee of Power of Attorney over the said Plots 7A and B Aliyu Makama Road, Barnawa, Kaduna.
The Respondent also claimed that it became interested and acting on the belief that the Appellant being the lawful donee of the Power of Attorney over the said plots granted by its lawful holder, agreed to purchase the said plots at the Appellant’s offer price of N9 Million.
The Respondent also claimed that on or about the 1st day of June 2007, it made payment of the purchase sum in full to the Defendant, vide a First Inland Bank Cheque No. 02475732 and dated the 1st day June, 2007 in favour of Silvanus Akams and the Appellant acknowledged receipt of the purchase sum and executed a sale agreement dated 1st June, 2007 and a deed of assignment dated 1st June, 2007, both duly signed by both parties on the same day and in the presence of witnesses.
The Respondent claimed that on the 11th day of July, 2007, it applied to the Federal Ministry of Environment Housing and Urban Development for approval for fencing its plots which it bought from the Appellant on the 1st day of June, 2007 and he went ahead to fence the said Plots 7A and B Aliyu Makama Road, Barnawa, Kaduna, and incurred an expenses of N1.2 million only.
The Respondent also claimed that it waited in vain to have real possession of the plots but the Appellant continued to deceive it with one excuse or the other and having become fed up, investigated the truth of the transaction, only to discover that it had been deceived to pay for Plots 7A and B Aliyu Makama Road, Barnawa, Kaduna whereas the Appellant only has title to Plots 7A Aliyu Makama Road, Barnawa, Kaduna, and not Plots 7A and B as purported.
It is also the claim of the Respondent that the Appellant had in his letter dated the 6th day of June, 2007, applied to the Federal Comptroller, Federal Ministry of Environment, Housing and Urban Development, Kawo – Kaduna, for survey of his Plot No. Plots 7A Aliyu Makama Road, Barnawa, Kaduna, (Not Plot No. 7 A & B).
The Respondent claims that the Appellant’s application was granted and a sketch plan drawn accordingly but only with reference to Plot 7A, Aliyu Makama Road, Barnawa, Kaduna. The Respondent also claims that his investigations that the Federal Ministry of Works and Housing, Abuja further revealed that the said Plot No. B, No. 7 Aliyu Makama Road, Barnawa, Kaduna has earlier been allocated to one Ibrahim Ahmadu Musa of Ungwan Sanusi, Kaduna vide an offer letter Ref. No. KD/SAS/FGP/AM/7B dated the 15th day of March, 2003.
The Respondent claims that the Appellant was only offered Plot No. 7A Aliyu Makama Road, Barnawa, Kaduna, vide a similar Federal Ministry of Works and Housing Offer letter Ref. No. KD/SAS/FGP/AM/7/A dated 21st March, 2003, and plot A and B as he made the Respondent to believe. The Respondent also claims that since the purchase of the said plots from the Appellant, he did not hand over the title documents, nor real possession to the Respondent who bought same in good faith and the Respondent has also not been refunded its purchase price or expenses despite repeated failed promises from the Appellant.
The Respondent also claims that he entered into this contract based on the misrepresentation of facts by the Appellant who has so acted in bad faith and that the Respondent is no longer interested in going ahead with the contract.
On the other hand, by a writ of summons dated the 14th day of July, 2011, in Suit No: KDH/KAD/751/2011, the Appellant as Plaintiff filed an action against the Respondent as Defendant for the following reliefs:
1. A Declaration that by virtue of a deed of Assignment and sale agreement both dated 1st July, 2007 and duly executed between the Plaintiff and the Defendant, the Plaintiff had for valuable consideration which was mutually agreed upon; sold/assigned/transferred to the Defendant the two Plots referred to therein to wit: Plots Nos. “A‟ and “B‟ located at No. 7 Aliyu Makama Road, Barnawa, Kaduna.
2. A Declaration that the Plaintiff having sold/transferred to the Defendant Plots Nos. “A‟ and “B‟ located at No. 7 Aliyu Makama Road, Barnawa, Kaduna for valuable consideration which was mutually agreed upon, cannot refund the amount paid for the said plots to the Defendant about four (4) years after the conclusion of the transaction on the said plots.
3. AN order of perpetual injunction restraining the Defendant either by itself, agents, servants and privies howsoever from demanding from the Plaintiff the refund of the amount paid by it (the Defendant) as consideration for the said plots.
4. The cost of this suit to be assessed by the Honourable Court.
It is the claim of the Appellant in this suit that sometime on or about the 1st day of June, 2007 vide a Deed of Assignment and a sale agreement duly executed, he sold/assigned/transferred to the Respondent his 2 (two) plots known as Plots Nos. “A‟ and „B‟ situate at No. 7 Aliyu Makama Road, Barnawa, Kaduna (“the Plots”). The Appellant claims that the said plots were sold to the Respondent at a mutually agreed and negotiated sum of N9,000,000.00 (Nine Million Naira) only and the transaction was concluded and the Respondent took possession of the said plots and had proceeded to build a block wall round the said plots.
The Appellant also claims that sometime in 2011, the Respondent through its representatives/agents have continue to mount pressure on him for a refund of the sum of N9,000,000.00 (Nine Million Naira) only which it paid for the plots and that he had always told the Respondent that the transaction has been concluded and ought not to be revisited but the Respondent still insists on the refund.
On the 15th day of December, 2011, the two suits were consolidated on the application of parties and on the 18th day of April, 2012, pre-trial conference held and the case was adjourned to the 6th day of June, 2012 for hearing and Defence.
On the 6th day of June, 2012, the Respondent opened his case calling one witness, PW1. The Respondent opened its case on the same 6th day of June, 2012 wherein he called one witness – PW1 who tendered documents which were admitted and marked as Exhibits P1, P2 and P3 and then closed its case on the same date.
On the 1st day of August, 2012, the Appellant opened his case calling one witness – DW1 who tendered two documents which were admitted and marked as Exhibits D1 and D2 and then closed his case on the same 1st day of August, 2012.
The parties then filed and exchanged their respective final written addresses and adopted same on the 11th day of October, 2012 and the matter was adjourned for judgment.
On the 20th of November, 2012, the Court per Honourable Justice Hannatu A. L. Balogun, gave judgment in the Suit No. KDH/KAD/552/2011 wherein it gave judgment in favour of the Respondent.
Dissatisfied with the judgment of the trial Court, the Appellant filed a Notice of Appeal dated 23rd of November, 2012 and filed on the 26th day of November, 2012.
Only the Appellant filed his Appellant Brief of Argument in the appeal. The Appellant’s brief is dated the 22nd day of March, 2013 and filed on the 26th day of March, 2013. The said brief was settled by Ndasule Y. Sherrif Esq., wherein 3 (three) issues were raised for determination thus:
1. Whether the learned trial Judge was right to have admitted in evidence the unregistered Sale Agreement dated 1st June, 2007 at the trial and also proceeded to rely on same to arrive at its decision.
2. Whether the letter of offer of lease by the Federal Government does not confer legal title on the Appellant by virtue of the grant made.
3. Whether the Respondent successfully proved that it was entitled to its claim for special and general damages awarded to it by the trial Court.
The Appellant also filed a Motion on Notice for the appeal to be heard on only the Appellant’s brief alone for failure of the Respondent to file the Respondent brief within the time stipulated by the rules of this Court after same have been duly served on the Respondent and the application was granted on the 2nd day of June, 2022.
On issue one, the Appellant argued that by the Land Registration Law of Kaduna State Cap. 85, 1991 and going by the definition of an instrument therein, a sale agreement qualifies as a document touching on land and therefore is a registrable instrument. On this point, counsel referred this Court to the case of ADAJO OJONYE VS. ALHAJI SALISU IBRAHIM & 2 ORS (2002) 1 NWLR (PT. 747) PG. 166 AT 175 – 176 PARAS. H – A.
The Appellant’s Counsel also argued that the sales agreement ought to be registered before it can be admissible in a Court of Law. Counsel again referred to Section 15 of the Land Registration Law. The Appellant’s Counsel further submitted that from the record of proceedings at page 100, it appears very glaringly that the learned trial judge admitted in evidence photocopies of Sales Agreement dated 1st June, 2007 and Deed of Assignment also dated 1st June, 2007 as Exhibits P1A and P1B respectively even though they were not registered when in the circumstance, the trial judge ought to have ignored or declined to admit the two documents in evidence or rely on same in arriving at its decision having failed to comply with the mandatory requirement of law.
On issue two, the Appellant’s Counsel argued that the trial judge held in her judgment inter alia that since the Appellant do not possess a certificate of occupancy over the plots in dispute but only an offer from the Federal Government, the Appellant had no title to the land recognized by law as there was no evidence of any customary or other title. The Appellant’s Counsel further submitted that the issue in contention is as to whether the letter of offer by the Federal Government confers on the Appellant any legal title over the plots of land which he could in turn transfer to the Respondent and in the same vein, whether the same offer to another party which the Appellant also required also conferred him with legal title over the said plot of land.
The Appellant’s Counsel argued that the letter of offer issued by the Federal Government confers title to the disputed plots on the Appellant by virtue of the grant and counsel referred to the case of ALHAJI ADAMU YARO USMAN VS. ALHAJI AHMED MUHAMMADU JODA (1998) 13 NWLR (PT. 582) PAGE 374 AT 388 PARAS. C – D. Counsel further submitted that the letter of offer issued by the Federal Government raises a presumption in his favor and by extension in favor of the other party in respect of the other plot, that he is the owner of the plots and in exclusive possession in respect thereof. Counsel referred to the case of MISS CHINYE A. EZEANAH VS. ALHAJI MAHMOUD I. ATTA (2004) ALL FWLR (202) PG. 1858 AT 1892 PARAS E – F and further argued that a certificate of occupancy is neither a grant nor a title but is merely issued in confirmation of an already existing title made by a grant.
On the third issue, the Appellant’s Counsel argued that the trial Court awarded the sum of N1.2 Million as special damages and for it to be awarded it must be specifically pleaded. It must be particularized in the pleadings with respect to how it arose, the details of items making same up and values on each of them culminating in how the total sum claimed was arrived at. On this point, counsel referred the Court to the case of NEKA B.B.B. MANUFACTURING CO. LTD VS. AFRICAN CONTINENTAL BANK LIMITED (2004) ALL FWLR (PT. 198) PAGE 1175 AT 1201 PARAS G – H.
The Appellant’s Counsel further argued that the Respondent failed to prove neither by his statement of claim nor evidence at the Court below how it arrived at the 1.2 Million claimed for fencing the plots or that he was entitled to be awarded the sum as special damage. That the trial Court held in its judgment at page 117 of the Record of Appeal that since the Appellant did not cross-examine the Respondent on the amount of N1.2 Million, it was deemed admitted when at paragraph 13 of his statement of defence at the trial Court, he denied all the Respondent’s claim and urged the Court to dismiss and set same aside.
The Appellant’s Counsel submitted that on the award of N1 Million as general damages, such claim demands the same standard of proof as a claim for special damages just that a party claiming general damages is unable to place specific value on particular losses whilst it is incumbent on him to pin point the area of losses he suffered that has not been compensated by way of special damages. On this point, Counsel referred to the case of UNITED BANK FOR AFRICA PLC VS. SAMBA PETROLEUM CO. LTD & ANOR (2002) 16 NWLR (PT. 793) PG 361 AT 402 PARAS A – B.
Counsel further argued that general damages is not awarded as a matter of course and that its award in a claim for breach of contract will amount to double compensation for the Court to award special damages and general damages as they naturally flow from the Defendant’s breach of contract and thus urged the Court to resolve issue three in his favour.
RESOLUTION OF ISSUES
Having summarized the arguments of the Appellant, I shall now proceed to determine the appeal and in doing so, I shall adopt the issues for determination formulated by the Appellant.
ISSUE ONE
Whether the learned trial Judge was right to have admitted in evidence the unregistered Sale Agreement dated 1st June, 2007 at the trial and also proceeded to rely on same to arrive at its decision.
From the consolidated suit contained in the Record of Appeal, it is clear that the issue between the parties at the trial Court is one involving contract of sale of land by the Appellant to the Respondent just as it can be clearly seen from the Writ of Summons and Statement of Claim at the trial Court and Exhibits P1A and P1B which are not in dispute between the parties. However, the Appellant under this issue is now arguing that the trial Court was wrong to have admitted Exhibit P1A which is an unregistered sales agreement, in evidence.
I must make clear at this point that a land instrument is a vital document in proving legal title and equitable interest in land and just as the Appellant’s Counsel has argued under paragraph 4.3 of the Appellant Brief of Argument, an unregistered land instrument is not admissible but this relates to when it is used to prove a claim of title to land. However, such unregistered instrument is admissible to prove payment of money, possession, or an equitable interest in land. See the cases of OJUGBELE VS. OLASOJI (1982) 4 SC 31, AKINTOLA & ANOR VS. SOLANO (1986) 2 NWLR (PT. 24) 589, OGBIMI VS. NIGER CONSTRUCTION LTD (2006) 9 NWLR (PT. 986) 474 and ANYABUNSI VS. UGWUNZE (1995) 6 NWLR (PT. 401) 255.
The Respondent, as is clear from the record of appeal, was asking for a refund of his consideration for the land in dispute for one of the reasons being that the Appellant had failed to perfect his title as promised and as contained in the said Exhibit P1A and not that he was contesting he had title to the land. If the later was the case, then the argument of the learned Appellant’s Counsel would be tenable. The case of ADAJI OJONYE VS. ALHAJI SALISU IBRAHIM & 2 ORS (2002) 1 NWLR (PT. 747) PAGE 166 AT 175 – 176 cited by the Appellant’s Counsel is not related to the instant case as same bothers on a claim for declaration of ownership to land and which requires proof of such ownership to be so entitled and likewise the case of OREDOLA OKEYA TRADING CO. VS. A. G. KWARA STATE (1992) 7 NWLR (PT. 254) P. G. 412. Thus, Section 15 of the Land Registration Law as cited by the Appellant’s Counsel is not applicable in this proceeding.
It is also pertinent to note that the trial Court mentioned in its judgment as contained at page 118 of the Record of Appeal where he gave its reason for admitting the said Sales Agreement thus:
“The said Plaintiff who testified as DW1 in the consolidated case agreed that he does not have a certificate of title over the land neither does the alleged owner of Plot 7B. Thus no title passed to the Defendant Company. Furthermore, the deed of assignment and sale agreement relied upon by the Plaintiff (Appellant) as evidence of transfer of title are both admissible for that purpose being unregistered instruments.”
Conclusively therefore, if no title had passed as decided by the learned trial judge and which findings this Court will not go through the pains of re-hatching, then, I see no reason why the Sales Agreement should not have been admitted by the trial Court, and I so hold. It is trite law as this Court has always emphasized, that it would not normally intervene in the evaluation of evidence of trial Courts or substitute its own views with that of the trial Court except in very rare circumstances which are:
a. Where the trial judge failed to make proper use of his opportunity of seeing, hearing and observing the witnesses; or
b. Where he failed to exercise his discretion properly or judiciously;
c. Where the trial judge drew a wrong conclusion from the accepted evidence or formed an erroneous view thereon; or
d. Where the finding or evaluation are perverse.
See generally, the cases of OLADO VS. JOSIAH (2011) ALL FWLR (PT. 573) PG. 1 SC, MOGAJI VS. ODOFIN (1978) 4 SC 91 and MORENIKEJI VS. ADEGBOSIN (2003) FWLR (PT. 163) 45.
This is not the situation in the instant case, thus I do not see any reason under this issue why this Court should tamper with the evidence and decision of the learned trial Court. Again, based on my findings, it is my unshaken view that the learned trial judge was right to have admitted in evidence the unregistered Sales Agreement dated 1st June, 2007 at the trial and also proceeded to rely on same to arrive at its decision.
This issue is thus therefore resolved against the Appellant in favour of the Respondent.
ISSUE TWO
Whether the letter of offer of lease by the Federal Government does not confer legal title on the Appellant by virtue of the grant made.
Reading the judgment of the trial Court, it is my opinion that the Court in considering whether the Respondent has proved its case on a balance of probabilities or preponderance of evidence as to be entitled it to its claim, considered the transaction between the Appellant and the Respondent as a whole in order to determine same. Looking at the judgment, the trial Court at page 114 – 116 of the Record of Appeal held thus:
“The question is has the Plaintiff discharged the burden of proof on him as to entitle him to refund of this purchase price of N9m from the Defendant?
From the facts of this case, it is clear that the defendant had intended to sell plots Nos. 7A and 7B Aliyu Makama Road Barnawa Kaduna and the Plaintiff intended to buy the said plots.
It is true there was offer and acceptance.
It is true that that the Plaintiff had given consideration for the plot in the sum of N9m to the Defendant but was the defendant able to pass title of the said plots to the Plaintiff?
The DW1 who is the Defendant himself has averred that neither he nor the alleged owner of Plot 7B had any certificates of occupancy over the said plots 7A and 7B.
All the defendant and the said man were said to have had was an offer of lease by the Federal Government. There is nothing to show that the lease was perfected culminating into the issuance of a C of O as is the normal practice.
In short, the defendant and the said Alhaji Musa had no titles to the land recognized by law as there was no evidence of any customary or other title. It is trite that there are 5 generally recognized ways of proving title to land… In the present case. It is the title documents that the defendant relied on as his interest in the land which was to be transferred to the Plaintiff.
…
The answer is nothing. A person cannot sell what he does not yet have. The offer itself is not a title that can be sold. The PW1 said that when he saw that some staff of the Federal Ministry of Housing were involved, he assumed the defendant had valid title but as has been shown, he had none.
Even from the wording of the sale agreement, the Defendant was to assist the Plaintiff to perfect his title. This was never done. This means that even if the Defendant and the alleged donor of power of attorney had titles to pass, if the titles could not be perfected according to law e.g. if the Governor withheld consent, the sale could not be said to be concluded.
In the present case, the defendant did nothing to perfect his own title let alone that of the Plaintiff.”
From the above, it is not only that the trial Court held that the Appellant and Alhaji Musa had no titles to the land as there was nothing to show that the offer of lease was perfected, there is an issue of an agreement to perfect the title by the Appellant which he failed to comply with and which was also confirmed by the DW1 when he gave evidence under cross-examination contained at page 105 of the record of appeal that:
“… Alh. Ibrahim Umaru also does not have C of O only an offer letter.
I knew that the two of us i.e. I and Alh. Umaru were supposed to get the C of O to the lands.
I sold the two plots of land without the certificates of occupancy and it was agreed like that that was why it stated in the agreement that the C of O will be given later.”
To my mind, the issue is not whether the offer of lease by the Federal Government does not confer legal title on the Appellant but the main consideration for determination was did the Appellant keep to his agreement as contained in Clause 3 and 5 of the Sales Agreement which provides as follows:
CLAUSE 3
“The vendor shall hand over immediately to the purchaser upon receiving the sum of … N9, 000,000.00 (Nine Million Naira Only). As full and final payment for this transaction, all original title documents and any other document relating to the said property or connected therewith. Original Certificate of Occupancy to be followed thereafter.”
CLAUSE 5
“The vendor covenant to assist the purchaser to perfect the title needs relating to this sale.”
One thing that comes to mind again is why would the Appellant undertake to perfect a perfect title? The argument of the Appellant on this issue appears to me as one who has ran to the law for protection when he has failed to keep to his own part of the agreement. The law cannot be used as a shield in this case because it is trite that parties are bound by the terms of their agreement. See the case of OBANYE VS. UBN PLC (2018) 17 NWLR (PT. 1648) 375. The act of the Appellant constituted a breach of the terms of the sales agreement as above and thus it is legally imperative on the Court to give meaning to the intention of the parties as contained in the sales agreement and in addition to all I have said hereinabove, I have no other option than to agree with the findings and decision of the trial Court on this issue.
This issue is thus therefore resolved against the Appellant.
ISSUE THREE
Whether the Respondent successfully proved that it was entitled to its claim for special and general damages awarded to it by the trial Court.
With regard to the argument of the Appellant on this issue and with respect to the award of special damages of N1.2 Million, my consideration of the judgment of the trial Court is that the burden of proof of damages for breach of contract is on the Plaintiff (in this case the Respondent) and where its evidence is unchallenged, as in this case whereby the Respondent stated in its statement of claim to have incurred an expenses of N1.2 Million for fencing the plots in dispute and where the Appellant agreed during his evidence in cross-examination that after the transaction, the Respondent fenced the property and did not challenge the said sum, the burden of proof is discharged on a minimum proof.
In awarding damages in an action founded on breach of contract, the rule to be applied is restitutio in integrum, that is, in so far as the damages are not too remote the Plaintiff shall be restored, as far as money can do it, to the position in which he would have been if the breach had not occurred. See the cases of MEDICAL AND DENTAL COUNCIL OF NIG VS. SYSTEM INFORMATION LTD (1998) 12 NWLR (PT. 572) PAGE 258 and UDEAGU VS. BENUE CEMENT CO. PLC (2006) 2 NWLR (PT. 965) PAGE 600.
Also, with regard to the argument of the Appellant’s Counsel against the award of damages by the Court, the law is that apart from damages naturally resulting from the breach of contract, no other form of general damages can be awarded. However, where breach of contract is established, the Court is allowed upon a judicious assessment of the prevailing circumstances to award general damages as the Court would presume to be the direct natural and probable results of the acts complained of which need not be strictly proved unlike special damages. See the case of UTC (NIG) PLC VS. PHILIPS (2012) 6 NWLR (PT. 1295) 136 AT 46. I am thus of the strong view that the award of N1 Million to the Respondent as against the N5 Million sought for by it was rightly done and need not be disturbed. See the case of JOHNSON WAX (NIG) LTD VS. SANNI (2010) 3 NWLR (PT. 1181) 235 CA AT 241.
In conclusion therefore, and considering all that have been said, it is my humble view and in agreement with the decision of the trial Court, that this issue is resolved against the Appellant and I so hold.
In the circumstances, I agree with the judgment of the trial Court below in its entirety. This appeal fails and it is accordingly hereby dismissed. I make no further order as to cost.
AMINA AUDI WAMBAI, J.C.A.: I have read the leading judgment just delivered by my learned bother, MOHAMMED BABA IDRIS, JCA. I agree with his reasoning and conclusion that there is no merit in the appeal. I too dismiss the appeal and affirm the decision of the lower Court.
ABUBAKAR MAHMUD TALBA, J.C.A.: I had the opportunity of reading in draft the lead judgment of my learned brother, MOHAMMED BABA IDRIS, JCA. I agree with his reasoning and conclusions that this appeal fails. It is also dismissed by me.
I abide by the order(s) in the lead judgment.
Appearances:
S. Y. Ndasule, Esq. For Appellant(s)
…For Respondent(s)