AWONUGA v. DANIEL & ORS
(2022)LCN/16320(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Friday, September 02, 2022
CA/K/553/2019
Before Our Lordships:
Amina Audi Wambai Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
1. DAYO AWONUGA APPELANT(S)
And
1. MR. PATRICK DANIEL 2. J. AREMU (Carrying On Business Under The Name & Style Of J. Aremu & Associates) 3. SAMSON KAYODE OLAYELE RESPONDENT(S)
RATIO
WHETHER OR NOT A PARTY CAN BE ALLOWED TO APPROBATE AND REPROBATE ON A MATTER
It is trite law that a party cannot be allowed to approbate and reprobate. The Appellant’s counsel tried to argue issue one by focusing on Exhibit 4, and now on issue three, he is saying that Exhibit 4 is of no effect and this Court should focus on Exhibit 1. The Appellant cannot be allowed to blow hot and cold in respect of the same issue. A party must be consistent at all times when presenting his case. It is trite law that a party cannot approbate and reprobate. See generally, the cases of NAFDAC VS. ONWUKA (2014) 4 NWLR (PT. 1398) AT 618 PARAS F – G and ABUBAKAR GCON & ORS VS. YAR’ADUA & ORS (2008) 4 NWLR (PT. 1078) PAGE 465.
In the case of UDE VS. NWARA (1993) 2 NWLR (PT. 278) AT PAGE 662, it was held per Nnaemeka Agu, JSC that:
“A man is not allowed to blow hot or cold, to affirm at one time and to deny at the other, or as it is said, to approbate or reprobate.” PER IDRIS, J.C.A.
THE OBJECTIVE OF AN AWARD OF GENERAL DAMAGES
The object of an award of general damages is to compensate the Plaintiff, as far as money can do so, for the damages, loss or injury he has suffered. The guiding principle is restitution in integrum. It envisages that a party which has been damnified by the act which is called into question must be put in the position he would have been if he had not suffered the wrong which he is now being compensated for. In other words, the loss inevitably and unavoidably flows from the breach.
In the Supreme Court case of IJEBU ODE LOCAL GOVERNMENT VS. ADEDEJI BALOGUN & CO LTD (1991) LPELR – 1463 (SC), it was held per Kabiri-Whyte, JSC that:
“In cases of breach of contract, assessment of damages is calculated on the loss sustained by the injured party which loss was either in the contemplation of the contract or is an unavoidable consequence of the breach.” PER IDRIS, J.C.A.
THE MEANING OF THE TERM “SUBJECT TO CONTRACT”
I have taken it upon myself to painstakingly read the said case of I. T. I. VS. ADEREMI (SUPRA) and I must say that I am taken aback at the sheer display of unprofessionalism by the Appellant’s counsel by misquoting and misrepresenting what the Supreme Court intended. The Supreme Court held in the said case of I. T. I. VS. ADEREMI (SUPRA), per Uwaifo, JSC thus:
“Subject to contract‟ in that sense is, in my opinion, no more than an exotic, though convenient, phrase which is employed to meet the various intricate statutory and professional requirements in English conveyancing practice. This is achieved in a common sense approach to meet the intention of the contracting parties by opting to make it a safety device, whatever agreement is reached in land sale subject to contract. The observation of Lord Greene, M.R., in Spottiswoode Ballantyne & Co. Ltd v. Doreen Appliances Ltd (1942) 2 All ER 65 at p. 66 appears to explain the effect of introducing such expression as “subject to the terms of a formal agreement to be prepared” by the solicitor. He said:
“the language used here is equivalent to the common and more concise phrase “subject to contract‟ and if anything is settled, it is that the phrase is one which makes it clear that the intention of the parties is that neither or them is to be contractually bound until a contract is signed in the usual way.”
Of course, it must be conceded that when the phrase “subject to contract” is employed in an appropriate situation, with a clear measure of intention, there can be no valid contract until formal contracts are exchanged. I think that was in essence what Lord Denning M.R. conveyed in Sherbrooke v. Dipple (1980) 41 P & CR 173 at 176 when he observed….” PER IDRIS, J.C.A.
THE DOCTRINE OF SPECIFIC PERFORMANCE
In the Supreme Court case of ACHONU VS. OKUNOBI (2017) LPELR – 42102 PAGE 31 PARAS B, it was held per Rhodes-Vivour, JSC that the nature of the doctrine of specific performance states that:
“Specific performance is an equitable remedy given at the discretion of a judge when satisfied that legal or common law remedy, e.g. damages would not meet the ends of justice.”
In the case of IBEKWE VS. NWOSU (2012) N.N.S.C.L.R. (PT. 2) 136 AT 146 PARAGRAPHS C – D, the Supreme Court per Fabiyi, JSC, again held:
“Specific performance is the remedy requiring the exact performance of a contract in the specific form in which it was made or according to the precise terms agreed upon. It is the actual accomplishment of a contract by a party bound to fulfill it. The doctrine of specific performance is that where monetary damages would be an inadequate compensation for breach of an agreement, the contractor or vendor will be compelled to perform specifically what he has agreed to do. He can, for example, be ordered to execute a specific conveyance of land.” PER IDRIS, J.C.A.
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): The Appellant herein, who was the plaintiff at the trial Court, filed four Amended Writ of Summons and Amended Statement of Claim at the High Court of Justice sitting in Kaduna, against the 1st and 2nd Respondents, as defendants before the said Court and eventually seeking the following reliefs:
(1) A DECLARATORY ORDER of this Honourable Court that the property No 4, Mukhar Muhammed Road, Nurayi-High Cost, Kaduna South, Kaduna have been sold to the Plaintiff at all times prior to an alleged sale to the 3rd Defendant.
(2) AN ORDER of this Honourable Court setting aside the purported sale of the property lying and situate at No Mukhtar Muhammed Road Narayi High Cost Kaduna South to the 3rd Defendant.
(3) AN ORDER of this Honourable Court declaring NULL and VOID any other title in favour of any person(s) corporate or incorporate which covers or superimposed on the property already vested in the Plaintiff.
(4) AN ORDER of specific performance that the Plaintiff pay the Defendant the balance of N10,200,000 as full and final payment for the property.
(5) AN ORDER of this Honourable Court setting aside ALL or ANY of title created in favour of any person corporate or incorporate which title runs contrary to pre-existing and subsisting title of the Plaintiffs.
(6) AN ORDER of this Honourable Court restraining the Defendants from perfecting any title, beneficial, tenurial and of whatever form in favour of any other person, corporate or incorporate except to formalize and specifically to grant the issuance of the statutory right of occupancy in favour of the Plaintiff.
(7) AN ORDER of perpetual injunction against the Defendants, their agents and those claiming authority and on behalf of the Defendant jointly and severally from interfering with the possession and ownership of the Plaintiff which he has acquired.
(8) General damages.
(9) The cost of this suit.
The Appellant who is a doctor, claimed that he was approached by the 1st Respondent and informed about a parcel of land which was for sale on the firm assurance that the land was free from all encumbrance. The Appellant agreed to purchase the land for the sum of N18,000,000. The Appellant then gave the sum of N3,000,000 as part payment and was to pay the balance of N15,000,000 on or before the 28th of August, 2010. A partial sale agreement was executed in his favour.
The Appellant then informed the 1st Respondent that he had applied for a loan from Aso Savings & Loans PLC which was sought for the purpose of balancing the payment for the land. On the date agreed for the payment of the balance of the contract sum, the Appellant could not pay up the entire balance as the loan he applied for was yet to mature, then a 2nd partial sales agreement was again drawn on the 12th of November, 2010 and the Appellant paid the sum of N5,300,000 leaving a balance of N10,200,000 to be paid on or before the 28th of April, 2011.
The Appellant claimed that he tried his best to make final payment before the deadline given but there was no cash available at his bank’s branch due to the crisis in Kaduna. The Appellant claimed that on the 30th of April, 2011, the 2nd Respondent called the Appellant, asking for the balance and the Appellant explained his inability to pay because it was a weekend and there was a public holiday.
The Appellant claimed that on the 3rd day of May, 2011, he signed a cheque and gave it to the 1st Respondent and that the 1st Respondent refused to accept it on the grounds that the contract had lapsed and he (the Appellant) has breached the contract. The Appellant averred that he heard from a reliable source that the reason why the 1st Respondent refused to collect the money was because they have a higher bidder whom they intend to sell to. The 1st Respondent eventually sold the property to the 3rd Respondent for the sum of N27,000,000.
The 1st Respondent on his part filed his Statement of Defence, stating that the Appellant asked for the original title documents of the land in order to get a loan but he refused and he gave him a letter to enable him secure the loan. The 1st Respondent further stated that he travelled down to Nigeria from Holland where he lives to collect his balance but the Appellant could not pay same and that he terminated the contract when the Appellant failed to pay and he informed the Appellant that he had sold the property to another person. The 1st Respondent stated that the Appellant really frustrated the contract by procrastinating payment. The 1st Respondent stated that he was ready to refund to the Appellant the already paid sum of N8,300,000.
The 2nd Respondent is the real estate manager of the 1st Respondent and he liaised with the Appellant all through the land sale transaction.
The 3rd Respondent who was the person the 1st Respondent finally sold the property in dispute to, was joined as a party. The 3rd Respondent filed his Statement of Defence wherein he averred that he did not know the Appellant and the 2nd Respondent and that he conducted a search on the property in issue at the Kaduna State Development and Property Company Limited (KSDPC) and he found that the title was clean and unencumbered. The 3rd Respondent said he paid the sum of N27,000,000 for the property and had taken possession of the property.
At the trial, the parties called their respective witnesses in proof of their cases. At the end of trial, the parties filed and adopted their respective final written addresses and the matter was adjourned for judgment.
While delivering judgment in the case, the learned trial judge held that the 3rd Respondent was a bonafide purchaser for value without notice, having no knowledge of any prior transaction between the Appellant and the 1st and 2nd Respondents. It was held that the Appellant was not able to establish any legal or equitable interest in the property in question. The learned trial judge also held that the Appellant had not been able to establish his claim against the Respondents as required by law as to entitle the Appellant to the reliefs sought for in his claim. The trial Court then ordered the 1st Respondent to refund the sum of N8,300,000 to the Appellant.
Dissatisfied with the judgment of the trial Court, the Appellant filed a Notice of Appeal dated the 18th day of April, 2019 raising 4 (four) grounds of appeal.
The Appellant also filed his brief of argument dated the 2nd day of November, 2020 which was settled by Y. A. Yussuf, Esq., In the said Appellant brief of argument, 4 (four) issues where distilled for determination as follows:
(1) Whether or not, in the circumstance of a default or an absence of appraisal or evaluation of Exhibit 8 by the trial Court, its funding or decision again the Appellant is either justifiable or sustainable? (Distilled from Ground 1 of the Notice of Appeal)
(2) Whether or not, the trial Court misconceived the thrust of the case presented by the parties and thus, arrived at the conclusion that the awareness of Appellant of the sale of the property to the 3rd Appellant exonerated the culpable acts of the 1st Respondent and validated his acts of breach? (Distilled from Ground 2 of the Notice of Appeal)
(3) Whether or not, upon preponderance of evidence and balance of probability the Appellant proved his case before the trial Court? (Distilled from Ground 3 of the Notice of Appeal)
(4) Whether, having regards to the laws, evidence and facts relevant to fair and just determination of the case between the parties, the judgment of the trial Court occasioned a miscarriage of justice to the prejudice of the Appellant? (Distilled from Ground 4 of the Notice of Appeal)
On issue one, the learned counsel for the Appellant submitted that from the facts of the case, there is a novation of contract supported by valuable consideration. It was argued that Exhibit 1 had been substituted with Exhibit 4, thus, the consideration of the breach or otherwise of Exhibit 1 becomes moot and purely academic. It was argued further that Exhibit 4 remained the contract the trial Court ought to have accessed and determined and in doing so, equal assessment of the existence and effect of Exhibit 8.
The Appellant’s counsel also contended that the trial Court arrived at the decision that it was the Appellant that breached Exhibit 4 without reference to or consideration of the legal effect of Exhibit 8 on the contractual rights and obligations of parties. It was then submitted that it is trite law that where a person’s legal right or obligation is called to question, he should be accorded full opportunity to be heard before any adverse decision is taken against him with regard to such right or obligation, and that the principle of fair hearing is fundamental to all Courts, procedures and proceedings and like jurisdiction, the absence of it vitiates the proceedings, however well conducted. The cases of EKPETO VS. WANOGHO (2004) 12 SCNJ 220 AT 230 and AMAO VS. ALABI (2003) 9 M.J.S.C. 1 AT 11 PARA E were relied on.
On issue two, the Appellant counsel it was as submitted that a party who had benefitted immensely from a transaction that is dishonest and morally wrong cannot seek refuge in acts of breach of the contract, the existence of which he knew or believed to be false. It was also submitted that the trial Court arrived at a wrong conclusion that the Appellant still continued transacting with the 1st Respondent knowing fully well that he had sold the property to the 3rd Respondent, thus misrepresenting the attitude and person of the Appellant. It was further argued that it is trite law that a judge misdirects himself if he misconceived the issue or summarized the evidence inadequately or incorrectly or makes a mistake on the law. Reference was made to the case of OSHO VS. APE (1998) 6 SCNJ 139 AT 155 LINES 30 – 32.
On issue three, learned counsel for the Appellant argued that the trial Court did not fully and totally evaluate the evidence before it so as to enable it find merit in the Appellant’s claims and grant them. It is the Appellant’s contention that when the 1st Respondent sold the property to the 3rd Respondent, he did not inform the Appellant nor refund his part payment, thus the attitude of the 1st Respondent had revived the contract and his indulgence is consistent with clear intention to waive the alleged non-performance and the time stipulated to pay the said balance is no longer of the essence of the contract. The cases of UDOM VS. MICHELETTI (1997) 7 SCNJ 447 AT 464 LINES 28 – 30 and BAKARE VS. L.S.C.S.C. (1992) 10 SCNJ 173 AT 229 LINES 6 – 11 were cited in support.
It was also argued that damages based on the breach of the contract between the parties and his failure to state a specific amount was an oversight of counsel. Counsel then asked what would be the reasonable award of damages if subjected to a reasonable man’s test, and that based on his calculations, he arrived at the sum of N9,000,000 which was urged on this Court to grant in the Appellant’s favour.
On issue four, the learned counsel for the Appellant submitted that a party to a transaction marked as “subject to contract” cannot renege on the terms of the transaction as they are itself a contract that is binding on the parties. The case of I.T.I. VS. ADEREMI (1999) 6 SCNJ 46 AT 67 was cited in support.
It was argued further that the position held by the trial Court that the Appellant’s breach of Exhibit 4 afforded the 1st Respondent the right to terminate the contract was wrong because the alleged termination of Exhibit 4 by Exhibit 14 was totally frivolous and inconsequential. It was submitted that the trial Court misdirected itself by holding so, and that if the trial Court below had made a fair appraisal of the case before it, it would have considered an award of damages in favour of the Appellant as an alternative to the order of specific performance. Reliance was placed on the case of EZENWA VS. OKO & ORS (2008) LPELR – 1206 (SC) PAGE 17 PARA D – F.
This Court was then urged to allow this appeal.
The 3rd Respondent on his part filed his brief of argument dated the 30th day of December, 2021 which was settled by Olugbenga E. Ogunniran, Esq., In the 3rd Respondent’s brief of argument a sole issue was distilled for determination as follows:
Whether the 3rd Respondent is a purchaser for value without notice of equitable interest of the Appellant?
The Learned counsel for 3rd Respondent submitted that the 3rd Respondent is a bonafide purchaser of value without notice because he entered into a sale agreement dated the 24th day of September, 2010 with the 1st Respondent and that the 3rd Respondent made a part payment of N9,000,000 and later paid a total sum of N27,000,000 after he conducted a search at the Kaduna State Development and Property Company Ltd where he found out that the land was not encumbered. It was submitted that the 3rd Respondent confirmed the genuineness of the 1st Respondent’s title from the Real Estate managers of the property and that the 3rd Respondent had no knowledge of the prior sale agreement between the Appellant and the 1st Respondent and the equitable interest of the Appellant in the property.
It was further submitted that it is the position of the law that where a claim of bonafide purchaser for value without notice is being made, there must be a valid transfer of the property to the person raising that plea as held in the case of WEST AFRICAN COTTON LTD VS. YANKARA (2004) ALL FWLR (PT. 402) PAGE 1192 at 1205 – 1206 PARAS G – A. It was then submitted that there was a valid transfer of the property in dispute from the 1st Respondent to the 3rd Respondent.
It was argued further that it is only a subsequent bonafide purchaser of the legal estate for value without notice that takes priority over someone who had acquired a prior equitable interest over the same property and this Court was urged to hold that the 3rd Respondent is a bonafide purchaser of the property in dispute.
The learned counsel for the 3rd Respondent also argued that the Appellant never received title or any title document in respect of the property from the 1st Respondent and neither did he ever enter into possession of the property and thus, every equitable interest he had in the land would be defeated by the legal title conferred on a bonafide purchaser without notice. Reference was made to the case of MUSTAPHA VS. ABUBAKAR (2012) ALL FWLR (PT. 651) PAGE 1519 at 1536 PARAS B – C.
In response to issue two of the Appellant’s brief, learned counsel for the 3rd Respondent submitted that there was no dispute of misrepresentation and fraud, and that it is trite law that a bonafide purchaser for value is not affected by the transferor’s fraud against a third party and has a superior right to the transferred property as against the transferor’s creditor to the extent of the consideration that the purchaser has paid as held in the case of OPARA VS. BRIGGS (2016) ALL FWLR (PT. 822) PAGE 117.
It was submitted further that it is a rule of equity that he who comes to equity must come with clean hands, and that the Appellant was in breach twice in the sale agreement between him and the 1st Respondent and thus, his conduct was not equitable. The case of EJUETAMI VS. OLAIYA (2002) ALL FWLR (PT. 88) PAGE 955 AT 983 PARAS D was cited in support.
It was then submitted that the rule of equity cannot approbate and reprobate because the Appellant was economical with the truth and contradicted himself several times, and thus, his evidence was at complete variance with his pleadings. The case of A. G. RIVERS STATE VS. A. G. AKWA IBOM STATE & ANOR (2011) LPELR – 633 (SC) PP 174 – 175 PARAS G – F was cited in support.
Finally, it was submitted that an appellate Court can only interfere with the decision of the Court below when it is perverse or based on evidence not presented in Court or occasioned a miscarriage of justice. Reference was made to the case of ADDISON UNITED (NIG) LTD VS. LION OF AFRICA INS. LTD (2011) ALL FWLR (PT. 594) PAGE 130. It was then submitted that the trial Court was right to have held that after the evidence adduced by the parties were put on an imaginary scale, that of the Respondents was more probable and true than that of the Appellant.
This Court was urged to dismiss this appeal with substantial cost and affirm the decision of the trial Court.
In response, the Appellant filed a Reply Brief to the 3rd Responden’s brief of argument, dated the 15th day of April, 2022 and settled by S. M. Rufai, Esq.
The Appellant contended that the sole issue for determination distilled by the 3rd Respondent did not arise from any ground of appeal and neither did the 3rd Respondent specify the ground of appeal from which the issue was distilled. It was argued that the said issue for determination had no relationship, affinity or connection with the four grounds of the appeal. It was then submitted that where an issue for determination is not related to any ground of appeal, it is incompetent. Reliance was placed on the cases of ANIMASHAUN VS. UCH (1996) 12 SCNJ PAGE 179 AT 184 and ODUTAN VS. GEN. OIL LTD (1995) 4 SCNJ 145 AT 149 – 150.
It was further submitted that the defect of the 3rd Respondent’s brief is not limited to only the issue but it also extends to the submission made thereon. It was also argued that an issue for determination cannot arise from a hypothetical assumption.
This Court then was urged to strike out the sole issue for determination raised by the 3rd Respondent.
RESOLUTION OF THE ISSUES
I have read thoroughly the briefs of argument filed by the Appellant and the 3rd Respondent respectively and I will now proceed to determine same. I can see that the 1st and 2nd Respondents did not file any brief of argument. In resolving this appeal, I shall adopt the issues for determination formulated by the Appellant so as to have a thorough analysis of this appeal. The issues are again reproduced hereunder as follows:
(1) Whether or not, in the circumstance of a default or an absence of appraisal or evaluation of Exhibit 8 by the trial Court, its funding or decision again the Appellant is either justifiable or sustainable
(2) Whether or not, the trial Court misconceived the thrust of the case presented by the parties and thus, arrived at the conclusion that the awareness of Appellant of the sale of the property to the 3rd Appellant exonerated the culpable acts of the 1st Respondent and validated his acts of breach?
(3) Whether or not, upon preponderance of evidence and balance of probability the Appellant proved his case before the trial Court?
(4) Whether, having regards to the laws, evidence and facts relevant to fair and just determination of the case between the parties, the judgment of the trial Court occasioned a miscarriage of justice to the prejudice of the Appellant?
ISSUES ONE AND TWO
In the case of EZENWA VS. K. S. H. S. M. B. (2011) 9 NWLR (PT. 1251) PAGE 89 AT 118 PARAS B – C, the Supreme Court held that:
“Where a case is fought on pleadings supported by documentary evidence, oral evidence should not be allowed to contradict the clear terms of the documents since the task before the Court is to interpret or construct the terms of the said exhibits.”
In the case ASHAKACEM PLC VS. ASHARATUL MUBASHSHURUN INVESTMENT LTD (2019) LPELR – 46541, the Supreme Court also held:
“It is now trite in law that oral evidence is inadmissible either to add to or subtract from the contents of a document as a document speaks for itself with the result that parties cannot give evidence contrary to its contents. It follows therefore that no burden of proof rests on the Appellant to discharge on the interpretation of contractual documents since the primary duty in interpretation of documents is placed squarely on the Court and the Court discharges that duty without the aid of oral evidence. The task is carried out by the Court within the case fought on pleadings supported by documentary evidence which precludes oral evidence beclouding or contradicting the clear terms of the documents.”
When parties to a suit have filed their pleadings and supported same with documentary evidence, the document speaks for itself. Even though some documents can draw strength from each other, the terms or content of each document must be read holistically for proper interpretation of same.
The Appellant in this case, has argued that he had an agreement marked as Exhibit 1 executed on the 30th day of July, 2010 between him and the 1st Respondent to pay the sum of N15,000,000 on or before the 28th day of August, 2010. He however failed to meet up with the deadline to finalize the payment.
The Appellant however pleaded with the 1st Respondent and another agreement was made and executed on the 24th day of September, 2010 on the clear terms that payment of the sum of N10, 200,000 be made on or before the 30th day of April, 2011.
The Appellant counsel has now argued that the Appellant paid the sum of N5,000,000 to the 1st Respondent as further deposit and that the 1st Respondent accepted and thus, it amounted to a novation of contract supported by valuable consideration.
The Appellant then made reference Exhibit 8 which is a Deed of Assignment executed between the 1st and 3rd Respondents for a total consideration of the sum of N27,000,000 in respect of the property even though the Appellant had the grace period extending to the 30th day of April, 2011 and thus, it was the 1st Respondent that breached the agreement and not him, the Appellant.
I understand the anger and frustration of the Appellant. To be sincere, the 1st Respondent did not conduct himself in a morally upright manner. 1st Respondent entered into a sale agreement with the 3rd Respondent during the grace period given to the Appellant to complete the payment. However, legality is the business of the Court and not the moral uprightness of the parties involved.
Thus, each agreement must be read independently and the terms adhered to strictly. The 2nd partial agreement marked as Exhibit 4 is the agreement between the Appellant and the 1st Respondent. That is the only and main contract that was to determine the rights of both of them. A breach of any of the terms of the contract would repudiate the contract in favour of the party not in breach. The question that arises now is: did the Appellant and the 1st Respondent fulfill their respective rights and obligations under the contract?
I have read through the contents of Exhibit 4 and I can clearly see that the Appellant was given the grace period of the 30th day of April, 2011 to complete payment for the property in issue. However, the Appellant himself, in his pleadings and while giving evidence during the hearing of the matter, admitted that he failed to meet up with the payment.
On page 335 of the Record of Appeal, the Appellant averred in his Amended Statement of Claim as follows:
“15. That on Saturday the 30th day of April, 2011, the 2nd Defendant called on the Plaintiff asking for the balance of the contract sum.
16. That the Plaintiff informed the 2nd Defendant that the balance sum was ready for payment but that the bank was not opened to make payment on that Saturday since the bank don’t operate on that Saturday.
17. That the Plaintiff further informed the 2nd Defendant that the next available date the payment could be made was on the 3rd of May, 2011 being that the 1st May, 2011 is on a Sunday (Workers day) and the 2nd of May, 2011 was also declared a public holiday and banks will not operate on these above mentioned days.
18. That sometimes on the 3rd day of May, 2011, the Plaintiff signed a cheque in the balance sum and took to the 2nd Defendant who rejected same on grounds that the contract has elapsed by one day and that he was in breach of the contract and thus the contract was terminated…
19. That the plaintiff had paid a total sum of N8,300,000 in respect of the said property and is willing and ready to pay up the balance of the contract sum more so as the money is ready for payment.”
From the above quoted averments, it is clear that it is the Appellant that is in breach of the agreement marked as Exhibit 4. The existence and contents of Exhibit 8 did not contribute to the breach by the Appellant of the terms of Exhibit 4. The argument of the Appellant‟s counsel is therefore baseless and unfounded in law.
Yes, the 1st Respondent ought not to have executed a Deed of Assignment (Exhibit 8) with the 3rd Respondent during the grace period given to the Appellant, yet has the Appellant been able to establish how Exhibit 8 made him default in fulfilling the obligation expected of him to complete payment before the 30th day of April, 2011? Was it the existence of Exhibit 8 (Deed of Assignment between 1st and 3rd Respondents) that caused the crisis in Kaduna State or closed the banks? Was it Exhibit 8 that made the Appellant fail to make payment up until the 3rd day of May, 2011, three days after the deadline?
The Appellant failed woefully in establishing a causation link of how Exhibit 8 had any effect at all on Exhibit 4 and thus, the Appellant cannot raise the issue of fair hearing when he did not present any argument to be heard in the first place. Exhibit 8 came alive immediately the Appellant breached the terms of Exhibit 4 and so, it is very much capable of transferring valid legal title to the 3rd Respondent. To my mind, the 1st Respondent had the sale agreement with the 3rd Respondent while waiting for the grace period given to the Appellant because of the uncertainty he had as to the ability of the Appellant to pay the balance because of his previous breach. Well, these are my thoughts.
If the Appellant had not breached the terms of Exhibit 4 and had make complete payment of the purchase sum on or before the 30th April, 2011, I am sure every and any Court in Nigeria will stand in his defence and give judgment in his favour. As it is, “He who comes to equity must come with clean hands” comes into play in this instance. You cannot be in breach and then start pointing fingers at other extraneous issues. It is unheard of.
As for the issue of misrepresentation, the argument of Appellant’s counsel in this regard is misconstrued. For there to be a misrepresentation, a person must have been told something, relied on it and then found out it was false. I am sure the Appellant was not aware of Exhibit 8 until he defaulted in payment and was informed by the 1st Respondent of his intention to repudiate the contract and the subsequent sale to the 3rd Respondent and so it did not in any way stop him or affect how and when the final payment ought to have been made.
Issues one and two are hereby resolved against the Appellant.
ISSUE THREE
The learned counsel for the Appellant has argued that the 1st Respondent collected the sum of N5,000,000 as further deposit from the Appellant and in addition, the 1st Respondent accepted the sum of N300,000 as part payment of the agreed consideration in respect of Exhibit 4. It was then argued that the attitude of the 1st Respondent had revived the contract and his indulgence is consistent with a clear intention to waive the alleged non-performance. It was then argued that the time stipulated to pay the said balance is no longer of the essence of the contract. This argument is baseless and unfounded in law. Conduct or oral argument cannot alter the content of a written agreement. Never! It is impossible. Parties to a written agreement are not allowed to draw inference from the actions and conducts of the other party which is outside the written terms and agreement of the contract.
When the Appellant felt that the payment of the total sum of N5, 300,000 waived his non-performance and the time stipulated to pay the said balance is no longer of essence in Exhibit 4, why did he not request for a freshly written agreement to be executed between him and the 1st Respondent? Inference cannot be drawn from conducts of parties and then be held to totally cancel the terms of the written agreement.
In the case of EFIOK & ORS VS. ANI & ORS (2013) LPELR – 21400, the Court of Appeal held:
“Being documentary evidence, they are in law the hanger on which the oral evidence of the parties would be hung for assessment or evaluation of the probative value or worth it deserves.”
Oral evidence cannot alter or controvert the contents of documents rightly admitted in evidence. Section 128 of the Evidence Act provides:
“128. When a judgment of a Court or any other judicial or official proceeding, contract or any grant or other disposition or property has been reduced to the form of a document or series or documents, no evidence may be given of such judgment or proceeding or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under this Act, nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence.”
The Appellant cannot be allowed by this Court to wake up one morning and start saying that the 1st Respondent’s acceptance of the sum of N5,300,000 on the 12th day of November, 2010 cancelled and rendered of no effect the terms of agreement in Exhibit 4 that final payment must be made on or before the 30th day of April, 2011.
Apart from the inaccuracy of this argument, the Appellant never raised this line of argument at the trial Court or even in issue one in this appeal where he was practically begging this Court to uphold the content of Exhibit 4 and use it to negate the effect of Exhibit 8.
How did the Appellant’s counsel go from saying on page 8 of his brief on issue one that: “The factual and legal position is that Exhibit 1 had been substituted for or with Exhibit 4. The consideration of the breach or otherwise of Exhibit 1 becomes moot and purely academic. Any debate or argument on the issue becomes idle and futile. Any decision on such issue or submission is needless, gratuituous and an academic exercise. Thus, Exhibit 4 remains the contract the trial Court can assess and determine which of the party had assaulted” to vehemently arguing that “the acceptance of the further deposit from and the payment of the valuable consideration for the novation of the contract by the Appellant had revived Exhibit 1 on the basis of the language encapsulated in Exhibit 4. In other words Exhibit 4 is deemed to take effect from the date Exhibit 1 was executed?”
It is trite law that a party cannot be allowed to approbate and reprobate. The Appellant’s counsel tried to argue issue one by focusing on Exhibit 4, and now on issue three, he is saying that Exhibit 4 is of no effect and this Court should focus on Exhibit 1. The Appellant cannot be allowed to blow hot and cold in respect of the same issue. A party must be consistent at all times when presenting his case. It is trite law that a party cannot approbate and reprobate. See generally, the cases of NAFDAC VS. ONWUKA (2014) 4 NWLR (PT. 1398) AT 618 PARAS F – G and ABUBAKAR GCON & ORS VS. YAR’ADUA & ORS (2008) 4 NWLR (PT. 1078) PAGE 465.
In the case of UDE VS. NWARA (1993) 2 NWLR (PT. 278) AT PAGE 662, it was held per Nnaemeka Agu, JSC that:
“A man is not allowed to blow hot or cold, to affirm at one time and to deny at the other, or as it is said, to approbate or reprobate.”
With regard to the damages sought by the Appellant at the trial Court against 1st Respondent, the Appellant’s counsel has argued that the Appellant claimed damages based on the breach of the contract allegedly done by the 1st Respondent. The Appellant’s counsel did not specify the amount of damages he wanted as general damages. Counsel then submitted that he is entitled to the sum of N9,000,000, the difference between the price the property ought to have sold to him and the amount the 3rd Respondent paid for the property.
The object of an award of general damages is to compensate the Plaintiff, as far as money can do so, for the damages, loss or injury he has suffered. The guiding principle is restitution in integrum. It envisages that a party which has been damnified by the act which is called into question must be put in the position he would have been if he had not suffered the wrong which he is now being compensated for. In other words, the loss inevitably and unavoidably flows from the breach.
In the Supreme Court case of IJEBU ODE LOCAL GOVERNMENT VS. ADEDEJI BALOGUN & CO LTD (1991) LPELR – 1463 (SC), it was held per Kabiri-Whyte, JSC that:
“In cases of breach of contract, assessment of damages is calculated on the loss sustained by the injured party which loss was either in the contemplation of the contract or is an unavoidable consequence of the breach.”
The grant or otherwise of general damages is purely discretionary and such discretion must be exercised judicially and judiciously. The exercise of such discretion must be based on the evidence before the Court.
In the case giving rise to this appeal, it is the Appellant that breached the terms of Exhibit 4 which is the sale agreement between him and the 1st Respondent by failing to make the payment before the 30th day of April, 2011 as expressly agreed. It is unheard of and in fact offensive to hear the Appellant asking for damages when he is the one in breach. The trial Court was right in not granting any award.
Issue three is therefore resolved against the Appellant.
ISSUE FOUR
“Subject to contract‟ is a useful label which is usually understood to mean that the parties are still negotiating and have not yet reached a final, binding agreement. It helps parties to see at once whether there is a binding contract or whether they are still in the negotiation stage.
The counsel for the Appellant has argued that a party to a transaction marked as “subject to contract” cannot renege on the terms of the transaction and that the terms of that arrangement is itself a contract and it is binding on the parties. The Appellant cleverly cited a portion in the case of I. T. I. VS. ADEREMI (1999) 6 SCNJ 46 AT 67 to emphasize his point.
I have taken it upon myself to painstakingly read the said case of I. T. I. VS. ADEREMI (SUPRA) and I must say that I am taken aback at the sheer display of unprofessionalism by the Appellant’s counsel by misquoting and misrepresenting what the Supreme Court intended. The Supreme Court held in the said case of I. T. I. VS. ADEREMI (SUPRA), per Uwaifo, JSC thus:
“Subject to contract‟ in that sense is, in my opinion, no more than an exotic, though convenient, phrase which is employed to meet the various intricate statutory and professional requirements in English conveyancing practice. This is achieved in a common sense approach to meet the intention of the contracting parties by opting to make it a safety device, whatever agreement is reached in land sale subject to contract. The observation of Lord Greene, M.R., in Spottiswoode Ballantyne & Co. Ltd v. Doreen Appliances Ltd (1942) 2 All ER 65 at p. 66 appears to explain the effect of introducing such expression as “subject to the terms of a formal agreement to be prepared” by the solicitor. He said:
“the language used here is equivalent to the common and more concise phrase “subject to contract‟ and if anything is settled, it is that the phrase is one which makes it clear that the intention of the parties is that neither or them is to be contractually bound until a contract is signed in the usual way.”
Of course, it must be conceded that when the phrase “subject to contract” is employed in an appropriate situation, with a clear measure of intention, there can be no valid contract until formal contracts are exchanged. I think that was in essence what Lord Denning M.R. conveyed in Sherbrooke v. Dipple (1980) 41 P & CR 173 at 176 when he observed….”
As I have earlier held, the Appellant breached the terms of Exhibit 4 and thus, the contract between him and the 1st Respondent was validly terminated by Exhibit 14. Exhibit 8 is a totally separate contract between the 1st Respondent and the 3rd Respondent and it in no way prevented the Appellant from fulfilling the terms of the contract expected of him in respect of Exhibit 4. There is clearly no misapprehension of facts or misapplication of law here. The Appellant is not entitled to the award of specific performance.
In the Supreme Court case of ACHONU VS. OKUNOBI (2017) LPELR – 42102 PAGE 31 PARAS B, it was held per Rhodes-Vivour, JSC that the nature of the doctrine of specific performance states that:
“Specific performance is an equitable remedy given at the discretion of a judge when satisfied that legal or common law remedy, e.g. damages would not meet the ends of justice.”
In the case of IBEKWE VS. NWOSU (2012) N.N.S.C.L.R. (PT. 2) 136 AT 146 PARAGRAPHS C – D, the Supreme Court per Fabiyi, JSC, again held:
“Specific performance is the remedy requiring the exact performance of a contract in the specific form in which it was made or according to the precise terms agreed upon. It is the actual accomplishment of a contract by a party bound to fulfill it. The doctrine of specific performance is that where monetary damages would be an inadequate compensation for breach of an agreement, the contractor or vendor will be compelled to perform specifically what he has agreed to do. He can, for example, be ordered to execute a specific conveyance of land.”
The question that must be answered now is this: is the Appellant qualified to be entitled to the grant of an order of specific performance against the 1st Respondent? Clearly, he is not and he did not even insist to be entitled to same. The Appellant is also not entitled to the grant of damages as I have earlier determined.
On this note, issue four is therefore resolved against the Appellant.
The Appellant’s counsel had filed a reply brief, contending that the sole issue raised and argued by the 3rd Respondent was not distilled from any ground of appeal and thus, must be struck out. I agree with the Appellant’s counsel on this. I do not even see the relevance of the 3rd Respondent’s brief in this case. I hereby strike out the 3rd Respondent’s brief of argument and I shall make no comment on it.
In the circumstances, and in view of all I have said above, this appeal lacks merit and same is accordingly hereby dismissed for being a circus of contradictions. The judgment of the trial Court below is hereby affirmed.
AMINA AUDI WAMBAI, J.C.A.: I agree.
BITRUS GYARAZAMA SANGA, J.C.A.: I agree.
Appearances:
Y. A. Yussuf, Esq, with him, S. Kufai, Esq, For Appellant(s)
…For Respondent(s)
