AWUNA v. NWOSU (2022)

AWUNA v. NWOSU

(2022)LCN/16323(CA)

In the Court of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, March 04, 2022

CA/A/282/2012

Before Our Lordships:

Haruna Simon Tsammani Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Between

DANIEL AWUNA APPELANT(S)

And

PAT NWOSU RESPONDENT(S)

RATIO

THE PURPOSE OF A REPLY BRIEF

THE POSITION OF LAW ON WHEN TO RAISE PROCEDURAL IRREGULARITIES

It is the law that procedural irregularities where apparent, must be raised by a party opposed to the procedure at the earliest opportunity, which in most cases upon being served, or as in this case before the commencement of trial, and before taking any step in the matter. See Kwa vs. Kwakwa 3 WACA 176, Nagogo vs. CPC (2013) 2NWLR (pt. 1339) 448, UBN vs. Sanni (2019) ALL FWLR (pt. 983) 82 at 114. The Apex Court in its recent decision of Heritage Bank Ltd vs. Bentworth Finance Nig. Ltd (2019) ALL FWLR (pt. 997) 1 at 22 per Eko JSC, did state that:
“it is important that I make this point from the onset that a defect in procedure is not the same as defect in competence or jurisdiction. A defect in the former is regarded as a mere irregularity and can be waived. Saude Vs. Abdullahi (1989) 4 NWLR (pt. 116) 387. It is recognised and settled that an irregularity in something irregular especially an act or practice that varies from the normal conduct of an action, that is an act not done in the normal method of doing things or usage. It is ordinarily not an illegal thing to do.”

Also speaking on the issue, Ogunbiyi JSC, in Ibrahim vs. Obaje (2018) ALL FWLR (pt. 937) 168 at 1715, pointed out that:
“Where there is a technical procedural misnomer in the trial of a case at the lower Court, an appeal Court should not interfere with the decision of the trial Court unless it holds the opinion that there is a miscarriage of justice.”
In the instant case, respondents having failed to raise the procedural lapse timeously, are deemed to have waived the irregularity and cannot be heard to complain at this stage. PER BARKA, J.C.A.

WHETHER OR NOT PARTIES AND THE COURTS ARE BOUND THE TERMS OF A TEH CONTRACT SIGNED BETWEEN PARTIES

THE POSITION OF LAW ON THE REMEDY FOR SPECIFIC PERFORMANCE

The remedy for specific performance lies in the enforcement of the execution of the contract between the parties according to its terms. See BFI Group Corp vs. BPE (2012) 18 NWLR (pt. 1332) 209. It is an equitable remedy granted at the discretion of the Court, which discretion is seldom disturbed on appeal. It is usually granted where damages would be inadequate compensation. The lower Court in my view exercised his discretion judiciously and this Court will be looth to disturb same, and since the parties voluntarily entered into the agreement evidenced by Exhibit D, that agreement must be honoured as Courts of law being Courts of justice and conscience will not allow anything to disturb that agreement.Williams vs. Williams (2014) 15 NWLR (pt. 1430) 213. The lower Court was therefore right ordering the parties to specifically perform the contract entered willingly, as directed by the lower Court and I so hold. PER BARKA, J.C.A.

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): The instant appeal arose from the judgment of the High Court of the Federal Capital Territory, Abuja, sitting as Court No. 8, Apo District and manned by Honourable Justice U. A. Inyang in suit with No. FCT/HC/CV/219/07, delivered on the 30th of June, 2011. By the said decision, judgment was entered for the plaintiff/respondent.

The gist of the action before the lower Court as can be gleaned from the records, shows that the action generating the instant appeal was commenced on the 31st of October, 2007, when respondent approached the lower Court vide a writ of summons, praying for the following reliefs:
i. A declaration that the plaintiff is a lawful purchaser from the defendant of the premises known as 4-bedroom semi-detached duplex lying and situate at No. 44 A (formerly 20A) Khartoum Street, Zone 5, Wuse Abuja.
ii. A declaration that the renting out of the said premises known as 4-bedroom semi detached duplex lying and situate at No. 44A (formerly 20A) Khartoum Street, Zone 5, Wuse, Abuja by the defendant to tenants without the consent of the plaintiff in writing is a fundamental breach of the memorandum of understanding dated the 28th of November, 2005 and executed by both the plaintiff and defendant.
iii. An order of specific performance by the defendant of the agreements contained in the memorandum of understanding dated 28th November, 2005 i.e. to say;
a. The execution of both power of attorney and deed of assignment over plot 44A (formerly 20A) Khartoum Street) Zone 5, Wuse, Abuja by the defendant in favor of the plaintiff.
b. Acceptance of his balance of the sum of N5,400,000.00 (inclusive of the sum of N3,400,000.00 refunded back without the consent of the plaintiff.
c. The conveyance of the Certificate of Occupancy in respect of plot 44A (formerly 20A) Khartoum Street, Zone 5, Wuse Abuja to the plaintiff
iv. An order of perpetual injunction restraining the defendant from exercising any act of ownership over the said premises either by way of collection of rents from tenants, selling, further leasing or otherwise creating any encumbrance on the premises subject matter of this suit.
v. General damages of N5,000,000.00
vi. N750,000.00 being the cost of the prosecution of this case.
The defendant, now appellant with the leave of Court on the 21st of July, 2010, filed the defendant’s statement of defence and by paragraph 34 thereof, prayed the Court to dismiss the entire suit as lacking in merit. Furthermore, defendant by way of a counter-claim, prayed for the following reliefs:
i. Defendant/counter-claimant claims N5,000,000.00 (Five Million Naira) only for the breach of contract i.e. the term in the memorandum of understanding.
ii. The defendant’s counter-claimant claims against the plaintiff the sum of N2, 000, 000.00 (Two Million Naira) only for defamation of character for petitioning his employer the Inspector General of Police and slandering his name.
iii. The defendant’s counter-claimant claims N500,000.00 (Five hundred thousand Naira) only for the cost of this action.

Issues having been joined, parties proceeded to adduce evidence in support of their respective positions at the end of which, addresses were ordered, filed and adopted, setting the stage for the vexed judgment delivered on the 10th day of June, 2011.

The case for the appellants before the lower Court as narrated by the appellant in the brief settled by Eyare J. Ogar, is that, appellant a superintendent of police who had been in occupation of a 4 bedroom semi-detached duplex situate at No: 44A Khartoum street, Wuse Zone 5 Abuja allocated to him, and to which he had been in physical possession up to a certain period was offered the choice of buying the house from the Federal Government under its monetizing policy programme; and being that appellant had no money to pay for the house at the material time, negotiated with the respondent, to fulfil his intention of buying the house. It is on record that the negotiation followed series of meetings between the parties, whereby it was finally agreed that respondent pay appellant the sum of N12, 500, 000.00 as purchase price of the property, and to that end entered into a memorandum of understanding, the relevant terms of which are that:
i. That the financier shall release and/or advance the sum of N7,000, 000.00 (Seven Million Naira) only into the said account with bank draft No; 00606450 on 4th November, 2005 belonging to Diamond Bank Plc.
ii. That in furtherance of this, the financier, has lodged the sum of N7,000,000.00 (Seven Million Naira) only into the said account with bank draft No: 00606450 on 4th November 2005 belonging to Diamond Bank Plc.
iii. That the financier shall pay the balance in accordance with the terms and conditions as stipulated in the letter of offer granted the beneficiary.
iv. That on receipt of the Certificate of Occupancy in respect of the property, the beneficiary shall cause the legal title of the said property to be conveyed to the financier.
v. That the legal document to wit power of attorney and deed of assignment shall be prepared for a proper assignment of the legal title of the said property to the financier.
vi. That the beneficiary shall seize to exercise the right of occupation of the property within a period, not exceeding 4 months from the date of the execution of this legal document.
vii. That by this memorandum of understanding, the financier shall also grant to the beneficiary the sum of N5,500, 000.00 (Five million, five hundred thousand
naira) only which sum shall form an addition to the total cost for the outright purchase of the said property by the financier.
viii. The said amount in clause B shall be granted the beneficiary on installment basis, consequent upon which the sum of N1,300,000.00 (One million, three hundred thousand naira) only has been so granted by the financier through a bank draft No: 00606447 belonging to Diamond bank Plc (the receipt whereof the beneficiary acknowledges).
ix. That on completion of the payment of the full value of the property, the financier or his agents shall be allowed having duly sought permission in advance from the beneficiary to enter upon the property for the purpose of renovation.
x. That on no account shall the beneficiary assign, underlet, sublet or part with the possession of the sad property or any part thereof without the consent of the financier or his agent in writing.

Premised on the above, appellant stated that respondent made payments to the official body that sold the house on behalf of the federal government, and also paid appellant a total of N3,500,000.00 out of the agreed sum of N5,500,000.00, leaving standing balance of two million naira only unpaid. Appellant goes on to state that it was also part of the terms of their agreement, requiring appellant to move out of possession after full payment of the price agreed upon, but that respondent without paying the balance of two million naira indicated interest going into the property for renovation, which appellant resisted. That owing to the disagreement between the parties on the issue of taking over the property, respondent caused a petition to issue against him to his place of work, based on which appellant was suspended from work indefinitely. That appellant refunded the sum of N3,500,000.00 to the respondent on demand, and also asked for time to refund the balance of seven million, but to his surprise, respondent instituted an action before the lower Court demanding for an order of specific performance amongst other reliefs.

The appeal having been entered to this Court as required by the rules, appellant filed a brief of argument on the 18th of October, 2019 but deemed properly filed on the 20th of October, 2020. Appellant also filed a reply brief on the 7th of September, 2021, and on the day slated for hearing being the 3rd of February, 2022, the appellant identified the processes filed, adopted the same and urged the Court to allow the appeal. In opposing the appeal, respondents filed a brief of argument on the 13th of September, 2021 also deemed properly filed on the 29th of September, 2021. On the 3rd day of February, 2022, the learned counsel for the respondent identified the process filed, adopted the same and urged the Court to dismiss the appeal.

In the brief settled by Eyare J. Ogar for the appellant, the following issues were identified for the resolution of the appeal:
i. Whether the learned trial Judge was right in law when he held that there was a valid contract of sale of the four (4) bedroom complex located at No. 44A Khartoum Street, Wuse Zone 5, Abuja between the parties at the time the respondent filed the action in the Court below.
ii. Whether the learned trial Judge considered and gave the appropriate weight, meaning and or interpretation of the evidence adduced before it by the parties when he entered judgment in favour of the respondent against the appellant.
iii. Whether the learned trial Judge erred in law when he held that the appellant and not the respondent was in breach of the contract he entered with the respondent for sale of semi-detached duplex, at No. 44A Khartoum Street, Zone 5, Wuse, FCT, Abuja as well as award of N2,500,000.00 (Two million, five hundred thousand naira) as general damages, and N250,000.00 (Two hundred and fifty thousand naira) as cost of action.
iv. Whether the learned trial Judge erred in law when he held that:
(a) The respondent should return the sum of N3,500,000.00 (Three Million, five hundred thousand naira) only, he earlier collected and N2,000,000.00 (Two million naira) only that was outstanding to the appellant.
(b) The appellant to specifically perform the sale of the 4 bedroom semi-detached duplex by executing the title document (deed of assignment and power of attorney) in favor of the respondent.
(c) Hand over the certificate of occupancy of the property to the respondent.

Mr. Ifeanyi M. Nrialike, the learned counsel for the respondent at page 8 – 9 of the brief settled by him, adopted all the issues formulated by the learned appellant’s counsel, in the determination of the appeal.

Moving the appeal with respect to issue one, learned counsel submits that as at the time respondents filed the suit before the lower Court, there was no valid contract for the sale of the semi-detached duplex at No. 44A Khartoum Street, Wuse Zone 5, FCT-Abuja between the respondent and the appellant. He commenced his argument by stating that parties had proved their case before the lower Court to the effect that they had earlier entered into a contract for the sale of a house, (the disputed property) at the total cost of N12,500,000.00, but that the respondent being dissatisfied with the refusal by appellant to allow him access to the house, discontinued the contract and demanded for the refund of his money, which appellant granted and commenced the payment of the respondents’ money. On what constitutes a valid contract, counsel referred to the agreement entered between the parties, contending that as at the time respondent filed his action, the agreement entered between the parties had been repudiated, and what was left was the refund of the money already paid to appellant by the respondent.

With respect to issue two, questioning the proper weight, meaning and or interpretation to the evidence adduced, before entering judgment to the respondent, learned counsel contended that the lower Court failed to consider the evidence before it in respect of the matter and to allocate the appropriate weight and or interpretation to the evidence tendered and admitted. The case of Anzaku vs. Governor Nassarawa State & Ors (2006) ALL FWLR (pt. 303) 305, was cited and relied upon in that regard. He argued that the intention of the parties was expressed in Exhibit D, executed on the 28th of November, 2005, but that the trial judge failed to give the appropriate weight and or interpretation to the contents of the document. He referred to paragraph 8 which was to give effect to paragraph 7, to the effect that appellant relinquish the house for renovation purposes only after full payment of the sum agreed upon, and that appellant vacate at the expiration of four months thereafter. He urged the Court to read the entire paragraphs of Exhibit D, and to hold that appellant’s contention that all he was required to pay was the seven million naira, since the payment of the sums of seven million naira paid by the respondent in respect of the disputed property, did not change the status of the parties. He contended that as at the time of the filing of the action, appellant made part payment and not the full payment of the property, and complained that the trial Court failed to give Exhibits J and D5 its proper meaning, also contending that the appropriate interpretation which was open to the lower Court would have been that respondent did not only voluntarily approve the refund made to the appellant as demanded for and received same, since it was illogical for the appellant to have received the sums of three million, five hundred thousand Naira into its account without his consent. With regard to Exhibit C, the petition written to his employer, wherein appellant demanded that respondent be compelled to return his money earlier paid, it was the contention of the learned counsel to the appellant that that transmutes to the fact that the essence of the demand for refund was to finally discharge the parties of their obligation created under the contract agreement.

On the third issue canvassed by the appellant, it was argued that the lower Court was in gross error holding that it was the appellant that was in breach of the contract agreement, since a party can be said to be in breach only where the said party neglects or refuses to perform the obligation created under the contract or the law. He still referred to the term agreed upon that on the completion of the payment of the full value of the property, the respondent shall allow access in advance to the appellant to enter the property, and contended that the refusal by the appellant to allow respondent entry into the property does not amount to a breach by him, but rather it was the respondent who was in breach, and therefore the award of damages entered against the appellant unfounded. He argued still that instead of blaming the appellant and awarding damages against him, it was the appellant that got suspended from his work and deserving of damages to his favour, and the lower Court wrong to have held otherwise. Lastly, on the ruling of the lower Court, asking appellant to grant ownership of the property to the respondent, learned counsel argued that the lower Court erred in commanding appellant to specifically perform the contract which was repudiated by the respondent, and also queried the award of damages as being unnecessary. In conclusion, appellant urged the Court to allow the appeal and to hold that appellant was entitled to damages as per his counter-claim. Responding to the submissions of the learned counsel for the appellant, Mr. Nrialike, the learned counsel for the respondent adopted the four issues formulated by the appellant’s counsel and proceeded to argue issues 1 and 2 together.

Counsel commenced his address by questioning whether defendant in fact did file any process in his defence before the lower Court in this case, whether there was a valid contract between the parties, and finally whether the lower Court adequately considered the evidence before it before entering judgment for the respondent.

With respect to the first question posed, it was contended that appellant failed to file any valid statement of defence and in the absence of which, appellant was deemed to have waived his right to defend the case. He also contended that the written statement on oath upon which the appellant hinged his defence, having not been duly sworn to before a commissioner of oaths transmutes to the fact that the defence and counter-claim of the appellant must fail and the respondent’s case unchallenged before the lower Court. On whether there was a valid contract between the parties and whether the trial Court gave due consideration to the evidence of the appellant, counsel referred to the finding of the lower Court in the judgment at pages 275 – 277, submitting that the Court captured the genuine intentions of the parties, and cited the case of Bilante International Ltd vs. NDIC (2011) LPELR on when a contract can be said to exist between parties. He alluded to the Memorandum of Understanding entered into between the parties, contending that respondent was fulfilling his own obligation having made full payment to government for the purchase of the property on behalf of the appellant and a further three million and five hundred thousand naira to the appellant as additional payment. In urging the Court to resolve issues one and two against the appellant, learned counsel posited that contrary to the assertion of the appellant, a valid contract existed between the parties and for which the Court had the duty to enforce.

Also submitting on issues 3 and 4 at the same time, learned counsel adopted his earlier argument made with respect to issues 1 and 2, and urged the Court to resolve the two issues against the appellant.

By way of a reply on points of law, a 13 page document titled reply to the Respondent brief of argument, was filed on the 7th of September, 2021. A careful perusal of the document by me bears out as the title is meant to show, that the reply brief is actually a further re-argument of the appeal.

To that end, let me reiterate the fact that it has been stated over and over again, that a reply brief is meant to address new issues arising from the respondent’s brief, and not meant to canvass new issues and or to re-argue the appeal all over, even in a summary form. See Kanu vs. AG Imo State (2014) 6 NWLR (pt. 1402) 1, Okpala vs. Ibeme (1989) NWLR (pt. 102) 208. Where a reply brief, like in the instant case amounts to a repetition of what has already been submitted upon by the appellant, the Court will have no business giving it any consideration, see Akande vs. Adisa (2012) 15 NWLR (pt.1323) 538. I believe such is the fate of the present reply brief, and it is accordingly discountenanced by me.

The facts generating the instant appeal to me appears straight forward, parties having agreed, and therefore at ad idem, to the effect that appellant, a high ranking police officer of the rank of a Superintendent in the Nigerian Police Force, who had been in occupation of the property in question for a period of about seven years, and having been given an offer letter of first refusal in respect of the purchase of a 4 bedroom semi-detached bungalow at block 44A Khartoum street Wuse Zone 5 Abuja, could not due to his poor financial standing, satisfy the financial terms stipulated therein. That one of the stipulations in the offer letter was that a down payment of 10% is made, and owing to the fact that the house had been valued at N7,000,000.00, a payment of N700,000.00 was immediately required. When appellant could not meet up with this demand, and in order not to lose his right of first refusal, respondent who was interested in purchasing the said property, was introduced to him, whereby an agreement was reached between them captured in a memorandum of understanding, Exhibit D, wherefore it was agreed that respondent pay to the Federal Government the sums of Seven million Naira being the cost price of the house, and a further five million, five hundred thousand Naira to the appellant in full satisfaction for the sale of the house to him. It is in evidence that respondent duly paid the said sum of seven million to the Federal Government for the purchase of the house, and thereafter three million, five hundred thousand naira to appellant being part payment of the agreed sum of five million and five hundred thousand naira respectively. Unfortunately, a disagreement appears to have set in when the respondent demanded to be let into the property for renovation after the payment of ten million five hundred thousand naira only, leaving a balance of two million naira unpaid, which appellant resisted, insisting that his balance of two million naira ought to have been paid first as stated in the memorandum of understanding. The disagreement seems to have dragged on, and this state of events led respondent to petition the employers of the appellant, the Nigerian Police Force to intervene in the matter, and when appellant still remained adamant refusing to yield to the respondent’s demand, i.e, access of the house to the respondent, now approached the lower Court, seeking for an order of specific performance of the contract, which the lower Court obliged.

Apparently, appellant does not dispute the fact that an agreement existed between him and the respondent for the sale of the disputed property, but complains that as at the time respondent filed his case before the lower Court, the offer to sell, acceptance to buy and intention to enter into a legal relationship had been repudiated by the parties, and what was left was the refund of the balance of the part paid consideration; in other words that there was no valid contract of sale between the two parties as at the time of trial.

For him (appellant), had the trial Court properly weighed the pieces of evidence adduced before it, most particularly Exhibit D, it would have arrived at the inevitable conclusion that there was no longer any contract of sale between them. The lower Court gave consideration to the issue canvassed, as can be found at pages 275 – 277 of the record wherein it disagreed with the appellant and held that:
“…The above explanation is necessary so that no one is left in doubt whatsoever as to whether there was a contractual relationship between the parties in this case or not. And I strongly and unequivocally hold that there was a valid contract agreement evidenced by Exhibit D between the parties in this case for the sale of the property in dispute by the defendant to the plaintiff, notwithstanding whether or not there was any outstanding amount from the total purchase price of N12.5 million owed by the plaintiff to the defendant before the defendant made a u-turn after all that the plaintiff did and went through in securing the property from the ad hoc committee for the sale of FGN houses to their occupants in 2005.”

My Lords permit me to deviate slightly, and to address the issue raised by the learned respondent’s counsel wherein it was contended that appellant had no competent statement of defence before the lower Court. The learned respondent’s counsel had argued that appellant had filed an application before the lower Court dated the 11th of January, 2008 seeking for extension of time within which to file the statement of defence and counter-claim. That even though the Court granted the said application, owing to the fact that no clean copy was filed along with the motion papers, the statement of defence could not be deemed and that it was only on the 21/7/2010, that appellant filed the statement of defence and counter-claim at the point of adoption of final addresses, and after parties had concluded trial. Further still, counsel complained on the signature alleged to be that of the commissioner of oaths, which appeared on the process, concluding that appellant by implication did not file any statement of defence and counter-claim.

I now ask, was the issue canvassed before the lower Court and a decision made there on, since grounds of appeal from which issues emanate must arise from the judgment. It is true as its evident from the record that appellant sought for and was granted extension of time within which to file the statement of defence and counter-claim, consequent upon which on the 26th day of February, 2008, P.O. Okolo of counsel for the plaintiff, did inform the lower Court before the commencement of trial, that pleadings had been filed and exchanged and the case ripe for hearing. Indeed the learned counsel for the respondent herein, based on the statement of defence being complained about, filed a response thereto, and the lower Court, while recognising the fact that appellant’s statement of defence and counter-claim was filed belatedly at the stage of judgment nevertheless considered the said statement of defence and counter-claim.

It is the law that procedural irregularities where apparent, must be raised by a party opposed to the procedure at the earliest opportunity, which in most cases upon being served, or as in this case before the commencement of trial, and before taking any step in the matter. See Kwa vs. Kwakwa 3 WACA 176, Nagogo vs. CPC (2013) 2NWLR (pt. 1339) 448, UBN vs. Sanni (2019) ALL FWLR (pt. 983) 82 at 114. The Apex Court in its recent decision of Heritage Bank Ltd vs. Bentworth Finance Nig. Ltd (2019) ALL FWLR (pt. 997) 1 at 22 per Eko JSC, did state that:
“it is important that I make this point from the onset that a defect in procedure is not the same as defect in competence or jurisdiction. A defect in the former is regarded as a mere irregularity and can be waived. Saude Vs. Abdullahi (1989) 4 NWLR (pt. 116) 387. It is recognised and settled that an irregularity in something irregular especially an act or practice that varies from the normal conduct of an action, that is an act not done in the normal method of doing things or usage. It is ordinarily not an illegal thing to do.”

Ditto the contention with regards to the signature of the commissioner of oaths.

I now shall now return to the consideration of the merit of the appeal, and accordingly agree with the trite position of the law, as contended, that for there to be a binding contract, there must be an offer, an acceptance and a consideration. This much is elementary. It follows therefrom that with respect to the issue under consideration, a contract of sale would exist where there is a final and complete agreement of the parties on essential terms of the contract: namely the parties to the contract, the property to be sold, the consideration for the sale and the nature of the interest to be granted and once there is agreement on these essential terms, a contract of sale of property would have been established. See Bilante International Ltd vs. NDIC (2011) 15NWLR (pt. 1270) 407, Best Nig. Ltd vs. B.H Nig. Ltd (2011) 5 NWLR (pt. 1239) 95, AG Rivers State vs. AG Akwa Ibom State (2011) 8NWLR (pt. 1248) 31.

It is equally an established position of the law that the terms of agreement entered into by the parties are sacrosanct as parties enjoy the freedom of contracting, so long as the terms of the contract are lawful, and the Court on that premise devoid of the right to interfere by making contract to the parties. Moreover, parties are bound by the terms of the contract entered, Uwah vs. Akpabio (2014) 17 WRN 61 at 78, but where a dispute arises with regard to the interpretation of the terms; the Court’s duty is limited to construing the surrounding circumstances including written and or oral statements made so as to discover the intention of the parties. See BFI Group Corp. vs. BPE (2012) 18 NWLR (pt. 1332) 209, Omega Bank Nig. Plc vs. OBC Ltd (2005) 8 NWLR (pt. 926) 547. Reverting to my earlier finding that parties do not dispute entering the contract for the sale of the disputed property, and thereby committing the terms of the contract to writing evidenced by Exhibit D, and further that the area of contention arose, when Appellant held strongly to the view that as at the time the respondent approached the lower Court seeking for an order for specific performance of the contract, the said contract of sale between the parties embodied in Exhibit D had been repudiated by the parties. This contention according to the appellant, is predicated on the refusal of the respondent to perfect the terms of the contract i.e. the none payment of the full price of N12,500,000 agreed upon by the parties as full payment for the property, and further upon the demand made by the respondents for a refund of the sums paid in the execution of the contract, even though respondent denied seeking for any refund.

The lower Court apparently disagreed with the appellants, in that regard, and held that where the surrounding circumstances and facts of the case from the evidence adduced by the Pw1, coupled with Exhibits A – D and E- J, is looked at, the contention by the appellant that the contract stands repudiated is unavailing to the appellant, but that on the contrary it can rightly be said that there was a contract for the sale and purchase of the property in dispute as at the time respondent filed the action before it. Specifically, the lower Court stated that:
“Taking together all the exhibits, particularly Exhibit D, facts and circumstance of this case, it is the view of this Court and I so hold that there was a contractual relationship between the plaintiff and the defendant which crystallised into the purchase of the property in dispute by the plaintiff from the defendant. This is after the plaintiff had paid the purchase price of seven million naira on behalf of the defendant to the ad hoc committee on the sale of FGN Houses in the FCT Abuja based on the Memorandum of Understanding entered into by the parties in this case.”

A solemn consideration of what prompted the contract entered into by the parties becomes necessary at this point. My Lords, permit me to still rehash the sequence of events, even at the risk of being repetitive. It is that whereas the appellant, who was in occupation of the property and thereby offered the house for sale by the Federal Government Agency charged with the sale of Government Houses, with the occupiers given the first option, and since appellant, a core civil servant had no money to pay for the said property at the material time, and while the Respondent on the other hand, is desirous of owning the property, which intention appellant acknowledged and agreed to, paid the sums of Seven million Naira to the Federal Government body charged with the sale of the property on that understanding that appellant would now transfer title to the said property to him, for which a further sum of five million and five hundred thousand naira would be given to appellant, and it is in furtherance of that mutual agreement that respondent paid a total of ten million five hundred thousand naira to the government agency and the appellant respectively. This is the basis upon which the contract was entered. With the misunderstanding arising from the transaction, the Court must look into the memorandum of understanding in order to understand the intention of the parties.

The apex Court faced with a situation which is not all together dissimilar to the case at hand, held in Yaro vs. Arewa Construction Ltd (2008) ALL FWLR (pt. 400) 603 (SC), clarifying the position thus:
“A contract is formed once there is an offer by the offeror to the offeree which is accepted by the offeree backed by consideration. At that point in time, the parties to the contract are said to be ad idem or in agreement, and that agreement or contract is binding on both parties and as such it is enforceable in action.”
See also Hassan vs. Obodoeze & Ors (unreported) suit no. CA/J/172/2006, Abdulrahman vs. Thomas (2019) 12 NWLR (pt. 1685) 107 at 124.

The Appellant’s counsel had contended that a Court of law can only give effect or enforce the intention of parties to a contract that is valid and existing as at the time either of the parties approaches the Court for redress, and to that extent cited the cases of Adetoro vs. UBN Plc (2007) ALL FWLR (pt. 396) 5900, Bajimi vs. Adedeji (2008) NWLR (pt. 1075) 40, Osun State Govt vs. Dankani Niger Ltd (2007) 148 LCRN 1311 at 1313. This indeed represents the state of law. The solid question which remains to be answered remains whether the contract entered and reduced into writing in the nature of Exhibit D, was indeed repudiated by the respondent before the initiation of the case before the lower Court as appellant’s counsel would want the Court to believe, and therefore to that extent, no valid contract existed between the parties as at the time of the filing of the action before the lower Court. It is apparent that much as that argument seems to have been forcefully made, the lower Court did not seem to have been swayed by that argument therein.

For me, a close scrutiny of Exhibit D, the memorandum of understanding, given its literal meaning, would show that parties did agree that there would be the sale of the property in dispute now owned by the plaintiff, by virtue of the purchase price paid by the respondent to the appellant. All other stipulations in the memorandum of understanding are geared towards the achievement of that end. The thinking of the lower Court does not seem to be different, having viewed the entire scenario, and leveraging on the case of Nwobi vs. Anukam (2001) 14WRN 38, of the view that the duty of a Court of law is to give effect to the agreement of the contracting parties, and in doing so, the Court is guided by what the parties wrote or said and what they did as well as the conduct of the parties which they exhibited in pursuit of the said contract. I totally agree with the trial judge. Exhibit D to me is self-explanatory. The intention of the parties therein is quite clear. If the appellant wants this Court to hold that the contract agreement was breached and therefore not in existence as at the time respondent approached the lower Court, it will be a wonder how he hopes any Court will believe that. I say so because the mere fact asserted by the appellant, which the respondent denied anyway, that respondent demanded for the payment of the money paid to him in pursuance of the contractual arrangement between them, ought to be taken to mean that respondent opted out of the contract, and therefore entitled to the refund of the money spent, runs against the settled position of the law, which is, that the onus of proof of a fact in issue lies on that person who will lose if that fact is not proved. See Maersk vs. Winline Nig. Ltd (2015) ALL FWLR (pt. 808) 672 at 677, there must be evidence convincing the lower Court to believe that respondent actually opted out of the contract agreement, failing which that assertion must fail. Not surprisingly therefore, the lower Court took evidence in the consideration of the issue, considered the totality of oral and documentary evidence placed before it, and at page 277 of the record concluded that he had no doubt whatsoever that prior to the institution of the action before him, there still existed a valid and enforceable contract evidenced by Exhibit D, existing between the parties with all the conditions precedent embodied in the said contract. I agree with the lower Court.

The evidence of the respondent can be seen at pages 152 – 159 of the record of proceedings, while that of the appellant who also gave evidence as Dw1, was recorded at pages 159 – 170. Two facts stand out from the pieces of evidence. Firstly, respondent paid the sum of N7,000,000.00 for the disputed property in the name of the appellant as agreed in their written agreement. It is a fact also that after paying N10,500,000.00 to the appellant, respondent was to pay a further two million naira in furtherance of the agreement, but before then demanded that he be allowed access to the property to allow him renovate the same, and having been denied access to the said property, and series of efforts at settlement which invariably failed, respondent petitioned the Inspector General of Police seeking for his intervention for amongst others the refund of his money. This Pw3 stated was because appellant said the police wanted to make the property a guest house. The reaction of the Police boss on this is the suspension from service of the appellant on the grounds of being dishonest. Yet again, appellant made two payments to the respondent via his bank, which respondent denied authorising.

My Lords, it is the law as earlier stated, that a contract of sale exists where there is a final and complete agreement of the parties on essential terms of the contract; the parties to the contract, the property to be sold, the consideration for the sale and the nature of the interest to be granted. See Bilante International Ltd vs. NDIC (supra). The law reiterates the fact that it is the writing in the document that constitutes a guide to the intention of the parties.

See Julius Berger (Nig) Plc vs. TRCB Ltd (2019) 5NWLR (pt.1665) 219 at 256 and the wishes of the parties in the document takes centre stage. In any case, parties by their paragraph 13 of Exhibit D, agreed that no party to the agreement shall be entitled to rescind same after commencement of performance by the other, and since respondent had substantially complied with his own side of the agreement, it does not lie with the appellant contending that the respondent’s conduct amounted to a repudiation of the contract.

The existence of a contract or agreement is a question of fact, and the rescission of the contract or agreement must also emanate from facts established. In Abdurahman vs. Thomas (2019) 12 NWLR (pt. 1685) 107 at 124 – 125, Eko JSC, threw light on the issue, having stated that the intention of the parties in rescinding from a contract entered will be gathered from an examination of the terms of the subsequent contract, and that a subsequent agreement must exist in order to presume the alleged rescission.

By the way, Pw1, who happened to be at the centre of it all gave a narration on how appellant immediately after the last payment of N3,500,000.00 started showing some attitudinal changes, which culminated to the refusal to allow the respondent access to the property, and further that appellant had embarked on the renovation of the property by himself and erecting additional structures, renting out same to tenants contrary to the terms set out in the memorandum of understanding. In other words, the sanctity of the contract took a different dimension at that stage, and the lower Court was right to have concluded that as at the time respondent rushed to Court, a contract agreement though existing between the parties, appellant had set out to breach the said contract entered, though holding on to the flimsy cover that respondent had repudiated the contract between them. See Citi Bank (Nig) Ltd vs. Ikediashi (2020) 13 NWLR (pt. 1741) 337. Where a party to a contract without lawful excuse fails, neglects or refuses to perform an obligation which he undertook in the contract or incapacitates himself from performing the agreement entered, that by itself is a breach of the contract. See Best Nigeria Ltd vs. Blackwood Hodge (Nig) Ltd & Ors (2011) 5 NWLR (pt. 1239) 95 per Fabiyi JSC, Adedeji vs. Obajimi (2019) ALL FWLR (pt. 1013) 926 at 959.

It is unfortunate that the lower Court was unnecessarily accused of sentimentality for quoting from the Holy Scriptures. I say so because it is part of the law that the Court of justice is the keeper of conscience and will in that role prevent any person from acting against the dictates of conscience. See Oniah vs. Onyia (1989) 1 NWLR (pt. 99) 514, Tonimas (Nig) Ltd vs. Chigbu (2020) 6NWLR (pt.1720) 237 at 251. The learned counsel for the respondent proposed a view, that appellant who now boast of refunding the money paid by the respondent, to the extent of refusing to obey the directive of the Inspector-General of Police, which disobedience earned him suspension from duty, must have gotten a higher and better deal. The proposition cannot be ruled out. But is it conscionable for the appellant having acquired the property through the intervention of the respondent to bolt away from the promise undertaken by him in the circumstance? I do not think so. Having carefully studied the records, the submission of learned counsel on the issues and the resolution of same by the lower Court, I find myself in total agreement with the findings and conclusion reached with respect to the two issues. Learned counsel for the respondent appropriately referred the Court to the cases of Doherty vs. Ighodaro (1997) 11 NWLR (pt. 530) 696, which held that it is despicable for a person who had benefited from an agreement such as the appellant herein by making the respondent pay, (in this case) seven million naira which entitled him to acquire the disputed property and to then turn round and refuse to perform his own side of the bargain, and just like in Dantata vs. Dantata (2002) 4 NWLR (pt. 756) 144, appellant cannot be allowed having benefited to refuse to give consideration to the respondent by passing title of the property to the him. Ogunwumiju JCA, as he then was, in H.F.Ind. (Nig) Ltd vs. Chellarams Plc (2018) ALL FWLR (pt. 918) 170 at 187, belaboured the point that a person cannot be allowed to benefit from his own wrong, and in such a circumstance, the Court has a duty to prevent the injustice occasioned therefrom.

The contention by the appellant counsel that as at the time respondent came to Court, the contract had been repudiated and further, that the breach in respect of the contract was committed by the respondent is porous, and cannot be sustained, the lower Court in my view rightly acted in tune with the law and arrived at a correct decision which cannot be faulted by me. Issues 1 and 2 are hereby resolved against the appellant.

Issues three and four also considered together seeks to question the holding of the lower Court to the effect that appellant was in breach of the contract agreement and the award of general damages, as well as the order for the performance of the contract agreement not sustainable. In the treatment of the two earlier issues before now, I did agree with the finding by the lower Court that appellant was in fact the one in breach of the terms of the contract, and even though Appellant has made a serious issue on the respondents not paying the balance of two million naira, contending that the failure to pay the full purchase value of the property means that he had not bought the property in dispute; further complaining that by Exhibits J, which evidences payment of the sums of three million and four hundred thousand to the respondent, and Exhibit D5, also showing that a further one hundred thousand was paid into the respondents account translates to the fact that after respondent could not pay the full purchase price for the property, requested for the refund of his money. In other words, that the refund of the respondent’s money as aforesaid terminated the contract. This submission by the appellant still looks not only porous, but smacks of taking the Court for a ride. Indeed appellant had before now stated in his deposition that of the remaining two million naira, respondent wanted to give him only five hundred naira, while the balance of the money was to be shared out to other parties. The respondent however in refuttal, stated that he was ready not only to pay the agency money, but also to add money to the appellant should the need arise. And as indicated in the record, the payment of the sums of money into the respondent’s account was made on the 24th day of January, 2007, whereas the petition against him to his superiors was on the 12th day of June, 2007, a clear 12 days from when respondent approached his superiors urging them to intervene. No wonder, his superiors also refused to side with him, accusing him of dishonestly breaching the memorandum of understanding entered into with the respondent. The police after exhausting their efforts at intervening between the parties saw the conduct of their officer as an affront, a discreditable conduct prejudicial to the discipline and unbecoming of a senior police officer, maintaining that his actions amounted to a fraudulent conduct, thus his suspension from duty as such police officer. Even then, and unfortunately the law does not seem to favour the appellant’s contention that full payment was not made in actualizing the sale agreement in view of the holding in the recent case of Rano vs. Rano (2021) 12 NWLR (pt. 1790) 292, wherein it was held that:
“Where a part payment is made, it shows that a contract for the purchase of the subject matter has been concluded and final, leaving the payment of the balance, in this case after the part payment of N7,200,000.00 to the respondent, the appellant acquired equitable interest over the property that is as good as a legal estate. At that point, the respondent had nothing of the property.”
Clearly therefore, when the appellant and respondent agreed that the price of the property being seven million naira be paid by the respondent on the understanding that for a further five million, five hundred naira, the property is sold to the respondent, and the said respondent having paid the stated seven million naira vesting the property on the appellant, and having collected part payment thereto, the sale contract is complete and what remains is the balance which accrues to the appellant. This is predicated upon the principle that specific performance is rooted in part performance of a subsisting contract. See Olowu vs. BS Ltd (2010) 2 NWLR (pt. 1179) 310 at 215.

The argument to the effect that it is only upon the completion of the payment of the full value of the property that respondent will be allowed access to the property; can only mean the time for the transfer of the property to the respondent as against the agreement for the sale of same. In any case, there is evidence that appellant refused to accept the outstanding balance, insisting that the contract had been repudiated by the respondent. I fail to see with the appellant.

Finally, appellant complained about the orders made by the lower Court pertaining to the award of damages, as well as the order for specific performance.

The remedy for specific performance lies in the enforcement of the execution of the contract between the parties according to its terms. See BFI Group Corp vs. BPE (2012) 18 NWLR (pt. 1332) 209. It is an equitable remedy granted at the discretion of the Court, which discretion is seldom disturbed on appeal. It is usually granted where damages would be inadequate compensation. The lower Court in my view exercised his discretion judiciously and this Court will be looth to disturb same, and since the parties voluntarily entered into the agreement evidenced by Exhibit D, that agreement must be honoured as Courts of law being Courts of justice and conscience will not allow anything to disturb that agreement. Williams vs. Williams (2014) 15 NWLR (pt. 1430) 213. The lower Court was therefore right ordering the parties to specifically perform the contract entered willingly, as directed by the lower Court and I so hold.

Having also found that the respondent was in breach of the terms of the contract entered, having tried to frustrate the same, a claim for damages arises where there is breach of a legal duty to a claimant in this case the respondent.

The quantum thereof remains within the discretion of the trial Court guided by all the circumstance of the case and a judicious estimation of the loss occasioned to the victim, in this case, the respondent, where a breach has been established. See Ahmed vs. CBN (2013) 2NWLR (pt. 1339) 524.
In awarding the sum of N2, 500, 000.00 as damages against the appellant, the lower Court was guided by the decisions of Osuji & Ors vs. Isiocha (1989) 3 NWLR (pt. 111) 623, and International (Nig) Bank Ltd vs. G. Citex Industries Ltd (2000) FWLR (pt. 4) 678. I agree with the lower Court that the two cases still represent the state of the law with regards to the award of general damages, and that the Court exercised its discretion judiciously owing to the circumstance of the case, and this Court cannot in the circumstance interfere with the award and I so hold.

Having resolved all the issues against the appellant, the inevitable conclusion is that this appeal is lacking in merit and accordingly fails and thereby dismissed by me. In the event, the judgment of Justice A.U. Inyang of the High Court of Justice, Federal Capital Territory Abuja, in suit with No. FCT/HC/CV/219/2007, between Mr. Daniel Awuna and Mr. Pat Nwosu, delivered on the day of June, 2011 is hereby affirmed by me. I also award costs of N100,000.00, in favour of the respondent.

HARUNA SIMON TSAMMANI, J.C.A.: I read in advance, the draft of the judgment delivered by my learned brother, Hamma Akawu Barka, JCA.

The oral and documentary evidence before the Court, showed clearly that there was in existence between the parties, a valid and subsisting contract for the sale of a 4 bedroom semi-detached Duplet at No:44A, Khartoum Street, Wuse Zone 5, Abuja. The fact that the sum of two million naira (N2 million) of the total purchase price of N12.5 million remained unpaid at the time the Respondent initiated the suit before the trial High Court did not invalidate or put to an end the existence of the contract.

What the Court looks at to determine the validity of a contract are the offer, the acceptance and consideration. All those elements existed in the instant case and there is no element that makes the contract either illegal or unenforceable. See Chabasaya v. Anwasi (2010) 10 NWLR (Pt. 1201)163 and B.A.T. (Nig.) Ltd. v. Ogunseye (2010) 4 NWLR (Pt. 1194) 343. The facts on record, do not support the argument of the Appellant that the Respondent had repudiated the contract.

The facts of this case disclose that the Respondent had done all that was required of him in the contractual relationship with the Appellant. It was the Appellant who created a crisis situation by refusing the Respondent access to the property after he (Respondent) had paid a substantial part of the contract. He then turned around to plead the crisis in support of his interest.

A Court of justice will not permit a person to profit from his own wrong. See Green v. Green (1987) 3 NWLR (Pt. 61) 480 at 516; Katagum & Anor v. Me-Mai (2014) LPELR – 23227 (CA) and Pan Bisbilder Ltd. v. First Bank Nig. Ltd. (2000) FWLR (Pt. 2) 177. Indeed, no Court can be used as an instrument to validate a reprehensible and fraudulent conduct.

On the whole therefore, I agree with my learned brother that this appeal is devoid of any merit. It is accordingly dismissed. I abide by the consequential orders made in this judgment.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was privileged to read in draft, the leading judgment just delivered by my learned brother, Hamma Akawu Barka, JCA, and I find that the manner in which the issues thrust up for determination in the appeal were resolved in the leading judgment are in accord with my views.

Accordingly, having also read the Records of Appeal and the briefs of argument filed and exchanged by the parties, I avow my concurrence that the appeal is devoid of merit; I therefore join in dismissing the appeal and on the same terms as set out in the leading judgment. I abide by the consequential orders made in the leading judgment, inclusive of the order as to costs.
Appeal dismissed.

Appearances:

Eyare J. Ogar For Appellant(s)

Ifeanyi Nrialike, with him, Stella C. A. For Respondent(s)