CHIEF ADENIRAN AJAO & COMPANY LIMITED v. ENGINEER ADEOLA AJIDAHUN (2019)

CHIEF ADENIRAN AJAO & COMPANY LIMITED v. ENGINEER ADEOLA AJIDAHUN

(2019)LCN/13257(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 15th day of May, 2019

CA/L/102/2010

RATIO

DAMAGES: REASON WHY DAMAGES ARE AWARDED WHEN THERE IS A BREACH OF CONTRACT

Now, it is rudimentary law that the purpose for the award of damages for breach of contract is to restore the party whose right has been violated to the same position, so far as money can do, as if his right had not been breached. This is based on the legal principle of restitutio in integrum: WAHABI vs. OMONUWA (1976) LPELR (3469) 1. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

DAMAGES: HOW DAMAGES ARE ASSESSED

Naturally, the innocent party will be entitled to a refund of the purchase price he paid, the consideration for which it was paid having failed. Additionally, since this is not in a case in which there is any complaint as to whether specific performance should have been awarded, the innocent party will be entitled to be compensated in damages. But what is the measure? In JACOB vs. AFAHA (2012) LPELR (7854) 1 at 10-11, this Court (per Ndukwe-Anyanwu, JCA) held:
One would ask what are the remedies for breach of contract? If one party to a contract is in breach, the other party is entitled to bring an action for damages so as to be placed in the same financial position as if the contractual terms had been duly carried out. The rule governing the time of assessment of damages is that damages are to be assessed as of the time when the cause of action arose, that is, the date of the breach.

The law requires that the damages be the product of the difference in the market value of the land at the date of the breach and the purchase price paid for the land. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

APPEAL: WHEN THE APPELLATE COURT WILL INTERFERE IN THE AWARD OF DAMAGES BY THE LOWER COURT
In UBA PLC vs. BTL INDUSTRIES LTD (2006) LPELR (3404) 1 at 118-119, the apex Court dealing with when an appellate Court will interfere with award of general damages held per Tabai, JSC:
…an appellate Court ought not to interfere with such award of general damages unless:-
(a) where the trial Court had acted under a mistake of law;
(b) where he has acted in disregard of principles; or
(c) where he has taken into account irrelevant matters or failed to take into account relevant matters; or
(d) where he has acted under a misapprehension of facts; or
(e) where injustice would result if the appellate Court does not intervene; or
(f) where the amount awarded is either ridiculously low or ridiculously high that it must have been a whole erroneous estimate of the damage.
See also OBERE vs. BOARD OF MANAGEMENT, EKU BAPTIST HOSPITAL (1978) 6-7 SC 15 and UNION BANK LTD vs. ODUSOTE BOOKSTORESÂ LTD (1995) 9 NWLR (PT 421) 558.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

JUSTICES:

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria

GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria

Between

CHIEF ADENIRAN AJAO & CO. LTD
-APPELLANT/CROSS RESPONDENT – Appellant(s)

AND

ENGINEER ADEOLA AJIDAHUN
-RESPONDENT/CROSS APPELLANT – Respondent(s)

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The provenance of this appeal is in the agreement between the parties for the sale of land situate at Abule Panu Mosebi Village (Ajao Estate) Anthony Village, Off Ikorodu Road, Lagos. The parties initially agreed for the sale of Plot 231. The Respondent/Cross Appellant made part payment but the Appellant/Cross Respondent later resold the land to another purchaser before the Respondent/Cross Appellant completed payment. The Respondent/Cross Appellant was then offered an alternative plot and the part payment he had previously made was credited to the alternative plot, id est, Plot 235. The Respondent/Cross Appellant completed payment for the Plot but once again it transpired that the said Plot 235 had been sold to a third party. The attempt to provide the Respondent/Cross Appellant with another plot fell through as issues were raised as to the Appellant/Cross Respondents title over the said plot. Consequent upon the failure by the Appellant/Cross Respondent to conclude the sale of the land, the Respondent/Cross Appellant instituted proceedings at the High Court of Lagos

State in SUIT NO. ID/2517/1997: ENGINEER ADEOLA AJIDAHUN vs. CHIEF ADENIRAN AJAO & CO. LIMITED. The relief claimed in the Amended Statement of Claim is as follows:
SPECIFIC PERFORMANCE of the contract for the sale of a parcel of land measuring approximately 1055.24 Sq yards at Abule Panu Mosebi Village Off Ikorodu Road now known as Ajao Estate Anthony Off Ikorodu Road, Lagos.
ALTERNATIVELY
The sum of N10 Million (Ten Million Naira Only) being damages of the breach of contract for the sale of a parcel of land measuring approximately 1055.24 Sq yards at Abule Panu Mosebi Village Off Ikorodu Road now known as Ajao Estate Anthony Village Off Ikorodu Road Lagos.

Pleadings were filed and exchanged and the matter was subjected to a full dressed hearing at which testimonial and documentary evidence was adduced. In its judgment, the lower Court, Coram Judice: Okuwobi, J. entered judgment for the Respondent/Cross Appellant in terms of the alternative relief claimed and inter alia, awarded the sum of N2.9 million as damages for breach of contract. The Appellant/Cross Respondent was dissatisfied with the judgment and appealed against

the same. The Respondent/Cross Appellant was equally dissatisfied with the measure and quantum of damages awarded by the lower Court and he filed a cross appeal. So there is an appeal and a cross appeal. The scarified judgment of the lower Court which was delivered on 14th September 2009 is at pages 69-91 of the Records while the Notice of Appeal is at pages 92-96 of the Records. The Notice of Cross Appeal was filed on 9th December 2009.

The Records of Appeal having been compiled and transmitted, the parties filed and exchanged briefs of argument. The Appellants brief was filed on 17th March 2010. The Appellant also filed a Reply Brief/Cross Respondents Brief on 3rd October 2018 but deemed as properly filed on 27th March 2019. The Respondents/Cross Appellants Brief was filed on 23rd December 2010 but deemed as properly filed on 5th March 2014. At the hearing of the appeal, the learned counsel for the parties urged the Court to uphold their respective submissions in the determination of the appeal.

THE APPEAL
The Appellant/Cross Respondent distilled two issues for determination in the appeal namely:

1. Whether or not in the circumstance of the case, Learned Trial Judge having rightly held that the Claimant had waived his right to any claim in respect of plot 235 and subsequently dismissed the claims to specific performance was right to have awarded damages to the claimant for the sum of N2,996,834.62 in respect of the alternative claim of damages for the breach of contract based on the same plot 235.
2. If the answer to issue no. 1 is in the negative, whether or not the Learned Trial Judge was right to have assessed the loss of bargain as the difference between the contract price of the said plot and the market value of the land in April 1994, the alleged date of the breach, when no evidence was led to the value of the said plot as at the alleged date of breach.

The Respondent/Cross Appellant equally formulated two issues for determination as follows:
1. Whether or not in the circumstances of the case, Learned Trial Judge having dismissed the claim to specific performance in respect of plot 235 was right to have awarded damages to the claimant for the sum of N2,996,834.62 in respect of the alternative claim of damages for the breach of contract based on the same plot 235.

2. If the answer to issue No. 1 is in the positive, whether or not the Learned Trial Judge was right to have assessed the loss of bargain as the difference between the contract price of the said plot and the market value of the land in April 1994, the alleged date of the breach, when no evidence was led to the value of the said plot as at the alleged date of breach.

There is nothing to choose from in the issues crafted by the parties. They are six and one half dozen of the other. Accordingly the lodestar in considering the submissions of learned counsel and resolving this appeal will be the issues as nominated by the Appellant.

ISSUE NUMBER ONE
Whether or not in the circumstance of the case, Learned Trial Judge having rightly held that the Claimant had waived his right to any claim in respect of plot 235 and subsequently dismissed the claims to specific performance was right to have awarded damages to the claimant for the sum of N2,996,834.62 in respect of the alternative claim of damages for the breach of contract based on the same plot 235.

SUBMISSIONS OF THE APPELLANT/CROSS RESPONDENTS COUNSEL
It was submitted that the lower Court found that the Respondent/Cross Appellant compromised his right by accepting a subsequent offer in replacement of Plot 235 and that having so found that the Respondent/Cross Appellant had waived his right in respect of Plot 235, the lower Court was wrong to award damages in respect of a right that had been waived; since waiver is an abandonment of a right vide ADMINISTRATORS/EXECUTORS OF THE ESTATE OF GEN. SANI ABACHA (DECEASED) vs. EKE-SPIFF (2009) 7 NWLR (PT 1137) 142, ARIORI vs. ELEMO (1983) 1 SC 13 and EZOMO vs. OYAKHIRE (1985) 1 NWLR (PT 2) 195 at 202. It was posited that the claim for specific performance failed as a result of the waiver which meant that there was no enforceable contract or any contract anymore; and that since there was no longer any contract in existence, damages for breach of contract could not have been awarded.

SUBMISSIONS OF THE RESPONDENT/CROSS APPELLANTS COUNSEL
The Respondent/Cross Appellant argues that the lower Court never held that he waived his right to any claim in respect of Plot 235. It was stated that the word used by the lower Court was compromised and not waived.

Referring to Lexicon Webster Dictionary of English Language, Deluxe Encyclopic Edition, Chambers Dictionary, 20th Century Edition and Blacks Law Dictionary on the definition of compromise and waiver, it was opined that there was a difference between compromise and waiver. It was maintained that the parties had an enforceable contract which could be breached and that where there is a breach, a remedy lies; but that the lower Court found that the remedy of specific performance would not lie because of the intervening third party interest and rightly awarded the alternative relief of damages. The cases of BEST (NIG) LTD vs. BLACKWOOD HODGE LTD (1998) 10 NWLR (PT 569) 253 at 264, UNIVERSAL VULCANISING AND TRADING CO LTD vs. IJESHA UNITED TRADING AND TRANSPORT CO. LTD (1992) 9 NWLR (PT 266) 388, ANAEZE vs. ANYASO (1993) 5 NWLR (PT 291) [no page stated] and KUSFA vs. UNITED BAWO CONSTRUCTION CO. LTD (1994) 4 NWLR (PT 336) [no page stated] were relied upon. It was conclusively contended, without conceding, that if compromise used by the lower Court meant waived, it could mean waiver of entitlement to an order for specific performance and not in relation to

damages for breach of contract of sale of the land.

APPELLANT/CROSS RESPONDENTS REPLY ON LAW
In the Reply Brief the Appellant/Cross Respondent doubled down on the submission that compromise as used by the lower Court meant waiver since both compromise and waive meant to surrender a claim vide Blacks Law Dictionary and AMAECHI vs. INEC (2008) 5 NWLR (PT 1080) 227 at 448-449; and that the Respondent/Cross Appellant compromised his right to Plot 235 by electing to accept the plot offered in replacement for Plot 235. It was submitted that what the Respondent/Cross Appellant was found to have waived was all rights and claim relating to the contract for Plot 235, including the claim for damages and not solely the claim for specific performance.

RESSOLUTION OF ISSUE NUMBER ONE
The disceptation under this issue is not convoluted. On the contrary, it is simple and straightforward. When properly contextualized, the contention is whether the lower Court was right to have awarded damages for breach of contract after refusing to make the order for specific performance sought by the Respondent/Cross Appellant. The entitlement of a claimant

to damages for breach of contract arises where there is an enforceable contract. So in the circumstances of this matter, notwithstanding that the claim for specific performance failed, the Respondent/Cross Appellant would be entitled to the award of damages for breach of contract where the evidence shows that there was an enforceable contract. The law is settled that specific performance being a discretionary equitable remedy will not be decreed where the claimant would be adequately compensated by damages: AFROTEC TECH. SERVICES (NIG) LTD vs. M.I.A. & SONS LTD (2000) 15 NWLR (PT 692) 730 at 790, EZENWA vs. OKO (2008) LPELR (1206) 1 at 17, HELP (NIG) LTD VS. SILVER ANCHOR (NIG) LTD (2006) LPELR (1361) 1 at 7 and ACHONU vs. OKUWOBI (2017) LPELR (42102) 1 at 31.
Let me state that the lower Court did not employ the word waive in its judgment, so the formulation of the issue by the Appellant/Cross Respondent that the lower Court held that the Respondent/Cross Appellant waived his right is misleading as it does stem from the decision of the lower Court. Howbeit, and with due deference to learned counsel, it seems to me that the

hair-splitting on whether compromise as used by the lower Court is the same thing as waiver does not arise. I iterate that the entitlement to award of damages for breach of contract arises where there has been an enforceable contract that has been breached. So if the lower Court found and held that there was an enforceable contract which the Appellant/Cross Respondent breached, then the Respondent/Cross Appellant became entitled to damages notwithstanding that specific performance was not decreed.
So what was it that the lower Court decided as it relates to the existence of an enforceable contract and the breach of the same? It is hornbook law that the judgment of a Court has to be read as a whole and understood in that light. It is not to be read in isolation, piecemeal and/or by instalments. The judgment has to be read harmoniously and in an integral manner with its various parts. See ODOFIN vs. ONI (2001) LPELR (2226) 1 at 11, AMBER RESOURCE (NIG) LTD vs. CENTURY ENERGY SERVICES LTD (2018) LPELR (43671) 1 at 12-13, ODIBO vs. FIRST BANK (2018) LPELR (46628) 1 at 14-15 and ADEBAYO vs. A-G OGUN STATE (2008) LPELR (80) at 22-23.

In dealing with whether the evidence disclosed an enforceable contract which was breached, the lower Court held as follows at page 87 of the Records:
I am not satisfied by the evidence before me, that the state of affair was such as was described by the DW1 the Defendant witness. I prefer the version of the Claimant that the Defendant failed to confer proper title on him and breached this contract of the sale of plot 235. There is no doubt that there was a contract for the sale of plot 235 to the Claimant evidenced by exhibit P5. The draft conveyance contains all the pre-requisites of a valid contract, I see no reason why the contract cannot be enforceable.
In the peculiar circumstances of this case however I am unable to agree with the submissions of the Defendant Counsel that the contract in the instant case is not valid or enforceable. I however do not find the order of specific performance sought available in this case, since the claim is not for an order to compel the Defendant to issue the Claimant, with the title document on plot 235 which from all available evidence has been transferred to a

third party. The Claimant in equity is entitled to his title document pursuant to a concluded contract of sale of the plot. He has however compromised his right by electing to accept the subsequent offer made of plots 27 and 28 Ajao Estate Phase 1 Extension Anthony Village Lagos in replacement of plot 235. The Claimants claim for an order of specific performance is not tied to those plots; the claim on specific performance must therefore fail and is hereby dismissed.
From the above pericope, the lower Court held that there was a valid and enforceable contract which the Appellant/Cross Respondent was in breach of. The lower Court however felt unable to grant the equitable remedy of specific performance because of the intervening third party interest in Plot 235, coupled with the fact that the specific performance sought was not in respect of the land which the Respondent/Cross Appellant had elected to take in replacement for Plot 235. By all odds, an integral and harmonious reading of the decision of the lower Court makes it effulgent that the lower Court held that there was an enforceable contract which was breached, and for which it mulcted the

Appellant/Cross Respondent in damages for the breach having held that specific performance was not appropriate in the diacritical circumstances of the matter.

There is a further aspect. The lower Court held that there was a valid and enforceable contract which the Appellant/Cross Respondent breached. The Appellant/Cross Respondent has not challenged this decision of the lower Court that there was an enforceable contract which it breached. The said finding accordingly remains valid and subsisting: ONAFOWOKAN vs. WEMA BANK (2011) 5 SC (PT II) 1, UDOM vs. E. MICHELETTI & SONS LTD (1997) 8 NWLR (PT 516) 187 at 200, KOYA vs. UBA LTD (1997) 1 NWLR (PT 481) 251 at 266 and OSHODI vs. EYIFUNMI (2000) FWLR (PT 8) 127. This being so, the Appellant/Cross Respondent cannot be heard to complain about damages having been awarded by the lower Court consequent upon the finding that there was a valid and enforceable contract which the Appellant/Cross Respondent breached. In a coda, the indubitable conclusion is that this issue number one must perforce be resolved against the Appellant.

ISSUE NUMBER TWO
If the answer to issue no. 1 is in the negative, whether

or not the Learned Trial Judge was right to have assessed the loss of bargain as the difference between the contract price of the said plot and the market value of the land in April 1994, the alleged date of the breach, when no evidence was led to the value of the said plot as at the alleged date of breach.

SUBMISSIONS OF THE APPELLANT/CROSS RESPONDENTS COUNSEL
It is the contention of the Appellant/Cross Respondent that the lower Court had rightly held following OJERINOLA vs. ADEWALE (1980) NCLR 372 that the measure of damages in contract for sale of land is the amount paid together with the difference between the purchase price and the market value of the land at the time of the breach of the contract. The case of DIAMOND vs. CAMPBELL-JONES (1960) 1 ALL ER 583 at 591 was further referred to.

It was opined that the Respondent led no evidence to show the value of Plot 235 at the time of the breach of the contract as the evidence of the PW1 was the value of the land at the time the action was commenced and the evidence of the DW2 was the value at the time he testified in March 2006 and not as at April 1994 when the breach occurred. It was

conclusively asserted that in the absence of evidence as to the value of the land as at the date of the breach there was no basis upon which the Court properly assessed the damages it awarded and the same ought to be set aside.

SUBMISSIONS OF THE RESPONDENT/CROSS APPELLANTS COUNSEL
The Respondent/Cross Appellant states that without prejudice to his cross appeal, wherein he contends that the assessment of damages should be based on the value of the land as at the date of judgment, that the quantum of damages awarded by the lower Court is supported by the evidence and this being so an appellate Court would not interfere with the award vide MUTUAL AID SOCIETY vs. AKERELE (1965) 4 NSCC 268 at 272.

APPELLANT/CROSS RESPONDENTS REPLY ON LAW
In the Reply Brief, the Appellant/Cross Respondent argues that the Respondent/Cross Appellant had abandoned issue number two as formulated as he failed to proffer any argument in support of the issue. It was further stated that the Respondent/Cross Appellants argument not being related to issue number two should be struck out. It was asserted that an appellate Court will interfere in an

award of damages where the trial Court acted, inter alia, in disregard of principles or where it took irrelevant matters into account or failed to take relevant matters into account. The case of UBA PLC vs. BTL IND. LTD (2006) 19 NWLR (PT 1013) 61 at 143 was cited in support. The Appellant/Cross Respondents contention, it was posited, was that the lower Court acted on the wrong principle of law and took irrelevant matters into account when it used evidence of the value of the land when the action was instituted and during trial to determine the quantum of damages and that an appellate Court can therefore interfere with the damages awarded.

RESOLUTION OF ISSUE NUMBER TWO
For starters, I am unable to agree with the Appellant/Cross Respondent that the Respondent/Cross Appellant did not proffer any submissions on issue number two as distilled and that the Respondent/Cross Appellants argument were not in respect of the issue. The Respondent/Cross Appellants argument as I understand it is that the damages awarded by the lower Court is based on the evidence on record and that this being so an appellate Court will not interfere.

Issue number two as formulated interrogates whether there was evidence of the value of the land as at the date of the breach of contract on the basis of which damages could be assessed. The Respondent/Cross Appellants contention is that the damages awarded is based on the evidence on Record. It may be terse and laconic but it is definitely in tandem with the issue formulated. Of course, the issue challenges the damages awarded and submissions on when an appellate Court will interfere with damages awarded by a trial Court are relevant in the circumstances. There is therefore no basis to discountenance the Respondent/Cross Appellants submissions and/or strike out his issue number two as hankered after by the Appellant/Cross Respondent.

date of judgment or the position as at that the date when the cause of action arose, that is, when the breach of the contract occurred? There is no complaint in this appeal about the refusal of the relief for specific performance by the lower court. The parties are happy with it. So be it. Naturally, the innocent party will be entitled to a refund of the purchase price he paid, the consideration for which it was paid having failed. Additionally, since this is not in a case in which there is any complaint as to whether specific performance should have been awarded, the innocent party will be entitled to be compensated in damages. But what is the measure? In JACOB vs. AFAHA (2012) LPELR (7854) 1 at 10-11, this Court (per Ndukwe-Anyanwu, JCA) held:
One would ask what are the remedies for breach of contract? If one party to a contract is in breach, the other party is entitled to bring an action for damages so as to be placed in the same financial position as if the contractual terms had been duly carried out. The rule governing the time of assessment of damages is that damages are to be assessed as of the time when the cause of action arose, that is, the date of the breach.

It is tempting, given the fact that land generally appreciates in value, to contend that the assessment to be used should be the value of the land as at the date of judgment, since that is the time when the rights of the parties are declared. However, it has to be remembered that the right being enforced accrued when the breach of the contract occurred, such that it is that position in which the innocent party would have been at the time the breach occurred; namely, being put into funds that will enable him acquire an alternative plot when the breach occurred, that he will be compensated for in damages. It seems to me therefore that the measure of damages for contract for sale of land is the amount paid together with the difference between the purchase price and the market value of the land at the time of the breach of contract. This was the legal principle applied by the lower Court in assessing the damages it awarded. The Appellant/Cross Respondent however contends that there was no evidence adduced as to the value of the land at the time of the breach. In assessing the quantum of damages the lower Court stated as follows at page 91 of the Records:

The contention of the Defendant Counsel that the Claimant did not lead evidence of the value at the time of the breach may not necessarily be so. I recount the evidence of PW1 that before he took up the action the value of the plot was N2.5 million naira. DW2 also gave evidence that plots were sold on the Estate between N2.5 million to N3 million. There is a common denominator on the value from the two sides which will be basis upon which damages will be assessed in the case. Taking the said pieces of evidence the assessment of loss of bargain will be the difference between the contract price of N3,165.38 and the market value of the land in April 1994 which is N2,996,834.62 (Two million nine hundred and ninety six thousand, eight hundred and thirty-four naira, sixty-two kobo)
I equally find the Claimant entitled to special damages which is hereby assessed at N3,165.38 value of the purchase price of plot 235. It is apparent from the N2.9 million which the lower Court awarded as damages that it relied on the testimony of the DW2 who testified that the value of the land

was N2.5 million to N3 million and the lower Court used the upper estimate of N3 million in assessing the damages awarded. The pertinent question is whether the testimony of the DW2 was on the market value of the land as at the date of the breach of contract. It is important to state that at page 90 of the Records the lower Court had arrived at the date of the breach of contract where it held that:
From exhibit P6 the letter calling off the bargain and offering plots 27 and 28 which was 2nd April 1994. I find this to be the date of breach.
Now, was the evidence of the DW2 on the value of the land in April 1994? The witness statement on oath of the DW2 is at page 22 of the Records. It was deposed to on 2nd March 2006. In paragraph 4 thereof it is deposed thus: 4. By virtue on my position in the Defendant Company. I know as a fact that the current going rate of a land measuring approximately 1055.24 sq. yds in any part of Ajao Estate, Anthony Village Lagos is between N2.5 Million and N3 Million. (Emphasis supplied)It is limpid that the testimony is not as to the value of land in

April 1994 but the current value, id est, as at March 2006 when the deposition was made. The lower Court was therefore wrong in relying on the testimony of the DW2 in assessing the quantum of damages. The matter does not end there.
The law requires that the damages be the product of the difference in the market value of the land at the date of the breach and the purchase price paid for the land. Apart from the testimony of the DW2, is there any evidence on record of the market value as at the date of the breach. I would answer in the affirmative. It is in the testimony of the Pw1. The lower Court referred to the said testimony but went ahead, to use the testimony of the DW2, which as earlier stated was not on the market value as at the date of the breach in 1994. At pages 51-52 of the Records the PW1 testified as follows:
I kept going to the Defendants so that I could collect the conveyance but the Defendant gave excuses when I went to them. I was eventually informed at their office that plot No 235 had been sold to someone else. The Defendants pleaded with me again to settle for another plot … Eventually they wrote to me in 1994 allocating

plots 27 and 28 of their new extention known as Ajao Phase 1 in Anthony Village … At the time I was issued the land the value of land was N2.5 Million in that area being in prime area.
This is clear evidence of the value of the land as at the date of the breach, when it is remembered that it is the date of the letter allocating the replacement plots to the Respondent/Cross Appellant that the lower Court found and held is the date of the breach of contract. Therefore the testimony as to the value of the land at the time the Respondent/Cross Appellant was issued the land is in evidence on record on the value of land in the area when the breach occurred. The testimony was not as the lower Court loosely put it, evidence of the value before he took up the action. No, it is evidence of the value at the date of the breach. It is instructive that the PW1 was not cross examined on his testimony on N2. 5 million being the value of the land as at the date of the breach. The evidence being unchallenged discharges the burden on the Respondent/Cross Appellant on a minimum of proof: STEYER (NIG) LTD vs. GADZAMA (1995) 7 NWLR (PT 407) 305 and

MEDICALÂ AND DENTAL COUNCIL OF NIG. vs. SYSTEM INFORMATION LTD (1998) 12 NWLR (PT 572) 258. So the market value to be used in assessing damages is not the N3 million employed by the lower Court but the unchallenged N2. 5 million.
In UBA PLC vs. BTL INDUSTRIES LTD (2006) LPELR (3404) 1 at 118-119, the apex Court dealing with when an appellate Court will interfere with award of general damages held per Tabai, JSC:
…an appellate Court ought not to interfere with such award of general damages unless:-
(a) where the trial Court had acted under a mistake of law;
(b) where he has acted in disregard of principles; or
(c) where he has taken into account irrelevant matters or failed to take into account relevant matters; or
(d) where he has acted under a misapprehension of facts; or
(e) where injustice would result if the appellate Court does not intervene; or
(f) where the amount awarded is either ridiculously low or ridiculously high that it must have been a whole erroneous estimate of the damage.
See also OBERE vs. BOARD OF MANAGEMENT, EKU BAPTIST HOSPITAL (1978) 6-7 SC 15 and UNION BANK LTD vs. ODUSOTE BOOKSTORESÂ LTD (1995) 9 NWLR (PT 421) 558.

As already demonstrated in this judgment, the lower Court acted under a misapprehension of the facts in the evidence before it by relying on the irrelevant testimony of the DW2 and failed to take into account the relevant testimony of the PW1 and resultantly acted in disregard of legal principles by failing to use the market value of the land as at the date of the breach in assessing the damages. In the circumstances an appellate Court will ineluctably intervene so that injustice is not occasioned. Therefore, given the unchallenged value of the land as N2.5 million, the damages to be awarded is the said value at the date of the breach of contract in 1994, less the sum of N3, 165.38 which it is agreed on all sides was the purchase price the Respondent/Cross Appellant had paid in respect of the contract for sale of land between 1973 and 1976. The damages awarded by the lower Court is consequently reduced from N2.9 million to N2, 496,834.62k (Two Million, four hundred and ninety six thousand, eight hundred and thirty four naira, sixty two kobo). To the extent that the damages awarded has been so reduced, this issue

number two is partly resolved in favour of the Appellant and marks the partial success of the appeal. We turn to the cross appeal.

THE CROSS APPEAL
The Respondent/Cross Appellant distilled two issues for determination in the cross appeal as follows:
i. Whether the learned trial judge was right in assessing the quantum of damages as the difference between the purchase price and the market value at the date of the breach of contract and not at the date of judgement.
ii. Whether the learned trial judge was right to have refused awarding the sum of N10,000,000 claimed as damages by the Claimant for breach of contract when the evidence of the Claimant was not controverted.

In the Reply Brief/Cross Respondents Brief the Appellant/Cross Respondent crafted two issues for determination in the cross appeal, namely:
i. Whether the learned Trial Judge was right in stating that the quantum of damages for breach of contract of sale of land where there is no defect in title is the difference between the purchase price and the market value of the date of the breach of contract and not the date of Judgment.

ii. Whether the Learned Trial Judge was right not to have awarded the sum of N10, 000.00 claimed as damages by the claimant for breach of contract when the evidence of the Claimant were not controverted.

The issues formulated by the parties are the same two and tuppence. Indeed the issues are intertwined and interwoven such that they dovetail one into the other. Accordingly, I would consider the submission of learned counsel on the issues en bloc and thereafter seamlessly resolve the cross appeal.

SUBMISSIONS OF THE RESPONDENT/CROSS APPELLANTS COUNSEL
The quiddity of the Respondent/Cross Appellants contention is that the lower Court was wrong to use the value of the land at the date of breach of the contract as the measure for calculating the damages instead of the value of the land as at the date of the judgment. It was maintained that there was no difference between a breach of contract simpliciter and a breach of contract for sale of land and that the principle in awarding damages is restitutio in integrum, to put the party in the position he would have been if the breach had not occurred. The cases of OKONGWU vs. NNPC (1989) 4

NWLR (PT 115) 264, OBIMIAMI BRICK & STONE NIG. LTD vs. ACB (1992) 3 NWLR (PT 229) 260 and STITCH vs. A-G FEDERATION (1986) 5 NWLR (PT 46) 1007 at 1030 were referred to. It was further stated that the Courts take inflationary trend into consideration in awarding damages and that where specific performance is claimed as in the instant case, a Court in awarding damages as compensation should take into account the higher value of the property at the time of judgment as opposed to the lower value at the time of the breach. The cases of NEPA vs. ALLI (1992) 8 NWLR (PT 259) 279 at 304 and WROTH vs. TAYLOR (1974) CH 30 at 825 [sic] were relied upon.

The Respondent/Cross Appellant further contended that the lower Court having found that the testimony of the PW2 that the current estimated value of the land was N10 million was credible and unchallenged was in error when it failed to award the damages of N10 million claimed. The cases of OSUJI vs. ISIOCHA (1989) 1 NWLR (PT 111) 63 and BOSHALI vs. ALLIED COMMERCIAL EXPORTERS LTD (1961) 2 SCLR 322 were cited in support. The Court was urged to intervene and award the correct amount as damages since the damages awarded was

manifestly too low and the lower Court had proceeded on the wrong legal principle vide OKAFOR vs. OKITIAKPE (1973) 8 NSCC 70 at 73.

SUBMISSIONS OF THE APPELLANT/CROSS RESPONDENTS COUNSEL
The conspectus of the Appellant/Cross Respondents submission is that the lower Court was right when it held that there is a distinction between measure of damages for breach of contract simpliciter and breach of contract for sale of land. It was maintained that the measure of damages is the market value of the land at the time of the breach of the contract vide OJERINOLA vs. ADEWALE (supra) and JACOB vs. AFAHA (2012) LPELR 7854 (CA). The cases of NEPA vs. ALLI (supra) and STITCH vs. A-G FEDERATION (supra) relied upon by the Respondent/Cross Appellant were submitted to be inapplicable as they dealt with assessment of damages in tort and did not involve the breach of any form of contract.

The Appellant/Cross Respondent further submitted that the lower Court was correct in not awarding the sum of N10 million claimed as the current estimated value of the land since on the authority of OJERINOLA vs. ADEWALE (supra) the measure of damages is the

difference between the purchase price and the market value of the land at the time of the breach. The current market value of the land it was opined was immaterial in the assessment of the damages to award.

RESOLUTION OF THE CROSS APPEAL
The summation of the contention in the cross appeal is the antithesis of the contention in issue number two of the main appeal. In advocating their relative positions under the said issue number two the parties proffered submissions on whether there was evidence of the market value of the land as at the date of the breach of contract. In resolving the said issue number two, I inter alia, held that the legal principle is that the measure of damages in cases of breach of contract for sale of land is the amount paid together with the difference between the purchase price and the market value at the time of the breach of contract. I find nothing in the submissions in this cross appeal to depart from this settled legal position. The concomitance is that the foofaraw made in the cross appeal that the measure of damages should have been the value of the land at the date of the judgment and that the N10 million proved as the

current value of the land ought to have been granted cannot fly. The Respondent/Cross Appellants contention is an invitation for the Court to act on the wrong principles of law in award of damages and thereby grant him a windfall; restitutio in opulentiam. This invitation, no matter how alluring, will not be accepted by the Court. Therefore, I decline the invitation. The lower Court acted on the correct legal principles by using the value of the land as at the date of the breach of the contract in assessing and awarding damages. The issues for determination in the cross appeal are resolved against the Respondent/Cross Appellant.

CONCLUSION
It is now the appropriate time to berth this judgment at the quays. I have in this judgment considered the main appeal and the cross appeal. Relative success has been recorded in the main appeal as there has been a downward review of the damages awarded by the lower Court. The main appeal therefore succeeds in part. The issues for determination in the cross appeal were resolved in favour of the Appellant/Cross Respondent, thus signposting that the cross appeal is devoid of merit. The cross appeal is

accordingly dismissed. The decision of the lower Court, save for the reduction in the damages awarded as set out in this judgment, is hereby affirmed. The parties shall bear their respective costs of this appeal.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the thorough judgment prepared by my learned brother, Ugochukwu Anthony Ogakwu, J.C.A.

GABRIEL OMONIYI KOLAWOLE. J.C.A.: I had the privilege to read in its draft form, the lead judgment just delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA wherein he upheld in part, the main appeal by reducing the sum awarded by the lower Court as damages for the breach of contract of sale of land to the Respondent and in considering the Respondents Cross Appeal, dismissed same as it was held to be devoid of any merit.

Reading the said judgment vis-a-vis the admitted evidence (oral and documentary) contained in the Record of Appeal and the Briefs filed and exchanged by both parties, I really do not have any useful contribution to make, than to accept the lead judgment as one which dealt with all the issues in contention and resolved them in

coming to the conclusion which I had earlier stated.
I abide with the consequential order made as to costs, that both parties shall bear their respective costs.

Appearances:

Aanu Ogunro, Esq. For Appellant(s)

A. A. Abdulwahab, Esq. with him, Ms. Chioma Onwuzulike For Respondent(s)

Appearances

Aanu Ogunro, Esq. For Appellant

AND

A. A. Abdulwahab, Esq. with him, Ms. Chioma Onwuzulike For Respondent