CHIEF D.S. YARO V AREWA CONSTRUCTION LIMITED (IN RECEIVERSHIP) & 2 ORS

CHIEF D.S. YARO V AREWA CONSTRUCTION LIMITED (IN RECEIVERSHIP) & 2 ORS

(2007) LCN/3702(SC)

In the Supreme Court of Nigeria

Friday, June 29, 2007


Case Number:SC.213/2000

 

JUSTICES:

NIKI TOBI, JUSTICE, SUPREME COURT

GEORGE ADESOLA OGUNTADE, JUSTICE, SUPREME COURT

ALOMA MARYAM MUKTAR, JUSTICE, SUPREME COURT

WALTER SAMUEL NKANU ONNOGHEN, JUSTICE, SUPREME COURT

CHRISTOPHER M. CHUKWUMA-ENEH, JSC (Lead Judgment), JUSTICE, SUPREME COURT.

APPELLANTS

CHIEF D.S. YARO

 

RESPONDENTS

1. AREWA CONSTRUCTION LIMITED (IN RECEIVERSHIP)2. UNITED BANK FOR AFRICA LIMITED3. ALHAJI MUDI YARO MOHAMMED

C.M. CHUKWUMA-ENEH, JSC (Lead Judgment): The plaintiff in this matter by a writ of summons has claimed against the defendants as follows:- “(a) A declaration that the agreement by the 1st defendant to sell to the plaintiff all its interest in that property known as Plots Nos.157/159 Club Road, Kano, had been completed by 1984, and that the 1st defendant could not unilaterally rescind the said agreement thereafter. (b) A declaration that the plaintiff is entitled to delivery over to him of all the documents of title to the property aforesaid including in particular the certificate of occupancy Nos. 13819 and 6929 registered as No. 140 at page 140 in volume. 8 (Misc.) at the Lands Registry, in the Office at Kano at present, in the custody of the 2nd defendant. (c) N500,000.00 special and general damages for wrongful refusal to return the said documents of title to plaintiff.” The 1st defendant counter-claimed from the plaintiff in its statement of defence and counter-claim as follows: PAGE| 2 “i.  An order for account by the plaintiff to the 1st defendant of all sums of money the plaintiff has been collecting and collected from tenants since May, 1985 till date. ii.  Payment of such monies to the 1st defendant forthwith. iii. Mesne profit on the 1st apartment in the said house and premium by the plaintiff in respect of No. 157/159 Club Road, Kano till date. iv.  A sum of N2 million, for the increased indebtedness on the loan and interest by the defendant to the 2nd defendant as a result of the breach of promises made by the plaintiff in respect of the said property No. 157/159 Club Road, Kano State. v.  N100,000.00 being damages special and general for the trespass committed and still continued to be committed by the plaintiff on 1st defendant’s property No. 157/150. Club Road, Kano State.”    Particulars of damages:-      Special Damages  Cost of damages to the building   N400,000.00 and premises of the 1st defendant  at No. 157/159 Club Road, Kano State General damages  N100,000.00 N500,000.00 The 2nd respondent also in its Amended statement of defence counter-claimed from the plaintiffs as follows as per paragraph 30 thereof at page 95 of the record: “a. A declaration that the 2nd defendant by its authorised representatives and the plaintiff agreed orally at a meeting on 23rd July, 1985 as well as in a letter of the same date from the 2nd defendant to the plaintiff that the 2nd defendant would release the title documents to Nos. 157/159 Club Road, Kano to the plaintiff upon the payment by the plaintiff to the defendant of the sum of N500,000.00. b.  A declaration that the agreement between the plaintiff and the 2nd defendant referred to above was on account of the 2nd defendant’s charge in the sum of N500,000.00 over the said properties Nos.157/159 Club Road, Kano owned by the 1st defendant and that the plaintiff so knew and/or agreed with the defendant. PAGE| 3 c. A declaration that the agreed agreement between the plaintiff and the 2nd defendant referred to above was to be performed immediately on the day it was made orally and in the letter aforesaid i.e. on 23rd July 1985, or on or before 3rd November, 1985 and that the plaintiff failed to perform his own part thereof. d.  A declaration that the plaintiffs failure to perform his part of the contract aforesaid automatically brought it to an end and the 2nd defendant offer pursuant thereof lapsed. e.   A declaration that the plaintiffs failure or neglect to pay the sum of N500,000.00 to the 2nd defendant pursuant to their agreement was wrongful and that the 2nd defendant  has thereby suffered loss and damage. f. General damages in the sum of N100,000.00 for the plaintiff s breach of contract between himself and the 2nd defendant referred to above and subject matter of these presents. g. Costs and further or other relief.” The record has showed that the plaintiff filed replies to the counter-claims, pleadings were filed and exchanged, between the parties and at the trial the plaintiff testified and called 2 witnesses; the 1st and 2nd respondents each called one-witness in their defence. The trial court in a considered judgment found for the defendants and made the following orders as culled from the judgment of the court below: “(1)  That the plaintiff s claim failed and were all dismissed. (2) That the plaintiff should render account to the 1st defendant. (3) That the plaintiff should vacate the premises and stop collecting rent on the premises. (4) That the plaintiffs should pay N1,000,000.00 General damages to the 1st Defendant. (5) That the plaintiffs should pay N100,000.00 to the 2nd defendant. (6)  That the 1st defendant should refund to the plaintiff the sum of N1,800,000.00 after the property, should have been sold.” The plaintiff, aggrieved by the decision appealed to the Court of Appeal, Kaduna Judicial Division by a Notice of Appeal containing 17 grounds of appeal. The parties in compliance with Rules of the Court below filed and exchanged their respective briefs of argument. The court below after hearing the appeal gave a considered judgment dismissing the plaintiffs appeal and in affirming the decision of the trial court, the court below held as follows as at p.319 of the Record (the last, paragraph): PAGE| 4 “From all I have said in this judgment, I am of the firm view that the trial judge correctly dismissed the appellants claim before him and the appeal in respect of that aspect of his judgment is hereby dismissed. The trial judge was also right in awarding the sum of N100,000.00 as general damages to the 2nd respondent and I dismiss the appeal as it relates to that award. As for the counter-claim of the 1st respondent it is my view that the 1st respondent failed to prove its claim and the trial judge was wrong, in giving judgment in its favour. Accordingly the appeal succeeds in that respect and the judgment of the trial court in favour of the 1st respondent in its counter-claim is hereby set aside and the counter-claim is dismissed. From the circumstances of this case. I do not consider it appropriate to award any costs.” With these pungent conclusions the appellant’s case was dismissed; and feeling greatly aggrieved by the decision he has finally appealed to this Court upon a Notice of Appeal dated 3/10/1996 and therein has raised 4 grounds of appeal. Parties, again, filed and exchanged their briefs of argument in this court. The appellant filed his brief of argument on 2/4/2001 and has therein distilled 3 issues for determination and they read as follows: “(1)  Whether the Court below was not in error when it affirmed the trial Court’s decision that there was no complete agreement of the sale of the disputed property to  the Appellant. (2) Whether the court below did not misdirect itself when in effect it held that there could not have been a valid sale of the property to the Appellant because the 1st Respondent had offered the property for sale to INCAR NIGERIA LIMITED and because the Appellant knew that until he paid the balance, of N500,000.00 to the 2nd Respondent, he  could not have a valid transaction on the property. PAGE| 5 (3) Whether the Court below was not in error by affirming the award of N100,000.00 made in favour of the 2nd Respondent as general damages. The 1st respondent also filed a brief of argument of 4/8/2004, which was deemed properly so filed and served; it has identified in the said brief of argument 2 issues for determination as follows: “(1) Whether the Court of Appeal was right in coming to the conclusion that there was no complete agreement of sale of the disputed property proved before the trial court to enable it order specific performance thereof. (2) Whether the Court of Appeal was right when it held that the payment of the sum of N500,000.00 by the appellant to the respondent was preconditioned to the finalization and/or validation of the agreement of sale.” The 3rd respondent filed a brief of argument on 28/9/2001, besides, he has taken a point of preliminary objection and in the event of it being overruled has identified 2 issues for determination in his brief of argument as follows:- “(1) Whether the Court of Appeal was right in holding, that payment of the sum of N500,000.00 to the 2nd respondent was a condition precedent to the agreement for the sale of the disputed property. (2) Whether the plaintiff can succeed in his claim in the absence of the Governor’s consent, pursuant to the provisions of the land Use Act.” The appellant has in response to the new questions raised in the briefs of argument of the 1st and 2nd respondents on the preliminary objection, filed two reply briefs. The one in regard to the 1st respondent was filed on 7/2/2005 and the other on the 3rd respondents objection and other questions was filed on 5/10/2004. The 2 respondents filed no brief of argument nor appeared before this court at the hearing even though served all the processes. In short, it has not showed any interest in these proceedings. The 3rd respondent preliminary objection principally is that all the grounds of appeal encompassed in the instant Notice of Appeal are grounds of fact or at best, grounds of mixed law and fact; and characteristically that the grounds have been couched in a manner suggesting they are grounds of law. It is also the contention of the 3rd respondent that all the four grounds of appeal have been so couched as a collateral attempt to dislodge the concurrent findings of fact by the two lower courts. PAGE| 6 Taking these grounds of appeal seriatim, the 3rd respondent has argued as follows: On ground 1 that particular (c) refers to undisputed evidence in the matter. It is submitted that this ground cannot be gone into without a re-evaluation of the concurrent findings of fact and that paragraph (f) of the same ground has distorted the evidence accepted by the court, and so, will require that the facts have to be gone into all over again. The ground has therefore raised questions of mixed law and fact requiring leave of court. On ground 2: this ground it is submitted has attacked the court’s finding of fact that there was no contract and that the offer was made to a different party not to the plaintiff and like ground 1 will require the court delving into questions of facts of this matter. On ground 3: it is contended that particular (a) is seeking an evaluation of Exhibit 32 while particular (b) is challenging the finding of fact that there was a pre-condition to the contract and that particular (c) has alleged an agreement denied by the defendant. In respect of each of these particulars, it is submitted that issues of fact have been raised. On ground 4: which has attacked the award of damages; it is contended by the appellant that there are no credible evidence to support the award and as submitted by the 3rd respondent for this court to hold that the plaintiffs evidence is not credible raises a question of fact. Finally, it is submitted, the 4 grounds of appeal, having at best raised questions of mixed law and fact, that leave of the court below or this court is required to render them competent grounds of appeal, before this court; and not having sought and obtained leave, the appeal is incompetent and should be struck out. I think I should firstly, dispose of this objection one way or the other to pave the way to go into the substantive matter and so, I go ahead to state the response of the appellant to the preliminary objection. This is more so as the whole essence of preliminary objection is to foreclose hearing the appeal and PAGE| 7 like questions of jurisdiction it is always best to take it first as it could result in saving valuable time. See Okafor v. Nwude (1999) 7 SC (Pt.1) 106. The appellant has raised a pertinent point of whether the preliminary, objection is not improperly constituted vis-à-vis the provisions of Order 2 Rule 9 of the Supreme Court Rules and therefore has urged that it be disregarded. I think this objection is diversionary as the matter is competent. Alternatively, it is submitted as follows: On ground 1: that is, on particular (c), it has complained that erroneous conclusions have been deduced from undisputed facts and that any complaints of wrong conclusions from undisputed facts is a matter of law, even then, in the instant matter that the totality of the ground has posed a challenge to the misapplication of the law to the undisputed facts, which necessarily is a ground of law. See A.C.B. Plc. v. Obmiami Brick & Stone Ltd (1993) 5 NWLR (Pt.294) 399 and Attorney General Kwara State v. Olawale (1993) 1 NWLR (Pt. 272) 649 and Arjay Ltd. v. A.M.S. Ltd (2003) 7 NWLR (Pt.820) 577 at 600-601 paras. F-A. On Ground 2: i.e. has complained of misapplication of the law on facts in that there are rudiments of contract i.e. offer, acceptance and consideration founded on the undisputed facts yet the court found that there was no contract; it also misdirected itself on whether there must be a formal sale agreement or not. These questions, it is submitted do not call for evaluation of facts. On Ground 3: the complaint is that the court has taken into account wrong criteria in reaching its conclusion not in conformity with the guidelines as per the case of Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718 at 744-745 paras, C-D. The ground it is submitted is one of law. On Ground 4: the complaint is against the quantum of damages awarded by the court. It is argued that the award of N100,000.00 general damages is a matter of discretion, not based on any known principles of law; besides as there is no admissible evidence to support the award, the award being illegal is an issue of law. PAGE| 8 In conclusion, it is contended that the 4 grounds of appeal are questions of law. As to the matter of want of Governor’s consent raised in the said reply brief, I shall return to it later in dealing with the substantive appeal. To grapple with the questions raised by the preliminary objection one must go into the grounds of appeal filed in this matter, and set them forth as follows: “(1) The Court below erred in law in affirming the trial court’s decision that there was no complete agreement of sale of the disputed property to the appellant and thereby came to a wrong decision.   PARTICULARS (a) It is settled law that an immediately binding contract will result if the parties have come to an agreement on all terms which they consider necessary to agree upon. (b) The agreement of the sale of property was between the parties thereto namely, the appellant and the 1st respondent. (c) A binding and conclusive agreement of sale of the said property by the 1st respondent to the appeal had, on the undisputed evidence, been concluded latest by July 23, 1985. (d) The equitable charge of N500,000.00 which the 2nd respondent claimed over the said property does not in law detract or derogate from the concluded, independent agreement of sale between the appellant and the 1st respondent. (e) It is proper in law for the 1st respondent validly to dispose of its interest in the property to the appellant, the equitable charge notwithstanding. (f) It is undisputed that the appellant had paid the entire purchase price of the said property less the balance of N500,000.00 and was put in physical possession by 1st respondent and carried out extensive renovation thereon with the 1st respondent’s knowledge and agreement. (2) The Court below misdirected itself in law by holding that:  ‘…… property was offered to INCAR Nigeria Limited by the Board of the 1st respondent certainly not to the appellant as claimed by him in his evidence. When it was intended to sell the agreement, Exhibit 47 was prepared but INCAR Nigeria Limited failed to endorse it. PAGE| 9 Throughout the proceedings, the appellant failed to tender any sale agreement of the property to him. He only tendered documents to show that he was negotiating to purchase the property…. In my respectful view, the fact that the appellant was put in possession of the property did not validate the sale. He certainly knew that until he paid the balance of N500,000.00 to the 2nd respondent who had the title deeds, he could not have a valid transaction of the property.’and thereby came to an erroneous decision in this case.   PARTICULARS (a) The identity of the purchaser of the said property was not made an issue on the pleadings. (b) The Failure to tender any sale agreement by the appellant is irrelevant as the sale of the said property by the 1st respondent to the appellant was not in dispute in the proceedings. (c) The concluded contract of sale between the appellant and the 1st respondent is different and independent in law from the 2nd respondent’s undertaking to the appellant to release the title documents of the said progeny to him on receipt of the sum of N500,000.00 due to the 1st respondent representing the balance for the purchase price of the said property. (d) The validity or otherwise of the agreement of sale of the said property between the 1st respondent and the appellant was not predicted on the payment of the said N500,000.00 to the 2nd respondent. (3) The court below misdirected itself in law by holding that:   ‘For example, Exh.32 which was addressed to the appellant by the 2nd respondent made it clear that the 2nd respondent undertook to release to him the title documents to the property on payment to it of the sum of N500,000.00. That was certainly a precondition to the finalisation of the agreement of sale, notwithstanding the fact that the appellant had already made part payment. I have therefore come to the firm conclusion that there was no complete agreement of sale of the disputed property proved before the trial court……’ and thereby came to a wrong decision in the matter PAGE| 10   PARTICULARS (a) Exh.32, by the 2nd respondent is extraneous in law to the construction of the validity or otherwise of the agreement of sale between the appellant and the 1st respondent. (b) There was absolutely no pre-condition to the finalisation of the agreement of the sale, of the said property between the appellant and the 1st respondent. (c) The validity of the sale agreement between the appellant and the 1st respondent was neither challenged not put into question by the 2nd respondent. (4) The court below erred in law by affirming the award of N100,000.00 as general damages to the 2nd respondent against the appellant and thereby came to an erroneous decision.   PARTICULARS (a) There was no admissible or credible evidence in law to support the said award of N100,000.00 as general damages. (b) The said award of general damages was not based on any principles known to the law. (c) Quantifiable items of claim cannot in law be lumped together under general damages and they must be specifically proved and not assumed. (d) The 2nd respondent did not make out a case for the said award of general damages as required by law. (e) In law, it is not for the, court to make out a case for a party. (f) Further Grounds of appeal will be added on the receipt of the Record of Appeal and the certified true copy of the judgment.” The provision of section 233 of the 1999 Constitution is directly in point particularly on the backdrop of the objection taken here. Section 233(2) and (3) of the 1999 Constitution Covers questions of Rights of Appeal (i.e. as of Right or by leave) to this Court from the Court below and it says and I quote: “233(1) The Supreme Court shall have jurisdiction to the exclusion of any other court of law in Nigeria to hear and determine appeals from the Court of Appeal. PAGE| 11 (2) An appeal shall be from decisions of the Court of Appeal to the Supreme Court as of right in the following codes:- (a) –    not applicable (b) –    not applicable (c) –    not applicable (d) –    not applicable (e) –    not applicable (f) –    not applicable (3)  Subject to the provision of subsection 2 of this section an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court.”   [For emphasis] Appeals to this court by leave which otherwise means permission, relate to matters of facts or mixed law and fact for which leave of the court below or this court must be obtained as a matter of condition precedent: see Nalsa & Team Associates v. N.N.RC. (1991) 8 NWLR (Pt.212) 652 SC. This court has the responsibility to ensure that the grounds of appeal in respect of the matters before it fall within its constitutional competence. In this regard, therefore, a ground of appeal is not let off the hook simply because it is tagged an error in law. This court must be satisfied it is so. See Ojemen & 4 Ors v. Momodu II. (1983) 3SC 771. The consequence for not seeking leave where a ground of appeal is of mixed law and fact is fatal to the ground. However, one ground of appeal on law in a Notice of Appeal, I must observe, is capable of sustaining an appeal but not otherwise in which case the Notice of Appeal as well as the Grounds of Appeal is incompetent and liable to be struck out. To determine whether a ground of appeal, as in this matter, is one of law or mixed law and fact or both is not a straight-forward matter as it stretches the ability of the court to its limits. However, I have to go on to sieve through the instant 4 grounds of appeal and their particulars as raised in the instant Notice of Appeal guided by the guidelines as enunciated in the case of Nwadike v. Ibekwe (supra), to sort out whether all or any of the 4 grounds of appeal are questions of law. This court in Nwadike v. Ibekwe laid down the general propositions to guide in this exercise and they are as follows: PAGE| 12 “(1) It is an error in law if the adjudicating tribunal, took into account some wrong criteria in reaching its conclusion or applied some wrong standard of proof or, if although applying the correct criteria, it gave wrong weight to one or more of the relevant factors; see O’Kelly v. Trusthouse Forte Plc (1983)3 All E.R. at p. 468 . (2) Several issues that can be raised on legal interpretation of deeds, documents; terms of art, words or phrases, and inference drawn therefrom are grounds of law; see Ogbechie v. Onochie (supra) at pp.419-492 . (3) Where a ground deals merely with a matter of inference, even if it be an inference of fact, a ground framed on it is a ground of law; provided it is limited to admitted or proved and accepted facts; see Edwards v. Bairstow (supra) p.55; H.L. for, for many years, it has been recognised that inferences to be drawn from a set of proved or undisputed facts, as distinct from primary facts, are matters upon which an appellate court is as competent as the Court of trial; see Benmax v. Austin Motor Co. Ltd (1945) All E.R. 326 at 327. (4) Where a tribunal states the law on a point wrongly, it commits an. error in law. (5) …. Where the complaint is that there was no evidence or no admissible evidence upon which a finding or decision was based. This is regarded as a ground of law, on the premises that in a jury trial there would have been no evidence to go to the jury,” Using the foregoing guidelines amongst others have helped the courts to resolve questions in this regard. On Ground 1: I am more than, certain that particulars (c) and (f) are clear in questioning the conclusions reached on the undisputed evidence before the court, below and not on the correctness of disputed facts which otherwise would attract a re-evaluation of evidence; some of the undisputed facts are that the appellant has taken possession of the property, carried out extensive repairs and renovations of the property, put in rent paying tenants and has paid the purchase price less the balance of N500,000.00. The ground has challenged reaching of wrong conclusions or inference from undisputed facts; thus, it is challenging misapplication of the law to undisputed facts as against disputed facts. The lower court it is complained has misunderstood the import of the admitted facts in this regard. See Ogbechie v. Onochie (1980) 2 NWLR (Pt. 23) 484. The question in this ground is one of law: see A.C.B Plc v. Obmiami Brick & Stone Ltd (supra), Attorney General Kwara State v. Olawale (supra) and Arjay Ltd v. A.M.S. Ltd (supra). PAGE| 13 On Ground 2: The whole gamut of ground 2 and its particulars – come to a misdirection in law; the court is misled to hold that there is no contract; the ground and its particulars have challenged that conclusion as resulting from misunderstanding of the rudiments of contract consisting of offer, acceptance and consideration; and given as a common cause between the parties; they otherwise constitute a valid agreement. See Ogbecie v. Onochie (1980) 2 NWLR (Pt.23) 484 and also whether in a contract of sale there must be a formal sale agreement or not. Undoubtedly, this ground raises questions of pure law and involves no evaluation of facts. On Ground 3: This ground challenges the taking into account wrongfully an extraneous factor, in this instance, the undertaking to pay N500,000.00 by the appellant given to the 2nd defendant, in reaching the conclusion that there is no complete agreement of sale ab initio between the appellant and the 1st respondent. The ground read on the backdrop of its particulars is contending that there is a complete agreement of sale of the property to the appellant without taking into account the collateral matters. This does not call for a re-evaluation of fact as it is attacking the conclusion so reached. In the light of the foregoing, I refer and rely on one of the five classes of identifying a ground of law as per Nwadike v. Ibekwe Supra and I quote: “(1)  It is an error in law if the adjudicating tribunal took into account some wrong criteria in reaching its conclusion or applied some wrong standard of proof or if although applying the correct criteria, it gave wrong weight to one or more of the relevant factors. See O’ Kelly v. Trusthouse Forte Plc (1983) 3 at 468 .” PAGE| 14 Ground 3 considered upon the above principle is unquestionably a ground of law as it is complaining of introducing extraneous element into the agreement of sale reached between the parties. On Ground 4: The particulars of ground 4, particularly (a) and (d) belie the conclusion that ground 4 is anything but an error in law as the said two particulars of error (a) and (d) have showed that the real question is against evaluation, assessment, findings of facts as to the award of 100.000.00 as general damages. These particulars are there to explain and support the core issue in ground 4 and these particulars being part and parcel of ground 4 must stand or fall with ground 4. See Mba v. Agu (1999) 9 SC 13. Undeniably, this ground has not raised a question of law. Clearly the ground raises issue of mixed law and fact as it involves re-evaluation of facts and so requires leave of the Court below or this court. And not having sought and obtained such leave, the ground is declared incompetent and it is struck out. The consequence of having struck out ground 4 is that the issue for determination distilled from it automatically becomes incompetent as having no basis. In this regard it must be ignored. See Omo v. Delta State (2000) 7 SC (Pt.11) 1. In the absence of the appellant tying the 4 grounds of appeal to their respective issues for determination, I am in no doubt that issue 3 in the appellant’s brief of argument is completely founded on ground 4 as its general discussion in the appellant’s brief bears out. This conclusion is supplemented by the appellant’s submission under sub-head (g) in the said brief under issue 3 at p. 14 of the record, last four sentences of that page; it reads thus: “The award of damages, has been based on erroneous application of the law and misapplication of the facts.” See Evans v. Bartlans (1937) AC 473 & Oduro v. Davis (1952) 14 WACA 46, Ediaghenya v. Dumez (Nig) Ltd (1986) 3 NWLR 753. Need one any other proof that ground 4 is truly one of facts? No. Therefore, issue 3 having no basis is hereby discountenanced. PAGE| 15 In the result, I find no substance in the preliminary objection to grounds 1, 2 & 3; it is hereby overruled but it is sustained with regard to ground 4, which is hereby struck out. I have to come to the appeal proper. The facts of this matter as I have found out are well set-out in the judgment of the court below and I adopt the facts as so set-out thereat and replicate them in this judgment as from pp.312 to 313 of the record as follows: “The 1st respondent owned a landed property known as Nos.157/159 Club Road, Kano which it mortgaged to the 2nd respondent by depositing the certificate of occupancy with it in consideration for a loan granted to the 1st respondent. The 1st respondent was in financial difficulty and decided to sell the property to INCAR Nigeria Ltd as per Board resolution, of the Company in Exh.30 INCAR Nigeria Ltd declined the offer to buy the property and the appellant then entered into negotiation to buy the property for himself for the sum of N2.3 million to be paid in instalments sometime in 1983. He continued to pay the instalments until he had paid a total of N1.8 million leaving a balance of N500,000.00. Sometime in 1984 the appellant was put in possession of the property by officials of the 1st respondent. He improved the property and let it out to tenants and began to collect rents. Meantime, he had not paid the balance of N500,000.00.  In July 1985 the appellant and the 2nd respondent agreed that if the appellant paid the balance of 500,000.00 to the 2nd respondent it would release the documents of title to the appellant as per Exh.32. The appellant was unable to make the payment throughout the year 1985 and the 2nd respondent then wrote Exh. 49 cancelling the whole transaction on the ground that it could no longer wait indefinitely for the appellant to pay up. Following this the appellant tried in vain to pay the money in 1986 but the 2nd respondent refused to accept the payment. The appellant then went to court to enforce specific performance of the contract of sale. The respondents counter-claimed as set out earlier in this judgment and the 2nd respondent called a witness to testify that it had lost a lot of money by the failure of the appellant to pay to it the sum of N500,000.00. There 1st respondent also requested the court to order the appellant to account for the rents collected by him. The learned trial judge dismissed appell

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