NGEREM v. CROWN REALTIES PLC (2020)

NGEREM v. CROWN REALTIES PLC

(2020)LCN/14407(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, July 17, 2020

CA/L/807/2017

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

DAN NGEREM APPELANT(S)

And

CROWN REALTIES PLC RESPONDENT(S)

RATIO

FACTOR TO E ESTABLISHED FOR AN APPELLANT TO BE ENTITLED TO DAMAGES FOR BREACH OF CONTRACT

In order for the Appellant to be entitled to damages for breach of contract, it has to be established that the Respondent was in breach of the contract and that in consequence the Appellant chose to be released from further obligations under the contract. In BEST (NIGERIA) LTD vs. BLACKWOOD HODGE (NIGERIA) LTD (2011) LPELR (776) 1 at 23, Fabiyi, JSC stated:
“Where a party to a contract is in breach of a material term of same, the breach gives the aggrieved party a lee-way or an excuse for non-performance of its own side of the bargain. Such a party is at liberty to treat the contract as extinguished or at an end.”
See alsoYADIS (NIG) LTD vs. G. N. I. C. LTD (2007) 14 NWLR (PT 1055) 584 at 609, PAN BISBILDER (NIGERIA) LTD vs. FIRST BANK (2000) LPELR (2900) 1 at 31-32 and AHMED vs. CBN (2012) LPELR (9341) 1 at 12-13. PER OGAKWU, J.C.A.

CONSEQUENCES AND EFFECTS OF A BREACH OF CONTRACT

In DANTATA vs. MOHAMMED (2000) LPELR (925) 1 at 17, Ayoola, JSC stated the legal position as to the consequence and effect of a breach of contract in the following words:
“When there is a serious breach of contract, one of the consequences is that the innocent party who has elected to rescind de futuro the contract is released from further obligations under the contract. The law is put succinctly thus in Halsbury’s (op. cit) para. 1003, as follows:
‘If the innocent party (B) can and does elect to rescind the contract de futuro following a breach by the other party (A), all the primary obligations of the parties under the contract which have not yet been performed are terminated…Thus the innocent party is released from further liability to perform; and, for the “primary” obligation of the defaulting party to perform, there is substituted by operation of law a “secondary” obligation to pay damages from the loss resulting from failure to perform the primary obligation.” PER OGAKWU, J.C.A.

WHETHER OR NOT THE APPELLATE COURT CAN RENDER THE DUTY OMITTED TO BE DONE OR WRONGLY DONE BY THE TRIAL COURT

It is trite law that where a trial Court fails to properly appraise the evidence, an Appellate Court will be in a position to render the duty omitted to be done or which was wrongly done by the trial Court. To fail to do so will be an abdication of responsibility: IMAH vs. OKOGBE (1993) 9 NWLR (PT. 316) 159, ONWUKA vs. EDIALA (1989) 1 NWLR (PT. 96) 182, AKINTOLA vs. BALOGUN (2000) 1 NWLR (PT. 642) 532, CHEDI vs. A-G FEDERATION (2006) LPELR (11806) 1 at 15 and LAGGA vs. SARHUNA (2008) LPELR (1740) 1 at 23-24. This will now captivate our attention! PER OGAKWU, J.C.A.

PRE-JUDGEMENT INTEREST

Pre-judgment interest must be claimed and evidence adduced to prove it, failing which it will not be awarded by a Court. The award of pre-judgment interest can be made where it is contemplated in an agreement between the parties, under a mercantile custom and under the principle of equity such as breach of fiduciary relationship. See EKWUNIFE vs. WAYNE (WA) LTD (1989) 5 NWLR (PT. 122) 422 at 445, IDAKULA vs. RICHARDS (2001) 1 NWLR (PT. 693) 111 at 122, 124 and 124-125 and UNITY BANK PLC vs. RAYBAM ENGINEERING LTD (2017) LPELR (41622) 1 at 22-23.
It is however valid law that a Court can still grant pre-judgment interest on a monetary or liquidated sum awarded to a successful party, even in a situation where such a party did not plead or adduce evidence in proof of such claim. Such interest, like in this matter, naturally accrues from the failure or refusal to pay the amount involved over a long period of time, thereby depriving a party from the use of and/or enjoyment of the sum involved which is the fruit of his judgment. See NPA vs. AMINU IBRAHIM & CO. (2018) LPELR (44464) 1 at 39-40, NIGERIAN GENERAL SUPERINTENDENT CO. LTD vs. NPA (supra) at 748, ADEYEMI vs. LAN & BAKER NIG LTD (supra) at 48, STABILINI VISINONI LTD vs. METALUM LTD (2007) LPELR (8661) 1 at 18-19 and CROWN FLOUR MILLS LTD vs. OLOKUN (2007) LPELR (8534) 1 at 37-38. PER OGAKWU, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): EXORDIUM The provenance of this appeal is in the contract between the Appellant and the Respondent for the sale, to the Appellant, of six housing units in the Respondent’s Crown Estate, Lekki Peninsula. Pursuant to the contract, the Appellant made an initial deposit of the purchase price on the six houses. By the contract, the Completion/Delivery period for the houses was nine months from the date of the initial deposit. The balance of the purchase price was to be paid upon completion of the houses. The Respondent did not meet the completion date for the delivery of the houses. It was about six months after the due date that the housing units became ready. The Respondent wrote to the Appellant, informing him that the houses had been completed and demanding for the balance of the purchase price.

The Appellant made a further deposit on the outstanding purchase price and made a proposal for payment of the outstanding amount in instalments. The Respondent applied the additional payment made to full payment for one of the six houses and further payment in respect of a second

house. The Appellant later made a further payment by instalment but the Respondent returned the cheque on the ground that the Appellant was in breach of the payment terms of the contract which did not stipulate payment by instalments and it later sold the remaining five houses to other interested buyers.

The Appellant, contending that the Respondent was in breach of the contract, instituted an action before the High Court of Lagos State in SUIT NO.LD/1703/2009: DAN NGEREM vs. CROWN REALTIES PLC. By his Amended Statement of Claim, the Appellant claimed the following reliefs:
(a) A DECLARATION that the Defendant was in breach of terms of contract dated 10th April and 16th May, 2008, in respect of Allocation of 6 various housing units named and described as “Libra” type Nos. 7A, 8A, 3B AND 8B situate at Crown Estate, Lekki Pennisula, Lagos as regard agreed completion date of the housing units and as such cannot unilaterally revoke the Claimant’s allocation contrary to the terms of the contract of allocation aforesaid and indeed acceptance of the Claimant’s payment of 30th July, 2009.
(b) A DECLARATION that purported

unilateral revocation of the Claimant’s allocation of the housing units known as Libra Type on plots 3B, 7A, 8A and 8B, situate at Crown Estate, Lekki Pennisula, Lagos, Block 15 contained in the defendant’s letter dated 18th September, and 30th September, 2009, notwithstanding 6 months delay in completion of the housing estate and without agreed variation thereof and after receipt of the Claimant’s payment vide his letter dated 30th July, 2009, which spell out the payment schedule of outstanding balance is illegal, unlawful and not in accordance with the terms of contract of allocation aforesaid.
(c) AN ORDER of specific performance of the contract of 10th April and 16th May, 2008, aforesaid in which the Defendant has derived financial benefit by accepting payment of the outstanding balance which was belatedly returned by the Defendant after accepting the initial payment forwarded to it on 30th July, 2009 and caused the Libra House Type known as Block 15, Plot 3B, 7A, 8A and 8B situate and being at Crown Estate, Lekki Pennisula, Lagos to be transferred and handed over to the Claimant forthwith.
(d) AN ORDER of injunction restraining

the Defendant whether by itself, its agents, servants or whosoever from selling or transferring the ownership in the Housing Units known as Block 15, Plot 3B, 7A, 8A and 8B situate and being at Crown Estate, Lekki Pennisula, Lagos to any person other than the Claimant who had made substantial financial commitment to the Defendant and in view of the Defendant default and breach of the terms of the contract dated 10th April and 16th May, 2008.
(e) A DECLARATION that any purported sale or sale of Block 15, Libra Type Nos. 3B, 7A, 8A and 8B Crown Estate, Lekki Pennisula, Lagos, is null and void and of no effect.
(f) AN ORDER setting aside any sale or transfer or assignment of Libra House Nos. 3B, 7A, 8A AND 8B, Block 15 Crown Estate, Lekki Pennisula, Lagos
(g) Cost of this suit.
In the alternative, the Claimant claims against Defendant:-
h) AN ORDER for payment of N12,000,000.00 (Twelve Million Naira) on each unit of any of Houses 3B, 7A, 8A and 8B sold by the Defendant representing the difference in value appropriated by the Defendant in the sale of the Claimant’s properties.
i) AN ORDER for refund of the sum of N44, 911,914.50

(Forty Four Million, Nine Hundred and Eleven Thousand, Nine Hundred and Fourteen Naira and Fifty Kobo) held by the Defendant since 6th August, 2009 and interest on the said sum at 21% per annum from 6th August, 2009 until date of judgment and thereafter and at 10% per annum until full liquidation.
j) AN ORDER for payment of interest at the prevailing bank rate 21% per annum on any sum due and payable in respect of sold houses.
k) N20, 000, 000.00 (Twenty Million Naira) General Damages for breach of contract.

The parties filed and exchanged pleadings and the matter went through a plenary trial at which viva voce and documentary evidence was adduced. The lower Court in its judgment dismissed the Appellant’s suit in its entirety. The Appellant was dissatisfied with part of the judgment of the lower Court and appealed against the same. The judgment of the lower Court which was delivered on 1st February, 2017 is at pages 364-374 of the Records, while the extant Notice of Appeal on which the appeal was argued was filed on 28th April, 2017 and it is at pages 378-380 of the Records. In the said Notice of Appeal the part of the decision of the lower

Court which the Appellant is dissatisfied with and on the basis of which he ventilated the appeal is: “The refusal to award damages for breach of contract and dismissal of the appellant’s alternative claims for refund of excess money paid to the respondent plus interest and damages.”

Allegiant to the Rules of Court, the Record of Appeal having been transmitted on 22nd June, 2017, the parties filed and exchanged briefs of argument. The Appellant’s Brief was filed on 30th June, 2017. The Appellant also filed a Reply Brief on 11th May, 2018. The Respondent’s Brief was filed 31st January, 2018. The Respondent’s Brief and the Appellant’s Reply Brief were both deemed as properly filed on 24th June, 2020, when the appeal was heard. At the hearing of the appeal, A. M. Makinde, Esq., SAN (with Ms. E. O. Afolabi), learned Senior Counsel for the Appellant and Abiola Adegoke, Esq., of counsel for the Respondent, urged the Court to uphold their respective submissions in the determination of the appeal.

The Appellant formulated three issues for determination, namely:
“1. Whether the Learned trial judge erred in law

when he held that there were no clear pleading and evidence in support of the appellant’s alternative claim for refund and interest particularly where he held as follows: ‘It is averred both in the pleadings and the evidence in support of the defendant’s case that part of the sum of N34,000,000.00 (Thirty Four Million Naira) was applied towards paying in full for one of the houses Libra House 3A Block 15 in order to enable the claimant transfer the house legally to one Jane Ejeh while the remainder was applied to further payment of Libra 3B Block 15?
2. Whether the Learned trial judge misdirected himself in law when he held that the N34,000,000.00 (Thirty Four Million Naira) paid by the appellant to the respondent was for the further payment of Libra House Block 15 House 3B which was never allocated to the appellant?
3. Whether the Learned trial judge erred in law when he held that the appellant is not entitled to damages for breach of contract or any claim at all except perhaps a refund of his deposit on the ground that appellant committed a breach of contract by failing to pay on the completion date when no new completion

date was fixed by the parties?”

The Respondent equally distilled three issues for determination, as follows:
“1. Whether the learned trial judge was right when he dismissed the Appellant’s alternative claims for the sum of N44, 911, 914.50 on the ground of lack of clear pleading and evidence in support of same.
2. Whether the learned trial judge was right when he held on the pleadings and evidence of the parties before him that the sum of N34,000,000.00 paid by the Appellant was applied by the Defendant towards the payment and transfer of the house Libra House 3A Block 15 to one June Ejeh, a transferee of the Appellant.
3. Whether the learned trial judge was right when he dismissed the Appellants claim for damages for breach of contract.”

The formulation of issues by the parties are six and one half dozen of the other. I will therefore review the submissions of learned counsel on the issues they crafted and then resolve the appeal en bloc.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that where there is a main claim and an alternative claim, then if the main claim fails, the

alternative claim proved should be granted vide NNPC vs. KLIFCO NIG LTD (2011) 4 SC PT. 2 108. It was maintained that the Appellant sufficiently pleaded facts in support of the alternative claim and adduced evidence in support thereof. Paragraphs 3, 6, 11, 12, 31-34 of the Amended Statement of Claim and the witness statement on oath of the Appellant, as sole witness, were referred to. It was asserted that the Appellant paid the Respondent the total sum of N73.08 Million but that only one house valued at N28.17 Million was eventually sold to him and that the Respondent still withheld the difference of N44.9 Million.

The Appellant opined that the pleaded facts support the refund of the sum of N44.9 Million and that it was backed up by the evidence adduced. The Respondent was said to have joined issues with the Appellant but that it did not deny paragraphs 31 and 32 of the Amended Statement of Claim on the payment of the total sum of N73.08 Million by the Appellant and the value of the house sold to the Appellant being N28.17 Million. The facts admitted, it was argued, did not need further proof. The cases of UREDI vs. DADA (1988) 1 NWLR (PT 69) 237,

LEWIS PEAT NRI LTD vs. AKHIMIEN (1976) 7 SC 157 among other cases were referred to.

It was posited that parties are bound by the pleadings and that facts specifically pleaded, but not denied, were deemed as admitted; especially where there is documentary evidence in support of the pleaded facts. The cases of GEORGE vs. DOMINION FLOUR MILLS (1963) 1 ALL NLR 71, EMEGOKWUE vs. OKADIGBO (1973) 4 SC 113, ADIMORA vs. AJUFO (1988) 3 NWLR (PT. 80) 1 and GEORGE vs. UBA (1972) 8-9 SC 264 were relied upon. In concluding his arguments on issue number one, the Appellant submitted that the lower Court was wrong to hold that the Appellant did not clearly plead or lead evidence to support the claim for refund and that the dismissal of the claim occasioned a miscarriage of justice. It was contended that being a commercial transaction, the Respondent was liable to pay interest on the funds of the Appellant which it held over. The cases of NIG. GEN SUPT. CO. LTD vs. NPA (1990) 1 NWLR PT. 129 [no page stated] andADEYEMI vs. LAN BAKER (2000) 7 NWLR PT. 663 33 were relied upon.

The apercu of the Appellant’s submission on the second issue for determination is that the lower Court

misapprehended and misunderstood the purport of the Respondent’s pleading in paragraph 19 of the Amended Statement of Defence because House 3B therein was sold by the Respondent, but not to the Appellant as erroneously held by the lower Court when it held that the additional N34million paid by the Appellant was applied for further payment on House 3B. Documentary evidence was stated to be the best evidence and that the documentary evidence established that the Appellant paid the total sum of N73.08million which was far in excess of N28.17million, being the cost of the only house eventually sold by the Respondent to the Appellant. The Appellant, it was asserted, was entitled to the refund of the difference of N44.9million. The cases of A-G BENDEL vs. UBA (1986) 4 NWLR PT. 37 547, ADEYEMI vs. LAN BAKER (supra) and AEROFLOT vs. UBA (1986) 3 NWLR PT. 27 188 were cited in support.

The Appellant further argued that the Respondent pleaded that the Appellant was entitled to the refund of the lesser sum of N16.9million and therefore the decision of the lower Court dismissing the Appellant’s alternative claim was perverse and occasioned a miscarriage of

justice. The case of OLATUNJI vs. ADISA (1995) 2 SCNJ 90 was called in aid.

The Appellant’s submission on the third issue is that the agreed completion date for the houses was January 2009, but that the Respondent completed the houses in June 2009. The pleadings were said to be ad idem on the agreed completion date and needed no further proof vide AKPAN vs. UMOH (1999) 7 SC PT. 3 73 and ASAFA FOODS vs. ALRAINE (2002) FWLR PT. 125 756. It was opined that the finding of the lower Court that the Appellant was in breach of the contract by failing to pay the outstanding amount on the completion date was not supported by the pleadings or evidence as to any completion date other than January 2009. It was stated that a Court is to decide on the evidence adduced and that the Court is not to concoct or imagine evidence or make a case different from the case made out by the parties, especially when the pleadings are binding. The cases of THE STATE vs. AIBANGBEE (1988) 7 SC PT 1 96, AERMACCHI SPA vs. AIC LTD (1986) 2 NWLR PT. 23 443, NSIRIM vs. ONUMA CONST. CO (2001) FWLR PT. 44 405, OJO vs. FIXED ODDS LTD (2001) FWLR PT 42 93 among other cases were referred to.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The Appellant further submitted that the lower Court found at page 369 of the Records that the Respondent was in breach of contract; but wrongly denied the Appellant damages, holding that the Appellant had waived the right to damages. It was conclusively submitted that a wrongdoer cannot take advantage of his wrong vide ADEDEJI vs. OBAJIMI (2018) LPELR-44360 (SC) and that the Appellant was entitled to damages for the Respondent’s breach of the contract.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that the lower Court was right to dismiss the Appellant’s alternative claim for N44.9million because the Appellant did not prove the same. It was posited that the Appellant never pleaded that he was entitled to N44.9million or how he arrived at the figure, since it was a claim in the nature of special damages and the particulars of the same were not given. It was stated that it was not for the lower Court to speculate or embark on an arithmetic exercise in order to arrive at the amount claimed by the Appellant. The Appellant, it was asserted, was to discharge the burden of proof on him by relying on the strength of his

case and not on any perceived weakness in the Respondent’s case vide CAKASA (NIG) CO. LTD vs. AINA (2016) LPELR-42044 (CA), AKINYELE vs. AFRIBANK PLC (2005) LPELR-7468 (CA) or (2005) 17 NWLR (PT 955) 904 among other cases. It was maintained that in the absence of clear pleading, it was not for the lower Court to make up the case for the Appellant. The cases of DANKULA vs. SHAGAMU (2008) ALL FWLR (PT. 413) 1280 and MOBAR vs. ALI (2001) LPELR-6973 (CA) or (2002) 1 NWLR (PT 747) 95 were relied upon.

The quiddity of the Respondent’s submission on the second issue is that the lower Court was right to hold that on the state of the pleadings and evidence, the sum of N34million paid by the Appellant was applied by the Respondent towards the payment and transfer of House 3A to the Appellant’s successor-in-title, before the remaining balance was credited to the Appellant for House 3B. The evidence in that regard was said not to have been challenged by the Appellant, and that the lower Court never held that House 3B was transferred to the Appellant as the Appellant never fully paid for it. The Respondent maintained that no remedy could be given to

the Appellant because of his unclear pleading and absence of clear evidence. The cases of NIGERIAN WEST MINISTER DREDING & MARINE LTD vs. SMOOT (2011) LPELR-4619 (CA), SALISU vs. AMUSAN (2010) LPELR-9103 (CA) and OBASUYI vs. BUSINESS VENTURES LTD (2000) LPELR-2155 (SC) or (2000) 5 NWLR (PT 658) 668 were referred to.

Arguing the third issue, the Respondent submits that the finding of the lower Court was not that the Appellant was in breach of contract because he failed to pay on the agreed completion date of January 2009, but that the Appellant failed to pay when the houses were eventually completed. It was stated that when the Respondent failed to meet the agreed completion date of January 2009, the Appellant did not repudiate the contract on account of that, but treated the contract as subsisting, thereby waiving the breach by the Respondent. But that when the Appellant did not pay the outstanding balance when the houses were eventually completed, the Appellant breached the contract.

It was posited that a party to a contract is entitled to terminate the contract where there is a breach and that since the Appellant failed to pay the outstanding

balance when the houses were completed, the Respondent exercised its right and terminated the contract. It was maintained that the lower Court was right when it held that the Appellant waived the breach committed by the Respondent by continuing to treat the contract as subsisting; but subsequently breached the contract when he failed to pay when the houses were complete. It was further opined that the Appellant did not appeal against this specific finding and therefore cannot complain.

APPELLANT’S REPLY ON LAW
The conspectus of the Appellant’s contention in the Reply Brief is that his claim is not in the nature of special damages; the Black’s Law Dictionary, 7th Edition was referred to on the meaning of special damages. The Appellant iterated his submissions on admitted facts not requiring proof and Section 74 of the Evidence Act and the cases of BUNGE vs. GOV. RIVERS STATE (2006) 12 NWLR PT. 995, 573 and PIONEER PLASTIC vs. COMM. FOR CUSTOMS (1967) Ch. D 597 were referred to. The Appellant, it was contended, discharged the burden of proof as a result of Respondent’s admission in the pleadings and the testimony of the

Respondent’s sole witness at page 271 of the Records.

The Appellant opined that it is only in cases of declaration of title to land that a claimant is to succeed on the strength of his case and not on the weakness of the case of the opposite party and that the principle was inapplicable in the instant case. The cases of DANJUMA vs. ECHENDU (2010) 18 NWLR PT. 1224 253, OFEM vs. EJUKWA (1994) 2 NWLR PT. 326 303 and KAIYAOJA vs. EGUNLA (1974) 12 SC 55 were relied upon. It was asserted that parties and the Court are bound by the pleadings and that the lower Court was wrong not to have entered judgment for the Appellant for the sum of N44.9Million vide OREDOYIN vs. AROWOLO (1989) 4 NWLR PT. 114 1722 and ABAYE vs. OFILI (1986) 1 NWLR PT. 15 134.

The Appellant doubled down on his submission that House 3B was never transferred to him, and stated that the lower Court proceeded on the assumption that Houses 3A and 3B were transferred to him and made the erroneous finding that the payment received from the Appellant was applied to Houses 3A and 3B. It was restated that the Respondent transferred House 3B to someone else. The finding of the lower Court was

therefore said to be contrary to the pleadings and evidence, which pleadings bind the Court and the parties and that any findings or judgment that are not as pleaded are perverse.

The Appellant conclusively submitted that an innocent party is not ordinarily bound to treat a contract as discharged, but may elect to treat the contract as continuing or that the breach has discharged his liability; but that where he treats the contract as continuing, he can still sue for any damages sustained as a result of the breach. The case of UDOM vs. E. MICHELETTI & SONS (1997) 8 NWLR PT. 516 187 was relied upon. The breach by the Respondent, and the Appellant’s entitlement to damages in respect thereof, it was maintained, could not be excused by waiver as contended by the Respondent. It was finally submitted that the admission by the Respondent that N43.5million was outstanding to the credit of the Appellant with the Respondent, was an admission against interest which required no further proof. The case ofKAMALU vs. UMUNNA (1997) 5 NWLR PT. 505 321 was called in aid.

RESOLUTION
In the exordium, I redacted the salient facts of this matter in some

detail. It is against the backdrop of the said facts that the Appellant in the main reliefs before the lower Court challenged the revocation of the contract by the Respondent on the ground that the Appellant had breached the same. The Appellant sought specific performance of the contract and reliefs ancillary thereto. The main reliefs were dismissed and the Appellant has not appealed against that part of the decision of the lower Court. The Appellant’s dissatisfaction is with the decision of the lower Court as it relates to the alternative claim of the Appellant in respect of the claims for damages for breach of contract and claim for refund of the excess amount paid by the Appellant to the Respondent and interest on the said amount. It is therefore in the manner circumscribed by the part of the decision complained about that the resolution of this appeal will be approached.

The Appellant claimed the sum of N20Million as damages for breach of contract. In order for the Appellant to be entitled to damages for breach of contract, it has to be established that the Respondent was in breach of the contract and that in consequence the Appellant chose to

be released from further obligations under the contract. In BEST (NIGERIA) LTD vs. BLACKWOOD HODGE (NIGERIA) LTD (2011) LPELR (776) 1 at 23, Fabiyi, JSC stated:
“Where a party to a contract is in breach of a material term of same, the breach gives the aggrieved party a lee-way or an excuse for non-performance of its own side of the bargain. Such a party is at liberty to treat the contract as extinguished or at an end.”
See alsoYADIS (NIG) LTD vs. G. N. I. C. LTD (2007) 14 NWLR (PT 1055) 584 at 609, PAN BISBILDER (NIGERIA) LTD vs. FIRST BANK (2000) LPELR (2900) 1 at 31-32 and AHMED vs. CBN (2012) LPELR (9341) 1 at 12-13.

From the facts of this matter, a material term of the contract between the parties was the nine month period for the completion of the houses by the Respondent. The Respondent breached this material term as a result of which it became open to the Appellant to treat the contract as extinguished or at an end. The lower Court found and held that the Respondent was in breach of the contract, but further held that the Appellant having in turn breached the contract by failing to pay upon the completion of the houses, he

was not entitled to damages for breach of contract. Hear the lower Court at page 373 of the Records:
“Contrary to the erroneous belief of the Claimant, the failure of the defendant to deliver the houses within the time-frame in the contract only entitles him to determine the contract and claim his deposit. He is not at liberty to waive it and thereafter plead it as having so altered the contract between the parties as to excuse his own failure to perform at a future date when he is to perform his own part of the contract. The claimant having breached the contract by failing to pay upon the completion of the houses (see Odusola V. Ricketts (1997) 7 NWLR Part 511page 6) is not entitled to damages for breach of contract or any claim at all except perhaps a refund of his deposit.”

The Appellant did not treat the contract as extinguished or at an end when the Respondent failed to complete and deliver the houses on the date stipulated in the contract. The Appellant condoned the breach by the Respondent and when about six months thereafter the Respondent completed the houses and requested the Appellant to pay as contracted, the Appellant treated

the contract as continuing and subsisting and as though there had been no breach by the Respondent and made a further deposit towards the outstanding payment for the houses. In DANTATA vs. MOHAMMED (2000) LPELR (925) 1 at 17, Ayoola, JSC stated the legal position as to the consequence and effect of a breach of contract in the following words:
“When there is a serious breach of contract, one of the consequences is that the innocent party who has elected to rescind de futuro the contract is released from further obligations under the contract. The law is put succinctly thus in Halsbury’s (op. cit) para. 1003, as follows:
‘If the innocent party (B) can and does elect to rescind the contract de futuro following a breach by the other party (A), all the primary obligations of the parties under the contract which have not yet been performed are terminated…Thus the innocent party is released from further liability to perform; and, for the “primary” obligation of the defaulting party to perform, there is substituted by operation of law a “secondary” obligation to pay damages from the loss resulting from failure to

perform the primary obligation.”

Practicalizing the above dictum to the diacritical circumstances of this matter, the Appellant upon the occurrence of the breach of contract by the Respondent did not rescind the contract in order to be discharged from his further obligation under the contract, id est, payment of the outstanding amount due when the houses were completed. Concomitantly, not having elected to rescind the contract, the primary obligation of the parties continued and the Respondent still had the fardel of completing the house, albeit belated. The Respondent ultimately discharged its primary obligation under the continuing and subsisting contract by completing the house about six months later. It seems to me in the circumstances, that it is only if the Appellant had rescinded the contract and the parties became discharged from their liabilities thereunder, that the “secondary” obligation by operation of law would be imposed on the Respondent to pay damages consequent upon its breach and failure to perform its primary obligation. But it did perform its primary obligation so the secondary obligation on the basis of which it

would have been liable to pay damages by operation of law did not arise.

The Appellant relies on the case of UDOM vs. E. MICHELETTI & SONS LTD (1997) LPELR (3310) 1 at 16-17 for the contention that even where the innocent party elects to treat the contract as subsisting consequent upon a breach, that he can still sue for damages for any loss sustained as a result of the breach. In the said case, Dr. Udom had contracted E. Michelletti & Sons to build some houses for him in Enugu within a stipulated time frame. On account of the intervening Nigerian Civil War, E. Michelletti & Sons could not keep up with the stipulated time. At the end of the civil war, Dr. Udom carried on with E. Michelletti & Sons in a manner showing that he had waived the non-compliance as to time. Later, in an action, by E. Michelletti & Sons, to recover the money it spent in building the houses, Dr. Udom contended that he had completed the houses by himself and also claimed loss of rent as damages for the non-completion of the houses on schedule. In refusing the claim, it was held that since Dr. Udom had kept the contract alive for the benefit of the parties,

notwithstanding the non-fulfilment of the completion date; that it was wrong for him to have gone into the buildings to commence work on his own without notice to E. Michelletti & Sons.

In the circumstances of this matter, the Appellant, having kept the contract alive by condoning the Respondent’s breach of not meeting the completion/delivery date, he then breached the contract when he failed to pay the outstanding amount when the houses were completed. So the ultimate consummation of the object of the contract could not be achieved as a result of the Appellant’s breach of the term as to payment, on the basis of which the Respondent rescinded the contract. So it was the non-performance by the Appellant of his part of the contract that eventually made the Respondent treat the contract as having been extinguished and at an end. In this context, the Appellant is not the innocent party, since the entire contractual relationship would have come to fruition (the Appellant having condoned the Respondent’s failure to meet the stipulated timelines) but for the Appellant’s breach of the payment terms. It is in this wise that the case of

ADEDEJI vs. OBAJIMI (supra) relied on by the Appellant, more appropriately applies against him. The Appellant is the wrongdoer and he cannot be had to take advantage of his wrong by claiming for damages allegedly resulting from a loss occurring from a breach he condoned and waived; which claim would not have arisen if he had not breached the contract. The lower Court in refusing the Appellant’s claim for damages reasoned along these lines when it found and held at page 373 of the Records that:
“The claimant having breached the contract by failing to pay upon the completion of the houses… is not entitled to damages for breach of contract…”

There is no basis to fault the reasoning of the lower Court in this regard. The contract between the parties stipulated a completion/delivery period of the houses. The Appellant was to pay the outstanding balance on the houses upon the completion/delivery of the houses. The Respondent did not meet the stipulated completion/delivery date. The Appellant ignored this breach and kept the contract alive by not extinguishing or ending the same in order to release himself from any further obligation

as it relates to payment of the outstanding balance. So the obligation of the Respondent to complete and deliver the houses remained extant, just as the obligation of the Appellant to pay the outstanding balance when the houses were completed and delivered, whenever that may be. The finding of the lower Court is that the Appellant’s failure to pay when he was informed that the houses had been completed amounted to a breach of contract, since the event on which the Appellant’s obligation would arise was completion of the houses which was no longer tied to any definite time frame.

The Appellant has challenged the decision of the lower Court dismissing the claim for the refund of the excess money he paid to the Respondent. In refusing the claim the lower Court reasoned and held as follows at pages 373-374 of the Records:
“Upon the above, all the claims of the claimant must be dismissed with the probable exception of claim (i) in the amended Statement of Claim which will be briefly considered.
This claim as appears at the beginning of this judgment is for N44,911,914.50 (Forty Four Million, Nine Hundred and Eleven Thousand, One

[sic] Hundred and Fourteen Naira Fifty Kobo) said to have been the claimant’s money held by the defendant since the 6th day of August 2009. The sum is claimed with interest.
There is however no clear pleading and evidence in support of this claim. Apart from the initial deposit paid by the claimant, he paid the sum of 34,000,000.00 per his letter dated the 30th day of July 2009, Exhibit P1 Page 16.
It is averred both in the pleadings and the evidence in support of the defendant’s case that part of the sum of N34,000.000.00 was applied towards paying in full for one of the houses, Libra house 3A Block 15 in order to enable the claimant transfer the house legally to one Jane Ejeh while the remainder was applied to further payment of Libra 3B Block 15. Exhibit P1 Page 17 also attests to this. There is no where in the pleading and evidence in support of the Claimant’s case denying that claimant indeed got House 3A Block 5 transferred to Jane Ejeh or that the money was applied as averred by the defendant.
Then there is another sum of 35,000.000.00 which the claimant also paid per his letter dated the 16th day of September, 2009.

The defendant averred in statement of Defence and it was also the evidence of the D.W1 that this cheque was returned to the claimant. Exhibit P1 Page 20, tendered by the claimant also attests to this. I am therefore at a loss to understand how the claim was generated. There is no clear pleading and evidence in support thereof.”

It is limpid that it is on account of the reasoning of the lower Court that there is no clear pleading and evidence in support of the claim for refund of the sum of N44.9 Million that the lower Court failed to evaluate the evidence and properly consider the case of the parties in this regard. This reasoning of the lower Court which resulted in its failure to evaluate the evidence seems to be at cross purposes with the reasoning of the lower Court at page 373 of the Records that:
“The claimant having breached the contract by failing to pay upon the completion of the houses… is not entitled to damages for breach of contract or any claim at all except perhaps a refund of his deposit.”

It becomes more interesting given the fact that the lower Court at page 369 of the Records, stated that it was agreed on all

sides that the Appellant had made initial payment for the houses in April 2008; but that when the Respondent breached the contract by not meeting the stipulated completion date, the “claimant was at liberty to terminate the contract and claim a refund of his deposit and possibly some damages.” It would have been expected that the lower Court would have evaluated the evidence to see if the Appellant is entitled to his claim for “a refund of his deposit” instead of shirking its responsibility in that regard by the assertion that there is no clear pleading and evidence.

Now, is the lower Court correct in its reasoning and decision that there is no clear pleading and evidence in support of the claim for N44.9Million? It is trite law that where a trial Court fails to properly appraise the evidence, an Appellate Court will be in a position to render the duty omitted to be done or which was wrongly done by the trial Court. To fail to do so will be an abdication of responsibility: IMAH vs. OKOGBE (1993) 9 NWLR (PT. 316) 159, ONWUKA vs. EDIALA (1989) 1 NWLR (PT. 96) 182, AKINTOLA vs. BALOGUN (2000) 1 NWLR (PT. 642) 532,

CHEDI vs. A-G FEDERATION (2006) LPELR (11806) 1 at 15 and LAGGA vs. SARHUNA (2008) LPELR (1740) 1 at 23-24. This will now captivate our attention!

The action at the lower Court was fought on the pleadings filed and exchanged by the parties and on the basis of which issues were joined. In paragraphs 4, 31-34 of the Amended Statement of Claim, the Appellant averred as follows:
“4. The Claimant, pursuant to the aforesaid contract and upon his acceptance thereof paid the required deposit as directed by the defendant and which deposit was accepted by the defendant.
31. The Claimant aver that the total sum of N73,085,315.00 (Seventy Three Million Eighty Five Thousand Three Hundred and Fifteen Naira) was paid to the defendant.
32. The Claimant aver that the initial payment of N39,085,315.00 (Thirty Nine Million Eighty Five Thousand Three Hundred and Fifteen Naira) being initial deposit and a further sum of N34 Million (Thirty Four Million Naira) on 30th July, 2009 total N73,085,315.00.
33. The Claimant aver that the value of Block 15 House 3A allocated to the Claimant is N28,173,400.50 (Twenty Eight Million One Hundred and Seventy Three Thousand Four

Hundred Naira and Fifty Kobo) as per accepted offer of 16th May, 2008.
34. The Claimant aver that the defendant has held on to the total sum of N44,911,914.50(Forty Four Million Nine Hundred and Eleven Thousand Nine Hundred and Fourteen Naira and Fifty kobo) from 30th July, 2009 till date.”
(See pages 107 and 110 of the Records)

The witness statement on oath of the Appellant as sole witness contained testimony in line with the above averments. There is nothing penumbrous or opaque about the above averments of the Appellant on his entitlement to the refund of the excess payment he made to the Respondent. As a matter of fact the pleadings in that regard are pellucid and lucent. By paragraph 4 of the Amended Statement of Claim, the Appellant averred that he paid the required deposit to the Respondent pursuant to the contract for the sale of the six houses to him. The amount of this deposit that was paid is averred in paragraph 32 of the Amended Statement of Claim to be N39.08Million. Now, in paragraph 2 of the Amended Statement of Defence, the Respondent admitted paragraph 4 of the Amended Statement of Claim. So it became settled that the

Appellant paid the sum of N39.08Million, being the required deposit on the six houses, to the Respondent. With respect to the averment in paragraph of 32 of the Amended Statement of Claim, the Respondent’s response or reaction thereto are in paragraphs 37 and 19 of the Amended Statement of Defence. It is therein averred as follows:
“37. In answer to paragraph 32 of the statement of claim, the Defendant repeats paragraph 19 of the statement of defence.”
“19. In answer to paragraphs 11 and 12 of the statement of claim, the defendant states that it applied the said sum of N34,000,000.00 (Thirty Four Million Naira) to discharge the claimant’s obligation in respect of the house known as Block 15 Plot 3A ‘Libra’ type house which the claimant had by his letter of 30th July, 2009 informed and instructed the defendant had been transferred to another person namely one Mrs. Jane Ejeh in order to save and preserve the claimant’s transaction with the said Mrs. Jane Ejeh, while sum of N9,988,063.00 (Nine Million Nine Hundred and Eighty-eight Thousand and Sixty-three Naira) remaining after the application for the full

payment of the cost of house 3A was applied to further payment on House 3B which the defendant hoped the claimant will fully discharge immediately to reciprocate the defendant’s gesture and good faith despite the expiration of the ultimatum given to the claimant to pay by the 21st July 2009.”
(See pages 228 and 224 of the Records)

It is clear from paragraph 19 of the Amended Statement of Defence that the Respondent having admitted that the Appellant paid the required deposit, did not dispute the sum of N39.08Million which the Appellant pleaded that he paid. The Respondent merely sought to explain in the said Paragraph 19 of the Amended Statement of Defence, how it applied the additional sum of N34Million which was paid by the Appellant. The Appellant in paragraphs 11 and 12 of the Amended Statement of Claim pleaded the payment of the further sum of N34Million to the Respondent. (See page 108 of the Records). The Respondent’s averment in paragraph 19 of the Amended Statement of Defence (already reproduced) is an explicit concession that it received the said N34million. This is so because if it had not been received, there would have

been nothing to apply; as the application of the said N34Million is the fulcrum of the averments in the said Paragraph 19 of the Amended Statement of Defence. On the state of pleadings, it is translucent that the Appellant made two payments to the Respondent which the Respondent accepted and utilised. First was the initial deposit of N39.08Million and then the additional payment of N34Million pleaded in paragraph 31 of the Amended Statement of Claim and broken down and explained in paragraph 32 of the Amended Statement of Claim. The facts pleaded makes the payment of the total sum of N73.08Million clear and beyond confutation.

From the pleadings and evidence on record the following facts are clear, accepted by the parties and cannot be oppugned:
1.The parties entered into a contract for the sale of six houses to the Appellant. The contract (Letters of allocation of the houses) tendered at the trial as Exhibit P1 pages 2-7 are reproduced at pages 17-21 of the Records.
2. The Appellant paid the initial deposit of N39.08Million, leaving outstanding the sum of N137.44Million which was to be paid upon the completion of the houses within the period

of nine (9) months.
3. The Respondent did not complete the houses within the scheduled nine (9) months but the Appellant did not treat the contract as at an end, he kept it alive.
4. The Respondent eventually completed the houses about six months behind schedule and it called on the Appellant to pay the outstanding balance of N137.44Million on the houses. (The Respondent’s letter Exhibit P1 pages 11-12is reproduced at page 26 of the Records). It is instructive that the said Exhibit acknowledges the deposit of N39.08Million paid by the Appellant for the houses. See also Exhibit P1 pages 8-10.
5. The Appellant proposed payment of the balance in two instalments of N100Million and N37.44Million. He made a down payment of N34Million as part of the first instalment of N100million. (The Appellant’s letter, Exhibit P1 page 16, is reproduced at page 27 of the Records).
6. The Respondent applied the N34million to full payment for one of the houses (House 3A) and further payment on a second house (House 3B). (The Respondent’s letter in this regard, Exhibit P1 page 17, is reproduced at page 87 of the Records).
7. The Appellant

subsequently made a second instalment payment of N35Million with instructions for the transfer of House 3B to a successor. The Respondent returned the said cheque on the ground that the allocation to the Appellant had been revoked, the Appellant having failed to pay for the houses. (The letters in this regard, Exhibit P1 pages 18-21 are reproduced at pages 28-30 and 88 of the Records).
8. Consequently, of the six houses subject of the contract, only one house, House 3A, was transferred to the Appellant and/or his successor in title. The Respondent had transferred the remaining five houses to other purchasers.
9. The letter of allocation and the application of the N34Million towards completion of the purchase price for House 3A by the Appellant shows that the value of the house is N28.1Milion as pleaded by the Appellant in Paragraph 33 of the Amended Statement of Claim, which paragraph the Respondent did not deny.

Based on the foregoing facts, the Appellant having made payment of the total sum of N73.08Million to the Respondent, had only one house (House 3A) value at N28.1million transferred to him. Therefore, the Respondent still had the

difference between the amount paid and the value of the house transferred with it. It is this difference that the Appellant claimed for its refund and which the lower Court held that there was no clear pleading and evidence in support thereof. It seems, with due deference to the lower Court, that it did not adequately comprehend the pleadings and evidence, the transactional relationship between the parties being documentary. Indeed, the Respondent admitted in its Amended Statement of Defence that it still had the funds of the Appellant in respect of the deposits he had made on the five houses which were not transferred to him. The Respondent averred as follows in paragraphs 38 and 39 of the Amended Statement of Defence:
“38. In answer to paragraph 34 of the statement of claim, the Defendant states that it has at various times made efforts to return the deposit made on the houses the subject of this suit to the Claimant, but the Claimant has consistently refused take the money.
39. In further answer to paragraph 34 of the statement of claim, the Defendant avers that the total deposit made by the Claimant on the various houses in issue is,

N43,503,244.00 made up as follows:
i. House Libra 7A- deposit made – N6,896,500.00
ii. House Libra 7B- deposit made – N6,896,500.00
iii. House Libra 8A- deposit made – N7,076,023.50
iv. House Libra 8B- deposit made – N7,076,023.50
v. House Libra 3B- sum credited as paid -N15,558,197.00.”
(See pages 228 and 229 of the Records)

Even though the amount admitted by the Respondent in paragraph 39 of the Amended Statement of Defence, is slightly less than the amount claimed by the Appellant as the refund of his deposit; the Appellant was at the very least entitled to judgment on the admitted sum. It is rudimentary law that a fact admitted by a defendant in his pleadings need not be proved by the claimant, but should be regarded as established at the trial: OKPARAEKE vs. EGBUONU (1941) 7 WACA 53 at 55, N.I.P.C. LTD vs. THE THOMPSON ORGANISATION LTD (1969) LPELR (25547) 1 at 5-6, AJUWON vs. AKANNI (1993) LPELR (311) 1 at 27-28 and NWANKWO vs. NWANKWO (1995) 5 SCNJ 44 at 62.

Be that as it may, from the analysis herein of the facts pleaded and joinder of issues, it cannot be repudiated that the

Appellant paid the total sum of N73.08million to the Respondent, which amount the Respondent duly acknowledged and which is further established by the documentary evidence on record. From this payment, the Respondent only transferred one house valued at N28.1million to the Appellant. It does not require rocket science to decipher that based on this, the Respondent still held on to the funds of the Appellant amounting to the total sum of N44.9million which is the difference between N73.08million (amount paid) and N28.1million (value of house transferred). The evidence on record established this and the Appellant is definitely entitled to judgment for the refund of the said amount since the consideration for which it was paid had failed as a result of the Respondent’s revocation of the contract and subsequent transfer of five houses to other purchasers. On the preponderance of evidence or balance of probabilities, the Appellant was entitled to judgment for the refund of the said sum of N44.9million vide OBASI BROTHERS MERCHANT CO. LTD vs. MERCHANT BANK FOR AFRICA SECURITIES LTD (2005) LPELR (2153) 1 at 9, OWIE vs. IGHIWI (2005) LPELR (2846) 1 at 30,

NEWBREED ORGANISATION LTD vs. ERHOMOSELE (2006) LPELR (1954) 1 at 25-26 and SOROUNGBE vs. LAGOS STATE URBAN RENEWAL BOARD (2017) LPELR (43378) 1 at 16-17.

The Appellant claimed both pre-judgment interest and post-judgment interest on the said sum of N44.9m. The Appellant’s counsel has rightly submitted that the parties were engaged in a commercial transaction and that the Appellant was entitled to interest on his money which the Respondent had failed to refund when it revoked the contract. Now, there are two types of interest usually awarded by a Court, scilicet: pre-judgment interest otherwise known as ‘interest as of right’ or ‘moratory interest’ and post-judgment interest otherwise known as ‘discretionary interest’, which a Court is allowed by the Rules of Court to award to a successful party at the end of the trial, at a rate fixed by the Rules. Pre-judgment interest must be claimed and evidence adduced to prove it, failing which it will not be awarded by a Court. The award of pre-judgment interest can be made where it is contemplated in an agreement between the parties, under a mercantile custom and under the

principle of equity such as breach of fiduciary relationship. See EKWUNIFE vs. WAYNE (WA) LTD (1989) 5 NWLR (PT. 122) 422 at 445, IDAKULA vs. RICHARDS (2001) 1 NWLR (PT. 693) 111 at 122, 124 and 124-125 and UNITY BANK PLC vs. RAYBAM ENGINEERING LTD (2017) LPELR (41622) 1 at 22-23.
It is however valid law that a Court can still grant pre-judgment interest on a monetary or liquidated sum awarded to a successful party, even in a situation where such a party did not plead or adduce evidence in proof of such claim. Such interest, like in this matter, naturally accrues from the failure or refusal to pay the amount involved over a long period of time, thereby depriving a party from the use of and/or enjoyment of the sum involved which is the fruit of his judgment. See NPA vs. AMINU IBRAHIM & CO. (2018) LPELR (44464) 1 at 39-40, NIGERIAN GENERAL SUPERINTENDENT CO. LTD vs. NPA (supra) at 748, ADEYEMI vs. LAN & BAKER NIG LTD (supra) at 48, STABILINI VISINONI LTD vs. METALUM LTD (2007) LPELR (8661) 1 at 18-19 and CROWN FLOUR MILLS LTD vs. OLOKUN (2007) LPELR (8534) 1 at 37-38.
The Appellant claimed pre-judgment interest at the rate of 21%. Even though the

Respondent pleaded in paragraph 38 of the Amended Statement of Defence that it made efforts to return the deposit made to the Appellant, there is no evidence in proof of this averment. The Respondent neither tendered any monetary instrument it issued in favour of the Appellant or any document showing any effort to return the deposit. The Respondent revoked the contract by its letters dated September 18, 2009 and September 30, 2009 respectively. (The said letters, Exhibits P1 pages 20-21 are reproduced on pages 28 and 29 of the Records). The Respondent stated in both letters that it would refund the deposit paid by the Appellant, “as soon as the property is sold”. The Respondent led evidence at the trial that it had sold the houses to other purchasers, but it still failed to refund the Appellant’s deposit. Resultantly, the Respondent has held on to the money of the Appellant since September 2009 when it revoked the contract. Business or commercial circumspection dictates that upon the revocation, the Respondent ought to have returned the deposit alongside the letter of revocation. In ADEYEMI vs. LAN & BAKER (NIG) LTD (supra), it was held

that a claimant is entitled to interest in a claim for return of money arising from a commercial transaction where the defendant has held the money of the claimant for sometime. In a situation arising from commercial matters, a party holding on to the funds of another for so long without justification ought to pay him compensation for doing so. See also NPA vs. AMINU IBRAHIM & CO. (supra) and NIGERIAN GENERAL SUPERINTENDENT CO. LTD vs. NPA (supra). This ticks all the boxes in this matter. The parties were engaged in a commercial transaction. The Respondent ought to have returned the Appellant’s deposit since September 2009. The Respondent has therefore held on to the funds of the Appellant, not just for some time, but for a long time. Even though the Appellant claimed payment of interest from 6th August, 2009, the entitlement to interest would only rightly accrue from September 2009 when the contract came to an end. The Appellant is therefore awarded pre-judgment interest at the rate of 21% from 1st October, 2009 till 1st February, 2017, being the date of the judgment of the lower Court; when the order ought to have been made.
The Appellant’s

claim for post-judgment interest is at the rate of 10% from the date of judgment until full liquidation of the debt. I have already stated that post-judgment interest or discretionary interest is that interest which a Court is allowed by the Rules of Court to award to a successful party at the end of the trial at a rate fixed by the Rules. In the course of this judgment, I have found and held that the Appellant is entitled to a refund of the sum of N44.9million being the excess amount of the deposit on the purchase price he paid to the Respondent for the five houses that were not transferred to him by the Respondent. The power of a Court to award post-judgment interest is usually exercised when the Court has pronounced its judgment on any claim. See EBERE vs. ABIOYE (2005) 41 WRN 1 at 45. In exercise of discretion pursuant to Order 35 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 2012 (the Rules of Court in force at the date of the judgment of the lower Court), the Appellant is entitled to interest on the judgment sum at the rate of 10% per annum until final liquidation of the judgment sum. The post-judgment interest is to run from 1st

February, 2017, the date of the judgment of the lower Court, since the Appellant was entitled to judgment being entered in his favour as that date: AGBONENI vs. ALAKIU (2018) LPELR (44807) 1 at 39.

PERORATION
The concatenation of the foregoing is that there is merit in this appeal. It therefore succeeds. The part of the judgment of the lower Court, Coram Judice: Olokoba, J., complained about in the Notice of Appeal is hereby set aside. For good order sake and for the avoidance of doubt, judgment is hereby entered in favour of the Appellant in the following terms:
1. The Respondent is to refund to the Appellant the sum of N44, 911,914.50 (Forty-four Million, Nine Hundred and Eleven Thousand, Nine Hundred and Fourteen Naira, Fifty-kobo).
2. There shall be 21% interest on the said judgment sum of N44, 911,914.50 (Forty-four million, Nine Hundred and Eleven Thousand, Nine Hundred and Fourteen Naira, Fifty-kobo) from the 1st day of October 2009 to the 1st day of February 2017, being the date of the judgment of the lower Court.
3. There shall be 10% interest per annum on the said judgment sum of N44, 911,914.50 (Forty-four Million, Nine

Hundred and Eleven Thousand, Nine Hundred and Fourteen Naira, Fifty-kobo) from the 1st day of February 2017, being the date of the judgment of the lower Court, until the final liquidation of the judgment sum.
4. The sum of N250, 000.00 is awarded in favour of the Appellant as the costs of this appeal.

OBANDE FESTUS OGBUINYA, J.C.A.: I was availed the opportunity to read, in advance, the elegant leading judgment delivered by my learned brother: Ugochukwu Anthony Ogakwu, JCA. I totally concur with the reasoning and conclusion in it.

It is decipherable from the record, the bible of the appeal, that the feuding parties share consensual view that the respondent has been a custodian of the appellant’s deposit of the whopping sum of N44.9Million without a corresponding delivery of any housing unit. The act, in the eyes of the law, is a classic exemplification of total failure of consideration. Where there is a total failure of consideration, the creditor is entitled to a refund of his monetary consideration, see Pan Bisbilder (Nig.) Ltd. v. FBN Ltd. (2000) 1 NWLR (Pt. 642) 684; Nwaolisah v. Nwabufoh (2011) 14 NWLR (Pt. 1268) 600;

UBN PLC v. Awmar Properties Ltd. (2018) 10 NWLR (Pt. 1626) 64. It will therefore serve the ends of justice that the respondent returns the deposit on the footing of absence of consideration. Curiously, this essential aspect did not arrest the attention of the lower Court. The consequence is far-reaching. It occasioned its decision on the point, with due respect, to be marooned in the murky ocean of perversity. It will smack of mockery of justice to allow it to stand.

For this reason, coupled with the detailed reasons marshalled in the attractive leading judgment. I too allow the appeal in the manner decreed in it.

BALKISU BELLO ALIYU, J.C.A.: I have read in advance the judgment of my learned brother UGOCHUKWU ANTHONY OGAKWU, JCA just delivered and I entirely agree with the reasoning and conclusion reached therein by His Lordship.
I also see merit in this appeal and I allow it in terms of the orders made in the leading judgment.
I abide by the order as to cost made therein. Appeal allowed by me.

Appearances:

A.M. Makinde, Esq., SAN with him, Ms. E. O. Afolabi For Appellant(s)

Abiola Adegoke, Esq. For Respondent(s)