OSEVWERHA v. OWHOFASA (2020)

OSEVWERHA v. OWHOFASA

(2020)LCN/15399(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Wednesday, October 14, 2020

CA/AS/372/2016

RATIO

DUTY OF COURT: WHETHER AN APPELLATE COURT MAY INTERFERE WITH THE EXERCISE OF DISCRETION OF A LOWER COURT

WHETHER A CLAIM FOR PREJUDGMENT INTEREST IS AN INTEREST AS OF RIGHT AND CAN BE SPECIFICALLY CLAIMED

CONTRACT LAW: ELEMENTS OF A BINDING CONTRACT

It is apposite at this junction to consider the elements of a binding contract. In BPS CONSTRUCTION & ENGINEERING CO LTD v FCDA (2017) LPELR – 42516 (SC), where the Supreme Court stated the ingredients of a binding contract thus;
“This Court in a recent decision in: Bilante International Ltd v. NDIC (2011) 15 NWLR (Pt.1270) 407 @ 423 C – F, restated the position of the law regarding what constitutes a valid and enforceable contract thus: “Contract is defined as an agreement between two or more persons which creates an obligation to do or not to do a particular thing. Its essentials are competent parties, subject matter, a legal consideration, mutuality of agreement and mutuality of obligation. Lamoureux v. Burrillville Racing Ass’n 91 R. 194, 161 A.2d 213, 215. To constitute a binding contract between parties, there must be a meeting of the mind often referred to as consensus ad idem. The mutual consent relates to offer and acceptance. An offer is the expression by a party of readiness to contract on the terms specified by him, which, if accepted by the offeree gives rise to a binding contract. The offer matures to a contract where the offeree signifies a clear and unequivocal intention to accept the offer. See: Okugule & Anor V. Oyagbola & Ors. (1990) 4 NWLR (Pt.147) 723. It should be reiterated that in order to establish that parties have formed a contract, there must be evidence of consensus ad idem between them. Then, if there is a stipulated mode for acceptance of the offer, the offeree has a duty to comply with same. See: Afolabi Vs Polymera Industries Ltd. (1967) 1 All NLR 144, (1967) SCNLR 256.” The basic elements of binding contract are therefore offer, acceptance/consideration, capacity to contract and intention to create a legal relationship. See also;

WORDS AND PHRASES: “SPECIFIC PERFORMANCE”

It is of utmost relevancy to define “specific performance” and when it is necessary for it to be granted.
In BEST (NIGERIA) LIMITED v BLACKWOOD HODGE (NIGERIA) LIMITED & ORS (2011) LPELR – 776 (SC), specific performance was defined as;
“Specific performance has been defined in Black’s Law Dictionary Ninth Edition at page 1529 as ‘the rendering, as nearly as practicable, of a promised performance through a judgment or decree; a Court ordered remedy that requires precise fulfilment of a legal or contractual obligation when sale of real estate or a rare article is involved. Specific performance is an equitable remedy that lies within the Court’s discretion to award whenever the common law remedy is insufficient.” (underlining mine) per FABIYI, JSC (P. 26, PARAS B – D)
See also; ACMEL NIGERIA LTD & ANOR v FBN PLC & ORS (2014) LPELR – 22444 (CA).
In ANTHONY IBEKWE v OLIVER NWOSU (2011) LPELR – 1391 (SC), the nature of the doctrine of specific performance was further expatiated thus;
“Specific performance is the remedy of requiring exact performance of a contract in the specific form in which it was made or according to the precise terms agreed upon. It is the actual accomplishment of a contract by a party bound to fulfil it. The doctrine of specific performance is that where monetary damages would be an inadequate compensation for the breach of an agreement, the contractor or vendor will be compelled to perform specifically what he has agreed to do. He can, for example, be ordered to execute a specific conveyance of land.” (underlining mine) per FABIYI, JSC (PP. 10 – 11, PARAS D – A).
This Honourable Court also in IGWEBE v SAIDASHS INTL LTD & ANOR (2016) LPELR – 41188 (CA) held on the nature of specific performance;
“The doctrine of specific performance postulates that where monetary damages would be an inadequate compensation for breach of an agreement, the vendor will be compelled to perform specifically what he has agreed to do. In BFI GROUP CORPORATION V. BUREAU OF PUBLIC ENTERPRISES (2012) LPELR – 9339 – SC, the Supreme Court held: ‘It is the rendering as nearly as practicable of a promised performance through a judgment or decree; a Court ordered remedy that requires precise fulfilment of a legal or contractual obligation when monetary damages are inappropriate or inadequate as when the sale of real estate or a rare article is involved. In essence the remedy of specific performance enforces the execution of a contract according to its terms.” Per FABIYI, J.S.C.” (underlining mine) per MUSTAPHA, JCA (PP. 18 – 19, PARAS. E – B).
See also; HELP (NIG) LTD v SILVER ANCHOR (NIG) LTD (2006) LPELR – 1361 (SC); ACHONU v OKUWOBI (2017) LPELR – 42102 (SC);ISHOLA v OLUWALOGBON(2013) LPELR – 22206 (CA); MR. STEPHEN BOBAI v EMMANUEL T. MARK ACHI & ANOR (2015) LPELR – 25901 (CA).
This equitable remedy is however granted on certain conditions, as stated in NIGER CLASSIC INVESTMENT LIMITED v UACN PROPERTY DEVELOPMENT COMPANY (2016) LPELR – 41426 (CA);
“…The settled conditions of making an order for specific performance was highlighted earlier in this judgment and principal therein is the condition that there must be a valid contract and the Appellant must have performed all that is required of him in the contract.” per NIMPAR, JCA (P. 19, PARAS. C – D)
This Honourable Court further held in MUSTAPHA v ABUBAKAR & ANOR (2010) LPELR – 4567 (CA) that;
“However, it should be noted that a plaintiff must come to equity with clean hands, in that, before specific performance can be decreed in his favour, he must show that he has performed all his own obligations under the contract, or has tendered performance, or is ready and willing to perform. For instance, a person holding under an agreement for a lease is not entitled to a decree of specific performance of the lease if he is himself in breach of one of its covenants. It must, also be emphasized that specific performance is confined to the enforcement of positive contractual obligations. These obligations must be binding on the defendant. The position of the law is that, if a purchaser fails to complete payment of the purchase price, the vendor can treat that as a repudiation, and claim damages for breach of contract, or he may seek specific performance.
Further, it should be noted that there are situations in which the discretion of the Court is unlikely to be exercised in favour of a decree of specific performance, although the contract is of a type to which the remedy is appropriate” (underlining mine) per ORJI – ABADUA, JCA (PP. 24 – 25, PARAS. E – C).
See also; ADIGUN v IBADAN NORTH LOCAL GOVERNMENT (2016) LPELR – 41385 (CA); UNIVERSAL VULCANIZING (NIG) LTD v IJESHA UNITED TRADING AND TRANSPORT CO. LTD & ORS (1992) LPELR – 3415 (SC); AMADI v OBIAJUNWA (2016) LPELR – 40461 (CA); HADIZA & ANOR v MOHAMMED & ANOR (2015) LPELR – 40383 (CA). PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

CHIEF JOACHIN OSEVWERHA APPELANT(S)

And

ATARHE OWHOFASA RESPONDENT(S)

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the final judgment of Delta State High Court, Udu division, coram Hon. Justice C. E. Achilefu (Mrs) delivered on 3rd June, 2016. The facts of this case as gleaned from the record before the Court are that; the Respondent (who was the Defendant at the lower Court), sometime in 2013 offered the Appellant (who was the Claimant at the lower Court), four (4) plots of land for the consideration of N 1,200,000 (One Million, Two Hundred Thousand Naira) for each of the four (4) plots, the total price and/or consideration for the said four (4) plots of land is N4,800,000 (Four Million, Eight Hundred Thousand Naira). The Appellant paid the Respondent a total sum of N4,000,000 (Four Million Naira). The Respondent after receiving the part payment refused to execute a deed of assignment in favour of the Claimant. Aggrieved, the Appellant instituted a suit in 2014 at the lower Court against the Respondent claiming in the main claim;
a) A Declaration that the title in and above the piece or parcel of land covered by property survey plan No: ER/DT/797/2013, measuring approximately 1850.172 square metres, lying and situate behind Holy Trinity School/Ogunu Football Pitch, by Shell Petroleum Development Company (SPDC) Fence in Ogunu Town, is now vested in the claimant by reason of the consideration in the sum of N4,000,000 (Four Million Naira) so far paid by the claimant to the defendant and/or the contract of sale entered into between the claimant and the defendant, which said contract was acknowledged by the defendant vide letter addressed to the claimant dated 18th day of September, 2013.
b) An Order of perpetual injunction restraining the defendant, his agents, assigns, privies and/or any person claiming through, under and/or in trust for him from selling, leasing, assigning, dealing and/or alienating to any other person, the aforesaid piece or parcel.
c) An Order of specific performance of the said contract of sale and directing the defendant as the assignor to sign, execute and/or perfect the Deed of Assignment prepared by claimant’s Solicitor in respect of the piece or parcel of land covered by the aforesaid property survey plan No: ER/DT/797/2013 in favour of the claimant.
d) The sum of N20,000,000 (Twenty Million Naira) as damages suffered by the Claimant as a result of the arrest and detention of the claimant by the Area Commander, Warri Area Command of the Nigeria Police at the instigation and direction of the defendant on the 8th day of April, 2014.
In the Alternative
e) The refund of the sum of N4,000,000 (Four Million Naira), being the total sum so far paid by the claimant to the defendant, as consideration in respect of the piece or parcel of land covered by Property Survey Plan No: ER/DT/797/2013, and receipt of which sum was acknowledged in defendant’s Solicitor’s letter dated 18th day of September, 2013, with interest at the rate of 35 percent per annum from April 2013 till judgment is delivered and 20 percent per annum from the day of judgment till liquidation of the judgment sum.
f) Payment of the sum of N 25,000,000 (Twenty-Five Million Naira) as general damages for breach of contract of sale.
g) Any other suitable relief.
See pages 2 – 3 of the record.

The Respondent as Defendant in the lower Court counter claimed against the Appellant/Claimant. He contended that the contract for the sale of land between him and the Appellant was for 3 plots of land at N2,000,000 each, making a total consideration of N6,000,000. That the Appellant made the first instalment payment of N1,200,000 and later the balance of N2 800,000 instead of N4,800,000, and later reneged on the contract, and offered to pay N1,200,000 for each plot, the Respondent refused to sign the deed when presented, directing the Appellant to effect changes to the dimension of the land and consideration for same. Respondent alleged that the Appellant refused to effect the changes and resorted to threats, following which the Respondent terminated the contract in writing and sold the land to 3rd parties.

The Respondent counterclaimed against the Appellant thus;
A declaration that the Claimant/Defendant having breached the terms of the contract for the sale of the land to him by the Defendant/Counter-Claimant, the Defendant/Counter-Claimant was right to terminate the contract for the sale of land.
a) The sum of N5,000,000 against the Claimant/Defendant as damages for the breach of contract for sale of land.
b) An order directing the Claimant/Defendant to collect the N4,000,000 paid to the Defendant/Counter–claimant for the contract for the sale of land, the contract having been terminated.
c) The sum of N25,000,000 for damages suffered by the Defendant/Counter–claimant, in that the acts of the Claimant/Defendant caused the Defendant to be arrested and detained at the Area Command Police Station, Warri, sometime on 31st March, 2014.
d) An Order of perpetual injunction restraining the Defendant, either by himself or through his agents, servant or privies, from embarrassing or intimidating the Defendant/Counter–Claimant or 3rd parties in respect of the land subject matter in this suit.
See page 36 of the Record.
The lower Court in its judgment granted the 1st ambit of relief “e” of the Appellant’s alternate claim.

Dissatisfied, the Appellant filed his Notice of appeal containing eleven (11) grounds of appeal on 11th July, 2016, and his brief of argument on 5th April, 2017, but deemed filed on 22nd May, 2018, which was settled by Chief V. E Otomiewo of V E Otomiewo & Co, Oshesheri Chambers, wherein the following issues were formulated for determination;
1. “Whether considering the fact that the Appellant made a part payment of the purchase price, coupled with the Appellant’s survey of the land in dispute, the lower Court is not in error when it held that there must be a binding or valid contract of sale of land before an order of specific performance can be made, having regards to the case of INTERNATIONAL TEXTILES LTD VS. ADEREMI (1999) NWLR (PT. 614) PG 268 AT 303 PARA C and the case of MUSTAPHA VS ABUBAKAR (2012) ALL FWLR (PT. 651) 1519 AT 1536 PARAS B – C, 1537 PARAS A – B?
2. Whether the learned trial judge was right when she held that the Appellant is only entitled to an immediate refund of the actual sum paid without interest or interest at 10% per annum only from the month of July till the judgment sum is liquidated;
3. If the answer to issue 2 above is in the negative, whether the interest awarded is justifiable and reasonable having regards to the fact and circumstances of this case?
4. Whether the failure of the learned trial judge to rely and apply the case of A.G, FERRERO & CO. LTD VS. HENKEL CHEMICALS (NIG) LTD (2011) ALL FWLR (PT. 587) 647 AT 657 – 658 PARAS G – H, relied upon and cited by the Appellants in their final written address did not occasion a miscarriage of justice?
5. Whether the trial judge was right when she based her refusal to grant Appellant’s alternative reliefs on the fact that Respondent asked Appellant to collect his N 4,000,000 (Four Million Naira) and he refused?”

The Respondent in response also filed his brief of argument on the 27th July, 2018. The brief was settled by P. A. Oboreh Esq. of P. A. Oboreh & Co, wherein the following issues were distilled;
“1. Whether the learned trial judge was not right to refuse the relief of specific performance even though the Appellant made part payment and also surveyed the land in dispute?
2. Whether the learned trial judge was not right when she ordered the Respondent to refund the sum of Four Million Naira to the Appellant within 30 days from the date the judgment without interest or else with interest at the rate of 10% per annum from the month of July 2016 till the liquidation of the judgment sum?
3. Whether the learned trial Judge was not right when she refused all the alternative reliefs except the refund of N4,000,000 to the Appellant on the fact that the Respondent asked the Appellant to collect his N4,000,000 and he refused?”

APPELLANT’S ARGUMENTS
It is the Appellant submission on issue 1 that the trial judge completely misconceived the Appellant’s argument when she held that there must be a binding contract for there to be an order of specific performance and relied on the case of INTERNATIONAL TEXTILES IND (NIG) LTD VS. ADEREMI (1999) NWLR, PT. 614, PG 268 AT 303, PP. C.
That there is a valid contract in this instant case, the part payment of the purchase price, the acceptance of the same and the entry of the Appellant on the land to survey same, constitute a valid contract. The Respondent at no time pleaded and/or proved repudiation nor did he refund the money.

It is the further submission of the Appellant that it has been held in several authorities that, where part payment of a purchase price is made to a vendor, the purchaser acquires an equitable interest in the property and which interest ranks as high as a legal estate. That the trial judge failed to rely on the case of MUSTAPHA v ABUBAKAR (2012) ALL FWLR (PT. 651) 1519 AT 1536 PARAS B – C. The cases of; BRIGGS v OKOYE (2005) 4 S.C, 89 AT 122 – 123; BEST (NIG) LTD v BLACKWOOD HODGE (NIG) LTD (2011) ALL FWLR (PT. 573) 1955 AT 1970 – 1971, PARAS F – A; ENEJO v SANUSI (2008) ALL FWLR (PT. 412) 1084 AT 1106, PARAS B – D were cited in aid.
The Appellant contends that the learned trial judge erred in law when she refused to grant an order of specific performance, juxtaposed with the Appellant’s firm and uncontradicted evidence, which is more than can be said about the Respondent’s evidence.

Arguing Issues 2, 3 and 4 together, the Appellant submits that interest may be awarded in two circumstances; a) Where it is claimed as of right, b) Where there is a power conferred by statute to do so in exercise of the Court’s discretion. EKWUNIFE v WAYNE (W/A) LTD (1989) 5 NWLR (PT. 122) PG. 422 AT 445 PARA B; SANI ABACHA FOUNDATION FOR PEACE & UNITY v UBA PLC (2010) ALL FWLR (PT. 522) PG 1668 AT PG 1674 PARA D – E were cited in aid.

The Appellant further submits that a claim for prejudgment interest may be made by a plaintiff as a right where it is either expressly provided for in or is contemplated by the agreement between the parties or under a mercantile custom or under a principle of equity such as a breach of fiduciary relationship. Reference was made to A. G FERRERO & CO LTD v HENKEL CHEMICALS (NIG) LTD (2011) ALL FWLR (PT. 587) 647 AT 660 PARAS A – D.
That having established by evidence that the monies of the Appellant were withheld by the Respondent from 2013 till date of judgment and without any justification; the Appellant is entitled to compensation by way of interest.

Appellant further contends on interest on judgment debt relying on EKWUNIFE v WAYNE (W/A) LTD (SUPRA) PG 446 PARA A; EDILCO NIG. LTD v UBA PLC (2000) 2 NWLR (PT. 698) PG 492 AT 515 PARAS D – E; Order 35 Rule 7 High Court of Delta State (Civil Procedure) Rules 2009, that the trial judge erred in law when she awarded 10% interest rate per annum from July 2016 till the judgment sum is liquidated, when the interest rate to be awarded is 20%. That the lower Court failed to put into consideration the fact that the Respondent deliberately kept the Appellant’s Four million naira for a period of more than three (3) years while at the same time, refusing to specifically perform the contract of sale of land.

On issue 5, the Appellant submits relying on NIGERIAN NATIONAL PETROLEUM CORPORATION v KLIFCO NIG. LTD (2011) 4 S.C (PT. 1) 108 AT 137, PARA 35 & P. 138, PARA 5, 140, PARAS 35, that where a main claim fails, the Court ought to consider the alternative claim.
ALL PROGRESSIVES CONGRESS v INDEPENDENT NATIONAL ELECTORAL COMMISSION (2014) 11 S. C, 157, PARAS 15 – 20; NWAOLISAH v NWABUFOH (2011) 6 – 7, S. C were further cited in submitting that the Appellant is entitled to relief (e) for the refund of his money and interest thereon.

On relief (f), it is the contention of the Appellant that he was able to establish that he had been made to suffer discomfort and he need not specifically prove the damages suffered, as general damages flows naturally from the breach. UNION BANK OF NIG PLC v CHIMAEZE (2014) 4 S. C (PT. III) 110 AT 114, PARAS 5 – 10; O.C.F. S LTD v OGUNLEYE (2008) ALL FWLR (PT. 427), PAGE 48 AT 64, PARAS G – H; ADIM v NIGERIAN BOTTLING CO. LTD (2010) ALL FWLR, (PT. 527), PAGE 690 AT 701, PARAS B – F; G. CHITEX IND. LTD v OCEANIC BANK INT’L (2005) 7 S.C (PT 11) 50 AT 58, PARAS 25 – 40 were cited in aid.
Appellant submits that the trial Court has discretion to award damages where it is not claimed but where the evidence led supports same, and such discretion must be exercised judicially and judiciously; UBN PLC v ADJARHO (1997) 6 NWLR (PT. 507) 112 AT 126 PARA E – F. That where the trial Court fails to award damages in a situation he ought to, the Court of Appeal will be entitled to award damages; SOLEH BONEH (NIG) LTD v AYODELE (1989) 1 NWLR (PT. 990 PG 549.

On the whole, the Appellant urged this Court to uphold this appeal and set aside the judgment of the lower Court and grant the claim of the Appellant in its entirety or in the alternative.

RESPONDENT’S ARGUMENTS.
On issue 1 and in reply to the Appellant’s issue 1, it is the contention of the Respondent that the trial judge came to the right conclusion on the position of law that the Appellant is not entitled to order of specific performance. That there was no legally binding contract for the sale of land which should be enforced against the Respondent before the lower Court. BEST (NIG) v BLACK WOOD HODGE (NIG) LTD (2011) ALL FWLR (PT. 573) 1955 AT 1978 PARAS A – C (RATIO 5) was cited in aid.

He further contends that even from the correspondence exchanged by both parties in this case through their lawyers as shown in Exhibits A and A1, there is a disagreement as to how much was agreed as total consideration for the land. That for the contract to be enforceable against the Respondent, the Appellant must show that they are in total agreement on all the terms of the contract and that the Appellant has performed all the terms, also that the Respondent is in breach that the Appellant failed to prove these facts at the lower Court; AKINYEMI v ODU’A INVESTMENT CO. LTD (2012) 17 NWLR (PT. 1329) 209 AT 240 PARAS C – D (RATIO 27).

In contention of the Appellant arguments in paragraph 3.02 of its brief, the Respondent submits that there was no valid contract and the entry of the Appellant on the land to carry out survey does not in itself constitute a valid contract and, the entry of the Appellant on the land when there was no agreement as to the terms of contract only constitutes an act of trespass on the land. He submitted further that the case of INTERNATIONAL TEXTILES LTD VS. ADEREMI (SUPRA) is not on all fours with this case, as it was held that to sue for specific performance is to assume that a contract is still subsisting and therefore to insist that it should be performed. But in this instant case the contract had long been terminated by Exhibit A.

In further contention of the Appellant’s submissions at paragraph 3.05, the Respondent opines that the case of MUSTAPHA v ABUBAKAR (SUPRA) relied upon by the Appellant is inapplicable to this case and does not therefore bind this case as the facts are materially different from this case.
On the authority of BRIGGS v OKOYE (2005) 4 S.C. 89 AT 122 – 123; Respondent contends that no equitable interest of the Appellant on the said land crystallised into legal estate as the Appellant was not able to show that he was put into possession of the land by the Respondent.

The Respondent further contends that the case of ENEJO v SANUSI does not apply to this case as the Appellant has not shown that he has fulfilled all the condition precedent in the contract. That the law is that failure to pay the purchase price under a contract for sale of land constitutes a fundamental breach which goes to the root of the contract and upon which the Court cannot decree specific performance; NIDOCCO LIMITED v MRS GBAJABIAMILA (2013) 12 NWLR (PT, 1374) 350 AT 382, PARAS h (RATIO 3); BEST NIGERIA LTD v BLACKWOOD HODGE (NIG) LTD (SUPRA) AT 1968 – 1969, PARAS H – B.

The Respondent submits that the four million naira the Appellant paid was a deposit and DAKOUR v LAGOS STATE GOVERNMENT (2015) ALL FWLR (PT. 809) 917 AT 948 PARAS A – C (RATIO 12); ABDU MANYA v ALHAJI IDRIS (2000) FWLR (PT 23) 1237 AT 1248 PARAS D were cited in aid. That the Appellant’s failure to pay the balance sum for the land, gave the Respondent the right to rescind the contract and resell to 3rd parties.

The Respondent on issue 2 and in reply to issues 2, 3 and 4 of the Appellant’s brief, submits that the Appellant has not been able to show to the Court that it was the Respondent who breached the contract or whose wrongdoing has imposed on him loss or special damages. The Respondent further submits that the counter offer by the Appellant is an outright rejection of the original offer made by the offeror (Respondent) to the offeree (Appellant). That the counter offer indeed destroyed, is not capable any more of any acceptance. AKINYEMI v ODUA INVESTMENT CO. LTD (2012) 17 NWLR (PT. 1329) 209 AT 240 PARAS A – C (RATIO 3).

He contends that since September 2013 when Exhibit A was written by the Respondent’s solicitor and served on the Appellant, the Respondent had called on the Appellant to come and collect his money but the Appellant has refused. Therefore, the submission and argument of the Appellant at pages 14 – 15 is misconceived.

On the Appellant’s submission on the entitlement to the claim of 35% interest per annum on the sum of Four Million Naira from April 2013 when the money was paid, till June 2016 when the Judgment was given, it is the Respondent’s contention that the submission of the Appellant is not the position of the law, as it has been shown, the justification for holding the money is that the Appellant has refused to accept the money. That there is no pleading or evidence on the part of the Appellant that he demanded for the money and the Respondent withheld the money without justification.

Respondent further contends that the Appellant having breached the contract, and also refused to collect his part payment of the purchase price cannot now turn around to claim for either pre–judgment interest or post-judgment interest.

On the Appellant’s submission on post-judgment interest and reliance on Order 35 Rule 7 of the High Court of Delta State (Civil Procedure) Rules 2009; Respondent contends that the word used is that the Court may order, in other words it is optional or discretionary and not mandatory. That the lower Court properly exercised her discretion in awarding the 10% interest per annum.
AKINBORO v LEMBOYE (2002) 10 NWLR (PT. 774) 65 AT 73 PARAS B -F (RATIO 1) was cited in submitting that that a Court is to dismiss a Plaintiff’s claim where the Plaintiff fails to discharge the onus placed on him.

The Respondent in arguing issue 3, replied the submissions of the Appellant’s issue 5. He cited LAMURDE LOCAL GOVERNMENT v KARKA (2010) 10 NWLR (PT. 1203) 574 AT 597 PARAS A – C (RATIO 9) in submitting that the Court can only consider the alternative relief where the principal relief cannot be supported by the evidence adduced and therefore not grantable.
Respondent further submitted that the Court will not just grant the alternative relief simply because the Appellant failed to prove the principal reliefs, the Appellant must sufficiently prove that he is entitled to same, this, the Appellant failed to do in the Court below.

He submitted that the trial judge rightly refused the principal reliefs of the Appellant. The trial judge found that the deed relied upon by the Appellant was an unsigned, worthless piece of paper which cannot confer title, that there was no witnesses to the transaction, the possession of the land claimed by the Appellant was never proved as the Respondent said he never led the Appellant into possession of the land; and the Court refused the order of specific performance because there was no binding contract between the parties.

On alternative relief (e), Respondent adopted and relied on his earlier submissions in issue 2.

On alternative relief (f), it is the contention of the Respondent that the Appellant did not suffer any discomfort, and if he did, it was not caused by the Respondent as the Respondent only drew the attention of the police to the threat to his life by the acts of the Appellant and nothing more. That he did not do so mala fide or in bad faith, COSMOS ONAH v DESMOND OKENWA (2010) 7 NWLR (PT. 1194) 512 AT 518 (RATIO 7).

On the Appellant’s reliance on SOLEH BONEH LTD v AYODELE (SUPRA); that where a trial Court fails to award damages, in a situation he ought to, the Court of Appeal will be entitled to award damages. The Respondent contends that that the above authority is inapplicable to this case as the lower Court did not fail to award damages but rather, there was no reason for her to award damages, as a party in breach of a contract cannot be awarded damages.
On the whole, Respondent urge the Court to dismiss the appeal with cost and affirm the judgment of the lower Court.

RESOLUTION.
I have perused the issues distilled by the Appellant and the Respondent as reproduced above in the judgment, and find that the Appellant and the Respondent’s issues are quite similar, however the Appellant’s issues would be adopted for the determination of the appeal as a resolution would have covered the field.

In resolving this appeal, issues 2, 3 and 4 would be resolved together. While issue 1 stands alone.
The crux of this appeal pertains to a sale of land. The parties in this appeal purportedly entered into an oral agreement for the sale of land of some plots (the exact number of plots uncertain) of the Respondent’s 12 – 13 plots of land in Ogunu community situate and lying behind Holy Trinity School/Ogunu football pitch, by Shell petroleum Development Company fence in Ogunu.

To resolve if the Appellant is entitled to an order of specific performance, the query is whether there was an agreed term of the agreement to sell or buy land between parties?
The Appellant in his statement of claim in paragraphs 3 – 5;
“3. The Claimant avers that sometime in the early part of 2013, the defendant approached him, offering for sale four (4) plots of land which when put together is approximately 200ft x 100ft. According to the defendant, he (defendant) was in serious need of money to settle his solicitors in respect of a law suit, hence the decision to offer the plots of land for sale.
4. The claimant agreed to purchase the said four (4) plots of land from the defendant, each of which is approximately 100 x 50 feet and which in total is 100ft x 200ft in size and/or dimension. The consideration for each of the four (4) plots and/or pieces of land is N1,200,000.00 (One Million, Two Hundred Thousand Naira). The total price and/or consideration for the said four (4) plots of land is N4,800,000.00 (Four Million, Eight Hundred Thousand Naira Only).
5. The claimant avers that he paid the defendant physical cash of N1,200,000.00 (One Million, Two Hundred Thousand Naira) in the month of March, 2013, and in the month of April, 2013, he transferred another sum of N2,800,000.00 (Two Million, Eight Hundred Thousand Naira) into the defendant’s bank account with United Bank for Africa PLC, Warri Branch. It was the agreement between the claimant and the defendant that the outstanding balance of the purchase price or consideration for the said piece of land in the sum of N800,000.00 (Eight Hundred Thousand Naira) will be paid upon the defendant executing the Deed of Assignment to be prepared by the claimant’s Solicitor.”
See pages 5 – 6 of the Record.

The Respondent in his Statement of Defence, paragraphs 2 – 6 stated thus;
“2. The Defendant denies paragraphs 3 & 4 of the Statement of claim and states that sometime in early March 2013, due to financial constraint on the part of the Defendant to settle his solicitors, he approached the Claimant also a native of Ogunu like him to loan him a sum of N1,200,000 (One Million Two Hundred Thousand Naira) to enable the Defendant pay his debts, the Claimant did give the Defendant the loan. However, towards the end of March 2013, the Claimant approached the Defendant and pleaded with the Defendant to convert the loan sum of N 1,200,000 (One Million Two Hundred Thousand Naira) already given to the Defendant to land as initial deposit.
3. Defendant pleads that even though he initially refused claimant’s plea, the Claimant insisted that the Claimant knows that the Defendant’s land case in Court had been settled and that the Defendant has several lands (sic) for sale. At this point, the Defendant then agreed with the Claimant to sell (three) plots of land measuring approximately 300ft x 50ft to the Claimant at N2,000,000 (Two Million Naira) per plot, making a total of N6,000,000 (Six Million Naira).
4. The Defendant further states that the Claimant having agreed with the Defendant, promised to pay the balance N4,800,000 in April 2013 before the Deed of Assignment can be executed.
5. The Defendant admits paragraph 5 of the Statement of Claim only to the extent that the Defendant received the sum of N1,200,000 and N2,800,000 transferred into the Defendant’s account. All the other averments are denied and the Claimant is put to strict proof of those assertions. In reply the Defendant avers that the balance sum for full payment was not N800,000 and there was no time the parties agreed that upon payment of the N800,000 the parties will execute the Deed.
6. The Defendant states further that when he received the alert for the sum of N2,800,000 transferred into his account by one Glory Ayiwe (relation to the Claimant), the Defendant visited the Claimant to ask why he should renege on his earlier promises to pay the total balance sum of N4,800,000. The Claimant then pleaded with the Defendant to give him a little time to upset the balance of N2,000,000. The Defendant further pleads that even the money transferred into the Defendant’s account was borrowed from his relation, Glory Ayiwe, who did the transfer into the Defendant UBA Account.”
See pages 27-28 of the Record.

The Respondent further averred in his counter-claim, paragraphs 21 – 25 thus;
“21. The Defendant is the bonafide owner of several plots of land situate and lying behind Holy Trinity school/Ogunu foot ball pitch, by Shell Petroleum Development Company fence in Ogunu within the Jurisdiction of this Honourable Court, by Virtue of Customary Inheritance from his father Owhofasa Eke.
22. Sometime in early March, 2013, the Defendant approached the Claimant to loan him the sum of N1,200,000 to enable Defendant settle debts which he owed his solicitors, this, the Claimant obliged him.
23. Defendant pleads that sometime in that same March 2013, the Claimant then pleaded with the Defendant to convert the money to land and it was finally agreed that the Defendant will sell 3 plots out of his several plots to Claimant at the cost of N2,000,000 each, making a total of N6,000,000 and that the balance of N4,800,000 shall be paid by the Claimant in the month of April 2013.
24. To the surprise of the Defendant, instead of the Claimant paying the sum of N4,800,000 as agreed, the Claimant paid only N2,800,00, promising to pay the balance N2,000,000 at another time.
25. However, when the Claimant brought the Deed, he had completely reneged from the initial agreement, and when the Defendant told him to correct the fraudulent errors, the Claimant resorted to threats to the Defendant’s life and also instigating the arrest and detention of the Defendant causing the Defendant to suffer untold hardship and damages.”
See pages 30 – 31 of the Record.

Unfortunately, this particular agreement was verbal, with no witnesses, therefore the Court in sifting through the findings of the lower Court and the evidence on record of parties, would have to first clear the hurdle of; what was binding and if same constitutes an agreement/contract.

Dangote Gen. Textile Products Ltd. & Ors. Vs Hascon Associates Nig Ltd. & Anor. (2013) 12 SCNJ 456; Akinyemi Vs Odu’a Investment Co. Ltd. (2012) 1 SCNJ 127. See also: Alfotrin Ltd. Vs A.G. Federation & Ors. (1996) 9 NWLR (Pt.475) 634 @ 656 H; (1996) LPELR-414 (SC) @ 29 B – D per Iguh, JSC, to wit: “To constitute a binding contract, there must be an agreement in that the parties must be in consensus ad idem with regard to the essential terms and conditions thereof; the parties must intend to create legal relations and the promise of each party, in a simple contract, not under seal, must be supported by consideration. There must be a concluded bargain which has settled all essential conditions that are necessary to be settled and leaves no vital term or condition unsettled.” (underlining mine) per KEKERE – EKUN, JSC (PP. 14 – 17, PARAS. F – A)
In INCORPORATED TRUSTEES OF ROH EMPIRE MISSION v OPARA (2017) LPELR – 42463 (CA), this Honourable Court held on the essentials of a valid contract thus;
“A contract is a legally binding agreement between two or more persons, by which rights are acquired by the party, in return for acts or forbearance, on the part of the other. It is a bilateral affair(sic), which requires consensus “ad idem” of the parties. See Odutola vs Papersack Nig Ltd (2006) 18 NWLR (pt 1012) 470; Orient Bank (Nig) Plc vs Bilante Int’l Ltd (1997) 8 NWLR (PT.515) 37; Ashaka vs Nwachukwu (2013) LPELR- 20272 (CA). See also Alfa System Com. Ltd & Ors vs Keji Orisajimi & Ors (2016) LPELR – 40295 (CA), on the five essentials of a valid contract, namely, offer, acceptance, consideration, intention to create legal relationship and capacity to contract, and all the five ingredients must co-exist, before a valid contract can exist. Okubule vs Oyagbola (1990) 4 NWLR (pt.147) 723. Amana Suite and Hotel Ltd vs PDP (2007)6 NWLR (pt.1031) 453.” (underlining mine) per MBABA, JCA (PP. 27 – 28, PARAS. D – B)
See also; AMADI v OBIAJUNWA (2016) LPELR – 40461 (CA); OSIKI v INT’L PORTS LTD (2015) LPELR – 24435 (CA); ESENOWO v SAM (2013) LPELR – 21130 (CA).
From the above depositions of the parties, it can be culled that; there were different offers, both parties did not accept the terms of the offer or set different terms that were not agreed to by both parties. What then is the valid contract binding both parties?
The Respondent in his Counter-claim stated that it was agreed that he would sell 3 plots of 300ft x 50ft out of his several plots to the Appellant at the cost of N2,000,000 each , making a total of N6,000,000. However, the Appellant stated in his statement of claim that he agreed to purchase four (4) plots of land from the Respondent, each of which is approximately 100 x 50 feet and which in total is 100ft x 200ft in size and/or dimension. The consideration for each of the four (4) plots and/or pieces of land is N1,200,000.00 (One Million, Two Hundred Thousand Naira). The total price and/or consideration for the said four (4) plots of land is N4,800,000.00 (Four Million, Eight Hundred Thousand Naira Only).
It seems that there were two offers on the table, but an initial deposit was paid before the different positions came up. However, since the vendor (Respondent) is the one selling the land, and at the point of near conclusion, the Appellant made what amounted to a counter offer and it now became obvious that there were no firm agreement on the size of the land to be sold, prize of each land thereby affecting the balance to be paid and resulting in a conflict in terms.
It is clear at this point that the parties, despite an initial deposit, had no binding terms in law to amount to a valid contract, see; CLEMENTINA M. OGUNNIYI v HON. MINISTER OF FCT & ANOR (2014) LPELR – 23164 (CA); AMANA SUITS HOTELS LIMITED v PEOPLES DEMOCRACTIC PARTY (2006) LPELR – 11675 (CA).

Both parties are not ad idem on the total consideration sum, both parties have deposed to different considerations for the sale of the lands. The solicitors’ letters exchanged by parties brings the conflict in the fore front; Exhibit A; a letter from the Respondent’s Solicitor dated 18th September, 2013 to the Appellant, explicitly conveys the Respondent’s rejection and termination of the purported oral agreement between the parties thus;
“Therefore, our client by right TERMINATES THE ORAL AGREEMENT between the both of you forthwith, and gives you seven (7) days from the above stated date to collect back all your initial deposits of the sum of N4,000,000 (Four Million Naira Only) which he will return to you.
We therefore strongly advise you to take advantage of this opportunity and give peace a chance”
See page 198 of the record.

I cannot over emphasize the importance of acceptance in an agreement. See OLASEINDE & ORS v FHA & ORS (2015) LPELR – 24532 (CA), per OBASEKI – ADEJUMO it was held that;
“A contract encompasses an offer and acceptance upon agreed consideration between two or more parties. All these ingredients must be present at the same time for a valid contract to exist. It is trite law that an offer must be accepted in order to crystallize into contract. See NNEJI v ZAKHEM CON (NIG) LTD(2006) 12 NWLT (PT. 994) 297.” (underlining mine)
(PP. 13 – 14, PARAS. D – A).

Both offers were rejected by the individual parties, as can be implied by the actions of the Appellant in an initial deposit of the part payment of N 4,000,000 (Four Million Naira), and further submitting that the outstanding sum was N 800, 000 (Eight Hundred thousand), together with the express rejection and subsequent termination by the Respondent as gleaned from Exhibit A. I query again; what then is the valid contract binding the parties?

The Appellant had relied on the cases of INTERNATIONAL TEXTILES LTD v ADEREMI (SUPRA) and MUSTAPHA v ABUBAKAR (SUPRA). We have perused these cases and find that they are not on all fours with the facts in this appeal and are therefore inapplicable. In INTERNATIONAL TEXTILES LTD v ADEREMI (SUPRA), there was a valid contract between the parties and this contract was still subsisting as at the time of the breach, while in MUSTAPHA v ABUBAKAR (SUPRA) as earlier cited, the full or part payment of the purchase price must be the agreed price by the parties and the Appellant must have been put into possession by the Respondent.

Again, it is a fact from both parties that the land had been sold to 3rd parties, whose interest would be affected by any such order. and none of them are parties herein.

I therefore agree with the conclusion of the lower Court that an order of specific performance cannot be made in the circumstances of the facts of this case.
I resolve issue 1 in favour of the Respondent.

On issue 2 (which is a combination of issues 2, 3 and 4 of the Appellant’s issues), on whether the Appellant is entitled to pre – judgment interest, on the grounds that the Respondent having kept the money for a long period and till date unjustifiably, which could have been sufficient for the Appellant to put his money into other meaningful ventures and derive profits therefrom, as contended in his brief, he relied on heavily on A. G. FERRERO & CO. LTD v HENKEL CHEMICALS (NIG) LTD (SUPRA).

It is trite law that a claim for pre–judgment interest is an interest as of right, but it must be specifically claimed and evidence adduced in proof of it.
In ISAAC SHEDOWO v ATTORNEY GENERAL OF LAGOS STATE (2019), this Honourable Court held thus;
“Now, there are two types of interest usually awarded by a Court, namely pre-judgment interest otherwise known as ‘interest as of right’ 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. The disceptation(sic) herein is on pre-judgment interest. Pre-judgment interest must not only be specifically claimed, but evidence must be adduced in proof of 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 the 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, 124-125, BERENDE vs. USMAN (2005) 14 NWLR (PT 944) 1 and BERLIET NIGERIA LTD vs. KACHALLA (1995) 9 NWLR (PT 420) 478. There is nothing in Exhibit C7 which provides for, or contemplates the payment of interest; furthermore there is nothing in the evidence on any mercantile custom or breach of any equitable principle on which the Appellant would be entitled to award of pre-judgment interest. Put simply, the Appellant did not(sic) adduce any credible evidence entitling him to pre-judgment interest: REO ENTERPRISES vs. NWOSU (2007) 11 WRN 16 at 33 and R.C.C. (NIG) LTD vs. ROCKONOH PROPERTY CO. LTD (2005) 10 NWLR (PT 934) 615 @ 640-641. The Appellant’s ipse dixit that the interest payable on such amount, if put in a fixed deposit, hovers between 15% -25% does not establish the rate of interest which is fixed by the Central Bank of Nigeria (CBN) Monetary Policy Rate (MPR). There is no whit, iota or scintilla of evidence in proof of the CBN MPR as it relates to interest rate of 20% claimed by the Appellant. The lower Court was right in not awarding the pre-judgment interest claimed as the same was not proved.” (underlining mine) per OGAKWU, JCA (PP. 30-31, PARAS. B – E).
See also; COAST OIL LTD v TUBOSCOPE VETCO INTERNATIONAL & ANOR (2019) LPELR – 46450 (CA); NPA v AMINU IBRAHIM & CO & ANOR (2018) LPELR – 44464 (SC); SOUTH AFRICAN AIRWAYS v UBANI & ANOR (2018) LPELR – 46717 (CA).
Also, in A.G FERRERO & COMPANY LTD v HENKEL CHEMICALS NIGERIA LTD (2011) LPELR – 12 (SC), it was held thus;
“The principle relevant to the issue under consideration had been laid down in a number of cases thereby becoming settled law that a claim for pre-judgment interest may be made by a plaintiff as a right where it is either expressly provided for in or is contemplated by the agreement between the parties or under a mercantile custom, or under a principle of equity such as breach of fiduciary relationship. It follows that before a party can claim pre–judgment interest, he has to plead not only his entitlement to the interest but the basis of the entitlement either by statute or contract/agreement between the parties, or mercantile custom or principle of equity such as breach of fiduciary relationship. It is not for the Court to speculate or conjecture or assume the facts relevant to the claim. The relevant facts must be pleaded, as facts not pleaded go to no issue. If the plaintiff must adduce evidence at the trial in proof of the facts, the plaintiff must adduce evidence at the trial in proof of the relevant facts. Where there is no evidence in proof of the facts, then the pleadings are deemed abandoned.” (underlining mine) per ONNOGHEN, JSC (PP. 20 – 21, PARAS C – A).
See also; SANI ABACHA FOUNDATION FOR PEACE AND UNITY & ORS v UBA PLC (SUPRA); DANIEL HOLDINGS LTD V UBA PLC (2006) LPELR – 922 (SC).
Therefore, from the evidence adduced and pleadings of parties, pre-judgment interest was not contemplated by the parties in their agreement or any statue, furthermore the Respondent terminated the purported contract; see Exhibit A, at page 198 of the record.

The Appellant’s Solicitors in reply wrote a letter dated 6th March, 2014 – Exhibit A1, stating that;
“There is no doubt that a deed of conveyance was to be executed in our client’s favour but this was to be done after the payment of the balance N 800, 000 (Eight Hundred Thousand Naira).
We would advice your client to come and collect his balance and conclude the agreement as between him and our client is not willing to give up on the property already acquired by him or in the alternative pay to our client the sum of N 25,000,000 (Twenty Five Million Naira) for the inconveniences suffered by our client.
You are adviced to seek wise counsel.”

Flowing from the above facts and cited authorities, the case of A.G FERRERO & COMPANY LTD v HENKEL CHEMICALS NIGERIA LTD (2011) (SUPRA) is distinguishable from the facts of this case, hence it is inapplicable. There was no agreement put before the Court, neither executed land documents, except for the solicitors’ letters which show conflicting terms, even at that; there was no demand for interest made except the N 25,000,000 (Twenty-Five Million Naira) demanded.
In SAMELLO INVESTMENT LIMITED v NIGRIA INTER – BANK SETTLEMENT PLC (2019) LPELR – 48852 (CA), the Court held that it is not enough to claim the additional interest in writ without pleading facts in support. See; TEXACO OVERSEASAS UNLIMITED v PEDMAR (NIG) LTD (2002) 13 NWLR (PT 785) P526 AT 547 PAR D-F.
There is no shred of fact in support of the claim in relief (e), therefore, the lower Court rightly refused this claim for a pre – judgment interest in this instance.

On the interest of 10% granted by the lower Court on the judgment debt, the Appellant has complained that the lower Court did not apply Order 35 Rule 7 of the High Court of Delta State (Civil Procedure) Rules, 2009; which provides that;
“The Court at the time of making any judgment or order, or at any time afterwards, may direct the time within which the payment or other act is to made or done, reckoned from the date of the judgment or order, or from some other point of time, as the judgment or order, or from some other point of time, as the Court thinks fit, and may order interest at a rate not exceeding 20% per annum to be paid upon any judgment commencing from the date thereof or afterwards, as the case may be.” (underlining mine)
The bone of contention here is the 20% not awarded by the lower Court; I must state clearly that from the wordings of the rules of Court reproduced earlier:
“…the Court may order an interest at a rate not exceeding 20% per annum…’’
It leaves the Court with the discretion of deciding the rate which must not be more than 20%, it is not a mandatory award, it depends on what the trial Court deems fit. In MODIBBO v HAMMANJODA (2014) LPELR–24184 (CA) JAURO, JCA held;
“The 10% interest awarded by the lower Court is a post judgment interest and falls within the powers conferred upon the Court by the above provision to award at its discretion. The Court is therefore clothed with jurisdiction to award…” per JAURO, J.C.A (P. 22, PARAS. A – D).
It must be placed on record that as stated as one of the criteria for award by GARBA, JCA in NATIONAL UNION OF ROAD TRANSPORT WORKERS & ORS v FIRST CONTINENTAL (2019) LPELR – 48005 (CA), that when an award is fixed by statue, rules of Court or even equity, it is at the discretion of the Court to exercise, taking into account the peculiar facts and circumstances of the case, judicially and judiciously at all time. The law does not require that it be specifically pleaded and/or proved by way of evidence. see HIMMA MERCHANTS LTD v ALIYU (1994) 5 NWLR (PT 347) 667; INTERNAL TRUST BANK PLC v KAUTAL HAIRU COMPANY LTD (2006) 3 NWLR (PT 968) 443, JALLCO LTD v OWONIBOYS TECHNICAL SERVICES LTD (1995) 4 NWLR (PT 391) 534.

The lower Court further held in its judgment thus;
“On whether the Claimant is entitled to other reliefs, the Claimant testified that claimant(sic) called him to collect his money and he refused. There is also no dispute as to the amount of money collected by the Defendant. It is in my view that the Claimant is entitled to refund of his money and nothing more. On the whole, the claim of the Claimant succeeds only as to refund of his N 4,000,000 (Four Million Naira) without interest. While the other reliefs fail.”
See; page 184 of the record.

I must say that this Court cannot ignore the implication of leaving such a huge sum in the hands of the Respondent rightly or wrongly for a period of about 7 (seven) years, coupled with the rising cost of inflation, consequential effects on the cost of acquiring an alternative land.

In this light, there is abundant evidence on record that the money was paid in 2013 and throughout the High Court trial, no attempt was made to return same by way of cheque or paying into Court till date.
The Respondent admitted under cross examination that he had various bank accounts and that the money is not in the bank but he cannot produce same. This piece of evidence leaves a lot to be desired and is evasive. Now he needed not to know the bank details of the Appellant, when the solicitor terminated the sale, all he had to do, in all sincerity, was to attach a bank draft/cheque together with the letter of termination. It is not enough to state by word of mouth that “I asked him to come and collect his money but he refused’’, this is not commonsensical in this day and age.

I am convinced that if properly invested, it would have yielded profit and compensated him. The money has been in the hands of the Respondent doing what? He is not a bank or an investment company, I am of the firm view that this amounts to unjustified punishment and a party benefitting from the act.

I am still of the firm view, that the lower Court in the light of the highlighted peculiar circumstances above in the record, awarded what in her discretion which was on a scale of 1 – 20% and awarded 10% under the Delta State Rules of Court.
I do not see and the Appellant has not convincingly demonstrated the injustice meted out to it by the exercise of the learned trial judge’s discretion in this matter.
Therefore, I have no reason whatsoever to interfere and tamper with this exercise of discretion in the award of post interest at the rate of 10% per annum in favor of the Appellant.

On the second aspect of this issue, I have reservations on the timing of the effective date of this interest which the lower Court put as from “July, 2016” this to my mind is vague. The guessing game is when in July? Is it beginning or ending, this leaves room for greater controversy in computation of the interest; it should not be left to conjecture!
In UMO v UDONWA (2012) LPELR – 7857 (CA); GARBA, JCA held thus;
“… A party to a case may ask for any amount or percentage of the judgment debt as post judgment interest, but the award by the Court must be in accordance with the Rules of Court regulating the award. It is not like pre-judgment interest which may depend on pleadings and evidence adduced by the parties before the Court.”
(PP. 18 – 19, PARAS. F – B)
There are no reasons given in the judgment for the postponement of the operation of the payment of the percentage of interest awarded therefore, or the option of paying within 30 days. Its trite that a judgment takes effect from that date.
In AGBONENI v ALAKIU (2018) LPELR-44807 (CA); OGAKWU, JCA held thus;
“…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 that the Appellant is entitled to the sum of N 7,000,000.00 which he paid to the Respondent for a consideration that totally failed. The power of a Court to award post-judgment interest is usually exercised when the Court has pronounced its judgment in 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 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 3rd March 2016, the date of the judgment of the Lower Court, since the Appellant was entitled to judgment being entered in his favour as at that’’
I therefore set aside the option in the judgment and the operative date for the payment of 10% interest, awarded by the lower Court and instead award a post judgment interest of 10% from the date of the judgment which is of 3rd June, 2016, to meet the justice of the case. see UNITY BANK PLC v CHIEF S. U. NWADIKE & ANOR (2008) LPELR – 5067 (CA)

I resolve issue 2 dealing with interest awarded in favour of the Appellant, while issues 3 & 4 are against the Appellant.

On issue 5, the Appellant submitted that the Court can only consider the alternative relief where the principal relief cannot be supported by the evidence adduced.
The Supreme Court held in METAL CONSTRUCTION (W.A.) LTD v ABODERIN (1998) LPELR – 1868 (SC) thus;
“…either party to a suit may, in a proper case, include in its pleadings alternative and inconsistent allegations of material facts as long he does so separately and distinctly…’’
per IGUH, JSC (PP. 13 – 14, PARAS. E – C).
Also, in NNPC v CLIFCO NIG LTD (2011) LPELR – 2022 (SC), the apex Court held;
“It is well said that when the main claim fails, the Court should consider the alternative claim and if found to be proved, justified or sustainable, grant it….’’
per RHODES-VIVOUR, JSC (PP. 21 – 22, PARAS. F – A).
In the light of the above authorities, the lower Court was right in dealing with the alternative claim, after she held that there was no proof of a valid contract or agreement upon which to base an order for specific performance which is the basis of the main claim.
Having diligently evaluated the evidence on record and found same insufficient to prove the main claim, the lower Court had a duty in law to examine the alternative claim, furthermore the reason for the failure of the claim was not the fact that the Appellant when asked to collect the refund refused to do same, but the clear findings that there was no agreement on terms of the alleged agreement for sale of the land.

The Appellant made a claim for N25,000,000 (Twenty Five Million Naira) for general damages for breach of contract; relief (g), the lower Court refused to consider same, this in my view would be contrary to the findings of the Court in that, where no breach of contract has been found there cannot be an award of damages for same.
I resolve issue 5 against the Appellant.

Having resolved the above issues in part against the Appellant, the appeal is allowed in part. I affirm the Judgment of the lower Court save for varying the time within which to pay the judgment debt and the operative date of the post judgment interest awarded.
For clarity purposes is hereunder reproduced;
The Respondent/Defedant is hereby ordered to refund the sum of N4,000,000(four million naira) to the Appellant/Claimant forthwith with interest at the rate of 10% per annum from the date of the judgment of 3rd of June, 2016 till liquidation of the judgment sum.
Parties to bear their costs.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the leading judgment prepared by my learned brother, ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA. and I cannot but say that I agree entirely with the resolution of the issues considered in the said leading judgment.
I will however wish to state that the attempt by the Appellant to have the post-judgment interest awarded by the lower Court raised to 20% would appear to be one designed to procure for the said Appellant an award of interest that would take care of the claim for pre-judgment interest which the lower Court rightly dismissed. It is clear from the case of EKWUNIFE V. WAYNE WEST AFRICA LTD (1989) LPELR-1104(SC), that the award of post-judgment interest as provided for under the Rules of the lower Court, is at the discretion of the said Court. The rules of the lower Court as quoted in the leading judgment provides for the maximum interest the said Court can award in respect of a judgment debt. There is no provision for a minimum therein. I am therefore of the considered view that the lower Court (depending on the circumstances of a case) might even decide not to make an order in respect of the interest to be paid in relation to a judgment debt and where it decides to award such an interest, the rate of such interest is at its absolute discretion. The Appellant never showed that it placed any evidence regarding the prevailing interest rate before the lower Court. The lower Court in its discretion awarded an interest rate at 10% on the judgment in the instant case.

The law is settled that the exercise of discretion by a Court bona fide is not to be interfered with by an appellate Court. Except a where a lower Court in exercising its discretion in a particular case did so under a mistake of law (substantive or procedural), or upon a misapprehension of the facts before it, or considered irrelevant things or the exercise of discretion has worked injustice to either or both of the parties before it, the aforestated position remains inviolate even if the appellate Court would have exercised the discretion differently, if it was the Court vested with the discretion nor would it substitute its view for that trial Court. See the cases of OKORO V. ELEKWANYA (2018) LPELR-45071(CA) and DANA AIRLINES LTD V. AIKHOMU (2019) LPELR-48949(CA).
Suffice it to say that despite the sentiments expressed in leading judgment in the consideration of this issue, (even though the said issue was resolved against the Appellant), I have considered the facts and circumstances of the instant case and I am unable to see any perversity or wrongness in the exercise by the lower Court of its discretion in awarding 10% per annum post-judgment interest, in favour of the Appellant, in the instant case. The aforesaid award in my considered view was not exceedingly low. The Appellant in my considered view has not convincingly demonstrated the injustice meted out to him by the exercise of discretion by lower Court in the manner it did in the instant case.
Therefore, I too, have no reason whatsoever to interfere and tamper with the exercise of discretion by the lower Court in the award of post-judgment interest at the rate of 10% per annum, in favour of the Appellant. However, as I do not see any legal basis for the lower Court deferring the date of the application/commencement of the interest granted to the Appellant to a future or later date, from the date of the judgment; I am at one with the variation of the order in relation to the post-judgment interest as contained in the leading judgment.
In conclusion, I too, allow the instant appeal in part and abide by the other orders contained in the leading judgment.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree and adopt wholly the leading Judgment of my learned brother, Abimbola Osarugue Obaseki-Adejumo, allowing the appeal in part and the order relating to “contingent” interest as made.

It is, however, my view that the circumstances of this case are such that if the respondent must avoid the payment of interest on the adjudged judgment sum, that principal sum in the specific sum of N4,000,000 shall be paid within 14 days from today, as the conduct of the Respondent in unduly and prolongedly withholding or holding on to the money after the aborted or rescinded contract, repudiated by him, upon his legal entitlement/election to so do, was undue.

Appearances:

Chief V. E. Otomiewo, with him, E. O. Otomiewo For Appellant(s)

A. Oboreh For Respondent(s)