FAKIYE v. PETER (2022)

FAKIYE v. PETER

(2022)LCN/16551(CA)

In The Court Of Appeal

(ADO-EKITI JUDICIAL DIVISION)

On Tuesday, March 15, 2022

CA/EK/44/2020

Before Our Lordships:

Theresa Ngolika Orji-Abadua Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Abdul-Azeez Waziri Justice of the Court of Appeal

Between

MR. AUGUSTINE ADEBAYO FAKIYE APPELANT(S)

And

MR. KOLAWOLE OLUGBENGA PETER RESPONDENT(S)

RATIO:

THE SETTLED LAW ON HOW AN APPELLATE COURT APPROACHES AN APPEAL AGAINST THE AWARD OF DAMAGES

The law is settled on how an appellate Court approaches an appeal against award of damages.
According to MUHAMMAD JSC in UBN PLC v. CHIMAEZE (2014)9 NWLR Pt 1411 p. 166:
“This Court has held in a seemingly endless body of cases that, it is not the business of the appellate Court to interfere with general damages awarded by the trial Court unless it is satisfied that the trial Judge had acted upon some wrong principle in the award of such damages or that the amount awarded was so large or so small as to make it a completely erroneous assessment of the damages. See ONAGA v. MICHO & CO (1961)1 ALL NLR 101 AT105-106, IFEANYI-CHUKWU CO LTD v. AKHIGBE (1999) 7 S.C (PT)1, ODOGU v. A.G FEDERATION (1996)6 NWLR (PT 456) 508 AND IMAH v. OKOGBE (1993)12 SCNJ. 57.” See also AKINKUGBE v. EWULUM HOLDINGS (NIG) LTD & ANOR (2008)12 NWLR (PART1098)P. 375. TUNDE OYEBANJI AWOTOYE, J.C.A

TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by the Appellant in respect of the decision delivered by the High Court of Justice, Ekiti State on 3/4/2019 in Suit No: HAD/73/2016.

By paragraph 20 0f his Statement of Claim, the Claimant claimed against the Defendant (now Appellant) as follows:
a. An order of Court for payment of the sum of Two Million, One Hundred and Eighty Thousand Naira (₦2,180,000.00) only being Defendant’s indebtedness to the Claimant in respect of a failed contract/land sale agreement. Alternatively, on order of Court that the Claimant is entitled to sell the Defendant’s land and building which is covered by Statutory Right of Occupancy registered as Number 37 at page 37 in Volume 621 at the Land Registry, Ekiti State, lying, being and situate at Number 37, Moferere Street, Ado-Ekiti, Ekiti State in satisfaction of the said debt having pledged and secured the said debt with the said land and building.
b. The sum of Nine Hundred Thousand Naira (₦900,000.00) only being special damages for money received in respect of a failed contract/land sale agreement as shown by the Land Sale Agreement, Affidavit of Transfer/Allocation of land and the land Purchase Receipt duly executed between the parties and their witnesses for which the Claimant paid Nine Hundred Thousand Naira ((₦900,000.00) only.
c. Twenty Million Naira ((₦20,000,000.00) only being general damages for breach of agreement baby the Defendant to the Claimant.
d. A perpetual injunctive order restraining the Defendant and whosoever that is acting for and on his behalf from further violating the Claimant’s right.

Parties filed and exchanged pleadings. After hearing the parties, the learned trial Judge entered judgment in favour of the Claimant in the following terms:
“In all, the sole issue for determination is resolved in favour of the Claimant with the implication that the Claimant had succeeded in proving his claim against the Defendant. I accordingly order as follows:
1. An order of Court for payment of the sum of ₦1,780,000:00 being the Defendant’s indebtedness to the Claimant in respect of a failed contract/land sale agreement so hereby granted.
2. The sum of ₦900,000:00 being special damages for money received in respect of a failed contract/land sale agreement as shown by the Land Sale Agreement, Affidavit of Transfer/Allocation of land and the land Purchase Receipt duly executed between the parties for which the Claimant paid the sum of ₦900,000:00 is hereby granted.
3. The sum of ₦200,000:00 is hereby awarded the Claimant, against the Defendant as general damages for breach of agreement by the Defendant to the Claimant.
Mr. Ochai asks for ₦450,000:00 cost in that this matter was filed about three years ago with 45 appearances in all.
Mr. Akomolafe submitted that the Claimant illegally executed a default judgment which elongated the number of appearances. He offered the sum of ₦20,000:00 as costs.
Court: Cost is hereby assessed at ₦50,000:00 in favour of the Claimant.”

Dissatisfied with the said judgment, the Appellant filed a Notice of Appeal containing seven (7) grounds of appeal.
GROUND 1
The learned trial Judge erred in law by holding that the Respondent’s claim succeed without fully evaluating all evidence placed before it.
GROUND 2
The learned trial Judge erred in law when he refused to uphold and evaluate the terms of the agreement in Exhibit 3, freely entered into by the parties on 16th February, 2016.
GROUND 3
The learned trial Judge erred in law when he granted special damages of Nine Hundred Thousand Naira (₦900,000:00) only, on the basis of the Exhibit 3, freely entered into by the parties on 16th February, 2016.
GROUND 4
The learned trial Judge erred in law when he held that the Appellant is a fraudulent person. After the Appellant has agreed to pay Two Million, One Hundred and Eighty Thousand Naira (₦2,180,000:00) only and has paid Four Hundred Thousand Naira (₦400,000:00) only on the basis of the pledge.
GROUND 5
The learned trial Judge erred in law and fact when he held that the Appellant breached the agreement between him and the Respondent.
GROUND 6
The learned trial Judge erred in law when he held that “I do not believe that there was any condition precedent to be fulfilled by the Claimant before instituting this suit” in a case for recovery of debts on failed contract.
GROUND 7
The judgment is against the weight of evidence. Record of appeal was subsequently transmitted to this Court after which parties filed and exchanged briefs of argument.

BRIEFS OF ARGUMENT
The Appellant’s brief of argument was filed on 7/7/2021 but deemed filed on 12/11/2021. The said brief was settled by his counsel PAUL O. AKOMOLAFE.

Learned counsel formulated one sole issue for determination to wit:
“WHETHER FROM THE STATE OF PLEADINGS AND EVIDENCE, THE LEARNED TRIAL JUDGE WAS RIGHT TO HAVE GRANTED RELIEFS 2 AND 3 OF THE CLAIM AND WHETHER SUCH GRANT HAS OCCASSIONED A MISCARRIAGE OF JUSTICE.”

The Respondent’s brief of argument, settled by his solicitor SUNDAY J. OCHAYI was filed on 16/2/2022 and deemed filed on the same date. Learned counsel proposed one sole issue for determination thus:
“WHETHER FROM THE STATE OF PLEADINGS AND EVIDENCE, THE LEARNED TRIAL JUDGE WAS RIGHT TO HAVE GRANTED RELIEFS 2 AND 3 OF THE CLAIM AND WHETHER SUCH GRANT HAS OCCASSIONED A MISCARRIAGE OF JUSTICE.”

SUBMISSIONS OF COUNSEL
I have deeply considered the submission of learned counsel on both sides. The issues formulated by both counsels are the same. I also adapt the issue for the determination of this appeal.

SOLE ISSUE
WHETHER FROM THE STATE OF PLEADINGS AND EVIDENCE THE LEARNED TRIAL JUDGE WAS RIGHT TO HAVE GRANTED RELIEFS 2 AND 3 OF THE CLAIM AND WHETHER SUCH GRANT HAS OCCASSIONED A MISCARRIAGE OF JUSTICE.

Under this issue, the Appellant seeks to challenge the grant of reliefs 2 and 3 of the claim by the learned trial Judge. In essence, the compliant of the Appellant is in respect of the damages awarded in favour of the Respondent.

The Appellant attaches reliefs 2 and 3 granted by the learned trial Judge.

Relief 2 of the claim of the element is the sum of Nine Hundred Thousand Naira (₦900,000k) being special damages for money received in respect of failed contract/land sale agreement.

The Claimant in his adapted statement on oath deposed as follows in paragraphs 4 as follows:
“That in strong opposition to paragraph 7 of the Statement of Defence, I further know as facts as follows:
a. That the Defendant had no land at opposite Atlas Hotel Along Ikere Road, Ado-Ekiti, Ekiti State for sell.
b. That the Defendant claimed/alleged that he carried out survey works for the land owning family and in exchange for monetary payments, the land owning family gave him some portions of land, part of which Defendant allegedly sold to me.
c. However, when the Defendant took me, Mr. Adeoba, Deacon Bayo, Elder Durogbola and my solicitor to the land, it was obviously discovered and noticed that the Defendant had no land thereat.
d. During the said visit to the land along Ikere Road, Ado-Ekiti, Ekiti State, Defendant failed woefully to show the persons present any particular land which exclusively belongs to him thereat.
e. Till date, Defendant has not given me the family receipt to the land along Ikere Road, Ado-Ekiti, Ekiti State.
f. Defendant is a mere land grabber, comment, speculator and a fake vendor.
g. Defendant has no land along Ikere Road, Ado-Ekiti, Ekiti State to transfer ownership and title to me whatsoever.
h. I am therefore entitled to a refund of my Nine Hundred Thousand Naira (₦900,000.00) only with the Defendant in respect of that failed transaction.”

The learned trial Judge in his judgment accepted the evidence of the Claimant and disbelieved that of the Defendant.

His lordship found as established the claim for special damages of ₦900,000.00 and granted the claim for special damages. I find the reasoning and finding of the learned trial Judge who saw and heard the witness unquestionable. I cannot disturb the findings and the award of damages as the learned trial Judge acted upon right principles in doing so.

On general damages awarded, I am of the view that it is neither large nor too low. The Claimant claimed ₦20,000,000 (Twenty Million Naira) as general damages, the learned trial Judge awarded ₦200,000.00k as general damages for breach of agreement.

Did the learned trial Judge in awarding the damages for breach of contract act on right principles?

Damages for breach of contract are awarded based on the principle of RESTITUTIO IN INTEGRUM-that is, the Claimant shall be restored as far as money can do it into the correct position he would have been if the breach had not occurred. See ATIVIE v. KABELMETAL (NIG) LTD (2008)10 NWLR PART 1095 PAGE 395.
According to ONNOGHEN JSC (as he then was) in ATIVIE’S case (supra):
“It is in line with the above principle that award of damages in breach of contract cases should be such as:
a. May fairly and reasonably be expected to arise naturally i.e according to the usual course of things from such breach of contract itself or
b. May reasonably be supposed to have been in contemplation of both parties at the time they made the contract as the probable result of the breach of it – see OKONGWU v. NNPC (1989)4 NWLR (PT115)290 AT 299”

In assessing the general damages. The learned trial Judge held as follows:
“It is not in doubt that the Defendant breached the contract between him and the Claimant resulting in the loss of fund. It is also not in doubt that the Claimant got a default judgment in respect of this suit on 22nd May, 2017 before FOWE J. the said default judgment was however set aside by this Court on 4th June, 2018 after the matter was reassigned to me. It was only after this that the matter was tried on the merit. Against this background definition of the word ‘Damage’ in law, I believe that I have to factor in all these while considering the amount to be awarded by way of general damages.”

The above reasoning of the learned trial Judge cannot be faulted. I am of the view that his lordship acted on right principles in awarding the said general damages which I also consider not to be excessive.

This appeal lack merit in the light of the above. I resolve the sole issue against the Appellant.

I dismiss this appeal accordingly but affirm the judgment of the lower Court delivered on 3/4/2019 in Suit No: HAD/73/2016. I award ₦300,000.00k costs in favour of the Respondent.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.

ABDUL-AZEEZ WAZIRI, J.C.A.: My learned brother, T.O. Awotoye, JCA, who just delivered the lead judgment dealt extensively with the sole issue nominated for determination in this Appeal and adopt his reasoning and conclusion which captures my views.

It is for this reason and other reasons in the lead judgment that I join in dismissing the appeal and affirm the judgment of the lower Court. I also abide by the order of costs made therein in favour of the Respondent and against the Appellant.

Appearances:

Paul O. Akomolafe, Esq. For Appellant(s)

KoredeOnipede, Esq. For Respondent(s)