NIGERIA POLICE FORCE & ORS v. KABIRU AHMADU
March 31, 2025BALA YAHAYA v. HARUNA UMARU
March 31, 2025Legalpedia Citation: (2020) Legalpedia (CA) 17147
In the Court of Appeal
HOLDEN AT LAGOS
Thu Jul 16, 2020
Suit Number: CA/L/807/2017
CORAM
PARTIES
MR. DAN NGEREM
CROWN REALTIES PLC
AREA(S) OF LAW
Not Available
SUMMARY OF FACTS
The origin 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 Respondents 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. 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 seeking declaratory and injunctive reliefs, an order of specific performance among other reliefs. The lower Court in its judgment dismissed the Appellants suit in its entirety. The Appellant was dissatisfied with part of the judgment of the lower Court and appealed against the same on the refusal to award damages for breach of contract and dismissal of the Appellants alternative claims for refund of excess money paid to the Respondent plus interest and damages.
HELD
Appeal Allowed
ISSUES
Whether the Learned trial judge erred in law when he held that there were no clear pleading and evidence in support of the appellants 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 defendants 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? 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? 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? Whether the learned trial judge was right when he dismissed the Appellants alternative claims for the sum of N44, 911, 914.50 on the ground of lack of clear pleading and evidence in support of same. 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. Whether the learned trial judge was right when he dismissed the Appellants claim for damages for breach of contract.
RATIONES DECIDENDI
DAMAGES FOR BREACH OF CONTRACT – BASIS ON WHICH AN APPELLANT WILL 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 also Yadis (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.
BREACH OF CONTRACT – LEGAL POSITION AS TO THE CONSEQUENCE AND EFFECT OF A BREACH OF CONTRACT
“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 Halsburys (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.
BREACH OF CONTRACT – EFFECT OF CONDONING A BREACH OF CONTRACT BY A PARTY
“In the circumstances of this matter, the Appellant, having kept the contract alive by condoning the Respondents 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 Appellants 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 Respondents failure to meet the stipulated timelines) but for the Appellants 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”.
APPRAISAL OF EVIDENCE- IMPLICATION OF A TRIAL COURT’S FAILURE TO PROPERLY APPRAISE EVIDENCE
“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!
ADMITTED FACTS – STATUS OF FACT ADMITTED BY A DEFENDANT IN HIS PLEADINGS
“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 .
INTEREST – TYPES OF INTEREST
“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.
GRANT OF PRE-JUDGMENT INTEREST – WHETHER A COURT CAN GRANT PRE-JUDGMENT INTEREST WHERE A PARTY DID NOT ADDUCE EVIDENCE IN PROOF OF SUCH CLAIM
“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.
INTEREST – WHETHER A CLAIMANT IS ENTITLED TO INTEREST IN A CLAIM FOR RETURN OF MONEY WHERE THE DEFENDANT HAS HELD THE MONEY OF THE CLAIMANT OVER A PERIOD
“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).
POST-JUDGMENT INTEREST – MEANING OF POST-JUDGMENT INTEREST
“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”.
AWARD OF POST-JUDGMENT INTEREST –INSTANCE WHEN THE COURT WOULD EXERCISE ITS POWER TO AWARD POST-JUDGMENT INTEREST
“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.
ELEMENT OF CONTRACT- IMPLICATION OF A TOTAL FAILURE OF CONSIDERATION
“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 appellants 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.
CASES CITED
Not Available
STATUTES REFERRED TO
High Court of Lagos State (Civil Procedure) Rules, 2012|
