SAMEK CONSTRUCTION CO. LTD V EGEGE & ORS

SAMEK CONSTRUCTION CO. LTD V EGEGE & ORS


IN THE COURT OF APPEAL
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI

ON FRIDAY, 24TH AUGUST, 2018


Suit No: CA/PH/121/2009

CITATION:

Before Their Lordships:

MASSOUD ABDULRAHMAN OREDOLA, JCA

AYOBODE OLUJIMI LOKULO-SODIPE, JCA

ITA GEORGE MBABA, JCA


BETWEEN

SAMEK CONSTRUCTION CO. LTD
(APPELLANT)

AND

MR ISAAC ENYINNAYA EGEGE
MR. ENYINNAYA NWANKPA
MR. ELIJAH AGBAGHIGBA
(FOR THEMSELVES AND AS THE REPRESENTATIVES OF THE UMUATAKO FAMILY OF UMUOCHAM IN OSISIOMA NGWA LOCAL GOVERNMENT AREA OF ABIA STATE)
(RESPONDENTS)


PRONOUNCEMENT


A. APPEAL
1. Interference with Findings of Facts – The non-interference of the Appellate Court with the final decision of a lower Court where the reasons are wrong

…It is also important to point out, that this Court would also not hastily interfere, set aside or readily intervene with the final decision of a trial Court if it found that the said decision is correct, but based on a wrong premise. This is because, this Court and indeed all appellate Courts are more inclined and interested in the merit of the case of the parties and the correctness of the lower Court’s decision, than the reasoning process upon which it was arrived at. See Olanrewaju v. Governor of Oyo State (1992) NWLR (Pt. 265) 335; United Bank for Africa Ltd. & Anor. v. Mrs. Ngozi Achoru (1990) 6 NWLR (Pt. 156) 254 and Integrated Timber & Plywood Products Ltd. v. Union Bank of Nigeria Plc. (2006) 12 NWLR (Pt. 995) 483. Thus, where the decision of the lower ourt is found to be correct, but the lower Court somewhat misapplied the law or committed some errors, the appellate Court would be in a vantage position to correct the errors of the lower Court and restate the established position of the law, while still retaining the final decision of the lower Court. Per OREDOLA, JCA. read in context

B. CONTRACT
2. Counter Offer – What amounts to a counter offer and its effect

…a counter offer amounts to an offer from an offeree, who instead of accepting the terms and or conditions as contained in an original offer, proposes a variation(s) in the original offer; or makes or proposes a completely new set of terms and or conditions from those contained in the original offer. See the case of Best Nig. Ltd. v. Black wood Hodge Nig. Ltd. & Anor. (2011) LPELR – 776 (SC). The effect of a counter offer is that it completely cancel or destroy the original offer, which can no longer be operative or accepted by the offeree, as it serves as an express and unequivocal rejection of the original offer. See the cases of Bilante International Ltd. v. N.D.I.C. (2011) LPELR – 781(SC); Lawal v. Union Bank of Nig. Plc. &Ors. (1995) LPELR – 1762 (SC) and Akinyemi v. Odu’a Investment Co. Ltd. (2012) LPELR – 8270 (SC). Per OREDOLA, JCA. read in context

3. Offer – Conditions for an offer to be considered as an offer of compromise

For correspondence to be considered as an offer of compromise, the following conditions must co-exist:
i. Existence of dispute between the parties; and

ii. The mutual intention of the parties to enter into negotiation to settle the dispute. Per OREDOLA, JCA. read in context

C. EVIDENCE
4. Evaluation of Evidence – The primary duty of a trial Court

It is important to point out, that the law is well settled beyond controversy that it is the primary duty of a trial Court to admit evidence, ascribe probative value to the evidence adduced and duly admitted by him. It is also the primary duty of the trial Court in evaluating all the pieces of evidence adduced by each of the parties before him to place the same on the imaginary scale and determine on which side of the scale the evidence preponderates or tilts. Thus, where the learned trial judge has duly and effectively carried out his bounden duty and has thereafter arrived at an informed decision, an appellate Court is precluded from readily interfering with the said decision of the learned trial judge, except where it has been demonstrably established that the decision of the learned trial judge is perverse or given contrary to an established principle of law, and has by so doing occasioned gross miscarriage of justice to the affected party. See the cases of Agbeje v. Ajibola (2002) 2 NWLR (Pt. 75 ) 27; Anyanwu v. Uzowuaka (2009) 13 NWLR (Pt. 1159) 445 and Shittu & Ors. v. Olawumi & Ors. (2011) LPELR – 3955. Per OREDOLA, JCA. read in context

5. Admission – The position of the law on the non-admissibility of offers of compromise

The law is trite as the learned counsel for the Appellant stated, that offers of compromise made expressly or impliedly by a party cannot be given in evidence or even used by the Court (as an admission for liability); on grounds of policy and the need to protect the negotiations entered bona fide in the course of settlement of a dispute or perceived dispute/disagreement. This principle of law is aimed at promoting amicable and/or out of Court settlement of disputes, and encourage parties to fully enter into negotiations aimed at settling a dispute, knowing that in the case of complete breakdown of the private settlement procedure or amicable procedure for settlement of the dispute, correspondence exchanged and or other evidence which emanated therefrom cannot be used or tendered in Court, against him. See the case of Akanbi v. Alatede (Nig.) Ltd. (2000) 1 NWLR (Pt. 639) 125. Per OREDOLA, JCA. read in context

D. JUDGMENT AND ORDER
6. Award of Interest – The position of the law on award of interest in land transaction

On the second issue, a claim for interest be it pre-judgment or post-judgment interest is not granted just for the asking; a party claiming such is expected to prove to the satisfaction of the Court that the transaction entered into between the parties, that is, the transaction which is the subject matter of the case, charge of interest was contemplated, or that the custom, trade practice, which regulates the transaction provides for claim of interest; or under a principle of equity, grant of interest is justified. Where interest is being claimed as a matter of right, the proper practice is to claim entitlement to it on the writ and pleads facts which shows such an entitlement in the statement of claim, and support the facts with credible evidence. See the case of Sani Abacha Foundation for Peace and Unity & Ors. v. United Bank for Africa Plc. (2010) 17 NWLR (Pt. 1221) 192. In the instant case and in land transaction, the custom of the trade dictates that interest should flow on the consideration advanced for the purchase of a land; where the transaction fails. Interest will still be held claimable whether or not parties provided for such in their agreement. Thus, I do agree with the learned counsel for the Appellant that it is both against the law and principle of equity for a purchaser of land to be made to receive the exact amount deposited for the purchase of land, especially where the purchase price was paid for a long time or fairly long period of time. However, the purchaser would be deemed or regarded to have been entitled to the interest where the vendor was found liable of frustrating the transaction or that the vendor was responsible for the breach of contract between the parties; not otherwise. Thus, where the transaction collapsed as a result of the purchaser’s act, that is, where the purchaser was liable for frustrating or wrongly terminating the contract between the parties, he will not be entitled to any claim of interest in addition to the amount advanced by him.

This is because, a wrong doer cannot be allowed to benefit from his own wrong doing. Rather the injured party whose transaction was frustrated, would be held entitled to damages for breach of contract. See the cases of Anyah v. Imo Concorde Hotels Ltd. (2002) 12 S.C. (Part II) 77; Oyebanji v. Fowowe (2007) LPELR – 8301 and Bureau of Public enterprises v. Assurance Bank Plc. & Ors. (2009) LPELR – 3896. Per OREDOLA, JCA. read in context


LEAD JUDGMENT DELIVERED BY OREDOLA, JCA


This appeal was filed against the judgment of the Abia State High Court, sitting at Osisioma (hereinafter referred to as the lower Court) delivered on the 20th day of June, 2005 by Hon. Justice T. U. Uzokwe, J., (hereinafter referred to as the learned trial judge).

The suit which gave rise to this appeal was commenced by the plaintiff/Appellant (hereinafter referred to as the Appellant) against the defendants/Respondents (hereinafter referred to as the Respondents), wherein the Appellant by its further amended statement of claim sought for the grant of the following reliefs:

(i) A declaration that the plaintiff is entitled to the grant of the right of occupancy over all that piece or parcel of land shown on survey plan No. MG: 1329/77 dated 6th October, 1977 occupying approximately (8.370 acres) 3.90 Hectares of land situate at Umuocham, Abayi in the Obioma Ngwa Local Government Area of Abia State.

(ii) An order compelling the defendants to return the other three copies of the Memorandum of Agreement titled “Deed of Lease” dated 1st day of March 1978 made between the plaintiff and the defendants or in the alternative. An order that the defendants execute a new lease in favour of the plaintiff.

(iii) An order compelling the defendants to accept the sum of thirty three thousand Naria (N33,000.00) being the balance of the consideration on the Memorandum of Agreement titled ‘Deed of Lease’ dated the 1st day of March, 1978.

(iv) An order of perpetual injunction restraining the defendants, their privies, agents or workmen from further entry or trespassing into the land shown on Plan No. MG 1329/77 dated 6th October, 1977.

Alternatively:

(a) An order of Court that a total sum of N1,706,666.80 being the present worth of the N33,000.00 paid over to the defendants family in 1984 over a consideration that has totally failed, be paid back to the plaintiff by the defendants.

(b) 20% simple interest on the sum of N1,706,666.08 from 1994 until judgment is delivered.

(c) 10% simple interest on the judgment sum from date of judgment until same is liquidated.

(d) The sum of N66,000,000.00 as general damages paid to the plaintiff by the defendants for the failed transaction over 66 plots of land aforesaid, consequent to the frustration of the contract by the defendants over the land transaction of 1977.”

The cause of the dispute between the parties was with regard to some 66 plots of land out of a larger piece or parcel of land called “Egbelu Umuatako” lying and situate at Umuocham in Obioma Ngwa Local Government Area of Abia State. Sometimes in the year 1977, the Appellant contracted with the Respondents to buy the 66 plots of land (hereinafter referred to as the land in dispute) which belonged to the Respondents. Parties negotiated and agreed that the land in dispute would be transferred to the Appellant in form of a lease for the payment of N66,000.00 (Sixty Six Thousand Naira), in addition to a yearly rental of N600.00 (Six Hundred Naira). Pursuant to the said agreement between the parties, they executed a Deed of Lease which was made in three copies. A copy of the deed was handed over to the Appellant and the rest retained by the Respondents pending when payment, and or consideration for the land would be completely paid. The Deed of Lease was tendered and admitted in evidence as Exhibit B.

Towards the fulfilment of the agreement, the Appellant made a cash payment of N6,000.00 to the Respondents and issued an African Continental Bank Cheque in the sum of N60,000.00 (Sixty Thousand Naira). However, the Cheque was countermanded by the Appellant and returned unpaid.

The Respondents stated that the Appellant’s reason for countermanding the cheque was that it wanted to pay cash, but the Appellant later informed them that it countermanded the cheque because of the internal dissension and or wrangling among members of the Respondents’ family. In addition, the Appellant also requested for the refund/return of the deposit of N6,000.00 earlier paid to the Respondents. The countermanded cheque and note which accompanied it from the Bank were tendered and admitted in evidence as Exhibits H & J, respectively.

Subsequently, the Appellant further paid the sums of N20,000. and N7,000.00 in furtherance of the said transaction. The last payment of N7,000.00 was made in the year 1984. From the year 1984 when the last payment was made, no word was heard from the Appellant nor any effort made by either of the parties in furtherance of the transaction. Thus, the Respondents caused a letter to be written to the Appellant through their solicitor in the year 1990, to come for the refund of the monies it had previously paid for the land in dispute, as it was obvious that the Appellant was no longer interested in the land. The letter was tendered in evidence and admitted as Exhibit E. The Appellant gave a reply to the Respondent’s letter, wherein it stated that the total money it had paid so far was N33,000.00 and which said sum of money was sufficient enough to cover 33 plots out of the 66 plots initially agreed upon. The Appellant also requested the Respondents to inform it of when it would take possession of the said 33 plots.

With the above developments, the parties considered and or regarded that the contract for the lease of the land in dispute has been rescinded. Thus, the Appellant brought this suit, to compel the Respondents to perform the contract or refund all the monies already advanced in respect of the transaction (albeit based on the current appreciated monetary value of naira vis-à-vis the period when the suit was filed).

After some lengthy delay, hearing in the case commenced on the 11th day of April, 2005, whereby the Appellant called only a single witness and tendered some documentary evidence as exhibits in support of its case. In their defence, the Respondents also fielded a sole witness and similarly tendered some documentary evidence through the Appellant’s witness and their witness. At the close of hearing, the learned counsel for the parties were granted the opportunity to address the lower Court, thereafter, the case was adjourned for delivery of judgment. In a considered and/or reserved judgment, the learned trial judge found and held that the Appellant had by long and or inordinate delay, frustrated the agreement in respect of the land in dispute and has also by its Exhibit G, made a “new offer”. In sum, that the Appellant was responsible for the breach of the agreement between the parties and it has failed to prove its case against the Respondents. Thus, the learned trial judge dismissed the Appellant’s case and ordered the Respondents to refund the sum of N33,000.00 previously paid by the Appellant.

Unsurprisingly, the Appellant was not satisfied with this judgment and has thereby appealed against the same to this Court. Its initial notice of appeal was filed on the 7th day of July, 2005, but it was amended by the leave of this Court and deemed properly filed and served by the order of this Court granted on the 6th day of July, 2017. The said amended notice of appeal contained nine grounds of appeal.

In prosecution of the appeal, the parties filed and exchanged their respective briefs of argument. The Appellant’s brief of argument and reply brief was prepared by K. I. Oleh Esq. The Appellant’s brief of argument was filed on the 21st day of October, 2015; while the Appellant’s reply brief was filed on the 23rd day of April, 2018 but it was deemed as properly filed and served by the order of this Court granted on the 28th day of June, 2018.

On the other side of the river, the Respondents’ brief of argument was prepared by I. O. Egwu Esq. The said Respondents’ brief of argument was filed on the 7th day of November, 2017 but it was deemed as properly filed and served on the 19th day of February, 2018, by the order of this Court.

Towards the determination of this appeal, the learned counsel for the Appellant distilled five issues for resolution. The issues are:

“Issue 1 –

Within the circumstances of this suit, was Exhibit G (of the Appellant) a counter-offer or an offer made at compromise (Ground 3).

Issue 2 –

Was the promise of pipe-borne water from the Appellant to the Respondents part of the conditions for the sale of the 66 plots of land. (Ground 5).

Issue 3 –

Was the lower Court correct in holding that the Appellant sued for a specific performance of the contract of 1977. (Ground 9).

Issue 4 –

Was the lower Court correct in holding that it was the Appellant that breached the contract over the 66 plots of land. (Ground 1, 2, 6, 7 and 8)

Issue 5 –

Was it equitable for the Appellant to be entitled only to the refund of the N33,000.00 she paid between 1977 (1978) and 1984 (28 (27) – 21 years as at 2005) without any form of interest on the money. (Ground 4).”

On the part of the Respondents, the learned counsel for the Respondents identified four issues for resolution in the course of determination of this appeal.

The issues are reproduced below as follows:

i) Whether the Appellant’s letter of 05/10/90, admitted during trial as Exhibit G, did not amount to a new offer for the purchase by the Appellants of 33 plots of land and a repudiation of the original contract for the sale of 66 plots of land made between the parties (Ground 3).

ii) Did the Trial Judge’s construing of the Appellant’s case as one for specific performance, instead of, according to the Appellant, “an action to recover land that had not been completely delivered to her”, occasion a miscarriage of justice? (Ground 9).

iii) Whether having regard to the pleadings and evidence before the trial Court the trial judge was not correct in holding that it was the Appellant that breached the contract of sale of 66 plots of land to it made between it and the Respondents in 1977 by failure to pay full consideration (Ground 1, 2, 5, 6, 7 and 8).

iv) Was the Trial Judge’s decision dismissing the Appellant’s case but ordering the Respondents to refund to the Appellant the sum of N33,000.00 paid to them by her is supportable having regard to the pleadings and evidence before her? (Ground 4).”

I have given adequate and due considerations to the facts of this case and evidence led by the parties, judgment of the lower Court and the Appellant’s grounds of appeal, and I am of the considered viewpoint that the main issues that call for determination in this appeal are Appellant’s issues; Issues 4 and 5, which are materially the same with the Respondents’ Issues (iii) and (iv). All other issues revolve around both issues and/or are more or less a complement of the said issues. Thus, the Appellant’s Issues 4 and 5 are adopted for resolution towards the determination of this appeal. Also, in view of the fact that the issues are interrelated, they would be considered and resolved together.

Before I proceed to address the issues adopted for resolution and the determination of this appeal, it is instructive to point out that the Respondents’ counsel raised preliminary objection against the instant appeal on the ground that some of the grounds of appeal contained in the Appellant’s amended notice of appeal are incompetent. The said preliminary objection was equally raised by way of a motion on notice dated the 6th day of November, 2017 and filed on the 23rd day of November, 2017. The motion on notice in question and under reference has been heard by this Court and dismissed as it lacked merit. And since the motion on notice and the preliminary objection are basically complaining of the same default and or predicated on the same grounds, the preliminary objection would be deemed to be liable to the same fate, and it is accordingly dismissed. Thus, pursuant to the ruling of this Court delivered on the 18th day of May, 2018 in Appeal No. CA/PH/121/2009, wherein this Court found that the Appellant’s appeal and its grounds of appeal are competent, the Respondents’ preliminary objection on the same grounds and arguments as contained in paragraphs 3.0 – 4. 5 of the Respondents’ brief of argument, are also discountenanced by me for lacking in merit and totally misconceived.

ARGUMENTS ON ISSUES.

The learned counsel for the Appellant submitted, that “the lower Court was wrong to have decided that the Appellant breached and frustrated the contract over the 66 plots of land.” The learned counsel stated that the Respondents claimed that the Appellant failed to complete the payment of the land between 1984 – 1990, but were unable to advance or adduce any evidence to show any step taken by them to recover the remaining balance of the agreed consideration. Also, the Appellant’s counsel contended, that the parties were ad idem that the reason why the Appellant failed with regard to payment of the full purchase price was because of the internal rift or wrangling within the Respondents’ family and the then pending Suit No. A/283/77. The learned Appellant’s counsel then argued, that the learned trial judge misdirected himself when he erroneously found and held that the Appellant was aware that the said Suit No. A/283/77 was amicably settled in 1979 and the Appellant failed to complete the payment in respect of the purchase of the land within reasonable time thereafter. He contended, that the Appellant not having participated in the case, which it considered an internal affair of the Respondent’s family; it couldn’t have been aware of when it was settled or concluded.

Also, the learned counsel for the Appellant contended that the Respondents evidence with regard to when Suit No. A/283/77 was concluded was contradictory. He stated that one Emeka Chigbu who was formerly one of the Respondents stated that it was settled in 1982, while the Respondents’ witness stated that it was settled in 1979. In addition, he argued that even taking the Respondents’ witness evidence that the suit was settled in 1979; they the Respondents were paid and received a further payments in instalments from the Appellant in October 1982 and by so doing had shown the intention to further proceed with the transaction on the basis of payments by instalments. Thus, the learned Appellant’s counsel submitted, that the Respondents were responsible for the breach of the contract between the parties without reasonable justification.

Furthermore, the learned counsel for the Appellant submitted, that the learned trial judge was wrong when he held that the Appellant had by Exhibit G repudiated the contract between the parties, when there was nothing in the said letter to warrant that conclusion.

The learned counsel argued, that the Appellant “was in Exhibit G trying to compromise the ensuing dispute. It was a middle-of-the-road option. The Appellant was trying to mitigate her loss; yet the lower Court read Exhibit G as evidence of breach, when in fact the Respondents were not ready to collect the balance.” He continued with the argument that, “in so far as the Respondents did not take any concrete step to demand for the N33,000.00 between 1985 – 1990 but only to brandish Exhibit E in 1990, they were the ones no longer interested in concluding the agreement.” Thus, he urged this Court to resolve this issue in favour of the Appellant.

In respect of the second issue, that is, Issue 5 in the Appellant’s brief of argument, the learned counsel for the Appellant submitted, that the “Court can award interest even if not claimed in the Writ or Statement of Claim. The basis for the award of interest is that the defendant has kept the plaintiff out of his money and the defendant has had use of it himself for which he ought to compensate the plaintiff accordingly.” He referred us to the cases of Harbutt’s Plastics Ltd. v. Wayne Tank & Pump Corp. Ltd. (1970) 1 Q. B. 447;Nigerian Exchange Assurance Nig. Ltd. & Ors. v. Aswani Textile Industries Ltd. (1991) 2 NWLR (Pt. 176) 639 and UBA Ltd. v. Stahlbau GMBH & Co. Kg. (1989) 3 NWLR (Pt. 110) 334, (1989) 6 SCNJ 1.

The learned counsel then argued, that notwithstanding the above cited authorities, the Appellant claimed for interest in the event that its “money is to be returned”. Hence, reliefs 25 (a) – (c) were clearly alternative claims. Also, that the Appellant duly supported the same with evidence, but the lower Court erred when it failed to grant the Appellant the interests as claimed and contained in its alternative reliefs.

The learned counsel for the Appellant stated, that the issue herein is more in relation to equity than law. He argued that, it would be inequitable if the Respondents were made to return only the N33,000.00 paid by the Appellant without any form of interest, especially and in view of the fact that the Appellant requested for the refund of his money in 1978, but the Respondents refused. The learned counsel therefore urged this Court “to review this issue and at least return to the Appellant an amount near the value it deposited” for the land, by taking judicial notice of the changes and/or value of naira as it has been depreciatingly affected by inflation. Thus, he also urged this Court to resolve this issue in favour of the Appellant.

The learned counsel for the Respondents in reply submitted that parties are bound by their pleadings and an averment raised in pleadings by a party which was not specifically denied by his adversary is deemed admitted. He cited the cases of Ehimare v. Emhonyon (1985) 1 NWLR (Pt. 2) 177 at 183; Federal Housing Authority v. Sommer (1986) 1 NWLR (Pt. 17) 533 and Nlewedim v. Uduma (1995) 6 NWLR (Pt. 402) 383, in support thereof. The learned counsel then proceeded and reproduced some portions of the Respondents’ pleadings which he considered vital and submitted, that the Respondents have by their pleadings stated and/or asserted that one of the considerations for the transaction in respect of the land in dispute to the Appellant was that the Appellant will provide them with pipe-borne water. The learned Respondents’ counsel also stated that the Respondents also copiously pleaded that the reason why they tolerated the payments by instalments for the land in dispute from the Appellant, was because each time the Appellant came forward to make the payment(s), it always give the Respondents assurances, that the pipe-borne water would be provided for them.

Furthermore, the learned counsel contended that the Respondents copiously pleaded that the Appellant frustrated and/or breached the agreement between the parties when it failed to pay the consideration for the land in dispute within reasonable time. Finally, he also contended that the Respondents averred in their pleadings that the Appellant in addition to the acts stated above, unilaterally repudiated the agreement between the parties when it wrote Exhibit G, wherein it made a completely new offer, contrary to the initial agreement between the parties.

The learned counsel for the Respondents further argued, that the Respondents led credible evidence in proof of all the averments contained in their pleadings. The learned counsel maintained that the Appellant failed and/or neglected to either amend its statement of claim in reaction to the vital facts and or issues raised by the Respondents in their statement of defence or file a reply in respect thereof. The learned counsel for the Respondents opined, that the failure of the Appellant to respond or controvert the vital facts raised by the Respondents either by the pleadings or cross-examine the Respondents’ witness to rebut these facts, is deemed an admission and the learned trial judge acted rightly when he acted and placed reliance thereon. He supported his submissions with the cases of Isaac Omeregbe v. Daniel Lawani (1986) 3 – 4 S. C. 108 and U.B.A. Ltd. v. Ademuyiwa (1999) 11 NWLR (Pt. 628) 570.

In addition, the learned counsel for the Respondents submitted, that the Respondents pleaded and led evidence to establish that time was made to be of the essence for the conclusion of the land transaction between the parties, but the Appellant inordinately and unreasonably delayed in fulfilling its obligation under the contract and by so doing frustrated the contract between the parties. He referred us to the case of Nigerian Bank for Commerce and Industry v. Integrated Gas (Nig.) Ltd. &Anor. (2005) 4 NWLR (Pt. 916) 617. Also, the learned counsel urged this Court “to find as a fact and hold that from the conduct of the parties, that is, the making of cash payment of N6,000.00 on 1/3/78 by the Appellant and issuing a cheque for the balance sum of N60,000.00 same day implied that the full consideration of N66,000.00 was agreed to be paid on 1/3/78. Therefore the countermanding of the cheque by the Appellant was a total breach and complete determination of the contract.”

The learned counsel for the Respondents contended that it was the failure of the Appellant to pay the consideration for the land within the time contemplated and/or agreed that led some members of the Respondents’ family to file Suit No. A/283/77 and the said suit was not the reason why the Appellant failed to fulfill its obligation to pay full consideration for the land as averred by the Appellant. The learned counsel argued that, assuming but not conceding that the assertion made above or reason for its failure to pay the consideration as given by the Appellant was to be believed, the learned Respondents’ counsel queried, that “what stopped the Appellant from completing the payment from 1984 till 1990 when the Respondents now wrote him Exhibit E?”According to the learned counsel, “the cumulative effect of the above findings or state of affairs is that the Appellant willfully and without any cause or justifications whatsoever neglected and/or failed to pay full consideration of the sum of N66,000.00 at the stipulated time (being 1/3/1978) or at a reasonable time thereafter or at all.”

Thus, the learned counsel for the Respondents submitted once again, that “non-payment of the full consideration of the sum of N66,000.00 at the agreed time (being 1/3/78) or at a reasonable time thereafter amounted to a breach of the fundamental term of the contract and the Respondents were entitled to resile from the contract and regard same as determined”. He supported his position with the cases of Odusoga v. Ricketts (1997) 7 NWLR (Pt. 511) 1; Manya v. Idris (2001) 8 NWLR Pt. 716) 627 and Nlewedim v. Uduma (1995) 6 NWLR (Pt. 402) 383.

With regard to the other issue, the learned counsel for the Respondents contended, that the Appellant’s claims for interest and general damages for breach of contract are baseless and misconceived.

The learned counsel argued, that the Appellant has failed to prove how the reliefs claimed in the alternative was arrived at, especially where the Appellant based his claim on the strength of ratio of dollar – naira. Thus, the learned counsel submitted, that the Appellant having failed to lead any iota of evidence in support of his reliefs as claimed in respect thereof, the lower Court was right with its refusal to grant the same. He called in aid the cases of Ishola v. Union Bank of Nigeria Ltd. (2005) 6 NWLR (Pt. 922) 422; Erik Emborg Export A/S v. Jos International Breweries Plc. (2003) 5 NWLR (Pt. 814) 505and Mohammed v. DHL International Nig. Ltd. (2001) 2 NWLR (Pt. 696) 1215, among others. The learned counsel for the Respondents thereby urged this Court to resolve these issues in favour of the Respondents.

The learned counsel for the Appellant in the Appellant’s reply brief, submitted that the Respondents’ contentions that Appellant failed to controvert some facts pleaded in their statement of defence was misconceived in view of the provision of Order 25 Rule 10 (4) of the Abia State High Court (Civil Procedure) Rules, 2001 (hereinafter referred to as the Rules), which provides that issues are presumed to have been joined on the last filed pleadings, which in this case was the Respondents’ further amended statement of defence. He also submitted, that all the cases cited and or referred toby the Respondents’ counsel in respect of the first issue were quoted out of context and are not applicable in the given circumstances of this case.

Also, the learned counsel for the Appellant contended, that the standpoint of the Respondents that the land transaction included the obligation that the Appellant would provide the Respondents with pipe-borne is not supported by any piece of evidence on record, particularly in the lease agreement between the parties (Exhibit B). Thus, he submitted, that the Respondents’ contention in this regard has not been supported by Exhibit B, and as such cannot be accepted or preferred over the said Exhibit B which embodies the agreement reached between the parties. He supported his position with the cases of UBA Ltd. v. Ademuyiwa (1999) 11 NWLR (Pt. 628) 570 and Interdrill Nig. Ltd. & Anor. v. United Bank for Africa Plc. (2017) LPELR – 41907, (2017) ALL FWLR (Pt. 904) 1177 at 1198.

On Respondents Issue 4 which is Appellant’s Issue 5, the learned counsel for the Appellant simply stated and in essence, that “N33,000.00 in 1984 does not have the same value in 1990, 1994 or even now!.”

The main issue or cause of dispute between the parties is which of the parties breached the agreement with regard to the transfer of the land in dispute, or who between the parties could be held squarely responsible for frustrating the transaction? To properly situate and answer this question, the pleadings of the parties and evidence adduced in support thereof need to be thoroughly examined.

There was no dispute on the fact that the lease agreement/transaction was entered into in 1977 and from the circumstances of the facts of this case, particularly evidence led by the parties, the consideration for the transaction was expected to be paid immediately or within reasonable time. Also, it can be safely deduced and or inferred from the facts of this case, that the parties impliedly agreed that the consideration for the transaction would be paid in a lump sum.

This from all indications accounted for the reason why the Appellant made a cash payment of N6,000 and equally issued a cheque to the tune of N60,000.00 in favour of the Respondents on the same day. The necessary question that need to be asked is: Did the Appellant pay the consideration for the transaction as agreed between the parties? This poser was answered by the learned trial judge in the negative.

It is important to point out, that the law is well settled beyond controversy that it is the primary duty of a trial Court to admit evidence, ascribe probative value to the evidence adduced and duly admitted by him. It is also the primary duty of the trial Court in evaluating all the pieces of evidence adduced by each of the parties before him to place the same on the imaginary scale and determine on which side of the scale the evidence preponderates or tilts. Thus, where the learned trial judge has duly and effectively carried out his bounden duty and has thereafter arrived at an informed decision, an appellate Court is precluded from readily interfering with the said decision of the learned trial judge, except where it has been demonstrably established that the decision of the learned trial judge is perverse or given contrary to an established principle of law, and has by so doing occasioned gross miscarriage of justice to the affected party. See the cases of Agbeje v. Ajibola (2002) 2 NWLR (Pt. 750) 127; Anyanwu v. Uzowuaka (2009) 13 NWLR (Pt. 1159) 445 and Shittu & Ors. v. Olawumi & Ors. (2011) LPELR – 3955.

It is also important to point out, that this Court would also not hastily interfere, set aside or readily intervene with the final decision of a trial Court if it found that the said decision is correct, but based on a wrong premise. This is because, this Court and indeed all appellate Courts are more inclined and interested in the merit of the case of the parties and the correctness of the lower Court’s decision, than the reasoning process upon which it was arrived at.

See Olanrewaju v. Governor of Oyo State (1992) NWLR (Pt. 265) 335; United Bank for Africa Ltd. & Anor. v. Mrs. Ngozi Achoru (1990) 6 NWLR (Pt. 156) 254 and Integrated Timber & Plywood Products Ltd. v. Union Bank of Nigeria Plc. (2006) 12 NWLR (Pt. 995) 483.

Thus, where the decision of the lower Court is found to be correct, but the lower Court somewhat misapplied the law or committed some errors, the appellate Court would be in a vantage position to correct the errors of the lower Court and restate the established position of the law, while still retaining the final decision of the lower Court.

In the instant case, the learned trial judge after the conduct of a thorough and painstaking evaluation of all the pieces of evidence adduced before him by the parties in support and defence of their respective cases; found as a fact and held that the Appellant unilaterally terminated the contract between the parties because of its inordinate and unreasonable delay in paying the full consideration agreed upon by the parties. (See page 77 of the record of appeal). I have also taken the pains to conduct a thorough and critical analysis of the pleadings and all the pieces of evidence contained in the record of appeal placed before us by the parties, and I completely share the viewpoint of the learned trial judge that the contract between parties was unilaterally determined by the Appellant as a result of its failure to honour its obligation under the agreement entered into and executed by the parties as contained in Exhibit B.

As I have earlier observed, that immediate payment of the consideration for the lease agreement was intended by the parties, when Exhibit B was duly executed. The Appellant did not merely breach this all important term of the agreement by countermanding the initial cheque issued to the Respondents, but also in essence, somewhat frustrated the contract by the irregular payments of the consideration and its lackadaisical attitude towards due performance of the contract. This attitudinal disposition demonstrated by the Appellant completely smacks of irrationality, lack of business acumen, prudence and sagacity demands that a party who indicated interest to acquire a property, agreed to the purchase price with the vendor and showed avid intention to pay the consideration agreed promptly, would now turn around without reasonable justification or substantial reason, to wait for over a period of 13 years to pay only half of the consideration previously agreed to be paid promptly.

I am of the mindset, that the Appellant did not show or establish any reasonable justification or substantial reason for its delay, because the pendency of Suit No. A/283/77 cited or relied upon as the reason for its delay, did not in any way justify the said delay. From the reference number of the said suit as registered, it is without dispute that the suit was commenced sometimes in 1977. Again, it was established in evidence that the Appellant was made a party in the said suit and was promptly served with all the requisite Court processes filed in respect thereof. What is more, the Appellant’s sole witness admitted under the heat of cross-examination, that “the first payment of the plaintiff made to the defendant for this transaction was sum of N6,000.00 that payment was made on 1/3/78”, during the pendency of the said suit. In fact, taking into the account the evidence adduced by the Appellant alone, the second payment of N20,000 was also made during the pendency of the suit. With these facts, the reason stated by the Appellant for its refusal or delay to pay the consideration promptly or within reasonable timeflies in the face of sound reasoning and disappear into thin air like smoke.

Interestingly, the Appellant failed and/or neglected to address or give any reasons whatsoever on why it refused to make further payment and/or completely pay the remainder of the consideration from 1984 when it last paid N7,000.00 in furtherance thereto till 1990, when the Respondents wrote a letter (Exhibit E) requesting that the Appellant should come forward to collect all the monies already paid by it. Rather, the Appellant was posturing that the Respondents did nothing to recover the balance of the consideration already paid to them. This argument or stand point put forward by the Appellant’s counsel completely showed the unseriousness or better portrayed the complete lack of seriousness and/or business awareness and consciousness on the part of the Appellant. From the tenor of this argument, the Appellant’s counsel sort of required and/or wanted the Respondents to plead, pursue and/or persuade the Appellant before, the Appellant will honour its obligation. A serious buyer and business savvy individual, who indicated interest, readiness and capability of buying a landed property would not wait for 13 years for such a serious minded buyer to honour its obligation by paying the consideration for the land or landed property without waiting to be chased around like a common debtor, before he would pay up the consideration agreed upon between the parties. The impression created by the Appellant from the facts of this case is that; as it can be deduced that it took the transaction for granted and was obviously of the opinion that it could conclude the transaction at its leisure or time without regard to the Respondents, until it was stunned by Exhibit E.

In the light of all that have been said above, I do agree with the learned trial judge that the Appellant unilaterally terminated the agreement it had with the Respondents by its inordinate and unreasonable delay in paying the consideration for the land in dispute, the subject of Exhibit B. Thus, in view of the breach committed, the Respondents acted within their right when they considered the contract repudiated for the sale of land entered into by the parties and considered it as having ended. The Respondents would also be justified in their action, even if the Appellant was put into possession but it failed to pay the outstanding balance of the purchase price as done in this case. I find support for this position in the decisions in Odufunye v. Fatoke (1977) 4 SC 11;Manya v. Idris (2001) 8 NWLR (Pt. 716) 627; Badaru v. Somolu Community Bank Nig. Ltd. (2003) 10 NWLR (Pt. 827) 91; Nidocco Ltd. v. Gbajabiamila (2013) LPELR – 20899 and Nlewedim v. Uduma (1995) 6 NWLR (Pt. 402) 383. Thus, Issue 1 (that is, Appellant’s Issue 4) is resolved against the Appellant.

On the second issue, a claim for interest be it pre-judgment or post-judgment interest is not granted just for the asking; a party claiming such is expected to prove to the satisfaction of the Court that the transaction entered into between the parties, that is, the transaction which is the subject matter of the case, charge of interest was contemplated, or that the custom, trade practice, which regulates the transaction provides for claim of interest; or under a principle of equity, grant of interest is justified. Where interest is being claimed as a matter of right, the proper practice is to claim entitlement to it on the writ and pleads facts which shows such an entitlement in the statement of claim, and support the facts with credible evidence. See the case of Sani Abacha Foundation for Peace and Unity & Ors. v. United Bank for Africa Plc. (2010) 17 NWLR (Pt. 1221) 192.

In the instant case and in land transaction, the custom of the trade dictates that interest should flow on the consideration advanced for the purchase of a land; where the transaction fails. Interest will still be held claimable whether or not parties provided for such in their agreement. Thus, I do agree with the learned counsel for the Appellant that it is both against the law and principle of equity for a purchaser of land to be made to receive the exact amount deposited for the purchase of land, especially where the purchase price was paid for a long time or fairly long period of time. However, the purchaser would be deemed or regarded to have been entitled to the interest where the vendor was found liable of frustrating the transaction or that the vendor was responsible for the breach of contract between the parties; not otherwise. Thus, where the transaction collapsed as a result of the purchaser’s act, that is, where the purchaser was liable for frustrating or wrongly terminating the contract between the parties, he will not be entitled to any claim of interest in addition to the amount advanced by him.

This is because, a wrong doer cannot be allowed to benefit from his own wrong doing. Rather the injured party whose transaction was frustrated, would be held entitled to damages for breach of contract. See the cases of Anyah v. Imo Concorde Hotels Ltd. (2002) 12 S.C. (Part II) 77; Oyebanji v. Fowowe (2007) LPELR – 8301 and Bureau of Public enterprises v. Assurance Bank Plc. &Ors. (2009) LPELR – 3896.

The Appellant in the instant case was found to be liable for the breach of the contract between the parties, thus, it could not be entitled to any form of interest with regard to any sum of money already paid by it. Thus, all its claims for interest automatically fails. It is also interesting to note, that the Appellant’s alternative relief was the claim for N1,7066,666.80 as the current value of N33,000.00 already paid by it in furtherance of the land purchase transaction, in addition to claim for interest in respect thereof, while in its main reliefs, the Appellant sought for an order of this Court to compel the Respondents to accept the sum of N33,000.00 being balance of the consideration for the land transaction.

That is, the Appellant on one hand was asked the lower Court to compel the Respondents to collect N33,000.00 as the balance of the consideration, so that the land in dispute would be transferred to it, and on the other hand, it unilaterally converted the N33,000.00 already paid by it to N1,076,666.80. If by the Appellant’s calculation N33,000.00 paid by the year 1984 has grown to be N1,706,666.80 by 1994 when this Suit was commenced, then the balance of N33,00.00 which the Respondents are entitled to in the year 1977 should have attracted more value. By this, the Appellant who urged this Court to exercise its equitable jurisdiction to grant it interest on the monies already paid by it in furtherance of the land transaction, did not approach this Court with a clean hand and/or conscience. In summary, the Appellant’s contentions and/or complaints in respect of this issue are found by me to lacked merit and it is accordingly discountenanced. Thus, this issue is also resolved against the Appellant.

Before I conclude let me address the status of Exhibit G as canvassed by the parties. The learned counsel for the Appellant argued and or contended in this appeal, that the learned trial judge erred when he regarded Exhibit G as a counter offer, instead of what he regarded it as Offer for Compromise, which cannot be legally admitted in evidence and used against the Appellant. On the other hand, the learned counsel for the Respondents contended, that the learned trial judge was right when he regarded the said Exhibit G as a counter-offer or new offer, which in turn has repudiated the agreement between the parties as embodied in Exhibit B.

The law is trite as the learned counsel for the Appellant stated, that offers of compromise made expressly or impliedly by a party cannot be given in evidence or even used by the Court (as an admission for liability); on grounds of policy and the need to protect the negotiations entered bona fide in the course of settlement of a dispute or perceived dispute/disagreement. This principle of law is aimed at promoting amicable and/or out of Court settlement of disputes, and encourage parties to fully enter into negotiations aimed at settling a dispute, knowing that in the case of complete breakdown of the private settlement procedure or amicable procedure for settlement of the dispute, correspondence exchanged and or other evidence which emanated therefrom cannot be used or tendered in Court, against him. See the case of Akanbi v. Alatede (Nig.) Ltd. (2000) 1 NWLR (Pt. 639) 125.

On the other hand, a counter offer amounts to an offer from an offeree, who instead of accepting the terms and or conditions as contained in an original offer, proposes a variation(s) in the original offer; or makes or proposes a completely new set of terms and or conditions from those contained in the original offer. See the case of Best Nig. Ltd. v. Black wood Hodge Nig. Ltd. & Anor. (2011) LPELR – 776 (SC). The effect of a counter offer is that it completely cancel or destroy the original offer, which can no longer be operative or accepted by the offeree, as it serves as an express and unequivocal rejection of the original offer. See the cases of Bilante International Ltd. v. N.D.I.C. (2011) PELR – 781(SC); Lawal v. Union Bank of Nig. Plc. &Ors. (1995) LPELR – 1762 (SC) and Akinyemi v. Odu’a Investment Co. Ltd. (2012) LPELR – 8270 (SC).

Having the above principle in mind, the next consideration is wherther Exhibit G is a Counter Offer or Offer of Compromise? I have thoroughly and calmly examined the content and context of Exhibit G, and thencircumstance under which it was issued, and I do agree with the learned trial judge, that the said Exhibit G constitute a counter offer and has thereby repudiated the terms as contained in Exhibit B. For correspondence to be considered as an offer of compromise, the following conditions must co-exist:

i. Existence of dispute between the parties; and

ii. The mutual intention of the parties to enter into negotiation to settle the dispute.

In the instant case, though there is no doubt that a dispute has ensued between the parties, but there is no corresponding ad idem of the parties to settle the dispute or enter into any sort of arrangement to settle the dispute. Also, the content and tenor of the words used in the said Exhibit G, did not by any guise suggest that it was written for the purpose of settling the dispute between the parties. It was clearly written as a direct reply to the Respondents’ Exhibit E, wherein they informed the Appellant that they are no longer interested in continuing with the land transaction, due to the Appellant’s breach or lackadaisical attitude in paying the full consideration agreed for the land within the time agreed between the parties and or reasonable time. Thus, the contention of the Appellant’s counsel that the learned trial judge erred in classifying Exhibit G as ‘Counter Offer’ or ‘New Offer’ (as he may choose to call it), is misplaced and accordingly discountenanced by me. Exhibit G without any shadow of doubt is not an offer of compromise, but a counter offer. The counter of the said exhibit completely changed the terms of the parties original agreement and proposes a completely different arrangement. Thus, the learned trial judge was right to classify the exhibit as a counter offer.

Having resolved the issues adopted for the determination of this appeal in the above stated manner, this appeal is found by me to be lacking in merit and it is accordingly dismissed. Thus, the decision of the lower Court in Suit No. HOS/18 /96 delivered on the 20th day of June, 2005 and the consequential orders made therein are affirmed by me.

The Appellant is ordered to pay costs assessed in the sum of N50,000.00 to the Respondents.

LOKULO-SODIPE, JCA

I agree.

MBABA, JCA

I agree.

Appearances:

K. I. Oleh, Esq. For Appellant(s)

I. O. Egwu, Esq. For Respondent(s)