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  • 2003-11-10
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Dalko vs. Union Bank of Nigeria Plc

UNION BANK OF NIGERIA PLC

A. N. O. EFONYE

V

CHIEF I. I. ERIGBUEM

COURT OF APPEAL

( BENIN DIVISION )

MUHAMMAD S. MUNTAKA-COOMASSIE, JCA ( Presided )

KUMAI BAYANG AKAAHS, JCA

AMINA ADAMU AUGIE, JCA ( Read the Lead Judgment )

CA/B/270/2001

MONDAY, 7TH JULY, 2003

ACTION - Action for specific performance - Plaintiff therein - Failure of to show that he has discharged his own obligation under the agreement -  Effect

ACTION - Evidence and issues of fact arising in an action - Materiality of -  How determined

CONTRACT - Acceptance of an offer - When takes place

CONTRACT - Breach of contract - Claim therefor - Whether necessary to distinguish as special or general damages

CONTRACT - Contract of sale of land - When concluded

CONTRACT - Contract of sale of land - Whether specific performance will be ordered therein

CONTRACT - Person seeking to enforce a contract - Duty on

CONTRACT - Where silent as to time for performance - What time implied by law for the performance


COURT - Appellate court - When can correct errors in trial court’s judgment without ordering retrial

COURT - Attitude of to party claiming double compensation

COURT - Court or tribunal charged with performance of judicial functions -  Duty on to give reasons for its decisions - Rationale therefor

COURT - Duty on to refrain from awarding special damages and general damages as double compensation in respect of the same injury

COURT - Trial court - Evidence proffered before same - How treated thereby

COURT - Trial Judge - Duty on to resolve conflicts in evidence adduced before same

DAMAGES - Claim for breach of contract - Whether necessary to distinguish as special or general damages

DAMAGES - Special damages - General damages - Award of as double compensation in respect of the same injury - Duty on court to refrain therefrom

DAMAGES - Special damages - Need for to be supported by evidence

DAMAGES - Special damages - Party claiming - Duty on

DAMAGES - Special damages - Strict proof of - What amounts thereto

EQUITY - Purport of

EQUITY - Specific performance as equitable relief - Purport of

EVIDENCE - Adequate consideration of evidence - What amounts thereto EVIDENCE - Evaluation of evidence - Meaning and purport of

EVIDENCE - Evidence adduced before trial Judge - Conflicts therein Duty on trial Judge to resolve same

EVIDENCE - Evidence and issues of fact arising in an action - Materiality of - How determined

EVIDENCE - Evidence not supported by pleadings - Effect

EVIDENCE - Evidence proffered before trial court - How treated

JUDGMENT AND ORDERS - Trial court’s judgment - Errors therein When appellate court can correct without ordering retrial

JUDGMENT AND ORDERS - Perverse judgment - Meaning of

LAND LAW - Contract of sale of land - When concluded

LAND LAW - Contract of sale of land - Whether specific performance will be ordered therein

PLEADINGS - Evidence not supported thereby or evidence at variance with - Effect

PRACTICE AND PROCEDURE - Party claiming double compensation -

Attitude of court thereto

PRACTICE AND PROCEDURE - Reasonable time - What amounts to

WORDS AND PHRASES - ‘Reasonable’ - Meaning of

WORDS AND PHRASES - ‘Evaluation of evidence’ - Meaning of

WORDS AND PHRASES - ‘Perverse judgment’ - Meaning of

Issues:

1.              Was the learned trial Judge right in law when he granted the sum of N7.1 million as special damages, and N300,000.00 as general damages?

2.              Was the learned trial Judge right in law when he held that the appellant bank be unilaterally estopped from revoking the said contract of sale of land 14 months later since the appellant bank accepted the sum of N200,000.00 from the respondent as purchase price for the said land?

3.              Was the learned trial Judge right in law when he made an order directing specific performance compelling the appellant bank to carry out their own side of the agreement by handing over the original title deeds of the property and for the appellant bank to execute a deed of release in favour of the respondent?

4.              Was the learned trial Judge right in law in ordering perpetual injunction restraining the defendants by themselves, agents, servants or privies from disturbing the plaintiff in the enjoyment of, and his exclusive right to the land?

5.              Was the learned trial Judge right in law in holding that the 2 nd defendant was an agent of the appellant and is bound by the acts and conduct of the 2nd defendant?

6.              Was the learned trial Judge right in law in considering the conduct of the appellant bank in the light of the entire transaction in coming to his decision?

Facts:

There was an auction sale in the course of which the 1st appellant through its accredited agent, the 2nd appellant, offered to the public at large the sale of a parcel of land along Nnebisi Road, Asaba belonging to one of its customers who was unable to redeem a facility granted him by the bank, the 1st appellant. The respondent in the course of the auction sale emerged the successful bidder having beaten other contestants by offering the sum of N200,000.00. Consequent upon this the respondent was pronounced successful by the 2 nd appellant, the auctioneer and 1st appellant’s agent in the exercise. The respondent was further notified in writing to pay the sum of N200,000.00 failing which he would forfeit his chance to the next 2nd highest bidder. The respondent paid the said sum after which he was issued with purchase receipts, he was equally given the certified true copy of the title deeds and the certificate of occupancy.

The respondent then embarked on efforts and attempts to develop the property by engaging a draughtsman and a surveyor who were to do a plan and a Bill of Quantities for him. Some 14 months later, after writing several letters, the first appellant unilaterally repudiated the contract. When, after several request letters from the respondent, the appellants refused to carry out their own side of the contract by handing over the original title deed of the property and execute a deed of release in favour of the respondent, the respondent instituted this action before Delta State High Court of Justice sitting at Asaba claiming against the appellants specific performance, damages and injunction.

At the conclusion of the trial, the trial court granted the reliefs sought by the respondent and awarded special damages of N7.1m (seven million one hundred thousand naira), general damages of N300,000.00 (three hundred thousand naira). It equally ordered specific performance and awarded other declaratory reliefs.

Being dissatisfied with the decision, the appellants have appealed to the Court of Appeal.