PATNASONIC INDUSTRIES LTD v. BASSEY

CITATION: (2019) LPELR-46914(CA)

In the Court of AppealIn the Abuja Judicial Division

Holden at Abuja

ON FRIDAY, 1ST MARCH, 2019Suit No: CA/A/199/2015

Before Their Lordships:

ABDU ABOKI Justice, Court of AppealADAMU JAURO Justice, Court of AppealEMMANUEL AKOMAYE AGIM Justice, Court of Appeal

BetweenPATNASONIC INDUSTRIES LTD - Appellant(s)

AndARCHIBONG BASSEY ESQ. - Respondent(s)

RATIO DECIDENDI

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1. ACTION - CAUSE(S) OF ACTION: Definition of cause ofaction; How the Court determines reasonable cause ofaction"A cause of action has been defined by Courts to mean acombination of facts and circumstances giving rise to theright to file a claim in Court for a remedy. It includes allthings which are necessary to give a right of action andevery material fact which has to be proved to entitle theplaintiff to success. See UBN Vs Umeoduagu (2004) 13NWLR (part 890) 352. In the case of Bakare Vs N.R.C(2007) 17 NWLR (part 1064) 606, the Supreme Courtheld that a cause of action is made up of two factors,that is, the wrongful act of the defendant and theconsequential damage occasioned to the plaintiff. Seealso Yusuf Vs Co-operative Bank Ltd (1994) 7 NWLR (part359) 676; Dantata Vs Mohammed (2000) 7 NWLR (part664) 176; Union Bank of Nigeria Ltd Vs Penny - Mart Ltd(1992) 5 NWLR (part 240) 228. Therefore to determinewhether a plaintiff's claim discloses a cause of actionsuitable to be tried, it is necessary only to have regard tothe claim of the plaintiff which alone determines whetherthe claim brought before the Court is justiciable. SeeOgbimi Vs Ololo (1993) NWLR (part 304) 128."Per JAURO,J.C.A. (Pp. 18-19, Paras. E-D) - read in context

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2. APPEAL - FORMULATION OF ISSUE(S) FORDETERMINATION: Essence of formulation of issues fordetermination; whether an appellate Court can adopt,reframe or reformulate issues for determination"The law is settled that the essence of the formulation ofissues is to reduce the grounds of appeal into terse,compact formulations which take cognizance andconsideration of the same issues running through morethan one ground of appeal. See Sanusi Vs Ayoola (1992)NWLR (part 265) 275. To this end, where issues forresolution in an appeal are formulated by the parties, anappellate Court can adopt, reframe or reformulate itsown which are, in i ts opin ion proper for thedetermination of the appeal. See Aduku Vs Adejoh(1994) 5 NWLR (part 349) page 582 and Dung Vs Gyang(1994) 8 NWLR (part 362) page 315. In Edem Vs CanonBalls Ltd & Anor (2005) 12 NWLR (part 938) 27, theSupreme Court stated the circumstance when a Courtcan reframe issues for determination, thus per OguntadeJSC (as he then was);"Notwithstanding the fact that there is power in theCourt of Appeal to reframe issues for determination in anappeal before it, it is to be stressed that such power fallsto be exercised only in very limited circumstances whichincluded the following;1) Where the grounds of appeal raised are repetitivewith the result that issues formulated from them also arerepetitive.2) Where the issues formulated do not flow from thegrounds of appeal raised,3) Where the issues are poorly crafted in an appealwhere the grounds of appeal are explicit.4) Where issues framed have been unnecessarilyfragmented with the result that multiple issues areframed by parties."Per JAURO, J.C.A. (Pp. 12-13, Paras. C-D) - read in context

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3. CONTRACT - WRITTEN CONTRACT: Whether extrinsicevidence can be admissible to vary the terms of awritten contract"The law is that written agreement freely entered into bythe parties is binding on them. A Court of law is equallybound by the terms of any written agreement enteredinto by the parties. Where the intention of the parties toa contract is clearly expressed in a document, the Courtcannot go outside that document to give effect to theintention of the parties. The general principle is thatwhere the parties have embodied the terms of theircontract in a written document, extrinsic evidence is notadmissible to add to, vary, subtract from or contradictthe terms of the written instrument. See Okonkwo VsC.C.B (Nig) Plc (1997) 6 NWLR (part 507) page 48; Dalek(Nig) Vs Ompadec (2007) 7 NWLR (part 1033) page 402;UBN Ltd Vs Ozigi (1994) 3 NWLR (part 333) page 385 atpage 404; Nneji Vs Zakhem Con. (Nig) Ltd (2006) 12NWLR (part 994) page 297 SC; UBN Ltd Vs Sax (1994) 8NWLR (part 361) page 402."Per JAURO, J.C.A. (P. 20,Paras. A-E) - read in context

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4. CONTRACT - TERMS OF CONTRACT: Whether partiesare bound by the terms of their contract"The law is firmly established that parties are bound bythe terms of the agreement.In A-G RIVERS V. A-G AKWA IBOM (2011) 8 NWLR (PT1248) 31, it was held that:"Where parties have entered into a contract or anagreement voluntarily and there is nothing to show thatsame was obtained by fraud, mistake, deception ormisrepresentation, they are bound by the provisions orterms of the contract or agreement. This is because aparty cannot ordinarily resile from a contract oragreement just because he later found that theconditions of the contract or agreement are notfavourable to him.This is the whole essence of the doctrine of sanctity ofcontract or agreement. Moreover, a Court of law mustrespect the sanctity of the agreement reached by theparties, where they are in consensus ad idem as regardsthe terms and conditions freely and voluntarily agreedupon by them and expressed in a written form."See alsoAGROVET SINCHO PHAM LTD & ANOR V. DAWAKI & ORS(2013) LPELR 20364 (CA); ARJAY LTD. V. A.M.S. LTD.(2003) 7 NWLR (PT. 820) 577; SONA BREWERIES PLC. v.PETERS (2005) 1 NWLR (PT. 908) 478."Per ABOKI, J.C.A.(Pp. 27-28, Paras. E-D) - read in context

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5. DAMAGES - GENERAL DAMAGES: Meaning, natureand scope of general damages"It is well settled law that general damages are the kindof damages, which the law presumes to flow naturallyfrom the wrong complained of. They are such as theCourt will award in the circumstances of a case, in theabsence of any yardstick with which to assess the awardexcept by presuming the ordinary expectations of areasonable man. See Yalaju Amaye Vs A.R.E.O Ltd (1990)NWLR (part 145) 422; Lar Vs Stirling Astaldi Ltd (1977)11/12 SC 53; Dauda Vs Lagos Building InvestmentCompany Ltd & Ors (2010) LPELR - 4024 (CA)."PerJAURO, J.C.A. (Pp. 25-26, Paras. F-C) - read in context

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ADAMU JAURO, J.C.A. (Delivering the Leading

Judgment): The appeal herein emanated from the decision

of the Federal Capital Territory High Court of Justice

Abuja, delivered in Suit No. FCT/HC/CV/275/2011 by Hon.

Justice A. A. L Banjoko on 9th December, 2013.

The facts of the case as can be gleaned from the record,

were that the Respondent as plaintiff initiated this action,

against the appellant as the Defendant before the lower

Court. The suit was initially brought under the Undefended

List procedure.

However, after considering the facts deposed to by the

parties, the suit was transferred to the General Cause List

and the lower Court ordered parties to file fresh pleading.

The Plaintiff/Respondent pleaded that sometimes in 2009,

he applied for a unit of 3 - bedroom detached bungalow

located within the Defendant's Estate at Mbora Jabi District

of Abuja, FCT. The Defendant considered his application

and made him an offer. The disposal price for the bungalow

was Fifteen Million Naira (N15,000,000.00k) and he paid

the sum of Ten Thousand Naira (N10,000.00k) as

application fee. On the 9th of December, 2009 he paid the

sum

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of Five Hundred Thousand Naira (N500,000.00k) as initial

deposit, and a later payment of the sum of One Million

Naira (N1,000,000.00k) on the 22nd of January, 2011 for

the bungalow.

On the 12th of May 2011, when he made a visit to the

Defendant’s office, he was surprised to discover that the

bungalow sold for Twenty Million Naira (N20,000,000.00k).

Realizing this new price, he wrote to the Defendant on the

13th of May 2011, demanding refund of all the monies he

had paid for the bungalow because he could not afford the

new price. The Defendant never refunded his money and

that prompted him to write another letter of demand

through his Solicitors dated the 7th day of September,

2011. In reply, the Defendant wrote on the 12th of

September, 2011 acknowledging that he had paid the sum

of One Mil l ion, Five Hundred Thousand Naira

(N1,500,000.00). Till date the Defendant has not paid this

money after several demands, and their act had deprived

him of the opportunity of buying another property. The

plaintiff/Respondent sought the following reliefs from the

lower Court:

1. A refund of One Million, Five Hundred Thousand

Naira only (N1,500,000.00k) being

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the money the plaintiff paid as part payment to the

Defendant for the one (1) unit of 3 - bedroom

bungalow belonging to the Defendant's estate located

at Mbora, Jabi District, Abuja, FCT.

2. Twenty one per cent (21%) interest rate of the

judgment sum per annum from the date of Judgment

till the final liquidation of the Judgment sum.

3. A Declaration that the act of unilateral upward

review from N15,000,000k to N20,000,000.00k for the

one (1) unit of 3 - bedroom detached bungalow

allocated to the Plaintiff by the Defendant amounts to

a breach of contract.

4. The sum of N15,000,000.00k as general damages

for the refusal of the Defendant to refund the plaintiff

his money despite series of verbal and written

demands both by the Plaintiff and his solicitors and

for detaining the Plaintiff's money thus making him

to lose an opportunity offered him elsewhere to buy

another house.

5. The cost of this action.

In their Statement of Defence, the defendant/appellant

pleaded that on the 9th of December, 2009, it made a

provisional offer setting out the terms of the offer which

was signed by C. O. Ogwumike, the Company Secretary.

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However, the Plaintiff was unable to accept and perform

his obligation as contained in the Provisional Offer. On the

13th of May, 2011, he wrote to the Managing Director

demanding to have a refund of the sum of One Million, Five

Hundred Thousand Naira (N1,500,000.00k) on account of

breach of contract. In its Customer's Ledger covering a

period from the 1st of January, 2010 to 12th of May, 2011,

the Plaintiff had paid that sum of money as at January,

2010 but he paid it after the expiration of thirty (30) days

contrary to the Provisional Offer, which also did not make

any provision for part payment. The price hike on the

Property from Fifteen Million Naira (N15,000,000.00k) to

Twenty Million Naira (N20,000,000.00) was made after the

expiration of the thirty (30) days as envisaged by the

Provisional Offer, which took into account a shift in market

forces.

It further stated that the Plaintiff's claim was neither a debt

nor pecuniary in nature, but that of non-compliance with

the Provisional Offer. The Provisional offer they made to

him might have been a contract of sale equal to a full

a l locat ion i f the sum of Fi f teen Mil l ion Naira

(N15,000.000.00k) less the

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One Mi l l i on , F i ve Hundred Thousand Na i ra

(N1,500,000.00k) which had been paid. As the Respondent

paid One Million, Five Hundred Thousand Naira

(N1,500,000.00k) the defendant queried how did he arrive

at the sum of Fifteen Million Naira (N15,000,000.00k) as

damages without providing particulars for it? In conclusion,

it denied being indebted to the Plaintiff in the sum of

Fifteen Million Naira (N15,000,000.00k) or by any other

sum whatsoever. In addition, they counterclaimed against

the respondent and prayed for the following reliefs,

namely:

i) "A DECLARATION that the plaintiff/Defendant to

the Counterclaim is in breach of its obligations to the

Defendant/Counterclaimant as contained in the

Provisional Letter of Allocation of one (1) unit of 3

Bedroom Detached Bungalow House from the

Defendant to the Plaintiff.

ii) AN ORDER directing the Plaintiff/Defendant to the

Counterclaim to pay damages in the sum of N20

Million to the Defendant/Counterclaimant.

iii) AN ORDER Directing the plaintiff/Defendant to

the Counterclaim to pay to the Defendant/

Counterclaimant interest on (ii) above at the rate of

4% above the Central Bank of Nigeria Monetary

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Policy Rate per annum from 9th of December, 2009

till the date judgment is delivered; and thereafter on

the whole judgment debt at the rate of 10% per

annum from the date of judgment until the whole

judgment Debt is finally satisfied or liquidated."

The judgment of the lower Court was delivered on 2nd

December, 2013 wherein the learned trial judge held as

follows:

1. "The Plaintiffs is entitled to the immediate refund

of the sum of One Million, Five Hundred Thousand

Naira only (N1,500, 000.00k) being the money paid as

part payment to the Defendant for the sale of one (1)

unit of 3- bedroom bungalow belonging to the

Defendant's estate located at Mbora, Jabi District

Abuja, FCT. This leg of claim is found to be

meritorious after being proven and especially after

the admission by the defence of its indebtedness in

this regard.

2. As regards the claim for Twenty one per cent (21%)

interest rate of the judgment sum per annum from

the date of judgment till the final liquidation of the

judgment sum. There was no part of the agreement

entered into by the parties that showed that this was

agreed upon by the parties in the event of a breach,

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nor did the agreement show that this was an

anticipatory claim or an established mercantile

custom in respect to sale for houses. How this claim

for 21% was arrived at, is best left to their own

imagination but the justification was not proved

before this Court…...

The claim for 21% interest was unforeseeable and is

not justified before this Court. In any event, by

Paragraph 1 (iv), of the Contract, it was understood

that any deposit made, may be refunded without

attracting any interest. So the parties clearly by

express agreement signed away the right to calculate

and refund any interest on deposits made. However,

the Court has inherent powers by the provision of

Order 39 Rule 7 to make an Order for 10% interest

per annum, on the sum paid from the date of this

judgment until final liquidation of the judgment sum.

As regards the reliefs sought for a declaratory relief

declaring the act of unilateral upward review from

N15,000,000.00k to N20,000,000.00k for the one (1)

unit of 3-bedroom detached bungalow allocated to the

Plaintiff by the Defendant as amounting to a breach

of contract, ....this prayer is accordingly refused and

dismissed.

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As regards the claim for the sum of N15,000,000.00k

as general damages for the refusal of the Defendant

to refund the plaintiff his money despite series of

verbal and written demands, .... the Court will award

general damages in the sum of N500, 000.00k. As

regards the cost of this action, it is clear that had the

defendants refunded the sum deposited as claimed,

this action would have been pointless and the plaintiff

had to incur some costs in seeking to recover his

money. Therefore, a cost of N200, 000.00k is

accordingly awarded.

As regards the counterclaim for:

i) A DECLARATION that the Plaintiff/Defendant to the

counterclaim is in breach of its obligation to the

Defendant/Counterclaim as contained in the Provision

Letter of Allocation of one (1) unit of 3 Bedroom

Detached Bungalow House from the Defendant to the

Plaintiff. On this, this claim would have been valid

had the defendants not condoned the breach and

accepted and continued to prompt the plaintiff for

further payments. This Declaration is accordingly

refused and dismissed.

ii) An Order directing the Plaintiff/Defendant to the

counterclaim to pay damages in the sum of N20

Million

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to the Defendant/Counterclaimant This order is

accordingly refused, as the Plaintiff in this counter-

claim has not shown the Court what damages they

incurred more especially as they stated they had sold

off the property and so did not suffer any loss. This

leg of claim is accordingly dismissed.

iii) An Order directing the Plaintiff/Defendant to the

Counterclaim to pay to the Defendant/Counter-

claimant interest on (ii) above at the rate of 4% above

the Central Bank of Nigeria Monetary Policy Rate per

annum from 9th of December, 2009 till the date

judgment is delivered; and thereafter on the whole

judgment debt at the rate of 10% per annum from the

date of judgment until the whole judgment Debt is

finally satisfied or liquidated.

This order is accordingly refused and dismissed for

the following reason.

It is ridiculous as unjustified and not within the

contemplation of the parties. Finally, judgment is

entered in favour of the Plainti f f and the

Defendant/Counterclaimant's action is accordingly

refused and dismissed."

Dissatisfied with the aforementioned decision, Appellant

filed notice of appeal before the lower Court on 7th

February, 2014.

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The notice of appeal was amended by the order of Court,

and was deemed amended on 30th January, 2018. The

amended notice of appeal contained six grounds of appeal

and their particulars. The Appellant sought the Court to

allow the appeal and set aside the judgment of the lower

Court. The record of appeal was compiled and deemed

transmitted to the Court on 30th January, 2018.

Pursuant to the said notice of appeal, parties filed and

exchanged their briefs of argument in accordance with the

rules of Court. The Appellant's brief of argument settled by

Hammed O. Ogunbiyi Esq., is dated 9th April, 2018 and

deemed filed on 26th September, 2018. The Appellant also

filed Appellant's Reply brief dated 12th December, 2018

and deemed filed on 14th January, 2019. The Respondent's

brief of argument on the other hand was settled by Victor

C. Chimezie Esq., and is dated 25th October, 2018 and filed

the same date. The appeal was heard on 14th January,

2019. The Appellant was represented by Hammed Ogunbiyi

Esq., with Ajuma Isah Esq., who adopted the Appellant's

brief and reply brief and urged the Court to set aside the

judgment of the lower Court.

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The Respondent for his part was represented by Victor C.

Chimezie Esq., who also adopted the Respondent's brief of

argument and prayed the Court to dismiss this appeal, with

substantial cost and uphold the decision of the lower Court.

From its six grounds of appeal, Appellant's counsel distilled

four issues for determination as follows:

1. "Whether the Respondent had a reasonable cause

of action (Ground 1).

2. Whether the Appellant can review the purchase

price without recourse to the Respondent (Ground 4).

3 . Whether the Respondents payment o f

N1,000,000.00k after the expiration of 30 days

ultimatum and upward review of the purchase price to

N17,000,000.00k does not amount to acceptance by

conduct. (Ground 5)

4. Whether the Respondent is entitled to damages or

reliefs sought at the lower Court. (Grounds 2, 3 and

6)."

The Respondent formulated three issues for determination

as follows:

a) 'Whether considering "paragraph 1 (iv) of Exhibit

A", the Respondent is not entitled to the refund of the

sum of N1,500,000.00 (One Million Five Hundred

Thousand Naira) only, by the Appellant being the

total amount deposited for the purchase of one (1)

unit of 3 Bedroom

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Detached Bungalow at their Patnasonic Estate Nbora

Jabi District Abuja.

b) Whether considering the attitude of the Appellant,

the Respondent is not entitled to damages against the

Appellant for wrongfully withholding his money.

c) Whether this appeal is not an abuse of Court

process in view of the Appellant's testimony before

the Court below.

The law is settled that the essence of the formulation of

issues is to reduce the grounds of appeal into terse,

compact formulations which take cognizance and

consideration of the same issues running through more

than one ground of appeal. See Sanusi Vs Ayoola (1992)

NWLR (part 265) 275. To this end, where issues for

resolution in an appeal are formulated by the parties, an

appellate Court can adopt, reframe or reformulate its own

which are, in its opinion proper for the determination of the

appeal. See Aduku Vs Adejoh (1994) 5 NWLR (part

349) page 582 and Dung Vs Gyang (1994) 8 NWLR

(part 362) page 315. In Edem Vs Canon Balls Ltd &

Anor (2005) 12 NWLR (part 938) 27, the Supreme

Court stated the circumstance when a Court can reframe

issues for determination, thus per Oguntade JSC (as he

then was);

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"Notwithstanding the fact that there is power in the

Court of Appeal to reframe issues for determination

in an appeal before it, it is to be stressed that such

power falls to be exercised only in very limited

circumstances which included the following;

1) Where the grounds of appeal raised are repetitive

with the result that issues formulated from them also

are repetitive.

2) Where the issues formulated do not flow from the

grounds of appeal raised,

3) Where the issues are poorly crafted in an appeal

where the grounds of appeal are explicit.

4) Where issues framed have been unnecessarily

fragmented with the result that multiple issues are

framed by parties.

From the circumstance of this case and the grounds of

appeal herein, the issues in this appeal can be summarized

as follows:

1) Whether the Respondent had a reasonable cause of

action to warrant him entitled to the refund of the

sum of N1,500,000.00k by the Appellant being the

total amount deposited for the purchase of one (1)

unit of 3 bedroom detached bungalow from the

Appellant.

2) Whether the lower Court rightly awarded the sum

of N500,000.00k as damages and N200,000.00k as

costs of action in favour of the Respondent.

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ISSUE ONE

Whether the Respondent had a reasonable cause of

action to warrant him entitled to the refund of the

sum of N11,500,000.00k by the Appellant being the

total amount deposited for the purchase of one (1)

unit of 3 bedroom detached bungalow from the

Appellant.

In arguing this issue, learned counsel for the Appellant

submitted that the statement of claim, the document in

support of the claim and the deposition of the witness to

the claim disclose on the face of it what has caused or

brought into existence the action which the claimant is

complaining about against the defendant. He referred to

Atoyebi Vs Barclays Bank Plc (2016) 15 NWLR (part

1534) 34; Nigerian Ports Plc Vs S.E.S Ltd (2016) 17

NWLR (part 1541) 191 at page 208 paragraphs B - D.

Learned counsel submits that the Respondent did not

establish his claim on the upward review from

N15,000,000.00k to N20,000,000.00k as claimed, and the

judgment of the lower Court was not based on same. He

contended that the Respondent cannot approbate and

reprobate at the same time, for the pleadings and evidence

of the

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Respondent at the lower Court contradicts themselves and

the Court is not allowed to go on voyage of discovery when

the Respondent did not set his facts straight. Counsel

argued that when a claimant cannot establish his claims

based on the statement of claim and evidence adduced,

such suit is bound to be struck out. He said the lower Court

rather than striking out the suit, found its judgment on

upward review of N17,000,000.00k not put forward by the

claimant.

It was further contended that the appellant having

reviewed the purchase price after the expiration of 30 days

and did informed the Respondent when he visited the

Appellant's office and the Respondent paid N1,000,000.00k

after the due date, it goes to show that the Respondent

acted on the upward review by the Appellant. He submits

that the Respondent is barred due to estoppel by conduct to

bring any suit for breach of contract when he knows the

terms he agreed to, in making the Appellant to believe that

he agrees with the new purchase price of the property

when he paid N1,000,000.00k on the 22nd January, 2011.

Learned counsel further maintained that where a man by

word or conduct willfully made

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a representation of a state of facts to another and thereby

induced that other to believe that the state of things were

as represented by that person and that other took him by

his word or action and acted upon that representation

either by himself or his representative in interest cannot

turn around to say or behave as if the state of things were

not as he represented them. That he will be estopped from

asserting the contrary. Reliance was placed on the case of

Silas Okoye Okonkwo & Ors Vs Chief Agogbna Kpajie

& Ors (1992) 2 NWLR (part 226) 633. Counsel

contended that the representation of the Respondent made

the Appellant believe that he will continue with the

contract and thereby caused the Appellant continued

approach for the balance of the purchase price. He urged

the Court to uphold the argument of the Appellant and

resolve this issue in its favour.

Learned counsel for the Respondent submitted that parties

are bound by their agreement. He said by paragraph 1 (iv)

of Exhibit A on page 5 of the record of appeal, parties

agreed that any deposit made is refundable. That the

Respondent made a deposit payment of N1,500,000.00k

(One Million Five Hundred

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Thousand Naira) only and that since he did not complete

his payment within the stipulated period, by the said clause

1 (iv), the Appellant is entitled to be refunded. Counsel

submitted that the Appellant has no legal basis to hold unto

the Respondent's money, having asserted that the

Respondent made the last payment of N1,000,000.00k after

the expiration of the offer made to him.

On the Appellant's submission that the subsequent payment

of the sum of N1,000,000.00k after the expiration of the

offer made to him by them amount to the Respondent

accepting the reviewed price, learned counsel submitted

that the Appellant's submission on this point is founded on

nothing. He submits that assuming without conceding that

the subsequent payment by the Respondent for the sum of

N1,000,000.00k (One Million Naira) only, after the

expiration of the offer made to him by the Appellant

amounted to accepting the reviewed price, the Respondent

would still be entitled to a refund of the money he

deposited with the Appellant since the said amount of

N1,000,000.00k (One Million Naira) only, does not

represent the full and final payment.

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He referred to clause 2 of Exhibit A, on page 51 of the

record of appeal. Learned counsel further maintained that

parties are bound by their agreement and cannot renege on

their contractual obligations, and the Courts are enjoined

to give life to the wishes of the parties. He referred to the

case of Afrilec Ltd Vs Lee (2013) NWLR (part 1349)

page 14 at page 14 - 15. In concluding counsel argued

that the Respondent is entitled to a refund of the sum of

N1,500,000.00k (One Million Five Hundred Thousand

Naira) only, being the amount of money deposited by the

Respondent with the Appellant for consideration that failed.

The Appellant’s contention under this issue is that the

Respondent's action before the lower Court did not disclose

cause of action and therefore the Respondent is not entitled

to a refund of his money paid to the appellant, for the

purchase of one unit of 3 bedroom detached bungalow from

the Appellant. A cause of action has been defined by Courts

to mean a combination of facts and circumstances giving

rise to the right to file a claim in Court for a remedy. It

includes all things which are necessary to give a right of

action and every material fact which has to be

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proved to entitle the plaintiff to success. See UBN Vs

Umeoduagu (2004) 13 NWLR (part 890) 352. In the

case of Bakare Vs N.R.C (2007) 17 NWLR (part 1064)

606, the Supreme Court held that a cause of action is made

up of two factors, that is, the wrongful act of the defendant

and the consequential damage occasioned to the plaintiff.

See also Yusuf Vs Co-operative Bank Ltd (1994) 7

NWLR (part 359) 676; Dantata Vs Mohammed (2000)

7 NWLR (part 664) 176; Union Bank of Nigeria Ltd Vs

Penny - Mart Ltd (1992) 5 NWLR (part 240) 228.

Therefore to determine whether a plaintiff's claim discloses

a cause of action suitable to be tried, it is necessary only to

have regard to the claim of the plaintiff which alone

determines whether the claim brought before the Court is

justiciable. See Ogbimi Vs Ololo (1993) NWLR (part

304) 128.

The Plaintiff's claim in this case by his statement of claim is

anchored on the unilateral upward review of the cost of a

unit of 3 - bedroom flat offered to him by the defendant

from N15,000,000.00k to N20,000,000.00k and the failure

of the Defendant/Appellant to refund the money he paid to

the Appellant despite several demands.

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The relationship entered between the Appellant and the

Respondent is regulated by a written document which is

Exhibit "A". The law is that written agreement freely

entered into by the parties is binding on them. A Court of

law is equally bound by the terms of any written agreement

entered into by the parties. Where the intention of the

parties to a contract is clearly expressed in a document, the

Court cannot go outside that document to give effect to the

intention of the parties. The general principle is that where

the parties have embodied the terms of their contract in a

written document, extrinsic evidence is not admissible to

add to, vary, subtract from or contradict the terms of the

written instrument. See Okonkwo Vs C.C.B (Nig) Plc

(1997) 6 NWLR (part 507) page 48; Dalek (Nig) Vs

Ompadec (2007) 7 NWLR (part 1033) page 402; UBN

Ltd Vs Ozigi (1994) 3 NWLR (part 333) page 385 at

page 404; Nneji Vs Zakhem Con. (Nig) Ltd (2006) 12

NWLR (part 994) page 297 SC; UBN Ltd Vs Sax

(1994) 8 NWLR (part 361) page 402.

For clarity and ease of reference, Exhibit A is hereunder

reproduced:

“December 9, 2009

Ref. No, PIL/10/001/

Archibong Bassey Esq.

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Securities and Exchange Commission Abuja

Dear Sir,

Following your application for one (1) unit of 3-

Bedroom Detached Bungalow at our Patnasonic

Estate, Jabi District, Abuja, FCT and in consideration

of your deposit of Is N500,000.00k (Five Hundred

Thousand Naira) you are hereby offered House No.

36, Peter Chidolue Crescent, Patnasonic Estate,

Nbora, Jabi District, Abuja upon the following terms

and conditions:

i) The disposal fee is currently Fifteen Million Naira

(N15 ,000 ,000 .00k l eav ing a ba lance o f

N14,500,000.00k (Fourteen Million Five Hundred

Thousand Naira).

ii) Application form fee of Ten thousand naira

(N10,000.00k)

iii) The price is subject to review before payment.

iv) Any deposit made, may be refunded without

attracting any interest.

v) This letter of offer is not transferable.

2. If the offer is acceptable to you. Please forward

your bank draft for the above sum in favor of

Patnasonic Industries Limited within thirty (30) days

of the date of this offer, to enable us issue you with a

formal letter of allocation. Failure to pay within the

time stipulated above would result to the allocation of

the

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property to other applicants without further recourse

to you.

3. Other terms and conditions of allocation will be

detailed in the subsequent letter of allocation and

agreement.

Yours faithfully,

PATNASONIC INDUSTRIES LIMITED

C. O. OGWUMIKE

For Executive Chairman."

From the content of the above exhibit though the Appellant

reserves the power to review the prize of the property

before payment, the document made it clear that any

deposit made, may be refunded. The exhibit also made it

clear that if the offer is acceptable to the Respondent, he is

to forward a bank draft for the sum agreed to the Appellant

within 30 days of the offer. The document further provides

that failure of the Respondent to pay the sum provided

within the time stipulated, would result in the allocation of

the property to other applicants.

It is clear in this case that the respondent did not comply

with the said 30 days period. The Appellant therefore was

entitled to dispose the property in question in line with the

conditions in the allocation letter Exhibit 'A'. However, the

Appellant has no legal right whatsoever, to retain the

Respondent's sum of

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N1,500,000.00k under the said document (Exhibit "A"). In

my humble view, the lower Court was right when it granted

this leg of claim to the Respondent. The lower Court's

decision in this respect cannot be faulted and is hereby

upheld. This issue is hereby resolved against the Appellant

and in favour of the Respondent.

ISSUE TWO

In arguing this issue, learned counsel for the Appellant

submitted that the object of an award for damages is to

give compensation to the Plaintiff for the damages, loss or

injury which he has suffered. That for the damages to be

awarded, there must be a wrong committed. He referred to

Adene Vs Dantunbu (1994) 2 NWLR (part 328) 509.

He submits that in the instant case, the appellant did not

breach the contract between the parties. He contended that

the award of N500,000.00k as general damages by the

lower Court against the Appellant does not flow from the

findings of the Court and such cannot stand.

It was argued that assuming without conceding that the

Respondent is entitled to damages, the Appellant is only to

refund what the offer stipulates. Counsel submits that

where parties by their agreement excluded or limited

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their liabilities, that is, fixed the amount which is to be paid

by way of damages in the event of any breach, a Court will

not go outside the contract in search of more palatable

terms, for one of the parties to the detriment of the other

party. He stated that a Court is bound to interpret the

liability clause or clauses strictly as provided in the

contract . He referred to the cases of Zakhem

Construction (Nig) Vs Emmanuel Nenji (2006) 5 SC

(part II) 78; N.U.B Ltd Vs Samba Pet Co. Ltd (2006)

12 NWLR (part 992) 98. Finally he urged the Court to

hold that the limitation of liability clauses inures to benefit

of the Appellant, and that the damages for the breach of

contract is limited by the terms of offer. He also urged the

Court to resolve this issue in favour of the appellant and set

aside the judgment of the lower Court.

Learned counsel for the Respondent submitted that where

there is a right, there is a remedy as expressed in the latin

maxim Ubi Jus Ibi remedium and the case of Aliu Bello Vs

Attorney General of Oyo State (1986) 5 NWLR (part

45) page 828. It was contended on the authority of Aliu

Bello's case and the evidence adduced before the lower

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Court on the failure, neglect and/or refusal of the Appellant

to refund the Respondent his money since January, 2010 till

the date of judgment 2nd December, 2013, entitles the

respondent, to the remedy of general damages among other

claims. He referred to the case of Taylor Vs Ogheneovo

(2012) 13 NWLR (part 1316) page 46 at page 66.

It was further the submission of the learned counsel that

general damages need not be specifically proved, as it

naturally flows from the wrong complained of. He stated

that it is always expedient to give some particulars, which

will assist the Court in arriving at a just estimation. He

referred to Taylor Vs Ogheneovo (supra), NNPC Vs

Clifco Nig. Ltd (2011) LPELR 2022 (SC) page 26

paragraph F - G. On the strength of those authorities,

counsel contended that the Court below was right to have

awarded the sum of N500,000.00k as general damages and

costs of suit at N200,000.00k. He urged the Court to

uphold the judgment of the lower Court.

The only complain in issue two is the award of

N500,000.00k as general damages in favour of the

Respondent. It is well settled law that general damages are

the kind of damages,

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which the law presumes to flow naturally from the wrong

complained of. They are such as the Court will award in the

circumstances of a case, in the absence of any yardstick

with which to assess the award except by presuming the

ordinary expectations of a reasonable man. See Yalaju

Amaye Vs A.R.E.O Ltd (1990) NWLR (part 145) 422;

Lar Vs Stirling Astaldi Ltd (1977) 11/12 SC 53; Dauda

Vs Lagos Building Investment Company Ltd & Ors

(2010) LPELR - 4024 (CA). The Respondent in this case

has made several demands both verbal and written to the

Appellant for the refund of his money deposited in

accordance Exhibit 'A', but the Appellant failed to refund

the said money to the Respondent. The Respondent having

been denied use and access to his money for years, is at

least entitled to some form of compensation. The Appellant

having flagrantly abuse its Exhibit 'A' by refusing to adhere

to the terms contained therein, the lower Court rightly

awarded the said sum of N500,000.00k as general damages

to the Respondent, which is justified by the fact that the

respondent had suffered physical losses from the omission

of the Appellant. From the foregoing, this issue is resolved

against the Appellant and in favour of the Respondent.

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Having resolved the two issues for determination in this

appeal against the Appellant, it is crystal clear that the

appeal is devoid of any merit, same is hereby dismissed.

The judgment of the lower Court delivered in Suit No.

FCT/HC/CV/275/2011 by Hon. Justice A. A. I. Banjoko on

9th December, 2013 is hereby affirmed. There will be no

order as to costs.

ABDU ABOKI, J.C.A.: I have had the privilege of reading

before now, the lead judgment just delivered by my

Learned Brother ADAMU JAURO, JCA. I adopt as mine, His

Lordship's reasoning and the conclusions arrived therein.

I am also in agreement that from the tone of Paragraph 1

(iv) of Exhibit A, the parties agreed that any deposit made

may be refunded without attracting any interest.

The law is firmly established that parties are bound by the

terms of the agreement.

In A-G RIVERS V. A-G AKWA IBOM (2011) 8 NWLR

(PT 1248) 31, it was held that:

"Where parties have entered into a contract or an

agreement voluntarily and there is nothing to show that

same was obtained by fraud, mistake, deception or

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misrepresentation, they are bound by the provisions or

terms of the contract or agreement. This is because a party

cannot ordinarily resile from a contract or agreement just

because he later found that the conditions of the contract

or agreement are not favourable to him.

This is the whole essence of the doctrine of sanctity of

contract or agreement. Moreover, a Court of law must

respect the sanctity of the agreement reached by the

parties, where they are in consensus ad idem as regards

the terms and conditions freely and voluntarily agreed upon

by them and expressed in a written form."

See also

AGROVET SINCHO PHAM LTD & ANOR V. DAWAKI &

ORS (2013) LPELR 20364 (CA); ARJAY LTD. V. A.M.S.

LTD. (2003) 7 NWLR (PT. 820) 577; SONA

BREWERIES PLC. v. PETERS (2005) 1 NWLR (PT.

908) 478.

From the foregoing, I hold the view that the Respondent

herein is entitled; vide Paragraph 1 (iv) of Exhibit A, to a

refund of the deposit made.

For this reason and for the more articulated reasons

proffered by my Learned Brother ADAMU JAURO JCA, I

also find that this appeal is devoid of merit and ought to be

dismissed. I accordingly dismiss same.

I subscribe to all the orders made in the lead Judgment.

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EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of

the judgment just delivered by my Learned brother, Lord

Justice Adamu Jauro, JCA. I agree with the reasoning,

conclusions and orders therein.

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Appearances:

Hammed Ogunbiyi, Esq. with him, Ajuma Isah,Esq. For Appellant(s)

Victor C. Chimezie, Esq. For Respondent(s)

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