LawPavilion Online


Back

SAMEK CONSTRUCTION COMPANY LIMITED v. MR. ISAAC ENYINNAYA EGEGE & ORS

(2018) LPELR-45487(CA)

In The Court of Appeal of Nigeria

On Friday, the 24th day of August, 2018

CA/PH/121/2009


Before Their Lordships

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria


Between

SAMEK CONSTRUCTION CO. LTD - Appellant(s)

AND

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


Other Citations

; ;


Summary

INTRODUCTION:
This appeal borders on Civil Procedure.
FACTS:
This appeal was filed against the judgment of the Abia State High Court, sitting at Osisioma delivered on the 20th day of June, 2005 by Hon. Justice T. U. Uzokwe, J. The suit which gave rise to this appeal was commenced by the plaintiff/appellant against the defendants/respondents wherein the appellant by its further amended statement of claim sought for the grant of some reliefs. 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 N20,000.00 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-??-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. Dissatisfied, the Appellant appealed to the Court of Appeal.

ISSUES:
The Court determined the appeal on theses issues couched as follows:

Issue 1 
Was the lower Court correct in holding that it was the appellant that breached the contract over the 66 plots of land. 

Issue 2
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. 

DECISION/HELD:
On the whole, the Court found no merit in the appeal and accordingly dismissed same.


Read Full Judgment