Help (Nig) Ltd V Silver Anchor (Nig) Ltd (2006)

LAWGLOBAL HUB Lead Judgment Report

KATSINA-ALU, J.S.C.

This is an appeal by Help (Nigeria) Limited from a judgment of the Court of Appeal given on 12th December, 2000. The appellant company Help (Nigeria) Limited as plaintiff sued the respondent Company Silver Anchor (Nigeria) Limited as the defendant claiming against it the following reliefs:-

“1. A declaration that the plaintiffs are entitled to the assignment of the property known as Plot B2 at No.84 Ozumba Mbadiwe Street, Victoria Island, Lagos and comprised in a certificate of occupancy registered as No.19 at page 19 in Volume 1981 C at the Lands Registry, Ikeja.

2. An order for specific performance of the sale Agreement dated July 22, 1988 and order directing the defendants to execute a Deed of Assignment in plaintiff’s favour and to take all necessary steps by obtaining the consent of the Military Governor of Lagos State to the assignment of the said property known as Plot B2 at No. 84 Ozumba Mbadiwe Street, Victoria Island, Lagos and registered as No.19 at page 19 in Volume 1981 at the Lands Registry, Ikeja.
3. A declaration that the purported termination of the contract of sale of the aforesaid property vide the Defendant’s Solicitor’s letter of 25th November, 1988 by the defendants is wrongful, null, void and of no effect whatsoever.
4. A declaration that any purported sale, transfer, assignment or alienation to any person is equally null, void and of no effect.
5. A perpetual injunction restraining the defendants, their servants, agents, privies or otherwise from selling, leasing, assigning or dealing or alienating the said property to any other persons.
6. The sum of N500.00 for every day of default by the defendants commencing from 25th November, 1988 when the ultimatum given in plaintiff’s former Solicitor’s letter of 17th November 1988 expired to the date of compilation, representing agreed liquidated damages i.e. pre-estimated damages for non-completion of the said contract.

In the Alternative

7. The sum of N6,000,000.00 being special and general damages for breach of contract.

8.The plaintiff claims the sum of N320,000.00 being the refund of the part payment/deposit made by the plaintiff for the purchase of the said property, N600,000.00 loss of rent, N5,000,000.00 escalation cost, and other refunds as contained in the particulars herein together with interest at the rate of 35% per annum.” The trial court in its judgment held that the plaintiff failed to prove its case and consequently dismissed the plaintiff’s claim.

The trial court however directed that the sum of N320,000.00 which the plaintiff had paid as a deposit be refunded with interest at the rate of 21% per annum from the date of judgment till full liquidation.

On appeal to the Court of Appeal that court found that:-

“The conclusion to be arrived at on the evidence is that there was indeed a firm agreement between the parties that the defendant would sell and the plaintiff would buy an area of land depicted as B2 on exhibit B1 which said area measured 1924.930 sq. metres. I also hold that it was for this area of land that the plaintiff made the deposit of N320,000.00. I also hold that the plaintiff remained willing and ready to conclude the contract by paying the balance of N1.18m until the defendant improperly brought the contract to an end.”

The court below then allowed the appeal and set aside the judgment of the trial court. The court below proceeded to order as follows:-

“I order that defendant shall refund to the plaintiff the sum of N320,000.00 deposited for the purchase of the property. The defendant/respondent shall pay interest on the said amount at the rate of 21% per annum with effect from 18/1/89 when the case was filed to the date of this judgment and thereafter at 6% per annum until the judgment debt is fully liquidated.”

The plaintiff has further appealed to this court against the refusal of the Court of Appeal to make an order of specific performance. Both parties filed their respective briefs of argument. The plaintiff on page 2 of its brief of argument submitted two issues for determination in this appeal. These read:-

1. Whether in the proper exercise of its discretion, it is right, proper, fair and just for the lower court to refuse a decree of specific performance, in the light of its findings, particularly at pages 221 (line 8) to 224 (lines 1-34) and in view of the evidence on record.
2. Whether the Court of Appeal’s refusal to award the N500.00 per day claim for default is justified having regards to the state of evidence on record.

The defendant adopted the plaintiff’s above stated issues for the determination of this court.

I will deal with issue No.1 first. In its brief of argument the plaintiff contended in a nutshell that the Court of Appeal was in grave error when it failed to order specific performance after holding that the defendant breached the contract. The plaintiff criticized, at some length, the reasons the Court of Appeal gave for not ordering specific performance.

For its part, the defendant submitted that the plaintiff was not entitled to an order of specific performance on the main ground that the plaintiff had claimed in the alternative the refund of N320,000.00 with interest as well as damages. It was pointed out that the trial court as well as the lower court did order the refund of the said sum with interest. The lower court, however, noted that it was not in a position to order damages on the ground that the plaintiff did not lead any evidence in respect of damages.