FIDELITY BANK v. MARCITY CHEMICAL INDUSTRIES LTD & ORS
(2022)LCN/16350(CA)
In The Supreme Court
On Friday, January 21, 2022
SC.972/2015
Before Our Lordships:
Musa Dattijo Muhammad Justice of the Supreme Court of Nigeria
Chima Centus Nweze Justice of the Supreme Court of Nigeria
Helen Moronkeji Ogunwumiju Justice of the Supreme Court of Nigeria
Adamu Jauro Justice of the Supreme Court of Nigeria
Tijjani Abubakar Justice of the Supreme Court of Nigeria
Between
FIDELITY BANK PLC APPELANT(S)
And
1. MARCITY CHEMICAL INDUSTRIES LIMITED 2. OGUN STATE PROPERTY AND INVESTMENT COMPANY 3. BUREAU OF LANDS AND SURVEY ABEOKUTA, OGUN STATE RESPONDENT(S)
RATIO:
MEANING OF ‘REASONABLE CAUSE OF ACTION’
…..I start the resolution of issues with an excursion into the meaning of reasonable cause of action. ‘Reasonable cause of action’ has been defined in the English case of Drummond-Jackson v British Medical Association and Ors (1970) 1 W.L.R 688, 696, where Lord Pearson stated that:
…No exact paraphrase can be given, but I think ‘reasonable cause of action’ means a cause of action with some chance of success, when as required by paragraph (2) of the rule only the allegations in the pleadings are considered. If when these allegations are examined, it is found that the alleged cause of action is certain to fail, the Statement of Claim should be struck out.”
This definition was approved by this Court in the cases of Chief (Dr) Irene Thomas and Ors v The Most Reverend Timothy Omotayo Olufosoye [1986] LPELR-3237 [SC]; Ibrahim v Osim [1988] 3 NWLR (pt. 82) 257, 267. CHIMA CENTUS NWEZE, J.S.C.
MEANING OF ‘REASONABLE CAUSE OF ACTION’
In Dantata v Mohammed [2000] 7 NWLR (pt. 664) 176, 197, reasonable cause of action was defined as “a cause of action, which when only the allegations in the statement of claim are considered has some chance of success.” CHIMA CENTUS NWEZE, J.S.C.
POSITION OF LAW ON THE CONSIDERATION OF A CONTRACT BETWEEN PARTIES
When parties enter into a contract, they are bound by the terms set out therein. It is not the business of the Court to re-write the contract for the parties. Thus, whatsoever sum was agreed by the parties as their consideration shall stand. It is therefore, not within the province of the Court to query same, as such would amount to dictating the terms of the contract of the parties. However, it is crucial to know the consideration agreed (if any) by the parties and whether or not same was paid, as consideration is an essential feature of a valid contract and failure of consideration is a ground for repudiation of contract. See Odusoga v Ricketts [1997] 7 NWLR (pt. 511) 1: Anwasi v Chabasaya [2000] 6 NWLR (pt. 661) 408, 417; Nidocco Ltd v Gbajabiamila [2013] 14 NWLR (pt. 1374) 350, 382. CHIMA CENTUS NWEZE, J.S.C.
WHETHER AN APPELLATE COURT CAN DECIDE ON A FACT NOT APPEALED AGAINST
….I observe that, as it is well-known, a finding of fact not appealed against remains valid and subsisting. Such a decision cannot be disturbed by an appellate Court. The rationale for that principle is that no Court has jurisdiction to decide a point not subsumed as a ground of appeal. This must be so since an appellate Court is not a knight-errant looking for skirmishes all over the record of appeal. See Ukiri v Geco-Prakla (Nig.) Ltd [2010] 16 NWLR (pt. 1220) 544, 566; Adeyemi v Olakunri [1999] 14 NWLR (pt.638) 213-214; Nwabueze v Okoye [1988] 4 NWLR (pt. 91) 664. CHIMA CENTUS NWEZE, J.S.C.
POSITION OF LAW WHEN A TRIAL COURT EXPRESSES AN OPINION ON AN ISSUE NOT PLEADED
The principle of law is that when a trial Court expresses an opinion on an issue not pleaded, such opinion is an obiter dictum. See Bamgboye v University of Ilorin [1999] 10 NWLR (pt. 662) 290; Haruna v Abuja Investment and Property Development Co. Ltd [2021] 15 NWLR (pt. 1798) at 148. The obiter does not have any influence on the reason for its judgment and as such, it is not appealable. CHIMA CENTUS NWEZE, J.S.C.
POSITION OF LAW WHERE A TRIAL COURT BASED ITS DECISION ON A MERE STATEMENT MADE OBITER
Where a trial Court based its decision on a statement made obiter, that is not connected with the ratio of the decision, an appellate Court cannot rely on that obiter to vitiate the decision. See Haruna v Abuja Investment and Property Development Co. Ltd [2021] 15 NWLR (pt. 1798) 148. CHIMA CENTUS NWEZE, J.S.C.
POSITION OF LAW WHEN RAISING NEW ISSUE AT THE APPELLATE COURT
….it is pertinent at this stage to state that the appellate Courts do not always allow an appellant to raise and argue fresh issues or new points not raised in the lower Court. See Adegoke Motors v Adesanya [1989] 3 NWLR (pt. 109) 250. Ordinarily, an appellant who desires to raise a fresh issue or a new point on appeal is enjoined to seek and obtain leave to do so. CHIMA CENTUS NWEZE, J.S.C.
WHEN AN APPELLANT CAN RAISE NEW ISSUE AT THE APPELLATE COURT
However, the issue of jurisdiction constitutes an exception to this general principle for it [such an issue of jurisdiction] could be raised for the first time before an appellate Court, with or without leave. See Obiakor and Anor v The State [2002] 10 NWLR (pt. 776) 612, 626 G; Gaji v. Paye [2003] 8 NWLR (pt. 823) 583; Oyakhire v The State [2006] 7 SCNJ 319, 327 – 328; [2006] 15 NWLR (pt.1001) 157; Okoro v. Nigerian Army Council [2000] 3 NWLR (pt. 647) 77, 90 – 91; Ajakaiye v. Military Governor, Bendel State [1993] 9 SCNJ 242 and Yusuf v. Cooperative Bank Ltd [1994] 7 NWLR (pt. 359) 676. CHIMA CENTUS NWEZE, J.S.C.
WHETHER THE LEAVE OF COURT IS REQUIRED TO RAISE THE ISSUE OF JURISDICTION FOR THE FIRST TIME AT THE APPELLATE COURT
In effect, such an issue of jurisdiction could always be raised without leave. See Aderibigbe v. Abidoye [2009] 10 NWLR (pt. 1150) 592, 615 paragraphs C- G; Comptroller Nigeria Prisons Services Lagos v Adekanye [2002] 15 NWLR (pt. 790) 33; Obatoyinbo v Oshatoba [1996] 5 NWLR (pt. 450) 531; Management Enterprises Ltd v Otusanya [1987] 2 NWLR (pt 179) 188. CHIMA CENTUS NWEZE, J.S.C.
POSSITION OF LAW ON THE TIME FRAME TO RAISE THE ISSUE OF JURISDICTION
In consequence, it is never too late in law to raise the issue of jurisdiction because of its fundamental and intrinsic nature and effect in judicial administration. See Magaji v Matari [2000] 8 NWLR (pt 670) 722, 735;Akegbejo v Ataga[1998] 1 NWLR (pt 534) 459, 465; State v Onagoruwa [1992] 2 SCNJ 1; A.G., Lagos v Dosumu [1989] 3 NWLR (pt 111) 552. CHIMA CENTUS NWEZE, J.S.C.
WHETHER THE LEAVE OF COURT IS REQUIRED TO RAISE THE ISSUE OF JURISDICTION FOR THE FIRST TIME AT THE APPELLATE COURT
Indeed, leave of the appellate Court is unnecessary since it can itself raise it suo motu as soon as sufficient facts or materials are available for it to do so. See Obikoya v. The Registrar of Companies [1975] 4 SC 31, 35; NNPC v Orhiowasele and Ors (2013) LPELR-24710(SC); Elabanjo v Dawodu [2006] 15 NWLR (pt. 1001) 76; Ndaejo v. Ogunnava [1977] 1 SC 11; Chacharos v. Ekimpex Ltd [1988] 1 NWLR (pt. 68) 88; Bakare v. A.G. Federation [1990] 5 NWLR (pt. 152) 516; Oyakhire v. State [2006] 15 NWLR (pt. 1001) 157; Oloriode v. Oyebi [1984] 1 SCNLR 390; Ezomo v. Oyakhire[1985] 1 NWLR (pt 2) 193; Akegbejo v. Ataga[1998] 1 NWLR (pt 534) 459, 468; 469; Bronik Motors v. Wema Bank Ltd [1983] 6 SC 158; Senate President v Nzeribe [2004] 41 WRN 60; Odiase v Agho (1972) 1 All NLR (pt 1) 170; Dickson Moses v The State [2006] 7 SCM 137, 169. CHIMA CENTUS NWEZE, J.S.C.
POSITION OF LAW ON THE TERM REASONABLE CAUSE OF ACTION
The phrase “reasonable cause of action” means a cause of action with some chances of success when only the allegations in the Statement of Claim are considered. If when those allegations are examined, it is found that the cause of action is bound to fail, then the suit ought to be struck out. See BARBUS & CO. (NIG) LTD & ANOR v. OKAFOR-UDEJI (2018) LPELR-44501 (SC); RINCO CONSTRUCTION CO. LTD v. VEEPEE INDUSTRIES LTD & ANOR (2005) LPELR-2949 (SC); IBRAHIM v. OSIM (1988) LPELR-1403 (SC). ADAMU JAURO, J.S.C.:
CHIMA CENTUS NWEZE, J.S.C. (Delivering the Leading Judgment): The first respondent herein commenced an action at the High Court of Justice, Ogun State, by way of Writ of Summons against the appellant, the second and third respondents. They sought the following reliefs:
a) Declaration that the contract between the claimant and the 1st Defendant still subsists and binding.
b) Declaration that the unilateral repudiation and purported sale to a higher bidder is speculative and against the principle of fairness, equity, and justice, with consequent conferment of nullity on the purported sale.
c) An order directing the 1st and 3rd Defendants to conclude all processes leading to the execution of the Deed of Assignment in respect of all that landed property situate, lying and being part of Plot 1, block 1, Ibafo Obafemi-Owode Local Government Area, Ogun State and measuring approximately 116.559 Acres covered by sublease registered as No. 60 in Volume 486 at the Lands Registry in the office at Abeokuta in favour of the Appellant.
d) An order of perpetual injunction restraining the defendants by themselves, agents, servants and/or privies from alienating or dealing in the said 16.559 Acres of land belonging to the claim.
e) In the alternative, an order for general damages for the sum of N200,000,000.00 million payable to the Claimant.
f) Cost of this action.
At the trial, the appellant and first respondent filed their respective processes in support of their case. On their part, the second and third respondents remained passive participants in the proceeding as they did not file any processes before the Court. The appellant, subsequently, prayed for an order striking out the suit on the ground that it disclosed no reasonable cause of action and that the claim was frivolous, vexatious and constituted an abuse of the process of Court.
The trial Court in its judgment delivered on July 12, 2011, granted the appellant’s application and subsequently struck out the first respondent’s claim on grounds that it disclosed no cause of action.
Dissatisfied, the first respondent appealed to the Court of Appeal, [hereinafter, simply, referred to as “the lower Court”], which Court allowed the appeal, consequently setting aside the decision of the trial Court. This prompted the appellant’s appeal to this Court. Two issues were formulated for determination, namely:
1. Whether the lower Court was right in setting aside the decision of Saula J, when the Statement of Claim does not disclose a viable or reasonable cause of action?
2. Whether the lower Court was justified in setting aside the decision of Saula J., when there was no appeal against the judge’s finding that the appellant had rightly repudiated the agreement between the parties on grounds of failure to adhere to the stipulated deadline for payment?
On its part, the first respondent formulated one issue for determination, to wit:
Whether the Justices of the Court of Appeal were right in setting aside the decision of the trial Court, or whether this appeal should not be dismissed for lacking merit and the judgment of the Court of Appeal upheld to the effect that a triable issue has been disclosed by the statement of claim which can only be resolved through a full trial?
The second respondent formulated two issues for determination while the third respondent raised a sole issue for determination. I adopt the appellant’s two issues for determination. As shown above, the first issue was framed thus:
1. Whether the lower Court was right in setting aside the decision of Saula J, when the Statement of Claim does not disclose a viable or reasonable cause of action?
APPELLANT’S SUBMISSIONS
On issue one, learned senior Counsel for the appellant submitted that the lower Court took an inadequate view of the dispute. The said Court had held that the factual dispute between the parties was whether or not the sum of N150,000,000.00 paid by the first respondent or the N190,000,000.00 demanded by the appellant was the full purchase price for the sale of the land and the that this issue could not be resolved at a plenary trial.
He explained that the contention between the parties was whether the N40,000,000.00 [Forty Million Naira] allegedly earmarked for commissions and other sundry expenses formed part of the agreed consideration for the sale of the land. He cited Dunlop v Selfridge (1915) AC 847; Okupe v Laja (1961) 1 All NLR 78, 82; Halsbury’s Laws of England (4th Edition), Vol. 9 at 184.
He further submitted that the failure of the first respondent to pay the sums agreed within the stipulated deadline amounted to a failure of consideration and entitled the appellant to terminate the transaction.
The learned SAN further stated that the averments made by the first respondent in his Statement of Claim, never suggested that the transaction could have been considered ‘concluded’ without the payment of the outstanding balance of N40 Million. He added that the payment of the N40 million was a condition precedent to the emergence of a binding contract and that the payment was not merely incidental but formed part of the essence of the agreement between the parties.
While relying on the cases of Nnonye v Anyichie [1989] 2 NWLR (pt.101)110, 116; A-D; Adigun v Ayinde [1993] 8 NWLR (sic) 313, 516, it was posited that the Statement of Claim is one which should be dismissed summarily as it is manifestly unsupportable on the face of the averments therein and the provisions of the Land Use Act.
On issue two, learned senior Counsel submitted that the learned trial Judge was correct in holding that the N190 million was the agreed purchase price, adding that the appellant rightly repudiated the contract as a result of the first respondent’s failure to pay a stipulated deadline. He opined that the position of the lower Court that there was a factual dispute between the parties as to whether or not the full purchase price had been paid, is not a correct deduction from the pleadings. He explained that the term ‘purchase price’ cannot connote any meaning other than the total amount which a party has to pay in order to secure the purchase of a thing. He added that what was really crucial in the resolution of the appeal was whether the total payment was not made in good time, as held by the trial Court, to justify the appellant’s repudiation of contract.
He further stated that the first respondent did not specifically appeal against the holding of the trial Court, adding that since the lower Court struck out issue two (2) articulated for determination by the first respondent, the findings of the trial Court stand unchallenged.
Learned senior Counsel further submitted that another ground of objection to the sustainability of the first respondent’s claims is the fact that the reliefs being sought cannot be granted in the absence of positive averments to the effect that the Governor’s consent had been sought and obtained to the transaction. He referred to the provision of Section 22 of the Land Use Act, contending that the declaratory reliefs being sought for specific performance are not open to the first respondent as the transaction between the parties is in contravention of the above provision and therefore is, null and void. In support of his submissions, he cited Savannah Bank v Ajilo and Anor. [1989] 1 NWLR (pt.97) 305; Awojugbagbe Light Industries Ltd v Chinukwe [1995] 4 NWLR (pt. 390) 379; Calabar Central Cooperative and Credit Society Ltd v Ekpo [2008] 6 NWLR (pt.1083) 362; Olalomi Industries Ltd. v Nigeria Industrial Development Bank [2009] 16 NWLR (pt. 1167) 266.
It was further submitted that the Court cannot grant the reliefs sought by the first respondent as it cannot compel the Governor to grant his consent to the transaction in dispute as the Governor is under no obligation to grant his consent automatically. See R. A. Ukejianya v J. I. Uchendu 13 WACA 45; John Chiak v David Coker 14 WACA 50.
He added that the first respondent made their position all the more untenable since the interest of an innocent third party, who was not before the Court, is involved. See Warmington and Anon v Miller (1973) QB 877. He urged this Court to allow this appeal and dismiss, with costs, the claim on the ground that it is incompetent and discloses no reasonable cause of action.
RESPONDENTS’ SUBMISSIONS
On his part, learned counsel to the first respondent submitted that once the Statement of Claim discloses or raises some question of fact or law fit to be tried by the Court, the fact that the case of the plaintiff is weak or unlikely to succeed is not a ground for striking out the action. See Fumudoh v Aboro [1991] 9 NWLR (pt. 214) 210.
He further submitted that the first respondent did not at any time agree with the appellant that the sum of N190,000,000.00 (One Hundred and Ninety Million Naira only) represented the purchase price for the disputed land and that the appellant’s contention thereof was a deliberate misrepresentation of facts. See Gbadamosi v Akinloye [2013] 15 NWLR (pt. 1378) 455, 458.
He contended that the learned trial Judge erred when he pronounced on the terms of contract between the appellant and the first respondent whereas it, [the Court], was not seized of the facts contained therein. On the second issue, learned Counsel submitted that the absence of Governor’s consent raised by the appellant was not canvassed at the lower Court. He explained that leave of Court was required before a party can raise an issue not raised at the lower Court, and having failed to do so, this Court is incompetent to pronounce on the issue. See Corporate Ideal Ins. Ltd v Ajaokuta Steel Co. Ltd (supra); Nidocco Ltd v Gbajabiamila [2013] 14 NWLR (pt. 1374) 350, 356; Order 6 Rules 5 (1) (b) and (c) Supreme Court Rules.
It was further submitted that the appellant whose duty it was to seek and obtain Governor’s consent was estopped by law, to use it as an instrument of fraud thereby benefitting from his wrong, in a bid to escape liability. See NBN Ltd v Adedeji [1989] NWLR (pt.96) 212; Ugochukwu v CCB Ltd [1996] 6 NWLR (pt. 456) 524. He urged the Court to dismiss the appeal for being unmeritorious.
Learned counsel for the second respondent submitted that the issue of lack of Governor’s consent was never raised during the trial or at the Court of Appeal, thus making it a fresh issue which the appellant failed to obtain such a leave to canvass. That issue of the lack of Governor’s consent ought to be struck out by this Court. He pointed out that the fresh issue is not in any of the Grounds of Appeal, Order 6 Rule 5(1) (b) of the Supreme Court Rules. See Malami v Ohikhuare (2017) LPELR-42580 (SC); Sogunro v Yeku [2017] 9 NWLR (Pt. 1570) 200, 311, 339, 344; Ejiro v Okonkwo [1982] 11 SC 74.
He further submitted that it is the statutory role of the appellant to seek and obtain the Governor’s consent, being the holder of the Right of Occupancy, adding that having failed to obtain same, the appellant cannot now turn back to claim that the transaction did not receive the consent of the Governor which it failed to seek and obtain in the first place.
Learned Counsel explained that failure to obtain Governor’s consent, only makes the transaction voidable at best but it does not void the sale, especially where there is no evidence that the consent of the Governor was sought but not granted. See Yaro v Arewa Construction Ltd [2007] 17 NWLR (pt 1603) 333, 374. He urged the Court to strike out the fresh issue of lack of Governor’s consent.
On issue two, with reference to the case of Best Nig. Ltd v Blackwood Hodge Nig. Ltd (2011) LPELR-776 (SC) 23, learned counsel for the first respondent posited that parties are bound by the terms of their contract/agreement. He further submitted that the Courts cannot re-write the contract of parties, in line with the authority of Mekwunye v Imoukhuede (2019) LPELR-48996 (SC) 20. He also pointed out the principle that where the words of a contract are unambiguous, they must be given their ordinary meaning, as held in the case of Dalek Nig. Ltd v OMPADEC [2007] 7 NWLR (pt. 1033) 402, 441. On what elements determine the disclosure of a reasonable cause of action, and triable issue, and whether these elements are present in this appeal, to establish a prima facie case, learned counsel relied on the following cases. See Uwazuruonye v Governor of Imo State (2012) LPELR-20604 (SC) 34; Rinco Construction Co. Ltd v Veepee Industries Ltd (2005) LPELR-2949 (SC) 14; Yusuf v Akindipe (2000) LPELR-3532 (SC) 15.
He further submitted that the first respondent prima facie, disclosed a reasonable cause of action, and therefore urged this Court to so hold.
Arguing its sole issue, learned Counsel for the third respondent submitted that while the trial Court agreed with the appellant that there was no reasonable cause of action in the first respondent’s pleadings, the lower Court was right in its findings having considered the first respondent’s pleadings with a razor-sharp comb and held same to have raised triable issues.
He pointed out that the appellant’s contention that the first respondent did not specifically appeal against the holding of the trial Court could not be sustained as the trial Court’s holdings had inevitably collapsed based on the holding of the lower Court that triable issues were actually raised by the first respondent. He urged this Court to uphold the decision of the lower Court and dismiss the appeal.
APPELLANT’S REPLY
In reply to the respondents’ submissions, the learned senior counsel for the appellant submitted that the first respondent’s submissions on the amount of purchase price is a mere play on words, adding that if N190 million was payable on the land, then N190 million was the purchase price.
The learned SAN further submitted that a failure to pay in full the purchase price for land entitles the vendor to rescind the agreement. See Manya v Idris [2001] 8 NWLR (pt. 716) 627, 637; Nlewedim v Uduma [1995] 6 NWLR (pt. 402) 382; Odusoga v Ricketts [1997] 7 NWLR (pt. 511) 1.
He pointed out that since that the lower Court struck out issue two (2) of the first respondent on the ground that it was not covered by the Grounds of Appeal, that aspect of the learned trial judge’s findings had been left unchallenged, and as such, that aspect of the judgment stands.
On the issue of requirement of leave of Court to raise a fresh issue, the learned SAN submitted that the leave of Court is indeed required adding that the arguments being made are made subject to the leave of this Honourable Court, He further stated that the question of lack of Governor’s consent raises a substantial issue of law, which requires no further evidence.
On the issue of the lack of Governor’s consent, learned SAN submitted that the underlying public policy of the Land Use Act is that the grant of the Governor’s consent is prerequisite to the validity of any transaction which purports to alienate land in urban areas, adding that both parties have a collective duty to seek for and obtain same, and the target of the law is the transaction and not the parties. He argued that the respondents’ contentions are untenable in the present circumstances as this is the type of contract that the doctrine of ex turpi causa non oritor actio applies.
Learned SAN drew the attention of this Court to several decisions of this Court prescribing for the consent of the Governor “first had and obtained”, to wit, Savannah Bank v Ajilo (supra); Thirwell v Oyewummi [1996] 4 NWLR (pt. 144) 344, 401; Awojugbagbe Light Industries v Chinukwe [1995] 4 NWLR (pt.390) 379; Union Bank of Nigeria Plc v Ayodare and Sons Ltd [2007] 13 NWLR (pt. 1052) 567; Calabar Central Cooperative and Credit Society Ltd v Ekpo [2008] 6 NWLR (pt. 1083) 362.
RESOLUTION OF THE ISSUES
My Lords, it is only meet and proper that I start the resolution of issues with an excursion into the meaning of reasonable cause of action. ‘Reasonable cause of action’ has been defined in the English case of Drummond-Jackson v British Medical Association and Ors (1970) 1 W.L.R 688, 696, where Lord Pearson stated that:
…No exact paraphrase can be given, but I think ‘reasonable cause of action’ means a cause of action with some chance of success, when as required by paragraph (2) of the rule only the allegations in the pleadings are considered. If when these allegations are examined, it is found that the alleged cause of action is certain to fail, the Statement of Claim should be struck out.”
This definition was approved by this Court in the cases of Chief (Dr) Irene Thomas and Ors v The Most Reverend Timothy Omotayo Olufosoye [1986] LPELR-3237 [SC]; Ibrahim v Osim [1988] 3 NWLR (pt. 82) 257, 267.
In Dantata v Mohammed [2000] 7 NWLR (pt. 664) 176, 197, reasonable cause of action was defined as “a cause of action, which when only the allegations in the statement of claim are considered has some chance of success.”
It needs to be said here that the proposition that a plaintiff has no reasonable cause of action can only be made upon an examination of the facts pleaded in the Statement of Claim. The Court must, therefore, orbit around the canvass in the Statement of Claim in the assessment of whether or not the plaintiff has a reasonable cause of action, CIL Risk and Asset Management Ltd v Ekiti State Govt and Ors (2020) LPELR – 49565 (SC); Chevron Nigeria Ltd v Lonestar Drilling Nigeria Ltd [2007] 16 NWLR (pt. 1059) 168, 193; Rinco Construction Co, v Veepee Ind. Ltd [2005] 9 NWLR (pt. 929) 85, 96.
The question that follows then is, looking at the facts pleaded by the first respondent in the Statement of Claim, can it be said that the case discloses no reasonable cause of action? I have perused the averments made by the first respondent in the Statement of Claim, particularly, paragraphs 8, 9, 10, 11, 12 and 17 thereof. These referred to and relied on several documents containing correspondence between the first respondent and the appellant on the subject of bidding for the purchase of the parcel of land in dispute measuring approximately 16.559 acres parcel of land.
In my humble view, therefore, it is evident that the appellant put up the landed property in issue for sale without indicating a purchase price. Furthermore, that first respondent bided N150 Million for the purchase and N40 million for commission and sundry/incidental expenses. It is also clear that the appellant accepted the bid as made by the first respondent.
The letters of offer and acceptance were pleaded. Furthermore, the first respondent upon receipt of a letter of request for confirmation of payment, wrote a letter of payment proposal comprising (a) immediate payment of N100m, (b) N50m payable at a later date and (c) N40m for exigencies payable at a later date. By doing this, first respondent was seeking an extension of time to make payments.
From Paragraphs 13, 14 and 21 of the Statement of Claim, it is also clear that the first respondent failed to pay the said commission and sundry expenses of N40 Million Naira within the time as extended by the appellant as they made the same subject to the clearance of squatters on the land and improvement in their finances.
As at that date, the appellant allegedly repudiated the transaction for non-payment of the N40 million, the first respondent averred that they instructed the appellant to be credited with the N40 million. It seems to me that on those facts pleaded, the first respondent had shown that, its contract with the appellant had been unlawfully breached.
Having considered the contents of the Statement of Claim, the next hurdle is whether the cause of action had some chance of success, notwithstanding that it may be weak or not likely to succeed? By the above averments in the Statement of Claim, it is crystal clear that the action discloses a reasonable cause of action. The averments, among others, are but the assertions to which the appellant was yet to respond to and which they did not allow the first respondent to prove by way of evidence before the trial Court when they brought their application which was granted by the trial Court.
It is also my observation that there appears to be a disparity in the parties’ understanding of the exact amount of purchase price under the contract of sale. This alone is contentious enough to warrant learned the trial Judge to have called evidence on both sides at a full substantive trial.
When parties enter into a contract, they are bound by the terms set out therein. It is not the business of the Court to re-write the contract for the parties. Thus, whatsoever sum was agreed by the parties as their consideration shall stand. It is therefore, not within the province of the Court to query same, as such would amount to dictating the terms of the contract of the parties. However, it is crucial to know the consideration agreed (if any) by the parties and whether or not same was paid, as consideration is an essential feature of a valid contract and failure of consideration is a ground for repudiation of contract. See Odusoga v Ricketts [1997] 7 NWLR (pt. 511) 1: Anwasi v Chabasaya [2000] 6 NWLR (pt. 661) 408, 417; Nidocco Ltd v Gbajabiamila [2013] 14 NWLR (pt. 1374) 350, 382.
For a party to be able to enforce a contract, he must place the express or implied terms of the contract before the Court, otherwise, it would be impossible for the Court to rationally adjudicate on the claim. The first respondent, in the instant case, did not plead the particulars necessary for the Court to properly know what the terms of the contract were.
The lower Court found as follows:
“It is therefore clear from the facts stated above, deduced from the averments in the appellant’s claim that there is a factual dispute between the appellant and the first respondent, as to whether or not the full purchase price for the sale of land had been paid. A triable issue, therefore, has been disclosed by the Statement of Claim which can only be resolved through a full trial. Furthermore, the documents clearly pleaded by the appellant were not before the Court, so there is no way the learned trial Judge could have known the terms of the contract and the obligations on both parties. I am therefore of the firm view that the learned trial Judge fell into error when he simply relied on the communication between the appellant and the first respondent, vide letters dated 17th December, 2010 and 14th January, 2011 to conclude that the appellant’s claim did not disclose any reasonable cause of action. The facts averred by the appellant disclosed facts which need be ventilated at a full trial. Accordingly, I hold again, that the appellant’s averments in the Statement of Claim have disclosed a triable issue(s). I therefore resolve the sole issue distilled for determination in this appeal, in favour of the appellant.
(See pages 185-186 of the Record of Appeal)
I am satisfied that the lower Court was right. The appellant, it would seem, was in too much of a hurry to have the first respondent’s case terminated at the trial Court. It must be said that, this is not the way the Court operates. A party ought not to be precluded from putting across its case in a full hearing. I, therefore, resolve issue one in favour of the first respondent.
With regard to issue two, I observe that, as it is well-known, a finding of fact not appealed against remains valid and subsisting. Such a decision cannot be disturbed by an appellate Court. The rationale for that principle is that no Court has jurisdiction to decide a point not subsumed as a ground of appeal. This must be so since an appellate Court is not a knight-errant looking for skirmishes all over the record of appeal. See Ukiri v Geco-Prakla (Nig.) Ltd [2010] 16 NWLR (pt. 1220) 544, 566; Adeyemi v Olakunri [1999] 14 NWLR (pt.638) 213-214; Nwabueze v Okoye [1988] 4 NWLR (pt. 91) 664.
The question that follows then is, whether the first respondent was required to appeal against a finding which has no bearing on the final judgment of the trial Court? In the instant case, the finding of the trial Court that the appellant, rightly, repudiated the contract was a statement made obiter.
The principle of law is that when a trial Court expresses an opinion on an issue not pleaded, such opinion is an obiter dictum. See Bamgboye v University of Ilorin [1999] 10 NWLR (pt. 662) 290; Haruna v Abuja Investment and Property Development Co. Ltd [2021] 15 NWLR (pt. 1798) at 148. The obiter does not have any influence on the reason for its judgment and as such, it is not appealable. Thus, the setting aside of the trial Court’s decision by the lower Court remains unaffected even if this appeal succeeds on this issue.
An appeal is a complaint against the ratio decidendi of the decision appealed against. Where a trial Court based its decision on a statement made obiter, that is not connected with the ratio of the decision, an appellate Court cannot rely on that obiter to vitiate the decision. See Haruna v Abuja Investment and Property Development Co. Ltd [2021] 15 NWLR (pt. 1798) 148.
Furthermore, it is pertinent at this stage to state that the appellate Courts do not always allow an appellant to raise and argue fresh issues or new points not raised in the lower Court. See Adegoke Motors v Adesanya [1989] 3 NWLR (pt. 109) 250. Ordinarily, an appellant who desires to raise a fresh issue or a new point on appeal is enjoined to seek and obtain leave to do so.
However, the issue of jurisdiction constitutes an exception to this general principle for it [such an issue of jurisdiction] could be raised for the first time before an appellate Court, with or without leave. See Obiakor and Anor v The State [2002] 10 NWLR (pt. 776) 612, 626 G; Gaji v. Paye [2003] 8 NWLR (pt. 823) 583; Oyakhire v The State [2006] 7 SCNJ 319, 327 – 328; [2006] 15 NWLR (pt.1001) 157; Okoro v. Nigerian Army Council [2000] 3 NWLR (pt. 647) 77, 90 – 91; Ajakaiye v. Military Governor, Bendel State [1993] 9 SCNJ 242 and Yusuf v. Cooperative Bank Ltd [1994] 7 NWLR (pt. 359) 676.
The reason is not far to seek. Due to its fundamental nature, it is exempted from the disabilities and restrictions which hamper other legal points from being canvassed or agitated for the first time on appeal. See Western Steel Works Ltd and Anor v. Iron Steel workers Ltd [1987] 2 NWLR (pt 179) 188. In effect, such an issue of jurisdiction could always be raised without leave. See Aderibigbe v. Abidoye [2009] 10 NWLR (pt. 1150) 592, 615 paragraphs C- G; Comptroller Nigeria Prisons Services Lagos v Adekanye [2002] 15 NWLR (pt. 790) 33; Obatoyinbo v Oshatoba [1996] 5 NWLR (pt. 450) 531; Management Enterprises Ltd v Otusanya [1987] 2 NWLR (pt 179) 188. In consequence, it is never too late in law to raise the issue of jurisdiction because of its fundamental and intrinsic nature and effect in judicial administration. See Magaji v Matari [2000] 8 NWLR (pt 670) 722, 735;Akegbejo v Ataga[1998] 1 NWLR (pt 534) 459, 465; State v Onagoruwa [1992] 2 SCNJ 1; A.G., Lagos v Dosumu [1989] 3 NWLR (pt 111) 552. Indeed, leave of the appellate Court is unnecessary since it can itself raise it suo motu as soon as sufficient facts or materials are available for it to do so. See Obikoya v. The Registrar of Companies [1975] 4 SC 31, 35; NNPC v Orhiowasele and Ors (2013) LPELR-24710(SC); Elabanjo v Dawodu [2006] 15 NWLR (pt. 1001) 76; Ndaejo v. Ogunnava [1977] 1 SC 11; Chacharos v. Ekimpex Ltd [1988] 1 NWLR (pt. 68) 88; Bakare v. A.G. Federation [1990] 5 NWLR (pt. 152) 516; Oyakhire v. State [2006] 15 NWLR (pt. 1001) 157; Oloriode v. Oyebi [1984] 1 SCNLR 390; Ezomo v. Oyakhire[1985] 1 NWLR (pt 2) 193; Akegbejo v. Ataga[1998] 1 NWLR (pt 534) 459, 468; 469; Bronik Motors v. Wema Bank Ltd [1983] 6 SC 158; Senate President v Nzeribe [2004] 41 WRN 60; Odiase v Agho (1972) 1 All NLR (pt 1) 170; Dickson Moses v The State [2006] 7 SCM 137, 169.
Be that as it may, by reason of what I had earlier observed about the injustice meted out on the first respondent, this Court as apex Court-ought to invoke the plenitude of its judicial power, in the interest of justice and thereby promote justice in all the circumstances of this case.
I think it is an appropriate occasion to invoke the provisions of Order 8 Rule 13 (3) of the Supreme Court Rules. It is, in my humble view, just to ensure the determination, on the merits, of the real controversy between the parties, I hereby find that this appeal lacks merit. I uphold the view of the lower Court that the decision of the trial Court be set aside and this matter be sent back to the High Court for a re-trial. The parties would have the opportunity to canvass all the issues, including the issue of the lack of the Governor’s consent.
The case is hereby remitted to the trial Court for re-assignment to another Judge of the said Court.
MUSA DATTIJO MUHAMMAD, J.S.C.: I read in advance the lead judgment of my learned brother CHIMA CENTUS NWEZE, JSC just delivered. I adopt the reasons and conclusion advanced in the lead judgment in sustaining the decision of the Court below as well as its consequential orders for a retrial of the matter that brought about this appeal by another Judge of the trial Court.
HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I have read the judgment just delivered by my learned brother CHIMA CENTUS NWEZE, JSC. I am completely in agreement with the reasoning and conclusion that the appeal lacks merit. The Appellant herein was the Defendant at the trial Court while the 1st Respondent herein was the Plaintiff. The 1st Respondent sought the following reliefs:
a) Declaration that the contract between the claimant and the 1st Defendant still subsists and binding.
b) Declaration that the unilateral repudiation and purported sale to a higher bidder is speculative and against the principle of fairness, equity, and justice, with consequent conferment of nullity on the purported sale.
c) An order directing the 1st and 3rd Defendants to conclude all processes leading to the execution of the deed of assignment in respect of all that landed property situate, lying and being part of Plot 1, block 1, Ibafo Obafemi-Owode in Volume 486 at the Lands Registry in the office at Abeokuta in favour of the Appellant.
d) An order of perpetual injunction restraining the Defendants by themselves, agents, servant and/or privies from alienating or dealing in the said 16.559 acres of land belonging to the claimant.
e) In the alternative, an order for general damages for the sum of N200,000,000.00 million payable to the Claimant.
f) Cost of this action.
The trial Court however upheld the preliminary objection of the Appellant that the claim was frivolous and disclosed no cause of action. From the averments in the pleadings of both parties, it is clear that the consideration had failed in respect of the agreement for sale and consequently the contract of sale automatically terminated.
I agree with Counsel for the 1st Respondent and the Court below that there are triable issues thrown up by the averments of the parties in their pleadings and it was premature and a gross miscarriage of justice for the trial Court to have upheld the preliminary objection to the effect that the pleadings did not show a reasonable cause of action. The justice of this case is that it should be tried so that all the issues of facts and law in controversy articulated by the parties be determined by the learned trial Judge. In the circumstances, this appeal which seeks to upturn the decision of the Court below is wholly without merit and should be dismissed.
Appeal dismissed. I abide by all the orders in the lead judgment.
ADAMU JAURO, J.S.C.: I read in draft the lead judgment of my learned brother, Chima Centus Nweze, JSC just delivered. I am in agreement with the reasoning and conclusion contained therein, to the effect that the appeal lacks merit and ought to be dismissed.
The facts of the case have been extensively set out in the lead judgment and I adopt same for the purpose of this judgment. The phrase “reasonable cause of action” means a cause of action with some chances of success when only the allegations in the Statement of Claim are considered. If when those allegations are examined, it is found that the cause of action is bound to fail, then the suit ought to be struck out. See BARBUS & CO. (NIG) LTD & ANOR v. OKAFOR-UDEJI (2018) LPELR-44501 (SC); RINCO CONSTRUCTION CO. LTD v. VEEPEE INDUSTRIES LTD & ANOR (2005) LPELR-2949 (SC); IBRAHIM v. OSIM (1988) LPELR-1403 (SC).
In determining whether or not a Statement of Claim discloses a reasonable cause of action, it is irrelevant to consider the weakness of the Plaintiff’s claims. What is important is to examine the averments in the pleadings and see if they raise some questions fit to be decided by a Judge. See BARBUS & CO. (NIG) LTD ANOR v. OKAFOR-UDEJI (supra); DADA & ORS v. OGUNSANYA & ANOR (1992) LPELR – 908 (SC). In view of this, upon perusing the 1st Respondent’s Statement of Claim, I find that same discloses a reasonable cause of action as there are triable issue as held by the Court below. The disagreement among the parties over whether the purchase price was N190 million or N150 million is material and can only be resolved after a full trial wherein evidence would be adduced by the parties.
In conclusion, I join my learned brother in dismissing the appeal as same is devoid of merit. The case is hereby remitted to the High Court of Ogun State for re-assignment to another Judge of that Court.
Appeal dismissed.
TIJJANI ABUBAKAR, J.S.C.: This appeal is against the judgment of the Court of Appeal Ibadan, delivered on the 18th day of June, 2015.
The brief facts grounding the appeal are that/ the Appellant had a large parcel of land which it offered for sale, the 1st Respondent in this appeal offered to buy the land for N190,000,000.00. The 1st Respondent paid the sum of N150,000,000.00 and failed to pay the balance, there were repeated demands and extension of time within which to pay the balance of N40,000,000.00, the 1st Respondent failed to pay, the Appellant therefore sold the land to a third party, the sale miffed the 1st Respondent who instituted an action against the Appellant at the trial Court.
The Defendant Bank brought an objection that the action filed by the 1st Respondent disclosed no reasonable cause of action. The 1st Respondent filed counter affidavit and written address, the trial Court held that there was no reasonable cause of action and sustained the objection.
The 1st Respondent appealed against the decision of the trial Court. The lower Court held that the action filed by the 1st Respondent disclosed reasonable cause of action and ordered that the suit be heard by the trial Court. The Bank became aggrieved and therefore brought this appeal.
I read the Judgment of the lower Court, and I am in agreement with the decision of the lower Court that the statement of claim before the trial Court disclosed triable issues, deserving of consideration by the trial Court. At page 185 of the records, the lower Court said:
“… there is a factual dispute between the Appellant and the Respondent, as to whether or not the full purchase price for the land had been paid or not. A triable issue has therefore been disclosed by the statement of claim which can only be resolved through full trial …”
The lower Court eventually set aside the decision of the trial Court and ordered that the suit be remitted to the Hon Chief Judge of Ogun State for a fresh hearing before another Judge other than Saula, J.
I am in full agreement with the reasoning and conclusion in the leading Judgment which my learned brother NWEZE, JSC granted me the privilege of reading before now. I agree, and abide by all consequential orders.
Appearances:
Seyi Sowemimo, SAN, with him, Emmanuel Onisona For Appellant(s)
A.A Ayodele, Esq. – for 1st Respondent
Victor O. Odjemu, with him, Nathaniel Egbet and Lawrenta Iboi – for 2nd Respondent
Chief Chinedu Moore – for 3rd Respondent For Respondent(s)
