FELIX GEORGE AND COMPANY LIMITED v. L. A. AFINOTAN & ORS (2014)

FELIX GEORGE AND COMPANY LIMITED v. L. A. AFINOTAN & ORS

(2014)LCN/7195(CA)

In The Court of Appeal of Nigeria

On Friday, the 16th day of May, 2014

CA/AK/37/2011

RATIO

CONTRACT: AWARDING GENERAL DAMAGES

Now, the law is that apart from damages naturally resulting from the breach of contract, no other form of general damages can be awarded.

Thus, where breach of contract is established, the court is allowed upon a judicious assessment of the prevailing circumstances to award general damages. See Reynolds Construction Co. Ltd. vs. Edomwonyi (supra); and Beta Glass Plc. vs. Epaco Holding Ltd. (supra) amongst others. Leaning on these authorities, it seems to me and I so hold that damages for loss of business earnings and the cost of permanent building structure as claimed in the instant appeal by the 1st and 2nd respondents ought to come under special damages which must be pleaded, particularized and proved before the court as opposed to general damages. The 1st and 2nd respondents incidentally never pleaded or sought special damages in their pleadings. Rather they wrongly sought for loss of business earnings and cost of permanent building/structure constructed on the leased property under general damages.Be that as it may the 1st and 2nd respondents are entitled to general damages which needs not be specifically pleaded nor sought for as a relief provided they were able to establish a breach of the lease agreement.

General damages are such that the law will presume to be the direct natural and probable results of the acts complained of which need not be strictly proved unlike special damages. See the cases of UTC (Nig.) Plc. vs. Philips (2012) 6 NWLR (Pt.1295) 136 @ 46; and Zenith Bank Plc. vs. Ekereuwem (2012) 4 NWLR (Pt.1209) 207 @ 219. Per CORDELIA IFEOMA JOMBO-OFO, J.C.A.

WHETHER A COUNTER-CLAIM CONSTITUTES A DISTINCT ACTION

It is trite law that a counter-claim constitutes a separate, independent and distinct action wherein the counter-claimant needs to prove his claims against the opposite party. It does not fail merely because the main claim by the opposite party has succeeded. See Balogun vs. Yusuf (2011) All FWLR (Pt.594) 60 at 70 paras. D-E. Per CORDELIA IFEOMA JOMBO-OFO, J.C.A.

JUSTICES

SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria

Between

FELIX GEORGE AND COMPANY LIMITED – Appellant(s)

AND

1. L. A. AFINOTAN

2. COMET LUMINAIRE NIGERIA LIMITED

3. ONDO STATE GOVERNMENT

4. COMMISSIONER FOR JUSTICE AND ATTORNEY GENERAL OF ONDO STATE

5. COMMISSIONER FOR AGRICULTURE ONDO STATE – Respondent(s)

CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ondo State, Akure delivered by his Lordship Honourable Justice O.O. Akeredolu, on the 6th day of August, 2009 in Suit No. AK/42/2007.

By a writ of summons dated and filed the 15th day of February, 2007 and a statement of claim dated and filed 31st May, 2007 the plaintiffs (herein 1st and 2nd Respondents) instituted an action against the defendants constituting the appellant and the 3rd to the 5th respondents herein seeking a declaration, injunctive orders and damages.

While the appellant being the 4th defendant at the lower court filed his defence and counter-claim, the 3rd -5th respondents as the 1st – 3rd defendants filed their joint statement of defence as shown at pages 13-17 of the record. The 1st – 2nd respondents (plaintiffs at the lower court) filed a “Reply to 4th Defendant’s Statement of Defence and Plaintiffs’ Defence to Counter Claim”. See pages 18-19 of the record. The reply to the statement of defence of the 1st -3rd defendants is contained on pages 72-73 of the record.

Pleadings were filed and exchanged after which the case proceeded to trial on 12th December, 2007. The plaintiffs called two witnesses to support their claim. The 1st – 3rd defendants jointly called one witness while the 4th defendant/counter-claimant called one witness in their respective cases.

At the close of hearing, written addresses were filed and exchanged. The learned trial Judge in a considered judgment delivered 6th August, 2009 granted three (3) out of the five (5) reliefs sought by the plaintiffs and dismissed the 4th defendant’s counter-claim in its entirety. It is against this decision that the 4th defendant/counter-claimant (herein the appellant) is now before this court on appeal.

STATEMENT OF FACTS

The case is centered around lease agreements executed between the lessor (appellant herein) of the demised property comprising a Saw-mill structure lying and situate along Alade, Akure Road, Alade Idanre to the lessee (2nd respondent herein) together with its operating licence for a fixed period of term and duration. The 1st respondent is the Chairman/Managing Director of the 2nd respondent.

Two different lease agreements were executed between the lessor and lessee over the property. The first dated the 17th day of April, 1991 which was tendered before the trial court as Exhibit A1 was for a renewable term of five (5) years, while the 2nd lease dated the 3rd day of April, 1995 and equally tendered in evidence at the trial court as Exhibit AZ. See pages 4 and 7 of the records. Before the expiration of the said 5 years period, the parties entered into another lease agreement in respect of the same demised property for another period of ten (10) years commencing from the expiry date of the first lease agreement (Exhibit A1). Exhibit A2 was thus executed.

During the subsistence of the leasehold cumulative period of fifteen years allowed as in Exhibits A1 and A2, the 2nd Respondent installed a brand new CD6 machine along with other machines for Sawmill operation and also built a permanent office factory on the demised premises. In 1994, there was a fire outbreak at the demised premised which led to the loss of office buildings on the demised premises.

By a letter dated the 25th day of January, 1995 the 2nd respondent requested for ten (10) years lease and permission to build permanent structures of about ten (10) offices and a mini-factory that would house a multiple Rip-Saw machinery as stated in Exhibit A3 which request was granted.

Also, the 2nd respondent was operating its Saw-mill business in the demised premises with the Operation License and Hammer that was issued by the 5th respondent to the 4th respondent which according to the 2nd respondent was handed over to it by a Director of the Appellant, Mrs. Akinseye. The 2nd respondent claimed that the Operation License and the Hammer were appurtenances attached to Exhibits A1 and A2 (lease agreements) respectively. The 2nd respondent using the said Sawmill Operating License, operated the sawmill business for fifteen (15) years and annually renewed the license which is evidenced by Exhibits “A16”, “A16a” & “A16b, respectively.

Upon the determination of the lease agreement as contained in Exhibit A2, the appellant’s counsel by a letter dated 26th April, 2006 issued a quit notice to the 1st respondent as the Chairman/Chief Executive Officer of the 2nd respondent. The 2nd, respondent replied the appellant’s counsel which reply was admitted before the trial court as Exhibit A11 as contained on page 100 of the records. The 2nd respondent wrote another letter dated 7th of June, 2006 pleading with the appellant for renewal of tenancy or an outright sale of the demised premises. The letter was marked as Exhibit 12. The request was turned down by the appellant who wrote a letter through his counsel to the 1st respondent dated 6th July, 2006 which was marked as Exhibit A4 as contained on page 85 of the records.

As the 2nd respondent would not yield up possession of the demised premises after the expiration of the tenancy in April, 2006, the appellant wrote a letter dated 24th November, 2006 to the 5th respondent for cancellation of the Saw-mill License of the appellant which was being renewed and used by the 2nd respondent in running the Sawmill business. The said letter was admitted at the trial court as Exhibit A13. The 5th respondent afterwards wrote a letter of cancellation of the said Sawmill License to the appellant dated 31st January, 2007 and marked Exhibit A14 as contained on page 108 of the records.

Consequent upon the cancellation of the Operation License of the appellant by the 5th respondent the said 5th respondent issued a STOP WORK NOTICE to the 2nd respondent as contained in Exhibit A15 on page 109 of the records. The license cancellation by the 5th respondent coupled with the refusal of the appellant to renew the tenancy agreement between it and the 2nd respondent and or issue proper notice to quit led to the institution of the suit at the trial court by the plaintiffs (1st & 2nd respondents) in this case.

The 3rd – 5th respondent at the trial court claimed that they were unaware of the lease and other agreement between the appellant on the one hand and the 1st and 2nd respondents on the other not until they were requested by the appellant to cancel the Saw-mill’s Operation Licence in 2006. The appellant’s case was a denial of the 1st and 2nd respondents’ claim and the setting up of a counter claim against the latter’s claim.

The learned trial court in a considered judgment delivered on the 6th day of August, 2009 in favour of the 1st and 2nd respondents, on the other part dismissed the appellant’s counter-claim in its entirety. Not being satisfied with the decision of the trial court, the appellant is on appeal before this court vide a Notice of Appeal dated the 9th of September, 2009, filed on the 10th of September, 2009 and containing eight grounds of appeal.

The appellant in compliance with the rules of this court filed the Appellant’s Brief of Argument, settled by CHIEF O.J. JEJELOLA (J.P) dated 21st July, 2011, filed 1st August, 2011 but deemed properly filed on 27th March, 2012. The 1st and 2nd Respondents’ Brief of Argument dated 24th September, 2012, filed on 25th September, 2012 and deemed properly filed on 27th November, 2012 was settled by OLABODE SHABA, ESQ.

At the hearing of the appeal on 26th February, 2014, learned counsel for the appellant G.O. OMOEDU, ESQ. upon his adoption and reliance on their brief of argument as their argument in this appeal, urged us to allow this appeal, set aside the judgment of the lower court and give judgment on the appellant’s counter-claim. On the part of the 1st and 2nd respondents, OLABODE SHABA, ESQ having adopted and relied on their brief of argument urged on us to dismiss the appeal in its entirety and to uphold the judgment of the lower court.

The appellant’s counsel distilled six (6) issues for the determination of the appeal to wit:

(i) Whether the 2nd Respondent was still entitled to be given a year’s notice to quit by the Appellant after the expiration of the fixed period of ten (10) years tenancy as contained in Exhibits A1 & A2 respectively.

(ii) Whether it was appropriate to treat an operating Sawmill license which was never tendered before the trial judge as appurtenances to the demised premises in the instant case.

(iii) Whether the 3rd – 5th Respondents required the consent of the 1st and 2nd Respondents before the cancellation of the Appellant’s Sawmill license.

(iv) Whether the learned trial judge was right in awarding a sum of N1,000,000.00 (One Million Naira Only) as damages against the Appellant, a claim that was not before the court.

(v) Whether the entire contract between the Appellant and the 2nd Respondent in this case as contained in Exhibit A1 and A2 is not illegal.

(vi) Whether assuming that the contract between the Appellant and 2nd Respondent is legal (which is not conceded), the Appellant’s counterclaim in this suit was not proved before the lower court.

On the part of the 1st and the 2nd respondents, learned counsel on their behalf formulated five issues for determination of this court. The issues read as follows:

(i) Whether having regard to the pleadings and evidence adduced by the parties at the trial of this case, the trial judge was not right in holding that the notice to quit given by the appellant is inadequate.

(ii) Whether or not it was mandatory to tender the operating Saw-mill license before the trial court as an appurtenances to the demised premises and whether the consent of the 1st & 2nd respondents is necessary before the said Saw-mill operating license could be revoked by the 3rd – 5th Respondents.

(iii) whether the awarding of the sum of N1,000,000.00 (One Million Naira only) as damages against the Appellant was not a claim before the trial court.

(iv) Whether the Appellant and the 1st & 2nd Respondents as contained in Exhibits A1 and A2 in this suit was illegal.

(v) Whether the Appellant’s counter-claim in this suit was proved as required by the law in lower court.

Considering the similarities of the issues raised by learned counsel on both sides, to my mind the issues as formulated by the learned counsel for the appellant would sufficiently determine the appeal. They are therefore adopted as the issues for determination of the appeal.

ARGUMENTS

ISSUE ONE:

Whether the 2nd Respondent was still entitled to be given a year’s notice to quit by the appellant after the expiration of the fixed period of the ten (10) years tenancy as contained in Exhibits A1 and A2 respectively:

It is the contention of the appellant’s counsel that the lease agreement between it and the 2nd respondent as contained in Exhibit A2 was for a fixed period of ten (10) years notwithstanding that it incorporated the terms and conditions contained in Exhibit A1. Counsel submits that by effluxion or expiration of time that the leasehold interest of the 2nd respondent as contained in Exhibit A2 commenced from May, 1995 and expired in April, 2006. Counsel argued that there would be no need for the tenant to be served with a notice to quit once the tenancy has been determined in accordance with the term certain. Counsel referred the court to the case of Akinkugbe vs. Ewulum Holdings Ltd. (2008) All FWLR pt, 423 p. 1269 @ 1287 para. H – A. Counsel argues that the 2nd respondent is a contractual tenant to the appellant and a tenant at sufferance. He referred the court to the case of African Petroleum Ltd. Vs. J. K. Owodunni (2004) All FWLR P.77 @ 794 paras. A-B.

Counsel submits that the 2nd respondent is not entitled to a year’s notice to quit in accordance with clause 2 of Exhibit A2 because he is not a statutory tenant. He further referred to the case of Pan Asian African Co. Ltd Vs. National Insurance corp. (Nig) Ltd. (1992) 9 SC. 1 @ 13.

Counsel submits that the position of the 2nd respondent is that of a tenancy at sufferance who was only entitled to a week’s notice to quit. He referred the court to the case of Alhaji Audu Shugaba vs. Alhaji Tijjani Shettima Ta’abu (2000) FWLR (Pt.17) 70 @ p.77 paras, F.

It was also the counsel’s contention that Exhibit A9 was not a notice to quit but a reminder letter to the 1st respondent on behalf of the 2nd respondent from the appellant’s counsel with respect to the determination of the term of the lease in Exhibit A2, as there was an expressed and implied covenant in the said Exhibit A2 on the part of the 2nd respondent to yield up possession of the demised premises by the end of April, 2006.

It was the counsel’s further argument that Exhibit A11 was properly issued to the 2nd respondent. He relied on the case of Dantosho Vs. Mohammed (2003) All FWLR (Pt.150) p.1717 @ 1739 paras C – D.

On the part of the respondents, learned counsel for the 1st and 2nd respondents submits that the 2nd respondent’s leasehold interest in the demised premises was for a cumulative period of fifteen (15) years as contained in Exhibits A1 & A2. That the lease period as per both Exhibits A1 and A2 commenced from April, 1991 and to expire in April, 2006 after which the appellant refused to grant the 2nd respondent a further renewal as requested.

The learned counsel argued that the appellant by its solicitor’s letter dated the 26/4/2006 which is marked as Exhibit A9, gave the 1st and 2nd respondents four (4) days final notice to quit and yield up possession of the demised premises, instead of the mandatory one (1) year notice stipulated by Exhibit A2. Learned counsel argued that Exhibit A2 was still subsisting as at 26th April, 2006 when Exhibit A9 (quit notice) was issued on the 1st and 2nd respondents. Learned counsel submits that the proper notice to quit was supposed to be one year. Counsel relied on the case of Otusanya Vs. Obioha (1979) 4 – 6 CCHC J 1 where it was held thus per: Oshodi J (as he then was)

“Where the parties have made an express agreement relating to the length of notice to quit … the notice must be served in accordance with the terms of the agreement. I therefore hold that the tenant is entitled to….as failure to do so amount to a breach of (tenancy) agreement and the tenancy has not come to an end”.

Learned counsel submits further by saying, assuming without conceding that the 1st and 2nd respondents were no longer contractual tenants upon the determination of their leasehold interests by effluxion of time as contended by the appellant owing to the non-renewal of Exhibit A2 for further terms, that the respondents would still have qualified as tenant at sufferance or at will. The learned Counsel cited the case of Briggs Vs. Chief Land officer, Rivers State & 2 Ors (2005) All FWLR (pt.268) 1628 @ pp.1658 paras A – E where it was held that tenancy at sufferance exists when:

“a person who enters on/and by a lawful and after his title has ended, continues in possession without statutory authority and without obtaining the consent of the person then entitled, is said to be a tenant at sufferance, as distinct from a tenant at will who is in possession with the Landlord’s consent. This is so whatever the nature of the tenant’s original estate whether he was a tenant for years or the sub”

Learned counsel for the 1st and 2nd respondents further referred the Honourable Court to the following cases:

– Ude v. Nwara (1993) 3 NWLR (Pt.278) 638 @ 649

– Odutola & Anor Vs. Papersack Nig. Ltd (2008) vol. 148 LRCN 1341 paras. A – K & Pg.1368 paras. Z – E.

– African Petroleum Ltd vs. Owodunni (2004) All FWLR (Pt.208) 771 @ 793 paras G – E.

– Alhaji Audu Shugaba Vs. Alh. Tijiani Ta’abu Supra.

ISSUE TWO

Whether it was appropriate to treat an operating Saw-mill license which was never tendered before the trial judge as an appurtenance to the demised premises in the instant case.

Appellant’s counsel submits that it was inappropriate for the learned trial court to have come to the conclusion in its judgment that an operating Sawmill license which was never tendered before it throughout the trial to be regarded as an appurtenance to the demised premises. The learned counsel relied on the definition of appurtenance as contained in the Black’s Law Dictionary 5th Edition, page 94 to submit that the words operating license of a Saw-mill cannot be brought under the word appurtenances in this case. Learned counsel contends that the use of legislative interpretation is “ejusdem generis or noscitor a socis” meaning that words are to be interpreted within the con in which they were being used. See the cases of: Chief (Mrs.) Olufunke Victoria Ehuiwa vs. Ondo State INEC & 3 Ors (2007) All FWLR (Pt.351) p.1415 @ 1430 paras G – H & Chief Joseph Adolo Okotie-Eboh v. Chief James Ebiowo Manager & 2 Ors (2005) 6 WRN p.26 @ p.58 lines 10 – 20.

Counsel contends that the operating license was not tendered before the trial court by the respondents so as to lay credence to the assertions of the said transfer. He refers the court to the case of Udeagu vs. Benue Cement Co. PLC (2006) 2 NWLR (Pt.965) @ 600 particularly @ 616 paras. F – G.

Appellant’s counsel urged the court to hold that the said operating license cannot be made an appurtenance to the lease agreement.

Counsel further submitted that assuming but not conceding that the said operating Saw-mill license is an appurtenance to the said lease, the transfer of the said operating license between the appellant and the 2nd respondent without the knowledge and fiat of the 3rd and 4th respondents is illegal. Counsel refers to the case of Alao vs. A. C. B. Ltd. (1998) 3 NWLR (pt.542) P.339 @ 355 paras. E – G.

With regard to issue two, the learned counsel for the 1st and 2nd respondents in reaction submits that the learned trial Judge was right in holding that the operating sawmill license was an appurtenances to the lease agreement the appellant had with the 2nd respondent. Learned counsel submitted that in clause 1 of Exhibit A1 after the recital, the property leased by the appellant to the 2nd respondent included, “…the factory site together with the appurtenances thereon…” Counsel conceded that going by the definition of appurtenances by the Lexicon Website Dictionary Vol. 1, 1980 Ed. at pg. 51 which is in tandem with its definition as given in the Black’s Law Dictionary (supra) the words “operating licence” of a sawmill can conveniently be brought under the word “appurtenances” in this case.

The learned counsel for the 1st and 2nd respondents further argued that the appellant’s counsel was grossly misconceived when he argued that notwithstanding the contents of Exhibits A4 and A5, which was never denied by the appellant, that the 2nd respondent was still obliged to tender the said operating licence before the trial court. He referred to the recently decided Supreme Court’s authority of Ega & Ors. vs. Olopade & Anor. (2011) 6 SCM 13 at 35 paras. F – I where it held as follows:

“The law is well settled that when documentary evidence supports oral evidence, oral evidence led becomes more credible. This is so because documentary evidence serves as a hanger from which to assess oral testimony.” per Rhodes-Vivour, JSC.

Counsel submits that the law governing the issue of sawmill operating license was then the Forestry Law, Cap 40, Laws of Ondo State, 1978 by virtue of Section 44(1)-(3) of the Forestry Law, supra and the subsidiary Sawmills (Licensing) (fees) Notice. That there is no provision for revocation of operating license once issued in these laws/regulations, instead it prescribes fees payable for the issuance or and renewal of sawmill license.

ISSUE THREE

Whether the 3rd-5th Respondents required the consent of the 1st and 2nd Respondents before the cancellation of the Appellant’s Saw-mill license.

Appellant’s Counsel submits that 3rd – 5th respondents did not require the consent of 1st and 2nd respondent before cancellation of the appellant’s Saw-mill license. Counsel refers the court to Section 44 of the Forestry Law of Ondo State Cap. 40, Laws of Ondo State of Nigeria, 1978. Counsel contends that the purported or illegal transfer of the said Saw-mill operating license between the 2nd respondent and the appellant was not with the consent of the 5th respondent. That the 1st and 2nd respondents were not made parties to the said Saw-mill operating license and as such, cannot benefit from it under the law of privity of contract. Counsel submits that the 3rd to 5th respondents were not parties to both Exhibits A1 and A2 which were the lease agreements of the Saw-mill industry executed between the appellant and the 2nd respondent only. That the idea of seeking the consent of the 1st and 2nd respondents by the 3rd to 5th respondents before the cancellation of the said Saw-mill operating license therefore, seems ludicrous as going by that negates the cardinal principle of privity of contract. Counsel referred this Honourable Court to the case of Union Bank of Nigeria Ltd. & 1 Or. vs. Penny-Mart Ltd. (1992) 5 NWLR (Pt.240) P. 228 @ P. 241 paras. C – D., Zakheem Construction (Nig.) Ltd. vs. Mr. Emmanuel Nneji (2003) FWLR (Pt.143) p.298 @ P.335, paras. B-C., Samson Olasupo Odejide vs. The Registered Trustees of Gospel Light Ministry (2004) 38 WRN p.61 @ p.77 lines 10 – 15., and African Development Insurance company vs. Nigeria LNG Ltd. (2000) FWLR (pt.3) p. 439 para H.

On the part of the 1st and 2nd respondents, counsel on their behalf while arguing issue two above also covered issue three.

However, the learned counsel did contend that Exhibit A5 substantially supports the fact that transfer of the license is not illegal. Counsel stated that the 5th respondent did not cancel the valid appellant’s license renewed in 2006 while in possession of the respondent but that, instead, allegedly cancelled a non existing one based on the appellant’s request through Exhibit A14.

Counsel submits that the trial court was right in holding that based on the evidence before it, that the 4th defendant (appellant) cannot unilaterally request the 1st to 3rd defendants (3rd to 5th respondents) to revoke or cancel the 4th Appellant’s Saw-mill operating license without the consent of the 1st and 2nd respondents who are lessors as per Exhibits A1 and A2. Learned counsel urged this Honourable Court to so hold and referred the court to the case of Teribe vs. Adeyemo (2010) 7 SCM 165 @ pg,… paras…. where it was held that:

“A person cannot benefit from his own wrong. Courts have a duty to prevent injustice in any given circumstances.”

Counsel finally urged on the Court to dismiss issue 3 as formulated by the appellant’s learned counsel in their brief.

ISSUE FOUR

Whether the Learned trial judge was right in awarding N1,000,000.00 (One Million Naira Only) as damages against the appellant, a claim that was not before the court.

Learned counsel for the appellant submits that there was no basis for the award of the sum of N1,000,000.00 (One Million Naira Only) as damages to the respondents and against the appellant in this case. The learned counsel submits that damages for loss of business earning is a special damages which must be specifically pleaded and particularized and proved before the court. Learned counsel contended that, what was pleaded by the 2nd respondent as contained on page 2 paragraph 3, pages 4 to 8 and pages 128 para. 4 of the records are the sum of N30,000,000.00 (Thirty Million Naira Only) general damages for the business loss occasioned by disturbance of business operations and, N20.00 (Twenty Naira), general damages for breach of contract of lease. Submits that the issue of loss of business earning comes within the umbrella of special damages. He relies on the authority of Reynolds Construction Co. Ltd Vs. Edomwonyi (2005) All FWLR (Pt.147) p.1166 @ 1167 paras B – C) where the court held as follows:

“Any claim for the loss of earnings is a claim in special damages in the sense that full particulars must be given by the plaintiff in his pleadings of his rate of earnings and such other facts as may be necessary for the court to calculate as best and as adequately as it can”.

Learned Counsel submits that damages for loss of business earning cannot be entertained or subsumed under general damages as was done by the learned trial judge. Counsel argued further that the award of N1,000,000.00 (One Million Naira Only) in favour of the 1st and 2nd respondents was not a relief that was before the court. Counsel states that a court cannot grant a relief not claimed by a party. He referred this Honourable Court to the following cases:

1. NDIC vs. Savannah Bank Plc. (2002) 51 WRN p.19 @ p.70 paras. 10 – 30.

2. Emmanuel Atungwu & 1 Or. vs. Chief Ada Ochekwu (2005) 9 WRN p.125 @ p.146 paras 20 – 25.

3. Joseph Ayantuyi & 8 Ors. vs. Governor of Ondo State & 2 Ors. (2005) 14 WRN p.67 @ p.98 paras 20 – 25.

4. Nigerian Housing Deo society Ltd. vs. Alhaji Abdul-Rasaq & Ors. (1977) 2 SC. pp.55 – 87.

Issue 3 as formulated by the respondents’ counsel covers issue 4 of the issues formulated by the appellant in their brief.

Learned counsel for the 1st and 2nd respondents submits in reaction thereto that the learned trial judge was right to have awarded the sum of N1,000,000.00 (one Million Naira only) as damages against the appellant considering the facts before him. Counsel’s contention is that what the plaintiffs (1st & 2nd respondents) pleaded and gave evidence was not for special damages but for general damages which the trial court extensively considered at pages 154-159 of the record.

Counsel relied on the case of Beta Glass Plc. vs. Epaco Holding Ltd. (2011) All FWLR (Pt.579) @ 1195 paras. E – G where the Benin Division of this Court held as follows:

“The Supreme Court has confirmed the power of the trial court to award damages upon a judicious estimation from the prevailing circumstances once a breach of contract has been established. Therefore, the term “general” and “special damages, are normally inappropriate in the categorization of damages in cases where breach of contract has been established.

Therefore apart from damages naturally resulting from the breach, no other form of general damages can be awarded. To put it in different words, the trial court can only award damages arising naturally from a breach”.

1st and 2nd respondents submit that the argument of the learned counsel for the appellant is grossly misconceived and an afterthought in view of the findings of the trial court on page 159 on the unchallenged testimony of the plaintiffs (herein 1st and 2nd respondents). Counsel refers to the case of Cameroon Airlines vs. Otutuizu (2011) All FWLR (Pt.570) 1260 @ 1282 Paras E – F. where the Supreme Court held that:

“Once breach of contract is established, damages follows. General damages are losses that flow naturally from the adversary and it is generally presumed by law as it need not be pleaded or proved. It is awarded by the trial court to assuage a loss caused by the act of that adversary”. (Underlining mine).

See also Vodakanal Project (Nig.) Ltd. vs. Oladele (2004) All FWLR (Pt.239) 883 @ 903 paras. C – D.

Learned counsel to the respondents finally submits that the trial judge was right when he held that: the 1st and 2nd Respondent are entitled to damages. He urged on this court to discountenance issue No. 4 formulated by the appellant and dismiss same.

ISSUE FIVE

Whether the entire contract between the Appellant and the 2nd Respondent in this case as contained in Exhibits A1 and A2 is not illegal.

The learned counsel for the appellant submits that the contract as contained in Exhibits A1 and A2 is illegal in view of the fact that Exhibit A17 which is a Certificate of Statutory Right of Occupancy, issued and dated the 25th day of March, 1992 requires the consent of the Ondo State Governor under Section 22 of the Land Use Act, 1978, before the deed of lease agreement contained in Exhibit A2 can be valid in law. Counsel argued that when Exhibit A1 was executed, Exhibit A17 was not yet in vogue as it was not obtained until the 22nd day of March, 1992 and it therefore became imperative for the 2nd respondent to seek the Governor’s consent to Exhibit A1 with effect from the date the said Exhibit A17 was issued. Counsel further argued that Exhibit A1 had been rendered invalid since 22nd day of March, 1992 for reason that it never got the Governor’s consent as required by law up till April, 1996 when it expired. Counsel argued that lack of Governor’s consent also invalidates the lease agreement contained in Exhibit A2 and thus illegal. Counsel relied on Section 22 of the Land Use Act, Cap. 15, Laws of the Federation of Nigeria, 2004 in submitting that the maxim exturpi causa non oritur actio applies to this case.

Learned counsel further referred to the cases of:

– Hajiya Ogbole vs. Mrs. Regina Lawani (2003) FWLR p.187, p.844 @ P. 858 Paras. C – D.

– Alhaji Safiriyu Yinusa Shobajo v. Oluremi Ikotun & 1 Or. (2003) FWLR (Pt.187) p.1751 @ p.1767 paras A – B.

In his further contention, counsel stated that illegality must be raised in the pleading or that it must appear ex-facie on the pleadings before the court can utilize it. Submits that the learned trial judge ought to have raised the issue of illegality of the lease agreement contained in both Exhibits A1 and A2 suo motu, so that it will not be seen to be lending its aid to the perpetration of any illegality and will therefore, not permit the enforcement of a contract founded on illegality. Counsel relies on the cases of:

– Thirwell vs. Oyewumi & 2 ors. (1990) 4 NWLR (Pt.140) p.384.

– Simon Bodi vs. Ishaya D. Agyo (2003) FWLR (pt.156) p.15 @ p.881 paras D – E.

– Alhaji Taofik Alao vs. ACB Ltd. (1998) 2 SCNJ p.17 @ p.28 paras. 5 – 10,

– Pan Bisbilder (Nig.) Ltd. vs. First Bank of Nigeria Ltd. (2000) 1 SCNJ p.16 @ p.24 paras. 30 – 35.

The learned respondents’ counsel in reaction to this issue submits that the learned trial judge was right in granting the reliefs claimed by the 1st and 2nd respondents based on Exhibits A1 and A2. Counsel argued that it was unconscionable and reprehensible on the part of the appellant to advance before this Honourable Court that the very document, by which it had derived benefits, that is Exhibits A1 and A2 be declared illegal, null and void. Relying on same Section 22 of the Land use Act, 1978 counsel contends that the holder (i.e. the appellant) of a Statutory Right of occupancy (Exhibit A17) is the one obliged to obtain the consent of the Ondo State Governor before alienating his right of occupancy by way of lease. Counsel urged the court to dismiss this issue as according to him, is substantially misconceived and untenable.

ISSUE SIX

Whether assuming that the contract between the Appellant and 1st and 2nd Respondents is legal (which is not conceded), the Appellant’s Counter-Claim in this suit was not proved before the lower court.

Learned counsel for the appellant submits that the trial court erred in law and misdirected itself on facts by not granting the appellant’s Counter-Claim. His contention is that, since Exhibit A2 had expired in April, 2006, that the appellant was entitled to take possession of its property. Counsel argued that the 1st and 2nd respondents became trespassers on the demised property since May, 2006. That the law allows the appellant to maintain a claim for trespass against the 1st and 2nd respondents.

Learned counsel argued that the learned trial court misdirected itself on facts of Exhibit A2 when it decided that the 2nd respondent was entitled to a year’s notice to quit which was no longer applicable as the 2nd respondent’s tenancy had already expired in April, 2006.

Furthermore, counsel submits that the appellant in his statement of defense and counter-claim contained on PP 9 – 12 of the records sufficiently pleaded his counter-claim wherein it itemized the value of the properties lost in the fire when the 2nd respondent’s lease was still subsisting in 1995. The appellant referred the Honourable Court to his evidence given through DW2 (Mr. Samuel Akinseye) contained on pp. 23 – 30, particularly at page 26 lines 13 – 21 of the records.

Counsel argued that appellant had established on the preponderance of evidence before the trial court its counter claim and that he was entitled to judgment in respect of same. He referred to the following cases:

– Josadeg Nigeria Ltd, & 1 or. vs. N.D.I.C. (2005) 22 WRN p.21 WRN p.39 Lines 5 – 10

– Governor of Ekiti state vs. Ojo (2006) All FWLR (pt. 331) p.1298 @ p.1328 para G.

Learned appellant’s counsel concluded by urging on us to allow the Appeal, set aside the Judgment of the trial court and uphold the Counter – Claim of the Appellant for reasons to wit:

a. That, the appellant has established the expiration of the term certain of the tenancy of the 2nd Respondent in respect of the demised premises since April, 2006.

b. That, the 2nd Respondent was not entitled to a year’s notice to quit based on the contents of Exhibit A2.

c. That, the entire lease agreement between the appellant and the 2nd Respondent as contained in Exhibits A1 & A2 respectively are illegal, null and void for failure of the Governor’s consent thereto in accordance with the provisions of Section 22 of the Land use Act, 1978.

d. That, the doctrine of “est turpi causa non-oritur actio” applies to this case.

Learned counsel for the 1st and 2nd respondents in reaction to issue No. 6 as distilled by the appellant’s counsel submits that the learned trial judge was right in refusing to grant the appellant’s Counter-Claim. He submits that the 1st and 2nd respondents are not trespassers as claimed by the appellant. While also relying on Akinteriwa v. Oladunjoye (2000) FWLR (Pt.10) 1690 @ 1712 paras. D., and Balogun Vs. Yusuf (2013) All FWLR (Pt.594) 60 @ 70 Para. D. E. the learned counsel contends and submits that it is elementary law that the counter-claim constitutes a separate, independent and distinct action wherein the counter claimant needs to prove his claims against whom the counter-claim is made.

Learned Counsel finally urged on us to dismiss issue No. 6 and dismiss the appeal in toto.

RESOLUTION OF THE ISSUES

ISSUE 1(ONE)

Whether the 2nd respondent was still entitled to be given a year’s notice to quit by the appellant after the expiration of the fixed period of ten (10) years tenancy as contained in Exhibits A1 and A2 respectively.

I have gone through the arguments and the submissions of the learned counsel on both sides. It seems to me and I so hold that the 2nd respondent as rightly argued by the appellant is a contractual tenant to the appellant. By effluxion of time, the said 2nd respondent would become a tenant at sufferance who was only; entitled to a week’s notice. The tenancy agreements (Exhibits A1 and A2) which were for a cumulative fixed period of 15 (fifteen years) was to expire in April, 2006. Thus, it does appear to me that as at 26th April, when the appellant’s solicitor issued Exhibit giving them a four (4) days final notice to quit and yield up possession of the demised premises, that it was uncalled for. This is because the tenancy as at that time was still valid and running. There was therefore no need howsoever for any form of quit notice to issue. Granted that the tenancy had expired at the time and there was the need to issue and serve a quit notice, Exhibit A9 as served was inappropriate in the circumstance in view of the terms of clause 2 of the Exhibit A2 which stipulates a mandatory one (1) year’s notice to determine the leasehold relationship by either party to the agreement. In the case of Otusanya vs. Obioha supra per Oshodi J. (as he then was) it was held as follows:

“where the parties have made an express agreement relating to the length of notice to quit…….the notice must be served in accordance with the terms of the agreement. I therefore hold that the tenant is entitled to… as failure to do so amount to a breach of (tenancy) agreement and the tenancy has not come to an end.”

Clause 2 of Exhibit A2 which is the lease agreement made on the 3rd April, 1995 is reproduced hereunder;

“That the parties herein shall have the right to determine this lease agreement by giving one (1) full year’s notice; but this right shall only be exercisable after the expiration of the initial five (5) years of the term of the lease.”

Juxtaposing Exhibit A9 against the background of the foregoing clause 2 of Exhibit A2, the learned trial court was right to hold in its Judgment on page 133 of the records that:

“A tenant who exceeds the period of the tenancy does not become a trespasser by holding over. The length of notice required to determine the lease is already prescribed in the agreement. Since the courts exist to enforce the agreement entered into by parties, I have no difficulty in coming to the conclusion that the appropriate notice in this case is one year. At expiration of the notice if the tenant is obstinate the landlord could approach the court for recovery of possession.”

The terms of contract as rightly held in the foregoing findings of the trial court are meant to be sacrosanct and binding. See also the case of BFI GROUP CORP. vs. BPE (2012) 18 NWLR (pt.1392) 209 SC. Where the Supreme Court held as follows:

“The court must treat as sacrosanct the terms of an agreement freely entered into by the parties. This is because parties to a contract enjoy their freedom to contract on their own terms so long as same is lawful. The terms of a contract between parties are clothed with some degree of sanctity and if any question should arise with regard to the contract, the terms in any document which constitute the contract are invariably the guide to its interpretation. When parties enter into a contract, they are bound by the terms of the contract as set out by them. It is not the business of the court to rewrite a contract for the parties. The court however, has a duty to construe the surrounding circumstances including written or oral statement so as to discover the intention of the parties.”

Consequent upon the foregoing authorities and considering particularly the express provision of Clause 2 of Exhibit A2, it is my holding that the 2nd respondent was indeed entitled to be given a one year’s notice to quit notwithstanding the expiration of the fixed period of 10 (ten) years tenancy. See also the case of Osumah vs. E.B.S (2004) 17 NWLR (pt.902) 332 at 338, on bindingness of terms of contract. It was also held by this court, in the case of Multi Choice (Nig) Ltd. vs. Azeez (2010) 15 WNLR (pt.1215) 40 CA. that:

“In implying terms in a contract, the exercise involved is that of ascertaining the presumed intention of the parties collected from the words of the agreement and the surrounding circumstances.”

Issue 1 (one) is in the event resolved against the appellant.

ISSUE 2 (TWO):

Whether it was appropriate to treat an operating Sawmill license which was never tendered before the trial judge as appurtenances to the demised premises in the instant case.

It is obvious to the court that valid contracts were entered into by the parties as per Exhibits A1 and A2. The contract ran for a cumulative period of 15 (fifteen) years with the provision for yearly renewal of the Saw-mill operating License which was the only legal authority permitting the Sawmill business to be operational. The said Saw-mill Operating License was issued originally to the appellant but was later handed over to the 2nd respondent as a lessee of the Sawmill structure to enable it carry on with the Saw-mill business. The handing over to the 1st and 2nd respondents was done by Mrs. Akinseye (a Director of the appellant’s company). It is in evidence that the 1st and 2nd respondents renewed the operating license yearly throughout the subsistence of the contract period. (See Exhibits A16, A16a and A16b). I am of the firm view that even if it was not expressly stated, there was obviously an implied agreement between the contracting parties to keep the Saw-mill Operating License alive and valid. A contract agreement can be in oral or written or even implied form. See the case of Trade Bank Plc. vs. Dele Morenikeji (2005) 5 NWLR (Pt.920) 309 @ 314 where it was held that:

“An agreement can be oral or can be implied from the conduct of the parties thereto”.

The respondents in their letter dated 27th November, 2006 and marked as Exhibit 46 at the trial court which is on page 147 last paragraph thereof contains this much:

“…And Messrs Felix George offered me the Saw-mill land together with all the APPURTENANCE therein, meant to facilitate an undisturbed use of the premises for a Sawmill Operation. The sawmiil license being part of the appurtenances referred to in paragraph 1 of our agreement of 17th April, 1991, was freely and personally handed over to me by Messrs. Felix George, along with the free area property hammer number DNF 246, and the plank sheds used as offices in the premises. This also included an obligation on my part to renew annually, the sawmill license…. This I have done faithfully for fifteen years with the consent and connivance of the license holders, Felix George & Co…”

I am not in doubt that the Sawmill Operating License was handed over to the 1st and 2nd respondents by the appellant being an appendage to the Sawmill structure without which the Sawmill business cannot be operational. In the circumstances a Saw-mill without its operating license is as useless as an Aeroplane without wings. Being so tied to the Sawmill business, the said Sawmill operating License was rightly regarded by the learned trial Judge to be an appurtenance of the leased property. It was therefore appropriate to treat the operating sawmill license even without tendering same before the trial court, as an appurtenances of the demised premises in the instant case.

Issue 2 (two) is therefore resolved in favour of the respondents and against the appellant.

ISSUE 3 (THREE)

Whether the 3rd to 5th Respondents required the consent of the 1st & 2nd Respondents before the cancellation of the appellant’s Saw-mill license.

On this issue as formulated by the appellant, it is already established that the said appellant on the one hand and the 1st and 2nd respondents on the other entered into a valid contractual agreement vide Exhibits A1 and A2 (lease agreements). For any contract to be valid there must be mutuality of purpose and intention and the contracting parties must agree on the terms of the contract. Thus, a contract is an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable by law. See the case of B.A.T. (Nig.) Ltd vs. Ogunseye (2010) 4 NWLR (Pt.1194) 343 CA.

Be that as it may, the Sawmill Operating License in issue was issued by the 5th respondent to the appellant for the running of the said appellant’s sawmill venture. As is decipherable from Exhibits A1 and A2 (lease agreements), there was a subsequent transfer of the saw-mill structure together with the saw-mill operating license by the appellant to the 1st and 2nd respondents. The transfer was obviously without the prior consent and knowledge of the 5th respondent being the donor of the said saw-mill operating license. To the extent that the saw-mill operating license was executed by the 5th respondent in favour of the appellant per se, to that extent are other parties excluded from the arrangement. This is to say that the 1st and 2nd respondents were not parties to the granting of the saw-mill operating license by the 5th respondent to the appellant. The said 1st and 2nd respondents cannot therefore benefit from the privity of contract thus created between the appellant and the 5th respondent. Indeed the learned trial court was in error as rightly conceived by the learned counsel for the appellant when the said trial court held as follows:

“… I hereby declare that by virtue of the lease agreement dated 17th day of April, 1991 and 3rd day of April, 1995 between the plaintiffs (herein 1st and 2nd respondents) and the 4th defendant (appellant herein), the 4th defendant cannot unilaterally request the 1st to 3rd defendants (3rd to 5th respondents herein) to revoke or cancel the 4th defendant’s saw-mill licence without the consent of the plaintiffs who are lessors in the agreements.”

By its holding the trial court is suggesting that the 3rd to the 5th respondents cannot revoke or cancel the appellant’s saw-mill operating license without the prior consent of the 1st and 2nd respondents. This to me is far from being correct. The 1st and 2nd respondents are obviously not privy to the contract between the 3rd to the 5th respondents on the one part and the appellant on the other. The said 1st to 2nd respondents in the same vein cannot claim privity or be privy to the cancellation or revocation of the said contract. See also Danlop vs. Selfridge (1915) A.C. 847; Chuba Ikpeazu vs. A.C.B. Ltd. (1965) N.M.L.R. 374; and Keighley, Maxsted & Co. vs. Durant (1901) A.C. 240 H.L.

Just like a person who is not a party to an agreement cannot enforce it even if the agreement was made for his benefit, so also the 3rd to 5th respondents do not require the consent of the 1st and 2nd respondents before the cancellation or revocation of the appellant’s saw-mill license. Accordingly issue 3 (three) is resolved in favour of the appellant and against the 1st and 2nd respondents.

ISSUE 4 (FOUR)

Whether the Learned trial judge was right in awarding a sum of one Million Naira (N1,000,000.00 only) as damages against the Appellant, a claim that was not before the court.

The 1st & 2nd respondents as plaintiffs at the lower court made the following claims amongst others against the defendants:

“3. …………………….

4. The sum of Thirty (30) Million Naira General Damages against all the defendants for the business loss occasion (sic) by their disturbance of the business operation of the plaintiffs at the leased sawmill of the 4th Defendant at Alade, Idanre.

5. And a sum of Twenty (20) Naira as General Damages against the 4th Defendant for breach of contract of lease of the said sawmill and for the cost of permanent building/structure constructed on the land of the sawmill by the Plaintiffs on the authority and permission of the 4th Defendant.”

Now, the law is that apart from damages naturally resulting from the breach of contract, no other form of general damages can be awarded.

The 1st and 2nd respondents in the instant appeal duly established by their evidence that they suffered injuries resulting from the breach of the lease agreement they entered into with the appellant. To this end and in the interest of justice the trial court saw the need to award general damages in their favour irrespective of the fact that there was no such specific claim before the court.

I am of the strong view that the award of One Million Naira (N1,000,000.00 only) awarded as general damages by the learned trial court in favour of the respondents and against the appellant in this case was rightly done and need not be disturbed. See also the case of Johnson Wax (Nig) Ltd vs. Sanni (2010) 3 NWLR (Pt.1181) 235 C.A. @ 241. Where this court held that:

“The award of damages is purely within the precinct of the trial court. An appeal court does not ordinarily interfere with such award. It is not sufficient that the appellate court would itself have awarded a different sum if it had been sitting as the court of first instance. To justify a reversal of the trial court on damages awarded the appellate court must be convinced either that:

(a) the trial court acted upon some wrong principle of law; or

(b) that the amount awarded was so extremely high or so very low as to make it, in the judgment of the court, an entirely erroneous estimate of the damages to which the plaintiff is entitled.”

It is consequent upon all my foregoing findings that I resolve issue 4(four) in favour of the respondents and against the appellant.

ISSUE 5

Whether the entire contract between the Appellant and the 2nd Respondent in this case as contained in Exhibits A1 and A2 is not illegal.

It is an elementary legal knowledge that parties are bound by their agreement and as such the agreement can only be voidable and not void or illegal. In the case of R.M A & F.C. vs. U.E.S. Ltd (2011) 9 NWLR (Pt.1251) 379 @ 393 it was held per Nwodo, JCA (of blessed memory) that:

“A contract declared void by statute may not be an illegal contract unless in relation thereto, there is also a penalty imposed by law. It is the penalty that makes it illegal.”

See also Thirwell vs. Oyewumi & 2 Ors. (1990) 4 NWLR (Pt.143) 384; and Simon Bodi vs. Ishaya D. Agyo (2003) FWLR (Pt.156) 815.

It is obvious from the foregoing that for two or more persons to enter into an agreement or contract per se is not on its own an illegality. However, such contract can only be illegal when it has been entered into contrary to the provision of a statute and or with the aim of perpetrating fraud. The working of the court, as I perceive it is expected to as much as possible protect and give effect to the lawful bargains of men rather than be destroyer of such lawful bargains.

In the instant appeal Exhibit A1 was entered into on 17th April, 1991, while the Certificate of Statutory Right of Occupancy (Exhibit A17) covering the leased property was dated and issued 29th April, 1992.This being the case, it follows that the said Certificate of Statutory Right of Occupancy (Exhibit A17) was not operational and in force as at 17th April, 1991, when Exhibit A1 was executed. Be that as it may, Exhibit A2 was executed 3rd April, 1995 being a time Exhibit A17 had become operational. By Section 22 of the Land Use Act, 1978:

“It shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise howsoever without the consent of the Governor first had and obtained…………..”

Furthermore, Section 26 of the same Land Use Act, expressly declares null and void any transaction which does not conform with the provisions of Section 22 supra. See also UBN Plc. vs. Ayo Dare & Sons (Nig.) Ltd. (2000) 11 NWLR (Pt. 679) 644 at 655; and Savannah Bank vs. Ajilo (1989) 1 NWLR (Pt.97) 305.

Leaning on the foregoing authorities, it follows that Exhibits A1 and A2 (the lease agreements) which were executed in the face of Section 22 of the Land Use Act (supra), without the prior consent of the Governor are obviously rendered void and of no effect pursuant to Section 26 (supra). By virtue of the same Section 22, it is the holder of the Certificate of Right of Occupancy (Exhibit A17) and that is the appellant that has the responsibility of seeking and obtaining the Governor’s consent before leasing out the premises to the 1st and 2nd respondent. See also the decision of this court in Vincent Standard Steel Industries Ltd. & Anor. vs. Lead Bank Ltd. & Ors. (2009) LPELR-8214(CA), and Awojugbagbe Light Industries Ltd. vs. Chinukwe (1995) 4 NWLR (Pt.390) 379.

As it were the instant appellant failed to carry out the statutory obligation of obtaining the consent of the Governor of Ondo State before leasing out the property as covered in Exhibits A1 and A2. The transaction is thereby rendered illegal and of no effect. In the light of the principle enshrined in the latin maxim as “exturpi causa non oritur action” which is clearly enunciated in the case of Alhaji Safiriyu Yinusa Shobajo vs. Oluremi Ikotun & Anor. (2003) FWLR Pt.187, p.1751 at 1767; the appellant cannot in the circumstance be allowed to benefit from his own wrong doing, moreso as consideration had passed. It was held in the case of Amadi vs. Nsirim (2004) 17 NWLR (pt.901) 111 @ 114 – 115, that:

“It is the duty of a party as mortgagor to seek the consent of the Governor for him to mortgage his property. To assert that a mortgage deed is null and void for lack of Governor’s consent would therefore be fraudulent and unconscionable”.

Per AKAAHS, JCA (as he then was):

“There is no better way of describing the defendant’s conduct in this case than to say that it is fraudulent and unconscionable. Either as a weapon of offence or as a shield of defence, any plea by the defendant in seeking to nullify a transaction for lack of Governor’s consent is reprehensible when the responsibility of obtaining the consent rests with the defendant especially when consideration has passed. The party in delict should not be allowed to profit by his fraud.”

On the whole and taking cognizance of my findings and reasoning above, the transaction is statutorily illegal due to the dereliction of the appellant. Appellant’s contention herein is not only in bad faith and bad taste but is also reprehensible, fraudulent and unconscionable. Since the appellant is not expected to benefit or reap from an illegality perpetrated by him, issue 5 (five) as raised by the said appellant is thus resolved against him and in favour of the 1st and 2nd respondents.

ISSUE 6

Whether assuming that the contract between the Appellant and 2nd Respondent is legal (which is not conceded), the Appellant’s counter-claim in this suit was not proved before the lower court.

The counter-claimant/appellant pleaded precisely at paragraph 28 of its statement of defence and counter-claim that in 1995 a fire outbreak in the leased premises was reported. The purported fire outbreak burnt the following items of the counter-claimant/appellant:

a. 6 Rooms building = N2 Million

b. Poultry Equipment =N2 Million

c. Block Making Machine =N1.5 Million making a total cost of N5.5 Million.

It is one thing to plead facts and another thing to prove those facts by credible evidence. Given the evidence as led on record by the counterclaimant/appellant, it seems to me and I so hold that the evidence adduced in an attempt to prove the counter-claim was indeed lame and of no consequence. The learned trial Judge aptly made the following findings of facts:

“The duration of the lease vide Exhibit 2 is ten years. The pleadings and evidence show that the plaintiffs are in possession of the premises after the expiration of the lease. However, the plaintiffs are entitled to notice that conforms to the lease for the cause of action for recovery of possession to accrue. The plaintiffs are lawful tenants who are holding over and are by no stretch of imagination trespassers…” See page 161.

Also at page 163 the learned trial Judge went on to hold as follows:

“The evidence of PW1 is that one Chief Idoko at the instance of the 4th defendant Mrs. Akinseye resided in a part of the plank structure and that the fire incident was caused by Chief Idoko’s wife.

From 1995 when the fire incident occured to the filling of the suit, 4th defendant did not demand for payment for poultry equipment and block making machine that were gutted by fire from the plaintiffs. The 4th defendant did not establish the basis of his claim for N2 Million as value of the plank structure that was burnt. The only letter that talks about the fire incident is Exhibit A4 dated 6th July, 2006, it does not refer to any poultry equipment and block making machine. Even though Learned counsel stated at paragraph “E” of the letter that:

“that you have not addressed the issue of the fire out break at your instance in which you agreed to re-build the living quarter and office blocks vide your “letter of 25th January, 1995″.

The letter did not mention either or both equipments. A close examination of the averment in paragraph 28 of the Counter-Claim reveals that it is not an allegation that the plaintiff was responsible for the fire outbreak. The evidence of the Plaintiffs that fire incidence was caused by Chief Idoko whom 4th defendant placed on the land is plausible and believe it. In summary, the 4th defendant has failed to establish Counter-Claim by credible evidence. Accordingly, the counter-claim is dismissed in its entirety”.

The trial Judge was right in his holding that the 1st and 2nd respondents are not trespassers as claimed by the appellants. It is trite law that, a claim for recovery of possession in effect concedes that the claimant is not in possession and a person who is not in possession cannot maintain an action in trespass. See Ezekwesili vs. Onwuegbu (1995) 3 NWLR (Pt.581) 217 @ Page 220 para. 1.

The appellant obviously failed to establish on the preponderance of evidence before the trial court its counter-claim hence it was rightly dismissed by the learned trial Judge. Issue six is accordingly resolved against the counter-claimant/appellant and in favour of the 1st and 2nd respondents.

With issues one, two, four, five and six resolved in favour of the respondents while issue three alone is resolved in favour of the appellant, it follows that the appeal together with the counter-claim shall fail and they have so failed. Consequently the appeal is dismissed for lacking in merit.

SOTONYE DENTON WEST, J.C.A.: I read in draft the leading judgment of my learned brother, CORDELIA IFEOMA JOMBO-OFO, JCA, which I am in complete agreement with. I intend just to add a few words of my own by way of emphasis only.

Having been abreast with the facts of the case, I would like to react on the vexed question of whether the entire contract between the appellant and the 2nd respondent in this case as contained in Exhibits A1 and A2 (lease agreements between the appellant and 1st and 2nd respondent) is not illegal.

The argument for the appellant was that the contract as contained in Exhibits A1 and A2 was illegal in view of the facts that Exhibit A17 which is a Certificate of Statutory Right of Occupancy, issued and dated the 25th day of March, 1992 required the consent of the Ondo State Governor under Section 22 of the LAND USE ACT, 1978 before the deed of lease agreement can be said to have gained validity in law.

In furtherance of this line of argument, the appellant sought to place reliance on a legal maxim which says “EXTURPI CAUSA NON ORITUR ACTIO” which means “no legality can arise from a base or immoral cause.” I do not have any issue with the provision of the law as to the first part of the appellant’s line of argument; of course it is trite law that consent of the Governor ought to be obtained in carrying out contracts of such nature.

However, I do not agree in the alignment of the latin maxim with the argument proffered, for in my mind this does not apply to this case nor was it the intent or purpose for its couching; for to do otherwise, the attendant result would be that the appellant would be backed by the law to benefit from his own very wrong.

In fact, the legal maxim NULLUM COMMODIUM CAPERE POTEST DE INJURIA SUA PROPRIA which means “NO ONE CAN TAKE ADVANTAGE OF HIS OWN WRONG DOING” would be safe to say was couched for all intent and purpose to counter such absurd propositions as canvassed by the appellant in this instant appeal; for it is said that he vainly invokes the aid of the law who transgresses the law (FRUSTRA LEGIS AUXILUM QUAREFIT QUI).

This maxim was equally applied by Akpata, JCA (as he then was) in Adedeji vs. N.B.N. Ltd. (1989) N.W.L.R. (part 96) 212 @ p.226 where he quoted the dictum of Widgeny, L.J. in Buswell vs. Godwin (1971) 1 ALL E.R. 42 J. Thus: “the proposition that a man will not be allowed to take advantage of his own wrong is no doubt a very salutary one and one which the court would wish to endorse.”

It is in line with the foregoing that I also align with the decision of my learned brother, I also endorse that this appeal and counter claim fails. Consequently, I also dismiss the appeal for totally lacking in merit.

MOJEED ADEKUNLE OWOADE, J.C.A.: I read in draft the judgment delivered by my learned brother C. Ifeoma JOMBO-Ofo, JCA.

I agree with the conclusion and I also abide with the consequential order(s).

Appearances

G. O. Omoedu Esq.For Appellant

AND

Olabode Shaba Esq for 1st & 2nd Respondent

Mr. Sam Akinseye Esq for the 3rd, 4th & 5th Respondent.For Respondent