PALMAROL NIGERIA LIMITED & ANOR v. MR. NANA AKPAN ASUAN
(2019)LCN/13132(CA)
(2019) LPELR-47260(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 17th day of April, 2019
CA/C/97/2018
RATIO
CAUSES OF ACTION: DEFINITION
Causes of action are facts which when proved will entitle a plaintiff/claimant to a remedy against the defendant. These facts are discernible by a resort to the writ of summons and the statement of claim and other evidence alleging when the wrong was committed which gave rise to the cause of action. See EGBE V ADEFARASIN (1985)1 NWLR (pt 3) 549, THOMAS V OLUFOSOYE (1986) 1 NWLR (pt 18) 669 BELLO V A.G. OYO STATE (1986) 5 NWLR (pt 45) 825, EGBUE V ARAKA(1988)3 NWLR (pt 84)598 and UNIJOS V IKEGWUOHA (2013)9 NWLR (pt 1360) 478 at 4894.PER MUHAMMED LAWAL SHUAIBU, J.C.A.
LOCUS STANDI: THE FACT THAT A PARTY HAS LOCUS STANDI DOES NOT MEAN THE ACTION IS COMPETENT
Also the fact that a party has the locus standi to institute an action does not mean that the action itself is competent. Thus its competence will depend on the issues raised, the reliefs sought and the applicable laws. See FALEKE V INEC (2016) 18 NWLR (pt 1543) 61 at 145.PER MUHAMMED LAWAL SHUAIBU, J.C.A.
NECESSARY PARTIES: WHO IS A NECESSARY PARTY
A necessary party on the other hand is that person whose presence is essential for the effectual and complete determination of the issues before the Court. It is a party in the absence of whom the whole claim cannot be effectually and completely determined. See GREEN V GREEN (1987) 3 NWLR (pt 61) 408 and AZUBUIKE V PDP (2014) 7 NWLR (pt 1406) 292.PER MUHAMMED LAWAL SHUAIBU, J.C.A.
CAUSE OF ACTION AND PROPER PARTIES AFFECT THE JURISDICTION OF A COURT
As rightly posited that the questions of cause of action and proper parties affects the jurisdiction of Court as they both goes to foundation of the suit in limine, in which case the Court would lack jurisdiction to hear the suit. See G & T. INVESTMENT LTD V. WITT & BUSH LTD (Supra).PER MUHAMMED LAWAL SHUAIBU, J.C.A.
IMPLIED WARRANTY UNDER A CONTRACT OF SALE
Under the contract of sale, there is always the implied warranty that the goods shall be free from any charge or encumbrance from any third party not declared or known to the buyer. See AKERELE V ATUNRASE (1969)1 SCNLR 323, ADELAJA V FANOIKI (1990) 2 NWLR (pt 131) 137 and ABBA V S.P.D.C.N LTD (2013) 112. In the instant case, Exhibit 2A per se constitutes a valid contract.PER MUHAMMED LAWAL SHUAIBU, J.C.A.
PRIVITY OF CONTRACT
The general rule however, is that a contract affects only the parties thereto and cannot be enforced by or against a person who is not a party to it. In other words, only the parties to a contract can sue or be sued on the contract and thus a stranger to a contract can neither sue or be sued on the contract even if the contract is made for his benefit and purports to give him the right to sue or to make him liable upon it. In the same vein, the fact that a person who is a stranger to the consideration of a contract stands in such near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue or to be sued upon the contract. See IKPEAZU V AFRICAN CONTINENTAL BANK LTD (1965)1 N.M.L.R 374 at 379 and MAKWE V NWUKOR (2001) 7 SC (pt 1) at 7.PER MUHAMMED LAWAL SHUAIBU, J.C.A.
Justice
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
Between
Justice
PALMAROL NIGERIA LIMITED
2. CHIEF OTU ROBERT AKPANAppellant(s)
AND
MR. NANA AKPAN ASUANRespondent(s)
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Akwa Ibom State sitting at Ikono delivered on the 20th of December, 2017. The respondent as claimant sued the appellants claiming the following:
1. An order of Court directing the defendants to refund the sum of N700,000.00 (Seven Hundred Thousand Naira) being the money paid by the claimant to the defendants for supply of cement which the defendant never supplied in full and which part of the cement the defendant later confiscated from the claimant.
2. The sum of N67,000.00 (Sixty Seven Thousand Naira) being the expected profit from sales of N450 bags of cement, but lost as a result of the unlawful act of the defendants.
3. The sum of N5,000,000.00 (Five Million Naira) for breach of contract and general damages in that the claimant has suffered pains, injury, shame, public disgrace and serious degradation by the unwarranted arrest, detention and torture of the claimant by the defendants.
4. Cost of this suit together with the sum of N250,000.00 (Two Hundred and Fifty Thousand Naira) being legal
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fee charged by the legal practitioners in this suit.
On being served with the originating processes, the appellants filed a joint defence and counter-claimed thus:-
(a) An Order directing the claimant to return to the defendants 157 bags of Dangote Cement carted away from the defendants shop at 42 Sanni Ogun Road, Ikot Ekpene
OR
In the alternative, the sum of N266,900.00 being cost of 157 bags of Dangote Cement at N1,700.00 a bag.
(b) General damages of N2,000,000.00 (Two Million Naira) only in favour of the defendants for wrongful detention of the defendants 157 bags of Dangote Cement.
In reaction, the respondent filed a reply to the statement of defence and a defence to counter-claim.
The matter proceeded to trial with the parties calling oral evidence and tendering documentary exhibits. In the end, learned trial judge found at page 162 of the record of appeal as follows:
From the totality of the evidence before this Court the claimant has proved his case on the balance of probability or on the preponderance of evidence as is entitled to the reliefs sought.
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On the counter claim, the evidence adduced by the defendants and their witnesses does not support his counter claim. As a result the counter claim must fail.
Dissatisfied, appellants approached this Court vide a notice of appeal filed on 4/1/2018. The said notice of appeal contains nine grounds of appeal.
The appellants filed their brief of argument on 6/4/2018, settled by David G. Udo, Esq. Nine issues are formulated for the determination of this appeal as follows:
1. Whether the proper and necessary parties connected to and involved in the crime which identified the respondent as participant in crime were brought before the trial High Court in suit NO HKN/9/2015(Distilled from ground I)
2. Whether the respondent had any cause of action against any of the appellants arising from the crime of fraud and stealing reported to the police by the appellants against one of their absconded employees Nkebet Esin Jimmy. (Distilled from ground 2).
3. Whether the trial Court was right in holding that an employee who fraudulently performed duties not assigned to him or her was doing so within the ostensible authority of the employer. (Distilled from ground 3).
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4. Whether the trial Court was right in establishing a contract between the appellants and the respondent from a fraudulent document (exhibit 2A) dated 20/10/2015 when the same document was confirmed by the respondent and the police to represent a fraudulent transaction. (Distilled from ground 4).
5. Whether the trial Court was right in making an agreement and enforcing the same agreement between the appellants and the respondent in the judgment now on appeal.
6. Whether the trial Court was right in establishing vicarious liability against the appellants in respect of a document that was in the police custody for investigation purposes and which was not in issue before the trial Court. (Distilled from ground 6).
7. Whether the trial Court was right in holding that the appellants used the police to harass the respondent in the crime reported to the police vide exhibit 5 dated 18/2/2015. (Distilled from ground 7).
8. Whether the trial Court was correct in assessing the 2nd appellant as unreliable witness for asserting that he does not know the respondent as a businessman in the trading of cement, but as a petty
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contractor as from 1977 to 1979 when he was a chairman of Ikono Local Government Council. (Distilled from ground 8).
9. Whether the respondent who had no valid transaction with the appellants was entitled to refund of the money N700,000.00 he paid to a fraudster, general damages and costs amounting to N1,050,000.00 awarded by the trial Court. (Distilled from ground 9).
On his own part, in the brief of argument settled on behalf of the respondent, Nsima Akanga, Esq. adopted all the nine issues formulated by the appellants.
Before delving into the submission of learned counsel on both sides, it is pertinent to albeit briefly state the facts of the case as encapsulated in the respondents brief of argument. The appellants are wholesale cement dealers and distributors while the respondent is a retail cement seller who usually buy cement from the appellants and sell at his outlet shop. On 20/1/2015, the respondent bought from the appellants 450 bags of cement and paid N700,000.00 to the appellants with a promise that the cement would be supplied at a later date.
On 17/2/2015, 300 bags of cement out of 450 bags were
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supplied remaining 150 bags. After waiting for some time, the respondent set out and went to the appellants office at Ikot Ekpene Road to enquire about his remaining cement, he received a phone call from his wife informing him that the 2nd appellant had come and said that he should return back to his shop as the cement was being brought on its way.
On the strength of that call, the respondent turned back to receive his cement in his shop. Few distance to his shop, the respondent was waylaid, bundled and detained by the police on the instigation of the 2nd appellant. The following day being 24/2/2015, the respondent was led in handcuffs by the police in company of 2nd appellant to his shop and confiscated the bags of cement already supplied to the respondent and took to the appellants. After 6 months of repeated visit to the police station for the conclusion of the case, the respondent discovered that the appellants were merely playing pranks and thus commenced a civil suit at the trial Court for refund of money, expected profit as well as damages against the appellants.
A careful perusal of issues 1 & 2 shows that they are
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intertwine and so also issues 3, 4, 5 and 6. I shall therefore compress issues 1 & 2 as well as issues 3, 4, 5 and 6 in considering the argument of the respective counsel.
Issues 1 & 2
On these issues, learned appellants counsel referred to exhibit 5 in contending that the persons involved in the petition leading to the police investigation over the alleged theft of 400 bags of cement are the proper and necessary parties in the suit before the lower Court. Thus in the absence of necessary parties, the respondents claim cannot be fully and effectively determined. And for that reason, the lower Court had no jurisdiction to hear and determine the respondents suit No HKN/9/2015 now on appeal. He referred to AHMED V CBN (2013) 11 NWLR (pt 1365) 352 at 359 and G & T INVESTMENT LTD V WITT & BUSH LTD (2011) 8 NWLR (pt 1250) 500 at 512.
In further contention, learned counsel argued that the cause of action was the respondents complaint that he was arrested by the police over transaction he made with one Nkebet Esin Jimmy wherein he linked the appellants.
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He submitted that a cause of action is said to accrue when a wrongful act of the Defendant result in damage being done to the plaintiff but that the respondent had no cause of action against the appellants as disclosed by the evidence adduced at the lower Court. He referred to L.S.B.P.C. V PURIFICATION TECH. NIG LTD (2013) NWLR (pt 1352) 82 at 87 and AZUH V UBN PLC (2014) 11 NWLR (pt 1419) 580 at 590.
Counsel for the respondent on these issues also referred to the petition to the police exhibit 5 to contend that same dwelt on falsification of records and manipulation of cash book that took place prior to the respondent lawful purchase of cement. Thus the allegation of crime against the respondent was to shield the illegality and liability of the appellants and the respondent was not duty bound to join the police in the suit. And that the respondent had proved that it was the appellants alone that committed the wrong against him. In aid, learned counsel referred to IGE V FARINDE (1994) 20 LRCN 322 at 325 in submitting that a necessary party is the party in the absence of whom
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the claim cannot be effectually and completely determined.
Counsel to the respondent further submitted that throughout the case of the appellants, they have not been able to show that the respondent was in anyway indicted by the police over the purported manipulation of account and that it is not enough to merely allege without proving such allegation. Notwithstanding the police investigation, the respondent submitted that he has the right to approach the Court for redress against the appellants for wrongs committed against him. He referred to IHENACHO & ANOR V UZOCHUKWU & ANOR (1997) LPELR 1460.
Issues 3, 4, 5 and 6
Learned appellants counsel submitted that ostensible authority of an employee does not cover and include fraudulent acts committed with connivance of the third party. He relied on exhibits 1, 2 and 2A which are receipts issued by the said Nkebt Esin Jimmy to the respondent and which receipts were under investigation by the police to confirm that the said employee was not acting within the ostensible authority of the appellants. He referred to
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PAC V INEC (2009) ALL FWLR (pt 478) 260 at 271 to the effect that the respondent having facilitated fraud cannot rely on the purported ostensible authority of the employee to benefit from his mischief.
Counsel contended that Exhibit 2A was not a valid contract document between the appellants and the respondent, yet the lower Court established a contract on the basis of falsified receipt No. 3635 even when the genuine receipt was tendered and admitted as Exhibit 4. He submitted that once it has been shown that no enforceable contract exists between the parties or that what took place does not translate to a contract between the parties, the foundation of the reliefs claimed collapses with the absence of cause of action which in this case is supposed to be a breach of contract. Reliance was placed on NICON HOTELS V NDIC LTD (2007) 13 NWLR (pt 1051) 237, BILANTE INTERNATIONAL LTD V NDIC (2011) 15 NWLR (pt 1270) 407, AJAYI V TOTAL NIG PLC (2013) 15 NWLR (pt 1378) 423 and host of other cases in submitting that the lower Court was wrong in enforcing a contract between the appellants and respondent on the basis of Exhibit 2A.
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And that the respondent has failed to establish any business relationship between him and the appellants.
Counsel further submitted that the lower Court erred in applying the presumption of withholding evidence relating to the receipt books stumps covering the period June 2014 to November, 2014 which were in the custody of the police and was not the basis of the respondents cause of action.
Learned respondents counsel on his part contended that Nkebet Esin Jimmy was while in the employment of the appellants in charge of the 1st appellants store as a store keeper and sales boy. That Exhibits 1, 2, and 2A are receipts issued to the respondent between 2014 and January 2015, and being in the employment of the appellants, the said Nkebet Esin Jimmy was for all purposes an agent of the appellants. Also being an agent of the appellants, he had the appellants ostensible authority to transact with customers as rightly held by the lower Court. He referred to the Blacks Law Dictionary, 6th Edition and the cases of OSIGWE V PSPLS MANAGEMENT CONSORTIUM LTD (2009 LPELR 2807 and ASHIBUOGWU
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V A.G BENDEL STATE (1988) NWLR (pt 68) 138 on the meaning of an agent.
Counsel contended that the argument that Exhibit 2A was forged both at the police station and in the Court was not born out of the evidence and forgery being a criminal allegation, same must be proved beyond reasonable doubt.
Still in argument, learned counsel submitted that it was not the trial Court that created contract for the parties but it was rather the appellants that consciously entered contract with the respondent by offering cement for sale to the respondent who accepted and bought same by making payment as consideration for the cement. He further submitted that Nkebet Esin Jimmy, who acted through his authorized position entered into a valid contract with the respondent on behalf of his principal (the appellants) and the appellants are vicariously liable for his act. He referred to YESUFU V KUPPER INTERNATIONAL N/V (1996) 3 LRCN 411 at 414 415.
Counsel submitted that the cause of action that gave rise to the suit now on appeal is the transaction between the respondent and Nkebet Esin Jimmy as shown in Exhibit 2A.
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Issue 7.
On this issue, learned appellants counsel also referred to the petition Exhibit 5 in contending that it was the investigation activities of the police that identified the respondent as the receiver of stolen goods and that there was no evidence before the lower Court that the appellants used the police to harass the respondent in any manner. Thus, the issue of instigating the police to harass the respondent by the appellants was not born from the evidence but was raised suo motu contrary to the legal prescriptions laid down by the superior Courts relying onOGUEBEGO V PDP (2016) NWLR (pt 1503) 446 at 446.
Learned respondents counsel on this issue, referred to paragraphs 10, 11, 12, 13 and 14 of the statement of claim and paragraphs 2, 3, 4, 7, 8, 9, 10 and 11 of pw3 deposition to contend that issue concerning the appellants instigating the police to harass the respondent was pleaded and that there was weighty evidence that remained unchallenged and uncontroverted before the trial Court.
Issue 8.
Learned counsel for the appellants on this issue submitted that there was no contradiction
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in the evidence of the 2nd appellant to warrant the finding of trial Court that he is not a witness of truth. The 2nd appellant as DW2 according to the learned counsel was emphatic that he knew the respondent only as a petty contractor from 1977 1979 and thus a witness of truth whose testimony was not contradicted in relation to the respondents link in the fraud committed in the business of the appellants.
On this issue, counsel for the respondent submitted that the 2nd appellant was evasive, dishonest and reluctant to tell the truth and that the evaluation of the evidence of 2nd appellant by the trial Court is unimpeachable. He referred to AKPAN V UTIN (1996) 39 LRCN 1187 at 1191 as regards the vintage position of the trial Court in assessing and evaluating the probative value of the evidence of witnesses.
Issue 9
Learned appellants counsel contended that the trial Court awarded the sum of N700,000.00 against the appellants in respect of a non existing contract and that the awarded damages inclusive of cost in favour of the respondent was outrageous and contrary to the laid down legal
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principles. He submitted that throughout the trial no liability was established against the appellants for reporting a crime to the police and no contract was established between the respondent and the appellants. He referred to BABATUNDE V BANK OF THE NORTH LTD (2012) 206 LRCN 61 to the effect that there was no basis for the award of refund, damages and cost by the trial Court. Counsel urged this Court to set aside the award and allow the appeal.
On this, counsel for the respondent submitted that the purported Exhibit 3B (Public Notice) tendered by the appellants lacked probative value and same was unable to prove that such documents exist or had existed as the time the respondent was in transaction with appellants.
On the damages and cost awarded in favour of the respondent, counsel submitted that considering the wrong and injury meted on the respondent by the appellants, no damages that can be awarded to sufficiently assuage the pains and loss suffered by the respondent.
He finally urged this Court to dismiss the appeal and affirm the judgment of the trial Court.
Having considered the submissions of
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counsel on both sides, it appears to me that there is only one issue germane to this appeal, which I find as follows:-
Whether the trial Court was right in holding that the appellants are vicariously liable to the respondent for the acts of their embattled staff.
The resolution of the above will bring to definite halt all other issues raised by the parties in this appeal.
Resolution:
In resolving the above issue, the starting point is what constitute the cause of the respondents action before the trial Court and indeed who are the necessary parties in the suit giving rise to this appeal.
Causes of action are facts which when proved will entitle a plaintiff/claimant to a remedy against the defendant. These facts are discernible by a resort to the writ of summons and the statement of claim and other evidence alleging when the wrong was committed which gave rise to the cause of action. See EGBE V ADEFARASIN (1985)1 NWLR (pt 3) 549, THOMAS V OLUFOSOYE (1986) 1 NWLR (pt 18) 669 BELLO V A.G. OYO STATE (1986) 5 NWLR (pt 45) 825, EGBUE V ARAKA
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(1988)3 NWLR (pt 84)598 and UNIJOS V IKEGWUOHA (2013)9 NWLR (pt 1360) 478 at 4894. Also the fact that a party has the locus standi to institute an action does not mean that the action itself is competent. Thus its competence will depend on the issues raised, the reliefs sought and the applicable laws. See FALEKE V INEC (2016) 18 NWLR (pt 1543) 61 at 145.
In the instant case, paragraphs 12, 13 and 14 of the statement of claim and paragraphs 15, 16 and 17 of the reply to statement of defence and defence to counter claim contained facts or a combination of facts which gave the respondent the right to initiate the instant action against the appellants.
A necessary party on the other hand is that person whose presence is essential for the effectual and complete determination of the issues before the Court. It is a party in the absence of whom the whole claim cannot be effectually and completely determined. See GREEN V GREEN (1987) 3 NWLR (pt 61) 408 and AZUBUIKE V PDP (2014) 7 NWLR (pt 1406) 292.
As rightly posited that the questions of cause of action and
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proper parties affects the jurisdiction of Court as they both goes to foundation of the suit in limine, in which case the Court would lack jurisdiction to hear the suit. See G & T. INVESTMENT LTD V. WITT & BUSH LTD (Supra).
In the instant case, the appellants contended that both the police who allegedly harassed the respondent and the said Nkebet Esin Jimmy through whom the respondent purchased the contentious bags of cement were necessary parties. A plaintiff as a general rule is not bound to sue a particular party. However, where the outcome of the suit will affect that party, one way or other, it will be fool hardy not to join him in the suit. I therefore agree with the submission that the respondents claims would be effectually and completely answered even in the absence of the police and the said Nkebet Esin Jimmy as they were not necessary parties for the purpose of the respondents claim at the trial Court.
Turning back to the nature of the respondents relationship with the appellants, it is uncontestable fact that vide Exhibit 2A the respondent had purchased 450 bags of
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cement from the 1st appellant at the cost of N1,650.00 per bag amounting to N742,500.00 for which N700,000.00 was paid by the respondent. Under the contract of sale, there is always the implied warranty that the goods shall be free from any charge or encumbrance from any third party not declared or known to the buyer. See AKERELE V ATUNRASE (1969)1 SCNLR 323, ADELAJA V FANOIKI (1990) 2 NWLR (pt 131) 137 and ABBA V S.P.D.C.N LTD (2013) 112. In the instant case, Exhibit 2A per se constitutes a valid contract.
The general rule however, is that a contract affects only the parties thereto and cannot be enforced by or against a person who is not a party to it. In other words, only the parties to a contract can sue or be sued on the contract and thus a stranger to a contract can neither sue or be sued on the contract even if the contract is made for his benefit and purports to give him the right to sue or to make him liable upon it. In the same vein, the fact that a person who is a stranger to the consideration of a contract stands in such near relationship to the party from whom
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the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue or to be sued upon the contract. See IKPEAZU V AFRICAN CONTINENTAL BANK LTD (1965)1 N.M.L.R 374 at 379 and MAKWE V NWUKOR (2001) 7 SC (pt 1) at 7.
Without doubt, the above general principle of law admits of a number of exceptions and these includes the case of a contract made by an agent on behalf of an undisclosed principal, who again as general rule is entitled to sue and liable to be sued on such contract. An agent is no more than a person authorized by another to act for him. He is a person entrusted with anothers business, one authorized to transact all business of principal.
From the evidence adduced before the trial Court, Nkebet Esin Jimmy was an agent of the appellant and while acting in that capacity, transacted with the respondent as evident in exhibits 2 and 2A. Although, the appellants denied the existence of the agency relationship but they are emphatic that Nkebet Esin Jimmy was the 1st appellants store keeper whose duties included selling and keeping
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stock of cement. At page 161 of the record of appeal, learned trial judge found thus:-
In the instant case, I believe Nkebet Esin Jimmy acted within the scope of his authorized and his act whether fraudulent or not binds the 1st defendant. It is for the defendants to have sorted it out with Nkebet Esin Jimmy, and not with the claimant. To have used the police to harass the claimant amounted leaving the substance of the whole case in pursuit of the shadow. Even for the police to have shifted the responsibility of producing Nkebet Esin Jimmy on the claimant amounted to the police shirking in its responsibility. It shows acts of laziness on their part.
Learned appellants counsel has strenuously argued that the contract was tainted with illegality and thus unenforceable. It was the case of appellants that the said store-keeper committed fraud in relation to the 400 bags of cement purchased by the respondent and that he has escaped.
It is the law that a contract is illegal if the consideration or the promise involves doing something illegal or contrary to public policy if the intention of
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the parties in making the contract is thereby to promote something which is illegal or contrary to public policy; and an illegal contract is void and cannot be the foundation of any legal right. See ALAO V A.C.B. LTD (1998) 1 2 SC 177 at 194. In HARMAN V FEUCHNER (1885) 15 QBD 561, BRETT M. R. at page 561 said:-
When the object of either the promise or the consideration is to promote the committal of an illegal act, the contract itself is illegal and cannot be enforced.
Also in Halsburys law of England 3rd Edition, volume 8, page 125 para.218 it states:
A contract is illegal where the subject matter of the contract is illegal or where the consideration of it is illegal.
Finally in SODIPO V LEMMINKAINEN & ANOR (No2) (1986)1 NWLR (pt 15) 220 per ESO, JSC observed at page 232 thus:-
I have already set out what Nnameka Agu, JCA said in the Court of Appeal as regards the principle which emerges from the authorities he had examined on the subject. It is that when a contract is ex facie illegal,
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whether illegality has been pleaded or not the Court would not close its eyes against that illegality, as it is the duty of every Court to refuse to enforce such transaction even when illegality has not been pleaded.
Arising from the above, the consensus is that no Court of law or judge has the jurisdiction to enforce an illegal contract. The duty of a Court of law or a judge is to administer Justice according to law. Therefore, it will be a breach of that duty and the oath of office to enforce an illegal contract. Similarly, none of the parties to an illegal contract is entitled to any remedy or relief from a Court of law once a Court or judge becomes aware of the illegality as it is the duty of the Court or judge to stop the case and dismiss the claim for being void and unenforceable. See EKWUNIFE V WAYNE (W.A) LTD (1989) 12 SC 92. at 119.
I have stated elsewhere in this judgment that there was consensus ad idem between the parties and that there existed a valid contract for the sale of cement whereby the respondent paid the store keeper, an agent of the appellant the consideration, even though the cement was
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not instantly supplied. The aspect of the alleged fraud as alluded to by the appellants was in the supply of part of the cement that was paid for by the respondent. It is beyond any peradventure that the appellants petition to the police Exhibit 5 was in respect of fraud and manipulation against Nkebet Esin Jimmy store keeper. Learned trial judge made a profound finding that even though the appellants have denied Exhibits 1, 2, 2A, those exhibits are customized documents in the sense that the company name and address are printed on them. Thus, the appellants cannot disown Exhibits 2 and 2A as well as Nkebet Esin Jimmy. And that there was nothing ex facie illegal in the acts of the said agent carried out in the course of his said duties. I completely subscribe to this view particularly taking into account of the fact that this transaction was not the first of its kind between the parties. Thus, in the absence of any evidence of fraud in the said transaction, the trial Court was right to have kept itself within the bounds of what was made available to it by the parties.
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The award of damages in breach of contract case by trial Court is an exercise of judicial discretion and once such discretion is exercised with due regard to the evidence before the Court, it can hardly be faulted or interfered with by the appellate Court.
I therefore resolve all the issues in favour of the respondent and hold that the appeal is completely devoid of any merit. It is accordingly dismissed with fifty thousand Naira (N50,000.090) cost against the appellants, payable to the respondent.
MOJEED ADEKUNLE OWOADE, J.C.A.: I had the privilege of reading in draft the judgment delivered by my learned brother Muhammed L. Shuaibu, JCA. My learned brother has painstakingly resolved all the issues in this appeal. I agree with him that the appeal is devoid of merit. I dismiss the appeal. I abide with the Order as to costs.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, M.L.SHUAIBU, JCA and I agree with him that award of damages is at the discretion of the trial Court and an appellate Court ordinarily should not disturb it except upon certain conditions when established.
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I agree that the appeal lacks merit and is hereby dismissed. I also abide by the other orders made therein.
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Appearances:
David G. Udo, Esq.For Appellant(s)
Nsima Akang, Esq.For Respondent(s)
Appearances
David G. Udo, Esq.For Appellant
AND
Nsima Akang, Esq.For Respondent
