ALFA SYSTEM COMPANY LTD & ORS v. KEJI ORISAJIMI & ORS
(2016)LCN/8466(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of April, 2016
CA/AK/215/2014
RATIO
EVIDENCE: WHAT IS THE PRIMARY DUTY OF THE TRIAL COURT IN RELATION TO EVIDENCE
The appraisal of evidence and ascription of probative value is the primary duty of the trial Court and where the issue turns on credibility of witnesses, the opinion of the trial Court must be respected.
Osolu V. Osolu (2003) 11 NWLR (Pt. 832) 608. PER MOJEED ADEKUNLE OWOADE, J.C.A.
APPEAL: REQUIREMENT FOR RAISING FRESH ISSUES ON APPEAL
where a question which was not raised at the lower Court is to be raised for the first time in the Appellate Court, leave of Court must be sought and granted.
See: Agedah V. Nkwocha (2002) 9 NWLR (Pt. 771) 113; Ohochukwu V A. G. Rivers State (2002) All FWLR (Pt. 626) 412 at 431 – 432. PER MOJEED ADEKUNLE OWOADE, J.C.A.
ACTION: COUNTER-CLAIM; WHAT CONSTITUTES A COUNTER CLAIM
It goes without saying that a counter-claim is for all intents and purposes, a separate, independent and distinct action and a counter claimant, like all other Plaintiffs, must prove his claim against the person being counter claimed before he can obtain judgment on the counter claim.
See: R. Benkay (Nig.) Ltd V. Cadbury (Nig.) Plc (2006) 6 NWLR (Pt. 976) 338; Ogbonna V. A-G, Imo State (1992) 1 NWLR (Pt. 220) 647; Obmiami Brick and Stone (Nig.) Ltd V. A.C.B. Ltd (1992) 3 NWLR (Pt 229) 260; Dabup V. Kolo (1993) 9 NWLR (Pt. 317) 254; Jeric (Nig.) Ltd. V. UBN Plc, (2000) 12 SC (pt. 11) 133; Musa V Yusuf (2006) 6 NWLR (Pt. 977) 454. PER MOJEED ADEKUNLE OWOADE, J.C.A.
RELIEFS: SHOULD COURTS GRANT RELIEFS NOT SOUGHT BY PARTIES
I agree with the Learned Counsel for the Respondents and the trial Court that a Court should not award that which is not claimed by a party as the Court is not a charitable organization and the judge who personified same is not a father Christmas. Hence, the legal maxim: judex non veddit plus quam petens ipse requirit meaning – a judge does not give more than that for which the Plaintiff asks.
See Stowe V. Benstowe (2012) All FWLR (Pt. 620) 1245 at 1261; Union Beverages V. Owolabi (1988) 1 NWLR (Pt. 68) 128 at 129; Onah V. Okon (2012) All FWLR (Pt. 647) 703 at 723. PER MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
1. ALFA SYSTEM COMPANY LTD
2. UFUOMA INVESTMENT LTD
3. JOHNSON AGBRO Appellant(s)
AND
1. KEJI ORISAJIMI
2. MRS, STELLA OLUSOLA AGUBIADE
3. KOKUMO ORISAJIMI
4. SEGUN ORISAJIMI
5. OLALEKAN ORISAJIMI
6. AKINTUNDE ORISAJIMI
7. OLUWASEYI ORISAJIMI
8. TAYE ORISAJIMI
9. OLUWAREMILEKUN ORISAJIMI
10. ATINUKE ORISAJIMI
11. MATTHEW ORISAJIMI
12. HENRI OYENIYI AYOMIDELE Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Honourable Justice W. R. Olamide of the High Court of Justice, Ondo State of Nigeria Holden at Ondo delivered on the 25th day of June, 2014.
The Appellants as Claimants instituted this action in the Court below by a Writ of Summons and Statement of Claim on 7/8/2006.
The Appellants/Claimants Statement of Claim was subject to various amendments culminating into the 4th Further Amended Statement of Claim dated 16th day of July, 2013 but filed on 22nd day of July, 2013.
Whereof in the said document, the Claimants claim as per their Writ of Summons to wit.
45. Declaration of Title to the Warehouse situate at Block 11, Plot 9, Dosekun lay-out, Adeyemi College Road, Ondo in Ondo West Local Government Area.
46. Specific performance of the oral and written agreement entered into sometime in June/July 2006 by the Defendants with the Plaintiffs and for conveyance and delivery of possession of Block 11, Plot 9, Dosekun Layout and all other document relating to the said warehouse to the Plaintiffs.
47. General Damages of N1, 500,000,000.00 (One Million, Five Hundred Thousand Naira Only).
48. An order of perpetual injunction restraining the Defendants, their agents, assignees or whosoever claiming through them from exercising any right on or over Block 11, Plot 9, Dosekun Layout, Adeyemi College Road, Ondo, Ondo West Local Government Area otherwise known as the Warehouse to the detriment of the Claimants.
The final response by the Respondents?Counter-Claimants to the above final process of the Appellants Claimants is the 1st Further Joint Amended Statement of Defence and Amended Counter-Claim of the 1st – 13th. Defendants filed on 29/7/2013. Therein the 1st – 13th Defendants (later 1st – 12th Defendants, consequent on the demise of one of the Defendants) Counter-Claimed in paragraph 42 as follows:-
42. Whereof the 1st – 13th Defendants/Counter Claimants claim against the Claimants as follows;
a. A Declaration that by the operation of law the 13th Defendant is the person entitled to re-possess the Warehouse at Adeyemi College Road, Ondo from the Claimants at the expiration of their tenancy/leasehold which has come to an end on 20th
day of February, 2007 and same to be handed over to the 13th Defendant who is the owner by purchase.
b. An order of Court restraining the Claimants by themselves, agents and privies from disturbing the 13th Defendant/Counter Claimant from exercising his rights of ownership over the said property.
c. An order of the payment of the sum of N3,600,000.00 being the rents of the Warehouse incurred by the Claimants from 21st day of February, 2007 to 21st day of February, 2012 at the rate of N600,000.00 per annum and mesne profit thereafter until possession of the Warehouse is delivered by the Claimants to the 13th Defendant being the owner of the property by purchase.
The Claimants/Appellants did not on account of the above mentioned process by the Respondents Counter Claimants make any further amendments to their Amended Reply to Statement of Defence and Defence to Counter Claim dated and filed on 25/2/2013.
Upon the conclusion of the pre-trial conference in the Court below, hearing commenced on 14th November, 2013. The 3rd Appellant Claimant gave evidence and the Claimants called five other witnesses while the Respondents called four witnesses.<br< p=””
</br<
The summary of the case of the Appellants Claimants from their pleadings and evidence is that they were the lessees/tenants and occupiers of the property in dispute and were let in possession by the deceased father of the Respondents. That at the time of the commencement of their lease of the premises, the property in dispute was in very bad shape and that with the consent of the late father of the Respondents, their original land lord they expended a sum of N829,000.00 (Eight Hundred and Twenty Nine Thousand Naira Only) to renovate the property now in dispute for their needs and to satisfy their own requirements.
That upon the death of the father of the Respondents, a four-man committee appointed by the family of the Respondents approached them for the purchase of the property. That they agreed to the sum of Three Million Naira (N3,000,000.00) as purchase price for the property and gave a sum of N150,000.00 to the four-man committee having secured from the committee a first option of purchase whereby the 11th Respondent Mathew Orisajimi signed the 2nd Appellant payment voucher and handed over the original copy of the building plan of the proposed store
to the Claimants as assurance and pledge that the cocoa building store would be sold to them.
The Appellants Claimed that they eventually went to the Respondents with a cheque of Three Million Naira (N3,000,000.00) and a prepared land Agreement but that the 11th Respondent raised objection to the acceptance of the cheque and the land Agreement by the Respondents family claiming that the cocoa store has already been sold.
The Respondents agreed that they intended to sell the cocoa warehouse to the Appellants and indeed gave the Appellants a first option to purchase but that the Appellant did not furnish any consideration at the expiration of the time line of 30th day of June, 2006. That the Warehouse had been sold at the time the Appellant brought a cheque and land Agreement sometime in July 2006.
The Respondents denied consent of their late father to the renovations carried out on the property by the Appellants but admitted knowledge of same. They added that their late father was not agreeable to the amount of money the Appellants claimed to have expended on the renovation.
?Based on these facts, the learned trial Judge held that there was no
valid contract of sale between the Respondents and the Appellants to warrant an order of specific performance by the Court. And, that even though the Appellants gave copious evidence of the renovations on the warehouse, it was established that it was not done with the consent of the Respondents and in any event, there was no relief in the Appellants statement of claim as to reimbursement and/or claims on the amount expended on the renovation.
Furthermore, the learned trial Judge observed that the Appellants did not furnish further reactions to the Respondents 1st Further Joint Amended Counter Claim of 1st – 13th Defendants which was the last process filed by the Respondents.
Finally, the learned trial Judge dismissed the Appellants’ claims and upheld the counter-claim of the Respondents.
Dissatisfied with the judgment, the Appellants filed a Notice of Appeal containing seven (7) Grounds of Appeal in this Court on 15/9/2014.
Appellants’ brief of argument dated 19/6/2015 was filed on 23/6/2015. Respondent’s brief of argument dated 21/7/2015 was filed on the same day.
Learned Counsel for the Appellants nominated four (4) issues for
determination. They are:-
1. Whether the trial Judge of the lower Court properly evaluate and construe the evidence of the Appellants witnesses vis-a-vis the Appellants statement of claim, reply to statement of defence, defence to the Defendants counter-claim and the Exhibits tendered during the trial, particularly Exhibits CE and CK which is the payment voucher and the warehouse building plan in determining the intention of parties to the warehouse sale and if the Court ought not to have made an order of specific performance of the sale of the warehouse to the 3rd Appellant.
2. Whether the Appellants indeed abandoned their Amended Reply to Statement of Defence and defence to Counter Claim dated 27th day of November, 2012, which was filed independently and separately from the Appellants’ 3rd further amended statement of claim.
3. Whether Exhibit DWA which is the Agreement between the 1st to 11th Respondents and the 12th Respondent is not vitiated by fraud when the cheque evidencing payment pre-date the date Exhibit DWA was executed.
4. Whether the trial Judge has jurisdiction to exercise judicial discretion to make consequential order to
award the sum of N829,000.00 (Eight Hundred and Twenty Nine Thousand Naira Only) as reimbursement to the Appellants having been convinced that the Appellants witnesses evidence established renovations.
Learned Counsel for the Respondents on the other hand formulated three
(3) issues for determination. They are:-
a. Whether there was a valid contract between the Appellants and the 1st – 11th Respondents for the sale of the property in dispute to justify claim for specific performance. (Grounds 1, 2, 3 and 4).
b. Whether the Respondents are entitled to judgment on their counter claim. (Grounds 5 and 6).
c. Whether the Court has jurisdiction to grant an order or relief not specifically asked for by the Appellants. (Ground 7).
Learned Counsel for the Appellants submitted on issue one that the learned trial Judge did not cogently sieve, consider and properly evaluate the evidence of the Appellants witnesses in collaboration with paragraphs 21 and 22 of the Appellants’ (Claimants) 4th amended statement of claim. That the 3rd Claimant, Mr. Johnson Agbro who was the Claimants’ 5th witness gave copious evidence in support of the facts
pleaded in paragraph 21 and 22 of their 4th amended statement of claim.
This, Counsel said is evident in paragraph 30, 31 and 32 of his witness statement on oath dated 25/2/2013.
Appellants’ Counsel reviewed the evidence of CW1, CW2, CW3 and CW5 as witnessing the payment of the sum of N150,000.00 to the four man committee based on the instruction of the 1st Respondent as public relation.
Counsel submitted that the exercise of the right of the Court to evaluate the evidence on Exhibit ‘CE’ becomes imperative as the evidence of the Claimants witnesses on the same was not controverted.
?Similarly, according to Counsel, the Court ought to be interested in finding out, the reason why Exhibit ‘CK’ was in possession and custody of the 3rd Appellant who represents the 2nd Appellant as Exhibit CK, which is the original copy of the warehouse building plan is the only document available to show that the Warehouse belonged to Late Chief Jacob Popoola Orisajimi, the late landlord of the Appellants.
He submitted that the assertion of CW5 that the 11th Respondent gave him Exhibit CK as a pledge of assurance that the Warehouse would be sold to
him having received Exhibit CE is impeachable (sic) unimpeachable because CW5 was not cross-examined on the subject matter of Exhibits CE and CK.
Ironically, said Counsel, the same Exhibit CK which the Respondents claimed got burnt was the same document handed over to the 3rd Appellant as a pledge of assurance that the Warehouse will be sold to him.
He submitted that the trial Court ought to hold that the 11th Respondent actually gave Exhibit CK to the 3rd Appellant upon receiving the sum of N150,000.00 (One Hundred and Fifty Thousand Naira only) as a pledge of assurance that the Warehouse will be sold to him.
He noted that the lower Court held partly that “the inference that could be reasonably drawn from the payment of a sum of N150,000.00 (One Hundred and Fifty Thousand Naira only) is primarily to influence the four man committee so as to sway the whole family to endorse the sale of the property to the Claimants”.
He submitted on the above that the trial Judge is not permitted by law to make case for the parties to a suit much more like the trial judge had done on behalf of the Respondents in this case.
?On this, he referred to the
cases of Odusote V. Military Governor, Ogun State (2002) FWLR (Pt. 123) 361 at 391; Alli V. Alesinloye (2000) FWLR (Pt. 15) 2610 at 2642 to 2643.
Appellants Counsel submitted that the Court lacks jurisdiction to regard the N150,000.00 (One Hundred and Fifty Thousand Naira Only) paid to the members of the four man committee as incentive to influence the four man committee as the trial Judge did not make corresponding issue out of the N500.000.00 (Five Hundred Thousand Naira Only) similarly paid by the 12th Respondent to the other Respondents as stated by DW4.
Appellants’ Counsel pointed out contradictions in the evidence of DW1 and suggested that in all the circumstance of the case, the trial Judge ought to have ordered specific performance of the sale of the Warehouse to the 3rd Appellant by the 1st to 11th Respondents,
He referred to the case of Best (Nig,) Ltd V. Blackwood Hodge (Nig.) Ltd. (2011) All FWLR (Pt. 573) 1955 at 1970 – 1971 and explained specific performance as an equitable remedy that lies within the Court’s discretion to award whenever the common law remedy is insufficient.
?Counsel submitted that it is the evidence of CW1
during cross examination that the money for the payment of the property was available. CW2 also corroborate the evidence of CW1 to the effect that the cash of Three Million Naira was brought for payment of the Warehouse and that by their second visit, the cheque for the payment of the Three Million Naira was brought to the 1st to 11th Respondents in the presence of DW2.
He submitted that the witnesses for the Appellants corroborate themselves that they came to the Respondents twice first on 23/6/2006 and secondly on 16/7/2006 prepared on both occasions to pay the agreed sum of Three Million Naira.
That CW5 witnessed that after refusing the cheque of Three Million Naira, the appellants said they will extend their invitation to the 3rd Appellant at a later date.
Appellants’ Counsel referred to the case of Att. Gen. Nasarrawa V. Att. Gen, Plateau State (2012) All FWLR (Pt. 630) 1262 at 1282 that the agreement to sell the Warehouse to the 3rd Appellant was an agreement the 1st to 11th Respondents ought not to back out from and that the Court failed, declined and refused to consider the time tested principle of PACTA SUNT SERVANDA in considering the
agreement between the parties in determining the order of specific performance.
Counsel submitted further that where parties have entered into contract or an agreement, a party cannot ordinarily resile from such contract or agreement just because he later found that the conditions of the agreement are not favourable to him. And, that where time is of the essence of a contract the innocent party who has set new time with which the contract can be performed is deemed to have affirmed the contract and set a fresh period of performance.
On this, he referred to the case of F.G.N, V. Zebra Energy Ltd (2003) FWLR (Pt 142) 154 at 205.
Appellants’ Counsel noted that the 11th Respondents who received the said sum of N150,000.00 (One Hundred and Fifty Thousand Naira Only) was not called as a witness by the Respondents to disclaim the prove of CW1. That beyond this, the contradictions in the evidence of the Respondent witnesses especially as regards Exhibits DWC, DWA and DWB are such that the trial Court cannot pick and choose which to believe but to hold that the assertion on those contradictory evidence remains unproved.?
On this, he referred to
case of Ariolu V. Ariolu (2011) All FWLR (Pt, 599) 1152 at 1167.
Finally on issue one, Counsel submitted that where a Plaintiff (Claimant) has wholly or in part (as in the Appellants instance) executed his own part of the parole agreement or has paid the purchase money and has been let into possession, even though no deed of sale has been executed, a Court of equity will order specific performance on the ground that it would be fraud on the Defendant’s part not to carry out his own part of the contract.?
He referred to the case of Help (Nig.) Ltd V, Silver Anchor (Nig.) Ltd. (2006) All FWLR (Pt. 311) 1833 at 1849.
In response to Appellants’ Issue One, the Respondents referred to the cases of B.F.I Group V. Bureau of Public Enterprises (2008) AFWLR (Pt. 418) 1919 and Orient Bank (Nig.) Ltd V. Bilante International Ltd (1997) 8 NWLR (Pt. 515) 37 and submitted that to be able to establish a valid contract, five ingredients must be present. They are offer, acceptance, consideration, intention to create legal relationship and capacity to contract. For a contract to exist, all the five ingredients must be present.
?Learned Counsel for the
Respondents submitted that the Appellants in this case in their evidence said that a four-man committee approached the 3rd Appellant for the sale of the Warehouse sometime in June 2006 and that there was arrangement to sell the property to him but that nothing was paid not even as a deposit. That the only money he allegedly paid was N150,000.00 to one Mathew Orisajimi, a commission even though it was written on the voucher as PR which his oral evidence cannot change.
He referred to B.F.I.G V. B.P.E (2008) A FWLR (Pt. 416) 1915.
He submitted that the 1st – 11th Respondents said in their evidence-in-chief, which was never controverted that there was intention to sell the property to the 3rd Appellant and he was given up to the end of June to make payment but failed.
In essence, said Counsel, no valid contract was established by the Appellants Claimants having regard to the fact that no consideration was paid for the property. That what the four-man committee had with the 3rd Appellant was an oral agreement to sell the property to him while time was of essence of the agreement which was on or before 30th June, 2006.
?He submitted further that
since contract for the sale of land must be in writing, there was no valid agreement and the Court cannot order specific performance.
He referred to the provision of Section 2 of CONTRACTS LAW Cap 33 ONDO STATE 2006 and also the case of Olaniran V. Adebayo (2008) All FLWR (Pt. 410) 767 at 769.
He submitted that by the pleadings and evidence of the Respondents, it was clearly stated that the Appellants were given time until 30th day of June, 2006 to pay for the property otherwise the Warehouse would be sold to any other prospective buyer. Counsel noted that the Appellants did not challenge this fact during the cross-examination of the Respondents witnesses. He added that unchallenged and/or uncontroverted facts are deemed admitted.
He referred to the cases of Cappa & Dalberto Ltd V. Akintilo (2003) 9 NWLR (Pt. 824) 49 at 58; Mobil Producing Unltd. V. Monokpo (No. 2) (2001) FWLR (Pt. 78) 1210 at 1246 Nzeribe V. Dove Engineering Ltd. (1994) 8 NWLR (Pt. 361) 124; Nacenn V. Bewal (2011) 46 (Pt. 1) NSCQR 230 at 247.
?He submitted that Appellants in their bid to show that they concluded the contract within the time stipulated by the 1st –
11th Respondents gave contradictory evidence as against their pleading at paragraph 24 of the Claimants 4th Amended Statement of Claim. Claim that CW5 who is the 3rd Appellant testified to the effect that he visited Ile-Ife twice, first time with Three Million cash on the 23rd of June 2006 and the second time with N3 Million cheque on the 16th of July 2006. CW3, the 2nd Appellant testified to the effect that he went to Ile-Ife to make the payment with cheque on the 17/7/2006 and that he never went there before then with cash.
While CW2 testified that he did not pay for the property but he brought N3 Million cash. But at the family meeting, at the second time he now brought cheque instead of cash as demanded by the children. At page 279 “I was present at the two meetings —- the Claimants brought cash on 16/7/2006. I can’t remember when they brought cheque.” This according to Counsel goes to credibility of the Appellants witnesses.
Respondents Counsel submitted further, referring to the cases of Aiyetoro Comm. Trading Co, Ltd V. N.A.C.B Ltd (2003) 12 NWLR (Pt. 834) 346 and Section 136 of the Evidence Act, 2011 that the burden is on the Claimant
who has made a positive assertion to prove it by credible evidence before the trial Court.
He maintained that the inconsistent or contradictory evidence of the Appellants’ witnesses cannot amount to proof. He referred to the cases of Okafor V. Ejiogu (2011) All FWLR (Pt. 599) 1157; Onya V. Ogbuji (2011) AFWLR (Pt. 566) 493 at 497 and Orekpan V, Amadi (1993) 11 SCNJ 68.
He submitted that in any action for specific performance the Claimant must establish that he had carried out his own part of the contract, which will render it inequitable for the Court to hold otherwise. In the instance case, said Counsel, there is no doubt that the 1st – 11th Respondents offered the Appellants an opportunity to purchase the Warehouse upon the condition that the Appellants pay the sum of N3 Million on or before 30/6/2006 but the Appellants did not meet the condition.
He submitted that it is settled law that if time is made the essence of an agreement and the time frame is not met by performance or acceptance within the time stipulated, the offeror will not be held to a contract. Further, that, an offer may only be accepted in the manner and terms attached
to the offer. After referring to the cases of College of Medicine V. Adegbite (1973) 5 SC 149; M.O Kanu Sons & Co. Ltd V FBN Plc (2000) All FWLR (Pt. 327) 462 at 476 and Best (Nig.) Ltd V. Black Wood Hodge (Nig.) Ltd. (2011) AFWLR (Pt. 573) 1955 at 1959.
Respondents Counsel submitted that it is noteworthy that the Appellants never paid the sum of N3 Million which is the consideration for the contract to the 1st – 11th Respondents on or before 30/6/2006.?
CW5 admitted this fact under cross-examination at page 285 of the record. Counsel referred to the cases of Ohiwerei V. Okosun (2003) 11 NWLR (Pt. 832) 463 at 484 and Help (Nig.) Ltd V. Silver Anchor Nig. Ltd (2006) AFWLR (Pt. 311) 1833 at 1836 and submitted that where no consideration is furnished specific performance of contract will not be granted.
?In response to the submission of the Appellants Counsel that N150,000.00 was paid as 5% commission for the purchase price of the contract and same was received on behalf of the 1st to 10th respondents, he submitted, that a document speaks for itself and oral evidence is inadmissible to contradict, add to or vary the contents of a
document.
He referred to the case of NIDB V. Olalomi Industries Ltd, (2002) 5 NWLR (Pt. 761) 532.
He submitted that Exhibit CE which is the payment voucher as contained on page 180 of the record shows that the N150,000.00 was paid as PR and not as part payment or 5% commission for the consideration of the contract. Also, it (Exhibit CE) further shows that the N150.000.00 was received by Mathew Orisajimi personally and not on behalf of the 1st – 10th Respondents as the Appellants claimed.
The Appellants witnesses, said Counsel admitted that the sum of N150,000.00 was paid to Mathew Orisajimi as public relation. CW1 said he was there when Mathew Orisajimi collected the N150,000.00 and signed for it. CW2 agreed that the Warehouse is a family property which does not belong to Mathew Orisajimi and that Mathew Orisajimi collected the sum of N150,000.00 in cash. Mr. Oleh power the representative of the 2nd Appellant agreed that Exhibit CE was payment for public relation. This was corroborated by CW5.
Respondent’s Counsel referred to the case of Adusei V. Adebayo (2012) All FWLR Pt. 647) 664 at 679 for the proposition that a fact which is admitted
needs no further proof.
He submitted that the sum of N150,000.00 paid as public relation to Mathew Orisajimi who is not the sole owner of the property or the head of the family outside what is agreed as a consideration will not qualify as a means upon which the Court will consider in granting an order of specific performance of a contract.
Still on the above, Counsel submitted that the Court can draw inference from the available evidence before the Court vis-a-vis from the addresses of Counsel which the trial Court did in delivering judgment. Therefore, this cannot amount to the issue of making case for the party.
Learned Counsel for the Respondents submitted further that assuming but without conceding that 11th Respondent handed over Exhibit CK, the building Plan to the 3rd Appellant, Exhibit CK is not evidence of sale and cannot be a substitute for the failure of consideration having failed to conclude the contract at the stipulated time.
He submitted that contrary to the argument and submission of the Appellants’ Counsel, it was crystal clear that at the time the Appellants purportedly claimed to have come to conclude the contract on
17/7/2006, there was no contract to perform anywhere, as time (i.e. 30/6/2006) given by the family had expired. The family had sold the property to another prospective buyer who happened to be the 12th Respondent. Therefore, said Counsel, there cannot be any further date for the performance of the contract with the Appellants after Exhibit DWA was dully executed.?
He added that CW3 admitted that 1st – 11th Respondents told them that the property had been sold to another prospective buyer at the time they went to Ile-Ife contrary to the evidence of CW5, the 3rd Appellant.
He submitted that Respondents are not duty bound to the 11th Respondent as a witness at the lower Court since he is neither the head of the family, nor a principle member of the family, he is not the head of the committee set up by the family and his name was not among the family representative who must sign the agreement for the sale of the property. More so, it was admitted by the Appellants that the property in question does not belong to the 11th Respondent alone but a family property.
?He submitted that all the argument and submission of the Appellants Counsel to show
that there is a valid contract between the Appellants and the 1st – 11th Respondents family cannot stand. This he said is because it is trite that however beautiful, alluring and scintillating the argument and submission of a Counsel could be, it cannot take place of facts and evidence before the Court.
On this, Counsel referred to the cases of:
Olufosoye V. Fakorede (1993) 1 NWLR (Pt 272) 747; Aro V. Aro (2000) 3 NWLR (Pt. 49) 421, 443; Daylop V. Oradiegwu (2000) 3 NWLR (Pt. 669) 42 at 423 Okon V. UBI (2006) All FWLR (Pt. 328) 717 at 723; BFI Group Corp V. Bureau of Public Enterprises (2013) All FWLR (Pt. 676 444 at 457.
Finally, Respondents Counsel submitted that specific performance is an equitable remedy. Therefore, no Court of justice will grant such remedy where the party has not approached it with clean hands. He referred to the case of Zenith Bank Plc V. John (2013) All FWLR (Pt. 677) 718 at 728 and urged us to resolve issue one against the Appellants.
?In the determination of Appellants’ Issue One, there are some settled facts in the interplay of pleadings and evidence that must necessarily be brought to the fore more especially
for the learned Counsel to the Appellants to appreciate the nature and extent of the transactions between the parties.
1. The Appellants were given the first option to purchase the Respondents Warehouse subject to a payment deadline of 30/06/2006.
2. The Appellants through Exhibit CE paid a sum of N150,000.00 to Mathew Orisajimi, 11th Respondent as Public Relations for the transaction to be effected.
3. In the course of negotiations, the Appellants approached the Respondents with the agreed some of N3 Million Naira and Exhibit CF an unsigned Agreement prepared by the appellants evidencing intention to sell the property to the Appellants.?
4. That the agreed sum of N3 Million Naira for the purchase of property and Exhibit CF were presented to the Respondents on or about the 17/7/2006.
5. That the Respondents refused to accept the sum of N3 Million Naira and Exhibit CF brought to them by the Appellants and made it clear on the spot to the Appellants that the property had since been purchased by another (12th Respondent).
6. That at no point in time did the Respondents ever received any payments as a family in relation to the
sale of the disputed property.
The above are the salient facts on which issue one is to be considered.
Indeed, they are the same facts that constitute the fulcrum of the case in the Court below and this appeal. The pertinent questions to be asked therefore is (a) was there a valid contract of the sale of the disputed property (b) could the Court have ordered specific performance?
The answers to these two related questions are in the negative.
First, to be able to establish a valid contract, five ingredients must be present. They are offer, acceptance, consideration, intention to create legal relationship and capacity to contract. All the five ingredients must be present before a valid contract can exist in law. A contract cannot be formed if any of the ingredients is absent.
See: Okubule V. Oyagbola (1990) 4 NWLR (Pt. 147) 723; Orient Bank (Nig.) Plc, V. Bilante Int’l Ltd. (1997) 8 NWLR (Pt. 515) 37; Obaike V. B.C.C. Plc (1997) 10 NWLR (Pt. 525) 435; Omega Bank (Nig.) Plc. V O.B.C Ltd (2005) 8 NWLR (Pt. 928) 547; Sona Breweries Plc V. Peters’ (2005) 1 NWLR (Pt. 908) 478; C.A.P Plc V. Vital Inv. Ltd (2006) 6 NWLR (Pt. 976) 220;
Amana Suits Hotels Ltd v. PDP (2007) 6 NWLR (Pt. 1031) 453.
In the instant case, whichever else of the five ingredients of a valid contract could be said to be present in the events of negotiations and/or transactions between the parties, it is clear that no consideration in terms of payment in respect of the subject matter ever passed from the offeror to the offeree that is between the Respondents and the Appellants in the instant case.
A related consideration in this instance is that the Respondents only offered to pay the agreed price after the stipulated time of 30/6/2006 when in fact the offer by the Respondents offeror to the Appellants offeree has expired.
It is settled law that if time is made the essence of an agreement and the time frame is not met by performance or acceptance within the time stipulated, the offeror will not be held to a contract. Further, an offer may only be accepted in the manner and terms attached to the offer. M.O. Kanu, Sons and Company Ltd, V. FBN PLC. (2006) 5 SC (pt. 111) 80; College of Medicine V. Adegbite (1973) SC. (Reprint) 106, 1973) 5 SC 149.
Similarly, where as in the instant case, parties to a
contract have by their mutual agreement made time for payment a condition, a breach of that condition has the effect of putting an end to the contract. See Arta Ind. Ltd V. NBCI (1997) 1 NWLR (Pt. 483) 574 at 599; Leyland Nigeria Ltd V. Dizengoff (1990) 2 NWLR (Pt. 134) 610 and Johnson B. Bekederemo V. Colgate Palmolive (Nig. Ltd (1976) SC 35.
Given the above stated facts, the insinuation by the Learned Counsel for the Appellants that the trial Court made a case for the Respondents when it held that “the inference that could be reasonably drawn from the payment of a sum of N150,000,00 (One hundred and Fifty Thousand Naira Only) is primarily to influence the four man committee so as to sway the whole family to endorse the sale of the property to the Claimants” cannot be supported in fact or in law. It cannot be supported in fact because evidence abound including Exhibit CE that the N150,000.00 was paid to Mathew Orisajimi – 11th Respondent and not the family as Public Relations and in law because it is within the province of adjudication for a trial Court to draw inferences from the available evidence before it. The appraisal of evidence and
ascription of probative value is the primary duty of the trial Court and where the issue turns on credibility of witnesses, the opinion of the trial Court must be respected.
Osolu V. Osolu (2003) 11 NWLR (Pt. 832) 608.
In the scheme of things, as far as this case is concerned, the learned trial judge was right not to have decreed specific performance. This is because the Court may not order specific performance of a contract if the Claimant thereof is guilty of delay in performing his own part of the contract, where time is of the essence of the contract or the delay by the plaintiff was such as may be regarded as evidence of abandonment of the contract between the parties.
Universal Insurance Company Ltd V. Hammond Nigeria Ltd (1998) 9 NWLR (Pt. 565) 340 at 344; Afretec Technical Servis V. MIA & Sons Ltd. (2000) 12 SC (Pt. 11) at 41/42; Help (Nig.) Ltd. V. Silver Anchor (Nig,) Ltd (2006) 5 NWLR (pt 972) 196.
In the instance case, there was no valid contract between the Appellants and the 1st – 11th Respondents for the sale of the property in dispute to justify claim for specific performance.
Issue one is resolved against the
Appellants.
On issue two, appellants Counsel complained that the trial Judge in his judgment held thus:
“In respect of the above reliefs sought by the counter-claimants, the original Claimants never filed any defence thereto except in the 3rd amended statement of claim which has been subsumed by fourth amended statement of claim. It is undoubtedly settled law that parties are bound by their pleadings and once a pleading is amended, the original pleadings no longer has any effect in the proceedings since fourth amended statement of claim was filed, the 3rd amended statement of claim does not exist any longer. Its life having been taken by the extant fourth amended statement of claim. Furthermore, the only attempt at addressing the issue is in the Claimant’s Written Address wherein Counsel tersely said DW4 did not know anything about the purported sale of the warehouse and his alleged manager.”
?Appellants’ Counsel submitted that page 139 of the record is indicative that the appellants filed their Amended Reply to the Defendants/Respondents’ Statement of Defence and Defence to Counter Claim separately on the 25th February, 2013. That in order to prove
the averment of the Claimants/Appellants’ Reply and Defence to the Defendants Respondents statement of defence and counter-claim, the 3rd Claimant/Appellant from paragraphs 52 to 68 of his witness statement on oath dated 25th February, 2013 gave his evidence on oath in respect of the facts pleaded as reply to the Defendants statement of defence and as a defence to the Defendants counter claim (pages 139 to 141 and 153 to 155 of the record).
Appellants Counsel submitted that it was the evidence on oath of the Claimants filed in Court on the 25th day of February, 2013 that the Claimants/Appellants witness used to prove the evidence of the facts contained in their 4th Further Amended Statement of Claim dated 16th July, 2013 (pages 252 to 259 of the records) and the 3rd Claimant/appellant make further additional witness statement on oath only to accommodate the plan of the Warehouse which was admitted in evidence as Exhibit.
He submitted that it is evident that at the time the Appellants applied to amend their 3rd further amended statement of claim, the Appellants did not apply to amend their already amended reply to the defendants/Respondents’ statement of
defence and defence to the Defendant counter-claim.
?However, that the Claimants Appellants dully filed their reply to the Defendants’ statement of defence as well as defence to the Defendants?counter claim independently from the claimants’ 3rd amended statement of claim on the 25th February ,2013. It implies therefore that the trial Judge erroneously held that:
“In respect of the above reliefs sought by the counter Claimants, the original Claimant never filed any defence thereto except the 3rd amended statement of claim which has been subsumed by the fourth amended statement of claim.”
Appellants Counsel urged us to hold that the refusal of the lower Court to consider the pleadings of the Claimants/Appellants in response to their reply to the Defendants’ statement of defence and defence to counter claim led to the perverse reasoning that led to the judgment in favour of the Defendants/Respondents.
The response to Appellants issue two could be found in the Respondents’ treatment also of issue two.
?Learned Counsel for the Respondents submitted that it is noteworthy that after the 4th amendment of the Appellants statement of claim, the
Respondents filed 1st Further Joint Amended Statement of Defence and Amended Counter-Claim in which the Appellants neglected, omitted and failed to further amend their reply to statement of defence and defence to counter-claim.
He submitted that the Appellants process as contained in pages 126 – 129, 139 – 142 of the record is not all in force with the Respondents amended statement of defence and amended counter claim as contained in pages 264 – 270 of the record.
?He argued that averment in a pleading must be met frontally and categorically and that the failure of the Appellants to further amend their reply to the 1st further joint amended statement of defence and amended counter claim is fatal to their case and constitute an admission of the facts therein. He submitted that it is the law that where a pleading is defective or bereft of essential averments, it could constitute a definite guarantee for the failure of the party who presents the pleadings for he cannot lead evidence on any fact he did not aver in pleadings.
On this, Counsel referred to the case of Mobil Producing (Nig.) Unlimited V. Asuah (2002) FWLR (Pt. 107) 1196 at 1128.
From the foregoing, Respondents Counsel submitted that it is crystal clear that virtually all the paragraphs contained in the Appellants’ reply to statement of defence and defence to counter-claim are not reacting to the Respondent’s first further joint amended statement of defence and amended counter claim.
He argued that it is not the duty of the trial Court, by way of conjecture, fill the gap and decipher what were not chronologically pleaded in reaction to the Respondents’ pleadings. To do this, said Counsel will amount to helping or making a case for the Appellants.
He referred on this to the cases of Adebanjo V. Brown (1990) 3 NWLR (Pt. 141) 661; G. S. Pascuto V. Adecentro Nig, Ltd. (1997) 11 NWLR (Pt. 529) 467.
He further submitted that the trial Court was right not to have made use of the evidence in support of the reply to statement of defence and defence to counter claim as contained on the Appellants witness statement on oath dated 25/02/2013 in paragraphs 52 – 67 at pages 153 – 155 of the record. As it is the law that where there is evidence but there is no supporting averments, it is worthless evidence which must go to no issue and
should be rejected, and if admitted should be expunged from the record.
He referred to the cases of Emegokwue V. Okadigbo (1973) 4 SC 113 at 117; Akande V. Adisa (2012) All FWLR (Pt. 635) 250.
The actual event leading to the complaint of Appellants in their issue 2 is not a case of abandonment of the Appellants’?reply which predated the Respondents’ 1st further joint amended statement of defence and defence to counter claim the failure of the Appellants to amend their reply after the filing of the last process of the Respondents led to a situation whereby the paragraphs of the Appellants reply were no longer chronologically reacting or responding to the respondents process.
The learned trial Judge made allusion to this fact when he observed at page 368 of the record that:
“In respect of above reliefs sought by the counter-claimants, the original Claimants never filed any defence thereto except the 3rd amended statement of claim which has been subsumed by the fourth amended statement of claim —-.”
?In con, the learned trial Judge was not wrong to have made the above observation. This is because indeed on a careful perusal of the
appellants reply vis-a-vis the Respondents 1st Further joint amended statement of defence and defence to amended counter claim, the paragraphs of the Appellants reply were no longer chronologically responding to the averments in the Respondents’ process. Yet, as a matter of law, every pleading must contain a statement of all material facts, concise and unambiguous, on which a party bases his claim or defence. Each fact in logical sequence will be in numbered paragraph stating clearly without ambiguity what the issue is that must be met by the other side.
See: Babatunde Adisa Thanni V. Yahava (1977) 2 SC 89 at 177; Sodipo V. Lemminkalnen (1985) 2 NWLR (pt. 8) 547; Salami V. Oke (1987) 4 NWLR (Pt. 63) 1.
The lesson to be learnt from the Appellants attitude here is that Counsel should always carefully reflect on the need to amend their processes when the other party has made any amendments to their processes. This is because, pleadings must at all time react in chronological content to one another. Ubanezonu JCA captured the situation in the case of Benedict Ojukwu V. Louisa Ojukwu & Anor (2001) FWLR (Pt. 41) 1948 at 1972 – 1973 where he said “the
stormy waters in which the Appellant got himself in this case is largely due to the careless pleading of his Counsel. Counsel should be more careful in setting pleadings and not plead with an air of careless abandon.”
In the instant case however, I dare say that the above quoted observation by the learned trial Judge to which the learned Counsel for the Appellants had made such heavy weather did not in fact occasion any miscarriage of justice in the circumstances of the case.
This is because his decision was eventually and actually based on the admitted and uncontradicted evidence on record which did not affect one way or the other the failure of the Appellants to amend their extant reply. Thus at pages 369 – 370 of the record; the trial Court soon after the alleged observation noted thus;
“Be that as it may, given the evidence before the Court, can it be safely said that a contract exists between 1st – 11th Defendants and 13th Defendant? —–.”
After analyzing the evidence on record and taken a critical look at Exhibit DWA, the trial Court concluded as follows:
“Flowing, from the above analysis of the facts and evidence before the
Court, I hold that the contract of sale of the Warehouse in dispute was completed between 1st – 11th Defendants and 13th Defendant respectively – having satisfied all the five recognized features of a valid contract which is offer, acceptance, intention to create legal relationship, capacity to contract and what is more consideration was furnished, I hold that the Counter Claimants are entitled to judgment——-.”
Clearly therefore, the judgment of the trial Court could not be held to be perverse on account of its observation at page 369 of the record that “—- the original Claimants never filed any defence thereto except ——.”
Issue Two is resolved against the Appellants.
The grouse of the Appellants under issue three is that Exhibit DWA which the trial Court heavily relied on in finding for the counter claimant was not duly executed. He submitted that in every contract of sale of property such as the sale of the Warehouse in dispute, payment of the purchase price comes before the execution of the document of sale. That, logically too, it is improper for document of sale to pre-date date of payment. But, that in the instant case, Exhibits
DWB and C.G were dated 7th July 2006 while Exhibit DWA was dated 5th July, 2006.
Counsel submitted that there is no other name with which the conduct of the Respondents be described except fraud. Exhibits DWA is fraudulent while Exhibits DWB conflict with Exhibits DWG and DWA.
He argued that the law is clear that there is a presumption that the date a document carries is the date it was made. He referred to the case of Arab Contractors (O.A.O) Nigeria Ltd V. Umanah (2013) All FWLR (Pt. 683) 1977 at 1995.
He submitted that there was no valid or subsisting contract between the 1st to 11th Respondents and the 12th Respondent as the contract alluded to by the trial Court below and the Exhibit DWA which the Court made heavy weather of was an afterthought which was a fraud against Exhibit CK.?
Still on issue three, Appellants Counsel submitted that the trial Court while giving judgment against the Claimants/Appellants acted on a letter dated 24th November 2011 some six years after the suit was instituted against the Defendants/Respondents by giving an order to the effect that the Claimants from the 21st day of February 2007 to 20th day of
February,?2012, the Claimants should pay the sum of N3,600,000.00 (Three Million, Six Hundred Thousand Naira Only) at the rate of N600,00.00 (Six Hundred Thousand Naira Only) per annum and mesne profit thereafter to the 12th Respondent until possession of the Warehouse is delivered. He submitted that based on the above, the trial Court acted malafide and urged us to review the exhibits and ascribe proper meanings to them.
Respondents’ reaction to Appellants’ Issue Three would still be found in their treatment of Issue Two. They submitted that the Appellants did not raise the issue of fraud in their pleading at the trial Court and cannot therefore raise the issue of fraud on appeal.
It is the law, according to the Learned Counsel for the Respondents that charges of fraud or commission of other crimes or any fact showing illegality must be specifically pleaded. That a party alleging fraud is not only required to make the allegation in his pleading but must set out particulars of fact establishing the alleged fraud so that the other party could be prepared to meet the allegations.
He referred to the cases of Babatunde V. Bank of the North Ltd. (2012)
All FWLR (Pt. 608) 798 at 832; Aprofim Engr Const (Nig.) Ltd V. Bigouret (2012) All FWLR (Pt. 622) 1740.
He submitted that it is clear that there are no averments in the Appellants pleadings at the lower Court where issue of fraud was specifically pleaded. Furthermore, that a point that is not made an issue in the course of trial cannot be raised in an appellate Court unless with the leave of Court. Therefore, said Counsel, the argument and submission on the issue of fraud raised by Appellants Counsel in respect of Exhibit DWA and the contract of sale of the Warehouse between the Respondents family and the 12th Respondent as contained in the issue three of the appellants brief should be discountenanced.
Truly and as suggested by the Learned Counsel for the Respondents, an allegation of fraud must be specifically pleaded and proved. See Otukpo V. John (2012) 38 WRN 1 at 29.
In the instant case, there are no averments in the pleadings of the Appellants indicating fraud in particular in relation to Exhibit DWA to be considered by the trial Court.
Also, there was no decision on any issue of fraud in the judgment of the Court below and where a
question which was not raised at the lower Court is to be raised for the first time in the Appellate Court, leave of Court must be sought and granted.
See: Agedah V. Nkwocha (2002) 9 NWLR (Pt. 771) 113; Ohochukwu V A. G. Rivers State (2002) All FWLR (Pt. 626) 412 at 431 – 432.
The simple answer to the second leg of Appellants’ Issue Three is that the learned trial Judge rightly acted on a letter dated 24/11/2011 in the consideration of the respondents counter claimants’ case. This is because the last process by way of statement of defence and counter-claim by the Respondents is dated 29th day of July, 2013.
It goes without saying that a counter-claim is for all intents and purposes, a separate, independent and distinct action and a counter claimant, like all other Plaintiffs, must prove his claim against the person being counter claimed before he can obtain judgment on the counter claim.
See: R. Benkay (Nig.) Ltd V. Cadbury (Nig.) Plc (2006) 6 NWLR (Pt. 976) 338; Ogbonna V. A-G, Imo State (1992) 1 NWLR (Pt. 220) 647; Obmiami Brick and Stone (Nig.) Ltd V. A.C.B. Ltd (1992) 3 NWLR (Pt 229) 260; Dabup V. Kolo (1993) 9 NWLR (Pt. 317) 254; Jeric
(Nig.) Ltd. V. UBN Plc, (2000) 12 SC (pt. 11) 133; Musa V Yusuf (2006) 6 NWLR (Pt. 977) 454.
Accordingly, Issue Three is resolved against the Appellants.
On issue four, Appellants’ Counsel submitted that it is within the power of every Court and in fact its duty and obligation to make consequential orders in the interest of justice, even when that particular order was not specifically asked for. He referred to the cases Eyigebe V. Iyayi (2013) All FWLR (Pt. 703) 1901 at 1918 to 1919; Aroyinkeye V Awoyinka (2005) All FWLR (Pt. 240) 1 at 29 and EFCC V. Odigie (2012) All FWLR (Pt. 692) 1797 at 1818.
In the instant case, Appellants’ Counsel claimed to have been persuaded by the reasoning of the Court to the effect that:
“I am convinced that the evidence established renovations” but that the trial Court failed to grant consequential order when it held that:
“I have read the reliefs over and over again, much as I am convinced that the evidence established renovations, they have not asked for same. It will be impossible for the Court to grant what is not prayed for as a Court of law is not a Father Christmas.”
He urged us to reverse the
decision of the lower Court on this issue. He referred to the case of Momah v. VAB Petroleum Inc. (2000) FWLR (Pt. 5) 806 at 819 and submitted that the Court had jurisdiction to make such consequential order on the reimbursement of the expenses incurred by the Appellants on the respondents Warehouse.
Learned Counsel for the Respondents submitted that the Appellants did not ask for the reimbursement of the sum of N829,000.00 in their reliefs before the Court. He submitted that failure to specifically ask for reimbursement in the relief before the Court disentitles the Appellants to such claim as the Court does not make it a habit to give to a party what has not been asked for.
On Issue Four, I agree with the Learned Counsel for the Respondents and the trial Court that a Court should not award that which is not claimed by a party as the Court is not a charitable organization and the judge who personified same is not a father Christmas. Hence, the legal maxim: judex non veddit plus quam petens ipse requirit meaning – a judge does not give more than that for which the Plaintiff asks.
See Stowe V. Benstowe (2012) All FWLR (Pt. 620) 1245 at 1261;
Union Beverages V. Owolabi (1988) 1 NWLR (Pt. 68) 128 at 129; Onah V. Okon (2012) All FWLR (Pt. 647) 703 at 723.
In the instant case and in-spite of the evidence on record that the Appellants carried out some renovations, the trial Court could not have awarded any consequential order on the reimbursement on renovations. First, because the sum of N829,000.00 said to be expended by the Appellants was not with the consent of the Respondents and was not agreeable to them. Secondly and equally importantly, because there was no such prayer for reimbursement in the Appellants’ relief.
Issue Four is resolved against the Appellants.
Having resolved the four (4) issues in this appeal against the Appellants, the appeal lacks merit and it is accordingly dismissed.
N30,000.00 costs is awarded to the Respondents in this appeal.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance the draft of the judgment just delivered by my learned brother Mojeed Adekunle Owoade, JCA. He has dealt exhaustively with the issues for determination in the
appeal. I adopt the reasoning and conclusions in the said judgment as mine.
The four issues having been resolved in favour of the Respondent, I too dismiss the appeal.
I abide by the order as to costs.
Appearances
Kunle AdetowuboFor Appellant
AND
Prince A. A. Ojopagogo with him, Mrs. Chuka TemidayoFor Respondent
