ALH. UMAR YUSUF ASAKA v. ALH. SALEH RAMINKURA & ORS (2014)

ALH. UMAR YUSUF ASAKA v. ALH. SALEH RAMINKURA & ORS

(2014)LCN/6784(CA)

In The Court of Appeal of Nigeria

On Thursday, the 23rd day of January, 2014

CA/K/249/2007

RATIO

CONTRACT: BINDINGNESS OF A CONTRACT ENTERED INTO VOLUNTARILY

The law is that where parties have entered into a contract voluntarily and there is nothing to show that same was obtained by fraud, mistake, deception or misrepresentation, they are bound by the provisions or terms of the contract or agreement. See the case of A.G. RIVERS VS. A.G. AKWA IBOM (2011) 8 NWLR (Pt.1248) 31; EBLA CONST. LTD. VS. COSTAIN (WA) PLC. (2011) 6 NWLR (Pt. 1242) 110; AGROVET SINCHO PHARM. LTD. VS. ESTATE OF ENGR. DAHIRU (supra) at 33 – 34. Per ITA GEORGE MBABA, J.C.A

WHETHER TO COMMIT HIS PRINCIPAL, AN AGENT MUST ACT WITHIN THE SCOPE OF HIS AUTHORITY

The law is that an agent must act within the scope of his authority, to be able to commit his principal. See the case of OKWEJIMINOR VS. GBAKEJI [2008] ALL FWLR [PT.409] 405 AT 488; ABINA VS. FARHAT [1983] 14 NLR 17; OKOJEJIE VS. OKUPE [1039] 15 NLR 28; UNIVERSAL VULCANIZATION NIG. CO. LTD. VS. IJESHA UNITED TRADING & TRANSPORT CO. LTD. [1992] 9 NWLR [PT. 266] 388; JOHN OYEGUN VS. LUCKY IGBINEDION [1992] 2 NWLR [PT. 226] 747; AGROVET SINCHO PHARM LTD. VS. ESTATE OF ENGR DAHIRU (SUPRA) at 40-41. Per ITA GEORGE MBABA, J.C.A

WHETHER PARTIES CAN RAISE AND CANVASS ISSUES NOT PLEADED

JUSTICES

DALHATU ADAMU Justice of The Court of Appeal of Nigeria

ABDU ABOKI Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

Between

ALH. UMAR YUSUF ASAKA Appellant(s)

AND

ALH. SALEH RAMINKURA & ORS Respondent(s)

ITA GEORGE MBABA, J.C.A.(Delivering the Leading Judgment): This is an appeal against the final judgment of Kaduna State High Court in suit No. KDH/KAD/114/2005, delivered by Hon. Justice T. Zailani on 22/5/2006, wherein the learned trial Court dismissed the claims of the Plaintiff (Appellant herein) and granted the Counter-claim of the Defendants (1st Respondent herein), in part.

Appellant’s claim in the Court below, as per the writ of summons, filed on 17/2/2005 and the statement of claim was for:

“(a) A declaration that the contract between the plaintiff and the first Defendant for the sale of the property known called and described as plot No. 3 Fabson close, Tudun Wada, Kaduna is still valid and subsisting.

(b) A declaration that the 1st Defendant cannot rescind the contract for the sale of property known, called and described as Plot No. 3 Fabson Close, Tudun Wada, Kaduna he entered into with the plaintiff while the plaintiff has sufficiently paid for the said property and/or while the payment for the said property is strictly observed by the plaintiff.

(c) A declaration that the plaintiff has paid a total sum of N1,850,000.00 to the 1st Defendant through his agents, that is 2nd and 3rd Defendants.

(d) An order of specific performance of the contract of sale between the plaintiff and the 1st Defendant.

(e) An order compelling the 1st Defendant to collect the balance of the purchase price in the sum of N400,000.00.” (See pages 2 and 5 of the Records)

The 1st Defendant filed a defence and a Counter-claim, claiming as follows:

“(1) A declaration that the purported sale of the landed property at No. 3 Fabson Close, Tudun Wada, Kaduna by the 1st Defendant to the plaintiff is null and void for want of financial ability on the part of the plaintiff to effect the payment of the consideration.

(2) An order setting aside the purported sale of the said landed property at No. 3 Fabson Close, Tudun Wada, Kaduna

(3) A declaration that the plaintiff is still a tenant of the 1st Defendant in respect of the landed property situate and being at No.3 Fabson Close, Tudun Wada, Kaduna, and therefore liable to pay the agreed rent.

(4) An order compelling the plaintiff, as the contract has failed, to collect the deposit of Five Hundred Thousand Naira (N500,000.00) only he earlier paid less than the sum of N240,000.00 as the rents for the years 2003/2004 and 2004/2005 which rent is always paid in advance

(5) An order compelling the plaintiff to be paying the 1st Defendant yearly the agreed rent of N120,000.00 per annum until the tenancy is determined by either of the parties.”

A brief facts of the case at the Lower Court shows that the 1st Respondent initially rented the house at No.3 Fabson Close, Tudun Wada, Kaduna to the Appellant, through his agent, Alhaji Yahaya and later the 2nd and 3rd Respondents. That was from November 2000 (a yearly tenancy). Sometime in September, 2003, the 1st Defendant decided to sell the property and notified the Appellant of the intention.

The price of N2,250,000.00 was agreed as consideration for the purchase of the property and Appellant paid deposit of N55,000.00 and later N450,000.00and agreed to pay the balance of the purchase price on 24/10/2003, failing which the 1st Respondent would be at liberty to sell the same to a 3rd party. See Exhibit D1.

The sale Agreement was Exhibit P2. By Exhibit P1, however, the 2nd and 3rd Respondents accepted further payments of the purchase price after the date line of 24/10/2003 from the Appellant, such that by 17/2/2004, Appellant had made substantial part payment of N1,850.000.00 for the property through the 2nd and 3rd Respondents. When he tendered the balance of N400,000.00, the 1st Respondent rejected same on the ground that time for the completion of payment as per Exhibit D1, had lapsed and the 1st Respondent had been discharged of the obligation to go ahead with the sale of the property to the Appellant; that the sale agreement stood rescinded. He offered to refund the N500,000.00, part payment which he acknowledged, to the Appellant, saying that the 2nd and 3rd Respondents did not have his authority to receive the sum of N1,350,000.00, paid by the Appellant. Appellant maintained that the entire payments were made by him to 1st Respondent, through his agents 2nd and 3rd Respondents and that the 2nd and 3rd Respondents were aware of Exhibit D1, when they went ahead to collect the further part payments from him, outside the 24/10/2003.

The 1st Respondent had filed an action in the Upper Sharia Court, Kaduna, to seek the invalidation of the purported sale of the property, when it became clear the Appellant could not complete the payment as stipulated in Exhibit D1. Appellant challenged the jurisdiction of the Upper Sharia Court, successful and immediately brought this action at the High Court to enforce the contract of sale.
At the end of the trial, in a considered judgment, the learned trial Court dismissed the Appellant’s claim and granted the counter-claim, in part.
Appellant filed this appeal on 25/10/2011, after obtaining the leave of this Court on 18/10/2011 to appeal against the decision of the trial Court. He raised 5 grounds of Appeal, as per the Notice of Appeal.

Appellant filed his brief of arguments on 24/11/2011 and distilled two issues for determination namely:

(1) “Whether the conduct of 2nd and 3rd Respondents in their undoubted capacities as agents of the 1st Respondent by way of receipt of installmental payments from the Appellant after the period stipulated in Exhibit D1, can be attributed/ascribed to the 1st Respondent so as to amount to waiver of the time line stipulated for the payment of the balance of purchase price by the Appellant? (Grounds 1 & 4)

(2) Whether having regard to the receipt of further installmental payments of the purchase price of the disputed property by the 2nd and 3rd Respondents from the Appellant and on behalf of the 1st Respondent, after the period stated in Exhibit D1, the contract for the sale of the property as captured in Exhibit P2 can be said to be subsisting to entitle Appellant to a decree of specific performance of same? (Grounds 2 & 3).”

The 1st and 3rd Respondents filed their brief of 28/12/2011 and formulated 2 issues for determination:

(1) “Whether the conduct of the 2nd and 3rd Respondents in their capacities as agents of the 1st Respondent in receiving the alleged installmental payments of the purchase price of the landed property at No. 3 Fabson Close, Tudun Wada Kaduna from the Appellant after the expiration of the period stipulated in Exhibit D1 can be said to amount to a waiver of the time line stipulated for the payment of the balance of the purchase price by the Appellant?

(2) Whether there was in existence any contract of sale of the disputed property between the 1st Respondent and the Appellant, in view of the installmental payments effected by the Appellant to the 2nd and 3rd Respondents as the then agents of the 1st Respondent after the expiration of the period stipulated in Exhibit D1 to entitle the Appellant to a decree of specific performance in this matter?”

The 2nd Respondent filed his Brief on 6/9/2013 and also distilled two issues for determination, namely:

“(1) Whether the 1st Respondent is not caught by the doctrine of waiver in view of the conduct of the 2nd and 3rd Respondents in receiving installmental payments of the purchase price in respect of the property in dispute from the Appellant after the period stipulated in Exhibit D1 had expired.

(2) Whether having regard to the receipt of further installmental payments of the purchase price of the disputed property issued by 2nd and 3rd respondents to the Appellant after the period stated in Exhibit D1, the contract of sale of the said property evidenced in Exhibit P2 can still be said to be subsisting or decree of specific performance in respect of the said property.”

When this Appeal was heard on 27/11/2013, the Counsel on all sides, on behalf of the parties, adopted their briefs and urged us, accordingly.

Arguing issue 1, learned Counsel for the Appellant, O.I. Habeeb Esq., called on us to first of all determine the status and relationship of 2nd and 3rd Respondents with the 1st Respondent in respect of the property in dispute; he submitted that it was without dispute that the 2nd and 3rd Respondents were agents of 1st Respondent in relation to the sale of the property; that evidence abounds on this and the trial Court also buttressed this fact. He referred us to pages 69 and 70 (evidence of DW1) where 1st Respondent acknowledged the 2nd and 3rd Respondents as his agents of all his houses, whom he asked to look for buyer of No.3 Fabson Close, and offer the house to the Appellant, being its occupier; that the Agreement of sale (Exhibit P2) was signed by his said Agents and the Appellant, while his son signed on his (1st Respondent’s) behalf. Counsel added that under Cross-examination, on page 76, the 1st Respondent conceded that:

(a) The payment made by Appellant was receipted by the 2nd and 3rd Respondents.

(b) Exhibit P1, which are the receipts of payment are in the names of Shaba Investment (business name of the Agents of the 1st Respondent).

He referred to the findings of the Court on page 74, on the role of the 2nd and 3rd Respondents in the negotiation and sale of the property as agents of 1st Respondent.

Counsel argued that both Exhibit P1 (receipts of payment) and Exhibit D1 (agreement containing that time line) were drafted on the letter-headed paper of Shaba Investments, business name of 2nd and 3rd Respondents. He submitted that the 2nd and 3rd Respondents were agents of the 1st Respondent and acted in that capacity in the transaction, that it suffices to relate the conduct of the 2nd and 3rd Respondents in receiving further payments of the purchase price from Appellant after the period stipulated in Exhibit D1 to that agency relationship.

Counsel conceded that Appellant was to pay the balance of the purchase price on 24/10/2003, failing which 1st Respondent was at liberty to sell the property to any person. But he argued that the conduct of the 2nd and 3rd Respondents in accepting the further payments from Appellant, implied that the time line in Exhibit D1 had been waived and relaxed; that the said conduct was binding on the 1st Respondent as their principal. He relied on the case of ANYAORAH VS. ANYAORAH (2001) 7 NWLR (Pt.711) 158 at 180, on who is an agent. And on the binding effect of the conduct of the 2nd and 3rd Respondents. Counsel relied on the case of AMADUIME VS. IBOK (2006) 6 NWLR (Pt. 975) 158 at 177.
On waiver, Counsel relied on the case of ODUA INVESTMENT CO. LTD VS. TALABI (1997) 10 NWLR (Pt. 523) 1 at 51, where the Supreme Court, per Idigbe JSC defined ‘waiver’ as:

“… the intentional and voluntary surrender or relinquishment of a known privilege and or right, it therefore implies a dispensation or abandonment by the party waiving of a right or privilege, which at his option, he could have insisted.”

He also relied on EZOMO VS. NNB LPC. (2006) 14 NWLR (Pt.1000) 624 at 655 – 656 and on the section 169 of the Evidence Act 2011, the presumption of law on the conduct of the 2nd and 3rd Respondents in accepting further payments outside the time stipulated in Exhibit D1.

Counsel also relied on the case of TOTAL NIG. PLC. VS. AJAYI (2004) 3 NWLR (Pt.860) 270 at 295, wherein the Supreme Court decision in JOE IGAH VS. AMAKIRI & ORS (1976) 11 SC 1, was echoed, that:

“If a man in express terms or by conduct makes a representation to another of the existence of a state of facts which he intends to be acted upon, in a certain way, in the belief in the existence of such a state of facts to the damage of him who so believed and acted, the first is stopped from denying the existence of such a state of facts.”

Counsel, therefore, argued that the concepts of waiver and estoppel should be invoked in the circumstances, to prevent the 1st Respondent from escaping responsibility over the conduct of 2nd and 3rd Respondents, who acted inspite of the stipulation in Exhibit D1; that the conduct of 2nd and 3rd Respondents is deemed to be that of the 1st Respondent. He relied on the case of CAP PLC. VS. VITAL INV. LTD (2006) 6 NWLR (Pt. 976) 220 at 253.

On issue, 2 Counsel submitted that the total aggregate payments made by the Appellant for the property was N1,850,000.00, leaving a balance of N400,000.00; that if the submissions made under issue 1, is upheld, justice and equity of the case is for an order of specific performance of the contract, requiring an order for the Appellant to pay the balance of N400,000.00 to 1st Respondent to complete the price of the property, to complete the sale. He argued that that became more necessary as Appellant had already exercised right of ownership, being already in possession of the property.

Counsel submitted that all the essential ingredients of the contract for the sale of the property had been agreed upon and substantially performed by the Appellant directly or through his agents; that the fact that there is outstanding balance of N400,000.00 to be paid to 1st Respondent does not invalidate the contract, which is binding; that an order of specific performance is therefore necessary. He relied on the case of MINILODGE LTD. VS. NGEI (2009) 7 NWLR (Pt.1173) 254 at 284 – 285, where the Supreme Court held:

“A contract of sale exists where there is final and complete agreement of the parties on essential terms of the contract, namely, the parties to the contract, the property to be sold, the consideration for sale and the nature of the interest to be granted. Once there is agreement on these essential terms, a contract of sale of land or property is made and concluded. In contract for sale of property where part payment was paid, the law is that the contract for purchase has been concluded and is final, leaving the payment of the balance outstanding to be paid. The contract for the sale and purchase is absolute and complete for which each party can be in breach for non performance and for which an action can be maintained for specific performance …”

He also relied on OGBEIDO VS. OSIFO (2007) 3 NWLR (Pt. 1022) 423 at 442 – 443 and urged us to resolve the issues in Appellant’s favour and allow the appeal, set aside the decision of the trial Court and give judgment to the Appellant, as per his claim at the Court below.

Counsel for 1st and 2nd Respondents, Chief Chris A. Ekhasemomhe, on issue 1 submitted that waiver, as equitable remedy was never pleaded, specifically, by the Appellant, nor facts leading to any such inference that Appellant was going to rely on that remedy; that the case having been fought on pleadings, the parties are bound by their pleadings. He relied on the case of ALLIED BANKS NIG. LTD. VS. JONAS AKUBUEZE (1997) 6 SCNJ 116 at 130; NIGERIAN BANK FOR COMMERCE & INDUSTRY VS. INTEGRATED GAS (NIG.) LTD. (2008) VOL. 3 MJSC 4O at 75 – 76.

Apart from failure to plead the equitable remedy of waiver, Counsel submitted that the issue of waiver was never canvassed before the Lower Court and no pronouncement was made on it by the trial Court. Thus, this Court can not permit an issue, not raised before the Lower Court, to be raised on appeal, as it is desirable to have the opinion of the trial Court from which the appeal emanates on such point. He relied on the case of NASCO MANAGEMENT SERVICES LTD VS. A.N. AMAKU TRANSPORT LTD; (1999) 1 NWLR (Pt. 588) 576; SKEN CONSULT NIG. LTD. VS. UKEY (1981) 1 SC 6 at 18; OWEMA BANK PLC. VS. OLATUNJI (2002) FWLR (Pt.124) 529 at 606 and urged us to discountenance the issue of waiver.

Counsel further submitted that the transaction that gave rise to the case was in writing, as per Exhibit P2 (the first agreement) and Exhibit D1, reduced subsequently and duly executed by Appellant and the 1st and 2nd Respondents. He referred us to page 69 of the Records where the 1st Respondent testified to explain what led to the making of Exhibit D1.

“The plaintiff was to bring the balance of the purchase price. He only brought N445,000,00 making the total of N500,000.00. I refused to take the money. I requested payment at once. The plaintiff then promised to pay the money in writing on 15/2/2003. I can recognize the agreement. My name and signature are there on it. The plaintiff and other Defendants also signed. This is the agreement.”

Exhibit D1 was then tendered and admitted which stated as follows:

“I ALHAJI UMAR ASHAKA has paid the sum of Five Hundred Thousand Naira (N500,000.00) to ALHAJI SALE RAMINKURA on the sale of his house to me at No. 3 Fabson Close, Tudun Wada, and promise to pay the remaining balance on the 24th October, 2003, failure to do so, the house should be sold to another person. The total money is N2.250Million.”

Counsel submitted that that letter of agreement was signed by the parties and their respective witnesses; that parties are bound by the terms of agreement they freely enter into. He relied on the case of SERGIUS ONYEKWELU VS. ELF PETROLEUM NIG. LTD. (2009) ALL FWLR (Pt. 469) 426 at 438.

Counsel submitted that Exhibit D1 therefore made the time for the payment of the purchase price essence of the contract; that evidence abound that Appellant did not honour the terms of the contract in Exhibit D1 by paying the balance of the purchase price as at 24/10/2003; that the trial Court made findings to that effect on page 79 of the Records:

“When they executed D1 they intended to be and are definitely bound by D1. Whatever mode of payment that can be implied in P2 stops to be relevant and effective. The mode of payment in D1 becomes relevant and effective. The failure by the plaintiff to adhere to the mode of payment puts him in breach of agreement. The remedy for the breach is specifically provided by the parties. That is the property can be sold to another person.”

Counsel submitted that that finding has not been appealed against and so was binding and subsisting. He relied on the case of IYOHO VS. EFFIONG (2007) ALL FWLR (Pt.374) 204 at 223; MOBIL PRODUCING (NIG.) UNLTD. & ANOR VS. UDO TOM UDO (2009) ALL FWLR (Pt.482) 1177 at 1201.

Counsel added that Exhibit D1 did not admit of instamental payments for the property, but that Exhibit P1 showed 6 receipts as instamental payments, which was a variation of the terms agreed in Exhibit D1. He asserted that where the parties have embodied the terms of their contract in a written document, extrinsic evidence is not admissible to add to, vary or subtract from, or contradict the terms of the written instrument DELTA STATE AGRICULTURAL DEVELOPMENT PROGRAMME, IBUSA & ORS VS. MIKE I. OFONYE (2008) ALL FWLR (Pt.402) 1068 at 1088.

Counsel submitted that the conduct of the 2nd and 3rd Respondents in receiving the said instamental payments in Exhibit P1 amounted to variation of the terms in Exhibit D1, and contrary to the principles stated in section 128(1) of the Evidence Act 2011 (formally 132(1) of the Evidence Act, LFRN 2009; that the 1st Respondent has therefore not waived the time line stipulated in Exhibit D1; that Exhibit D1 being a written instrument can only be varied by another written instrument, duly signed by all the parties that signed the Exhibit D1 and not by the conduct of the 2nd and 3rd Respondents, acting in agreement with the Appellant. He urged us to bear in mind the principle of sanctity of contract reached by the parties and relied on the case of AFRIBANK NIG. PLC. VS. AMINU ISHOLA INVESTMENT LTD. (2002) 7 NWLR (Pt. 765) 40 at 75; UBA PLC & ANOR. VS. LAWAL (2008) ALL FWLR (Pt.434) 1548 at 1562.

He added that upon the breach of the Exhibit D1, the property was surrendered to the 1st Respondent, and asserted that the issue of waiver was inapplicable as the same was never pleaded by the Appellant, the case being one fought on pleadings. Counsel also referred us to the evidence of the 2nd Respondent on page 71 of the Records, to debunk the claim of waiver, where he said, as DW2:

“The plaintiff contracted us and asked us to beg the 1st Respondent and the 1st Respondent refused. The plaintiff then begged me to keep the money for him. He paid up to N1,350,000.00 …when he got the complete balance, he asked me to meet the 1st Respondent And persuade him to take the balance. The 1st Defendant refused to take it…. I collected the money, because the plaintiff persuaded me to do it.”

That, counsel submitted, shows that the 2nd and 3rd Respondents acted outside the Exhibit D1 and outside the scope of their authority; that the same cannot amount to waiver on the part of the 1st Respondent; that DW1 further stated on page 71 of the Records:

“I did not act on the instruction of the 1st Respondent through out the transaction. I stopped from the time he wrote the 2nd agreement.”

Thus, Counsel submitted that any other acts or conduct of the 2nd and 3rd Respondents, after the execution of the Exhibit D1 (the second agreement), upon the persuasion of the Appellant were done at the behest of the Appellant, not of the 1st Respondent; that agent must act within the scope of his authority, for the principal to be bound by his act. He relied on the case of Edward Okwejiminor Vs. G. Gbakeji & Anor. [2008] ALL FWLR [Pt. 409] 405 at 448.

Counsel added that since, by the authority of Exhibit D1, the time line to pay the balance of the purchase price was 24/10/03, the authority of agents to collect the balance did not go beyond that date; that since that was within the knowledge of both the purchaser and the agents, any act done by the agent outside the said written authority does not bind the principal. He relied on Abina Vs. Farhat [1938] 14 NLR 17; Okolejie Vs. Okupe [1939] 15 NLR 28.

On issue 2, Counsel submitted that Exhibit D1 made the time of payment of the balance essence of the contract, that is, 24/10/03; that where a contract is executory on both sides, as the case at hand, and neither has performed the whole of his obligation under the contract, it can be rescinded by mutual agreement; that exhibit D1 provided this mutual agreements as Appellant agreed that if he could not pay the remaining balance on 24/10/03, the house should be sold to another person; that they were bound by the document. He relied on Sylvester D,E. Egbase vs. Augustine O. Oriageghan [1985] NWLR [Pt. 10] 884 at 898; Igbinosa Vs. Cole E. Aiyobagbiegbe [1969] ALL NLR 95.

Counsel submitted that a contract which is rescinded is completely discharged and cannot be revived by subsequent payment of money or conduct of agents involved in the matter. He relied on Chitty on Contract, Vol. 1-646 paragraphs 1369 – 1370. Thus, counsel submitted, that the amounts subsequently paid by Appellant to the 2nd and 3rd Respondents (Exhibit P1) cannot revive the contract for the sale of the property as the contract had been mutually rescinded and no order of specific performance could be made by the Court.

Counsel submitted that a contract is always construed strictly in the light of the essential and material terms agreed upon by the parties; that the court would not allow a party to dribble the other party by doing any act inconsistent with the terms of the contract and later come up to place reliance on those inconsistent acts to enforce the contract; that a party who seeks specific performance of a contract must depict evidence of compliance with the terms of the contract. He relied on the case of Best Nigeria Ltd. Vs. Blackwood Hodge Nig. Ltd. & Ors [2011] LL FWLR [Pt. 573] 1955 at 1968; Coker Vs. Ajewole [1976] 98 10 SC 17 at 29.
Counsel added that when a party is in breach of a material terms the same gives the aggrieved party a leeway or an excuse for non-performance of his own side of the bargain, and is entitled to treat the contract as distinguished or at an end; that since the Appellant failed to comply with the Exhibit D1, the 1st Respondent was right to take the remedy provided in the said exhibit; that the learned trial judge was right in dismissing the claims of the appellant. He added that the case of Minilodge Ltd Vs. NGE I [2009] 7 NWLR [Pt. 1173] 254 did not apply to this case.
He urged us to resolve the Issues against the Appellant.

The 2nd Respondents’ Counsel, Dennis Usman Esq., also argued in line with the submissions by the 1st and 3rd Respondents.

On the bindingness of pleadings on the parties, he relied on the case of Aseimo vs. Amos [1973] 2 SC 57 at 68; Ezemba Vs. Ibeneme [2004] ALL FWLR [Pt. 223] 1786 at 1824 and said that the Appellant never pleaded waiver, and that the issue was not raised at the trial court and so cannot be introduced on appeal. He relied on Layland Nig. Ltd. Vs. Dizengolf W.A. Nig. Ltd. [1990] NWLR [Pt.134] 619; Owoniyi Vs. Omotosho [1961] ALL NLR 317 at 320.

On the failure of Appellant to comply with Exhibit D1, which was made essence of the contract having fixed 24/10/03 as last date of full payment for the property, Counsel for 2nd Respondent submitted that that constituted a breach, that brought the contract to an end, and so there was no more in existence a contract which the Appellant made installmental payments outside 24/10/03, as in Exhibit P1; that the Agents acted without authority when they collected the installmental payment after 24/10/03, and that could not affect the right of the principal. He relied on Universal Vulcanization Nig. Co. Ltd. Vs. Ijeska United Trading & Transport Coy. Ltd. [1992] 9 WNLR [Pt 266] 388; John Oyegun Vs. Lucky Igbinedion [1992] 2 NWLR [Pt. 226] 747.

He added that an agent acts for the benefit of his principal and not to his detriment; that the 2nd and 3rd Respondents were acting for the Appellant in collecting the money, after the 24/10/03, and not for the 1st Respondent.
He relied on UBN Plc. Vs. Uwa Printers (Nig) Ltd. [2011] ALL FWLR [Pt. 596] 578 at 588; that it is only when agent is authorized to do an act, which is not ex facie illegal, that the Principal assumes responsibility.
He relied on INEC & ORS. Vs. CAN & Ors. [2009] ALL FWLR [Pt.480] 732.

On Issue of specific performance, Counsel said that is a relief in equity; that one who seeks it must show that he has performed all the conditions precedent to the grant, that is, that he has fully performed his side of the contract. He relied on Gaji Vs. Paye [2003] FWLR [Pt. 163] 1 at 19. He said that Appellant admitted he defaulted, when he said on page 67 of the Records:

“To date I have not paid the total sum of the 1st Defendant.”

That Appellant failed, woefully, to keep the terms of Exhibit D1, to pay the balance on 24/10/03 as stipulated, thereby giving the liberty to the 1st Respondent to treat the contract as repudiated, as the breach discharged the 1st Respondent in the contract. He relied on the case of Mustapha Vs. Abubukar [2012] ALL FWLR [Pt. 651] 1519 at 1538.
He urged us to resolve the Issues against Appellant and dismiss the Appeal.

RESOLUTION OF ISSUES

I shall take the two Issues together, as the outcome of the resolution of the 1st tends to affects the 2nd.

Were the 2nd and 3rd Respondents acting as agents of the 1st Respondent when they collected the further instalmetal payments from the Appellant outside the time limit stipulated in Exhibit D1, to justify the call by the Appellant for order of specific performance of the contract in Exhibit P2?

The 2nd and 3rd Respondent were estate agents, operating in the name and style of SHABA INVESTMENT, and the 1st respondent admitted the two were his agents in respect of his buildings. And when he wanted to sell the property in contention, he asked his said agents to look for a buyer. He also gave the Appellant the right to buying the house, being already his (1st Respondents) tenant on the property.

Evidence shows that the negotiations for the sale of the house were done in the presence of the 2nd and 3rd Respondents and the parties agreed on the price N2,250,000.00. They also drafted the exhibit P2, the initial sale agreement, and collected the deposit N55,000.00 from the Appellant for the 1st Respondent. When they met to collect the full payment for the property, Appellant could not raise the total amount. He had only N445,000.00 and begged the 1st Respondent to collect it, that will make up the balance on 24/10/2003. This promise was reduced into writing on the letter-headed paper of the 2nd and 3rd Respondents’ business name (company).

I have already reproduced the content of Exhibit D1 in this judgment, which was made on 15/10/2003 and, which became the Principal document that spelt out the fundamental terms of the contract of sale of the property:

“I, Alhaji Umar Ashaka has (sic) paid the sum of Five Hundred Thousand Naira (N500,000.00) to Alhaji Sale Ramin Kura on the sales (sic) of his house to me at No, 3 Fabson Close, Tudun Wada, and Promise to pay the remaining balance on 24th October, 2003, failure to do so, the house should be sold to another person, The total money is N2.250M.”

Though this was written in form of a latter of admission of obligation by Appellant, to fulfill a condition for the sale the house, that is, completion of payment on a specified date (24/10/03), else the sale will lapse, or 1st Respondent would be at liberty to sell to another person – the document was signed by both the buyer and seller (Appellant and 1st Respondent) in the presence of witnesses (including the 2nd and 3rd Respondents).

Of course, the parties are in agreement that Appellant did not keep his promise to pay the full balance on 24/10/03, or at all. Evidence shows that the 2nd and 3rd Respondents, after 24/10/03, collected some instalmental payments from the Appellant, bringing the total payments to N1,850,000.00, part of which was as per Exhibit P1, carried on the letter head of the 2nd and 3rd respondents’ company.

The entire evidence of the Appellant, for the purpose of this case, is founded on the allegation that, though Appellant breached the Exhibit D1, by failing to pay the full balance on 24/10/03 stipulated therein, his subsequent instalmental payments of some money to the 2nd and 3rd Respondents, after 24/10/03, amounted to payment to the 1st Respondent for the property, as the collection of the subsequent payments by 2nd and 3rd Respondent, as agents of 1st Respondent, implied a waiver of the right by 1st Respondent to insist on the date line of 24/10/03 for completion of the payment; that the conduct of the 2nd and 3rd Respondents, as agents of the 1st Respondents, estopped the 1st Respondents from rescinding the contract, and called for specific performance; that the court should order the 1st Respondent to collect the N400,000.00, outstanding or the contract, to complete the contract sum of N2,250,000.00!

Strong, as that argument is, the Respondents submitted that the entire idea of waiver introduced by the Appellant in this appeal was not part of Appellants case as the Court below, as the same was neither pleaded, nor raised in evidence or address of counsel for the lower court to consider; that a party cannot, on appeal, make a case different from what they had at the court below.

Of course, the law is well settled on this, that in a case fought by pleading, the parties are bound by their pleadings and none of them can raise and canvass any issue not pleaded and, if he does, the evidence thereof goes to no issue. Allied Bank of Nig. Ltd. Vs. Akubueze [1997] 6 SC 116 at 130. This is more so in a case of waiver, as the same must be specifically pleaded and evidence adduced in support. See Nigerian Bank for Commerce and Industry Vs. Integrated Gas Nig. Ltd. [2008] Vol. 3 MJSC 40 at 76; Omonyi Vs. Omotosho [1961] ALL NLR 317 at 320.
I have read the statement of claim by the Appellant, studiously, as per pages 3-5 of the Records and I cannot see where the Appellant pleaded the alleged waiver of the 1st Respondent’s right to insist on the dateline, stipulated in Exhibit D1. In fact, Appellant had, tactfully, avoided saying anything about his undertaking under Exhibit D1 and he did not even plead the document, or acted as if it existed. Even when the evidence of the Respondents exposed the Exhibit D1, carrying the fundamental terms of the contract, Appellant still failed to lead any evidence to suggest any issue of waiver by 1st Respondent of his right to insist on the Exhibit D1! The same was never an issue at the Court below and so the trial court could not have formed any opinion on it.

It is therefore strange that the learned Counsel for Appellant decided to make the alleged waiver a major issue on appeal, as if the judgment of the trial Court was based on it. That was completely wrong, especially as the entire case of the Appellant, on appeal, appeared to be founded or based on that issue. The rules governing appeal are quite trite, that, both the ground of appeal and issue canvassed on appeal must be founded upon and rooted in the decision of the trial court, and that where the trial court never considered an issue, no appeal can be raised thereon appeal. See the case of UNILORIN VS. OLAWEPO [2012] 52 WRN 42; OJEMEN VS. MOMODU [1993] 1 NWLR [PT.323] 685; OSENI VS. BAJULU [2010] ALL FWLR [PT.511] 813; AND OSSAI VS. FRN [2012] LPELR 19669 [CA]; [2013] 13 WRN 87: Where we held:
“The law is trite that appeal – the ground(s) thereof and the Issue(s) there from must be founded on a valid complaint arising from the judgment on appeal …a valid complaint in an appeal must arise from the judgment appealed against, challenging a live issue or ratio decidendi in the judgment of the Lower Court”, See also Shettima Vs. Goni [2011] 18 NWLR [Pt.1297] 413 at 440; Ayangike Vs. Habib (Nig) Bank Ltd. [2013] LPELR – 2 1806 (CA); Obosi Vs. NIPOST [2013] LPELR – 21397 [CA].

It appears Appellant was therefore taking this Court for a ride by all those arguments on waiver and the Respondents too were not vigilant to call him to order by filing an objection to the appeal to stop the waste of our scarce judicial time!

Even, for the purpose of the argument, it can be seen, as per the evidence of the Respondent, on page 71 and 72, that the 2nd and 3rd Respondents, at the time of collecting the further payments from the appellant (after the expiration of the date of payment of the balance – 24/10/03, were no longer agents of the 1st respondent, as they even appeared to act on behalf of the Appellant, when DW2 and:

“… the plaintiff failed to pay as agreed. The 1st Defendant gave me a cheque of N500,000.00 to give to the plaintiff. The plaintiff refused to see the 1st Defendant and refused to collect the cheque. The plaintiff contacted us and asked us to beg the 1st Defendant, and the 1st defendant refused. The plaintiff then begged me to keep the money for him. He Paid up to N1,350,000.00 …..when he got the complete balance, he asked me to meet with the 1st defendant and persuade him to take the balance. The 1st Defendant refused to take it. I collected the money because the plaintiff persuaded me to do it.”

Under Cross examination the DW2 said:

“… I did not act on the instruction of the 1st respondent through out the transaction. I stopped from the time we wrote the 2nd agreement…”

That evidence was not challenged by the Appellant, who was economical with the truth, when he failed to plead or even mention the Exhibit D1 in his testimony. He rather said, falsely, on pages 66-67 of the Records.

“We agreed that the money asked be paid instalmentally …”

Under Cross examination, he was force to admit that:

“There is a letter of agreement executed between me and 1st defendant on 15th October, 2003. I signed”.

Even then, he added;

“I was not aware that the 1st defendant refused instalmental payment the 1st defendant refused instalmental payment …. To date I have not paid the total sum to the 1st defendant…..I did not pay money directly to 1st defendant “.

It is quite clear that the 2nd and 3rd Respondents were no longer acting as 1st Respondent’s Agents when they took further payments from the Appellant, after the date line in Exhibit D1, as they had no instruction of the 1st Respondent to collect any more money, upon the breach of the agreement by the Appellant. They were rather issued a cheque of N500,000.00 (embodying the earlier deposits) to pay back to Appellant, which evidence shows the Appellant refused to collect, and rather engaged the 2nd and 3rd Respondents to work on the 1st Respondent to change his mind, and asked them to keep the money (installments in Exhibit P1) for him, hoping 1st Respondent will finally accept the same!

I think, at that point, after the dateline in Exhibit D1, 2nd and 3rd Respondents were acting on Appellants’ instruction and so became his agents. He knew he was acting outside the terms of the contract in Exhibit D1 and was in breach of the same.

In the case Of AGROVET SINCHO PHARM LTD. & ANOR. VS. ESTATE OF ENGR. DAHIRU & ORS. [2013] LPELR – 20364 [CA], where the DW2, who initially served as agent of the Plaintiff in a sale of land, later turned round to do the bidding of the Defendant, back-stabbing the plaintiff who engaged him in the contract, we held on pages 37 to 39 thereof:

“On the role of DW2 (M.T. Badamasi) in the entire transaction, evidence shows he acted both for the Respondent and for Appellants in the transaction at different times. DW2 originally acted for Respondent, as his friend, when he paid the N1.9 Million, part payment. Thereafter, he became more of Appellants agents, and finally testifying for them… I therefore have no difficulty in holding that the DW2 (Badamasi) was not an agent of the Respondent, when he acted in betrayal of his friend, as he had no authority of the Respondent to collect the refund… and/or negotiate the payment of N350,000.00 alleged interest on the said returned sum…”

In the same way, the DW2, in this case, had admitted that he had no authority of the 1st Respondent, when he collected the alleged further instalmental payment; that Appellant persuaded them to collect the money; that 1st Respondent refused the money and would not accept the pleas of Appellant. He finally said that Appellant asked him to keep the money for him Appellant! They were therefore acting for the Appellant and at his pleasure and instruction, at that instance.

1st Respondent could not therefore be bound by the said conduct of the 2nd and 3rd Respondents for collecting further payments. The trial court was therefore right, in my opinion, when he held on page 80 of the Record:

“When they executed Exhibit D1, they intended to be and are definitely bound by D1. Whatever mode of payment that can be implied in P2 stops to be relevant and effective. The mode of payment in D1 becomes relevant and effective. The failure by the plaintiff to adhere to the mode of payment puts him in breach of the agreement. The remedy for the breach is specifically provided by the parties. That is, the property can be sold to another person.”

Of course, the issue of specific performance does not arise, where the party seeking to enforce a contract or agreement was, himself, in breach of the fundamental terms of the contract. He can only seek that equitable remedy, if he has put his house in order and shown compliance with his own side of the agreement. After-all, he who comes to equity must do so with clean hands! Appellant who was in breach of the Exhibit D1, by failing to pay the balance of the purchase price as at the date fixed by him to do so can not run away from the consequences of his failure, which he also spelt out in the Exhibit D1, that is, that the property can be sold to another person! In a way, he gave room for rescinsion of the contract of sale, or by conduct, brought the agreement to an end, after his default to keep faith with the 24/10/2003 stipulated for the completion of payment for the property.

I therefore resolve the issues against the Appellant and hold that the appeal is devoid of merit and should be dismissed. It is accordingly dismissed by me.
Appellant shall pay cost assessed at N30,000.00 (Thirty Thousand Naira only), to the 1st Respondent.

DALHATU ADAMU, J.C.A.: I have read the judgment of my learned brother Mbaba JCA. I agree with his reasoning and the conclusion he reached that all the issues were resolved against the appellant. I too feel that the appeal is devoid of any merit and should be dismissed. I accordingly hereby dismiss it and abide by the order on cost as made in the lead judgment.

ABDU ABOKI, J.C.A.: I had the privilege of reading a draft of the judgment delivered by my learned brother ITA GEORGE MBABA, JCA. I agree with him that the appeal is devoid of merit and should be dismissed. It is accordingly dismissed by me and I abide by the consequential orders in the lead judgment.

Appearances

O.I. Habeeb Esq.For Appellant

AND

Chief Chris A. Ekhasemomhe for the 1st and 3rd Respondents
Dennis Usman Esq., for the 2nd respondentFor Respondent