AUGUSTINE ASIBE & ORS V. OWERRI MUNICIPAL LOCAL GOVERNMENT
(2012)LCN/5381(CA)
In The Court of Appeal of Nigeria
On Friday, the 18th day of May, 2012
CA/PH/6/2008
RATIO
WORDS AND PHRASES: MEANING OF A FRESH POINT OF LAW
A fresh point of law means an issue which was not canvassed at the lower court and pronounced upon thereat. See F.B.N. Plc vs. A.C.B. Ltd. (2006) 1 NWLR (Pt. 962) 438 at 461. Fresh issue must be basically on point of law and must be raised with the leave of the court.
See, Ezukwu v. Ukachukwu (2004) 17 NWLR (Pt. 902) 227 Olalomi Industries Ltd v. N.I.D.B Ltd. (2009) 16 NWLR (pt. 1167) 266 at 286. PER MOJEED A. OWOADE, J.C.A
JURISDICTION: INGREDIENTS OF JURISDICTION
What constitutes the vital ingredients of jurisdiction are encapsulated in the lucid pronouncement of Bairaman JSC in the celebrated case of Madukolu v. Nkemdilim (2006) LC 208, (1961) NSCC (Vol. 2) 374 at 379, (1962) 1 All NLR 587 when he instructively stated:
“Before discussing that portion of the record, I shall make some observation on jurisdiction and the competence of a court. Put briefly, a court is competent when-
- It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason of another, and
- The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction, and
- The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: The defect is extrinsic to the adjudication. If the court is competent the proceedings are not a nullity.”
See also, Ihesi v. Arinze (2007) 5 NWLR (Pt. 1027) 241, Diamond Bank Ltd. V. Ugochukwu (2008) 1 NWLR (Pt. 1067) 1 Amadasun vs. Ume (2007) 13 NWLR (Pt. 1051) 214 WAEC v. Adeyanju (2008) 9 NWLR (Pt. 1092) 270, Zaranda v. Tilde (2008) 10 NWLR (Pt. 1094) 184. PER MOJEED A. OWOADE, J.C.A
EVIDENCE: WHETHER ASSESSMENT OF THE CREDIBILITY OF WITNESSES IS PRIMARILY THE FUNCTION OF THE TRIAL COURT
It is settled law that the assessment of the credibility of witnesses in a case is primarily the function of the trial court which alone has the opportunity of seeing and hearing witnesses and therefore an appellate court has no basis for interference with findings based therein.
See Maduagwu v. Maduagwu (1991) 8 NWLR (pt. 212) 684, Onyemaechi v. Nwaohamuo (1992) 9 NWLR (pt. 265) 372, Archibong v. Akpan (1992) 4 NWLR (Pt. 238) 740, Balogun v. Labiran (1988) 3 NWLR (Pt. 80) 66 and Ibuluya v. Dikibo (2010) 18 NWLR (Pt. 1225) 627 at 641. PER MOJEED A. OWOADE, J.C.A
CONTRACT: NATURE OF FRUSTRATION
In the case of Mazin Eng. Ltd Vs. Tower Aluminium [1993] 5 NWLR (pt.295) 526 Wali JSC, adopted viscount Simon’s definition of frustration in Crinkle-Wood Property & Investment Trust Ltd. (1945) 1 All ER, 252 at 255, which contained the following proposition.
“Frustration of contract is the premature determination of an agreement between parties lawfully entered into and in course of operation at the time of its premature determination, owing to the occurrence of an intervening event or change of circumstances so fundamental as to be regarded by law both as striking at the root of the agreement, and as entirely beyond what was contemplated by the parties when they entered into the agreement….
According to the learned Justice of the Supreme Court, where a contract is frustrated, it operates to bring the contract to an end and further performance by the parties is excused, provided the frustrating event occurs before a breach of the contract by either party and is not brought about by the fault of either of them (supra, at page 537). PER MOJEED A. OWOADE, J.C.A
JUSTICES
UWANI M. ABBA AJI Justice of The Court of Appeal of Nigeria
MOJEED A. OWOADE Justice of The Court of Appeal of Nigeria
HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
1. AUGUSTINE ASIBE
2. CAJETAN OKAFOR
3. INNOCENT ANYANWU
4. CELESTINE ONYEKWERE (For themselves and as representing other members of the Owerri Main Market Butchers Association) Appellant(s)
AND
OWERRI MUNICIPAL LOCAL GOVERNMENT Respondent(s)
MOJEED A. OWOADE, J.C.A (Delivering the Leading Judgment): This is an appeal against the decision of P.O. Nnadi, J. sitting at High Court, Owerri in the Owerri Judicial Division of the High Court of Imo State delivered on 3rd day of March, 2007.
The Appellants as Plaintiffs took out a Writ of Summons against the Respondent on 6/11/2003. This was followed by a statement of claim dated 12/3/2003 but filed on 16/12/2003. Paragraph 23 of the Appellants statement of claim prayed for the following reliefs.
(a) Declaration that the forceful acquisition of the plaintiff’s sheds/market stalls in the Owerri Main Market, and ejection of the plaintiffs therefrom by the Defendant is unconstitutional, illegal wrongful and void.
(b) N110, 000.0000.00 General Damages for the said unlawful ejection and continuing loss of revenue.
(c) Mandatory injunction directing the Defendant to restore the displaced Plaintiffs to their said sheds in the Owerri Main Market OR ALTERNATIVELY allocate alternative equivalent number of sheds to the Plaintiffs in Owerri Main Market or any other functional market in Owerri Metropolis/Municipality.
(d) Injunction restraining the Defendant by its agents, privies or controllers, or workmen, by whatever name called from allocating or assigning the sheds or spaced seized from the Plaintiffs to any other persons, group or authority, or constructing any structures on same without first allocating alternative equivalent shed to the plaintiffs.
The Respondent as Defendant in the court below also filed a Statement of Defence on 14/1/2004.
In the court of the trial, the Appellants amended their statement of claim to put it in line with the evidence of PW2.
The Appellants case was that in 1996, they entered into a tenancy agreement with the Respondent by which the Respondent allocated to each of their 110 members of the Butchers Association a portion of the open spaces at the Owerri Main Market called Free Zone to carry on the business of meat selling. The Association collectively paid the sum of N840, 000.00 to the Respondent and individually paid an annual rent of N240.00 per space which rent was later increased to N750.00 per annum.
Each of the 110 members of the Butchers Association was given an allocation paper by the Respondent. Thereafter, the Appellants spent the sum of N300, 000.00 to cover the bare ground of the open spaces with concrete cement floor.
The Appellants carried on their trade until the 3rd day of September 2003 when members of the State Task Force on Street Trading including armed Mobile Policemen without any prior warning or notice came to the Owerri Main Market and destroyed the sheds and structures built by the Appellants and carted away some of the wares of the Appellants.
The Appellants quickly approached the Chairman of the Respondent who directed them to relocate to the Owerri Relief Market. The Appellants went to the Owerri Relief Market and the prior allottees of the sheds at the Relief Market resisted the Appellants from taking occupation of the portion of the Relief Market shown to them. Prior to the destruction of their sheds, the Appellants had paid their rent for the year ending 31st December 2003. When the policemen of the State Task Force did not allow the Appellants carry on their trade and the Respondent could not give them any other place to carry on their trade, they brought the court action.
The Respondent admitted giving llocation papers to members of the Association. The allottees of the open spaces in the Free Zone of the Main Market were not allowed to erect any structures on the open spaces. The task force set up by Imo State Government to check street trading and decongest access roads and thoroughfare in the Owerri Main Market destroyed the structures of the allottees on 3rd of September 2003. The Respondent did not set up the Imo State Task Force. Before the lower court, the Appellants called two witnesses, the Respondent also called two witnesses.
At the end of the trial, the learned trial Judge found that both parties admitted that the actual demolition of the structure erected by the Appellants was carried out by the men of the task force set up by the Imo State Government to rid the streets of street traders. He also found abundant evidence of the existence of contractual relationship between the Appellants and the Respondent.
At page 139 of the printed record, the learned trial Judge concluded his judgment as follows:
“In conclusion, I hold that the Plaintiffs are not entitled to the reliefs sought in paragraph 23 (a) and (b) of the claim and they are accordingly dismissed. I also hold that the Plaintiffs have proved their case to be entitled to the reliefs claimed in paragraph 23 (c) and (d) and hereby enter judgment in favour of the Plaintiffs as follows:
1. That the Defendant is hereby ordered to allocate alternative equivalent number of shed/space (110) to the Plaintiffs in any functional market in Owerri Metropolis.
2. Injunction restraining the defendant by its agents, privies or workers and by whatever name called from allocating or assigning the sheds or spaces seized from the Plaintiffs to (sic) in the Free Zone of the Owerri Main Market to any other person, group or authority or constructing any structures on same without first allocating alternative sheds/spaces to the plaintiffs …”
Still dissatisfied with this judgment, the Appellants filed a Notice of Appeal (containing four grounds of appeal) before this court on 10/4/2007.
Appellant’s brief of argument dated 25/3/2008, filed on 27/5/2008 was deemed filed on 13/5/2010.
Respondent’s brief of argument dated 30/6/2010 was filed on the same day. Appellants Reply Brief dated 15/11/2010 was filed on 18/11/2010.
The Appellants nominated a sole issue for determination, that is:
“Whether in view of the pleadings and on the preponderance of evidence, the learned trial Judge was right in absolving the Respondent from liability for the forceful ejection of the Appellants and consequently dismissing Appellants claims A and B”.
The Respondent also brought out only one issue for determination in the appeal, that is:
“Whether the trial court was not right in dismissing Appellants claims 23A and B”.
The Respondent, in addition raised preliminary objection as to the jurisdiction of this court to entertain this appeal. First, because, according to him the Respondent on record is not a juristic person. Second, because necessary parties were not joined in the suit to confer jurisdiction on the court.
On the 1st leg of the preliminary objection, learned counsel for the Respondent referred to the First Schedule, part 1 Section 3, of the constitution of the Federal Republic of Nigeria 1999 and submitted that there are only seven hundred and seventy four (774) Local Governments in Nigeria and twenty seven (27) Local Governments in Imo State of Nigeria.
He submitted that what is identified is “OWERRI – MUNICIPAL” as Local Government and when added with the Local Government Area and State, it becomes OWERRI – MUNICIPAL LOCAL GOVERNMENT AREA OF IMO STATE.
He submitted that Owerri Municipal Council as Respondent, does not reflect a Local Government, rather it connotes the Legislative, Executive or Administrative body of Owerri Municipal Local Government.
Counsel referred to the dictionary meaning of the word “council” – to advise, administer, organize, discuss and/or legislate.
He referred to Black’s Law Dictionary 7th Edition at pages 354, 352 and 1037 and Chambers 21st Century Dictionary at page 309.
Counsel argued that the Respondent on record sued is the legislative or administrative body of a Local Government and not the Local Government itself, but an integral body of a local Government, which is not a juristic person.
A Local government, he said, is a creation of a statute i.e. the Constitution of Federal Republic of Nigeria and must be identified by the name given to it by the statute that created it and any other name than its statutory name is a nick name which is not real and proper before the law.
He referred to the case of Njemanze V. Shell BP (1960) 1 All NLR 8.
Counsel further submitted that No action can be maintained against the Respondent as a non-juristic person. And, any order made against the Respondent will not be binding on the proper Local Government that had contract with the Appellants.
On the second leg of the preliminary objection, learned counsel for the Respondent submitted that the parties to the suit are agreed that the Appellants structures were removed by Mobile Policemen and Task Force and the properties carted away to premises of Owerri Capital Development Authority (O.C.D.A.) under control of Imo State Government.
Counsel submitted that Imo state Government that set up the task force is a necessary party as to determine terms of reference given to the taskforce, whether Appellants stalls without approval by Owerri Capital Development Authority under Imo State Government are illegal structures or otherwise.
Also, said counsel, the Police Commissioner of Imo State whose men participated in the act or the Taskforce itself would have been joined in the suit.
He submitted that failure to join Imo State Government, commissioner of police, Imo State and the task force amounts to non-joinder of necessary parties which ab initio deprived the lower court of jurisdiction to try the matter.
On the first issue of the preliminary objection, learned counsel for the Appellants submitted that the complain that the Respondent was addressed as “Owerri Municipal Council” which is not a juristic person is misleading.
Counsel said the same issue was raised at the trial, whereby the learned trial Judge granted the application by the Appellants to amend the records to read “Owerri Municipal Local Government”. The Respondent, said counsel, did not appeal against the decision correcting its name. It cannot therefore bring the issue up before the Court of Appeal. Moreover, said counsel, the Notice of Appeal clearly reflects the proper name of the Respondent.
Learned counsel for the Appellants submitted that the Respondent’s second issue in the preliminary objection as to necessary parties was not raised before the lower court and that no leave was sought for and obtained to raise same before this court. This, counsel said, it cannot do.
He referred to the case of Agu v. Ikwwuibe (1991) 4 SCNJ 56 at 66 – 67.
Appellants counsel furthered that even assuming that Respondent can raise a new issue on appeal without leave of court; the entire argument presented on same in the Respondent’s brief is totally misconceived.
Counsel argued that there is nothing jurisdictional about the non-joinder of any party, necessary or not. He said the law is well settled that the non-joinder of a necessary party cannot nullify any proceedings or decision; neither can it defeat an action.
In such a case, the court may deal with the matter in controversy so far as regards the rights and interest of the parties actually before it.
On this, counsel referred to the cases of Okoye vs. Nig. Const. (1991) 7 SCNJ (Part 2) 365 at 383 – 386, Osunrinde v. Ajamogun (1997) 7 SCNJ (Part 1) 79, 90 and 93. Union Beverages V. Pepsicola (1994)2 SCNJ 157 at 173.
I think the learned counsel for the Appellants has adequately responded to the two legs of the Respondent’s preliminary objection.
In the first place, the Respondent on record in this appeal is Owerri Municipal Local Government and not Owerri Municipal Council.
Learned counsel for the Appellants was right to have said that this ground of objection is misleading.
Perhaps, the Respondent had an arguable point at the time the suit was instituted on the question as to whether or not the then Respondent “Owerri Municipal Council” is a juristic person. But then, on 13th December 2006 (pages 125-127 of the record) the learned trial Judge granted an amendment which substituted the name of the Defendant/Respondent by deleting the word “Council” in the name of the Defendant and substituting same with the words “Local Government” The Defendant on record therefore properly became “Owerri Municipal Local Government” which name was not only reflected in the judgment of the lower court delivered on 3/3/2007 but also in the Notice of Appeal filed in this court on 10/4/2007. I cannot see the complain of the Respondent in this regard in the absence of an appeal on the Ruling delivered by the lower court on 13/12/2006.
The 1st leg of the Respondent’s preliminary Objection lacks merit and it is accordingly overruled. Similarly, the learned counsel for the Appellants was right to say that the non-joinder of necessary parties was not an issue before the lower court and would require leave of court to be entertained as an issue on appeal. No such leave was sought for and obtained by the Respondent in this case.
Furthermore, the question of non joinder of parties does not touch on the jurisdiction of the court and therefore remains a fresh issue on appeal. A fresh point of law means an issue which was not canvassed at the lower court and pronounced upon thereat. See F.B.N. Plc vs. A.C.B. Ltd. (2006) 1 NWLR (Pt. 962) 438 at 461. Fresh issue must be basically on point of law and must be raised with the leave of the court.
See, Ezukwu v. Ukachukwu (2004) 17 NWLR (Pt. 902) 227 Olalomi Industries Ltd v. N.I.D.B Ltd. (2009) 16 NWLR (pt. 1167) 266 at 286.I also agree with the learned counsel for the Appellants that “the non-joinder of parties is not a jurisdictional issue”. What constitutes the vital ingredients of jurisdiction are encapsulated in the lucid pronouncement of Bairaman JSC in the celebrated case of Madukolu v. Nkemdilim (2006) LC 208, (1961) NSCC (Vol. 2) 374 at 379, (1962) 1 All NLR 587 when he instructively stated:
“Before discussing that portion of the record, I shall make some observation on jurisdiction and the competence of a court. Put briefly, a court is competent when-
1. It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason of another, and
2. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction, and
3. The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: The defect is extrinsic to the adjudication. If the court is competent the proceedings are not a nullity.”
See also, Ihesi v. Arinze (2007) 5 NWLR (Pt. 1027) 241, Diamond Bank Ltd. V. Ugochukwu (2008) 1 NWLR (Pt. 1067) 1 Amadasun vs. Ume (2007) 13 NWLR (Pt. 1051) 214 WAEC v. Adeyanju (2008) 9 NWLR (Pt. 1092) 270, Zaranda v. Tilde (2008) 10 NWLR (Pt. 1094) 184.
In the instant case, the non-joinder of the Imo State Government, the Commissioner of Police Imo State or the Task Force does not affect the competence of the suit nor the jurisdiction of the court below to try the matter.
All the ingredients laid down in the case of Madukolu v. Nkemdilim (supra) as to the competence of a court to assume jurisdiction were present in this case. Where there is non-joinder of a necessary party the court may deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. See, Union BEVERAGES V. PEPSICOLA (supra) at 173.
The second leg of the Respondent’s preliminary objection equally lacks merit and it is overruled.
Having overruled the two issues raised in the Respondent’s notice of preliminary objection, the notice of preliminary objection is dismissed.
In arguing the sole issue for determination, learned counsel for the Appellants conceded that it is common ground between the parties that it was the Imo State Government, not the Respondent that set up the Task Force on street trading. However, said counsel, the scope of authority or duty of the task force was limited to the streets – illegal structures and trading along the streets of Owerri. It did not extend into the markets.
Counsel said, it is equally common ground between the parties that the 110 sheds of the Appellants were situated inside Owerri Main Market and not on or along any street.
Appellants counsel said the paramount question to answer on this issue is: Who directed or led the said task force men away from the streets and into the market to the sheds of the appellants? The answer to this question, he said, can be deduced from the facts and circumstances of this case, including the conduct of the parties.
Counsel submitted that in their statement of claim, Appellants pleaded that it was the respondent’s agents that led the Task force men to Appellants sheds to demolish same. That the evidence of PW1 was in line with this pleading. That this was not dislodged under cross-examination. Rather, PW1 agreed that though it was Imo State Government that set up the Task Force, the scope of its duties was limited to the streets and not inside market.
The PW2, said counsel not only confirmed the fact that it was the Respondent who brought the task force men into Appellants sheds in the market, but added a twist that the team was in fact accompanied by the then chairman of the Respondent. He said an attempt to challenge his evidence during cross-examination only brought out an emphatic reaffirmation of the fact that it was the Respondent that led the task force Policemen into the market and to Appellants sheds.
Counsel submitted that the evidence of DW1 is at best useless, contradicted the express pleadings of the Respondent that called him, and clearly showed his bias against the Appellants who removed him from office. But, that, the evidence of DW2, an employee of the Respondent, is revealing. That, this witness said she did not accompany Respondent’s Chairman to the Main Market during the demolition, did not hear what the Chairman told the Appellants “at the Owerri Main Market when the incident was going on” she did not deny that the Respondent’s chairman went to the Main Market during the demolition.
Counsel submitted that the conduct of the Respondent sequel to the demolition clearly demonstrates that it not only desired the removal of the Appellants from the Main Market, but was desperate to have this done, as well as supports the inference that it machinated same in the first place. The pleadings and evidence of the parties show that Respondent was quick to order Appellants to relocate to the Relief Market.
Counsel said it is noteworthy that while Respondent pleaded at paragraph 25 of its statement of Defence “It insisted on the plaintiff’s movement to Relief Market…mainly on the report of the Chief Environmental Officer … That the place meat sellers carry on their trade has poor sanitary condition ………………”
DW2 said at Page 84 that “the market masters collect revenue, keep the market clean and report back to the Local Government if there is any problem in the market. The market masters did not make any reports against the structures put up by the plaintiffs in the Main Market.”
The significance of the above facts, said counsel, comes into prominence when one considers and applies the legal effect of the provisions of Section 9(2) and 12 (b) of the Evidence Act. When taken in totality, along with the fact that Respondent made no attempt to protect its tenants (Appellants) whose tenancy was valid and subsisting, from an unlawfully forceful ejection of those tenants by a 3rd party. Also, that the Respondent did not protest the alleged interference by the 3rd party, but rather adopted that 3rd party’s act by immediately ordering its said tenants to move out of the demised premises.
He submitted that no other inference can be drawn but that it was squarely responsible for the act committed by the alleged 3rd party, that is even if we are to believe that it was the Imo State Government and not the Respondent that terminated Appellant’s tenancy with the Respondent.
Counsel submitted that the learned trial Judge’s quarrel in his judgment with the late amendment made at paragraph 13 of the statement of claim, and his view that the evidence of PW2 that Respondent’s Chairman led the demolition team was an afterthought, is clearly misconceived and so misdirected.
In the first place, said counsel, the pleadings and evidence of the Appellants are firmly consistent that it was Respondent that brought or led the demolition team to their sheds. The Respondent is a corporate entity which can only act through human agents. Its Chairman is only but one of such agents.
Secondly, according to the appellants counsel, the evidence of Respondent through its DW2 confirms that its Chairman was at that market during the demolition.
Thirdly, said counsel, the conduct of the said Chairman and other agents of the Respondent following the demolition clearly lends great weight to that piece of evidence. And, fourthly, that, even if that piece of evidence and amendment – which only added “led by its chairman” – are expunged what remains of the pleading and evidence show that it was the Respondent that led the Imo State Government Task Force whose duty was to clear street traders, into the market which is not a street to demolish Appellants sheds.
Counsel submitted that the learned trial Judge was therefore wrong to have held that piece of evidence to be an afterthought, disbelieved same, and then turned round to hold that there was no direct evidence showing that the task force acted on behalf of the respondent, thereby absolving Respondent of liability.
Counsel submitted that once the issue as to the evidence of PW2 is resolved, what ordinarily and naturally follows is that the Respondent is liable to the Appellants in damages for the unjustified breach of contract between the parties.
Counsel referred to the cases of Kusfa v. U.B.C. Ltd 1994 4 S.C.N.J. (Pt. 1) 1 at 6, Nzeribe v. Dave 1994 1 S.C.N.J. 161 at 186, Eseigbe v. Agholor 1993 12 S.C.N.J. 82 at 93 and Onwu v. Nka 1996 7 S.C.N.J 240 at 258 to show that the law allows a plaintiff who has difficulty in calculating or quantifying his actual loss or damage to claim in general damages and also that the courts are entitled to keep up with the times and economic trend in the country particularly with the prevailing decline in the purchasing power of the Naira in the award of damages.
He urged us to allow the appeal.
Learned counsel for the Respondent adopted the position that the Task Force set up by Imo State Government has responsibility to clear illegal structures in Owerri, Owerri Main Market inclusive and that the burden of proof that the task force on clearing of illegal structures in Owerri did not include the Main Market lies with Appellants as they are the ones that will lose if no evidence is given to that effect.
Counsel referred to the provision of Section 135 (1) and (2), 136 and 137(1) of the Evidence Act Cap. 112 Laws of the Federation of Nigeria 1990 (now Sections 131, 132 and 136(1) of the Evidence Act 2011).
Learned counsel for the Respondent reviewed the evidence of PW1, which he said clearly showed that the Task Force was set up by the Imo State Government and that the Appellants do not know the terms of reference of the task force. That, the further evidence of PW1 on 20/5/2004 showed that the Appellants went to report the incident to the Chairman of the Respondent on 3/9/2003.
Respondent’s counsel pointed out that the evidence of PW2, in essence re-affirmed and corroborated that of PW1.
However, that the same PW2 who gave evidence of how he saw task force members and Mobile Policemen without mentioning Chairman of Respondent now turned on 31/11/2005 to say that he saw Chairman of Respondent leading the Mobile Policemen, while admitting that Imo State Government set up the Task Force.
The evidence of PW2, said Respondent’s counsel made it clear that Appellants stalls were on the wall of Township Stadium Owerri and that there was no written permission by the Respondent for them to erect structures there, rather the permission was oral.
Respondent’s counsel submitted that the Appellants did not show that the task force was set up by the Respondent. That, rather all the witnesses are agreed that the task force was set up by the Imo State Government. That PW1 expressly admitted that the task force was responsible for the demolition. That, the initial evidence of PW2 was also clear on the fact that the demolition was done by the Task Force. But subsequently, PW2 changed his words to say that the Chairman of the Respondent led the Mobile Policemen.
Counsel for the Respondent submitted that the pertinent question to be asked is whether the suit is not bound to fail, the trial court having agreed with the Respondent that the demolition was an act of third party i.e. Imo State Government and if then, whether such third party action has not frustrated the contract between the Appellants and the Respondent.
Counsel urged us to hold that the contract between the parties was frustrated by the act of a third part. More so, when the Appellants were not allowed to come back on their stalls by the Mobile Policemen, thereby putting the contract to an end. On this, he referred to the case of N.A.C.B. Ltd. V. Salems Farms Ltd. (2006) all FWLR (Pt. 320) 1174 at 1175.
In deciding the sole issue in this appeal, I must say that the brief of the learned counsel for the Appellants has not drawn a necessary distinction between facts, evidence and opinion, between events, actions and motives and between credible evidence and pleadings.
If we start from the premise that the parties are agreed that the task force which demolished the Appellants sheds was set up by the Imo State Government and not the Respondent, I sincerely wonder what is left of the Appellants claim for damages for the demolition from the Respondent.
The learned counsel for the Appellants did not tender any documents in this case to show the terms of reference of the task force, yet he opined that the Task Force members were not supposed to carry out any functions in the Owerri Main Market. Counsel did not provide any link between the official function of the Chairman of the Respondent, the Task Force and the Mobile Policemen, yet he held on to the incredible evidence of PW2 that the task force was led into the market by the Chairman of the Respondent.
Appellants counsel made heavy weather of the twist in turn in the evidence of PW2, without realizing that the learned trial Judge provided sufficient reasons and had ample justification for discrediting PW2.
The reasoning of the learned trial Judge on this issue could be captured from his judgment from pages 135 – 137 of the record. He said:
“From the state of the pleadings, it is not in doubt that both parties admitted that the actual demolition of the structure erected by the plaintiffs was carried out by the men of the task force set up by the Imo State Government to rid the streets of street traders.
Though the PW2 in his evidence stated that the men of the Task Force were led by the Chairman of the defendant and the statement of claim was amended to reflect this piece of evidence given, a calm view of the entire pleadings of the parties and the evidence adduced seem not to support the statement that the Chairman of the defendant led the Task Force Policemen to demolish the sheds erected by the plaintiffs. For instance, whist the PW1, in his evidence in chief on 20/5/2004 said that the defendant led the Policemen to demolish the shed and went further to say that when they (plaintiffs) discovered what happened; they quickly approached the Chairman of the defendant who advised them to go over to the Relief Market. PW1 never said which of the defendant’s staff took the policemen to demolish the shed. On his part, the PW2 on 8/6/2004 stated that on 3/03, Mobile Policemen came with the task force and demolished the stalls they erected at the Free Zone. That he saw the Mobile Policemen and the Task Force demolish the stalls and they reported the incident to the defendant’s Chairman who advised the traders to go over to the Relief Market.
The learned trial Judge continued:
“On the 31st of January 2005 when the PW2 resumed giving evidence in chief, he now said that the defendant and its chairman came with the Mobile policemen who destroyed their sheds and wares. This later version appears to be an afterthought as he could have given same at the earliest opportunity when he testified on 8/6/2004 and more so, when the pleadings or statement of claim did not state so but had to be amended to tally with this piece of evidence. Again, if the chairman of the defendant led the team, that piece of evidence would have been given first when the piece of evidence of demolition by the task force is, mentioned. I do not believe that the chairman of the defendant personally led the policemen of the task force to demolish the structures put up at the Free Zone by the plaintiffs.”
He concluded that portion as follows:
“This being the case and in the absence of any direct evidence that the State Task Force acted on behalf of the defendant, the defendant cannot be held liable or responsible for the acts of the State Task Force which acts from the evidence made it impossible for the plaintiffs to continue with their trade on the Free Zone and relieved the defendant of any liability for the acts of that task force and any damages caused thereto.”
Clearly, the reasoning of the learned trial Judge in the above passages is sound and his conclusion unassailable.
It is settled law that the assessment of the credibility of witnesses in a case is primarily the function of the trial court which alone has the opportunity of seeing and hearing witnesses and therefore an appellate court has no basis for interference with findings based therein.
See Maduagwu v. Maduagwu (1991) 8 NWLR (pt. 212) 684, Onyemaechi v. Nwaohamuo (1992) 9 NWLR (pt. 265) 372, Archibong v. Akpan (1992) 4 NWLR (Pt. 238) 740, Balogun v. Labiran (1988) 3 NWLR (Pt. 80) 66 and Ibuluya v. Dikibo (2010) 18 NWLR (Pt. 1225) 627 at 641.
Furthermore, in the instant case, even though the learned trial Judge found that there is abundant evidence of the existence of contractual relationship between the parties, it became obvious that the contract had been frustrated by the destruction of the subject matter of the contract by the action of government which was not within the contemplation of the parties at the time of entering into the contract.
In the case of Mazin Eng. Ltd Vs. Tower Aluminium [1993] 5 NWLR (pt.295) 526 Wali JSC, adopted viscount Simon’s definition of frustration in Crinkle-Wood Property & Investment Trust Ltd. (1945) 1 All ER, 252 at 255, which contained the following proposition.
“Frustration of contract is the premature determination of an agreement between parties lawfully entered into and in course of operation at the time of its premature determination, owing to the occurrence of an intervening event or change of circumstances so fundamental as to be regarded by law both as striking at the root of the agreement, and as entirely beyond what was contemplated by the parties when they entered into the agreement….
According to the learned Justice of the Supreme Court, where a contract is frustrated, it operates to bring the contract to an end and further performance by the parties is excused, provided the frustrating event occurs before a breach of the contract by either party and is not brought about by the fault of either of them (supra, at page 537).
In the instant case, the frustrating event, that is the demolition of the Appellants sheds by the task force of the Imo State Government occurred in the pendency of the contract between the parties and was not brought about by the fault of either of the parties.
The sole issue for determination in this appeal is resolved against the Appellants.
This appeal lacks merit and it is according dismissed.
There shall be no order as to Costs.
UMANI MUSA ABBA AJI, J.C.A: I have had the privilege of reading in draft the judgment of my learned brother, M.A. Owoade, JCA, just delivered.
I completely agree with his reasoning and conclusion that this appeal is devoid of any merit. I also dismiss the appeal.
I made no order as to costs.
HARUNA M. TSAMMANI, J.C.A: I had the advantage of reading in advance the judgment just delivered by my learned brother, M. A. OWOADE, JCA.
I agree entirely with the conclusion of my learned brother that the appeal has no merit and should be dismissed. I also hold that this appeal has no merit. It is accordingly dismissed.
I abide by the order on costs.
Appearances
Chidi B. NworkaFor Appellant
AND
V.O. Ehirim, EsqFor Respondent
