MRS. CAROLINE OKONKWO & ANOR v. MOBIL OIL NIGERIA PLC
(2018)LCN/11779(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of June, 2018
CA/PH/539/2011
RATIO
THE ESSENCE OF JURISDICTION
The law is trite that wherever the issue of jurisdiction is raised in a litigation, the issue has to be determined first before going into the merit of the case. This is so because jurisdiction is the threshold issue to adjudication. A proceeding, no matter how well conducted and brilliantly decided, is a nullity if conducted without jurisdiction per AHMAD OLAREWAJU BELGORE, J.C.A.
JUSTICES
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
Between
- MRS. CAROLINE OKONKWO
2. ENGR. EMMANUEL OKONKWO Appellant(s)
AND
MOBIL OIL NIGERIA PLC Respondent(s)
AHMAD OLAREWAJU BELGORE, J.C.A. (Delivering the Leading Judgment):
By an Amended Statement of Claim filed on the 17th day of July, 2008, the Appellants herein as the claimants before the Rivers State High Court, sitting in Port Harcourt (hereinafter referred to as The Trial Court) claimed against the Defendant (Now The Respondent) in paragraph 26 as follows:
(a) A Declaration that the 2nd Claimant is the named operator of the filling station and is therefore entitled to remain in possession and management of the Mobil Service Station of NPA gate along Industry Road, Port Harcourt until they are evicted through the process of Court.
(b) An Order of Perpetual Injunction restraining the Defendant from forcibly ejecting the Claimants from the Mobil Service Station at NPA gate along Industry Road, Port Harcourt.
(c) An Order directing the Defendant to pay to the Claimants the sum of N4,005,000.00 they paid to the Defendant for the supply of petroleum products, the outstanding deposit balance of N4,622,144.80 in Chief M. I. Okonkwos Account with the Defendant, the sum of N201,000.00 for underground petroleum products they stocked at the station, the sum of N908,640.00 being the amount of money the Defendants employees removed from the Claimants underground save, when they invaded the service station on 30/5/2008 and the sum of N6,091,360.00 for the Lubes, Drinks and other properties which were either removed or damaged by the Defendants servants.
(d) The sum of N556,000.00 as Rebate per month beginning from the month of February 2008 until the time of the judgment of this suit and the sum of N768,000.00 for the period of eight years as Lube-Expert salary from Mr. Duabary Azaka beginning from January, 2000 to 2008.
(e) Interest of the rate of 25% per annum on the total judgment debt until final liquidation of the judgment sum.
(f) The sum of N5,000,000.00 as general damages.
In an Amended Statement of Defence filed on the 21st day of July, 2008, the Respondent denied virtually all the averments in the Amended Statement of Claim. It denied any liability to the Appellants in terms of their claim, urging the trial Court to dismiss same as being frivolous and an attempt at gold digging.
The Appellants called four witnesses who adopted their respective written depositions on oath and several exhibits were tendered. The Respondent sole witness adopted his written deposition on Oath and several exhibits were tendered. The witnesses on both sides were cross-examined.
Upon the conclusion of trial, parties filed final written addresses which were adopted by learned counsel on both sides as their arguments before the trial Court (See Pages 332-381 of the record of appeal).
On the 9th day of June, 2009, the learned trial Judge, in dismissing the Appellants Claim in part, granted a part of their claim by ordering the Respondent to pay, to the Appellants, the sum of N4,183,917.30 due them as Administrators/Representatives of the Estate of Late Chief M. I. Okonkwo, their husband and father respectively. The trial Court also ordered the Appellants to vacate the Respondents premises with immediate effect.
The Appellants being dissatisfied with the judgment appealed, ex debito justitiae, to this Court upon a further Amended Notice of Appeal containing three Grounds of Appeal, which read thus:
3
GROUND ONE:ERROR IN LAW
The learned trial judge erred in law when he wrongly evaluated the evidence led at trial and dismissed the Claimants/Appellants suit on the ground that the case lacks merit.
PARTICULARS OF ERROR
i. The learned trial judge admitted Exhibit B in evidence, which document is inadmissible in law and relied heavily upon such inadmissible document in the consideration of Judgment.
ii. The learned trial Court failed to consider material evidence in Exhibit C produced by the Claimants.
iii. The evaluation and consideration of Exhibit C would have led the trial Court to reach a different conclusion.
iv. The Order of the Learned trial Judge dismissing the case of the Claimants/Appellants was without basis and not supported by evidence before the Court even when the same Court awarded the sum of N4,183,917.30 to the Claimants/Appellants.
GROUND TWO: ERROR IN LAW
The learned trial judge erred in law when he failed to award general damages to the Claimants/Appellants.
PARTICULARS OF ERROR
i. The trial Court failed to give any consideration whatsoever to the claim for damages arising from the forceful eviction of the Claimants/Appellants from the NPA Service Station on 27/5/2008 by the Defendant/Respondent.
ii. The trial Court failed to evaluate the evidence of forcible entry and wrongful eviction led before the Court.
GROUND THREE: ERROR IN LAW
The learned trial judge erred in law when it made an order of specific performance directing the Claimants/Appellants to vacate the Defendant/Respondents NPA Gate Service Station along Industry Road, Port Harcourt with immediate effect.
PARTICULARS OF ERROR
i. The Order to vacate the Defendants NPA Gate Service Station along Industry Road, Port Harcourt with immediate effect was made without jurisdiction.
ii. The trial judge was not justified to grant to the parties a relief not sought by any of them.
iii. None of the parties to the suit sought for such relief and the Court went ahead to make such order.
iv. The learned trial judge has by so doing descended to the arena to make the case for the Defendant/Respondent and thereby divested itself of the position of the arbiter in the consideration of the case before her.
- The trial judge was wrong when he made an order of dismissal of the case of the Claimants on the grounds that the Claimants case lacks merit even when the sum of N4,183,917.30 was awarded to the Claimants based on evidence admitted by the Defendant.
Parties filed and exchanged briefs of argument. In the Appellants Brief of Argument, settled by J. C. Idoko Esq., three issues are formulated for determination, viz:
1. Whether the learned trial Judge properly evaluated the evidence adduced by both parties before coming to the conclusion that the claimants case lacks merit and thereby dismissing the suit.
2. Whether from the circumstances of this case the learned trial Court discharged his (Sic) duty when he failed to give any consideration to the claim for damages arising from the forceful ejection of the Claimants/Appellants from the NPA Service Station on 30/5/2008 by the Defendant/Respondent.
3. Whether the trial Court had jurisdiction to grant a relief not sought for by any of the parties.
In the Respondents Brief of Argument settled by Ben Amego, Esq., the Respondent adopted the three issues formulated by the Appellants.
In the meantime, the Appellants, upon the receipt of the Respondents Brief, filed an Appellants Reply Brief on the 13th day of November, 2017. I have perused this Reply Brief and discovered that it is simply a re-argument of the appeal raising new issues; citing various provisions of the Service Agreement, Exhibit L; statutory and decided authorities. It looks like an attempt to overreach which is not permissible in law. There must be end to litigation. I will discountenance the Reply Brief in the consideration of this appeal.
ISSUE 1
It is submitted for the Appellants that the learned trial Judge failed to properly evaluate the evidence of the parties before him and thereby arrived at a wrong conclusion, leading to a miscarriage of justice. Reference is made to pages 306 and 307 of the record of appeal (Now referred to as The Record). It is submitted that since the trial Court had earlier refused the application for an interlocutory injunction, the need to vacate the Order for interlocutory injunction made earlier is hereby vacated does not arise.
So also is the order directing the Appellants- to vacate the Defendants NPA Gate Service Station along Industry Road, Port Harcourt with immediate effect. The question is asked whether the trial Court properly evaluated the evidence before it when it arrived at the conclusion that the Appellants are not entitled to damages for forceful and unlawful eviction from the service Station. It is contended that the trial Court refused to admit the pictures of damaged properties that were damaged on the day the Respondent invaded the Service Station on the ground that they were not pleaded, but it was eloquently pleaded in paragraph 24 of the Amended Statement of Claim that reliance would be placed on the Photographs taken at the scene during the invasion by the Respondent. It is submitted that if the photographs had been admitted, the trial Court would have been in a position to assess the level of damages and the extent of the force applied by the Respondent to forcefully evict the Appellants from the service station. It is submitted that the photographs sought to be tendered but rejected by the Court were the property of Late Chief M. I. Okonkwo which were damaged.
It is the contention of the Appellant that pleading is a succinct statement of fact in a summary form, or is not evidence and it needs not give all the details of late Chief M. I. Okonkwos property that were damaged, it is sufficient to state that several properties were damaged. It is the evidence that is supposed to contain the details of the damaged property. It is the submission of learned counsel for the Appellants that the purposes of pleadings is to give notice to the opposing party the nature of the case he is to prepare for before the Court, citing RAMONU ATOLAGBE V. KOREDE OLAYEMI (1985) 4 S. C. (PT. 1) 250 @ 260; and GEORGE & ORS. V. DOMINION FLOUR MILLS LTD (1963) 1 ALL NLR @ 71. Our attention is drawn to the fact that the photographs of goods loaded and carted away by the Respondent were tendered and admitted as Exhibits M – M6 and that there was no cogent evidence in rebuttal except mere denial by the Respondent of not damaging the property or taking away the money or property in question. The trial Court, it is contended, did not properly evaluate this evidence and that if it did, it would have taken into consideration
Exhibits M M6 which readily disclosed the damaged property. It is submitted that the trial Court wrongly rejected the pictures of late Chief Okonkwo claimed by the Respondent during its invasion and eviction of the Appellants from the service station, and that the law is that a piece of evidence rejected by the trial Court may be admitted by the appellate Court upon consideration that justice demands it ought to have been admitted in the first place. This Court is urged to admit the pictures of Late Chief Okonkwo in evidence and that it be weighed against the evidence of the Respondent which was considered as being cogent.
A large part of the Appellants Brief is devoted to the narrative of the event of 30/5/2008 when the Respondent took over the service station. There is the story of the threat by the Respondent to forcefully eject the Appellants from the service station followed by the evidence that the threat was carried out on 30/5/2008. It is submitted that the evidence remains unchallenged which means that the pieces of evidence have been admitted by the Respondent, citing IGBINOVIA & ORS V. AGBOIFO (2002) FWLR (PT. 103) 505 @ 514.
Another part of the narrative is about what the Appellants refer to as conflict in the evidence of the Respondents sole witness, the DW1. It is submitted that if the trial Court had properly evaluated the evidence, it would have been apparent to it that there are conflicts in the evidence of the Respondent. It is submitted that the trial Court failed in its primary duty to properly evaluate the evidence before it. Reliance is placed on NNACHI V. ONUORAH (2011) 22 WRN 77; and ODI V. IYALA (2004) 27 WRN 1, in submitting that the appellate Court can interfere with the finding of the trial Court to see that substantial justice is done in the matter.
It is submitted that the fact that the Respondent forcefully entered the service station to terminate the Agreement without serving the Appellants a written Notice as provided in the Service Agreement of 2005 is in total breach of clause 18.3 of the said Service Agreement. It is further submitted that as at 30/5/2008 when the Respondent forcefully took over the Service Station the 2005 Renewal Agreement had not expired. It is the submission of learned counsel for the Appellants that this issue was not considered by the trial Court, citing YUSUF V. ADEGOKE (2008) 40 WRN 1 @ 36.
It is submitted that the trial Court did not make any finding or pronouncement on the issue of criminal nature of the pleading and evidence not led in proof beyond reasonable doubt of the alleged fraudulent smuggling of the 2nd Appellants signature into Exhibit L, before arriving at the conclusion that the 2nd Appellant was not a party to the said Agreement. The trial Court is accused of double standard in applying this principle equally to both parties. Reliance is placed on BUHARI V. OBASANJO [2005] 2 NWLR (PT. 910) 416. The trial Court is also accused of descending to the arena to make a case for the Respondent by impacting clause 18 contained in Exhibit L into Exhibit C1.
With regard to the entitlement of late Chief Okonkwo upon the termination of the Service Agreement consequent upon his death, it is submitted that the trial Court was wrong to have limited such entitlements to the amount admitted by the Respondent. It is also submitted that that Court was wrong to have admitted Exhibits R and R1 in evidence because they were made by one of the parties interested in the suit during the pendency of the suit. It is submitted that DW1 was unable to substantiate his claim that late Chief Okonkwo had withdrawn his deposit amounting to N4,622,144.80. It is also submitted that the Respondent was unable to disprove the Appellants Claim.
This Court is urged to re-evaluate the evidence and hold that the Appellants are entitled to the Sum of N4,622,140.80 being Chief M. I. Okonkwos deposit with the Respondent, the sum of money unduly deducted wrongly as tax from the money deposited for the supply of Petroleum products, the sum of N180,000.00 being rebate for February, 2008 and the sum of N201,000.00 being the amount of money for the Petroleum products left in the underground tank all of which were admitted by the Respondent.
ISSUE 2
It is submitted that it was wrong for the trial Court to have refused to award general damages against the Respondent for the forceful ejection of the Appellants from the NPA Service Station, which was carried out in an illegal, unlawful manner and as an affront to the rule of law and which resulted to substantial damages incurred by the Appellants.
It is submitted that the Respondent admitted that the Appellants are the successors of Late Chief M. I. Okonkwo who are entitled to his estate but insisted that they could only exercise their right upon presentation of a letter of administration since Chief M. I. Okonkwo died intestate.
It is contended that the 2nd Appellant was a party to the contract and that the trial Court which held that Late Chief M. I. Okonkwo, whose name was inserted at first page of the contract paper, to be the actual person that entered into the contract with the Respondent. Learned Counsel adopts his submission on issue 1 regarding the contention that the 2nd Appellant was the actual party that entered into the contract. It submitted that the 2nd Appellant as a licensee to the NPA Service Station, even as a successor to the estate of Chief M. I. Okonkwo, is entitled to damages for forceful eviction, having not been given notice and reasonable time to remove their chattels and property from the Service Station. Reference is made to the evidence of the 2nd Appellant; that of the 1st Appellant; and that of Prince Okey Ndukwe at pages 70, 71, 76, and relief sought at page 77; and page 82 of the record of appeal.
Reference is also made to the evidence of Igwe Augustine at page 79 of the record, including Exhibits M-M6, to show that chattels and properties of the Appellants were catered away by the agents of the Respondent. It is submitted that despite the inundating evidence before it, the trial Court did not deem it fit to consider the issue to damages claimed by the Appellants as being meritorious but went ahead to dismiss the suit as lacking merit. It is submitted that the Respondent could not rebut the overwhelming evidence of the Appellant in this regard other than mere denial that none of its staff removed anything from the NPA Service Station on the said 30/5/2008. It is submitted that the 2nd Appellant being a licensee to the Respondent cannot be considered a trespasser. Reliance is placed on WINTER V. BROCKWELL & EAST 308; E. R. 359. In the circumstance, it is submitted that it was wrong in law for the trial Court to have dismissed the claim for damages.
On this issue, learned counsel for the Appellants calls on this Court to nullify the entire proceedings before the trial Court on the ground that that Court granted a relief not sought by any of the parties before it. Many authorities are cited in that behalf, including MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR 587; BRONIK MOTORS LTD V. WEMA BANK LTD (1983) 6 S.C. 158; EKPENYONG V. NYONG (2003) 51 WRN 44; (1975) 2 S. C. 71; etc.
It is submitted that the trial Court had acted without jurisdiction and its proceedings should be nullified in its entirety.
This Court is finally urged to:-
1. Set aside the Order of dismissal of the suit and the order directing the Appellants to vacate the NPA Gate Service Station with immediate effect.
2. Award the sum of N4,622,144.80 being Chief M. I. Okonkwos deposit with the Defendant (Sic) and the money unduly deducted and wrongly as tax from the money deposited for the supply of Petroleum Products.
3. Award the sum of N5,000,000.00 as general damages occasioned by the Defendants (Sic) illegal and unlawful trespass to the Service Station on 27/5/2008 (Sic).
As stated earlier in this judgment, the Respondent adopts the three issues formulated by the Appellant.
ISSUE 1
It is submitted that the trial Court came to that right conclusion and decision dismissing the Appellants heads of claims after properly evaluating all the oral and documentary evidence adduced by both parties before it.
It is submitted for the Respondent that the case at the trial Court was grounded on and fought mainly on documentary evidence submitted by the parties. It is submitted that the case of the Appellants was that the Service Contract was between the 2nd Appellant, and the Respondent and to this end, the Appellants tendered the three Service agreements Exhibits C, C1, and L in proof of their assertion. The Respondent not only denied this assertion, it also relied on the same Exhibits C, C1, and L in proof of the fact that the Appellants were not only total strangers to the said Service Contract, but also that the contract expired and was determined by the death of the Late Chief M. I. Okonkwo. It is submitted that the learned trial Judge analysed and evaluated all these documents and the viva voce evidence of the witnesses before arriving at his final decision on the subject matter. It is submitted that the learned trial Judge rightly held that the only exact Service Agreement dealing with the Respondents NPA Gate Service Station as at 2008 when this action was filed was the one dated 10th July, 2009 (Exhibit C1), and that it was duly entered into between the Respondent and one Chief M. I. Okonkwo and not the Appellants. It is submitted that the learned trial Judge reached this conclusion after taking a cursory look at Exhibits C, C1, and L, the unchallenged Written Deposition on Oath of DW1 and the oral evidence of the 2nd Appellant under Cross-examination at pages 407 to 409 of the Additional Record of Appeal.
It is submitted that Exhibit L was the first Service Agreement entered between the Respondent and Chief M. I. Okonkwo and it expired on the 31st day of July 2006. At its expiration, the Respondent wrote Exhibit C to the said Late Chief M. I. Okonkwo renewing the Service Agreement. This agreement expired on the 31st day of July, 2007. At the expiration of Exhibit C, the Respondent made Exhibit C1 renewing the Service Agreement from 1st day of August, 2007 and to expire on 31st day of July, 2008. It is submitted that aside incorporating the terms of Exhibit L, Exhibits C and C1 renewed the Service Agreement with Chief M. I. Okonkwo to the exclusion of all other.
The parties therein were expressly stated as Chief M. I. Okonkwo and the Respondent. It is submitted that the learned trial Judge rightly evaluated all the documentary and oral evidence before him. Reference is made to pages 388 to 389 of the record of appeal.
It is submitted that the submissions of learned counsel for the Appellants that the learned trial Judges finding that the 2nd Appellant was not a party to Exhibit L was based on Respondents contention that the said 2nd Appellants signature was fraudulently smuggled into the Agreement, is totally misguided. It is submitted that the onus to prove that the 2nd Appellant is party to the said Agreement lies squarely on the Appellants who asserted same in their pleadings. This the trial Court found they have failed to prove including the admission of the 2nd Appellant under Cross-examination to the effect that he was not a party to the said Service Agreement. It is contended that in the face of this admission by the 2nd Appellant and other pieces of evidence, the trial Court could not have held otherwise than to say that the said signature of the 2nd Appellant was either fraudulently or mistakenly smuggled into the agreement.
It is contended that there is no other evidence as to how the said signature came into the document. This more so, when the 2nd Appellant admitted that he was never appointed as a dealer; never did business with Respondent in respect of the Service Station, and that his father, Late Chief M. I. Okonkwo, was the dealer appointed by the Respondent in respect of the service station.
As to when and how the Service Agreement terminated, it is submitted that the trial Court rightly held that Exhibit C1 was the Service Agreement in existence as at February, 2008 when Chief M. I. Okonkwo died. It is submitted that the trial Court evaluated the contents of Exhibit C1 and held that the contents thereof incorporated the terms of Exhibit L as to the mode and manner of determining the Service Agreement which expressly provided in Clause 18.2 that the Service contract shall terminate upon the death of the Operator.
It is submitted that the words of clause 18 are very clear, explicit and unambiguous and that was the reason the trial Judge gave it its natural and ordinary meaning.
Reliance is placed on ORHIUNU V. FRN [2005] 1 NWLR (Pt. 906) 39 @ 58 to 59. It is submitted that the Contract was terminated on the 24th February, 2008 when the Operator, Chief M. I. Okonkwo died, and the Agreement, being a service and personal in nature to Chief M. I. Okonkwo, did not in any way survive him and neither could a service contract of this nature in law be passed onto the estate of Late Chief M. I. Okonkwo or the Appellants. There is nothing in the Agreement resting any right on the Appellants or even Late Chief M. I. Okonkwo (if he were alive), such as will entitle them to remain in possession and management of the Respondents NPA Gate Service Station.
It is submitted that under the Agreement, Chief M. I. Okonkwo was only a licensee of the Respondent for the sole purpose of selling the Respondents products, and that the right to occupy was not only made non-exclusive and personal, but the Service Station at all times during the term therein created remained the absolute property and in the sole possession of the Respondent. Reference is made to Clauses 3. 2. 2. and 5.1. 1. of Exhibit L.
It is submitted that the contention of the learned counsel for the Appellants that the trial Court refused to admitt the Pictures of damaged properties in evidence, on the ground that they were not pleaded, was made in bad faith. This is because the pictures were tendered through Mr. Prince Oweh Ndukwe who testified for the Appellants as CW2 and they were admitted in evidence as Exhibit M without objection on the 29th of July, 2008. He was also cross-examined on the pictures. Reference is made to pages 315 to 317 of the record of appeal. It is further submitted that it was an enlarged photograph of Chief M. I. Okonkwo that the trial Court did not admit in evidence because it was not pleaded. Reference is made to page 312 of the record of appeal, citing OKONJI V. NJOKANMA [1999] 14 NWLR (PT. 638) 250 where the Supreme Court gave the criteria governing admissibility of a document in evidence as:
(a) Is the document pleaded;
(b) Is it relevant to the inquiry being tried by the Court and
(c) Is it admissible in law
It is submitted that the Appellants failed woefully to fulfil the above stated conditions at the trial Court. According to the learned Court for the Respondent, assuming, but not conceding, that the enlarged pictures were pleaded and that trial Court refused to admit same in evidence, the admission or non-admission of the enlarged pictures would not have changed the character of the judgment in any form.
As for the monetary claims, it is submitted that special damages must be specifically pleaded, claimed and proved with credible evidence, as held by the Supreme Court in ADECENTRO (NIG) LTD V. COUNCIL OF OBAFEMI AWOLOWO UNIVERSITY [2005] 15 NWLR (PT. 948) 290 @ 316; (2005) LPELR -84 (SC). It is submitted that a cursory look at the Appellants claims before the trial Court, as endorsed in paragraph 26 of the Amended Statement of Claim, items (c) to (e), show that outside the heads of claim specifically admitted by the Respondent in its Amended Statement of Defence, the Appellants failed woefully to specifically plead and prove with credible evidence all the other heads of claim contained therein, including those touching on criminal allegation which ought to be proved beyond reasonable doubt.
With regard to the claim for N4,622,144.80 as outstanding compulsory deposit in the balance of Late Chief M. I. Okonkwo’s account with the Respondent, it is explained that the amount represents cumulative deposits of various sums of movies including rebates paid by Chief M. I. Okonkwo for the sole purpose of buying petroleum products from the Respondent. It is also stated that Exhibit R1 (Documents A1 to A4) tendered through DW1 is a detailed computer printout of Late Chief M. I. Okonkwos Account and Transactions for the period covering when the said N4,622,144.80 were reflected in the said account, as shown on Exhibit G and the products sold to the Late Chief M. I. Okonkwo on account of the said payment. Exhibit G was tendered by the Appellants. It is submitted that the Appellants did not only fail in their objection to the admissibility of Exhibit R in evidence, they also failed to challenge the evidence contained in the said exhibit, hence their failure to prove this head of special claim. It is submitted that a document containing statements which had been stored in a computer prior to the commencement of a suit, but was printed out during the pendency of the suit is not caught up by the Provisions of Section 91(5) of the Evidence Act and, consequently, it is admissible in evidence. Reliance is placed on TRADE BANK PLC V. CHAMI [2003] 13 NWLR (PT. 836) 158 @ 172. It is submitted that the trial Court was right to have admitted Exhibit R in evidence since its contents were not fed into the computer during the pendency of the action.
On the Claims for the sum of N908,640.00 being the amount of money stolen by the Respondents employees when they broke into the safe inside the station; and the claim for N6,091,360.00 for Lubes, drinks and other properties that were purportedly either removed or damaged by the Respondent, it is submitted that the trial Court rightly rejected the two heads of claim because the Appellants were unable to specifically prove them. The claim for the money allegedly stolen requires a proof beyond reasonable doubt because the claim is of criminal nature. As for the second claim, there was no evidence as to the exact quantity or number of cartons of Lube or drinks damaged or carted away. There was no evidence as to their cost. It is submitted the CW3 who tendered several pictures did not identify anybody in the pictures tendered by him as staff of the Respondent.
In fact under cross-examination, DW1 admitted, categorically, that none of the people in the said pictures works for the Respondent and that it is only in Exhibit M4 that his colleague, Mr.Imohen, appeared. It is submitted that the said Exhibit M4 did not show Mr. Imohen destroying, damaging, removing or stealing anything.
It is submitted there is no piece of evidence in support of the sum of N556,000.00 claimed by the Appellants as monthly rebate from February, 2008 till they are reinstated to the station. It is submitted CW3 admitted under cross-examination that rebates are sums earned on actual products sold by the Dealer/Operator on behalf of the Respondent. Under cross-examination, the Appellants and CW3 who was the Station Manager, admitted that they have not sold a single product on the Respondents behest since February, 2008.
On the issue of the claim of N768,000.00 for the period of Eight (8) years beginning from 2000 to 2008 as salary for Lube Expert (Mr. Duabary Azaka) who the Appellants claimed was employed by Late Chief M. I. Okonkwo at the instance of the Respondent, it is submitted, for the Respondent, that outside the above fact and repeating same in their Written Depositions on Oath, no credible evidence was offered in proof of the allegation. No agreement or letter to that effect was tendered and the said Duabary Azaka was not called as a witness. Reliance is placed on NIGERIAN GAS CO. LTD V. DUDUSOLA [2005] 18 NWLR (PT.957) 292 @ 316. Reference is made to the evidence of DW1 at page 203 of the record of appeal denying this head of claim, and to Clause 13.1, 13.2, 13.3, 13.4 and 13.5 of the terms of the Service Agreement as shown on page 23 of the record of appeal.
With regard to the Appellants claim for interest at 25% per annum on the judgment until final liquidation of the judgment sum, it is submitted that no credible evidence was led showing how the Appellants are entitled to such claim which is over and above the 10% provided by Rules of the trial Court. This Court is urged to resolve this issue in favour of the Respondent.
ISSUE TWO
It is submitted that based on the state of the facts and evidence adduced before the trial Court, the trial Court rightly rejected the Appellants claim for general damages in the sum of N5,000,000.00. It is submitted that this claim was not tied to forceful ejection, contrary to the submission of learned counsel for the Appellants in paragraph 4.11 to 4.1.10 of the Appellants Brief of Argument. It is further submitted that general damages are such as the Court may grant where there is no measure by which can one to be assessed except in the opinion and judgment of a reasonable man and that it is granted in respect of breach or violation of a legal right, but the facts relating thereto must be pleaded and proved, citing the case of ACME BUILDERS LTD V. KSWB [1999] 2 NWLR (PT. 590) 288 @ 293. It is submitted that the Appellants did not make out any case to entitle them to any general damages, this is so because by the death of Chief M. I. Okonkwo, the 2007 Service Agreement was duly terminated by virtue of the provisions of Clause 18 of Exhibit L. Also by Clauses 3.2.2 and 5.1.1. of Exhibit L, the Appellants were never in possession of the Service Station, and the Operator was permitted to occupy the station as a licensee for the sole purpose of selling the Respondents products. It is submitted that the right to occupy was not only made non-exclusive and personal but the Service Station at all times during the terms therein created remained the absolute property and in the sole possession of the Respondent.
It is finally submitted that the trial Court rightly assessed all the evidence placed before it and there is no reason whatsoever for this Court to interfere with its findings on facts and law, and that the trial Court acted within its judicial vires in not granting the damages claimed by the Appellants, and in granting to them the sum of N4,183,917.30 based on admission of same by the Respondent less all relevant charges.
ISSUE THREE
It is submitted, for the Respondent, that the injunctive order made in the judgment of the trial Court was a consequential order which naturally flew from its judgment and it need not be specifically sought and its aim is to protect the Respondents title to the Service Station. Reliance is placed on ILONA V. IDAKWO [2003] 11 NWLR (PT. 830) 53; AKEEM V. UNIVERSITY OF IBADAN [2003] 10 NWLR (PT. 829) 584; DANTSOHO V. MOHAMMED [2003] 6 NWLR (PT. 817) 457 @ 473.
That is the totality of the case of the parties in this appeal from the state of the briefs of the parties, I will have to determine issue Three first, having been fought on the ground of jurisdiction.
The law is trite that wherever the issue of jurisdiction is raised in a litigation, the issue has to be determined first before going into the merit of the case. This is so because jurisdiction is the threshold issue to adjudication. A proceeding, no matter how well conducted and brilliantly decided, is a nullity if conducted without jurisdiction.
What the Appellants challenge is the trial Courts order directing them to vacate the Service Station with immediate effect they argued that this relief was not sought by any of the parties. It is further argued that the order was made without jurisdiction, and therefore, rendered the entire proceedings a nullity.
The Respondent, on the other hand, has argued that it was a consequential order naturally flowing from the judgment of the trial Court in order to protect the Respondents title.
There is no doubt that the order was ultra vires the trial Court since none of the parties before it asked for such a relief. The trial Court acted without jurisdiction in making the order not sought by any of the parties before it.
I find as strange and untenable the submission by the learned counsel for the Appellants to the effect that entire proceedings should be adjudged a nullity because of this particular order. He wants the baby to be thrown away together with the bath-water. This was an order in isolation and it was made by the learned trial Judge after deciding the case before him on its merit. I do not see how this single order will affect the entire case. A consequential order may be wrong without necessarily affecting the merit of the judgment appealed against. If the appellate Court finds the order to have been made without jurisdiction, it will nullify the order and set same aside. It will then consider the judgment on its merit. That is the situation that has acted out in the instant case. In P.D.P. V. EZEONWUKA [2008] 3 NWLR (PT. 1606) 187 @ 244, the Supreme Court held, per KEKERE-EKUN, J.S.C. that-
The effect of an order made without jurisdiction is that it is a nullity. In the instant case, the Court of Appeal lacked jurisdiction to make an order directing INEC to conduct a re-run Election with the 1st Respondent as the candidate of PDP. Firstly, the Court has no jurisdiction to impose a candidate on a political party. Secondly, there was no such relief sought by any of the parties before it ..
Based on this authority, I do hereby set aside the order of the trial Court directing the Appellants to vacate the Service Station with immediate effect, the order being a nullity for having been made without jurisdiction.
Now coming to the main appeal, I will treat issues One and Two together because they are inter-woven and because learned counsel for the Appellants sought to rely on his submissions in support of issue one in arguing a greater part of issue Two.
It is significant to cast a look at the reliefs sought by the Appellant in their brief of argument. This is so because the reliefs sought at page 23 of the brief have narrowed down what is expected by the Appellants to be considered in this judgment. Paragraph 6.0 of the brief reads as follows:-
6.0 CONCLUSION:-
Based on the foregoing arguments adumbrated in support of the issues raised for the determination of this Court, we urge your Lordships to:
- To set aside the Order of dismissal of the suit and the order directing the Appellants to vacate the NPA Gate Service Station with immediate effect.
2. To award the sum of N4,622,144.80 being Chief M. I. Okonkwos deposit with the Defendant and the Money unduly deducted wrongly as tax from the money deposited for the supply of Petroleum Products.
3. To award the sum of N5,000,000.00 as general damages occasioned by the Defendants illegal and unlawful trespass to the Service Station on 27/5/2008.
The reliefs being claim have accord with the reliefs being claimed in paragraph 4 of the Amended Notice of Appeal. The implication of this is that the Appellants have shifted ground and they are by law deemed to have abandoned parts of their claims before the trial Court. The monetary claims of the Appellants against the Respondent in the trial Court are clearly stated in paragraph 26 (c), (d), (e) and (f) of the Amended Statement of Claim. I reproduce same here us follows:-
(c) An Order directing the defendant to pay to the Claimants the sum of N4,005,000.00 they paid to the Defendant for the supply of Petroleum Products, the outstanding deposit balance of N4,622,144.80 in Chief M. I. Okonkwos Account with the Defendant, the sum of N201,000.00 for underground Petroleum (Sic) stocked at the Station, the sum of N905,640.00 being the amount of money the Defendants employees removed from the claimants underground save when they invaded (Sic) the Service Station on 30/5/2008 and the sum of N6,091,360.00 for the Lubes, Drinks and other properties which were either removed or damaged by the Defendants Servants.
(d) The sum of N556,000.00 as Rebate per month beginning from the month of February, 2008 until the time of the judgment of this Suit and the sum of N768,000.00 for the period of eight years as Lube-Expert salary for Mr. Duabary Azaka beginning from January, 2000 to 2008.
(e) Interest at the rate of 25% per annum on the total judgment debt until final liquidation of the judgment sum.
(f) The sum of N5,000,000.00 as general damages.
Both in the Amended Notice of Appeal and the Appellants Brief of Argument, only the sum of N4,622,144.80 being the outstanding deposit balance in Chief M. I. Okonkwos account with the Respondent; and the sum of N5,000,000.00 as general damages are now being claimed by the Appellants as monetary claims.
To this end, all other monetary claims stated in the body of the Appellants Brief are deemed to have been abandoned and they are accordingly hereby struck out.
What remains to be considered with regard to issue One and Two is whether the Appellants were forcefully or unlawfully ejected from the NPA Gate Service Station, and whether the Respondent withheld any sum of N4,622,144.80 to which Chief M. I. Okonkwo was entitled upon termination of the Service Agreement. The claim for general damages is lunged on the claim that the 2nd Appellant was a party to the Service Agreement, Exhibit L, as Operator who was forcefully and unlawfully ejected from the NPA Gate Service Station. The claim for N4,622,144.80 was based on a claim by the Appellants that this amount represented the deposit of the Late Chief M. I. Okonkwo with the Respondent which the later withheld.
The Appellants relied on Exhibit L to contend that the Service Agreement was between, the 2nd Appellant and the Respondent, while the Respondent also placed reliance on the same Exhibit. The learned trial Judge said at page 388 of the record of appeal that-
A close scrutiny of Exhibit L shows that it is handed on the cover page as follows:-
Service Station Operating Agreement Between Mobil Oil Nig. Plc AND Chief Okonkwo.
This document was made on 1st August, 2005 and the name of the operator as indicated on page 1 of Exhibit L is Chief M. I. Okonkwo. Curiously, the person that signed at the signature column for the operator is one master Okonkwo Emmanuel the 2nd Claimant. This appears to be the basis for the claim of the Claimants that the person that contracted with the defendant is the 2nd Claimant and not Late Chief M. I. Okonkwo.”
The learned trial Judge then drew attention to the arguments of learned counsel for the Respondent where he had contended that the signature of the 2nd Appellant was fraudulently smuggled into the agreement because both the 1st and 2nd Appellant, as CW1 and CW2, had testified under cross-examination that prior to 2005 and until his death, the Late Chief M. I. Okonkwo had been the dealer of the Respondent at the disputed filling Station. And moreso, the 2nd Appellant had admitted under cross-examination that he was not competent to sign, or to enter into, the agreement as he was under 30 years of age as at the date of its execution, pursuant to Clause 2.1 of Exhibit L.
The learned trial Judge also observed that on page 35 of Exhibit L, the person that signed indicated his title as master and that it is common knowledge that the title master is usually used for or by persons who are minors. He also observed that in schedules 3 of Exhibit L, precisely on page 43, the 2nd Appellant signed as witness while a different person signed as the operator. His Lordship also observed that Exhibit C renewed Exhibit L for another 12 months and it was addressed to Chief M. I. Okonkwo, and Chief M. I. Okonkwo also accepted the offer, while the 2nd Appellant was not mentioned at all. He went further to observe that by Exhibit C1, the agreement was further renewed from August 01 2007 to July 31, 2008. He then held that by implication, as at the time of institution of this action, Exhibit C1 was the subsisting agreement between Chief M. I. Okonkwo and the Respondent and that he agreed with the learned counsel for the Respondent that the 2nd Appellants signature was either fraudulently or mistakenly included in Exhibit L.
On this point, the learned trial Judge found as follows:-
From the state of pleadings, the evidence adduced, both oral and documentary, the party that entered into the Service Station Agreement (Exhibit L) was Chief M. I. Okonkwo who had been the dealer prior to 2005. I therefore find as a fact that the 2nd Claimant is not and had never been a dealer of the defendant. I am re-inforced in this view by the fact that after his fathers death, the 2nd Claimant wrote Exhibit D to the defendant. In paragraph 1 of Exhibit D the 2nd claimant wrote as follows:-
I Engr. Emmanuel Okechukwu Okonkwo, the 1st son of Chief M. I. Okonkwo, the dealer in charge of NPA Gate Mobil Oil Service Station, Port Harcourt.
In Exhibit D, the 2nd Claimant informed the Defendant that his father Chief M. I. Okonkwo died on 24/2/2008, and also sought the permission of the Defendant to continue running the station in the stead of his father.
The question is if the 2nd Claimant is the dealer that contracted with the defendant why would he still apply to the defendant to continue running the station which he acknowledged his father is the dealer.”
The Appellants have argued strenuously that the learned trial Judge did not properly evaluate the evidence adduced by the two sides and thereby arrived at a wrong decision. He also contends that the allegation that the signature of the 2nd Appellant was either fraudulently or mistakenly smuggled into Exhibit should have been proved beyond reasonable doubt because the allegation is of criminal nature.
I do not agree with the learned counsel for the Appellants that the learned trial Judge did not properly evaluate the evidence placed before him. From the quotations here above, the learned trial Judge has properly, meticulously and adequately evaluated the evidence adduced by the parties before him. I find his evaluation of evidence to be unassailable.
With regard to the complaint that the issue of fraud alluded to by the Respondent should be proved beyond reasonable doubt. This has already been done by the combined effect of pages 35 and 43 of Exhibit L read together with the front page and page 1 of the same Exhibit and the contents of Exhibit D. All these put together proved beyond reasonable doubt that a fraud had been committed in the execution of Exhibit L. The story would have been different if there was acknowledgement and grant of the request made in Exhibit Q, but there was none. Signature on page 35 of Exhibit L cannot be an answer to Exhibit Q.
I agree entirely with the learned trial Judge that Exhibit L was entered into by Chief M. I. Okonkwo with the Respondent, and that the 2nd Appellant was not a party to the agreement. This position is re-inforced by the fact that both Exhibit C and Exhibit C1 made subsequent to Exhibit L did not find a place to mention the name of the 2nd Appellant. For avoidance of doubt, I hold that the 2nd Appellant was not a party to Exhibit L or any Service Operation Agreement with the Respondent.
In consonance with the proper finding by the trial Court, the Service Agreement was determined with the death of Chief M. I. Okonkwo on the 24th day of February, 2008. This is pursuant to the provision of Clause 18 of Exhibit L which states thus:
This contract shall automatically terminate if the Operator dies.”
Clause 18:4.2 further provides that-
Upon expiry or earlier termination of this agreement, the company shall be entitled to operate the Station for its own account or to make such other arrangement for its operation at its sole discretion.”
These provisions put a PAID to the issue of the 2nd Appellant being a dealer of the Defendant at its NPA Gate Service Station. The penultimate response by the 1st Appellant, as CW1, to the cross-examination by the defence counsel Yuns thus:
The filling station at NPA Gate belongs to the defendant. My husband has an agreement with the defendant. I am aware of the 2005 agreement my husband had with the defendant.”
It is instructive to observe that the 1st Appellant did not mention her son, the 2nd Appellant, as a party to the agreement, rather, she was emphatic that the agreement was between her husband, Chief M. I. Okonkwo and the Respondent. She was not re-examined on this crucial point which formed the very basis of the Appellants action before the trial Court. The response aforesaid is an admission against interest and I so hold.
To prove forceful ejection from the NPA Gate Service Station by the Respondent, Exhibits M to M6 was tendered in evidence when confronted with the pictures, Exhibit M, the CW2 admitted not seeing any agent of the Respondent damaging any property. This was under cross-examination. He also admitted that none of the pictures depicted any agent of the Respondent carting away any property belonging to the Appellants.
All this was after the Appellants have admitted that they never entered into any Service Agreement with the Respondent. They insist that they were entitled to notice of the take-over by the Respondent while the Respondent also insists that only the Late Chief M. I. Okonkwo was their licence and not the Appellant. In the evidence of the 1st Appellant, as the CW1, she stated that the Respondent wrote a letter to them (Appellants) inviting them to the Station to enable them (Respondent) take over the Station. She also stated that a message to that effect was also sent. In response, she went to the station to lock it with a padlock and went to report a threat at a Police Station.
42
The Respondents representative later went to the Station on the 30th day of May, 2008 to take over the Station, accompanied by Policemen. All the agreements, that the 2nd Appellant was a party to Exhibit L and was entitled to notice during the currency of the Agreement, go to naught because I have earlier in this judgment agreed with the learned trial Judge that the 2nd Appellant was not a party to the Agreement.
Paragraphs 4.1.7 and 4.1.8. of the Appellants Brief of Argument are in bad taste. It beats ones imagination why the learned counsel for the Appellants will argue that Exhibits M M6 show how the Respondent vandalised the properties of the Appellants and that the Appellants sold petroleum products, lubricant oil, and operated a super market at the Station after his client had admitted under cross-examination that they did not sell anything there after the death of Chief M. I. Okonkwo.
All-in-all, the Appellants failed to prove damages to vandalisation, and or carting away of their properties by the Respondent and/or its agents. This failure robs the Appellants the award of damages, special or general.
The Appellants are unfair to the learned trial Judge to have contended that he failed to discharge his duty by failing to give any consideration to the claim for damages arising from their forceful ejection from the NPA Service Station on 30/5/2008. It is clear that his Lordship gave a consideration to the claim for damages and held it to be unproven.
I hold that the learned trial Judge properly and adequately evaluated the evidence adduced by the parties before him and came to right conclusion and decision. I see no need to interfere with his findings and conclusions which are sound in law. The findings are not perverse and do not occasion a miscarriage of justice as the learned counsel for the Appellants want us to believe.
I must not end this judgment without saying a word or two on the issue of the enlarged photographs that were tendered by the Appellant but rejected by the trial Court. Learned counsel for the Appellant has made a big case of it to the extent that if the enlarged photographs had been admitted, the trial Court would have come to a different decision and would have awarded damages.
The learned counsel at a stage of his argument, gave the impression as if the enlarged photographs were one and the same that were snapped at the Station. The Photographs allegedly stapled together with their negatives (films) were already admitted in evidence as Exhibits M M6. The trial Court refused to admitted the enlarged photographs because they were not pleaded. The Appellants were unable to show where the photographs were pleaded. There was no evidence as to where and how the photographs were acquired by the Appellants. If they were already forcefully ejected from the Station, there will be need to explain when the photographs came to their possession, this they failed to state.
The Appellants are aptly described by the Respondents as gold diggers.
This appeal, just as the action at the trial Court, lacks merit. It is accordingly hereby dismissed.
Cost assessed at N60,000.00 (Sixty Thousand Naira) is awarded against the Appellants in favour of the Respondent.
Since the Appellants have admitted that the Respondent is already in full possession of the Service Station, there is no need to make any order in respect thereof.
The decision of the trial Court, contained in the Judgment of Hon. Justice A. W. Jumbo, delivered on the 9th day of June, 2009, in Suit No. PHC/827/2008 is hereby affirmed.
FATIMA OMORO AKINBAMI, J.C.A.: I agree
PAUL OBI ELECHI, J.C.A.: I agree
Appearances:
J.C. Idoko, Esq.For Appellant(s)
Bew Amego, Esq.For Respondent(s)
Appearances
J.C. Idoko, Esq.For Appellant
AND
Bew Amego, Esq.For Respondent