MULTI-TRADE ECOLOGY LIMITED v. POWERNOTH-AICL EQUIPMENTS COMPANY LIMITED
(2018)LCN/12099(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 30th day of October, 2018
CA/L/1157/2017
RATIO
ACTION: WHETHER A COURT CAN GRANT RELIEF NOT CLAIMED
“When properly contextualized, the quodlibet in this matter falls within a very narrow compass. I have already set out the reliefs claimed by the Respondent in the Further Amended Statement of Claim. The principal relief claimed by the Respondent is for a declaration that the Appellant breached the terms of the equipment lease agreement dated 9th September, 2011 and that consequent upon this breach the Appellant is liable in damages to the Respondent. For clarity, I will reproduce these principal reliefs as claimed in paragraph 26 (a) and (b) of the Further Amended Statement of Claim. They read: “(a) A declaration that the Defendant has breached the terms of the equipment lease agreement Dated 9th September 2011 between itself and the Claimant herein. (b) A declaration that the Defendant is liable to the Claimant in damages for breaching the terms of the equipment lease agreement dated 9th day of September 2011 and to pay all its debts to the Claimant.” (See page 189 of the Records) The other reliefs claimed by the Respondent are like leeches as their success is dependent on the success of the principal relief that the Appellant is in breach of the equipment lease agreement dated 9th September, 2011. Where the principal relief does not succeed, the concomitance would be that the other reliefs would equally fail. The legal principle being sublato principali tollitur adjunctum (co. Litt. 389) [the principal being taken away, the adjunct is also taken away]: ADEGOKE MOTORS vs. ADESANYA (1989) 3 NWLR (PT 109) 250 at 269.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICES
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
MULTI-TRADE ECOLOGY LTD Appellant(s)
AND
POWERNOTH-AICL EQUIPMENTS CO. LTD Respondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the High Court of Lagos State delivered by Sonaike, J. on 23rd June 2017. The Respondent, as Claimant before the lower Court claimed the following reliefs by its Further Amended Statement of Claim:
WHEREOF the Claimant claims against the Defendant as follows:
(a) A declaration that the Defendant has breached the terms of the equipment lease agreement Dated 9th of September 2011 between 2011 between itself and the Claimant herein.
(b) A declaration that the Defendant is liable to the Claimant in damages for breaching the terms of the equipment lease agreement dated 9th day of September, 2011 and to pay all its debts to the Claimant.
(c) The sum of N105, 000, 000. 00 (One Hundred and Five Million Naira) begin [sic] unpaid accumulated instalment [sic] payment of N15, 000, 000. 00 (Fifteen Million Naira) for the months of September 2011 to March 2012 that is 7 (seven) months which the Defendant ought to have been paying monthly after the Claimant had delivered the equipment.
(d) 30% of the sum of N15, 000,000.00 (Fifteen Million Naira) monthly from September 2011 to March 2012 totaling [sic] N31.5Million. Being additional payment as premium on the monthly rental sum to be made to the Claimant by the Defendant.
(e) N2,250, 00.00 being monthly rental sum/amount for the equipment (to wit compacting trucks) for six month (30% of N7.5m) from April 2012 to September, 2012 totaling [sic] N13,500,000 (Thirteen Million Five Hundred Thousand Naira) only owned [sic] the Claimant by the Defendant.
(f) The sum of N18, 504, 000 (Eighteen Million Five Hundred Thousand [sic] Naira) being the sum expended by the Claimant for the purchase of spare parts for the repair of the 10 equipment from the Defendant as well as cost incurred in respect of post recovery repairs.
(g) 14.76% interest on the sum due to the Claimant by the defendant from date of due payment till same is duly liquidated in accordance with the prevailing Central Bank of Nigeria Treasury rate.
(h) The sum of N2, 500,000.00 (Two Million Five Hundred Thousand Naira) being the cost incurred by the claimant for delivering the 10 equipment to the Defendant.
(i) The sum of N10, 000, 000.00 (Ten Million Naira) being the cost charged by the claimant’s Counsel to institute this suit for recovery.
(j) 10% (Ten Percent) post judgment sum interest from date of judgment till same is fully liquidated.?
(See pages 189-190 Records)
The parties filed and exchanged pleadings, issues were joined and the matter was subjected to a plenary trial at which testimonial and documentary evidence was adduced.
The lower Court in its judgment found and held that the Respondent had proven its claim to the satisfaction of the Court and entered judgment for the Respondent in the following terms:
1. IT IS HEREBY DECLARED that the Defendant has breached the terms of the parole/written agreement dated 9th September, 2011 between itself and the Claimant herein.
2. The Defendant is accordingly ordered to pay the following to the Claimant as a consequence of the breach:
(a) For the period whilst the 10 trucks were with the Defendant, the Defendant is to pay the instalmentally [sic] Agreed fee from the month of September 2011 to December 2011 when the Claimant recovered its 10 trucks from the Defendant i.e. the Defendant is to pay the agreed instalmental [sic] payment of N15,000,000.00 (Fifteen Million Naira) each for the months of September 2011 to December 2011.
(b) 30% (thirty percent) of the sum of N15,000,000.00 (Fifteen Million Naira) monthly from September 2011 to December 2011 being the agreed additional payment as premium on the monthly rental sum.
(c) The sum of N18,504, 000:00 (Eighteen Million, Five Hundred and Four Thousand Naira) being the sum expended by the Claimant for the purchase of spare parts for the repair of the 10 (ten) compacting truck equipment recovered from the Defendant as well as cost incurred in respect of post recovery repairs.
3. However, the claims v, viii and ix failed as the claims are futuristic, the Claimant has failed to establish the Defendant’s title to the possession and whether the property passed to the Defendant for value. Accordingly, the 3 claims were not substantiated and they accordingly fail and are dismissed.
4. On claim vii, since the Defendant has failed to pay the said money as at when due the Claimant is entitled to interest at the then prevailing Central Bank of Nigeria rate of 14.76% on the judgment sum stated on paragraph 2 from September to December 2011. However, interest is awarded at the rate of 10% per annum from 1st January, 2012 on the total sum till the judgment is delivered. The post-judgment interest rate of 10% is hereby refused by the Court as this was not envisaged by the parties.
5. The claim for the cost of transportation also fails as that was not envisaged by the parties, the Defendant cannot be made to pay for same.
6. There shall be no further Order as to cost. (See pages 390-392 of the Records)
The Appellant being dissatisfied with the judgment appealed against the same on 12th July, 2017. The scarified judgment of the lower Court is at pages 367-392 of the Records while the Notice of Appeal is at pages 393-399 of the Records.
The Records of Appeal having been compiled and transmitted, the parties filed and exchanged briefs of argument. The briefs on which the appeal was argued are:
1. The Appellants Brief of Argument filed on 27th October, 2017.
2. The Respondents Brief of Argument filed on 11th December, 2017.
3. The Appellant’s Reply Brief filed on 17th January, 2018.
At the hearing of the appeal, S. Edu, Esq. (leading C.O Ngoka, Esq.), learned counsel for the Appellant and Benjamin O. Oni, Esq. of counsel for the Respondent adopted and relied on their briefs in urging the Court to uphold their respective submissions in the determination of the appeal.
The Appellant distilled four issues for determination as follows:
1. Whether the Learned Trial Judge correctly considered the principles of Law and the Rules of pleadings when it relied on alleged parole contract not pleaded and or claimed by the Respondent and held that the Appellant breached the terms of the parole/written agreement dated 9th September 2011 between the Respondent and the Appellant?
2. Whether the Lower Court correctly evaluated the Facts, Pleadings and Evidence led before it when it held that:the Appellant is ordered to pay the following to the Respondent as a consequence of the breach:
[a] For the period whilst the 10 trucks were with the Appellant, the Appellant is to pay the installmentally agreed fee from the month of September 2011 to December, 2011 when the Respondent recovered its 10 trucks from the Appellant i.e the Appellant is to pay the agreed installmental payment of NGN15, 000.000.00 [Fifteen Million Naira] monthly from September 2011 to December 2011.
[b] 30% of thee sum of NGN15, 000.000.00 [Fifteen Million Naira] monthly from September 2011 to December 2011 being the agreed additional payment as premium on the monthly rental sum?
3. Whether the Learned Trial Judge considered the principles of law guiding the award of special damages when it held that the Appellant is liable for the cost of repairs of the compacting trucks?
4. Whether the Evidence adduced by the Respondent in the Suit justifies the grant of the declaratory reliefs and the monetary awards by the Lower Court thereof
On its part, the Respondent formulated two issues for determination, namely:
1. Whether in the circumstances of the case, the pleadings and evidence before the Court the Learned Trial Judge was right to have held that a parole agreement existed between the parties. (Ground 1 of the Notice of Appeal)
2. Whether the reliefs granted by the Court were proper and within the confines of the discretion of the Learned Trial Judge in the circumstances of the case. (Grounds 2, 3, and 4 of the Notice of Appeal).?
The issues for determination as crafted by learned counsel take their roots in the grounds of appeal; accordingly, the issues can be conveniently considered together and resolved seamlessly. I will therefore review the submissions of learned counsel and resolve the appeal en bloc.
SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant’s contention on its issue number one is that the Respondent’s action for which it sought damages is for breach of equipment lease agreement dated 9th September 2011. It was stated that the Appellant joined issues on the existence of any equipment lease agreement, maintaining that none was agreed upon or executed. It was asserted that the Respondent’s claim was not based on any oral or parole contract and no declaratory relief was claimed for the breach of a parole agreement. It was further stated that the Respondent did not make any case that a parole agreement existed side by side with the equipment lease agreement or morphed into the equipment lease agreement.
It was contended that parties are bound by their pleadings and that where there is variance between the claim, pleadings and evidence, the action must fail. The case of AKANNI vs. ODEJIDE (2004) 5 NWLR (PT 879) 575 and OGIAMEN vs. OGIAMEN (1967) NMLR 245 were referred to. It was therefore submitted that the lower Court was in error when it entered judgment for the Respondent on a parole contract which was not the Respondent?s claim. The case ofDIBAL vs. EGUMA (2016) LPELR 41236 (CA) was relied upon. The Appellant maintained that the case of the Respondent and the testimony of its witness was that the unsigned equipment lease agreement governed the relationship between the parties. (Page 349 of the Records was referred to).
The Appellant further contended that the incorporation of parole agreement into equipment lease agreement was never pleaded and that parties being bound by their pleadings, any evidence at variance with the pleadings goes to no issue. The cases of ADETOUN OLADEJI (NIG) LTD vs. N. B. PLC (2007) 5 NWLR (PT 1027) 415 at 425, OHIAERI vs. AKABEZE (1992) 2 NWLR (PT 221) 1, OFONDU vs. NIWEIGHA (1993) 2 NWLR (PT 275) 253 and ALLIED BANK (NIG) LTD vs. AKUBUEZE (1997) 6 NWLR (PT 509) 374 were cited in support. It was posited that the lower Court having held that the unsigned equipment lease agreement was a worthless document should not have relied on the same in granting the claims of the Respondent. The case of FARO BOTTLING CO. LTD vs. OSUJI (2002) 1 NWLR (PT 748) 311 at 330-331 was called in aid. The Appellant asserted that any parole contract would have agreed on the terms and it was not for the lower court to revert to the unsigned equipment lease agreement as stating the terms of the parole contract.
The Appellant’s submission on its issue number two is that the lower Court was wrong to have awarded the claim for the purchase price of the trucks together with rental on the trucks that belong to the Respondent as if title and possession in the property had passed to the Appellant, especially when the trucks had been retrieved by the Respondent thereby rescinding any equipment lease agreement, which validity is not conceded. It was stated that all that remained for the Respondent, having rescinded whatever contract, was to claim damages for breach of contract and not the purchase price of the trucks. Paragraphs 989 and 1012 of volume 9 (1) of Halsbury’s Laws of England (Fourth Edition) was referred to. It was opined that the measure of damages in contract are damages arising naturally in the usual course of things from such breach of contract or such as may reasonably be supposed to have been in contemplation of the parties. The case of SWISS NIGERIAN WOOD INDUSTRIES LTD vs. BOGO (1970) 1 ALR 423 at 430-431 was relied upon.
On issue number three, the Appellant’s submission is that the Respondent failed to establish the alleged purchase of spare parts for the repairs of the compacting trucks and that there was no evidence from any mechanic who in fact repaired the trucks. It was stated that the consideration by the lower Court of the special damages claimed was against the established principles for considering special damages. The case of USMAN vs. ABUBAKAR (2001) 12 NWLR (PT 728) 685 at 704 was cited in support. It was posited that the testimony elicited under cross examination is that the Respondent’s drivers manned the trucks under the supervision of Respondent’s personnel and therefore the cost of repairs cannot be recovered from the Appellant.
The Appellant maintained that the details of the state of the trucks were not particularised and no credible evidence was adduced to prove the repairs so the special damages claimed was not proved. The cases of N. M. A. vs. M. M. A. INC. (2010) 4 NWLR (PT 1185) 643, A. C. B. vs. OKONKWO (1997) 1 NWLR (PT 480) 194, BASSIL vs. FAJEBE (1990) 6 NWLR (PT 155) 172, CONSOLIDATED BREWERIES PLC vs. AISOWIEREN (2001) 15 NWLR (no part supplied) 424 and NWANJI vs. COASTAL SERVICES NIG LTD (2004) 11 NWLR (PT 885) 552 among other cases were called in aid.
Arguing its issue number four, the Appellant submits that the judgment of the lower Court is against the weight of the evidence as the findings of the lower Court on parole contract do not flow from the averments, claims and reliefs before the Court, since the case as pleaded by the Respondent was that the Appellant was in breach of equipment lease agreement dated 9th September 2011 and not breach of any parole agreement. The cases of UNION BANK OF NIGERIA PLC vs. BORINI PRONO & CO. (NIG) LTD (1998) 4 NWLR (PT 547) 640 at 651-652 and ABISI vs. EKWEALOR (1993) 6 NWLR (PT 302) 643 were referred to.
SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent’s submission on its issue number one is that a contract can be oral or written and that the lower Court was right to hold that an oral contract existed as the facts leading to the oral contract were duly pleaded. The case of B. O. N. LTD vs. BABATUNDE (2002) 7 NWLR (PT 766) 389 at 409 andSagay: Nigerian Law of Contract, 2nd Edition page 2, were relied upon. It was stated that the Respondent clearly set out the facts of its case in the Further Amended Statement of Claim. The cases of AKANINWO vs. NSIRIM (2008) 20 WRN 99 and ODOM vs. PDP (2016) 18 WRN 114 were called in aid. It was asserted that the operative acts of the parties which resulted in the compacting trucks being delivered to the Appellant, the receipt and use of the same by the Appellant gave rise to an enforceable contract.
It was maintained that the Respondent’s evidence on the oral contract and the terms thereof were unchallenged and so the onus of proof on the Respondent was discharged on minimum proof. The cases of CBN vs. OKOJIE (2015) 40 WRN 1 and MILITARY GOVERNOR OF LAGOS STATE vs. ADEYIGA (2012) 30 WRN 1 were cited in support.
It was posited that the Court should not allow the Appellant to use technicality to cheat or perpetrate fraud against the Respondent, vide LAWAL vs. EJIDIKE (1977) 2 NWLR (PT 487) 319 at 331.
Arguing its issue number two, the Respondent relying on AGU vs. GENERAL OIL LTD (2015) WRN 54 at 68 submits that the essence of award of damages in breach of contract is restitutio in integrum. It was opined the reliefs it sought were based on the total sums it would have received if the Appellant had honoured its commitment to the agreement between the parties. It was maintained that the damages to the trucks was a consequence of the Appellant?s use of the trucks and that in cases of breach of contract there is no dichotomy between special and general damages as the damages awarded is that which flows naturally from the breach.
It was submitted that the Court of Appeal decision in N. M. A. vs. M. M. A. INC. (supra) relied upon by the Appellant had been overturned by the Supreme Court in M. M. A. INC. vs. N. M. A. (2013) 29 WRN 28 to the effect that a document pleaded which details special damages was sufficient to meet the requirement of pleading particulars of special damages. It was asserted that the lower Court considered the pleadings and evidence in holding that parole agreement existed and that it was a consequential order made within the inherent powers of the Court to give effect to the judgment. The cases of OGUNLADE vs. FMB NIG LTD (2007) 2 NWLR (PT 1017) 16, EMERHOR vs. OKOWA (2016) 48 WRN 1 and OGUNYADE vs. OSHUNKEYE (2007) 15 NWLR (PT 1057) 218 were referred to.
The Respondent maintains that the judgment of the lower Court is not against the weight of the evidence and that the lower Court property evaluated the evidence. It was conclusively submitted that it is not every error in a judgment that vitiates or voids the judgment, unless the error has occasioned a miscarriage of justice. The case of OSEMEIKHIAN vs. EDIONWELE (2016) 40 WRN 37 was relied upon. It was posited that the main issue in the case was the existence of an agreement between the parties and the substance of the judgment was to enforce the agreement and that technical justice should not be allowed to overwhelm substantial justice; FRN vs. DAIRO (2016) 1 WRN 38 was cited in support.
APPELLANT’S REPLY ON LAW
The Appellant’s Reply Brief in respect of the Respondent’s issue number one is repetitive of the submissions in the Appellant’s Brief. It merely re-emphasised and re-argued the points already taken in the Appellant’s Brief. This is not the essence, purpose or function of a Reply Brief. The Reply Brief is to refute the arguments in the Respondent’s Brief which were not taken in the Appellant’s Brief. Consequently, I will discountenance with the submissions in the Reply Brief as they relate to the Respondent’s issue number one. See ABDULLAHI vs. MILITARY ADMINISTRATOR (2009) LPELR (27) 1 at 13, OGUANUHU vs. CHIEGBOKA (2013) LPELR (19980) 1 at 17 and AKAYEPE vs. AKAYEPE (2009) LPELR (326) 1 at 18-19.
With respect to the Respondent’s submissions under its issue number two, the Appellant states that the argument that the declaration of the lower Court that a parole agreement existed between the parties was a consequential order, showed that the decision of the lower Court did not emanate from the pleaded facts. It was maintained that a finding of fact by a Court must be based on pleaded facts and evidence adduced.
It was asserted that a Court cannot under a consequential order grant a fresh or unclaimed or unproven relief to a party since a consequential order can only relate to matters adjudicated upon. The cases of OSUJI vs. EKEOCHA (2009) 16 NWLR (PT 1166) 81 and INAKOJU vs. ADELEKE (2007) ALL FWLR (PT 353) 1 were called in aid. It was conclusively stated that the decision of the Supreme Court in M. M. A. INC. vs. N. M. A. (supra) will not avail the Respondent as no particulars whatsoever were pleaded regarding the damage to the trucks and the loss or damage that occasioned the alleged repairs.
RESOLUTION
When properly conualized, the quodlibet in this matter falls within a very narrow compass. I have already set out the reliefs claimed by the Respondent in the Further Amended Statement of Claim. The principal relief claimed by the Respondent is for a declaration that the Appellant breached the terms of the equipment lease agreement dated 9th September, 2011 and that consequent upon this breach the Appellant is liable in damages to the Respondent. For clarity, I will reproduce these principal reliefs as claimed in paragraph 26 (a) and (b) of the Further Amended Statement of Claim. They read:
(a) A declaration that the Defendant has breached the terms of the equipment lease agreement Dated 9th September 2011 between itself and the Claimant herein.
(b) A declaration that the Defendant is liable to the Claimant in damages for breaching the terms of the equipment lease agreement dated 9th day of September 2011 and to pay all its debts to the Claimant.(See page 189 of the Records)
The other reliefs claimed by the Respondent are like leeches as their success is dependent on the success of the principal relief that the Appellant is in breach of the equipment lease agreement dated 9th September, 2011. Where the principal relief does not succeed, the concomitance would be that the other reliefs would equally fail. The legal principle being sublato principali tollitur adjunctum (co. Litt. 389) [the principal being taken away, the adjunct is also taken away]: ADEGOKE MOTORS vs. ADESANYA (1989) 3 NWLR (PT 109) 250 at 269.
Now, it is effulgent that the relief claimed by the Respondent is for a declaration that the Appellant is breach of the equipment lease agreement dated 9th September 2011. The parties joined issues on the existence of any equipment lease agreement, with the Appellant maintaining that no agreement was entered into or executed. In its judgment, the lower Court declared that the Appellant was in breach of the parole/written agreement dated 9th September, 2011. There was no relief claimed for breach of any parole agreement, so the lower Court had no business granting a relief that was not claimed. It is trite law that both the Court and the parties are bound by the reliefs claimed as framed and it is not the duty of the Court to grant any relief outside what had been claimed. In the words of Tobi, JSC in EAGLE SUPER PACK (NIGERIA) LTD vs. ACB PLC (2006) 19 NWLR (PT 1013) 20 or (2006) LPELR (980) 1 at 40:
“It is elementary that a Court is bound by the relief or reliefs sought. The generosity or charity of a Court of law is confined strictly to the relief or reliefs sought to the extent that a Court of law cannot give a party what he did not claim. That is completely outside our procedural law. The rationale behind this is that a party who comes to Court knows where the shoe pinches him and therefore knows the limits of what he wants. The Court, as an unbiased umpire, so to say, cannot claim to know the relief or reliefs better than the party…”
See also DUMEZ NIG LTD vs. NWAKHOBA (2008) LPELR (965) 1 at 26, AKINTERINWA vs. OLADUNJOYE (2000) LPELR (358) 1 at 40 and SIMEON vs. COLLEGE OF EDUCATION, EKIADOLOR, BENIN (2014) LPELR (23320) 1 at 28.
The Appellant knew the paregoric it desired from the Court and consequently claimed a relief in that regard, id est, that the Respondent was in breach of the equipment lease agreement dated 9th September, 2011. It was no longer the business of any Court to consider whether there existed a parole contract that was breached. As circumscribed by the relief as framed, it was a declaration that the equipment lease agreement dated 9th September, 2011 had been breached by the Appellant. Defining the meaning of claim in OSUJI vs. EKEOCHA (2009) LPELR (2816) 1 at 55, Tobi, JSC stated as follows:
“A claim, in our adjectival law originates an action. It is the pivot or cynosure of the case. It sets out the relief or reliefs sought by the plaintiff.
A plaintiff is bound by his claim and must not deviate from it willy-nilly. A plaintiff cannot in law present a case different from his claim as the law regards such an unsolicited procedure completely outside the law.”
It is equally hornbook law that a Court cannot adjudicate between parties on the basis of a claim not formulated by them. In the words of Adekeye, JSC in OSUJI vs. EKEOCHA (2009) LPELR (2816) 1 at 44:
“The position of the law is clear that a Court of law can only grant reliefs claimed by a party and not more. It is trite that a Court is duty bound to adjudicate between the parties on the basis of the claim formulated by them.”
In the circumstances, it was not open to the lower Court to make a declaration that the Appellant is breach of the terms of the parole agreement since it was not one of the reliefs claimed by the Respondent.
Allied to the foregoing, is the settled principle of law that it is not the duty of the Court to make a case for the parties. The Court acts and finds only on the case the parties present before it. See SPASCO VEHICLE AND PLANT HIRE CO. vs. ALRAINE (NIG) LTD (1995) 8 NWLR (PT. 416) 655 at 669, NBCI vs. INTEGRATED GAS (NIG) LTD (2005) LPELR (2016) 1 at 21-22, KAYILI vs. YILKBUK (2015) LPELR (24323) 1 at 52 and UBN PLC vs. EMOLE (2001) LPELR (3392) 1 at 18. The Respondent’s sole witness was explicit in his evidence in chief in the witness statement on oath that the Respondent’s case was predicated on the equipment lease agreement dated 9th September, 2011 and for which the Respondent claimed the relief that the Appellant was in breach of the said equipment lease agreement dated 9th September, 2011. This is further iterated by the testimony elicited under cross examination of the Respondent?s sole witness when he testified as follows:
Q. Which document regulates the relationships between the Claimant and the Defendant?
A. That is the agreement, the equipment lease agreement.
Q. What date is the equipment lease agreement?
A. 09/09/2011. (See page 349 of the Records)
The Respondent could not depart from the case as made out in its pleadings and relief claimed, a fortiori the lower Court. The law is now settled beyond peradventure that parties are bound their pleadings and evidence at variance with the pleadings must be discountenanced as they go to no issue. Indeed it is not open to a party to depart from his case as pleaded and put a different case:BASSIL vs. FAJEBE (2001) LPELR (757) 1 at 13, SKYE BANK vs. AKINPELU (2010) LPELR (3073) 1 at 6 and ALHASSAN vs. ISHAKU (2016) LPELR (40083) 1 at 68.
The lower Court clearly made out a case different from the case of the parties when at page 383 of the Records it stated as follows:
“I have evaluated the totality of the evidence adduced and ascribed probative value to the evidence, I have come to the conclusion that the contractual relationship between the parties is guided by oral (parole) agreement as established by evidence of both parties.”
The lower Court then conclusively held as follows at page 387 of the Records:
“The Defendant I find has breached the oral contract by acting contrary to the terms of the parole agreement of parties as stated by the Claimant and partly admitted by the Defendant under its pleadings and evidence before the Court.”
This is not permissible and an appellate Court will definitely interfere to redress the situation.
The matter does not end there. At least not yet. I restate that the declaration made by the lower Court is that the Appellant had breached the terms of the parole/written agreement dated 9th September, 2011. When this declaration as it relates to breach of written agreement dated 9th September, 2011 is apposed with the finding and holding of the lower Court on pages 383 and 387 of the Records which I have reproduced above: ‘that the contractual relationship between the parties is guided by oral (parole) agreement’ and that the Appellant ‘breached the oral contract by acting contrary to the terms of the parole agreement of the parties;’ it makes one view with askance how the lower Court could have declared that the Appellant was in breach of the written agreement dated 9th September 2011 when its finding is ‘that the contractual relationship between the parties is guided by oral (parole) agreement’, which oral contract the Appellant had breached. Undoubtedly, the decision of the lower Court is perverse.
What is more, the written agreement, the equipment lease agreement dated 9th September, 2011 is Exhibit CW1. The lower Court found that the said Exhibit CW1 was not executed by the Appellant and correctly stated the law that such an unsigned document is worthless in law. Hear the lower Court at pages 380-381 of the Records:
“…for the Court to find that parties are bound by the terms and conditions contained in its written agreement, it is essential that such an agreement must have been executed by the parties as it is trite that an unsigned document is a worthless piece of paper. In Omega Bank (Nig.) Plc v. OBC Ltd (2005) 8 NWLR (pt. 928) 547, at 581, Niki-Tobi, JSC held at paras C-D that ?where a document is not signed, it may not be admitted in evidence, even if it is admitted in evidence, the Court should not attach any probative value to it. This is because a document which is not signed has no origin in terms of its maker.”
I cannot help but ask, how then did the lower Court make a declaration that the Appellant was in breach of the written agreement dated 9th September 2011, after it had correctly restated the legal position that no probative value can be accorded a document, such as Exhibit CW1 that is unsigned? Doubtless, the decision of the lower Court in the declaration that the Appellant is in breach of the terms of the parole/written agreement dated 9th September 2011 is a perverse decision.
In ATOLAGBE vs. SHORUN (1985) 1 NWLR (PT. 2) 360, Oputa, JSC stated that a perverse decision simply means persistent in error, different from what is reasonably required, against the weight of evidence, or where the Court shuts its eyes to the obvious. See also JAMES vs. INEC (2015) LPELR (24494) 1 at 80 (SC). In GILSOD ASSOCIATES LTD vs. ALGON (2011) LPELR (4197) 1 at 50-51 (CA), this Court, per Garba, JCA held as follows:
“a perverse decision is one that is not supported by the facts and evidence adduced in support thereof. Decisions of Courts of law are required to be entirely predicated on the credible evidence placed before the Courts in proof of the facts asserted by the parties in line with the requirements of the law. Any decision of a Court reached in any one of the situations set out in the case cited by learned counsel above, would clearly amount to a perverse decision which the appellate Courts would not only have the power and jurisdiction, but also the duty to interfere with by setting aside. A perverse decision is one which lacks any quality of justice according to law, equity and even common sense such that it can rightly be called a preserve and truly purported decision.”
Furthermore, in TRIMSKAY NIG. LTD VS BANKOLE-OKI (2015) LPELR (24518) 1 at 53 (CA), Bage, JCA (as he then was) stated:
“As to the meaning of a perverse decision, is a decision of the Court, when it ignores the facts of evidence before it and when considered as a whole amounts to miscarriage of justice. In such a case, an appellate Court is bound to interfere with such a decision and set it aside.”
See also UDENGWU vs. UZUEGBU (2003) 13 NWLR (PT 836) 136, C.S.S. BOOKSHOPS LTD vs. R.T.M.C.R.S (2006) 11 NWLR (PT 992) 530, NEPA vs. OSOSANYA (2004) 1 SC (PT 1) 159 and NEWBREED ORG. LTD vs. ERHOMOSELE (2006) 5 NWLR (PT 974) 499 at 527.
Now, the perversion in the decision of the lower Court in holding that the Appellant is in breach of the parole/written agreement dated 9th September, 2011 lies in the fact that the Respondent did not claim or make a case for the breach of any parole agreement and did not claim any relief in respect thereof.
The lower Court was therefore making a case different from the case made out by the parties and granting a relief which had not been claimed. Furthermore, since by law an unsigned document has no probative value, the lower Court erred in declaring that the Appellant was in breach of the terms of the unsigned written agreement dated 9th September, 2011. Accordingly, it occasioned a miscarriage of justice, which has been stated to be a failure a justice, a failure on the part of the Court to do justice. It is justice misplaced, mis-appreciated or misappropriated: OGUNTAYO vs. ADELAJA (2009) 15, NWLR (PT 1163) 150. Where the miscarriage of justice is such that if corrected a different result will be the outcome, then the appellate Court will interfere: DAGACI OF DERE vs. DAGACI OF EBWA (2006) 7 NWLR (PT. 979) 382. The position in this matter is such that if the miscarriage of justice is corrected, the result will be that the Appellant will not be found liable for breach of contract.
Let me state that I duly ruminated on the Respondent’s contention that the finding of the lower Court that a parole agreement existed between the parties was a consequential order, but I am not enthused by the contention. A consequential order is an order that naturally follows or flows from the decision of the Court and is meant to strengthen the relief claimed. A consequential order cannot properly be made to give a party entitlement to a relief that has not been established in his favour. The consequential orders have to necessarily follow upon the success of the relief sought. See OBAYAGBONA vs. OBAZEE (1972) 5 SC 247 at 254-255, FABIYI vs. ADENIYI (2000) 6 NWLR (PT 662) 532, BOGBAN vs. DIWHRE (2005) 16 NWLR (PT 951) 274) AKPANUDOEDEHE vs. AKPABIO (2011) LPELR (4944) 1 at 21 and ANKPA vs. MAIKARFI (2008) LPELR (3776) 1 at 52. The Respondent did not successfully make out a case on the existence of any equipment lease agreement dated 9th September, 2011 upon which it founded its case, the order that there was a parole agreement, which was neither pleaded nor formed the basis of the issues joined by the parties and upon which the action was fought, does not flow from and is not a consequence of the Respondent?s failure to make out the case it took to Court.
From the totality of the foregoing, the decision of the lower Court that the Appellant is in breach of contract cannot be allowed to stand. As stated by Belgore, JSC (as he then was) in UBN LTD vs. OGBOH (1995) LPELR (3387) 1 at 24:
‘A party is only bound by what he pleads and that pleadings is his case, nothing more, nothing less. A party should be given only the relief he claims and what must be reasonably antecedent to it.’
Let me restate that the relief in paragraph 26 (a) and (b) of the Further Amended Statement of Claim are the principal reliefs claimed by the Appellant. All other reliefs claimed are parasitic and their grant depends on success of the Respondent’s principal relief of the Appellant having breached the equipment lease agreement dated 9th September, 2011. This is underscored and highlighted by the fact that Reliefs 2 (a) – (c) granted by the lower Court are awards made as a consequence of the breach of contract. Having held that the breach of contract as claimed was not established and proved, it necessarily follows that the said awards cannot stand as the premise on which they were made no longer stands. The same is equally true of the pre-judgment interest awarded by the lower Court as item number 4 on page 391 of the Records. Conclusively, having resolved the paramount issue on the principal reliefs claimed against the Respondent, the necessary implication is that all the other reliefs which are like leeches would equally fall through: EGBE vs. GEORGE (2018) LPELR (44800) 1 at 22-23 and NSUGBE vs. OKOBI (2012) LPELR (24481) 1 at 30-31.
In a coda, this appeal has merit. It succeeds and it is hereby allowed, the decision of the High Court of Lagos State in SUIT NO. LD/1019/2012: POWERNOTH – AICL EQUIPMENTS CO. LTD vs. MULTI-TRADE ECOLOGY LTD delivered on 23rd June, 2017 is hereby set aside. In its stead, an order is hereby made dismissing the said action in its entirety. There shall be no order as to costs.
TOM SHAIBU YAKUBU, J.C.A.: The opinion proffered in the lead judgment rendered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA, on this appeal, represents my thoughts. I have nothing more useful to add to it.
I too allow the appeal, consequently, the decision of the Lagos State High Court of Justice, in re-suit No. W/1019/2012, delivered on 23rd June, 2017 is hereby set aside. The respondent?s action at the Court below, stands dismissed.
Each side shall bear own costs.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege of reading in draft, the lead Judgment delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA.
I agree that the appeal be allowed, I abide with the consequential orders made.
Appearances:
S. Edu, Esq. with him, C. O. Ngoka, Esq.For Appellant(s)
Benjamin O. Oni, Esq.For Respondent(s)
