NDUBUISI ODIGBO v. AL MUSTAPHA ABUBAKAR & ORS
(2018)LCN/12264(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of December, 2018
CA/S/7/2017
RATIO
TRUST: INCORPORATED TRUSTEE
“On the issue that the N.B.A. is an incorporated trustee, that no suit can be maintained against it except in its corporate name ‘Registered Trustees of the Nigeria Bar Association’, that being an Incorporated Trustee, it cannot be sued in a representative capacity, in the case of FAWEHINMI V. N.B.A. & ORS. NO. 2 (1989) LPLER 1259 SC, it was held that: – ‘The name Nigerian Bar Association is not a registered name under any statute although it is recognized and accepted as the name of the body by various statutes. The Nigeria Bar Association loses nothing by being declared a non juristic person. It can always sue and be sued in a representative capacity.'” PER ABDULLAHI MAHMUD BAYERO, J.C.A.
COURT AND PROCEDURE: WHO IS A NATURAL PERSON
“Furthermore, since the Nigeria Bar Association is not a juristic entity and not a natural person, the Appellant was right to sue the members (the Respondents) who are natural persons. In ATAGUBA V. GURA (2005) 21 NSCQR 720 at 731 the Supreme Court held that:- ‘As a general principle only natural persons that is human beings and juristic or artificial persons such as body corporate are competent to sue or be sued.'” PER ABDULLAHI MAHMUD BAYERO, J.C.A.
JUSTICES
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
NDUBUISI ODIGBO Appellant(s)
AND
1. AL MUSTAPHA ABUBAKAR
2. DAN IGE
3. GARBA GANA
4. DAUDA DAN TSOHO Respondent(s)
ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment):
This is an Appeal against the decision of Sokoto State High Court in Suit No. SS/27/2013 delivered by D.B. Sambo J., on 15th July, 2016 partly awarding the sum of N 2,007,300.00 in favour of the appellant. Dissatisfied with the Judgment, he filed this Appeal via a Notice of Appeal filed on 2nd October, 2016.
FACTS
The Appellant as plaintiff before the lower Court sued the Respondents for themselves and members of the Nigeria Bar Association, Sokoto State Branch jointly and severally, for breach of contract. The Appellant is contending that the NBA secretariat building, lying and situate at No. 2 Garba Duba Road in Sokoto State was leased to him. That he paid rent of N 150,000 for the period January to December, 2013 which was accepted and acknowledged by the Respondents. That in April 2013, the Respondents served him with one month quit notice and he sued them before the lower Court. That while the matter was pending in Court, the Respondents mobilized their workmen who demolished the main building of the secretariat; destroying fixtures the Appellant put in place.
According to the Appellant, the Respondents workmen also dug a deep, long and wide hole at the entrance of the secretariat, making it impossible for the Appellant to use the property for his business.
On the part of the Respondents, they contended that the Appellant was a monthly tenant as such the one month notice served on him was in order. The Respondents also counter claimed against the Appellants. The lower Court refused to grant the claims of the Appellant except the value for improvements on the property. The counter claim of the Respondents was also dismissed. The Appellant was the Plaintiff before the Sokoto High Court (lower Court) while the Respondents where the defendants. By an amended Statement of Claim dated 24th June, 2014 the Appellant as plaintiff before the lower Court prays for the following reliefs:-
a) An order declaring that by the letter dated 10th April, 2013 signed by A. M. Dan Ige Esq., and addressed to the plaintiff, the Nigeria Bar Association; Sokoto Branch has unilaterally repudiated the contract with the plaintiff.
b) An order declaring that the unilateral repudiation of the contract is a breach of the contract which entitles the plaintiff to a claim in damages.
c) An order directing the defendants and members of Nigeria Bar Association Sokoto Branch to jointly and severally pay the plaintiff the sum of Fifteen Million Naira only as special and general damages as follows:-
SPECIAL DAMAGES
1) Value of improvement made by the plaintiff on the secretariat N 2,007,300.00
2) Loss of expected profit from May 2013 to December, 2013 N 5,000,000
3) Money stolen from the secretariat during destruction of same by the defendants
GENERAL DAMAGES
“The sum of N 7,267,700.00 as general damages for breach of contract against the defendants.”
The Respondents filed preliminary objection challenging the jurisdiction of the lower Court, the Appellant responded by filling a counter affidavit. The objection was heard and dismissed. Parties duly exchanged pleadings; the Respondents filed a consequentially amended statement of defence and counter claimed against the Appellant. At paragraph 25 of the consequentially statement of defence it was stated:-
WHEREOF the defendants urge this honourable Court to dismiss the reliefs of the plaintiff against the defendants for being speculative devoid of any merit and a gold digging exercise.? They also counter claimed thus: –
“WHEREOF the defendants counter claimed against the plaintiff the following: –
a) Two Million Fifty Seven Thousand Three Hundred Naira (N2, 57, 300.00) only being damages for waste or nuisance committed by the plaintiff in the premises of Nigeria Bar Association Sokoto Branch
b) Cost of N 200,000.”
The Appellant did not file a reply to the statement of defence or a defenceto the counter claim. At the conclusion of the trial, the trial judge did not grant reliefs a) and b) of the Appellant, dismissed the counter claim of the Respondents but awarded the sum of N2,007,300.00 as value for improvement on the N.B.A. Secretariat for the Appellant.
Dissatisfied, the Appellant filed the Notice of Appeal on 5th October, 2016 containing three grounds. It reads:-
NOTICE OF APPEAL
TAKE NOTICE that the Appellant being dissatisfied with the decision of Sokoto State High Court contained in the Judgment of Hon. Justice D. B. Sambo dated 15th July, 2016 do hereby Appeal to the Court of Appeal upon the grounds set out in paragraph 3 and will at the hearing of the Appeal seek the reliefs set out in paragraph 4.
AND the Appellant further states that the names and addresses of the persons directly affected by the Appeal are set out in paragraph 5.
2) PART OF THE DECISION OF THE LOWER COURT COMPLAINED OF:-
THE WHOLE DECISION APART FROM OR EXCLUDING THE PART GRANTING THE APPELLANT THE VALUE OF IMPROVEMENT, COST OF ACTION AND DISMISSING THE COUNTER CLAIM OF THE RESPONDENT.
3) GROUNDS OF APPEAL
GROUND ONE
The Judgment of the lower Court is against the weight of evidence.
GROUND TWO
The lower Court erred in law when it refused to grant reliefs (a) and (b) on the ground that the Appellant did not prove them, when it is apparent that he proved them.
PARTICULARS
a) The Appellant established and tendered Exhibits P1, P2 and P4 (1-6).
b) Exhibit P 1 is a contractual undertaking between the Appellant and the Respondents to the effect that the Appellant will stay in the leased property from January to December 2013.
c) Exhibits P2 and P4 (1-6) are a breach of the contractual undertaking which will entitle the Appellant to be awarded general damages.
d) No oral evidence can contradict or vary the content of Exhibit P1.
e) DW 1 under cross examination admitted that NBA Secretariat include all the buildings and the appurtenances.
f) The Respondents did not tender any evidence to show that the Appellant paid any monthly rent in 2012 and 2013.
GROUND THREE
The lower Court erred in law when it held that the Appellant is not entitled to the special damages apart from the value of improvements.
PARTICULARS
a) Special damages have to be specifically pleaded.
b) The special damages were specifically pleaded.
c) Loss of expected income is recoverable.
d) The Respondent did not offer the Appellant the opportunity to take away his properties before embarking on self help.
e) The only evidence in respect of the stolen money is that of the Appellant which is not challenged or contradicted.
f) The lower Court did not make any findings on the stolen money before coming to the conclusion that it was not proved.
4) RELIEFS SOUGHT FROM THE COURT OF APPEAL
a) An order allowing the Appeal.
b) An order setting aside the Judgment of the lower Court apart from the part granting the award of N 2,007,300.00 value of improvement on the property and cost of action.
c) An order granting all the prayers of the Appellant which the lower Court did not grant.
d) Any such further order or orders as this honourable Court may deem fit to make in the circumstances.
SUBMISSIONS OF THE APPELLANT?S COUNSEL.
In arguing the Appeal, counsel formulated one issue for determination distilled from grounds 1, 2 and 3 of the grounds of Appeal:-
“Whether Exhibit P1 did not create a contractual relationship between the Appellant and the Respondents with the effect that Exhibits P2 and P4 (1-6) are not breach of the relationship as to entitle the Appellant to the reliefs sought.”
It was submitted that Exhibit P1 created a contractual relationship between the Appellant and the Respondents and by Exhibits P2 and P4 (1-6), the Respondents breached that contractual relationship. He cited the case of BILANTE INTERNATIONAL LTD. V. NIGERIA DEPOSIT INSURANCE CORPORATION (2011) 6 MJSC (Pt. 1) Pg 69 at 80.
Counsel referred to pages 28 & 29 of the record of Appeal and submitted that Exhibit P1 shows that the Appellant paid to the Respondents the sum of One Hundred and Fifty Thousand Naira (N150,000) for the rent of the N.B.A. Secretariat; and the Respondents acknowledged receipt.
According to counsel, page 29 of the record of Appeal clearly shows an admission by the Respondents of collecting the said amount from the Appellant. He referred to ALI V N. A. A. (2005) AFWLR (Pt. 272) Pg 265 at 295; and DANIEL V. INEC (2015) AFWLR (Pt. 789) 993 at 1028 and stated that Exhibit P1 entitles the Appellant to use the NBA Secretariat from January 2013 to December 2013, that it was made without any qualification. That if the Respondents wanted to rely on the alleged monthly tenancy, they shouldn’t have accepted the rent. Or in the alternative, insert a proviso indicating that if the Respondents would want the property before December, 2013, the Appellant would be refunded the unexpired rent. He cited GENERAL OIL LTD V. FSB INT?L BANK PLC (2005) AFWLR (Pt. 277) 1007 at 1015 and submitted that parties are bound by their terms of agreement.
That it is the duty of the Court to enforce a contract duly entered into by parties. According to counsel, any attempt by the Respondents to negate this intention is a breach of contract. Learned counsel stated that Exhibit P2 is a one month notice to quit the property, while Exhibit P4 (1-6) are the photographs showing how the Respondents demolished the main building, damaged the fixtures put in place by the Appellant; and the deep wide and long hole dug at the entrance to the property so much that it is impossible to carry on the business there or for any vehicle to enter the property. That the combined effect of Exhibits P2 and P4 (1-6) is a breach of the contract between the Appellant and the Respondents. He cited JOB TRADE INVESTMENT LTD V. OLUBISI (2015) AFWLR (Pt. 793) 1871 at 1879 and submitted that so long as the money paid by the Appellant was accepted by the Respondents, Exhibit P1 created a reciprocal obligation that the Respondents will allow the Appellant use the property from January 2013 to December 2013, anything short of this is a breach of contract.
He further submitted that having established that the Respondents have committed breach of contract, the Appellant is entitled to the reliefs sought which are general and special damages. For general damages, he further submitted, all what the Appellant needs to prove is breach of contract and referred to JOB TRADE INVESTMENT LTD V. OLUBISI (Supra) at page 1885. He stated that at the time of making Exhibit P1, the Respondents know that the Appellant is using the property for his type of business to make profit. That anything contrary to this will lead to loss of expected profit for the unexpired term and he cited DAUDA V. LAGOS BUILDING INVESTMENT CO. (2012) AFWLR (Pt. 625) 380 at 393-394.
According to counsel, the contention of the Respondents that it was only the Boys Quarters of the Secretariat that was rented to the Appellant as the main building was excluded, cannot hold water because the terms in Exhibit P1 do not show that it was only the Boys’ Quarters that was rented to the Appellant. He also submitted that under cross examination, DW1 said:- “NBA Secretariat includes all the buildings and the appurtenances as reflected at Page 104 of the record of Appeal. That at page 103 of the record, DW1 maintained that at the time of the renovation, they asked the woman at the kitchen in the main building and the Appellant’s boys in the main building to remove their properties in the main building.
That all these show the presence of the Appellant in the main building. He therefore submitted that the contention of DW2 at pages 108 and 110 of the record of Appeal, to the effect that the woman in the kitchen was merely being tolerated, and that if the Appellant is using the main building he is a trespasser, are not true and an afterthought. He said from the circumstances of the case, it is clear that the main building was also rented to the Appellant.
On special damages, counsel submitted that the law is that special damages must be specifically pleaded and strictly proved and referred to DANIEL HOLDINGS LTD. V. UBA PLC (2005) AFWLR (Pt. 277) 895 at 904. According to him, by paragraphs 16 and 17 of the amended statement of claim which is reflected at page 50 of the record of Appeal, the Appellant pleaded loss of expected income/profit. That by paragraph 19 of the statement of claim, the Appellant pleaded loss of N 725,000 (page 51 of the record) and that they were proved as reflected at pages 73 and 75 of the record respectively. He cited DAWAKI GEN. ENTERPRISES LTD. V. AMAFCO ENTERPRISES LTD. (1999) 3 NWLR (Pt. 594) Pg 224 at 235. Counsel opined that Appellant’s evidence specifically pleaded was not contradicted which the lower Court ought to have accepted and rely upon, but refused to do so. He cited the IYERE V. BENDEL FEED & FLOUR MILLS LTD (2009) AFWLR (Pt 453) 1217 at 1247.
According to counsel, in any event, the Respondents ought not to have taken the law into their hands. They ought to have called the Appellant to come and remove everything he has in the main building. That it is trite the use of self help is a usurpation of judicial powers and an assault on the rule of law. He placed reliance on OBEYA MEMORIAL SPECIALIST HOSPITAL AYI-ONYEMA FAMILY LTD V. A/G FEDERATION (1988) 1 QLRN 150 at 151.
Learned counsel urged this Court to resolve the sole issue for determination in favour of the Appellant, allow the Appeal, set aside the judgment of the lower Court, except that part allowing the Appellant to recover cost of improvement on the property, and the dismissal of the Respondents counter claim and grant the Appellant’s reliefs not granted by the lower Court.
PRELIMINARY OBJECTION BY THE RESPONDENTS.
It is worthy of note that the Respondents raised Preliminary Objection in the Respondent’s brief of argument filed on 7th April, 2017 challenging the competence of this Appeal and seeking the striking out of same by this Court. A preliminary objection once raised must be disposed of first, before considering the main Appeal. I shall therefore first consider the preliminary objection for whatever it is worth before determining the Appeal. It was submitted for the Respondents thus:-
a) That this Appeal is incompetent and the incompetence has robbed this Court of the jurisdiction to entertain same. That the Appellant filed three grounds of Appeal including the omnibus ground and they are:-
GROUND 1
The judgment of the lower Court is against the weight of evidence.
GROUND 2
The lower Court erred in law when it refused to grant Reliefs (a) and (b) on the ground that the Appellant did not prove them when it is apparent that he proved them.
GROUND 3
The lower Court erred in law when it held that the Appellant is not entitled to the special damages apart from the value of improvements.
According to counsel, from these three grounds of Appeal, the Appellant distilled the sole issue for determination:-
Whether Exhibit P1 did not create a contractual relationship between the Appellant and the Respondents with the effect that Exhibit P2 and P4 (1-6) are not in breach of the relationship as to entitle the appellant to the reliefs sought. He submitted that looking at the three grounds of Appeal and the sole issue distilled from them will show that the issue formulated allegedly distilled from them does not flow from them as it does not relate to the grounds of Appeal.
According to counsel, ground 1 of the Notice and Ground of Appeal is the omnibus ground of Appeal which import in law is that the trial Court made findings or based its decisions against or contrary to the prevalence or preponderance of the evidence on the record. He cited SANNI V. ABDUSSALAM (2009) 18 WRN 61. Ground 2 he submitted complains that the ‘trial Court erred in Law when it refused to grant reliefs A & ‘B which they believe were proved while ground 3 complains about the trial Court holding that the Appellant was not entitled to special damages.
According to counsel, the sole issue allegedly distilled from these grounds of Appeal is talking about creation of contractual relationship between the Appellant and Respondents and whether the relationship was not breached to entitle the Appellant to the reliefs sought.
He submitted for the Respondents that the issue formulated by the Appellant did not arise from the grounds of Appeal as no such issue was considered by the lower Court. No valid issue on that could arise in this Court without leave of this Court and by way of a valid ground of Appeal.
That being the case, that issue ought to be struck out because an issue for determination must relate to the ground of Appeal filed. Thus any issue for determination which is not related or has no reference to any ground of Appeal goes to no issue and ought to be discountenanced by the Court. He referred to UZOEWULU V. EZEAKA (2000) 14 NWLR (Pt. 688) 629; OJE V BABALOLA (1991) 4 NWLR (PT. 185) 267.
If the sole issue in this Appeal which was distilled from the 3 grounds of Appeal is struck out he further submitted, it means that no issue has been distilled from the grounds of Appeal which are also liable to be struck out and cited TEJUOSHO V. INEC (2009) 14 WRN 48 @ 68 lines 35- 45.
In the absence of a surviving ground of Appeal according to him, there is no competent Appeal before this Court and consequently ought to be struck out.
He urged this Court to uphold this ground of objection.
On the second leg of the preliminary objection, it is submitted for the Respondents that the suit filed by the Appellant at the trial Court was incompetent, because it was improperly constituted as there was no valid defendant before the trial Court, and no leave was obtained to sue the Nigerian Bar Association in a representative capacity.
Learned counsel submitted that the question of jurisdiction of a Court is a radical and crucial question of competence, because if a Court has no jurisdiction to hear and determine a case, the proceedings are and remain a nullity ab initio no matter how well conducted. He cited DAPIANLONG Vs DARIYE (2007) NWLR (Pt. 1036) 332.
He said the law is trite that a Court is competent when the Court is properly constituted as regards numbers and qualification of members of the bench and no member is disqualified for one reason or the other; the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents, the Court form 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 and referred to MADUKOLU VS NKEMDILIM (1962) 1 ALL NLR 587; LUFTHANSA AIRLINES V. ODIESE (2006) 7 NWLR (Pt. 978) 39.
According to counsel, issue of jurisdiction can be raised at anytime, even at the Supreme Court for the first time without leave and he cited UNIILORIN V. ADENIRAN (2007) 6 NWLR (Pt. 1031) 498.
In the instant case, counsel submitted, it is clear from the record that the transaction which gave rise to the suit before the lower Court was between the Appellant and the Nigerian Bar Association, Sokoto Branch as shown at pages 25 and 29 of the Record of Appeal and Paragraphs 2,3,4 of the amended statement of claim at pages 47 – 52 of the Record.
He said it is pertinent also to note that throughout the entire gamut of the Appellant’s claim before the trial Court, there was nowhere the Respondents were alleged to have done anything wrong personally against the Appellant.
There is also no claim personally against any of them. It is therefore clear that they were being sued for alleged actions of the Nigerian Bar Association just because they are lawyers.
According to counsel, from the record, it is clear that the Respondents are members of the Nigerian Bar Association; Sokoto Branch randomly picked by the Appellant and sued as representing the Nigerian Bar Association Sokoto Branch, which is an incorporated trustee, without the leave of the Court.
That the law is trite that an incorporated trustee, like the Nigerian Bar Association, can only be sued in its corporate name, otherwise the suit is incompetent. He cited BAMBE V ADERINOLA (1977) 1 S.C. 1, REVEREND RUFUS 1. ONUEKWUSI & 8 ORS V. THE REGISTERED TRUSTEES OF THE CHRIST METHODIST ZION CHURCH. (2011) 2 SCNJ 126 at 153 lines 15-30.
Counsel also referred to Section 679(1) of Companies and Allied Matters Act. He said since it has been determined that Nigerian Bar Association simpliciter, is not a legal person, capable of suing or being sued in its name as it was held in FAWEHINMI v. NBA No. 2 (1989) 4 S.C (PART 1) 63, and that no suit can be maintained against the Nigerian Bar Association, except in its corporate name i.e.; “Registered Trustees of the Nigerian Bar Association” and being an Incorporated Trustee, it cannot be sued in a representative capacity.
According to him, to worsen the situation the Appellant decided which members of the Nigerian Bar Association to sue as representing the association and proceeded to file the suit against them in a representative capacity without the leave of Court first sought and obtained which makes the suit incompetent and cited MOZIE V. MBAMALU (2006) 27 NSCQR Pg. 425 at 460.
Counsel submitted that the effect of failure to sue a proper defendant and not obtaining leave to sue in a representative capacity, is that the trial Court lacked the jurisdiction to entertain the suit and referred to MOZIE VS MBAMALU (Supra) at 459 – 460, EXECUTORS OF THE ESTATE OF LATE ABACHA v. EKE-SPIFF& ORS (2009)2-3 SC (Pt 11) 93 at Pp. 109 – 111.
Counsel further submitted that the law has always been that the authority to sue or defend must come from the persons interested, i.e. those to be represented and cited NSIMA V NNAJI (1961) ALL N. L.R. 441; ADEGBITE V LAWAL (1948) 12 WACA 398. He said the issue of the jurisdiction of the trial Court to entertain the suit before it ab-initio is fundamental to the competence of the Appeal before this Court. That where the originating process at the trial Court is found not to confer jurisdiction on the Court, the proceedings are a nullity. That the absence of jurisdiction has a ripple effect and taints the Appellate Court, which would equally lack jurisdiction to entertain Appeals arising from the null proceedings. The lack of a proper defendant before the trial Court and this Court means that the lower Court, lacked the jurisdiction to entertain the suit and consequently this Court also lacks the jurisdiction to entertain this Appeal. He urged the Court to uphold their objection and strike out the Appeal for lack of jurisdiction.
APPELLANT’S RESPONSE TO THE PRELIMINARY OBJECTION
In his response to the preliminary objection, the Appellants counsel submitted that the issue for determination relates to the grounds of Appeal.
That reliefs (a) and (b) as contained in the amended statement of claim (contained at page 51 of the Record of Appeal) talks of breach of contract. He said this is more explained in the particulars of ground 2 of the Notice of Appeal and cited TINDAFAI V. JARA (2016) AFWLR (Part 834) Pg 96 at 109.
According to counsel, the central focus of the suit lies on the alleged breach of contract which he said is well captured in the issue for determination. That the Appellant tendered Exhibit P1 which created the contractual relationship with the Respondents and that Exhibit P2 is a breach of the contractual relationship. That despite the clear wordings of Exhibit P1 and P2, the learned trial judge held at page 172 of the record that Exhibit D3 along with the evidence of DW1 and DW2 overwhelmed the evidence of PW1 and Exhibit P1. Learned counsel submitted that at page 175 of the record, the lower Court held that reliefs (a) and (b) will not be granted for they have not been established given the state of pleadings and evidence adduced in the case. According to counsel, at page 173 of the record the lower Court held that the issue whether there was a breach of contract in this case will have no place in the light of the evidence before the Court.
He said from the foregoing, it is clear that the issue for determination is based on the grounds of appeal which also relate to the state of affairs before the lower Court. Moreover according to him, when the ground of appeal relates to the omnibus ground, it means that the judgment of the trial Court cannot be supported by the weight of evidence which has been adduced before it at the trial, or that the trial Court wrongly accepted the evidence adduced before it, or else that the inference which the Court drew, based on accepted evidence, cannot be justified. He cited DAKUR V. WEDTET (2005) AFWLR (Pt 278) 1116 at 1131.
According to counsel, despite collecting money for one year rent from the Appellant and endorsing Exhibit P1, it will be erroneous for the Respondents to issue Exhibit P2 to the Appellant. That if the Respondents know that they will not allow the Appellant to stay up to December 2013, they shouldn’t have accepted the rent. That having accepted the rent for January 2013 to December 2013, any quit notice before December is a breach of contract.
He urged this Court to so hold. On the second leg of the objection, he submitted that the Respondents were not randomly picked because by paragraph 2 of the amended statement of claim, contained at pages 47-48 of the Record of Appeal, they were described as executives and principal members of Nigeria Bar Association, Sokoto Branch at the material time of the action. That the Respondents did not lead any evidence to the contrary; as such they can be likened to being the head of family and in this capacity they can sue and be sued to represent other members. He referred to OJUKWU V. OJUKWU (2008) 36 NSCQR (Pt 2) 1279 at 1303. He urged the Court to hold that the Respondents were by virtue of their positions properly made parties in the suit and not randomly picked.
He said contending that the Nigerian Bar Association, Sokoto Branch is an incorporated trustee that can sue in its corporate name is misleading as it was never an issue before the lower Court. That if the Respondents now want it to be an issue before this Court, they ought to have tendered the certificate of incorporation which they failed to do.
Counsel submitted further that where a party has been shown to be the head of a family or principal member of an association, such leave is not required. In any case, he stated, the Court in an attempt to do justice can over look leave, if the circumstance warrants and entertain the matter even though is not sought and obtained. He cited MOZIE V. MBAMALU (2006) Supra at 425 at 461.
According to counsel, what is important in a representative action, is that parties named and unnamed belong to the same class, and they must have a common or same interest in the subject matter; he referred to APEH V. P.D.P. (2006) 4 WRN 1 at 15. He also submitted that the N.B.A. Sokoto Branch is never an incorporated trustee to sue or be sued in its corporate name. Rather, he submitted it is an association of lawyers residing and practicing in Sokoto State. He cited N.N.P.C. V. LUTIN INV. LTD. (2006) 1 JNSC (Pt. 1) 97 at 123 and submitted that since the Respondents failed to tender the certificate of incorporation, it will be presumed that the N.B.A. is not an incorporated trustee; as such the Appellant was right to sue members who are natural persons.
Learned counsel referred to ATAGUBA V. GURA (2005) 21 N.S.C.Q.R. 720 at 731 and stated that those sued before the lower Court are human beings. That the contract was entered on their behalf jointly in the name of Nigerian Bar Association, Sokoto Branch. On the issue that leave was not obtained before suing the Respondents in a representative capacity, he submitted that there is a difference between suing in a representative capacity and being sued in a representative capacity. According to counsel, the cases cited by learned counsel to the Respondents relate to suing in a representative capacity. He urged the Court to overrule the preliminary objection.
RESOLUTION OF THE PRELIMINARY OBJECTION
The first issue raised in the preliminary objection is that the sole issue distilled from the three grounds of Appeal for determination does not flow or arise from them; that while the sole issue for determination is whether Exhibit P1 did not create a contractual relationship between the Appellant and the Respondent with the effect that Exhibits P2 and P4 (1-6) are not breach of the relationship as to entitle the appellant to the relief sought; ground 1 of the notice and ground of appeal is the omnibus ground which import in law is that the trial Court made findings or based its decision against the preponderance of evidence on record, ground 2 complains that the trial Court erred in law when it refused to grant reliefs A and B as contained in the statement of claim, while ground 3 complains about the lower Court holding that the Appellant was not entitled to damages.
On the first issue, a careful look at the particulars of ground 2 of the Notice of Appeal shows that it talks of contractual undertaking between the Appellant and the Respondents and a breach of that contractual undertaking. For clarity purpose it reads:-
PARTICULARS
b) Exhibit P1 is a contractual undertaking between the Appellant and the Respondents to the effect that the Appellant will stay on the leased property from January to December 2013.
c) Exhibits P1 and P4 (1-6) are a breach of contractual undertaking which will entitle the Appellant to be awarded general damages. Furthermore in TINDAFAI V JARA (2016) AFWLR (Pt. 834) 96 at 109 the Supreme Court held:-
The particulars in support of a ground of Appeal form part and parcel of the ground of Appeal.
They particularize or specify errors or mistakes which show how the complaint against the decision of the lower Court is going to be canvassed by a party.?
At page 173 of the Record of Appeal the lower Court held: –
“The issue whether there was a breach of contract in this case will have no place in the light of the evidence before this Court.”
Furthermore, the lower Court held at page 175 of the Record thus: –
“Before concluding, I wish to observe that the reliefs (a) and (b) respectively will not be granted for they have not been established given the state of pleadings and evidence so far adduced in this case.”
From the foregoing, it is crystal clear that the issue for determination is based on the grounds of Appeal and also relate to the state of affairs before the lower Court; I so hold. The first issue of the preliminary objection is therefore resolved in favour of the Appellant. As to the second leg of the objection, the Respondents are contending that the suit filed at the lower Court was incompetent as there was no valid defendant that no leave was sought to sue the N.B.A. in a representative capacity, that the N.B.A. Sokoto Branch is an incorporated trustee and should be sued in its corporate name, that the four named Respondents were picked randomly.
On the issue that the four Respondents were picked randomly and sued as representing the N.B.A., a careful look at paragraph 2 of the amended statement of claim reflected at pages 47-48 of the Record of Appeal and the Notice of Appeal reflected at page 177 of the Record shows that the Respondents were described as for themselves and on behalf of the members of Nigeria Bar Association, Sokoto Branch. At page 47 of the Record, which reflects the Amended Statement of Claim, the Respondents were addressed as executives and principal members of N.B.A. Sokoto Branch. It therefore follows that the Respondents were made parties in this suit by virtue of their positions and not randomly picked and I so hold. This issue is therefore resolved in favour of the Appellants.
On the issue that the N.B.A. is an incorporated trustee, that no suit can be maintained against it except in its corporate name ‘Registered Trustees of the Nigeria Bar Association’, that being an Incorporated Trustee, it cannot be sued in a representative capacity, in the case of FAWEHINMI V. N.B.A. & ORS. NO. 2 (1989) LPLER 1259 SC, it was held that: – “The name Nigerian Bar Association is not a registered name under any statute although it is recognized and accepted as the name of the body by various statutes. The Nigeria Bar Association loses nothing by being declared a non juristic person. It can always sue and be sued in a representative capacity.”
From the decision of the Supreme Court in FAWEHINMI’S case as reproduced above the Nigeria Bar Association is not a registered name under any statute, nor is it an incorporated trustee and can sue and be sued in a representative capacity. This issue is also resolved in favour of the Appellant. On the issue of leave not obtained by the Appellant in suing the N.B.A. in a representative capacity raised in the preliminary objection, inMOZIE V. MBAMALU (Supra) page 425 at 461 the Supreme Court held that: – ‘Even where the leave was not sought or granted, a Court may see the case as a representative action if satisfied that the action in its nature was fought by the parties in representative capacities.’
Furthermore, since the Nigeria Bar Association is not a juristic entity and not a natural person, the Appellant was right to sue the members (the Respondents) who are natural persons. In ATAGUBA V. GURA (2005) 21 NSCQR 720 at 731 the Supreme Court held that:- “As a general principle only natural persons that is human beings and juristic or artificial persons such as body corporate are competent to sue or be sued.” The arguments of the Respondents in this regard are therefore discountenanced. This issue is accordingly resolved in favour of the Appellants.
After a thorough appraisal of the preliminary objection and the written arguments of counsel on both sides, I find that the preliminary objection has no substance it is accordingly dismissed.
SUBMISSIONS OF THE RESPONDENTS.
As regards the main Appeal, the Respondents submitted that; the Appellant’s claims before the lower Court as can be seen at pages 51 – 52 of the Record of Appeal are as follows:
“WHEREOF the plaintiff is aggrieved and prays this Honourable Court for the following reliefs:
a) An order of this Honourable Court declaring that by the letter dated 30th April, 2013 signed by the said A.M.Dan-Ige Esq., and addressed to the plaintiff, Nigerian Bar Association Sokoto Branch has unilaterally repudiated the contract with the Plaintiff.
b) An order of this Honourable Court declaring that the unilateral repudiation of the contract is a breach of the contract which entitles the plaintiff to a claim in damages.
c) An order of his honourable, Court directing the defendants and members of Nigerian Bar Association, Sokoto Branch to jointly and severally pay the plaintiff the sum of Fifteen Million Naira (N15,000,000.00) only as special and general damages broken down as follows:
SPECIAL DAMAGES
1. Value of improvements made by plaintiff on the secretariat N2,007,300.00.
2. Loss of expected profit from May 2013 to December, 2013 N5,000,000.00
3. Money stolen from the secretariat during destruction of same by the defendants
N725,00000.00
Total N7, 732,300.00
GENERAL DAMAGES
1. The sum of N7,267,700.00 as general damages for breach of contract ‘against the defendants.
According to counsel at the conclusion of hearing, the trial Court at page 19 of the record refused to grant reliefs A, B, C, 2, 3 and the general damages of N7,267,700 claimed by the Appellant, but granted the Appellant the cost of improvement allegedly carried out by him at the Nigerian Bar Association Secretariat.
That the Appellant is not happy with this and have made it the subject of grounds 2 and 3 of the Notice and Grounds of Appeal.
He submitted for the Respondents that the trial Court was right in its decision not to grant those reliefs.
That relief (a) invited the trial Court to hold that the quit notice Exhibit P1 amounted to a unilateral repudiation of the tenancy agreement between the appellant and the Nigerian Bar Association premised on the assumption that the appellant was a yearly tenant. He said relief (b) invited the court to hold that the alleged unilateral repudiation amounted to a breach of contract.
According counsel, the trial Court after evaluating the evidence of the parties extensively came to the conclusion that the appellant was a monthly tenant and that there was no breach of contract as reflected at pages 173 – 174.
That the findings of the trial Court are findings of fact and this Court being an Appellant Court cannot interfere with them unless the Appellant can show that they are perverse and cited IDOWU V. LALA (2009) 1 WRN 176 at 192 Line 20 – 30.
That the evaluation of evidence and ascription of probative value is the primary responsibility of the trial Court and citedOYEFOLU V. SODIQ (2001) 1 WRN 52 at 82 Lines 10 – 25
In the course of the judgment counsel submitted, the trial Court said this of Exhibit P1, at page 172 of the record,” The Exhibit DJ along with the evidence by DW1 and 2 overwhelmed the evidence of PW1 and Exhibit P1.”
That the Appellant has not shown that the trial Court was wrong in so holding and this Court being an Appellate Court cannot hold otherwise.
It is therefore submitted by the Respondents that the trial Court was right to have refused to award reliefs A & B because the Court found as a fact that the contract was effectively terminated by the one month Notice and therefore there was no breach of contract. The Court said: –
“Therefore the quit notice having expired, the defendant action cannot be faulted in the circumstances. The issue whether there was breach of contract in this case will have no place in the light of the evidence before this Court:” Page 173 of the records.
According to counsel, having found as a fact that there was no breach of contract, it is submitted for the Respondents that the trial Court was right not to have awarded the general and special damages listed as subhead C at P.51 of the record except the value of improvement which was awarded by the Court and which is the subject of the Respondents appeal pending before this Court as appeal No. CA/S/148/2016.
He said the word damages is a sort of pecuniary compensation or indemnity recoverable in the Courts by any person who suffered a loss, detriment or injury, be it to his person, property or right through the unlawful or wrongful act or omission or negligence of another and referred to SHELL PETROLEUM DEV. CO. V. TIEBO VII (1996) 4 NWLR (Pt. 445) 657, PAUL EBE V. ALBERT NNAMANI & ORS (1997) 7 NWLR (Pt. 513) 479.
Being a Court of first instance he stated, it has unfettered discretion to award or not to award general damages being the Court that had the benefit of hearing the testimony of witnesses and watched their demeanor.
As a general rule he said, an Appellate Court will have no business to interfere with the decision of the lower Court once such decision was based on the evidence born out of the records. He cited ATUNGWU V. OCHEKWU (2005) 9 WRN 125 P. 151 Lines 20-30.
He submitted that in the instant case, the trial Court based its decision on the evidence before it and on sound legal principles. Having held that there was no breach of contract, the trial Court cannot turn round to award general damages because general damages only flow from a breach of a contractual obligation.
That in the same vein, the claim of loss of expected income from May 2013 to December, 2013 could not legally have been awarded, the trial Court having held that there was no breach of contract. This is so because it is only if the trial Court found that there was a breach of contract that it would have gone ahead to consider the consequential damages.
According counsel, this apart the items of special damages have to be specifically pleaded and proved and cited NEKA B.B.B. MANU V ACB LTD (2004) 15 WRN 1@ 16-17 LINES 45-15
In a bid to prove the items of special damages, counsel further submitted, the Appellant as PW1 gave evidence to the effect that he would have made a profit of N5,000, 000.00 between May and December, 2013. He also alleged that the sum of N725,000.00 was stolen from the Secretariat by agents of the Respondents and referred to the evidence of the Appellant as PW1 at page 73 of the records.
That the cross examination of PW1 that ensued at page 81 of the records shows clearly that the Appellant could not establish any of the heads of claim as Exhibit P5 was shown not to have any relationship with the parties in the suit prompting the trial judge at page 174 of the record of appeal which shows that:-
“The Exhibit P5 tendered before this Court is of no moment on this point? as reflected at page 174 of the record of appeal He said similar to that is the fact that the issue of N725, 000 allegedly stolen by workmen of the Respondents is an allegation of commission of a crime and by law, is required to be proved beyond reasonable doubt and cited EYA & ORS V. OLOPADE & ANOR (2011) 5 SC (Pt.11) 47 at 75 lines 10 – 20. He urged the Court to dismiss the Appeal.”
RESOLUTION OF THE APPEAL
I will determine this Appeal on the two issues formulated by the Appellant which the Respondents adopted in their brief of argument. That is: –
a) Whether Exhibit P1 did not create a contractual relationship between the Appellant and the Respondents with the effect that Exhibits P2 and P4 (1-6) are not a breach of the relationship as to entitle the Appellant to the reliefs sought.
b) Whether the trial Court was right to have refused to grant the Appellants reliefs apart from the claim for cost of improvements.
Exhibit P1 is the deposit slip evidencing the payment of One Hundred and Fifty Thousand Naira (N150,000) by the Appellant to the Respondents for the rent of NBA Secretariat, Sokoto from January 2013 to December 2013. For clarity purposes the acknowledgment of the Respondents of the receipt of the money through the 4th Respondent as shown at page 29 of the Record reads: –
“Rent for NBA Secretariat from January – December 2013. The photocopy of this slip has been received by me and same handed over to the NBA Sokoto Branch Treasurer (Mrs. Aisha Illo).”
In BILANTE INTERNATIONAL LTD. V. NIGERIA DEPOSIT INSURANCE CORPORATION (2011) 6 MJSC (Part 1) 69 at 80 where the Supreme Court held:-
“Contract is defined as an agreement between two or more persons which creates an obligation to do or not to do a particular thing. Its essentials are competent parties, subject matter, a legal consideration mutuality of agreement and mutuality of obligation. To constitute a binding contract between parties, there must be a meeting of the minds, often referred to as consensus ad idem. The mutual consent relates to offer and acceptance. An offer is an expression by a party of readiness to contract on the terms specified by him, which if accepted by the offeree signifies a clear and unequivocal intention to accept the offer.”
It is therefore clear that Exhibit P1 is an expression by both the Appellant and the Respondents of their readiness to contract which indeed materialized into a binding contract in which the Respondents rented the NBA Secretariat to the Appellant for a consideration of N150,000. The acknowledgment of the rent which I reproduced above is a clear admission which is binding on the Respondents and I so hold.
In DANIEL V INEC (2015) AFWLR (Part 789) 993 at 1028 the Supreme Court held:-
“An admission clearly and unequivocally made is the best evidence against the person making it”
Exhibit P1 therefore created a contractual relationship between the Appellant and the Respondents and I so hold. However it was the argument of the Respondents, that the lower Court at Pages 173 -174 of the Record, after evaluating the evidence of the parties, came to the conclusion that the Appellant was a monthly tenant and that there was no breach of contract. That the findings of the lower Court are findings of fact and an Appellate Court cannot interfere with them unless the Appellant can show that they are perverse. The issue for determination now is whether the findings and the Judgment of the lower Court are perverse to warrant the interference of this Court or not? At Page 170 of the Record of Appeal the lower court held:- “On the issue whether the tenancy relationship was yearly or monthly in the circumstance of this case from the face of Exhibit P1, it is clear and undisputed that the plaintiff paid the sum of N150,000.00 as rent from January – December 2013 into the account of NBA Sokoto Branch, and same confirmed by the Secretary to the management committee..
Herein, Plaintiff maintained that payment having been made to cover the entire year, he remains a yearly tenant and any action to the contrary amount to a breach of contract.
But having considered the evidence of the defence vide witnesses and the documents made available, the Plaintiff position will not be the same. For example in Exhibit D4 titled ‘PROPOSED RENT INCREMENT’ a letter dated 27/04/2012, paragraph 2 therein, the letter clearly said the tenancy should be yearly. But less than a month later, in Exhibit D3 the situation changed to monthly tenancy. Paragraph 2 of the document reads:-
2) The tenancy will remain a monthly tenancy in view of the fact that we shall soon embark on the renovation of the Secretariat. I have carefully read and examined Exhibit D3, and I observed that the exhibit is dated 17/05/2012. While Exhibit P1 (the deposit slip) and the acknowledgment for the receipt of the payment by the Appellant for the rent of the NBA Secretariat for the year 2013, are both dated 25/01/2013. Exhibit P1 was made without any qualification or a proviso indicating that if the Respondents, would want the property before the end of December 2013, the Appellant would be refunded the unexpired rent.
It therefore follows that Exhibit D3 covers the 2012 tenancy only and not 2013 tenancy. I so hold. The lower Court was therefore in error when it held that Exhibit D3 along with the evidence of DW 1 & 2 overwhelmed the evidence of PW1 and Exhibit P1 and that the tenancy of the Appellant was monthly and not a yearly tenancy. Exhibit P1 having created contractual relationship between the Appellant and the Respondents, it is expected that the Respondents would respect the agreement.
This is because parties are bound by their agreements. SeeGENERAL OIL LTD. V. FSB INTN?L BANK PLC (2005) AFWLR (Part 277) 1007 at 1015. It is equally the duty of the Court to enforce a contract duly entered into by parties. In OMEGA BANK PLC V. O.B.C. LTD. (2005) 21 NSCQR 771 at 794, the Supreme Court held:-
“After due consideration of all the circumstances and if satisfied there was an ascertainable and determinate intention to contract, the Court will strive to give effect to that intention looking at the intent and not in mere form.”
It automatically follows therefore that any attempt by either the Appellant or the Respondents to negate the intention in Exhibit P1 is a breach of contract and I so hold.
Exhibit P2 is a one month notice to quit the rented building issued to the Appellant by the Respondents. It is dated 30/04/2013. The Respondents having accepted the money for the period January 2013 to December 2013, they are duty bound to allow the Appellant to use the property for that period. Even if the Respondents intend to recover the property the Appellant is entitled to be served with six months’ notice on the expiration of his tenancy and I so hold. IN ELIOCHIN NIG. LTD. & ORS. V. MBADIWE (1986) LPELR 1119 ? SC the Apex Court held that:-
“Even where a tenancy has come to an end a landlord is not entitled to go into the premises and physically throw out the tenant; but must give the statutory notices to the person in possession.”
Based on the above therefore, Exhibit P2 (the one month notice to quit) served on the Appellant is of no moment and amounts to the breach of the contract by the Respondents. Accordingly, the holding of the lower Court reflected at page 173 paragraph 2 of the Record was given per incuriam. The lower Court held:-
“… The plaintiff having been put on notice to quit in the month of May and he remained on the property after the expiration of his time cannot be faulted.”
It was the argument of the Appellant’s counsel that Exhibits P4 (1 – 6) are the photographs showing how the Respondents demolished the main building, damaged the fixtures put in place by the Appellant and the deep, wide and long hole dug at the entrance to the property so much that it is impossible to carry on business there. That there was no way any vehicle could enter the property. That the effect of Exhibits P2 and P4 (1-6) is a breach of the contract between the Appellants and the Respondents. The lower Court at Page 173 of the Record held:-
“… the Plaintiff having been put on notice to quit in the month of May and he remained in the property after the expiration of his time to vacate, the action of the Defendants cannot be faulted.”
This Court having held earlier in this Judgment that the statutory notice of six months to quit the property was not served on the Plaintiff by the Respondents, the act of demolition of the property by the Respondents, when the tenancy of the Appellant did not come to an end was a breach of the contract by the Respondents and I so hold.
Having agreed with the submissions of the learned Plaintiff’s counsel that the Respondents have breached the contract they entered with the Appellant, the Appellant is entitled to the reliefs which are both general and special damages. InJOB TRADE INVESTMENT LTD. V. OLUBISI (Supra) at Page 1885, it was held that:-
“Once there is a breach of contract, the innocent party is generally entitled to damages for an encroachment of his legal right. The damages which a party receives is such that will reasonably arise according to the usual course of things from such breach or such as may have reasonably been foreseeable by the parties at the time of making the contract as the probable result of its breaches.”
On the issue raised by the Respondents that the Appellant did not specifically plead the special damages he claimed before the lower Court, it is true that special damages must be specifically pleaded and strictly proved. See DANIEL HOLDINGS LTD. V. UBA PLC (2005) FWLR (Part 277) 895 at 904. This Court observes that by Paragraphs 16 and 17 of the amended statement of claim which is reflected at Page 50 of the Record of Appeal, the Appellant pleaded loss of expected income/profit. By paragraph 19 of the same amended Statement of Claim, the Appellant pleaded the loss of N725, 000 reflected at Page 51 of the Record. These were proved at Pages 73 and 75 of the Record respectively. This Court discovered that the Appellant’s evidence to the facts pleaded was not contradicted. It is trite that the lower Court ought to have accepted and acted upon them. See IYERE V. BENDEL FEED AND FLOUR MILL LTD. (2009) AFWLR (Part 453) 1217 at 1247. The Appellant is therefore entitled to the Special damages and I so hold.
The Respondents argument that it was only the Boys Quarters of the Secretariat that was rented to the Appellant cannot stand because, Exhibit P1 reads:-
“Rent of NBA Secretariat.”
Furthermore during cross examination at Page 104 of the Records DW1 under cross examination stated:- “NBA Secretariat includes all the buildings and appurtenances.”
From the above therefore, the main building was rented to the Appellant and I so hold. After a thorough appraisal of the Notice of Appeal, the Briefs of arguments of the Appellant and the Respondents, this Appeal is meritorious and is hereby allowed.
The Judgment of Sokoto State High Court in Suit No. SS/27/2013 delivered on 15th May, 2016 delivered by Hon. Justice D.B. Sambo is hereby set aside except that part allowing the Appellant to recover cost of improvement on the property and the dismissal of the counter claim of the Respondents. The Appellant’s reliefs not granted by the lower Court are hereby granted.
AMINA AUDI WAMBAI, J.C.A.: I read in advance the draft judgment just delivered by my learned brother, Abdullahi M. Bayero, JCA. I agree with his reasoning and conclusion that this appeal is meritorious and also allowed the appeal. I abide by the consequential order contained in the lead judgment.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Judgment of my learned Brother ABDULLAHI M. BAYERO, JCA just delivered and I am in agreement with his reasoning and conclusions in allowing the Appeal as meritorious. Consequently, the decision of the Court below delivered in Appeal on the 15-7-2016 is hereby set aside. I abide by other consequential orders made thereto.
Appearances:
Magnus Ihejirika, Esq.For Appellant(s)
Chief Steve U. NwokeFor Respondent(s)
