IN THE COURT OF APPEAL
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
ON MONDAY, 22ND MAY 2017
Appeal No: CA/OW/106/2013
Before Their Lordships:
AYOBODE OLUJIMI LOKULO-SODIPE, JCA
ITA GEORGE MBABA, JCA
TUNDE OYEBANJI AWOTOYE, JCA
INCORPORATED TRUSTEES OF ROH EMPIRE MISSION
MR. WILFRED O. OPARA
1. Privity of Contract – Inability of a party without privity to a transaction to possess the Locus Standi to institute an action based on that transaction
Doctrine of privity of contract
“Thus, Respondent, having denied knowing the Appellant in relation to Exhibit A24/D1 (tenancy agreement), and having not been served with notice of transition of Dr. Degaya’s religious body in the Agreement, to the Appellant, to take the benefit of the tenancy agreement, and the said Dr. Degaya, having not been joined in the Suit, or called to give evidence to establish the missing link(s), Appellant cannot, in my opinion, invoke the rights inherent in the tenancy contract, being a stranger to the transaction, and so had no locus standi to institute the action, in its sole name (without joining the said Evangelist K.K. Degaya). See The Vessel Leona II Vs First Fuels Ltd (2002) LPELR – 1284 SC; LSDPC & Anor. Vs Nigerian Land & Sea Foods Ltd (1992) LPELR. SC. 98/89; Dumlop Preumatic Tyre Co. Ltd Vs Selfridges & Co. Ltd (1915) AC. 847; Rebold Industries Ltd Vs Magreola & Ors (2015) LPELR – 24612 SC.” Per MBABA, JCA. read in context
2. Validity of Contract – Definition of and essential elements that constitute a valid contract
Meaning of contract and essential elements of a valid contract
“A contract is a legally binding agreement between two or more persons, by which right are acquired by the party, in return for acts or forbearance, on the part of the other. It is a bilateral aﬀair, which requires consensus “ad idem” of the parties. See Odutola vs Papersack Nig Ltd (2006) 18 NWLR (pt 1012) 470; Orient Bank (Nig) Plc vs Bilante Int’l Ltd (1997) 8 NWLR (PT.515) 37; Ashaka vs Nwachukwu (2013) LPELR- 20272 (CA). See also Alfa System Com. Ltd & Ors vs Keji Orisajimi & Ors (2016) LPELR – 40295 (CA), on the five essentials of a valid contract, namely, oﬀer, acceptance, consideration, intention to create legal relationship and capacity to contract, and all the five ingredients must co-exist, before a valid contract can exist. Okubule vs Oyagbola (1990) 4 NWLR (pt.147) 723. Amana Suite and Hotel Ltd vs PDP (2007)6 NWLR (pt.1031) 453.” Per MBABA, JCA. read in context
3. Specific Performance – Purpose of an order of specific performance
Basis for the remedy of specific performance
“An Order of specific performance can only be made to enforce existing valid contract, where there is attempt to rescind or evade ones duty in the contract. See NCI Ltd Vs UACN Property Dev. Co. Plc (2016) LPELR – 41426 (CA; LSDPC Vs NL & SF Ltd (1992) LPELR – 1744 SC; Nwachukwu Vs Okaelu (2015) LPELR – 24276 (CA); Ohaeri Vs Yusuf & Ors (2009) LPELR – 361 (SC).” Per MBABA, JCA. read in context
4. Standard of Proof – Standard of proof where there are criminal allegations in a civil claim
The required standard of proof where the commission of crime is in issue in any proceedings
“I agree with the trial Court that the allegation of malicious damage/destruction of the Appellant’s properties and/or carting away of the properties (meaning stealing) needed to be proved beyond reasonable doubt, being allegation of crimes in the a civil claim. See Section 135(1) (2) of the Evidence Act, 2011.” Per MBABA, JCA. read in context
LEAD JUDGMENT DELIVERED BY MBABA, JCA.
This is an appeal against the judgment of Imo State High Court in Suit No. HOW/65/2003, delivered on 29/10/12 by Hon. Justice N.B. Ukoha, wherein the Court dismissed the claims of the Plaintiff, now Appellant.
At the Lower Court the Appellant, as per the writ of summons, filed on 3/3/2003, had sought:
(1) A declaration that the tenancy relationship of the Plaintiff and Defendant in respect of Plots 192/2000 (sic) Ikenegbu Layout Extension (hereinafter called “The Premises”) is valid and subsisting until the Defendant transfers his interest in the premises to the Plaintiff.
(2) An Order of Court on the Defendant to transfer his interest in all that pieces or parcel of land known as and called Plots 192/2000 (sic) Ikenegbu Layout Extension at Owerri, Imo State, to the Plaintiff pursuant to the agreement reached on between the Plaintiff and the Defendant on or about 13th December, 2002 at Ezeogba Emekuku, Owerri, where by the Defendant agreed to transfer same to the Plaintiff and the Plaintiff accepted.
(3) Injunction restraining the Defendant, his servants, agents, workmen, privies howsoever from interfering and/or from further interference with the Plaintiff’s right to peaceful and quite enjoyment of the said premises and/or alienating or disposing of the premises to any person or persons other than the Plaintiff.”
Appellant had become a tenant of the Defendant and using the premises for religious purposes, but later their relationship suffered friction, leading to accumulation of rents, and attempt to eject the Appellant, forcefully. It became a Police case, and the Appellant claimed the Respondent decided to sell the property to a 3rd party. Appellant said that on getting the information of intention to sell the property, it approached the Respondent and offered to buy it. According to Appellant, the Respondent gave a condition, which was, that Appellant must clear the arrears of rent before being considered to buy the property. Appellant, therefore, raised the sum of Sixty Nine Thousand Naira (N69, 00.00) to clear the accumulated arrears of rents covering January 2001 to December 2001 and January 2002 to November 2002 (Exhibit 2). The tenancy Agreement was Exhibit A 24 (Exhibit D1).
Appellant alleged that the parties, eventually, agreed on the purchase of the premises by Appellant, and that the Respondent released photocopy of his title documents to Appellant, to enable it conduct a search at the Lands Registry, Owerri, to confirm the title of the Respondent; Appellant prepared a Power of Attorney for execution by the Respondent. Appellant also wrote a cheque for the sum of 3 Million Naira, in the name of the Respondent, being what it said to be the agreed price of the property – Exhibit E.
The draft Power of Attorney was Exhibit D. The Respondent, eventually, refused to sign the prepared Power of Attorney or to collect the money.
The Respondent, according to appellant, then renewed his hostility to force the Appellant out of the property. Appellant filed this Suit in the High Court. Appellant later amended the Statement of claim, seeking the following reliefs:
(a) The Sum of N6, 809,919.00 (Six Million Eight Hundred and Nine Thousand Nine Hundred and Nineteen Naira) for unlawfully breaking into the premises in peaceful possession of the Plaintiff and maliciously destroyed and carting away the Plaintiff’s property.
(b) An Order of specific performance, compelling the Defendant to sell or transfer all his interest in the premises to the Plaintiff, and execute all necessary documents of title in respect of same for the consideration of N3 Million as agreed by the parties.
IN THE ALTERNATIVE TO (b) ABOVE:
(c) The sum of N100, 000,000 (One Hundred Million Naira) as damages for the breach of the said agreement to sell and transfer his interest in the said property, Plots 192/200 Ikenegbu Layout Extension, Owerri to the Plaintiff.”
The Respondent’s case was that Appellant, through one Evangelist Dr. Kabiru K. De-Gaya, rented the premises, but breached the terms of the tenancy and erected permanent structures on the land using steel and blocks, refused to pay the rent of N2000.00 per month, despite series of demands; he said that he gave Appellant ample time to give up possession of the premises to the Respondent, but he (Appellant) refused to comply with the demands; that he (Respondent) instructed his lawyer to issue appropriate statutory Notices to the said Dr. De-Gaya, which was done and yet he refused to vacate the premises.
He (Respondent) filed a case of recovery of possession against the said Dr. De-Gaya at the Magistrate’s Court, and while that case was still pending, Dr. De-Gaya, through the Claimant, instituted this Suit at the High Court alleging all sorts of unfounded claims (as earlier reproduced above); that the said Dr. De-Gaya and his church went to the extent of applying to the Ministry of Lands, Survey and Urban Planning, Owerri, for a grant of statutory right of occupancy over the said land; that on hearing this, he (Respondent) entered a caveat against the application, and this annoyed the said Dr. De-Gaya and his church, who proceeded to make malicious complaints to the Police against him, which complaints were discovered to be false by the Police.
The Respondent said he had always dealt with the said Dr. De-Gaya, as his tenant, and not with Appellant, who is unknown to him (Respondent). He said he visited Dr. De-Gaya in September 2002, and told him (De-Gaya) of his (Respondent’s) intention to develop the premises. He stated that he did not and does not intend to sell his property; he never advertised the property for sale and never discussed any sale of the property with Dr. De-Gaya, his church and/or with any of his agents. He added that Exhibit D (Power of Attorney) and Exhibit E (Cheque) were mere fabrications of the Appellant, for the purpose of the Suit. He never applied any form of violence to recover the property.
After hearing the case, and considering the addresses of Counsel, the trial Court dismissed the claim of the Claimant (Appellant), holding that the case was frivolous, vexatious and an attempt by the Appellant to deprive the Respondent of the right to taking back his land. The Court also held that Appellant had no locus standi to institute the action.
That is the decision Appellant appealed against, as per the Notice and Grounds of Appeal on pages 270 to 275 of the Records, disclosing 10 grounds of Appeal, filed on 28/11/2012. Appellant filed brief of arguments on 23/3/2016, which was deemed duly filed on 11/4/16, and donated the following issues for the consideration of the appeal:
(1) Whether the trial Court was right when it held that Appellant had no locus standi to bring the Suit and thereby dismissed the Suit. (Grounds 1 and 2)
(2) Whether the trial Court was right when it held that the Appellant failed to prove that the Respondent unlawfully destroyed and carted away the Appellant’s properties (Grounds 3, 4, 5 and 6).
(3) Whether the trial Court was right when it held that there was no enforceable/binding contract between the Appellant and the Respondent for the sale of the land, and therefore none was breached by the Respondent to entitle the Appellant to an Order for specific performance or for specific damages (Grounds 8, 9 and 10).
The Respondent filed his brief of arguments on 3/5/16 and adopted the 3 Issues distilled by Appellant, for the determination of the Appeal. The Appeal was heard on 3/4/2017, when the parties adopted their briefs and urged us, accordingly.
Arguing Issue one, learned Counsel for the Appellant, Mike O. Onyeka Esq, submitted that the trial Court was wrong, when it held as it did that there was no nexus between Appellant and the tenancy agreement, and that Appellant had no locus standi to bring the action. He referred us to page 201, where it was held that there was no document to show that K.L.M Royal Ministry had metamorphosed to Rohi Empire Mission, that Exhibits A24 and D1 tendered showed they were entered into between the Defendant and Evangelist K.K. Daegaya, representing K.L.M Royal Ministry. He also referred us to page 206 of the Records, where the trial Court held:
“On the contrary, the Court found out that the Claimant on record had no locus standi to institute this action, because there is no nexus shown between the Claimant and the religious group Evan. K.K. Degaya represented in his tenancy agreement. The said Evang. Degaya, who would have proved the nexus between the two, did not testify.”
Counsel argued that Exhibit D1 showed, in paragraph 2 thereof, that Dr. Degaya, in entering into the agreement, did so representing an unincorporated religious organization in 1988 (sic). He said that the said religious organization was eventually incorporated in the name of the Appellant – Rohi Empire Mission, and that Appellant informed the Respondent of the incorporation, that it was now the proper tenant of the Respondent on the property. He referred us to pages 154 – 155 of the Records, where the Respondent was asked whether he knew Dr. K.K. Degaya as the general Superintendent of the Appellant, and he answered:
“No. I know him as my tenant, propagating his Ministry under the name and style as Rohi Empire Mission.”
Thus, Counsel said, that irrespective of what the unincorporated body, represented by Dr. Degaya in the tenancy Agreement, was called, the respondent knew that the name had changed to Rohi Empire Mission, the name of the Appellant. He added that, after the incorporation, every other document that came from Respondent on tenancy was addressed to the Appellant as the tenant, not Dr. Degaya. He referred us to Exhibit 3 – Receipt for arrears of Rent – on page 208 of the Records; Exhibit D – Quit Notice – page 267 of the Records; Exhibit C – Notice of Owners’ Intention to Recover Possession – page 266, which documents were tendered through the Respondent, under cross examination. Counsel submitted that in the face of the above uncontroverted evidence, the trial Court was wrong to hold that the Respondent did not know the Appellant, and that the Appellant had no locus standi to institute the action. He added that it was not necessary for Dr. Degaya to testify, to establish nexus between him and the Appellant, as the documents, issued by the Respondent and his oral evidence had corroborated the testimony of the witnesses of the Appellant on the nexus. He said that the Respondent was estopped from saying he did not know the Appellant or that Appellant was not his tenant. He relied on the case of WAEC Vs Akinkunmi (2002) 28 WRN 13 at 29 – 30.
On Issue 2, whether the Court was right to hold that Appellant failed to prove that Respondent, unlawfully destroyed or carted away Appellant’s properties, Counsel answered in the negative. He referred us to page 202 of the Records, where the trial Court said that the allegation of carting away property and malicious damage were criminal imputations, and that having alleged criminal offence, must be proved, beyond reasonable doubt – Section 135(2) of the Evidence Act; that that standard of proof was not met and that the Claimant did not prove that its properties, worth N6, 809,919, were either destroyed, damaged or carted way.
Counsel again, referred us to page 202 of the Records where trial Court said:
“PW1 in answer to questions put to him by the defence Counsel during cross examination told the Court that they wrote a petition to the Commissioner of Police and that he does not know whether the case was assigned to any department. On the other hand, PW2 told the Court that the case was reported to the State CID. The two pieces of evidence contradicted each other. It is trite that once there is a contradiction in the evidence of witnesses, a doubt has been reacted (sic) and the Court is bound not to accept such evidence.”
He submitted that the trial Court was wrong in holding that Appellant failed to prove that its properties were destroyed or carted away; he said that Appellant had pleaded and given evidence of the invasion of its premises by the Respondent and of destruction of specified properties; that that evidence was unshaken under cross examination; that the Respondent only made general denial of those averments both in his pleadings and evidence in-chief.
Counsel admitted that the standard of proof of criminal imputation in a civil case is the same standard of proof beyond reasonable doubt, but added that Appellant allegation did not raise criminal imputation or motive; he said that allegation of forcible entry and destruction of the properties did not raise issue of criminal motive; that Appellant can succeed without proving criminal motive, thus the standard of proof was on the balance of probabilities. He relied on Section 35(1) of the Evidence Act 2011 and the case of Omorhirhi Vs Enatevwere (1988) 3 SC 207; Arowolo Vs Ifabiyi (2002) ALL FWLR (pt.95) 2616; Maduabu Vs Lay (2006) ALL FWLR (pt.300) 1671; Ikoku Vs Oli (1962) ALL FWLR (pt.1) 195.
Counsel asserted that the Appellant had established the facts of the destruction of Appellant’s properties but the trial Court, wrongly, held otherwise. He added that, even where proof must be done beyond reasonable doubt, it does not mean proof beyond every shadow of doubt. He relied on Ukpe Vs State (2002) FWLR (pt.103) 416 at 435.
On the alleged contradiction between PW1 and PW2 on the report to the Commissioner of Police and State CID, Counsel said there was no material contradiction, as there was evidence that the matter was reported at the State Police in Owerri, but Respondent used his influence and friends in the State CID to frustrate the case, and so Appellant wrote series of letters to the Commissioner of Police on the matter. He added that it is a matter of judicial notice, that all departments of the Police in the State work under the Commissioner of Police, and the State CID is one of such departments.
On the issue of nexus, Counsel said the trial Court was in error to say that there was no nexus between the receipts tendered for the damaged properties and the Claimant, whereas PW1 and PW2 gave graphic account of the destruction of the named properties and tendered receipts of the items, though the receipts were not written in Appellant’s name.
On Issue 3, that there was no binding contract between the parties, for sale of the land, Counsel said there was. He argued that the case was not for enforcement of the power of attorney as a contract document, already executed by the parties; rather the claim was to order specific performance of contract of sale, which was to compel the Respondent to sign and date the document. He argued that the Respondent refused to go ahead with the contract at the point of execution, and so breached the contract. He argued that the Exhibit D (unexecuted power of attorney) was proof of both the contract of sale and of its breach; that it was wrong for the trial Court to hold that non-signing and dating of the power of attorney (Exhibit D) was proof that it was unenforceable transaction. He urged us to hold that Appellant was entitled to order of specific performance and cited some authorities on specific performance.
He urged us to resolve the Issues for Appellant and allow the appeal.
Responding, A. Chiedu Mezu Esq, Counsel for the Respondent submitted on issue one, that the tenancy Agreement (Exhibit A24 or D1) was between the Respondent and Dr. Karibu De-Degaya, representing a religious organization known as and called K.L.M Royal Ministry Destined for Greatness, and not Incorporated Trustees of Rohi Empire Mission; he said that the said tenancy agreement was made in 1998 (not 1988); that the Claimant/Appellant is Incorporated Trustees of Rohi Empire Mission. That there is nothing before the Court to show that the religious organization, represented by Evangelist Dr. Kabiru De-Gaya (K.L.M Royal Ministry Destined for Greatness) had metamorphosed into Incorporated Trustees of Rohi Empire Mission. He argued that Exhibit A – certificate of incorporation of the Appellant – was not enough proof of the change of status of the former organization; that Evangelist Dr. De-gaya, who would have established the nexus between and the 2 religious organizations, did not testify. Thus, he said, the trial Court was right in its holding, that Appellant had no locus standi to bring the action, having not been the tenant of the Respondent on the property, as per Exhibit A24/D1.
Counsel added that, in the circumstances of this case, the appropriate person to have established a link between himself and the religious body he represented (K.L.M Royal Empire Mission) at the transaction, with the Appellant, was the Evangelist Dr. Degaya, but he failed to testify.
On Issue 2, Counsel conceded that the provision of Section 135(1) of the Evidence Act, which prescribes proof beyond reasonable doubt of an allegation of crime in civil or criminal proceedings, only comes into play, where the commission of a crime by a party is directly, in issue in the proceedings and not otherwise (Arowolo Vs Ifabiyi (2002) 4 NWLR (pt.757) 356, ratio 4).
However, he said, Appellant still had the duty to prove the allegations of destruction and carting away of the property of the Appellant, on the preponderance of evidence, because he who asserts must prove. Counsel said that Appellant’s Exhibit A – C2 were letters to the Police, alleging that the Respondent invaded its premises and damaged, destroyed or carted away its properties; that Appellant claimed to have pictures of some of the properties destroyed by the Respondent, but those pictures (showing the actual commission of the offences) were not tendered at the trial; that Appellant rather tendered Exhibits F – O, P – Z and AA – A 23 as evidence of purchase of the items, allegedly damaged, destroyed or carted away by the Respondent. Counsel said none of the receipts was recovered from the Respondent, and none of the damaged, destroyed items was tendered at the trial; that the Court found as a fact that the receipts were not issued in the name of Appellant, but in the various names of Rohi Chapel, Dr. Kleham De-Gaya, Royal Holy Ghostant Empire or K.L.M Royal Fellowship etc, and none of the witnesses showed that Appellant goes by those names.
On Issue 3, whether there was enforceable contract between Respondent and Appellant, Counsel answered in the negative. He said that for a contract to be valid, there must be offer, acceptance, consideration, intention to create legal relationship and capacity to contract, and that all the ingredients must co-exist. He relied on Orent Bank Nig Plc Vs Bilante Inv. Ltd (1997) 8 NWLR (pt.515) 37 at 76; Okobule Vs Oyagbola (1990) 4 NWLR (pt.147) 723.
Counsel said that Appellant had alleged that the Respondent offered to sell his said property by advertising same through an agent, but did not disclose the agent and did not call same as witness; that Appellant did not prove that there was offer to sell the property and so the Exhibit C (acceptance letter) was founded on nothing; same for the purported power of attorney, which was not signed or dated (Exhibit D); he said all that, and the cheque for N3, 000,000. 0, were all Appellant’s idea, prepared for the purpose of the Suit. He submitted that there was no contract, and relied on the case of UBN Ltd Vs Prof. Ozigi (1994) 3 NWLR (pt.333) 385, especially as Appellant had admitted that the Respondent didnot sign the Power of Attorney and did not collect the N3 Million cheque; and that the alleged sale agreement was not executed. He relied on the case of Kaydee Venturs Ltd Vs Minister FCT (2010) 41 (pt.2) NSQR 830; EGHREVBA Vs OSAGIE (2009) 33 (pt.2) NSCQR 970; Bilante International Ltd Vs NDIC (2011) 46 (pt.2) NSCQR 1002 at 1022.
He urged us to resolve the issues against Appellant and dismiss the appeal.
RESOLUTION OF ISSUES
I shall consider this appeal on the three (3) Issues donated by the Appellant, and shall take the 1st and the 3rd Issues, before taking the second issue.
Did the Appellant have locus standi to institute the action?
The trial Court had found out that:
“…apart from Exhibits A24 and D1, entered into between the defendant and Evangelist K.K. Degaya, representing K.L.M. Royal Ministry, no other document was tendered to show that the said K.L.M. Royal Ministry has metamorphosed to Rohi Empire Mission. The Defendant was therefore legally right when he told the Court… that he does not know the Claimant. Since there is no evidence showing the nexus between the Claimant on record and the said K.L.M. Royal Ministry, whom Evang. K.K. Degaya represented. Can it be said that the claimant can legally succeed in his claim against the defendant?…
The Court found out that the claimant on record has no locus to institute this action, because there is no nexus shown between the claimant and the Religious group Evang. Degaya represented in his tenancy agreement. The said Evang. Degaya who would have proved the nexus between the two, did not testify.” (See pages 201 and 206 of the Records).
I cannot fault that reasoning and conclusion by the learned trial Court, despite the fact that the Respondent had earlier issued statutory Notices of ejection on Appellant, (being the person claiming possession of the property at the time of issuing those processes), i.e. Exhibits 3, D and C; Applicant had a duty to establish its relationship with Exhibit A24 (or D1) , to qualify to invoke and appropriate the right/obligations contained in the tenancy agreement between the Respondent and Dr. K.K De-gaya, who represented K.L.M. Royal Ministry Destined for Greatness, in the tenancy agreement.
Appellant appeared to had assumed a lot; that, because it was, physically, in the property, that the Respondent should know, that it was the same unincorporated organization – L.K.M. Royal Ministry, which Dr. Degaya represented at the signing of Exhibit D1, that became the Appellant (Rohi Empire Mission). That was a wrong assumption, especially, as the said Dr. Degaya did not give evidence, to establish that vital link, between the two religious organizations.
Appellant had a duty to plead and lead evidence on the transmution or transition of the K.L.M. Royal Ministry Destined for Greatness to Rohi Empire Mission, or to provide credible link between it and the said Dr. Degaya, to qualify to appropriate the tenancy agreement in Exhibit D. As it were, Appellant was a total stranger to the tenancy contract, having not joined Evangelist Dr. K.K. Degaya as a party (one of the Plaintiffs), or called him to give evidence at the trial. It would not be out of place to see or think of Appellant as being let in by Dr. Degaya on the property.
In paragraph 4 to 6 of the Amended Statement of claim Appellant had pleaded, as follows:
(4) In January, 1998 the General Superintendent of the Plaintiff, Evangelist Dr. Kabiru De-gaya on behalf of and as representing the plaintiffs, then unincorporated, which also was known as K.L.M. Royal Ministry of Destined for Greatness, entered into a tenancy agreement with the Defendant in respect of the said premises at the rent of N2000.00 per month. The said Tenancy Agreement or copy thereof, dated the 3rd day of January, 1998 is hereby pleaded and shall be founded upon at the hearing of this Suit.
(5) After its incorporation, the Plaintiff wrote to the Defendant, through his Solicitors, then Emeka A. Obiehere & CO, Chigozirim Chambers of 17, Ajoku Street, Owerri, notifying him of the incorporation and the fact that the incorporated Plaintiff now fully becomes the tenant in the said tenancy Agreement. The said letter dated the 5th day of November, 2002 is hereby pleaded. The Defendant is hereby given notice to produce for tendering, the original copy of the said letter at the hearing.
(6) Since after the said letter, the defendant has dealt with the Plaintiff as his tenant in respect of the premises. The Plaintiff continued to pay the rents and the Defendant received the rent from it in respect of the premises. The Plaintiff shall rely on documents and receipts showing this fact at the trial.” (See pages 100 to 101 of the Records).
The Respondent had flatly, denied the above averments and in paragraphs 4 and 5 of the Statement of defence, averred:
(4) In further answer to paragraphs 2 and 4 of the Statement of claim the Defendant state that by the tenancy agreement, dated 03/1/98, between the Defendant and one Evangelist Dr. Kabiru De-gaya, the Defendant let the said property to Evangelist Dr. Kabiru De-gaya. The plaintiff is not a party to the said tenancy agreement. The said tenancy agreement is hereby pleaded…
(5) The Defendant denies paragraph 5 of the Statement of Claim and … state (sic) that the Defendant’s Solicitor never wrote a letter to the Plaintiff as alleged or at all. Defendant had no business with the Plaintiff. Rather the Defendant’s Solicitor wrote to Evangelist Degaya… Degaya as Defendant’s tenant is the one in possession of the said property and not the Plaintiff. (See pages 86 – 86 of the Records)
Whereas, Appellant had pleaded the alleged transformation of K.L.M. Royal Ministry… to Rohi Empire Mission, and that there was transmission of notice to that effect, by letter dated 5/11/2002 to the Respondent, the Statements on oath by the Appellant’s witnesses said nothing about that. See pages 108 to 118.
But under cross examination, the PW1 was asked whether the Appellant, as a new entity, entered into a fresh tenancy agreement with the Defendant, PW1 (Mrs.) Evangelist Blessing Chukwukadiba, said “No, rather the Plaintiff notified the Defendant of its new status.”
I think that would have been proper, if it was the organization, which Dr. Degaya represented in the agreement that was incorporated. Its status would have changed by the incorporation. Appellant was a completely new name and organization, though still led by Dr. Degaya.
In his evidence and cross examination, the Defendant (as DW1), consistently denied knowing the Appellant in respect of the tenancy agreement, and of being informed that Appellant was succeeding the religious body which Dr. Degaya represented in the agreement. He denied being served with any letter to that effect and the alleged letter of 5/11/2002, pleaded and relied upon by the Appellant, surprisingly, was not produced/tendered at the trial; and the fact that, the alleged letter was issued on 5/11/02, after the Respondent had started moves to eject the Appellant from the premises, is quite curious. Appellant, as shown on page 207 of the Records, was incorporated on 16/4/02. The non-production of the said letter, in my view, should be presumed against the Appellant, pursuant to Section 167 of the Evidence Act. Appellant had given notice to Respondent to produce the letter, which Appellant said was issued to Respondent’s former Counsel. If there was such a letter, Appellant would have produced a copy.
Thus, Respondent, having denied knowing the Appellant in relation to Exhibit A24/D1 (tenancy agreement), and having not been served with notice of transition of Dr. Degaya’s religious body in the Agreement, to the Appellant, to take the benefit of the tenancy agreement, and the said Dr. Degaya, having not been joined in the Suit, or called to give evidence to establish the missing link(s), Appellant cannot, in my opinion, invoke the rights inherent in the tenancy contract, being a stranger to the transaction, and so had no locus standi to institute the action, in its sole name (without joining the said Evangelist K.K. Degaya). See The Vessel Leona II v First Fuels Ltd (2002) LPELR – 1284 SC; LSDPC & Anor. Vs Nigerian Land & Sea Foods Ltd (1992) LPELR. SC. 98/89; Dumlop Preumatic Tyre Co. Ltd Vs Selfridges & Co. Ltd (1915) AC. 847; Rebold Industries Ltd Vs Magreola & Ors (2015) LPELR – 24612 SC.
I resolve the issue against the Appellant.
On the Issue 3, whether there was an enforceable contract between the parties, the reasoning which I expressed under the issue one above, would necessarily apply here, that Appellant being a stranger to the relationship between the parties in Exhibit A24/D1, Appellant cannot take benefit of the contract agreement to enforce anything. But in this appeal, the Issue three goes beyond enforcing the contract in Exhibit D1. Appellant had pleaded and led evidence on an alleged contract of sale of the property (under the tenancy agreement in Exhibit D1) to it, by the Respondent; Appellant said that the Respondent had advertised for the sale of the property and it (Appellant) accepted to buy it; that Exhibit D (draft Power of Attorney) was made to evident the sale/transaction, and the cheque for N3,000,000 (Exhibit E), was made by it for that purpose, to the Respondent, but that the Respondent refused to sign the document of sale/donation of the land, and would not collect the cheque.
Of course, that evidence appeared self-defeating, as it, clearly showed that there was no contract relationship between Appellant and the Respondent for the sale of the property. There was therefore, no basis for the claim for an order of specific performance. Appellant never produced the advert by the Respondent, for the sale of the property, nor any shred of the evidence of agreement by the parties for the sale/ purchase of the property, other than the draft power of attorney Exhibit D and the cheque, it wrote in the name of the Respondent (Exhibit E). Meanwhile, the Respondent has denied making any moves or showing any intention to sell his property.
It appears the Appellant indulged in self-delusion about the whole idea of the sale transaction. It is obvious, Appellant would like to acquire and own the property, but it cannot do so, against the wish/will of the owner. And, a Court order cannot be made, to force the Respondent to sell the property to Appellant to, or order specific performance of the wish of the Appellant. An Order of specific performance can only be made to enforce existing valid contract, where there is attempt to rescind or evade ones duty in the contract. See NCI Ltd Vs UACN Property Dev. Co. Plc (2016) LPELR – 41426 (CA); LSDPC Vs NL & SF Ltd (1992) LPELR – 1744 SC; Nwachukwu Vs Okaelu (2015) LPELR – 24276 (CA); Ohaeri Vs Yusuf & Ors (2009) LPELR – 2361 (SC).
A contract is a legally binding agreement between two or more persons, by which right are acquired by the party, in return for acts or forbearance, on the part of the other. It is a bilateral affairs, which requires consensus “ad idem” of the parties. See Odutola vs Papersack Nig Ltd (2006) 18 NWLR (pt 1012) 470; Orient Bank (Nig) Plc vs Bilante Int’l Ltd (1997) 8 NWLR (PT.515) 37; Ashaka vs Nwachukwu (2013) LPELR- 20272 (CA). See also
Alfa System Com. Ltd & Ors vs Keji Orisajimi & Ors (2016) LPELR – 40295 (CA), on the five essentials of a valid contract, namely, offer, acceptance, consideration, intention to create legal relationship and capacity to contract, and all the five ingredients must co-exist, before a valid contract can exist. Okubule vs Oyagbola (1990) 4 NWLR (pt.147) 723. Amana Suite and Hotel Ltd vs PDP (2007)6 NWLR (pt.1031) 453.
I agree with the trial Court, that there was no contract of sale of the property that can be enforced, by specific performance. The issue is resolved against Appellant.
The 2nd issue was, whether the trial Court was right to hold that Appellant failed to prove the allegation of unlawful destruction, or carting away the Appellant’s properties.
The trial Court had held that, because Appellant alleged malicious damage of the properties and carting away of same, that that raised criminal imputation, as malicious damage and carting away (stealing) are criminal offences, that the standard of proof of the allegation must be the standard of proof of a crime – which is beyond reasonable doubt; that Appellant failed to do so, particularly, as evidence of PW1 and PW2 conflicted, with regard to how same was reported to the police; that PW1 claimed the complaint was reported to State CID, while PW2 said, the report was made to the Commissioner of Police. The Court also held that none of the damaged properties was tendered and no picture, evidencing such destruction of the properties was tendered. Thus, the allegation was not proved, beyond reasonable doubt. The Counsel on both sides, however, agreed that the standard of proof was not beyond reasonable doubt, but on the balance of probabilities.
I agree with the trial Court that the allegation of malicious damage/destruction of the Appellant’s properties and/or carting away of the properties (meaning stealing) needed to be proved beyond reasonable doubt, being allegation of crimes in the a civil claim. See Section 135(1) (2) of the Evidence Act, 2011.
However, I think the trial Court was wrong to hold that the evidence by PW1 and PW2 contradicted each other, on how the report was made to the Police. Whether the report was made to the State CID, Owerri, or to the Commissioner of Police, Imo State, directly, should not, in my opinion, be an issue, because the report still goes to the Police in Imo State, and the Commissioner of Police is in charge of all the Police departments/units in the State. Such a discrepancy in evidence is not substantial contradiction to vitiate an evidence Fatoba Vs Ogundahunsi (2003) 11 WRN 56 at 74 – 82.
The fact that the police did not consider the complaint by Appellant worthy of investigation and/or prosecution, should also be instructive, as to the credibility of the same, especially, as the Respondent had denied any involvement in the alleged damages/destruction and/or carting away of the properties of the Appellant. It should also be observed that the Appellant was very meticulous in articulating the items, allegedly damaged/ destroyed or carted away, by pleading and producing/tendering their receipts (Exhibits F – O, P – Z and AA – A 23), for the purpose of claiming damages, but it failed to bring any credible evidence to prove or link the Respondent with the alleged damaged/destruction and carting away of the items, which Appellant also admitted, were purchased before the incorporation of Appellant, and bought in the names of various persons, other than the Appellant. See the findings of the trial Court on page 202 to 203 and 131 of the Records.
That too, again, raises the question of locus standi of the Appellant to claim for damages of the said properties, (even if they were damaged/destroyed and or carted away, as claimed). I had earlier held that Appellant, as decided by the trial Court, had no locus standi to bring the action. That reason is further enforced by the admission of Appellant, that the items it claimed damages for, were acquired before it (Appellant) came into existence, by being incorporated.
I resolve this issue too, against the Appellant, and hold that there is no merit in the appeal. It is accordingly dismissed, with cost assessed at Forty Thousand Naira (N40,000.00) only to Respondent.
I have the privilege of reading in draft the leading judgment prepared by my learned brother ITA G. MBABA, JCA. I am in complete agreement with the manner in which the issues considered in the appeal were resolved.
Accordingly, I too hold that the appeal lacks merit and hereby dismiss same. I also abide by the order in relation to costs as contained in the leading judgment.
I had the opportunity of reading before now the draft of the judgment just delivered by my learned brother ITA G. MBABA, JCA. I am in entire agreement with the reasoning and conclusion therein.
I have nothing more to add. I also dismiss the appeal and abide by the order as to cost in the leading judgment.