Lagos State Development And Property Corporation & Anor. V. Nigerian Land And Sea Foods Ltd (1992)

LawGlobal-Hub Lead Judgment Report

OLATAWURA, J.S.C.

The action which has now culminated in this appeal was originally between the respondent as plaintiff and the 2nd appellant as defendant. It was on 3rd October 1980 that the 1st Appellant was joined as 2nd defendant. Before the joinder pleadings had been filed and exchanged. After the joinder the writ of summons and the pleadings were amended. The 1st defendant by its amended statement of defence of 6th April, 1981 set up a counter claim. The plaintiff filed an amended statement of claim dated 27th April, 1981 on 28th April, 1981. The 2nd defendant filed an amended statement of defence on 5th May, 1981.

The facts relied on by the parties are strictly in accordance with their respective pleadings. I will refer to some of the paragraphs of their respective pleadings later. It is not disputed that the 1st defendant took a lease of a parcel or portion of land from the 2nd defendant for a term of 90 years. This lease was admitted in evidence as Exhibit B. It was an industrial lease dated 19th March 1974 and registered as No.75 at page 75 in Volume 1448 of the Register of Deeds kept at Lagos State Land Registry. The plaintiff later approached the 1st defendant for a sub-lease. Arrangement was reached and there was a document prepared as a sublease for a term of 40 years but without the consent of the 2nd defendant.

It was this absence of consent that really led to the action filed by the plaintiff. The document between the plaintiff and the I5t defendant was admitted in evidence as Exhibit E. The plaintiff before the consent was sought had started building operations on the land granted it and which land forms part of Exhibit B. It came to light during the trial that though everything necessary to be done by the plaintiff was done, a director of the 1st defendant’s company wrote the 2nd defendant through Exhibit L dated 27th June 1980 that the consent being sought by 1st defendant was not in the best interest of the Board of the Company on the ground that the company itself would like further expansion of its workshop. The 2nd defendant relied on this Exhibit L and no consent was given. Consequently the plaintiff issued a writ of summons, the amended writ of summons is as follows:-

(i) a claim for an order of specific performance compelling the 1st defendant to complete the execution (including obtaining the necessary consent) of the Sublease or Agreement for a Sublease as drawn up between the plaintiff and the 1st defendant in January, 1979.

(ii) an order of specific performance compelling the 2nd defendant to give its consent as required under clause 2 (1) of the lease dated 19/3/94 between the lot and 2nd defendant to the sublease as or agreement for a Sublease between the 1st defendant and the plaintiff.

(iii) an order of perpetual injunction restraining the 1st and/or 2nd defendants by themselves their servants or agents or otherwise howsoever from further demolishing all or any of the building on the said land, or molesting, dispossessing or in any other manner howsoever interfering with the peaceful enjoyment and use of the said buildings of the said land by the plaintiffs or their servants or agents pending the final determination of this action.

(iv) N643,314.40 jointly and severally from the 1st and 2nd defendants being special and general damages for trespass and for the illegal and unlawful demolition on the 17th of December 1979 of the plaintiff’s buildings on the land covered by the above sublease or agreement for a Sublease and also, for conspiracy between the 1st and 2nd defendants to induce a breach of the plaintiff’s agreement with the 1st defendant. There was an amended statement of claim dated the 27th of April, 1981 on which the plaintiff sought to prove his case (sic).

I will at this stage refer to the counter-claim filed by the 1st Defendant. It is as follows:-

“COUNTER CLAIM

1. The 1st defendant repeats paragraphs 1-31 of its amended statement of defence.
2. The 1st defendant claims:-

(i) recovery of possession of the area of 871.942 square metres in its premises occupied by the plaintiff as trespasser at 29 Industrial Avenue, Ilupeju Lagos State.

(ii) Special and general damages for nuisance and loss of customers and income as a result of the plaintiff’s running a liquor bar, lodgings, brothel and iron bending factory from January 1979 to 31st March 1981.

(iii) Loss of income at the rate of N2,000.00 a month from the 1st of April 1981 until judgment is given.

(iv) The further sum of N2,500.00 a month until possession is given.

(v) An injunction restraining the plaintiff from further trespass on the 1st defendant’s and. premises at 29 Industrial Avenue Ilupeju Lagos State.”

Evidence was led by all the parties. After the addresses and submissions by the learned counsel, the learned trial Judge Ejiwunmi, J (as he then was) gave judgment in favour of the plaintiff on some parts of the plaintiff’s claim and gave possession of the land to the 1st Defendant. In view of the conclusion reached by the Court of Appeal, it is better to quote the Learned Judge’s conclusions verbatim et literatim:-

(1) The plaintiff’s claim for an Order of specific performance against the 1st defendant for reasons already given having failed is hereby dismissed. The plaintiff is however entitled to damages in view of my finding that the 1st defendant had breached his obligation with the plaintiff in respect of the agreement for the sublease.

(2) The plaintiff’s claim for an Order of Specific Performance for reasons already given having failed is hereby dismissed.

(3) The plaintiff succeeds against the 2nd defendant above under the claim for damages, the defendants jointly and severally for trespass and the illegal demolition of the plaintiff’s buildings on the 17th of December, 1979.

(4) The claim for conspiracy for inducing a breach of the plaintiff’s agreement with the 1st defendant however fails and it is hereby dismissed.

(5) The 1st defendant counterclaim succeeds in respect of the claim for possession and the plaintiff being a tenant in possession howbeit illegally shall pay rent for the occupation to the 1st defendant for as long as he is in possession thereof.

(6) The other claims set up by the 1st defendant in the counterclaim are all dismissed for reasons given in their entirety.

Finally the following shall be the orders of the Court.

(1) In respect of the claim in trespass, the 2nd defendant shall pay the plaintiff damages in the sum N10,000.00. No award is made in respect of any of the items in the claim for special damages for reasons already given.

(2) The 1st defendant shall pay to the plaintiff the sum of N3,025.68k being for the breach of the agreement for the sublease.

(3) The plaintiff shall pay the sum of N2,500 a month as rent to the 1st defendant for as long as he is in possession and this shall be the judgment of this Court.

The plaintiff appealed against the judgment to the Court of Appeal. On 8th December, 1986 the Court of Appeal in a unanimous decision allowed the appeal, set aside the judgment of the trial Court and awarded:-

(i) N99,279.00 as damages for rebuilding the buildings destroyed by the 2nd defendant.

(ii) N10,000.00 as damages for trespass committed by the 2nd defendant.

In addition the lower Court made the following orders:-

(1) Order of specific performance against 1st respondent to complete execution of the draft lease attached to the statement of claim as Exhibit A and for 2nd respondent to give its consent to the sublease;

(2) Injunction against both 1st and 2nd respondents, their servants and agents from interfering with appellant’s possession and enjoyment of the demised premises.

The present appellants before us were dissatisfied with the decision of the lower Court and have now appealed to this Court on a number of grounds. Briefs were filed by all the parties.

The first appellant in its brief raised the following issues:-

1. Were the alleged looting and destruction of the plaintiff/respondent’s property, repairs to his buildings, loss of income and of goodwill proved as its witness was not cross-examined on these issues and the witness no more than mentioned them and when in fact the Defendants denied the allegations in their pleadings and also gave evidence to controvert these allegations.
2. Would the conduct of the plaintiff/respondent and the terms of the Head lease between the defendant/despondent and the appellant and of the sub-lease between the plaintiff/respondent and the defendant/respondent and the development embarked upon by the defendant/respondent justify an order of specific performance compelling the defendant/respondent to complete execution of the Sub-lease Agreement as drawn up in January, 1979; and
3. Would this same conduct justify an order for the appellant to give its consent to the sub-lease between the defendant/respondent and the plaintiff/respondent.

The 2nd appellant raised these issues:-

i. Was the Court of Appeal right to have granted the claim for an order for specific performance when it found that the transaction between the plaintiff/respondent and the 1st defendant/appellant required the consent of the 2nd defendant/appellant.

ii. Was the Court of Appeal right to have ordered the 2nd defendant/appellant to give its consent to the transaction between the plaintiff/respondent and the 1st defendant/appellant when the Court of Appeal itself held that there was no privity of contract as between the plaintiff/respondent and the 2nd defendant/appellant; and after the time the 1st defendant/appellant had already indicated an intention to repudiate the agreement which is still subject to a consent.

iii. Was the Court of Appeal right to have granted the claims for special damages on the evidence which the Court of Appeal undisputably agreed were scanty, vague and not detailed.

iv. Whether the Court of Appeal was right to award the special damages of N99,279.18k and N20,000.00 without indicating whether the first appellant alone, or both defendants are jointly and severally liable when the Court of Appeal did not make any specific finding contrary to that of the trial Court that only the first appellant is responsible for trespass and illegal demolition of the respondent’s buildings.

v. Was the Court of Appeal right to have refused to order the recovery of the premises made in favour of the second Appellant by the Trial Court.

vi. Was the Court of Appeal right to have thrown the order of the trial Court for payment of N2,500.00 per month to the second appellant by the respondent for the use and occupation of the premises overboard.

These two sets of issues arose from the grounds of appeal. The respondent in its brief has raised two issues for determination, they are as follows:-

i. Whether having regard to evidence led at the trial, the Court of Appeal was right in ordering specific performance of the sublease Agreement between the respondent and the 2nd appellant and also the consent of 1st appellant to the transaction.

ii. Whether the learned Justices of the Court of Appeal were right in granting the respondent’s claim for special damages having regard to the evidence led in support of same.

The appeal first came before us on 2nd March 1992, the learned counsel for the 1st appellant was absent notwithstanding the fact that he was in Court on 9th September, 1991 when the appeal was given an accelerated hearing and fixed for 2nd March, 1992. We exercised our powers under Order 6 Rule 8(6) of Supreme Court Rules 1985 (as amended) and proceeded to hear oral submission made on behalf of the 2nd Appellant and the Respondent.

In his oral submissions Mr. Olowoyeye after adopting his brief referred to the judgment of the Court of Appeal where the Court held there was no privity of contract between the 1st appellant and the respondent. Learned counsel referred to the covenant in Exhibit B that there could be no assignment without the consent of the 1st appellant. Learned counsel referred to the Law of Real Property 5th Edition by Megarry and Wade pages 632-643: 741 and submitted that there was only a contract between the 2nd appellant and the respondent to grant a lease. Consequently, learned counsel submitted the lower Court was wrong to have granted specific performance against the 2nd appellant. Learned counsel agreed that the 2nd appellant induced the breach because of the competition in trade by Respondent. He finally urged that the appeal be allowed.

In his own reply Mr. Adeniji the learned counsel for the respondent after adopting his brief, referred to pages 339 and 341 of the record of appeal and agreed there is no privity of contract but privity of estate. He submitted there was a collusion between 1st and 2nd appellant for not granting the consent. He relied on Attorney-General (Federal) v. Sode (1990) 1 NWLR (Pt.128) 500 at 519. On the issue of damages learned counsel relied on paragraphs 8, 12and 14 of the Amended Statement of Claim and that on the evidence led there was no cross-examination. On the issue of special damages he relied on Kosile v. Folarin (1989) 3 NWLR (Pt.107) 1. He urged that the appeal be dismissed. In his own reply Mr. Olowoyeye pointed out that the 2nd appellant was found liable for breach of contract and cited African Petroleum Ltd. v. I.K. Owodunni (1991) 8 NWLR (Pt.210) 391.

After we had adjourned for judgment, counsel were recalled to address us on two issues:-

1. Whether general damages can be awarded in lieu of Specific Performance.
2. If yes, if the award by the trial Judge is sufficient.

When the Court re-assembled again, despite the fact that Hearing Notice was issued on Mr. Olufote for the-1st appellant, he was again not present.

In his submission Mr. Olowoyeye submitted that specific performance is an equitable remedy granted in circumstances where equity regards damages an inadequate compensation or where the circumstances justify the intervention of equity to compel a contracting party to act or perform according to the terms already agreed upon by them. Learned counsel referred to HANSON Law of Contract 26th Edition p.491 and Savage v. Uwechia (1972) 3 S.C. 213 (1972) 2 ECSLR (Pt.1) 252-257. McGregor on Damages 13th Edition p.709. Counsel pointed out that the arrears were paid by the respondent. He further submitted that it is not competent for a third party to seek to enforce the right between two parties except it is assigned. On damages learned counsel pointed out that since the plaintiff failed to tender the Valuation report in respect of the buildings, the Court should invoke section 148(d) of the Evidence Act.

Mr. Adeniji the learned counsel for respondent submitted that their right to complain was based on the fact that the 2nd appellant was transferring an interest it has for the period of the sub-leave and that by that act the respondent stepped into the shoes of the 2nd appellant. Learned counsel regarded that interest as a benefit that runs with the land and consequently there will be privity of estate between the 2nd appellant and the respondent.

On damages learned counsel conceded that the damages awarded by the lower Court were inadequate and that the respondent is entitled to consequential damages. It was his submission that the damages awarded by the trial Court were not in lieu of specific performance. He finally asked that the Court should give equitable relief against the appellant.

In his reply Mr. Olowoyeye maintained that there is no cross appeal against the finding of the Court of Appeal that there is neither privity of contract nor privity of estate. He referred to para. 709 of McGregor on Damages. On specific performance learned counsel repeated his earlier submission that there can be no specific performance against the 2nd appellant. He agreed that damages will be enough compensation and that the plaintiff is entitled to more than the amount awarded by the trial Court.

All the issues raised by the parties can be dealt with adequately under two relevant issues in view of the claim, the evidence and the findings of the trial Court and the lower Court. In my view they are:-

(1) Can specific performance be ordered against either party i.e. the appellants in this case

(2) What is the measure or amount of damages if any that can be awarded should the respondent fail on specific performance.

There is no doubt and it is agreed that the 1st appellant leased a parcel of land of which the land on which the buildings partly demolished forms a part, Exhibit B i.e. the lease of contract contains a relevant covenant which is basic to the success of the claim for specific performance. It is not also in dispute that the respondent was neither a party to Exhibit B nor a privy. The 2nd appellant purported to sublet part of the land to the respondent. The conditions under which the 1st appellant can do so are clearly stated in Exhibit B, to be:

“2. The lessee covenants with the lessor as follows:

(f) Not to sell, sublet, assign or part with the demised land without the previous written consent of the lessor which consent shall not be unreasonably withheld.”

In other words before any enforceable agreement between the lessee and a third party is reached as to subletting part of that demised premises, there must have been a previous consent of the lessor. If the lessor refuses, there will be a determination whether the refusal is unreasonably withheld. The 2nd appellant appreciated this issue of prior consent as basic to any sublease. This is shown clearly in the letter dated 18th June 1979 tendered and admitted as Exhibit D. addressed to the 1st appellant. It reads:-

“Dear Sir,APPLICATION TO SUBLET PORTION OF PLOT J, BLOCK ILUPEJU INDUSTRIAL SCHEME

In accordance with clause 2(1) of the Lease agreement dated 19th March, 1974 we wish to apply for your written consent as lessor to sublet a portion of the above plot measuring ONLY 871.942. sq. ‘metres to an indigenous company stated below.

Clause 2(f) reads as follows:

of the LESSEE “Not to sell. sublet. assign or part with the demised land without the previous written consent of the lessor which consent shall not be unreasonably withheld.”

The sub-lease agreement with the indigenous company (as sub-lessee) is attached hereto.

Accordingly, we shall appreciate your giving your written consent to enable us act as stated above.

Thanks in advance for your kind co-operation.

Yours faithfully.

for: Roadside Engineering and Foundary Limited.

Sgd. E.A. SOTEYE

DIRECTOR

cc: The Managing Director.

Nigerian Land and Sea Foods Co. Ltd.

42A Adekoya Square. Anthony Village.

P.M.B. 1156. Oshodi,

Lagos State.”

The sublease i.e. Exhibit E in respect of which consent was sought is dated 15th June 1979 and duly signed by the parties to Exhibit E i.e. the 2nd appellant and the respondent.

It will be appropriate to mention at this stage the 1st appellant though aware of the proposed lease did not at any time give its consent as a Director in 2nd appellant company one Mr. Animashaun wrote Exhibit L. objecting to the proposed consent. In paragraphs 4, 5, 6, 7, 8, 9, 10-13 of the amended statement of claim the plaintiff averred as follows:-

5. Clause 2(1)of the lease above recited provides that the 1st Defendant shall not sell, sublet, assign or part with demised land without the previous written consent of the Defendant which consent shall not be unreasonably withheld.
6. In January, 1979 the 1st Defendant agreed to sublet to the plaintiff a portion of the Land covered by the lease dated 19/3/74 which portion is clearly delineated in Plan No. NSS 47779L of 31/1/79 and attacked to the deed of sub-lease attached as Annexture A to this Statement of Claim.
7. A deed of sub-lease (Annexture A) was in January, 1979 duly prepared and executed between the Plaintiff and the 1st Defendant which instrument was forwarded to the 2nd Defendant by the 1st Defendant on 18/6/79 reference LS/DPC/2KJ/25/S. 117/RAA/DE for its written consent.
8. The Plaintiff having paid rent vide receipt No. 1069 was on 26/2/79 let into possession of the portion of plot J. Block I subject to it by the 1st Defendant whereupon the Plaintiff caused building plans of the proposed development of the said portion to be prepared which plans were forwarded to and received by the 2nd Defendant for its approval.
9. On 1/8/79, the Plaintiff was informed by the 1st Defendant that action on the application for consent referred to in paragraph 7 above was stayed by the 2nd Defendant for non-payment of ground rent by the 1st Defendant which rent was eventually settled on 5/10/79 from payments made to the 1st Defendant by the Plaintiff specifically for the purpose. The plaintiff will at the trial rely on letters exchanged between the 1st and 2nd Defendants dated 1/8/79, 25/8/79 and 5/10/79 together with receipt No.1180 of 3/9/79 issued to the Plaintiff by the 1st Defendant.
10. In breach of agreement reached with the 1st Defendant is deposed to in paragraphs 6-8 above, the Managing Director of the 1st Defendant together with some of their Directors acting in concert with officials of the 2nd Defendant prevented the processing and the issuance of letter of consent sent by the 2nd Defendant. The Plaintiff will at the trial rely on the letter written by one of the Directors of the 1st Defendant, A. Idris Animashaun, dated 27/6/80.
11. In pursuance of the conspiracy above referred to, 1st Defendant caused the 2nd Defendant to serve notice of illegal occupation (dated J6/11/79, 6/12/79) on the Plaintiff which notices the Plaintiff will contend are illegal null and void.
12. The 1st and 2nd Defendants acting in concert trespass on the Plaintiff’s property on the 17th of December, and demolished part of the plaintiff’s buildings and the workers looted the plaintiff’s belongings (including cash) in the demolished buildings. The 2nd Defendant threatened further demolition of the Plaintiff’s properties as per their letter of 18/8/80.
13. The 1st Defendant has refused to complete the execution of the lease and/or agreement referred to above while the 2nd defendant has unreasonably withheld its consent to the said lease and/or agreement.

The 1st Appellant (2nd defendant at the High Court) averred in paragraphs 4,5,6,7,8,9,10, 11, 12, 13 of the amended statement of Defence as fol1ows:-

4. The 2nd Defendant denies paragraphs 8, 10, 11, 12, 13, 14,and 15 of the Plaintiff’s Statement of Claim.
5. The 2nd Defendant in answer to paragraph 8 of the statement of claim avers that the Plaintiff is not known to the Corporation as regards Plot J, Block 1, Ilupeju Industrial Estate and could therefore have not in their possession an approved plan. The 2nd Defendant therefore puts the Plaintiff to the strictest proof thereof.
6. The 2nd Defendant also avers that the Plaintiff has constructed an Hotel on this premises contrary to the terms as regards user in the Lease Agreement between the Ist Defendant and the 2nd Defendant dated 19th March. 1974 and Registered as No.75, at page 75 in Volume 1448 ofthe Land Registry, Lagos. The 2nd Defendant will rely on this document at the trial of this action.
7. The 2nd Defendant avers that it was restrained from giving consent on the request of the 1st Defendant on the strength of a letter received from one of the Directors of the 151 Defendant informing the 2nd Defendant that the Board of the 1st Defendant had not resolved to sublet the premises to the Plaintiff. A letter dated 27th June. 1980 written to the 2nd defendant by A. Idris Animashaun will be relied on at the trial of this action.
8. That in the light of this letter, the 2nd Defendant replied the 1st Defendant Managing Director requesting for an extract from the resolution of the Board of Directors to support the application for consent. That this letter was dated 14th August, 1980 and will be relied upon at the trial of this action.
9. The 2nd Defendant further avers in answer to paragraph 9 of the Statement of Claim that the payment of ground rent referred to was made to the 2nd Defendant by the 1st Defendant undercover a letter dated 5th October, 1979 and signed by the Managing Director of the 1st Defendant. The 2nd Defendant will rely on this letter at the trial of this action.
10. The 2nd Defendant denies any conspiracy whatsoever with the 1st Defendant as alleged in paragraphs 10 and 11 of the Statement of Claim and puts the Plaintiff to the strict proof thereof.
11. The 2nd Defendant avers that notice of illegal occupation was served on the Plaintiff because they did not have an approved plan for the buildings erected on the site and the 2nd Defendant will contend at the trial of this action that the said buildings are illegal structures.
12. The 2nd Defendant in answer to paragraph 12 of the Statement of Claim denies the allegation that its workers looted the Plaintiff’s belongings including cash in their buildings and puts the Plaintiff to the strictest proof thereof.
13. The 2nd Defendant avers that it has not unreasonably withheld its consent to the purported sub lease to the Plaintiff for a term of 40 (FORTY) Years and says that in accordance with its averment in paragraph 7 above it had no choice but to stay action in the light of the information brought to its attention.

The 2nd Appellant (1st Defendant at the High Court) relies on the absence of consent and averred in paragraphs 6, 11, 13 as follows:-

6. With further reference to paragraph 5 of this Defence the 1st Defendant agreed to sublet a portion of its premises at 29, Industrial Avenue, Ilupeju to the Plaintiff, subject to consent of the Defendant’s Lessor, the Lagos State Development and Property Corporation (LSDPC). The Plaintiff was infonned of this condition but Mr. Umukoro who presented himself as the Plaintiff’s Managing Director insisted he could go ahead with his business in the premises pending the grant of the LSDPC’s consent which he said he would easily obtain as he knew the officials concerned and the staff that matters in the LSDPC.
7. The Defendant admits that it was in arrears of N1,525.68 rent to LSDPC and one of the conditions for giving consent to sublet or deal with the property was the payment of all outstanding arrears. The Plaintiff was so much in a hurry to obtain the LSDPC consent that it paid the said sumof N1,525.68 as alleged as its second year’s rent of N1,500.00 and N25.68 in addition to a clerk in the Office of the 1st Defendant and at a time when the Managing Director Chief E.A. Soteye was outside the Country in the United States.
8. With further reference to paragraph 12 of this defence the 1st Defendant’s application to the LSDPC for consent to sublet had not and has not yet been given before the Plaintiff proceeded to build the two houses which are permanent structures and, the Defendant later understood, without an approved plan.

In treating the issue of consent the learned trial Judge observed:

“It is therefore clear from this letter that the Plaintiff clearly without waiting for the 2nd defendant’s consent had planned to build permanent buildings on the site demised and had in fact built such structures as were given in evidence by the Plaintiff.”

The evidence led justified this observation. Is there any privity of contract between the 1st appellant and the respondent The answer is No. Privity of contract is a common law doctrine. Generally only parties to a contract can enforce the contract. This general principle is stated with great lucidity in Dunlop Pneumatic Tyre Co. Ltd. v. Self ridges & Co. Ltd. (1915) A.C. 847. The Supreme Court followed this principle in Ikpeazu v. African Continental Bank Limited (1965) NMLR 374 at 379 and stated thus:-

“What advantage, if any, can the Bank gain from the deed exhibit D Can the Bank sue on the guarantee Not being a party to it we are of the view that the Bank cannot acquire any rights under the deed. Generally a contract cannot be enforced by a person who is not a party, even if the contract is made for his benefit and purports to give the right to sue upon it. Tweedle v. Atkinson. This view was supported by the House of Lords in Dunlop Pneumatic Tyre Co. Ltd. Selfridge Co. Ltd.

The position is stronger with regard to contracts under seal; unless a person is named as a party to the need, he cannot maintain upon it. The only exemption to this relates to indentures made about land which was introduced by section 5 of the Real Property Act 1845 to enable a stranger to a deed to take advantage of a benefit to him in the deed.”

See also Negbenebor v. Negbenebor (1971-72) Vol. 7 N.S.C.C. 200-205. I, therefore agree with the Court of Appeal that there is no privity of contract and estate between 1st appellant and the respondent. In this appeal the contract to sublet was between the 2nd appellant and the respondent. The 1st appellant though had knowledge never gave its consent which is required under clause 2(f) of Exhibit B. It therefore follows that the order for specific performance of an agreement between the respondent and 2nd appellant cannot be made against the 1st appellant. There is that absence of mutuality which is a prerequisite condition in an action for specific performance, there must be a valid contract between the parties before an order for specific performance can be claimed. Specific performance is an equitable remedy based on the discretion of the Court, and it is generally ordered where “damages will be inadequate to meet the justice of the case”: Beswick v. Beswick (1968) A.C. 58-88. Mutuality must be available to either party at the time of the contract. I will not go into the exceptions to the doctrine of privity of contract as they do not exist in this case on appeal.

The learned trial Judge was right when he absolved the 2nd defendant from any claim for the failure of the 1st defendant and the plaintiff to maintain their contractual relationship.

It is now necessary to see whether from the evidence specific performance can be ordered against the 2nd appellant in favour of the respondent. The respondent was aware that before the 2nd appellant could assign or sublet it must obtain the consent of the 1st appellant. The two of them i.e. the 2nd appellant and respondent set in motion the process that would facilitate the consent, but it was aborted and consequently refused.

There is no doubt that the 2nd appellant was in breach of the agreement with the respondent and is therefore liable in damages. I will come to issue of damages later. If consent has been granted by the first appellant, then an action for specific performance can be decreed against the 2nd appellant, this is not the position. The respondent in its brief referred copiously to the principles which will guide the Court in granting or refusing this equitable remedy available to either party to a contract. It is not a principle doubted by this Court, but I cannot see how on the facts of the case before the trial Court, the lower Court could have granted the relief for specific performance. The observation of Ademola J.C.A. when the Learned Justice said:

“The Court had found as a fact that the 1st respondent did execute the lease for 40 years in favour of the appellant and he had been put into possession. It was also clear that the appellant had developed the property demised to it by building upon it. If even there was no consent to the lease made in favour of the Appellant by the 1st Respondent it does not follow that the 1st respondent, should have possession without an order for forfeiture in favour of the 2nd respondent for a breach of covenant between the 1st respondent and 2nd respondent.”

may be relevant to the issue of damages but it is no valid reason for setting aside the relief of specific performance refused by the trial Judge.

It would appear that the lower Court was carried away by the objection raised by Mr. Animashaun. This will in my view be a valid consideration if the 2nd appellant has, on its own taken an action against the 1st appellant on the ground of withholding consent which would have been unreasonable.

If the 2nd appellant failed to discharge his obligation to obtain consent from 1st appellant before subletting to respondent, an action for specific performance, as the subsisting agreement between the appellants has not been complied with, must fail: Coker v. Ajewole (1976) N.S.C.C. (Vol.10) p.429. In other words a party who wants the Court to order the specific performance of a contract must comply with its terms. No Court of law should give an order that will enable a party to a contract to breach the contract. On the whole the relief sought by the respondent on the issue of specific performance must fail.

I now come to the issue of damages. The learned trial Judge found that there was a breach of agreement between the 1st appellant and the respondent. I need to remind myself of one of the orders made by the trial Judge on 3rd October, 1989 to wit:-

“Plaintiff to repair their property”

(See page 89 line 33 of the record of appeal)

There was this evidence in chief by IP.W. Paul Edison Jakpor Umukoro.

“I have since rebuilt the buildings that were demolished by the 2nd defendant at a cost of N99,279.18 (Ninety Nine Thousand, Two Hundred and Seventy Nine Naira and Eighteen Kobo).”

He was not cross-examined on this piece of evidence. It-would appear that the learned trial Judge concentrated on an evaluation report not tendered and lost sight of the evidence on the buildings rebuilt by the respondent, hence the learned trial Judge refused that amount of N100,000.00 since no evaluation report was tendered, but he was wrong to say that:-

“He was however unable to produce this valuation report and no further evidence was called in support of this head of damage.”

(Italics mine)

I think the lower Court was right to have awarded the sum of N99,279.18. The lower Court said:

“At the trial the evidence of 2nd respondent or the 1st respondent did not dispute the re-building done by the appellant. No cross-examination of him took place nor was the figure given by him challenged in any way. There was no further obligation on him to prove further his assertion. I would therefore award the sum of N99,279 (sic) given in evidence.”

I agree. What is required is the probative value ascribed to the evidence of a witness. Once there is no contrary evidence or if the evidence is not challenged in cross-examination a Court can in fact act on it. See Obimiami Brick & Stone (Nig) Ltd. v. African Continental Bank Ltd. (1992) 3 NWLR (Pt.229) at 294.

The 2nd appellant in his brief had attacked the damages awarded and made it issue No 3 to its brief; learned counsel has referred, to a number of cases which deal strictly with special damages and the proof required. This approach obviously ignored the order made and which order I quoted above, I am in complete agreement with the lower Court on this award of N99,279.18. The appeal on the issue is dismissed. The order for N10,000.00 made by the trial Court against the 2nd defendant (i.e. the 1st appellant in this Court) and confirmed by the lower Court should stand. The 1st appellant was a trespasser as at the time of demolition of the building the respondent was in possession.

With regard to the counter claim i.e. for recovery of possession, this claim must succeed. The respondent can no longer be in possession since there has been no valid consent by the 1st appellant to the proposed sub-lease and more so when the order for specific performance has been refused.

In the final analysis these are the orders of this Court:

(i) The appeal against specific performance is allowed. The order for specific performance made by the lower Court is set aside.

(ii) There will be damages in favour of the respondent as follows:-

1) N99,279.18 being the value of the buildings damaged and rebuilt by respondent, this amount to be paid by the 2nd appellant.

(b) N10,000.00 damages for trespass committed by the 1st appellant.

(c) N20,000.00 against the 2nd appellant for breach of agreement between the respondent and the 2nd appellant.

(iii) The 2nd appellant is entitled to possession of the land and the respondent shall pay the sum of N1,500.00 per month until possession is delivered.

I now come to an issue of grave concern which is not an isolated matter in this Court and that is the conduct of Mr. E.O. Olufote, the learned counsel for the Lagos State Development and Property Corporation, the first appellant in this appeal. When this appeal came before this Court on 9th September, 1991, the Court granted an accelerated hearing and fixed it for 2nd March, 1992, Mr. Olufote was in Court on that day i.e. 9th September, 1991.

When the appeal came up for hearing on 2nd March, Mr. Olufote was not in Court and there was no explanation for his absence. We heard the appeal since a brief had been filed by him on behalf of the 1st appellant. We then adjourned for judgment which was then fixed for 29th May, 1992. Two issues later arose and we decided to recall counsel on all sides to address us further on 5th May 1992. He was duly notified. He again failed to appear, there was no explanation for his absence.

It appears that counsel now abuse the provision of Order 6 rule 8(6) which states:-

“When an appeal is called and no party or any legal practitioner appearing for him appears to present oral argument, but Briefs have been filed by all the parties concerned on the appeal, the appeal will be treated as having been argued and will be considered as such.”

{Italics mine}

The purpose of this rule is to avoid delay in the hearing of appeal as it may take a longer time to get another hearing date. Counsel must appreciate that it is in the interest of their Clients and the interest of justice for them to appear in Court to argue their appeals as the Court may wish to have some explanations about the submissions made and issues raised in their briefs. If the absence of counsel who had been duly notified of the date of judgment of Court is regarded as an act of disrespect to the Court (see Order 8 rule 14(2) of the Supreme Court Rules) then the absence of a counsel who was duly notified of a further address appears to me a calculated act of disrespect which borders on misconduct.

A counsel who is unable to attend the Court owes it a duty to arrange for another counsel to hold his brief. It is discourteous and impolite for a counsel to turn down the invitation of this Court to address it further on any issue. If counsel appreciates he is first and foremost an officer of the Court, his duty as an officer is to show utmost respect and not treat the process of Court with levity. Mr. Olufote should regard this observation about his conduct as a warning which must not be repeated.

The appeals, subject to the orders made above, are hereby partly allowed. Costs of N1,000.00 in favour of the respondent to be paid by the 2nd Appellant.

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SC.98/89