Total Nigeria Plc. V. Chief Elijah Omoniyi Ajayi (2003)
LawGlobal-Hub Lead Judgment Report
JA’AFARU MIKA’ILU, J.C.A.
This is an appeal against the judgment of Justice Modupe Fasunmi (Mrs), Judge of the High Court of Ijero-Ekiti State in suit No. HIJ/3/98, Chief Elijah Omoniyi Ajayi v. Total Nigeria, Plc, passed on 7th February, 2002.
Before the trial court, the appellant as defendant was sued by the respondent as plaintiff claiming, as per the writ of summons and particularly paragraph 19 of the statement of claim for the following:
“‘(a) a declaration that the termination of the Marketing Licence between plaintiffs and first defendant by first defendant’s letter reference number GSA/MOI/EXT3497 of 26th November, 1997 is unjustified, wrongful, unfair, unconscionable and mala fide, and an order setting aside the said letter of termination,
OR ALTERNATIVELY
two million Naira (N2,000,000.00 being special and general damages against the defendant, jointly and severally, for the unjustified, wrongful, unfair, unconscionable and mala fide termination of the said Marketing Licence contract between plaintiff and first defendant, out of which N860,500.00 is special damages,
(b) an order setting aside and nullifying the certificate of occupancy registered as Number 7 at page 7 in Volume 149 (certificates of occupancy) of the Lands Registry in the office and obtained wrongfully, illegally and unconstitutionally by first defendant in respect of plaintiff’s land at the Total Petrol Filling Station, Ifaki Ekiti.
The appellant denied the claim and, as per paragraph 31 of its amended statement of defence and counter-claim and made a counterclaim as follows:-
“(a) A declaration that the Marketing Licence Agreement dated 1995 between the plaintiff and 1st defendant has lawfully determined by reason of lawful non-renewal of the agreement.
(b) An order that the plaintiff be available for stock-taking and reconciliation and/or determination of the statement of account between the parties.
(c) An order for the plaintiff to hand over the station and all the equipment therein in good and serviceable condition to the 1st defendant.
(d) An order for the plaintiff to pay over to the 1st defendant any sums that may be due to the 1st defendant after stock-taking.
(e) N1,000.00 daily from 1/1/98 until the station is handed over to the defendant as provided for in the Dealership Agreement, under section 16 thereof.
(f) N1,000.00 for the unlawful use of the 1st defendant’s equipment in the station from 1/1/98 to the judgment and hand over”
Pleadings having been filed and exchanged the trial was conducted wherein the respondent/plaintiff testified and tendered some documents in evidence. On the other hand, the 2nd defendant testified and tendered some documents in evidence in defence.
The case started against the appellant and one Gbadebo E. Adegoke as the 1st and 2nd defendants respectively. At the end of the trial, the name of the 2nd defendant was struck-out.
At the end of the trial, the Judge having considered the entire evidence adduced at the trial as well as the submission of both counsel came up with a judgment by which both parties were aggrieved.
The appellant who was the 1st defendant filed its appeal containing 6 grounds of appeal. The respondent who was the plaintiff filed his cross-appeal with a ground of appeal.
The six grounds of appeal of the appellant are as follows:-
“(i) The learned trial Judge found rightly that Exh. ‘A’, the Marketing Licence Agreement per se is not illegal.
(ii) The learned trial Judge erred in law when he held that both plaintiff and the defendants were engaged in misrepresentation and were thus acting against public policy by showing that a dead man was in the contract.
(iii) The learned trial Judge erred in law when he held that since Exh. ‘C’ is also void because it is trying to terminate a void agreement.
(iv) The learned trial Judge erred in law when he set aside the certificate of occupancy procured by the 1st defendant/appellant and proceeded to hold that “the plaintiff has a better right to the land where the Station is built and that the 1st defendant is hereby allowed to remove its equipment installed at the total filling station, Ifaki-Ekiti and the remaining stools at the station.”
(v) The learned trial Judge erred in law when he held that in view of his analysis in respect of the plaintiff’s main case, prayers 31 a, b, c, d, e and f of the 1st defendant’s counter claim cannot be granted because they are based on an agreement which is void.
(vi) The judgment is against the weight of evidence. Further grounds of appeal shall be filed on receipt of the records of proceedings.”
The cross-appeal of the respondent/plaintiff contains one ground of appeal which reads:-
(i) The lower court erred in law in not awarding plaintiff N146,927 which belonged to the plaintiff and so admitted by defendant”.
When this matter came up for hearing on 5th day of November, 2003, the learned counsel for the appellant Mr. E.S. Osifo adopted the brief of argument of the appellant dated and filed on 18th February, 2003, and reply brief and cross-respondent brief dated and filed on 28th March, 2003. He drew the attention of this court to page 5 of the appellant’s brief of argument informing the court that five issues have been formulated therein for the determination of this court. He also cited additional authorities of:-
- Ude v. Nwara (1993) 2 NWLR (Pt.278) 638
- Bank of the North Ltd. v. Yau (2001) 10 NWLR (Pt.721) 408.
The learned counsel for the appellant urged this court to allow the appeal.
On the other hand, the learned counsel for the respondent, A.O. Akanle, SAN, appearing with Banjo Aiyenaki adopted the brief of the respondent filed 28th March, 2003. He maintained that the additional authorities referred to by the learned counsel for the appellant are irrelevant in … as they are on procedure which can be waived.
He urges this court to dismiss the appeal and allow the cross appeal.
The learned counsel for the appellant also urges the court to dismiss the cross-appeal.
In the appellant’s brief of argument the 1st and 2nd issues have been argued together, they read:-
“1. Whether, having regard to the pleadings and evidence adduced at the trial relating to the conduct of the parties in the operation and determination of the Marketing Licence Agreement, the learned trial Judge’s holding that both Exh. ‘A’ and ‘C’ are illegal and void can be justified?
- Whether, in view of the circumstances of this case, the parties’ mutual allusion to the plaintiff as Chief S. Ajayi (the name of his late father) was against public policy as to forestall a waiver of the plaintiff’s right to be strictly referred to and addressed only as Mr. E.O. Ajayi.”
The 1st issue is married to grounds 1 and 3 of the grounds of appeal while the 2nd issue is married to ground 2.
In his averment, the learned counsel for the appellant has argued that exhibit ‘A’ is the Marketing Licence Agreement between the appellant and the respondent exhibit ‘c’ is a letter dated 25th November, 1997 by which the appellant determined the said Marketing Licence Agreement. On pages 101-123 of the record of proceeding, the trial Judge held that both exhibits were illegal and void. In order to clarify the reasons applied by the trial court in coming to this decision, the learned counsel for the appellant has extensively quoted from the judgment of the trial court as shown from page 6 to page 8 of the appellant’s brief of argument.
With that, the learned counsel for the appellant has averred that even a cursory look at the judgment above vis-a-vis the issues presented to court below would reveal the practically unbridgeable gulf between the above pronouncements of the trial court and the case advanced by the parties. That there is no where in the pleadings of the parties it is alleged that exhibit ‘A’, the Marketing Licence Agreement was illegal or entered into by inducement occasioned by misrepresentation or impersonation. Also from the entire evidence of the plaintiff there was no indictment of misrepresentation, impersonation or illegality in relation to exhibit ‘A’. Likewise there is nothing in that regard from the pleadings and the evidence of the defendant.
The learned counsel for the appellant has reiterated that on the whole, ex-facie there was no illegality from the totality of the case presented by the parties. He has quoted Sodipo v. Lemminkainen OY (No.1) (1985) 2 NWLR (Pt.8) 547 where at page 558, Aniagolu, J.S.C. had this to say:-
“Running through all these cases is the one common feature that ex-facie or from the fact; adduced in evidence or from the surrounding circumstances, the illegality of the transaction has become apparent. In such a case, the trial Judge must act to enforce and protect the law of the land. But the illegality has to be apparent.
The Judge is not to embark on an inquisitorial investigation where nothing illegal is apparent. Hence, it was said in Diab NASR v. Berini Beirut-Riyad (Nig.) Bank Ltd. (1968) 1 All NLR 274 at 295 – per Coker”
” … But where illegality does not appear ex-facie the court is not entitled to speculate upon its incidence let alone expressly pronounce upon it unless it was made a part of the case of either side”
He has added the authority of George & Ors. v. Dominion Flour Mills Limited (1965) 1 All NLR 71 where it was held that where the contract is not ex facie illegal and the question of illegality depends on the circumstances as a general rule, the court will not entertain it unless it is raised by the pleadings. The learned counsel for appellant has drawn the attention of this court to page 114 line 28 of the record where the trial court held that ‘the Marketing Licence Agreement, per se, is not illegal’. He avers that the trial Judge later rendered this finding of no effect when he held that exhibit ‘A’, Marketing Licence is void by the way the parties have operated it. (page 116 line 27-29 of the record). He has however added that it was only learned counsel for the plaintiff in his submission at the lower court that raised the issue of letters being addressed to S. Ajayi or from S.
Ajayi who died in 1964. That exhibit ‘A’ is between Chief Elijah Omoniyi Ajayi and Total Nigeria Limited, but exhibit ‘C’ was written to S. Ajayi who is not the same person as Mr. E.O. Ajayi. That the learned counsel for the plaintiff stated that both the plaintiff and the defendant were engaged in misrepresentation and impersonation as well as acting against the public policy by showing that a dead man was in the contract.
The learned counsel for the appellant has opined that it was based upon this submission of the learned counsel for the plaintiff the trial Judge based his finding of voidness of exhibit’ A’. Here his submission is that the trial Judge’s finding must be based on the evidence adduced by the parties as guided by their pleadings relying upon Amadi v. State (1993) 8 NWLR (Pt.314) 644; 663 and Akinrinmade v. Lawal (1996) 2 NWLR (Pt.429) 218.
In respect of Exh. ‘C’ the averment of the learned counsel is that termination was in accordance with the terms of Exh. ‘A’ with proper notice given to the respondent on non renewal. One of the reasons relied upon by the trial Judge in avoiding it is that it emanated from void transaction, Exh. ‘A’. He has maintained that if the arguments on unjustifiability of nullifying Exh. ‘A’ are accepted, then, the nullification of Exh. ‘C’ on that ground must of necessity collapse.
The learned counsel for the appellant has added that another reason applied by the trial court in avoiding Exh. ‘C’ is that it was addressed to S. Ajayi (the deceased father of the plaintiff) as against the plaintiff Chief Elijah Omoniyi Ajayi who actually executed Ex. ‘A’. His averment here is that the trial Judge appeared to completely disregard the mutual evidence of both parties to the effect that somewhere in the course of operating exhibit ‘A’ and prior to its termination, the parties especially the respondent, whether inadvertently or by design, had begun to identify the respondent as S. Ajayi. He has drawn the attention of this court to Exh. ‘D’, a letter written by the appellant to the respondent on 25th January, 1984 by which it complained of the latter’s non-compliance with its policies, it was addressed to S. Ajayi although the respondent was the intended recipient and it was served on him. Also Exhs. ‘D1’ and ‘D2’ written on 6th December, 1995 and 31st January, 1997 respectively under similar circumstances. Also, the respondent in his evidence page 45 lines 108 – 109 of the record stated that Exh. ‘C’ was addressed to Mr. Ajayi and his father in the same vein under cross-examination page 58 lines 52-55 the respondent stated that:-
“total (the appellant) wrote a letter to me in 1997 as Chief S.A. Ajayi. The letter was in respect of my trading I account with them. Iwrote a reply back to Total Nig. Plc as Chief S.A. Ajayi”.
The learned counsel for the appellant has further drawn the attention of this court to para. 17 of the appellant’s/defendant’s amended statement of defence and counter-claim stating that there had been earlier correspondences between the appellant and the respondent in which respondent subscribed as S. Ajayi (his late father’s name). Also in evidence-in-chief the proof of that averment.
One of letters written and subscribed to by the respondent as S. Ajayi (the name of his father) was admitted in evidence as Exh. ‘F’. Here, the learned counsel for the appellant has submitted that in the face of mutually corroborative evidence of both parties as to the interchangeability of both names prior to the cause of action, the trial Judge totally misconceived the issue. That as the respondent had been writing and receiving letters from the appellant as S. Ajayi, then the respondent is estopped by law from denying the validity of the letter of termination, Exh. ‘c’ simply because it was addressed in the name of his late father. That the respondent could also be
deemed to have waived his right to be referred to or addressed strictly as and only as Chief E.O. Ajayi in relation to exh. ‘A’ by which name he executed the same. On issue of estoppel the learned counsel for the appellant has relied upon section 151 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990 which provides as follows:-
“When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed in any proceedings between himself and such person or such person’s representative in interest, to deny the truth of that thing.”
He added the case of Ondo State University v. Folayan (1994) 7 NWLR (Pt.354) 1; 25; where the Supreme Court evoked the above provision to rebut the argument of the appellant that the appointment of the respondent lapsed after the expiration of the three years probationary period under section 22(iv) of the University Regulations. The Supreme Court held that in allowing the respondent to remain in its employment after the expiration of the probationary period, the University is estopped from insisting that the appointment of the respondent became terminated after the probation period. The learned counsel for the appellant also relied on Joe Igah & Or. v. Amakiri & Ors. (1976) 11 SC 1; 12 where Obaseki, J.S.C. state as follows:-
… “If a man in express terms or by conduct makes a representation to another of the existence of a state of facts which he intends to be acted upon, in a certain way, in belief, in the existence of such a state of facts to the damage of him who so believed and act, the first is estopped from denying the existence of such a state of fact.”
With the above he has submitted that in the instant appeal, the principle of estoppel will operate to bar the respondent from denying the effectiveness of Exh. ‘c’ simply because it identified him as S. Ajayi (The name of his late father) as against his own name, Chief E.O. Ajayi.
On issue of waiver, the learned counsel for the appellant has averred that the respondent could be said to have waived his right to be addressed only and only as Chief Elijah Omoniyi Ajayi in view of his constitute act of writing letters especially Exh. ‘B’ as S. Ajayi in the course of inspection of Exh. ‘A’ relying on Barrett Bros (Taxi Limited) v. Davies (1966) 1 WLR 1334: 1339 where Lord Denning had this to say:-
“Secondly, the letter of June 23, 1964, was a waiver of condition. The principle of waiver is simply this:- If one party by his conduct leads another to believe that the strict rights arising under the contract will not be insisted upon, intending that the other should act on that belief and he does act on it, then the first party will not afterwards be allowed to insist on the strict rights when it would be inequitable for him so to do”.
Having added the case of Ogbonna v. A.-G., Imo State (1992) 1 NWLR (Pt.220) 647, the learned counsel for the appellant has also relied upon Noibi v. Fikolati (1987) 1 NWLR (Pt.52) 619.
In another angle, the learned counsel for the appellant has averred that trial Judge injudiciously tied the acts and conduct of the parties regarding the operation and termination of Exh. ‘A’ to public policy and thereby inevitably occasioning a miscarriage of justice. He relied upon Okonkwo v. Okagbue (1994) 9 NWLR (Pt.368) 301, and several other cases, concluding that for an act or transaction to be contrary to public policy the act or transaction must have a prominent and conspicuous element of injury to public interest. He avers that the Exh. ‘A’, the Petroleum Marketing Licence Agreement rather than constitute an object of public injury is an instrument of social advancement. That Exh. ‘C’ brought Exh. ‘A’ to an end and even though addressed to S. Ajayi the irregularity created no situation capable of endangering the public interest. More so, it created no problem of identity between the parties. The learned counsel for the appellant has drawn the attention of the court to the evidence-in-chief of the respondent where he stated “my letter of termination is not justified. I am not happy about the termination” page 45 (lines 19 – 21 of the record) and also under cross-examination where he stated “I am the only Mr Ajayi transacting business with Total Nigeria Plc. I came to court because of the letter of termination issued to me which is Exh. ‘C’.
The learned counsel for the appellant has concluded that the instruction from all the above is that the respondent knew that he and he alone was referred to as S. Ajayi submitting that the trial Judge’s nullification of Exh. ‘A’ and ‘C’ cannot be justified at all.
He urges the court to allow the appeal on these two issues.
On the other hand, the learned counsel for the respondent has adopted the five issues postulated by the appellant. On issues 1 and 2 in respect of the question of illegality and voidness of Exhs. ‘A’ and ‘C’ he has argued that both parties carried on business as if the same were between appellant and the respondent’s deceased father.
That the respondent was operating his account in the name of his late father to the knowledge of the appellant with its participation.
He has added that there were correspondences between both parties in the name of the deceased father instead of the respondent and that in 1997 letter determining agreement between the parties was directed to the deceased father of the respondent. He submits that assuming, but not conceding, that the said illegality and wrongfulness are not patent in the pleadings, they are in the evidence. He avers that by law whenever in the course of the hearing of any case a court comes across illegality, the court must not gloss over it but act on it and act decisively and refuse to sanction, refuse to uphold and refuse to enthrone the illegality. He relies upon Okoya v. Santilli (1994) 4 NWLR (Pt.338) 256, 290 where it was stated as follows:-
“where a court of law, in the course of trial of a matter finds an illegality punishable under the law, even if not triable in that Court but in another tribunal, without prejudice to its referring the matter to that tribunal, must take cognizance of the illegality. Once a transaction is illegal, it is void and all things emanating from that transaction is a nullity”.
In support of the above he has added the following authorities:
- Abcos Nigeria Limited v. Kango Woof Power Tools Limited (1987) 4 NWLR (Pt.67) 894, 907.
- C & C.B. Nigeria Ltd. v. Onwuchekwa (1998) 8 NWLR (Pt.562) 375; 395.
Reiterating that illegality will be dealt with whether it is raised in pleadings or given in evidence, he has drawn the attention of this court to the illegality of the certificate of occupancy obtained by the appellant to have been pleaded while the question of impersonation as regards respondent and his deceased father, S. Ajayi to have been given in evidence. He avers that the fact that respondent agreed to be called S. Ajayi who is dead, received letter in his name and replied in the name of dead S. Ajayi is no defence as there can be no waiver of illegality as found in Onamade v. A.C.B. Ltd. (1997) 1 NWLR (Pt.480) 123; 144 where it is stated as follows:
“Accordingly, by virtue of the said section 22(a) of the Land Use Act Exh. ‘C’ is unlawful and by virtue of section 26, it is null and void. In my view, the respondent cannot be estopped from refusing to be party to the contravention of the Act. Indeed, the issue is well settled that no estoppel will be allowed which precludes the party against whom it is sought from asserting and bringing to the notice of the court, the statutory illegality of such actions and instruments which are sought to be validated by acceptance of the estoppel pleaded.”
The learned counsel for the respondent has added that when both parties are in Pari Delicto, this can not be any defence to the illegality as decided in Eperokun v. University of Lagos (1986) 4 NWLR (Pt.34) 162; 203 where it was stated that “when the inequities are equal, no one needs complain, it is a trite and common place maxim that where parties are equal with wrong, the court will not give one legal redress against the other.” With this, he has concluded that since the entire transaction is based on a certificate of occupancy procured by fraud and both parties engaged in seeming impersonation, their transaction should be voided. That at least Exh. ‘C’ which was addressed to S. Ajayi already dead, could not and cannot determine Exh. ‘A’, an agreement made between appellant and respondent.
The learned counsel for the respondent prays that the issue be resolved in favour of the respondent.
In reply to the respondent’s brief, the learned counsel for the appellant has maintained that none of the cases cited by the learned counsel for the respondent meets the demands of this instant appeal.
That the hallmark of illegality is that some statutory provisions have been contravened with a resultant penal liability. He has concluded that it would be clear speculation to ascribe illegality to a transaction in the absence of any of the law being breached because the whole essence of illegality as a basis for avoiding any transaction is the protection of the law of the land. That no law has been breached by the parties to the instant case by making Exh. ‘A’. He urges the court to distinguish the authorities relied upon by the learned counsel for the respondent as they are not applicable to the circumstances of this case.
The above are arguments and counter-arguments of both the appellants’ counsel and the respondent counsel in respect of the 1st and 2nd issues for determination in this appeal. The questions raised in the two issues centre on the trial Judge’s holding that Marketing Licence Agreement, Exh. ‘A’ entered between the appellant and the respondent and the letter purporting to terminate the said agreement, Exh. ‘C’ are illegal and void. Having perused the judgment of the trial court carefully, I will summarize the reason applied by the trial court in coming to its conclusion in this regard as follows:
“(i) The 1st defendant in 1980 approached the plaintiff to obtain certificate of occupancy on the land leased to the 1st defendant where the Filling Station is. The plaintiff obtained the form, filled his own name on the form, and submitted to the 1st defendant to help him process the certificate of occupancy. When the certificate of occupancy was issued, it was issued in name of the 1st defendant, Total Nig., Plc, which is Exh. ‘B’ that by this act the 1st defendant committed illegality or was fraudulent by obtaining Exh. ‘B’ in its name.
(ii) Exh. ‘C’ was addressed to S. Ajayi whereas Exh. ‘A’ is agreement between Total Nig., Plc and Chief Elijah Omoniyi Ajayi.
(iii) And Exh. ‘D’ – ‘E’ are letters written to Chief S. Ajayi or from Chief S. Ajayi in the course of transaction”.
Though the trial court has earlier held that the Marketing Licence Agreement per se is not illegal, it later stated as follows:
“Since both the plaintiff and the defendant have engaged in misrepresentation and impersonation, I hold that they were acting against public policy by showing that a dead man was in the contract … This arrangement is illegal”.
The trial Judge then later opines that the court will not come to the assistance of any party who wishes to enforce a contract based on illegal transaction, indicating that this position of the law is founded upon public policy expressed in the legal maxim, “ex turpi cansa oritu action” (sic). Applying this principle the trial court held that once the parties have engaged in misrepresentation and impersonation, the whole transaction is a nullity, consequently holding that Exh. ‘A’, the Marketing Licence Agreement, is void by the way the parties have operated it. As for Exh. ‘C’ the trial Judge had opined that the termination is riddled with illegality because an agreement with a living person is being sought to be terminated through a letter written to a dead person. Then the trial Judge held as follows:-
“Since Exh. ‘A’ is void. Exh. ‘c’ is also void because it is trying to terminate a void agreement. The letter of termination was addressed to S. Ajayi as against Chief Elijah Omoniyi Ajayi. The termination goes to no effect because it is null and void.”
Even on the counter-claim of the appellant/defendant the trial Judge maintains that the Marketing Licence Agreement determined is void by reason of misrepresentation and impersonation between the plaintiff and the defendant and that the termination of the Marketing Licence between the plaintiff and the 1st defendant is null and void by reason of the misrepresentation between the parties.
In respect of this issue of Marketing Licence Agreement, Exh. ‘A’, the learned counsel for the appellant has posed two questions as follows:-
(1) Against his earlier finding that Exh. ‘A’ was not illegal per se, what was the source of the learned Judge’s later finding that Exh. ‘A’ is void in the light of the fact that the pleadings of the parties and their evidence in court transparently lacked same.
(2) How did the parties operate the Marketing Licence Agreement that infested it with voidness”.
In giving answer to the above questions, the learned counsel for the appellant has averred that the trial Judge had no solid ground to rest his finding of voidness of Exh. ‘A’ other than the respondent’s counsel’s submission. There is no simple clause of Exh. ‘A’ factually discovered, from the evaluation of the evidence adduced, to have been hoisted or shrouded on misrepresentation or impersonation from either party at the time of making Exh ‘A’. that both parties executed the agreement and operated it with full knowledge and in a cordial atmosphere before the event that precipitated this suit. He then submits that a trial Judge’s finding must be based on the evidence adduced by the parties as guided by their pleadings relying upon Amadi v. State (1993) 8 NWLR (Pt.314) 644; 663 and Akinrimade v. Lawal (1996) 2 NWLR (Pt.429) 218. He has added that the finding of the trial Judge is not based on any evidence. This averment of the learned counsel for the appellant, considering the circumstances of this case, is most compelling and acceptable to me that the blanket averment of the learned counsel for the respondent that assuming, but not conceding, that the said illegality and wrongfulness are not patent in the pleadings they are in evidence. In support of it, the learned counsel for the respondent has submitted that by law whenever in the course of hearing of a case a court comes across an illegality, the court must not gloss over it, but act decisively and refuse to sanction, refuse to uphold and refuse to enthrone the illegality, relying upon the following cases:
(1) Okoya v. Santilli (1994) 4 NWLR (Pt.338) 256; 290
(2) Abcos Nigeria Limited v. Kango Wolf Power Tools Limited (1987) 4 NWLR (Pt.67) 894; 907
(3) C. & C.B. Nigeria Ltd. v. Onwuchekwa (1998) 8 NWLR (Pt.562) 375; 395 and
The Supreme Court has made the law in this regard clear in Sodipo v. Leminkainen OY & Anor. (1986) 1 NWLR (Pt.15) 220 that where a contract is not ex-facie illegal and the question of illegality depends on the surrounding circumstances, then as a general rule the court will not entertain the question of its illegality unless it is raised in the pleadings and in such circumstances evidence adduced in support of the unpleaded illegality clearly goes to no issue. In our case, the trial Judge has disclosed gross ignorance as to how to identify the illegality or voidness of a contract by going into wild goose chase fishing out unpleaded issues of misrepresentation, impersonation and principle of public policy and ending up in declaring the contract between the parties in the case as illegal. An illegal contract may be said to be a contract which contravenes our statutory laws or which the contemplated action in it is contrary to statutory law or against the public policy. Thus, in considering illegality or voidness of a contract a court is bound to consider the contract itself and the contemplated action, which the parties have intend to be bound by it, and not acts or omissions of parties to the contract which do not arise from the terms of the contract.
In our case, the trial Judge had reasoned that though the contract was not per se illegal, but that the intervention of Exhs. ‘B’, ‘C’, ‘D’ – ‘D2, and ‘E’ rendered the whole transaction void. Exh. ‘B’ is the certificate of occupancy on the land leased to the 1st defendant where the filling station is and which has been issued in the evidence acted upon by the trial Judge.
The branch manager of the 1st defendant in 1980 approached the plaintiff/respondent and obtained the certificate to assist him acquire another certificate in his name instead of that the certificate was obtained in the name of 1st defendant (Total Nigeria Plc). The trial Judge held that by this act, 1st defendant has committed illegality or was fraudulent by obtaining Exh. ‘B’ in its name. This act in itself was never part of the Marketing Licence Agreement, Exh. ‘A’, between the respondent/plaintiff and the 1st defendant. It was an act outside the terms of the contract between the parties. Its being illegal or fraudulent would be far from turning Marketing Licence Agreement, Exh. ‘A’ void or illegal.
As for Exh. ‘C’, a letter of termination of Exh. ‘A’ it was addressed to S. Ajayi, the deceased, father of the respondent/plaintiff though written to the respondent/plaintiff while exhibit ‘A’ was agreement between Total Nigeria Plc and Chief Elijah Omoniyi Ajayi. Exhs. ‘D’-‘E’ are all letters written to Chief S. Ajayi or from Chief S. Ajayi in the course of the transaction. On this the trial Judge held as follows:-
“Since both plaintiff and the defendant have engaged in misrepresentation and impersonation, I hold that they were acting against public policy by showing that a dead man was in the contract. … This arrangement is illegal”.
The trial Judge has added that the consequences of illegality in relation to the parties in the contract is that the court will not come to the assistance of any party who wishes to enforce a contract based on illegal transaction. Applying the principle of public policy the trial Judge held that once the parties have engaged in misrepresentation and impersonation, the whole transaction is a nullity relying upon Okoya v. Santilli (1994) 4 NWLR (Pt.338) 256 and Onamade v. A.C.S. Ltd. (1997) 1 NWLR (Pt.480) 123. I find difficulty in agreeing with the learned trial Judge that this is proper application of the principle of public policy. In this regard, the learned counsel for the appellant has relied heavily on the case of Okonkwo v. Okagbue (1994) 9 NWLR (Pt.368) 301, where the apex court has dealt thoroughly with the definition of concept of public policy. In that case, the Supreme Court among others relied on the Australian case of Re Jacob Morris (deceased) 1943 N.S.W.S.R. 352; 355 where Jordam, .FJ. stated as follows:-
“The phrase ‘Public Policy’ appears to mean the ideas which for the time being prevail in any community as to the conditions necessary to ensure its welfare, so that anything is treated as against public policy if it is generally injurious to the public interest…public policy is not, however, fixed and stable. From generation to generation, ideas change as to what is a variable thing.
It must fluctuate with the circumstances of the time.”
Another case cited by the Supreme Court is that of Egerton v. Brownlow (Earl) (1853) 4 HL casl, 196 or 10 ER 359; 437 where Lored Tuno said:-
” … public policy, in relation to this question is that of the law which holds that no subject can lawfully do that which has a tendency to be injurious to the public, or against the public good, which may be termed, as it sometimes has been, the policy of the law, or policy in relation to the administration of the law.”
The Supreme Court in that case had this to say:-
” …It is not enough to contend that a transaction or custom is against public policy, one must go further to show in what respect the transaction or custom is against public policy”.
With the above, the learned counsel for the appellant has submitted that in all the above definitions of public policy though variegated in meaning and diverse in scope, there is a common denominator, which is that the act of transaction under consideration must have a prominent and conspicuous element of injury to public interest. That Exh. ‘A’ rather than constitute an object of public injury is an instrument of social advancement. That Exh. ‘C’ which brought Exh. ‘A’ to an end though addressed to S. Ajayi, the irregularity in nomenclature created no situation capable of endangering public interest. It created no problem of identity between the parties. With the latter, he has referred to the statement of the respondent in evidence in chief where he stated “my letter of termination is not justified. I am not happy with the termination” (page 45 lines 119-121 of the record) and his statement under cross examination that “I am the only Mr. Ajayi transacting business with Total Nigeria Plc. I came to court because of the letter of termination issued to me which is Exh. ‘C’. The learned counsel for the respondent has not said much on this.
Though the principle of public policy is said to be unruly horse since it has come to stay with us it ought to be tamed. As stated by Swinfen Eadu, J in Beard v. Hall (1908) 1 ch. 383, at Pp. 386-388
“you do not look for public policy, in the sense in which that expression is used in an Act of Parliament; we must have a judicial opinion on what public policy is. I must agree with the learned counsel for the appellant, having gone over the case of Okonkwo v. Okagbue (supra) that principle of public policy is to protect public interest by which the courts would not sanction what is injurious to public welfare or against the public good. The phrase public policy, therefore, means that policy of the law of not sanctioning an act which is against the public interest in the sense that it is injurious to public welfare or public good. But public policy, like chameleon, changes from time to time and from place to place. For a court to contend that an act or transaction is against public policy it must go further to show in what respect the act or transaction is against public policy.
In our case, the trial court has not shown how the acts of the parties have gone contrary to public policy. Misrepresentation as relied upon by the trial Judge is nowhere pleaded by the parties. None of the parties has been misled as to the party in the transaction or the terms of considerations in the contract.
The appellant knew that S. Ajayi, the father of the respondent was deceased and that was even shown to be why it contracted with the respondent under Exh. ‘A’ instead of his father. The respondent was never misled as to whom the appellant was dealing with from the entire pleadings and evidence adduced at the trial. He clearly knew that the letters sent to him, though addressed in the name of his father, were meant for him and he replied the letters. There is nothing in the entire transaction amounting to misrepresentation or impersonation. The mere fact that letters were written in the name of a dead man in the circumstances of this case does not amount to showing a dead man was in the transaction as both parties at the time knew the dead man was dead. The transaction was between the two parties and the clear agreement in exhibit ‘A’ was for the appellant to supply its fuel to the respondent who would sell the same and deposit the amount in its account and the appellant to pay the respondent the commission amount thereof. Nothing in the whole transaction could be said to be injurious to public welfare or public good. Therefore, I agree with the averment of the learned counsel for the appellant in this regard.
In addition to the above, the learned counsel for the appellant, in the appellant’s brief of argument, has queried as to whether the respondent was not estopped from denying the validity of the letter of termination simply because it was addressed to his late father.
He has relied upon section 151 of the Evidence Act, Cap. 112, Laws of the Federation, 1990 which provides:
“When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or such person’s representative in interest, to deny the truth of that thing”.
The learned counsel for the appellant has cited the cases of Ondo State University v. Folayan (1994) 7 NWLR (Pt.354) SC 1 and also the case of Joe Igah v. Amakiri & Ors. (1976) 11 SC 1 where the Supreme Court had this to say:-
… “If a man in express terms or by conduct makes a representation to another of the existence of a state of facts which he intends to be acted upon, in a certain way, in the belief, in the existence of such a state of facts to the damage of him who so believed and act, the first is estopped from denying the existence of such a state of fact”.
With the above, the learned counsel for the appellant has averred that the evidence adduced was that the appellant had prior to the cause of action written several letters to the respondent as S. Ajayi.
Not only was there no evidence of any iota of protestation on the part of the respondent, he himself also wrote several letters among which was Exh. ‘E’ which he signed as S. Ajayi. Therefore the above principle of estoppel will operate to bar him from denying the effectiveness of Exh ‘C’ simply because it identified him as S. Ajayi (the name of his late father) as against his own name Chief E.O. Ajayi. As I have indicated earlier the respondent when he received Exh. ‘C’ though addressed in the name of his father knew and accepted it as letter addressed to him. This is clear from the pleadings and evidence adduced. I accept the averment of the learned counsel for the appellant that by section 151 of the Evidence Act, the respondent is now estopped from denying the legality of Exh. ‘C’ just because it was addressed to his father. I will also have to agree with him on the waiver of the right of the respondent to be referred or addressed strictly and only as Chief E.O. Ajayi in relation to Exh. ‘A’, by which name he executed the same since he himself accepted and replied letter in the name of S. Ajayi.
I will have to mention that, the learned counsel for the respondent, on issue of illegality of Exh. ‘A’, has relied heavily on Okoya v. Santili (supra); Abeos Nig. Ltd. v. Kango Wolf Power Ltd. (supra); C. & C.B. (supra) and Eperokun v. University of Lagos (supra). All the said cases are distinguishable from our present case as each involves an act contravening statutory provisions which had resultant penal liability. In the case of Okoya v. Santilli (supra) it held that where a court of law in the course of trial in a matter finds illegality punishable under the law even if not triable by the court, it must take cognizance of the illegality.
In our case from the pleadings and the entire evidence, there is no act shown in respect of Exh. ‘A’ and Exh. ‘C’ contravening any provision of any law accompanied by any punishment. Each of the cases had been decided on the principle that it is the duty of the court when asked to give a judgment which is contrary to a statute to take the point, although the litigants may not have raised it. It is to be noted that in our case, the act of appellant of obtaining certificate of occupancy in respect of the land leased to it in its name was not part of the Marketing Licence Agreement, nor was the act of respondent operating his account in the name of his late father with
the knowledge of the appellant part of the agreement between the parties.
On the 1st issue, I hold that having regard to the pleadings and evidence adduced at the trial relating to the conduct of the parties in the operation and determination of the Marketing Licence Agreement the learned trial Judge’s holding that both Exhs. ‘A’ and ‘C’ are illegal and void cannot be justified. On issue No.2, I hold that in view of the circumstances of this case, the parties mutual allusion to the plaintiff as Chief S. Ajayi (the name of his late father) is not against public policy and instead amounts to waiver of the plaintiffs/respondent’s right to be strictly referred to and addressed only as Mr. E.O. Ajayi up to the time of serving him with Ex. ‘C’ the letter of termination of the agreement between them.
Issue 3 is, whether having regard to the evidence as to the subsistence of the lease between the parties the plaintiff/respondent and 1st defendant/appellant and in the absence of a relief for forfeiture of the same in the plaintiff/respondent’s claim, the procurement of a certificate of occupancy by the defendant/appellant in respect of the demised property was a vice or sufficient vice for which the lease could be forfeited. Here, it is the averment of the learned counsel for the appellant that since it is part of uncontradicted evidence that the land was leased to the appellant by the father of the respondent which lease has not expired and it will expire in the year 2010, and that the appellant developed the station, Exh. ‘B’, certificate of occupancy on the land acquired by the appellant would be to the extent of the lease. He has relied upon Registered Trustees of Apostolic Church v. Olowolemi (1990) 6 NWLR (Pt.158) 514, where the Supreme Court stated that a certificate of occupancy is only prima facie evidence of title or exclusive possession. He avers that Exh. ‘B’ is to the extent of the lease only evidential proof of appellant’s right to exclusive possession to the land and can thus not be indicative of a right of ownership in terms of title as to render it liable to nullification.
In the alternative, he avers, that if this court felt otherwise and then overrules the above submission, it was further submitted that the nullification of the certificate of occupancy would not affect the lease agreement between the appellant and the respondent, which will only expire in the year 2010. He has made it clear that the main grievance of the appellant is not the nullification of the certificate of occupancy but the forfeiture of the lease between the appellant and respondent’s late father, the devolution of which fell on the respondent on the demise of his father. He has added that it was not an issue submitted to the lower court for adjudication and none of the parties sought an end to the lease agreement between them. That the respondent only claimed for nullification of the certificate of occupancy. He has added that the trial court’s order in this regard came as an unsolicited charitable gift that surprised both parties to the suit. He relies upon Dabup v. Kolo (1993) 9 NWLR (Pt.317) 254; 284 where the Supreme Court stated the court cannot give parties before it what they did not ask for. He has also relied upon Union Bank (Nig.) Ltd. v. Adeuya (1993) 6 NWLR (Pt.299) 375; and other cases which are to the same effect. He urges the court to allow the appeal on this issue. The learned counsel for the respondent in the respondent’s brief of argument has counter-argued that under the law a tenant or lessee cannot obtain a certificate of occupancy as against the landlord or lessee relying upon Nyagba v. Mbahan (1996) 9 NWLR (Pt.471) 207 and several other cases. He has added that in law since the certificate of occupancy was fraudulently and dishonestly obtained it must be annulled and set aside. He is also of the view that while it is true that the respondent did not claim a forfeiture of the lease yet in view of the fraud and dishonesty perpetrated by appellant against respondent the lease is as good as determined if not in this, then in any case to be filed, thereafter, relying upon Guinness v. Udeani (2000) 14 NWLR (Pt.687) 367 and others. He prays that this issue be resolved in favour of the respondent. Here I totally disagree with the learned counsel for the appellant, that since in law a certificate of occupancy is prima facie evidence of title to land or exclusive possession then the certificate of occupancy in our case should be allowed to continue as evidence of exclusive possession till the lease expires. It is undoubtedly in law a prima facie evidence of title to land or exclusive possession because if it is challenged successfully it can be nullified. In our case, it is clearly shown to be wrongfully obtained. The trial court is therefore right in nullifying the said certificate of occupancy.
However, as for the lease it is not part of the pleadings of either party to this suit that the lease be determined. It is a relief granted by the trial court which has not been asked for by either of the parties to the suit.
It has been held in the case of Hon. Justice Ademola v. Sodipo (1992) 7 NWLR (Pt.253) 251, (1992) 7 SCNJ 417 that a court will not grant a relief not claimed by a plaintiff, it is only permitted to make an order though not asked for but which is ancillary or incidental to a relief proved and granted in order to make that relief effectual. In the case of Okoya v. Santilli (supra) it has been stated that, it is not the duty of a court to endeavour by examining the evidence to deduce what ought to be or might be the true nature of a claim by a party to a dispute and then proceed to make a declaration or finding which such party has not specifically sought for and may not in fact desire. It was added that it was not competent for a court suo motu to make or formulate a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties before it. I resolve this issue in favour of the appellant, for a court is not a Father Christmas who gives what is not asked, it gives what is asked and proved.
Issues 4 and 5 have been argued together by the learned counsel from the appellant. They are as follows:
Issue 4 “whether on account of the preponderance of evidence in support of the 1st defendant’s (now appellant) counter-claim, the learned trial Judge’s act in dismissing prayers 31, a, b, c, d, e and f of the said counter-claim was proper”.
Issue 5 “Whether the decision of the learned trial Judge can be supported in view of the totality of evidence adduced at the trial.”
It is the averments of the appellant that every relief sought in the counter-claim was contingent on relief 31(a) by which the appellant sought a declaration to validate the termination of the Marketing Licence Agreement. That the trial Judge found, albeit, wrongly the Exh. ‘A’. The Marketing Licence Agreement was illegal and void and that Exh. ‘C’, the letter of its termination was also void because it sought to terminate a void agreement. The appellant has added that in the appellant’s argument on issues 1 and 2 these findings have been denied. The appellant has maintained that Exh. ‘A’ is a valid Marketing Licence Agreement not tainted by any illegality, misrepresentation or impersonation that could have rendered it void.
That Exh. ‘C’, was duly and properly issued pursuant to clause 1:1 of Exh. ‘A’. It is the conclusion of the appellant that from all the documentary evidence the plaintiff’s case ought to fail in the lower court adding that also the marketing agreement would have been found to have come to end by lawful non-renewal and the appellants counter-claim ought to have been upheld by preponderance of evidence particularly as shown by Exhs. ‘A’ and ‘C’.
On the other hand, in respondent brief, it has been counter-argued that the facts of the case are clear, simple and straight forward and indeed both parties are argued in regards the whole facts. That the decision of the lower court is almost wholly on law. This court is urged to resolve both issues in favour of the respondent.
It is clear that the trial Judge under relief (a) held that the Marketing Licence Agreement determined is void by reasons of misrepresentation and impersonation between the plaintiff and the defendant. This has been earlier dealt with in this judgment.
However, it needs be added that by the terms of the agreement it could either be terminated by notice or by non-renewal. In this case, notice was issued in Exh. ‘C’ and there also by non-renewal. The reasons applied by the trial court have been earlier indicated to be untainable. It is part of the agreement between the parties under clause 16.3 that in the event of the Licencee failing to vacate the station upon termination of the licence for any reason, the licencee shall be liable to the company, the appellant, for the sum of N1,000.00 (one thousand Naira) per day by way of liquidated damages to be paid until possession of the station is given up to the company. This has been averred under para. 24 of the amended statement of defence and counter-claim of the appellant/defendant. It is also in the evidence of DW1. Even the respondent under cross-examination has admitted that it was part of agreement that his failure to surrender the station would render him to pay N1,000.00 per day. He himself has averred under para. 17 of his statement of claim as follows:-
“17. later on 1st January, 1998 defendants and their agents.
servants and privies came to the said station to take it over forcibly and forcefully harassing (sic),
embarrassing, assaulting, defaming and cursing plaintiff, but plaintiff resisted the move.
Earlier on under para. 16 of the statement of claim the plaintiff averred that on 26th November, 1997 defendants wrote to give him notice of the termination of the Marketing Licence Agreement. It is therefore bristle clear that by the pleadings and evidence adduced it was part of agreement that if the agreement was terminated, the respondent would be liable to pay the appellant the sum of N1,000.00 per day for failure to surrender the petrol station to the appellant. It is also undisputed that the agreement was terminated in 1997. The respondent in his statement of claim has admitted that the appellant on 1st January, 1998 attempted to take over the petrol station which he refused to surrender. Except for relief under para 31(f), of the amended statement of defence, I hold that it was wrong for the trial Judge to have dismissed the counter-claim of the appellant. Relief under 31(f) has not been supported by any evidence.
The sole issue raised in the cross-appeal of the respondent is as follows:-
“Whether or not respondent can claim the amount appellant admits respondent has with it?”.
Here the averment of the respondent is that he claims N860,000.00 special damages being money deposited with the appellant by the respondent as well as deduction appellant made from the rebate and retail margin due to the respondent. That the appellant has admitted being indebted to the respondent in the sum of N146,927.00. He urges this court to resolve this issue in favour of the respondent.
As far as the learned counsel for the appellant/cross respondent is concerned the issue for determination here is as follows:
“Whether from the available evidence on record regarding the accounts of the parties, it is reasonably possible to conclude that the cross-respondent admitted owing the cross-appellant the sum of N146,927 .00 as to enable this court give cross-respondent (sic) judgment for the same”.
He draws the attention of this court to paras. 11 and 12 of the statement of claim where it was averred that the plaintiff was to pay a security amount of N600,000 out of which he paid only N80,679.00 and the balance to be paid by monthly deduction from rebate and retail margin due to the plaintiff. That arising from the said deduction defendants owed the plaintiff from 1993 till date N178,637.00 which defendant has refused to pay up. He has also referred to para. 19 of the statement of claim where the cross appellant claimed N2,000,000.00 special damages out of which N869,500 was special damages. He has gone further to indicate that the cross-appellant in evidence stated he made a deposit of N80,000.00 but under cross-examination could not say how much was in his trading account. That it was the cross-respondent in its pleadings under para. 19 that indicated that by small deduction by the 1st defendant from the plaintiff commission on sales, the 1st defendant was able to help plaintiff build up his deposit to N 146,927.00. This is the gist of the argument of the cross-appellant.
He asked for N860,000 more than the amount admitted by the cross respondent and now he is asking for that amount admitted. The learned counsel for the appellant is just trying to confuse the issue by bringing the issue of N201,040 as amount which he alleged the cross-appellant had failed to account for. By pleadings the said amount was alleged to be for products supplied for which the appellant failed to account while the N146,927 was the security deposit totalling the amount deposited by the cross-appellant and the amount deducted from his commission. The said N201,040 has not being specifically claimed by the cross-respondent. Though it may come under relief 31(b) after stock-taking and reconciliation and/or determination of the statement of account between the parties. I therefore resolve this in favour of the cross-appellant.
In the final conclusion, the decision of the trial Judge in giving an order setting aside nullifying the certificate of occupancy registered as Number 7 at page 7 in Volume 149 (certificate of occupancy) of the Lands Registry in the Office at Akure obtained by appellant 1st defendant in respect of plaintiff’s land at the Total Petrol Station, Ifaki Ekiti is hereby affirmed. However, the order of the trial court on the forfeiture of the lease between the appellant and the respondent on the said landed property is hereby set aside as an order unsolicited for by any of the parties.
I hereby also set aside the order of the trial court declaring Marketing Licence Agreement Exh. ‘A’ and letter of its termination as illegal or void. Judgment is hereby entered in favour of the appellant in respect of its counter-claim with orders in following manner:-
“(a) A declaration that the Marketing Licence Agreement dated 1995 between the plaintiff and the 1st defendant has lawfully determined by reason of non-renewal of the agreement.
(b) An order that the plaintiff be available for stock-taking and reconciliation and/or determination of the statement of account between the parties .
(c) An order for the plaintiff to had over the station and all the equipments therein in good and serviceable condition to the 1st defendant.
(d) An order for the plaintiff to pay over to the 1st defendant any sums that may be due to the 1st defendant after stock-taking.
(e) An order for the plaintiff to pay N1,000 (one thousand Naira) daily from 1/1/98 until the station is handed over to the 1st defendant as provided for in the Dealership Agreement under section 16 thereof.’
Thus, the appeal of the appellant has substantially succeeded.
On the other hand, the respondent – cross – appellant has succeeded in his cross-appeal. Judgment in the sum of N 146,927.00 is hereby entered in favour of respondent-cross-appellant against the appellant-cross-respondent.
No order as to costs.
Other Citations: (2003)LCN/1511(CA)
