Chief Elijah Omoniyi Ajayi V. Total Nigeria Plc (2013)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, J.S.C.

The Appellant in this appeal was the Plaintiff at the trial High Court of Justice Ekiti State sitting at Ijero – Ekiti where he filed an action against the Respondent and one other person as Defendants and claimed a number of reliefs arising from the management and control of the Total filling Station at Ifaki-Ekiti in Ekiti State.

The circumstances that gave rise to the dispute between the parties originated from Dealership and Lease Agreements between the father of the Appellant, now deceased, and the Respondent Company. The relationship started in 1960 when the Appellant’s father Chief S. Ajayi leased a plot of land located at Ifaki Road junction, Ifaki – Ekiti to the Respondent for a term of 50 years subject to periodic revision which was to expire in the year 2010 subject to renewal. Pursuant to the relationship, the Respondent erected a Petrol Filling Station on the land and appointed the Appellant’s father a dealer at the Filling Station under a Marketing Licence Agreement separate and independent of the Lease Agreement. However, in 1964 the Appellant’s father Chief S. Ajayi died. Upon the death of the Appellant’s father the Respondent on its own invited the Appellant to take over the Dealership of the Station under the same agreement his father was operating with the Respondent. The business relationship between the parties continued until 1995 when the Respondent decided to enter into a fresh Dealership Agreement with the Appellant which Agreement was executed between the parties; However, by its letter dated 26th November, 1997, the Respondent decided to terminate the Dealership Agreement it had entered into with the Appellant because of apparent unsatisfactory performance. Meanwhile, in the course of business relationship with the Appellant since the death of his father in 1964, the Respondent undertook to obtain a Certificate of Occupancy in respect of the Filling Station it was occupying under the Lease Agreement due to expire in 2010, for the Appellant. Unfortunately, the Respondent obtained the Certificate of Occupancy in its own name. Thus, upon the discovery of the conduct of the Respondent and upon the receipt of the letter of termination of the Dealership Agreement, the Appellant refused to surrender the Filling Station and thereafter headed to the trial High Court of Justice of Ekiti State with an action claiming a number of reliefs against the Respondent as the Defendant in the action. The reliefs claimed by the Plaintiff/Appellant include a declaration that the termination of the Dealership Agreement was unlawful with damages in the alternative in addition to relief for the nullification of the Certificate of Occupancy issued to the Respondent on the leased property.

The Respondent/Defendant on its part counter-claiming against the Appellant asking for surrender of the Filling Station and payment of compensation. At the conclusion of the hearing of the case, the learned trial Judge dismissed both the Appellant’s claims and the Respondent’s counter-claim upon holding that the Dealership Agreement operated by the parties was illegal though in the same judgment the trial Court also set aside the Certificate of Occupancy obtained in the name of the Respondent for having been obtained unlawfully.

Aggrieved by the judgment of the trial Court both parties headed to the Court of Appeal, Ilorin Division where the Respondent filed its appeal while the present Appellant filed a cross-appeal against the same judgment. At the end of the hearing of the appeal and the cross-appeal, the Court of Appeal allowed the Respondent’s appeal in part while the Appellant’s cross-appeal was allowed in full. Although the Respondent whose appeal was allowed in part was satisfied with the judgment of the Court of Appeal delivered on 8th December, 2003, the Appellant whose cross-appeal was allowed in full was still not satisfied with part of the judgment of the Court of Appeal sustaining the termination of the Dealership Agreement between the parties earlier declared illegal by the trial Court, had decided to proceed on a further appeal to this Court in an attempt to restore the judgment of the trial Court on the validity or otherwise of the termination of the Dealership Agreement between the parties.

In the Appellant’s brief of argument the following 3 issues were distilled from the 4 grounds of appeal filed by the Appellant. These issues are –

“A. Whether it is right or wrong to use the name of a dead man in contracts and whether the fact that both sides to the contract (sic) indulge in the act is a waiver which gives them immunity from sanctions of law in the circumstances.

B. Whether or not a letter of contract written not to the party to the contract but to a dead person does legally determine the contract.

C. Whether or not the lower Court was right in granting the counter-claim of the Defendant/Respondent when the conduct of the said Defendant/Respondent is unconscionable and in (sic) when in addition it engages in misrepresentation.”

Although the learned counsel to the Respondent also agreed with 3 issues for the determination of the appeal arising from the 4 grounds of appeal filed by the Appellant, the 3 issues in the Respondent’s brief of argument were differently framed as follows:-

“1. Whether the Appellant who entered into a Marketing License Agreement (exhibit A) in his own name but later, in the course of his performance of the said Agreement, wrote and accepted correspondence (exhibits D, D1, D2 and E in his late father’s name, without protest will not be deemed to have waived his right regarding his own name under the agreement as to be stopped from denying the effectiveness of a subsequent letter in his father’s name (exhibit C) terminating the agreement.

2. Whether the Court of Appeal was not right in holding that the trial Court’s nullification of Exhibits A and C for alleged illegality, misrepresentation and impersonation cannot be justified having regard to the fact that the pleadings and evidence of both parties were absolutely bereft of same.
3. Whether the Court of Appeal was not right to have granted the Respondents counter-claim having regard to the overwhelming evidence in support of same.”

Looking at the Appellant’s issues A and B which are complaining on the use of a name of a dead person in a letter of termination of contract without specifically referring to the name of Chief S. A. Ajayi, the Appellants father in whose name the letter of termination of Marketing License Agreement executed between the parties was written, the issues in my view do not arise from the grounds of appeal particularly grounds 1 and 2 which were specifically directed against the Agreement Exhibit A and the letter of its termination Exhibit C. The law is trite that issues formulated for determination in an appeal must arise from the grounds of appeal. See Oduntan v. Gen. Oil Ltd. (1995) 4 N.W.L.R. (Pt.387) 1 at 16 and Sanusi v. Ayoola (1992) 9 N.W.L.R. (Pt.265) 275 at 291. Issues A and B in the Appellant’s brief of argument having been framed at large, cannot be used in the determination of this appeal.

However, since all the 3 issues formulated in the Respondents brief of argument clearly arose from the 4 grounds of appeal filed by the Appellant, the appeal is to be determined on those issues. In any case having regard to the evidence on record on the business relationship between the parties, which is largely documentary, to me, the main issue for determination in this appeal has been effectively captured in issue 1 in the Respondent’s brief of argument. In otherwords, once that issue as to whether the Marketing License Agreement between the parties Exhibit ‘A’ had been effectively terminated by the letter Exhibit C on taking into consideration the correspondence between the parties in Exhibits D, D1, D2 and E had been resolved, the remaining issues 2 and 3 based on the effect of the same documents, would have been also resolved.

The question in Respondent’s issue number one is whether the Appellant who entered into the Marketing License Agreement, Exhibit A, in his own name but later, in the course of his performance of the said agreement, wrote and accepted correspondence, Exhibits D, D1, D2 and E in his late father’s name, without protest, will now be deemed to have waived his right regarding his own name under the agreement as to be estopped from denying the effectiveness of the subsequent letter in his father name, Exhibit C terminating the agreement.