Attorney General of Lagos State V. Cattle Utilities and Services Limited (2002)

LawGlobal-Hub Lead Judgment Report

 M. CHUKWUMA-ENEH, J.C.A

-ENEH, J.C.A

M. CHUKWUMA-ENEH, J.C.A (Delivered the Leading Judgment):In this appeal from the decision of Manuwa J. of the Lagos High Court, Ikeja Division the plaintiff (Respondent) claimed in the trial Court as follows:

1. A declaration that the Lagos State Government of any of its officers, servants or agents whomsoever have not right or power to employ force, threat of force or self-help in ejecting the plaintiff from the Oko-Oba Abattoir and lairage or in retaking possession of any of the equipments leased to the plaintiff in connection therewith save pursuant to an order of a court of competent
2. An order of injunction restraining the Lagos State Government from using or employing force, threat of force or self help in ejecting the Plaintiff from the said Oko-Oba Abattoir and Lairage or in retaking possession of any of the equipments leased to the Plaintiff by the Lagos State Government in connection therewith save pursuant to an order of a court of competent jurisdiction.
3. A declaration that the termination by the Lagos State Government of the deed of lease agreement dated the 20th May, 1998 and made between the Plaintiff and the said Government is null and void and of no legal consequence.
4. A declaration that the Plaintiff has not committed any breach of any of the covenants contained in the said deed of lease.
5. An injunction restraining the Lagos State Government or any of its officers, servants or agents whomsoever from (a) terminating or purporting to terminate the said lease agreement for alleged breach of any of the covenants contained therein without first serving on the Plaintiff a notice specifying the particular breach contained of as required by law or (b) taking any steps whatsoever and howsoever pursuant to the purported termination of the lease as aforementioned.
6. An order directing an inquiry into the amount of damages payable by the Lagos State Government to the plaintiff for breach of covenants contained in the lease agreement dated 20/5/98.

Dated this 12th day of August, 1999.”

At the hearing the plaintiff called one witness and the defendant (appellant) called two witnesses. Both counsel then submitted written addresses. Excepting as to relief 6, judgment was entered against the defendant (appellant) as claimed by the plaintiff (respondent). The crux of the matter in the Court below and in this appeal still is the appellant’s contention that the respondent are not entitled to manage, control or operate the Oke-Oba Abattoir and Lairage leased to it (i.e. plaintiff/appellant). The plaintiff (appellant) has stoutly contested that it was not in breach of the agreement between them on the said subject matter.

Dissatisfied with the decision the defendant (appellant) appealed to this Court and had filed a total of ten grounds of appeal. In its brief of argument filed in compliance with the Rules it formulated eight issues for determination and they are as follows:

“1. Whether the learned trial Judge breached the fundamental right of the appellant to fair hearing when he refused to adjourn the matter to enable the appellant’s counsel receive the Respondent’s written address and reply to the new issues and point of law raised therein (Additional Ground 1)

2. Whether the learned trial Judge was right to have granted the plaintiff/respondent’s application to amend the statement of claim at the judgment stage without notice to the appellant (Additional ground 2).
3. Whether the transaction or agreement between the parties is a lease of the Oko-Oba Abattoir complex and its facilities or a management contract of the complex. (Additional ground 3).
4. Whether having regard to the provisions of the agreement, intention to terminate can only be given in the event of an undisputed breach of a clause in the agreement (Ground A in the Notice of Appeal).
5. Whether the learned trial Judge was right to have relied upon the meat hygiene regulations made pursuant to Section 8 of the Meat Inspection Law Cap. 129 Laws of Lagos State 1994 in his judgment to invalidate clause 8(II) of the agreement (Additional ground 4).
6. Whether clause 8(II) of the agreement is rendered invalid and/or unenforceable by the meat hygiene regulations Cap 129 of Lagos State 1994. (Ground C of the Notice of Appeal).
7. Whether having regard to the nature of the issues placed before him the learned trial Judge properly directed himself as to the burden of proof. (Ground B of the Notice of Appeal).
8. Whether the learned trial Judge properly evaluated the evidence before him and was right in entering judgment for the plaintiff and dismissing the defendant’s counter claim (Ground D and Additional Ground No.5).”

The plaintiff (respondent) also filed a brief of argument in accordance with the Rules of this Court and adopted the issues for determination raised by the appellant.

To further dilate upon the facts of this matter I have decided to set out those facts not in dispute as per the averments contained in paragraphs 1,2,3,4,5,6(1), 9 and 12 of the Statement of Claim admitted by paragraph 1 of the Statement of Defence and they read as follows:

“1. The Plaintiff is a limited liability company incorporated in Nigeria and having its registered office at No. 50, Burma Road, Apapa, Lagos.

2. The defendant is sued as the representative of the Government of the Lagos State of Nigeria.
3. By a deed of Lease Agreement dated the 20th May, 1998 and made between the Lagos State Government as Lessor and the plaintiff herein as Lessee, the Lagos State Government leased the Oko-Oba Abbatoir and Lairage together with the Equipments and Facilities attached thereto or connected therewith for a term of five years commencing from the date of execution of the aid Lease Agreement i.e. 20th May, 1998. The plaintiff will rely upon and hereby pleads the said deed of Agreement.
4. Among the promises made by the lessee under the terms of the said Lease Agreement which formed part of the consideration were the follows:-

(i) to repair, operate and manage the said Abattoir;

(ii) to invest the sum of 20,000,000 in the rehabilitation and repair of the said Abattoir;

AND

(iii) to pay rent in the amount and at the times stipulation in the said Lease Agreement.

5. Among the promises made by the Lessor under the terms of the said Lease Agreement and which forms part of the consideration flowing from the Lagos State Government were the following:-

(i) to deploy to the Abattoir sufficient number of veterinary inspectors for Ante and Post- Morterm Inspection of the animals and careasses;

(ii) To prohibit the slaughtering of animals in any other place within the entire Lagos State excluding Epe and Badagry;

(iii) to close down all present slaughter slabs operated by all Local Government Councils and any other slabs where animals are being slaughtered within the Lagos Metropolis;

(iv) to enforce all laws prohibiting the slaughtering of animals in any other slaughter slab (except the Oko-Oba Abattoir) in the entire Lagos State excluding Epe and Badagry.

AND

(v) to publicise by Radio, Television, Newspapers and other media, the prohibition of the slaughtering of animals in any slaughter slabs in Lagos State (excluding Epe and Badagry) other than the Oko-Oba Abattoir.

6(1) The Plaintiff was let into the possession of the aforementioned Oko-Oba Abattoir and Lairage and appurtenants thereto pursuant to the Lease Agreement dated 20/5/98 and has had the management and control thereof at all times material to this action.

9. By a deed of Lease Agreement dated the 3rd day of August, 1999, the Lagos State Government gave the Plaintiff a 30 day notice of termination of the Lease Agreement herein before pleaded “on the grounds of several breaches the terms of contract” –

namely that –

(1) The lessee has demonstrated gross negligence, lack of technical know-how and incompetence in violation of the “duties of the lessee” as spelt out in paragraph 8i-iv of the contract agreement.

(2) In particular, it is clear that the lessee is unable to keep the Abattoir in a condition sufficiently hygienic to guarantee the health of the people of Lagos State who are the consumers of meat coming from the Abattoir.

(3) The leassee has put up open public toilets and leased such to private operators at places designed as open’, spaces without reference to and approval from the lessor the Lagos State Government.

(4) The lessee has converted the Lairages and waiting stables to a market where all sorts of trade exist – tailors, radio repair, snooker parlour, film/video house etc. and residential subiolos contrary to the intention for which lairages are meant.

(5) The lessee has converted the Personnel Office, Medical Veterinary Clinic office – Block 1 and

Block II containing offices and toilet facilities for use by clients of the Abattoir and Lairage to Banking Walls and leased them out without reference to and approval from the Lessor.

12. By a further letter dated 10th August, 1999, the Lagos State Government, acting through one M.A. Ajisebutu, in his capacity as the representative of the Chairman of the Interim Management Committee informed the Plaintiff that in view of the notice of revocation mentioned in paragraph 9 of this Statement of Claim, the services of the Plaintiff’s staff at the Gate to the Abattoir will be replaced by Government employed staff.”

The appellant in putting its case had expatiated on fair hearing, an important question which had arisen from the trial Court’s refusal, firstly, to grant the appellant an adjournment to enable it see the Defendant’s reply brief which turned out actually to contain new or fresh points of law. And, secondly, that the trial court wrongly granted exparte an amendment of paragraph four of the Statement of Claim sought for via the said Defendant’s written reply brief without the trial Court first hearing the appellant on the matter of the amendment. The entire decision was therefore challenged as being in breach of its right of fair hearing as it was denied the opportunity to be heard on these questions before the trial Court reached its decision.

It then referred and relied on Section 294(1) of the 1999 Constitution to show that final addresses form an integral part of the case and that the refusal to hear Counsel’s address a denial of fair hearing would vitiate the trial. See Obodo v Olomu (1987) 6 SC 154 on (1987) 3 NWLR (Pt.59) 111.

Also Order 33 Rules 13, 17 and 18 of the High Court of Lagos State Civil Procedure Rules 1994 dealing with the order of addresses by Counsel and the right to general reply by the plaintiff inappropriate situations as here. The case of Telephone and Elect Co. v Republic of Nigeria (1969) 1 NMLR 44 was distinguished from this matter. And that the new or fresh points substantially formed the substratum of the trial Court’s decision was beyond contention, he submitted.

On amendment carried out exparte it was argued the trial Court breached the principle of audi alteram partem again amounting to denial of fair hearing. Based on Ajoke v Oba (1962) 1 ANLR 73 at 83; Nuhu v Kore (1997) 6 LR (Pt. 509) at 505 E-F; Enabiri Hire v Afamabo (1967) NMLR 253 at 254 it was submitted that the amendment was not by any formal application as prescribed by theRules and so the appellant Was not put on due notice and therefore it voided the amendment. See Okafor v Attorney General Anambra State (1991) 6 N LR (Pt. 200) 659. And that Loutfi v Czarnikow Ltd. (1952) AER 823 at 824 and Taiwo v Akinwunmi (1975) 4 SC 143 at 169-170 laid down the principles on amendment after close of cases of the parties.

On the interpretation of the agreement i.e. Exhibit “P1”, the appellant having adverted to the intention of the parties argued that the parties intended a management agreement as against a lease agreement and as borne out by the recital to the agreement to wit “to operate and manage the abattoir,” as well as the oral testimony of P 1. It is the appellant’s contention that clause 14 of Exhibit “P1” on termination of the agreement provided that the provisions of the said clause 14 could be resorted to in the event of any breach and that “undisputed breach” as a phrase was imported into the said clause by the trial Court. See Imah v Okogbe (1993) 9 NWLR (Pt.316) 159 at 166 Ratio 17. Such interpretation did no accord with the litarary meaning of the words used in the clause. See Oshin v Livestock Feeds (supra) at 170-171, Lake Chad Research v NDEFOI (1997) 3 NWLR (Pt.419) 72 at 80G – 81A. The appellant objected to considering of clause 8(11) of the agreement and the applicability of the provision of the Meat Hygiene Regulations against the appellant as they were not pleaded.

The point was made that parties are bound by their pleadings as expounded in I.R.P. Ltd. v Oviawe (1992) 5 NWLR (Pt.243) 572 Ratio 11; Shell BP v Abedi (1974) 1 ANLR (Pt.1) 16; Chugbo v Chugbo (1996) 5 N LR (Pt.447) 246 at 248 ratio 2; Pascutto v Adecentro (Nig.) Ltd. (1997) 11 NLR (Pt.529) 467 at 473 ratio 8. Latched on to this was the claim that the unenforceability and invalidity of clause 8(11) should not have been raised. See: Order 23 Rule 2 of the High Court of Lagos State Civil Procedure Rules 1994 and the Paul v George (1959) 4 FSC 198 and Barclays Bank D.C.O. v Hassan (1961) 1 NLR 865 at 866. The point was made that since the agreement was not ex facie illegal, the illegality must be pleaded. The appellant then decried the fact that it was not even given an opportunity of being heard and so wrong for the Court to raise such an issue suo motu. See Imah v Okugbe (1993) 9 NWLR (Pt.316) at 159. Metalinplex v A. G. Leventis (1976) 2 SC 891, Ogunlowo v Ogundare (1993) 7 NWLR (307) 610 at 624 and Afro Cont. Seaways Ltd. v Nig. Dred. Rd. & General Works (1977) 5 SC 235.

It was also argued that the appellants duties under regulation 55 had by regulation 26(1) become the responsibility of the Respondent by virtue of Exhibit “P1”.

It was also argued that the duties imposed by Regulations 26(1) and 55 became that of the Respondent as the Manager by the agreement specifically to repair, operate and manage Oko-Oba Abattoir. See also regulations 87(3) and 88.

On the burden of proof, the appellant referred to Kodilinye v Odu 2 WACA 336 at 337; Elias v Disu (1962) 1 ANLR 215 at 216; Amodu v Amode to submit that the Respondent as the plaintiff failed to discharge the burden of proof on it as the evidence adduced in breach of clause 8(11) by the plaintiff, showed that the Respondent was clearly in breach of the agreement.

Also see Egbunike v A.C.B. (1995) 2 N LR (Pt.375) 34 at 37 paragraph G. And again, that the evidence on both sides was not properly weighed on the imaginary scales, as otherwise the evidence in the appellant’s favour weighed heavier. See: Ezeoke v Nwagbo (1988) 1 NWLR (Pt.72) 616 at 619. Concluding it submitted that once the instant agreement was terminated it remained so not even if it was wrongfully done. See Oyedele v IFEUTHC (1990) 6 NWLR (Pt.1SS) 194 at 199 paragraph F. The appellant then urged that the appeal be allowed.

The Respondent gave a succinct response to the issues of fair hearing and amendment of the statement of claim. On the issue of fair hearing it referred to Order 33 Rule 11 to contend that as the appellant had no right to reply its rights of fair hearing were not breached. On the amendment it contended that as the amendment resulted in abandonment of a portion of claim 4 it could not be a matter of surprise to the appellant.

On whether the agreement was a “management agreement” it submitted that it was not borne out from examining the agreement and that the agreement clearly leased all the plant, machinery, equipment and other facilities connected with the Oko-Oba Abattoir and Lairage and granted the licence to enter, occupy and use the land and building to it (the Respondent).

On the issue of terminating the agreement, adverting to clause 14 of the agreement and the phrase “only if” used in it, the Respondent contended that the trial Court was right to have imported the words “undisputed breach” in construing the clause as the said clause would apply in circumstances where there was no controversy between the parties as to the breach. In other words, where there was in fact such a breach. And then and only then would the thirty days notice as prescribed by the clause given by a party effectively terminate the agreement. The Respondent on the pleadings had disputed any breach of the agreement. The Respondent further canvassed that as the Respondent had disputed committing any breach of the agreement and having commenced the instant action during the currency of the Notice to terminate the agreement that the said issue had fallen to be decided by the Court and therefore sub judice and that until the Court so pronounced upon it the appellant should not be seen to interfere with the Respondent’s rights over the subject matter. See Ojukwu v Government of Lagos State (1985) 2 NWLR 806. And even moreso that the Court would only intervene when its judicial powers were properly invoked.

On clause 8(11) of the agreement the Respondent submitted that the trial Court rightly adverted to the clause in its judgment even though it was not pleaded and rightly also declared it invalid and unenforceable by the Meat Hygiene Regulations Cap. 129 of the Laws of Lagos State 1994. It pointed out that by clause 14 of the agreement and by the use of the phrase “only if” that the parties could not have intended that the power to terminate the agreement should arise on any ground other than through a breach covered by the clauses of the agreement. Further, the Respondent argued that by considering the provision of clause 8(11) of the agreement against paragraph 12 of the Defence and also against the breaches as in the Notice served on the Respondent that the grounds specified in the defence could not sustain the termination of the agreement. On the invalidity and unenforcebility of clause 8 (11) the Respondent also maintained that on the authorities and regulation 55 of the Meat Hygiene Regulations, Cap.129 Laws of Lagos State the responsibility to maintain and ensure the hygiene of the Abattoir was squarely placed on the appellant who in law could not pass on that responsibility i.e. the statutory duties to the respondent by the said agreement. See: Birkdale District Electric Supply Co. Ltd. v Southport Corper (1926) AC 355 at 364 and William Cory and Son Ltd. v London Corporation (1951) 2 KB 476 at 484. To show that any submissions to the contrary would lead to absurd situation if the statutory duties were transferable by contracts as Exhibit Pi was also pointed out and that it is a criminal offence to default in maintaining the Abattoir under Regulation 56 of the Meat Hygiene Regulations.

For which the appellant as the owner could not answer that it had passed on the responsibility to the Respondent. It is even moreso in civil proceedings. The appellant could not welsh out of its statutory obligation by setting up such a defence in this matter. See Montefiore v Montefiore 1 Black W 265. And so the breach of Clause 8(11) had become a non issue, it submitted. On burden of proof, the Respondent submitted that as paragraphs 9 and 12 of the Statement of Claim were admitted the burden of proof of use of force or self help no longer was in contention. And that the burden of proof of the breach of the covenants of the agreement was on the appellant who alleged it. The Respondent argued that the submissions on the evaluation of evidence were misconceived. The Court was urged to dismiss the appeal.

In deliberating on the issues I shall be guided by the issues as formulated by the appellant.

The crux of issue one is whether the Respondent had the right to the last word in the circumstances of this matter.

And I dare say I agree with the appellant that it had and that the Court below acted in error to have gone on to pronounce on the fresh issues raised in the plaintiffs written address, having shut out the defendant’s right of reply. In so far as these issues did not arise from the pleadings the Court below had no business whatsoever to deal with them. Both parties having called witnesses before the Court below, the Respondent (plaintiff) rightly had the right to reply. See: Order 33 Rule 17 of the High Court of Lagos State Civil Procedure Rules 1994. This is so even though both parties filed written addresses.

However, in practice, a plaintiff in his closing speech ought to summarise his submissions and answer the opponents submissions as well. Where the plaintiff raises new or fresh issues of law in his address, the defendant may make a reply but only with regard to the new or fresh issues. I do not think, therefore, that the Court below was right to have more or less stampeded the appellant into adopting its written brief when it had requested for an adjournment to see the Respondent’s written brief. In the scenario that ensued, the Court below should have allowed the appellant an opportunity to meet the new points of law as the request was not unreasonable. As it turned out the Court below suo motu dealt with the issues in its judgment.

Further-more, it is not being contested that the Respondent’s written address contained new issues of law. My perusal of the records has confirmed them as relating to (1) bailment (2) the applicability of Sections 81, 290 and 293 of the Criminal Code as regards the redress for breach of contract (3) the validity and enforceability of Clause 8(11) of the agreement (i.e. Exhibit “P1”), against the Respondent, and (4) the applicability of Regulation 55 of the Meat Hygiene Regulations Cap.129 Laws of Lagos State.

This Court has repeatedly asserted that the procedure of fair hearing has to be strictly complied with to avoid occasioning a miscarriage of justice. The Supreme Court in Obodo v Olomu (1987) 8 NWLR (Pt.59) 111, observed in the same vein that, “Since the denial of the right to address has deprived the trial Judge the benefit of such address, it cannot be asserted with certainty that miscarriage of justice has not occasioned.”

That a miscarriage of justice was occasioned in this matter is beyond argument.For one the trial Court got involved in issues not pleaded.

This is so as there is no contention that the Court below suo motu raised and dealt with some of the said issues; that is to say when it pronounced on clause 8(11) of the agreement s invalid and unenforceble and the introduction of provisions of Regulation 55 of the Meat Hygiene Regulation Cap.129 Laws of Lagos State which issue did not emanate from the pleadings. The appellant was shut out.

The next matter is latched on to the foregoing. That is the issue of allowing the amendment of the Respondent’s claim 4 without the appellant having any say. In spite of the wide discretion of the Courts in this matter of amendment they have with regard to amendments generally notwithstanding the stage of the proceedings to see that granting them do not work injustice on a party. Amendments that aim at crystalising the matter in controversy between the parties are amenable to be granted.

The whole essence of our adjudicative system is to see that proceedings are conducted in a way that justice is not only done but is seen to be done. However, no matter the urgency of the amendment as objections to amendments are usually based on their timing and substance it is required that both parties are invited to address the Court on the same particularly whereas here the amendment was at the address stage. See Ajoke v Obi (supra). The appellant’s reaction to the amendment was shut out. The degree of constraint a Court should show where as in this case the amendment was sought after the parties had completed their cases is set out in Taiwo v Akinwunmi (supra).

Such amendments are contemplated: “… where the matter involved has been raised in the course of the trial and Counsel has addressed on it since it will be merely incorporating in the pleadings that which has emerged in the course of the case as an issue between the parties (and) … where the subject of the amendment has been referred to by Counsel in opening or evidence about it has been given so as to enable the Court arrive at a view… ” The implication of the foregoing is that it is not open to a Court to speculate as to whether the amendment sought is so minimal as to be taken for granted and as not to warrant the other party being put on notice with a view to amending his pleadings or recall witnesses if need be.

And thus deny the other party the opportunity to respond.

My reasoning above boils down to this; that the breach of the principle of fair hearing does not stop with asserting the rules of natural justice but that it encompasses acts and conduct of the case by the Court as in this matter capable of pre-empting the fairness of the trial. That the conduct of the instant case by the Court below occasioned a miscarriage of justice does not require that there should firstly be a finding to the effect that a different decision would have been reached in this proceeding. It suffices that the act is not in accordance with law. See State v Ajie (2000) 7 SC (Pt.1) 24. It cannot be disputed that the situation here allowed the plaintiff contrary to the Rules of Court to take the appellant by surprise and to deny it the opportunity of having a say on these issues. The situation therefore, cannot be said to be fair or just to the appellant. I uphold the appellant’s contention on issues one and two.

In view of the affinity of issues 5 and 6 with the foregoing issues, I have decided to break ranks and deal with them out of the normal order. The appellants main grouse in these issues is that the matters relating to clause 8(11) of the agreement and the applicability of the Meat Hygiene Regulations were not pleaded. It is settled that Courts must limit themselves only to issues pleaded as evidence taken on issues not pleaded go to no issue. See African Continental Seaway Ltd. v N.D.P.G. Ltd. (1977) 5 SC 235. Clause 8(11) of the agreement comes according to the record under the “Duties of the lessee” as per Exhibit “P1” and of the 4 clauses thereunder, clause 8(11) states as follows:

“The lessee shall promote the hygienic slaughtering of animals on the complex and maintain a good and healthy environment at all times.”

The relevance of Clause 8(11) of the agreement in the context of the aforesaid issue has to be related to the Notice to terminate the agreement and paragraph 12(g) of the Defence under which one of the breaches alleged committed by the Respondent was stated thus:

“… the slabs are not regularly washed and meat meant for human consumption are displayed on the ground.”

The Respondent’s answer for not pleading the invalidity of Clause 8(11) of the agreement was that the material facts on which the plea of invalidity rested were indisputable. I agree with the Respondent that the decisions in Re Vandervells Trust (1974) Ch.D.269, Chinwendu v Mbamali (1980) 12 SCC 127 and Peenok Investment Ltd. v Hotel Presidential (1982) 13 NSCC 477 leave no doubt that it is unnecessary to plead legal result or legal consequences of facts. The principle that has to govern the circumstances here are succinctly stated in Nasr v B. Beirut Riyad Nig. Bank Ltd. (1968) 2 NSCC Vol. 5219 to the effect that where illegality does not appear ex facie, as here, 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. In that case illegality had not been expressly pleaded and it concluded that in order to succeed on that ground the plaintiff ought to have pleaded and established the illegality on which he relied. Again, in Oline & Ors. v Obodo & Ors. (1958) NSCC (Vol.1) 60 at 62, the Supreme Court held that in circumstances as in this matter it was sufficient to say that the statute of frauds was not pleaded and that it was not available to the defendant. (See Emily Malomo & Ors. v E.J. Oluchola & Ors. 15 CA 12.)

Bringing the principles encompassed in the above cited cases to bear on the situation in this matter it is incontestible that the Court below acted in error to have held that Clause 8(11) of the agreement was invalid and unenforceable when it was not so pleaded and not one of the issues raised before the said Court for decision. It was one of fresh issues raised in the Respondent’s written address.

I now come specifically to the issue of Regulation 55 of the Meat Hygiene Regulations, Cap.129 Laws of Lagos State made pursuant to Section 8 of the Meat Inspection Law, Cap.129 Laws of Lagos State. Again, the reliance on that regulation was not in issue not having been pleaded and should not have been considered by the Court below. The appellant was not given the opportunity to address on it. I think the appellant’s objection is proper in that “a defendant who alleges that the plaintiff acted illegally in the sense that he had acted in contravention of a statute must plead what statute had been contravened and in what regard” per Ayoola in the unreported case No. SC. 98/2000: Alex O. Onwuchukwu v N.D.I.C. (Liquidator of C.C.B.) delivered on 22/2/2002. Relating the foregoing principle mutatis mutandis to the situation here the Court below had no basis to rely on Regulation 55 of the Meat Hygiene Regulation to invalidate clause 8(11) of the agreement. It was not pleaded – no issue was joined on it. It is clear from the principles enunciated above that the Court below clearly misconceived the true legal position with regard to Clause 8(11) vis-a-vis Regulation 55 of the Meat Hygiene Regulation on which it based its decision. Again, I agree with the appellant on issues five and six and therefore resolve them in its favour.

On issues 3 and 4 taken together the appellant raised the issue of interpretation of Exhibit “P1” – the agreement. Firstly, it argued that although the agreement Exhibit “P1” was captioned “lease agreement” that from the intention of the parties as gathered both from the documents itself and oral evidence at the trial that it was intended as a “management agreement.” The appellant’s argument in this regard belie the averments in paragraph one of its Defence which admitted that Exhibit “P1” was a lease agreement. I think having admitted, it is belated now to seek to resile from that position.

Next point to the above issue has to do with the termination of the agreement. The question to answer is whether it was wrong to import the word “undisputed” into the clause dealing with termination of the agreement. That is to say “undisputed breach”.

Clause 14 of the agreement stipulates as follows:

“Either party to the agreement may terminate same by giving thirty (30) days notice of its intention to terminate only if there is any breach of the clauses herein contained by either party to the 1eas e agreement. ”

The Respondent contended that there had to be a breach in fact and then the 30 days notice given to effectively terminate the contract. The appellant submitted that whether the breaches were disputed or not were immaterial to serving of notice to terminate. In my view the words of clause 14 are plain and unambiguous and therefore need no construction. Giving the words their literary meaning one is left with the impression that once there is a breach of a clause of the agreement the right to serve notice of termination accrues to the other party not in breach.

The notice served in this instance catalogued the breaches committed by the Respondent. Surely, if the parties had intended that both parties had to agree the breach that is as undisputed breach before Notice to terminate the agreement was served they would have clearly so stated, without any difficulty. The Court below was in error to have imported word not in the agreement that is “undisputed” breached into the agreement. A breach in the context has no basis to be so glossed.

The Respondent had raise the question of the said breach as being a matter of sub judice in the circumstances. My view is that the Respondent has not appealed against any aspect of the judgment nor has it applied to come by way of Respondent’s notice to vary or affirm the judgment on other grounds. And so, it cannot raise the proposition. In conclusion, therefore, the Court below with respect, incorrectly interpreted Clause 14 of the agreement.

An over view of my reasoning above has made it unnecessary to delve into the implications of the obligations which Regulation 55 of the Meat Hygiene Regulations, Cap.129 Laws of Lagos State imposed on an Owner (as the appellant) of Abattoir in Lagos State. Nor go into the matter of the capacity or otherwise of the Lagos State Government to contact out its obligations under the said Meat Hygiene Regulations, and specifically Regulation 56 of the Meat Hygiene Regulations vis-a-vis the provisions of criminal offences therein provided for failure to comply with the Hygiene and healthy conditions (i.e. under the said Meat Hygiene Regulations).

It would be stating the obvious that a written address cannot be a substitute for pleadings nor evidence. See Ekpenyong v Etim (1990) 3 NWLR (Pt. 140) 594 Akinbu v Race Auto Supply Co. (2000) 14 NWLR (Pt.686) 190 at 207. As the authorities stand today, these are matters the Respondent ought to have pleaded specifically and lead evidence upon. And if I may repeat, it is a well settled that parties are bound by their pleadings and that the Court is not allowed to formulate an entirely different case from the one presented by the parties and proceed to give judgment on it. That is the snag with the instant matter. And the Court below was in error for that. They were not issues joined on the pleadings. It follows that the contention that the Court below failed on the nature of the crucial issues before it to properly direct itself as to the burden of proof is well taken. And therefore the Court below had not properly evaluated the legal evidence placed

before it.

In conclusion, I find the Respondent’s case not proven and therefore not entitled as per its claim. This is so once the main props on which the Court below grounded its judgment gave way as shown from my reasoning above. That is to say, it is substantially on the backdrop of the invalidity and unenforceability of clause 8(11) of the agreement Exhibit “P1” and the incapacity of the Respondent to enter into contracts relating to its statutory duties under the Meat Hygiene Regulations (particularly Regulation 55) as the instant one Exhibit P1 that the Court below found paragraph 12(g) of the Defence and the notice to terminate the said agreement by the Defendant (Respondent) unsustainable and so held. I have expressed my views on the trial Court’s interpretation of clause 14 of the agreement. In the face of all these, the decision of the Court below, with respect cannot stand.

Now in considering the nature of the final orders to make in this matter I take the view that the Court below notwithstanding the breaches of the principles of natural justice as herein upheld, was competent to make the orders it made even though erroneously in point of law and as found herein, they are nonetheless within its jurisdiction. That is to grant declaratory reliefs (i.e. being discretionary reliefs) and injunctions. It is against this backdrop, that I should rather dismiss the plaintiff’s claim having found merit in the appeal than declare the proceeding void.

Accordingly, this appeal being meritorious is allowed and the judgment of the Court below is hereby set aside and the plaintiff’s claims dismissed with N5,000 costs to the appellant.

Other Citations: 2002)LCN/1173(CA)