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.

The Appellant explained that after the death of his father who was the Respondent’s Lessor in its Total Filling Station at Ifaki-Ekiti in Ekiti State, he entered into a new Marketing License Agreement with the Respondent in 1995 in Exhibit A. However, the Appellant pointed out that the operation of that agreement between the parties continued in the name of his deceased father, Chief S. A. Ajayi in Exhibits D, D1, D2 and E. That the Respondent’s letter terminating the Marketing License Agreement was also addressed in the name of his deceased father Chief S. A. Ajayi instead of in his name Chief E. A. Ajayi. According to the Appellant this representation is wrong, dishonest and fraudulent but conceded that he did not plead fraud at the trial Court. All the same, the Appellant relied on a number of cases including Okoya v. Santilli (1994) 4 N.W.L.R. (pt.338) 526 at 290, Sodipo v. Lemminkainen Oy (No. 2) (1986) 1 N.W.L.R. (Pt.15) 220 at 232 and Abcos Nigeria Limited v. Kango Wolf Power Tools limited (1987) 4 N.W.L.R. (Pt. 57) 894 at 907, to argue that the operation of the agreement between the parties was illegal as found by the trial Court and that the illegality having been brought to the attention of the Court, the Court must take it into consideration not withstanding the absence of pleadings.

On the question of whether or not the Appellant should not have been regarded as having waived his right to have been dealt with in his own name in the operation of the agreement, the Appellant had argued that the fact that both parties in this appeal had joined in participating in the improper operation or misrepresentation in the names of the real parties in the agreement, cannot be a waiver of the effect of the wrongness or illegality. The cases of Onomade v. A.C.B. limited, (1997) 1 N.W.L.R. (Pt.480) 123 at 144, Eperokun v. University of Lagos (1986) 4 N.W.L.R. (pt. 34) 162 at 202 and Bendel State v. The Federation (1982) 3 N.C.L.R. 1 at 67, were relied upon by the Appellant who urged this Court to regard the wrongness perpetrated by both parties though not pleaded by the parties as enough to support the illegality in the transaction between the parties as found by the trial Court.

In his argument in support of this issue, learned Counsel to the Respondent pointed out that the Marketing License Agreement was signed by the Appellant in his own name, E. O. Ajayi which gave him the right under the law to be communicated in his own name under the agreement. However, learned counsel observed that in the course of the performance of his duties under the contract, the Appellant had received letters Exhibits D, D1 and D2 from the Respondent addressed as S. A. Ajayi, his late father’s name and in response the Appellant wrote Exhibit E in his said late father’s name to the Respondent. In terminating the agreement however, the Respondent addressed the letter of termination, Exhibit C to the Appellant as Chief S. Ajayi, the name of his late father. Learned Counsel to the Respondent therefore argued that the Appellant himself having admitted under cross-examination at page 58 lines 52 – 55 of the record of having been addressed as Chief S. Ajayi by the Respondent and he in turn responded in the same name of his late father Chief S. A. Ajayi, the Appellant can be deemed to have waived his right to be referred to or addressed strictly and only as Chief E. O. Ajayi in relation to the agreement Exhibit A which he executed in his own name. The cases relied upon by the Respondent in support of this argument on waiver include Ogbonna v. Attorney-General Imo State (1992) 1 N.W.L.R. (Pt.220) 697, Noibo v. Fikatoti & Anor. (1987) 3 W.L.R. (Pt. 52) 619, Eze v. Okechukwu (2002) 18 N.W.L.R. (Pt.799) 348 at 367 and Barrett Bros. (Taxix Ltd) v. Davies (1966) 1 W.L.R. 1334 at 1339. It was further submitted for the Respondent on the question of waiver that the Appellant is also estopped by virtue of Section 151 of the Evidence Act, CAP 112 Laws of the Federation of Nigeria 1990, from insisting on his right. The cases of Ondo State University v. Folayan (1994) 7 N.W.L.R. (Pt.354) 1 at 25 and Joe Igah & Ors. v. Amakiri & Ors. (1976) 11 S.C. 1 at 12, were cited in support of the argument on the application of estoppel by the learned Counsel who further relied on the oral evidence of the Appellant at pages 45 and 61 of the record confirming his identification in the letter Exhibit C, in urging this Court to resolve this issue in favour of the Respondent and dismiss this appeal.

In the resolution of this issue I have observed from the record that all the Appellant is aiming to achieve in this appeal is to actualize the decision of the trial Court in his favour as Plaintiff as contained in the judgment of that Court at page 123 of the record where the learned trial judge conclude thus:-

“From the analysis above in the claim of the plaintiff, I hold that the termination of the Marketing License Agreement between the plaintiff and the 1st Defendant is null and void by reason of the misrepresentation and impersonation between the parties.”

The law is indeed well settled as argued by the Appellant and duly supported by the cases of Okoya v. Santilli (supra) and Sodipo v. Lemminkainen Oy. (supra) cited and relied upon by him, that where a Court of law in the course of a matter finds in 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. In otherwords, the law is trite that once a transaction is illegal, it is void and all things emanating from that transaction is a nullity. What has to be determined in the present case is whether the transaction in the Marketing License Agreement entered into between the Appellant and the Respondent which the Appellant executed in his own name in 1995 in Exhibit A and which the Respondent decided to terminate in 1997 by its letter termination addressed to Mr. S. Ajayi in Exibit C, was illegal as claimed by the Appellant.

Let me emphasise here and now that the facts and circumstances surrounding the business transaction or relationship between the parties in this appeal are not at all in dispute. The Marketing License Agreement governing the running or operating, the Respondent’s Filling Station at Ifaki-Ekiti was originally between the Respondent and the Appellant’s father. On the death of the Appellant’s father in 1964, the Respondent allowed the Appellant to continue to operate the same Filling Station until 1995 when the Respondent executed a new Marketing License Agreement with the Appellant who executed the same in his own name. By a letter dated 26th November, 1997, the Respondent decided to terminate the Marketing License Agreement between the parties. That letter addressed to “Mr. S. Ajayi, Total Filling Station Ifaki,” was received by the Appellant and was in evidence as Exhibit C. I honestly cannot see anything illegal on the face of that letter Exhibit C giving the notice of the termination of the Marketing License Agreement between the parties in this appeal. In any case the Appellant in his own evidence under cross-examination at page 58 of the record said –

“Total wrote a letter to me as Chief S. A. Ajayi. The letter was in respect of my trading account with them. I wrote a reply back to Total Nig. Plc. as Chief S. Ajayi.”

The Appellant had also described the letter of termination of the Marketing License Agreement Exhibit C as his own in the following words at page 45 of the record thus:-

“My letter of termination is not justified. I am not happy about the termination.”

The fact that the letter of termination Exhibit C was directed at the Appellant and was meant to terminate the contractual relationship with the Respondent, was not at all ambiguous to the Appellant who admitted at page 61 of the record in the following words when he said –

“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 exhibit C.”

It is quite clear from the evidence on record that although the letter of termination of the agreement between the parties was addressed to Mr. S. Ajayi, even the Appellant himself had not stated in very clear language at the trial Court that his own identity as the other contracting party in the management of the business in the Total Filling Station at Ifaki-Ekiti, was in doubt. Where then I may ask, is the illegal transaction between the parties in Exhibit C The answer is definitely in the negative.

Furthermore, it is also quite clear from the record that Exhibit E is one of the letters written by the Appellant in the course of his contractual dealings with the Respondent which the Appellant signed as Chief S. Ajayi on 13th June, 1997 before the present cause of action that landed the parties in Court arose. There is therefore very clear evidence on record having regard to the letters exchanged between the parties particularly Exhibits D, D1, D2 and E that Chief S. Ajayi and Mr. E. O. Ajayi were used interchangeably by the parties to refer to the Appellant, Mr. E. O. Ajayi. In otherwords, as far as the Marketing License Agreement Exhibit A and the Respondent’s letter of Notice terminating the agreement Exhibit C are concerned, Chief S. Ajayi and Mr. E. O. Ajayi are one and the same person engaged in the management of the affairs of the Total Filling Station at Ifaki-Ekiti which was the subject of dispute between the parties in this appeal.

On the question of the alleged illegality of the contractural relationship between the parties, the law is well settled that a contract is said to be illegal if the consideration or the promise involves the doing of something illegal or contrary to public policy or if the intention of the parties in making the contract is illegal or contrary to public policy. In otherwords, an illegal contract is void and cannot be the foundation of any legal right and also all transactions emanating from it are void. See Sodipo v. Lemminkainen Oy (No.1)(1985) 2 NWLR (Pt.8) 547 and Alao v. A.C.B. Ltd (1998) 3 NWLR (Pt.543) 339 at 346. In the present case however, there, is no single attribute of any illegality in the contractual relationship between the parties leading to the termination of the same by the Respondent. In this respect the Court below was on very strong grounds in setting aside the judgment of the trial Court declaring the contract between the parties in Exhibit A void and in allowing the appeal of the Respondent by granting it relief in affirming the termination of the contract between the parties as contained in the letter of termination of the same in Exhibit C.

In any case the Appellant having received letters Exhibits D, D1 and D2 from the Respondent in the name of his late father S. A. Ajayi without any protest and in response having written the letter Exhibit E to the Respondent and signed the letter in the name of his later father S. A. Ajayi, I agree with the Court below that the Appellant was deemed to have waived his right to insist on being addressed strictly as E. O. Ajayi. See Ogbonna v. Attorney General Imo State (1992) 1 N.W.L.R. (pt.220) 647 at 691. In the same vein, by his conduct in stepping into the shoes of his father by addressing himself in the name of his late father, the Appellant is estopped by virtue of Section 151 of the Evidence Act CAP 112 Laws of Federation 1990, applicable at the time of the transaction between the parties, from insisting that the letter of termination of the agreement between the parties Exhibit C was not in his own name. See Joe Igah & Ors. v. Amakiri & Ors. (1976) 11 S.C. 1 at 12. For the foregoing reasons this first issue is resolved against the Appellant.

The 2nd issue is 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. Learned Counsel to the Appellant pointed out that since the Agreement between the parties Exhibit A was executed between the Appellant and the Respondent, the revocation letter Exhibit C made in the name of the deceased father of the Appellant cannot have the effect of terminating the agreement between the parties having regard to section 132 of the Evidence Act by which no oral or external evidence can be allowed to interpret the contents of a regard to Section written document. The cases of Alli v. Ikusebiala (1985) 1 N.W.L.R. (Pt.4) 630 at 640 and Olanlege v. Afro Continental (Nig.) Ltd. (1990) 7 N.W.L.R. (pt. 458) 29 at 40 were relied upon to say that the name of S. A. Ajayi on the termination letter Exhibit C cannot be explained to refer to the E. O. Ajayi the actual party to the agreement thereby making Exhibit C illegal and therefore incapable of terminating the Agreement in Exhibit A.

In response to the arguments of the Appellant on the 2nd issue, the learned Counsel to the Respondent traced the background of the decision of the trial Court which declared the Agreement between the parties exhibit A and the letter of termination of that agreement Exhibit C as illegal, null and void because the parties had engaged in misrepresentation and impersonation in acting against public policy by showing a dead person was engaged in contract. Learned Counsel pointed out that the findings of the trial Court imputing illegality, misrepresentation and impersonation to the Agreement between the parties have been found to be baseless by the Court below as the parties did not make their cases on pleadings and evidence touching on any illegality, misrepresentation or impersonation. Learned Counsel again found reliance on the cases of Sodipo v. Lemminkainen Oy (No.1) (supra) and George & Ors. v. Dominion Flour Mills Ltd. (1963) All N.L.R. 71 to say that the Court below was right in setting aside the decision of the trial Court because there was no element of illegality, misrepresentation or impersonation in the contractual relationship between the parties.

It is significant to note on this issue that this entire argument of the learned Counsel to the Appellant in support of this issue is predicated on the claim of Counsel that the Respondent’s letter of notice terminating the Marketing License Agreement between the Appellant and the Respondent Exhibit A, was illegal as it was not issued in the name of the Appellant. It is not in dispute that the issue of this illegality, misrepresentation and impersonation was neither raised by parties on pleadings let alone in evidence at the trial Court. The issue was only raised in the final address of the Appellant’s Counsel at the trial Court which elevated the address of Counsel to the status of evidence and relied on it to give judgment for the Plaintiff now Appellant.

The law is well settled that findings of the trial Court must be based on evidence supported by pleadings of the parties. Any piece of evidence not supported by pleadings must be discountenanced and completely disregarded for having become a non-issue in the case. See Total Nigeria Ltd. v. Nwako (1978) 5 S.C. 1.

In this respect, a Counsel’s submission, no matter how brilliant, is certainly not a substitute for credible evidence. See Oduda v. Coker (1981) 5 S.C. 197, Niger Construction Ltd. v. Okugbeni (1987) 4 N.W.L.R. (Pt.67) 787 and Odubeko v. Fowler (1993) 7 N.W.L.R. (Pt.308) 637 at 555. For the foregoing reasons therefore, the finding of the Court below that the trial Court had no evidence before it supported by pleadings that the contractual relationship between the parties was voided by elements of illegality, misrepresentation and impersonation, was on firm ground and I accordingly uphold it in resolving the present issue.

The 3rd issue is whether the Court of Appeal was right in granting the Respondent’s counter-claim. In support of this issue, learned Counsel to the Appellant merely relied on the arguments submitted in support of the 1st and 2nd issues already determined. All the learned Counsel re-iterated is that having regard to the fact that the contractual relationship between the parties was tainted with illegality, misrepresentation and impersonation, the Respondent’s counter-claim predicated on the agreement Exhibit A and the letter of termination exhibit C, ought not to have been granted by the Court of Appeal and that on that account, this issue should be resolved in favour of the Appellant.

For the Respondent, its learned Counsel explained that the Respondent’s counter-claim is contained in paragraph 31 relief (a) where the Respondent sought for a declaration that the Marketing License Agreement Exhibit A entered between the parties in 1995, had been lawfully determined by reason of non-renewal of that agreement. That the Appellant having been given one month’s notice of the termination of the agreement as provided under clause 1.1 of the Agreement Exhibit A, the termination letter Exhibit C must be given its legal effect in terminating the Agreement between the parties. The cases relied upon in this respect include Mobil Oil Nigeria Limited v. Johnson (1961) 1 All NLR 102 at 103.

The Respondent’s counter-claim which the Court below granted in allowing the Respondent’s appeal is contained at page 20 of the record of this appeal where the Respondent claimed under paragraph 30 reliefs (a) – (f). The main declaratory relief claimed in relief (a) reads

“A Declaration that the Marketing License Agreement dated 1995 Between the Plaintiff and 1st Defendant has lawfully determined by reasons of lawful non-renewal of the agreement.”

Taking into consideration that the Appellant is not challenging the provisions of the Agreement between the parties Exhibit A which gives the parties to it the right to terminate it by one month’s notice, the fact that the Respondent had taken steps under clause 1.1 to terminate the Agreement between the parties by giving the Appellant the required notice in the letter Exhibit C, the parties as having been effectively determined. This is because the Appellant having clearly failed to plead and lead credible evidence that the contractual relationship between him and the Respondent was afflicted by illegality, misrepresentation and impersonation, the Court below was quite right in granting all reliefs sought by the Respondent in its counter-claim. This last issue is also resolved against the Appellant.

In the final result, this appeal having failed, is hereby dismissed with N50,000.00 costs to the Respondent against the Appellant.

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SC.165/2004