James B. C. Mmegwa V. Texaco Nigeria Plc (2005)

LawGlobal-Hub Lead Judgment Report

MIKA’ILU, J.C.A.

This is an appeal against the judgment of Anambra State High Court, Ihiala judicial division in suit No. HIH/16/85, James R.C Mmegwa v. Texaco Nigeria Plc., delivered on 2nd April, 2001. As per the statement of claim of the appellant as the plaintiff under paragraph 2, it was alleged by the appellant as plaintiff as follows:-

“2. The defendant entered into an agreement with the plaintiff for the grant to the defendant of lease of the plaintiff’s land, situate in Ihiala, within the jurisdiction of this court, and the construction on the said land by the defendant of a petrol filling station at which the plaintiff on (sic) his nominee, shall be appointed dealer by the defendant, for the sale and distribution of the defendant’s petroleum and other products.”

In the suit, the appellant alleged default on the part of the respondent. He therefore under paragraph 22 of the statement of claim, claimed against the respondent as follows:-

“An order of this honourable court of specific performance compelling the defendant to execute the lease, the terms of which had been negotiated and agreed upon with the plaintiff, as contained in the final draft lease, signed by the plaintiff; in respect of the agreed area in plan No. MCE/68/80 for which the plaintiff holds the certificate of occupancy in his name registered as No. 45 at page 45 in volume 525 in the office at Enugu and to perform forthwith the terms and stipulations therein on their part to perform.

The said lease to take effect from 10th November, 1980. And/or such order or orders as the court may deem just in the circumstances.”

After evidence had been taken during the addresses, the appellant applied to amend the above paragraph 22 of the statement of claim by adding:

“If the court finds that the plaintiff is not entitled to specific performance of the whole or any part of the contract, the plaintiff then asks for damages.”

The learned Counsel for the respondent/defendant did not object, but asked for substantial costs of N2,000.00. The appellant’s counsel offered N1,000.00. The trial court granted the application and paragraph 22 was amended accordingly. The trial court awarded cost in the sum of N1,000.00 against the appellant in favour of the respondent. Refer to page 50 line 29-10 page 51 line 2.

At the trial, the appellant testified and called no other witness. The defendant called one witness. Some documents were tendered also in evidence by the parties. Both parties addressed the court. The trial court having considered the entire evidence and the addresses of the parties came to the conclusion that the claim of the appellant failed and dismissed the suit. Thus, the plaintiff aggrieved by the said judgment filed this appeal.

Before this court, briefs have been filed and exchanged. When this appeal came up for hearing on 15th March, 2005, the learned Counsel for the appellant, A. A. Edumanu, adopted the appellants brief filed on 15th September, 2003. The learned Counsel for the respondent, Dr. E.E.J. Okereke adopted the brief of argument of the respondent dated and filed 12th November, 2003.

In the brief of argument of the appellant, two issues have been formulated for determination. The issues are:-

(i) Whether the trial court was right in coming to the conclusion it reached, that the appellant has no remedy in specific performance.

(ii) Whether the trial court was right in suo motu, vacating its order granting the amendment of the plaintiff’s statement of claim to admit of the award of damages (in the alternative), notwithstanding its finding at p. 68 lines 27-34 of the record, “That the plaintiff in the circumstances of this case is entitled to some measure of damages.”