MR. ARCHIBONG NKANA v. ABIMBOLA HUNDEYIN

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of the High Court of Lagos State, presided over by Y,O. Idowu, J. delivered on the 5th day of June, 2009.
The trial Court dismissed the appellant’s claim for possession and arrears of rent primarily on the premise that the appellant had failed to establish evidence of a tenancy relationship between him and the Respondent.

The background facts on the part of the Appellant are that on the 1st day of March, 2001, Union Dicon Salt Plc sold to the appellant, the property known as No. 3, Biaduo street, South-west, Ikoyi, Lagos. It was made out that prior to the sale of the property to the Appellant, the Respondent had been a tenant of Union Dicon Salt Plc on the property. On the sale of the property to the Appellant, Union Dicon Salt Plc was said to have written letters to its tenants inclusive of the Respondent introducing the Appellant as the new owner of the building. The company was said to have issued Notices to Quit to all the tenants. The Appellant made out that he caused fresh Notices to Quit to be served on the tenants including

the Respondent, the notices were followed by the service of 7 days Notices of owners intention to recover Possession.

The Respondent did not vacate the premises on the basis of an alleged breach by the Union Dicon Salt plc of a prior agreement to sell the property to her. This led to the Appellant instituting Suit No. LD/1629/2003 against the Respondent. By the Appellant’s 2nd Amended Statement of claim of 26th April, 2004, the following reliefs were sought:

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a. Possession of all that 2 bedroom semi detached house situate at No 3 Biaduo Street, South West Ikoyi, Lagos,
b. A mandatory injunction compelling the Defendant to discharge her terminal obligations by redecorating the premises and settling and discharging all outstanding electricity, telephone, water and township bills.
c. Arrears of rent from August, 2000 to 30 November, 2001 in the sum of N400,000.00 per anum.
d. Mesne profits at the rate of N1,000,000.00 from 1st December, 2001 until possession is given up.”

The respondent defended the action and also counter claimed as follows:
“SPECIFIC PERFORMANCE of the contract for the sale of No. 3 Biaduo Street, South-West Ikoyi, Lagos between the counter – claimant and the 2nd Defendant;
b. ALTERNATIVELY N20 Million (N20,000,000.00) being special, exemplary and general damages for BREACH of the contract of sale against the 1st and 2nd Defendant;
c. COST of the action.”

The appellant responded to the counter claim. At the close of the trial, the learned trial judge dismissed the Appellant’s claim and granted the Respondent’s alternative claim for damages. The appellant who was dissatisfied with the judgment appealed to this Court. A sole issue was formulated for the determination of the appeal as follows:
“Whether the dismissal of the Appellant’s claim for possession and other incidental reliefs was not in the light of the evidence led at the trial erroneous, particular regard being had to the undisputed fact before the Court that the Respondent was prior to the sale of the property, a tenant of the Appellant’s predecessor in title?
Grounds 1,2,3,4 and 5.

The Respondent also distilled a sole issue for the determination of the appeal thus:
“In view of the state of evidence led at the trial Court whether the trial Court was not right in dismissing the Appellant’s claim for recovery of possession for failure of the Appellant to establish his entitlement to possession of the property at No. 3 Biaduo Street, South West, Ikoyi, Lagos.”
Grounds 1, 2, 3, 4 and 5.

Before the main appeal was argued, the learned counsel to the Respondent Ayo Adesanmi Esq. in appeal No. CA/L/786/09 and for the appellant in appeal No. CA/L/39/11 with Omolade Adeyemi and Olayide Salami Esq. raised and argued his preliminary objection filed on 16/6/17 pursuant to Sections 2 (1) and 24 of the Legal Practitioners Act, CAP 207, Laws of the Federation. The following reliefs were sought:
1. AN ORDER of this Honourable Court striking out and/or dismissing the appeal for being incompetent.
2. AND FOR SUCH further orders as this Honourable Court may deem fit to make in the circumstances of this case.

The grounds upon which the application was brought are as follows:
1. The suit leading to the instant appeal was instituted at the High Court of Lagos state (lower Court) vide a Writ of Summons and Statement of Claim dated 21st July, 2003 and filed on 30th July 2003.
2. The statement of claim which was filed with the writ of summons in initiating the action at the lower Court was signed by “Excellence Solicitors”.
3. “Excellence Solicitors” is not a person known to law.
4. By virtue of Sections 2(1) and 24 of the Legal Practitioners Act, “Excellence Solicitors” is not a person whose name is on the Roll of Legal Practitioners authorized to practice as a Barrister and Solicitor in Nigeria.”
5. Appellant’s counsel admitted, when the appeal came up for hearing on May 30, 2017, that the statement of claim before the lower Court was signed by an entity unknown to law as a person or legal practitioner.
6. Arising from the foregoing, the Statement of Claim signed by “Excellence Solicitors” is incompetent and evidence led In respect of same warrants the dismissal of this appeal.
7. Further to the above, this appeal premised on the appellant’s incompetent claims before the lower Court is incompetent.
8. Further to the foregoing, the instant appeal and the reliefs sought thereat in respect of the incompetent claims filed before the lower Court are incompetent and without merits having been premised on incompetent claims.”

The application was supported by a five paragraph affidavit to which Exhibit 1 the statement of claim dated July 21, 2003 but, filed on July 30, 2003 was attached and a written address. Also relied upon is a reply address in response to the Respondent’s counter affidavit and written address filed on 12/10/17, these processes were adopted and relied upon by learned counsel in urging us to strike out or dismiss the appeal.

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Reliance was placed on the case of FBN VS. MAIWADA (2013) 5 NWLR (PT. 1348) P.444 at 485. It was argued that the appellant conceded that the statement of claim was signed by a firm in paragraph 3 of the counter affidavit. In paragraph 4 of the affidavit in support of the application, it was deposed that the appellant’s statement of claim dated July 21, 2003 was/is signed by ‘Excellence Solicitors’, Exhibit 1 attached to the affidavit, not a person known to law and/or a recognizable legal practitioner. It was deposed that the appellant’s appeal is premised on the appellant’s unsigned statement of claim before the lower Court.

In the learned counsel’s address in support of the respondent’s application, a sole issue was raised thus:
“In the light of Sections 2 and 24 of the Legal Practitioners Act and settled case law vis – a – vis the statement of claim signed by and/or in the name of a law firm, whether this Honourable Court will not dismiss this instant appeal.”

The learned counsel to the Respondent/Applicant identified the main issue as: whether a statement of claim signed by and/or in the name of a law firm is competent? The answer was in the negative. It was submitted that the appellant in his claim before the lower Court incompetently signed his statement of claim containing reliefs sought therein. Reference was made to the last page of Exhibit ‘1’, the appellant’s statement of claim. Reference was also made to Sections 2(1) and 24 of the Legal Practitioners Act (LPA) which provides for who can practice law in Nigeria, to the effect that it is only those whose names are on the role of the Supreme Court of Nigeria that can practice as a barrister and solicitor in the country. Rule 12 of the Rules of Professional Conduct (RPC) was also relied upon. See, OKAFOR VS. NWEKE(2007) 10 NWLR (PT.1043) 521 where the Supreme Court held as incompetent a notice of appeal endorsed by the law firm of a learned Senior Counsel. See, also N.N.B. PLC VS. DENCLAG LTD (2005) 4 NWLR (PT. 916) 540, NIGERIA ARMY VS. SAMUEL (2013) 14 NWLR (PART 1375) 466 at 483, MINISTRY OF WORKS & TRANSPORT, ADAMAWA STATE VS. YAKUBU (2013) 6 NWLR (PT.1351) 481 at 496 and OLAGBENRO VS. OLAYIWOLA (2014) 17 NWLR (PT. 1436) 313 at 366 TO 367. Also, in MOUDKAS NIG. ENT. LTD AND ORS VS. OBIOMA & ORS (2016) LPELR 40165 at 6 where the action was held to be incompetent despite an amendment where the writ of summons was competently signed but, the statement of claim was not properly signed. (See also, the additional list of authorities filed by the learned counsel to the Respondent). Similarly, the case of EKUNDAYO & ANOR VS. ABERUAGBA (2017) LPELR 42428 to the effect that an amendment cannot cure an incompetent process.

We were urged to dismiss the reliefs sought on appeal as they were premised on an incompetent statement of claim where the reliefs were sought. See, OJUKWU VS. ONYEADOR (1991) 7 NWLR (PT.203) 286 at 306, SKEN CONSULT VS. UKEY(1981) 1 SC 6 at 27, MACFOY VS. UAC (1962) AC 152; 3 ALL ER 1169 at 1172 and SLB CONSORTIUM VS. NNPC(2011) 9 NWLR (PT.1252) 317 at 336.

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In opposing the application, the learned counsel to the Appellant/Respondent O.O. Ogungbade Esq. filed a five paragraph counter affidavit and a written address in urging us to dismiss the objection. In his counter affidavit, it was deposed in paragraph 3 that the writ was properly signed but, that the appellant’s statement of claim had a signature above the appellant’s address for service. It was deposed that the signature of one Mrs. Abiodun Durojaiye on the writ of summons is the same as the signature that is on the statement of claim even though the name was omitted. It was deposed in paragraph 4 that the name of the legal practitioner who signed the statement of claim was not stated thereon.

In the address of the learned counsel to the appellant in opposing the application, a sole issue was also raised thus:
“Whether this appeal is incompetent by reason of Sections 2 and 24 of the Legal Practitioners Act having regard to the undisputable fact that the unidentified signature which appears on the Appellant’s Statement of Claim is the same as that which appears on the Writ of Summons duly signed by an identified legal practitioner.”

The learned counsel in his submission conceded that a process that is unsigned or signed defectively is worthless in the eye of the law. It was also conceded that the statement of claim was signed in the name of Excellence Solicitors but, it was argued that the appeal is competent since the legal practitioner who signed the statement of claim is discoverable from the records of Court. It was submitted that at page 4 of the printed records of appeal, where the last page of the statement of claim appears, there is a signature. The Learned counsel argued that the writ of summons which was signed by one Mrs. Abiodun Durojaiye, a legal practitioner in Excellence Solicitors is similar to the signature on the statement of claim. We were urged to compare the signatures which are the same. See, NGIGE VS. OBI (2006) 14 NWLR (PT. 999) 1 at 143 and Section 101 of the Evidence Act, 2011. In urging us to do substantial justice, reference was made to the case of WILLIAM VS. ADOLD INTERNATIONAL LTD. (2017) 6 NWLR (PT. 1560) PAGE 1 at LINES 19 and 20 to the effect that we could utilize the faulted process to do substantial justice. It was stressed that the signature on the statement of claim is the same as the one on the writ of summons which was filed on the same day.

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It was argued that, the objection is that the name of the owner of the signature is unknown not that the process in question has no signature. It was contended that Mrs. Abiodun Durojaiye’s name is on the roll of Legal Practitioners and that she signed the process in question. It was argued that the statement of claim was properly signed and that the argument that it was signed by an unknown person should fail. Further, that the law and judicial inclination to do substantial justice warrants a comparison of the signatures on the Writ and Statement of Claim which would lead to the conclusion that the Statement of Claim was indeed signed by an identified legal practitioner, Mrs. Abiodun Durojaiye.

On the proper order to make where a statement of claim is not properly signed is to hold that only the proceedings in respect of the incompetent process is incompetent. See, SLB CONSORTIUM VS. NNPC (supra). We were urged to dismiss the objection and if the issue is decided against the Appellant, to remit the suit to the trial Court for the Appellant/Respondent to file a properly signed statement of claim and rehear the dispute before the trial Court.

In his reply address to the Appellant’s counter affidavit and written address in opposition to the Respondent/Applicant’s application, it was submitted that it is clear that no name could be traced to the statement of claim as it was signed in the name of “Excellence Solicitors”. It was argued that no trial is being conducted by this Court to warrant the comparison of signatures. It was stressed that the Appellant has not made out that the statement of claim did not have beneath the signature on the statement of claim “Excellence Solicitors” as having signed same. We were urged to strike out the statement of claim and action at the lower Court that gave rise to this appeal. See, NIGERIAIN ROMANIAN WOOD & ANOR VS. J.O. AKINGBULUGBE (2010) LPELR – 9140 (CA) 1 at 31. It was concluded that an amendment cannot remedy the incompetent statement of claim. See, THOMAS VS. OLUFOSOYE (1986) 1 NWLR (PT.18) 669 at 682. We were urged to dismiss the Appellant’s suit at the lower Court, strike out and/or dismiss the appeal.

With the main appeal, the learned counsel to the Appellant, O.O. Ogungbade Esq. appearing with Toyese Owoade Esq. and O.O. Owotunmi Esq. relied on his brief of argument filed on 27/8/10, deemed properly filed on 18/5/11 and his reply brief filed on 11/3/13 in urging us to allow the appeal.

I had earlier on in this judgment given the sole issue as distilled by the Appellant for the determination of the Appeal. The learned counsel to the appellant was of the view that the trial Court was wrong to have dismissed the plaintiff’s (Appellant’s) case at lower Court. It was argued that the Appellant’s witnesses PW1 and PW4 had made it clear that Union Dicon Salt Ltd., the previous owners of the property had sold same to the appellant and that their evidence was not shaken under cross examination which was said to have established the pleadings in paragraphs 1, 3 and 4 of the 2nd Amended Statement of Claim at pages 30 – 31 of the records of appeal. Further, that prior to the sale to the Appellant, the Respondent was a tenant of Union Dicon Salt Plc. It was argued that the property having been sold to the Appellant, which was established, the appellant was correct to have asserted that the Respondent was his tenant. See, FARAJOYE VS. HASSAN (2006) 16 NWLR (PT.1006) 463. It was submitted that the trial Court at page 309 of the printed records confirmed that the Respondent as defendant was a tenant to the vendor to the claimant, in respect of the two (2) bedroom detached house and was paying an annual rent of N400,000.00. It was argued that the trial Court was wrong to have held that the appellant failed to establish the nature of the tenancy. Further, that the Respondent admitted being served with the Notices to quit, page 283 of the records, also page 308 in the judgment of the trial Court. It was concluded that based on the evidence led, the claim for possession ought to have been granted by the lower Court. We were urged to allow the appeal.

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In response, the learned counsel to the Respondent Ayo Adesanmi Esq. with Omolade Adeyemi and Olayide Salami Esq. relied on his brief of argument filed on 18/10/12 but deemed properly filed on 25/2/13. I had also earlier in this judgment outlined the sole issue asformulated by the Respondent for the determination of the appeal. The respondent identified the main issue to be whether the Appellant satisfactorily proved the essential ingredients or requirements that would entitle him to recovery of possession? The respondent was of the view that the Appellant did not. It was argued that the burden is on the appellant to establish that he is entitled to the recovery of possession of the property at No.3, Biaduo Street, South West, Ikoyi. See, ORJI VS. D.T.M. (NIG) LIMITED (2009) 18 NWLR (PT.1173) 467 at 490, ARCHIBONG VS. ITA (2004) 2 NWLR (PT. 858) 590 at 618 619, SECTIONS 131, 132 and 135 of the Evidence Act, 2011. Also, Section 36 of the Rent Control and Recovery of Residential Premises Law Cap R. 6 Laws of Lagos State of Nigeria, 2009 which defines who a landlord is. The Respondents case is a challenge to the Appellant’s claims as the landlord of No. 3 Biaduo Street, South West Ikoyi, Lagos. see, also OGHENE & SONS LTD VS. AMORUWA & ANOR (1986) 2 NSCC 845 at 849 to the effect that the identity of the real landlord must first be settled before determining an action for recovery of possession.

It was submitted that a landlord/tenant relationship must first be established before an institution of an action for recovery of possession.
See, Section 16 (1) of the Rent Control and Recovery of Residential Premises Law Cap. R. 6 Laws of Lagos State of Nigerian, 2003. It was submitted that the appellant did not lead evidence to establish his entitlement to the property or that he is entitled to an interest in reversion in the property. Further, that the evaluation of evidence by the trial Court which was faulted ought not to be disturbed, as it is within the purview of the trial Court to evaluate evidence except where the findings are perverse.
See HENSHAW VS. EFFANGA (2009) 11 NWLR (PT. 1151) 65, EBBA VS. OGODO (1984) 1 SCNLR 372, ODOFIN VS. AYOOLA (1984) 11 SC 72, BUNYAN VS. AKINGBOYE (1999) 7 NWLR (PT.609) 3 and AYAKORA VS. OBIAKOR (2005) 5 NWLR (PT. 919) 507.

On the service of the notices to quit, it was submitted that the Notices served on the Respondent are of no moment because there was no landlord and, tenant relationship between the Appellant and the Respondent. see, ODUTOLA VS. SAMUEL & ORS(1956) NSCC at 70 – 71 to the effect that service of a statutory Notice where there is no landlord and tenant relationship is irrelevant, thus making the Notices to quit served on the respondent, invalid. We were urged to dismiss the appeal.

In the appellants reply brief, it was submitted that with the state of evidence led, the dismissal of the Appellant’s claim for possession was wrong, despite the trial Court’s finding that the previous owners were vendors to the Appellant.

It is trite that where a preliminary objection has been raised challenging the competence of the case or an appeal as in the present situation, the preliminary objection must first be resolved to determine the competence or otherwise of the appeal. The reason is, where successful, the appeal ends there but, if unsuccessful, there would then be need to resolve the substantive appeal. See, ASANI SOGUNRO & ORS VS. AREMU YEKU & ORS (2017) LPELR – 41905 (SC), G.E.C. VS. AKANDE & ORS (2010) 18 NWLR (PT. 1225) 506. SPDC NIG. LTD VS. AMADI & ORS(2011) 14 NWLR (PT. 1266) 157 at 183. I would therefore consider first the preliminary objection raised and argued by the learned counsel to the Respondent.

It is at the stage of the present appeal that the learned counsel to the respondent faulted in his preliminary objection, the statement of claim attached as Exhibit 1 to the affidavit in support of the application, dated 21st July, 2003 but filed on 30th July, 2003, at pages 3 – 4 of the printed records of appeal. The learned counsel had argued that the statement of claim which the learned trial judge utilized in determining the appellant’s suit before the lower Court was not signed by a legal practitioner known to law and therefore incompetent. We were urged to strike out or dismiss the appeal from the decision of the lower Court as being incompetent. There is no doubt that the statement of claim bears a signature without an identifiable legal practitioner’s name beneath it. It was endorsed as follows:
“SGD
Excellence Solicitors,
Solicitors to the plaintiff,
NUJ Lighthouse (3rd floor),
3/5 Adeyemo Alakija Street,
Victoria Island, Lagos.”

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The learned counsel to the Appellant has not argued that a named legal practitioner signed beneath the signature but,rather that the signature on the writ of summons is the same as the one on the statement of claim. The learned counsel to the Appellant admitted in his paragraph 3 (c) and 4 of his counter affidavit that the name of the legal practitioner who was said to have signed the statement of claim was not stated thereon. What is beneath the signature is “Excellence Sollcitors” which is not the name of a legal practitioner or person known to law. It is apt at this point to reproduce hereunder the legislation governing the legal profession in Nigeria as to who can practice law in Nigeria. Sections 2(1) and 24 of the Legal Practitioners Act (LPA), Laws of the Federation of Nigeria, 2004 for ease of reference provides thus:
“2(1) subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is on the roll.”
24. “In this Act, unless the context otherwise requires, the following expressions have the meanings hereby assigned to them respectively, that is to say…. Legal Practitioner means a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings.”
The purpose of the above provisions is to protect members of the legal profession, to ensure that only lawyers whose names are on the roll of legal practitioners sign legal documents to eliminate impersonators and/or non lawyers that have not been registered on the roll from legal practice and more recently, the seal of the legal practitioner is required to be against the signature of the legal practitioner in Court processes. The firm or chamber of a legal practitioner cannot perform the duties of a legal practitioner.See, FIRST BANK OF NIGERIA PLC and ORS VS. SALMANU MAIWADA (2013) 5 NWLR (PT.1348) 444 at 483 PARAS. B ???C. See, also SLB CONSORTIUM VS. NNPC (2011) 9 NWLR (PT.1252) 317 at 336.
No doubt, there is a signature endorsed on the statement of claim but, by the way the signature is endorsed, one cannot decipher the name of the person that signed it and the name was also not endorsed beneath it. The learned counsel while placing reliance on NGIGE VS. OBI (2006) 14 NWLR (PT.999) 1 at 143 and AIGBOBAHI VS. AIFUWA (2006) 6 NWLR (976) 270 at 294 and Section 101 of the Evidence Act, 2011 urged us to compare the signature on the statement of claim with other processes in the file to determine who signed it. I am of the view that the above authorities cited and relied upon by the Appellant do not apply to this case. Ngiges case would be applicable where the authenticity of a signature is challenged. In those line of cases too, the names of the authors or alleged authors were identifiable before the issue of comparison of signatures was resolved. Section 101 talks about a signature by “that person”, there is no named or identifiable person or legal practitioner that signed the statement of claim. Mere comparison of signatures cannot cure the anomaly.

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‘Excellence Solicitors’ is not a legal practitioner recognized by law. In the celebrated case of OKAFOR VS. NWEKE (2007) 10 NWLR (PT.1043) 521 the Supreme Court made it clear that where a firm of Solicitors signed the offending processes, the motion on notice, notice of cross – appeal and a brief of argument, the Apex Court held that the said processes were incompetent, same having not been issued by a legal practitioner known to law, and were consequently struck out. Subsequent Supreme Court decisions and those of this Court have consistently hammered that a firm of solicitors is not a legal practitioner recognized by law and cannot validly/legally sign and/or file any process in the Court. See, MINISTRY OF WORKS & TRANSPORT, ADAMAWA STATE VS. YAKUBU (2013) 6 NWLR (PT. 1351) 481 at 496, SLB CONSORTIUM VS. NNPC (2011) 9 NWLR (PT. 1252) 317 at 336, NIGERIA ARMY VS. SAMUEL (2013) 14 NWLR (PT. 1375) 455 at 483, OKARIKA VS. SAMUEL(2013) 7 NWLR (PT. 1352) 19, ALAWIYE VS. OGUNSANYA (2013) 5 NWLR (PT. 1348) 570. Also HAMZAT & ANOR VS. SANNI & ORS (2015) 5 NWLR (PT. 1453) 486. In a decision of this Court in MOUDKAS NIG. ENT. LTD & ORS VS. OBIOMA & ORS (2016) LPELR-40165 at P.6 10, where a writ of summons was competently signed but, the statement of claim was not properly signed, this Court held that the action as initiated was incompetent irrespective of the amendment done. In other words, even a purported amendment could not cure the incompetence. See, also EKUNDAYO & ANOR VS. ABERUAGBA (2017) LPELR – 42428 as to the impossibility of amending an incompetent process of the Court. In M.O. Moudkas’ case (supra) (2016) LPELR – 40165 (CA) at pages 6 – 8 paras. C E, his Lordship, Ikyegh, JCA in respect of a statement of claim not signed by a party or legal practitioner held thus:
“Of the statement of claim, I am of clear in my modest opinion that it was not signed by a recognized or known registered legal Practitioner or the claimants. It is on that score incurably defective”
Reliance in the above case was placed on amongst others, the Supreme Court decision of HAMZAT and ANOR VS. SANNI & ORS (2015) 5 NWLR (PT. 1453) 486 at PAGE 499 – 500 PARAS G A, where His Lordship, Galadima, JSC, reiterated that even where a writ of summons was signed by a legal practitioner but the statement of claim in the lower Court was not signed by a legal practitioner but by a law firm, thus:
“In view of our clear position in OKAFOR VS. NWEKE (supra) and other similar cases, I hold that the appellants’ statements of claim on which evidence was led, were a nullity, same having been signed in the name of a law firm which is not by the provisions of Sections 2(1) and 24 of the Legal Practitioners Act, Cap 2017, Laws of the Federation, 1990, a person entitled to practice as a Barrister and Solicitor.
Consequently, the statements of claim are hereby struck out.”

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Similarly, in the same judgment his Lordship Peter Odili, JSC at page 505, paras, D – G held thus:
“From what is put across by learned counsel for the respondent to which the learned counsel for the appellant merely glossed over and doing that failed to appreciate the danger their processes and competence were in, I find it easy to go along with the contention of the respondent that the appellants’ statement of claim on which evidence was led is a nullity having not been signed by a legal practitioner as known by the definition of Section 24 of the Legal Practitioners’ Act and so the statement of claim has to be struck out as a nullity and of course along with that striking out would be the evidence hanging on the purported pleadings. This is a situation well established by this Court in OKAFOR VS. NWEKE (2007) 10 NWLR (PT. 1043)521.
I hereby strike out the statement of claim and this appeal as the preliminary objection is upheld.”
His Lordship, Ariwoola, JSC, at page 505 – 506, paras. H – A in support, held that:
“The statement of claim upon which the evidence relied upon by the trial Court was based having been signed by a person not known to law as a legal practitioner, as required by our law, is incompetent, it deserves to be discountenanced and struck out. ..
Indeed as the saying goes, you cannot put something on nothing and expect to it stay, it will fall. Evidence led in the case based on the incompetent statement of claim is also incompetent and should be discountenanced and struck out.”
His Lordship, M.D. Muhammad, JSC at page 506 on his part, in support, held that:
“In upholding respondent’s preliminary objection that the appellant’s statement of claim on which the evidence leading to the decision in his favour rests is incompetent. Same is struck out.”
His Lordship, Aka’ahs, JSC in support and emphasizing on the stand of the Apex Court at page 507 held thus:
There is no dispute whatsoever that the statement of claim was not signed by a legal practitioner in accordance with Sections 2(1) and 24 of the Legal Practitioners Act, Cap. 207, Laws of the Federation.
It is therefore not a valid statement of claim: See: OKAFOR VS. NWEKE (2007) 10 NWLR (PT. 1043) 521. One of the conditions to be fulfilled upon which a Court would be competent to assume jurisdiction is that the matter coming before the Court is initiated by due process of law and upon fulfillment of all conditions precedent to the exercise of the jurisdiction.

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The statement of claim upon which the evidence of the plaintiff is based is not a valid document and no evidence could be considered on a defective statement of claim.
The said statement and evidence are liable to be expunged from the record. It is trite that you cannot put something on nothing and expect it to stand. See: SKENCONSULT (NIG.) LTD VS. UKEY (1981) 1 SC 6. No issues could have been joined on the pleadings unless the statement of claim was valid. Although the writ of summons is valid and the suit itself is still legally in existence, the striking out of the statement of claim as well as the statement of defence together with the evidence adduced on the pleadings cannot extinguish the suit. Consequently, this Court cannot make an order dismissing the suit. The plaintiffs/appellants are entitled to have a second bite at the cherry if they so choose.”
See, also a very recent decision of the full Court of the Supreme Court concerning

the position of the law in OKAFOR VS. NWEKE (supra), in Appeal No. SC. 9/2006. CHIEF GABRIEL IGBINEDION & ORS VS. UMOR ASUQUO ANTIA delivered on 15/12/2017 to the effect that OKAFOR VS. NWEKE (supra) has come to stay. All other decisions along that line emphasize that a process of the Court, in this case a statement of claim, signed in the name of a law firm Excellence Solicitors”, is not a person entitled to practice as a Barrister and Solicitor thus making the statement of claim on which evidence was led, incompetent. The statement of claim is fundamentally defective. Having held that the statement of claim is incompetent, as well as the evidence of the appellant as plaintiff based on the invalid document, in consequence the statement of claim, Exhibit 1 in the application is a nullity. I hold that the preliminary objection succeeds and is upheld. The statement of claim dated 21st July, 2003, filed on 30th July, 2003 and the evidence led in its support are discountenanced and hereby struck out.

Generally, this Court as an intermediate Court has the duty to pronounce on all the issues raised before it because it would be wrong on its stand and decision upholding a preliminary objection, in this case striking out the statement of claim as well as the evidence led utilizing the faulted statement of claim. Having held that the statement of claim utilized by the trial Court is a nullity as well as the evidence led in line with the same statement of claim, it would be a mere academic exercise to look into the substantive arguments in the appeal and resolution of the issues therein.

In the final analysis, having upheld the preliminary objection, the appeal is hereby struck out.

Parties to bear their respective costs.

CA/L/39M/2011
The appeal is against the judgment of Y.O. Idowu, J. of the High Court of Lagos State, delivered on the 5th day of June, 2009 in which the Court held that there was a valid contract between the Appellant and the 2nd Respondent gave judgment in favour of the Appellant by granting the alternative relief sought by the Appellant, without considering the principal relief.

The background facts are that the 1st Respondent instituted an action against the Appellant for possession of the two (2) Bedroom semi-detached house situate at No. 3, Biaduo Street, South West, Ikoyi, Lagos (The property) arrears of rent and other ancillary reliefs upon being served with the writ of summons and statement of claim, the Appellant counter claimed against all the Respondents on the ground that having purchased the property from the 2nd Respondent, she became the owner of the property.

It was made out that at the time of purchase the 2nd Respondent was unable to give the appellant the Deed of Assignment on the ground that the 2nd Respondent had not perfected its own title to the property. The names in the lands registry was still that of the original and former owners of the property.

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Thereafter, the Appellant sought the following reliefs from the trial Court:
a. “SPECIFIC PERFORMANCE of the contract for the sale of No. 3 Biaduo Street South-West Ikoyi, Lagos between the counter claimant and the 2nd Defendant,
b. ALTERNATIVELY, N20m (N20,000.00) being special, exemplary and general damages for BREACH of the contract of sale, against the 1st and 2nd Defendants;
c. COST of the action.”

The claims were mainly against the 2nd Respondent who did not defend the counter claim at the trial and thus did not join issues with the Appellant. It was made out by the Appellant that sometime in June 2000 the 2nd Respondent gave instructions to the Appellant to act as its agent in the sale of the property. The appellant made an offer to the 2nd Respondent to purchase the property through two letters dated 1st February, 2001, Exhibit ‘L’, at pages 122 – 124 of the printed records of appeal. The 2nd Respondent was said to have accepted her offer by writing to her through a letter dated 6th February, 2001 admitted and marked Exhibit E, pages 125 and 126 of the printed records.

At the close of the trial, the trial Court found in favour of the appellant that there was a valid contract between the Appellant and the 2nd Respondent, Exhibit ‘E’ was held to be a clear, concise and specific acceptance of the offer of the appellant to purchase the property by the 2nd Respondent. The trial Court after holding that there was a valid contract for the sale of the property between the Appellant and the 2nd Respondent granted the alternative relief of N10,000,000.00 (Ten Million Naira) in favour of the Appellant against the 2nd Respondent as damages for breach of contract without giving reasons for not granting the principal relief/claim for specific performance.

The appellant was dissatisfied with the grant of the alternative relief thus this appeal in which the appellant sought for an order allowing the appeal and setting aside the judgment of the lower Court awarding the alternative relief of damages and grant an order of specific performance of the contract. Two issues were distilled for the determination of the appeal as follows:
“Issue 1
Considering the finding of the lower Court that there was/is a valid contract between the Appellant and the 2nd Respondent, whether the lower Court was not in error in refusing to order specific performance of the contract of sale :-
Ground 1.
Issue 2
Whether the learned trial judge did not fall into grave error in considering and granting the alternative relief of the Appellant without considering at all her principal relief for specific performance:- Ground 2.

In reaction to the appeal, the learned counsel to the 1st Respondent O.O. Ogungbade Esq., raised a preliminary objection to the appeal which was argued in his brief of argument filed on 17/11/14 but deemed properly filed on 24/4/17. I will come to the objection later.

In arguing the appeal, Ayo Adesanmi Esq., appearing with Omolade Adeyemi and Olayide Salami Esq., relied on his brief of argument filed on 18/10/12 as well as his reply to the 1st respondent’s brief filed on 9/5/17 in which he responded to the Respondent’s preliminary objection and a reply to the 2nd respondent’s brief filed on 11/8/14 but deemed filed on 24/4/17 in urging us to allow the appeal.

In arguing his first issue, it was submitted that the trial Court rightly held that there was a valid contract between the Appellant and the 2nd Respondent with Exhibit ‘E’ as an acceptance of the offer made by the appellant. This finding was argued not to have been appealed against. It was argued that a contract entered into freely is binding on the parties and it is the duty of the Court to enforce it as it is. See, BEST (NIG) LTD VS. B.H. (NIG) LTD (2011) 5 NWLR (PT. 1239) 95 at 117, 126, MANYA VS. IDRIS (2001) 8 NWLR (PT.716) 627 at 639; AYANLERE VS. FMB (NIG) LTD (1998) 11 NWLR (PT. 575) 621 at 629 and FBN VS. AKINYOSOYE (2005) 5 NWLR (PT. 918) 340 at 398. It was argued that the trial Court ought to have given effect to the contract it held that existed between the Appellant and the 2nd Respondent by decreeing specific performance of the contract of sale. See, HELP (NIG) LTD VS. SILVER ANCHOR (NIG.) LTD (2006) 5 NWLR (PT. 972) 196 at 208 and BEST (NIG.) LTD VS. B.H. (NIG.) LTD (2011) 5 NWLR (PT. 1239) 95 at 119. It was argued that the appropriate order to have been made was that of specific performance. Reliance was placed on the cases of DAUDA VS. L.B.I. CO. LTD (2011) 5 NWLR (PT.1241) 411 at 428, OHIAERI VS. YUSUF (2009) 6NWLR (PT. 1137) 207 at-229 and GAJI & 2 ORS VS. PAYE (2003) 8 NWLR (PT. 823) 583 at 607 amongst others. It was further argued that the Appellant would not be adequately compensated in damages, also that the value of the property has increased significantly from when Exhibit E the acceptance was made by the 2nd Respondent in 2001, also that the Appellant has been in possession and occupation of the property for a long time, before the purchase. It was argued that the Appellant cannot purchase an alternative property for the sum of N18,000,000.00 which was the agreed purchase price of the property. See, MUMU VS. AGUR (1993) 8 NWLR (PT.313) 573 at 584 and ADIO VS. ATTORNEY GENERAL OYO STATE (1990) 7 NWLR (PT. 163) 448 at 494 – 495 amongst others.

It was submitted that this is an appropriate situation for the grant of an order of specific performance. We were urged to exercise our discretion in favour of the Appellant and decree specific performance of the contract of sale between the Appellant and the 2nd Respondent.

On the appellant’s second issue, it was submitted that the appellant’s main relief as contained in its counter claim is for specific performance of the contract of sale of No. 3 Biaduo Street, South-West Ikoyi, Lagos between the appellant and the 2nd Respondent. It was submitted that where a relief is sought in the alternative, the Court should consider first the principal or main relief sought. It is only where the Court finds that for any reason, it cannot grant the principal relief that it would consider the alternative relief; reasons must be given for not granting the principal relief. See, ODUTOLA HOLDINGS LTD VS. LADEJOBI(2006) 12 NWLR (PT. 994) 321 at 352, LAMURDE LOCAL GOVERNMENT VS. KARKA (2010) 10 NWLR (PT. 1203) 574 at 597. MERCANTILE BANK OF (NIG) LTD VS. ADALMA (1990) 5 NWLR (PT. 153) 747 at 769. 769; UBA PLC VS. MUSTAPHA (2004) 1 NWLR (PT. 855)Â 443 at 485 and MICHAEL VS. YUOSUO (2004) 15 NWLR (PT. 895) 90 at 119. Further, that it is the plaintiff’s claim that vests jurisdiction on the Court. See, EKPENYONG VS. NYONG (1975) 2 SC 71 at 80; ADEYEMI VS. OPEYORI (1976) 9 – 10 SC 31 and OHAKIM VS. AGBASO (2010) 19 NWLR (PT. 1226) 172 at 235 – 236. It was stressed that the trial Court in its judgment did not consider the main claim of specific performance before the grant of damages for breach of contract, the alternative relief. This was argued to be perverse. See, ONAYEMI VS. IDOWU (2008) 9 NWLR (PT. 1092) 306 at 337. We were urged to hold that it was wrong for the trial Court to have granted the alternative claim for damages without considering the principal relief of specific performance. We were urged to set aside the grant of the alternative relief and grant the main relief of specific performance.

………………………….N………………………………..

In response to the appeal as indicated earlier in this judgment,the learned counsel to the 1st Respondent O.O. Ogungbade Esq. with Toyese Owoade Esq. and O.O. Owotunmi Esq., relied on his brief of argument filed on 14 but deemed filed on 24/4/17 in which he incorporated his Notice of preliminary objection in which he urged that we uphold the preliminary objection and dismiss the appeal. The 1st Respondent’s preliminary objection challenged the competence of the Appellant’s appeal and contended that it is liable to be struck out. The grounds were given as follows:
(i) The Appellant in her counter claim sought the claims for specific performance and damages in the alternative indicating that she would be satisfied with the grant of either claim.
(ii) Having been granted the alternative claim for damages, the appellant is not within the law, an “aggrieved’ party” capable of invoking and exercising the right of appeal contained in Section 243 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended).

It was argued that the right of appeal to this Court provided for in Section 243 of the Constitution is available to an aggrieved party only. See, MOBIL OIL VS. MONOKPO (2003)115 LRCN 3016. The reliefs sought by the appellant as counter claimant at the trial Court were reviewed. It was argued that the Appellant having been granted the relief sought by her, cannot be an aggrieved party for the purpose of an appeal pursuant to Section 243 of the Constitution. Reliance was placed on the case of HELP NIG. LTD VS. SILVER ANCHOR (NIG) LTD (2005) 140 LRCN 2038 where an appeal to the Supreme Court was dismissed. The appellant took out an action for specific performance of a land sale and claimed in the alternative, a refund of the part payment. In the above decision, the appellant contended that the Court ought to have granted an order of specific performance. We were urged to dismiss the appeal.

In responding to the main appeal, it was submitted that the trial Court’s decision to grant the Appellant her alternative relief for damages was at the discretion of the Court based on the facts presented before the Court. It was argued that the appellate Court would not normally interfere with the trial Court’s exercise of discretion. See, ATIKU VS. YOLA L.G. (2003) 1 NWLR (PT. 802) PAGE 487, UNIVERSITY OF LAGOS VS. OLANIYAN (NO.1) (1985) 1NWLR (PT. 1) 156 at 163, UKWU VS. BUNGE (1997) 8 NWLR (PT. 518) PAGE 527. Further, that the argument that the trial Court ought to have granted the claim for specific performance was misplaced since the appellant had an alternative claim. It was contended that the argument that damages would not adequately compensate the appellant is belated. See, HELP (NIG) LTD VS. SILVER ANCHOR (NIG) LTD (2006) (supra) at PAGE 222 PARAGRAPHS E – E. Further, that the order for specific performance could not have been granted in favour of the appellant since she was not a party to the alleged agreement of sale. The Letter of the Appellant addressed to the 2nd Respondent dated 1st February, 2001 at pages 122 – 123 of the printed records was referred to, where the appellant clearly stated that she acted as solicitor to SFM Limited, her client who was interested in the outright purchase of the property. At page 124, the appellant also made reference to a prospective buyer and indicated that she was to be paid an agency fee at the conclusion of the transaction. Reference was made to the response by the 2nd Respondent on 6th February, 2001 accepting the offer for the sale of the property and to pay her agency fee. Further, the evidence of the PW3 under cross examination at page 271 of the records and the evidence of the Appellant under: oath, adopted at pages 284 285 of the records to the effect that she was acting as agent to the purchaser as well as the 2nd Respondent were referred to. It was submitted that the 2nd Respondent had not accepted the cheque or draft for the sale of the property therefore an order for specific performance could not be ordered. See, NIGERIAN LAND and SEA FOOD CO. LTD VS. ROADSIDE ENGINEERING FOUNDARY LIMITED & ANOR (1987), NWLR (PT.48) 191 and BIOKU VS. LIGHT MACHINE (1986) 5 NWLR (PT.39) 42. It was concluded that the trial Court considered the claim for specific performance before the grant of the alternative relief. We were urged to dismiss the appeal.

On the part of the 2nd Respondent, the learned counsel Felix Oyekoya Esq., appearing with Saratu Dan Abu relied on his brief of argument filed on 1/7/14 but deemed filed on 24/4/17 same was adopted as his argument in this appeal in urging us to dismiss same. The learned counsel adopted the two issues for determination as formulated by the appellant. On his first issue, it was submitted that the grant of an order for specific performance like every other equitable remedy is discretionary, which must be exercised judicially and judiciously. See, HELP (NIG) LTD VS. SILVER ANCHOR (NIIG) LTD (2006) 5 NWLR (PT. 972) 196 at P. 208, PARAGRAPHS C – H. It was submitted that the appellant did not lead material evidence in proof of the facts averred in support of the main relief for specific performance at the lower Court but proved the alternative relief sought.
See, NNB PLC VS. EGUN (2001) 7 NWLR (PT. 711) 1 at P. 19, PARAGRAPH G. It was argued that the appellate Court would only interfere with the exercise of discretionary power only when such discretion was exercised on the wrong or insufficient materials or where no weight or insufficient weight was given relevant consideration or where it is in the interest of justice to interfere. See, REMAWA VS. NACB C.F.C. LTD (2007) 2 NWLR (PT. 1017) 155 at P. 178. PARAGRAPHS C E, BELLO VS. A.G. LAGOS STATE (2007) 2 NWLR (PT. 1017) 115 at PP. 153 – 154, PARAGRAPHS H – A and BABATUNDE VS. P.A.S. & T.A. LTD (2007) 13 NWLR (PT.1050) 113 at P. 150, PARAS. C – E, to the effect that the appellate Court would only interfere with the exercise of the lower Court’s discretion in the most extra ordinary circumstances. It was also argued that where the plaintiff would be adequately compensated by remedy of damages, the Court will not grant an order of specific performance. See, AFROTEC TECH. SERV. (NIG) LTD VS. MIA & SONS LTD (2000) 15 NWLR (PT. 692) 730 at P. 790. PARAGRAPHS B – C and HELP (NIG) LTD VS. SILVER ANCHOR (NIG) LTD (supra) at PP 217 218, PARAS G – B. Further, that the contract was between the Appellant and the 2nd Respondent only, therefore an order of specific performance would be hard on the other respondents who were not part of the contract. It was argued that the subject matter of the contract has been sold to a third party; therefore a specific performance order could not be made. See, INT. TEXTILE IND. (NIG.) LTD VS. ADEREMI (1999) 8 NWLR (PT. 614) 268 at P. 304, PARAGRAPHS B C. It was contended that where a property is sold or transferred to a third party, such a property would have invariably lost its character. We were urged to resolve the first issue in favour of the 2nd Respondent.

On the second issue, it was argued that when a party makes a claim in the alternative, he wants either of the reliefs sought in which case either of the reliefs sought would suffice for the purpose of satisfying the claims in the alternative. See, HELP (NIG) LTD VS. SILVER ANCHOR (NIG) LTD (2006) (SUPRA) at P. 222, PARAGRAPHS E G.It was contended that based on the evidence before the trial Court, it appropriately evaluated and considered all the Appellant’s reliefs and was justified to have granted the alternative claim for damages. It was submitted that where an alternative relief is sought, the Court can grant either of the reliefs and that a claimant cannot insist on the grant of the other reliefs. See,OJO VS. OKITIPUPA OIL PALM PLC (2001) 9 NWLR (PT. 719) 679 at PAGE 694, PARAGRAPHS B – D. It was reargued that a grant of specific performance would work hardship against the 1st Respondent who was not a party to the contract between the Appellant and the 2nd Respondent. It was submitted that the trial Court was right to have granted the Appellants alternative monetary relief for damages. Further, that the findings of the trial Court are not perverse and should stand. It was concluded that a party must lead evidence in support of his averment. See, IHEANACHO VS. EJIOGU (1995) 4 NWLR (PT. 389) 324 at 338, PARAGRAPHS C – D. We were urged to hold that the appellant failed to lead evidence in support of his averment for her main relief of specific performance at the lower Court.

The learned counsel to the Appellant/Respondent responded to the 1st Respondent’s preliminary objection in his reply to the 1st Respondent’s brief of argument. In opposition to the 1st Respondent’s preliminary objection, the learned counsel to the Appellant defined who an aggrieved person is and relied on the cases of AKINBIYI VS. ADELABU (1956) SCNLR 109 and MOBIL OIL VS. MONOKPO (2004) ALL FWLR (PT. 195) 575 at 616. It was argued that the appellant is an aggrieved person therefore capable of appealing against the decision of the lower Court, the lower Court having deprived the appellant of what was due to her after the lower Court agreed with the case she made out before it. It was re-argued, that the lower Court ought to have granted the main relief of specific performance rather than the alternative relief and that an appeal would lie against the refusal of a Court to do what it is duty bound to do. See, AKPAN VS. BOB (2010) 17 NWLR (PT. 1223) 421 at 464 465. It was concluded that the respondent did not attack any of the grounds of appeal and by this conceded the complaints of the appellant as being valid.

………………………….Q………………………………..

In reply to the 1st respondent’s arguments in the main appeal, the contents of the reply brief are basically a reargument on the order the lower Court ought to have made, an order of specific performance. The lower Court having found that the appellant proved her case and no reason was given for refusing to consider the principal relief before granting the alternative relief. The case of HELP VS. SILVER (2006) (supra) was distinguished, because in the above case, the trial Court dismissed the main claim, gave reasons for doing so before proceeding to grant the alternative relief. The principal relief was said not to have been considered by the trial Court in the present appeal. We were urged to intervene to enforce the terms of the agreement between the parties by granting the principal relief sought in the appellant’s counter claim for specific performance to enable the appellant to continue enjoying her long possession.

In the appellant’s reply to the 2nd respondent’s brief of argument filed on 11/8/14, as a preliminary point, we were urged to discountenance the issues formulated by the 2nd respondent as not having been tied to the grounds of appeal. On the other hand, the learned counsel responded to the issues as argued in the Respondent’s brief. It was reargued that parties are bound by the terms of contracts validly entered into and that the Courts are to give effect to the contract. Reliance was placed on the following cases, MANYA VS. IDRIS (2007 FWLR (PT.23) 1237 at 1250, AP LTD VS. OWODUNNI (1991) 8 NWLR (PT. 210) 391 at 414, ALH VS. HUSSEIN (2004) FWLR (PT.194) 496 at 508 and BRIG VS. BPE (2011) 18 NWLR (PT.1332) 209 to the effect that specific performance was ordered despite the fact that a 3rd party had acquired interest in the res. It was also reargued that the lower Court having found that there was a valid contract between the parties, ought to have granted the order of specific performance to enforce the express terms of the contract entered by the parties. See, amongst a host of authorities cited and relied upon by the learned counsel to the appellant, M.V. CAROLINE MAERSK VS. NOKOY INVESTMENT LTD (2002) 12 NWLR (PT. 782) 472, STB LTD VS.ANUMNU (2008) 14 NWLR (PT. 1106) 125 at 155 to the effect that it is only when a principal relief cannot be granted, that the Court would consider the alternative relief.

It is trite that where a preliminary objection is raised, same must be determined first before going into the substantive issues, appeal in the present situation.

I have examined the arguments in support and against the preliminary objection in which the learned counsel to the 1st respondent cited and relied on Section 243 of the Constitution of the Federal Republic of Nigeria as to who can exercise his right of appeal to the Court of Appeal. The learned counsel to the 1st Respondent has not made out that the appellant was not a party to the proceedings in the lower Court as provided in the above Section. See, SOCIETE GENERALE BANK NIGERIA LTD VS. AFEKORO & ORS (1999) LPELR -3082 (SC) at P. 25, PARAS A – D. His Lordship, Ogundare, JSC in defining who an “aggrieved party” is held thus:
“In Exparte sidebotham, in Re sidebotham (1880) 14 CGD 458 at 465 James, L.J. declared as long ago as over a century: It is said that any person aggrieved by any order of the Court is entitled to appeal. But, the words person aggrieved’ do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A ‘person aggrieved’ must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something.”
See, also ABACHA VS. F.R.N. (2014) LPELR – 22014 (SC) and IN RE: ALHAJA AFUSAT IJELU & ORS VS. LAGOS STATE DEVELOPMENT & PROPERTY CORPORATION & ORS (1992) NWLR (PT. 266) 414; (1992) LPELR – 1464. In this appeal, the appellant appealed, as a person with a legal grievance that the grant of the alternative relief deprived her of specific performance of the contract of sale which she felt she was entitled to. It is therefore erroneous for the learned counsel to the 1st respondent to have argued that the appellant is not an “aggrieved party” since she was granted the alternative relief. On my part, I would say that if the appellant was not aggrieved by the decision of the lower Court, she would not have appealed. The case of MOBIL OIL VS. MONOKPO (2003) (supra) cited and relied upon by the learned counsel to the 1st respondent is not applicable to the appeal since the judgment of the lower Court was given in respect of the appellant who participated in the proceedings as a party, a decision which did not go down well with the her, thus this appeal.

I hold that the preliminary objection raised and argued by the 1st respondent is without merit, same is hereby dismissed.

With the main appeal, I have examined the issues formulated by the parties and I would adopt the appellant’s two issues which cover the issues at stake in this appeal, also covers those formulated by the respondents. As a preliminary point in the appellant’s reply brief to the argument of the 2nd respondent’s learned counsel, it was submitted that the issues formulated by the 2nd respondent are incompetent as they are not related to the grounds of appeal. I have examined the issues formulated by the learned counsel to the 2nd Respondent; they are similar to those formulated by the appellant’s learned counsel except that they are differently worded. I cannot fault the issues as formulated by the 1st respondent. The preliminary point argued by the appellant in paragraphs 2.2 of her brief of argument is hereby discountenanced.

………………………….S………………………………..

The appellant’s first issue is considering the finding of the lower Court that there was a valid contract between the Appellant and the 2nd Respondent, whether the lower Court was not wrong not to have made an order of specific performance of the contract of sale?
There is no doubt from the decision of the trial Court that there was in existence a valid contract of sale of the property in question between the Appellant and the 2nd Respondent. A contract freely entered into by the parties is binding on the parties and truly, it is the duty of the Court to enforce it. This the appellant sought by seeking an order for specific performance from the Court of the contract of sale. It is true that generally, an order of specific performance is a discretionary remedy but, it must be judicially and judiciously exercised. The Court is expected to balance the interest of both sides properly in its bid to do justice to the contending parties. To this end, the learned trial Court in its judgment, at page 312 of the printed records righty held that there was a binding contract between the appellant and the 2nd Respondent, relying on Exhibit ‘E’, dated 6th February, 2001, the letter of acceptance of the offer of sale of the property in question, written to the Appellant by the 2nd Respondent. As highlighted by the learned counsel to the appellant, at page 312 of the printed records, the learned trial judge in holding that there was a valid contract between the Appellant and the 2nd respondent held thus:
???Having looked through Exhibit ‘E’, dated 6/2/01 from Union Dicon Salt Plc, I do agree with the counter claimant that indeed Exhibit ‘E’ is an acceptance of the offer made by counter claimant.
The paragraphs are clear, concise and specific. I hold that there is a valid contract between the counter claimant and Union Dicon Salt Plc. i.e The 2nd Defendant to counter claim.”
There was no appeal against the above finding of the trial Court. The respondents have not faulted the above holding but, have argued that since the appellant sought an alternative relief, the lower Court was right to have granted same. The respondents have not also questioned the validity of the contract between the Appellant and the 2nd respondent which is enforceable. There are in existence in this appeal, circumstances which make it equitable for the Court to have granted a decree of specific performance. There is no doubt that the appellant was in possession and occupation of the property at No. 3 Biaduo Street, South West Ikoyi, Lagos for more than ten years before the contract of sale in Exhibit ‘E’ dated 6th February, 2001. The respondents have not made out otherwise. All that was argued is that since the Appellant sought an alternative relief and got same, she cannot turn around to challenge the non granting of the relief of specific performance. I agree with the submissions of the learned counsel to the appellant that the property is located in a prime location of Lagos and it is impossible for the appellant to purchase an alternative property for the sum of N18,000,000.00 which was the agreed purchase price for the property. Also, with the grant of N10,000,000.00 (Ten Million Naira) damages in the alternative relief, would not be adequate for non sale of the property to the Appellant.

………………………….T………………………………..

See, AFROTEC TECH. SERV. (NIG) LTD VS. M.I.A. & SONS LTD (2000) 15 NWLR (PT.692) 730. In HELP (NIG) LIMITED VS. SILVER ANCHOR (NIGERIA) LIMITED (2006) LPELR-1361(SC), the Apex Court held that generally specific performance is a discretionary remedy. The discretion is judicial discretion and is exercised on well settled principles. His Lordship, Katsina-Alu, JSC (as he then was) at PP. 6 – 7, para E held that:
The jurisdiction to order specific performance is based on the existence of a valid, enforceable contract
The respondents have not made out that it would be impossible to enforce the contract of sale. The house is still in existence and it was not argued that it has changed form. The trial Court did not also find that an order of specific performance cannot be enforced. The trial Court simply chose the alternative relief sought. IN INTERNATIONAL TEXTILE INDUSTRIES (NIGERIA) LIMITED VS. DR. ADEREMI & ORS (1999) 8 NWLR (PT. 614) 268 the Supreme Court held that: To sue for specific performance is to assume that the contract is still subsisting and therefore to insist that it should be performed. That would mean that the plaintiff would not want it repudiated unless for any reason the Court was unable to aid him to enforce specific of it.
In the present case, the trial Court did not give any reason for its inability to make an order of specific performance after expressing its displeasure at the behavior of the second respondent concerning the breach of contract of sale, by selling the property to another after accepting the appellant’s offer to buy the same property. The fundamental rule is that specific performance would not be ordered if there is an absolute remedy at law in answer to the plaintiff’s claim, that is, where there would be adequate compensation by the common law remedy of damages but where as in the present case, the damages awarded in the alternative relief would be inadequate in terms of acquiring a similar property in the same area, the main relief ought to have been considered. The alternative relief would normally be resorted to where it is impossible to effect the performance of the main relief, in this case an order of specific performance. In UNIVERSAL VULCANIZING NIG. LTD. VS. IJESHA UNITED TRADING & TRANSPORT CO. LTD. & ORS (1992) SC, the Supreme Court as to when an order of specific performance would be made, per Kutigi, JSC (as he then was) at PP. 36 – 37, paras. D A held that:

………………………….U………………………………..

“A decree of specific performance is a decree issued by the Court which constrains a contracting party to do that which he has promised to do. It is a remedy for breach of contract provided by equity to meet those cases where the common law remedy of damages is inadequate (See BESWICK VS. BESWICK (1968) A.C. 58 H.L.). Thus where a vendor or lessor of land refuses to carry out his contract, an order of specific performance may be granted requiring him to execute the necessary conveyance or lease since one piece of land is not necessarily the same as another and damages may therefore not be an adequate remedy. But, a plaintiff will be left to his remedy at law if a decree of specific performance would inflict a hardship on the defendant. Consequently, the principle is that specific performance will generally not be granted where damages would be adequate remedy.
Hardship on the part of the respondents was not found by the trial Court and damages would not be adequate for the Appellant who resides at the property in question and also carries out her business on the same property for a long time. In determining whether specific performance should have been decreed or not, the competing interests of the parties should be considered and the fact that the contract entered into in Exhibit E could still be performed. It is noteworthy that the 2nd Respondent did not contest the claim at the lower Court. I hold that the trial Court was in error to have refused to grant an order of specific performance. The appellant’s first issue is resolved in her favour.

The appellant’s second issue is whether the learned trial judge did not fall into great error in granting the alternative relief of the Appellant without considering the principal relief for specific performance? The law is that where a claim or relief is in the alternative, the Court should first consider whether the main/principal relief ought to succeed before resorting to the consideration and grant of the alternative relief. It is after the Court has found that for any reason it cannot grant the principal claim that the alternative relief would be resorted to. On the alternative relief, see the Supreme Court decisions of THE M.V. “CAROLINE MAERSK” SISTER VESSEL TO M.V. CHRISTIAN MAERSK & ORS (2002) LPELR-3182 (SC) and AGIDIGBI VS. AGIDIGBI (1996) 6 NWLR (PT.454) 300, 313 where his Lordship, Ayoola, JSC held that:

………………………….V………………………………..

Where a claim by a party to a suit succeeds and the Court grants same, there will be no need to consider any alternative claim thereto”
In the present case, the appellant’s case in the lower Court succeeded. The trial Court ought to have first considered the main relief sought for specific performance of the contract of sale, then there would have been no need to consider the alternative relief. See, LAMURDE LOCAL GOVERNMENT VS. KARKA (2010) 10 NWLR (pt. 1203) 574 at 597. In ODUTOLA HOLDINGS LTD. VS. LADEJOBI (2006) 12 NWLR (PT. 994) 321 at 352 the Apex Court per Onoghen, JSC (as he then was) held that:
“It is settled law that once the main claim or relief succeeds there is no need to consider or grant an alternative relief – see, AGIDIGBI VS. AGIDIGBI (1996) 6 NWLR (PT.454) 300 AT 313.
The trial Court is duty bound to consider the principal relief claimed where there is enough evidence to support the grant of the principal relief, in such a case the alternative relief would not be considered. The alternative relief is usually resorted to where the principal relief is not supported by the evidence adduced. In the present appeal, it is clear and not in doubt that the trial Court found that the appellant as plaintiff proved her case but, the trial Court did not consider the grant of the main claim (the plaintiff’s case having succeeded) of specific performance but, instead decided to award damages for the breach of contract, page 313 – 314 of the printed records.
Alternative claims are usually considered and granted where the grant of the substantive claim is not possible or unjust. The 2nd respondent who did not defend the case at the lower Court did not show the impossibility of performance or show that it would be unjust. I am of the humble view that the lower Court was in error to have considered and granted the alternative relief without first considering the principal claim, it is perverse.

Having resolved the appellant’s two issues in her favour, I hold that the appeal is meritorious, I allow same. In consequence, the award of N10 Million (Ten Million Naira) as damages in favour of the counter claimant (appellant) against the 2nd Defendant (2nd Respondent) to the counter – claim for breach of contract of sale between the 2nd Defendant (2nd Respondent) to the counter – claim i.e. Union Dicon Salt Plc and the counter claimant is set aside. Instead, I hereby grant the order for SPECIFIC PERFORMANCE of the contract for the sale of No. 3 Biaduo Street, South West Ikoyi, Lagos between the counter-claimant and the 2nd Defendant (2nd Respondent).

I award costs of N100,000.00 (One Hundred Thousand Naira) against the 1st and 2nd Respondents.

MOJEED ADEKUNLE OWOADE, J.C.A.:Â I read in advance the judgments in Appeal Nos. CA/L/786/09 and CA/L/39M/11 delivered by my learned brother, CHIDI NWAOMA UWA. JCA.

I abide with the consequential orders and orders as to costs.

HAMMA AKAWU BARKA, J.C.A.: I agree.

Appearances:

O. O. Ogungbade, Esq. with him, Toyese Owoade, Esq. and O. O. Owotunmi, Esq. for CA/L/78609.

Ayo Adesanmi, Esq. with him, Omolade Adeyemi and Olayide Salami, Esq. for CA/L/39/11For Appellant(s)

O. O. Ogungbade, Esq. with him, Toyese Owoade, Esq. and O. O. Owotunmi, Esq. for the 1st Respondent in CA/L/39/1.

Ayo Adesanmi, Esq. with him, Omolade Adeyemi and Olayide Salami, Esq. for CA/L/786/09.

Felix Oyekaja, Esq. with him, Saratu Dan Abu for the 2nd Respondent in CA/L/39/11For Respondent(s)