3PLR – LORETO NWAKASI V. CHRISTY CHIDI NWACHUKWU

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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LORETO NWAKASI

V.

CHRISTY CHIDI NWACHUKWU

COURT OF APPEAL

[ABUJA DIVISION]

3PLR/2003/133 (CA)

OTHER CITATIONS

ALL FWLR. (PT. 210) 1292

BEFORE THEIR LORDSHIPS:         

GEORGE ADESOLA OGUNTADE, JCA (Presided and delivered the leading judgment)

ZAINAB ADAMU BULKACHUWA, JCA

ALBERT GBADEBO ODUYEMI, JCA

 

BETWEEN:

LORETO NWAKASI (TRADING UNDER THE NAME AND ALIAS MAULORA MACHIE)

V.

CHRISTY CHIDI NWACHUKWU

 

REPRESENTATION

ISAAC OKPANACHI – for appellant

C.F. NWOKOCHA – for respondent

 

OTHER ISSUES

COMMERCIAL LAW – CONTRACT: – Claim of damages for Breach of Contract and loss of earnings – Privity of Contract – Duty of contract where plaintiff fails to prove right to maintain suit under a contract

EDUCATION AND LAW: – Establishment of educational center – Lease of teaching facility – Contractual issues – How treated by court

CHILDREN AND WOMEN LAW: – Women in Business – Husband and wife – Enforcement of contract executed in husband’s name – Proper way to initiate suit – Privity of contract – Whether a woman may successfully initiate a suit in her own name to enforce a contract executed in husband’s name

PRACTICE AND PROCEDURE – COURT: – Court of Appeal – Finding of fact made by trial Court – Attitude to invitation to interfere with the findings of fact of trial court based on preference of one claim over another rival one

PRACTICE AND PROCEDURE – JURISDICTION – High Court of the Federal Capital Territory – Rules of the Court – Whether has jurisdiction to non-suit a plaintiff

PRACTICE AND PROCEDURE – APPEAL: – Issues for Determination – Need for same to flow from Ground of Appeal – Duty of Court to strike out as incompetent any Issue for Determination not tied to any Ground of Appeal

 

 

 

MAIN JUDGEMENT

GEORGE ADESOLA OGUNTADE, JCA: (Delivering the leading judgment):

The appellant as the plaintiff before the Abuja High Court claimed from the respondent who was the defendant the sum of N3, 124,000.00 the breakdown of which is as follows:

“(a)    General damages for the breach of contract                     N1,500,000.00

(b)     Loss of earnings for two sessions calculated at N244,000.00 per term                                                                                                                   N1,464,000.00

(c)     Refund of advance rent paid                                            N160,000.00

Total                      N3,124,000.00

The parties filed and exchanged pleadings. The suit was heard by Muktar J. On 1/3/2000, the trial Judge in his judgment non-suited the plaintiff. The plaintiff was aggrieved by the judgment. He has brought this appeal against it. In his amended notice of appeal, he raised four grounds of appeal. Strangely however, he formulated eight issues for determination out of the said four grounds of appeal. The said issues in the appellant’s brief are these:

“i.      Whether or not the learned trial Judge has the power to non-suit a litigant under the High Court of the Federal Capital Territory (Civil Procedure) Rules, 1991.

1. Whether a court can non-suit a litigant without asking the parties to address it on the propriety of non-suiting first.

iii.      Whether or not the true identity of the appellant was still in doubt despite the amendment the court allowed on the 25th of November 1997.

1. Whether the legal personality of the business name is different from that of the owner of the business name.
2. Whether the learned trial Judge was right in rejecting the unchallenged evidence of the appellant and PW2 that Maulora Machie was the appellant’s business name.
3. Whether or not the learned trial Judge is right in holding that the appellant never disclosed to the respondent that she was going to use the premises as a school.

vii.     Whether or not exhibit ‘H’ was the agreement between the parties.

viii.    Whether or not the appellant is not entitled to her claim of damages for breach when she paid for two flats and was let only into one and had her business constantly disrupted by the respondent.”

The defendant before the lower court was also dissatisfied with the order of the lower court non-suiting the plaintiff. She felt that plaintiff’s suit ought to have been dismissed. From the main appeal, the defendant formulated the following five issues:

“i.      Whether or not the learned trial Judge has the power to non-suit a litigant under the High Court of the Federal Capital Territory (Civil Procedure) Rules 1991.

1. Whether the learned trial Judge was right in rejecting the unchallenged evidence of the appellant and PW2 that Maulora Machie was the appellant’s business name.

iii.      Whether or not the learned trial Judge is right in holding that the appellant never disclosed to the respondent that she was going to use the premises as a school.

1. Whether or not exhibit ‘H’ was the agreement between the parties.
2. Whether or not the appellant is not entitled to her claim of damages for breach when she paid for two flats and was let only into one and had her business constantly disrupted by the respondent.”

From her cross-appeal, the respondent formulated one issue, to wit;

“Whether the learned trial Judge would have dismissed the plaintiff’s suit instead of non-suiting same.”

In the respondent’s brief, an objection was raised to the appellant’s issues (ii) to (iv). It was submitted that all the said issues were formulated from one ground of appeal. Now, only the first ground of appeal in the appellant’s amended notice of appeal bore on the order of non-suit made by the lower court. The said ground of appeal reads:

“The learned trial Judge erred in law and in the facts when he non-suited the appellant on the grounds that she is not the one that the defendant contracted with.

Particulars

(a)     The learned trial Judge did not advert his mind to the amendment of the title of the suit namely the change of the name of the plaintiff from Maulora Machie to Loretta Nwakasi (trading under the name and alias of Maulora Machie) which he himself granted in his ruling of 25th November 1997.

(b)     The learned trial Judge completely ignored the fact that the appellant had confronted the defendant with the certificate of registration of Maulora Machie during cross-examination.

(c)     The learned trial Judge allowed himself be misled by the persistent lying of the respondent and failed to consider that the plaintiff said Machie was her surname before she got married.”

When appellant’s issues 1,2 and (4) are related to the first ground of appeal above, it becomes apparent that the said ground of appeal could not sustain the issues formulated as 1, 2 and 4. They bear no relationship. Whereas appellant’s issue one raises the question whether or not an order of non-suit could be made under the applicable court rules, the 1st ground of appeal does not cover the 2nd issue for determination which questions the propriety of a court making an order of non-suit without first hearing parties on it. The 3rd issue which speaks of the legal personality of the owner of a business name does not flow from the 1st ground of appeal or any other ground of appeal. The result is that issues 1, 2 and 3 do not flow from any ground of appeal. They ought to be struck out. See Modupe v. State (1988) 4 NWLR (Pt.87) 130 I accordingly strike them out.

I start a consideration of the appeal by considering briefly the facts leading to the dispute out of which this appeal arose. This will assist the appreciation of the issues as discussed in this judgment. The case made by the plaintiff in her pleading was that she reached an agreement with the defendant under which the defendant’s building consisting of two flats at 55A Tama Street, New Maitama, Kubwa village, Abuja was to be let to her for two years at the rent of N40,000.00 per flat per annum. The rents were to be paid in advance and the plaintiff was to use the flats as a school. The time was August, 1996 and the building had not been fully completed. It was agreed that if the plaintiff paid N160,000.00 representing the rents for two years, the defendant would apply the money to the completion of the building. The plaintiff paid the money in four installments. The defendant however, did not fully complete the building. The plaintiff was only able to occupy one of the flats. The result was that, of the 150 children who had been registered for plaintiff’s proposed school, only 28 could be accommodated. The plaintiff suffered pecuniary loss. She therefore brought her suit claiming as earlier stated.

The defendant on the other hand pleaded, that she let her building to a man by name Chukwuemeka Nwakasi and not the plaintiff. The building was let for residential purpose and not for a school. The defendant pleaded that her said tenant did not pay the rent of N160,000.00 in advance as agreed but rather in installments. The defendant was therefore able to work towards the completion of the building to the extent money was made available. The building was completed upon payment by the tenant of the balance of N40,000.00. The building was completed on 29/9/96. The tenant however refused to sign the tenancy agreement in respect of the remaining one flat.

It was on this state of pleadings that the case was tried by Muktar J. It is apparent from the state of pleadings that parties joined issues on the following matters:

(1)     Was plaintiff the tenant of the defendant?

(2)     Was the defendant aware the building was to be used as a school?

There were in addition to the above main questions other subordinate questions of fact, which needed to be resolved by evidence. For instance, was it because the person who was the defendant’s tenant failed to pay the agreed rents in advance that the building could not be completed timeously?

I now consider first the appellants 3rd and 5th issues. The appellant in her brief would appear to have assumed that it was the finding of the lower court that the identity of the defendant’s tenant was in doubt; and that this was so because the lower court had not borne in mind the fact that she had had her pleadings amended by the lower court made on 25/11/97. But a perusal of the lower court’s judgment at page 89 of the record reveals that the finding made by the lower court that the defendant contracted with a man and not the plaintiff, a woman, has nothing to do with the amendment of the name of the plaintiff by which the suit was brought. It was the defendant who raised it in her pleadings that she had no contract with the plaintiff. It was therefore irrelevant the name by which the plaintiff sued since the defendant successfully made the case that she contracted with a man. The lower court evaluated the evidence on the point thus:

“From the evidence of DW1 and exhibits ‘A’ ‘F’ ‘G’ and ‘H’, the parties to the agreement are Christy Chidi Nwachukwu and Maulora Machie. These exhibits indicate the former as ‘F’ meaning female being the landlady and the later as ‘M’ meaning male being the tenant. The defendant who wrote these documents and testified as DW2 said she indicated the sexes of both parties by inserting ‘M’ for male and ‘F’ for female. On the other hand however, the P.W.2 said the name of the plaintiff is Lauretta Monica Machie and that ‘M’ stood for Monica. This is a name that the plaintiff herself has not made mention of. Moreover it would have stated Lauretta M. Machie instead of Laurreta Machie with ‘M’ under inverted commas similar to the ‘F’ under inverted commas in form of the defendant’s name who is a female. The probabilities is more in favour of the defendant’s assertion that ‘M’ and ‘F’ stand for the sexes of the two parties and that she in fact contracted to let her two twin flats to the PW2 who is the plaintiff’s husband and not to the plaintiff. A contractual relationship will only be said to exist on proof of contractual intention. In the instant case, the rent agreement is shown to be intended to give rights and liabilities to only two persons one of which is a male i.e. Maulora Machie ‘M’ the tenant and the other Christy Chidi Nwachukwu ‘F’ a female as the landlady. The doctrine of privity means that a person cannot acquire rights or to be subjected to liabilities arising under a contract to which he is not a party.”

The trial Judge did not anywhere in the judgment appealed against or reject the evidence that Maulora Machie was the appellant’s name. The important question was whether it was a woman or man who traded under such business name. The lower court has the duty to consider the evidence as to whom the building was let. The court accepted the defendant’s version in preference to the plaintiff’s. That in my view is the end of the matter. This court has no duty to interfere with the findings of fact made by the trial Judge when it has not been shown that the finding is perverse or unsupported by evidence. In Chief Victor Woluchem and Others v. Chief Simon Gudi (1981) 5 S.C. 291 at 326, Nnamani J.S.C. observed:

“It is now settled that if there has been a proper appraisal of evidence by a trial court, a Court of Appeal ought not to embark on a fresh appraisal of the same evidence in order merely to arrive at a different conclusion from that reached by the trial court. Furthermore, if a court of trial unquestionably evaluates the evidence, then it is not the business of a Court of Appeal to substitute its own views for the views of the trial court ………”

Similarly in Akinloye and Anor. v. Eyiyola and Ors. (1968) NMLR 92, at 95, the Supreme Court held:

“Where a court of trial unquestionably evaluates the evidence and appraises the acts, it is not the business of a Court of Appeal to substitute its own views for the views of the trial court.”

See also Fabumiyi and Anor. v. Obaje and Anor. (1968) NMLR 242 at 247 and Balogun and Ors. v. Agboola (1974) 1 All NLR (Pt. 2) 66 at 73.

The result of the judicial authorities when applied to the facts of this case is that issues 3 and 5 must be decided against the appellant.

I now consider together issues (vi), (vii) and (viii). I discussed earlier the issues which parties joined on the pleadings. This included whether or not the plaintiff had made it known to the defendant that he required the building as a school. The plaintiff said she did. The defendant denied this. The matter therefore became an issue to be resolved by the evidence called.

At pages 89 to 90 of the record, the trial Judge in his judgment said:

“It is however pertinent to distinguish between the plaintiff’s contractual and tortuous claims. While the former could only be asserted after establishing the intention of the contracting parties, the later could be incurred not necessarily in a situation where contractual relationship exists. However the tortuous claim made by the plaintiff is in respect of loss of earnings owing to the defendant’s actions by resisting and [interfering] with the plaintiff’s school activities on some occasion. The plaintiff must prove that the plaintiff ought not have done what she did and that the plaintiff’s action had caused her financial loss or that she suffered damage of some sort.

From the facts of this case, the plaintiff has not adequately established the propriety of the establishment of her school as to entitle her to quiet possession of the rented premises and thereby render the defendant liable to pay damages by reason of trespass and interference resulting in financial loss on the part of the plaintiff.

From the foregoing reasons, I am inclined to accepting the arguments of the learned counsel for the defendant that the plaintiff has not established privity of contract with the defendant from the evidence so far laid before the court and the necessary intention of the contracting parties.”

Here again, the above finding is a rejection of the version given by the plaintiff. This court cannot interfere with the finding. Exhibit ‘H’ did not play any vital part in the case other than that the court looked at it in coming to its decision as to whether the person who dealt with the defendant in respect of building was a man or a woman. Following the findings of the lower court that the plaintiff was not the person to whom the defendant let her building, the claim for damages ought to have failed. Everything considered, this appeal ought to fail.

With respect to the cross-appeal, I only need to say that there is no provision in the High Court of the Federal Capital Territory (Civil Procedure) Rules 1991 for a non-suit. The plaintiff not having proved her case, the same ought to have been dismissed. See Omoregbe v. Lawani (1980) N.S.C.C. 164. The lower court has no power to have granted a non-suit.

In the final conclusion, this appeal fails and it is dismissed. The cross-appeal succeeds. It is allowed. The order of non-suit made by the lower court is set aside. In its place, I make an order dismissing plaintiff’s suit. I award N5000.00 cost to the defendant/respondent.

 

ZAINAB ADAMU BULKACHUWA, JCA:

I have read before now the draft of the judgment just delivered by my learned brother Oguntade, JCA. I agree with his reasoning and conclusions why this appeal must fail and the cross-appeal must succeed. I abide with all consequential orders therein including orders as to costs.

 

ALBERT GBADEBO ODUYEMI, JCA:

I have had the opportunity of reading in advance the judgment of my learned brother Oguntade, JCA.

I agree in its entirety with the reasoning and the conclusions contained in the judgment, which I adopt as mine.

For reasons contained in the said judgment, I too dismiss the appeal and allow the cross-appeal.

I award costs of N5,000.00 to the defendant/respondent.

 

CASES REFERRED TO IN THE JUDGMENT:

Akinloye v. Eyiyola (1968) NMLR 92.

Balogun v. Agboola (1974) 1 All NLR (Pt. 2) 66.

Fabumiyi v. Obaje (1968) NMLR 242.

Modupe v. State (1988) 4 NWLR (Pt.87) 130.

Omoregbe v. Lawani (1980) N.S.C.C. 164; (1980) 3-4 S.C 108.

Woluchem v. Gudi (1981) 5 S.C. 291.

LORETO NWAKASI

V.

CHRISTY CHIDI NWACHUKWU

COURT OF APPEAL

[ABUJA DIVISION]

3PLR/2003/133 (CA)

 

OTHER CITATIONS

ALL FWLR. (PT. 210) 1292

BEFORE THEIR LORDSHIPS:         

GEORGE ADESOLA OGUNTADE, JCA (Presided and delivered the leading judgment)

ZAINAB ADAMU BULKACHUWA, JCA

ALBERT GBADEBO ODUYEMI, JCA

 

BETWEEN:

LORETO NWAKASI (TRADING UNDER THE NAME AND ALIAS MAULORA MACHIE)

V.

CHRISTY CHIDI NWACHUKWU

 

REPRESENTATION

ISAAC OKPANACHI – for appellant

C.F. NWOKOCHA – for respondent

 

OTHER ISSUES

COMMERCIAL LAW – CONTRACT: – Claim of damages for Breach of Contract and loss of earnings – Privity of Contract – Duty of contract where plaintiff fails to prove right to maintain suit under a contract

EDUCATION AND LAW: – Establishment of educational center – Lease of teaching facility – Contractual issues – How treated by court

CHILDREN AND WOMEN LAW: – Women in Business – Husband and wife – Enforcement of contract executed in husband’s name – Proper way to initiate suit – Privity of contract – Whether a woman may successfully initiate a suit in her own name to enforce a contract executed in husband’s name

PRACTICE AND PROCEDURE – COURT: – Court of Appeal – Finding of fact made by trial Court – Attitude to invitation to interfere with the findings of fact of trial court based on preference of one claim over another rival one

PRACTICE AND PROCEDURE – JURISDICTION – High Court of the Federal Capital Territory – Rules of the Court – Whether has jurisdiction to non-suit a plaintiff

PRACTICE AND PROCEDURE – APPEAL: – Issues for Determination – Need for same to flow from Ground of Appeal – Duty of Court to strike out as incompetent any Issue for Determination not tied to any Ground of Appeal

 

 

 

MAIN JUDGEMENT

GEORGE ADESOLA OGUNTADE, JCA: (Delivering the leading judgment):

The appellant as the plaintiff before the Abuja High Court claimed from the respondent who was the defendant the sum of N3, 124,000.00 the breakdown of which is as follows:

“(a)    General damages for the breach of contract                     N1,500,000.00

(b)     Loss of earnings for two sessions calculated at N244,000.00 per term                                                                                                                   N1,464,000.00

(c)     Refund of advance rent paid                                            N160,000.00

Total                      N3,124,000.00

The parties filed and exchanged pleadings. The suit was heard by Muktar J. On 1/3/2000, the trial Judge in his judgment non-suited the plaintiff. The plaintiff was aggrieved by the judgment. He has brought this appeal against it. In his amended notice of appeal, he raised four grounds of appeal. Strangely however, he formulated eight issues for determination out of the said four grounds of appeal. The said issues in the appellant’s brief are these:

“i.      Whether or not the learned trial Judge has the power to non-suit a litigant under the High Court of the Federal Capital Territory (Civil Procedure) Rules, 1991.

1. Whether a court can non-suit a litigant without asking the parties to address it on the propriety of non-suiting first.

iii.      Whether or not the true identity of the appellant was still in doubt despite the amendment the court allowed on the 25th of November 1997.

1. Whether the legal personality of the business name is different from that of the owner of the business name.
2. Whether the learned trial Judge was right in rejecting the unchallenged evidence of the appellant and PW2 that Maulora Machie was the appellant’s business name.
3. Whether or not the learned trial Judge is right in holding that the appellant never disclosed to the respondent that she was going to use the premises as a school.

vii.     Whether or not exhibit ‘H’ was the agreement between the parties.

viii.    Whether or not the appellant is not entitled to her claim of damages for breach when she paid for two flats and was let only into one and had her business constantly disrupted by the respondent.”

The defendant before the lower court was also dissatisfied with the order of the lower court non-suiting the plaintiff. She felt that plaintiff’s suit ought to have been dismissed. From the main appeal, the defendant formulated the following five issues:

“i.      Whether or not the learned trial Judge has the power to non-suit a litigant under the High Court of the Federal Capital Territory (Civil Procedure) Rules 1991.

1. Whether the learned trial Judge was right in rejecting the unchallenged evidence of the appellant and PW2 that Maulora Machie was the appellant’s business name.

iii.      Whether or not the learned trial Judge is right in holding that the appellant never disclosed to the respondent that she was going to use the premises as a school.

1. Whether or not exhibit ‘H’ was the agreement between the parties.
2. Whether or not the appellant is not entitled to her claim of damages for breach when she paid for two flats and was let only into one and had her business constantly disrupted by the respondent.”

From her cross-appeal, the respondent formulated one issue, to wit;

“Whether the learned trial Judge would have dismissed the plaintiff’s suit instead of non-suiting same.”

In the respondent’s brief, an objection was raised to the appellant’s issues (ii) to (iv). It was submitted that all the said issues were formulated from one ground of appeal. Now, only the first ground of appeal in the appellant’s amended notice of appeal bore on the order of non-suit made by the lower court. The said ground of appeal reads:

“The learned trial Judge erred in law and in the facts when he non-suited the appellant on the grounds that she is not the one that the defendant contracted with.

Particulars

(a)     The learned trial Judge did not advert his mind to the amendment of the title of the suit namely the change of the name of the plaintiff from Maulora Machie to Loretta Nwakasi (trading under the name and alias of Maulora Machie) which he himself granted in his ruling of 25th November 1997.

(b)     The learned trial Judge completely ignored the fact that the appellant had confronted the defendant with the certificate of registration of Maulora Machie during cross-examination.

(c)     The learned trial Judge allowed himself be misled by the persistent lying of the respondent and failed to consider that the plaintiff said Machie was her surname before she got married.”

When appellant’s issues 1,2 and (4) are related to the first ground of appeal above, it becomes apparent that the said ground of appeal could not sustain the issues formulated as 1, 2 and 4. They bear no relationship. Whereas appellant’s issue one raises the question whether or not an order of non-suit could be made under the applicable court rules, the 1st ground of appeal does not cover the 2nd issue for determination which questions the propriety of a court making an order of non-suit without first hearing parties on it. The 3rd issue which speaks of the legal personality of the owner of a business name does not flow from the 1st ground of appeal or any other ground of appeal. The result is that issues 1, 2 and 3 do not flow from any ground of appeal. They ought to be struck out. See Modupe v. State (1988) 4 NWLR (Pt.87) 130 I accordingly strike them out.

I start a consideration of the appeal by considering briefly the facts leading to the dispute out of which this appeal arose. This will assist the appreciation of the issues as discussed in this judgment. The case made by the plaintiff in her pleading was that she reached an agreement with the defendant under which the defendant’s building consisting of two flats at 55A Tama Street, New Maitama, Kubwa village, Abuja was to be let to her for two years at the rent of N40,000.00 per flat per annum. The rents were to be paid in advance and the plaintiff was to use the flats as a school. The time was August, 1996 and the building had not been fully completed. It was agreed that if the plaintiff paid N160,000.00 representing the rents for two years, the defendant would apply the money to the completion of the building. The plaintiff paid the money in four installments. The defendant however, did not fully complete the building. The plaintiff was only able to occupy one of the flats. The result was that, of the 150 children who had been registered for plaintiff’s proposed school, only 28 could be accommodated. The plaintiff suffered pecuniary loss. She therefore brought her suit claiming as earlier stated.

The defendant on the other hand pleaded, that she let her building to a man by name Chukwuemeka Nwakasi and not the plaintiff. The building was let for residential purpose and not for a school. The defendant pleaded that her said tenant did not pay the rent of N160,000.00 in advance as agreed but rather in installments. The defendant was therefore able to work towards the completion of the building to the extent money was made available. The building was completed upon payment by the tenant of the balance of N40,000.00. The building was completed on 29/9/96. The tenant however refused to sign the tenancy agreement in respect of the remaining one flat.

It was on this state of pleadings that the case was tried by Muktar J. It is apparent from the state of pleadings that parties joined issues on the following matters:

(1)     Was plaintiff the tenant of the defendant?

(2)     Was the defendant aware the building was to be used as a school?

There were in addition to the above main questions other subordinate questions of fact, which needed to be resolved by evidence. For instance, was it because the person who was the defendant’s tenant failed to pay the agreed rents in advance that the building could not be completed timeously?

I now consider first the appellants 3rd and 5th issues. The appellant in her brief would appear to have assumed that it was the finding of the lower court that the identity of the defendant’s tenant was in doubt; and that this was so because the lower court had not borne in mind the fact that she had had her pleadings amended by the lower court made on 25/11/97. But a perusal of the lower court’s judgment at page 89 of the record reveals that the finding made by the lower court that the defendant contracted with a man and not the plaintiff, a woman, has nothing to do with the amendment of the name of the plaintiff by which the suit was brought. It was the defendant who raised it in her pleadings that she had no contract with the plaintiff. It was therefore irrelevant the name by which the plaintiff sued since the defendant successfully made the case that she contracted with a man. The lower court evaluated the evidence on the point thus:

“From the evidence of DW1 and exhibits ‘A’ ‘F’ ‘G’ and ‘H’, the parties to the agreement are Christy Chidi Nwachukwu and Maulora Machie. These exhibits indicate the former as ‘F’ meaning female being the landlady and the later as ‘M’ meaning male being the tenant. The defendant who wrote these documents and testified as DW2 said she indicated the sexes of both parties by inserting ‘M’ for male and ‘F’ for female. On the other hand however, the P.W.2 said the name of the plaintiff is Lauretta Monica Machie and that ‘M’ stood for Monica. This is a name that the plaintiff herself has not made mention of. Moreover it would have stated Lauretta M. Machie instead of Laurreta Machie with ‘M’ under inverted commas similar to the ‘F’ under inverted commas in form of the defendant’s name who is a female. The probabilities is more in favour of the defendant’s assertion that ‘M’ and ‘F’ stand for the sexes of the two parties and that she in fact contracted to let her two twin flats to the PW2 who is the plaintiff’s husband and not to the plaintiff. A contractual relationship will only be said to exist on proof of contractual intention. In the instant case, the rent agreement is shown to be intended to give rights and liabilities to only two persons one of which is a male i.e. Maulora Machie ‘M’ the tenant and the other Christy Chidi Nwachukwu ‘F’ a female as the landlady. The doctrine of privity means that a person cannot acquire rights or to be subjected to liabilities arising under a contract to which he is not a party.”

The trial Judge did not anywhere in the judgment appealed against or reject the evidence that Maulora Machie was the appellant’s name. The important question was whether it was a woman or man who traded under such business name. The lower court has the duty to consider the evidence as to whom the building was let. The court accepted the defendant’s version in preference to the plaintiff’s. That in my view is the end of the matter. This court has no duty to interfere with the findings of fact made by the trial Judge when it has not been shown that the finding is perverse or unsupported by evidence. In Chief Victor Woluchem and Others v. Chief Simon Gudi (1981) 5 S.C. 291 at 326, Nnamani J.S.C. observed:

“It is now settled that if there has been a proper appraisal of evidence by a trial court, a Court of Appeal ought not to embark on a fresh appraisal of the same evidence in order merely to arrive at a different conclusion from that reached by the trial court. Furthermore, if a court of trial unquestionably evaluates the evidence, then it is not the business of a Court of Appeal to substitute its own views for the views of the trial court ………”

Similarly in Akinloye and Anor. v. Eyiyola and Ors. (1968) NMLR 92, at 95, the Supreme Court held:

“Where a court of trial unquestionably evaluates the evidence and appraises the acts, it is not the business of a Court of Appeal to substitute its own views for the views of the trial court.”

See also Fabumiyi and Anor. v. Obaje and Anor. (1968) NMLR 242 at 247 and Balogun and Ors. v. Agboola (1974) 1 All NLR (Pt. 2) 66 at 73.

The result of the judicial authorities when applied to the facts of this case is that issues 3 and 5 must be decided against the appellant.

I now consider together issues (vi), (vii) and (viii). I discussed earlier the issues which parties joined on the pleadings. This included whether or not the plaintiff had made it known to the defendant that he required the building as a school. The plaintiff said she did. The defendant denied this. The matter therefore became an issue to be resolved by the evidence called.

At pages 89 to 90 of the record, the trial Judge in his judgment said:

“It is however pertinent to distinguish between the plaintiff’s contractual and tortuous claims. While the former could only be asserted after establishing the intention of the contracting parties, the later could be incurred not necessarily in a situation where contractual relationship exists. However the tortuous claim made by the plaintiff is in respect of loss of earnings owing to the defendant’s actions by resisting and [interfering] with the plaintiff’s school activities on some occasion. The plaintiff must prove that the plaintiff ought not have done what she did and that the plaintiff’s action had caused her financial loss or that she suffered damage of some sort.

From the facts of this case, the plaintiff has not adequately established the propriety of the establishment of her school as to entitle her to quiet possession of the rented premises and thereby render the defendant liable to pay damages by reason of trespass and interference resulting in financial loss on the part of the plaintiff.

From the foregoing reasons, I am inclined to accepting the arguments of the learned counsel for the defendant that the plaintiff has not established privity of contract with the defendant from the evidence so far laid before the court and the necessary intention of the contracting parties.”

Here again, the above finding is a rejection of the version given by the plaintiff. This court cannot interfere with the finding. Exhibit ‘H’ did not play any vital part in the case other than that the court looked at it in coming to its decision as to whether the person who dealt with the defendant in respect of building was a man or a woman. Following the findings of the lower court that the plaintiff was not the person to whom the defendant let her building, the claim for damages ought to have failed. Everything considered, this appeal ought to fail.

With respect to the cross-appeal, I only need to say that there is no provision in the High Court of the Federal Capital Territory (Civil Procedure) Rules 1991 for a non-suit. The plaintiff not having proved her case, the same ought to have been dismissed. See Omoregbe v. Lawani (1980) N.S.C.C. 164. The lower court has no power to have granted a non-suit.

In the final conclusion, this appeal fails and it is dismissed. The cross-appeal succeeds. It is allowed. The order of non-suit made by the lower court is set aside. In its place, I make an order dismissing plaintiff’s suit. I award N5000.00 cost to the defendant/respondent.

 

ZAINAB ADAMU BULKACHUWA, JCA:

I have read before now the draft of the judgment just delivered by my learned brother Oguntade, JCA. I agree with his reasoning and conclusions why this appeal must fail and the cross-appeal must succeed. I abide with all consequential orders therein including orders as to costs.

 

ALBERT GBADEBO ODUYEMI, JCA:

I have had the opportunity of reading in advance the judgment of my learned brother Oguntade, JCA.

I agree in its entirety with the reasoning and the conclusions contained in the judgment, which I adopt as mine.

For reasons contained in the said judgment, I too dismiss the appeal and allow the cross-appeal.

I award costs of N5,000.00 to the defendant/respondent.

 

CASES REFERRED TO IN THE JUDGMENT:

Akinloye v. Eyiyola (1968) NMLR 92.

Balogun v. Agboola (1974) 1 All NLR (Pt. 2) 66.

Fabumiyi v. Obaje (1968) NMLR 242.

Modupe v. State (1988) 4 NWLR (Pt.87) 130.

Omoregbe v. Lawani (1980) N.S.C.C. 164; (1980) 3-4 S.C 108.

Woluchem v. Gudi (1981) 5 S.C. 291.

LORETO NWAKASI

V.

CHRISTY CHIDI NWACHUKWU

COURT OF APPEAL

[ABUJA DIVISION]

3PLR/2003/133 (CA)

 

OTHER CITATIONS

ALL FWLR. (PT. 210) 1292

BEFORE THEIR LORDSHIPS:         

GEORGE ADESOLA OGUNTADE, JCA (Presided and delivered the leading judgment)

ZAINAB ADAMU BULKACHUWA, JCA

ALBERT GBADEBO ODUYEMI, JCA

 

BETWEEN:

LORETO NWAKASI (TRADING UNDER THE NAME AND ALIAS MAULORA MACHIE)

V.

CHRISTY CHIDI NWACHUKWU

 

REPRESENTATION

ISAAC OKPANACHI – for appellant

C.F. NWOKOCHA – for respondent

 

OTHER ISSUES

COMMERCIAL LAW – CONTRACT: – Claim of damages for Breach of Contract and loss of earnings – Privity of Contract – Duty of contract where plaintiff fails to prove right to maintain suit under a contract

EDUCATION AND LAW: – Establishment of educational center – Lease of teaching facility – Contractual issues – How treated by court

CHILDREN AND WOMEN LAW: – Women in Business – Husband and wife – Enforcement of contract executed in husband’s name – Proper way to initiate suit – Privity of contract – Whether a woman may successfully initiate a suit in her own name to enforce a contract executed in husband’s name

PRACTICE AND PROCEDURE – COURT: – Court of Appeal – Finding of fact made by trial Court – Attitude to invitation to interfere with the findings of fact of trial court based on preference of one claim over another rival one

PRACTICE AND PROCEDURE – JURISDICTION – High Court of the Federal Capital Territory – Rules of the Court – Whether has jurisdiction to non-suit a plaintiff

PRACTICE AND PROCEDURE – APPEAL: – Issues for Determination – Need for same to flow from Ground of Appeal – Duty of Court to strike out as incompetent any Issue for Determination not tied to any Ground of Appeal

 

 

 

MAIN JUDGEMENT

GEORGE ADESOLA OGUNTADE, JCA: (Delivering the leading judgment):

The appellant as the plaintiff before the Abuja High Court claimed from the respondent who was the defendant the sum of N3, 124,000.00 the breakdown of which is as follows:

“(a)    General damages for the breach of contract                     N1,500,000.00

(b)     Loss of earnings for two sessions calculated at N244,000.00 per term                                                                                                                   N1,464,000.00

(c)     Refund of advance rent paid                                            N160,000.00

Total                      N3,124,000.00

The parties filed and exchanged pleadings. The suit was heard by Muktar J. On 1/3/2000, the trial Judge in his judgment non-suited the plaintiff. The plaintiff was aggrieved by the judgment. He has brought this appeal against it. In his amended notice of appeal, he raised four grounds of appeal. Strangely however, he formulated eight issues for determination out of the said four grounds of appeal. The said issues in the appellant’s brief are these:

“i.      Whether or not the learned trial Judge has the power to non-suit a litigant under the High Court of the Federal Capital Territory (Civil Procedure) Rules, 1991.

1. Whether a court can non-suit a litigant without asking the parties to address it on the propriety of non-suiting first.

iii.      Whether or not the true identity of the appellant was still in doubt despite the amendment the court allowed on the 25th of November 1997.

1. Whether the legal personality of the business name is different from that of the owner of the business name.
2. Whether the learned trial Judge was right in rejecting the unchallenged evidence of the appellant and PW2 that Maulora Machie was the appellant’s business name.
3. Whether or not the learned trial Judge is right in holding that the appellant never disclosed to the respondent that she was going to use the premises as a school.

vii.     Whether or not exhibit ‘H’ was the agreement between the parties.

viii.    Whether or not the appellant is not entitled to her claim of damages for breach when she paid for two flats and was let only into one and had her business constantly disrupted by the respondent.”

The defendant before the lower court was also dissatisfied with the order of the lower court non-suiting the plaintiff. She felt that plaintiff’s suit ought to have been dismissed. From the main appeal, the defendant formulated the following five issues:

“i.      Whether or not the learned trial Judge has the power to non-suit a litigant under the High Court of the Federal Capital Territory (Civil Procedure) Rules 1991.

1. Whether the learned trial Judge was right in rejecting the unchallenged evidence of the appellant and PW2 that Maulora Machie was the appellant’s business name.

iii.      Whether or not the learned trial Judge is right in holding that the appellant never disclosed to the respondent that she was going to use the premises as a school.

1. Whether or not exhibit ‘H’ was the agreement between the parties.
2. Whether or not the appellant is not entitled to her claim of damages for breach when she paid for two flats and was let only into one and had her business constantly disrupted by the respondent.”

From her cross-appeal, the respondent formulated one issue, to wit;

“Whether the learned trial Judge would have dismissed the plaintiff’s suit instead of non-suiting same.”

In the respondent’s brief, an objection was raised to the appellant’s issues (ii) to (iv). It was submitted that all the said issues were formulated from one ground of appeal. Now, only the first ground of appeal in the appellant’s amended notice of appeal bore on the order of non-suit made by the lower court. The said ground of appeal reads:

“The learned trial Judge erred in law and in the facts when he non-suited the appellant on the grounds that she is not the one that the defendant contracted with.

Particulars

(a)     The learned trial Judge did not advert his mind to the amendment of the title of the suit namely the change of the name of the plaintiff from Maulora Machie to Loretta Nwakasi (trading under the name and alias of Maulora Machie) which he himself granted in his ruling of 25th November 1997.

(b)     The learned trial Judge completely ignored the fact that the appellant had confronted the defendant with the certificate of registration of Maulora Machie during cross-examination.

(c)     The learned trial Judge allowed himself be misled by the persistent lying of the respondent and failed to consider that the plaintiff said Machie was her surname before she got married.”

When appellant’s issues 1,2 and (4) are related to the first ground of appeal above, it becomes apparent that the said ground of appeal could not sustain the issues formulated as 1, 2 and 4. They bear no relationship. Whereas appellant’s issue one raises the question whether or not an order of non-suit could be made under the applicable court rules, the 1st ground of appeal does not cover the 2nd issue for determination which questions the propriety of a court making an order of non-suit without first hearing parties on it. The 3rd issue which speaks of the legal personality of the owner of a business name does not flow from the 1st ground of appeal or any other ground of appeal. The result is that issues 1, 2 and 3 do not flow from any ground of appeal. They ought to be struck out. See Modupe v. State (1988) 4 NWLR (Pt.87) 130 I accordingly strike them out.

I start a consideration of the appeal by considering briefly the facts leading to the dispute out of which this appeal arose. This will assist the appreciation of the issues as discussed in this judgment. The case made by the plaintiff in her pleading was that she reached an agreement with the defendant under which the defendant’s building consisting of two flats at 55A Tama Street, New Maitama, Kubwa village, Abuja was to be let to her for two years at the rent of N40,000.00 per flat per annum. The rents were to be paid in advance and the plaintiff was to use the flats as a school. The time was August, 1996 and the building had not been fully completed. It was agreed that if the plaintiff paid N160,000.00 representing the rents for two years, the defendant would apply the money to the completion of the building. The plaintiff paid the money in four installments. The defendant however, did not fully complete the building. The plaintiff was only able to occupy one of the flats. The result was that, of the 150 children who had been registered for plaintiff’s proposed school, only 28 could be accommodated. The plaintiff suffered pecuniary loss. She therefore brought her suit claiming as earlier stated.

The defendant on the other hand pleaded, that she let her building to a man by name Chukwuemeka Nwakasi and not the plaintiff. The building was let for residential purpose and not for a school. The defendant pleaded that her said tenant did not pay the rent of N160,000.00 in advance as agreed but rather in installments. The defendant was therefore able to work towards the completion of the building to the extent money was made available. The building was completed upon payment by the tenant of the balance of N40,000.00. The building was completed on 29/9/96. The tenant however refused to sign the tenancy agreement in respect of the remaining one flat.

It was on this state of pleadings that the case was tried by Muktar J. It is apparent from the state of pleadings that parties joined issues on the following matters:

(1)     Was plaintiff the tenant of the defendant?

(2)     Was the defendant aware the building was to be used as a school?

There were in addition to the above main questions other subordinate questions of fact, which needed to be resolved by evidence. For instance, was it because the person who was the defendant’s tenant failed to pay the agreed rents in advance that the building could not be completed timeously?

I now consider first the appellants 3rd and 5th issues. The appellant in her brief would appear to have assumed that it was the finding of the lower court that the identity of the defendant’s tenant was in doubt; and that this was so because the lower court had not borne in mind the fact that she had had her pleadings amended by the lower court made on 25/11/97. But a perusal of the lower court’s judgment at page 89 of the record reveals that the finding made by the lower court that the defendant contracted with a man and not the plaintiff, a woman, has nothing to do with the amendment of the name of the plaintiff by which the suit was brought. It was the defendant who raised it in her pleadings that she had no contract with the plaintiff. It was therefore irrelevant the name by which the plaintiff sued since the defendant successfully made the case that she contracted with a man. The lower court evaluated the evidence on the point thus:

“From the evidence of DW1 and exhibits ‘A’ ‘F’ ‘G’ and ‘H’, the parties to the agreement are Christy Chidi Nwachukwu and Maulora Machie. These exhibits indicate the former as ‘F’ meaning female being the landlady and the later as ‘M’ meaning male being the tenant. The defendant who wrote these documents and testified as DW2 said she indicated the sexes of both parties by inserting ‘M’ for male and ‘F’ for female. On the other hand however, the P.W.2 said the name of the plaintiff is Lauretta Monica Machie and that ‘M’ stood for Monica. This is a name that the plaintiff herself has not made mention of. Moreover it would have stated Lauretta M. Machie instead of Laurreta Machie with ‘M’ under inverted commas similar to the ‘F’ under inverted commas in form of the defendant’s name who is a female. The probabilities is more in favour of the defendant’s assertion that ‘M’ and ‘F’ stand for the sexes of the two parties and that she in fact contracted to let her two twin flats to the PW2 who is the plaintiff’s husband and not to the plaintiff. A contractual relationship will only be said to exist on proof of contractual intention. In the instant case, the rent agreement is shown to be intended to give rights and liabilities to only two persons one of which is a male i.e. Maulora Machie ‘M’ the tenant and the other Christy Chidi Nwachukwu ‘F’ a female as the landlady. The doctrine of privity means that a person cannot acquire rights or to be subjected to liabilities arising under a contract to which he is not a party.”

The trial Judge did not anywhere in the judgment appealed against or reject the evidence that Maulora Machie was the appellant’s name. The important question was whether it was a woman or man who traded under such business name. The lower court has the duty to consider the evidence as to whom the building was let. The court accepted the defendant’s version in preference to the plaintiff’s. That in my view is the end of the matter. This court has no duty to interfere with the findings of fact made by the trial Judge when it has not been shown that the finding is perverse or unsupported by evidence. In Chief Victor Woluchem and Others v. Chief Simon Gudi (1981) 5 S.C. 291 at 326, Nnamani J.S.C. observed:

“It is now settled that if there has been a proper appraisal of evidence by a trial court, a Court of Appeal ought not to embark on a fresh appraisal of the same evidence in order merely to arrive at a different conclusion from that reached by the trial court. Furthermore, if a court of trial unquestionably evaluates the evidence, then it is not the business of a Court of Appeal to substitute its own views for the views of the trial court ………”

Similarly in Akinloye and Anor. v. Eyiyola and Ors. (1968) NMLR 92, at 95, the Supreme Court held:

“Where a court of trial unquestionably evaluates the evidence and appraises the acts, it is not the business of a Court of Appeal to substitute its own views for the views of the trial court.”

See also Fabumiyi and Anor. v. Obaje and Anor. (1968) NMLR 242 at 247 and Balogun and Ors. v. Agboola (1974) 1 All NLR (Pt. 2) 66 at 73.

The result of the judicial authorities when applied to the facts of this case is that issues 3 and 5 must be decided against the appellant.

I now consider together issues (vi), (vii) and (viii). I discussed earlier the issues which parties joined on the pleadings. This included whether or not the plaintiff had made it known to the defendant that he required the building as a school. The plaintiff said she did. The defendant denied this. The matter therefore became an issue to be resolved by the evidence called.

At pages 89 to 90 of the record, the trial Judge in his judgment said:

“It is however pertinent to distinguish between the plaintiff’s contractual and tortuous claims. While the former could only be asserted after establishing the intention of the contracting parties, the later could be incurred not necessarily in a situation where contractual relationship exists. However the tortuous claim made by the plaintiff is in respect of loss of earnings owing to the defendant’s actions by resisting and [interfering] with the plaintiff’s school activities on some occasion. The plaintiff must prove that the plaintiff ought not have done what she did and that the plaintiff’s action had caused her financial loss or that she suffered damage of some sort.

From the facts of this case, the plaintiff has not adequately established the propriety of the establishment of her school as to entitle her to quiet possession of the rented premises and thereby render the defendant liable to pay damages by reason of trespass and interference resulting in financial loss on the part of the plaintiff.

From the foregoing reasons, I am inclined to accepting the arguments of the learned counsel for the defendant that the plaintiff has not established privity of contract with the defendant from the evidence so far laid before the court and the necessary intention of the contracting parties.”

Here again, the above finding is a rejection of the version given by the plaintiff. This court cannot interfere with the finding. Exhibit ‘H’ did not play any vital part in the case other than that the court looked at it in coming to its decision as to whether the person who dealt with the defendant in respect of building was a man or a woman. Following the findings of the lower court that the plaintiff was not the person to whom the defendant let her building, the claim for damages ought to have failed. Everything considered, this appeal ought to fail.

With respect to the cross-appeal, I only need to say that there is no provision in the High Court of the Federal Capital Territory (Civil Procedure) Rules 1991 for a non-suit. The plaintiff not having proved her case, the same ought to have been dismissed. See Omoregbe v. Lawani (1980) N.S.C.C. 164. The lower court has no power to have granted a non-suit.

In the final conclusion, this appeal fails and it is dismissed. The cross-appeal succeeds. It is allowed. The order of non-suit made by the lower court is set aside. In its place, I make an order dismissing plaintiff’s suit. I award N5000.00 cost to the defendant/respondent.

 

ZAINAB ADAMU BULKACHUWA, JCA:

I have read before now the draft of the judgment just delivered by my learned brother Oguntade, JCA. I agree with his reasoning and conclusions why this appeal must fail and the cross-appeal must succeed. I abide with all consequential orders therein including orders as to costs.

 

ALBERT GBADEBO ODUYEMI, JCA:

I have had the opportunity of reading in advance the judgment of my learned brother Oguntade, JCA.

I agree in its entirety with the reasoning and the conclusions contained in the judgment, which I adopt as mine.

For reasons contained in the said judgment, I too dismiss the appeal and allow the cross-appeal.

I award costs of N5,000.00 to the defendant/respondent.

 

CASES REFERRED TO IN THE JUDGMENT:

Akinloye v. Eyiyola (1968) NMLR 92.

Balogun v. Agboola (1974) 1 All NLR (Pt. 2) 66.

Fabumiyi v. Obaje (1968) NMLR 242.

Modupe v. State (1988) 4 NWLR (Pt.87) 130.

Omoregbe v. Lawani (1980) N.S.C.C. 164; (1980) 3-4 S.C 108.

Woluchem v. Gudi (1981) 5 S.C. 291.