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Judgment CMA-6-2019

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IN THE CHIEF MAGISTRATE’S COURT OF DELTA STATE OF NIGERIA
IN THE ASABA MAGISTERIAL DISTRICT
HOLDEN AT ASABA
BEFORE HIS WORSHIP NOBERT CHUKWUKA OKOLIE SENIOR MAGISTRATE GRADE I
SITTING ON THURSDAY THE 29TH DAY OF AUGUST, 2019
SUIT NO: CMA/6/2019
BETWEEN:
MR. JUDE UGBECHIE
----PLAINTIFF
AND
1. CHIEF INNOCENT OKOFU
2. MARANATHA CENTO NIG. LTD
----DEFENDANTS
JUDGMENT
The claim of the plaintiff in this suit is dated 5 th February, 2019 and filed same
date. The reliefs sought by the plaintiff against the defendants jointly and
severally are as follows:
1. The sum of N 283,400.00 (Two Hundred and Eighty Three Thousand, Four
Hundred Naira) to be paid to the plaintiff by the defendant whenever a tenant
rents and pays for the said apartment at No. 3 Lord’s Vine Close, Off DLA,
Asaba, Delta State in line with the Gentleman’s Agreement between the
plaintiff and the 1st defendant.
2. An order of perpetual injunction restraining the 1st defendant from making
fabricated and distorted complains and dragging the plaintiff to the police
over this matter which is civil and not criminal in nature.
3. The sum of N 100,000.00 (One Hundred Thousand Naira) only being cost of
this action.
The 1st Defendant on the 20th day of February 2019 who also represented the 2nd
Defendant at its alter ego pleaded not liable to the plaintiff’s claim and joined
issues with the plaintiff.
The plaintiff opened its case on the 12th day of March, 2019 testified as PW1 and
called one other witness who testified as PW2. The plaintiff tendered two exhibits
– Exhibits “A” and “B” while “A” is the receipt of payment of rent to the 1st
Defendant by the plaintiff, Exhibit “B” is the receipt of payment of professional
feels by the plaintiff to his Counsel.
The Defendants opened their defence on the 25th day of March 2019 wherein the
1st defendant testified in his defence as the DW1 and did not call any witness.
By consent of Counsel and the leave of Court, parties filed and exchanged written
addresses which they adopted on the 8th day of August 2019 wherein the suit was
adjourned to the 20th August 2019 for Judgment and subsequently to the 19th day
of August 2019 for Judgment.
In his written address dated not dated but filed on the 25th day of July, 2019 H. U.
Agala Esq of Counsel to the plaintiff, the plaintiff raised a sole issue for
determination to wit:
Whether the plaintiff is entitled to his claim against the Defendants? While the
defence filed this written address on the 11/07/2019 and raised four issues for
determination to wit:
1. Whether cause of action has arisen before the institution of this Court.
2. Whether there was a valid contract between the parties.
3. Whether the Defendants have breached any existing contract between the
parties.
4. Whether the plaintiff is entitled to reliefs sought.
The plaintiff’s Counsel subsequently filed and served the defence with a reply on
points of Law dated 6th August, 2019.
I have carefully read through the addresses filed and exchanged by both Counsel
as substituted in issue 4 raised by the defence Counsel, the Court will adopt the
four issues raised by the Defence Counsel with modifications.
The issues that this Court will consider in it’s just determination of this suit are:
1. Whether there was a valid agreement between the parties for the refund of the
rent paid by the plaintiff to the Defendant?
2. Whether the Defendants have breached that agreement or has intention to do
so?
3. Whether cause of action has arisen before the institution of this suit?
4. Whether the plaintiff entitled to the reliefs sought by him in this suit?
ON ISSUE ONE
Whether there was a valid agreement between the plaintiff and the Defendants
for the Defendants to refund the plaintiff the sum of money paid as rent.
The plaintiff and the Defendants are all in agreement on the fact that the plaintiff
paid the sum of N 283, 400.00 (Two Hundred and Eighty Three Thousand Four
Hundred Naira) to the 1st Defendant on the 9th of December 2017 as one year rent
with respect to three bedroom flat at No. 3 Lord’s Close, Off DLA Road, Asaba.
The PW2 Confirmed the payment and exhibit A is the said receipt, said to have
been issued by the Defendant evidencing the said payment.
The Defendant himself who testified as DW1 also identified Exhibit A as the
receipt he issued to the plaintiff to evidence the said payment of the sum of N
283, 400.00 (Two Hundred and Eighty Three Thousand Four Hundred Naira).
The position of the plaintiff and his witness who testified that the rent has not
commenced before January 2018 is that the said contract of rent between the
plaintiff and the 1st Defendant which was evidence by the receipt of the 2nd
Defendant issued to the plaintiff was frustrated by the need for the plaintiff to
relocate to Abuja on the 9th of December, 2017 which was communicated to the
1st Defendant on the 10th of December 2018.
Though the plaintiff did not tender any document to prove that he was actually
mobilized to a site in Abuja for a building project but from the totality of the
evidence before this Court there is nothing to show that the 1st Defendant
donsted the plaintiff as that time.
In fact the 1st Defendant said he congratulated the plaintiff based on the said
Abuja job offered him and prayed for him.
This is a cardinal rule of evidence in Section __________ of the Evidence Act 2011
that an admitted fact, need no further proof.
The seeming unwillingness of the 1st Defendant to refund the money paid by the
plaintiff to him is not based on the fact that he has any doubt that the plaintiff got
a job offer and was mobilized to site in Abuja.
Since the 1st Defendant believed the plaintiff at that time and agreed for a new
agreement whether to rent out the apartment and refund money or for the
plaintiff to do that for himself the fact remains that the said just contract of gain
has to be consent of parties admitted to have been frustrated and subsequently
varied.
The Court agrees with the plaintiff’s Counsel that the first contract was frustrated
and gave room to a new one.
See the case of AG Cross River State Vs AG Federation (2012) LPELR – 9335
(SUPREME COURT)
ARAKA Vs MOMIER CONSTRUCTION COMPANY (NIG) LIMITED (1978) ALL NLR
219 or 1978 6-7 (SC) page 7.
Where the Supreme Court held that an agreement between parties, lawfully
entered and which is in the Course of operation can be prematurely determined
owning to the occurrence of an interviewing event or change of circumstances so
fundamental as to be regarded by law both as sticking beyond what was
contemplated by the parties when they entered into the agreement.
I also agree with the verdict of the Supreme Court that the doctrine of frustration
applies to all categories of contract see also case of ARAKA Vs MOMIER
CONSTRUCTION COMPANY (NIG) LIMITED (1978) ALL NLR 219 or 1978 6-7 (SC)
page 7. In UBA Vs BTL INDUSTRIES LTD (2006) 12 SC 63.
The Supreme Court held that money paid under a frustrated contract, the payer
is entitled to recover the money.
What is an issue is whether there was an agreement for the refund of the said
amount of money evidenced by Exhibit A.
On the issue of the said refund agreement, the PW1 told the Court during his
evidence in chief that it was on the 9th of December 2017 that he was mobilized to
site for a building project in Abuja and he called the Agent who is the PW2 and
informed her of the development and that he will no longer stay in that flat that he
paid for. According to him, on the next day being the 10 th of December, 2017 the
PW1 and PW2 went to the 1st Defendant’s house and informed him of the
development and asked for a refund of the rent paid by the plaintiff and that the
1st Defendant congratulated him and told the PW1 that he has already started
spending the money for the renovation of the flat, that the (1 st Defendant) can no
longer refund the money at that time. He said he requested his account number
and said he will refund the rent to the PW1(plaintiff) whenever the flat is rented by
any person. The plaintiff told the Court that he agreed with the 1 st Defendant on
that and that the agreement was a verbal agreement in the presence of the PW2
and that after the agreement both of them left the 1st Defendant’s house.
Under cross-examination, the plaintiff told Court that the house he paid for was
not yet ready for his habitation as at the time he paid for the flat and that the 1 st
defendant told him that when the house is ready they will make an agreement and
he (plaintiff) will pack in. The plaintiff denied agreeing with the 1 st Defendant to
rent the flat out by himself to another person and recover the rent he paid to the
1st Defendant. He told Court that he never went to the said house again as these
was an agreement to the effect that the rent he paid will be refunded.
The PW2 Mrs. Cecilia Onwubanim a real property agent confirmed the above
piece of evidence and told the Court that she was present when the agreement of
refund of rent paid by the plaintiff to the 1 st Defendant was reached and that the
rent paid by the plaintiff to the 1st Defendant was to commence in January, 2018.
The 1st Defendant who testified as DW1 admitted that he was informed by the
plaintiff that he got a job in Abuja and will no longer live in the apartment rented
but that the conversation was through a telephone conversation and that it was
the plaintiff’s agent that came to his house to inform him of it and that he never
reached any agreement with the 1st plaintiff (PW1) to refund him his rent, rather
they agreed that the plaintiff will look for a tenant and fix in the flat and recover
his rent.
The 1st Defendant further informed the Court that it was about the 15th day of
February 2018 that the plaintiff informed him about the job he got in Abuja.
It is the 1st Defendant’s further evidence in chief that after the payment of the rent
by the plaintiff, the plaintiff took possession of the apartment immediately.
Under cross-examination the 1st Defendant told the Court that the plaintiff had the
keys to the apartment before he paid the rent for the apartment. He further told
the Court under further Cross-examination that he also promised to look for a
tenant that could occupy the flat so that the plaintiff can get his money back from
the tenant and not from him. The 1st Defendant finally told the Court that he will
not refund the plaintiff the said rent paid to him.
Upon a thorough evaluation of the above evidence led by the parties. I hold that
while I believe the evidence of the plaintiff which is less contradictory and which
evidence was confirmed by the PW2 that there was a substantive agreement
between the plaintiff and the 1st Defendant on the refund of the sum of N 283,
400.00 (Two Hundred and Eighty Three Thousand Four Hundred Naira) paid to
the 1st Defendant, back to the plaintiff, I do not believe the evidence of the
defence. That the agreement he had with the plaintiff is that the plaintiff should be
the person to put tenants in the apartment and recover his money back.
I therefore find in favour of the plaintiff that there was a parole agreement
between the 1st Defendant and the plaintiff for the 1st Defendant to refund the sum
of N 283, 400.00 (Two Hundred and Eighty Three Thousand Four Hundred Naira)
paid as rent by the said plaintiff to the 1st Defendant on the 4th of December 2017
with respect to a three bedroom flat apartment owned by the 1st Defendant which
house is at no. 3 Lord’s Vine Close, Off DLA Road, Asaba. Issue II is resolved in
favour of the plaintiff.
On issue two which borders on whether the defendants have breached the said
agreement or has intention to do so.
I will first of all state that there is no evidence to show that the 2nd Defendant was
involved in the rent transaction and agreements between the plaintiff and the 1 st
Defendant.
This is because the rent business did not occur in the business premises of the
2nd Defendant but in the personal house of the 1st Defendant. There is also no
evidence to show that the plaintiff at any time or the PW2 had the intention to deal
with the 2nd Defendant.
The rent was also not said to have been paid into the 2nd Defendant’s bank
account. The mere fact that the 1st Defendant issued the plaintiff a payment
receipt bearing the name of the 2nd Defendant without more is not enough to hold
that the 2nd Defendant was a party to the transaction or agreement. The 2nd
defendant ought not to be joined as a party to this suit.
On the part of the 1st Defendant based on the totality of the evidence led by the
plaintiff and his witness especially on how the plaintiff visited the 1 st Defendant’s
house and both the 1st Defendant’s wife and the 1st Defendant informed the
plaintiff that his rent had expired and that the 1st Defendant will not refund the
rent to the plaintiff which decision was re-stated by the 1st Defendant during his
Evidence in Chief, I hold that the 1st Defendant having not rented the said
apartment to any person from December 2017 till date has not breached his said
parole agreement to refund the rent paid by the plaintiff back to the said plaintiff.
The initial contract of rent between the plaintiff and the 1st Defendant having been
frustrated replaced by a subsequent agreement for the refund of the rent paid by
the plaintiff which the plaintiff has believed and has altered his position by not
putting the said apartment to use from the said time of payment till date, to the
point that the 1st Defendant admitted putting back his sign board to it, to signify to
potential accommodation seekers that the flat is vacant. I hold that the estant
agreement between the plaintiff and the Defendant is that of rent refund which as
pointed out earlier the Defendant has said he will no longer.
I hold that in the absence of the flat being let out to a tenant by 1 st Defendant
without refunding the said money to the plaintiff. The 1 st Defendant cannot be
said to have breached the agreement of refund but has clearly signified his
intention to do so.
Issue two is hereby resolved in favour of the plaintiff as the 1st Defendant has no
longer the intention to refund the said rent to the plaintiff.
ON ISSUE THREE: Which borders on whether a cause of action has arisen before
the institution of this suit?
It is the trite law that a cause of action means
A cause of action does not only arise in contract when the breach has occurred
but when a party notices an express resolve or intention on the part of the other
party to the contract to breach same.
It is therefore my view that the 1st Defendant having signified his express
intention not to refund the said rent as agreed, A cause of account has arisen for
which the plaintiff can seek redress in a Court of law, as done in this case for a
mandatory order to compel the 1st Defendant to fulfill his obligation to the
agreement he entered into with the plaintiff and refund the rent for total failure of
contract.
Issue three is resolved in favour of the plaintiff.
ON ISSUE IV which borders on whether the plaintiff is entitled to the reliefs
sought by him in this suit, I hold that from the totality of the evidence led by the
plaintiff in this case, the plaintiff has discharged the omens of proof imposed on
him by Section _________________ of the Evidence Act 2011 as to warrant this
Court to enter judgment in his favour as per his claims against the 1 st Defendant.
The 1st Defendant ought to be and is found liable to the claims against him by the
plaintiff.
I hereby order the;
1. 1st Defendant to pay the sum of N 283, 400.00 (Two Hundred and Eighty Three
Thousand Four Hundred Naira) to the plaintiff whenever a tenant rents and
pays for the said 3 bedroom flat apartment belonging to the 1 st Defendant and
situate at No. 3 Lord’s Close, Off DLA Road, Asaba, Delta State in line with the
agreement between him and the plaintiff.
2. 1st Defendant is perpetually restrained from making complaints or dragging the
plaintiff to the police over this issue of the refund of rent which is civil and not
criminal in nature in line with Section ________________ of the Administration of
Criminal Justice Law of Delta State 2016.
3. It is my further order on the 1st defendant to pay the sum of N 100, 000.00 (One
Hundred Thousand Naira) to the plaintiff being the cost of this action.
This is my judgment.
Nobert C. Okolie
Snr. Magistrate Gd I
30-08-2019.
*** Any kind of contract may be considered broken or breached once one party
refuses to perform as promised regardless of when performance is supposed to
take place this unconditional refusal is known as repudiation of contract.
Once one party to a contract indicates either through words or actions that it is
not going to perform its contract obligation, the other party can immediately
claim a breach of contract (failure to perform under the contract) and seek
remedy. This is sometimes called an anticipatory breach of contract SULE VS
IGERIA COTTO BOARD (1985) 2NWLR (Part 5) 15 at 19.