ISSUES

Whether specific performance could be ordered against either of the two appellants?

What would the quantum of damages, if any, be should the respondent fail on specific performance?

FACTS

The first appellant was the lessor and the second appellant the lessee of a portion of land in accordance with a 90-years lease. The lease agreement contained a clause prohibiting sub-letting, unless the lessor's consent had been obtained, such consent not to be withheld unreasonably.

The lessee entered into an agreement of sub-lease with the respondent without obtaining the lessor's consent. The sub-lessee (the respondent) started building on the premises and continued to do so despite the absence of consent to sub-letting first having been obtained from the lessor (the first appellant). When the first appellant refused to consent to the sub-letting of the premises, the respondent sued the second appellant for specific performance (to complete the execution of the sub-lease and to obtain the necessary consent), and also specific performance from the first appellant (to give its consent). The respondent further sought an injunction to prevent the further demolishing of the erected buildings as well as damages.

The second appellant (lessee and sub-lessor) counter-claimed for recovery of possession, damages for nuisance and loss of income, as well as an injunction against trespassing. In mixing the parties' success with failure, the trial court dismissed the respondent's claims for specific performance, but awarded damages for the second appellant's breach of the sub-lease, as well as for the illegal demolition of his buildings and trespassing by the appellants. The respondent was further ordered to pay rent in respect of its (illegal) possession.

The Court of Appeal overturned much of the trial court's findings. It ordered specific performance against both appellants and also awarded damages to the respondent for rebuilding and trespass as well as an injunction against the appellants from interfering with the respondent's unfettered possession and enjoyment of the premises.

It was against these findings that the appellants now approached the Supreme Court. Apart from arguing that the orders for specific performance were erroneously made, the appellants also contended that there had been no privity of contract as between the respondent and the first appellant and the latter could accordingly not have been ordered to give its consent to the sub-lease agreement between the other two parties.

HELD (Unanimously allowing the appeal)

1.      On whether there had been privity of contract between the respondent and the first appellant

Common law dictates that only parties to a contract may normally enforce its terms. The first appellant had not been a party to the contract between the second appellant and the respondent. Thus, there had been no privity of contract between first appellant and the respondent. Olajide Olatawura, JSC, at pages 419 and 420.

2.      On whether specific performance by the first appellant could have been ordered

Mutuality is a sine qua non in an action for specific performance. Where privity of contract does not exist between two parties, there is no mutuality and an order for specific performance by the first appellant (to consent to the sub-lease) could accordingly not have been made. The first appellant should thus have been absolved from any claims between the second appellant and the respondent emanating from the contract between them. Olajide Olatawura, JSC, at pages 420 and 421.

3.      On whether specific performance by the second appellant could have been ordered

The second appellant was contractually obliged to obtain consent for sub-letting for the respondent. The second appellant failed to obtain such consent. As the terms of the lease between the appellants had not been complied with, the second appellant was clearly in breach thereof. To direct the second appellant to comply with an order for specific performance would thus enable the latter to remain in breach. No court of law should allow that. Accordingly, specific performance could not be ordered against the second appellant either. Olajide Olatawura, JSC, at page 420.

4.      On damages (for the costs of rebuilding the partially demolished buildings)

The respondent's evidence on the costs involved in rebuilding had not been challenged and must stand. It was accordingly correct for the trial court to award the damages it did to the respondent. Olajide Olatawura, JSC, at page 422.

5.      On recovery of possession.

As no valid consent had been obtained from the first appellant for the sub-letting, the respondent can no longer be in lawful possession of the property. The claim for recovery of possession must therefore succeed. Olajide Olatawura, JSC, at page 422.

6.      On the non-appearance of Counsel (obiter)

Where Counsel had twice in the matter of a trial; failed to appear when specifically invited by the court to address it on a matter affecting his client - such conduct was regarded as ".a calculated act of disrespect which borders on misconduct." Olajide Olatawura, JSC, at page 424.

E.O Olufote for first appellant

Demola Olowoyeye for second appellant

LA Adeniji for respondent

The following cases were referred to in this judgment:

Nigeria

African Petroleum Ltd v JK Owoduni (1991) 8 NWLR (Part 210) 391

Attorney-General (Federal) v Sode (1990) NWLR (Part 128) 500/519

Coker v Ajewole (1976) NSCC (Vol. 10) 429

Ikpeazu v African Continental Bank Limited (1965) NMLR 374/379

Kosile v Folarin (1989) 3 NWLR (Part 107) 1

Negbenebor v Negbenebor (1971-72) Vol 7 NSCC 200/205

Obimiami Brick & Stone (Nigeria) Ltd v African Continental Bank Ltd (1992) 3 NWLR 260/294

Savage v u Uwechia (1972) 2 SC 214 (1972) 2 ECSLR (Part 1) 252/257

Foreign

Beswick v Beswick 1968 AC 58/88

Dunlop Pneumatics Tyre Co Ltd v Selfridge & Co Ltd (1915) AC 847

Tweedle v Akinson

The following statutes were referred to on this judgment:

Nigeria

Evidence Act: S 148 (d)

Real Property Act 1845: S 5

The following Rules were referred to in this judgment:

Nigeria

Supreme Court Rules 1985 Order 6 rule 8(6); Order 8 rule 14(2)

The following books were referred to in this judgment:

Damages (13ed), McGregor at paragraph 709

Law of Contract (26ed), Hanson at part 491

Law of Real Property (5ed), Megarry and Wade at 632 - 643:741

Olatawura, JSC (Delivered the Leading Judgment):- The action, which has now culminated in this appeal, was originally between the respondent as plaintiff and the second appellant as defendant. It was on 3 October 1980 that the first appellant was joined as second defendant, before the joinder pleadings had been filed and exchanged. After the joinder, the writ of summons and the pleadings were amended. The first defendant by its amended statement of defence of 6 April 1981 set up a counterclaim. The plaintiff filed an amended statement of claim dated 27 April 1981 on 28 April 1981. The second defendant filed an amended statement of defence on 5 May 1981.

The facts relied on by the parties are strictly in accordance with their respective pleadings. I will refer to some of the paragraphs of their respective pleadings later. It is not disputed that the first defendant took a lease of a parcel or portion of land from the second defendant for a term of 90 years. This lease was admitted in evidence as Exhibit 'B'. It was an industrial lease dated 19 March 1974 and registered as No 75 at page 75 in Vol. 1448 of the Register of Deeds, kept at Lagos State Land Registry. The plaintiff later approached the first defendant for a sub-lease. Arrangement was reached and there was a document prepared as a sub-lease for a term of 40 years, but without the consent of the second defendant. It was this absence of consent that really led to the action, filed by the plaintiff. The document between the plaintiff and the first defendant was admitted in evidence as Exhibit 'E'. The plaintiff, before the consent was sought, had started building operations on the land granted it and which land forms part of Exhibit 'B'. It came to light during the trial that, though everything necessary to be done by the plaintiff was done, a Director of the first defendant's company wrote the second defendant, through Exhibit 'L' dated 27 June 1980, that the consent being sought by first defendant was not in the best interest of the Board of the company on the ground that the company, itself, would like further expansion of its workshop. The second defendant relied on this Exhibit 'L' and no consent was given. Consequently, the plaintiff issued a writ of summons, the amended writ of summons is as follows-:

"(i) A claim for an order of specific performance compelling the first defendant to complete the execution (including obtaining the necessary consent) of the sub-lease or agreement for a sub-lease as drawn up between the plaintiff and the first defendant in January, 1979.

(ii) An order of specific performance compelling the second defendant to give its consent, as required under clause 2 (f ) of the lease dated 19 March 1974 between the first and second defendant, to the sub-lease as or agreement for a Sublease between the first defendant and the plaintiff.

(iii) an order of perpetual injunction restraining the first and/or second defendants by themselves, their servants or agents or otherwise, howsoever from further demolishing all or any of the building on the said land, or molesting, dispossessing or in any other manner howsoever, interfering with the peaceful enjoyment and use of the said buildings of the said land by the plaintiffs or their servants or agents, pending the final determination of this action.

(iv) N643 314.40 jointly and severally from the first and second defendants, being special and general damages for trespass and for the illegal and unlawful demolition on 17 December 1979 of the plaintiff's buildings on the land covered by the above sub-lease or agreement for a sub-lease and also, for conspiracy between the first and second defendants to induce a breach of the plaintiff's agreement with the first defendant. There was an amended statement of claim dated 27 April 1981 on which the plaintiff sought to prove his case (sic)."

I will at this stage refer to the counterclaim filed by the first defendant. It is as follows:-"Counterclaim

1.      The first defendant repeats paragraphs 1-31 of its amended statement of defence.

2.      The first defendant claims;

(i) Recovery of possession of the area of 871.942 square metres in its premises occupied by the plaintiff's trespasser at 29 Industrial Avenue, Ilupeju Lagos State.

(ii) Special and general damages for nuisance and loss of customers and income, as a result of the plaintiff's running a liquor bar, lodgings, brothel and iron bending factory from January 1979 to 31 March 1981.

(iii) Loss of income at the rate of N2,000 a month from 1 April 1981 until judgment is given.

(iv) The further sum of N2,500 a month until possession is given.

(v) An injunction restraining the plaintiff from further trespass on the first defendant's premises at 29 Industrial Avenue Ilupeju, Lagos State."

Evidence was led by all the parties. After the addresses and submissions by the learned Counsel, the learned trial Judge Ejiwunmi J (as he then was) gave judgment in favour of the plaintiff on some parts of the plaintiff's claim and gave possession of the land to the first defendant. In view of the conclusion reached by the Court of Appeal, it is better to quote the Learned Judge's conclusions verbatim et literatim:-

"(1)    The plaintiff's claim for an order of specific performance against the first defendant for reasons already given, having failed, is hereby dismissed. The plaintiff is, however, entitled to damages in view of my finding that the first defendant had breached his obligation with the plaintiff in respect of the agreement for the sub-lease.

(2)     The plaintiff's claim for an order of specific performance for reasons already given, having failed, is hereby dismissed.

(3)     The plaintiff succeeds against the second defendant above, under the claim for damages, the defendants, jointly and severally, for trespass and the illegal demolition of the plaintiff's buildings on 17 December 1979.

(4)     The claim for conspiracy for inducing a breach of the plaintiff's agreement with the first defendant, however, fails and it is hereby dismissed.

(5)     The first defendant's counterclaim succeeds in respect of the claim for possession and the plaintiff, being a tenant in possession, howbeit illegally, shall pay rent for the occupation to the first defendant for as long as he is in possession thereof.

(6)     The other claims set up by the first defendant in the counterclaim are all dismissed for reasons given in their entirety.

Finally the following shall be the orders of the Court:-

(1)     In respect of the claim in trespass, the second defendant shall pay the plaintiff damages in the sum of N10,000. No award is made in respect of any of the items in the claim for special damages, for reasons already given.

(2)     The first defendant shall pay to the plaintiff the sum of N3,025.68k being for the breach of the agreement for the sub-lease.

(3)     The plaintiff shall pay the sum of N2,500 a month as rent to the first defendant, for as long as he is in possession and this shall be the judgment of this Court."

The plaintiff appealed against the judgment to the Court of Appeal. On 8 December 1986, the Court of Appeal in a unanimous decision allowed the appeal, set aside the judgment of the trial Court and awarded:-

(i) N99,279 as damages for rebuilding the buildings destroyed by the second defendant.

(ii) N10,000 as damages for trespass committed by the second defendant.

In addition, the lower court made the following orders:-

(1)     Order of specific performance against first respondent to complete execution of the draft lease attached to the statement of claim as Exhibit 'A' and for second respondent to give its consent to the sub-lease.

(2)     Injunction against both first and second respondents, their servants and agents from interfering with appellant's possession and enjoyment of the demised premises.

The present appellants before us were dissatisfied with the decision of the lower court and have now appealed to this Court on a number of grounds. Briefs were filed by all the parties.

The first appellant, in its brief, raised the following issues:-

1.      Were the alleged looting and destruction of the plaintiff/respondent's property, repairs to his buildings, loss of income and of goodwill proved, as its witness was not cross-examined on these issues and the witness no more than mentioned them and when in fact the defendants denied the allegations in their pleadings and also gave evidence to controvert these allegations?

2.      Would the conduct of the plaintiff/respondent and the terms of the head lease between the defendant/respondent and the appellant and of the sub-lease between the plaintiff/respondent and the defendant/respondent and the development embarked upon by the defendant/respondent justify an order of specific performance compelling the defendant/respondent to complete execution of the sub-lease agreement as drawn up in January 1979 and

3.      Would this same conduct justify an order for the appellant to give its consent to the sub-lease between the defendant/respondent and the plaintiff/respondent?

The second appellant raised these issues:-

i. Was the Court of Appeal right to have granted the claim for an order for specific performance when it found that the transaction between the plaintiff/respondent and the first defendant/appellant required the consent of the second defendant/appellant?

ii. Was the Court of Appeal right to have ordered the second defendant/appellant to give its consent to the transaction between the plaintiff/respondent and the first defendant/appellant when the Court of Appeal itself held that there was no privity of contract as between the plaintiff/respondent and the second defendant/appellant and after the time the first defendant/appellant had already indicated an intention to repudiate the agreement which is still subject to a consent?

iii. Was the Court of Appeal right to have granted the claims for special damages on the evidence, which the Court of Appeal indisputably agreed were scanty, vague and not detailed?

iv. Whether the Court of Appeal was right to award the special damages of N99,279.18k and N20,000 without indicating whether the first appellant alone, or both defendants are jointly and severally liable when the Court of Appeal did not make any specific finding contrary to that of the trial court that only the first appellant is responsible for trespass and illegal demolition of the respondent's buildings?

v. Was the Court of Appeal right to have refused to order the recovery of the premises, made in favour of the second appellant by the trial court?

vi. Was the Court of Appeal right to have thrown the order of the trial court for payment of N2,500 per month to the second appellant by the respondent for the use and occupation of the premises overboard?

These two sets of issues arose from the grounds of appeal.

The respondent, in its brief, has raised two issues for determination; they are as follows:-

i. Whether having regard to evidence led at the trial, the Court of Appeal was right in ordering specific performance of the sub-lease agreement between the respondent and the second appellant and also the consent of first appellant to the transaction?

ii. Whether the learned Justices of the Court of Appeal were right in granting the respondent's claim for special damages having regard to the evidence led in support of same?

The appeal first came before us on 2 March 1992, the learned Counsel for the first appellant was absent, notwithstanding the fact that he was in court on 9 September 1991 when the appeal was given an accelerated hearing and fixed for 2 March 1992. We exercised our powers under Order 6 Rule 8(6) of Supreme Court Rules 1985 (as amended) and proceeded to hear oral submission made on behalf of the second appellant and the respondent.

In his oral submissions, Mr Olowoyeye, after adopting his brief, referred to the judgment of the Court of Appeal where the court held there was no privity of contract between the first appellant and the respondent. Learned Counsel referred to the covenant in Exhibit 'B' that there could be no assignment without the consent of the first appellant. Learned Counsel referred to the Law of Real Property, 5ed, by Megarry and Wade pages 632 - 643:741 and submitted that there was only a contract between the second appellant and the respondent to grant a lease. Consequently, learned Counsel submitted the lower court was wrong to have granted specific performance against the second appellant. Learned Counsel agreed that the second appellant induced the breach because of the competition in trade by respondent. He finally urged that the appeal be allowed.

In his own reply, Mr Adeniji, the learned Counsel for the respondent, after adopting his brief, referred to pages 339 and 341 of the record of appeal and agreed there is no privity of contract but privity of estate. He submitted there was collusion between first and second appellant for not granting the consent. He relied on Attorney-General (Federal) v Sode (1990) 1 NWLR (Part 128) 500/519. On the issue of damages, learned Counsel relied on paragraphs 8, 12 and 14 of the amended statement of claim and that on the evidence led there was no cross-examination. On the issue of special damages he relied on Kosile v Folarin (1989) 3 NWLR (Part 107) 1. He urged that the appeal be dismissed. In his own reply, Mr Olowoyeye pointed out that the second appellant was found liable for breach of contract and cited African Petroleum Ltd v JK Owoduni (1991) 8 NWLR (Part 210) 391.

After we had adjourned for judgment, Counsel was recalled to address us on two issues:-1.         Whether general damages can be awarded in lieu of specific performance?

2.      If yes, if the award by the trial Judge is sufficient.

When the Court re-assembled again, despite the fact that hearing notice was issued on Mr Olufote, for the first appellant, he was again not present.

In his submission, Mr Olowoyeye submitted that specific performance is an equitable remedy granted in circumstances where equity regards damages an inadequate compensation of where the circumstances justify the intervention of equity to compel a contracting party to act or perform according to the terms already agreed upon by them. Learned Counsel referred to Hanson Law of Contract, 26ed., part 491 and Savage v u Uwechia (1972) 2 SC 214 (1972) 2 ECSLR (Part 1) 252 at 257. McGregor on Damages 13ed., paragraph 709. Counsel pointed out that the arrears were paid by the respondent. He further submitted that it is not competent for a third party to seek to enforce the right between two parties, except it is assigned. On damages, learned Counsel pointed out that since the plaintiff failed to tender the valuation report in respect of the buildings, the court should invoke Section 148(d) of the Evidence Act.

Mr Adeniji, the learned Counsel for respondent, submitted that their right to complain was based on the fact that the second appellant was transferring an interest it has for the period of the sub-lease and that by that act, the respondent stepped into the shoes of the second appellant. Learned Counsel regarded that interest as a benefit that runs with the land and consequently there will be privity of estate between the second appellant and the respondent.

On damages, learned Counsel conceded that the damages awarded by the lower court were inadequate and that the respondent is entitled to consequential damages. It was his submission that the damages awarded by the trial court were not in lieu of specific performance. He finally asked that the court should give equitable relief against the appellant.

In his reply, Mr Olowoyeye maintained that there is no cross appeal against the finding of the Court of Appeal, that there is neither privity of contract nor privity of estate. He referred to paragraph 709 of McGregor on Damages.

On specific performance, learned Counsel repeated his earlier submission that there can be no specific performance against the second appellant. He agreed that damages will be enough compensation and that the plaintiff is entitled to more than the amount awarded by the trial court.

All the issues raised by the parties can be dealt with adequately under two relevant issues in view of the claim, the evidence and the findings of the trial court and the lower court. In my view they are:-

(1)     Can specific performance be ordered against either party i.e. the appellants in this case?

(2)     What is the measure or amount of damages, if any, that can be awarded should the respondent fail on specific performance?

There is no doubt and it is agreed that the first appellant leased a parcel of land on which the buildings, partly demolished, forms a part, Exhibit 'B' i.e. the lease of contract contains a relevant covenant which is basic to the success of the claim for specific performance. It is not also in dispute that the respondent was neither a party to Exhibit 'B' nor a privy. The second appellant purported to sub-let part of the land to the respondent. The conditions under which the first appellant can do so are clearly stated in Exhibit 'B', to be:-

"2,     The lessee covenants with the lessor as follows:-

(f )    Not to sell, sublet, assign or part with the demised land without the previous written consent of the lessor, which consent shall not be unreasonably withheld."

In other words, before any enforceable agreement between the lessee and a third party is reached as to sub-letting part of that demised premises, there must have been a previous consent of the lessor. If the lessor refuses, there will be a determination whether the refusal is unreasonably withheld.

The second appellant appreciated this issue of prior consent as basic to any sublease. This is shown clearly in the letter dated 18 June 1979 tendered and admitted as Exhibit 'D', addressed to the first appellant. It reads:-

"Dear sir,

Application to Sub-let Portion of Plot J, Block I Ilupeju Industrial Scheme

In accordance with clause 2 (f) of the Lease agreement dated 19 March 1974, we wish to apply for your written consent as lessor to sub-let a portion of the above plot measuring only 871.942 square metres to an indigenous company stated below.

Clause 2 (f) reads as follows:-

of the Lessee 'Not to sell, sub-let, assign or part with the demised land without the previous written consent of the lessor, which consent shall not be unreasonably withheld.'

The sub-lease agreement with the indigenous company (as sub-lessee) is attached hereto.

Accordingly, we shall appreciate you giving your written consent to enable us to act as stated above.

Thanks in advance for your kind co-operation.

Yours faithfully,

for: Roadside Engineering and Foundary Limited.

Sgd. E.A.Soteye

Director.

CC: The Managing Director,

Nigerian Land and Sea Foods Co Ltd,

42A Adekoya Square, Anthony Village,

P.M.B. 1156, Oshodi, Lagos State."

The sub-lease i.e. Exhibit 'E' in respect of which consent was sought is dated 15 June 1979 and duly signed by the parties to Exhibit 'E' i.e. the second appellant and the respondent.

It will be appropriate to mention at this stage, the first appellant, though aware of the proposed lease, did not, at any time, give its consent as a Director in second appellant company. One Mr Animashaun wrote Exhibit 'L', objecting to the proposed consent. In paragraphs 4, 5, 6, 7, 8, 9, 10 - 13 of the amended statement of claim the plaintiff averred as follows:-

"5.     Clause 2 (f ) of the lease above recited provides, that the first defendant shall not sell, sub-let, assign or part with demised land without the previous written consent of the defendant, which consent shall not be unreasonably withheld.

6.      In January 1979, the first defendant agreed to sub-let to the plaintiff, a portion of the land covered by the lease dated 19 March 1974 which portion is clearly delineated in Plan No. NSS 47/79L of 31 January 1979 and attached to the deed of sub-lease attached as Annexure A to this statement of claim.

7.      A deed of sub-lease (Annexure A) was in January 1979, duly prepared and executed between the plaintiff and the first defendant which instrument was forwarded to the second defendant by the first defendant on 18 June 1979 reference LS/DPC/2KJ/25/S. 117/RAA/DE for its written consent.

8.      The plaintiff, having paid rent vide receipt No. 1069, was on 26 February 1979, let into possession of the portion of plot J Block 1 sub-let to it by the first defendant whereupon the plaintiff caused building plans of the proposed development of the said portion to be prepared which plans were forwarded to and received by the second defendant for its approval.

9.      On 1 August 1979, the plaintiff was informed by the first defendant that action on the application for consent referred to in paragraph 7 above was stayed by the second defendant for non-payment of ground rent by the first defendant which rent was eventually settled on 5 October 1979 from payments made to the first defendant by the plaintiff specifically for the purpose. The plaintiff will, at the trial, rely on letters exchanged between the first and second defendants dated 1 August 1979, 25 August 1979 and 5 October 1979 together with receipt No.1180 of 3 September 1979 issued to the plaintiff by the first defendant.

10.     In breach of agreement reached with the first defendant is deposed to in paragraphs 6 - 8 above, the Managing Director of the first defendant, together with some of their Directors acting in concert with officials of the second defendant, prevented the processing and the issuance of letter of consent sent by the second defendant. The plaintiff will, at the trial, rely on the letter written by one of the Directors of the first defendant, A. Idris Animashaun, dated 27 June 1980.

11.     In pursuance of the conspiracy above referred to, first defendant caused the second defendant to serve notice of illegal occupation (dated 16 November 1979, 6 December 1979) on the plaintiff which notices the plaintiff will contend are illegal, null and void.

12.     The first and second defendants, acting in concert, trespassed on the plaintiff's property on 17 December and demolished part of the plaintiff's buildings and the workers looted the plaintiff's belongings (including cash) in the demolished buildings. The second defendant threatened further demolition of the plaintiff's properties as per their letter of 18 August 1980.

13.     The first defendant has refused to complete the execution of the lease and/or agreement referred to above, while the second defendant has unreasonably withheld its consent to the said lease and/or agreement."

The first appellant (second defendant at the High Court) averred in paragraphs 4, 5, 6, 7, 8, 10, 11, 12, 13 of the amended statement of defence as follows:-

"4.     The second defendant denies paragraphs 8, 10, 11, 12, 13, 14 and 15 of the plaintiff's statement of claim.

5.      The second defendant in answer to paragraph 8 of the statement of claim avers that the plaintiff is not known to the corporation as regards Plot J, Block I, Ilupeju Industrial Estate and could therefore have not in their possession an approved plan. The second defendant therefore puts the plaintiff to the strictest proof thereof.

6.      The second defendant also avers that the plaintiff has constructed a hotel on these premises contrary to the terms as regards user in the lease agreement between the first defendant and the second defendant dated 19 March 1974 and Registered as No. 75, at page 75 in Vol. 1448 of the Land Registry, Lagos. The second defendant will rely on this document at the trial of this action.

7.      The second defendant avers that it was restrained from giving consent on the request of the first defendant on the strength of a letter received from one of the Directors of the first defendant informing the second defendant that the Board of the first defendant had not resolved to sub-let the premises to the plaintiff. A letter dated 27 June 1980 written to the second defendant by A. Idris Animashaun will be relied on at the trial of this action.

8.      That in the light of this letter, the second defendant replied the first defendant Managing Director requesting for an extract from the resolution of the Board of Directors to support the application for consent. That this letter was dated 14 August 1980 and will be relied upon at the trial of this action.

9.      The second defendant further avers in answer to paragraph 9 of the statement of claim that the payment of ground rent referred to was made to the second defendant by the first defendant under cover a letter dated 5 October 1979 and signed by the Managing Director of the first defendant. The second defendant will rely on this letter at the trial of this action.

10.     The second defendant denies any conspiracy whatsoever with the first defendant as alleged in paragraphs 10 and 11 of the statement of claim and puts the plaintiff to the strict proof thereof.

11.     The second defendant avers that notice of illegal occupation was served on the plaintiff because they did not have an approved plan for the buildings erected on the site and the second defendant will contend at the trial of this action that the said buildings are illegal structures.

12.     The second defendant in answer to paragraph 12 of the statement of claim denies the allegation that its workers looted the plaintiff's belongings including cash in their buildings and puts the plaintiff to the strictest proof thereof.

13.     The second defendant avers that it has not unreasonably withheld its consent to the purported sub lease to the plaintiff for a term of 40 (FORTY) years and says that in accordance with its averment in paragraph 7 above it had no choice but to stay action in the light of the information brought to its attention."

The second appellant (first defendant at the High Court) relies on the absence of consent and averred in paragraphs 6, 11, 13 as follows:-

"6.     With further reference to paragraph 5 of this Defence the first defendant agreed to sub-let a portion of its premises at 29 Industrial Avenue, Ilupeju to the plaintiff, subject to consent of the defendant's lessor, the Lagos State Development and Property Corporation (LSDPC). The plaintiff was informed of this condition but Mr Umukoro who presented himself as the plaintiff's Managing Director insisted he could go ahead with his business in the premises pending the grant of the LSDPC's consent which he said he would easily obtain as he knew the officials concerned and the staff that matters in the LSDPC.

11.     The defendant admits that it was in arrears of N1,525.68 rent to LSDPC and one of the conditions for giving consent to sub-let or deal with the property was the payment of all outstanding arrears. The plaintiff was so much in a hurry to obtain the LSDPC consent that it paid the said sum of N1,525.68 as alleged as its second year's rent of N1,500 and N25.68 in addition to a clerk in the office of the first defendant and at a time when the Managing Director Chief EA Soteye was outside the country in the United States.

13.     With further reference to paragraph 12 of this defence, the first defendant's application to the LSDPC for consent to sub-let had not and has not yet been given, before the plaintiff proceeded to build the two houses which are permanent structures and, the defendant later understood, without an approved plan."

In treating the issue of consent the learned trial Judge observed:-

"It is therefore clear from this letter that the plaintiff clearly, without waiting for the second defendant's consent, had planned to build permanent buildings on the site demised and had in fact built such structures as were given in evidence by the plaintiff."

The evidence led justified this observation. Is there any privity of contract between the first appellant and the respondent? The answer is no. Privity of contract is a common law doctrine. Generally, only parties to a contract can enforce the contract. This general principle is stated with great lucidity in Dunlop Pneumatics Tyre Co Ltd v Selfridge & Co Ltd (1915) AC 847. The Supreme Court followed this principle in Ikpeazu v African Continental Bank Limited (1965) NMLR 374/379 and stated thus:-

"What advantage, if any, can the Bank gain from the deed exhibit 'D'? Can the bank sue on the guarantee? Not being a party to it, we are of the view that the bank cannot acquire any rights under the deed. Generally, a contract cannot be enforced by a person who is not a party, even if the contract is made for his benefit and purports to give the right to sue upon it. (Tweedle v Akinson). This view was supported by the House of Lords in Dunlop Pneumatic Tyre Co Ltd and Selfridge Co Ltd.

The position is stronger with regard to contracts under seal; unless a person is named as a party to the deed, he cannot maintain upon it. The only exemption to this relates to indentures made about land, which was introduced by Section 5 of the Real Property Act 1845 to enable a stranger to a deed to take advantage of a benefit to him in the deed."

See also Negbenebor v Negbenebor (1971-72) Vol. 7 NSCC 200/205. I therefore agree with the Court of Appeal that there is no privity of contract and estate between first appellant and the respondent. In this appeal, the contract to sub-let was between the second appellant and the respondent. The first appellant though, had knowledge, never gave its consent which is required under clause 2 (f) of Exhibit 'B'. It therefore follows that the order for specific performance of an agreement between the respondent and second appellant cannot be made against the first appellant. There is that absence of mutuality which is a pre-requisite condition in an action for specific performance, there must be a valid contract between the parties before an order for specific performance can be claimed. Specific performance is an equitable remedy based on the discretion of the Court, and it is generally ordered where damages will be "inadequate to meet the justice of the case": Beswick v Beswick 1968 AC 58/88. Mutuality must be available to either party at the time of the contract. I will not go into the exceptions to the doctrine of privity of contract as they do not exist in this case on appeal.

The learned trial Judge was right when he absolved the second defendant from any claim for the failure of the first defendant and the plaintiff to maintain their contractual relationship.

It is now necessary to see whether, from the evidence, specific performance can be ordered against the second appellant in favour of the respondent. The respondent was aware that before the second appellant could assign or sub-let it must obtain the consent of the first appellant. The two of them i.e. the second appellant and respondent, set in motion the process that would facilitate the consent, but it was aborted and consequently refused. There is no doubt that the second appellant was in breach of the agreement with the respondent and is therefore liable in damages. I will come to issue of damages later. If consent has been granted by the first appellant, then an action for specific performance can be decreed against the second appellant, this is not the position. The respondent, in its brief, referred copiously to the principles which will guide the Court in granting or refusing this equitable remedy, available to either party to a contract. It is not a principle doubted by this court, but I cannot see how, on the facts of the case before the trial court, the lower court could have granted the relief for specific performance. The observation of Ademola JCA when the learned Justice said:-

"The Court had found, as a fact, that the first respondent did execute the lease for 40 years in favour of the appellant and he had been put into possession. It was also clear that the appellant had developed the property demised to it by building upon it. If even there was no consent to the lease made in favour of the appellant by the first respondent, it does not follow that the first respondent should have possession without an order for forfeiture in favour of the second respondent for a breach of covenant between the first respondent and second respondent."

may be relevant to the issue of damages but it is no valid reason for setting aside the relief of specific performance refused by the trial Judge.

It would appear that the lower court was carried away by the objection raised by Mr Animashaun. This will, in my view, be a valid consideration if the second appellant has, on its own, taken an action against the first appellant on the ground of withholding consent which would have been unreasonable.

If the second appellant failed to discharge his obligation to obtain consent from first appellant before sub-letting to respondent, an action for specific performance, as the subsisting agreement between the appellants has not been complied with, must fail: Coker v Ajewole (1976) NSCC (Vol. 10) at 429. In other words, a party who wants the court to order the specific performance of a contract must comply with its terms. No court of law should give an order that will enable a party to a contract to breach the contract. On the whole, the relief sought by the respondent on the issue of specific performance must fail.

I now come to the issue of damages. The learned trial Judge found that there was a breach of agreement between the first appellant and the respondent. I need to remind myself of one of the orders made by the trial Judge on 3 October 1989 to wit:-

"Plaintiff to repair their property." (See page 89 line 33 of the record of appeal.)

There was this evidence in Chief by PW1. Paul Edison Jakpor Umukoro:-

"I have since rebuilt the buildings that were demolished by the second defendant at a cost of N99,279.18 (Ninety nine thousand, two hundred and seventy nine Naira and eighteen Kobo)."

He was not cross-examined on this piece of evidence. It would appear that the learned trial Judge concentrated on an evaluation report not tendered, and lost sight of the evidence on the buildings rebuilt by the respondent, hence the learned trial Judge refused that amount of N100,000 since no evaluation report was tendered, but he was wrong to say that:-

"He was however unable to produce this valuation report and no further evidence was called in support of this head of damage." (My emphasis.)

I think the lower court was right to have awarded the sum of N99,279.18. The lower court said:-

"At the trial the evidence of second respondent or the first respondent did not dispute the re-building done by the appellant. No cross-examination of him took place, nor was the figure given by him challenged in any way. There was no further obligation on him to prove further his assertion. I would therefore award the sum of N99,279 (sic) given in evidence."

I agree. What is required is the probative value ascribed to the evidence of a witness. Once there is no contrary evidence or if the evidence is not challenged in cross-examination, a court can, in fact, act on it. (See Obimiami Brick & Stone (Nigeria) Ltd v African Continental Bank Ltd (1992) 3 NWLR 260/294).

The second appellant, in his brief, had attacked the damages awarded and made it issue no 3 in its brief. Learned Counsel has referred to a number of cases which deal strictly with special damages and the proof required.

This approach obviously ignored the order made and which order I quoted above. I am in complete agreement with the lower court on this award of N99,279.18. The appeal on the issue is dismissed. The order for N10,000 made by the trial court against the second defendant (i.e. the first appellant in this court) and confirmed by the lower court should stand. The first appellant was a trespasser. As at the time of demolition of the building, the respondent was in possession.

With regard to the counterclaim ie for recovery of possession, this claim must succeed. The respondent can no longer be in possession since there has been no valid consent by the first appellant to the proposed sub-lease and more so, when the order for specific performance has been refused.

In the final analysis these are the orders of this court:-

(i) The appeal against specific performance is allowed. The order for specific performance made by the lower court is set aside.

(ii) There will be damages in favour of the respondent as follows:-

(a)     N99,279.18 being the value of the buildings damaged and rebuilt by respondent; this amount to be paid by the second appellant.

(b)     N10,000 damages for trespass committed by the first appellant.

(c)     N20,000 against the second appellant for breach of agreement between the respondent and the second appellant.

(iii) The second appellant is entitled to possession of the land and the respondent shall pay the sum of N1,500 per month until possession is delivered.

I now come to an issue of grave concern, which is not an isolated matter in this court and that is the conduct of Mr EO Olufote, the learned Counsel for the Lagos State Development and Property Corporation, the first appellant in this appeal. When this appeal came before this court on 9 September 1991, the court granted an accelerated hearing and fixed it for second March, 1992, Mr Olufote was in court on that day i.e. 9 September 1991.

When the appeal came up for hearing on second March, Mr Olufote was not in court and there was no explanation for his absence. We heard the appeal, since a brief had been filed by him on behalf of the first appellant. We then adjourned for judgment, which was then fixed for 29 May 1992. Two issues later arose and we decided to recall Counsel on all sides to address us further on 5 May 1992. He was duly notified. He again failed to appear, there was no explanation for his absence.

It appears that Counsel now abused the provision of Order 6 Rule 8(6) which states:-

"When an appeal is called and no party or any legal practitioner appearing for him appears to present oral argument, but briefs have been filed by all the parties concerned on the appeal, the appeal will be treated as having been argued and will be considered as such."

The purpose of this rule is to avoid delay in the hearing of appeal, as it may take a longer time to get another hearing date. Counsel must appreciate that it is in the interest of their clients and the interest of justice for them to appear in court to argue their appeals as the court may wish to have some explanations about the submissions made and issues raised in their briefs. If the absence of Counsel who had been duly notified of the date of judgment of court is regarded as an act of disrespect to the court (See Order 8 rule 14(2) of the Supreme Court Rules), then the absence of a Counsel who was duly notified of a further address appears to be a calculated act of disrespect which borders on misconduct. A Counsel who is unable to attend the court owes it a duty to arrange for another Counsel to hold his brief. It is discourteous and impolite for a Counsel to turn down the invitation of this court to address it further on any issue. If Counsel appreciates he is, first and foremost, an officer of the court, his duty as an officer is to show utmost respect and not treat the process of court with levity. Mr Olufote should regard this observation about his conduct as a warning which must not be repeated.

The appeals, subject to the orders made above, are hereby partly allowed. Costs of N1,000 in favour of the respondent to be paid by the second appellant.

Bello, CJN:- I have had a preview of the judgment delivered by my learned Brother Olatawura JSC. I am in complete agreement and I adopt it as mine.

I endorse the orders made therein.

Uwais, JSC:- I have had the advantage of reading in draft the judgment read by my learned brother Olatawura, JSC. For the reasons contained in the judgment, I too will dismiss the appeal by both appellants in part subject to the orders contained in the said judgment. The respondent is entitled to N1,000 against the second respondent.

Kawu, JSC:- I have had the advantage of reading, in draft, the lead judgment of my learned brother, Olatawura, JSC which has just been delivered. I am in complete agreement with his reasoning and also with his conclusions. On the facts of this case, as there was no privity of contract between the first appellant and the respondent as the contract to sublet was between the second appellant and the respondent, subject to the consent of the first appellant as stipulated under clause 2(f) of Exhibit B, an order for specific performance cannot be properly decreed against the second appellant. Subject to the orders made in the lead judgment, I too will dismiss the appeals with N1,000.00 costs in favour of the respondent.