ALHAJI ALI M.

SHUWA
V.
CHAD BASIN DEVELOPMENT AUTHORITY

COURT OF APPEAL (JOS DIVISION)

CA/J/79/89
EMMANUEL TAKON NDOMA-EGBA, J.C.A. (Presided)
ALOMA MARIAM MUKHTAR, J.C.A.
OBINNAYA ANUNOBI OKEZIE, J.C.A. (Read the Leading Judgment)

MONDAY, 29TH APRIL, 1991

ACTION - Detinue - Claim in action for detinue - What plaintiff must prove.

COMPANY LAW - Incorporated companies - Acts of - Whose acts can bind the
company.

CONTRACT - Building contracts - Termination of - Whether principle of fair

hearing applicable thereto.

CONTRACT - Privity of contract - Person not party to contract - When capable of

suing thereon.

EVIDENCE - Evidence led on fact not pleaded - How treated.

ESTOPPEL - Estoppel by representation - Meaning and object of.

FAIR HEARING - Building contracts - Termination of - Whether principle of fair

hearing applicable thereto.

PRACTICE AND PROCEDURE - Pleadings - Evidence led on fact not pleaded -

How treated.

TORT - Detinue - Claim in action for detinue - What plaintiff must prove.
 Issues:
1.Whether the appellant, not being a party to the building contract between the
respondent and the contractor could sue on issues touching on the terms of the
contract.
2.Whether the respondent was estopped from denying the rights of the

[1991] 7 NWLRShuwa v. Chad Basin D.A551

appellant to the machines.

Facts:

On the 3rd of September, 1976, AKAM and the respondent herein entered
into a contract - for AKAM to construct a pumping station for it. The appellant
herein was not a party to the contract. AKAM failed to execute the contract in
terms of the contract. The respondent was entitled to enter into the contract site
and expel AKAM on issuing the requisite notice to AKAM. All AKAM'S plants
and machines would then be forfeited to the respondent.
AKAM was in breach of the contract and the respondent served AKAM 14
days notice within which to perform the contract to completion. The contract
was, not completed and AKAM forfeited all its machines on the site to the
respondent by letter dated 25/4/84. A bulldozer, subject matter of the appellant's
claim was one of the machines. AKAM purported to sell the bulldozer in
possession of the respondent to the appellant on 9th July 1986. The respondent,
upon request from the appellant refused to release the machine to the appellant
unless AKAM paid the sum of N70,000.00 due to it.
Following this refusal, the appellant filed this action claiming damages for
detention of the machine and an order that it be released to him.
The respondent contended that the issuance of the notice to AKAM on the
25th April 1984, had the dual effect of expelling AKAM from the site and
vesting on the respondent the ownership of all AKAM'S machines including the
bulldozer. It denied any knowledge of the purchase of the bulldozer by the
appellant from AKAM and contended that AKAM had no interest in the said
machine or the authority to sell same to the appellant.
The learned trial judge dismissed all the claims of the appellant. Being
dissatisfied with the decision, he appealed to the Court of Appeal.

Held (Unanimously dismissing the appeal):

 1.On Treatment of evidence led on fact not pleaded -

A party wishing to rely on a fact must plead same and evidence led
on a fact not pleaded goes to no issue at the
hearing. [Ogbodo v. Adulugba (1971) 1 All NLR 68 at
71; Akinloye v. Eyiyola (1968) NMLR 92 referred to]. (P.560, para.
E)

2.On Applicability of principle of fair hearing to termination of building

contract -

There is no obligation on the part of a party to a building contract to

hear the contractor before terminating a building contract once the
termination is done in accordance with the terms set out in the
contract. In the instant case, the contractor was put on notice and
given reasonable time to complete the outstanding works. There was
no evidence before the court that the contractor did anything other
than to dispose of the machines by selling them to the appellant. He
had the opportunity by the notice Exh.G to be heard but he did
nothing. In the circumstance, he can no longer complain that he was
not heard. [L.S.D.P.C. v.

552Nigerian Weekly Law Reports28 October 1991

Foreign Finance Corp. (1987) 1 NWLR (Pt.50) 413 referred to and

applied]. (P.561, paras. A -C)

3.On Privity of contract -

Generally, a person who is not a party to a contract cannot sue on it or
seek the enforcement of any term of the contract. [Ordor v.
Nwosu (1974) All NLR (Pt.2) 478 at 485-486; Foko v. Foko (1968)
NMLR 441; Adejumo v. Ayantegbe (1989) 3 NWLR (Pt.110) 417 at 431
followed]. (P. 562, paras. E-F)

4.On Privity of contract -

A person can sue on a contract made for his benefit even if no
consideration has moved from him. In the instant case, the contract did
not confer any interest or benefit on the appellant. He is a complete
stranger to the contract and therefore could not
sue on it. (P.562, paras.G-H)
5.On Estoppel by representation -
Where a true owner of goods, by words or conduct, represents or
permits it to be represented that another person is the owner of the
goods, any sale of the goods by that person is valid against the true
owner thereof with respect to anyone buying the goods in reliance on
the representation. (P.563, para. C)

6.On Estoppel by representation -

To succeed in this case, the appellant relying on estoppel by
representation must prove that he was led to change his position for that
purpose or that representations were made by the respondent on the faith
of which he acted. The appellant is not entitled to say that the
respondent was negligent. (P.564, para. C)

7.On Estoppel by representation -

The object of estoppel in pais is to prevent an unjust departure of one
person from an assumption adopted by another as the basis of some act
or omission which unless the assumption is adhered to would operate at
that other's detriment. [Egbe v. Adefarasin (1987) 1 NWLR (Pt.47)
21 applied]. (P.563, paras. A- B)

8.On Who can bind a company -

It is not the act of every servant of a company that binds the company.
The acts that bind the company are those of directors and managers who
direct the affairs of the company. [N.N.S.C. v. Sabana (1988) 2 NWLR
(Pt.74) 23 followed]. (P.564, para. G)

[1991] 7 NWLRShuwa v. Chad Basin D.A553

9.On Onus on plaintiff in a claim for detinue -

The plaintiff in a claim for detinue must establish that he is the owner
of the thing the recovery of which he is seeking. [Sodimu v.
N.P.A. (1975) 4 S.C. 5 at 27 followed]. (P.565, paras. F-G)

Nigerian Cases Referred to in the Judgment:

 A.C.B. Ltd. v. Egbunike (1988) 4 (Pt.88) 350 Adejumo v. Ayantegbe (1989)
3 NWLR (Pt.110) 417 Adimora v. Ajufo (1988) 3 NWLR (Pt.80)
1 Akinloye v. Eyiyola (1968) NMLR 92
Barau v. Brett (1968) 1 All NLR 183
Din v. A.G. (1988) 4 NWLR (Pt.87) 147 Ebueku v. Amola (1988) 2 NWLR
(Pt.75) 128 Egbe v. Adefarasin (1987) 1 NWLR
(Pt.47) Ehimare v. Emhonyon (1985) 1 NWLR (Pt.2) 177
Foko v. Foko (1968) NMLR 441
Iga v. Amakiri (1976) 11 S.C. 1
L.S.D.P.C. v. Foreign Finance Corp. (1987) 1 NWLR (Pt.50) 413

Lewis & Peat (N.R.I.) Ltd. v. Akhimien (1976) 7 S.C. 157

N.E.M.G.I. v. Martins (1969) 1 All NLR 469

N.N.S.C. v. Sabana (1988) 2 NWLR (Pt.74) 23
Ogboda v. Adulugba (1971) 1 All NLR 68
Ojo v. Gov. of Oyo State (1989) 1 NWLR (Pt.95) 1
Ordor v. Nwosu (1974)1 All NLR (Pt.2) 478
Peenock Invest. Ltd. v. Hotel Presidential Ltd. (1983) 4 NCLR 122

Sodimu v. N.P.A. (1975) 4 S.C. 15

Udechukwu v. Okwuka (1956) SCNLR 189

Foreign Cases Referred to in the Judgment:

Bell v. Marsh (1903) 1 Ch. 528
Drive Yourself Hire Co. Ltd. v. Strutt (1954) 1 Q.B. 250

Thompson v. Palmer (1933) 49 C.L.R. 507

Book Referred to in the Judgment:

Stroud's Judicial Dictionary, 4th Ed., Vol. 2 p. 1081

Appeal:
 This was an appeal against the decision of the High Court dismissing the
appellant's claims. The Court of Appeal unanimously dismissed the appeal and
affirmed the judgment of the High Court.

History of the Case:

Court of Appeal:

Division of the Court of Appeal to which the Appeal was

brought: Court of Appeal, Jos.

Names of Justices that sat on the Appeal: Emmanuel Takon Ndoma-

Egba, J.C.A.; (Presided); Aloma Mariam Mukhtar, J.C.A.; Obinnaya
Anunobi Okezie, J.C.A. (Read the Leading Judgment)

554Nigerian Weekly Law Reports28 October 1991(Okezie, J.C.A )

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Appeal No.: CA/J/79/89

Date of Judgment: Monday, 29th April, 1991.
Counsel:
Not stated.
OKEZIE, J.C.A. (Delivering the Leading Judgment): The claims of the plaintiff
in the Borno State High Court which is detailed in his 2nd further amended
statement of claim in paragraphs 10 and 11 are as follows:
"10 By virtue of the facts pleaded; the defendant has wrongly refused to
permit the plaintiff to remove the said Bulldozer model D7G from the
defendant's premises despite demand and the defendants have wrongly
deprived the plaintiff of the said machine and of the use and enjoyment
 thereof; and still detain the said machine from the plaintiff; in
consequence whereof the plaintiff has suffered lose and damages.
(a)Damages; N117,600 being loss of use of the said machine for 84 days at N1,400
daily covering the period 4th April 1987 to 31st July, 1987.
(b)A declaration that the said Bulldozer machine model D7G is the property of the
plaintiff.
(c)An injunction to restrain the defendants by itself, its servants or agents or how
otherwise from selling, disposing of or in any way dealing with the said machine
without the consent of the plaintiff.
(d)An order for the delivery up by the defendant to the plaintiff of the said machine.
(e)Nil 7,600 being damages suffered by way of loss of use as a result of the wrong
detention.
(f)10% per cent interest per annum on the above sum of N 117,600 with effect from
the date of judgment until liquidation.
Pleadings which were subsequently amended were filed and exchanged in
pursuance of order of court.
In order to understand the case, it is necessary to set down the facts. On the
3rd September, 1976, AKAM and the defendant entered into a contract, Exhibit F -
for AKAM to construct a pumping station for the defendant. The plaintiff in this
suit was not a party to the said contract. AKAM failed to execute the contract in
terms of the contract. The defendant was entitled to enter into the contract site and
expel AKAM on issuing the requisite Notice to AKAM, Exhibit G all AKAM's
plants and machines at the contract site would be forfeited to the defendant. AKAM
was in breach of the contract and the defendant served AKAM 14 days Notice on
the 25 April, 1984 within which to complete the outstanding works as provided by
the contract. The contract was not completed and AKAM forfeited all plants and
machines at the contract site to the defendant. A bulldozer, the subject matter of the
plaintiff's claim was one of the machines belonging to AKAM and being used at the
contract site. AKAM purported to sell the said bulldozer in possession of the
defendant on the 9th July, 1986 to the plaintiff. On the 9th December, 1986 and 3rd
April, 1987 respectively, the plaintiff presented two documents from the

[1991] 7 NWLRShuwa v. Chad Basin D.A(Okezie, J.C.A )555

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defendant's General Manager to the defendant as evidence of ownership of the
goods in AKAM and one of the machines was released to the plaintiff. The
defendant refused to release the bulldozer the subject matter of this unless
AKAM paid the sum of N70,000.00 due to it. The plaintiff demanded the return
of the goods but the defendant refused.
Relying on the aforementioned facts, it was the defendant's case that the
issuance of Exhibit G to AKAM on the 25th, April 1984, had the dual effect of
expelling AKAM from the contract site vesting in the defendant the ownership of
all AKAM's machines including the bulldozer. The respondent denied any
previous knowledge of the purchase of the bulldozer by the plaintiff from
AKAM. The defendant averred that AKAM had no interest in the said machine
neither authority to sell same to the plaintiff.
The above is briefly the respective claims of the parties gathered from
pleadings.
The plaintiff testified for himself and called no witness. The first
defendant's witness testified for the defendant, and after addresses of counsel and
a review of the evidence the learned trial judge Ogunbiyi, J. on 3rd day of
November, 1988 made the same findings of fact and arrived at some conclusions
in his judgment and dismissed the plaintiff's case with N555.00 costs.
These include the following facts:
(1)That on the 3rd September, 1976, the third party, AKAM and the respondent
entered into a contract Exhibit F, for AKAM to contract a pumping station for
the respondent.
(2)That the appellant was not a party to Exhibit F.
(3)That AKAM failed to execute the construction of the pumping station.
(4)That the respondent was entitled to enter into contract site and expel AKAM
on issuing the requisite Notice where AKAM fails to execute the said
construction works.
(5)That on the respondent issuing the requisite Notice to AKAM, Exhibit G all
AKAM's plants and machineries at the contract site would be forfeited to the
respondent.
(6)That the bulldozer, the subject matter of the appellant's claim was one of the
machineries belonging to AKAM and being used at the contract site.
(7)That Exhibit G. which is the letter of forfeiture dated 25th April, 1984 written
by defendants to AKAM was in pursuant of clause 63 of Exhibit F and that the
effect of Exhibit G was to divest AKAM of ownership of all machines lying at
the contract site at Kirenowa.
(8)That the bulldozer D7G which the plaintiff is claiming was amongst the
machines forfeited by AKAM to the defendant in pursuance to Exhibits G and F.
 (9)That the machines at the date of alleged purported sale to the plaintiff was in
possession of the defendants who became the legal owner consequent to Exhibit
G.
(10)By Exhibits H and I the third party AKAM at the time of sale of the machine
to the plaintiff knew that it had no title, ownership, authority or power to sell the
same.

556Nigerian Weekly Law Reports28 October 1991(Okezie, J.C.A )

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Aggrieved by the said judgment the plaintiff appealed to this court on the
following grounds. Seven grounds of appeal were filed. On the 24th April, 1990,
this court granted the appellant leave to file four additional grounds of appeal.
These eleven grounds of appeal were argued by the plaintiff's counsel. The
plaintiff and defendant will herein after be referred to as appellant and respondent
respectively. AKAM (as contractor) in this appeal.
These grounds, without their particulars, some of which are set out hereunder
as follows:
(1)The learned trial Judge erred in law and thereby came to a wrong decision when
after holding at page 13 that:
"Exh. F as stated earlier was between AKAM and C.B.D.A. While Exh.
G was addressed to Messrs. AKAM Ltd. The question to ask is can the
name AKAM Ltd. be substituted for AKAM, or the same £
interchangeably' In law while the former use is for a corporate body and
limited liability company, the latter is not. There is no evidence led in
this court that the two names are synonymous; furthermore from
pleadings of both parties, there is no indication that the said business
was a limited liability company".
The court nevertheless came to the conclusion that the document Exh 'G' was
a document addressed to AKAM.
(2)The learned trial judge erred in law and on the facts and thereby came to an
erroneous decisions when she held that the document Exh. 'G' was brought to the
Notice of AKAM.
(3)The learned trial Judge erred in law and on facts and thereby came
 to a wrong conclusion when she held at page 15 as follows:
"Further still, at page 2 of Exh. G there is an evidence clearly marked
that the document was despatched on 2/5/84 whether or not evidence
was led as to postage does not in my view effect the actual notice
given."
(4)The learned trial Judge erred in law and on facts in coming to the conclusion that
by the combined effect of Exhibit 'G' and clause 63
(1)of Exh. F the machines in dispute had been forfeited by AKAM
to the defendant.
(5)Having regards to the joinder of issues between the parties as to the applicability
or otherwise of S. 150 of the evidence Act and the doctrine of estoppel in pais and
the evidence led, the learned trial Judge came to a wrong conclusion in holding that
neither S. 150 of the Evidence Act nor the doctrine of estoppel applied to the facts of
this case.
(6)In the alternative to ground 5 the learned trial judge erred in law and on the facts
in failing to give judgment to the plaintiff on the basis of Exhs. B and D as
admissions operating as estoppel or as admissions adverse to the defendants case
and therefore conclusive of the facts asserted in the said documents.
(7)The judgment of the High Court is unwarranted, unreasonable and cannot be
supported having regard to the weight of evidence.
(8)The learned trial judge erred in law when she held at page 113 as follows:

[1991] 7 NWLRShuwa v. Chad Basin D.A(Okezie, J.C.A )557

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"While a portion of Exh. 1 envisages a possibility of realising

money towards settlement of damages caused by the contract also
money realised towards collecting the said second-hand
machines From Exh. 1 paragraph (i) in particular, the letter
 is in line with the provisions of clause 63 (1) of Exh. F, this is to
say where the Defendant is empowered to employ any contractor
for the completion of the job undone.
In my view with the combining effects of Exh. F in particular
clause 63 read along with G, H and I, there is every indication that
the contents of Exh. G was brought to the notice of the third party
AKAM.
(9)The learned trial Judge again erred in law when she held at page 118 as
follows:
"In invoking strict definition of forfeiture supra it would require
the interpretation of clause 63 subject to Exh. G in particular
paragraph 3 thereof; the effect which is manifest in Exhs. H. and I
in particular paragraphs (i) and (iv) of the letter, where the tone is
that of a permission sought from the defendant, thus
acknowledging them as the owners thereof'
And this occasioned miscarriage of justice.
(10)The learned trial judge misdirected herself on the law and on the facts when
she held at page 123 as follows:
"Similarly the arguments by the plaintiff's counsel on the I
inspection by the plaintiffs, of the machines in company of AKAM
representative in the presence of workers at the power station, and also
informing them of the reason for the inspection as stated by the plaintiff in his
evidence under cross-examination and re-examination could also in my view,
operate as an estoppel against the defendants. This is because there is no
further evidence indicating that the workers present had the authority to
represent the defendants in such extent of capacity of taking such important
decision. The mere entry by the plaintiff in the company of AKAM
representatives and informing the workers is thereof not sufficient"
And this misdirection occasioned mis-carriage of justice.
(11)The learned trial judge erred in law when she held at page 126 as follows:
"Without proof of good title in AKAM and also the failure of the
submission of estoppel (Supra), all the claims by the plaintiff as
per paragraphs 10 and 11 of his 2nd further Amended Statement
of claim fail."
And this error occasioned miscarriage of justice.
In arguing these grounds appellant's counsel summarised the issues raised
into three, thus:
(1)Was the learned trial judge correct in holding that "From all indications
the ownership of the machines in question lie in the defendant giving
rise to a forfeiture and as provided by clause 63 (1) ' (See page
118 of the record)
 558Nigerian Weekly Law Reports28 October 1991(Okezie, J.C.A )

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(2)From the available evidence before the court, is the respondent estopped from
denying the rights of the appellant in the machines'
(3)Was the learned trial judge right, having regard to all the evidence before her, in
dismissing appellant's claim'
Both counsel adopt the three issues.
As regards issue one in respect of grounds 1,2,3,4, 8 and 9, it is expedient
and tidier to start from the Agreement which is accepted by both sides and
tendered in evidence as Exhibit F.
Clause 63 (1) of Exhibit F reads thus:
" If the engineer shall certify in writing to the Employer that in
his opinion the contractor:
(a)has abandoned the contract or
(b)without reasonable excuse has failed to commence the work...
(c)

(d)
(e)

(f)

Then the employer may after giving 14 days notice in writing to

the contractor enter upon the site and the works and expel the
contractor therefrom thereby avoiding the contract or releasing the
contractor from any obligation or liabilities under the contract or
affecting the rights and powers conferred on the employer by the
 contract and may himself complete the work or may employ any
other contractor to complete the work,, and the employer or such
other contractor may use for such completion so much of the
constructional plant Temporary Works and materials which have
been deemed to be reserved exclusively for the construction and
completion of the work under the provisions of the contract as he or
they may think proper and the Employer may at any time sell any of
the said construction plant Temporary Works and mused materials
and apply the proceeds of sale in or towards the satisfaction of any
sums due or which may become due to him from the contractor under
the contract." {Italics mine).
The main contention before us being that there was no evidence that
Exhibit G was brought to the notice of AKAM as the said document was
addressed to Messrs AKAM Limited. Counsel argued that there was no
evidence led in the court that the two names are synonymous.
It is convenient at this stage to refer to the pleadings. In paragraph 7 of
the further amended statement of defence the defendant pleaded as follows:
"With regard to paragraph 5 of the statement of claim the defendant
further avers that according to the agreement between the defendant
and Alhaji Ali Kotoko and Alhaji Ali Mohammed and company,
under forfeiture clause 63, the said AKAM had already forfeited the
said machines including the pay loader and bulldozer and interests at
the site in the contract. We shall at the trial rely on the Agreement
between the defendant and AKAM and on the letter of NOTICE of
forfeiture dated the 25th of April. 1984." (Italics mine).
The appellant did not challenge the above averment any where in his
[1991] 7 NWLRShuwa v. Chad Basin D.A(Okezie, J.C.A )559

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pleadings. At the trial, the respondent relied upon Exhibit G as constituting

notice under Exhibit F in particular clause 63. The crucial issue to be decided in
this appeal is whether the learned trial judge was right in regarding Exhibit G as
sufficient notice under Exhibit F, and if so whether it was brought to the notice
of AKAM.
Exhibit G. is a letter dated 25th April, 1984, addressed to Messrs. AKAM
Limited, c/o Kotoko Group Limited,
Shehu Laminu Road,.
P. O. Box 252, Maiduguri.

Contract SC/38 - Civil Works for Pumping Stations.

We wish to invite your attention to the outstanding works in the above

contract as communicated to you by NET Consulting Engineers vide their letter
No. 334/4/Sc.38 (ix) of 27th May, 1982. We have been informed by the
Engineers that, the following works are still outstanding in spite of several
requests made to you by the Engineer in this regard which is considered
unfortunate:
(i)Road surfacing at Kirenowa Gadai, Gumshe and Sandridge Pumping Stations.
(ii)Track Racking machines for Kirenowa Pumping Station.
(iii)Main Entrance Door at Kirenowa, Gaddai, Gumshe and Sandridge pumping
station.
(iv)Stoplogs and its sillbeam and lifting arrangement at Gumshe and Sandridge
pumping stations.
(v)Handing over of Delvatering Equipment in useable condition.
(vi)Handing over of contractor's camp at Kirenowa and Gadadai in useable
condition.
 (vii)Handing over of survey and other equipment in useable condition.
2.The Engineer has further communicated in writing to you that in his own
opinion you have abandoned the contract for all intent and purposes. We thus
find you in default as per clause 63 (1) (b) of the contract.
3.Please be therefore informed that if you fail to resume the work within 14 days
of issue of this letter and complete the outstanding works within a reasonable
time, the outstanding works will be completed by other Agencies at your cost as
per clause 63(1) and 63(3) of the General Conditions of contract. We trust you
will not allow this situation to arise and do the needful with urgency it deserves.
This is without prejudice to all the rights of the Authority as per contract.

(Sgd) Alhaji Bunu S. Musa, General

Manager

c.c:The Project Manager,

MRT Consulting Engineers,
Maiduguri.
Above for information and necessary action, with respect to letter No.
344/ 4/SC.38/216 of 15th March, 1984.

560Nigerian Weekly Law Reports28 October 1991(Okezie, J.C.A )

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c.c:Alhaji Ali Kotoko,

Chairman,
Kotoko Group Limited,
Maiduguri

Your assistance in the matter is requested, please.

 (Sgd) Alhaji Bunu S. Musa
General Manager
DESPATCHED DATE....2/5/84

Learned counsel Mr. Obishai conceded in his brief of argument that exhibit G
was sufficient notice under paragraph 63 of Exhibit F.
In my view the learned trial Judge was right in holding that exhibit G
constituted notice under paragraph 63 of exhibit F. Mr. Obishai argued that the
notice was not validly served on the contractor (AKAM) as there was neither proof
of delivery nor postage of exhibit G to the contractor. Instead it was addressed to
AKAM Limited: Reliance was placed on National Employers Mutual General
Insurance Association Ltd. v. Ladun Martins (1969) 1 All NLR 469. There is
substance in that submission that for such notice to have effect it must be
communicated to the person.
This point was not raised in any of the paragraphs of the Reply filed by the
appellant, it is being raised for the first time. The evidence of Alhaji Ali M. Shuwa
(PW1) was one of mere denial of paragraph V of the defence. Under order 25 rule 6
of the Rules of the High court Borno State, the appellant should have pleaded it if
he intended to rely on it. As the evidence was based on facts not pleaded and there
was no amendment, it goes to no issue at the hearing. See: Ogboda v.
Adulugba (1971) 1 All. NLR 68 at p. 71, Akinloye v. Eyiyola (1968) NMLR 92.
The Programme Manager and adviser on Management finalisation of contract
(DW1) pleaded the notice in paragraph 7 of the amended defence and testified that
the original of exhibit G was with Alhaji Ali Kotoko and Ali Mohammed
(Contractor), and the respondent had written for its production. He tendered a copy
of Exhibit G dated the 25th April, 1984, stamped Despatched 24/5/84 with the
name of and addressed to AKAM Limited the addressee. PW 1 denied the receipt of
the exhibit G but he was not the addressee or an employee of the contractor, whose
duty was to collect and open letters addressed to the contractor (AKAM). There is
no assertion by the addresses that the (contractor)AKAM did not receive it. There
was no mode of service provided for in the contract. See: National Employers
Mutual General Insurance Association Ltd; v. Ladun Martins (1969) 1 All NLR
469.
In the instant case, I am satisfied that the learned trial judge sufficiently
reviewed the evidence in this regard and on the strength of the respondent's H
evidence which he accepted as the truth, he was justified in coming to the
conclusion, as he did, that the original of exhibit G was delivered to (AKAM)
contractors. See Ehimare v. Emhonyon (1985) 1 NWLR (Part 2) p. 177 at p. 185.
Mr. Obishai has contended that a person whose civil right and interest are to
be forfeited must be given a fair hearing under section 33 of 1979 Federal
[1991] 7 NWLRShuwa v. Chad Basin D.A(Okezie, J.C.A )561

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Constitution.
In the instant case, the contractor (AKAM) was put on notice and given
reasonable time to complete the outstanding works., There is no evidence before
the court that the contractor did anything other than to dispose of the machines
by selling them to the appellant. He had the opportunity by the notice exh. G
dated 24th, April, 1984 to be heard but he did nothing. In my view he can no
longer complain that he was not heard: See also; L.S.D.P.C. v. Foreign
Corp. (Supra).
It was further submitted on behalf of the appellant that a forfeiture clause
must be strictly construed. Learned counsel relied on the following
authorities: Peenok Investments Ltd. v. Hotel Presidential Ltd; (1982) 12 S.C 1 at
pp.25 & 106; Bello v. the Diocesan Synod of Lagos (1973) 3 ESCNLR (Pt. 1) p.
330 at p. 344; Ojo v. Gov. of Oyo State (1989) 1 NWLR (Pt.95) 1 at 12 and Din
v. A.G., (1988) 4 NWLR (Pt.87 ) 147 at 184 - 5.
All the above-titled authorities are based on vested rights and the courts
guard these vested rights jealously and therefore look at any legislation which
attempts to derogate from them as if it were a penal legislation which must be
construed very strictly. See Ojo v. Gov. of Oyo State (Supra). He referred to
stroud's Judicial Dictionary (4th Edition) vol. 2 at page 1081 - "Forfeiture"
means.
"The loses of all interest" in the property spoken of; and a clause
affecting it must be construed strictly.
See Clavering v. Ellision 35 LJ. Ch. 274 in which the principle was
applied."
See Peenock Investments Ltd. v. Hotel Presidential Ltd; (1983) 4
NCLR p. 122 will be applied in the instant case.
The forfeiture clause is contained in clause 63 (1) of Exhibit F, the contract
agreement between the contractor (AKAM) and the respondent. What are the
 properties spoken of which resulted to the loss of all interest by the contractor
due to the forfeiture' The relevant properties for the purpose of this contract are
those owned by the contractor (AKAM) and forfeited on the 24th December,
1984. Namely: A pay loader and bulldozer D7G.
What is the effect of clause 63 (1) of Exhibit F on such properties:
It is necessary to set down in summary the facts as they appeared in the
judgment of the trial court. There is no doubt that there is a contract agreement
between the contractor (AKAM) and the respondent to construct a pumping
station. The contractor was in breach of the contract and on the 24th, April 1984
the respondent served the contractor with 14 days notice of the breach and the
contract terminated.
Thereafter the ownership of all the properties of the contractor including
the two machines vested in the respondent. There was a purported sale of the said

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machines on the 9th July, 1986 to the appellant by the contractor without the
knowledge and consent of the respondent. The appellant in turn hired one of
the machines, the pay loader to Acherico Nig. Ltd, for the sum of N40,000.00
and obtained two documents from the respondent's General Manager for
release to him of one of the machines and the other, the bulldozer was withheld
and detained.
The learned trial judge rightly concluded that the bulldozer D7G was
forfeited to the respondent and ownership vested in it.
At the time the contractor defaulted in the performance of the contract in
terms of the agreement and sold the machines which the ownership did not vest
in him. The purchase of the bulldozer never vested any rights on the appellant
for the contractor had nothing to sell. There is no difficulty to see on what basis
the respondent forfeited the machine. From the evidence the ownership of the
machine lie in the respondent giving rise to a forfeited the machine. From the
evidence the ownership of the machine lie in the respondent giving rise to a
 forfeiture as provided by clause 63 (1) of the agreement Exhi. F. From the
provisions in the agreement the intendment is clear that the proprietary rights of
the appellant are forfeited to the respondent in which case the courts have no
room for invocation of the principle: the agreement will be given its full effect.
See Din v. Federal Attorney General (1988) 4 NWLR (part 87) p. 147 at p.
188.
The learned counsel for the respondent has submitted that the appellant
was not a party to the contract agreement Exhibit F and only the contractor
(AKAM) can be heard to say that the respondent did not comply with the
conditions in clause 63 (1) and Exhibit F.
There is substance in the submissions of the learned counsel for the
respondent. It is a fundamental principle of English law which is also
applicable here that only a person who is a party to a contract can sue on it.
There is no doubt, the appellant was not a party to the contract agreement. The
respondent knew nothing about the appellant and contemplated no legal
relationship with him. The courts should be unwilling to allow a person who is
not a party to a contract to use its terms in order to secure a benefit which he
would otherwise not be entitled to obtain. In Eric Ordor v. Nwosu (1974) 1 All
NLR (Pt. 2) p. 478 at pp. 485-486, the Supreme Court, per Ibekwe. J.S.C. (as
he then was) said:
"The law on this point has been settled beyond controversy by such a
line of cases that we do not think it is any longer necessary to cite
authorities in support of it. We, therefore take the view that it is not
within the competence of the court to set aside a deed of lease at the
instance of a claimant who is a stranger to the lease...."
See Foko v. Foko (1968) NMLR p.441; Adejumo v. Ayantegbe (1989)
3 NWLR (part 110) p. 417 at page 431. There is authority that a person can sue
on a contract made for his benefit even if no consideration has moved from
him; See Drive Yourself Hire Co. Ltd; v. Strutt (1954) 1 QB 250 271 m- 275.
This particular contract did
not confer any interest or benefit on the appellant. Indeed he is a complete
stranger to the contract. The learned trial judge rightly found that the appellant
was not a party to Exhibit F being the contract agreement between the
respondents and the contractor (AKAM) and dismissed the appellant's claim.
Grounds 1, 2, 3,4, 8 and 9 hereby fail.
Issue two above flows from grounds 5,6 and 10 and issues were joined on
estoppel. The appellant in reply to paragraphs 6,7,10, 12 and 13 of the amended

[1991] 7 NWLRShuwa v. Chad Basin D.A(Okezie, J.C.A )563

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H
statement of defence pleads estoppel in paragraph 1 of his reply.
It may be necessary at this stage to restate the law relating to estoppel
and this was ably done by Oputa, J.S.C. in Egbe v. Adefarasin (1987)
1 NWLR (Pt.47) at page 21 adopting the dictum of Sir Owen Dixon C.J.
in Thompson v. Palmer (1933) 49 C.L.R. 507 at page 547 in restating the
Law relating to estoppel thus:
"The object of estoppel in pias is to prevent an unjust departure of one
person from an assumption adopted by another as the basis of some act
or omission which unless the assumption is adhered to would operate
at that other's detriment."
in Benjamin's Sale of Goods First Edition pages 215- 26 on estoppel by
representative states:
"Where a true owner of goods, by words or conduct represents or
permits it to be represented that another person is the owner of the
goods, any sale of the goods by that person is as valid against the
true owners thereof, with respect to any one buying the goods in
reliance on the representation'
The principle of estoppel by conduct is stated in section 150 of the
Evidence Act 1958 enshrined in the Supreme Court judgment in Joe
Iga v. Ezekiel Amakiri (1976) 11 S.C 1 at 12-13. These are very clear
statements of the law which have been followed by our courts. It is also to be
noted that estoppel is part of the law of Evidence. Normally an estoppel
ought to be pleaded by the party relying on it.
Applying the doctrine of estoppel enunciated above to the case in hand,
the question that calls for consideration is what version of the appellant's
plea of estoppel by representation did the learned trial judge reject and what
version did he believe in defence of it.
What is in issue now is whether there was representation made to the
appellant by the respondent that the contractor was the owner of the two
machines, which representation induced him to act to his detriment. Exhibits
B, D, H and I were tendered in evidence in support of this contention.
I set down the Exhibits as follows:
 (1)Exhibit B dated 9/12/86 reads:
"Please allow Alh. Ali Shuwa to close the engine of two machines
at Kirenowa belonging to AKAM but nothing should be removed".
The above exhibit has not disclosed any representation of ownership or
title in the contractor as to induce the appellant to act to his detriment.
Coming to Exhibit D dated 3/4/87 which reads:
"The bearer Alhaji Shuwa bought some machines from AKAM we
are releasing one of the two machines. Please allow him to take
either pay loader or the bulldozer, only one please".
After a close examination of the exhibit, there was equally no
representation because by the time the contractor sold the machines to the
appellant, he had no title in the goods to which he passed to the appellant;
and there was no representation.
The Exhibits H and I purported to have been written after the sale by
the contractor to the respondent. At the time Exhibits H and I were written
the sale had been completed.
The defendant's witness (DW1) under cross-examination in respect of
Exhibit H. Said:
"The letter Exhibit 'H' came after we had already written to AKAM

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to sell the machines but removal was subject to depositing the money
with CBDA... our only quarrel is that the N70,000 had not been paid,
if it had then we would have no quarrel with the plaintiff'.
When the appellant came to remove the goods the respondent could not
have made representations that the machines belonged to the contractor
(AKAM). To be estopped, the respondent ought to have made the
representation at the time the contractor was selling the machines to the
appellant. There was no evidence that the respondent was aware of the sale
between the contractor and the appellant. There is no substance in the argument
by learned counsel for the appellant that Exhibits H and I showed that AKAM
exercised his bona fide right to dispose the machines.
It is of most importance in order to found an estoppel that the appellant
must prove that he was led to change his position for that purpose or that
representations were made by the respondent on the faith of which the appellant
acted. If the appellant cannot do that he cannot succeed. He is not entitled to
say that the respondent was negligent. See: Bell v. Marsh (1903) 1 Ch. 528 at
541; section 150 evidence Act 1958.
The plaintiff in his evidence at pages 59-60 of the Record said that he
never knew of any interest of the respondent in the bulldozer, the bulldozer to
the best of his knowledge belonged to AKAM, and that he went to the
respondent's General Manager for the first time of his (appellant's) ownership
of the bulldozer in December, 1986 clearly showed that the respondent did not
make any representations to the appellant on or before the 9th July, 1986 on
which the appellant acted to his detriment. This also showed that the respondent
was not aware of the purchase by the appellant of the bulldozer from AKAM as
at 9th July, 1986.
One point raised in the appellant's brief was that the respondent did not
declare its interest in the machines before the appellant went to inspect them in
the presence of the workers and the representatives of the respondent, who told
him to take them away.
There was no evidence before the court that they had authority to
represent the respondent in such extent or capacity of taking such important
decision assuming they were consulted. For it is not the act of every servant of
the company that binds the company. Those acts that bind the company are the
acts of the persons - the directors and managers who direct the affairs of the
company. However, we do not agree with the appellant that a mere presence
and inspection of the vehicle would operate to vest knowledge of the appellant's
purchase of the bulldozer on the respondent. See N.N.S.C. v. Sabana (1988)
2 NWLR (Pt. 74) 23.
It is clear from paragraph 7 of the further amended statement of claim
which alleges that the plaintiff negotiated with the engineering firm of
Alsherine (Nig.) Ltd; on the 3rd April, 1989 for the hiring of the two machines
from 4th April 1987 to 31st July 1987, at the rate of N 1,460.00 per machine for
which an advance payment of N40,000.00 was made, which amount had to be
refunded because of the refusal by the respondent to release the bulldozer.
In paragraph 8 the plaintiff avers that following the agreement of the 3rd
April 1987, he went to the defendant's General Manager demanding to be
allowed to remove the machines from the premises of the respondent for which
a written memo dated 3rd April 1987 was given him for the Project Manager
with instructions contained therein that the plaintiff should be allowed to take
just one out of the two
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machines are not denied expressly or by necessary implication so they must

be taken to have been admitted or established see: Lewis & Peat (N.R.I) Ltd.
v. Akhimien (1976) 7 SC. 157; A.C.B. Ltd. v. Egbunike (1988) 4 NWLR (Pt.
88) 350 at 360-361, Adimora v. Ajufo (1988) 3NWLR (Pt. 80) 1 at 10-12.
In fact it cannot be otherwise in view of paragraphs 8 and 9 of the
amended statement of defence. Even then these cannot operate to stop, the
respondent from denying the appellant's right of ownership in the machines
as the appellant had already purchased the bulldozer before repairing it and
agreeing to hire same to Messrs. Alsherino & Co. Ltd; as per Exhibit B.
In the same vain the respondent could not have instructed the
contractor (AKAM) to sell the bulldozer as at July 1986 as argued by
appellant in page 8 of his brief. This is because the respondent's instruction
to the contractor (AKAM) to sell the machines at the contract site came after
24th, January 1987. The (DW1) testified at page 79 lines 25-28 of the record
as follows:
"After the receipt of the letters on the 24th January 1987 C.B.D.A.
informed AKAM to go ahead and sell the machines but the
removal will be subject to the money he deposited with CBDA"
At the end of the day the learned trial judge held on the evidence before
him rightly in my view rejected the plea of estoppel as the appellant failed to
establish any representation on the part of the respondent on which the
appellant acted to his detriment on or before 8th July, 1986.
Adverting to the third issue which is in connection with grounds 7 and
11, it is appellant's complaint that the learned trial judge was wrong in
dismissing the appellant's claim as:
(i)the respondent was estopped from denying the appellant's right in the said
bulldozer;
 (ii)the appellant was the owner of the bulldozer, and
(iii)the respondent wrongly detained the bulldozer which resulted in the appellant
suffering damages.
Counsel for the respondent based his submission on the fact that the
bulldozer being at all material times in possession of the respondent the onus
was on the appellant to establish that he was the owner of the machine.
The claim of the appellant was based in detinue and to succeed the
appellant had to establish his ownership of the bulldozer.
In Sodimu v. Nigeria Ports Authority (1975) 4 S.C. p.15 atpage27, the
Supreme Court state the law on detinue as follows:
"It is settled law that a plaintiff in such action must first establish
that he is the owner of the thing the recovery of which he is
seeking: See Udechukwu v. Okwuka (1956) 1 FSC 70, (1956)
SCNLR 189 and Barau v. Brett (1968) 1 All NLR 183.
There was undisputed evidence before the court that the respondent
was in physical possession of the bulldozer before the appellant's purported
purchase on the 9th, July 1986, from the contractor without the knowledge
and consent of the respondent. Since the ownership of the bulldozer is in
dispute between the two parties, the onus was on the appellant to establish
that he was the owner by proving a better title. The appellant failed to prove
any title to the bulldozer in dispute. The learned trial judge held and rightly
too in my view that the respondent being in possession of the bulldozer in
dispute, that the latter had a better title to the

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bulldozer in dispute than the appellant cannot be faulted. The trial court rightly
applied the doctrine of Nemo dat quad non habet to the case.
See Ebueku v. Amola (1988) 2 NWLR (Pt.75) page 128.
 Further, the appellant's evidence that the respondent was aware of his
purchase of the said bulldozer was not pleaded. It is established law that a
plaintiff must call evidence to support his pleadings and evidence which is
contrary to the pleadings goes to no issue and where inadvertently admitted, it
is the duty of the court to expunge it when considering its judgment:
"Aniemeka Emegokwue v. James Okadigbo (1973)4 Sc. 113 at
p.l17; George & ors v. Dominion Flour Mills Ltd; (1963) 1 All.
N.L.R. p. 71 at page 77; (1963) 1 SCNLR 117 and Ferdinand
George v. The United Bank for Africa Ltd. (1972) 8-9 SC. 264. Since
the appellant did not plead that the respondent was aware of the sale
to him, that evidence tending to support his plea of estoppel by
representation becomes inadmissible."
This ground of appeal fails. In my judgment therefore I find no substance
in any of the grounds of appeal filed by the appellant. In the result the appeal is
hereby dismissed by me with costs at N450.00 to the respondent.
MUKHTAR, J.C.A.: I have read in draft form the judgment just delivered by
my learned brother, Okezie, J.C.A. I am in complete agreement with the
reasoning and conclusion reached and also dismiss the appeal. I abide by the
order as to costs.
NDOMA-EGBA, J.C.A.: I had the privilege of reading in draft the lead
judgment prepared and just read by my learned brother, Okezie, J.C.A. with
which I concur.
Appeal dismissed.