JUDGMENTS OF THE NIGERIAN COURTS OF JUSTICE
Restoring Nigeria's Law to Nigeria's People - One by One
CLEMENTINA M. OGUNNIYI
HON. MINISTER OF FCT & ANOR.
TINUADE AKOMOLAFE-WILSON, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the decision of the Honourable Justice A. A. Banjoko of the Federal Capital Territory (FCT), Abuja Division, delivered on 29th April 2009; wherein the Appellant's case was dismissed in its entirety.
(a) An order of interim and interlocutory injunctions restraining the defendants, their privies agents, assigns or anyone acting for or on their behalf from evicting the plaintiff from her house of Plot 563, Flat 2 Durban Street, Wuse II Abuja ("the House").
(b) A declaration that the plaintiff is the only valid and lawful buyer/owner of the aforesaid House.
(c) An order compelling the defendants to conclude the purchase and transfer of title of the House by/or the plaintiff.
(d) An order of perpetual injunction restraining the defendants, their privies agents, assigns or anyone acting for or on their behalf from disturbing and howsoever interfering with the ownership title and occupation of the House by the plaintiff.
The Appellant simultaneously
filed an application for interlocutory injunction
restraining the Respondents which was refused by the
lower court which instead ordered accelerated hearing.
However, during the pendency of the case, unknown to the
court, the Appellant was ejected and the property in
dispute was re-allocated to one Mrs. Ajomobi, a
co-tenant/occupant of the property.
1. WHETHER THE LETTER OF OFFER (EXHIBIT B) WAS A CONDITIONAL OFFER AND IF NOT WHETHER THE SAID THE LEASE (LETTER OF OFFER) IS EX-FACIE NOT ILLEGAL BUT VALID AND ENFORCEABLE CONTRACT.
THE LEGAL STATUS AND EFFECT OF EXHIBIT Q (APPROVED
GUIDELINES) UPON THE CONTRACT BETWEEN THE PARTIES?
3. WHETHER THE LTJ CAN MAKE A CASE OTHER THAN THAT PUT FORWARD BY THE PARTIES.
4. WHETHER THE JUDGMENT OF TRIAL COURT IS SUPPORTED BY EVIDENCE ADDUCED AT TRIAL.
In the joint brief of argument of 1st and 2nd Respondents prepared by Olumuyiwa Akinboro, three issues were drafted for determination. –
Q (Guidelines) as published formed the basis of the
contract between the Appellant and if it does, what is
the effect of non-compliance with same on the sale of
Plot 565, Flat 2, Durban Street, Wuse II, Abuja.
B (letter of offer) can be validly accepted with
compliance with Exhibit Q and in view of suppression of
material fact by the Appellant.
3. Whether the Appellant has established her case on the preponderance of evidence adduced before the court.
The issues formulated by both parties are similar. However, the Appellant's issues 3 and 4 can be subsumed in the Respondents' issue three. I will therefore adopt the Appellant's Issues one and two and the Respondent's issue three for the determination of this appeal.
WHETHER THE LETTER OF OFFER (EXHIBIT B) WAS A CONDITIONAL OFFER AND IF NOT WHETHER THE SAID THE LEASE (LETTER OF OFFER) IS EX-FACIE NOT ILLEGAL BUT VALID AND ENFORCEABLE CONTRACT.
"1. The Letter of Offer (Exhibit B) was made conditional only to the Acceptance by execution of same and returning of duplicate within 14 business days from the date thereof.
2. The Acceptance of the Offer makes the Offer a binding contract between the parties obligating the Lessee to fulfilling other conditions precedent for the purchase of the Property. These conditions were the payment of the price within the timeline so stipulated as well as acceptance for the purchase to be regulated by other covenants to be prescribed in a Deed of Lease or imposed by law."
It is counsel's contention that Exhibit B was not a conditional offer subject to Exhibit Q rather that Exhibit B was properly accepted by complying with the condition of returning the letter of offer along with non-refundable deposit thus a binding agreement - consummate contract legally been reached between the parties. Any attempt to withdraw Exhibit B, he argued would constitute a breach of contract. He submitted that once there is an offer and acceptance coupled with consideration - Dankula v. Shagamu (2008) 27 WRN 107 at 114, Thomas v. Olufosoye (2004) 49 WRN 37 at 52. The learned trial Judge he submitted was "rewriting the contract for the parties" which he had no power to do by imputing clause 2 of Exhibit B to pertain to 'pre-existing terms and conditions'. The duty of the court he argued strenuously is to interprete the contract between the parties and not to formulate one - DSADP v. Ofonye (2007) 47 WRN 35 at 38; Abuja v. Trans-National Mkt v. Abdu (2008) 1 WRN 43 at 54.
It is the Respondents' contention that the failure of the Appellant to disclose the fact of her owning a house in Lagos amounts to non-disclosure of material fact which ab initio constitutes a fraudulent misrepresentation thereby rendering the contract of sale voidable at the instance of the innocent party, the Respondents. The Appellant's contention that her application predated Exhibit Q cannot avail her for failure to tender her application presupposes that same is adverse to her claim. He relied on Section 148(d) of the Evidence Act and Agbi v. Ogbe (2005) 8 NWLR (Pt 926) 40 at 66. So also is the failure to call Abass Umar whom Appellant said advised her to relinquish the house in Lagos in order to complete the process of the purchase of the disputed house in Abuja. Apart from this, the Respondents also contend that Appellant's testimony concerning relinquishing her house in Lagos is contradictory. In one breadth she said she relinquished it based on Abass's advice while in the other she said it was to reduce her risk of travelling to Lagos frequently. A party who adduces inconsistent evidence damages his case - Al-Rissach P.P. Co. Ltd v El-Houssein (2008) 14 WRN 28 at 85.
WHETHER THE APPELLANT HAS ESTABLISHED HER CASE ON THE PREPONDERANCE OF EVIDENCE.
canvassed Exhibit Q not to carry the force of law as to
invalidate (make illegal) the contract between parties
but Learned Trial judge decided otherwise even though
she aligned with plaintiff/appellant's position.
2. Plaintiff/appellant canvassed Exhibit Q being a mere guidelines (and not law) it could be waived as did (Abass Umar) defendant/respondent but LTJ decided otherwise and ruled that its breach was fatal and incurable as Abass Umar no matter his position could not override it.
3. The plank of defendant/respondent's case was that the contract was tainted with illegality by the disqualification of plaintiff/appellant by the provisions of a law (Exhibit Q-guidelines). They however failed to plead 'illegality' or prove it as required by case law.
4. The strength of defendant/respondent case was premised upon the fact that plaintiff/appellant was required or expected to disclose her previous ownership of a Fed. Govt. property (Lagos house). This was pleaded and argued but no evidence led to prove such averment.
averred and canvassed plaintiff/appellant to have known
of the existence of Exhibit Q at the time of her
expression of interest in April 2005, but evidence
adduced shows Exhibit Q to have been published in August
2005, some 4 good months subsequent to plaintiff's said
6. The LTJ disregarded the clear and positive evidence (both uncontroverted viva-voce and Exhibit N) that the relinquishment of Lagos house by plaintiff/appellant was suborned by defendant/respondent (Abass Umar) and accordingly sustaining the argument of 'promissory estoppels and waiver'. The LTJ rather chose to speculate the lack of such proof as per her reference to the contents or lack of it of Exhibit J.
7. The LTJ fatally disregarded the clear and positive evidence of the legal rights of lawful occupation possession of property including contractual acquisition of same by plaintiff/appellant as against the illegality of her (lock out) and eventual forcible eviction from her own property under surreptitious circumstances and whilst the suit was still pending (lis pendis). It is this error that led the LTJ to decide that plaintiff/appellant's locked out or eviction tantamount a completed act for which there was no relief.
7.2 In addition to arguments supporting the preceding 3 Grounds of Appeal, the several and joint effect of the foregoing particulars inevitably led the LTJ to a perverse judgment. And it is trite that a perverse judgment is a justifiable reason for an appellate court like this one to interfere with the judgment of a trial court and replace same with an appropriate and just decision. We respectfully call on this honourable court to do likewise."
The Respondents in responding
to issue 3 also practically summarized the arguments on
issues one and two. The totality of the submission is to
the effect that it is the duty of the Appellant to
succeed on the strength of her case and not to rely on
the weakness of the Respondent's case but she totally
failed to prove her case before the lower court - Agbara
v. Owa (2004) 13 NWLR (pt 889) 2 at p. 4.
(d) Intention to create legal relations
(e) Capacity to contract.
All these five attributes must co-exist
before as a contract cannot be formed if any of the
ingredients is absent. - Orient Bank (Nig) PLC v.
Bilante Int'l Ltd (1997) 8 NWLR (pt. 515) 37 at 76
paras B-C; Green Finger Agro-Ind Ltd v. Yusuf (2003)
12 NWLR (Pt. 835) 488 at 508, Omega Bank (Nig) PLC v.
O.B.C. Ltd (2005) 8 NWLR (Pt. 928) 547, Amana Suites
Hotels Ltd v. PDP (2007) 6 NWLR (Pt. 1031) 453, Yaro
v. Arewa Const. Ltd (2007) 17 NWLR (Pt. 1063) 333 at
We refer to your Expression of Interest to purchase the property owned by the Federal Government of Nigeria situate at Plot 563 Flat 2 Durban Wuse 2, Abuja, FCT and more particularly described in 'Schedule A" hereto, together with all appurtenances, rights, rights of way, easements, reversionary rights and privileges related thereto ("the property") and are pleased to offer the Property to you for sale as herein indicated.
letter shall constitute the Terms of Offer from the
Federal Capital Development Authority (FCDA) on behalf
of the Federal Government of Nigeria ("the Lessor"), and
upon execution, the Acceptance by you (the "Lessee") to
purchase the Property from the Lessor, on such terms and
conditions as are more particularly set forth below:
1. The Lessee shall signify acceptance of this letter and the Terms contained herein, by the execution of same and the enclosed duplicate, within a period of Fourteen (14) days from the date hereof.
2. At the Closing Date as hereinafter defined under Clause 5(a) the Lessee shall purchase the Property, subject to any conditions contained in a Deed of Lease or imposed by any law.
3. The purchase price of the Property shall be N3, 500,000 (Three Million Five Hundred Thousand Naira only) payable in no more than three installments, each by bank draft as follows:
enclosure of a bank draft, with the executed duplicate
copy of this letter, in the sum of N350,000 (Three
Hundred and Fifty Thousand Naira only), representing 10%
of the aforementioned purchase price, being a
non-refundable deposit for the purchase of the Property
payment of a sum not less than 10% of the said purchase
price, within Ninety (90) days of the payment under (a)
full and final payment of the balance of the purchase
price due, within a period of Ninety (90) days of the
payment made under (b) above.
Lessor shall not grant any extension of the timelines
HOWEVER THAT the Lessee shall be at liberty to make any
of the aforementioned payments, including the full and
final payment at any time before the Closing date, and
in that instance, may make the full payment in one (1)
or two (2) installments.
In the event of the Lessee failing to comply with
the payment terms outlined in (3) above, this
transaction shall be voided and the Lessee shall forfeit
to the Lessor, the initial deposit of 10% and in
addition thereto, (s)he shall be responsible for the
payment of all costs and charges associated with the
5. The Lessee's acceptance of this Letter shall constitute an undertaking on his/her part that:
shall pay the full purchase price, as stipulated in (3)
above, being the current valuation of the Property,
within a total period of One Hundred and Ninety-four
(194) days of this Letter, being the "Closing Date", and
in accordance with the timelines stipulated in (3)
and at the Closing Date, all common areas and shared
facilities (such as in premises of estates, block of
flats, terrace houses, etc) shall be the joint
responsibility of the bona fide co-purchasers for value,
for purposes including, without limitation, cooperation
for obtaining all such approvals and licenses are
necessary, facility management, insurance, taxation,
charges, utilities, safety, maintenance, public use and
liability and such other necessary incidentals;
abide by all relevant planning, environmental, health
and safety laws, rules and regulations, including but
not limited to all conditions, which may from time to
time be required and or stipulated by the FCDA or other
Municipal Administration; and
shall adhere strictly to developmental control standards
and use his/her best and reasonable endeavors to ensure
that no additional structures are erected without the
written approval of the Development Control Department
of the FCDA.
6. The Lessee hereby agrees and understands that time is of the essence in the performance of each of the conditions aforementioned, which conditions constitute valid and binding obligations enforceable according to the terms set out.
letter, and the obligations therein contained, shall be
governed and construed by and in accordance with the
Laws of the Federal Republic of Nigeria.
indicate your acceptance of this offer by executing this
Letter (and the duplicate enclosed herewith), dating
same in the space provided therefore, and returning same
along with the non-refundable deposit to the Ad-Hoc
Committee on the Sale of FGN Houses, Room 109, Ministers
Block, FCDA Secretariat, Area 11 Garki, at which time
the Offer and Acceptance become a binding agreement, in
commitment to the fulfillment of the conditions
The Offer shall be deemed to have been withdrawn at the close of business or the Fourteenth (14th) day following the date hereof, unless prior thereto, the Lessor shall have received a written, valid Acceptance, in satisfaction of all conditions precedent, from the Lessee."
"The Plaintiff avers that she does not, either now or before her expression of interest to purchase the House, know of any, such 'guidelines' alluded to in (sic) by defendants in their letter aforesaid."
The Respondents in their Statement of Defence joined issues on this fact with the Appellant. By their paragraph 2 of the Statement of Defence, they denied inter alia, paragraph 19 of the Statement of Claim and put the Plaintiff to the strictest proof thereof. Apart from this, they made some specific averments to the effect that the Appellant ought not to have applied for a house in Abuja since she was occupying Government Quarters in Lagos, See paragraphs 3(h), (i), (j) and (k) reproduced hereunder for ease of reference.
"3(h) That at the time
when the offer was made to the Plaintiff, the Adhoc
committee on Sale of Federal Government Houses had no
knowledge that the Plaintiff was in occupation of
Government Quarters in Lagos, as the Plaintiff did not
disclose this to the Committee as was expected of her.
(i) That clause 10 of the approved guidelines for the sale of Federal Government Houses in the FCT to Career Public Servants clearly stipulates that each and every public servant shall be entitled to purchase only on residential until whilst any and all allocated and occupying government houses in Lagos are specifically excluded from purchasing houses in the FCT. The said Approved guidelines is hereby pleaded.
line with the guidelines referred to in paragraph i
above, the Plaintiff ought not to have applied for a
house in Abuja since she is occupying Government
Quarters in Lagos. Her application was therefore wrong.
(k) The Ad hoc Committee on Sale of Federal Government Houses, having discovered the dual interest of the Plaintiff in both official residences, therefore withdrew the Plaintiffs offer."
Despite these specific, immaterial and incriminating pleadings of the Respondents, the Appellant did not file a Reply to plead the specific date she forwarded her application of interest to the Respondents. This is pertinent especially because her pleading as to when she made her application in paragraph 6 of her Statement of Claim is vague. Paragraph 6 states thus –
"6. Plaintiff avers that sometime in 2005 when the sale of Federal Government properties commenced, she applied to buy the entire flat, i.e. Flat 2, Plot 563, Durban Street, Wuse II Abuja ('the House').
Worse still, even though in
her evidence, the Appellant testified that she has her
copy of the application sent to FCDA (Respondents) she
never tendered it! (See last line of page 99 of the
Record of Appeal). It is obvious that the production of
the Appellant's application is crucial to her case; yet
she failed to tender it. The presumption of intention of parties
is that a man is presumed to intend all the
consequences likely to flow from his conduct. If some
evidence is material to a party's case and he is in a
position to produce the evidence and he fails to do
so, then it is deemed that his failure to produce same
is an intended and premeditated act because the
evidence if so produced will be adverse to his case.
Section 148(d) of Evidence Act now Section 167 (d) of
Evidence Act, 2011 provides -
"The Court may presume the existence of any fact which it deems likely to have happened, regard shall be had to the common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case, and in particular case, and in particular the court may presume that –
that the evidence which could be and is not
produced would if produced be unfavourable to the
person who withholds it."
I am in agreement with the submission of
the Respondents that failure to tender the application
presupposes that same would have been adverse to her
claim if tendered. In the cited case of Agbi v. Ogbeh
(supra) the Court of Appeal held thus -
"By virtue of S. 149 (d) of Evidence Act, any evidence which could be produced by a party but is not produced, would be presumed to be unfavourable to the party who failed to produce the evidence, more so, if the evidence is crucial to the case that would clarify whatever ambiguities which may exist in the case and the failure to adduce the evidence is not explained."
At this juncture, it is necessary to set out some salient CLAUSES in the guidelines, Exhibit Q (pages 63-65 of the Records)
OF THE FEDERAL REPUBLIC OF NIGERIA 1999
Approved Guidelines for the sale of Federal Government Houses in the FCT to Career Public Servants
The Federal Executive Counsel has approved
guidelines for the sale of ALL RESIDENTIAL FACILITIES
(houses, flats, etc) built, acquired or otherwise owned
by the Federal Government and ALL its ministries,
departments and agencies except those listed in
paragraph 4 below.
The houses will be sold on "as is, where is"
basis at the evaluated price with the current occupants
having the first right of refusal to purchase within
thirty days of offer. The said right to purchase is
neither transferable, assignable nor alienable in any
way or form.
Sale of houses will be advertised and application
fees of N10, 000.00 (Ten Thousand Naira Only) must
accompany each FREE application form, payable at
designated banks. The banks will remit all proceeds to a
dedicated account in the name of the Federal Government
of Nigeria with the Central Bank of Nigeria.
every public servant shall be entitled to purchase only
one residential unit with any and all allocated or
occupying government houses in Lagos are specifically
excluded from purchasing houses in the Federal Capital
12. A purchaser must complete application forms with receipt of payment of N10,000 in favour of the Federal Capital Territory Administration along with the following:
of initial employment into the Public Service of the
last appointment/promotion in the Public Service of the
of allocation of quarters by an Appropriate Authority,
No. high resolution colour Passport Photographs, and
of last 6 (Six) Months Rent Deduction.
percent of purchase price (including non-refundable
deposit of 10 percent), up to a maximum of N5 million
(National Housing Fund lending limit), must be paid to
the Federal Government of Nigeria within 90 days.
75 percent must be paid by all purchasers within an
additional 90 days; thus, all purchasers must effect
full payment within 180 days of contract.
15. The transaction shall be concluded within 210 days of an offer to the allottee, occupant or successful bidder as applicable.
Exhibit Q is dated 1st April
2005. It is noted from records, pleadings and evidence
that the Appellant complied with all the other
"conditions of sale" apart from clause 10 which made her
not qualified for the purchase of any house in Abuja,
because of the quarters allocated to her in Lagos since
1997 (see paragraph 4 of her statement of claim at p. 3
of the Records). It is thus significant to note that the
Appellant had all along been living in Lagos but out of
compassion, the office allocated a single room in a 3
bedroom flat at Plot 563, Durban Street, Wuse II, Abuja,
the House in dispute when she was transferred to Abuja
(see p. 3 paragraph 5 and 6 of the Statement of Claim at
page 3 of the Record). It was therefore in line with
clause 6 of Exhibit Q which stated that "the houses
will be sold on, as is, where is basis at the
evaluated price with the current occupants having the
first right of refusal..." That made the Applicant
applied for this House. The only logical deduction that
can be made is that the Appellant was aware of the
guidelines in Exhibit Q, which is dated 1st April 2005,
before she forwarded her application to the Respondents.
As submitted by Mr. Akinboro, it is the publication of
the guidelines that brought the existence of the Scheme
to the knowledge of the Appellant and it was also
pursuant to same that the Appellant applied and paid the
prescribed application fee and non refundable deposit of
10% of purchase price and subsequent payments in
compliance with Clauses 8, 12, 13, 14 and 15 of Exhibit
As stated earlier, the letter of offer is a conditional offer. Clause 2 of Exhibit import "Conditions... imposed by any law." Exhibit Q for the purposes of the sale of Government properties is the law referred to in Clause 2 of Exhibit B. Learned counsel for the Appellant made a heavy weather on Exhibit Q contending that it is not law and it does not have the force of law therefore it has no invalidating effect on the contract. I do not agree with him. The heading of Exhibit Q evinces the fact that Exhibit Q is an instrument of law. The relevant portions of Exhibit Q, which includes the heading have been reproduced earlier. A glance at same shows that Exhibit Q, which is "PUBLIC NOTICE NO 1" has as its heading - "FEDERAL CAPITAL TERRITORY ACT, CAP. F6, LFN 2004," which is its enabling law. As rightly expatiated by Akinboro Section 14 of FCT, Act empowers the President to make regulations generally for carrying into effect the provisions of FCT Act. These powers were delegated by the President to the Minister of Federal Capital by S. 18 of the Act. These guidelines published as "PUBLIC NOTICE NO 1" - Exhibit Q, were made by the Minister pursuant to the powers conferred on him by Section 18 of the FCT Act. The Interpretation Act, Cap 192, LFN 1990 defines law to include instrument made under a law-
"Means any law enacted or having effect as if enacted by the Legislative of a State and includes any instrument having the force of law which is made under a law."
The Black Law Dictionary (6th Edition) at
page 884, inter alia defines law thus -
"Law, in its generic sense, is a body of
rules of action or conduct prescribed by controlling
authority, and having binding legal force...."
However, whether Exhibit Q is
law in the strict sense of it or not is immaterial. The
whole argument of the learned counsel for the Appellant
is that Exhibit Q not having the force of law cannot
invalidate the contract since the contract was not
illegal ex-facie. This submission in my opinion is of no
moment. The court did not hold that the contract was
tainted with illegality by the disqualification of the
Appellant by the provisions of Exhibit Q. what the court
held is that Exhibit B, the contract between the parties
was made subject to the provisions of Exhibit Q. the
holding of the
learned trial Judge at page 123 lines 10-12
"....the Plaintiff is presumed to be aware that her bid made sometime in April 2005 had been automatically invalidated by the terms as contained in the guidelines as published."
The cases of WCC's Ltd v. Batalha (2006) 40 WRN 97 at 100 and Total Nig Plc v. Ajayi (2004) 22 WRN 16 cited by Mr Musa for the Appellant is therefore inapposite to the facts of this case.
"Where documents form part of a long drawn transaction such as in the instant case, they should not be interpreted in isolation but in the context of the totality of the transaction in order to fully appreciate their legal purport and impact. That is the only way to find out and determine the real intention of the parties. A restrictive and restricted interpretation which does not take cognizance of the total package of the transaction in which the documents are integral part cannot meet the justice of the case."
In this appeal, the parties
are supposed to look beyond Exhibit B simplicita to
other documents imported by Clause 2 of Exhibit B the
guidelines in Exhibit Q contain the rules and
instructions governing the sale of government houses by
the Federal Government, represented by the Respondents.
They form part of the contract of sale between the
prospective or intending purchasers and the Respondents.
They constitute part of the terms and conditions of the
offer incorporated by clause 2 of the Letter of Offer
Exhibit B. Clause 10 of Exhibit Q is the relevant term
in this appeal.
"Each and every Public Servant shall be entitled to purchase only one residential writ whilst any and all allocated or occupying government house in Lagos are specifically excluded from purchasing houses in the Federal Capital Territory."
The purport and/or intention of Regulation 10 of Exhibit Q is not disputed. The passionate contention of the Appellant is her application predated Exhibit Q and therefore Regulation 10 of Exhibit Q cannot properly be made to govern the contractual transaction between her and the Respondents. I have earlier held that in the circumstances of this case, the Appellant is deemed to have been aware of Exhibit Q before she forwarded her application of interest to purchase the House to the Respondents. Assuming (without conceding) that she was not aware of Exhibit Q at the time of her application, however it is crystal clear from evidence on record that Exhibit Q come into existence before the offer, Exhibit B was made to the Appellant and before the Appellant accepted the offer. Exhibit Q which came into effect on 1st April 2005 was published on 15th August 2005. The law is clear that publication of any fact in an official Gazette constitutes a Notice to the whole world - Osita C. Nwosu v. Imo State Environmental Sanitation Authority & Ors (1990) 2 NWLR (Pt 688) 621. The Appellant is therefore deemed constructively to be aware of the contents of Exhibit Q from the date of publication, being 15th August 2005. It is now pertinent to take cognizance of the date that offer - Exhibit B was made to the Appellant on 26th September 2005, this is definitely after the publication of Exhibit Q. the Appellant is therefore deemed to be aware of Clause 10 of Exhibit Q which made the Appellant not qualified to apply for a house in Abuja. The pertinent question is - what offer did she accept?
"An acceptance of an offer is the
reciprocal act or action of the offeree to the offeror
in which he indicates his agreement to the terms of
the offer as conveyed to him by the offeror. Putting
it in another language acceptance is the act of
compliance on the part of the offeree with the terms
of an offer. It is the element of acceptance that
underscores the bilateral nature of a contract. An
acceptance of an offer may be demonstrated (a) by
conduct of parties or (b) by their words or (c) by
documents that have passed between them."
See also Orient Bank (Nig) PLC v. Bilante International Ltd (1997) 8 NWLR (Pt 515) 37 at 77.
"The person who seeks to enforce his right under a contractual agreement must show that he has fulfilled all the conditions precedent and that he has performed all these terms which ought to have been performed by him. In an action for specific performance of an agreement, the plaintiff must fail if there is a default on his part to discharge obligations under the contract."
The learned trial Judge was right to have dismissed the Appellant's case. This appeal is totally devoid of merits. It is hereby dismissed. Parties are to bear their costs.
The Appellant expressed interest to purchase Plot 563, Flat Durban Street, Wuse II, Abuja now the subject matter in dispute from the respondents. The respondents did not hesitate to make an offer by letter dated 26th September, 2005 and addressed to the appellant. The letter to the appellant was specific:
"...This letter shall constitute the Terms of Offer from the Federal Capital Development Authority (FCDA) on behalf of the Federal Government of Nigeria. ("the Lessor"), and upon execution, the Acceptance by you (the "Lessee") to purchase the property from the Lessor, on such terms and conditions as are more particularly set forth below... 2. At the closing date as hereinafter defined on the clause 5(a) the Lessee shall purchase the property, subject to any condition contained in a Deed of Lease or imposed by any Law..."
The offer to sell the property
to the appellant was "subject" to
conditions precedent which MUST be fulfilled for the
conditions offer to become absolute.
"As has been observed by Mr. Egonu the
Practice Directions have been issued as part of the
rules of practice of the Court of Appeal. They cannot
have any more pervasive application than the Rules of
the Court themselves. It is expressly provided in
Section 227 of the 1979 Constitution as follows:
"227. Subject to the provisions of any Act of the National Assembly, the President of the Court of Appeal may make rules for regulating the practice and procedure of the Court of Appeal.
The parties might execute or append their respective signatures to a lease agreement but if not in accordance with the terms "imposed by any law" as stipulated under clause 2 of the "Letter of offer," it cannot be heard to be argued by the appellant that an enforceable lease agreement had been concretised, a breach of which will entitle the appellant to found an action against the respondents. This is made clearer by clause 2 of the letter offering the property for sale to the appellant to wit:
"7. This letter, and the obligations therein contained, shall be governed and construed by and in accordance with the Laws of the Federal Republic of Nigeria.
indicate you acceptance of this offer by executing
this Letter (and the duplicate enclosed herewith),
dating same in the space provided therefore, and
returning same along with the non-refundable deposit
to the Ad-Hoc Committee on the Sale of FGN Houses,
Room 109, Ministers Block, FCDA Secretariat, Area 11
Garki, at which time the Offer and Acceptance become a
binding agreement, in commitment to the fulfillment of
the conditions precedent.
The Offer shall be deemed to have been withdrawn at the close of business or the Fourteenth (14th) day following the date hereof, unless prior thereto, the Lessor shall have received a written, valid Acceptance, in satisfaction of all conditions precedent, from the Lessee."
The word "Guidelines" which the appellant pleads in paragraph 19 of the statement of claim she knew nothing about before or after her letter to the respondent simply means "rules or instructions that are given by an official organization telling you how to do something, especially something difficult." See Oxford Advanced Learner's Dictionary, 7th edition, page 663.
In Customs and Excise vs. Barau (1982) NCR (Pt. 2) 1 the Supreme Court was faced with a similar situation. Fatayi-Williams, C.J.N. held at pages 21-23 of the judgment as follows:
"In view of the above, I am not surprised
that the learned Chief Judge disbelieved the belated
testimony of the respondent that he had no knowledge
of the prohibition order or that he had no fraudulent
intent to evade the prohibition order or be concerned
in the said evasion.
Having made his finding, correctly in my opinion, on the basis of the evidence adduced before him, and bearing in mind that he was the only person in a position to assess the credibility of the respondent from his demeanour in the witness-box and otherwise, it is not open to the Federal Court of Appeal to substitute its own assessment of the respondent's testimony for that of the learned Chief Judge. The Federal Court of Appeal is certainly in error in so doing.
In Akinloye vs. Eyiyola (2) this Court
held (1968) NMLR at 98 that:-
"Where a Court of trial unquestionably evaluates the evidence and appraises the facts, it is not the business of a Court of Appeal to substitute its own views for the views of the trial Court."
I join my learned colleague TINUADE AKOMOLAFE-WILSON, JCA in dismissing this appeal. I abide by the orders made therein.
I had a preview of the judgment just delivered by my learned brother, Tinuade Akomolafe - Wilson, JCA.
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