IN THE COURT OF APPEAL OF NIGERIA
On Tuesday, The 13th day of May, 2014
CA/AK/130/2012
BETWEEN
CLEMENTINA M. OGUNNIYI ................. Appellant
V.
HON. MINISTER OF FCT & ANOR. .............. Respondents
APPEARANCES
Baba-Panya Musa Esq. with A. I. Chidi Esq., A. K Abdullahi Esq. and Eslisha Wambai Esq. for Appellant
Olumuyiwa Akinboro Esq., with him Kenneth Iweka Esq., Onaiwi Otukunmn Esq., Tunde Arowolo Esq and Remi Okunbor Esq. for 1st and 2nd Respondents
MAIN JUDGMENT
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.
On 31st May 2007, the Appellant as Plaintiff instituted an action against the Respondents for the following reliefs:
(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.
The Appellant's case is that sometime in April 2005, she applied and was given a right of refusal offer of sale of the house in dispute by the Respondents for the sum of N3, 500,000. She made the first installment payment of 10% of N350, 000.00. However, by a letter dated 26th March 2006, she received a letter from the Respondents inviting her to clarify certain pertinent issues concerning the transaction. According to her, she met with one Abass Umar (an officer of Ad-HOC Committee for the Sale of FGN Houses - an agency of the Respondents) who hinted her that the problem had to do with her retention of an official government house in Lagos and advised her to relinquish it for her to be eligible for the house in Abuja in accordance with the guidelines governing the sale of FGN houses, which she claimed not to be aware of. Despite her relinquishment of the Lagos property and further payment of second 10% installment and the procurement of a loan of N2,800,000 from Aso Savings to complete the purchase of the house the offer was eventually withdrawn, thereby invalidating the Appellant's purchase of the house. She contended that all her plea to the Respondents to rescind its decision was futile hence this suit.
It was the Respondents' case that sometimes in March 2005, a committee was set up to dispose off some of Federal Government properties and a guideline, Exhibit Q was published and gazetted to that effect, 'Clause 10' of which excludes Lagos FGN house owners from buying FGN houses in Abuja. When the Committee discovered that the Appellant was still retaining her apartment in Lagos at the time of the offer for the purchase of the Abuja house, they were compelled to terminate the offer of first refusal made to the Appellant for the purchase of the Abuja house.
The Appellant, dissatisfied with the dismissal of her case by the lower court, filed a Notice of Appeal containing four grounds.
In accordance with the rules of this court, parties filed their briefs of argument. The Appellant, in her brief, settled by Baba-Panya Musa, formulated four issues for determination, namely
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.
2. WHAT IS 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.
1. Whether exhibit 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.
2. Whether Exhibit 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.
Issue One and Two
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 learned counsel for the Appellant, while reproducing the relevant clauses of Exhibit B submitted forcefully that there are two distinct conditions prescribed therein. According to him, the first condition pertains to the "offer" itself while the second condition concerns the "purchase of the property under offer." Counsel contends that the two conditions are
"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.
On Issue two, it was contended for the Appellant that Exhibit Q is mere guidelines which does not have the force of law and cannot therefore invalidate a binding contract. Without conceding, it was further argued that assuming Exhibit Q has the status of law, it can still not invalidate the contract because the contract ex facie is not illegal and the issue of illegality was not pleaded by the Respondent - WCC Ltd v. Batallha (2006) 40 WRN 97 at p.100. The averment that the application of the Appellant [is] "wrong", he submitted, is not tantamount to illegality.
In response to issues one and two, the learned counsel for the Respondents re-stated the necessary ingredients for a valid contract as enunciated in the case of Omega Bank (Nig) PLC v. O.B.C. Ltd (2005) 8 NWLR (pt. 928) 547 at 552 whole submitting that Exhibit B, the letter of offer was invalid ab initio for failure to comply with the prerequisites for a valid acceptance. He referred to clause 2 in Exhibit B which stipulated that the "Lessee shall purchase the property subject to any conditions contained in a Deed of lease or imposed law." According to him, Exhibit Q is law within the provisions of clause 2 of Exhibit B. In response to Appellant's submission that Exhibit Q is mere guidelines with no force of law, Mr. Akinboro submits thus
"... Section 14 of the Act empowers the President to make regulations generally for carrying into effect the provisions of this Act and the President in Section 18 of the Act delegates to the Minister of Federal Capital Territory power exercisable by him. Exhibit Q was made by the Minister of Federal Capital Territory pursuant to the powers conferred on him by Section 18 of the Act. Thus, the guidelines having been made pursuant to an Act of National Assembly qualifies as law for the purpose of Clause 2 of Exhibit B. Having said this, the validity of Exhibit B is subject to the condition precedent contained in Clause 10 of Exhibit Q."
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.
Issue Three
WHETHER THE APPELLANT HAS ESTABLISHED HER CASE ON THE PREPONDERANCE OF EVIDENCE.
As said earlier, the Appellant's issues 3 and 4 are subsumed in the issue quoted above. The argument on both issues in my view are summarized under their issue four thus
"1. Plaintiff/Appellant's counsel 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.
5. Defendant/Respondent equally 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 application.
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.
In my view, the main issue in this appeal is very narrow. The fulcrum of this case is whether there was a valid contract between the parties that was unlawfully repudiated by the Respondents. This being the case, I will take all the issues together.
(a) Offer
(b) Acceptance
(c) Consideration
(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 377- 378.
The letter of offer for the purchase of the house is at pages 33-36 of the Record of Appeal. For ease of reference, relevant portions are reproduced hereunder
"Letter of Offer
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.
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:
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:
a. The 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
b. the payment of a sum not less than 10% of the said purchase price, within Ninety (90) days of the payment under (a) above; and
c. the 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.
d. The Lessor shall not grant any extension of the timelines stated herein.
PROVIDED 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.
4. 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 transaction.
5. The Lessee's acceptance of this Letter shall constitute an undertaking on his/her part that:
a. (s)he 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) above;
b. where pertinent 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;
c. (s)he shall 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
d. (s)he 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.
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.
Kindly 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 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."
It is crystal clear from the wordings of Exhibit B that the offer is subject to fulfillment of some conditions. It is therefore a conditional offer. This much was admitted by the Appellant. However, his argument is that the first condition is limited only to accepting the offer by returning the acceptance forms within the 14 days prescribed period, in my view is fallacious. Mere acceptance of the offer by returning the duplicate copy attached to Exhibit B within the 14 days simplicita, does not amount to a binding contract between the parties.
The "offer" cannot stand in vacuo. It is an offer for the purchase of a property hence all the conditions for the purchase of the property must be read together and complied with before it can be said that there is valid offer, properly accepted and a legally binding contract between the parties. The condition for the purchase of the property cannot stand on its own as contended by the Appellant. The offer conveyed to the Appellant by Exhibit B includes convenience prescribed in a Deed of Lease or "imposed by law".
The learned counsel for the Appellant has argued vehemently that at the time the Appellant forwarded her expression of interest for the purchase of the property Exhibit Q, the guidelines had not been published. The Appellant he argued could not at that time have been aware of clause of Exhibit B that an occupier of a house in Lagos is excluded for bidding for the purchase of any property in Abuja. That maybe so if proved.
The Appellant was the plaintiff at the lower court. In civil cases, the onus of proof is placed on the Plaintiff. He is to prove his case by preponderance of evidence. The Plaintiff is to rely on the strength of his own case and not to depend on the weakness of the defendant's case. It is his duty to plead and prove every material fact that is necessary by credible audience for the success of his case.
The issue of the persons qualified to purchase property in Abuja is a very relevant fact in the case before the court. Thus it is very material for the Plaintiff to plead and prove the fact of whether she was aware of the terms and conditions in the offer before she applied for the purchase of the property in Lagos. By the provisions of Section 136(1) of the Evidence Act
"The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence..."
See Adighije v. Nwaogu (2011) 12 NWLR (Pt. 1207) 419 at 457-458. The burden of proof is placed on the Appellant to plead and prove that before her expression of interest to purchase the House, she was not aware of the guidelines that is Exhibit Q. This she pleaded in paragraph 19 of her statement of claim -
"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.
(j) That in 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
(d) 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