Contract

Before Their Lordships

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Before Their Lordships

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Before Their Lordships

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MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgement): This appeal is against the decision of the Court of Appeal, sitting at Ilorin, Coram: Aboyi John Ikongbeh, Tijjani Abdullahi and Helen Moronkeji, Ogunwumiju JJCA on 31st May, 2006.

Judgment

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment) : This appeal is against the ruling of the High Court of Delta State sitting at Effurun (the lower Court) delivered on 1/6/2017 in Suit No. EHC/161/2017 by Gbemre, J. In the ruling, the lower Court upheld the preliminary objections filed by the 1st and 2nd respondents against the suit filed by the appellant on the basis that the dispute between the parties ought to be submitted to arbitration as stipulated in the agreement governing their relationship. The lower Court therefore struck out the suit.

Aggrieved by the decision, the appellant appealed to this Court by the means of a notice of appeal filed on 30/6/2017, which notice was amended by the leave of this Court granted on 8/2/2021. ​The facts of the case that led to this appeal as are relevant to the issues to be discussed in this judgment are that the appellant was engaged by the 1st respondent to construct a proposed College of Science for it. The contract was governed by Articles of agreement and conditions of service.

The appellant stated that it completed the job and the 2nd respondent, the architect, engineer and planner engaged by the 1st respondent for the job, submitted the architect’s final certificate to the (1st) respondent in favour of the appellant. The said certificate certified the sum of N51,572,556.39 as being due to the appellant. Upon default of payment, the appellant wrote a demand notice to the (1st) respondent. When payment was not made, the appellant filed a writ of summons accompanied by a statement of claim in which it claimed monetary reliefs against the respondents.

The appellant also applied for summary judgment against the respondents. In response, the 1st respondent entered a conditional appearance and filed a notice of preliminary objection praying the lower Court to dismiss or strike out the suit on the grounds that the suit was incompetent and that the lower Court lacked the jurisdiction to entertain the same.

The 1st respondent subsequently filed a notice of intention to defend, an affidavit disclosing a defence on the merit, a statement of defence and a motion for extension of time within which to file the said processes. ​ The 2nd respondent on his part filed a statement of defence, witness deposition and a notice of preliminary objection to the suit, among other processes. The processes were filed on the same date.

The lower Court received argument in respect of the preliminary objections and ruled that by clause 7 of the agreement between the parties, which is an arbitration clause, the appellant was bound to submit the dispute to arbitration before approaching the Court. It therefore struck out the suit. P. N. Agazie, Esq., of counsel for the appellant formulated the following issues in his amended brief of argument for the determination of the appeal: a.

Whether the learned trial judge was right when he considered and analysed only the 1st and 2nd respondents’ notice of preliminary objection but failed to consider the appellant’s replies on points of law to the 1st and 2nd respondent’s notices of preliminary objection. b. Whether, considering the peculiar circumstances of the case of the parties at the lower Court, the learned trial judge was right when he held that failure on the part of the appellant to first resort to arbitration ousted the jurisdiction of the lower Court. c.

Whether, the learned trial judge was right when he considered as proper the notices of preliminary objection filed by the 1st and 2nd respondents even though the 1st and 2nd respondents have taken steps in the proceedings at the lower Court by filing their statement of defence. d.

Whether the learned trial judge acted in the interest of justice when he struck out the appellant’s case, instead of entering judgment in favour of the appellant in the obvious absence of any documentary evidence filed by the respondents to show or establish a defence on the merit, having regards to the entire circumstances of the appellant’s contractual relationship with the 1st respondent. Chidi Chikogu, Esq., for the 1st respondent presented the following issues for the determination of the appeal: 1).

Whether under the contract, there was a period provided for parties in the contract to refer any matter to arbitration. (Grounds 1 and 2 of amended notice of appeal) 2). Whether in consideration of the provisions of Article 7 of the articles of agreement and the arbitration clause in Exhibit B the lower Court was right howsoever, in declining jurisdiction to entertain the appellant’s suit and referring same to arbitration. (Ground 3 of amended notice of appeal) 3).

Whether the learned trial judge acted in the interest of justice when he struck out the appellant’s case, instead of entering judgment in favour of the appellant in view of a preliminary objection and defence on the merit. (Ground 4 of amended notice of appeal).

Agebe Odeh, Esq., for the 2nd respondent formulated a single issue for the determination of the appeal, to wit: “Whether the trial judge was right when he considered and analysed the 1st ground of the 2nd respondent preliminary objection without considering and making a pronouncement on the 2nd ground.” The 3rd respondent did not file a brief of argument. Issue 1 formulated by 1st respondent’s counsel does not arise from grounds 1 and 2 of the grounds of appeal from which the issue is said to arise.

Ground 1, shorn of its particulars, reads: a) ERROR IN LAW The learned trial judge erred in law when he held thus; “In this case no reasons have been given, and therefore the claimant cannot short circuit (sic) the process.

The claimant is therefore under an obligation to explore and exploit Article 7 and 35 before approaching the Court…” Ground 2 without its particulars states: “The learned trial judge erred in law when he considered only the 1st and 2nd respondents’ notice of preliminary objections but, nevertheless, failed to consider the appellant’s reply on points of law to the 1st and 2nd respondents’ notices of preliminary objection.” ​ While ground 1 complains of the failure of the learned trial judge to consider the reasons stated by the appellant for not submitting the dispute to arbitration, ground 2 complains about the failure of the learned trial judge to consider appellant’s reply on points of law.

The issue of the provision of a period of time for reference to arbitration does not directly arise from the two grounds or any other ground of appeal. The fact that some of the particulars of grounds 1 and 2 make references to the alleged limitation of time for submission of dispute to arbitration is not a basis for raising an issue therefrom. This is because an issue can only be raised from the complaint in a ground and not the particulars of a ground of appeal. See Stirling Civil Engineering Ltd v. Yahaya (2005) 127 LRCN 1174, 1196 or (2005) 11 NWLR (Pt. 935) 181.

The 1st respondent did not file a cross-appeal from which the issue is drawn and so the issue is incompetent and I strike out the same along with the argument in support thereof. See Arum v. Nwobodo (2013) 10 NWLR (Pt. 1362) 374, 395. Again, the lone issue of the 2nd respondent does not arise from any of the grounds of appeal filed by the appellant. Having not filed a cross-appeal or a respondent’s notice, the issue is incompetent and I accordingly strike it out. The result is that his brief of argument has no issue to sustain it and I therefore strike out the same.

Having read the grounds of appeal, it is my view that two issues will suffice for the determination of the appeal, namely: 1. Was the lower Court right in declining jurisdiction and striking out the case of the appellant? 2. Was the lower Court right in not entering judgment in favour of the appellant? ISSUE 1 – Was the lower Court right in declining jurisdiction and striking out the case of the appellant?

Appellant’s counsel contended that the lower Court erred when it failed to analyse and consider any of the issues raised by the appellant in its reply on points of law to the preliminary objections of the 1st and 2nd respondents. He referred to the ruling of the lower Court particularly where the learned judge of the lower Court observed that the appellant had provided no reason for not first resorting to arbitration. He referred to appellant’s reply brief where the reason for not resorting to arbitration was given.

He submitted that a Court is duty-bound to consider the issues raised by the parties before it and that failure to do so affects the ruling of the Court. Counsel argued that arbitration clause is of two classes and that the Supreme Court had considered a lone instance where an arbitration clause can oust the jurisdiction of a Court. He referred to the case of Obembe v. Wemabod Estates Ltd (1977) NSCC Vol. 11. He submitted that the general rule is that an arbitration clause does not oust the jurisdiction of a Court unless it is clearly within the Scott v. Avery clause.

He further submitted that the arbitration clause in this instance does not oust the jurisdiction of the lower Court. Still arguing, counsel posited that the lower Court was wrong in assuming that the proper process for the 1st and 2nd respondents to file was a preliminary objection and not a (motion for) stay of proceedings. He referred to Section 5 (1) and (2) of the Arbitration and Conciliation Act, 2004 and submitted that what the law demands is the filing of an application to stay proceedings after entry of appearance and without the taking of any other step.

He noted that the 1st and 2nd respondents rather filed preliminary objections and statements of defence. He pointed out that 2nd respondent acknowledged that it had taken steps in the matter and therefore ought not to have asked for the striking out of the matter on the ground that the reference to arbitration had not been made. He added that the admission amounted to a withdrawal of the first ground of objection which he said ceased to constitute an issue between the 2nd respondent and the appellant.

This he contended meant that since the learned judge of the lower Court had stated that the 2nd respondent’s objection would dispose of the 1st respondent’s objection, the ruling cannot stand as the issue of submission to arbitration was no longer being contested by the parties. 1st respondent’s counsel argued that proceedings can be terminated at the instance of the respondent on the basis of a clause in the contract entered into by the parties.

This, according to him, is because parties are bound by the terms of an agreement freely entered into by them and the Court is simply to give effect to the agreement freely entered into by parties. He posited that the phrase used in the arbitration clause is “shall” which is mandatory and so the lower Court was right in holding that the appellant was under an obligation to explore arbitration.

It was his further submission that whenever there is an agreement between parties that their dispute must be referred to arbitration, arbitration becomes a condition precedent to the exercise of jurisdiction. ​ It was his position that apart from filing an application for stay of proceedings, a defendant may also apply for the suit to be struck out where the Court is robbed of jurisdiction. He emphasized that such an application is known to law.

He went on to submit that taking steps to file a statement of defence before filing a preliminary objection at the lower Court was the proper thing for the (1st) respondent to do since demurrer has been abolished.

He finally submitted that if the 2nd respondent abandoned the first arm of his objection, it does not mean that the said ground ceased to constitute an issue between the appellant and the 1st respondent. ​ Let me quickly say that the reply brief filed by the appellant is not worthy of the tag “reply brief.” It begins by identifying two issues said to flow from the respondents’ brief of argument. Issues for the determination of an appeal do not arise from a respondent’s brief of argument; rather they arise from grounds of appeal.

Besides, there is no room in the rules of this Court for formulation of issues for determination in a reply brief.

Again, the issues formulated in the reply brief by appellant’s counsel are a re-statement of issues A and D raised in the appellant’s amended brief of argument. In short, the reply brief is but a re-argument of the contention in the appellant’s brief of argument. A reply brief is not meant to afford the appellant another bite at the cherry. It is improper to use a reply brief to extend the scope of argument in the appellant’s brief or to seek to prettify the argument in the appellant’s brief of argument. See Kolo v. Lawan (2018) 13 NWLR (Pt. 1637) 495, 518 and Mainstreet Bank Capital Ltd v.

Nigeria Re-Insurance Corporation Plc (2018) 14 NWLR (Pt. 1640) 423, 442. So I shall discountenance the reply brief. ​ It was the contention of appellant’s counsel that the trial Court failed to analyse and consider any of the issues raised by the appellant in its reply on points of law and that this is borne out by page 286 of the record of appeal. It was the position of 1st respondent’s counsel that this is a matter of style of writing of judgment or ruling which is peculiar to each judge.

At page 268 of the record, the learned judge of the lower Court held that no reason had been provided by the appellant for its failure to submit the dispute between the parties to arbitration. This cannot be correct, for the appellant (as claimant) in its replies at pages 237 -241 and 261 of the record gave the reasons for its not submitting the dispute to arbitration. The trial Court obviously overlooked the issue and argument of appellant’s counsel on the point. All Courts especially non-final Courts are required to treat all issues raised and argued by parties before reaching a decision.

See Yusuf v. Adegoke (2007) 11 NWLR (Pt. 1045) 332, 361, Nagabu Company Ltd v. Unity Bank Plc (2013) All FWLR (Pt. 698) 871, 896, and C. N. Okpala and Sons Ltd v. Nigerian Breweries Plc (2018) 9 NWLR (Pt. 1623) 16, 28. The lower Court did not consider and resolve the issue and points raised and argued by appellant’s counsel before reaching its decision. Now, the issue or point that was left untreated by the lower Court was to the effect that the time to resort to arbitration had effused and so the appellant was right to head straight to the lower Court without resorting first to arbitration.

I shall take the liberty of setting out the relevant clauses of the written agreement between the parties: Article 7 of the articles of agreement states: “If any dispute or difference as to the construction of this contract or any matter of thing of whatsoever nature arising thereunder or in connection therewith shall arise between the Employer or the Architect/Co-ordinator on his behalf and the Contractor either during the progress or after the completion or abandonment of the works, it shall be and is hereby referred to arbitration in accordance with the clause of the Conditions of Contract.” Clause 30 (7) of the Appendix No. 1 to the articles of agreement in part reads: “Unless a written request to concur in the appointment of an arbitrator shall have been given under clause 35 of these conditions by either party before the Final Certificate had been issued or by the Contractor within 14 days after such issue, the said certificate shall be conclusive evidence in any proceedings arising out of this contract (whether by arbitration under clause 35 of these conditions or otherwise) that the Works have been properly carried out and completed in accordance with the terms of this contract and that the necessary effect has been given to all the terms of this contract which require an adjustment to be made to the Contract Sum, except and in so far as any sum mentioned in the said certificate is erroneous by reason of …” Clause 35 (1) provides: “Provided always that in case any dispute or difference shall arise between the Employer or the Architect on his behalf and the Contractor either during the progress or after the completion or abandonment of the Works, as to the construction of this Contract or as to any matter or thing whatsoever nature arising thereunder or in connection therewith (including any matter or thing left by this Contract to the discretion of the Architect or the withholding by the Architect of any certificate to which the Contractor may claim to be entitled or the measurement and valuation mentioned in Clause 30 (5) (a) of these Conditions or the rights and liabilities of the parties under clauses 25, 26, 32 or 33 of the Conditions) then such dispute or difference shall be and is hereby referred to the arbitration and final decision of a person to be agreed between the parties, or failing agreement within 14 days after either party has given to the other a written request to concur in the appointment of an Arbitrator, a person to be appointed on the request of either party by the President or Vice President for the time being of the Nigerian Institute of Architects.” Clearly clause 30 (7) above does not talk about time within which a party may resort to arbitration after which the obligation to resort to arbitration is extinguished: it talks about the effect of failure to give a written request to concur in the appointment of an arbitrator either before the Final Certificate has been issued or within 14 days after the said Certificate has been issued, namely;

”the said certificate shall be conclusive evidence in any proceedings arising out of this contract…” It does not preclude or bar resort to arbitration and does not give any time limitation for doing so.

This is even made clearer by the words in brackets, to wit: ”whether by arbitration under clause 35 of these conditions or otherwise.” Clause 35 (1) supra. provides for arbitration in case any “dispute or difference shall arise… either during the progress or after the completion or abandonment of the Works, as to the construction of this Contract or as to any matter or thing or whatsoever nature arising thereunder or in connection therewith.” (underling is mine for emphasis) There is, as I have already stated, no time limitation as regards resort to arbitration in the contract as canvassed by counsel for the appellant.

The effect of the foregoing is that though the lower Court did not consider the point raised by appellant’s counsel touching on the issue of expiry of time within which resort is to be made to arbitration, the failure did not occasion a miscarriage of justice. See BPS Construction and Engineering Co. Ltd v. F. C. D. A. (2017) 10 NWLR (1572) 1, 14, SCC (Nig.) Ltd v. Anya (2013) ALL FWLR (Pt. 703) 2047, 2062 and Nigerian Communications Commission v.

Motophone Ltd (2019) 14 NWLR (1691) 1, 37 where Aba-Aji, JSC, opined that: “Moreover, even failure to consider all issues submitted before it would not amount to a denial of fair hearing unless it is shown that a miscarriage of justice occurred.” An arbitration agreement is an agreement by two or more persons that a dispute or potential dispute between them shall be resolved and decided in a legally binding way by one or more impartial persons in a judicial manner upon evidence put before him or them. It may stand alone or be incorporated in a commercial agreement as in this instance.

See Onuselogu Enterprises Ltd v. Afribank (Nig.) Plc (2005) 12 NWLR (Pt. 940) 577, 585 and A. Rhodes-Vivour’s Commercial Arbitration Law and Practice in Nigeria through the Cases page 145. An arbitration agreement or clause does not oust the jurisdiction of the Court (for parties have no power to contract out of the Constitution) but the Court in the exercise of its power under a statute may stay proceedings in an action brought before it in breach of an agreement to settle a dispute by arbitration. In the case of Mainstreet Bank Capital Ltd v.

Nigeria Reinsurance Corporation Plc, supra. 444 – 445, Kekere-Ekun, JSC, in resolving a similar issue relied on and quoted the case of Obembe v. Wemabod Estates Ltd (1977) 5 SC (Reprint) 70 thus: “The lower Court was right when it held that an agreement to have recourse to arbitration in the event of a dispute does not oust the jurisdiction of the Court. In Obembe v.

Wemabod Estates Ltd (1977) 5 SC (Reprint) 7 @ 79 lines 19 to 28, this Court per Fatayi-Williams, JSC, explained the legal position thus: “As we have pointed out earlier, any agreement to submit a dispute to arbitration, such as the one referred to above, does not oust the jurisdiction of the Court. Therefore, either party to such an agreement may, before a submission to arbitration or an award is made, commence legal proceedings in respect of any claim or cause of action included in the submission. (See Harris v. Reynolds (1845)7 QB 71).

At common law, the Court has no jurisdiction to stay proceedings; where however there is a provision in the agreement, as in Exhibit 3, for submission to arbitration, the Court has jurisdiction to stay proceedings by virtue of its power under Section 5 of the Arbitration Act.” See also Sino-Afric Agriculture & Industries Company Ltd v. Ministry Of Finance Incorporation (2013) LPELR – 22370 (CA) and Onyekwuluje v. Benue State Government (2015) 16 NWLR (Pt. 1484) 40.

Counsel for the appellant referred to a class of arbitration agreement or clause that is termed the Scott v Avery clause which is a provision in an arbitration agreement to the effect that no action shall be brought until an arbitral award has been made. This contractually forbids resort to a Court until the arbitration process has been exhausted. The leading case on the position is Scott v. Avery 1856 HL 811. See Rhodes-Vivour’s Commercial Arbitration Law and Practice in Nigeria through the Cases supra page 147.

Counsel set out the position of the Supreme Court on the clause as expressed in Obembe v. Wemabod Estates Ltd supra. I do not intend to comment on the submission by appellant’s counsel as the arbitration clause in this instance does not fall into this category of arbitration clause.

Section 5 (1) of the Arbitration and Conciliation Act provides that: “If any party to an arbitration agreement commences any action in any Court with respect to any matter which is the subject of an arbitration agreement, any party to the arbitration agreement may, at any time after appearance and before delivering any pleadings or taking any steps in the proceedings, apply to the Court to stay proceedings.”​

Let me pause at this stage to quickly settle a point raised by appellant’s counsel to the effect that since the 1st and 2nd respondents filed notices of preliminary objection to the jurisdiction of the Court instead of applications for stay of proceedings, the lower Court had no authority to consider the same as it is not known to the law. The simple answer to this submission is to be found in the case of Mainstreet Bank Capital Ltd v.

Nigerian Reinsurance Corporation Plc supra. 445 where Kekere-Ekun, JSC, opined that: “…since an arbitration clause in an agreement does not oust the jurisdiction of the Court, an objection to the jurisdiction of the Court is in effect an application to stay proceedings pending arbitration.” That gives a quietus to the contention of appellant’s counsel.

Where a party to an arbitration agreement proceeds first to Court before resorting to arbitration as agreed, the Court leans towards granting an application for stay of proceedings pending arbitration provided the party applying did not file a defence or take steps in the proceedings other than entering appearance. Where a party delivers a defence or makes any application for extension of time, he will be deemed to have waived his right to insist on recourse to arbitration.

See Mainstreet Bank Capital Ltdsupra. 445, Kano State Urban Development Board v. Fanz Construction Co. Ltd (1990) 4 NWLR (Pt. 142) 1 and Osun State Government v. Dalami Nig. Ltd (2003) 7 NWLR (Pt. 818) 72, 93. The question that follows therefore is was there a waiver by the 1st and 2nd respondents of the right to insist on a recourse to arbitration? In answering the question, I shall start by considering the processes filed by the 2nd respondent. They are as follows: 1. A statement of defence. See pages 175-178 of the record. 2.

A written deposition of a witness in opposition to the motion for summary judgment etc. see pages 179-180 of the record. 3. Written address in opposition to the motion for summary judgment. See pages 183-185 of the record. The processes above were filed on the same day that the preliminary objection to the jurisdiction of the Court was filed, to wit; 25/7/2016. The 2nd respondent by the filing of those processes took steps in the matter and thereby waived his right to insist on a recourse to arbitration.

His counsel admitted this position at page 266 of the record when he stated before the Court that: “We concede on the 1st arm of our prayer because we have taken steps because we filed a statement of defence…” In respect of the 1st respondent, it should be put on record that the mere fact that the 2nd respondent took steps does not by itself affect adversely the application of the 1st respondent though the lower Court stated that the outcome of the 2nd respondent’s application would dispose of the 1st respondent’s objection.

This is because the objection of the 1st respondent still maintained its individual character different from that of the 2nd respondent. I shall therefore consider the processes filed by the 1st respondent apart from the notice of preliminary objection. The processes are: 1. Statement of defence. See pages 186-188 of the record. 2. List of witness – page189 of the record. 3. Written deposition of the witness – pages 190-193 of the record. 4. Written address – pages 193-199 of the record. 5. Notice of intention to defend – page 200 of the record. 6.

Affidavit disclosing a defence on the merit – pages 201-203 of the record 7. Motion on notice for extension of time to file notice of intention to defend, affidavit disclosing defence on the merit, written address and statement of defence and a deeming order. See page 212 of the record. It must be mentioned that those processes were filed on 26/7/2016 while the notice of preliminary objection was filed on 8/7/2016. In other words, the processes listed above were filed after the notice of preliminary objection was filed by the 1st respondent.

A similar situation arose in the case of Mainstreet Bank Capital Ltd v. Nigerian Reinsurance Corporation Plc supra. At page 446 Kekere-Ekun, JSC, dissolved the puzzle, by rejecting the position of the Court of Appeal that there was no waiver, in the following words: “I must state however, with due respect to the lower Court, that it was wrong when it held that the steps taken by the respondent after filing of the preliminary objection did not preclude it from applying for stay of proceedings pending arbitration vide Section 5 (1) of ACA.

From the decisions of this Court earlier referred to, any step taken apart from seeking stay of proceedings (or seeking to oust the jurisdiction of the Court) amounts to a step in the proceedings and the applicant is deemed to have waived his right on arbitration agreement.” I find therefore that by filing the processes listed earlier after filing the notice of preliminary objection, the 1st respondent waived its right to insist on a recourse to arbitration. In the light of the foregoing, I enter a negative answer to issue 1 and resolve the same in favour of the appellant.

ISSUE 2 – Was the lower Court right in not entering judgment in favour of the appellant? ​ Appellant’s counsel submitted that appellant established its case under the rules of Court and as such is entitled to the reliefs claimed. He referred to the writ of summons and motion for summary judgment together with the annexures. He noted that the case of the appellant was by way of summary judgment procedure which he said is usually adopted when a claimant has a good case and the defendant has no reasonable defence.

He submitted that the respondents have no defence as they failed to annex or exhibit any documentary evidence showing that the appellant is not entitled to the sum due. He therefore argued that the appellant is entitled to judgment without the need for trial de novo pursuant to the inherent power of the Court and Order 7 Rule 2 (1) of the Court of Appeal Rules.

He added that the appellant is also entitled to the alternative prayers as contained in the notice of appeal. 1st respondent’s counsel contended that lower Court acted in the interest of justice by first determining the preliminary objection of the 1st and 2nd respondents. It was his further contention that in view of the merit of the objection, the lower Court was right in striking out the matter and not looking at the substantive suit in order to determine whether or not to grant judgment in appellant’s favour. He added that Order 7 Rule 2 (1) of the rules of this Court was inapplicable.

He stressed the point that the application for summary judgment which is in the nature of a motion had not been argued or moved before the lower Court for it to pass judgment on. He stated the trite position of the law that a Court is expected to make a specific ruling on an application before it after hearing counsel. ​ Counsel submitted that it is not the law that where a notice of intention to defend is filed, it must be accompanied with documentary exhibit.

The appellant is essentially calling on this Court to invoke its power under Section 15 of the Court of Appeal Act and Order 4 Rule 1 of the Court of Appeal Rules, 2021 to determine the case since the decision of the lower Court striking out the case of the appellant cannot stand. For the Court to exercise its power under the said provisions, the following factors must be present: 1. The lower Court must have the power to adjudicate in the matter. 2. The real issue raised by the appellant’s claim at the lower Court must be seen to be capable of being distilled from the grounds of appeal. 3.

All necessary materials must be available to the Court for consideration. 4. The need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented. 5. The injustice or hardship that will follow if the case is remitted to the lower Court must be clearly manifest. See Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423 and Mainstreet Bank Capital Ltd v. Nigerian Reinsurance Corporation Plc supra. 447.

For Section 15 of the Court of Appeal Act to apply, the matter must have been raised in the lower Court and that Court did not or failed to take the appropriate decision. See Yusuf v. Obasanjo (2003) 16 NWLR (Pt. 847) 554, 640. It is pertinent to re-state that there were two motions pending before the lower Court, to wit: 1. Motion for summary judgment 2. Motion by the 1st respondent for extension of time to file its notice of intention to defend, affidavit disclosing defence, written address and statement of defence and a deeming order.

None of the motions had come up for hearing at the lower Court as at the time that it heard and ruled on the preliminary objections of the 1st and 2nd respondents. The law is well established that a Court has a duty to hear and determine all applications pending before it before making a final pronouncement by way of delivery of judgment. See Cookey v. Fombo (2005) 15 NWLR (Pt. 947) 182, 201, United Parcel Service Ltd v. Ufot (2006) All FWLR (Pt. 314) 337, 356, BCE Consulting Engineering v. NNPC (2019) 14 NWLR (Pt. 1691) 136, 175 and Newswatch Communication Ltd v.

Atta (2006) 12 NWLR (Pt. 993) 144, 168 – 169.

Again, a Court cannot rule on a motion that has not been moved. Since the motions itemized above had not been moved at the trial Court nor can they or have they been moved in this Court, the coast was not clear for judgment to be delivered by the lower Court and so this Court cannot proceed to exercise its power under Section 15 of the Court of Appeal Act to enter judgment one way or the other. Given the stage of the case at the lower Court, I enter an affirmative answer to issue 2 and resolve it against the appellant.

On the whole and in the light of my resolution of issue 1, I find that the appeal has merit and I allow the same. I hereby set aside the ruling of the lower Court and, in its place, I dismiss the preliminary objections of the 1st and 2nd respondents. It is directed that the case be remitted to the Honourable Chief Judge of Delta State for assignment to a judge other than Gbemre, J. for speedy hearing and determination of the pending motions. I assess the costs of this appeal at N300,000 in favour of the appellant.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I had a preview of the lead judgment of my learned brother, J. E. EKANEM, JCA. My Lord has fully covered the issues in his lead judgment. I am in full agreement with his reasoning and conclusion that the appeal has merit. I abide by the orders made therein. ABIMBOLA OSARUGUE OBASEKI –

ADEJUMO, J.C.A.: I have read in advance the judgment of my learned brother JOSEPH EYO EKANEM, JCA. I have no hesitation in agreeing with the reasoning and conclusion arrived at by my learned brother. I too hold that the appeal has merit and I allow the same. I abide by all consequential order (s) in the lead judgment.

Judgment

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment) : This appeal is against the ruling of the High Court of Delta State sitting at Effurun (the lower Court) delivered on 1/6/2017 in Suit No. EHC/161/2017 by Gbemre, J. In the ruling, the lower Court upheld the preliminary objections filed by the 1st and 2nd respondents against the suit filed by the appellant on the basis that the dispute between the parties ought to be submitted to arbitration as stipulated in the agreement governing their relationship. The lower Court therefore struck out the suit.

Aggrieved by the decision, the appellant appealed to this Court by the means of a notice of appeal filed on 30/6/2017, which notice was amended by the leave of this Court granted on 8/2/2021. ​The facts of the case that led to this appeal as are relevant to the issues to be discussed in this judgment are that the appellant was engaged by the 1st respondent to construct a proposed College of Science for it. The contract was governed by Articles of agreement and conditions of service.

The appellant stated that it completed the job and the 2nd respondent, the architect, engineer and planner engaged by the 1st respondent for the job, submitted the architect’s final certificate to the (1st) respondent in favour of the appellant. The said certificate certified the sum of N51,572,556.39 as being due to the appellant. Upon default of payment, the appellant wrote a demand notice to the (1st) respondent. When payment was not made, the appellant filed a writ of summons accompanied by a statement of claim in which it claimed monetary reliefs against the respondents.

The appellant also applied for summary judgment against the respondents. In response, the 1st respondent entered a conditional appearance and filed a notice of preliminary objection praying the lower Court to dismiss or strike out the suit on the grounds that the suit was incompetent and that the lower Court lacked the jurisdiction to entertain the same.

The 1st respondent subsequently filed a notice of intention to defend, an affidavit disclosing a defence on the merit, a statement of defence and a motion for extension of time within which to file the said processes. ​ The 2nd respondent on his part filed a statement of defence, witness deposition and a notice of preliminary objection to the suit, among other processes. The processes were filed on the same date.

The lower Court received argument in respect of the preliminary objections and ruled that by clause 7 of the agreement between the parties, which is an arbitration clause, the appellant was bound to submit the dispute to arbitration before approaching the Court. It therefore struck out the suit. P. N. Agazie, Esq., of counsel for the appellant formulated the following issues in his amended brief of argument for the determination of the appeal: a.

Whether the learned trial judge was right when he considered and analysed only the 1st and 2nd respondents’ notice of preliminary objection but failed to consider the appellant’s replies on points of law to the 1st and 2nd respondent’s notices of preliminary objection. b. Whether, considering the peculiar circumstances of the case of the parties at the lower Court, the learned trial judge was right when he held that failure on the part of the appellant to first resort to arbitration ousted the jurisdiction of the lower Court. c.

Whether, the learned trial judge was right when he considered as proper the notices of preliminary objection filed by the 1st and 2nd respondents even though the 1st and 2nd respondents have taken steps in the proceedings at the lower Court by filing their statement of defence. d.

Whether the learned trial judge acted in the interest of justice when he struck out the appellant’s case, instead of entering judgment in favour of the appellant in the obvious absence of any documentary evidence filed by the respondents to show or establish a defence on the merit, having regards to the entire circumstances of the appellant’s contractual relationship with the 1st respondent. Chidi Chikogu, Esq., for the 1st respondent presented the following issues for the determination of the appeal: 1).

Whether under the contract, there was a period provided for parties in the contract to refer any matter to arbitration. (Grounds 1 and 2 of amended notice of appeal) 2). Whether in consideration of the provisions of Article 7 of the articles of agreement and the arbitration clause in Exhibit B the lower Court was right howsoever, in declining jurisdiction to entertain the appellant’s suit and referring same to arbitration. (Ground 3 of amended notice of appeal) 3).

Whether the learned trial judge acted in the interest of justice when he struck out the appellant’s case, instead of entering judgment in favour of the appellant in view of a preliminary objection and defence on the merit. (Ground 4 of amended notice of appeal).

Agebe Odeh, Esq., for the 2nd respondent formulated a single issue for the determination of the appeal, to wit: “Whether the trial judge was right when he considered and analysed the 1st ground of the 2nd respondent preliminary objection without considering and making a pronouncement on the 2nd ground.” The 3rd respondent did not file a brief of argument. Issue 1 formulated by 1st respondent’s counsel does not arise from grounds 1 and 2 of the grounds of appeal from which the issue is said to arise.

Ground 1, shorn of its particulars, reads: a) ERROR IN LAW The learned trial judge erred in law when he held thus; “In this case no reasons have been given, and therefore the claimant cannot short circuit (sic) the process.

The claimant is therefore under an obligation to explore and exploit Article 7 and 35 before approaching the Court…” Ground 2 without its particulars states: “The learned trial judge erred in law when he considered only the 1st and 2nd respondents’ notice of preliminary objections but, nevertheless, failed to consider the appellant’s reply on points of law to the 1st and 2nd respondents’ notices of preliminary objection.” ​ While ground 1 complains of the failure of the learned trial judge to consider the reasons stated by the appellant for not submitting the dispute to arbitration, ground 2 complains about the failure of the learned trial judge to consider appellant’s reply on points of law.

The issue of the provision of a period of time for reference to arbitration does not directly arise from the two grounds or any other ground of appeal. The fact that some of the particulars of grounds 1 and 2 make references to the alleged limitation of time for submission of dispute to arbitration is not a basis for raising an issue therefrom. This is because an issue can only be raised from the complaint in a ground and not the particulars of a ground of appeal. See Stirling Civil Engineering Ltd v. Yahaya (2005) 127 LRCN 1174, 1196 or (2005) 11 NWLR (Pt. 935) 181.

The 1st respondent did not file a cross-appeal from which the issue is drawn and so the issue is incompetent and I strike out the same along with the argument in support thereof. See Arum v. Nwobodo (2013) 10 NWLR (Pt. 1362) 374, 395. Again, the lone issue of the 2nd respondent does not arise from any of the grounds of appeal filed by the appellant. Having not filed a cross-appeal or a respondent’s notice, the issue is incompetent and I accordingly strike it out. The result is that his brief of argument has no issue to sustain it and I therefore strike out the same.

Having read the grounds of appeal, it is my view that two issues will suffice for the determination of the appeal, namely: 1. Was the lower Court right in declining jurisdiction and striking out the case of the appellant? 2. Was the lower Court right in not entering judgment in favour of the appellant? ISSUE 1 – Was the lower Court right in declining jurisdiction and striking out the case of the appellant?

Appellant’s counsel contended that the lower Court erred when it failed to analyse and consider any of the issues raised by the appellant in its reply on points of law to the preliminary objections of the 1st and 2nd respondents. He referred to the ruling of the lower Court particularly where the learned judge of the lower Court observed that the appellant had provided no reason for not first resorting to arbitration. He referred to appellant’s reply brief where the reason for not resorting to arbitration was given.

He submitted that a Court is duty-bound to consider the issues raised by the parties before it and that failure to do so affects the ruling of the Court. Counsel argued that arbitration clause is of two classes and that the Supreme Court had considered a lone instance where an arbitration clause can oust the jurisdiction of a Court. He referred to the case of Obembe v. Wemabod Estates Ltd (1977) NSCC Vol. 11. He submitted that the general rule is that an arbitration clause does not oust the jurisdiction of a Court unless it is clearly within the Scott v. Avery clause.

He further submitted that the arbitration clause in this instance does not oust the jurisdiction of the lower Court. Still arguing, counsel posited that the lower Court was wrong in assuming that the proper process for the 1st and 2nd respondents to file was a preliminary objection and not a (motion for) stay of proceedings. He referred to Section 5 (1) and (2) of the Arbitration and Conciliation Act, 2004 and submitted that what the law demands is the filing of an application to stay proceedings after entry of appearance and without the taking of any other step.

He noted that the 1st and 2nd respondents rather filed preliminary objections and statements of defence. He pointed out that 2nd respondent acknowledged that it had taken steps in the matter and therefore ought not to have asked for the striking out of the matter on the ground that the reference to arbitration had not been made. He added that the admission amounted to a withdrawal of the first ground of objection which he said ceased to constitute an issue between the 2nd respondent and the appellant.

This he contended meant that since the learned judge of the lower Court had stated that the 2nd respondent’s objection would dispose of the 1st respondent’s objection, the ruling cannot stand as the issue of submission to arbitration was no longer being contested by the parties. 1st respondent’s counsel argued that proceedings can be terminated at the instance of the respondent on the basis of a clause in the contract entered into by the parties.

This, according to him, is because parties are bound by the terms of an agreement freely entered into by them and the Court is simply to give effect to the agreement freely entered into by parties. He posited that the phrase used in the arbitration clause is “shall” which is mandatory and so the lower Court was right in holding that the appellant was under an obligation to explore arbitration.

It was his further submission that whenever there is an agreement between parties that their dispute must be referred to arbitration, arbitration becomes a condition precedent to the exercise of jurisdiction. ​ It was his position that apart from filing an application for stay of proceedings, a defendant may also apply for the suit to be struck out where the Court is robbed of jurisdiction. He emphasized that such an application is known to law.

He went on to submit that taking steps to file a statement of defence before filing a preliminary objection at the lower Court was the proper thing for the (1st) respondent to do since demurrer has been abolished.

He finally submitted that if the 2nd respondent abandoned the first arm of his objection, it does not mean that the said ground ceased to constitute an issue between the appellant and the 1st respondent. ​ Let me quickly say that the reply brief filed by the appellant is not worthy of the tag “reply brief.” It begins by identifying two issues said to flow from the respondents’ brief of argument. Issues for the determination of an appeal do not arise from a respondent’s brief of argument; rather they arise from grounds of appeal.

Besides, there is no room in the rules of this Court for formulation of issues for determination in a reply brief.

Again, the issues formulated in the reply brief by appellant’s counsel are a re-statement of issues A and D raised in the appellant’s amended brief of argument. In short, the reply brief is but a re-argument of the contention in the appellant’s brief of argument. A reply brief is not meant to afford the appellant another bite at the cherry. It is improper to use a reply brief to extend the scope of argument in the appellant’s brief or to seek to prettify the argument in the appellant’s brief of argument. See Kolo v. Lawan (2018) 13 NWLR (Pt. 1637) 495, 518 and Mainstreet Bank Capital Ltd v.

Nigeria Re-Insurance Corporation Plc (2018) 14 NWLR (Pt. 1640) 423, 442. So I shall discountenance the reply brief. ​ It was the contention of appellant’s counsel that the trial Court failed to analyse and consider any of the issues raised by the appellant in its reply on points of law and that this is borne out by page 286 of the record of appeal. It was the position of 1st respondent’s counsel that this is a matter of style of writing of judgment or ruling which is peculiar to each judge.

At page 268 of the record, the learned judge of the lower Court held that no reason had been provided by the appellant for its failure to submit the dispute between the parties to arbitration. This cannot be correct, for the appellant (as claimant) in its replies at pages 237 -241 and 261 of the record gave the reasons for its not submitting the dispute to arbitration. The trial Court obviously overlooked the issue and argument of appellant’s counsel on the point. All Courts especially non-final Courts are required to treat all issues raised and argued by parties before reaching a decision.

See Yusuf v. Adegoke (2007) 11 NWLR (Pt. 1045) 332, 361, Nagabu Company Ltd v. Unity Bank Plc (2013) All FWLR (Pt. 698) 871, 896, and C. N. Okpala and Sons Ltd v. Nigerian Breweries Plc (2018) 9 NWLR (Pt. 1623) 16, 28. The lower Court did not consider and resolve the issue and points raised and argued by appellant’s counsel before reaching its decision. Now, the issue or point that was left untreated by the lower Court was to the effect that the time to resort to arbitration had effused and so the appellant was right to head straight to the lower Court without resorting first to arbitration.

I shall take the liberty of setting out the relevant clauses of the written agreement between the parties: Article 7 of the articles of agreement states: “If any dispute or difference as to the construction of this contract or any matter of thing of whatsoever nature arising thereunder or in connection therewith shall arise between the Employer or the Architect/Co-ordinator on his behalf and the Contractor either during the progress or after the completion or abandonment of the works, it shall be and is hereby referred to arbitration in accordance with the clause of the Conditions of Contract.” Clause 30 (7) of the Appendix No. 1 to the articles of agreement in part reads: “Unless a written request to concur in the appointment of an arbitrator shall have been given under clause 35 of these conditions by either party before the Final Certificate had been issued or by the Contractor within 14 days after such issue, the said certificate shall be conclusive evidence in any proceedings arising out of this contract (whether by arbitration under clause 35 of these conditions or otherwise) that the Works have been properly carried out and completed in accordance with the terms of this contract and that the necessary effect has been given to all the terms of this contract which require an adjustment to be made to the Contract Sum, except and in so far as any sum mentioned in the said certificate is erroneous by reason of …” Clause 35 (1) provides: “Provided always that in case any dispute or difference shall arise between the Employer or the Architect on his behalf and the Contractor either during the progress or after the completion or abandonment of the Works, as to the construction of this Contract or as to any matter or thing whatsoever nature arising thereunder or in connection therewith (including any matter or thing left by this Contract to the discretion of the Architect or the withholding by the Architect of any certificate to which the Contractor may claim to be entitled or the measurement and valuation mentioned in Clause 30 (5) (a) of these Conditions or the rights and liabilities of the parties under clauses 25, 26, 32 or 33 of the Conditions) then such dispute or difference shall be and is hereby referred to the arbitration and final decision of a person to be agreed between the parties, or failing agreement within 14 days after either party has given to the other a written request to concur in the appointment of an Arbitrator, a person to be appointed on the request of either party by the President or Vice President for the time being of the Nigerian Institute of Architects.” Clearly clause 30 (7) above does not talk about time within which a party may resort to arbitration after which the obligation to resort to arbitration is extinguished: it talks about the effect of failure to give a written request to concur in the appointment of an arbitrator either before the Final Certificate has been issued or within 14 days after the said Certificate has been issued, namely;

”the said certificate shall be conclusive evidence in any proceedings arising out of this contract…” It does not preclude or bar resort to arbitration and does not give any time limitation for doing so.

This is even made clearer by the words in brackets, to wit: ”whether by arbitration under clause 35 of these conditions or otherwise.” Clause 35 (1) supra. provides for arbitration in case any “dispute or difference shall arise… either during the progress or after the completion or abandonment of the Works, as to the construction of this Contract or as to any matter or thing or whatsoever nature arising thereunder or in connection therewith.” (underling is mine for emphasis) There is, as I have already stated, no time limitation as regards resort to arbitration in the contract as canvassed by counsel for the appellant.

The effect of the foregoing is that though the lower Court did not consider the point raised by appellant’s counsel touching on the issue of expiry of time within which resort is to be made to arbitration, the failure did not occasion a miscarriage of justice. See BPS Construction and Engineering Co. Ltd v. F. C. D. A. (2017) 10 NWLR (1572) 1, 14, SCC (Nig.) Ltd v. Anya (2013) ALL FWLR (Pt. 703) 2047, 2062 and Nigerian Communications Commission v.

Motophone Ltd (2019) 14 NWLR (1691) 1, 37 where Aba-Aji, JSC, opined that: “Moreover, even failure to consider all issues submitted before it would not amount to a denial of fair hearing unless it is shown that a miscarriage of justice occurred.” An arbitration agreement is an agreement by two or more persons that a dispute or potential dispute between them shall be resolved and decided in a legally binding way by one or more impartial persons in a judicial manner upon evidence put before him or them. It may stand alone or be incorporated in a commercial agreement as in this instance.

See Onuselogu Enterprises Ltd v. Afribank (Nig.) Plc (2005) 12 NWLR (Pt. 940) 577, 585 and A. Rhodes-Vivour’s Commercial Arbitration Law and Practice in Nigeria through the Cases page 145. An arbitration agreement or clause does not oust the jurisdiction of the Court (for parties have no power to contract out of the Constitution) but the Court in the exercise of its power under a statute may stay proceedings in an action brought before it in breach of an agreement to settle a dispute by arbitration. In the case of Mainstreet Bank Capital Ltd v.

Nigeria Reinsurance Corporation Plc, supra. 444 – 445, Kekere-Ekun, JSC, in resolving a similar issue relied on and quoted the case of Obembe v. Wemabod Estates Ltd (1977) 5 SC (Reprint) 70 thus: “The lower Court was right when it held that an agreement to have recourse to arbitration in the event of a dispute does not oust the jurisdiction of the Court. In Obembe v.

Wemabod Estates Ltd (1977) 5 SC (Reprint) 7 @ 79 lines 19 to 28, this Court per Fatayi-Williams, JSC, explained the legal position thus: “As we have pointed out earlier, any agreement to submit a dispute to arbitration, such as the one referred to above, does not oust the jurisdiction of the Court. Therefore, either party to such an agreement may, before a submission to arbitration or an award is made, commence legal proceedings in respect of any claim or cause of action included in the submission. (See Harris v. Reynolds (1845)7 QB 71).

At common law, the Court has no jurisdiction to stay proceedings; where however there is a provision in the agreement, as in Exhibit 3, for submission to arbitration, the Court has jurisdiction to stay proceedings by virtue of its power under Section 5 of the Arbitration Act.” See also Sino-Afric Agriculture & Industries Company Ltd v. Ministry Of Finance Incorporation (2013) LPELR – 22370 (CA) and Onyekwuluje v. Benue State Government (2015) 16 NWLR (Pt. 1484) 40.

Counsel for the appellant referred to a class of arbitration agreement or clause that is termed the Scott v Avery clause which is a provision in an arbitration agreement to the effect that no action shall be brought until an arbitral award has been made. This contractually forbids resort to a Court until the arbitration process has been exhausted. The leading case on the position is Scott v. Avery 1856 HL 811. See Rhodes-Vivour’s Commercial Arbitration Law and Practice in Nigeria through the Cases supra page 147.

Counsel set out the position of the Supreme Court on the clause as expressed in Obembe v. Wemabod Estates Ltd supra. I do not intend to comment on the submission by appellant’s counsel as the arbitration clause in this instance does not fall into this category of arbitration clause.

Section 5 (1) of the Arbitration and Conciliation Act provides that: “If any party to an arbitration agreement commences any action in any Court with respect to any matter which is the subject of an arbitration agreement, any party to the arbitration agreement may, at any time after appearance and before delivering any pleadings or taking any steps in the proceedings, apply to the Court to stay proceedings.”​

Let me pause at this stage to quickly settle a point raised by appellant’s counsel to the effect that since the 1st and 2nd respondents filed notices of preliminary objection to the jurisdiction of the Court instead of applications for stay of proceedings, the lower Court had no authority to consider the same as it is not known to the law. The simple answer to this submission is to be found in the case of Mainstreet Bank Capital Ltd v.

Nigerian Reinsurance Corporation Plc supra. 445 where Kekere-Ekun, JSC, opined that: “…since an arbitration clause in an agreement does not oust the jurisdiction of the Court, an objection to the jurisdiction of the Court is in effect an application to stay proceedings pending arbitration.” That gives a quietus to the contention of appellant’s counsel.

Where a party to an arbitration agreement proceeds first to Court before resorting to arbitration as agreed, the Court leans towards granting an application for stay of proceedings pending arbitration provided the party applying did not file a defence or take steps in the proceedings other than entering appearance. Where a party delivers a defence or makes any application for extension of time, he will be deemed to have waived his right to insist on recourse to arbitration.

See Mainstreet Bank Capital Ltdsupra. 445, Kano State Urban Development Board v. Fanz Construction Co. Ltd (1990) 4 NWLR (Pt. 142) 1 and Osun State Government v. Dalami Nig. Ltd (2003) 7 NWLR (Pt. 818) 72, 93. The question that follows therefore is was there a waiver by the 1st and 2nd respondents of the right to insist on a recourse to arbitration? In answering the question, I shall start by considering the processes filed by the 2nd respondent. They are as follows: 1. A statement of defence. See pages 175-178 of the record. 2.

A written deposition of a witness in opposition to the motion for summary judgment etc. see pages 179-180 of the record. 3. Written address in opposition to the motion for summary judgment. See pages 183-185 of the record. The processes above were filed on the same day that the preliminary objection to the jurisdiction of the Court was filed, to wit; 25/7/2016. The 2nd respondent by the filing of those processes took steps in the matter and thereby waived his right to insist on a recourse to arbitration.

His counsel admitted this position at page 266 of the record when he stated before the Court that: “We concede on the 1st arm of our prayer because we have taken steps because we filed a statement of defence…” In respect of the 1st respondent, it should be put on record that the mere fact that the 2nd respondent took steps does not by itself affect adversely the application of the 1st respondent though the lower Court stated that the outcome of the 2nd respondent’s application would dispose of the 1st respondent’s objection.

This is because the objection of the 1st respondent still maintained its individual character different from that of the 2nd respondent. I shall therefore consider the processes filed by the 1st respondent apart from the notice of preliminary objection. The processes are: 1. Statement of defence. See pages 186-188 of the record. 2. List of witness – page189 of the record. 3. Written deposition of the witness – pages 190-193 of the record. 4. Written address – pages 193-199 of the record. 5. Notice of intention to defend – page 200 of the record. 6.

Affidavit disclosing a defence on the merit – pages 201-203 of the record 7. Motion on notice for extension of time to file notice of intention to defend, affidavit disclosing defence on the merit, written address and statement of defence and a deeming order. See page 212 of the record. It must be mentioned that those processes were filed on 26/7/2016 while the notice of preliminary objection was filed on 8/7/2016. In other words, the processes listed above were filed after the notice of preliminary objection was filed by the 1st respondent.

A similar situation arose in the case of Mainstreet Bank Capital Ltd v. Nigerian Reinsurance Corporation Plc supra. At page 446 Kekere-Ekun, JSC, dissolved the puzzle, by rejecting the position of the Court of Appeal that there was no waiver, in the following words: “I must state however, with due respect to the lower Court, that it was wrong when it held that the steps taken by the respondent after filing of the preliminary objection did not preclude it from applying for stay of proceedings pending arbitration vide Section 5 (1) of ACA.

From the decisions of this Court earlier referred to, any step taken apart from seeking stay of proceedings (or seeking to oust the jurisdiction of the Court) amounts to a step in the proceedings and the applicant is deemed to have waived his right on arbitration agreement.” I find therefore that by filing the processes listed earlier after filing the notice of preliminary objection, the 1st respondent waived its right to insist on a recourse to arbitration. In the light of the foregoing, I enter a negative answer to issue 1 and resolve the same in favour of the appellant.

ISSUE 2 – Was the lower Court right in not entering judgment in favour of the appellant? ​ Appellant’s counsel submitted that appellant established its case under the rules of Court and as such is entitled to the reliefs claimed. He referred to the writ of summons and motion for summary judgment together with the annexures. He noted that the case of the appellant was by way of summary judgment procedure which he said is usually adopted when a claimant has a good case and the defendant has no reasonable defence.

He submitted that the respondents have no defence as they failed to annex or exhibit any documentary evidence showing that the appellant is not entitled to the sum due. He therefore argued that the appellant is entitled to judgment without the need for trial de novo pursuant to the inherent power of the Court and Order 7 Rule 2 (1) of the Court of Appeal Rules.

He added that the appellant is also entitled to the alternative prayers as contained in the notice of appeal. 1st respondent’s counsel contended that lower Court acted in the interest of justice by first determining the preliminary objection of the 1st and 2nd respondents. It was his further contention that in view of the merit of the objection, the lower Court was right in striking out the matter and not looking at the substantive suit in order to determine whether or not to grant judgment in appellant’s favour. He added that Order 7 Rule 2 (1) of the rules of this Court was inapplicable.

He stressed the point that the application for summary judgment which is in the nature of a motion had not been argued or moved before the lower Court for it to pass judgment on. He stated the trite position of the law that a Court is expected to make a specific ruling on an application before it after hearing counsel. ​ Counsel submitted that it is not the law that where a notice of intention to defend is filed, it must be accompanied with documentary exhibit.

The appellant is essentially calling on this Court to invoke its power under Section 15 of the Court of Appeal Act and Order 4 Rule 1 of the Court of Appeal Rules, 2021 to determine the case since the decision of the lower Court striking out the case of the appellant cannot stand. For the Court to exercise its power under the said provisions, the following factors must be present: 1. The lower Court must have the power to adjudicate in the matter. 2. The real issue raised by the appellant’s claim at the lower Court must be seen to be capable of being distilled from the grounds of appeal. 3.

All necessary materials must be available to the Court for consideration. 4. The need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented. 5. The injustice or hardship that will follow if the case is remitted to the lower Court must be clearly manifest. See Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423 and Mainstreet Bank Capital Ltd v. Nigerian Reinsurance Corporation Plc supra. 447.

For Section 15 of the Court of Appeal Act to apply, the matter must have been raised in the lower Court and that Court did not or failed to take the appropriate decision. See Yusuf v. Obasanjo (2003) 16 NWLR (Pt. 847) 554, 640. It is pertinent to re-state that there were two motions pending before the lower Court, to wit: 1. Motion for summary judgment 2. Motion by the 1st respondent for extension of time to file its notice of intention to defend, affidavit disclosing defence, written address and statement of defence and a deeming order.

None of the motions had come up for hearing at the lower Court as at the time that it heard and ruled on the preliminary objections of the 1st and 2nd respondents. The law is well established that a Court has a duty to hear and determine all applications pending before it before making a final pronouncement by way of delivery of judgment. See Cookey v. Fombo (2005) 15 NWLR (Pt. 947) 182, 201, United Parcel Service Ltd v. Ufot (2006) All FWLR (Pt. 314) 337, 356, BCE Consulting Engineering v. NNPC (2019) 14 NWLR (Pt. 1691) 136, 175 and Newswatch Communication Ltd v.

Atta (2006) 12 NWLR (Pt. 993) 144, 168 – 169.

Again, a Court cannot rule on a motion that has not been moved. Since the motions itemized above had not been moved at the trial Court nor can they or have they been moved in this Court, the coast was not clear for judgment to be delivered by the lower Court and so this Court cannot proceed to exercise its power under Section 15 of the Court of Appeal Act to enter judgment one way or the other. Given the stage of the case at the lower Court, I enter an affirmative answer to issue 2 and resolve it against the appellant.

On the whole and in the light of my resolution of issue 1, I find that the appeal has merit and I allow the same. I hereby set aside the ruling of the lower Court and, in its place, I dismiss the preliminary objections of the 1st and 2nd respondents. It is directed that the case be remitted to the Honourable Chief Judge of Delta State for assignment to a judge other than Gbemre, J. for speedy hearing and determination of the pending motions. I assess the costs of this appeal at N300,000 in favour of the appellant.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I had a preview of the lead judgment of my learned brother, J. E. EKANEM, JCA. My Lord has fully covered the issues in his lead judgment. I am in full agreement with his reasoning and conclusion that the appeal has merit. I abide by the orders made therein. ABIMBOLA OSARUGUE OBASEKI –

ADEJUMO, J.C.A.: I have read in advance the judgment of my learned brother JOSEPH EYO EKANEM, JCA. I have no hesitation in agreeing with the reasoning and conclusion arrived at by my learned brother. I too hold that the appeal has merit and I allow the same. I abide by all consequential order (s) in the lead judgment.

Judgment

MISITURA OMODERE BOLAJI-YUSUFF J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Delta State delivered in suit no. W/63/2010 on 17/5/2013.

The respondent as the claimant at the lower Court commenced the action by a writ of summons and statement of claim wherein he claimed the following reliefs against the appellants: (a) The sum of N5,304,400.00 (five million three hundred and four thousand four hundred naira) representing the total sum accruable to the respondent as his entitlement from the profits which accrued from July to January, 2010 till date. (b) Interest pursuant to Order 35 Rule 7 High Court of Delta State (Civil Procedure) Rules, 2009 on the judgment debt and costs at the rate of 15% per annum from the date of judgment until actual liquidation of the judgment debt.

The appellants counter-claimed against the appellant as follows: (a) The sum of N1,887,296.00 (one million eight hundred and eighty- seven thousand two hundred and ninety-six naira) ​The case of the respondent as the claimant at the lower Court was that sometime in the year 2002, his uncle, Chief A.M. Bubor (JP) secured a contract with Chevron Nigeria Ltd to supply a barge for the services of the company which contract is a running contract. His uncle thereafter engaged him as an agent to secure the said barge which he did. He secured the barge from MR.

KHODER MAZIOUM, the 1st appellant which he supplied to Chevron Nig. Ltd. The agreed contract sum to be paid by Chevron was $600.00 per day. His uncle and the 1st appellant agreed among themselves that the contract sum which was $600 should be shared in the ratio of $450 to the 1st defendant, $130 to Chief Bubor and $20 to the respondent per day. The appellants withheld the respondent’s entitlement of $20 per day on the vague excuse that the Bank which sponsored the purchase of the Barge was still recovering the loan.

The appellants were paying Chief Bubor promptly without any hitch or disruption. After several demands by the respondent, the appellants paid a total sum of N1,887,296.00 (One Million, Eight Hundred and Eighty-Seven Thousand, Two Hundred and Ninety-Six Naira). The appellants have persistently and doggedly refused to pay the balance. The appellants’ case was that the respondent is Chief Bubor’s nephew and agent and he can only receive remuneration from Chief Bubor.

They averred that they dealt directly with Chief Bubor and not the respondent a fact which has long been made known to the respondent by the Economic and Financial Crimes Commission to who the respondent reported this matter. According to the appellants, there was no time the parties and Chief Bubor agreed that proceeds from the contract should be shared amongst them, the only person whom the appellants agreed to pay was Chief Bubor. They alleged that the respondent misled them into thinking that it was a directive from Chief Bubor and Chevron that the respondent be paid.

When Chief Bubor discovered that $20 of his money had been deducted by the appellants, he reported the appellants to Chevron Marine Logistic Supervisor who instructed appellants to immediately pay the backlog of the said $20 in the presence of the respondent. That instruction was complied with despite the fact that the money had wrongly been paid to the respondent who did not return same. They denied being indebted to the respondent. They contended that the respondent’s action is statute barred.

The respondent testified in support of his case and called no other witness. 1st appellant and one other witness testified for the appellants. In its considered judgment delivered by C. E. Ajilefu, J, the lower Court held that the action is not statute-barred. Judgment was entered in favour of the respondent in the sum of N5,304,400.00 (five million three hundred and four thousand four hundred naira). The appellants’ counter-claim was dismissed. The appellants filed a notice of appeal against the judgment on 20/5/13.

An amended notice of appeal filed on 12/4/19 was deemed as properly filed and served on 9/10/19. The four grounds of appeal in the amended notice of appeal without their particulars are as follows: GROUND 1 The learned trial Judge erred in law when she held that the action is not statute-barred since the contract is a running contract. GROUND 2 The judgment is against the weight of evidence GROUND 3 The learned trial Judge erred in law and on facts in failing to hold and observe that there was no privity of contract and no enforceable contract between the respondent and the appellants GROUND 4

The learned trial Judge erred in law and on facts in failing to hold and observe that there was no valid witness statement on oath in support of respondent’s claim before the Court below.” The appellants filed a brief of argument on 2/4/14 which was withdrawn and struck out. Another appellants’ brief of argument filed on 10/10/19 was deemed as properly filed and served on 22/6/20. The respondent’s brief of argument was filed on 20/10/14 in response to the appellant’s brief which was struck out. The respondent did not file a fresh brief in response to the appellant’s brief filed on 10/10/19.

However, the respondent’s brief was also deemed as properly filed and served on 22/6/20, the same day the appellants’ brief was deemed as properly filed and served. The appellants’ counsel adopted the appellants’ brief as his argument in this appeal. When the appeal was called, the respondent’s counsel was absent inspite of service of notice of hearing on him.

Pursuant to Order 19 Rule 9 (4) of the Court of Appeal Rules, 2021, the appeal was deemed as having been argued by the respondent based on the respondent’s brief of argument. ​The appellants formulated the following issues for determination: 1. Whether the learned trial Judge was right in holding that the respondent’s action was not statute barred. 2. Whether there was a valid statement on oath in support of the claim before the Court. 3. Whether there was a valid and enforceable contract between the respondent and the appellants. The respondent adopted the issues formulated by the appellants.

On issue 1 which is whether the learned trial Judge was right in holding that the respondent’s action was not statute-barred, the appellants’ counsel argued that from the averments in paragraphs 14-16 of the statement of claim, the cause of action accrued in July, 2004 when the 1st appellant allegedly refused to pay the respondent his daily entitlement and when the calculation of the respondent’s entitlement started while this action was commenced on 1st March, 2010 which is outside of the five years prescribed by Section 18 of the Limitation Law of Delta State, Cap L11, Volume 3, Laws of Delta State.

He submitted that in contract, the cause of action accrues not when the damages are suffered but when the breach occurs. He referred to LAGOS UNIVERSITY TEACHING HOSPITAL AND MANAGEMENT BOARD V. ADEWOLE (1998) 5 NWLR (PT.550) 406 418 (F-H). In response, the respondent’s counsel argued that the cause of action accrued after the appellants paid additional sum of N1,000,000.00 (one million naira) to the respondent on 15th March, 2005 and refused to make further payments.

Therefore, this action filed on 1st March, 2005 is not caught by the provision of Section 18 of the Limitation Law of Delta State. On how to determine the cause of action and when it accrues, counsel referred to JULIUS BERGER NIG. PLC V. OMOGUI (2001) FWLR (PT.64) 305 AT 307(RATIO 3). ADIMORA V. AJUFO (1988) 3 NWLR (Pt. 80) 1. RESOLUTION The law is settled that where a law prescribes a time limit within which to institute an action to seek redress for a particular grievance, the action must be instituted within the prescribed time.

An action instituted after the expiration of the prescribed period is statute barred. For the purpose of limitation of action, time begins to run the moment the cause of action accrues. That is when there is in existence a person who can sue and another who can be sued and all facts which are material and have to be proved to entitle the claimant to succeed have happened. See I.N.E.C. V. ENASITO (2018) 2 NWLR (PT. 1602) 63. ASABORO V. PAN OCEAN OIL CORP. NIG. LTD (SUPRA). OKAFOR V. B.D.U., JOS BRANCH (2017) 5 NWLR (PT. 1559) 385.

In order to determine whether an action is statute barred, the Court examines the originating process, the statement of claim and the evidence led if the case had gone into trial. In the instant case, the statement of claim together with the evidence on record. See ASABORO V. PAN OCEAN OIL CORP. NIG. LTD (2017) 7 NWLR (PT.1563) 42.

The respondent’s action is based on contract.

Section 18 of the Limitation Law of Delta State provides that: “No action founded on contract, tort or any other action not specifically provided for in Parts 11 and 111 of this Law shall be brought after the expiration of five years from the date on which the cause of action accrued.” Section 30 (5), (6), (7) and 31 of the law provides that: (5) Subject to Subsection (6) of the Section, where any right of action has accrued to recover (a) any debt or other liquidated pecuniary claim;

or (b) any claim to the estate of a deceased person or to any share or interest in any such estate, And the person liable or accountable for the claim acknowledges the claim or makes any payment in respect of it, the right shall be treated as having accrued on and not before the date of the acknowledgment or payment. (6) A payment of a part of the rent or interest due at any time shall not extend the period for claiming the remainder then due, but any payment of interest shall be treated as a payment in respect of the principal debt. (7) Subject to subsection (6) of this Section, a current period of limitation may be repeatedly extended under this Section by further acknowledgements or payments but a right of action, once barred by this Law, shall not be revived by any subsequent acknowledgment or payment. 31. (1) To be effective for the purposes of Section 30 of this Law, an acknowledgement must be in writing and signed by the person making it. (2) For the purposes of Section 30, any acknowledgement or payment: – (a) May be made by the agent of the person by whom it is required to be made under that Section;

and (b) Shall be made to the person, or to an agent of the person, whose interest or claim is being acknowledged or, as the case may be, in respect of whose claim the payment is being made.

I have perused the entire evidence on record. There is no evidence that the respondent paid a sum of N1,000,000.00 (one million naira) on 15th March, 2015. That submission is an attempt by the respondent’s counsel to smuggle in a piece of evidence which is not on record in the guise of writing a brief. It is wrong, unethical and unlawful for counsel in the guise of advocacy to lead evidence from the bar or concoct facts in the final address or brief of argument. See OGHENEOVU V. F.R.N (2019) 13 NWLR (PT. 1689) 335A T270 (B-D).

However, since the agreement was for payment of commission on monthly basis and the contract was still running as at the time the action was commenced, the lower Court was right to hold that the action is a continuous action and is not statute barred. The continuance of injury or damage which is a legal injury constitutes an exception to the general rule on limitation of action. See I.N.E.C. V. ENASITO (SUPRA). Issue 1 is resolved against the appellants.

On issue 2 which is whether there was a valid statement on oath in support of the claim before the Court, the appellants’ counsel submitted that there is nothing to show that the respondent’s statement was sworn to before any commissioner for oaths as there is no way the commissioner for oaths could have signed the oath on 25th February, 2010 when the action was filed on 1st March, 2010. He further submitted that the statement attached to the statement of claim is not admissible by virtue of Section 109 of the Evidence Act.

He posited that Order 3 Rule 2 (2) of the High Court (Civil Procedure) Rules of Delta State which requires statement on oath to be filed along with the statement of claim was not complied with. The respondent’s counsel on his part submitted that the complaint about the respondent’s statement on oath which accompanied the statement of claim is a fresh issue raised for the first time on appeal. He urged the Court to disregard the issue because the appellants failed to seek and obtain the leave of this Court to raise the issue. He referred to ADEGBUYI V.

MUSTAPHA (2010) ALL FWLR (PT.523) AT 1753 AT 1759 (RATIO 6). LAWRENCE V. A.G. FEDERARTION (2008) ALL FWLR (PT.426) 1901 AT 1904 (RATIO 2.). He stated that the date on the statement is a typographical error as the date of filing and when the statement was sworn to is clearly shown on the Court’s stamp. He posited that the respondent cannot be punished for the inadvertence of the commissioner for oaths to sign his portion of the statement.

According to counsel, the affidavit filed in support of the ex parte motion for summary judgment which was filed along with the writ of summons, statement of claim and the respondent’s statement on oath was signed by the commissioner for oath and that confirms the inadvertence of the commissioner to sign the statement on oath. RESOLUTION The appellants by a motion on notice filed on 8/6/20 sought the leave of this Court to raise and argue fresh issue not raised and argued at the lower Court. That application was granted on 22/6/20.

Therefore, the complaint of the respondent that no leave was sought and obtained by the appellants to raise the issue of failure to depose to the respondent’s statement on oath before a commissioner for oath has been overtaken by events. Order 3 Rule 2 (2) (c) of the High Court (Civil Procedure) Rules, 2009 of Delta State provides that every writ of summons shall be accompanied by written statement on oath of the witness or witnesses. It is a mandatory requirement and a condition precedent to a witness testifying orally before the Court. See in OKOBIEMEN v.

UBN (JALINGO BRANCH, TARABA STATE (2017) LPELR-43633(CA) AT 13-16(B-E). A statement on oath must be sworn to before it can be adopted as evidence before the Court. An unsworn statement is not a statement on oath required to be filed along with the writ. See MODIBBO V. HAMMANJODA (2014) LPELR-24184(CA) AT 27-29 (A-B). OSASUYI V. MUDASHIRU (2013) LPELR-20358(CA) AT 19-20 (F-E). The writ of summons in the instant case was accompanied by the respondent’s statement on oath. However, the statement was not signed by the commissioner for oaths.

It is on record that the respondent adopted the statement on oath as his evidence before the Court. Before adopting the statement, he stated that he deposed to the statement at the Registry of the Court. That evidence was not challenged under cross-examination. The record of appeal shows that all the processes listed under Order 3 Rule 2 (2) (c) of the High Court (Civil Procedure) Rules were filed along with the writ of summons together with the ex parte motion for summary judgment on 1st March, 2010.

The date of 25th February, 2010 typed on the affidavit in support of the ex parte motion was changed by hand to 1st March, 2010 and the commissioner for oaths signed the affidavit. The same thing was done on the second page of the writ of summons. All the processes including the statement of claim were filed on the same day. On the face of the respondent’s statement on oath there is evidence of payment for oath. The respondent signed the deponent column.

Taking into consideration the entire facts disclosed by the processes filed on 1st March and the fact that the commissioner for oaths signed the affidavit filed together with the statement on oath by the respondent at the same time, it is not difficult to come to the conclusion that the respondent deposed to the statement on oath but the commissioner inadvertently failed to sign it. On the facts and circumstances disclosed on record, it cannot be said that the statement adopted by the respondent as his evidence before the Court was not deposed to at all.

The situation would have been different if there was no payment for oath and the commissioner did not sign the other affidavit filed together with the statement on oath. The Court has always refused to visit the sin of the registrar on the litigant. See FAMFA OIL LTD. V. ATT. GEN. OF THE FEDERATION (2003) 18 NWLR (PT. 852) 453 AT 471. ORJI V. STATE (2019) 13 NWLR (PT.1688) 93. GBENGA V. APC (2020) 14 NWLR (PT.1744) 93. In this case, the respondent cannot be made to suffer for the obvious inadvertence of the commissioner for oaths. Issue 2 is resolved against the appellant.

Issue 3 is whether there was a valid and enforceable contract between the respondent and the appellants. On this issue, the appellant’s counsel submitted that from paragraphs 3-6 of the statement of claim, the respondent’s evidence under cross-examination and the evidence of 1st appellant and Chief Bubor (DW2), it is clear that the respondent had no agreement or contract with the appellants, he was an errand boy to his uncle, (DW2) or at the best an agent to DW2.

He further submitted that for an agreement or contract to be binding and enforceable, there must be offer, acceptance and consideration but apart from saying that he represented DW2 (Chief Bubor), the respondent did not plead and give evidence of the consideration furnished by him to the appellants in respect of the alleged oral agreement. There is therefore no valid and enforceable agreement. He argued that the absence of pleading and evidence of consideration or obligation on the part of the respondent renders any purported agreement between him and the appellants unenforceable.

He referred to BILANTE INT’L LTD. VS. N.D.I.C. (2011) 15 NWLR (PT. 1270) 407 AT 423, PARAS C-D. He contends that the learned trial Judge was wrong in giving judgment in favour of the respondent when there is no evidence of consideration, a basic and necessary element for the existence of a valid contract that is legally binding on the parties flowing from the respondent to the appellants.

The respondent’s counsel in his response submitted that there was a binding and enforceable oral agreement between the respondent and the appellants which was the basis upon which the appellants willingly and voluntarily made part payments of the respondent’s accrued entitlement and which said agreement was breached when the appellants refused and/or neglected to further pay the respondent his accrued entitlement.

He further submitted that an agreement can be oral or inferred from the conduct of the parties and notwithstanding the fact that the agreement in the instant case is oral, it is enforceable. He referred to DAMINA V. AKPAN (2011) ALL FWLR (PT580) 1298 AT 1300 RATIO 3. He posited that the test of the existence of a mutual assent between parties to an agreement is objective and must be outwardly manifested.

In the instant case, the appellants outwardly manifested the mutual, binding and enforceable agreement between them and the respondent when the appellants willingly and voluntarily made the part payment of the respondent’s accrued entitlements based on the oral agreement. He referred to A.G RIVERS STATE Vs. A.G AKWA IBOM STATE (2011) ALL FWLR (PT 579) 1023 AT 1033 RATIOS 2 & 3. RESOLUTION The law is that for a valid and binding contract to exist there must be an agreement, an intention to create legal relations, an offer and an unqualified acceptance of the offer and consideration.

See BALIOL (NIG) LTD V. NAVCON (NIG) LTD (2010) LPELR-717(SC) AT 16-17 (D-A). An agreement can be oral or inferred from the conduct of the parties thereto. Once there is mutuality of purpose and intention, an oral agreement or contract is enforceable. See TAURA V. CHUKWU (2018) LPELR-45990(CA) AT 16-17(F). NSITF V. ACCESS BANK PLC (2015) LPELR-25790(CA) AT 11 (A-C). ODUTOLA & ANOR V. PAPERSACK NIG. LTD (2006) LPELR-2259(SC) AT 25 (A-C), (2006) 18 NWLR (PT.1012)470.

In the instant case, the respondent gave evidence of the oral agreement between him and the appellants as a result of which the appellants paid the agreed monthly amount for some time before the payment stopped. The 1st appellant (DW1) admitted under cross-examination that it was based on the oral agreement between the respondent and the appellants that the agreed amount was paid to the respondent. He said they continued to pay the respondent until Chevron got to know about it and told him to stop. According to him, the payments to the respondent were made in error.

He said he was paying Chief Bubor $130 and $20 to the respondent. However, Chief Bubor who testified as DW2 confirmed the fact that the contract was for $550 per day. The 1st appellant’s share was $400 and his own was $150 per day. From the onset of the contract, the 1st appellant paid him $150 per day and did not owe him any arrears. That evidence knocked the bottom out of the case of the appellants that the respondent came to him after the contract was awarded and told him that $130 should be paid to Chief Bubor and $20 dollars should be paid to him.

DW1 said he was ordered to pay the full amount to DW2. He also said he told the respondent that DW2 had been asking for the backlog and he has been paying. However, DW2 under cross-examination and contrary to his statement on oath was emphatic that he was being paid his $150 per day from the beginning of the contract and Chevron supervisor did not order the appellants to pay him any arrears of money. The allegation of threat and harassment by the respondent was concocted by DW1 to avoid honouring an agreement voluntarily entered into by the parties.

If the respondent was not a broker or an agent, for what purpose was he introduced to DW1. Obviously, DW1 is not a witness of truth. No Court should accord any credibility to a witness who brazenly lied on oath. The lower Court was right to prefer the evidence of the respondent and rightly held that there was an oral contract between the respondent and 1st appellant. Issue 3 is resolved against the appellants. For the above reasons, I hold that this appeal has no merit. I hereby dismiss it. The judgment of the High Court of Delta State delivered in suit no. W/63/2010 on 17/5/2013 by C. E.

Ajilefu, J is hereby affirmed. There shall be 200,000.00 (two hundred thousand naira) costs in favour of the respondent and against the appellants. JOSEPH EYO EKANEM J.C.A.: I read in advance, the lead judgment of my learned brother, BOLAJI-YUSUFF, JCA, which has just been delivered. I agree with his lordship that the appeal has no merit. It is clear that there was an oral and binding agreement for the appellants to pay the respondent the sum of $20.00 per day. Dw1 admitted in cross-examination that it was based on the oral agreement that the amount was paid to the respondent.

The appellants by this course of conduct showed or admitted clearly that there was indeed such an agreement and confirmed the evidence of the respondent about the oral agreement. They cannot now seek to resile from their admission. See Sections 20 and 169 of the Evidence Act, 2011.

The contention by appellants that the payments to the respondent were made in error is unfounded as an erroneous admission is not known to the law. Again, a party would not be allowed to renege from his admission. See Zenith Plastics Ltd v. Samotech Ltd (2007) 16 NWLR (Pt. 1060) 315 and Crown Flour Mills Ltd v. Olokun (2008) 4 NWLR (Pt. 1077) 254. I therefore agree with my learned brother that this appeal has no merit. I dismiss the same and I abide by the consequential orders in the judgment of my learned brother.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO J.C.A.: I have read in advance, the judgment of my learned brother MISITURA OMODERE BOLAJI-YUSUFF, JCA. I have no hesitation in agreeing with the reasoning and conclusion arrived at by my learned brother. I too hold that the appeal lacks merits and is accordingly dismissed. ​I abide by all consequential order (s) in the lead judgment.

Judgment

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment) : This appeal is against the ruling/judgment delivered on 4th May 2021 in the High Court of Plateau State sitting in Jos. In the High Court (the Court below), the Appellant was the Plaintiff.

The Respondents were the Defendants. ​The claim of the Appellant against the Respondents brought under the Undefended List procedure was for the following: (a) One Hundred and Seventy-Two Million, Six Hundred and Ninety-Eight Thousand, Seventy-Eight Naira (N172,698,078) being outstanding sum payable to the Appellant by the Respondents. (b) 10% interest on the above sum from September, 2019 till judgment and thereafter until satisfaction of the judgment sum. (c) Seventeen Million, Two Hundred and Sixty-Nine Thousand, Eight Hundred and Seven Naira Eighty kobo (N17,269,807,80) being professional fees charged by the Appellant’s solicitors. (d) Costs of the action.

In summary, the case of the Appellant in the Court below as can be made out from the affidavit in support of the claim is as follows: ​The Appellant is a registered company that carries out sports businesses particularly football. In 2012, it approached the 2nd Respondent for sponsorship in the Nigerian National League. The 2nd Respondent agreed to sponsor the Appellant on the condition that the Appellant qualified to play in the Nigerian National League.

Following the understanding reached between the Appellant and the 2nd Respondent, the latter made several financial approvals in support of the Appellant for 2012/2013, 2013/2014, 2014/2015 and 2015/2016 football seasons. Although the approvals were made, not all payments were made. The total amount that remained unpaid was N172,698, 078.00. Although the Respondents filed a notice of intention to defend the suit, it nevertheless raised a preliminary objection to the hearing of the suit.

In the notice of preliminary objection, the Respondent challenged the competence of the suit on the ground that it did not disclose a cause of action and that the Appellant had no capacity to institute the action. ​The defence of the Respondent as can be made out from the affidavit in support of the notice of intention to defend is as follows: That there was no contract relationship between the parties regarding the sponsorship of the activities of the Appellant as no documents were signed between the parties to that effect.

Rather, the Appellant regularly approached the 2nd Respondent for financial assistance to run its affairs. That various sums of money released by the 2nd Respondent to the Appellant in aid of its footballing activities were done as a gesture of goodwill and not in fulfilment of any contractual obligation towards the Appellant. In the affidavit in support of the preliminary objection, the Respondent averred that apart from the non-disclosure of cause of action, the suit was not instituted by the true representatives of the Appellant as Mr.

Godfrey Sanusi Hamza was never authorized to institute the action. In the counter-affidavit in opposition to the notice of preliminary objection, the Appellant averred that Mr. Godfrey Sanusi Hamza was duly authorized by the Board of Directors to institute this suit. The resolution of the Board of Directors was annexed to the counter-affidavit and marked Exhibit 11. ​The Court below considered the preliminary objection and held that the person who instituted the action did so on the authority of the Board of Directors but that no cause of action was disclosed.

Although the Court below held that no cause of action was disclosed, it nevertheless proceeded to consider the suit on the merit and dismissed the claim of the Appellant. The Appellant has proceeded to this Court by a notice of appeal filed on 30th June, 2021. The Notice of Appeal contains three grounds of appeal. From the three grounds of appeal the Appellants presented the following two issues for determination in the Appellants’ brief filed on 2nd November, 2021: 1.

Whether there was a miscarriage of justice and denial of fair hearing and fair trial against the Appellant – Distilled from ground 1. 2. Whether a valid and enforceable contract exists between the Appellant and the 2nd Respondent warranting the Appellant to make a claim against the Respondent in the sum of N172,698,078.00 (One Hundred and Seventy-Two Million, Six Hundred and Ninety-Eight Thousand and Seventy-Eight Naira) – Distilled from grounds 2 and 3. ​The Respondents also formulated two issues for determination in the Respondents’ Brief filed on 26th November, 2021.

They are reproduced below: 1. “Whether the Appellant was afforded a fair hearing before the lower Court. 2. Whether the lower Court was right in dismissing the Appellant’s claim.” Arguing issue 1, learned counsel for the Appellant contended that the Court below did not consider the reply on points of law filed by the Appellant. It was further contended that had the Court below considered the reply on points of law it would not have come to the conclusion it came to.

This, it was submitted, amounted to denial of fair hearing which vitiated the whole proceedings requiring the judgment of the Court below to be set aside. The Court was referred to Ogunsanya v The State (2011) LPELR – 2349 SC. ​Although, learned counsel for the Appellant had submitted on issue 1 that the alleged violation of the right to fair hearing rendered the proceedings a nullity, by an unexpected twist on issue 2, he contended that the Court can rehear an aspect of the case that the Court below omitted to consider pursuant to Section 15 of the Court of Appeal Act.

Learned counsel for the Appellant therefore urged the Court to re-hear the suit at least the aspect of whether there was in existence a contract between the parties. Arguing the merit of the Appellant’s suit, the learned counsel for the Appellant contended that the averments in paragraphs 4, 5, 7 and 8 particularly 8(g) of the affidavits in support of the originating process were not controverted by the Respondents. These averments, it was submitted, are deemed admitted. It therefore means that the Respondents are deemed to have admitted the sum of N172,698,078 which remains unpaid.

That the consideration for making the approvals was to avoid a breach of peace and that a condition precedent to be fulfilled for the approval was that the Appellant must qualify for the Nigerian National League which it did. Learned counsel for the Appellant dwelt at length on the requirements of a valid contract. It was the contention of Appellant’s counsel that the requests made by the Appellant were offers while the endorsement of approvals by the 2nd Respondent were the acceptances.

By not approving the amount requested it was contended, the 2nd Respondent made counter offers. ​It was contended that the qualification of the Appellant for the Nigeria National League amounted to a valuable consideration. That another consideration the Appellant furnished was that it was a route to peace in Jos. On issue 1, learned counsel for the Respondents argued that the Appellant was afforded the opportunity to present its case.

That the judgment/ruling of the Court below shows that all processes filed and arguments on the preliminary objection were duly considered as well as the affidavit evidence which formed the bulk of the Appellant’s case. The Appellant, it was argued, is not challenging the holding of the Court below that failure to debunk material depositions and arguments by the Respondent on the preliminary objection amounted to admission of the substance of the objection.

On Issue 2, it was contended that on the face the material contradictions in the affidavit evidence, the only order the Court can make if necessary is an order remitting the claim back to the Chief Judge of Plateau State for re-assignment to a different Judge for re-hearing. ​It was contended that the Appellant failed to controvert the deposition of the Respondents to the effect that the Respondents did not owe any contractual obligation to pay the monetary sum claimed by the Appellant but only addressed the issue of the Appellant’s capacity to sue.

It was contended that a look at the total depositions in support of the claim of the Appellant and the exhibits annexed thereto will reveal a stark absence of a valid cause of action against the Respondents. In the absence of any contract document or written agreement between the parties the Appellant it was contended, was attempting to substitute concrete evidence with his address and therefore made heavy whether of what they argued to be admissions of fact on the part of the Respondents.

It was contended that the Respondents not only effectively controverted every material deposition in the Appellant’s supporting affidavit but also went further to attack the foundation upon which the Appellant’s claim was built upon. That the Appellant resorted to trying to use its address as contained in its reply on points of law as a substitute for further evidence. ​It was contended that the Appellant’s depositions were vague and did not support the documentary evidence and ought not to be acted upon.

It was contended that after examining paragraphs 4 and 5 of the affidavit in support of the writ the following questions arise: (1) Who did the Appellant approach with the purported proposal?

Was it the Governor of Plateau State in person or any agency of Government as represented by whom? (2) Where is documentary evidence of the purported proposal? (3) Who accepted the proposal and where is the documentary evidence of such acceptance. (4) Where is the contract document in which the terms and conditions to which parties intended to be bound are stated? (5) Who signed any contract (if any) on behalf of the parties and where is the evidence of such signature? It was contended that no document(s) was attached evidencing the above posers.

It was further argued that none of the exhibits attached to the affidavit in support of the writ supports or lends credence to the claim of the Appellant. Rather, some of the exhibits actually lend credence to the Respondents’ contention that the money was released to the Appellant as a gesture of goodwill and no more. The Court was referred to Exhibits ‘A1’ and ‘A2’ attached to the Affidavit in Support of the Writ at pages 33 and 36 of the record.

It was submitted that Exhibits A3, B1, B3, B4 and B5 at pages 37, 39, 44, 51 and 53 of record were not certified even though they were official communications between Government Agencies and therefore public documents. Exhibit ‘B’ it was argued, was not an admission of the claim as contended by the Appellant’s counsel. Exhibit B it was contended, shows that financial assistance is still being rendered or extended to several football clubs in the state and not as a matter of contractual obligation.

In the reply brief apart from the submission that Exhibits A3, B1, B3, B4 and B5 having been annexed to affidavit and did not need to be certified, the reply brief was a re-argument of the appeal. A reply brief shall deal with new points arising from the Respondents brief. See Order 19 Rule 5(1) of the Court of Appeal Rules 2021. Appellant’s counsel is not permitted to re-argue the appeal in the reply brief as he did. ​Fair hearing envisages that both parties to a case be given an opportunity of presenting their respective cases without let or hindrance from beginning to end.

It also envisages that the Court or Tribunal hearing the case of the parties should be fair and impartial without showing any degree of bias against any of the parties. See Alsthom S.A v Saraki (2005) LPELR–435 SC page 23.

Although, the right to fair hearing is a constitutional right, it is not taken seriously by Litigants as it is peddled by Litigants at the slightest opportunity. This is why Tobi, JSC (of blessed memory) in Magaji v Nigerian Army (2008) LPELR-1814 observed that it has become fashionable for litigants to resort to their right to fair hearing on appeal as if it has become a magic wand to cure all their inadequacies at the trial.

Five years later, Chukwumah-Eneh, JSC in Ekunola v C.B.N (2013) LPELR 20391 SC also observed that “fair hearing” has become a whipping principle for counsel trying to catch at a straw to sustain a modicum of standing in a hopeless case where the case is as dead as dodo. Fair hearing he said should be invoked with every sense of seriousness.

The “reply on points of law to the defendants written address in support of notice of intention to defend” which, the Appellant argued vigorously that was not considered by the Court below is at page 243–251 of the record and not page 282 to 287 of the record as he claims in the Appellant’s Brief at page 6. It is clear from that address that the Appellant is parsimonious or economical with the truth when he calls that process a reply on points of law to the address of the Respondent in the Court below. It was a re-address; this time at great length and more copious.

It was not a reply on points of law. The process is unknown to law. The Appellant cannot file a process unknown to the Plateau State High Court (Civil Procedure) Rules, 1987 and proceed to this Court to complain that he was denied fair hearing. Fair hearing has not been invoked in the circumstances with any sense of seriousness. Fair hearing is not a magic wand and counsel should desist from whipping it unnecessarily.

In a hopeless case, no matter the amount of beating it takes it will not cure any inadequacies in the case. ​In the instant case, the parties were given the opportunity of presenting their respective cases without let or hindrance from the beginning to the end. It has not been shown that the Court below was unfair or partial or showed any degree of bias against any of the parties.

The Appellant was not denied fair hearing when the Court below failed to make any special mention of the purported reply on points of law which was merely a more lengthy and copious re-argument by Appellant’s counsel which is unknown to the Plateau State High Court (Civil Procedure) Rules, 1987. Issue 1 is therefore resolved against the Appellant and in favour of the Respondents. Photocopies of public documents annexed to an affidavit must be certified.

See Section 104 of the Evidence Act, 2011; Daniel Tayar Transport Enterprises Company Nigeria Ltd & Ors v Busari & Anor (2000) LPELR-5541 CA, Fawehinmi v Inspector General of Police (2000) FWLR (Pt 12) 1952 at 2023, Onyali v Okpala (2001) 1 NWLR (Pt. 694) 282 at 303, Ministry of Lands v Azikiwe (1969)4 NSCC 31 AT 37–38, Araka v Egbue (2003) 33 WRNT and Emmanuel v Umana & Ors. (2016) LPLER–40037 SC.

From the definition of public document in Section 102 (a) and (b) of the Evidence Act, 2011 it is not only exhibits A3, B1, B3, B4 and B5 that are photocopies of public documents, but exhibits A1, A2, B2, B6 and B7 as well. They were not certified. The Court cannot therefore look at them. If the Court closes its eyes to those documents, there is no way the claim of the Appellant can succeed even if the Court considers the claim as learned counsel for the Appellant urged the Court to do.

It is the law that before a contract or agreement can be said to have come into existence in law, there must be an unmistaken and precise offer and an unconditional acceptance of the terms mutually agreed upon by the parties thereto. This means that the parties to the agreement must be in consensus ad idem as regards the terms and conditions freely and voluntarily agreed upon by them. If the terms and conditions of the agreement are uncertain or vague, there can never be a valid agreement known to law which can be said to present itself for enforcement.

See Odutola v Papersack (Nig) Ltd (2006) 18 NWLR (Pt. 1012) 470 and Okubule v Oyagbola (1990) 4 NWLR (Pt. 147) 723. As rightly pointed out by learned counsel for the Respondents there is no written agreement between the parties. There is therefore no evidence of any precise offer. There is no evidence of any unconditional acceptance of any agreed terms. Apart from this, Exhibits A3, B4 and B5 at pages 37, 51 and 53 of the record relied upon by the Appellant in his affidavit if considered would do violence to the claim of the Appellant.

These exhibits clearly state that what the Appellant was receiving from the State Government was yearly financial assistance. Respondents would not therefore be sued for not rendering the assistance they promised to render. They had no contractual obligation to the Appellant. Issue 2 is also resolved against the Appellant and in favour of the Respondents. Both issues having been resolved against the Appellant and in favour of the Respondents, the appeal should be dismissed for want of merit. It is accordingly dismissed by me. Parties shall bear their respective costs of the appeal.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I have had the advantage of reading in advance, the copy of the lead judgment just delivered by my learned brother JAMES SHEHU ABIRIYI JCA, (PJCA). ​I agree with the reasoning and conclusion reached thereat. I also dismiss the appeal for want of merit and abide by the orders made therein.

OLASUMBO OLANREWAJU GOODLUCK, J.C.A.: I have read the advance copy of the judgment delivered by His Lordship, Hon. Justice James Shehu Abiriyi, PJCA, I associate myself with the resolution of the all issues for determination espoused by his Lordship. For the fuller reasons given in the judgment, I align with the orders of dismissal of the appeal.

Judgment

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment) : Appellant filed this appeal against the judgment of the Kano State High Court in Suit No. K/456/2016, delivered on 5th October, 2018 by Hon. Justice A. R. D. Muhammad, whereof the learned trial Judge entered judgment for the plaintiff (now Respondent). At the trial Court, the Respondent (as plaintiff) had sought the following reliefs: (a) A declaration that the Defendant is only entitled to the sum of N1,090,000.00 being the consideration for the sale and purchase of the property at Unguwa Uku Tarauni Local Govt.

Area, less the sum of N60,000.00 that has been collected by the Defendant, through agent. (b) To pay the sum of N150,000.00, being the plaintiff’s solicitor professional fees, for prosecuting this action or. (c) Alternatively, to pay the sum of N500,000.00 as general damages for breach of contract; (d) Cost of action.

The Defendant (Appellant herein) filed a defence and staked some claims (without stating that he was counter-claiming), as follows: (a) A declaration that there was no valid contract between the plaintiff and the Defendant. (b) The entire action be dismissed as it is frivolous, mischievous and gold-digging exercise. (c) To pay the Defendant the sum of N500,000.00 as general damages for depression and trauma, caused to the Defendant as a result of this suit. (d) To pay the sum of N160,000, being the solicitors fee for prosecuting the suit.

After hearing the case and considering the evidence and addresses of Counsel, the trial Judge gave judgment to the plaintiff (Respondent) saying: “It is clear from the evidence of PW1, PW2 and that of the defendant, the defendant unilaterally revoked the contract, after it was completed. The effect of this unilateral revocation of the contract by the defendant in law amounted to a breach of contract.

This type of contract in which the remedy of specific performance is most granted by the Court, a mere award of damages in such a case will defeat the just and reasonable expectation of the parties or at least the plaintiff in this case… In this instant case, the breach of contract by the defendant cannot be remedied by damages, because the amount of damages prayed for by the plaintiff is half the contract price of the plot of land sold by the defendant. In this case, it will be more equitable to order for specific performance than order for damages.

The 2nd reason for this decision is because it is well known to the defendant that the plaintiff altered her position by disposing her shop with its goods at Brigade and other personal belongings in order to raised (sic) the money. Its therefore infer (sic) order for damages as this will adequately compensate her for the lost (sic) of her shops and personal effects.

Consequently, judgment is hereby entered for the plaintiff against the defendant as follows: 1) It is hereby declared that the defendant ALHAJI ANAS MUHAMMAD having sold the Plot No. 45C to the plaintiff ZAINAB SHEHU ALBASU is entitled to perfect the contract by receiving the sum of N1,090,000.00, being the balance of the sale of plot No. 45C situate at Unguwa Uku Tarauni Local Government Area of Kano State to the Plaintiff. 2) The defendant is hereby ordered to surrender possession of the Plot No 45C situate at Unguwa Uku Tarauni Local Government Area of Kano State to the Plaintiff. 3) Cost of this action… N50,000.00 to plaintiff.” (See pages 259 to 261 of the Records) That is the Judgment Appellant appealed against, as per the Notice and Grounds of Appeal filed on 21/10/18 – See pages 271-274 of the Records of Appeal.

Appellant filed his brief of argument on 19/10/2020, which was deemed duly filed on 12/7/2021.

He distilled two (2) issues for the determination of the appeal, as follows: (1) Whether the giving of an occupancy permit of land and payment of deposit, as opposed to part payment by the Plaintiff/Respondent, could be a ground for inferring that a contract of sale of land has been concluded? (Grounds 2, 6, 7, 8 and 11) (2) Whether from the facts and circumstances of this case, the respondent proved her case to be entitled to the reliefs granted by the Honourable trial Court? (Grounds 1, 3, 4, 5, 10 and 12) The respondent did not file any brief but was served with the Appellant’s brief.

The appeal was re-heard on 23/6/2022, when Appellant adopted the brief. Arguing the appeal, Appellant’s Counsel I. A. Elyakub, Esq., on issue one, said that giving a copy of the land title to the respondent in this case, did not pre-supposed that a contract had been made; that the payment, without the knowledge or tacit acceptance of the Appellant of the sum of N60,000 to the PW1 as deposit, did not imply that a contract paid had been agreed upon. Thus, Counsel said the findings of the trial Court was not justified in law and ought to be set aside.

Counsel argued that the handing over of land title to a prospective buyer is usually done during the pre-contract stage of a sale of land, for the buyer to investigate the title of the vendor at the relevant government ministry. He relied on the text book by S. O. Imbanobe: Legal Drafting Conveyancing (2007) P. 216. He said that such action does not confer any aura of obligation or finality on the contract, which is yet to be finalized, and nothing is conveyed or transferred at that stage.

Counsel also urged us to examine the import of deposit, as opposed to part payment, in the scheme of sale of land; that it is trite, that part payment presupposes the conclusion and finality of an agreement or contract, but deposit does not. He relied on Mini Lodge Ltd Vs Ngei (2009) LPELR-1877 SCB. Counsel said the difference between part payment and deposit was made in the case of Biyo Vs Aku (1996) 1 NWLR (Pt 422), where it was held: “There is certainly a difference between a deposit made in purchase of land and part payment.

In the case of deposit, the vendor is at liberty to assume, after waiting for a reasonable period of time, that the purchaser/buyer was no longer interested. The vendor could sell to any other prospective buyer thereafter and return the purchaser’s deposit… In the case of part payment… the law is clear… that the contract for the purchase has been concluded and is final, leaving the payment of the balance of purchase price outstanding to be paid.

The contract for the sale and purchase is absolute and complete for which each party can be in breach for non-performance and for which action lies for specific performance.” Thus, Counsel said, title has passed upon payment of part payment and the contract cannot be rescinded by the vendor, and if the purchaser is unable to pay the balance, the vendor can sue to recover it. But that is not so, in a situation of payment of deposit, which connotes incomplete contract. He relied on the case Onanubi Vs Ogunfolu (2009) LPLER-3730; (2009) ALL FWLR (Pt 496) 1926.

Counsel said the trial Court was wrong to have foisted a contract on the Appellant; he said that by law, a Court cannot foist a buyer on an unwilling seller; that Appellant had constantly pleaded and showed that, though he was in custody of the two plots of land, it was clear that he could not bind the real owner with the transaction against the express stipulation of the real owner, his sister. He referred us to the Exhibit E (paragraph (e) on Pages 211-212 of the Records of Appeal.

Counsel added that Appellant therefore had no power to convey a property he was not the owner and relied on Ashaye Vs Akerele (1996) LPELR-25360 (SC), Gbadamosi Vs Akinloye & Ors (2013) LPELR-20937 SC; Adelaja Vs Fanoiki (1990) LPELR-110 SC; Udosen Vs Nde (2019) LPELR-47157 CA.

Counsel said that the trial Court was therefore wrong to order that the balance of N1,090,000.00 be paid to Appellant, when it was quite glaring, that the land in question did not belong to Appellant. ​ Counsel added that the findings of the trial Court, on page 254 of the Records, was strange and perverse, when he held: “With the deposit of N60,000.00, it is sufficient consideration for the sale of the property known as plot No. 45C no consideration is small to conclude a contract.” He argued that it is well settled, that payment of full consideration or purchase price, is a sine qua non for the validity of a contract of sale of land; he said that payment of mere deposit clearly negates that position of the law, and it is immaterial that the seller had yielded possession to the purchaser.

He relied on Dakour vs LSURB (2015) ALL FWLR (Pt 809) 917, Ogundalu Vs Macjob (2015) LPELR-24458, Odusoga Vs Ricketts & NWLR (Pt.511) and Achonu Vs Okuwobi (2017) ALL FWLR (Pt 905) 1294 at 1330 SC, where it was held: “In contract of sale of land, failure to pay the purchase price constitutes fundamental breach, which obviously goes to the root of the case upon which the Court cannot decree specific performance.” Counsel further called us to review the evidence of PW1, which tried to prop up DW3 to do his bidding (of PW1) with a view to conferring the benefit of same on the Respondent, in the event the Appellant agreed to deal with him; Counsel said that same had a fair reaching implication on the alleged contract, foisted or sought to be foisted on the Appellant.

On issue 2, whether the Respondent had proved her case to be entitled to reliefs granted, Counsel answered in the negative. He said that from the pleadings and evidence adduced, the scale of justice on the balance, tilted in favour of Appellant; that the trial Court erroneously placed the burden of proof on the Appellant, against the dictates of law. Counsel queried the findings of the lower Court that PW1 was an agent of the Appellant, within the factual circumstance of the case. He asserted that there was no agency relationship between the two – PW1 and Appellant.

He however referred us to pages 1 and 14 of the Records (paragraphs 10, 12 and 13 of the PW1’s testimony), where he stated that the Appellant requested him to look for buyer; and permitted that a sign post be placed on property for sale of the land as plots belonging to Appellant; that he was promised a commission of 5% of the sale price, upon sale; that the (PW1) had put his phone number on the post for the sale of the property. The PW1 thereafter found the Respondent and linked her up with the Appellant to negotiate with Appellant, directly.

Counsel said that under cross-examination, PW1 said he was not part of the negotiations between the Appellant, and that the Respondent and the Appellant reached the agreement between them, but in his presence. Counsel also said that PW1 had said that there was a contract between the parties and that, in fact, he (PW1) gave out a copy of the occupancy permit of the land to the Respondent, on the instruction of the Appellant.

But Counsel said that the trial Court was wrong to hold based on those pieces of evidence, that the Appellant “authorized the PW1, Bala Mai bulo to act as his agent in the sale of Plot 45C to the plaintiff.” Counsel further said that, assuming, but without conceding, that PW1 was agent of the Appellant, that that agency did not go beyond finding a suitable buyer, without more. He added that the mandate to look for purchaser was not a mandate to sell, as reached by the lower Court.

He relied on the case of Incar Nigeria Plc & Anor Vs Bolex Enterprises (Nigeria) (2001)5 SCNJ 460 at 473, to say that an agent with a limited instruction to just look for a buyer is not entitled to conclude a sale agreement for and on behalf of the principal, as PW1 did, in this case. He added that the burden of proof remained on the Respondent, to established her claim that there was a contract of sale between Appellant and the Respondent, and he relied on 136 of the Evidence Act.

He referred to some paragraphs of the pleadings of the two parties to show that negotiation was still on going, with respect to the property the respondent showed interest, which he told the Respondent that it belonged to his sister; Counsel referred to the letter by Appellant’s lawyer (Exhibit E) which also disclosed that the said plot was that of his (Appellant’s) sister; Counsel said that the Respondent later wrote to threaten Appellant for breach of contract, while they were still negotiating.

Counsel said the trial Court was therefore wrong to hold on pages 235-236 of the Records, that Appellant admitted paragraphs 1 to 15 of the statement of claim of the Respondent.

He referred us to Paragraphs 4 to 18 of the pleadings of Appellant – Pages 56 – 57 of the Records of Appeal, and argued that the Respondent did not contest the denials by Appellant, as per the said Paragraphs of the Statement of defence, in the reply she filed; Counsel said that Appellant’s evidence on those averments were not challenged, under cross-examination, and that the DW1’s Statement on Oath were not also challenged.

Counsel said the trial Court had therefore held wrongly, that Appellant had admitted the pleadings of Respondent – Paragraphs 1 to 15 and that there was a valid offer from Appellant, which was accepted by the Respondent; Counsel said that the Court had wrongly construed that by the payment of the ₦60,000, deposit, to PW1 (presumably on behalf of the Appellant), that there was a valid contract between Appellant and Respondent.

He urged us to resolve the issues for Appellant, and listed the factors of a binding contract as stated in the case of AdegboLa Vs Insight Communications Ltd (2017) ALL FWLR (Pt.896) 1833, Orient Bank Nig. Plc Vs Bilante International Ltd (1997) 8 NWLR (Pt.515) 37, Omega Bank (Nig) Plc Vs OBC Ltd (2005) 8 NWLR (Pt.928) 547. RESOLUTION OF ISSUES Quite sadly, the Respondent filed no brief in this appeal, and so has not contested the claims and submissions of the Appellant. But that does not mean that the arguments and brief of Appellant can be treated as unchallenged.

By law, failure to file a respondent’s brief, does not amount to admission of the Appellant’s case and to success of the appeal. See Onyenawul Vs Onyenawuli (2017) LPELR – 42661 (CA) and Skye Bank & Anor Vs Akinpelu (2010) LPELR – 3073 SC, where it was held: “But I must add quickly, this is firmly established, that failure to file a Respondent’s brief, is immaterial as an Appellant, must succeed or fail, on the strength of his own brief or case. See the cases of Management Enterprises Ltd. & Anor v. Otusanya (1987) 4 S.C. 367; (1987) 4 SCNJ 110; John Holt Ventures Ltd. v.

Oputa (1996) 9 NWLR (Pt.470) 101 AT 112 and Onyejekwe v. The Nigeria Police Council & Anor (1996) 7 NWLR (Pt.463) 704 AT 710 just to mention but a few.” I shall consider this appeal on the two issues, donated by the Appellant, and shall take them, together.

“Was the trial Court right to order specific performance of contract, in favour of Respondent, in the circumstances of this case, when it held that the N60,000.00 deposit paid by Respondent to PW1 (as agent of the Appellant) amounted to conclusive contract for the sale and purchase of the disputed land between the parties? ​ A brief facts of the case at the lower Court, showed that the PW1 (one Bala Mai Bulo) linked up the Appellant and the Respondent for the purpose sale/purchase of a plot of land (No. 45c) situate at Ungwa-Uku Local Government Area, Kano State.

The said PW1 had the authority of the Appellant to search for a buyer for this plot; PW1 said that the Appellant met him in 2007 in his block industry and mandated him to sell his plot by seeking for a buyer. There was no written authority given to him by the Appellant, but there was verbal agreement between them, and Appellant promised to pay him (PW1) 5% of the price of the land, when sold. He (PW1) reached the Respondent, who established contact with Appellant by phone calls, and they agreed on the price of the land.

PW1 said the Respondent paid a deposit of N60,000.00 to him (PW1) for the land; that the Respondent was given one month within which to pay for the land. He (PW1) said the transaction was not concluded by phone; that the Respondent came and met the Appellant and they agreed. PW1 admitted he was the one that collected the N60,000.00 deposit; that Appellant did not instruct him (PW1) to pay the said money to his (Appellant) bank account. He also said there was no written agreement, as the Respondent did not pay the agreed amount (cost of the land).

He (PW1) had, however, drafted agreement with the Respondent in respect of the deposit he (PW1) collected from Respondent. He said he prepared the said agreement in two copies, but the Appellant refused to collect his own copy. (See the cross-examination of PW1, on Pages 27 – 28 of the Records of Appeal). The trial Court, had held that there was a conclusive sale of the property; that with the deposit of N60,000, it was sufficient consideration for the sale of the property, known as plot 45c; that no consideration is small to conclude a contract. (See Page 254 of the Records of Appeal).

The trial Court further said on Page 235 – 236 of the Records of Appeal: “There is no contention between the parties that the Plaintiff and the defendant agreed on the sale of a plot of land at Ungwa-Uku quarters Kano. There is no further contention between the parties that the Plaintiff agreed to purchase the plot which they negotiated its price to be N1,090,000.00, which later the defendant re-negotiated and sold to her at the cost of N1,150,000.00.

These can be seen from the averments in paragraphs 9, 10, 11, 12, 13, 18, 19 and 20 of the Statement of claim and Paragraph 1 of the Statement of defence, in which the defendant admitted paragraphs 1 to 15 of the Statement of claim.

Therefore what is admitted on the pleadings need no proof.” On Page 239 of the Records, the trial Court, further said: “Now the Plaintiff after the transaction and upon depositing the sum of N60,000 and a written agreement executed, asked for the title document of plot purchased, for her to make search at the Ministry of Land & Physical Planning, PW1 the agent of the defendant, gave her Occupancy No. 45c 304829 of Plot No. 45c. Now the land which the defendant pleaded belongs to his sister was the one in front and which he also stated it to be the one in front.

However, the fact that the Plaintiff was asked to choose and then given Exhibit B to make search, this conclusively proves, there has been no mistaken identity or mutual mistake as to the land sold to the Plaintiff. And he confirmed to the Court that the land in front is the one called 45c, which the Plaintiff was given the Occupancy permit for it.

I therefore find there was no mutual mistake as to the land the Plaintiff negotiated, and I so hold.” I think a lot of legal errors and absurdities can be traced in the above findings and holdings of the learned trial Court, which, in my view, resulted in a perverse decision, reached by the trial Court, that there was a contract of sale of land between Appellant and Respondent.

The PW1 may have acted as the agent of the Appellant for the purpose of sourcing a buyer for the landed property the Appellant wanted to sell, but by the admission of the PW1 (now witness of the Respondent), that agency did not go beyond searching for a buyer and arranging for the Appellant to do the sale. Of course, the sale was to be done by the owner of the land – Appellant (or his sister, in respect of her land – Plot 45c). By the Respondent’s evidence, through the PW1, the collection of the deposit of N60,000.00 was entirely the arrangement/agreement between PW1 and the Respondent.

And PW1, even told the Court that the money was not remitted to the Appellant, and that Appellant refused to collect the copy of the agreement which he (PW1) made with the Respondent on the said payment of deposit. The PW1 also told the Court, that the price Appellant wanted to sell the land was not paid by the Respondent; that Respondent was given one month to pay, but she failed!

What then did the learned trial Judge mean, when he said: “With the deposit of N60,000.00, it is sufficient consideration for the sale of the property known as Plot No.45c, no consideration is small to conclude a contract.” Deposit made towards negotiation for purchase of land cannot be the consideration for the land.

The learned trial Judge had made a finding that the cost of the property was N1,150,000.00 and that the N60,000.00 paid by Respondent, to PW1 (purported agent of Appellant) was a deposit (which was never paid or transmitted to the Appellant!) The said N60,000.00, cannot therefore be sufficient consideration for the alleged sale of the property. There is also evidence, which the Respondent did not challenge, and which the trial Court made a finding on, that the plot No. 45C belonged to Appellant’s sister, who never engaged PW1 directly to search for a buyer.

Of course, even if the Appellant had had the consent of his sister, to scout for a buyer for her said land, it would take only the sister (as the owner of the land) to transfer title on the land to a buyer, not the Appellant. Appellant had pleaded that fact, in paragraph 6, 7, 8, 9 and 10 of the Appellant’s statement of defence (page 56 of the Records of Appeal) and these facts were not controverted by the Respondent.

The Exhibit E, the letter by Appellant’s lawyer, had also established that fact, clearly, that the Plot No. 45c belonged to Appellant’s sister, and Appellant had no power to transfer to Respondent. ​ The learned trial Court cannot therefore make an order of specific performance for the transfer of title to the above plot of land (No. 45C) to the Respondent by Appellant, when evidence showed Appellant was not the owner of the said land. Appellant cannot give what he does not have and so that order was a nullity.

See the case of Ashaye Vs Akerele (1966) LPELR – 25360 (SC), and Gbadamosi & Ors Vs Akinloye (2013) LPELR – 20937 (SC). The fact that the Respondent paid a deposit of N60,000.00 to PW1, for the purpose of showing interest towards purchasing the said land, cannot amount to a conclusive contract to sell/buy the said land, even if the PW1 were to be the agent of the Appellant, for that purpose. This is because, a mere deposit of money to express interest in property, is not conclusive evidence of payment for the property.

And this should be distinguished from payment of part payment of cost of a property, which is usually done, after a conclusive agreement, to buy/sell, and the parties are in agreement that part payment be paid, while the balance would be paid, subsequently. See the case of Mini Lodge Ltd Vs Ngei (2009) LPELR-1877 SC, where it was held: “In a contract for sale of property, where part payment was paid, the law is that the contract for purchase has been concluded and is final, leaving the payment of the balance outstanding to be paid.

The contract for the sale and purchase is absolute and complete for which each party can be in breach for non-performance and for which an action can be maintained for specific performance. In the instant case, the plaintiff/appellant and the 1st respondent were not in agreement about the sale of the property.

The intention of the appellant to purchase the property was not effectively communicated to the 1st respondent.” The difference between payment of deposit and part payment for purchase of land, was clearly made in the case of Biyo Vs Aku (1996) 1 NWLR (Pt 522) 1, where it was held on pages 24-25, as follows: “There is certainly a difference between a deposit made in purchase of land and part payment.

In the case of deposit, the vendor is at liberty to assume after waiting for a reasonable period of time, that the purchaser/buyer was no longer interested, the vendor could sell to any other prospective buyer thereafter and return the purchaser’s deposit. In the case of part payment… the law is clear… that the contract for the purchase has been concluded and is final, leaving the payment of the balance of purchase price outstanding to be paid.

The contract for the sale and purchase is absolute and complete for which each party can be in breach for non-performance and for which action lies for specific performance.”

See again the case of Ashaye Vs Akerele (1966) LPELR-25360, on the nullity of ordering a person who has no power to convey title to property, to do so: “…having regard to Forrer v.

Nash 35 Beav. 167 where Romilly M.R. at page 171 said- “I am of opinion that when a person sells property which he is neither able to convey himself nor has the power to compel a conveyance of it from any other person, the purchaser, as soon as he finds that to be the case, may say, ‘I will have nothing to do with it.’ The purchaser is not bound to wait to see whether the vendor can induce some third person (who has the power) to join in making a good title to the property sold.

“and to In re Bryant and Barningham’s Contract (1890) 44 Ch.D. 218 where it was held that a purchaser who had contracted with vendors as trustees for sale and paid a deposit could recover that deposit when upon investigation of title it appeared that the vendors had no power of sale until the death of the existing tenant for life so that notwithstanding the offer of the trustees to obtain a conveyance from the tenant for life the purchaser could not be compelled to enter into a new contract with the tenant for life, and also having regard to Harold Elliott and H. Elliott (Builders), Limited v.

Pierson (1948) Ch. 452 where Jarman J., (as he then was) said at page 456 – “The law is that a vendor who has or can compel the assurance of all necessary interests in the subject-matter of the sale may enforce the contract as – see for instance the decision of Astbury J., in In re Hailes and Hutchinson’s [1920] 1 Ch. 223, where the cases are collected…” Per LEWIS, JSC In the case of Gbadamosi & Ors Vs Akinloye & Ors (2013) LPELR-20937 SC, my Lord Onnoghen JSC (Later CJN), held that no man can give what he does not have, when he said: “It is settled law that you cannot give what you do not have, otherwise known as the doctrine of “Nemo dat quod non habet” The question is simply whether the respondents who had sold their title to the portion of land in dispute to the appellants which title was compulsorily acquired by the Lagos State Government from the appellants and which acquisition has been declared by a Court of law to be null and void legally speaking be entitled to a repossession of the title already sold to appellants from the third party; Lagos State Government without the authority and/or consent of the new owner of that title?

The lower Courts held that the respondents are entitled to the title. However, common sense says that you cannot eat your cake and still have it back. That is the simple answer to a very simple case as revealed by the record of appeal. Without making magic or abracadabra, can you eat your cake and still have it back? Fortunately, this is a Court of law which has absolutely nothing to do with magic or abracadabra neither does the Court allow itself to be used as an engine for the perpetration of fraud, in whatever guise. In the case of Ilona v.

Idakwo (2003) 11 NWLR (pt. 830) 53 at 89 and 91-92, this Court held, inter alia, as follows: “Where there is a subsisting right of occupancy, it is good against any other rights. The grant of another right of occupancy over the same piece of land will therefore be invalid… Where a party has fully divested himself of all interest in land, no right vests in him to deal with the same property by way of further alienation anymore. It is a matter of nemo dat quod non habet: i.e. he cannot give that which he no longer has.” Per ONNOGHEN, JSC.

The essential elements or factors that constitute a valid contract are quite clear and elementary; that there was: (1) an offer – clearly made; (2) an acceptance of the offer, precisely and unconditionally given; (3) consideration paid (in part or as a whole); (4) intention by the parties to create the legal relationship; and of course (5) legal capacity to enter into the contract, including the capacity to transfer title to property (where that is involved).

See the case of Incorporated Trustees of Roh Empire Mission Vs Opara (2017) LPELR – 42463 CA, where it was held: “A contract is a legally binding agreement between two or more persons, by which right are acquired by the party, in return for acts or forbearance, on the part of the other. It is a bilateral affairs, which requires consensus “ad idem” of the parties. See Odutola vs Papersack Nig Ltd (2006) 18 NWLR (pt 1012) 470; Orient Bank (Nig) Plc vs Bilante Int’l Ltd (1997) 8 NWLR (PT.515) 37, Ashaka vs Nwachukwu (2013) LPELR- 20272 (CA). See also Alfa System Com.

Ltd & Ors vs Keji Orisajimi & Ors (2016) LPELR – 40295 (CA), on the five essentials of a valid contract, namely, offer, acceptance, consideration, intention to create legal relationship and capacity to contract, and all the five ingredients must co-exist, before a valid contract can exist.Okubule vs Oyagbola (1990) 4 NWLR (pt.147) 723. Amana Suite and Hotel Ltd vs PDP (2007)6 NWLR (pt.1031) 453.” See also Abdullahi & Ors Vs El-Rufai & Ors(2021) LPELR – 55627 (SC), where it was held: “For a valid contract to emerge, there are five elements that must be present and recognizable.

These are offer, acceptance, consideration, intention to create legal relationship, capacity to create legal relationship and capacity to contract. Thus, before any contract or agreement can be said to come into existence in law, there must be an unmistaken and precise offer, followed by an unconditional acceptance of the terms mutually agreed upon by the parties thereto. That is to say the parties to the agreement must be in consensus ad idem as regards the terms and conditions freely and voluntarily agreed upon by them.

See BILANTE INTERNATIONAL LTD VS NIGERIA DEPOSIT INSURANCE CORPORATION (2011) 6-7 SC (PT IV) 113, OMEGA BANK PLC V. OBC LTD (2005) 8 NWLR (PT 928) 547, AMANA SUITES HOTEL LTD V. PDP (2007) 6 NWLR (PT. 1031) 453. Therefore, where an offer is made but is not accepted, there can be no agreement or contract arising therefrom. An offer is an expression of readiness to contract on the terms specified by the offeror (i.e the person making the offer) which when it is accepted by the offeree (i.e the person to whom the offer is made) will give rise to a valid and binding contract.

In other words, it is by acceptance that the offer is converted to a contract. See SPARKLING BREWERIES LTD & ORS V. UNION BANK OF NIGERIA LTD (2001) 10 SCM 163. A mere willingness to enter into a negotiation with a view to entering into a contract cannot be an offer but at best an invitation to treat. See OMEGA BANK PLC V. OBC LTD (SUPRA).” Per OSEJI, JSC. The above elements cannot be traced, completely, in the purported contract as held by the learned trial Court.

I think the learned trial Court made a lot of dangerous assumptions in its findings, when it claimed that Appellant had admitted the pleadings of the Respondent, paragraphs 1 to 15 of the statement of claim!

What the Appellant said in his paragraph 1 of the statement of defence, was: “(1) The defendant admits paragraph 1, 2, 3, 4, 5, 6, 7, 8, 9 and 15 of the statement of claim.” Thereafter, the Appellant took his time to controvert the paragraphs 10, 11, 12, 13 and 14 (and other paragraphs of the statement of claim, as seen in his pleading, paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 of the statement of defence. I therefore see merit in this appeal as I resolve the issues in favour of the Appellant, and allow the appeal.

I set aside the decision of the trial Court, delivered on 5/10/2018, and dismiss the Respondent’s claim, at the lower Court. Appellant is entitled to the cost of this appeal, assessed at N50,000.00, to be paid by Respondent. Note: Judgment in this appeal could not be delivered within 90 days as the Hon. Justice, who was first assigned the responsibility could not do so, before he was moved to another Judicial Division, and it had to be reassigned.

BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the leading judgment of my learned brother, ITA GEORGE MBABA, J. C. A. His views on the appeal reflect mine, accordingly, I adopt his judgment as mine. I also allow the appeal. I abide by all consequential orders contained in the leading judgment including that as to costs. ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, ITA GEORGE MBABA, JCA and I am in agreement entirely with the reasoning and conclusion reached therein.

I concur with the judgment and have nothing better to add. I agree that the appeal is meritorious and I too allow the appeal. I abide by all other consequential orders as contained in the lead judgment.

Judgment

ADAMU JAURO, J.S.C. (Delivering the Leading Judgment): This appeal is against the judgment of the Court of Appeal, Abuja Judicial Division setting aside the ruling of the High Court of the Federal Capital Territory which dismissed the 1st and 2nd Respondents’ suit for being statute barred under Section 2 (a) of the Public Officers (Protection) Act.

BRIEF STATEMENT OF FACTS The 1st and 2nd Respondents as Plaintiffs took out a Writ of Summons and Statement of Claim against the Appellants as well as the 3rd and 4th Respondents seeking the following reliefs: 1. “A DECLARATION that the 2nd Plaintiff is the beneficial owner of the property located at Plot 6 Cadastral Zone B05, Utako, Abuja which is covered by a previous Certificate of Occupancy File No: FCT/ABV/MISC: 7300 now numbered as File NO: MISC 55124. 2.

AN ORDER of this Honourable Court that the purported revocation without prior notice or fair hearing by the 1st & 2nd Defendants of the Plaintiffs’ right of occupancy in Plot No. 6 Cadastral Zone B05, Utako Abuja is unconstitutional, invalid, null, void and of no effect.

3. AN ORDER of this Honourable Court that the purported reallocation by the 1st and 2nd Defendant of the Plaintiffs’ fight of occupancy in Plot No. 6 Cadastral Zone B05, Utako – Abuja to the 3rd and/or the 4th Defendants and indeed any third party is invalid, null, void and of no effect. 4. AN ORDER of this Honourable Court that the 1st and 2nd Defendants should reinstate the property located at Plot No. 6 Cadastral Zone BO 5, Utako-Abuja to the 1st and/or the 2nd Plaintiff. 5.

AN ORDER of this Honourable Court restraining all the Defendants, their agents, servants or privies from interfering with the right of the 1st and/or 2nd Plaintiffs to develop Plot No. 6 within Jabi District, Abuja. 6. AN ORDER of this Honourable Court awarding the sum of N10,000,000.00 (Ten Million Naira) only against the 3rd and 4th Defendants to the Plaintiffs for trespass to the property of the Plaintiffs. 7. AND for such other orders or further orders as this Honourable Court may deem fit.

The averments of the 1st and 2nd Respondents as Plaintiffs in their Statement of Claim are to the effect that the 1st Respondent was issued a C of O in respect of the land in dispute on 7/6/1998. That the 1st Respondent sold the said land to the 2nd Respondent in 2004, which sale was evidenced by a Deed of Assignment and an Irrevocable Power of Attorney. According to the 1st and 2nd Respondents, the 4th Respondent was made aware of the sale by submitting relevant documents to it.

It was further averred that by a letter dated 5/10/2005, the 3rd Respondent revoked the 1st Respondent’s C of O without prior notice or fair hearing. Miffed by the said revocation, the 1st and 2nd Respondents filed the suit culminating into the instant appeal via a Writ of Summons on 18/6/2007. ​ Upon service of the originating processes on the Defendants, the Appellants as 3rd and 4th Defendants on one hand and the 3rd and 4th Respondents as 1st and 2nd Defendants on the other hand, filed Memorandum of Conditional Appearances as well as notices of preliminary objections.

Their objections were basically to the effect that the action was statute barred by virtue of Section 2(a) of the Public Officers (Protection) Act. According to them, the essence of the action was a challenge to the powers of the 3rd and 4th Respondents in revoking the 1st Respondent’s Certificate of Occupancy. The 1st and 2nd Respondents filed a joint reply to the notices of preliminary objection wherein it was contended that the objections were incompetent for being demurrers and that the Public Officers (Protection) Act was inapplicable to an action predicated on recovery of land.

In its ruling on the preliminary objections, the trial Court held that the Defendants’ objections challenged the jurisdiction of the Court and could therefore not be considered demurrer and that the action was caught by Section 2(a) of the Public Officers (Protection) Act. The trial Court declined jurisdiction and consequently dismissed the suit.

The 1st and 2nd Respondents were aggrieved causing them to lodge an appeal before the Court below. The Court below in its judgment, upheld the ruling of the trial Court on the issue of demurrer, but set aside the part of the ruling wherein it was held that the action was statute barred by virtue of Section 2(a) of the Public Officers (Protection) Act. The Court below held further that the applicable law to the suit was Section 15 of the Limitation Act Cap 522 Laws of the Federation of Nigeria which provides for a limitation period of 12 years.

Disgruntled by the turn of events, the Appellants instituted this appeal via a Notice of Appeal filed on 23/2/2010.

OLUWOLE ALADEDOYE ESQ., settled the Appellants’ brief of argument filed on 28/5/2010. The following issue was identified by the Appellants’ counsel as arising for determination in this appeal: “Whether the learned Justices of the Court of Appeal were right not to have invoked the provisions of the Public Officers (Protection) Act having regard to the facts and circumstances of this case? (grounds 1 – 4)”

S.O. IMHANOBE ESQ., settled the 1st & 2nd Respondents’ brief of argument filed on 21/07/2020. Learned counsel formulated the following issue on behalf of the 1st and 2nd Respondents: “Whether the learned Justices of the lower Court were in error when they held that the applicable law on limitation of time in an action for recovery of land within the Federal Capital Territory Abuja is Section 15 of the Limitation Act, Cap 522, Laws of the Federation of Nigeria?”

The 3rd and 4th Respondents’ brief was filed on 18/3/2022 and same was settled by CHIEF KINSLEY CHUKU who for the determination of the instant appeal adopted the Appellants’ sole issue.

Before going into submissions and arguments of counsel as encapsulated in their respective briefs of argument, it is important that I comment on the propriety of the 3rd and 4th Respondents’ brief of argument. As Respondents in this appeal, it presupposes that the 3rd and Respondents stick to their roles by defending the decision being appealed against. Contrary to the principles guiding appellate practice, the 3rd and 4th Respondents’ counsel argued against the judgment of the Court below.

The law is trite that the duty of a Respondent in an appellate exercise is to defend the decision appealed against. See DAHIRU & ANOR V. APC & ORS (2016) LPELR – 42089 (SC), OBI V. INEC & ORS (2007) LPELR – 2166 (SC), BUHARI & ORS V. OBASANJO & ORS (2003) LPELR – 24859 (SC), EZEANAH V. ATTA (2004) LPELR – 1198 (SC), ZAKIRAI V. MUHAMMAD & ORS (2017) LPELR – 42349(SC).

In the circumstance therefore, the 3rd and 4th Respondents’ brief is not worthy of consideration. If they are disgruntled with the decision of the Court below, they ought to have filed a separate notice of appeal or a notice of cross-appeal. On the premise of the above, the said brief would not be countenanced in the determination of this appeal. Consequently, the 3rd and 4th Respondents’ brief of argument is hereby struck out.

This appeal will therefore be determined within the confines of the issues distilled by the Appellants and the 1st and 2nd Respondents.

ARGUMENTS AND SUBMISSIONS OF COUNSEL Arguing the lone issue, learned counsel for the Appellants submitted that the 1st and 2nd Respondent pleaded the capacity of the 3rd and 4th Respondents in paragraphs 3 and 4 of the Statement of Claim before the trial Court.

He submitted that paragraph 11 of the Statement of Claim formed the basis of the 1st and 2nd Respondent’s grievances and that same showed that they were displeased with the administrative or ministerial actions of the 3rd and 4th Respondents who are public officers and by virtue of which Section 2(a) of the Public Officers (Protection) Act is applicable.

Counsel cited the case of IBRAHIM V. JSC (1998) 14 NWLR (PT. 584) 1 and submitted that where a statute provides for the institution of an action within a prescribed period, proceedings shall not be instituted after the time prescribed by such statute. It was further submitted that it is clear from the Statement of Claim that the case of the 1st and 2nd Respondents is not for recovery of land simpliciter.

He also submitted that since Section 2(a) of the Public Officers (Protection) Act has fixed three months for an action such as this which seeks to challenge the administrative action of a public officer, the Limitation Act relied upon by the lower Court is inapplicable to this case.

It was the further submission of counsel that the 1st and 2nd Respondents did not aver that the 3rd and 4th Respondents acted outside the scope of their duties. That father the Statement of Claim reveals that the act of the 3rd and 4th Respondents which forms the basis of the 1st and 2nd Respondents’ complaints was carried out in the course of execution of intended execution of a public duty.

That from the contents of the Notice of Revocation frontloaded by the 1st and 2nd Respondents which is at page 23 of the record, the 3rd and 4th Respondents were exercising their power under Section 28 (5) (a) & (b) of the Land Use Act, 1978.

In the final analysis, counsel urged this Court to allow the appeal and hold that the suit is statute barred having regard to Section 2(a) of the Public Officers (Protection) Act.

By way of reply, learned counsel for the 1st and 2nd Respondents submitted that while the Appellants rightly argued that the basis of the 1st and 2nd Respondents’ grievances is their displeasure over the revocation of the 1st Respondent’s Right of Occupancy in respect of the disputed property, however they fell short of stating that the relief sought by the 1st and 2nd Respondents is the recovery of the land in dispute.

It was further submitted that the Appellants misconstrued the purport of paragraph 11 of the Statement of Claim and placed undue premium on the words “Purporting to exercise powers under Section 28(5)(a) and (b)”. That upon a proper construction of the said paragraph, the real import thereof is that the 1st and 2nd Respondents’ sought to recover the land unlawfully taken away from them.

He urged this Court to affirm the finding of the lower Court that the suit is a claim for recovery of land. ​ In reaction to the Appellants’ argument that the 1st and 2nd Respondents did not aver that the 3rd and 4th Respondents acted outside their duty, it was submitted that the 1st and 2nd Respondents alleged in paragraph 11 of their Statement of Claim that the 3rd and 4th Respondents breached their constitutional fight to fair hearing.

That the said breach cannot be circumvented by reliance on exercise of the 3rd and 4th Respondents’ statutory powers under Section 28(5)(a) & (b) of the Land Use Act and the limitation provision in Section 2(a) of the Public Officers (Protection) Act. Counsel cited the case of OSUN STATE GOVERNMENT V. DALAMI (2007) 9 NWLR (PT. 1038) 66 and urged this Court to dismiss the appeal and affirm the decision of the lower Court.

RESOLUTION The law is settled that a cause of action arises as soon as the combination of facts giving the right to complain happens. In other words, a cause of action is said to have accrued when the entire factual situations which give a person the right to a judicial relief are present or have happened. That is, when all that is necessary to make the matter in litigation an enforceable right or an actionable wrong have occurred. See ZUBAIR V. KOLAWOLE (2019) LPELR-46928 (SC) AT 19(D-F), MAIGARI V. MALLE & ORS. (2019) LPELR-49374(SC) AT 15-22 (F-B).

It is the accrual of the cause of action that confers on the appellant the fight to institute an action to enforce the cause of action or right to a judicial relief. See HASSAN V. ALIYU & ORS. (2010) LPELR-1357(SC) AT 24- 25 (A-E). In order to determine the cause of action, when it accrued and when the action is filed, the Court will look at the claim of the plaintiff and the facts pleaded in the statement of claim.

The Appellants’ claim has been stated earlier in this judgment. The facts in support of claim are pleaded in paragraphs 7 – 15 of the Statement of Claim as follows:

“7. On 07/06/1998, the 1st Plaintiff was issued the Certificate of Occupancy No. FCT/ABU/MISC: 7300 in respect of Plot No.6 Cadastral Zone B05, Utako – Abuja measuring 4246.92 square meters for a term of 99 years commencing 12/01/1994 (the ‘Property’). 8. On 25/8/2004, the 1st plaintiff sold the property to the 2nd plaintiff. The sale is evidenced a deed of assignment and an irrevocable power of attorney dated 25/8/2004. The plaintiffs hereby plead the said Certificate of Occupancy and Power of Attorney. 9.

The plaintiff submitted the power of attorney to the 2nd defendant and paid to the 2nd defendant the sum of N51,000 (Fifty-one thousand Naira) only for registration of the power of attorney. The plaintiffs hereby plead the receipt of payment number 000722307 dated 29/04/2004. 10. On the 20/06/2005, the 2nd plaintiff through their agent Lawal I. Isa, submitted the Certificate of Occupancy No. FCT/ABU/MISC:7300 and the Power of Attorney in respect of Plot No. 6 Cadastral Zone B05, Utako – Abuja to Abuja Geographic Information Systems (AGIS).

The plaintiffs hereby plead the Deposit Slip No 0021364 evidencing payment of N110,000 (One hundred and ten thousand Naira) only to the 1st and 2nd defendant and the Acknowledgement issued by the 1st and 2nd defendant dated 20/06/2005. 11. By a letter dated 05/10/2005, the 1st defendant without prior notice or fair hearing to the plaintiffs, purporting to exercise powers under Section 28(5) (a) and (b) served on the 1st plaintiff through the 2nd plaintiff a notice of revocation of the Certificate of Occupancy in respect of the property.

The notice of revocation though dated 05/10/2005 was received by the 2nd plaintiff via DHL courier on 18/5/2006. The plaintiffs hereby plead and shall at the trial rely on the letter of revocation dated 05/10/2005. 12. On 22/05/2006, the 2nd plaintiff wrote a letter of appeal to the 1st defendant complaining about the purported revocation and requesting that the property should be reinstated to them. The plaintiffs hereby plead and shall at the trial rely on the letter of appeal. 13. The 1st and 2nd defendant have failed and/or refused to reinstate the property to the plaintiffs. 14.

Sometime in December 2006, the plaintiffs discovered that the 3rd and 4th defendant, had trespassed the property, destroying the 2nd plaintiff’s fence and constructing their own fence instead. 15. The 2nd defendant reported the matter to the office of the Commissioner of Police, Federal Capital Territory Command Abuja. The plaintiffs hereby plead and shall at the trial rely on the letter of complaint written to the Commissioner of Police dated 28/12/2006.”

It is clear from the above facts that the cause of action in the instant case is the revocation of the 1st Respondent’s certificate of occupancy in Plot No. 6 Cadastral Zone B05, Utako – Abuja by the 3rd Respondent. According to the 1st and 2nd Respondents, the said revocation which was said to have been done pursuant to the powers of the 3rd Respondent under Section 28(5) (a) and (b) of the Land Use Act, was done without prior notice or fair hearing given to them.

The aim of the Public Officer (Protection) Act is to protect public officers who have acted pursuant to their duties from being slapped or harassed with stale claim and suits. See the cases of IBRAHIM V JSC (1998) 14 NWLR, PART 584, and FAJIMOLU V UNILORIN (2007) 2 NWLR PART 1017, 74.

By the provision of Section 2 of the Act, any action, prosecution or any proceeding commenced against any public officer shall be brought within three months of the act, neglect or default complained of or in the case of a continuing damage or injury within three months next after the ceasing thereof. See NIIA V AYANFALU (2007) 2 NWLR PART 1018, 26, EKEOGU V ALIRI (1991) 3 NWLR PART 179, 258.

The Court below in the resolution of the issue under controversy held at pages 224 – 245 of the record that: “It is settled law that the Public Officers Act would not apply in cases of this nature because in Federal Government of Nigeria vs. Zebra Energy Limited (supra) the Supreme Court held among others that: “…the Public Officers Protection Act is not intended by the legislature to apply to contracts. The law does not apply in cases of recovery of land, breaches of contact or claims for work and labour done.” Also in Salako vs.

L.E.D.B. & Another (supra) it was held that Public Officers Protection Act does not apply to cases of recovery of land… It is my view that the authorities relied upon by learned Counsel for the 1st, 2nd, 3rd and 4th Respondents on this matter are not relevant. Therefore, the provisions of Section 2(a) of the Public Officers Protection Act relied upon by the learned counsel for the Respondent is not helpful to them.

In view of the foregoing, I agree with the submissions of learned counsel for the Appellants that the applicable law on limitation of time in an action for recovery of land within the Federal Capital Territory, Abuja is Section 15 of the Limitation Act, Cap, 522 Laws of the Federation of Nigeria.” The finding of the Court below is unassailable because this Court has held in a legion of cases that the provision of Section 2 (a) of the Public Officers (Protection) Act is not absolute and without its limitations.

Such limitations are cases predicated on recovery of land, breach of contract or claims for work and labour done. This Court in the case of CIL RISK & ASSET MANAGEMENT LTD V. EKITI STATE GOVT. & ORS (2020) LPELR-49565 (SC) held a similar view on the fact that the provision of Section 2 (a) of the Public Officers (Protection) Act does not apply to actions predicated on recovery of land or breach of contract. The facts of the case culminating into the instant appeal are on all fours with the decision of this Court cited above. In CIL RISK & ASSET MANAGEMENT LTD V.

EKITI STATE GOVT. & ORS (supra), the Appellant instituted an action at the High Court of Ekiti State, Ado Ekiti challenging the decision of the Ekiti State Government revoking its fight of occupancy and subsequently allocating the said land to a third party. Both the High Court of Ekiti State sitting in Ado Ekiti and the Court of Appeal, Ado Ekiti Division declined jurisdiction holding that the suit was statute barred under Section 2 (a) of the Public Officers (Protection) Act.

In allowing the appeal, my learned brother, Ejembi Eko JSC delivering the lead judgment held that: “The second limb of the Appellant’s submission on the scope of Section 2(a) of the Public Officers Protection Act is that the provision does not apply to cases founded on contract, or breach of contract. The Appellant is correct. Numerous judicial dicta of this Court support this submission. OSUN STATE GOVERNMENT V. DALAMI (NIG) LTD (2007) 9 NWLR (pt. 1038) 66 is a case founded on breach of lease agreement.

The respondent sued the Osun State Government seeking a declaration that the latter’s purported termination of the Management Lease Agreement was wrongful. The respondent sought a further order nullifying of setting aside the purported termination, and an order for specific performance. Osun State Government pleaded limitation afforded by the Public Officers Protection Act. This Court unanimously rejected the plea and held that Section 2 of the Public Officers Protection Act does not apply in cases for recovery of land or breach of contract.

It cited, with approval, previous decisions on the point in SALAKO V. L.E.D.B (1953) 20 NLR 159, NPA V. CONSTRUZIONI GENRALI F.C.S (1974) 9 NSCC 622; (1969) 1 ALL NLR (pt. 2) 463, BANKOLE V. NBL (1969) NCLR 385 at 390. It is very clear from the ipixit dexit of the Respondents, at pages 150 – 160 and 191 – 192 of the Record, in their respective preliminary objections, that they justified the revocation of the Appellant’s C of O on the fact that the Appellant was in breach of the contract terms, conditions and obligations contained in the C of O.

They accordingly invoked the provision of Section 2(a) of the Public Officers Protection Act, being a special defence, as having extinguished the Appellant’s right to enforce the cause of action founded on the said breach of contract.

It is apparent also from paragraphs 2.3; 4.43; 4.58; 4.91; 4.100 – 106, and 4.109 of the 1st – 3rd Respondents brief that they had contrary to established judicial precedents, invoked Section 2(a) Public Officers Protection Act as a statutory bar to Appellant’s cause of action premised on breach of the contractual terms, condition or obligations in the Certificate of Occupancy.

In my firm view, my Lords, the two Courts below were in error to have acted on Section 2(a) Public Officers Protection Act to strike out the suit of the Appellant for being statute barred. The scope of the Act does not extend to actions founded on recovery of land or breach of contract. The two Courts below had definitely misconceived the scope and spirit of the Act.” Per EKO, J.S.C (Pp. 6-9 paras.

E) I am in agreement with counsel for the 1st and 2nd Respondents that the action is predicated recovery of land simpliciter and not connected with the administrative or ministerial actions of the 3rd and 4th Respondents who are public officers as contended by the Appellants. See OSUN STATE GOVERNMENT V. DALAMI (supra); SALAKO V. L.E.D.B (supra).

On the strength of the decisions of this Court on the inapplicability of the Public Officers (Protection) Act to cases predicated on recovery of land, the sole issue distilled for the determination of the appeal is hereby resolved in favour of the 1st and 2nd Respondents and against the Appellants. ​ I find no iota of merit in this appeal. Same is hereby dismissed.

Consequently, the decision of the Court of Appeal, Abuja Division, delivered on 15th December, 2009 wherein the ruling of the High Court of the Federal Capital Territory, Abuja dismissing the 1st and 2nd Respondents’ suit for being statute barred is hereby affirmed. Costs of N2,000,000.00 is hereby awarded in favour of the 1st and 2nd Respondents and against the Appellants.

OLUKAYODE ARIWOOLA, J.S.C.: I had the opportunity of reading in draft the lead judgment of my learned brother, Adamu Jauro, JSC just delivered, I agree entirely with the reasoning and conclusion of the lead judgment that the appeal is unmeritorious and deserves to be dismissed. Accordingly, it is dismissed by me. Appeal dismissed.

I abide by the consequential order in the lead judgment including order on cost.

UWANI MUSA ABBA AJI, J.S.C.: The 1st Respondent as plaintiff together with the 2nd Respondent was issued a C of O in respect of the land in dispute on 7/6/1998 and the 1st Respondent sold same to the 2nd Respondent in 2004 vide a deed of assignment and irrevocable power of attorney, which sale was made known to the 4th Respondent when the relevant documents were submitted to it. However, the 3rd Respondent by a letter dated 5/10/2005 revoked the 1st Respondent’s C of O without prior notice or fair hearing.

Consequently, the 1st and 2nd Respondents sued the Appellants and the 3rd and 4th Respondents. The Appellants and the 3rd and 4th Respondents preliminarily objected to the competence of the suit to the effect that the action was statute barred by virtue of Section 2 (a) of the Public Officers Protection Act. The trial Court declined jurisdiction and dismissed the suit.

On appeal by the 1st and 2nd Respondents, the lower Court set aside the ruling that the action was statute barred, hence this appeal by the Appellants, who seek for determination: “Whether the learned Justices of the Court of Appeal were right not to have invoked the provisions of the Public Officers Protection Act having regard to the facts and circumstances of this case?”

In the instant case, the grouse of the 1st and 2nd Respondents is that the 3rd Respondent by a letter dated 5/10/2005 revoked the 1st Respondent’s C of O without prior notice or fair hearing.

What is involved in the present suit is revocation of land or the recovery thereof. Does Section 2 (a) of the Public Officers Protection Act apply to every genre and action of the public officer? Does it apply in the present suit to make it statute barred? The Public Officer Protection Act was not intended by the legislature to apply to contracts. The law does not apply in cases of recovery of land, breaches of contract or for claims for work and labour done. See Per ABBA AJI, JSC, in RAHAMANIYA UNITED (NIG) LTD V. MINISTER OF FCT & ORS (2021) LPELR-55633(SC) (PP. 10-11 PARAS. B), ROE LTD V.

UNN (2018) LPELR-43855(SC) (PP. 21-22, PARAS. D-A), CIL RISK & ASSET MANAGEMENT LTD V. EKITI STATE GOVT. & ORS (2020) LPELR- 49565(SC) (PP. 6-9, PARAS. E-C).

I therefore completely agree with the sound reason and conclusion of my learned brother, Adamu Jauro, JSC that this appeal is devoid of any merit.

The appeal therefore fails and is hereby dismissed. I endorse the costs of N200,000 awarded in favour of the 1st and 2nd Respondents by my learned brother.

MOHAMMED LAWAL GARBA, J.S.C.: My learned brother, Hon. Justice Adamu Jauro, JSC has adequately consider and dealt with the sole issue submitted to the Court for decision by the Appellants in the lead judgment which I had the privilege of a preview.

The law is now beyond argument, since it has been firmly settled in many decisions of this Court that the provisions of Section 2 (a) of the Public Officers Protection Act (POPA) do not apply, for the purpose of limitation of actions, to actions predicated on contracts or for recovery of land. See N.P.A. v. Lotus Plastics (2005) 24 NSCQR, 566, FGN v. Zebra Energy Ltd (2002) 18 NWLR (pt. 798) 162 at 197, CBN v. Adedeji (2004) 13 NWLR (pt. 890) 226, Gyang v. N.S.C. (2002) 15 NWLR (pt. 791), Adigun v.

Ayinde, (1993) 8 NWLR (pt. 313) 516, in addition to the cases cited and referred to in the lead judgment on the principle. Since as demonstrated from the facts in the pleadings of the 1st and 2nd Respondents, the primary claims and reliefs sought in the case before the trial High Court, were based on and for recovery of land taken away by the 3rd and 4th Respondents purportedly in the exercise of their administrative powers, the matter was one to which the provisions of Section 2 (a) of POPA, do not, clearly, apply or applicable.

In the result, the appeal is apparently devoid of merit and deserves to be dismissed.

I dismiss the appeal in terms of the lead judgment.

TIJJANI ABUBAKAR, J.S.C.: My Lord and learned brother, ADAMU JAURO JSC granted me the privilege of reading in draft the comprehensive leading judgment prepared and rendered in this appeal. I endorse the reasoning and conclusion and adopt the Judgment as mine, I have nothing extra to add.

I join my learned brother in holding that appellant’s appeal lacks merit and therefore deserves to be and is hereby dismissed. The judgment of the lower Court delivered on the 15th day of December, 2009 is affirmed. I also abide by all consequential orders including the order on costs.

Judgment

SAMUEL CHUKWUDUMEBI OSEJI, J.S.C. (Delivering the Leading Judgment): The Appellants herein were the plaintiffs in the trial Court while the Respondents were the defendants/counter-claimants. In paragraph 30 of their further, further amended statement of claim, the Appellants as plaintiffs at the trial Court claimed jointly and severally against the Respondents as follows:- a. Declaration that the policy of Benue State Government of disposing its quarters to civil/public servants, on owner occupier basis, which was later on extended to cover elected officers does not exclude the plaintiffs. b.

Declaration that the plaintiffs who are actual occupiers of their respective allocated quarter, who have indicated interest in buying the houses, should be given the first option to buy houses but any other interested person who is not in actual occupation thereof. c. Declaration that the plaintiffs who are in actual occupation of their respective houses, who have applied and paid the application fees to buy the houses ought to have been formally informed that they (sic) applications were not approved and reasons thereof before putting out the houses to other intending buyers. d.

Declaration that the purported revocation of each of the plaintiffs, tenancy/notice to quit same and subsequent allocation to others who are not in occupation is inequitable, unjust, unfair and discriminatory against the plaintiffs, unconstitutional and same should be set aside. e. Declaration that each of the plaintiffs having been legally allocated the various government quarters, as civil servants in Benue State, which they have indicated interest in purchasing is more qualified as an occupier to be given the first option of the same on owner occupier basis. f.

Declaration that the purported revocation of each of the plaintiffs, tenancy and quit notice on same as well as the subsequent allocation of the respective quarters being occupied by each of the plaintiffs to other person is contrary to the government’s policy to assign these houses on “owner occupier” basis is null and void and of no effect whatsoever. g. Order of the Court setting aside the purported allocation of the houses occupied by the plaintiffs. h.

Order of perpetual injunction restraining the defendants, by themselves, agents, servants, by and through whomsoever, from doing anything, taking any action prejudicial to the interest of the plaintiffs, trespassing on the houses and or in any way and manner tampering with the peaceful occupation by the plaintiffs of the quarters they now occupy. i.

Order of specific performance against the defendants to complete the contract of assignment the houses which the plaintiffs now occupy by issuing to the plaintiffs, receipts of purchase covering the houses and pay back balance due to the plaintiffs from the entitlement of each of the plaintiffs and where the entitlements have been paid, allow the plaintiffs effect the payment of the purchase prices of the houses.

The facts as gleaned from the record of appeal is that the Appellants herein were allocated houses owned by the Benue State Government which they were occupying as tenants and paying rent. After the Appellants retired from service but before vacating the houses, the Benue State Government evolved a policy with effect from 11th September, 2006 to sell the houses to Civil Servants in the service of the Benue State Government. The guidelines for the allocation of the houses were contained in the Benue State Executive Council (EXCO) Conclusions.

Going by the guidelines, the Appellants still in occupation of the houses were not entitled and eligible to be allocated the houses on owner-occupier basis because some of them were in the service of the Federal Government and Local Governments while the policy covered only persons in the service of Benue State Government. Furthermore, they had retired at the time the policy took effect and were also in arrears of rent/economic rent contrary to the Guidelines.

The government made invitation to her civil servants to apply for the houses to be allocated to them on owner-occupier basis wherein the 23 Appellants also applied for same at which Government considered their applications and found them in default for noncompliance with the Guidelines and rejected same prompting the government to allocate the houses to qualified persons. Consequent upon the Appellants refusal to deliver up possession of the houses for the bona fide allottees to take over, the Respondents therefore decided to issue them quit notices to vacate the houses.

The Appellants herein instituted an action against the Respondents at the High Court of Justice, Benue State sitting at Makurdi. At the trial, both parties tendered exhibits and filed their respective addresses in support of their case.

The trial Court in its judgment delivered on the 23rd September, 2010 dismissed the Appellants claim and granted the Respondents counter-claim for possession and rent arrears/mesne profits.

Dissatisfied with the judgment of the trial Court the Appellants filed a notice of appeal containing two grounds of appeal to the Court of Appeal, Makurdi Division. The lower Court heard the appeal and in its judgment delivered on 25/3/2015 dismissed the appeal and affirmed the decision of the trial Court.

The Appellants were dissatisfied with the judgment of the Court of Appeal and filed an appeal to this Court.

The Appellants’ brief of argument was filed on the 2/12/2018 while the Respondents brief of argument was filed on the 18/5/2018.

The parties adopted and relied on their respective brief of argument at the hearing of the appeal on 13/12/2020.

From the two (2) grounds of appeal, the following two (2) issues are distilled for determination:-

1. Whether the learned Justices of the Court of Appeal were right in holding that the appellants who were in actual occupation of the houses in question were not entitled to benefit from the Benue State Owner Occupier Housing Scheme because they were retired civil servants who were owing rents in the circumstances of this case. This issue is formulated from ground one of the grounds appeal. 2. Whether the learned Justices of the Court of Appeal were right when they held that the rights of the appellants were not violated to warrant a remedy given the circumstances of this case.

This issue is derived from ground two of the grounds of appeal.

The Respondent herein adopted the issues for determination as raised in the Appellant’s amended brief of argument.

APPELLANTS SUBMISSION Arguing on issue 1 and 2, learned counsel for the Appellants submitted that the Respondents made the appellants to believe that as civil servants who were allocated the various quarters for occupation and which they were in actual occupation at the time the scheme was executed were meant to benefit from the scheme. He added that the contention by the Respondents that the appellants being retired civil/public servants were not contemplated to benefit from the scheme is most bizarre, not proper, misleading and not sustainable.

It was further submitted that appellants are in the circumstances of this case qualified to benefit from the scheme because they fall within the class of persons for which the scheme was designed in the first place and the appellants also satisfied all the conditions for the purpose of taking benefits of the scheme else the Respondent wouldn’t have allowed the Appellants purchase the form and even complete the filling of the forms.

It was further submitted that where a party by his conduct, or words intentionally caused or permitted another person to believe a thing to be true and to act upon such belief shall not be allowed to deny the truth of that thing. He placed reliance on AWONUSI V. AWONUSI (2007) 1 ALL FWLR (PT. 391) 1642 at 1659 paras F- H.

RESPONDENTS SUBMISSION Dwelling on their issues 1 and 2, learned counsel for the Respondents submitted that Paragraph 48 (ii) (b), (c), (e) and (f) of the policy guidelines refer to the beneficiaries or persons entitled to purchase the houses under the policy as State Civil/Public Servants. He added that Mozley & Whitley’s Law Dictionary 9th Edition, 1977 by John B.

Saunders, page 61 defines Civil Service to include all servants of the crown (the State) other than holders of political or Judicial offices, who are employed in a civil capacity and whose remuneration is paid wholly and directly out of monies voted by parliament which means that persons employed to serve in such capacity are therefore Civil Servants.

It was further submitted that in the Appellants sworn statements and evidence under cross-examination, the Appellants conceded that they were in rent arrears and had retired before 11th September, 2006 when the housing policy took effect.

He added that the appellants were no longer in the Civil Service as they were/are not entitled to be paid salaries and other allowances payable to persons who are still in service. ​ It was argued that the Appellants were in occupation of the houses at the time the policy took effect but the issue was that all the Appellants had retired and so even though some of them had been allocated the houses as tenants and were in occupation, they were not eligible to be allowed the option to buy same including the benefit under paragraph 4 B. (ii) (D) of exhibit RI which also does not enure the Appellants.

While relying on the case of INCAR NIG PLC & 1 Or vs. BOLEX ENTERPRISES NIG LTD (2001) 6 NSCQR (Pt. II) 692 at 721, it was submitted that there were no valid contracts between the Respondents and the Appellants thereby estopping the Appellants from suing the Respondents for the breach of non- existent contracts.

It was further submitted that for there to be a contract, there must be an offer from one party capable of acceptance by the other and when consideration is provided on the offer and same is accepted, a contract comes into existence. On this, he citedEDILCO NIG. LTD vs. UBA PLC (2000) FWLR (Pt. 21) 792 at 834.

It was therefore urged on this Court not to disturb the decision of the trial Court and the Court below but dismiss the appeal on the grounds that it is frivolous, vexatious and the reliefs sought in the Appellants brief are not stated in the notice of appeal and so not grantable.

RESOLUTION OF ISSUES As earlier stated, the Appellants formulated two issues for determination in their brief of argument and the Respondents also adopted the same issues in their own brief of argument. I am minded to rely on the aforestated issues to determine this appeal.

I must however, state that while I commend the intellectual input of learned counsel for the parties in their respective briefs of argument, all in a bid to sway the mind of this Court in their favour, I also observed that the issues in contention are quite narrow no matter the perspective from which they are viewed.

Some salient facts need to be reiterated and which facts are, from the records, not in dispute but reflect the correct state of affairs in the transaction between the parties. These facts are, that the Appellants (while variously in the service of the Benue State Government, Local Governments of Benue State and Federal Government of Nigeria) were allocated houses belonging to the Benue State government and which houses they each occupied as rent paying tenants.

The Appellants subsequently at various dates retired from service while still occupying the houses and before they could vacate same, the Benue State Government introduced a policy with effect from the 11th day of September, 2006, wherein such houses are to be sold to Civil Servants still in the service of Benue State Government. The guideline for the allocation of the houses to deserving and qualified persons is contained in the Benue State Executive Council Conclusion (Exco Conclusions) which was tendered in evidence in the trial Court and admitted as Exhibit R1.

Paragraph 4B (iii) (b) (c) (g) and (i) of the said guidelines (Exhibit RI) specified in very clear and unequivocal terms the categories of persons qualified to apply for the sale of the houses to them.

The said paragraphs are herein below set out:- 4B(iii) “Guidelines for the sale of government quarters under conditions highlighted below: – (b) That all State Public/Civil Servants who are currently occupying government residential quarters, and had evidence of genuine allocation papers would be allowed the option to buy such quarters as a matter of priority; (c) Nonetheless, State public/civil services found to be in arrears of rent payments, must as a precondition off-set such ascertained outstanding arrears before they will be eligible for purchase of the houses they occupy; (g) That houses presently occupied by Federal Government officers serving in the State as well as Local Government staffer shall be re-allocated to deserving State public/civil servants who are the targeted prime beneficiaries. (i) That such officers (especially from the Federal and Local Government services) occupying State Government Quarters, but nonetheless not eligible for participation in the scheme would be allowed a period of grace of (3) three months to find alternative accommodation and thereafter surrender such quarters.”

What I can glean from the above set out guidelines and conditions for allocation of the affected Benue State Government quarters and which view represents every rational and objective analysis, is that the primary and sole beneficiaries of the sale are public/civil servants still in the service of the Benue State Government.

Paragraph 4(iii)(b) made it very clear that only State public/civil servants currently occupying government residential quarters are entitled to be considered for allocation. That is not all. They must also show evidence of genuine allocation paper to ascertain the authenticity of their occupation in those quarters.

Paragraph 4(B)(iii) (c) further insists that such State public/civil servants who are in arrears of rents in the quarters they occupy must clear their outstanding rents as a pre-condition for their eligibility for purchase of the houses they occupy.

Federal and Local Government staffers presently occupying the quarters slated for such sales were given three months to vacate and surrender their quarters, which will be re-allocated to deserving Benue State Public/Civil servants who are the targeted beneficiaries.

Good enough, the Appellants are not challenging the genuineness or existence of Exhibit R1. Their first complaint is that having been in occupation of the affected quarters while still serving in the government of Benue State as public/civil servants and having continued with occupation therein as rent paying tenants after their retirement from service, they are entitled to be allowed the option to purchase those houses without discrimination as to whether serving or retired.

In other words, that there is no difference between a serving civil servant and one that is retired from civil service and which distinction was nowhere drawn in the guideline (Exhibit RI).

The learned trial Judge adequately addressed the issue in the judgment at pages 712 to 713 of the record wherein he held as follows:- “Now, the Oxford Advanced Learner’s Dictionary, 7th Edition at page 255 defines civil servant’ to mean “a person who works in the civil service” and at page 1249 it defines “retired” as “having retired from work” and the same page defines “retiree” as “a person who has stopped working …”The Black’s Law Dictionary 7th Edition does not define civil servant but it defines “RETIREMENT” at page 1317 to mean “voluntary termination of one’s own employment or career especially upon reaching a certain age.” If civil servant means a person who “works” then a person who is retiree or who has “stopped working” cannot be a civil servant.

The reason is that, ‘works’ is a noun. It connotes a continuing act and does not contemplate an act that took place in the past. I hold therefore that “civil servant” does not mean the same thing as “retired civil servant.” That there is a difference between a serving civil servant and a retired civil servant is established by the evidence of PWI. Hear him under cross-examination: “Where his gratuity is not fully paid, the retired civil servant has an obligation to continue paying economic rent. The rent he pays is not the same with the rent he paid while he was in service.

The economic rent he pays is lower than the amount he paid as rent while in service”. That invariably means, “civil/public servant” as used in paragraph 4 B (iii) (b) of Exhibit R1 does not include the plaintiffs as the category of persons entitled to benefit from the owner occupier scheme. It does not matter that they were not specifically signed out as the Federal and Local Government staff were to be excluded from the scheme.

Exhibit R2 which is not disputed shows that while the 1st plaintiff retired in October, 2004, the 2nd, 3rd, 11th 16th, and 18th plaintiffs retired in 2005, 4th and 5th plaintiffs retired in 2002, 7th and 20th plaintiffs retired in 2001, 19th plaintiff retired in 1999, 22nd plaintiff retired in 2003, the 10th, 12th, 13th, 6th 9th, and 14th plaintiffs retired in January, February, March and April, 2006 as the case may be. Therefore, whether the owner occupier scheme commenced in July or September 2006, all the plaintiffs had retired from service before the inception of the policy.”

The above set out findings of the learned trial Judge no doubt hit the nail on the head with respect to the status of the Appellants vis-a-vis the guideline for the sale of Benue State Government houses to its public/civil servants. I endorse the said findings to the effect that from the clear provisions of paragraph 4B (iii) (b) of Exhibit R1, the Appellants who do not deny the fact that they are retired civil/public servants do not come within the category of persons entitled to benefit from the owner occupier housing scheme as envisaged by the Government of Benue State.

For purposes of emphasis, record of proceedings at the trial Court show that all the Appellants retired from service before the commencement of the Benue State Government owner occupier housing policy as approved by Exhibit R1 in September, 2006. Their testimonies at the trial Court gave credence to this fact which though not in dispute was also conceded to in paragraphs 3.6, 3.8, 3.9 and 3.11 of the Appellants brief of argument. Added to this is the content of Exhibit R2 which is a document showing the various dates the Appellants retired from service with the most recent being April, 2006.

That is to say, that they all retired from service before the Government policy to sell its residential quarters to serving public/civil servants came into effect.

To further strengthen the point being made that the Appellants, as retired public/civil servant do not fall within the category of beneficiaries of the policy even though they were still in occupation of the quarters as rent paying tenants. Exhibit R3 dated 30/3/2000 clearly detailed the status of the Appellants as it related to the subject matter in dispute and the fact that retired civil servants fall outside the scope of intended beneficiaries of the Owner Occupier Housing Scheme. For clarity purposes. I herein below reproduce its content.

It reads:- NEW CONDITIONS FOR CONTINUED STAY IN GOVERNMENT QUARTERS BY RETIRED PUBLIC/CIVIL SERVANTS A phenomenon has come about in Benue State public/civil service, whereby-retired public/civil servants continue to stay in government residential quarters their retirement. The reason often given for such continued occupation of government quarters by the retirees include: – (i) Non-payment of their retirement benefits, especially gratuity, and (ii) Non-completion of payment of their retirement benefits. 2.

In some cases, even those public servants whose retirement benefits have been fully paid or those who have been dismissed still cling to government quarters using flimsy excuses which border on hollow sentiments. This situation leads to loss of government revenue as such occupants stay in the quarters without paying any rent for upward of 1 to 5 years. It also deprives other needy serving civil servants of access to the government quarters which ought to have been vacated by those who have left the service. 3.

The reasons (as listed in paragraph 1 above) which are often adduced to justify the continued stay in government quarters by retired public/civil servants are hardly tenable. It has to be re-emphasized that after three (3) calendar months from the date of retirement, Government no longer has any obligation in the realm of residential accommodation to any public/civil servant who retires from the service whether the retirement benefits have been paid or not. The same applies to the family of deceased officials.”

Reading the content of Exhibits R2 and R3 together, in addition to the clear cut evidence of PW1 at the trial gives credence to the irrebuttable conclusion that the Appellants ought to have vacated their residential quarters which were allocated to them by the Benue State government as serving public/civil servants as rent paying tenants before the Owner Occupier Housing Policy was introduced in September, 2006.

This bring me to the argument by learned counsel for the Appellants wherein he concluded in paragraph 4.1 at page 25 as follows:- 1. The scheme was designed for the benefit of civil/public servants of Benue State including the Appellants hence the caption OWNER OCCUPIER HOUSING SCHEME. See also clause B(iii) (d) of Exhibit RI. 2. The programme took off before the Appellants retired and it was the full implementation of the scheme that was carried out after the retirement of the Appellants. 3.

The term civil/public servants used in clause B(iii) (b) of Exhibit R1 does not exclude the Appellants. If the Appellants were meant to be excluded, this would have been clearly stated and it is wrong to read into the clause what is not therein just like the word “serving civil/public servants” was not used in the clause B (iii) (b) of Exhibit R1 so also is the word “retired civil/public servant was not used. It is therefore, wrong to read into the document what is not there.

The importation of the word serving civil/public servants” in the defence of the Respondents was deliberate and for their attempt to justify their wrongful and discriminatory treatment of the appellants and this Court is urged not to allow this injustice against the Appellants in the interest of justice.”

The answer to the above set out contention by the learned counsel for the Appellants has already been given in the earlier part of this judgment wherein I reproduced and wholly endorsed a portion of the judgment of the trial Court where the legal and dictionary meaning of the words, civil servant, Retiree, Retired, and Retirement were defined and distinguished with the conclusion that a civil servant does not mean the same thing as a retired civil servant as also clearly demonstrated by the evidence of PW1.

Further, the content of Exhibits R2 and R3 are enough proof to show that Exhibit R1 does not intend to include the Appellants in the owner occupier housing policy that evolved in September, 2006.

The extensive and exhaustive argument presented by the Appellants counsel in a bid to sway the mind of this Court is quite commendable, but unfortunately it is like trying to convince someone that the sun and moon are the same.

They are not, they have their peculiar characteristics and attributes. ​ Both parties had also argued strenuously on the issue whether the Appellants were not disqualified from benefitting from the Owner Occupier Housing Scheme by virtue of clause 4B (iii) (c) which prescribed that State civil/public servants found to be in arrears of rent payments must as a precondition off-set such ascertained outstanding arrears, before they will be eligible for purchase of the houses they occupied.

To my mind, pursuing such line of argument whether or not the Appellants were owing arrears of rent does not arise and amounts to flogging a dead horse in a bid to rouse it for an urgent trip. By the provisions of paragraph 4B (iii) (b) of Exhibit R1 and further supported by Exhibits R2 and R3, the Appellants ab initio fall outside the category of persons intended by the Benue State Government to benefit from the Owner Occupier Housing Scheme introduced in September, 2006.

Be it known by way of reiteration that where the language, words and terms used in any section, paragraphs of a document, contract, or enactment are clear and unambiguous as in Exhibit R1 they must be given their ordinary and actual meaning as such words or terms used declares and describes the true intent of the makers of such document, enactment or contract. A departure from this principle of interpretation is only permissible where such terms, words or expressions will lead to absurdity or in conflict with other provisions thereof.

See EFFIONG VS IKPEME (1999) 6 NWLR (PT.606) 260, AMIZU VS NZERIBE (1989) 4 NWLR (PT.118) 755; ODUYE VS NIGERIA AIRWAYS LTD (1987) 2 NWLR (PTS5) 126; UNION BANK OF NIGERIA LTD VS SAX (NIG) LTD & ORS (1994) 9 SCNJ page 1, or (1994) 8 NWLR (PT. 361) 1.50; IHUNWO VS IHUNWO & ORS (2013) 8 NWLR (PT. 1357) 550.

On the 2nd issue raised by the parties in their briefs of argument, whether the lower Court rightly held that the Appellants’ rights were not violated to warrant a remedy in the circumstance of the case. The latin maxim Ubi jus Ibi remedium (where there is a wrong there is a remedy) easily comes into play here, and that takes me to relief (i) claimed by the Appellants in paragraph 30 of their further, further statement of claim relied upon at the trial.

It reads:- “(i) Order of specific performance against the defendants to complete the contract of assignment of the houses which the plaintiffs now occupy by issuing to the plaintiffs receipts of purchase covering the houses and pay back balance due to the plaintiffs from the entitlement of each of the plaintiffs and where the entitlements have been paid, allow the plaintiffs effect payment of the purchase prices of the houses.”

Now a decree of specific performance is a form of relief that is purely equitable in nature and the fundamental rule is that specific performance will not be ordered if there is an absolute remedy at law in answer to the plaintiffs claim, that is to say, where the plaintiffs would be adequately compensated by the common law remedy of damages. See GAJI VS PAYE (2003) 7 SCM 55; AFROTEC TECHNICAL SERVICES (NIG) LTD VS MIA & SONS LTD & ANOR (2000) 15 NWLR (PT.672) 730.

An order for specific performance as an equitable remedy can only be granted to a successful litigant constraining the party at fault to carry out the agreement which it had entered into with the successful litigant. Like all equitable remedies, it is at the discretion of the Court but such discretion must be exercised judicially according to settled rules and principles. Put in another way, there can be no order for specific performance unless there is a definite and certain contract between the parties to the suit before the Court.

See BEST (NIG) LTD VS BLACKWOOD HODGE (NIG) LTD & 2 ORS (2011) 1-2 SC (PT 1) 55; NLEWEDIM VS UDUMA (1995) 6 SCNJ 72; HELP (NIG) LTD VS SILVER ANCHOR (NIG) LTD (2006) 2 SCNJ 178.

In the instant case, it bears no further explanation that in whatever manner it is approached, there is no contract between the Appellants and the Respondents for the sale or purchase of the Residential quarters they presently occupy having regard to the content of Exhibit R1.

To constitute a binding contract, there must be an agreement in which the parties are ad idem on essential terms and conditions thereof. The promise of each party must be supported by consideration. See BEST (NIG) LTD VS BLACKWOOD HODGE (NIG) LTD & ORS (Supra). In other words, for an enforceable contract to materialize between parties, there must co-exist a precise offer, an unqualified acceptance and a legal consideration with the intent to create a legal relationship. The hallmark of a valid contract is consensus ad idem, the meeting of minds by the parties concerned.

By their own oral and documentary evidence presented before the trial Court, the Appellants only responded to paragraph 4B(iii) (a) of Exhibit R1 which required all intending persons who wish to participate in the scheme to purchase an application Form at a fee of N500 and subsequently to pay a processing fee of N2,500.

According to them, the application forms were purchased, filled and returned but nothing further was done between them and the Respondents with regard to other terms and conditions specified in Exhibit R1. The only news they got thereafter was that their residential quarters have been reallocated to some other persons.

That is to say, apart from the general invitation made to persons who wish to participate in the housing scheme to purchase an application form at the rate of N500, the Respondents never had anything to do with the Appellants again as far as the process of purchase of the houses was concerned.

The lower Court captured the scenario properly and made a correct finding thereon as detailed in pages 1010 to 1012 of the Record as follows:- “There is no gainsaying the fact that the parties were not consensual on the existence of the contract of allocation of the houses to the appellants. Whereas, the appellants owned the view that there was, the respondents too an antithetical stance. For a balanced resolution of this stubborn point, I have juxtaposed their cases with the necessary elements of contract x-rayed above.

To start with, did the appellants’ applications, cocooned in Exhibits R6-R28, qualify as an offer? I have my doubts. My doubts are concretised by the ingredients of binding contract displayed above. Those applications, being housed in Exhibits R6- R28, constitute a mere declaration of their willingness to enter into negotiation which will metamorphose into an enforceable contract, see Omega Bank (Nig.) Plc. v. O.B.C. Ltd. (Supra). They can only qualify as invitations, to treat. An invitation to treat is merely a preliminary move in negotiations which may result into a contract.

It is a phenomenon that is incapable of an acceptance that will lead to a contract. See I. E. Sagay, Nigerian Law of Contract (Ibadan: Spectrum Books Ltd., second Edition, 2000) page 14; Carbolic Smoke Ball Con v. Carlill (1893) 1 O. B. 256. In order words, an invitation to treat is aforerunner to the formation of a valid contract which is usually ushered in by an offer. Being an initial contractual step, it is not amenable to acceptance by another party. It cannot form the basis of a cause of action. See Neka B. B. B. Mfg. Co. Ltd. v. A.C.B. Ltd. (Supra).

Thus, in so far as the appellants’ applications resided in the wide realm of an invitation to treat, they were, in the sight of the law, disobedient to acceptance, by the respondents, and, de jure impotent to give birth to their cause of action. Alas, each of those exhibits was anudum poctum in relation to the contract.” I agree with and endorse the above set out finding of the lower Court as representing the correct position in the law of contract. As was rightly held by this Court in BFI GROUP CORPORATION VS BUREAU OF PUBLIC ENTERPRISES (2012) 18 NWLR (PT.1322) 209.

An offer must be distinguished from an invitation to treat. An invitation to treat is the first step in negotiations between the parties to a contract. It may or may not lead to a definite offer being made by one of the parties to the negotiation. An invitation to treat is not an offer that can be accepted to lead to an agreement or contract. See also BPS CONSTRUCTION & ENGINEERING Co. LTD VS FEDERAL CAPITAL DEVELOPMENT AUTHORITY (2017) LPELR-42516 (SC). An invitation to treat is not an offer capable of acceptance that will result in a contract with a legal relationship between the parties.

It is merely a communication by which a party is invited to make an offer. It is thus different from an offer mainly on the ground that it is not made with the intention that it will create a binding relationship as soon as the person to whom it is addressed responds to the invitation as in the instant case where the Appellant in response to paragraph 4B (iii) (a) of Exhibit R1 took steps to purchase the forms for the sale of the house.

The said purchase, filling and return of the forms Exhibits R6 to R28 does not create any legal relationship or a binding contract between the parties that will justify a positive response by this Court to the Appellants prayer for an order for specific performance.

The necessary ingredients to trigger up the power of this Court in doing so is totally lacking in this case and I have no hesitation in answering issue two in the Appellants’ brief of argument in the affirmative to the effect that the lower Court was right to hold that the rights of the Appellants were not violated to warrant a remedy in the circumstance of the case.

On this premise, I find the appeal to be lacking in merit and it is hereby dismissed. Appeal Dismissed. Parties to bear their costs.

OLUKAYODE ARIWOOLA, J.S.C.: I had the opportunity of reading in draft the lead judgment of my learned brother, Samuel Oseji, JSC just delivered. I am in agreement with the reasoning therein and the conclusion arrived thereat, that there is no merit in the appeal and it should be dismissed. I too will dismiss it. Appeal dismissed.

UWANI MUSA ABBA AJI, J.S.C.: I had the privilege to read in advance the draft judgment of my learned brother, Samuel Oseji, JSC, just delivered, and I agree with his conclusion that the appeal be dismissed.

The Appellants were allocated houses built and owned by the Benue State Government which they occupied as tenants and paid rents. After their retirement from service and before vacating the houses, the Benue State Government came up with a policy with effect from 11/9/2006, to sell the houses to Civil Servants in the service of the Benue State Government. The Guidelines for the allocation of the houses were contained in the Benue State Executive Council (EXCO) Conclusions.

By the Guidelines, some of them were not eligible on owner-occupier basis because they were with the Federal and Local Governments. Furthermore, they had retired at the time the policy took effect and were in arrears of the rent contrary to the Guidelines.

The Benue State Government made invitation to its Civil Servants to apply for the houses to be allocated to them on owner-occupier basis, wherein the 23 Appellants also applied. Being not qualified, the Benue State Government allocated the houses to qualified persons. In refusal to give up possession for takeover by the bonafide allottees, quit notices were served on them. This caused the Appellants to sue at the High Court, Benue State, Makurdi. Their claims were dismissed. They appealed to the lower Court, which equally dismissed same, hence this appeal.

The said guidelines, Paragraph 4B (iii) (g) specifically provides “That houses presently occupied by Federal Government officers serving in the State as well as Local Government Staffer shall be re-allocated to deserving State public/civil servants who are the targeted prime beneficiaries.”

It is incontestable and clearly spelled out that the beneficiaries excluded those in the Federal and Local Government service.

The case filed by the Appellants was clearly a ruse, subterfuge, waste of time and nothing else!!! They are only at best buying time to enjoy more years in the occupation of the houses otherwise, they knew that they were clearly exempted from that policy. This appeal is dismissed without hesitation.

MOHAMMED LAWAL GARBA, J.S.C.: I have had the opportunity of reading a draft of the leading judgment written by my learned brother, S. C. Oseji, JSC, in this appeal and agree completely that for the reasons so lucidly set out therein, the appeal is apparently bound to fail for being devoid of merit.

In addition, I would like to state that the appeal being one against the concurrent findings by the two (2) lower Courts, the Appellants owe the duty and burden to show satisfactorily that any of the established reasons to warrant and justify interference with the findings by this Court, exists.

Situations in which the Court may interfere with the concurrent judgments of the lower Courts include:- (a) Where the findings are perverse, (b) Where the findings are unreasonable and against the evidence adduced, (c) Where the findings are in violation of some principles of law and procedure, (d) When the findings occasion a miscarriage of justice. See Lokoyi v. Olojo (1983) 8 SC, 61 at 68, Bankole v. Pelu (1991) 8 NWLR (pt. 21 1) 23, Ajayi v. Adebiyi (2012) 14 NWLR (pt. 1310) 137, Bayol v. Ahemba (1999) 10 NWLR (pt. 623) 381, Cameroon Airlines v. Otutuizu (2011) 4 NWLR (pt. 1238) 512.

From the evidence placed before the trial Court, the Appellants have failed to demonstrate any of the above or any other situation which will warrant interference with the findings of the lower Courts, by the Court in this appeal.

For the above and the pungent reasons set out in the leading judgment, I join in dismissing the appeal for lacking in merit.

EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the draft judgment of my learned brother, Lord Justice SAMUEL CHUKWUDUMEBI OSEJI, JSC. I completely agree with the reasoning, conclusions, decisions and orders therein.

Judgment

SAMUEL CHUKWUDUMEBI OSEJI, J.S.C . (Delivering the Leading Judgment): The Appellants by way of writ of summons filed at the High Court of Justice of the Federal Capital Territory, Abuja, sought the following reliefs against the Respondents: – “1. A declaration that the decision by the Federal Government of Nigeria to sell off all its houses, more particularly those occupied by the plaintiffs as shown in the schedule hereto, is an act which smacks of corruption, and consequently it is unenforceable, null, void and of no effect whatsoever. 2.

An order restraining the defendants either by themselves, servants, agents, privies, assigns however referred from doing anything or taking any steps towards the execution of the decision or policy of the Federal Government to sell the houses occupied by public servants or officers more particularly the houses occupied by the plaintiffs. IN THE ALTERNATIVE: ​3.

A declaration that there exists a valid and subsisting contract between the plaintiffs and the defendants for the sale to the plaintiffs of their respective houses as specified in the SCHEDULE attached to this Writ of Summons and that the parties are legally bound to exercise their rights and obligations under the contract. 4.

A declaration that the Public Notice issued by the Federal Government of Nigeria as contained in the Publication of the This Day Newspaper dated 2nd September, 2005 in volume II No. 3785 or such other Notice, Regulations or Guidelines that are issued in disregard to the aforesaid contract constitutes a breach of that contract and they are consequently not binding on the plaintiffs’ herein. 5.

A declaration that the official residences of the plaintiffs as specified in the Schedule to this Writ of Summons, cannot be made the subject of a public auction by the Federal Government of Nigeria during the subsistence of the contract for sale of the said houses to the plaintiffs. 6.

An order that the defendants, either by themselves, servants, agents, assigns, officials, officers, privies, attorneys or delegates, by whatever name referred or however described, are stopped from taking any unilateral decision with respect to the houses specified in the schedule hereto and sold to the plaintiffs, contrary to the terms and conditions of the contract subsisting between the parties in respect therefore. 7.

An order of perpetual injunction restraining the defendants either by themselves, servants, agents, privies, assigns, officers or officials, by whatever name referred or howsoever described from interfering with the occupation by the plaintiffs of the properties in the schedule hereto, or from doing anything or taking any steps contrary to or but not restricted to their peaceful and quiet possession. 8.

An order of perpetual injunction restraining the defendants by themselves, their servants, agents, functionaries, privies, whomsoever, from forcefully dispossessing the plaintiffs of their official residences in this matter, and from selling off the said residences otherwise than in compliance with the plaintiffs’ vested rights of first option of refusal of purchase of the properties. 9. Cost of this action.”

At the conclusion of the trial, the trial Court in its judgment dismissed the Appellants’ claim.

​Dissatisfied by the decision of the trial Court, the Appellants appealed to the Court of Appeal, Abuja Division. The lower Court in its judgment delivered on the 12th day of August, 2015, dismissed the Appellants’ appeal, and upheld the decision of the trial Court.

The Appellants still dissatisfied by the judgment of the lower Court appealed to this Court via notice of appeal filed on 12/10/2015. The Appellants’ brief of argument was filed on the 12/06/2017 while the Respondents’ brief of argument was filed on the 18/12/2020.

The parties adopted and relied on their respective brief of argument at the hearing of the appeal.

From the three (3) grounds of appeal, the following two (2) issues are distilled for determination: 1. Whether the lower Court was right when it held that there was no valid contract despite the preponderance of evidence led by the Appellants at the trial Court. (Distilled from Grounds one and three of Notice of Appeal) 2.

Whether or not the lower Court was right in law when it held that the appellants’ contention that the case put forward by them at the trial Court was the agreement between the Respondents and the appellants to make offers for sale of houses on a first option of refusal was not borne by reliefs sought by them at the trial Court. (Distilled from Ground 2 of the Notice of Appeal) The Respondents herein adopted the two issues for determination as formulated by the Appellants.

I shall consider this appeal on the basis of the two issues aforementioned.

APPELLANTS’ SUBMISSION On issue one, Learned Counsel submitted that the Appellants’ case at the trial Court was that by virtue of Exhibits B, B1-B95, C, F and G there was a binding contract between the Respondents and Appellants individually granting them a “first right of refusal” to the purchase of their respective houses which the Respondents failed to respect. He added that the trial Judge dismissed the case of the Appellants notwithstanding the fact that all the elements of a contract were present in the contract subsisting between both parties.

It was further submitted that the learned trial Judge’s findings that the agreement between the Appellants and the Respondents was inchoate and that there was no offer made to the Appellants capable of being accepted is contrary to the evidence on record and the lower Court nevertheless still affirmed the finding of the trial Court. He added that the contract which the Appellants alleged existed was one that should have given birth to the issuance of letters of offer on the basis of the First Right of Refusal.

In other words, the Appellants must be given an offer, which would contain details such as the price and the terms of payments.

On issue two, it was submitted that in the determination of suits or matter pending before a Court of law, the Courts are bound by the pleadings of the parties. He relied on the case of UDENGWU VS UZUEGBU & 4 ORS (2003) FWLR (PT 179) 1179 @ 1186 TO 1187 PARA G-C, he further submitted that the findings of the lower Court is erroneous in view of the pleading filed by the Appellants at the trial Court and in the light of the decision of this Court that Courts are bound by the pleading of parties, it will not be out of place to urge this Court to set aside the lower Court’s decision.

RESPONDENTS’ SUBMISSION Arguing on issues 1 and 2, learned counsel submitted that this is an appeal against the concurrent findings of the trial Court and the Court below and the appeal ought not to succeed unless the Appellants can show that the judgments of the trial Court and the Court below are perverse. He added that the Appellants have not been able to show that the judgments of the two Courts below are perverse. He relied on the case of CAMEROUN AIRLINES V. OTUTUIZU 2011 -1 SC (Part 111) 2001, OKEKE V. AGBODIKE 1999 12 SC (Part 11) 101 and ALAKIJA V. ABDULLAHI 1998 5 SCNJ 1.

It was further submitted that the Appellants by their own admission admitted that the Respondents did not make any offer to the Appellants for the sale of the houses in issue as the law is trite that what is admitted need no further proof.

It was contended that from the submissions of the Appellants vide paragraphs 4.5, 4.10, 4.17 and 4.20 of their brief, it is obvious that what the Appellants are alleging to exist is the contract that the Respondents must issue a letter of offer and also, the Appellants’ paragraph 4.10 of their Brief of Argument is an acknowledgment that no offer for the sale of the houses had been made to the Appellants by the Respondents.

APPELLANTS’ REPLY Learned counsel for the Appellants in their reply brief of argument submitted that contrary to the submissions of the Respondents at paragraph 4.1 of the Respondents’ brief of argument the two issues formulated for determination are not interwoven as Issue one deals with the decision of the lower Court that there was no valid contract while issue two deals with the decision of the lower Court that the contention of the Appellants at the lower Court was that the case put forward by them at the trial Court was the agreement between the Respondents and Appellants to make offers for sale of houses on the first option of refusal.

It was further submitted that contrary to the submissions of the Respondents at paragraphs 4.02 and 4.03 of the Respondents’ brief of argument, the Appellants have been able to show that the judgments of the trial Court and the lower Court were perverse. He added that this Court can interfere with concurrent findings of facts by two Courts where it is shown that the findings are glaringly wrong and will pervert the cause of justice. He relied on the case of OMISORE V. AREGBESOLA (2015) 15 NWLR (PT 1482) 205 at 275.

​It was contended that re-evaluating the documentary evidence led by the Appellants showed that it was not properly evaluated by the trial Court and the lower Court failed to hold that there was a contract subsisting between the Appellants and Respondents and that the Appellants were entitled to first option of refusal in the light of the subsisting contract.

He concluded by submitting that the Respondents failed to respond to the submissions of the Appellants on issue two and therefore the Respondents are deemed to have admitted the submissions of the Appellants in the said issue two.

OPINION Dealing with issue No. 1, a contract is an agreement giving rise to obligations which are enforced or recognized by law. The factor which distinguished contractual obligations from other legal obligations is that they are based on the agreement of the contracting parties.

For a valid contract to emerge, there are five elements that must be present and recognizable. These are offer, acceptance, consideration, intention to create legal relationship, capacity to create legal relationship and capacity to contract. ​Thus, before any contract or agreement can be said to come into existence in law, there must be an unmistaken and precise offer, followed by an unconditional acceptance of the terms mutually agreed upon by the parties thereto.

That is to say the parties to the agreement must be in consensus ad idem as regards the terms and conditions freely and voluntarily agreed upon by them. See BILANTE INTERNATIONAL LTD VS NIGERIA DEPOSIT INSURANCE CORPORATION (2011) 6-7 SC (PT IV) 113, OMEGA BANK PLC V. OBC LTD (2005) 8 NWLR (PT 928) 547, AMANA SUITS HOTEL LTD V. PDP (2007) 6 NWLR (PT. 1031) 453. Therefore, where an offer is made but is not accepted, there can be no agreement or contract arising therefrom.

An offer is an expression of readiness to contract on the terms specified by the offeror (i.e the person making the offer) which when it is accepted by the offeree (i.e the person to whom the offer is made) will give rise to a valid and binding contract. In other words, it is by acceptance that the offer is converted to a contract. See SPARKLING BREWERIES LTD & ORS V. UNION BANK OF NIGERIA LTD (2001) 10 SCM 163. A mere willingness to enter into a negotiation with a view to entering into a contract cannot be an offer but at best an invitation to treat. See OMEGA BANK PLC V. OBC LTD (SUPRA).

​In the case under consideration, the Appellants in their brief of argument assist this Court in narrowing down succinctly the issue in contention. Firstly, they acknowledge in paragraph 4.4 of their brief of argument that authorities abound to the effect that in order for a valid contract to exist, the following ingredients must be present :- A. Offer, B. Unqualified acceptance, C. Consideration, D. Intention to create legal relations; and E. Capacity to contract.

Secondly Appellants acknowledged the fact that there was no contract between them and the Respondents for the sale of the houses but that the trial Court misunderstood their case in that regard. Hear them in paragraphs 4.7 to 4.19 at page 8 of their brief of argument:- “4.17. The parties did not reach that stage of the transaction and consequently the question as to the refusal to sell did not and could not have arisen at that point.

What the Appellants put forward for the consideration of the trial Court, was the agreement between the Respondents and the Appellants to make offers for the sale of the houses on “or a First Option of Refusal”. 4.18 My lord the grounds of the Appellants was clearly and succinctly articulated in the penultimate part of paragraph 19 of the Further Amended Statement of claim. The Appellants indicated that, the cumulative effect of: (a) Letters dated 4th October, 2004. Exhibits B, B1-B95 (b) Exhibit C. (C) Exhibit E. (d) Exhibit F and Exhibit G.

“Constitute a binding contract conferring on the Plaintiffs, individually a first right to the purchase of their respective official residences.” See page 11 of Vol. 3 of the Record of Appeal 4.19 This is exactly what the Appellants are seeking to enforce. The Appellants thereafter alluded in paragraph 30 of the Further Amended Statement of Claim that because of the steps they had already taken it would not be proper to sell the houses by public auction. See (page 13 of Vol. 1 of the Record of Appeal).”

​Earlier at paragraph 4.10, it was also submitted that the contract which the Appellants are insisting to be existing is the one that should have given birth to the issuance of letters of offer on the basis of “first right of refusal.” That is to say, the Appellants must be given an offer, which would contain the details, such as the price and the terms of payments as averred in paragraphs 14, 15, 16, 17, 18, and 19 of their further amended statement of claim.

For the Appellants, the learned trial Judge wrongly evaluated the documentary evidence relied upon by them in support of their case (that is exhibits B, B1 to B95, C, F and G) and that it was erroneous for the lower Court to have affirmed the faulty findings of the trial Court.

Interestingly, the Respondents noticed the futility of the arguments set out in the Appellants’ brief of argument wherein they seem to have each shot themselves on the foot. This can be gleaned from the Respondents’ submissions at paragraph 4.02 to 4.10 of their brief of argument.

​I indeed endorse the submissions made by the Respondents as per the aforestated paragraphs and I am obliged to restate the fact that the Appellants by their own submission admitted wholly that the Respondents did not make any offer to the Appellants for the sale of the houses in question. This is clearly evident as per paragraphs 4.5, 4.10, 4.17, 4.18, 4.19 and 4.20 in the Appellants’ brief of argument.

The clear cut acknowledgment and concession by the Appellants to the effect that no offer for the sale of the houses had been made to them by the Respondents but that their case is built on exhibits B, B1 to B 95, C, F and G which contract thereof they want this Court to enforce by specific performance leaves this Court with the only option to determine whether any contract worthy of enforcement was ever made by the parties.

The issue was exhaustively addressed by the trial Court at pages 1742 to 1743 of the record of appeal and they are herein below set out:- “Now, the Plaintiffs base their contention that there exists a contract on Exhibits B, B1- B95, (being letters from the Defendants requesting the Plaintiffs to express interest to purchase houses Exhibits D, D1-D95 (being form of Expression of Interest to purchase houses), Exhibits F, F1-F97 (being reply of the Plaintiffs to Exhibits B, B1-B95) and Exhibits G, G1-G92 (being tellers for payment of N10,000.00 processing fee for the forms Exhibits D, D1-D95).

I would in due course consider Exhibit C and Exhibits E, E1-E8 to see whether they could have led to a contract or agreement between the parties. But for now, the issue is, from which of the foregoing Exhibits whether separately or collectively could it be said that the parties had arrived at a consensus ad idem in Order for there to be a valid contract.

It seems to me that Exhibits B, B1-B95 was not an offer for sale of houses to the Plaintiffs; it was no more than an invitation to treat, as was merely an invitation to the Plaintiffs to express interest in purchasing the houses occupied by them. Since it was an invitation to treat. The Plaintiffs’ reply, Exhibits F, F1-F97 was not an acceptance of any offer. It was only the indication by the Plaintiffs of their willingness to enter into negotiations with the Defendants. The said Exhibits could not have led to the Communication between the parties maturing into an agreement or contract.

See C.B. N. vs. S. A. P (NIG) LTD (2005) 3 NWLR (PT 911) 152 at 205, NEKA B. B MFG Co. LTD vs. ACB LTD (supra) at 563. The subsequent dealings between the parties as evidenced by Exhibits D, D1- D95 and Exhibits G, G – G92 were nothing more than negotiations in furtherance of the interest expressed by the Plaintiffs to purchase the houses occupied by them. Such negotiations may or may not result in an agreement and no matter how protracted, the negotiations cannot be likened to an agreement or contract. See NEKA B. B. B MFG CO. LTD ACB LTD (supra) at 555 and 563.

Now, I have found that Exhibits B, B1-B95 and Exhibit F, F1-F9 were nothing more than an invitation to treat and that Exhibits D, D1-D95 and Exhibits G, G1-G92 were negotiations from which an agreement may result, I have not found any cogent and compelling evidence on which I can hold that the parties intended to be bound by the negotiations, which negotiations in any event was inchoate as no purchase price was ever agreed upon neither was any letter of offer issued to the Plaintiffs. See Cheshire and Fi foot’s Law of Contract 9th Edition pages 27 and 31, CBN vs.

S.A.P (NIG) LTD (supra) al 186 B-C. I therefore hold that none of Exhibits B, B1- B95, D, D1-D95, F, F1-F97 and G G1-G92 whether separately or collectively shows that mutuality of purpose and intention on which I can hold that there has been an offer and an unqualified acceptance of that offer crystallizing in a contract between the parties.”

The lower Court in its judgment at page 2019 of Vol. 3 of the Record of appeal equally referred to the above set out findings of the trial Court and held as follows:- “In my view, the learned trial Judge came to the right decision having regard to the facts of the case”

Given the scenario earlier detailed in this judgment with particular reference to party’s pleadings, and evidence, the concession in the Appellants’ brief as well as the judgment of the trial Court as affirmed by the lower Court, I cannot but agree and in fact endorse the decisions of the two lower Courts having found them not perverse or against any principle of law. See CHIEF ADEBISI ADEGBUYI V. ALL PROGRESSIVE CONGRESS (APC) (2014) LPELR 24214 (SC), CHIEF (DR) O. FAJEMIROKUN V. COMMERCIAL BANK NIG. LTD (2009) 2-3 SC (PT 1) 26, IGBA V.

STATE (2018) 6 NWLR (PT. 1614) PG.67, ELEMECHUKWU IBATOR & ORS V. CHIEF BELI BARAKURO & ORS (2007) LPELR-1384 (SC).

​As earlier stated in this judgment, the Appellants readily agreed that no contracts exist between the parties for the sale of the houses but that based on the contents of exhibits B, B1 to B95, C, F and G a contract does exists by which the Respondents are to be compelled to issue them with a letter of offer for the sale of the houses. That is to say, no offer for the sale of the houses was made to the Appellants.

The Respondents had in response to the Federal Government directives (as per Exhibits E, E1 to E8), to sell its houses to career public officers and those in occupation to have the “first option of refusal” requested the Appellants by Exhibits B, B1 to B95 to indicate their interests, and this they did by Exhibits F, F1 to F97. Exhibit C was also issued as further information that the houses would be sold to them on completion of the necessary forms and on payment of N10,000 processing fee which the Appellants did as per Exhibits G, G1 to G92.

The Respondents found that the Appellants gave inaccurate information in Exhibit D1 to D95 with regard to their status as retired public officers, hence, they were found not qualified for the purchase of the houses. That ended the matter, as no offer was made to the Appellants for the purchase of the houses.

The Appellants had however, relied on the aforementioned Exhibits to insist that a contract has been created between parties which ought to have given birth to the issuance of letter of offer on the basis of the first right of refusal.

​In my view, and to all intents and purposes, the aforementioned documents relied upon by the Appellants does not, by a stretch of imagination create any valid contractual relationship that will move this Court to grant the reliefs as sought by the Appellants. At best, the said documents constitute nothing more than an invitation to treat as rightly found by the trial Court and affirmed by the lower Court. And as correctly held by this Court in B.F.I. GROUP CORPORATION VS BUREAU OF PUBLIC ENTERPRISES (2012) 18 NWLR (P 11322) 209, an offer must be distinguished from an invitation to treat.

An invitation to treat is the first step in negotiations between the parties to a possible contract. It is not enforceable by way of an order for specific performance as being sought by the Appellants. It is more like asking this Court to embark on a mission impossible. An invitation to treat may or may not lead to a definite offer being made by one of the parties to the negotiation. It is not an offer that can be accepted to lead to an agreement or contract. See BPS CONSTRUCTION AND ENGINEERING CO.

LTD VS FEDERAL CAPITAL DEVELOPMENT AUTHORITY. (2017) LPELR-42516 (SC). ​An invitation to treat is merely a communication by which a party is invited to make an offer. It is therefore different from an offer mainly on the ground that it is made with the intention that it will create a binding relationship as soon as the person to whom it is addressed responds to the invitation as in the instant case where the Appellants in response to Exhibits B, B1 to B95 and C took steps to purchase the forms for the sale of the houses.

The said procurement, filling and return of the forms as shown in Exhibits F, F1 to F97 does not unfortunately create any legal relationship or a binding contract between the parties that will justify an order for specific performance by this Court as sought by the Appellants. This can only be possible when there exists a valid contract between the parties and such valid contract can only emerge where all the elements constituting such are put in place.

That is to say, there must be an offer, acceptance, consideration, and an intention to create a legal relationship. ​It follows therefore that, there can be no order for specific performances as sought by the Appellants unless there is a definite and certain contract between the parties. See BEST (NIG) LTD VS BLACKWOOD HODGE (NIG) LTD & 2 ORS (2011) 1-2 SC (PT.I) 55; NLEWEDIM VS UDUMA (1995) 6 SCNJ 72 and HELP (NIG) LTD VS SILVER ANCHOR (NIG) LTD (2006) 2 SCNJ 178.

To constitute a valid contract, there must be an agreement in which the parties are ad idem on essential terms and conditions thereof and the promise of each party must be supported by consideration. The Appellants herein, by their own oral and documentary evidence before the trial Court only responded to Exhibits B, B1-B95 and C by the purchase, filling and return of the forms, like every other intending applicant for the purchase of the houses.

That is to say, apart from the general invitation made by the Respondents to the persons who wish to participate in the Federal Government Housing deal to purchase the relevant forms at the approved rate, the Respondents never had anything again to do with the Appellants as far as the process of purchase of the houses was concerned. For instance, the PW1 in his testimony during cross-examination admitted that there was no offer made to them by the Respondents.

Hence, it was recorded at page 1681 of the record of appeal as follows:- “Q = Do you have a letter of offer from the Defendants to the sale of the house to you. A = I don’t. Q = Was any price stated to you by the Defendants as the purchase of this House. A = No. This state of affairs was also conceded to by the Appellants in paragraph 4.20 at page 8 of the Appellants’ brief of argument and earlier set out in this judgment.

Also, in paragraph 4.10 the Appellants posited that the contract which they alleged existed was one that should have given birth to the issuance of letters of offer on the basis of “First Right of Refusal.” That is to say, they now seek for the Respondents to make an offer to them. It follows therefore, that whatever transaction that existed between the parties ended at the stage of an invitation to treat as there was never an offer to the Appellants, neither would an acceptance or consideration follow in the absence of an offer.

I am therefore, inclined to endorse the line of reasoning by the two lower Courts that there was no contract between the parties and there is nothing to enforce in favour of the Appellants.

​This issue is therefore, resolved against the Appellants.

On issue No. 2, herein the Appellants questions the correctness of the statement by the lower Court that their submission that the case put forward by them at the trial Court was an agreement between them and the Respondents to make offers for sale of houses on a “first option of refusal” was not borne out of the reliefs sought by them at the trial Court.

The status of the right of “first option of refusal” as put forward by the Appellants as the cornerstone of their case at the trial Court has been adequately addressed in this judgment in the course of resolving issue No. 1 and I adopt the stance of this Court thereon.

Albeit, for the purpose of clarity and satisfaction, I will engage in a brief discourse on this issue.

Now, the lower Court had in its judgment at page 2020 of the record held as follows:- “the contention of the Appellants in their brief of argument that the case put forward by them in the Court below as the agreement between the Respondents and the Appellants to make offers for the sale of houses on a “first option of refusal” is not borne by the reliefs which I have earlier set out in this judgment”

The Appellants’ contention is that the above set out finding of the lower Court is erroneous in view of the pleading filed by the Appellants at the trial Court which shows that the issue of first option of refusal was specifically raised in paragraphs 14, 15, and 16 of their further amended statement of claim. The reliefs claimed by the Appellants as per paragraph 34 of their further amended statement of claim is herein below set out:- 5.3. The Appellants claimed the following reliefs as endorsed in paragraph 34 of the Further Amended Statement of Claim dated 27th February, 2007. i.

A declaration that the decision by the Federal Government of Nigeria to sell off all its houses, more particularly those occupied by the plaintiffs as shown in the Schedule hereto, is an act which smacks of corruption, and consequently it is unenforceable, null, void and of no effect whatsoever. ii.

An order restraining the Defendants either by themselves, servants, agents, privies, assigns however referred doing anything or from taking any steps towards the execution of the decision or policy of the Federal Government to sell the houses occupied by public servants or officers more particularly the houses occupied by the Plaintiffs. IN THE ALTERNATIVE iii.

A declaration that there exists a valid and subsisting contract between the Plaintiffs and the Defendants for the sale to the Plaintiffs of their respective houses as specified in the SCHEDULE attached to this writ of Summons and that the parties are legally bound to exercise their rights and obligations under the contract. iv.

A declaration that the Public Notice issued by the Federal Government of Nigeria as contained in the publication of the This Day Newspaper dated 2nd September, 2005 in volume II No. 3785 or such other Notice, Regulations or Guidelines that are issued in disregard to the aforesaid contract constitutes breach of that contract and they are consequently not binding on the plaintiffs herein. v.

A declaration that the official residences of the Plaintiffs as specified in the Schedule to this Writ of Summons, cannot be made the Subject of a public auction by the Federal Government of Nigeria during the subsistence of the contract for sale of the said houses to the Plaintiffs. vi.

An order that the Defendants, either by themselves, servants, agents, assigns, officials, officers, privies, attorneys or delegates, by whatever name referred or however described, are estopped from taking any unilateral decision with respect to the houses specified in the Schedule hereto and sold to the Plaintiffs, contrary to the terms and conditions of the contract subsisting between the parties in respect thereof. vii.

An order of perpetual injunction restraining the Defendants either by themselves, servants, agents, privies, assigns, officers and officials, by whatever name referred or howsoever described from interfering with the occupation by the plaintiffs of the properties in the schedule hereto, or from doing anything or taking any steps contrary to or capable of depriving the Plaintiffs of the enjoyment of the rights accruing to them by virtue of the parties’ contract and this includes but not restricted to their peaceful and quiet possession. viii.

An order of perpetual injunction restraining the Defendants themselves their servants agents functionaries, privies whomsoever, from forcefully dispossessing the Plaintiffs of their official residences in this matter and from selling of the said residence otherwise than in compliance with the plaintiffs vested rights of first option of refusal of purchase of the properties. (underlining ours for emphasis) ix Cost of this action

The above sets out reliefs sought by the Appellants are in two segments. There is the main reliefs detailed in paragraph 34 (i) and (ii) while the alternative claim is in paragraph 34 (iii) to (viii).

It is glaring that the reliefs sought by the Appellants either in the main or alternative are declaratory reliefs with necessary orders to go with them if and where the declaratory reliefs are granted.

I have read through the declaratory reliefs as sought by the Appellants and found in paragraph 34 (viii) that an order is sought to restrain the Respondents from selling the houses, otherwise than in compliance with the Appellants vested rights of first option of refusal of purchase.

​In the circumstances I agree to some extent with the Appellants that it was one of the reliefs sought in the trial Court. Be it as it may, the said finding of the lower Court did not alter the fact that the issue was exhaustively considered and pronounced upon in terms of whether the said right of first refusal constitutes a contract that is enforceable against the Respondents.

I must also state for purposes of emphasis that an Appellate Court is only concerned with whether the judgment appealed against is right or wrong and not whether the reasons are correct or not. Where the judgment of the Court is right but the reasons are wrong, the Appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the Appellate Court will interfere. SeeEYO VS. INYANG (2001) 1 NWLR (PT. 715) 1, ABAYE VS. OFILI (1986) 1 NWLR (PT. 15) 134, UKEJUIANYA VS. UCHENDU 19 W.A.CA 46; NDAYAKO & ORS VS.

DANTORO & ORS (2004) 13 NWLR (PT. 889) 187 AT 198. In the instant case, this Court has no cause to interfere with the conclusion reached by the lower Court in its judgment even if some of the reasoning are not correct. The paramount consideration of an Appellate Court is whether the decision is right and not necessarily whether the reasons are right. See ODUKWE VS OGUNBIYI (1998) 8 NWLR (PT. 561) 339 AT 350.

​The issue is therefore partly resolved in favour of the Appellants.

Nonetheless, and in the final result, this appeal is found to be unmeritorious and it is hereby dismissed. Appeal Dismissed. Parties to bear their costs.

OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft, the lead judgment of my learned brother, Oseji, JSC just delivered. I am in agreement with the reasoning therein and the conclusion arrived thereat, that there is no merit in the appeal and it should be dismissed. I too will dismiss it. Appeal dismissed.

UWANI MUSA ABBA AJI, J.S.C.: My learned brother, Samuel Oseji, JSC, privileged me with a copy of the draft judgment in this appeal for my scrutiny. Having gone through same, I am of the firm opinion that the appeal lacks merit and ought to be dismissed.

​The Appellants sued the Respondents at the High Court of the Federal capital Territory, Abuja, seeking for a declaration that their official residences as specified in the Schedule cannot be made the subject of a public auction by the Federal Government of Nigeria during the subsistence of the contract for sale of the said houses to the Appellants.

The trial Court found out that no such contract has come into being between the Appellants and the Respondents and therefore dismissed the claims of the Appellants. Dissatisfied, the Appellants appealed to lower Court, which found the appeal unfounded and without merit. The Appellants have still approached this Court to try their luck.

Having appraised the facts and circumstances of this appeal, it is most unfortunate that the Appellants will want this Court to force on the Respondents an obligation and duty they did not contract with the Appellants. It is glaring and undoubted that the Respondents have not gone into a contract with the Appellants, the breach of which is to ripen into specific performance. There must exist a condition before an order of specific performance can be made. There was indeed no mutuality between the Appellants and the Respondents as regards the sale of the residences occupied by the Appellants.

Thus, there was no contract between them. There is that absence of mutuality which is a pre-requisite condition in an action for specific performance. There must be a valid contract between the parties before an order for specific performance can be claimed. Specific performance is an equitable remedy based on the discretion of the Court, and it is generally ordered where damages will be inadequate to meet the justice of the case. Mutuality must be available to either party at the time of the contract.

See Per OLATAWURA, J.S.C, inLSDPC & ANOR V NIGERIAN LAND & SEA FOODS LTD (1992) LPELR-24855(SC) (P. 26, PAR-AS. A-C).

I agree with my learned brother’s conclusion that this appeal fails. This appeal is dismissed and the judgment of the lower Court is affirmed.

MOHAMMED LAWAL GARBA, J.S.C.: After reading a draft the lead judgment written by my learned brother, S. C. Oseji, JSC, in this appeal, I find that all the news expressed on the issues put up for decision by the Court and the conclusions thereon, are the same with mine and agree that the appeal is wanting in merit.

I join in dismissing it in the terms set out in the lead judgment.

EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the judgment delivered by my learned brother, Lord Justice Samuel Chukwudumebi Oseji, JSC, I completely agree with the reasoning, conclusions and orders therein.

Judgment

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C. (Delivering the Leading Judgment): The instant appeal is against the judgment of the Court of Appeal, Abuja Judicial Division, delivered on February 24th, 2015 in appeal No. CA/A/673/2013. By the said judgment, the Court below granted the Respondent’s appeal against the Appellant.

BACKGROUND FACTS The Appellant happens to be a financial institution duly incorporated under the Companies and Allied Matters Act, CAP. C.20 Laws of the Federation of Nigeria, 2004.

Contrariwise, the Respondent is a parastatal of the Federal Government of Nigeria duly established pursuant to the provisions of the Nigeria Social Insurance Trust Fund Act CAP. N88 Laws of the Federation of Nigeria. The Respondent as a Social Trust Fund, duly established by the Federal Government, has had a cause to be engaged in a banking business with the Appellant.

On 19/05/2008, the Respondent applied vide a letter to roll over various sums of money in the Appellant’s Bank for a fixed terms of 31 days. The whole essence of the transactions between the parties was to gain some interests.

On 18/8/2008, the Appellant made some payments to the Respondent at annual interest rates of 11% and 2% penal rate, as against the 2% daily interest rate allegedly agreed upon by the parties.

On 13/8/2010, the Respondent introduced the Accounting Firm of D.E. Ogona & Co. to the Appellant, thereby demanding further interest payments from the Appellant. The Appellant, however, denied any lability, claiming that it had fully paid those sums of money to the Respondent.

Thus, on 21/6/2011, the Respondent caused a writ of summons to be instituted at the FCT High Court by CAC Agidi Esq. of Eric Apia & Co. By virtue of the endorsement on the face of the writ of summons and statement of claim (filed along with the writ), the Respondent claimed against the Appellant the following reliefs: a. N16,639.23 being the amount of the 4 days penalty for default plus the regular interest on the placement of N205,581,158.11. Less and N294,803.83 already paid as interest and penalty. b.

The sum of N62,582,512.11 being the amount for the 5 days penalty for default plus the regular interest on the placement of N616,559,877.02. c. The sum of N40,225,913.48 being 21% interest on both placement from the due dates to 20th August 2010. d. 21% interest per annum on the total sum from 21st day of August 2010 till judgment is delivered. e. 10% interest from the date judgment is given until final liquidation of the debt. f. N6,000,000 being the cost of the prosecuting of this suit. g. Exemplary damages.

Parties haven filed and exchanged their respective pleadings, the matter proceeded to full blown trial. At the conclusion of the trial, the trial Court delivered the vexed judgment on May 2nd, 2013 to the conclusive effect that the Respondent’s claim lacked merits and accordingly dismissed same.

Not unnaturally, the Respondent was utterly dissatisfied with the decision of the trial Court, thus appealed to the Court below. On February 24th, 2015, the Court below delivered the vexed judgment to the following conclusive effect: In the facts relating to this appeal, there is no convincing evidence that there were verbal or oral negotiations to written agreement between the parties.

The fact that the Appellant did not immediately request for the balance of the penalties calculated as per daily default does not amount to a waiver of the balance payment. … Having resolved the two issues in favour of the appellant this appeal succeeds and it is hereby granted. For the avoidance of doubt, the appellant is hereby awarded the monies against the respondent… I award costs of N30,000.00 in favour of the appellant against the respondent.

On February 1st, when the appeal came up for hearing, the learned counsel had the opportunity of addressing the Court and adopting the argument contained in their respective briefs, thereby warranting the Court to reserve judgment to today.

The Appellant’s Amended brief, settled by Taiye Oniyide Esq. on 07/5/2018, spans a total of 21 pages.

At page 3 thereof, three issues have been nominated for determination of the appeal: (i) Whether the lower Court was right when they held that the defence of Estoppel by conduct did not avail the Appellant. (Relates to Ground 1) (ii) Whether the lower Court was right when they held that the Respondent is entitled to its reliefs. (Relates to Ground 2) (iii) Whether the lower Court was right when they held that the trial Court did not properly the evidence of admission by conduct adduced by the Respondent. (Relates to Grounds 1 & 3).

The issue 1 has been extensively canvassed at pages 3-12 of the said brief. Without much ado, it is submitted that the Court below was wrong when it held that the defence of estoppel by conduct did not avail the Appellant.

Copiously alluding to the finding at page 323 of the Record, it is argued that. the Court below arrived at that decision without properly evaluating the Appellant’s submissions and evidence placed before it.

See BLACK’S LAW DICTIONARY 8th Edition; Section 169 of the Evidence Act 2011, regarding the concept and definition of estoppels.

Briefly sketching the facts of the case culminating to the instant appeal (paragraphs 3.04-4.03 at pages 4-5), it is argued that it is not in dispute, that there was an express agreement regulating the transaction between the parties, but this agreement was varied after the Appellant paid 11% interest and 2% penal fee vide business letter to which the Respondent did not reply.

​It is postulated, that silence is an admission which is capable of acting as estoppel, thereby denies a remedy. See OLUFUNMISE VS. FALANA ​(1990) 3 NWLR (pt. 136) 14 paragraph B; MARADUN VS. TAMBUWAL (2015) LPELR- 24443; et al.

It was finally submitted that the cumulative effect of the Appellant’s argument under issue 1, is that a case of estoppel by conduct has been established by the Appellant against the Respondent. The Court is urged to so hold and resolve issue No. 1 in the affirmative.

The issue 2 is argued at pages 12-17 of the brief, to the effect that the Court below was wrong to have held that the Respondent was entitled to its reliefs.

Copiously alluding to pages 322-324 & 326 of the Record vis-a-vis Exhibit 19 (page 19 Record), it is argued that the Respondent was not entitled to the sums of N16,693,639.23 and the N62,582,512.11, respectively, as the Appellant had already settled the total amount owed the Respondent.

The Court is urged to so hold, and accordingly resolve the issue 2 in the negative.

The issue 3 is argued at pages 17-20 of the said brief. In a nutshell, it is submitted that a careful perusal of the circumstances of this case would show that estoppel by conduct has been proved beyond per adventure by the Appellant.Therefore, the Court is urged upon to hold that the judgment of the Court below is against the weight of evidence.

See OLONADE VS. SOWEMIMO (2014) 14 NWLR (pt. 1428). UKEJE VS. UKEJE (2014) 11 NWLR (pt. 1418) 384, et al.

The Court is urged to so hold, and resolve the issue 3 in the negative. On the whole, the Court is urged to allow the appeal.

Contrariwise, the Respondent’s brief, settled by Tuduru U. Ede Esq. on 14/8/2018, spans a total of 40 pages. At pages 3-4 of the brief, two issues have been thrown up for determination: (a) Whether the agreement of the parties in writing as to the payments of annual and daily penalty interests was varied orally thereby estopping the respondent from demanding interests as provided in the agreements between. The parties? Grounds 1 & 3; (b) Whether the Court below was right in granting to the Respondent the relief sought in the suit? Ground 2.

However, the Respondent has deemed it expedient to raise a preliminary objection at pages 4-6 (paragraphs 4.0-4.4), while the argument thereon is provided at pages 4-17 of the said brief.

​In the main, the submission of the Respondent on the preliminary objection is that grounds 1, 2 and 3 of the Notice of Appeal pages 331-333 of the Record) are incompetent, thus ought to be struck out. Further submitted, that each of the three grounds of appeal (1, 2 & 3) raises evaluation or examination of facts for which leave of Court ought to have been sought and granted before they were filed. See AG BENDEL STATE VS. AG FEDERATION (1981) All NLR 85, 204 paragraph 4 per Fatayi Williams, CJN, et al.

It was argued, that no such leave was sought and none was granted. The grounds are therefore incompetent. See ALLANAH VS. KPOLOKWU (2016) 6 NWLR (pt. 1507) 1, per Kekere-Ekun, JSC @ 52-53 paragraphs G-D.

On the whole, the Court is urged upon to strike out the said grounds (1, 2 & 3) of the notice of appeal for being incompetent.

The Respondent proceeds to canvass argument on the two issues formulated on the merits. The issue (a) is canvassed at pages 17-33 of the Respondent’s brief. In the main, it is submitted that since the contract between the Appellant and Respondent was entered into writing, as shown in Exhibits P1-P6, then the tenor and terms of such a contract can only be read and known by the contents of the documents. Thus, any condition or agreement which seeks to vary the original agreement between the Appellant and Respondent must itself be in writing.

See Section 128 (1), (b), (c), (d), (e), (2), (3) of the Evidence Act; BALIOL (NIGERIA) LTD VS. NAVCON (NIG) LTD (2010) 16 NWLR (pt. 1220) 619, 630 paragraphs A – E; et al.

Further submitted, that the Court below amply captures the inapplicability of the doctrine in the present case and was therefore right by its findings at pages 321-322 of the Record. The Court is urged to so hold and resolve issue (a) in favour of the Respondent.

The Respondent’s Second Issue (b) is argued at pages 33- 37 of the brief thereof. In a nutshell, it’s submitted that the Respondent proved and was entitled to reliefs (i), (ii), (iii), (iv) and (v) of the claim thereof. As such, the Court below was right when it held at pages 323 and 324 of the Record, that the Respondent was silent and did not contest reliefs (iii), (iv) and (v) of the Appellant’s claims. The three reliefs are therefore deemed admitted.”

​It is postulated, that the Court below acted properly by evaluating the evidence in the face of improper evaluation of same by the trial Court. The Court is urged to discountenance and expunge issue 2 of the Appellant’s Amended brief. This is because the said issue 2 does not arise from ground 2 of the Notice of Appeal (page 332 of the Record). The Court is urged to resolve the second issue in favour of the Respondent.

On the whole, the Court is urged upon to dismiss the appeal and affirm the judgment of the Court below.

The Appellant’s Amended brief was filed on 28/7/2020, but deemed properly filed and served on 02/12/2020. It spans a total of 19 pages. Pages 1-9 (paragraphs 1.1-2.33) of the brief specifically deal with the Respondent’s preliminary objection.

It is submitted, that a careful perusal of grounds 1 and the particulars thereof revolve around the complaint that the Court below misunderstood the law on estoppel (Section 151 of the Evidence Act, 2011), and wrongly ascribed probative value to the evidence on record.

The Court is urged upon to dismiss the preliminary objections.

​DETERMINATION OF THE RESPONDENT’S PRELIMINARY OBJECTION As alluded to above, by the Respondent’s Amended Brief of Argument (14/8/2018) at page 4 (paragraphs 4.0-4.2), an objection is raised, thereby the competence of Grounds 1, 2 and 3 of the Notice of Appeal (pages 331-333 of the Record) and issues 1, 2 and 3 of the Appellant (pages 3-20 of the Appellant’s Amended Brief) respectively.

The Notice of Preliminary Objection is predicated upon a total of 22 grounds: (a) Grounds 1 and 3 of the Notice of Appeal are on facts or mixed law and facts. (b) No leave of the Court below or this Honourable Court was first sought and obtained to appeal to this Honourable Court on the grounds 1 and 3 of the Notice of Appeal. (c) The particulars of errors to the grounds 1 and 3 of the Notice of Appeal disclose substantial issues of facts points of facts and questions of facts in the Court below or trial Court and now being challenged before this Court without leave. (d) The substantial issues of facts, questions and points of facts raised and challenged herein in grounds 1 and 3 of the Notice of Appeal were made by the trial Court against which appeal cannot lie directly to this Court. (e) Ground 3 of the Notice of Appeal questions evaluation and assessment of evidence which are matters of facts for trial Court or those to be raised only with leave of the Court below or this Honourable Court. (f) Particulars 1-4 of Ground 3 of the Notice of Appeal are all on facts and query assessment and evaluation of facts/evidence. (g) Issue 1 of the Appellant’s Amended Brief Argument is incompetent having been formulated from an incompetent ground of appeal. (h) Issue 3 of the Appellant’s Amended Brief of Argument is incompetent having been raised from incompetent grounds of appeal. (i) Issue 3 of the Appellant’s Amended Brief of Argument is incompetent having been raised from both ground 1 and 3 of the Notice of appeal and which said ground 1 has been used earlier to formulate issue 1. (j) A ground of appeal cannot give rise to more than one issue for determination. (k) Ground 1 of the Notice of appeal cannot be used to raise issues 1 and 3. (l) Grounds 1 and 3 are caught by Section 233(3) of the 1999 Constitution (as amended) and so incompetent. (m) Ground 3 of the Notice of Appeal being omnibus ground of appeal and issue 3 formulated therefrom cannot be used to attack specific question in the appeal there being no specific ground of appeal to that effect. (n) The ground 1 and 3 of the Notice of Appeal constitute appeal against decision of the High Court and arguments on the issues 1 and 3 of the Appellant’s Amended Brief of Argument are incompetent and without jurisdiction. (o) The ground 1 on estoppel by conduct is a question of fact requiring leave of the Court below or this Honourable Court first sought and obtained to challenge on a final appeal. (p) Particulars 1-6 of ground 1 of Notice of Appeal are questions of facts. (q) Issue 2 of the Appellant’s Amended Brief of Argument and arguments on it are incompetent as the omnibus ground of appeal cannot be used to generally attack a judgment on appeal (r) Ground 2 of the Notice of Appeal is incompetent as it is appeal on cost that requires leave under Section 241 (2) of the 1999 Constitution (as amended). (s) The appeal on cost requires leave of Court which in this appeal was not first sought and obtained of either the Court below or of this Honourable Court. (t) There is no jurisdiction in this Honourable Court to hear appeal from High Court. (u) There is no jurisdiction to hear and determine the appeal.

Grounds 1, 2 and 3 of the Appellant’s Amended Notice are to the following effect: 3. GROUNDS OF APPEAL The learned justice of the Court of Appeal erred in law when they held that the doctrine of estoppel by conduct is not applicable in the instant appeal. PARTICULARS OF ERROR 1. The respondent accepted a lesser amount as full and final payment under the contract pursuant to a subsequent oral agreement to vary the initial agreement. 2. Acceptance of a lesser amount as full and final payment of a contractual sum is sufficient consideration in law. 3.

The Respondent received the Appellant’s latter of 18/8/2008 forwarding the sum of N1,104,856.18 and the sum of N294,803.8 respectively, being 11% interest rate and 2% penalty for the delay in the transfer of the Respondent’s investment of N616,559,816.02 and a further, N205,581,156.11 which the Respondent accepted unconditionally as full and final payment for the transaction. 4. It was an afterthought. for the Respondent who accepted the above sum in final liquidation of the contractual sum in 2008 to demand for a further balance in August 2010. 5.

The Appellant relied on the impression created by the Respondent by the prolonged silence as an admission by conduct of the subsequent oral agreement to vary the contract, and the Respondent is estopped from asserting the contrary. 6. The Respondent by its conduct altered the Appellant’s position to its detriment having acted on the promise or representation made by the Respondent and same cannot be allowed to revert to previous legal relation as if no such representation was made by it.

GROUND 2 The learned justice of the Court of Appeal erred in law when they held that the Respondent was entitled to N6,000,000 (Six Million Naira) being the cost of prosecuting the suit at the trial Court. PARTICULARS OF ERROR 1. No material was placed before the Court below to entitle the Respondent to Six Million Naira cost of prosecuting the case. 2. Costs are not imposed to punish the losing party but are given by law as indemnity to the successful party. GROUND 3 The entire judgment in issue is against the weight of evidence. PARTICULARS OF ERROR 1.

From the evidence adduced, a clear case of estoppel by conduct was made out by the Appellant. 2. The judgment is an affront to the well established principle of estoppel by conduct and/or standing by. 3. The Court below did not properly evaluate the evidence of admission by conduct duly established by the Appellant. 4. It is not automatic in law that oral evidence cannot be used to vary documentary evidence. Additional grounds may be filed when the judgment of the Court below is collected. 5.

RELIEFS SOUGHT AT THE SUPREME COURT (a) An order of this Honourable Court allowing the appeal and affirming the decision of the trial Court, and setting aside the judgment of the Court of Appeal. (b) Such further order(s) as this Honourable Court may deem fit to make in the circumstance of this appeal. PARTICULARS OF ERROR

​Firstly, on ground 1 of the Notice of Appeal, it is not in doubt as aptly posited by the Appellant, the complaint therein is that the Court below erred in law when it held that the doctrine of estoppel by conduct is not applicable. Grounds 1 equally raises the question of whether or not the Court below considered Section 151 of the Evidence Act 2011 on estoppel before arriving at its decision.

A critical albeit dispassionate perusal of the six particulars of Ground 1 would reveal that the Appellant’s ground essentially revolves around the complaint that the Court below misunderstood the law on estoppel and resultantly wrongly ascribed probative value or proper weight to the evidence on record. See ENTERPRISE BANK LTD VS. AROSO (2014) 3 NWLR (pt. 1394) 256 @283; NJC VS. AGUMAGU (2015) 10 NWLR (pt. 1467) 365 @ 403.

Indeed, the law is well settled beyond per adventure, that a ground of appeal which does not dispute the facts but merely raises legal conclusions thereby, arising the alleged admitted, is qualified to be construed or deemed as a ground, the fact that some of the particulars supplied there upon bear semblance of facts. See OKEDARE VS. ADEBARA (1994) 6 NWLR (pt. 349) 157 @ 179 paragraphs B- G.

In the circumstance, Ground 1 ought to be, and it is hereby upheld to be a ground of law and competent.

​Secondly, ground 2 of the Appellant’s Notice of Appeal vis-à-vis paragraph (b) of the particulars of errors thereof, have questionably raised the issue of evaluation or findings of facts on some material question arising therefrom. Thus, the second ground al best raises issues of mixed law and facts, thereby requiring leave of Court prior to raising same.

The law is well settled, beyond per adventure, that any appeal to the apex Court from the decision of the Court below on questions of facts or of mixed law and facts is beyond the contemplation and purview of Section 233 of the Constitution of the Federal Republic of Nigeria, 1999 as amended. Thus, for such an appeal (on issue of valid competence), the leave of either the Court below or this Court must be sought and obtained. See ERISI VS. IDIKA (1987) 4 NWLR (pt. 66) 503; NALSA AND TEAM ASSOCIATES VS. NNPC (1991) 10-12 SC 83; (1991) 8 NWLR (pt. 212) 652; ALLANAH VS.

KPOLOKWU (2016) 6 NWLR (pt. 1507) 1 @ 52-53 paragraphs G-H. ​Thirdly, ground 3 is unarguably an omnibus ground of appeal, which fundamentally raises a question of facts only, thereby requiring the necessary leave of Court by virtue of the provision of Section 233 (3) of the 1999 Constitution (supra). See OJEMEN VS. MOMODU (supra) per Obaseki, JSC @205 paragraphs C-E; AKIWIWU MOTORS LTD VS. SONGONUGA (1984) 1 ALL NLR 309. Most particularly, in the latter case of AKIWIWU MOTORS LTD VS.

SONGONUGA (supra), this Court aptly reiterated the fundamental trite doctrine: “It is clear to me the first ground of appeal is a ground of facts and to put it at its best the 2nd ground of appeal is mixed question of law and facts… that being the case, and since no leave has been obtained in accordance with Section 213 (3) of the Constitution, the appeal is incompetent.” Per Bello, JSC (as he then was) @ 310. See also OPUIYO VS. OMONIWARI (2007) 16 NWLR (pt. 1060) 415, per Chukwumah- Eneh, JSC @ 444 paragraph F.

​In the circumstances, I uphold the Respondent’s preliminary objection and strike out incompetent Grounds 2 and 3 of the Notice of Appeal. A fortiori, the said issues 2 and 3 of the Appellant’s Amended brief, distilled from the said incompetent Grounds 2 and 3, ought to be and same are equally struck out for incompetence. Undoubtedly, the implication of striking out of the Grounds 2 and 3 and issues 2 and 3, is that the appeal ought to be determined on issue 1 (distilled from Ground 1) only. And I so hold.

ISSUE NO. 1 As copiously alluded to above, the first issue raises the question of whether or not the agreement of the parties in writing as to the payments of annual and daily penalty interests was varied orally, thereby estopping the Respondent from demanding interests as provided in the agreement between the parties. Apparently, the Respondent’s issues (a) and the Appellant’s issue No. 1 are not at all mutually exclusive.

The finding of the Court below, which forms the very basis of the first issue under discussion, could be found at pages 322-323 of the Record of Appeal, viz: In the instant case, the Respondent has not suffered nor was there any type of Appellant’s delay in demanding the balance payment of 2% daily default interest. The doctrine of estoppel is not applicable to this case. The defence of estoppel by conduct does not avail the Respondent of its liabilities under written agreements.

The Respondent shall not be allowed to resile from the written agreement he willingly entered into with the Appellant. Issue one is resolved in favour of the Appellant. It was posited by the Appellant (page 3 Appellant’s brief). that the Court below arrived at the aforementioned decision without properly evaluating the evidence and Appellant’s submissions placed before the Court.

Instructively, it is trite that in a plethora of cases reiterated the fundamental principles regarding estoppel. It was aptly posited by this Court in JACOB OYEROGBA VS. EGBEWOLE OLAOPA (1998) LPELR-SC.300/1990: Estoppel is now more than (a) rule of practice and it can rightly be described as substantive rule of law. There is estoppel where a party is precluded from saying a certain statement of fact is untrue whether in reality it is true or not.

Estoppel, in nature, is a conclusion creating a disability precluded from contending or proving in any legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to that disability. There are four kinds of estoppel, viz: Estoppel by matter of record, estoppel by deed, estoppel in pais, and promissory estoppel: Per Belgory, JSC (as he then was). In the case of FRED-EGBE VS. THE HON. JUSTICE J. A.

ADEFARASIN (1987), /SC/; (1987) ALL NLR; (1987) LPELR-1032 (SC), it was posited by this Court that estoppel is but an integral part of the law of evidence: It is no other than a bar to testimony and its sole office is either to place an obstacle in the way of a case which might otherwise succeed or to remove an impediment out of the way of a case which might otherwise fail: In estoppel is thus either a mine layer or mine sweeper: It is never a capital unit. Normally an estoppel ought to be pleaded by the party relying on it. Per Oputa, JSC @ 34-35 paragraphs G-A.

Thus, by operation of the veritable rule of estoppel, a person ought not to be allowed to blow hot and cold, to affirm at one time and deny at another time. That’s to say, to approbate and reprobate. Indeed, he should not be permitted to mislead another person into believing a state of affairs, only to turn around to deny the existence of such state of affairs to the disadvantage of that other person. See CANE VS. MILLS (1862) 7 H & N 913 @ 927-928. Dealing generally with the doctrine of estoppel in the case of JOE IGA VS.

AMAKIRI (1976) 11 SC 1, this Court aptly held @ 12 – 13: If a man by his words or conduct willfully endeavors to cause another to believe in a certain state of things which the first knows to be false and if the second believes in such state of things and act upon the belief, he who knowingly made the false statement is estopped from averring afterwards that such a state of things does not exist at the time; again, if a man either in express terms or by conduct, makes representation to another of the existence of a state of facts which he intends to be acted upon in a certain way, in the belief of the existence of such a state of facts, to the damage of him. who so believes and acts, the first is estopped from denying the existence of such a state of facts.

Per Nnaemeka-Agu, JSC @ 27 paragraphs A-G. See also CAINCROSS VS. LORIMER (1860) 3 LT 130; RAMSDEN VS. DYSON (1866) L.R.I. HL 129; MOREYO VS. OKIADE 8 WACA 46 @47-48; YUSUFF VS. DADA (1990) 7 SC (pt. 11) 18; (1990) NWLR-3538 (SC). UGHUTEVBE VS. DR. SHONOWO (2004) 18 NSCQR 7111, (2004)16 NWLR (pt. 899) 300; (2004) LPELR -3317 (SC).

​In the instant case, the Respondent (as plaintiff) contends that the agreement between the Appellant herein (as Defendant) was duly entered and reduced in to writing as captured in Exhibits P1, P2, P3, P4, P5 and P6, respectively (pages 12-19 of the Record of Appeal). Paragraphs 3, 4, 5, 6, 7 and 8 of the Respondent’s statement of claim (pages 4 & 5 of the Record) were alleged to have been uncontroverted and admitted by the Appellant at paragraph 2 of the statement of Defence thereof (page 75 of the Record): 2. “The Defendant admits paragraphs 1, 2, 3, 4, 6, 7 and 8 of the statement of claim”

Now, the said paragraphs 1, 2, 3, 4, 5, 6, 7 and 8 of the Respondents of 2 of the Appellant’s slate of Defence copiously alluded to above are to the following effect: 1. The plaintiff is a Federal Government parastatal established by an Act of the National Assembly and carries on banking business with the defendant. 2. The defendant is a duly registered company that carries on business of banking. 3. That by a letter dated 19th May 2008, the plaintiff applied to roll-over the sum of N205,581,156.11 in the defendant’s bank for a fixed term of 31 days. 4.

That the effective date of the placement was 23/5/2008 while due date is 23/6/2008 at an interest rate of 11% per annum and 2% penalty per day on default. 5. That the placement and the terms were accepted by the defendant vide a rollover advice no 0828988 which was received by the plaintiff on the 27/6/2008. Plaintiff shall rely on the rollover advice during trial. 6.

That the plaintiff rolled over another sum of N616,559,877.02 for a fixed tenor of 30 days at an annual interest rate of 11% with effective date being 26/5/2008 and due date being 25/6/2008 with 2% penalty per day on default in payment Plaintiff shall rely on this letter during trial. 7. That the defendant accepted the placement and the terms vide a rollover advice No. 0828991 received by the plaintiff on the 27/05/08 plaintiff shall rely on the Rollover Advice. 8.

That on the 18th of June 2008, plaintiff wrote to the defendant reminding them of the due dates which is 23/06/2008 for the placement of the N205,581,156.11 and another letter dated 18/06/08 reminding them that the placement will be due on 25th June 2008 for the N616,559,877.02 placements and the bank where the proceed should be paid into. Plaintiff shall rely on this letter.

​Consequent upon the due dates for the payment of the sums as per the agreement of the parties, the Respondent wrote Exhibits P5 and P6, thereby nominating bank accounts into which the monies should be remitted by the Appellant. See Exhibits P5 & P6 (pages 16 and 17 of the Record) dated 18/6/2008.

The Appellant deemed it expedient to unilaterally annualize all the payments and thereby paid only the sums of N1,104,856.18 and N294,803.8, which according to the Respondent were far below the actual interests due as per the agreement and Respondent’s demands.

It was the Respondent’s argument, that since the contract between the respective parties was entered into in writing, as shown in Exhibits P1-P6, then the tenor and terms of such a contract can only be read and known from the contents of the said documents. Reliance is placed upon Section 128 (1) (b) (c), (d), (e), (2), & (3) of the Evidence Act.

Contrariwise, however, the Appellant vehemently posited (paragraph 4.03 of the brief thereof) thus: 4-03. It is not in dispute my Lords, that there was an express agreement that regulated the transaction between the two parties, but this agreement was varied after the Appellant met with two officials of the Respondent as to the mode of payment of interest and penalty in the transaction under reference. This explains why the Respondent did not complain after the Appellant paid 11% interest on the investment and 2% penal the vide a business letter to the Respondent did not reply.

It was against the back-drop of the following scenario that warranted the Court below to hold (at 322 of the Record), rightly in my view that: In the facts relating to this appeal, there is no convincing evidence that there were verbal or oral negotiations to a written agreement between the parties. The fact the Appellant did not immediately request for the balance of the penalties calculated as per daily default does not amount to a waiver of the balance.

The Court below equally found and held at pages 323-324 of the Record: Consequently, the Appellant having succeeded on issue one, he is entitled to reliefs (i) and (ii) of his claim reproduced, inter alia at the commencement of this judgment. The Respondent, in its brief of argument was silent and did not contest reliefs (iii) (iv) and (v) of the Appellant’s claim. They are therefore denied admitted.

In the circumstances, the only surviving issue 1 ought to be, and it is hereby resolved against the Appellant.

Hence, against the backdrop of the determination of the surviving issue 1 against the Appellant, the appeal resultantly fails, and it is hereby dismissed by me.

The judgment of the Court of Appeal, Abuja Judicial Division delivered on 24/02/2015 in Appeal No. CA/A/673/2013, is hereby affirmed.

The Respondent shall be entitled to N1,000,000.00 as costs against the Appellant.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had the opportunity of reading in draft, the judgment of my learned brother IBRAHIM MOHAMMED MUSA SAULAWA, JSC, just delivered. I agree with the reasoning and conclusion that the appeal lacks merit.

I agree with His Lordship that Ground 1 is the only valid ground of appeal in the Appellant’s notice of appeal filed on 12/3/2015 found at pages 331-333 of the record, being a ground of law for which no leave is required. Ground 2 is a ground challenging the award of costs i.e. the exercise of discretion of the lower Court in affirming the award of costs by the trial Court. It is a ground of fact.

Ground 3, the omnibus ground of appeal, is also a ground of fact, which, pursuant to Section 233(3) of the 1999 Constitution, as amended, can only be filed with the prior leave of this Court or the Court below. In the absence of the requisite leave, the said grounds of appeal and the issues predicated thereon are incompetent and hereby struck out. The sole issue for determination in this appeal therefore, is issue 1 predicated on Ground 1, which challenges the finding of the Court below that the defence of estoppel by conduct did not avail the appellant in the circumstances of this case.

My learned brother has comprehensively considered and ably resolved this issue in the lead judgment. My comments are to show my support and for emphasis.

The parties are ad idem that the agreement between them was reduced into writing and embodied in Exhibits P1, P2, P3, P4, P5 and P6 respectively. The contention of the Appellant was that there was a subsequent oral agreement between them to the effect that a penalty of 2% daily interest, payable in the event of default by the Appellant, was annualized. In other words, that it was agreed orally that interest would be calculated per annum and not daily as provided for in the written agreements.

The Appellant was unbale to provide proof of the said oral agreement but relied on the defence of estoppel by conduct in contending that the Respondent had accepted payment of the penalty at the annualised rate and could therefore no longer insist on the daily rate.

The law of evidence is quite clear that a contract which is required by law to be in writing can only be varied by an agreement in writing.

See Section 128(1) of the Evidence Act, which provides: “128(1) When any judgment of any Court or any other judicial or official proceedings or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceedings or of the terms of such contract, grant or disposition of property, except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under this Act, nor may the contents of such document be contradicted altered added to or varied b oral evidence.” (Emphasis mine) ​Sub paragraphs (b) and (d) provide thus: “Provided that any of the following matters may be proved- (b) The existence of any separate oral agreement as to any matter on which a document is silent and which is not inconsistent with its terms, if from the circumstances of the case the Court infers that the parties did not intend the document to be a complete and final statement of the whole of the transaction between them. (d) The existence of any separate distinct subsequent oral agreement, to rescind or modify any such contract, grant or disposition of property.” The appellant failed to show that any of the exceptions to the general rule applied to the contact between the parties.

Sub-section (d) of Section 128(1) of the Evidence Act requires proof of a distinct subsequent oral agreement. The fact that the Respondent accepted the amount paid to it without more, cannot constitute proof of a subsequent oral agreement to vary the terms of their written contract.

​The parties, in their freedom to contract, are deemed to intend to be governed by the terms of their contract. They are not permitted to adduce oral evidence to establish terms extrinsic to and to vary the terms agreed upon. See: Atiba Iyalamu Savings & Loans Ltd. Vs Suberu & Anor (2018) 13 NWLR (Pt.1637) 387; (2018) LPELR-44069 (SC) @ 49-51 G-A; Larmie Vs Data Processing & Maintenance Services Ltd. (2005) 12 SC (Pt.1) 93; (2005) LPELR-1756 (SC) @ 17 B-C; Baker Marine (Nig) Ltd Vs Chevron Nig. Ltd. (2006) 13 NWLR (Pt.997) 276 @ 287-288.

​Furthermore, it is a settled principle of law that parties are bound by their agreements freely entered into and will not be permitted to resile therefrom. This is the essence of the doctrine of sanctity of contract. See: Babatunde & Anor Vs Bank of the North Ltd. & Ors (2011) LPELR-8249 (SC) @ 21 B-F; AG. Rivers State Vs A.G. Akwa Ibom State & Anor (2011) 3 SC 1; (2011) – 633 (SC) @ 22 E-F.

Where the terms of a contract are clearly expressed in a written document or documents, the Court cannot go outside those terms to ascertain the intention of the parties. See: Union Bank of Nigeria Plc Vs Ajabule & Anor. (2011) LPELR-8239 (SC) @ 39 C-9. The Court below was therefore correct when it held that the judgment of the learned trial Judge was based on speculation. For these and the more elaborate reasoning in the lead judgment, I join my learned brother in dismissing the appeal for lacking in merit.

The judgment of the Court below is hereby affirmed. I abide by the award of costs as contained in the lead judgment. Appeal dismissed.

JOHN INYANG OKORO, J.S.C.: I read in draft, the lead judgment of my learned brother, Ibrahim M. M. Saulawa, JSC just delivered. I agree that there is no merit in this appeal and deserves an order of dismissal. I adopt both the reasons and conclusions in the lead judgment as I have nothing new to add. I abide by all the consequential orders made in the lead judgment, that relating to costs, inclusive. Appeal Dismissed.

ABDU ABOKI, J.S.C.: I had the privilege of reading before now, the judgment written by my learned brother IBRAHIM MOHAMMED MUSA SAULAWA, JSC with whom I am in agreement with the reasons adduced and the conclusion contained thereat, that this appeal lacks merit and ought to be dismissed. My Noble Lord has quite admirably resolved the only surviving issue distilled for the determination of this appeal.

​I am in entire agreement with the reasoning and conclusion arrived at, by my learned brother IBRAHIM M. M. SAULAWA, JSC that this appeal is lacking in merit. The appeal is therefore dismissed by me.

I endorse the decision of the Court of Appeal, Abuja Division, delivered on 24/02/2015.

I abide by the consequential order(s) (if any) contained in the lead judgment, including the order as to cost. Appeal dismissed.

TIJJANI ABUBAKAR, J.S.C.: My Lord and learned brother, Ibrahim Mohammed Musa Saulawa, JSC granted me the privilege of having a preview of the comprehensive leading judgment prepared and rendered in this appeal.

​I am in total agreement with the lucid reasoning and conclusion and join in holding that the appeal is devoid of merit and deserves to be dismissed, it is hereby dismissed. I endorse all consequential orders including the order on costs.

Judgment

PETER OYINKENIMIEMI AFFEN, J.C.A. (Delivering the Leading Judgment): Introduction This appeal is an expression of the Appellant’s discontent with the judgment entered in favour of the Respondent by the High Court of Lagos State (coram: Olokoba, J.) on 29th April, 2015 in Suit No. LD/766/2009: Vitol Exploration Nigeria Limited v. LBD International Limited, which judgment lies at pp. 185 – 197 of the records.

The Appellant, LBD International Limited (“LBD”) and the Respondent, Vitol Exploration Nigeria Limited (“Vitol”) are oil exploration companies duly incorporated and organised under the Laws of Nigeria. Vitol alleged that it sold certain 9–5/8 and 13–3/8 well casings to LBD which failed, neglected or refused to pay for them despite repeated demands.

The well casings were jointly owned by both Vitol and Goland Petroleum Development Company Limited (“Goland”) at all material times, but Goland is said to have transferred to Vitol its title in the outstanding debt for the well casings under and by virtue of Dead of Discharge and Release dated 8/4/09. By a writ of summons issued out of the Registry of the High Court of Lagos State on 15/5/09, Vitol (as claimant) claimed the sum of $703.080.00 “being the agreed price for the well casings” against LBD (as defendant).

Vitol equally claimed prejudgment interest thereon calculated on the applicable LIBOR rate (as published on 19/10/07 when payment fell due) plus 3% calculated on a daily basis with effect from that date (i.e. 19/10/07) until judgment, as well as post-judgment interest of 15% per annum. LBD joined issues with Vitol vide a statement of defence, essentially denying the existence of any contract of sale of well casings and/or being indebted to Vitol in the sum claimed or at all.

At the close of plenary trial (whereat both parties fielded one witness apiece), judgment was entered in favour of Vitol against LBD as aforesaid. The Appellant (LBD) faults the judgment on four (4) grounds of appeal set out in the Amended Notice of Appeal filed on 14/10/20 but deemed properly filed and served on 3/3/22. In consonance with the practice and procedure for prosecuting and resisting civil appeals in this Court, the parties filed and exchanged briefs of arguments.

The Amended Appellant’s Brief of Argument (filed on 14/10/2020) as well as the Respondent’s Brief (filed on 28/2/22) were deemed properly filed and served on 3/3/22. The Appellant’s counsel was absent at the hearing of this appeal on 24/5/22 and the Appellant’s Amended Brief was deemed argued pursuant to Order 19 Rule 4 of the Court of Appeal Rules 2021, whilst Festus Onyia, Esq., of counsel for the Respondent (who appeared with C. J. Ndubuisi, Esq.) adopted the Respondent’s Brief in urging the Court to dismiss the appeal.

Issues for determination The three (3) issues distilled for determination in the Amended Appellant’s Brief of Argument, are: (a) Whether the Honourable Lower Court was right in law in making a case for the Respondent different from the case before the Court. (b) Whether there existed a valid contract of sale capable of binding the parties. (c) In the light of the provision Section 294(1) of the 1999 Constitution as amended, whether the judgment of the trial Court delivered well over three months can be considered valid and sustainable having regard to the circumstances of this case.

The Respondent (Vitol) adopted the issues distilled by the Appellant but with a slight modification to the first issue, namely: “Whether the Honourable Lower Court made a case for the Respondent different from the case before the Court”. It cannot escape notice that the couching or phraseology of the Appellant’s first issue is conclusory and takes for granted that the lower Court has already been adjudged to have made a different case from what was pleaded, which is a conclusion that can only be reached at the end of the present endeavour.

An issue for determination ought not be framed as a conclusory allegation; rather, it is meant to simply narrow down the relevant point(s) in issue by succinctly and clearly projecting the substance of the complaint requiring resolution by a Court or Tribunal. See CHIEF ITSEGHOSIMHE & ORS v CHIEF OGBETA & ORS [2002] FWLR (PT. 88) 862 at 868. It seems to me that the modification introduced by the Respondent (which projects the first issue in a neutral light) is perfectly in order. I accordingly adopt the issues distilled by the Appellant as modified by the Respondent in determining this appeal.

For reasons that are obvious, we shall grapple first with issue 3 before proceeding to consider issues 1 and 2 which are intertwined, if at all. Appellant’s submission on issue 3 The Appellant (LBD) called attention to the fact that final addresses were adopted on 8/10/13 but judgment was not delivered until almost two years later on 29th April, 2015, which is outside the 90 days stipulated in S. 294 (1) of 1999 Constitution, and insisted that miscarriage of justice was thereby occasioned and the judgment is liable to be set aside on that score.

Citing ELIAS v FRN & ANOR (2016) LPELR-40797, MORENIKE and IDOWU & ORS v SEGUN KOYA INVESTMENTS LIMITED (2017) LPELR-43580(CA), LBD contended that the delay in delivering judgment adversely affected the perception, appreciation and evaluation of evidence by the learned trial judge and it suffered a great miscarriage of justice as it can be easily seen that the learned trial Judge virtually forgot everything that transpired during trial and lost the impressions made on him by witnesses, that the trial proceedings were supposedly recorded electronically (as indicated in Pp. 176 and 178 of the Records of Appeal) but the time lapse between conclusion of trial and delivery of judgment apparently affected the availability of those electrical recordings and no transcript of the recordings was available for compilation in the records, which shows that the learned trial judge lacked the opportunity of appreciating evidence elicited from CW1 under cross-examination to the effect that the only contract between the parties was the one for the use and return of well casings and that the lower Court was also denied the opportunity of relying on all evidence, admissions and testimonies, both oral and written before it, hence no reference was made to the trial in the judgment.

LBD further contended that entering judgment in favour of Vitol when the pleadings (particularly para. 5 of the statement of claim) and evidence adduced before the Court show that the sums claimed included consideration for a lease already adjudged to have been performed and discharged, is a function of loss of memory attributable to undue delay in delivering judgment as the Court had lost all account of facts placed before it at trial and thereby occasioned a miscarriage of justice. This Court has been urged to set aside the judgment on this score.

Respondent’s submission on Issue 3 Vitol countered that the delivery of judgment outside the prescribed 3-month period did not affect the validity of the judgment or render it a nullity, insisting that LBD has not shown that it suffered any miscarriage of justice thereby, placing reliance on S. 294(5) CFRN and the case of AKOMA & ANOR v OSENWOKWU & ORS (2014) LPELR-22885(SC) 1 at 41.

Vitol argued that even though the case was commenced by writ of summons and the parties exchanged pleadings and called witnesses, it is evident on the face of the judgment that the decision was based solely on construction of documentary evidence rather than evaluation of oral evidence or demeanour of witness; that the oral testimony of witnesses neither added to nor subtracted from the documents pleaded and relied upon, citing A.C.B. LTD v AJUGWO [2012] 6 NWLR (PT. 1295) 97 at 126 – 127 (CA) and EGBO v AGBARA [1997] 1 NWLR (PT. 481) 293 at 316 – 317 – per Iguh, JSC.

The Court was urged to affirm the validity of the judgment and resolve this issue in favour of Vitol against LBD.

Resolution of Issue 3 Issue 3 interrogates the validity of the judgment of the lower Court, which was delivered outside the period prescribed in S. 294(1) of the Constitution of the Federal Republic of Nigeria 1999 (“CFRN”). The imperative for every Court of law established under the Constitution to render its decision “not later than ninety days of conclusion of evidence and final addresses” has agitated and has been agitated in our Courts from time to time, and there is no paucity of dicta in this aspect of our adjectival law.

The Constitution provides in s. 294(1) that: “Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof”; and in S. 294(5) that: “The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof”.

The above constitutional provision is clear as crystal and admits of no ambiguity, but it is needful to underscore two crucial points. The first is that even though S. 294(1) talks about delivery of judgment “not later than ninety days after conclusion of evidence and final addresses”, computation of time does not begin from the date of conclusion of evidence per se, but from the date of adoption of final addresses which often takes several weeks, if not months, after conclusion of evidence as provided in the various rules of Court.

And the second point is that whereas S. 294(1) CFRN enjoins every Court established under the Constitution to deliver its decisions not later that 90 days of conclusion of evidence and final addresses, Subsection 5 attenuates the strictness of Subsection 1, as it were, by recognising “miscarriage of justice by reason thereof” as the sole basis for nullifying a judgment delivered outside 90 days. The rationale for this is obvious.

The initial incarnation of this provision in S. 258(1) of the 1979 Constitution (prior to the amendment introduced by the Constitution (Suspension and Modification) Act No. 17 of 1985) worked untold hardship on litigants and the Court system in general as judgments were nullified merely on account of non-delivery “within 3 months” even though it was not demonstrated that any miscarriage of justice was occasioned thereby.

Cases such as IFEZUE v MBADUGHA (1984) 5 SC 79, ODI v OSAFILE [1985] 1 NWLR (PT 1) 17, SODIPO v LEMINKAINEM OY [1985] 2 NWLR (PT 8) 547 and OJOKOLOBO v ALAMU [1987] 3 NWLR (PT 61) 377 readily come to mind. Miscarriage of justice entails failure of justice; justice not dispensed in consonance with the law; a mockery or caricature of the very object for which Courts of justice are constituted in the first place.

In GBADAMOSI v DAIRO [2007] 3 NWLR (PT 1021) 282 at 306, Niki Tobi, JSC characterised miscarriage of justice as a “decision or outcome of legal proceedings that is prejudicial or inconsistent with the substantiated rights of the party… a reasonable probability of a more favourable outcome of the case for the party alleging it … injustice done to the party alleging it”. See also AIGBOBAHI v AIFUWA [2006] 6 NWLR (PT. 976) 270 at 290 and OJO v ANIBERE (2004) 5 SC (PT. 1) 1 at 7.

It is justice misapplied, mis-appreciated or misappropriated; ill conduct on the part of the Court which amounts to injustice. See PAM & ANOR v MOHAMMED (2008) LPELR-2895(SC) and ONAGORUWA v STATE [1993] 7 NWLR (PT 303) 49. It is instructive however that it is not every infraction in the proceedings that occasions miscarriage of justice: what fits the bill are grave or serious errors in the proceedings that render the proceedings fundamentally flawed. See NWAKWOALA v F. R. N. (2018) LPELR-43891(SC).

An allegation that miscarriage of justice was occasioned by the failure or neglect of a Court of trial to deliver its judgment within 90 days is a very serious one that ought not to be lightly made, a rather weighty burden is imposed on the alleger to produce convincing, tangible and credible evidence demonstrating that he actually suffered a miscarriage of justice.

In the context of S. 294(1) and (5) CFRN, binding case law donates the proposition that there must be concrete evidence of failure of justice directly traceable to the very fact of non-delivery of decision within the constitutionally stipulated period of 90 days before any such decision can be declared a nullity on that score. See AKPAN v UMOH [1999] 11 NWLR (PT. 627) 349.

A miscarriage of justice contemplated by S. 294(1) must be tangible and clear on the face of the proceedings [See OYEGOKE v IRIGUNA [2001] ALL FWLR (PT 75) 448 at 462 – 463], even as the emphasis is not on the length of time per se, but on the effect the delay produced in the mind of the trial judge. See DIBIAMAKA v OSAKWE [1989] 3 NWLR (PT. 107) 101. The records in the case at hand reveal (at Pp. 177 – 189) that trial was concluded on 26/6/13 whilst final written addresses were adopted on 8/10/13, whereupon the learned trial judge reserved judgment till 18/10/13.

But judgment was not delivered on the scheduled date and nothing was heard about the case until 30/4/15 when the parties re-adopted their final addresses and the judgment (dated and signed on 29/4/15) was delivered. The point has already been made that for purposes of S. 294(1) CFRN 1999, time is computed not from the date of conclusion of evidence but from the date of adoption of final addresses.

What this means is that the judgment sought to be set aside was delivered one year, six months and 22 days after the adoption of final addresses on 8/10/13, whereas the stipulated 90 days expired on 6th January, 2014. That is to say, the lower Court overshot the constitutional time limit for delivering judgments by about one year, three months and 22 days! There is therefore no gainsaying that the lower Court contravened S. 294(1) CFRN when it delivered the judgment appealed against on 30/4/15.

Such inordinate delay in delivering judgment certainly does not project an appropriate judicial attitude or conduct and defeats the policy rationale and intent behind S. 294(1) CFRN, which is to curtail the invidious practice of some trial Court judges who reserve judgments for such long periods as to lose the advantage of having seen and observed the demeanour of witnesses for the purpose of assessing their credibility, leading to the setting aside of such judgments and remitting the cases for retrial.

See KAKARAH v IMONIKHE (1974) 4 SC 151 and EKERI & ANOR v KIMISEDE & ORS (1976) 9 – 10 SC 61. As stated hereinbefore, the re-adoption of final addresses on 30/4/15 heralded the eventual delivery of the judgment outside the 90-day period stipulated in S. 294(1) CFRN. This betrays a misconception that the constitutional time limit for delivering judgments can be prolonged by inviting parties to readopt final addresses.

But the practice of inviting counsel to re-adopt final addresses (as was done in this case) has been characterised as a facade and “mere window-dressing designed to circumvent the stipulations of Section 294(5) of the Constitution”. See OLUSANYA v UBA PLC (2017) LPELR-42348(CA).

As the Supreme Court (per Nnamani JSC) admonished in AWOYALE v OGUNBIYI (1985) LPELR-661(SC): “…[I]f a suit set down for judgment after final address is to be reopened such that the 3 months deadline will start to run, such a reopening must be … to enable the Court take, in the interest of justice, important points of law and facts relating to the case … [but] not [merely] to achieve a prolongation of the 3 months period”.

The re-adoption of final addresses was therefore a futile exercise that did not succeed in curing the lower Court’s inexcusable non-compliance with the emphatic dictates of S. 294(1) CFRN. Be that at it may, the matter does not end there. As stated hereinbefore, S. 294(5) CFRN tampers the strictness of S. 294(1) and creates a leeway that saves judgments from being nullified merely on account of non-delivery within 90 days insofar as no miscarriage of justice has been occasioned. That is the scenario here.

It does not seem to me that LBD has demonstrated any tangible basis for alleging miscarriage of justice.

What appears in bold relief is that the findings of fact and eventual decision of the lower Court as contained in the judgment appealed against are not founded on testimonial evidence of witnesses or their demeanour, but on the construction of documents exchanged between the parties, notably Vitol’s letter of 20/8/07 titled Re: Vitol Casing, Goland’s letter of 19/9/07 titled Re: Offer for tubulars, LBD’s email of 27/11/07 and letter of 3/12/07, as well as various invoices and demand letters. ​A trial judge is a peculiar adjudicator upon whom the heaviest burden of trial lies.

Perception and evaluation of evidence are his forte. He has the exclusive advantage of listening to and watching witnesses testify: his feelings and impressions are tested from time to time upon one issue or another as he takes mental note of the performance and demeanour of witnesses in the witness box, and in particular how they react to questions and the answers they give, which help him decide who and what to believe. See RAB OIL NIGERIA LIMITED & ANOR v MR SIKIRU OLUWAFEMI OBILEYE & ORS (2021) LPELR-53467(CA) 1 at 36 – 38 – per Ogakwu JCA.

However, so much of the demeanour of a witness may not quite matter when there are relevant documents that serve as touchstone against which oral testimony of witnesses can be tested. See OLUJINLE v ADEAGBO [1988] 2 NWLR (PT 75) 238 at 254. In a case such as the present where the available evidence is essentially or predominantly documentary, it can scarcely be said that the trial judge lost track of evidence adduced before him or otherwise failed to make good use of the advantage of seeing and observing the demeanour of witnesses.

See CHIEF JUSTUS UDUEDO AKPOR v IGUORIGUO & ORS (1978) SC 115 at 128. It is not in all cases that the demeanour of a witness is relevant to the enquiry before the Court, and the fact that the learned trial judge did not mention the demeanour of witnesses clearly shows that the judgment did not turn on believability or non-believability of the testimony of witnesses. As stated hereinbefore, the emphasis is on the effect the delay produced in the mind of the trial judge and not merely the length of the delay per se. See DIBIAMAKA v OSAKWE supra.

Quite clearly, the Appellant has not demonstrated on the face of the proceedings that it suffered any miscarriage of justice by reason of non-delivery of judgment within 90 days so as to warrant setting aside the judgment on appeal or declaring it as a nullity. Issue 3 will be and is hereby resolved against the Appellant (LBD). Issues 1 and 2 Let us shift attention presently to Issues 1 and 2 which, as stated hereinbefore, are interrelated and will be considered together.

Issue 1 condescends on “Whether the Honourable lower Court made a case for the Respondent different from the case before the Court”, whilst Issue 2 borders on “Whether there existed a valid contract of sale capable of binding the parties”. Appellant’s submission on issues 1 and 2 Calling in aid COMMISSIONER FOR WORKS, BENUE STATE v DEVCON CONSTRUCTION CO.

LTD [1988] 3 NWLR (PT 83) 407 at 420, NWOKORO v ONUMA [1990] 3 NWLR (Pt. 136) 22 at 33, AMACHREE & ANOR v THE SPDC NIGERIA LTD (2011) LPELR-4474(CA) 1 at 32 and AMASIKE v REGISTRAR-GENERAL, CORPORATE AFFAIRS COMMISSION & ANOR (2005) LPELR-5407(CA), the Appellant (LBD) contends that whereas it is a fundamental principle for determination of disputes that a judgment must be confined to the issues raised by the parties, and the Court cannot suo motu formulate a case for either or both parties, the lower Court went on a voyage of its own in determining whether there was a separate contract of sale between the parties arising from negotiations and correspondence exchanged between them, and based its judgment thereon.

LBD maintained that the case pleaded by Vitol (in paras. 4 and 5 of the statement of claim at p. 3 of the records) was that it leased well casings to LBD for a rental fee by a letter dated 20/8/07 and that upon LBD’s failure to pay the rental fee, the lease agreement was converted to an outright sale by mutual agreement, with the sales price marked up to include unpaid rental fee; that Vitol equally urged the lower Court in its final address (at p. 147 of the records) to decide whether there was evidence of a contract to convert the initial lease agreement to a contract for sale, and if so, whether LBD breached such converted contract of sale; and that after deciding the case brought by the parties and rightly holding that there was no lease agreement that was subsequently converted into an outright sale as alleged by Vitol, the lower Court surprisingly proceeded to formulate/determine a case different from that presented before it.

LBD argued that having already determined the issues placed before it, the lower Court had no further reason to embark on such foray of determining whether the letter of 19/9/07 and other correspondence exchanged amounted to a new contract between the parties. LBD relied on GILSOD ASSOCIATES LTD v A.L.G.O.N(2011) 21 WRN 37 at 58 – 59 (on the essential requirements of a valid contract), MINI LODGE LTD v NGEI [2010] 10 WRN 58 at 89 (on the ingredients of a contract of sale) and U. B. A.

PLC v JARGABA [2007] 43 WRN 1 SC 22 (on the proposition that facts admitted need no further proof) and submitted that Vitol’s sole witness (CW1) admitted under cross-examination that the only contract entered into by the parties was solely for the use and return of 4,500 feet of 13 – 3/8 inches well casings and nothing more; that the clear and definite agreement of 20/8/07 did not envisage or provide for variation of its terms and no extrinsic meaning should be read into it; and that it is evident from the letters/emails exchanged (notably Exhibit P10, P13 and P14) that the parties were negotiating a new contract that would have included Goland as a party, citing Black’s Law Dictionary, 9th ed., (on what constitutes negotiation) as well as CHUKWUMA v IFALOYE [2009] 10 WRN 1 at 39 and DALEK NIG.

LTD v OMPADEC [2007] 24 WRN 1 at 14-15 (on the proposition that negotiation however protracted cannot and does not on its own constitute a contract). ​The further contention of LBD is that the lower Court misdirected itself in holding that LBD did not deny its indebtedness during the course of exchange of emails, insisting that LBD did not also acknowledge any such indebtedness and it is erroneous to construe the email of 5/1/09 as an admission of indebtedness when the amount supposedly admitted is ambiguous, insisting that LBD’s plea for time “to our mutual benefit” was part of the negotiation process;

and that the invoices in Exhibits P10, P13, P14 as well as that of 11/6/08 had different content and conflicting sums said to be payable by LBD and it is not the duty of the Court to pick and choose which evidence out of the lot advanced by a party to prove his case, citingMINI LODGE LTD v NGEI [2010] 10 WRN 58 at 78 – per Tabai, JSC and ONUBOGU v STATE (1974) 9 SC 1, that the lower Court erred in holding that LBD accepted the offer of 19/9/07 by email of 27/11/07 when a material term of the offer was that “payment should be made within 30 days”, placing reliance on WARNER & WARNER INT’L ASSOCIATES LTD v FEDERAL HOUSING AUTHORITY [1993] 6 NWLR (PT. 297) 148 (on the proposition that time becomes of essence once time of performance is stipulated in a contract).

LBD further relied on M.O. KANU SONS & CO. LTD v FIRST BANK OF NIG. PLC ​(2006) 5 SC (PT III) 80 in support of the proposition that an offer may only be accepted in the manner and on the terms attached to it, and maintained that the email of 27/11/2007 which stated that “LBD would like to delay the payment” as well as proposed payment of interest at LIBOR rate was not an acceptance of Vitol’s offer of 19/9/07 but a counter offer since it introduced terms not contained in or contemplated by the offer, citing BEST (NIG) LTD VS.

BLACKWOOD HODGE (NIG) LTD (2011) LPELR-776 (SC); that the lower Court erred in entering judgment for the total sum claimed by Vitol when the pleadings (in para. 5 of the statement of claim) and evidence adduced show that the said sum included unpaid rentals for a lease already adjudged to have been performed and discharged; and that there was no evidence before the lower Court showing that LBD received any 9-5/8 well casings (being the second item that was being negotiated) and/or that Vitol had performed the purported independent agreement or otherwise altered its position so as to be entitled to payment of some sort.

The Court was urged to resolve issues 1 and 2 in favour of LBD and set aside the decision of the lower Court. Respondent’s submission on issues 1 and 2 The Respondent (Vitol) submitted that LBD’s contention that the lower Court made or formulated a case different from the one presented before it is misconceived and ought to be rejected.

Whilst conceding the averments in paragraphs 4 and 5 of its statement of claim (copied at pp 4 – 8 of the records) relating to the prior lease agreement that was converted into an outright sale of the well casings and that unpaid lease rental fees [allegedly] due and owing by LBD were factored into the sales price, Vitol maintained that what is crucial is that the existence of a separate contract for the sale of well casings, which is contractually severable from the prior lease agreement, was clearly pleaded and established;

that it is equally significant that relief (i) was for the ”sum of US$ 703,080.00 being the agreed price for the well casings which the claimants sold to the defendant”, but not for the lease agreement and that the principal issue before the lower Court was whether there existed between the parties a valid contract for sale of the well casings, and the fact that the lower Court found that the contract of sale was not a product of conversion from the initial arrangement between the parties but a separate agreement did not amount to making a different case from the one pleaded before the Court, insisting that the authorities relied upon by LBD are wholly inapplicable.

Placing reliance on TSOKWA MOTORS NIG LTD & ANOR v UNION BANK OF NIG. LTD. (1996) LPELR-3267 (SC), OMEGA BANK (NIG) PLC v O. B. C. LTD (2005) LPELR-2636 (SC) and EL SALEM (NIG) LTD v ODEH & ANOR (2018) LPELR-44450 (CA) PP. 23-24 on the ingredients of a valid contract, Vitol maintained that there was overwhelming documentary evidence showing the existence of a valid contract between the parties for sale/purchase of well casings including, notably, Exhibit P1 page 10 (i.e.

Vitol’s letter of 19/9/07 titled “RE: OFFER OF TUBULARS”), which was accepted vide LBD’s email of 27/11/07 and letter dated 3/12/07 as rightly found by the lower Court. In Vitol’s estimation, subsequent emails exchanged between the parties which concretised the contract of sale over and beyond mere negotiation.

It was argued that the lower Court rightly rejected LBD’s contention that the letter of 3/12/07 was a counter offer and that a contract may emerge from series of correspondence exchanged between two (or more) persons insofar as it is apparent that the parties have come to an agreement when the correspondence are read together as in the instant case, citing NNEJI v ZAKHEM CONST. (NIG) LTD [2006] NWLR (PT 994) 297 at 311 – 312 and SHELL B. P. PETROLEUM DEVELOPMENT COMPANY v JAMMAL ENGINEERING (NIG) LTD (1974) 4 SC 33 at 72.

The further submission of Vitol is that having not appealed against the lower Court’s finding that it admitted being indebted to Vitol, LBD cannot contend on appeal that the amount of indebtedness admitted by it was ambiguous, citing EZIKE & ANOR v EGBUABA (2019) LPELR-46526 (SC) 1 at 13, AWOTE & ORS v OWODUNNI & ANOR (1986) LPELR-660 (SC) and SKYE BANK & ANOR v AKINPELU (2010) LPELR-3073 (SC) 1 at 34 – 35 on the proposition that a finding not challenged by way of appeal stands and that the transaction for use and return of 4,500 feet of 13- 3/8 well casings was not the only contract between the parties.

This Court has been urged not to disturb the findings and eventual decision of the lower Court, and resolve issues one and two in favour of the Respondent (Vitol). Resolution of issues 1 and 2 The foregoing are the arguments put forward by the parties in respect of Grounds 1 and 2. It is merely restating the obvious that pleadings occupy a preeminent position and pride of place in the schema of adversarial proceedings initiated by writ of summons, they serve the purpose of procedural fairness. See BANQUE COMMERCIALE v AKHIL HOLDINGS (1990) CLR 279 at 286.

They equally delineate or delimit the canvass and forensic contours of a civil suit and thereby eliminate the springing of surprise on the adversary. Hence, pleadings are forcefully binding on the parties as well as the Court. See GEORGE & ORS v DOMINION FLOUR MILLS LTD (1963) 1 ALL NLR 71, NIPC v THE THOMPSON ORGANISATION LTD & ORS (1969) NMLR 99, AMIDA & ORS v OSHOBOJA (1984) 7 S.C. 68 at 107 –per Aniagolu JSC and OVERSEAS CONSTRUCTION LIMITED v CREEK ENTERPRISES LIMITED [1985] 3 NWLR (PT. 13) 407 at 419 – per Oputa JSC.

It is imperative that pleadings (which are meant primarily to let parties know each other’s case) should be sufficient, comprehensive and accurate. JAMES v MID MOTORS LIMITED (1978) 11-12 SC 31.

Averments in pleadings [which are usually set out seriatim in numbered paragraphs] must not be read disjunctively but in conjunction with the totality of the paragraphs taken as a whole in order that the facts averred may be properly ascertained. See PAN ASIAN AFRICAN CO. LTD v NATIONAL INSURANCE CO (NIG) LTD (1982) 9 SC 1 at 48 and TITILOYE v OLUPO [1991] 7 NWLR (PT. 205) 519 at 532.

It is by reading the paragraphs conjunctively that the true direction or drift of the averments can be discovered, as subsequent paragraphs of the pleadings may provide the missing link or make clear any amphiboly or vagueness of an earlier paragraph standing alone. In order to resolve the controversy on the case put forward in the pleadings and whether the lower Court made a different case for Vitol, our recourse is to the statement of claim (copied at Pp. 3 – 6 of the records). I consider paragraphs 4, 5, 6 and 7 relevant to the enquiry and it is needful to reproduce them hereunder: “4.

The Claimant states that by a lease agreement entered into between the Claimant and Goland (of one part) and the Defendant (of the other part) the Defendant initially leased from the Claimant and Goland 9 – 5/8” Tubulars (Well Casing), and later leased from the Claimant and Goland an additional 4500 (four thousand and five hundred) feet of 13 – 3/8” well casing. The Claimant pleads and shall at the trial of this suit rely on letter agreement dated 20th August, 2007 evidencing the transaction, including all the relevant documents relating to the contract. 5.

The Defendant failed, refused and/or neglected to pay to the Claimant and Goland the lease rental fees as agreed by the parties and thereafter, the parties mutually agreed to convert the loan agreement into an outright sale of the well casings to the Defendant with a condition that the offer prices for the sale would be marked up to include the unpaid loan fees due and payable to the Claimant from the Defendant. The Claimant and Goland therefore issued an offer letter dated 19th September, 2007 by which it offered to sale the well casing to the Defendant, as agreed.

The said offer letter also doubles as an invoice to the Defendant and required the Defendant to pay for the well casings within 30 days of the date of the offer letter. 6.

By the said letter dated 19th September, 2007, the Claimant and Goland offered to sell to the Defendant 4500 (four thousand, five hundred) quantities of 13-3/8″ well casings at a cost of $67.30 per quantity totalling $302,850.00 and 12,000 (twelve thousand) quantities of 9-5/8″ well casings at a cost of $48 per quantity totalling $576,000.00, less 20% discount which brought the total sum payable by the Defendant on the offer to $703,080.00. 7.

The Claimant states that it was a term of the offer that payment for the well casing was to be made within 30 days but notwithstanding the Defendant’s acceptance of the offer vide its email of 27th November, 2007, the Defendant failed to pay the purchase price of $703,080.00 (Seven hundred and three United States Dollars and eighty Cents) either within the stipulated 30 (thirty) days or at all, and the said amount has remained outstanding. The Claimant pleads and shall rely on the Defendant’s email dated 27th November, 2007 at the trial of this suit. 8.

The Claimant further avers that when the Defendant defaulted to pay to it the sum of $703,080.00 (Seven hundred and three United States Dollars and eighty Cents) as agreed, the Defendant by its letter dated 3rd December, 2007 agreed that it shall pay interest on the said amount calculated based on the London Inter Bank Offered Rate (LIBOR) as published on the day payment is due being 19th October, 2007 plus 3% calculated on a daily basis until the debt is liquidated or payment is received by the Claimant.

The Claimant hereby pleads and at the trial of this suit will rely on the Defendant’s letter dated 3rd December, 2007.” ​ As can be gleaned from the foregoing, the case before the lower Court was that LBD leased 9 – 5/8 Tubulars (well casings) as well as an additional 4,500 feet of 13 – 3/8 well casings from both Vitol and Goland, which transaction was evidenced by a letter agreement dated 20/7/07 and that upon LBD’s failure, neglect or refusal to pay the agreed lease rental fee, the lease was converted into an outright sale by mutual agreement on the condition that the sale/purchase price would be marked up to include the unpaid lease rental fee, whereupon the well casings were offered for sale to LBD at a total sum of $703,080.00 vide a letter dated 19/9/07 (which doubled as an invoice).

It was further averred that a term of the offer was that payment would be made within 30 days thereof and LBD accepted the offer by an email dated 27/11/07 but failed or neglected to pay for the well casings either within the said 30 days or at all and that by a letter dated 3/12/07, LBD agreed to pay interest on the sum of $703,080.00 calculated on a daily basis at the London Inter Bank Offer Rate (LIBOR) as published on 19/9/07 when payment fell due plus 3% calculated on a daily basis until the debt is liquidated or payment is received by Vitol.

Now, contrary to what was pleaded by Vitol, the lower Court evaluated the documentary and testimonial evidence before it and came to the conclusion that the letter agreement dated 20/7/07 was not a lease agreement for which any lease rental fees were due and owing by LBD. The lower Court held emphatically at p. 190 of the records: “Clearly therefore, there is internal evidence in Exhibit P1 Pp. 8 & 9 i.e. the letter dated 20th day of August, 2007 of offer, acceptance and consideration. It represents a complete contract.

I therefore do not believe the averment both in the statement of claim and the evidence of the sole witness for the claimant to the effect that the well casings were leased to the defendant at an agreed price which the defendant failed to pay and which price was subsequently incorporated within the sale agreement of the well casings between the parties. There was no lease agreement. All that existed in accordance with the agreement was “a use and return agreement”, the consideration of which was $1 which had been agreed to have been paid.

A careful perusal of Exhibit P1 Pp. 8 & 9 BP would show clearly that it relates to only 4,500 feet of 13–3/8 casings. It contains nothing about 9–5/8 inch casings. Again, a careful study of all the correspondence subsequent to pages 8 & 9 of Exhibit P1 cannot but reveal a glaring absence of any reference to Exhibit P1 Pp. 8 & 9. The inference from all the above is that when the offer contained in Exhibit … page 10 was made on 19 September, 2007, the contract evidenced by Exhibit P1 Pp. 8 & 9 was not in contemplation.

I am therefore of the firm view that Exhibit P1 Pp. 8 & 9 was a separate contract between the parties and it was executed separately for its own purposes. It was not subsequently converted to anything else…” (emphasis supplied).

Having firmly found that there was no lease agreement between the parties that was subsequently converted to a sale agreement, and thereby rejected the averment in the statement of claim and disbelieved the testimonial evidence of Vitol’s sole witness (CW1), the factual basis upon which the lower Court proceeded to hold that there was a separate contract of sale of well casings for which LBD was liable to Vitol is difficult think through.

What appeared in bold relief in the pleadings is that Vitol tied the contract of sale to a prior lease agreement which the lower Court found to be non-existent. It therefore seems to me that in holding that the contract for sale of well casings was separate and distinct, which is contrary to the clear and unequivocal averment in the statement of claim that a lease agreement was converted into a sales agreement, the lower Court clearly made a different case from the one presented by Vitol.

It is hardly necessary to state that the facts of a case belong to parties. Not the Court. Being owner of the facts, the parties are more conversant with their property than the Court, which is merely a neutral arbiter.

Thus, where a party (in this case, the claimant) gives an account of his relationship with the adverse party in the pleadings and leads evidence in accordance with the pleadings, the Court is certainly not at liberty to say that it disbelieved the claimant’s pleadings and evidence and yet proceed to enter judgment for the claimant on the basis that documents tendered in evidence established a separate contract other than as pleaded.

The point to underscore is that a Court ought to remind itself at all times of the well-known principle that it is bound by the pleadings filed and exchanged in the proceedings by the parties. It is not part of the Court’s duties or functions to enter upon an enquiry in the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. To do otherwise would be to act contrary to the Court’s own character and nature.

See UDENGWU v UZUEGBU [2003] 13 NWLR (PT 836) 136 at 156 and AFRICAN CONTINENTAL SEAWAYS LIMITED v NIGERIAN DREDGING ROADS AND GENERAL WORKS LTD (1977) 5 SC 235. It is forcefully agitated on behalf of Vitol that the averments concerning the lease agreement (which the lower Court found to be non-existent) are severable from the averments relating to the subsequent contract for sale of well casings.

There is no gainsaying that the rules of pleading, in an appropriate case, permit a pleader who has pleaded more than he strictly need have done to disregard the unnecessary or surplus averments and rely simply on the more limited ones. See ARAB BANK v ROSSI [1952] Q.B.D. 216 at 229 – per Lord Denning, M.R. and NDOMA-EGBA v AFRICAN CONTINENTAL BANK PLC [2005] 10 MJSC 93 at 97. However, it does not seem to me this is such a case in which the pleadings can be severed.

Judging by the averments in the statement of claim (as reproduced above), the alleged sale transaction cannot be said to be separate from or independent of the lease agreement which the lower adjudged to be non-existent. It is averred that Vitol and Galand offered to sell the well casings to the Appellant on the condition that the “offer prices for the sale would be marked up to include the unpaid loan fees due and payable to the claimant from the defendant”.

What this means is that the sum of $703,080.00 claimed by Vitol necessarily includes alleged outstanding lease rental fees owed by LBD which were factored into the offer price stated in the offer letter dated 19/9/07, which doubled as invoice. But if there were no unpaid lease rental fees with which the offer price was marked up (as pleaded by Vitol), then it remains to be seen how sum of $703,080.00 claimed in this suit was arrived at.

It is therefore obvious that the averments in the pleadings relating to the lease agreement and unpaid lease rental fees are intricately intertwined and cannot be severed from the alleged sale of the well casings. The judgment of the lower Court seems to me patently problematic even at a foundational level. The offer letter of 19/9/07 copied at P. 23 of the records (which doubled as an invoice) was made on the condition that “payment should be made within 30 days”. The obvious implication of this condition is that time was of the essence.

Acceptance of the offer as well as payment must be made within 30 days i.e. on or before 19/10/07. But LBD’s email of 27/11/07 and letter of 3/12/07 (which the lower Court treated as valid acceptance of the offer) were clearly outside the 30 days prescribed in the offer letter dated 19/9/07. The question tugging vigorously at the back of my mind is whether the offer dated 19/9/07 (which required payment to be made within 30 days) could still have been accepted on 27/11/09 or 3/12/07? I would hate to think so.

It is hornbook law that an offer can only be accepted in the manner and on the terms attached to it: M. O. KANU SONS & CO LTD v FIRST BANK OF NIGERIA PLC supra. Where the offeror stipulates a specific deadline for acceptance of an offer, the offeree cannot validly accept the offer outside the deadline.

The simple test is whether the purported acceptance by LBD (offeree) on 27/11/07 or 3/12/07 would have been binding on Vitol/Goland (offerors) if they had either sold the well casings to a third party or were otherwise unwilling to sell to LBD after the 30 days stipulated in the letter of 19/9/07 when payment was required to be made? The answer is an emphatic, unhesitating negative. The offer of 19/9/07 lapsed after the expiration of 30 days and was no longer available for acceptance when LBD wrote the email and letter on 27/11/07 and 3/12/07 respectively.

This being so, the inevitable conclusion to which I must come is that correspondence exchanged after the expiration of the offer dated 19/9/07 merely point to continuing negotiations between the parties which did not crystalise into any binding and enforceable agreement; and the lower Court got it amiss when it held that there was a valid contract for sale of well casings between the parties. Issues 1 and 2 are resolved in favour of the Appellant (LBD) against the Respondent (Vitol). Conclusion This is an appropriate juncture to berth the ship of this judgment securely at the quays.

Issue 3 was resolved in favour of the Respondent, whilst issues 1 and 2 went in favour of the Appellant. Notwithstanding that non-delivery of judgment within the 90-day period stipulated in S. 294(1) CFRN per se did not occasion miscarriage of justice as I have held, the lower Court not only made a different case for the Respondent but also faltered in holding that a valid contract of sale was consummated between the parties in the peculiar facts and circumstances that came to light in these proceedings. This appeal succeeds and is accordingly allowed.

The judgment of the High Court of Lagos State dated 29/4/15 (but actually delivered on 30/4/15) will be and is hereby set aside. There shall be no order as to costs.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse, in draft, the erudite leading judgment delivered by my learned brother: Peter Oyinkenimiemi Affen, JCA. I endorse in toto the judicial reasoning and conclusion in it. I too allow the appeal in the manner ordained in the leading judgment. I abide by the consequential orders decreed therein.

ONYEKACHI AJA OTISI, J.C.A.: My learned brother, Peter Oyinkenimiemi Affen, JCA, made available to me a copy of the judgment, in draft form, in which this appeal was allowed. The issues distilled for resolution of this appeal have been ably addressed by my learned brother, and I agree with the conclusions reached. I will only emphasize few points. ​Pleadings in any matter is fundamental. Civil litigation is fought on pleadings. They are the pillars upon which a party’s case is founded. Oshoboja v. Amuda & Ors (1992) LPELR-2804(SC), Falke v.

Billiri Local Government Council & Ors (2016) LPELR-40772(CA), Ogbere & Anor v. Ukpo (2021) LPELR-56390(CA).

A Court is bound to consider only issues raised on the pleadings before it. It is not competent for the Judge suo motu to make a case for either or both of the parties and then proceed to give judgment on the case so formulated, contrary to the case of the parties before him. Commissioner for Works Benue State & Anor v Devcon Development Consultants Ltd & Anor (1988) LPELR-884(SC), Nnaji v. Madaki & Anor (2012) LPELR-20097(CA). A Court therefore has no vires, in its adjudication, to venture outside the parameters of the pleadings to make out a case different from what parties have presented.

When the trial Court falters in this regard, its decision is liable to be set aside. ​ For this reason, and for the more comprehensive reasons given in the leading Judgment, I also allow this appeal and abide by the orders made therein.

Judgment

DANLAMI ZAMA SENCHI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of the Federal Capital Territory, Abuja in Suit No. FCT/HC/CV/1499/2014 delivered on the 17th day of December, 2020 by ABUBAKAR IDRIS KUTIGI, J.

The 1st and 2nd Respondents (as Claimants) at the Court below, by their Amended Joint Statement of Claim which was filed on the 14th day of October, 2014 pursuant to the order of the lower Court granted on the 8th day of October, 2014, claimed against the Appellant (as 1st Defendant) and the 3rd and 4th Respondents (as 2nd and 3rd Defendants) as follows: (a) Declaration that the 2nd plaintiff is the rightful Assignee and Beneficial Donor of Plot No. 70 measuring 2.117 M2 Cadastral Zone B08, Jahi District, Abuja Federal Capital Territory. (b) An order of perpetual injunction restraining the Defendants and their servants, agents or representatives from interfering with the plaintiff’s quiet possession and enjoyment of the said property. (c) The sum of N300,000,000.00 only as general damages. (d) The sum of N500,000.00 only as legal fee and expenses. (e) 10% of the judgment sum from the date of judgment until the entire amount is liquidated.

The Appellant filed his Amended Statement of Defence and counter-claimed against the Respondents as follows: (a) An Order of this Honourable Court dismissing in entirety, the Plaintiff’s claims as contained in the Further Amended Joint Statement of Claims. (b) A Declaration of this Honourable Court that the 3rd Defendant is the only valid, rightful and lawful Allotee of the Statutory Right of Occupancy over Plot No. 70 Cadastral Zone B08, Jahi District, Abuja, measuring 2, 117.12m2 with File No.

KN62553, the subject matter of this suit. (c) A Declaration of this Honourable Court that all the rights, interest, privileges, title and ownership vested on Plot No. 70 Cadastral Zone B08, Jahi District, Abuja, measuring 2,117.12m2 with File No.

KN62553, the subject of this suit, covered by a Statutory Right of Occupancy dated 25/02/14 are valid and subsisting. (d) An Order of this Honourable Court declaring as trespass the Plaintiffs and/or their agents(s) visit and/or continued to visit to Plot No. 70 Cadastral Zone B08, Jahi District, Abuja. (e) An Order of perpetual injunction restraining the Plaintiffs jointly and/or severally either by themselves, their agents, privies, assigns, administrators, successors-in-title, heirs however so described claiming through them from trespassing, alienating by way of gift, selling, mortgaging, or in any way transferring or laying claim of ownership of Plot No. 70 Cadastral Zone B08, Jahi District, Abuja. (f) The sum of One Million Naira Only (N1,000,000.00) as professional fees paid to Messrs Koneks Chambers, Counsel to the 3rd Defendant/Counter-Claimant for prosecuting this suit. (g) The sum of Seven Million Naira only (N7,000,000.00) as general and punitive damages. (See page 56-58 of the Supplementary Record of Appeal).

The 3rd and 4th Respondents filed their Statement of Defence on the 1st day of June, 2015, while the 1st and 2nd Respondents filed a reply to the Appellant’s Statement of Defence and counter-claim on 20/05/2015. Pleadings having duly been filed and exchanged between the parties at the lower Court, on 7th December, 2015, the 1st and 2nd Respondents (Plaintiffs) commenced hearing by calling three witnesses who testified, and their respective Witness Statements on Oath were adopted as their evidence.

Documents were equally tendered and admitted in evidence on behalf of the Plaintiffs at the lower Court. The witnesses of the Plaintiff were cross-examined and discharged by the order of the lower Court. The Appellant, in his defence and also in order to prove his counter-claim called one witness and tendered in evidence, documents that were admitted as exhibits. The 3rd and 4th Respondents at the lower Court called a sole witness who testified by adopting his Witness Statement on Oath.

At the end of cross-examination of the witnesses called by the defence, the witnesses were discharged by the order of the lower Court. At the conclusion of defence, Final Written Addresses were ordered to be filed and exchanged between the parties. Pursuant to the order of the lower Court, Final Written Addresses were filed and adopted.

The brief facts of this case before the lower Court as revealed by the Record of Appeal pertain to a dispute between the Appellant and the 1st and 2nd Respondents over a piece of land, Plot 70, measuring about 2,117m2 lying and situate at Cadastral Zone B08, Jahi District, Abuja. The Appellant was granted the plot in dispute by the 3rd and 4th Respondents. He accepted the offer of Statutory Right of Occupancy by an acceptance letter dated 27/02/2014. However, the Appellant later discovered the presence of the 2nd Respondent on the plot in dispute claiming the same plot of land.

On 17th December, 2020, the lower Court delivered its judgment and held as follows: “Now on the evidence as demonstrated I had found that the allocation Exhibit “P1” was to the 1st Claimant. That allocation in respect of plot 70 remains valid. It is also in evidence that the 1st claimant appointed the 2nd claimant as his attorney vide the irrevocable Power of Attorney admitted as Exhibit “P10” and also became his assignee vide Deed of Assignment admitted as Exhibit “P11”.

It was on the basis of these documents that 2nd claimant moved to the land, fenced same and put a security gate and drilled a borehole. He similarly received the bills related to the plot and paid the ground rent and has on the evidence being in possession. As stated earlier, these critical pieces of evidence were not on the evidence seriously challenged or controverted.” (See paragraphs 3 and 4 of page 279 of the Record of Appeal).

The lower Court further held, as contained at page 282 of the Record of Appeal as follows: “The 3rd Respondent cannot on the evidence be said to be a purchaser for value without notice. The 1st and 2nd Respondents may have allocated 1st claimant’s plot no. 70 predicated on the purported revocation of 1st claimant’s title but that revocation, the Court has found to be invalid. Flowing from the above, Relief (1) has merit but cannot be granted on terms as sought as demonstrated above but an order recognizing the equitable interest must enure consequentially.

I recognize that a Court has no jurisdiction to make or grant a relief not sought but this does not mean that a Court cannot make an order which is an offshoot of the main relief sought and which owes its existence to the main relief. See Adediji Adedoyin v.

Doyin Sonuga & Ors, (1999) 13 NWLR (pt. 635) 355 at 363.” In conclusion, the lower Court held:- (1) It is hereby declared that the 2nd plaintiff has equitable title or interest over plot No. 70 measuring 2,117m2 in Cadastral Zone B08, Jahi District, Abuja, Federal Capital Territory. (2) The Defendants and their servants, agents or representatives are restrained from acts capable of affecting the lawful and subsisting interest of claimants over plot No. 70, measuring 2,117m2 in Cadastral Zone B08, Jahi District, Abuja, Federal Capital Territory as guaranteed under the Land Use Act and the 1999 Constitution. (3) Reliefs (c), (d) and (e) fail. (4) I award cost assessed in the sum of N50,000.00 in favour of claimants payable by the 1st and 2nd Respondents.

The 3rd Defendant’s counter-claim… in its entirety and is hereby dismissed.” (See pages 288 – 289 of the Record of Appeal).

Dissatisfied with the judgment of the lower Court, the Appellant filed a Notice of Appeal on 26/02/2021 wherein nine (9) Grounds of Appeal were raised as follows: GROUND ONE The Honourable Judge erred in law when His Lordship though faced with a determination of the entitlement of the Plaintiff to “a declaration that the 2nd Plaintiff is the rightful Assignee and Beneficial Owner of Plot No. 70 measuring 2,117m2 in Cadastral Zone B08, Jahi District Abuja, Federal FCT” proceeded to find that: “The issue of the application of the provision of Section 22 of the Land Use Act is therefore of no consequence in the circumstances to the clear extent that it does not change or alter the dynamics with respect to the validity of the allocation of 1st Claimant and adds nothing of value to the case made out by 3rd defendant with respect to the claim of ownership of Plot No. 70.” GROUND TWO The Honourable Judge erred in law when His Lordship held that the Appellant even though a defendant in an action pertaining to root of title does not have the right to raise issues about: “The second point has to with the contention that the 1st plaintiff did not accept the offer of the Statutory Right of Occupancy, Exhibit “P1” made by 1st and 2nd defendants.

I really here do not understand the basis of this contention. The 3rd defendant is not the 1st and 2nd defendants. He equally does not work with them and certainly did not make the offer to 1st claimant. If the 1st and 2nd defendants did not make any case that the 1st claimant did not accept the offer, then it is not open to the 3rd defendant through the conduct of his address to make such contentions. This issue appears to me entirely academic and of no consequence in the trajectory of this case.

Thereby breaching the right to fair hearing of the 3rd Defendant-Appellant.” GROUND THREE The Honourable Judge erred in law when His Lordship held that: “On the question or complaint of alleged change of date of issuance of title in respect of Plot 70 from 18th April, 2003 to 16th September, 2006 has not been pleaded, and accordingly that Exhibits “P3” and “P4” containing these dates be discountenanced as not been pleaded, I think that these submissions borders on the identity of the disputed land.

The identity of land will be in dispute if the defendant in his statement of Defence make it so by specifically disputing either the area or size covered or the location as described in the statement of claim. See Adenle V. Olude (2003) FWLR (Pt. 157 1074) at 1086 par. C-E.” GROUND FOUR The Honourable Judge erred in law when His Lordship found that the Exhibits tendered by the Plaintiffs are admissible in spite of the fact that they were not tendered by the makers of the document.

The trial Court erred in law when His Lordship found that: “The allusion to Section 83(1) of the Evidence Act and maker by the learned counsel to the 3rd Defendant is therefore with respect clearly misconceived and has no application.” GROUND FIVE The Honourable Judge erred in law when His Lordship after finding that: “The 3rd defendant cannot on the evidence be said to be a purchaser for value without notice.

The 1st and 2nd defendants may have allocated 1st claimant’s plot No. 70 predicated on the purported revocation of 1st claimant’s title but that revocation, the Court has found to be invalid. Flowing from the above, Relief (1) has merit but cannot be granted on terms as sought as demonstrated above but an order recognizing the equitable interest must enure consequentially.

I recognize that a Court has no jurisdiction to make or grant a relief not sought but this does not mean that a Court cannot make an order which is an offshoot of the main relief sought which owes its existence to the main relief.” See Adedeji Adedoyin V. Doyin Sonuga & Ors (1999) 13 NWLR (Pt. 635) 355 at 363.

GROUND SIX The Honourable Judge erred in law when His Lordship reduced the status of the legal question of the evidential value of Exhibits “P1”, “P10” and “P11” relied by the 1st and 2nd Respondent in proof of the Plaintiff’s claim as matters which can only be raised if such is contained in the pleadings of the Appellant when His Lordship held that: “There is nothing in the pleading of the 3rd defendant/counter-claimant on the following points over which extensive submissions were made by the counsel to the 3rd Defendant/counter-claimant in the final address thus: a.

Validity of the Power of Attorney and Deed of Assignment between the 1st and 2nd Claimant and failure to obtain governors consent. b. The question of acceptance by the 1st claimant of Exhibit “P1” the offer of statutory right of occupancy and c. Breach of contract of Exhibit “P1”. Now I had earlier in this judgment referred to the settled position that the pleadings of parties remain the sole template which streamlines and situates the issues that remain to be resolved by the Court. Anything outside it cannot have any significance in the context of the dispute.

GROUND SEVEN The learned trial Judge erred in law when he said the submissions of the 3rd Defendant/Appellant within the context of Section 22(1) and 26 of the Land Use Act Cap L5 LFN 2004 must be discountenanced because it was not pleaded and so have no significance to the issue in dispute.

GROUND EIGHT The learned trial Judge erred in law when his Lordship refused to consider the Appellant’s Counter-Claim on the ground that: “In the circumstances, there is no dispute or argument that the offer of terms of Grant/conveyance of approval conveying the Honourable Ministers approval of a Grant of Right of Occupancy in respect of Plot of about 2,117m2 (plot No. 70) within Jahi District vide Exhibit “P1” dated 18th April, 2003 to 1st claimant is EARLIER in time to the offer of statutory right of occupancy of Plot No. 70 having an area of approximately 2,117.12m2 in Cadastral Zone B08 of Jahi vide Exhibit “D1” dated 25th February, 2014 granted to 3rd defendant/counter-claimant.

It is correct that in law, that where two competing titles originate from a common grantor, the first in time takes priority and the trial Court must in addition to finding as fact that both parties derive title originally from a common grantor, proceed to ascertain whether there is credible evidence, the priority of the competing titles. See Uzor V. D.F. (Nig). Ltd (2010) 13 NWLR (Pt. 1217) 553 at 576, Atanda V. Tijani (1989) 3 NWLR (Pt. 135) 74, Gege V. Nande (2006) 10 NWLR (pt. 988) 256.” GROUND NINE The judgment is against the weight of evidence.

The Record of Appeal was transmitted to this Court on 23/06/2021 and the supplementary record transmitted on the 28/07/2021. The Appellant’s Brief of Argument was filed out of time by the order of this Court and deemed duly filed on 26/01/2022. The 1st and 2nd Respondents filed their Brief of Argument on 25/02/2022 and the Appellant filed a Reply Brief of Argument on 10/03/2022. On 20/03/2022, this appeal was heard and argued. The Appellant adopted his Brief of Argument and the Reply Brief of Argument and urged the Court to allow the appeal.

The 1st and 2nd Respondents equally adopted their Brief of Argument and urged the Court to dismiss the appeal and affirm the decision of the lower Court. ISSUES OF DETERMINATION The Appellant’s Brief of Argument was settled by Abdul Mohammed SAN and he formulated five (5) Issues for Determination as follows: (1) When a principal relief sought cannot be granted by the Court, would it be right for the Court to grant an ancillary relief not sought before it?

Distilled from Grounds 1, 5, 6 and 7. (2) When there is a laid down rule and procedure for an offer to be accepted, would the offeror be bound by the contract if same was not accepted by the offeree? Distilled from Ground 3. (3) Was the trial Court right to discountenance the fundamental issue of failure to plead the surreptitious change of date of grant of Exhibit “P1”, “P3” and “P4”? Distilled from Ground 3. (4) Is it appropriate for a Court to attach probative value to a document that was not tendered by its maker?

Distilled from Ground 4. (5) Was the trial Court right to have dismissed the counter-claim of the Appellant even though the issue arose from the content of the relief sought? Distilled from Grounds 8 and 9.

The 1st and 2nd Respondents’ Brief of Argument was settled by Abdul Karim Audu Esq., and he raised two (2) Issues for Determination as follows: (1) Whether the 1st and 2nd Respondents have established on preponderance of evidence that they are entitled to all or any of the reliefs claimed at the lower Court? (Distilled from Grounds 1, 2, 3, 4, 5, 6, 7) (2) Whether the Appellant as Counter-Claimant at the Court below has equally established on a preponderance of evidence his entitlement to any or all of the reliefs claimed? (Distilled from Grounds 8 and 9).

ARGUMENTS ON ISSUES APPELLANT’S SUBMISSIONS APPELLANT’S ISSUE ONE At paragraphs 17-22 of the Appellant’s Brief of Argument, learned senior Counsel to the Appellant submitted to the effect that the trial Court was wrong to have granted a substituted relief in place of the first relief sought by the 1st and 2nd Respondents on ground of equity after finding that the relief as sought cannot be granted because a consequential order by its very nature is predicated on a principal order, without which it must crumble.

He submitted further that the granting of a consequential order is not an occasion for a trial Court to intervene in a suit on behalf of one party to the disadvantage of the other party; and by coming to the conclusion that the main relief cannot be granted, the action of the Plaintiffs must fail. He relied on the cases of HENRY O. AWONIYI V. AMORC (2002) 6 SCNJ 141, DR. M.T.A. LIMAN V. ALHAJI MOHAMMED (1999) 6 SCNJ 142, BADEWOLE V. GOV, LAGOS STATE & ORS (2020) LPELR-50085 (CA), SALUBI V. NWARIAKU (2003) LPELR-2998 (SC).

At paragraphs 23–25 of the Appellant’s Brief of Argument, learned Senior Counsel submitted to the effect that where the case made out at trial is not compatible with the reliefs sought from the Court, the case must be dismissed. He relied on the cases of UZOUKWU V. EZEONU II (1991)6 NWLR (PT. 200) 708 AT 784, MR. JOSEPH OLUJIMI KOLAWOLE AGBAJE V. INEC & ORS (2015) LPELR-25651 (CA).

At paragraphs 26-50 of the Appellant’s brief, learned senior Counsel submitted that the seeker of a declarative relief must prove his entitlement to same by cogent evidence, however, the evidence provided by the Plaintiff was found by the trial Court to be insufficient, thus, the appropriate thing the trial Court ought to have done is dismiss the Plaintiff’s claim.

He submitted further that because the relief claimed was sought to be proven by evidence that is inconsistent with the provisions of Section 22(1) and 26 of the Land Use Act Cap L5 LFN 2004, the Court ought to also dismiss same in due fidelity with the provisions of the Land Use Act. Learned Senior Counsel submitted that the grant of consequent relief not claimed by the 1st and 2nd Respondent was done in error and should be set aside.

APPELLANT’S ISSUE TWO At paragraphs 52-66 of the Appellant’s Brief of Argument, learned senior Counsel to the Appellant submitted to the effect that for there to be a valid contract, there must be an offer and a properly communicated acceptance which depicts the meeting of minds of both the offeror and the offeree; and where a procedure is laid for doing a certain act, only that procedure and none other is acceptable. He relied on the case of MPPP V. INEC & ORS (2015) LPELR-25706 (SC).

He submitted further that there is no iota of evidence tendered before the trial Court to show that the 1st Respondent accepted Exhibit P1, therefore, there is no binding contract between the 1st Respondent and the 3rd and 4th Respondent from the outset.

The learned senior Counsel contended that the inability to adduce evidence to show that the 1st Respondent accepted the Offer of Terms of Grant has failed to establish any binding contract of grant pursuant to which the Trial Court relied on Exhibit P1 to grant a declaratory relief in favour of the 1st and 2nd Respondents, thus the Trial Court erred in law.

APPELLANT’S ISSUE THREE At paragraphs 67-78 of the Appellant’s Brief of Argument, learned senior Counsel to the Appellant submitted to the effect that Exhibits P3 and P4 are of no issue, in so far as they do not relate to the Offer of Term of Grant/Conveyance of Approval with Reference No. MFCT.LA/ZA 315 dated 18/04/03.

He submitted further that throughout the pleadings, there was nothing to explain the reason of change of date of grant of the offer of the Statutory Right of Occupancy from 18th April, 2003 to 16th September, 2006 and it is trite that evidence led that is not supported by pleading goes to no issue. He relied on the case of BUHARI V. OBASANJO (2005)13 LRCN 1925; 2152, ADEPOJU V. AWODUYILEMI (1999) 5 NWLR (PT. 603) 364.

It is the contention of the learned senior Counsel that there is nothing tendered before the trial Court to show that the recertification of the said property was done in respect of the plot claimed by the 1st and 2nd Respondent to have been issued on 18/04/03, thus, the assumption by the trial Court that because various demand notices were made for payment of ground rent to the 1st Respondent, then there is a grant in favour of the 1st Plaintiff, is misconceived, because under the Land Use Act, the only evidence of proof of title to land is the Certificate of Occupancy and nothing more.

He relied on the cases of OTUKPO V. JOHN & ANOR (2012) LPELR-25053 (SC) and NDUUL V. WAYO & ORS (2018) LPELR-45151 (SC). APPELLANT’S ISSUE FOUR At paragraphs 79-94 of the Appellant’s Brief of Argument, learned Counsel submitted to the effect that the 1st and 2nd Respondents’ witness cannot rely on the documents that they are not the maker, to claim that the 1st Respondent has title and PW1 cannot give evidence in respect of Exhibit P2 because he is not the maker of the document, neither is he associated with it.

He submitted further that the trial Court was bound to follow the latest decision of the Apex Court on this issue, even if he prefers a previous decision of the Apex Court, and to refuse to do same is clearly an attempt to refuse to follow judicial precedent. APPELLANT’S ISSUE FIVE At paragraphs 95-103 of the Appellant’s Brief of Argument, learned Senior Counsel submitted to the effect that a counter-claim is an independent claim that stands as a Cross Action and not merely a defense to the Plaintiff’s claim. He relied on the case of OROJA & ORS V. ADENIYI & ORS (2017) LPELR-41985(SC).

He submitted further that the quality of evidence led by the Appellant was direct evidence of every piece of document in support of his claim before the trial Court, however, the 1st and 2nd Respondents did not succeed in establishing that the case and the averments of the Defendant are untrue and inadmissible, thus, the oral and documentary evidence adduced by the Appellant were unchallenged and uncontroverted.

He submitted further that the law is that an unchallenged piece of evidence ought to be accepted by the trial Court as proof of the facts or issue in respect of which the evidence was given, and judgment given in favour of the party whose evidence is not controverted. He submitted that the trial Court erred in law by refusing to consider the counter-claim.

In conclusion, learned senior Counsel to the Appellants urged this Court to allow this appeal and grant the reliefs as contained in the Notice of Appeal. 1ST AND 2ND RESPONDENTS’ SUBMISSIONS 1ST AND 2ND RESPONDENTS’ ISSUE ONE At paragraphs 4.01-4.54 of the 1st and 2nd Respondents’ Brief of Argument, learned Counsel to the 1st and 2nd Respondents submitted to the effect that the pleading of the 3rd and 4th Respondents is shorn of the required particulars of the facts of fraud they alleged against the 1st and 2nd Respondents and it was not creditably proved at all by the 3rd and 4th Respondents.

He submitted further that the 3rd and 4th Respondents also failed woefully to comply with the procedure for revocation of right of occupancy according to law, and all the complaints on non-service of revocation notice, which were fundamental and touching on denial of the Claimant’s right of fair hearing under the Constitution, remained unanswered by the 3rd and 4th Respondents.

It is the contention of the 1st and 2nd Respondents’ Counsel that given the facts and circumstances of this case where the 2nd Respondent as an assignee has taken physical possession of the disputed land, the registerable instrument conferring the status of an assignee on him, even though not registered, can still be used to prove an equitable interest in the land.

Counsel contended further concerning the Deed of Assignment that the absence of the Governor’s Consent would not have rendered the transaction between the 1st and 2nd Respondent void or illegal because the contract stage does not require the Governor’s consent, as there must be a valid and subsisting contract of alienation of a right of occupancy before the question of obtaining the consent of the Governor can arise. He relied on the case of DAHIRU LTD V. TRADE BANK NIGERIA PLC (2009)13 NWLR (PT. 1159) 577.

Learned Counsel contended further that contrary to the submissions of the Appellant, parties are clearly at ad idem on the identity of the disputed land, therefore, any errors with respect to dates cannot be fatal. He relied on the case of BABATOLA V. ALADEJANA (2001)12 NWLR (PT. 728) 597 AT 614 C.

Counsel argued that in law, it is not hearsay to narrate what one was told in so far as the evidence does not seek to establish the truth of what the witness was told but the fact that he was so informed, therefore, contrary to the argument of the Appellant, the learned trial Judge correctly held that the evidence of PW1 is not hearsay and it was rightly admitted. 1ST AND 2ND RESPONDENTS’ ISSUE TWO At paragraphs 4.55-4.62 of the 1st and 2nd Respondent’s Brief of Argument, learned Counsel submitted to the effect that the Appellant has not established on a balance of probability that he is entitled to the reliefs sought on his counter claims before the Lower Court.

He submitted further that the Appellant, as a counter-claimant, has the same burden as the Claimant for a Declaration of a title to land, he must succeed on the strength of his own case and not on the weakness of the case of the person counter-claimed against. Counsel relied on the case of AWOSUNLE & ANOR V. FAGBEMI & ANOR (2011) LPELR-8912 P. 25, PARAS A-G (CA). In conclusion, learned Counsel to the 1st and 2nd Respondents submitted that this appeal should be dismissed.

APPELLANT’S REPLY Learned Senior Counsel to the Appellants submitted that the contention of the 1st and 2nd Respondents relying on the cases of OGUNBAMBI V. ABOWABA (1951) 13 WACA 222, ORASANMI V. IDOWU (1956) 4 SC 40, OBIJURU V. OZIMS (1985)2 NWLR (PART 2) 167 and OYEBANJI V.

LAWANSON (2003) 26 WRN 101 will not apply to this case because fundamentally, the jurisprudence pertaining to title to land in the Federal Capital Territory is different from the jurisprudence pertaining to land in other parts of Nigeria such that title cannot be acquired by long possession but by acquisition of title either by grant as made pursuant to the Land Use Act or by alienation as envisaged by the Land Use Act. He relied on the case of HRH NDAKUZO LUGBE & ORS V. FCDA & ORS (2021) LPELR-53182 (CA).

Learned Appellant’s Senior Counsel submitted further that the arguments of the 1st and 2nd Respondents pertaining to the inability of the 3rd and 4th Respondents to prove the allegations of forgery or fraud of the 1st and 2nd Respondents as the basis for the revocation of the 1st and 2nd Respondent’s title at the trial Court has no place in this appeal because this is not the 4th and 5th Respondents’ appeal nor is there any ground of appeal containing any complaint about the finding of the trial Court in that regard.

Counsel argued that the jurisprudence recognizing the exception to the need to obtain consent does not apply to this instant case, as the facts in the case of MONKOM V. ODILI are in stark contrast with the facts in this case. It is the contention of Counsel to the 1st and 2nd Respondents that the dicta of the Supreme Court in AG CROSS RIVER STATE V.

AG FED & ANOR (2005)15 NWLR (PT 947) 71 quoted by the 1st and 2nd Respondents to the effect that “while a Court cannot award more than what a Plaintiff claims, it can award less” pertains to the award of monetary entitlement of a party in a matter, and therefore, it is not applicable to this case and the trial Court has no powers to substitute a relief not claimed with the one which it has already found to be “not grantable”.

Counsel submitted that the mere fact that a document is a public document and admissible because of its status does not automatically mean that a Court is bound to place probative value on the document. In conclusion, learned Senior Counsel to the Appellant urged this Court to discountenance the submissions of the 1st and 2nd Respondents and proceed to allow the appeal and grant the reliefs as contained in the Notice of Appeal. RESOLUTION OF ISSUES This appeal shall be determined based on the issues formulated by the Appellant’s learned senior Counsel.

I therefore adopt the Appellant’s issues as mine and the arguments of the 1st and 2nd Respondents’ Counsel shall be considered thereunder as well. ISSUES 2, 3 AND 4 TAKEN TOGETHER The learned Senior Counsel submits at paragraphs 52–65 of the Appellant’s Brief of Argument to the effect that the 1st Respondent did not accept the offer of Statutory Right of Occupancy Exhibit “P1” as provided by Clause 4 and therefore there is no valid acceptance of the offer made by the 3rd and 4th Respondents.

Senior Counsel for the Appellant submits that where the offer was not accepted in the mode provided by the 3rd and 4th Respondent, then there is no contract capable of being enforced. On the other hand, the 1st and 2nd Respondents’ learned Counsel submits at paragraphs 4.44–4.46 of the Respondents’ Brief of Argument to the effect that this contention of the Appellant does not form the nucleus of the case presented at the lower Court by the Appellant as same is not contained in the pleadings of the Appellant.

He submits further on behalf of the 1st and 2nd Respondents that the Appellant lacks capacity to query the manner of the acceptance of offer made by the 1st Respondent. As rightly submitted by the learned Counsel to the 1st and 2nd Respondents, the Appellant did not canvass or plead facts pertaining to the 1st Respondent’s acceptance of the Statutory Right of Occupancy, Exhibit “P1”. The law is trite that parties as well as the Court or tribunal are bound by the pleadings. See PEOPLES DEMOCRATIC PARTY V. SANI ALI & ORS, (2015) LPELR 40370 (CA), OLUWAROTIMI AKEREDOLU, SAN & ANOR V. RAHAMAN O.

MIMIKO & ORS, (2013) LPELR 20889 (CA). In the case of PEOPLES DEMOCRATIC PARTY (PDP) V. INEC, (2014) LPELR 23808, the Supreme Court of Nigeria per OKORO, JSC held thus: “It is trite law that at all times, parties are bound by their pleadings. A party will not be allowed to set up a new case on appeal other than that which was ventilated at the trial Court. See American Cyanamid Company v. Vitality Pharmaceuticals Ltd (1991) 2 NWLR (pt. 171) 15, Osho V. Foreign Finance Corporation & Anor, (1991) 5.

SC 59.” In the instant case, I have perused the Appellant’s Statement of Defence at paragraphs 46–50 of the Record of Appeal and I am unable to lay my hands where the Appellant raised the issue either in his pleading or sworn testimony on oath of the witness. Thus, it is therefore wrong for the Appellant to depart or set up a new case in this appeal before us. ​ Secondly, the Appellant has no capacity to interrogate the 1st Respondent’s acceptance of the offer of Statutory Right of Occupancy by the 3rd and 4th Respondents, as the Appellant is not a party to the contract between them.

As a general rule, the doctrine of privity of contract is that a contract cannot confer or impose obligations arising under it on any person except the parties to the contract. In other words, only the parties to a contract can sue or be sued on the contract, and a stranger to a contract cannot sue or be sued on the contract, or enquire about its performance. In the case of OSHEVIRE LIMITED V.

TRIPOLI MOTORS (1997) LPELR 1584, the Supreme Court of Nigeria held as follows: “The doctrine of privity of contract, according to Chitty on Contracts, 23rd Edition page 453 paragraph 971, may be stated as follows: a contract cannot confer rights or impose obligations arising under it on any person except the parties to it.” The 3rd and 4th Respondents in their pleadings never made out an issue on the acceptance of the Statutory Right of Occupancy by the 1st Respondent neither did the 3rd and 4th Respondents aver facts as to the manner the 1st Respondent ought to have accepted the offer of Statutory Right of Occupancy. (See pages 67 – 69 of the Record of Appeal). ​ The Appellant cannot therefore cry foul more than the bereaved in the circumstance of this case.

I completely agree with the submissions of the learned counsel to the 1st and 2nd Respondents at paragraph 4.45 and 4.46 of the 1st and 2nd Respondents’ Brief of Argument that the existence or absence of the evidence as to how the 1st Respondent accepted the offer by the 3rd and 4th Respondents is of no moment in view of the evidence of PW1 and the documents admitted in evidence as exhibits on the demand and payment of ground rents by the 1st Respondent to the 3rd and 4th Respondents. In other words, the doctrine of acquiescence would apply. See also FGN V.

ZEBRA ENERGY LTD (2002) 18 NWLR (PT. 798) 162. The Appellant’s senior Counsel submits at paragraphs 67–71 of the Appellant’s Brief of Argument to the effect that the re-certification and re-issuance of Certificate of Occupancy, the exercise was not meant to change the date of grant of title documents belonging to title holders. In a nutshell and without much ado, the submissions of learned senior Counsel is not supported by the Appellant’s pleadings or evidence. Thus, Address of Counsel, no matter how eloquent and sound it might be, cannot take the place of pleaded facts and evidence.

In the case of NEKA B.B.B. MANUFACTURING COMPANY LTD V. AFRICAN CONTINENTAL BANK, (2004) LPELR 1982, the Supreme Court per PATS-ACHOLONU, JSC (of blessed memory) held as follows: “It cannot be overemphasized that neither the pleadings nor the most forensic eloquence of any brilliant lawyer can be a substitute for evidence that was given. Evidence whether oral or documentary consists of facts, and facts are the fountain head of law.” As I said earlier, the Appellant would not be allowed in law to depart from the case he canvassed at the lower Court and to now raise new issues in this appeal.

The Appellant must be bound by his pleadings and in both issues 2 and 3, I hold the view that the Appellant is precluded from raising and arguing new or fresh issues in this appeal without leave of this Court, and I so hold.

In respect of the Appellant’s senior Counsel’s argument on whether it is appropriate for a Court to attach probative value to a document that was not tendered in evidence by its maker, from the submissions of both the senior Counsel for the Appellant and the 1st and 2nd Respondents’ learned Counsel, Exhibit “P1” is the Statutory Right of Occupancy emanating from the 3rd and 4th Respondents to the 1st Respondent in respect of the plot in dispute in this appeal. This means Exhibit “P1” in contention, for all intents and purposes, is a public document.

Now, I have perused the evidence of the witnesses called by the 1st and 2nd Respondents at the lower Court. On 7th December, 2015, one Samuel Bulus testified as PW1 and Exhibit “P1” was tendered and admitted through him (See pages 194 – 195 of the Record of Appeal). And as I said earlier, Exhibit “P1” is a public document and PW1, Samuel Bulus, is not the maker of it. However, in the case of HON OKOTO FOSTER BRUCE V. MREBIKEME FRANK ERE & ORS, (2004) LPELR 7376, this Court held thus: “The document sought to be tendered is Federal Form EC25B.

It is the document, which itemize the list of Electoral Officers in the Election. The Tribunal rightly describes it as a public document but failed to appreciate that its contents can only be proved by primary evidence, and the person who tendered it need not be its maker.” See ALI V. OBANDE (1999) 9 NWLR (PT. 620) 363 at 516. In the case of MAJOR ABU V.

ALHAJI TIJANI AHMED, (2017) LPELR 43179 this Court as per DANIEL-KALIO, JCA held thus: “The Appellant’s learned counsel also argued that maker of Exhibit “P2” was not called to testify and consequently Exhibit “P2” is a worthless document and no evidential value should be attached to it. Exhibit “P2” is a letter of the Land Use and Allocation Committee of the Federal Ministry of Works and Housing dated 30th April, 2003. It is an offer letter of plot No.1, No.6 Ethiopia Crescent Kaduna to Lawal A. Augie. That letter is a public document. In the case of ADELODUN UMORU & ORS V.

MEMUDUN JIMOH ORIRE & ANOR, (2010) LPELR 9065 (CA), it was held by this Court per AGUBE, JCA that to prove a public document in Court there is no need to call the maker. Also in the case of GBOYEGA BAKARE V. FRN, (2016) LPELR 41361 (CA). I stated thus “with regard to Exhibit “P2”, it is a public document. It is admissible and can be relied upon even when the maker is not called.” Further, Exhibits “P3(1) and (2)”, “P2(1) and (2)” and “P4(1), (2) and (3)” fall in the same category as Exhibit “P1”. (See page 195 items 2, 3 and 4 of the Record of Appeal).

Thus, on the whole, I am of the view that Issues 2, 3 and 4 be, and they are hereby resolved against the Appellant and in favour of the 1st and 2nd Respondents. ISSUE ONE It is the submission of learned senior Counsel that a Plaintiff that he who seeks a declaratory relief must show that he has an interest or right which forms the foundation for the right. The Plaintiff must establish a right in relation to which the declaration can be made. Learned senior Counsel relied on the case of AYIDA & ORS V. TOWN PLANNING AUTHORITY & ANOR, (2013) LPELR 409 (SC).

Then at paragraphs 30–34 of the Appellant’s Brief of Argument, learned Senior Counsel submits to the effect that the evidence provided by the plaintiff in proof of the principal relief was found by the trial Court not grantable, but another relief altogether was granted, instead of dismissing the claim. The learned Counsel to the 1st and 2nd Respondents on the other hand submits at paragraphs 4.32–4.37 of the 1st and 2nd Respondents’ Brief of Argument to the effect that the trial Court held that the 1st and 2nd Respondents’ relief (1) has merit and then granted a consequential relief.

Now for a better understanding of the issue in controversy, let me first state the principal relief sought by the 1st and 2nd Respondents in their Amended Statement of Claim at the Lower Court, thus: “Declaration that the 2nd Plaintiff is the rightful assignee and beneficial owner of plot No. 70 measuring 2,117m2 in Cadastral Zone B08, Jahi District Abuja, Federal Capital Territory.” The learned trial Court, after evaluating the evidence before it, held as follows: “Now on the evidence as demonstrated, I had found that the allocation Exhibit “P1” was to the 1st Claimant.

That allocation in respect of plot No. 70 remains valid. It is also in evidence that the 1st Claimant appointed 2nd Claimant as his attorney vide the irrevocable Power of Attorney admitted as Exhibit “P10” and also because his assignee vide the Deed of Assignment admitted as Exhibit “P11”. (See page 279 of the Record of Appeal) The learned trial Court continued at page 282 of the Record of Appeal thus: “The 3rd respondent cannot on the evidence be said to be a purchaser for value without notice.

The 1st and 2nd Defendants may have allocated 1st Claimant plot No.70 predicated on the purported revocation of 1st Claimant title but that revocation, the Court has found to be invalid. Flowing from the above, Relief (1) has merit but cannot be granted on terms as sought as demonstrated above but an order recognizing the equitable interest must enure consequentially.

I recognize that a Court has no jurisdiction to make or grant a relief not sought but this does not mean that a Court cannot make an Order which is an offshoot of the main relief sought and which owes its existence to the main Relief.” (See page 282 of the Record of Appeal). The learned trial Court then held as follows: “It is hereby declared that the 2nd Plaintiff has equitable title or interest over Plot No.70 measuring 2,117m2 in Cadastral Zone B08, Jahi District Abuja FCT.”

The learned trial Judge relied on the case of ADEDIJI ADEDOYIN VS. DOYIN SONUGA & ORS (SUPRA). Now, this issue was settled in the case of HIGH CHIEF JACOB IGBEKELE AKEREMALE & ORS. VS. CHIEF BABATUNDE SAANUMI, (2015) LPELR 25812, where this Court held as per OWOADE, JCA on whether the Court can grant a relief not claimed; exception to the general rule, as follows: “In deciding issue one, I would have thought that the learned counsel for the Appellant was right to have said that a Court does not have jurisdiction to grant a prayer that was not asked for by a party.

However, I stumbled across the decision of the Supreme Court in the case of Hon. Chigozie Eze and 148 Ors. vs. Governor of Abia State & 2 Ors. (2014) (Pt. 1426) NWLR 182. The question before the Supreme Court in that case was whether the Court of Appeal was not in error when it failed to make a consequential order directing the payment of salaries and allowances of the Appellants after it granted all the reliefs sought by the Appellant except relief No.8 which was a claim for reinstatement of the Appellants to their offices.

The Appellants in that case argued that it was futile for the Court of Appeal to resolve all the issues in their favour without granting a consequential order that would be of benefit to them as they won, they therefor urged the Supreme Court to make an order on the 1st respondent to pay N10,451.99 per year to each of them in lieu of their reinstatement to their office. The Respondents argued that the Supreme Court ought not to grant payment of money to the Appellants because they did not ask for such relief and the Supreme Court lacked the power to grant unclaimed reliefs.

The Supreme Court held sundrily in the Eze vs. Governor Abia State (supra) as follow: First, at page 217 Rhodes Vivour JSC (who read the judgment). “A careful reading of the above provisions reveals unlimited power available to this Court to do substantial justice in deserving cases. A consequential relief can be granted by this Court in the interest of justice even where such has not been specially claimed.

“Justicia Villi-tus in ut at pefectus quod futures perpectus.” Equity looks as done that which ought to be done.” Second, at pages 218–219, Onnoghen, JSC” it is a general principle of law of great antiquity to the effect that when there is a violation of right there must be a remedy. Put in another way, Ubi jus Ibi remedium where there is a right there must be a remedy. See Bello vs. A.G. Oyo State (1986) 5 NWLR (Pt. 45) 823, FBN Plc. vs. Associated Motors Co. (Nigeria) Ltd. (1998) 10 NWLR (Pt. 570) 441; Labode vs. Otubu, (2001) 7 NWLR (Pt. 712) 256; Oyekanmi vs.

NEPA (2000) 12 SC (Pt. 1) 70 at 84. It is under the above general principle of law that another principle was developed or emerged, that of consequential relief which is a principle that enables a Court of law to grant to a party a relief incidental to the main relief(s) and which was/were not claimed by the party in question. It is designed to enable the Court to do justice between the parties. It is in line with the above that this Court had ordered payment of salary and wages for the intervening period even though not… claimed, such as in the case of Ekpenyong vs.

Nyong, (1975) 2 SC 7 at 81 – 82; Nneji vs.

Chukwu, (1998) 3 NWLR (Pt. 210 443 at 457.” In the instant appeal, the learned trial Court was right when it granted at page 288 of the Record of Appeal as follows: “It is hereby declared that the 2nd Plaintiff has equitable title or interest over plot no.70 measuring 2,117m2 in Cadastral Zone B08, Jali District Abuja Federal Capital Territory.” The evidence on record established the fact that the 1st Respondent (Claimant at the lower Court) had proved that he is a purchaser for value of Plot 70 measuring 2,117m2, Cadastral Zone B08, Jahi District, Abuja. In the case of MAJOR ABU V.

TIJANI (supra), it was held that: “It is trite law that where a purchaser of land or a lessee is in possession of the land by virtue of a registrable instrument which has not be registered and has paid the purchase money or the rent to the vendor or the lessor, then in either case, the purchaser or the lessee has acquired an equitable interest in the land which is as good as a legal estate and this equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity. See BELLO, JSC (as he then was) in the case of OKOYE V.

DUMEZ (1985) 1 NWLR (Pt. 4) 783.” The reasoning of the learned trial Court in granting this relief cannot be faulted and its decision is sound in law. Therefore, the decision cannot be disturbed by this Court. The refusal of the learned trial Court to grant the counter-claim cannot also be faulted. In effect, all the issues set out for determination by the Appellant are hereby resolved against the Appellant and in favour of the 1st and 2nd Respondents. Consequently, this appeal lacks merit and it is hereby dismissed.

Accordingly, the judgment of the learned trial Judge of the High Court of the Federal Capital Territory, Abuja in Suit No. FCT/HC/CV/1499/2014, delivered on the 17th day of December, 2020 by ABUBAKAR IDRIS KUTIGI, J. is hereby affirmed. No order as to cost.

PETER OLABISI IGE, J.C.A.: I had the advantage of reading in draft the lead judgment of my learned brother, SENCHI, JCA and I agree with it. I also affirm the judgment of the High Court of the Federal Capital Territory, Abuja in Suit No. FCT/HC/CV/1499/2014 delivered by ABUBAKAR IDRIS KUTIGI, J. on the 17th day of December, 2020.

I abide with the consequential order as to costs.

BIOBELE ABRAHAM GEOREGWILL, J.C.A.: I have been privileged to read in advance a draft copy of the leading judgment just delivered by my noble lord Danlami Zama Senchi JCA, and I am completely satisfied with the lucid reasoning and impeccable conclusions reached therein to the effect that the appeal lacks merit and is thus, liable to be dismissed.

My Lords, in law when an Appellant alleges as in ground nine of the Notice of Appeal that the lower Court had not properly evaluated the evidence led by the parties, it is simply a call on the appellate Court to consider first whether or not the trial Court had properly evaluated the evidence led before it and if it finds that the trial Court had not done so, then to proceed to and re-evaluate the evidence in the printed record to determine if the trial Court had made correct findings borne out by the evidence as led by the parties.

It is thus the law that it is only where the trial Court had not properly carried out its sacred duty of dispassionately evaluating the totality of the evidence led and had thus failed in this primary duty that an appellate Court would have the legal justification to intervene and re-evaluate the evidence on the printed record in order to make appropriate findings of facts in line with the evidence led and in the dictates of justice to the parties.

So. until an appellate Court arrives at such a conclusion the need for re – evaluation or evidence does not arise since an appellate Court has no business interfering with correct findings of a trial Court. See African Songs Limited & Anor V. King Sunny Ade (2018) LPELR – 46184 (CA) per Sir Biobele Abraham Georgewill JCA. See also Cornet Cubbit Ltd & Anor V. Federal Housing Authority & Ors (2022) (CA) per Sir Biobele Abraham Georgewill JCA; Williams V. Tinubu (2014) All FWLR (Pt. 755) 200; Amuneke V. The State (1992) NWLR (Pt. 217)347.

In the leading judgment, after a thorough review of the pleadings of the parties and painstaking evaluation or the evidence led as in the Record of Appeal it was impeccably found, as was also correctly found by the lower Court, that the 1st Respondent through whom the 2nd Respondent claim title to the land is a purchaser for value of Plot 70, measuring 2.117M2 Cadastral Zone 1108. Jahi District, Abuja.

In law, possession whether actual or constructive, once coupled with the purchase receipts and or a memorandum of sale would amount clearly to an equitable title in the land in dispute in favour of the 1st Respondent which is as good as a legal estate and can stand against even a legal title if acquired with notice of such an equitable title, this includes a Statutory Right as flaunted by the Appellant. See Ozua V.

Suleiman & Anor (2009) 11 WRN 154 AT p. 176, where it was stated inter alia thus: “When a purchaser of land or a lease is in possession of the land by virtue or a registrable instrument which has not been registered and has paid the purchase money or rent to the vendor or the lessor, then in either ease, the purchaser or the lessee has acquired an equitable interest in the land which is as good as a legal estate.” See also Mr. Frank Anyi & Ors V. Chief Harry Ayoade Akande & Ors (2017) LPELR-41973(CA) per Sir Biobele Abraham Georgewill JCA; M. L. Mande Enterprises Limited V.

The Registered Trustees of Seventh Day & Ors (2022-05) Legal Pedia 03915 (CA). Thus, once a document is pleaded and tendered as evidence of payment for a land transaction but not to assert any legal title to a land in dispute, it is admissible in evidence for that purpose or which it was pleaded and tendered in evidence. It follows that were such evidence of payment of purchase price for land transaction is coupled with possession and exercise of acts of ownership it would undoubtedly confer on such a person equitable title to the land in dispute.

This finding by the lower Court is both unimpeachable and impeccable and must be allowed to stand. See Section 15 of the Land Registration Act, Cap 515 of the Laws of the Federal Capital Territory. In Adesanya V. Otuewu (1993) LPELR – 146 (SC), the Supreme Court had stated inter alia thus: “It is well settled law that the payment of purchase price coupled with being put in possession confers an equitable title enabling a purchaser in possession to call for a document of title. The title so acquired is capable of defeating subsequent purchasers.” Sec also Akinduro V.

Alaya (2007) LPELR – 344 (SC), where the Supreme Court had stated inter alia thus: “A document inadmissible for a purpose may be admissible for another purpose. In the instant case, Exhibit I which is inadmissible in proof of title would have been admissible in proof of an appropriate equitable relief claimed.” See further Nsiegbe V.

Mgbemena (2007) – 2065 (SC), where the Supreme Court had reiterated inter alia thus: “A purchaser of land who has paid and taken possession of the land by virtue of a registrable instrument which has not been registered, has thereby acquired an equitable interest which is as good as a legal estate.” It is thus, good law that where a purchaser of land or a lessee is in possession or the land by an instrument that had not been registered but has paid the purchase money or the rent to the vendor or the lessor. then in either case, the purchaser or the lessee has acquired an equitable interest in the land which is as good as a legal estate and this equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity.

A registrable instrument which has not been registered is admissible to prove such equitable interest and to prove payment of purchase money or rent. See Atufe V. Oghomienor (2004) 13 NWLR (Pt. 809) 327 AT pp. 347 – 348. See also Savage V. Sarrough (1973) 13 NLR 141, Ogunbamhi V. Abowab (1951) WACA 222, Fakoya V. St. Paul’s Church Shagamu (1966) 1 ALL NLR 74, Dr J. C. Okoye V. Dumez Nig. Ltd. & Anor. (1985) 6 SC 3 AT p. 12.

It is for the above few comments of mine but for the fuller reasons adroitly marshaled out in the leading judgment that I too hold that the appeal lacks with merit and is thus liable to be dismissed. I too hereby dismiss the appeal. I shall abide by the consequential orders made in the leading judgment including the order as to no cost.

Judgment

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment) : On the 24th of January, 2018, a decision of the High Court of Plateau State was delivered Coram J. P. Gang (J). The claim of the Plaintiffs now Appellants was dismissed. The Appellants sought the following reliefs in their Statement of Claim: a. A Declaration that having regards to the existing judgments in their favour, the Plaintiffs are the landlords of all that property being occupied by the Defendant in Tekawai (Kawai) Taragol in Bokkos L.G.A Plateau State b.

A Declaration that the Defendant is a tenant of the Plaintiffs in the said premises occupied by it in Tekawai (Kawai) Tarangol in Bokkos L.G.A. c. An Order requiring the Defendant to pay to the Plaintiffs all the due and outstanding rents with respect to the entire premises minus the 8 man quarters and Corpers lodge which the Defendant occupies in Tekawai (Kawai) Tarangol in Bokkos L.G.A at a monthly rent rate of N2,500,000.00 from 1/8/13 to 31/12/15. d.

An Order requiring the Defendant to pay to the Plaintiffs all the due and outstanding rents with respect to the 8 man quarters and Corpers lodge which it occupies in Tekawai (Kawai) Tarangol in Bokkos L.G.A at a monthly rent rate of N1,500,000.00 from 1/8/13 to 31/12/15. e. An Order requiring the Defendant to pay to the Plaintiffs the sum of N2,500,000.00 monthly rent with respect to the entire premises minus the 8 man quarters and Corpers lodge which the Defendant occupies in Tekawai (Kawai) Tarangol in Bokkos L.G.A from the 1st January 2016 till the judgment of this Honourable Court. f.

An Order requiring the Defendant to pay the Plaintiffs the sum of N1,500,000.00 monthly rent with respect to the 8 man quarters and Corpers lodge which the Defendant occupies in Tekawai (Kawai) Tarangol in Bokkos L.G.A from the 1st January, 2016 till the judgment of this Honourable Court. g. An Order requiring the Defendant to give up vacant possession of the said Plaintiffs property. h. Cost of this action.” (See pages 12-13 of the Records). The Defendant now Respondent filed a Statement of Defence denying the Plaintiffs’ claims.

The Plaintiffs on 10/7/16 filed a reply to the Statement of Defence. ​ At the hearing of the case, the Plaintiffs called two witnesses PW2, Hosea Maram (1 st Plaintiff) and PW1 Pastor Mathew Maram (2nd Plaintiff). They also tendered 19 Exhibits (Exhibits A – S) to buttress their case. Two other Exhibits; ‘T’ and ‘U’ were tendered through PW2 under cross-examination. The Defendant called one witness DW1, Mr. Sunday Tok. No document was tendered as exhibit by him. After being cross-examined the defence closed and the matter was adjourned for Counsel’s addresses.

The grouse of the Appellants is that the lower Court then held that they as Plaintiffs had proved acts of ownership through the said Exhibits which they tendered, but declined to enter judgment with respect to their claim for rents due from the Defendant. (See Pages 1-3 of the Appellants’ Brief). The parties in this appeal shall simply be referred to as Appellants and Respondent. The Appellants filed a Notice of Appeal of seven (7) grounds on 27/05/2019 dated the same date. The Appellants’ Amended Notice of Appeal of eight (8) grounds dated 13/07/2020 was filed on the same date.

The Appellants’ Brief of Argument dated 15/11/2019 was filed on 18/11/2019 and was deemed filed on 08/02/2021 while the Respondent’s Brief of Argument dated 04/03/2021 was filed on 04/03/2021. The Appellants filed a Reply Brief dated 05/10/2021 on 06/10/2021 and was deemed filed on 11/10/2021. The learned Counsel to the Respondent, Prof. F. M. Kwede filed a notice of Preliminary Objection on 05/03/2021, dated 04/03/2021.

The sole ground for the Preliminary Objection is: “That the Appellants initiated the action vide a writ of summons dated the 22nd Day of January, 2016, exclusively “suing for and on behalf of the Maram Mavolo family”, a non-juristic personality which is incapable of initiating a valid legal process.” At the hearing of the appeal, despite the service of Hearing Notice on the Respondent, the Respondent Counsel was not present in Court to move the Motion on Notice raising the Preliminary Objection.

The learned Counsel to the Appellants urged the Court to deem the Preliminary Objection as abandoned and strike out same. The Preliminary Objection which is by way of Motion on Notice ought to be moved at the hearing of the appeal, before the argument of the Appellant. Where this is not done, the Preliminary Objection would be deemed abandoned. See the case of OFORKIRE & ANOR V.

MADUIKE (2003) 5 NWLR (Pt. 812) 166 which held that; “…I agree with the learned Counsel that a party in the Court of Appeal having a Preliminary Objection against any grounds of appeal must give the Appellant three days notice before the Objection is heard. The notice of Preliminary Objection can be given in the Respondent’s brief, but a party filing it, in the brief, must ask the Court for leave to move the notice of objection before the oral hearing of the appeal commences otherwise it will be deemed to have been waived and therefore abandoned.” per Mohammmed, J.S.C. (Emphasis mine).

In the case of NSIRIM V. NSIRIM (1990) 3 NWLR (PT. 138) P 285, His Lordship, Obaseki, J.S.C. succinctly laid out the procedure. The eminent Jurist declared thus; “The Respondent in the instant appeal has contended that although the objection was stated in the brief, the Court was not moved at the oral hearing of the appeal to strike out the grounds for failure of particulars of errors. He therefore submitted that the appellant herein should be taken to have abandoned the objection, more so, as it was not an issue for determination in the appeal before the Court of Appeal.

In my opinion, there is substantial merit in the contention of the Respondent. Being a preliminary objection, the objection should have been by way of motion on notice before the hearing of the appeal so that arguments on it can be heard by the Court. While notice of objection may be given in the brief, it does not dispense with the need for the respondent to move the Court at the oral hearing for the relief prayed for.

This preliminary objection, not having been raised and argued at the oral hearing, the Court of Appeal cannot be condemned as having erred in allowing the then Appellant (now Respondent) to argue his Appeal.”(Emphasis mine). (See also OKOROCHA V. PDP & ORS (2014) VOL. 57 (Pt. 2) NSCQLR P. 272 AT 319 per Ogunbiyi, J.S.C. and the unreported decision of this Court in the case of MR. CHUKWUEMEKA ILOZOR V. TOTAL NIGERIA PLC, Appeal No. CA/E/75/2015 delivered at the Enugu Division per Dongban-Mensem, JCA (AHTW).

The Preliminary Objection raised by the Counsel to the Respondent must be deemed abandoned having not been moved at the hearing of the appeal and is of no legal consequence. The learned Counsel to the Respondent was not present at the hearing of the appeal despite having been duly served with Hearing Notice. However, the Counsel to the Respondent had earlier filed a brief of argument and the learned Counsel to the Appellant urged the Court to deem the Respondent’s brief as duly argued.

By virtue of Order 19 (9) (4) of the Court of Appeal Rules, 2021, the brief of the Respondent is hereby deemed as having been duly argued. Martin Omohwo, Esq., of learned Counsel to the Appellants distilled seven (7) issues for determination to wit; 1. Whether the Plaintiffs are the landlords of the landed property occupied by the Defendant. (Ground 5). 2. Whether Exhibits N and P were letters of intent or invitation to treat or offer to pay rent; (Ground 1). 3. Whether the Defendant impliedly accepted the Plaintiffs’ offer to pay rents for the premises it is occupying. (Ground 2). 4.

Whether there was a valid and enforceable contract between the Plaintiffs and Defendant, and thus whether the Plaintiffs proved their claims as to be entitled to the reliefs which they sought before the lower Court. (Grounds 3 and 7). 5. Whether the Plaintiffs are at liberty to convert their relationship with the Defendant from tenancy at will to rent paying tenancy instead of enforcing the judgments that have gone in their favour by employing the legal modes of execution of such judgments. (Ground 4). 6.

Whether the lower Court considered the Plaintiffs claim in paragraph 72 (g) of their Statement of Claim and if not whether it ought to have granted it in the alternative. (Ground 6). 7. Whether the lower Court was right to have dismissed the Plaintiff’s suit in its entirety whereas it had found that they were the owners/title holders of the land occupied by the Defendant. (Ground 8). Prof. F. M. Kwede, of learned Counsel to the Respondent distilled three (3) issues for determination to wit: 1.

Whether from the facts of this case, and borne out by the record of appeal there exists any enforceable tenancy contract between the Appellants (as Plaintiffs in the lower Court) and the Respondents (as Defendant in the lower Court). Distilled from grounds 1, 2, 3, 4, 5 and 7 of the Appellants’ Amended Notice and Grounds of Appeal dated and filed 13/7/2020, moved and granted on the 8th day of February, 2021. 2. Whether the lower Court could have granted the Appellants’ claim in paragraph 72(g) of their statement of claim or grant same in the alternative.

Distilled from ground 6 of the Appellants’ Amended Notice and Grounds of Appeal dated and filed on 13/7/2020, moved and granted on the 8th day of February, 2021. 3. Whether the fact that the Court resolved issues 1 and 2 as formulated by the Appellants at the trial Court in favour of the Plaintiffs but found that the defendant was a party to only Exhibit G, the Court was not right to have dismissed the entire suit which was strictly about tenancy. Distilled from ground 8 of the Appellants’ Amended Notice and Grounds of Appeal dated and filed 13/7/2020.

Moved and granted 8th day of February 2021. A cursory look at the issues raised by both the Appellants and the Respondent would reveal that both parties have raised very similar issues for determination which all revolve around the fourth, sixth and seventh issues raised by the Appellants. It is clear that the grouse of the Appellants in its entirety is and can be effectively resolved by the determination of Issues four (4), six (6) and seven (7), which are very similar to issues raised by the Respondent. All the other issues distilled are verbose and unduly repetitive.

Accordingly, this appeal shall be determined on the issues distilled by the Respondent, issues 2 and 3 shall be taken together. ISSUE ONE The learned Counsel to the Appellants submit that having confirmed that the Appellants are the owners of the property occupied by the Respondent, the trial Court ought to have proceeded to confirm the Appellants as the Landlords of the Property as long as the Respondent is in occupation of same whether as a Tenant at will or rent paying Tenant.

That it is not a tenancy agreement that confers on a property owner the status of Landlord, but the status of owning the property and the occupation of same by another party under any or no agreement. Relies on the definition of Landlord and Tenant under Section 2 (1) of the Recovery of Premises Law, Laws of Northern Nigeria, 1963, Vol. III, Section 2 of the Plateau State Rent Control and Recovery of Premises Edict No. 1 of 1998 and ORHUNHUR V. IVEVER (2015) 1 NWLR (PT. 1439) 192. Submits that the trial Court wrongly applied the case of BPS CONSTR. & ENGR. CO. LTD. V.

F.C.D.A. (2017) 10 NWLR (PT. 1572) 1 and wrongly referred to Exhibits “N” and “P” as invitations to treat. That a contract may be verbal or written and that a tenancy contract is not the same as other contracts because in tenancy contracts, the Landlord unilaterally fixes the rent as the Appellants did in Exhibits “N” and “P” and then it is left for the tenant to either accept or reject but the Respondent chose to remain silent which is an implied acceptance by the Respondent because the Respondent remained on the premises.

Cites Section 75, Evidence Act, Order 25, Rule 25 of the High Court (Civil Procedure) Rules of Plateau State, DASPAN V. MANGU LOCAL GOVERNMENT COUNCIL (2013) 2 NWLR (PT. 1338) 203, UWEMEDIMO V. M.P. UNLTD. (2011) 4 NWLR (PT. 1236) 80, COOP. DEV. BANK PLC V. EKANEM (2009) 16 NWLR (PT. 1168) 585 and ZENON PETROLEUM & GAS V. IDRISIYYA LTD (2006) 8 NWLR (PT. 982) 221.

It is the submission of the learned Counsel to the Appellants that their failure to enforce the previous judgment of the lower Court in their favour was because of the intervention of the District and Village Heads who convinced them not to evict the Respondent but convert them to tenants and they considered that they are also indigenes of the Respondent. That declaratory judgments cannot be enforced unless under a separate action initiated to enforce them. Relies on ENEKWE V.

I.M.B. (NIG.) LTD (2006) 19 NWLR (PT. 1013) 146 and urges the Court to hold that there is an implied contract between the Parties and grant the reliefs sought in Paragraph 72 (c), (d), (e) and (f) of the Statement of Claim. Further submits that the defence of bonafide claim of ownership does not avail the Respondent because in Suit No. PLD/BL12/2010, the lower Court found that the Respondent is a trespasser and a cost of N250,000 (Two Hundred and Fifty Thousand Naira) was awarded against the Respondent.

Responding, the learned Counsel to the Respondent states that the ingredients of a valid contract are offer, acceptance and consideration and there has never been any dealing whatsoever in respect of tenancy between both Parties from which the issue of acceptance by conduct could be inferred. That the case of DASPAN V. MANGU LOCAL GOVERNMENT cited by the Appellants is distinguishable from the instant case because there was an existing contract already in the former case while there is no tenancy agreement whatsoever between the parties in the latter case. Cites ABBA V. S.P.D.C.N.

LTD (2013) 11 NWLR (PT. 1364) 86 and NJIKONYE V. MTN NIG. COMM. LTD (2008) ALL FWLR (PT. 413) 1343. Further states that the Appellants rather than enforce the judgments in their favour chose to convert the enforcement of the said judgments to tenancy. That the submission by the Appellants that the Respondent is not occupying the premises as a bonafide owner cannot be correct and it is one thing for a person to be the owner of a property and an entirely different thing for another person in occupation of the said property or land to create a landlord-tenant relationship.

Urges the Court to discountenance issues 1-5 canvassed by the Appellants as same amount to their ipse dixit and non sequitur. Section 40 of Rent Control and Recovery of Residential Premises, Edict No. 9 defines the term “landlord” thus; “Landlord in relation to any premises means the person entitled to the immediate reversion of the premises or if the property therein is held in joint tenancy or tenancy in common, any of the persons entitled to the immediate reversion… ” (See COKER V. ADETAYO & ORS (1996) LPELR – 879 (SC).

Section 2 (1) of Recovery of Premises Act Cap. 193 defines the word “tenant” to include any person occupying premises whether on payment of rent or otherwise but does not include a person occupying premises under a bonafide claim to be the owner of the premises. See SOBAMOWO V. FEDERAL PUBLIC TRUSTEE (1970) LPELR – 3078 (SC), ABEKE V. ODUNSI & ANOR (2013) LPELR – 20640 (SC) and PAN ASIAN AFRICAN CO LTD V. NICON (1982) LPELR – 2898 (SC).

The crux of the Appellants’ claim at the trial Court is that based on the several judgments naming the Appellants as the owners of the land in dispute, the Appellants now have a tenancy agreement with the Respondent. The Appellants came to that conclusion based on the letters of demand for rent the Appellants sent to the Respondent in Exhibits “N” and “P”. Both parties acknowledge and concede that prior to the said letters of demand, there was no communication or agreement between the Appellants and the Respondent on the issue of tenancy.

A tenancy relationship is established and formed by an agreement entered into by the landlord who is the owner of the premises and the tenant, who is desirous of the use and enjoyment of possession of the said premises on the terms and conditions freely agreed upon by the both of them. See DICKSON & ANOR V. ASSAMUDO (2013) LPELR – 20416 (CA). Tenancy like any other contractual agreement is bound by the rules of contract.

For a valid contract to exist, three elements must be present. These elements are offer, acceptance and consideration, without which a contract is not valid. This is so because there must be consensus ad idem, a meeting of the mind and mutuality of purpose for a contract to be binding on the Parties involved. In the case of BILANTE INTL LTD V. N.D.I.C (2011) LPELR – 781 (SC) the Apex Court held that: “To constitute a binding contract between parties, there must be a meeting of the mind often referred to as consensus ad idem. The mutual consent relates to offer and acceptance.

An offer is the expression by a party of readiness to contract on the terms specified by him which if accepted by the offeree gives rise to a binding contract. The offer matures to a contract where the offeree signifies a clear and unequivocal intention to accept the offer. See Okugbule & Anor v. Oyagbola & Ors (1990) 4 NWLR (Pt. 147) 723. It should be reiterated that in order to establish that parties have formed a contract, there must be evidence of consensus ad idem between them.” Per Fabiyi, J.S.C. (Emphasis mine). (See also TSOKWA OIL MARKETING CO. (NIG) LTD V.

BANK OF THE NORTH LTD (2002) LPELR – 3268 (SC) and FASSASSI V. ZAMFARA STATE GOVT & ANOR. (2019) LPELR – 49323 (CA). The elements that must exist in a contract to make it valid and binding on the parties were expounded in the case of BPS CONSTRUCTION & ENGINEERING CO. LTD V. FCDA (2017) LPELR – 42516 (SC) thus: “…Contract is defined as an agreement between two or more persons which creates an obligation to do or not to do a particular thing.

Its essentials are competent parties, subject matter, a legal consideration parties, subject matter, a legal consideration, mutuality of agreement and mutuality of obligation. Lamoureu v. Burrillvillle Racing Ass’n 91 R. 194, 161 A.2d 213, 215… The basic elements of binding contract are therefore offer, acceptance/consideration, capacity to contract and intention to create a legal relationship. See also Alfotrin Ltd. Vs A.G.

Federation & Ors. (1996) 9 NWLR (Pt. 475) 634 AT 656 H; (1996) LPELR-414 (SC) AT 29 B – D per Iguh, JSC to wit: “To constitute a binding contract, there must be an agreement in that the parties must be in consensus ad idem with regard to the essential terms and conditions thereof; the parties must intend to create legal relations and the promise of each party in a simple contract, not under seal, must be supported by consideration.

There must be a concluded bargain which has settled all essential conditions that are necessary to be settled and leaves no vital term or condition unsettled.” Per Kekere-Ekun, J.S.C. (Emphasis mine). From the totality of evidence adduced before the trial Court, can it be rightly said that the Appellants established the existence of the abovementioned elements of a valid contract?

The evidence of the Appellants at the trial is that the issue of Tenancy was first brought up by the Ward and District Heads in an attempt to convince the Appellants not to evict the Respondent following the judgment in the Appellants’ favour. The Appellants do not deny that there was no communication with the Respondent on the issue of tenancy and rent payable except for the letters of demand in Exhibits “N” and “P”. It is not in dispute that there was no discussion on rent payable by the Respondent.

Infact, the Appellants have stated that it is their right as Landlords to unilaterally fix the amount to be paid as rent by the Respondent who is its Tenants. The rider here is how did the Appellants become Landlords? The Appellants gave evidence that since the lower Court have declared them owners of the premises in dispute, they have automatically become Landlords over the Respondent who is in occupation of the premises. This assumption by the Appellants could not be more farther from the truth. There is a whole world of difference between an Owner and a Landlord.

This is because in order to become a Landlord, there has to be someone who has agreed to become a Tenant to the Landlord. ​ The Appellants sent letters to the Respondent demanding for rent and assumed that was enough to form a tenancy relationship between the Parties. However, the Respondent did not reply nor comply with the letters and the Appellants have urged this Court to find that acceptance could be inferred from the silence of the Respondent. I am well guided by the decisions of the Apex Court and this Court that abound on the issue of offer and acceptance.

I crave indulgence to reproduce extensively the finding in the case of ASHAKACEM PLC V. ASHARATUL MUBASHSHURUN INVESTMENT LTD (2019) LPELR – 46541 (SC) which also deals with the issue of correspondence between parties. The Apex Court held that: “In this instance, Exhibit M contains the respondent’s dual requests on upward review of the contract prices of LPFO supplied to the appellant’s Kano and Ashaka storage tanks. For LPFO supplied to Kano the respondent had requested for a review from N59.50 to N69.50 per litre.

For supplies to Ashaka, the respondent offered to supply LPFO at N75.00 per litre as against the contract price of N65.00 per litre. Exhibit E is the reply to Exhibit M which is silent on the request for upward review of supplies. No evidence was adduced to show that appellant approved in writing the respondent’s request on the new contract price offer of N69.50 per litre or any other price for supplies to Kano storage tank.

The implication of what is on ground is that an offer of the upward review remained unaccepted and so it cannot be said that there was a valid contract in the absence of the unconditional or unqualified acceptance of an offer in order to have a valid contract on the offer to supply at N69.50 of LPFO. Also there was no offer to supply at N75.00 per litre. On a scenario such as the present, I rely on the following cases on the need for there to be unqualified acceptance of an offer in order to have a valid contract. (1) OMEGA BANK PLC v O.B.C. LTD (2005) 8 NWLR (Pt. 928) 547 at 575 Para A.

“In order to decide whether the parties have reached an agreement, it is usual to inquire whether there has been a definite offer by one party and an unqualified acceptance of that offer by another. It is the law of contract that the letter of acceptance must unqualifiedly accept the particular offer”… “And before any contract or agreement can be said come into existence, in law, there must be an unmistaken and precise offer and unconditional acceptance of the terms mutually agreed upon by the parties.

In other words, the parties to the agreement must be in consensus ad idem as regards the terms and conditions freely and voluntarily agreed upon by them. Both sides to the contract must be clear as to what the more fundamental term and crucial terms of the agreement connote before the agreement can be said to come into legal effect.” Per Peter-Odili, J.S.C. (Emphasis mine). The Appellants cannot decide for the Respondent, it is the Respondent that reserves the right to freely and voluntarily decide whether or not to enter into a tenancy agreement with the Appellants.

In an earlier decision of the Apex Court, it was declared that: “The position in law is stated in Halsbury’s Laws of England, 3rd Edition Volume 8 page 72 as follows:- “126. Mode of acceptance. An offer cannot be accepted by anyone except the person to whom it is made, and acceptance means the assent of that person, signified in the mode required by the terms of the offer.” Per Coker, J.S.C. (Emphasis mine). See AFOLABI V. POLYMERA INDUSTRIES (NIG.) LTD (1967) LPELR – 25340 (SC). The Appellants contend that acceptance could be inferred by the silence and conduct of the Respondent.

This submission is not applicable in the instant case. This is because for acceptance to be inferred from the silence or the conduct of a party, this conduct must be positively geared towards the fulfilment or performance of the contract. For instance, if Party A tells Party B to supply chairs to Party A and Party B without communicating acceptance goes ahead to supply the Chairs. This would be interpreted as acceptance by conduct. In B. F. I. GROUP V.

BUREAU OF PUBLIC ENTERPRISES (2007) LPELR – 8998 (CA), this Court declared that: “The conduct of the parties must be unequivocally traceable to the transaction to constitute acceptance. Where there is a missing link between the conduct of the parties and the transaction, a Court of law will not be prepared to hold that a valid contract exists between them. An acceptance of offer by conduct will amount to proper acceptance only if it is clear that the offeree did the act with the intention of accepting the offer. See Orient Bank (Nig.) Plc v.

Bilante International Ltd (1997) 8 NWLR (pt 515) 37 at 77 per Tobin: Majekodunmi v. NBN (1978) 3 SC 119, Chagoury v. Adebayo (1972) NCLR 384, UBN Ltd v. Ozigi (1991) 2 NWLR (pt. 176) 677. There must be positive evidence from which the Court may infer an acceptance. This may consist in words, in writing or in conduct. The acceptance must be communicated to the offeror.” Per Peter-Odili, JCA (AHTW). (Emphasis mine). Similarly, in the case of JEGEDE V.

MAYOR ENGINEERING CO LTD (2013) LPELR – 20284 (CA), this Court held thus: “In this case, the lower Court concluded as follows on the issue of contract – “…Parties can only be said to have entered into a validly binding contract if there is evidence of the following: offer, unqualified acceptance, consideration, intention to enter into a legally binding contract on the terms agreed on … I am afraid I do not think the contents of those documents necessitate my drawing such an inference especially when they are solely produced by the claimant. ..

Assuming that Exhibit “A” is the Claimant’s offer of his services as a distributor and the alleged signature of the Defendant’s Chairman on Exhibit “A” is proof of acceptance of this offer, there is nothing on Exhibit “A” or any of Claimant’s other documents suggesting and or proving [his] acceptance of the offer on the terms claimed by the Claimant.” Obviously, the lower Court’s decision cannot be faulted – for a contract to exist, there has to be an offer by one party to another and an acceptance by the person to whom the offer is addressed.” Per Augie, JCA (AHTW). (Emphasis mine). (See also MIKANO INTL LTD V.

EHUMADU (2013) LPELR – 20282 (CA). The Appellants placed heavy reliance on Exhibits “N” and “P” to prove that there exists a tenancy relationship between the parties. Exhibits “N” and P are at best Offers made to the Respondent who received the letters but did not respond. It cannot be said that the Respondent accepted this offer. The conduct of the Respondent by remaining on the premises cannot be interpreted as a positive conduct towards the fulfilment of a Tenancy.

This is because the Respondent believed that it has bonafide claim of right over the premises according to DW1 who stated that it was different Communities that donated the land the Respondent is occupying and the Appellants have been adequately compensated for their own portion by the employment given to the Appellants’ brother, Mark Maram. (See Paragraphs 24 and 25, Page 50 of the Records). By virtue of the definition of Landlord and Tenant above, the Respondent is excluded from the category of being a Tenant because of the bonafide claim of right over the premises.

I agree with the learned Counsel to the Respondent that the case of DASPAN V. MANGU LOCAL GOVERNMENT (SUPRA) is distinguishable from the instant case because there were series of correspondences between the parties from which this Court drew the inference of a contract from. This is not the situation in the instant case because the Respondent never responded to the letters from the Appellants demanding for rent.

In drawing the inference of a contract between the parties, this Court in DASPAN V MANGU LOCAL GOVERNMENT (SUPRA) held thus; “It is noteworthy that the Respondent did not deny the above correspondence and thus, a series of other correspondences followed which gave the strong impression that there was a definite meeting of minds between the Appellant and the Respondent somewhere along the line… It is possible for a contract to emerge from series of correspondence between two persons.

But it must be apparent when the correspondences exchanged are read together that the parties have come to an agreement. Exhibits 16-18 as well as 21-25 are some of the correspondences exchanged between the Appellant and the Respondent which in my opinion culminated into the contract between them and the subject matter or cause of action in the instant appeal matter.” Per Ekpe, JCA. (Emphasis mine). There is clearly no evidence of any correspondences on rent or tenancy between the Appellants and the Respondent in the instant appeal.

The Appellants cannot unilaterally foist or shove a tenancy down the throat of the Respondent simply because they are the owners of the premises. The Respondent has the freewill to choose and the Appellants also have other legal avenues where they could have exercised their right of ownership. Yet the Appellants failed, refused or neglected to explore those channels and are insisting on a tenancy relationship with the Respondent. The legal maxim, equity aids the vigilant and not the indolent readily comes to mind in the circumstance. See A.G. RIVERS STATE V. UDE & ORS (2006) LPELR – 626(SC).

The Appellants acquiesced in the alleged unlawful possession of their land. Such inaction has legal consequences. See UKWA & ORS V. AWKA LOCAL COUNCIL AND ORS (1965) ALL NLR 364 and ODUOLA & ORS V. IBADAN CITY COUNCIL & ANOR (1978) LPELR-2255 (SC). Issue one is resolved in favour of the Respondent and against the Appellants.

ISSUES TWO AND THREE The learned Counsel to the Appellants submits that the trial Court did not consider the Appellants’ alternative claim in Paragraph 70 of the Statement of Claim for the Respondent to vacate the premises having found that the Appellants are the owners of the premises in dispute.

That the Appellants are entitled the reliefs in Paragraph 72 (a) and (b) of the Statement of Claim which is a consequential order and urges the Court to grant the said relief. ​ The learned Counsel to the Respondent responds that a non-party to a suit can never be bound by the decision in respect thereof. That this case is the first one that involves the Respondent and the previous judgments in favour of the Appellants by the lower Courts do not cover the particular land in dispute. Relies on AKINSANYA V. A.G. FED. & 1 OR. (2013) ALL FWLR (PT. 668) 941.

It is the submission of the learned Counsel to the Respondent that by virtue of Section 15 (1) of the Plateau State Limitation Law, the Appellants are statute barred from enforcing Exhibits “A1”, “A2” and “C” which occurred in 1974 and 1994 respectively. Submits that the only judgment that involves the Respondent is Exhibit G which the Appellants have admitted that they have taken possession of the portion that was subject of award thereof.

That the case before the trial Court is not for declaration of title to land but strictly for a declaration that a landlord-tenant relationship exists between the Appellants and the Respondent. Further submits that the Appellants failed to discharge the obligation bestowed upon them by law to serve the Respondent with all the appropriate quit notices required by law to have warranted the Court to make an order giving vacant possession to the Appellants. Cites BFI GROUP V. BUREAU OF PUBLIC ENTERPRISE (2013) ALL FWLR (PT. 676) 444 and urges the Court to dismiss the appeal for lacking in merit.

From the Statement of Claim filed by the Appellants as Plaintiffs at the trial Court, it is abundantly clear that the grouse of the Appellants is not the ownership of the land but tenancy and the rent. (See Pages 4-13 of the Records). It is not in dispute that the case at the trial Court is not for the declaration of title to land but a declaration that a tenancy relationship exists between the Parties. However, the Appellants have urged this Court to order that the Respondent deliver up vacant possession of the premises in dispute to the Appellants.

It is curious that the Appellants have chosen this line of argument which is not applicable in the instant case. The law is unequivocal that parties are bound by their pleadings, the case is for tenancy and rent therefore the Appellants are not allowed to sneak in the issue of possession under whichever guise as they did in the instant case under reliefs sought. See BAKARI V. OGUNDIPE & ORS (2020) LPELR-49571 (SC), IKOTUN V. OYEKANMI & ANOR. (2008) LPELR-1485 (SC), IDACHABA & ORS V. UNIVERSITY OF AGRICULTURE, MAKURDI & ORS (2021) LPELR- 53081 (SC) and WASSAH & ORS V.

KARA & ORS (2014) LPELR- 24212 (SC). As the trial Court has duly noted in page 317 of the Records, several judgments of the Lower Court and this Court abound to the effect that the Appellants are the owners of the land in dispute and the trial Court will not succumb to the temptation of the Parties by analyzing the said judgments. This Court shall also not succumb to the temptation of revisiting its own judgment. Courts are estopped from sitting on appeal over their own decision. Issues 2 and 3 are resolved in favour of the Respondent and against the Appellants.

Having resolved all the issues in favour of the Respondent and against the Appellants, I find that this appeal lacks merit and it is hereby dismissed. Accordingly, the decision of the trial Court in Suit No. PLD/J27/2016 delivered on the 24th of January, 2018 Coram J. P. Gang (J). is hereby affirmed.

I make no order as to cost.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the judgment just delivered by learned brother, Monica Bolna’an Dongban-Mensem, P.C.A. I agree that the appeal has no merit and should be dismissed. ​ A landlord is someone who rents a room, building or piece of land to someone else. See Blacks Law Dictionary 10th Edition. ​

The Appellants did not show the trial Court that they gave any property on rent to the Respondent. It was not even shown that the parties discussed the issue of rent not to mention reaching an agreement to this effect. The appellants did not claim for declaration of title to land. It is the law that a party is bound by his claim before the Court and he is not permitted to make a case outside his claim. See the decision of this Court in Jev & Anor v Iyortyom & Ors (2012) LPELR-9291.

A judgment obtained in Court could not translate to a tenancy agreement between the parties as erroneously assumed by the Appellants. The Appellants having hinged their claim on this non-existent tenancy were wrong to expect the Court below to declare them entitled to the land. For the more elaborate reasons contained in the lead judgment, I too dismiss the appeal and affirm the judgment of J.P. Gang J. I abide by all other orders in the lead judgment including the order as to costs.

IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have read in draft the judgment just delivered by my Noble Lord, Hon. President Court of Appeal, Monica B. Dongban-Mensem, HPCA and I am in total agreement with his reasoning and conclusion that this appeal lacks merit and is accordingly dismissed by me. I abide by the consequential orders therein contained ordering no costs.

Judgment

MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of the Federal Capital Territory, Abuja, presided by Hon Justice A. S. Umar delivered on the 27th of September, 2017. The Respondent instituted an action by a writ of summons dated and filed on the 4th of June, 2013 claiming the following reliefs against the Appellant: 1.2.

A Declaration that the Defendant fraudulently deceived and misled the Plaintiff into believing that the defendant paid for and owned the House known as Block 17A (Old 605A) Bamako Street Wuse Zone 1 Abuja FCT, sold by the Federal Government during the sale of government houses by the Federal Capital Territory Administration which he fraudulently sold to the Plaintiff at N11,000,000.00 (Eleven Million Naira) and collected full value. 1.3.

A Declaration that the defendant fraudulently converted the money of the plaintiff in the sum of N11,000,000.00 (Eleven Million Naira) only into his personal use and fraudulently instituted suit No: FCT/HC/CV/103/2007 with his wife as plaintiff and him as Defendant. 1.4 An Order directing the Plaintiff to take possession and use for her own benefit the three bedroom flat Bungalow, otherwise known as and called Block 39, 53 Road FHA Supreme Court Quarters, Phase IV Kubwa, Abuja FCT being a House bought at the rate of 4,300,00.00 (Four Million Three Hundred Thousand Naira) only with part of the money fraudulently converted from the plaintiff by the defendant, 1.5.

An Order Directing the Defendant to pay the balance of N6,700,000.00 (Six Million Seven Hundred Thousand Naira) only being the remaining balance of the money converted from the Plaintiff by the Defendant with 20% interest on the money from 17/8/2007 till judgment is delivered and 15% interest till judgment sum is liquidated. 1.6. In the Alternative to relief 3 and 4 1.7. An Order directing the defendant to pay the plaintiff the sum of N45,000,000.00 (Forty Five Million Naira) only being the current worth of the property (Block 17A (Old 605A) Bamako Street Wuse Zone 1, Abuja.) 1.8.

An Order directing the Defendant to pay the sum of N3,000,000.00 (Three Million Naira) only to the Plaintiff as general damages for breach of contract and for the severe embarrassment suffered by the plaintiff as a result of the action of the defendant. 1.9. An Order Directing the defendant to pay the sum of N3,525,000.00 (Three Million Five Hindered and Twenty Five Thousand Naira) only to the Plaintiff being the amount expended by the Plaintiff in engaging lawyer to prosecute her case for her. 1.10.

An Order Directing the Defendant to render account of rent collected on block 39, 53 Road FHA Supreme Court Quarters Phase IV Kubwa Abuja from 14th September, 2007 to when judgment is given (We refer to page 8-10 of the records) Dissatisfied with the judgment of the lower Court the Appellant appealed by a notice of appeal filed on the 24th of November, 2017.

The grounds of appeal shorn of their respective particulars are as follows: GROUNDS OF APPEAL GROUND 1: ERROR IN LAW: The learned trial Court erred in law and therefore came to a wrong conclusion when it indirectly sat on appeal or reviewed the judgment in SUIT NO: FCT/HC/CV/103/2007 between MRS. MARIAMÄGAYAKI MAREM (Plaintiff) and (1) MR. ANDREW MAGAYAKI MAREM (2) MRS. GRACE ISTIFANUS (Defendants) delivered by Hon. Justice Sylvanus C Oriji of the FCT High Court, a Court of coordinate jurisdiction.

GROUND II: ERROR IN LAW: The learned trial Court erred in law and therefore came to a wrong conclusion when it held that Court nullification of the transaction between the Plaintiff and the Defendant does not qualify as frustration. GROUND III: ERROR IN LAW: The learned trial Court erred in law and came to a wrong conclusion when it held that the Defendant never believed he had the right to sell the property Block 17A (Old 605A) Bamako Street, Wuse Zonel, Abuja, Fcr.

GROUND IV: ERROR IN LAW: The learned trial Court erred in law and came to a wrong conclusion when it held that the Plaintiff’s payment for the property Block 17A (Old 605A) Bamako Street, Wuse Zone 1, Abuja, FCT Was in error.

GROUND V: ERROR IN LAW: The learned trial Court erred in law and came to a wrong conclusion when it held that the Defendant’s failure to file a defence to the wife’s suit against him and the Plaintiff amounts to a clandestine attitude and support for the wife and abandonment of the Plaintiff to her fate. ​From the onset, it is important to note that at the last sitting of the Court learned counsel for the Appellant filed a notice of withdrawal of appearance; the Court ordered that the Appellant be served personally.

The Appellant was indeed served at his address at No 17A Bamako Street, Wuse Zone 1. The Appellant’s brief already filed was adopted as argued in his absence, pursuant to Order 19 Rule 9 (4) of the Rules of this Court 2022. From the grounds of appeal filed, the following issues were formulated on behalf of the Appellant in the brief settled by Charles H. T. Uhegbu Esq., filed on 5th of June, 2020 but deemed properly filed on the 24th February, 2022: ISSUES FOR DETERMINATION: 1.

Whether the lower Court had the jurisdiction to hear and determine the case in SUIT NO: FCT/HC/CV/3427/13 having been heard and determined by another Court of co-ordinate jurisdiction in SUIT NO: FCT/HC/CV/103/2007? 2. Whether Honourable Justice A. S. Umar in SUIT NO: FCT/HC/CV/3427/13 did not sit on appeal over the judgment of Honourable Justice Sylvanus C Oriji in SUIT NO: FCT/HC/CV/103/2007? 3. Whether a Court’s nullification of a sale does not amount to the frustration of the transaction? 4.

Whether the head of a family should disbelieve himself of having no right to sell his property wherein he lives with his family? 5. Whether the buying of the house by the Respondent in spite of her having knowledge of a “caveat emptor” notice was an error instead of a deliberate act? 6. Whether the failure of the Appellant to file a defence amounts to the abandonment of the Respondent to her fate?

In response, Ishaku Balarabe Muhammad Esq., of counsel for the Respondent adopted issue three of the Appellant as the sole issue for determination in the brief filed on the 23rd of December, 2020 and completely ignored the other issues raised by the Appellant. The Respondent filed a preliminary objection which is argued in the Respondent’s brief from pages 6 to 12. I will determine the preliminary objection first before going into the substance of the appeal.

PRELIMINARY OBJECTION: It is submitted that the Appellant did not indicate from which ground he formulated each of the six issues; that it is not the duty of the Court to determine wherefrom the issues are formulated, and that this failure has afflicted the issues with incompetence; learned counsel referred the Court to MAGIT V UNIVERSITY OF MAKURDI (2006) ALL FWLR part 298 page 1313 and IWUOHA V NIPOST LTD (2003) 8 NWLR part 822 page 308.

That also, the Appellant did not seek extension of time to file his brief, time for doing so having elapsed; the record having been compiled and transmitted on the 28th of March, 2020, the Appellant’s brief was not filed within 45 days as required by law. The consequence of this failure is that the appeal be dismissed; learned counsel referred to KRAUS-THOMSON ORGANISATION V N.I.P.S. (2004) 17 NWLR part 901 page 44 and OGBU V URUM (1981) LPELR-2290-SC.

Learned counsel further submitted that grounds one, two, four, five and six of the notice of appeal are incompetent and liable to be struck out; he referred the Court to MEKWUNYE V EMIRATE AIRLINES (2019) 9 NWLR part 1677 and ORIANZI V A.R. RIVERS STATE (2017) 6 NWLR part 1561 page 224; it is also contended that grounds 1, 2, 4, 5 and 6 should be struck out because the issues were not raised, tried and considered at trial; MRS ENO OKON EKPUK V MRS BASSY ITA OKON (2002) 5 NWLR part 760.

That issues 1, 2, 4, 5 and 6 were not raised at the lower Court, and leave of this Court was not obtained before they were argued, the effect of which it is contended makes them liable to be struck out. It is submitted in response that all the issues formulated by the Appellant are properly distilled from the grounds of appeal; that issue one bothers on jurisdiction, because the Appellant raised the issue of jurisdiction at trial when he raised the issue of res judicata.

That issue two is not a fresh issue but arose from the lower Court’s reference to and review of the judgment of a coordinate Court, and it is from ground one; and also that issue 4 is from ground 11, arising from the lower Court’s holding that exclusive possession of the property in dispute.

Learned counsel submits that issue five is ground 4 and arose from the trial Court’s reference to payment for the house by the Respondent to the Appellant as a mistake, as such it is not a fresh issue; and issue six on the other hand is from ground five, and arose from the Court’s reference to the Appellant being left heartlessly to his fate. ​RESOLUTION OF PRELIMINARY OBJECTION: Parties are not only expected to formulate issues from the grounds of appeal but also to indicate from which of the grounds such issues are formulated.

Appeals are not argued on the grounds of appeal, but on the issues which are formulated from the grounds of appeal. The primary objective of formulating issues for determination in an appeal is to fix and clearly delimit the questions to be decided by the Court in the appeal. Therefore, once the parties have identified the issues for determination from the grounds of appeal, counsel cannot base their arguments on the grounds of appeal.

That being so, issues for determination must arise from the grounds of appeal filed, and therefore arguments in support of the issues must be traced to the issues and the grounds of appeal from which such issues were framed. The corollary of the above is that, an appeal can only be determined on the issues arising from the grounds of appeal. ​It follows that, any argument on an issue not covered by the ground of appeal is liable to be discountenanced.

Arguments of counsel must therefore, as of necessity, be confined to the issues formulated for determination, and which issues must necessarily flow from the grounds of appeal; See ADELAJA V. FANOIKI (1990) 2 NWLR (PT.131) P.137 AT 148; FATUNBI V. OLANLOYE (2004) 6-7 S.C. P.68; JOSEPH SALIBA V. RODA YASSIN (2002) 3 S.C.M P.96; MR. SUNDAY ADEGBITE TAIWO V. SERAH ADEGBORO & 2 ORS (2011) 5 S.C. (PT. II) P.179 AND REAR ADMIRAL FRANCIS ECHIE AGBITI V. THE NIGERIAN NAVY (2011) 1-2 S.C. (PT. III) P.144.

While it is very important for counsel to relate issues to grounds, failure to do so can hardly elicit the striking out of such issues without giving considerable thought to the justice of the case. Courts are much more refined in their approach to failings in this regard. They are guided by the interest of justice. On the other hand, Courts are not so lenient where counsel proliferates issues or raises issues from abandoned grounds.

All said, the interest of justice will not be served by striking off issues simply for failure to identify the grounds from which they arose. ​On the issue of whether the Appellant’s brief was filed out of time; this Court fails to see the logic in responding to the brief if it was indeed incompetent. In any case on the face of it, fees appear to have been paid on the process and the fact that the Respondent has filed his brief in response means he has acquiesced. Most importantly, this Court deemed the Appellant’s brief as properly filed on the 24th of February, 2022. That settles this issue.

In regard to the relationship of the issues to the ground, I am in agreement with learned counsel for the Appellant that clearly issue one is from ground one; issue two is from ground one; issue four is from 11; five from ground 4 and issue six is from ground 5. It is for these reasons that I now dismiss the preliminary objection without much ado. SUBSTANTIVE APPEAL: ISSUE ONE: Whether the lower Court had the jurisdiction to hear and determine the case in SUIT NO: FCT/HC/CV/3427/13 having been heard and determined by another Court of co-ordinate jurisdiction in SUIT NO: FCT/HC/CV/103/2007?

It is submitted for the Appellant while referring extensively to NWORGU V NJOKU (2001) 14 NWLR part 734 page 539, that justice S. C Oriji had adjudicated on this matter and delivered a judgment in FCT/HC/CV/103/2007, yet the Respondent failed to appeal and instead filed a fresh suit before Justice A. S. Umar also of the FCT High Court, who heard and delivered his judgment in FCT/HC/CV/3427/2013.

That the parties and the subject matter are the same and the Courts are of coordinate jurisdiction, and the issue of lack of jurisdiction was actually raised in a preliminary objection but the objection was dismissed. Learned counsel urged the Court to dismiss this appeal for this reason. RESOLUTION OF ISSUE ONE: The learned counsel for the Respondent chose to ignore and not respond to this issue.

I do not understand the logic or sense in learned counsel to the Respondent’s arrogance in completely ignoring issues raised by the Appellant and simply choosing one issue to respond to. ​Be that as it may, it is very important to point out, for the avoidance of doubt, that it is the law that the Respondent’s brief of argument shall answer all material facts of substance contained in the Appellants’ brief of argument and contain all points raised therein which the Respondent wishes to concede as well as reasons why the appeal ought to be dismissed.

Failure of the Respondent to specifically answer the issues raised by the Appellant is fatal to the Respondent as they are deemed admitted and conceded to by the Respondent; See DANA Ltd vs. Oluwadare (2006) 39 WRN 121. The effect of failure to respond to issues raised in the Appellant’s brief of argument is that the Respondent has conceded to issues raised by the Appellant; see EIGBE VS. N.U.T (2008) 24 WRN 110 AND INAKOJU VS. ADELEKE (2008) 130 WRN 1.

Having said that, it is important to note that merely filing a suit before another Court does not necessarily invalidate that suit, even if they are Courts of coordinate jurisdiction, especially where there is nothing to show, that the subject matter and the parties are exactly the same. ​In the suit before Hon Justice S. C Orji, i.e. FCT/HC/CV/103/2007 the parties are, Mrs. Maria Magayaki Marem, as plaintiff and Mr. Andrew Magayaki Marem and Mrs. Grace Istifanus, as defendants; and the reliefs sought are: 1.

A declaration that the 1st defendant is estopped from selling block 16, flat 1, Bamako Street, Wuse zone 1, Abuja is family property. 2. A declaration that block 26, flat 1, Bamako Street, Wuse Zone 1, Abuja cannot be sold without the consent of the plaintiff. 3. A perpetual injunction restraining the defendants, by themselves, their agents, servants and privies from selling or attempting to sell block 16, flat 1, Bamako Street, Wuse zone 1, Abuja without the consent of the plaintiff. On the other hand, in suit No FCT/HC/CV/3427/13, presided by Hon Justice A. S. Umar, the parties are only Mrs.

Grace Istifanus, as plaintiff and Mr. Andrew Magayaki Marem, as defendant. Clearly from this, the parties are not the same, and once the parties are not the same the issue of res judicata cannot succeed. ln NWANERI V. ORUWA 1959 4 FS.C. 132, the Supreme Court held: “It is well known that before this doctrine can operate, it must be shown that the parties, issues and subject matter were the same in the previous case as those in the action in which the plea of res judicata is raised, ” See also Nkanu v. Onun (1977)5 SC 13 and Ekpoke v.

Usilo (1978)6-7 SC 187.” Furthermore, the reliefs sought in this subsequent suit before Hon Justice Umar are: 1. A declaration that the defendant fraudulently deceived and misled the Plaintiff into the believing that the defendant paid for and owned the house known as Block 1794 (Old 605A) Bamako Street, Wuse Zone 1 Abuja FCT, sold by the Federal Government during the sale of, government houses by the Federal Capital Territory Administration which he fraudulently sold to the Plaintiff at N11,000,000.00 (Eleven Million Naira only) and collected full value. 2.

A declaration that the defendant fraudulently converted the money of the Plaintiff in the sum of Eleven Million Naira (N11,000,000.00) into his personal use and fraudulently instituted suit No. FCT/HC/CV/103/2007 with his wife as plaintiff and himself as the 1st defendant. 3.

An Order directing the Plaintiff to take possession and use for his own benefit the three bedroom flat bungalow, otherwise known as and called Block 39, 53 Road FHA Supreme Court Quarter, Phase IV Kubwa Abuja FCT, being a house bought at the rate of N4,300,000.00 (Four Million Three Hundred Thousand Naira only) with part of the money fraudulently converted from the plaintiff by the defendant. 4.

An Order directing the defendant to pay the balance of N6,700,000.00 (Six Million Seven Hundred Thousand Naira only) being the remaining balance of the money converted from the Plaintiff by the defendant with 20% interest on the money from 17/8/2007 till judgment is delivered and 15% interest till judgment sum is liquidated. In the alternative 1. An Order directing the defendant to pay the plaintiff the sum of N45,000,000.00 only (Forty-Five Million) being the current worth of property (Block 17A (Old 605A) Bamako Street Wuse Zone 1 Abuja FCT), 2.

An Order directing the defendant to pay the sum of N3,000,000 (Three Million Naira only) to Plaintiff as general damages for breach of contract and for the severe embarrassment suffered by the Plaintiff as a result of the action of the defendant. 3. An Order directing the defendant to pay the sum of N3,525,000.00 (Three Million Five Hundred and Twenty Five Thousand Naira) only to the plaintiff being the amount expended by the Plaintiff in engaging lawyers to prosecute her case for her. 4.

An Order directing the defendant to render account of rent collected on Block 39, 53 Road FHA Supreme Court Quarters phase IV Kubwa Abuja from 14th September 2007 till judgment is given.

It is clear from these also that the reliefs sought in this case and the suit earlier filed are different; It is settled that before the doctrine of res judicata can operate, it must be shown that the parties, issues, and subject matter were the same in the previous case as those in the action in which the plea of res judicata is raised; see LADIMEJI & ANR V SALAMI & ORS (1998) LPELR-1735-SC; that not being the case; It is for these reasons that I now resolve this issue in favour of the Appellant against the Respondent. ISSUE TWO: Whether Honourable Justice A.

S Umar in SUIT NO: FCT/HC/CV/3427/13 did not sit on appeal over the judgment of Honourable Justice Sylvanus C Oriji in SUIT NO: FCT/HC/CV/103/2007? It is submitted for the Appellant that Hon. Justice A. S. Umar in FCT/ HC/CV/3427/13 sat on appeal over the decision of S. C. Oriji in SFCT/HC/CV/103/2007 because he quoted from the decision before arriving at a conclusion, that the Respondent took the case from a Court of coordinate jurisdiction to another Court of coordinate jurisdiction.

RESOLUTION OF ISSUE TWO: A convenient starting point in the resolution of this issue is an examination of instances where a Court can set aside the order of another Court of concurrent jurisdiction.

A Court of concurrent or coordinate jurisdiction can set aside the judgment or order of another Court in the circumstances where; a. The writ or application was not served on the other party, or b. The action was tainted with fraud or the Court lacks jurisdiction to entertain the action. In such a case, the judgment or order given becomes null and void, thus liable to be set aside. See the cases of; CHIEF EMMANUEL BELLO VS INEC & ANOR (2010) LPELR-767SC; WITT AND BUSCH LTD VS DALE POWER SYSTEM PLC (2007) LPELR-3499 SC.

In the instant case, the Appellant’s contention is that the lower Court merely quoted certain portions of the other Court’s decision before arriving at its own. Notwithstanding the failure of the Respondent to respond to this issue, the mere reference to a decision of another Court does not, and cannot be said to amount to sitting on appeal over that decision, after all the Court did not set aside any orders or representation made by the other Court; see UTUK V OFFICIAL LIQUIDATOR (2008) LPELR-4323-CA.

It is for these reasons the issue is resolved in favour of the Respondent, against the Appellant. ISSUE THREE:

Whether a Court’s nullification of sale does not amount to the frustration of the transaction. It is submitted for the Appellant while referring to MORGAN V MANSER (1947) 2 A.E.R 66, UNGER V PRESTON CORPORATION (1942) 1 A.E.R 200 and SAKA V IJUH (2010) 4 NWLR part 1184 page 405 frustration of a contract arises when an event occurs through no fault of either party to the agreement, which fundamentally alters it, and it is not in the contemplation of the parties, such that they could not make provision for it, in such a situation both parties to the contract would be discharged.

That in the instant case, the Appellant did not envisage the challenge to his attempt to sell the property; and also that the trial Court was in error to have held that sale was frustrated. The judgment nullifying the sale of the property thus amounts to frustration. He urged this Court to set aside the judgment of the lower Court and affirm the earlier judgment of Justice S.C. Oriji. It is submitted for the Respondent in response that the FCT High Court in suit No FCT/HC/CV/103/2007 presided by Hon justice S.

Oriji did not in its judgment of the 25th April, 2013 annul the sale of the property in dispute between the Appellant and the Respondent; and also that there was no move by the Appellant to provide the Respondent with an alternative house as claimed. That a contract discharged by frustration would be brought to an end by the operation of the law, irrespective of the wishes of the parties; learned counsel referred to A. G. RIVERS V A. G FEDRATION (2012) 52 part 1 NSCQR page 481; and that the defence of frustration does not avail the Appellants.

It is further submitted that having failed to plead frustration in his statement of defence the Appellant has no right to raise it in his address at trial; learned counsel referred the Court to ABRAHAM V OLORUNFUNMI (1991) 1 NWLR part 165.

RESOLUTION OF ISSUE THREE: What amounts to frustration is not so much in dispute between the parties, what is in dispute is whether the case at hand qualifies for one i.e. whether the requirements of the doctrine of frustration are met. ​A contract is said to be frustrated, when the intervening event is beyond the control of either party to make the performance of the contract impossible. There has to be proof by the Appellant, who claims frustration, that it was impossible for him to ensure performance of the contract of sale. See TOTAL (NIG) PLC v.

AKINPELU (2004) 17 NWLR (PT. 903) 509 and AIICO INSURANCE PLC v. ADDAX PETROLEUM COMPANY LTD (2015) 6 NWLR (PT. 1456) 597. There is no frustration in this case because prior to the sale, the Appellant knew that he did not possess exclusive ownership of the property sought to be disposed. Further, as rightly submitted for the Respondent, this was not pleaded anywhere. It is trite law that parties are bound by their pleadings; See RAMONU ATOLAGBE V. KOREDE OLAYEMI SHORUN (1985) 1 NWLR (Pt.2) 350 AT 365, paras. D-E.

Pleadings define and delimit the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the Court will be called to adjudicate between them. It is designed to bring the parties to an issue on which the Court adjudicates between them. A party is bound by his pleadings and cannot go outside it to lead evidence or rely on facts which are extraneous to those pleaded. See ALHAJI KARIMU LEMOMU & ORS. V. HADJI NOAHS ALLI-BALOGUN & ORS. (1975) 1 ALL N.L.R. 30 AT P.40.

The so called “legal battle” between the Appellant and his wife cannot qualify as frustration, because whatever ‘battle’ they had, it was about established rights and obligations, and not some unforeseen, beyond control circumstances. It is for these reasons that I now resolve this issue in favour of the Respondent, against the Appellant. ISSUE FOUR: Whether the head of a family should disbelieve himself of having no right to sell his property wherein he lives with his family?

It is submitted for the Appellant that from the Appellant’s affidavit, deposed after his wife challenged the sale of the property, the deponent believed he had power to sell the property; and that within the same period the Appellant filed a petition for annulment of his marriage, all in a bid to support the Respondent in her travails. That this shows the Appellant had the power to sell the property in dispute, and he took serious steps in favour of the Respondent during the transaction.

RESOLUTION OF ISSUE FOUR: The issue was inelegantly couched, and argued in such a way that it is difficult to make head or tail of the submissions, be that as it may, it is an elementary point to state here that arguments contained in litigant’s brief are essential for the purpose of a judicious determination of an appeal before the Court; see DIBIAMAKA v. OSAKWE (1989) NWLR (PT 107) 101; (1989) ALL NLR 472; (1989) LPELR-940 (SC) at P. 10 paras.

D-E. where it was held: “…A bad brief is a great disservice to the case the lawyer desperately wants to present and is thus of no assistance to the Court or even to counsel who, not understanding his own case, cannot put same across; See also my opinion in LASTMA v ESEZOBO (2015) LPELR-25003 (CA) at pp. 4-50; CHIMA OGBONNAYA v FIRST BANK OF NIGERIA PLC (2015) LPELR 24731 at p. 17…” An inelegant brief is still a brief that must be considered, the fact that a brief of argument is poorly written would not discharge the Court of its obligation under the law to do substantial justice to the parties in respect of an appeal before it; see: OBIORA v OSELE (1989) 1 NWLR (Pt 97) 279 at 300; AKPAN v THE STATE (1992) 6 NWLR (PT 248) 439 at 466, 471-472; TUKUR v GOVT OF TARABA STATE (1997) 6 NWLR (PT 510) 549; OMOJASOLA v PILSSON FISKO (NIG.) LTD (1990) 5 NWLR (PT 151) 434.

It is in this spirit that I now try to decipher what the arguments on this issue try to convey. I do not think it matters one way or the other whether the Appellant tried to help the Respondent or not. What matters is, did he have the authority to sell the house or not? The answer to that is No. The suggestion that the Appellant took serious steps in favour of the Respondent, believing that he had the power to sell in itself is an admission of his shortcomings.

Even if he were the head of the family, the law is that he cannot unilaterally sell what belongs to the family in the hope of somehow delivering a valid title to the Respondent whom he so desperately wants to assist; see EKPENDU V. ERIKA (1959) SCNLR 186, (1959) 4 FSC 79; ALSO ESAN V. FARO 12 WACA 135 AND ALLI V. IKUSEBIALA (1985) INWLR (PT. 4) 630. For these reasons, the issue is resolved in favour of the Respondent, against the Appellant.

ISSUE FIVE: Whether the buying of the house by the Respondent in spite of her having knowledge of a caveat emptor notice was an error instead of a deliberate act.

It is submitted for the Appellant that the finding by the trial Court that the purchase of the house with full knowledge of the caveat by the Appellant’s wife was an error, is wrong, because it was more of a deliberate act, especially in view of the fact that the Appellant’s wife personally met the Respondent and told her that the house is not for sale, and warned her not to transact any business with the Appellant; learned counsel referred the Court to IMANA V ROBINSON (1979) NSC 1.

That the Respondent decided to take a chance, and the trial Court was wrong to refer to that as an error instead of a deliberate action, learned counsel referred to MOHAMMED V KLARGESTER NIG. LTD (2002) 7 SCNJ 443. RESOLUTION OF ISSUE FIVE: “Caveat emptor”, in plain language simply means, let the buyer beware. It is a Latin maxim requiring persons dealing with property. The risk of encumbrances is on any purchaser who by the maxim is required to satisfy himself by undertaking a full investigation of title before completing his purchase.

A purchaser would be entitled to plead absence of notice only if he had made the necessary inquiries in regard of the property and still found nothing to indicate any equitable interest. In this case, there was even a direct and personal warning by the wife of the Appellant to the Respondent, not to purchase the house, but the Respondent still proceeded to take the risk. The Respondent should bear the brunt of the blatant risk she took. The trial Court was wrong to have classified it as an error in the circumstances.

Accordingly, the issue is resolved in favour of the Appellant, against the Respondent. ISSUE SIX: Whether the failure of the Appellant to file a defence amounts to abandonment of the Respondent to her fate. It is submitted that the failure of the Appellant to file a defence when his wife filed a suit against him and the Respondent before Hon Justice S.C. Oriji does not amount to an abandonment of the Respondent; especially as he gave the Respondent all the necessary support needed to enable her win the case.

That the Appellant made things difficult for his wife by filing a divorce and handing over documents of the property to the Respondent, while at the same time deposing to an affidavit in support of the Respondent. ​That it was wrong therefore for the trial Court to hold that Appellant abandoned the Respondent to her fate, because the Appellant was incapable of prosecuting his defense as a result of ill health; learned counsel referred the Court ADMINISTRATORS OF THE ESTATE OF GEN SANI ABATCHA V SAMUEL DAVID EKE-SPIFF & 2 ORS (2009) 7 NWLR part 1139 page 97.​

RESOLUTION OF ISSUE SIX: I do not see how the Appellant’s failure to file a defence makes any difference to the fortunes of the Respondent in this whole saga; the Respondent has to sink or swim on the strength of her case, and it matters little whether she got any help from the Appellant. Cases are won or lost by parties on their respective strengths and not necessarily on the help they get from sympathizers. Accordingly, this issue is resolved in favour of the Respondent, against the Appellant.

Even though issues one and five were resolved in favour of the Appellant, none of the two issues is a threshold issue, accordingly, the appeal fails for lack of merit and it is dismissed. Judgment of the lower Court is hereby affirmed. Parties to bear their respective costs.

PETER OLABISI IGE, J.C.A.: I had the privilege of reading in advance, the draft judgment of my Learned Brother MOHAMMED MUSTAPHA JCA. ​I agree with his reasoning and conclusion contained in the leading judgment that the appeal lacks merit and is dismissed. The judgment of the trial Court is affirmed. I abide by consequential Order as to costs.

HAMMA AKAWU BARKA, J.C.A.: My learned brother made available to me in draft the judgment just delivered in draft. ​Having also studied the grounds of appeal, the record of proceedings and the submissions of learned counsel on the issues agitated upon, I align myself to the reasoning and the conclusion reached in respect of the preliminary objection as well as the six issues, to the conclusions that the appeal is lacking in merit and therefore dismiss the same. I make no order as to cost.

Judgment

OLABODE RHODES-VIVOUR, J.S.C. (Delivering the Leading Judgment): By a letter dated 11 June 2008 the Appellant was given Presidential approval to import 500,000 metric tones of bagged cement into Nigeria. The importation was to commence in June, 2008 and conclude in December, 2008.

Based on the letter of approval the Appellant applied for and obtained Letters of Credit from Union Bank of Nigeria for US $41,000,000.00 (Forty One Million Dollars) and US $8,280,000.00 (Eight Million Two Hundred and Eighty Million Dollars) 80,000 metric tonnes of bagged cement arrived in Nigeria in four shipments. Three of the ships were allowed to berth. The 3rd Respondent issued instructions to the 1st Respondent to stop the importation of cement into Nigeria. The directive of the 3rd Respondent also prevented other ships with the remaining bagged cement from berthing.

The 1st Respondent accepted customs duties for the bagged cement that were allowed into the country. Entreaties to the third Respondent to lift the embargo were turned down. The third Respondent even turned down an appeal by the second Respondent to allow the ships to berth.

Frustrated the Appellant filed an action in the Federal High Court, it sued the Respondents and got a Court order on 18 December, 2009 against the Respondents. That Court ordered that the ships with the bagged cement should be allowed to berth and their cargo discharged. The Respondents did not obey the Court Order, despite a directive from the Acting President, Mr. G.E. Jonathan in March, 2010. The cargo was badly damaged and became toxic products. As a result of the actions of the Respondents, the Appellant became heavily indebted to his Bankers. To recoup his losses he instituted Suit No.

FHC/L/CS/1443/2009, against the present Respondents.

By a further Amended Originating Summons the Appellant as Applicant claim is as follows: 1.

An Order of Mandamus compelling the 2nd Respondent to wit: (a) To issue an exemption certificate for the 500,000 metric tons of cement imported or to be imported by the Applicant for which Presidential approval was granted to the Appellant and covered by the 4th Respondent from the purported ban by the President in October 2009. (b) To instruct all the relevant agencies under the Ministry of Finance including the 1st Respondent to allow the discharge and clearance of the Cargo imported or to be imported under the approval granted by the 4th Respondent in any or all Nigeria Ports. 2.

An Order of this Honourable Court directing the 1st and 2nd Respondents to pay the following damages to the Applicant: (a) Special Damages: (i) Amount due to Union Bank of Nigeria PLC… N6,798,935,437.33 (Six Billion, Seven Hundred and Ninety Eight Million, Four Hundred and Thirty Seven Thousand, Thirty Three Kobo). (ii) Amount due to GT Bank PLC N864,889,000.00 (Eight Hundred and Sixty Four Million, Eight Hundred and Eight-Nine Thousand Naira). (iii) Amount due on demurrage $9,207,000.00 (Nine Million, Two Hundred and Seven Thousand US Dollars). (b) General Damages for loss of business.

Reputation and other costs… N1,500,000,000.00 (One Billion, Five hundred Million Naira). TOTAL AMOUNT DUE… N9,165,824,457.55 (Nine Billion, One Hundred and Sixty Three Million, Eight Hundred and Twenty Four Thousand, Four Hundred and Thirty Seven Naira, Thirty Three Kobo). $9,207,000.00 (Nine Million, Two Hundred and Seven Thousand US Dollars).

A PERPETUAL ORDER of injunction restraining the 1st and 2nd Respondents from stopping the Applicants ship from berthing and discharging their cargo and any other ship that will bring in the cargo which will be imported under the approval granted by the 4th Respondent.

A DECLARATION that based on the 2 Letters of Credit issued by Union Bank of Nigeria PLC and the 2 Form M approved by the Central Bank of Nigeria all within the validity period of the Approval Letter in 2008 issued by the 4th Respondent were conclusive that the Applicant had performed all duties required of the company in the importation of the cement.

Grounds upon which the Reliefs were sought were spelt out. The Originating process was supported by affidavits and the Respondents filed counter affidavits. Exhibits were also filed. I refrained from giving details of the above because they are not relevant in this Appeal.

​In a considered opinion delivered on 8 January, 2013 judgment was entered for the Appellant. Relevant extracts from that judgment reads: “…The Respondents have no defence whatsoever to the Applicant’s claim. The Court therefore orders and declares as follows: 1. That the 1st and 2nd Respondents issue an exemption certificate for the 500,000 metric tonnes of cement imported or to be imported by the Applicant based on the Presidential Approval granted to the Applicant and conveyed by the 4th Respondent from the purported ban on cement by the President in October 2009. 2.

That the relevant agencies under the Ministry of Finance including the 1st Respondent allow the discharge and clearance of the cargo imported or to be imported under the approval granted by the 4th Respondent in any or all Nigeria Ports. 3.

That the 1st and 2nd Respondents pay Special Damages as follows: (i) Amount due to Union Bank PLC… N6,798,935,437.33 (Six Billion, Seven Hundred and Ninety Eight Million, Four Hundred and Thirty Seven Thousand and Thirty Three Kobo). (ii) Amount due to GT Bank PLC N864,889,000.00 (Eight Hundred and Sixty Four Million, Eight Hundred and Eight-Nine Thousand Naira). (iii) Amount due on demurrage $9,207,000.00 (Nine Million, Two Hundred and Seven Thousand US Dollars). 4.

That the 1st and 2nd Respondents are restrained from stopping the Applicant’s ships from berthing and discharging their cargo and any other ship that will bring in the cargo which will be imported under the approval granted by the 4th Respondent. 5. That based on the 2 Letters of Credit issued by Union Bank of Nigeria PLC and the 2 Form M approved by the Central Bank of Nigeria all within the validity period of the Approval letter in 2008 issued by the 4th Respondent were conclusive that the Applicant had performed all duties required of it in the importation of the cement.

​Dissatisfied with the judgment of the trial Court, the Respondents filed a Notice of Appeal on 4 April, 2013. The Appeal was fixed for hearing on 25 April, 2017 before the Court of Appeal (Lagos Division) but before that date, the Federal Government of Nigeria decided to pursue an amicable settlement. An Inter-Ministerial Committee was set up by the Federal Government consisting of representatives from the Federal Ministry of Finance, Office of the Attorney-General of Nigeria, the Nigeria Customs Services and the Chief of Staff to the President of Nigeria.

A series of meetings were held and on 7 May, 2015 it was agreed and recommended that the Appellant be paid N6,131,059,549.86 (Six Billion, One Hundred and Thirty One Million, Fifty Nine Thousand, Five Hundred and Forty Nine Naira, Eighty Six Kobo) and $8,746,650.00 (Eight Million Seven Hundred and Forty Six Thousand, Six Hundred and Fifty US Dollars), in full and final settlement.

On 23 June, 2015 the above was copied to the Appellant after it was signed by the Permanent Secretary of the Federal Ministry of Finance. Again on 6 July, 2015 a letter was written by the Minister of Finance informing the Appellant of the approval for the payment of the stated sums of money. The Respondents failed to pay the Appellant.

On 21 December, 2016, before the hearing of the Appeal on 25, April, 2017 the 2nd Respondent on behalf of the Federal Government of Nigeria paid N15m (Fifteen Million Naira) to the Appellant. The said sum was part payment of the judgment sum. The sum was duly acknowledged by the Appellant.

On 6 April, 2017 the Appellant filed an affidavit titled AFFIDAVIT ATTESTING TO PART PAYMENT/SETTLEMENT OF JUDGMENT DEBT at the Registry of the Court of Appeal.

The terms of part-payment settlement and acknowledgment of receipt of payment were annexed to the Affidavit. This document informed the Court of Appeal that the appeal as it stood had been compromised. A Director in the Federal Ministry of Justice deposed to a counter-affidavit behalf of all the Respondents that the payment of N15m as part payment of the judgment debt was made in error and that the Appellant concealed the pendency of the appeal at the Court of Appeal from the Respondents (It was the Respondents who appealed to the Court of Appeal and not the Appellant).

At the hearing of the appeal on 25 April, 2017 the Appellant informed the Court of the compromise agreement. The Court went ahead and set aside the judgment of the trial Court. This is what the Court of Appeal said in the final paragraph of its judgment. “…In the final result, with the resolution of Issue two (2) in favour or the Appellants, I find merit in this appeal and allow it. Consequently, the judgment delivered by the Federal High Court on 8 January, 2013 in the Suit NO: FHC/L/CS/1443/2009 is hereby set aside. Parties shall bear their costs of prosecuting the appeal.”

This appeal is against that judgment. Briefs were filed and exchanged by counsel. Learned counsel for the Appellant, Chief Wole Olanipekun, SAN filed an Appellant’s brief, and an Appellant’s Reply brief on 1 February, 2018 and 30 April, 2018. A Respondents’ joint brief was settled by Mr. Ishola Alagbala on 4 April, 2018.

Learned counsel for the Appellant formulated four issues for determination of this appeal from the eleven grounds of appeal. They are: 1.

Having regard to the Compromise Agreement duly entered between the parties on 21 December, 2016, whereby the Federal Government of Nigeria made part payment of the judgment debt awarded to the Appellant and the Appellant agreed to accept the part-payment, thus partly discharging the Respondents from the judgment debt awarded by the trial High Court, whether the lower Court did not fall into serious error by disregarding the said Compromise Agreement, assuming jurisdiction on the appeal before it, and setting aside the judgment of the trial High Court. 2.

Considering the fact that the Respondents Notice of Appeal before the lower Court was not signed by any identifiable legal practitioner, whether the lower Court did not fall into grave error and also breach Appellant’s right to fair hearing by countenancing the said Notice of Appeal. 3.

Having regard to various letters and documents which were exchanged between the Appellant and the Respondents’, and also attached as exhibits to the proceedings before the trial Court, whether the lower Court was not wrong in the way and manner it applied, interpreted and jettisoned the said exhibits, thus leading to its reversal of the judgment of the High Court. 4.

Considering the processes filed by parties before the trial Court and transmitted to the lower Court, whether the lower Court was not altogether wrong by setting aside the judgment and award given in favour of the Appellant by the trial Court.

Learned counsel for the Respondents also formulated four issues for determination: 1. Whether considering the circumstances of this appeal, the Respondents’ right of appeal was extinguished and the lower Court was consequently robbed of jurisdiction to entertain the Respondents’ appeal by reason or an alleged compromise agreement and the part payment of the judgment sum by the 2nd Respondent. 2.

Whether considering the record of this appeal, the lower Court was right when it held that, the name and signature of the counsel who signed the Notice of Appeal, was very clearly written and that Notice of Appeal was signed by an identified individual legal practitioner as required by law. 3. Whether the lower Court properly evaluated the exhibits/documents in the record in arriving at its final decision reversing the judgment of the trial Court. 4.

Whether the lower Court was right in holding that the evidence adduced by the Appellant in support of its claim for special damages even if not challenged and not strictly proved, the entitlement of the Appellant to the award made by the trial Court?

I have examined the issues presented by both sides and I am satisfied that the issues formulated by the Appellant, would, if considered, determine the real grievance of the Appellant in this Appeal. Indeed the Appellants issue 1 is so profound that the answer to it may determine this Appeal.

​At the hearing of the Appeal on 20 October 2020 learned counsel for the Appellant, Chief Wole Olanipekun SAN adopted the Appellant’s brief, Reply brief, filed on 1 February, 2018 and 30 April 2018 respectively, and urged the Court to allow the Appeal. In amplification of his brief he observed that in our tradition, parties are encouraged to settle and in line with this the Attorney General of the Federation (the 2nd Respondent) offered the Appellant a smaller sum of money in full and final settlement which was accepted. He submitted that on issue one alone the appeal should be allowed.

Reference was made to BFI Group Corp v BPE (2012) 18 NWLR (Pt. 1332) p.209. Tanimu v Rabiu (2018) 4 NWLR (Pt. 1610) P.505.

Learned counsel for the Respondents Mr. D. D. Dodo SAN adopted the Respondents’ joint brief filed on 4 April, 2018 and urged the Court to dismiss the Appeal. He observed that the parties were not ad idem, and there was no compromise agreement. Finally, he observed that there is no controversy on who signed the Notice of Appeal.

I shall now consider the Appellant’s issue No. 1.

It reads: Having regard to the Compromise Agreement duly entered between the parties on 21 December, 2016, whereby the Federal Government of Nigeria made part-payment of the judgment debt awarded to the Appellant and the Appellant agreed to accept the part-payment, thus partly discharging the Respondents from the judgment debt awarded by the trial High Court, whether the lower Court did not fall into serious error by disregarding the said compromise Agreement, assuming jurisdiction on the appeal before it, and setting aside the judgment of the trial High Court.

Issue 1 is best addressed by dividing it into two; (a) Whether the parties entered into a Compromise Agreement, and (b) If they did was the Court of Appeal right to disregard it.

Learned Counsel for the Appellant, Chief Wole Olanipekun SAN observed that after the judgment of the trial Court and during the pendency of an appeal at the lower Court, the Respondents decided to pursue an amicable settlement with the Appellant.

He observed that an Inter-Ministerial Committee was set up which was made up of top representatives of the Respondents and they had series of meetings with the Appellant, and after deliberations on 7 May 2015 they agreed that the Appellant should be paid N6,131,059,549.86 (Six Billion One Hundred and Thirty-One Million, Fifty Nine Thousand, Five Hundred and Forty Nine Naira, Eighty Six kobo) and $8,746,650.00 (Eight Million Seven Hundred and Forty-Six Thousand, Six Hundred and Fifty US Dollars) in full and final settlement.

Reference was made to documents dated 23 June, 2015, 6 July 2015 and 21 December 2016.

Learned counsel submitted that the Compromise Agreement was duly entered between the parties on 21, December 2016.

Learned counsel observed that the Appellant’s counsel drew the Court of Appeal’s attention to the existence of the Compromise Agreement, but the Court discountenanced it, assumed jurisdiction and went ahead to set aside the judgment of the trial Court. He submitted that Ewulu v Nwankpu (1987) 2 NWLR (Pt.954) p.93 relied on by the Court of Appeal to justify assuming jurisdiction and hearing the appeal was wrong as there was no agreement ad idem between the parties in that case and the case was all about settlement of damages and costs by a party who lost in the trial Court.

He submitted that the Court of Appeal failed to appreciate that with the Compromise reached by the parties the new cause of action before the Court was the Compromise Agreement, contending that misapprehension of the clear issue before the Court led to a perverse decision.He urged the Court to resolve this issue in favour of the Appellant.

Learned counsel for the Respondents contended that there was never a compromise agreement willingly made by the parties. Reference was made to Oshoboja v Amuda (1992) LPELR- 2804 p.19, Star Paper Mill Ltd & Anor v Adetunji & Ors (2009) LPELR-3113 p.27-28.

Contending that the Appellant failed to demonstrate that parties have in fact settled their dispute by reaching a complete and final agreement on vital issues in the form of terms of settlements, and that the parties are ad idem on the terms of their compromise agreement and that their consent was free and voluntary. He submitted that since these conditions were not satisfied there was no Compromise Agreement reached between the parties.

​Learned counsel for the Respondents observed that the Appellant ought to have filed a Notice of Preliminary Objection to the hearing of the Appeal on the grounds that the Court’s jurisdiction was extinguished by the alleged compromise said to have been made of the judgment of the trial Court by the Respondents. Reliance was placed on Order 10 Rule 1 of the Court of Appeal Rules.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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He submitted that the Respondents’ counsel raised the issue of failure of the Appellant to serve the Respondents with a Notice challenging the competence of the Appeal. He urged the Court to resolve this issue against the Appellant in view of this submission.

This Court is to decide whether in fact and in law there was a compromise agreement duly made between parties.

The very well settled position of the law is that litigants can settle their disputes before, during and after judgment of the trial Court, Court of Appeal or Supreme Court. Rules of Court always encourage settlement.

On 8 January 2013, judgment was entered inter alia for the Appellant against the Respondents for the sums of N6,798,933,437.33 (Six Billion, Seven Hundred and Ninety Eight Million, Four Hundred and Thirty Seven Thousand, Thirty Three Kobo), N864,889,000.00 (Eight Hundred and Sixty-Four Million, Eight Hundred and Eighty Nine Thousand Naira), $9,207,000.00 (Nine Million, Two Hundred and Seven Thousand US Dollars),

To find out if the parties compromised the judgment of the trial Court, a diligent examination of all the documents that passed through the parties must be examined to see what the intentions of the parties were, and if they were ad idem on an agreement.

After the judgment of the trial Court, the Respondents’ decided to pursue an amicable settlement with the Appellant, so by a letter dated 30 April 2015 the Appellant was invited for a meeting. The letter was signed by the Director Home Finance for the Permanent Secretary Ministry of Finance and it is addressed to the Appellant (see page 835 of the Record of Appeal, Vol. III). The letter reads: RE: COMMITTEE ON THE COURT CASE BETWEEN NIGERIAN CUSTOMS SERVICES (NCS) AND MESSRS MINAJ HOLDINGS LTD ON THE IMPORTATION OF CEMENT IN 2008. I directed am to refer to the State House letter Ref. No.

PRES/97/HAGF/847/87/MF/-2/595 dated 14 April, 2015 on the above subject and the approval granted from the Presidency for the constitution of an Inter-Ministerial Committee comprising the Federal Ministry of Finance, Office of the Attorney-General of the Federation, Office of the Chief of Staff to the President and Nigerian Customs Service to deliberate on the issue contained therein. 2.

The first meeting of the above Committee has been slated for Thursday 7 May, 2015 by 3.00 p.m. at the Permanent Secretary’s Conference Room, 5th Floor, Federal Ministry of Finance after which you will be invited to the subsequent meeting. 3. Please accept the assurances of the Permanent Secretary, Finance.

​On 23 June, 2015 a letter was written by the Permanent Secretary Ministry of Finance to the Comptroller-General, Nigeria Customs Service. The letter was copied to the Appellant. (See pages 837-838 of the Record of Appeal, Vol. 3). The letter reads: RE: JUDGMENT IN SUIT NO: FHC/L/CS/1445/2009 BETWEEN MINAJ HOLDINGS LIMITED V COMPTROLLER GENERAL NIGERIA CUSTOMS SERVICE AND OTHERS RE: REQUEST FOR MR PRESIDENT’S APPROVAL TO PAY MESSRS MINAJ HOLDINGS LIMITED’S OUTSTANDING JUDGMENT DEBT ON THE IMPORTATION OF CEMENT IN 2008 I write to inform you of Mr.

President’s approval of the Committee s recommendation for the payment to Minaj Holdings Limited, of the sum of N6,131,059,549.86 (Six Billion, One Hundred Thirty One Million Fifty Nine Thousand, Five Hundred and Forty Nine Naira, Eighty Six Kobo) and $8,746,650.00 (Eight Million, Seven Hundred and Forty Six Thousand, Six Hundred and Fifty U.S. Dollars). The payments were to enable the Company to inter-alia, satisfy its indebtedness to third parties such as Banks, the Shipping Company and other overseas parties involved in the transaction culminating in the suit.

You are therefore requested to note action taken and terminate further legal actions on the case…

Then on 6 July, 2015 the Minister of Finance informed the Appellant that the amount recommended as compromise judgment on 23 June, 2015 had been approved and ratified. (See pages 859 of the Record of Appeal). The letter states: RE: REQUEST FOR FEDERAL GOVERNMENT OF NIGERIA’S APPROVAL TO PAY MESSRS MINAJ HOLDING LIMITED JUDGMENT DEBT IN SUIT NO: FHC/L/CS/1445/2009 BETWEEN MINAJ HOLDINGS LIMITED V COMPTROLLER-GENERAL, NIGERIA CUSTOMS SERVICE AND OTHERS.

I am directed to refer to the above subject matter and to the recent negotiation between your Company and the Federal Government of Nigeria and to covey approval that the negotiated sum of N6,131,059,549.86 (Six Billion, One Hundred and Thirty One Million and Fifty Nine Thousand, Five Hundred and Forty-Nine Naira, Eighty Six Kobo only) and USD 8,746,650.00 (Eighty Million, Seven Hundred and Forty-Six Thousand, Six Hundred and Fifty Dollars only) be paid to your Company in full and final settlement. 2. I am to say that the sum will be paid installmentally as revenue permits. 3.

Please accept the Permanent Secretary’s best regards.

Finally on 21 December, 2016 before the hearing of the Appeal the 2nd Respondent (i.e. the Attorney-General of the Federation) and the judgment Creditor Appellant signed a compromise agreement (See page 979 of the Record of Appeal, Vol. 3). The letter reads: IN THE FEDERAL HIGH COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS SUIT NO. FHC/L/C/1443/2009 and CA/L/365/2013 BETWEEN MINAJ HOLDINGS LIMITED VS COMPTROLLER GENERAL NIGERIA CUSTOMS SERVICE WHEREAS the Judgment Creditor Minaj Holdings Limited obtained judgment against the Defendant on the 8th January 2013.

AND WHEREAS the Judgment Creditor and the Federal Government of Nigeria have agreed as follows: 1. The Federal Government of Nigeria shall pay the sum of N15 Million as part payment of the Judgment debt to the Judgment Creditor or through his Solicitors. 2. The Judgment Creditor having now been paid the sum of N15 Million as part payment of the Judgment by the Federal Government of Nigeria, the receipt whereas the Judgment Creditor hereby acknowledges.

The Federal Government of Nigeria is hereby partly discharged of its debt to the Judgment Creditor under the Judgment or Terms of Settlement as agreed on. Dated 21st Day of December 2016. Signed JUDGMENT CREDITOR/ JUDGMENT CREDITOR SOLICITOR Signed DIRECTOR OF CIVIL LITIGATION FEDERAL MINISTRY OF JUSTICE ABUJA.

I underlined part of these documents reproduced above to highlight what I am about to say. All of these documents, no doubt show very clearly that after the judgment of the trial Court delivered on 8 January, 2013 the Respondents’ acting in concert invited the Appellant for negotiations. The sole purpose of these negotiations was to compromise the judgment of the trial Court. After a series of meetings, the parties were ad idem on an agreement.

It was agreed that the Respondents’ (i.e. the Federal Government of Nigeria) shall pay to the Appellants’ the sum of N6,131,059,549.86 (Six Billion, One Hundred and Thirty One Million, Fifty-Nine Thousand, Five Hundred and Forty Nine Naira Eight Six Kobo) and $8,746,650.00 (Eight Million, Seven Hundred and Forty-Six Thousand, Six Hundred and Fifty U.S. Dollars) in full and final settlement of the judgment and that the Respondents’ shall terminate further legal actions. The agreed sum shall be paid installmentally.

The Respondents’ were in full agreement with the agreement. That explains why they paid N15 Million as part payment of the agreed sum and the Appellant accepted it. It must be noted that by letter/document dated 23 June 2015, the President of the Federal Republic of Nigeria approved the Inter-ministerial Committees recommendation that the Appellant be paid the agreed sum of money.

​The argument of the Respondents’ before this Court is that the parties were not ad idem on the agreement. I may ask what did the Respondents’ expect their signature on all the documents reproduced above to imply. There can be no doubt that the Respondents’ signature implies full agreement with everything in the documents. The Respondents’ must accept the implications and consequences of their signature on the documents. Our duty as Judges’ is not to discover the intentions of the Respondents’ and the Appellant.

It is to decide what each was reasonably entitled to conclude from the attitude of the other, and the conclusion is clear. An amicable settlement in compromise of the judgment of the trial Court was achieved. The parties reached agreement. A good compromise and a balanced outcome after negotiations. It is obvious these several letters reproduced in this judgment show beyond any shadow of doubt that the parties after negotiations came to a good and balanced conclusion on settlement. This was a good compromise.

It is the duty of counsel, well aware of these facts to advice his client that the judgment of the trial Court had been compromised by settlement and the parties are bound by the settlement, instead of doggedly having a relaxed relationship with the truth. I fail to see or understand how the Court below came to a different conclusion.

​After all of the above, the Respondents’ decided to go ahead with their appeal on 25 April, 2017, despite clear directives that settlement has been achieved, and that further legal actions be terminated.

In Abbey v Alex (1999) 14 NWLR (Pt. 637) p.148, Uwaifo JSC (as he then was ) said that: “It would appear that it can he argued that the power to settle or compromise at any stage of pending proceedings extends even to that of compromising judgments in certain situations… In S.P.M. Ltd v Adetunji (2009) 13 NWLR (Pt.1159) p.647 Oguntade JSC said that: “A Judgment of Court often settles the issues in dispute between parties and makes a pronouncement on the rights and entitlements of the parties.

There is nothing stopping parties after the judgment of a Court from changing their positions from what it was in Court in order to compromise the terms of the judgment of the High Court. Before, during or after trial or on appeal, and even after judgment of the top Court is delivered, the parties are at liberty to compromise or settle their matter on terms agreeable to both sides. I am satisfied after examining all relevant documents that the parties entered into a compromise agreement. That agreement compromised the judgment of the trial Court.

WAS THE COURT OF APPEAL RIGHT TO DISCOUNTENANCE THE COMPROMISE AGREEMENT. On 25 April 2017, at the hearing of the appeal in the Court of Appeal, learned counsel for the Appellant, (Respondent in the Court of Appeal) Chief Wole Olanipekun SAN informed that Court that with the compromise agreement the Court of Appeal no longer has jurisdiction to entertain the appeal. He urged the Court to strike out the Appeal.

Learned counsel for the Respondents’ (Appellants’ in the Court of Appeal) Mr. D.D. Dodo SAN submitted that the fact that parties compromise judgment does not extinguish the right of Appeal. He also informed the Court that he was not served Notice of Competence of Appeal. Reference was made to Order 10 of Court of Appeal Rules.

The Court of Appeal had this to say: “In the present appeal, the Respondent did not file a notice of tie Preliminary Objection to the hearing of the appeal on the ground that the Court’s jurisdiction was taken away by the compromise said to have been made of the judgment of the lower Court by the Appellant in line with the provisions of Order 10 Rule 1… I agree with him, that the objection raised at the hearing of the appeal contravenes the mandatory requirement of the provisions of Order 10, Rule 1 above as the affidavit filed on 6 April, 2017 does not constitute the requisite notice.

The Court of Appeal continued: “Apparently, the issue of part-payment of a judgment debt by a judgment debtor without more does not extinguish the right of the judgment debtor to appeal against the judgment in question to render an appeal by him incompetent…”

The issue is explained in Halsbury’s Laws of England, 4th Edition, Volume 37, pages 390-391 and in some decided cases. The learned authors said that: “Where the parties settle or compromise pending proceedings whether before, at or during the trial, the settlement or compromise constitutes a new and independent agreement between them for good consideration.

Its effect are (1) to put an end to the proceedings, for they are thereby spent and exhausted; (2) to preclude the parties from taking any further steps in the action, except where they have provided for liberty to apply to enforce the agreed terms; and (3) to supersede the original cause of action altogether…” In Obayiuwana v Ede (1998) 1 NWLR (Pt.535) p.63, Musdapher JCA (as he then was) restated the well settled position of the law when parties compromise or settle their disputes.

His lordship said: “Now it is settled law that except in specified case or circumstances, the parties to the threatened, intended or pending proceedings, are entitled to compromise or settle their proceedings or any terms they agree and at any time or stage of the proceedings they choose. This can be done without any reference or approval of the Court where the action is pending.

Where the parties compromise or settle pending proceedings, where before, at or during the trial, without making provision, expressly or by necessary implication, for obtaining an order of Court to embody the agreed terms, such a compromise or settlement constitutes a new and independent agreement or bargain between the parties made for good consideration and its effect is: 1. To put an end to the proceedings which have been compromised or settled for they are thereby spent and exhausted. 2. To preclude parties from taking any further steps in the action and 3.

To supersede the original cause of action.

The Court of Appeal was wrong to discountenance the compromise agreement because the Appellant did not file a Preliminary Objection against the hearing of the Appeal as provided by Order 10 Rule 1 of the Court of Appeal Rules.

Order 10 Rule 1 of the Court of Appeal Rules deals with Preliminary Objections and not the issue of Compromise of judgments.

Once the parties are agreed on a compromise agreement, or to compromise the judgment of the trial Court, all that they need to do is to inform the Court, although it may be desirable that they have their terms of agreement entered as Terms of Settlement. The Court may make no order. See Green v Rozen & Ors (1955) All England Law Reports p.797.

When a Compromise Agreement is brought to the notice of the Court, the agreement compromising the action between the parties completely supersedes the original cause of action and the Court has no further jurisdiction in respect of that action. Put in another way when judgment has been delivered by the Court but the parties are not satisfied with it, they negotiate and reach settlement agreeable to them. In law the parties have compromised the judgment. This compromise or settlement is a new independent agreement.

An appeal only be brought against the new agreement and not against the judgment that was compromised. The Court of Appeal fell into grave error when it was informed that the parties had agreed to compromise the judgment of the trial Court and still went ahead to hear the appeal, despite affidavit evidence and exhibits which showed that a compromise agreement had infact been entered by the parties. It must be made abundantly clear that once the parties compromised the judgment, the right to appeal is extinguished.

With the Compromise Agreement the Court of Appeal no longer had jurisdiction to entertain the Appeal.

The Compromise Agreement as agreed by the parties as full and final settlement of their dispute must be enforced.

As agreed by the parties the Respondents’ (that is the Federal Government of Nigeria) shall pay to the Appellant: N6,131,059,549.86 (Six Billion One Hundred and Thirty One Million, Fifty Nine Thousand, Five Hundred and Forty Nine Naira Eighty Six Kobo) and $8,746,650.00 (Eight Million, Seven Hundred and Forty Six Thousand, Six Hundred and Fifty US Dollars. In view of my findings there is no need to consider any other issue. Appeal allowed.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had the benefit of reading in draft the judgment of my learned brother, Olabode Rhodes-Vivour, JSC just delivered. I agree entirely with the reasoning and conclusion that the appeal is meritorious and should be allowed. I have nothing useful to add. I allow the appeal and set aside the judgment of the lower Court. I abide by the consequential orders made. Appeal allowed.

CHIMA CENTUS NWEZE, J.S.C.: My Lord, Rhodes-Vivour, JSC, obliged me with the draft of the leading judgment just delivered. I am persuaded by the reasoning and conclusion. This appeal, being meritorious, deserves to be allowed. Appeal allowed.

AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead Judgment just delivered by my learned brother Rhodes-Vivour, JSC, and I agree entirely with his reasoning and conclusion.

​He set out the facts and circumstances of this case and l do not wish to belabour the point. Evidently, the question in this Appeal boils down to whether the Court of Appeal was right to disregard the Compromise Agreement entered into by the Parties. The definition of “compromise” is “an agreement between two or more persons to settle matters in dispute between them: an agreement for the settlement of a real or supposed claim in which each party surrenders something in concession to the other”- see Black’s Law Dictionary, 9th Ed.

It is settled, as this Court per Oguntade, JSC, observed in S.P.M. Ltd. V. Adetunji & Ors (2009) 13 NWLR (Pt. 1159) 647 at 663 that “there is nothing stopping Parties after the Judgment of a Court from changing their position from what it was in Court in order to compromise the terms of the Judgment”. In that case, S.P.M. Ltd. V. Adetunji & Ors (supra), Adekeye, JSC, also said: “It is the role of the Judex in adjudication to encourage amicable settlement – where it can adequately meet and satisfy the end of justice.

The Court has a discretionary jurisdiction to examine the entire circumstances of a case in order to determine whether the alleged terms of settlement, which to all intents and purpose are compromise agreement, entered into by the Parties- should be scrutinized and made an Order of Court.

When terms of settlement or in other words, compromise agreement become an Order of Court – it, in legal parlance becomes a consent Judgment – A compromise settlement between Parties to a dispute may be described as a contract whereby new rights are created between them in substitution for and in consideration of the abandonment of the claim or claims pending before the Court. A Consent Judgment or Order by nature is as effective in law in respect of all the matters, which are settled as any other Judgment or Order, arrived at after hearing a matter on merit.

The essence is to put a stop to litigation between the Parties just as much as is a judgment, which results in the normal proceedings of a Court, in a matter heard on its merit.

In this case, there is no question that the Court of Appeal fell into serious error when it disregarded the Affidavit evidence and Exhibits, which clearly showed that a compromise agreement had indeed been entered into by the Parties. Thus, I also allow this Appeal, and I abide by the Orders in the lead Judgment.

UWANI MUSA ABBA AJI, J.S.C.: I have read in draft the lead judgment of my learned brother, Rhodes-Vivour, JSC, just delivered and I concur that this appeal be allowed on the reasons and conclusion reached by him.

There was a presidential approval to the Appellant dated 11/6/2008, to import 500,000 metric tonnes of bagged cement into Nigeria, to commence in June 2008 and end in December, 2008. Thus, the Appellant applied and obtained letters of credit from Union Bank of Nigeria for US$ 41,000,000.00 (Forty One Million Dollars) and US$ 8,280,000.00 (Eight Million Two Hundred and Eighty Million Dollars). Consequently, 80,000 metric tonnes of bagged cement arrived Nigeria in 4 shipments and the 3 ships were allowed to berth.

Meanwhile, the 3rd Respondent at that time had issued instructions to the 1st Respondent to stop the importation of cement into Nigeria, which directive affected and prevented the 4th ship from berthing. In the interim, the 1st Respondent accepted customs duties for the bagged cement that were allowed into the country. Entreaties to the 3rd Respondent to lift the embargo were turned down, even the appeal to the 3rd Respondent by the 2nd respondent to allow the ships to berth was refused.

Frustrated, the Appellant sued the Respondents and got a Court order on 18/12/2009 against the Respondents to allow the ships with the bagged cements to berth and discharge their cargo but the Respondents disobeyed the court order despite a directive from the Acting President, Mr. G.E. Jonathan in March, 2010. Consequently, the cargo damaged and became toxic. Resultantly, the Appellant became indebted to its bankers and in order to recover its losses, it instituted vide an Originating Summons Suit RHC/L/CS/1443/2009, against the present Respondents.

​Judgment was delivered in favour of the Appellant but the Respondents appealed. At the pendency of the appeal, the Federal Government of Nigeria sought for an amicable settlement, wherein an Inter-Ministerial Committee was set up by the Federal Government. After series of meetings, it was agreed that the Appellant be paid N6,131,059,546.86 (Six Billion, One Hundred and Thirty Million, Fifty Nine Thousand, Five Hundred and Forty Nine Naira, Eighty Six Kobo) and US$8,746,650.00 (Eight Million, Seven Hundred and Forty Six Thousand, Six Hundred and Fifty US Dollars) in full and final settlement.

However, the Respondents failed to pay the Appellant. Sometime on 21/12/2016, before the hearing of the appeal on 25/4/2017, the Appellant was paid N15,000,000.00 (Fifteen Million Naira) as part payment of the judgment sum. Nevertheless, the Respondents deposed that the payment of N15,000,000.00 was in error. At the hearing of the appeal on 25/4/2017, the Appellant informed the Court of the compromised agreement, which caused the lower Court to set aside the judgment of the trial Court, hence this appeal.

Each party formulated 4 issues for determination.

However, the agreeable and comprehensive issue for determination is the Appellant’s issue one: Having regard to the compromise agreement duly entered between the parties on 21 December 2016, whereby the Federal Government of Nigeria made part payment of the judgment debt awarded to the Appellant and the Appellant agreed to accept the part payment, thus partly discharging the Respondents from the judgment debt awarded by the trial High Court, whether the lower Court did not fall into serious error by disregarding the said compromise Agreement, assuming jurisdiction on the appeal before it, and setting aside the judgment of the trial High Court.

Once parties have compromised or vary the judgment of Court, the right to appeal is extinguished and with the compromise agreement dated 21/12/2016, the lower Court no longer had jurisdiction to entertain the case of the Respondents, who were the Appellants at the lower Court, it acted ultra vires to have set aside the judgment of the trial Court. Per FATAYI-WILLIAMS, JSC in GROVER V. INTL. TEXTILE IND. (NIG.) LTD (1976) LPELR-1342(SC) (PP. 9-10, PARAS.

E-C), settled this matter thus; There is no doubt that the maxim Eodem modo quo oritor eodem modo dissolvitur (what has been created by Agreement may be extinguished by Agreement) applies to the facts of the case in hand. The law is well settled that a later Agreement by the parties to an original contract to extinguish the rights and obligations that the original contract has created is itself a binding contract, provided that the later Agreement is either made under seal or is supported by consideration.

Consideration raises no difficulty if the original contract sought to be extinguished is… still executory. This is because each party, by the later Agreement, is deemed to have agreed to release his rights under the original contract in consideration of a similar release by the other. Such bilateral discharge may take the form of dissolution plus replacement. Thus, the parties may extinguish the original contract but substitute an entirely new Agreement in its place…

I therefore agree with my learned brother, Rhodes-Vivour, JSC, that the Respondents should pay the Appellant the said judgment debt. This appeal therefore succeeds and is allowed.