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.