Contract

Termination of employment would be lawful if the terms of the contract of service between the employer and the employee are complied with.

A contract of master and servant may be either subject to statutory or common law rules. Contracts with statutory flavor are contracts where the employer is created by statute. Such contracts are governed by the statute which creates the employer. e.g In Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) p. 599, Act No. 3 of 1967 creates the University of Lagos. It is that statute that governs employer employee contract.
A contract is one with statutory flavor where the conditions for appointment and bringing the contract to an end are governed by an enabling statute. It follows naturally that a valid appointment or determination of the contract must satisfy provisions in the statute.
On the other hand contracts of master and servant without statutory flavor are classified as ordinary contract of service. Such contracts are governed by an employee Handbook where the conditions of service are spelt out.

Contracts with statutory flavor are contracts where the employer is created by statute. Such contracts are governed by the statute which creates the employer. e.g In Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) p. 599, Act No. 3 of 1967 creates the University of Lagos. It is that statute that governs employer employee contract.
A contract is one with statutory flavor where the conditions for appointment and bringing the contract to an end are governed by an enabling statute. It follows naturally that a valid appointment or determination of the contract must satisfy provisions in the statute.

Parties are bound by the terms of the contract, and these terms should be read as they are without any embellishments. So once parties enter into a contract, on no account should terms extraneous to the contract or on which there was no agreement be read into the contract. See A.G Rivers State v. A.G Akwa-Ibom State (2011) 3 Sc p. 1 Uwah & Anor v. Akpabio & Anor (2014)2-3 SC p1 ; Koiki v. Magnusson (1999) 8 NWLR (Pt. 615) p. 492;Union Bank Nig Ltd v. B.U. Umeh & Sons Ltd (1996) 1 NWLR (Pt. 426) p. 565.

In contract of sale of land, the law is well settled that failure to pay the purchase price constitutes fundamental breach which obviously goes to the root of the case upon which the Court can not decree specific performance. See Nidocco Limited vs Mrs. I.A. Gbojabia Muth (2013) 7 LPELR-2 or (2013) 6/7 SC (Pt. 10) 92. Nlewedim vs Uduma(1993) 6 NWLR (Pt. 102) 383.

The law is long settled that a person seeking to enforce a contract must show.
1. That all conditions precedent have been fulfilled.
2. That he has performed all the terms which he ought to perform, or is willing to do so if he has not done so. See Coker v Ajewole (1976) 10 NSCC p.429.
A plaintiff who files an action in Court, asking the Court to enforce the contract in his favour cannot expect to succeed if he failed to discharge his obligation under the contract.

In other cases where the employment is governed by the agreement of the parties, removal by way of termination of appointment or dismissal must be in accordance with the terms agreed upon. Failure to comply with the terms renders the termination wrongful but not null and void. The only remedy available to an employee in an ordinary master and servant relationship for wrongful termination of employment is a claim for damages. The rationale being that a servant, though wiling, cannot be foisted upon an unwilling master. See: U.B.N. Ltd v. Ogboh (1995) 2 NWLR (Pt. 380) 647 @ 664; Ibama v. S.P.D.C (Nig.) Ltd. (2005) 17 NWLR (Pt. 954) 364; Olanrewaju v. Afribank Nig. Plc. (supra).

An employer who terminates the contract with his employee in a manner not envisaged by the contract will be liable for damages for the breach of the contract and that is the employee's only remedy. It follows therefore that an employer who has the right to hire has the corresponding right to fire as well. Thus, without any reason, the employer can terminate the employment of his servant and render himself liable to pay damages and such other entitlements of the employee that accrued at the time of the termination only. The Court, except where the employment is especially protected by statute, cannot compel the employer to re-instate the dismissed employee. See Olarewaju v. Afribank (Nig.) Plc (2001) LPELR-2573 (SC), Olaniyan v. University of Lagos (1985) 2 NWLR (Pt 9) 599, Osisanya v. Afribank (Nig) Plc (2007) LPELR-2809 (SC).

It is trite that where the contract of employment itself provides a procedure for the termination of the employment, the procedure as provided must be complied with to effectively bring the employment to an end.

In the latter case, we stated the law as follows at p. 437:
In a claim for wrongful dismissal, the measure of damages is prima facie the amount that the plaintiff would have earned had the employment continued according to contract, Beckham v. Drake (1849) 2 H. L Cas 579 at pages 607-608. Where however the defendant, on giving the prescribed notice, has a right to terminate the contract before the end of the term, the damages awarded, apart from other entitlements, should be limited to the amount which would have been earned by the plaintiff over the period of notice, bearing in mind that it is the duty of the plaintiff to minimize the damage which he sustains by the wrongful dismissal.
The application of this principle was vividly demonstrated by this Court in the case of Western Nigeria Development Corporation v. Jimoh Abimbola, supra, where Ajegbo, JSC, (delivering the judgment of the Court), after stating the guiding principles, said at page 382:

What flows from this latter category, that is, in cases governed only by agreement of the parties, and not by statute, is that the measures of damages recoverable in situations of wrongful termination or dismissal of a servant are determined by what the employee would have earned over the period of notice required for the determination of the employment, Nom Ltd v. Daura (supra); N.P.M.B. v. Adewunmi (1972) 11 SC 111; Onalaja v. African Petroleum Ltd [1991] 7 NWLR (Pt. 206) 691; Chukwumah v. Shell Petroleum Dev. Co. Ltd. (1993) 4 NWLR (Pt. 289) 512; International Drilling Co. Ltd. v. Ajijala (1976) 2 SC 115; Akinfosile v. Mobil (1969) NCLR 253; WNDV v. Abimbola (1966) 1 All NLR 159; Mayne and McGregor on Damages (12th edition); paragraph 608.
Simply put, therefore the measure of damages in cases of wrongful dismissal of this category is always the amount of money that is payable during the period of notice to be given by the employer as stipulated in the contract of employment, Nigerian Produce Marketing Board v. Adewunmi (1972) 11 SC 111; Olatunbosun v. N.I.S.E.R Council (1988) 3 NWLR (Pt. 80) 25.
In all therefore, I take the view that the lower Court correctly stated and applied the applicable principle of law in a master and servant relationship. In International Drilling Company (Nigeria) Limited v. Moses Eyeimofe Ajijala (1976) 2 SC 64, 73-74, this Court made the point that:
The principles of law governing the award of damages were stated recently by this Court in: Western Nigeria Development Corporation v. Jimoh Abimbola (1966) NMLR 381, 382; and Nigeria Produce Marketing Board v. A. I. Adewumi (1972) 1 All NLR (Pt. 2) 433, 437.

However, in other cases governed only by agreement of the parties and not by statute, removal by termination or dismissal would be in the form agreed to. Any other form of dismissal or termination connotes only wrongful termination or dismissal. It therefore does not warrant a declaration of such dismissal as void. Where this happens, the only remedy open to the plaintiff is a claim for damages for that wrongful dismissal and not reinstatement.This is based on the notion that no servant can be imposed by the Court on an unwilling master even where the master's behaviour is wrong. For his wrongful act, the master is only liable in damages and nothing more, Chukwumah v. Shell Petroleum Dev. Co. Ltd. (1993) 4 NWLR (Pt. 289) 512, 560; Union Bank v. Ogboh [1995] 2 SCNJ 1, 16; [1995] 2 NWLR (Pt. 380) 647; N.E.P.A. v. Isieveore (1997) 7 NWLR (Pt. 511) 135; Fakuade v. O.A.U.T.H.(1993) 5 NWLR (Pt. 291) 47; Adeniyi v. Governing Council, Yabatech (1993) 6 NWLR (Pt. 300) 426; Imoloame v. W.A.E.C. [1992] 9 NWLR (Pt. 265) 303; Bankole v. N.B.C. (1968) 2 All NLR 371; Shitta-Bey v. Federal Public Service Commission [1981] 1 SC 40; U.N.T.H.M.B. v. Nnoli (1994) 8 NWLR (Pt. 363) 376; N.O.M. Ltd v. Daura (1996) 8 NWLR (Pt. 468) 601.

However, in other cases governed only by agreement of the parties and not by statute, removal by termination or dismissal would be in the form agreed to. Any other form of dismissal or termination connotes only wrongful termination or dismissal. It therefore does not warrant a declaration of such dismissal as void. Where this happens, the only remedy open to the plaintiff is a claim for damages for that wrongful dismissal and not reinstatement.

Where the servant is removed in a contract with statutory flavour, the first question the Court would ask is: has the servant's employment been determined in accordance with the way and manner prescribed by the statute under reference? Or, is the contract governed by an agreement of the parties and not under any statute? Where the servant is sought to be removed in a contract with statutory flavor, that is, a contract of employment wherein the procedures for employment and discipline, including dismissal, are clearly spelt out, such a contract must be terminated in the way and manner prescribed by the statute. Any other manner of termination which is inconsistent with the relevant statute is void and has no effect.

My Lords, I cannot find any justification for disagreeing with the above conclusion of the lower Court. Under the common – and Nigerian – laws, the position is that, ordinarily, a master has the right to terminate his servant's employment for good or bad reasons or for no reason at all. The basic principle considered normally in the resolution of a dispute between a master and his servant where the former determines the latter's appointment is the determination of whether the contract of service between the two of them is one with statutory-colouration/flavour.

In the first place, I endorse the conclusion of the lower Court that parties are bound by the terms of their contract. If the conditions for the formation of a contract are fulfilled by the parties thereto, they will be bound. It is not the function of a Court to make a contract for the parties or to rewrite the one which they have made,U.B.N. v. Ozigi (1994) 3 NWLR (Pt. 333) 385, 404. Thus, unless it is established in evidence that a party was fraudulently led into an agreement, parties are bound by the written and express terms of their contract, Chidoka v. First Finance Co. Ltd (2012) LPELR-9343 (SC); [2013] 5 NWLR (Pt. 1346) 144. In other words, in the absence of fraud, duress and undue influence or misrepresentation, the parties are bound by their contract, Makwe v. Nwukor (2001) 7 SC (Pt. 1) 1, 38; A-B; Alade v. Alic (Nig.) Ltd [2010] 19 NWLR (Pt. 1226) 111.

The law is settled that the only way to terminate a contract of service with statutory flavour is to adhere strictly to the procedure laid down in the statute. See: Bamgboye Vs University of Ilorin (1999) 10 NWLR (Pt.622) 290; Olatunbosun Vs N.I.S.E.R. Council (1988) 3 NWLR (Pt.80) 25; Longe v. F.B.N. (supra).

An employment enjoys statutory flavour when the contract of service is governed by statute or where the conditions of service are contained in regulations derived from statutory provisions. In the circumstance they invest the employee with a legal status higher than the ordinary master/servant relationship. See: Imoloame Vs W.A.E.C. (1992) NWLR (Pt.265) 303; Olaniyan vs University of Lagos (1985) 2 NWLR (Pt.9) 599; Shitta-Bey v. Public Service Commission (1981) 1 SC 40.

There are three categories of contracts of employment. They are:
(a) Purely master and servant relationship,
(b) Servants who hold their office at the pleasure of the employer.
(c) Employments with statutory flavor.
See: Longe Vs F.B.N. Plc (2010) 6 NWLR (Pt.1189) 1.

In Chief Tamunoemi Idoniboye-Obu V. Nigerian National Petroleum Corporation (2003) LPELR 1426 (SC) this Court has held that for rules and regulations to avail a plaintiff as constituting the terms and conditions of his employment capable of giving it statutory flavor and the attendant protection, the rules must be established to be:-
(1) regarded as mandatory
(2) directly applicable to him or persons of his cadre.
(3) intended for the protection of the employment.
(4) breached in the course of determining the employment.
In the case at hand, the respondent who has met all the foregoing requirements is entitled to succeed in his claim. The lower Courts decision in this regard is beyond reproach.

The law on the point must be restated thus:- where a statute clearly provided for the employment and discipline including an employee's retirement and even dismissal, the employment must be terminated in the way and manner prescribed by the relevant statute and any other manner of termination inconsistent with what the statute prescribed is null and void. See E.P. Iderima v. Rivers State Civil Service Commission LPELR-1420 (SC).

It has become trite that employments that have statutory flavour can only be terminated in the manner allowed by the very statutes that provided for them. See Kunle Osisanya v. AfriBank Nigeria Plc (2007) 6 NWLR (Pt.1031) 565 and Bamgboye v. University of Ilorin(1999) LPELR 737 (SC).

The effect of a party terminating a contract of service governed by regulations, rules or statutory instrument is that such arbitrary or unilateral termination is invalid and ineffectual. See FATUADE v. OBAFEMI AWOLOWO UNIVERSITY TEACHING HOSPITAL (1993) 3 NWLR (Pt.291) 47 at 63.

The illegality disclosed here is the attempt by the appellant to circumvent the provisions of the Land Use Act and this is against public policy and a contract may be against public policy either from the nature of the acts to be performed or from the nature of the consideration. Where a transaction is on the face of it, or from the facts adduced in evidence or the surrounding circumstances, apparently illegal, the Court must act to enforce and protect the law of the land. See: Sodipo v. Lemminkainen OY (1985) 2 NWLR (Pt. 8) 547.

Clearly from what has been established the appellant had the contract discharged by the fourth condition (d) "By breach". This is because a breach of contract is committed when a party to the contract without lawful excuse fails, neglects or refuses to perform an obligation he undertook in the contract or either performs the obligation defectively or incapacitates himself from performing the contract. In the case in hand the appellant breached the contract between him and the respondent without lawful excuse failed to perform the obligation he undertook within the prescribed date in the MOU which was to be before 30/4/1999 by paying the contractual sum of five million (N5,000,000) net purchase price. I place reliance on Mr. J.A. Adeoti & Anor v. Chief J. A. Ayorinde & Anor (2001) 6 NWLR (Pt. 709) 336 at 345.

Therefore the failure of the appellant to pay to the respondent the contractual sum of N5,000,000 (Five Million Naira) being net purchase price before 30/4/1999 constituted a breach of contract for which the respondent is entitled to damages. I call in aid at this point the case of Tsokwa Oil Marketing Company v. B.O.N. Ltd (2002) 11 NWLR (pt. 777) 163 at 200 where this Court laid down some ground rules that would guide the Court in making a finding that a valid contract has been discharged. This Court stated thus:
"A valid contract between parties may be discharged in one of four ways known to law, namely:
(a) By performance: or
(b) By express agreement: or
(c) By the doctrine of frustration; or
(d) By breach."

Suffice to say, that when a party to a contract fails, neglects, or refuses without a lawful reason or excuse to perform the obligation he undertook under the contract, or when such a party performs the obligation defectively or makes it impossible for himself to perform the contract, a contract has been breached. Please see: BEST NIGERIA LTD VS BLACKWOOD HODGE (NIGERIA) LTD. & ORS (2011) 5 NWLR (Pt. 1239) 95 where this Court held per Fabiyi JSC (as he then was) that: –
"There is no gain-saying the point that a breach of contract is committed when a party to the contract without lawful excuse fails, neglects or refuses to perform an obligation he undertook in the contract or incapacitates himself from performing same or in a way back down from carrying out a material term."
See also ADEOTI & ANOR V. AYORINDE & ANOR (2001) 6 NWLR (pt.703) 336. In this Appeal, I find also that the Appellant is in breach of Exhibit 7.

It is now trite law, that a valid contract may be discharged by one of four ways. See TSOKWA OIL MARKETING COMPANY VS B.O.N. LTD (2002) 11 NWLR (Pt.777) page 163 at 200 where this Court held as follows:
"A valid contract between parties may be discharged in one of four ways known to law, namely:
a) by performance
b) by express agreement
c) by the doctrine of frustration; or
d) by breach."

The burden of proof of the existence of terms of an agreement rests squarely on the party asserting such terms since it is a matter of evidence.

A fundamental principle of the law of contract is that for a contract to be regarded as legally binding and enforceable, parties must reach a consensus ad idem in respect of terms of same.

It is trite that where parties have embodied the terms of their contract in a written document, extraneous evidence is not required, whether to add, subtract from, vary or contradict the terms of the written document. Please see SOLICITOR GENERAL WESTERN NIG. VS. DR. FESTUS O. ADEBONOJO & ORS (1971) 1 ALL NLR 181; OLATUNDE VS OAU & ANOR (1998) LPELR-2575 (SC).

It is trite that Courts are imbued with the judicial authority and jurisdiction to give life to contractual agreements made between parties, provided that, such contracts are rooted within the law. The law is that once the terms of contractual agreements between parties are clear and unambiguous, it is the duty of Courts to construe such agreements/contracts in line with the clear intention of the contracting parties. See: GABRIEL OLATUNDE VS OBAFEMI AWOLOWO UNIVERSITY & ANOR (1998) 4 SCNJ 59.

In the event of any dispute as to what the plain and ordinary words of a written agreement mean, the law as enacted in Section 132(2) of the Evidence Act 1990 (for now Section 129(2) of the Evidence Act, 2011) is that evidence may not be given to show that common words, the meaning of which is plain, and which do not appear from the context to have been used in a peculiar sense, were infact so used.

Just for emphasis, let me add a few words. I agree with the Appellants submission, on the authority of Olatunde O.A.U. & Anor. (1998) 4 S.C.N.J. 59 at 74 – 75 and Layade Panalpina World Transport (Nig.} Ltd (1996) 7 S.C.N.J. II; that it is no duty of the Court to make contracts for the parties, and that as a rule parties make their own contracts and intend thereby to be governed by the contract.

It is settled law that where the contract between the parties is reduced into writing, extrinsic evidence is not permitted to add, vary, subtract from or contradict the terms of the written instrument. See: Koiki v Magnusson (1999) 8 NWLR (Pt.615) 492; Ogundepo Vs Olumesan (2011) 18 NWLR (Pt. 1278) 54; Olaoye vs. Balogun (1990) 5 NWLR (Pt. 24.

It is equally settled that where a contract is made subject to the fulfillment of specific terms and conditions, the contract is not formed and not binding unless and until those terms and conditions are fulfilled. See:Tsokwa Oil Marketing Co. Vs B.O.N Ltd. (2002) 11 NWLR (Pt. 777) 163; Best (Nig) Ltd vs. Blackwood Hodge (Nig) Ltd. (2011) 5 NWLR (Pt. 12239) 95.

It is trite, as rightly submitted by learned counsel for the appellant, that for there to be a binding contract between parties, they 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. See: Alfotrin Ltd. Vs A.G. Federation & Anor. (1996) 9 NWLR (pt.475) 634 @ 656 H; Dangote Gen. Textile Products Ltd. & Ors. vs. Hascon Associates Nig. Ltd. & Anor. (2013) 12 SCNJ 456; Akinyemi Vs Odua Investment Co. Ltd. (2012) 1 SCNJ 127: Bilante International Ltd. Vs N.D.LC. (2011) 15 NWLR (pt.1270) 407 @ 423 C F; BPS Construction & Engineering Co. Ltd. vs. F.C.D.A (2017) 1 SC (Pt. II) 125 @ 146 148.

Conversely, my understanding of a 'CONTRACT' is that it is a formal agreement between two or more parties who by so entering into such agreement, they resolve to create obligation or commitment between them to do or not to do a particular thing. In a contract, the basic elements that forms it or makes it binding, is that there is offer, "acceptance" and consideration and these three elements of which must coexist and be properly defined in no uncertain terms.
In such agreement, if parties sign it they make themselves bound by it and thereby becoming enforceable on them depending on the terms agreed upon. See Alfotrin Ltd v. A-G Federation & Ors (1996) 9 NWLR (Pt. 475) 634.

The situation presenting as it is, that of an inchoate agreement which can be properly described as an Intent for a future reaching of an agreement, there is no basis on which specific performance can be ordered. For emphasis the MOU was just a process in the journey to a contract and so the contract had not happened and so no specific performance can be ordered and the issue of a quantum meruit of damages cannot be ordered for a non existent contract not to talk of a breach thereof. See Ezenwa v. Oko (2008) 3 NWLR (Pt. 1075) 610 at 628;Savannah Bank of Nigeria Plc v. Oladipo Opanubi (2004) 1 NWLR (Pt. 896) 437 at 453-454.

Therefore the interpretation of the trial Court of the MOU being a binding contract was faulty, for as an agreement the MOU was inchoate or incomplete. Its completeness can only be when the "formal agreement" was signed and that was yet to happen. See Okechukwu v. Onuorah (2000) 15 NWLR (Pt, 691) 597 at 614-515; U.B.A. Ltd v. Tejumola & Sons Ltd (1988) 2 NWLR (Pt. 79) 662 at 688.
This stand is well captured in the case of Best (Nig.) Ltd v. B.H. (Nig.) Ltd (2011) 5 NWLR (Pt. 1239) 95 at 126 where this Court held as follows:
"Where a contract is made subject to the fulfillment of certain specific terms and conditions, the contract is not formed and not binding unless and until those terms and conditions are complied with or fulfilled. Tsokwa Marketing Co. Ltd. v. B.O.N. Ltd. (2002) 11 NWLR (Pt. 777) 163."

This Court has stated time without number that in order to decide whether parties have reached agreement, it is usual to inquire whether there has been a definite offer by one party and unqualified acceptance of that offer by another. An offer is a definite undertaking made with the intention that it shall become binding on the person making it as soon as it is accepted by the person to whom it is addressed. It therefore follows as a matter of course to the happening of a contingency that contract only become enforceable provided the event has occurred of the contingency has happened. In other words where the contract is made subject to the fulfillment of certain specific terms and conditions, the contract is not formed or becomes binding unless and until those terms and conditions are complied with or fulfilled.
I have relied heavily on the following judicial authorities of this Court, viz:
Omega Bank Plc v. O.B.C. Ltd (2005) 8 NWLR (Pt. 928) 541 at 575; Nwagwu v. F.B.N. (2009) 2 NWLR (Pt. 1125) 203;U.B.A. Ltd v. Tejumola & Sons Ltd (1988) 2 NWLR (Pt. 79) 662 at 688; Tsokwa Marketing Co. Ltd v. B.O.N. Ltd(2002) 11 NWLR (Pt. 777) 163 at 200.

The general principle of law is that where a contract is made subject to the fulfillment of certain terms and conditions, the contract is inchoate and not binding until those terms and conditions are fulfilled. See: Tsokwa Marketing Co. Vs B.O.N. Ltd. (2002) 11 NWLR (Pt.777) 153 @ 196 – 197 H – A & 199 200 G A; U.B.A. Ltd. V. Tejumola & Sons Ltd. (1998) 2 NWLR (Pt.79) 652 @ 685 C – D: Okechukwu Vs Onuorah (2000) 15 NWLR (Pt.691) 597 @ 614 – 615 H – A; Best (Nig). Ltd. Vs Blackwood Hodge (Nig.) Ltd. (2011) 5 NWLR (Pt.1239) 95 @ 126 C – D.

My Lords, it is necessary to reiterate here the elements of a binding and enforceable contract, which are: offer, acceptance, intention to create a legal relationship, consideration and capacity to contract. See: Bilante International Ltd. Vs N.D.I.C. (supra) and Alfotrin Ltd. Vs A.G. Federation & Ors. (supra). For ease of reference I deem it appropriate to restate the dictum of Iguh, JSC in: Alfotrin Ltd. Vs A.G. Federation & Ors. (supra) to the effect that for there to be an enforceable contract "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."

An invitation to treat, on the other hand, is the first step in negotiations between the parties to a contract, which 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: BFI Group Corporation Vs B.P.E. (2012) 18 NWLR (Pt.1332) 209 @ 246 G – H; Neka B.B.B. Manufacturing Co. Ltd. Vs A.C.B. Ltd.(2004) 2 NWLR (Pt.858) 521.

The basic elements of binding contract are therefore offer, acceptance/consideration, capacity to contract and intention to create a legal relationship. See also; Dangote Gen. Textile Products Ltd. & Ors. Vs Hascon Associates Nig Ltd. & Anor. (2013) 12 SCNJ 456; Akinyemi Vs Odua Investment Co. Ltd. (2012) 1 SCNJ 127. See also: Alfotrin Ltd. Vs A.G. Federation & Ors. (1996) 9 NWLR (Pt.475) 634 @ 656 H; (1996) LPELR-414 (SC) @ 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."

This Court in a recent decision in: Bilante International Ltd v. NDIC (2011) 15 NWLR (Pt.1270) 407 @ 423 C F, restated the position of the law regarding what constitutes a valid and enforceable contract 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. Burrillville Racing Assn 91 R. 194, 161 A.2d 213, 215.
To constitute a binding contract between parties, there must be a meeting of the mind often referred to as consensus ad iden. 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: Okugule & 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. Then if there is a stipulated mode for acceptance of the offer, the offeree has a duty to comply with same. See: Afolabi Vs Polymera Industries Ltd. (1967) 1 All NLR 144, (1967) SCNLR 256."

It is trite law that agreement for variation of an existing contract must possess the basic characteristics of a valid contract which are known to be offer, acceptance and consideration. See Idufueko v. PFizer Products Ltd and Anor (2014) LPELR 22999 (SC); Unity Bank Plc v Olubiyi(2015) NWLR (pt 7452) 203 at 242.

NIGERIA PORTS AUTHORITY V. AMINU IBRAHIM AND COMPANY &

There is no doubt that by the above provision i.e. Section 230(1) (s) of Decree 107 of 1993 which is in pari material with Section 251(1) (s) of the 1999 Constitution of the Federal Republic of Nigeria, 1999 (as amended)any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies shall be brought before the Federal High Court. I have given a thorough examination of a plethora of cases of this Court on this issue and there is a consistent pronouncement that the Federal High Court does not have jurisdiction to entertain matters relating to simple contracts. It must not be forgotten that I have already held that the claim of the appellant relates to a simple contract of employment which the appellant sought specific performance. This type of claim, definitely, is not contemplated under Section 230(1) (P) (s) of the 1979 Constitution as amended by Decree 107 of 1993. See Onuorah v KRPC Ltd (2005) All FWLR (pt. 256) 1356, Ports and Cargo Handling Services Company Ltd.& Ors v. Migfo Nig Ltd. & Anor (2012) 18 NWLR (pt. 1333) 555, Adelekan v Ecu-Line NV (2006) 12 NWLR (pt 993) 33. In Integrated Timber & Plywood Products Ltd v Union Bank Nigeria (2006) 12 NWLR (pt. 995) 483, this Court held emphatically that in a simple contract (as in this case), it is the High Court and not the Federal High Court that has jurisdiction to entertain and determine it. See also Eze v Federal Republic of Nigeria (1987) LPELR – 1193 (SC) Pp 29 – 30 paragraphs G – F. In a simple contract of employment as in the instant case, there is nothing in Section 230(1) of the 1979 Constitution (as amended) which shows that the Federal High Court is conferred with exclusive jurisdiction to entertain matters arising therefrom. Rather it is the State High Court which continues to have jurisdiction to entertain issues connected therewith as brought by the...

As I stated earlier, marine insurance contract must be covered by a policy and if not so covered or embodied, it is not even admissible in evidence.
With regard to Section 23 of the Marine Insurance Act 1961, it is clear from the provision of Section 50(1) of the Insurance Decree 1997 the latter provisions was meant to repeal or replace the provision of the former Act by providing that premium must be prepaid before a marine insurance contract could be valid and enforceable. Once such premium was not paid in advance, the contract becomes void and unenforceable.

Consequently, the fundamental purpose of an insurance contract is to give cover for an insurance risk. In other words, where a law states that there is no insurance cover unless premium is prepaid, than in effect it means that the contract is void if no premium is actually pre-paid. See AJAOKUTA STEEL CO LTD VS. CORPLUS LTD (2004) 16 NWLR (Pt.899) 369.

The important thing to consider in an action on a contract itself and for a plaintiff to succeed in an action under such a contract, it/he must tie himself within the terms and conditions of the policy or contract. See YADIS NIGERIA LTD VS NIC LTD (2007) ALL (Pt.3700) 1348.

It is my considered view, that a contract of insurance should always contain the terms and conditions of such contract including the right and liabilities of the parties to the said contract.

I must stress here, that a contract of insurance is created only in a situation where there exists an unqualified acceptance by one party of an offer made by the other party. Consequently, if the parties are still in the process of negotiation, then it can be said that there is no valid and enforceable contract.

The law is trite, that where the words of a contract, agreement or document are clear, the operative words in it should be given their simple and ordinary grammatical meaning. Where parties enter into an agreement, upon their common understanding of the clause(s) therein, they would be bound by the agreement, and none would be allowed to import strange interpretation into the document, just to suit his selfish intention to back out of the agreement. See Adetoun Oladeji Nig. Ltd Vs Nigerian Breweries Plc (2007) ALL FWLR (Pt.357) 837. Amizu Vs Nzeribe (1989) 4 NWLR (Pt.118) 755; Oduye Vs Nigerian Airways Ltd (1987) 2 NWLR (Pt.55) 126.
See also the case of Dalek Nig. Ltd Vs OMPADEC (2007) LPELR 916 (SC); (2007) 7 NWLR (Pt.1033) 402, where it was held:
It is now settled that where the words of a contract, agreement or document are clear,the operative words in it should be given their simple and ordinary grammatical meaning. Union Bank of Nigeria Ltd Vs Sax Nig. Ltd & Ors (1994) 9 SCNJ 1; (1994) 8 NWLR (Pt.361) 150.

AHARANWA(MRS)

From the resolution of issue one, it follows that the second issue, which is whether there was a valid contract of insurance between the appellant and the respondent with regards to the vessel MV Ruth, cannot be otherwise, the simple reason being that, the receipt of an insurance premium conclusively determines the validity of the contract between the parties.

Now, section 50(1) of the Insurance Decree of 1997 states that:
"The receipt of an insurance premium shall be a condition precedent to a valid contract of insurance, and there shall be no cover in respect of an insurance risk unless the premium is paid in advance."
A careful reading of the above makes it abundantly clear that where premium is not paid there is no cover for the goods insured. That is to say, that for there to be a valid contract of insurance the premium must be paid as and when due. The payment of an insurance premium is thus a condition precedent to a valid contract of insurance. See
Irukwu v. T.M.I.B. (1997) 12 NWLR (pt.531) p. 113

From those three grounds of appeal, the Appellant distilled the single issue which posed the question whether without a contractual relationship between Appellant and now only respondent, there cannot be a cause of action even if the claim is made in equity for money had and received and for money held in constructive trust. The Appellant had sought refuge in the case of this Court per Iguh JSC in Alfotrin Ltd V. A.G.Federation (1996) 9 NWLR (pt.475) 634 where the learned Jurist stated thus at page 659:-
"The law is settled that where a plaintiff can prove the rendering of services under an unenforceable contract, the contract is admissible as evidence of the value of the services rendered and he may recover on a quantum meruit basis. Put differently, where work is done or services are rendered by the Plaintiff at the request of the Defendant and of which the Defendant has had the benefit, the plaintiff can recover the value of the work or services rendered on a quantum meruit. The law provides remedies for cases of unjust enrichment and thus to prevent one from retaining some benefit derived from another which it is unconscionable that he should keep. Such remedies, strictly speaking are different from remedies in contract or tort and are recognized to fall within the common law remedy of quasi contract".

Firstly, the nature of bail as the word connotes is a contract. In the case of ADAMU SULEMAN & ANOR V C.O.P PLATEAU STATE (2008) LPELR-3126, the Supreme Court per TOBI JSC (of blessed memory) held:- “The right of bail, a constitutional right, is contractual in nature. The effect of granting bail is not to set the accused free for all times in the criminal process but to release him free for all times in the criminal process but to release him from the custody of the law and to entrust him to appear at his trial at a specific time and place.
The object of bail pending trial is to grant pre-trial freedom to an accused whose appearance in Court can be compelled by a financial sanction in the form of money bal. The freedom is temporary in the sense that it lasts only for the period of the trial. It stops on conviction of the accused. It also stops on acquittal of the accused. The contractual nature of bail is provided for in Section 345 of the Criminal Procedure Code.
The section provides that before any person is released on bail he must execute a bond for such sum of money as determined by the police or the Court on the condition that such person must attend at the time and place mentioned therein until otherwise directed. And if the person is released on bail, the sureties must execute the same or another bond or other bonds containing conditions to the same effect.” PER SENCHI, J.C.A.

The law, however, is that the Public Officers Protection Act does not apply to breaches of contracts, claims for work or labour done and recovery of land. See WEMA SECURITIES AND FINANCE PLC V. NIGERIA AGRICULTURAL INSURANCE CORPORATION (2015) 16 NWLR (PART 1484) PAGE 913 AT 138 JSC and F.G.N. V. ZEBRA ENERGY LTD (2002) 18 NWLR (PART 798) PAGE 162 AT 197. ​A perusal of the writ of Summons and the statement of claim shows that the cause of action of the Respondent lies in tort of negligence and not labour or employment related.
It purportedly arose in the course of employment but not a labour matter. The alleged Negligence is the failure or omission to do something which a reasonable man under similar circumstances would do or the doing of something which a reasonable and prudent man would not do. See ODINAKA V MOGHALU (1992) 4 NWLR (PT. 233) 1 and ABUBAKAR V JOSEPH (2008) 13 NWLR (PT. 1104) 304. ​There are indeed exceptions to the applicability of the Public Officers Protection Act such as cases relating to specific contracts or the defendant acting outside the colour of his office.
S ection 2(a) of the Public Officers Protection Act provides therein protection for a public officer in respect of any action, prosecution or other proceedings for any neglect or default in the execution of any Act, Law, duty or authority by such an officer. The word neglect in its verb form means, “To fail to take care of somebody/something.” In its noun form it means; “The fact of not giving enough care or attention to something/somebody.” See Oxford Advanced Learner’s Dictionary 7th Ed. P. 981.
The complaint of the respondent before the trial Court is in essence that the 2nd appellant did not give enough or the required attention to his driving in the cause of executing his public duty which resulted in damage to him and his vehicle. This brings his case within the purview of Section 2(a) of the Public Officers Protection Act.
In Ekemode v Alausa (1961) 1 ALL NLR (Pt. 1) 135, 137-138, Charles J, stated that; “…the effect of Section 2 of the Public Officers Protection Ordinance appears to me as follows:- (i) An act or omission on the part of a person to whom the section relates is within the section if it is proved that it was done or it occurred:- (a) In the course of commencing to discharge, or in the course of discharging a public duty, or (b) In the course of doing something incidental to the discharge of such a duty, or (c) In the course of commencing to exercise, or in the course of exercising an authority or power conferred for a public purpose, or (d) In the course of doing something incidental to the exercise of such authority or power. (ii) An act on the part of a person to whom the section relates is also within the section if it is proved that it, by itself was incidental to the discharge of such a duty, or the exercise of such an authority or power, as above mentioned. (iii) A total failure to discharge any duty or to exercise any authority or power as above mentioned on the part of a person to whom the section relates is also within the section.
“ PER NIMPAR, J.C.A.

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 AT 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). PER EKANEM, J.C.A.

Firstly, the nature of bail as the word connotes is a contract. In the case of ADAMU SULEMAN & ANOR V C.O.P PLATEAU STATE (2008) LPELR-3126, the Supreme Court per TOBI JSC (of blessed memory) held:- “The right of bail, a constitutional right, is contractual in nature. The effect of granting bail is not to set the accused free for all times in the criminal process but to release him free for all times in the criminal process but to release him from the custody of the law and to entrust him to appear at his trial at a specific time and place.
The object of bail pending trial is to grant pre-trial freedom to an accused whose appearance in Court can be compelled by a financial sanction in the form of money bal. The freedom is temporary in the sense that it lasts only for the period of the trial. It stops on conviction of the accused. It also stops on acquittal of the accused. The contractual nature of bail is provided for in Section 345 of the Criminal Procedure Code.
The section provides that before any person is released on bail he must execute a bond for such sum of money as determined by the police or the Court on the condition that such person must attend at the time and place mentioned therein until otherwise directed. And if the person is released on bail, the sureties must execute the same or another bond or other bonds containing conditions to the same effect.” PER SENCHI, J.C.A.

The law, however, is that the Public Officers Protection Act does not apply to breaches of contracts, claims for work or labour done and recovery of land. See WEMA SECURITIES AND FINANCE PLC V. NIGERIA AGRICULTURAL INSURANCE CORPORATION (2015) 16 NWLR (PART 1484) PAGE 913 AT 138 JSC and F.G.N. V. ZEBRA ENERGY LTD (2002) 18 NWLR (PART 798) PAGE 162 AT 197. ​A perusal of the writ of Summons and the statement of claim shows that the cause of action of the Respondent lies in tort of negligence and not labour or employment related.
It purportedly arose in the course of employment but not a labour matter. The alleged Negligence is the failure or omission to do something which a reasonable man under similar circumstances would do or the doing of something which a reasonable and prudent man would not do. See ODINAKA V MOGHALU (1992) 4 NWLR (PT. 233) 1 and ABUBAKAR V JOSEPH (2008) 13 NWLR (PT. 1104) 304. ​There are indeed exceptions to the applicability of the Public Officers Protection Act such as cases relating to specific contracts or the defendant acting outside the colour of his office.
S ection 2(a) of the Public Officers Protection Act provides therein protection for a public officer in respect of any action, prosecution or other proceedings for any neglect or default in the execution of any Act, Law, duty or authority by such an officer. The word neglect in its verb form means, “To fail to take care of somebody/something.” In its noun form it means; “The fact of not giving enough care or attention to something/somebody.” See Oxford Advanced Learner’s Dictionary 7th Ed. P. 981.
The complaint of the respondent before the trial Court is in essence that the 2nd appellant did not give enough or the required attention to his driving in the cause of executing his public duty which resulted in damage to him and his vehicle. This brings his case within the purview of Section 2(a) of the Public Officers Protection Act.
In Ekemode v Alausa (1961) 1 ALL NLR (Pt. 1) 135, 137-138, Charles J, stated that; “…the effect of Section 2 of the Public Officers Protection Ordinance appears to me as follows:- (i) An act or omission on the part of a person to whom the section relates is within the section if it is proved that it was done or it occurred:- (a) In the course of commencing to discharge, or in the course of discharging a public duty, or (b) In the course of doing something incidental to the discharge of such a duty, or (c) In the course of commencing to exercise, or in the course of exercising an authority or power conferred for a public purpose, or (d) In the course of doing something incidental to the exercise of such authority or power. (ii) An act on the part of a person to whom the section relates is also within the section if it is proved that it, by itself was incidental to the discharge of such a duty, or the exercise of such an authority or power, as above mentioned. (iii) A total failure to discharge any duty or to exercise any authority or power as above mentioned on the part of a person to whom the section relates is also within the section.
“ PER NIMPAR, J.C.A.

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 AT 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). PER EKANEM, J.C.A.

“Section 251 (1) of the 1999 Constitution (as amended) does not vest the Federal High Court with jurisdiction over an action based on simple contract or debt recovery even if the defendant to the action is an agency of the Federal Government. Put differently, it is the State High Court and not the Federal High Court that has the jurisdiction to hear and determine claims founded on simple contract irrespective of who the parties are. In this case, the subject matter of the suit is recovery of professional fees, a simple debt.
So the trial Court and the Court of Appeal rightly held that Section 251 (1) of the 1999 Constitution (as amended) did not oust the jurisdiction of the trial Court.” PER HELEN MORONKEJI OGUNWUMIJU, J.S.C.

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 . PER BOLAJI-YUSUFF, JC.A.

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. PER ABIRYI, J.C.A.

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.” PER MBABA, J.C.A.

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. PER MBABA, J.C.A.

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). UWANI MUSA ABBA AJI, J.S.C.

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. MOHAMMED LAWAL GARBA, J.S.C.

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. PER SAMUEL CHUKWUDUMEBI OSEJI, J.S.C

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 . PER IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.

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. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.
THE DUTY OF A COURT TO TERMS OF A CONTRACT 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 . PER IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.

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. PER AFFEN, J.C.A. WHETHER OR NOT PLEADINGS ARE BINDING ON PARTIES
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. PER AFFEN, J.C.A.

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.” PER SENCHI, J.C.A.

In Labour Law, it is very significant to know that the contract of employment binding the employer and the employee is normally outlined in a Letter of employment/appointment. In the case of Organ & Ors. v. Nigeria Liquefied Natural Gas Ltd., & Anor (2013) LPELR – 20942 (SC), the Supreme Court emphatically held as follows: “The letter of employment is the bedrock on which any of the appellants can lay claim to being employees of the respondent and without the production of such a document, no employment can be inferred.
The Employees’ Handbook issued by 1st Respondent is not a substitute for the letter of employment”. PER ADAH, J.C.A. THE POSITION OF LAW ON DECLARATORY RELIEFS
Furthermore, all the reliefs claimed are declaratory reliefs. A declaratory relief implies a declaration by the Court of the action, cause or right of the parties before the Court. It is the law that declaratory reliefs are not granted as a matter of course and on a platter of gold. They are only granted when credible evidence has been led by a person seeking the declaratory relief. See Anyanru v. Mandilas Ltd (2007) 4 SCNJ and Chukwumah v.
S.P.D.C (Nigeria) Ltd., (1993) LPELR – 864 SC. ​It invariably therefore means that a declaratory relief cannot be granted in the absence of any evidence or where the evidence led is unsatisfactory. A declaratory relief such as what was sought by the plaintiff is discretionary. If a substantial question exists to which one person has a real interest to raise, and the other to oppose, then the Court has a discretion to resolve it by a declaration which it will exercise if there is a good reason for so doing.
It is the form of judgment which should be granted only when the Court is of the opinion that the party seeking it is, when all facts are taken into consideration, fully entitled to the exercise of the Court’s discretion. The power of the Court to make a declaration where it is a question of defining rights of two parties is only limited by its own discretion. The discretion should of course be exercised judicially, but it seems to me that the discretion is very wide. See Ibeneweka v. Egbuna & Ors., (1964) 1 WLR 210. PER ADAH, J.C.A.

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). PER DONGBAN-MENSEM, J.C.A.

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). PER DONGBAN-MENSEM, J.C.A.

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. PER MUSTAPHA, J.CA.
WHETHER OR NOT ARGUMENTS CONTAINED IN A LITIGANT’S BRIEF ARE ESSENTIAL FOR THE PURPOSE OF A JUDICIOUS DETERMINATION OF AN APPEAL IN COURT 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.
PER MUSTAPHA, J.CA.

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. OLABODE RHODES-VIVOUR, J.S.C
AN APPEAL ONLY BE BROUGHT AGAINST THE NEW AGREEMENT AND NOT AGAINST THE JUDGMENT THAT WAS COMPROMISED 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. OLABODE RHODES-VIVOUR, J.S.C