ENGINEER JAMES I. WENDE v. GOVERNOR OF BENUE STATE & ORS
(2019)LCN/12804(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of March, 2019
CA/MK/298/2013
RATIO
CONTRACT: INGREDIENTS OF A CONTRACT
“I will only emphasize that there are settled essentials of a binding contract, which are: offer, acceptance, consideration, capacity to contract and an intention to create legal relations Akinyemi v. Odu’a Investment co. Ltd (2012) LPELR-8270(SC); BPS Construction Engineering Co. Ltd v. FCDA (2017) LPELR42516(SC). The parties must be in consensus ad idem with regard to the essential terms and conditions thereof. There must therefore be a concluded bargain which has settled all essential conditions that are necessary to be settled and leaves no vital term or condition unsettled; Atiba Iyalamu Savings & Loans Ltd v. Suberu & Anor (2018) LPELR-44069(SC); Best (Nig) Ltd v. Blackwood Hodge Nig Ltd Anor (2011) LPELR-776(SC). It is a question of fact whether the parties have agreed on the essential elements of a contract. Alfotrin Limited v. The Attorney General of the Federation & Anor (1996) LPELR-414(SC), (1996) 9 NWLR (PL475) 634.” PER ONYEKACHI AJA OTISI J.C.A.
JUSTICES
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
ENGINEER JAMES I. WENDE – Appellant(s)
AND
1. GOVERNOR OF BENUE STATE
2. HEAD OF SERVICE, BENUE STATE
3. ATTORNEY GENERAL, BENUE STATE – Respondent(s)
JOSEPH EYO EKANEM, J.C.A.(Delivering the Leading Judgment):
This appeal is against the judgment of the High Court of Justice, Benue State, Makurdi Division (the trial Court) holden at Makurdi delivered in Suit No. MHC/261/2011 on 12/10/2012 by Onum, J., as he then was. In the judgment, the trial Court dismissed the suit of the appellant (as plaintiff) against the respondents (as defendants).
The facts of the case leading to the appeal are that the appellant, a retired civil servant, while in the service of Benue State Government was formally allocated Flat No. 1 at BNARDA 6 ? man quarters Adjacent to Rail Line Makurdi (the house). The Benue State Government had a policy of disposing of its quarters to its staff on owner occupier basis. It was the case of the appellant that he was one of the applicants who applied to indicate their interest to purchase the houses occupied by them. The respondents denied that he applied. The appellant?s allocation of the house was revoked by the Government and the same was allocated to one E. D. Okpe. The house was also not sold to the appellant.
Aggrieved by the turn of events, the appellant took out a writ of summons at the trial Court endorsed with a statement of claim against the respondents for the reliefs set out hereunder:
a. Declaration that the policy of Benue State Government of disposing its quarters to civil/public servant, on owner occupier basis, which was later on extended to cover elected officers does not exclude the plaintiff.
b. Declaration that the plaintiff who is the actual occupier of Flat No. 2 located at BNARDA 6-man Quarters Adjacent to Rail Line Makurdi, who has indicated interest in buying the house, should be given the first option to buy the house before any other interested person who is not in actual occupation therefore.
c. Declaration that the plaintiff who is in actual occupation of Flat No. 2 located at BNARDA 6-man Quarters Adjacent to Rail Line Makurdi, who has applied and paid the application fees to buy the house ought to have been formally informed that his application was not approved and reasons thereof before putting out the house to other intending buyer.
d. Declaration that the purported revocation of the plaintiff?s tenancy/notice to quit and deliver up possession Flat No. 2 located at BNARDA 6-man Quarters Adjacent to Rail Line Makurdi on ground that the said house has been assigned to a new owner who is not in occupation is inequitable, unjust, unfair and discriminatory against the plaintiff, unconstitutional and the same should be set aside.
e. Declaration that the plaintiff having been legally allocated the house in question, as civil servant in Benue State, which he has indicated interest in purchasing is more qualified as an occupier to be given the first option on owner occupier basis.
f. Declaration that the purported revocation of the plaintiff?s tenancy and quit notice on same as well as the purported assignment of the said house which plaintiff has always occupied and is in occupation to a new owner is contrary to the Benue State Government?s policy to assign the house on ?owner occupier? basis, null and void and of no effect whatsoever.
g. Order of the Court setting aside the purported revocation of tenancy/notice to quit and assignment to a new owner of the house, Flat No. 2 located at BNARDA 6-man Quarters, occupied by the plaintiff.
h. Order of perpetual injunction restraining the defendant, by themselves, agents, servants, by and through whomsoever, from doing anything, taking any action prejudicial to the interest of the plaintiff, trespassing on the house and or in any way and manner tampering with the peaceful occupation by the plaintiff of the said house occupied by the plaintiff.
i. Order of Specific Performance against the defendants to complete the contract of assignment of the house, Flat No. 2 located at BNARDA 6-man Quarters Adjacent to Rail Line Makurdi, now occupied by the plaintiff by issuing to the plaintiff the particulars of purchase upon the payment of the balance due from the plaintiff to the defendant on the property.
j. Payment of One Million Naira (N1,000,000.00) general damages for the stress, harassment and trespass on the plaintiff?s house.
k. Cost of this Litigation assessed at N500,000.00.
l. 10% interest on the judgment sum from the date of judgment until the full payment of the judgment sum?.
Upon being served with the processes, respondents, with the leave of the trial Court, filed a statement of defence denying the claim of the appellant.
At the trial of the case, the appellant testified for himself as PW1 and tendered Exhibits A, B, B1 ? B9. He called no other witness.
The respondents testified through one witness, DW1, through whom Exhibits C, D and E were tendered.
After taking written addresses, the trial Court in a considered judgment delivered on 12/10/2012 found no merit in the case of the appellant. It accordingly dismissed the same in its entirety.
Aggrieved by the judgment, the appellant appealed against the same by means of a notice of appeal filed on 22/10/12. The same was with the leave of Court amended.
At the hearing of the appeal on 22/1/2019, D.A. Awuru, Esq. for the appellant adopted and relied on appellant?s brief of argument filed on 25/3/2015 but deemed filed on 14/4/2016 in urging the Court to allow the appeal.
E.T.C. Akula, Esq. (PSC 1 – Ministry of Justice, Benue State) for the respondents adopted and relied on respondents? brief of argument filed on 16/1/2017 but deemed filed on 17/1/2017 in urging the Court to dismiss the appeal.
‘In the appellant’s brief of argument, the following issues are set out for the determination of the appeal:
1.Whether the trial Judge erred in law when he held that the appellant was not entitled to key into the policy as the basis for his qualification to benefit under the policy had been eroded along with the revocation of allocation made to him of the premises. (Distilled from ground 2 of the Grounds of Appeal in the amended notice of appeal)
2.Whether the decision of the lower Court is against the weight of evidence. (Distilled from ground 1 of the Grounds of appeal).
In the respondents? brief of argument, one issue is formulated for the determination of the appeal, viz;
1.Whether the trial Court was right when it dismissed the Appellant’s case
Having read the grounds of appeal which are built around assessment of evidence by the trial Court, it is my view that the sole issue distilled by respondent’s counsel is more appropriate for the determination of the appeal than the two issues formulated by appellant’s counsel. I will therefore be guided by the issue in determining the appeal.
Appellant’s counsel submitted that when the Government of Benue State intended to dispose of its properties on owner occupier basis, it implied that those in occupation, if interested, would be considered first to benefit from the policy. He quoted from Exhibit B1 (the guidelines for the sale of Government quarters). He stated that the appellant had genuine allocation papers of the house and that he indicated his interest by obtaining, filling and submitting all the necessary forms and applications. He submitted that the Programme Manager of the BNARDA lacked the power to cancel his allocation. He urged the Court to hold that the subsequent revocation of his tenancy was discriminatory, unfair and contrary to the Benue State Government?s policy of assigning the house on owner occupier basis and therefore was null and void.
Counsel argued that the revocation was not proper and that the Court should not base its judgment on it as the policy came into effect since 2007 and the appellant met all its criteria.
Counsel submitted that the finding of the trial Court was perverse as it was not made upon any credible evidence.
In his response, counsel for the respondents submitted that the respondents were not bound to sell the house to the appellant since there was no contract capable of being enforced between the respondents and the appellant to sell the house to him. He stressed that the requirements for a valid contract were absent in the transaction between the parties. He stated that there was no evidence that the respondents approved appellant’s application or offer. Counsel noted that the guidelines are not before the Court and even if they are, they only constituted an invitation to treat and not an offer.
At page 205 of the record of appeal, the trial Judge held, as regards the appellant’s case, that,
‘His strongest point on the issue, both in his statement of claim and in evidence, is that he also applied to the defendants to be allowed to buy the house in issue in the trial. The law is trite that any binding relationship, which requires an offer by one of the parties to the other, connotes a right on the part of that other to accept or reject the offer. In paragraph 7 of the statement of claim the plaintiff avers to the effect that he submitted an application for consideration of the defendants.
Nothing in the pleadings and evidence however shows that the defendants ever approved the application or accepted the offer. Rather, as I have observed in the earlier part of the judgment, the evidence shows that the plaintiff was not entitled to key into the Policy as the basis for his qualification to benefit under the policy had been eroded along with the revocation of the allocation made to him of the premises in the focus of the suit. It is therefore hard to see how the defendant should come under any obligation to sell the house in the issue to the plaintiff.
On account of the above, the trial Judge dismissed the case of the appellant.
The conclusion of the trial Judge was based on the following reasoning or ratio:
(1) Regarding appellant’s application to be allowed to buy the house, there was nothing to show that his application was approved or that his offer was accepted. In other words, there was no evidence of the acceptance of his offer to buy the house for the transaction to metamorphose into a binding and enforceable contract.
(2)The appellant was not entitled to key into the government policy of owner occupier because of the revocation of the allocation of the house to him.
The reasoning and finding of the trial Court in (1) supra have not been appealed against. That is to say that there is no specific ground of appeal that attacks the same. The result is that it remains binding, valid and conclusive. See Orji v Orji (2011) 17 NWLR (Pt. 1275) 113, 135 and KRK Holdings (Nigeria) Ltd v First Bank of Nigeria Limited (2017) 3 NWLR (Pt.1552) 326, 335. It is also deemed to have been conceded by the appellant Anyanwu v Ogunewe (2014) 8 NWLR (Pt. 1410) 437 ? 470. The reasoning and finding constituted one of the grounds upon which the learned trial Judge based its decision to dismiss appellant?s claim. Not having been appealed against, it is sufficient to sustain the judgment and also deals a fatal blow to the appeal of the appellant.
The defence of the respondents at the trial Court, in part, was that there was no agreement between the parties to sell the house to the appellant. See paragraphs 12, 15, 18 and 19 of the statement of defence at pages 47 ? 50 of the record of appeal.
For there to be a binding and enforceable contract, the following elements must be present.
(1) Offer
(2)Acceptance
(3)Consideration
(4)Intention to create a legal relationship.
(5)Capacity to contract. See Sona Breweries Plc v Peters (2005) 1 NWLR (Pt. 908) 478, 488 and BPS Construction and Engineering Company Limited v F. C. D. A. (2017) 10 NWLR (Pt. 1572) 11, 25.
The finding of the trial Court against which there is no appeal is that there was no acceptance of the appellant’s offer to purchase the house. Therefore there can be no contract which is capable of being enforced in law. This is because an offer must be accepted to crystallize into a contract. See College of Medicine Unilag V Adegbite (1973) NSCC (Vol.8) 323, 330 and Nneji v Zakhem Construction (Nig) Ltd (2006) 12 NWLR (Pt. 994) 297, 317 or (2006) LPELR ? 2059 (SC).
Appellant’s counsel submitted at page 5 par. 3. 04 of his brief of argument that,
When Government of Benue State intends to dispose of its properties on owner occupier basis, it implies that those in occupation if they are interested, will be considered first to benefit from the policy owing to the fact that they are in occupation already.
The word ‘Consider’ is defined as,
‘To think about something carefully, especially, in order to make a decision’ Oxford Advanced Learner’s Dictionary, 8th Ed. Page 309.
Thus it was at the discretion of the Benue State Government to accept the appellant’s application or offer, or to reject it. The case of the respondent?s was that the appellant did not meet the criteria or condition express or implied for the sale of houses.
Again, appellant’s case was that sale on the basis of owner occupier was a policy of the Benue State. Policy is defined as
The general principles by which a government is guided in its management of public affairs. Black’s Law Dictionary 8th Ed. Page 1196.
In Wade & Forsyth’s Administrative Law 7th ed. P. 219 after referring to several cases including R. V. Inland Revenue Commissioner ex p. Preston (1985) AC 835, Attorney – General of Hong Kong v Ng Yuen Shiu (1983) 2 AC 629 and Oloniluyi v Home Secretary (1989) Imm. AR 135, it is stated that,
They show that the Courts now expect government to honour their statements of policy or intention or else treat the citizen with the fullest personal consideration. Unfairness in the form of unreasonableness is clearly allied to unfairness by violation of national justice. It was in the latter con that the doctrine of legitimate expectation was invented.
It is to be stated that the appellant was allocated the house on 27/2/2006. The policy of the owner occupier sales was made on 11/9/2006. Appellant’s allocation was cancelled or revoked on 17/4/2008. The house was re – allocated to one E. D. Okpa. As earlier stated the Benue State Government did not accept appellant’s application or offer. The appellant did not show that the Government considered and rejected his application before his allocation was cancelled. This would have called for a consideration of the doctrine of legitimate expectation in the matter. The trial Court was therefore right in holding that, the evidence shows that the plaintiff was not entitled to key into the policy as the basis for his qualification to benefit under the policy had been eroded along with the revocation of the allocation made to him of the premises…”
Where a trial Court has properly assessed and given value to the evidence before it as in this instance, it is not the function of the appellate Court to interfere with same. See Mogaji v Odofin (1978) 4 SC. I see no reason to interfere with the evaluation of evidence and the conclusion reached by the trial Court.
I therefore enter an affirmative answer to the lone issue for determination and resolve it against the appellant. The appeal lacks merit and I accordingly dismiss the same and affirm the judgment of the trial Court. The parties shall bear their costs.
JOSEPH TINE TUR, J.C.A.: I read an advance Copy of the “judgment” of my learned colleague, J.E. Ekanern, JCA and I do concur with the reasoning and conclusion that the appeal lacks merit and is dismissed.
ONYEKACHI AJA OTISI, J.C.A.: I had the privilege of reading before now the draft copy of the Judgment just delivered by my Learned Brother, Joseph Eyo Ekanem, JCA, dismissing this appeal. I agree completely with the reasoning and conclusions of my Learned Brother, which I adopt as mine.
I will only emphasize that there are settled essentials of a binding contract, which are: offer, acceptance, consideration, capacity to contract and an intention to create legal relations Akinyemi v. Odu’a Investment co. Ltd (2012) LPELR-8270(SC); BPS Construction Engineering Co. Ltd v. FCDA (2017) LPELR42516(SC). The parties must be in consensus ad idem with regard to the essential terms and conditions thereof. There must therefore be a concluded bargain which has settled all essential conditions that are necessary to be settled and leaves no vital term or condition unsettled; Atiba Iyalamu Savings & Loans Ltd v. Suberu & Anor (2018) LPELR-44069(SC); Best (Nig) Ltd v. Blackwood Hodge Nig Ltd Anor (2011) LPELR-776(SC). It is a question of fact whether the parties have agreed on the essential elements of a contract. Alfotrin Limited v. The Attorney General of the Federation & Anor (1996) LPELR-414(SC), (1996) 9 NWLR (PL475) 634.
In the instant case, there was no evidence to show that the essential elements that make for a binding contract were present to ground the orders sought by the Appellant.
Fundamentally, there was no evidence that the offer of the Appellant to purchase the house in issue was accepted or approved by the Respondents. The finding of the trial Court thereon was not appealed against. It is trite that where a finding of the lower Court is not appealed against, that finding remains valid and subsisting. The appellate Court cannot disturb such finding; Omnia (Nig) Ltd v. Dyktrade Ltd (2007) LPELR-2641(SC); Onafowokan & Ors v. Wema Bank Plc & Ors (2011) LPELR-2665(SC). Thus, the finding of the trial Court that the Respondents did not accept the Appellant’s offer was valid and subsisting.
If there was no acceptance of an offer, then there was no contract or agreement in existence. A fortiori, there cannot be specific performance of a non-existent contractual obligation.
For these reasons and for the more comprehensive reasons given in the lead Judgment, I also dismiss this unmeritorious appeal and abide by the orders made by my learned Brother.
Appearances:
D.A. Awuru, Esq. with him, E.U. Uzowuru, Esq.For Appellant(s)
E.T.C. Akula, Esq. (Principal State Counsel 1, Ministry of Justice, Benue State)For Respondent(s)
