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ALFRED v. HOUSING ALLIANCE LTD & ANOR (2023)

ALFRED v. HOUSING ALLIANCE LTD & ANOR

(2022)LCN/16182(CA)

In the Court of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, May 17, 2022

CA/A/213/2019

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Bature Isah Gafai Justice of the Court of Appeal

Between

MR. NNAMDI ANACHEBE ALFRED APPELANT(S)

And

1. HOUSING ALLIANCE LIMITED 2. OLUSEGUN COKER RESPONDENT(S)

 

RATIO

THE PROPER COURSE TO BE FOLLOWED  BY THE COURT WHEN CONSTRUING DOCUMENTS

Judicial authorities of both this Court and the Apex Court are replete with the pronouncement that when construing documents, the proper course is to discover the intention or contemplation of the parties and not to import into their contract terms or ideas not potent on the face of their agreements. Where the agreement is reduced to writing, the terms of such agreement are to be garnered or deduced from the written agreement. The parties, by their own volition chose and agreed to be and must therefore be bound by the terms of their agreement; thus making the Court powerless, rightly so, to add to or reduce or alter howsoever the terms which parties mutually agreed on. It is indeed the duty of the Court to protect the sanctity of and enforce their agreements. See UBA Plc & Anor vs Jargaba (2007) LPELR-3399(SC), Baba vs. Nigerian Civil Aviation & Anor (1991) LPELR-692(SC), Febson Fitness Centre & Anor vs. Cappa Holdings Ltd & Anor (2014) LPELR-24055(CA).

Where, as in the instant case, parties while having an existing contractual document decide again to introduce yet another one over the same subject matter, the question, as I pointed out is whether the new contract document is designed to give effect to the preexisting rights of the parties or to replace same in the terms in the latter contract document. Thus, the effect of introducing a new contractual document during existence of a contractual document will depend generally on whether the new document is meant to support the existing one or the latter is, by its own showing, meant to replace or subsume the former. In E. Sapara vs. University College Hospital Board of Management (1988) LPELR-3014(SC), the Supreme Court explained the position elaborately thus:
“Now, as a matter of law when two parties have between them an existing contract which is binding on them and a fresh document, again binding on the same parties with respect to the same transaction, is introduced during the life of the existing contract, the question in general is whether the new document is designed and intended to give effect to pre-existing rights or to subsume and/or replace the terms of the existing contract between the parties. In short, the crucial question could be put differently thus; whether the new document between the parties did not flow from the existing contract but has been independently negotiated. If it is a case the new document supporting and giving effect to existing rights then the rights of the parties must be interpreted in terms of the original contract, as modified by the new document. See on this Beesly v. Hallwood Estates Ltd ​(1960) 2 All E. R. 314, at pp. 322 to p. 323.
PER GAFAI, J.C.A.

THE POSITION OF LAW ON THE INTERPRETATION OF STATUTES

It is an established canon of interpretation of a contract document that the operative words employed in the document should, as a general rule, be read and construed in their plain, ordinary, simple grammatical meaning except where such approach will create ambiguity or lead to absurdity or where the circumstances of the case created doubt or difficulty as to the proper application of the words to the subject matter of the contract. Generally however, unless where impracticable, a Court must confine its interpretation to the expressed words of the contract only. See Mekwunye vs. Imoukhuede (2019) LPELR-SC.851/2014, Ihunwo vs. Ihunwo & Ors. (2013) LPELR SC.137/2003 and Lewis vs UBA (2016) LPELR-SC.143/2006. PER GAFAI, J.C.A.

BATURE ISAH GAFAI, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of the Federal Capital Territory Abuja delivered on the 5th of October 2018 in Suit No. FCT/HC/CV/3995/12 coram Agbaza, J. in which the main claims of the Appellant were dismissed.

As gleaned from the Record of Appeal, the Appellant herein, then as the Plaintiff, commenced a suit at the lower Court by Writ of Summons and Statement of Claim by which he challenged the revocation of a land sale agreement between him and the 1st Respondent and the subsequent sale of the land by the 1st Respondent to the 2nd Respondent. The Appellant thus claimed for declaratory and injunctive reliefs as well as payment of various sums as costs, general damages and interest against the Respondents jointly. In the alternative, the Appellant sought for refund of the purchase price, costs, damages and interest. Issues were joined and the suit heard on the merit. In its judgment, the lower Court granted the Appellant only a few alternative reliefs and dismissed the main and other Reliefs sought by the Appellant. The Appellant was dissatisfied with the judgment and thus lodged this appeal vide his Notice of Appeal filed on the 20th of December 2018 in which he complained against the judgment on ten Grounds as follows:
“Ground 1
The trial Court erred in law and occasioned a miscarriage of justice when it held at pages 14 -15 of the judgment that:
“In considering the evidence before the Court both the PW 1st Plaintiff’s witness and DW1 1st witness are in agreement to the fact that Exhibit “A” was entered into on the 4th July, 2011 and 14th July, 2011 (sic), no evidence was given to the effect that by the execution Exhibit “J”, Exhibit “A” becomes of no moment. The point was only raised by Plaintiff Counsel and responded to by 1st Defendant in their Final Written Address. It is trite that no matter how brilliant counsel submission is, it cannot take the place evidence.”
Ground 2
The trial Court erred in law and occasioned a miscarriage of justices when in deciding this case, it quoted and relied upon a statement which is not a correct principle of law, at page 14 of the judgment as follows:
“On the construction of contract contained in several documents, the Courts are enjoined “To consider the whole of what has passed between the conduct of the parties, and where the Court finds a set of facts proved. It should apply the law…”
Ground 3
The trial Court erred in law and occasioned a miscarriage of justice when it used Exhibit “A” only in deciding this case and totally omitted to consider Exhibit “J” and in doing so, it held at pages 14 – 15 of the judgment as follows:
“In this instance, it is not in doubt that the parties (Plaintiff and 1st Defendant) are at adidem (sic) that there exist a valid but what is in issue is whether the Exhibit “A” forms part of the contract with the coming into being the Exhibit “J”, which is the basic of the said revocation of the contract by the 1st Defendant… Consequent upon, I am unable to find that it is the intention of the parties that the Exhibit “A” becomes ineffective, consequent upon the execution of the Exhibit “J”. Having so found, it is safe to conclude that the Exhibit “A” is part and parcel of the entire contract document upon which the plaintiff and 1st Defendant entered into a valid subsisting contract.”
Ground 4
The trial Court erred in law when it found that Plaintiff breached the contract between him and the 1st Defendant for the sale of the property in dispute and in doing so, the lower Court held at page 16 of the judgment as follows:
“The question is, is the alleged performance by the Plaintiff vide Exhibit “G” in line with the terms of the Agreement as embodied in Exhibit “A”. No. 3 Conditions, having held that it forms part of the entire contract Agreement. My answer is No. This, in my firm view, is in breach of the contract between the parties, which by condition No. 4 of the said Exhibit “A”, that 1st Defendant reserves the right to revoke the contract.
Ground 5
The lower Court erred in law and occasioned a miscarriage of justice when in evaluating the evidence on record, it failed to give probative value to prove facts showing that 1st Defendant acted outside the agreed terms of the parties, it breaches the contract and consequently, the Plaintiff is entitled to an order of specific performance.
Ground 6
The trial Court erred in law and occasioned a miscarriage of justice when it held at pages 16 – 17 of the judgment as follows:

“It was contended by Plaintiff Counsel in their submission and further that the Offer Letter – Exhibit “P” between 2nd Defendant and the 1st Defendant the basis of the 2nd Defendant alleged ownership of the land in dispute is unsigned, therefore worthless… In another breath contend that the signature the 2nd Defendant on Exhibits “R”, “P” and “U” are not the same. I have perused the said Exhibits; the Exhibit “P” is a signed document before me. Therefore, this submission of Plaintiff Counsel is misplaced.”
Ground 7
The lower Court erred in law and occasioned a miscarriage of justice, when it found that the identity of the land in dispute was in issue and that the land in issue as submitted by the Plaintiff and 2nd Defendant are two different Plots granted respectively by the 1st Defendant.”
Ground 8
The lower Court erred in law and occasioned a miscarriage of justice when it held that there was a valid sole of the land in dispute to the 2nd Defendant and he was a bonafide purchaser for value without notice of the earlier sole to the Plaintiff and in so doing it made out a case for the 2nd Defendant at pages 17 – 18 of the judgment that:
“the DW2 in his evidence stated that he had no notice of the Plaintiff’s interest having on several occasion inquired from the 1st Defendant of any adverse interest. It is my firm view that the Plaintiff did not act sufficiently to bring this matter to the notice of the 2nd Defendant, to having him be bound to have acted bonafide without notice of the Plaintiffs’ interest. In any event, the Court have (has) found that the identity of the land in dispute are clearly not the same.”
Ground 9
The trial Court erred in law and occasioned a miscarriage of justice when it held at pages 18 and 20 of the judgment as follows:
“This Court having found that there is no breach of contract that ensure in favour of the Plaintiff, the reliefs are (sic) contained in the main, cannot be granted; rather this Court will proceed to consider the alternative reliefs.. in conclusion, the plaintiff’s main Reliefs a-k Reliefs Mu. O. of the alternative Relief fails.
Ground 10
The judgment the trial Court is against the weight of evidence on record in the present case.”

The respective particulars enumerated under these grounds are noted. See pages 787 to 800 of the Record of Appeal (vol. 2).

At the hearing of this appeal, the Appellant relied on the Records of Appeal (vols. 1 – 3) and Supplementary Record; from which he raised and filed his Amended Brief of Argument on the 10th of June, 2020 which was however deemed properly filed on the 9th of November 2021. The 1st and 2nd Respondents caused to be filed their Briefs of Argument on the 3rd of December, 2021 and on the 22nd of February, 2022; both deemed properly filed on the 28th of February 2022. The Appellant filed Reply Briefs in response to the 1st and 2nd Respondents’ Brief of Argument on the 20th of December, 2021 and on the 25th of December, 2021 respectively deemed properly filed on the 28th of February, 2022.

In the Appellant’s Brief of Argument settled by Kauna Penzin Esq., six Issues for determination were formulated and presented thus:
“ISSUES FOR DETERMINATION:
Issue 1: (Grounds 1 and 3)
Was the trial Court right when it held that no evidence was placed on record that by execution of the Sale Agreement (Exhibit J), the Offer Letter (Exhibit A) becomes of no moment, also that the Offer Letter is part and parcel of the contract and on that basic the Court relied solely on the Offer Letter without considering the terms in the Sale Agreement (Exhibit J) in resolving the case.
Issue 2: (Grounds 2, 4, 5, 9 and 10)
Whether the trial Court was right when it held that the applicable law in construction of a contract contained in several documents is that the Court is enjoined to consider the whole of what has passed between the parties in so doing, the Court found that the Appellant breached the contract rather than the 1st Respondent, who acted outside the terms of the parties contract and consequently failed to hold that the Appellant was entitled to an order specific performance and all the main reliefs sought at the trial Court.
Issue 3: (Grounds 6)
Was the trial Court right when it held that 2nd Respondent’s Offer Letter (Exhibit P) was a signed document, capable amounting to an offer and all the signatures on Exhibits P, R and U were signed by the 2nd Respondent?”
Issue 4: (Grounds 7)
“Whether the trial Court was right when it found that the identity the land in this case was in dispute and the land as submitted by the Appellant and 2nd Respondent are 2 different Plots.”
Issue 5: (Grounds 8)
“Was the trial Court right when it held that the sale to the 2nd Respondent was valid and the 2nd Respondent is a bonafide purchaser for value without notice of Appellant’s sale and in so doing, the trial Court made out a case the 2nd Respondent?”
Issue 6: (Grounds 10, 11 and 12)
“Whether the trial Court was right, when it failed to admit in evidence, the pictures, video CD and memory card sought to be tendered by the Appellant.”

For the 1st Respondent, its learned counsel Anayo Adibe Esq., formulated two issues thus:
“ISSUE 1: Whether the trial Court was right in construing the terms contained in Exhibit A and Exhibit J in determining the validity of the revocation of the contract between the Appellant and the 1st Respondent.
ISSUE 2: Whether the trial Court was right when it held that the 2nd Respondent was a bona fide purchaser for value without notice, and also validated the sale to the 2nd Respondent.”

Learned counsel for the 2nd Respondent Y. B. Usman Esq, settled on and responded to the Appellant’s issues as formulated.
Owing to the peculiarity of some of the issues of the Appellant, the 1st Respondent’s two issues will be subsumed in and determined together with the Appellant’s Issues. From its wide formulation and arguments, the 1st Respondent’s Issue 1 (supra) is generally targeted at the Appellant’s Issues 1 – 3 (supra). The recurring theme in all the four Issues is on the correctness of or the error by the lower Court in its treatment and decision on Exhibits “A” and “J”. Indeed, The Appellant’s issues 1 – 3 can and will be treated together, along with the 1st Respondent’s two Issues. Exhibit “A” is the Appellant’s Offer Letter for the sale of the land in dispute. Exhibit “J” is the Sale Agreement captioned “Property Agreement”. See pages 391 – 392 and 395 – 403 of the Record (vol. 1). For reasons that will become clear shortly herein; while the Appellant places more emphasis on Exhibit “J”, the Respondents however appear to have built their tent on both pillars of Exhibits “A” and “J”; but more particularly or the former; towing the line of reasoning of the lower Court on the issue. Undisputedly, there is no paucity of pleadings on this Issue. See paragraphs 5 -16 of the Appellants Further Amended Statement of Claim at pages 379 – 381 of the Record (vol. 1), paragraphs 8 to 32 of the 1st Respondent’s Further Amended Statement of Defence at pages 484 – 486 of the Record (Vol. 1) and paragraphs 6 – 14 of the 2nd Respondent’s Statement of Defence at pages 449 to 450 of the Record (vol. 1). It is also clear that the entire trial was predicated largely on documentary evidence of which Exhibits “A” and “J” as well as exhibit “E” (Revocation Letter) are at the forefront. The evidence of the Appellant as the PW; more particularly on cross examination by both learned counsel for the 1st and 2nd Respondents is at pages 750 to 751 and 753 to 754 of the Record (Vol. 2). Ditto the evidence for the 1st Respondent at pages 754 to 757 and 759 as well as that by the 2nd Respondent at pages 761 to 764 of the Record (vol. 2). I have carefully read each of the three dimensions of the evidence as presented by the three witnesses.

Traversing the judgment of the lower Court, it is clear that the same Issues 1 – 3 of the Appellant and the first Issue of the 1st Respondent were also the dominant Issues and the fulcrum of the entire trial. Understandably therefore, the lower Court treated same extensively as follows:
“From all of these, I find that the contention above, is the validity or otherwise of this contract is on two documents – Exhibit “A” and “J” as the basics of the contract. While the Plaintiff contends that Exhibit “A”, ceases to exist upon the execution of the Exhibit “J”, the 1st Defendant contend that it is the Exhibit “A” that gives life to the Exhibit “J”. These are the issues I will be considering in determining whether there is a contract and whether or not it has been breached.
A valid contract, means an Agreement between two or more person creating an obligation that are enforceable or recognized at law. The basic essentials are, agreement, contractual, intention and consideration. The test is whether there is an offer made by a party and accepted by another. See Akinyemi Vs Odu’a Investment Co. Ltd (2012) All FWLR (PT.620) Pg. 1231 – 1252 Para G – A.
In this instance, it is not doubt that the parties (Plaintiff and 1st Defendant) are at adidem that there exist a valid contract, but what is in issue is whether the Exhibit “A” forms part of the contract with the corning into being the Exhibit “J”, which is the basis of the said revocation of the contract by the 1st Defendant.
On the construction of contract contained in several documents, the Courts are enjoined “To consider the whole of what has passed between the conduct of the parties, and where the Court finds a set of facts proved, it should apply the law…”
See Udeagu Vs Benue Cement Co. Plc (2006) (PT. 965) Pg. 623 Para A – F; Pg. 628 Para F – B.
In considering the evidence before the Court, both the PW1 – Plaintiff’s witness and DW1 – 1st Defendant witness are in Agreement to the fact that Exhibit “A” was entered into on the 4th July, 2011 and 14th July, 2011, no evidence was given to the effect that by the execution of Exhibit “J”.
Exhibit “A” becomes of no moment. The point was only raised by Plaintiff Counsel and responded to by 1st Defendant in their Final Written Address. It is trite law that no matter how brilliant counsel submission is, it cannot take the place of evidence. See Buhari Vs Obasanjo (2005) ALL FWLR (PT. 258) 1604.
Consequent upon, I am unable to find that it is the intention of the parties that the Exhibit “A” becomes ineffective, consequent upon the execution of the Exhibit “J”. Having so found, it is safe to conclude that the Exhibit “A1” is part and parcel of the entire contract document upon which the Plaintiff and 1st Defendant entered into a valid subsisting contract. Consequently, the Court’s duty in the circumstance is construe) the terms as entered by the parties and interpret it strictly on the terms such Agreement. See Adetoro vs. U.B.N. Plc (2007) ALL FWLR (PT.396) Pg. 590 at 643 Para F – G.
I now proceed to consider in the light of this, if there is a breach of contract.
By the evidence of both PW1 and DW1 in their respective Statement on Oath, they are agreed to the existence of the Exhibit “A” Exhibit “J”, which this Court have found to be all encompassing of the entire contract terms. A close perusal of Exhibit “A”, in condition No. 3, which states ” That you pay the sum of Seven Hundred and Fifty Thousand Naira) (N750,000.00) only as Project Management Fee and Supervision as soon as you sign the Property Agreement” The word “as soon as” in my own words means, “Upon the doing an act”. The Plaintiff by PW1 – attested to the fact that he paid the sum of N750,000.00 – vide Exhibit “G”, but was rejected by the 1st Defendant. The PW1 under cross-examination admitted that this payment was made after the service on him the Letter Revocation – Exhibit “E”. The question is, is the alleged performance by the Plaintiff vide Exhibit “G” in line with the Terms of the Agreement as embodied in Exhibit “A”. No. 3 Conditions, having held that it forms part of the entire contract agreement. My answer is No. This, in my view, is in breach of the contract between the parties, which by condition No. 4 of the said Exhibit “A”, that 1st Defendant reserves the right to revoke the contract.
Granted that the mode revocation was not stated by the parties, this Court have, held that it is not the duty of Court to re-write the Terms Agreement entered into by the parties. I shall therefore refrain from doing so, suffices to say that by the binding Agreement, the 1st Defendant has right to revoke the agreement consequent upon breach.” Disagreeing with the lower Court’s decision, the Appellant has argued that the lower Court was in error in failing to recognize Exhibit “A” as a superseded document in the face of Exhibit “J” which by itself declared all prior understanding between the parties on the transaction as superseded. It is argued that Exhibit “J” having taken the place of Exhibit “A” the lower Court was in error in according undue prominence on Exhibit “A” and neglecting the place of Exhibit “J” which is the only document to which the parties are bound. It is further argued that it is the lower Court’s erroneous finding that Exhibit “A” formed part of the agreement which led it to consider the issue of revocation of the contract in the light of exhibit “A” alone; although the 1st Respondent had by its own volition waived Exhibit “A” in Exhibit “J” by stating that the transaction between the parties shall be governed only by Exhibit “J”.

It is these arguments (under Issue 1) that formed the basis of the Appellant’s arguments under its issue 2, which as may be recalled, is basically on the manner of the lower Court’s treatment of the evidence, more particularly Exhibits “A” and “J” in arriving at its finding that the Appellant breached the contract in issue. The contention of the Appellant here flows directly from the arguments under his first issue, summarized a moment ago. The substrum of the Appellant’s argument here is that by failing to properly interpret paragraph 6 of Exhibit “J”, the lower Court ended up creating a new contract between the parties. It is argued that by paragraph 6 of Exhibit “J”, the parties have expressly agreed that the transaction between them shall be governed by Exhibit “J” only but the lower Court wrongly considered the dispute between them in the light of Exhibit “A” in determining whether the payment of N750,000 (Seven Hundred and Fifty Thousand Naira) Development levy vide Exhibit “G” was valid. Exhibit “G” is the Finbank cheque dated 11th of June, 2012 evidencing the forwarding of same by the Appellant to the 1st Respondent. The Appellant wondered how the lower Court after holding in its judgment, the relevant portion of which is found at page 901 of the Supplementary

Record, that:
“Also, that there is no commencement date as per Exhibit “J” para. 4 (1) (i) and alco no competition date for building project as in para. 4 (1) (c) (sic) of Exhibit “J”. Also no timeline payment of the Development Levy of N750,000.00″,
the lower Court still went ahead to find the Appellant guilty of breach of performing the same act which it had held there was no timeline for its performance. It is thus argued that as the 1st Respondent unilaterally revoked Exhibit “J” for the singular reason of the Appellant’s failure to pay the said sum of N750,000.00 whose timeline had not elapsed or indeed even became due as the Appellant had not by then commenced construction on the land, the lower Court was in error in its finding on the revocation in favour of the Respondents. It is also argued that by the provisions of Clause 2 of Exhibit “J” titled “PAYMENT TERMS”, which did not include the payment of N750,000.00, it is dear that it was not meant by the parties to apply to the transaction per se, but to other classes of payments as required by law, e.g ground rent, tenement rate etc.

It is further argued for the Appellant that the 1st Respondent’s exhibit “N” titled “CLEARANCE LETTER” is in fact supportive of the Appellant’ case in that it expressly shows and states that the Appellant had completed payment on the contract and ready to commence construction.

There is also the argument for the Appellant that the payment of the said N750,000.00 is not a fundamental term of the agreement and can thus at best be claimed by a demand or in a suit for its payment and if need be for damages as well, placing reliance on the Supreme Court’s decisions in Mini Lodge Ltd vs. Ngei (2009) 7 NWLR (Pt. 1173), 254 at 284 – 285, Adenle vs. Olude (2002) 18 NWLR (Pt. 799) 413 at 435, Dantata vs. Dantata (2002) 4 NWLR (Pt. 756), 144 at 166 and Umaru vs Pam (2010) 2 NWLR (Pt. 1178) 404.

As explained earlier, the 1st Respondent’s two issues (supra) will be treated under the Appellant’s issues 1 – 3.

Just like the Appellant, the bulk of the arguments for the 1st Respondent revolve around the interpretation of and findings on Exhibits “A” and “J” by the lower Court.

Owing to the clarity of the arguments and submissions of the learned counsel for the 1st Respondent, I will not summarise but reproduce their highlights as condensed in its following portion; thus:
“3.03 The Appellant further contended that in construing the contract between him and the 1st Respondent, only Exhibit J should be considered.
3.04 For the avoidance of doubt it is instructive to reproduce the salient but fundamental provisions of Exhibit A (pages 391-392 of the Record of proceedings), which is the offer letter.
3.05 First, Exhibit A is clearly headed thus –
“PLEASE NOTE THAT THIS LETTER OF OFFER IS SUBJECT TO THE FOLLOWING CONDITION
Chief among these conditions is No. 3, which provides –
3.06. “That you pay the sum of Seven Hundred and FiEty Thousand Naira (N750,000.00) only as project management fees and supervision as soon as you sign the property agreement”
The operative words in the above condition are the words “as soon as you sign the Property Agreement”.
3.07 Longman Dictionary of Contemporary English defines as soon as to mean “quickly: in short time or immediately after something happens”
The evidence led before the trial Court revealed that Exhibit

A was made on the 4th of July, 2011, while Exhibit J was executed on the 14th of July, 2011.
The 1st Respondent revoked the contract on the 23rd of April, 2012 by Exhibit E, a period of over eight months after Exhibit A was made.
3.08 We submit that the breach of the terms of Exhibit A, renders Exhibit J inoperative and void. We rely on the OMPADEC v. Delak Nig. Ltd (2002) 8 NWLR (PT. 781) 384 at 402.”

It is submitted for the 1st Respondent that the lower Court was right when it held that Exhibits “A” and “J” must be considered together in construing the import of the transaction and agreement between the duo; placing reliance on the decisions in Adetoro vs. UBN (2007) FWLR (Pt.396), 590 at 643 and Udeagu vs. Benue Cement Co (2006) NWLR (Pt. 956) 623 at 628.

It is argued that the revocation of the agreement between the duo was due to the Appellant’s failure to fulfil mandatory condition of the agreement on the payment of N750,000 project management fees; thus being the architect of his own misfortune. It is argued also that Exhibit “A” states that the Appellant shall pay the purchase price with other charges as required by law before interest is transferred to him. It is thus argued that Exhibit “A” is the genesis or mother of the relationship between the duo; which the Appellant failed to fulfil leading to the revocation of the agreement.

It is also argued that the Appellant’s attempt at rushing to pay the said Development/Management levy vide Exhibit “G” after the revocation of his agreement confirms that the Appellant knew same to be a fundamental term of the agreement but which he breached. It is thus submitted that the lower Court was right when it held that the revocation was properly and validly done and this Court is urged to uphold the said decision by the lower Court.

In the second limb of the 1st Respondent’s arguments, it is argued under its Issue 2 that subsequent sale of the land by the 1st to the 2nd Respondents was valid and proper as the 2nd Respondent was a bonafide purchaser for value; placing reliance on the decisions in Ohiaeri vs Yusuf (2009) 37 NSQR 694, Animashaun vs. Olojo (1990) 6 NWLR (Pt 184), 111 at 121 – 123, BON Ltd vs. Bello (2000) 7 NWLR (Pt. 644), 244 at 255.

It is argued further that the 2nd Respondent’s evidence in the trial gave a vivid account of the various enquires he made about the status of the property before he purchased same from the 1st Respondent. It is also argued that the Appellant’s claim of placing signs on the property indicating his interest in it can not help him because equity aids the vigilant, not the indolent.

On the specific challenge by the Appellant against the validity of Exhibit “P”, it is argued for the 1st Respondent that the Appellant not being a party to exhibit “P” can not challenge it; relying on the decision in Ebhota & Ors vs. Plateau Investment & Property Dev. Co Ltd (2005) LPELR-988 (SC), Jegede vs. Mayor Engr. Co Ltd (2013) LPELR-20281. On the whole, this Court is urged to resolve the Issues in favour of the Respondents.

As for the 2nd Respondent, it may be recalled that I stated earlier that he did not formulate any Issue but settled on and argued the Appellant’s Issues seriatim. The 2nd Respondent’s arguments under and in response to the Appellant’s Issues 1 -3 will accordingly be summarised here.

Just as argued for the 1st Respondent, it is similarly argued for the 2nd Respondent that Exhibit “A” is an integral part of the contract between the Appellant and the 1st Respondent. For ease of understanding, I will reproduce the substrum of the 2nd Respondent’s arguments on the main dispute here thus:
4.2. The Appellant signed the acceptance column of EXHIBIT A, thereby purporting to accept the terms of the offer and the terms of the attached property agreement, It is our submission that Exhibit A and J must be considered together because they both form the basis of this contract; EXHIBIT J having been attached to Exhibit A. This Court held in the case of SAMUEL & ANOR V. LANRE & ORS (2015 LPELR-25932), that it is not the duty of the Court to determine issues on the basis of one document only, when a contract is contained in a series of documents or letters or correspondences. The Court is under a duty to consider the whole of what has passed between and the conduct of the parties.
4.3. The Letter of Offer was subject to several conditions, including execution of a sales agreement and payment of N750,000 as soon as the agreement is executed. It is submitted that the execution the sales agreement does not nullify the Letter of Offer, because such execution would not be a definite acceptance of the offer the 1st Respondent. A definite acceptance of the offer of the 1st Respondent would be the performance of all 5 conditions thereto, we therefore submit that the offer of the 1st Respondent was not completely accepted by failure to pay the project management fee and the paragraph 6 of the Sales Agreement cannot yet be said to be binding.
The Supreme Court held thus:
‘…Where an offer is subject to condition, the formation of the contract is postponed until the happening of the event on which the offer is conditioned. If the condition of the offer is that unless something is done within a stipulated time, the offer is determined, such an offer cannot be accepted until after the happening of that event. However, it is not unusual for an offer to contain the terms of a prospective contract… the acceptance an offer which contains terms or conditions of the prospective contract brings into existence a binding contract on those terms, although liability of a party may be suspended until the condition is fulfilled’ – FGN V.ZEBRA ENERGY LTD (2002) LPELR-3172(SC), COLLEGE OF MEDICINE V. ADEGBITE (1973) 5 S.C. (REPRINT) 106.
4.4 Exhibit A (Letter of Offer) states that the offer is subject to 5 conditions and the Appellant did not satisfy the said 5 conditions, it therefore cannot be said that the terms of the Sales Agreement have come into effect. To that extent, paragraph 6 of the Sales Agreement does not arise.
Assuming that there was a valid and definite acceptance of the offer, Paragraph 6 would still not nullify the terms of the offer. The said Paragraph 6 nullifies all prior understanding between the parties whether written or oral.”

Other allied arguments are that Exhibit “A” is not mere Understanding or Memorandum of Understanding but a valid offer: contrary to the meaning ascribed to the word “understanding” by the Appellant as used in Clause 6 of the agreement. Reliance is placed on the decisions in BPS Construction Engineering Co. Ltd vs. FCDA (2017) LEPLR-42516(SC) and Bilante International Ltd vs. NDIC (2011) 15 NWLR (Pt. 1270) among others.

It is also argued that the lower Court was right when it chose to consider the whole of what has passed between the Appellant and the 1st Respondent instead of Exhibit “J” only in determining the actual agreement between the duo; placing reliance on the decision in FGN vs. Zebra Energy Ltd (2002) LPELR-3172(SC).

Reliance was also placed on Clause 2.2 of Exhibit “J” which stipulates that payment shall be fully made before transfer of interest is effected in the Appellant.

The foregoing represents a fair summary of the respective arguments of the parties on the Issues stated. Their entirety is however noted.

I have earlier reproduced in extension the relevant portion of the lower Court’s judgment from which all the foregoing arguments are derived. As elaborately shown herein earlier, the entire lengthy arguments of all the parties on the Appellant’s first Issue are basically on whether Exhibit “J” supersedes Exhibit “A” and whether the lower Court was right in according Exhibit “A” higher prominence in determining the Appellant’s suit.

As argued, while the Appellant insists on Exhibit “J” and would have none of Exhibit “A”, the Respondents found solace in Exhibit “A”. Funny enough, both documents are their own making. The reasons for sticking to their preferred exhibits, more particularly the Appellant and the 1st Respondent, have all been laid bare earlier herein.

To begin with, none of the parties more particularly the Appellant, has denied the binding force of Exhibit “A” until when Exhibit “J” came on board. Upon its emergence, Exhibit “J” as the Appellant now sees it, took over the role of Exhibit “A” in the driver’s seat by asserting its status under its Clause 6. The dispute is not on whether the Appellant and the 1st Respondent can enter into the agreement ‘in Exhibit “J” while they had Exhibit “A”; it is whether in the event of a dispute such as has now happened, it is Exhibit “A” or “J” or both that will be the reference document for resolution. This is the crux of their dispute; all others being allied issues.

Judicial authorities of both this Court and the Apex Court are replete with the pronouncement that when construing documents, the proper course is to discover the intention or contemplation of the parties and not to import into their contract terms or ideas not potent on the face of their agreements. Where the agreement is reduced to writing, the terms of such agreement are to be garnered or deduced from the written agreement. The parties, by their own volition chose and agreed to be and must therefore be bound by the terms of their agreement; thus making the Court powerless, rightly so, to add to or reduce or alter howsoever the terms which parties mutually agreed on. It is indeed the duty of the Court to protect the sanctity of and enforce their agreements. See UBA Plc & Anor vs Jargaba (2007) LPELR-3399(SC), Baba vs. Nigerian Civil Aviation & Anor (1991) LPELR-692(SC), Febson Fitness Centre & Anor vs. Cappa Holdings Ltd & Anor (2014) LPELR-24055(CA).

Where, as in the instant case, parties while having an existing contractual document decide again to introduce yet another one over the same subject matter, the question, as I pointed out is whether the new contract document is designed to give effect to the preexisting rights of the parties or to replace same in the terms in the latter contract document. Thus, the effect of introducing a new contractual document during existence of a contractual document will depend generally on whether the new document is meant to support the existing one or the latter is, by its own showing, meant to replace or subsume the former. In E. Sapara vs. University College Hospital Board of Management (1988) LPELR-3014(SC), the Supreme Court explained the position elaborately thus:
“Now, as a matter of law when two parties have between them an existing contract which is binding on them and a fresh document, again binding on the same parties with respect to the same transaction, is introduced during the life of the existing contract, the question in general is whether the new document is designed and intended to give effect to pre-existing rights or to subsume and/or replace the terms of the existing contract between the parties. In short, the crucial question could be put differently thus; whether the new document between the parties did not flow from the existing contract but has been independently negotiated. If it is a case the new document supporting and giving effect to existing rights then the rights of the parties must be interpreted in terms of the original contract, as modified by the new document. See on this Beesly v. Hallwood Estates Ltd ​(1960) 2 All E. R. 314, at pp. 322 to p. 323. I shall only set out the summary in head-note (ii) thus- “(ii) the correspondent did not constitute a never contract to grant lease because the letter were written with the intention of carrying out what were then thought to be existing obligations but not with the intention of creating binding contractual obligation; in any event the letters did not contain an unqualified acceptance of any offer made.” As I shall show later, this is more in line with the situation in this case. But, if, on the other hand, the new document did not flow with the original agreement but has been independently negotiated, the document will be construed and given effect to in accordance with its own terms. See British Homophone Ltd V. Kunz & Crystallate Gramonphone Record Manufacturing Co. Ltd (1935) All E. R. Rep. 627, at 634. Du pareq, J. summarized the principal thus – “I know of no authority for the proposition that if two parties enter into what is on the fact of it a binding contract, in ignorance of their legal rights, each believing the other to be legally bound to enter into such a contract when he is not so bound, the contract, and I believe that such a decision would be unsound in principle.” In short, when during the life of an existing contract between two parties, a fresh document is introduced which is binding on both sides, one of two clearly different legal positions may emerge. The new document, it made in contemplation or in furtherance of the existing contractual obligations between the parties, may just have the effect of modifying or giving effect to the existing contract. Or, if made independently of the existing contract or negotiated in ignorance or mutual mistakes of the parties in the existing contract, may give rise to independent right altogether, not connected with the original contract.”
It is thus clear that in its bid to accord sanctity to the agreements of the parties, a Court faced with a situation such as the one thrown up in this appeal, shall first consider the latter agreement of the parties which is no less binding merely because it is second in time. It is from the latter agreement that the Court will first draw reliable evidence and legal source of information to resolve the question of the superiority of one over the other or the support status of the latter on the former.

It is an established canon of interpretation of a contract document that the operative words employed in the document should, as a general rule, be read and construed in their plain, ordinary, simple grammatical meaning except where such approach will create ambiguity or lead to absurdity or where the circumstances of the case created doubt or difficulty as to the proper application of the words to the subject matter of the contract. Generally however, unless where impracticable, a Court must confine its interpretation to the expressed words of the contract only. See Mekwunye vs. Imoukhuede (2019) LPELR-SC.851/2014, Ihunwo vs. Ihunwo & Ors. (2013) LPELR SC.137/2003 and Lewis vs UBA (2016) LPELR-SC.143/2006.

As explained earlier, the Appellant’s main argument which he based on paragraph 8 of his Further Amended Statement of Claim and paragraph 7 of the 1st Respondent’s Further Amended Statement of Defence and Exhibit “J” is that upon the payment of the purchase price in satisfaction of Exhibit “A”, the 1st Respondent later prepared Exhibit “J” as the sale agreement, signed by the 1st Respondent and the Appellant in which they mutually agreed in its Clause 6 thus:
“6.1 These present constitute the entire agreement between the parties hereto. It supersedes all prior understanding between them whether oral or written. The terms of this Contract shall not be altered, varied or amended except by a written instrument duly executed by both parties hereto.”

Exhibit “J” is found at pages 35 to 42 of the Record (vol. 1). The 1st Respondent’s position also is that its offer for the sale of its property was accepted by the Appellant vide Exhibit “A” which contained mandatory conditions of the payment of the purchase price and the payment of the project management fees of N750,000.00. See paragraph 4.1 of the Appellant’s Brief and paragraphs 1.02 and 3.12 of the 1st Respondent’s Brief. In effect, both parties are saying the same thing. While however, the Appellant views Exhibit “J” as constituting a separate, independent agreement, the 1st Respondent views it in the light of and in conjunction with Exhibit “A”. As shown, the lower Court agreed with the 1st Respondent’s contention and thus construed and relied on Exhibit “A” in determining the liability of the Appellant on the transaction.

Let me say here that an offer in relation to a contract is an indication or expression or a proposal by a party of readiness to contract on the terms specified by him and may indeed contain the terms of prospective contract to be executed by the parties. This method of offer is common nowadays which is employed by land developers in development lease agreements so as to enable the developer, in this case the 1st Respondent offeror engage and contract only with fully ready offerees who will make full payment of the purchase price before all other detailed mutual duties and obligations are drawn; the emphasis for the time being, being the full payment of the purchase price. This was what ensued between the 1st Respondent and the Appellant. Upon payment of the purchase price, both parties knew that the stage was set for the execution of the proper detailed contract which the parties eventually did ten days later in Exhibit “J” on the 14th of July 2011.

Looking at the two page Exhibit “A” found at pages 12 -13 of the Record (vol. 1) closely, it is clear that it is simply a letter by the 1st Respondent expressing offer to sell the land in issue to the Appellant and the Appellant’s expression of interest to purchase same. The Appellant signed Exhibit “A” to express interest and readiness to purchase same, which, as clearly stated in its condition number 3, is subject to the execution of a Property Agreement in Exhibit “J”. Again, looking at both documents together, it is unmistakable that the terms or conditions in Exhibit “A” are fully replicated in exhibit “J” with several other detailed new terms and conditions such that Exhibit “A” is practically rendered comatose or meaningless. It is no wonder therefore that in preparing Exhibit “J”, the 1st Respondent inserted in it Clause 6 (supra) which inter alia he and the Appellant executed to the effect that Exhibit “J” supersedes Exhibit “A”. By no literal or figurative meaning can the word “supersede” mean in conjunction with that which is said to be superseded. I do not, with utmost respects, see how the phrase in Clause 6 that Exhibit “J” “…constitute the entire agreement between the parties… it supersedes all prior understanding between them whether oral or written…” (underlining for emphasis) can still mean or imply that the parties shall notwithstanding still continue to proceed in the agreement on their prior written understanding in Exhibit “A”. To posit so as done by the Respondents is tantamount to introducing into their Exhibit “J” the direct opposite of the clear words and intention they expressed therein. Neither this nor any other Court will purposely tow that line. See Babatunde & Anor vs. BON Ltd & Ors (2011) LPELR-8249(SC), Layade vs. Panalpina World Transport Nig. Ltd (1996) LPELR-1768(SC), Diga vs. Tony (2013) LPELR-20768 (CA).

As stated earlier, the lower Court agreed with the Respondents; albeit erroneously thus:
“In considering the evidence before the Court both the PW1 – Plaintiff’s witness and DW1 – 1st Defendant witness are in agreement to the fact that Exhibit “A” was entered into on the 4th July, 2011 and 14th July, 2011, no evidence was given to the effect that by the execution of Exhibit “J”, Exhibit “A” becomes of no moment. The point was only raised by Plaitttiff Counsel and responded to by 1st Defendant in their Final Written Address. It is trite law that no matter how brilliant counsel submission is, it cannot take the place of evidence. See Buhari vs Obasanjo (2005) ALL FWLR (PT.258) 1604.
Consequent upon, I am unable to find that it is the intention of the parties that the Exhibit “A” becomes ineffective, consequent upon the execution of the Exhibit “J”. Having so found, it is safe to conclude that the Exhibit “A” is part and parcel of the entire contract document upon which the Plaintiff and 1st Defendant entered into a valid subsisting contract. Consequently, the Court’s duty in the circumstance is construe the terms as entered by the parties and interpret it strictly ort the terms of such agreement. See Adetoro Vs U.B.N. Plc (2007) ALL FWLR (PT. 396). Pg. 590 at 643 Para F-G.”

The lower Court was in error in seeking for extrinsic evidence to support the Appellant’s contention on the overriding status of Exhibit “J” when Exhibit “J”, itself provides the undisputed evidence in its Clause 6 that it supersedes Exhibit “A”. There can not be a better evidence. 

By the  operation of Clause 6 of Exhibit “J”, the lower Court was in error in relying on Exhibit “A” as the basis for resolving the alleged breach of contract against the  appellant.

As stated earlier, Exhibit “J” indeed incorporated virtually all the key terms of Exhibit “A”. In particular here however, I am referring to Clauses 3 and 4 of Exhibit “J” which provide inter alia that:
“3. DELIVERY OF POSSESSION
3.1 The Purchaser shall TAKE full possession of the parcel of land and be fully responsible for the same subject to any other conditions or terms duly imposed in addition to the payment of the purchase price.
4. OBLIGATIONS OF THE PURCHASER
4.1 The Purchaser shall:
i. Complete the property the foundation to finish-level under strict supervision of Developer’s project Engineers on or before…
ii. Pay the sum of N750,000 for project management team and supervision, bear, pay and discharge all water, tenement or improvement rates, land charges or any other taxes or duties, charges, assessments, impositions and duties whatsoever whether or not of capital or non-recurring nature which is now or may at any time hereafter during the term hereby granted be charged, levied, accessed or imposed upon or in respect of or by reference to the Housing Unit by the Federal Capital Development Authority (FCDA).”

Although these provisions are as clear as day light, in summarizing the evidence of the 1st Respondent as DW1 on same, the lower Court put it thus:
“The DW1 – was cross-examined by the Plaintiff’s counsel and admitted the purchase price on Exhibit “J” and “C” is N5.4 Million. Also that there is no commencement date as per Exhibit “J” Para 4 (1) (i) and also no completion date for building project as in Para 4 (i) (c) of Exhibit “J”. Also no time line for payment of the Development Levy of N750,000.00.”

To begin with, upon executing Exhibit “J”, title in the property had passed to the Appellant by virtue of its Clause 3 (supra). Secondly, as glaringly confirmed by the provisions of Clause 4 of Exhibit “J” (supra), the admission by the 1st Respondent (supra) is at best a mere confirmation that the key provisions in Clause 4 (1) (i) (supra) simply amounts to nothing for omitting to state the completion date of the construction on the land by the Appellant; which paradoxically is the aim of the provisions therein. Thirdly, it is also needless to argue as the Respondents have done that Clause 4 (1) (ii) (supra) did not provide for any clear timeline within which the Appellant shall pay the Project Management Fee of N750,000.00; which the 1st Respondent himself confirmed in his evidence as DW1. It is not in dispute that the Appellant’s “project” had not tangibly commenced to give rise to the payment of the stipulated fees for management and supervision of the project. The lower Court however jettisoned the clear provisions of Clause 4 of Exhibit “J” in erroneous preference to the provisions of the hitherto exhibit “A” thereby arriving at the wrong conclusion that the Appellant had failed to pay the management and supervision fees timeously. It is on this premise that the lower Court proceeded to find that the Appellant, having breached the terms of Exhibit “A” in respect of the Management/Supervision fees, is therefore liable for the consequence in Exhibit “G”. See page 908 of the Supplementary Record. In my respectful view, this finding is perverse and unsustainable. See Udengwu vs. Uzuegbu (2003) 7 SCNJ 145 at 153, A.C.B Ltd vs. Nwachiogbu (1994) 7 NWLR (Pt. 356), 330 at 360, Egba vs. Appah (2005) 10 NWLR (Pt. 934), 464 at 480 – 481.

In effect, the Appellant’s Issues 1 and 2 together with the 1st Respondent’s issue 1 and the 2nd Respondent’s issues 1 and 2 are cumulatively resolved in the Appellant’s favour.

As may be recalled, the Appellant’s Issue 3 argues basically against the lower Court’s decision that the 2nd Respondent’s Exhibit “P” (Offer Letter) is a signed document amounting to an offer. The 1st Respondent’s argument however is that the Appellant not being a party to Exhibit “P” has no competence to challenge its validity. The 2nd Respondent has argued the Appellant’s issue 3 in his corresponding issue 3.

Although rooted in his first and second issues (supra), the Appellant’s third issue is however focused on the 2nd Respondent’s Offer Letter (Exhibit “P”) which the Appellant contends was not signed by the 2nd Respondent. The entire arguments revolve around the alleged irregularity in the 2nd Respondent’s signature on Exhibit “P” made in open Court and his signature on his Sale Agreement (exhibit “U”). Reliance is placed on FRN vs. Bankole (2014) 11 NWLR (Pt. 1418) 357 at 358 in submitting that the 2nd Respondent’s offer letter (Exhibit “P”) is worthless; which this Court is urged to set aside.

For the 2nd Respondent, it is argued that in the absence of a valid contract between the Appellant and the 1st Respondent. Exhibit “J” having been revoked, the 1st Respondent was entitled to sell and the 2nd Respondent was validly entitled to purchase the property and that, in any case, the 2nd Respondent signed Exhibit “P” and that there was consensus ad idem between the 1st and 2nd Respondents on their sale agreement. Reliance is placed on the decisions in Olanlege vs. Afro Continental Nig Ltd (1996) 7 NWLR (Pt. 458), 29 at 46, BFIG vs. BPE (2008) All FWLR (Pt. 416), 1915.

I have gone to great length in summarizing the arguments on the Appellant’s third issue to demonstrate that this Issue can not be resolved without first resolving the Appellant’s more encompassing and drastic issue 5 where it is argued that the 2nd Respondent can not in the first place be regarded as a bonafide purchaser for value without notice of the Appellant’s sale or interest in the property. It is in fact also the 1st Respondent’s second Issue for determination as well as the 2nd Respondent’s Issue 5. Noteworthy also is that this issue, in logical sequence, flows directly from the Appellant’s first and second issue resolved a moment ago. Understandably, the parties too have placed greater prominence on the issue; arguing extensively on it. Whether as argued, the issue can add any value to the parties will be answered shortly. The fulcrum of the arguments for the Appellant are that the 2nd Respondent did not conduct any meaningful enquiries from proper sources on the status of the land; that the 2nd Respondent had constrictive notice of the Appellant’s interest over the land through the Appellant’s acts on it and through the exparte Order of injunction issued by the lower Court and pasted on the property together with other signs of warning and that the 2nd Respondent never bothered to check the record of the 1st Respondent on the status of the land nor tendered any search report on the land. It is thus submitted that the 2nd Respondent can not be regarded as a purchaser for value without notice of the Appellant’s adverse claim and interest on the land.

For the 1st Respondent, it is argued that the 2nd Respondent made enquiries from friends and neighbours in the area where the land is situate who confirmed the clean status of the land; that those enquiries are adequate and that the 1st Respondent was not a proper person from whom to seek such information being the vendor of the land. However, on the Appellant’s specific, main contention that the 2nd Respondent was aware of the encumbrance on the land through the Court’s order of injunction and allied signs pasted on the land, the 1st Respondent’s counsel posited summarily thus:
“4.09. Appellant had sought to make heavy weather of the fact that he notified the 2nd Respondent of his interest on the property by placing signs indicative of the fact of his interest over the property.
With respect, we submit that the Appellant was the architect of his own misfortune. His fate is succinctly captured in the equitable maxim “equity ds the vigilant, not the indolent”.”

The arguments for the 2nd Respondent are in the main that he never had notice of any existing right on the land and that in any case, the notices which the Appellant claimed to have placed on the land were all events after the purchase of the land by the 2nd Respondent; that there can not be a search report on the land as it was not registered and that the Appellant having not perfected his acceptance of the 1st Respondent’s offer in respect of the sale of the land to him, no interest was vested in him over the land. As for the Appellant’s claim of displaying the Court’s order of injunction and other signs on the land, it would seem that the 2nd Respondent’s learned counsel does not want to talk about that and thus simply ignored it.

In my humble view, a claim for bonafide purchaser without notice being an equitable one, is essentially rooted in good faith because the Latin phrase “bonafide” connotes good faith. The claim must therefore be made in good faith. While it serves as a veritable protection for a bonafide purchaser from the fraud or deceit by a vendor, it may also be the purchaser’s albatross where he failed or neglected to conduct diligent enquiries about the existence of prior rights and interests over the land he has purchased. The bottomline is that a purchaser must conduct reasonable due diligence on the property before embarking on a purchase which might turn out to be his waterloo. See Animashaun vs. Olojo (1990) LPELR-491 (SC), Obijuru vs Ozims (1985) LPELR-2173 (SC), Igwebe vs. Saidashs International Ltd & Anor (2016) LPELR-41188.

From the entire arguments, I am inclined to agree that the 2nd Respondent was never aware of the existing interest of the Appellant over the land in issue before he purchased same from the 1st Respondent. He couldn’t have known because the only source of such information at the material time was the vendor himself i.e. the 1st Respondent who deceitfully withheld such critical information. Neither the friends of the 2nd Respondent nor the neighbours of the land in issue whom the 2nd Respondent turned to for information on the status of the land knew what only the 1st Respondent knew; which is that there was a lingering controversy on the status of the land.

That however, is not the end of it.

According to the 2nd Respondent, he first discovered there was a problem on the status of the land in October 2012 when his security man on the land informed him of the visit of some men to the premises instructing a stop of further works. It was at the time the 2nd Respondent had begun construction on the land. This brings me to the lower Court’s order of injunction made on the 24th of September, 2012 and other signs of the Appellant’s interest in the land which were said to have been pasted on the land soon after the order was made. As reproduced moment ago, the 1st Respondent’s answer to this is simply that “…the Appellant was the architect his own misfortune”. Worst is the 2nd Respondent’s silence as demonstrated in the arguments under the second issue in his brief, forgetting however that way back on the 17th of October, 2012 during the hearing of the Appellant’s application for extension of the tenor of the interim order of injunction issued earlier by the lower Court, it became manifest that the 2nd Respondent was aware of the lower Court’s order of injunction stopping works on the land. Indeed, the lower Court put it thus:
“Responding, Defendant counsel submits that when the order of Court was served on him, I informed my client not to carry on any development work on the site and they assured me that they stopped working on the cite.”
See page 845 of the Supplementary Record.

The 2nd Respondent can not now pretend ignorance of the lower Court’s Order of injunction. Sadly however, instead of complying with the Court’s Order of injunction, the 2nd Respondent accelerated the pace of the work on the land to completion; in order to overreach the Appellant and hoist on the Court a fait accompli. More worrisome is the lower Court’s unwillingness to assert its authority in the face of the contemptuous act of the 2nd Respondent. With respects, that ought not to be. See Shugaba vs UBN Plc (1999) LPELR-3068(SC).

Having earlier held that the lower Court was wrong in relying on Exhibit “A” to find and pronounce Exhibit “G” valid, the revocation of the Appellant’s title in the land is invalid and unsustainable.

More importantly however, having earlier held that the lower Court was in error in relying on Exhibit “A” to find the Appellant guilty of breach of contract and in consequence wrongly pronouncing Exhibit “G” valid, there was in law no valid revocation of Exhibit “J” but its breach by the 1st Respondent who arbitrarily purported to determine it by wrongly relying on the superseded Exhibit “A”. The contract between the Appellant and the 1st Respondent in exhibit thus having not been revoked, Exhibit “J” subsists; the direct implication being the nullity of the 2nd Respondent’s Exhibit “P”. By virtue of Clause 3 of Exhibit “J” (supra), the Appellant has had valid, fun possession of the land till date; notwithstanding the attempt by the 1st Respondent in introducing, teleguiding and misleading the 2nd Respondent into a comedy of errors marked by the execution of Exhibit “P” and by the recalcitrant act of the 2nd Respondent in continuing and accelerating his building project on the land in dispute after becoming aware of the lower Court’s Order of injunction on it. Neither will the 1st Respondent be absolved of liability for the breach of Exhibit “J” nor will the 2nd Respondent be accommodated thereby whether under Exhibit “P” or howsoever. Exhibit “P” can not coexist with Exhibit “J”, the latter being the only legally recognized subsisting contract over the land in dispute. See Omiyale vs Macaulay (2009) & NWLR (Pt. 1141), 597, Kari vs. Ganaram & Ors (1997) LPELR-1666 (SC), Tewogbade vs. Obadina (1994) 4 NWLR (Pt. 338), 328 and Anyawale vs. Odusami (2011) 12 SCNJ, 362 at 379. In effect, the Appellant’s issue 5 together with the 1st Respondent’s issue 2 and the 2nd Respondent’s issue 5 are resolved in favour of the Appellant.

In the manner issue 5 has been considered and resolved, the Appellant’s issue 3 in the manner prefaced earlier herein becomes of no moment whatsoever.

I now return to the Appellant’s issue 4 which questions the lower Court’s finding that the identity of the land in question was in dispute. The pith of the Appellant’s argument under this issue is that the parties neither joined issues nor led evidence on any dispute on identity of the land in question and that the issue was introduced only in the final written address of the 2nd Respondent; on which the lower Court based its finding that there was dispute on the identity of the land. For the 1st Respondent, there is no argument or comment on this issue. For the 2nd Respondent however, the only comment is as follow:
“7.8. The Appellant, having admitted that the land he bought is different from the land the 2nd Respondent bought cannot be heard claiming title of the 2nd Respondent’s land and his appeal for that purpose must fail. We urge the Court to resolve this issue in favour of the 2nd Respondent.”

With utmost respects, I will express my disappointment with both learned counsel for the Appellant and the 2nd Respondent here. Throughout the length and breath of the arguments by the Appellant’s learned counsel, no reference is made to any particular portion or page of the lower Court’s judgment where the finding complained against can be found. It is the duty of the counsel for the parties to relate arguments to specific quotes in or portion(s) of the judgment instead of inviting the Court of Appeal to embark on a wild goose chase in search of which finding(s) in the judgment the counsel might have in mind. The least expected from the learned counsel more particularly, an Appellant’s counsel, is to refer to page(s) where such finding(s) can be found, more particularly where, as in the instant case, the judgment of the lower Court is lengthy, containing numerous related findings. In this situation, this Court discountenances the Appellant’s Issue 4.

The Appellant’s last Issue no. 6 by which he questions the lower Court’s failure to admit in evidence pictures, video CD and memory card tendered by the Appellant to further prove some orally agreed modalities on the payment of the maintenance/ supervision fees etc is, in my respectful view no longer a potent issue in view of the resolutions of the Appellant’s issues 1 and 2 herein earlier. This issue too is thus discountenanced.

The main issues for the Appellant namely his issues 1, 2 and 5 which as shown earlier herein are also the main Issues as argued for the 2nd Respondent together also with the 1st Respondent’s two Issues have all been resolved in favour of the Appellant. These issues were what the entire trial was all about as well as the main issues also in this appeal. From the foregoing resolutions, it is clear that the lower Court erred significantly in holding that there ceased to be a valid binding contract between the Appellant and the 1st Respondent over the land in issue at no 118 Congress Court Estate Dakwa Abuja; because as determined herein, that contract subsists. It thus also erred when it declared the 2nd Respondent the lawful owner of the said land. It erred further when it held that the 1st Respondent was, on the evidence, entitled to revoke the contract in Exhibit “J” in the manner he did and that Exhibit “G” (the revocation letter) is thus valid. Consequently, those findings are set aside. The Appeal therefore succeeds. The lower Court wrongly failed to enter judgment for the Appellant.

By the power conferred on this Court under Section 15 of the Court of Appeal Act 1976, this Court may make any order necessary for determining the real question in controversy in the appeal. In effect, the Court is empowered by the provisions of Section 15 of the Act to make any Order(s) that would ensure the determination on the merits of the real question in controversy between the parties. See Okoya vs. Santilli (1990) 2 NWLR (Pt. 130), 172, Inakoju vs. Adeleke & Ors (2007) 29, NSCQR (Pt. 2), 955, Usman vs. Kaduna State House of Assembly & Ors (2007) 11 NWLR (Pt 1044), 148 at 161, Wilbros Nig. Ltd & Anor vs. Onwume Macaulay (2009) LPELR-CA/PH/177/96. 

In interpreting the Section, this Court in NDDC vs. NLNG Ltd (2010) LPELR-CA/PH/520/2007 held, per Owoade JCA that:
“…A constructive and holistic reading of the provision of Section 15 of the Court of Appeal Act simply means that in the determination of the real question in controversy, the Court of Appeal could “step into the shoes” of the lower Court.”

The real question in controversy in this appeal is the failure of the lower Court to enter judgment for the Appellant. The reliefs sought by the Appellant in the trial are for:
“a. A declaration that a binding contract of sale of plot of land measuring 317 square meters, located, known as and called No. 11B Congress Court Estate, Dokwo District Abuja, exists between the Plaintiff and 1st Defendant.
b. A declaration that the Plaintiff is the lawful owner of plot of land measuring 317 square meters, located, known as and called No. 11B Congress Court Estate, Dokwo District Abuja.
c. A declaration that the letter dated 23rd April, 2012, purporting to revoke Plaintiff’s title over plot of land measuring 317 square meters, located, known as and called No. 11B Congress Court Estate, Dokwo District Abuja, did not revoke or affect Plaintiff’s title to the said land and it is of no effect, null and void.
d. A declaration that the 1st Defendant has no right in law and is not capable of revoking the Plaintiff’s title over plot of land measuring 317 square meters, located, known as and called No. 11B Congress Court Estate, Dakwo District Abuja.
e. A declaration that the Plaintiff is entitled to immediate use and occupation of Plot of land measuring 317 square meters, located, known as and called No. 11B Congress Court Estate, Dakwo District Abuja.
f. An order of perpetual injunction against the 1st and 2nd Defendants, their agents, assigns, or those claiming through them from interfering with the Plaintiff’s enjoyment, quiet possession, occupation and development of plot of land measuring 317 square meters, located, known as and called No. 11B Congress Court Estate, Dakwo District Abuja.
g. The sum of N184,000.00 (One Hundred and Eighty Four Thousand Naira), against 1st and 2nd Defendants, jointly and severally, being the cost of the building materials deposited on the land by the Plaintiff, which were used up by the 1st and 2nd Defendants.
h. N40,000,000.00 (Forty Naira as general damages against 1st Defendant for breach of contract.
i. N20,000,000.00 (Twenty Million Naira as genera! damages against 1st and 2nd Defendants, jointly and severally, for trespass.
j. The cost of this suit assessed at N1,000,000.00 (One Million Naira), against 1st and 2nd Defendants, jointly and severally.
k. 10% post-judgment interest, on the total judgment sum from the date of judgment until liquidation.
ALTERNATIVELY:
l. The refund of the sum of N8,400,000.00 (Eight Million and Four Hundred Thousand Naira), being the purchase price of the land in dispute, which Plaintiff paid to the 1st Defendant.
m. The sum of N420,000.00 (Four Hundred and Twenty Thousand Naira), which the 1st Defendant caused the Plaintiff to pay its agent, being 5% of the total cost of the land in dispute.
n. The sum of N184,000.00 (One Hundred and Eighty-Four Thousand Naira), against 1st and 2nd Defendants, jointly and severally, being the cost of the building materials deposited on the land by the Plaintiff, which were used up by the 1st and 2nd Defendants.
o. N50,000,000.00 (Fifty Million Naira) as general damages against 1st and 2nd Defendants, jointly and severally.
p. The cost of this suit assessed at N1,000,000.00 (One Million Naira), against 1st and 2nd Defendants, jointly and severally.
q. 10% Post-judgment interest, on the total judgment sum from the date of judgment until final liquidation.”

In the circumstances of the appeal, this Court agrees with the lower Court that the Appellant is entitled to the alternative reliefs claimed but in the following terms:
i. Refund by the 1st Respondent to the Appellant of the sum of the purchase price of the land in issue in the sum of N8,400,000.00 (Eight Million, Four Hundred Thousand Naira).
ii. Payment by the Respondents jointly of the sum of N184,000.00 (One Hundred and Eighty-Four Thousand Naira) being the cost of the building materials deposited on the land by the Appellant.
iii. General damages in the sum of N20,000,000.00 (Twenty Million Naira) payable by the Respondents jointly and severally to the Appellant for the breach of contract (Exhibit “J”) and the sufferings caused the Appellant by the duo.
iv. Cost of the suit incurred by the Appellant assessed at N1,000,000.00 (One Million Naira) against the Respondents jointly and severally; and
v. 10% post-judgment interest on the total judgment sum from today until final liquidation;
are hereby ordered.

However, the sum of N420,000.00 (Four Hundred and Twenty Thousand Naira) which the Appellant claims to have paid to one Yemisi Olajub as agency fees not being one covered by or shown to have been based on any clause of the contract (Exhibit “J”) and the said Yemisi Olajubu not having been made a Defendant in the trial can not be granted against the Respondents.

On the whole therefore, the findings and orders made by the lower Court in the judgment at pages 910 – 912 of the Supplementary Record are hereby set aside and substituted with the orders hereinbefore made. I make no order on cost on this appeal.

PETER OLABISI IGE, J.C.A.: I had the advantage of reading in advance the draft judgment of my learned brother – GAFAI, JCA.

I agree with his findings, reasoning and conclusion arrived at which is very lucid as elaborated in the leading judgment. I also adopt them as mine in setting aside the findings and order rendered by the lower Court in Suit No. FCT/HC/CV/3995/12 Coram: AGBAZA, J., and consequently substituted with the orders therein contained in the leading judgment of my learned brother, GAFAI – JCA.
No order as to costs.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I was privileged to read in advance a draft copy of the leading judgment just delivered by my learned brother, Isah Bature Gafai JCA. I am completely satisfied with the consideration and resolution of all the diverse issues thrown up in this appeal. In the leading judgment. all these issues, which appeared at first glance to be so knotty, have been admirably put into their proper perspective and brilliantly considered and impeccably resolved.

My Lords, as between Exhibit A, which is a letter of offer and exhibit J, which is a subsequent sale agreement, I think, and it has been demonstrably so held in the leading judgment, that it is Exhibit J, which by clause 6.1 thereof, and as agreed by the parties, had clearly superseded the earlier agreement in Exhibit A. The lower Court glossed over the legal importance of the unfettered rights of panics, who had earlier entered into an agreement, to modify, amend and or enter a completely new agreement to supersede the terms of their earlier agreement. There is no law that inhibits parties to a written contract to do so. In law, parties of full capacity are bound by the terms of contract willingly entered into by them. They are equally free to discharge and or modify the terms so long as no third-party interest had accrued. See Mrs. Felicia Adenike Osokoya V. Mr. Rauf Owolabi Onigemo (2017) LPELR-42730 (CA), per Sir Biobele Abraham Georgewill JCA. See also Larmie V. D.P.M.S. Ltd (2005) 18 NWLR (Pt. 985) 438, Nika Fishing Co. Ltd. V. Lavina Corp (2008) 16 NWLR (Pt. 1114) 509, AG. Rivers State V. AG. Akwa Ibom State (2011) 8 NWLR (Pt. 1248) 85.

The lower Court was therefore, in grave error when it pinned and restricted the parties to the terms of Exhibit A as still extant, along with the terms of their new contract in Exhibit J, which by their own agreement superseded the agreement in Exhibit A. In law, the Court has no business either dictating to the parties the term of their agreement or making a new contract for them. The lower Court therefore, had not the power or jurisdiction to impose on the parties a combination of the terms in Exhibits A and J, when the parties had by clause 6.1 of Exhibit J moved away from the terms of Exhibit A. I liken the decision of the lower Court compelling, as it appears, the parties to carry along Exhibit A or to go back to Exhibit A, even when they had moved on to Exhibit J, as requiring the parties to either remain in Egypt or to return to Egypt even when they had consciously and voluntarily moved on to the land of Canaan.

My Lords, I thought I should pause to observe, even if merely for the purpose of completeness and or fulfilling all righteousness in relation to issue 4 regarding the identity of the land in dispute, that in law despite the tendency of parties to call land in dispute by different names or description, the Courts have always seen through such contrivances to determine the real issues in controversy between the parties as to who is the actual person entitled to be declared the owner of the land in dispute. Indeed, the identity of land in dispute is not put in issue merely in address of counsel, no matter how brilliant. Rather, it is put in issue on the averments in the pleadings of the parties and the subsequent evidence led thereon in support of the pleadings. It follows therefore, once the identity of the land in dispute is well known to the parties, it seizes to present itself as an issue over which a Court would proceed to expend its energy to consider and resolve. See Kwewum V. Eyi (2015) LPELR-25633 (CA) per Sir Bioeble Abraham Georgewill JCA. See also Gabdo V. Usman (2015) LPELR -25678 (CA) per Sir Biobele Abraham Georgewill JCA, Ogun V. Akinyelu (2004) 18 NWLR (Pt. 905) 368, Atolagbe V. Shorun (1985) 1 NWLR (Pt. 2) 360, Osho V. Ape (1998) 8 NWLR (Pt. 562) 449.

It is for the above few words of mine but for the fuller reasons admirably and set out in great detail in the leading judgment that I too hold that the appeal has merit and ought to be allowed. I too hereby allow the appeal in the manner set out in the leading judgment. I shall abide by the consequential orders made in the leading judgment, including the order as to no cost.

Appearances:

KAUNA PERZIN For Appellant(s)

L. O. IDUH – for 1st Respondent

F. T. YUSUF (MRS) – for 2nd Respondent For Respondent(s)