CORNET & CUBBIT LTD & ANOR v. FHA & ORS (2022)

CORNET & CUBBIT LTD & ANOR v. FHA & ORS

(2022)LCN/16303(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, March 23, 2022

CA/A/435/2018

Before Our Lordships:

Monica Bolna’anDongban-Mensem Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

BatureIsahGafai Justice of the Court of Appeal

Between

1. CORNET & CUBBIT LIMITED 2. CHIEF RALPH ANYAMA APPELANT(S)

And

1. FEDERAL HOUSING AUTHORITY 2. MR. NWOKENNAYA EPHRAIM 3. BLESSING NWOKENNAYA RESPONDENT(S)

RATIO:

AN APPELLANT MUST SUCCEED ON THE STRENGTH OF HIS OWN CASE

Now, in every civil action in which a declaration is sought from the Court, a Claimant such as the Appellants in the instant case, who seeks the declaratory relief must succeed on the strength of his own case as made out creditably in the evidence put forward by him in support of his case and not to merely rely on the weakness or even absence of the Defendant’s case. However, where the evidence of the Defendant supports the case of the Claimant, he is perfectly entitled to rely on such evidence. See Nsirim V. Nsirim (2002) FWLR (Pt. 96) 433 at P. 441. BIOBELE ABRAHAM GEORGEWILL, J.C.A.

THE WAYS OF PROVING TITLE TO LAND IN ORDER TO SUCCEED IN A CLAIM FOR DECLARATION OF TITLE TO LAND

By the claims as endorsed on the Writ of Summons and the averments in the 2nd Amended Statement of Claim, the Appellants’ claim was rooted in declaration of title to Plot 365 Road 39 Gwarinpa II Estate Abuja. In law, in a claim for declaration of title to land, a party claiming title to land in order to succeed must lead credible evidence in proof of one or more of the five methods or means or ways of proving title to land, namely:
1. Evidence of traditional history of title,
2. Production of genuine and valid documents of title,
3. Acts of Ownership,
4. Acts of possession over a long period of time, and
5. Act of possession of adjacent land long enough to make it probable that the owner of the adjacent land is also the owner of the land in dispute. See Idundun V. Okumagba (1976) 6 – 10 SC 48. See also Nruamah V. Ebuzoeme (2013) All FWLR (Pt. 681) 1426; Ani V. Ewo (2004) 1 SC (Pt. 11) 115 at P. 133;Romaine V. Romaine (1992) NWLR (Pt. 238) 650. BIOBELE ABRAHAM GEORGEWILL, J.C.A.

THE TEST OF THE CREDIBILITY AND VERACITY OF WITNESS UNDER CROSS – EXAMINATION

Thus, it would appear that the real test of the veracity and credibility of witness now is the evidence given under cross-examination. Happily, in law evidence elicited under cross-examination on the pleadings of either party is proper evidence before the Court to be acted upon if in supSport of the case of the cross-examining party. See Daggash V. Bulama (2004) 14 NWLR (Pt. 892) 144 at P. 241. See also Ofem & Anor V. Ewa & Ors (2012) LPELR – 7852 (CA), Bamgboye & Ors V. Olarewaju (1991) 4 NWLR (Pt. 184) 132 at p. 155, Gaji & Ors V. Paye (2003) 8 NWLR (Pt. 823) 583. BIOBELE ABRAHAM GEORGEWILL, J.C.A.

THE FAILURE TO FULFILL CONDITION PRECEDENT TO THE VALIDITY OF THE CONTRACT

In law, this failure to fulfil condition precedent to the validity of the contract between the 1st Respondent and the 1st Appellant is fatal and, in my finding, thereby rendered the relationship between the 1st Appellant and the 1st Respondent inchoate. This is so because in law once an agreement or relationship sought to be created is conditional, the non – fulfillment of the pre-conditions renders such agreement inchoate and unenforceable. In appropriate circumstances, it may even render such an agreement ‘null and void. BIOBELE ABRAHAM GEORGEWILL, J.C.A.

ONCE A CONDITIONAL PRECEDENT IS INCORPORATED INTO AN AGREEMENT IT MUST BE FULFILLED BEFORE THE EFFECT CAN FLOW

See Tsokwa Oil and Marketing Co. V. BON (2002) 11 NWLR (Pt 777) 163, where the Supreme Court had stated inter alia thus:
“It is trite law that once a condition precedent is incorporated into an agreement, that condition precedent must be fulfilled before the effect can flow. All conditions are (a) are conditions precedent i.e the sine qua non to getting the thing, or conditions subsequent, which keep and continue to the thing as to when conditions are precedent or subsequent.”
See also Nigerian Bank for Commerce and Industry V. Integrated Gas (Nig) Ltd (1999) 8 NWLR (Pt 613) 127, this Court per Aderemi JCA,(as he then was but later JSC) had stated inter alia thus:
“By Exhibits F and G, the parties have entered into what, in law is a conditional contract, the condition precedent must happen before either party becomes bound by the contract. A condition must be fulfilled before the effect can flow. A conditional contract would not become operational and binding until the stipulated condition precedents are fulfilled.” BIOBELE ABRAHAM GEORGEWILL, J.C.A.

FAILURE OF A PARTY TO COMPLY WITH THE CONDITION PRECEDENT IS FATAL AND INCURABLE

See further, Bilante International Ltd V. NDIC (2011) 6 SCNJ 481 at p. 498, where the Supreme Court per Onnoghen JSC, (as he then was but later CJN) had stated inter alia thus:
“Once it has been established that no enforceable contract exists between the parties, or that what took place between the parties does not translate to a contract between them, the foundation of the reliefs claimed collapseswith the absence of cause of action, which in this case is supposed to be breach of contract. In short, you cannot talk of the consequences of a breach of contract when no contract exists.”
And in Ozobia V. Anah (1999) 5 NWLR (Pt. 601) 13, this Court had per Iyizoba JCA, stated inter alia thus:
“The rule is that where the law places a condition precedent to the performance of a given act such an act cannot be said to have been duly performed without the fulfillment of the stated condition. Failure of a party to comply with the condition in the circumstance is fatal and incurable.” BIOBELE ABRAHAM GEORGEWILL, J.C.A.

THE EVALUATION AND ASCRIPTION OF PROBATIVE VALUE IS THE DUTY OF THE TRIAL COURT

In law, it is trite that evaluation and ascription of probative value to the evidence led is ordinarily the turf of the trial Court, and once a trial Court discharges that duty on the strength of the evidence placed before it, unless it arrives at perverse conclusions or findings not supported by the established evidence before it, an appellate Court will not interfere once the conclusions reached is correct, even if the reason which is the pathway to the conclusion or finding turns out to be wrong. See Alhaji Ndayako & Ors V. Alhaji Dantoro & Ors (2004) 13 NWLR (Pt. 889) 187 at p. 198, where Edozie, JSC., had pronounced with finality on this issue, thus:
“An appellate Court is only concerned with whetherthe judgment appealed against is right or wrong not whether the reasons given are right or wrong. Where the judgment is right but the reasons given are wrong, the appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the appellate Court will interfere….”
See alsoAbaye V. Ofili (1986) 1 NWLR (Pt. 15) 134 and Ukejianya V. Uchendu 18 WACA 46. BIOBELE ABRAHAM GEORGEWILL, J.C.A.

A PLEA OF REVOCATION RAISES A PRESUMPTION

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of the Federal Capital Territory Abuja, Coram: Peter O. Affen J., (as he then was) in Suit No. FCT/HC/CV/3313/2013: Cornet & Cubit Ltd & Anor V. Federal Housing Authority &Ors delivered on 14/12/2017, in which the claims of the Appellants as Claimants against the Respondents as Defendants were dismissed for lacking in merit.

The Notice of Appeal was filed on 13/3/2018 on six grounds of appeal. See pages 427 – 433 of the Record of Appeal. The Record of Appeal was duly compiled and transmitted to this Court on 16/5/2018. The parties filed and exchange their briefs, which were adopted as their arguments at the hearing of this appeal on 8/2/2022. Whilst Emmanuel I. Oboh Esq., represented the Appellant, the 1st Respondent was represented by EdidiongUsungurua Esq., leading Duncan Oluohu Esq., the 2nd and 3rd Respondents were represented by Val Igboanusi Esq.

By a Writ of Summons filed on 23/5/2023 and an Amended Statement of Claim filed on 1/12/2015 before the Court below, the Appellants asClaimants claimed against the 1st and 2nd Respondent, to which the 3rd Respondent was subsequently joined, as Defendants, for the following reliefs, to wit:
1. A Declaration that the allocation of Plot No. 365, 39 Road, Gwarinpa II Estate, Abuja by the 1st Defendant to the Plaintiffs vide a Letter of Allocation headed; ‘Allocation Of A Residential Plot Of Land At Gwarinpa II Estate, Abuja’ dated 22/10/1999 is still extant, valid and subsisting.
2. A Declaration that the said parcel of land is at all material times the property of the Plaintiffs.
3. A declaration that the act of the 1st Defendant in purporting to re-allocate the parcel of land as Plot No. 365, 39 Road, Gwarinpa II Estate, Abuja already belonging to the Plaintiffs to the 3rd Defendant is illegal and constitutes a violation of the subsisting right/interest of the Plaintiffs over the said portion of land, and is therefore null and void.
4. An order of the Court granting perpetual injection restraining the Defendants either by themselves or acting through any of their agents, servants and/or privies from trespassing or further trespassing, carrying out anyform of building operation on the property, or harvesting of crops or economic trees, in any form whatsoever on all that piece or parcel of land known as Plot No. 365, 39 Road, Gwarinpa II Estate, Abuja.
5. And order of the is Court restraining the Defendants whether individually or collectively or by themselves or their servants or agents or privies in any other form whatsoever from further trespassing or entering or claiming or disputing the Plaintiffs’ title to the said piece of land or parcel of land known as Plot No. 365, 39 Road, Gwarinpa II Estate, Abuja.
6. The sum of N5, 000, 000. 00 being general damages against the Defendants in favour of the Plaintiffs for trespass.
7. Other reliefs as the Court may deem fit to make and costs of the action. See pages 1 – 15 and 185 – 191 of the Record of Appeal.

BRIEF STATEMENT OF FACTS
The gist of the case of the Appellants as Claimants before the Court below as can be gleaned from the averments in their pleadings and the evidence, both oral and documentary, led as in the Record of Appeal was that by Exhibit P1, a letter of allocation dated 22/10/1999, the 1st Respondentallocated Plot 365, 39 Road, Gwarimpa II Estate, Abuja to the 1st Appellant, which allocation was accepted vide Exhibit P3, a letter dated 21/12/99, and paid to the 1st Respondent the sum of N100, 000. 00 vide Exhibit P4 as premium fees, which was duly receipted for by the 1st Respondent vide Exhibit P5. Subsequently, on the publication of Demand Notice for payment of Development Charges made by the 1st Respondent, the Appellants paid the sum of N500,000.00 to the 1st Respondent vide Exhibit P7, which was duly receipted for on 28/11/2001 vide Exhibit P8. However, despite all these payments they failed to provide Road 39 to make the land allocated to the 1st Appellant accessible to the Appellants for the purposes of any development.

Surprisingly, on 4/8/2011 the 1st Respondent purported to revoke the allocation of Plot 365, 39 Road, Gwarimpa II Estate, Abuja made to the 1st Appellant vide Exhibit P10, which purported revocation the Appellants vehemently protested against to the 1st Respondent but to no avail. On a visit to the said Plot of land in company of a staff of the 1st Respondent, the 2nd Appellant discovered that the 1st Respondent had re -allocated the said Plot of land to the 2nd and 3rd Respondents who had hurriedly constructed a fence and borehole thereon. See pages 1 – 15, 116 – 119, 185 – 191, 206 – 215, 219 – 221, 346 – 351 and 366 – 373 of the Record of Appeal.

On the other hand, the gist of the case of the 1st Respondent as the 1st Defendant before the Court below as can be gleaned from the averments in its pleadings and the evidence, both oral and documentary, led as in the Record of Appeal was that the 1st Respondent allocated the Plot in dispute to the 1st Appellant but the 1st Appellant failed to comply with the terms of Clause 4 of Exhibit P1 and therefore, failed to fulfil the condition for the issuance of formal letter of offer to the 1st Appellant, which formal letter of offer would have included the detailed terms and condition of the agreement between the 1st Respondent and the 1st Appellant in respect of the said Plot.

The 1st Appellant failed to the said Plots after nearly 13 years of allocation despite the publication of the intention of the 1st Respondent to revoke the Plot vide Exhibit D13, a publication in the Daily Champion of 30/8/2001. Consequently, on4/10/2011 the 1st Respondent duly revoked the allocation to the 1st Appellant, which Plot had remained undeveloped and same being free and unencumbered was subsequently allocated to the 3rd Respondent vide Exhibit D14 for the sum of N2, 509, 371. 26, which amount was duly paid by the 3rd Respondent and duly receipted for by the 1st Respondent vide Exhibit D15. See pages 143 – 144 and 377 – 384 of the Record of Appeal.

On their part, the gist of the case of the 2nd and 3rd Respondents as the 2nd and 3rd Defendants before the Court below as can be gleaned from the averments in their pleadings and the evidence, both oral and documentary, led as in the Record of Appeal was that the 3rd Respondent applied and was allocated the Plot in dispute by the 1st Respondent vide Exhibit D14, a letter of allocation dated 17/8/2011, for which the 3rd Respondent paid the sum of N2, 509, 371. 26 to the 1st Respondent, which payment was receipted for vide Exhibit D15. The 3rd Respondent went into immediate possession and constructed a building therein in 2012 without any let or hindrance, which building had since been let out to tenants in peaceful occupation until afterabout three years when the 1st Appellants, whose allocation has been duly revoked, showed up to lay a false claim of ownership to the said Plot of land, which belongs to the 3rd Respondent. See pages 213 – 215, 385 and 387 – 392 of the Record of Appeal.

At the close of pleadings, the matter proceeded to trial before the Court below. The Appellants as Claimants called one witness, the 2nd Appellant, who testified as PW1 and tendered several documents, which were admitted in evidence as Exhibits P1 – P11. In its defence, the 1st Respondent also called one witness, one ObiageliAcholonu and tendered some documents, which were admitted as Exhibits D12 and D13. On their part, the 2nd and 3rd Respondents also called one witness, the 3rd Respondent, who testified as DW2 and tendered some documents, which were admitted in evidence as Exhibits D14 and D15. On 14/92017, the parties adopted their final written addresses, and on 14/12/2017, the Court below delivered its judgment, in which all the claims of the Appellants as Claimants against the Respondents as Defendants were dismissed for lacking in merit, hence this appeal. See pages 399 – 426 and 247 – 433 of theRecord of Appeal.

ISSUES FOR DETERMINATION
In the Appellants’ brief, three issues were distilled as arising for determination from the six grounds of appeal, namely:
1. Whether there is no legally enforceable agreement between the 1st Appellant and the 1st Respondent over one of the Plot of land in dispute, consequential to which the Court below was correct in deciding that the said agreement was only inchoate? (Distilled from Grounds 1, 2 and 3)
2. If the answer to issue one above is to the effect that the Court below was not justified in its said decision, then whether the revocation of the allocation of the one Plot of land, carried out by the 1st Respondent against the 1st Appellant, accords with the law and the same exercise is not null, void and of no effect? (Distilled from Grounds 4 and 5)
3. If the above issues one and two are resolved in favour of the Appellants, then whether the re-allocation of the said one Plot of land by the 1st Respondent in favour of the 3rd Respondent is null, void and of no effect whatsoever? (Distilled from Ground 6)

In the 1st Respondent’s brief, three issues were alsodistilled as arising for determination in this appeal, namely:
1. Whether the Court below was not right in holding that Exhibit P1 did not constitute a complete transaction between the 1st Appellant and the 1st Respondent but remained inchoate at all material times, the consequence of which was that the contractual relationship sought to be consummated by it between the parties did not crystalize having regard to the non – fulfilment of the conditions precedent stipulated in that Exhibit P1? (Distilled from Grounds 1, 2 and 3)
2. Whether the Court below was not right when it held that a valid lease must first be in existence before same can be said to be governed by its express terms or implied conditions under Section 7 of the State Lands Act and that the absence of a valid offer letter issued to the 1st Appellant rebutted the presumption of lease created by the issuance of a Notice of Revocation to the 1st Appellant? (Distilled from Grounds 4 and 5).
3. Whether the Court below was not right in holding that the 3rd Respondent acquired a valid tittle to the land in dispute on the ground amongst others that no tittle whatsoever resided in the1st Appellant? (Distilled from Ground 6)

In the 2nd and 3rd Respondents’ brief, three issues were also distilled as arising for determination in this appeal, namely:
1. What is the legal implication of a non-issuance of formal letter of offer to the 1st Appellant in the instant case? (Distilled from Grounds 1 and 2)
2. Whether a letter of revocation to a non-existent title can confer validity of title to land in dispute? (Distilled from Ground 3)
3. Whether trespass is rooted in possession and if the 3rd Respondent is a bona – fide allottee and purchaser without Notice? (Distilled from Grounds 4, 5 and 6)

I have taken time to consider the averments in the pleadings of the parties together with the evidence, both oral and documentary as led by them as in the Record of Appeal. I have also considered the submissions of learned counsel to the parties in their respective briefs in the light of the findings and decisions reached in the judgment of the Court below and I am of the firm view that the apt issues arising for determination in this appeal are the three issues as distilled in the Appellants’ brief, aconsideration of which, in my view, would invariably involve a consideration of the three issues as distilled in each of the 1st Respondent and 2nd and 3rd Respondents’ respective briefs. I shall consider the three issues ad seriatim, commencing anon with issue one.

ISSUE ONE
Whether there is no legally enforceable agreement between the 1st Appellant and the 1st Respondent over the one plot of land in dispute, consequential to which the Court below was correct in deciding that the said Agreement was only inchoate?

APPELLANTS’ COUNSEL SUBMISSIONS
On issue one, learned counsel for the Appellants had submitted inter alia that the Court below was wrong when it held that there was no complete agreement between the 1st Respondent and the 1st Appellant over the one Plot of land merely on account of the failure of the 1st Respondent to issue a formal letter of offer embodying the detail of the terms and conditions of the said allocation on the ground that Exhibit P1 could not by itself alone constitute a valid offer of the said Plot of land by the 1st Respondent to the 1st Appellant and contended that it was curious that not even thereceipt of the whopping sum of N500, 000. 00 by the 1st Respondent from the 1st Appellant would sway the mind of the Court below in reaching the correct conclusion that there must have been a completed agreement between parties and urged the Court to hold that the Court below erred gravely when it held that because the 1st Respondent did not directly demand the payment of the sum of N500, 000. 00 from the 1st Appellant and despite the fact that 1st Respondent allowed 1st Appellant to participate in the subsequent verification exercise that indicated that the 1st Appellant’s allocation still remained sacrosanct, the allocation to the 1st Appellant by the 1st Respondent remained inchoate due to absence of a formal letter of offer contrary to the proved facts in the evidence led before it and to allow the appeal set aside the perverse judgment of the Court below and grant the claim of the Appellants against the Respondents. Counsel relied on Osho V. Foreign Finance Corporation (1991) 4 NWLR (PT. 184) 157 at page 189 and Ogunbambi V. Abowaba (1951) 3 WACA 222.

It was also further submitted that on the proved facts and circumstances of the instant case there was no necessity made out for the issuance of any formal letter of offer, subsequent to a letter of allocation, which alone embodied all the terms and conditions of the allocation and which was duly accepted by the 1st Appellant and all the terms and conditions duly fulfilled by the 1st Appellant as required by law and contended that the 1st Respondent apart from tendering a purported specimen of formal letter of offer failed to tender any such formal letter of offer actually ever issued to any of its allotees of land, including the purported allotee of the land in dispute, the 3rd Respondent, and urged the Court to hold that aside of Exhibit P1, letter of allocation to the 1st Appellant by the 1st Respondent and Exhibit P3, acceptance of same by the 1st Appellant, by the conduct of parties, there was a complete agreement for an assignment of requisite interest in the one Plot of land in dispute by the 1st Respondent to the 1st Appellant, and amounting to a legally enforceable agreement between parties by the subsequent payment for the allocation which conferred title of the land on the 1st Appellants and to allow the appeal, set aside the perverse judgment of the Court below and enter judgment in favour of the Appellants as per their claims against the Respondents. Counsel referred to Section 169 of the Evidence Act 2011 and relied on Best Nigeria Ltd V. Blackwood Hodge (Nig) Ltd (2011) 15 WRN 1 at p. 31, Odu’a Investment Co. Ltd V. Akinyemi (2002) FWLR (Pt. 84) 172 at p. 188, Olu Okugbule V. Oyegbola (1990) 4 NWLR (Pt. 147) 723 Registered Trustees of the Apostolic Faith Mission & Anor V. James & Anor (1987) 3 NWLR (Pt. 61) 556 and Okoye V. Dumez Nigeria Ltd (1985) 1 NWLR (Pt. 4) 783 at p. 790.

1ST RESPONDENT’S COUNSEL SUBMISSIONS
On his issue one, learned counsel for the 1st Respondent had submitted inter alia that the Court below was right when it held that Exhibit P1 did not constitute a complete transaction between the 1st Appellant and the 1st Respondent but remained inchoate at all material times with the consequence that the contractual relationship sought to be consummated by that Exhibit P1 between the parties did not crystalize and contended that in law the non – fulfilment of the conditions precedent as stipulated in Exhibit P1 rendered the relationship between the 1stAppellant and the 1st Respondent inchoate since in law once an agreement or relationship sought to be created is conditional, the non – fulfillment of the pre-conditions renders such agreement inchoate and unenforceable and inappropriate instances null and void and urged the Court to hold that in the absence of fulfilment of Clause 4 of Exhibit resulting into absence of any detailed terms and conditions of the allocation, the interest sought to be created cannot be said to have crystalized into a valid legal title in the 1st Appellant, which findings by the Court below were not appealed against by the Appellant and therefore, remain valid, binding and subsisting and to dismiss the appeal and affirm the sound judgment of the Court below. Counsel relied on Amale V. Sokoto Local Government & Ors (2012) LPELR – 7842 (SC), Kraus Thompson Org. Ltd. V. UNICAL (2004) 9 NWLR (Pt. 879) 63 1 at P. 642, Okonkwo V. INEC (2004) 1 NWLR (Pt. 554) 242 at p. 256, Okonkwo V. Okonkwo (2004) 5 NWLR (Pt. 565) 83 at p. 97, Ben Obi Nwabueze V. Justice Obi Okoye (1988) 10 – 11 SCNJ 61, Igercare Development Company Ltd. V. Adamawa State Water Board & Ors (2008) LPELR – 1997(SC)25, Orakul Resources Ltd V. NCC (2007) 16 NWLR (Pt. 1060) 270 at p. 307 and Tsokwa Oil and Marketing Co. V. BON (2002) 11 NWLR (Pt 777) 163.

It was also submitted that in law Exhibit P1 does not amount to a valid lease and contended that the existence of a valid lease is a condition precedent to its being governed by its express terms or implied terms under Section 7 of the State Land Act and urged the Court to hold that Court below was right when it held that in law a valid lease must first be in existence before same can be said to be governed by its express terms or implied conditions under Section 7 of the State Lands Act and further held that the absence of a valid offer letter issued to the 1st Appellant rebutted the presumption of lease created by the issuance of a notice of revocation to the 1st Appellant ad to dismiss the appeal and affirm the correct findings and conclusions of the Court below to the effect that there was no lease between the 1st Appellant and the 1st Respondent and therefore, Section 7 of the State Lands Act was inapplicable since the law is ‘ex nihilo nihil fit’ – one cannot possibly build up something on nothing. Counsel relied on Management Enterprises Ltd & Anor V. Otusanya (1987) LPELR – 1834 (SC); Re: Apeh & Ors V. Pdp & Ors (2017) LPELR – 42035 (SC) and UAC V. Macfoy (1961) 3 All ER 1169.

2ND AND 3RD RESPONDENTS’ COUNSEL SUBMISSIONS
On his issue one, learned counsel for the 2nd and 3rd Respondents had submitted inter alia that the entire case of the Appellants was founded on Exhibit P1, the Allocation Letter and Exhibit P8, the Revocation Letter, and Exhibit D14, the re-allocation letter of the same Plot 365 Road 39 to the 3rd Respondent by the 1st Respondent and contended that in law Exhibit P1 was a mere letter of designated site or parcel of land upon which a Formal Letter of Offer will be issued upon fulfillment of certain conditions and urged the Court to hold that since the conditions were not fulfilled and no formal letter of offer was made to as translate into a formal contract between the Appellants and the 1st Respondent there was no valid and enforceable contract between the 1st Appellant and the 1st Respondent to confer any valid title on the 1st Appellant to Plot 365 Road 39 Gwarinpa II Estate, Abuja and to dismiss theappeal for lacking in merit and affirm the correct findings and conclusions of the Court below in the judgment appealed against. Counsel relied on Ihunwo V. Ihunwo (2013) 8 NWLR (Pt.1357) 550 at P. 583,Oduye V. Nigeria Airways Ltd (1987) 2 NWLR (Pt. 55) 126, Bilante International Ltd V. NDIC (2011) 6 SCNJ 481 at p. 498, Best Nig. Ltd V. Blackwood Hodge (Nig) Ltd (2011) 5 NWLR (Pt. 1239) 35, Orakul Resources Ltd V. NCC (2007) 16 NWLR (Pt. 1060) 270 at P. 302, Tsokwa Oil & Marketing Co. V. Bank of The North(2002) 5 SCNJ 176, Sona Breweries Plc V. Peters (2005) 1 NWLR (Pt. 908) 478 at P. 479, Ozobia V. Anah(1999) 5 NWLR (Pt. 601) 13.

APPELLANTS’ COUNSEL REPLY TO 1ST RESPONDENT SUBMISSIONS
In his reply, learned counsel for the Appellants mainly reiterated his earlier submissions but in law the reply brief is not an avenue for an Appellant to re-argue his appeal or merely to have a second bite at the cherry. The reply brief is for the serious business of answering to new points or fresh issues raised in the Respondent’s brief, which were not covered by the submissions in the Appellant’s brief. It need not and ought not to be filedjust as a matter of course even where there is nothing new or fresh in the Respondent’s brief to respond to by the Appellant. See Order 19 Rules 5 (1) of the Court of Appeal Rules 2016. See also Olafisoye V. FRN 2004 1SC Pt. 11 27, Ikine V. Edjerode (2001) 12 SC (Pt. 11) 94, Longe V. FBN (2010) 2 – 3 SC 61, Registered Trustees, Ikoyi Club 1938 V. Mr. Timothy Ikujuni (2019) LPELR – 47373 (CA). I shall therefore, review albeit briefly, only those submissions that are in response to submissions in the 1st Respondent’s brief, while leaving out all the repetitions.

It was reiterated that there was no evidence before the Court below of the practice of the 1st Respondent to issue formal letter of offer subsequent to a letter of allocation and contended that the evidence of receipt of N100, 000.00 and N500, 000. 00 from the 1st Appellant by the 1st Respondent coupled with the verification exercise conducted by the 1st Respondent’s agent confirming the allocation to the 1st Appellant, dispensing with the need for issuance of a formal letter of offer, amounted to creating a valid contract between the 1st Appellant and the 1st Respondent,which is enforceable in a Court of law, contrary to the perverse finding of the Court below, and urged that to so hold and allow the appeal, set aside the perverse judgment of the Court below and grant the claims of the Appellants against the Respondents. Counsel referred to Section 169 of the Evidence Act 2011.

APPELLANTS’ COUNSEL REPLY TO 2ND AND 3RD RESPONDENTS
In his reply, learned counsel for the Appellant also merely reiterated his earlier submissions and further submitted inter alia that it was the same kind of letter of allocation issued by the 1st Respondent to the 1st Appellant that was also issued by the 1st Respondent to the 3rd Respondent, and without any formal letter of offer and contended that the finding by the Court below in favour of one of these allocation letters against the other amounted to an application of double standard, which ought to be set aside and urged the Court to hold that on the facts and circumstances as proved in evidence by the parties, the 1st Respondent was not in any practice of issuing formal letters of offer to its allottees and to allow the appeal and set aside the perverse judgment of the Courtbelow and grant the claims of the Appellants against the Respondents.

RESOLUTION OF ISSUE ONE
My Lord, the President of this Court and my Lord my brother, issue one for determination has thrown up for consideration and resolution several crucial issues of great significance on transactions between the 1st Respondent and its allotees, ranging from the legal status of the 1st Respondent’s letter of allocation; the significance of each of clauses in the 1st Respondent’s letter of allocation; the place of a formal letter of offer from the 1st Respondent to its allottee, what in law would constitute a valid complete agreement between the 1st Respondent and the 1st Appellant and whether or not Exhibit P1, the 1st Respondent’s letter of allocation of Plot 365 Road 39, Gwarinpa II Estate Abuja to the 1st Appellant, couple with the payment at different times of the sums of N100, 000.00 and N500, 000. 00 by the 1st Appellant to the 1st Respondent and the verification exercise carried out by the agent of the 1st Respondent affirming the allocation to the 1st Appellant conferred on the 1st Appellant ownership rights over the said Plot 365Road 39 Gwarinpa II Estate Abuja for which the Court below ought to have awarded title to the said plot of land in dispute to the Appellants, more particularly, the 1st Appellant?

I have taken time to review the pleadings of the parties and considered the totality of the evidence, both oral and documentary, as led by the parties through their witnesses. The evidence in chief and cross-examination of PW1 are at pages 219 – 221, 116 – 119, 346 – 351, and 366 – 373 of the Record of Appeal. The evidence in chief and cross-examination of DW1 are pages 143 – 144 and 377 – 384 of the Record of Appeal. The evidence in chief and cross-examination of the DW2 are at pages 213 – 215, 385, 387 – 392 of the Record of Appeal.

Now, in every civil action in which a declaration is sought from the Court, a Claimant such as the Appellants in the instant case, who seeks the declaratory relief must succeed on the strength of his own case as made out creditably in the evidence put forward by him in support of his case and not to merely rely on the weakness or even absence of the Defendant’s case. However, where the evidence of the Defendant supports the case of theClaimant, he is perfectly entitled to rely on such evidence. SeeNsirim V. Nsirim (2002) FWLR (Pt. 96) 433 @ P. 441.

By the claims as endorsed on the Writ of Summons and the averments in the 2nd Amended Statement of Claim, the Appellants’ claim was rooted in declaration of title to Plot 365 Road 39 Gwarinpa II Estate Abuja. In law, in a claim for declaration of title to land, a party claiming title to land in order to succeed must lead credible evidence in proof of one or more of the five methods or means or ways of proving title to land, namely:
1. Evidence of traditional history of title,
2. Production of genuine and valid documents of title,
3. Acts of Ownership,
4. Acts of possession over a long period of time, and
5. Act of possession of adjacent land long enough to make it probable that the owner of the adjacent land is also the owner of the land in dispute. See Idundun V. Okumagba (1976) 6 – 10 SC 48. See alsoNruamah V. Ebuzoeme (2013) All FWLR (Pt. 681) 1426; Ani V. Ewo (2004) 1 SC (Pt. 11) 115 @ P. 133;Romaine V. Romaine (1992) NWLR (Pt. 238) 650.
The Appellants thus had open to them one or more of theabove five methods to prove their title to the Plot of land in dispute. The law is that proof of any one or more of these five methods or means by credible evidence would be sufficient to ground an action for declaration of title to land.

In the instant appeal, the Appellants had relied on production of title document, as in Exhibits P1, coupled with payment receipts made to the 1st Respondent in respect of and over the said Plot of land as their root of title to the said Plot of land in dispute. They were therefore, under a duty to prove by credible evidence their title to the Plot of land in dispute by means of production of documents of title as pleaded and relied upon by them, failing which their claim must fail and be dismissed. In Ezukwu V. Ukachukwu (2000) 1 NWLR (Pt. 642)657 @ p. 679, it was reiterated inter alia thus:
“A Claimant of title to land, of course, need not rely on more than one of the five methods. No. Where, however, he relies on a pleaded method or way as a root of his title, then, if the pleaded root fails, the alleged acts of ownership or possession derivative of the root necessarily ought to fail. Why? Because the titleor the root title needs must be, firstly established before the exercise of the rights of ownership may exercisable….”

Now, whilst the Appellants had vehemently contended that the Plot in dispute having been validly allocated to the 1st Appellant by the 1st Respondent, and for which they had made some payments to the 1st Respondent, rightly belonged to them, it has been equally vehemently contended by the Respondents that the allocation of the Plot in dispute to the 1st Appellant was conditional upon the issuance of a formal letter of offer to spelt out the details of the terms and conditions of the contract and that the said condition having not been fulfilled rendered the said allocation of the Plot in dispute by the 1st Respondent to the 1st Appellant inchoate and therefore, not amounting to any valid and enforceable contract between the 1st Respondent and the 1st Appellant.

I have earlier reproduced in great details, the case of the Appellants as led in evidence through the 2nd Appellant as PW1. I have also reproduced in great details, the case of the 1st Respondent as led in evidence through the DW1. I have further reproduced ingreat details the case of the 2nd and 3rd Respondents as led in evidence through the 3rd Respondent as DW2.

It was on the strength of the averments in the pleadings and the evidence, both oral and documentary that the Court below had on 14/12/2017 delivered its judgment, in which it dismissed in the claims of the Appellants against the Respondents holding inter alia that the allocation of Plot 365, Road 39, Gwarinpa II Estate, Abuja, to the 1st Appellant was inchoate and therefor, did not create any enforceable contract between the 1st Appellant and the 1st Respondent in respect of and over the said Plot 365, Road 39, Gwarinpa II Estate, Abuja. See pages 399 – 426 of the Record of Appeal.

I have also taken time to read through and properly appreciate the reasoning and the resultant findings in the judgment of the Court below in the light of the submissions of counsel to the parties in this appeal. The fulcrum of the case of the Appellant is the legal status of Exhibit P1, coupled with the payment of some fees to the 1st Respondent in respect of the Plot in dispute. In Exhibit P1, which a letter of allocation of Plot 365 Road 39, Gwarinpa Estate II,Abuja issued by the 1st Respondent to the 1st Appellant and dated 2/10/1999 and signed by one R.O. Adebayo Managing Director/Chief Executive of the 1st Respondent, stating as follows:
“Allocation of A Residential Plot of Land at Gwarinpa 11 Estate. Abuja –
Following your application for a land in Abuja, it is confirmed that approval has been given for you to be allocated plot No. 365, 39 Road, Gwarinpa II Estate, Abuja
2. Among the conditions of allocation are the Following: –
a. The land has an area of 1000 square meters approximately subject to survey;
b. The land is to be leased for a time of ninety-nine (99) years certain
c. premium payable is at the rate of N100. 00 per square meter and the ground rent reserved is N5. 00 per square meter per annum, subject to periodic reviews;
d. You will be required to pay a development charge, the details of which will be determined and communication to you in due course.
3. If you accept these terms and conditions, you are required to forward a bank draft) in favor of Federal Housing Authority, payable into Gwarinpa Escrow account to the tune of NI00,000.00 (One HundredThousand Naira) being premium payment for the plot within 60 days from the date of this letter.
4. Detailed terms and conditions of this allocation will be embodied in a formal LETTER of offer to be issued in due course by the Executive Director (Land and Estate Management Division), who should be contacted henceforth on this matter” See page 123 of the Record of Appeal.

By Exhibit P2, a letter dated 21/12/1999 and signed by the 2nd Appellant, R. O. Anyama, as Director of the by 1st Appellant, the 1st Appellant accepted the allocation of the Plot of land made to it by the 1st Respondent, stating as follows: of the letter of allocation of the 1st Respondent dated 2/10/1999, stating inter alia thus:
“Acceptance of Offer of Allocation of a Residential Plot of Land No. 365 At Gwarinpa II Estate, Abuja – We hereby accept your offer or allocation of a residential plot of land No. 365 at 39 Road, Gwarinpa II Estate Abuja to our company per your offer letter Ref. FHA/OCE/GWA/LEM/264 of 2. 2nd October, 1999. We thank you immensely for this kind gesture and assure you of our willingness to abide by your conditions of offer.” See page 125of the Record of Appeal.

By Exhibit P. 7, a Letter dated 21/11/2001 for part payment of N500, 000. 00 development levy by the Appellant and signed by the 2nd Appellant and addressed to the 1st Respondent stating as follows:
“We have read your Demand Notice for unsettled Development Levies and other charges in the Daily Champion of 30/8/2001, but are yet to receive your formal written request thereto. We hereby request for your approval for us to pay N500,000.00 on account for Development Levy on the above Plot No. 365. We assure you that the balance, which will be known as soon as we receive your demand letter, will be settled in due course. Consequent upon our above request, we attach our All-States Trust Bank Plc Idi – Oro Branch Banker’s Cheque. No 0210652 dated 21/11/2001 for N500, 000. 00.” See page 129 of the Record of Appeal.

Now, with the advent or should I say the introduction of written statement on oath of witnesses into our adjudicatory processes, most often than not the witness statement on oath, which is adopted as the evidence in chief, has become a replica of the pleading of the party calling the witness.

Thus, it would appear that the real test of the veracity and credibility of witness now is the evidence given under cross-examination. Happily, in law evidence elicited under cross-examination on the pleadings of either party is proper evidence before the Court to be acted upon if in support of the case of the cross-examining party. See Daggash V. Bulama (2004) 14 NWLR (Pt. 892) 144 at P. 241. See also Ofem & Anor V. Ewa & Ors (2012) LPELR – 7852 (CA), Bamgboye & Ors V. Olarewaju(1991) 4 NWLR (Pt. 184) 132 at p. 155, Gaji&Ors V. Paye (2003) 8 NWLR (Pt. 823) 583.

In his cross-examination, the 2nd Appellant as PW1 had admitted that in Exhibit P1 there was no requirement of provision of access road though that was his understanding and that he was not issued with any formal letter of offer as prescribed in Clause 4 of Exhibit P1 and so he did not have any detailed terms and conditions from the 1st Respondent. He also admitted that he did not contact the Executive Director of Land and Estate Management Division of the 1st Respondent as instructed in Exhibit P1 for the detailed terms and condition of the allocation made to the 1stAppellant since to him he had no need to contact the Executive Director as directed in Exhibit P1. He also admitted that the 1st Respondent did not make any formal demand before the 1st Appellant paid the sum of N500, 000. 00 to the 1st Respondent as Development fees which payment was made outside the stipulated period. He further admitted that the Appellants, even 10 years after the publication giving notice of the 1st Respondent’s intention to revoke allocation of allottees who had not developed the Plot allocated to them, did not develop the said Plot in dispute since to him the allocation letter did not specify any period for development. See pages 349 – 350, 372 of the Record of Appeal.

On her part, under cross-examination, the DW1 admitted Exhibit D13 was a demand notice for unpaid levies from allottees of the 1st Respondent and that the payment of N500, 000. 00 by the 1st Appellant was made in pursuant to the said demand. She also admitted that an allottee is one who has a relationship with the 1st Respondent but maintained that the 1st Appellant had no valid contract with the 1st Respondent because without the formal letter of offer the contract between the 1st Respondent and the 1st Appellant was incomplete though the 1st Respondent accepted the payment of N500, 000. 00 from the 1st Appellant as part of the pre-condition for the issuance of the formal letter of offer at the request of the allottee. However, she added that the sum of N500, 000. 00 had not been refunded to the 1st Appellant because refunds are made on request. She maintained that Exhibit P1 was a mere allocation letter and does not constitute a valid contract between the 1st Respondent and the 1st Appellant. She admitted that in Exhibit P1, there was no time limit prescribed for development of the Plot of land by the 1st Appellant. See pages 380 – 383 of the Record of Appeal.

At this stage of considering issue one, I do not consider the cross-examination evidence of the DW2 for the 2nd and 3rd Respondent of any relevance since at the time of the facts and circumstances leading to the allocation of the Plot in dispute to the 1st Appellant by the 1st Respondent, the 2nd and 3rd Respondents were clearly not in the picture.

I have looked at Exhibit P1, noting particularly Clause 4 therein, and I cannot but find thatit constitutes a condition whose fulfillment was essential to the completeness and validity of the transaction between the 1st Respondent and the 1st Appellant in respect of and over Plot 365 Road 39 Gwarinpa II Estate, Abuja. I am of the view, and I so hold that even the Appellants knew of the condition in Clause 4 as necessary for the completion of the contract between the 1st Respondent and the 1st Appellant but as the 2nd Appellant puts it in his evidence since the 1st Respondent did not issue the formal letter of offer he considered Exhibit P1 as the final and complete contract document between the 1st Respondent and the 1st Appellant, and therefore, he did not consider it of any need to comply with clause 4 of Exhibit P1 to contact the Executive Director of Land and Estate Management Division of the 1st Respondent. Here is a witness who had admitted that Exhibit P1 did not contain the detailed terms and conditions of the allocation and yet he did not see the need to contact the 1st Respondent for the formal letter of offer embodying the details terms and offer of the contract between the 1st Respondent and the 1st Appellant.

On the facts andcircumstances of this case as proved in evidence, I am minded to and do hereby agree completely with the apt and unassailable submission of learned counsel for the 1st Respondent that the Court below was perfectly right and on firmer ground when it held Exhibit P1 did not constitute a complete transaction between the 1st Appellant and the 1st Respondent but had remained inchoate at all material times with the consequence that the contractual relationship sought to be created by Exhibit P1 between the parties did not crystalize into a valid and enforceable contract in law.

There is clear unchallenged evidence from the DW1 and even admitted by the PW1 there was a non – fulfilment of the condition precedent as stipulated in Clause 4 of Exhibit P1. In law, this failure to fulfil condition precedent to the validity of the contract between the 1st Respondent and the 1st Appellant is fatal and, in my finding, thereby rendered the relationship between the 1st Appellant and the 1st Respondent inchoate. This is so because in law once an agreement or relationship sought to be created is conditional, the non – fulfillment of the pre-conditions renders such agreement inchoate and unenforceable. In appropriate circumstances, it may even render such an agreement ‘null and void.’ The absence of any detailed terms and conditions as prescribed by Clause 4 of Exhibit P1, notwithstanding whose fault it was as between the 1st Appellant and the 1st Respondent, rendered the contract between the 1st Respondent and the 1st Appellant inchoate and therefore, unenforceable having not vested any right on the 1st Appellant to the Plot 365 Road 39, Gwarinpa II Estate Abuja. See Niger Care Development Company Ltd V. Adamawa State Water Board &Ors (2008) LPELR – 1997(SC) 25, where the Supreme Court per Ogbuagu JSC, had defined a condition precedent inter alia thus:
“A condition precedent is defined as one which delays the vesting of a right until the happening of an event.”
See also Orakul Resources Ltd V. NCC (2007) 16 NWLR (Pt. 1060) 270 at p. 307 where this Court per Peter Odili JCA, (as my Lord then was but now JSC) had stated inter alia thus:
“Condition is a provision which makes the existence of a right dependent on the happening of an event: the right is then conditional as opposed to an absolute right…A condition precedent is one which delays the vesting of a right until the happening of an event.”
It follows therefore, whilst in law parties are at liberty to incorporate into a written agreement conditions precedent but once that is done, those conditions precedent must first be met and or fulfilled before a binding contract can be said to be in existence or created between them. The decided authorities on this settled position of the law are legion! Suffice to mention a few of them. See Tsokwa Oil and Marketing Co. V. BON (2002) 11 NWLR (Pt 777) 163, where the Supreme Court had stated inter alia thus:
“It is trite law that once a condition precedent is incorporated into an agreement, that condition precedent must be fulfilled before the effect can flow. All conditions are (a) are conditions precedent i.e the sine qua non to getting the thing, or conditions subsequent, which keep and continue to the thing as to when conditions are precedent or subsequent.”
See also Nigerian Bank for Commerce and Industry V. Integrated Gas (Nig) Ltd (1999) 8 NWLR (Pt 613) 127, this Court per Aderemi JCA,(as he then was but later JSC) had stated inter alia thus:
“By Exhibits F and G, the parties have entered into what, in law is a conditional contract, the condition precedent must happen before either party becomes bound by the contract. A condition must be fulfilled before the effect can flow. A conditional contract would not become operational and binding until the stipulated condition precedents are fulfilled.”
Thus, in Suberu V. A.I.S & L Ltd (2007) ALL FWLR (Pt. 380) 1512 at pp. 1528 – 1529, this Court per Abdullahi JCA (as he then was but later PCA) has stated inter alia thus:
“A conditional contract would not become operational and binding until the conditions stipulated therein are fulfilled….”
See further, Bilante International Ltd V. NDIC (2011) 6 SCNJ 481 at p. 498, where the Supreme Court per Onnoghen JSC, (as he then was but later CJN) had stated inter alia thus:
“Once it has been established that no enforceable contract exists between the parties, or that what took place between the parties does not translate to a contract between them, the foundation of the reliefs claimed collapses with the absence of cause of action, which in this case is supposed to be breach of contract. In short, you cannot talk of the consequences of a breach of contract when no contract exists.”
And in Ozobia V. Anah (1999) 5 NWLR (Pt. 601) 13, this Court had per Iyizoba JCA, stated inter alia thus:
“The rule is that where the law places a condition precedent to the performance of a given act such an act cannot be said to have been duly performed without the fulfillment of the stated condition. Failure of a party to comply with the condition in the circumstance is fatal and incurable.”

So, on the pleadings and evidence led, coupled with Exhibit P1, P2, P3, P4, P5, P6, P7, P8 and P9 was there any element of offer, acceptance and consideration between the 1st Respondent and the 1st Appellant as to constitute a binding contract in law between the parties? The term ‘Offer’ is generally defined to bring to or hold out or proffer, to make a proposal to, to exhibit something that may be taken or received or not. Acceptance on the other hand is the taking and receiving of anything in good part and as it were a tacit agreement to a preceding act, which might have been defeated or avoided if such acceptance had not been made. Thus, compliance by an offeree with the terms and conditions of an offer constitutes acceptance in law. See Union Homes Savings and Loans Plc V. Blue Wing Travel and Tours (2017) LPELR – 51550 (CA), per Georgewill JCA. See also Bilante International Ltd V. NDIC (2011) LPELR – 781(SC), DHL International Ltd. V. Chidi (1994) 2 NWLR (Pt. 329) 720, Union Bank Ltd. V. Ozigi (1994) 3 NWLR (Pt. 333) 385.

Interestingly, even where there is evidence of offer and acceptance as thought by the Appellants, though erroneously since Exhibit P1 does not amount to an offer but at best an invitation to treat, and I shall return to this aspect of this case in fuller detail soon, once a condition precedent is not fulfilled the contract would remain inchoate and in law will not crystalize into a valid contract, enforceable in a Court of law. It would confer neither any rights nor liabilities on the parties. In Tsokwa Oil & Marketing Co. V. Bank of the North (2002) FWLR (Pt. 112) 1, the contract, like the contract in the instant appeal, was subject to the fulfillment of a condition.

The trial Court held that since there was offer and acceptance of Exhibit 75, there was a contract and awarded damages against the defendant. The Court of Appeal set aside the judgment on the grounds that since two conditions still remained unfulfilled, there was no contract. On further appeal, the Supreme Court held inter alia thus:
“What the whole negotiation on this contract connotes is that it was made conditional…From the evidence on record, it is clear that there is a condition precedent in the party’s agreement. It is trite law that once a condition precedent is incorporated into an agreement, that condition precedent must be fulfilled before the effect can follow…”

In my view therefore, and I so firmly hold at best, Exhibit P1 going by the terms of Clause 4 therein merely conveyed in principle to the 1st Appellant an approval for allocation of the parcel of land in issue. Little wonder then, Exhibit P1 stipulated in no uncertain terms that ‘a formal letter of offer’ embodying the detailed terms and conditions of the allocation, was to be issued to the 1st Appellant subsequently.

I have looked at Exhibit P1once again, and it does appear to me that the Appellants decided to pick and choose which of its conditions to fulfil and accept and which condition to fail to fulfil and reject. The Appellants love Clause 3 of Exhibit P1 so much and readily proceeded to satisfy it but they seem to hate Clause 4 of Exhibit P1 with a passion and had therefore, not taken any steps or even an attempt to fulfil same since they saw no need to even fulfil Clause 4 of Exhibit P1 and yet they went before the Court below to enforce Exhibit P1, perhaps with Clause 4 therein expunged by them. In law, they are without any such liberty to accept some parts or conditions in Exhibit P1 while rejecting other parts or conditions in the same Exhibit P1. This is because in law, documents, such as Exhibit P1, must be construed as a whole and not in piecemeal as the Appellants would have loved the Court below to do. See Chiaghana & Anor V. Govt of Anambra State &Ors (2016) LPELR – 42096 (CA). See also Odugbemi & Anor V. Shanusi&Ors (2018) LPELR – 44868 (CA).
It follows therefore, that in construing Exhibit P1, the Court should not and cannot limit or restrict itself to only a specific clause in it but should give the entire contents of Exhibit P1 a complete and holistic construction so as to discover the intention of the makers of the document, the 1st Respondent and the 1st Appellant. In other words, in the construction of a document the entire content of the document must be construed as a single whole. Thus, Exhibit P1 must be read and construed as a whole and therefore, the Appellants cannot be seen or allowed to take benefit of some conditions in Exhibit P 1, such as Clause 3, which they consider favourable but seek to negative the other condition, Clause 4, also stipulated therein.

Having held firmly as above that Exhibit P1 does not and did not constitute any valid enforceable contract in respect of and over Plot 365 Road 39, Gwarinpa II Estate, Abuja, let me turn my attention to the contention that by reason of the notice of revocation, without at this stage considering whether the notice of revocation was valid or invalid, which is the subject matter of issue two for determination in this appeal, an implied lease was called into existence between the 1st Respondent and the 1st Appellant by virtue of Section 7 of the State Lands Act. Generally, in law the essential requirement for a valid lease is that it must be clear that there must be an intention to create a term of years with a beginning and a certain ending and must therefore, show the following, namely:
1. The parties,
2. The extent or nature of the property,
3. The rent payable,
4. The period or tenure of the lease, and
5. The date of commencement, all of which are present before an agreement can be said to amount to a lease in law, which is clearly not the case with Exhibit P1. See Coker V. Saba &Ors (2018) LPELR – 46573 (CA) Per Georgewill JCA. See also Bosah V Oji (2002)6 NWLR (Pt. 762) at p. 140.

Now, in Clause 2B of Exhibit P1 relied upon by the Appellants, the words used were futuristic. It did not create any lease between the 1st Appellant and the 1st Respondent, when it stated inter alia thus:
“The land is to be leased for a time of ninety-nine (99) years certain.”

I have taken time to consider the submissions of the parties on the applicability or non – applicability of Section 7 of the State Lands Act by reason of the revocation notice issuedby the 1st Respondent and served on the 1st Appellant in respect of and over Plot 365 Road 39, Gwarinpa II Estate, Abuja, to the facts and circumstances as proved by the evidence led by the parties in the instant case. I hold the view that in law the existence of a valid lease, of which Exhibit P1 is not, is a condition precedent to its being governed either by its express terms or implied terms under Section 7 of the State Lands Act. I cannot therefore but agree completely with the apt and unassailable submission of learned counsel for the 1st Respondent that the Court below was right when it held that a valid lease must first be in existence before same can be said to be governed by the implied conditions under Section 7 of the State Lands Act by reason of a revocation notice where the party who issued a revocation notice denying the existence of a lease.
In other words, if there was no lease then what was the basis for the revocation notice and therefore, the issuance of revocation notice presupposes the implied existence of a lease. However, in the peculiar circumstances of the case, in which there is no valid or even invalid lease between the 1stRespondent and the 1st Appellant, there cannot be any invocation of the provision of Section 7 of the State Lands Act to imply the existence of a valid lease and terms thereof between the 1st Respondent and the 1st Appellant. The law is ‘ex nihilo nihil fit’ – one cannot possibly build up something on nothing and expect it to stand. See UAC V. Macfoy (1961) 3 All ER 1169. See also Management Enterprises Ltd & Anor V. Otusanya (1987) LPELR – 1834 (SC).

So, in the light of all the above findings of facts and the applicable principles of law, did the Appellants as required of them by law as Claimants before the Court below seeking declaration of title to Plot 365 Road 39 Gwarinpa II Estate Abuja, prove by the method relied upon by them, by production of document of title, any valid title to Plot 365 Road 39 Gwarinpa II Estate Abuja? I think Not! See Mr. Frank Anyi & Ors V. Chief Harry Ayoade Akande & Ors (2017) LPELR -41973(CA) per Georgewill JCA.

I find that Exhibit P1 is not a document of title and therefore, does not come within the purview of the five ways or methods of proof of title to land. No wonder then Exhibit P1 was even admitted in evidence without registration under the Land Instruments Registration Law, being not a registrable instrument. It is not even prima facie evidence of title to land, there was therefore, in law even no necessity for the Respondents to prove anything in their defence. Truly, I just realised that the Appellants having failed to make out even prima facie case of any colour of title to Plot 365 Road 39, Gwarinpa II Estate, Abuja against the Respondents, in law none of the Respondents was indeed not under any duty to prove anything in their defence to the bogus and unproved claims of the Appellants. See Jolayemi V. Alaoye(2004) 12 NWLR (Pt. 887) 322, where, Uwaifo JSC, had so succinctly put this position of law in its proper perspective thus:
“I realise that a Defendant need not prove anything if the Plaintiff has not succeeded in establishing his case at least prima facie, in order that the necessity of the Defendant to confront the case so made out may arise.”

In the light of all the findings as above, I hold firmly that Exhibit P1 is not a legally enforceable agreement. It was and had remained inchoate. Indeed, it is only but a mere inchoate document which cannot support and or ground a claim to declaration of title to land since in law Exhibit P1 does not constitute neither an offer of sale nor a document of title to the Plot in dispute. Thus, without the formal offer of the plot in dispute to the Appellants, the letter of allocation alone as in Exhibit P1 cannot and did not constitute a contract of either sale or assignment or lease or transfer of title to the Plot 365 Road 39, Gwarinpa II Estate, Abuja on the Appellants, particularly the 1st Appellant.

I subscribe fully to the well settled position of the law that an appellate Court which had not seen the witnesses testify and observed their demeanour in the witness stand, should respect the views of a trial Court and should not readily substitute its own views except where it is shown that the conclusion reached by the Court below was perverse. An appellate Court or any Court exercising appellate jurisdiction must always bear in mind that the primary function of assessing the quality of evidence and ascribing probative value thereto is that of the trial Court, which heard and saw the witnesses testify. Thus, it is only when the findings of the trial Court have been demonstrated to be perverse as not flowing from the established and proved evidence or hinged on extraneous matters or for whatever other reasons not correct that an appellate Court would intervene. See Sa’eed V. Yakowa (2013) All FWLR (Pt. 692) 1650 at P.1681. See also Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 at P. 19,Sogbamu V. Odunaiya (2013) All FWLR (Pt. 700) 1247 at P. 1307.
In law, it is trite that evaluation and ascription of probative value to the evidence led is ordinarily the turf of the trial Court, and once a trial Court discharges that duty on the strength of the evidence placed before it, unless it arrives at perverse conclusions or findings not supported by the established evidence before it, an appellate Court will not interfere once the conclusions reached is correct, even if the reason which is the pathway to the conclusion or finding turns out to be wrong. See Alhaji Ndayako & Ors V. Alhaji Dantoro & Ors (2004) 13 NWLR (Pt. 889) 187 at p. 198, where Edozie, JSC., had pronounced with finality on this issue, thus:
“An appellate Court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons given are right or wrong. Where the judgment is right but the reasons given are wrong, the appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the appellate Court will interfere….”
See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134 and Ukejianya V. Uchendu 18 WACA 46.

In the light of all the above findings, issue one for determination is hereby resolved against the Appellants in favour of all the Respondents.

ISSUES TWO AND THREE
Whether the title of the 1st Appellant was validly revoked by the 1st Respondent in accordance with the law AND whether the reallocation of the one plot of land in dispute, the 1st Respondent to the 3rd Respondent is not null and void sequel to issues one and two enjoined to be resolved in favour of the Appellants?

My Lord, the President of this Court and my Lord, my noble brother, I have taken time to review the pleadings and considered the evidence led by the parties on these issues. I have also considered the submissions of counsel on issues two and three for determination. I have already found as fact that Exhibit P1 was inchoate and therefore, did not constitute a complete binding and enforceable contract between the Appellants and the 1st Respondent, which findings have completely taken the sail out of issues two and three for determination. However, being only but the penultimate Court in the land enjoined by the Apex Court to express its opinion and determine all the issues submitted before it by the parties, I shall proceed to consider issues two and three for determination, howbeit briefly.

There was unchallenged evidence that the Appellants were first given a general notice of the 1st Respondent’s intention to revoke all plots that had remained undeveloped, of which the 1st Appellant’s allocated plot had remained undeveloped for all of 13 years. There was also unchallenged evidence that Exhibit P10, the letter of revocation was duly served on the Appellants, and in consequences thereof the Appellants protested against the revocation to the 1st Respondent. In Exhibit P10, the reason for the revocation was explicitly stated to be ‘failure to develop the Plot within 13 years from the date of the allocation.’ Interestingly, it was the Appellants that tendered Exhibit P10 and in law, they must either swim or sink with it. The PW1 admitted that the Plot at the time of its revocation had remained undeveloped.

On notice and opportunity to the Appellants to be heard before the Plot was revoked as required by law, there is unchallenged evidence in Exhibit D13, that as far back as 30/8/2001, the 1st Respondent by publication made in the Champion Newspaper gave sufficient notice of its intention to revoke allocations of Plots of land, which included the Plot allocated to the 1st Appellant, yet the Appellant did nothing as they neither approached the 1st Respondent nor developed the Plot allocated to the 1st Appellant in 1999 vide Exhibit P1. Curiously, the position of things remained the same until 4/8/2011 when the allocation to the 1st Appellant was revoked vide Exhibit P10.

On the above established and unchallenged facts, I find and hold firmly that the 1st Appellant was availed with every with the opportunity to be heard between 30/8/2001 and 4/8/2011, about 10 years, before the revocation of the allocation by the 1stRespondent on 4/8/2011 vide Exhibit P10. In law, a person who despite being given an opportunity to be heard but elects not to take advantage of such opportunity cannot be heard to complain of denial of fair hearing. At common parlance, it is said that one can only take the horse to the stream but cannot force it to drink, and the horse which refuses to drink from the waters of the stream cannot turn round to complain that it was not given water to drink! So, it is with the Appellants. See INEC V. Musa (2003) 3 NWLR (Pt 806) 72. See also Sabiru Adebayo V. AG. Ogun State (2008) 33 NSCQR (Vol. 1) at pp. 25 – 26 and Newswatch Communications Ltd V. Atta(2006) All FWLR (Pt. 318).

On the issue of specific performance raised peripherally and in passing, as it appears to me, there was even no such relief claimed by the Appellants against the Respondents both in their Writ of Summons and their 2nd Amended Statement of Claim. There was also neither any pleading nor request by the Appellants for the formal letter of offer from the 1st Respondent. Indeed, the 2nd Appellant as PW1 stated clearly that the Appellants saw no need to contact the Director of Land and Estate Management Division of the 1st Respondent for the formal letter of offer. There is also no evidence before the Court below of the existence of any lease or assignment or sale of Plot 365 Road 39, Gwarinpa II Estate Abuja by the 1st Respondent to the 1st and or 2nd Appellants. There is clear evidence that the Appellants are not and had never been in possession of the Plot in dispute as they only relied on Exhibits P1, P2 – P9, the letter of allocation and payment of N100,000.00 as premium fee and N500,000 as development fees and charges as their documents of title, none of which or a combination of which amounted to sufficient proof of valid title to the Plot of land in dispute. In law, without possession upon payment of Purchase Price there is no equitable interest even under common law and not just under customary law as erroneously contended by counsel for Appellants for which the Appellants could even seek for an order of specific performance against the 1st Respondent. See Odusoga V. Ricketts [1997] 7 NWLR (Pt. 551) 1 at P. 16 where the Supreme Court per Ogundare JSC, had stated inter alia thus:
“Viewed even from the standpoint of the common law, payment of purchase price coupled with possession gives the purchaser an equitable title and he is entitled to seek an order of specific performance to compel the vendor to convey legal title to him.”

Indeed, Courts of law, being neither charitable organization nor ‘Father Christmas’, do not grant reliefs not claimed or asked for by a party except it is merely consequential and or incidental to the reliefs claimed and facts proved by evidence. There was therefore, in my finding, no basis in law for the Court below or this Court to consider and make any order of specific performance against the 1st Respondent in favour of the Appellants, particularly the 1st Appellant. See Amaechi V. INEC (2008) LPELR – 446 (SC). See also See Zenith Bank Plc. V. Ekereuwen (2012) 4 NWLR (Pt. 1290) 207 at P. 230, Akinterinwa V. Oladunjoye (2000) 6 NWLR (PT. 659)92, Onwuka V. Omogui (1992) 3 NWLR (Pt. 230) 393 and Makinde V. Akinwale (2000) 2 NWLR (Pt. 645) 435.

It is true that as a general rule, a plea of revocation raises a presumption that the revoking authority acknowledges the existence of a valid title prior to the act of revocation. The reason for this position of the law is simply that if no grant were in existence, there would be nothing to revoke in the first place – Ex nihilo nihil fit – out of nothing comes nothing. See Osho V. Foreign Finance Corporation (1991) 4 NWLR (Pt. 184) 157 at 189.
However, where, as in the instant appeal, it has been overwhelmingly and sufficiently demonstrated by the unchallenged evidence and it has been so held firmly that the Appellants neither acquired nor proved any valid title to the Plot in dispute because of the non-issuance of a formal offer embodying the detailed terms and conditions of the grant by reason of their failure to fulfil the condition precedent in Exhibit P1, I hold that the presumption predicated on the provisions of Section 7 of the States Land Act was effectively rebutted, dislodged and does not avail the Appellants. I believe strongly, and I so hold, that on the face of non-existent valid title to the Plot in dispute the mere act of revocation, which to me is a mere surplusage as by way of ex abudanti cautela – for the avoidance of doubt – can neither create a non – existent title nor confer validity on an invalid title of the Appellants. I hold firmly therefore, the revocation of Exhibit P1 vide Exhibit P10 by the 1st Respondent was valid and it indeed effectively revoked, whatever interest, if any, of the Appellants on Plot 365, 39 Road, Gwarinpa II Estate, Abuja as was impeccably and unimpeachably found by the Court below.
So, having found that the Appellants, particularly the 1st Appellant neither had any valid title nor proved any form of title, whether legal or equitable, to Plot 365, 39 Road, Gwarinpa II Estate, Abuja, was the re-allocation of Plot 365, 39 Road, Gwarinpa II Estate, Abuja to the 3rd Respondent by the 1st Respondent valid in law? I have already found, just as the Court below had rightly found and held, that the revocation of the allocation of Plot 365, 39 Road, Gwarinpa II Estate, Abuja to the 1st Appellant by the 1st Respondent vide Exhibit P10 was valid, it would follow therefore, that by virtue of Exhibit P10, dated 4/8/2011 effectively putting an end to the prior, at best equitable interest of the 1st Appellant to Plot 365, 39 Road, Gwarinpa II Estate, Abuja, the said Plot 365, 39 Road, Gwarinpa II Estate, Abuja had become unencumbered and thus available once again for the 1st Respondent to re-allocate to the 3rd Respondent, as it did vide Exhibit D14, without any hindrance from the Appellants. I hold therefore, Exhibit D14, issued on 17/8/2011 was valid and effectively re-allocated the Plot 365, 39 Road, Gwarinpa II Estate, Abuja to the 3rd Respondent by the 1st Respondent.

In the light of all I have stated and found as above, issues two and three for determination are hereby resolved against the Appellants in favor of the Respondents.

On the whole therefore, having resolved issues one, two and three for determination against the Appellants in favour of the Respondents, I hold that the appeal lacks merit and is liable to be dismissed. Accordingly, the appeal is hereby dismissed in its entirety.

In the result, the judgment of the High Court of the Federal Capital Territory Abuja, Coram: Peter O. AffenJ., (as he then was) in Suit No. FCT/HC/CV/3313/2013: Cornet & Cubit Ltd & Anor V. Federal Housing Authority &Ors delivered on 14/12/2017, in which all the claims of the Appellants as Claimants against the Respondents as Defendants were dismissed for lacking in merit,is hereby affirmed.
There shall be no order as to cost.

MONICA BOLNA’AN DONGBAN–MENSEM, P.C.A.: I agree with the lead judgment prepared by my learned brother, SIR BIOBELE ABRAHAM GEORGEWILL, JCA, dismissing the appeal.

By way of emphasis, I wish to adumbrate on the issue of condition precedent as follows:
A condition precedent is something that must be done or an action which must be taken for a party to benefit or claim any right therein. In this appeal, Clause 4 of Exhibit PI was a condition precedent and its non-fulfilment was fatal to the validity of the agreement between the parties. This Court in DALLAH V. AMAGBO (2015) LPELR-40591 CA defined Condition thus:
“The term “condition” has been defined as: “a provision which makes the existence of a right dependent on the happening of an event; the right is then conditional as opposed to an absolute right”. A “condition precedent” is, one which delays the vesting of a right until the happening of an event. See the cases of (1) Atolagbe v. Awuni (1997) 9 NWLR (Pt.522)p. 536; (2) Shugaba v. U.B.N. Plc (1999) 11 NWLR (Ft 627) P. 559 and(J) D.E.N.R Ltd v. Trans Int’l Bank Ltd (2008) 18 NWLR (Ft 1119) p. 388.”
Per OMOLEYE, JCA.
The Appellants concede to knowing of the condition contained in Clause 4 of Exhibit PI. Despite knowing about this condition, the Appellants did nothing to comply with it.
Once there is a condition that needs to be met before an agreement will come into force, the law is that such a condition becomes a condition precedent and the failure to fulfil the condition precedent will prevent parties from benefitting from the contract. See NIGERCARE DEVELOPMENT CO. LTD v. ADAMAWASTATE WATER BOARD & ORS (2008) LPELR- 1997(SC) and BURTON RESOURCES LTD & ANOR V. FIRST DEEPWATER DISCOVERY LTD (2021) LPELR- 54429 (CA).
The Apex Court in TSOKWA OIL MARKETING CO. (NIG) LTD V BANK OF THE NORTH LTD (2002) LPELR – 3268 (SC) stated thus:
“It is trite law that once a condition precedent is incorporated into an agreement, that condition precedent must be fulfilled before the effect can flow. AH conditions are (a) conditions precedent i.e. the sine qua non to getting the thing; or conditions subsequent, which keep and continue the thing (ibid). As to when conditions are precedent or subsequent, see 30 Law Journal 686; Porter v. Shephard 6 T.B. 665, Cooper v. London, Brighton & Southern Railway 4 Ex. D88; Barnard v. Faber (1893) 1 Q.B.340, cited WARRANTY; Horrigan v. Horrigan (1904) 1 Ir. R.22, 271 (Stroud’s Judicial Dictionary Vol. 1A – C page 538).” Per ONU, J.S.C.
Similarly, this Court in the case of NIGERIAN BANK FOR COMMERCE & INDUSTRY V. INTEGRATED GAS (NIG) LTD (1999) 8 NWLR (PT. 6131) 127 held that:
“The 1st Respondent, by a letter tendered as Exhibit G signed by the 2nd Respondent, its Managing Director acknowledged the receipt of Exhibit F and conveyed its acceptance of the terms and conditions in Exhibit “F”. The relevant portion of Exhibit G reads:-
“We refer to and thank you for your letter of intent dated 25th March, 1986 offering us a loan of N500,000.00 under the World Bank Line of Credit. We have carefully studied the terms and conditions of the loan and to indicate our acceptance, we return herewith two copies of the letter of intent duly signed by us.”
By Exhibits F and G, the parties have entered into what, in law, is a conditional contract: In the case of a conditional contract the condition precedent must be fulfilled before either party becomes bound by the contract A condition precedent must be fulfilled before the effect can follow.” Per ADEREMI, JCA (AHTW) (Emphasis Supplied).

With this addition, I adopt as mine the reasoning and conclusions made in the lead judgment. I too hereby dismiss this appeal as lacking in merit.

BATURE ISAH GAFAI, J.C.A.: I was privileged to read in draft the judgment just delivered by my learned brother, Sir B.A. GEORGEWILL, JCA.

I am in full agreement with the sound, all-encompassing reasonings expressed by my Lord in the lead judgment and the conclusions reached therein.

I adopt those reasonings as mine; by which I too find this appeal unmeritorious. In consequence, this appeal is dismissed by me too and the judgment of the lower Court affirmed.

Appearances:

Emmanuel I. Oboh, Esq. For Appellant(s)

EdidiongUsungurua, Esq. with him, Duncan Oluohu Esq. – for 1st Respondent
Val Igboanusi, Esq. – for 2nd and 3rd Respondents For Respondent(s)