EYIBOH v. MUJADDADI & ORS (2022)

EYIBOH v. MUJADDADI & ORS

(2022)LCN/16345(CA)

In The Supreme Court

On Friday, December 10, 2021

SC.98/2013

Before Our Lordships:

Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria

Kudirat Motonmori Olatokunbo Kekere-Ekun Justice of the Supreme Court of Nigeria

Mohammed Lawal Garba Justice of the Supreme Court of Nigeria

Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria

Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria

Between

HON. ESEME SUNDAY EYIBOH APPELANT(S)

And

1. DAHIRU SHEIKH MUJADDADI 2. AISHA SHEIKH MUJADDADI 3. TAHIR IDRIS HADEJIA (SUED AS THE ADMINISTRATORS OF THE ESTATE OF SHEIKH MUJADDADI) 4. ALHAJI HASSAN MUHAMMAD GUSAU RESPONDENT(S)

RATIO:

ESSENTIAL REQUIREMENTS OF A VALID CONTRACT

…….the essential requirements of a valid contract, which must co-exist, are:
(a) Offer
(b) Acceptance
(c) Intention to create legal relations
(d) Consideration; and
(e) Capacity to contract
See Bilante International Ltd. Vs N.D.I.C. (2011) 15 NWLR (Pt.1270) 407, Alfotrin Ltd. vs A.G. Federation & Anor (1996) 9 NWLR (Pt.475) 634, BPS Construction & Eng. Co. Ltd. Vs FCDA (2017) 10 NWLR (Pt. 1572) 1. In Alfotrin vs A.G. Federation (supra), it was held that for there to be an enforceable contract, “there must be a concluded bargain which has settled all essential conditions that are necessary to be settled and leaves no vital term or condition unsettled.” KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

POSITION OF LAW ON A DECLARATIVE RELIEF

Having sought a declaratory relief, the onus was on the appellant to succeed on the strength of his case and not on the weakness of the defence, if any. The law is quite settled that a declaration will not be granted in default of defence, or even on admission. See Kwajaffa & Ors vs B.O.N Ltd (2004) 13 NWLR (Pt.889) 149, Alao Vs Akano (2005) 11 NWLR (Pt.935) 160, Adama Vs Kogi State House of Assembly & Ors (2019) LPELR-47424 (SC) at 14-15 A – B. KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

WHERE THERE ARE TWO OR MORE PERSONAL REPRESENTATIVES IN RESPECTS OF CONVEYANCE OF A REAL ESTATE

It is true that in the said case, it was Section 4(2) of the Administration of Estates Law, Cap.2 Laws of Lagos State, 1973 that was construed. The Section reads as follows:
“4(2) Whereas respects real estate there are two or more personal representatives, a conveyance of real estate devolving under this part of this law shall not, save as otherwise provided as respects trust estate, be made without concurrence therein, of all such representatives or an order of the Court…”
This provision accords with the general principle of law as stated in Williams and Mortimer, Executors Administrators and Probate, 1970 Edition at page 463, cited with approval by this Court in Ojomo’s case at 118 C – E (supra), to wit:
“Where more than one executor or administrator is appointed, the joint office is treated as that of an individual. Each executor represents the estate for all purposes, subject only to the statutory exceptions. They have joint and entire interest in the estate (real or personal) of the testator or intestate which is incapable of being divided…” KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

MEANING OF “CONCURRENCE”

On the meaning of “concurrence”, His Lordship Edozie, JSC held at page 108 D-G (supra): “Longman’s Dictionary of Contemporary English defines the word “concurrence” as agreement. KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

MEANING OF “CONCURRENCE”

Black’s Law Dictionary, 6th edition at page 291, talks of concurrence “as a meeting or coming together; agreement or union in action, meeting of minds, union in design; consent.” KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

MEANING OF “CONCURRENCE”

I am of the view that the expression “concurrence” therein appearing in Section 4(2) of the Administration of Estates Law… (supra) means the agreement or consent of all the personal representatives in the conveyance of the real estate of the deceased. Evidence of such concurrence can be manifested by the execution of the conveyance by all the personal representatives but it is not limited to that. Where there are several personal representatives and they are all in agreement that the deceased’s estate vested in them should be disposed or alienated, one or some of them can validly execute a conveyance in that regard, but if there was no concurrence of all of them, such a conveyance executed by some of them can only be valid with order of Court.” KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

ON WHOM DOES THE BURDEN OF FIRST PROVING THE EXISTENCE OR NON-EXISTENCE OF A FACT LIES?

By Sections 133(1) and (2) and 136(1) of the Evidence Act, 2011, provide:
“133(1) In civil cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
(2) If the party referred to in Subsection (1) of this Section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no move evidence were adduced and so on consecutively until all the issues in the pleadings have been dealt with.
(3) …”
“136(1) The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person, but the burden may in the course of a case be shifted from one side to the other.” KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

POSITION OF LAW WHEN A WITNESS GIVES EVIDENCE THAT SUPPORTS THE OPPONENT’S CASE

It was held in Onisaodu Vs Elewuju (2006) 13 NWLR (Pt.998) 517 at 529-530 G – A, 532 B – C, that where a witness gives evidence that supports the opponent’s case, the evidence must be treated as an admission upon which the opponent is entitled to rely in support of his own case. See also Ojukwu Vs Obasanjo (2004), EPR 626 at 674-675. KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

DEFINITION OF CONTRACT

A contract is formed once there is an offer by the offeror to the offeree which is accepted by the offeree backed by consideration. At that point in time, the parties to the contract are said to be ad idem or in agreement and such agreement or contract becomes binding on both parties and is enforceable by action. MARY UKAEGO PETER-ODILI, J.S.C.

PRINCIPLE OF LAW ON A VALID CONTRACT

It is settled in law that for there to be a valid contract, certain ingredients must exist and conjunctively present as the absence of any of the ingredients missing invalidates the contract. These include:
(a) Offer
(b) Unqualified acceptance
(c) Consideration
(d) Intention to create legal relation

(e) Capacity to contract.
See Omega Bank (Nig) Plc v. O.B.C. Ltd (2005) 8 NWLR (pt. 928) 547 at 583, Yaro v Arewa Construction Ltd (2007) 16 NWLR (pt. 1063) 333 at 377 – 378 & 389, Amana Suits Hotel Ltd v PDP (2007) 6 NWLR (pt. 1031) 453 at 476. MARY UKAEGO PETER-ODILI, J.S.C.

WHETHER THE ADMINISTRATORS OF THE ESTATE MUST ACT JOINTLY AND NOT SEPARATELY

They must act in one accord as one or others cannot act without any other or others. I call in aid the case of YUSUF V. DADA & 3 ORS (1990) 3 N.S.C.C 125 AT 144 LINES 1-14 per Agbaje, J.S.C where he said:-
“As regard the position, vis-a-vis the administration of the estate, where more than one executor or administrator is appointed, as it is the case in hand, the same work says at page 466:-
“Joint representation: where more than one executor or administrator is appointed the joint office is treated as that of an individual person. Each executor represents the estate for all purposes subject only to the statutory exceptions.
They have a joint and entire interest in the estate (real and personal) of the testator or intestate, which is incapable of being divided, and in cases of death such interest vests in the survivor without any new grant by the Court. Consequently, if one or two executors or administrators purport to grant or release his interest in the testator’s intestate’s estate to the other, nothing passes, because each was possessed of the whole before. Similarly, the act of one in possessing himself of the effects is the act of the others, so as to entitle them to join interest in possession and a joint right of action if needed.” MARY UKAEGO PETER-ODILI, J.S.C.

WHETHER THE ADMINISTRATORS OF THE ESTATE MUST ACT JOINTLY AND NOT SEPARATELY

This Supreme Court, again in IBRAHIM V. OJOMO (2004) 4 NWLR (PT. 862) AT 115-116 per Kalgo, JSC (as he then was) held thus:-
“The main plank of this appeal centered around the provisions of Section 4(2) of the Administration of Estates Law, Cap.2, Laws of Lagos State 1973, and the validity of the agreement entered into between the appellant and two out of the three administrators of the estate of Chief M.E. Ojomo (deceased), for the development of the two landed properties of the deceased.

Section 4(2) of the said law provides:
Whereas respects real estate, there are two or more personal representatives, a conveyance of real estate developing under this part of this law shall not, save as otherwise provided as respects trust estates, be made without concurrence therein of all such representatives or an order of the Court” … MARY UKAEGO PETER-ODILI, J.S.C.

POSITION OF LAW ON CERTAINTY OF PARTY TO A TRANSACTION

It is settled law that a party cannot blow hot and cold at the same time and or in the same transaction. This principle was adopted by this Court in Ogualaji v A.G. Rivers State (1997) 6 NWLR (Pt. 508) 209 at 222. MARY UKAEGO PETER-ODILI, J.S.C.

WHETHER AN AGENT CAN CONCLUDE A CONTRACT OF SALE

POSITION OF LAW ON PRIVITY OF CONTRACT

The Supreme Court followed this principle in Ikpeazu v African Continental Bank Limited (1965) NMLR 374 at 379 and stated thus:-
“What advantage, if any, can the Bank gain from the deed Exhibit D? Can the bank sue on the guarantee? Not being a party to it we are of the view that the bank cannot acquire any rights under the deed. Generally, a contract cannot be enforced by a person who is not a party, even if the contract is made for his benefit and purports to give the right to sue upon it. Tweedle v. Atkinson. This view was supported by the House of Lords in Dunlop Pneumatic Tyre Co. Ltd Selfridge Co. Ltd. MARY UKAEGO PETER-ODILI, J.S.C.

POSITION OF LAW ON PRIVITY OF CONTRACT

The position is stronger with regard to contracts under seal, unless a person is named as a party to the deed, he cannot maintain upon it. The only exemption to this relates to indentures made about land which was introduced by Section 5 of the Real Property Act 1845 to enable a stronger to a deed to take advantage of a benefit to him in the deed”. See also Negbenebor v. Negbenebo (1971-72) Vol. 7 N.S.C.C 200-20. MARY UKAEGO PETER-ODILI, J.S.C.

POSITION OF LAW ON PRIVITY OF CONTRACT

This Court again per Muhammad, J.S.C. in UNITED BANK FOR AFRICA PLC V. JARGABA (2007) 11 NWLR (Pt.1045) 247 AT 266-267 held thus:-
“The doctrine of privity of contract is all about the sanctity of contract between the parties to it. It does not extend to others from outside. The doctrine will not apply to a non-party to the contract who may have, unwittingly, been dragged into the contract with a view to becoming a shield or scape goat against the non-performance by one of the parties. Barmani Holdings (Nig.) Ltd is a complete stronger in the contract between the appellants and the respondents. By the Court below, Courts of law do not make orders in vain or vacuum. Court orders affect directly, those persons who have had course to be subjected to the litigation process before the Court either directly or by litigation process before the Court either directly or by necessary extension of such processes. See Eperokun v. University of Lagos (2004) 16 WRN 90; (1986) 7 S.C. 106; (1986) 4 NWLR (pt. 34) 162, Ukejianya v. Uchende (1930) 13 WACA 45, Kokoro-Owo v. Lagos State Government (2004) 24 WRN 61; (2001) FWLR (Pt. 61) 1709; (2001) 11 NWLR (Pt. 723) 237 at page 246 D-E.” MARY UKAEGO PETER-ODILI, J.S.C.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. (Delivering the Leading Judgment): This appeal is against the judgment of the Court of Appeal, Abuja Division delivered on 1st February, 2013, which affirmed the judgment of the High Court of the Federal Capital Territory (FCT) Abuja. The appeal is predicated on the Amended Notice of Appeal filed on 13th November, 2020.

The facts that gave rise to this appeal are as follows: The 1st-3rd respondents are administrators of the Estate of Late Sheikh Mujaddadi. They offered a property belonging to the deceased located at Cadastral Zone A03 Abuja, covered by Certificate of Occupancy No. 12caw-14cld-55f7r-a082u-10, for sale sometime in 2007. The appellant indicated interest in purchasing the property. The 1st-3rd respondents contended that the selling price was put at N100 Million plus N5 Million as 5% agency fee. A Contract of Sale and Deed of Assignment (Exhibits A & B) were drawn up but signed by only the 1st and 2nd respondents. It was also contended by the 1st-3rd respondents that the agreement was not concluded and the 3rd respondent did not execute the documents because the appellant refused to pay the agency fee. The property was eventually sold to the 4th respondent, who paid the purchase price as well as the agency fee. Relevant documents were executed by all the administrators in his favour. The proceeds of the sale to the 4th Respondent were shared among all the beneficiaries of the estate.

The appellant was aggrieved and instituted an action before the High Court of the FCT, initially against the 1st-3rd respondents. He later sought and was granted leave to join the 4th respondent as 4th defendant in the suit. He claimed as follows:
1. A declaration that there is a valid and subsisting contract for the sale of the property consisting of a five-bed room duplex with two rooms, guest chalet and two room boys’ quarters with appurtenances covered by Certificate of Occupancy No. 12 caw-14cld-55f7r-a082u located at Cadastral Zone A03, Garki Abuja between the Plaintiff and the administrators of the Estate of Sheikh Majaddadi, the Defendant.
2. An order of specific performance to compel the Defendant to execute all and any document to perfect the title of the Plaintiff and do all that is reasonably necessary in the circumstances to give the plaintiff the beneficial ownership of the property described.
3. An order of perpetual injunction restraining the Defendants, by themselves, their servants, privies, agents or any person claiming through or under them from selling, or causing to be sold, the property aforementioned, to any other person or persons howsoever and in whatsoever manner.

The defendants filed a joint statement of defence wherein the 4th respondent raised a counter-claim. It was subsequently withdrawn and dismissed.

One of the issues that came up at the trial was the involvement of one Jamilu Mujaddadi, a biological son of the deceased (but not one of the administrators) in the transaction with the appellant. It was the appellant’s contention that Jamilu acted in the sale of the property to him as agent of the 1st-3rd respondents and that he signed the Deed of Assignment and Contract of Sale as witness to the transaction. He also pleaded that he made a payment of N100 million to the 1st-3rd respondents via three Bank PHB Manager’s cheques.

At the conclusion of the trial, the learned trial Judge made the following findings.
1. That the Contract of Sale and Deed of Assignment (Exhibit A & B) were void, having not been signed by all the administrators and there being no evidence of concurrence in the sale by all of them.
2. That Jamilu Sheikh Mujaddadi, a beneficiary of the Estate was an agent of the administrators only for the purpose of finding a buyer and had no authority to sell, hand over documents or deliver possession to the appellant.
3. That payment of 5% agency fee was a condition precedent to the sale of the property.
4. That there was no evidence to prove that the appellant made payment to the Administrators of the estate. The Court found that he made payment to Jamilu who had no authority to sell the property.
5. That the Deed of Assignment in favour of the 4th respondent, who had fulfilled all the conditions of the contract, was duly executed by all three Administrators and was therefore valid.

On these grounds, the appellant’s claim was dismissed. An appeal to the Court of Appeal was unsuccessful, as the judgment of the trial Court was affirmed.

The appellant is still dissatisfied and has further appealed to this Court vide his Amended Notice of Appeal filed on 13/11/2020 and deemed filed on 20/9/2021.

At the hearing of the appeal on 20/9/2021. PAUL EROKORO, SAN adopted and relied on the Appellant’s Amended Brief of Argument filed on 13/11/2020 and deemed filed on 20/9/2021, in urging the Court to allow the appeal. J.J. USMAN ESQ., adopted and relied on the Respondent’s brief filed on 24/1/2014 and deemed filed on 20/9/2021, in urging the Court to dismiss the appeal.

From the six grounds of appeal, the appellant distilled four issues for determination; to wit:
1. Whether the lower Court properly construed Exhibits A & B (Distilled from Grounds 1 and 2 of the Amended Notice of Appeal).
2. Whether the lower Court’s decision was not perverse (Distilled from Grounds 3 and 4 of the Amended Notice of Appeal).
3. Whether the lower Court was right to deem paragraphs 10 and 11 of the Respondents’ Amended Statement of Defence as admitted on the ground that the averments were not controverted by the Appellant (Distilled from Ground 5 the Amended Notice of Appeal).
4. Whether the Agency fee of 5% was a binding term of the contract of sale to the Appellant when there was no agent in the transaction and the contract never mentioned an Agency fee (Distilled from Ground 6 of the Amended Notice of Appeal).

The Respondents formulated only two issues, thus:
1. Whether the learned Justices of the Court below were right when their Lordships held that there is no enforceable contract between the Appellant and the 1st-3rd Respondents (Distilled from Grounds 2, 3 and 4 of the Notice of Appeal).
2. Whether the Court below was right when it affirmed the judgment of the trial Court on finding of facts (Distilled from ground 1 of the Ground of Appeal).

I observe that the respondents did not distill any issues from grounds 5 and 6 of the Amended Notice of Appeal. However, upon a careful perusal of the issues distilled by both parties, I find the respondents’ issues 1 and 2 to be more succinct. I also find that although their issue 2 is said to be distilled from ground 1 only, the issue can conveniently accommodate the appellant’s issues 3 and 4. I therefore adopt the respondents’ issues for the resolution of the appeal.

Issue 1
Whether the learned Justices of the Court below were right when their Lordships held that there was no enforceable contract between the appellant and the 1st-3rd respondents.

Learned counsel for the appellant submitted that even though Exhibit A, the contract of sale was signed by only the 1st and 2nd Respondents, the terms thereof were agreed to by all the Administrators. He referred to paragraph 21 of the witness statement on oath of DW1 (3rd respondent herein) at page 32 of the record. He submitted that from the said pleading, it is clear that there was concurrence between all three administrators that the property would be sold for N100 million. He submitted further that Exhibit B, the Deed of Assignment between the appellant and the administrators, was executed by the 1st and 2nd respondents and that in the document they acknowledged receipt of N100 million being payment for the disputed property. He argued that the 1st and 2nd respondents did not testify in Court and did not deny receiving the money. He maintained that the sale to the appellant was regulated by Exhibits A and B, neither of which required the payment of an agency fee.

Learned counsel submitted that notwithstanding the fact that the 3rd respondent did not execute the documents, the terms thereof are binding on all the administrators, based on the doctrine of sanctity of contract and they cannot be allowed to resile from an agreement they freely entered into. He referred to:A.G. Ferrero & Co. Ltd. vs H.C. Nig Ltd (2011) 13 NWLR (Pt. 1265) 592 at 666 C-A and UBN Vs Ozigi (1994) 3 NWLR (Pt.333) 385 a 400 D-H.

With reference to Section 128(1) of the Evidence Act and the case of U.B.N. Vs Ozigi (supra), he submitted that oral evidence of the payment of an agency fee as a condition precedent could not vary or alter the contents of Exhibits A and B. He also referred to:Eke Vs Odolofin (1961) 1 ALL NLR (Pt.2) 404; Macaulay Vs NAL Merchant Bank (1990) 4 NWLR (Pt.144) 283, among others. He submitted that if the agency fee was a condition precedent, it would only have become due if there was an agent in existence who had earned his fee. Referring to Chitty on Contracts, 29th Edition, 2004 vol. 2 (Specific Contracts) page 81 paragraphs 31-134, he submitted that an estate agent earns his commission after the sale and that his fee is paid from the purchase price. He cited several authorities, including Dennis Reed Ltd vs Goody (1950) 2 KB 277 at 284 & Odufunade vs Rossek (1962) 2 NSCC 68, in support of this position.

On the validity of Exhibits A and B in the absence of the signature of the 3rd respondent, he contended that once all the administrators had agreed to the sale, the property could be conveyed by one or more of them. He maintained that from the testimony of DW1 under cross-examination, there was concurrence between all the administrators on the sale of the property. He relied on Ibrahim Vs Ojomo (2004) 4 NWLR (Pt. 862) 89 at 104 F-G; 108 F-G. 109 E-F & 122 A-B. He urged the Court to invoke Section 167(d) of the Evidence Act against the respondents in view of the fact that the 1st and 2nd respondents, who executed Exhibits A and B, did not testify.

Learned counsel submitted further that the judgment of the lower Court is perverse, as it is not supported by the evidence on record. He submitted that the finding of the Court that Jamilu had no authority to conclude the contract or sign it or to represent to the appellant that signatures of two out of the three administrators would suffice, is not supported by the record. He submitted further that there was no evidence to support the lower Court’s conclusion that Jamilu was the person who collected the N100 million paid by the appellant. He submitted that although the copy of the cheque and bank teller used to pay the money were rejected as exhibits, the respondents did not adduce any evidence to controvert the acknowledgment contained in Exhibits A and B. He submitted that the Court below relied on the mere ipse dixit of DW1 to contradict the contents of Exhibit B.

Learned counsel for the respondents commenced his argument in opposition by restating the law on the requirements for a valid contract. He referred to Best (Nig) Ltd. Vs Blackwood Hodge (Nig) Ltd (2011) 5 NWLR (Pt.1239) 95 at 127 C-E; Dodo Vs Solanke (2006) 9 NWLR (Pt.986) 447 at 468 B-G. He submitted that for there to be a valid contract, the following must exist:
(a) Offer
(b) Acceptance
(c) Consideration
(d) Capacity to contract; and
(e) Intention to create legal relations
See Yaro Vs Arewa Construction Ltd (2007) 16 NWLR (Pt.1063) 333 at 377-378 E-C; 389 A- B. He submitted that the absence of any of these ingredients invalidates the contract. He submitted that in the instant case, Exhibits A and B, admitted in evidence by the learned trial Judge, have no evidential value because the law is settled that administrators of an Estate must act jointly and with one accord. He referred to Yusuf Vs Dada & Ors (1990) 3 NSCC 125 at 144 lines 1-14 per Agbaje, JSC & Ibrahim Vs Ojomo (2004) 4 NWLR (Pt. 862) 89 at 115- 116 H-G; 117-118 G – H. He also referred to paragraph 11 of the PW1’s witness statement on oath, wherein he averred that the respondents represented to him that the signature of any two of the administrators was sufficient to validate the contract. He noted that this averment was vehemently denied by the 1st-3rd respondents in paragraphs 5 and 6 of their Joint Statement of Defence wherein it was averred, inter alia, that the appellant went to Hadejia in the company of Jamilu with the intention of prevailing on the family members to sign without the 3rd respondent. He argued that this is a clear indication that there was no concurrence among the administrators in the signing of Exhibits A and B.

He referred to paragraph 6 of the Appellant’s reply to the Joint Statement of Defence wherein he averred that after Exhibits A and B were signed by the 1st and 2nd respondents, Jamilu returned the documents informing him that there was no further need for the 3rd respondent’s signature. He submitted that from his pleading, it was evident that it was the appellant who aborted the transaction. He referred to paragraph 26 of the Statement of Defence at page 43 of the record. He submitted that the fact that the appellant relied on the statement of Jamilu, who is not an administrator of the estate, to the effect that there was no need for the 3rd administrator to execute the documents, was sufficient to negate the agreement.

He submitted further that paragraph 11 of PW1’s witness statement on oath and paragraph 6 of his reply to the Statement of Defence are contradictory and amount to approbating and reprobating, which is not permitted. He relied on Ogualaji Vs A.G. Rivers State (1997) 6 NWLR (Pt. 508) 209 at 222 C-D. He submitted that contrary to the appellant’s submission, the lower Court was right in placing reliance on the authority of Ibrahim Vs Ojomo (supra). He submitted that the Court did not consider the effect and interpretation of Section 4(2) of the Administration of Estates Law of Lagos State 1973 in isolation, but also considered the applicable legal principles regarding representation where more than one administrator is appointed for the Estate of a deceased. He referred to the holding of Kalgo, JSC at page 116 E-G, wherein His Lordship stated that since the right and interest of the administrators is joint, they must operate together and that giving out of such right or interest by some of them to anyone, does not bind the others who did not give their consent thereto.

He submitted that the views expressed by the learned Justices in the case were based on the doctrine of joint representation, which therefore constitutes the ratio decidendi of the case and is on all fours with the instant case. He urged the Court not to depart from its decision in the case. He submitted that Exhibits A and B are of no evidential value and ought to have been expunged from the record by the learned trial Judge in the course of writing the judgment.

On the ingredients of a valid contract, he submitted that there was an offer and counter-offer but no acceptance, no consideration, no mutuality of purpose and intention and no meeting of the minds between the appellant and the 1st-3rd respondents and therefore no valid contract. He submitted that the appellant’s pleading and evidence to the effect that he made payment of N100 million to the 1st-3rd respondents via three Bank PHB Manager’s cheques, was stoutly denied in paragraphs 4, 5, 6, 8, 9, 10, 19, 25, and 31 of the Statement of Defence and paragraphs 21, 25, 26, 28, 29, 30, 31, 41, 42, 43, 44, 45, 46, 47, 48, 49, 51, and 56 of the 3rd Respondent’s Written Statement on oath at pages 20, 21, 23, 25, 43, 44, 46, 47 and 48 of the record. He submitted that the appellant failed to prove that he made the said payment to the 1st-3rd respondents. He noted that he averred in paragraph 4 of his reply to the Statement of Defence that he made the payment to Jamilu Sheikh Mujaddadi, who was neither an administrator nor a respondent in the case. He noted further that this averment was confirmed by PW2 under cross-examination.

He submitted that the evidence of PW2 amounts to an admission against interest. He relied on: Onisaodu Vs Elewuiu (2006) 13 NWLR (Pt.998) 517 at 529-530 G-A; 532 B – C. On the effect of conflicting evidence, he relied on Ojukwu Vs Obasanjo (2004) 1 EPR 626 at 674 – 675 (CA).

Relying on the case of Incar Nig. Plc VS Bolex Eng, Nig. (2001) 12 NWLR (Pt. 728) 648 at 680- 681 H-H; 681-682 G-E, he submitted that in a contract of sale, an agent cannot conclude the sale on behalf of his principal. He submitted that from the evidence of DW1 on record, Jamilu was only an agent for the purpose of finding a buyer and that he had no authority to sell. He relied on the principle of nemo dat quad non habet

He submitted that while the 1st-3rd respondents have denied the appellant’s contention that there exists a valid contract between them, the appellant failed to controvert their assertion and documentary evidence to the effect that they have a valid contract, duly executed by all three administrators, in favour of the 4th respondent. He submitted that there is no privity of contract between the appellant and the 1st-3rd respondents and further that the said respondents have no privity of contract in the transaction between the appellant and Jamilu. On privity of contract, he cited a host of authorities including: LSDPC Vs NIL. & N.L. & S.F Ltd. (1992) NWLR (Pt.244) 653 at 669-670 F-B, U.B.A. Plc Vs Jargaba (2007) 11 NWLR (Pt.1045) 247 at 266-267 H-A, Eperokun Vs Unilag (1986) 7 SC 106; (1986) 4 NWLR (Pt.34) 162.

Learned counsel submitted that assuming, without conceding, that the lower Court erred in holding that Exhibits A and B were invalid because they were not signed by all the administrators, they could still not be relied upon to establish a valid contract because the appellant failed to prove that he paid consideration to the 1st-3rd respondents and further that, having failed to fulfill the conditions agreed upon, there was a breach of the material terms for the coming into being of the contract. He submitted, relying on Afrotec Tech. Services (Nig) Ltd Vs MIA & Sons Ltd (2000) 15 NWLR (Pt. 692) 730 at 785 G-N, that the 1st-3rd respondents were at liberty to have treated the contract as being extinguished and were also at liberty to transact with a different party. He cited Best Nig Ltd Vs Blackwood Hedge Nia. Ltd. (supra) at 117-118 A-F.

This appeal is against concurrent findings of fact by the two lower Courts. In order to persuade this Court to interfere with those findings, the appellant must satisfy the Court that the findings are perverse, unsupported by the evidence on record or that there has been some error of procedural or substantive of law that has occasioned a miscarriage of justice. See Okeremute Vs The State (2021) LPELR – 55335 (SC) at 15 A – C, Atolagbe Vs Shorun (1985) 1 NWLR (Pt. 2) 360 and Iwuoha Vs Nigerian Postal Services Ltd. & Ors. (2003) 4 SC (Pt. II) 37.

As rightly submitted by learned counsel for the respondents, the essential requirements of a valid contract, which must co-exist, are:
(a) Offer
(b) Acceptance
(c) Intention to create legal relations
(d) Consideration; and
(e) Capacity to contract
See Bilante International Ltd. Vs N.D.I.C. (2011) 15 NWLR (Pt.1270) 407, Alfotrin Ltd. vs A.G. Federation & Anor (1996) 9 NWLR (Pt.475) 634, BPS Construction & Eng. Co. Ltd. Vs FCDA (2017) 10 NWLR (Pt. 1572) 1. In Alfotrin vs A.G. Federation (supra), it was held that for there to be an enforceable contract, “there must be a concluded bargain which has settled all essential conditions that are necessary to be settled and leaves no vital term or condition unsettled.” It is the appellant’s contention that all the requirements were met in the instant case. It is necessary at this stage to reiterate the appellant’s main relief at the trial Court. He sought:
“A declaration that there is a valid and subsisting contract for the sale of the property consisting of a five bedroom duplex with two rooms, guest chalet and two room boys’ quarters with appurtenances covered by Certificate of Occupancy No … ”

In the instant case, the parties are ad idem that the property in dispute was offered for sale by the administrators of the Estate of Sheikh Maijaddadi. While the appellant contends that the property was put up for sale at N100 million and nothing more, it is the contention of the 1st-3rd respondents that in addition to the sale price of N100 million, any prospective buyer was also required to pay a 5% agency fee of N5 million. The appellant has argued very strenuously that an agency fee was never a precondition for the sale. It is important to note that in the absence of a counter-claim, the onus remained on the appellant to prove that all the ingredients of a valid contract were fulfilled.

The appellant relies on Exhibits A and B as proof of acceptance, consideration, capacity to contract and intention to create legal relations. As regards these requirements, it is contended that the 1st and 2nd respondents who executed the documents, had the legal capacity to contract on behalf of the three administrators and that the receipt clause therein constitutes proof that they received the purchase price of N100 million.

From the pleadings and evidence before the trial Court, could it be said that the appellant furnished consideration to the 1st-3rd respondents? Consideration under the law of contract is defined as some right, interest, profit or benefit accruing to one party or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other. Parties to a contract are free to conclude their bargain on whatever terms are deemed to be appropriate. See BFI Group Corporation Vs B.P.E. (2012) 18 NWLR (Pt. 1322) 209; (2012) LPELR- 9339 (SC) at 39-40 E-C per Adekeye, JSC.

In paragraph 9 of his statement claim, the appellant pleaded thus:
“9. The appellant avers that he made the agreed payment of One Hundred Million Naira only (N100,000,000.00) to the defendants in three Bank PHB manager’s cheques described as follows:
(a) Manager’s cheque No. 50556497 dated 03-07-07 for the sum of Seventy Million Naira only.
(b) Manager’s cheque No. 50556498 dated 03-07-07 for the sum of Twenty Million Naira only.
(c) Manager’s cheque No. 50575095 dated 09-07-07 for the sum of Ten Million Naira only.”

This averment was specifically denied in paragraphs 8 and 9 of the Amended Statement of Defence as follows:
“8. The 1st – 3rd Defendants deny paragraph 9 of the statement of claim in its entirety. The Defendants however aver that no such amount or any amount at all was paid by the Plaintiff and no such amount or any amount at all was received by them or by anybody on their behalf for the sale of the property…
9. The 1st-3rd defendants further aver that the plaintiff did not pay the said N100 million or paid (sic) any sum at all to the defendants as he (the plaintiff) said he cannot pay the said amount and the 5% agency fee.”

In paragraph 4 of his reply to the amended statement of defence, the appellant averred:
“4. The plaintiff states that payments made for the purchase of the property were made in three bank drafts made payable to the administrators of the Estate of Sheikh Mujaddadi as required by the 1st-3rd Defendants acting through their agent, Jamilu Sheikh Muiaddadi, who received the drafts on behalf of the 1st-3rd Defendants.”
(Emphasis mine)

The onus was thus on the appellant to prove not only that Jamilu had authority to act on behalf of the administrators, but also the alleged payment of N100 million to them.

The appellant filed a written statement on oath in support of his pleadings and testified as PW1, while the 3rd respondent filed a written statement on oath and testified as DW1 on behalf of all the defendants.

The learned trial Judge, at page 225 of Vol. 1 of the record, found as follows:
“Without much ado on this question. The evidence before the Court is that the plaintiff made payment of N100 million to Jamilu Sheikh Mujaddadi in respect of the property. The pertinent question to ask is whether the payment was made to the administrators. For the sake of emphasis, the plaintiff paid to Jamilu Sheikh Mujaddadi the sum of N100m. Earlier in this judgment, it was held that there is no evidence to show that the said money was given to any of the administrators. It was paid into a company account of Magama Nig. Ltd. There is equally no evidence to show that Jamilu had the instruction of the administrators to receive payment on their behalf, nor to deposit such payment into Magama Nig. Ltd. Account. It is in evidence that the authority given to Jamilu as an agent was to the extent of finding a buyer. He had no authority to sell or accept payment for the property. The only conclusion that can be reached is that Jamilu was on his own frolic when he received the payment of N100m from the plaintiff. To that extent, I hold that the plaintiff did not make payment for the property in dispute. The issue as to withholding of evidence canvassed by the plaintiff is of no moment hence the receipt of payment by Jamilu was not authorized by the administrators.”

In affirming this finding, the Court below held at pages 552-553 Vol.2 of the record:
“In such a dispute, one expected that the appellant would have tendered the cheques through which he made the payments to the 1st – 3rd respondents, to prove that he indeed made the payments to them. He did not do this at all, Instead, he filed a reply to the Amended Statement of Defence and this time, averred that he made the payment to Jamilu. See paragraph 4 at page 99 of the Supplementary Record and page 158 of the record, where a legal practitioner and the appellants’ solicitor stated under cross-examination, in support of the averment in the reply to the Amended Statement of Defence, that:
“The draft was not given to any of the administrators but it was given to Jamilu.”
In the face of the averments in the reply to the Amended Statement of Defence and the evidence of the appellants’ solicitor, it is patently obvious, that the position of the 1st – 3rd respondents to the effect that the appellant did not make any payment to them in respect of the property in question, has been vindicated. It has not been shown that when Jamilu allegedly received the N100,000,000.00 from the appellant, he gave same to the 1st – 3rd respondents. There is therefore no evidence before the trial Court or this Court for that matter, that the appellant had furnished any consideration whether N100,000,000 only or plus 5% agency fee, to the 1st – 3rd respondents, the only valid Administrators to the Estate, for a contract to exist between them and the appellant. This is because in law, all the elements of a contract, must co-exist, before its validity can be established.
(Emphasis by their Lordships)

In my respectful view, the concurrent findings of the two lower Courts on the alleged payment of N100 million to the Administrators of the Estate cannot be faulted. The appellant was unable to discharge the onus on him to prove that he paid any money to the 1st-3rd respondents. Thus a vital ingredient of the contract was not fulfilled.

Another important issue to consider is whether, being joint administrators of the Estate, the 1st and 2nd respondents had the capacity to contract without the concurrence of the 3rd respondent. The position of the law in this regard was eloquently stated in the case of Ibrahim Vs Ojomo (supra), relied upon by learned counsel for both parties.
It is true that in the said case, it was Section 4(2) of the Administration of Estates Law, Cap.2 Laws of Lagos State, 1973 that was construed. The Section reads as follows:
“4(2) Where as respects real estate there are two or more personal representatives, a conveyance of real estate devolving under this part of this law shall not, save as otherwise provided as respects trust estate, be made without concurrence therein, of all such representatives or an order of the Court…”
This provision accords with the general principle of law as stated in Williams and Mortimer, Executors Administrators and Probate, 1970 Edition at page 463, cited with approval by this Court in Ojomo’s case at 118 C – E (supra), to wit:
“Where more than one executor or administrator is appointed, the joint office is treated as that of an individual. Each executor represents the estate for all purposes, subject only to the statutory exceptions. They have joint and entire interest in the estate (real or personal) of the testator or intestate which is incapable of being divided…”
On the meaning of “concurrence”, His Lordship Edozie, JSC held at page 108 D-G (supra):
“Longman’s Dictionary of Contemporary English defines the word “concurrence” as agreement. Black’s Law Dictionary, 6th edition at page 291, talks of concurrence “as a meeting or coming together; agreement or union in action, meeting of minds, union in design; consent.” I am of the view that the expression “concurrence” therein appearing in Section 4(2) of the Administration of Estates Law… (supra) means the agreement or consent of all the personal representatives in the conveyance of the real estate of the deceased. Evidence of such concurrence can be manifested by the execution of the conveyance by all the personal representatives but it is not limited to that. Where there are several personal representatives and they are all in agreement that the deceased’s estate vested in them should be disposed or alienated, one or some of them can validly execute a conveyance in that regard, but if there was no concurrence of all of them, such a conveyance executed by some of them can only be valid with order of Court.”
His Lordship went on to reiterate that a conveyance will not be void merely because all of the personal representatives did not execute it. If there is evidence of concurrence by all of the said representatives, such a conveyance would be valid even though not signed by all.

By Sections 133(1) and (2) and 136(1) of the Evidence Act, 2011, provide:
“133(1) In civil cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
(2) If the party referred to in Subsection (1) of this Section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no move evidence were adduced and so on consecutively until all the issues in the pleadings have been dealt with.
(3) …”
“136(1) The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person, but the burden may in the course of a case be shifted from one side to the other.”
As stated earlier in this judgment, the burden of establishing his entitlement to the declaratory relief he seeks, rests squarely on the appellant. It is only where he has established a prima facie case, that the defendant would be required to adduce evidence to rebut it. The onus therefore lay on the appellant in the first instance, to satisfy the Court that there was indeed concurrence between all the administrators.

In paragraph 6 of the Statement of Claim (page 5 Vol. 1 of the record), the appellant averred:
“6 That at the time of the sale agreement aforesaid, the defendants represented to the plaintiff that they have full authority to dispose of the property and that the signature of any two of the three administrators was sufficient to execute any document in evidence of the sale transaction.”
In paragraphs 56, 57 and 58 of their Statement of Defence, the above averment was stoutly denied. The respondents averred:
“56. That contrary to paragraphs 6, 7, 8 and 9 of the affidavits in support of the Writ of Summons there exists no valid contract between the Plaintiff and the Administrators as the contract was never completed and/or executed.”
57. That contrary to paragraph 7 of the affidavit in support of the Writ of Summons, we (the Administrators) never told the Plaintiff that any two signatories out of the three were sufficient to execute any document in evidence of the sale transaction.
58. That having told the plaintiff that the signature of the three administrators is required before the contract can exist between us, and in his insistence bid went to Hadejia with Jamilu to prevail on other members of the family to override the signature of the third Administrator, a bid that also failed.”

Now, in reaction to the above denial and contrary to his averment in paragraph 6 of his pleadings, that it was the 1st-3rd respondents who represented to him that any two of the three administrators could sign the agreement, he averred thus in paragraphs 5 and 6 of his Reply to the Statement of Defence:
“5. The plaintiff further states that it was Jamilu Sheikh Mujaddadi who took the Deed of Assignment dated 2nd July, 2007 and the contract of sale dated 2nd July, 2007 to the 1st- 3rd Defendants for purposes of execution.
6. The plaintiff states that Jamilu Sheikh Mujaddadi returned the Deed of Assignment and Contract of Sale after it was signed by the 1st and 2nd Defendants explaining that as two of the administrators have signed, there was no further need for the 3rd defendant to sign the documents.”

These averments, in my respectful view, are rather damnifying against the appellant. The averment in paragraph 6 in particular constitutes an admission against interest. Under cross-examination, PW2, a legal practitioner and plaintiff’s solicitor in the transaction, testified thus:
“The draft was not given to any of the administrators but it was given to Jamilu.”

The 1st-3rd respondents pleaded and led evidence to the effect that members of the family, including Jamilu, were only instructed to look for possible buyers for the property and notify them once any had been found. They also pleaded and led evidence to the effect that the 1st and 2nd respondents signed Exhibits A and B on the understanding that the Plaintiff was prepared to pay the purchase price plus the agency fee and that once he had furnished the said consideration, the documents would be delivered to the 3rd respondent for his own signature. That, as the appellant refused to pay the agency fee, the 3rd respondent did not sign the documents. It was further pleaded and averred in the 3rd respondent’s written statement on oath, that of all the prospective buyers, it was only the 4th respondent who agreed to pay the agency fee. It was averred that having fulfilled the terms of their agreement, all three administrators executed a Deed of Conveyance and Sale of Agreement in his favour. Furthermore, that the proceeds from the sale of the 4th respondent were distributed among all the beneficiaries, including Jamilu.

The learned trial Judge, at page 220 of the record, in finding that there was no concurrence between the three administrators to sell the property to the appellant without the agency fee, referred to the evidence of DW1, wherein he stated that the administrators met and rejected the appellant’s counter-offer proposing that the agency fee should be deducted from the N100 million purchase price.

The Court below affirmed the finding, based on the same evidence. I see no reason to interfere with the well-considered findings fully supported by the record.

Having failed to prove concurrence between the three administrators, the appellant failed to establish yet another element of a valid contract. He failed to prove that the 1st and 2nd respondents had the capacity to contract and bind all the administrators in the agreements, Exhibits A and B, allegedly entered into with him.

The lower Court at page 557 of Vol.2 of the record held:
“In this vein therefore, one of the elements of a contract – capacity to contract – was also absent. I hold that as there was no consideration and no capacity to contract, there was no valid contract binding between the 1st-3rd respondents and the appellant. Certainly, the terms of the contract were also not agreed to at all, as there was no consensus ad idem. The trial Judge was therefore right when he held that there is no contract between the appellant and the 1st-3rd respondents. Since Exhibits A and B are the documents relied upon by the appellant to seek for the reliefs claimed, and since there was no valid contract between them to be signified by Exhibits A and B, Exhibits A and B are clearly unenforceable and void. The issue as to whether Exhibits A and B are void or voidable because only two of the Administrators signed, does not arise, since there was no consideration, no meeting of the minds, no capacity to contract and so there was no valid contract to give birth to Exhibits A and B as they purportedly did.”

I fully concur with the views expressed by their Lordships. There is no basis for interference with their sound reasoning. In the absence of an enforceable contract between the appellant and the 1st-3rd respondents, there is no further issue to resolve in this appeal. As noted earlier in this judgment, the appellant’s reliefs 2 and 3 in his Statement of Claim are predicated on the success of the declaration sought in Relief 1.

In this circumstance, I resolve this issue against the appellant. A consideration of any other issue in this appeal has become academic and would serve no useful purpose.

In conclusion, I find no merit in this appeal. It is hereby dismissed. The parties shall bear their respective costs in the appeal.

MARY UKAEGO PETER-ODILI, J.S.C.: I am in agreement with the judgment just delivered by my learned brother, Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC and to register the support I have in the reasonings from which the decision emanated, I shall make some remarks.

This is an appeal against the judgment of the Court of Appeal, Abuja Division or Court below or lower Court, Coram: Hussein Muktar, Abubakar Datti Yahaya and Regina Obiageli Nwodo JJCA, delivered on the 1st February, 2013 which affirmed the decision of the High Court of the Federal Capital Territory, Abuja.

FACTS BRIEFLY STATED
The 1st, 2nd and 3rd Respondents were the Administrators of the estate of late Sheikh Mujaddadi. The deceased owned the property in dispute, located at No. 7A Iyamoye Close, Off Gimbiya Street, Garki II, Abuja. In 2007, the Administrators agreed to sell the property to the Appellant. Based on that agreement, the Appellant paid the agreed purchase price of N100,000,000.00 (One hundred million Naira only) for the property. A written contract for the sale (Exhibit A) and a Deed of Assignment (Exhibit B) both dated the 2nd of July 2007 were executed. The Appellant signed both agreements while the 1st and 2nd Respondents signed both agreements, the 1st and 2nd Respondents signed for the three Administrators. In the Deed of Assignment which was admitted in evidence as Exhibit B, the Administrators acknowledged receipt of the purchase price.

The Appellant was given the keys to the property as well as the original Certification of Occupancy by the one Jamilu Mujaddadi, one of the heirs of the deceased but not an administrator of the Estate and he immediately took possession of the property and has lived there ever since.

Shortly after taking possession, the Appellant became aware that the Administrators were in the process of selling the property to another person for a higher price and immediately commenced proceedings in the High Court for specific performance of his contract of sale. It turned out that the Administrators subsequently “sold” the same property to the 4th Respondent.

In the two lower Courts, the Respondents contended that the agreement with the Appellant was void, as only two out of the three Administrators of the Estate signed Exhibits A and B. The Respondents claimed that the subsequent sale to the 4th Respondent was the valid transaction over the property because all three administrators signed that agreement. The two lower Courts were persuaded by the argument. The High Court dismissed the Appellant’s claim while the Court of Appeal dismissed the appellant’s appeal which further held that the agreement with the appellant was void because he did not pay the agency fee of 5%, notwithstanding that Exhibits A and B said nothing about an agency fee. The 4th respondent had counter-claimed at the High Court for a declaration that he was the rightful purchaser of the property. That counter-claim was withdrawn and dismissed by the trial Court and 4th respondent did not appeal against the dismissal. The Court below awarded him the title.

On the 20/9/2021 date of hearing, learned counsel for the appellant, Paul Erokoro SAN adopted the amended brief of argument filed on 13/11/2020 and deemed filed on 20/9/2021. In it, he distilled four issues for determination:
(1) Whether the lower Court properly construed Exhibits A and B (distilled from grounds 1 and 2 of the Amended Notice of Appeal).
(2) Whether the lower Court’s decision was not perverse (distilled from grounds 3 and 4 of the Amended Notice of Appeal).
(3) Whether the lower Court was right to deem paragraphs 10 and 11 of the Respondents’ Amended statement of defence as admitted on the ground that the averments were not controverted by the Appellant (distilled from grounds 5 of the Amended Notice of Appeal).
(4) Whether the agency fee of 5% was a binding term of the contract of sale to the Appellant when there was no agent in the transaction and the contract never mentioned any agency fee (distilled from ground 6 of the Amended Notice of Appeal).

J. J. Usman Esq., learned counsel for the respondents adopted the brief of argument filed on 24/1/2014 and deemed filed on 20/9/2021. He formulated two issues for determination which are as follows:
1. Whether the learned Justices of the Court below were right when their Lordships held that there is no enforceable contract between the Appellant and the 1st-3rd Respondents (Distilled from grounds 2, 3 and 4 of the Notice and Ground of Appeal).
2. Whether the Court below was right when it affirmed the judgment of the trial Court on finding of facts (Distilled from ground 1 of the Ground of Appeal).

The two issues of the respondent are apt for my use in the determination of this appeal.

Learned Senior Advocate for the appellant contended that the sale to the appellant was regulated by Exhibits A and B, none of which required the appellant to pay any agency fee as a condition for the sale of the property. The fact that the 3rd respondent did not sign Exhibit A did not affect the fact that the terms are binding on all the Administrators. That based on the doctrine of sanctity of contract, the 1st and 2nd respondents cannot under the law be allowed to resile from an agreement they freely entered into. He cited A.G. Ferrero & Co. Ltd v H.C. Nig. Ltd (2011) 13 NWLR (pt. R65) 592 at 606 etc.

It was further stated for the appellant that the payment of the 5% agency fee was not provided for in the written contract, Exhibits A and B and that extrinsic evidence could not be admitted to vary or alter their contents. He cited Section 128(1) of the Evidence Act (formerly Section 132 (1); U.B.N. v Ozigi (1994) 3 NWLR (pt.333) 385 at 400 etc.

That the Court below misconstrued Exhibits A and B as the decision was the exact opposite of what the evidence showed.

Learned silk for the appellant contended that the execution of Exhibits A and B by only 1st and 2nd respondents was valid, notwithstanding the oral testimony of DW1. He referred to Section 167(d) of the Evidence Act to the effect that the failure of Respondents to call the 1st and 2nd respondents who signed the said exhibits as witness showed there was no evidence to prove any of the exceptions to the general rule in Section 128(1) of the Evidence Act.

He stated that the decision of the lower Court was perverse because that Court had no basis for its conclusion that Exhibits A and B were signed by Jamilu since none of the parties so claimed that Jamilu signed the documents. Also that there was no evidence to support the lower Court’s conclusion that Jamilu was the person who collected the sum of N100 million paid by the appellant for the property.

That the trial Court having dismissed the 4th respondent’s claim for validation of his contract of purchase of the property, and the decision not appealed, the lower Court was wrong to grant such a relief to the 4th respondent in its judgment as the doctrine of res judicata applied to the decision of the trial Court.

For the appellant, it was canvassed that the decision of the Court below to treat the 5% agency fee as part of the purchase price for the property was erroneous. He cited Mekwunye v Emirates Airlines (2019) LPELR- 46553.

For the respondents, learned counsel submitted that although Exhibits A and B were admitted by the trial Court, they had no evidential or legal value and the Court below was right to have held so. The reason being that it is settled law that the Administrators of an Estate must act jointly and not severally. He cited Yusuf v Dada & Ors (1990) 3 NSCC 125 at 144.

Learned counsel for the respondents contended that it is settled law that all the ingredients of a valid contract must be present for a contract to be valid which is not the case in this instance. That there was an offer and counter-offer but no acceptance, no consideration, no mutuality of purpose and intention and no meeting point of minds between appellant and the 1st – 3rd respondents. He cited Yaro v Arewa Construction Ltd (2007) 16 NWLR (pt. 1063) 333 at 377 – 378 & 379.

He stated that on that, the law as at today is that, in a contract of sale, an agent cannot conclude a contract of sale on behalf of his principal. He cited INCAR (Nig) Ltd v Bolex Eng. Nig (2001) 12 NWLR (pt. 728) 648 at 680 – 681.

That the respondents having expressly mentioned that Jamilu is an agent for the purpose of finding a buyer, it excludes him as an agent for purpose of selling the same.

For the respondents, it was stated that the law on privity of contract is settled that a person is not under any obligation to bear, the burden of a contract to which he is not privy, even though the contract is in his favour or benefit. That only a person who is privy to a contract can sue on it, a principle based on consensus ad idem. He cited United Bank for Africa Plc v. Jargaba (2007) 11 NWLR (pt.1045) 247 at 266 – 267.

Learned counsel for the respondents contended that as at the time of making the contract, the property in the goods had not passed to the appellant since appellant had not fulfilled the conditions agreed upon and so the 1st to 3rd respondents were at liberty to have treated the contract as extinguished and so were at liberty to have sold the property to the 4th respondent. He cited Best (Nigeria) Ltd v Blackwood Hodge (Nigeria) Ltd (2011) 5 NWLR (pt. 1239) 95 at 117 – 118.

For the respondents it was submitted that they asserted the existence of 5% agency fee as the condition precedent and it was pleaded in paragraphs 4, 8, 9 and 10 of the Amended Statement of Defence on Oath. That it is a condition precedent which need not be inserted as a clause in Exhibits A and B. He cited Ekpechi v Owhonda (1998) 3 NWLR (pt. 543) 618 at 642.

Learned counsel for the respondents stated that the plaintiff did not deny the averment concerning the 5% agency and so it was taken as admitted. In a nutshell, the stance from either side may be captured in bullet point form in the way following. For the appellant, the stance is stated hereunder as follows:-
1. Contrary to the decision of the lower Court, Exhibits A and B are valid notwithstanding that they were signed by only 2 out of the 3 administrators of the Estate.
2. Payment of 5% agency fee was not a pre-condition for the sale of the property, as that condition was not contained.
3. By virtue of Section 128 of the Evidence Act, where a contract has been reduced into writing, no other evidence may be given of the terms of that contract.
4. None of the exceptions to the general rule in Section 128 of the Evidence Act are applicable in this case.
5. The lower Court misconstrued Exhibits A and B when it held, contrary to the contents of the two exhibits and the deposition of DW1 in paragraph 21 of his witness statement on oath, that payment of agency fee was a condition precedent to the sale of the property.
6. On the authority of ODUFUNADE V. ROSSEK (1962) 2 NSCC 68, and estate agent earns his commission after the sale of the property, not before.

7. On the authority of IBRAHIM v. OJOMO (2004) 4 NWLR (pt. 862) 89, one or two Administrators can sign the conveyance, if all the Administrators have agreed that the property be sold.
8. There is a presumption of withholding evidence against the Respondents for their refusal to call 1st and 2nd Respondents, who executed Exhibits A and B, to testify before the trial Court.
9. Contrary to the decision of the lower Court, the evidence before the Court as contained in the receipt clause of Exhibits A and B, was that the 1st and 3rd Respondents acknowledged receipt of the N100 million paid by the Appellant for purpose of the property.
10. The lower Court reached a perverse decision when it held, contrary to the admission of the Respondents, that Exhibits A and B were signed by one Jamilu, whereas the said documents were signed by the 1st and 2nd Respondents.

The position as espoused by the respondents is stated thus:-
1. It is significant to note that the Appellant in this appeal under the contract agreement had the duty to take Exhibits A and B to the 1st – 3rd Respondents to sign and pay them the agreed sum which was to be received by 3rd Respondent therein. With him having failed to do so, he cannot now turn round and use his deliberate act as a sword to attack the Respondents.
2 The Appellant cannot rely on his own illegality to declare the sale of the property to the 4th Respondent void. It is incumbent and expected that the Appellant had perfected the transaction for purpose of specific performance of same as agreed upon by the parties, but he failed. Further still, we would restate that the Appellant’s own misdeed cannot give him any right of action which he instituted at the trial Court in the absence of the acceptance and furnishing of consideration. The Appellant’s suit should, in his own coin, also have been declared as incompetent, for his inconsistencies, approbating and reprobating in his pleadings and evidence before the trial Court.
3. By the Appellant opting out of the agreement, his intention was to frustrate the contract which he willingly entered into. He should not in the circumstance be allowed to benefit from his own deliberate act by approbating and reprobating at the same time. It is the law that no one should be permitted to profit by his own wrong or default. This is aptly put by the Latin expression nullus commodum capere potest de injuria sua propria.

It seems to me that, it would be quite inequitable for the Appellant conscious and fully aware of his agreement and fully aware of his agreement with the 1st – 3rd Respondents and its legal implications, willingly and willfully, eyes wide opened, to be allowed now to claim that what he did by withdrawing from the contract, he should still be allowed to enjoy the benefit of the aborted contract whereas the 4th respondent paid for the property as far back as 12th July, 2007 and the beneficiaries of the estate had since enjoyed the benefit of their shares from the sale of the property to the 4th respondent.

This Court has consistently refused to allow people like the Appellant to claim any benefit from their own deliberate acts of unfairness by trying to exploit or hide under any absurd technicalities there may be in the law. The senses and sensibilities of equity, fair play and fairness are always protected and enforced by the Courts in all legal agreements or relationships freely entered into or created by the parties themselves. The duty to do so in this appeal could not be more compulsive.

In tackling the matter before me, it is necessary to refer to the definition of the word “contract” which in simple terms is a legally binding agreement between two or more persons by which rights are acquired by one party in return for the acts or for consideration on the part of the other. See Best (Nigeria) Ltd v Blackwood Hodge (Nigeria) Ltd (2011)5 NWRL (pt. 1239) 95 at 127; Dodo v. Salanke (2006) 9 NWLR (pt. 986) 447 at 468 per Kekere-Ekun, JCA (as he then was).
A contract is formed once there is an offer by the offeror to the offeree which is accepted by the offeree backed by consideration. At that point in time, the parties to the contract are said to be ad idem or in agreement and such agreement or contract becomes binding on both parties and is enforceable by action.

It is settled in law that for there to be a valid contract, certain ingredients must exist and conjunctively present as the absence of any of the ingredients missing invalidates the contract. These include:
(a) Offer
(b) Unqualified acceptance
(c) Consideration
(d) Intention to create legal relation

In the case at hand, the appellant in an attempt to prove that there is a contract between him and the 1st – 3rd respondents, called two witnesses including himself and tendered two exhibits marked Exhibits A and B, which exhibits the Court below invalidated although they had been admitted by the learned trial judge.

This position taken by the Court below is appropriate and backed by law as the Administrators of the Estate must act jointly and not separately. They must act in one accord as one or others cannot act without any other or others. I call in aid the case of YUSUF V. DADA & 3 ORS (1990) 3 N.S.C.C 125 AT 144 LINES 1-14 per Agbaje, J.S.C where he said:-
“As regard the position, vis-a-vis the administration of the estate, where more than one executor or administrator is appointed, as it is the case in hand, the same work says at page 466:-
“Joint representation: where more than one executor or administrator is appointed the joint office is treated as that of an individual person. Each executor represents the estate for all purposes subject only to the statutory exceptions.
They have a joint and entire interest in the estate (real and personal) of the testator or intestate, which is incapable of being divided, and in cases of death such interest vests in the survivor without any new grant by the Court. Consequently, if one or two executors or administrators purport to grant or release his interest in the testator’s intestate’s estate to the other, nothing passes, because each was possessed of the whole before. Similarly, the act of one in possessing himself of the effects is the act of the others, so as to entitle them to join interest in possession and a joint right of action if needed.”
This Supreme Court, again in IBRAHIM V. OJOMO (2004) 4 NWLR (PT. 862) AT 115-116 per Kalgo, JSC (as he then was) held thus:-
“The main plank of this appeal centered around the provisions of Section 4(2) of the Administration of Estates Law, Cap.2, Laws of Lagos State 1973, and the validity of the agreement entered into between the appellant and two out of the three administrators of the estate of Chief M.E. Ojomo (deceased), for the development of the two landed properties of the deceased.
Section 4(2) of the said law provides:
Where as respects real estate, there are two or more personal representatives, a conveyance of real estate developing under this part of this law shall not, save as otherwise provided as respects trust estates, be made without concurrence therein of all such representatives or an order of the Court” …
The properties concerned here are landed properties comprising of plot numbers 42 and 44 Doherty Street, Lagos which are no doubt real estates. The agreement is conveying the said properties to the appellant for redevelopment, but the conveyance Exhibit D11 was executed in this case by only two out of the three administrators of the said estate. This was the finding of the learned trial Judge and affirmed the Court of Appeal. The 3rd representative, an administratrix, Mrs. Adejoke Delano emphatically denied any agreement authorising Respondents/appellants to demolish and redevelop the properties concerned.
There is therefore no concurrence therein of all the representatives of the estate, as compulsorily required by Section 4(2) above and so there is no compliance with the provisions of Section 4(2) of the said law which are very clear and unambiguous. I agree with the Court of Appeal that the question of equitable interest in favour of the Respondent/appellant did not and could not arise in the circumstance of this case. Also since the right and interest of the administrators/administrative of any estate is joint in the estate, they must operate together and the giving out of such right or interest by some of them to anyone does not bind the others who do not give their consent hereto. See Yusuf v. Dada (1990) 4 NWLR (pt. 146)657.
Therefore Exhibit D11 relied upon by the Respondent/appellant is worthless and unenforceable. There was also no order of Court made in this case.
I have also examined all the issues for determination raised or formulated by the parties in their respective briefs in this appeal and I entirely agree with the only issue framed by my learned brother Edozie, JSC as being fundamental and germane in this appeal having regards to the grounds of appeal filed in this Court by the appellant. I entirely agree with his reasoning and conclusions reached in the consideration of this sole issue and I adopt same as mine.”
Justice Uwaifo JSC at page 117, 118 held thus:-
“This case raises a very important legal issue upon which I wish to express my opinion. The issue is this; three administrators of a deceased’s estate are in agreement to alienate or deal with his real estate (i.e. landed property) in the course of their administration of the estate but only two signed the conveyance or necessary document, would that be in compliance or not with Section 4 (2) of the Administration of Estates Law Cap.2 Laws of Lagos State of Nigeria, 1973 (the 1973 law) which reads inter alia:
“4(2) whereas respects real estate, there are two or more personal representatives, a conveyance of real estate developing under this part of this law shall not, save as otherwise provided as respects trust estates, be made without concurrence therein of all such representatives or an order of the Court… ”
I shall give only a skeletal facts of this case. The appellant is a property developer. The respondents are the administrators and administratrixes of the estate of M.E. Ojomo (deceased). They replaced the former administrators and administratrixes (i.e. Mr. C.A. Elemodu, Mr. J.A.E. Ojomo (deceased) and Mrs. A. Delano). The estates in question included properties Nos. 42 and 44 Doherty Street, Lagos. The appellant claimed that he discussed with the said former administrators and administratrixes and reached an agreement with them to redevelop the said properties. However, the deed that was later executed was signed by the two administrators. The administratrix did not sign. As already indicated, the former administrators and administratrixes (herein referred to as the administrators as may be convenient) were replaced by the present respondents. The respondents did not want the arrangement to be carried through. I need not state the details of how this came about. It is enough to say that the respondent filed this action claiming special damages of N37,000.00 and general damages of N5,963,000.00 for trespass against the appellant.
The learned trial Judge in his judgment considered Section 4(2) of the 1973 Law applicable to this case. He did this in relation to the deed of lease signed by two out of the three administrators which was admitted as Exhibit D11.
The learned trial Judge referred to the case of Yusuf v. Dada (1990) 4 NWLR (Pt 146) 675. In that case, two messages were quoted from page 466 of Williams Mortimer and Sunnuks Executors Administrators and probate, 16th Edition.
The first was in respect of the “doctrine of notice” and the second, the essence of joint representation when more than one executor or administrator is appointed. Under joint representation, it was stated thus:-
Where more than one executor or administrator is appointed, the joint office is treated as that of an individual person. Each executor represents the estate for all purposes subject only to the statutory exceptions.
They have a joint and entire interest in the joint estate (real or personal) of the testator or intestate which is incapable of being divided. Consequently, if one of two executors or administrators purports to grant or release his interest in the testator’s or intestate’s estate to the other, nothing passes become each was possessed of the whole before.”
I must comment here that what the above means is that in case of multiple executors or administrators, none can purport that the estate is divisible whereof he is in charge of one part and the others their respective parts of the estate. That is why no such executor or administrator can purport to grant or lease his interest in the estate to the other. The representation of the estate is joint; that is to say, executors or administrators must agree in their representation of the estate.”
(Underlining and bold lines for emphasis only)

I refer to paragraph 6 by the appellant’s statement of claim and paragraph II of the PW1’s witness statement on oath thus:-
“That at the time of the sale agreement aforesaid, the Defendants represented to the Plaintiff that they have full authority to dispose of the property by sale and that the signature of any two of the three administrators was sufficient to execute and document in evidence of the sale transaction.” (underlining mine)

This fact was denied by the 1st and 3rd Respondents in paragraphs 5 and 6 of their Joint Statement of Defence. The Respondents further averred that the Appellant having failed to pay the purchase price as agreed by them and having heard that the property had been sold to the 4th Respondent, in his desperate bid to compel the 1st to 3rd Respondents to sell to him at his (Appellant’s) price, went to Hadejia to obtain signatures of the members of the family of late Sheikh Mujaddadi to over-ride that of the 3rd respondent. (page 20 of the Record). This shows that there is no concurrence among the Administrators in the negotiation/signing of EXHIBIT A & B by the 1st and 2nd Respondents.

The Appellant somersaulted in paragraph 6 of his reply to the Joint Statement of Defence at page 333 of the record when he said:-
“The Plaintiff states that Jamilu Sheikh Mujaddadi returned the Deed of Assignment and correct of sale after it was signed by the 1st and 2nd Respondents explaining that as two of the administrators have signed, there was no further need for the 3rd Defendant to sign the document.” (Bold and underlining mine for emphasis only)

It is clear that it was the Appellant himself who aborted the transaction which was already half way.

The agreement between the Appellant and the 1st – 3rd Respondents is that he (Appellant) should take Exhibit A & B to all the Administrators while the 3rd Respondent (Administrator) being the last person to sign the said exhibits would collect the money from him (the Appellant). This fact was not denied or contradicted by the Appellant.

The Appellant relied on a non-administrator to say that since two of the administrators have signed, there is no need for the 3rd administrator to sign. This alone negates the agreement the Appellant had with the administrators.

It is pertinent to state that paragraph 6 of his statement of claim, paragraph 11 of the PW1 Witness Statement on Oath and paragraph 6 of the Appellant’s reply to the Statement of Defence (i.e. the Appellant’s pleadings) are not only contradictory or conflicting, but the Appellant is speaking from both sides of his mouth.

The Appellant in paragraph 6 of his statement claim stated that “it was the 1st – 3rd Respondent who told him that signature of any two of three administrator was sufficient to execute and document in the evidence of the sale transaction”. However, the same Appellant in the paragraph 6 of the reply to the Statement of Defence stated that “Jamilu Sheikh Mujaddadi returned the Deed of Assignment and contract of sale after it was signed by the 1st and 2nd Respondents explaining that two of the administrators have signed, there was no further need for the 3rd Defendant to sign the document.”

The Appellant is blowing hot and cold. He was speaking from both sides of his mouth. This is not allowed. It is settled law that a party cannot blow hot and cold at the same time and or in the same transaction. This principle was adopted by this Court in Ogualaji v A.G. Rivers State (1997) 6 NWLR (Pt. 508) 209 at 222.

A further reiteration by this Court on how administrators of an estate of the deceased must conduct the affairs of the estate in the case of Yusuf v Dada & Ors (1990) 3 NSCC 125 at 144 was followed in the case of Ibrahim v Ojomo (2004) 4 NWLR (pt. 862) 89 at 115-116 per Kalgo JSC thus:-
“I agree with the Court of Appeal that the question of equitable interest in favour of the defendant/appellant did not and could not arise in the circumstance of this case. Also, since the right and interest of the administrators or administratrixes of any estate is joint in the estate, they must operate together and giving out of such right or interest by some of them to anyone does not bind the others who do not give their consent thereto. See Yusuf v. Dada (1990) 4 NWLR (pt. 146) 657. Therefore, Exhibit D11 relied upon by the defendant/appellant is worthless and unenforceable. There was also no order of Court made in this case.”
Uwaifo, JSC, while also concurring with the lead judgment took a strong view on the doctrine of “Joint Representation” and held thus at page 118 paragraphs:
“The learned trial judge referred to the case of Yusuf v. Dada (1990) 4 NWLR (PART 446) 657. In the case, two passages were quoted from page 466 of Williams, Mortimer and Sunnucks Executors Administrator and probate, 16th Edition. The first was in respect of the “doctrine of notice” and the second, the essence of representation when more than one executor or administrator is appointed. Under joint representation, it was stated:
“Where more than one executor or administrator is appointed, the joint office is treated as that of an individual person. Each executor represents the Estate for all purpose subject only to the statutory exceptions. I must comment here that what the above means is that in case of multiple executors or administrators, none can purport that the estate is divisible whereof he is in charge of one part and the others their respective parts of the estate. That is why no such executor or administrator can support to grant or release his interest in the estate to the other. The representation of the estate is joint; that is to say, the executors or administrators MUST agree in their representation of the estate.”
Following the principles above laid down, the signing of the agreement by two out of the three administrators went to no issue and rendered the document worthless hence a valid contract could not ensue thereby. See Yaro v Arewa Constitution Ltd (2007) 16 NWLR (pt. 1063) 333 AT 377-378 & 389.

The Appellant has failed, refused or neglected to show by any shred of evidence to establish his allegation that he paid N100 Million to the 1st – 3rd Respondents. Rather, he (Appellant) in his reply to the Joint Statement of Defence and under cross-examination stated that he made the payment to one Jamilu Sheikh Mujaddadi who was/is neither an Administrator or a Respondent in this case. (Paragraph 4, page 333 of the Record). This fact that he (the Appellant) paid the sum of N100 Million Jamilu Sheikh Mujaddadi was corroborated by PW2 in his testimony under cross-examination when he said:
“The draft was not given to any of the Administrators but it was given to Jamilu”
(see page 158 lines 14-16 of the Record).

This is despite the fact that the Respondents told the Appellant that he (Appellant) should not transact any business with Jamilu and that if he transacts any business with Jamilu, it will not enjoy the backing of the Administrators. (See paragraph 15 of page 42 of the Record). The 3rd Respondent who testified on behalf of the Respondents at the said paragraph 15 page 12 stated thus:
“15. That I specifically told the plaintiff in the presence of Jamilu that the said Jamilu is only a beneficiary and not an Administrator and that any transaction he has with Jamilu does not enjoy the Administrators’ backing.”

The question that arises here is “who is Jamilu?” Jamilu is a beneficiary of the estate, a member of the family of late Sheikh Mujaddadi. For the purpose of clarity, I reproduce the evidence of DW1 under cross-examination by the Appellant’s counsel:
“We did not sell the property to the plaintiff because he did not meet our terms, one of which is the agency fee. Our decision was that N100m be paid for the property and N5m be paid as agency fee. The plaintiff did not meet any condition. The plaintiff agreed to the terms. Jamilu Mujaddadi is one of the biological children of the deceased. At the time of the transaction, Jamilu was a student in the University of Abuja… just like any member of the family, yes, we asked Jamilu to look for a buyer. An agent is someone who acts on behalf of someone to the extent of power conferred in him. For purpose of finding a buyer, Jamilu was one of our agents.” (pages 165-166 of the Record)

The law currently in place is that, in a contract of sale, an agent cannot conclude same. This is to say, an agent cannot conclude contract of sale on behalf of his principal. To this effect, this Court per Ejiwunmi, J.S.C in INCAR NIG. PLC V. BOLEX ENG. NIG (2001) 12 NWLR (PT 728) 648 AT 680- 681 and 681-682 held thus:-
“I think also that it is necessary to add that generally, an agent cannot act beyond the powers given to him by his principal. This was aptly stated in the case of De Bussche v Alt. (1878) 8 CHD (CA) 286 where at 310 per Thesiger U said:
“The first contention raises a question which, as it appears to us, does not present any difficulty. As a general rule, no doubt, the maxim “delegatus non protest delegare” applies so as to prevent an agent from establishing the relationship of principal and agent between his own principal and a third person.”
It is also pertinent to refer to the 8th Edition of Chitty on Contracts (Specific Contracts) Vol.2, where at para 32-015 the learned authors of this work said:-
“…an agent employed by the vendor to find a purchaser is an agent in a limited sense only. He has authority to describe the property and make statements as to its value also as to bind its principal, but he has not implied authority to receive deposit on such terms as to make the prospective vendor liable and no power, without express authority, to conclude a contract for a lease or sale.” See MULLEN V. MILLER (1882) 22 Ch. D. 194 Sorrell V Finch (1977) A.C 728 at 153.
It is his duty to communicate to his principal the best offer received by him at any time before a binding contract for the sale of the property has been actually signed by the principal, unless, of course, he has been informed by his principal that such an offer is not acceptable. It must also be noted that when a vendor merely authorizes a house agent to sell at a stated price, he must not be taken to be authorizing the agent to do more than agree to the price with an intending purchaser. The making of a contract is not part of an estate agent’s business, and, although, on the facts of an individual case, the principal may authorize him to make a contract, such an authorization is not likely to be inferred from vague no or ambiguous languages. (underlining mine).
This decisions in the cases referred to by me are on all fours with the instant case. The evidence of DW1 specifically mentioned that Jamilu is only an agent for the purpose of finding a buyer.
I have copiously quoted those revered jurists on the point to set the record straight on what the principle is and keep all doubts away on any misconception as to the possible overriding powers of an agent and in this case, all the agent was specifically assigned to do was to find a buyer and nothing else. See Ehuwa v Ondo State INEC (2007) All FWLR (pt. 351) 1315 at 1430.

The Appellant has woefully failed to establish that there exists a contract between him and the 1st – 3rd Respondents. On the other hand, the 1st – 3rd respondents who asserted that there is a valid contract between them and the 4th Respondent though not denied or controverted by the Appellant, went further to prove this fact. In fact, this proof is a surplusage.

Surprisingly, the Appellant who had earlier alleged that he paid the sum of N100 million to the 1st-3rd Respondents made a U-turn, somersaulted by saying he paid the said money to one Jamilu.
(See paragraph 9 page 5 and paragraph 6 page 333 of the Record)

The question that poses for an answer is this, “are the 1st to 3rd Respondents bound by any contract entered into by the Appellant and the said Jamilu?” The answer is certainly given in the negative.

It is settled in law on privity of contract and firmly settled that a person is not under any obligation to bear the burden of a contract to which he is not privy, even though the contract is in his favour or benefit. Only a person who is a party to a contract can sue on it. The reason for the enunciation of the principle of privity to a contract is based on consensus ad idem. It is only the contracting parties that know what their enforceable rights and obligations are, and therefore a stranger should not be saddled with the responsibility. Thus, in L.S.D.P.C v N.C. & S.F. LTD (1992) (PT. 244)653 AT 669-670, this Court per Olatawura J.S.C held thus:
“The evidence led justified this observation. Is there any privity of contract between the 1st appellant and the respondent? The answer is No. Privity of contract is a common law doctrine.
Generally only parties as to a contract can enforce the contract. This general principle is stated with great lucidity in Dunlop Pneumatic Tyre C. Ltd v. Selfridges & Co. Ltd. (1915) A-C. 847.”
The Supreme Court followed this principle in Ikpeazu v African Continental Bank Limited (1965) NMLR 374 at 379 and stated thus:-
“What advantage, if any, can the Bank gain from the deed Exhibit D? Can the bank sue on the guarantee? Not being a party to it we are of the view that the bank cannot acquire any rights under the deed. Generally, a contract cannot be enforced by a person who is not a party, even if the contract is made for his benefit and purports to give the right to sue upon it. Tweedle v. Atkinson. This view was supported by the House of Lords in Dunlop Pneumatic Tyre Co. Ltd Selfridge Co. Ltd.
The position is stronger with regard to contracts under seal, unless a person is named as a party to the deed, he cannot maintain upon it. The only exemption to this relates to indentures made about land which was introduced by Section 5 of the Real Property Act 1845 to enable a stronger to a deed to take advantage of a benefit to him in the deed”. See also Negbenebor v. Negbenebo (1971-72) Vol. 7 N.S.C.C 200-20. I, therefore agree with the Court of Appeal that there is no privity of contract and estate between 1st appellant and the respondent.”
This Court again per Muhammad, J.S.C. in UNITED BANK FOR AFRICA PLC V. JARGABA (2007) 11 NWLR (Pt.1045) 247 AT 266-267 held thus:-
“The doctrine of privity of contract is all about the sanctity of contract between the parties to it. It does not extend to others from outside. The doctrine will not apply to a non-party to the contract who may have, unwittingly, been dragged into the contract with a view to becoming a shield or scape goat against the non-performance by one of the parties. Barmani Holdings (Nig.) Ltd is a complete stronger in the contract between the appellants and the respondents. By the Court below, Courts of law do not make orders in vain or vacuum. Court orders affect directly, those persons who have had course to be subjected to the litigation process before the Court either directly or by litigation process before the Court either directly or by necessary extension of such processes. See Eperokun v. University of Lagos (2004) 16 WRN 90; (1986) 7 S.C. 106; (1986) 4 NWLR (pt. 34) 162, Ukejianya v. Uchende (1930) 13 WACA 45, Kokoro-Owo v. Lagos State Government (2004) 24 WRN 61; (2001) FWLR (Pt. 61) 1709; (2001) 11 NWLR (Pt. 723) 237 at page 246 D-E.”
The cases cited above are similar with the instant case. The Appellant having said he paid his money to Jamilu (who is not an Administrator and despite being informed not to transact any business with Jamilu), 1st to 3rd Respondents (Administrators) are not privy to the transaction between the Appellant and the said Jamilu. Thus, they (the 1st to 3rd Respondents) are not bound by the Appellant’s transaction with Jamilu.

It is noted that the Appellant in one breath said he made the payment of N100,000,000.00 to the 1st-3rd Respondents, while in another breath, he said he made the payment to one Jamilu. It is settled law that a party cannot blow hot and cold at the same time and or in the transaction.

It was agreed between the appellant and the 1st to 3rd respondents that all the Administrators will sign the said Exhibits A and B and the 3rd respondent was to collect the money on behalf of the Administrators. Since the appellant did not take Exhibits A and B to the 3rd respondent as he said he could not pay the agreed price any longer, that terminated the offer and brought the intended contract between appellant and the 1st to 3rd respondents to an end.

As at the time of making the contract, the property in the good had not passed to the Appellant until the Appellant had fulfilled the conditions agreed upon. And since he did not fulfil same, there is no contract between the Appellant and the 1st to 3rd Respondents. This Court per Iguh, JSC upholding this principle in AFROTEC TECH. SERVO (NIG.) LTD V. MIA & SONS LTD (2000) 15 NWLR (PT. 692) 730 AT 785 held thus:
“accordingly, where a contract for the sale of specific good, as in the present case, is made subject to a condition which to all intent and purpose suspends the passing of property, the property will not pass to the buyer at the time of the making of the contract, but only when the agreed condition as stipulated by the parties is fulfilled. Until then, the contract takes effect as an agreement to sell, and not an outright absolute sale of the goods.”
With the Appellant’s breach of the material terms for the coming into being of the contract, the 1st to 3rd Respondents were at liberty to have treated the contract as being extinguished and were at liberty to have sold the property (the subject matter of litigation) to the 4th Respondent. This position finds solace in this Court’s decision in BEST (NIGERIA) LTD v. BLACKWOOD HODGE (NIGERIA) LTD. (2011) 5 NWLR (pt. 1239) 95 at 117- 18 where His lordship Fabiyi J.S.C held thus:
“It is clear to me that a contract between parties may be discharged by breach of a fundamental term by any of the parties. There is no gainsaying the point that a breach of contract is committed when a party to the contract without lawful excuse fails, neglects or refuses to perform an obligation he undertook in the contract or incapacitates himself from performing same or in a way back down from carrying out a material term. See Adeoti & Anor v. Ayorinde & Anor (2001) 6 NWLR (pt. 709) 336.
Where a party to a contract is in breach of a material term of same, the breach gives the aggrieved party a lee-way or an excuse for non-performance of its own side of the bargain. Such a party is at liberty to treat the contract as extinguished or at an end. See Yadis (Nig.) Ltd V. G.N.I.C Ltd (2007) 14 NWLR (pt. 1055) 584 at 609.
Parties are bound by the terms agreed to in a contract. If the conditions for the formation of a contract are fulfilled by the parties thereto, they will be bound. It is not the functions of a Court to make a contract for the parties or to rewrite the one which they have made. See UBN v. Ozigi (1994) 3 NWLR (pt. 333) at 404.”

I see no use in going on further as the situation is glaringly clear that the Courts below were right in their findings and decisions which are concurrent and this Court has nothing on which to hinge an interference. The issues are resolved against the appellant and in favour of the Respondents.

The appeal lacks merit and I dismiss it. I abide by the consequential orders made.
Appeal dismissed.

MOHAMMED LAWAL GARBA, J.S.C.: I have read a draft of the lead judgment written by my learned brother, K. M. O. Kekere-Ekun, JSC, in this appeal and completely agree with the views proficiently expressed and the conclusion reached that the Appellant had indeed failed to show circumstances that are special to warrant interference with the concurrent findings of facts made by the lower Courts. In the first instance, there was no credible evidence of the existence of all the essential elements/ingredients of a valid and enforceable contract between the Appellant and the 1st – 3rd Respondents as the Administrators of the Estate of Late Sheikh Mujaddadi.

In the absence of a valid contract of sale of the property in question between the parties with the requisite legal capacity to contract, Exhibit “A” and “B” are worthless. See Mini Lodge Ltd v. Ngei (2009) 18 NWLR (pt. 1173) 254, (2010) All FWLR (506), 1806, Biyo v. Aku (1996) 1 NWLR (pt. 422) 1, Akinyemi v. Odu’a Inv. Co. Ltd. (2012) LPELR-8270 (SC), Omega Bank, Plc. v. O.B.C. Ltd. (2005) 8 NWLR (pt. 547).

In the 2nd instance, there was sufficient and satisfactory evidence from the Respondent to establish the existence of a valid and enforceable contract between the 1st – 3rd Respondents on the one part and the 4th Respondent on the other, for the sale of the property in question.

The decision by the trial Court is therefore amply supported by the credible evidence adduced before it by the parties and the lower Court is right in the circumstances to have affirmed it.

Since the decisions by the lower Courts are not perverse and not reached as a result of wrong application of principles substantive law or procedure to occasion a miscarriage of justice, the appeal is destined to fail. See Mbani v. Bosi (2006) 5 SC (pt. III) 54, (2006) 11 NWLR (pt. 991) 400, Arabambi v. Advance Bev. Ind. Ltd. (2005) 12 SC (pt. 1) 60, ((2005) 9 NWLR (pt. 959) 1, Maiyaki v. State (2008) 7 SC, 128, (2008) 15 NWLR (pt. 1109) 173, Salisu v. Odumade (2010) 6 NWLR (pt. 1190) 228.

I join in dismissing the appeal for want of merit.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: The instant appeal is a natural fall-out of the judgment of the Court of Appeal, Abuja Judicial Division, delivered on February 1, 2013 in appeal no. CA/A/305/2010. By the judgment in question, the Court below affirmed the decision of the trial High Court of the Federal Capital Territory (FCT) Abuja in suit No. FCT/HC/CV/1247/07.

BACKGROUND FACTS
The facts and circumstances surrounding the appeal are not farfetched. The 1st – 3rd Respondents were the Administrators of the Estate of the deceased Sheikh Mujaddadi, who died intestate. Prior to his demise, the deceased was the lawful owner of the property in dispute, located at No. 7A Iyamoye close off Gimbiya Street, Garki II Abuja. The property consists of a 5 bedroom duplex, 2 room-guest chalet and 2 rooms boys quarters.

The three Administrators were appointed in Jigawa State. However, the letter of Administration, initially issued in Jjgawa State, had to be resealed by the Administrators at the FCT High Court, Abuja to cover the properties owned by the deceased.

Sometime in July 2007, some people, including the Appellant and 4th Respondent, indicated interest in the purchase of the property in dispute. The Administrators offered the property in dispute for the principal sum of N100 Million and N5 Million Agency Fee. The Appellant agreed to the terms of the contract, drafted the contract of sale and Deed of Assignment (Exhibits A & B).

However, after the 1st and 2nd had signed Exhibits A and B, the Appellant declined to pay the N100 Million contract sum and the N5 Million Agency Fee. Thus, the Appellant neither furnished the consideration for the contract nor did the 3rd Respondent sign Exhibits A and B.

Then on 12/07/07, the 4th Respondent who had equally expressed interest in the property in dispute accepted the 1st – 3rd Respondents’ offer, furnished the consideration by paying the sum of N100 Million as contract sum and the N5 Million Agency Fee, respectively.

Whereupon, the 4th Respondent having paid the agreed sum, prepared the sale agreement, the Deed of Assignment and Power of Attorney which were duly signed by all the 1st – 3rd Respondents. The copies of the said Sale Agreement, Deed of Assignment, the Power of Attorney, and the cheque issued by the 4th Respondent were admitted as Exhibits C, D, E and H, respectively.

Exhibit H (the cheque issued by the 4th Respondent) was taken by the 1st – 3rd Respondents to the Upper Sharia Court Hadejia, Jigawa State for distribution among the lawful heirs of the deceased. The Upper Sharia Court having determined that the property in dispute had been sold to the 4th Respondent, issued a certificate of purchase and writ of possession (Exhibits F & G) in favour thereof.

Interestingly, the Appellant wrote series of petitions to the Chairman Economic And Financial Crime Commission (EFCC), the commissioner of police FCT, Abuja and the Inspector General of Police (IGP). The said petitions were investigated, found to be false and dismissed by the respective authorities. On August 1, 2007, the Appellant deemed it expedient to institute the instant suit (FCT/HC/CV/1247/07) at the FCT High Court, thereby claiming some declaratory and injunctive reliefs:
1. A declaration that there is a valid and subsisting contract for the sale of the property consisting of a five bedroom duplex with two-room guest chalet and two room boys quarters with the appurtenances covered by Certificate of Occupancy No. 12caw-14c1d-5517r-a082u -10 located at Cadastral Zone A 03, Garki Abuja between the plaintiff and the administrators of the Estate of Sheikh Mujaddadi, the Defendant.
2. An order specific performance to compel the Defendant to execute all and any document to perfect the title of the plaintiff and to do all that is reasonably necessary in the circumstance to give the plaintiff the beneficial ownership of the property described.
3. An order of perpetual injunction restraining the Defendant by themselves, their servants, privies, agents or any person claiming through or under them from selling, or causing to be sold the property aforementioned to any other person or persons howsoever and in whatsoever manner.

The parties having filed and exchanged their respective pleadings, the suit proceeded to trial. At the end of which, the trial High Court delivered the Judgment, thereof, to the conclusive effect:
Earlier in this judgment, I held that Exhibits A and B are void, worthless and unenforceable. These exhibits i.e. Exhibits A and B are the substratum of the plaintiff case. And having held that the documents are void, worthless and unenforceable, it would be proper at this stage to hold that the subsequent sale of the property in dispute to the 4th defendant is valid in law. More so for the fact that Exhibits C, D and E which are the sale agreement, Deed of Assignment and Power of Attorney executed by all the three administrators in favour of the 4th defendant are valid in law. There is therefore no two equal grands of the same property from the same grantor. The first grant is void for not being executed by the three administrators but two only. While the second grand is valid having been executed by all the three administrators.
In conclusion, I hold that the plaintiff had failed to discharge the onus placed on him by the law and therefore he is not entitled to the reliefs sought.
Accordingly, the plaintiff suit is dismissed.

Not unnaturally, the Appellant was not satisfied with the judgment of the trial FCT High Court. Thus, he launched an appeal to the Court below. By the judgment thereof, delivered on February 1, 2013, the Court below dismissed the Appellant’s appeal to the conclusive effect:
In the final analysis, this appeal lacks merit in toto and it fails. It is dismissed. The judgment of the High Court of the Federal Capital Territory Abuja, delivered on the 29th of March, 2010, in Suit No. FCT/HC/CV/1247/07 is hereby affirmed. N30,000 costs to the Respondents against the Appellant.

Not unexpectedly, the Appellant was far from being satisfied with the judgment of the Court below. Thus, the instant appeal.

On September 2021, when the instant appeal at long last came up for heaving, the learned counsel were accorded the opportunity to address this Court and accordingly adopt the far-reaching submissions contained in their respective briefs of argument. Most particularly, the Appellant formulated four issues (not from two issues) at page 3 of the said brief thereof:
1. Whether the lower Court property construed Exhibit A and B (distilled from grounds 1 and 2 of the Amended Notice of Appeal).
2. Whether the lower Court’s decision was not perverse (distilled from grounds 3 and 4 of the Amended Notice of Appeal).
3. Whether the lower Court was right to deem paragraphs 10 and 11 of the Respondents’ Amended Statement of Defence as admitted on the ground that the averments were not controverted by the Appellant (distilled from ground 5 the Amended Notice of Appeal)
4. Whether the agency fee 5% was a binding term of the contract of sale to the Appellant when there was no agent in the transaction and the contract never mentioned an agency fee (distilled from ground 6 of the Amended Notice of Appeal).

Contrariwise, the Respondents deemed it expedient to distil only two issues thus:
1. Whether the learned Justices of the Court below were right when their Lordships held that there is no enforceable contract between the Appellant and the 1st – 3rd Respondents. (Distilled from grounds 2, 3 and 4 of the Notice and Ground of Appeal).
2. Whether the Court below was right when it affirmed the judgment of the trial Court on finding of facts. (Distilled from ground 1 of the Ground of Appeal).

Having critically, albeit dispassionately, considered the records of appeal vis-a-vis the submissions of the learned counsel contained in their respective briefs of argument, I have deemed it expedient to adopt the Appellant’s four issues for the determination of the appeal, anon.

ISSUE NO. 1
The issue no. 1, as copiously alluded to above, raises the question of whether the Court below properly construed Exhibits A and B. The issue is distilled from grounds 1 and 2 of the Amended Notice of Appeal, deemed properly filed and served on 20/01/2021.
ISSUE NO. 2
The issue no. 2, on the other hand, raises the question of whether or not the decision of the Court below was perverse. The issue is distilled from grounds 3 and 4 of the Amended Notice of Appeal.

In my considered view, the Respondents’ issue no. 1 can conveniently be subsumed in both issues 1 & 2 of the Appellant.

Instructively, in the course of the suit, the Appellant deemed it expedient to call two witnesses, himself inclusive, and tendered two documents, which were both admitted by the trial Court as Exhibits A & B. On the other hand, the Respondents called one witness who testified as DW1 and tendered a total of six documents admitted as Exhibits C-H:
i. EXHIBIT C: The sale agreement between the 1st-3rd Respondents and 4th Respondent.

ii. EXHIBIT D – The Deed of Assignment signed by the 1st- 3rd Respondents and 4th Respondent.
iii. EXHIBIT E – The Power of Attorney signed by the 1st – 3rd Respondents and the 4th Respondent regarding the property in dispute.
iv. EXHIBIT F – The Application for consent of the Minister of the Federal Capital Territory (FCT) to assign the property to the 4th Respondent.
v. EXHIBIT G – The writ of possession, certificate of purchase issued to the 4th Respondent by the Upper Sharia Court, Hadejia, Jigawa State, and the letter to Jamilu by the said Court.
vi. EXHIBIT H- The Oceanic Bank Cheque, issue to the 1st – 3rd Respondents by the 4th Respondent.

The Appellant’s statement of claim spans a total of 17 paragraphs (pages 4 – 7 of the Record). The statement of PW1 (Appellant) under Oath, is contained at pages 11-13 of the Record.

Contrariwise, the Respondents’ Amended Statement of Defence is contained at pages 19-27 of the record. The statements of the Respondents’ witnesses under oath are contained at pages 30-54 of the record.

In the vexed judgment thereof, the trial Court held to the conclusive effect: “Earlier in this judgment, I held that Exhibits A and B are void, worthless and unenforceable. These exhibits i.e Exhibits A and B are the substratum of the plaintiff case. And having held that the documents are void, worthless and unenforceable, it would be proper at this stage to hold that the subsequent sale of the property in dispute to the 4th defendant is valid in law.”

The justification or basis for the above finding of the trial Court may not be farfetched. In the course of the judgment, the trial Court made some salient findings of facts to the following effect:
(1) The administrators offered the property subject matter of this suit at and in addition the buyer is to pay 5% as agency fee.
(2) The plaintiff paid N100m to Jamilu Sheikh Mujaddadi in his capacity as agent of the administrators but without 5% agency fee.
(3) Only two administrators signed Exhibits A and B that is the contract of sale agreement and the Deed of Assignment respectively in favour of the plaintiff.
(4) The 4th defendant paid N10 Million to the 1st defendant as administrator of the estate. In addition, he paid 5% agency fee in cash.
(5) The three administrators signed Exhibits C, D and E i.e. The sale agreement, deed of assignment and power of attorney respectively in favour of the 4th defendant.

Most remarkably, the term contract denotes an agreement between two or more parties, thereby creating obligations that are capable of being enforced or otherwise legally recognizable. Jurisprudentially, the term contract is characterized by three distinct factors: (i) The series of operative acts by the respective parties, thereby resulting in legal relations; (ii) The physical document executed by the parties as the [ever]lasting evidence of putting in to effect the operative acts vis-a-vis fact; and (iii) The legal relations resulting from the operative acts, consisting of rights in personam and the corresponding duties or obligations, powers, privileges, immunities, et al.
I think, it was Samuel Williston, who aptly postulated that-
“A contract is a promise, or a sit of promises, for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.”
See A TREATISE ON THE LAW OF CONTRACT, edited by Anhur L. Corbin 3rd American Ed. 1919, copiously alluded to in BLACK’S LAW DICTIONARY, 11th Edition, 2019.
Colloquially, the term contract is equally used by lay persons and lawyers alike to denote a document in which the terms of a contract are written:
Use of the word in this sense is by no means improper so long as it is clearly understood that rules of law utilizing the concept contract rarely refer to the writing itself. Usually, the reference is to the agreement, the writing being merely a memorial of the agreement.
See JOHN D. CALAMARI & J. M. PERILLO: THE LAW OF CONTRACTS 4th Edition 1998 at ….
In the case of STURGES VS. CROWINSHIELD 17 US (4 Wheat) 122,143 (1819), it was held by the US apex, Court:
“A contract is an agreement in which a party undertakes to do or not to do a particular thing.”
Indeed, the term contract is varied and ubiquitous: A bilateral contract, in which each party undertakes a performance, a contract in which the parties’ obligation themselves reciprocally, so that the obligation of one party is correlative to the others’ obligation; reciprocal contract; Synallagmatic contract, et al. According to Atiyah:
“In a bilateral contract a promise, or set of promises on one side, is exchanged for a promise or a set of promises on the other side. In a unilateral contract, on the other hand, a promise on one side is exchanged for an act (or a forbearance) on the other side. Typical examples of bilateral contracts are contracts of sale, the buyer promising to pay the price and the seller promising to deliver the goods. A typical example of a unilateral contract is a promise of a reward for the finding of the property.”
See P.S. Atiyah: AN INTRODUCTION TO THE LAW OF CONTRACT 3rd Edition, 1981 at 32.

In the present case, the contract between the parties is a typical example of a mutual contract within the purview of Atiyah’s definition copiously alluded to above. Thus, for the contract to be validly made or entered into, there must be: (i) offer; (ii) Acceptance; (iii) consideration; (iv) Intention to create legal obligation (consensus ad idem); and (v) Capacity to enter in to contract. All the foregoing fundamental elements (ingredients) must be present before there can be a valid contract in law. Thus, if any of these five elements (ingredients) is lacking, the contract is vitiated, null and void ab initio. See BEST (NIG) LTD VS. BH (NIG) LTD (2011) 5 NWLR (pt. 1239) 95, ODUTOLA VS. PAPERSACK (NIG) LTD (2006) 18 NWLR (pt. 1012) 470, ORIENT BANK (NIG) PLC VS. BILANTE INTL LTD (1997) pt. 515) 37, SGB (NIG) LTD VS. SAFA STEEL AND CHEMICAL MANUFACTURING LTD (1998) 5 NWLR (pt. 548) 168 AND PTI VS. UWAMU (2001) 5 NWLR (pt. 705) 112.

Firstly, with particular regard to the first element or ingredient of contract- ‘offer’, there is no doubt at all, and parties are truly ad idem, as aptly found by the trial Court:
“(1) The administrators offered the property subject matter of this suit at N100m and in addition the buyer is to pay 5% as agency fee.”
See page 218 of Volume 1 of the Records.

Secondly, regarding the second element or ingredient- Acceptance, the pleadings, evidence vis-a-vis the findings of the trial Court on record are to the effect, that the Appellant paid only N100 million to Jamilu Sheikh Mujaddadi but declined to pay the 5% (N5m) Agency Fee. Thus, acceptance as an elementary precondition to the contract has not been fulfilled by the Appellant. Thereby warranting one of the three Administrators (3rd Respondent) to decline to sign Exhibits A and B i.e the contract of Sale Agreement and the Deed of Assignment respectively.

What then is the consequence of the failure of one of the three Administrators to sign the contract agreement? In my considered view, the answer to that fundamental question is not far to seek.

The settled doctrine is that where more than one administrator or executor is appointed to administer the estate of a deceased person, as in the instant case, the point office should be treated as that of an individual person. Thus, each administrator or executor represents the estate for all intent and purposes subject only to the statutory exceptions thereto. All the administrators (executors) ought to be deemed to have a joint and inclusive interest in the entire estate, which is incapable of being divided. And in the event of demise of any of the administrators, such interest vests in the survivor without any new grant by the Court. As aptly reiterated by this Court in a plethora of remarkable authorities:
Consequently, if one or two executors or administers purports to grant or release his interest in the testator’s or intestate’s estate to the other, nothing passes because each was possessed of the whole before. Similarly, the act of one in possessing himself of the effects is the act of the others, so as to entitle them to a joint interest in possession and a joint right of action if needed.
See YUSUF VS. DADA (1990) 3 NSCC 125 per Agbaje, JSC at 144 lines 1-14, IBRAHIM VS. OJOMO (2004) 4 NWLR (pt. 862) 89 per Katsina-Alu, JSC (as he then was) at 115-116 paragraphs H- G; Uwaifo, JSC at 117-118 paragraphs C- H; et al.
What’s more, the Respondents vide paragraphs 5 and 6 of their Joint Statement of Defence, have vehemently denied paragraph 11 of the Appellant’s (PW1’s) Statement on oath, to the effect that they allegedly represented thereto they have full authority to dispose of the property by sale and –
“That the signatures of any two of the three administrators was sufficient to execute and document in evidence of the sale transaction.”
Undoubtedly, the question of equitable interest cannot, in the circumstances of the present case be resolved in favour of the Appellant. The reason being that the right and interest of the Administrators of the estate of the deceased person, or any estate for that matter, is by nature jointly vested in the estate. Thus, the administrators have an onerous responsibility, duty, and obligation to operate together without any dissent, and giving out of such right or interest by some of them to any one does not bind the others who decline to consent thereto. See YUSUF VS. DADA (supra) 657and AND IBRAHIM VS. OJOMO (supra) per Kalgo, JSC.

In the circumstances, the first and second issues ought to be, and are hereby resolved against the Appellant.

ISSUE NO. 3
The third issue raises the question of whether the Court below was right to deem paragraphs 10 and 11 of the Respondents’ Amended Statement of Defence as admitted, on the ground that the averments were not controverted by the appellant. The issue is distilled from ground 5 of the amended Notice of Appeal. The Respondents have not deemed it expedient to respond to this third issue of the Appellant or ground 5 of the notice of appeal.

As copiously alluded to above, the Appellant’s third issue has been argued at pages 13-17 of the brief, to the conclusive effect that the trial Court having dismissed the 4th Respondent’s counter-claim for the validation of his contract of purchase of the property in dispute, which decision was not appealed, the Court below was wrong to grant such a relief thereto in its judgment. That the doctrine of res judicata applied to the decision of the Court below in question.

By the Amended Statement of Defence and counter-claim thereof, the 4th Respondent (4th Defendant) counter-claimed against the Appellant (plaintiff) thus:
COUNTER-CLAIM BY THE 4TH DEFENDANT
1. The 4th Defendant repeats paragraphs 1 – 33 of the Statement of Defence and counter-claim as follows: –
(a) A declaration validating the sale of the property, consisting of a five-bedroom duplex with two-room guest house challet and two boys-quarters located at Cadastral Zone Ao3-14cld-55f7r-a082u-10 between the 1st – 3rd Defendants and the 4th Defendant.
(b) N20,000,000.00 (Twenty Million Naira only) as damages for trespass.
(c) An order of the Hon. Court directing the Plaintiff to vacate the premises/property and deliver up possession of the property, consisting of a five-bedroom duplex with two-room quest house chalet and two hops-quarters located at Cadastral Zone A03, Garki, Abuja with Certificate of Occupancy No. 12 caw-14cld-55f7r-a082u-10 to the 1st – 3rd Defendants. 4th Defendant being the bonafide purchaser of the said property
(d) An order of perpetual injunction restraining the plaintiff and or his agents, privies or whosoever from trespassing or dealing with the property in any way.
2. The 4th Defendant purchase the property for personal use as accommodation for himself and his family members. The Defendant has being deprived of the use of the said property by the plaintiff as a result of which he has been staying in the hotel with his family members thereby causing loss to the 4th Defendant. The 4th Defendant shall rely on the receipts and other documentary evidence for his hotel bills at the hearing of this case.
3. Cost of the action.
Amended 30th day of September, 2009 pursuant to order of the Hon. Court dated the 30th September, 2009.

However, the 4th Respondent’s learned counsel, J.J Usman Esq., filed a Notice of Discontinuance, dated 31/03/2011, thereby urging upon the Court below:
1. Leave to apply to discontinuance 4th Defendant, Applicant’s counter-claim.
2. AN ORDER of the Hon. Court discontinuing 4th Defendant Applicant’s counter-claim.

The said Notice of Discontinuance was predicated upon two grounds:
1. “By the judgment of Court delivered on 29th March, 2010, the counter-claim has become an academic exercise.
2. The counter-claimant/Applicant wants to discontinue his counter-claim.”

Whereupon, on 21/04/2007, the trial Court delivered a ruling to the conclusive effect:
“While the Court gave judgment in the substantive suit on 29/3/2010. It is apt to mention that the plaintiff/respondents are yet to file a defence to the counter-claim. Then the question to ask at this stage is what should be the proper order to make in the circumstance. The whole issue lies at the discretion of the Court. And like all matters of discretion, the Court must exercise its discretion judicially and judiciously. The Court must consider the peculiar facts and circumstance of every given case. Upon a careful consideration of this application in line with the attendant circumstances of the case, it is my humble view which I so hold that the appropriate order to make is that of dismissal and accordingly, the application for discontinuance is granted, the counter-claim is dismissed.
As for the issue of cost the plaintiff/respondent not having filed a defence to the counter-claim, I see no justification for the award of cost.
Accordingly cost is refused.”

What then is the Appellant’s grouse regarding the withdrawal of the 4th Respondent’s counter-claim and the eventual dismissal thereof by the Court below on 21/4/2010? It’s simply this:
[T]hat the trial Court having dismissed the 4th Respondent’s claim for validation of the contract of purchase of the property, which decision was not appealed, the lower Court was wrong to grant such a relief to the 4th Respondent in its judgment. The doctrine of res judicata applied to the decision of the trial Court.”

As alluded to above, the vexed judgment of the trial Court, the subject of the instant appeal, was delivered on 29/03/2010 and duly contained at pages 194 – 225 of Volume 1 of the Records. However, the ruling regarding the discontinuance and dismissal of the 4th Respondent’s counter-claim (almost 4 weeks after the judgment was delivered), is contained at pages 191 – 193 of the said Volume 1 of the Records.

At page 219 of the Volume 1 of the Record, the trial Court has made it categorically clear, that the issue raised by the Appellant (plaintiff) was appropriate for the determination of the suit:
“Whether having regard to the peculiar facts and circumstances of this matter, there is a valid and binding contract for the sale of the property in dispute between the plaintiff and the 1st – 3rd defendants.”

The Court equally at the said page 219, alluded to the fact that the Appellant’s (plaintiffs) counsel had raised some germane questions to be answered for effective resolution of the (sole) issue for determination. There were 5 of such questions. Which were dealt with seriatim. The questions:
1. Is it a correct statement of the law that Exhibits A and B are void merely because only two of the three administrators of the estate signed or executed.
2. Did the defendants appoint and through an agent Jamilu Mujaddadi for the purpose of the sale of the property?
3. Was the payment of 5% agency fee a condition for the sale of the property?
4. Is there any clear evidence that the plaintiff made payment for the property in dispute?
5. Was the purported subsequent sale of the property in dispute to the 4th defendant valid in law?

The trial Court dutifully addressed each of those 5 questions raised by the Appellant’s (plaintiff) counsel as a corollary to determining the sole issue in question.

Having resolved each of the questions 1 – 4 raised by the Appellant against him, the Court proceeded at pages 225 226 of Volume 1 of the Records to determine question no. 5:
“Was the purported subsequent sale of the property in dispute to the 4th defendant valid in law?”
The trial Court proceeded to hold thus:
“Earlier in this judgment, I held that Exhibits A and B are void, worthless and unenforceable. These exhibits i.e. Exhibits A and B are the substratum of the plaintiff case. And having held that the documents are void, worthless and unenforceable, it would be proper at this stage to hold that the subsequent sale of the property in dispute to the 4th defendant is valid in law. More so for the fact that Exhibits C, D and E which are the sale agreement, Deed of Assignment and Power of Attorney executed by all the three administrators in favour of the 4th defendant are valid in law. There is therefore no two equal grants for the same property from the same grantor. The first grant is void for not being executed by the three administrators but only two. While the second grant is valid having been executed by all the three administrators.
In conclusion, I hold that the plaintiff had failed to discharge the onus placed on him by the law and therefore he is not entitled to the reliefs sought.”

I am not in any doubt, that the foregoing findings of the trial Court are cogent, unassailable, and duly backed up by the pleadings and evidence on record. And I so hold. The foregoing apt conclusive findings of the Court below could not, by any stretch of imagination, be said to have flowed from the well of the 4th Respondent’s (4th Defendant’s) counter-claim which was withdrawn (by the 4th Respondent), and accordingly dismissed by the trial Court barely 4 weeks after the vexed judgment was delivered on 29/03/2010.

In the circumstances, the 3rd issue ought to be, and it’s hereby resolved against the Appellant.

ISSUE NO. 4
The last but not the least, is the fourth issue which raises the question of whether the 5% Agency Fee was a binding term of the contract of sale to the Appellant, when there was no agent in the transaction and the contract never mentioned an agency fee. The fourth issue is distilled from ground 6 of the amended notice of appeal.

Invariably, the term agency denotes a relationship that arises when a person (a principal) manifests consent to another (an agent) that he (the agent) would act on the principal’s behalf, subject to the principal’s control, and the agent equally manifests consent to do so. An agency is varied and ubiquitous; actual agency; agency by estoppel; agency by necessity; agency by operation of law, et al. See BLACK’S LAW DICTIONARY 11th Edition 2019 at 76 – 77.
In the case of DELTA STEEL (NIG) LTD VS. AMERICAN COMPUTER TECHNOLOGY (1999) 4 NWLR (pt. 597) 53, it was aptly held by this Court:
“Agency in law connotes the relationship which exists where one has authority or capacity to create a legal relationship between a person, the position of principal and third parties. Thus agency can arise impliedly from the nature and condition of the parties or from the circumstances of the case. Generally, a relationship of agency exists in law when one person called the ‘agent’ is vested with authority to act on behalf of another called ‘the principal’ and he consents to act. However, whether that relationship exists in any given situation depends not on the precise terminology used by the parties to describe their relationship but on the true nature of the agreement or the exact circumstances of the relationship between the alleged principal and the alleged agent.”
See also OKWEJIMINOR VS. GBAKEJI (2008) 5 NWLR (pt. 1079) 172 at 223 – 224 paragraphs G – A, JAMES VS. MIDMOTORS (NIG) CO. LTD (1978) 11 -12 SC 31, BAMGBOYE VS. UNIVERSITY OF ILORIN (1991) 8 NWLR (pt. 207) 415.

Under the law of contract, the distinction between express contracts, as opposed to those implied by conduct of the respective parties, the fundamental in each case is the nature of the terms of the contract. In LESTRANGE VS. F GRAUCOB LTD (1934) 2 KB 394, it was aptly postulated by Atkens, LJ; thus:
“87… Express contracts (as opposed to those implied from conduct) can be oral, in writing or a mixture of both. Where the terms are put in writing by the parties and it is not alleged that there are any additional oral terms to it, then those written terms will, at least prima facie represent the whole of the parties’ agreement. Ordinarily, the parties are bound by those terms where a party has signed the contract… 88. Once it is established that the written terms of the contract were agreed, it is not possible to imply terms into a contract that are inconsistent with its express terms. The only way it can be argued that a contract contains a term which is inconsistent with one of its express terms is to allege that the written terms do not accurately reflect the true agreement of the parties.”
See also AUTOCLENZ LTD VS. BELCHER (2011) UKSC) per Lord Clarke, JSC at 16 – 17 paragraphs F – D.

In the instant case, by the Amended statement of defence thereof, the Respondents have averred in paragraphs 2, 3 and 9 to the effect that:
2. The Defendants deny paragraph 5 of the Statement of Claim. In answer to the said paragraph, the Defendants aver that there was an intention by the 1st – 3rd Defendants to sell the property, (subject matter of this litigation) consisting of a five-bedroom duplex with two-room guest house chalet and two hoys-quarters located at Cadastral Zone A03, Garki, Abuja with Certificate of Occupancy No.12 caw-14cld-55f7r- a082u-10 to any buyer who can pay N100 Million and the said will pay agency fie excluding the said sum.
3. The 1st – 3rd Defendants further aver that the 4th Defendant, the Plaintiff and other people had indicated interest in the buying of the said property.
9. The 1st – 3rd Defendants further aver that the plaintiff did not pay the said N100 Million or paid any sum at all to the Defendants as he (the Plaintiff) said he cannot pay the said amount and the 5% agency fee.

The Appellant, both in his reply to the Joint Statement of Defence of the 1st – 3rd Respondents (1st – 3rd Defendants) and under cross-examination stated that he made payment of N100,000,000 Million to Jamilu Sheikh Mujaddadi. According to the Appellant (PW2) under cross-examination:
“The draft was not given to any of the Administrators but was given to Jamilu.”

Undoubtedly, the Appellant decided to surreptitiously deal with Jamilu Sheikh Mujaddadi despite having been warned by the Respondents. According to the 3rd Respondent who testified on behalf of the 1st-3rd Respondents (paragraph 15 of the statement of oath thereof at page 42 of Volume 1 of the Records):
“15. That I specifically told the plaintiff in the presence of Jamilu that the said Jamilu is only a beneficiary and not an Administrator and that any transaction he has with Jamilu does not enjoy the, Administrators backing.”

What’s more, the DW1 under cross-examination by the Appellant’s counsel had this to say:
“We did not sell to the plaintiff because he did not meet our terms, one of which is the agency fee. Our decision was that N100m be paid for the property and N5m be paid as agency fee. The plaintiff did not meet any condition. The plaintiff agreed to the terms…”

In the circumstances, there is every cogent reason for me to uphold the findings of the Court below, to the conclusive effect that:
“The receipt clauses in Exhibits A and B are therefore non-exclusive. Other evidence was admissible and indeed necessary, to determine the probative value of the exhibits in their entirety.”

In the circumstances, the fourth issue ought to be, and it is hereby resolved against the Appellant.

Hence, against the backdrop of the resolution of all the 4 issues raised by the Appellant against him, I would have no hesitation whatsoever in wholeheartedly concurring with the far-reaching reasoning reached in the judgment, just delivered by my learned brother, the Hon. Justice Kudirat Kekere-Ekun, JSC, to the conclusive effect that the appeal resultantly fails, and it is hereby dismissed by me.

The concurrent judgment of the Court below is therefore hereby upheld by me.
Appeal dismissed.
No order as to costs.

EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the judgment of my learned brother, Lord Justice, KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC. I agree with the reasoning, conclusions, decisions, including the orders therein.

Where an agency is created for the expressed purpose of searching for and securing a prospective purchaser of a property, the agent cannot exceed the scope of his agency to agree on a purchase price with a buyer, receive the purchase price agreed between him and the buyer and prepare the document of conveyance for the seller’s signature. This is so irrespective of the fact that the agent has the original copies of the documents of title to the property. Possession of the original copies of documents of title to the property is no authority to sell the property on behalf of the owner or behind the owner. Without the authority of the owner, such agent cannot negotiate the price and other terms for the sale of the property. A purchaser of property who pays the purchase price of the property to a person whose name is not on the documents of title as owner or as administrator or trustee of the property, does so at his own peril, especially where the purchaser had made no contact or negotiation with the owner or administrators or trustee of the property for the sale of the property. The fact that the agent is one of the heir or beneficiary of the properly administered by administrators appointed by letters of administration does not change his status as agent for the purpose of securing a buyer of the property and cannot negotiate the sale, collect purchase price and prepare the conveyance without the legally recognized written authority of the administrators to do so. In the absence of a legally recognized written authority to sell the property on behalf of the owner, such as a registered power of attorney, payment of the purchase price to the agent, would not bind the owner of the property as to create a binding contract of sale of the property between him and the person who paid such purchase price. So the transactions between Jamilu, as the agent who contacted the 4th respondent to purchase the said property and the payment of the sum of 100 million Naira to him as the purchase price without the concurrence of the three administrators of the property is of no legal effect and does not create a legally binding contract of sale of the property.

The evidence show that there was no agreement between the purchasers and the administrators of the property on the purchase price and that there was agreement that the agency fee for getting a buyer of the property be 5%. Jamilu had agreed with the appellant for the payment of 100 Million Naira to cover the purchase price and 5% agency fee, received the money in bank drafts, prepared a contract of sale of the property (Exhibit A) and a deed of assignment of the property (Exhibit B) for the three administrators to sign. When he took the drafts and the contract of sale and deed of assignment to the administrators, two of them signed and one refused to sign for the reason that the 5% agency fee should be additional to and not part of a 100 Million Naira purchase price. So the appellant’s offer to pay 100 Million Naira inclusive of 5% agency fee as the purchase price was met with a counter-offer that the 5% agency fee be additional to the 100 Million Naira purchase price. So the appellant’s offer was not accepted by all the administrators of the property. Therefore, there was no contract of sale of the property between the administrators of the property and the appellant. The payment of the purchase price to the agent on the basis of an offer that was yet to be accepted by the owner would not create a valid contract. As it is no contract to sell the property to the appellant was made by the administrators of the estate.

This appeal is dismissed.

Appearances:

PAUL EROKORO, SAN, WITH HIM, O. ITUEN, ESQ., G. OBETEN, ESQ. and U. ONYEWE, ESQ. For Appellant(s)

J.J. USMAN, ESQ., WITH HIM, EKO EJEMBI EKO, H.l. HASSAN, ESQ., A.O.F. PHILLIP, ESQ. AND J.A. SAMBO, ESQ. For Respondent(s)