HON. ESEME SUNDAY EYIBOH v. DAHIRU SHEIKH MUJADDADI & ORS.
(2013)LCN/6695(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of February, 2013
CA/A/305/2010
Before Their Lordships
HUSSEIN MUKHTARJustice of The Court of Appeal of Nigeria
ABUBAKAR DATTI YAHAYAJustice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODOJustice of The Court of Appeal of Nigeria
Between
HON. ESEME SUNDAY EYIBOHAppellant(s)
AND
1. DAHIRU SHEIKH MUJADDADI
2. AISHA SHEIK MUJADDADI
3. TAHIR IDRIS HADEJIA
(SUED AS THE ADMINISTRATORS OF THE ESTATE OF SHEIKH MUJADDADI)
4. ALH. HASSAN MUHAMMAD GUSAURespondent(s)
RATIO
THE ELEMENTS OF VALID CONTRACT
This Court, per Aboki JCA in AMANA SUITS HOTEL LTD VS. P.D.P (2007) 6 NWLR (Pt. 1031) 453 at 476 held –
“The elements of a valid contract are five and these are offer, acceptance consideration, intention to create legal relationship and capacity to contract See Petroleum Training Institute vs. Brown Uwanu (2001) FWLR (Pt. 70) 1567 at 1578; (2001) 5 NWLR (Pt. 705) 112; Obaike vs. Bilante International Ltd (1997) 8 NWLR (Pt. 515) 371; Okubule vs. Oyagbola (1990) 4 NWLR (Pt. 147) page 723.” PER YAHAYA, J.C.A.
WHETHER OR NOT AN AGENT HAS THE POWER TO CONCLUDE A SALE AND BIND HIS PRINCIPAL
The law is clear and it is, that an agent, on a contract of sale, does not have the power to conclude the sale and bind his principal, beyond the power donated to him. He only has power to find a buyer and describe the property but he has no authority to receive a deposit and bind his principal. He cannot conclude a contract of sale and he cannot grant a lease. See INCAR NIG PLC VS. BOLEX (Supra) at 680 -682. PER YAHAYA, J.C.A.
WHETHER OR NOT ALL THE ELEMENTS OF A CONTRACT MUST CO-EXIST BEFORE IT CAN BE VALIDLY ESTABLISHED
This is because in law, all the elements of a contract, must co-exist, before its validity can be established.
Another element of a valid contract, is the capacity to enter into a contract.
The property in issue was vested in the three Administrators jointly as a whole, by law, and they must operate together. In IBRAHIM VS. OJOMO (Supra) at 115 -116 the Supreme Court per Katsina-Alu JSC, as he then was, held in similar circumstances, that –
“…..the right and interest of the administrators/administratrixes 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 any one does not bind the others who did not give their consent hereto.”
Hon. Justice Uwaifor JSC, added his voice in the above mentioned case at pages 117 -118 when he held –
“…..The representation of the estate is joint; that is to say, executors or administrators must agree in their representation of the estate.” PER YAHAYA, J.C.A.
ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment): This appeal has emanated from the judgment of the High Court of the Federal Capital Territory, delivered on the 29th of March, 2010, wherein it dismissed the Suit filed by the appellant, as plaintiff, against the respondents as defendants.
The 1st -3rd respondents are the Administrators of the Estate of late Sheikh Mujaddadi, having been issued with Letters of Administration. They put up a property, known as No. 7A Iyamoye Close, off Gimbiya street, Garki II, Abuja (the property in question) for sale. The Appellant indicated interest in purchasing the property. The selling price was put at N100 million Naira and N5 million as agency fee. A contract of sale (Exhibit A) and a Deed of Assignment (Exhibit B) were drawn up. Only the 1st and 2nd respondents signed these documents as the 3rd respondent did not sign.
The 1st -3rd respondents later sold the property in question, to the 4th respondent who paid the purchase price, the 5% agency fee and the relevant documents were executed by the 1st -3rd respondents.
The appellant was aggrieved by this and he look out a Writ of Summons against the 1st -3rd respondents and the 4th respondent was later joined as the 4th respondent. The Appellant claimed three reliefs thus –
(1) A declaration that there is a valid and subsisting contract for the sale of the property …… between the Appellant and the Administrators of Estate of Sheikh Mujaddadi, the Respondent (sic).
(2) An order of specific performance to compel the Respondent (sic) to execute all and any document to perfect the title of the Appellant and to do all that is reasonably necessary in the circumstance to give the Appellant beneficial ownership of the property described.
(3) An order of perpetual injunction restraining the Respondents 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 exchanged their pleadings and the matter went to trial, at the end of which the case of the appellant was dismissed. Aggrieved by that decision, the appellant filed a Notice of Appeal with ten grounds of appeal. From these ten grounds, two Issues for determination were distilled in the Appellant’s brief, settled by F. R. Onoja, on the 12/8/10. They are: –
(1) Whether the learned trial judge was right when his Lordship held that Exhibits A and B admitted in evidence in proof of the plaintiff’s claim are void merely because they were not signed by all of the administrators of the Estate (the 1st -3rd Respondents).
(2) Whether the learned trial judge properly evaluated the evidence and came to the right decision.
The respondents also identified two Issues for determination in their joint brief, settled by J. J. Usman, as follows: –
(1) Whether the learned trial judge was right when he held that there is no contract between the Appellant and the 1st -3rd Respondents and whether the learned trial judge was right when he held that there is a contract between the 1st -3rd Respondent and the 4th Respondent.
(2) Whether the learned trial judge was right when he held that the Appellant has not proved his case to entitle him to the reliefs sought before the court below.
Taking into consideration the grounds of appeal filed, the two Issues identified by the respondents seem to me to be more apt. I shall therefore utilise them in determining this appeal.
ISSUE NO. 1
Whether the learned trial judge was right when he held that there is no contract between the Appellant and the 1st -3rd respondents and whether the learned trial judge was right when he held that there is a contract between the 1st -3rd respondent and the 4th respondent.
Learned counsel for the appellant referred to the decision of the trial judge at page 222 of the record, where he held that Exhibits A and B are worthless, unenforceable and void merely because only two out of the three Administrators of the Estate, had signed them. Counsel argued that the decision was based on the decision of the Supreme Court in IBRAHIM VS. OJOMO (2004) 4 NWLR (PT. 862) 89, which he said, decided that once there is a concurrence of all administrators, the fact that a conveyance was not signed by all of them, would not render it void. Counsel therefore argued that the trial judge was wrong as the case of IBRAHIM VS. OJOMO (Supra) did not support his stand.
On the issue of concurrence, counsel submitted that the trial court was wrong when it held that there was no such concurrence amongst all the three Administrators, arguing that the parties were at concensus ad idem when Exhibits A and B were executed, and that the dispute arose subsequently, on the issue of the refusal to pay the 5% agency fees. At any rate, he argued, even if there was no concurrence by all the administrators, the transaction was only voidable at the instance of the administrator that did not sign. EJIGINI VS. EZENWA (2003) 16 NWLR (Pt. 846) 420 and IBRAHIM VS. OJOMO (Supra) were relied upon. Counsel submitted that since the 3rd respondent who failed to sign Exhibit A and B did not file an action to void the said exhibits, the trial judge was wrong to have done so, since such a relief was not sought for. He urged us to resolve the issue in favour of the appellant.
Replying, learned counsel for the respondents, defined contract as a legally binding agreement between persons by which rights are acquired by one party in return for acts or for consideration on the part of the other. He referred to ORIENT BANK (NIG) PLC VS. BICANTE INTERNATIONAL LTD (1997) 8 NWLR (Pt. 515) 37; S.G.B. (NIG) LTD VS. SAFA STEEL AND CHEMICAL MANUFACTURING LTD (1998) 5 NWLR (Pt. 548) 168; DODO VS. SOLANKE (2006) 9 NWLR (Pt. 986) 447 at 468; OMEGA BANK (NIG) PLC VS. O.B.C. LTD (2005) 8 NWLR (Pt. 928) 547 at 583 and AMANA SUITS HOTEL LTD VS. P.D.P. (2007) 6 NWLR (Pt. 1031) 453 at 476. Counsel argued that there was no valid contract between the appellant and the 1st -3rd respondents since the three respondents as Administrators of the Estate must act jointly in one accord and they did not. He placed reliance on YUSUF VS. DADA & 3 ORS (1990) 3 NSCC 125 at 144; IBRAHIM VS. OJOMO (Supra) at 115 -116.
Learned counsel also referred to paragraph 6 of the statement of claim and paragraph 11 of the PW1 Witness Statement on Oath, and compared it with paragraph 6 of the Reply to the Joint Statement of Defence and pointed out that there is a serious contradiction in them. Counsel pointed out other conflicting averments in the pleadings of the appellant (pages 5 and 99 of the record) on payment of the N100,000,000.00 to the 1st -3rd respondents at one point as opposed to another averment showing the said sum was paid to one Jamilu. The appellant should therefore not be heard, he argued, relying on NGIGE VS. OBI (2006) 14 NWLR (Pt. 999) 197 and LONGE VS. F.B.N. PLC (2006) 3 NWLR (Pt. 967) 228 at 265.
Furthermore, learned counsel argued that the trial judge was right when he held that Exhibits A and B are void on the ground that they were not signed by all the Administrators, because the right and interest of the Administrators of the Estate is joint, and so they must operate together. It cannot be divided and so some cannot part with it, without the consent of the others -YUSUF VS. DADA (Supra) at 144 and 118.
Learned counsel also submitted, that the Appellant did not furnish any consideration for the contract and so none exists between him and the 1st -3rd respondents. Counsel referred to paragraph 9 of the statement of claim and paragraph 10 of the Witness Statement on Oath at page 12 of the record, which averred that the appellant paid N100,000,000.00 to the 1st -3rd respondents. The respondents denied same at paragraphs 8, 9, 19, 25 and 31 of the joint Statement of Defence and paragraphs 41, 42, 43, 44, 45, 46, 47, 48, 49, 51 and 56 of the 3rd respondent’s Witness Statement on Oath. The appellant failed to adduce evidence or establish his assertion. Instead, he stated in the Reply to the Statement of Defence, that he made the payment to Jamilu who is not an Administrator of the Estate. He is only an agent to find a buyer and had no authority to conclude a contract of sale on behalf of the Administrators -INCAR NIG PLC VS. BOLEX ENG. (NIG) (2001) 12 NWLR (Pt. 728) 648 at 680 -681. If he collected any moneys from Jamilu, then he should recover from him, as there is no contract between the appellant and the 1st -3rd respondents.
It was the submission of learned counsel to the respondents also, that they had averred at paragraphs 10, 11, 17, 21, 22, 23, 24, 26, 31 and 32 of the Amended Statement of Defence and paragraphs 33, 34, 35, 36, 37, 38, 39, 40, 43, 50, 51, 52, 53, 55, 56, 57 and 58 of the 3rd Respondent’s Witness Statement on Oath, that a valid contract exists between the 1st -3rd respondents and the 4th respondent. They tendered exhibits C. D. E. F and F2. G and H through DW1 (3rd respondent). Counsel argued that the averments and the evidence stand unchallenged and uncontroverted by the appellant, and have established the existence of the contract. He urged us to resolve the Issue in favour of the respondents.
It is crucial to determine whether there was a contract between the appellant and the 1st -3rd respondents. This Court, per Aboki JCA in AMANA SUITS HOTEL LTD VS. P.D.P (2007) 6 NWLR (Pt. 1031) 453 at 476 held –
“The elements of a valid contract are five and these are offer, acceptance consideration, intention to create legal relationship and capacity to contract See Petroleum Training Institute vs. Brown Uwanu (2001) FWLR (Pt. 70) 1567 at 1578; (2001) 5 NWLR (Pt. 705) 112; Obaike vs. Bilante International Ltd (1997) 8 NWLR (Pt. 515) 371; Okubule vs. Oyagbola (1990) 4 NWLR (Pt. 147) page 723.”
It is not controverted, that there was an offer made to the appellant by the 1st -3rd respondents, to buy the house in dispute. There is however, a dispute as to how much it was to be sold for. This leads me to the issue of consideration. At paragraph 9(a) (b) and (c) of the statement of claim (page 5 of the record), the plaintiff averred that he made the agreed payment sum of N100,000,000.00 in “three Bank PHB Managers cheques” “to the defendants.” The defendants in their joint statement of defence, paragraph 8 (page 21 of the record) denied that the agreed purchase price was N100,000,000.00 only. They denied receiving N100,000,000.00 or any money at all from the plaintiff or any one on his behalf in respect of the “sale of the property, the subject matter of this litigation.” In support of the statement of claim, the appellant in his statement of Witness on Oath PW1, at paragraph 10, stated that he made such payment of N100,000,000 to the defendants. For the respondents, they led evidence in support of their amended statement of defence, through 3rd defendant’s statement on Oath at paragraph 42 (page 46 of the record) that the appellant has not made any payment of money in respect of the property in question.
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 Jumilu”!!
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.
Another element of a valid contract, is the capacity to enter into a contract.
The property in issue was vested in the three Administrators jointly as a whole, by law, and they must operate together. In IBRAHIM VS. OJOMO (Supra) at 115 -116 the Supreme Court per Katsina-Alu JSC, as he then was, held in similar circumstances, that –
“…..the right and interest of the administrators/administratrixes 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 any one does not bind the others who did not give their consent hereto.”
Hon. Justice Uwaifor JSC, added his voice in the above mentioned case at pages 117 -118 when he held –
“…..The representation of the estate is joint; that is to say, executors or administrators must agree in their representation of the estate.”
It follows therefore, that for the 1st -3rd respondents to sell the property in question to the appellant or to anyone, they must all agree to do so. One or two of them cannot pretend to do so, without the concurrence of the other, otherwise, he will not be bound. Here, there was no evidence before the court, showing that all the three Administrators had concurred, to sell the property in question to the appellant, at the amount of N100,000,000 only. The evidence believed by the trial court and rightly too, is that they agreed to sell the property at the cost of N100,000,000.00 plus 5% agency fee and when the appellant failed to meet these terms and pay, they sold to another. That is why the 3rd respondent explained in his Witness Statement on Oath and under cross-examination at pages 165 -166 of the record, why he refused to sign the Exhibits A and B, and only the 1st and 2nd respondents signed and even they signed, on the belief that the appellant was going to pay N100,000,000.00 plus 5% agency fee.
One Jamilu was said to be the agent of the 1st -3rd respondents and he signed exhibits A and B and collected the selling price. DW1 under cross-examination said –
“We did not sell the property to the plaintiff because he did not meet our terms, one of which is the agency fee…..Jamilu Mujaddadi is one of the biological children of the deceased…we asked Jamilu to look for a buyer…..for purpose of finding a buyer, Jamilu was one of our agents.”
The law is clear and it is, that an agent, on a contract of sale, does not have the power to conclude the sale and bind his principal, beyond the power donated to him. He only has power to find a buyer and describe the property but he has no authority to receive a deposit and bind his principal. He cannot conclude a contract of sale and he cannot grant a lease. See INCAR NIG PLC VS. BOLEX (Supra) at 680 -682. In the instant appeal, Jamilu was only an agent to find a buyer for the property, as there were also other agents. His limitations were to find a buyer and describe the property, and communicate to the parties. The contract will have to be sealed between the 1st -3rd respondents and the appellant as the person scouted by Jamilu. Jamilu had no authority to conclude the contract or sign it without authority, or represent to the appellant that the signatures of two Administrators could suffice. Therefore, he had no authority to do what he did -signing exhibits A and B, and collect allegedly, the money from the appellant. His doing these things, did not therefore create any valid and binding contract between the 1st -3rd respondents and the appellant.
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 clamed, 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.
Learned counsel for the appellant had submitted that the trial judge was wrong when he voided Exhibits A and B as no relief as such, was sought for. This submission cannot be correct because voiding Exhibits A and B was a necessary consequential relief after he held that there was no valid contract between them. The Exhibits could not therefore, have been enforceable by any of the parties or against any party. The order gave effect to the judgment of the court and was therefore in order -AMAECHI VS. INEC (2008) 5 NWLR (Pt. 1080) 227 and LONA VS. IDAKWO (2003) 11 NWLR (Pt. 830) 53.
As regards the existence of a contract between the 1st -3rd respondents and the 4th respondent, the 1st -3rd respondents averred in their Amended Statement of Defence, paragraphs 10 and 11, thus –
10 The 1st to 3rd Defendants aver that based on the above, the 4th Defendant who had also indicated interest in the purchase of the said property and who agreed to pay the said N100 million and the 5% agency fee, paid the sum of N100 million on the 12th July 2007, through an Oceanic Bank Draft and N5 million cash (agency fee) which was accepted by Dahiru Mujaddadi (1st Defendant) on behalf of the Administrators. A photocopy of this cheque/Draft is pleaded and the Defendants shall rely on it at the trial.
11. The 1st -3rd Defendants aver that following the sale of the said property to the 4th Defendant, the proceeds was distributed to all the heirs of the late Sheikh Mujaddadi by Upper Sharia Court, Hadejia, Jigawa State…..”
These averments were not denied or controverted in any way by the appellant. The effect is that they are facts which are deemed admitted by the appellant, and it is trite, that what is admitted, requires no further proof -AGBANELO VS. UNION BANK OF NIGERIA LTD (2000) 4 S.C (Pt. 1) 233. However, the 1st -3rd respondents still went ahead to file Witnesses Statement on Oath of Dahiru Sheikh Mujaddadi, one of the Administrators (page 390 of the record) and Tahir Idris Hadejia also one of the Administrators (page 40 of the record), in proof of the averments of the Amended Statement of Defence. See paragraphs 33, 34 and 35 of page 44 of the record. This Tahir Idris Hadejia gave evidence (page 184 of the supplementary Record) and tendered documents in respect of the sale of the property in question, to the 4th respondent as he deposed to in his statement on oath at paragraph 35. From all the above, it is clear as daylight, that the 1st-3rd respondents, had sold the property in question to the 4th respondent who had paid the agreed price. The trial judge was therefore right, when he held that there is a contract of the sale of the property in question between the 1st -3rd respondents and the 4th respondent. Issue No. 1 is thus resolved in favour of the respondents and against the appellant.
ISSUE NO. 2
Whether the learned trial judge was right when he held that the appellant has not proved his case to entitle him to the reliefs sought before the court below.
Learned counsel for the appellant submitted that the appellant relied on Exhibits A and B in proof of his claims and that once parties reduce terms of their agreement into writing, the court is only allowed to look at the documents and cannot admit any extrinsic evidence to add to vary or replace the contents of the document -CHRISTBEN GROUP LTD VS. ONI (2008) 11 NWLR (Pt. 1097) 84 at 111. Counsel argued that the trial judge had failed to consider Exhibits A and B, when it is not disputed that the 1st and 2nd respondents executed the documents on behalf of the Estate of the late Sheikh Mujaddadi. These two Administrators he said, did not raise the plea of non est factum or that they executed the conveyance under duress or mistake of fact. Counsel submitted that there was a complete agreement on the essential terms namely, the parties to the contract, the property to be sold, the consideration for the sale, and the nature of the interest granted. With the receipt clauses in Exhibits A and B, there was a concluded contract for the sale of the land, he argued, referring to the case of GEGE VS. NANDE (2006) 10 NWLR (Pt. 988) 256 at 284. Counsel argued that the trial judge’s failure to properly evaluate the evidence in Exhibits A and B, is what led him to import the issue of payment of 5% agency fee, when no such stipulation is stated in Exhibits A and B. He urged us to resolve the Issue in favour of the Appellant.
On this Issue, learned counsel for the respondents submitted that a party in a Suit, has the burden of proving his case on credible evidence and cannot rely on the weakness of his opponent’s case -AGBI VS. OGBEH (2006) 11 NWLR (Pt. 990) 65 and ALHAJI OTARU & SONS LTD VS. IDRI (1999) 6 NWLR (Pt. 606) 330 at 342. He argued that the averments in paragraphs 9, 10 and 11 of the statement of claim concerning the payment of N100 million to the 1st -3rd respondents have been contradicted by paragraphs 4 and 5 of the Reply to the Joint Statement of Defence. That the averment in the said paragraphs 4 and 5 were corroborated by PW2, a corroboration that qualifies as an admission against interest -ONISAODU VS. ELEWUJU (2006) 13 NWLR (Pt. 998) 517 at 529 -530. Furthermore, he argued, the evidence of PW2 which is at variance with that of the appellant (PW1) who called him, has destroyed the case for the appellant and should be dismissed -OJUKWU VS. OBASANJO (2004) 1 EPR 626 at 674 -675.
On the importation of 5% agency into the agreement of the parties by the trial judge, which was used to vary the agreement of the parties, learned counsel submitted that Section 132(1) of the Evidence act then applicable, recognizes an exception when the existence of a separate oral agreement is a condition precedent. Parties can rely on it without the necessity of inserting it into the agreement, provided it is pleaded and supported by evidence -EKPEHI VS. OWOHONDA (1998) 3 NWLR (Pt. 543) 618 at 642. Counsel submitted further, that when oral evidence will assist the court, it will be admitted -JACK VS. WHYTE (2001) 6 NWLR (Pt. 709) 266 at 284. He urged us to resolve the Issue in favour of the Respondents.
Whilst discussing Issue No. 1, I had held that there was no valid contract in existence between the 1st -3rd respondents and the Appellant. The position is the same here and so the submission of counsel to the appellant in this Issue, to the effect that there was a complete agreement on the essential terms of parties to the contract and the consideration, cannot be correct.
A most fundamental and basic element for the creation of a contract is Agreement. Did the parties agree and what did they agree upon? Usually, the way the courts would determine whether parties have reached an agreement, is to find out whether an offer has been made and whether it was accepted without any variation. In the instant appeal, the 3rd Defendant in his statement on Oath stated at pages 42 -43 that
13. “…..the plaintiff told me that he has negotiated with Jamilu to pay N90 million for the property.
16. That I also told him the plaintiff the Administrators will not accept N90 million but N100 million and 5% agency fee to the agent.
19. That I saw him (plaintiff) only once, that was when he offered N90 million and we rejected and have not set my eyes on him again.
24. That the plaintiff, through Jamilu who came to price insisted that he cannot pay N100 million and at the same time pay agency fee.
29. That when we (the administrators) met again, we rejected the terms offered by the plaintiff which is to the effect that the agency fee should be paid out of the principal sum of N100 million.
30. That when same was communicated to the plaintiff, he refused and still insisted that he cannot pay agency fee.
From the above, it is very clear that the Appellant offered initially, to purchase the property for the sum of N90 million only. This offer was rejected by the Administrators. Since there was no acceptance to the offer, there was no agreement. Also, when the Administrators offered the Appellant the property at the sum of N100 million plus 5% agency fee, he did not accept same. Since he did not accept the offer of the Administrators, there was no agreement. There was a total absence of Agreement between the Administrators and the Appellant on the purchase price, since there were only offers and counter-offers, which in a contract, amounts to a rejection of the original offer by the offeror. There cannot therefore be an acceptance.
Apart from the absence of agreement between the Appellant and the 1st -3rd respondents on the purchase price, there is evidence which the trial court accepted, that the appellant had not proved that he paid N100 million to the administrators, as consideration for the sale of the property in question, as he alleged. Consideration being an essential element of a contract, it is clear that a valid contract could not be in existence. Whenever the essential elements of a valid contract, such as agreement and consideration are absent, the alleged contract will be incompetent and unenforceable. See AKINYOMI VS. ODU’A INVESTMENT (2012) 1 SCNJ (Pt. 1) 127.
It is lame to argue as was done by the Appellant, that issue of agency fee of 5% was imported by the trial judge. That is not correct. It was evidence that was led by the respondents which the trial judge utilized in evaluating the evidence, to reach the conclusions he did. It was not parole evidence. Even if it is, Section 132(1)(b) of the Evidence Act is an exception, and it allows oral evidence of a condition precedent to be led. Clearly, the evidence before the trial court shows that the payment of 5% agency fee was a condition precedent to the contractual agreement for the sale of the property in question-paragraphs 21, 22, 25 and 34 of the Witness Statement on Oath of DW1 in support of the averments in the Amended Statement of Defence. Furthermore, once oral evidence will throw more light upon or assist the court to determine the probative value of documents before it, it is admissible. See JACK VS. WHYTE (Supra) at 284. In the instant appeal, Exhibits A and B were tendered as evidence of a valid and existing contract between the Appellant and 1st -3rd respondents. The Exhibits were attacked on the grounds that not all the Administrators signed them because there was no concurrence of all of them and that the payment of 5% agency fee which was not reflected in the Exhibits, was a condition precedent to the sale and validity of what Exhibits A and B purported to convey. Clearly, therefore, oral evidence was admissible to enable the court determine their probative value as to whether the essential elements of a contract, namely agreement, capacity to enter into the agreement and consideration, exist or not. The trial court admitted the evidence, evaluated the evidence and came to the right conclusions based on the facts and the law. The receipt clauses in Exhibits A and B were therefore not exclusive. Other evidence was admissible and indeed necessary, to determine the probative value of the Exhibits in their entirety. After all, the case of GEGE VS. NANDE (Supra) relied upon by the appellant, held that a contract for the sale of land exists and is concluded only where “there is a final and complete agreement of the parties on essential terms of the contract namely, “the parties to the contract, the property to be sold, the consideration for the sale and the nature of the interest to be granted.” Here, there is no final and complete agreement of the parties on the consideration for the sale of the property in question. There is therefore no existence of a contract.
Issue No. 2 is resolved in favour of the Respondent and against the Appellant.
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.
HUSSEIN MUKHTAR, J.C.A.: I have had the benefit of reading in draft the leading judgment just delivered by my learned brother Yahaya, JCA. I agree with his reasoning and conclusion that the appeal is devoid of merit and should be dismissed. I order accordingly and abide by all the consequential orders contained in the judgment including the order as to costs.
REGINA OBIAGELI NWODO, J.C.A.: I agree.
Appearances
F. R. Onoja with Oluwanuami AdenipekunFor Appellant
AND
Yusuf Ustaz Usman SAN with J. I. Usman, H. Hassan and A. O. PhilipFor Respondent
