JOY T. WAKAMA VS ADOLPHUS KALIO & ANOR (1995)

JOY T. WAKAMA VS ADOLPHUS KALIO & ANOR

(1995) LCN/2606(SC)

In the Supreme Court of Nigeria

Tuesday, October 3, 1995

Case Number: SC.269/1991

RATIO

LAW OF CONTRACT: WHEN A LETTER OF OFFER IS EQUIVOCAL

It will be observed that the letter of offer contains two optional forms of payment. One is by a direct payment of the whole amount due in which case, a time limit applies and the other by a loan from the Federal Mortgage Bank in which case no time limit for the completion of the transaction is stipulated. The plaintiff opted to seek a loan from the Federal Mortgage Bank and is therefore not limited on the face of the letter of offer to a time limit within which to complete the transaction and obtain the money- PER MOHAMMED JSC.

JUSTICES:

MUHAMMADU LAWAL UWAIS, JUSTICE, SUPREME COURT

ABUBAKAR BASHIR WALI, JUSTICE, SUPREME COURT

EMANUEL OBIOMA OGWUEGBU, JUSTICE, SUPREME COURT

UTHMAN MOHAMMED., JUSTICE, SUPREME COURT

APPELLANTS

JOY T. WAKAMA

RESPONDENTS

1. ADOLPHUS KALIO

2. THE CHIEF LAND OFFICER PORT HARCOURT, RIVERS STATE

MOHAMMED, J.S.C. (Delivering the Leading Judgment):

The present appellant was defendant to an action instituted against her by the 1st respondent, as plaintiff, in the High Court of Rivers State sitting at Port Harcourt. In the action the 1st respondent claimed for a declaration of title to a house being managed by the Abandoned Properties Implementation Committee. The House is situated at 184, Bonny Street, Port Harcourt. The 1st respondent, in addition, claimed that the purported sale and issue of building lease of the disputed property to the appellant by the 2nd respondent is null and void. He also claimed for an injunction restraining the appellant, her servants or agents from interfering with his rights over the said property.

The facts, in a nutshell, disclose that a sale of the disputed property was conducted through an open ballot by the Abandoned Properties Implementation Committee, hereinafter referred to as A.P.I.C. The 1st respondent, Mr. Adolphus Kalio, won the ballot and was notified by A.P.I.C. in its letter dated 22nd August, 1977. The letter stipulating the terms of the offer is Exhibit A before the trial High Court and it reads:

“Abandoned Property.

Implementation Committee,

c/o Governor’s Office, Port Harcourt.

22nd August, 1977.

Adolphus Kalio,

77 Niger Street,

Port Harcourt,

Letter of Offer

Plot F Block 148 Layout Township

(No. 184 Bonny Street, PH )

I am pleased to inform you that you won the above mentioned property in the open ballot on sales of abandoned property conducted at the Port Harcourt City Council on 18th August, 1977. The price of the said building excluding Deed and valuation fees is N11,800 (eleven thousand eight hundred naira). The valuation fee is N118.00.

You are required to pay the costs of the building and the valuation fee to the Account of the Federal Pay Officer credited to the Deposit Account Head 1502 at the Central Bank, Port Harcourt.
On payment you will obtain a letter from the Central Bank which you will present at 13 Liberation Drive, Port Harcourt. The Federal Pay Officer will issue you necessary treasury receipts to be tendered before the Committee not later than 08 September, 77.
You are to please note that where you fail to complete this payment before or on 08 Sept 77 you will forfeit the property and it will be allocated to another person.
Where you require a loan, you are to present a copy of this letter to the Mortgage Bank at No. 37 Ikwerre Road, Port Harcourt or to any other Bank with which you have negotiated personally and inform this office accordingly.

D.A.B.

Mark Major”

On 15th November, 1977, a similar letter was addressed to the appellant offering the same property for only N1,900.00. The valuation was put at N 1,90.00. The appellant hurriedly paid N2,090.00 to cover the cost and valuation fee of the house and on 18th May, 1978, a Lease Agreement was issued to her. In a later development A.P.I.C. wrote a letter, dated 25th August, 1978, to the Ministry of Lands and Survey explaining that they were misled into allocating the disputed property to the appellant at a value of N2,090.00. The Committee directed that the Lease issued to the appellant be cancelled because the house had been won by the 1st respondent at a ballot and that Mr. Kahn had since paid 10% deposit together with valuation fee. Also, the Federal Mortgage Bank had given a guarantee for a loan to assist Mr. Kalio to buy the house.

In another twist to this confused situation a letter was sent by the A.P.I.C. on 14th September, 1978 to the Ministry of Lands and Survey to collect the balance of N9,710.00 from the appellant if she intended to retain the disputed house. The appellant denied ever receiving that letter and therefore made no payment of the balance. On 17th March, 1979, another letter was written by A.P.I.C to the Ministry of Land and Survey requesting the Military Administrator to issue a lease of the disputed property to Mr. Kahn. A copy of the letter was endorsed to the appellant with the following remarks:

“The offer of above property if ever made to you is hereby revoked……”

The learned trial Judge after considering all the facts and the exhibits referred to above found that the 1st respondent, Mr. Kalio, having opted to seek a loan from the Federal Mortgage Bank is not limited on the face of the offer to a time limit within which to complete the transaction and pay for the disputed property. It was against this judgment that the appellant appealed to the Court of Appeal. In a unanimous decision the Court of Appeal, Port Harcourt Division, coram Kolawole, J.C.A., Onu, J.C.A. (as he then was) and Jacks, J.C.A., dismissed the appeal. Kolawole, J.C.A., who wrote the lead judgment held:

“Having considered all the submissions addressed to us by Counsel for both parties I have come to the irresistible conclusion that this is a case in which the rules of equity ought to prevail having regard to all the surrounding circumstance of the case. I have held that there is a contract of sale between the respondent and the Abandoned Properties Implementation Committee consequently the respondent has acquired a priorequitable right over the property over the appellant who has none. As against her the respondent is entitled to an injunction to protect that right or its violation.”

Dissatisfied with the above judgment, Joy T. Wakama, further appealed to this Court. Learned counsel for the appellant, Mr. Abraham Adesanya, formulated five issues for the determination of this appeal. The issues are as follows:

Did the plaintiff/respondent accept the offer made to him by the Abandoned Properties Implementation Committee (A.P.I. C) for the sale of No. 184, Bonny Street, Port Harcourt on the 22nd August, 1977?
Could the payment of the Assessment Fee of N118.00 made by the plaintiff/respondent on 20th October, 1977 and/or the payment of N720.00 on the 17th November 1977 as part payment of the 10% of the cost of the property constitute an acceptance of the offer of the Abandoned Properties

Implementation Committee made to the plaintiff/respondent either on the 22nd August 1977 or at any other time thereafter?

Has the plaintiff/respondent locus standi to institute this action against the 1st defendant/appellant seeking the Court’s Order to set aside a contract to which he is not a party?
Is the Court of Appeal right in construing Exhibit C1 against the defendant/appellant when she is neither the maker nor the person to whom the document was addressed, without considering the contradicting effect of the contradicting oral and documentary evidence of the person who tendered same in support of his case?
Is the Court of Appeal right in framing and granting a relief not sought for by the plaintiff without affording the defendant the opportunity of being heard on the reframed relief?”

Learned counsel for the 1st respondent’ adopted the above issues. He however raised a preliminary objection that the appeal presently constituted by the notice of appeal filed on 21st December, 1992 is incompetent having been construed and noted upon as validating an incompetent appeal and secondly, that the notice of appeal and appellant’s brief of argument filed in the name of a dead person – late Mr. Adolphus Kalio is void.

I think learned counsel for the respondent has not got his information about the filing of this appeal, in this court, correctly. On 4th May, 1992, motion for enlargement of time to appeal was withdrawn and thus court struck it out. On 7th December, 1992, another motion for enlargement of time to appeal was granted. The notice of appeal was filed on 21/12/92 and it retained the earlier suit number SC. 269/1991. It is not correct therefore to say that there were two notices of appeal being heard at the same time. Even if, through inadvertence, the first notice of appeal was not struck out, since this court granted an application to file the second notice of appeal it goes without saying that the first notice could not be used to prosecute this appeal. This objection is without any merit and it is dismissed.

The second point, that the notice of appeal and the appellant’s brief of argument were void because they bore the name of a dead person, to wit, Adolphus Kalio, is another technical objection. Since at the chambers of respondent’s counsel the name Adolphus had been changed to read Abigail, I do not see the point of raising this preliminary objection. In any event learned counsel for the respondent is not also out of this error, because in the respondent’s brief he wrote the name of 1st respondent as Adolphus Kalio and not Abigail Kalio. So what is the fuss about the wrong name. This objection is also baseless and I reject it. I now turn to the main appeal. Learned counsel for the appellant argued all the issues formulated for the determination of this appeal together. The pith of the learned counsel’s argument which is the contre core of this appeal is the interpretation made by the trial court which was affirmed by the Court of Appeal of the terms of the letter of offer written by A.P.I.C. to Mr. Adolphus Kalio. I have reproduced that letter earlier in this judgment. The vital paragraphs in the letter are paragraphs 4 and 5 which read:

“4. You are to please note that where you fail to complete this payment before or on 08 September, 77 you will forfeit the property and it will be allocated to another person.

5. Where you require a loan, you are to present a copy of this letter to the Mortgage Bank at No. 37 Ikwerre Road, Port Harcourt or to any other Bank with which you have negotiated personally and inform this office accordingly.”

Learned counsel for the appellant submitted that by the terms of the offer to the 1st respondent the acceptance could only be by the payment of the Assessment fee of N118.00 and 10% of the cost before or on the 8th September, 1977. But all payments mentioned above were made outside the 8th September, 1977 stipulated by the offer. This submission is no tcorrect. Mr.Kaliosaid inevidence that he paid N200 as part of the 10% of the cost the building on 8/9/77. This payment is definitely within the time stipulated in paragraph 4 of Exhibit A. Be that as it may, the judgment of the trial court is based on the second option which A.P.I.C. gave to Mr Kalio in paragraph 5 of Exhibit A. The learned trial Judge observed earlier in his judgment that the Federal Mortgage Bank had given a guarantee to assist Mr. Kalio with a loan to purchase the house. He thereafter found as follows:

In his submission learned counsel for the 1st respondent argued that the learned trial Judge correctly construed the contents and intendment of the terms in Exhibit A. the letter of offer and the Court of Appeal has accepted the construction given by the learned trial Judge. There are therefore two concurrent findings of the two lower courts on this issue. Learned counsel for the appellant has not succeeded in showing where the two lower courts had erred in construing that paragraph 5 of Exhibit A disclosed no time limit for the completion of the alternative loan arrangement. Appeals to Supreme Court are governed by Section 213 of the Constitution of the Federal Republic of Nigeria and in considering the scope governing the complaint on concurrent findings of fact by both High Court and the Court of Appeal, except where exceptional circumstances have been shown, the well established practice of this Court is not to disturb such a finding. See Omoboriowo v. Ajasin (1984) I SCNLR 108 and Etowa Enang and others v. Findelis Ado (1981) 11-12 SC 25.

I may decide otherwise if the decision of the two lower courts is not justified by the evidence or by the surrounding circumstances of this case. See Lokoyi v. Olojo (1983) 2 SCNLR 127. The surrounding circumstances of this case put the defence of the appellant in shambles. It is inconceivable that a property valued at N 11,800 would within two and a half months be offered for sale to another person for only N2,090.00. It has been explained by the A.P.I.C. that the subsequent sale of the property to the appellant was an error which happened due to a misleading information. One can easily agree with the A.P.I.C., because the purchase price could not be justified under any circumstances. It will be inequitable to bind the A.P.I.C. to this contract of sale. I agree with the Court of Appeal that this Court being court of law and equity, it would amount to injustice to say that A.P.I.C. is bound by the purchase and lease agreement entered with the appellant.

It is quite clear that even before Mr. Kalio went to court the Abandoned Properties Implementation Committee had already communicated to the appellant, through Exhibit C, that the erroneous offer given to her had been revoked. Thus Mr. Kalio is quite right to claim for a declaration that the purported sale and issue of Lease of the property to the appellant is null and void. The decision of the A.P.I.C. has given Mr, Kalio the right to possess the property because section 1 of Decree 90 of 1979 has validated all transactions of the A.P.I.C. in the following provision:

“Every sale or disposition of abandoned property conducted by the A.P.I.C. shall be deemed to have been lawfully and properly made and every Instrument issued by the Committee which purports to convey an estate or interest in land shall be deemed to have been validly issued and shall have effect according to its tenor and intendment.”

On issue 5 learned counsel for the appellant submitted that the relief granted by the Court of Appeal is a complete departure from the relief sought for by the plaintiff. It is not in accord with the plaintiff’s claim and as it has been emphasised times without number the court should not grant a relief not applied for. Counsel referred to Okubule v. Oyagbola (1990) 4 NWLR (Pt. 147) 723 and Awoyegbe v. Ogbeide (1988) 1 NWLR (Pt. 73) 695. I have looked into the relief sought by the 1st respondent before the trial court and the relief granted by the Court of Appeal and with respect to the submission of the learned counsel for the appellant I do not see any difference between the two. If the complaint of the learned counsel is on the address of the property which the Court of Appeal gave in its judgment, he should read paragraph 4 of the statement of claim which was admitted in paragraph 5 of the statement of defence. That will answer the issue raised on relief granted which was not claimed by the 1st respondent.

In the result, this appeal fails. The judgment of the Court of Appeal in which it dismissed that appellant’s appeal from the decision of Port Harcourt High Court is hereby affirmed. The 1st respondent is awarded N 1000.00 costs.

UWAIS, J.S.C.

I have had the advantage of reading in draft the judgment read by my learned brother Mohammed, J.S.C. I agree that the appeal has no merit and that it should be dismissed.

Accordingly, the appeal is hereby dismissed. I abide by the order in the said judgment.

WALI, J.S.C.

I have had a preview of the lead judgment just delivered by my learned brother, Uthman Mohammed, J.S.C, and I find myself in complete agreement with the reasoning and conclusions reached therein.

Save for the confusion created by the Abandoned Properties Implementation Committee, hereinafter referred to as A.P.I.C. and which it explained was due to misleading facts presented to it, the facts involved in the case are simple and straight forward. These facts have been sufficiently stated by my learned brother in his lead judgment and therefore need to further repetition.

From the facts both the appellant and the 1st respondent were clients of the A.P.I.C. in connection with the purchase of the abandoned landed property to wit – No. 184 Bonny Street, Port Harcourt. The first offer was made to the 1st respondent as per Exhibit A which has been reproduced in the lead judgment. It was dated 22nd August 1977.

As a result of Exhibit A, particularly paragraphs 2 and 5 thereof which provide that –

“2. You are required to pay the costs of the building and the valuation fee to the Account of the Federal Pay Officer credited to the Deposit Account Head 1502 at the Central Bank, Port Harcourt.

3. x x x x x x x x

4. x x x x x x x x

The respondent in compliance with paragraphs 2 and 5 abovepaid for the valuation fee of N 118.00 as per Exhibit B and the 10% value of the property. See Exhs B – 134. It was part of the 1st respondent’s evidence that payment of 10% of the value of the house entitled him to the lease of the house.

As correctly stated by the learned Judge, Exh. A gives the first respondent two options for the purchase of the house. These are –

Direct payment of the whole amount due and in which case a time limit is provided, or
By a loan through the Federal Mortgage Bank in which case no time is stipulated.

The 1st respondent opted for the 2nd alternative. He negotiated with the Mortgage Bank for a loan to purchase the property as a result of which the Mortgage Bank issued him with Exhibit C2.

In Exh. C1, the A.P.I.C., through its committee wrote to the Ministry of Lands and Survey confirming the cancellation of later sale of the same property by Exh. A1. Exhibit..C1” reads thus –

”As a result of the misleading information to us by the Ministry, the above property was allocated to Miss Joy T. Wakama at a value of N 2,090.00 whereas the original owner has not been paid his compensation. Notice of your issue of a Lease on the above property to Miss Wakama should therefore be cancelled on the following grounds.”

One of the grounds reads thus:

“The house was balloted and won by one Mr. A. Kalio who had since on the 22nd August, 1977 paid the required deposit of 10% and the valuation fee as well. The Federal Mortgage Bank has given a guarantee to assist with a loan to enable Mr. Kalio buy the house’.

The letter then proceeded as follow:-

“‘As a result of the above, the Committee is inclined to let Mr. A. Kalio retain the property. Miss Wakama has to get the refund of her money back or she may be considered for another allocation.” Exhibit C was written on 25th August 1978. Unfortunately the same committee wrote another letter dated l4th September 1978 – Exh. C 3 advising the same Ministry of Lands and Survey to collect the balance of N 9,710.00 from the appellant for the simple reason that she had been put in possession of the property in dispute. The appellant did not make the payment. And as a result of the nonpayment of the said balance by the appellant, the committee of the A.P.I.C. wrote a letter dated 17th March 1979 – Exh C3, to the Ministry of Lands and Survey to inform the Ministry that it had advised the Military Administrator to issue the lease of the property to the 1st respondent who had earlier won it in the ballot’and had also mortgaged the same to the Federal Mortgage Bank.

In resolving the issues raised in this case, the learned trial Judge in his judgment observed as follows:

“It will be observed that the letter of offer contains two optional forms of payment. One is by a direct payment of the whole amount due in which case, a time limit applies and the other by a loan from the Federal Mortgage Bank in which case no time limit for the completion of the transaction is stipulated. The plaintiff opted to seek a loan from the Federal Mortgage Bank and is therefore not limited on the face of the letter of offer to a time limit within which to complete the transaction and obtain the money. There can therefore be no forfeiture. The’Committee’ in its Exhibit ‘C1’ disclosed that the plaintiff had paid the required 10% and valuation fee and had also secured a guarantee of the Federal Mortgage Bank for the loan. It is clear therefore that the subsequent offer of the same house to the 1st defendant was not in exercise of a right of forfeiture by the Lease. The 1st defendant says she saw the address of the house in a list of unpaid for houses, in the office of the ‘Committee’. She does not say it was a list of houses forfeited for non payment of their cost and the list itself is not tendered in evidence. The house was valued at N11,800.00 less valuation fee of N 118.00. The 1st defendant paid N1,900.00 and a valuation fee of N 190.00. If there was in fact a forfeiture, the price would not have reduced and the valuation fee increased.”

The learned Judge then concluded –

“Whether or not this provision applies to the present suit depends on whether or not there is a subsisting sale or disposition of the house in question by the committee to the 1st defendant. The sale made to her is stated to have been so made under some misleading information. She had already been issued with a lease. The position was sought to be rectified by a written demand in Exhibit ‘C3’ for her to pay the balance of N 9,710.00 if she wanted to keep the house. She ignored this demand and made no payment thereby seeking to retain the house for which she has made no complete payment. The ‘Committee’ by Exhibit’C’ then revoked the letter of offer and cancelled the Lease. On these facts there cannot be a valid and subsisting disposition of the house to her and the provisions of Section 1 of Decree No. 90 of 1979 cannot apply.”

“A claim to title to property presupposes the exercise by the claimant of exclusive acts of ownership sufficient to raise the inference that he is the owner. It is unlike a claim for an injunction which is designed to protect possessory or propriety rights. Where therefore some right to property is established a claim for an injunction to protect the right over that property can succeed even though a claim to title over that property has failed Ohm i v. Eniola (1967) NMLR 339.

In the present action title to the house has not been proved because the plaintiff is not in possession of its Lease but he has shown that he has an exclusive right to buy the house having won it in a ballot and having secured a guarantee for a loan to buy it. An order of injunction can therefore be available to him to restrain anyone interfering with his right of purchase of the house. His claim for an injunction therefore succeeds and I hereby order an injunction against the 1st defendant, her servants or agents from interfering with plaintiff’s right of purchase over the house.

He also claims a declaration that the Lease issued by the 2nd defendant to the t st defendant is null and void. The A.P.I.C. is the appropriate statutory body to sell or dispose of any abandoned property. This body has itself revoked the offer of sale of the house and also cancelled its lease issued on a misleading information to the 1st defendant. The Lease therefore has no validity and is hereby declared null and void.”

The present appellant appealed to the Court of Appeal against the judgment of the trial court. In a well considered judgment of the Court of Appeal by Kolawole, J.C.A. with which Onu, J.C.A., (as he then was) and Jacks J.C.A. agreed, the learned Justice after reviewing the case came to the following conclusions and made the follows orders –

“I have held that there is a contract of sale between the respondent and the Abandoned Properties Implementation Committee consequently the respondent has acquired a prior equitable right over the property over the appellant who has none. As against her the respondent is entitled to an injunction to protect that right or its violation. To that extent I shall slightly amend the relief of injunction granted by the learned trial Judge to fall in line with the claim of the respondent. Accordingly, the appeal is dismissed. I affirm the judgment of the learned trial Judge in terms of the claim thus –

The plaintiff is hereby granted a declaration that the purported sale of and the issue of Building lease in respect of the property situate at Plot F Block 148 Layout Township, 184 Bonny Street, Port Harcourt dated 18 May, 1978 and registered as No. 52 at page 52 Volume 70 of the Land Registry at Port Harcourt tendered as Exhibit G1 in these proceedings is null and void and it is hereby set aside.
The plaintiff is hereby granted perpetual injunction restraining the defendant, her servants, agents and assigns from interfering with the rights of the plaintiff’ in and over the said building situate at Plot F Block 148 Layout Township 184 Bonny Street, Port Harcourt.”

The appeal challenges the concurrent findings of the two lower courts which are both amply supported by the evidence. They are unimpeached.

The fact that the appellant had a lease of the disputed property through a wrong offer made to her by the Committee of A.P.I.C. after the 1st respondent had earlier accepted the offer made to him by the same committee, for which he had paid consideration, is not enough to justify and legalise the lease issued to her. There was no evidence that the 1st respondent either resiled from or abandoned the transaction. The 1st respondent’s transaction was complete by the time the second transaction was contracted with the appellant. It is therefore null and void.

It is for these and the fuller reasons contained in the lead judgment that I too hereby dismiss the appeal and subscribe to the consequential orders contained therein.

OGWUEGBU, J.S.C.

I had read the draft the judgment of my learned brother Mohammed, J.S.C. I agree with him that this appeal should be dismissed, Accordingly, I too dismiss it with costs to the respondent assessed at N 1,000.00.

IGUH, J.S.C.

I have had the advantage of a preview of the judgment of my learned brother, Mohammed, J.S.C. just delivered. I agree with him that this appeal lacks merit and should be dismissed. For the same reasons given by him in the said judgment. I too, dismiss it and affirm the decision of the court below. I subscribe to the consequential orders therein made.

Appeal Dismissed.