MARAM & ANOR v. BOKKOS LOCAL GOVT COUNCIL
(2022)LCN/17061(CA)
In The Court Of Appeal
(JOS JUDICIAL DIVISION)
On Monday, April 11, 2022
CA/J/386/2019
Before Our Lordships:
Monica Bolna’an Dongban-Mensem Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Ibrahim Ali Andenyangtso Justice of the Court of Appeal
Between
1. HOSEA MARAM 2. PASTOR MATHEW MARAM (Suing For And On Behalf Of Maram Movolo Family) APPELANT(S)
And
BOKKOS LOCAL GOVERNMENT COUNCIL RESPONDENT(S)
RATIO
DEFINITION OF A TENANT
Section 2 (1) of Recovery of Premises Act Cap. 193 defines the word “tenant” to include any person occupying premises whether on payment of rent or otherwise but does not include a person occupying premises under a bonafide claim to be the owner of the premises. See SOBAMOWO V. FEDERAL PUBLIC TRUSTEE (1970) LPELR – 3078 (SC), ABEKE V. ODUNSI & ANOR (2013) LPELR – 20640 (SC) and PAN ASIAN AFRICAN CO LTD V. NICON (1982) LPELR – 2898 (SC). The crux of the Appellants’ claim at the trial Court is that based on the several judgments naming the Appellants as the owners of the land in dispute, the Appellants now have a tenancy agreement with the Respondent. The Appellants came to that conclusion based on the letters of demand for rent the Appellants sent to the Respondent in Exhibits “N” and “P”. Both parties acknowledge and concede that prior to the said letters of demand, there was no communication or agreement between the Appellants and the Respondent on the issue of tenancy.
A tenancy relationship is established and formed by an agreement entered into by the landlord who is the owner of the premises and the tenant, who is desirous of the use and enjoyment of possession of the said premises on the terms and conditions freely agreed upon by the both of them. See DICKSON & ANOR V. ASSAMUDO (2013) LPELR – 20416 (CA).
Tenancy like any other contractual agreement is bound by the rules of contract. PER DONGBAN-MENSEM, J.C.A.
THE FACTORS THAT MUST BE PRESENT FOR A VALID CONTRACT TO EXIST
For a valid contract to exist, three elements must be present. These elements are offer, acceptance and consideration, without which a contract is not valid. This is so because there must be consensus ad idem, a meeting of the mind and mutuality of purpose for a contract to be binding on the Parties involved. In the case of BILANTE INTL LTD V. N.D.I.C (2011) LPELR – 781 (SC) the Apex Court held that:
“To constitute a binding contract between parties, there must be a meeting of the mind often referred to as consensus ad idem. The mutual consent relates to offer and acceptance. An offer is the expression by a party of readiness to contract on the terms specified by him which if accepted by the offeree gives rise to a binding contract. The offer matures to a contract where the offeree signifies a clear and unequivocal intention to accept the offer. See Okugbule & Anor v. Oyagbola & Ors (1990) 4 NWLR (Pt. 147) 723.
It should be reiterated that in order to establish that parties have formed a contract, there must be evidence of consensus ad idem between them.” Per Fabiyi, J.S.C. (Emphasis mine). (See also TSOKWA OIL MARKETING CO. (NIG) LTD V. BANK OF THE NORTH LTD (2002) LPELR – 3268 (SC) and FASSASSI V. ZAMFARA STATE GOVT & ANOR. (2019) LPELR – 49323 (CA).
The elements that must exist in a contract to make it valid and binding on the parties were expounded in the case of BPS CONSTRUCTION & ENGINEERING CO. LTD V. FCDA (2017) LPELR – 42516 (SC) thus:
“…Contract is defined as an agreement between two or more persons which creates an obligation to do or not to do a particular thing. Its essentials are competent parties, subject matter, a legal consideration parties, subject matter, a legal consideration, mutuality of agreement and mutuality of obligation. Lamoureu v. Burrillvillle Racing Ass’n 91 R. 194, 161 A.2d 213, 215…
The basic elements of binding contract are therefore offer, acceptance/consideration, capacity to contract and intention to create a legal relationship. See also Alfotrin Ltd. Vs A.G. Federation & Ors. (1996) 9 NWLR (Pt. 475) 634 AT 656 H; (1996) LPELR-414 (SC) AT 29 B – D per Iguh, JSC to wit:
“To constitute a binding contract, there must be an agreement in that the parties must be in consensus ad idem with regard to the essential terms and conditions thereof; the parties must intend to create legal relations and the promise of each party in a simple contract, not under seal, must be supported by consideration. 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.” Per Kekere-Ekun, J.S.C. (Emphasis mine). PER DONGBAN-MENSEM, J.C.A.
WHETHER OR NOT ACCEPTANCE CAN BE INFERRED BY THE SILENCE AND CONDUCT OF A PARTY
The Appellants contend that acceptance could be inferred by the silence and conduct of the Respondent. This submission is not applicable in the instant case. This is because for acceptance to be inferred from the silence or the conduct of a party, this conduct must be positively geared towards the fulfilment or performance of the contract. For instance, if Party A tells Party B to supply chairs to Party A and Party B without communicating acceptance goes ahead to supply the Chairs. This would be interpreted as acceptance by conduct. In B. F. I. GROUP V. BUREAU OF PUBLIC ENTERPRISES (2007) LPELR – 8998 (CA), this Court declared that:
“The conduct of the parties must be unequivocally traceable to the transaction to constitute acceptance. Where there is a missing link between the conduct of the parties and the transaction, a Court of law will not be prepared to hold that a valid contract exists between them. An acceptance of offer by conduct will amount to proper acceptance only if it is clear that the offeree did the act with the intention of accepting the offer. See Orient Bank (Nig.) Plc v. Bilante International Ltd (1997) 8 NWLR (pt 515) 37 at 77 per Tobin: Majekodunmi v. NBN (1978) 3 SC 119, Chagoury v. Adebayo (1972) NCLR 384, UBN Ltd v. Ozigi (1991) 2 NWLR (pt. 176) 677.
There must be positive evidence from which the Court may infer an acceptance. This may consist in words, in writing or in conduct. The acceptance must be communicated to the offeror.” Per Peter-Odili, JCA (AHTW). (Emphasis mine). PER DONGBAN-MENSEM, J.C.A.
THE PRINCIPLE THAT EQUITY AIDS THE VIGILANT
The Appellants cannot unilaterally foist or shove a tenancy down the throat of the Respondent simply because they are the owners of the premises. The Respondent has the freewill to choose and the Appellants also have other legal avenues where they could have exercised their right of ownership. Yet the Appellants failed, refused or neglected to explore those channels and are insisting on a tenancy relationship with the Respondent. The legal maxim, equity aids the vigilant and not the indolent readily comes to mind in the circumstance. See A.G. RIVERS STATE V. UDE & ORS (2006) LPELR – 626(SC). The Appellants acquiesced in the alleged unlawful possession of their land. Such inaction has legal consequences. See UKWA & ORS V. AWKA LOCAL COUNCIL AND ORS (1965) ALL NLR 364 and ODUOLA & ORS V. IBADAN CITY COUNCIL & ANOR (1978) LPELR-2255 (SC). PER DONGBAN-MENSEM, J.C.A.
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment): On the 24th of January, 2018, a decision of the High Court of Plateau State was delivered Coram J. P. Gang (J). The claim of the Plaintiffs now Appellants was dismissed.
The Appellants sought the following reliefs in their Statement of Claim:
a. A Declaration that having regards to the existing judgments in their favour, the Plaintiffs are the landlords of all that property being occupied by the Defendant in Tekawai (Kawai) Taragol in Bokkos L.G.A Plateau State
b. A Declaration that the Defendant is a tenant of the Plaintiffs in the said premises occupied by it in Tekawai (Kawai) Tarangol in Bokkos L.G.A.
c. An Order requiring the Defendant to pay to the Plaintiffs all the due and outstanding rents with respect to the entire premises minus the 8 man quarters and Corpers lodge which the Defendant occupies in Tekawai (Kawai) Tarangol in Bokkos L.G.A at a monthly rent rate of N2,500,000.00 from 1/8/13 to 31/12/15.
d. An Order requiring the Defendant to pay to the Plaintiffs all the due and outstanding rents with respect to the 8 man quarters and Corpers lodge which it occupies in Tekawai (Kawai) Tarangol in Bokkos L.G.A at a monthly rent rate of N1,500,000.00 from 1/8/13 to 31/12/15.
e. An Order requiring the Defendant to pay to the Plaintiffs the sum of N2,500,000.00 monthly rent with respect to the entire premises minus the 8 man quarters and Corpers lodge which the Defendant occupies in Tekawai (Kawai) Tarangol in Bokkos L.G.A from the 1st January 2016 till the judgment of this Honourable Court.
f. An Order requiring the Defendant to pay the Plaintiffs the sum of N1,500,000.00 monthly rent with respect to the 8 man quarters and Corpers lodge which the Defendant occupies in Tekawai (Kawai) Tarangol in Bokkos L.G.A from the 1st January, 2016 till the judgment of this Honourable Court.
g. An Order requiring the Defendant to give up vacant possession of the said Plaintiffs property.
h. Cost of this action.” (See pages 12-13 of the Records).
The Defendant now Respondent filed a Statement of Defence denying the Plaintiffs’ claims. The Plaintiffs on 10/7/16 filed a reply to the Statement of Defence.
At the hearing of the case, the Plaintiffs called two witnesses PW2, Hosea Maram (1st Plaintiff) and PW1 Pastor Mathew Maram (2nd Plaintiff). They also tendered 19 Exhibits (Exhibits A – S) to buttress their case. Two other Exhibits; ‘T’ and ‘U’ were tendered through PW2 under cross-examination. The Defendant called one witness DW1, Mr. Sunday Tok. No document was tendered as exhibit by him. After being cross-examined the defence closed and the matter was adjourned for Counsel’s addresses.
The grouse of the Appellants is that the lower Court then held that they as Plaintiffs had proved acts of ownership through the said Exhibits which they tendered, but declined to enter judgment with respect to their claim for rents due from the Defendant. (See Pages 1-3 of the Appellants’ Brief).
The parties in this appeal shall simply be referred to as Appellants and Respondent.
The Appellants filed a Notice of Appeal of seven (7) grounds on 27/05/2019 dated the same date. The Appellants’ Amended Notice of Appeal of eight (8) grounds dated 13/07/2020 was filed on the same date. The Appellants’ Brief of Argument dated 15/11/2019 was filed on 18/11/2019 and was deemed filed on 08/02/2021 while the Respondent’s Brief of Argument dated 04/03/2021 was filed on 04/03/2021. The Appellants filed a Reply Brief dated 05/10/2021 on 06/10/2021 and was deemed filed on 11/10/2021. The learned Counsel to the Respondent, Prof. F. M. Kwede filed a notice of Preliminary Objection on 05/03/2021, dated 04/03/2021. The sole ground for the Preliminary Objection is:
“That the Appellants initiated the action vide a writ of summons dated the 22nd Day of January, 2016, exclusively “suing for and on behalf of the Maram Mavolo family”, a non-juristic personality which is incapable of initiating a valid legal process.”
At the hearing of the appeal, despite the service of Hearing Notice on the Respondent, the Respondent Counsel was not present in Court to move the Motion on Notice raising the Preliminary Objection. The learned Counsel to the Appellants urged the Court to deem the Preliminary Objection as abandoned and strike out same.
The Preliminary Objection which is by way of Motion on Notice ought to be moved at the hearing of the appeal, before the argument of the Appellant. Where this is not done, the Preliminary Objection would be deemed abandoned. See the case of OFORKIRE & ANOR V. MADUIKE (2003) 5 NWLR (Pt. 812) 166 which held that;
“…I agree with the learned Counsel that a party in the Court of Appeal having a Preliminary Objection against any grounds of appeal must give the Appellant three days notice before the Objection is heard. The notice of Preliminary Objection can be given in the Respondent’s brief, but a party filing it, in the brief, must ask the Court for leave to move the notice of objection before the oral hearing of the appeal commences otherwise it will be deemed to have been waived and therefore abandoned.” per Mohammmed, J.S.C. (Emphasis mine).
In the case of NSIRIM V. NSIRIM (1990) 3 NWLR (PT. 138) P 285, His Lordship, Obaseki, J.S.C. succinctly laid out the procedure. The eminent Jurist declared thus;
“The Respondent in the instant appeal has contended that although the objection was stated in the brief, the Court was not moved at the oral hearing of the appeal to strike out the grounds for failure of particulars of errors. He therefore submitted that the appellant herein should be taken to have abandoned the objection, more so, as it was not an issue for determination in the appeal before the Court of Appeal.
In my opinion, there is substantial merit in the contention of the Respondent. Being a preliminary objection, the objection should have been by way of motion on notice before the hearing of the appeal so that arguments on it can be heard by the Court. While notice of objection may be given in the brief, it does not dispense with the need for the respondent to move the Court at the oral hearing for the relief prayed for. This preliminary objection, not having been raised and argued at the oral hearing, the Court of Appeal cannot be condemned as having erred in allowing the then Appellant (now Respondent) to argue his Appeal.”(Emphasis mine). (See also OKOROCHA V. PDP & ORS (2014) VOL. 57 (Pt. 2) NSCQLR P. 272 AT 319 per Ogunbiyi, J.S.C. and the unreported decision of this Court in the case of MR. CHUKWUEMEKA ILOZOR V. TOTAL NIGERIA PLC, Appeal No. CA/E/75/2015 delivered at the Enugu Division per Dongban-Mensem, JCA (AHTW).
The Preliminary Objection raised by the Counsel to the Respondent must be deemed abandoned having not been moved at the hearing of the appeal and is of no legal consequence.
The learned Counsel to the Respondent was not present at the hearing of the appeal despite having been duly served with Hearing Notice. However, the Counsel to the Respondent had earlier filed a brief of argument and the learned Counsel to the Appellant urged the Court to deem the Respondent’s brief as duly argued. By virtue of Order 19 (9) (4) of the Court of Appeal Rules, 2021, the brief of the Respondent is hereby deemed as having been duly argued.
Martin Omohwo, Esq., of learned Counsel to the Appellants distilled seven (7) issues for determination to wit;
1. Whether the Plaintiffs are the landlords of the landed property occupied by the Defendant. (Ground 5).
2. Whether Exhibits N and P were letters of intent or invitation to treat or offer to pay rent; (Ground 1).
3. Whether the Defendant impliedly accepted the Plaintiffs’ offer to pay rents for the premises it is occupying. (Ground 2).
4. Whether there was a valid and enforceable contract between the Plaintiffs and Defendant, and thus whether the Plaintiffs proved their claims as to be entitled to the reliefs which they sought before the lower Court. (Grounds 3 and 7).
5. Whether the Plaintiffs are at liberty to convert their relationship with the Defendant from tenancy at will to rent paying tenancy instead of enforcing the judgments that have gone in their favour by employing the legal modes of execution of such judgments. (Ground 4).
6. Whether the lower Court considered the Plaintiffs claim in paragraph 72 (g) of their Statement of Claim and if not whether it ought to have granted it in the alternative. (Ground 6).
7. Whether the lower Court was right to have dismissed the Plaintiff’s suit in its entirety whereas it had found that they were the owners/title holders of the land occupied by the Defendant. (Ground 8).
Prof. F. M. Kwede, of learned Counsel to the Respondent distilled three (3) issues for determination to wit:
1. Whether from the facts of this case, and borne out by the record of appeal there exists any enforceable tenancy contract between the Appellants (as Plaintiffs in the lower Court) and the Respondents (as Defendant in the lower Court). Distilled from grounds 1, 2, 3, 4, 5 and 7 of the Appellants’ Amended Notice and Grounds of Appeal dated and filed 13/7/2020, moved and granted on the 8th day of February, 2021.
2. Whether the lower Court could have granted the Appellants’ claim in paragraph 72(g) of their statement of claim or grant same in the alternative. Distilled from ground 6 of the Appellants’ Amended Notice and Grounds of Appeal dated and filed on 13/7/2020, moved and granted on the 8th day of February, 2021.
3. Whether the fact that the Court resolved issues 1 and 2 as formulated by the Appellants at the trial Court in favour of the Plaintiffs but found that the defendant was a party to only Exhibit G, the Court was not right to have dismissed the entire suit which was strictly about tenancy. Distilled from ground 8 of the Appellants’ Amended Notice and Grounds of Appeal dated and filed 13/7/2020. Moved and granted 8th day of February 2021.
A cursory look at the issues raised by both the Appellants and the Respondent would reveal that both parties have raised very similar issues for determination which all revolve around the fourth, sixth and seventh issues raised by the Appellants. It is clear that the grouse of the Appellants in its entirety is and can be effectively resolved by the determination of Issues four (4), six (6) and seven (7), which are very similar to issues raised by the Respondent. All the other issues distilled are verbose and unduly repetitive. Accordingly, this appeal shall be determined on the issues distilled by the Respondent, issues 2 and 3 shall be taken together.
ISSUE ONE
The learned Counsel to the Appellants submit that having confirmed that the Appellants are the owners of the property occupied by the Respondent, the trial Court ought to have proceeded to confirm the Appellants as the Landlords of the Property as long as the Respondent is in occupation of same whether as a Tenant at will or rent paying Tenant. That it is not a tenancy agreement that confers on a property owner the status of Landlord, but the status of owning the property and the occupation of same by another party under any or no agreement. Relies on the definition of Landlord and Tenant under Section 2 (1) of the Recovery of Premises Law, Laws of Northern Nigeria, 1963, Vol. III, Section 2 of the Plateau State Rent Control and Recovery of Premises Edict No. 1 of 1998 and ORHUNHUR V. IVEVER (2015) 1 NWLR (PT. 1439) 192.
Submits that the trial Court wrongly applied the case of BPS CONSTR. & ENGR. CO. LTD. V. F.C.D.A. (2017) 10 NWLR (PT. 1572) 1 and wrongly referred to Exhibits “N” and “P” as invitations to treat. That a contract may be verbal or written and that a tenancy contract is not the same as other contracts because in tenancy contracts, the Landlord unilaterally fixes the rent as the Appellants did in Exhibits “N” and “P” and then it is left for the tenant to either accept or reject but the Respondent chose to remain silent which is an implied acceptance by the Respondent because the Respondent remained on the premises. Cites Section 75, Evidence Act, Order 25, Rule 25 of the High Court (Civil Procedure) Rules of Plateau State, DASPAN V. MANGU LOCAL GOVERNMENT COUNCIL (2013) 2 NWLR (PT. 1338) 203, UWEMEDIMO V. M.P. UNLTD. (2011) 4 NWLR (PT. 1236) 80, COOP. DEV. BANK PLC V. EKANEM (2009) 16 NWLR (PT. 1168) 585 and ZENON PETROLEUM & GAS V. IDRISIYYA LTD (2006) 8 NWLR (PT. 982) 221.
It is the submission of the learned Counsel to the Appellants that their failure to enforce the previous judgment of the lower Court in their favour was because of the intervention of the District and Village Heads who convinced them not to evict the Respondent but convert them to tenants and they considered that they are also indigenes of the Respondent. That declaratory judgments cannot be enforced unless under a separate action initiated to enforce them. Relies on ENEKWE V. I.M.B. (NIG.) LTD (2006) 19 NWLR (PT. 1013) 146 and urges the Court to hold that there is an implied contract between the Parties and grant the reliefs sought in Paragraph 72 (c), (d), (e) and (f) of the Statement of Claim.
Further submits that the defence of bonafide claim of ownership does not avail the Respondent because in Suit No. PLD/BL12/2010, the lower Court found that the Respondent is a trespasser and a cost of N250,000 (Two Hundred and Fifty Thousand Naira) was awarded against the Respondent. Responding, the learned Counsel to the Respondent states that the ingredients of a valid contract are offer, acceptance and consideration and there has never been any dealing whatsoever in respect of tenancy between both Parties from which the issue of acceptance by conduct could be inferred. That the case of DASPAN V. MANGU LOCAL GOVERNMENT cited by the Appellants is distinguishable from the instant case because there was an existing contract already in the former case while there is no tenancy agreement whatsoever between the parties in the latter case. Cites ABBA V. S.P.D.C.N. LTD (2013) 11 NWLR (PT. 1364) 86 and NJIKONYE V. MTN NIG. COMM. LTD (2008) ALL FWLR (PT. 413) 1343.
Further states that the Appellants rather than enforce the judgments in their favour chose to convert the enforcement of the said judgments to tenancy. That the submission by the Appellants that the Respondent is not occupying the premises as a bonafide owner cannot be correct and it is one thing for a person to be the owner of a property and an entirely different thing for another person in occupation of the said property or land to create a landlord-tenant relationship. Urges the Court to discountenance issues 1-5 canvassed by the Appellants as same amount to their ipse dixit and non sequitur.
Section 40 of Rent Control and Recovery of Residential Premises, Edict No. 9 defines the term “landlord” thus;
“Landlord in relation to any premises means the person entitled to the immediate reversion of the premises or if the property therein is held in joint tenancy or tenancy in common, any of the persons entitled to the immediate reversion… ” (See COKER V. ADETAYO & ORS (1996) LPELR – 879 (SC).
Section 2 (1) of Recovery of Premises Act Cap. 193 defines the word “tenant” to include any person occupying premises whether on payment of rent or otherwise but does not include a person occupying premises under a bonafide claim to be the owner of the premises. See SOBAMOWO V. FEDERAL PUBLIC TRUSTEE (1970) LPELR – 3078 (SC), ABEKE V. ODUNSI & ANOR (2013) LPELR – 20640 (SC) and PAN ASIAN AFRICAN CO LTD V. NICON (1982) LPELR – 2898 (SC). The crux of the Appellants’ claim at the trial Court is that based on the several judgments naming the Appellants as the owners of the land in dispute, the Appellants now have a tenancy agreement with the Respondent. The Appellants came to that conclusion based on the letters of demand for rent the Appellants sent to the Respondent in Exhibits “N” and “P”. Both parties acknowledge and concede that prior to the said letters of demand, there was no communication or agreement between the Appellants and the Respondent on the issue of tenancy.
A tenancy relationship is established and formed by an agreement entered into by the landlord who is the owner of the premises and the tenant, who is desirous of the use and enjoyment of possession of the said premises on the terms and conditions freely agreed upon by the both of them. See DICKSON & ANOR V. ASSAMUDO (2013) LPELR – 20416 (CA).
Tenancy like any other contractual agreement is bound by the rules of contract.
For a valid contract to exist, three elements must be present. These elements are offer, acceptance and consideration, without which a contract is not valid. This is so because there must be consensus ad idem, a meeting of the mind and mutuality of purpose for a contract to be binding on the Parties involved. In the case of BILANTE INTL LTD V. N.D.I.C (2011) LPELR – 781 (SC) the Apex Court held that:
“To constitute a binding contract between parties, there must be a meeting of the mind often referred to as consensus ad idem. The mutual consent relates to offer and acceptance. An offer is the expression by a party of readiness to contract on the terms specified by him which if accepted by the offeree gives rise to a binding contract. The offer matures to a contract where the offeree signifies a clear and unequivocal intention to accept the offer. See Okugbule & Anor v. Oyagbola & Ors (1990) 4 NWLR (Pt. 147) 723.
It should be reiterated that in order to establish that parties have formed a contract, there must be evidence of consensus ad idem between them.” Per Fabiyi, J.S.C. (Emphasis mine). (See also TSOKWA OIL MARKETING CO. (NIG) LTD V. BANK OF THE NORTH LTD (2002) LPELR – 3268 (SC) and FASSASSI V. ZAMFARA STATE GOVT & ANOR. (2019) LPELR – 49323 (CA).
The elements that must exist in a contract to make it valid and binding on the parties were expounded in the case of BPS CONSTRUCTION & ENGINEERING CO. LTD V. FCDA (2017) LPELR – 42516 (SC) thus:
“…Contract is defined as an agreement between two or more persons which creates an obligation to do or not to do a particular thing. Its essentials are competent parties, subject matter, a legal consideration parties, subject matter, a legal consideration, mutuality of agreement and mutuality of obligation. Lamoureu v. Burrillvillle Racing Ass’n 91 R. 194, 161 A.2d 213, 215…
The basic elements of binding contract are therefore offer, acceptance/consideration, capacity to contract and intention to create a legal relationship. See also Alfotrin Ltd. Vs A.G. Federation & Ors. (1996) 9 NWLR (Pt. 475) 634 AT 656 H; (1996) LPELR-414 (SC) AT 29 B – D per Iguh, JSC to wit:
“To constitute a binding contract, there must be an agreement in that the parties must be in consensus ad idem with regard to the essential terms and conditions thereof; the parties must intend to create legal relations and the promise of each party in a simple contract, not under seal, must be supported by consideration. 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.” Per Kekere-Ekun, J.S.C. (Emphasis mine).
From the totality of evidence adduced before the trial Court, can it be rightly said that the Appellants established the existence of the abovementioned elements of a valid contract? The evidence of the Appellants at the trial is that the issue of Tenancy was first brought up by the Ward and District Heads in an attempt to convince the Appellants not to evict the Respondent following the judgment in the Appellants’ favour. The Appellants do not deny that there was no communication with the Respondent on the issue of tenancy and rent payable except for the letters of demand in Exhibits “N” and “P”. It is not in dispute that there was no discussion on rent payable by the Respondent. Infact, the Appellants have stated that it is their right as Landlords to unilaterally fix the amount to be paid as rent by the Respondent who is its Tenants. The rider here is how did the Appellants become Landlords? The Appellants gave evidence that since the lower Court have declared them owners of the premises in dispute, they have automatically become Landlords over the Respondent who is in occupation of the premises. This assumption by the Appellants could not be more farther from the truth. There is a whole world of difference between an Owner and a Landlord. This is because in order to become a Landlord, there has to be someone who has agreed to become a Tenant to the Landlord.
The Appellants sent letters to the Respondent demanding for rent and assumed that was enough to form a tenancy relationship between the Parties. However, the Respondent did not reply nor comply with the letters and the Appellants have urged this Court to find that acceptance could be inferred from the silence of the Respondent. I am well guided by the decisions of the Apex Court and this Court that abound on the issue of offer and acceptance. I crave indulgence to reproduce extensively the finding in the case of ASHAKACEM PLC V. ASHARATUL MUBASHSHURUN INVESTMENT LTD (2019) LPELR – 46541 (SC) which also deals with the issue of correspondence between parties. The Apex Court held that:
“In this instance, Exhibit M contains the respondent’s dual requests on upward review of the contract prices of LPFO supplied to the appellant’s Kano and Ashaka storage tanks. For LPFO supplied to Kano the respondent had requested for a review from N59.50 to N69.50 per litre. For supplies to Ashaka, the respondent offered to supply LPFO at N75.00 per litre as against the contract price of N65.00 per litre. Exhibit E is the reply to Exhibit M which is silent on the request for upward review of supplies. No evidence was adduced to show that appellant approved in writing the respondent’s request on the new contract price offer of N69.50 per litre or any other price for supplies to Kano storage tank.
The implication of what is on ground is that an offer of the upward review remained unaccepted and so it cannot be said that there was a valid contract in the absence of the unconditional or unqualified acceptance of an offer in order to have a valid contract on the offer to supply at N69.50 of LPFO. Also there was no offer to supply at N75.00 per litre.
On a scenario such as the present, I rely on the following cases on the need for there to be unqualified acceptance of an offer in order to have a valid contract.
(1) OMEGA BANK PLC v O.B.C. LTD (2005) 8 NWLR (Pt. 928) 547 at 575 Para A.
“In order to decide whether the parties have reached an agreement, it is usual to inquire whether there has been a definite offer by one party and an unqualified acceptance of that offer by another.
It is the law of contract that the letter of acceptance must unqualifiedly accept the particular offer”…
“And before any contract or agreement can be said come into existence, in law, there must be an unmistaken and precise offer and unconditional acceptance of the terms mutually agreed upon by the parties. In other words, the parties to the agreement must be in consensus ad idem as regards the terms and conditions freely and voluntarily agreed upon by them. Both sides to the contract must be clear as to what the more fundamental term and crucial terms of the agreement connote before the agreement can be said to come into legal effect.” Per Peter-Odili, J.S.C. (Emphasis mine).
The Appellants cannot decide for the Respondent, it is the Respondent that reserves the right to freely and voluntarily decide whether or not to enter into a tenancy agreement with the Appellants. In an earlier decision of the Apex Court, it was declared that:
“The position in law is stated in Halsbury’s Laws of England, 3rd Edition Volume 8 page 72 as follows:-
“126. Mode of acceptance. An offer cannot be accepted by anyone except the person to whom it is made, and acceptance means the assent of that person, signified in the mode required by the terms of the offer.” Per Coker, J.S.C. (Emphasis mine). See AFOLABI V. POLYMERA INDUSTRIES (NIG.) LTD (1967) LPELR – 25340 (SC).
The Appellants contend that acceptance could be inferred by the silence and conduct of the Respondent. This submission is not applicable in the instant case. This is because for acceptance to be inferred from the silence or the conduct of a party, this conduct must be positively geared towards the fulfilment or performance of the contract. For instance, if Party A tells Party B to supply chairs to Party A and Party B without communicating acceptance goes ahead to supply the Chairs. This would be interpreted as acceptance by conduct. In B. F. I. GROUP V. BUREAU OF PUBLIC ENTERPRISES (2007) LPELR – 8998 (CA), this Court declared that:
“The conduct of the parties must be unequivocally traceable to the transaction to constitute acceptance. Where there is a missing link between the conduct of the parties and the transaction, a Court of law will not be prepared to hold that a valid contract exists between them. An acceptance of offer by conduct will amount to proper acceptance only if it is clear that the offeree did the act with the intention of accepting the offer. See Orient Bank (Nig.) Plc v. Bilante International Ltd (1997) 8 NWLR (pt 515) 37 at 77 per Tobin: Majekodunmi v. NBN (1978) 3 SC 119, Chagoury v. Adebayo (1972) NCLR 384, UBN Ltd v. Ozigi (1991) 2 NWLR (pt. 176) 677.
There must be positive evidence from which the Court may infer an acceptance. This may consist in words, in writing or in conduct. The acceptance must be communicated to the offeror.” Per Peter-Odili, JCA (AHTW). (Emphasis mine).
Similarly, in the case of JEGEDE V. MAYOR ENGINEERING CO LTD (2013) LPELR – 20284 (CA), this Court held thus:
“In this case, the lower Court concluded as follows on the issue of contract –
“…Parties can only be said to have entered into a validly binding contract if there is evidence of the following: offer, unqualified acceptance, consideration, intention to enter into a legally binding contract on the terms agreed on … I am afraid I do not think the contents of those documents necessitate my drawing such an inference especially when they are solely produced by the claimant. .. Assuming that Exhibit “A” is the Claimant’s offer of his services as a distributor and the alleged signature of the Defendant’s Chairman on Exhibit “A” is proof of acceptance of this offer, there is nothing on Exhibit “A” or any of Claimant’s other documents suggesting and or proving [his] acceptance of the offer on the terms claimed by the Claimant.”
Obviously, the lower Court’s decision cannot be faulted – for a contract to exist, there has to be an offer by one party to another and an acceptance by the person to whom the offer is addressed.” Per Augie, JCA (AHTW). (Emphasis mine). (See also MIKANO INTL LTD V. EHUMADU (2013) LPELR – 20282 (CA).
The Appellants placed heavy reliance on Exhibits “N” and “P” to prove that there exists a tenancy relationship between the parties. Exhibits “N” and P are at best Offers made to the Respondent who received the letters but did not respond. It cannot be said that the Respondent accepted this offer. The conduct of the Respondent by remaining on the premises cannot be interpreted as a positive conduct towards the fulfilment of a Tenancy. This is because the Respondent believed that it has bonafide claim of right over the premises according to DW1 who stated that it was different Communities that donated the land the Respondent is occupying and the Appellants have been adequately compensated for their own portion by the employment given to the Appellants’ brother, Mark Maram. (See Paragraphs 24 and 25, Page 50 of the Records). By virtue of the definition of Landlord and Tenant above, the Respondent is excluded from the category of being a Tenant because of the bonafide claim of right over the premises.
I agree with the learned Counsel to the Respondent that the case of DASPAN V. MANGU LOCAL GOVERNMENT (SUPRA) is distinguishable from the instant case because there were series of correspondences between the parties from which this Court drew the inference of a contract from. This is not the situation in the instant case because the Respondent never responded to the letters from the Appellants demanding for rent. In drawing the inference of a contract between the parties, this Court in DASPAN V MANGU LOCAL GOVERNMENT (SUPRA) held thus;
“It is noteworthy that the Respondent did not deny the above correspondence and thus, a series of other correspondences followed which gave the strong impression that there was a definite meeting of minds between the Appellant and the Respondent somewhere along the line…
It is possible for a contract to emerge from series of correspondence between two persons. But it must be apparent when the correspondences exchanged are read together that the parties have come to an agreement. Exhibits 16-18 as well as 21-25 are some of the correspondences exchanged between the Appellant and the Respondent which in my opinion culminated into the contract between them and the subject matter or cause of action in the instant appeal matter.” Per Ekpe, JCA. (Emphasis mine).
There is clearly no evidence of any correspondences on rent or tenancy between the Appellants and the Respondent in the instant appeal.
The Appellants cannot unilaterally foist or shove a tenancy down the throat of the Respondent simply because they are the owners of the premises. The Respondent has the freewill to choose and the Appellants also have other legal avenues where they could have exercised their right of ownership. Yet the Appellants failed, refused or neglected to explore those channels and are insisting on a tenancy relationship with the Respondent. The legal maxim, equity aids the vigilant and not the indolent readily comes to mind in the circumstance. See A.G. RIVERS STATE V. UDE & ORS (2006) LPELR – 626(SC). The Appellants acquiesced in the alleged unlawful possession of their land. Such inaction has legal consequences. See UKWA & ORS V. AWKA LOCAL COUNCIL AND ORS (1965) ALL NLR 364 and ODUOLA & ORS V. IBADAN CITY COUNCIL & ANOR (1978) LPELR-2255 (SC).
Issue one is resolved in favour of the Respondent and against the Appellants.
ISSUES TWO AND THREE
The learned Counsel to the Appellants submits that the trial Court did not consider the Appellants’ alternative claim in Paragraph 70 of the Statement of Claim for the Respondent to vacate the premises having found that the Appellants are the owners of the premises in dispute. That the Appellants are entitled the reliefs in Paragraph 72 (a) and (b) of the Statement of Claim which is a consequential order and urges the Court to grant the said relief.
The learned Counsel to the Respondent responds that a non-party to a suit can never be bound by the decision in respect thereof. That this case is the first one that involves the Respondent and the previous judgments in favour of the Appellants by the lower Courts do not cover the particular land in dispute. Relies on AKINSANYA V. A.G. FED. & 1 OR. (2013) ALL FWLR (PT. 668) 941.
It is the submission of the learned Counsel to the Respondent that by virtue of Section 15 (1) of the Plateau State Limitation Law, the Appellants are statute barred from enforcing Exhibits “A1”, “A2” and “C” which occurred in 1974 and 1994 respectively. Submits that the only judgment that involves the Respondent is Exhibit G which the Appellants have admitted that they have taken possession of the portion that was subject of award thereof. That the case before the trial Court is not for declaration of title to land but strictly for a declaration that a landlord-tenant relationship exists between the Appellants and the Respondent.
Further submits that the Appellants failed to discharge the obligation bestowed upon them by law to serve the Respondent with all the appropriate quit notices required by law to have warranted the Court to make an order giving vacant possession to the Appellants. Cites BFI GROUP V. BUREAU OF PUBLIC ENTERPRISE (2013) ALL FWLR (PT. 676) 444 and urges the Court to dismiss the appeal for lacking in merit.
From the Statement of Claim filed by the Appellants as Plaintiffs at the trial Court, it is abundantly clear that the grouse of the Appellants is not the ownership of the land but tenancy and the rent. (See Pages 4-13 of the Records). It is not in dispute that the case at the trial Court is not for the declaration of title to land but a declaration that a tenancy relationship exists between the Parties. However, the Appellants have urged this Court to order that the Respondent deliver up vacant possession of the premises in dispute to the Appellants.
It is curious that the Appellants have chosen this line of argument which is not applicable in the instant case. The law is unequivocal that parties are bound by their pleadings, the case is for tenancy and rent therefore the Appellants are not allowed to sneak in the issue of possession under whichever guise as they did in the instant case under reliefs sought. See BAKARI V. OGUNDIPE & ORS (2020) LPELR-49571 (SC), IKOTUN V. OYEKANMI & ANOR. (2008) LPELR-1485 (SC), IDACHABA & ORS V. UNIVERSITY OF AGRICULTURE, MAKURDI & ORS (2021) LPELR- 53081 (SC) and WASSAH & ORS V. KARA & ORS (2014) LPELR- 24212 (SC). As the trial Court has duly noted in page 317 of the Records, several judgments of the Lower Court and this Court abound to the effect that the Appellants are the owners of the land in dispute and the trial Court will not succumb to the temptation of the Parties by analyzing the said judgments. This Court shall also not succumb to the temptation of revisiting its own judgment. Courts are estopped from sitting on appeal over their own decision.
Issues 2 and 3 are resolved in favour of the Respondent and against the Appellants.
Having resolved all the issues in favour of the Respondent and against the Appellants, I find that this appeal lacks merit and it is hereby dismissed.
Accordingly, the decision of the trial Court in Suit No. PLD/J27/2016 delivered on the 24th of January, 2018 Coram J. P. Gang (J). is hereby affirmed.
I make no order as to cost.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the judgment just delivered by learned brother, Monica Bolna’an Dongban-Mensem, P.C.A. I agree that the appeal has no merit and should be dismissed.
A landlord is someone who rents a room, building or piece of land to someone else. See Blacks Law Dictionary 10th Edition.
The Appellants did not show the trial Court that they gave any property on rent to the Respondent. It was not even shown that the parties discussed the issue of rent not to mention reaching an agreement to this effect.
The appellants did not claim for declaration of title to land. It is the law that a party is bound by his claim before the Court and he is not permitted to make a case outside his claim. See the decision of this Court in Jev & Anor v Iyortyom & Ors (2012) LPELR-9291.
A judgment obtained in Court could not translate to a tenancy agreement between the parties as erroneously assumed by the Appellants. The Appellants having hinged their claim on this non-existent tenancy were wrong to expect the Court below to declare them entitled to the land.
For the more elaborate reasons contained in the lead judgment, I too dismiss the appeal and affirm the judgment of J.P. Gang J.
I abide by all other orders in the lead judgment including the order as to costs.
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have read in draft the judgment just delivered by my Noble Lord, Hon. President Court of Appeal, Monica B. Dongban-Mensem, HPCA and I am in total agreement with his reasoning and conclusion that this appeal lacks merit and is accordingly dismissed by me. I abide by the consequential orders therein contained ordering no costs.
Appearances:
M. O. Omohwo, Esq. For Appellant(s)
Prof. F. M. Kwede. For Respondent(s)
