NAFF LTD/GTE & ORS v. LLOYD & SOTHEBY LTD & ANOR (2021)

NAFF LTD/GTE & ORS v. LLOYD & SOTHEBY LTD & ANOR

(2021)LCN/15070(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, March 26, 2021

CA/A/293/2019

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Between

1. NIGERIA AIR FORCE FOUNDATION LTD/GTE 2. NIGERIA AIR FORCE HOLDING CO. LTD 3. NIGERIA AIR FORCE APPELANT(S)

And

1. LLOYD & SOTHEBY LTD 2. OTUNBA EMMANUEL OKUOMOLA RESPONDENT(S)

RATIO

WHETHER THE FEDERAL HIGH COURT AS JURISDICTION OVER MATTERS ARISING FROM CONTRACT

The documents stated by the trial Court on pages 792 to 793 of the record, reproduced earlier in the judgment are all documents of an alleged understanding between Nigerian Air Force Foundation – the 1st appellant and the respondents for the respondents to redevelop a “medical centre and mammy at Onikan into NAFOTEL Hotel/Modern Medical Centre of Excellence”. The dispute on this arrangement cannot be treated as a civil cause or matter on the “administration or management and control of the Federal Government or any of its agencies” as contemplated by Section 251 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which provides thus: “251. (1) Notwithstanding, anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters – (p) The administration or the management and control of the Federal Government or any of its agencies; (q) Subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies; (r) Any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies”. It is now settled that by virtue of the above constitutional provisions, or provisions in pari materia with them, the Federal High Court is not clothed with jurisdiction over causes or matters involving simple contracts. See Mr. Dayo Omosowan v. Mr. Fred Chiedozie (1998) 9 NWLR (Pt. 566) 477; Felix Onuorah v. Kaduna Refining & Petrochemical Co. Ltd. (2005) 6 NWLR (Pt. 921) 393; Mr. Victor Adelekan v. Ecu-Line NV (2006) 12 NWLR (Pt. 993) 33; Okoyode v. F.C.D.A. (2006) All FWLR (Pt. 298) 1200; Peter Essi v. Nigeria Ports Plc. (2018) 2 NWLR (Pt. 1604) 361 and ENL Consortium Limited v. Donasulu Brothers Nigeria Limited (2020) 8 NWLR (Pt. 1725) 179. PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.

IMPORTANCE OF JURISDICTION

… jurisdiction is pillar upon which a case rests and, where the Court lacks jurisdiction, it is nothing more than an exercise in futility for the Court to entertain and determine the cause or matter. No matter how well conducted and decided the case may be, the Court’s proceedings, including its decisions, are ab initio, null and void. See Attorney General for Trinidad & Tobago v. Erichie (1893) AC 518; Timitimi v. Amabebe (1953) 4 WACA 374; Kanawa v. Maikaset (2007) 10 NWLR (Pt. 1042) 283; Sun Insurance Nigeria Plc. v. Umez Engineering Construction Company Limited (2015) 11 NWLR (Pt. 1471) 576; Hon. Bayo Adegbola v. Hon. Godwin Osiyi & Ors. (2018) 4 NWLR (Pt. 1608) 1 and Ibrahim Adamu & Anor. v. Federal Republic of Nigeria (2020) 2 NWLR (Pt. 1707) 129 at 163; Eko, J.S.C. PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.

WHEN IS A COURT COMPETENT TO ENTERTAIN A MATTER PRESENTED BEFORE IT

In the celebrated case of Gabriel Madukolu v. Johnson Nkemdilim (1962) 1 All NLR (Pt. 4) 587; (1962) 2 SCNLR 241; (1962) NSCC (Vol. 2) 374 at 379 the Supreme Court held that: “A Court is competent when — (1) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and (2) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction: and (3) The case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.”See also, Alhaji Umaru Abba Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517. PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.

WHAT COURT WILL CONSIDER IN DETERMINING WHETHER OR NOT A COURT IS COMPETENT AND/OR HAS JURISDICTION

In order to determine whether or not a Court is competent and/or has jurisdiction, it is the plaintiff’s claim, as couched in the writ of summons and statement of claim, that should be examined and considered. See Izekwe v. Nnadozie 14 WACA 361; Adeyemi v. Opeyori (1976) 9-10 SC 31; Akinfolarin v. Akinnola (1994) 4 SCNJ 30; Anyah v. Iyayi (1993) 7 NWLR (Pt. 306) 290; Ifeajuna v. Ifeajuna (2000) 9 NWLR (Pt. 671) 107; Okulate v. Awosanya (2000) 2 NWLR (Pt. 646) 530; Onuorah v. Okeke (2005) 10 NWLR (Pt. 932) 47; Barrister Ismaeel Ahmed v. Alhaji Nasiru Ahmed (2013) 15 NWLR (Pt. 1377) 274 and Vivian Clems Akpamgbo-Okadigbo v. Egbe Theo Chidi (2015) 10 NWLR (Pt. 1466) 124. If the claim is by way of an originating summons, the Court considers the relief and the affidavit in support thereof. See Isah Shuaibu Lau v. Peoples Democratic Party & 3 Ors. (2018) 4 NWLR (Pt. 1608) 60. PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.

WHETHER THE FEDERAL HIGH COURT HAS JURISDICTION TO ENTERTAIN ALL CAUSES OR MATTERS WHERE THE FEDERAL GOVERNMENT OF NIGERIA OR AGENCY OF THE FEDERAL GOVERNMENT IS A PARTY

It is now settled that, it is not in all causes or matters where the Federal Government of Nigeria or Agency of the Federal Government is a party that the Federal High Court automatically has jurisdiction. As held by the Supreme Court in Terver Kakih v. Peoples Democratic Party (2014) 15 NWLR (Pt. 1430) 374 at 414: “… the most relevant and important consideration is the plaintiff’s claim.” PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The appellants were the defendants in Suit No. FHC/ABJ/CS/104/2013 which was heard and determined by the Federal High Court, holden at Abuja. In the said suit, the respondents, who were the plaintiffs, claimed in their further amended statement of claim as follows:
“(a) A declaration that the defendants’ act of refusal to give effect to the final approval of the contract for the main construction work between the parties hereof having executed a tripartite agreement with the plaintiffs and making the plaintiffs to alter their position by making huge financial commitment is wrongful and amount to a breach of contract.
(b) A declaration that the plaintiffs are entitled to a refund of the total expense incurred by them as a result of the defendants’ wrongful act.
(c) An order directing the defendants to forthwith pay the plaintiffs the total sum as follows:
i. N20,950,000.00 being expenses incurred as referred to in paragraph 16 of the statement of claim hereof.
ii. N21,750,000.00 being expenses incurred as referred to in paragraph 17 of the statement of claim hereof.

iii. N750,000.00 being expenses incurred as referred to in paragraph 18 of the statement of claim hereof.
iv. N136,390,000.00 being expenses incurred as referred to in paragraph 19 of the statement of claim hereof.
v. N9,600,000.00 being expenses incurred as referred to in paragraph 20 of the statement of claim hereof.
vi. USD447,000.00 being expenses incurred as referred to in paragraph 21 of the statement of claim hereof.
vii. USD125,000.00 being expenses incurred as referred to in paragraph 21 of the statement of claim hereof.
viii. N4,800,000.00 being expenses incurred as referred to in paragraph 21 of the statement of claim hereof.
(d) 21% pre-judgment interest per annum on the total money listed in paragraph 23(c)(i-vii) from the date of filling of this suit till judgment is entered.
(e) 10% post-judgment interest per-annum on the total money listed in paragraph 23 (c)(i-vii) from the date of delivery of judgment till the final liquidation of the said sum.
(f) General damages in the sum of N1,000,000,000.00 for loss of income from the date of commencement of the said pre-project work till the date the defendants

backed out of the project.
(g) Cost of this action.”

At the conclusion of hearing and after the addresses of learned counsel for the parties, the trial Court delivered a reserved judgment on the 17th day of January, 2019, wherein, the following claims and order were granted:
“1. Twenty million, nine hundred and fifty thousand naira (N20,950,000.00) only being expenses incurred as per paragraph 16 of the Amended Statement of Claim.
2. Twenty-One million, seven hundred and fifty thousand naira (N21,750,000.00) only, being expenses incurred as per paragraph 17 of the Amended Statement of Claim.
3. One hundred and thirty-six million, three hundred and ninety thousand naira (N136,390,000.00) only, being expenses incurred as per paragraph 19 of the Amended Statement of Claim.
4. Nine million, six hundred thousand naira (N9,600,000.00) only, being expenses incurred as per paragraph 20 of the Amended Statement of Claim.
5. One hundred and ten million, seventy thousand naira (N110,070,000.00) only, being expenses incurred as per paragraph 21.
I hereby also order that the Architectural Drawings and all that the defendants have paid

for as per the reliefs granted be given to the defendants.”

Being dissatisfied with the judgment of the trial Court, the appellants filed two notices of appeal — one on 21/02/2019 and the other on 06/03/2018. The notice of appeal filed on 21/02/2019 was withdrawn by the learned counsel for the appellants and the said notice of appeal, spanning pages 815 to 823 of the record of appeal, is hereby struck out.

The appeal was heard on the appellants’ notice of appeal filed on 06/03/2019 (pages 824 to 828 of the record), appellants’ brief filed on 23/05/2019; the respondents’ brief filed on 29/07/2019 and the appellants’ reply brief filed on 24/07/2020.

Learned counsel for the appellants formulated the following four issues for determination:
“a. Whether the Federal High Court has jurisdiction to try this case that has its root in contract, even when one of the Defendants is an agency of the Federal Government? Distilled from GROUND 1.
b. Whether Nigeria Air Force Foundation Ltd and the Nigeria Air Force Holding Limited (1st & 2nd defendants now 1st & 2nd Appellants) both Companies are agencies of the Federal Government.

GROUND 2.
(c) Whether the Plaintiffs (now Respondents) have any locus standi to bring this suit against the Defendants. Distilled from GROUND…
(d) Whether Exhibit “E” and Exhibit “F” created any enforceable legal relationship between the Appellant and the Respondent. Distilled from GROUND 4.
(e) Whether the claim awarded by the trial Court is supported by evidence placed before the Court? Distilled from GROUND 5 & 6.”

On behalf of the respondents, the following three issues were raised for determination:
“i. Whether the subject matter of this case can be categorized into a single contract as to divest the Federal High Court of the jurisdiction to have entertained this case. Grounds 1 & 2.
ii. Whether the Respondents (the Plaintiffs at the Court below) can be said not to have the locus standi to have instituted this action. Ground 3.
iii. Whether in the circumstances of this case, the learned trial Judge was justified in holding the Appellants liable in terms of the Respondents’ claim.”

The five issues distilled by the learned counsel for the appellants adequately cover their grounds of appeal.

I will decide the appeal on the basis of the issues identified in by the learned counsel for the appellants, but the issues will be renumbered using Arabic numerals. However, issues 1 and 2 will be taken and considered together. And the remaining three issues will be treated under a bullet issue, which is now issue 3, as follows:
“Whether or not there was a binding or an enforceable contract justifying the claim of the respondents and which was awarded”.

ISSUES 1 AND 2
Ike Nzekwe, Esq., learned counsel referred to Section 251 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and the cases of Adelekan v. Ecu-Line NV (2006) 12 NWLR (Pt. 993) 33; Essi v. Nigeria Ports Plc. (2018) 2 NWLR (Pt. 1604) 361; Onuorah v. K.R.P.C. Ltd. (2005) 6 NWLR (Pt. 921) 393 and Sun Insurance Nig. Plc. v. Umez Eng. Const. Co. Ltd. (2015) 11 NWLR (Pt. 1471) 576; and submitted that:
“… the judicial authorities … are very clear on the fact that the Federal High Court does not have jurisdiction to entertain cases of simple contracts.”

Relying on the case of F.M.B.N. v. Olloh (2002) 9 NWLR (Pt. 773) 475, the learned

counsel for the appellants contended as follows:
“The position of our laws is that, limited liability companies cannot be regarded as agency of the Federal Government simply because they are owned by the government; and have as its staff those that are by definition can be referred to as persons working in the public service.”

In his response, Chief Okey Obikeze, learned counsel for the respondents argued that, in the determination of whether the Court has jurisdiction to entertain a case, it is the plaintiff’s claim and not the defence that should be considered.

In support of this argument, learned counsel cited the cases of Tukur v. Govt. of Gongola State (1989) 4 NWLR (Pt. 117) 517; Gafar v. Govt. of Kwara State (2007) 4 NWLR (Pt. 1024) —; Onuorah v. KRPC (2005) 6 NWLR (Pt. 921) 393; Nkuma v. Odili (2006) 6 NWLR (Pt. 977) 587; Onyenucheya v. Mil. Adm., Imo State (1997) 1 NWLR (Pt. 482) 429 and Lufthansa Airlines v. Odiese (2006) 7 NWLR (Pt. 978) 39.

After reviewing the respondents’ averments and claims, as endorsed in their statement of claim, learned counsel contended that it is correct to brand the respondents’ claims as “simple

contract”. He submitted that:
“From plethora of judicial authorities, it is settled that in construing Section 251 of the 1999, Constitution of Nigeria, as amended, two important matters arise for consideration, namely — the parties in litigation and the subject matter of litigation. In the instant case, the Appellants admitted at least that, the 3rd Appellant is an agency of the Federal Government of Nigeria.”

Counsel contended that the cases ofAdelekan v. Ecu-Line NV (supra) and Onuorah v. K.R.P.C. Ltd. (supra) are inapplicable to this case because they were cases of “simple contract”.

The learned counsel for the respondents referred to the case ofCyril O. Osakue v. Federal College of Education (Technical) Asaba (2010) 10 NWLR (Pt. 1201) 1; Benson Agbule v. Warri Refinery & Petrochemical Co. Ltd. (2013) MRSCJ Vol. 16, July, 2013 and NEPA v. Edegbero (2002) 18 NWLR (Pt. 798) 79 and argued, inter alia, as follows:
“The specific relief sought by the Respondents in this case is as stated in paragraph 29 of the amended statement of claim.
3.19 In the instant case, it is very clear that the relationship of the Appellants and

the Respondents in redevelopment of the Appellant’s medical center and mammy market is a business relationship which comes within Section 251 (1) of 1999 Constitution of Nigeria, as amended. It will be illogical for anyone to argue that the decision and efforts made by Appellants’ top most management and administration which spanned many years to redevelop their medical centre and mammy market has nothing to do with the administration, or management or control of the Appellants. It is equally illogical for any person to argue that the engagement of the Respondents by the Appellants’ top most management and administration for the redevelopment of the Appellants’ facilities in the way they did as captured in the statement of claim in this case is a simple contract. We also rely on various letters and documents admitted in evidence in this case. The damages being claimed naturally flow from the actions or inactions of the Appellants in their quest to redevelop their said facilities. The claim of the Respondents is manifestly supported both in law and equity and falls within the exclusive jurisdiction of the Federal High Court. See the proviso to

Subsection 1 (1) of 251 Constitution of the 1999 Constitution of Nigeria, as amended.”

When the relief sought in paragraph 239 of the respondents’ further amended statement of claim are read together with other averments therein, it is clear that the claims are based purely on the parties’ agreement for the “redevelopment of Nigeria Air Force Foundation health centre” as pleaded in paragraph 17 of the respondents’ further amended statement of claim. The agreement for the “redevelopment of Nigeria Air Force Foundation health centre” is a simple contract which has nothing to do with “the administration or management and control of the Federal Government or any of its agencies”.

Contract means “an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law” — Black’s Law Dictionary, Deluxe Ninth Edition, page 565.

A holistic reading of the respondents’ further amended statement of claim clearly reveals that their claim is principally centred on the following documents; as summarized by the trial Court in its judgment, on pages 792 to 793 of the record of appeal:
“The 2nd Plaintiff who is the Managing

Director of the 1st Plaintiff testified as PW1 on 5th of June, 2017. He adopted his statement on oath made on the 22nd December, 2016 which was further amended on the 21st of July, 2017 same as his evidence-in-chief. The PW1 tendered the following Exhibits in proof of his case to wit:
“A letter dated the 8th of April, 2009, which was written and sent to the Defendants by the Plaintiff was admitted and marked as Exhibit PW1A. The correspondence between the Plaintiff and the Defendants dated the 17th of April, 2009 as Exhibit B, which is an invitation to a meeting/discussion of proposal submitted to the Nigerian Air Force Foundation. A letter of appreciation theme as Re- NAPOWA Fund Raising Programme of 15th of July, 2009, as Exhibit C. Exhibit D is a letter of invitation as special guest for the commissioning of prototype building of NAF Foundation Home Ownership Pioneer Programme of 21st July, 2009. A letter of Approval-in-principle of 4th August, 2010, as Exhibit E. A letter of Redevelopment of Nigerian Air Force Medical Centre and Mammy market at Onikan into NAFOTEL HOTEL/Modern Medical Centre of Excellence of 29th September, 2010, as Exhibit F. Exhibit F1

is a letter of Final Approval for Redevelopment of Onikan NAF Health Centre of 15th April, 2011. A summary report on redevelopment of NAF of 8th March, 2012, as Exhibit G. A letter of introduction of Messrs. Lloyd & Sotheby Global Consultant of 12th March, 2012, as Exhibit H. Exhibit G is a request for issuance of registration certificate and other land instruments on Nigerian Airforce land along King George V Road Onikan, Lagos (Former Nigerian Air Force Medical and Mammy market lands), of 27th September, 2011. An offer in principle letter from Wema Bank to Lloyd & Sotheby Global Consultant of 29th November, 2010, as Exhibit J. The receipts of the expenditure made due to the expenses were tendered, admitted and marked as Exhibit K and L.
The experts’ designs and survey for the construction of the Hotel were all admitted and marked as Exhibits M-W. Some documents forwarded to the Defendants by the Plaintiffs admitted and marked as Exhibits X, Y, and Z.
The certificate of registration of the 1st Plaintiff was admitted and marked as Exhibit AA.
These essentially were the documents tendered by the Managing Director of the 1st Plaintiff

in proof of his case before he was cross-examined by the Defendants’ Counsel.”

of its agencies;
(q) Subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;
(r) Any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies”.
It is now settled that by virtue of the above constitutional provisions, or provisions in pari materia with them, the Federal High Court is not clothed with jurisdiction over causes or matters involving simple contracts. See Mr. Dayo Omosowan v. Mr. Fred Chiedozie (1998) 9 NWLR (Pt. 566) 477; Felix Onuorah v. Kaduna Refining & Petrochemical Co. Ltd. (2005) 6 NWLR (Pt. 921) 393; Mr. Victor Adelekan v. Ecu-Line NV (2006) 12 NWLR (Pt. 993) 33; Okoyode v. F.C.D.A. (2006) All FWLR (Pt. 298) 1200; Peter Essi v. Nigeria Ports Plc. (2018) 2 NWLR (Pt. 1604) 361 and ENL Consortium Limited v. Donasulu Brothers Nigeria Limited (2020) 8 NWLR (Pt. 1725) 179.

Just for the sake of emphasis, jurisdiction is pillar upon which a case rests and, where the Court lacks

jurisdiction, it is nothing more than an exercise in futility for the Court to entertain and determine the cause or matter. No matter how well conducted and decided the case may be, the Court’s proceedings, including its decisions, are ab initio, null and void. See Attorney General for Trinidad & Tobago v. Erichie (1893) AC 518; Timitimi v. Amabebe (1953) 4 WACA 374; Kanawa v. Maikaset (2007) 10 NWLR (Pt. 1042) 283; Sun Insurance Nigeria Plc. v. Umez Engineering Construction Company Limited (2015) 11 NWLR (Pt. 1471) 576; Hon. Bayo Adegbola v. Hon. Godwin Osiyi & Ors. (2018) 4 NWLR (Pt. 1608) 1 and Ibrahim Adamu & Anor. v. Federal Republic of Nigeria (2020) 2 NWLR (Pt. 1707) 129 at 163; Eko, J.S.C.

there is no feature in the case which prevents the Court from exercising its jurisdiction: and
(3) The case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.”
See also, Alhaji Umaru Abba Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517.

In order to determine whether or not a Court is competent and/or has jurisdiction, it is the plaintiff’s claim, as couched in the writ of summons and statement of claim, that should be examined and considered. See Izekwe v. Nnadozie 14 WACA 361; Adeyemi v. Opeyori (1976) 9-10 SC 31; Akinfolarin v. Akinnola (1994) 4 SCNJ 30; Anyah v. Iyayi (1993) 7 NWLR (Pt. 306) 290; Ifeajuna v. Ifeajuna (2000) 9 NWLR (Pt. 671) 107; Okulate v. Awosanya (2000) 2 NWLR (Pt. 646) 530; Onuorah v. Okeke (2005) 10 NWLR (Pt. 932) 47; Barrister Ismaeel Ahmed v. Alhaji Nasiru Ahmed (2013) 15 NWLR (Pt. 1377) 274 and Vivian Clems Akpamgbo-Okadigbo v. Egbe Theo Chidi (2015) 10 NWLR (Pt. 1466) 124.
If the claim is by way of an originating summons, the Court considers the relief and the affidavit in support thereof. See

Isah Shuaibu Lau v. Peoples Democratic Party & 3 Ors. (2018) 4 NWLR (Pt. 1608) 60.

On the conditions precedent to the exercise of its exclusive jurisdiction by the Federal High Court over causes or matters under Section 251 (1)(p), (q) & (r) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), this Court held in Savannah Bank of Nigeria Plc. v. Shakiru Gbadesere Saba & Anor. (2018) 14 NWLR (Pt. 1638) 56 at 101 as follows:
“… the parties and the subject matter must combine to bring a matter within the jurisdiction of the Federal High Court. Section 251 is therefore not a blanket provision conferring jurisdiction on the Federal High Court, once any of the parties is the Federal Government or a Federal Government Agency, regardless of the subject matter of the suit.”
To be specific, the relevant documents – exhibits “X”, “Y” “Z” and “Z1” are: “Memorandum of Understanding between Nigeria Air Force Holding Company and NAFOTEL Nigeria Limited”; “Lease of Agreement between Nigeria Airforce Holding Company and LLOYD & SOTHEBY CONSULT PLC”; “Irrevocable Power of Attorney by Nigeria

Airforce Foundation Ltd/GTE”; and “TRIPARTITE AGREEMENT BETWEEN NIGERIAN AIRFORCE LTD/GTE AND NAFOTEL PLC AND A FINANCIER”, respectively.
On the face of exhibits “X”, “Y”, “Z” and “Z1″ the parties are as follows:
(1) Nigeria Airforce Holding Company;
(2) Nafotel Nigeria Ltd;
(3) Lloyed & Sotheby Consult Plc;
(4) Nigeria Airforce Foundation Ltd/GTE; and
(5) Nafotel Plc. and a Financier.
There is nothing in these documents linking the 3rd appellant- Nigeria Air Force to the ‘agreements’. Also, there is no evidence that Nigeria Air Force Holding Company and Nigeria Air Force Foundation Ltd/GTE are agencies of the Federal Republic of Nigeria. At best, these entities are ex facie, corporate bodies incorporated under the relevant Companies and Allied Matters Act, with independent legal personalities of their own, distinct and separate from the Nigeria Air Force – which is an agency of the Federal Government of Nigeria.
It is now settled that, it is not in all causes or matters where the Federal Government of Nigeria or Agency of the Federal Government is a party that the Federal High Court automatically has

jurisdiction. As held by the Supreme Court in Terver Kakih v. Peoples Democratic Party (2014) 15 NWLR (Pt. 1430) 374 at 414: “… the most relevant and important consideration is the plaintiff’s claim.”
The cases heavily relied on by the respondents, including NEPA v. Edegbero (supra), are grossly inapplicable to this case. Those cases were on causes or matters on administrative actions of agencies of the Federal Government of Nigeria, for example, dismissal of their management employees.
The cause of action in this case is alleged failure by the appellants to meet their contractual obligations to the respondents and it is outside the purview of Section 251 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

It is for the foregoing reasons that I resolve this issue in favour of the appellants.

Where a Court lacks the jurisdiction to hear and decide a cause or matter, the proper order is for the case to be struck out.

The resolution of the above issues in favour of the appellants ought to have concluded this judgment. However, in view of the decision in

Alhaji Momoh Bajehson v. Captain Hakeem Oladapo Niyi Otikp & Anor. (2018) 14 NWLR (Pt. 1638) 138 at 154, where the Supreme Court admonished this Court that: “if the penultimate finds that it has no jurisdiction over an appeal or that the trial Court had no jurisdiction to hear the case, it should say so and proceed to hear the appeal on the merits” so that “if it is eventually found by the top Court that the penultimate Court was wrong on jurisdiction, the top Court” would not “be denied the benefit of a judgment of the penultimate Court”.
See also, Dalhatu M. Saki v. All Progressives Congress & 2 Ors. (2020) 1 NWLR (Pt. 1706) 515 and Arewa Paper Converts Ltd. v. NDIC (Nig.) Universal Bank Ltd. (2006) 15 NWLR (Pt. 1002) 404.
I will proceed to consider and decide the remaining issue in this appeal.

ISSUE 3
“Whether or not there was a binding or an enforceable contract justifying the claim of the respondents and which was awarded”.

Learned counsel for the appellants argued that exhibits “E” and “F” did not create any enforceable legal relationship between the appellants and the respondents. After reproducing exhibits “E” and “F1”, learned

counsel submitted that the respondent did not secure approval from the Lagos State Government nor did provide substantial evidence that the said approval would be granted. Counsel contended that exhibit “DW1B” shows that a prospective financier in form of letters of offer was not secured by the respondents.

After referring to the cases of Tsokwa Marketing Co. v. B. O. N. Ltd. (2002) 11 NWLR (Pt. 777) 163; U. B. A. Ltd. v. Tejumola & Sons Ltd. (1988) 2 NWLR (Pt. 79) 662; Okechukwu v. Onuorah (2000) 15 NWLR (Pt. 691) 597 and Best (Nig.) Ltd. v. Blackwood Hodge (Nig.) Ltd. (2011) 5 NWLR (Pt. 1239) 95, learned counsel submitted that:
“The general principle of our law is that, where a contract is made subject to the fulfilment of certain terms and conditions, the contract is inchoate and not binding until those terms and conditions are fulfilled.”

In urging that this issue be resolved in favour of the appellants, learned counsel submitted that, since the trial Court held that there is no formal contract between the appellants and the respondents, it was unsafe to rely on estoppel to grant some of the respondents’ claim. In support of this

submission, the cases of BPS Construction & Engineering Co. Ltd. v. Federal Capital Development Authority (2017) 10 NWLR (Pt. 1572) 1 and Trans Bridge Co. Ltd. v. Survey International Ltd. (1986) 4 NWLR (Pt. 37) 576.

On the other hand, learned counsel for the respondents, after summarizing the facts of the case, submitted that:
“The law is ubi jus ubi remedium (meaning once there is a wrong there must be a remedy). The wrongful act of the Appellants must have its consequences. The Appellants cannot, both in law and equity be allowed to just walk away after by their actions making the Respondents to crisscross the entire globe in search of experts that produced ideas and document for the benefit of the Appellants. The Respondents are entitled to be restituted in damages.
In this case, the Respondent pleaded and gave graphic evidence of their relationship with the Appellants. It was at the instance and benefit of the Appellants that the Respondents rendered numerous and highly skilled consultancy services. The architectural drawings and Bill of Quantities were produced by the Respondents for the benefit of the Appellants. The Appellants fully

enjoyed the services of the Respondent. The Appellants further goaded the Respondents into making huge expenditure arising from the requirements of the Appellants as shown in Exhibit E, that is, letter dated 4/8/2010. The Respondents’ accomplishment of the Appellants’ demands in Exhibit E was acknowledged by the Appellants in Exhibit F1. The Appellants, after exposing the Respondents to immense financial expenditure, backed out. One of the reasons offered by the Appellants is that there is no enforceable contract between the parties.”

Counsel contended also that the case of BPS Construction & Engineering Company Limited v. Federal Capital Development Authority (supra) is not applicable because “this case is distinguishable”.

Relying on Section 169 of the Evidence Act, 2011, and the cases of Military Governor of Lagos State v. Adeyiga (2012) 5 NWLR (Pt. 1293) 291; Mabamije v. Hans Wolfang Otto (2016) 13 NWLR (Pt. 1529) 111 and Sosan v. HFP Eng. Ltd. (2004) 3 NWLR (Pt. 861) 346 learned counsel stated that:
“Equity will not allow the appellants to walk away without facing the consequences of their wrongful act.” The appellants will be estopped

from denying liability in this matter”.

The law is that, for there to be a valid contract, the following ingredients must be present:
(a) Offer;
(b) Unqualified acceptance;
(c) Consideration;
(d) Intention to create legal relations; and
(e) Capacity to contract.
See Tsokwa Motors Nigeria Ltd. & Anor v. Union Bank of Nigeria Ltd. (1996) 9 NWLR (Pt. 471) 129; Orient Bank of Nigeria Plc. v. Bilante International Ltd. (1997) 8 NWLR (Pt. 515) 37; Petroleum Training Institute v. Brown Nwamu (2001) 5 NWLR (Pt. 705) 112 and Omega Bank Nigeria Plc. v. O.B.C. Ltd. (2005) 8 NWLR (Pt. 928) 547.

On how to constitute a binding contract, the definition of offer and when a contract matures, the Supreme Court, in Providence Ogechukwu Mekwunye v. West African Examination Council (2020) 6 NWLR (Pt. 1719) 1 at 31, held as follows:
“To constitute a binding contract between parties, there must be a meeting of the mind which is referred to as “consensus ad idem” which mutual consent relates to an offer and acceptance. The definition of an offer in my humble view is, the expression by a party of readiness to contract on the

terms specified by him which is if accepted by the offeree gives rise to a binding contract. The maturation to a contract happens where the offeree signifies a clear and unequivocal intention to accept the offer.
In fuller expatiation, in order to establish that the parties have formed a contract, there must be evidence of consensus ad idem between them. If there is a stipulated mode for acceptance of the offer, the offeree has a duty to comply with same and no less.”
See also, the cases of Afolabi v. Polymera Industries (1967) 1 All NLR 14, (1967) SCNLR 256 and Bilante Int’l Ltd. v. NDIC (2011) 15 NWLR (Pt. 1270) 407 cited by the Supreme Court in Mekwunye v. WAEC (supra).

In this case, the trial Court found and held, on page 808 of the record of appeal, inter alia, that:
“… there is no formal contract entered into by the parties…”

I think that the trial Court was roundly right in holding that there was no formal contract in this case. This is so because, the entire monetary claims of the respondents revolve around their averments in paragraphs 11 to 16 of their further amended statement of claim whereby the averred,

inter alia, as follows:
“11. With the consent of the defendants, the plaintiffs with other experts in various aspects of estate development made several visits and inspections of the defendants’ facilities to be re-developed. The plaintiffs shall found upon some of the letters addressed to Comd. NAF camp, Lagos and copied to the plaintiffs granting the plaintiffs access to inspect the said land. The plaintiffs similarly made several visits to the Abuja office of the defendants on the invitation of the defendants with various team of experts. The assemblage, transportation, feeding, accommodation and fees paid to these experts were enormous.
12. After series of inspections of the land and discussions with the defendants, the defendants by a letter dated December 15th, 2009, once more invited the plaintiffs for a final presentation on the redevelopment of Onikan hospital land. The plaintiffs shall found upon the said invitation letter during trial.
13. The plaintiffs made the presentation as demanded of them by the defendant. It was a presentation of a miniature concept of the entire project done by the experts (Architects). It took the

plaintiffs quite some time to ensure that their consultants do a thorough review and assessment of the presentations of the plaintiffs. The defendants by its letter dated August 4th, 2010, accepted the plaintiffs’ proposal in the redevelopment of the said land. The plaintiffs shall found upon the said letter during trial. The plaintiffs duly fulfilled all the conditions specified in the said letter. The plaintiffs shall also rely on the defendants’ letter dated April 15th, 2011.
14. Having accepted the proposals of the redevelopment of the said Onikan land/facilities, the defendants made a letter dated September 29th, 2010, to his Excellency Governor Babatunde Raji Fashola (SAN) the Executive Governor of Lagos State on the said redevelopment of the Onikan land wherein the parties were introduced as the parties to the defendants. The Lagos State Governor replied the letter written to him by the defendants on this matter. The acknowledgment of this letter was attested to by the defendants in a second letter dated September 27th, 2011, written by the defendants to the Governor of Lagos State. The defendants are hereby given notice to produce the said reply

made by the Governor, Lagos State to its letter of September 29th, 2010, during trial.
15. The conditions which the defendants directed the plaintiffs to fulfil in their letter of August 4th, 2010 headed “Letter of Approval-in-Principle” were onerous and capital intensive. To the appreciation of the defendants, the plaintiffs accomplished all the conditions stipulated in the said letter though at a great cost. In acknowledgment of the plaintiffs’ accomplishments, the defendants then, requested the plaintiffs to make available, proposed draft copies of:
(a) Memorandum of Lease Agreement.
(b) Memorandum of Irrevocable Power of Attorney.
(c) Tripartite Agreement.
The plaintiffs shall found upon the defendants’ letter dated April 15th, 2011, showing among other things the defendants acknowledgment of the plaintiffs’ accomplishments and directing the plaintiffs to make available the documents aforementioned.
16. The plaintiffs immediately proceeded and prepared draft copies of:
(a) Memorandum of Lease Agreement.
(b) Memorandum of Irrevocable Power of Attorney.
(c) Tripartite Agreement.
…”

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From the averments, reproduced above, the respondents relied principally on the memorandum of Lease Agreement, Memorandum of Irrevocable Power of Attorney and Tripartite Agreement, but tendered in the trial Court the following documents:-
1. Memorandum of understanding between Nigerian Air Force Holding Company” and “Nafotel Plc” exhibit “X”.
2. Lease Agreement between “Nigerian Air Force Holding Company” and “Lloyd & Sotheby Consult Plc.” – exhibit “Y”.
3. IRREVOCABLE Power of Attorney with “Nigerian Air Force Foundation Ltd/Gte” as “the donor” and “Nafotel Plc.” as “the done” – exhibit “Z”.
4. Tripartite Agreement between “Nigerian Air Force Foundation Ltd/Gte” and “Nafotel Plc.” and “A Financier” — exhibit “Z1”.

As can be seen from the exhibits referred to above, there is

no certainty as the real parties to the arrangement upon which the respondents hung their claims but one thing is clear that the respondents, by these exhibits, are not parties thereto.

The letters of approval-in-principle pleaded in the further amended statement of claim were admitted by the trial Court as exhibits “E” and “F” and both were addressed to “Lloyd & Sotheby Global Consultant”, which has not been shown to be any of the respondents- the plaintiffs in the lower Court, on record.

The respondents did not appeal against the above finding and they are deemed to have accepted the finding as correct and true. It is now settled law that findings not appealed against are deemed to be correct. See Ejowhomu V. Edok-Eter Mandilas Ltd. (1986) 5 NWLR (Pt. 39) 1; Alhaji Adeyemi v. Chief Olakunrin (1999) 14 NWLR (Pt. 638) 104, (1999) 12 SC 92, (1999) 12 SCNJ 224; Chief Biariko v. Chief Edeh-Ogwuile (2001) 12 NWLR (Pt. 726) 235; Obasi v. Onwuka (1987) 3 NWLR (Pt. 61) 364; Ndiwe v. Okocha (1992) 7 NWLR (Pt. 252) 129; Wike E. Nyesom v. Dakuku A. Peterside (2016) 1 NWLR (Pt. 1492) 71; Col. Mohammed Sambo Dasuki v. Federal Republic of Nigeria

(2018) 10 NWLR (Pt. 1627) 320 and Exxon Mobil Corporation v. HRH Obong (Dr.) Effiong B. Archianga & Ors. (2018) 14 NWLR (Pt. 1639) 229 at 251; per Eko, J.S.C.; where the Supreme Court held:
“I cannot therefore find any fault with the factual statement made by the lower Court that the appellant’s application could not be determined in isolation of its statement of defence. These are issues of fact.
And they are weighty too. Curiously, these adverse findings of fact are not appealed against. They persist and remain binding on the parties; as facts not disputed are taken as admitted or accepted. It is thus evident that the appellant, not challenging the material findings of fact against it, is merely and only engaging itself on purely ancillary issues.”

The life question to be considered and answered is whether or not the trial Court was right to have granted some of the respondents’ claims on the bases of “the letter of approval in principle and the second letter that also calls on a close look at the letters and correspondences between the parties”.

As can be seen from the respondents’ names, none of them is “NAFOTEL

Nigeria Ltd”. “LLOYD & SOTHEBY CONSULT PLC”, nor “NAFOTEL PLC”, the named parties in the said exhibits. Even exhibit “AA” – Lloyd Sotheby Ltd’s certificate of incorporation with Number RC 618174 is not one, and the same certificate of incorporation of “Lloyd & Sotheby Consult Plc.”
It is now settled that there is privity of contract and it is only an injured party to an agreement, which has been breached, who may sue the other party for redress. See Ikpeazu v. A.C.B. Ltd. (1965) NMLR 379; Airoe Construction Co. v. University of Benin (1985) 1 NWLR (Pt. 2) 287; Union Beverages Ltd. v. Pepsicola International Ltd. (1994) 2 SCNJ 157 and N.L.N.G Ltd. v. A.P.I.C. Ltd. (1995) 8 NWLR (Pt. 416) 677.

It is also the law that it is not part of the function of a Court to make agreements for parties or to change the agreements as made by the parties. See African Reinsurance Corporation v. Abate Fantaye (1986) 1 NWLR (Pt. 14) 113; Omega Bank (Nigeria) Plc. v. O.B.C. Ltd. (2005) 6 NWLR (Pt. 928) 547 and Adiele Ihunwo v. Johnson Ihunwo & Ors. (2013) 8 NWLR (Pt. 1357) 550.

To say the least, the respondents’ claims were based on

unrecognized legal foundations and the trial Court had no reason to award any of them, either at law or in equity.

Common sense would have demanded that, before the respondents proceeded to incur the huge expenses, which they claimed to have incurred, they should have had some legal bases for doing so. In this case, I fail to find any legal foundation for the respondents’ claim, which is anchored on a very amorphous understanding between the 1st respondent and the 1st and 2nd appellants.

The trial Court, in granting the respondents’ claims as reproduced earlier in this judgment, appeared to have acted on the basis of mere sentiments or sympathy and not on the facts as presented by the parties. The law is that, judicial decisions or deliberations should not be based on empathy, sentiments or sympathy. See Ezeugo v. Ohanyere (1978) 6-7 SC 171; Oniah v. Onyia (1989) 1 NWLR (Pt. 99) 514;Omole & Sons Ltd. v. Adeyemo (1994) 4 NWLR (Pt. 336) 48; Udosen v. The State (2007) 4 NWLR (Pt. 1023) 125; Suleiman v. C.O.P. (2008) 8 NWLR (Pt. 1089) 298;

Chief Nimi Barigha-Amange v. Hon. Justice M.A.A. Adumein & Anor. (2016) 13 NWLR (Pt. 1530) 349; Olu Ode Okpe v. Fan Milk Plc. & Anor. (2017) 2 NWLR (Pt. 1549) 282 and Christopher David v. Commissioner of Police (2019) 2 NWLR (Pt. 1655) 178.
In the case of Federal Republic of Nigeria v. Senator Adolphus N. Wabara (2013) 5 NWLR (Pt. 1347) 331 at 357 per I. T. Muhammad, J.S.C. (as he then was, now CJN), the Supreme Court stated that:
“…… a Court of law only decides on facts and the law presented before it and not on sentiments.”

I hereby resolve this issue also in favour of the appellants.

In the final resolution of this appeal, I agree with the conclusion of Ike Nzekwe, Esq., learned counsel for the appellants who stated as follows:
“In conclusion we submit as follows:
(a) Federal High Court does not have jurisdiction to entertain cases of simple contracts.
(b) Limited liability companies cannot be regarded as agency of the Federal Government simply because they are owned by the government.
(c) The case as presented by the Respondents at the trial failed to show any sufficient or special interest the Respondents have in the performance of the

duty sought to be enforced.
(d) Exhibits “E” & “F” referred to in paragraph 6.02 above by the trial Court as “letter of approval in principle and the second letter” did not create any enforceable legal relationship between the appellants and the respondents.
(e) There are no evidence placed before the Court to show that the claims awarded by the Court are for expenses the respondents purportedly incurred as a result of directives contained in Exhibits “E” and “F”.

Having resolved all the live issues in favour of the appellants, I hold that this appeal has merit and it is hereby allowed.

The judgment of the trial Court in Suit No. FHC/ABJ/CS/104/2013 delivered on the 17th day of January, 2019, whereby sundry sums of monetary awards were made in favour of the respondents is hereby set aside.

In place of the said judgment, Suit No. FHC/ABJ/CS/104/2013 between: LLOYD & SOTHEBY LTD. & ANOR. V. NIGERIA AIR FORCE FOUNDATION LTD/GTE & 2 ORS. is hereby struck out for want of jurisdiction by the trial Federal High Court.

In case the trial Court had the requisite jurisdiction to entertain Suit No. FHC/ABJ/CS/104/2013

between: LLOYD & SOTHEBY LTD. & ANOR. V. NIGERIA AIR FORCE FOUNDATION LTD/GTE & 2 ORS; the said suit is dismissed in its entirety for being bereft of merit.
The parties are ordered to bear their respective costs.

PETER OLABISI IGE, J.C.A.: I agree.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the advantage of reading in draft, the judgment just delivered by my learned brother, Moore Aseimo Abraham Adumein, J.C.A.

I am in complete agreement with the reasoning and conclusion and equally find the appeal meritorious and abide by the orders made therein.

I make no order as to costs.

Appearances:

Ike Nzekwe, Esq. For Appellant(s)

Chief Okey Obikeze, Esq. and Osita Nwanjo, Esq. For Respondent(s)