STAR FINANCE & PROPERTY LTD. & ANOR v. NIGERIAN DEPOSIT INSURANCE CORPORATION (2012)

STAR FINANCE & PROPERTY LTD. & ANOR v. NIGERIAN DEPOSIT INSURANCE CORPORATION

(2012)LCN/5166(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 22nd day of February, 2012

CA/L/381/2009

RATIO

ON THE DEFINITION OF THE TERM ” MEMORANDUM OF UNDERSTANDING”

Black’s Law Dictionary (Seventh Edition) at page 998 defines Memorandum of Understanding thus: “See Letter of Intent”. On page 916 thereof, the said Letter of Intent equated with Memorandum of Understanding states: – “A written statement detailing the preliminary understanding of parties who plan to enter into a contract or some other agreement; a noncommittal writing preliminary to a contract …” As I had expressed earlier, a Memorandum of Understanding cannot be anything more than a document which contains the preliminary understanding of parties willing to enter into a contract or an agreement subsequently based on those conditions contained in that document. That is my own understanding of the term “Memorandum of understanding”. PER. JOHN INYANG OKORO, J.C.A.

ON THE DEFINITION OF THE TERM “LEASE”

A lease on the other hand has been defined in Osborn’s concise Law Dictionary, 9th Edition p.228 as:
“A grant of exclusive possession of property to last for a term of years or periodic tenancy, usually with the reservation of rent. It is essential that a lease shall specify the period, during which the lease is to endure, and the beginning and end of the term”. PER. JOHN INYANG OKORO, J.C.A.

THE ESSENTIAL INGREDIENTS OF A PERFECT LEASE

LAW OF EVIDENCE: THE EVALUATION OF EVIDENCE

THE POSITION OF THE LAW WHERE PARTIES HAVE EMBODIED THE TERMS OF THEIR CONTRACT IN A WRITTEN DOCUMENT

The general rule is that where parties have embodied the terms of their contract in a written document, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument. See Section 128(1) of the Evidence Act, 2011; UBN v. Ozigi (1994) 3 N.W.L.R. (pt.333) 385; Olaoye v. Balogun (1990) 5 N.W.L.R. (pt.148) 24; Macaulay v. Nal Merchant Bank (1990) 4 N.W.L.R. (pt.144) 283. PER. JOHN INYANG OKORO, J.C.A.

ON THE DEFINITION OF THE TERM ” POSSESSION’

Possession means the exercise of dominion over property, the right under which one may exercise control over something to the exclusion of all others. See Oke v. Oke (Supra). Black’s Learned Dictionary (supra) at page 1163 defines Possession as follows: – “Having control over a thing with the intent to have and to exercise such control. The detention and control, or the manual or ideal custody of anything which may be the subject of property, for one’s use and enjoyment, either as owner or as the proprietor of a qualified right in it, and either held personally or by another who exercises it in one’s place and name. Act or state of possessing”. PER. JOHN INYANG OKORO, J.C.A.

THE POSITION OF THE LAW WHERE A PARTY WHO HAS PAID MONEY TO ANOTHER PERSON FOR A CONSIDERATION THAT HAS TOTALLY FAILED UNDER A CONTRACT

The law is settled that a party who has paid money to another person for a consideration that has totally failed under a contract is entitled to claim the money back from the other party. The Respondent as Liquidator of the defunct Bank is entitled to the refund of the money the bank paid to the Appellants for the lease of office space for which six years after the payment of the first deposit, possession was not given until the Central Bank of Nigeria withdrew the licence of the bank in 2006 due to insolvency partly orchestrated by the 2nd Appellant as a result of “insider-related abuses”. See Haido v. Usman (supra), Okupe v. Laja (1961) All NLR 78; Rowland v. Divall (1923) 2 KB 500; Ebadan v. Uso (1976) U.I.L.R. (pt.11) 205; Jegede v. Giwa (1977) 4 SC 121 at 129-131; Dantata v. Mohammed (2000) 7 N.W.L.R. (pt.664) 176; Igbinoba v. Igbinoba & Ors (2003) 2 N.W.L.R. (pt.806) 39. PER. JOHN INYANG OKORO, J.C.A.

JUSTICES

KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

Between

1. STAR FINANCE & PROPERTY LTD.
2. CHIEF S. O. BAKARE Appellant(s)

AND

NIGERIAN DEPOSIT INSURANCE CORPORATION
(LIQUIDATOR OF METROPOLITAN BANK LTD.) Respondent(s)

JOHN INYANG OKORO, J.C.A. (Delivering the Leading Judgment): The Respondent herein, as Plaintiff instituted this action at the Federal High Court Lagos via a writ of summons and statement of claim filed on 30th October, 2006. The claim against the Appellants as Defendants, jointly and severally was as follows:-
“(a) The sum of N250,000,000.00 (two hundred and fifty, million naira) being the money paid to the 1st Defendant by Metropolitan Bank Ltd., under a Memorandum of Understanding dated 13th May, 2002 for the benefit of Metropolitan Bank Ltd.
(b) Interest thereon at the rate of 21% per annum from 30th of January, 2006 until Judgment is delivered.
(c) Interest on the above amount at 7% per annum from the date of Judgment until liquidated”.

In defence of the action, the Appellants, as Defendants filed a statement of defence and counter-claim wherein they prayed the court for the following reliefs:-
(a) A declaration that a tenancy relationship exists between the 1st Counter Claimant and Metropolitan Bank Ltd. in relation to property situate and lying at Plot 1087 Adeolu Odeku Street, Victoria Island, Lagos.
(b) A declaration that sequel to the tenancy relationship between the 1st Counter-Claimant and Metropolitan Bank Ltd., Metropolitan Bank Ltd., took physical possession of the premises effective from May, 2002.
(c) A declaration that a letter dated the 9th day of June, 2006 written by the Interim Management Team of Metropolitan Bank Ltd. amounts to a breach of contract.
(d) An order of court compelling Metropolitan Bank Ltd. and/or its official liquidator, that is, Nigerian Deposit Insurance Corporation to honour the terms of the subsisting tenancy relationship that exists between Metropolitan Bank Limited and the 1st Counter-Claimant”.

As expected, in response to the statement of defence and counterclaim, the Plaintiff (now Respondent) filed a reply to the counter-claim on 8th February, 2007.
A summary of the facts are that Metropolitan Bank Limited, which had since been liquidated (hereinafter referred to as “the Bank”) and the 1st Appellant signed a Memorandum of Understanding dated the 13th day of May, 2002 under which the 1st Appellant was to grant a lease of some parts of its property situate at No. 1087 Adeola Odeku Street, Victoria Island, Lagos which was at all material times to the institution of this matter, under construction, to the Bank for 5 years to be used by the later as its Corporate Headquarters.
In furtherance of the Memorandum of Understanding, the bank paid the sum of N250,000,000.00 (two hundred and fifty million naira) in five installments to the 1st Appellant as rent for the lease of the property. However, physical possession of the property was not given to the Bank until the revocation of its licence in 2006. The Respondent herein, the Nigerian Deposit Insurance Corporation (NDIC), as liquidator of the defunct bank, brought this action at the Federal High Court to recover the money paid as rent, in order to pay same to the depositors of the bank.
At the trial, each party called a witness to prove their case.

After considering the totality of evidence at its disposal, the learned trial Judge held that the defunct bank did not take possession of the premises and that the parties did not enter into a formal lease agreement. On the counter-claim that certain works were done at the request of the Respondent, the learned trial Judge held that the Appellants failed to lead evidence to establish their claim and so, dismissed the counter-claim. The lower court then entered Judgment for the Respondent as per its statement of claim on 14th January, 2009.

Dissatisfied with the stance of the learned trial Judge, the Appellants filed their Notice of Appeal on 19th January, 2009. However, the Appellants later filed an Amended Notice of Appeal on 4/2/2010 sequel to an order of this court granted on 26/1/10 via a Motion on Notice filed on 13/5/09. The said Amended Notice of Appeal has four grounds of appeal out of which the Appellants have formulated three issues for the determination of this appeal. The issues are:-
“1. Whether the Memorandum of Understanding dated 13th May, 2002 between the 1st Appellant and the defunct Bank is a document evidencing an intention to create a lease or tenancy agreement as between the parties, and whether the said tenancy was actually created.
2. Whether the defunct Metropolitan Bank took possession of the 1st Appellant’s premises situate at No. 1087, Adeola Odeku Street, Victoria Island, Lagos or any part thereof and if so, did that establish the fact of the existence of a tenancy relationship between parties.
3. Whether taking into account the entire circumstances of this case, the 1st Appellant was not entitled to rent for usage of its premises and if yes, whether the 1st Appellant is obliged to make a refund of rent paid by the defunct Bank in view of the existence of a tenancy relationship”.

The Respondent, through its counsel in the brief settled by M. A. Kazeem Esq., formulated three issues also which are quite similar to those of the Appellants, though couched slightly differently. These are the issues:-
“1. Whether the Memorandum of Understanding dated 13th May, 2002, executed by the 1st Appellant and the defunct Metropolitan Bank Ltd. amounted to a lease/tenancy agreement within the contemplation of the parties thereto?
2. Whether the defunct bank took possession of the 1st Appellant’s property situate at No. 1087, Adeola Odeku Street Victoria Island, Lagos within the contemplation of the Memorandum of Understanding?
3. If issue (II) above is resolved in the negative, whether the Respondent is entitled to a refund of the money paid to the Appellants as rent in respect of the said Premises?”

I shall determine this appeal based on the three issues as agreed by both parties.
On the first issue, the learned counsel for the Appellants, who also settled the Appellant’s brief, Tunde Akinrimisi Esq., posed two questions for which he also supplied answers in his submission. The questions are:-
“1. What was the agreement between the Parties as evidenced from the Memorandum of Understanding?
2. From the facts of this case, was a tenancy relationship created?”

On the 1st question, he submitted that the agreement between the parties as evidenced in the Memorandum of Understanding was an “intention of the defunct Bank to lease or rent the 1st Appellants’ property”.
I shall henceforth refer to the Memorandum of Understanding simply as ‘the Memorandum’. Learned counsel submitted that names of the parties, the property intended to be leased and the term were clearly stated in the Memorandum. Also, that the rent payable was stated therein. He then strongly urged this court to hold that “the Memorandum of Understanding clearly incorporated the terms that would guide the tenancy relationship”.

Referring to clause 6 of the Memorandum, he submitted that parties had agreed that during the subsistence of the Memorandum, the 1st Appellant could not part with possession of the part of the property leased by the defunct Bank. Also that although clause 9 of the Memorandum of Understanding states that “the Lessee and the Lessor shall execute a format deed of lease over the demised premises”, it is clear from clause 6 that the property had been leased to the defunct Bank by virtue of signing the Memorandum of Understanding. Therefore, according to learned counsel, the argument that the actualization of the Memorandum of Understanding was futuristic cannot be tenable. He urged this court to hold that the Memorandum of Understanding was not only a confirmed agreement by the parties to enter into a tenancy/lease agreement but it was also evidence of the fact that a lease had been agreed to by parties.

It was further submitted, answering the second question, that it can be reasonably deduced that the defunct Bank was entitled to take possession effective from 13th May, 2002 when the first payment was made. Learned counsel contended that from paragraph 5 of the Respondent’s reply to statement of defence and counter-claim, it is clear that the presence of the defunct Bank in the 1st Appellant’s premises in 2002 is undisputable.

Referring to the cases of Conac Optical Nig. Ltd. v. Akinyede (1995) 6 N.W.L.R. (pt.400) 221 and Oduntola v. Papersack Nig. Ltd. (2006) 18 N.W.L.R. (pt. 1012) 470, learned counsel for the Appellants contended further that a relationship of landlord and tenant is brought into being by an agreement between the landlord and tenant which may be expressed or implied. Also that the essential ingredients of a lease include a lessor and a lessee, a property to be leased, commencement and term of a lease, rent payable, covenant and mode of determination thereof which he opined all existed in the Memorandum of Understanding. Learned counsel further stated that an agreement for a lease is as good as a legal lease, relying on the English case of Walsh v. Lonsdale (1882) 21 Ch.D 9 and the Nigerian case of Okoye v. Nwulu (2001) 11 N.W.L.R. (pt.724) 366. He urged this court to resolve this issue in favour of the Appellants. As would be expected, the learned counsel for the Respondent, M. A. Kazeem Esq. submitted and urged this court to hold that the learned trial Judge rightly held that the Memorandum of Understanding does not constitute a lease, even though the Appellants would have us believe otherwise. That a perusal of the Memorandum clearly and conclusively shows that it was preliminary and anticipatory that a formal lease would be executed in future. Referring to Blacks’ Law Dictionary, with pronunciations, 6th Edition (Centinnial Edition) (1891 – 1991) p.984, Osborn’s Concise Law Dictionary, 9th Edition, Sheila Bone Ed. (Sweet & Maxwell) (2001) p.288, learned counsel gave definitions of what a lease ought to contain being:-
1. The words of the demise
2. It must be a complete agreement
3. There must be an identification of the lessor and lessee
4. The premises and dimensions of the property to be leased
5. The commencement and duration of the term.
It was counsel’s contention that where one of the above ingredients is lacking, the purported lease is rendered invalid. He relies on the cases of Osho v. Foreign Finance Corporation (1991) 4 N.W.L.R. (pt.184) 157 and Okechukwu v. Onuorah (2000) 12 SC (pt.II) 104. Also, S. O. Imhanobe: Understanding Legal Drafting and Conveyancing, 2002 page 203; united Bank for Africa Ltd. v. Tejumola (1986) 4 N.W.L.R. (pt.79) 662 at 664 – 667. On the submission that the Memorandum of Understanding was futuristic, he referred to clause 9 of the Memorandum of Understanding.

Learned counsel for the Respondent further submitted that the property in question was at all material time under construction, which explains why the parties resorted to executing the Memorandum, while envisaging that a formal lease would be entered into upon the completion of the property as indicated in clause 9 to the Memorandum of Understanding. That until the happening of an expected event, no lease can be created if the event fails to happen. He relies on Bosah v. Orji (2002) 6 N.W.L.R. (pt.762) 156 at 157 paragraphs D-E. Also that where parties are not ad idem as to rent, term granted and other issues no tenancy can be created citing the case of Odutola v. Papersack Nig. Ltd. (2006) 18 N.W.L.R. (Pt.1012) 470.
On the case of Walsh v. Lonsdale (supra) and Okoye v. Nwulu (supra) cited by Appellants’ counsel, the Respondents counsel submitted that they do not apply in this case because a lease that is above 3 years must be by deed. That no oral lease can be created where the term is above three years.
Contending further, learned counsel for the Respondents opined that the Memorandum of Understanding does not qualify as a lease because no commencement date for the term was stated relying on the cases of B. Mamfang Nig. Ltd. v. M/S.O.L. Ltd. (2007) 14 N.W.L.R. (pt.1053) 109 and African Coastal Shipping Services Ltd. v. N.P.A. (1973) 3 U.I.L.R. (pt.1) 27.
In conclusion, the learned counsel for the Respondent urged this court to hold that based on paragraph 2 of the recital of the Memorandum of Understanding, clauses 1, 2, 3 and 9 thereof, the lease or tenancy relationship intended to be created by the same was futuristic, mainly because the property to be leased was at all material times under construction. He urged this court to resolve this issue against the Appellants.

In several human relations, parties intending to enter into a contract or an agreement may first declare that intention in a document which they wish to guide them subsequently when they are ready to sign a legally binding contract or an agreement. Such a document expresses the preliminary understanding of parties who plan to enter into a contract or some other agreement. The contents of such a document serves to fix in memory the desire of the parties which is to serve as the basis for a future formal contract of deed. It is my understanding that such a document is usually referred to as Memorandum of Understanding, ‘MOU’ for short. It is not the real agreement but a document guiding the future agreement. Its status is something less than a complete contract. See Black’s Law Dictionary with pronunciations, 6th Edition (Continual Edition 1891 – 1991) P.984.
Black’s Law Dictionary (Seventh Edition) at page 998 defines Memorandum of Understanding thus: “See Letter of Intent”. On page 916 thereof, the said Letter of Intent equated with Memorandum of Understanding states: –
“A written statement detailing the preliminary understanding of parties who plan to enter into a contract or some other agreement; a noncommittal writing preliminary to a contract …”
As I had expressed earlier, a Memorandum of Understanding cannot be anything more than a document which contains the preliminary understanding of parties willing to enter into a contract or an agreement subsequently based on those conditions contained in that document. That is my own understanding of the term “Memorandum of understanding”.

As far back as 1986, the Supreme Court had set the essential ingredients that would make a lease proper. In the case of United Bank of Africa Ltd. v. Tejuniola (1986) 4 N.W.L.R. (pt.79) 662 at 664 – 667, the Apex court held that for a lease to be complete and enforceable, the parties, property, length of the term, rent and date of its commencement must be defined. It also held that it is essential to the validity of a lease that it shall appear either in express term or by reference to some writing which would make it certain or from the language used on when the term is to commence. That there must be a certain ending otherwise it is not a perfect lease.

Also, in 1991, the Apex court emphasized the essential ingredients of a perfect lease in the case of Osho v. Foreign Finance corporation (1991) 4 N.W.L.R. (pt.148) 157 at 193 which was also followed in the year 2000 when it held in Okechukwu v. Onuorah (2000) 12 SC (pt.11) 104 at 108 that a valid lease must contain the following:
1. Words of demise
2. Complete agreement leaving no ambiguity as to its purport
3. The identification of the parties to the agreement
4. The premises must be clearly identified
5. Commencement and the duration of the agreement.
The 6th ingredient must of necessity be that the rent for the demised property must be clearly stated. see also Bosah v. Oji (2002) 6 N.W.L.R. (pt.762) 137, B. Manfang Nig. Ltd. v. M/S Ola Ilemobola Ltd. & 3 Ors. (2007) 14 N.W.L.R (Pt.1053) 109.
The learned counsel for the Appellants had urged this court in his argument to hold that the Memorandum of understanding made by the parties herein on 13th May, 2002 was a lease known to law. He made the same submission at the court below and the learned trial Judge refused to accede to that submission in the following words:-
“I disagree with the Defendants, certainly Memorandum of Understanding cannot be seen to take the place of a formal lease. I am inclined to agree with the Plaintiffs counsel that the Memorandum of Understanding forms the basis of transaction between parties, and represents the agreement between the parties. Let me say that the memorandum does not take the place of lease agreement.
I therefore hold that the agreement between the parties is the Memorandum of Understanding subscribed to by both parties and does not amount to formal lease”.
The Memorandum of Understanding, which is the document in issue can be found on pages 10 – 11 of the record of appeal. It is a document made on 13th day of May, 2002. Clauses three and nine are of interest and I shall reproduce them here for ease of reference.
CLAUSE 3
“That the rent for the said lease shall be as determined and mutually agreed by the parties”.
CLAUSE 9
“The Lessee and the Lessor shall execute a formal Deed of Lease over the demised premises”.
Apart from the two clauses reproduced above, the second recital in the Memorandum of Understanding states that “the said property is at present under construction”. This clearly shows that as at the time the Memorandum of Understanding was signed, there was no ready property capable of being leased. Therefore, the lease was intended to be made on completion of the said building. That is why clause three did not fix rent but merely says that the rent shall be as determined and mutually agreed by the parties. It is trite that for a lease to be valid, the rent payable must be stated in the said document. In the instant document, no rent is stated therein, and as such it, ie the Memorandum of Understanding, does not comply with one of the conditions of a valid lease. See Osho v. Foreign Finance Corporation (Supra); UBA Ltd. v. Tejumola (Supra).
Apart from the fact that no rent is stated in the document, there is no commencement date of the lease. Also, the duration of the term is not stated. Definitely, this document called Memorandum of Understanding cannot be a lease by any stretch of the imagination. African Coastal shipping services Ltd. v. NPA (1973) 3 UILR (pt.1) 27. Clause 9 of the Memorandum of Understanding clearly states that the “Lessee and Lessor shall execute a formal Deed of Lease over the demised premises”‘ As at today, there is no evidence that there has been a formal lease made. For me, I think the Memorandum of Understanding was a mere declaration of intent to enter into a lease agreement between the parties. It is not a lease in itself as virtually all the ingredients of a valid lease are absent in the document.
As I can glean from the Memorandum of Understanding, the clauses and wordings thereof are clear and unambiguous. It is trite that where the words in a statute or document are clear and unambiguous, they must be given their simple, ordinary grammatical meaning and under no circumstances should any additional words be imported into the unless the document would be by the absence of that which is imported impossible to understand. The rationale is that the parties have intended what they have in fact said so that their words must be construed as they stand. See UBN v. Ozigi (1994) 3 N.W.L.R. (pt.333) 385; Owoniboys Technical Services Ltd. v. UBN Ltd. (2003) 15 N.W.L.R. (pt.844) 545. Accordingly, I answer the first issue in the negative. That is to say, that the Memorandum of Understanding dated 13th May 2002 between the 1st Appellant and the defunct bank is a document evidencing an intention to create a lease or tenancy agreement between them. Nothing more, nothing less. The first issue is accordingly resolved against the Appellant.

The second issue is whether the defunct Metropolitan Bank took possession of the 1st Appellant’s premises situate at No. 1087 Adeola Odeku Street, Victoria Island, Lagos or any part thereof and if so, did that establish the fact of the existence of a tenancy relationship between the parties.
As was noted by the learned counsel for the Appellants in the opening statement on this issue, as contained on page 15 of their brief, this issue has been largely dealt with under issue one. However, he refers to paragraphs 4 – 6 of the Respondents’ process headed “Reply to the Defendant’s Statement of Defence and Counter-Claim” dated 8th February, 2007 on pages 39 – 43 of the Record of Appeal and submitted that this is an admission by the Respondent of having taken possession. Also referred to is the Appellants’ process headed “Further Affidavit in Support of Motion on Notice” dated 22nd January, 2009 and exhibits attached thereto on pages 176 to 209 particularly appendix 7 at page 206 of the Record of Appeal. Learned counsel submitted that the Central Bank of Nigeria’s document on page 206 of the record of appeal is not only corroborative, but a clear, unequivocal and direct admission of the fact that when the interim management committee appointed by the CBN took over and managed the affairs of the defunct bank, sequel to its liquidation in January, 2006, the defunct Bank had its computer equipment as reflected on page 206 of the record of appeal, in the 1st Appellants’ premises. Learned counsel submitted that this is an admission relying on the case of ATM Plc v. B.V.T. Ltd. (2007) 1 N.W.L.R. (pt.1015) 259.
Learned counsel for the Appellants further submitted that the Respondent who asserted that they did not take possession of the premises failed to prove same. He who asserts must prove, he concluded and cited the cases of F.I.P.D.C. Nig. Ltd. v. E.A.S. Ltd. (2006) 6 N.W.L.R. (pt.975) 1 and NBA v. Udeagha (2006) 2 N.W.L.R. (pt.994) 436.
He urged this court to hold that the Respondent failed to provide the learned trial Judge with accurate information on the issue of possession and that made the court below to hold that there was no possession. He urged this court to resolve this issue in favour of the Appellants.
Contrary to the views expressed by the learned counsel for the Appellants on this issue, learned counsel for the Respondents submitted that the defunct Bank did not take possession of the 1st Appellants’ property before it ceased to be a going concern when its licence was revoked.
Referring to paragraph 5 of their “Reply and Defence to Counter-Claim” referred to by the Appellants’ counsel, as well as Appendix 7 thereto, he submitted that these documents contain no such thing as an admission of possession by the Bank within the meaning of the memorandum. He opined that by clause 1 of the Memorandum of Understanding, the Bank intended to lease such parts of the multi-storey building of the 1st Appellant under construction for the sole purpose of relocating its corporate headquarters and not merely for storage of software or I.T. Department as alleged by the Appellants. That this is not the kind of possession envisaged under the memorandum. If it was, then a formal lease would have been created over the property as contemplated by the memorandum.
Counsel further referred to Exhibit C, particularly, paragraph 3 thereof and the 2nd Appellants’ reply to Exhibit C and submitted that the only inference that can be drawn from these documents is that of admission that the Bank did not take possession and a refund of its money would be paid to it. He then cited Osborne Concise Dictionary at page 292 and the case of Oke v. Oke (2006) 17 N.W.L.R. (pt.1009) 224 at 242 on the definition of possession and submitted that a mere storage of some software belonging to the Bank on the direction of the 2nd Appellant did not amount to possession under the law.
Furthermore, learned counsel invited this court to appreciate the effort of the learned trial Judge in evaluating the evidence of PW1 and DW1 and her preference for the evidence of PW1 in the circumstance, citing and relying on the cases of C.D.C. Nig. Ltd. v. SCOA Nig. Ltd. (2007) 6 N.W.L.R. (pt.1030) 300; Owners of Gongola Hope v. SC. Nig. Ltd. (2007) 15 N.W.L.R. (pt.1056) 189 and NEPA v. Adesaaji (2002) 17 N.W.L.R. (pt.797) 578.
Learned counsel then urged this court to accept the holding of the court below that the Bank did not take possession of the premises.
Ordinarily, I would have just stated that since there was no lease agreement between the 1st Appellant and the defunct Metropolitan Bank, there was no legal basis for the bank to have been put into possession. If I do that, I would still have done my job. But I intend to do more than that. The documents referred to by the Appellants on pages 39 – 43 and 176 – 209 of the record, particularly appendix 7 thereof on page 206, clearly shows that the defunct Bank kept some I.T. equipment in a Section of the premises in issue. This is clearly admitted by the Respondent. Whereas, the Appellants contend that this is enough to hold that the defunct bank took possession of the premises, the Respondent holds the view that it was a mere storage of some I.T. equipments on the order of the 2nd Appellant who at the time was both the Chairman of the defunct Metropolitan Bank and the Chairman of the 1st Appellant; and that this was not the kind of possession envisaged by the Memorandum of Understanding. Reviewing the evidence relating to this issue, the learned trial Judge on page 154 of the record of appeal states:-
“The next issue is whether Metropolitan Bank Ltd. took possession of the premises. PW1 said the Bank did not take possession of the premises up to the time its operating licence was revoked. Witness said the building was under construction up to the time the Bank went into liquidation.

DW1 said I.T. Department of the Bank moved into the premises kept some computers and later left, locked up the premises. Under cross examination witness said there was no document evidencing taking over of the premises, that DW1 who worked for the Defendants and has office within the same building said she did not give key to the Bank to move in.

I consider the evidence of both PW1 and DW1, I am prepared to accept the evidence of PW1 closing Attorney.
I hold that the Metropolitan Bank did not move into the premises”.

It is trite that evaluation of evidence and ascription of probative value to such evidence are the primary function of a trial court which saw, heard and assessed the witnesses. Where therefore the trial court clearly evaluated the evidence of the parties and justifiably appraised the facts, it is not the business of the appellate court to substitute its own views of the facts for those of the trial court. See NEPA v. Adesaaji (2002) 17 N.W.L.R. (Pt.797) 578 and Ndidi v. The State (2007) 13 N.W.L.R. (pt.1052) 633.
Thus, the court below which saw and heard the two witnesses, after assessing their testimony and credibility, opted to believe the PW1. And in any case, the DW1 clearly stated under cross examination as was found by the learned trial Judge that the keys to the premises were not handed over to the defunct Bank and also that there was no document evidencing transfer of possession. I think the learned trial Judge was right to hold that based on available evidence, possession did not pass to the defunct Bank.
There is evidence that at the time the Bank went under, the building was still under construction even though the Bank had paid a whopping sum of N250m. It is of interest to note that the 2nd Appellant was the former Chairman of the bank and at the same time the Chairman of the 1st Appellant. It was under his watch that this transaction took place. I think he unfairly treated the bank in favour of the 1st Appellant who was managed by his son. This is what is called insider trading, a practice which always leads to the collapse of banks and any other business concerns. I need not say more except to add that the 2nd Appellant ought to do something quickly to alleviate the suffering of the shareholders of the defunct bank rather than dissipate energy to keep the money paid by the defunct bank to his company, the 1st Appellant herein.
The Appellant and the bank made this transaction via a document, the Memorandum of Understanding. The document was meant to guide this transaction. If there was a handing over of possession, it would have been through a formal lease as envisaged by clause 9 of the Memorandum of Understanding. The general rule is that where parties have embodied the terms of their contract in a written document, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument. See Section 128(1) of the Evidence Act, 2011; UBN v. Ozigi (1994) 3 N.W.L.R. (pt.333) 385; Olaoye v. Balogun (1990) 5 N.W.L.R. (pt.148) 24; Macaulay v. Nal Merchant Bank (1990) 4 N.W.L.R. (pt.144) 283.
The Bank’s intention as can be gleaned from the Memorandum of Understanding was to lease the said property to relocate its Operational Headquarters. It was not just to keep some I.T. equipments. Moreso, there is no evidence to show what type of possession was given to the Bank. Was it a room or the entire premises? If, according to the DW1 the keys were not given to the Bank, what then was given? Possession means the exercise of dominion over property, the right under which one may exercise control over something to the exclusion of all others. See Oke v. Oke (Supra).
Black’s Learned Dictionary (supra) at page 1163 defines Possession as follows: –
“Having control over a thing with the intent to have and to exercise such control. The detention and control, or the manual or ideal custody of anything which may be the subject of property, for one’s use and enjoyment, either as owner or as the proprietor of a qualified right in it, and either held personally or by another who exercises it in one’s place and name. Act or state of possessing”.
However one may view it, I am satisfied with the position taken by the court below that possession was never given to the defunct Bank by the 1st Appellant. This is so because, such act of possession as given in evidence by the DW1 was never contemplated under the Memorandum of Understanding. I resolve this issue against the Appellants in the circumstance.
The third and final issue is whether taking into account the entire circumstances of the case, the 1st Appellant was not entitled to rent for usage of its premises and if yes, whether the 1st Appellant is obligated to make a refund of rent paid by the defunct bank in view of the existence of a tenancy relationship. In this issue, the Appellants have repeated their argument in issues one and two as to that there was a proper lease and that there was possession. Therefore, the 1st Appellant was entitled to the N250m rent paid by the defunct bank, he surmised. In paragraph 8-14 of the Appellants’ brief on page 21 thereof, the learned counsel for the Appellants refers to a document on pages 20 – 21 of the record being a letter they wrote to the CBN – IMC Team, being a reply to a letter earlier written the Appellants by the team. Based on that letter, the Appellants submitted in paragraph 8.16 of their brief that:
“Without wasting much time, I humbly submit that the 1st Appellant had no duty and/or obligation in law to make any refund to the defunct bank and by extension, the Respondent’.
Learned counsel added that the 1st Appellant would only be obligated to make a refund if it had rented the defunct bank’s office space to another tenant during the remaining period of the defunct Bank’s tenancy and that would have been a breach of the Memorandum of Understanding between parties dated 13th May, 2002. He urged the court to resolve this issue in favour of the Appellants.
It was the submission of the learned counsel for the Respondent that if this court do uphold issues one and two in their favour, then the Respondent as the Liquidator of the Bank is entitled to recover the money paid as rent to the first Appellant on the ground of failure of consideration. He contended that it could be reasonably inferred from the circumstances of this case that the Memorandum, Exhibit A was properly made in order for the Appellants to obtain the rent from the Bank without and commitment by the Appellants to deliver their own part of the agreement. Learned counsel opined that where consideration has failed, a party who paid money under the contract is entitled to refund, relying on the cases of Haido v. Usman (2004) 3 N.W.L.R. (pt.859) 65; NDIC v. Sherriff (2004) 1 N.W.L.R. (pt.855) 563 at 599.
In conclusion, the learned counsel for the Respondent submitted that the Respondent is entitled to the refund of the rent where the defunct Bank paid a whopping sum of N250million as rent for a property that remained under construction for several years until the revocation of the banking licence of the Bank without being given possession of the premises by the Appellants.
The Appellants referred this court to pages 20 to 21 of the record of appeal which contains their letter to the CBN – IMC Team but I think the letter on page 19 of the record is also relevant. The 1st letter on page 19 emanates from Metropolitan Bank to the Appellants. It states, in part:-
“June 9, 2006
The Chairman
Star Finance & Property Ltd.
Plot 1987, Adeola Odeku Street
Victoria Island
Lagos.
Attention: Chief S. O. Bakare
Dear Sir,
REFUND OF THE SUM OF N250 MILLION PAID AS RENT FOR OFFICE SPACE AT ADEOLA ODEKU STREET, VICTORIA ISLAND, LAGOS.
The above matter refers.
You may recall that beginning from Year 2002, the bank paid to you the cumulative sum of N250Million (two hundred and fifty million naira) only as rent for office space at your multi-storey property situate at Adeola Odeku Street, Victoria Island, Lagos. Payment of the said sum of N250 Million is detailed thus:
a. May 13, 2002 – N20M
b. July 12, 2002 – N50M
c. November 21, 2002 – N80M
d. March 17, 2003 – N70M
e. April 29, 2004 – N30M
Regrettably however, six years after the initial payment was made to you the bank has yet to take possession of the said office space.
You may recall that the Central Bank of Nigeria had in their Examination Report of 28th February 2005 at Paragraph 7.2(vi) (copies of which were duly made available to you, and the contents of which you are aware of as the erstwhile Chairman of the bank) recommended that “… the Chairman should immediately take steps to ensure that the amount of N250 Million which is currently treated as a prepayment in the banks’ books is refunded to the bank…”.
Both the central Bank of Nigeria and the Nigeria Deposit Insurance Corporation respectively viewed those payments to you as improper and inappropriate, and may have been influenced by your position as the former Chairman of the bank. Therefore, the payments are viewed as insider-related abuse.”

The second letter is on pages 20 – 21 of the record and also states in part:-
“June 14, 2006
The CBN-IMC Team,
Metropolitan Bank Limited,
Idowu Taylor Street
Victoria Island,
Lagos.
Attention: Messrs Abubakar M. Bature & Dolapo Atekoje
Sir,
RE: REFUND OF THE SUM OF N250 MILLION PAID AS RENT FOR OFFIE SPACE AT ADEOLA ODEKU STREET, VICTORIA ISLAND, LAGOS
We are writing this letter to acknowledge receipt of your letter dated June 9, 2006 which was received on Wednesday June 14, 2006 in respect of the above subject matter.
We wish to draw your attention to the fact that due to the peculiar nature of banking business and upon request by the Bank the original drawings of the project was adapted/amended and customized to meet the Bank’s special requirement, that is, strong room area, banking hall, IT area, data centre on the ground floor and upper floor. This customization was not part of the original drawing, hence, heavy cost was involved in the adapted drawings which were specifically designed for the Bank usage.
For us to restore the property to its original design, this will involve additional cost and some damage control mechanism. Similarly, you will also recall that since 2002 the Bank has occupied a floor for its use by the IT and Computer Department. These facts could be cross checked in the Bank records for confirmation with respect to correspondence between the Bank and the project consultants.
We have passed the above information to our Consultant to work out the cost implication on the variation and usage of the space by the Bank and we shall get back to you as soon as we have response from them and work out the appropriate balance as refund that will be due to the Bank.
We also wish to draw your attention to the fact that the standard practice in the Real Estate market is that once payment is made for rent, refund of such rent can only be made if a new tenant pays for such floor(s).
As a result, the balance due to the Bank as refund would be made when money is collected from alternate tenants. We hope you will note this accordingly.
Thanks for your cooperation and please acknowledge receipt on the attached copy of this letter.
Yours faithfully,
For: Star Finance & Trusts Co. Ltd.
Signed
Chief S. O. Bakare
Executive Chairman”

As can be clearly seen, the letter of 9th June, 2006 expressly shows and states how the N250 million was paid to the Appellants and that 6 years after the initial payment, the bank was yet to take possession of the said office space. The Appellants in their reply to this letter dated 14th June, 2006, states that they used the money to customize the building to suit the business of the bank. These were issues raised in the counter claim but which the Appellants failed to lead evidence to prove to which the learned trial Judge said:-
“the Defendants filed a counter claim that certain works were done at the request of the Plaintiff, the Defendants failed to lead evidence to establish their claim, I therefore dismiss the counter claim”.
I am not aware of any appeal against the above finding and decision of the learned trial Judge. Having dismissed the counter claim, the content of the letter on pages 20 – 21 of the record is of no moment any more. It is trite that pleadings which no evidence is led goes to no issue. The court below was right to dismiss the counter claim as there was no evidence to sustain it. See CAP Plc v. Vital Investment Ltd. (2006) 6 N.W.L.R. (pt.976) 220. Thus, their letter does not assist the Appellants at all.
The 2nd Appellant was accused in the letter on page 19 of the record of using his position as a former Chairman of the defunct Bank to secure the release of the N250million to the 1st Appellant which he is the Executive Chairman which borders on “insider-related abuse”. This has not been rebutted. This is very unfortunate.
There is no doubt that the consideration for which the sum of N250million was paid by the Bank has completely failed. The law is settled that a party who has paid money to another person for a consideration that has totally failed under a contract is entitled to claim the money back from the other party. The Respondent as Liquidator of the defunct Bank is entitled to the refund of the money the bank paid to the Appellants for the lease of office space for which six years after the payment of the first deposit, possession was not given until the Central Bank of Nigeria withdrew the licence of the bank in 2006 due to insolvency partly orchestrated by the 2nd Appellant as a result of “insider-related abuses”. See Haido v. Usman (supra), Okupe v. Laja (1961) All NLR 78; Rowland v. Divall (1923) 2 KB 500; Ebadan v. Uso (1976) U.I.L.R. (pt.11) 205; Jegede v. Giwa (1977) 4 SC 121 at 129-131; Dantata v. Mohammed (2000) 7 N.W.L.R. (pt.664) 176; Igbinoba v. Igbinoba & Ors (2003) 2 N.W.L.R. (pt.806) 39. This issue, as I see it, does not avail the Appellants at all. It is resolved in favour of the Respondent.

On the whole, having resolved the three issues against the Appellants, I hold that this appeal is devoid of any scintilla of merit and is hereby dismissed. The Judgment of the lower court delivered by Hon. Justice T. Abubakar on 14th January, 2009 is hereby affirmed. The Respondent is entitled to costs which I hereby assess at N50,000.00 in favour of the Respondent.

KUMAI BAYANG AKAAHS, J.C.A.: I read with admirable interest the lead judgement of my learned brother, Okoro JCA with which I totally agree, I have no doubt whatsoever in my mind that the 2nd Appellant, as Chairman of the defunct Metropolitan Bank facilitated the transfer of the whopping sum of N250,000,000.00 toward the construction of Star Finance & Property Ltd., the property being managed by his son. Being a smart alec he turned round to claim that it was upon the request of the bank that the original drawings of the project was amended and customized to meet the Bank’s special requirement of a strong room banking hall. This cock and bull story was manufactured by him to avoid paying back the money he had employed his vantage position to siphon away to finance the construction of Star Finance & Property Limited. The learned trial Judge saw through the falsehood of the 2nd appellant and believed the evidence of PW1 to the effect that the building was still under construction up to the time the Bank went into liquidation and the Bank never took possession of the premises up to the time its operating license was revoked. My learned brother, Okoro JCA conscientiously considered seriatim, the issues raised in the appeal and came to the inevitable conclusion that the appeal is totally lacking in merit and should be dismissed. I agree entirely with his reasoning and conclusion.
I wish to strongly recommend that the activities of people such as the 2nd appellant should attract more than a passing interest by the E.F.C.C. because such activities must have contributed to the liquidation of many a bank and have consequently been greatly responsible for the collapse of the economy of this country.
I accordingly dismiss the appeal and abide by the order made as to costs.

SIDI DAUDA BAGE, J.C.A.: I have been opportuned to read in draft the judgment just delivered by my learned brother OKORO, JCA and I agree with both his reasoning and conclusions. This judgment is most meticulous and extremely detailed and I have nothing useful to add. I too dismiss the appeal with N50,000.00 costs to the Respondent.

Appearances

Akintunde Akinrimisi Esq. with Foluke Olubiyo (Miss) and Yeside Ayeni-Idahosa (Mrs.)For Appellant

AND

M. Adeniyi Kazeem Esq. with Adebiyi Adewale Esq. and Olakunle Olanrewaji Esq.For Respondent