MAIN JUDGMENT

TINUADE AKOMOLAFE-WILSON, J.C.A. (Delivering the Leading Judgment):

This is an appeal against the decision of the Honourable Justice A. A. Banjoko of the Federal Capital Territory (FCT), Abuja Division, delivered on 29th April 2009; wherein the Appellant's case was dismissed in its entirety.

On 31st May 2007, the Appellant as Plaintiff instituted an action against the Respondents for the following reliefs:

(a)    An order of interim and interlocutory injunctions restraining the defendants, their privies agents, assigns or anyone acting for or on their behalf from evicting the plaintiff from her house of Plot 563, Flat 2 Durban Street, Wuse II Abuja ("the House").

(b)     A declaration that the plaintiff is the only valid and lawful buyer/owner of the aforesaid House.

(c)    An order compelling the defendants to conclude the purchase and transfer of title of the House by/or the plaintiff.

(d)   An order of perpetual injunction restraining the defendants, their privies agents, assigns or anyone acting for or on their behalf from disturbing and howsoever interfering with the ownership title and occupation of the House by the plaintiff.

The Appellant simultaneously filed an application for interlocutory injunction restraining the Respondents which was refused by the lower court which instead ordered accelerated hearing. However, during the pendency of the case, unknown to the court, the Appellant was ejected and the property in dispute was re-allocated to one Mrs. Ajomobi, a co-tenant/occupant of the property.

The Appellant's case is that sometime in April 2005, she applied and was given a right of refusal offer of sale of the house in dispute by the Respondents for the sum of N3, 500,000. She made the first installment payment of 10% of N350, 000.00. However, by a letter dated 26th March 2006, she received a letter from the Respondents inviting her to clarify certain pertinent issues concerning the transaction. According to her, she met with one Abass Umar (an officer of Ad-HOC Committee for the Sale of FGN Houses - an agency of the Respondents) who hinted her that the problem had to do with her retention of an official government house in Lagos and advised her to relinquish it for her to be eligible for the house in Abuja in accordance with the guidelines governing the sale of FGN houses, which she claimed not to be aware of. Despite her relinquishment of the Lagos property and further payment of second 10% installment and the procurement of a loan of N2,800,000 from Aso Savings to complete the purchase of the house the offer was eventually withdrawn, thereby invalidating the Appellant's purchase of the house. She contended that all her plea to the Respondents to rescind its decision was futile hence this suit.

It was the Respondents' case that sometimes in March 2005, a committee was set up to dispose off some of Federal Government properties and a guideline, Exhibit Q was published and gazetted to that effect, 'Clause 10' of which excludes Lagos FGN house owners from buying FGN houses in Abuja. When the Committee discovered that the Appellant was still retaining her apartment in Lagos at the time of the offer for the purchase of the Abuja house, they were compelled to terminate the offer of first refusal made to the Appellant for the purchase of the Abuja house.

The Appellant, dissatisfied with the dismissal of her case by the lower court, filed a Notice of Appeal containing four grounds.

In accordance with the rules of this court, parties filed their briefs of argument. The Appellant, in her brief, settled by Baba-Panya Musa, formulated four issues for determination, namely –

1.    WHETHER THE LETTER OF OFFER (EXHIBIT B) WAS A CONDITIONAL OFFER AND IF NOT WHETHER THE SAID THE LEASE (LETTER OF OFFER) IS EX-FACIE NOT ILLEGAL BUT VALID AND ENFORCEABLE CONTRACT.

2.     WHAT IS THE LEGAL STATUS AND EFFECT OF EXHIBIT Q (APPROVED GUIDELINES) UPON THE CONTRACT BETWEEN THE PARTIES?
 

3.      WHETHER THE LTJ CAN MAKE A CASE OTHER THAN THAT PUT FORWARD BY THE PARTIES.

4.      WHETHER THE JUDGMENT OF TRIAL COURT IS SUPPORTED BY EVIDENCE ADDUCED AT TRIAL.

In the joint brief of argument of 1st and 2nd Respondents prepared by Olumuyiwa Akinboro, three issues were drafted for determination. –

1.     Whether exhibit Q (Guidelines) as published formed the basis of the contract between the Appellant and if it does, what is the effect of non-compliance with same on the sale of Plot 565, Flat 2, Durban Street, Wuse II, Abuja.
 

2.     Whether Exhibit B (letter of offer) can be validly accepted with compliance with Exhibit Q and in view of suppression of material fact by the Appellant.
 

3.     Whether the Appellant has established her case on the preponderance of evidence adduced before the court.

The issues formulated by both parties are similar. However, the Appellant's issues 3 and 4 can be subsumed in the Respondents' issue three. I will therefore adopt the Appellant's Issues one and two and the Respondent's issue three for the determination of this appeal.

Issue One and Two

WHETHER THE LETTER OF OFFER (EXHIBIT B) WAS A CONDITIONAL OFFER AND IF NOT WHETHER THE SAID THE LEASE (LETTER OF OFFER) IS EX-FACIE NOT ILLEGAL BUT VALID AND ENFORCEABLE CONTRACT.

The learned counsel for the Appellant, while reproducing the relevant clauses of Exhibit B submitted forcefully that there are two distinct conditions prescribed therein. According to him, the first condition pertains to the "offer" itself while the second condition concerns the "purchase of the property under offer." Counsel contends that the two conditions are –

"1.     The Letter of Offer (Exhibit B) was made conditional only to the Acceptance by execution of same and returning of duplicate within 14 business days from the date thereof.

2.    The Acceptance of the Offer makes the Offer a binding contract between the parties obligating the Lessee to fulfilling other conditions precedent for the purchase of the Property. These conditions were the payment of the price within the timeline so stipulated as well as acceptance for the purchase to be regulated by other covenants to be prescribed in a Deed of Lease or imposed by law."

It is counsel's contention that Exhibit B was not a conditional offer subject to Exhibit Q rather that Exhibit B was properly accepted by complying with the condition of returning the letter of offer along with non-refundable deposit thus a binding agreement - consummate contract legally been reached between the parties. Any attempt to withdraw Exhibit B, he argued would constitute a breach of contract. He submitted that once there is an offer and acceptance coupled with consideration - Dankula v. Shagamu (2008) 27 WRN 107 at 114, Thomas v. Olufosoye (2004) 49 WRN 37 at 52. The learned trial Judge he submitted was "rewriting the contract for the parties" which he had no power to do by imputing clause 2 of Exhibit B to pertain to 'pre-existing terms and conditions'. The duty of the court he argued strenuously is to interprete the contract between the parties and not to formulate one - DSADP v. Ofonye (2007) 47 WRN 35 at 38; Abuja v. Trans-National Mkt v. Abdu (2008) 1 WRN 43 at 54.

On Issue two, it was contended for the Appellant that Exhibit Q is mere guidelines which does not have the force of law and cannot therefore invalidate a binding contract. Without conceding, it was further argued that assuming Exhibit Q has the status of law, it can still not invalidate the contract because the contract ex facie is not illegal and the issue of illegality was not pleaded by the Respondent - WCC Ltd v. Batallha (2006) 40 WRN 97 at p.100. The averment that the application of the Appellant [is] "wrong", he submitted, is not tantamount to illegality.

In response to issues one and two, the learned counsel for the Respondents re-stated the necessary ingredients for a valid contract as enunciated in the case of Omega Bank (Nig) PLC v. O.B.C. Ltd (2005) 8 NWLR (pt. 928) 547 at 552 whole submitting that Exhibit B, the letter of offer was invalid ab initio for failure to comply with the prerequisites for a valid acceptance. He referred to clause 2 in Exhibit B which stipulated that the "Lessee shall purchase the property subject to any conditions contained in a Deed of lease or imposed law." According to him, Exhibit Q is law within the provisions of clause 2 of Exhibit B. In response to Appellant's submission that Exhibit Q is mere guidelines with no force of law, Mr. Akinboro submits thus –

"... Section 14 of the Act empowers the President to make regulations generally for carrying into effect the provisions of this Act and the President in Section 18 of the Act delegates to the Minister of Federal Capital Territory power exercisable by him. Exhibit Q was made by the Minister of Federal Capital Territory pursuant to the powers conferred on him by Section 18 of the Act. Thus, the guidelines having been made pursuant to an Act of National Assembly qualifies as law for the purpose of Clause 2 of Exhibit B. Having said this, the validity of Exhibit B is subject to the condition precedent contained in Clause 10 of Exhibit Q."

It is the Respondents' contention that the failure of the Appellant to disclose the fact of her owning a house in Lagos amounts to non-disclosure of material fact which ab initio constitutes a fraudulent misrepresentation thereby rendering the contract of sale voidable at the instance of the innocent party, the Respondents. The Appellant's contention that her application predated Exhibit Q cannot avail her for failure to tender her application presupposes that same is adverse to her claim. He relied on Section 148(d) of the Evidence Act and Agbi v. Ogbe (2005) 8 NWLR (Pt 926) 40 at 66. So also is the failure to call Abass Umar whom Appellant said advised her to relinquish the house in Lagos in order to complete the process of the purchase of the disputed house in Abuja. Apart from this, the Respondents also contend that Appellant's testimony concerning relinquishing her house in Lagos is contradictory. In one breadth she said she relinquished it based on Abass's advice while in the other she said it was to reduce her risk of travelling to Lagos frequently. A party who adduces inconsistent evidence damages his case - Al-Rissach P.P. Co. Ltd v El-Houssein (2008) 14 WRN 28 at 85.

Issue Three

WHETHER THE APPELLANT HAS ESTABLISHED HER CASE ON THE PREPONDERANCE OF EVIDENCE.

As said earlier, the Appellant's issues 3 and 4 are subsumed in the issue quoted above. The argument on both issues in my view are summarized under their issue four thus –

"1.   Plaintiff/Appellant's counsel canvassed Exhibit Q not to carry the force of law as to invalidate (make illegal) the contract between parties but Learned Trial judge decided otherwise even though she aligned with plaintiff/appellant's position.
 

2.     Plaintiff/appellant canvassed Exhibit Q being a mere guidelines (and not law) it could be waived as did (Abass Umar) defendant/respondent but LTJ decided otherwise and ruled that its breach was fatal and incurable as Abass Umar no matter his position could not override it.

3.   The plank of defendant/respondent's case was that the contract was tainted with illegality by the disqualification of plaintiff/appellant by the provisions of a law (Exhibit Q-guidelines). They however failed to plead 'illegality' or prove it as required by case law.

4.    The strength of defendant/respondent case was premised upon the fact that plaintiff/appellant was required or expected to disclose her previous ownership of a Fed. Govt. property (Lagos house). This was pleaded and argued but no evidence led to prove such averment.

5.     Defendant/Respondent equally averred and canvassed plaintiff/appellant to have known of the existence of Exhibit Q at the time of her expression of interest in April 2005, but evidence adduced shows Exhibit Q to have been published in August 2005, some 4 good months subsequent to plaintiff's said application.
 

6.     The LTJ disregarded the clear and positive evidence (both uncontroverted viva-voce and Exhibit N) that the relinquishment of Lagos house by plaintiff/appellant was suborned by defendant/respondent (Abass Umar) and accordingly sustaining the argument of 'promissory estoppels and waiver'. The LTJ rather chose to speculate the lack of such proof as per her reference to the contents or lack of it of Exhibit J.

7.   The LTJ fatally disregarded the clear and positive evidence of the legal rights of lawful occupation possession of property including contractual acquisition of same by plaintiff/appellant as against the illegality of her (lock out) and eventual forcible eviction from her own property under surreptitious circumstances and whilst the suit was still pending (lis pendis). It is this error that led the LTJ to decide that plaintiff/appellant's locked out or eviction tantamount a completed act for which there was no relief.

7.2   In addition to arguments supporting the preceding 3 Grounds of Appeal, the several and joint effect of the foregoing particulars inevitably led the LTJ to a perverse judgment. And it is trite that a perverse judgment is a justifiable reason for an appellate court like this one to interfere with the judgment of a trial court and replace same with an appropriate and just decision. We respectfully call on this honourable court to do likewise."

The Respondents in responding to issue 3 also practically summarized the arguments on issues one and two. The totality of the submission is to the effect that it is the duty of the Appellant to succeed on the strength of her case and not to rely on the weakness of the Respondent's case but she totally failed to prove her case before the lower court - Agbara v. Owa (2004) 13 NWLR (pt 889) 2 at p. 4.

In my view, the main issue in this appeal is very narrow. The fulcrum of this case is whether there was a valid contract between the parties that was unlawfully repudiated by the Respondents. This being the case, I will take all the issues together.

There are five important elements that must be represented and established for a valid contract. There are –

(a)     Offer
 

(b)     Acceptance
 

(c)     Consideration
 

(d)     Intention to create legal relations

(e)     Capacity to contract.

All these five attributes must co-exist before as a contract cannot be formed if any of the ingredients is absent. - Orient Bank (Nig) PLC v. Bilante Int'l Ltd (1997) 8 NWLR (pt. 515) 37 at 76 paras B-C; Green Finger Agro-Ind Ltd v. Yusuf (2003) 12 NWLR (Pt. 835) 488 at 508, Omega Bank (Nig) PLC v. O.B.C. Ltd (2005) 8 NWLR (Pt. 928) 547, Amana Suites Hotels Ltd v. PDP (2007) 6 NWLR (Pt. 1031) 453, Yaro v. Arewa Const. Ltd (2007) 17 NWLR (Pt. 1063) 333 at 377- 378.

The crux of this appeal revolves around the first two ingredients - offer and acceptance. The starting point of any contract is an offer. This preceeds an acceptance. It is a firmly established principle of law that before any contract or agreement can be said to have come into existence, there must be a clear, unmistaken and precise offer and an unconditional acceptance of the terms of the offer as spelt out by the offeror. The parties must unquestionably be in agreement, as the dictum says parties must be in consensus ad idem concerning the terms and conditions agreed upon by the parties - Amana Suites Hotels Ltd v. PDP (2007) 6 NWLR (Pt 1031) 453 at 484; Sona Breweries PLC v. Peters (2005) 1 NWLR (Pt 908) 478 at 488.

The letter of offer for the purchase of the house is at pages 33-36 of the Record of Appeal. For ease of reference, relevant portions are reproduced hereunder –

"Letter of Offer

We refer to your Expression of Interest to purchase the property owned by the Federal Government of Nigeria situate at Plot 563 Flat 2 Durban Wuse 2, Abuja, FCT and more particularly described in 'Schedule A" hereto, together with all appurtenances, rights, rights of way, easements, reversionary rights and privileges related thereto ("the property") and are pleased to offer the Property to you for sale as herein indicated.

This letter shall constitute the Terms of Offer from the Federal Capital Development Authority (FCDA) on behalf of the Federal Government of Nigeria ("the Lessor"), and upon execution, the Acceptance by you (the "Lessee") to purchase the Property from the Lessor, on such terms and conditions as are more particularly set forth below:
 

1.    The Lessee shall signify acceptance of this letter and the Terms contained herein, by the execution of same and the enclosed duplicate, within a period of Fourteen (14) days from the date hereof.

2.    At the Closing Date as hereinafter defined under Clause 5(a) the Lessee shall purchase the Property, subject to any conditions contained in a Deed of Lease or imposed by any law.

3.    The purchase price of the Property shall be N3, 500,000 (Three Million Five Hundred Thousand Naira only) payable in no more than three installments, each by bank draft as follows:

a.     The enclosure of a bank draft, with the executed duplicate copy of this letter, in the sum of N350,000 (Three Hundred and Fifty Thousand Naira only), representing 10% of the aforementioned purchase price, being a non-refundable deposit for the purchase of the Property
 

b.     the payment of a sum not less than 10% of the said purchase price, within Ninety (90) days of the payment under (a) above; and
 

c.     the full and final payment of the balance of the purchase price due, within a period of Ninety (90) days of the payment made under (b) above.
 

d.     The Lessor shall not grant any extension of the timelines stated herein.
 

PROVIDED HOWEVER THAT the Lessee shall be at liberty to make any of the aforementioned payments, including the full and final payment at any time before the Closing date, and in that instance, may make the full payment in one (1) or two (2) installments.
 

4.       In the event of the Lessee failing to comply with the payment terms outlined in (3) above, this transaction shall be voided and the Lessee shall forfeit to the Lessor, the initial deposit of 10% and in addition thereto, (s)he shall be responsible for the payment of all costs and charges associated with the transaction.
 

5.       The Lessee's acceptance of this Letter shall constitute an undertaking on his/her part that:

a.    (s)he shall pay the full purchase price, as stipulated in (3) above, being the current valuation of the Property, within a total period of One Hundred and Ninety-four (194) days of this Letter, being the "Closing Date", and in accordance with the timelines stipulated in (3) above;
 

b.     where pertinent and at the Closing Date, all common areas and shared facilities (such as in premises of estates, block of flats, terrace houses, etc) shall be the joint responsibility of the bona fide co-purchasers for value, for purposes including, without limitation, cooperation for obtaining all such approvals and licenses are necessary, facility management, insurance, taxation, charges, utilities, safety, maintenance, public use and liability and such other necessary incidentals;
 

c.     (s)he shall abide by all relevant planning, environmental, health and safety laws, rules and regulations, including but not limited to all conditions, which may from time to time be required and or stipulated by the FCDA or other Municipal Administration; and
 

d.    (s)he shall adhere strictly to developmental control standards and use his/her best and reasonable endeavors to ensure that no additional structures are erected without the written approval of the Development Control Department of the FCDA.
 

6.       The Lessee hereby agrees and understands that time is of the essence in the performance of each of the conditions aforementioned, which conditions constitute valid and binding obligations enforceable according to the terms set out.

7.    This letter, and the obligations therein contained, shall be governed and construed by and in accordance with the Laws of the Federal Republic of Nigeria.
 

Kindly indicate your acceptance of this offer by executing this Letter (and the duplicate enclosed herewith), dating same in the space provided therefore, and returning same along with the non-refundable deposit to the Ad-Hoc Committee on the Sale of FGN Houses, Room 109, Ministers Block, FCDA Secretariat, Area 11 Garki, at which time the Offer and Acceptance become a binding agreement, in commitment to the fulfillment of the conditions precedent.
 

The Offer shall be deemed to have been withdrawn at the close of business or the Fourteenth (14th) day following the date hereof, unless prior thereto, the Lessor shall have received a written, valid Acceptance, in satisfaction of all conditions precedent, from the Lessee."

It is crystal clear from the wordings of Exhibit B that the offer is subject to fulfillment of some conditions. It is therefore a conditional offer. This much was admitted by the Appellant. However, his argument is that the first condition is limited only to accepting the offer by returning the acceptance forms within the 14 days prescribed period, in my view is fallacious. Mere acceptance of the offer by returning the duplicate copy attached to Exhibit B within the 14 days simplicita, does not amount to a binding contract between the parties.

The "offer" cannot stand in vacuo. It is an offer for the purchase of a property hence all the conditions for the purchase of the property must be read together and complied with before it can be said that there is valid offer, properly accepted and a legally binding contract between the parties. The condition for the purchase of the property cannot stand on its own as contended by the Appellant. The offer conveyed to the Appellant by Exhibit B includes convenience prescribed in a Deed of Lease or "imposed by law".

The learned counsel for the Appellant has argued vehemently that at the time the Appellant forwarded her expression of interest for the purchase of the property Exhibit Q, the guidelines had not been published. The Appellant he argued could not at that time have been aware of clause of Exhibit B that an occupier of a house in Lagos is excluded for bidding for the purchase of any property in Abuja. That maybe so if proved.

The Appellant was the plaintiff at the lower court. In civil cases, the onus of proof is placed on the Plaintiff. He is to prove his case by preponderance of evidence. The Plaintiff is to rely on the strength of his own case and not to depend on the weakness of the defendant's case. It is his duty to plead and prove every material fact that is necessary by credible audience for the success of his case.

In civil action, pleadings of parties form the bedrock of their claims before the court. Parties will not be allowed to lead evidence on matters not pleaded. Parties are therefore bound by their pleadings –

The issue of the persons qualified to purchase property in Abuja is a very relevant fact in the case before the court. Thus it is very material for the Plaintiff to plead and prove the fact of whether she was aware of the terms and conditions in the offer before she applied for the purchase of the property in Lagos. By the provisions of Section 136(1) of the Evidence Act –

"The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence..."

See Adighije v. Nwaogu (2011) 12 NWLR (Pt. 1207) 419 at 457-458. The burden of proof is placed on the Appellant to plead and prove that before her expression of interest to purchase the House, she was not aware of the guidelines that is Exhibit Q. This she pleaded in paragraph 19 of her statement of claim -
 

"The Plaintiff avers that she does not, either now or before her expression of interest to purchase the House, know of any, such 'guidelines' alluded to in (sic) by defendants in their letter aforesaid."

The Respondents in their Statement of Defence joined issues on this fact with the Appellant. By their paragraph 2 of the Statement of Defence, they denied inter alia, paragraph 19 of the Statement of Claim and put the Plaintiff to the strictest proof thereof. Apart from this, they made some specific averments to the effect that the Appellant ought not to have applied for a house in Abuja since she was occupying Government Quarters in Lagos, See paragraphs 3(h), (i), (j) and (k) reproduced hereunder for ease of reference.

"3(h) That at the time when the offer was made to the Plaintiff, the Adhoc committee on Sale of Federal Government Houses had no knowledge that the Plaintiff was in occupation of Government Quarters in Lagos, as the Plaintiff did not disclose this to the Committee as was expected of her.
 

(i)    That clause 10 of the approved guidelines for the sale of Federal Government Houses in the FCT to Career Public Servants clearly stipulates that each and every public servant shall be entitled to purchase only on residential until whilst any and all allocated and occupying government houses in Lagos are specifically excluded from purchasing houses in the FCT. The said Approved guidelines is hereby pleaded.

(j)      That in line with the guidelines referred to in paragraph i above, the Plaintiff ought not to have applied for a house in Abuja since she is occupying Government Quarters in Lagos. Her application was therefore wrong.
 

(k)     The Ad hoc Committee on Sale of Federal Government Houses, having discovered the dual interest of the Plaintiff in both official residences, therefore withdrew the Plaintiffs offer."

Despite these specific, immaterial and incriminating pleadings of the Respondents, the Appellant did not file a Reply to plead the specific date she forwarded her application of interest to the Respondents. This is pertinent especially because her pleading as to when she made her application in paragraph 6 of her Statement of Claim is vague. Paragraph 6 states thus –

"6.     Plaintiff avers that sometime in 2005 when the sale of Federal Government properties commenced, she applied to buy the entire flat, i.e. Flat 2, Plot 563, Durban Street, Wuse II Abuja ('the House').

Worse still, even though in her evidence, the Appellant testified that she has her copy of the application sent to FCDA (Respondents) she never tendered it! (See last line of page 99 of the Record of Appeal). It is obvious that the production of the Appellant's application is crucial to her case; yet she failed to tender it. The presumption of intention of parties is that a man is presumed to intend all the consequences likely to flow from his conduct. If some evidence is material to a party's case and he is in a position to produce the evidence and he fails to do so, then it is deemed that his failure to produce same is an intended and premeditated act because the evidence if so produced will be adverse to his case. Section 148(d) of Evidence Act now Section 167 (d) of Evidence Act, 2011 provides -
 

"The Court may presume the existence of any fact which it deems likely to have happened, regard shall be had to the common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case, and in particular case, and in particular the court may presume that –

(d)     that the evidence which could be and is not produced would if produced be unfavourable to the person who withholds it."
 

I am in agreement with the submission of the Respondents that failure to tender the application presupposes that same would have been adverse to her claim if tendered. In the cited case of Agbi v. Ogbeh (supra) the Court of Appeal held thus -
 

"By virtue of S. 149 (d) of Evidence Act, any evidence which could be produced by a party but is not produced, would be presumed to be unfavourable to the party who failed to produce the evidence, more so, if the evidence is crucial to the case that would clarify whatever ambiguities which may exist in the case and the failure to adduce the evidence is not explained."

At this juncture, it is necessary to set out some salient CLAUSES in the guidelines, Exhibit Q (pages 63-65 of the Records)

FEDERAL CAPITAL TERRITORY ADMINISTRATION (OFFICE OF THE PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA)

CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999
FEDERAL CAPITAL TERRITORY ACT CAP. F6, LFN 2004 PUBLIC NOTICE NO. 1

Approved Guidelines for the sale of Federal Government Houses in the FCT to Career Public Servants

Preamble
 

1.       The Federal Executive Counsel has approved guidelines for the sale of ALL RESIDENTIAL FACILITIES (houses, flats, etc) built, acquired or otherwise owned by the Federal Government and ALL its ministries, departments and agencies except those listed in paragraph 4 below.
...

5.       The houses will be sold on "as is, where is" basis at the evaluated price with the current occupants having the first right of refusal to purchase within thirty days of offer. The said right to purchase is neither transferable, assignable nor alienable in any way or form.
...

a.       Sale of houses will be advertised and application fees of N10, 000.00 (Ten Thousand Naira Only) must accompany each FREE application form, payable at designated banks. The banks will remit all proceeds to a dedicated account in the name of the Federal Government of Nigeria with the Central Bank of Nigeria.
...

10.     Each and every public servant shall be entitled to purchase only one residential unit with any and all allocated or occupying government houses in Lagos are specifically excluded from purchasing houses in the Federal Capital Territory.
...

12.     A purchaser must complete application forms with receipt of payment of N10,000 in favour of the Federal Capital Territory Administration along with the following:

(a)     Letter of initial employment into the Public Service of the Federation,
 

(b)     Letter of last appointment/promotion in the Public Service of the Federation,
 

(c)     Letter of allocation of quarters by an Appropriate Authority,
 

(d)     4 No. high resolution colour Passport Photographs, and
 

(e)     Proof of last 6 (Six) Months Rent Deduction.
 

13.     25 percent of purchase price (including non-refundable deposit of 10 percent), up to a maximum of N5 million (National Housing Fund lending limit), must be paid to the Federal Government of Nigeria within 90 days.
 

14.     Balance of 75 percent must be paid by all purchasers within an additional 90 days; thus, all purchasers must effect full payment within 180 days of contract.
 

15.     The transaction shall be concluded within 210 days of an offer to the allottee, occupant or successful bidder as applicable.

Exhibit Q is dated 1st April 2005. It is noted from records, pleadings and evidence that the Appellant complied with all the other "conditions of sale" apart from clause 10 which made her not qualified for the purchase of any house in Abuja, because of the quarters allocated to her in Lagos since 1997 (see paragraph 4 of her statement of claim at p. 3 of the Records). It is thus significant to note that the Appellant had all along been living in Lagos but out of compassion, the office allocated a single room in a 3 bedroom flat at Plot 563, Durban Street, Wuse II, Abuja, the House in dispute when she was transferred to Abuja (see p. 3 paragraph 5 and 6 of the Statement of Claim at page 3 of the Record). It was therefore in line with clause 6 of Exhibit Q which stated that "the houses will be sold on, as is, where is basis at the evaluated price with the current occupants having the first right of refusal..." That made the Applicant applied for this House. The only logical deduction that can be made is that the Appellant was aware of the guidelines in Exhibit Q, which is dated 1st April 2005, before she forwarded her application to the Respondents. As submitted by Mr. Akinboro, it is the publication of the guidelines that brought the existence of the Scheme to the knowledge of the Appellant and it was also pursuant to same that the Appellant applied and paid the prescribed application fee and non refundable deposit of 10% of purchase price and subsequent payments in compliance with Clauses 8, 12, 13, 14 and 15 of Exhibit Q.

STATUS OF EXHIBIT Q

As stated earlier, the letter of offer is a conditional offer. Clause 2 of Exhibit import "Conditions... imposed by any law." Exhibit Q for the purposes of the sale of Government properties is the law referred to in Clause 2 of Exhibit B. Learned counsel for the Appellant made a heavy weather on Exhibit Q contending that it is not law and it does not have the force of law therefore it has no invalidating effect on the contract. I do not agree with him. The heading of Exhibit Q evinces the fact that Exhibit Q is an instrument of law. The relevant portions of Exhibit Q, which includes the heading have been reproduced earlier. A glance at same shows that Exhibit Q, which is "PUBLIC NOTICE NO 1" has as its heading - "FEDERAL CAPITAL TERRITORY ACT, CAP. F6, LFN 2004," which is its enabling law. As rightly expatiated by Akinboro Section 14 of FCT, Act empowers the President to make regulations generally for carrying into effect the provisions of FCT Act. These powers were delegated by the President to the Minister of Federal Capital by S. 18 of the Act. These guidelines published as "PUBLIC NOTICE NO 1" - Exhibit Q, were made by the Minister pursuant to the powers conferred on him by Section 18 of the FCT Act. The Interpretation Act, Cap 192, LFN 1990 defines law to include instrument made under a law-

"Means any law enacted or having effect as if enacted by the Legislative of a State and includes any instrument having the force of law which is made under a law."

The Black Law Dictionary (6th Edition) at page 884, inter alia defines law thus -
 

"Law, in its generic sense, is a body of rules of action or conduct prescribed by controlling authority, and having binding legal force...."
"The word may mean or embrace body of principles, standards and rules promulgated by government...."

However, whether Exhibit Q is law in the strict sense of it or not is immaterial. The whole argument of the learned counsel for the Appellant is that Exhibit Q not having the force of law cannot invalidate the contract since the contract was not illegal ex-facie. This submission in my opinion is of no moment. The court did not hold that the contract was tainted with illegality by the disqualification of the Appellant by the provisions of Exhibit Q. what the court held is that Exhibit B, the contract between the parties was made subject to the provisions of Exhibit Q. the holding of the learned trial Judge at page 123 lines 10-12
 

"....the Plaintiff is presumed to be aware that her bid made sometime in April 2005 had been automatically invalidated by the terms as contained in the guidelines as published."

The cases of WCC's Ltd v. Batalha (2006) 40 WRN 97 at 100 and Total Nig Plc v. Ajayi (2004) 22 WRN 16 cited by Mr Musa for the Appellant is therefore inapposite to the facts of this case.

What is paramount is that from the facts of this case, Exhibit B is a condition precedent to valid acceptance of the offer in Exhibit B. It is one of the pre-existing terms and conditions to be complied with in Exhibit B and not a subsequent condition or futuristic condition as contended by the Appellant. The fact that the requirements stated in Exhibit Q were not specifically included in Exhibit B does not mean that the guidelines are not terms and conditions precedent to the validity of the contract as contended by the Appellant.

I am conscious of the general established principle of law that where an agreement has been reduced to writing, none of the parties can contend that besides the written terms and conditions there are extraneous matters capable of modifying the agreement. In other words, the court cannot import extrinsic issues into a contract nor is it allowed to rewrite same by wrong imputation or interpretation. - Kaydee Ventures Ltd v. The Hon. Minister of FCT & 2 Ors (2010) 7 NWLR (pt. 1192) 171 at 217-218, Agbare v. Mimira (2008) 2 NWLR (pt 1071) 377 at 414, DSADP v. Ofonye (2007) 47 WRN 35 at 88. However, there are certain circumstances where terms may be logically implied from the express terms of the contract. There are occasions where the whole arrangement between the parties are not set forth in a single document and the parties themselves do not intend that single document to be the alpha and omega of the agreement binding the contractual transaction between them. In such circumstances, other documents, as envisaged by the main contractual agreement must be read along to portray the actual intention of the parties. See the English case of Turner v. Forwood (1951) 1. A.E.R. 746. See also Ibama v. Shell Pet. Dev. Co. Nig Ltd (1998) 3 NWLR (Pt. 542) 493 at 499-500. The case of Orient Bank (Nigeria) PLC v. Bilante International Ltd (1997) 8 NWLR (Pt. 515) 37

"Where documents form part of a long drawn transaction such as in the instant case, they should not be interpreted in isolation but in the context of the totality of the transaction in order to fully appreciate their legal purport and impact. That is the only way to find out and determine the real intention of the parties. A restrictive and restricted interpretation which does not take cognizance of the total package of the transaction in which the documents are integral part cannot meet the justice of the case."

In this appeal, the parties are supposed to look beyond Exhibit B simplicita to other documents imported by Clause 2 of Exhibit B the guidelines in Exhibit Q contain the rules and instructions governing the sale of government houses by the Federal Government, represented by the Respondents. They form part of the contract of sale between the prospective or intending purchasers and the Respondents. They constitute part of the terms and conditions of the offer incorporated by clause 2 of the Letter of Offer Exhibit B. Clause 10 of Exhibit Q is the relevant term in this appeal.

For purposes of clarity and assimilating Clause 2 and of Exhibit B and Clause 10 of Exhibit 2 are reproduced –

"At the closing date as hereinafter defined under clause 5(a), the Lessee shall purchase the property subject to any conditions contained in a Deed of Lease or imposed by law."

"Each and every Public Servant shall be entitled to purchase only one residential writ whilst any and all allocated or occupying government house in Lagos are specifically excluded from purchasing houses in the Federal Capital Territory."

The purport and/or intention of Regulation 10 of Exhibit Q is not disputed. The passionate contention of the Appellant is her application predated Exhibit Q and therefore Regulation 10 of Exhibit Q cannot properly be made to govern the contractual transaction between her and the Respondents. I have earlier held that in the circumstances of this case, the Appellant is deemed to have been aware of Exhibit Q before she forwarded her application of interest to purchase the House to the Respondents. Assuming (without conceding) that she was not aware of Exhibit Q at the time of her application, however it is crystal clear from evidence on record that Exhibit Q come into existence before the offer, Exhibit B was made to the Appellant and before the Appellant accepted the offer. Exhibit Q which came into effect on 1st April 2005 was published on 15th August 2005. The law is clear that publication of any fact in an official Gazette constitutes a Notice to the whole world - Osita C. Nwosu v. Imo State Environmental Sanitation Authority & Ors (1990) 2 NWLR (Pt 688) 621. The Appellant is therefore deemed constructively to be aware of the contents of Exhibit Q from the date of publication, being 15th August 2005. It is now pertinent to take cognizance of the date that offer - Exhibit B was made to the Appellant on 26th September 2005, this is definitely after the publication of Exhibit Q. the Appellant is therefore deemed to be aware of Clause 10 of Exhibit Q which made the Appellant not qualified to apply for a house in Abuja. The pertinent question is - what offer did she accept?

An acceptance is the assent or agreement to the terms and conditions stipulated in an offer. It is the act of signifying the offeree's consent to the terms purposed by the offeror. In Amana Suites Hotels Ltd v. PDP (2007) 6 NWLR (Pt 1031) 453 at 476 the court held as follows –

"An acceptance of an offer is the reciprocal act or action of the offeree to the offeror in which he indicates his agreement to the terms of the offer as conveyed to him by the offeror. Putting it in another language acceptance is the act of compliance on the part of the offeree with the terms of an offer. It is the element of acceptance that underscores the bilateral nature of a contract. An acceptance of an offer may be demonstrated (a) by conduct of parties or (b) by their words or (c) by documents that have passed between them."
 

See also Orient Bank (Nig) PLC v. Bilante International Ltd (1997) 8 NWLR (Pt 515) 37 at 77.

The terms proposed by the Respondents included clause 10 of Exhibit Q. The validity of Exhibit B is predicated on Clause 10 of Exhibit Q. Failure of the Appellant to disclose that she was occupying a government quarters in Lagos makes the offer invalid. If she had disclosed in her application that material fact in her application, the offer would not have been made to her. Non disclosure of this specified material fact makes the offer totally invalid. An acceptance is ineffective unless it complies with the terms of the offer. An invalid offer is not capable of a valid acceptance. As rightly submitted by the Respondent, in determining whether there was an acceptance, the total circumstances surrounding the offer has to be taken into account - Kanu Ltd v. FBN PLC (2006) 8 MJSC 117 at 120.

An offer is the commencement of a contract. Where there is no valid offer, no other ingredient of a contract can be built on it.

Where a contract is made subject to the fulfillment of certain specified terms and conditions, the contract is not formed and not enforceable unless those terms and conditions are complied with.

In circumstances of this case, where the basis of the commencement of the contract for purchase of the House is invalid, due to the fault of the Appellant, for non-disclosure of material fact concerning the conditions of the offer, the Appellant cannot sue for specific performance of the purported contract even where he has offered consideration for the contract. In the cited case of Balogun v. Alli Owie (2003) 3 NWLR (pt 6491) 477 at 416, the court held as follows –

"The person who seeks to enforce his right under a contractual agreement must show that he has fulfilled all the conditions precedent and that he has performed all these terms which ought to have been performed by him. In an action for specific performance of an agreement, the plaintiff must fail if there is a default on his part to discharge obligations under the contract."

The learned trial Judge was right to have dismissed the Appellant's case. This appeal is totally devoid of merits. It is hereby dismissed. Parties are to bear their costs.

JOSEPH TINE TUR, J.C.A.:

The Appellant expressed interest to purchase Plot 563, Flat Durban Street, Wuse II, Abuja now the subject matter in dispute from the respondents. The respondents did not hesitate to make an offer by letter dated 26th September, 2005 and addressed to the appellant. The letter to the appellant was specific:

"...This letter shall constitute the Terms of Offer from the Federal Capital Development Authority (FCDA) on behalf of the Federal Government of Nigeria. ("the Lessor"), and upon execution, the Acceptance by you (the "Lessee") to purchase the property from the Lessor, on such terms and conditions as are more particularly set forth below... 2. At the closing date as hereinafter defined on the clause 5(a) the Lessee shall purchase the property, subject to any condition contained in a Deed of Lease or imposed by any Law..."

The offer to sell the property to the appellant was "subject" to conditions precedent which MUST be fulfilled for the conditions offer to become absolute.

In Clement Ezenwosu vs. Aaron Ngonadi (1992) 3 SCNJ 59 the phrase "subject to" arose for determination by the Supreme Court in regard to Section 227 of the Constitution of the Federal Republic of Nigeria 1979, Nnaemeke-Agu, JSC interpreted the import of that phrase at page 72 lines 28 to page 73 lines 18 as follows:
 

"As has been observed by Mr. Egonu the Practice Directions have been issued as part of the rules of practice of the Court of Appeal. They cannot have any more pervasive application than the Rules of the Court themselves. It is expressly provided in Section 227 of the 1979 Constitution as follows:
 

"227. Subject to the provisions of any Act of the National Assembly, the President of the Court of Appeal may make rules for regulating the practice and procedure of the Court of Appeal.

As the above provision has made the powers of the President of the Court of Appeal to make rules "subject to the provisions of any Act of the National Assembly" it follows that the learned President's exercise of those powers is intended to be curtailed and circumscribed by any relevant Act of the National Assembly. For, the phrase, "subject to" is a usual provision used to subject or subsume the provision of a subject statute, be it substantive or adjective, to the provisions of a master enactment. See on this Lagos State Development & Property Corporation vs. Foreign Finance Corp. (1987) 1 NWLR (Pt. 50) 413 at page 461; Obikoya & Sons Ltd. vs. The Governor of Lagos State & Anor. (1987) 1 NWLR 385; at page 408-409; Aqua Limited vs. Ondo State Sports Council (1988) 4 NWLR 622, page 655."

The parties might execute or append their respective signatures to a lease agreement but if not in accordance with the terms "imposed by any law" as stipulated under clause 2 of the "Letter of offer," it cannot be heard to be argued by the appellant that an enforceable lease agreement had been concretised, a breach of which will entitle the appellant to found an action against the respondents. This is made clearer by clause 2 of the letter offering the property for sale to the appellant to wit:

"7.     This letter, and the obligations therein contained, shall be governed and construed by and in accordance with the Laws of the Federal Republic of Nigeria.

Kindly indicate you acceptance of this offer by executing this Letter (and the duplicate enclosed herewith), dating same in the space provided therefore, and returning same along with the non-refundable deposit to the Ad-Hoc Committee on the Sale of FGN Houses, Room 109, Ministers Block, FCDA Secretariat, Area 11 Garki, at which time the Offer and Acceptance become a binding agreement, in commitment to the fulfillment of the conditions precedent.
 

The Offer shall be deemed to have been withdrawn at the close of business or the Fourteenth (14th) day following the date hereof, unless prior thereto, the Lessor shall have received a written, valid Acceptance, in satisfaction of all conditions precedent, from the Lessee."

The word "Guidelines" which the appellant pleads in paragraph 19 of the statement of claim she knew nothing about before or after her letter to the respondent simply means "rules or instructions that are given by an official organization telling you how to do something, especially something difficult." See Oxford Advanced Learner's Dictionary, 7th edition, page 663.

Exhibit "Q" is sub-titled "Approved Guidelines for the Sale of Federal Government Houses in the FCT to Career Public Servants." The exhibit came into effect on 1st April, 2005. The appellant expressed the intention to purchase the property sometimes in April, 2005. How can it be argued that the appellant would express an intention to purchase property from the respondent, and start payment, without seeing nor being aware of the guidelines governing the intended transaction? This kind of story should be told the marines. In any case, the learned trial Judge disbelieved the cock and bull story of the appellant. The issue is one of credibility. The Court of Appeal cannot interfere in matters where the sole or crucial issue involves the credibility to be attached on an issue the parties were heard and the learned trial Judge made a finding in favour of one of the parties.
 

In Customs and Excise vs. Barau (1982) NCR (Pt. 2) 1 the Supreme Court was faced with a similar situation. Fatayi-Williams, C.J.N. held at pages 21-23 of the judgment as follows:

"In view of the above, I am not surprised that the learned Chief Judge disbelieved the belated testimony of the respondent that he had no knowledge of the prohibition order or that he had no fraudulent intent to evade the prohibition order or be concerned in the said evasion.
 

Having made his finding, correctly in my opinion, on the basis of the evidence adduced before him, and bearing in mind that he was the only person in a position to assess the credibility of the respondent from his demeanour in the witness-box and otherwise, it is not open to the Federal Court of Appeal to substitute its own assessment of the respondent's testimony for that of the learned Chief Judge. The Federal Court of Appeal is certainly in error in so doing.

In Akinloye vs. Eyiyola (2) this Court held (1968) NMLR at 98 that:-

"Where a Court of trial unquestionably evaluates the evidence and appraises the facts, it is not the business of a Court of Appeal to substitute its own views for the views of the trial Court."

I join my learned colleague TINUADE AKOMOLAFE-WILSON, JCA in dismissing this appeal. I abide by the orders made therein.

MOORE A. A. ADUMEIN, J.C.A.:

I had a preview of the judgment just delivered by my learned brother, Tinuade Akomolafe - Wilson, JCA.

My learned brother has comprehensively and elaborately treated all the issues in this appeal. I agree with the reasoning and conclusion of my learned brother that this appeal is devoid of merit and it should be dismissed.
This appeal is hereby dismissed without any order for cost.