1. STANLEY UGBO VICTOR
1. MRS THERESA O. IJEH
2. MINISTER, FEDERAL CAPITAL TERRITORY
3. FEDERAL CAPITAL DEVELOPMENT AUTHORITY
(DELIVERED BY HON. JUSTICE TANI YUSUF HASSAN, JCA)
This appeal is against the decision of the High Court of the Federal Capital Territory, Abuja delivered on the 24th day of October, 2011 in suit No. FCT/HC/CV/1117/09.
The 1st Respondent as Plaintiff at the trial court commenced the action by a Writ of Summons and statement of claim dated the 6th day of April, 2009 against the 2nd and 3rd respondents and appellant herein as 1st, 2nd and 3rd defendants. The Writ of Summons and statement of claim is at pages 1-13 of volume 1 of the record.
The 2nd and 3rd respondents as 1st and 2nd defendants therein filed their amended statement of defence, dated 17/02/2011 and filed on 21/02/2011.
The 1st respondent (as Plaintiff therein) filed a reply to the 1st and 2nd defendants (2nd and 3rd respondents herein) statement of defence dated 08/03/2011 reflected at pages 714-718 of volume 2 of the record.
The appellant as (3rd defendant therein) filed an amended statement of defence and counter claim on 09/06/2010 as shown at pages 512-533 of volume 2 of the record of appeal.
There is no reply to the appellant's amended statement of defence and counter claim.
Briefly the facts of the case are that, during the sale of the Federal Government Houses exercise, the 1st respondent who is a staff of the Federal Ministry of Transport, and as a carrier civil 1 servant in occupation of the Ministry of Transport Staff Quarters; Karu site, Abuja indicated interest to purchase and was offered Block 1.
The appellant purchased Block 4BQ a boys quarters which the 1st respondent claimed is a boys quarters attached to Block 1 which she purchased. He was issued with a vacant possession by. the 2nd and 3rd respondents.
The suit went into trial. At the end of the trial, the that court nullified the sale to the appellant that Block 4BQ is part of Block 1 sold to the 1st respondent.
Judgment was entered in favour of the 1st respondent and the counter-claim of the appellant was dismissed.
It is the decision of the trial court that gave rise to this appeal.
The appellant's amended Notice of Appeal filed on 11/10/2010 has 8 grounds with their particulars and reliefs sought.
The appellant's counsel Ikechukwu Ikogwe distilled three issues for determination from the grounds of appeal.
They are: .
i) "Whether the learned trial Judge was correct in the entire circumstances before the lower court to hold that Block 4BQ, Ministry of Transport Quarters y behind Motherless Baby Home, Karu, Abuja and sold by the 2nd anrf 3rd Respondents to the Appellant was part of Block 1 NMA/Ministry of Transport Staff Quarters Karu Abuja which the 1st Respondent purportedly purchased, and that the 1st Respondent was in possession of the said Block 4BQ Ministry of Transport staff Quarters" (Grounds 1, 2 and 3).
ii) "'Whether from the nature and circumstances of this case, the lower court was correct setting aside the sale of Block 4BQ, Ministry of Transport Quarters,, Behind Motherless Baby Home Karu, Abuja to the appellant by the 2nd and 3rd Respondents, and\ nullifying Exhibit C, Sf and U6" (Grounds 5, 7, and 8).
iii) "Whether the lower court was correct in dismissing the appellants counter-claim before it having regard to the entire circumstance before the lower court" (Grounds 4 and 6).
The 1st Respondent's counsel Malachy Nwaekpe identified five issues for determination as follows:
i) "Whether the learned trial Judge was right from the evidence before him and the facts and circumstances of the case to hold that the 1st Respondent bought from the 2nd and 3rd Respondents Block 1 NMA Ministry of Transport Staff Quarters Karu together with the 2 bedroom boys quarters bungalow, otherwise described as Block 4BQ " (Ground lf 2 and 3).
ii) "Whether issue Hi formulated by the Appellant flows from Grounds 4 and 6 of his grounds of appeal; and if in the negative whether it is competent".
Hi) "Whether everything said by the trial Judge or any slip of the trial Judge is appealable or can ground the dismissal of his Judgment"(Grounds 4 and 7).
iv) "Whether the trial Judge was right to hold that the purported sale of the 1st Respondent's boys quarters by the 2nd and 3rd Respondents to the Appellant was fraudulent and illegal" (Grounds 5, 7 and 8)
v) "Whether the learned trial Judge was right in dismissing the Appellant's counter-claim against the Respondents"
Counsel to the 2nd and 3rd Respondents, F. S. 3imba did not file any brief on behalf of the 2nd and 3rd Respondents.
Issues for determination are meant to acquaint the court with the grievances of the parties in the appeal and subsequently assist the court in doing substantial justice in the determination of the issues.
Therefore issues for determination in any appeal must flow from the grounds of appeal. They must project clearly and succinctly the substance of the complaint contained in the grounds of appeal - Agbiti Vs Nigeria Navy (2011) 2 SCNJ 1 at 3.
i I have noticed that the 1st Respondent issues ii, iii and v are formulated from grounds 4 and 6.
It is trite that when an issue has already been formulated from a ground of appeal, another issue cannot be formulated from the same ground. In the instant case issues 2, 3 and 5 were formulated from grounds 4 and 6 of the grounds of appeal, which should not be the case. Having formulated issues 2 from grounds 4 and 6 another issue could not be formulated therefrom- F. C D. A. Vs Nzelu (2014) 5 NWLR (part 1401) 565 at 572, and Ikenne Local Government Vs W.A.P.G Plc (2011) 12 NWLR (part 1261) 223.
In the circumstance issues 2, 3 and 5 of the 1st Respondent are in competent and therefore struck out.
Issue 3 of the appellant's brief does not flow from ground 6 of the grounds of appeal. Ground 6 and issue 3 are incompetent and are liable to be struck out. They are struck for being incompetent.
It is trite that issues to determine the appeal must be derivable from competent grounds of appeal properly couched from ratio decidendi of the decisions of the court being appealed against - Okponipere Vs State (2013) 2 SCNJ 179 at 181.
Both the appellant and the 1st respondent are left with only two issues each for determination.
The Supreme Court in Plateau State Vs Goshwe (2012) 12 SCNJ 54 AT 57 held that a court has an unfettered discretion to re-arrange or formulate issues for determination by the parties to meet the justice of the case. Also in African International Bank Ltd Vs Integrated Dimensional System Ltd and Lf others suit No- SC 278/2002 (unreported), decided on the 11th May, 2012, the Supreme Court per Ariwoola, JSC said as follows:
"So long as it will not lead to injustice to the opposite side, appellate courts posses the power and in the interest of justice to reject, modify or reframe any or all issues formulated by the parties".
In line with the above decision I find it necessary to modify the issues as formulated by the parties:
1) "Whether the trial court was right when it held that the 1st Respondent was entitled to possession of Block 4BQ (boys quarters) along with the 4 bedroom duplex Block 1 which she purchased from the 2nd and 3rd Respondents",
2) "Whether the trial court was right in dismissing the Appellant's counter-claim"
"Whether the trial court was right when it held that the Respondent was entitled to possession of Block 4BQ (Boys Quarters) along with the 4 Bedroom duplex Block 1 which she purchased from the 2nd and 3rd Respondents"
On this issue, it is the submission of the appellant's counsel that Block 4BQ (boys quarters) and Block 1 the 4 bedroom duplex are distinct properties marked and beaconed separately.
That the finding of the trial court that there was a consensus between the parties that each 4 bedroom duplex in the quarters is attached with a 2 bedroom Boys quarter is in error as there was no such consensus. Relying on the case of R. Bankay Nig. Ltd. Vs Cadbury Nig. Plc (2006) 6 NWLR (part 916) 388 and Kenta Best (Nig.) Ltd Vs Attorney General Rivers State (2008) 6 NWLR (part 1084) 612, it is submitted that judgment of court must confine its enquiry entirely to the determination of issues properly raised and canvassed by the parties before it.
Also submitted is that the trial court was in error when it merged the interest in Block 4BQ with that in Block 1 thereby granting title of Block 4BQ to the 1st Respondent.
That it is wrong for the trial court to interprete exhibit "A" the letter of offer to the Appellant to include Block 4BQ or any boy's quarters as the 1st respondent never occupied or enjoyed any right in respect of any boy's quarters prior to exhibit "A".
He referred to the evidence of DW1 at page 850-851 which is to the effect that no civil servant in the quarters was offered or bought duplex with boys quarters attached.
That the 2nd and 3rd respondents by exhibit "J" explained that Block 1 was misdiscribed in exhibit "F" a letter from the office of the Minister FCDA to CSP Umar Y. Shelleng of Criminal Investigation Bureau, dated 6th October, 2009, But the trial court import into Exhibit "A" the contents of exhibit "F" which parties never intended or agreed upon.
It is contended for the appellant that Exhibit G a notice to quit issued to l5t respondent was misconstrued by the trial court when it held that Block 4BQ is part of Block 1. That the decision of a court should be based upon proper evaluation of evidence before it.
He referred to Nigeria Ports Authority Plc Vs Lotus Plastic Limited and anor (2005) 19 NWLR (part 959) per Niki Tobi JSC.
Also contended is that the purchase of Block 1 by the 1st respondent as approved by the Guidelines for sale of Federal Government Houses in the Federal Capital Territory to carrier Civil Servants, affects only the property occupied by the civil servant excluding the boys quarters.
That the 1st respondent's assertion in paragraphs 5 an 6 of the statement of claim that the 2nd and 3rd respondents decided to sell Block 1 together with the boys quarters was denied by the 2nd and 3rd respondents in paragraph 10 of the 1st and 2nd Defendants amended statement of defence filed on 21st February, 2011,
It is submitted further that the appellant in paragraphs 3033 of his amended statement of defence/counter-claim filed on 9th June, 2010, the occupants of Block 4BQ refused to exercise their right to purchase the property and were issued with a quit notice exhibit U7 in which Block 4BQ is listed as item No. 360,
It is finally submitted for the appellant that the 1st respondent is fully aware that she did not purchase Block 1 with Block 4BQ or any boys quarters, as Block 4BQ is not the boys quarters attached to block 1, which is supported by Exhibit "T" the survey map of the quarters showing that Block BQ4 is not related to Block 1. Appellant's counsel also referred to exhibit "N" the valuation Report of the quarters. The court was referred to Mini lodge Limited and anor Vs Ngei and anor (2009) 18 NWLR (part 1173) 254 and Kaydee Vs Minster Federal Capital Territory 7 NWLR (part 1192) 171 at 206.
That as there was no proof that the 1st respondent was ever in possession of Block 4BQ, the onus is on her, as the appellant was clearly the one in possession.
He referred to Ewuga Vs Akwe Dona (2008) 8 SCLR 92 and Federal Ministry of Health and anor Vs Comet Shipping Agencies Ltd (2009) 9 NWLR (part 1145) 193.
That the waiver granted in exhibit "Q" should be applied fairly to the case of both the appellant and the 1st respondent as it was wrong for the trial court to apply it partially in favour of the 1st respondent.
He urged the court to resolve the issue in favour of the appellant.
It is submitted for the 1st Respondent that the trial Judge was right in holding that by exhibit "A", T" and "G" which are offer letter, Newspaper Publication/advertisement for the sale of the 4 Bedroom detached Duplex with a 2 rooms boys quarters bungalow goes to show that the 4 Bed room duplex. Block 1 sold to the 1st respondent includes the boys quarters. That the Leadership Newspaper Publication of 12th October, 2005 which advertised the sale of the Federal Government Houses has not been retracted by the 2nd and 3rd respondents.
It is submitted that with the acceptance and payment for Block 1 with the appurtenances as described in "Schedule A", which includes the two Bedroom Boys Quarters as advertised by the 2nd and 3rd respondents the property had become that of the 1st Respondent, That the 2nd and 3rd respondents had no power of sale by auction to the appellant as parties are bound by their agreement
The court was referred to Sonnar (Nig.) Ltd Vs Partenreor M. S. Norwind and anor (1981) 11-12 SCNJ 3 ratio 1 and 3.
It is argued that the boys quarters is an appurtenance to the main building and the court must take judicial notice pursuant to section 122 (3) and 124 of the Evidence Act that the boys quarters cannot be an independent of the main building.
The court was referred to Exhibits "A","F" and Schedule "A" of the 1st Respondent and the case of Kindey and others Vs Governor of Gongola state (1988) 5 SCNJ 1161.
The 1st Respondent's counsel contended that the contents of the News paper advertisement by implication incorporated terms of the offer in exhibit "A" schedule "A" that what the 1st respondent bought and paid for was 4 Bedroom Duplex Block 1 with two rooms boys quarters. The court was referred to Texaco Overseas (Nig.) Petroleum Comp. Ltd Vs Rank Limited (2009) 13 WRN 85 AT 89 ratio 4.
That a person who appears to have agreed to certain terms cannot escape liability by showing that he had no real intention to agree to such contractual terms. The law does not allow him to do so. Counsel referred to Attorney General of Rivers State Vs Attorney General of Akwa Ibom (2011) 8 NWLR (part 1248) 31 at 149 paragraphs A-B. It is argued for the 1st respondent that if the 2nd and 3rd respondents intended to sell the duplex without its boy's quarters to the 1st respondent, they should have expressly stated so in the contractual document and to the public. That terms and conditions properly incorporated in a contract are enforceable against the parties thereto. The court was referred to Oniwara Ibrahim Vs Ishola Balogun Fulani and 4 others (2009) 18 WRN 40 at 63 ratio 26 where it was held that no one can take advantage of his wrong.
That the quit notice served on the 1st respondent by officials of the 2nd and 3rd respondents is indicative of the fact that both Block t and Block 4BQ are same and the 1st respondent was in occupation of the boy's quarters. He relied on Union Bank Vs Ozigi (1991) 2 NWLR (part 176) 679 at 696 paragraphs D-E and Coop. Dev. Bank Pic Vs Ekanem (2009) 16 NWLR (part 1168) 285 at 601 paragraphs A-C.
It is finally argued for the 1st respondent that the allegation of the 2nd and 3rd respondents that the disputed boy's quarters was not part of Block 1 NMA/Ministry of Transport Staff Quarters Karu, and in an attempt to prove same tendered exhibit "N" and "T" undated and unsigned valuation report and survey plan, which is fraudulent. The case of Omega Bank Nig. Pic Vs O, B. C. Ltd (2005) 1 SC (part 1 49 per Niki Tobi JSC was referred.
Relying on the case of Borishade Vs NBN Ltd (2009) 1 NWLR (part 1015) 217 at 225, it is submitted that the appellant cannot make a case for the 2nd and 3rd respondents, being not privy to the contract of sale between them. That the trial court was right when it held that the 1st respondent bought Block 1 together with the boys quarter.
He urged the court to resolve the issue in favour of the 1st respondent.
In reply on point of law, the appellant's counsel raised the issue of incompetency of issues ii, iii, iv, and v of the 1st respondent's brief on the ground that the issues do not flow from the grounds of appeal. This observation of the appellant is belated as it is not at this stage that such objection should be raised.
In reply to issue one, canvassed by both parties, the appellant's counsel was only re-arguing his main brief which is not suppose to be the case.
Reply brief is supposed to address issues on point of law or new issues tt>at arose in the respondent's brief see Samuel Iheanacho Vs Emmanuel Zwuamadi (2013) LPELR 20689 CA. But it is not meant to re-argue what has already been canvassed in the main brief. The appellant's reply brief is therefore discountenanced.
The appellant contended that the 4BQ (boy quarters) at NMA/Ministry of Transport Staff Quarters Karu which he purchased from the 2nd and 3rd respondents through bidding is not part of the Block 1 comprising of 4 Bedrooms duplex sold to the 1st Respondent.
This is also the argument of the 2nd and 3rd respondents, the body responsible for the sale of the Federal Government Houses to the carrier civil servants.
The 1st respondent on her part contended that by virtue of the Newspaper publication on the sale of the Federal Government Houses and the letter of offer Issued to her, Block 1 NMA/Ministry of Transport Staff Quarters Karu, Abuja, FCT which she purchased includes the two bedroom boys quarters described as 4BQ.
The 1st respondent in paragraph 5 of her statement of claim at page 4 of volume 1 of the record of appeal deposed to the fact that sometimes in the year 2005, the 1st Defendant invited Career Public Servants occupants of Federal Government Quarters to express Interest in the purchase of the houses they occupied as carrier public servants, with evidence of payment of rent for the past six months, preceding the invitation for the expression of interest.
The lsL respondent in paragraph 5 of her statement on oath at page 9 of volume 1 of the record deposed that she duly respondent to the invitation^ and returned a duly completed expression of interest form with the N10,000.00k fee in respect of Block 1 of 4 Bedrooms Duplex,
The evidence of payment of N 10,000.00k fee in First Bank teller dated 19/05/2005 is exhibit "A", while the Expression of Interest form also dated 19/05/2005 is exhibit "B". Exhibit "C" at page 17 of volume 1 of the record is the receipt of the payment of Block 1 NMA/Ministry of Transport Staff Quarters Karu issued to the 1st Respondent in the sum N6,480,000.00k (six million four hundred and eighty thousand naira) only, by the Ad-Hoc Committee on sale of FGN Houses in Abuja, FCT dated 21/10/2006. Exhibit "D" is the offer letter dated 30th October, 2005 issued to the 1st Respondent by the office of the Minister Federal Capital Territory Administration reflected at page 26 of the record. It reads:
"Letter of offer
We refer to your Expression of Interest to purchase the property owned by the Federal Government of Nigeria situate at Block 1 NMA/Ministry of Transport Staff Quarters, Karu 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". "The 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",
Schedule "A" of the offer letter reflected at page 29 of volume 1 of the record reads:
"All that property known as a Duplex situated at Block 1 NMA/Ministry of Transport Staff Quarters, Karu, Abuja, FCT including and not limited to the party wails, roofs, plumbing and electrical sewage and other systems together with all appurtenances rights of way, easements, reversionary rights of privileges related thereto"
The 1st respondent having fully paid for the house Block 1 NMA/Ministry of Transport Staff Quarters wrote a letter dated 23rd January, 2008 to the Honourable Minister, Federal Capital Territory, Abuja demanding for the release of her two rooms boys quarters. This is because while the senior staff occupies the main house, the boys quarters are occupied by the junior staff. The letter is exhibit "H" at page 42 of the record. As there was no response to her letter, she sent a reminder dated 11th August, 2008. On a letter 28th of February, 2008 from the office of the Minister addressed to the 1st respondent, paragraph 3 of the letter stated thus:
"In response to the specific issue raised in your letter , under reference, please note that the property was ' offered to you as 4 Bedroom Duplex on First Right of Refusal (FRR) basis. However the same property was in advertenly advertised in October, 2005, as a 4 - Bed room detached Duplex with a 2 - Bedroom BQ, whereas in actual fact it is only a 4 Bedroom duplex"
This response emahated from the 2nd and 3rd respondent.
However exhibit "F" is a Quit Notice dated 9th August, 2007 from the office of the Minister, FCDA to the occupant(s) of Block 1 Ministry of Transport Quarters Karu Abuja that the property has been sold through a process of public bidding and the buyer has since made payments due on the property.
It is pertinent to point out that exhibit "F" at page 45 of the record volume 1 dated 9th August, 2007 titled "Quit Notice" from the Federal Capital Territory Administration Office of the Minister, addressed to the occupant of Block 1 Ministry of Transport Quarters was directed to the occupant of Block 1, that is the l5t Respondent in this case. As at the year 2007, the 1st respondent has already paid for the house and was in occupation. It could not have been sold to anybody by bidding since the 2nd and 3rd respondents could not have sold what they did not possess.
The 1st respondent was offered the house in 2005 and she paid fully in the year 2006. She is therefore entitled to the house.
The appellant as 3rd defendant at the trial court, in his : amended statement of defence and counter-claim of 09/06/2010 paragraph 11 at page 593 of volume 2 of the record, deposed to the fact that while Block 1 NMA/Ministry of Transport Staff Quarters Karu, Abuja FCT was offered to the plaintiff (1st respondent herein) he was offered and bought Block 4BQ Ministry of Transport Quarters, Karu, Abuja.
That there is no nexus between Block 1 which the 1st Respondent bought and Block 4BQ which he bought- The letter of offer issued to the appellant dated 25/08/2008 in respect of Block 4BQ Ministry of Transport Quarters is reflected at page 572 of j volume 2 of the record.
The appellant in support of his claim also relied on the Public- ; Notice by the Federal Capital Territory Administration Published in Punch Newspaper of Friday June 27, 2008 following the walk-in sales of 7th - 9th April, 2008. The Public Notice is to the effect j that all carrier public servants who defaulted in payment and are ' still in occupation were given 30 days notice from the Gate of I publication within which to quit and deliver possession of the f houses with appurtenances. The Block 4BQ claimed by the appellant is at page 581 of the record as contained in the J publication.
The 2nd and 3rd respondents as l5t and 2nd defendants at the lower court, in support of the appellant's claim deposed in r paragraph 15 of their amended statement of defence filed on 21/02/2011 at page 62 of volume 2 of the record that the said BQ was sold to the appellant in the sum of N1,411,200.00k (One million, four hundred and eleven thousand, two hundred naira) only being a member of the general public in a walk in sale which he has fully paid. In support of their claim the 2nd and 3rd respondents relied on a Survey Plan and Valuation Report, both documents certified on 01/02/2012, when the case has been disposed off, as the judgment in this case was delivered on the 24th day of October, 2011.
It is clear from the submissions of the appellant's counsel that the 2nd and 3rd respondents sold what was termed Block 4BQ to the appellant in July, 2008.
It is also the submission of the 1st respondent's counsel that the 2nd and 3rd respondents sold Block I NMA/Ministry of Transport Staff Quarters with the two bedroom boys quarters to the 1st respondent.
The 2nd and 3rd responded is not disputing the fact that it has sold Block 1 to the 1st respondent and Block 4BQ to the appellant.
What is in contention is the denial of the 2nd and 3rd respondents that 4BQ sold to the appellant is not part of Block 1 sold to the 1st respondent. I have perused the submission of counsel to the parties, their pleadings and documents tendered I do not agree with the appellant, the 2rd and 3rd respondents that ''Block 1 NMA/Ministry of Transport Staff Quarters sold to the 1st respondent does not include the boys quarters.
In the construction of terms of contract embodied in documents, the question is not what the parties to the documents ( may have intended to do by entering into that document, but what is the meaning of the words used in the document - Kings Planet Int.l Vs C.P.W.A. Ltd (2014) 2 NWLR (part 1392) 605 at 609. See also Amizu Vs Nzeribe (1989) 4 NWLR (part 118) 755.
Indeed while a contract must be strictly construed in accordance with the well rules of construction, such strict construction cannot be a ground for departing from the terms which had been agreed upon by the parties to the contract. This is so because parties to an agreement are bound by the terms therein.
A legally enforceable agreement, which a contract is, has the following necessary ingredients to wit.
d) Intention to create legal relationship
e) Capacity to contract.
These five necessary requirements must co-exit, as a contract cannot in law be formed in the absence of any of the ingredients - Azubuike Vs Govt, Enugu State (2014) 5 NWLR (part 1400) 364 at 370 Shell Petroleum Development Company Ltd Vs Fronthine Television Ltd (2011) LPELR 4955 and Obaike Vs B.GC Pic (1997) 10 NWLR (part 525) 435.
The l5t respondent in the instant case was given a first right of refusal in Expression of Interest to Purchase the house she occupied as a career Civil Servant situate at Block 1 NMA/Ministry of Transport Staff Quarters, Karu, Abuja, which she accepted. She paid fully for the house and was issued a receipt of payment and a letter of offer to that effect. The house is 4 Bed room Detached duplex with 2 rooms boys quarters.
The letter of offer dated 3fT October 2005 addressed to Theresa Onyembu Ijeih from the Federal Capital Territory Administration, office of the Minister reads:
"With reference to your expression of Interest to purchase the property owned by the Federal Government of Nigeria situate at Block 1 NMA/ Ministry of Transport Staff Quarters Karu, Abuja FCT and more particularly described in "schedule A" hereto together with all appurtenances, right, 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"
It is trite that where parties enter into a contract they are bound by the terms thereof and the court will not read into a contract terms on which there is no agreement.
I have read the offer letter of the 1st respondent particularly with regard to "Schedule A" therein where it is clearly stated that the sale of the 4 Bedroom Duplex Block 1 to the 1st Respondent includes all the appurtenances therein. "Appurtenances is defined by Black Laws Dictionary Eight Edition as "something that belongs or is attached to something". The question to be asked here is whether the two bedroom boys quarter is attached to Block 1 sold to the 1st respondent? The answer is in the affirmative. This is because boys quarters in the main house belongs to the house.
It sounds strange to sell a main house to an occupant and the boys quarters to be sold to a stranger. Common sense dictates that where there is a boys quarters it has a main house to which it belongs, If the Lessor has intended to exclude the boys quarters in the sale agreement it ought to have been stated expressly in the terms of agreement. But as it is in this case, there is nothing to that effect for the Lessee to either accept or reject the offer. The Is1 respondent was therefore right to believe that the property sold to her as 4 Bedroom Duplex Block 1 includes the two bedroom boys quarters. The trial court was equally right in holding so.
The 1st respondent having paid fully for the property which the 2nd and 3rd respondents accepted, a valid contract is one that possess offer, acceptance, consideration, intention to create legal relations and capacity to contract.
It is my view that these ingredient have been established in the sale agreement between the 1st respondent and the 2nd and 3rd respondents. Contrary to the submissions of the appellant that the boys quarters described as 4BQ was not part of the 4 Bedroom duplex Block I sold to the 1st respondent, the purported sale of same to him by the 2nd and 3rd respondent is invalid because as at July 2008 when the 4BQ was sold to him the 1st respondent was in occupation of the property pursuant to the offer of letter dated 30/10/2005 and full payment of which was made on 21/10/2006 which the 2nd and 3rd respondents accepted. It follows therefore as at July 2008 when the said Block 4BQ was purportedly sold to the appellant the 2nd and 3rd respondents were not in possession of the property.
It is trite law that no one can validly give what he does not have. This is expressed in the latin maxim of nemo dat quod non habet. The maxim is most applicable where a party who does not have something purports to sell it. See Egbuta Vs Onuna (2007) 10 NWLR (part 1042) 298 Owena Bank Plc Vs Olatunji (2002) 12 NWLR (part 781) 259 and Olagunju Vs Yahoha (2004) 11 NWLR (part 883) 24.
It is trite law that where words are clear and unambiguous they must be given their natural meaning. The letter offer with particular reference to "Schedule A" is clear and unambiguous it must therefore be given its grammatical meaning. See Onyedebulu Vs Mwanerj (2009) All FWLR (part 453) 270.
Apart from general denial by the appellant and the 2nd and 3rd respondents in their statement of defence there is no fact to support their claim that the two bedroom boys quarters described as 4BQ is not part of the 4 Bedroom duplex Block 1 sold to the 1st respondent. It is not pleaded that it was a term of the contract that the l5t respondent had an obligation under the contract to pay separately.
Both the Leadership Newspaper and Punch Newspaper heavily relied on by the appellant clearly stated the sale of the houses with all appurtenances therein, with boys quarters specifically stated in the Leadership Newspaper, Although the 2nd and 3rd respondents in exhibit "H" stated that the inclusion of boys quarters was a mistake, but the mistake was not retracted from the publication. It is therefore deemed accepted. See Nwogu Vs Atuma (2013) 9 and 1 SCNJ 217 and Lawson Jack Vs The SPDC of Nig. Ltd (2002) SC (part 11) 112.
I have therefore no difficulty in accepting the facts relating to the 1st respondent's offer and the News paper publication which the appellant and the 2nd and 3rd respondents in a fruitless effort tried to show that the boys quarters was inadvertently advertised. If it was a mistake on the part of the 2nd and 3rd respondents, the 1st respondent should not be made to suffer for that mistake. Also the 2nd and 3rd respondents cannot take advantage of their wrong. See Ibrahim Vs Fulani and others (2009) 18 WRN 40.
The appellant, the 2nd and 3rd respondents relied heavily on the survey plan, valuation report and letters of offer of other occupants of the Federal Government Houses to show from the survey plan1-that Block 1 and Block 4BQ are different. Also to show is the other occupants of the house whose houses were sold to them without the boys quarters. However both the survey plan and the valuation report are undated and unsigned. Be that as it may they are immaterial this case. So also the offer letters of other occupants of the Houses.
The primary duty of court as an impartial obiter is to interprete contract entered into between parties in the fight of their clear intentions as conveyed by the agreement - Faloughi Vs First Impression Clearness Ltd (2014) 7 NWLR (part 1406) 335 at 343.
In the instant case the parties have agreed as to the sale and purchase of the properties, all the necessary formalities having been concluded. In such circumstance, the trial court was right in deciding in favour of the 1st respondent. As extrinsic evidence will not be allowed to contradict, vary and alter the effect of a written contract- Idufueko Vs Pfizer Products Ltd (2014) 12 NWLR (part 1420) 96 at 100, See also Udogwu Vs Oki (1990) 5 NWLR (part 153) 721.
Contrary to the submissions of the appellant's counsel, that the decision of the trial court is perverse and should be set aside by this court; a court's decision will be held to be perverse where:
a) It is speculative and not based on evidence;
b) The court shut its eyes to the obvious;
c) The court took into account matter which it ought not to have taken into account - Adegbo Vs Ogbanje (2014) 10 NWLR (part 1416) 541.
However nothing from the records of appeal supports the contention of the appellant that the judgment complained about was perverse. Where the decision is not perverse an appellate court can only affirm same.
Issue one is resolved in favour of the 1st respondent against the appellant.
"Whether the trial court was right in dismissing the Appellant's counter-claim".
In submission on this issue, the appellant's counsel referred to Block 4BQ as having established his title to it relying on the case of Ideundun Vs Olumaga (1976) 10 SC 227 abd Atanda Vs Ajadi (1989) 3 NWLR (part 111) 511 at 533,
He referred to exhibits "C" and "S" as having established a valid transaction by which the appellant acquired title to Block 4BQ.
That the sale of Block 1 to the 1st respondent is null and void and that the 1st respondent trespassed upon Block 4BQ sold to him. The court was referred to Dyeries Vs Mobil Oil Nigeria Pic (2011) 1 NWLR (part 1175) 309 and Saka Vs Ijuh (2010) 4 NWLR (part 1184) 405.
He urged the court to resolve the issue in favour of the appellant.
The 1st Respondent's counsel in response to this issue, argued same in issue v which he formulated.
However issue v having been struck out, there is no response on this issue by the 1st respondent.
For what it is worth, a counter-claim is a claim which must be proved to the satisfaction of the court as required by law. The onus of proof which lies on the plaintiff to prove his claim, is also on the defendant to prove the averments in his counter-claim against the plaintiff or he will fail in his claim. See Unokan Ent Ltd Vs Omuvwie (2005) 1 NWLR (part 907) 293.
A counter-claim is for all intents and purposes, a separate and independent action in its own right - Usman Vs Garke (2003) 14 NWLR (part 840) 261.
In the instant case the appellant has his amended statement of claim and counter-claim filed on 09/06/2010 at pages 512-532 of volume 2 of the record. At page 524 where the counter-claim is reflected, the appellant only reproduced the averments in the statement of claim. At pages 526-527 paragraph 66 the appellant averred that by way of counter-claim paragraph 39, 40 and 41 of the statement of defence are hereby repeated.
Throughout the counter-claim it is just a repetition of what were deposed in the statement of defence.
The appellant has not couched the counter claim in such a way to establish same with cogent and credible evidence as required by law.
A counter claimant has the burden to establish his counter-claim, failure of which the counter-claim will be liable to dismissal - Nsefit Vs Muna (2014) 2 NWLR (part 1390) 151.
Section 138(1) of the Evidence Act, 2011 is very clear that the burden of proof lies on the party who would fail if no evidence at all is established see Duru Vs Nwosu (1989) 4 NWLR (part 113) 24 and Dangote Vs Civil Service Commission Plateau State (2001) 4 SC (part 11) 43.
Be that as it may, it must outrightly be remarked that the courter-claim at page 524 of volume 2 of the record is no counter claim, I can understand why the trial court dismissed it I also have no difficulty in dismissing same.
Issue 2 is resolved against the appellant in favour of the 1st respondent
I find the appeal lacking in merit and it is accordingly dismissed. The judgment of the FCT High Court in suit No. FCT/HC/CV/ 1117/2009 delivered on the 24th day of October 2011 is hereby affirmed.
The cost of N30,000.00k is awarded to the 1st respondent against the appellant.
JOSEPH E. EKANEM. JCA: I read in advance the judgment which has just been delivered by my learned brother, T.Y. Hassan, JCA. I agree with the reasoning and conclusion therein.
In Exhibit "D" the letter of offer to the 1s' respondent dated 30/10/2015 by the office of the 2nd respondent, she was offered the property known as a Duplex situate at Block 1 NMA/Ministry of Transport Staff Quarters, Karu, Abuja, FCT together with "all appurtenances,"
As ably demonstrated by my Lord, the phrase "appurtenances" means "something that belongs or is attached to something else/1 See Black's Law Dictionary 8th Ed. P.111. I have no doubt in my mind that the Boys' Quarters of Block 1 NMA/Ministry of Transport Staff Quarters, Karu, Abuja, belong or is attached to the said property that was sold to and paid for by the 1sl respondent on 21/10/2006. It therefore formed a part of the property sold to the 1st respondent.
Having paid the purchase price and being in possession thereof the 1st respondent acquired an equitable interest in the property including the Boys1 Quarters which ranks as high as a legal estate and which cannot be defeated by a subsequent sale or conveyance of the whole or a part of it (including the Boys' Quarters) by the 2nd and 3rd respondents to the appellant.
It is on account of what I have stated above and the more comprehensive reasons ably marshalled in the lead judgment of my learned brother that I also hold that the appeal lacks merit and I also dismiss it.
I abide by the consequential orders made in the lead judgment.
MOHAMMED MUSTAPHA, JCA.: I had the privilege of reading before now in draft form the judgment just delivered by my learned brother, T.Y. Hassan, JCA.
My learned brother has elaborately resolved all the issue that call for determination in this appeal. 1 too find the appeal lacking in merit and accordingly dismiss same.
I abide by the order as to costs.
1. Ikechukwu Ikogwe for Appellant
2. Malachy Nwaekpe
3. Gabriel Egharoba for 1st Respondent
4. F. S. Jimba
5. B, W- Sekpe for 2nd and 3rd Respondents