Vol 8 No 13 14th January 2008 'Okusuga v. LSG & 2 Ors

IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT HIGH COURT NO. 29 (GENERAL CIVIL DIVISIONS
BEFORE THE HONOURABLE JUSTICE A. J. COKER (MRS.)
TODAY, TUESDAY THE 18TH DAY OF DECEMBER 2007

SUIT NO. LD/11 64/2006
BETWEEN:
MRS. TINUKE OKUSAGA CLAIMANT
AND
1. LAGOS STATE GOVERNMENT
2. THE ATTORNEY-GENERAL OF LAGOS STATE DEFENDANTS
3. THE MINISTRY OF HOUSING

CONCLUSION


JUDGEMENT



In the case of NLEWEDIM V UDUMA (supra) cited by Counsel, the Court held @ ratio 3 that for a lease to be valid and enforceable, it must contain the following:

• The parties concerned;
• The property involved;
• Term of years;
• Rent payable;
• Commencement date;
• Term as to its covenants &
• Mode of determination

In this case. the parties differ as to whether there is a certain commencement date.

This Court must discountenance at this stage all submissions of Defendants' Counsel as to the uncertainty of the parties themselves. From the totality of the evidence before the Court, even that of their sole witness, the offerer in the disputed transaction is clearly the Lagos State Government and the allottee, the Claimant as named in her Letter of Allocation - Exhibit C3. x'

On the vexed-issue of the commencement date, it is clear that no commencement date is " stated in Exhibit C3. But in the Supreme Court in the case of UBA V TEJUMOLA (supra) even as cited by Mr. Lawal Pedro for the Defendants, held @ page 664 that

"....The terms of commencement must either be certain or capable of being
ascertained before the lease takes effect."

See also the Supreme Court case of BOSAH V OJI (2002) 6 NWLR (PT 762) 137 esp. @ 156-157 where it was held that:

"Although in order for a lease to be valid it must be for a definite period in the sense that there must be a certain beginning and a certain ending, this does not imply that the parties must immediately fix the exact date of commencement of the lease. The parties may agree that the lease shall commence upon the occurrence of an uncertain event, such as, upon declaration of war or upon possession of the premises being vacant."

This Court must therefore agree with the submissions of the learned Silk for the Claimant that from the conditions stated in Exhibit C3, the commencement date of the Lease is directly related to and conditional upon the handing over of possession.
This is clearly discernible from the 3rd condition of Exhibit C3 when the annual rent is payable and from the 7th condition therein (as afore-reproduced).

More importantly, it is clear from the documentary evidence and not really in dispute that the handing over of possession is hinged upon the completion of the project.

It must nonetheless be observed that there is no evidence before this Court of a definite completion date. No completion date is stated in Exhibit C3. The only evidence of this is the oral evidence of the Claimant herself and she testified that initially she was orally informed it would be 30/6/02, then December 2002, then nothing until August 2003 when they were invited to a meeting and the issue of review of costs came into play leading to this suit.
DW1, the sole witness for the Defence also did not offer any conclusive evidence on this point in her evidence in chief. Under cross-examination however, she did admit that the Houses were re-offered for sale after the completion of the project between 2004 and now as evidenced by Exhibit C7, and was not challenged on this.
This Court had no reason to doubt the credibility of the evidence of the witnesses of both sides but the evidence of an exact completion date remained inconclusive.

The only evidence of the Claimant's "entry" is her testimony that vide Exhibit C8, she was allowed to go in and make improvements to her allotted house on 3rd June 2003. As earlier stated no particulars of improvements allegedly made were given in her pleadings to support her evidence on this. It is this same evidence that the Claimant relies on to show that she has been put into possession of that said House- D25 in dispute. It is noteworthy that one of her reliefs before this Court seeks not a Declaration for but Possession and/or the vesting of same in her.

Suffice it to state at this stage that following USA's case (supra) and Bosah's case above, the only conclusion this Court ca draw is that the commencement date was conditional upon the handing over of possession based on completion of the project and thus ascertainable.

Further, in the light of the clear evidence before this Court that the project was not completed until sometime in late 2003 or early 2004, the Commencement date if at all. ascertainable, would be sometime thereafter. This Court so finds and holds.
See BOSAH's case (supra) @ page 157 where the Court held that:

"...where the date for the commencement of a lease is not specified but stated
by reference to the happening of a contingency which is uncertain on point of time, until the contingency happens, there is no enforceable lease."

On the effect of the disputed phrases on this parties' 'agreement', this Court has also read very carefully the cases cited and analyzed by both Counsels on the phrase "subject to contract" especially the ITI V Aderemi case. In the humble view of this Court, the Supreme Court was quite clear in those cases that the relevance of the phrase "subject to contract" turns upon the peculiar facts and circumstances of each case. Indeed in that said case per Uwaifo JSC, whatthis Court understood the Supreme Court to be saying is that where it is clear that the parties had entered into a binding contract, one of the parties could not then use that phrase at the conveyance stage, the concluding or formality stage, to renege on or back out of same where the full benefit of the contract had been taken.
In the same Aderemi's case (supra) @ page 27, the Court stated very clearly that the relevance of the phrase "subject to contract "must in each case be a question of construction whether the parties intended to undertake immediate obligations or whether they were suspending all liabilities until certain events happen."

In this case, the crucial question to ask is whether the contract was in fact concluded and enforceable by the payment of the. N16 Million selling price advertised, without more, to render the said phrases irrelevant, ineffectual and ineffective.

A close look at Exhibits C3 & C4 shows that the offer made by the Defendants is provisional. Black's Law Dictionary. 8th Edition defines "provisional" as: "1. Temporary 2. Conditional".

The 1st paragraph of the said Exhibit C3 states that the conditions listed therein are only "some of the conditions of the allocation"; whilst Exhibit C4 is written pursuant and further to the said 'provisional allocation" as contained in Exhibit C3.

It is the contention of the Claimant's Counsel that this Court ought to hold that there was a binding contract on the documentary (Exhibits C3, 4 & 8) and the oral evidence of CW1 - the Claimant herself that she was told the project would be completed & possession handed to her on 30th June 2003 when the building was concluded and that the Permanent Secretary confirmed at the meeting the then Minister of Housing held with the allottees that she had been allowed entry into the House to make renovations.

It is fairly well settled that in a civil case such as this, the onus of proof rests squarely of the Claimant and she must succeed on the strength of her case and can rely on the
weakness of the Defendants' case only where it supports her case. The standard of proof is n the preponderance of the evidence. See the following cases:

1. KODILINYE V. ODU (1975) 2 WACA 36
2. BALOGUN V. AKANJI (1988) 2 SCNJ
3. MOGAJI V. ODOFIN (1978) 3 SC 91 '
4. OWIE V. IGHIWI (2005) 1 S.C (PT II) 16 @ 35
See also Ss. 136 & 137 of the Evidence Act.

In the Supreme Court case of OLANLEGE V AFRO CONTINENTAL NIG. LTD (1996) 7 IWLR (PT 458) 29 esp. @ 46, per Iguh JSC, the Court held that:
"One of the fundamental principles of the law of contract is that the parties must reach a consensus ad idem in respect of the terms thereof otherwise the contract cannot be regarded as legally binding and enforceable. The burden of proof of the existence of a term of an agreement squarely rests on the party asserting such a term. It is clearly a matter of evidence, which has to be established by the party who asserts it. Failure to establish a vital term of a contract or where its existence is a condition sine qua non towards the successful prosecution of a suit upon which the contract is founded, render such a suit subject to dismissal"

In examining the oral testimony of CW1 before the Court, it is necessary to state firstly with respect to the learned Silk, that even if the Court were to accept the oral evidence of CW1, Court cannot accept it piecemeal but in its totality. Other words, the proviso 1(b) to Section 132 of the Evidence Act in respect of the said oral evidence acceptable to complement the documentary evidence on any uncertain terms the disputed "agreement", must avail both parties in this case.

Her evidence is that she was allowed to enter to make improvements upon her letter
seeking permission- Exhibit C8, and had proof of this. There is no official document or response to this letter authorizing the Claimant to so enter. More importantly, although not addressed even by the Defendants' Counsel in their submissions, this would appear to because it is in contravention of condition 9 of Exhibit C3 which states that;
"You shall not carry out any alterations or additions without the prior written consent of the Ministry. Violation of this clause shall lead to cancellation of the offer hereby made.........."

In addition, her evidence before the Court was that she knew others who had been allowed also enter and make similar improvements. No such proof or witness testified in this regard before this Court.

Secondly, it is her oral evidence that by her being allowed to enter, she had taken session but at the same time admitted under cross-examination that she is not in session or living in the premises because of this case.

More importantly, this contention that she had been put in possession in June 2003 vide her Exhibit C8 appears contrary to her evidence which is in line with the Defendants' case on their evidence before the Court that the project had not been completed even as at August 2003 when she was invited to the meeting by the 3rd Defendant. This is notwithstanding her testimony that her own House - D25, was at roofing and fittings stage. Paragraph 17 of her Written Statement on Oath of 22/10/04 is clear that she received no further communication from the Defendants until August 2003 by their letter-exhibit C4.

Even if the evidence is admitted or uncontroverted, the question is whether it satisfies the standard of proof in respect of the fundamental term of the contract i.e. the commencement date of her Sub-Lease which is tied to and hinged upon the handing over of possession. In other words, has the Claimant on this ipse dixit been able to prove that Possession of the disputed house was officially handed over to her by the 3rd Defendant to 'trigger a commencement date and thus a conclusion of the contract?

From the above, it is clear that her "entry" was "unauthorized" and not by written approval as required. It is the view of this Court that the Claimant cannot and 'has not satisfactorily
discharged the onus on her in that regard by her oral evidence.

Lastly, it is Claimant - CW1's oral evidence that even if the 3rd Defendant had made these further charges, there was no formal demand of this from her. However, she admitted under cross-examination evidence that she (and other like allottees) were duly informed of the reviewed cost of completion of the House in dispute - N40 Million at the same meeting held after receipt of Exhibit C4. This is in line with the Defendants' evidence before this Court. She was thus aware of the new cost and balance to be paid.

More importantly, if this last piece of evidence is related to Exhibit C3, the 1st provision is very clear that it is "the selling price of the House" that "is N16 Million". The undisputed & unchallenged evidence of DW1 vide paragraphs 16-26 of her Written Oath before this Court is that the additional cost communicated to the allottees including the Claimant was
for the completion of project i.e. infrastructure, e.t.c as per these depositions are
reproduced hereunder for ease of reference:

16. In the meantime the Defendants continued to expend millions of Naira to service the loan taken from M^C International Bank in respect of the housing project that has been abandoned by G. Cappa.

17. By the time new contractors were eventually found and negotiation for the re-award of the construction of the houses commenced, the cost of completing the houses became more than doubled.


18. It was also at this period of re-negotiating for the continuation of the construction of the housing project that the Defendants realized that necessary infrastructure that will serve the Housing Scheme was omitted in the Bill of Quantities earlier prepared and it was obvious that the cost of such infrastructure to be put in place was not taken cognizance of when the project was first awarded to Messrs. G. Cappa and the houses advertised for sale.


19. That such infrastructure to serve the housing scheme includes:

• Electricity and electrifying the Estate with its own transformer
• Good drainage, access roads and interlocking road network
• Boreholes with water treatment plant
• 24 hour security network and Police post
• Perimeter fence with access gates
• Car parking lots, etc.

20. That as a result of the omission, the cost of providing the above listed infrastructure and more was not included in the provisional advertised prices qfW6 Minion, W2 Million and f410 Miff ion in respect of detached house, duplex and 3 bedroom terraced respectively.

21. That the inclusion of the provision of these infrastructure in the new re- awarded cost of construction coupled with the unending inflationary trend in cost of building materials shut up the completion cost of the housing projects to over 500% of the initial estimated cost of construction.

22. When it became clear that the financial burden on the resources of government in pursuance of its Lekki II Housing Schemes was becoming onerous and at the expense of the provisions of other social amenities for the populace of Lagos State, the 3rd defendant invited the provisional allottees to a round-table discussion with the aim of making them to contribute to the provision of the infrastructure which they were going to enjoy.

23. The Defendants aver that at the said meeting it was resolved that that infrastructure would be provided at extra cost to the provisional allottees to which the allottees did not object

24. Accordingly on the 21st August 2003 all the allottees including the Claimant herein were notified in writing that the provisional letter of allocation issued to them shall subsist subject to the completion of the Housing Estate when the final sale price shall be conveyed to them.

25. That as at 21st of August 2003 (and even to date) there was no binding formal contract for the sale or lease of the House in dispute as the final purchase price was yet to be determined.

26. That when the final purchase price of each House was determined on completion of the project viz f440 Million for the detached house, H2B Million for semi detached, and N425 Million for terraced house, all the provisional allottees were notified with a demand to pay the difference.


Can this Court then hold that the additional costs as above now demanded of the Claimant do not conveniently fit into the 2nd and 12th conditions stated in Exhibit C3, the said Letter of Allocation?
This-Court does not see how it can so hold.
It is not in dispute that the Claimant has paid the selling price for the house; that she may even have identified her own particular allocation & house, but as rightly pointed out by the learned Defendants' Counsel, Mr. Lawal Pedro, her obligations under the contract did not end there. . ",

In the Supreme Court case of FGN v ZEBRA ENG. LTD (2003) WRN @ 1, esp. @ 29-30, 59-60 the Court held that; ^

"it is settled Law that the offer to enter into a unilateral contract is accepted on commencement of performance, even though completion of performance is a condition precedent to the offeror's liability to perform his promise." (Underlining mine)

The Supreme. Court relied on HALSBURY'S LAWS OF ENGLAND 4™ Edition Volume 9 par 657 and the case of ERRINGTON V ERRINGTON & WOODS (1952) 1 ALL ER 149.
See also the old case of AUSTRALIAN HARDWOODS PTY LTD V COMM FOR RAILWAYS (1961) 1 All ER 737 per Lord Radcliffe who observed as follows:

"A plaintiff who asks the Court to enforce by mandatory order in his favour some stipulation of an agreement which itself consists /of interdependent undertakings between the plaintiff and the defendant cannot succeed in obtaining such relief if he is at the time in breach of his own obligations."

Thus this Court believes it can safely find and hold that the payment of the selling price of N16 Million for the House was clearly and merely indicative of an intention to enter into a binding contract which was conditional & executory i.e. subject to the other conditions contained in the letter of allocation and thus not concluded by that payment.
See the BLACK'S LAW DICTIONARY 5™ Edition which defines-an executory contract as one not fully performed or completed though a contract nonetheless.
The said contract could thus only become binding and enforceable more importantly when all the conditions are fulfilled and/or executed.

See the case of TSOKWA V BON 10 NSCQR (Part 2) @ page 762, where the Supreme Court held thus:

"It is trite Law that once a condition precedent is incorporated into an
agreement, that condition precedent must be fulfilled before the effect can flow. All conditions are

(a) conditions precedent i.e. the sine qua non to getting the thing or

(b) conditions subsequent, which keep and continue the thing."

See also the recent Court of Appeal case of MUYIWA EWEJE V O.M. OIL INDUSTRIES LTD CA/U476/03 reported in THISDAY Tuesday December 11th 2007 VOL 12 NO. 4616 @ PAGE 75 where the Court held thus:
“It is not every contract that is enforceable. It is from the terms of the contract that its enforceability is determined."

In the said Supreme Court case of TSOKWA V BON (supra) @ 27-31, the Court held relying on its decision in the old case of TUKUR V GONGOLA STATE 1984 4 NWLR PART 117 @ 517 esp. @ 542 that the expression "subject to" in respect of a contract connotes that that binding ness of same is conditional upon the terms of the said contract.

In the case herein, full payment for the project including charges and reviewed cost are pre- conditions for completion and handing over of possession whereas transfer fees, insurance fees and executing a Deed of Sublease if necessary are conditions subsequent.

Thus the phrases "provisional" in Exhibits C3 & 4 & "subject to contract "in Exhibits C3 are very relevant and applicable to the facts and circumstances of this case to the extent that unless and until all pre-conditions were complied with by the allottee, CW1 in this case, and Possession formally and officially handed over, the contract could not be said to be concluded preparatory to its enforceabiiity. It is necessary to add that the fact that the phrase was not included on Exhibit C4 did not diminish its applicability to this case. This Court thus so finds and holds.

Having so found, this Court further finds that the contract could not or cannot take effect unless and until the Claimant fulfilled all pre-conditions and terms in respect of same with particular reference to payment of charges and costs as demanded of the Defendants.
See the case of FGN V ZEBRA ENG LTD (supra) @ (2003) 3 WRN @ 1 esp. @ Pages 59-61 per Ayoola JSC.

This case must therefore be distinguished on the facts from I.T.I, v Aderemi's case and Okechukwu's case cited by Claimant Counsel where the full consideration had been received by the Landlords who had put the Claimants in those cases in possession then subsequently claimed that the contract was not binding on grounds of uncertainty of tenure.

As rightly observed by the Defendants' Counsel, Mr. Lawal Pedro, The issue of whether these additional charges are exorbitant is not an issue for determination before this Court;
So also, the issue of which party ought to bear the brunt of the failure of the inclusion of the infrastructure in original charges and failure of the contractor to deliver. Had these issues been based on declaratory reliefs in that regard, this would have called for a consideration of the equitable remedies available to the Claimant as eloquently analyzed by the learned Silks for the Claimant in their Written Address.

The firm position of the Claimant at all times is that she (and other like allottees) has paid fully on the contract and were entitled to be vested with possession of their houses, in her case, House D25 by that payment of N16 Million, without more.

The duty of the Court is to evaluate the evidence before it as adduced by both sided and place same on an imaginary scale as posited in the locus classicus of MOGAJI V ODOFIN m(supra) and arrive at a determination based on the application of the Law and of course
good conscience to that evidence. As rightly observed by Defendants' Counsel, there is unfortunately no room for sentiment. See on this UDOSEN V STATE (2007) 1-2 SC 27 esp. @74.
This Court is thus persuaded by the submissions of the Defendants' Counsel on their eightier evidence and this main issue resolved in favour of the Defendants.

ISSUE 2
It is not in dispute that the Claimant has failed and or refused to fulfill those additional conditions. There is undisputed evidence that in the light of the circumstances leading up to the review of additional costs to be paid by the allottees, the Defendants had offered to refund the Claimant's monies with interest or reduce the total cost by N5 Million- It is also not in dispute and on the record of this Court that some allottees had taken one or other of these options.

In the light of the fact that the Court has found for the Defendants on the first issue, and these above circumstances, this Court does not see how it can order specific performance in respect of an executory contract in which the terms and conditions which will enable the Defendants fulfill1 their obligations under same have not been fully complied with, notwithstanding the Claimant's part-performance especially in the face of undisputed evidence before this that the Project has since been completed using funds from loans taken by the Defendants. This fact was also admitted by the CW1 under cross-examination.

Indeed failure of the Claimant to fulfill the remaining terms and conditions of the contract in the view of this Court is good ground for the Defendants herein to consider same at an end and rescind same.
See on this OKECHUKWU ANURUBA V EBENATOR COMM. BANI LTD & ANOR (2005) CLRN 114 esp. @ 129.
Specific performance in this Court's view will thus not meet the justice of this case. And this Court so holds. See the case of I.T.I V ADEREMI (supra) @ pages 28 per Iguh. J SC where the Court held that in a case such as this, there is as yet no final agreement of which specific performance could be enforced against the Defendant. In other words, to sue for specific performance is to assume that a contract is concluded, subsisting and to insist it should be performed.
The issue of rent therefore does not require consideration by this Court.

As earlier observed, there is no specific claim for damages in the reliefs sought by the Claimants in their Amended Statement of Claim. In ITI V ADEREMI's case (supra), the Supreme Court stated at page 22 that

"As the Order for specific performance is an equitable remedy and therefore discretionary it will in my view be a grave error of pleadings to claim for specific performance without at the same time and in the alternative claiming for damages".

The oral and written submissions of learned Silk for the Claimant does not suffice as or cannot constitute Q specific relief for damages not claimed since the Claimant has in any event failed to establish that there had been a concluded contract, a breach of which consequently entitled her to an Order of Specific. Performance and damages.
It is now very well settled that a Court cannot give a relief not sought by a Claimant.
See on this the following cases:

* EGONU V EGONU (1978) 11-12 S.C 111
* AJAYI V TEXACO NIG LTD (1978) 9-1.0 S.C 1 @ 27
* ILONA V IDAKWO (2003) 32 WRN @ 121.

The Claimant would have done better to include in her reliefs in addition to particularized or special damages, an alternative relief for the refund of her N16 Million (plus interest as offered by the Defendants or otherwise) and is still at liberty to sue for this.
See the case of HAIDO V USMAN (2003) 34 WRN 115 @ 132-133.

Judgment is entered in .the Defendants' favour dismissing all the Claimant's reliefs in their entirety. The Interlocutory Injunction granted in the course of this suit is discharged and therefore falls away accordingly.


Hon. Justice Adenike J. Coker (Mrs.)
18/12/07