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

Vol 8 No 14 21st January 2008

SQUIB CASE LAW

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

FACTS

The facts of this case are simply that the Claimant, one of many, paid N16 Million for a detached house as advertised by the Lagos State Government in their Millennium Housing Scheme at Lekki Phase II. It is the case of the Claimant that having paid the said sum and been allocated House D25 on the master plan, the contract between herself and the Defendants was concluded and that the subsequent 140% increase in the selling price of the property was unilateral and a breach of contract for which inter alia Specific performance of the contract plus damages is the only equitable remedy.

The Defendants on the other hand contend that the contract was incomplete, subject to contract and never crystallized because of the failure of the Claimant to complete payment of the reviewed completion cost as demanded by them. Consequently, that they were entitled to offer same to third parties to cover their costs; third parties who have since taken up the said houses. As such the only equitable remedy is for a refund of the Claimant's money with interest, which remedy the Claimant refuses to accept.

Trial commenced on the 26th day of June 2006 with the evidence of the Claimant who testified on oath in English language as CW1 in line with her pleadings as above reproduced. She adopted her Written Statements on Oath of 25-10-04. 21-6-06 & 30-6-06 as her evidence in chief and tendered Exhibit C8 - letter of 3-6-03 - letter written to the 3rd Defendant seeking permission to enter into her allotted house to make improvements therein.


The following Exhibits had been admitted by consent of Counsel during the Pre-Trial
Conference and marked accordingly:

CI - Prototype Application Form & Survey Layout
C2 (A-D) - 3 Treasury Receipts for the total sum of N16 Million & Acknowledgment
of receipt of Completed Application Form
C3 - Letter of Provisional Offer of Allocation of 13/11/01
C4 - Letter of Lagos State Government dated 28/1/03
C5 - Photocopy of Advertorial on Page 72 of This Day Newspaper of 26/11/03
C6 - Photocopy of Advertorial on Page 26 of Guardian Newspaper of 1/12/03
C7 - Photocopy of Advert of Millennium Houses for sale by the Ministry of Housing
C8- Letter of the 1st Claimant dated 3/6/03
C9 - Survey & Rental Valuation Report by Bode Adediji Partnership

Under cross-examination by Mrs. L. A. Oluyemi, Assistant Director. Ministry of Justice, the Claimant read Paragraph 3 of Exhibit C3 - the Letter of Allocation and insisted that the commencement date of her sublease was 30/6/02. She admitted that she does not have a Deed of Sublease but that after paying the purchase price of 416 Million, she was told orally that she would be given possession on the said 30/6/02.

When asked if as per Paragraph 12 of Exhibit C3 "other fees" had been communicated to her, she said she had spent much more money than fees but she had not paid any other fees yet. When asked if she had been given possession, she stated that she had been in possession since 3rd of June 2003 as the Defendants gave her permission to go into the house and make. improvements in the property. She stated that she did not have any letter giving her permission to enter and make the said improvements but that her entry was approved and she had proof. She however stated that she is not living in the property because of this Court case.

She also testified that at the meeting she referred to in Paragraph 22 of her Statement on Oath which she was invited to by the Defendants, they were informed that the Defendants were having difficulties finishing the houses. That she felt this did nor apply to her as her, house had already been roofed and was at fittings stage. She said she informed the Minister that she had started renovation works in her own house; a fact which she said the then Permanent Secretary admitted she gave permission for and was aware of. She stated that some of the other houses, e.g. D2 or D20 were not at the same stage as hers but that she is. only aware of the status of her own house. She admitted that the Commissioner
informed them at the meeting that the original contractor could not complete the work. She said that she did employ one Bode Adediji to prepare a Valuation Report dated 20/12/05 in respect of the said disputed property, which was prepared and given to her after the institution of the suit. This Valuation Report was tendered through her and marked Exhibit
C9.

She further testified that she took the matter to Court because the LASG, i.e. the 1st
Defendant herein, asked her to come and pay an outstanding balance on the house but that she paid fully in 2001, the selling price .of Nl 6 Million. She reiterated that it was the allottees' monies that were used to build the houses and that the Ministry, the
Defendant, gave the cost of the house in dispute as N16 Million as written in the Letter or Allocation" Exhibit C3.
When asked if as at the time the houses were completed, the LASG communicated the cost of each house aside from the purchase price, she testified that they did not discuss that. Finally she admitted that she knew that the LASG took loans to build the said houses.

She was not re-examined.

CW2, one Austin Eboigbe testified on oath also and in English Language, he adopted his Written Oath of 21/6/06 as his evidence in chief. He stated that he prepared Exhibit C9. He was neither cross-examined nor re-examined. . -

The Defence opened their case on the 14th day of November 2006 with the evidence of their sole witness - DW1 - one Mrs. Temitope Akinbola, a Principal Land Officer since 2001 with the Ministry of Housing, Alausa, Lagos. She testified that she was aware that the
Claimant amongst many others sued the LASG in respect of Houses at the Millennium Housing Estate, Lekki and adopted her Written Oath of 25/10/06.

Under cross-examination by Mr. Ademola Akinrele, SAN, DW1 stated that she knew the Claimant but only by her name. She was asked to read Paragraph 9 (iv) of Exhibit C3 and state if a commencement date is stated therein to which she sa^ no. DW1 however testified that the houses were leased to members of the public between 2004 and the time/date of her testimony. Finally, she testified that she was not aware that it was after the notification of this suit that the houses in dispute were leased to other persons.

Written Addresses were filed and adopted by the Counsel to the parties as follows:
• Defendants' Final Address of 16/2/07;
• Claimant's Final Address of 8/10/07 & ,
• Defendants' Reply Address of 2/11/07.

The Claimant's Counsel raised 5 Issues for Determination in their Written Brief as follows;


1. Whether there is as concluded a binding agreement for the sale by assignment of House D25 to the Claimant.

2. Whether there is concluded, a binding agreement between the Claimant and the 3rd Defendant for the lease of the House D25 to the Claimant for a term of 90 years commencing on the 30th of June, 2002, alternatively;

3. Even if the lease is invalid or void, whether pursuant to the equitable doctrine of part performance there was concluded a binding agreement for the lease of the House D25, for a term of 90 years commencing from the 3rd of June 2003.

4. Whether the Claimant is entitled to specific performance of the contract for sale or lease of House D25.

5. Whether the Claimant is entitled to the rental income in addition to specific performance from the date the property ought to have been conveyed.

The Defendants on the other hand raised 3 main Issues for Determination:

(a) Whether there was a concluded contract i.e. a binding sale or lease
agreement of House 025 between the Claimant and the Defendants.

(b) Whether ah order of specific performance is appropriate in the circumstances of this case (s).

(c) Whether the Claimant is entitled to rent in the absence of a binding contract and when the Defendants are willing to refund her deposit with
15% interest.

From the above highlighted pleadings, evidence of the parties and issues raised, it is
necessary to state that the following facts are not in dispute:

1. The Claimant is one of 17 persons suing the LASG in respect of Houses in the Millennium Housing Estate Lekki II (see pages 1 & 2 of Claimant's Written Address) and consented to this suit being a test case.

2. That some of the original Claimants had decided to withdraw their suits and either pay the additional costs demanded by the LASG in respect of the said houses or obtain a refund.

3. The Claimant paid N16 Million for her own detached house as advertised vide
Exhibit C1.

4. The original contractor did not complete the Project in June 2002 and a new
contractor had to be hired to complete the project.

5. That the Project has since been completed and the LASG offered same to third parties vide Exhibit C7 - wherein the type of detached house claimed herein by the Claimant was offered at N40 Million.

There is no doubt that the dispute in this suit revolves mainly around the interpretation of the content of the provisions/terms of the Claimant's Letter of Allocation dated 13/11/01- Exhibit C3 marked "subject to contract", and Exhibit C4, which is not so marked vis-à-vis other correspondences and the oral evidence before the Court. It is thus necessary to reproduce for ease of reference, the said Exhibits C3 & 4:

Exhibit C3
13/11/01

Our Ref. No. MH/EST/HIH/LEKKI/0001381


MRS TINUKE OKUSAGA

198, AWOLOWO ROAD
IKOYI

Dear Sir/Madam,

RE: PROVISIONAL OFFER OF ALLOCATION OF A 5 BEDROOM. DETACHED HOUSE AT THE MILLENNIUM HOUSING ESTATE - LEKKI II

With reference to your application for a house, I am happy to inform you that you have been offered House D25 (5 Bedroom Detached House) SUBJECT TO CONTRACT at the above Housing Estate, under the ministry's High Income Housing Programme; some of the conditions of the allocation are as follows:

1) The selling price of the house is N6,000,000.00

2) In addition to the selling price of the house, you are required to pay other fees referred to as "Transfer fees" which will be communicated to you later.

3) Through the term granted, you will be expected to pay annual fee of N25,000.00 known as lessor's rent. This fee which is payable on taking possession is revisable every 5 years.

4) The title to be granted is a sub-lease for a term of 90 (Ninety) years, subject to conditions as the state government may determine from time to time.

5) It is hereby agreed by the parties herein that you cannot transfer or alienate the house without the prior written consent of the Ministry of Housing.

6) The ministry reserves the right of first option to purchase the house/unit should you decide to sell.

7) The house is offered in the condition and state it is, and on taking possession, you must expressly accept that the Ministry is under no further obligation to you in respect of any defect whatsoever on or specifically stated in writing to provide in the house.

8) It is compulsory that you have an insurance policy against fire and other perils. The first installment shall be paid to a named insurance company before taking possession. You shall make available to the ministry for inspection/scrutiny the Insurance policy by the 30th January of every year during the said period of sublease.

9) YOU SHALL NOT 'CARRY OUT ANY ALTERATIONS OR ADDITIONS TO THE HOUSE WITHOUT THE PREVIOUS WRITTEN


CONSENT OF THE MINISTRY VIOLATION OF THIS CLAUSE SHALL LEAD TO CANCELLATION OF THE OFFER HEREBY MADE AND/OR DEMOLITION OF THE SAID UNAUTHORISED ADDITION OR ALTERATION. THE COST OF DEMOLITION OF SUCH STRUCTURE SHALL BE BORNE BY THE ALLOTTEE.

10) The house shall be USED FOR RESIDENTIAL PURPOSES ONLY.

11) The violation of any of the above stated conditions/terms shall result in the withdrawal of your allocation, whenever it is made to you.

12) Details of all other fees to be paid shall be communicated to you in due course.

Please note that the government reserves the right to add minimal charges , to the above cost of the house before completion when the need arises. Note also that you will have to pay the cost of any extra Land that may abut to your house.

Congratulations.

(signed)
ARC. (MRS) O.A. EJIWUNMI
PERMANENT SECRETARY (HOUSING).

Exhibit C4

Our Ref No. MH/EST/HIH/LEKKI 11/0001381/20 28TH JAN.. 2003

MRS. TINUKE OKUSAGA
198 AWOLOWO ROAD
IKOYI.


Dear Sir/Madam,

MILLENNIUM HOUSING ESTATE - LEKKI II
RE: COMPLETION OF 5 BEDROOM DETACHED HOUSES

This letter is to acquint (sic) you of the developments on the above subject
Estate wherein you have been provisionally allocated a unit of the 5 Bedroom
detached houses.

2. as you are probably aware, of all the contractors working on various types of houses on the" Estate, Messrs G. Cappa who were awarded the construction work of the detached houses have been very slow, inactive and have not given the job the urgency it deserved in spite of being duty paid!

3. Pursuant to the ineffectiveness of the company on the job, the Government, after several efforts to make them perform proved abortive, had to determine the contract.

4. The contract has now been re-awarded to equally reputable contractors with proven track records.

5. It is believed that all documentations for the new contracts will be completed soon, and, hopefully the contractors shall move to site by the middle of February 2003.

6. We appreciate the fact that you should be duely (sic) intimated of developments on the project and this shall form our pattern henceforth until the properties are handed over.

Please bear with us.

Thank you.

(signed)
ARC (MRS) O.A EJIWUNMI
PERMANENT SECRETARY
MINISTRY OF HOUSING.

From Exhibit C3 above, it is clear that what was offered to her is a Title of a Sublease of 90 years as per Paragraph 4 thereof. All submissions by the Claimant in respect of an outright sale as per the 1st issue raised by the Claimant's Counsel are thus discountenanced accordingly.

In this Court's view the main issues to be determined are:

1. Whether there was a binding, concluded and enforceable contract between the Claimant and the Defendants for a Sublease for 90 years; &

2. If so, whether the Claimant is entitled to her claims for specific performance, vesting of possession, injunction and damages.

The determination of the suit therefore rests mainly on the 3rd alternative relief of the
Claimant.

ISSUE 1

It is the contention of the Defendants that the terms "provisional offer" and "subject to transfer" show the agreement between the parties was still at negotiation stage notwithstanding the payment of N16 Million selling price paid by the Claimant, especially


since the Claimant herself admitted that there was no Deed of Lease executed in her
favour. Counsel referred to the following cases at Pages 3 & 4 of his Written Brief: U.B.A. LTD V. TEJUMOLA & SONS LTD (1988) 2 NWLR (PT 79) 662; LIMAN V MOHAMMED (1999) 6 SC (PART 1) 67 @ 75-76; LAW V JONES (1973) 2 AER 437; INTERNATIONAL TEXTILES INDUSTRIES (NIG) LTD VS ADEREMI & ORS (1999) 6 SC (PT 1) 1.

It was the further contention of the Defendants' Counsel, Mr. Lawal Pedro, that Exhibit C3 could not be a binding contract as it was devoid of some fundamental terms particularly the commencement date and the additional fees and costs to be paid. Counsel submitted further at page 5 of their Written Address that there is evidence that these terms were not certain from the uncontroverted testimonies of both CW1 & DW1 who testified as to a meeting with the then Minister of Housing where the Claimant (and others) were, intimated of a variation in construction cost necessitating an increase in the prices of the houses and the shift in the completion date of the buildings. He further submitted that this evidence was in line with paragraph 27 of the Amended Statement of Claim.

Counsel therefore urged the Court to hold that in the absence of an agreement of fundamental terms between the parties there was no binding contract for a sublease. He cited the case of ETUATAMI V OLAIYA (2001) 18 NWLR (PART 74?) @ 572 on this.

It is the submission of learned Silk for the Claimant on the other hand that the term "subject to contract" is irrelevant and inapplicable where both parties proceeded on the basis that there was a contract- He contended that the Claimant's Counsel had misconstrued the Court's decisions in the 3 cases cited by them namely UBA's case, Liman's case and International Textiles Industries case, especially the latter case. He therefore submitted that taking into consideration the dictum of Uwaifo JSC in that case, the phrase "subject to contract" has no effect in the current state of our Conveyancing Law and thus immaterial to the contract made between the parties as the letter subsequent to Exhibit C3 after the Claimant had paid the advertised price for the House, i.e. Exhibit C4, was not marked "subject to contract".

It was Learned Silk's further contention at Page 7 of his Brief that althoughJt is conceded that Exhibit C3 does not state a commencement date, the same document - Exhibit C3 - makes it ascertainable upon the delivery of possession to the Claimant and that there is uncontroverted evidence of the Claimant herself that she was allowed to enter to make improvements in her property. Counsel relied on the following cases at pages 7-9 of their Written Address on this: OKECHUKWU V ONUORAH (2000) 15 NWLR (PT 691) 597; NLEWEDIM V UDUMA (1995) 6 NWLR 385 @ 400; WESTLEY V WALKER (1878) 38 L.T 284

Counsel therefore submitted that delivery of possession took place on or around the 3rd day of June 2003 when the Claimant was allegedly "allowed entry" into the house to carry out improvements therein as evidenced by her uncontroverted testimony which ought he urged the Court to deem as admitted; Or alternatively on the 30th of June 2002, the date as per her ipse dixit when she was told that the houses would be completed.
He therefore urged the Court to hold that there was a completed contract orally and in writing and by part-performance and that the Court is bound to protect the equity created in favour of the Claimant by these so that same would not be defeated or frustrated by the Defendants and to grant an Order for Specific performance. He relied on the following cases at Pages 12 & 13 of his Written Brief: INTERNATIONAL TEXTILE INDUSTRIES V ADEREMI (1999) 8 NWLR Pg 268; OKECHUKWU V. ONUORAH (supra).

Finally on this point, learned Silk contended that contrary to the submissions of Defendants' Counsel, a formal Deed of Sublease is not necessary for the bindingness of the contract as it merely denotes the conveyancing stage - the second and concluding stage of the transaction which would trigger off the issue of "Transfer fees" as per Exhibit C3 Paragraph
2. He cited at page 14 of his Brief the case of BEST (NIG) LTD V BLACKWOOD HODGE (NIG) LTD (2001) 10 NWLR @ page 41 per Babalakin JSC where he held thus:

"in a sale of land there are two stages viz: (a) agreement to sell or buy, and (b) the, final stage of the sale culminating in deed of conveyance or allied instrument to transfer in interest bargain for. When parties go to court for specific performance they go after stage (a) above, the agreement of sale and this may be conditional agreement subject to consent of the governor being obtained as it is in this case".

In further response, Defendants' Counsel, Mr. Pedro, submitted as per their Reply Brief that the Court ought to discountenance ail submissions in respect of the evidence of CW1 as to alleged entry and improvements in the house as these were not particularized in the pleadings nor such specific claim for damages made in her pleadings. He relied on the cases of: OREDOYIN V. AROWOLO (1989) 4 NWLR (PT 114) 172 & AMODU V. AMODE (1990) 5 NWLR (PT. 150) 356.

Finally, he submitted that this is not a case where specific performance ought to be ordered as even if the Claimant is in possession which is not conceded, failure to pay the balance on the contract as demanded means there is no valid contract. In other words that a party must take both benefit and responsibility and that specific performance can only be granted to a party who has part-performed and is willing to further perform the outstanding terms of the agreement.

Having thoroughly considered the above-highlighted, and after a close and detailed perusal of the Claimant's pleadings, the first point to make as rightly observed is that there are indeed no specific claims or particulars of improvements or indeed specific claims for damages incurred for any improvements in the said disputed house in the Claimant's Amended Statement of Claim.

It is now trite that parties are bound by their pleadings. See on this the Supreme Court case of EJUETAMI V OLAIYA (supra) cited by Defendants' Counsel. As rightly submitted on this point, evidence in absence of any foundation of averments in pleadings go to no issue and must be discountenanced. See the following cases:

• CIVIL DESIGN CONSTRUCTION NIG. LTD V. SCOA NIG. LTD (2007) 2 S.C. 195
• OKOKO V. DAKOLO (2006) 7 S.C (PT III) 84
• WEST CONSTRUCTION CO. LTD V BATHALA (2006) 4 SC PART 1
• ADEMESO V OKORO (2005) 6 SC (PART 1) 51 esp. @ 58/9
• IHEANACHO V. CHIGERE (2004) 7 S.C. (PT II) 49

This evidence cannot be given any weight at all in that regard.


However, as to whether this evidence can be given probative value in respect of the
submissions on the Claimant's part-performance, this will be dealt with after this Court has determined the main issue of whether there is a binding & concluded contract between the parties herein.

On the main issue in dispute between the parties herein, the contention of the Defendants is that the contract is inchoate notwithstanding the payment of the selling price of N16 Million, as there are other terms outstanding for the allottee to fulfill (e.g. payments of other fees and charges anticipated but not yet fixed and communicated and the commencement date) before the contract becomes binding, hence the relevancy of the words and phrases "provisional offer" and "subject to contract".

The Claimant on the other hand contends that the contract was concluded and completed by the acceptance of the Claimant to pay the selling price and the payment of same. Thus, that those phrases are not relevant to the facts and circumstances of this case especially in the face of Exhibit C4 which is not so marked. It is her Counsel's further contention that the commencement date not stated in Exhibit C3 must be related to the date of handing over of possession as referred to consistently in the said Letter of Allocation - Exhibit C3.

From the above, it is clear that both Counsel are ad idem that for a binding Lease Agreement to exist, there must be certainty as to the length of the lease, rent and date of commencement must be clearly defined.
See the following cases: UBA V TEJUMOLA & SONS LTD (1988) 2 NWLR (PART 79) @ 662 esp. @ 678, (supra) /
• HARVEY V PRATT (1965) 1 WLR 1025 &
• MARSHALL V BERRIDGE 19 CH.D 233 @ 238-239 & 244-245d.

It is indeed the settled position of the Law that for a binding contract to exist, the elementary and well laid down principles of offer, acceptance, and consideration and of course intention to create a legal relationship must operate. See the Cases of:
• UBN LTD V SAX NIG. LTD (1994) 9 NWLR (PART 361) @ 150
• LAWAL V UBN PLC (1995) 2 NWLR (PART 378) @ 407. ,,