Amana Suits Hotels Ltd. V. Peoples Democratic Party (2006)
LawGlobal-Hub Lead Judgment Report
ABDU ABOKI, J.C.A.
This is an appeal against the judgment of the High Court of the F.C.T. Abuja sitting at Wuse Zone 5 presided over by Justice Hussein Mukhtar delivered on 11th day of February 2005 in Suit No. FCT/HC/CV/653/03.
The present Appellant, who was the plaintiff at the trial court, instituted the action against the respondent, who was the Defendant claiming.
“1. The sum of N1,831,500 being the total cost of 60 rooms reserved by the plaintiff for the Defendant for 4 nights at the request/instruction of the defendant.
- 10% interest on the judgment sum from the date of judgment till the sum is liquidated.”
The brief facts of this case are that the respondent by a letter dated 13/12/2002 (Exhibit 1) requested the Appellant to reserve all rooms in its Hotel from the 2nd to 6th January 2003. The letter also requested the Appellant to forward the available rooms and their cost implication.
The Appellant wrote to confirm the availability of sixty (60) rooms, their location and gave their cost estimate at N1,831,500. The Appellant requested that payment be made for the rooms immediately to enable it prepare for the respondents guests.
Two officials of the Respondent were said to have inspected the rooms on the 31st December 2002 and 1st January 2003. The Respondent did not send any of its guests to occupy the rooms from the 2nd to 6th January 2003.
The Appellant sent its bill for the nights that the rooms were reserved to the Respondents for payment, but the Respondent rejected the bill and refused to pay. The Respondent claimed that during the inspection of the room it found them unsuitable and that its decision to outrightly decline to take the rooms was expressed in the presence of the Appellant’s Sales Manager.
The Appellant on its part said that there was no official letter of cancellation of reservation or any official correspondence sent to it by the Respondent.
The Suit first came under the undefended list and due to the failure of the Defendant to file a notice of intention to defend it, supported by an affidavit, judgment was entered in favour of the plaintiff on 22/9/2003.
Upon an application filed by the Defendant which was argued by parties on 27/10/2003 praying the trial court to set aside the default judgment entered on 22/9/2003. The trial court delivered its ruling on 8/12/2003 setting aside the judgment and the suit was subsequently transferred to the general cause list and pleadings were filed and exchanged by the parties. At the hearing each party called only a witness and 4 Exhibits marked as A,1, 2 and 3 were tendered in evidence.
After hearing the case of both sides the trial court gave it Judgment on 18/2/2005 dismissing the claim of the Plaintiff/Appellant holding that there was never created a binding contractual relationship between the parties in the Suit.
Dissatisfied with the judgment of the trial court, the Appellant appealed to this court. The parties duly filed, served and exchanged their respective briefs of argument. The Appellant in its brief dated 14/11/2005 and filed the same day presented two issues for determination.
These issues arc as follows:
“1. Whether the learned judge properly interpreted Exhibits 1 and 2 and right to hold that there was never created a blinding contractual relationship between parties … even in the face of the uncontradicted evidence of the PW1.
- Whether the learned judge made a correct approach to the evidence led by both parties coming to a conclusion to dismiss the case of the Appellant.”
The respondents’ brief dated 21st March 2006 was deemed filed on 12/9/2006 after an application seeking for an order of extension of time to file the brief out of time was granted.
The respondent also presented two issues for determination:
“A. Whether from the Exhibit tendered before the lower court, there was an existing and binding contract between the parties.
B. Whether there was credible evidence from the appellant to establish its claim against the respondent.”
Learned Counsel for the Appellant submitted that a dispassionate interpretation of Exhibit 1 shows that it is a clear, unequivocal and in no uncertain terms a request for reservation of rooms, which request was asked by the respondent to be treated with utmost importance. He argued that that is an unqualified instruction and cannot be construed to be a mere inquiry for information on rooms as posited by the Respondents or an invitation to negotiate as held by the trial judge.
He submitted that Exhibit 1 was supposed to be acted upon and that this is supported by the evidence of the PW1 at page 24 of the record of proceedings.
Learned Counsel further argued that Exhibit 2 which conveyed to the Respondents that 60 rooms have been confirmed is a fulfillment of the requests in Exhibit 1.
Learned Counsel maintained that what a confirmed reservation means in hotel business was not challenged or contradicted by cross-examination and the failure is tacit acceptance of the truth of the evidence.
He referred the Court to Gaji v. Paye (2003) 30 WRN 146.
Learned Counsel submitted that the effect of Exhibit 1 constitutes a unilateral contract of a promise to do an act and the contract became binding and enforceable as soon as the act is done (the confirmation/reservation) even though there has not been a formal notice of acceptance from the other party… Learned Counsel cited the case of African Continental Bank v. Nnaji & Anr. (1962) 2 All NLR 130.
Learned Counsel submitted that the trial judge was wrong to have held as he did at page 50 of the record of proceedings that Exhibit 1 is an invitation to negotiate and that Exhibit 2 is an offer made by the Appellant to the Respondent.
Learned Counsel for the Respondents in reply submitted that no valid contract existed between the Appellant and the Respondent capable of being enforced. He argued that the Respondent’s Exhibit 1 to the Appellant is a mere inquiry for confirmation on rooms available and the cost implications.
Learned Counsel further submitted that the Appellant’s letter Exhibit 2 was a reply to the confirmation requested by the Respondent in Exhibit 1. He argued that the Appellant’s letter contained the terms and conditions the Appellant could contract with the Respondent. He maintained that these terms and conditions were not accepted by the Respondent as rightly found by the trial judge at page 50 of the record of Proceedings.
It is submitted on behalf of the Respondents that the finding and holding of the trial Judge was a true construction of the Exhibit to the effect that no valid contract existed between the parties because an acceptance of the terms of an offer must be absolute and unqualified and must show correspondence with all the stipulations presented in the offer. The court is referred to the cases of- Petroleum Training Institute v. Brown Uwamu (2001) FWLR Pt.70 Page 1567 at 1578; Okubule v. Oyagbola (1990) 4 NWLR Pt. 147 page 723 at 741 – 742.
On the Second issue formulated on behalf of the Appellant, Learned Counsel for the Appellant, submitted that Exhibit 1 is an unqualified instruction for rooms reservation intended to create a contract by the Plaintiff complying with its items and sending Exhibit 2 to the Respondents and that Exhibit 1 was intended to be acted upon, by the Appellant when it read in its second paragraph “Kindly treat this request with utmost importance.”
Learned Counsel contended that it was the evidence of the PW1 that the Appellants acted on the facts of Exhibit 1, being a confirmed reservation and the assurances of two agents of the Respondents. He referred the Court to Section 151 of the Evidence Act and the cases of Obayan v. Unilorin (2005)15 NWLR Pt. 947 page 123 at 146 – 147; Joe Iga & Ors. v. Ezekiel Amakiri & Ors. (1976) 11 SC 12 – 13.
Learned Counsel argued that paragraph 6 of the Statement of defence is at variance with the evidence led by the Defendant at the trial Court. The Court was referred to the Case of Adeleke v. Iyanda (2001) 28 WRN page 1 at 16.
It has been argued on behalf of the Appellant that the Court below failed to rightly interpret Exhibits 1 and 2 and failed to evaluate and consider the totality of the evidence placed before it.
Learned Counsel maintained that this Court has the power not only to properly evaluate the evidence but also enter judgment for the Appellant. Learned Counsel conceded that it is true that the court of Appeal is reluctant in interfering with findings of fact by a lower Court and that the Court of Appeal will do so if evaluation does not involve the credibility of the witnesses who gave evidence at the Court below.
Learned Counsel argued that in the instant case, what is at stake is the interpretation of the documents tendered in evidence and the inconsistency in the evidence of the defence witness with the pleadings of the defence and that it has nothing to do with credibility of the witnesses. The Court was referred to the case of State v. Ajie (2000) 3 NSCOR 53 at 55:
Section 16 of the Court of Appeal Act; and Order 1 Rule 20 of the Court of Appeal Rules.
Learned Counsel urged the Court to evaluate the evidence and enter proper judgment flowing from the evidence.
The Respondent in its brief maintained that the Appellant’s witness had nothing to do with the transaction between the parties.
It is submitted that the evidence of PW1 is worthless and not credible to sustain any claim against the Respondent. The Court was referred to the case of Neka B.B.B. Manufacturing Co. v LFDVACB Ltd. (2004) 2 NWLR Pt.858 page 521 at 549.
It has been submitted on behalf of the Respondent that no probative value could be attached to the testimony of PW1 as he had no nexus with the Exhibits tendered in Court nor authorized them.
The Court was referred to the case of Flash Odds Ltd. v. Akamgba (2001) FWLR Pt. 76 page 709 at 730.
It is further submitted that the Appellant succeeds on the strength of its case and where no credible evidence is led, as in this case, the Appellant’s case ought to fail. Learned Counsel finally submitted that the evidence led by the Respondent on the inspection of the Appellant’s rooms leaves no iota of doubt ns to the position of the Respondent on the Appellants’ offer.
Learned Counsel maintained that the Sales Manager of the Appellant, Musa Abdultalib who dealt with the Respondent’s representatives was not called as a witness, as his evidence would have been unfavourable to the Appellant.
At the hearing of the appeal. Learned Counsel to the parties adopted their individual briefs of argument. While Learned Counsel for the Appellant urged the Court to allow the appeal, Learned Counsel for the Respondent urged that the appeal be dismissed.
I have earlier in this Judgment mentioned the pairs of issues identified and presented by the parties for determination in this appeal.
The two sets of issues identified by the parties in their respective brief of argument, have been diligently examined, and I have found them to be very similar in concept and can be conveniently condensed into a single issue as they relate to the question whether from the contents of Exhibits 1 and 2 a binding contractual relationship has been created between the parties.
It is permissible for an appellate court to either adopt the issue(s) formulated by the parties for determination or it can restructure or formulate such new issues which are consistent with the grounds of appeal and which in its opinion would determine the real question(s) in an appeal. See- Labiyi v. Anretiola (1992) 8 NWLR Pt. 258 page 139 at 159; Aduku v. Adejoh (1994) 5 NWLR Pt. 346 page 582; Dung v. Gyang (1994) 8 NWLR pt. 362 page 315; Ikegwuoha v. Obawuchi (1996) 3 NWLR Pt. 435 page 146; Onwo v. Oko (1996) 6 NWLR Pt.546 page 584.
I have therefore adopted issue A formulated by the Respondent as it is more comprehensive for the determination of this Appeal. It reads:
“Whether from the Exhibits tendered before the lower court, there was an existing and binding contract between the parties.”
In order to appreciate the issue in controversy in this appeal, it is pertinent for me to examine what the learned trial Judge said on these Exhibits. The Learned trial Judge held on page 50 of the Record of proceedings as follows”
“Looking at the transaction between the parties, the first letter, Exhibit ‘1’ written by the defendant to the plaintiff is clearly an invitation to negotiate as it does not fine the terms and conditions of a proposed agreement to qualify as an offer. However, the letter written in reply by the plaintiff to the defendant, exhibit “2” which stated the number of rooms being 60 and their categories and rates and the total cost for all the rooms and the period for the reservation was a very clear offer made to the defendant by the plaintiff. The question is which such offer was accepted unconditionally by the defendant to create a binding agreement?”
Exhibit 1, 2, 3 and A are the contract documents consisting of what the parties perceived to be the letters of offer and acceptance and they are hereunder reproduced:
Exhibit 1 reads as follows:
“13 December 2002
The reservation manger
Amana Suites Hotels Ltd
Abuja
RESERVATION OF ROOMS FROM THE 2ND TO THE 6TH OF JANUARY, 2003
I write on behalf of the national Working Committee of the peoples Democratic party to request you to reserve all the rooms in your prestigious hotel for use by guests of the party from the 2nd to 6th January, 2003.
Kindly treat this request with utmost importance.
It would be appreciated if you forward to the undersigned the rooms available and the cost implications.
(Signed)
DR. ROLAND ORITSEJAFOR
Deputy national Secretary.”
It is apparent on Exhibit 1 that it is a request to the Appellant from the Respondent seeking for room reservation as well as further information about the rooms the Appellant has available and their cost implication. The letter was written by the Deputy National Secretary of the Respondent on behalf of another organ of the Respondent, its National Working Committee.
It is very clear from the content of Exhibit 1 that it is not a definite offer, since it is subject to further negotiation.
The next document is Exhibit 2 a letter from the Appellant to the Respondent and it reads:
“20th December, 2002
The Deputy National Secretary
Peoples Democratic party (PDP)
National Secretariat
Abuja
Dear Sir,
RE: HOTEL RESERVATION 2ND – 6TH JAN, 2003
Sequel to your kind letter requesting for rooms reservation, we write to inform you that Sixty (60) rooms have been confirmed for your organization in our hotel annex situate in Wuse axis. See enclosed our cost estimate for the rooms. Please, note that we would be most grateful if payment is made for the reserved rooms immediately to enable us prepare for your guest.
Compliment of the season.
Sincerely yours,
(Signed)
MUSA ABDUTALIB
SALE MANAGER”
INVOICE
COST ESTIMATE FOR RESERVATION:
ROOM TYPE NO. AVAILABLE RATE AMOUNT
N N
Presidential (Royal Deluxe) 15 9.500 142,500
Deluxe Room 15 8, 500 127, 500
Executive Room 15 7, 500 112, 500
Exclusive room 15 5,025 75,375
457,875
TOTAL COST PER NIGHT N457,875 =
TOTAL COST FOR FOUR NIGHTS 1,831, 500 =
GRAND TOTAL FOR THE SIXTY (60) ROOMS N1,831, 500.00″
it is apparent from the face of Exhibit 2 that it was the semblance of all offer to the Respondent. It gave the number of rooms available, their location, and rate per night. Exhibit 2 contains a condition that payment be made immediately so as to enable the Appellant prepare the rooms for the Respondent’s guests. The letter was personally signed by the Sales Manager of the Appellant. I am in no doubt that Exhibit 2 qualifies as an offer made to the Respondent.
Exhibit 3 is a letter of complaint by the Appellant to the Chairman of the Respondent expressing the displeasure of the Appellant in the Respondent not paying for the rooms reserved for it.
The Appellant put up a proposal for an amicable settlement of its hotel bills for three (3) nights instead of the four (4)nights the rooms were said to have been reserved for the Respondent. The Appellant wanted the Chairman or the Respondent to intervene so that payment could be made to it.
I consider the contents of Exhibit 3 to he of significance to the issue for determination and it is hereunder adumbrated thus:
“AMANA SUITES ABUJA
Executive Office 20/1/2003
The Chairman
Peoples Democratic Party (PDP)
National Secretariat, Wadata Plaza
Wuse Zone 5
Abuja
Sir,
HOTEL RESERVATION AND PAYMENT DEFAULT
As the subject refers.
We wish to bring to your notice the default in payment for the sixty (60) rooms reserved for your convention’s delegates from 2nd to 6th January 2003 (for 4 nights) as instructed by your party’s national Working Committee (Accommodation/Protocol) headed by Senator Tafida B. Yauri.
Sir, due to the high regard we have for your party and after careful analysis of the situation, management decided to put forward a proposal for an amicable settlement of our hotel bills for the three (3) nights that our rooms were duly reserved. Please see photocopies of the reservation request and our confirmation of the rooms for reference.
Please confer with the secretary of the NWC on accommodation. Mr. Vincent Aadonka who inspected our hotel rooms along with the Chairman, Senator Tafida B. Yauri on the 31st December 2002 and 1st January 2003 with further assurances that the rooms should not be sold out because full payment for the rooms in cash would be made on the 2nd January 2003 since other hotels have received their cheques (payment for rooms reserved). By this we were even more committed and refused to sell our rooms to customers and this situation went on till 3rd January, by 12.00 noon when the secretary, Mr. Vincent Aadonka still assured us that our money had been approved by the Chairman and the rooms should still be kept vacant.
To this end, later that evening of 3rd January, a staff of the secretariat came to the hotel and wondered why guests have not started arriving and was surprised that we have not been paid a Kobo and assured us that we would be paid fully.
Sir, we crave your indulgence to please take a serious look into this issue and use your good office to proffer payment. Please see cost implication below for the 3 night that we are charging because the rooms were duly reserved according to your party’s instruction for four night because up till this moment no official letter of cancellation of reservation or any official correspondence has been sent to us.
ROOM TYPE NO. AVAILABLE RATE AMOUNT
N N
Presidential (Royal Deluxe)15 9.500 142,500
Deluxe Room 15 8, 500 127, 500
Executive Room 15 7, 500 112, 500
Exclusive room 15 5,025 75,375.00
457,875
TOTAL NO. OF ROOMS = 60
TOTAL COST PER NIGHT – N457,875.00
TOTAL COST FOR THREE NIGHTS- N457,875.00 x3 = N1,373,625.00
Thanking you for the pains taken to go through this document as we await your kind response.
Your faithfully,
(sgd)
SUNDAY AYAMI
Head of operations
Cc: national Secretary
Deputy national Secretary”
Exhibit A is a reply to Exhibit 3 from the Respondent to the Appellant, denying liability for the sum claimed by the Appellant.
The contents of Exhibit A are of importance to the issue for determination in this case and is hereunder reproduced:
“PEOPLES DEMOCRATIC PARTY (PDP)
May 21, 2003
The Head of Operations
Amama Suites
Abuja
Atten: Sunday Ayami
Sir,
RE: HOTEL RESERVATION AND PAYMENT DEFAULT
We regret to convey to you that as far as the content of the letter under reference is concerned we are not in any way liable to your hotel for the sum claimed or for any sum of money on the following grounds.
a. That though the party requested through our Deputy National Secretary that you furnish us with the nos. of available rooms and the cost implication, it does not on itself translate into a building contract.
b. It is in hotel business the world over that a request to reserve a room without cash deposit is merely a half-hearted expression of desire to take room and in the event the hotel assigns the room to another guest it cannot be held liable and vice versa.
c. It is the duty of any business concern to mitigate any potential loss that any may likely arise in the course of her operation, if in the circumstance you failed to mitigate your loss under the mistaken illusion that our Party had reserved rooms (without any deposit payment made) the loss must as a matter of course rest squarely with you.
May I use this opportunity to strongly deny that I at no time whether on the 1st of January or 3rd January, 2003 gave further assurances that the rooms should not be sold out to any person(s) as that is only a figment of the imagination of whoever authorized it.
Finally, we once again reiterate that the peoples Democratic Party is not in any way liable to your hotel in respect of your letter under reference.
Thanks.
(Sgd)
Hon. Vincent Aondoakaa (JP)
For: Chairman, Accommodation Sub-Committee”
It is trite law that a contract is a legally binding agreement between two or more persons by which rights are acquired by one party in return for acts or forbearances on the part of the other See: Orient bank (Nig) PLC v. Bilante International Ltd. (1997) 8 NWLR Pt. 515 page 37 at 41;
Societe Generale Bank (Nig) Ltd. v. Safa Steel and Chemical manufacturing Ltd. (1998) 5 NWLR Pt. 548 page 168.
The elements of a valid Contract are five and theses are Offer, Acceptance, Consideration, Intention to create legal relationship, and Capacity to contract. See:
Petroleum Training Institute v. Brown Uwamu (2001) FWLR Pt.70 page 1567 at 1578; Obaike v. B.C.C. PLC. (1997) 10 NWLR Pt. 525 page 435; Orient bank (Nig) PLC. v. Bilante International Ltd. (1997) 8 NWLR Pt. 515 page 37; Okubule v. Oyagbola (1990) 4 NWLR Pt. 147 page 723.
All the five ingredients must be present before a valid contract can exist in Law. A contract can not be formed if any of the ingredients is absent.This appeal concerns the presence of offer and acceptance in the purported agreement between the parties.
I will therefore confine myself to these two ingredients in looking into whether there is a valid contractual agreement between the parties before they went to court.
There is no dispute raised concerning the other three ingredients.
An offer is a definite indication by one person to another that he is willing to conclude a contract on the terms proposed, which when accepted, will create a binding legal obligation. The offer may be verbal, written or even implied from the conduct of the offeror.
The offeree has the option of acceptance or outright rejection of the offer. See:
Majekodunmi v. National Bank of Nigeria (1978) 3 SC 119 at 129; Union Bank v. Ozigi (1991) 2 NWLR Pt.176 page 677 at 679; Orient bank (Nig) PLC. v. Bilante International Ltd. (1997) 8 NWLR Pt. 515 page 37 at 76; Obaike v. B.C.C. PLC. (1997) 10 NWLR Pt. 525 page 435 at 437. The offeror must communicate his offer to the offeree so that he has an opportunity to accept or reject it. The offeree cannot be contractually bound to pay for services rendered to him without his consent or knowledge.
In Union Bank of Nigeria Ltd. v. Sax Nigeria Ltd. & Ors. (1994) 8 NWLR Pt. 361 page 150 at 168 Iguh J.S.C said:
“An offer capable of being converted into an agreement by acceptance, must consist of a definite promise to be bound provided that certain Specific terms are accepted by finally declaring his own readiness to undertake an obligation upon certain conditions, leaving to the offeree the option of acceptance or refusal.”
An offer must be distinguished from an invitation to treat. For an offer to be capable of becoming binding on acceptance it must be definitely clear and final. If it is merely a preliminary move in negotiations which may lead or may not lead to a definite offer being made by one of the parties to the negotiation, then it is not an offer but an invitation to treat.
An invitation to treat is not capable of an acceptance which will result in a contract. See Carlill v. Carbolic Smoke Ball Co. (1893) 1 Q.B. 256. Obaike v. BCC PLC (1997) 10 NWLR Pt. page 435 at 437.
Acceptance is ineffective unless there is complete agreement on all material terms. See: Seammell Ltd v. Ouston (1914) 1 All ER 14.
The general rule is that an acceptance must be communicated to the offeror. The acceptance is validly communicated when it is actually brought to the attention of the offeror. See Okubule v. Oyagbola (1990) 4 NWLR Pt. 147 Page 732.
A comprehensive definition of what constitutes the acceptance of an offer was given in Orient bank (Nig) PLC. v. Bilante International (supra) at Page 77 Per Niki Tobi JCA.
“An acceptance of all offer is the reciprocal act or action of the offeree to the offeror in which he indicates his agreement to the terms of the offer as conveyed to him by the offeror. Putting it in another language acceptance is the act of compliance on the part of the offeree with the terms of an offer. It is the element of acceptance, that underscores the bilateral nature of a contract.
An acceptance of an offer may be demonstrated
(1) by conduct of parties or,
(b) by their words or,
(c) by documents that have passed between them. See: Majekodunmi v. National Bank of Nigeria (1978) 3 SC 119; Chamboury v. Adebayo (1972) NCLR 384; Union Bank of Nigeria Ltd v. Professor Ozigi (1991) 2 NWLR Pt.176 Page 677”
An offer may be revoked at any time before acceptance.
When revocation of an offer is made before acceptance there is no liability on the part of the offeror notwithstanding that he promised to keep the offer open for a specific period of time but revoked it before the expiration of that period of time. This is because such a promise, not being supported by any consideration from the offeree, is not binding on the offeror.
However the offeror’s decision to revoke is ineffective until it has been communicated to the offeree. It is not necessary that the offeror himself should make the communication, what is important is that the offeree is made aware of the revocation from a reliable source.
When an offeree expressly rejects an offer made to him it becomes effective when notice or rejection actually reaches the offeror. An offer is impliedly rejected if the offeree instead of accepting the original offer makes a counter offer which varies the term proposed by the offeror. See Major-General George Innih (rtd.) & Ors. v. Ferado Agro and Consortium Ltd. (1990) 5 NWLR Pt. 152 page 604.
An offer lapses if it is not accepted within the period stipulated by the offeror.
It is clear from the record of proceedings of the trial Court as well as the briefs of argument by the parties that the documents considered are Exhibits 1,2,3 and A.
Having regards to the exhibits quoted above, the natural question to ask is, which of these documents qualifies as a letter of offer or acceptance?
I have held earlier that Exhibit 1 is a request letter from the Respondent to the Appellant seeking to know the number of rooms available in the Appellant’s Hotel as well as their cost implication.
I have again held that Exhibit 1 has not qualified either as an offer or an acceptance but an invitation to treat or negotiate. An invitation to treat in law is not an offer capable of acceptance, which will result in a contract with a legal relationship between the parties. Exhibit 2 in my view has all the features of an offer. I agree with the finding of the trial Court at page 50 of Record of proceedings where he said:
“Looking at the transaction between the parties, the first letter, Exhibit ‘1” written by the defendant to the plaintiff is clearly an invitation to negotiate as it does not define the terms and conditions of a proposed agreement to qualify as an offer.
However, the letter written in reply by the plaintiff to the defendant, Exhibit “2” which stated the number of rooms being 60 and their categories and rates and the total cost for all the Room and the period for the reservation was a very clear offer made to the defendant by the plaintiff. The question is which such offer was accepted unconditionally by the defendant to create a binding agreement?”
It is my task in this appeal to find out whether this question posed by the trial Judge has been answered correctly based on the evidence placed before the trial court.
Exhibit 3 in my opinion is neither a letter of offer nor of an acceptance, rather it is a complaint against the Respondent sent to its Chairman. The complaint of the Appellant is on the non fulfillment of the Respondent’s side of the contract. The Appellant said it has executed its part by its reservation of 60 rooms for the guests of the Respondent from 2nd – 6th January 2003 but that the Respondent has refused to provide consideration.
Exhibit A is a reply from the Respondent to the claim of the Appellant, denying liability, and insisting that it never accepted the offer from the Appellant and that its officials who visited the Hotel rooms offered by the Appellant out rightly rejected them; because the rooms did not meet their taste.
On the crucial question whether there was an acceptance by the Respondent of the offer made by the Appellant, the trial Judge made the following findings of fact:
“There were visit, by the DW1 and others to the plaintiff’s hotel during which, according to the PW1, the defendant’s officers insisted that the rooms be reserved while the DW1 who was in the team that visited the plaintiff’s hotel said they out rightly rejected the rooms. Be it as it may, there appears to be no clear and unconditional acceptance of the offer made by the plaintiff of 60 rooms at a cost of N1,831,500.0 for four nights from 2nd to 6th January, 2003, the mere visit and oral request for reservation of the rooms or rejection as the case may be falls short of qualifying into a clear and unambiguous acceptance and I hereby so hold. That being so, there was never created a binding contractual relationship between the parties in this case.”
It is trite law that an appellate Court will not ordinarily disturb the findings of fact made by a trial Court, which has had the opportunity seeing the witnesses and watching their demeanor except in circumstances, such as where it is satisfied that the trial court has not made any use of that advantage or the findings are perverse or are not supported by evidence or where the trial Court has drawn wrong conclusions or has taken erroneous view of the evidence adduced as a result of its wrong application of some principles of substantive law or procedure. See: Folorunsho v. Adeyemi (1975) NMLR 128; Balogun v. Agboola (1974) 10 S.C. 111; Lucy Onowan & Anor J.J.I Iserhien (1976) NMLR 263 at 265; Ifeanyichukwu Osundu C. Ltd. v. Akhigbe (1999) 11 NWLR Pt.625 page 1 at 18; Olorunfemi v. Asho (1999) 1 NWLR Pt. 585 page 1 at 9; Wulgo v. Bukar & 3 Ors. (1999) 3 NWLR Pt. 596 page 539 – 543.
I see no justifiable reason why these findings of fact by the trial court should be disturbed. I also hold that there was never a binding contractual relationship created between the parties in this also. It has been submitted on behalf of the Appellant that the effect of Exhibit 1 constitute a Unilateral Contract of a promise to do an act and that the contract became binding and enforceable as soon as the act was done (the confirmation/reservation) even though there has not been a formal notice of acceptance from the other party.
It is pertinent at this point to state what a unilateral contract entails in contrast to a Bilateral Contract.
In a unilateral contract consideration which is an integral part of any binding contract consists of actual performance in return for a promise (reward). The performance is referred to as executed consideration. See Carlill v. Carbolic Smoke Ball Co. (1893) 1 Q.B. 256.
Unilateral contracts are better-illustrated by the reward cases.
These are cases in which the offeror or promisor offers a reward for information leading to recovery of a lost object, or arrest and conviction of criminals.
In such situations, the offeree “accepts” the offer by actually providing the information or locating the missing object and reuniting it with the offeror. The act of finding or giving the relevant information constitutes the consideration furnished by the offeree.
Only one party, the offeror or promisor, is under a contractual obligation at any relevant period in a unilateral contract.
Another source of unilateral contract is the sales promotion offers whereby consumers are promised prizes by manufacturers of sparkling drinks, if they could produce a bottle cap containing a particular symbol, or a series of bottle caps which can together form a particular word.
The promotional advertisement constitutes an offer to the whole world which matures into a contract when any consumer fulfils the terms of the offer by producing the requisite cap or caps. By contrast a bilateral contract consists of the offeror promising to do something in exchange for the offeree promising to do something else in return. The consideration (the mutual promises) is referred to as Executory consideration.
In this Appeal I have earlier said that the document received in evidence at the lower Court and marked as Exhibit 2 represents the offer and that Exhibit 1 was an invitation to treat and not an offer. It is clear from the nature of the content of Exhibit 2, that the Appellant intended the offer if accepted to result in a bilateral contract.
The Appellant has promised to provide hotel rooms to the guests of the Respondent and if the terms of the offer are acceptable to the Respondent it is to furnish consideration by the payment of the room rates for the nights contracted.
In this situation consideration should follow the acceptance of the offer and where the Respondent declines to accept the offer, it will not be expected to provide consideration for an offer it rejected.
It is therefore not correct when counsel to the Appellant said that the contract became binding and enforceable as soon as the confirmation/reservation of the rooms was done, even though there has not been a formal notice of acceptance from the Respondent.
The only issue in this appeal is therefore resolved in favour of the Respondent against the Appellants. I find no merit in this appeal and it is hereby dismissed. I affirm the decision of the Court below.
I award N5,000 cost to the Respondent.
Other Citations: (2006)LCN/2095(CA)
