Tonye Da-tubonimi V. The Military Government Of Rivers State & Ors (2009)
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SULEIMAN GALADIMA, J.C.A.
This is an appeal by the plaintiff against the decision of Hon. Justice W.D. Dappa of the Rivers State High Court sitting at Port Harcourt in Suit No. PHC/249/79. In the judgment which was delivered on 8th October, 1986, the learned trial judge dismissed the plaintiff’s case and awarded costs of N100.00 (One Hundred Naira only) to first to fourth defendants.
Dissatisfied with the judgment of the court below, the plaintiff hereinafter referred to as “the Appellant” filed his Notice of Appeal originally containing FIVE GROUNDS but later amended to FOUR GROUNDS.
I must confess, the case has a chequered history. It is old. It has suffered long existence in the Enugu Division of this court before it was finally transferred to this Division when it was established in 1989. Hence, it carried the Appeal No. “CA/E/278/99”. The original Appellant “Mansseh Addey Williams” suffered a devastating stroke and he died on 21/2/2000. Thereafter “Tonye Da-Tubonimi” brought an application to substitute the deceased, his uncle, on 5/12/2001 which this court granted’ on 20/2/2001. The action was instituted during the Military era; hence it was the “Military Governor” the Chief Executive” of Rivers State then that appeared readily as the 1st Defendant hereinafter “the 1st Respondents”. Other parties and their offices remain intact, structurally and in their status and responsibilities. Records of appeal were settled and transmitted to this court on 4/10/88. Again due to what I will describe as lackadaisical attitude of the Appellant or his counsel to this appeal, the brief of argument of the appellant filed in 1994 was amended thrice between 1994 and 2003. The 5th Respondent followed suit.
They equally amended their brief on 28/9/95. Although the 1st – 4th Respondents also filed a motion on 29th May 1990 to file their Brief of argument out of time and to deem the attached Brief as properly filed and served, there is nothing in the record showing that the motion has been heard and granted. The above situation gave rise to the adjournment of the Appeal on 5th and 8th of March, 2004, coupled with the fact that there was no legal representation of the 1st – 4th Respondents despite Hearing Notice was ordered by this court.
On 15th and 18th March, 2004 the Appeal was fixed for hearing. Both counsel for Appellant and 5th Respondent were in court. It was in view of the circumstance of this that the Appellant made in application for the appeal to be heard on the Appellants and 5th Respondent’s briefs of argument. This was granted on 19/3/2007.
On 20/5/2009, this appeal was heard. Learned counsel for the Appellant FAYE DIKIO, Esq. identified Appellants. Further Amended Brief of argument dated 31/3/2003, filed on 9/4/2003. Four issues raised from the amended Notice of Appeal containing four grounds without their particulars read as follows:
ISSUE NO. 1
“Was it right for the learned trial Judge to hold that the acceptance of the offer by the plaintiff Appellant constituted a counter-offer without considering when the letter of offer was received and without properly construing the whole of the letter of offer?
ISSUE NO. 2
Was the learned trial Judge right to base his decision on factual contention in the 5th Defendant’s pleadings not proved in evidence?
ISSUE NO. 3
Whether it was a right decision for the learned trial Judge to hold that the plaintiff failed to establish the case against the Defendants, who did not offer contrary evidence.
ISSUE NO. 4
Whether it was not fraudulent for the 5th Defendant to acquire the property with document and information given to it (through its Area Manager) by the Plaintiff and if fraudulent whether the sale to it was valid in law”.
The 1st and 4th Respondents did not deem it necessary to file any brief of argument. The 5th Respondent’s amended brief of argument was deemed filed on 28/9/95.
As I have noticed the Appellant amended their brief twice.
It would appear to me that 5th Respondent did respond to the Appellant’s (second) Further Amended Brief in which 4 issues were raised. The 5th Respondent responded to the issues the appellant raised. In the light of the foregoing, it is the Appellant’s and 5th Respondents Briefs that will be considered in this appeal and the issues raised therein.
However, my careful study of the Appellant’s brief shows that it was inelegantly drafted. A long line of judicial decisions and pronouncements of the apex court and this court enjoin counsel to prepare a brief of argument in such a way that the issues so formulated relate to the grounds. The brief is expected to be presented and argued in accordance with the issues formulated. See ONIAH v. ONYIA (1989) 1 NWLR (Pt.99) 514. The Appellant’s brief is not impressive. It is not generally satisfactory.
However, since the introduction of brief writing in the apex court and this court, it has been the principle and practice of these courts that inelegance in brief of argument should not defeat the merit of a case. As much as possible the brief should be salvaged unless it is legally impossible to do so.See NDUKWE v. STATE 37 NSCQR. 425 at 484; AMGBARE v. SYLVA (2009) 1 NWLR (Pt.1121) p.1 at p.53; LAWAL v. SALAMI (2002) 2 NWLR (Pt.752) 687; LAWAL v. OKE (2001) 7 NWLR (Pt.711) 88 and It is for the foregoing reasons I shall still consider the Appellant’s brief. However, without proliferation of the Issues, I am of the firm view that the only issue that calls for the determination of this appeal can be set out thus: “Whether having regards to the pleadings, the evidence led, the applicable law the court below was right or wrong in dismissing the Appellant’s claim.”
Briefly, facts that gave rise to the instant appeal are as follows: The Appellant sought for a declaration that he is entitled to a lease of Plot C in Block 176 (otherwise known as No. 5 Hospital Road) Port Harcourt; cancellation of the lease; that the lease in respect of the property be granted to him; and injunction restraining the Respondents from doing any act in any manner, inconsistent with the Appellant’s right to the lease. It is his case that he got an offer to purchase the property from the Abandoned Property Implementation Committee hereinafter referred to as the “APIC.” The letter of offer sent to him dated 22/8/1977, was according to him received the second week of September 1977. The said letter which was admitted as Exhibit ‘A’ in the proceedings enjoins the Appellant to pay the sum of N50,000 being the cost of the property and another sum of N705.000 valuation fee on or before 8/9/1977, or else he should regard the property as forfeited and the property would be allocated to another person. On 13/10/1977, without seeking for an extension of time within which to pay, the Appellant made 10% payment of the amount stipulated in the letter of offer. He also made a further payment of N13,100.00 leaving the balance of N50,000.00.
Since the Appellant could not comply with the terms of the offer, the APIC offered the property to the 5th Defendant/Respondent vide a letter of offer dated 6/12/1977 5th Respondent paid immediately the sum of N70,500 cost of the property together with N705 valuation fee. Eventually the property was sold to the 5th Respondent who was issued with a Deed of Leasehold. The Appellant was not satisfied mainly for two reasons:
(1) That since he is an indigene of Rivers State, he should have been the purchaser according to an alleged policy of the Federal Government.
(2) That when he received the offer and was looking for tenants, his agent approached an official of the 5th Respondent for assistance and that the 5th Respondent might have utilized the information to effect the purchase of the property.
The Appellant called 3 witnesses. The 1st to 4th Respondents rested their case on that of the appellant; while the 5th Respondent called one witness. At the end of the trial the Appellant’s claim was dismissed in its entirety hence this appeal.
The Appellants’ main contention in this appeal as can be gathered from all the first three issues he formulated has to do with the basic legal principles of offer and acceptance in law of contract. The contentions can be summed up as follows:
(1) That in order to determine whether the offer expired on 13/9/1977, as contained in the letter of offer, consideration ought to be given to when the offer was received.
(2) That the 5th Respondent’s plea that the Appellant’s payment of a part of the required money, especially after offer had lapsed, amounted to a counter offer, was supported by evidence.
(3) That where the Appellant chose to make arrangement for Bank loan to meet up the payment, the short period given by the offer or (APIC) was unreasonable.
To resolve the foregoing questions resort can be had to Exhibit ‘A’ the letter of offer. It is stated in paragraph 4 of the said Exhibit thus:
“You are to please note that where you fail to complete this payment-before or on 8th September, 1977, you will forfeit the property and it will be allocated to another person”
This is the only document or condition to be carefully analyzed 5th Respondent has submitted that notwithstanding the time the Appellant received the offer, the offer expired on 8/9/1977 even if the Appellant paid in full after that date, he could not be said to have accepted the offer that had lapsed. I agree with the learned counsel for the 5th Respondent. They have submitted rightly. In paragraph 8 of their statement of defence, the 5th Respondent’s statement of Defence to the effect that payment after the offer had lapsed was a counter-offer.
This is tenable in law. Assuming that it was a statement of fact (which I do not concede) the fact that the Appellant made his payment after the offer had lapsed, to my mind, is an admitted fact by the Appellant and supported by his Exhibits ‘B’, ‘B1’ and ‘F-F1’ which are the letters of offer and the Tellers of the Central Bank through which the money was paid. I agree with the learned counsel for the 5th Respondent in his contention in the brief to the effect that the complaint of the Appellant that the time given for the payment was “unreasonable” in the event of him having to arrange for a Bank loan is to loose sight of the fact that the APIC which gave “unreasonable length of time was not a party to the case. Such an argument could be squarely placed before the said APIC to demand for extension of time. I do not agree that this is a valid ground for setting aside the 5th Respondent’s lease. For an offer to be legally accepted, the acceptance must correspond with the terms of the offer. If the purported acceptance tends to go contrary to the terms of the offer, it may amount to a counter – offer and not acceptance of the original offer.
The offer lapsed a day after 8/9/1977 and no act of the Appellant would be said to revive it. The small additional payment later made by the Appellant amounted to a counter-offer which destroyed the original offer made to him. See Cheshire and Fifoot on Law of Contract (9th edition p.33) and the case of HYDE v. WRENCH 49 E.K. p.132 at p. 133. See also JONES v. DANIEL (1894) CH.D. 332.
The Appellant stated that APIC did nor withdraw his offer. In other words, that the offer was still subsisting until he paid the cost of the property. I do not agree or think so, having regard to the clear words of paragraph 4 of the letter of offer Exhibit ‘A’ (reproduced above) which are that if the Appellant failed to “complete the payment before or on the 8th of September 1977″ he would forfeit the property and it would be allocated to another person.”
In contract if time is of essence, time limit within which the offer is to be accepted must be complied with. In other words if the offer or prescribes how and by what time the acceptance of his offer is to be communicated, compliance, with that time is material. Any material departure from the terms of the original offer invalidates the offer unless the same be agreed to by the offeror: See KENNEDY v. THOMASSEN (1927) 1 CH.D.426.
Another important aspect of this appeal that I shall consider is the issue of whether the learned triad Judge did properly evaluate the evidence of the parties in accordance with the principles enunciated in the case of MOGAJI & ORS v. ODOFIN (1978) 4 SC 91. The Appellant had alleged that the 5th Respondent obtained the lease by fraud because the Area Manager of 5th Respondent must have used Exhibit ‘A’ and the sketch of the property supplied to him to secure the lease for the 5th Respondent. It is contended that the Appellant gave sufficient particulars of the fraud at paragraph 20 of his statement of claim and gave abundant evidence of the same. Also that the learned trial judge did not consider the effect of the failure of the 5th Respondent to produce the letter or application for the lease of the property. That the learned trial Judge did not state why he was inclined to believe that 5th Respondent did not use Exhibit ‘A’.
What is the evidence and the finding of the court below concerning the alleged fraud? Appellant in his evidence at page 71 of the record testified to the effect that after he made some payment in respect of the property between 13/10/77 and 15/2/78, he in company of PW2 contacted the 5th Respondent through its manager Mr. Ramchandani as a possible tenant. That they left a photocopy of Exhibit ‘A’ and a sketch of the property with the said Manager of 5th Respondent. Dw2 testified at pp 91-92 of the record that himself and one Mr. Elenwo, the 5th Respondent Branch Manager handled the transactions connected with the sale of the property. He testified that they did not come across Exhibit ‘A’, ‘B’ and B1 during the negotiation. That Mr. Ramchandani did not give him (DW2) any photograph of the property. Under cross examination, this witness testified that Mr. Ramchandani did not give him any information concerning the property. He said he knew nothing about the Appellant’s interest in, the property during the negotiation. He told the court below that Mr. Ramchandani an Indian National, had resigned since 1979 and had left for India. After a detailed review and consideration of the evidence, learned trial.”
Judge held at page 147 of Record as follows.
“The 5th defendants were not agents of the plaintiff in his (plaintiff s) dealing with the A.P.I.C. in relation to the property and, in my opinion, were not in any fiduciary relationship to him.
The plaintiff said in his evidence that when he received the letter, Exhibit ‘L’ from the Chief Lands Officer, he felt that the 5th defendants had made a deal behind his back by using the documents he supplied to them in relation to the property. According to him the documents were a photo copy of Exhibit ‘A’ and a rough sketch of the Property”.
In summarizing the facts before him the learned trial judge found that he did not think that the 5th Respondent used the copy of Exhibit ‘A’, or the rough sketch of the property or both to acquire the property’ He found that the offer had lapsed by October 1977 when the Appellant in search of a tenant to whom he would let part of the said property, which he had not acquired and which was not his to let, handed the said documents to the Area Manager of the 5th Respondent. Learned trial Judge finally concluded thus:”
“In my view, the use of the said documents after the offer to the plaintiff had lapsed would not constitute fraud on their part, since it did not injure or prejudice the plaintiff in any way. Besides the 5th defendants.
Area Manager did not make any representation to the plaintiff which led to the lapse of the offer made to the plaintiff by the A.P.I.C”.
From the foregoing it is clear that from the evidence before the court below there was nothing to show that Exhibit ‘A’ or a rough sketch of the property was used by the 5th Respondent to acquire the property. Mr. Ramchandani to whom Exhibit ‘A’ and the sketch was allegedly given did not take part in the negotiation on behalf of the 5th Respondent. The learned trial Judge rightly observed that the offer to sell the property had lapsed since 8/9/1977 several months before Exhibit ‘A’ was allegedly given to Mr. Ramchandani. Contrary to the contention of the Appellant, the learned trial Judge adequately considered and evaluated the evidence relating to the alleged fraud and he rightly dismissed this allegation.
In the final result, I do not find merit in the appeal for the foregoing reasons, and I dismiss it. Accordingly the decision of the High Court of Rivers State sitting in Port-Harcourt delivered on 8/10/1986 in Suit No. PHC/249/79 is hereby affirmed.
I have carefully considered the circumstances of this case and shall not award costs.
Parties to the appeal shall bear their respective costs.
Other Citations: (2009)LCN/3518(CA)
