Niger Classic Investment Limited V. Uacn Property Development Company Plc & Anor (2016)

LawGlobal-Hub Lead Judgment Report

YARGATA BYENCHIT NIMPAR, J.C.A. 

The Appellant initiated an action by way of Originating Summons against the Respondents at the Lagos State High Court. After trial, HON. JUSTICE K. O. ALOGBA in his judgment delivered on the 19th day of December, 2012 dismissed the claim of the Appellant. Dissatisfied with the judgment, the Appellant filed an amended Notice of Appeal dated 23rd January, 2015 on the 27th January, 2015 setting out 12 grounds of Appeal.

The Originating Summons before the trial Court sought answers to the following questions:
1. Whether or not a letter of September 20 2011, written by the 1st Defendant to the Claimant listed in the schedule hereunder as 1st letter constituted a valid offer by the 1st Defendant to sell to the Claimant, a 5 bedroom house known as 28D Glover Road, Ikoyi Lagos (hereinafter referred to as 28D).
2. Whether or not the request made by the Claimant on the telephone to the 1st Defendant on receipt of the said 1st letter to the effect that the offer in respect of 28D should be consolidated with an earlier offer in respect of another unit of the property

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known as No28B Glover Road, Ikoyi, Lagos (herein after referred to as 28B), and that the sum of N160, 000,000.00(One Hundred and Sixty Million Naira) already paid for the said 28B be used as down payment for the combined prices of 28B and 28D, constituted a Counter offer by the Claimant to the 1st defendant.
3. If the said request made by the Claimant constituted a Counter – offer, whether or not the contents of another letter of September 20, 2011 with Ref No MM/SS/11/1068 written by the 1st Defendant to the Claimant (herein after referred to as the 2nd Letter), the 1st Defendant accepted the Counter offer and thereby constituted a valid agreement between the two parties in respect of No. 28D.
4. If question 2 is answered in the negative, whether time is of the essence of the offer contained in the 1st letter.
5. If time is of essence, whether or not the unconditional acceptance of N25,000,000.00 (Twenty Five Million Naira) paid by the Claimant to the 1st defendant on October 28th 2011 amount to a waiver of such time element.
IN THE ALTERNATIVE
6. Whether or not by the contents of the 2nd Letter, the 1st Defendant made a fresh

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offer to sell to the claimant 28D together with the said 28D as single, using the said N160,000,000.00 (One Hundred and sixty Million naira) as a down payment for both.
7. If the question 6 above is answered in the affirmative, whether or not the payment of a sum of N25,000,000.00 (Twenty Five Million Naira) on the 28th October 2011, by the Claimant to the In Defendant in addition to the sum of N160,000,000.00 (One Hundred and Sixty Million Naira) mentioned in 6 above constituted an acceptance of the 1st defendant’s offer contained in its 2nd letter and as at the said October 28, 2011, there was consensus ad idem thus crystallizing into a contract.
8. Whether or not time is of essence in the offer to sell the said two units of property to the Claimant as a single sale as contained in the said 2nd letter.
9. If question 8 above is answered in the affirmative, whether or not the unconditional acceptance by the 1st defendant of the additional sum of N25,000,000.00 (Twenty Five Million Naira) paid by the Claimant to the 1st defendant on October, 28 2011 for the said sale after the time stated in the 2nd Letter as deadline for payment has lapsed, is

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a waiver by the 1st Defendant of the time element in the offer.

The Claimant sought the following reliefs:
a) AN ORDER OF INJUNCTION restraining the 1st Defendant by itself and its agent from disposing of or dealing with or both the two units of property in any form prejudicial to the interest of the claimant.
b) AN ORDER OF INJUNCTION restraining the 2nd Defendant from registering any interest whatsoever in any one of or the two units of property known as 28B Glover Road, Ikoyi, Lagos, other than the claimant’s interest, unlike the final determination of this action.
c) A MANDATORY ORDER compelling the 1st Defendant to accept payment of the sum of N100, 000,000.00 (One Hundred Million Naira) paid by Lt. Gen M.I. Wushishi through Britannia – U Nigeria Ltd on behalf of the claimant on the 3rd January, 2012 as further payment for the purchase of both units of property known as 288 Glover Road, Ikoyi, Lagos, and the sum of N90,250, 000.00 (Ninety Million, Two Hundred and Fifty Thousand Naira) being the balance of the purchase price for both units.
d) AN ORDER directing the 1st Defendant to execute a Deed of Assignment in respect of the

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two units of property in favour of the claimant and any other instrument necessary to transfer the titles therein to the claimant and to take all other steps to perfect such titles in the name of the claimant on payment of the balance stated in (iii) above.
e) AN ORDER directing the 1st defendant to pay the costs of this action assessed at N10,000,000.00 (Ten Million Naira).

The trial Court upon due determination of the originating summons answered the questions put forward as followed:
Question (1) – No, as the letter was made subject to contract i.e. Exhibit AA2 and was later overtaken by Exhibit- AA3.
Question (2) – (5) are also answered in the negative for reasons fully spelt out in the body of the Judgment.
Question (6) – Answered in the affirmative
Question (7) – Also, because the payment was not made in compliance with the full tenor or stipulations of Exhibit – AA3, No letter of acceptance was followed, no payment was made as at 27th September, 2011.
Question (8) – Yes, time was clearly made of the essence in Exhibit- AA3.
Question (9) – No, because there was no binding agreement created by virtue of the noncompliance with

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