Syndicated Investment Holdings Limited V. Nitel Trustees Limited & Anor (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of Dada J of the High Court of Lagos State in Suit No LD/401/2011 delivered on 22nd day of November 2012 dismissing the appellant’s claim for damages for breach of contract.

The facts of the case are not in dispute. On Wednesday, the 2nd day of May 2007, the Respondents, who are a company in liquidation and the liquidator respectively, advertised a number of properties for sale, inviting bids for the same – Exhibit C1. One of the properties advertised for sale was 44 Gerard Road, Ikoyi (henceforth referred to as the property).

Among the conditions for the bid were the following: (a) bidders were required to submit their bids within 30 days of the advertisement, i.e. by 2 June 2007; (b) bids were to be accompanied by a bidding fee of N10,000, a certified bank draft for 10% of the bid amount, and the bidders tax clearance certificate; and (c) sitting tenants had a right of first refusal but had to bid in order to qualify to exercise their right of first refusal; (d) winners of bids were required to pay the balance of the purchase price plus 5% transaction costs within 30 days.

Pursuant to the advertisement, on 1st day of June 2007 the Appellant submitted a bid to purchase the Property for N361 million and paid the bidding fee and a mandatory 10% deposit of N36.1 million. On 20th day of June 2007, the Appellant was informed by the Respondents through Exhibit C2 at pages 13 and 14 of the Record that it had won the bid for the Property, subject only to the sitting tenant’s right of first refusal. Exhibit C2 stated that in the event that the sitting tenant did not pay the amount bidded by the Appellant on or before 31st August 2007, the Respondents would revert back to the Appellant with an offer to purchase in accordance with the terms of the exercise. This means that the appellant would be called upon to complete the purchase which, according to Condition “H” of Exhibit C1, entailed paying the balance of 90% plus 5% transaction cost. The Appellant was required to indicate his willingness to wait until the expiration of the stipulated time given to the sitting tenant to exercise the option to purchase in order to take advantage of the offer or if he is not willing to wait, to say so to enable the Respondents refund his 10% bid price. An Acceptance Form was attached to Exhibit C2. On 6 July 2007, the Appellant duly completed the Acceptance Form – Exhibit C3 at page 16 of the Record. By the 31st of August 2007, the sitting tenant in the property did not exercise the right of first refusal. The Appellant averred and led evidence that after 31/8/07 when the Respondents did not revert back to her as to how to go about completing the purchase, the appellant’s sole witness CW1 went to see the Second Respondent at the latter’s house in Abuja. CW1 claimed the Second Respondent said he was about to send the letter. Thereafter CW1 travelled to London. His further calls to the second Respondent were not answered and they never reverted back to him.

Unknown to the Appellant, on the 19th day of September 2007, the Respondents offered the Property to another company, Oystelcom for purchase Exhibit D1. Oystelcom paid its 10% bid deposit on 26 September 2007 and the Property was eventually sold to it.

On 19 May 2008, the Respondents refunded the Appellant’s deposit of N36.1 million (Exhibit C4), which they had kept since the 1st of June 2007.

The Appellant consequently as the Claimant at the Court below on the 7th day of March, 2011 initiated an action against the Respondents as 1st and 2nd Defendants. In its Writ of Summons and Statement of Claim, the Appellant/Claimant prayed for the following reliefs:

(1) Specific performance of the contract to sell a property known as 44 Gerard Road, Ikoyi, Lagos

(2) A perpetual injunction restraining the Defendants and each of them whether by servants or agents or otherwise howsoever from parting or dealing with or disposing of the said property otherwise than to the Plaintiff.

(3) Alternatively, damages in lieu of specific performance and injunction

(4) Interest

(5) Further or other reliefs

(6) Costs