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MRS. JOSEPHINE IDONGESIT MBAT v. THE HONOURABLE MINISTER, FEDERAL CAPITAL TERRITORY & 2 ORS.
SUPREME COURT OF NIGERIA
(KEKERE-EKUN; GARBA; OGUNWUMIJU; SAULAWA; ABUBAKAR, JJ.SC)
BACKGROUND FACT
The Honourable Minister, Federal Capital Territory (FCT) (1st Respondent) through the approved Guidelines in Gazette No. 82 Vol.92 of 15/8/2005, approved the sale of Federal Government Houses in FCT to deserving career civil servants. The modalities were equally provided for the sale of the said houses. Mrs. Josephine Idongesit (Appellant) emerged as the winning bidder and subsequently, the Federal Government through its agency – The Federal Capital Territory Administration (2nd Respondent) gave the Appellant an offer letter dated 13th December 2005 for the property known as Block D7A, Flat 2, Zone D, Apo District, FCT – Abuja which contained payment terms of offer between the 1st Respondent as the Lessor and the Appellant as the Lessee. After the expiration of the time within which the Appellant was expected to make the full and final payment, particularly the third instalment, the 1st and 2nd Respondents gave the Appellant a grace period of over six (6) months, but the Appellant still defaulted in making the final payment. The 1st and 2nd Respondents upon the default of the Appellant to comply with terms and conditions contained in the offer letter withdrew the offer and terminated the contract with the Appellant.
The 1st and 2nd Respondents having terminated the contract with the Appellant offered the property to Dr. Adeyinka Taiwo (3rd Respondent) as a replacement to an earlier property sold to her which had a defect. The 3rd Respondent accepted by making full payments within the time stipulated in the letter of offer and was issued a handover note. Unhappy with the decision of the 1st and 2nd Respondents, the Appellant instituted an action at the Federal High Court claiming the property in question and other reliefs. At the end of the trial, the Appellant’s claim was dismissed.
The Appellant aggrieved by the trial Court’s decision, appealed to the Court of Appeal (lower Cower) which also affirmed the decision of the trial Court and dismissed the Appellant’s appeal.
Further aggrieved by the decision, the Appellant appealed to the Supreme Court. One of the issues raised for determination was: Whether the lower court was right in holding that the letter of offer did not contain any clause incorporating mortgage financing for the purchase of the properties intended for career civil servants, and that there was no clear indication of the parties’ intention to include such financing by reference in the letter of offer.
ARGUMENTS
The Appellant’s Counsel argued essentially that the letter of offer to the winning bidder issued to the Appellant must be construed with the approved guidelines which indicated that the successful bidders are entitled to mortgage access as arranged by the Federal Government. The counsel stated that where documents form part of a long-drawn transaction, such as in the instant case, they should be interpreted not in isolation but in the context of the totality of the transaction in order to fully appreciate their legal purport and impact.
Counsel submitted that the offer letter issued to the Appellant by the 1st and 2nd Respondents cannot be construed without recourse to the Approved Guidelines which is the pivot for the sale of Federal Government Houses in the FCT and which also made provision for the mortgage financing for civil servants through the Federal Mortgage Bank for the purchase of the houses. Counsel argued that since the Federal Government breached the contract by its failure to fulfil its promise of mortgage financing the Appellant is therefore entitled to the possession of the property.
In response, the learned Counsel for the 1st and 2nd Respondents contended that there was no breach of contract on their part between the Appellant and the 1st and 2nd Respondents. The learned counsel argued further that the breach occurred due to the Appellant’s failure to make full and final payment within the period stipulated in the offer letter. In conclusion counsel submitted that the consequences of such a breach were clearly outlined in the agreement between the parties: firstly, that no extension of time for payment shall be granted by either party; and secondly, by virtue of clause 4 of the contract, the failure of the lessee to comply with the stipulated payment terms would result in the automatic voiding of the contract. The Court was urged to uphold this argument.
DECISION OF THE COURT
In resolving the issue, the Supreme Court held that:
The position of the law is that where the parties to a contract evince an intention to incorporate another document into their contract by reference, the words of incorporation must be found in the document into which terms are incorporated by reference. The immutable position of the law is that the doctrine of “incorporation by reference” does not inure as a matter of natural consequences nor as a matter of course, rather, for the principle to be called in aid, conditions must be shown to exist to wit: a) the secondary document must be shown to have been in existence as at when the primary document was made; b) the primary document must describe with ‘particularity’ the secondary document; c) the primary document must carry and ‘express’ intention that the secondary document should be part of it (words of incorporation)
Issue resolve in favour of the Respondents
Solomon E. Umoh SAN with Emmanuel Ekong Esq., for the Appellant
Betty A. Umegbulem Esq., with Linda I. Musa Esq., and Helen O. Egbunu Esq., and Olanike M. Jimoh Esq., for the 1st and 2nd Respondents
P.B. Daudu Esq., with E.C. Onyekwere for the 3rd Respondent
This summary is fully reported at (2024) 10 CLRN in association with ALP NG & Co.
See www.clrndirect.com ; www.alp.company
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