ADESANYA v. OSINUSI
(2020)LCN/14109(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Monday, March 23, 2020
CA/IB/191/2011
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Nonyerem Okoronkwo Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Between
ALHAJI ADESINA ADESANYA APPELANT(S)
And
FOLARIN OSINUSI RESPONDENT(S)
RATIO
WHETHER OR NOT ISSUES FORMULATED FOR DETERMINATION OF AN APPEAL THAT DOES NOT ARISE FROM THE GROUND OF APPEAL IS IRRELEVANT
The law is trite that any issue formulated for determination of an appeal which does not emanate from a Ground of Appeal is irrelevant, incompetent and valueless to the appeal and must be discountenanced by the Appellate Court. SeePOROYE & ORS VS. MAKARFI & ORS (2018) 1 NWLR (PT. 1599)91; LATUNDE & ANOR VS. LAJINFIN (1989) 3 NWLR (PT. 108)177; IDIKA V ERISI (1988) 2 NWLR (PT. 78)563. In EKE VS. OGBONDA (2006) 18 NWLR (PT. 1012)506, the Supreme Court, per Mohammed, JSC held thus:
“The law is trite that an issue for determination of any appeal is derived from the ground of appeal filed by the appellant. Therefore any issue not distilled from such grounds of appeal is incompetent and ought to be discountenanced. See GLOBE FISHING INDUSTRIES LTD VS. COKER (1990) 7 NWLR (PT. 162)265, ONYIDO VS. AJEMBA (1991) 4 NWLR (PT. 184)203.” PER OJO, J.C.A.
WHETHER OR NOT THE COURT SHALL ONLY ADMIT AN ACT ON LEGALLY ADMISSIBLE EVIDENCE
The law is that in all proceedings a Court of law shall only admit and act on legally admissible evidence. Where a Court inadvertently admits inadmissible evidence, it should not act on it. See ALADE VS. OLUKADE (1976) 1 SC (REPRINT)83; ONOCHIE & ORS VS. ODOGWU & ORS (2006) 6 NWLR (PT. 975) 65; OGUNSINA & ORS VS. MATANMI & ORS (2001) 9 NWLR (PT. 718)286.
Section 2 of the Land Instrument Registration Law, Laws of Ogun State, 2006 defines ‘Instrument’ as follows:
“Instrument” means a document affecting land in the State whereby one party (hereinafter called the grantor) confers, transfers, limits, charges or extinguishes in favour of another party (hereinafter called the grantee) any right or title to or interest in land in the State and includes:
(a) An estate contract
(b) A certificate of purchase
(c) A power of attorney under which any instrument may be executed
(d) A deed of appointment or discharge of trustees containing expressly or impliedly a vesting declaration and affecting any land to which Section 27 of the Trustee Law extends.”
Flowing from the above, it is clear that any document which transfers right, title or interest in land amongst others is a land instrument. Where a party fails to register an otherwise registrable instrument, the sanction is provided for by Section 16 of the Land Instrument Law (Supra) which provides thus:
“No instrument shall be pleaded or given in evidence in any Court as affecting any land unless the same shall have been registered in the proper office as specified in Section 3.” PER OJO, J.C.A.
PRINCIPLE TO BE FOLLOWED IN THE CONSTRUCTION OF A STATUTORY PROVISION
The law is that where a Court is faced with the construction of a statutory provision in pari materia with one that has been previously construed by the Court, it should follow the principle laid down in the earlier case. See BAKARE VS. NIGERIAN RAILWAY CORPORATION (2007) 17 NWLR (PT. 1064) 606; MOBIL OIL PLC VS. IAL INC. (2000) 6 NWLR (PT. 659)146; AND ADEWUNMI & ANOR VS. A.-G. EKITI STATE (2002) 2 NWLR (PT. 751)474.
The Supreme Court has said it all in the cases of BENJAMIN VS KALIO (SUPRA) AND ANAGBADO VS. FARUK (SUPRA). PER OJO, J.C.A.
WHETHER OR NOT TEH APPELLATE COURT IS TO ENTERTAIN ANY COMPLAIN ON THE ADMISSIBILITY OF A DOCUMENT ACTED UPON THE TRIAL COURT
The settled position of the law is that where a document admissible upon fulfillment of certain conditions is admitted without objection or by consent of parties, a trial Court is competent to act on it and the Appellate Court will not entertain any complain on the admissibility of such document. See OLUKADE VS. ALADE (1976) 1 SC (REPRINT) 83 AND IPINLAIYE II VS. OLUKOTUN (1996) 6 NWLR (PT. 453)148 AND COMPTOIR COMMERCIAL AND IND. S.P.R. LTD VS. OGUN STATE WATER CORPORATION (2002) 9 NWLR (PT. 773) 629. PER OJO, J.C.A.
THE DOCTRINE OF SPECIFIC PERFORMANCE
Specific Performance is a remedy granted to compel a party who has promised to perform an obligation under an agreement in the Specific form it was made. It is the actual accomplishment of a contract by a party bound to fulfill it. It is an equitable remedy granted at the discretion of a Court on well settled principles of law. The jurisdiction of the Court to grant an order for Specific Performance may be validly exercised where there is in existence a valid enforceable contract. It is usually granted where monetary damages would be inadequate compensation for the breach of the agreement. See BFI GROUP CORPORATION VS. BUREAU OF PUBLIC ENTERPRISES (2012) 18 NWLR (PT. 1322)209; ACHONU VS. OKUWOBI (2017) 14 NWLR (PT. 1584)142; IBEKWE VS. NWOSU (2011) 9 NWLR (PT. 1251)1 AND HELP (NIG) LTD VS. SILVER ANCHOR (NIG) LTD (2006) 5 NWLR (PT. 972)196. PER OJO, J.C.A.
FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of the High Court of Justice, Ogun State, holden at Ijebu-Ode in Suit No. HCJ/128/2007 delivered on 17th February 2011, wherein the lower Court found in favour of the Respondent who was the Claimant before it. The Appellant who was the Defendant is dissatisfied with the judgment hence this Appeal.
Briefly, the facts of the case before the lower Court are that the Claimant and the Defendant entered into a contract for sale of land for the sum of One Hundred and Twenty Thousand Naira (N120, 000.00). Both parties executed a Land Transfer Agreement which was tendered and admitted in evidence as Exhibit B. The Claimant paid an initial sum of Sixty Thousand Naira (N60,000.00) and was to pay the balance of Sixty Thousand Naira (N60,000.00) after the Defendant must have obtained the Certificate of Occupancy on the land. The formal transfer of the land was to be effected after the payment of the outstanding sum and not later than five months from the date Exhibit B was executed. The agreement between the parties later broke down as a result of which the Respondent as
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Claimant at the lower Court instituted an action against the Appellant. The Claimant in paragraph 30 of the Further Amended Statement of Claim filed on 23rd December, 2009 sought the following reliefs against the Defendant:
“30. Whereof the Claimant claims against the Defendants jointly and severally as follows:
(a) A Declaration that the Claimant is deemed to be entitled to the Certificate of Occupancy of the piece of land situate, lying and being along Ibadan/Ilese-Benin Road, Ijari, Ijebu Ode covered by Survey Plan No. KOG/92/018 dated 02-04-92.
(b) An order of specific performance against the Defendant to perform his obligation or duty under the contract of sale agreement entered into with the Claimant and deliver all title documents of the afore described land to the Claimant.
(c) An order of perpetual injunction restraining the Defendant from further trespassing on the Claimant’s land afore described.”
At the trial the Claimant called four witnesses while the Defendant called six (6) witnesses.
The lower Court in its judgment held as follows:
“From the evidence of the Claimant and Exhibit B the
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land transfer agreement and in line with the pleadings of Claimants, the Claimant has been able to satisfy the Court of his title to the land in question. He in law is therefore entitled to an Order of Perpetual Injunction.
I hereby Order Perpetual Injunction against the defendant and they are hereby restrained from further trespassing on the Plaintiff’s land situate and lying and being along Ibadan Ilese Road Ijari, Ijebu-Ode covered by Survey Plan No. KOG/92/018 dated 2nd April, 1992.”
The Appellant filed a Notice of Appeal against the judgment on 18th February, 2011 which notice was amended pursuant to an Order of this Court made on 6th February, 2017. The Amended Notice of Appeal which contains four Grounds of Appeal was filed on 9th February, 2011. Parties filed and exchanged Briefs of Argument.
The Appellant’s Brief of Argument filed on 12th October, 2010 was deemed on 24th January, 2019. The Respondent’s Brief of Argument filed on 2nd April, 2019 was deemed filed on 9th of May, 2019 while the Appellant’s Reply Brief of Argument was filed on 22nd May, 2019. The said Briefs of Argument were adopted and relied
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upon by the respective parties at the hearing of the appeal before us on 28th January, 2020.
The Appellant in the Brief of Argument filed on his behalf formulated the following four issues for consideration and determination of this appeal.
1. Whether specific performance of the document and possession of the land were rightly granted by the lower Court to the Respondent when the property was already in possession of a third party who was not a party to the case at hand.
2. Whether the lower Court was right to have awarded a right to Certificate of Occupancy to the Claimant/Respondent, when there was already in existence a previous Certificate of Occupancy.
3. Whether His Lordship in the Lower Court was right by admitting and relying on EXHIBIT B “Land Transfer Agreement” which was not stamped and registered as required by law.
4. Whether the Judgment of the lower Court is in accordance with the weight of evidence adduced.”
The Respondent for his part formulated the following two issues for consideration and determination:
1. Whether the sale of the land in dispute by the Appellant to a 3rd Party ever before
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he obtained the Certificate of Occupancy in his name notwithstanding Exhibit B is not caught by the Legal Maxim “Nemodat Quod Non Habet”?
2. Whether the Land Transfer Agreement Exhibit “B” was wrongly admitted in evidence by the lower Court considering the Supreme Court decision in the case of BENJAMIN VS KALIO (2018) 15 NWLR (PT. 1641)38.
The Appellant’s Reply Brief contain an objection to issue 1 formulated on behalf of the Respondent in his Respondent’s Brief of Argument. The ground of the objection is that the Respondent who did not file a Cross Appeal cannot formulate issues outside those formulated by the Appellant as he has done. He cited in support the cases of ABEGUNDE VS. ONDO STATE HOUSE OF ASSEMBLY & ORS (2014) LPELR- 23683 (CA); KOKO VS. NDIC (2015) LPELR- 40401 (CA); GABBY STORES (NIG) LTD VS. MAGAJI & ORS (2015) LPELR- 40381 (CA) and urged us to discountenance all arguments of Respondents Counsel on the said issue 1.
The law is trite that any issue formulated for determination of an appeal which does not emanate from a Ground of Appeal is irrelevant, incompetent and valueless to the appeal
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and must be discountenanced by the Appellate Court. SeePOROYE & ORS VS. MAKARFI & ORS (2018) 1 NWLR (PT. 1599)91; LATUNDE & ANOR VS. LAJINFIN (1989) 3 NWLR (PT. 108)177; IDIKA V ERISI (1988) 2 NWLR (PT. 78)563. In EKE VS. OGBONDA (2006) 18 NWLR (PT. 1012)506, the Supreme Court, per Mohammed, JSC held thus:
“The law is trite that an issue for determination of any appeal is derived from the ground of appeal filed by the appellant. Therefore any issue not distilled from such grounds of appeal is incompetent and ought to be discountenanced. See GLOBE FISHING INDUSTRIES LTD VS. COKER (1990) 7 NWLR (PT. 162)265, ONYIDO VS. AJEMBA (1991) 4 NWLR (PT. 184)203.”
Upon a careful consideration of the Grounds of Appeal contained in the Amended Notice of Appeal I am of the view that the Respondent’s issue 1 has its root in Ground a(i) and d. There is therefore no merit in the Appellant’s Objection to Respondent issue 1 and same is accordingly overruled.
Having considered the issues formulated by parties, I find the following issues apt and would determine this appeal on them:
(i) Whether the lower Court was right when it
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admitted and relied on Exhibit B, the Land Transfer Agreement. (Appellant’s Issue 3 and Respondent’s Issue 2)
(ii) Whether upon a consideration of facts and evidence before it, the lower Court was right when it granted the claims of the Respondent. (Appellant’s Issues 1, 2 and 4 and Respondent’s Issue 1)
ISSUE NO. 1:
“Whether the lower Court was right when it admitted and relied on Exhibit B, the Land Transfer Agreement (Appellant’s issue 3 and Respondent’s issue 2)”
Learned Counsel for the Appellant submitted that Exhibit B is a document intended to transfer the land in dispute and therefore an instrument within the meaning of the Land Instrument Registration Law, Laws of Ogun State, 2000. He submitted further that by virtue of Section 16 of the Land Instrument Law no instrument shall be pleaded or given in evidence in any Court as affecting any land unless same has been registered in the proper office. He further referred us to Section 10 of the Land Instrument Law which provides that no instrument shall be registered unless it contains a proper and sufficient description and a Plan of the
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land affected by the instrument. He relied on the provisions of Section 22(4) of the Stamp Duties Act to submit that an instrument executed in Nigeria or relating to any property situate in Nigeria shall not be given in evidence unless it is duly stamped in accordance with the law in force in Nigeria at the time it was first executed.
His argument is that Exhibit B did not meet the requirement of the law for admissibility as it was neither stamped nor registered and had no Survey Plan affixed to it and should not have been admitted in evidence by the lower Court. He urged us to so hold. He craved in aid of his submission the cases of ROMAINE VS. ROMAINE (1992) 4 NWLR (PT. 236) 650; AKINDURO VS. ALAYA (2007) NSCQR (3) 601; ATANDA VS. COMMISSIONER FOR LAND AND HOUSING (2018) 1 NWLR (PT. 1599)32 AT 39.
He urged us to resolve this issue in favour of the Appellant and expunge Exhibit B from the record.
Arguing per contra, learned Counsel to the Respondent submitted that Exhibit B is admissible in evidence by virtue of the decision of the Supreme Court in the case of BENJAMIN VS. KALIO (2018) 15 NWLR (PT. 1641)38 and further relied on Section 16 of the Court of Appeal Act
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to submit that non-compliance with the provision of Section 91(3) of the Stamp Duties Act is irrelevant and urged us to resolve this issue against the Appellant.
In the Reply Brief of Argument, Learned Counsel to the Appellant argued that the case of BENJAMIN VS. KALIO (SUPRA) is not applicable because the case at hand is not in respect of a mortgage transaction and the agreement in contention was not executed before 1944.
Exhibit B which is the document in contention is a Land Transfer Agreement dated 2nd October, 1994 entered into by the parties in this case. The law is that in all proceedings a Court of law shall only admit and act on legally admissible evidence. Where a Court inadvertently admits inadmissible evidence, it should not act on it. See ALADE VS. OLUKADE (1976) 1 SC (REPRINT)83; ONOCHIE & ORS VS. ODOGWU & ORS (2006) 6 NWLR (PT. 975) 65; OGUNSINA & ORS VS. MATANMI & ORS (2001) 9 NWLR (PT. 718)286.
Section 2 of the Land Instrument Registration Law, Laws of Ogun State, 2006 defines ‘Instrument’ as follows:
“Instrument” means a document affecting land in the State whereby one
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party (hereinafter called the grantor) confers, transfers, limits, charges or extinguishes in favour of another party (hereinafter called the grantee) any right or title to or interest in land in the State and includes:
(a) An estate contract
(b) A certificate of purchase
(c) A power of attorney under which any instrument may be executed
(d) A deed of appointment or discharge of trustees containing expressly or impliedly a vesting declaration and affecting any land to which Section 27 of the Trustee Law extends.”
Flowing from the above, it is clear that any document which transfers right, title or interest in land amongst others is a land instrument. Where a party fails to register an otherwise registrable instrument, the sanction is provided for by Section 16 of the Land Instrument Law (Supra) which provides thus:
“No instrument shall be pleaded or given in evidence in any Court as affecting any land unless the same shall have been registered in the proper office as specified in Section 3.”
It follows therefore that where a party fails to register an instrument, it shall not be pleaded or given in evidence in
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any Court as affecting any land and where pleaded the Court is entitled to strike out the relevant paragraphs. That is the position of Learned Counsel to the Appellants.
Respondent’s Counsel relying on the Supreme Court case of BENJAMIN VS. KALIO (2018) 15 NWLR (PT. 164) 38 urged us to hold to the contrary.
The Supreme Court while interpreting the provision of the Land Instrument Law of Rivers State which is impari materia with that of Ogun State held that issues relating to pleadings and admissibility of documents are governed by law or rules of Evidence and came to the conclusion that the House of Assembly of a State is precluded from enacting any laws on evidence and/or admissibility of it. In the case of BENJAMIN & 2 ORS. VS. KALIO & ANOR. also reported in (2010) 12 SC (PT. X) 67 AT 82-87, Eko, JSC held:
“It is obvious to me, upon painstaking and dispassionate perusal of Section 20 of the Law Cap 74 of Rivers State that the Rivers State House of Assembly had purportedly enacted a piece of legislation on evidence. Their legislative intent or purport is clear and categorical that no land instrument, mandatorily registrable, which is
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not so registered “shall not be pleaded or given in evidence in any Court as affecting any land”. This clearly is an act of legislative trespass into the exclusive legislative terrain of the National Assembly prescribed by the Constitutions since 1979. Section 20 of the Law Cap 74 of Rivers State has therefore rendered inadmissible Exhibit L, a piece of evidence that is relevant and admissible in evidence under the Evidence Act.
Because, in my firm view, Exhibit L is a piece of evidence pleadable and admissible in evidence by virtue of the Evidence Act read together with item 23 of the Exclusive Legislative and Section 4(3) & (5) of 1999 Constitution as amended (and the provisions in parimateria with Section 4(3) and (5) of the 1979 Constitution), it cannot accordingly, be rendered inadmissible in evidence in any proceedings before any Court of law by any law enacted by the State House of Assembly, as Rivers State House of Assembly had purportedly done by their enactment of Section 20 of the Law Cap 74.
In my firm view, the argument of the Appellant, that Section 20 of the Land Instruments (Preparation and Registration) Law, Cap 74 of the Laws of Rivers State,
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has rendered Exhibit L, a Land Instrument, unpleadable and inadmissible in the proceedings at the trial Court goes to naught. It does not fly in view of the current and prevailing state of the Constitutional Law. Admissibility of Exhibit L is governed by Evidence Act; not the Rivers State Lands Instrument (Preparation and Registration) Law, Cap. 74. In my Judgment: a piece of evidence pleadable and admissible in evidence by dint of the Evidence Act cannot be rendered unpleadable and inadmissible, in evidence by a law enacted by a State House of Assembly under the prevailing Constitutional dispensation. The learned trial Judge (Mary Peter-Odili, J- as she then was) was therefore right when she stated at Page 141 of the Records that Exhibit L was properly pleaded- and cannot therefore be said to be inadmissible”.
Also in ANAGBADO VS. FARUK (2018) LPELR- 44909 (SC) AT 31-33, PARAS. E-C, the Supreme Court, per Eko, JSC held as follows:
“Section 15 of the said Law, Cap, 85, provides:
“No instruments shall be pleaded or given in evidence in any Court as affecting any land unless the same shall have been
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registered in the proper office as specified in Section 3.”
The purport of this law, as argued by the Appellant, is that a registrable land instrument, which though is a material and relevant piece of evidence under the Evidence Act, 2011 which has not been so registered under the Law Cap 85 is not admissible in evidence in any Court of Law. The argument neither impresses nor convinces me.
The Law Cap. 85 of Kaduna State (Section 15 thereof), in so far as it purports to render inadmissible any material and relevant piece of evidence that is admissible in evidence under the Evidence Act, 2011, is to that extent inconsistent with the Evidence Act, enacted by the National Assembly pursuant to the powers vested in it by Section 4(2) of the Constitution and Item 23 of the Exclusive Legislative List set out in Part I of the Second Schedule to the Constitution. Evidence is Item 23 in the Exclusive Legislative List. I am of the firm view that, in view of Section 4(5) of the Constitution read with Section 4(2) and Item 23 of the Exclusive Legislative List set out in Part I of the Second Schedule to the Constitution, in the event of Section 15 of the Law Cap. 85 of Kaduna State
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being in conflict or inconsistent with any provisions of the Evidence Act, the provisions of the Evidence Act shall prevail. The sum total of all I am saying, on this issue, is that Section 15 of the Kaduna State Law Cap 85 cannot render inadmissible Exhibit P2 which evidence is material, relevant and admissible in evidence under the Evidence Act, 2011. A piece of evidence admissible in evidence under the Evidence Act cannot be rendered inadmissible in evidence by any law enacted by the House of Assembly of any State.”
The law is that where a Court is faced with the construction of a statutory provision in pari materia with one that has been previously construed by the Court, it should follow the principle laid down in the earlier case. See BAKARE VS. NIGERIAN RAILWAY CORPORATION (2007) 17 NWLR (PT. 1064) 606; MOBIL OIL PLC VS. IAL INC. (2000) 6 NWLR (PT. 659)146; AND ADEWUNMI & ANOR VS. A.-G. EKITI STATE (2002) 2 NWLR (PT. 751)474.
The Supreme Court has said it all in the cases of BENJAMIN VS KALIO (SUPRA) AND ANAGBADO VS. FARUK (SUPRA). Evidence which is pleaded and has passed the admissibility test under the Evidence
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Act, 2011 cannot be rendered inadmissible by a law enacted by a House of Assembly and in this case the Ogun State House of Assembly.
Learned Counsel to the Appellant further submitted that an instrument executed in Nigeria shall not be given in evidence or be available for any purpose whatsoever in civil proceedings unless it is duly stamped. He relied on Section 22(4) of the Stamp Duties Act. Section 22(4) of the Stamp Duties Act is subject to the provision of Section 91(3) of the Act which provides thus:
“Where in any legal proceedings or before any arbitrator or referee a receipt is inadmissible by reason of it not being duly stamped, the officer presiding over the Court, the arbitrator or referee may, having regard to the illiteracy and ignorance of the party tendering the receipt in evidence admit the receipt upon payment of a penalty of four naira and the officer presiding over that Court, the arbitrator or referee, as the case may be, shall note the payment of the penalty upon the face of the receipt so admitted and a receipt shall be given for the same.”
The law is that when the phrase “subject to” is used in a
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statute it connotes a condition, a restriction or a limitation. It follows therefore that Section 22(4) of the Stamp Duties Act does not confer the toga of inadmissibility on an unstamped document in a civil proceeding. By virtue of Section 91(3) such a document is admissible upon payment of penalty. This is the sanction for the omission and not total rejection. Exhibit B does not become inadmissible for failure to pay Stamp duty.
It is also important to note that Exhibit B is a document pleaded and relied upon by both parties. See Paragraphs 20 – 21 of the Further Amended Statement of Defence. The settled position of the law is that where a document admissible upon fulfillment of certain conditions is admitted without objection or by consent of parties, a trial Court is competent to act on it and the Appellate Court will not entertain any complain on the admissibility of such document. See OLUKADE VS. ALADE (1976) 1 SC (REPRINT) 83 AND IPINLAIYE II VS. OLUKOTUN (1996) 6 NWLR (PT. 453)148 AND COMPTOIR COMMERCIAL AND IND. S.P.R. LTD VS. OGUN STATE WATER CORPORATION (2002) 9 NWLR (PT. 773) 629.
Exhibit B was admitted in evidence without any
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objection from the Appellant. Its validity was not put in issue in the pleadings of parties at the lower Court. The invitation of the Appellant who pleaded and relied on the said Exhibit that its validity be determined by this Court is nothing but an afterthought which must be refused.
It is for all of the above that I find no substance in the submission of learned counsel to the Appellant that Exhibit B was wrongly admitted. There is no merit in his complaint and I so hold.
This issue is thus resolved against the Appellant.
ISSUE 2
“Whether upon a consideration of facts and evidence before it, the lower Court was right when it granted the claim of the Respondent.” (Appellant’s Issues 1, 2 and 4 and Respondent’s Issue 1)
Learned Counsel to the Appellant argued that the lower Court was in error when it granted an Order of Specific Performance against the Appellant who was no longer in possession of the disputed land. He submitted that the Respondent who was aware that the land had been sold to a third party was obliged to join him as a party to the suit and failure to do so was fatal. He relied on the cases of
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OSHAFUNMI VS. ADEPOJU (2014) LPELR- 33073 AND UNIVERSAL LTD VS. IJESHA U.T. & TRANSPORT CO LTD (1992) LPELR 3415 (SC).
He further submitted the lower Court was in error when it granted the relief sought by the Respondent for an order that he was entitled to be issued with a Certificate of Occupancy. This he said is because there was evidence before the Court that a Certificate of Occupancy had already been issued in favour of the Appellant on the same land.
He submitted that there cannot be two valid Certificates of Occupancy in the name of two different persons on the same parcel of land and urged us to so hold. He relied on the cases of LAWSON VS. AFANI CONSTRUCTION CO. NIG.LTD (2002) FWLR (PT. 109)1736 AT 1756; MAJOR IBRAHIM VS. DR. MOHAMMED (2003) 13 NSCQR 647 AT 650 AND MADU VS. MADU (2008) 33 NSCQR (II)931 AT 938.
Arguing per contra, Learned Counsel to the Respondent submitted that the Appellant had no land to sell to any 3rd party at the time he did in view of the existence of Exhibit B. He relied on the legal maxim, NEMO DAT QUOD NON HABET and the case of GBADAMOSI & ORS VS. AKINLOYE & ORS (2013) LPELR 20937 (SC).
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He submitted further that since the Appellant had nothing to transfer to any other person, the issue of non-joinder of parties to the suit before the lower Court did not arise. In response to the submission of Appellant’s Counsel that two Certificates of Occupancy cannot exist on the same land in the name of two different persons, Respondent’s Counsel submitted that the judgment of the lower Court was that the Respondent was entitled to be issued a Certificate of Occupancy and no more. He urged us to dismiss the appeal and affirm the judgment of the lower Court.
Specific Performance is a remedy granted to compel a party who has promised to perform an obligation under an agreement in the Specific form it was made. It is the actual accomplishment of a contract by a party bound to fulfill it. It is an equitable remedy granted at the discretion of a Court on well settled principles of law. The jurisdiction of the Court to grant an order for Specific Performance may be validly exercised where there is in existence a valid enforceable contract. It is usually granted where monetary damages would be inadequate compensation for the breach of the agreement.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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See BFI GROUP CORPORATION VS. BUREAU OF PUBLIC ENTERPRISES (2012) 18 NWLR (PT. 1322)209; ACHONU VS. OKUWOBI (2017) 14 NWLR (PT. 1584)142; IBEKWE VS. NWOSU (2011) 9 NWLR (PT. 1251)1 AND HELP (NIG) LTD VS. SILVER ANCHOR (NIG) LTD (2006) 5 NWLR (PT. 972)196.
The pertinent question which begs for an answer now is whether a valid enforceable contract was in existence to justify the order of Specific Performance made by the lower Court.
From the pleadings and evidence on record, it is not in dispute that the Appellant entered into a contract for the sale of the disputed land with the Respondent. The contract is embodied in the document titled “Land Transfer Agreement” which was tendered and admitted in evidence as Exhibit B. It is trite law that a binding contract is in existence when there is a precise offer, an unqualified acceptance of the offer and a legal consideration. Furthermore, the parties must be ad idem on the terms contained in the agreement for the contract to be regarded as legally binding and enforceable. See BALIOL (NIG) LTD VS. NAVCON (NIG) LTD (2010) 16 NWLR (PT. 1220) 619; BILANTE INT’L LTD VS. NDIC (2011) 15 NWLR (PT.
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1270)407; ODUTOLA VS. PAPERSACK (NIG) LTD (2006) 18 NWLR (PT. 1012)470 AND OMEGA BANK (NIG) LTD VS. O.B.C. LTD (2005) 8 NWLR (PT. 928)547. Where a contract is in writing, the terms therein are binding on the parties.
It is not in dispute that Exhibit B was freely entered into by the Appellant and the Respondent. It is therefore binding on them and the terms contained therein govern the transaction between them.
In the case of MINI LODGE LTD & ANOR VS. NGEI & ANOR (2009) 18 NWLR (PT. 1173)254, the Supreme Court, per Adekeye, JSC held thus:
“The evidence before the Court portrayed what could have been a simple contract of sale and transfer of property. An offer must be accepted in order to crystallize into a contract.
A contract of sale exists where there is a final and complete agreement of the parties on essential terms of the contract, namely the parties to the contract, the property to be sold, the consideration for the sale and the nature of the interest to be granted. Once there is agreement on these essential terms, a contract of sale of land or property is made and concluded.
In a contract for sale of property, where
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payment was paid, the law is that the contract for purchase has been concluded and is final leaving the payment of the balance outstanding to be paid. The contract for the sale and purchase is absolute and complete for which each party can be in breach for non-performance and for which action can be maintained for specific performance.”
It appears to me that the complaint of the Appellant in the main in this appeal is that parties are not ad idem on the terms contained in Exhibit B. I find it pertinent to reproduce the findings and conclusion of the trial judge on this point. The trial judge at page 281 of the Record noted thus:
“Chief Mamora for the Defendant had argued in his address that the agreement of parties was the balance of N60,000 was to be paid by the Claimant within five months of the agreement and he having not done so amounted to a breach of the agreement. It was also the pleadings of the Defendant vide Paragraphs 3a of the Statement of Defence and his evidence in Court that the Claimant was to be responsible for the monies expended on the Certificate of Occupancy the Defendant was to obtain in defendant’s name and also
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pay for the blocks on the Land and that the Claimant did not forward his Tax Clearance for the Certificate of Occupancy to him.
To this Chief Odugbesan had responded that argument of Chief Mamora was misconceived as the terms of the agreement were that the Claimant was to be responsible for the Governor’s consent only and was to pay the balance of N60,000 only after the defendant had obtained the Certificate of Occupancy on the land.”
The Learned trial judge went on at pages 281 -282 of the Record to conclude as follows:
“The combined effect of paragraphs 2 and 5 of the agreement to my mind is that as at the dated (sic) the agreement was made the defendant was yet to obtain the Certificate of Occupancy of the land in his name though the processing of same was said to be at an advanced stage and that a formal transfer of the land to Claimant was only to be made after the defendant had obtained the C/O and also the Governor’s consent, and it was the Governor’s consent the Claimant was to be responsible for and that the N60,000 was not payable until the land was formally transferred to the Claimant by the Defendant. It
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is also evident from paragraph 7 of the Agreement that by the time of the agreement the defendant had already collected the initial N60,000 first immediate payment and put the Claimant in possession. Paragraph 7 also reveals that the defendant had collected the initial N60,000 before he gave Exhibit A the Survey Plan to the Claimant. Paragraph 7 of the agreement Exhibit C also reveals that the obligation was upon the defendant to make a formal transfer of the land to the Claimant within 5 months.
The terms and conditions of the Agreement do not include that the Claimant was to pay for the Certificate of Occupancy or mention payment for blocks on the land.”
Having carefully perused Exhibit B, I find no reason whatsoever to disturb the above findings of the trial Judge. They are based on terms mutually agreed upon by the parties in Exhibit B. It is also significant to note that the above finding has not been made the subject of this appeal. There is no appeal against it. It therefore stands. See ILONA VS. IDAKWO & ANOR (2003) 11 NWLR (PT. 830) 53; WOMILOJU & ORS VS. ANIBERE & ORS (2010) 10 NWLR (PT. 1203)545 and ATOYEBI VS. GOVERNOR OF OYO STATE
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(1994) 5 NWLR (PT. 344)290. I have no hesitation in coming to the conclusion that the findings of fact made by the learned trial Judge and the conclusion reached thereon quoted above stand admitted and undisputed by the Appellant and I so hold.
My firm view is that upon the payment of the sum of sixty thousand naira as part payment to the Appellant which money he acknowledged, a valid and enforceable contract came into being between the parties and in that circumstance the lower Court may exercise its jurisdiction to grant an order for specific performance. See the case of HENRISON OKECHUKWU VS. HUMPHREY C. ONUORAH (2000) 15 NWLR (PT. 691) 597 AT 610, PARAS. E-G, where Belgore, JSC held has follows:
“Where parties agree in a solemn contract they are supposed to fulfill all the conditions therein faithfully and honestly. Parties who enter into a contract are expected to honour its terms. A party who induced the other party to enter into a contract, which contract provides benefits for the inviting party which he has utilized without complaint, he cannot be found to deny the validity of that contract.”
Having induced the Respondent
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to enter into the contract covered by Exhibit B, which provided benefits for the Appellant in the sum of N60,000.00, he (the Appellant) cannot deny the validity of that contract and I so hold.
It follows therefore that the Appellant upon execution of Exhibit B with the Respondent has divested himself of any interest in the disputed land and had no interest to transfer to a third party. The law is well settled that a person can only convey to another that which he has. NEMO DAT QUOD NON HABET. See ADELAJA VS. FANOIKI (1990) 2 NWLR (PT. 131)137; COKER VS. ANIMASHAUN (1960) LLR 71 and BOULOS VS. ODUNSI (1959) S.C.N.L.R. 591.
The following terms are contained in Exhibit B.
(1) The Claimant (Respondent) was to pay half of the purchase price which is the sum of N60, 000.00
(2) The balance of N60, 000.00 becomes payable by the Respondent upon the formal transfer of the land to him.
(3) The formal transfer would be made after the Appellant has obtained the certificate of occupancy of the property in his name and after which the balance of the purchase price which is a sum of N60, 000.00 would be due for payment.
It is clear from the terms
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of the agreement that the Appellant was to obtain the Certificate of Occupancy before the payment of the balance of the purchase price. In other words, there was a condition precedent to be fulfilled by the Appellant before the payment of the balance of the purchase price by the Respondent. Evidence on record reveal that the Appellant sold the disputed land to a third party before he obtained the Certificate of Occupancy. The agreement was for him to obtain the Certificate of Occupancy before the Respondent paid the balance. To my mind, the sale by the Appellant to a 3rd party would only be valid if the Respondent failed to pay the balance after the Certificate of Occupancy was obtained by the Appellant as agreed. The Respondent did not breach the terms of Agreement and as such the Appellant could not renege on same. He was not in breach of the Agreement at the time the Appellant sold to a 3rd party. The Appellant had no interest to transfer at the time he sold and I so hold.The lower Court was therefore right when it granted an Order of Specific Performance of the contract against the Appellant.
On where the weight of evidence before the lower Court tilts, it
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tilts in favour of the Respondent and I so hold. There is evidence on record that upon the payment of Sixty Thousand Naira as agreed by parties the Appellant put the Respondent into possession of the land. There is evidence that the Respondent exercised acts of ownership by putting tenants on the land. The Appellant who agreed to obtain a Certificate of Occupancy to complete the transaction with the Respondent failed to do so. He went on to sell to a 3rd party before he secured the Certificate of Occupancy.
In the face of the above facts, the lower Court was right when it granted the reliefs sought by the Respondent and I so hold.
Issue No. 2 is resolved against the Appellant
Having resolved the two issues against the Appellant, it follows that this appeal is completely devoid of merit and it is according dismissed. I affirm the Judgment of the Ogun State High Court holden at Ijebu-Ode in Suit No. HCJ/128/2008 delivered on 17th of February, 2011. The Appellant shall pay to the Respondent N100,000 costs.
HARUNA SIMON TSAMMANI, J.C.A.: I read in advance the judgment just delivered by my learned brother, Folasade Ayodeji Ojo, JCA.
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The issues presented for determination by this Court were comprehensively considered and resolved by my learned brother. I agree absolutely with the reasoning of and conclusion arrived at by my learned brother. I adopt same as mine.
I therefore agree that this appeal ¡s devoid of any merit. It is accordingly dismissed. I abide by the order on costs.
NONYEREM OKORONKWO, J.C.A.: From the moment the agreement for sale of land for the sum of one hundred and twenty thousand N120, 000.00 was made and part payment of N60,000 was given, the respondent in equity became entitled as beneficial owner of the land in question. The fact that the balance of the payment of the remaining N60, 000 being payable upon the appellant obtaining the certificate of occupancy thereof is not a condition precedent to the contract but to the payment of the outstanding balance. See Ogunbami vs. Abowab…
I therefore agree with the lead judgment of Folasade Ayodejí Ojo in the lead judgment.
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Appearances:
OTUNBA A.O. MAMORA For Appellant(s)
A.A. OGUNBA with him, E.L.INYIAMA For Respondent(s)
