OKEKE v. OBIUKWU & ANOR
(2020)LCN/15381(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Friday, September 18, 2020
CA/E/100/2016
RATIO
WORDS AND PHRASES: TRESPASS
Trespass is wrongful interference with possession. See OLANIYAN VS FATOKI (2003) 13 NWLR (PT 837) 273 at 286, OYEBAMIJI VS FABIYI (2003) 12 NWLR (PT 834) 271 at 302, OYEWUSI & ORS VS. OLAGBAMI & ORS (2018) LPELR-44906 (SC) and DOKUBO & ANOR VS. OMONI & ORS (1999) LPELR-957 (SC). As earlier pointed out, the Appellant who is not contesting the overriding ownership of the Respondents from who he was purchasing, did not plead or lead evidence of his being let into possession by the Respondents. Any act of possession by him was achieved vi et armis and amounts to trespass. See OYEWUSI & ORS VS. OLAGBAMI & ORS (supra). Appellant cannot achieve legitimate possession through trespass. See DAKAT VS. DASHE (1997) LPELR-914(SC), ABOYEJI VS. MOMOH & ORS (1994) LPELR-46 (SC) and OMIYALE VS. MACAULAY & ORS (2009) LPELR-2640 (SC). PER JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
CONTRACT: INGREDIENTS OF A BINDING CONTRACT
Where parties have failed to reduce the terms of their contract into writing the Court would be left to examine the circumstances of their transaction to see if the elements of a valid contract could be deduced. These basic elements are that there was an offer which was unconditionally accepted, consideration must have passed between them and the parties who must have capacity to contract must have the intention to create a legal relationship between them in the said transaction. The parties must be consensus ad idem on the terms of the agreement between them without leaving any vital term unsettled. See ALFOTRIN LTD VS. AG FED & ANOR (1996) LPELR-414 (SC), ABBA VS. SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED (2013) LPELR-20338(SC), OMEGA BANK (NIG) PLC VS. O.B.C. LTD (2005) LPELR-2636 (SC), PRESIDENTIAL IMPLEMENTATION COMMITTEE ON FEDERAL GOVERNMENT LANDED PROPERTIES VS. AYWILA & ANOR (2017) LPELR-43204(CA) and AGOMA VS. GUINNESS (NIG) LTD (1995) LPELR-251(SC). In ALFOTRIN LTD V. AG FED & ANOR (supra) IGHU, JSC stated the position of the law at pages 29-30 thus:
To constitute a binding contract, there must be an agreement in that the parties must be in consensus ad idem with regard to the essential terms and conditions thereof; the parties must intend to create legal relations and the promise of each party, in a simple contract, not under seal, must be supported by consideration. There must be a concluded bargain which has settled all essential conditions that are necessary to be settled and leaves no vital term or condition unsettled. See May and Butcher Ltd. v. R. (1934) 2 K.B. 17. It is a question of fact whether the parties have agreed on the essential elements of a contract. See Scammel and Nephew Ltd. v. Guston (1941) A.C. 251 and D’Silva v. Lister House Development (1971) Ch. 17. If the terms are unsettled, uncertain or vague that they cannot be ascertained with reasonable degree of certainty, there will be no valid contract enforceable at law unless the uncertain part of the contract is unsubstantial and can be separated from the vital parts thereof. See Harvey v. Pratt (1965) 1WLR 1025, Kingsley and Keith Ltd. v. Glynn Bros. (Chemicals) Ltd. (1953) 1 Lloyd’s Rep. 211 and Bishop and Baxter Ltd. v. Anglo-Eastern Trading and Industrial Co. Ltd. (1944) K.B. 12 CA.
It is instructive that the transaction here was not just a simple commercial contract but one for sale of land. The law has remained well settled to the effect that for there to be a validly binding contract for the sale of land or property, there must be 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. SeeMINI LODGE LTD & ANOR VS. CHIEF OLUKA OLAKA NGEI & ANOR (2009) 18 NWLR (PT. 1173) 254, SPERA IN DEO LTD VS. PECCUNO MINERAL INDUSTRY (NIG) LTD & ANOR (2016) LPELR-41044 (CA), GEGE VS. NANDE (2006) 10 NWLR (PT. 988) 256 AT 284 285, BIYO VS.AKU (1996) 1 NWLR (PT. 422) 1 and CHABASAYA VS. ANWASI (2010) LPELR-839 (SC). PER JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
Before Our Lordships:
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
JOHN OKEKE APPELANT(S)
And
1. MRS THERESA ODERA OBIUKWU 2. MR. NNAEMEKA ODERA OBIUKWU (ADMINISTRATORS OF THE ESTATE OF LATE CHIEF MARTIN ODERA EZEANI OBIUKWU) RESPONDENT(S)
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Enugu State, Enugu Judicial Division, delivered on the 10th December, 2015 by ONUORAH, J.
The parties had a disagreement on a land transaction which resulted in the Respondents taking out a writ of summons against the Appellant at the trial Court wherein they sought the following reliefs:
1. The sum of N500,000.00 (Five hundred thousand Naira) being general damages for trespass.
2. An order of Court directing the defendant to remove forthwith the trips of sand he deposited on the land.
3. An order of perpetual injunction retraining the defendant whether by himself or his servants, agents, workers or any other person whatsoever acting by or under his direction or instruction from further trespassing on the land or any part thereof, situate at Alulu Nike in Enugu East Local Government Area of Enugu State, measuring approximately an area of 2,506 hectares, shown on plan No. NLS/AN/779/80 attached to the certificate of occupancy granted to Late Chief Obiukwu in respect thereof and registered as No.95 at page 95 in volume 1319 in the Deeds Registry Office in Enugu.
The parties joined issues through their pleadings and while the two Respondents were the only witnesses for their case as Plaintiffs, the Appellant on his part as Defendant, testified and called two additional witnesses. Thereafter, the learned trial Judge took the final addresses of counsel for the two sides before delivering a considered judgment wherein he found for the Respondents.
Dissatisfied, the Appellant invoked the appellate jurisdiction of this Court via a Notice of Appeal filed on the 20th January, 2016 which was subsequently amended via the Amended Notice of Appeal filed on the 17th September, 2018 but deemed properly filed and served on the 27th November, 2018 containing six grounds.
At the hearing of the appeal, Echetebu Esq. adopted the Appellant’s brief filed on the 17th September, 2018 but deemed properly filed and served on the 27th November, 2018 as the arguments of the Appellant in furtherance of this appeal while Onyekwelu Esq. adopted the Respondents’ brief filed on the 13th December, 2018 as the arguments of the Respondents in contesting the appeal.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
Each of the parties distilled three issues from the grounds of appeal addressing the same substance but differing only semantically. The issues of the Appellant are as follows:
(a) Whether there is contract between the Appellant and the Respondents and whether the said contract was breached.
(b) Whether the Appellant trespassed on the property in dispute.
(c) Whether it is perverse and miscarriage of justice to award injunctive relief, general damage and cost against the Appellant without cogent and relevant evidence adduced at trial to substantiate such reliefs and putting into consideration that the Respondents have not refunded the Appellant’s money in the sum of N2,300.000.00 being the sum for the purchase of the property in dispute.
On the other hand, the issues of the Respondents were formulated thus:
(1) Whether the learned trial Judge was right in holding that there was no contract of sale of land between the Appellant and the Respondents, having regard to the circumstances of the vending transaction between them.
(2) Was the learned trial Judge right in holding that the Appellant’s stay on the plots in dispute constituted trespass to warrant award of damages and injunction against the Appellant.
(3) Were the damages and cost awarded against the Appellant reasonable and justified.
I have earlier observed that the subject-matters of the two sets of issues are the same, I shall adopt the version put forward by the Appellant and attend to them seriatim.
On the first issue, Echetebu Esq. submitted that parties are bound by the contracts voluntarily entered into by them and that Courts would not allow them depart from it. The learned counsel referred to FGN VS ZEBRA ENERGY LTD (2002) 3 NWLR (PT 754) 471 at 491.
The learned counsel proceeded to review the facts of the case and submitted that the parties had a valid contract which none of them should be permitted to depart from. He then argued that the Respondents breached their agreement with the Appellant by reducing the size of the land and subsequently selling it off without refunding the consideration furnished by the Appellant. He referred to JERIC (NIG) LTD VS UNION BANK NIGERIA PLC (2000) 15 NWLR (PT 691) 447 at 462-463.
Echetebu Esq. argued that while exhibit 2 had the correct plot size paid for by the Appellant, exhibit 6 which the learned trial Judge relied on was not signed and was thereby worthless which rendered the decision of the trial Court perverse. He referred to THE ATTORNEY GENERAL OF ABIA STATE & ORS VS SILAS O. AGHARANYA & ORS (1999) 6 NWLR (PT 607) 362 at 371.
The learned counsel further pointed out that the said exhibit 6 was unreliable as it bore contradictory information and that in arriving at its decision, the trial Court took extraneous issues into consideration. He referred toINCAR LTD VS ADEGBOYE (1985) 2 NWLR (PT 8) 453 and M.I.S.R VS IBRAHIM (1975) 5 SC 55.
The learned counsel for the Appellant rounded off on this issue by referring to various exhibits admitted during the trial and urged the Court to hold that the parties had a contract which was breached by the Respondents.
Onyekwelu Esq. on his part reviewed the facts of the case and submitted that the trial Court was right that there was no binding contract in existence between the parties notwithstanding the content of exhibit 9.
The contention of the parties here dovetails into a consideration of whether there was a valid contract for sale of land in existence between them which the Court could enforce. Where parties have failed to reduce the terms of their contract into writing the Court would be left to examine the circumstances of their transaction to see if the elements of a valid contract could be deduced. These basic elements are that there was an offer which was unconditionally accepted, consideration must have passed between them and the parties who must have capacity to contract must have the intention to create a legal relationship between them in the said transaction. The parties must be consensus ad idem on the terms of the agreement between them without leaving any vital term unsettled. See ALFOTRIN LTD VS. AG FED & ANOR (1996) LPELR-414 (SC), ABBA VS. SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED (2013) LPELR-20338(SC), OMEGA BANK (NIG) PLC VS. O.B.C. LTD (2005) LPELR-2636 (SC), PRESIDENTIAL IMPLEMENTATION COMMITTEE ON FEDERAL GOVERNMENT LANDED PROPERTIES VS. AYWILA & ANOR (2017) LPELR-43204(CA) and AGOMA VS. GUINNESS (NIG) LTD (1995) LPELR-251(SC). In ALFOTRIN LTD V. AG FED & ANOR (supra) IGHU, JSC stated the position of the law at pages 29-30 thus:
To constitute a binding contract, there must be an agreement in that the parties must be in consensus ad idem with regard to the essential terms and conditions thereof; the parties must intend to create legal relations and the promise of each party, in a simple contract, not under seal, must be supported by consideration. There must be a concluded bargain which has settled all essential conditions that are necessary to be settled and leaves no vital term or condition unsettled. See May and Butcher Ltd. v. R. (1934) 2 K.B. 17. It is a question of fact whether the parties have agreed on the essential elements of a contract. See Scammel and Nephew Ltd. v. Guston (1941) A.C. 251 and D’Silva v. Lister House Development (1971) Ch. 17. If the terms are unsettled, uncertain or vague that they cannot be ascertained with reasonable degree of certainty, there will be no valid contract enforceable at law unless the uncertain part of the contract is unsubstantial and can be separated from the vital parts thereof. See Harvey v. Pratt (1965) 1WLR 1025, Kingsley and Keith Ltd. v. Glynn Bros. (Chemicals) Ltd. (1953) 1 Lloyd’s Rep. 211 and Bishop and Baxter Ltd. v. Anglo-Eastern Trading and Industrial Co. Ltd. (1944) K.B. 12 CA.
It is instructive that the transaction here was not just a simple commercial contract but one for sale of land. The law has remained well settled to the effect that for there to be a validly binding contract for the sale of land or property, there must be 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. SeeMINI LODGE LTD & ANOR VS. CHIEF OLUKA OLAKA NGEI & ANOR (2009) 18 NWLR (PT. 1173) 254, SPERA IN DEO LTD VS. PECCUNO MINERAL INDUSTRY (NIG) LTD & ANOR (2016) LPELR-41044 (CA), GEGE VS. NANDE (2006) 10 NWLR (PT. 988) 256 AT 284 285, BIYO VS.AKU (1996) 1 NWLR (PT. 422) 1 and CHABASAYA VS. ANWASI (2010) LPELR-839 (SC).
From the pleadings, evidence and arguments canvassed by the Appellant at the trial Court and before us, it was never contended that he was put in possession of any portion of the entire land of the Respondents by the Respondents apart from what he was shown on the layout. Parties are bound by their pleadings. See AKPAPUNA & ORS. VS. NZEKA & ORS. (1983) LPELR-384 (SC). The averment of the Appellant was that as at the time he paid a deposit, the plots of land were yet to be delineated.
While the case of the Appellant is heavy on the sums of money he paid to the Respondents, he is totally off on being let into possession of the piece of land involved in the transaction. None of the two witnesses called by the Appellant at the trial witnessed the transaction. The Respondents however, were strident on the inconclusiveness of their transaction and how they were unable to agree on the dimension of the initial plot in which the Appellant showed interest prior to actual physical delineation. The additional payment subsequently made unilaterally by the Appellant further demonstrated the gap in the positions of the two parties.
It seems quite evident that the parties here were not ad idem on vital parts of the transaction in issue. They therefore had no contract that could be enforced between them and I cannot fault the finding of the trial Court in this regard.
I therefore resolve this issue against the Appellant and in favour of the Respondents.
On the second issue, Echetebu Esq. argued that the Appellant had equitable rights to the land in dispute and could not be held liable for trespass in respect thereto. The learned counsel further argued that it was not contested that Appellant paid a total sum of Two Million, Three Hundred Thousand Naira to the Respondents for land in respect of which the Respondents failed to give him title documents and that without refunding his deposit they sold the land involved to some other persons.
In response, Onyekwelu Esq. argued that the Appellant forced himself into possession of the Respondent’s land and was in unlawful possession which constitutes trespass as rightly held by the trial Court. He submitted that possession is ascribed to the party with better title to land and referred to AMAKOR VS OBIEFUNA (1974) 3 SC 67 or (1974) 1 ALL NLR (PT 1) 119 and UMESIE VS ONUAGULUCHI (1995) 12 SCNJ 120 at 140.
Trespass is wrongful interference with possession. See OLANIYAN VS FATOKI (2003) 13 NWLR (PT 837) 273 at 286, OYEBAMIJI VS FABIYI (2003) 12 NWLR (PT 834) 271 at 302, OYEWUSI & ORS VS. OLAGBAMI & ORS (2018) LPELR-44906 (SC) and DOKUBO & ANOR VS. OMONI & ORS (1999) LPELR-957 (SC). As earlier pointed out, the Appellant who is not contesting the overriding ownership of the Respondents from who he was purchasing, did not plead or lead evidence of his being let into possession by the Respondents. Any act of possession by him was achieved vi et armis and amounts to trespass. See OYEWUSI & ORS VS. OLAGBAMI & ORS (supra). Appellant cannot achieve legitimate possession through trespass. See DAKAT VS. DASHE (1997) LPELR-914(SC), ABOYEJI VS. MOMOH & ORS (1994) LPELR-46 (SC) and OMIYALE VS. MACAULAY & ORS (2009) LPELR-2640 (SC).
As earlier pointed out, payment of money is not all there is to a contract for sale of land or property especially with all the other vital aspects of the transaction unsettled. See MINI LODGE LTD & ANOR VS. CHIEF OLUKA OLAKA NGEI & ANOR (supra).
I therefore resolve this issue as well against the Appellant and in favour of the Respondents.
On the remaining issue, Echetebu Esq. argued that it was speculative and presumptive of the trial Court to have granted injunctive relief and damages against the Appellant based on the facts of this case.
In response, Onyekwelu Esq. contended that the position of his colleague was unmeritorious as the injunctive relief and award of damages were not in contravention of extant principles of law.
Trespass is actionable per se. See ECHERE & ORS VS. EZIRIKE & ORS (2006) LPELR-1000(SC) and AKINTERINWA & ANOR V. OLADUNJOYE (2000) LPELR-358 (SC). Having found that the Appellant was rightly found liable for trespass, consequential orders must necessarily follow. In this case, the trial Court did not violate extant principles guiding the award of damages. There is therefore no basis to interfere with the orders made by the trial Court.
I therefore resolve this issue as well against the Appellant and in favour of the Respondents.
I must point out that in the face of the failure of the Appellant to make a counter-claim for refund of his deposit, there was no basis for the trial Court to have granted any relief in respect thereof.
In totality therefore, I find no merit in this appeal and I accordingly dismiss it. The judgment of the trial Court is hereby affirmed.
Cost of N100,000.00 is awarded against the Appellant and in favour of the Respondents.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read the draft of the judgment delivered by my learned brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA. I agree with his reasoning and conclusion that the appeal has no merit and is hereby dismissed.
ABUBAKAR SADIQ UMAR, J.C.A.: I had the advantage of reading in draft, the judgment just delivered by my learned brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA, and I agree with the reasoning and conclusion reached therein.
The appeal being unmeritorious should be dismissed, and is hereby dismissed by me.
I also affirm the decision of the trial Court. I abide by the consequential order regarding cost, as made in the lead judgment.
Appearances:
C. Echetebu, Esq. For Appellant(s)
Mr. B. Onyekwelu For Respondent(s)
