ALHAJI HUSSAINI MOHAMMED MUSTAPHA V. USMAN ABUBAKAR & ANOR (2010)

ALHAJI HUSSAINI MOHAMMED MUSTAPHA V. USMAN ABUBAKAR & ANOR

(2010)LCN/3883(CA)

In The Court of Appeal of Nigeria

On Thursday, the 17th day of June, 2010

CA/K/211/07

RATIO

LAND SALE; WHETHER EVIDENCE IN WRITING IS A PREREQUISITE FOR SALE OF LAND UNDER TRADITIONAL LAWS

EQUITABLE REMEDY: CONDITIONS THAT MUST BE SATISFIED BEFORE A DECREE OF SPECIFIC PERFORMANCE CAN BE MADE IN FAVOUR OF A PLAINTIFF

However, it should be noted that a plaintiff must come to equity with clean hands, in that, before specific performance can be decreed in his favour, he must show that he has performed all his own obligations under the contract, or has tendered performance, or is ready and willing to perform. For instance, a person holding under an agreement for a lease is not entitled to a decree of specific performance of the lease if he is himself in breach of one of its covenants. It must, also, be emphasized that specific performance is confined to the enforcement of positive contractual obligations. These obligations must be binding on the defendant. The position of the law is that, if a purchaser fails to complete payment of the purchase price, the vendor can treat that as a repudiation, and, claim damages for breach of contract, or he may seek specific performance. Further, it should be noted that there are situations in which the discretion of the Court is unlikely to be exercised in favour of a decree of specific performance, although the contract is of a type to which the remedy is appropriate. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.

WHETHER SPECIFIC PERFORMANCE CAN BE DECREED WHERE THE PLAINTIFF WOULD BE COMPENSATED FOR DAMAGES

it is a fundamental rule that specific performance will not be decreed where the plaintiff would be compensated by the common law remedy of damages. See Afrotech Tech. Services (Nigeria) Limited vs. M.I.A & Sons Ltd & Anor. (supra). PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.

RULES OF COURT: EFFECT OF FAILURE TO COMPLY WITH RULES OF COURT

It is trite law that “Rules of Court are meant to be complied with, therefore, any party or Counsel seeking that the discretionary power of Court be exercised in his favour must bring his case within the provisions of the Rules. If the party or Counsel fails to discharge his duties in that respect, it is, but, fair and right that a Court should refuse to exercise its discretionary power. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.

RULES OF COURT: ESSENCE OF RULES OF COURT
Rules of Court are made to be followed. They regulate matters in Court and help parties to present their cases within a procedure made for the purpose of a fair and quick trial. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.

JUSTICES

BABA ALKALI BAABA. (OFR) Justice of The Court of Appeal of Nigeria

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

Between

ALHAJI HUSSAINI MOHAMMED MUSTAPHA Appellant(s)

AND

1. USMAN ABUBAKAR
2. MRS. MONICA UCHE EZEABA Respondent(s)

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): By the Notice of Appeal filed by the Appellant on the 27th February, 2007, which was predicated on seven grounds of appeal, the Appellant seeks firstly; for an order setting aside the judgment of the High Court of Kaduna State delivered on the 30th January, 2007 in Suit No, KDH/KAD/289/2000 between the parties, and, secondly, for an order granting the claims of the Appellant and lastly, for an order dismissing the counter- claim of the 2nd Respondent.
The facts leading to this appeal as distinctly set out on the record are, that on the 24th February, 1998, the Appellant and the 1st Respondent entered into an agreement for the sale of the 1st Respondent’s house at No. A.K 12 Faki Road, Tudun Wada, Kaduna to the Appellant at the agreed purchase price of N600,000. The Appellant made a part payment of the sum of N350,000 to the 1st Respondent on the aforementioned date, and, then undertook to pay the balance of N250,000 on the 16th March, 1998. There was an alleged breach of the said contract along the line, which then, necessitated the said house being resold by the 1st Respondent to the 2nd Respondent on the 19th March, 1998. Being irked by what he perceived as the 1st Respondent’s renege on the contract, the Appellant, immediately initiated a civil proceeding against the Respondents. Then, by his Amended Statement of Claim filed on the 26th May, 2003, at the trial Court, the Appellant, claimed thus:
“WHEREOF the Plaintiff claims from the defendants jointly and/or severally as follows:
(a). An order of specific performance compelling the 1st Defendant to receive the sum of N250,000 (Two hundred and fifty thousand Naira) from the Plaintiff being the balance of the purchase price of the house situate and know as No. AK 12 Faki Road, Tudun Wada, Kaduna, as contained in the agreement dated 24/2/98.
(b). An order setting aside as null and void the purported sale of No. 12 A.K Faki Road, Tudun Wada, Kaduna by the first Defendant to the second Defendant after the agreement dated 24/2/98 between the Plaintiff and the first Defendant.
(c). An order directing the second Defendant to vacate the property situate at and known as No. AK. 12 Faki Road, Tudun Wada, Kaduna, forthwith.
(d). An order directing the first Defendant to put the Plaintiff into possession of the property aforesaid.
(e). Cost of this action”
ALTERNATIVELY
The Plaintiff in the alternative, claims against the first Defendant as follows:
1. The refund of the sum of N350,000.00 (Three hundred and fifty thousand Naira) being money
had and received as deposit for the purchase of house situate at and known as AK. 12 Faki Road,
Tudun Wada, Kaduna.
2. The sum of N500.000.00 (Five hundred thousand Naira) being the general damages for breach
of contract and losses sustained by the Plaintiff as a result of the first Defendant’s refusal to honour the contract terms.
3. Cost of this action”
However, in the 2nd Defendant’s pleading titled, “2nd Defendant’s Amended Statement of Defence”, she stated as follows:
“WHEREOF the 2nd Defendant denies the Plaintiff’s claim as constituted and shall at the hearing urge the Honourable Court to dismiss same with substantial cost and to hold and declare the 2nd Defendant as the rightful owner of the property being a bona fide purchaser for value without notice of any previous sale”.
The 1st Defendant, also, filed his Statement of Defence.
In the bid to prove the assertions in his Amended Statement of Claim, the Appellant called three witnesses, including himself who testified as P.W.3.
Then, in rebuttal, and in trying to establish what was seemingly couched as a counter-claim by the 2nd Defendant, the Defendants, i.e. the Respondents herein, personally, presented their evidence as D.W.1. and D.W.3. respectively, and, then called another witness as D.W.2. The trial Court, in the judgment delivered at the conclusion of the hearing and addresses of Counsel, dismissed the main claims of the Plaintiff, and, awarded the first relief in the alternative claim, that is to say, the refund of the said sum of N350,000 paid by the Appellant to the 1st Respondent as part payment for the purchase of the said house. The trial Court further expressed that the 1st Defendant passed a valid title to the 2nd Defendant by their agreement of 19th March, 1998, and, that the 2nd Defendant is a bona fide purchaser for value without notice.
It was following the afore-stated findings of the trial Court that the Appellant lodged the present appeal, and in compliance with the Rules of this Court, the parties filed their respective Brief of Argument. The issues propositioned by the Appellant for determination of this Court are as follows:
“1. Whether title in the house had passed to the Appellant.
2. Whether having regard to the state of pleadings as well as the evidence adduced, the Appellant is entitled to have made, in his favour, a decree of specific performance.
3. Whether the 2nd Respondent acquired any valid title in the property”
In response, the 1st Respondent filed his Brief of Argument and therein raised two issues for consideration. They are:
“1. Whether the Appellant have (sic) complied with the terms of the agreement dated 24/2/98 to entitle him to an order of specific performance.
2. Whether the 1st Respondent rightly exercised his right to rescind the agreement and transfer title to the 2nd Respondent.”
The 2nd Respondent in the Brief of Argument filed on her behalf by her Counsel, Imhanbe Osagie Esq; propounded three issues for the determination of this Court. They are:
“1. Whether the Appellant is validly entitled to the grant of an order for specific performance considering that he has breached the Agreement of 24th February, 1998?
2. Whether the 1st Respondent was justified in repudiating the agreement of 24th February 1998, following the Appellant’s breach of the said Agreement?
3. Whether the contract of 19th March, 1998 passed valid title to the 2nd Respondent?”
The Appellant further filed his Reply Brief to the Brief of Argument filed by the 1st and 2nd Respondents respectively.
It was contended on behalf of the Appellant in respect of his first issue that by Exhibit P1 being the agreement executed between the Appellant and the 1st Respondent, the contract of sale of the said land was concluded between the parties on 24/2/98, and, that by the agreement, the Appellant made a part payment of the said purchase price of N600,000 in the sum of N350,000.00 to the 1st Respondent, then leaving the balance of N250,000 to be liquidated on or before the 16th March, 1998.
In support of the assertions, Learned Counsel, for the Appellant, Simon Y. Arabo, Esq; placed heavy reliance on the principle entrenched in the cases of Biyo vs. Aku (1996) 1 N.W.L.R. Part 422 page 1 at 38 para. G, per Ayoola J.C.A.,(as he then was) and Okezie J.C.A. at page 25 para. C, and, the case of Edosa vs. Zaccala (2006) ALL F.W.L.R. Part 306 page 881 at 899 para. B-D, and 910 para. D-E, where it was held that 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 nature of the interest to be granted. Learned Counsel further stressed that where part payment had been made, the contract for purchase has been concluded and is final, leaving the payment of the balance of the purchase price outstanding. He then argued that since the contract had been concluded, the Appellant acquired title to the property and that the learned trial Judge was in error in holding that non-payment or late payment of the balance vitiated the contract. Counsel, thereafter, urged that issue No. 1 be answered in the affirmative.
On issue No. 2, Counsel further relied on the submissions he made in respect of issue No.1. He referred to the evidence of P.W.1. on the efforts made by the Appellant to pay the balance, but, the 1st Respondent could not be located, and, even when seen after the 16th March 1998, he refused to collect the said balance of the purchase price from the Appellant. He stated that the facts were pleaded and evidence was given thereon, but, the same was unchallenged and uncontradicted during cross-examination. He referred to the evidence of the 1st and 2nd Respondents, and stressed that the 2nd Respondent was not straight on the facts. He, also, made reference to the evidence of P.W.2., and, the case of Gaji vs. Paye (2003) 5 SCNJ page 20 at 37 lines 21-34, per D.O. Edozie, J.S.C, and contended that it was erroneous for the trial Court not to have ordered specific performance compelling the 1st Respondent to accept the said balance of N250,000 from the Appellant, as it was a contract pertaining to land. He then stressed that the Appellant is entitled to have an order for specific performance made in his favour.
Submitting in respect of issue No. 3, learned Counsel stated that since the contract between the Appellant and the 1st Respondent was concluded on 24/2/98, and, he had acquired title to the house, the 1st Respondent had no title to transfer to the 2nd Respondent, therefore, it was an error for the trial Court to have held that the 1st Respondent had transferred valid title to the 2nd Respondent. He emphasized that the Deed of Assignment dated 19/3/98 and executed between the 1st Respondent and 2nd Respondent was not registered, being an instrument. Counsel referred to sections 2 and 15 of the Kaduna State Lands Registration Law (Cap. 85), Laws of Kaduna State 1991 and the cases of Ibrahim vs. Osunde (2003) 2 N.W.L.R. Part 804, page 241 at 261-262 para. G, Shittu vs. Fasawe (2005) 7 SCNJ page 337 at 352 – 353, Alao vs. Akano) (2005) 11 N.W.L.R. Part 935 page 160 at 175 and Ogbimi vs. Niger Construction Ltd (2006) 9 N.W.L.R. Part 986 page 474 at 493-494 para. G-A, and contended that the said document was legally inadmissible and, therefore, ought to be expunged from the record. He further contended that it was impossible for the 1st Respondent to transfer title to the 2nd Respondent on the strength of the said document, (Exhibit D2). Counsel further stated that the issue, whether the 2nd Respondent was a bona fide purchaser for value did not even arise. He said there was an evidence of collusion between the Respondents in the attempt to overreach the Appellant. He then urged this Court to allow the appeal.
Godwin Ochai Esq; learned Counsel for the 1st Respondent, stated in respect of the first issue formulated in the 1st Respondent’s Brief of Argument, that it is clear from the record that the Appellant failed to pay the said balance on the agreed date which is a fundamental condition for the agreement. He emphasized that the said agreement entered into by them was made subject to the Appellant paying the balance on or before the agreed date. Therefore, failure on the part of the Appellant to pay the said balance on the agreed date is a breach of a fundamental term, as time was of the essence of the contract, and, too, did not entitle him to the equitable remedy of specific performance. He relied on Ezenwa vs. Ekong (1999) 11 N.W.L.R. Part 625 page 73 -74 paras. H-B and Universal Insurance Company Ltd vs. Hammond Nig. Ltd (1998) 9 N.W.L.R. Part 565 page 340 at 366 paras. C-F, where it was respectively held that a person seeking to enforce his right under a contractual agreement must show that he has fulfilled all the conditions precedent and that he has performed all those terms which ought to have been performed by him. Further, the Court will not order specific performance of a contract when the claimant for the order has been guilty of delay in performing his own part of the contract where; (a) time is of the essence of the contract; or (b) originally time was not of the essence of the contract but was subsequently made so by an express or implied agreement between the parties; or (c) the delay by the Plaintiff was such as may be regarded as evidence of abandonment of the contract between the parties.
Further, the Court will not grant an order of specific performance where a party can be adequately compensated in damages. Counsel further referred to Afrotec Technical Services vs. Mia & Sons Ltd (2000) 12 SC (Part 11) at 41/42 and urged that the first issue be answered in the negative.
Dealing with his issue No 2, learned Counsel for the 1st Respondent hinged his argument on the principle of law stated in the case of Dantata vs. Mohammed (2000) 7 N.W.L.R. Part 664 page 176 at 199. He pointedly argued that the 1st Respondent, having rescinded the contract, no longer owe the Appellant any obligation, and, thus, rightly transferred his title to the 2nd Respondent. Counsel reiterated his argument that failure by the Appellant to pay the said balance of N250,000 to the 1st Respondent was a fundamental breach. He further relied on the decision in Oceanic Bank Nig. Ltd vs. Chitex Ind. Ltd (2000) 6 N.W.L.R. Part 661 page 464 at 477, in which it was stated that breach of fundamental term occurs in contract when a party fails to carry out the contract in its essential respect. Such a breach goes to the root of the contract and a party in breach cannot be allowed to rely upon it. Consequently, Learned Counsel persuaded this Court to resolve issue No. 2 in favour of the 1st Respondent.
Then, Learned Counsel for the 2nd Respondent on the first issue formulated in the 2nd Respondent’s Brief, repeated the contention that the Appellant had breached the agreement of 24th February, 1998 and, as such, the equitable principle of specific performance does not enure to a party as of right. For this proposition, he gripped on the cases of Help Nigeria Ltd vs. Silver Anchor Nigeria Limited (2006) 2 SCNJ page 178 at 183, Gaji vs. Paye (2003) 18 MJ.S.C. page 76 at 93 para. D, Okoye vs Chief Lands Officer (2005) 4 SCNJ page 158 at 188, Lagos State Development and Property Corporation and 1 or vs. Nigeria Land and Seafoods Ltd (1992) 5 N.W.L.R. Part 244 page 653 and 671 para. B, and, Aigbobahi vs. Aifuwa (2006) 2 SCNJ page 61 at 70. He stressed that the original character of the property has changed, and, because of that, it would be inequitable to grant the Appellant an order of specific performance in the case. He urged that issue No.1 be answered in the affirmative.
In respect of issue No. 2, Learned Counsel stated that once a condition precedent is incorporated into an agreement, that condition must be satisfied before the contract can be enforceable. He cited Tsokwa Oil Co. vs. Bank of the North (2002) 5 SCNJ Page 176 at 201-202 in support. He argued that the evidence given by P.W.1, P. W.2 and P.W.3 on the effort made by the Appellant to complete the payment of the said balance of N250.000 to the 1st Respondent was inconsistent and at variance with the facts pleaded in the Statement of Claim, and, on the strength of the decision in Ademeso vs. Okoro (2005) 6 SCNJ page 71 at 80 lines 1-9, the evidence ought to be disregarded.
On issue No. 3, Counsel argued that the 2nd Respondent was a bona fide purchaser for value without notice of a previous sale and that Exhibit D2 passed valid title to the 2n Respondent. He urged this Court to resolve this issue in favour of the Respondents.
The Appellant, in his Reply Brief with respect to the 1st and 2nd Respondents’ respective Briefs of Argument, submitted that the cases cited in the 1st Respondent’s Brief were inapplicable since the present case relates to contract of sale of land and has nothing to do with any lease or sub-lease agreement. He stressed that there was no breach of the contract in question by the Appellant. Further, learned Counsel referred to the case of Ohiaeri vs. Yussuf (2009) 2 S.C.N.J page 318 at 329 – 330 where emphasis was largely made on the issue of payment of the agreed full or part of the purchase price coupled with possession by the purchaser, including constructive possession which needs to be present before an order for specific performance could be made in matters relating to contract of sale of land.
I have thoroughly examined the various issues distilled by the parties in their respective Brief of Argument, and all the legal arguments of Counsel and decided authorities cited by them, and, I think it appropriate to determine this appeal in line with the issues raised by the Appellant in his Brief.
The facts of this case had been amply demonstrated in the pleadings filed by the Appellant and the 1st Respondent, in particular, and the evidence proffered by them at the trial Court. The terms of the contract between the Appellant and the 1st Respondent incorporated in the hand-written document entitled “Agreement between Usman Abubakar and Alhaji Hussaini Mohammed Mustapha” dated 24/2/98 and authenticated by them on the said 24/2/1998, which was tendered and admitted in evidence before the trial Court as Exhibit P1.
It is interesting to observe that even though the said house, the subject matter in this appeal, was unequivocally stated to have been sold by the 1st Respondent to the Appellant in Exhibit P1, it is clear as crystal on the said Exhibit, that the balance of the said purchase price was to be completely paid by the Appellant on the 16th March, 1998. Also, it was clearly borne out in the pleadings of the parties and the evidence adduced by them at the trial Court, that the 1st Respondent did not put the Appellant into possession of the said house in dispute after the part payment of the purchase price. Furthermore, it is clear on the face of Exhibit P1 that it was not registered as an instrument.
I must reiterate that complete payment of the purchase price was fixed by the parties to be on the 16th March, 1998, thereby making the said date of 16/3/98 a very essential date in the contract between the parties. What it presupposes is that, the parties had in essence, agreed for the sale of the 1st Respondent’s house to the Appellant, but, the sale shall not be completed until the Appellant had fully paid the purchase price.
I would now turn to the first issue raised in the Appellant’s Brief, that it is to say, “whether title in the house had passed to the Appellant.”
It is a common knowledge that for there to be a transfer of title in a land under the received English law from a vendor to a purchaser for value, two stages must be hurdled over by the parties. The first stage is commonly known as, ‘the contract stage’ beginning with negotiation of the terms of agreement on the same, the purchase price of the land, and, reduction of the said agreement to writing. The 2nd stage is, the conveyance stage’ culminating in the legal title vesting in the purchaser by means of the appropriate instrument under seal.

It must, however, be pointed out that it is not a prerequisite under the traditional laws, that sale of land shall be evidenced in writing. It suffices that the purchase price of the land is paid by the purchaser, and the purchaser must be let into possession by the vendor in the presence of witnesses. There is no need to stress that neither in the Amended Statement of Claim nor in the evidence placed before the lower Court, was it revealed that the property in question was sold to the Appellant under any traditional law. Whatever be the case, it is imperative to emphasize that the said contract of sale cannot qualify as a sale under the native law since the Appellant was not, and, has not been put into possession of the said property by the 1st Respondent in the presence of any witnesses.
However, I would not claim to be oblivious of the decision of the Supreme Court in Ohiaeri vs. Yussuf (2009) 6 N.W.L.R Part 1137 page 207 at 224 per Tabai, J.S.C that where there is an agreement for sale of land either under native law and custom or any other mode of sale and for which the purchaser, acting within the terms of the agreement, makes full or part payment of the purchase price to the vendor and is in furtherance thereof put in possession, he has acquired an equitable interest in the property and which interest ranks as high as a legal estate and cannot therefore be overridden by a subsequent legal estate created by the same vendor or his legal representative in favour of another person.
In the afore-stated case, the excerpt from the Supreme Court judgment in Ayinla vs. Sijuwola (1984) NSCC 301 at 312 per Nnamani, J.S.C was quoted, and, it reads:
“…if a party received title to land under native law and custom and entered into possession and the same vendor conveyed the land to another purchaser executing a deed of conveyance, a claim that the first party’s equitable interest was cut off by the latter bona fide purchaser would not be upheld. See Amao v. Adebona (1962) LLR 125. Further, if there is proof that money was paid for land coupled with an entry into possession, it is sufficient to defeat the title of a subsequent purchaser of the legal estate if the possession is continuously maintained. See T.A Oransanmi v. M.O. Idowu (1959) 4 FSC 40. More close to the contention herein is the decision in Soremekun vs. Shodipo (1959) LLR 30 to the effect that if land is sold to a party without executing a formal deed of conveyance his interest was no more than equitable. Legal estate of the other party would be preferred to it if the party with the equitable interest is not in possession. All these cases appear to lay emphasis on possession. Even if it was an equitable interest, if it is coupled with possession it cannot be overridden by a legal estate. This principle accords with the decision of the Privy Council in Oshodi vs. Balogun & Ors 4 WACA 1 at page 6 and Suleiman & Ors vs. Johnson 13 WACA 213. Whether land is sold under native law and custom or merely sold but without executing a formal deed, it seems to me that if the purchaser is in possession for a long time the equitable interest thus created cannot be superseded by a subsequent legal estate. In effect it matures into a legal estate…”
It is clear in Ohiaeri vs. Yussuf (supra) and Ayinla vs. Sijuwola (supra) that the purchaser being put or let into possession of the property, after full payment or part payment of the purchase price of the property was made by him or her, is paramount. So, the major determinant of the type of equitable interest acquired by a purchaser over the land is; ‘whether he has been put into possession of the property by the vendor’. He must be put into possession by the vendor for the equitable interest he had acquired in the property to rank as high as a legal estate. In the instant appeal, there is clear manifestation on the record before this Court that no evidence whatsoever was led at the lower Court alluding to the fact that immediately after part payment of the purchase price by the Appellant, he was put into possession of the said house by the 1st Respondent.
I have noted, with due respect, the persuasive and plausible argument of learned Counsel for the Appellant which he anchored in the principle stated in Biyo vs. Aku (supra) that a contract of sale exists where there is a final and complete agreement of the parties on essential terms of the contract; i.e. the parties to the contract, the property to be sold, the consideration for the sale and nature of the interest to be granted, but, I am afraid to state, that this cannot, by any rules of interpretation metamorphose Exhibit P1, a hand written, and, an unregistered document affecting interest in land, and, in respect of which no consent of the Governor of the State had previously been obtained, into a valid document or Deed that can transfer title of the said house to the Appellant or elevate the Appellant to the status of a legal owner of the said property.
This signifies that Exhibit P1 did not and cannot transfer title in the said house to the Appellant. A valid title is one having legal strength or force, the document conveying same must be executed with proper formalities, incapable of being rightfully overthrown or set aside. What seems apparent here is that the interest acquired by the Appellant over the land was an equitable interest and not a legal title. That is why, when parties go to Court for specific performance, they go after the first stage in sale of land that is, the agreement of sale. An equitable owner does not have an absolutely indefeasible title, because the equitable interest so acquired would be lost if the legal title came to a bona fide purchaser without notice.
On this footing, therefore, I am compelled to hold that the Appellant having not taken possession of the house in dispute, or owing to the failure to register the said Exhibit P1 evidencing the said contract of sale between the Appellant and 1st Respondent in accordance with section 15 of the Lands Registration Law of Kaduna State, (1991) and, too, failure to obtain the necessary consent of the Governor of the State for conveyance of the legal title in the house to the Appellant, no valid title, whatsoever, in the said House at No. A.K 12 Faki Road, Tudun Wada, Kaduna had passed onto or had been transferred or could have been transferred to the Appellant by the 1st Respondent. Accordingly, issue No. 1 is hereby answered in the negative.
Having identified the nature of interest acquired by the Appellant over the said property, it is now appropriate to determine the 2nd issue raised in the Appellant’s Brief, that is to say, “whether having regard to the state of pleadings as well as the evidence adduced, the Appellant is entitled to have made in his favour, a decree of specific performance.”
By a decree of specific performance, the Court orders a party to a contract to perform his contractual obligations. It is worthy to note that specific performance, like other equitable remedies, is only given as a matter of discretion, although the discretion must be exercised in accordance with settled principles.
Specific performance may be available where there is no remedy at all, as in the case of an oral contract for the sale of land, supported only by acts of part performance. But specific performance will not be available if, on the true construction of the contract, the parties have agreed that a specified sum of money is to be paid as an alternative to performing the contract. It has long been stated that each piece of land is unique, therefore, the law is that an award of damages is not adequate compensation for the purchaser.
However, it should be noted that a plaintiff must come to equity with clean hands, in that, before specific performance can be decreed in his favour, he must show that he has performed all his own obligations under the contract, or has tendered performance, or is ready and willing to perform. For instance, a person holding under an agreement for a lease is not entitled to a decree of specific performance of the lease if he is himself in breach of one of its covenants. It must, also, be emphasized that specific performance is confined to the enforcement of positive contractual obligations. These obligations must be binding on the defendant.
The position of the law is that, if a purchaser fails to complete payment of the purchase price, the vendor can treat that as a repudiation, and, claim damages for breach of contract, or he may seek specific performance. Further, it should be noted that there are situations in which the discretion of the Court is unlikely to be exercised in favour of a decree of specific performance, although the contract is of a type to which the remedy is appropriate.
It is trite that in the absence of a contrary intention, performance of the contract has to be carried out on the exact date specified in the contract, therefore, a party could treat the contract as repudiated if the other party’s performance was not completed on the fixed date, since time was “of the essence of the contract.” In effect timeous performance was condition precedent to enforcement of reciprocal of obligations.
As was articulated in the book titled “Mcgregor on Damages,” 17th Edition at 771 para. 22-003, that in a contract of sale of land, where the seller refuses to proceed with the contract in such circumstances as amount to a repudiation or discharging breach, several remedies are available to the buyer. The buyer may resort to the equitable remedy of specific performance, or he may treat the breach as discharging the contract, restore benefits received if any,-and recover back in an action of restitution, his deposit, any further part of the price he has paid, and the expenses properly incurred in the investigation of title. He may, also, sue for damages where the seller has no title to convey.
Similarly, where the buyer refuses to proceed with the contract in such circumstances as amount to a repudiation or discharging breach, the seller may resort to the equitable remedy of specific performance or he may treat the breach as discharging the contract, forfeit any deposit but restore any payments made on account of the purchase price, and proceed to deal with the property as he desires. The seller may also sue for damages.
Therefore, where the purchaser who has made a part payment of the purchase price is in default of payment of the balance, there is right in the vendor to rescind the contract of sale and re-sell the property. It is, therefore, the law that a person, who seeks to enforce his right under a contractual agreement, must show that he has fulfilled all the conditions precedent and that he has performed all those terms which ought to have been performed by him. So, a plaintiff in an action for specific performance of an agreement must fail if there is a default on his part to discharge his own obligations.
In the instant appeal, there is no doubt that the parties reduced the contract of sale of the said house to writing, but, the only snag in the contract as highlighted in Exhibit P1, is the stipulation that the balance of the purchase price in the sum of N250,000 was to be paid on or before 16th March, 1998. Now, the question that needs resolution is, “whether, though not specifically stipulated in the contract, the said appointed date of 16th March, 1998 was of the essence of the contract of sale of the house between the Appellant and 1st Respondent?”
At this juncture, I would draw strength from the decision in Lock vs. Bell (1931) 1 C-H 35, where it was considered whether in a contract such as sale of interest in land, time is of the essence of the contract.
It was held therein that since December 8 was a date essential to the contract, i.e. the date of completion of the purchase price, the sale agreement came to an end on that date, and, that the deposit paid had been forfeited. Also, in Rainer vs. Miles (1981) A-C 1050, it was held that there is a breach of contract at law and in equity if completion does not occur on the contractual date, even though time has not become of the essence.
Furthermore, in Hanbury and Maudsley, Modern Equity, 13th Edition 1989 at page 677, it was stated that failure to complete on the contractual date may, however, render the delaying party liable to damages for breach of contract. The fact that time is not of the essence in equity does not negative a breach of contract in such a case.
Further, it is a general principle of law that where the plaintiff in an action for specific performance has been guilty of delay in performing his own part of the agreement the delay may bar his claim to specific performance if either;
“(a) Time was in equity, of the essence of the agreement; or
(b) If although, originally, time was not of the essence of the contract it was subsequently made so by agreement implied or expressed; or
(c) If by his conduct the delay on the part of the plaintiff was such as may be regarded as evidence of abandonment of the contract or agreement.”
See the book entitled “Nigerian Commercial Law and Practice” Volume 1 by J. Olakunle Orojo page 104.
It is apparent in Exhibit P1 that the date of 16th March, 1998 was very material and essential to the said contract, a date specially scheduled for completion of payment of the purchase price, which impliedly, indicated that time was of the essence of the contract.
Now, the next question to be considered is, “whether the Appellant was or was not in breach of the contract regarding the date set down by the parties for completion of payment of the purchase price as to bar him from seeking the equitable remedy of specific performance or entitle him to the said order being sought?”
To properly comprehend the contentions of the parties in this regard, as to whether an attempt or attempts was/were made by the Appellant to complete the payment of the said balance of N250,000 on the 16th March, 1998 or so soon thereafter, recourse should be had to the pleadings of the parties and the evidence adduced by them at the trial Court.
The Appellant, at paragraphs 8, 9, 10 and 11 of his Amended Statement of Claim pleaded thus:
“8. The plaintiff in the presence of witnesses took the sum of N250.000 (two hundred and fifty thousand naira) to the first defendant on the 14-3-98 but he was not at home and they left a message to repeat the visit the following day being 15-3-98.
9. On the 15-3-98 the plaintiff together with witnesses went to the house of the first defendant but the first defendant was reported to be away.
10. The plaintiff with his witnesses repeated the visit on the 16-3-98 and 17-3-98 but the first defendant was not seen.
11. The first defendant was at last seen on the 19-3-98 and refused to take the balance, and, alleged breach of contract by the plaintiff to the plaintiffs surprise. The plaintiff aver that under Moslem law the first defendant cannot repudiate the agreement but can only call for the balance, even if it were true (which is not conceded) that the plaintiff breached the agreement.”
Then, in his evidence before the trial Court, the Appellant, who testified as P.W.3 stated inter alia as follows:
“I can not remember the date I gave the balance. But the money was taken on 16/03. I was not part of those that took the money on that date. The 1st Defendant refused to collect the balance. I do not know who is in that property now.”
To further buttress his claim, the Appellant called the former Village Head of Sabon Gari, Ya’u Isa Suleiman as P.W.1, who stated in his evidence in chief that:
“On the date the balance was to be made, the money was taken between 6.00 and 7.00pm to the 1st Defendant. The 1st Defendant was not seen. The following day around 7.00pm, the visit was repeated. That was 17/30. They came back to my house with the money. The 1st Defendant later came to my house. He said he retracted from the agreement because the plaintiff has failed to fulfill his part of the bargain. The 1st Defendant did not come to my house in company of the plaintiff and an auctioneer to say that he was refunding the deposit paid by the plaintiff.”
However, under cross-examination, P.W.1 said:
“I did not escort them to pay the balance.”
The Appellant’s witness No. 2, Alhaji Sani Ibrahim, told the trial Court amongst other things as follows:
“He promised to pay the balance in 3 weeks. On the date the 3 weeks would expire, we went to the 1st Defendant’s house with the balance. We did not see him. We repeated the call on the 17-03. The next day early morning. He asked us to go to the District Head’s Office and would meet us there. He met us there at 1:00pm.
He said he was no longer in the agreement. The Plaintiff insisted that he wanted the house.”
I must observe, with due respect, that the evidence given by the Appellant and his witnesses was at variance with the averments made by him at paragraphs 8, 9, 10 and 11 of his Amended Statement of Claim. At the said paragraphs, the Appellant categorically stated that he personally took the said balance of N250,000 to the 1st Respondent on 14 /3/98 in the presence of witnesses, but did not meet the 1st Respondent. He repeated the visit with his witnesses on 15/3/98, 16/3/98 and 17/3/98 respectively but did not see the 1st Respondent. It was only on 19/3/98 that he saw the 1st Respondent, but, he refused to collect the said balance. The 1st Respondent, then, alleged that he, the Appellant, was in breach of the contract. There is a glaring inconsistency between the Appellant’s averments in which he claimed to have personally gone to the house of the 1st Respondent with his witnesses on 14/3/98, 15/3/98, 16/3/98 and 17/3/98 to pay off the said balance, and, his viva voce evidence before the trial Court, where he said he was not part of those who took the money on that date.
I must, also, note that the evidence of P.W.1. and said balance was taken to the 1st Respondent on P.W.2 contradicted one another as to the time the 17/3/98, and, whether the Appellant and the 1st Respondent met in the house of P.W.1. on the said date. Whereas P.W.2 claimed that he went to the house of the 1st Respondent in the early morning of 17/03/98, P.W.1 stated that it was about 7.00 pm of 17/3/98 that the alleged visit was repeated.
It is clear in the proceedings that neither in the Amended Statement of Claim nor in the evidence of the then Village Head of Sabon Gari, Ya’u Isa Suleiman, who testified as P.W.1, and, the Appellant, who testified as P.W.3., was P.W.2, Alhaji Sani Ibrahim, identified or confirmed as the person engaged by the Appellant to take the said balance of N250,000 to the 1st Respondent to complete the payment of the purchase price of the house in dispute. Also, the Appellant did not state the names or name of the persons/person who took the balance to the 1st Respondent.
In fact the only person mentioned in the evidence of P.W.1 was one Alhaji Sani, Sarkin Di Lalia, a brother to the Appellant who, P.W.1. said, was one of those present when the deposit was paid. It is remarkable to note that P.W.2., in his cross-examination, said that he was not present on the date the said deposit of the sum of N350,000 was paid. He only witnessed the agreement.
There is no evidence before the trial Court in proof of the averments in the Appellant’s Amended Statement of Claim on his efforts to pay up the balance of the purchase price on the appointed date of 16/3/98. By the evidence of the Appellant, it is clear that since he did not personally go to the house of the 1st Respondent on the material date, there is no authoritative assertion or proof that the said balance was indeed taken to the 1st Respondent on the said 16th March, 1998 but, that he made himself unavailable.
It might be, the Appellant truly made the attempts as he alleged in his Amended Statement of Claim, but, I am sorry to observe that his case was, apparently, shoddily presented. Counsel must be reminded that, Courts base their decisions on empirical evidence, factual situations and factual account of events presented before them by the parties, and, not on imagined or undisclosed facts or on evidence unsupported by pleading. I must mention that Courts do not possess any magic wand or mystic to discern the hidden and un-presented facts inadvertently or unwisely tucked away in one corner of the plaintiff’s or defendant’s heart. The decisions of the Courts in civil matters, particularly, at the High Court, are shaped and guided only by the pleadings of the parties, the credible evidence adduced in line with the said pleadings and the applicable laws. In this appeal, I must say that the Appellant wholly failed to lead any evidence before the trial Court in proof of those pleaded facts. The evidence adduced is unsupported by his pleading. It is the law that an averment in the pleadings does not tantamount to evidence and can never be so construed. Any averment in the pleadings has to be proved by credible evidence.
There was not a shred of evidence placed before the trial Court to prove emphatically that the Appellant was not in default of completely performing his own part of the contract, ie, payment of the purchase price on 16/3/98, the date appointed by the parties in Exhibit P.1. as the completion date. As a result, the evidence proffered by him at the trial goes to no issue, and, it is hereby not countenanced. It is on this premise that I find myself unable to agree with the contentions of learned Counsel for the Appellant that the Appellant is entitled to an order of specific performance.
Besides failing to adduce credible evidence to prove his entitlement to an order of specific performance, the Appellant sued in the alternative for a refund of the part payment of the N350,000 he paid to the 1st Respondent. As was expatiated by Mcgregor on Damages (supra), in circumstances such as this, the purchaser may resort to the equitable remedy of specific performance, or he may treat the breach as discharging the contract, restore benefits received if any, and recover back in an action of restitution, his deposit, any further part of the price he has paid, etc.
So, by the Appellant claiming in the alternative, the refund of the part payment of the sum of N350,000 he paid to the 1st Respondent, he has shown that he would be adequately compensated in damages. At this juncture, I would refer to the Supreme Court case of Help (Nig) Ltd vs. Silver Anchor (Nig) Ltd (2006) 5 N.W.L.R. Part 972 page 196 on the issue of the alternative claim made by the Appellant at paragraph 1 of the Alternative reliefs, which the trial Court, awarded. The Supreme Court, per Katsina-Alu, J.S.C. (as he then was), at p.211, observed as follows:
“The plaintiff claimed in the alternative a refund of the part payment of N320,000, and both Courts below ordered the defendant to return the said sum to the plaintiff. The claim for the refund of the part payment in my view, negated the claim for an order of specific performance. By this singular act, the plaintiff in my considered opinion had jettisoned his claim for an order of specific performance. What the plaintiff, in effect, is saying is that if he could not successfully insist on the defendant performing his part of the contract, he would accept the repudiation and ask for damages. I am in agreement with the Court of Appeal that in the circumstances of this case, it was not in a position to aid the plaintiff. It was right when it refused to order specific performance. The plaintiff’s best bet was to fall back on the common law remedy of damages.
Now, to the issue of damages, it is a fundamental rule that specific performance will not be decreed where the plaintiff would be compensated by the common law remedy of damages. See Afrotech Tech. Services (Nigeria) Limited vs. M.I.A & Sons Ltd & Anor. (supra). It seems obvious to me that from the plaintiff’s amended claim it was aware of this position of the law. This is because it had an alternative claim in damages and the refund of the part payment of the sum of N320,000 with interest for the purchase of the parcel of land in question.”
By the above decision, it is clear that when a party makes a claim in the alternative, the belief is that he wants either of the reliefs sought, in which case when he is granted any of the reliefs it suffices for the purpose of satisfying his claim. It, therefore, seems clear that by the alternative claim for refund of the part payment of the said sum of N350,000, which the trial Court rightly ordered, the Appellant has been adequately compensated. Therefore, in the light of the circumstances enumerated above, issue No. 2 is hereby answered in the negative.
With regard to the third issue, whether the 2nd Respondent acquired any valid title in the property, it must be observed that Exhibit D2 which incorporated the ‘Property Sale Agreement’ between the 1st Respondent and 2nd Respondent has not been registered in the Land Registry of Kaduna State, and the consent of the Governor has, equally, not been obtained to enable the 1st Respondent convey a valid title to the 2nd Respondent, although, at paragraph 3 of her Amended Statement of Defence, the 2nd Defendant clearly indicated that she went into possession of the said property after sale of the same to her by the 1st Respondent. I must state that this is immaterial to the fundamental issue and the contentions between the Appellant and the 1st Respondent.
Again, it was not manifested in the 2nd Respondent’s Amended Statement of Defence if she actually had a counter-claim in the suit because of the form or manner, her Amended Statement of Defence was captioned and its paragraph 7 couched. By the provisions of the Kaduna State High Court Rules, any defendant who seeks to rely upon any facts as supporting a right of set-off or counter-claim shall state specifically on the statement of defence that he does so by way of set-off or counter-claim as the case maybe, and the particulars of such set-off or counter-claim shall be given. It was not shown that a counter-claim was filed in the said suit. In the 2nd Respondent’s Amended Statement of Defence, she did not specifically state that she was relying upon any facts therein by way of counter-claim. There was no heading in the said process captioned “Counter-Claim” as prescribed by the Rules of Court.
It is trite law that “Rules of Court are meant to be complied with, therefore, any party or Counsel seeking that the discretionary power of Court be exercised in his favour must bring his case within the provisions of the Rules. If the party or Counsel fails to discharge his duties in that respect, it is, but, fair and right that a Court should refuse to exercise its discretionary power. Rules of Court are made to be followed. They regulate matters in Court and help parties to present their cases within a procedure made for the purpose of a fair and quick trial.
Be that as it may, it is imperative to emphasize that, given the document tendered as Exhibit D2 which was neither registered nor have the consent of the Governor of Kaduna State shown to have been obtained for any transfer of valid title in the said house from the 1st Respondent to the 2nd Respondent, the only interest the 2nd Respondent seemed to have equally acquired over the property is equitable in nature. Although, by the decision in Ohiaeri vs. Yussuf (supra), since she had been in possession of the said property after allegedly paying the full purchase price for the same, her equitable interest which presumably ranks as high as a legal estate cannot be overridden by a subsequent legal estate created by the same 1st Respondent or his legal representative in favour of another. As earlier stated, it was not clear in the pleading of the 2nd Respondent what she invited the lower Court to do, whether she had a counter-claim and even paid the appropriate filing fee in that respect.
Be that as it may, this Court could not perceive any concrete evidence before the lower Court showing that the said balance of the purchase price agreed by the Appellant and the 1st Respondent was indeed taken to the 1st Respondent on 16/3/98 by any person including the Appellant. I must state with all certainty that no iota of evidence was led by the Appellant establishing the fact that he was not in breach of the contract between him and the 1st Respondent or that he was not in default of payment of the said balance on the date of 16/3/98, clearly specified by the parties in Exhibit P1 as the date of completion of payment of the purchase price of the house in question.
As a result of all the reasons given above, I am of the firm view that this appeal is unmeritorious and, therefore, ought to be dismissed. Furthermore, I do not share the view that a valid title was transferred to the 2nd Respondent from the 1st Respondent via Exhibit D2. Accordingly, this appeal is hereby dismissed. The judgment of the trial Court in suit No.KDH/KAD/289/2000 regarding the Appellant’s claims is hereby affirmed. There will be no order as to costs.

BABA ALKALI BA’ABA, J.C.A: I read in advance the lead judgment of my learned brother, Orji-Abadua, JCA just delivered and I agree with the reasoning and conclusion.
I also see no merit whatsoever in this appeal and I hereby dismiss it with no order as to costs.

JOHN INYANG OKORO, J.C.A.: I was obliged a copy of the judgment just delivered by my learned brother, Orji-Abadua JCA and I agree with him that this appeal lacks merit and ought to be dismissed. The Appellant, having made an alternative claim and having been granted the said alternative claim by the court below, cannot turn around to appeal against the judgment which is clearly in his favour. It is my view that since the court below had ordered a refund of the sum of N350,000.00 to the Appellant which he claimed in the alternative, that was sufficient for him and I think that was the proper order to be made in the circumstance. That being the case, I join my learned brother in dismissing this appeal. I abide by all consequential orders made in the lead judgment.

Appearances

Simon .Y. Arabo Esq; with S. I. Abdulazeez Esq.For Appellant

AND

G. O. Ochai Esq; Osagie Imhanbe Esq.For Respondent