VICTOR EMUIVIE I. OBASEKI & ORS v. PRINCE TERRY UKHUEGBE
(2010)LCN/4164(CA)
In The Court of Appeal of Nigeria
On Thursday, the 16th day of December, 2010
CA/B/104/2004
RATIO
EVALUATION OF DOCUMENTARY EVIDENCE: WHETHER AN APPELLATE COURT IS IN A GOOD POSITION AS A TRIAL COURT IN THE EVALUATION OF DOCUMENTARY EVIDENCE
An Appellate court is in a good position as a trial court in the evaluation of documentary evidence. The Supreme Court/Court of Appeal can examine exhibits and draw necessary inference. See GUOZEE NIG.LTD V. N.E. R. &D COUNCIL (2005) 6 SC (pt 1) AII FWLR (pt 274) 235. PER GEORGE OLADEINDE SHOREMI J.C.A
ORAL /DOCUMENTARY EVIDENCE: POSITION OF THE LAW WHERE THERE IS ORAL AND DOCUMENTARY EVIDENCE
In FASHANU V. ADEKOYA (1974) 6 SC and JIWADU V. ARO (2009) 4 SCNJ 39. The Supreme Court held that where there is oral and documentary evidence, documentary evidence should be used as a hanger from which to assess oral testimony. PER GEORGE OLADEINDE SHOREMI J.C.A
BURDEN OF PROOF: WHETHER THE BURDEN OF FIRST PROVING THE EXISTENCE OR NON EXISTENCE OF A FACT LIES ON THE PARTY AGAINST WHOM THE JUDGMENT OF THE COURT WOULD BE GIVEN IF NO EVIDENCE WAS PRODUCED
The burden of first proving the existence or non existence of a fact lies on the party against whom judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. If such party adduces evidence which ought reasonably to satisfy the Judge that the fact sought to be proved is established the burden lies on the party against whom judgment would be given if no more evidence is adduced- See EGHAREBA OSAGIE (2010) All FWLR (Part 513) SC 1255. PER GEORGE OLADEINDE SHOREMI J.C.A
AGREEMENT FOR SALE OF LAND: POSITION OF THE LAW WHERE IN AN AGREEMENT FOR SALE OF LAND EITHER UNDER LAW AND CUSTOM OR ANY OTHER MODE OF SALE, FULL OR PART PAYMENT OF THE PURCHASE PRICE TO THE VENDOR AND THE PURCHASER IS PUT IN POSSESSION OF THE LAND
In DR BENJAMIN OHIAERI V ALHAJI B.I YUSUF (2009) 2-3 SC (Pt. 11) at 145 particularly at 155 the Supreme Court has this to say:- “The established legal Principle is that where there is an agreement for sale of land either under Law and Custom or any other Mode of sale for which the purchases, acting within the terms of 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 value as high as a legal estate and cannot therefore be override by a subsequent legal estate created by the same vendor or his legal representative in favour of another purchaser”. The principle was examined in AYINLA V. SIJUWADE (1934) NSCC 301 at 312 and was applied. In the same case the Supreme Court has this to say at page 162 – “An action for specific performance arises when there exists a contract coupled with circumstances which makes it equitable to grant a decree of same. This being a contract for sale of land attracts greater justifications for a decree of specific performance because as opposed to other types of contract the land may have a special and peculiar value to the purchaser. The plaintiff/Respondent has therefore every justification to claim for specific performance”. Equity looks on that as done which ought to be done OHIAERI V. YUSUF and 3 ORS (2009) 2 NMLR 313. This court in UGWIINZE V. ADELEKE (2003) ALL FWLR (Pt 408) 327 reaffirmed that at Common Law, payment of purchase price coupled with possession gives the purchaser an equitable title and he is entitled to seek an order of specific performance to compel the vender to grant legal title. The Supreme Court again in the case of MINILODGE LTD V. NGEI (2010) AII FWLR (Part 506) 1806 at 1832 has this to say I quite. “In a contract for sale of property where part payment was paid, the law is that the contract for purchase concluded and is final, leaving the payment of the balance outstanding to the paid. The contract for the sale and purchase is absolute and complete for which each party in breach for non-performance and for which a contract can be maintained for specific performance”. PER GEORGE OLADEINDE SHOREMI J.C.A
JUSTICES
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
Between
1. VICTOR EMUIVIE I. OBASEKI
2. LOVETTE IROGHAMA O. OBASEKI
3. EVELYN EVBAGIJEKHIKHAN O. OMAGEMIE(NEE OBASEKI)
4. JOYCE OYENMWU’WA O. OBASEKI Appellant(s)
AND
PRINCE TERRY UKHUEGBE Respondent(s)
GEORGE OLADEINDE SHOREMI J.C.A (Delivering the Leading Judgment): By its Statement of Claim in Suit No. B/133/2000 the Respondent in this case claimed against the Appellants (then defendants) as follows:
WHEREOF the Plaintiff claims against the Defendant jointly and severally as follows:-
(a) A declaration for possessory title in favour of the Plaintiff to ALL that property known as No. 83 (now 89) Akpakpava Street, Benin City, more particularly delineated in survey plan No. ISO/BD/1451/89 and redefined in plan No. ISO/ED/1050/93 by reason of the existing sale Agreement between the parties and that the plaintiff is the person entitled to the grant of statutory Rights of Occupancy thereto.
(b) An order that any purported sale, Transfer, or alienation of any title or interest in the property to any person other than the Plaintiff is null and void and of no effect and purpose.
(c) An order for specific performance of the Agreement to sell or formally convey the property known as No. 83
(now 89) Akpakpava Street Benin City more particularly delineated in survey plan No.ISO/BD/1451/89 and redefined in survey plan No. ISO/ED/1050/93 in favour of the Plaintiff pursuant to the Agreement dated 11th November 1993.
(d) An order of perpetual injunction restraining the Defendant their Agent &, privies and servant from trespassing on the property in dispute or howsoever doing anything that is inconsistent with the right of interest of the Plaintiff on the said property.
Pleadings were exchanged. Both parties prosecuted their cases with their amended statements. The 1st Appellant was the only complaint defendant but by order of court 2nd- 4th Appellants were joined as defendants as necessary parties to the suit.
Parties called witnesses and their counsel addressed the court. The lower court in a judgment delivered on 20/06/02 gave judgment in favour of the Respondents in the following terms:-
On the whole, weighing the evidence in support of the case for the Plaintiff side by side the evidence in support of the case for the defence, I prefer the case for the Plaintiff to that of the defence. I am of the view that the plaintiff has established his case and claims against the defendants on the preponderance of evidence. I have no doubt in my mind that the defendant has failed to establish that the 2nd defendant was not a part to the agreement of sale, exhibit C and have also failed to show that the agreement exhibit C was forged or that 2nd defendant did not sign exhibit C.
Consequently, it is herein declared that the Plaintiff is entitled to possessory title to All that property known as No.83 (now No.89) Akpakpava Street, Benin City, more particularly delineated in survey plan No. ISOLBD/1451/89 and redefined in plan No. ISO/ED/1050/93 by reason of the existing sale Agreement between the parties and that the Plaintiff is the person entitled to the grant of statutory Rights of Occupancy thereto. It is herein declared that any purported sale, transfer, or alienation of any titled or interest in the property to any person other than the Plaintiff is null and void and of no effect and/or purpose whatever. The defendants are herein jointly severally ordered to specifically perform the Agreement to sell or formally convey the property known as No. 83, (now No.89) Akpakpava Street, Benin City. None particularly delineated in survey plan No. ISO.ED/1451/89 and refined in plan No. ISO/ED/1050/93 in favour of the Plaintiff pursuant to the Agreement dated 11th November, 1993. The Defendants, their Agents, Privies, Assigns and trespassing on the property in dispute or however doing anything that is inconsistent with the right or interest of the Plaintiff on the said property”.
The Appellants as defendants dissatisfied with the judgment appealed to this court and filed two original grounds of appeal and by leave of court filed two additional grounds.
The grounds of appeal are hereunder set out without particulars –
(1) That the learned trial judge erred in law in proceeding to give judgment against the Appellants when the Plaintiff failed to establish by credible evidence that there was a contract of sale as in Exhibit C.
(2) That the learned trial judge erred in law in proceeding to give judgment against the Appellants when there was ample evidence that the property was jointly owned by the Defendant/Appellants.
The learned trial Judge erred in law by holding in that part of his judgment as follows:
“Consequently, it is herein declared that the Plaintiff is entitled to prossessory title to ALL that property known as No.83 (now No.89) Akpakpava Street Benin City more particularly delineated in Survey Plan No. ISO/BD/1451/89 and redefined in Plan No. ISO/BD/1050/93 by reason of the existing sale agreement between the parties and that the Plaintiff is the person entitled to the grant of Statutory rights of Occupancy thereto'” and came to a wrong decision in giving judgment to the Plaintiff.
The learned trial judge erred in law and came to a wrong decision in holding in that part of his judgment as follows:
“The defendants are herein jointly and severally ordered to specifically perform the agreement to sell or formally convey the property known as No.83 (now No. 89) Akpakpava Street Benin-City more particularly delineated ISO/BD/1050/93 in favour of the Plaintiff pursuant to the Agreement dated 11th November, 1993”.
the Plaintiff pursuant to the agreement dated 11th November.
In this court and in line with the Rules of court briefs were exchanged.
The appeal came up for hearing on 29/9/10 K.S. Okeaya-Inneh SAN Senior counsel leading other counsel for the appellants adopted his brief dated 25/04/05 filed same day but deemed filed on 19/10/05 vide a motion dated 25/4/05. He also adopted his reply brief dated 12/2/10. He relied on the two briefs as his argument in favour of the appeal. He said that the court should look critically at Exhibit c showing that the 2nd Appellant was not a party to the sale. He also submitted that the author of exhibit C could not identify the parties. He submitted that this court should note that only half of the price of purchase was paid. He urged the court to allow the appeal.
AGHIMIEN SAN also leading other counsel for the Respondent adopted and relied on the Respondent’s brief dated 27/9/06 filed same day vide a motion dated same day. On the issue of claim for specific performance he further cited the case of DR. OHIAERI V. YUSUF (2009) Vol. 175 Law Report of Court of Nigeria page 210 at 213. He submitted that an agreement was made to sell the property. He urged the court to dismiss the appeal as lacking in merit. He also pointed out that the Reply brief is only a repetition of argument in the Appellants brief and therefore should be discountenanced.
Let me without wasting any time on the issue of the Reply brief. I have read the Appellants brief and Appellants Reply Brief the reply brief did not satisfy the function of a Reply brief. It has been decided in the following cases: A.C.B. LTD V. APUGO (1995) 6 NWLR Ft 399 65; POPOOLA V. ADEYEMI (1992) 4 NWLR Pt 257 I and AKINRINMADE V. LAWAL (1996) 2 NWLR (Pt 429) 218 and E.I.I.A V. C.I.E 2006 4 NWLR (Pt 969) 114 that the function of a reply brief is to refute the new arguments in the Respondent’s brief. A Reply brief is necessary when an issue of law or argument is raised in the Respondents brief requires a reply by the Appellant. A reply brief is not meant to reargue or fine tune an Appellants case.
I am therefore in agreement with the Respondent’s counsel that the “Reply Brief” of the Appellants fails to satisfy the performance of a reply brief and it only reargued the Appellants case contained in his brief. The Reply brief is discountenanced.
The background facts of this case are that –
The Defendant/Appellants herein were joint beneficial owners of the land/property in dispute situate and being at No. 89 (formerly 83) Akpakpava Street, Benin City having inherited same from their later father Late Samson Okakan Osemwingie Obeseki vide a Will and Testamentary disposition. Pursuant to the joint devise, the Appellants herein jointly surveyed the property and produced a survey plan Exh. ‘A’ ostensibly in preparation for joint sale to prospective buyers. Consequently, the Appellants, in exercise of their rights of inheritance, jointly conveyed and or agreed to sell the said property to the Plaintiff/Respondent herein for a consideration of N1.5 million vide a Deed of Transfer dated 11th November, 1993 – Exh ‘C’.
Pursuant to the said Agreement to Transfer, the Plaintiff took steps to take possession after fencing the property and surveying the same as per Exh. ‘B’ reflected from Exh. ‘A’.
As conceded in the Appellants’ Brief, it is common ground in this case that:-
(i) the parties agreed in Exhibit ‘C’ on the terms and Conditions of the sale of the property in dispute.
(ii) the agreed price was N1,500,000.00 out of which part- payment of N750,000.00 was made by the Respondent and acknowledged by the Appellants.
(iii) the balance of N750,000.00 of outstanding and unpaid at the date of the judgment in this cage after unsuccessful attempt to pay the said balance sum.
(iv) the title documents were handed over to the Respondent upon the execution of Exhibit ‘C’ and in his own evidence; he fenced the property and took possession of same. See page 79, lines 9 to 14 of the record.
While the Defendant were yet to comply with the Terms of Agreement (Exh. ‘C’) by evicting the tenants to enable the Plaintiff pay the balance purchase price, it was discovered that the 1st Appellant had concluded arrangement to sell the said property to another person and leave the country. The Plaintiff promptly instituted this action and secured an interim order of injunction against the 1st Appellant. Later, other Appellant joined in to them that the 1st Defendant alone intended to resell the property.
The Appellants from the 4 grounds of appeal raised 2 issues for determination-
(1) Whether the trial Judge was right in giving judgment for the Respondent in the light of the available evidence before the Court.
(2) Whether the learned trial Judge was right in granting specific performance and possessory title in favuor of the Respondent, the Appellant having admitted receiving part payment for the sale of the property.
I intend to base this judgment on issues raised in the Appellants brief:
Issue1 whether the learned trial Judge was right in giving judgment for the Respondent in the light of the unclear evidence as to the particular property sold and absence of consensus by the Appellants to sell the property (Grounds 1 & 2 of the Grounds of Appeal).
It is submitted by the Appellants counsel that the evidence of the Appellants and that of the Respondent run parallel to each other with regard to the circumstance that led to the execution of Exhibit ‘C’. He said when the Respondent and PW2 told the court that 2nd Appellant was present; the 2nd Appellant said she was not present when exhibit C was executed. He referred to Exhibits 02, 03, 04 which were travel documents of the 2nd Respondent showing that she was not in Nigeria when Exhibit C was executed. He further submitted that having regard to the evidence of PW4, the validity of Exhibit C, the duty of the court is to find independent witnesses to resolve the controversy. He supported his argument with the following authorities –
(1) IKEABOR V. ELOSIUBA (1994) 8 NWLR part 613 page 153;
(2) MUHAMED ALI V. ABROSIMI 6 WACA Vol. VI 148
(3) FASAYA V. ADEKOYA (2000) 15 NWLR part 698 Ratio I & 2
The Respondent on issue I submitted that there is enough and sufficient evidence on record leading to the execution of Exhibit. C in particular the evidence of PW2. There is clear insight on whom and who were present in the transaction leading to the execution of Exhibit ‘C’. The presence of the 4 Vendors who are siblings of the same mother and father was evident on the record particularly Evidence of PW2 the agent representing both parties in the negotiation for the sale of the said property.
Each party also had witnesses that signed exhibit C. He also submitted that the evidence of PW4 Mr. Eromosle as he then was also testified that all parties were present when Exhibit C was executed. The Respondent submitted that the answer to the 1st issue should be resolve against the Appellant.
I have considered the submissions contained in the briefs of both Appellants/Respondent Proof in a civil case is on the balance of probability or on the preponderance of evidence of any trial Parties give evidence as to the claim before the court and judgment will at end of the day be given to the party that the evidence tilts in favour of the case.
An Appellate court is in a good position as a trial court in the evaluation of documentary evidence. The Supreme Court/Court of Appeal can examine exhibits and draw necessary inference. See GUOZEE NIG.LTD V. N.E. R. & D COUNCIL (2005) 6 SC (pt 1) AII FWLR (pt 274) 235.
The only complaint of the 2nd Appellant was that she was not in Nigeria when exhibit C was executed. The question is who signed her name on the exhibit C. I am not unaware of the evidence of the learned counsel for the 2nd Appellant and all exhibits tendered in that behalf. The insinuation of the Appellants is that the signature of the 2nd Appellant was forged. The question is who signed her name on the exhibit C. I am not unaware of the evidence of the learned counsel for the 2nd Appellant and all exhibits tendered in that behalf. The insinuation of the Appellants is that the signature of the 2nd Appellant was forged. The question is who did? If there is fraud was it proved? The trial Judge was right in his assessment of Exhibit C.
I also looked into Exhibit C and Prima Facie; there is nothing to show that the 2nd Appellant was not present. In FASHANU V. ADEKOYA (1974) 6 SC and JIWADU V. ARO (2009) 4 SCNJ 39. The Supreme Court held that where there is oral and documentary evidence, documentary evidence should be used as a hanger from which to assess oral testimony.
There was adequate evidence on record to support the finding of the trial court. The burden of first proving the existence or non existence of a fact lies on the party against whom judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. If such party adduces evidence which ought reasonably to satisfy the Judge that the fact sought to be proved is established the burden lies on the party against whom judgment would be given if no more evidence is adduced- See EGHAREBA OSAGIE (2010) All FWLR (Part 513) SC 1255.
From the forgoing I resolve issue I against the Appellants and in favour of the Respondent- Therefore Grounds 1 & 2 of the grounds of appeal failed.
Issue 2 Whether the learned trial Judge in the light of the evidence at the trail, was right in granting specific performance and possessory title in favour of the Respondent in complete disregard of the evidence adduced.
(Grounds 3 & 4).
The Appellants and Respondent in their argument agreed to a common ground in this case that:-
(i) the parties agreed in Exhibit C on the Terms and Conditions of the sale of the property in dispute;
(ii) the agreed price was N1,5000,000.00 of which part-payment of N750,000.00 was made by the Respondent and acknowledged by the Appellant.
(iii) The balance of N750,000.00 is outstanding and unpaid at the date of the judgment in this case.
(iv) The title, document were handed over to the Respondent upon Execution of Exhibit C and in his own evidence, he fenced the Property and look possession of same. See page 79, lines 9 to 14 of the Record of Proceedings.
The Appellant argued that demolition of the building on the property was not a condition precedent to the Possessory right of the Respondent. He submitted that the Respondent had not paid the balance as agreed in Exhibit C. The payment of the balance was overdue. He argued that the exercise of equitable jurisdiction to grant specific performance is not a matter of right in the person seeking the relief but of discretion in the court. In his own opinion he who seeks equity must do equity. He relied on the case of LAMARE V. DIXON (1873) LR6, H.L 414 at 423. He argued that the Respondent having not paid the balance of purchase price is not entitled to a decree of specific performance. He argued that the law requires that the interest of both parties to the Agreement must be fully protected in granting specific performance. He relied on the case of BLACKETT V. BATALAHES (1865) 1 CH PAPP 171 at 124. In his submission that the trial Judge was wrong in ordering specific performance where there is still an obligation to pay the balance as agreed. He finally submitted that the grant of order of specific performance on the Appellants makes a complete Mockery of the law of contract for sale of goods and property’ He urged the court to allow the appeal on that ground.
On this issue the Respondent submitted that with Exhibit C there exist a final and complete Agreement between the Appellants and Respondent and they are bound by it. He relied on OLATUNDE V. OBAFEMI AWOLOWO UNIVERSITY (1998) 5 NWLR Pt 549, 178; ODUOYE V. G. AIRWAYS LTD (1987) 2 NWLR Pt 55 page 126. He argued that once there is an agreement on the essential terms a contract of sale of land is complete.
Referred to KINGSLEY EDOSA V. ELIZABETH ERABOR ZACCALAH & ANOR Appeal No. CA/B/265/00 (unreported) delivered on 26/5/05. He said there is distinction in a situation where the purchaser merely depmited money for the purchase. He heavily relied on the case of BUYO V.AKU (1996) NWLR (Pt 422) Page 1 at page 8.
He argued that Exhibit D which empowered the 1st Appellant to resell the property in dispute is the genesis of this action. He dismissed the submission of the Appellants that the Property was alleged to be sold is not clear. He said it was clear that the property sold was formerly No.83 (now 89) Akpakpava Road is well described in Exhibit C. He concluded that based on the facts and evidence in this court the appeal should be dismissed.
Let me first clear the argument of the Appellants that the property to be sold is not clear. I agree with the Respondent that this is an after thought, that is to say the least Paragraph 7 of Exhibit C reads I quote –
“Acting together the ASSIGNORS have agreed with the Assignee to assign to the Assignee all the residue of their interest created by the Wilt in raped of the piece or parcel of land situated and being at No. 83 lkpoba (Akpakpava) Road together with the building thereon (properly described in the Survey Plan attached hereto)”.
Now to the submission that the trial Judge was wrong to have ordered specific performance. It is on record that the Respondent had issued another cheque as balance for the 1st Appellant but had to be stopped due to the attitude of the 1st Appellant.
The payment of balance was not the main issue but the attempt by the 1st Appellant to resell the property which he had earlier sold to the Respondent even to the extent of taking N20,000 as aid for the demolition of a building. I agree with the learned trial Judge that the Appellants are estopped from denying the sale. In DR BENJAMIN OHIAERI V ALHAJI B.I YUSUF (2009) 2-3 SC (Pt. 11) at 145 particularly at 155 the Supreme Court has this to say:-
“The established legal Principle is that where there is an agreement for sale of land either under Law and Custom or any other Mode of sale for which the purchases, acting within the terms of 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 value as high as a legal estate and cannot therefore be override by a subsequent legal estate created by the same vendor or his legal representative in favour of another purchaser”.
The principle was examined in AYINLA V. SIJUWADE (1934) NSCC 301 at 312 and was applied. In the same case the Supreme Court has this to say at page 162 –
“An action for specific performance arises when there exists a contract coupled with circumstances which makes it equitable to grant a decree of same. This being a contract for sale of land attracts greater justifications for a decree of specific performance because as opposed to other types of contract the land may have a special and peculiar value to the purchaser. The plaintiff/Respondent has therefore every justification to claim for specific performance”.
Equity looks on that as done which ought to be done OHIAERI V. YUSUF and 3 ORS (2009) 2 NMLR 313.
This court in UGWIINZE V. ADELEKE (2003) ALL FWLR (Pt 408) 327 reaffirmed that at Common Law, payment of purchase price coupled with possession gives the purchaser an equitable title and he is entitled to seek an order of specific performance to compel the vender to grant legal title.
The Supreme Court again in the case of MINILODGE LTD V. NGEI (2010) AII FWLR (Part 506) 1806 at 1832 has this to say I quite.
“In a contract for sale of property where part payment was paid, the law is that the contract for purchase concluded and is final, leaving the payment of the balance outstanding to the paid. The contract for the sale and purchase is absolute and complete for which each party in breach for non-performance and for which a contract can be maintained for specific performance”.
In the instant case I do not wish to interfere with the findings made by the lower court. There had been no miscarriage of justice.
Issue 2 is therefore resolved in favour of the Respondent Grounds 3 & 4 of the grounds of appeal are dismissed. The whole appeal lacks merit and it is dismissed. The judgment of Edokpayi J. delivered on 28/6/2002 at the High Court Benin City is hereby affirmed.
I award cost of N30,000 in favour of the Respondent.
AMIRU SANUSI, J.C.A: I have carefully perused the draft of the judgment of My Lord, Shoremi, and JCA, just delivered.
My noble Lord has painstakingly treated all the issues reversed by the parties in this appeal. I am at one with his reasoning and conclusion that the appeal lacks merit and deserves to be dismissed. It is also hereby dismissed by me. I endorse the order on costs made in the lead judgment.
OYEBISI FOLAYEMI OMOLEYE, J.C.A: I have read before now the lead judgment just delivered by my learned brother, G.O Shoremi, JCA, with which I entirely agree. For the same line of reasoning and conclusions as spelt out for resolution in this appeal, against the Appellant and in favour of the Respondent.
I dismiss this appeal as it is devoid of merit and affirm the judgment of the trial Court. I abide by the consequential orders made in the aforesaid lead judgment, including that for cost.
Appearances
K.S. Okeaya-Inneh SAN with D.O. Aziegbe Esq.For Appellant
AND
J.O. Aghimien SAN with P.I Oiwoh Esq. and Mrs. F.O. Ozhehenhen EsqFor Respondent
