DR. I.O.C. ABARA V. NWAEZE IGBO (Alias PRINCE OKWOR) (2013)

DR. I.O.C. ABARA V. NWAEZE IGBO (Alias PRINCE OKWOR)

(2013)LCN/6314(CA)

In The Court of Appeal of Nigeria

On Thursday, the 20th day of June, 2013

CA/E/79/2008

JUSTICES:

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

Between

DR. I.O.C. ABARA – Appellant(s)

AND

NWAEZE IGBO (Alias PRINCE OKWOR) – Respondent(s)

RATIO

WHETHER OR NOT AN ORDER OF SPECIFIC PERFORMANCE IS A MATTER OF RIGHT

The remedy of an order of specific performance, as submitted by the learned Counsel, is not a matter of right but upon the discretion of the court, and a party who seeks the courts discretion must present all materials necessary for the exercise of the discretion, without which the claim must fail. The cases of EZENWA V. OKPARA OKO (2008) 157 LRCN 230: DANGOTE V. CIVIL SERVICE COMMISSION PLATEAU STATE (2001) 9 NWLR (PT. 717) 132: MENAKAYA V. MENAKAYA (2001) 16 NWLR (PT. 738) 203 and GENERAL AVIATION SERVICES LTD. V. THAHAL (2004) 6 MJSC 120 were cited. PER AKEJU, J.C.A.

WHETHER OR NOT FINDINGS OF FACT ON THE CREDIBILITY OF WITNESSES ARE WITHIN THE DUTY OF THE TRIAL COURT

The law is that findings of fact especially where founded upon the credibility of witnesses are matters within the bosom of the trial court before whom the witnesses have adduced their evidence. These findings are presumed to be correct and until they are proved to be perverse or the presumption is otherwise rebutted, an appellate court will not readily interfere with the findings. See BALOGUN V. LABIRAN (1988) LPELR – 727 (SC): BAKARE V. STATE (1987) 6 SC 1. The principles that guide an appellate court in matters relating to findings of fact made by the trial court as stated in OLAREWAJU V. THE GOVERNOR OF OYO STATE (1992) LPELR – 257 (SC) are that the appellate court has no business making findings of fact where the trial court has done so or to reopen the issues of fact finally determined by the trial court. The appellate court is however entitled to make its own findings of fact or set aside those of the trial judge where that court has failed to utilise the advantage of having heard and seen the witnesses or where the findings of the trial court are not consistent with the evidence adduced. PER AKEJU, J.C.A.

WHETHER OR NOT AN APPELLANT MUST SUCCEED ON THE STRENGTH OF HIS OWN CASE

Let me restate here again that it is the duty of the appellant who has sought some reliefs from court against the respondent to establish those reliefs and should succeed on the strength of his own case, and where he has failed to do so, his claim must be dismissed. See KODILINYE V. ODU 2 WACA 336: BABAJIDE V. ADISA (1968) 1 ALL NLR 254: AKPOFURE V. OKEI (1973) 12 SC 137. The law is that he who asserts must Prove that which he has asserted. See AJIDE V. KELANI (1985) 3 NWLR (PT. 12) 248: CHIEF ABCHIBONG V. CHIEF ITA (2004) 1 SCNJ 141. PER AKEJU, J.C.A.

WHETHER OR NOT FACTS ASSERTED MUST BE PROVED

It is not only elementary, it is rudimentary that by Section 135 of Evidence Act now Section 131 of Evidence Act 2011, it is the party that desires any court to give judgment as to any legal right depending on the existence of facts which he asserts that has to proof that those facts exist. The plaintiff has a duty to establish his claim on the strength of the credible, concrete, probable and conclusive evidence adduced by him in the circumstances of his case. The initial duty of proving his case is always on the plaintiff. See JIAZA V. BAMGBOSE (1999) 7 NWLR (PT. 610) 82: ISHOLA V. UNION BANK OF NIGERIA (2005) 6 NWLR (PT. 922) 422. Where therefore the plaintiff as in this case has specific claims he has the duty to prove all the essential facts with clarity so as to be entitled to judgment. PER AKEJU, J.C.A.

DEFINITION OF A CONTRACT

ISAIAH OLUFEMI AKEJU, J.C.A.: (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Ebonyi State holden at Abakaliki delivered on 26/11/03 in Suit No. HAB/26/96 which was commenced by the appellant through the Writ of summons filed on 21/3/96. The Statement of Claim filed on 30/4/97 was amended and by paragraph 25 of the Amended Statement of claim filed on 24/5/2000, the plaintiff had claimed as follows:-
(a) A declaration that the defendant had by the state/stage of the transaction in relation to Plot R.4 (the land in dispute) passed the equitable interest therein to the plaintiff.
(b) A decree of specific performance directing the defendant to procure the survey plan of the land in dispute and to complete and hand over to the plaintiff all vital documents relating to the land the subject – matter of this suit
(c) A decree of specific performance directing the defendant to follow up the documents relating to the subject matter of this suit from the lands office in Enugu or Abakaliki (as the case may now be) and to hand same over to the plaintiff, in due specific performance of the contract.
(d) An order compelling the defendant to receive or collect from the plaintiff the sum of N75,000.00 being the balance due to him, on the contract or transaction.
(e) The sum of N25,000.00 being plaintiffs expenses in producing or prepairing a plan of the land, which plan the defendant caused to be with held from the plaintiff by the Land’s Office in Enugu.
(f) An injunction restraining the defendant either in person or through his agents, servants or privies from dealing with the land in dispute the subject – matter of this suit in any manner whatsoever except transferring his said equitable interest to the plaintiff.
The Amended Claim filed on 24/5/2000 was further amended to include a claim for the sum of N10 million as damages for breach of contract.
Following the order of court granting the defendant’s (respondent’s) application filed on 18/6/2000 for amendment of statement of defence, the respondent denied the claim of the appellant and sought the following by way of counterclaim:
(a) N50,000.00 (fifty thousand naira) being general damages for breach of contract.
(b) Setting aside the purported undated agreements signed in Barrister K.B. Okpaleke’s house which agreement was collected by the plaintiff and did not deliver any to the defendant.
(c) An Order that the plaintiffs claim be dismissed in its entirety for frauds.
The particulars of fraud were given as follows:
(i) Refusal of the plaintiff to pay the purchase price or any deposit.
(ii) Claiming the land as his without paying consideration.
(iii) With holding the cheque made out for the defendant.
The respondent subsequently filed a denial of the appellants’ claim for general damages of N10 million.
At the hearing of the Suit the appellant testified and called two other witnesses while the respondent did not testify and did not call any witness. In the judgment delivered on 26/11/2003, the learned trial judge A.N. Nwankwo Aching Chief Judge (as he then was) held that the appellant did not proof his case against the respondent to warrant the granting of any of the reliefs sought, and dismissed the case.
The appellant has appealed against the judgment of the trial court, and in the Appellant’s Brief of Argument filed on 22/1/09, the learned Counsel, Chief M.O. Uzor raised two issues for determination as follows:-
(a) Whether or not the learned trial Ag. Chief Judge was right when he held that there was no valid contract entered into between the plaintiff/Appellant and the defendant/respondent by reason of which he dismissed the suit.
(b) Whether or not the judgment was against the weight of evident.
In his argument, appellants’ Counsel contended that the case of the appellant was for specific performance of a contract for the sale or alienation of land, and from the evidence of the appellant’s three witnesses at the trial court, there was offer and acceptance while the land was designated and the price there was agreed upon, the counsel chosen by the parties had prepared documents in respect of the transaction and part of the consideration had been paid by the appellant to the respondent.
The learned Counsel contended that the facts of this case rather show that there was a valid contract for the sale of land, contrary to the decision of the learned trial judge since offer, acceptance and consideration had taken place, and the failure of the respondent to procure the Certificate of Occupancy and other relevant documents and release them to the appellant who had made part payment of N5,000.00 did not show lack of a valid contract for sale of the land. It was submitted that to hold that a valid contract did not exist and thereby allow the respondent to escape from completing the transaction is to sanction the fraud the respondent sought to perpetrate on the appellant.
The cases of ORUMWENSE V. AMU (2008) ALL FWLR (PT. 442) 1120, and BROSSETTE MANUFACTURING NIG. LTD V. M/S OLA ILEMOBOLA LTD (2007) ALL FWLR (PT. 379) 1340 were cited by Counsel who submitted also that based on the unchallenged evidence of the appellant’s witnesses, an enforceable contract had been created by virtue of the doctrine of privity of contract, and the appellant is entitled to a decree of specific performance, citing the cases of STORER V. MANCHESTER CITY COUNCIL (1974) 3 ALL ER 824: ANANZE V. ANYASO (1993) 5 SCNJ 151 and MADDISON V. ALDERSON 8 AC 475.
The learned Counsel contended that as in the decisions in the above cases, the instant appellant had shown that he was ready and willing to perform all the terms required of him by agreeing to buy the land and was taken thereto and boundaries shown to him while he paid part of the price and even prepared the requisite Survey Plan which the respondent took away.
It was submitted that by its decision, the trial court had made a case for the respondent who had refused to state his case inspite of all the opportunity he had to do so, citing MANTEE WATER TREATMENT NIG. LTD. V. PETROLEUM (SPECIAL TRUST FRUND (2008) ALL FWLR (PT. 439) 499. It was submitted also that the learned trial judge ought to have granted the reliefs sought by the appellant and ordered the respondent to procure the relevant documents of title in view of the undenied or unchallenged evidence of the appellant, relying on IBEKWE V. MADUKA (1995) 4 NWLR (PT. 392) 716, and HARUNA V. SAVANNAH BANK OF NIG. (1995) 2 NWLR (PT. 377) 326.
The learned Counsel contended that there was no challenge or strenuous challenge to the evidence of the appellant but the trial court failed to properly evaluate same, and thereby arrived at a perverse or wrong decision. He urged us to interfere with the trial court’s evaluation of evidence, citing ODIAWA V. FEDERAL REPUBLIC OF NIGERIA (2008) ALL FWLR (PT. 430) 436.
It was submitted that this being a case for specific performance relating to sale of land, damages cannot be an adequate remedy for its breach and therefore the court should order specific performance, citing UNIVERSAL VULCANISING (NIG) LTD V. IJESHA UNITED TRADING & TRANSPORT COMPANY LTD (UITTC (1992) 11/12 SCNJ (PT. 2) 243.
In the respondent’s Brief of Argument filed on 17/2/09, the learned Counsel, B.C. Ezeunegbu Esq. formulated two issues for determination as follows:
1. Whether there is a binding contract between the parties capable of being enforced by an order of specific performance.
2. Whether the plaintiff proved his case.
It was contended that all the documents prepared for the parties were undated, were never delivered and were left in the hands of the solicitor until both parties had performed their respective parts of the obligation by the respondent producing the relevant documents and the appellant paying him the agreed purchase price of N80, 000.00 it being clear to the Solicitor that the respondent had no title to the land as at the time of the agreement. It was submitted that the agreement between the parties was an escrow and unenforceable, citing DALFAM NIGERIA LTD V. OKAKU INTERNATIONAL LTD & ANOR (2002) FWLR (PT. 96) 501: AWOJUGBAGBE LIGHT INDUSTRIES LTD V. CHIMNUKWE (1995) 4 SCNJ 165: ANAMBRA STATE HOUSING DEVELOPMENT CORPORATION V. EMEKWE (1996) 1 SCNJ 98.
The learned Counsel contended that the findings of the trial court that the respondent had no title to the property in dispute at the documents were prepared and that consideration did not pass from the appellant to the respondent were not appealed against, and they remain binding and an appellate court will not disturb them, citing IDIOK V. THE STATE (2008) ALL FWLR (PT. 421) 797: AWOYALE V. OGUNBIYI (1986) 1 ALL NLR (PT. 1) 371. It follows therefore that, by the principle of Nemo dat quod non habet, the respondent had no title to convey to the appellant while the appellant who issued a cheque for N80,000.00 as against the balance of N75, 000.00 as stated by him did not pass any consideration, there was therefore no contract and the court could not decree specific performance of the contract which it could neither compel nor supervise.
As submitted by the learned Counsel, the main ingredients of a valid contract are not present in this case, no title deeds were passed or even possessed by the respondent and there is no evidence of the date the agreement was concluded. He relied on the cases of BFI GROUP V. BUREAU OF PUBLIC ENTERPRISES (2008) ALL FWLR (PT. 416) 1915: ALHAJI YAU DANKULA V. ALHAJI GARBA DAN SHAGAMU (2008) ALL FWLR (PT. 413) 1280. There was contradiction in the evidence of the appellant as to whether the payment of N5,000.00 to the respondent for which there was no receipt issued, was part of the N80,000.00 supposed consideration, and in the face of the inconsistency, the court is to treat the evidence as incredible, the learned Counsel submitted, citing ALHAJI JAWANDO V. BAKARE (2006) ALL FWLR (PT. 332) 1590.
On the claim by the appellant that he gave N5,000.00 to the respondent as part payment of the consideration of N80,000.00 the learned Counsel submitted that it is not enough to attract an order of specific performance, relying on ODUSOGA V. RICKETTS (1997) 7 NWLR (PT. 511) 1: UGWUNZE V. CHIEF ADELEKE (2008) ALL FWLR (PT. 408) 327 and B.F.I. GROUP V. BUREAU OF PUBLIC ENTERPRISES (2008) ALL FWLR (PT. 416) 1915.
It was submitted that the appellant in this case who did not produce any document that could confer interest in the property on him, and was not let into possession thereof could not be entitled to the equitable remedy of specific performance, citing WEST AFRICAN COTTON LTD V. SALISU YAKARA (2008) ALL FWLR (PT. 402) 1192, and on the invalidity of exhibits A and B being undated documents and exhibit A unstamped, the cases of AMIZU V. NZERIBE (1989) 4 NWLR (PT. 118) 755: OGBAHON V. REGISTERED TRUSTEES OF CHRIST’S CHOSEN CHURCH OF GOD (2001) FWLR (PT. 80) 1496, and OKUWOBI V. ISOLA (1973) 3 SC 48 were cited. This court was urged to discountenance exhibits A and B the effect of which is that the appellant did not furnish any consideration for the contract and cannot enforce it, citing HAIDO V. USMAN (2003) FWLR (PT. 166) 640.
On the survey plan allegedly prepared by the appellant upon agreement with the respondent and the basis for the claim of N25,000.00, the learned Counsel contended that no evidence was called or produced by the appellant who had the onus of do so as the plan was not produced nor the Surveyor called as a witness, and the appellant who issued a cheque of N80,000.00 did not deduct the cost from the agreed price. The cases of DAUKULA V. SHAGAMU (SUPRA): ABUBAKAR V. WAZIRI (2008) ALL FWLR (PT. 436) 2025: ANSA V. ISHIE (2005) FWLR (PT. 287) 1413: UZOHO V. TASK FORCE ON HOSPITAL MANAGEMENT & ORS (2003) FWLR (PT. 166) 606: IGBINOVIA ORHUE V. NEPA (1998) 5 SCNJ 126: EGABELE V. STATE (2006) 5 MJSC 96.
On the failure of the respondent to give evidence in challenge or contradiction of the evidence of the appellant and the PW2, and that the evidence be deemed as true and acted upon by the court, it was submitted that the principle does not apply in this case where the appellant from the nature of his claim is to succeed on the strength of his own case not withstanding that the respondent’s case is weak or makes no case at all. The cases of ADENIRAN V. ALO (2002) 1 SCM 12: UGWUNZE V. ADELEKE (SUPRA) and HAIDO v. USMAN (2003) FWLR (PT. 166) 640 were relied upon.
It was submitted that the respondent’s failure to contradict the evidence of the appellant does not make the allegations of the appellant to be true and acceptable to the court, citing KAYODE LAWRENCE V. A.G. FEDERATION (2008) ALL FWLR (PT, 426) 1901: MAJOR ADO (RTD) V. HON. COMMISSIONER FOR WORKS BENUE STATE (2008) ALL FWLR (PT. 436) 2058: ABUBAKIR V. CHUKS (2008) ALL FWLR (PT. 408) 207. It was submitted that even in the absence of a rebuttal evidence in this case, the evidence of the appellant is not sufficient to grant the reliefs he has claimed; NEWBREED ORGANISATION LTD V. J.E. ERHOMOSELE (2006) 2 FWLR (PT. 313) 2736.
The remedy of an order of specific performance, as submitted by the learned Counsel, is not a matter of right but upon the discretion of the court, and a party who seeks the courts discretion must present all materials necessary for the exercise of the discretion, without which the claim must fail. The cases of EZENWA V. OKPARA OKO (2008) 157 LRCN 230: DANGOTE V. CIVIL SERVICE COMMISSION PLATEAU STATE (2001) 9 NWLR (PT. 717) 132: MENAKAYA V. MENAKAYA (2001) 16 NWLR (PT. 738) 203 and GENERAL AVIATION SERVICES LTD. V. THAHAL (2004) 6 MJSC 120 were cited.
The learned Counsel submitted that the learned trial judge in this case had heard the evidence of the parties, evaluated the evidence, disbelieved the appellant and his witnesses, made findings of fact based on credibility of the witnesses and decided the case against the appellant on the merit after exercising his judicial discretion bonafide, an appellate court will not ordinarily disturb or interfere with the decision of the trial court, citing IDIOK V. STATE (SUPRA), EBE V. C.O.P. (2008) 157 LRCN 1: AWOJALE V. OGUNBIYI (1986) 1 ALL NLR (PT. 1) 371.
It was the contention of the learned Counsel that the trial court properly evaluated the evidence, made proper findings and came to the right conclusion that the plaintiff did not satisfactorily establish his case, the consequence of which is a dismissal of the case.
Thus from the pleadings in this case and the evidence of the appellant and his two witnesses, the claim of the appellant for declaration, injunction, specific performance and damages has been premised upon the sale and transfer transaction in respect of a piece of land described as Plot R.4 Residential/Commercial Layout, Abakaliki, Ebonyi State.
The appellant had been informed by some agents of the respondent the he (respondent) intended to sell the said land and the appellant sought to by same. They both visited the land and fixed the purchase price for N80,000.00 whereby they approached a Solicitor who prepared documents necessary to effect the sale and transfer of the land from the respondent to the appellant. The documents prepared by the Solicitor are:
(1) Deed of Assignment
(2) Irrevocable Power of Attorney
(3) To WHOM IT MAY CONCERN, and
(4) Receipt.
It became clear that the respondent did not possess the necessary documents of title to the land particularly the Certificate of Occupancy thereof, and undertook to travel to Enugu to procure the documents. The appellant claimed that he gave the respondent an amount of N5,000.00 to facilitate the procurement of the documents which money was expected to be part of the agreed price of N80,000.00. At that stage the parties signed the documents prepared by the Solicitor but the documents remained undated and gaps were left therein to be filled when the details of the respondent’s title would have been known while the appellant issued a cheque for N80,000 which was, with the documents signed but undated, left with the Solicitor to be collected by the respondent when he produced the documents. The appellant claimed to have produced also a survey plan of the land at his own expense for which he paid N25,000.00 and submitted the plan at the Lands Office in Enugu to facilitate the issuance of a Certificate of Occupancy or other related documents concerning the land.
The appellant came back from his trip to the United States of America to discover that the respondent did not present the title documents and also did not collect the cheque for the amount of N80,000.00. The appellant approached the Lands Office in Enugu where he was informed that the respondent had given instruction that the documents should not be released to the appellant. The appellant only learnt later that the respondent had sold the land to one Church, as a result of which he filed the action that led to this appeal.
At the hearing of the Suit, the appellant tendered the four documents prepared by the Solicitor, but while the Receipt and To whom it May Concern were admitted as exhibits A and B respectively, the other two documents, were rejected thus leaving no written agreement of the transaction before the trial court.
Upon the above facts, the learned trial judge in dismissing the appellant’s case in the judgment of 26/11/2003 found as follows at pages 97 -98 of the record of appeal;
“In the present case the defendant at the time of negotiation to sell R.4, Residential/Commercial Layout, had no title to the land in dispute. What he had was a mere letter of allocation of land, which does not vest the title in the property to him. From the evidence before me the plaintiff claimed that the consideration for the sale of the said property was N80,000.00 which was given to PW3 in cheque form to keep for the defendant until the defendant was able to produce the land documents. The plaintiff’s witnesses in another version claimed that N5,000.00 was given to the defendant as part payment of the purchase price of the property. The problem facing the court is how to establish that there is a valid and enforceable contract between the defendant as vendor and the plaintiff as purchaser. Using Exhibit A which is a receipt the defendant allegedly signed acknowledging receipt of N80,000.00 which was not given to him. The reasons for the said difficulty are as follows:-
(1) That the defendant had no title to the property in dispute at the time of signing exhibits A and B.
(2)That consideration did not pass from the plaintiff to the defendant. It the N5,000 allegedly paid to the defendant is part of consideration the plaintiff could not have issued a cheque of N80,000.00. The cheque could have been for N75,000.00 (Seventy five thousand naira).
(3) The plaintiff had not met all conditions precedent for a binding contract which include consideration.
For the reasons state above. . . It is my view that the transaction between the plaintiff and the defendant is so uncertain that this court is unable to interpret same as valid contract worth being enforced by a decree of specific performance.”
The above-quoted are findings of fact made by the learned trial judge who saw and heard the witnesses. The law is that findings of fact especially where founded upon the credibility of witnesses are matters within the bosom of the trial court before whom the witnesses have adduced their evidence. These findings are presumed to be correct and until they are proved to be perverse or the presumption is otherwise rebutted, an appellate court will not readily interfere with the findings. See BALOGUN V. LABIRAN (1988) LPELR – 727 (SC): BAKARE V. STATE (1987) 6 SC 1. The principles that guide an appellate court in matters relating to findings of fact made by the trial court as stated in OLAREWAJU V. THE GOVERNOR OF OYO STATE (1992) LPELR – 257 (SC) are that the appellate court has no business making findings of fact where the trial court has done so or to reopen the issues of fact finally determined by the trial court. The appellate court is however entitled to make its own findings of fact or set aside those of the trial judge where that court has failed to utilise the advantage of having heard and seen the witnesses or where the findings of the trial court are not consistent with the evidence adduced.
The appellant has raised two issues in this appeal, and his contention on the first issue is that in this suit which relates to a contract for sale of land, there had been offer and acceptance, the land had been designated with price therefore agreed upon, and documents relating to the transaction had been prepared by the Solicitor while a part of the consideration had been paid to the respondent, and based on these facts the indices of a valid contract had taken place which could not be defeated by the failure of the respondent to obtain the Certificate of Occupancy over the land.
It has been the contention of the appellant that the respondent who filed a statement of defence and counterclaim did not testify at the trial, and this has rendered the evidence of the appellant and his witnesses unchallenged, and to be accepted by the learned trial judge.
It must however be remembered that it was the appellant as plaintiff that sought reliefs, made allegations and asserted the positive of the matter. It is not only elementary, it is rudimentary that by Section 135 of Evidence Act now Section 131 of Evidence Act 2011, it is the party that desires any court to give judgment as to any legal right depending on the existence of facts which he asserts that has to proof that those facts exist. The plaintiff has a duty to establish his claim on the strength of the credible, concrete, probable and conclusive evidence adduced by him in the circumstances of his case. The initial duty of proving his case is always on the plaintiff. See JIAZA V. BAMGBOSE (1999) 7 NWLR (PT. 610) 82: ISHOLA V. UNION BANK OF NIGERIA (2005) 6 NWLR (PT. 922) 422. Where therefore the plaintiff as in this case has specific claims he has the duty to prove all the essential facts with clarity so as to be entitled to judgment.

Contract, according to Blacks Law Dictionary is an agreement between two or more parties creating obligations that are enforceable or otherwise recognisable at law. Before a contract can be said to exist and valid, there must be offer and acceptance which are unqualified, there must be consideration and capacity to contract as well as intention to create legal relationship. See TSOKWA MOTORS NIG. LTD V. UBN LTD (1996) 9 NWLR (PT. 471) 129: ORIENT BANK (NIG) PLC V. INTL. LTD (1997) 8 NWLR (PT. 515) 37.
The testimony of the appellant and his witnesses in the instant case has shown that the respondent and the appellant respectively showed the desire to sell and to buy the land known as R4, Residential/Commercial Layout in Abakaliki for a sum of N80, 000.00, they approached a Solicitor who was to prepare documents in actualisation of their desire. It however turned out that the respondent who posed as the owner of the property had no title document thereto, and therefore could not pass title thereof; basically on the principle that a man cannot give or pass that which he does not have – nemo dat quod non habet. At the point of this discovery, the parties postponed the perfection of their documents until the respondent would have acquired title to the land. The above scenario shows that the agreement of the parties was not based on any foundation because there was no property in law to be sold to the appellant by the respondent.
Although it was contended that the consideration had passed from the appellant to the respondent in the instant case, the evidence on record does not support this contention. The document tendered by the appellant is the Receipt admitted as exhibit A which is an undated document that has no evidential value. That exhibit states that the respondent received from the appellant the sum of N80,000.00 being full payment of the agreed price for the sale of land. It is correct to state that when reconciled with the oral testimony of the appellant and his witnesses, what exhibit A has stated is incorrect as it is stated by the witnesses that the cheque for N80,000.00 issued by the appellant was never received by the respondent. The appellant stated that he gave N5,000.00 to the respondent to procure the documents of title in respect of the land which was to form part of the N80,000.00 purchase price, but apart from his oral testimony, the appellant has nothing to show for this assertion, moreso that he had subsequently issued a “Receipt” for N80,000.00 as the full payment.
Based on the foregoing, it is not in any doubt that the appellant has not proved that any consideration passed from him to the respondent in respect of the contract, which ab initio was non-existent as the respondent had no title to the land and consequently nothing could have been sold, and indeed nothing was sold. I agree with the learned trial judge that there was no valid contract between the parties in this case.
This being the position as deducible from the evidence of the appellant and his witness, there could not have been any duty on the respondent to challenge or even answer the hollow, incredible and unreliable evidence of the appellant that has failed to establish the facts asserted by him. Considering the principle that evidence not challenged by a party that had the opportunity to do so should be believed and accorded credibility as held in ODULAJA V. HADDAD (1973) ANLR 36, Pats – Acholonu JSC in NEKA B.B.B. MANUFACTURING CO. LTD V. ACB LTD (2004) ALL FWLR (PT. 198) 1175 put the position thus at page 1197;
“An opposing party should not be expected to challenge an evidence that is hollow, empty or benefit of any substance as that would to my mind amount to chasing a shadow. I am familiar with the case of ODULAJA V. HADDAD (1973) ANLR 36 to the effect that an evidence not challenged by the party that had the opportunity to do so should ordinarily be believed and accorded credibility. I believe that such holding rests on the premise that such evidence is capable of being believed if not challenged. In other words when the evidence is weak in content as not to assist the court or is manifestly unreasonable or is devoid of any substance as not to assist in resolving the matter in issue it will be safe to ignore it….”
The case of ANAEZE V. ANYASO (1993) 5 SCNJ 151 cited and relied upon by the appellants’ Counsel was also relied upon at the trial court and the learned trial judge, after robustly considering the case gave 8 sound reasons why the case is inapplicable to the instant case. I have calmly studied the reasons given by the learned judge at pages 95-96 of the record of appeal and I agree entirely with the trial court.
It was the contention of the appellant’s Counsel at page 8 of his brief in support of issue one that the learned trial judge should have granted the order for specific performance and order the respondent to procure or secure the relevant documents of title and hand them over to the appellant.
Specific performance is an equitable remedy which is based on the existence of a valid, subsisting and enforceable contract as well as circumstances that make it equitable to make the order. The factors that the court will consider in granting or refusing a claim for specific performance are stated by the Supreme Court in HELP (NIG) LTD. V. SILVER ANCHOR (NIG) LTD. (2006) ALL FWLR (PT. 311) 1833 per Katsina-Alu JSC at page 1843 thus;
“The general principle of law is that specific performance is a discretionary remedy. The discretion is judicial discretion and is based on well settled principles. The jurisdiction to order specific performance is based on the existence of a valid enforceable contract. The courts will not decree specific performance if the contract suffers from some defect such as informality, mistake or illegality which makes the contract invalid or unenforceable. See also ALIU HASSAN (2004) FWLR (PT. 194) 494.”It is clear from the evidence of the appellant and his witnesses in the instant case that the respondent did not at any point in the course of his dealings with the appellant show any title he had in respect of the land known as R4 Residential/Commercial Layout, Abakaliki nor was any consideration proved to have passed to the respondent. In all these there was no valid and enforceable contract that can prompt the order for specific performance which, was rightly refused by the trial court.
I resolve issue number one against the appellant.
On his second issue for determination raised by the appellant which is whether the judgment is against the weight of evidence, the contention of the learned Counsel is that there being no evidence from the respondent to tilt the imaginary scale against the appellant, the court should have entered judgment for the appellant.
Let me restate here again that it is the duty of the appellant who has sought some reliefs from court against the respondent to establish those reliefs and should succeed on the strength of his own case, and where he has failed to do so, his claim must be dismissed. See KODILINYE V. ODU 2 WACA 336: BABAJIDE V. ADISA (1968) 1 ALL NLR 254: AKPOFURE V. OKEI (1973) 12 SC 137. The law is that he who asserts must Prove that which he has asserted. See AJIDE V. KELANI (1985) 3 NWLR (PT. 12) 248: CHIEF ABCHIBONG V. CHIEF ITA (2004) 1 SCNJ 141.The learned trial judge who has the primary duty to evaluate the evidence adduced in the case had satisfactory evaluated the oral and documentary evidence before the court and found that the evidence of the appellant has not supported the reliefs sought by him and dismissed the claim. I have also calmly considered the same evidence and I am in total agreement with the learned trial judge. The claim of the appellant was rightly dismissed.
I resolve this issue also against the appellant.
On the whole this appeal lacks merit and it is dismissed with costs of N50,000.00 to the respondent.

MOJEED ADEKUNLE OWOADE, J.C.A.: I had the advantage of reading in draft the judgment of my learned brother, ISAIAH OLUFEMI AKEJU JCA. I agree with him that this appeal lacks merit and ought to be dismissed. My learned brother has exhaustively dealt with all the salient issues submitted for the determination of this appeal and I adopt both his reasoning and conclusion as mine. I also dismiss this appeal. I subscribe to the order as to costs made in the lead judgment.

EMMANUEL AKOMAYE AGIM J.C.A.: I had read the judgment just delivered by my learned brother, ISAIAH OLUFEMI AKEJU JCA. I am in agreement with the reasoning and conclusions therein. I also hold that the appeal lacks merit and is hereby dismissed. I also order that the appellant pay cost of N50,000 to the respondent.

Appearances

Nebo EmekaFor Appellant

AND

B.C. EzeunegbuFor Respondent