MR. VICTOR EKA v. MR. CALEB ADETUNJI BODUNRIN KUJU
(2013)LCN/6554(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of November, 2013
CA/L/770/08
Before Their Lordships
SIDI DAUDA BAGEJustice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBAJustice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJIJustice of The Court of Appeal of Nigeria
Between
MR. VICTOR EKAAppellant(s)
AND
MR. CALEB ADETUNJI BODUNRIN KUJURespondent(s)
RATIO
THE ELEMENTS OF A VALID CONTRACT
I have considered carefully the submissions of the parties on this issue.
It is indeed trite law that the elements of a valid contract are offer, acceptance, consideration and a clear intention to enter into legal relations. See the court of Appeal judgment in Anwasi v Chabasaya (2000) 6 NWLR (Pt.661) 408 @ 417 A upheld by the supreme court in Chabasaya v Anwasi (2010) 10 NWLR (Pt.1201) 163. In the case of Dankula v. Shagamu (2008) ALL FWLR (Pt.413) 1280 at 1307-1308 paras E – B (CA), consideration was defined “…. as the inducement to a contract. It is the cause, motive, price or impelling influence which induces a contracting party to enter into a contract; the reason or material cause of a contract; some right, interest, profit or benefit accruing to one party or some forbearance, detriment, loss or responsibility, given, suffered or undertaken by the other. It is a basic, necessary element for the existence of a valid contract that is legally binding on the parties. See: S.P.D.C. (Nig) Ltd v. Allaputa (2005) 9 NWLR (Pt.931), 475 at 499 para F – H and Oyewale v. Lawal (2008) Vol.37 WRN 128 at 138 Lines 20 – 45 (SC) Fabiyi J.S.C.”PER IYIZOBA, J.C.A.
WHETHER OR NOT A CONTRACT WHERE CONSIDERATION HAS NOT BEEN MET IS ENFORCEABLE
In Chabasaya v. Anwasi (2010) 10 NWLR (Pt.1201) 163 the Supreme Court per Mukhtar JSC @ 179 G – H stated thus:
“A Contract in which consideration has not been met is one that can be said has been breached and is unenforceable as consideration is one of the terms of the contract. This fact has been supported by evidence on both sides as stated above. As the consideration in this agreement has not been fulfilled the defendant/appellant was breach of the contract and the plaintiff/respondent had a legal right to sue the defendant for breach of contract”‘ PER IYIZOBA, J.C.A.
WHEN A CONTRACT OF SALE IS SAID TO EXIST
In the case of Mini Lodge Ltd. v. Ngei (2009) 18 NWLR (Pt.1173) 254 @ 284 – 285 G – A, the Supreme Court per Adekeye JSC observed:
“The evidence before the court portrayed what could have been a simple contract of sale and transfer of property. An offer must be accepted in order to crystatlize into a contract. A contract of sale exists where there is a final and complete agreement of the parties on essential terms of the contract, namely the parties 1st the contract, the property to be sold, the consideration for the sale and the nature of the interest to be granted. Once there is agreement on these essential terms, a contract of sale of land or property is made and concluded.In a contract for sale of property where part payment was paid, the law is that contract for purchase has been concluded and is final, leaving the payment of the balance outstanding to be paid. The contract for the sale and purchase are absolute and complete for which each party can be in breach for non-performance and for which an action can be maintained for specific performance.” PER IYIZOBA, J.C.A.
THE DEFENCE OF LACHES AND ACQUIESCENCE
The law relating to the defences of laches, acquiescence and standing by is clear. Not only that the defences must be pleaded, full facts and particulars must be pleaded: Adeniran v. Ajao (2001) 12 SCNJ 337. The full facts and particulars which must be pleaded by the Defendant must include details to prove that there had been time lapse between his possession of the land in dispute and the adverse title challenging his possession. Ezekwesili v. Agbapuonwu (2003) 9 NWLR (Pt.825) 337. PER IYIZOBA, J.C.A.
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Obadina J. of the High Court of Lagos State in suit no. ID/2146/99 delivered on the 24th day of March 2004 granting in part the reliefs claimed by the plaintiff/Respondent.
The Respondent who was the plaintiff in the court below owns a large piece or parcel of land at Block N12 Ogudu G.R.A. in Kosofe Local Government Area of Lagos State covered by Certificate of Occupancy dated the 7th day of February 1979 and registered as No.13 page 13 Volume 1800 of the Register of Deeds at the Lands Registry Lagos. The Appellant who owns the adjacent plot met the Respondent in 1988 after he had written several letters to him offering to buy the land but the Respondent refused to sell. The Appellant then sought the permission of the Respondent to park his vehicles on the land which permission the Respondent granted and the Appellant then erected a fence to secure his vehicles.
In 1998, the Appellant again approached the Respondent requesting to buy the land. The parties discussed and reached an agreement that the land will be sold to the Appellant at N3.1 million, On verification of the title of the Respondent, the Appellant will pay N2.1 million and the balance of N1 million before 31st December 1998. The Respondent then told the Appellant to put his offer in writing. The Appellant’s offer is dated the 19th of September 1998 (Exhibit P7). The Respondent wrote Exhibit D1 accepting the offer but captioned the letter “Confirmation of offer”. The Respondent having confirmed or accepted the offer, the Appellant after verification of the Respondent’s title, wrote a cheque of NGN2,100,000.00 and a cover letter (Exhibits D6 and D7) but the Respondent neither replied the letter nor cashed the Appellant’s cheque. By a letter dated the 1st of October 1998, (Exhibit D2), the Respondent wrote to the Appellant to pay the market value of the land which he now put at N4.5million. By a letter dated the 18th of November 1998, the Respondent wrote to the Appellant saying he was no longer interested in selling the land because he wants to use it himself. Upon discovery that the Appellant was developing the land, the Respondent served notices on the Appellant to vacate the land and then instituted an action at the High court of Lagos State claiming as follows:
1. A declaration of statutory Right of occupancy parcel to all that piece or of land situate, lying and being at ‘Block W12 Ogudu G.R.A. in Kosofe Local Government Area of Lagos State dated the 7th day of February, 1979 and registered as No.13 at page 13 in volume 1800 of the Register of Deed kept at the lands Registry Lagos.
2. Perpetual Injunction restraining the Appellant by himself, his servant, agents, privies and otherwise however from continuing to trespass on the said piece of land.
3. Damages in the sum of N500,000 (Five Hundred Thousand Naira) for trespass committed by the Defendant on the said land.
In his amended statement of defence dated 16th day of April, 2003, the defendant/Appellant denied the averments in the plaintiff/Respondent’s Amended Statement of Claim. He asserted that the Respondent agreed to sell the land to him by accepting his letter of offer dated 19th September, 1998. He duly paid the 1st instalment of N2.1 million as agreed. The Appellant contended that the Plaintiff/Respondent cannot renege on the contract after acceptance and after payment of the consideration had been effected as agreed.
During the hearing, the Plaintiff/Respondent gave evidence for himself and called no other witness while the Defendant/Appellant also gave evidence for himself and called no other witness. The parties filed written addresses. On the 25th day of February, 2004, the court gave judgment and granted the Respondent’s relief 1 in the amended statement of claim as follows:-
The Plaintiff is entitled to the Statutory Right of Occupancy of all that large piece or parcel of land being at Block 12 Ogudu GRA. In the Kosofe Local Government Area of Lagos State and covered by Certificate of occupancy dated 7th day of February, 1979 and registered as No.13 at page 13 in Volume 1800 of the Register of deed kept at the Land Registry Lagos.
The Court dismissed Reliefs 2 and 3 in the Amended Statement of Claim and awarded the Respondent cost of N10, 000.00 (Ten Thousand Naira), Dissatisfied with the judgment, the Defendant/Appellant filed a Notice of Appeal dated 17th day of May, 2004 with three grounds of appeal. As is the practice in this Court, the parties filed and exchanged briefs of argument. Chief Adedeji Adekoya who settled the Appellant’s brief distilled four issues from the grounds of appeal as follows:
1. Whether the learned trial judge erred in law in holding that there was no valuable consideration after she found that there was an offer and acceptance by both parties. This issue is related to Grounds 1, 2 and 3 of the Notice of Appeal.
2. Whether a vendor in a valid contract of sale of the land can unilaterally repudiate the contract after the purchaser has fully complied with the agreed terms of the contract (This is distilled from ground 1 of the Notice of Appeal),
3. Whether the Plaintiff can still regain possession of the land by due process of law as advised or suggested by the trial judge (This stems out from grounds of the Notice of Appeal).
4. Whether the Plaintiff/Respondent’s action is not statute-barred in accordance with Section 12 Limitation Laws of Lagos State and by doctrine of laches, acquiescence and standing-by and also by the contract of sale agreed to by the parties. (This is related to ground 4 of Notice of Appeal).
Ayodele Akintunde Esq. who settled the Respondent’s brief on his part formulated three issues for determination as follows:
1. Whether the learned trial judge rightly held that there was no consideration which in turn meant that there was no valid contract capable of being enforced between the Appellant and the Respondent.
2. Whether the learned trial judge rightly held that the Appellant was a licensee and the Respondent could only regain possession of the land by due process of law.
3. Whether the learned trial judge rightly held that the Respondent’s action is not statute barred in accordance with Section 12 of the Limitation laws of Lagos State and rightly discountenanced the purported defences of laches, acquiescence and standing by.
The Appellant’s issues one & two are inter-related and they were argued together. I shall thus refer to both as Appellant’s issue one. The Appellant’s issues one and four are identical with the Respondent’s issues one and three. The Respondent’s issues are more succinct and to the point. I shall therefore adopt the Respondent’s issues in the determination of the appeal.
ISSUE ONE:
Whether the learned trial judge rightly held that there was no consideration which in turn meant that there was no valid contract capable of being enforced between the Appellant and the Respondent.
It was submitted for the appellant that the learned trial judge erred in Law in holding that there was no valuable consideration after she found that there was offer and acceptance by both parties. It was argued that a valuable consideration in the eye of the Law may consist either in some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility being suffered or undertaken by the other. It was further argued that this consideration does not only consist of profit by one party but also exists where the other party abandons some legal right in the present, or limits his legal freedom of action in the future as an inducement for the promise. Counsel relying on the cases of ANWASI VS. CHABASAYA (2000) 6 NWLR (Pt.661) 408, STABILINI & CO. VS. OBASI (1997) 9 NWLR (Pt.520) 293 submitted that it is irrelevant whether one party benefits but is enough that he accepts the consideration and that the party giving it does thereby undertake some burden or loses something which in contemplation of law may be of value. Counsel submitted that an agreement is not enforceable as a contract unless and until it is supported by some consideration and that once consideration passes the contract becomes binding on both parties and that agreement becomes enforceable under the law. Counsel argued that the Defendant/Appellant in line with terms and conditions of the Plaintiff/Respondents letter of acceptance Exhibit D1 issued his cheque for N2.1 Million Naira as the agreed 1st instalment and the balance to be paid in December 1998.
The Defendant/Appellant sent his cheque to the Plaintiff/Respondent at the usual address used by the parties in communicating with each other. It was contended that the fact that the defendant/Appellant sent his cheque for the amount agreed upon and both letter and cheque were received by the Plaintiff/Respondent make the contract binding on both parties; the fact that Plaintiff/Respondent ignored the cheque is of no consequence because a letter becomes effective upon delivery. Counsel argued that in the eye of the law, the contract was complete. He submitted that the Plaintiff/Respondent cannot approbate and reprobate. He argued that the fact that the plaintiff did not cash the cheque is not sufficient to invalidate the contract as the Defendant had suffered losses and forbearance and both parties agreed that the Defendant had developed the land.
Learned counsel for the Respondent on this issue submitted that generally, for an agreement or contract to be valid and enforceable, three main ingredients must be present. These are offer, acceptance and consideration. Dankula v. Shagamu (2008) ALL FWLR (Pt.413)1280 at 1307 – 1308 paras E -: B (CA). Counsel submitted that from the evidence before the trial court the Appellant made an offer via his letter of the 19th of September 19198 (Exhibit P7) to buy the property in dispute for the purchase price of NGN3,100,000.00 and said purchase price was to be paid as follows; NGN2,100,000.00 after formal verification of title and NGN1,000,000.00 before the 31st of December 1998. The Respondent accepted the offer via his letter of the 23rd of September 1998 (Exhibit D1). The question learned counsel submitted is “Whether the consideration has been met by, the Appellant? He submitted that from the evidence before the trial court, the consideration of NGN3,100,000.00 representing the purchase price of the property was never met by the Appellant. The Appellant sent the Respondent a cheque for the sum of NGN2,100,000.00 (Exhibit D7) representing the first instalment but the Respondent never cashed the cheque. There was thus no benefit to the plaintiff and also no evidence of any forbearance, detriment or loss suffered by the Defendant. There was consequently no consideration and no valid contract. Counsel cited Chabasaya v. Anwasi (2010) 10 NWLR (Pt.1201) 163 and Oyebadejo v. Olaniyi (2000) 5 NWLR (Pt.657) 485 @ 503.
Learned counsel urged the Court to reject the Appellant’s submission that his acts of making improvements to the land are tantamount to evidence of forbearance, detriment or loss as there was no evidence before the trial court to show that the Appellant obtained the consent of the Respondent to carry out the alleged developments. Counsel submitted that the Appellant’s act of building on the Respondent’s land without the permission of the Respondent because of his “belief” that he would buy the land was entirely at his own peril and that the maxim of quid quid plantatur solo solo cedit applies without qualification. He cited Francis v. Ibitoye (1936) N.L.R. 11 @ 12. Learned counsel urged the Court to hold that the learned trial judge rightly held that there was no consideration which in turn meant that there was no valid contract capable of being enforced between the Appellant and the Respondent.
I have considered carefully the submissions of the parties on this issue.
It is indeed trite law that the elements of a valid contract are offer, acceptance, consideration and a clear intention to enter into legal relations. See the court of Appeal judgment in Anwasi v Chabasaya (2000) 6 NWLR (Pt.661) 408 @ 417 A upheld by the supreme court in Chabasaya v Anwasi (2010) 10 NWLR (Pt.1201) 163.
In the case of Dankula v. Shagamu (2008) ALL FWLR (Pt.413) 1280 at 1307-1308 paras E – B (CA), consideration was defined “…. as the inducement to a contract. It is the cause, motive, price or impelling influence which induces a contracting party to enter into a contract; the reason or material cause of a contract; some right, interest, profit or benefit accruing to one party or some forbearance, detriment, loss or responsibility, given, suffered or undertaken by the other. It is a basic, necessary element for the existence of a valid contract that is legally binding on the parties. See: S.P.D.C. (Nig) Ltd v. Allaputa (2005) 9 NWLR (Pt.931), 475 at 499 para F – H and Oyewale v. Lawal (2008) Vol.37 WRN 128 at 138 Lines 20 – 45 (SC) Fabiyi J.S.C.”
On whether there was offer and acceptance, the learned trial Judge made the following findings:
“Prior to the Defendant’s offer Exhibit P7, both parties had met cordially and had agreed to the terms of the sale of the land. The plaintiff told him to make a formal offer. Exhibit D1 is the Plaintiff’s response to that offer letter.
I have carefully considered all the arguments of counsel and I have studied the exhibits. My conclusion is that Exhibit D1 is the Acceptance of the Defendant’s offer. There is nothing in Exhibit D1 to support a finding that the plaintiff meant his acceptance to O” conditional upon verification of his own documents, which he had given to the Defendant before he wrote Exhibit D1.
It was not a term of the negotiation or Plaintiff’s confirmation letter that time was of the essence and failure to verify within a certain time would void the transaction. The Defendant was not guilty of any delay in fulfilling his own side of the transaction. Exhibit P7 letter of offer is dated 19th September 1998. Exhibit D1 is dated 23rd September 1998. Letter of verification from Defendant’s solicitor Exhibit D5 is dated do October 1998 while Defendant’s letter enclosing his 1st instalment of N2.1million is dated 12th October 1998.
Plaintiff’s testimony under cross-examination that it was when he did not get the Defendant’s letter of verification and cheque that he made a counter offer of N4.5 million is therefore untenable.
Though the Plaintiff denied receiving Exhibits D6 and D7, the letter of verification and the cheque for the 1st instalment, I find as a fact that the Defendant sent the letter and cheque through the same mode of communication the parties had employed from the commencement of their negotiations i.e.to No. 4,Agbomalu Court Lagos. It is trite that a letter becomes effective upon delivery.
Even if Exhibit D1 is taken as confirmation of Defendant’s offer and not an acceptance, Defendant’s Exhibits D6 and D7 will constitute the acceptance of that offer'”
The reasoning, finding and conclusions of the learned trial Judge are in my view sound. I agree entirely with his Lordship. From which ever angle one looks at the circumstances, there was offer and acceptance.
On the question of whether or not there was valuable consideration, the learned trial Judge was of the view that since the Plaintiff did not cash the cheque of N2.1 million, there was no benefit to him. His Lordship also found that there was no evidence of some forbearance, detriment, loss or responsibility suffered by the Defendant. The lower court came to the conclusion that there was no consideration which in turn meant that there was no valid contract capable of being enforced between the parties’ with all due respect, I am of the view that his Lordships conclusion is misconceived. There was a meeting of the mind of the parties as to the consideration payable and the parties were consequently ad idem as regards the offer, acceptance and consideration. At that point if for example the buyer fails to pay the consideration, he would be in breach of the contract entitling the seller either to sue for damages for the breach or to repudiate the contract.
In Chabasaya v. Anwasi (2010) 10 NWLR (Pt.1201) 163 the Supreme Court per Mukhtar JSC @ 179 G – H stated thus:
“A Contract in which consideration has not been met is one that can be said has been breached and is unenforceable as consideration is one of the terms of the contract. This fact has been supported by evidence on both sides as stated above. As the consideration in this agreement has not been fulfilled the defendant/appellant was breach of the contract and the plaintiff/respondent had a legal right to sue the defendant for breach of contract”‘
Similarly, if the seller does not accept the consideration when offered, he would also be in breach of the contract and the buyer could sue for specific performance of the contract. As found by the learned trial Judge, the Appellant did make part payment of the consideration as agreed. The initial deposit of N2.1 million was paid but the Respondent claimed he did not see the letter and the cheque, thus the cheque was never cashed. On this the learned trial Judge observed:
“Though the plaintiff denied receiving Exhibits D6 and D7, the letter of verification and the cheque for the 1st instalment, I find as a fact that the Defendant sent the letter and cheque through the same mode of communication the parties had employed from the commencement of their negotiations i.e. to No. 4, Agbomalu Court Lagos. It is trite that a letter becomes effective upon delivery.”
This in effect means that the Respondent is deemed to have received the cheque. It is noteworthy that the Respondent did not challenge the finding by the trial judge that a letter becomes effective on posting. Payment of the balance as agreed was frustrated by the unilateral repudiation of the contract by the plaintiff/Respondent, long before the balance was due. The Respondent never returned the cheque to the Appellant. The Appellant performed his own side of the bargain. The Respondent left no one in doubt as to his reason for the repudiation of the contract. He wanted more money. He claimed he found court that the market value of the property was N4.5 million so he wrote the Appellant demanding N4.5 million and later wrote another letter stating he did not want to sell the property any more. Consideration is defined as some right, interest, profit or benefit accruing to one party or some forbearance, detriment, loss or responsibility, given, suffered or undertaken by the other. The cheque was paid to the Respondent as required by the agreement. Although the cheque was not cashed by the Respondent, he was in possession of it and the Appellant would be right to assume he could cash the cheque any time. The Appellant suffered some detriment or loss in that as long as the cheque was not returned to him he would consider the cash of N2.1 million not available for his use. with all due respect I am of the view that the learned trial judge erred in his finding that there was no consideration which in turn meant that there was no valid contract capable of being enforced between the Appellant and the Respondent. There was consideration. The Appellant made the part payment as agreed. In the case of Mini Lodge Ltd. v. Ngei (2009) 18 NWLR (Pt.1173) 254 @ 284 – 285 G – A, the Supreme Court per Adekeye JSC observed:
“The evidence before the court portrayed what could have been a simple contract of sale and transfer of property. An offer must be accepted in order to crystatlize into a contract. A contract of sale exists where there is a final and complete agreement of the parties on essential terms of the contract, namely the parties 1st the contract, the property to be sold, the consideration for the sale and the nature of the interest to be granted. Once there is agreement on these essential terms, a contract of sale of land or property is made and concluded.
In a contract for sale of property where part payment was paid, the law is that contract for purchase has been concluded and is final, leaving the payment of the balance outstanding to be paid. The contract for the sale and purchase are absolute and complete for which each party can be in breach for non-performance and for which an action can be maintained for specific performance.”
There was a final and complete’ agreement between the parties on all the essential terms of the contract including the consideration. The agreed sum was paid over to the Respondent. It was too late in the day for the Respondent to repudiate the contract in the quest for more money. He should have verified the market value of the property before committing himself to N3.1 million. The contract of sale had been made and concluded. The Respondent cannot unilaterally resile from it as he attempted to do. Issue one is resolved in favour of the Appellant and against the Respondent.
ISSUE TWO:
Whether the learned trial judge rightly held that the Appellant was a licensee and the Respondent could only regain possession of the land by due process of law.
On this issue, learned counsel for the Appellant submitted that the issue of regaining possession or issue of statutory notices have been passed and superseded by the contract of sale already entered into by the parties and what the court had found to be in existence. Counsel further submitted that once the issue of consideration is decided in favour of the Appellant, the basis of the Respondent regaining possession of the land by due process of law would have been defeated because the existence of a valid contract between the Appellant and Respondent.
The Respondent on this issue submitted that it is clear from the evidence before the trial court that the Appellant at all material time acknowledged the Respondent as the owner of the property in dispute and sought his permission to park his vehicles on the property. It was submitted that other than the license or permission to park his vehicles on the property the Respondent never transferred his right, interest and title in the said property to the Appellant or gave his consent to the purported developments carried out by the Appellant on the property. Learned counsel for the Respondent urged the court to hold that since there was no valid contract of sale of the property in dispute capable of being enforced between the Appellant and the Respondent, the Appellant was a mere licensee and has no interest in the land. Counsel finally submitted that the learned trial judge (though obiter) rightly advised the Respondent that to regain possession he must follow due process and urged the Court to hold that the Appellant was a licensee and the Respondent could only regain possession of the land by due process of law.
First I must concede that the opinion of the learned trial judge on the issue of regaining possession is mere obiter without any impact as such on the judgment. None the less, learned counsel for the Appellant is right that this court having determined that the lower court was wrong in its conclusion that that there was no consideration, the gratuitous advise is uncalled for. The existence of an enforceable contract between the Appellant and Respondent renders the issue of the Respondent regaining possession by due process untenable. This issue is also resolved in favour of the Appellant and against the Respondent.
ISSUE THREE:
Whether the learned trial judge rightly held that the Respondent’s action is not statute barred in accordance with Section 12 of the Limitation Laws of Lagos State and rightly discountenanced the purported defences of laches acquiescence and standing by.
On issue two above, learned counsel for the Appellant made an unusually brief and rather off key submission thus: “At page 138 of the Record paragraph 4, the trial judge held that the Defendant has been in possession for over 20 years without payment of rent and had developed the land to the knowledge of the Plaintiff. He has also entered into agreement to purchase the land and the contract of sale has been signed sealed and delivered. We therefore submit that the claimant should be statute-barred since he has allowed the Defendant to take all the valuable steps and spend a lot of money to develop the land without challenging him. All these developments by the Defendant/Appellant are to the knowledge and awareness of the Plaintiff/Respondent.
Learned counsel for the Respondent on the above issue submitted that the Appellant never pleaded the defences of laches, acquiescence and standing by in his pleadings at the trial court and could not lawfully canvass these defences before the trial court. Counsel referred to Arinze v. First Bank (Nig) Ltd. (2000) 1 NWLR (Pt.639) 78 at 98 para F where the court of Appeal held that an appellant who failed to plead and canvass a defence at the trial is precluded from raising it on appeal. On the Appellant’s submissions that the Respondent’s action is statute barred in accordance with Section 12 of the Limitation Laws of Lagos State, it was argued that in considering whether an action is statute barred, the paramount consideration is the determination of the cause of action and when it accrued. Julius Berger Nig. Plc v. Omogui (2001) 15 NWLR (Pt.736), 401 at 417. Citing further the cases of Egbe v. Adefarasin (1987) NWLR (Pt.47) pg.1 at pg. 21 and Hassan v. Babangida (2010) 17 NWLR (Pt.1223), 547 at 619 to 620 paras A – B, learned counsel submitted that in determining if an action is statute barred, what the Court must look at are the Writ of Summons and the Statement of Claim alleging when the wrong which gave the plaintiff a cause of action was committed and by comparing that date with the date on which the Writ of Summons was filed. This can be done without taking oral evidence from witnesses. If the time on the writ of Summons is beyond the period allowed by the limitation law then the action is Statute barred. Counsel argued that in the instant appeal, the claim of the Respondent in his Statement of Claim is that he owned the property the subject of this appeal as evidenced by his title documents prior to 1985 when the Appellant approached him and asked for permission to park his vehicles on the land. The Appellant went ahead to fence the land to secure his vehicles. There was no dispute between the parties until 1998 when the Defendant/Appellant offered to buy the land and negotiations broke down. Learned counsel urged the Court to hold that the Respondent’s action is not statute barred because his cause of action accrued in 1998 when the negotiations with the Appellant over the sale of the property in dispute broke down and the Respondent promptly filed an action on the 13th of August 1999 via the Writ of Summons and Statement of Claim of the same date.
The law relating to the defences of laches, acquiescence and standing by is clear. Not only that the defences must be pleaded, full facts and particulars must be pleaded: Adeniran v. Ajao (2001) 12 SCNJ 337. The full facts and particulars which must be pleaded by the Defendant must include details to prove that there had been time lapse between his possession of the land in dispute and the adverse title challenging his possession. Ezekwesili v. Agbapuonwu (2003) 9 NWLR (Pt.825) 337. In his judgment at page 135 of the record, the learned trial judge held that the Defendant only pleaded statute bar in paragraph 20 of his amended statement of Defence and that a Defendant who did not specially plead the defences of laches, acquiescence and standing by cannot rely on them in the proceedings. The Appellant did not plead the defences. The learned trial Judge is right that the defences are not available to him. The learned trial Judge on the same page further held that having compared the date when the cause of action accrued September 1998 when the Defendant offered to buy the land and negotiations broke down and the date the writ was filed,August 1999, the Plaintiff’s claim was not statute barred. I agree with the learned trial Judge that the claim was not statute barred. The Appellant did not have anything to urge the court on this issue, I think he is aware that his position on the point is very weak. The issue is resolved in favour of the Respondent.
In the final result, I hold that the trial judge erred in his conclusion that there was no consideration. All the ingredients of a valid contract for sale of land were satisfied. The learned trial Judge ought not to have granted relief one in the amended statement of claim of the Respondent. Having disposed of his interest in the land, the Respondent cannot turn round to claim a declaration to the Statutory right of occupancy over the disputed land. This appeal is meritorious. It is hereby allowed. The judgment of Obadina J. of the High Court of Lagos State in suit no ID/2146/99 delivered on the 24th day of March 2004 is set aside with respect to relief one of the amended statement of claim. In its place the Respondent’s suit is dismissed. I make no order as to costs.
SIDI DAUDA BAGE, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother CHINWE EUGENIA IYIZOBA, JCA.
I agree with the reasoning and conclusion reached therein and have nothing extra to add.
I too set aside with respect to relief one of the amended statement of claim. In its place the Respondent’s suit is dismissed. I make no order as to costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother Chinwe Eugenia Iyizoba JCA. I agree with the reasoning and conclusion reached therein and have nothing extra to add.
I too dismiss the appeal and also abide by the consequential orders made in the lead judgment.
Appearances
Appellant not represented.For Appellant
AND
Ayodele Akintunde Esq. with A. Gbadebo (Miss) and N. E. Ebeleju (Mrs)For Respondent
