DALFAM NIGERIA LIMITED v. OKAKU INTERNATIONAL LIMITED & ORS (2014)

DALFAM NIGERIA LIMITED v. OKAKU INTERNATIONAL LIMITED & ORS

(2014)LCN/7461(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 22nd day of January, 2014

CA/A/100/2009

RATIO

LAND LAW: SALE OF LAND; WHEN IS A CONTRACT FOR THE SALE OF LAND CONCLUDED

LAND LAW: EQUITABLE INTEREST IN LAND; WHETHER A PURCHASER OF LAND WHO IS IN POSSESSION OF LAND BY UNREGISTERED INSTRUMENT AND HAS PAID THE PURCHASE MONEY HAS ACQUIRED AN EQUITABLE INTEREST IN THE LAND

But the law had been stated differently, in that a vendor in possession by virtue of an unregistered instrument, and who paid the purchase price, can prove that he acquired an equitable interest in the land. Bello JSC, as he then was, in OKOYE VS. DUMEZ (1985) 1 NWLR (Pt. 4) 783 at 790 held that – “It is trite law that where a purchaser of land or a lease is in possession of the land by virtue of a registrable instrument which has not been registered and has paid the purchase money or rent to the vendor or the lessor, then in either case the purchaser has acquired an equitable interest in the land..A registrable instrument which has not been registered is admissible to prove such equitable interest and to prove payment of purchase money or rent.” per. ABUBAKAR DATTI YAHAYA, J.C.A.

LAND LAW: CONTRACT OF SALE OF LAND; WHETHER THE PURCHASER WILL HAVE NO RIGHT TO ENFORCE SPECIFIC PERFORMANCE WHERE THE PURCHASE PRICE IS NOT FULLY PAID

Thus, even if the Deed of Assignment is not registered, as it should, still, it does not derogate from the fact that the purchaser had acquired an equitable interest, capable of being converted into a legal interest in an action for specific performance. Now it may be argued that the payment of the purchase price has to be in full, before the vendor could acquire the equitable interest in the property. Indeed, Ogundare JSC in ODUSOGA VS. RICKETTS (SUPRA) page 5 held that – “But where the purchase price is not fully paid, the purchaser will have no right to enforce specific performance.” per. ABUBAKAR DATTI YAHAYA, J.C.A.

LAND LAW: CONTRACT OF SALE OF LAND; WHETHER WHERE PART PAYMENT OF THE PURCHASE PRICE IS MADE IN A CONTRACT OF SALE OF LAND, THE CONTRACT WOULD HAVE BEEN CONCLUDED, LEAVING THE BALANCE TO BE PAID

The legal position now, is that on a sale, and subsequent possession of the land, an equitable interest in the property capable of being converted into a legal estate by specific peformance, is acquired. See THOMPSON VS. AROWOLO (SUPRA) at page 352. Also, where part payment of the purchase price is made in a contract of sale of land, the contract would have been concluded, leaving the balance to be paid. So an action for specific performance is available against a party failing to honour the contract – KACHALLA VS. BANKI (2006) 8 NWLR (Pt.982) 364 SC; NSIEGBE vs. MGBEMENE (2007) 10 NWLR (Pt.1042) 364 SC and MINILODGE LTD VS. NGEI (2010) ALL FWLR (Pt.506) 1806 at 1832 SC. BENJAMIN OHIAERI VS. ALHAJI YUSUF (2009) 2 – 3 SC (Pt.11) 145 at 155 or (2009) 6 NWLR (Pt. 1137) 207 at 224 Per Tabai JSC, held directly and succinctly, that “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 purchaser, acting within the terms of agreement makes full or part payment of the purchase price to the vendor, and in furtherance thereof, put in possession, he has acquired an equitable interest in the property and which interest value is as high as a legal estate, and cannot therefore be overridden by a subsequent legal estate created by the same vendor, or his legal representative in favour of another purchaser.” per. ABUBAKAR DATTI YAHAYA, J.C.A.

Before Their Lordships

ABUBAKAR DATTI YAHAYAJustice of The Court of Appeal of Nigeria

JOSEPH TINE TURJustice of The Court of Appeal of Nigeria

MOORE A. A. ADUMEINJustice of The Court of Appeal of Nigeria

Between

DALFAM NIGERIA LIMITEDAppellant(s)

AND

1. OKAKU INT’L LIMITED
2. MIN. OF FED. CAP. TERRITORY
3. MINISTER FOR FED. CAP. TERRITORY
4. THE F.C.D.ARespondent(s)

ABUBAKAR DATTI YAHAYA, J.C.A.(Delivering the Leading Judgment): This appeal is from the judgment of the High Court of the Federal Capital Territory in consolidated Suits Nos. FCT/HC/CV/207/02 and FCT/HC/CV/407/02, delivered on the 13th day of May 2008.

The 1st respondent herein, as plaintiff, instituted the said two Suits at the High Court of the Federal Capital Territory Abuja. The two Suits were consolidated. The appellant herein, filed a defence and a counter claim to the two Suits. It was the dissatisfaction of the judgment by the appellant that led to this appeal.

The first respondent was allotted Plot No.697 at Area BC Asokoro District Abuja, covered by certificate of Occupancy No.FCT/ABU/MISC 3562. The 1st respondent failed to develop the property within the stipulated period, and the 3rd respondent threatened to revoke it. In order to avoid this revocation, the 1st respondent agreed to sell the Plot No. 697 to the appellant for the sum of N28,000.000, They executed a Deed of Assignment and the 1st respondent donated a Power of Attorney to the appellant. The two documents are Exhibits J1 and J2 respectively. The purchase price was reflected as paid in Exhibit J1. The 1st respondent let the appellant into possession, and it commenced development. It made a part-payment of N12,000.000. When a demand for the payment of the balance was not honoured, the 1st respondent approached the 4th respondent for a sub-division of the plot. This was done and Plot No. 697A, was carved out of the entire Plot No. 697, for the appellant. The remainder was given out to other persons.

The trial court set aside this sub-division of Plot No. 697, by the 4th respondent, but awarded a portion of the original Plot 697, to the appellant as Plot No. 697A, which is the portion developed by the appellant. The court restrained the appellant from the portion of Plot No. 697 that was not developed by it. Hence this appeal.

In keeping with the Rules of this Court, the parties filed their written briefs. The appellant’s brief was filed on the 18/6/2010. The 1st respondent filed its brief on the 6/12/11 but was deemed filed on the 16/10/12. The 2nd – 4th respondents filed their joint brief on the 19/3/13 but was deemed filed on the 4/6/13.

The appellant’s brief identified 4 Issues for determination, which are –

1. Whether the trial court was right in holding that the 1st respondent could/did rightly apply to the 4th respondent (3rd defendant) for subdivision of Plot No. 697 (into Plot No.697A) after the appellant had acquired an equitable interest in Plot No.697.

2. Whether the lower court had rightly applied the decision in BIYO VS. AKU to this case to discharge the 1st Respondent from liability to perform the contract.

3. Whether the non-payment of the full purchase price of the property vitiated the binding effect of the sales contract between the 1st Respondent and the Appellant.

4. Whether the judgment is not against the weight of evidence adduced before the Court.

In the 1st respondent’s brief settled by Mr. S. Zibiri, four issues were also distilled. They are –

1. Whether the lower court was right in holding that the 1st Respondent did rightly apply to the 4th Respondent for sub-division of Plot No. 697 into Plot (697A) in the light of the circumstances of the case.

2. Whether the court below rightly applied the judicial authority of BIYO VS. AKU and other relevant authorities to this case in deciding that the 1st Respondent was not liable to fully perform a fundamentally breached contract of sale of land.

3. Whether failure to fulfill fundamental terms and condition of a contract of sale of land cannot be said to have frustrated the full implementation of the contract considering the facts of the instant case.

4. Whether the judgment of the lower court is well supported by the weight of evidence adduced before the lower court.

The 2nd – 4th respondents’ brief was settled by Mr. J. O. Abasi, and the four issues distilled for resolution therein, are exactly the same as those distilled by the 1st respondent. Considering the grounds of appeal filed, I find the issues identified by the parties to be similar. I shall therefore utilize the issues identified by the appellant in resolving this appeal.

ISSUE NO 1

Whether the trial court was right in holding that the 1st respondent could/did rightly apply to the 4th respondent (3rd defendant) for sub-division of Plot No. 697 (into Plot No. 697A) after the appellant had acquired an equitable interest in Plot No. 697.

On this issue, learned counsel for the appellant submitted upon relying on the cases of UNION BANK PLC VS. ERIGBUEM (2003) FWLR (Pt.180) 1365 at 1399; DOHERTY VS. IGHODARO (1997) 11 NWLR (Pt.530) 694 and BIYO vs. AKU (1996) 1 NWLR (Pt 422) 1 at 38, that an agreement to sell land is complete and concluded when the parties, the subject matter, the nature of the transaction and the considerations are agreed upon. He then referred to exhibits J1 and J2 to say that they established the agreement to sell the land in question, between the appellant and the 1st respondent. Since this is the case, it was erroneous he argued, for the trial judge to hold as he did at page 400, lines 12 – 25 of the record, that exhibits J1 and J2 only show an acknowledgment of receipt of purchase price of the property and nothing more. He cited THOMPSON vs. AROWOLO (2003) FWLR (Pt.164) 315 to back his position. He also referred to page 398 lines 5 – 6, 401 lines 27 – 31 and 402 lines 1 – 15 to submit that the appellant had made part payment of the agreed consideration, was put in possession of Plot No. 697 and had commenced development on it as agreed by the parties, before the 1st respondent wrote Exhibit J6 to the appellant. The appellant he argued, had acquired an equitable interest in Plot No. 697 which is capable of being converted to a legal estate by specific performance – SHOBAJO vs. IKOTUN (2003) FWLR (Pt.172) 1751 at 1764 – 5 and NSIEGE VS. MGBEMENA (2007) ALL FWLR (Pt. 372) 1769 at 1779.

Learned counsel also submitted that since the appellant had acquired an equitable interest in Plot No. 697 capable of being converted to a legal estate, the 1st respondent had no right to request the 4th respondent to ‘carve’ out Plot No. 697A and to sub-divide the rest into 15 Plots for the benefit of the 1st respondent. To allow it to do so, will be inequitable as it would be allowed to benefit from its own wrong doing – OGBEIDE VS. OSIFO (2007) ALL FWLR (PT.365) 548 AT 562 – 3; CDC NIG. LTD. VS. SCOA NIG. LTD (2007) ALL FWLR (PT.363) 1 AT 64 – 65 AND BROSETTE MANUFACTURING NIG. LTD. VS. KEMOBOLA LTD. (2007) ALL FWLR (PT.379) 1340 at 1370 – 80. Since the trial court had set aside the sub-division and revocation of certificate of Occupancy on Plot No. 697, the Plot had reverted to its original status and the 1st respondent had no legal right to ask that it be carved out, he argued. He urged us to resolve this Issue in favour of the appellant.

For the 1st respondent, it was submitted that the appellant had failed to pay the balance of the purchase price and therefore, it did not at the time the 1st respondent applied for sub-division of the plot or thereafter, acquire an equitable interest in the land capable of being converted to a legal interest. Reliance was placed on the case of ODUSOGA VS. RICKETTS (1997) 7 NWLR (Pt.511) 1 at 5. On that basis, learned counsel argued that there is nothing in law or at equity that prohibits the 1st respondent from applying to the 4th respondent for a sub-division of the plot of land.

The submission of the learned counsel for the 2nd – 4th respondents on this Issue No.1, is virtually identical to that of the submission on behalf of the 1st respondent. I therefore do not find it necessary to re-produce it again.

To begin with, the answers to the prayers of the plaintiff (1st respondent) given by the trial judge in Suit No.FCT/HC/CV/307/02, conflict with the answers given by the trial judge in suit No. FCT/HC/CV/407/02 and this has added some form of confusion. Answer (a) in suit No.FCT/HC/CV/307/02 states –

“The sub-division of Plot 697 made by the 1st – 3rd Defendants and the subsequent sharing of same among the plaintiff and 4th Defendant as evidenced by Exhibit F is of no effect because same was carried out when the matter was already pending in court.” (Underlines mine).

To me, the above clearly shows that the trial judge had nullified the sub-division of Plot No. 697, into 697 and 697A, and the sharing of No. 697 and No. 697A to the 1st respondent and the appellant respectively. Yet he went on to say in Answer (c) to suit No. FCT/HC/CV/407/02 that –

The revocation of the Plot 697 had already been nullified, the 4th defendant can exercise right of ownership on Plot 697A while the Plaintiff can exercise right of ownership on the remaining undeveloped part of the land.

In other words, the trial judge is recognizing the sub-division of the Plot into 697 and 697A. In my view, this is not feasible, because with the nullification of the sub-division, there is no longer in existence, Plot No. 697A for which the appellant is restricted to, and another Plot 697 to which the 1st respondent can exercise ownership. With the decision of the trial judge, there is only one Plot in existence, and this is Plot No.697. This is tied to Issue No, 1 because once the sub-division by the 4th respondent (3rd defendant) was nullified, it becomes a moot point, whether the 1st respondent could/did rightly apply for the sub-division of the plot. Once the ultimate goal of the application is to sub-divide the plot, and the plot can no longer be sub-dividable or has been nullified, then the mere fact of application rightly or wrongly, will be academic as there will be no useful result.

The law is clear. Once the parties, the subject matter and the nature of the transaction are identified, and the purchase price as consideration is agreed upon, then a contract for the sale of the land is concluded. See UNION BANK OF NIGERIAN PLC vs. ERIGBUEM (2003) FWLR (Pt.180) 1365 at 1399.In the instant appeal, the 1st respondent as vendor and the appellant as purchaser, are the identified parties for the sale of land known as Plot No. 697 Area BC Asokoro District, Abuja and covered by Certificate of Occupancy No. FCT/ABU/MISC/3562, at a consideration of N28 million. These are to be found in Exhibits J1 as the deed of Assignment, and J2 as the Power of Attorney.

However, the trial judge at page 400, lines 12 – 25 of the record, placed reliance on W.A.C VS. YANKARA (2008) 4 NWLR (Pt.1077) 323 at 326 and held that the Deed of Assignment and the Power of Attorney, being registrable instruments but which were not, are merely an “acknowledgment of receipt of purchase price of the property in question but nothing more.” They did not “confer any interest in the property” on the appellant, and that the 1st respondent could apply to the “1st – 3rd Defendants to sub-divide Plot 697.”

“It is trite law that where a purchaser of land or a lease is in possession of the land by virtue of a registrable instrument which has not been registered and has paid the purchase money or rent to the vendor or the lessor, then in either case the purchaser has acquired an equitable interest in the land..A registrable instrument which has not been registered is admissible to prove such equitable interest and to prove payment of purchase money or rent.”

On the strength of the above, exhibits J1 and J2 cannot amount to mere receipts of money only. They have clearly also, shown that the appellant had acquired an equitable interest in Plot No. 697, contrary to the position of the trial judge. Also, all the respondents herein, have placed reliance on the case of ODUSOGA VS. RICKETTS (SUPRA) which held 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 vendor to convey legal title to him..”

Now it may be argued that the payment of the purchase price has to be in full, before the vendor could acquire the equitable interest in the property. Indeed, Ogundare JSC in ODUSOGA VS. RICKETTS (SUPRA) page 5 held that –

“But where the purchase price is not fully paid, the purchaser will have no right to enforce specific performance.”

He did not say specifically, that an equitable interest had not been acquired. He also placed reliance on the case of HEWE VS. SMITH (1884) 27 ChD 89. But in this case of Hewe vs. Smith, the contract of sale had stipulated that the purchase price should be paid on a day named, and if not paid, the vendor will be at liberty to re-sell and recover any deficiency in price as liquidated damages. In the instant appeal, there is no such stipulation whatsoever, and so it is not on all fours with Hewe Vs. Smith (Supra) relied upon in ODUSOGA VS. RICKETTS (SUPRA).

That is not all. Ogundare JSC in ODUSOGA VS. RECKETTS (SUPRA) went on to state that –

“Where however Part Payment of the purchase Price was made and the balance is tendered within the stipulated time, or in the absence of a stipulated time, within a reasonable time, the vendor cannot resile from the contract of sale, and the purchaser in possession will be entitled to a decree of specific performance.”

Exhibit J1 did not stipulate when the purchase price was to be fully paid. Infact, it stated that the payment of the purchase price had been acknowledged. But there is no dispute about the fact that only part payment of the purchase price was made in the sum of N12 million, out of the total of N28 million. However, there is nothing to show the reasonable time when the balance was to be paid, taking into consideration that in essence, the appellant was to commence development of the Plot in question to avoid its being revoked by the allotting authorities.

However, the decisions of the Supreme Court that have come up after ODUSOGA VS. RICKETTS was decided, have de-emphasised the issue of full payment of the purchase price.

As a result of the evidence led by the plaintiff (1st respondent) and the 4th defendant (appellant) through DW1, the trial judge made correct findings at page 401 of the record, that there was no dispute in the evidence of “plaintiff and 4th Defendant” who established that –

After the execution of Deed of Assignment and irrevocable Power of attorney, the 4th Defendant was put in physical possession to commence development without even making any part payment of the agreed price of N28 million. The N12 million part payment made by the 4th Defendant was made after the 4th Defendant commenced development. The substance of the agreement between the plaintiff and 4 Defendant is not only N28 million purchase price, but the 4th Defendant is to take possession of Plot 697 and commence development to avert impending revocation by the 1st – 3rd Defendants. This explains the reason why the plaintiff put the Defendant in possession without paying a dime and even executing Deed of Assignment and Irrevocable Power of Attorney in its favour. It is not in doubt that the 4th Defendant made N12 million part-payment remaining the balance of N16 million. There is no contradictory evidence to the fact that 4th Defendant expended over N15 million on plot 697…”

The trial judge had therefore found correctly, that the root and essence of the contract of sale between the appellant and the 1st respondent, was to develop the plot in question, to such a state, that the allotting authorities would not revoke the grant.

The payment of the purchase price was not therefore as crucial, since the appellant was put in possession of the plot, before it even paid anything. It is obvious, that up to the time of the purported sub-division of the plot, the grant to the 1st respondent was not revoked, showing that the essence of the contract had been achieved, due to the development put up by the appellant on the plot in question. The 1st respondent as the vendor could therefore not resile as he purported to do, by sub-division and assigning to others.

It is crystal clear, that the 1st respondent as the vendor, rode on the back of the appellant to prevent the plot of land from being revoked. It had assigned the entire plot of land to the appellant, collected N12 million and got the appellant to develop it, to the extent that it was not revoked. How can it now create a false position by saying that the development put up by the appellant was not adequate? And that it had to sub-divide and allocate to others to prevent revocation? There is nothing before the court, to show that the allotting authorities (2nd – 4th respondents) were not satisfied with the development put up by the appellant. It is not on record also, that the appellant was to develop every inch of the land to avoid revocation of the plot, and that when it developed part of it only, the plot would still be revoked. Furthermore, section 51 of the Land Use Act, talks of “development.” It does not state that every inch of the plot has to be developed. If by section 51 of the Land Use Act, “development” includes a road or even a drainage, certainly a structure of row-housing which had reached roofing level, must be development within the meaning of that section, since the value of the plot had definitely been enhanced, residentially. The question must also be asked. If the developed part of the plot was carved out, leaving the undeveloped part, what stops the allotting authority from revoking the undeveloped part since every part of it, as argued by the respondents, is supposed to be developed? It would surely mean therefore, that the undeveloped part was still liable to be revoked as at the time of the subdivision and so the sub-division could not have been a way of stopping or preventing the allotting authorities from revoking same.

In the absence of a letter or document from the allotting authorities (2nd – 4th respondents) that they were not satisfied with the development put up by the appellant so far, and they would revoke the plot, the 1st respondent had no cogent reason why it would go and lock heads with the other respondents, to apply for a sub-division, in order to resile from the contract of sale it had entered into, and deny the appellant a substantial part of the land which is the subject of the agreement between them. If the appellant had not put up the development on the land, and at the time it did, there might have been a revocation of the entire plot even before the purported sub-division and the 1st respondent would have had nothing, nothing to even subdivide. As it is, there is a valid contract of sale, it had collected N12 million, and still has the balance to collect. It cannot be allowed to reap, where it did not sow, to make more money from a false scenario it created, in order to benefit financially, out of what it had already assigned. As at the time the respondent “exercised” the option of sub-dividing the plot No. 697, it had no plot to sub-divide because it had already sold all of it. The trial court was therefore not right when it held that the 1st respondent could/did rightly apply to the 4th respondent for the sub-division of Plot No. 697 (into Plot No. 697A) after the appellant had acquired an equitable interest in Plot No. 697. Issue No. 1 is thus resolved in favour of the appellant and against the respondents.

ISSUES NOS. 2 AND 3

2. Whether the lower court had rightly applied the decision in BIYO VS. AKU to this case to discharge the 1st respondent from the liability to perform the contract.

and

3. Whether the non-payment of the full purchase price of the property vitiated the binding effect of the sales contract between the 1st respondent and the appellant.

Learned counsel for the appellant submitted that the trial judge had misapplied the case of BIYO VS. AKU, in that although he had found that the appellant had made part payment of the purchase price, he still held that the 1st respondent is entitled to consider himself discharged from liability to perform the contract. That is, that the appellant is not entitled to specific performance. This, he argued, is contrary to the position in BIYO VS. AKU, and also EDOSA VS. ZACCALA (2006) ALL FWLR (Pt.306) 1881 at 1910. He argued that what the 1st respondent is entitled to, is specific performance in terms of the balance of the purchase price, in the event of a breach, especially as there was no failure to pay the agreed purchase price, no breach of the contract, the emphasis being on development of the plot, to save it from revocation.

Learned counsel also submitted that assuming there was failure to pay the purchase price, a breach of the contract, and a repudiation of the contract by the appellant, the options of the 1st respondent is either to consider itself discharged from the obligations under the contract or claim damages for the breach. He argued that the 1st respondent did not exercise any of these options. This is because the two Suits it instituted, were not for damages for breach of contract. The 1st respondent also did not consider itself discharged from liability to perform the contract but rather, it was infact to meet its obligation to the appellant, under the contract, as seen from Exhibit J6. Since the 1st respondent did not exercise the options available to it, the contract remains valid – EDOZA VS. ZACCATA (SUPRA).

On non-payment of the balance of the purchase price, counsel submitted that once there is a valid and subsisting contract of the sale of land, as shown in Exhibits J1 and J2, an equitable interest in favour of the appellant has been created, and the non-payment of the full purchase price, did not vitiate the contract.

The submissions of counsel for the 2nd – 4th respondents, are in pari materia with those of the 1st respondent. I shall therefore take them together. The two learned counsel for the 1st and the 2nd – 4th respondents, referred to the judgment of the lower court at page 402 of the record which they said, has captured the substance of the agreement between the 1st respondent and the appellant, which is for the appellant “to take possession of Plot No, 697 and commence development to avert impending revocation of title to the land by the 2nd – 4th respondents. This explains the reason why the 1st respondent put the Appellant into possession without paying a dime of the agreed purchase price and even executed Deed of Assignment and Irrevocable Power of Attorney in the appellant’s favour.” They went on the submit further, that –

“Significantly, full payment of the purchase price and substantial development of the plot of land constitute the foundation of the contract. Unfortunately, the Appellant breached both fundamental terms of the contract…”

It was because of these, they argued, that the trial court applied BIYO VS. AKU (SUPRA) and ODUSOGA VS. RICKETS (SUPRA), and held that the 1st respondent was not liable to fully perform the contract, fundamentally breached by the appellant. At page 9 of the 1st respondent’s brief, it was submitted that –

“The facts of the present case is (sic) simply that the appellant failed to embark on the development of the entire plot of land and also could not pay the total purchase price agreed between he (appellant) and the 1st respondent. According to the finding of the court below, the appellant…was only able to undertake development of a part of the plot of land…”

They argued therefore, that the trial court was right when it discharged the 1st respondent from liability to perform fully, the contract.

On non-payment of full purchase price, counsel for the 1st – 4th respondents submitted that the purchase price is a consideration for the contract of sale of land, and where it is not “fully paid” there can be no valid sale, notwithstanding that the purchaser is in possession. The case of ODUSOGA VS. RECKTTS (SUPRA) was extensively quoted and relied upon. Since the appellant had not paid in full the purchase price, there was no sale of the land in dispute, they argued.

The lead judgment of BIYO VS. AKU (1996) 1 NWLR (Pt.422) 1 was a judgment of the Court of Appeal and the lead judgment was delivered by OKEZIE JCA (as he then was). He was direct at page 25 paragraphs B – C, when he held that –

“….where part payment as in the instant case is made, the law is clear.
It is, that the contract for the Purchase has been concluded and is final, leaving the payment of the balance of the Purchase Price outstanding to be paid. The contract for the sale and purchase as in the instant case for the purchase of Plot 2 Adikpo is absolute, and complete for which each party can be in breach for non performance and for which action lies for specific performance on breach…. Each party has a right to sue in breach of contract one against the other.”

This is the holding in the lead judgment and it unequivocally stated that the part-payment of the purchase price in a contract for the sale of land, does not vitiate that contract. The remedy available to the vendor, is to sue for the balance of the purchase price, but not for him to resile from the contract. The trial judge failed to avert his mind to this and to apply it. Instead, he picked up the contribution of Honourable Justice Ayoola JCA (as he then was) at page 39, and misapplied it to the instant case. Justice Ayoola held –

“Where a Purchaser fails to pay the purchase money agreed to by the parties, the vendor is entitled to treat the breach as a repudiation of the contract by the purchaser. The vendor may in such circumstance consider himself discharged from the liability to perform the contract ”

Clearly therefore, the learned Justice Ayoola, did not say that “part payment of purchase price agreed to by the parties”, will enable the vendor to treat it as a repudiation of the contract and discharge himself from its performance. In other words, the lead judgment and the contribution of Hon. Justice Ayoola, are not at all in conflict, and the trial judge was wrong to seem to indicate that position. After all, although there was part payment of the purchase price in BIYO VS. AKU, yet Justice Ayoola still held at page 39, that

“the respondent had not failed to perform her side of the bargain”

which would have been the case, if part payment of the purchase price discharges the vendor from liability to perform the contract.
In the instant case, the trial judge had found that the appellant had made part payment of N12 million to the respondent, and had been put in possession. It did not fail to pay the purchase price. On that score, the 1st respondent is not entitled to regard the non-payment of the balance of the purchase price, as a repudiation of the contract by the appellant, and so discharge itself from liability to perform it, and to go ahead and deny the appellant the entire plot it had assigned. See GEGE vs. NANDE (2006) 10 NWLR (Pt.988) 256; OHIARI VS. YUSUF (SUPRA) and EDOSA VS. ZACCALA (SUPRA).
Further, from the facts of this case, the 1st respondent did not consider itself discharged from the contract. It was categorical in Exhibit J6, that the purpose for which it sought for a sub-division, was to

“enable us meet our obligation to you.”

Again, if the 1st respondent had considered itself discharged from the contract, and if there was no sale of the land in dispute as the respondents have submitted at page 14 of the 1st respondent’s brief, and paragraph 4.32 of the non-paginated brief of the 2nd – 4th respondents, because the full purchase price was not paid, then on what basis, is the appellant to hold on to part of the land sold to it and upon which it had erected the structure? It is because the 1st respondent considers that there is a valid contract of sale of the land, and that the non-payment of the balance of the purchase price, has not vitiated the valid contract of sale of land they had entered into.

The respondents have also copiously re-produced extracts from the case of ODUSOGA VS. RICKETTS (SUPRA). Apart from the views expressed on in that case, whilst I was resolving Issue No 1, which is to the effect that ODUSOGA VS. RICKETTS does not strictly represent the law now, the excerpts at pages 13 to 14 are not applicable to this instant case, because the principles of law adumbrated in the excerpts, are all on ‘customary law ‘or’ native law and custom’ which are not the subject of this instant case. Further, in ODUSOGA VS. RICKETTS, the land in question had already been divided into four plots even before the contract of sale, as opposed to the instant case. That case therefore does not apply to the circumstances of this case.

At page 7 of the 1st respondent’s brief, the respondents agreed with the finding of the trial judge, that the “substance of the agreement between the 1st respondent and the Appellant was for the appellant to take possession of plot No.697 and

commence development to avert impending revocation of title to the land by the 2nd – 4th respondents.”

It is therefore a volte face, for them to go on to submit that “significantly, full payment of the purchase price and substantial development of the plot of land constitute the foundation of the contract”

‘Commencement’ of development is not the same as ‘comprehensive’ development, which the 1st respondent charged the appellant for failure to carry out. Additions were thus made to the agreement of the parties, by the 1st respondent so that it could justify its intention to make more money from the plot of land, after the appellant had acted significantly, to stave off the impending revocation of the whole plot in question. There is no way a court of law, which exists purposefully to mete out justice, can allow the 1st respondent to get away with its clever scheme.
It is clear, that the trial court had misapplied the case of BIYO vs. AKU (SUPRA). The position of the law now, is that part-payment of the purchase price coupled with possession of ‘the plot, creates an equitable interest capable of preventing the vendor from resiling from the contract and creating another interest for others or himself. Issues Nos. 2 and 3 are thus resolved in favour of the appellant and against the respondents.

ISSUE NO 4

Whether the judgment is not against the weight of evidence adduced before the court.

Learned counsel for the appellant submitted that there is evidence before the trial court, that plot No. 697, is the subject of a valid, binding and enforceable contract of sale between the 1st respondent and the appellant, and that the appellant was put in possession, even before the payment of purchase price, so that it can commence development, because of the impending threat of revocation of the entire plot. He therefore argued that it was erroneous of the learned trial judge, to refuse to make the order for specific performance on the ground that the appellant had not paid the full purchase price, even though he made a part payment of N12 million; and that this was against the weight of evidence. He also submitted that evidence of possession of the plot in question, is seen from the fact that the appellant had erected a row housing up to roofing level. Since the trial court had set aside the revocation of Exhibit C, and the sub-division, the plot No. 697 had reverted into one single plot, and the appellant’s equitable interest is on the entire plot.

For the respondents, it was submitted that on the facts placed before the trial court, timely development of the plot of land was the utmost priority of the contract, so that there would be no revocation. The parties therefore, did not specify the time within which full payment of the purchase price would be made. Counsel submitted that three separate letters were written to the appellant by the 1st respondent for the appellant to fulfill its obligation under the contract, but that despite the demands, the appellant failed to pay the balance of the purchase price.
The respondents also argued that the slow pace of developing only a part of the plot of land, sustained the threat of the revocation of title to the plot, as only 1.354 hectares out of 4.91 hectares of the plot, was developed. They therefore submitted that the judgment of the court is well supported by the evidence adduced before it.

It is not controverted, that the appellant had made part payment of the purchase price to the tune of N12 million. It is also not in dispute, that the appellant had been put into possession of the plot, after the contract of sale had been entered into, and had erected a row-housing-up to roofing level. The fact that the plot of land still remained with the 1st respondent up to the time of the sub-division, shows that the development put up by the appellant had served the purpose, as there was no revocation. This means that the most fundamental and essential part of the contract of sale, had been performed by the appellant and it had definitely acquired an equitable interest, which the 1st respondent could not defeat by creating a legal interest on itself or on others. And when the trial court annulled the sub-division and the revocation of the certificate of occupancy No.FCT/ABU/MISC/3562 by the 2nd – 4th respondents, the said plot No. 697, had reverted to its original form as one plot. This whole plot of 4.91 hectares, is the equitable interest the appellant acquired. The issue of giving it only a part of it, was therefore without basis. Infact, it is because the trial court had considered the contract of sale to still be subsisting, that it gave the appellant a part of it, though erroneously. If there was no valid contract of sale, then the trial court would have only considered the issue of refunding the appellant, the part-payment of N12 million to it. It did not do this. It shows that the contract of sale is still subsisting. The refusal of the trial court to honour it in toto, by granting the specific performance over the whole part, is therefore erroneous and against the weight of evidence adduced before it. The submission that there was slow pace of development and that only a portion of the plot was developed, risking revocation, was not proved. This is because there is no letter from the 2nd – 4th respondents stating that they were not satisfied with the pace of development. There was no letter from them, that developing a portion of the land does not amount to development within the meaning of section 51 of the Land Use Act, and that they will revoke the non-developed part. The 1st respondent was simply laying a foundation to make unjustifiable financial gains, especially as its assessment of the developed part of the land (1.354 hectares) to be more than N11.985 million, is highly suspect, being based on mere arithmetic. The entire plot may not be of the same topography, and so the value cannot be applied across the board. Some part may be hilly whilst another part may be marshy or rocky. Without stating the entire nature of the plot and comparing the developed and the undeveloped portion, and assessing the value thereby, it will be speculative to just divide the N12 million by 7 plots, and arrive at a figure. Again this is even without basis, as it is not an ascertained fact, that the area developed by the appellant, is more than 7 plots. This is because even the judgment, at page 403, paragraph 3 of the record on this issue is merely a conjecture. The trial judge said –

“…If the area developed by the 4th defendant (appellant) is more than 7 plots, same will be more than N12 million depending on the size of the 7 plots.”

So, it is not certain, how many plots would make up the developed part of the land. Their sizes have also not been ascertained.

It is therefore baffling, how the trial judge, relied on speculation and un-ascertained facts to make a conclusive and final finding, in order to deny the appellant, the entire plot, upon which it had acquired an equitable interest. The trial judge in his judgment at page 405, lines 20 -24 of the record held –

“The whole plot 697 is about 4.91 hectares out of which the developed part by the 4th Defendant is 1.354 hectares. 1.354 hectares may not be commensurate with the N12 Million part-payment, but this is what the 4th Defendant is entitled to in law being the only developed part by the 4th Defendant of plot 697 now named as plot 697A in paragraph 4 of Exhibit J6.”

The above is not factual but speculative, since ‘may’ has come into it. It was not based on proven facts. Issue No. 4 is therefore also resolved in favour of the appellant and against all the respondents.

In the result, this appeal is adjudged meritorious and it succeeds. The appeal is allowed. The judgment of the trial court in Suit No.FCT/HC/CV/307/02 and FCT/HC/CV/407/02 (consolidated), is set aside in the following respect, where the trial court held –

a) “that the appellant has not acquired an equitable interest in the entire plot No.697.

(b) that the appellant is entitled only to the area developed by it in plot No. 697 known as plot No. 697A covering 1.354 hectares.

(d) That the appellant is to exercise right of ownership on Plot 697A, while the 1st respondent can exercise right of ownership in the remaining undeveloped part of Plot No. 697′”
and so failed to grant the counter-claim.

I instead, make the following Declarations and Orders –

(a) The appellant has acquired an equitable interest in respect of the entire plot of land known as No. 697 within Area BC ASOKORO DISTRICT Abuja, covered by Certificate of Occupancy No, FCT/ABU/MISC.3562, and that there is no longer in existence, Plot No.697A, following the setting aside of the subdivision of the said Plot by 2nd – 4th respondents on the application of the 1st respondent, and the nullification of the revocation of the said Certificate of occupancy, by the trial court.

(b) The appellant cannot be restrained from the undeveloped portion of Plot No. 697, since he has acquired an equitable interest over the entire Plot No. 697.

(c) The appellant can exercise right of ownership on the entire Plot No. 697 and the 1st respondent is restrained from interfering with this right of the appellant.

(d) The balance of the purchase price is an amount that is payable and recoverable by the 1st respondent, after which, an Order for Specific Performance of the Agreement entered into between the 1st respondent and the appellant over the said plot No. 697, shall take effect, perfecting the agreement, and converting the appellant’s equitable interest on the Plot in question, to a legal interest.

N50,000 costs to the appellant against the 1st respondent.

JOSEPH TINE TUR, J.C.A.: I had the advantage of reading an advance copy of the lead judgment just delivered by my Lord, Abubakar Datti Yahaya, JCA and I concur with the facts summarized, the reasoning and conclusions arrived at. I shall add a few comments of mine.

The subject matter in dispute is set out in paragraph 6 of the Amended Statement of Claim as follows:

“6. The plaintiff avers that by a Certificate of Occupancy No.FCT/ABU/MISC/3562, he was legally and validly allocated Plot No.697 within A/3 Garki District. The plaintiff pleads and shall at the hearing of this case rely on the said Certificate of Occupancy.”

The agreed selling price was twenty-eight million Naira only (N28m). This is borne out of paragraph 14 of the 1st Defendant’s Amended Statement of Defence/Counter-Claim to wit:

“14. The 1st Defendant admits paragraphs 5 and 6 of the claim to the extent that it agreed to sale(sic) to the plaintiff the disputed land for the sum of N28m and avers further that the said sum of N28m was to be paid in bulk.”

A conflict or controversy that gives rise to a particular law suit is what constitutes a “dispute.” The “land in dispute” or “the disputed land” simply means the land claimed by the plaintiff and counter-claimed by the defendant. See Akintola vs. Solano (1986) 2 NWLR (Pt.24) 598 at 622. I am of the humble opinion that the 1st respondent negotiated and sold the entire land in dispute covered by the Certificate of Occupancy pleaded in paragraph 6 of the Statement of Claim and admitted in paragraph 14 of the Statement of Defence/Counter-Claim for the sum of N28m. This is further supported in paragraph 3 of the Respondent’s Amended Statement of Defence/Counter-Claim as follows:

“3. The 1st defendant in reply to paragraph 5, 6, 7, 8 and 9 of the plaintiff’s statement of claim avers that what it offered for sale was the disputed land the Certificate of which was about to be revoked for none development and it’s aim was to sell to someone who can develop the entire or substantial part of the land within three months to save it from revocation and to be able to pay the agreed purchase price in bulk.”

The “land in dispute” or “the disputed land” thus comprises the developed and undeveloped portions covered by the Certificate of Occupancy No.697 within Area 3, Garki, Abuja as pleaded in paragraph 6 of the Amended Statement of claim and admitted in paragraph 14 of the Amended Statement of Defence/Counter-claim. Therefore, having collected the sums of N12m or more from the appellant out of the total sum of N28m it was not within the province of the 1st respondent to plead and contend as follows:

“7. The 1st defendant avers further that in its bid to protect it’s asset from revocation for lack of development and or loss of the purchase price which the plaintiff refused to pay as agreed decided to apply for and did applied for subdivision of the land after several demands on plaintiff to pay proved abortive.

8. The 1st defendant avers that the area developed by the plaintiff is not up to 500 square metres out of 4.9 hectres. The land therefore stands the risk of revocation.”

After collecting N12m out of the N28m the 1st respondent put the appellant into possession of the entire land. From the 1st respondent’s pleading it is clear that the appellant developed part of the land covered by the Certificate of Occupancy. The legal adage is that possession is 1/10th of the law. See Akintola vs. Solano (1986) 2 NWLR (Pt.24) 598 at 610; Adeshoye vs. Shiwoniku 14 WACA 86 at 87. The 1st respondent divested himself of ownership and possession of the land in dispute hence he had no legal or equitable rights to enter and subdivide the undeveloped portions of the land as pleaded in paragraphs 7 and 8 of the Amended Statement of Defence/Counter-Claim. In Idundun vs. Okumagba (1976) NMLR 200 Fatayi Williams, JSC (as he then was) enumerated five ways by which a party may prove title to a disputed land. The fifth method at page 211 is as follows:

“Finally, proof of possession of connected or adjacent land, in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute, may also rank as a means of proving ownership of the land in dispute (see S.45 of the Evidence Act, Cap.62).”

Thus, Section 35 of the Evidence Act, 2011 reads as follows:

“35. Acts of possession and enjoyment of land may be evidence of ownership or of a right of occupancy not only of the particular piece or quantity of land with reference to which such acts are done, but also of other land so situated or connected with it by locality or similarity that what is true as to the one piece of land is likely to be true of the other piece of land.”

See Alhaji Karim Laguro & Ors. vs. Honsu Toku (1992) 2 SCNJ (Pt.1) and Udeze vs. Chidebe (1990) 1 SCNJ 104. Furthermore, Section 168(1) and (3) of the Evidence Act, 2011 reads as follows:

“168(1) When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisite for its validity were complied with.

(3) When a person in possession of any property is shown to be entitled to the beneficial ownership of it, there is a presumption that every instrument has been executed which it was the legal duty of his trustees to execute in order to perfect his title.”

The presumption is that what is true of the developed portion of the land by the appellant is also true of the undeveloped portion as both are covered by one Certificate of Occupancy evidencing title to the entire land in dispute.
The 1st respondent had no right to commit acts of trespass by re-entry into the land to subdivide it into portions or plots for whatever purpose.

An appeal is a rehearing by the appellate Court with regard to all the questions involved in the action. See Section 15 of the Court of Appeal Act, 2004 and Sabru Motors Nig. Ltd. vs. Rajab Enterprises Nig. Ltd. (2002) 4-6 10 NSCQR (Pt.1) 120 at 132. I am of the humble view that the appellant is entitled to judgment on the principle laid down by Twisden, J., in Pomfret vs, Ricroft 85 E.R. 454 cited with approval in Pullbach Colliery Co. Ltd. vs. Woodman (1914-15) All E.R. Rep. 124 at 128 per Lord Atkin that:

“…when the use of a thing is granted everything is granted by which the grantee may have and enjoy such use.”

For these and the fuller reasons given in the lead judgment, I also allow this appeal. I abide by all the consequential orders made in the lead judgment.

MOORE A. A. ADUMEIN, J.C.A.: I read before now the judgment of my learned brother, Abubakar Datti Yahaya, JCA just delivered.

By the Deed of Assignment – exhibit J1 executed between the 1st respondent and the appellant and the Power of Attorney – exhibit J2 donated to the appellant by the 1st respondent the appellant had acquired equitable ownership of Plot No.697 at Area BC, Asokoro District, Abuja, covered by Certificate of Occupancy No.FCT/ABU/MISC 3562 and the 1st respondent, who had given out his interests therein for a valuable consideration, could no longer validly transfer the said plot of land or any portion thereof to a third party. It is for this reason and the very comprehensive reasons given by my learned brother that I also allow the appeal.
I abide by all the orders made by my learned brother, Yahaya, JCA in the lead judgment.

Appearances

Chief Mamman Mike Osuman (SAN) with Donald OkogbeFor Appellant

AND

Samuel Zibiri for the 1st Respondent.
J. O. Abari with J. O. Owulo for the 2nd, 3rd and 4th Respondents.For Respondent