MR KINGSLEY NWACHUKWU v. MR ULONNAM OKAELU
(2015)LCN/7739(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 13th day of January, 2015
CA/OW/362/2013
RATIO
LAND LAW: SALE OF LAND UNDER CUSTOMARY LAW; WHETHER A VALID SALE OF LAND UNDER CUSTOMARY LAW DOES NOT REQUIRE A CONVEYANCE AND THE REQUIREMENT FOR A VALID SALE OF LAND UNDER THE CUSTOMARY LAW
The law is settled that a valid sale of land, under customary law, does not require a conveyance as obtained under English law. See ELEMA Vs AKENZUA (2006) 6 SCNJ 226 at 237; NSIEGBE Vs MGBAMENE (2007) 10 NWLR (Pt 1042) P 364; KACHALLA Vs BANKI (2006) 8 NWLR (Pt 982) 364; OGUNBAMBI Vs ABAWABA (1951) 13 WACA P.222, ADEDEJI Vs OLOSO (2007) ALL FWLR (Pt 356) P 610 at 640 and OGUNMUYIWA Vs ODUKOYA (2009) ALL NWLR (Pt 454) P. 146, where the minimum requirements for contract of sale of land, under native law and Custom, were enumerated as follows:
1. Payment of the purchase price.
2. Possession by the purchaser, and
3. The presence of witnesses, during the transaction. per. ITA G. MBABA J.C.A.
EQUITABLE RELIEF; SPECIFIC PERFORMANCE; THE EXERCISE OF THE COURT’S DISCRETION TO ORDER SPECIFIC PERFORMANCE IN A CONTRACT WHERE THERE IS AN AGREEMENT FOR SALE OF LAND AND A PARTY TRIES TO OPT-OUT
I think the Appellant wanted to play a smart game, motivated by greed, by trying to opt-out or to repudiate theft contract, simply because the value of the land over the years had appreciated, after he had benefitted from the consideration furnished by the Respondent! He wanted to eat his cake and still have it! Unfortunately, for the Appellant, he had been trapped by the law, compelling him to perform the duty he willingly initiated in 1985.
In the Supreme Court case of Ohiaeri vs. Yusuf & Ors. (2009) LPELR -2361 (SC) it was held thus, on when the Court ought to grant specific performance:
“… It has been established that there was existing valid agreement between the relevant parties in relation to the sale of the property in dispute, coupled with facts and circumstances on which the Court can exercise its discretionary powers in equity to order specific performance of same, particularly where the agreement is ex-facie not illegal or offend public policy, the Court will definitely enforce same.
per. ITA G. MBABA J.C.A.
LAND LAW: EQUITABLE INTEREST IN PROPERTY; WHETHER PART-PAYMENT IN A SALE OF LAND GIVES THE BUYER EQUITABLE INTEREST IN THE PROPERTY
Still in the above case, Tabai JSC, on whether part-payment in a sale of land gives the buyer equitable interest in the property, said:
“The established legal principle is that, where there is an agreement for sale of land either under native law and custom or other mode of sale and for which the purchaser, acting within the terms of the agreement, makes full or part payment of the purchase price to the vendor and is in furtherance thereof put in possession, he has acquired an equitable interest in the property and which interest ranks as high as a legal estate and cannot therefore be overridden by subsequent legal estate created by the same vendor or his legal representative in favour of another person…Ayinla vs. Sijuwola (1984) NSCC 301 at 312”
See also the case of Oshafunmi & Anor vs. Adepoju and Anor. (2014) LPELR -23073 CA, where this Court held that:
“… the law permits the invocation or the order (of specific performance) the moment there is establishment of contract and a party failed to fulfill his own side of obligation to the contract. It is ordered when monetary compensation will not be sufficient compensation for the damages caused by the default… It does not matter that only part payment was made, leaving the balance outstanding. See Minilodge Ltd vs. NGEI (2009) 7 NWLR (Pt.1173) 254 at 284 -285; Mustapha vs. Abubakar (2010) 1 LPELR -4567 CA. per. ITA G. MBABA J.C.A.
JUSTICES
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
FREDERICK O. OHO Justice of The Court of Appeal of Nigeria
Between
MR KINGSLEY NWACHUKWU Appellant(s)
AND
MR ULONNAM OKAELU
(For himself and representing the members of Pentecostal Promise Mission Amangwo Olokoro) Respondent(s)
ITA G. MBABA J.C.A.(Delivering the Leading Judgment): This is an appeal against the decision of Abia State High Court, sitting at Umuahia, delivered on the 21/1/13 by Hon. Justice K. O. Wosu in a consolidated suits NOS. HU/105/97 and HU/95/99, with the plaintiff in the 1st Suit remaining as plaintiff, while the plaintiff in the 2nd Suit remained as the Defendant/Counter Claimant in the consolidated suit. Judgment was entered against the Plaintiff, who is the Appellant herein.
By a Writ of summons dated 1/7/97,in suit NO.HU/105/97, the Plaintiff (Appellant in this appeal) claimed against the Defendant (Respondents herein) for declaration that he was entitled to the statutory right of occupancy over a piece of land called “Okporuama Amangwo” of annual rent value of ten naira (N10,00). He also asked for damages for trespass as well as injunction. By another summons taken out by the Defendant too (as plaintiff), Respondent herein, on the 2/8/99, in Suit NO.HU/95/99, Claimed against the Appellant herein for a declaration that the parties were bound by the agreement contract entered into on the 28/4/85 in respect of the same land, an order of specific performance, and injunction.
The Plaintiff’s case was that he had entered into a temporary agreement with Defendant on the 28/4/85, wherein he (Plaintiff) granted the Defendant a temporary occupation of a portion of the land in dispute, at an agreed land rent of N6,000.00; that the Defendant, on that date, paid a deposit of N200.00 (Two Hundred Naira) and promised to make a complete payment of the balance outstanding at the end of May, 1995; that instead of the Plaintiff paying the balance outstanding, he made another instalmental payment of N500.00 (Five Hundred Naira) on 24/5/85; that in 1993 his lawyer wrote to the Defendant to vacate the land for breach of the terms of the temporary agreement. The Defendant then surveyed the land and asserted claims on it as the owner.
At the trial, the Plaintiff had testified as Cw1 and called two witnesses. He tendered 3 exhibits, namely: Survey plan No.DOK/ABSC/DS -17/97 as Exh A, – where the land in dispute was verged PINK -Letter by his lawyer to the defendant, dated 20/8/93, titled ‘Notice to vacate the Okporuama Amangwo land’ as Exh B, and a copy of the judgment of Olokoro Council of Chief, as Exh C.
Appellant, who later succeeded his father (the original Claimant) stated that when the defendant refused to vacate the land, upon the service of Exh B on him, the original Claimant removed the beacons planted by the Defendant. He also said that in Exh C, Olokoro Council of Chiefs decided that the Defendant should pay additional N4,000.00 as part of the land rent, but his father (original Claimant) rejected the decision.
The case of the Defendant was that on 28/4/1985 the parties entered into an oral Agreement/Contract of outright sale of the land in dispute; that the plaintiff sold the piece of land known as and called “Mbude” or “Okporuama Amangwo”, situate and lying at Amangwo Olokoro, Umuahia, to him for the building of their Church,(Pentecostal Promise Mission and living Quarters) at the cost of N6,000.00 (Six Thousand Naira), to be paid instalmentally; that he made an initial part payment of N200.00 (Two Hundred Naira) on the said 28/4/85 and made another instalmental payment of N500.00 (Five Hundred Naira) on the 24/5/85. Subsequently, within a period of 6 years (between 1985-1991), the Defendant said he made numerous additional instalmental payments of various amounts to the Plaintiff, totaling N4,865.00, leaving the balance outstanding at N1,135.00 which balance, the Defendant said he attempted to settle on the 15/12/91, but the defendant refused to accept;
The Defendant (Respondent herein) testified as Dw1 and called two witnesses. He tendered exhibits, namely: Exh D, E, F, G, H, I, J and K. Exh. J was the Judgment of Abia Okonko Society which found, among other things, that the claimant sold the land in dispute to the Defendant Dw2, one Boniface Ogbonna, was the Chairman of Abia Okonko Society. He corroborated the evidence of Dw1 by confirming Exh J and his signature in Exh L. He stated that the parties accepted the verdict in Exh J, but when the defendant went to the Original Claimant to comply with the said verdict, the Claimant refused to accept both the balance and the customary rites.
At the conclusion of the trial, after considering the evidence by both sides, the learned trial Court entered judgment for the Defendant/Counter Claimant in the consolidated suit on the 21/1/13.
Appellant filed the notice and grounds of appeal on the 25/2/13, disclosing 6 grounds of appeal, as can be seen at pages 176-183 of the Records of Appeal. Appellant filed his brief of arguments on 31/1/14, which was deemed duly filed on 14/2/14. He distilled 2 issues for determination, namely:
(1) Whether the lower trial Court was right to hold that Suit No. HU/95/1999, filed by the Defendant/Respondent was competent.
(2) Whether the lower trial Court was right to hold that there was breach of contract on the part of the Claimant/Appellant, to entitle the Defendant to an order of specific performance.
Appellant also filed a Reply brief on 28/4/14, on being served with the Respondent’s Brief, which was filed on 11/4/14, wherein the Respondent formulated 3 issues for determination, as follows:
(1) Whether there was valid oral Agreement/Contract of sale of the piece of land known as and called “Mbude” or “Okporuama Amangwo” situate and lying at Amangwo Olokoro, Umuahia which is sufficient to vest Legal, and Equitable Right/Title on the Respondent.
(2) Assuming, without conceding, that the Defendant/Respondent Suit No. HU/95/1999 was incompetent, could the trial Court have found in his favour equally on the strength of the Claimant/Appellant Suit, and defence given thereto by the Defendant/Respondent.
(3) Whether the trial Court was right to have ordered for specific performance, on the basis of the Agreement/contract between the Appellant and the Respondent, dated 28/4/1985.
(None of the parties related the issues to the grounds of appeal)
Arguing the appeal, Counsel for the Appellant, Okezie NwazueKanu Esq. (who settled the brief), on issue 1, submitted that the trial Court misapplied the law, when he held that the Suit No. HU/95/1999 was competent. He said that parties to an action must be legal persons and must be competent to institute such an action and if such competency is challenged, then the onus is on him to prove. He referred us to the case of Amodu Rufai Shittu & Ors Vs. Chief Imam Momodu Ligali & Ors. (1941)16 NLR 23. He stated that the Respondent pleaded in paragraph 3 of his statement of claim in Suit No. HU/95/99, that the action was in a representative capacity and pleaded a letter of authority, authorizing him to file the suit (page 12 of the Records); that the Appellant, in paragraph 3 of his statement of defence, denied the averment and put the Respondent to the strictest proof thereof, (page 17 of the Records), but the Respondent failed to tender the said letter of authority from the Pentecostal Promise Mission. He cited the case of Effiong Duke Vs. Etubom Henshaw (1946) 6 WACA 200. He contended that the Respondent withheld the purported letter of authority, if any, and it is fatal to his case. He referred us to Section 167 (d) of the Evidence Act.
Counsel submitted that the trial Judge misapplied the law and misdirected himself, when he held that “from the pleadings and written depositions of witnesses and exhibits tendered by the Defendant, it is clear that the Suit is easily understood to be a represented action. Therefore, failure by the Defendant to produce an authority from PPM in that regard is not fatal to the Suit”. (page 175 of the Records).
He submitted that that findings was not supported by the evidence and urged this Court to so hold and uphold his argument that Suit No. HU/95/99 was incompetent and dismiss same.
Counsel also submitted that the trial Court erred in law when he overlooked the Appellant’s argument that the court lacked jurisdiction to entertain the Suit on the ground that the Respondent failed to prove that the Pentecostal Promise Mission is a legal personality and whether Pastor Ulonnam Okaelu is a trustee of the Church. He contended that the trial Court avoided the argument and did not make any finding on the issue; that under cross-examination, (pages 8-9 of the Record), the Respondent admitted that the Church was not registered and submitted that this was fatal. He cited the case of Erokoro Vs. Govt. of Cross River (1991) 4 NWLR (pt 185) p.322 ratio 6; Sections 673 (1) CAMA 1990; Section 679 (1) CAMA 1990; He submitted that an unincorporated association does not legally exist and must, of necessity, act through its appointed representatives. He relied on Anyaegbunam Vs. Osaka (2002)5 NWLR ((pt 657) p 386 at 388.
Counsel submitted that the findings of the trial Court for an Order of specific performance was made in vacuum, as the said Pentecostal Promise Mission does not exist in the first place and urged us to so hold.
On issue 2, Counsel submitted that, for a party to be entitled to the reliefs sought, he must prove his case on the strength of credible evidence, consistent with his pleadings. He relied on the case of Nwokidu Vs. Okanu (2010) 41 NSCQR (pt 1) p 215 at 246. He submitted that the trial Court was in error, when he held that the Respondent was entitled to specific performance, because the relief is available to a party who proves a breach of contract that cannot be compensated by payment of damages. He contended that the Respondent in his statement of claim in suit HU/95/99 never pleaded that the breach of contract in this case could not be compensated by payment of damages. Counsel reiterated the cases of the parties at the trial Court, that moreover, the Claimant’s case was an oral agreement with the Pentecostal Promise Mission for the temporary occupation of the land in dispute at agreed rent of N6000 in 1985,wherein the Church paid an initial deposit of N200 and promised to complete the balance of the money at the end of May, 1985. But instead of paying the balance outstanding, the Defendant/Respondent paid N500.00 on 24/5/85; that it is in evidence that the Claimant/Appellant, being dissatisfied with the way and manner the Respondent was paying him, sued the Respondent before the Olokoro Okonkwo Society, in 1988, (whose decision is Exh C); that in the course of the Arbitration, the Appellant was paid N400.00; that as at 1993, the Respondent was yet to complete the payment, as a result of which the Appellant issued the Respondent notice to vacate the land (Exh. B).
Counsel stated that the case of Respondent was that there was an agreement for an outright sale of the land in dispute on an installmental payment and that by 1991, they had paid several installments, remaining a balance of N1,135.00 and that the original Claimant refused to collect the balance, when they went to pay the money; that the Respondent pleaded a payment book in paragraph 13 (b) of the statement of claim in suit No. HU/95/99 (See page 14 of the Records).
Counsel argued that the Respondent failed to prove the balance of probabilities and preponderance of evidence that the Claimant/Appellant breached any contract; rather it was the Respondent that was in breach of contract to pay the balance, which made the original Claimant to sue the Respondent before the Olokoro Okonkwo Society for the balance of his money, in 1988.
He also submitted that the trial Court was in error having failed to make a finding on the fate of the contract, where the Appellant sued for the balance and whether failure to off-set the said balance did not terminate the contract. He concluded that the guiding principle of an Order of specific performance is that the claimant of such relief should not be allowed to benefit from his wrongful act. He relied on African Petroleum Ltd Vs Owodunni (1991)8 NWLR (pt 210) p 391, ratio 30; also Best Ltd Vs Blackwood Hodge Ltd (2011)1 KLR (pt 289) p 47 at 60-61, that the Respondent having failed to prove to the satisfaction of the court that he had fulfilled all the condition precedent or terms of the contract, the Appellant is not liable to the claim of specific performance.
He urged us to hold that the trial Court was wrong to hold that there was breach of contract on the part of the Appellant, to entitle the Respondent to an Order of specific performance, when it was clear that the Respondent did not prove his case. He urged us to allow the appeal and set aside the Judgment of the lower trial Court.
The Respondent’s Counsel, Emmanuel Okoroji, Esq. (who settled the brief), arguing the issues the Respondent formulated, submitted that sale of land under native law and custom can rightly be executed orally with little requirement for written document. He cited the case of Onafowakan Vs Shopitan (2009) ALL FWLR Part 485 at 703 and Elema Vs Akenzua (2006) SCNJ 226 at 237, where the Apex Court held that “A valid sale of land under Customary Law does not require a conveyance as obtained under English law”.
Counsel submitted that from the uncontroverted evidence and exhibits tendered by the Respondent at the trial Court, particularly, receipt of sale between the Appellant’s Father and the Respondent, dated 28/4/85, and further acknowledgment of installment payment, coupled with the active possession by the Respondent, where he erected his Church to concretize his act of possession, it was obvious that there was an existing Agreement/contract of sale of the land in dispute; that the said transaction was witnessed by the persons who appended their signatures. He relied on Adedeji Vs Oloso (2007) ALL FWLR (pt 356) p 610 at 640 and Ogunmuyiwa Vs Odukoya (2009) ALL FWLR (pt 454) p 146, where the minimum requirement for the sale of land, under the Native Law and Custom, were enumerated, as follows:
1. Payment of the purchase price.
2. Possession by the purchaser, and
3. The presence of witnesses during the transaction.
Counsel cited the cases of Adebo Vs Saki Estate Ltd (1999)7 NWLR (Pt 617) p 525 and Oyegroba Vs Ido LGA (2001) FWLR (pt 36) p 928 at 944, where it was held that “where there is evidence of payment of purchase price, and the purchaser moved into possession after the sale, the requirement of ceremony will be dispensed with”.
Counsel also contended that it was never a term of the contract/Agreement that if the payment is not completed within a certain period, that the Respondent will pay more; he said that the offer and acceptance were hinged on the consideration of N6,000.00 to, be paid, instalmentally, as agreed by the parties. He submitted that all the elements of a valid contract, to wit:- Offer, Acceptance and Consideration, were fully satisfied in the present case, but that due to sheer greed, the Appellant tried to renege from the Agreement on the ground that land had appreciated, hence the consideration should be more! He submitted that the sum of N6,000.00 was enough consideration for the Agreement, without more. He relied on Curri Vs Misa (1875) LR 10 Exch 153 at 162; Chappel Vs Nestle (1960) A. C 87 and Africa Petroleum Ltd Vs Owodunni (1991) 8 NWLR (pt 201) 351, where the Apex Court per Nnaemeka Agu, JSC, supporting the above English decision, held that: when a party commented that a particular consideration is a “Chicken Change” that “it is fundamental that the Courts will neither make contract for the parties nor inquire into the adequecy of consideration”.
On issue 2, Respondent’s Counsel submitted that suit No. HU/95/99 was competent and lawfully so,in line with the clear provision of the Abia State High Court (Civil Procedure) Rules, 2009, on the issue of a party suing in a representative capacity; that given that the Pentecostal Promise Mission is not registered under Part “C” of Companies and Allied Matters Act, LFN 2004, as a result of which cannot sue through her incorporated Trustees; the only lawful means is to sue in a representative capacity. He reffered us to the Supreme Court’s case of NBA Vs Fawehinmi (1986) 2 NWLR (pt 21) p 224; Alfred Nwanguma & Ors Vs Ikyaande & Ors (1992) 8 NWLR (pt 258) p 192 and Ndulue Vs Onyekwulunye (2002) 5 S.C (pt 11) 124 at 136, where it was held that “what is important is to show that the group being represented has common interest, common grievance and the relief sought by the claimant must be beneficial to all of them”.
Counsel further submitted that the issue of Letter of Authority to sue can be dispensed with, as its absence cannot jeopardize the Suit, when the claimant, suing in representative capacity, satisfied the conditions, given the Supreme Court in Alfred Nwanguma & Ors Vs Ikyaande & Ors (supra) and by the provision of Order 7, Rule 7 of the Abia State High Court (Civil Procedure) Rules, 2009 which provide thus:
“if the Claimant sues, or any defendant counter-Claims, in a representative capacity, IT SHALL SO BE EXPRESSED ON THE CLAIM”
Counsel submitted that the only condition required by the above quoted Rules was that ‘it shall be expressed on the Claim’ ; that the issue of Letter of Authority is strange to our law, once the claimant, suing in representative capacity, expressly stated so, on the claim, as the claimant did in this suit No HU/95/99.; that by his conduct the Appellant has waived the right to challenge the representation, as he had been dealing with Respondent from day one and up till date as representing the Pentecostal Promise Mission; and this is not to concede that the representation is faulty though. He relied on Otapo Vs Sunmonu (1978) 2 NWLR (pt 58) 587 at 600 and Anabaraonye Vs Nwakihe (1997) 1 NWLR (pt 482) p 374, where the Apex Court held that “in any case, failure to obtain leave to sue in a representative capacity does not vitiate the validity of the action”
Counsel submitted that even if there were no two suits consolidated, the Respondent’s defence of the Appellant’s suit No HU/105/97 stands and is sufficient enough to sway, overwhelmingly, the judgment of the trial Court in favour of the Respondent and urged us to so hold, uphold judgment of the trial Court and dismiss the appeal.
On issue 3, Respondent’s Counsel submitted that the trial Court, was right to have made an order of specific performance, given that the Respondent had established that the transaction between the parties was that of outright sale and not tenancy, as evidenced in Exhibit F. He relied on Etajata Vs Ologbo (2007) ALL FWLR (pt 386) p 584, where the Supreme Court held that: “if a party received title to land under native Law and Custom and there is proof or evidence that money was paid for the land coupled with an entry into possession, it will be sufficient even to defeat the title of a subsequent purchaser of the Legal Estate, if the possession is continuously maintained”
Counsel also submitted that where there is evidence of part performance of the contract by the purchaser (as in the instant case), the Court can enforce oral contract, even if not made under Customary law. He relied on Ademiran Vs Olagunju (2002) FWLR (pt 87) p 825, where this Court held that: “It is trite that in an order for an action to be brought for specific performance for the sale of land or any interest in land, there must be a written memorandum of a contract signed by the Defendant or by his duly authorized agent. It is observed, however, that in certain circumstances a Court may enforce an Agreement caught by above statutory provision, notwithstanding that there is no note or memorandum in support of such Agreement”.
Counsel said that the Court further enumerated the conditions under which specific performance may be ordered, to include the following:
(a) The act constituting part performance must be unequivocal and consistence with, or reference to the contract alleged to be breached
(b) The plaintiff has wholly or in part executed his part of the oral agreement with confidence that the Defendant would do the same.
Counsel submitted that in the circumstances of this case, wherein the Respondent had performed substantial part of the contractual term, but had been hindered by the Appellant from completing it, the trial Court was right to hold for the Respondent.
He urged this Court to uphold the Judgment of the trial Court which ordered for Specific performance and to dismiss this appeal.
In his reply brief, Counsel for the Appellant argued that the Respondent’s contention that suit No. HU/95/99 was competent on the ground that it was expressly written on the face of the claim that the Respondent sued in a representative capacity and his submission that the issue of Letter of authority is strange and unknown to our law is misconceived and wrong. He submitted that the Respondent, having emphasized in his statement of claim that the basis of his suit was the letter of authority, cannot be allowed to argue, on appeal, that the said letter of authority is strange to our law, after issues had been joined at the trial Court and the said Court glossed over it in its judgment, after the Respondent had failed to tender same in Court. He cited the case of Effiong Duke Vs Etubon Henshaw (1946)6 WACA 200 and urged us to discountenance the Respondent’s submission and allow the appeal.
RESOLUTION OF ISSUES
I think the 2 issues distilled by the Appellant for the determination of this appeal are more suitable for the consideration of the appeal.
I do not think the Appellant really intended to be taken seriously by this Court, when he argued so, strenuously that the Respondent’s suit at the Court below (HU/95/1999, which was consolidated with Appellant’s Suit No.HU/105/1997) was incompetent. This is because, upon the two Suits being consolidated, with the consent of the Appellant, there was a presumption of regularity of the two suits, ready to go to trial, Appellant having not challenged the competence of suit No. HU/95/1999. The Respondent’s suit No.HU/105/1997 had become a Counter-claim in the suit No. HU/105/1997, while Appellant remained the Defendant/Counter-Claimant in that Suit. Of course, by law, the two suits maintained their separate identities, though consolidated. See the case of OGIDI & ORS V OKOLI & ORS (2014) LPELR 22925 CA; NASR V COMPLETE HOME ENTERPRISE NIG LTD (1977) 5 SC (REPRINT) 1.
In the consolidated suit, the Appellant had clearly identified the Respondent as the person he transacted with in relation to the land, and he (Appellant) knew, right from the beginning, that the Respondent was not acting alone, but was doing so for himself and on behalf of his church organization (Pentecostal Promise Mission), an unincorporated body. Exhibits F -the handwritten RECEIPT, acknowledging part payment for purchase of the land, dated 28/4/85 (Page 111 of the Records) and Exhibit D -letter by Appellant’s Counsel to the Respondent (Pages 38 and 98 of the Records), all showed that Appellant was dealing with the Respondent as the representative of the unregistered organization, called “Pentecostal Promise Mission.”
In paragraphs 2 and 3 of the Exhibit D (which Appellant caused his lawyer to write to;
“Pastor Ulonnam Okaelu,
Pentecostal Promise Mission
P.O. Box 1186
Umuahia”, he had stated:
“(2) That sometime in 1985, my client granted to you and the members of your Pentecostal Promise Mission a Temporary Occupation of a Portion of his land at Okporuama Amangwo Olokoro until the conclusion of the arrangement by the Mission to purchase the said portion of land
(3) That as a result of this agreement… the members of the Mission agreed to pay the sum of N6,000.00 (Six thousand Naira) for the use of the land, pending the conclusion of the arrangement for the purchase of the said land by the mission. Up till now the church members have failed to fulfill their own obligations for the use of the said portion of land…”
Appellant was, therefore, not acting honestly, when he pretended the Respondent did not produce the letter of authority at the trial Court, authorizing him to represent the said organization (Pentecostal Promise Mission), when he had, all along held the Respondent for being the Pastor of and acting for and on behalf of the said Mission.
When Appellant sued the Respondent in HU/105/97, he knew what he was doing and was holding the Respondent responsible for the transaction of 28/4/85, which culminated in his (Appellant’s) transfer of interest in the land in dispute.
I think he (Appellant) was only trying to be smart, when he failed to include the name of the church or Mission in the suit (probably because the Mission was not registered), but having pleaded and relied on documents, earlier issue by him to acknowledge that the Respondent was acting for himself and on behalf of a named organization, Appellant lacked the grounds to further question the authority of the Respondent to so maintain the suit in a representative capacity.
By Order 7 Rule 7 of Abia State High Court Civil Procedure Rule, 2009:
“If the claimant sues, or any Defendant counter-claims, in any representative capacity, it shall so be expressed on the claim.”
It appears, that is what is required to show that a case is brought or fought in a representative capacity. I do not also think it is the business of a defendant to dispute the claims of a party who sues for and on behalf of his family, community or organization, if the members of the family, community or organization, which the Plaintiff claims to represent, are themselves silent and raise no objection to the Plaintiff’s claims. The defendant cannot object for them!
The Respondent’s Counsel had submitted that, given the fact that the church, Pentecostal Promise mission, was not registered under Part C of the Companies and Allied Matters Act, (CAMA), with the Corporate Affairs Commission, to be able to sue by its Registered Trustees, the only lawful means for the body to bring an action was by its representative, the Respondent. He relied on Supreme Court case of N.B.A. vs. fawehinmi (1986) 2 NWLR (pt. 21) 224.
I agree, completely, with the Respondent Counsel on this. In a representative action, what is important is to show common interest or common grievance and that the relief sought by the claim is beneficial to all. See the case of Nwanguma & Ors. vs. Ikpaande & Ors. (1992)8 NWLR (Pt.258)192; (1992) LPELR -15144 CA, Ndulue vs. Onyekwulunne (2002) SC (Pt.11)124; Oragbaide vs. Onitiju (1962) 1 ALL NLR 32; Ogamioba vs. Oghene (19661)1 SC NLR 115.
Nobody can deny that the common interest of all the members of the unregistered body -Pentecostal Promise Mission, who have developed a property on the land in dispute, is also tied to the relief sought in this case by the Respondent.
I think the learned trial judge made a correct findings on this issue, when he held (though confusing ‘un-incorporated association’ with “incorporated association”) as follows:
“I find in this Suit that Pentecostal Promise Mission (PPM), did not file the Suit in its name, PPM is clearly an incorporated association (sic). Generally incorporated association (sic) cannot sue or be sued in their name as they are not legal personalities. They generally sue or be sued through representatives. See FAWEHINMI Vs NBA (NO2) (1989)2 NWLR (PT 105)P 558; see Introduction to Civil Procedure (2nd Edition) Ernest & Chudi N. Ojukwu, Chapter 3 thereof. Representative Suit are used to commence suits on behalf of unincorporated association or group of persons. That is the position in the instant suit. Further, the said suit is clearly expressed to be a representative action. From the pleadings and written depositions of witnesses and exhibits tendered by the Defendant, it is clear that the said suit is easily understood to be a represented action. Therefore failure by the Defendant to produce an authority for PPM in that regard is not fatal to the Suit. See Order 7 of the Rules of this Court. See also ATANU Vs AMU (1974)10 SC 237; OTAPO Vs SUNMUVO (1987)2 NWLR (PT 58)P 591 and AFOLABI Vs ADEKUNLE (1983)2 SCNLR” See page 175 of the Records.
I have earlier said that Appellant had also contributed greatly in supplying the necessary evidence to which the trial Court used to arrive at the above findings. On page 124 of the Records, the Appellant, testifying as Cw1, identified the letter written by his lawyer,(A. N. Okezie, Esq.) as Exhibit B, (notice to quit, dated 20/8/93), which was addressed to the Pentecostal Promise Mission, through its proprietor, Pastor Ulonnam Okaelu, wherein the Appellant’s Solicitor stated in paragraph 1 that:
1. “That sometime in 1995, my client granted to you and the members of your Pentecostal Promise Mission…..;
He went on to say, in paragraph 3, referring to the Respondent:
2. “It is my instructions that you and the members of the Mission …..”
Under cross-examination, the Appellant admitted that “the Pentecostal Promise Mission had a land transaction with my father” (the original Claimant). (See page 125 of the Records.)
Also, by the heading of Exhibit C, (Judgment of Amangwo, Olokoro Council of Chiefs, instituted by the Appellant and tendered in evidence by the same Appellant) it was stated as:
“Between the Appellant and Members of the Pentecostal Promise Mission Church-Spokesman, Mazi Israel Okaelu & Co. “(See page 39 of the Records)
Equally, in the first paragraph of the same page 39, as an introduction, it was stated that:
“The arbitration started at about 11:30 am, of 24/7/93, with the representatives of Pentecostal Promise Mission, Represented by Mazi Israel Okaelu Vs Mazi Abraham Nwachukwu”
The Appellant, having expressly admitted dealing with the Respondent and addressing him as the Representative/Spokesperson and Member of the Pentecostal Promise Mission, coupled with the numerous instances, wherein the Respondent addressed and conducted himself as a representative of the Pentecostal Promise Mission, as can be seen in the Exhibits, tendered by the Respondent, like Exhibits D, (Judgment of Abia Okonkwo Society), and Exhibit F, (temporary receipt of payment dated 24/3/91), wherein Mr. Israel Okaelu, signed for and on behalf of the Mission, acting as its representative, Appellant cannot now renege. See page 111 of the Records.
I therefore, resolve the issue one against the Appellant.
On the second issue, Appellant’s argument targeted the decision of the trial Court, which held that there was breach of contract, which entitled the Respondent to specific performance. Appellant’s Counsel queried the trial Court’s resolve, that specific performance is available to a party who proves breach of contract that cannot be compensated by payment of damages; he said that the Respondent in his statement of claim never pleaded that the breach of the contract could not be compensated by payment of money. He stated that the Appellant’s case was that, there was oral Agreement with PPM, for a temporary occupation of the land in dispute at agreed rent of N6,000.00 in 1985, and that PPM paid the initial deposit of N200.00 on 28/4/85 and promised to complete the balance of the money at the end of May, 1985; that the Respondent paid additional N500.00 on 24/5/85, instead of completing the balance; that in 1988, the Respondent paid another N400.00, when the original Claimant sued the Respondent before the Olokoro Okonkwo Society, over the manner in which the Respondent was paying him, (which gave birth to Exh C); that up till 1993, the Respondent was yet to complete the payment, hence the Appellant served the Respondent with a Notice to vacate the said land, (Exh.B); that it was evident that from 1985-1991, the Respondent could not finish paying the sum of N6,000.00 and that the Appellant was practically begging the Respondent to pay him; that as such, the Appellant did not breach any contract; rather, it was the Respondent who failed, refused and neglected to pay by the end of May, 1985, as agreed by the parties; Counsel said that the trial Court misdirected himself on facts, when he held that the claimant was in breach of contract; that the Court and was wrong to have failed to make a finding, if time was of the essence and its implication on the said contract, the Appellant having sued the Respondent in 1988, and the subsequently served him with a Notice to vacate the land in dispute; he submitted that non-payment of the balance of the agreed sum by the Respondent, as at when due, excused the Appellant, as such he was not liable to the claim for specific performance. He referred us to the case of BEST LTD Vs BLACKWOOD HODGE (2001) 1 KLR (Pt 289) P 47 AT 60-6.
A close and careful look at the Records before us reveal, again, that the Appellant contributed in supplying the necessary evidence, used by the trial Court, to arrive at its conclusion.
On page 124 of the Records, Appellant testified, as CW1, identified and tendered 3 exhibits, amongst which, Exhibit C, which is the judgment of Olokoro Okonkwo Society, instituted by the original Claimant (father of the Appellant herein). The original claimant, while cross-examining the Respondent, had asked the following questions which were responded to by the Respondent, as follows:
Q: when I took you to show you the boundary of the land, was any of your witnesses present then?
Ans: they were not there.
Q: when I summoned you before the Imo Okonkwo, did I summon you because you and I were disputing the ownership of the land or for you to come and make payments to me?
Ans: You summoned me to come and pay you.
At the conclusion of that session, the panel reached the following conclusion:
“Having broken into committees of Amangwo villagers and Olokoro citizens presents and other committees, came to the following conclusions as verdict:
“that the panel believe that it was the whole land that was sold and NOT a portion of it…”
In his statement before the Abia Okonko Panel, referred above, the report shows that, the Chairman had asked the Complainant, Mr. Abraham Nwachukwu, to state his case before the Panel, and he did as per page 105 of the Records, as follows:
“… that he gave this (sic) people his land known and called MBUGHUDU in 1985, that since he gave this (sic) people this land to buy and they agreed on N6000 (six thousand Naira only) as the price of the land, they cannot even pay him the N6,000 in a useful way, that uptill now they have not finished the payment of that very land. That he had taken decision to quit them from that place. That he is no more interested to sell that land to them. That they should remove their structure from the said land…..”
On the same page 105 of the Records, the Chairman allowed Pastor Israel Okaelu and his people, to ask the Appellant (Mr. Abraham Nwachukwu) questions, Under cross-examination, the Appellant proffered the following answers to the questions put forward to him by the Respondent:
Q1: Did we not agree with you that we shall be paying you on installmental basis, as we have no money to pay you enbloc?
Ans: I don’t know of that.
Q2: Did we not come to you on 8/12/91 to pay you all the balance we are owing you?
Ans: You came and I asked you to quit.
Q3: Did you not write and listed (sic) what we should bring along with us when coming to pay you?
Ans: I did not make any list available to you.
Q5: How much so far have you received?
Ans: you have not paid me any money en bloc, I have my receipt so you can check it.
And when interrogated by the panel, the following were recorded:
Q1: Who gave this land to the Pentecostal Mission?
Ans: I, Mr. Abraham Nwachukwu, gave it to them to buy.
Q2: Did you take them round the boundaries?
Ans: yes, I did take them to all the 4 corners of the land.
Q3: Did you bargain for the price?
Ans: yes, we bargained for the price.
Q4: How much so far have you received from them?
Ans: they did not pay me all at a time, but I know I received up to N4, 865.00.
Q5: What is your main reason of asking them to quit the land?
Ans: I want them to quit, because I don’t want them in that land any more.
Q6: Supposing you are paid completely at the first time will you ask them to quit?
Ans: they have not paid me, completely.
Q9: Has this Mission build (sic) anything on that very land?
Ans: yes, they have made a structure on that very land.
Q10: Supposing they give you all that you have written, will you allow them to stay- something like a Carton of beer, a crate of Mineral, 1 bottle of hot,, 3 big tubers of yam and one big Goat.
Ans: I have asked them to quit that place”
At the conclusion of their hearing, the Panel gave their verdict, as can be found at page 108 of the Records, as follows:
“The Abia Okonko Society, Olokoro branch, after a careful studying (sic) of the evidence of both the plaintiff and that of the defendant and cross-examination of both parties, the Panel resolved as follows:
(1) That the Panel believed that Mr. Abraham Nwachukwu was the owner of that portion of land at Mbughude in Amangwo.
(2) That the Panel also believe that it was Mr. Abraham Nwachukwu who gave that piece of land to Pentecostal Mission to buy.
(3) That the Panel also agreed that they reached an agreement of installmental payment as young Mission.
(4) That the Mission also has paid to Mr. Abraham Nwachukwu the total sum of N4, 865. 00 out of the N6,000.00, leaving a balance of N1,135.00
(5) The Panel also believed that it was Mr. Abraham Nwachukwu that listed out some items for them when they visited him by December, 8, 1991.
(6) That the society also found the mission guilty of cutting the palm tree which does not belong to them and asked them to pay a cost of N40.00 to Mr. Nwachukwu for the palm tree.
(7) The Panel also asked the Mission to go on to pay the balance of this money and the items listed by Mr. Nwachukwu before the year runs out.
(8) The Panel also warn (sic) Mr. Nwachukwu to desist from quitting them from that land as they are a young Mission and had paid to him more than ‘be of the amount agreed to pay in order to allow the growth of the young Church.” (See page 108 of the Records).
From the foregoing admissions by the Appellant, in Exhibits C and J, and the other exhibits tendered by the Respondent, such as Exhibits F, (receipt of payment), Exh G, (a letter titled letter of Request), requesting the Respondent to pay him some money, to enable him off-set the medical bill of his sick daughter, Exh H, (letter dated 8/12/91) containing the list of items to be provided by the Respondent for the traditional rites, when coming to defray the outstanding balance on 15/12/91, coupled with the unchallenged evidence of the Respondent, as DW1, as well as the corroborating evidence of DW2, and DW3, in all material facts and substance, as contained at pages 132 -134 of the Records, it is obvious that a sale had been concluded between Appellant and the Respondent, on the land, though the consideration (price) was yet to be fully paid. One can, safely, conclude that the parties had in 1985, infact, entered into a valid oral contract of outright sale of the land in dispute. This is even so, as it relates to sale of land under Native law and Custom, where the sale can rightly be executed, orally, with little or no requirement for written document.
The law is settled that a valid sale of land, under customary law, does not require a conveyance as obtained under English law. See ELEMA Vs AKENZUA (2006) 6 SCNJ 226 at 237; NSIEGBE Vs MGBAMENE (2007) 10 NWLR (Pt 1042) P 364; KACHALLA Vs BANKI (2006) 8 NWLR (Pt 982) 364; OGUNBAMBI Vs ABAWABA (1951) 13 WACA P.222, ADEDEJI Vs OLOSO (2007) ALL FWLR (Pt 356) P 610 at 640 and OGUNMUYIWA Vs ODUKOYA (2009) ALL NWLR (Pt 454) P. 146, where the minimum requirements for contract of sale of land, under native law and Custom, were enumerated as follows:
1. Payment of the purchase price.
2. Possession by the purchaser, and
3. The presence of witnesses, during the transaction.
I think the trial Court was right when it held that the transaction of 1985 between the parties was a complete contract of sale of the land in dispute, and that there was breach of the contract by the Appellant by refusing to accept the outstanding balance of the said contract sum and the other items for the traditional rites from the Respondent, in 1991.
I think the Appellant wanted to play a smart game, motivated by greed, by trying to opt-out or to repudiate theft contract, simply because the value of the land over the years had appreciated, after he had benefitted from the consideration furnished by the Respondent! He wanted to eat his cake and still have it! Unfortunately, for the Appellant, he had been trapped by the law, compelling him to perform the duty he willingly initiated in 1985.
In the Supreme Court case of Ohiaeri vs. Yusuf & Ors. (2009) LPELR -2361 (SC) it was held thus, on when the Court ought to grant specific performance:
“… It has been established that there was existing valid agreement between the relevant parties in relation to the sale of the property in dispute, coupled with facts and circumstances on which the Court can exercise its discretionary powers in equity to order specific performance of same, particularly where the agreement is ex-facie not illegal or offend public policy, the Court will definitely enforce same.
In the instant case, since Exhibit A satisfies the conditions precedent to be so enforced, I hold the firm view that the Lower Court was right in affirming the order of specific performance made by the trial court…” per Onnoghen JSC,
Still in the above case, Tabai JSC, on whether part-payment in a sale of land gives the buyer equitable interest in the property, said:
“The established legal principle is that, where there is an agreement for sale of land either under native law and custom or other mode of sale and for which the purchaser, acting within the terms of the agreement, makes full or part payment of the purchase price to the vendor and is in furtherance thereof put in possession, he has acquired an equitable interest in the property and which interest ranks as high as a legal estate and cannot therefore be overridden by subsequent legal estate created by the same vendor or his legal representative in favour of another person…Ayinla vs. Sijuwola (1984) NSCC 301 at 312”
See also the case of Oshafunmi & Anor vs. Adepoju and Anor. (2014) LPELR -23073 CA, where this Court held that:
“… the law permits the invocation or the order (of specific performance) the moment there is establishment of contract and a party failed to fulfill his own side of obligation to the contract. It is ordered when monetary compensation will not be sufficient compensation for the damages caused by the default… It does not matter that only part payment was made, leaving the balance outstanding. See Minilodge Ltd vs. NGEI (2009) 7 NWLR (Pt.1173) 254 at 284 -285; Mustapha vs. Abubakar (2010) 1 LPELR -4567 CA.
I therefore resolve this issue also against the Appellant, as there is eloquent evidence to the fact that Appellant had sold the land to the Respondent and was only entitled to the balance of the purchase price N1,135.00 and traditional items, which the Respondent has since 1991 been ready to pay.
From the totality of all the above, I hold that the appeal is unmeritorious and should be dismissed, and it is hereby dismissed.
The judgment of the trial Court, delivered on 21/1/13 by the Hon. Justice K. O. Wosu is affirmed.
Appellant shall pay the cost of this appeal, assessed at Fifty Thousand Naira only (N50,000.00) to Respondent.
PETER OLABISI IGE, J.C.A.: I had the advantage in reading in draft, the judgment just delivered by my Learned brother ITA G. MBABA, J.C.A.
My learned brother adequately considered the pertinent issues that arose for determination in this appeal. I am in complete agreement with his reasoning and conclusion that the appeal lacks merit and should be dismissed.
FREDERICK O. OHO, J.C.A.: I have had the opportunity to read in advance the judgment just delivered by my learned Brother, Ita G. Mbaba, JCA. Both the facts and the applicable law having been carefully and adequately dealt with, I am in entire agreement with His Lordships’ reasoning and conclusion. Consequently, I too hold that the Appeal is unmeritorious and should be dismissed and it is accordingly dismissed.
Appearances
Okezie Nwazue Kanu, Esq.For Appellant
AND
Emmanuel Okoroji, Esq. with Godwin N. Onaku Esq.For Respondent
