ALHAJI AMINU SURAJO FUNTUA v. DR. SALISU AHMAD INGAWA
(2016)LCN/8386(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 23rd day of March, 2016
RATIO
PRACTICE AND PROCEDURE: PLEADINGS; WHAT CONSTITUTES PLEADINGS AND THE PURPOSES OF PLEADINGS
It is settled law that where an action is commenced by way Originating Summons which is supported by an affidavit and in response to which the defendant files a counter affidavit, as in the instance case, the affidavit in support and counter affidavit constitute the pleadings in the matter, i.e. the statement of claim and the statement of defence respectively in the matter and the principles governing pleadings as to joining of issues apply mutatis mutandi – Nigerian National Petroleum Corporation v. Famfa Oil Ltd (2012) 17 NWLR (Pt. 1328) 148 at 189 E-F. It is elementary that in an action fought on pleadings, the very foundation of the action is the pleadings of the parties. Pleadings are the written statements of the parties setting forth in a summary form the material facts on which each relies in support of his claim or defence, as the case may be. They are the means by which the parties are enabled to state and frame the issues which are in dispute between them and it operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the Court will be called to adjudicate between them – Aminu v. Hassan (2014) 5 NWLR (Pt. 1400) 287, Mbanefo v. Molokwu (2014) 6 NWLR (Pt. 1403) 377 at 418 A-C, Corporate Ideal Insurance Ltd v. Ajaokuta Steel Co. Ltd (2014) 7 NWLR (Pt. 1405) 165 at 188 A-B, Anyafulu v. Meka (2014) 7 NWLR (Pt. 1406) 396 at 424 G. This principle was firmly restated by the Court of Appeal in Awuse v. Odili (2005) 16 NWLR (Pt. 952) at page 504 E-F when the Court said that “the primary function of a pleading is to define and delimit with clarity and precision the real matter in controversy between the parties upon which they can prepare and present their respective cases” and “in addition, it also serves as the basis upon which the Court will be called to adjudicate between them.” PER, HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
PRACTICE AND PROCEDURE: STATEMENT OF CLAIM; EFFECT OF THE ADMISSION OF STATE OF CLAIM THAT IS ADMITTED IN THE STATEMENT OF DEFENCE
Dovetailing from this, is the principle that where a fact in the statement of claim is admitted in the statement of defence, either because it is expressly admitted or because it is impliedly admitted by the omission of the defendant to traverse it expressly, it ceases to be in controversy between the parties and no evidence is required or admitted to prove such fact; and accordingly, only those facts stated in the statement of claim which are expressly traversed in the defence will remain in issue between them. In other words, an issue is a point that has arisen in the pleadings of the parties which forms the basis of the dispute or litigation which requires resolution by the trial Court – African International Bank Ltd v. Integrated Dimensional System Ltd (2012) 17 NWLR (Pt. 1328) 1 at 30-31 G-A. Where parties have in their pleadings agreed on some facts, there is no issue in dispute between them on such agreed matters. When a fact pleaded by the claimant is admitted by the defendant, evidence on the admitted fact is irrelevant and unnecessary. There is no dispute on a fact which is admitted – Bunge v. Governor, Rivers State (2006) 12 NWLR (Pt. 995) 573 at 599-600 B-A, and Akande v. Adisa (2012) 15 NWLR (Pt. 1324) 538. PER, HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
COURT: WHAT THE COURT MUST CONSIDER IN DETERMINING THE CASE MADE BY A PARTY
It is trite that in determining the case made by a party, a Court must read all the paragraphs of the pleadings of the party together to get a flowing story of the party and not a few paragraphs in isolation and it is the totality of the pleadings that states the case of the party – Okochi v. Animkwoi (2003) 18 NWLR (Pt. 851) 1 and Mobil Oil Plc v. Drexel Energy and Natural Resources Ltd (2004) 1 NWLR (Pt. 853) 142. PER, HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
LAND LAW: CONTRACT OF SALE OF PROPERTY; WHAT CONSTITUTE A VALID CONTRACT OF SALE OF PROPERTY
The law is settled that a contract of sale of property exists where there is a final and complete agreement of the parties on essential terms of the contract, namely the parties to the contract, the property to be sold, the consideration for the sale and the nature of the interest to be granted. Once there is an agreement on these essential terms, a contract of sale of land or property is made and concluded and it matters not that the purchaser only made a part payment as in such instance, the law is that the contract for purchase has been concluded and is final, leaving the payment of the balance outstanding to be paid. The contract for the sale and purchase is absolute and complete for which each party can be in breach for non-performance and for which an action can be maintained for specific performance – Biyo v. Aku (1996) 1 NWLR (Pt. 422) 1, Gege v. Nande (2006) 10 NWLR (Pt. 988) 256, Ezenwa v. Oko (2008) 3 NWLR (Pt. 1075) 610, Ohiaeri v. Yusuf (2009) 6 NWLR (Pt. 1137) 207, Mini Lodge Ltd v. Ngei (2009) 18 NWLR (Pt. 1173) 254, Chukwu v. Amadi (2012) 4 NWLR (Pt. 1289) 136. PER, HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
REMEDIES: THE EQUITABLE DOCTRINE OF SPECIFIC PERFORMANCE; THE NATURE OF AN ORDER OF SPECIFIC PERFORMANCE
Now, an order in the nature of specific performance is the rendering, as nearly as practicable, of a promised performance through a judgment or decree. It is a decree issued by the Court which constrains a contracting party to do that which he has promised to do. Specific performance is a Court-ordered remedy that requires fulfillment of a legal or contractual obligation when monetary damages are inappropriate or inadequate. It is a remedy provided by equity to meet those cases where the common law remedy of damages is inadequate. The equitable doctrine of specific performance is discretionary and the dominant principle has always been that equity will grant specific performance if, under all the circumstances, it is just and equitable to do so – Universal Vulcanizing (Nig) Ltd v. Ijesha United Trading and Transport Co. Ltd (1992) 5 NWLR (Pt. 266) 388, Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583, First Bank of Nigeria Plc v. Akinyosoye (2005) 5 NWLR (Pt. 918) 340, Governor of Ekiti State v. Ojo (2006) 17 NWLR (Pt. 1007) 95 at 126F, Ibekwe v. Nwosu (2011) 9 NWLR (Pt. 1251) 1. The point was put by Kay, L.J., in Ryan v. Mutual Tontine Association (1893) 1 Ch 116 at 126 thus:
“This remedy by specific performance was invented, and has been cautiously applied, in order to meet cases where the ordinary remedy by action in damages is not an adequate compensation for breach of contract. The jurisdiction to compel specific performance has always been treated as discretionary, and confined within well known rules.” PER, HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
REMEDIES: ORDER OF SPECIFIC PERFORMANCE; SITUATIONS WHERE AN ORDER OF SPECIFIC PERFORMANCE WILL NOT BE ORDERED
A decree or an order of specific performance will not be ordered or decreed if there is an absolute remedy at law in answer to the claimant’s claim, as, for instance, where the claimant would be adequately compensated by the common law remedy of damages – Afrotec Technical Services (Nig.) Ltd v. MIA & Sons Ltd (2000) 15 NWLR (Pt. 692) 730, Ezenwa v. Oko (2008) 3 NWLR (Pt. 1075) 610, Mustapha v. Abubakar (2011) 3 NWLR (Pt. 1233) 123. The position of the Courts, however, is that in a case involving sale of land, damages cannot adequately compensate a party for breach of a contract for sale of an interest in a particular piece of land or in a particular house – Anaeze v. Anyaso (1993) 5 NWLR (Pt. 291) 1, Ohiwerei v. Okosun (2003) 11 NWLR (Pt. 832) 463, Best (Nig) Limited v. Blackwood Hodge (Nig) Ltd (2011) 5 NWLR (Pt. 1239) 95. Each piece of land is unique, therefore, an award of damages is not adequate compensation for the purchaser – Mustapha v. Abubakar (2011) 3 NWLR (Pt. 1233) 123. The preference is for an order of specific performance – Ohiaeri v. Yussuf (2009) 6 NWLR (Pt. 1137) 207, Olowu v. Building Stock Ltd. (2010) 2 NWLR (Pt. 1178) 310. In Ezenwa v. Oko (2008) 3 NWLR (Pt. 1075) 610, the Supreme Court per Onnoghen, JSC sated thus at page 628 A-B:
“…where there is a subsisting contract or agreement for the sale or lease of land, the Court, being also a Court of equity, is always inclined to grant specific performance because the land being sold or leased may have a peculiar value or significance to the purchaser or lessee, particularly where it is a choice land in a busy commercial center of the town” PER, HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment):This appeal is against the judgment of the High Court of Katsina State in Suit No. KTH/FT/42/2013 delivered by Honorable Justice Ibrahim M. Bako on the 12th of February 2014. The Respondent, as plaintiff, commenced the action in the lower Court against the Appellant, as defendant, by an Originating Summons dated the 14th of January, 2013 wherein he posed one question for determination, and this was:
“Whether the Appellant still maintained the ownership of the property situate and lying at Layin Makarbarta, Dandaji Area, Funtua covered by the Katsina State Government Certificate of Occupancy No. KT. 13938 having sold same to the Plaintiff via a Deed of Assignment executed on the 25th of April, 2010.”
Consequent on the answering of the question, the Respondent claimed the following reliefs:
“i. A declaration that the Respondent is the rightful owner of the property situate and lying at Layin Makarbarta, Dandaji Area, Funtua covered by the Katsina State Government Certificate of Occupancy No KT. 13938.
ii. An order directing the Appellant and/or any other person occupying the premises to vacate and deliver up possession of same to the Respondent with immediate effect.”
The case of the Respondent in the affidavit in support of the Originating Summons was that the Respondent had a business relationship with the Appellant and that the he carried on the business transactions through his agent, one Alhaji Bello Abubukar, and that in the course of the relationship, the Appellant became indebted to him. It was his case that by reason of the indebtedness, the Appellant agreed to sell a house situate and lying at Layin Makarbarta, Dandaji Area, Funtua covered by the Katsina State Government Certificate of Occupancy No. KT. 13938 to him and he purchased the property for the sum N8 Million and that the parties executed a Deed of Assignment on the 25th of April, 2010 and the Appellant handed to him the certificate of occupancy of the house; a copy each of the Deed of Assignment and of the certificate of occupancy were attached as exhibits. It was his case that by the terms of the Deed of Assignment, the Appellant was allowed a grace period of eight months to stay in the house and that this expired in December 2010 and that the Appellant was obligated to hand over the vacant possession of the property to him at the expiration of the grace period, but that after the perfection of the sale of the property and the expiration of the grace period, the Appellant has refused to vacate the property and hand him possession despite repeated demands.
The Appellant filed a counter affidavit in response to the Originating Summons and he admitted collecting monies amount to N8 Million from one Alhaji Bello Abubakar to augment his business and with a promise to pay back within one year and that when he failed to repay the money as agreed, he was granted a further extension of one year to repay the money. It was his case that sometime in 2010 Alhaji Bello Abubakar informed him that the money loaned to him actually belonged to the Respondent and that the Respondent wanted his money back immediately and that when he was unable to raised the funds to repay, Alhaji Bello Abubakar suggested to him the option of selling the property in dispute to the Respondent. It was his case that he agreed to sell the property to the Respondent for the sum of N8 Million in settlement of the loan and that he executed the Deed of Assignment in respect thereof in the presence of the District Head of Funtua and that he handed over the certificate of occupancy over to Alhaji Bello Abubakar. It was his case that sometime in 2011,Alhaji Bello Abubakar came back to tell him that he had the instruction of the Respondent to cancel the sale of property transaction and to demand for the refund of the N8 Million and that in furtherance of this fact, Alhaji Bello Abubakar, on behalf of the Respondent, collected from him three truck loads of maize, with each truck containing three hundred bags and thus making a total of nine hundred bags, at the agreed cost price of N5,700.00 per bag and totaling N5.13 Million in partial settlement of the outstanding sum of N8 Million and this left a balance of N2.87 Million; documents which the Appellant sTated evidenced the transaction were attached as exhibits.
It was the case of the Appellant that after a long period of time, he returned home one evening to learn that Alhaji Bello Abubakar, acting on behalf of the Respondent, brought valuers to the property in issue for the purpose of valuation with an intention to sell same and that he caused his Counsel to write a letter to Alhaji Bello Abubakar and he later reported the matter at the Police Area Command. It was his case that at the Police Area Command, the Area Commander, after listening to Alhaji Bello Abubakar, turned him into the accused person and alleged that he forged the signature of Alhaji Bello Abubakar on the documents he produced to evidence the maize transaction and that he was subsequently charged before the Sharia Court II, Funtua for various offences. It was his case that the Presiding Judge in the Court advised the parties to go back home and seek to resolve the matter amicably, but that all efforts to have the matter resolved amicably failed and that there was no subsisting Deed of Assignment between him and the Respondent to warrant the reliefs sought in the matter by the Respondent.
The lower Court took arguments on the Originating Summons and it delivered a considered judgment wherein it answered the question posed on the Originating Summons in the negative and it granted the reliefs sought by the Respondent. The Appellant was dissatisfied with the judgment and he caused his Counsel to file a notice of appeal dated the 12th of February, 2015 against it and the notice of appeal contained three grounds of appeal. In arguing the appeal before this Court, Counsel to the Appellant filed a brief of arguments dated the 16th of March, 2015 on the 8th of April, 2015. Counsel to the Respondent reacted by filing a brief of arguments dated the 11th of May, 2015 on the 13th of May, 2015. Counsel to the Appellant filed a reply brief of arguments dated the 5th of June, 2015 on the 8th of June, 2015. At the hearing of the appeal, Counsel to the parties relied on and adopted their respective briefs of arguments.
Counsel to the Appellant formulated two issues for determination in this appeal and these were:
“i. Whether from the available facts and the law, the lower Court was not wrong in determining and transferring ownership of the disputed landed property in favour of the Respondent.
ii. Whether having regards to the available facts and the law, the Respondent is not bound by the acts of Bello Abubakar, his agent in the transaction between the parties, to have warranted the ruling of the lower Court to the contrary.”
Counsel to the Respondent adopted the two issues for determination as formulated by Counsel to the Appellant.
In arguing the first issue for determination, Counsel to the Appellant stated that legal interest in land and/or transfer of same can only be determined on a registered instrument of land and he referred to the provisions of Section 15 of the Land Registration Law of Katsina State and the cases of Commissioner for Lands & Housing, Kwara State v. Atanda (2007) 2 NWLR (Pt. 1018) 360 and W.A.C. Ltd v. Yankara (2008) 4 NWLR (Pt. 1077) 323. Counsel stated that the Deed of Assignment relied upon by the Respondent in the instant case can only be admitted to prove an equitable interest in land and that it must be coupled with possession to ground a claim for equitable title and he referred to the cases of Hamidu v. Sahar Ventures Ltd (2004) 7 NWLR (Pt. 873) 618 and Etajata v. Ologbo (2007) 16 NWLR (Pt. 1061) 554. Counsel stated that the Respondent conceded by the second relief sought on the Originating Summons that the Appellant was in possession of the disputed property and that the Respondent further asserted this fact in the affidavit in support. Counsel stated that by the doctrine of stare decisis the decisions in W.A.C. Ltd v. Yankata supra and Etajata v. Ologbo supra ought to have guided the lower Court in determining the issues between the parties in the instant case and that therefore, the entire judgment of the lower Court which was predicated on a registrable instrument which was not registered, an incompetent instrument of title, was wrong and that the lower Court ought to have dismissed the reliefs sought by the Respondent. Counsel urged this Court to thus resolve the first issue for determination in favour of the Appellant.
On the second issue for determination, Counsel referred to the affidavits of the parties and the documents attached to them as exhibits and stated that the averments contained in the counter affidavit were not controverted by a further affidavit and that in matters between the parties as constituted before the lower Court, the affidavits of the parties constituted evidence and that depositions therein which are not contradicted are deemed conceded by the adverse party and he referred to the case of Tukur v. Uba (2012) 10 SCM 139. Counsel stated that it was clear from the facts that Alhaji Bello Abubakar acted as agent of the Respondent in the transaction leading up to the sale of the property in dispute and that there was no evidence on the records that the agency was at any time determined and that as such the action of said Bello Abubakar in the bags of maize transaction as evidenced by documents attached as Exhibit 7 to the counter affidavit were binding on the Respondent and he referred to the case of Osigwe v. PSPLS Mgt Consortium Ltd (2009) 3 NWLR (Pt. 1128) 378. Counsel referred to the signatures of Bello Abubakar on the several documents exhibited by the parties and stated that the relevant documents were not challenged before the lower Court and that the agency of Bello Abubakar was also not denied or limited by the Respondent and that as such, even if the Deed of Assignment relied upon by the Respondent constituted a valid instrument in law, it was no longer valid as it was cancelled by the bags of maize transaction between the Appellant and Bello Abubakar. Counsel stated that in the circumstances, the provisions of Order 37 Rules 8 (1) – (3) of the High Court (Civil Procedure) Rules of Katsina State 1991 relied upon by the lower Court in the judgment was not applicable in the instant case. Counsel urged this Court to also resolve the second issue for determination in favour of the Appellant and to allow the appeal and set aside the judgment of the lower Court.
In his response arguments on the first issue for determination, Counsel to the Respondent conceded that an unregistered instrument affecting land that seeks to confer, transfer, limit, charge or extinguish any interest in land must be registered to make admissible in evidence, but stated that though the Deed of Assignment relied on by the Respondent was not registered and was thus not admissible to prove title to land, it was admissible as evidence in prove of payment of the purchase price and he referred to the case of Etajata v. Ologbo (2007) 16 NWLR (Pt. 1061) 554. Counsel stated that Deed of Assignment could thus be considered as evidence of payment for the property in dispute and that the Appellant did not contest or deny his selling of the property in dispute to the Respondent in his counter affidavit and that this explained the Appellant’s handing over of the certificate of occupancy of the property to the Respondent and that a certificate of occupancy duly issued by a competent authority raises a presumption that the holder is the owner in exclusive possession of the land in respect thereof and he referred to the case of Mani v. Shanono (2007) All FWLR (Pt. 345) 303. Counsel thus urged this Court to resolve the first issue for determination in favour of the Respondent.
On the second issue for determination, Counsel stated that from the facts of this case, the alleged acts of Bello Abubakar in the bags of maize transaction with the Appellant cannot be binding on the Respondent and that it was an attempt by the Appellant to set up an entirely different case between him and Bello Abubakar and that the Appellant ought to have taken advantage of the provisions of Order 37 Rules 8 (1) – (3) of the High Court (Civil Procedure) Rules of Katsina State 1997. Counsel stated that the documents relied on by the Appellant as evidence the bags of maize transaction were the subject of a criminal litigation of forgery against the Appellant and that it was trite law that it is only acts of an agent acting within the scope of his authority that binds the principal and he referred to the case of Ataguba v. Gura (2005) 21 NSCQR 720. Counsel urged this Court to also resolve the second issue for determination in favour of the Respondent and to dismiss the appeal and uphold the judgment of the lower Court.
In the judgment appealed against, the lower Court stated that “the main issue now is whether the Plaintiff is entitled to the determination of the issue raised in the Originating Summons as well as the declaration and consequential relief/order” and it thereafter traversed through the contents of the affidavit in support of the Originating Summons and of the paragraphs of the counter affidavit wherein the Appellant admitted selling the property in dispute to the Respondent. The lower Court noted the submission of the Counsel to the Appellant on the probative value of the Deed of Assignment of the property in dispute and it traversed through the contents of the said Deed of Assignment and of the certificate of occupancy of the property handed over to the Respondent by the Appellant on the completion of sale of the property, and it continued thus:
“I am satisfied, and indeed bound by the Supreme Court decision in Etajata v. Ologbo (supra) that a purchaser of land by virtue of any registrable instrument which not been registered has acquired an equitable interest and that such registrable instrument which has not been registered is admissible to prove an equitable interest as well as the purchase price. It is therefore very wrong to contend that Exhibit 1 attached to the plaintiff’s affidavit has no probative value in the determination of title to land
I quite agree with the submission that a document tendered in Court is the best proof of its content and no oral evidence may be allowed to discredit and/or contradict it.
On the counter affidavit filed by the defendant, I uphold the submissions of the Plaintiff’s Counsel that the 32 paragraph affidavit did not in any way contradict or controvert the contents of the affidavit in support and that of Exhibits 1 and 2. Rather than counter the averments in the Plaintiff’s affidavit, the counter affidavit seems to be setting up a new case or just a counterclaim or counterclaims without answering the issues or facts deposed to. In effect therefore it did not in any way deny the averments. It just appears to be an affidavit in support of claims being set up instead of countering or answering to those already before the Court. It was therefore right for the plaintiff’s counsel to submit that the defendant instead of filing the so-called counter affidavit should have taken advantage of Order 37 Rules 8 Sub-rules (1) – (3) of the High Court Civil Procedure Rules Cap. 60 Laws of KJS 1991.
By his paragraphs 3, 4, 5, 6 of the counter affidavit the defendant seems to have confirmed the averments in paragraph 4(a) (f) of the affidavit in support of the Originating Summons”
The lower Court proceeded to resolve the sole issue for determination raised on the Originating Summons in favour of the Respondent and it granted the reliefs sought.
It is settled law that where an action is commenced by way Originating Summons which is supported by an affidavit and in response to which the defendant files a counter affidavit, as in the instance case, the affidavit in support and counter affidavit constitute the pleadings in the matter, i.e. the statement of claim and the statement of defence respectively in the matter and the principles governing pleadings as to joining of issues apply mutatis mutandi – Nigerian National Petroleum Corporation v. Famfa Oil Ltd (2012) 17 NWLR (Pt. 1328) 148 at 189 E-F. It is elementary that in an action fought on pleadings, the very foundation of the action is the pleadings of the parties. Pleadings are the written statements of the parties setting forth in a summary form the material facts on which each relies in support of his claim or defence, as the case may be. They are the means by which the parties are enabled to state and frame the issues which are in dispute between them and it operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the Court will be called to adjudicate between them – Aminu v. Hassan (2014) 5 NWLR (Pt. 1400) 287, Mbanefo v. Molokwu (2014) 6 NWLR (Pt. 1403) 377 at 418 A-C, Corporate Ideal Insurance Ltd v. Ajaokuta Steel Co. Ltd (2014) 7 NWLR (Pt. 1405) 165 at 188 A-B, Anyafulu v. Meka (2014) 7 NWLR (Pt. 1406) 396 at 424 G. This principle was firmly restated by the Court of Appeal in Awuse v. Odili (2005) 16 NWLR (Pt. 952) at page 504 E-F when the Court said that “the primary function of a pleading is to define and delimit with clarity and precision the real matter in controversy between the parties upon which they can prepare and present their respective cases” and “in addition, it also serves as the basis upon which the Court will be called to adjudicate between them.”
Dovetailing from this, is the principle that where a fact in the statement of claim is admitted in the statement of defence, either because it is expressly admitted or because it is impliedly admitted by the omission of the defendant to traverse it expressly, it ceases to be in controversy between the parties and no evidence is required or admitted to prove such fact; and accordingly, only those facts stated in the statement of claim which are expressly traversed in the defence will remain in issue between them. In other words, an issue is a point that has arisen in the pleadings of the parties which forms the basis of the dispute or litigation which requires resolution by the trial Court – African International Bank Ltd v. Integrated Dimensional System Ltd (2012) 17 NWLR (Pt. 1328) 1 at 30-31 G-A. Where parties have in their pleadings agreed on some facts, there is no issue in dispute between them on such agreed matters. When a fact pleaded by the claimant is admitted by the defendant, evidence on the admitted fact is irrelevant and unnecessary. There is no dispute on a fact which is admitted – Bunge v. Governor, Rivers State (2006) 12 NWLR (Pt. 995) 573 at 599-600 B-A, and Akande v. Adisa (2012) 15 NWLR (Pt. 1324) 538.
Applying these principles to the affidavit in support and the counter affidavit of the parties before the lower Court in the present case, the questions that arise are what was the case of the Respondent and what were the issues contested by the parties? It was not dispute between the parties that the property in dispute in this matter is that situate and lying at Layin Makarbarta, Dandaji Area, Funtua covered by the Katsina State Government Certificate of Occupancy No. KT. 13938. Now, can it be said, in the instant case, that the contest between the parties was on title to this said property in dispute as to require the Respondent to present a registered title document or to lead evidence of payment of purchase price coupled with possession of the property in order to succeed? The Courts have stated that a land dispute is said to arise when parties assert adverse claims of right or interest in the same parcel or parcels of land – Kezie v. Iwuoha (1998) 8 NWLR (Pt. 563) 554 at page 559 D-H and Agu v. Nnadi (2002) 18 NWLR (Pt. 798) 103 at page 117 C-E. Where there are no adverse claims to the same parcel of land, there is no land dispute and ownership of that parcel of land is not put in issue – Ukpanah v. Ayaya (2011) 1 NWLR (Pt. 1227) 61 at page 79 A-E. Did the parties in the present case make adverse claims of right or interest to the property in dispute?
It is trite that in determining the case made by a party, a Court must read all the paragraphs of the pleadings of the party together to get a flowing story of the party and not a few paragraphs in isolation and it is the totality of the pleadings that states the case of the party – Okochi v. Animkwoi (2003) 18 NWLR (Pt. 851) 1 and Mobil Oil Plc v. Drexel Energy and Natural Resources Ltd (2004) 1 NWLR (Pt. 853) 142. Reading through the respective cases of the parties in their affidavits as summarized in the earlier part of this judgment, it is obvious that at no time was title to the property in dispute put in issue. The simple case of the Respondent before the lower Court was predicated on a contract of sale of the property entered into between himself and the Appellant and the terms of which the Appellant had breached and he merely sought to enforce the terms of the contract of sale, and nothing more. The Appellant in response admitted the contract of sale and his case was that subsequent to the contract, events occurred which amounted to a cancellation of the contract and that as such there was no valid and existing contract to enforce. Thus, the issue before the lower Court is whether there was a valid and existing contract of sale of the property in dispute between the parties capable of enforcement.
The contest in this matter was not between two disputants claiming title to and/or ownership of the property in question. Thus, the entire arguments of Counsel to the parties on registered document of title or on unregistered registrable instrument and predicated on the provisions of the Land Instrument Registration Law of Katsina State went outside the issues presented for determination before the trial Court, and are completely irrelevant to the resolution of this appeal. The issue for determination in this appeal is whether the lower Court was right when it held that there was a valid and existing contract of sale of the property in dispute between the parties and consequent on which it answered the sole question for determination on the Origination Summons in the negative and granted the reliefs sought by the Respondent.
The law is settled that a contract of sale of property exists where there is a final and complete agreement of the parties on essential terms of the contract, namely the parties to the contract, the property to be sold, the consideration for the sale and the nature of the interest to be granted. Once there is an agreement on these essential terms, a contract of sale of land or property is made and concluded and it matters not that the purchaser only made a part payment as in such instance, the law is that the contract for purchase has been concluded and is final, leaving the payment of the balance outstanding to be paid. The contract for the sale and purchase is absolute and complete for which each party can be in breach for non-performance and for which an action can be maintained for specific performance – Biyo v. Aku (1996) 1 NWLR (Pt. 422) 1, Gege v. Nande (2006) 10 NWLR (Pt. 988) 256, Ezenwa v. Oko (2008) 3 NWLR (Pt. 1075) 610, Ohiaeri v. Yusuf (2009) 6 NWLR (Pt. 1137) 207, Mini Lodge Ltd v. Ngei (2009) 18 NWLR (Pt. 1173) 254, Chukwu v. Amadi (2012) 4 NWLR (Pt. 1289) 136.
The case of the Respondent before the lower Court was that he purchased the property in dispute from the Appellant for the sum of N8 Million and that the parties executed a Deed of Assignment on the 25th of April, 2010 and the Appellant handed to him the certificate of occupancy of the house; a copy each of the Deed of Assignment and of the certificate of occupancy were attached as exhibits. The Appellant admitted these facts in his counter affidavit and he acknowledged the Deed of Assignment as the contract of sale. The Deed of Assignment contained all the essential terms of the contract of sale of the property, namely the parties to the contract, the property to be sold, the consideration for the sale and the nature of the interest to be granted. The Appellant confirmed receipt of the entire purchase price of N8 Million in the Deed of Assignment and the document thus constituted a conclusive and final contract of sale of the property in dispute by the Appellant to the Respondent. The Respondent was thus entitled to sue for orders in the nature of specific performance where there is a breach of any of the terms of the contract by the Appellant.
It was the case of the Respondent that by the terms of the Deed of Assignment, the Appellant was allowed a grace period of eight months to stay in the house and that this expired in December 2010 and that the Appellant was obligated to hand over the vacant possession of the property to him at the expiration of the grace period, but that after the perfection of the sale of the property and the expiration of the grace period, the Appellant refused to vacate the property and hand him possession despite repeated demands. Clause 3 of the Deed of Assignment confirmed the assertion of the Respondent on the grace period and the Appellant admitted that he remained in possession after the grace period and his Counsel submitted in this appeal that the Appellant was yet to vacate the property till date, six years thereafter.
Now, an order in the nature of specific performance is the rendering, as nearly as practicable, of a promised performance through a judgment or decree. It is a decree issued by the Court which constrains a contracting party to do that which he has promised to do. Specific performance is a Court-ordered remedy that requires fulfillment of a legal or contractual obligation when monetary damages are inappropriate or inadequate. It is a remedy provided by equity to meet those cases where the common law remedy of damages is inadequate. The equitable doctrine of specific performance is discretionary and the dominant principle has always been that equity will grant specific performance if, under all the circumstances, it is just and equitable to do so – Universal Vulcanizing (Nig) Ltd v. Ijesha United Trading and Transport Co. Ltd (1992) 5 NWLR (Pt. 266) 388, Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583, First Bank of Nigeria Plc v. Akinyosoye (2005) 5 NWLR (Pt. 918) 340, Governor of Ekiti State v. Ojo (2006) 17 NWLR (Pt. 1007) 95 at 126F, Ibekwe v. Nwosu (2011) 9 NWLR (Pt. 1251) 1. The point was put by Kay, L.J., in Ryan v. Mutual Tontine Association (1893) 1 Ch 116 at 126 thus:
“This remedy by specific performance was invented, and has been cautiously applied, in order to meet cases where the ordinary remedy by action in damages is not an adequate compensation for breach of contract. The jurisdiction to compel specific performance has always been treated as discretionary, and confined within well known rules.”
A decree or an order of specific performance will not be ordered or decreed if there is an absolute remedy at law in answer to the claimant’s claim, as, for instance, where the claimant would be adequately compensated by the common law remedy of damages – Afrotec Technical Services (Nig.) Ltd v. MIA & Sons Ltd (2000) 15 NWLR (Pt. 692) 730, Ezenwa v. Oko (2008) 3 NWLR (Pt. 1075) 610, Mustapha v. Abubakar (2011) 3 NWLR (Pt. 1233) 123. The position of the Courts, however, is that in a case involving sale of land, damages cannot adequately compensate a party for breach of a contract for sale of an interest in a particular piece of land or in a particular house – Anaeze v. Anyaso (1993) 5 NWLR (Pt. 291) 1, Ohiwerei v. Okosun (2003) 11 NWLR (Pt. 832) 463, Best (Nig) Limited v. Blackwood Hodge (Nig) Ltd (2011) 5 NWLR (Pt. 1239) 95. Each piece of land is unique, therefore, an award of damages is not adequate compensation for the purchaser – Mustapha v. Abubakar (2011) 3 NWLR (Pt. 1233) 123. The preference is for an order of specific performance – Ohiaeri v. Yussuf (2009) 6 NWLR (Pt. 1137) 207, Olowu v. Building Stock Ltd. (2010) 2 NWLR (Pt. 1178) 310. In Ezenwa v. Oko (2008) 3 NWLR (Pt. 1075) 610, the Supreme Court per Onnoghen, JSC sated thus at page 628 A-B:
“…where there is a subsisting contract or agreement for the sale or lease of land, the Court, being also a Court of equity, is always inclined to grant specific performance because the land being sold or leased may have a peculiar value or significance to the purchaser or lessee, particularly where it is a choice land in a busy commercial center of the town”
The unchallenged facts in this matter confirm the case of the Respondent and thus entitle him to the reliefs sought on the Originating Summons.
This takes us to the case of the Appellant in his counter affidavit. It was his case that sometime in 2011, Alhaji Bello Abubakar came back to tell him that he had the instruction of the Respondent to cancel the sale of property transaction and to demand for the refund of the N8 Million and that in furtherance of this fact, Alhaji Bello Abubakar, on behalf of the Respondent, collected from him three truck loads of maize, with each truck containing three hundred bags and thus making a total of nine hundred bags, at the agreed cost price of N5,700.00 per bag and totaling N5.13 Million in partial settlement of the outstanding sum of N8 Million and this left a balance of N2.87 Million; documents which the Appellant stated evidenced the transaction were attached as exhibits. It was his case that there was no subsisting Deed of Assignment between him and the Respondent to warrant the reliefs sought in the matter by the Respondent. The document said to evidence the bags of maize transaction was dated the 25th of April, 2011 and its English translation read thus:
“I, Alh. Bello Abubakar of the above address have collected nine hundred (900) bags of maize from Mal. Aminu Surajo at the rate of 5,700 per bag totaling the sum of N5,130,00… in place of the money he is supposed to return to collect his house he sold to Dr.Alh. Salisu Ingawa the house located along Makabarta Street, Dandaji, Fashari Road, Funtua with Certificate No. KJ13938 at the rate of N8,000,000.00 on the assurance that I will not add any interest because of our relationship. I was instructed to tell him to continue to live in his house, but we will not return to him his certificate of his house until he gives the balance of N2,870,000. This agreement came as a result of understanding between us because we do not want to break the relationship between us. See a copy of his agreement in the hands of Mal. Aminu Surajo. Me, representative of Dr. Alh. Salisu Ingawa, Alh. Bello Abubakar, the original copy of this agreement is with me”
Counsel to the Appellant submitted that the Respondent did not challenge or contest the averments or the contents of the document by a further affidavit and that this amounted to a concession as to their truth by the Respondent. It is trite law that although the Courts are enjoined to presume the facts averred in an affidavit which are not challenged or controverted by a response affidavit to be true and correct, this does not mean that the Court must ipso facto believe those facts as stating the whole truth and the Court still has a duty to appraise the depositions and decide on their merit -Okoye v. Center Point Merchant Bank Ltd (2008) All FWLR (Pt. 441) 810, Enugu State University of Science and Technology v. Institute of Journalism Management and Education Ltd (2010) 11 NWLR (Pt. 1205) 297, Francis v. Citec International Estate Ltd (2010) 16 NWLR (Pt. 1219) 243, Ahmed v. Central Bank of Nigeria (2013) 11 NWLR (Pt. 1365) 352. In Neka B.B.B. Manufacturing Co. Ltd v. African Continental Bank Ltd (2004) 2 NWLR (Pt. 858) 521, Pats-Acholonu, JSC at page 551 put the point thus:
” I am familiar with the case of Odulaja v. Haddad (1973) 1 All NLR 191 to the effect that an evidence not challenged by the party that had opportunity to do so should ordinarily be believed and accorded credibility. I believe such holding rests on the premise that such evidence is capable of being believed if not challenged. In other words, when the evidence is weak in content as not to assist the Court or is manifestly unreasonable or is devoid of any substance as not to help to resolve the matter in issue it will safe to ignore it as it does not attain the standard of credibility. Although it is the general rule that uncontradicted evidence from which reasonable people can draw but one conclusion may not ordinarily be rejected by the Court but must be accepted as true, it is also true that the Court is not in all circumstances bound to accept as true testimony an evidence that is uncontradicted where it is willfully or corruptly false, incredible, improbable or sharply falls below the standard expected in a particular case.”
The essence of the averments, as stated by the Counsel to the Appellant, was that they amounted to a cancellation of the Deed of Assignment evidencing the contract of purchase of the property in dispute. Cancellation of a deed means to destroy the force, effectiveness or validity of; to annul, abrogate or terminate, defacement or mutilation of instruments, words of revocation written across the instrument’s face, striking out the party’s signature. The cancellation of a deed is accomplished by obliterating or removing the seal or otherwise altering or defacing it with intent that it shall become void. A deed may be lawfully cancelled either by the person who has it in his possession as being solely entitled under it or by anyone (including the party bound by the deed) to whom the person has delivered it up to be cancelled. It may also be cancelled by mutual consent or under the terms of agreement between the parties or by an order of Court. When a deed is cancelled it becomes void and no action can thereafter be maintained on any covenant or promise contained in it – Nnubia v. Attorney-General, Rivers State (1999) 3 NWLR (Pt. 593) 82 and Ajagungbade III v. Adeyelu II (2001) 16 NWLR (Pt. 738) 726 at 192-193.
And, just like it is trite law that only parties to a contract can enforce it and a contract cannot be enforced by a person who is not a party, even if the contract is made for his benefit and purports to give him the right to sue upon it, the issue of cancellation of a deed can only be at the instance of the parties to the deed or of persons claiming through or under them -Foko v. Foko (1968) NMLR 441, Agbo v. Nwokolo (1975) 5 ESCLR 300, Adegbayi v. Ishola (2003) 11 NWLR (Pt. 831) 343, Nangibo v. Okafor (2003) 14 NWLR (Pt. 839) 78, Shobajo v. Ikotun (2003) 14 NWLR (Pt. 840) 237, Ironbar v. Federal MortgagenFinance (2009) 15 NWLR (Pt. 1165) 506.
In the present case, it was not the case of the Appellant before the lower Court that the Deed of Assignment of the property in dispute was cancelled by the Respondent, being the person solely entitled under it, and neither was it his case that Deed of Assignment was delivered up to him or to Alhaji Bello Abubakar by the Respondent to be cancelled. It was not the case of the Appellant that the Deed of Assignment was defaced, mutilated and/or that the words of revocation were written across its face and signed by the parties. Also, the parties to the Deed of Assignment were the Appellant and the Respondent and the Respondent executed the Deed of Assignment personally and not through any agent. It is only commonsensical that any mutual consent or terms of agreement to cancel the Deed of Assignment must be entered by the Appellant and the Respondent personally, and not through a third party.
Additionally, and more importantly, it is trite where there is a dispute as to whether or not a deed has been cancelled, the party asserting cancellation of the deed must seek an order of Court cancelling the deed, and cannot presume or unilaterally proceed to treat the deed as cancelled. It is only a Court that has the competence in law to make an order cancelling a deed of assignment or conveyance in such circumstances and this is after hearing the parties – Nangibo v. Okafor (2003) 14 NWLR (Pt. 839) 78. It is in an action in which mistake, misrepresentation or fraud, actual or constructive mistake, or undue influence, is properly pleaded that cancellation would be the appropriate and effective remedy – Olanika v. Akingbelue (1963) WNLR 41, Nnubia v. Attorney General, Rivers State (1999) 3 NWLR (Pt. 593) 82, Ajagungbade III v. Adeyelu II (2001) 16 NWLR (Pt. 738) 126 at 193, Adegbayi v. Ishola (2003) 11 NWLR (Pt. 831) 343, Shobajo v. Ikotun (2003) 14 NWLR (Pt. 840) 237.
In the instant case, the Appellant averred that Alhaji Bello Abubakar reported to the Police that his signature on the document said to evidence the bags of maize transaction was forged and whereupon he, the Appellant, was arrested and charged before the Sharia Court II, Funtua for various offences. The Appellant further averred that the Presiding Judge in the Sharia Court encouraged the parties to return home and try to resolve the matter amicably but that all steps taken to resolve the matter amicably proved abortive. These were an acknowledgment by the Appellant that there was a dispute on the issue of the cancellation of the Deed of Assignment of the property in dispute, yet he neither claimed nor counterclaimed for an order of cancellation before the lower Court. The Appellant cannot be said to have made out a credible case of cancellation of the Deed of Assignment of the property in dispute in the circumstances of this case. The lower Court was thus on very firm ground when it answered the sole question posed on the Originating Summons in the negative and proceeded therefrom to grant the reliefs sought by the Respondent.
Before concluding this appeal, this Court considers it pertinent to comment on the quality of the brief of argument filed by Counsel to the Respondent. The purpose of briefs of arguments filed by parties to an appeal is to assist the Court in determining with precision and in a concise manner the real issues in controversy between the parties and to marshal their arguments and submissions in a way that makes it easy for the Court to discharge this function. Briefs of arguments in an appeal contain the story of a party on which the appellate Court Justices are called upon to adjudicate. Like all good stories, the arguments in the brief must flow; they must be consistent, they must the concise, they must be comprehensive, they must be comprehensible; and they must be accurate. The Respondent’s brief of arguments was the epitome of confusion and the submissions contained therein were directionless and incomprehensible. The submissions showed that Counsel did not give adequate thought to and/or carry out a proper reflection on the real matter in controversy between the parties. Counsel just chased shadows and he presented disjointed arguments, even on the shadows chased. This Court wishes to place on record that it derived no benefit or assistance whatsoever from the Respondent’s brief of arguments in this appeal.
In conclusion, this Court finds no merit in the appeal and it is hereby dismissed. The judgment of the High Court of Katsina State in Suit No. KTH/FT/42/2013 delivered by Honorable Justice Ibrahim M. Bako on the 12th of February, 2014 is hereby affirmed. The Respondent will not be awarded any cost of this appeal because of the quality of the brief of arguments of his Counsel. The parties shall bear their respective costs of the appeal. These shall be the orders of this Court.
IBRAHIM SHATA BDLIYA, J.C.A.: I have had the advantage of reading in draft the judgment just delivered by my learned brother, H. A. ABIRU J.C.A, My learned brother has had dealt with all the issues raised in the appeal extensively and exhaustively, leaving no space for me to make contributions. I hereby adopt the reasoning and conclusions contained therein as mine, and do hereby dismiss the appeal for lacking in merit. I abide by the order made as to costs.
AMINA AUDI WAMBAI, J.C.A.: I have read in draft the lead Judgment just delivered by my learned brother, HABEEB A. O. ABIRU, JCA. I agree with the reasoning and conclusion that there is no merit in this appeal. I also dismiss the appeal as lacking in merit. I abide by the consequential Orders in the lead Judgment.
Appearances
A. U. AjodoFor Appellant
AND
Lawal AmahFor Respondent
