ALIYU KHAMA HASSAN & ANOR v. ALH. ALI DAGAN-DAGA
(2019)LCN/13032(CA)
In The Court of Appeal of Nigeria
On Friday, the 5th day of April, 2019
CA/YL/39/2018
RATIO
CONTRACT: INSTANCES WHEN A NEW CONTRACT IS CREATED
I cannot fault the conclusion arrived at by the trial Court when it held that title or interest had passed to the respondent over the property in dispute in the light of the conduct of the 1st appellant who having claimed to have rescinded the contract between him and the respondent yet reneged from that position and took or collected payments outside that limited time period those payments were made to him. The trial Court rightly observed that by this conduct, the 1st appellant had renewed the contract between him and the Respondent. There cannot be any better evaluation of the facts and evidence in this case as done by the trial Court. The delay in the delivery of judgment notwithstanding, I am of the view that the trial judge fully grasped all the issues before him and adequately addressed them. In my view therefore, the suggestion of a miscarriage of justice as having been occasioned is a hoax. It does not exist. Hence Issue No. 1 in the appellants brief of argument is resolved against them and in favour of the respondent.PER SAIDU TANKO HUSSAINI, J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
Between
1. ALIYU KHAMA HASSAN
2. SULE ADAMU Appellant(s)
AND
ALH. ALI DAGAN-DAGA Respondent(s)
SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): The appellants were the plaintiffs who instituted action at the High Court of Taraba State and claimed sundry reliefs, as per paragraph 20 of the amended statement of claim dated 14th February, 2011. Put briefly, the appellants? claim at the trial Court against the respondent was for:
(a) A Declaration of title to the 5 room apartment situate at No. 9 Atoshi Street, Wukari.
(b) A Declaration that the defendant, is a licensee of the 1st plaintiff on the property at No. 9 Atoshi Street, Wukari.
(c) A Declaration that the defendant is in breach of the Sales Agreement in respect of the house at No. 9 Atoshi Street, Wukari.
(d) A Declaration that the rescission of the Sale Agreement by the plaintiff was valid.
(e) A Declaration that the Sale of the house to the 2nd plaintiff is valid.
(f) A Declaration that the 2nd plaintiff is now the owner of the 5 room apartment at No. 9 Atoshi Street, Wukari.
(g) An Order directed on the defendant to vacate the house at No. 9 Atoshi Street, Wukari.
(h) N250,000.00 general damages.
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(i) N150,000.00 cost for filing and prosecuting the suit.
The Respondent was the defendant at the trial Court. He filed a defence and a counter-claim, wherein he sought for:-
(i) An Order of specific performance to compel the 1st plaintiff to collect the outstanding balance of N40,000.00 only.
(ii) Declaration of title to the 5 (five) rooms in his possession and ownership for over 30 years unchallenged.
(iii) Declaration that the transaction between him and the 1st plaintiff was purely one of selling and buying after he had collected a total sum of N360,000.00 from the defendant.
(iv) An Order setting aside any sale at all between the 1st plaintiff and the 2nd plaintiff and
(v) N500,000.00 general damages plus cost of filing this counter-claim.
The appellants also filed their defence to counter-claim hence issues had been joined at the close of pleadings. Parties at the hearing called evidence of witnesses and also tendered documentary evidence.
The case for the 1st appellant as garnered from the printed record of appeal is that he is the owner of the house and premises comprising of 5 (five) rooms by dint of
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the purchase or dealings he struck with Alhaji Lawan Abdul-Qadir, the original owner of the premises. He contended that the facts of the sale of the house comprising 5 rooms were brought to the Notice and Knowledge of the respondent, the person then in occupation of the building and accordingly requested of him to vacate the house and give up possession of same. Rather than giving up possession the respondent indicated interest in the building and appealed to the organization, Wukari Muslim Counsel to prevail on the 1st appellant and allow him purchase the 5 room apartment from him (appellant). A deal was struck and the sum of N400,000.00 was agreed upon as purchase price for the 5 (five) rooms apartment. The duration for payment according to the 1st Appellant was put at three (3) weeks from the date of conclusion of negotiation or agreement which was oral.
Several weeks later no payments had been made. Weeks ran into months and still no payment was made despite repeated demands until the respondent at last made part payment of the sum of N96,000.00 into the account of the 1st Appellant who, now fed up with this waiting game, rescinded the agreement,
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even at this point in time when the respondent had made additional payments to bring the payments made by him to N160,000.00 by way of transfer or deposits made into the account of the appellant in his Bank. The appellant sought to return those monies to the respondent but the latter refused or declined to take his money back.
In the meantime, the 1st appellant having rescinded the Sale of the house to the respondent, went into a new arrangement and sold the house comprising of 5 (five) rooms to the 2nd plaintiff now 2nd appellant since the respondent was not forth coming.
The facts leading to this case, from the perspectives of the respondent is that he is the owner of the house or building in dispute and has lived in the house since 1980 with his father in his life time. Respondent however conceded to the claim or contention that Alhaji Abdulkadir was the original owner of the premises who permitted his late father to construct or build 2 (two) rooms within the premises where himself and his father lived. According to the respondent, he put up or built 3 (three) more rooms on the same premises after the death of his father to bring the total
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number of rooms built by him and his father to 5(five). When however the 1st appellant told him (respondent) that he was now the new owner of the premises and the house in question, he approached the Muslim Council in Wukari to intervene and allow him pay for or purchase the 5 rooms apartment.
To the respondent a total sum of N360,000.00 leaving only N40,000.00 had been paid by him to the appellant as outstanding. The respondent denied the suggestion or claim that the agreement between him and the 1st appellant required of him to pay the purchases price within a limited period of 3 (three) weeks as contended by appellants.
The trial Court, took evidence of witnesses of parties on both sides and in the considered judgment delivered as aforesaid, dismissed the claim of the appellants and granted the counter-claim of the respondent.
Not happy with this judgment and order, the appellants approached this Court by way of the Notice of Appeal on the 9th November, 2016. (Record: Pages 196-197). By dint of the amended notice of appeal, deemed properly filed and served on the 12th November, 2018, the appeal to this Court is on 3 (three)
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grounds, reproduced below together with the particulars namely:
(i) The Judgment of the lower Court is against the weight of Evidence.
(ii) The learned trial judge erred in law when he gave judgment without jurisdiction which decision occasioned miscarriage of justice.
PARTICULARS OF ERROR
a. Parties adopted their final written address on the 26th May, 2016 and the learned trial judge delivered his judgment on the 7th day of October, 2016.
b. By Section 294 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) every Court of law ought to deliver its decision 90 days after the conclusion of evidence and adoption of final addresses.
c. The decision was based on pleaded facts completely.
d. The trial Court muddled up the facts and issues in the case.
e. The trial Court lose its recollection of the demeanour and presentation of witnesses during the trial therefore serious miscarriage of justice is occasioned in the judgment.
(iii) The learned trial judge erred in law when he ordered specific performance in a contract of sale of land and has occasioned grieve (sic)
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injustice.
PARTICULARS OF ERROR
a. The record clearly shows that parties enter an oral contract for the sale of land, the subject matter in dispute.
b. The defendant/Respondent failed to pay the complete purchase price after several demands thereby repudiate the contract.
c. Failure to pay the complete purchase price under a contract of sale of land constitutes a fundamental breach which goes to the root of the contract.
The appellants filed their joint brief of argument and raised 3 (three) issues for determination of court, namely:-
a. Whether the learned trial judge delivered its judgment outside the statutory period, and as the result occasioned miscarriage of justice (Ground 2).
b. Whether a party to a contract of sale of land has a right to rescind the contract on account of breach of payment or within a reasonable time (Ground 3).
c. Whether from the pleadings and evidence the learned trial judge was right in dismissing the Appellants? case? (Ground 1).
There was no brief filed for the respondent who did not also take any further steps even when the
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appeal came up for hearing on the 12th January, 2019. Mr. B. A, Amoke for the appellant adopted this brief of argument to urge on this Court, to allow this appeal and set aside the judgment delivered at the trial Court and grant the claim of the appellant at that Court.
There being no brief of argument for the respondent, this appeal was heard as an uncontested appeal case based solely on the points or issues argued or canvassed in the appellants? brief of argument.
Relative to Issue 1 reproduced earlier on, there can be no contrary argument that the judgment appealed against was delivered outside 90 (ninety) days. The record of appeal before us, said so. Counsel?s final addresses were taken on the 26th May, 2016. The trial Court on the said date adjourned the case for delivery of Judgment on 27th June, 2016. It was not to be, given the fact that the Record of appeal at pages 167-195 indicate clearly that judgment was delivered on the 7th October, 2016. Between the 26th May, 2016 when final address of counsel were taken and 7th October, 2016 is a period of about 4 months and 2 weeks.
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The Constitution of the Federal Republic of Nigeria, 1999 (as amended) makes provision for delivery of judgments of Court within 90 days at the close of final addresses of counsel. By reason of the late delivery of judgment appealed against, there is failure of compliance with provisions of Section 294(1) of the Constitution (as amended). However, mere delay or non compliance in the delivery of judgment without more is not enough reason to set aside the decision appealed against. See Ogundele v. Fasu (1999) 12 NWLR (Pt. 632) 662; Sembe & Ors v. Pitti (2016) LPELR-40822 (CA).
Judgment or decision of Court may be set aside on account of miscarriage of justice occasioned by undue delay in the delivery of that judgment. It is the submission of learned counsel that the appellant has suffered a miscarriage of justice by the failure of the court below to appreciate and evaluate evidence placed before it. As for instance, in reference to the record at pages 194-195, he argued that the Court was in error to hold that the respondent has better title to the property in dispute, notwithstanding that interest in the property in dispute was only created by the agreement between the respondent and the
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1st appellant of which the respondent was alleged to be in breach of the terms.
Learned counsel has argued that the agreement between the 1st appellant and the respondent would not have been necessary if indeed the respondent was the owner of the property in dispute. He argued that the trial Court failed to appreciate or consider those facts due primarily to the long delay in the delivery of judgment, the Court had lost grasp of the facts and evidence before it hence the erroneous conclusion arrived at by the Court below. To this end, as argued by counsel, there was miscarriage of justice. Learned counsel further referred us to page 189 of the record, particularly at lines 5-10 where the trial Court found as follows:-
The conduct of the 1st plaintiff on the 2nd May, 2019 shows clearly new agreement has been created by the conduct of the parties.
Learned appellants counsels argument is that this finding has no bearing to the case before the trial Court hence the same has impacted negatively on the appellants whose claim was dismissed on account of this finding or remark made by the Court. Learned
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counsel queried how that new agreement was created, where and by who He argued that it is not the duty of the Courts to create contracts for parties where non exist in the pleadings and evidence led by parties in that case. Relying therefore on MTN (NIG.) Communications Ltd v. Saiku (2014) 17 NWLR (Pt. 1436) 382, 415, he argued that the trial Court has lost grips of the case due to the long delay in the delivery of judgment. We were urged to resolve this Issue No. 1 in favour of the appellant and allow this appeal.
I have considered those submissions made by counsel particularly the submission with reference to page 189 and pages 194-195 of the record of judgment on the evaluation of evidence before the trial Court as it relates to the transaction or agreement between the 1st appellant to sell the 5 room apartment. I cannot fault the conclusion arrived at by the trial Court when it held that title or interest had passed to the respondent over the property in dispute in the light of the conduct of the 1st appellant who having claimed to have rescinded the contract between him and the respondent yet reneged from that position and took or
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collected payments outside that limited time period those payments were made to him. The trial Court rightly observed that by this conduct, the 1st appellant had renewed the contract between him and the Respondent. There cannot be any better evaluation of the facts and evidence in this case as done by the trial Court. The delay in the delivery of judgment notwithstanding, I am of the view that the trial judge fully grasped all the issues before him and adequately addressed them. In my view therefore, the suggestion of a miscarriage of justice as having been occasioned is a hoax. It does not exist. Hence Issue No. 1 in the appellants? brief of argument is resolved against them and in favour of the respondent.
While considering Issue No. 1 in this appeal, I alluded to Issue No. 2 as identified by the appellant in his brief of argument. Issue No. 2 is:-
Whether a party to a contract of sale of land has a right to rescind the contract on account of breach of payment of the consideration at the time agreed for such payment or within a reasonable time
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Learned appellants counsel gave affirmative answers to this question and submitted that the 1st appellant having effectively rescinded or revoked the contract between him and the respondent, he (1st appellant) could negotiate another contract on the same building and this he did when the 1st appellant subsequently sold the house to the 2nd appellant.
I want to observe here that the agreement for the sale of the 5 rooms apartment to the respondent by the 1st appellant was oral as there was nothing reduced into writing about that agreement. It was the 1st appellant and witnesses called by him who stated this in their evidence that the agreement prescribed a time limit within which payment of the purchase price was to be made by the respondent to the appellant. Even at that, I can observe still that PW1, PW2, PW3 and PW4 did not speak with one voice on the time duration limited for the payment of the purchase price. I can refer to evidence of plaintiff?s witnesses as reflected on the record of appeal at pages 22-26, 48-51, 52-56 and 63-64 respectively.
It is for the plaintiffs/appellants to prove their case, in this instance, that the agreement required the respondent to make payment of
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purchase price within a prescribed time frame. I do not think that the appellants succeeded in doing that. However granted that there was such term in place which was not honoured by the respondent, the conduct exhibited by the 1st appellant clearly reveal that he had overlooked respondents iniquities if any, when he accepted those payments made to him outside the ?agreed? period. I refer to the evidence from the 1st appellant himself speaking as P.W.4 at pages 92-94 of the record and his statement under oath. At page 64 of the record of appeal, the 1st appellant deposed, at paragraph 11 of the said statement, the fact that:
After three months of the said agreement and the defendant had not paid, I made series of oral demands and complaints to the defendant before he paid the sum, N160,000.00 only into my account.
That was the evidence supplied by the 1st appellant himself before the trial Court. Having himself, on his own demanded for that payment, notwithstanding that the time for payment had elapsed, he had by that conduct waived that term of the arrangement if at all it ever existed, hence a
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new arrangement now came into play. The trial Court was right when it held that by the conduct displayed by the appellant, a ?new contract? had been formed. I cannot agree less. That is not all. Even after the 1st appellant had collected the money, more payments were still made into the account of the 1st appellant by the respondent. I refer to the evidence of the respondent as DW2 at pages 107 to 111 of the record of appeal along with his Statement made under oath at pages 76 to 80 of the record of appeal and Exhibit D1, the bundle of the receipts or teller, with which those payments were made or lodged into the account of the 1st appellant. All these payments were made subsequent to the alleged or purported revocation of the contract by the 1st appellant. The law is not on the side of the appellant in those circumstances.
Therefore, on the comparative analysis of the facts on the ground at that material time, title or interest in the property in dispute had transferred from the 1st appellant to the respondent by the payment of the purchase price of N400,000.00 less N40,000.00. Hence the purported rescission or revocation of the contract
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by the 1st Appellant is of no consequence. Issue No. 2 ought to be resolved against the appellants and I so hold.
The question posed under Issue No. 3 is whether from the pleadings and evidence, the learned trial judge was right in dismissing the appellant?s case? This question flows from Issue No. 1 and 2 discussed above and without much ado I answer the poser in the affirmative and resolve Issue No. 3 also in favour of the respondent and against the appellants.
The appeal on the whole is dismissed by me. I affirm the judgment delivered at the High Court of Justice of Taraba State on 7th October, 2016 vide Suit No. TRSW/9/2010.
The respondent is entitled to cost and the sum of N100,000.00 is assessed against the appellants.
That is the order and judgment.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading the draft of the leading judgment, in this appeal, just delivered by my learned Brother Saidu Tanko Husaini, JCA.
I agree with the line of reasoning and conclusion reached by His Lordship, in the said leading judgment, that the appeal is unmeritorious. I equally dismiss the
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appeal and abide by the consequential orders made therein, including that of costs.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the lead judgment just delivered by my learned brother, Saidu Tanko Husaini JCA.
He had clearly and exhaustively dealt with the issues for determination. I have nothing more useful to add.
For the reasons contained in the lead judgment which I adopt as mine, I too dismiss the appeal.
I abide by all other orders including the order as to costs.
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Appearances:
B. A. Amoke, Esq.For Appellant(s)
No AppearanceFor Respondent(s)
Appearances
B. A. Amoke, Esq.For Appellant
AND
No AppearanceFor Respondent
