ANDREW NJOKU v. CHIEF (MRS) ROSE EMENIKE & ANOR (2017)

ANDREW NJOKU v. CHIEF (MRS) ROSE EMENIKE & ANOR

(2017)LCN/9471(CA)

In The Court of Appeal of Nigeria

On Friday, the 10th day of February, 2017

CA/OW/16M/2012

RATIO

EVIDENCE: DOCUMENTARY EVIDENCE; THE RELATIONSHIP BETWEEN DOCUMENTARY EVIDENCE AND ORAL EVIDENCE
documentary evidence should be used as a hanger from which to assess the oral evidence. See FASHANU V ADEKOYA (1974) ANLR 32 at 37-38; EGHAREVBA V OSAGIE (2009) 18 NWLR (PT 1173) 2999. PER ITA GEORGE MBABA, J.C.A

LAND LAW: THE POSITION OF LAW ON PAYMENT OF PURCHASE PRICE AS A CONDITION PRECEDENT FOR ORDER OF SPECIFIC PERFORMANCE
In 2009 the position of the law on this point was considered by the Supreme Court in OHIAERI V YUSUF & ORS (2009) 6 NWLR (PT 1137) 207, (2009) 2-3 SC. 20?
Tabai JSC had this to say:-
“The established legal principle is that where there is an agreement for sale of land either under Native Law and Custom or any 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 as equitable interest in the property and which interest ranks as high as a legal estate and cannot therefore be overridden by a subsequent legal estates erected by the same vendor or his legal representative in favour of another person.
Recently in OGUNDALU V MACJOB (2015) LPELR SC 185/2006 the Supreme Court further considered this legal position. RHODE VIVOR J.S.C. while delivering the leading judgment had this to say:
“In ODUSOGA V RICKETTS, (1997) SC NJ 135 this Court held that to constitute a valid sale of land under Customary Law three essential ingredients are required and they are:-
(1) Payment of the purchase price
(2) Purchaser is let into possession by the vendor and in the presence of witnesses.
It follows that where the purchase price is not fully paid there can be no valid sale even if the purchaser is in possession (as in this case). Where part payment of the purchase price was made and the purchaser defaults in paying the balance within a reasonable time the vendor would be at liberty to re-sell since legal title remains with the vendor until full price is paid by the purchaser
The reliance of the Apex Court on ODUSOGA V RICKETTS (supra) OGUNDALU V MACJOB (supra) has made the position of the law clear on when the non-payment of the full purchase price came about as a result of the balance being tendered but rejected even though within a reasonable time.
OGUNDARE J.S.C. in ODUSOGA V RICKETTS (supra) explained the position of the law further on this thus:
“Where however part payment of the purchase price was made and the balance is tendered within the stipulated time the vendor cannot resile from the contract of sale and the purchaser in possession will be entitled to a decree of specific performance. See also MAYSON V CLONET (1924) A-C 980 at 985.
What can be deduced from the above authorities are:
(1) Payment of purchase price of land is a vital ingredient of a valid sale of land ODUSOGA V RICKETTS (supra).
(2) Where however there is part payment of the purchase price together with possession:
(a) It must be within the terms of the agreement OHIAERI VS YUSUF
(b) Full payment must be made within reasonable time OGUNDALU V MACJOB (supra)
(c) A tender of the balance within the stipulated time validates the contract of sale of land. The purchaser in that wise will be entitled to a decree of specific performance OGUNDALU V MACJOB (supra)
(d) I need to add that the principles in ODUSOGA V RICKETTS (supra) apply to both customary and non -customary sale of land. See MAYSON V CLONET (supra) ODUSOGA V RICKETTS (supra). PER TUNDE OYEBANJI AWOTOYE, J.C.A.

LAND LAW: CAN A VENDOR RESILE FROM SALE OF CONTRACT AFTER THE NECESSARY REQUIREMENTS FOR SALE HAVE BEEN FULFILLED
The law, however, is that, where part payment of the purchase price was made and the balance is tendered within the stipulated time or, in the absence of a stipulated time, within a reasonable time, the vendor cannot resile from the contract of sale and the purchaser, in possession will be entitled to a decree of specific performance. See Odusoga & Anor vs. V. L. L. Ricketts (1997) 7 NWLR (Pt.511); (1997) LPELR 2256 (SC); Ohiaeri v. Yusuf (2009) 6 NWLR (Pt.1137) 207; Minilodge vs. NGE (2009) 7 NWLR (Pt.1173) 254; Oshafunmi & Anor vs. Adepoju & Anor (2014) LPELR 23073 (CA). PER ITA GEORGE MBABA, J.C.A

JUSTICES

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

Between

ANDREW NJOKU Appellant(s)

AND

1. CHIEF (MRS) ROSE EMENIKE
2. CHIEF OBI EMENIKE Respondent(s)

TUNDE OYEBANJI AWOTOYE, J.C.A.(Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by the (claimant) appellant against the decision of Abia High Court sitting at Osisioma Ngwa (CORAM C. C. T. ADIELE J.) in Suit No. HOS/46/2006. Andrew Njoku v Chief (Mrs) Rose Emenike and 1 Or delivered on 10/3/2011.

The claimant?s claim at the lower Court as per Paragraph 40 of his statement of claim reads thus:
?WHEREFORE the plaintiff has been damnified and claims against the defendants jointly and severally as follows:-
(i) an order of specific performance compelling the defendants being the lawful heirs to the estate of Chief M.I. Emenike, deceased to execute a deed of irrevocable power of attorney in triplicates in favour of the plaintiff in respect of the piece of land municipally known as and called No.1 Amaechi Street, Umungasi in Osisioma Ngwa L.G.A, clearly shown in plain number NSE/AB/18/2000 dated 12-9-2000 made by Surveyor N.U. Ibekwe
?(ii) all order of perpetual injunction restraining the defendants from dealing on the said property in any manner inconsistent with the

plaintiff?s interest in the said property.?

Parties filed and exchanged pleadings.
The learned trial Judge after hearing the parties gave judgment inter alia thus.
?In view of the fact that the contract had already been called by Chief Emenike before he dies, there is nothing to bind his estate by way of specific performance. There is no doubt that on the authority of Odusoga Vs Ricketts 1997, 7 NWLR (Pt. 311) at 14 D-E that a sole administrator or administratix could validly execute a deed of conveyance in favour of buyer where the original vendor was dead.
The law abnors unjust enrichment. There is evidence that at the last minute the claimant by exhibit N returned the FSB International Bank Plc cheque (Exhibit N1) of 16th December, 2002 for N1,200,000 to the decease Chief M.I. Emenike.
The defendants are hereby ordered to pay over the value of that cheque representing the sum Chief M.I. Emenike received from the claimant to him unless they have already done so. In view of the foregoing, I find no merit in this suit. It ought to and it is hereby dismissed.
I make no order as to costs.?

?Dissatisfied

with this decision the appellant who was the claimant at the lower Court on 23/5/2011 filed Notice of Appeal challenging the decision on 10 grounds.
The grounds of the appeal are as follows (shorn of the particulars).
?1. Error of Law
The learned trial judge erred in law by holding that there was no credible evidence on the part of the claimant to show that the delay in completing the transaction was caused by Chief Emenike.
2. Error of law
The learned trial judge erred in law by holding that indications point to the fact that Chief Emenike wanted and waited before canceling the relationship and returning the cheque of N1.2M to cover what he received so far from the Claimant.
3. Error of law
The learned trial judge erred in law by holding that …if there was any delay on the part of the deceased, the claimant or his counsel would have written to complain over same.
4. Error of law
The learned trial judge erred in law by holding that there was no documentary agreement for the sale of the land between Chief Emenike and PW1. The matter was still being negotiated.
5. Error of law
The learned trial

judge erred in law by holding that it cannot be said that there is an agreement on the nature of interest to be granted.
6. Error of law
The learned trial judge erred in law by holding that payment of the purchase price in full is a precondition for the order of specific performance.
7. Error of Law
The learned trial judge erred in law by holding that there was default on the part of the claimant who failed to make full payment within a reasonable time.
8. Error of Law
The learned trial judge erred in law by holding that the late Chief Emenike was right to have rescinded or repudiated or called off the contract.?
9. Error of Law
The learned trial judge erred in law by holding that in view of the fact that the contract had already been called off by Chief Emenike before he died, there is nothing to bind his estate by way of specific performance.
10. Error of Law
The learned trial judge erred in Law by holding that the Appellant was not in possession of the land and that surveying the land is neither here nor there.

After transmission of record of appeal to this Court parties filed and exchanged briefs

of argument.

The appellant?s brief of argument was settled by his counsel Chinedu Orji.

Learned counsel for the appellant formulated 7 issues for determination as follows:
?1. Whether there was documentary agreement for the sale of the land between Chief M. I. Emenike (deceased) and the Appellant (emanating from ground four).
2. Whether there was an agreement between Chief M.I. Emenike (deceased) and the Appellant on the nature of interest to be granted in respect of the said land (emanating from ground five).
3. Whether the payment of the purchase in full is a precondition for the order of specific performance in a land transaction not governed by customary law (emanating from grounds six).
4. Whether the Appellant was in possession of land in dispute (emanating from ground ten).
5. Whether the Appellant was responsible for the delay in completing the land transaction between Chief M. I. Emenike (deceased) and himself (which emanated from grounds one, two, three and seven).
6. Whether it was lawful for Chief M.I. Emenike (deceased) to rescind or repudiate or call off the contract of sale of land between him

and the Appellant (which emanated from ground eight).
7. Whether the Appellant is entitled to the order of specific performance (which emanated from ground nine).?

The Respondents brief of argument was prepared by Chief Willy U. Oguama, his counsel. Learned counsel for the respondent adopted the issues postulated for determination by the appellant?s counsel.

Resolution of Issues
Issue 1: Whether there was documentary agreement for the sale of the land between Chief M.I Emenike (deceased) and the Appellant.

Learned appellant?s counsel referred to ADEDIRAN V OLAGUNJU (2002) FWLR (Pt. 87) 840, and submitted that a document that would amount to evidence of transaction in a sale of land must contain the names of the parties the property the price or signature of the party to be charged or that of his agent. He submitted that Exhibits A, H, K, L, M, N, O and P were enough documentary evidence of the sale of land transaction. He argued that the learned trial Judge erred in law to have held that there was no documentary agreement for the sale of land between late Chief Emenike and the appellant.

?On his own part, learned

counsel for the Respondent contended that sale of land transaction was not the same as prior agreement between parties to or transfer interest in land. He submitted that there was no documentary agreement between late Chief M.I. Emenike and the appellant.

He referred to the evidence of the appellant, PW1 under cross-examination to the effect that there was no documentary agreement between them for the sale of the land. He submitted that admitted facts required no further proof. He referred to S.75 of the Evidence Act and the case of CAPPA LTD V. AKWITTO (2004) 27 WRN 1. He urged the Court to resolve the issue in favour of the Respondent.

I have deeply considered the submission of learned counsel on this issue.

The case of the appellant at the lower Court was that the deceased father of the Respondent before his demise entered into an agreement for sale of a piece of land with the appellant in pursuance of which he received N1.2 million naira out of N1.4 million but refused to accept the balance of N200,000. The father of the Respondent refused to execute a deed in favour of the appellant. The appellant consequently sued the deceased before his

death. The Respondent is now the surviving administrator of the estate of the deceased. The case of the appellant claiming an order of specific performance and perpetual injunction was dismissed at the lower Court hence this appeal.

Was there a documentary agreement for the sale of the land between Chief M.I. Emenike (late) and the appellant?

Appellants counsel in his brief highlighted the importance of documentary evidence as evidence of transaction in a sale of land. He relied on ADENIRAN V OLAGUNJU (supra). He however further submitted that a written letter, receipt or other form of correspondence was enough to satisfy the description of a note or memorandum. He relied on ADEPATE V BABATUNDE (supra), AKARA V UAC (1951) 12 ANLR 17 and OKORO V OGARA (1964) A.N.L.R. 99. Indeed this is the correct position of the law. However for such a document to satisfy the description of a note or memorandum for the purpose it must contain the following particulars.
(i) Names of the parties
(ii) The ample description of the subject matter of the contract.
(iii) The consideration for the alleged contract.
(vi) The signature of the party to be

charged or that of his agent
or Representative.
See HAMILTON V KOFI MENSAH 3 WACA 224 and ADENIRAN V OLAGUNJU (2001) 17 NWLR (PART 741) 169.

Learned appellant?s counsel?s contention was that Exhibits A, H, K, L M, N, N1 and P were sufficient memoranda of the sale of land transaction. These exhibits admitted at the lower Court.
(1) Exhibit A is the receipt on M.I. Emenike & Company, letter headed paper No OOO801 dated 28/4/2000 in favour of Engr. Andy Njoku.
(2) Exhibit B is the official receipt No 0357 dated 12/9/2000 issued by NIBS Surveys and Engineering Services in favour of Andy A. Njoku.
(3) Exhibit C is the property Survey Plan No NSE/AB/18/2000 in the name of Mr Andrew A Njoku on 12/9/2000 by Survey N. V. Ibekwe.
(4) Attorney between M.I. Emenike and A. A. Njoku.
(5) Exhibit E is purchase receipt No 933 dated 30/6/2000 issued to PW1.
(6) Exhibit F is the building plan made by Kenneth Ikoro & Associates for Mr. Andrew A. Njoku dated October 2000.
(7) Exhibit G is the official receipt No 04 dated 30/10/2000 issued by Kenneth IKORO & ASSOCIATES to Mr. Andy A. Njoku.
(8) Exhibit

H is a letter dated 23/6/2000 addressed to Chief Marcus I Emenike (Akaraka) signed by R. I. Obi Esquire.
(9) Exhibit J is an undated, unsigned Power of Attorney between M. I. Emenike and A. A. Njoku,
(10) Exhibit K is the hand written note attached to Exhibit is dated 14-12-2000.
(11) Exhibit L is a letter dated 13/1/2003 addressed to A.G.E. Nwachukwu Esq. on ?Re Proposed Power of Attorney IFO. Mr. Andy Njoku on Ohio Uzor Ihuala Obi land signed by Chief M.I. Emenike.
(12) Exhibit M is a letter dated 16/12/2002 addressed to Mr. Andy Njoku and signed by R.I. Obi Esq.
(13) The Reply to Exhibit L and its two annexure are Exhibits N, N1, and N2 respectively.
(14) Exhibits O is the letter from A. G. E. Nwachukwu to Chief L. I. Obi dated 20/1/2003.
(15) A copy of the letter dated 20/1/2003 addressed to the Principal Registrar of Deeds Umuahia by A. G. E. Nwachukwu Esq titled ?Cause Caveat to be entered in respect of land subject matter of a deed of irrevocable Power of Attorney dated 27-2-86 and a copy of the writ of summons are Exhibits P and P1 respectively.

?The learned trial Judge after perusing the documentary

exhibits found as follows on pages 86 of record of appeal-
?There was no documentary agreement for the sale of the land between Chief Emenike and PW1 the matter was still being negotiated. They were still fashioning out the terms of the agreement. Before they could conclude and or agree. Chief Emenike and counsel called off the negotiation for reasons advanced in Exhibits L and M. The only memoranda this Court can look at to attempt to fashion out the intention of the parties are Exhibits A, H, K, L and M on the land and Exhibits N, N1, O and (sic) P on the other hand.?

The above finding was the fulcrum on which the entire judgment of the lower Court rested.

I shall test the above finding in the light of the above documentary evidence and the evidence of the witnesses at the lower Court. Why did Chief Emenike terminate the arrangement between him and the appellant? Chief Emenike?s letter and that of his solicitors were clear on this. On 13/1/2003 Chief M.I. Emenike wrote a letter to the appellant?s solicitor as follows:-
MARINE HOUSE, (1st Floor)
33, St. MICHAEL?S ROAD
ABA, ABIA STATE ? NIGERIA

DATE 13th Jan. 2003
A.G.E Nwachukwu Esq.
Solicitor and Advocate,
124 Ehi Road,
ABA
Dear Sir,
RE: PROPOSED POWER OF ATTORNEY I.F.O MR. ANDY NJOKU ON ?OHIA UZOR IHUALA UBI? LAND.
We refer to your meeting of 8th January, 2003 with the under signed in connection with the above named subject matter. We have been reliably notified of your Client?s threats, particularly to our lives in even of our refusing to perfect the proposed arrangement.
In the circumstances, coupled with his failure to perfect his own side of the arrangement over 2 years now, we enclosed herewith our Solicitor?s (Chief R.I. Obi) letter to Andy Njoku with the annexure, FSB International Bank Plc. Cheque No. 002958106 for N1.2M (One Million, Two Hundred Thousand Naira only) representing the amount already deposited by him on a belated transaction, which he refused to claim. We now consider the matter as closed. We may seek redress on his threat to our lives.
Yours faithfully,
For: M.I. Emenike.
SGD
Chief M.I. Emenike,
(Solicitor).?

?The reasons given for taking

the step were:
(i) Threats to his life
(ii) Failure to perfect the arrangement over a period of 2 years.
The letter written by his solicitor R. I. Obi on 16/12/2002 to the appellant put it thus:-
?MR. ANDY NJOKU,
19A CEMETARY ROAD,
TERREVENE GUEST HOUSE,
ABA.
Dear Sir,
We represent Chief M.I. EMENIKE of No. 33 St Michaels Road Aba. We shall hereinafter refer to his as our client. We write to you on his behalf as follows:-
It is our instruction that over two years ago, you entered into negotiation with our client for the purchase of his piece and parcel of land for N1.4M (One Million four hundred thousand Naira) you made a part payment of N1.2M (One million two hundred thousand Naira).
Our client has waited for too long for the completion of this contract and has now decided to withdraw the property from the market.
Please find enclosed our clients cheque F.S.B International bank Cheque 0002958106 for N1.2M (One million two hundred thousand Naira) being the payment you made on this purchase and consider the matter closed.
Yours faithfully,
SGD
?R. I. OBI ESQ?

It is clear from Chief Emenike lawyer?s letter that he sought to terminate the arrangement because Chief Emenike had waited too long (two years) for the completion of the contract after a part-payment of N1.2m out of N1.4 million had been paid. There was no issue between them on identity of the land, purchase price, terms of the contract and parties to the contract as those seem to have been settled. The only issue was that of non-payment of the full purchase price and the alleged threats to the life of Chief Emenike. The letters of Chief Emenike himself and his solicitors seem to have buttressed the above. There is therefore in my respective view sufficient memoranda to confirm the existence of a sale of land agreement between Chief Emenike and the appellant where there are both oral and documentary evidence, documentary evidence should be used as a hanger from which to assess the oral evidence. See FASHANU V ADEKOYA (1974) ANLR 32 at 37-38; EGHAREVBA V OSAGIE (2009) 18 NWLR (PT 1173) 2999. I resolve this issue therefore in favour of the appellant. Resolution of Issue No. 1 also answers Issue No.2. I also resolve issue No.2 in

favour of the appellant.

Issue No. 3: Whether the payment of the purchase in full is a precondition for the order of specific performance in a land transaction not governed by customary law.

Learned appellants counsel on this issue submitted that the payment for the purchase price is full was not a precondition for the order of specific performance in a land not governed by customary law. Relying on BIYO V AKU (1996) 1 NWLR (PT 422) P.1 and EDOSA V ZACCALA (2006) ALL FWLR (PT.306) 899, learned counsel submitted that the learned trial Judge erred to have relied on ODUSOGA V RICKETTS (1997) 7 NWLR (PT. 511) 15 to hold that payment of the purchase price in full was a precondition for a grant of specific performance in a land not governed by Customary Law. He argued further that the cases of MANAYA V IDIRIS (2001) 8 NWLR (PT. 716) 627 and JODI V SALAMI (2009) ALL FWLR (PT. 418) 385 relied upon by the learned trial Judge on this point were on credit sale and valid sale of land under Customary Law. He urged the Court to resolve this issue in appellants favour.

Learned counsel for the Respondent on the other hand submitted that the current legal

position was as held in MANAYA V IDRIS (supra) and JODI V SALAMI (supra). He posited that ODUSOGA V RICKETTS (supra) lent weight to the decisions. He posited that there could only be a valid sale after a purchaser had paid the entire purchase price and possession of the land transferred.

What is the current legal position on payment of purchase price being a condition precedent for order of specific performance?
In 2009 the position of the law on this point was considered by the Supreme Court in OHIAERI V YUSUF & ORS (2009) 6 NWLR (PT 1137) 207, (2009) 2-3 SC. 20?
Tabai JSC had this to say:-
?The established legal principle is that where there is an agreement for sale of land either under Native Law and Custom or any 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 as equitable interest in the property and which interest ranks as high as a legal estate and cannot therefore be overridden by a subsequent legal estates erected by the same vendor or his legal

representative in favour of another person.?
Recently in OGUNDALU V MACJOB (2015) LPELR ? SC 185/2006 the Supreme Court further considered this legal position. RHODE ? VIVOR J.S.C. while delivering the leading judgment had this to say:
?In ODUSOGA V RICKETTS, (1997) SC NJ 135 this Court held that to constitute a valid sale of land under Customary Law three essential ingredients are required and they are:-
(1) Payment of the purchase price
(2) Purchaser is let into possession by the vendor and in the presence of witnesses.
It follows that where the purchase price is not fully paid there can be no valid sale even if the purchaser is in possession (as in this case). Where part payment of the purchase price was made and the purchaser defaults in paying the balance within a reasonable time the vendor would be at liberty to re-sell since legal title remains with the vendor until full price is paid by the purchaser?
The reliance of the Apex Court on ODUSOGA V RICKETTS (supra) OGUNDALU V MACJOB (supra) has made the position of the law clear on when the non-payment of the full purchase price came about as a

result of the balance being tendered but rejected even though within a reasonable time.
OGUNDARE J.S.C. in ODUSOGA V RICKETTS (supra) explained the position of the law further on this thus:
?Where however part payment of the purchase price was made and the balance is tendered within the stipulated time the vendor cannot resile from the contract of sale and the purchaser in possession will be entitled to a decree of specific performance.? See also MAYSON V CLONET (1924) A-C 980 at 985.
What can be deduced from the above authorities are:
(1) Payment of purchase price of land is a vital ingredient of a valid sale of land ODUSOGA V RICKETTS (supra).
(2) Where however there is part payment of the purchase price together with possession:
(a) It must be within the terms of the agreement OHIAERI VS YUSUF
(b) Full payment must be made within reasonable time OGUNDALU V MACJOB (supra)
(c) A tender of the balance within the stipulated time validates the contract of sale of land. The purchaser in that wise will be entitled to a decree of specific performance OGUNDALU V MACJOB (supra)
(d) I need to add that the

principles in ODUSOGA V RICKETTS (supra) apply to both customary and non ? customary sale of land. See MAYSON V CLONET (supra) ODUSOGA V RICKETTS (supra).

I shall apply the above to the facts of this case. Did the appellant pay the full purchase price or part-payment or did he make a tender of the balance? The learned trial Judge analyzed the evidence of the appellant who gave evidence as PW1 at the lower Court thus on page 82-83 of the record.
?The PW1 said he bought the land in dispute on 28-4-2000 by means of Exhibit A he claimed to have paid the full purchase price of N1.4 million in three installments namely- First, on 28-4-2000 when he paid the sum of N200,000= and the receipt Exhibit A was issued to him by the deceased. Second, in May 2000 to the tune of N1 million (unreceipted), and Third, after the deceased had written Exhibit L dated 13th January 2003 returning the sum of N1.2 million by FSB International Bank Plc cheque dated 16th December, 2002.
The PW1 had told the Court that after paying N1 million to the deceased at his request by bank draft he subsequently took the Power of Attorney as prepared by his counsel to the

deceased together with the balances of N200,000 in cash but that the deceased only collected the Power of Attorney but declined to collect the N200,000.
In another version from same PW1 he told the Court that on the day he paid N1 million to the deceased, he also gave the deceased a cheque of N200,000= and that he later countermanded that cheque. Yet under cross examination, PW1 said he paid the purchase price in three installments and that the last installmental payment of N200,000 was paid by his lawyer on his instruction
In further answer, PW1 told the Court that he deposited the last installment of N200,000 with his counsel in May, 2000 and didn?t know the date his lawyer paid the money over to the deceased.
Still in answer to cross-examination question, the same PW1 said he had an agreement with the deceased that the last installment would be paid on the day of the execution of the Power of Attorney.
Finally, the PW1 agreed that it was after the deceased had called off the sale of his land and returned the claimant?s deposit so far made amount to N1.2 million by cheque that he the PW1 now reacted by returning the said N1.2

million Naira cheque and added a further Cheque of N200,000 to take care of the final installment. This happened in January, 2003.
It is clear that from these inconsistent and disjointed accounts as to how and when the final installment of N200,000= was paid that it was paid after Chief Emenike had called off the relationship and returned the claimant?s deposit already paid.
Years, the first deposit was paid before the search at the Land Registry. It was paid on 28-4-2000. It is not clear when the 2nd installment was paid but the PW1 said it was sometime in May, 2000
If this is correct, as it seems why was the final installment not paid till the deceased had called off the agreement? Exhibit L is Chief Emenike?s letter dated 13-1-2003 it gave reasons for terminating the contract of sale of land to include your client?s threat, particularly to our lives and failure to perfect his own side of the arrangement over two years now?

?I am with due respect unable to fault the above assessment and evaluation of the evidence of the PW1 on the vital aspect of this appeal. The appellant to succeed in his case must show that he

either made full payment of the purchase price or part payment in line with the terms of the agreement or that he tendered the balance but it was returned or rejected. The evidence of PW1 on this aspect of his case was very inconsistent and unbelievable. I therefore resolve this issue in favour of the Respondent.

Issue No.4 Whether the appellant was in possession of the land in dispute.

Learned appellants counsel submitted that the appellant was in possession of the land in dispute. He referred to the decision of ADEWOLE V DADA (2003) FWLR (PT. 157) 1056 to the effect that demarcation of land survey beacons or even pegs were enough act of possession. He referred to the evidence adduced as the lower Court and the finding of the learned trial Judge that the land in dispute was surveyed by the appellant. He urged this Court to hold that demarcation of land with survey beacons amounted to possession.

?The Respondents counsel in his own submission on this issue referred to Exhibit H as being clearly demonstrative of part of the grey areas late Chief Emenike needed to sort out with appellant. He contended that if the appellant had been put into

physical or actual possession as against constructive possession of the land in dispute the date of being put into possession those who witnessed the event were material facts which ought to have been specifically pleaded and proved by evidence without possession, he submitted that the appellant was not entitled to an order of specific performance. He relied on MANAYA V IDRU (supra) ODUSOGA V RICKETTS (supra).

I have considered the submission of counsel on both sides. The facts of this case are unique in the sense that only the plaintiff and his witnesses knew about the transaction between the appellant and late Chief Emenike. The Respondent was the surviving administrator of Chief Emenike?s Estate. What one can therefore rely on are the evidence of the witness who seem to be an eye witness and the correspondence between Chief Emenike, his lawyer, and the appellant and his lawyer.
The evidence adduced by the appellant on being in possession of the land is in my view very shaky. His evidence was that late Chief Emenike showed him the boundaries of the land and advised him to go into possession. He said this was in the presence of witnesses. He

called PW2, Franklin Nwafor as his witness. The witness gave evidence that he followed the appellant Chinyere Ogugu, Chidi Agba and Engineer Ejiogu to inspect the land. He did not say that the appellant was advised to ?. go into possession and did not say that this was in the presence of witnesses. He was also silent on the claim of the appellant to have surveyed the land. Possession for it to validate a sale of land must be in the presence of witnesses. The PW1 failed to call the witnesses to support his claim of being in possession of the land. This in my respective view was fatal to his claim.

I resolve this issue also in favour of the respondent.

Issues 5 and 6
Whether the Appellant was responsible for the delay in completing the land transaction between Chief M. I. Emenike (deceased) and himself (which emanated from grounds one, two, three and seven).
Whether it was lawful for Chief M. I. Emenike (deceased) to rescind or repudiate or call off the contract of sale of land between him and the Appellant (which emanated from ground eight).

?Appellants counsel submitted that the appellant was not responsible for the delay in

completing the land transaction between late Chief M.I. Emenike and himself. He referred to the evidence adduced and submitted that the learned trial Judge?s finding to the effect that late Chief Emenike waited and waited was not supported by evidence. He contended that the learned trial Judge speculated and therefore erred in law. He cited OMOREGBE V LAWANI (1980) 3-4 SC 108 WOLUCHEM V GUDI (1981) 5 SC, 178 at 185-188 YUSUF V N.T.C. LTD (1977) 6 S.C. 25 at 32-33. He posited further that the learned trial Judge did not consider the contents of Exhibits N and O but considered Exhibits L and M.

On issue No six learned appellant?s counsel submitted that there was no basis for late Chief M.I. Emenike to resend or call off the contract. He argued that law and equity would not allow him to repudiate the contract. He urged the Court to so hold.

Learned Respondents? counsel on the other hand referred to the evidence at the lower Court and submitted quoting copiously from the evidence of the appellant that the delay in the completion of the transaction was caused by the appellant.

?On issue No. 6 learned Respondent?s counsel

submitted that where a purchaser failed to pay the purchase price fully he would have no right to an order of specific performance. He relied on MANAYA V JORIS (supra); JODI v SALAMI (2009) ALL FWLR (PT. 418) 386 at 413 and ODUSOGA V RICKETTS (supra). He urged the Court to resolve the issues in favour of the Respondent.

On issues 5 & 6, having earlier in this judgment agreed with the evaluation of the evidence of PW1 by the learned trial Judge. I hold that the appellant failed to show at the trial Court that Chief Emenike (late) was responsible for the delay. This case at the lower Court showed very clearly that he failed to pay the balance of the purchase price within reasonable time. He did not prove that he tendered the balance of N200,000 as appellant?s evidence on this was not accepted by the learned trial Judge Chief Emenike (late) was therefore right to have repudiated the alleged contract of sale of land. I resolve Issues No. 5 & 6 therefore in favour of the Respondent.

Issue No. 7 Whether the Appellant is entitled to the order of specific performance.

Chinedu Orji for the appellant submitted on this issue that he

appellant was entitled to the order of specific performance. He referred to HELP (NIG) LTD V SILVER ANCHOR (NIG) LTD (2006) ALL FWLR (PT 311) P. 1843. He argued further that there was a contract of sale even though no deed of sale had been executed. He urged the Court to give an order of specific performance. He urged the Court to so hold.

Chief Willy U. Oguama, learned counsel for the Respondent adopted his arguments on issues 3, 4, 5 and 6 and urged the Court to resolve issue No.7 in the negative.

Having regard to the resolutions of the issues earlier in this judgment and in view of the Supreme Court decision in OHIAERI V YUSUF (supra) ODUSOGA V RICKETTS (supra) OGUNDALU V MACJOB (supra) HOWE V SMITH (1884) 27 C.A.D 89 and a long line of judicial authorities on when an order of specific performance can be made, I hold that the learned trial Judge rightly refused to grant an order of specific performance in favour of the appellant.

I resolve this issue in favour of the Respondent.
This appeal lacks merit. The decision of High Court 2 Osisioma Ngwa delivered on 10/3/2011 in HOS/46/2006 (CORAM: ADIELE J) is hereby affirmed.

?This appeal

is hereby dismissed with N60,000 cost in favour of the Respondent.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I agree with the lead judgment just delivered by my learned brother, Tunde Oyebamiji Awotoye, JCA. The said judgment encapsulates and reflects my firm viewpoints on the seven issues thrown up for resolution in and determination of this appeal. Thus, for the reasons and conclusions contained in the lead judgment of my learned brother, Awotoye, JCA, I too adjudge this appeal as being vaingloriously unmeritorious. It is accordingly dismissed with all the consequential orders made in the lead judgment.

ITA GEORGE MBABA, J.C.A.: I had the privilege of reading the lead judgment by my learned brother, AWOTOYE JCA, I agree with his reasoning and conclusion, that the appeal be dismissed.

?This is because, though there was clear evidence of conclusive contract of sale of land and payment of 1.2 Million Naira, being part of the consideration for the land, Appellant was not forthcoming with clear, consistent evidence to justify the untoward delay to pay the balance of N200,000.00 before the

Respondent resiled from the sale, on account of unreasonable delay to complete the payment.

The law, however, is that, where part payment of the purchase price was made and the balance is tendered within the stipulated time or, in the absence of a stipulated time, within a reasonable time, the vendor cannot resile from the contract of sale and the purchaser, in possession will be entitled to a decree of specific performance. See Odusoga & Anor vs. V. L. L. Ricketts (1997) 7 NWLR (Pt.511); (1997) LPELR ? 2256 (SC); Ohiaeri v. Yusuf (2009) 6 NWLR (Pt.1137) 207; Minilodge vs. NGE (2009) 7 NWLR (Pt.1173) 254; Oshafunmi & Anor vs. Adepoju & Anor (2014) LPELR ? 23073 (CA).

Unfortunately, Appellant, at the trial Court prevaricated or gave confusing and conflicting evidence on his failure to pay the balance of the cost price of the land within reasonable time, as per the findings of the trial Court. That, apparently, formed the basis of the decision of the trial Court to justify the resile of the sale by the Respondent.

?I too dismiss the appeal and abide by the consequential orders in the lead judgment.

Appearances

Chioma Ofoegbu Okolisah (Mrs) with Chinedu Orji and J. J. OkekeFor Appellant

AND

Willy V. Oguama with Nnamdi Ben IgwenyiFor Respondent