ANKAMA & ANOR v. NZEOJI & ANOR
(2022)LCN/16224(CA)
In the Court of Appeal
(KADUNA JUDICIAL DIVISION)
On Friday, July 01, 2022
CA/K/157/2017
Before Our Lordships:
Amina Audi Wambai Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
1. DR. MUAZU ADAMU ANKAMA 2. MRS. ROSECANA M. ANKAMA APPELANT(S)
And
1. ENGR. JULIUS JOHN NZEOJI 2. MALLAM ISMAILA USMAN RESPONDENT(S)
RATIO
WHETHER OR NOT IT IS THE DUTY OF THE COURT OF APPEAL TO EVALUATE AND ASCRIBE PROBATIVE VALUE TO EVIDENCE
In the case of TSKJ (NIG.) LTD VS. OTOCHEM (NIG) LTD (2018) 11 NWLR (PT. 1630) PAGE 330 at 344 PARAS E–F, PAGE 352 PARA G, it was held per I. T. Muhammad, JSC that:
“Permit me, my Lords, to draw attention from the outset in this issue that it is not the business of the Court below (unless in exceptional circumstances) to evaluate and thus, ascribe probative value to evidence. That is the whole mark of the trial Court that heard, saw, observed and ascribed probative value to evidence through witnesses. The only assignment expected of an appeal Court (in the appeal) is to review, among other things, the evidence and the whole proceedings of the trial Court.…assessment of evidence and ascription of probative value to such evidence is the primary duty of a Tribunal of trial and Court of Appeal can only interfere if the trial Tribunal has performed badly in that area.” PER IDRIS, J.C.A.
WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT
In the Supreme Court case of C & C. B. DEV. CO LTD VS. HON. MINISTER OF ENVIRONMENT HOUSING & URBAN DEVELOPMENT & ANOR (2019) LPELR–46548, it was held per Eko, JSC that:
“Generally, the attitude of appellate Courts to the exercise of discretion by lower Court is that, unless the exercise of discretion by the lower Court is manifestly wrong, arbitrary, reckless or injudicious, or where it does occasion miscarriage of justice to the Respondent, the Appellate Court would not interfere merely because, faced with similar circumstances, it would have reacted differently.” PER IDRIS, J.C.A.
THE PRINCIPLE OF FAIRNESS AND JUSTICE
This is a Court of fairness and of justice. It is a trite principle of law that a Court should not decide a case on mere conjecture or speculation. Courts of law are Courts of facts and laws. They decide issues on facts established before them and on laws. They must avoid speculations.
In the case of IKEMEFUNA & ORS VS. ILONDIOR & ORS (2018) LPELR–44840, it was held that:
“The law is settled that a Court of law, including this Court, should not indulge in speculating on anything. Put simply, the Court has a duty not to speculate.”
See also, the cases of IKENTA BEST (NIG.) LTD VS. A. G. RIVERS STATE (2008) 8 NWLR (PT. 1084) 612; ORHUE VS. NEPA (1998) 7 NWLR (PT. 557) PAGE 187 and ANIMASHAUN VS. UCH (1996) 10 NWLR (PT. 476) PAGE 65.
The trial Court was right in refusing to make an order of specific performance against the 1st Respondent because possession had not been given to the Appellants. The Supreme Court in the case of ZACCALA VS. EDOSA (2018) 6 NWLR (PT. 16161) 528 AT 532, held that a purchaser of land who has paid (whether part or full payment) and taken possession of the land, by virtue of a registration instrument which has not been registered, has thereby acquired an equitable interest which is as good as a legal estate. PER IDRIS, J.C.A.
WHETHER OR NOT AN APPELLANT IS PERMITTED TO CREATE A BOGUS DECISION BY THE DISTORTION OF THE DECISION APPEALED AGAINST
It is trite that the Appellant is not permitted to create a bogus decision by the distortion of the decision appealed against, in order to found or plead his ground of appeal. This point was put beyond doubt by the Court of Appeal in MINJIBIR & ANOR VS. MINJIBIR & ORS (2008) LPELR – 4486 (CA) that:
“It is settled that a ground of appeal must not only connect with and relate to the decision appealed against, it must also be relevant. Thus any complaint that does not relate to the ruling or judgment appealed against is irrelevant and therefore incompetent. This is moreso, because an unrelated and irrelevant ground of appeal cannot challenge a non-existent decision. What is more, an Appellant’s right of appeal is confined within the decision appealed against. If the judgment says one thing and the ground and issue state another that would be a perfect scenario of talking at cross purposes.”
It was also held that a ground of appeal raised against a phantom or a non-existent decision is incompetent in the case of HON. OLEMIJA STEPHEN FRIDAY & ORS VS. THE GOVERNOR OF ONDO STATE & ANOR (2012) LPELR–7886 (CA) and an appeal against a phantom or non-existent decision is an abuse of the Court’s process. See the case of R-BENKAY LTD VS. CADBURY NIG. LTD (2012) LPELR–7820 (SC). PER IDRIS, J.C.A.
THE POSITION OF LAW ON WHAT AMOUNTS TO EQUITABLE INTEREST IN LAND
There is a lot of misinterpretation as to what amounts to equitable interest in land. Part payment of the purchase price does not and cannot confer any equitable interest in land. Even if full payment is made, it is when it is coupled with possession that it can be said that the purchaser has acquired equitable interest in the property. In the instant case giving rise to this appeal and cross-appeal, the part payment of the purchase price and the Deed of Assignment marked as Exhibit P11 did not transfer any equitable interest to the Cross Respondents.
It is trite law that where an unregistered deed is admitted as purchase receipt, there must also be sufficient proof of delivery of possession in order to create an equitable interest in the land. See the case of CHUKWUMA VS. ARINZE & ANOR (2020) LCN/14783(CA). In this instant case, the unregistered deed did not even stand as a purchase receipt because the purchase price was not fully paid.
In OHIAERI VS. YUSSUF & ORS (2009) LPELR – 2361 (SC), the Supreme Court held, on the principle above that:
“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 an equitable interest in the property and which interest ranks as high as a legal estate and cannot therefore be overridden by a subsequent legal estate created by the same vendor or his legal representative in favour of another person.”
Further, if there is proof that money was paid for land coupled with an entry into possession, it is sufficient to defeat the title of a subsequent purchaser of the legal estate if the possession is continuously maintained. See the case of T. A. ORASANMI VS. M. O. IDOWU (1959) 4 F.S.C. 40. More close to the contention herein is the decision in SOREMEKUN VS. SHODIPO (1959) L.L.R. 30 to the effect that if land is sold to a party without executing a formal deed of conveyance, his interest was no more than equitable. Legal estate of the other party would be preferred to it if the party with the equitable interest is not in possession. All these cases appear to lay emphasis on possession as the bedrock of equitable interest.
If it was an equitable interest, if it is coupled with possession it cannot be overridden by a legal estate. See generally, the cases of OSHODI VS. BALOGUN & ORS 4 W.A.C.A. 1 AT PAGE 6; SULEIMAN & ORS VS. JOHNSON 13 W.A.C.A. 213; REGISTERED TRUSTEES OF MUSLIM MISSION HOSPITAL COMMITTEE VS. OLUWOLE ADEAGBO (1992) 2 N.W.L.R. (PT. 226) 690 AT 706. PER IDRIS, J.C.A.
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): The Appellants herein, who were the Plaintiffs at the trial Court filed an amended writ of summons dated the 2nd day of December, 2011, instituting an action against the 1st Appellant and seeking for the following reliefs:
(a) A Declaration that the Plaintiffs had entered into a valid and subsisting contract with the Defendant for the sale of part of the Defendant’s property, house No 9 Dendo Road, Main Town GRA Kaduna, a 3 bedroom bungalow carved out together with a garage and all appurtenances, rights of way, easement and privileges related thereto to the Plaintiffs at a purchase price of Forty Million Naira (N40,000,000).
(b) A Declaration that the decision by the Defendant to sell the property to another person after validly selling the same property to the Plaintiffs constitute a breach of contract.
(c) An order of perpetual injunction restraining the Defendant, his heirs, agents, assigns, representatives in title etc from doing anything that will interfere with the Plaintiffs’ peaceful movement of his ownership and possession of the property, No 9 Dendo Road Main Town GRA Kaduna.
(d) An order of perpetual injunction restraining the Defendant, his heirs, agents, assigns, representatives in title etc from doing anything that will interfere with the Plaintiffs’ peaceful enjoyment of his ownership and possession of the property, No 9 Dendo Road Main Town GRA Kaduna.
(e) Award of specific damages against the Defendant in favour of the Plaintiffs in the sum of Four Million (N4,000,000) naira being the legal fees for the Plaintiffs’ counsel which they agreed to pay.
(f) Award of general damages against the Defendant in favour of the Plaintiffs in the sum of Ten Million Naira for the psychological trauma caused the Plaintiffs by the Defendant and other unforeseen expenses pursuant to the breach of the contract by the Defendant.
(g) Cost of the suit.
It is the Appellants’ case at the trial Court that the 1st Respondent expressed his interest in acquiring property No. 9 Dendo Road, Main Town GRA, Kaduna, Kaduna State from the Federal Government of Nigeria. That the Federal Government of Nigeria made a specific offer of transferring its leasehold interest in the property which is a 3 bedroom bungalow with 3 rooms boys quarters and a garage to the 1st Respondent at the price of N7,450,000 (Seven Million, Four Hundred and Fifty Thousand Naira) vide a letter dated the 14th day July, 2010. That the 1st Respondent was expected to pay 10% of the purchase price of the property within two weeks from the date the offer letter was received by him and a further 5% as administrative costs including the issuance of Certificate of Occupancy. The Appellants averred that the 1st Respondent was able to raise 25% of the entire sum and could not raise the 75% to be able to acquire full title to the property in line with leasehold offer.
The Appellants then stated that the 1st Respondent decided to put up part of the property consisting of the three bedroom bungalow and a garage (excluding the three room boys quarters and the chicken pen) for sale and the Appellants signified interest. And that the 1st Respondent offered to sell the property to the Appellants for the sum of N40,000,000 to which the Appellants agreed.
The Appellants gave the 1st Respondent the sum of N6,000,000 (Six Million Naira) as part payment and which was the actual amount the 1st Respondent needed to pay the government. The Appellants stated that they told the 1st Respondent that they had two properties they intended to put for sale so that they can make payments and the 1st Respondent agreed to wait for them.
The Appellants stated further that they also paid the sum of N4,000,000 (Four Million Naira) as part payment to the 1st Respondent, making it a total sum of N10,000,000. The 1st Respondent then told the Appellants to help him source for an apartment around the Kaduna metropolis so that he can move in after he sells off the property he got from the Federal Government. The Appellant got a house at No. 36 Zambia Road, Banawa, Kaduna belonging to one Mr. Manaja Tula Isa for the 1st Respondent at the sum of N10,000,000.
The 1st Respondent paid N4,000,000 (Four Million Naira) as part payment of the house and the Appellants paid the balance of N6,000,000 (Six Million Naira) on the said property situated at No. 36 Zambia Road, Banawa, Kaduna. The Appellants claimed to have paid the sum of N950,000 (Nine Hundred and Fifty Thousand Naira) for the execution of the sale and agency fee to Kaduna State Development and Property Company Limited (KSDPC) making it a total of N16,950,000 (Sixteen Million, Nine Hundred and Fifty Thousand Naira) advanced to the 1st Respondent.
The Appellants further averred that they went to obtain a loan of N18,000,000 (Eighteen Million Naira) from Guaranty Trust Bank Plc and that they used one of their properties as collateral and it was approved subject to some conditions which included the 1st Respondent signing some documents. That on the day the 1st Respondent was to sign the said documents he refused to sign and said that there are new developments with regard to the property (No. 9 Dendo Road, Main Town GRA Kaduna) as one of his directors in the Ministry of Agriculture.
Subsequently, the Appellants claimed to have kept calling the 1st Respondent so that they can pay the remaining balance of the property but he (1st Respondent) refused to accept it, saying he had sold the property to someone else, the 2nd Respondent. The 1st Respondent stated that he was willing to refund all the money paid so far by the Appellants in buying the property at No. 36 Zambia Road, Banawa, Kaduna.
Clearly upset at this development, the Appellants filed both a criminal charge and a civil suit against the 1st Respondent. The 2nd Respondent was later joined by a motion joined a necessary party.
The Appellants insisted on specific performance of the agreement between them for the sale of the property, stating that he intended to use the said property as a hospital but all pleas fell on deaf ears.
The Appellants filed a motion, seeking for an order of interlocutory injunction restraining the 1st Respondent from delivering ownership and possession of the property at No. 9, Dendo Road, Main Town GRA Kaduna pending the hearing and determination of the substantive suit.
The 2nd Respondent filed his statement of defence and counterclaim, stating that he was interested in getting the property in issue. He stated that he conducted his due diligence by searching, seeing all relevant documents to ascertain that the property belonged to the 1st Respondent, did a physical inspection of the property and satisfied himself that there was no encumbrance on the property. The 2nd Respondent said he purchased the property and his interest was registered. The 2nd Respondent had contended that whatsoever agreement existed between the 1st Respondent and the Appellants conferred no title on the Appellants and thus, he was not liable to pay any damages to the Appellants.
The 2nd Respondent filed a counterclaim wherein he claimed against the Appellants the following reliefs:
(1) A declaration that the 2nd Defendant is the rightful person entitled to the ownership of No. 9 Dendo Road, Main Town GRA Kaduna having purchased the legal title to same, from the 1st Defendant.
(2) A declaration that the 1st Defendant has the legal right to assign his interest in No. 9 Dendo Road Main Town GRA Kaduna, to the 2nd Defendant as at the time he did.
(3) An order of perpetual injunction restraining the plaintiffs, their agents and/or privies and whomsoever claiming through them from interfering with the 2nd Defendants title and right to quiet enjoyment of No. 9 Dendo Road Main Town GRA Kaduna.
(4) N1,000,000 (one million naira) general damages against the Plaintiffs.
The 1st Respondent also filed his Statement of Defence, stating that it was the Appellants who approached him, indicating their interest to buy the property in issue. The 1st Respondent said that he had a Union Home Savings and Loan Ltd for the purpose of raising enough money to purchase the property by way of mortgage financing from the said Union Home.
The 1st Respondent alleged that the sum of N6,000,000 (Six Million Naira) was deposited by the Appellants to show commitment and not as part payment of the sum of the N40,000,000 (Forty Million Naira). The 1st Respondent stated further that he merely signed the Deed of Assignment so as to help the Appellants convince their bankers to grant them a loan. The 1st Respondent stated that when the Appellants were unable to raise the balance of N34,000,000, they approached him and told him about a property No. 36 Zambia Road, Banawa, Kaduna. The 1st Respondent admitted that the Appellants would pay the sum of N6,000,000 (Six Million Naira) and that he paid the sum of N4,000,000 (Four Million) for the property. The 1st Respondent stated upon payment, he was not given access to the house and the Appellants came up with various stories, and that he never signed any deed of assignment. The 1st Respondent averred that the Appellants actually paid the sum of N5,000,000 (Five Million Naira) to the Mr. Isah, the owner of the property and not N10,000,000 (Ten Million Naira) as they claimed. He (The 1st Respondent) also stated that the Appellants paid the sum of N250,000 (Two Hundred and Fifty Thousand Naira) for the execution of the deed of assignment and not N950,000 (Nine Hundred and Fifty Thousand) as they claimed.
The 1st Respondent further alleged that the Appellants failed to give him possession of the property and he had no choice but to inform them that he had sold the property to the 2nd Respondent and they should come and collect their deposit of N6,000,000 (Six Million Naira).
The 1st Respondent stated that when he was presented with the documents for the loan from Guaranty Trust Bank, to his shock he discovered that the 2nd Appellant had stated that they had paid him the full amount of N40 Million consideration. He said he (the 1st Respondent) refused to sign until the clause was removed, and that he signed the Deed of Assignment so as to enable the 2nd Respondent obtain the loan from the bank.
The 1st Respondent further stated that he had no choice but to sell the property to the 2nd Respondent when the Appellants failed to pay the balance, and that he was willing to return the N10 Million for the property at No. 36 Zambia Crescent but they refused and went ahead to file a complaint at the police headquarters for the offence of criminal breach of trust in Suit No. KMD/85/2011.
While delivering its judgment, the trial Court held that there is no doubt that there existed an agreement between the Appellants and the 1st Respondent even though it was unwritten. The Court held that it was clear there was an offer to sell the property for N40 Million but there was a dispute as to how the balance of N34 Million was to be paid before the end of February 2011 either in parts or instalments or through bank loan. The Court further held that both parties agreed that as part of the purchase price the Appellants were to purchase and did purchase and perfect for the 1st Respondent house No. 36 Zambia Road at the sum of N10 Million plus perfection/registration charges amounting to N950,000, bringing the total amount paid/expended as part payment of purchase price to N16,950,000 as at April 2011.
It was held that the parties agreed that the Appellants applied for the loan of N18 Million from GTB and both sides agreed to this.
The learned trial Judge further held that the core area of disagreement between the parties was whether the Appellants were unable to pay the balance or whether the 1st Respondent frustrated them due to his resale to the 2nd Respondent.
The learned trial Judge granted reliefs 1, 2, 5 and 6 sought by the Appellants, and refused reliefs 3 and 4 for specific performance and injunction. General damages in the sum of N5,000,000 was awarded against the 1st Respondent. The learned trial Judge also held that the 2nd Respondent has not been able to show that he has acquired a legal title and all he had was an equitable title which would make him entitled to a declaration of title. The Court also held that the Appellants were not trespassers as claimed by the 2nd Respondent. The counterclaim was dismissed.
Dissatisfied with the judgment of the trial Court below, the Appellants filed a Notice of Appeal dated the 29th day of August, 2016, consisting of 5 (five) grounds of appeal.
The Appellants filed their brief of argument which was deemed properly filed and served the 10th day of May, 2022 and settled by Auta Maisamari Esq. In the said brief of argument the following three issues were formulated for determination thus:
(1) Whether from the facts that preponderated at the trial of this matter before the trial Court which the Court below accepted as having been established, the Court below was not in error in refusing to make the order of specific performance for the contract of sale of property No 9 Dendo Road, GRA Kaduna sought for by the Appellants? (Distilled from grounds 1, 2, 3 and 5 of the Notice of Appeal)
(2) Whether the finding and holding on issues of facts by the trial Court can be interfered with by this Honourable Court especially when same has not been shown in the light of the pieces of evidence that preponderated at the trial to be perverse? (Distilled from all the grounds contained in the cross appeal)
(3) Whether in view of the clear facts of this case and the evidence that preponderated at the hearing of this case, the damages of Five Million Naira awarded by the trial Court can be said to have been adequate and awarded judicially and judiciously? (Distilled from ground 4 of the Notice of Appeal)
On issue one and two, it was submitted by Appellant’s counsel that the primary and exclusive duty of evaluating evidence is that of the trial Court. It was further submitted that the trial Court was right when it held that there was a contractual relationship between the Appellants and 1st Respondent in respect of the sale of the property for the sum of N40,000,000 and that the trial Court was right when it held that the contractual relationship was still valid and subsisting at the time the 1st Respondent sold the property to the 2nd Respondent.
However, the Appellants’ counsel has argued that the complaint of the 1st Respondent in Ground 1 of his Cross Appeal was that the purpose of Exhibit P11 was not to prove title but to show a contractual relationship between the parties. It was also submitted that ground 3 of 1st Respondent’s cross-appeal stated that Exhibit P11 satisfies the provisions of Section 4 of the Statute of Frauds Act are not in accordance with the provisions of the law. It was submitted that Exhibit P11 was signed by the 1st Respondent and that it has facts showing that what the parties were signing was a document or an agreement evidencing the alienation of the property to the Appellants.
It was further submitted by Appellants’ counsel that the position of the law is that non-payment of the full consideration of the purchase price does not vitiate the transaction and thus, the argument of the 1st Respondent in his cross-appeal that the Court acted in error when it admitted Exhibit P11 in evidence despite the failure of the Appellants to pay the full consideration was wrong.
The Appellants’ counsel argued that since the 1st Respondent said he only signed Exhibit P11 to enable the Appellants secure the loan, what then did he expect them to use the loan for other than for the payment of the balance for the property? Section 169 of the Evidence Act was relied on. It was also argued that the contract was still valid as at the time the property was sold to the 2nd Respondent.
It was submitted by Appellants’ counsel that the trial Court was wrong to have not made an order for specific performance for the contract of sale of the property since the Appellants had not breached the terms of the contract as at the time the 1st Respondent sold the property to the 2nd Respondent. The Appellants’ counsel also submitted that it is trite law that where two equities are equal, the first in time prevails. It was submitted that the Appellants’ equitable interest prevails and thus, when the 1st Respondent was selling the property to the 2nd Respondent, he did not have the property as the Appellants had equitable interest in it.
It was argued by the Appellants’ counsel that the trial Court did not give the order for specific performance only because the 1st Respondent had not given possession to the Appellants. It was submitted further that the only equitable thing to do which will accord with the principles of equity is to consider that the Appellants had taken equitable interest in the property and were first in time to so take it, and that the equity cannot stand on the same side of the 1st Respondent because he acted in bad faith and thus, an order of specific performance ought to have been made against him.
The Appellants’ counsel submitted further that the 2nd Respondent should not be regarded as an innocent purchaser for value without notice because they believed that if the 2nd Respondent had employed any of the processes of seeking to know whether the property was incumbent or not, he would have known that the property was unavailable.
Finally, the Appellants’ counsel argued that the general damages of the sum of N5,000,000 awarded by the trial Court was inadequate. This Court was urged to make an order for specific performance and also award more damages against the 1st Respondent.
In response, the 1st Respondent filed his brief of argument dated the 7th day of January, 2019 which was settled by Charles Oparagemezu Ojijieme Esq.
It was argued that even though it is the duty of the trial Court to evaluate the evidence adduced before it, the appellate Court has the power to interfere and do justice in the matter.
It was submitted that the issue was that the Appellants failed to pay the purchase price of N40 Million and that in April, it was very clear they could not pay after they had been told by the 1st Respondent he will rescind the contract. It was also said that the Appellants had concluded that since they paid part of the purchase price, it amounted to part performance. The 1st Respondent’s counsel submitted that making a payment of part of the purchase price does not amount to part performance as envisaged by the law. It was argued that this is not a case of part performance.
The 1st Respondent further argued that he signed Exhibit P11 to enable the Appellants secure the loan and there is evidence to show that the Appellants did not secure the loan. It was submitted that the loan from the bank was offered on the 27th day of May, 2011 and the 1st Respondent sold the property in July 2011 when it was clear that the Appellants could not raise the balance. It was submitted further that Section 169 of the Evidence Act 2011 cited by the Appellants is not applicable to this case.
The 1st Respondent’s counsel also argued that the Court did not evaluate the pleadings and witnesses’ depositions on oath/evidence of the 1st Respondent but relied on challenged and unproved statements of the Appellants.
The 1st Respondent’s counsel submitted that the sale agreement was oral and that there was an agreed timeline within which payment ought to be made and completed. That the Appellants have argued that they acquired equitable interest in the land having paid part of the purchase price to which the 1st Respondent disagreed.
In the brief filed by the 1st Respondent, a sole issue for determination was distilled as follows:
Whether the Appellants are entitled to order of specific performance given the clear position of the law and the facts/evidence in this case.
It was submitted that it was clear that the Appellants having not paid the complete purchase price not to talk of having not been put into possession did not acquire equitable interest in the subject property and thus, the findings of the trial Court cannot be sustained.
The 1st Respondent’s counsel argued that the Appellants counsel had said that the Appellants never breached any terms of the agreement and that the question to be asked here is: what were the terms of the agreement since it was an oral agreement and even Exhibit P11 that was set up in 2011 could not suffice as the agreement.
It was argued that the case of GBADAMOSI VS. AKINLOYE (2014) ALL FWLR (PT. 717) PAGE 677 cited by the Appellants did not support their case as the Appellants in the said case cited paid the purchase price of the land in dispute and were put into possession and so they acquired equitable interest in the property.
Finally, it was submitted that an order of specific performance to compel a vendor to convey title can only be made where complete payment of purchase price for land is made coupled with possession.
This Court was urged to dismiss this appeal with substantial cost as it is frivolous particularly when the specific performance sought by the Appellants is to order the vendor to accept unpaid balance of the purchase price when to the knowledge of the Appellants the vendor who is unpaid has sold the subject property to the 2nd Respondent and put him into possession and convey title to him.
The 2nd Respondent filed his brief of argument which was deemed properly filed and served on the 10th day of May, 2022. In the said brief the following 3 (three) issues for determination were distilled thus:
(a) Whether in view of the circumstances of this case title in the disputed property can be validly transferred to the Appellants even when Exhibit P11 is merely typeset and an unregistered document affecting interest in land and in respect of which there is no Governor’s (Presidential Implementation Committee) consent previously obtained.
(b) Whether the Appellants not having completed payment of purchase price of the property in dispute and not being in possession of same can lay claim of specific performance.
(c) Whether from the circumstances of this case, the 2nd Respondent can be said to be a bonafide purchaser for value without Notice of Appellants’ hitherto equitable interest and therefore holder of legal interest over the property in dispute.
On issue one and two, it was argued that title in the property in dispute cannot be validly transferred to the Appellants even when Exhibit P11 is merely typeset and unregistered. It was submitted that the said Exhibit P11 which is the Deed of Assignment can only be valid if executed after the Governor’s consent is first obtained. It was further submitted that there was no evidence on record to show that attempts were made to register it and obtain Governor’s consent. Also, it was argued that even though Exhibit P11 is admissible in proof of the fact that there was a monetary transaction between the Appellants and the 1st Respondent, it does not transfer title in the disputed property to the Appellants. Reference was made to Section 22 of the Land Use Act and Section 15 of the Lands Registration Law of Kaduna State 1991.
This Court was urged to hold that title in the disputed property was not indeed transferred to the Appellants.
The 2nd Respondent’s counsel also submitted that the Appellants had only paid N16,000,000 out of the purchase price of the property and had approach a bank to get a loan of N18,000,000 which they finally could not get. It was then argued that even if they had obtained the loan, they would not have been able to still complete the payment for the property. Thus, that the Appellants only had an equitable interest in the property which could be impeached by a subsequent bonafide purchaser for value without notice. Reference was made to the case of MUHAMMED VS. MUHAMMED (2002) ALL FWLR (PT. 655) PAGE 363 at PAGE 369.
It was submitted further that since the Appellants had no legal title to the property, they could not lay claim of specific performance with regard to the property in question, having not completed payment and not being in possession.
On issue three, the 2nd Respondent argued that he is the bonafide purchaser for value without notice of the Appellants’ equitable interest and therefore the holder of legal interest over the property in dispute. It was further submitted that he conducted legal search at the Presidential Implementation Committee to ensure that there was no encumbrance over the 1st Respondent’s title. Also, the 2nd Respondent’s counsel submitted that his interest is registered and now within the knowledge of the Presidential Implementation Committee in whose decision to now release the title documents of the property to the 2nd Respondent put him in possession. This Court was urged to dismiss the appeal and hold that the 2nd Respondent is a purchaser for value without notice.
The 1st Respondent filed a Notice of Cross Appeal dated the 14th day of December, 2016 as he was also dissatisfied with the judgment of the trial Court. The said notice of cross-appeal raised eight grounds of appeal. Six issues for determination were distilled as follows:
(1) Whether the trial Judge was right in admitting Exhibit P11 a “Deed of assignment” in evidence to show contractual transaction between the parties on the ground that instrument Registration Law will not apply and whether the document satisfied Section 4 of the Statute of Fraud Act.
(2) Whether the learned trial Judge was right in law relating to land transaction as in this case, when she held that payment of part of consideration in this instant case constituted a valid contract.
(3) Whether the trial Judge was right to hold that the cross-appellant could not show the Court one document or even narrate one real instance when he informed the plaintiffs he was to rescind the sale between February to July 2011
(4) Whether the trial Judge was right to hold that in this case, the parties did not agree for a definite time to pay the balance of the purchase price. Secondly, that the Cross Appellant tried to frustrate their being able to pay the balance by not signing the documents that will enable them draw down on the loan acquired to pay the cross Appellant the balance by not signing the documents that will enable them draw down on the loan acquired to pay the Cross Appellant the balance of the purchase price.
Thirdly, the Appellants did not fail to pay the balance, the facts show they were able to get the balance, i.e. the loan but the cross Appellant refused to collect same, now informed the Appellants he had sold to the 2nd Respondent.
(5) Whether the Appellant who did not pay the complete purchase price in the transaction acquired equitable interest in the subject property by the signing of Exhibit P11 by the Cross-Appellant.
(6) Whether the trial Judge was right in granting prayers 5 and 6 of paragraph 40(g) and (h) sought by the Appellants in their proposed amended statement of claim dated 3rd June 2013.
On issue one, the Cross Appellant submitted that the oral agreement to sell the property in issue was entered in January 2011 and that the Appellants did not complete payment till July 2011 when he (the Cross-Appellant) sold it to another person. It was then argued that Exhibit P11 did not satisfy the provisions of Section 4 of the Statute of Fraud Act or Section 4 of Kaduna State Contract Law.
It was further submitted that part performance is not the same as payment of part of the agreed consideration in a land transaction. This Court was urged to hold that the said Section of law cannot favour the Appellants.
On issue two, it was submitted that for a land transaction contract to be binding, the party who wants to buy must pay the purchase price within the agreed time and failure of which can constitute a fundamental breach which goes to the root of the contract and the Court can give an order of specific performance. The case of NIDCCO LIMITED VS. MRS I. A. GBAJABIAMILA (2013) 14 NWLR (PT. 1374) PAGE 350 AT PAGE 182 PARA H was cited in support.
On issue three, the Cross Appellant submitted that the learned trial Judge did not evaluate the pleadings and evidence of the Cross Appellant but relied on the challenged pleadings of the Cross Respondents, and that the Cross Respondents admitted that the Cross Appellant informed them that he would rescind the contract in April 2011 and the last straw that broke the camel’s back was the failure of the Cross Respondents to secure the loan from the bank.
On issue four, it was submitted that there was a definite time agreed upon by the parties within which the Appellants were required to pay the balance of the purchase price, and that though the sale agreement was oral, the time within which the Appellants were required to pay the balance of the purchase price can be discerned from the circumstance and evidence before the Court. That the Court was clearly wrong in its findings as same is not supported by any credible evidence or even simple logic from the facts/evidence adduced in Court by the Cross Respondents as against that of the Cross-Appellant.
On issue five, it was submitted that the reliefs sought by the Cross Respondents at the trial Court bordered on award of general damages and the cost of the suit. It was then submitted that the award of general damages is predicated on breach of contract and it was the Appellants that breached the contract by not paying the complete purchase price. It was then submitted that if a party did not breach the contract, damages should not be awarded against them.
It was further submitted that the lower Court relied on Exhibit P11 said to be a “Deed of Assignment” which did not state that the purchase price had been paid or when it will be paid to hold that there was an agreement to pay damages of 10% of the consideration paid and other expenses in the event the property is found to be encumbered.
It was also submitted that the award of N5 Million damages where the Cross Respondent failed to complete the payment of purchase price is clearly outlandish and bizarre and same should not be allowed to stand as it lacks foundation in law. It was also submitted that it is trite law that special damages must be specifically pleaded and proved, and that the Court was wrong in granting what was not contained in the amended statement of claim which is the final pleadings upon which the suit was decided.
This Court was then urged to allow the cross-appeal and dismiss the main appeal for lacking in merit.
The Cross Respondent filed their Cross Respondents’ brief of argument dated the 5th day of March, 2020 and settled by Auta Maisamari Esq. In the said Cross Respondents’ brief of argument 3 (three) issues were formulated for determination as follows:
(1) Whether the trial Judge acted within the ambit of the law in admitting Exhibit P11 in evidence only to show evidence of transaction for the sale of property No 9 Dendo Road, Main Town GRA, Kaduna? (Distilled from Ground 1 of the Notice of Cross Appeal)
(2) Whether Exhibit P11 satisfies the requirement of the law, to wit, Section 4 of the Statute of fraud or Section 4 of the Kaduna State Contract Law? (Distilled from Ground 3 of the Notice of Cross-Appeal)
(3) Whether by the pleadings of the parties and the evidence that was preponderated at the trial of the suit before the Court below it could be said that the payment of part of the consideration for the property and issue of the time when the full and final payment of the consideration would be made was properly evaluated and decided by the trial Court? (Distilled from 2, 4, 5, 6 and 7 of the Notice of Cross-Appeal)
The Cross Respondent raised a preliminary issue of law, stating that the Cross Appellant distilled two issues purportedly under Issue No 1 from Grounds 1 and 3 of the Cross Appellant’s Notice of Cross-Appeal without tying each of the issues to any particular ground of appeal.
It was argued that in the Cross Appellant’s purported issue 2 he distilled two issues from Grounds 2 and 6 of the Notice of Cross-Appeal without tying each of the issues to any particular ground of appeal. Also, it was argued that in issue four, the Cross Appellant distilled 3 (three) distinct issues from only Ground 5 of the Notice of Cross Appeal. It was submitted further that the Cross Appellant decided to lump two issues in one and purporting to argue two distinct grounds of appeal by such lumped-up issues for determination of the appeal tantamount to not formulating issues for the determination of the appeal. The case of NWOSU VS. EKEIGWE (2015) 12 NWLR (PT. 1472) PAGE 304 was cited in support.
In response to the Cross Appeal, issues one and two raised by the Cross Appellant were argued together by the Cross Respondent. It was submitted that the Cross Appellant stated in his Notice of Cross-Appeal that his appeal against the judgment of the Court below delivered on the 29th day of July, 2016 and not the ruling of the Court below delivered on the 5th day of December, 2012. It was then argued that the argument proffered on issue one of the cross-appeal is incompetent as it was against the ruling that was never appealed against. Reference was made to the case of ADEJUMO VS. AGUMAGU (2015) 12 NWLR (PT. 1472) PAGE 1 AT 29–30 PARAS F–A.
It was however submitted that in case this Court overrules the submission that issue 1 is incompetent, it was submitted that the finding and holding of the trial Court on the admissibility of Exhibit P11 is unassailable and in line with the position of the law.
It was further argued that the Cross Appellant never pleaded the statute of fraud or the Kaduna State Contract Law and did not lead evidence in reliance on the said two laws, and thus, no issue was joined by the parties on the issue of the applicability or otherwise of the statute of fraud or Kaduna State Contract Law, and that all altercations being thrown by the Cross Appellant on the alleged non-compliance of the transaction between parties for the sale of property in question cannot hold water. Reference was made to the case of ADELEKE & ORS VS. IYANDA & ORS (2013) 6 NSCQR 799 at 815 PARA A.
It was also argued that the decision of the trial Court to admit Exhibit P11 cannot be faulted and amounts to satisfaction of the requirement of Section 4 of the Statute of Fraud as well as Section 4 of Kaduna State Contracts Law. It was also submitted that the Statute of Fraud was not a subsisting statute in Nigeria and in Kaduna State at the time of filing of the instant suit.
This Court was then urged to properly consider and construe the provisions of Section 4 of the Kaduna State Contracts Law which came into operation in the year 1987 as it stated that the disposition of land be in writing does not apply or affect any law relating to part performance.
It was submitted that it is the restrictive construction of the provisions of Section 4 of the Kaduna State Contracts Law, Cap 36 Laws of Kaduna State 1991 that made the Cross Appellant to contend that the Cross Respondents did not satisfy the requirement of this law in the entire transaction leading to this cross-appeal.
Also, it was submitted that a careful consideration of the provisions of the law i.e. Section 4 of the Kaduna State Contracts Law reveals that it was not the mandatory word “shall” that was used therein but the permissive word “may”. The case of ADEJUMO VS. AGUMAGU (2015) 12 NWLR (PT. 1472) PAGE 1 AT 29–30 PARAS F–A was cited in support.
On issue three, it was submitted that the lower Court rightly held that a contract of sale of property No. 9 Dendo Road, Kaduna Main Town GRA was duly entered between the parties, no time frame was agreed upon between the parties between the Cross-Appellant and the Cross Respondents for the full and final payment for the property and that the Cross Respondents did not refuse to pay the consideration for the property as they were in the process of making the full and final payment for the property when the Cross Appellant purportedly rescinded the transaction.
It was then argued that it is trite that it is the primary duty or function of a trial Court to evaluate evidence and ascribe probative value to them and the appellate Court has no business interfering in the findings of facts made by the trial Court. Reliance was placed on the case of EJILEMELE VS. OPARA (2003) 5 SCNJ 1 AT 15.
This Court was then urged to enter judgment in favour of the Cross Respondent and to make an order of specific performance as prayed for in their Amended Statement of Claim. The case of GAJI VS. PAYE (2003) 5 SCNJ 20 AT 37 was cited in support.
The Cross Respondents firmly submitted further that what the Cross Appellant did in the circumstances of this case deserved the exemplary damages which the trial Court awarded against him for the immoral and illegal acts he perpetrated against the Cross Respondents. Reliance was placed on the case of ODIBA VS. MUEMUE (1999) 6 SC 157 AT 170.
This Court was urged to dismiss the cross-appeal.
The Cross-Appellant then filed a Reply to the Cross Respondent’s brief of argument dated the 20th day of May, 2022 and settled by Charles Ojijieme Esq.
The Cross Appellants’ counsel argued in response to the Cross Respondent’s brief of argument that they formulated and indicated the issues for determination from the grounds of appeal.
It was argued that in the cross-appeal, the issues formulated for determination were based on one ground of appeal or combination of grounds of appeal, and that the various grounds of appeal are predicated on the decision or pronouncements of the trial Court. It was then argued that an issue for determination can only be said to be incompetent or liable to be struck out if multiple issues are crafted from one ground of appeal. Reference was made to the case of ABIODUN ADEKOYA VS. THE STATE (2017) 1 SCNJ PAGE 62.
In this cross appeal, the issues formulated for determination are predicated on the relevant ground or grounds of appeal and are so indicated. This Court was urged to discountenance the argument set up by the Cross Respondent’s counsel in his preliminary issues of law in paragraphs 3.1–3.10 of his Cross Respondent’s brief of argument.
RESOLUTION OF THE MAIN APPEAL
I have read the numerous briefs of argument filed in this appeal and the briefs filed in the cross-appeal. I shall now proceed to determine them one after the other and in so doing I shall determine the appeal first and I shall adopt the issues for determination raised by the Appellants herein. The issues are again reproduced hereunder as follows:
(1) Where from the facts that preponderated at the trial of this matter before the trial Court which the Court below accepted as having been established, the Court below was not in error in refusing to make the order of specific performance for the contract of sale of property No. 9 Dendo Road, GRA Kaduna sought for by the Appellants?
(2) Whether the finding and holding on issues of facts by the trial Court can be interfered with by this Honourable Court especially when same has not been shown in the light of the pieces of evidence that preponderated at the trial to be perverse?
(3) Whether in view of the clear facts of this case and the evidence that preponderated at the hearing of this case, the damages of Five Million Naira awarded by the trial Court can be said to have been adequate and awarded judicially and judiciously?
ISSUES ONE AND TWO
In the case of TSKJ (NIG.) LTD VS. OTOCHEM (NIG) LTD (2018) 11 NWLR (PT. 1630) PAGE 330 at 344 PARAS E–F, PAGE 352 PARA G, it was held per I. T. Muhammad, JSC that:
“Permit me, my Lords, to draw attention from the outset in this issue that it is not the business of the Court below (unless in exceptional circumstances) to evaluate and thus, ascribe probative value to evidence. That is the whole mark of the trial Court that heard, saw, observed and ascribed probative value to evidence through witnesses. The only assignment expected of an appeal Court (in the appeal) is to review, among other things, the evidence and the whole proceedings of the trial Court.
…assessment of evidence and ascription of probative value to such evidence is the primary duty of a Tribunal of trial and Court of Appeal can only interfere if the trial Tribunal has performed badly in that area.”
In the Supreme Court case of C & C. B. DEV. CO LTD VS. HON. MINISTER OF ENVIRONMENT HOUSING & URBAN DEVELOPMENT & ANOR (2019) LPELR–46548, it was held per Eko, JSC that:
“Generally, the attitude of appellate Courts to the exercise of discretion by lower Court is that, unless the exercise of discretion by the lower Court is manifestly wrong, arbitrary, reckless or injudicious, or where it does occasion miscarriage of justice to the Respondent, the Appellate Court would not interfere merely because, faced with similar circumstances, it would have reacted differently.”
I understand the Appellants’ argument and clear desire to ensure that the findings of the trial Court in respect of the fact that the 1st Respondent and the Appellants entered into a valid contractual relationship sometimes in January 2011 in which the 1st Respondent agreed to sell the property in issue which is a three bedroom bungalow with a garage and all appurtenances located at No. 9 Dendo Road, Main Town GRA Kaduna for the sum of N40,000,000 is protected and not interfered with at all by this Court. It is clear the Appellants are pleased with this portion of the judgment of the Court below and are therefore “warning” this Court not to tamper or interfere with it. However, I am still looking at the entire appeal brought before this Court. If I feel the need to agree otherwise with the trial Court on this issue, I will do so since the law does not entirely forbid me from doing it in exceptional circumstances.
In paragraph 4.10 of the Appellants’ brief of argument, the Appellants have argued that the findings and holdings of the learned trial Judge that the transaction between the 1st Respondent and the Appellants for the sale of the property was still subsisting at the time of the purported transaction between the 1st Respondent and the 2nd Respondent was entered into is cogent and unimpeachable because they were anchored on credible facts that preponderated at the trial of the suit before the lower Court.
I have painstakingly read through the record of appeal and the Appellants’ brief of argument.
The Appellants’ counsel has argued that Exhibit P11 which is the Deed of Assignment satisfies the provision of Section 4 of the Statute of Fraud Act. I will rather look at the status of the Deed of Assignment in the instant case. All these reference to Section 4 of the Statute of Fraud Act is irrelevant as far as this case is concerned. A deed of assignment which was duly signed by parties to the agreement was admitted as Exhibit P11 in this case and going by the wordings of the Deed of Assignment, it clearly shows that there is a sale of property agreement between the Appellants and the 1st Respondent. There is no doubt about that. However, the existence of a sale agreement between parties is not absolute unless and until parties to that agreement fulfil the duties and obligations placed on them by the terms of the agreement and by law. In every sale of property agreement, it goes without saying that there must be a fixed and ascertained purchase price which the assignor has placed on the said property and the assignee has agreed to pay the sum of money. Thus, a duty is placed on the assignee to pay the full purchase price and the assignor upon receiving the full payment must deliver possession of the property to the assignee.
The Deed of Assignment in the instant case clearly showed the existence of a valid contract for the sale of the property. However, it did not transfer legal or equitable interest in the property to the Appellants at all. The purchase price was stated in the Deed of Assignment and there is no contention as to whether it has been fully paid or not. It was not fully paid neither were the Appellants put in possession. Equitable interest can only be passed to the Appellants when they make part payment and they are put in possession of the property. Part payment of the purchase price only, does not in any way transfer equitable interest to the Appellants.
In the Supreme Court case of OHIAERI VS. YUSSUF (2009) 6 NWLR (PT. 1137) PAGE 207 AT 224 it was held per Tabai, JSC thus:
“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 an equitable interest in the property and which interest ranks as high as a legal estate and cannot therefore be created by the same vendor or his legal representative in favour of another person.”
What confers equitable interest is clear in the cases of OHIAERI VS. YUSSUF & ORS (2006) LPELR–2361 and AYINLA VS. SIJUWOLA (1984) 1 SCNLR H 410 AT PAGE 419. So, the major determinant of the type of equitable interest acquired by a purchaser over the land is: “whether he has been put into possession of the property by the vendor”. He must be put into possession by the vendor for the equitable interest he had acquired in the property to rank as high as a legal estate even if he is yet to have his title properly registered in accordance to law.
It is clear from this case that part payment coupled with possession is what will confer equitable interest on the Appellants. The Deed of Assignment did not confer on the Appellants any equitable interest. The Deed of Assignment merely showed the existence of a sale agreement in process, i.e. an inchoate agreement.
The Appellants’ counsel has also argued that the 1st Respondent had admitted that he reluctantly signed Exhibit P11 (the Deed of assignment) only “to assist the Plaintiffs present a document to show they have acquired a property they intended to use as a hospital to their bankers for the purpose of getting a loan.”
The Appellants have then argued that the 1st Respondent’s delay in signing Exhibit P11 almost frustrated the grant of the loan and thus, the 1st Respondent should not be permitted to back out of the entire agreement. The trial Court even went ahead to hold on page 408 of the Record of appeal that the parties did not agree for a definite time to pay the balance of the purchase price and the 1st Respondent tried to frustrate the Appellants from paying the balance by not signing the documents that will enable them obtain the loan and pay the balance.
First and foremost, I have never seen a situation whereby a seller is obligated by law to participate, assist and help the buyer in raising funds or obtaining loans for the payment of the purchase price. The 1st Respondent had no business whatsoever in signing those documents presented by the Appellants for getting the loan. Going through the averments in the pleadings at the trial Court, it is clear the parties formed a close relationship apart from the sale agreement because I can see them and their spouses did some prayers and fasting together and they even visited each other from time to time. However, now that there is a mess and issues have arisen, the Appellants cannot be heard painting the 1st Respondent as Lucifier for delaying in signing the document Exhibit P11 and even trying to enforce the contract because he signed the said document. The provisions of Section 169 of the Evidence Act, 2011 cannot be enforced against the 1st Respondent in the instant case and in this circumstance.
The Appellants’ counsel has submitted that the findings of the trial Court was very right and correct in respect to the fact that the transaction was still in progress as at July 2011 when the 1st Respondent without notice to them sold the property to the 2nd Respondent and the 1st Respondent could not show the Court one document or even narrate one real instance when he informed the Appellants he was to rescind the sale between February 2011 and July 2011.
Even though I have been issued a subtle warning by the Appellants’ counsel in paragraph 4.24 of the Appellants’ brief not to interfere with this finding of the trial Court, well, the law empowers me to disagree with any finding of the trial Court if I perceive same to be bad or perverse.
I find it surprising that the trial Court suddenly demanded for some “document or real evidence” from the 1st Respondent to prove that he wanted to rescind the agreement. The entire sale agreement was oral. Everything that went on between January 2011 till the execution of the Deed of Assignment was basically oral. The Deed of Assignment clearly stated the purchase price and it was clear that it had not been paid to the 1st Respondent.
The 1st Respondent claimed to have said all payments must be made before the end of February 2011. The Appellants argued that it was a lie. Did they show any evidence to prove this? No, they did not. However, by the conduct of the parties and the signing of Exhibit P11 in April 2011, it was clear that there was some form of “extension” of the contract agreement. How long were the Appellants given to make full payment of the purchase price? They did not proffer a single time frame given? Was the grace period to complete payment of the full purchase price supposed to take eternity? I do not think so. I am more inclined, from the totality of evidence adduced before the trial Court, to believe that the 1st Respondent who is the seller of the property is indeed the one that can give a date as to when he wants the full purchase price paid. The Appellants obviously were struggling to raise the purchase price as the 2nd Appellant clearly stated that she “embarked on prayer and fasting with the 1st Defendant’s wife for God to help us to raise money to pay the balance for the house or in the alternative, we get buyers for our houses at Barnawa and H. Banki which we had put in the market so as to pay the balance of the property.”
From the statement quoted above, it was clear the Appellants were waiting for divine intervention before they could make full payment of the purchase price. If a reasonable man’s test is used to determine the party who would have put a time frame for the full payment of the purchase price, clearly, it would be the 1st Respondent. Even if a brother decides to sell a property to his sister, there will be a time frame within which payment should be made. It cannot be left to perpetuity or until divine intervention from God. Even if no time frame is given, it will be out of the goodness of the heart of the seller and not as of right to the buyer.
Now, the crux of this appeal is that the trial Court failed to make the orders for specific performance for the contract of sale of the property to the Appellants by the 1st Respondent. In the Supreme Court case of ACHONU VS. OKUWOBI (2017) LPELR 42102 PAGE 31 PARAS B, it was held Per Rhodes-Vivour JSC that the nature of the doctrine of specific performance states thus;
“Specific performance is an equitable remedy given at the discretion of a Judge when satisfied that legal or common law remedy, e.g. damages would not meet the ends of justice.”
In the case of IBEKWE VS. NWOSU (2012) N.N.S.C.L.R. (PT. 2) 136 AT 146 PARAGRAPHS C–D, the Supreme Court per Fabiyi, JSC again held that:
“Specific performance is the remedy requiring the exact performance of a contract in the specific form in which it was made or according to the precise terms agreed upon. It is the actual accomplishment of a contract by a party bound to fulfil it. The doctrine of specific performance is that where monetary damages would be an inadequate compensation for breach of an agreement, the contractor or vendor will be compelled to perform specifically what he has agreed to do. He can, for example, be ordered to execute a specific conveyance of land.”
The question that must be answered is: do the Appellants qualify to be entitled to the grant of an order of specific performance against the 1st Respondent?
The Appellants have in paragraph 4.29 of their brief of argument stated that they were not in breach of the terms of the transaction before the 1st Respondent took the decision to resell the property to the 2nd Respondent and therefore the equitable relief of purchase for value without notice will not avail the 2nd Respondent.
In response to this, let the Appellants be reminded that the agreement was an oral agreement in which the terms of the parties are not documented or clearly stated. Since there has been a lot of argument as to whether or not a time frame was given for the complete payment of the purchase price, I will ask one pertinent question which is: at the time of the resale of the property in issue to the 2nd Respondent, has the Appellants fulfilled their own obligation in the agreement?
The fundamental obligation of the Appellants in the oral agreement of the sale agreement was to pay the full purchase price to the 1st Respondent. However, it is very clear that they failed to do so. I cannot help but to refer to the latin maxim that says “he who comes to equity must come with clean hands.” The Appellants could not state a specific time when they were given to make the full payment of the purchase price to the 1st Respondent. They had admitted that they were waiting on divine intervention from God to get the funds or the sale of one or both of their properties in order to raise the money which clearly shows uncertainty as to when they would be able to pay the full purchase price. They can never to entitled to the grant of an order for specific performance by any Court of law or by a Judge who knows his onions.
This Court will not exercise its discretion to grant an order for specific performance against the 1st Respondent and in favour of the Appellants. This is because the Appellants were in default of paying the full purchase price of the property. It would have been a totally different case if they had paid in full the sum of N40,000,000 to the 1st Respondent and then the 1st Respondent went ahead and resold the said property to the 2nd Respondent for the sum of N52,000,000. I would have granted the order for specific performance within a twinkling of an eye.
The Appellants and even the trial Court held that the Appellants were willing and indeed became able to pay the balance within a reasonable time, I do not agree because this is highly speculative. This is a Court of fairness and of justice. It is a trite principle of law that a Court should not decide a case on mere conjecture or speculation. Courts of law are Courts of facts and laws. They decide issues on facts established before them and on laws. They must avoid speculations.
In the case of IKEMEFUNA & ORS VS. ILONDIOR & ORS (2018) LPELR–44840, it was held that:
“The law is settled that a Court of law, including this Court, should not indulge in speculating on anything. Put simply, the Court has a duty not to speculate.”
See also, the cases of IKENTA BEST (NIG.) LTD VS. A. G. RIVERS STATE (2008) 8 NWLR (PT. 1084) 612; ORHUE VS. NEPA (1998) 7 NWLR (PT. 557) PAGE 187 and ANIMASHAUN VS. UCH (1996) 10 NWLR (PT. 476) PAGE 65.
The trial Court was right in refusing to make an order of specific performance against the 1st Respondent because possession had not been given to the Appellants. The Supreme Court in the case of ZACCALA VS. EDOSA (2018) 6 NWLR (PT. 16161) 528 AT 532, held that a purchaser of land who has paid (whether part or full payment) and taken possession of the land, by virtue of a registration instrument which has not been registered, has thereby acquired an equitable interest which is as good as a legal estate.
In the instant case, the Appellants had not taken possession of the property even though they had made part payment of the purchase price and they had a registrable instrument which is the Deed of Assignment which was not registered. The Appellants had no equitable interest in the property. However, assuming without conceding, that they had an equitable interest in the property in issue, the general rule is that a legal estate in property is enforceable against the whole world while an equitable interest is enforceable against the whole world but a bonafide purchaser for value without notice. This is the settled principle of law as stated in the case of ANIMASHAUN VS. OLOJO (1990) 6 NWLR (PT. 154) PAGE 111 AT 121. It was also explained in this case that “purchaser without notice” means a purchaser who has no notice of the equitable interest, either actual notice, constructive notice or imputed notice.
In the instant case, the 2nd Respondent is a bonafide purchaser for value without notice. Even though the Appellants have argued vehemently in paragraph 4.44 of their brief of argument that if the 2nd Respondent had employed any of the processes of seeking to know whether the property was encumbered or not, he would have known that the property was unavailable. Please, was the presumed interest of the Appellants registered at all in any place of search? Was their presumed interest registered at the Land Registry? Were they in possession of the property in issue? No, they clearly were not in possession.
I am of the firm belief that the 2nd Respondent is a bonafide purchaser for value without notice and every interest, whether presumed or assumed or equitable interest in the property which is in issue must fail. The resale of the property to the 2nd Respondent by the 1st Respondent is valid by law. It does not matter that the 1st Respondent did not conduct himself as a nice gentleman to have explicitly informed the Appellants of his plans to resell. He might be morally wrong but not legally wrong.
Thus, for his immoral act of not being nice to have duly communicated to the Appellants his plan to rescind the contract, the trial Court was right in granting the sum of N5, 000,000 (Five Million Naira) as general damages against the 1st Respondent. I totally agree with the amount of general damages awarded in favour of the Appellants. This is because it is obvious that the Appellants really desired to own the property in issue as they had planned to use it as a hospital. They had made part payment, gotten a house for the 1st Respondent, approached a bank for loan, prayed and fasted. The 1st Respondent must return the entire amount they paid as part payment and give them the additional sum of N5,000,000 for their efforts and struggle to get the property in issue.
This is my judgment in respect of the main appeal. This appeal is accordingly hereby dismissed.
RESOLUTION OF THE CROSS-APPEAL
In determining the cross-appeal, I shall adopt the issues formulated for determination by the Cross-Appellant. The Cross Respondent has however raised a preliminary objection to the competence of the issues for determination raised from the grounds of the cross-appeal. I shall first determine the preliminary objection raised by the Cross Respondent before proceeding to determine the cross-appeal. I have read through the preliminary objection raised by the Cross Respondent and I am a bit confused about what exactly the Cross Respondent finds wrong in the way the Cross Appellant decided to couch his issues for determination.
I have read through the Cross Appellant’s brief of argument and I can clearly see that issue one is distilled from Grounds 1 and 3 of the Notice of Cross-Appeal, issue two was distilled from Ground 2 of the Notice of Cross-Appeal, issue three was distilled from Ground 4 of the Notice of Cross-Appeal, issue four was distilled from Ground 5 of the Notice of Cross-Appeal, issue five was distilled from Ground 6 of the Notice of Cross-Appeal and Ground 7 of the Notice of the Cross Appeal.
There is clearly no case of multiplicity of issues from more than one ground of appeal. It is a trite principle of law that where no issue is distilled from any ground of appeal, such a ground is deemed abandoned and liable to struck out. See generally, the cases of PEOPLES DEMOCRATIC PARTY (PDP) VS. INDEPENDENT NATIONAL ELECTORAL COMMISSION (2014) LPELR–23808 (SC); MATHEW VS. STATE (2019) LPELR–46930 (SC) and OKORONKWO VS. ORJI (2019) LPELR–46515 (CA).
It has been argued that an issue for determination can only be said to be incompetent or liable to be struck out if multiple issues are crafted from one ground of appeal. See the case of ABIODUN ADEKOYA VS. THE STATE (2017) 1 SCNJ PAGE 62.
It is trite that the Appellant is not permitted to create a bogus decision by the distortion of the decision appealed against, in order to found or plead his ground of appeal. This point was put beyond doubt by the Court of Appeal in MINJIBIR & ANOR VS. MINJIBIR & ORS (2008) LPELR – 4486 (CA) that:
“It is settled that a ground of appeal must not only connect with and relate to the decision appealed against, it must also be relevant. Thus any complaint that does not relate to the ruling or judgment appealed against is irrelevant and therefore incompetent. This is moreso, because an unrelated and irrelevant ground of appeal cannot challenge a non-existent decision. What is more, an Appellant’s right of appeal is confined within the decision appealed against. If the judgment says one thing and the ground and issue state another that would be a perfect scenario of talking at cross purposes.”
It was also held that a ground of appeal raised against a phantom or a non-existent decision is incompetent in the case of HON. OLEMIJA STEPHEN FRIDAY & ORS VS. THE GOVERNOR OF ONDO STATE & ANOR (2012) LPELR–7886 (CA) and an appeal against a phantom or non-existent decision is an abuse of the Court’s process. See the case of R-BENKAY LTD VS. CADBURY NIG. LTD (2012) LPELR–7820 (SC).
The preliminary objection raised by the Cross Respondents is very confusing because I have carefully looked at the issues for determination raised from the ground or grounds of appeal. Everything is in accordance with the law. Also, it is the judgment of the trial Court being appealed against. The preliminary objection is therefore hereby dismissed.
I shall now proceed to determine the cross-appeal and I shall adopt the issues for determination formulated by the Cross Appellant herein. The said issues are reproduced hereunder again as follows:
(1) Whether the trial Judge was right in admitting Exhibit P11 a “Deed of assignment” in evidence to show contractual transaction between the parties on the ground that instrument Registration Law will not apply and whether the document satisfied Section 4 of the Statute of Fraud Act.
(2) Whether the learned trial Judge was right in law relating to land transaction as in this case, when she held that payment of part of consideration in this instant case constituted a valid contract.
(3) Whether the trial Judge was right to hold that the cross-appellant could not show the Court one document or even narrate one real instance when he informed the plaintiffs he was to rescind the sale between February to July 2011.
(4) Whether the trial Judge was right to hold that in this case, the parties did not agree for a definite time to pay the balance of the purchase price.
Secondly, that the Cross Appellant tried to frustrate their being able to pay the balance by not signing the documents that will enable them draw down on the loan acquired to pay the cross Appellant the balance by not signing the documents that will enable them draw down on the loan acquired to pay the Cross Appellant the balance of the purchase price. Thirdly, the Appellants did not fail to pay the balance, the facts show they were able to get the balance, i.e the loan but the cross Appellant refused to collect same, now informed the Appellants he had sold to the 2nd Respondent.
(5) Whether the Appellant who did not pay the complete purchase price in the transaction acquired equitable interest in the subject property by the signing of Exhibit P11 by the Cross-Appellant.
(6) Whether the trial Judge was right in granting prayers 5 and 6 of paragraphs 40(g) and (h) sought by the Appellants in their proposed amended statement of claim dated 3rd June 2013.
ISSUE ONE
Whether the trial Judge was right in admitting Exhibit P11 a “Deed of assignment” in evidence to show contractual transaction between the parties on the ground that instrument Registration Law will not apply and whether the document satisfied Section 4 of the Statute of Fraud Act.
Section 4 of the Statute of Fraud 1677 provides as follows:
“No action shall be brought to charge any person upon any contract of sale of land, tenements or hereditaments or any interest concerning them, unless either the agreement or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or some other person by him lawfully authorized.”
Inasmuch as I do not believe that this Section 4 of the Statute of Fraud Act is relevant to this case, for what it is worth, I will elaborate on it.
From the wordings used, it is clear that the provisions are not mandatory. The word “shall” clearly shows that the provisions are not mandatory. Also, it is clear that the Deed of Assignment Exhibit P11 did not confer any interest on any party. It did not show that each party has fulfilled their obligations under the agreement. The payment of the consideration which is the most fundamental part of every contract of sale agreement was not fulfilled. I do not think Exhibit P11 qualified as a contract of sale agreement which Section 4 of the Statute of Fraud referred to.
Issue one is therefore resolved in favour of the Cross-Appellant.
ISSUE TWO
Whether the learned trial Judge was right in law relating to land transaction as in this case, when she held that payment of part of consideration in this instant case constituted a valid contract.
I have dealt with this in the main appeal. I agree with the learned trial Judge that the part payment constituted a valid contract for sale of land between the Cross-Appellant and the Cross Respondents. However, that is not the issue.
The questions that must be answered are: did the existence of the valid contract confer on the Cross Respondent an equitable interest? Did both parties perform their obligations under the contract? Can this Court grant an order for specific performance against the Cross Appellant for the “breach” done by him by reselling the property to the 2nd Respondent?
These are the questions that must be answered. There was a valid and subsisting contract between the Cross-Appellant and Cross Respondents even though it was oral and unwritten. The part payment clearly showed the existence of a contract between the parties. Every valid contract is not absolute unless and until each party performs their duty and obligations under the contract.
ISSUES THREE AND FOUR
Whether the trial Judge was right to hold that the cross-appellant could not show the Court one document or even narrate one real instance when he informed the plaintiffs he was to rescind the sale between February to July 2011.
Whether the trial Judge was right to hold that in this case, the parties did not agree for a definite time to pay the balance of the purchase price. Secondly, that the Cross Appellant tried to frustrate their being able to pay the balance by not signing the documents that will enable them draw down on the loan acquired to pay the cross Appellant the balance by not signing the documents that will enable them draw down on the loan acquired to pay the Cross Appellant the balance of the purchase price. Thirdly, the Appellants did not fail to pay the balance, the facts show they were able to get the balance, i.e. the loan but the cross Appellant refused to collect same, now informed the Appellants he had sold to the 2nd Respondent.
I have also dealt with this in the main appeal. It is shocking that the trial Court suddenly demanded for some “document or real evidence” from the Cross Appellant to prove that he wanted to rescind the agreement even when the Cross Respondents showed nothing to prove the time limit within which they should pay. The entire sale agreement was oral and everything that went on between January 2011 till the execution of the Deed of Assignment was basically oral. The Deed of Assignment clearly stated the purchase price and it was clear that it had not been paid fully to the Cross Appellant as at the time he resold the property to the 2nd Respondent.
The Cross-Appellant claimed to have said all payments must be made before the end of February 2011. The Cross Respondents argued that it was a lie. Did they show any evidence to prove this? No, they did not. Did the Court demand for an evidence from them to prove same? Not at all.
However, by the conduct of the parties and the signing of Exhibit P11 in April 2011, it is clear that there was some form of “extension” of the contract agreement since it ought to have terminated since February 2011 as claimed by the Cross-Appellant. How long were the Cross Respondents given to make full payment of the purchase price? They did not proffer a single time frame given for the payment. Was the grace period to complete payment of the full purchase price supposed to take an eternity? I do not think so. I am more inclined, from the totality of the evidence adduced before the trial Court, to believe that the Cross Appellant who is the seller of the property is indeed the one that can give a date as to when he wants the full purchase price paid. He is the one that can set a time frame for the payment.
The Cross Respondents obviously were struggling to raise the purchase price as the 2nd Appellant clearly stated that she “embarked on prayer and fasting with the 1st Defendant’s wife for God to help us to raise money to pay the balance for the house or in the alternative, we get buyers for our houses at Barnawa and H. Banki which we had put in the market so as to pay the balance of the property.”
From the statement quoted above, it was clear the Cross Respondents were waiting for divine intervention before they could make full payment of the purchase price. If a reasonable man’s test is used to determine the party who would have put a time frame for the full payment of the purchase price, clearly, it would be the Cross-Appellant. Even if a brother decides to sell a property to his sister, there will be a time frame within which payment should be made. It cannot be left to perpetuity or until divine intervention from God. Even if no time frame is given, it will be out of the goodness of the heart of the seller and not as of right to the buyer.
The learned trial Judge was wrong to have asked for some kind of evidence from the Cross Appellant to prove that the time limit he gave the Cross Respondents was till February 2011. It is impossible for the full payment of the purchase price to be left to an unlimited time.
Also, it was not the business of the Cross-Appellant to participate in any fundraising for the payment of the purchase price. In fact, it is unheard of. If he decided to join by signing some documents for the grant of the loan, that should be viewed as an act of benevolence and not a duty, an obligation for which he can be accused of “frustrating” the grant of the bank loan.
The Cross Respondents never presented any evidence to show their readiness to pay the balance or even show facts that they had the complete balance and offered it to the Cross-Appellant and he refused. The Cross Respondents had attached all cheques to show the payments they made for the part payment of the purchase price. They showed each payment transaction. What do the Cross Respondents mean by saying that the Cross Appellant refused to “collect” the balance? Did they offer to pay in cash or did they offer him a cheque and he refused? Where is a copy of the cheque? Did they pay the money into his account and he transferred it back to them? I will stop here. As far as I am concerned, there is no evidence on record to show that the Cross Appellant refused to collect the balance from the Cross Respondents.
Issues three and four are therefore hereby resolved in favour of the Cross Appellant.
ISSUE FIVE
Whether the Appellant who did not pay the complete purchase price in the transaction acquired equitable interest in the subject property by the signing of Exhibit P11 by the Cross Appellant.
There is a lot of misinterpretation as to what amounts to equitable interest in land. Part payment of the purchase price does not and cannot confer any equitable interest in land. Even if full payment is made, it is when it is coupled with possession that it can be said that the purchaser has acquired equitable interest in the property. In the instant case giving rise to this appeal and cross-appeal, the part payment of the purchase price and the Deed of Assignment marked as Exhibit P11 did not transfer any equitable interest to the Cross Respondents.
It is trite law that where an unregistered deed is admitted as purchase receipt, there must also be sufficient proof of delivery of possession in order to create an equitable interest in the land. See the case of CHUKWUMA VS. ARINZE & ANOR (2020) LCN/14783(CA). In this instant case, the unregistered deed did not even stand as a purchase receipt because the purchase price was not fully paid.
In OHIAERI VS. YUSSUF & ORS (2009) LPELR – 2361 (SC), the Supreme Court held, on the principle above that:
“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 an equitable interest in the property and which interest ranks as high as a legal estate and cannot therefore be overridden by a subsequent legal estate created by the same vendor or his legal representative in favour of another person.”
Further, if there is proof that money was paid for land coupled with an entry into possession, it is sufficient to defeat the title of a subsequent purchaser of the legal estate if the possession is continuously maintained. See the case of T. A. ORASANMI VS. M. O. IDOWU (1959) 4 F.S.C. 40. More close to the contention herein is the decision in SOREMEKUN VS. SHODIPO (1959) L.L.R. 30 to the effect that if land is sold to a party without executing a formal deed of conveyance, his interest was no more than equitable. Legal estate of the other party would be preferred to it if the party with the equitable interest is not in possession. All these cases appear to lay emphasis on possession as the bedrock of equitable interest.
If it was an equitable interest, if it is coupled with possession it cannot be overridden by a legal estate. See generally, the cases of OSHODI VS. BALOGUN & ORS 4 W.A.C.A. 1 AT PAGE 6; SULEIMAN & ORS VS. JOHNSON 13 W.A.C.A. 213; REGISTERED TRUSTEES OF MUSLIM MISSION HOSPITAL COMMITTEE VS. OLUWOLE ADEAGBO (1992) 2 N.W.L.R. (PT. 226) 690 AT 706. The emphasis is on the payment of the agreed full or part of the purchase price coupled with possession by the purchaser. Without over-flogging the issue, Exhibit P11 and the part payment of the purchase price did not confer any equitable interest on the Cross Respondents.
Issue five is hereby resolved in favour of the Cross-Appellant.
ISSUE SIX
Whether the trial Judge was right in granting prayers 5 and 6 of paragraph 40(g) and (h) sought by the Appellants in their proposed amended Statement of claim dated 3rd June 2013.
Compensatory damages and general damages are the same. They are damages recoverable as payment for actual injury, inconvenience or economic loss. They do not include punitive or exemplary damages. In the Supreme Court case of BRITISH AIRWAYS VS. ATOYEBI (2014) 13 NWLR (PT. 1424) 253 AT PAGE 286, it was held per Kekere-Ekun, JSC that:
General damages are compensatory damages. General damages, such as the law presumes to be the natural and probable consequences of the Defendant’s act, need not be specifically pleaded. It arises by reference of law and need not therefore be strictly proved by evidence and may be availed generally.
The Apex Court also held in the case of UBN PLC VS. AJABULE (2011) LPELR 8239, per Fabiyi, JSC, that general damages are compensatory damages and it was stated poignantly that:
Generally damages are said to be damages that the law presumes and they flow from the type of wrong complained about by the victim. They are compensatory damages for harm that so frequently results from the tort for which a party has sued; that the harm is reasonably expected and need that not be alleged or proved. They need not be specifically claimed. They are also termed damages; necessary damages. ODIBA v. AZEGE (1998) 9 NWLR (Pt. 566) 370, WAHABI v. OMONUWA (1976) LPELR–3469 (SC).”
I am of the firm belief that the Cross Respondents are entitled to the general damages of the sum of N5,000,000 (Five Million Naira) awarded by the trial Court in their favour and against the Cross-Appellant. Even though the Cross Respondents breached their own obligation under the contract by failing to pay the full purchase price, they ought to have been duly informed by the Cross Appellant of his intention to rescind the contract and to resell the property to the 2nd Respondent.
Cross-Appellant owed the Cross Respondents the duty to tell them of his plans to resell the property and not just resell it out rightly. The Cross Respondents had clearly inconvenienced themselves and they had gone through a lot to get a house for the Cross-Appellants and even to get a loan from a bank. They had even prayed and fasted to the knowledge of the Cross-Appellant. The least the Cross Appellant could have done was to nicely and properly rescind the contract between him and the Cross Respondents before going ahead to resell to the 2nd Respondent which he failed to do. The award of general damages of N5,000,000 against the Cross Appellant is fair and just in the circumstance.
In the circumstances, the cross-appeal fails and it is therefore hereby dismissed.
AMINA AUDI WAMBAI, J.C.A.: I agree.
ABUBAKAR MAHMUD TALBA, J.C.A.: I had the opportunity of reading in draft, the lead judgment of my learned brother, MOHAMMED BABA IDRIS, JCA. I agree with his findings and conclusions that the cross-appeal fails. It is also dismissed by me.
Appearances:
M. Abu Esq For Appellant(s)
C. O. Ojijieme Esq for the 1st Respondent
I. Abubakar Esq for the 2nd Respondent For Respondent(s)
