CHIEF OKECHUKWU MADUEKWE & ANOR v. MR. NNAMDI OLUGU (2019)

CHIEF OKECHUKWU MADUEKWE & ANOR v. MR. NNAMDI OLUGU

(2019)LCN/13414(CA)

In The Court of Appeal of Nigeria

On Monday, the 3rd day of June, 2019

CA/OW/88/2016

JUSTICES

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria

Between

1. CHIEF OKECHUKWU MADUEKWE
2. CHIEF PAUL IROH Appellant(s)

AND

MR. NNAMDI OLUGU Respondent(s)

RATIO

ESSENTIAL INGREDIENTS TO PROVE ACQUISITION OF LAND UNDER CUSTOMARY LAW

This position of the law in my considered view would appear to have been given due recognition by this Court in the case of YUSUF V. DADA (2017) LPELR ? 42001 (CA) wherein Owoade, JCA; in dwelling on the distinction between sale of land under English law and sale of land under customary law, stated thus: –
?The Respondents as Claimants pleaded and gave evidence of acquisition of land under native law and custom. In such a case, the primary duty placed on them is to prove a valid sale of land under customary law. To do so, three essential ingredients are required, namely; (a) payment of purchase price (b) purchaser is let into possession by the vendor (c) in the presence of witnesses. See OGUNDALU VS. MACJOB (2006) 7 NWLR (PT. 978) 148. PER LOKULO-SODIPE, J.C.A.

DISTINCTION BETWEEN SALE OF LAND UNDER NIGERIAN CUSTOMARY LAWS AND UNDER THE RECEIVED ENGLISH LAW

The reason for (i) above is that there is a distinction in law between sale of land under Nigerian Customary Laws and sale of land under the received English law. The conditions for a valid sale are not the same in both cases. For a purchaser under English law to acquire a legal title over land, there must be evidence of payment of the purchase price, acknowledgment of same and execution of a deed of conveyance. However, a valid sale of land could be conducted under native law and custom without the necessity of a conveyance as under English Law. But where there is a suit in respect of the land, it becomes necessary to call those who witnessed the transaction to give evidence.
See: COMM, L&H, KWARA STATE VS. ATANDA (2007) 2 NWLR (PT. 1018) 360; AMINU VS. OGUNYEBI (2004) 10 NWLR (PT. 882) 457. Indeed, under native law and custom, the requirements for a valid sale of land are the payment of the agreed purchase money by the purchaser and delivery of possession of the land by the vendor to him. It is not necessary to have a written contract or conveyance as under English law. See YUSUF VS. MATTHEW (1999) 13 NWLR (PT. 633) 30; ADESANYA VS. ADERONMU (2000) 6 SC (PART 11) 18; ELEMA VS. AKENZUA (2000) 6 SC (PART III) 26 AT 27; AJAYI VS. JOLAOSHO (2004) 2 NWLR (PT. 856) 89. PER LOKULO-SODIPE, J.C.A.

WHETHER OR NOT EVIDENCE EVIDENCE OF A WITNESS NOT CALLED TO GIVE EVIDENCE IS ADMISSIBLE

Clearly, evidence, oral or documentary of a witness not called to give evidence may or may not be admissible. It is hearsay and inadmissible if it is to prove the truth of an assertion. It is not hearsay and admissible if it is to prove the fact that it was made rather than the truth of an assertion. SUBRAMANIAN VS. PUBLIC PROSECUTOR (1956) 1 W.L.R. 965 AT 969; MOSES OKHUAROBO VS. CHIEF E. AIGBE (2002) NWLR (PT. 771) 29. PER LOKULO-SODIPE, J.C.A.

WHETHER OR NOT DOCUMENTARY EVIDENCE IS UNKNOWN TO CUSTOMARY LAW

In my view it is to help for the easy resolution of any controversy in respect of the issue of lawful acquisition of possession under a system of law that is not known for documentation. This is particularly so against the backdrop of the position of the law as enunciated per Aderemi, JSC; in the case of OLUBODUN V. LAWAL (2008) LPELR ? 2609 (SC), (2008) 17 NWLR (Pt. 1115) 1 S.C. to wit: ?…it is a well established principle of law that documentary evidence is unknown to native law and custom. See (1) Ajadi v. Olarewaju (1969) 1 ALL NLR 382 and (2) Egwu v. Egwu (1995) 5 NWLR (pt.396) 351.” PER LOKULO-SODIPE, J.C.A.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment delivered by the High Court of Abia State holden at Ohafia Judicial Division presided over by Hon. Justice A.C. Chioma (hereafter to be simply referred to as ?the lower Court? and ?learned trial Judge? respectively). The instant action was commenced by the Plaintiff (i.e. Respondent herein) against the Defendants (i.e. Appellants herein) by a writ of summons which issued on 11/8/2007. The case set up by the Respondent in the statement of claim filed in the case, is to the effect that the 1st Appellant (who is his maternal uncle) on 6/1/1998, agreed to sell 9 plots of land to him (Respondent) at the sum of N40,000.00 per plot and that he made a part payment to the 1st Appellant of a sum of N200,000.00 in respect of the contract for the sale of the parcels of land in question. That the 1st Appellant thereafter directed him (Respondent) to take possession of the land and also issued a temporary receipt dated 6/1/98 in evidence of the receipt of the sum of N200,000.00. It is also the case of the Respondent to the

effect that despite the assurance given to him by the 1st Appellant that he could pay the balance of N205,000.00 due for the plots of land as he (Respondent) might find convenient, the said 1st Appellant ended up selling part of the land consisting the nine plots, to the 2nd Appellant. Having averred in paragraph 25 of the statement of claim thus: –
?Apart from the sum of N276,500.00 which the plaintiff paid to the 1st defendant for the purchase of the land in dispute, the plaintiff had expended N175,000.00 on labour and items cultivated on the land, the sum of N243,000.00 on labour and materials for fencing the land, N150,000.00 for the purchase of 2,500 blocks at N60 each, all totaling N844,500.00. The plaintiff spent the said amount between 1998 and 1999 when the exchange rate was N70 to one dollar. Now that the exchange rate is N130 to one dollar and considering inflation, the current value of what the plaintiff has spent on the land is N1,568,357.70;
The Respondent in paragraph 26 of the statement of claim, claimed against the Appellants as follows: –
a. Declaration that any purported sale of the land in dispute known as

and called UGWU IBERIBE or ALI-EFI UMA UKIWE ESTATE being, lying and situate at Asaga Ohafia, or part thereof, by the 1st Defendant to the 2nd Defendant is improper, invalid, wrongful, unlawful, null and void and of no effect.
b. An order of Court setting aside any purported sale of the land in dispute or part thereof, by the 1st Defendant to the 2nd Defendant.
c. An Order of Court directing the 1st Defendant to accept from the Plaintiff, the sum of N128,500.00 being the outstanding balance of the cost of the nine plots of land i.e. the land in dispute.
d. An order of Court directing the 1st defendant to execute the necessary documents transferring the land in dispute to the plaintiff.
e. N5 Million Naira being general damages for trespass.
f. Perpetual injunction restraining the defendants, by themselves, servants, workmen, agents or privies from further entering the land in dispute.
ALTERNATIVELY
The sum of N20 Million against the 1st Defendant being special and general damages for loss and inconveniences suffered by the Plaintiff on account of the 1st Defendant’s breach of the agreement between him and the Plaintiff in

respect of the land in dispute.?

?The 1st and 2nd Appellants respectively filed separate statements of defence. Suffice it to say that though the 1st Appellant conceded that there was a contract for the sale of nine plots of land within his (1st Appellant?s) land known and called Ali Efi-Uma Ukiwe Estate, between him (1st Appellant) and the Respondent, it is however the stance of the 1st Appellant, that the failure of the Respondent to fulfill the conditions to which the contract of sale was made subject, led to the sale of the said land to new buyers. It is also the case of the 1st Appellant that it was after the matter had been arbitrated upon by the Asaga Ohafia Council of Chiefs and Elders who pleaded with him (1st Appellant) to grant the Respondent 6 plots of land within the estate wherein the plots of land are situate, that he (1st Appellant) duly and legitimately passed title of four plots out of the land in dispute, to the 2nd Appellant who is already building thereon. Having also contended that the instant suit is incompetent and cannot be maintained, the 1st Appellant averred that the Respondent is not entitled to any of the

reliefs claimed in paragraph 26 of the statement of claim.

The 2nd Appellant in his statement of defence, disclosed that he was not a party or privy to any purported transaction that involved the Respondent and the 1st Appellant. Having also disclosed that he suffered some damages on the land in dispute, the 2nd Appellant in paragraph 13 of his statement of defence averred thus: –
?Paragraph 13
?Wherefore the 2nd defendant is damnified and claims against the plaintiff as follows:
(a) A declaration by the honourable Court that the 2nd defendant is entitled to the title of statutory right of occupancy over the 4 plots of land as represented in the 2nd defendant?s survey plan situate, lying and known as ALI-EFI land, Asaga Ohafia within the jurisdiction of this Court.
(b) N5,000,000 (five million naira) being special and general damages.
(c) Perpetual injunction restraining the plaintiff, his agents, privies or servants/workmen from further trespass into/upon the aforesaid land.?

In its judgment, the lower Court having reviewed the respective cases of the parties and evidence adduced in support,

captured the issues formulated by parties as follows: –
?The 1st Defendant in his written address raised 2 issues for determination namely:
1. Is the contract over 9 plots of land entered into between the Claimant and the 1st Defendant contract for sale of 9 plots of land or severable contract?
2. Was the 1st Defendant right in determining the contract and reselling part of the land to the 2nd Defendant?
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The 2nd Defendant on his part raised one issue for determination, to wit:
Whether the 2nd Defendant can be described as a purchaser for value and thus being entitled to the land in dispute?
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The Claimant on his part raised 4 issues for determination, namely;
1. Whether it was the Claimant or the 1st Defendant that breached their agreement for the sale of the 9 plots of land.
2. If It was the 1st Defendant that breached the contract, what is the option open to the Claimant.
3. Whether the 2nd Defendant was a purchaser for value without notice.

4. What should the Court do in the circumstance

However, the issues which in the view of the lower Court arose for determination in the case were as follows: –
?1. Having regards to the circumstances of this case, does there exist a binding contract for the sale of the land in dispute between the Claimant and the 1st Defendant?
2. Who as between the Claimant and the 1st Defendant breached the agreement and what option is open to the innocent party?
3. Whether the 2nd Defendant is a bonafide purchase of (sic: for) value without Notice?
4. Whether the Claimant is entitled to specific performance

The lower Court proceeded to determine the case before it on the issues it formulated having regard to pages 217-234 of the record. Having resolved all the issues it formulated in favour of the Respondent, the lower Court entered judgment in the case thus: –
?I hereby make an order for specific performance in favour of the Claimant as follows:
A. Declaration that any purported sale of the land in dispute known as and called ?UGWU IBERIBE OR ALI EFI UMA UKIWE ESTATE? being lying and situate

at Asaga-Ohafia, or part thereof, by the 1st Defendant to the 2nd Defendant is improper, invalid, wrongful, unlawful, null and void and of no effect.
B. An Order of Court setting aside any purported sale of the land in dispute or part thereof by the 1st Defendant to the 2nd Defendant.
C. An Order of Court directing the 1st Defendant to accept from the Claimant, the sum of N128,500.00 (one hundred and twenty-eight thousand, five hundred Naira) being the outstanding balance of the cost of the nine plots of land i.e. the land in dispute.
D. An Order of Court directing the 1st Defendant to execute the necessary documents transferring the land in dispute to the Claimant.
E. The sum of N10,000.00 (ten thousand Naira) being general damages.
F. Perpetual Injunction restraining the Defendants, by themselves, servants, workmen, agents or privies from further entering the land in dispute.
Having granted the main Relief, the ALTERNATIVE Relief is hereby REFUSED.?

Being dissatisfied with the judgment of the lower Court, the Appellants initiated the instant appeal by lodging at the registry of the lower Court on 22/5/2015 a notice

of appeal dated 21/5/2015. The process contains three grounds of appeal. The Appellants subsequently filed an amended notice of appeal on 3/6/2016. The process which was deemed as properly filed and served on 29/6/2017 contains four grounds of appeal. The grounds of appeal and their respective particulars read thus: –
?GROUNDS OF APPEAL
GROUND ONE
The learned trial Judge erred in law when he failed to consider the issue of whether or not the contract of sale of land entered into between the 1st Appellant and the Respondent was duly terminated by the 1st appellant before reaching a decision in the case.
Particulars of error
i. The Respondent contended that the contract of sale of land between him and the 1st Appellant was still persisting.
ii. By a letter dated 3rd November 1999 and shown in the records of appeal, the 1st Appellant duly gave the Respondent notice of his intention to terminate the contract in default of payment upon the expiry of a certain period.
iii. The Respondent failed to make payment within the period stated in the notice whereupon the 1st Appellant terminated the contract and thereafter proceeded

to sell part of the land in issue to the 2nd Appellant.
iv. The parties joined issue on this and it was conversed by the parties extensively.
v. The learned trial Judge failed to consider the effect the letter of 3rd November 1999 had on the contract.
GROUND TWO
The learned trial Judge erred in law when he made an order of specific performance of a contract that was no longer in existent.
Particulars of error
i. The Respondent failed to make full payment for the land in dispute as agreed by the parties.
ii. The Respondent was not put into possession of the land in dispute by the 1st Appellant and there is no basis for presuming such.
iii. No witness was called to establish that possession of the land in dispute was transferred to the Respondent.
iv. The Respondent gained no right to a specific performance.
v. The agreement for sale of land entered into between the 1st Appellant and the Respondent had been dully terminated by the default of the Respondent.
vi. The learned trial Judge had no basis to grant specific performance in favor of the Respondent.
GROUND THREE
The learned trial Judge erred

in law when he held that the Respondent acquired an equitable interest in the land.
Particulars of error
i. To derive an equitable interest in the land in dispute, the Respondent is required to prove that lawful possession of the land in dispute was transferred to him by the 1st Appellant in the presence of witnesses.
ii. The Respondent led no evidence to show that lawful possession of the land in dispute was transferred to him by the 1st Appellant in the presence of witnesses.
iii. No witness was called to state that possession was indeed given to the Respondent.
iv. There is no basis to infer that lawful possession of the property in dispute was granted to the Respondent.
v. The Respondent acquired no equitable interest in the land in dispute.
vi. In a declaratory claim, the Claimant succeeds on the strength of his case not on the weakness of the Defendants’ case.
GROUND FOUR
The learned trial judge erred in law when he dismissed the 2nd Appellant’s counter-claim.
Particulars of error
i. The 2nd Appellant in his counter-claim claimed for the following:
a. A declaration by the honorable Court that

the 2nd defendant is entitled to the tittle of statutory right of occupancy over plots of land as represented in the 2nd defendants (sic) survey plan situate, lying and known as ALI- EFI land, Asaga Ohafia within the jurisdiction of this Court.
b. N5,000,000 (five million naira) being special and general damages.
c. Perpetual injunction restraining the plaintiff, his agents, privies or servants/workmen from further trespass into/upon the aforesaid land.
ii. The trial Judge held that a Power of Attorney does not transfer interest to any person.
iii. The Deed of Power of Attorney shown in the records granted the 2nd Appellant legal right to the grant of certificate of occupancy in the land in dispute. The right was granted for a valuable consideration.
iv. A Power of Attorney can grant legal interest to the grantee. A grantee can claim this interest against a third party. The grantee is only restricted from claiming the power against the interest of the grantor of the power.
v. The 2nd Appellant is therefore entitled to the grant of statutory right of occupancy as granted by the Power of Attorney and other claims in his counter claim.?

The reliefs which the Appellants seek from this Court as contained in the amended notice of appeal are: (A) that the judgment of the Abia State High Court delivered on 6th May 2015 by the Hon. Justice A.C. Chioma be set aside; and (B) an order entering judgment in favour of the Appellants and granting the reliefs in terms of the counter claim already heard be made.?

?The appeal was entertained on 4/3/2019. It needs to be noted however that prior to the hearing of the appeal, C.T. Okeke, learned leading counsel for the Respondent, argued the motion dated 13/2/2019 and filed on 14/2/2019 ostensibly challenging the competence of ground 4 in the notice of appeal; and Ugochukwu Njoku of counsel for the Appellants duly responded to the same. The motion having been entertained and ruling therein reserved for delivery in this judgment, Ugochukwu Njoku of counsel in urging the Court to allow the appeal, thereafter adopted and relied on the Appellants? brief of argument dated 1/6/2016 and filed on 3/6/2016 but deemed to have been properly filed on 29/6/2017 and Appellants? reply brief of argument to the brief of argument of

the Respondent. The said reply brief is dated 26/2/2018 and filed on 28/2/2018 but deemed as properly filed on 25/6/2018.

In the same vein, learned leading counsel, adopted and relied on the brief of argument of the Respondent dated 6/1/2018 and filed on 12/1/2018 but deemed as properly filed on 23/1/2018, in urging the Court to dismiss the appeal.

The Appellants formulated three issues for the determination of the appeal in their brief of argument. The issues read thus: –
?ISSUE NO. 1
Whether the learned trial Judge was not wrong in law, when he failed to consider and determine that the oral agreement for sale of land entered into between the 1st Appellant and the Respondent was duly terminated by the 1st Appellant? (Grounds 1).
ISSUE NO. 2
Whether the learned trial Judge was not wrong in law, when he made an order of specific performance of the sale of the land in dispute? (Ground 2 and 3).
ISSUE NO. 3
Whether the learned trial judge was not wrong in law when he dismissed the 2nd Appellant’s counter-claim (Ground 4).?

?Like the Appellants, the Respondent equally formulated three issues for the

determination of the appeal, in his brief of argument. The issues read thus: –
?1. Whether the learned trial Judge failed to consider and determine the effect of the 1st Appellant’s letter dated 3rd November 1999 based on which the 1st Appellant purportedly terminated his contract or agreement for sale of land to the Respondent.
2. Whether the learned trial Judges (sic) was wrong in law, when he made an Order of specific performance of the sale of the land in dispute.
3. Whether the learned trial Judge was wrong in law when he dismissed the 2nd Appellant’s counter claim.?

?The motion on notice dated 13/2/2019 and filed on 14/2/2019 must necessarily be first resolved one way or the other before the consideration and resolution of the issues for the determination of the appeal as formulated by the parties. This is so as the Respondent by the motion he has brought is challenging both the competence of Appellants? issue 3 distilled from ground 4 in the notice of appeal, on the basis or ground of the incompetence of the ?counter claim? to which the said ground 4 in the notice of appeal relates. In my considered

view, this much is clear from the order being sought in the motion on notice dated 13/2/2019 and filed on 14/2/2019 brought by the Respondent pursuant to Order 6 Rule 1, Order 7 Rules (3) & (6), Order 10 Rule 1 of the Court of Appeal Rules 2016 and under the inherent jurisdiction of this Court. The order reads thus: –
?AN ORDER of the honourable Court striking out ground 4 of the Appellants/Respondents grounds of appeal and issue 3 based thereon, on the ground that same is incompetent and the Court lacked the jurisdiction to entertain same for the reason that it relates to 2nd Respondent’s counter claim which was not paid for as required by law.?

The grounds of, or for, the motion on notice as set out therein are: –
?1. The 2nd Appellant/Respondents (sic) did not pay for his counter claim as provided for in the first schedule to the Abia State High Court (Civil Procedure) Rules 2001. See page 18 of the records of appeal.
2. It is the payment for the counter claim that gives the Court the jurisdiction to entertain same.
3. The lower Court had dismissed the counter claim which ab initio was incompetent.

4. Ground 4 of the Appellants/Respondents grounds of appeal relates to the 2nd Appellant/Respondent’s counter claim which was incompetent as same was not paid for.
5. Issue of jurisdiction can be raised at any stage of the proceedings.?

After learned leading counsel for the Respondent had moved the motion by relying on its supporting affidavit, learned counsel for the Appellants urged the Court to dismiss the Respondent?s motion for incompetence. This is because the said motion was filed after parties have settled and completed their briefs of argument. He also submitted that the motion constitutes a challenge to the competence of the lower Court to have entertained the counter-claim before it, and that this cannot be done without filing a respondent?s notice or notice of appeal.

Replying to the submissions of learned counsel for the Appellants, learned leading counsel for the Respondent, cited the cases of MPPP v. INEC (2015) 18 NWLR (Pt. 1491) 251, Galadima v. Tambai (2000) 11 NWLR (Pt. 677) 1, and Nuhu v. Ogele (2003) 18 NWLR (Pt. 852) 251 at 279, as permitting the procedure he has adopted in the instant appeal.

Having researched into many decided cases on the issue of ?non-payment and/or inadequate or under payment of fees in respect of Court processes that require payment of fees?, I am of the considered view that the pertinent question(s) to ask and answer in order to come to a decision on the motion brought by the Respondent, is not whether decided cases permit the procedure the Respondent has adopted in praying for the striking out of ground 4 in the amended notice of appeal and issue 3 distilled therefrom; but whether the ?non-payment of fees in respect of the counterclaim of the 2nd Appellant?, in the first place is a jurisdictional issue; and in any event whether it is a jurisdictional issue that can be raised or taken up before this Court for the first time, like the Respondent has done.
The clear answer to the posers, in the light of the cases that I will cite shortly, is that the ?non-payment or under payment of fees in respect of processes of Court? for which the rules of the lower Court have stipulated that fees be paid, is presently or currently not considered to be a jurisdictional issue; even

if it had been so, previously. See in this regard, the case of AKPAJI V. UDEMBA (2009) LPELR ? 371 (SC), (2009) 6 NWLR (Pt. 1138) 545 S.C. wherein the Supreme Court per Ogbuagu, JSC; stated thus: ?I have no doubt that these motions, were panicky actions. xxxxxxxxxxxxxxxx. In my respectful view, they were most unnecessary. I say so because, it is now firmly settled that even the failure to pay, does not raise issue of jurisdiction and that the failure to fulfill the provisions of the High Court Rules in that regard, is a mere irregularity which when not taken timeously or when acquiesced in, becomes incapable of affecting the proceedings in any way. See xxxxxxxxxxxxxxxxxxxxxxx
The usual remedy, it is also settled, is an order by the lower Court, that the appropriate fees or any short fall, be paid. It has nothing to do with jurisdiction of the lower Court to entertain the counter-claim. Indeed, Oguntade, JCA (as he then was) in A.C.B. v. Henshaw (supra) at page 651, stated inter alia, as follows:
“even if the defendant/respondent had not paid the requisite Court fees, this was a matter to be settled before the lower Court. The

usual remedy being an order by the lower Court that the appropriate fees or any short-fall be paid. It certainly has nothing to do with jurisdiction of the lower Court to entertain the counter-claim”
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I am aware and this is also settled that a document or process of Court, is deemed duly filed, when a paper or the document or process is brought to the Registry, and is assessed and paid for, that such a document, etc, can be said to be filed in law, except where there is a dispensation under the Rules of Court that the document etc, can be filed without payment. Of course, this will be a question of fact if fees are paid in respect of a document brought to the Court. See xxxxxxxxxxxxxxxxxxxxxxxxxx
It was also held that a document is deemed to have been properly filed in Court, when same is deposited in a Court’s office with the proper Court officer assigned with the responsibility. See xxxxxxxxxxxx.
In the case of Onwugbufor & 2 ors. V. Okoye & 3 ors. ?

(1996) 1 NWLR (Pt. 424) 252 @ 291 – 292; (1996) 1 SCNJ 1 @ 36 cited by the parties in their respective Brief, (it is also reported in (1996) 34 LRCN 1), although it was held that payment of filing fees is a condition precedent necessary to the exercise of jurisdiction, this Court – per Iguh, JSC, stated inter alia:
“If the default in payment is that of the plaintiff the claim in respect of which such prescribed fees have not been paid cannot be said to be properly before the Court and should be struck out in the absence of an appropriate remedial action or application to regularize such anormaly (sic) …”
So, it can be seen that there is a rider so to speak.
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Surely and certainly, the error or inadvertence of the said Registrar, cannot, in my respectful and firm view, be said to be that of the Respondent. The Registrar saw and assessed the Statement of Defence. If he must read the entirety of the Statement of Defence before assessing it (and I doubt it) and he failed correctly or properly to do so, his error or omission, cannot be

ascribed to be that of the Respondent and/or his learned counsel. With profound humility, it will be unfair and unjust in the instant appeal, to state by anybody including this Court, that ignorance of the law is no excuse. xxxxxxxxxxxxxxxxxxxxxxxxxx
Before I am done with the said issues, I note that the issue of non payment of the filing fees was never raised in the trial Court. This fact is conceded by the Appellant. However, since it touches on jurisdiction and therefore, can be raised at any stage, I say no more about the raising of the said issue for the first time in the Court below not-withstanding of the decision of this Court in the case of Alhaji Ndayako (Etsu Nupe (Chairman Niger State Council of Chiefs) Jikantoro & 6 ors. v. Alhaji Dantoro & 6 ors. (2004) 13 NWLR (Pt. 889) 189; (2004) 5 SCNJ.152 @ 196; (2004) 5 S.C. (Pt. II) 1 @ 20 to the effect also that rules on payment of requisite Court fees, are rules of natural justice and that objection thereof, ought appropriately to have been taken, at the stage of trial and not at the appellate level.xxxxxx?<br< p=””

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See also the case of OGWE V. IGP (2015) LPELR ? 24322 (SC) wherein the Supreme Court applied the position enunciated in the case of AKPAJI V. UDEMBA (supra) without modifying or varying any aspect of it.
In his brief of argument, it is to be noted that the position of the Respondent is to the effect that he filed a reply to the counter claim of the 2nd Appellant. The disclosure was made by the Respondent in response to Appellants? issue 3 distilled from ground 4 in the notice of appeal. It is therefore interesting that the Respondent who by the motion under consideration is challenging the competence of the said issue 3 on the basis of the non-payment of fees for the counter claim of the 2nd Appellant, and who claimed to have filed a reply to the said counter claim, never challenged the competence of the 2nd Appellant?s counter claim (which was subsumed in the statement of defence of the 2nd Appellant) on the ground of non-payment of fees therefore, before the lower Court at any time the lower Court was seised of the instant case. By not doing this,

the Respondent has clearly denied the 2nd Appellant of taking any remedial step(s) to have done the needful if he (2nd Appellant) was by the rules of the lower Court required to pay for the ?counter claim?. In the circumstances, I hold that the Respondent, therefore cannot now do that which he ought to have done before the lower Court and did not do, before this Court under the misconceived stance that the payment of fees for claims sought by a party is a jurisdictional issue. See the case of AKPAJI V. UDEMBA (supra).
Flowing from all that has been said, is that the motion dated 13/2/2019 and filed 14/2/2019 brought by the Respondent, is hereby dismissed.

The issues formulated by the parties as re-produced hereinbefore, though not word for word the same, are in my considered view the same in tenor. Accordingly, the appeal will be resolved upon the issues formulated for its determination by the Appellants.

?APPELLANTS? ISSUE 1 ? WHETHER THE LEARNED TRIAL JUDGE WAS NOT WRONG IN LAW, WHEN HE FAILED TO CONSIDER AND DETERMINE THAT THE ORAL AGREEMENT FOR SALE OF LAND ENTERED INTO BETWEEN THE 1ST APPELLANT AND THE RESPONDENT WAS DULY TERMINATED BY THE 1ST APPELLANT?

Dwelling on this issue, the Appellants in the main argued that the lower Court did not appreciate the position of the law to the effect that an agreement of sale may be terminated upon failure of a party to perform a contractual duty or for delay in performing such duty. That where an agreement to sell does not specify the time for performance, the contract will be presumed to be performed within a reasonable time. It is the stance of the Appellants that the Respondent did not complete the payment for the land in dispute within a reasonable time. This is against the backdrop that the agreement for sale of land between the 1st Appellant and the Respondent was made on 6/1/1998 and it was not until December, 1999 (i.e. 24 months) after that the Respondent came to complete the said agreement. That it was after the 1st Appellant had exercised the option to cancel the said agreement that the Respondent came to complete the said agreement. That the 24 months it took the Respondent to do the needful, is therefore not a reasonable time in the circumstance. This is more so as the purchase price was meant for

the 1st Appellant?s children’s school fees and which fact was acknowledged by the Respondent in his letter of 17/11/1999 ? Exhibit D. Stating that the Respondent for more than one year after the agreement between the Respondent and him (1st Appellant) refused to complete the payment of the agreed sum and did not perform his duty under the contract for sale, the Appellants submitted that the 1st Appellant by Exhibit ?C?, duly gave the Respondent notice to perform his duty under the contract before December 1999. That he did this ex abundanti cautela. That the Respondent by Exhibit ?D?, acknowledged Exhibit ?C? (i.e. letter dated 1/11/1999) without challenging the notice contained therein. That the Respondent by this affirmation, is therefore bound by the terms in the letter of 1/11/1999. That the Respondent in the acknowledgement merely laid claim to 6 plots of the land in dispute. That the Respondent by his failure to disagree with the notice to complete payment before December 1999, therefore agreed to make full payment for the contract for sale of land before December 1999. That this is therefore an added term

to the agreement. That it was thereafter the 1st Appellant exercised his right to cancel the contract for sale of land and offered the Respondent the money he had already paid. Therefore, that there was no binding contract between the Respondent and the 1st Appellant as at December 1999, and there was no contract for the Court to enforce. This Court was urged to resolved this issue in favour of the Appellants.

?Dwelling on his issue 1, it is the stance of the Respondent that the issue formulated by the Appellants does not flow from ground 1 in the notice of appeal as purported by the Appellants. It is the stance of the Respondent that the complaint of the Appellants in the said ground 1, is that “the learned trial Judge erred in law when he failed to consider the issue as to whether or not the contract for sale of land entered into between the 1st Appellant and him (Respondent) was duly terminated by the 1st Appellant and that in paragraph V of the particulars of error, the Appellants stated that “the learned trial Judge failed to consider the effect the letter of 3rd November 1999 had on the contract”. The Respondent expressed the view

that the complaint of the Appellants, is to the effect that the lower Court failed to consider the effect of the letter dated 3rd November 1999 i.e. Exhibit ?C?, and not “whether the learned trial Judge was not wrong in law, when he failed to consider and determine that the oral agreement for sale of land entered into between the 1st Appellant and the Respondent was duly terminated by the 1st Appellant” now formulated and canvassed by the Appellants. The Court was therefore urged to strike out the Appellants? issue 1 and the argument thereon, for being incompetent.

Though not conceding that Appellants? issue 1 is competent, the Respondent submitted that the Appellants have deliberately failed to disclose to this Court the material content of the 1st Appellant’s letter dated 3/11/1999 ? i.e. Exhibit ?C?, pursuant to which the 1st Appellant purportedly terminated the contract for the sale of 9 plots of land to him (Respondent). That the issue formulated and canvassed by the Appellants is based on suppressed facts.

?Having dwelled upon the Exhibit ?C? vis–vis the background of the case,

the Respondent stated that the Appellants refused to disclose to the Court that in the said Exhibit C, the 1st Appellant did not demand for the payment of the outstanding balance of N128,500.00 only, but also demanded for the payment of additional sum of N130,000.00 which was not part of the terms of his agreement, and which he (1st Appellant) claimed was interest on borrowings. That this is the crux of the matter. It is the stance of the Respondent that it was when the 1st Appellant started nursing the idea of reselling the land to the 2nd Appellant at a higher price, i.e. N65,000.00 per plot as against N45,000.00 agreed upon with him (Respondent), that the 1st Appellant wrote Exhibit ?C? and asked him (Respondent) to pay in bulk the outstanding balance of N128,500.00 plus additional sum of N130,000.00 (which was not part of the terms of their contract for the sale of land) and which the 1st Appellant claimed was interest on loan. The Respondent submitted that by asking for the payment of an additional sum of N130,000.00, the 1st Appellant altered the agreement between the two of them and that it is trite law that one party to a contract cannot

unilaterally alter the contract. It is the stance of the Respondent that it was obvious that the 1st Appellant admitted the fact that the Respondent came to his house in December 1999 to pay the outstanding balance of N128,500.00 but he (1st Appellant) refused to accept it, requesting for the payment of an additional sum of N130,000.00 from him (Respondent). The Respondent also submitted that even though the 1st Appellant breached the contract for the sale of land by asking him to pay an additional sum of N130,000.00 in his letter of 3/11/1999, the tendering of the balance by him (Respondent) in December 1999, whether reckoned from the date the last payment was made, i.e. June 1999 or the date Exhibit ?C? was made, is within a reasonable time. That this is so, because until the issuance of Exhibit ?C? by the 1st Appellant, there had not been any written demand for payment. That more importantly, the 1st Appellant did not reject the balance of the money for the plots of land in question, on the ground that the money was not being paid within a reasonable time or that he had cancelled the contract when he (Respondent) tendered the same.

That the 1st Appellant asked for the payment of an additional sum of N130,000.00 which was not part of the terms of the agreement. That as the 1st Appellant never denied this fact, this Court was urged to hold that in the circumstances of this case, he (Respondent) tendered the outstanding sum within a reasonable time. It is the stance of the Respondent that the lower Court duly considered and determined the effect of the 1st Appellant’s letter dated 3/11/1999 ? Exhibit ?C? pursuant to which the said 1st Appellant purportedly terminated the contract. This Court was urged to uphold the findings of the lower Court that the Appellants are now attacking, by their issue 1.

The Appellants responded to Respondent?s issue 1 in their reply brief of argument. They advanced arguments regarding why the Respondent is wrong in his stance that their (Appellants?) issue 1 does not flow from ground 1 in the notice of appeal from which it is said to have been distilled. Thereafter they engaged in a rehash of the argument already canvassed on the issue in their brief of argument.

?I must first state that the submissions by the

Respondent that Appellants? issue 1 does not flow from ground 1 in the notice of appeal, is clearly tenuous and most unconvincing. In my considered view, the stance of the Respondent in this regard, is a poor understanding of the portion of the judgment of the lower Court in respect of the second of the four issues formulated by the said Court for the determination of the instant case. The said issue reads thus: –
?Who as between the claimant and the 1st Defendant breached the agreement and what option is open to the innocent party

Exhibit ?C? upon which Appellants? issue 1 is predicated featured prominently in the consideration by the lower Court of issue 2 formulated by it. The invitation by the Respondent that Appellants? issue 1 should be struck out, is accordingly refused.

In my considered view, there can be no better way of resolving Appellants? issue 1 than by re-producing what the lower Court said in respect of issue 2 it formulated for the determination of the instant case and to see whether or not the stance of the Appellants in their issue 1 has any basis. What the lower Court

said reads thus: –
On issue 2, it is the contention of the Claimant that the agreement between the parties herein was breached by the 1st Defendant, while the 1st Defendant on the other hand contended that the agreement was breached by the Claimant.
The Claimant hinged his claim that the agreement was breached by the 1st Defendant on the fact according to the Claimant that the parties did not agree on a date for the payment of the outstanding balance, rather that after making the part payment, the 1st Defendant allowed the Claimant to pay the balance as is convenient to him and that the 1st Defendant allowed him to take possession of the land and that the Claimant actually took possession. The Claimant buttressed his claim that there is no time limit for the payment of the outstanding balance by referring to Exhibit ?B? and the fact that the Claimant made further payment between November, 1998 and June, 1999. The Claimant concluded by asserting that the tendering of the outstanding balance in December, 1999 was done within reasonable time.
?The 1st Defendant on the other hand anchored his claim that it was the Claimant that

breached the agreement on the ground according to him that the parties agreed that the total consideration must be fully paid on or before April, 1998. In effect, the 1st Defendant?s is saying that parties agreed on a date for the payment of the balance. It is the 1st Defendant?s contention that the further payment made by the Claimant between November, 1998 and June, 1999 were made pursuant to the period of grace granted to the Claimant by the 1st Defendant. However, that when the Claimant failed to pay the balance despite several demands, the 1st Defendant terminated the contract.
Having regards to the position of both parties, did the parties agree on a date for the payment of the balance? To resolve this question, I will have recourse to Exhibit ?B? which both parties acknowledge as the receipt for the initial part payment. The last paragraph of Exhibit ?B? clearly states that:
?Purchase Agreement and Transfer of Ownership would be effected soonest possible as this receipt forms part of the final agreement.?
Thus, by the term of Exhibit ?B?, payment is to be effected ?SOONEST

POSSIBLE?
What do the parties mean by payment soonest possible time? Does it mean payment at the Claimant?s convenience as contended by the Claimant or did it import payment on any particular date to wit; April, 1989 as contended by the 1st Defendant. In construing a clause such as is contained in Exhibit ?B?, it is of paramount importance that the clause ?soonest possible? should be given its natural meaning as much as possible without any extraneous interpretation.
What then is meant by soonest possible? Black?s Law Dictionary, Sixth Edition; defined the phrase ?soonest as practicable? to mean ?within a reasonable time?. The same Black?s Law Dictionary went further to state that practicable is equivalent and used interchangeably with possible.
Having regards to the aforesaid definition. I have no hesitation in holding that the expression ?soonest possible? means within a reasonable time. In effect, the April, 1998 dated (sic: date) asserted by the 1st Defendant is contrary to the express term of Exhibit ?B? which exhibit represents what was agreed

by the parties.
I wish to state that it is not open to any of the parties and indeed the Court to import into an agreement what was not agreed upon by the parties. It is not the function of the Court to make contract for the parties. In the same vein, it is not open to any of the parties to unilaterally change the terms of the agreement entered into by the parties.
In any case, let me observe that the fact that the 1st Defendant received further payment between November, 1998 and June 1999 appears not to support the position of the 1st Defendant that parties agreed on April, 1998 date for the payment of the outstanding balance. In any case, I wish to state that even if April date was agreed upon by the parties, the acceptance of further payment after that date amounts to a waiver of any such agreement.
As I have stated earlier, the 1st Defendant?s case is that he terminated the agreement as a result of failure by the Claimant to pay within the agreed date and the expiration of the grace period despite several demands. However, having regards to my findings herein, no express date was agreed by the parties, rather it is the agreement of the

parties that payment is to be made within reasonable time. The law is that where no stipulated time is agreed upon by the parties, if the balance of the purchase price is tendered within a reasonable time, the vendor cannot resile from the contract of sale and the purchaser in possession is entitled to a decree of specific performance. See xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
The Claimant gave evidence to the effect that he tendered the balance in December, 1999, the 1st Defendant refused to collect same insisting that the Claimant must pay N130,000.00 (one hundred and thirty thousand Naira) which the 1st Defendant called interest on the money he borrowed. The question is, was the balance tendered within a reasonable time when the Claimant tendered same in December, 1999?
The 1st Defendant by his letter dated the 3rd day of November, 1999 and tendered in this proceedings as Exhibit ?C? gave the Claimant Notice to the effect that he ?may cancel agreement if by November, 1999? he failed to pay the balance of N128,500.00 (one hundred and twenty-eight thousand, five hundred Naira) plus the sum of interest totalling N130,000.00 (one

hundred and thirty thousand Naira). That by December, 1999, he may have no option than to sell the 9 plus to other interested parties. The Claimant gave evidence to the fact that he tendered the balance by December, 1999. The 1st Defendant rejected same, insisting that he must pay the N130,000.00 (one hundred and thirty thousand Naira) which the 1st Defendant called interest. The 1st Defendant did not deny the fact that the Claimant tendered the balance in December, 1999. Having not denied same, it is deemed to have been admitted.
It is my view that the tendering of the balance by the Claimant in December, 1999, whether reckoned from the date the last payment was made or from the date of Exhibit ?C? was made within reasonable time. My view is based on the fact that until the issuance of Exhibit ?C? by the 1st Defendant, there had no (sic: not) been any written demand regarding payment by the parties.
The introduction of the alleged sum of N130,000.00 (one hundred and thirty thousand Naira) by the 1st Defendant in Exhibit ?C? is wrong in that it is not part of settled price or terms of the contract and therefore

part of the outstanding amount. As I stated earlier, it is absolutely not within the province of any of the contracting parties in the absence of invitation to unilaterally change or vary the terms of the contract by incorporating into it terms that had not been agreed upon. See xxxxxxxxxxxxxxxxxxxxxx
It is therefore my view that the introduction of the said sum of #130,000.00 (one hundred and thirty thousand Naira) and the insistence of the 1st Defendant that it should paid alongside the balance agreed upon by the parties is in breach of the agreement by the parties and I so hold.
Furthermore, having regards to my findings herein that the balance was tendered by the Claimant to the 1st Defendant within a reasonable time, the vendor cannot resile from the contract of sale. That being the case, the refusal of the 1st Defendant to collect the balance from the Claimant constitutes a breach of the agreement by the parties and I so hold. This issue is therefore resolved in favour of the Claimant.?

In my considered view, it is clear from all that the lower Court stated as re-produced above, that it

evaluated Exhibit ?C? in the light of other uncontroverted and/or established facts in the case and did not find Exhibit ?C? written by the 1st Appellant as having terminated the contract for the sale of land between the said 1st Appellant and the Respondent. The said Exhibit ?C? is on page 253 of the record. I have painstakingly perused the same, and I am clearly of the considered view that the 1st Appellant did not terminate the contract for the sale of land between him and the Respondent in or by the said letter, even if it was his (1st Appellant?s) intention to do so. He only gave an indication that he may cancel the contract in question, in the event the Respondent did not pay the monies he (1st Appellant) asked for therein, by end of November; and that by December, 1999, he shall be left with no option than to sell his land to someone else. I am of the considered view that the 1st Appellant by his own showing left the window open for the Respondent to come up with the outstanding money due for the parcels of land (in respect of which the Respondent had made a part-payment of N200,000.00 in January, 1998 and other

payments in November 1998, March and June, 1999), from the date of the delivery of the said Exhibit to the Respondent, till any time or date in December, 1999. The lower Court made a specific finding that the Respondent went to the house of the 1st Appellant in December, 1999 to pay the outstanding money or balance due to the said 1st Appellant under the contract for the sale of land, but he refused to accept the same as that was not all that he (1st Appellant) demanded for in Exhibit ?C?. Suffice, it to say that given the circumstances of this case and the apparent familial relationship between the 1st Appellant and the Respondent, the 1st Appellant never set out any specific date or period for the Respondent to pay in full for the land in respect of which the Respondent made a part payment in January, 1998 and that the attempt by the Respondent to pay in full the outstanding sum in respect of the land, in December, 1999 after the receipt of Exhibit ?C? was within a reasonable time. In other words, reasonable time from the circumstances of the instant case, cannot properly be computed from the date of the part payment of N200,000.00

for the plots of land by the Respondent, but from the time when the 1st Appellant made it clear to the Respondent that he was no longer willing to accept staggered and unscheduled payments from the Respondent. The Respondent presented unchallenged evidence that he went to the house of the 1st Appellant to tender the whole of the outstanding sum for the plots of land in December, 1999 but that the 1st Appellant refused to accept the same because the sum tendered was short by N130,000.00 as demanded in Exhibit ?C?. The situation therefore in my considered view was not one of the Respondent failing to make payment for the outstanding sum in respect of the plots of land he bought from the 1st Appellant within a reasonable time of the demand for same, but one in which the 1st Appellant refused or declined to accept the outstanding payment as what was tendered by the Respondent was not what he wanted. The 1st Appellant did not decline to accept what the Respondent tendered to him on the ground that he considered the payments to have been long overdue.

?Flowing from all that has been said is that the Appellants are in clear misapprehension of the

portion of the judgment of the lower Court re-produced hereinbefore in respect of their stance that the lower Court did not give due consideration to Exhibit ?C? and/or that the 1st Appellant terminated the contract between him and the Respondent by the said Exhibit ?C?. The 1st Appellant was most ambivalent or indecisive in the said Exhibit ?C? and he would appear not to know that he could not have jacked up the monies the Respondent was to pay for the plots of land their contract for sale of land was about, and at the same time be heard to have terminated the said contract, on the ground of the non-payment of what was outstanding therefore and as revised upward by him (1st Appellant) in the said Exhibit ?C?. Whatever, the 1st Appellant did in respect of the contract for sale of land between him and the Respondent by virtue of Exhibit ?C?; not beneficial to the Respondent, cannot be taken as a proper determination of the contract in question. The refusal in December, 1999, by the 1st Appellant to accept the balance of the money in respect of the contract for sale of land between him and the

Respondent, is clearly the act that brought the contract for sale of land in question to an end. Hence, the 1st Appellant cannot be said to have properly terminated the said contract on the basis of or pursuant to Exhibit ?C? or any act of commission or omission by the Respondent prior to the rejection of the money tendered by the Respondent in December, 1999. Appellants? issue 1, is accordingly resolved against them.

APPELLANTS? ISSUE 2 ? WHETHER THE LEARNED TRIAL JUDGE WAS NOT WRONG IN LAW, WHEN HE MADE AN ORDER OF SPECIFIC PERFORMANCE OF THE SALE OF THE LAND IN DISPUTE?
Dwelling on this issue, the Appellants submitted that the lower Court was wrong in law when it ordered for the specific performance of the agreement for the sale of the land in dispute, as the agreement reached by the 1st Appellant and the Respondent was not a concluded one. This is because by Exhibit ?B? parties agreed that ?purchase agreement and transfer of ownership would be effected soonest possible?. That even if there was an initial agreement, the breach of same by the Respondent stopped the agreement from ever

getting to the stage of “purchase agreement and transfer of’ ownership”. That no legal or equitable interest in the land was transferred to the Respondent by the agreement to warrant an order of specific performance. This so, as the incidents of a valid sale under customary law were absent. That the incidents are equally the same under common law. That the lower Court therefore misapplied the law when it held that the Respondent acquired an equitable interest in the land in dispute. While not conceding that part-payment of the purchase price satisfied the first condition stipulated by law, the Appellants submitted that in any event the pleadings before the lower Court show that the Respondent was not let into possession in the presence or witnesses. That no evidence was led as to the person(s) present when the Respondent was put in possession of the land in dispute and no witness even witnessed the agreement of sale. That there was no ground to presume or assume that possession was ever given to the Respondent by the 1st Appellant. It is the stance of the Appellants that the lower Court wrongly stated the law when it said on page 229 of the record that “even

if the entry was unlawful, it did not erase the fact that the Claimant established his physical presence”.

The Appellants submitted that the position of the law is that “a trespasser cannot claim to be in possession by mere act of entry”; hence the illegal entry by the Respondent cannot be regarded as possession in anyway. That though the lower Court on page 229 of the record agreed with the Respondent that the 1st Appellant “directed him to take possession”, the said Court however did not mention any person who witnessed this because no witness was called to establish this possession or instruction. That the lower Court erroneously assumed that the Respondent was in possession of the land because of the several attempts of the 1st Appellant to stop any attempt by the Respondent to trespass unto the land. The Appellants concluded by urging the Court to resolve this issue in their favour.

?Respondent dealt with this issue under his issue 2. The Respondent not only adopted the submissions in respect of his issue 1, but submitted that the Appellants in canvassing that he is not entitled to the order of specific performance, would want the

1st Appellant who ran foul of the law, to take advantage or reap benefit from his own wrong. That it is trite law that a person cannot take advantage or reap benefit from his own wrong. The Respondent urged the Court to hold that since the Appellants have offended against the law, they cannot seek the help of the law. Dwelling on the options open to him (Respondent) since it was the 1st Appellant that breached the contract, it is the stance of the Respondent that lower Court was right in its conclusion that he (Respondent) may elect to hold the contract as at an end, that is, that the same is no longer binding on him while retaining the right to sue for damages in respect of the breach committed and that he has opted for the first option by suing for specific performance. It is the stance of the Respondent that the submission of the Appellants that the agreement between the parties was not a concluded one is unfounded. The Respondent submitted that there was a concluded contract between him and the 1st Appellant and that the parties agreed on all the essential terms of the agreement which are sufficiently precise that the Court can order exact performance.

That the words ?Purchase agreement and transfer of ownership would be effected soonest possible used in Exhibit B?, do not make the agreement inconclusive, as the Appellants have submitted. That the lower Court rightly held that soonest possible means within a reasonable time. The Respondent submitted to the effect that the position of the Appellants regarding valid sale of land under customary law, is diversionary. Firstly, this is because, the issue before the lower Court is not sale of land under customary law where the terms are not normally documented. That the terms of the transaction in this matter are clearly shown in Exhibit ?B?. Secondly, that the issue before the Court is not that of the validity of sale of land under customary law. The Respondent submitted that in the absence of documentary evidence, the need for witnesses to be present in customary transaction arises together with the need for handing over of the land in their presence. The Respondent submitted that where the three essential ingredients required under customary sale are present i.e. (1) That the full purchase price would have been paid; (2) That the

purchaser is let into possession by the vendor; (3) That this is done in the presence of witnesses, then, there may not be need for an order for specific performance because the transaction has already been concluded. That as it is trite law that facts which are admitted needs no further proof, the issue of possession was not in doubt as the 1st Appellant admitted that the Respondent was in possession of the land. That it was therefore immaterial that the lower Court said even if the entry was unlawful, it did not erase the fact that the Claimant established his physical presence. The Respondent submitted that it is important to note that the Appellants never sought the leave of the Court to appeal against this finding of fact by the lower Court. That consequently, they cannot challenge the said finding. It is the stance of the Respondent that it is totally false as submitted by the Appellants that the lower Court gave a declaratory judgment based on the presumed weakness in the Appellants case or on admission of the Appellants. Having also submitted that the cases cited by the Appellants do not assist the Appellants case, more so, when it is the 1st Appellant

that is in breach of the agreement, the Respondent urged the Court to hold that the lower Court was not wrong when it made an order for specific performance of the contract and struck out the Respondent alternative claim seeking payment of N20 Million being special and general damages against the 1st Appellant. Consequently, the Respondent urged this Court to resolve this issue against the Appellants, and in his (Respondent?s) favour.

In their reply brief of argument, the Appellants in responding to Respondent?s issue 3, submitted that the law is clear that the fact that a trial Court came to a conclusion without evaluating the evidence of vital witnesses or exhibit, does not stop the Appeal Court from itself evaluating the evidence and seeing whether there is any justification for such conclusion. It is also the stance of the Appellants, that the Respondent’s argument on breach is misplaced. That before the Court considers the issue of breach, the Court must establish that there is a legal or equitable right capable of being breached. It is the stance of the Appellants that no legal or equitable interest in the land in dispute was

transferred to the Respondent by any agreement to warrant an order of specific performance. Furthermore, the Appellants submitted to the effect that the argument in paragraph 3.56 of the Respondent’s brief goes against the traditional role of the Respondent. That it is wrong for the Respondent to canvass argument against the judgment of the lower Court without filing a respondent?s notice. That there is no appeal challenging the finding of the lower Court that the sale of land in the instant case is one under native law and custom. The Appellants again submitted that the Respondent cannot argue that the agreement for sale of land in the instant case was not one under native law and custom when the lower Court clearly found on page 230 (last paragraph) of the record, that this is so in the instant case. The Court was urged to discountenance the submissions of the Respondent in that regard as there is no appeal on this issue.

?Again, I consider it expedient to re-produce what the lower Court said in its judgment in coming to a decision that the Respondent was entitled to enforce the breach of the contract for the sale of land between him and the 1st

Appellant by an order of specific performance. It runs thus:-
?Having resolved that it is the 1st Defendant who breached the agreement by the parties, the question is what are the options open to the Claimant?
The law in such situation is that if one party to a contract commits a breach thereon, and if that breach is something that goes to the root of the contract, the other party has his options. He may still treat the contract as existing and sue for specific performance or he may elect to hold the contract as at an end, that is, that the same is no longer binding on him while retaining the right to sue for damages in respect of the breach committed. See xxxxxxxxxxxxxxxxxxxxxxxxxxx
In the instant case, having regards to my findings, it is open to the Claimant to exercise any of the 2 options. The Claimant has opted for the 1st option by suing for specific performance. I will come to this issue later.
On issue 3, the 2nd Defendant has asserted that he is a bonafide purchaser for value without Notice. The Claimant is of the contrary view. Who is right?
To buttress his claim that he had no notice of any interest on the land,

the 2nd Defendant pleaded and led evidence to the effect that when he went on inspection of the land in dispute with the 1st Defendant that he did not see any item of cement block that suggested to him that the land was already in the possession of someone else and that there were no crops on the land suggestive of someone else being in possession. 2nd Defendant further asserted that he made necessary inquires from members of Asaga Community. He denied that there were fencing project by the Claimant or any other person on the land. He asserted that such a project would have put him on Notice. The Claimant in support of his case that the 2nd Defendant is not a bonafide purchaser for value stated that on the payment of the initial amount, the 1st Defendant directed him to take possession sequel of which he took possession of the land in January, 1998 and farmed thereon. That he, in addition assembled heaps of cement blocks on the land to commence the construction of his building, and also embarked on a fence work round the perimeter boundary of the entire land and did some excavation work thereon all to the knowledge of the 1st and 2nd Defendants.

The Claimant further stated that the 1st Defendant acknowledged his possession of the land in dispute in his application for injunction in Suit No. HOH/39/2000 ? CHIEF OKECHUKWU MADUEKWE Vs. NNAMDI OLUGU, wherein the 1st Defendant deposed that the Claimant had dug foundation on the land preparatory to building therein, and urged the Court to restrain the Claimant from continuing the work. Claimant went further to state that it was on the foundation he had dug on the land in dispute that the 2nd Defendant added his perimeter fence block work. Furthermore, the Claimant relied on his evidence under cross-examination that he met the 2nd Defendant in Port Harcourt in the 1990?s at a filling station owned by one SAM ONUKA from Ohafia. That in 1999, the 2nd Defendant visited him that he had purchased the land. Claimant further stated that he informed the 2nd Defendant that he had some blocks on the land for the construction of his building. According to the Claimant, 2nd Defendant did not challenge the Claimant.
Before I proceed, let me state that the aforesaid pieces of evidence obtained under cross-examination was not pleaded and in effect go to no

issue irrespective of the fact that they were obtained under cross-examination. For a party to take advantage of fact obtained under cross-examination, such fact as the aforesaid or its background fact ought to be pleaded. See xxxx In effect, the said fact not having been pleaded goes to no issue and is accordingly expunged.
Now, coming to the main issue, I have outlined the pleadings and evidence of the Claimant and his acts of possession on the land in dispute. The 1st Defendant in reaction to the Claimant pleadings that he went into possession of the land in dispute and carried out some construction work stated that the 1st Defendant who ordinarily resides at Lagos where he carries on his business did not know when the Claimant unlawfully moved into the land to do some work. However, that the 1st Defendant promptly stopped the Claimant from doing any FURTHER WORK on the land when he knew that the Claimant had unlawfully moved into the land. See paragraph 3 (G) of the 1st Defendant?s statement of defence and paragraph 10 of the 1st Defendant?s statement on oath.
It is my view that the aforesaid piece of

evidence is an admission of the Claimant?s evidence that he took possession after the part payment and did some excavation and dug foundation round the perimeter boundary. Thus, I do not agree with the 2nd Defendant that there was nothing on the land to put him on notice of any other interest on the land, though the 1st Defendant claims that the entry of the Claimant into the land was unlawful. I do not agree with the 1st Defendant on that. I believe the evidence of the Claimant that the 1st Defendant directed him to take possession after making the part payment and that he went into possession and did some excavation work and I so hold.
Besides, even if the entry was unlawful, it did not erase the fact that the Claimant established his physical presence on the land by doing some excavation on the land. This is more so having regards to the 1st Defendant?s evidence that he stopped the Claimant from doing FURTHER WORK on the land in dispute. The expression ?further work? presupposes that the Claimant has done work on the land. In addition, the Claimant stated that it was on the foundation he dug on the land in dispute that the 2nd

Defendant added his perimeter fence block work. The 2nd Defendant did not deny this fact. It is my view that the excavation and fence work round the perimeter boundary of the land in dispute and the blocks assembled on the land in dispute which was admitted by the 1st Defendant constitutes Notice of adverse interest on the land in dispute which ought to have put him on inquiry. The fact that the Claimant dug foundation on the land in dispute is further supported by Exhibit ?G? i.e. the affidavit in support of the motion for interlocutory injunction wherein the 1st Defendant stated that the Claimant has dug foundation preparatory to commencement of fencing on the land in dispute. All these go to support the Claimant?s case that he embarked on fence work on the land in dispute. The facts do not support the 2nd Defendant?s contention that there was no fencing going on or anything that will put him on Notice of adverse possession.
I do not agree with him on that. Rather, I hold that the fact of excavation and the foundation dug for fence and the cement blocks packed on the land constitutes sufficient Notice to the 2nd Defendant of the

Claimant?s presence on the land.
More importantly, let me ask whether the 2nd Defendant is a bonafide purchaser of the Legal estate of the land in dispute? The root of title of the 2nd Defendant herein is Exhibit ?P? the Power of Attorney given to the 2nd Defendant by the 1st Defendant. The law is settled that Power of Attorney is not a document of transfer of title. It does not transfer interest to any person not to talk of the legal estate in the property. See xxxxx
It is doubtful if it can confer equitable interest.
The law is that where there is a an agreement for sale of land either under native law and custom or any other mode of sale and for which the purchaser like the Claimant in the instant case makes part payment of the purchase price to the vendor, the 1st Defendant as in the instant case, and in furtherance thereof is put in possession, he has acquired an equitable interest in the property which ranks as high as a legal estate created by the same vendor or his legal representatives in favour

of another person ? see xxxxxxx
Having regards to the foregoing, the only person who can take priority over someone who had acquired a prior equitable interest over the same property and/or dislodge a person with prior equitable interest is a subsequent bonafide purchaser of the legal estate for value without Notice ? see also xxxxxxxxxxxxxxx.
The summary of what I have been saying is that the 2nd Defendant is not a purchaser of the legal estate in that Exhibit ?P? the root of title relied upon by the 2nd Defendant is a mere Power of Attorney which is neither an instrument of transfer of title or document of conveyance of the legal estate. Thus, the transaction between the 2nd Defendant and 1st Defendant having not transferred the legal estate to the 2nd Defendant cannot take priority over the Claimant?s interest. In effect, the 2nd Defendant is not a purchaser of the legal estate.
Having regards to all I have said herein, the 2nd Defendant, is not a bonafide purchaser of the legal estate for value without notice and I so hold. This issue is accordingly resolved in favour of the

Claimant.
On issue 4, the law as stated earlier 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 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 degree of specific performance. In the instant case, it is not in dispute that the Claimant made part payment in respect of the land in dispute and I have earlier held that the Claimant was put into possession and that the Claimant tendered the balance within reasonable time. In effect, the Claimant had satisfied all the necessary requirements entitling him to specific performance.?

It is in my considered view very glaring from the portion(s) of the judgment of the lower Court re-produced above, particularly the underlined portion(s), that the said Court not only made an unequivocal finding that the Respondent was entitled to choose or opt for a cause of action as it were, in specific performance given the fact that the contract for sale of land involving the 1st Appellant and the Respondent was a transaction under

native law and custom; but that the 1st Appellant having delivered possession of the land in dispute to the Respondent, had completely executed the contract and cannot resile from the said contract. These findings of the lower Court in my considered view acknowledge the fact that it is not in all cases of part-payment under a contract for sale of land under customary law that the vendor cannot resile from the contract. That is only where the vendor has let the purchaser under the contract for sale into possession that this cannot be done. I cannot but say that the lower Court is eminently correct in its exposition of the position of law that under a contract for sale of land under customary land, the vendor of a parcel of land will not be able to resile from the contract once he has delivered possession of the parcel of land in question to the purchaser whether or not it is a part payment of the purchase sum that has been made therefore. This position of the law in my considered view would appear to have been given due recognition by this Court in the case of YUSUF V. DADA (2017) LPELR ? 42001 (CA) wherein Owoade, JCA; in dwelling on the distinction

between sale of land under English law and sale of land under customary law, stated thus: –
?The Respondents as Claimants pleaded and gave evidence of acquisition of land under native law and custom. In such a case, the primary duty placed on them is to prove a valid sale of land under customary law. To do so, three essential ingredients are required, namely; (a) payment of purchase price (b) purchaser is let into possession by the vendor (c) in the presence of witnesses. See OGUNDALU VS. MACJOB (2006) 7 NWLR (PT. 978) 148.
In the instant case, even if it is assumed that Respondents (sic) Exhibit 3 is a purchase receipt in spite of the vague consideration clause and the unascertainability of the purchase price in its Clause 3, the Respondents still have the bounden duty to prove their letting into possession in the presence of witnesses. This, they failed to do.
The argument of the Respondents that the written Agreement Exhibit 3 has incorporated the fulfilment of traditional requirements in relation to the sale of the said land under customary law is patently untenable. The further argument by the Respondents that the non-tendering of

oral evidence on the requirements of letting into possession in the presence of witnesses is covered by the provision of Section 128(1) of the Evidence Act is equally non-sequitor.
The reason for (i) above is that there is a distinction in law between sale of land under Nigerian Customary Laws and sale of land under the received English law. The conditions for a valid sale are not the same in both cases. For a purchaser under English law to acquire a legal title over land, there must be evidence of payment of the purchase price, acknowledgment of same and execution of a deed of conveyance. However, a valid sale of land could be conducted under native law and custom without the necessity of a conveyance as under English Law. But where there is a suit in respect of the land, it becomes necessary to call those who witnessed the transaction to give evidence.
See: COMM, L&H, KWARA STATE VS. ATANDA (2007) 2 NWLR (PT. 1018) 360; AMINU VS. OGUNYEBI (2004) 10 NWLR (PT. 882) 457. Indeed, under native law and custom, the requirements for a valid sale of land are the payment of the agreed purchase money by the purchaser and delivery of possession of the land

by the vendor to him. It is not necessary to have a written contract or conveyance as under English law. See YUSUF VS. MATTHEW (1999) 13 NWLR (PT. 633) 30; ADESANYA VS. ADERONMU (2000) 6 SC (PART 11) 18; ELEMA VS. AKENZUA (2000) 6 SC (PART III) 26 AT 27; AJAYI VS. JOLAOSHO (2004) 2 NWLR (PT. 856) 89.
On the second point, by the Respondents that is the applicability or otherwise of Section 128(1) of the Evidence Act; any attempt by the Respondents to rely solely on the content of Exhibit 3 to satisfy the requirements of delivery of possession in the presence of witnesses would be nothing short of tendering inadmissible documentary Hearsay evidence. This is because even if the content of Exhibit 3 contains or incorporates the customary law requirements of delivery of possession in the presence of witnesses, it would still be tantamount to tendering evidence of witnesses not called to give evidence to prove the truth of the assertion.
Clearly, evidence, oral or documentary of a witness not called to give evidence may or may not be admissible. It is hearsay and inadmissible if it is to prove the truth of an assertion. It is not hearsay and admissible if

it is to prove the fact that it was made rather than the truth of an assertion. SUBRAMANIAN VS. PUBLIC PROSECUTOR (1956) 1 W.L.R. 965 AT 969; MOSES OKHUAROBO VS. CHIEF E. AIGBE (2002) NWLR (PT. 771) 29.
On the second point, made by the learned Counsel for the Respondents, it suffices to say that Section 128(1) of the Evidence Act is not relevant and it is inapplicable to the facts and circumstances of the case. Section 128(1) of the Evidence Act deals with exclusion of oral evidence by documentary evidence and says that: no evidence may be given … of the terms of such grant or disposition of property except the document itself ? (sic) nor may the contents of any such document be contradicted, altered added to or varied by oral evidence.? (sic)
In the instant case, the fact of letting into possession in the presence of witnesses as requirements of valid sale of land under customary law are not ? (sic) terms of such contract grant or disposition of property ? (sic) as envisaged under Section 128(1) of the Evidence Act.
In fact, the cases of COMM, L&H, KWARA STATE VS. ATANDA (Supra) and AMINU VS. OGUNYEBI (Supra) have established that

where there is a suit in respect of land held under native law and custom as in the instant case, it becomes necessary to call those who witnessed the transaction to give evidence. xxxxxxxxxxxxxxxx?
Guided by the case of ODUSOGA V. RICKETTS (1997) LPELR ? 2256 (SC) extensively relied on by the lower Court in its judgment and the above cited case, it becomes obvious in my considered view (and whether or not the instant case is in respect of valid sale of land under customary law), that the letting of the Respondent into possession of the land in respect of which the 1st Appellant and the Respondent entered into a contract for sale by the said 1st Appellant is sine qua non for him (Respondent) to take advantage of the position of the law that a vendor who has accepted part-payment of the purchase sum for a parcel of land sold under customary law and let the purchaser into possession cannot resile from the sale in question.
The Respondent it is to be noted has no grouse against the findings of the lower Court that transaction between the 1st Appellant and him (Respondent) in respect of the parcels of land in dispute in the

instant case, was carried out under customary law and indeed, that the Respondent was let into possession after the part payment he made to the 1st Appellant by the said 1st Appellant. This being the position, and as rightly submitted by the Appellants, the Respondent cannot be seen as arguing against the said findings in his brief of argument. The law has not removed the right of a party in whose favour judgment is delivered in a case to appeal against any finding made in the case and in respect of which he believes the Court to be wrong. I however do not think a respondent?s notice can be used to nullify or set aside a finding made by a trial Court which the beneficiary of the judgment finds distasteful as it were, as the Appellants would appear to have submitted. This is particularly so when the judgment in the party?s favour is predicated on the said finding or findings. Furthermore, it would appear that the Respondent is oblivious of the fact that the instant case is one decided by the lower Court in its capacity as a Court of first instance. Not as a Court exercising its appellate jurisdiction over a decision of a Court subordinate to it

(lower Court) in status or ranking. In the circumstances, I therefore cannot fathom why the Appellants are expected to seek for the ?leave of Court? (Court, which the Respondent in any event never specified) in respect of any finding made by the lower Court in the instant case. Suffice it to say that given the provision of Section 241(1)(a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the Appellants have a right of appeal as of right against the final decision of the lower Court sitting as a Court of first instance and I simply do not see how appealing with ?leave of Court? against any aspect of the decision of the lower Court sitting as a Court of first instance, fits into the said provision.
As earlier stated, the lower Court clearly saw the need that the Respondent must establish the fact that he was let into possession of the land in dispute in order for him to take advantage of the consequence of the breach of contract for sale of the said land by claiming for specific performance. It is in this con that the lower Court found the Respondent to have established that he was let into possession

as it were of the land in dispute by the 1st Appellant or upon the directive of the said 1st Appellant. The lower Court in arriving at this finding however glaringly relied on the ipse dixit of the Respondent in preference to the ipse dixit of the 1st Appellant that he never let the Respondent into possession of the said parcels of land in question after the part-payment he made. I am of the considered view that the lower Court having made a finding that the transaction between the 1st Appellant and the Respondent was under customary law and to the extent that the said lower Court relied on the fact of possession of the said land by the Respondent after the part payment he made, should have looked at the evidence adduced by the Respondent to see if his initial entry into the land in dispute was as a result of his (Respondent) having been let into possession by the 1st Appellant. And given the fact that the lower Court found the transaction between the 1st Appellant and the Respondent to have been one under customary law, this in my considered view could only be established by the calling of the witness or witnesses in whose presence the land in question was

handed over to the Respondent or in whose presence the Respondent was let into possession. It is evident from the pleadings before the Court that the Respondent never pleaded the fact that he was let into possession by the 1st Appellant in the presence of any witness or witnesses; talk less of adducing evidence in that regard. Evidence in respect of any work done on the land by the Respondent and/or the attempt by the 1st Appellant to stop the work being undertaken on the land by the Respondent in the absence of evidence that the Respondent was initially let into possession by the 1st Appellant definitely cannot be the proper basis for the finding by the lower Court that the Respondent was let into possession by the 1st Appellant. A fortiori, the finding of the lower Court that ?even if the entry was unlawful, it did not erase the fact that the claimant established his physical presence on the land by doing some excavation on land? cannot be proper against the backdrop of the fact that one cannot put something on nothing and expect it to stand. All that I am saying is that the Respondent did not establish the voluntary relinquishment or hand over

of the possession of the land covered by the contract for sale of land to him (Respondent) by the 1st Appellant. The lower Court would appear to have lost sight of the fact that evidence of a purchaser of land under customary law being let into possession in the presence of a witness or witnesses is not cosmetic or put in place for the fun of it. In my view it is to help for the easy resolution of any controversy in respect of the issue of lawful acquisition of possession under a system of law that is not known for documentation. This is particularly so against the backdrop of the position of the law as enunciated per Aderemi, JSC; in the case of OLUBODUN V. LAWAL (2008) LPELR ? 2609 (SC), (2008) 17 NWLR (Pt. 1115) 1 S.C. to wit: ?…it is a well established principle of law that documentary evidence is unknown to native law and custom. See (1) Ajadi v. Olarewaju (1969) 1 ALL NLR 382 and (2) Egwu v. Egwu (1995) 5 NWLR (pt.396) 351.”
Flowing from all that has been said, is that while the lower Court was right regarding the options available to an innocent party under a truncated or breached contract for the sale of land under customary

law, the option of suing for the specific performance of the said contract, is certainly not available to the Respondent in the circumstances of the instant case. This is because the Respondent who made a part payment for the land the contract for sale is about, never established that he was let into possession of the land in dispute by the 1st Appellant in the presence of a witness or witnesses. In other words, the lower Court was clearly in error in finding that the Respondent properly opted for specific performance and to have made an order in that regard when the Respondent did not establish the fact that he was let into possession of the land in dispute by the 1st Appellant.
Flowing from all that has been said, is that Appellants? issue 2 is resolved in their favour.

APPELLANTS? ISSUE 3 ? WHETHER THE LEARNED TRIAL JUDGE WAS NOT WRONG IN LAW, WHEN HE DISMISSED THE 2ND APPELLANT’S COUNTER-CLAIM?
?In dwelling on this issue, the Appellants not only relied on their arguments in respect of their issues 1 and 2, but further submitted that after the agreement between the 1st Appellant and the Respondent collapsed, the 1st

Appellant donated all his interest in four (4) plots of the land in dispute to the 2nd Appellant through an irrevocable power of attorney, backed with consideration and dated 18/1/2000 and which was duly registered at the lands registry in Umuahia as No. 90 At page 90 in Volume 901 (i.e. Exhibit P). That the lower Court was wrong in law when it held that a ?power of attorney does not transfer interest to any person” and made this the ground for dismissing the 2nd Appellant’s counter claim. The Appellants referred to Section 2 of the Land Instrument Registration Law, Cap. 108, Laws of Abia State of Nigeria 2005 regarding the meaning of an “instrument” and submitted that inasmuch as the definition of ?instrument? included a certificate of purchase and a power of attorney, a power of attorney can properly transfer or grant legal interest in a land to the grantee. That a grantee can claim this interest against a third party. That the grantee is only restricted from claiming the powers granted against the interest of the grantor of the power. That in the instant case, the deed of irrevocable power of attorney granted the 2nd Appellant legal right

to the grant of certificate of occupancy in the land in dispute and that the Respondent was not party to the power of attorney and therefore lacks the locus to challenge the powers granted. This is more so as the Respondent having not filed a defence or reply to the 2nd Appellant’s counter-claim is deemed to have agreed to the claims made therein. That the 2nd Appellant is therefore entitled to the grant of statutory right of occupancy as granted by the power of attorney and other claims in his counter claim. The Appellants urged this Court to follow the law and resolve this issue in their favour.

In dwelling on his issue 3, the Respondent having adopted the arguments in respect of his issues 1 and 2, submitted that the lower Court was not wrong in law when it dismissed the 2nd Appellant’s counter claim. It is the stance of the Respondent that first and foremost, the purported counter claim of the 2nd Appellant is incompetent as the 2nd Appellant never paid for the said counter claim. It is the position of the Respondent that it is trite law that something cannot be put on nothing. That if this is done, it is bound to collapse. The Respondent submitted

that since no payment was made for the reliefs sought in the counter claim, the jurisdiction of the lower Court is not activated. That the counter claim is therefore of no moment. It is also the stance of the Respondent that it is wrong as submitted by the Appellants that the ground upon which the lower Court dismissed the purported counter claim of the 2nd Appellant is because the said Court found that “power of attorney does not transfer interest to any person”. That the said counter claim was dismissed for the following reasons: (i) that the 2nd Appellant had notice of the Respondent’s presence on the land. The 2nd Appellant was thus not a bonafide purchaser for value without notice; (ii) that the 2nd Appellant was aware of the interest of the Respondent over the land in dispute because the 2nd Appellant admitted participating as a nominal party in the arbitration in Exhibit ?E? between the 1st Appellant and the Respondent whose interest was to know whether the panel will determine the case in favour of the 1st Appellant or in favour of the Respondent; (iii) that the 1st Appellant had earlier transferred his interest over the land to the

Respondent and thus had no more interest to transfer to the 2nd Appellant; (iv) that the Court had earlier made an order for specific performance in favour of the Respondent, since it was the 1st Appellant that breached the agreement. The Respondent submitted that the decision of the lower Court that power of attorney is not a document of transfer of title was given ex abundanti cautela in the circumstances. It is also the position of the Respondent that it is false as submitted by the Appellants that he (Respondent) did not file a defence or a reply to the 2nd Appellant’s counter claim. That he filed a Reply to the 1st and 2nd Appellants? statements of defence and reference was made to pages 101-105 of the records, particularly paragraphs 17-28 thereof. That he (Respondent) denied the 2nd Appellant’s counter claim. The Respondent ended up by urging the Court to hold that the lower Court was not wrong in law when it dismissed the 2nd Appellant’s counter claim and consequently to resolve this issue against the Appellants and in his (Respondent?s) favour.

?In their reply brief, the Appellants, submitted that argument of the Respondent

regarding payment for counterclaim goes to no issue as it is not connected to any ground of appeal and does not arise from the judgment of the lower Court appealed against. This Court was urged to discountenance the submissions of the Respondent on the issue on the authority of Organ v Nigerian Liquefied Natural Gas (2013) LPELR – 20942 (SC).

I am of the considered view that the Appellants are clearly on very firm grounds that the Respondent cannot argue regarding the non-payment of fees for the ?purported? (and I have used the word ?purported? most advisedly) counterclaim of the 2nd Appellant under his issue 3. This is because the issue of non-payment of fees for the purported counter claim does not flow from any of the grounds of appeal and also does not arise from the decision of the lower Court.

Now, I used the word ?purported? to qualify the counterclaim the 2nd Appellant has alleged that the lower Court wrongly dismissed, because I actually do not see any counterclaim in the statement of defence of the 2nd Appellant or any counterclaim that can be said to be related to the Respondent?s

claims/reliefs. All that the 2nd Appellant did in paragraph 13 of his statement of defence was to aver that he is damnified and claims against the plaintiff as follows: xxxxxxxxxxxxx? The Respondent was not portrayed as the vendor or seller of any parcel of land in statement of defence of the 2nd Appellant. Indeed, the Appellants in arguing this issue, submitted that ?in the instant case, the deed of irrevocable power of attorney granted the 2nd Appellant legal right to the grant of certificate of occupancy in the land in dispute and that the Respondent was not party to the power of attorney and therefore lacks the locus to challenge the powers granted?. Though the Respondent by his action disputed the propriety of the sale of land to the 2nd Appellant by the 1st Appellant, I simply do not see how the 2nd Appellant whose claim is that he bought the land in dispute from the 1st Appellant, can seek for a declaration of entitlement ?to title of statutory right of occupancy over 4 plots of land represented in the 2nd Appellant?s survey plan? against the Respondent, in the suit instituted against him by the said Respondent.

Whatever claim the 2nd Appellant has can only be perused against the 1st Appellant and this the 2nd Appellant has glaringly not done. Given the above stated position, the question of the lower Court entering any judgment in favour of the Appellants and particularly the 2nd Appellant, has no basis. The lower Court in my considered view, should have simply struck out paragraph 13 of the statement of defence of the 2nd Appellant for being incongruous with the case set up in the said process. The averment in paragraph 13 of the statement of defence of the 2nd Appellant, in my considered view is nothing more than a surreptitious attempt to have the lower Court give a stamp of approval to the so-called irrevocable power of attorney in respect of which the Respondent is not a party. I also cannot but opine that it was glaringly because the 2nd Appellant never disclosed in his statement of defence that he had any counter claim that the registrar of the lower Court did not and indeed could not have charged any fees in respect of such non-existent counter claim.

Flowing from all that has been said, is that the lower Court never had any counter claim before it

presented for adjudication by the 2nd Appellant; but incongruous pleading in paragraph 13 of the statement of defence of the said party and which should have been simply struck out by the lower Court as lacking in any cause of action against the Respondent. Since, the Appellants in arguing their issue 3 have urged this Court to follow the law and resolve same in their favour, the incongruous averment in paragraph 13 of the statement of defence of the 2nd Appellant, is accordingly struck out. To this extent Appellants? issue 3 would appear to have some measure of success.

Now, the resolution of Appellants? issue 2 in their favour and the initial resolution of their issue 1 against them, in my considered view portend that what the Respondent should have sued for, is for damages for the breach of the contract for the sale of land by the 1st Appellant for his refusal to accept the balance he (Respondent) tendered in December, 1999. This is what the alternative claim of the Respondent is about and I am of the considered view that this Court pursuant to its powers under Section 15 of the Court of Appeal Act, 2004, can eminently assess the

damages due to the Respondent, as the lower Court did not do so given its finding that the Respondent was entitled to an order of specific performance but which has now been found to be erroneous or wrong. It is however clear that the Respondent definitely cannot get anything in the region of what he has claimed in the alternative claim. In this regard it is beneficial to rely on the case of AGU V. GENERAL OIL LTD (2015) LPELR ? 24613 (SC) wherein the Supreme Court dwelling on damages payable for breach of contract per Peter-Odili, JSC; stated thus: –
?This Court had held in the case of Ijebu-Ode Local Government v. Adedeji Balogun (1991) 1 NWLR (Pt. 166) 136 at 142, that although the distinction between special and general damages in cases of breach of contract is still being made it is improper and misleading to so dichotomize damages in cases of contract. The warning stems from the fact that under a breach of contract the plaintiff can only claim special damages as general damages is known in the law of tort. However, in an adumbration to ward off any possible confusion that could arise and probably dispatch the merit of a claim with a wave of

the hand just because a categorization of special damages and general damages are made in the same suit in a claim for breach of contract – Karibi-Whyte, JSC in the said case of Ijebu-Ode Local Government v. Adedeji Balogun & Co. (supra) at page 158 stated:
“Although, this Court has observed in Maiden Electronics v. Attorney-General (1974) 1 All NLR 179 that it is improper in cases of breach contract to categorize damages by use of the words “general” and “special”, the distinction though misleading and likely to confuse is still made to determine the nature of the loss flowing from the breach…. the common error is the two are mutually exclusive…. The expressions are usually contracted; kept separate for better elucidation of the nature of the damages flowing from the breach of contract.”
What can be read in between the lines is that while it is not encouraged to make claims for special damages as well as general damages in a breach of contract doing so would not vitiate the suit or make it impossible for the Court to award that damage that would put the plaintiff in the position he would have been if the breach had not

occurred. That is a sifting of the wheat from the shaft done bearing in mind that on no account is a double compensation should be made leaving no room for speculative and or sentimental damages. xxxxx?
Against the backdrop of the position of the law regarding the award of damages for breach of contract, and given the fact that the Respondent adduced no evidence in respect of all the matters pleaded in paragraph 25 of the statement of claim, it becomes glaring that the sum he can properly be awarded as damages is the sum of N276,500.00 which is what the evidence of the parties clearly established as the money the Respondent parted with under the contract for sale of land which the 1st Appellant breached. Indeed, I consider it pertinent to state that even if the Respondent had adduced evidence in respect of the totality of the averment in the aforementioned paragraph 25 of the statement of claim, the Court would have no legal basis for acting on the said evidence to the benefit of the Respondent in respect of works done by him on the land in dispute. This is because such expenditures that could have been awarded as damages were incurred pursuant

to the illegal entry into the land in dispute by the Respondent.

In the final analysis, the instant appeal is meritorious and succeeds in part given the resolution of Appellants? issue 2 and to some extent issue 3, in their favour. Accordingly, the judgment of the lower Court granting the main claims of Respondent is set aside. Judgment is hereby entered for the Respondent in the sum of N276,500.00 being the total sum he parted with pursuant to the contract for the sale of land between him and the 1st Appellant and which the 1st Appellant breached. Furthermore, the order of the lower Court dismissing the purported counter claim of the 2nd Appellant, is set aside and an order striking out paragraph 13 of the statement of defence of the said 2nd Appellant is entered in its stead.
I make no order as to costs.

RITA NOSKHARE PEMU, J.C.A.: I had read before now. the lead judgment just delivered by my Brother AYOBODE OLUJIMI LOKULO-SODIPE, JCA.
I agree with his reasoning and conclusion,
I also allow the appeal in part.
?The order of the Court below dismissing the counter claim Of the 2nd Respondent

is Set aside and an order striking out the same is entered.
I abide by the consequential order made as to costs: there shall be no order as to costs.

IBRAHIM ALI ANDENYANGTSO, J.C.A.: Having read in advance, the lead judgment of my learned brother, AYOBODE OLUYIMI LOKULO-SODIPE, JCA, I completely agree with his reasoning and conclusion therein contained.
?I also abide by the orders therein made.

Appearances:

Ugochukwu Njoku for the AppelantsFor Appellant(s)

C.T. Okeke with P.C. OzobiaFor Respondent(s)

Appearances

Ugochukwu Njoku for the AppelantsFor Appellant

AND

C.T. Okeke with P.C. OzobiaFor Respondent