CHRISTOPHER OLUTUNDE ISHOLA v. BASHIRU AKANFE OLUWALOGON (2013)

CHRISTOPHER OLUTUNDE ISHOLA v. BASHIRU AKANFE OLUWALOGON

(2013)LCN/6582(CA)

In The Court of Appeal of Nigeria

On Thursday, the 5th day of December, 2013

CA/I/266/2009

RATIO

WHETHER AN ORDER OF SPECIFIC PERFORMANCE IS AN EQUITABLE REMEDY

It is now settled law that an order of specific performance is an equitable remedy, which is generally granted to enforce against a defendant the duty of doing what he agreed by contract to do, provided certain conditions are satisfied. Generally in a contract for the sale of land, the law takes it that damages will not be adequate compensation for such breach of contract. This is because, in considering whether or not to buy a particular piece or parcel of land, the purchaser may have been swayed by a number of factors, such as, profit, health or environmental factors, convenience, or neighbourhood, etc. Thus, Edozie, JSC stated in Gaji v. Paye (supra) at p.607 paragraphs C – D that:
“It is settled law that an order of specific performance is an equitable remedy granted to a successful litigant constraining the losing party to carry out the agreement, which it had entered into with the successful litigant. Like all equitable remedies, it is at the discretion of the court but the discretion must be exercised judiciously according to settled rules and principles. Although generally, an order of specific performance will not be readily granted where a remedy in damages is adequate, the law is that damages cannot adequately compensate a party for a breach of a contract for sale of an interest in a particular piece of land or a particular house in which case the order of specific performance is available at the instance of the vendor or purchaser,”
It is therefore apparent that, though the remedy is available to enforce against a defendant the duty to do that which he has contracted to do, it is not granted as a matter of course. It is a remedy which is granted on certain principles in the judicial and judicious exercise of the discretion of the trial court. See Eronini v. Iheuko (1989) 2 NSCC p.503 at 513; University of Lagos v. Olaniyan (1985) 16 NSCC (pt.1) p.98 at 113; Ezenwa v. Oko (2008) NWLR (pt.1075) P.610 and Afrotec Tech. Services (Nig.) Ltd v. MIA & Sons Ltd (2000) 15 NWLR (pt.692) p.730.

One of the conditions that must exist before an order of specific performance can be granted is that, there must be in existence a valid contract between the parties. See L.S.D.P.C.N.L. & N.L. v. S.F. Ltd. (1992) (pt.243) p.620. Even where the contract is valid in law, specific performance may be refused on general equitable principles. In other words, the court will only grant specific performance where it will be just and equitable to do so. It is not granted as of right. See Universal Vulcanizing (Nig.) Ltd v. I.U.T.T.C. (1992) NWLR (pt.266) p.388. It will also not be granted where the act to be performed will be impossible to be performed. See Ezenwa v. Oko (2008) NWLR (pt.1075) p.610. PER HARUNA SIMON TSAMMANI, J.C.A.

JUSTICES

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria

Between

CHRISTOPHER OLUTUNDE ISHOLA Appellant(s)

AND

BASHIRU AKANFE OLUWALOGON Respondent(s)

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): Before the Oyo State High Court, Ibadan Judicial Division, the Respondent who was the plaintiff sued the Appellant (Defendant) claiming the following reliefs:

(a) DECLARATION that the plaintiff is entitled to an order of specific performance of an agreement for sale of the property situate and lying at Kajola Area of Monatan, Ibadan made between the plaintiff and the late David Oluwole Isola dated 15th May, 1976.

(b) DECLARATION that the title in the said property has passed to the plaintiff by virtue of the said agreement.

(d) AN ACCOUNT and recovery of all the monies due and/or collected by the Defendant on the said property up to the date judgment is delivered in this suit.

(e) INJUNCTION restraining the Defendant whether by himself, his servants, agents and/or privies or otherwise howsoever from dealing with the said property as owner thereof.

The Writ of Summons and attendant statement of claim was initially initiated against, David Oluwole Ishola, the father of the Appellant. However, in the course of the proceedings, the said David Oluwole Ishola, died and was consequently substituted with his son, Christopher Olutunde Ishola who defended the action at the trial court and is now the Appellant. The Statement of Claim was amended twice with Consequential amendments to the statement of defence. The matter was accordingly heard on the Respondent’s Further Amended Statement of Defence dated the 29/04/2004 and filed the same date, and the Amended Statement of Defence filed the 23/01/2003. There was also a Reply to the Statement of Defence filed on the 24/1/2003.

A brief resume of the Respondent’s case is that, sometime in 1991 David Oluwole Ishola, father of the present Appellant entered into an agreement wherein the said David Oluwole Ishola agreed to and did sell to the Respondent certain property situate and lying at Kajola Area, Monatan, Ibadan. That the property consisted of four flats of three bedrooms each. According to the Respondent the Appellant’s father had fixed the price at one hundred and thirty thousand naira (N130,000.00) and that upon inspection of the said property, he (Respondent) signified his interest in buying the property at that price. That when the purchase price was to be paid the said David Oluwote Ishola changed his mind and informed the Respondent in the presence of the Estate agent and one Mr. Oshin that he would sell at One hundred and fourty-seven thousand naira (N147,000.00) only. The Respondent agreed and handed over to Mr. Oshin who was the agent of David Oluwole Ishola the sum of One hundred and thirty thousand naira (N130,000.00) with a promise to pay the balance of seventeen thousand naira (N17,000.00) the following day, which he did. That upon the payment of the sum of one hundred and fourty-seven thousand naira (N147,000.00) David Oluwole Ishola handed over to the Respondent the Original Survey Plan, Building Plan No. 37/LA/C/7174 dated 30/7/1984 and a photocopy of the Agreement with which the said David Oluwole Ishola bought the house.

It is also the Respondent’s case that, having paid the purchase price in full, a Sale Agreement was duly prepared on the instruction of David Oluwole Ishola, which was then duly executed by the parties and their witnesses. That though the said Agreement (Exhibit ‘A’) was made and executed in 1991, it was backdated to 1976, in accordance with the usual practice. The vendor, Mr. David Oluwole Ishola, did not put the Respondent into possession of the property on the ground that there were tenants in the house whom he had given notice to quit the property within three months. However, on expiration of the three months, David Oluwole Ishola started given excuses, and failed or refused to give vacant possession of the property to the Respondent. The Respondent in the circumstances, had no option that to approach the High Court claiming the reliefs as contained in paragraph 20(i)-(v) of the Further Amended Statement of Claim.

The case of the Appellant is that, the sum of One hundred and fourty-seven thousand naira (N147, 000.00) paid by the Respondent was a part payment of the actual price of the property demanded by David Oluwole Ishola. That the actual price for the property was Five hundred thousand naira (N500,000.00), but that the sum of one hundred and fourty-seven thousand naira (N147,000.00) was inserted in the sale Agreement so as to reduce the amount to be paid on application for a certificate of occupancy.
That it was when the Respondent failed to pay the balance, David Oluwole Ishola sold the property to another person (D.W.2) for the sum of five hundred thousand naira (N500,000.00). It was therefore contended by the Appellant that, the Respondent never took possession of the property as the original documents and the keys to the property were not given to him.
The Appellant also pleaded that, he would contend at the trial that by virtue of the provisions of the Land Use Act, a contract of sale of land is one that cannot be ordered to be specifically performed.

At the trial, the Respondent who was plaintiff at the trial court, called four witnesses and tendered some Exhibits marked as Exhibits A, A1, B, C, D and D1, E, F and F1 respectively. Exhibit A is a copy or subpoena on PW1, Exhibit A1 is the Sales Agreement dated 01/5/1976, Exhibit B is the purchase receipt, Exhibit C is a photocopy of the property survey while Exhibits D and D1 are photocopies of documents of title and property survey plan respectively. Exhibit E is a letter written to the Appellant by Chief Afe Babalola; SAN & Co, Solicitors of the Respondents. The Appellant as Defendant called three (3) witnesses who testified as DW1, DW2 and DW3 respectively. He also tendered a Building Plan, marked as Exhibit F2, A Sales Agreement between Alhaji Olowookere and David Ishola marked as Exhibits E and G. At the close of evidence, the learned trial Judge, M. L. Abimbola, J allowed the Plaintiff/Respondent’s claims when he held at page 13 of the judgment (page 161 of the records) lines 7 – 23 as follows:-

“The truth is that after the deceased defendant had collected the amount and executed the agreement there were tenants in the house and there was a collateral agreement that the tenants be given three months to vacate and the defendant to deliver up possession to the plaintiff. But along the line the deceased defendant resiled, may be for reasons of getting a bigger offer of N500, 000.00 and he jumped at it, sold it for the said price. He then made attempt to refund the purchase price to the plaintiff, he wanted to use force and did not succeed, the deceased defendant had failed to deliver up possession as he had sold to a third party. The DW2. In the defence he now relied on the provision of the Land Use Act on absence of consent. Having benefited from the agreement of sale by taking the proceeds he cannot be heard to plead absence of consent. Land Use Act does not disallow agreement of sale of one’s house or property without prior consent of the governors. An agreement is final and complete between parties on terms which must include the parties; the property, the consideration and the interest to be granted are defined. The contract would be enforceable by action if there is either a sufficient memorandum in writing as shown in Exhibit A1 or there is sufficient act of part performance on the part of either of parties as shown by the amount paid by plaintiff therefore the only admissible evidence of the contract of sale of the house is Exhibit A1.”

Having resolved as above, the learned trial judge conclude at pages 161 line 30 – 162 line 8 as follows:-

“In this action the defendant must plead vitiating element in Exhibit A1 and prove same. The defendant must plead a counter offer of N500, 000.00 having proved he accepted the sum of N147,000.00 as sale price. There was no such prove before me in this application.
For the above I have no hesitation in holden (sic) that the plaintiff had succeeded in proving an existing contract between him and the deceased defendant and therefore he is entitled to the declaration. It must be stated that having divested himself of his title in the property to the plaintiff by virtue of Exhibit A1, he has nothing more to sell and/or alienate unto DW2 vide Exhibit G prepared by DW1. The principle is nemo dat quod non habet.”

With that conclusion, the learned trial judge allowed the Plaintiff/Respondent’s case and granted all the reliefs sought by him. The Appellant is dissatisfied with the decision of the trial court and has therefore filed this appeal.

The original Notice of Appeal is dated and filed the 04/9/2006. However, by Motion on Notice dated the 03/3/2010 and filed the 31/3/2010, the Appellant was granted leave to file and argue additional grounds of appeal. The said leave was granted on the 27/10/2010, whereof the Appellant filed an Amended Notice of Appeal dated the 02/11/2010 and filed same date. The Grounds of appeal without their particulars are reproduced below:-

“1. The learned trial judge erred in law when he held that the Respondent was entitled to an order of specific performance.

2. The learned trial judge erred in law when he held that the Respondent was entitled to a declaration of title to the property.

3. The learned trial judge erred in law when he held that “it is hereby also declared that the title in the said property has passed to the plaintiff by virtue of the said agreement.

4. The learned trial judge erred in law when he held that; the plaintiff is entitled to an order of specific performance of an agreement for sale of the property situate, lying and being at Kajola Area, Monatan, Ibadan made between the plaintiff and the late David Oluwole Ishola dated 15th May, 1976. And having made payment which is an act of part payment the plaintiff is entitled to an order of specific performance on the said agreement which is the delivery of possession to the defendant.”

In compliance with the Rules of this Court, parties filed and exchanged briefs of arguments’. The Appellant’s Brief of Arguments was dated the 07/12/2010 and filed the same date. Therein, the Appellant nominated two issues for determination as follows:

“1. Whether title in the property has passed to the Plaintiff/Respondent by virtue of the agreement entered into between the Plaintiff and the Defendant/Appellant. (Grounds 2 and 3)

2. Whether in the circumstances of this case the purported contract of sale of land is one that can be ordered to be specifically performed (Grounds 1 and 4).”

The Respondent’s Brief of Arguments was dated the 06/1/2011 and filed the same date. Since the Respondent had no cause to disagree with the two issues as formulated by the Appellant, he adopted them as the issues germane for the determination of this appeal. This appeal shall therefore be determined on the issues as formulated by the Appellant, and adopted by the Respondent.

Now, on issue one (1), learned counsel for the appellant drew our attention to the testimony of PW1, PW2, PW3 and DW2 in respect of the contract agreement which was entered into in 1991, but backdated to 1976. He then contended that, the holding of the learned trial judge that title in the said property subject to the sale Agreement as evidenced by Exhibit 1, cannot be right. He accordingly submitted that the written agreement entered into between the Respondent and the Appellant’s father, was just a mere agreement to sell the property, not a conveyance, and could not therefore confer title on the Respondents as adjudged by the learned trial judge. According to learned counsel, the reason for the submission is that, the law does not allow any person to transfer, alienate or mortgage land to another person without a conveyance executed in his favour or entry into possession by the purchaser. The cases of Folarin v. Durojaiye (1988) 1 NWLR (pt.70) p.351 at pp.362 – 366, and Onafowokan v. Shopitan (2009) All FWLR (pt. 450) p. 685 at 704 – 705 were cited in support.

It was further submitted by learned counsel for the appellant that in the case of an agreement of sale of land, two stages are involved before title can pass to the buyer. That the first stage is the entering into a valid agreement while the second stage is the legal transfer of the land either by conveyance under seal or by consent of the Governor given after the first stage. The fact that only the first stage has been taken will not vest title in the purchaser, as at that stage, the sale is said to be inchoate. The cases of International ile Industries (Nig) Ltd v. Aderemi (1999) 8 NWLR (pt.614) p.268 at 293 – 294 and 298 – 299; and Atufe v. Oghomienor (2004) All FWLR (pt. 224) p. 2061 at 2078-2079 were also cited to submit that, in view of this position of the law, the purchaser cannot claim title to the property until the property is formally conveyed to him or consent for the transfer is given by the Governor. That, even if the agreement was entered into in 1976, it could not alone, without being in possession of the property, give any legal or equitable interest as the agreement was not registered as an instrument. It was therefore submitted that, the agreement in this case, is a mere receipt of money paid by the Respondent to the Appellant, which cannot in law, confer title, even if it was prepared in anticipation of obtaining Governor’s consent. The case of B.M.N.L. v. Ola Itemobola Ltd (2007) All FWLR (pt.379) p.1340 at 1364 and 1374 was further cited in support. He also cited the case of Emodi v. Agbu (2008) All FWLR (pt.421) p.975 at 981, to submit that, the fact remains that since the Appellant held only a customary title and that on entering into the contract of sale, it was the duty of the buyer to obtain the consent of the Governor to transfer title to him.

Learned Counsel for the appellant went on to submit that the agreement is caught by Sections 22 and 26 of the Land Use Act, 1978. That, the Land Use Act has abrogated all rights earlier vested in individuals to transfer or alienate or mortgage land without the consent of the Governor. He cited Sections 22 and 26 of the Land Use Act, and the cases of Savannah Bank (Nig.) Ltd v. Ajilo (2001) FWLR (pt.75) p.513 at 556, C.C.C.T. & C.S. Ltd v. Ekpo (2008) All FWLR (pt.418) p.198 at 222 and Awojugbagbe Light Industry Ltd v. Chinukwe (2004) All FWLR (pt.229) p.943 at 988, in support. That, the law does not ban oral or written agreement for the sale of land by one person to the other but forbids passing or conferring of title by one person to another without Governor’s consent. It was therefore submitted that, the mere entering into a contract of sale between the Appellant and the Respondent does not automatically pass title to the purchaser or entitle him to a declaration that title has been transferred to him. That the law does not give condition for obtaining consent on alienation or transfer of title; and therefore the view of the learned trial judge at page 161 of the record of appeal that, having benefited from the agreement of sale by taking the proceeds, the Appellant cannot be heard to plead absence of consent, cannot be right in the light of latest decisions of the Supreme Court on this point. The cases of U.B.N. Plc. v. Ayodare & Sons (Nig.) Ltd (2001) All FWLR (pt.383) p.1 at 33 and Pharmatek Ind. Projects Ltd v. Trade Bank (Nig.) Plc. (2009) All FWLR (pt.495) p.1678 at 1733 were further cited for emphasis. We were therefore urged to hold that title has not passed to the Respondent from the appellant based on the mere agreement between the parties.

Learned Counsel for the Respondent submitted that, reliance by the Appellant on the case of Folarin v. Durojaiye (1988) 1 NWLR (pt.70) p.351 without any regard for the peculiar facts and circumstances of this case, is not helpful to the Appellant’s case, in view of the observations of Oputa, JSC in Oladiran v. State (1986) 1 NWLR (pt. 14) p.75 at 92 paragraphs E-F and Pats-Acholnu, JCA (as he then was) in Sirpi Alusteel (Nig.) Ltd. v. Sing (Nig.) Ltd (2000) 2 NWLR (pt.644) p.229 at 240 paragraphs E-F. Learned Counsel then contended that the facts of Folarin v. Durojaiye (supra) are distinguishable from the facts of this case, because:-
“(i) In the Folarin case, the sate of land to the purchaser was without witnesses, there was no handing over of possession of the land, and there was no conveyance or any written document of any kind, such that the alleged sale transaction was without proof. The sale was also not referable to either sale under customary law or under the received English law,

(ii) There was no strict proof of payment of the purchase price to the owner family by their Attorney who sold to the predecessor-in-title of the purchaser,

(iii) The Attorney who sold to the Purchaser/Appellant’s Predecessor-in-title also joined the owner family in subsequent sale of the same land to the Respondent in that case,

(iv) The title of the Purchaser/Appellant’s predecessor-in-title was doubtful,

(v) The subsequent sale to the Respondent in that case was not during the pendency of any suit on the land; and

(vi) There was no indication that the predecessor-in-title of the Purchaser/Appellant took or even attempted to take possession and was prevented by the same person who sold to her.”

It was therefore contended by learned counsel for the Respondent that, in this case, PW2, PW3 and PW4 testified that there was a valid sale and payment of money. Furthermore, that Exhibit “B” is in evidence as proof of payment of the initial deposit of N130,000.00, while Exhibit A1, is the Sales Agreement prepared by PW1 on the instruction of the deceased original Defendant. He cited the cases of Provost, LACOED v. Eden (2004) 6 NWLR (pt.870) p.476 at 500 and 509 and Onayemi v. Idowu (2008) 9 NWLR (pt.1092) p.306 at 332 – 333 in support.

Learned Counsel for the Respondent went on to submit that, a holder of a right of occupancy may enter into an agreement or contract; with a view to alienating his right of occupancy; and that to enter into such agreement, he does not need the consent of the Governor. That he merely operates within the first stage of a transfer or sale of an estate in land which stage ends with the formation of a binding contract for a sale. That, it is only when he comes to embark on the next stage of alienating or transferring his right of occupancy, which is done by conveyance or deed, that he must obtain the consent of the Governor to make the transaction valid. He relied on the case of Owoniboys Tech. Services Ltd. v. U.B.N. Ltd (2003) 15 NWLR (pt.844) p.545 at 581 – 583, to submit that, the Land Use Act therefore, does not prohibit a written agreement to transfer or alienate land. That Exhibit “A1” titled “Agreement for Sale of Building”, only signifies the first stage of transfer of an interest in land for which consent of the Governor is not required and therefore there is no contravention of Section 22(1) of the Land Use Act by the mere fact that Exhibit “A1” was executed before it is forwarded to the Governor for his consent. The cases of Omozeghian v. Adjharho (2006) 4 NWLR (pt. 969) p. 33 at 66 and Ohiwerei v. Okosun (2003) 11 NWLR (pt. 832) p. 463 at 493 – 494 paragraphs E-A, were further cited in support.

It was further submitted by learned counsel for the Respondent that, it is inequitable, unjust and unconscionable for the Appellant to seek to vitiate the sale of the property in dispute to the Respondent, on the ground that there was no Governor’s consent, because:

“(i) The Appellant as the owner of a statutory right of occupancy, whether customary or statutory, actual or deemed, has the obligation to obtain the Governor’s consent,

(ii) That by the authority of Ohiwerei v. Okosun (supra) at p. 494 paragraphs A-D and B. Manfag (Nig.) Ltd v. M/S.O.I. Ltd (2001) 14 NWLR (pt. 1053) p. 109 at 153 paragraphs G-H, the Appellant failed in his duty and therefore cannot rely on his wrongful act to avoid the agreement; and

(iii) The transaction is still at the contracting stage for which the Governor’s consent is not needed.”

It is further argued by learned counsel for the Respondent that, it is not good for the Appellant to argue that since the Respondent did not have possession of the property in dispute, he cannot be said to have title, because, it was the Appellant who failed to deliver possession to the Respondent after he had received the purchase price; and delivered all title documents to the Respondent. The case of Amadi v. Nsirim (2004) 17 NWLR (pt. 901) p. 111 at 123 – 124 paragraphs F-A, was cited to submit that, were a vendor, such as the Appellant surrenders title documents to the buyer in consideration of payment of purchase price prior to the registration of a formal deed of assignment, an equitable interest is already vested in the purchaser. We were accordingly urged to resolve this issue in favour of the Respondent.

Before I proceed to determine this appeal, I find it pertinent to pronounce on the nature of title of the Appellant to the land in dispute before the transaction between the parties. This is in view of the contention of the learned counsel for the Appellant at page 7 lines 15 – 18 of the Appellant’s Brief of Arguments. Therein learned counsel had contended that, the fact remains that since the Appellant held only a customary title, on entering into the contract of sale, it was the duty of the buyer to obtain the consent of the Governor to transfer title to him. He relied on Emodi v. Agbu (2008) All FWLR (pt. 421) p.975 at 981.

Learned Counsel for the Respondent had contended that, it is not clear to him how the learned counsel for the appellant arrived at the conclusion that the Appellant had a customary title. He therefore submitted that, since the land in dispute is in Kajola Area, Monatan, Ibadan, it could be safely assumed, in the absence of any evidence to the contrary, that it is in an urban area. The fact that the Appellant did not have a registered title, like a certificate of occupancy is not enough to conclude that the Appellant had a customary title. That this fact is admitted by the Appellant when he seeks to vitiate the sale to the Respondent on the ground that there was no Governor’s consent to the transaction. It was therefore submitted by the Respondent that, as the land is in an urban area of Ibadan, and as there is no actual grant by the State Governor, there can only be a deemed grant of statutory right of occupancy.

In the instant case, it is evident that David Oluwole Ishola, the Appellant’s father had not been issued with a statutory certificate of occupancy nor a customary certificate of occupancy. Since there is no contrary evidence, it is also safe to presume that he was in occupation or possession of the land before 1978, when the Land Use Act, was promulgated or at least his predecessor in title. It is also not in dispute that the land in dispute, being situate in Ibadan, is a land situate and lying in an Urban Area. The land had also been developed as the subject of dispute is not an empty or bare land, but buildings consisting of four flats of three (3) bedrooms each. Section 34(1) and (2) of the Land Use Act, 1978 stipulates that:-
“34(1). The following provisions of this section shall have effect in respect of land in an urban area vested in any person immediately before the commencement of this Act.
(2). Where the land is developed the land shall continue to be held by the person in whom it was vested immediately before the commencement of this Act as if the holder was the holder of a statutory right of occupancy issued by the Governor under this Act.”
It would be seen therefore that, by the provisions of Section 34(1) and (2) of the Land use Act (hereinafter in this judgment referred to as the Act) deems the holder of developed land immediately before the commencement of the Act to be the holder of such land by way of a statutory right of occupancy. Thus, in Adole v. Giwa (2008) 11 NWLR (pt.1099) p.562, it was held that Section 34 of the Land Use Act, recognizes the title of persons who were on the land before 1978 when the Act was promulgated. That, if the land was developed land in an urban area, the holders thereof are deemed holders of statutory rights of occupancy issued by the Governor by virtue of Section 34(2) and (3) of the Act. Such statutory holding or occupancy of the person over the land therefore comes into effect automatically by operation of law. Similarly in C.S.S. Bookshops Ltd. v. R.T.M.C.R.S. (2006) 11 NWLR (PT. 992) p.530, the Supreme Court held that by virtue of Section 34(1), (2) of the Act, developed land situate in the Port Harcourt Urban Area, was vested in the occupier immediately before the commencement of the Act, and that such occupier shall continue to hold same as if they were holders of statutory right of occupancy issued by the Governor.

It therefore goes without saying, that from the facts of this case, and the law applicable thereto the Appellant was deemed to be vested with title to those properties as the holder of a statutory right of occupancy issued by the Oyo State Governor. The fact that he evaded or rather avoided obtaining a statutory certificate of occupancy would not derogate from that fact. By the authorities therefore, which I shall refer to later, it is settled law that, it was his responsibility as the seller or vendor of the land to apply for the consent of the Governor so as to sell the land under the Act.
Learned Counsel for the Appellant misapplied the decision in Emodi v. Agbu (supra). A careful reading of the portion of the judgment learned counsel referred to, will show that, the court held therein that, since what the seller or vendor of the land in that case held was a customary title, it was the duty of the buyer who wanted the customary title to be converted to a statutory right of occupancy, the buyer then had the duty or responsibility to apply for the consent of the Governor for the conversion.
Indeed, the court held clearly that, if the seller had a certificate of occupancy in respect of the land, which he intended to dispose of, the duty was his own and not of the buyer to seek for and obtain the Governor’s consent in order for the transfer of the land to be properly made to the purchaser. In all I have said above, it is my conclusion that the Appellant’s father had a deemed statutory right of occupancy over the land in dispute by virtue of Section 34(1) and (2) of the Land Use Act, 1978.

Now, the crucial issue to be determined at this stage, is whether in view of the transaction between the parties as evidenced by Exhibit “A1”, title in the said property in dispute had passed to the Respondent from the Appellant. Learned Counsel for the Appellant is of the view that, the Written Agreement (Ext. “A1”) entered into between the parties was just a mere agreement to sell property and not a conveyance which would confer title on the Respondent as adjudged by the learned trial judge. His reason for the submission is that, the law does not allow any person to transfer, alienate or mortgage land to another person without a conveyance duly executed in his favour or entry into possession by the purchaser. Learned Counsel for the Respondent distinguished the facts of Folarin v. Durojaiye (supra) relied on by the Appellant, and submitted that, Exhibit “A1” was prepared on the instruction of the deceased original vendor and was therefore sufficient to transfer title for the Respondent.

The pleadings and evidence in this case show undisputedly that, there was an agreement between David Oluwole Ishola (Appellant’s predecessor) and the Respondent for the sale of a storey Building consisting of four flats of three (3) bedrooms each with sitting amenities and other conveniences situate, lying and being at Kajola Area, Monatan, Ibadan. Perhaps recourse to the pleadings and evidence led therein by the parties at the trial will put issues into proper perspective. The Respondent as plaintiff had pleaded at paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 of the Further Amended Statement of Claim as follows:

“3. Sometime in 1990, the plaintiff got in touch with an Estate Agent with a new to buying a property.

4. The Estate Agent indicated that the Defendant had a house at Kajola Area, Monatan, Ibadan, which he had for about two years been looking for a buyer and that the said building is to be sold for N130,000.00.

5. The Plaintiff thereafter inspected the building in company of the Estate Agent and signified his intention to purchase the said building for N130,000.00.

6. The Plaintiff in company of the Estate Agent later met Mr. Osin who was acting for the Late David Oluwole Ishola and offered the said N130,000.00 in the presence of the Agent, the Defendant and Mr. Osin.

7. The Late David Oluwole Ishola at the said meeting changed his mind and said he would not sell the house for N130,000.00 and that he would only be prepared to sell for N147,000.00.

8. The Plaintiff agreed and handed over the said N130,000.00 to the Late David Oluwole Ishola’s Agent, Mr. Osin, with a promise to bring the balance of N17,000.00.

9. The Late David Oluwole Ishola’s Agent, Mr. Osin later signed for the N130,000.00 given to him in the presence of the Defendant. Plaintiff will rely on the said note signed by Mr. Osin.

10. The Plaintiff in Company of the Estate Agent went back to the Late David Oluwole Ishola the following day with the balance of N17,000.00 which the Defendant accepted.

11. The Late David Oluwole Ishola immediately after receiving the balance handed over the original survey and building plan No. 37/LA/C/7174 dated 31st July, 1984 and a photocopy of the Agreement with which the Defendant bought the land. The Plaintiff will rely on all these documents at the trial.

12. The Late David Oluwole Ishola told the Plaintiff that he had no certificate of occupancy in the property since he had no intention to borrow money from any bank.

13. The Late David Oluwole Ishola also promised to get in touch with his lawyer who will prepare the Agreement.

14. About a week later, the Defendant brought an Agreement dated 15th May, 1976 and both Plaintiff and the Late David Oluwole Ishola signed the said Agreement and witnessed by their witnesses. Plaintiff will rely on the said Agreement.

15. The Plaintiff immediately after signing the Agreement asked for the keys to the house but the Late David Oluwole Ishola gave an excuse that the tenants occupying the house still had some months to stay there and that the keys will be handed over after the said three months.”

Paragraphs 16, 17, 18 and 19 of the statement of claim further show clearly that Respondent was never put into or took up possession of the property in dispute, subject of the agreement between him and the Appellant as evidenced by Exhibit A1.

The Appellant on the other hand had pleaded clearly in paragraphs 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 of the Amended Statement of Defence as follows:-

“6. With regards to paragraphs 15 and 16 of the Further Amended Statement of Claim, the defendant states that the said man never completed payment of the agreed price of N500,000.00 to the Late David Oluwole Ishola and therefore the issue of collection of keys could not have arisen with the said man or anybody whatsoever.

7. Sometimes the Late David Oluwole Ishola entered into negotiation with one man (whose name the Late David Oluwole Ishola did not recollect) for the purchase of his property at Monatan, Iwo Road, Ibadan.

8. The Late David Oluwole Ishola agreed to sell his said house for N500,000.00 which the said man agreed to pay.

9. The said man later presented to the Late David Oluwole Ishola an agreement dated 15th May, 1976 in respect of the transaction.

10. When the Late David Oluwole Ishola queried the sum of N147,000.00 entered in the agreement as the cost price of the land, the man stated that, that was the down payment he wanted to first make and that the balance would be paid subsequently.

11. The man further added that in any case he would not want the agreement to reflect the agreed price of N500,000.00 so as to cut down on the fees payable to government for consent.

12. After waiting for a long time for the said man to pay the balance and he failed to, the Late David Oluwole Ishola sold his property to another purchaser.

13. When the man eventually showed up, the Late David Oluwole Ishola told him that he had disposed of the property to another purchaser in view of the failure of the said man to pay up the agreed balance.

14. The Late David Oluwole Ishola then offered to return the deposit of N147,000.00 to the man but the man declined.

15. When the Plaintiff met the Late David Oluwole Ishola, the Late David Oluwole Ishola told him about the balance which the said man had failed to pay as a result of which the late David Oluwole Ishola had to sell the property to another purchaser.

16. The Plaintiff also refused to collect the N147, 000.00 paid by the man when the same was offered to him by the Late David Oluwole Ishola.”

It would be seen from the averments of the Appellant in the Amended Statement of Defence reproduced above that, the Appellant, save for paragraph 15, never made reference to the Respondent. He kept on saying “the man” or “one man”. That notwithstanding, the learned trial judge had found and held that, the person the Appellant refers to as “one man” or “the said man”, is the Plaintiff/Appellant. From the above state of the pleadings of the parties and evidence led therein, the learned trial judge held at page 9 (page 157 of the records) of the judgment as follows:

“From the totality of the averments in the respective pleadings of the parties and having regard to the evidence called in support and documents tendered and having calmly gone through the submissions of the learned counsel, I am of the view that the issue that calls for resolution in this matter is very simple and straight forward as there was no complete averment nor evidence called…. it is whether the deceased defendant Mr. David Oluwole Ishola did enter an agreement of sale of his four flats of 3 bedrooms each at Monatan to the Plaintiff and whether the agreement for sale was for the sum of N147,000.00 as claimed by the Plaintiff or N500,000.00 as claimed by defendant…?”

Before evaluating the evidence and resolving same, the learned trial judge found at page 157 line 28 – page 158 line 3 that, there are some areas in the suit which are common to both parties. That, there is no dispute that the original seller or vendor; David Oluwole Ishola, had a house at Kajola Area, Monatan, Ibadan which he exhibited an intention to sell. Furthermore that from the respective pleadings of the parties and evidence, there is no serious factual dispute as to whether late David Oluwole Ishola had an agreement with the Plaintiff/Respondent to sell the house in question. He however held at page 158 line 13 – 159 line 18, which I endeavor to reproduce, as follows:

“I have examined the pleadings, how consistent therein in respect of each of the parties. I have also examined the evidence of the Plaintiff’s witness No.1, PW2, PW3 and PW4 and the documents tendered, i.e., the evidence of PW1, a legal practitioner, he stated that the defendant instructed him to prepare Exhibit A1, agreement for sale of building in 1991 but this was backdated to 1997 (sic) as it is the practice. PW2 a retired banker narrated how the deceased defendant approached him in respect of the sale of his property and how he eventually arranged a meeting with estate agent involving a Segun Adeogun, and the PW4 including PW3 the plaintiff’s brother and how an initial payment of N130,000.00 agreed upon was varied to N147,000.00 and how the N130,000.00 was initially paid and the balance later paid. He tendered Exhibit B as receipt he gave for the payment. He stated how the defendant later collected the amount of N147, 000.00, by his averment the defendant never denied taking this amount. Therefore, I find the evidence of the Plaintiff as to payment of this amount uncontroverted and admitted too. I have placed the Plaintiff’s version on an imaginary scale and weighed the evidence of DW1 Mr. Fatai Bello, his evidence has no correlation with the issue in contention but rather his evidence is to the effect that the defendant sold the house to one Mr. Olowookere and he prepared the sale agreement. DW2 was Mr. Olowookere; he testified that he bought the house from the defendant and DW3 is the estate manager/legal practitioner who manages the property for DW2. The totality of the evidence of the defence is no rebuttal evidence nor have in any manner cast any improbability on the assertion of the Plaintiff. The totality of the defence by the evidence called is that the defendant sold the properly to DW2 and the DW3 now manages the properly. There was no evidence called by the defence to establish the request of N500,000.00 from the Plaintiff as averred in the amended statement of defence. There is no evidence of refund of the amount of N147,000.00 which was admitted collected as part payment or refusal to take same. Having weighted (sic) both versions I feel swayed to agree with the contention of the Plaintiff. I find the evidence of PW1 Mr. Layi Adebanwo as to his being instructed by the defendant to prepare Exhibit A1. In that document of sale the purchase price is stated as N147, 000.00. Mr. Adebanwo never gave evidence that the sale price was above this amount as to his instructions. There is no denial at all that David Oluwole Ishola signed the agreement… Let it be stated that since there is no evidence in support of the averment that the sum of N147,000.00 was inserted on the request of the Plaintiff for reasons stated above and thus the averments is (sic) deemed abandoned.”

The learned trial judge also found and indeed held that, the averment of the Appellant that the purchase price was N500, 000.00 is not borne out nor supported by the evidence. He accordingly, had no hesitation in holding that the deceased, David Oluwole Ishola, did agree to sell his house at Monatan, Ibadan to the Plaintiff for the sum of N147, 000.00 in 1991 and that the issue of backdating did not affect the validity of the agreement as established before him. The learned trial judge then concluded at page 160 lines 8 – 14 as follows:

“The further reason that made me to believe the story of the existence of a valid contract of sale between Late Ishola and the Plaintiff is about Exhibit F2, the building plan, the question is how did the building plan of the disputed property got (sic) to the plaintiff. The explanation by the defendant on this is that he had copies of the title document still in the possession of the present defendant; no explanation was given about why the Plaintiff has possession of those documents. The deposit of the document with the Plaintiff makes the story of the Plaintiff more plausible.”

On the whole therefore, the learned trial judge found as proved that, the deceased defendant agreed to sell his house to the Respondent for a sum of N147, 000.00, which amount was paid by two installments. That the sale Agreement is evidenced by Exhibit A1, which clearly show David Oluwole Ishola as the vendor and Bashiru Akanfe Oluwalogbon as the purchaser of that storey building consisting of four flats of three (3) bedrooms each at Kajola Area, Monatan, Ibadan.

I have carefully read and reflected on the pleadings of the parties and the evidence read thereon as revealed on the printed records. Upon a careful consideration, I am of the view that the findings and conclusion of the learned trial judge are the issue of whether or not there was a sale agreement between the Appellants and the Respondent, is amply supported by the evidence. The duty to evaluate the evidence before him and ascribe probative value thereto was on the trial court.

The law empowers this court to interfere with the evaluation of evidence and findings of facts made by the trial court, only where the trial court failed to evaluate such evidence; or where he wrongly applied the wrong principle of law to the facts adduced before him; or where he reached a conclusion which had occasioned a miscarriage of justice. The onus is on the Appellant to convince this court to interfere with the findings of the trial court, by demonstrating before us how it should be so done. See Ogunleye v. Oni (1990) 2 NWLR (pt.195) p.745; Ejabulor v. Oska (1990) 5 NWLR (pt.148) p.1; Ebolor v. Osayande (1992) NWLR (pt.249) p.524; Anyanwu v. Mbara (1992) NWLR (pt.242) p.386; Fagbenro v. Arobadi (2006) NWLR (pt. 978) p.172; Oko v. Ntukidem (1993) 2 NWLR (pt.274) p.124 and Onyekwelu v. Elf Petroleum (Nig.) Ltd. (2009) 2-3 S.C. Accordingly, I am in total agreement with the findings and conclusions of the learned trial judge that the Respondent proved the existence of a Sales Agreement between him and the predecessor of the Appellant on record, as evidenced by Exhibit A1.

The issue to be determined or considered next is whether, the said Agreement Exhibit “A1” is capable of conferring or conveying legal to the land in dispute on the Respondent. On this, though the learned trial judge did not clearly state that Exhibit “A1” is capable of transferring title to the land in dispute on the Respondent, he held at page 161 lines 18 – 25 as follows:

“An agreement is final and complete between parties on terms which must include the parties, the property, the consideration and the interests to be granted are defined. The contract would be enforceable by action if there is either a sufficient memorandum in writing as shown in Exhibit “A” or there is sufficient act of part performance on the part of either parties as shown by the amount paid by plaintiff therefore the only admissible evidence of the contract of sale of the house is Exhibit A1. See Section 132 Evidence Act and the case of Arjay Limited & Ors v. Airline Management Support Ltd (2003) 2-3 S.C. p.1 at 16.”

The learned trial judge then found at, page 162 lines 3 – 7 that the Plaintiff/Respondent had proved the existence of a contract between him and the deceased defendant and therefore he is entitled to the declaration; and that having divested himself of his title in the property by virtue of Exhibit A1, on the principle of nemo dat quod non habet, the Appellant’s predecessor in title had nothing more to sell or alienate to the Respondent.

Now, it has been found that, the Respondent was able to prove the existence of an agreement for the sale of the land in dispute between him and the Appellant’s predecessor. The issue now is, whether the said Sale Agreement was capable of divesting the said Appellant’s predecessor of his title to the land and vesting same on the Respondent. In other words, what is the status of Exhibit A1? The law is that, a purchase receipt is evidence that there was an agreement for sale of land, and that the consideration for sale was paid by the purchaser.

Equally, a purchase of land can be proved by an agreement of sale or by any fact that shows that such a transaction did take place; such as transfer of documents of title.
See Adepate v. Babatunde (2002) 4 NWLR (pt. 756) p. 99 and Aminu v. Ogunyabi (2004) 1 NWLR (pt. 882) p. 457. In the instant case, consequent upon the execution of Exhibit “A1”, the evidence on record shows that the Appellant’s predecessor transferred to the Respondent certain documents relating to the land in dispute. In the instant case, Exhibit “A1” titled “AGREEMENT FOR SALE OF BUILDING” means just what it is, an agreement for the sale of certain property mentioned in the document. It is a document evidencing that that was a sale transaction between the Appellant’s predecessor and the Respondent.
It is not a deed of conveyance of the land to the Respondent. The property, as evidence on record shows, was not transferred to the Respondent by the Exhibit nor was the Respondent put into possession.

Now, a brief analysis of the cases cited by the Appellant would be helpful. In Folarin v. Durojaiye (supra) cited by learned counsel, the substantive issue to be determined was whether, the Appellant’s alleged vendor had a valid title in the plot of land in dispute which she could validly transfer to the appellant. The Appellant in that case, claimed and was so found by the trial court that, one Alhaji Karimu Olasupo Giwa acting as agent of the Olowuyewuye family under a power of attorney, sold the land in dispute to one Ramota Adeoye, whose father paid the purchase price.
However, it was found that there were no witnesses to the sale, no handing over of possession of the land in dispute to Ramota Adeoye and there was no conveyance of the land executed in favour of Ramota subsequently, the Appellant bought the land in dispute from Ramota through Alhaji Giwa and obtained a conveyance executed in his favour by Ramota Adeoye. Later, the Olowuyewuye family revoked the power of attorney given to Alhaji Giwa and sold the same land to the Respondent.
They also executed a deed of conveyance in his favour and put him in possession of the land. The trial court held that, the evidence of Alhaji Giwa coupled with the execution of the conveyance by Ramota transmitted equitable interest of Ramota into a legal interest which she could transfer to the Appellant. That decision was set aside by this court and affirmed by the Supreme Court.

Based on the scenario pointed above, the Supreme Court held that, in order to transfer legal title under English law, by purchase, there must be a valid sale, payment of purchase price accompanied by acknowledgement of receipt and execution of a deed of conveyance in favour of the purchaser. That where money is paid and receipts issued but no conveyance is executed, the purchaser can only have an equitable interest; if he goes into possession. The dictum of Obaseki, JSC relied by the learned Appellant’s counsel in this case, envisages two factual situations; conveyance executed in favour of the purchaser, which will cloth him with legal title, or entry into possession which will convey an equitable title or interest.

In the case of Onafowokan v. Shopitan (supra), the Appellant’s claim in the case was predicated upon documents of title, which consisted of a survey Plan, receipt and certificate of grant. There was no conveyance executed in favour of the purchaser and he was unable to proof the origin of title of his vendors. He was also unable to prove his case either through customary law or under the common law. It was therefore held that there are two ways in which land is properly sold and title validly transferred following a sale under the Nigerian Legal system i.e. though customary law or received English law.

It was however held per Salami, JCA (as he then was) in the case of Chiroma v. Suwa (1986) 1 NWLR (pt.19) p.751 that, a person who purchased a parcel of land and paid for it without obtaining a deed of conveyance has an equitable interest in the land. See also Osagie v. Oyeyinka & Anor (1987) 3 NWLR (pt.59) p.144. In the instant case, it has been proved that there was indeed a transaction for sale of certain property between the Respondent and the predecessor of the Appellant.
There was however no Deed of Conveyance executed in favour of the Respondent. He was not put into possession of the property either. From the authorities cited above, it is my view that, he had acquired only an equitable interest in the land for which he can enforce by action.

The Appellant has however contended that, though it is possible for an agreement for sale of land to be entered into between the parties, but title to the land or property cannot pass to the Respondent without the Governor’s consent. In other words, that the agreement Exhibit “A1” is caught by Sections 22 and 26 of the Land Use Act, 1978 (the Act). The reaction of the Respondent is that, a holder of a right of occupancy may enter in an agreement or contract, with a view to alienating his right of occupancy, and that to enter into such an agreement, does not need the consent of the Governor. That the Land Use Act does not prohibit a written agreement to transfer or alienate land; and that Exhibit “A1” merely signifies the first stage of transfer of an interest in land for which there is no requirement for obtaining Governor’s consent.

To effectively resolve the issue, I shall refer to decided cases on the issue so as to see the attitude of this court and of the Supreme Court on the vexed and nightmarish question of obtaining consent. Before doing so, I propose to reproduce the relevant portions of Sections 22 and 26 of the Act, as are relevant on the issue under consideration. Thus, those Sections of the Act stipulate that:

“22(1). It shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise howsoever without the consent of the Governor first had and obtained.

(2) The Governor when giving his consent to an assignment, mortgage or sublease may require the holder of a statutory right of occupancy to submit an instrument executed in evidence of the assignment, mortgage or sublease and the holder shall when so required deliver the said instrument to the Governor in order that the consent given by the Governor under subsection (1) of this Section may be signified by endorsement thereon.

26. Any transaction or any instrument which purports to confer on or vest in any person any interest or right over land other than in accordance with the provisions of this Act shall be null and void.”

In the case of International ile Industries (Nig.) Ltd v. Aderemi (1999) 8 NWLR (pt.614) p.268, the defendant agreed to grant sublease for a term of ten years to the plaintiff but before a formal deed could be executed, the defendant assigned the lease to a third party. In an action for specific performance of the contract, the third party raised the issue that the agreement for a lease was void for want of Governor’s consent. In resolving the issue, the Supreme Court held that, it must not be presumed that Section 22 of the Act can operate to do away with the doctrine of part performance, lest it be used as an instrument of fraud. The Supreme Court thus held that, under a transaction for sale of land, the first stage is the agreement or contract stage, which does not require the consent of the Governor under Section 22 of the Act; and that when parties enter into a contract for the sale of land, no alienation has taken place as envisaged by Section 22 of the Act. Thus, Uwaifo, JSC stated at page 298 paragraphs F – G of the Report as follows:
“The position of Section 22 of the Act is clearly this: A holder of a right of occupancy may enter into an agreement or contract with a view to alienating his said right of occupancy. To enter into such an agreement or contract, he does not need the consent of the Governor. He merely operates within the first stage of a “transfer on sale of an estate in land” which stage ends with the formation of a binding contract for a sale constituting an estate contract at best. But when he comes to embark on the next stage of alienating or transferring his right of occupancy which is done by a conveyance or deed, culminating in vesting the said right in the “purchaser”, he must obtain the consent of the Governor to make the transaction valid. If he fails to, then the transaction is null and void under section 26 of the Act. In my view, it is necessary to bear these two stages clearly in mind.”
In arriving at this conclusion, the learned Law Lord of the Supreme Court, referred to the dictum of Iguh, JSC in Awojugbagbe Light Industries Ltd v. Chinuke (1995) 4 NWLR (pt. 390) p. 379 at 435-436, where His lordship shed more light on the issue in these words:
“I think it ought to be stressed that the holder of a statutory right of occupancy is certainly not prohibited by Section 22(1) of the Act, from entering into some form of negotiation which may end with a written agreement for presentation to the Governor for his necessary consent or approval. This is because, the Land Use Act does not prohibit a written agreement to transfer or alienate land. So long as such written agreement is understood and entered into subject to the consent of the Governor, there will be no contravention of Section 22(1) of the Land Use Act by the mere fact that such a written agreement is executed before it is forwarded to the Governor for his consent. I agree entirely with Chief Williams, SAN that section 22(1) prohibits transactions or instruments whereby the holder purports to alienate as a completed action, his right of occupancy by assignment, mortgage, transfer of possession, sublease or otherwise, the absence of the relevant consent of the Governor first had and obtained notwithstanding.

In the case of Iragunima v. Rivers State Housing & Property Development Authority (2003) 12 NWLR (pt. 834) p. 427, a 60 year term of lease was granted the plaintiff’s assignor through a letter. The grantee/assignor paid all that was required of him in order for the authority to execute a deed of assignment in his favour but such deed was not executed. The grantee assigned his equitable interest to the Plaintiff, and applied for consent and paid all the necessary fees, and submitted the deed of assignment for consent to be endorsed on it, but again the Governor failed to signify his consent. The Defendant Authority then sold the property to a third party. The Plaintiff successfully sued for a declaration that she was the rightful owner of the property. In deciding the case on appeal before it, the Supreme Court held per Ogundare, JSC at pages 440 – 441 of the report that:-

“Equity regards that as done which ought to have been done…. I think it is a misconception to argue that as the prior consent of the Governor was not sought, nor obtained, before the deed of assignment was executed, the assignment was null and void. That cannot be correct.
In practice, it is on the deed of assignment that the Governor’s consent is usually endorsed. The fact that consent was never obtained would not derogate from the equitable title that the assignor passed to the Plaintiff.”

Similarly in Owoniboys Tech. Services Ltd v. U.B.N. (Nig.) Ltd (2003) 15 NWLR (pt.844) p.545 at 581 – 582 the Supreme Court considered Section 22(1) of the Act and applied same to the facts. In that case, the Appellant applied for a secured loan of N50,000.00 and used its property at Oya Iya, Taiwo Road, Ilorin as collateral. A deed of mortgage was executed for that purpose with Governor’s consent. The loan was later increased twice and deeds of mortgage executed to reflect the new amount and duly stamped. There was failure of repayment by the Appellant of the facilities granted. In an action before the trial court, the Appellant had contended inter alia that, the Governor’s consent was not obtained for the 2nd and 3rd transactions and therefore, they were null and void. The Appellant’s claim was granted at the trial court but reversed on appeal at the Court of Appeal. In affirming the decision of the Court of Appeal, the Supreme Court relied on the principles enunciated in International iles Ind. Ltd v. Aderemi (supra), and reiterated that, a holder of a right of occupancy may enter into an agreement or contract, with a view to alienating his said right of occupancy. That to enter such agreement does not require the Governor’s consent, but when he embarks on the next stage of alienating or transferring his right of occupancy which is done by a conveyance or deed, which culminates in vesting the said right on the purchaser, he must obtain the consent of the Governor to make the transaction valid, and if he fails to do so the transaction will be null and void under section 26 of the Act. See also Ohiwerei v. Okosun (2003) 11 NWLR (pt.832) p.463; B.M.N.L. v. Ola Ilemobola Ltd (supra) 1362 – 1363 paragraphs F-A and 1364 paragraphs. A.G.B. Manfag (Nig.) Ltd v. M/S.O.I. Ltd (2007) 14 NWLR (pt.1053) P.109; Olalomi Ind. V. N.I.O.B. Ltd (2009) 16 NWLR (pt.1167) P.266 and U.B.N. Plc v. ASTRA Builders (W.A.) Ltd (2070) 5 NWLR (Pt.1186) P.1.

I conclude on this issue with the case of C.C.C.T & C.S. Ltd v. Ekpo (2008) 6 NWLR (pt. 1083) p. 362. Here the Plaintiff was employed in the services of the defendant company. He was alleged to have defrauded his employer of the sum of N80, 000.00. When arrested, he signed a deed of conveyance transferring his house to the defendant (his employer) so as to escape prosecution. However, about 8 years later, he instituted an action against the employer seeking that the conveyance be declared invalid for want of consent by the Governor. On appeal, the Supreme Court upheld his claim. Onnoghen, JSC stated as follows:

“The consequence of unlawful act of alienating a right of occupancy without the requisite consent of the Governor is what is stated under Section 26 …. It makes the transaction such as Exhibit A, expressly null and void. The provision… is clear and unambiguous and therefore calls for no interpretation – it says that an alienation made contrary to the provision of the Act “shall be null and void” which…. Means “null and void” for all purposes under the sun.”

In his own words, I. T. Mohammad, JSC said that:
“Whether there was coercion or not, the law under Section 22(2) of the Land use Act recognizes cases where some form of written agreement executed in evidence of a transaction is submitted to the Governor in order to obtain consent as required by the section. In view of the fact that Exhibit A was evidence of a completed action, Section 22 cannot save the situation as there is nothing of record to show that the Exhibit was made subject to the consent of the Governor. Certainly, for a transaction of this nature to be valid, the parties to it must first enter into a binding agreement to alienate subject to the consent of the Governor. It is that consent that vests a valid title on the purchaser.”
See also Savannah Bank Plc. v. Ibrahim (2000) 6 NWLR (pt. 662) p. 585 at 599 per R.D. Muhammed, JCA and Ilemobola Co. Ltd. v. Governor, Kaduna State (2000) 7 NWLR (pt. 666) p. 633 at 647 per Salami, JCA (as he then was).
It is now settled on the authorities cited above, that the provision of Section 22(1) of the Act is mandatory and makes obtaining of the Governor’s consent a pre-condition for the validity of any alienation of a right of occupancy under the Land Use Act, 1978. This is so because, it is a long standing principle of law that, were a statute requires ministerial approval for the sale of property, approval to enter into a contract for the sale of that property is not prohibited. What is required is approval to complete the sale; otherwise, the sale will be in valid. That is why Salami, JCA (as he then was) held in the case of Lawson v. Afani Const. Co. Ltd (2002) 2 NWLR (pt.752) p.585, that the Act has provided procedure for acquiring land or title to land under it, and that any acquisition which is inconsistent with the provision of the Act will not be protected by the Act, and the court will not allow departure from the prescribed procedure.

It is also clear from the decided cases that, transaction for sale of an estate in land or right in land is divisible into two. The first stage consists of some form of negotiation which may end with a written agreement for presentation to the Governor, as required by virtue of Section 22(2) of the Act, for the necessary consent of the Governor. The second stage is when the seller or vendor embarks upon the proper or actual process of alienating or transferring his right of occupancy which is done by conveyance or deed, culminating in the vesting of the said right in the purchaser. What Section 22(1) of the Act prohibits is a transaction or instrument whereby the holder of a statutory right of occupancy alienates or purports to alienate as a completed action, his right of occupancy by assignment, mortgage, transfer of possession, sublease or otherwise, without the consent of the Governor having been first had and obtained.

In the instant case, it has been established that the Respondent was never put into possession of the property in dispute. I have also been determined that Exhibit “A1” titled “Agreement for Sale of Building” is not a conveyance or a deed which conveyed title in the property to the Respondent. It merely reduced into writing the transaction for the sale of land between the parties. It has not been contended that the said Exhibit was a completed action, Indeed, the Appellant himself admitted this when his learned counsel said at page 9 paragraph 4.15 of the Appellant’s Brief of Arguments as follows:-

“We submit that the law does not ban oral or written agreement for the sale of land by one person to the other but forbids passing or conferring of title by one person to the other without Governor’s consent. In this case the mere entering into a contract of sale between the Appellant and the Respondent does not automatically pass title to the purchaser or entitle him to a declaration that title has been transferred to him.”

In the same vein, learned counsel for the Respondent had submitted at page 12 paragraphs 4.11 – 4.12 of the Respondent’s Brief of Arguments that:-

“Exhibit “A1” is, as headed, Agreement for sale of Building. It only signifies the first stage of transfer of an interest in land for which there is no requirement for obtaining Governor’s consent.
We submit that there is no contravention by the mere fact that such a written agreement as Exhibit “A1″ is executed before it is forwarded to the Governor of his (sic) consent.”

It is apparent therefore that counsel are agreed that Exhibit “A1” was a mere agreement between the parties and also signified in a written form, the first stage of the transaction for the sale of the property between the parties. Such an agreement has been described as inchoate or at best held in escrow pending when the consent of the Governor is obtained. Thus, it was held in the case of Brossette Manufacturing Nig. Ltd. v. M/S Ola Ilemobola Ltd (2007) 14 NWLR (pt.1053) p.109 at 147 that, a document may be delivered to take effect on the happening of a specified event, or upon condition that it is not to be operative until some condition is performed, then pending the happening of the event or the performance of the condition, the instrument is called an escrow. That, until the specified time has arrived or the condition has been performed, the instrument is not a deed. See also Awojugbagbe Light Ind. Ltd. v. Chinukwe (supra) at p. 438. It means therefore that, the requirement of consent under Section 22(1) of the Act makes any transaction or instrument which purports to confer on or vest in any person any interest or right over land, other than in accordance with the provisions of the Act, null and void. It also means that, such an agreement pending consent cannot transfer title in land. See Savannah Bank Ltd. v. Ajilo (supra) and Olalomi Ind. Ltd v. N.I.D.B. Ltd. (supra).
From the fore-going, it is now settled that, the legal consequence of an agreement prepared in anticipation of obtaining Governor’s consent is that, such agreement is inchoate or at best a mere escrow till Governor’s consent is obtained. The logical and legal consequence is that, in such an agreement, no interest in the land is passed under the agreement, till the consent of the Governor is obtained. In the instant case, the answer to issue one is that, the “Agreement for Sale of Property” Exhibit “A1′, did not transfer title in the land in dispute to the Respondent since the law regards it as being either inchoate or escrow till consent of the Governor is sought by the Appellant to transfer his title in the property in dispute to the Respondent. In other words, the answer to issue one is that, title in the property in dispute has not passed or did not pass to the Respondent by virtue of the agreement (Exhibit “A1”) entered into between the Appellant’s predecessor and the Respondent. This issue is therefore resolved in favour of the Appellant.

Issue No.2 is, whether in the circumstances of this case the purported contract of sale of the property is one that can be ordered to be specifically performed. Arguing the issue, learned counsel for the Appellant alluded to the testimonies of PW1, PW2 and PW3, and the case of Help (Nig.) Ltd v. Silver Anchor (Nig.) Ltd (2006) All FWLR (pt. 311) p.1833 at 1843; and the conclusion of the learned trial judge at page 161, to the effect that:

“An agreement is final and complete between parties on terms which must include the parties, the property, the consideration and the interests to be granted are defined. The contract would be enforceable by action if there is either a sufficient memorandum in writing as shown in Exhibit “A1″ or there is sufficient act of part performance on the part of either of parties as shown by the amount paid by Plaintiff therefore the only admissible evidence of contract of the house is Exhibit A1;”

to submit that the holding of the learned trial judge is perverse. That the learned trial judge used the word “OR” to show that either of the conditions enumerated is sufficient for the application of the principle of part performance. Learned Counsel then submitted that, the existence of a memorandum in writing, as in Exhibit A1 alone, is not sufficient to order sufficient performance, and that there is no sufficient act of part performance as the payment of the purchase price alone by the Respondent is not sufficient. That, after payment of the purchase price, the Respondent has not done any other act referable only to the existence of a valid contract; and that such act of part performance is where the party has also taken possession of the property with the consent of the other party. That the case of Arjay Limited (supra) relied on by the learned trial judge is not applicable in this case.

Learned Counsel for the appellant also submitted that, an order of specific performance cannot be made in this case as the order cannot be used to transfer possession to the Respondent, in that, the Respondent has not been put into possession and therefore has no equitable interest in the property as to warrant an order of specific performance. He further cited the case of Folarin v. Durojaiye (supra) at 366 – 367, to submit that, in the absence of the Governors’ consent, title is not transferable to the Respondent. Again that, since a new purchaser has come into the transaction and has been put into possession without notice of the agreement between the Appellant and the Respondent, the contract has become impossible to Perform.

Learned Counsel further contended that, the court will only grant an order or decree of specific performance for a purpose which can be achieved or enforced. The cases of International ile Industries (Nig.) Ltd v. Aderemi (supra) at p.304 and Help (Nig.) Ltd v. Silver Anchor (Nig.) Ltd (supra) at p.1852, were cited to submit that in the instant case, to submit that a decree of specific performance should not be granted as to do that will be in vain.

Learned Counsel for the Respondent contended that, an order of specific performance is an equitable remedy and therefore discretionary, but which power must be exercised not only judicially but judiciously. The case of Gaji v. Paye (2003) 8 NWLR (pt.822) p.583 at 607 paragraphs B – C was cited in support. He also cited the case of Ogbeide v. Osifo (2007) 3 NWLR (pt.1022) p.423 at 442 – 443 were the general principles of equity were espoused, to submit that, an order of specific performance is an equitable remedy granted to a successful litigant constraining the losing party to carry out the agreement which it had entered into with the successful litigant. That the rational for this is to prevent a grantor from resiling from a contract of sale of land he had voluntarily entered into. That, generally, an order of specific performance will not be readily made where remedy in damages will be sufficient, but that in cases involving sale of land (and more so where the land has a building on it) as in this case, damages cannot adequately compensate a party for breach of the contract of sale. That in the instant case, there is evidence that the Respondent paid N147, 000.00 for the property and which money has since been with the Appellant.

It was further contended by the Respondent that, the contention of the Appellant that since a new purchaser has come into the transaction and has been put into possession without notice of the agreement between the parties in this appeal, it will be impossible to perform the contract, cannot be sustained. That, it was found from the evidence of DW2 that the land was sold to DW2 in May, 1995 when this action was pending, having been filed in 1992, and therefore the sale to DW2 during the pendency of the action over the property has been caught by the doctrine of lis pendens; whether or not DW2 had notice. We were then urged to answer this issue in favour of the Respondent.

In the instant case, the claim for the order of specific performance is based on Exhibit “A1”. It has been found in this judgment that the said agreement was not conclusive in the sense that there remained something to be done by the Appellant before the contract can be effectively or fully consummated. That thing which remained to be done in order to vest legal title to the land or property, based on Exhibit A1, is the consent of the Governor as required by Section 22(1) of the Land Use Act. It therefore means that, the title to the land had not yet vested or deemed to be vested on the Respondent, so long as consent of the Governor had not been obtained. It would also mean that, title not having vested on the Respondent, he had no title which the court below could direct the Appellant to transfer or convey by way of specific performance. I therefore hold that, though there was an agreement between the parties for the sale of the land in dispute, an essential or condition precedent, which is the consent of the Governor, had not been fulfilled. See Taiwo v. Laguda (1959) SCNLR p.545; Best (Nig.) Ltd v. Blackwood Hodge Ltd (1998) 10 NWLR (pt.569) p.253 and Balogun v. Alli-Owe (2000) 3 NWLR (pt.649) p.477 at 482 per Aderemi, JCA. See also Ohiaeri v. Yusuf & Ors. (2009) 6 NWLR (pt.1137) p.207. It is therefore my view that, on this ground alone, an order of specific performance cannot be granted in the circumstances of this case.

Furthermore, even if it is considered that the Respondent has acquired an equitable interest on the land which can be enforceable by an order of court, being an equitable title, to succeed in getting an order of specific performance, the Respondent must show that he had altered his position to his detriment, consequent upon the agreement. In the instant case, the Respondent was never put into possession of the land, but allowed the Appellant to continue in possession of the land. There is also no evidence on record to show that the Respondent was induced, influenced or allowed by the Appellant to alter his position on the faith of the contract. Apart from the payment of purchase money and collection of certain documents pertaining to the building, the Respondent neither took possession of nor expended money in the building. In other words, there was no act of part performance of the contract by the Respondent as to warrant invoking the equitable doctrine of part performance in his favour.
See Adeniran v. Olagunju (2001) 17 NWLR (pt.741) p.169 at 193; Nkewedim v. Uduma (1995) 6 NWLR (pt.402) p.383.

Now, it has been contended by the Respondent that, it is inequitable, unjust and unconscionable for the Appellant to seek to vitiate the sale of the property in dispute to the Respondent on the ground that there was no Governor’s consent. Similar sentiments were expressed in the cases of Savannah Bank of (Nig.) LTD v. Ajilo (1989) 1 NWLR (pt. 97) p. 305 and U.B.N. Plc v. Ayodare (2007) All FWLR (pt.383) p.1. In Savannah Bank of (Nig.) Ltd v. Ajilo, the Supreme Court considered as inappropriate and unconscionable, the propriety of a mortgagor taking benefit of his own wrong in not obtaining the required consent. It was also described as morally wrong, but held that the maxim of ex turpi causa non oritur actio, cannot be applied so as to circumvent the law and the position of legal authorities as settled by the courts.
In a similar note, it was held in U.B.N. Plc v. Ayodare (supra) that, the maxim ex turpi causa non oritur actio, though evocable in some cases that have similar irregularities that attract such equitable relief, it is definitely not evocable in cases of this nature. That though it may appear unconscionable for a party to take benefit of his own wrong, but because of the express provision of Section 26 of the Land Use Act, the maxim ex turpi causa non oritur actio cannot apply to give relief to the offended party. The Supreme Court agreed that the appellant in that case, had effectively exploited the stringent provisions of Section 26 of the Land Use Act to perpetrate an unconscionable act, but in view of the provisions of the Land Use Act, equity is helpless to come to the aid of the offended party.

For now, that is the position of the Supreme Court in the matter of this nature. I am bound by those decisions of the highest Court in this country, and I am unable to exercise any judicial ingenuity to distinguish this case from the authorities cited above. Indeed, the Respondent did not help matters, as he appeared to be confident in securing the order of specific performance. As it would be seen, it has been resolved that he cannot get that equitable relief in view of the express provision of Sections 22(1) and 26 of the Land Use Act. Perhaps if he had considered the alternative relief of damages, he could have gotten some relief, but he did not. The wise counsel of Uwaifo, JSC is instructive on the matter, and if the Respondent had adverted his mind to it, it would have helped. His lordship stated in International iles Ind. (Nig.) Ltd v. Aderemi (supra) at pp.303 – 304 paragraphs H – A as follows:

“As the order of specific performance is an equitable remedy and therefore discretionary, it will in my view, be a grave error of pleading to claim for specific performance without at the same time in the alternative, claiming for damages. As has been said, even after a decree of specific performance has been granted, it can turn around that the defendant cannot give title to the property sold. In that case, a plaintiff who failed to claim damages in the alternative will be in a quagmire.”

These wise counsel of the Law Lord of the Supreme Court is instructive in this case. The order for specific performance has been found not to have been properly granted, and no alternative prayer for damages was pleaded by the Respondent nor granted by the court below. This court is therefore helpless in the matter, as there is no material before us upon which we may consider that option of damages. The only conclusion I have arrived at is that the two issues formulated in this appeal are resolved in favour of the Appellant.

Having resolved the two issues in favour of the Appellant, it is clear that this appeal has merit and is hereby allowed. Consequently, the judgment of the Oyo State High Court delivered by M. L. Abimbola; J on the 2nd day of August, 2006 in Suit No. I/846/1992 is hereby set aside.

I make an order of twenty thousand naira (N20,000.00) in favour of the Appellant.

CHIDI NWAOMA UWA, J.C.A.: I read before now the draft of the judgment of my learned brother HARUNA S. TSAMMANI, JCA. I agree that the appeal has merit and I allow same. I abide by the consequential orders made therein including that as to costs.

OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my brother Haruna Simon Tsammani J.C.A. I entirely agree with his reasoning and conclusions reached.

Although there was a Sales Agreement between the Respondent and the Late David Oluwole Ishola over the property, the subject matter of this appeal, the Sales Agreement did not suffice to alienate the property under Section 22 of the Land Use Act which Section makes the consent of the Governor pivotal to alienation of a right of occupancy.

While I have some sympathy for the Respondent who appears to have gained nothing after paying for the property the subject matter of the sales agreement, sympathy is not enough. A court cannot base its decisions on such idiosyncrasy as that will be way too capricious. As stated in Willoughby vs. IMB (1982) 1 NWLR part 48 p. 132. “Decisions based on sympathy alone are but quicksand in the law”.

As aptly pointed out by my learned brother in the lead judgment, the Respondent should also have asked for damages.

There is much wisdom in doing that, instead of putting all his eggs in the basket of specific performance. Now he cannot even recover damages as the court is not a charitable organization as to grant a relief which is not sought. I will also allow the appeal. In agreement with my learned brother Haruna Simon Tsammani JCA, I make an order of N20,000 in favour of the Appellant.

Appearances

M.O. Olumakin Esq.For Appellant

AND

Akeem Olaniyan Esq., with Tobi Adelusi Esq.
(held the brief of Adewale Adegoke).For Respondent