CMB BUILDING MAINTENANCE & INVESTMENT COMPANY LIMITED v. IDOWU ABOLADE
(2019)LCN/12902(CA)
In The Court of Appeal of Nigeria
On Monday, the 25th day of March, 2019
CA/L/755/2013
RATIO
COURT AND PROCEDURE: LOCUS STANDI
“It is trite that the document to examine to identify the locus standi is the statement of claim…See WUSHISHI V IMAN (2017) LPELR – 41906 (SC) where the Court held on the meaning of locus standi; what a party must show to establish locus standi:”This Court has, time without number, restated the true position on locus standi. The term locus standi is in my humble view, the legal right of a party to an action to be heard in litigation before the Court of law and it entails that capacity to institute or commence or initiate an action in a competent Court of law or Tribunal without let, hindrance, obstruction or inhibition from any person or body whatsoever. The question that does not come in is whether or not the party making the approach has an interest to protect or a legal right, what is in issue is whether aggrieved, he has the capacity to approach the Court to ventilate his grievance. This apex Court has at every given opportunity restated what the position of things is in INAKOJU V. ADELEKE (2007) 7 NWLR (PT. 1025) 502, where the Supreme Court held thus: “To have a locus standi to sue, the plaintiff must show sufficient interest in the suit. ” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
COURT AND PROCEDURE: ESTOPPEL
In resolving this issue, I have reproduced relevant correspondence by the parties themselves and not their solicitors. In UDE V NWARA & ANOR (1993) LPELR – 3289 (SC) the Supreme Court held thus: “By operation of the rule of estoppel, a man is not allowed to blow hot and cold, to affirm at one time and deny at the other, or, as it is said, to approbate and reprobate. He cannot be allowed to mislead another person into believing in a state of affairs and then turning round to say to that person’s disadvantage that the state of affairs which he had represented does not exist at all or as represented by him: See Cane v. Mills (1862) 7 H. & N. 913, at pp. 927-928. Dealing with the broad principle of estoppel in Joe Iga & Ors v. Ezekiel Amakiri & Ors. (1976) 11 S.C 1, this Court stated at pp.12-13: “If a man by his words or conduct willfully endeavours to cause another to believe in a certain state of things which the first knows to be false and if the second believes in such state of things and acts upon the belief, he who knowingly made the false statement is estopped from averring afterwards that such a state of things does not exist at the time; again, if a man either in express terms or by conduct, makes representation to another of the existence of a state of facts which he intends to be acted upon in a certain way, in the belief of the existence of such a state of facts, to the damage of him who so believes and acts, the first is estopped from denying the existence of such a state of facts. Thirdly, if a man whatever his real meaning may be, so conducts himself that a reasonable man would take his conduct to mean a certain representation of facts and that it was a true representation, and that the latter was intended to act upon it in a particular way, and he with such belief, does act in that way to his damage, the first is estopped from denying the facts as represented.” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
JUSTICES:
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
CMB BUILDING MAINTENANCE & INVESTMENT COMPANY LIMITED – Appellant(s)
AND
IDOWU ABOLADE – Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment):
This is an appeal flowing from the decision of the High Court of Lagos State delivered on 26/3/13 per NWAKA, J., wherein the Court delivered judgment in favour of the Respondent/Claimant. The Appellant being dissatisfied with the decision filed a Notice of Appeal on 11/6/13.
The claims at the lower Court was:
(1) An order of specific performance, directing the defendant to:
a) abide by the term of the agreement entered by the defendant and the claimant by accepting from the claimant the sum of N1,000,000(One Million Naira) being the balance sum due to the 1st defendant being the last instalment for infrastructural facilities as regards for the sale of Block 9, plots 20, 21 and 22 pearl Gardens Estate, Sangotedo, Lagos.
b) Return executed the Deeds of Assignment and any other documents of sale of the above described property on being prepared and presented by the claimant.
(2) Or in the alternative:
a) Payment for two of the plots have been concluded two plots of the three should be transferred to the Claimant and refund the balance on the third plot returned forthwith.
b) Pay total outstanding balance and interest on the refund for the third plot.
c) Cost of this action and damages for the breach of a simple contractual relationship to the tune of N10million foe special and general damages.
The summary of the fact is that the Appellant is a company registered in Nigeria under the Company and Allied Matters Act to carry on business as estate managers in Nigeria. The Appellant offered to the Respondent 3 plots of land wherein the Respondent paid the sum of N6,000,000 (Six Million Naira) at the rate of N2,000,000 (Two Million Naira) per plot and paid infrastructural levy of N3,000,000 (Three Million Naira) development fees out of N4,000,000 (Four Million Naira). The Respondent had issued two cheques in the sum of N200,000 (Two Hundred Thousand Naira) each towards the balance of the N1,000,000 (One Million Naira) on the infrastructure levy but instead of presenting the cheque the Appellant returned same as incomplete and threaten to cancel the interest of the Respondent in the above schemes and the Respondent thereon called off the transaction. In reaction, the Appellant turned to claim that the Respondent voluntarily withdrew from the scheme and filed claims in Court.
The Appellant’s brief was filed on 17/10/13 and settled by Rotimi Aladesanmi of Rotimi Aladesanmi & Co., wherein he distilled two issues for determination to wit:
1. Whether the Respondent had the locus standi to sue with the necessary parties before the Court in respect of enforcing the contract for sale of the subject plots of land.
IF THE ANSWER TO ISSUE 1 IS IN THE AFFIRMATIVE, THEN:
2. Whether the Respondent was not estopped by conduct from seeking any relief of specific performance or such other relief other than for monetary refund in respect of the contract for sale of the subject plots of land.
The Respondent’s brief was filed on 26/10/17 but deemed 12/2/18 which was settled by Lateef Abdulsalam and Ademola A. Adewale wherein 4 issues were formulated for determination thus:
1) Whether there is a valid contract between the Appellant and Respondent and whether the Respondent is entitled to sue on the said contract.
2) Whether the Appellant was not in breach of the contract between the Appellant and Respondent?
3) Whether there is any justification to interfere with the findings and decision?
4) Whether the Respondent’s letter of the 25th of March, 2009.
The issues of both parties are very different though flow from the same facts and grounds, I shall set out the arguments and deal with the issues seriatim but beginning with the first fundamental issue of locus standi which bothers on jurisdiction of the Court to entertain the matter, while taking into consideration the Respondent’s issue.
APPELLANT’S SUBMISSIONS
The Appellant submitted that failure to disclose locus standi is fatal to an action as failure to disclose any reasonable cause of action. He relied on BOLAJI V BAMGBOSE (1986) 4 NWLR (PT 37) 634; MOMOH V OLOTU (1970) ALL NLR 117; THOMAS V OLUFOSOYE (1986) 1 NWLR (PT 18) PG 669 at 680; OLORIODE V OYEBI (1984) 1 SCNLR PG 390 at 401; ADEFULU V OYESILE (1989) 5 NWLR (PT 122) PG 377 at 409.
Appellant submitted that it is settled law that a contract affects only the parties thereto and cannot be enforced by or against a person who is not a party to it. He relied on ATTORNEY GEN FED V AIC LTD (2004) 4 WRN PG 96; OJO V OGBE (2008) 33 WRN PG 177 AT 183, IKPEAZU V ACB (1965) NMLR 374; MAKWE V NWUKOR (2001) 32 WRN; NIGER PROGRESS LTD V N.E.L CORP (1989) 3 NWLR (PT 107) PG 68 at 98.
Appellant submitted that the assignor of the subject plots is a totally different entity that was never made a party to the proceedings and that it is a necessary party but the Respondent sued the Appellant who is the agent of the assignor. He relied on BANSEDUN V IYABO (1962) 2 ALL NLR PG 7 at 11-12; GREEN V GREEN (1987) 3 NWLR (PT 61) PG 80; OLAWUYI V ADEYEMI (1990) 4 NWLR (PT 147) PG 746 at 772.
In all, the Appellant urged the Court to hold that neither the Appellant nor Respondent are necessary parties and the right parties are the children of the Respondent and the assignor – Oyetubo Jokotade Estate Resources Ltd.
In the alternative if the above issue fails then the Appellant argued that the Respondent was estopped by his conduct from seeking any relief for the enforcement of the contract for sale of the plots of land. He relied on TIKA TORE PRESS LTD V ABINA (1973) ALL NLR PG 244; UDE V OSUGI (1990) 5 NWLR (PT 151) PG 488 at 509; BULLET INTERNATONAL LTD V BALOGUN (2001) 48 WRN PG 173 at 181.
Appellant contended that the lower Court failed to address the issue of estoppel raised in the Appellant’s pleadings and final address. Appellant submitted that the Respondent cannot be allowed to go back on his words in being not interested in the plots and refunds made. He referred to paragraphs 8 & 9 of the statement of defence. He relied on MORA V NWALUSI (1962) ALL NLR 681 at 689; UDEZE V CHIDEBE (1990) 1 NWLR (PT 125) PG 141 at 161-162.
Appellant also submitted that their sole witness testified that the representation made by the Respondent in the letter of 25/3/09 to the Appellant, made the Appellant rely on this letter to conclude that the Respondent is agreeable to be exited from the scheme and that the remaining issue would be that of monetary refund. He referred to the cases of NWAEZENA V NWAIYEKE (1990) 3 NWLR (PT 137) PG 230 at 239; REGISTERED TRUSTEES OF APOSTOLIC FAITH MISSION V JAMES (1987) 3 NWLR (PT 61) PG 556; EBBA V OGODO (1984) 4 SC 84 at 98 – 100.
RESPONDENT’S SUBMISSIONS
The Respondent submitted on issue 1 that there is no dispute that the plots were purchased on behalf of his three children at Pearl gardens estate for a total sum of N6million amongst other undisputed payments.
He submitted in response on the issue of locus standi that it is not borne out of facts and enumerated ingredients of a valid contract. He relied on ORIENT BANK OF NIGERIA PLC V BILANTE INTL LTD (1997) 8 NWLR (PT 515) 37; OMEGA BANK V OBC LTD (2005) 1 SC (PT 1) 49.
He contended that the Appellant did not raise any legal issue about the capacity of children; the capacity of the ultimate beneficiaries to purchase land. He further referred to evidence of Appellant on 20/2/12 and documents tendered in Court, and that therefore the capacity of the Respondent to contract on behalf of his children were never in doubt. He relied on N.B.B.B. V A.C.B. (2004) 1 S.C. (PT 1) 32 at 52; TSOKWA MOTORS V UBN (1996) 9 NWLR (PT 471) 129; AG FED V. ALFOTRIN (1996) 9 NWLR (PT 475) 634.
Respondent posit that no Court of law and equity would allow the Appellant escape liability on technicality as it would not be used as an instrument of fraud. He referred to Section 7 of the Land Use Act and submitted that as the father of three minors, the father is entitled to be granted a statutory right of occupancy or consent in respect of land as their guardian or trustee.
Respondent submits that by virtue of Section 7(a) of the Land Use Act his locus to sue on their behalf cannot be challenged. He relied on IBRAHIM V OSIM (1988) 3 NWLR (PT 62) 257; OILFIELD SUPPLY LIMITED V JOHNSON (1987) 2 NWLR (PT 58) 625; CHIDOKA V FIRST CITY FINANCE (2012) 7 SC (PT 4)1; ALADE V ALIC (2015) 12 SC (PT 2) 59; FDB FINANCIAL SERVICES LTD V ADESOLA (2002) 8 NWLR (PT 668) 170 at 173.
Respondent submits that none of the children who signed the deed was a minor at that time and that the first two were already adults and the last was above 20 years.
Respondent referred to the letters – Exhibits D & H of 18/3/09 and 25/3/09 respectively and submitted that they did not amount to an admission to exit from the scheme. He defined admission in Section 20 of the Evidence Act, 2011 and by the cases of ADEWUNMI V PLASTEX (1987) 3 NWLR (PT 32) 767; MGM LTD V NSP LTD (1987) 1 NWLR (PT 55) 100; CAPPA & DALBERTO V AKINTILO (2003) 4 SC (PT 2) 1; NBN V GUTHRIE LTD (1993) 3 NWLR (PT 284); ADUSEI V ADEBAYO (2012) 1 SC (PT 4) 95; NBCI V
INTERGRATED GAS NIG LTD (2005) 1 SC (PT 1) 131 at 148. Respondent submitted that at no time did he by word or conduct voluntarily agree to exit the scheme. He relied on A.G. NASSARAWA V AG PLATEAU (2012) 3 SC (PT 2) 1; ADEKEYE V ADESINA (2010) 12 SC (PT 2) 1; A.G. RIVERS V A.G. AKWA IBOM (2011) 3 SC 1 for the definition of estoppel and contended that Section 151 of Evidence Act applied to this case wherein it incorporates equitable estoppels.
Respondent urged the Court not to disturb or interfere with the findings of the lower Court. He cited OBODO V OGBA (1987) 2 NWLR (PT 54) 1; AJUWON V ADEOTI (1990) 2 NWLR (PT 132) 271; NWOKE V OKERE (1994) 5 NWLR (PT 343) 159.
RESOLUTION
This is a straight forward matter that ought not to have been resolved through litigation. It is a commercial matter which should be timeously settled but due to the process of litigation it has resulted in about 9 years of waiting.
In paragraphs 3, 4, 5, 6, 7 & 8 of the claim:
3. Sometime in November 2005, the Claimant approached the Defendant on behalf of the children to buy three (3) plots of land at pearl garden estate which was advertised for sale to the public, for three of his children and the Defendant agreed to sell three plots of land to the Claimants children in their separate names.
4. The Defendant after negotiation agreed to sell the three plots to the claimants for N6,000,000.00 (Six Million Naira) each plot sold for N2,000,000.00 Two Million Naira, which the claimant paid on behalf of his children and receipt of the sum of N6,000,000;00(Six Million naira) was acknowledged by the Defendant, the receipt is hereby pleaded and shall be relied on at trial,
5. The Defendant subsequently after the purchase of the land had been concluded and receipt for the purchase of the three plots of land had been issued to the Claimant sent Deeds of Assignment and distinct survey plans which were duly executed.
6. In July 2006, the Defendants raised the issue of payment of infrastructures and payments commenced in August 2006.
7. The said payment for infrastructures was agreed upon at the meeting of the stakeholders and the total sum of infrastructures N4,000,000;00 (four million Naira) was apportioned to my children being the total cost for the three plots to be paid instalmentally
8. The claimant had paid the total sum of N3,000,000;00 (Three million Naira) as part payment, the proposed N4,000,000;00 FOR THE INFRASTRUCTURE IN THE ESTATE AS AT WHEN DUE AND LEFT WITH AN outstanding balance of N1,000,000;00(One Million Naira).
The Appellant in their defence in paragraphs 2, 3, 4, 5 & 6 responded thus:
1. The defendant admits that the sum of N6000, 000; 00 Naira was received from the claimant on behalf of the claimant’s children (who are minors) for land transaction with the said minors.
2. The defendant denies the allegation in paragraph 6 of the statement of claim that the issue of payment for infrastructure was raised in JULY 2006 and avers that the said issue of infrastructure was raised from the outstanding with the claimant in 2005.
3. Further to the averments contained in paragraph 7 of the statement of claim, the defendant avers that the stakeholders agreed that the defendant would raise the finance for the development of the infrastructure and the amount payable by each stakeholder would be apportioned accordingly.
4. The defendants financed the development of the said infrastructure through loans with attendant interest rates and bank charges and the stakeholders were given the latitude by the defendant to make monthly instalment payments for the said infrastructure. These payments were however to be completed by a specified period.
5. The defendant avers that the claimant did not make the payments in respect of the plots for his children as and when due and at times issued dishonoured cheques, to the chagrin and embarrassment of the defendant.
6. The failure of the claimant and a few other stakeholders to make the payments as and when due brought severs financial pressure on the defendant which had mortgaged its properties to secure the bank facilities for development of the infrastructure.
It is trite that the document to examine to identify the locus standi is the statement of claim. From the above reproduced averments in the claim, paragraphs 2 – 6 are very relevant because it shows that the plots were bought on behalf of the claimants children and the Appellant recognised that fact but dealt with the Respondent who negotiated and transacted the deal on behalf of his children and receipt issued – see paragraphs 3 & 4 thereof.
Again from the front loaded documents, the cheques for payments were those of the Respondent. See pages 11 – 13, see WUSHISHI V IMAN (2017) LPELR – 41906 (SC) where the Court held on the meaning of locus standi; what a party must show to establish locus standi:
“This Court has, time without number, restated the true position on locus standi. The term locus standi is in my humble view, the legal right of a party to an action to be heard in litigation before the Court of law and it entails that capacity to institute or commence or initiate an action in a competent Court of law or Tribunal without let, hindrance, obstruction or inhibition from any person or body whatsoever. The question that does not come in is whether or not the party making the approach has an interest to protect or a legal right, what is in issue is whether aggrieved, he has the capacity to approach the Court to ventilate his grievance. This apex Court has at every given opportunity restated what the position of things is in INAKOJU V. ADELEKE (2007) 7 NWLR (PT. 1025) 502, where the Supreme Court held thus: “To have a locus standi to sue, the plaintiff must show sufficient interest in the suit.
13
One criterion of sufficient interest is whether the party could have been joined as a party to the suit. Another criterion is whether the party seeking the redress or remedy will suffer some injury or hardship from the litigation. If the Court is satisfied that he will suffer, then he must be heard as he is entitled to be heard.”
Furthermore in BARBUS & CO. NIG LTD & ANOR V OKAFOR-UDEJI (2018) LPELR – 44501 (SC):
“The expression “Locus standi”, denotes legal capacity to institute proceedings in a Court of law. It is used interchangeably with terms like “standing” or “title to sue”. A person has locus standi to sue in an action if he is able to show to the satisfaction of the Court that his civil rights and obligations have been or are in danger of being infringed. There are two tests for determining if a person has locus standi. They are:- 1. The action must be justiciable. 2. There must be a dispute between the parties. There ought to be a liberal approach in applying the test. See OJUKWU V OJUKWU & ANOR (2008) 12 SC (PT. 111) PAGE 1, (2008) 18 NWLR (PT. 1119) 439, Attorney General Kaduna State v Hassan (1985) 2 NWLR (PT. 8) 483, Adesanya v President of the Federal Republic of Nigeria & Anor (1981) 550 page 112, (1981) LPELR – 147 (sc), THOMAS & ORS V OLUFOSOYE (1986) 1 NWLR (PT 18) 669, EMEZI V OSUAGWU & ORS (2005) 12 NWLR (pt 939) 340.
From the definition of locus standi, it is clear that for a person to have the legal capacity to sue over a matter, he must show sufficient interest in the subject matter of litigation and that will give him the access to institute proceedings in a Court of law. As was the case in relation to ascertaining reasonable cause of action, the pleadings of the party seeking to sue must disclose a cause of action vested in the plaintiff and the rights and obligations or interest of the plaintiff which have been violated before he can be vested with locus standi to sue.”
Therefore it is clear that the Respondent has an interest to defend and is sufficiently aggrieved. From the averments he was a heavy player in the transaction and there is no dispute that he paid for the land and the infrastructure fee for the land. The Appellant cannot raise this issue to defeat the claim at this stage and the Respondent therefore can be said to be holding the land for his children.
This is a recognised claim in equity in form of a resulting trust. See JOLUGBO & ANOR V AINA & ANOR(2016) LPELR 40352 (CA) where this Court had cause to say:
“My Lords, a resulting trust arises in situations where, by the quasi-operation of law, a trust is implied from the conduct of parties or all the circumstances of the case. Resulting trusts, as with constructive trusts, arises by operation of law and without the concerted actions of a grantor to constitute an express trust. It does not come to being by design, but arises only where equity stipulates that a trust should be imposed on account of the particular circumstances. Consequently, there are no formal requirements for its creation. As M. HALEY & L. MCMURTRY, in EQUITY AND TRUSTS, 2nd Edition, London: Sweet & Maxwell, 2009, 257 puts it, “the essential characteristic of the resulting trust is that the settler is also the beneficiary (and) its fundamental function is to ‘re-direct’ the beneficial ownership of trust property back to the former title owner.” No doubt, resulting trusts operates in two main context; firstly, in case of failed trusts and secondly, the voluntary transfer or the purchase in the name of another. We are here now concerned with the latter category, as per the circumstances of the dispute leading to the instant appeal. In the second category, where a person purchases a property in the name of another, equity adopts a realistic interpretation of the parties’ motivation.
The imposition of the resulting trust is based on the unrebutted presumption that the person who paid the purchase price, did not intend to benefit the person in whose name the property was bought. Equity presumes, in the absence of any explanation to the contrary, that the intention of the grantor or purchaser was to retain the beneficial interest in himself and a resulting trust is declared in his favour. See DYER v DYER (1788) 2 COX 92; 30 ER 42; COKER v. COKER (1964) LLR 188. The principle as stated only raises a presumption of resulting trust, is rebuttable and occasionally displaced by evidence of intention to benefit the grantee or a counter-presumption of equity and also where its applicability would be contrary to public policy, oral or documentary evidence may be admitted to show the nature of the transaction.
Therefore, the fundamental function of the Court is to discover the true intention of the person who purchased the property in the name or whether the person in whose name the property was bought, is indeed the beneficial owner. According to M.I. JEGEDE, LAW OF TRUSTS’ BANKRUPTCY AND ADMINISTRATION OF ESTATE, Lagos: MIJ PUBLISHERS LIMITED, 1999, 107, “The important function of the Court is the discovery of the true intention of the donor and this may be gathered from the instrument relating to the transaction which gives rise to the presumption of the resulting trust. In essence, once the factual situation raises a presumption of a resulting trust, the beneficial interest in the property rests with the person in whose favour the resulting trust is presumed…”
See also ONWUSERAKI & ORS V REG TRUSTEES OF AMUCHA DEV ORGANISATION KANO BRANCH (2017) LPELR – 43146 (CA).
The Appellant have contended that the non-joinder of the assignor – Oyetubo Jokotade Estate Resources Limited is fatal. I have seen that all the correspondence in this matter all came from the Appellant and it is trite that a claim will not be defeated by non-joinder of a party.
The Appellant could equally have joined them if they were necessary parties in their opinion neither was it raised in the defence. See the case ofSAPO & ORS V SUNMONU (2010) LPELR – 3015 (SC):
“It need to be borne in mind always and this is also settled that no cause or matter, shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every cause or matter, deal with the matter in controversy so far as regards the rights and interest of the parties actually before it. See the cases of Chief Onwuka Kalu v. Chief Odili -In Re: Chief Nwoja & 2 Ors. (1992) SCNJ (Pt.1) 76 at 115; Osunrinde & 7 Ors. v. Aiamogun & 5 Ors. (1992) 6 NWLR (Pt.246) 156 at 183 – 184; (1992) 7 SCNJ (Pt.1) 79 (supra); Sheehan v. Great Eastern Railway Co. (1880) 16 Ch. 55 at 64. It is the undisputed right of a plaintiff, to choose the person or persons against whom he wishes to proceed against…… the fact that a necessary party to the action has not been joined, is not fatal to the action and will not render the action a nullity – see Oladehinde (sic) & Awo v. Oduwole 1962 WNLR 41.
I therefore resolve this issue against the Appellant.
The next stage is to examine if the Respondent is not estopped by his conduct from seeking any relief of specific performance or such other relief other than for monetary refund of the contract for sale of the subject plots of land.
Again a look at the pleadings of parties shows that the Appellant did not deny the averment in paragraphs 5 & 7 of the claim; that after the sale had been concluded the issue of infrastructure arose and was concluded at a meeting of stakeholders, therefore there was no dispute about payment of the plots. See page 14 of the record for letter forwarding 3 copies of sale agreement and 6 original copies of deeds of assignment with survey plans sent to the Respondent for signatures thereon, on 25/7/08.
At this stage there was a valid contract between the parties and all conditions for sale had been met, the sales receipt and deed of assignment was ready for execution by the Respondent.
The dispute therefore is in respect of the infrastructure which the Respondent claim was allowed to be paid in instalments. A perusal of all the transaction documents made no mention of this fee nor was it a condition therein. The Appellant denied that the Respondent could pay instalmentally. The undeniable fact was that he had paid up for the plots by 2005 but what was left of the infrastructure fee was the sum of N1,000,000.00 (One Million naira) out of N4,000,000.00 (Four Million naira).
The solicitors to the Appellant wrote in the last paragraph regarding the unpaid outstanding categorically thus:..It should be stated that your conduct smacks of perfidy to say the least and our clients are constrained to conclude that by your attitude, you are quite unwilling to go ahead with the scheme. Consequently, your said plot shall be put up for sale, and a refund of all sums paid till date by you, shall accordingly be made payable to you by the Estate managers.”
Respondent had sent two cheques totalling N4,000,000.00 to the Appellant as deposit for balance infrastructure fees but was returned to him, on 18/3/09 via a letter of 24/3/09. I shall reproduce same for clarity:
Further to the exit letter sent to you on 18th March, 2009 in respect of the purchase of plot(s) of land in Pearl Garden Estate Sangotedo, find enclosed your post dated cheque(s) issued to us accordingly.
All payment(s) made so far, in this regard, shall be refunded to you as soon as possible.
Thanks, for your understanding. (underlining mine)
It is pertinent to note that at this stage the Appellant had exited the Respondent from the scheme and was to follow up with a refund of the entire sums paid on the scheme.
The Respondent replied via a letter dated 25/3/09 thus:
We acknowledge receipt of your solicitors letter (Rotimi Aladesanmi &co) dated 18th March 2009 and your follow up letter of today 24th March, 2009,.we acknowledge receipt of our rejected and returned post dated cheques for 30th march and 30th April, 2009 respectfully in the total sum of N400,000 (Four Hundred Thousand Naira)
We wish……
Please be informed that when the purchase of the parcel of 3plots of land was negotiated it was just the cost of the land at N600,000;00 (Six Million Naira). This sum was promptly paid and we have the receipts to proof that.
The issue of infrastructure came in after we had concluded purchase and another N400,000;00 (Four Million naira) was allocated as our payment for infrastructure a sum that was not discussed with us at the time of purchase.
However based on the outcome of the stakeholders meeting on this issue, it was agreed that this sum should be paid up in instalments.
We had since being paying on instalment and our records show that we had paid more than N3,000,000 (Three Million Naira), thus we have little to complete the infrastructure payment.
Your insistence on our withdrawal from the scheme now that we are almost through with the payment and refusal to accept our cheque as you have always done smacks of a hidden agenda reminiscence of the notorious Omo onile syndrome that have plagued honest property acquisition in the country for many years.
Please be advised that we are trying our best to complete our payments as soon as possible; to put paid to your insensitivity, but if you must go on with your threat, please be informed that we are not begging to be retained on the scheme, but please note that our refund should be done pronto with all accrued interest, failing which we are prepared to sue to reclaim the parcel of land we had paid for and which rightfully belong to us,.
We THANK YOU FOR YOUR USUAL COPERATION WHIST LOOKING FORWARD TO RECEIVING YOUR CHEQUE IN SETTLEMENT OF OUR PAYMENTS PLUS ACCRUED INTEREST…
The Appellant had pleaded the issue of estoppels by conduct in paragraph 9 of the defence to operate as a bar to a claim for specific performance.
The turning point is whether the Respondent letter amounts to this. In resolving this issue, I have reproduced relevant correspondence by the parties themselves and not their solicitors. In UDE V NWARA & ANOR (1993) LPELR – 3289 (SC) the Supreme Court held thus:
“By operation of the rule of estoppel, a man is not allowed to blow hot and cold, to affirm at one time and deny at the other, or, as it is said, to approbate and reprobate. He cannot be allowed to mislead another person into believing in a state of affairs and then turning round to say to that person’s disadvantage that the state of affairs which he had represented does not exist at all or as represented by him: See Cane v. Mills (1862) 7 H. & N. 913, at pp. 927-928. Dealing with the broad principle of estoppel in Joe Iga & Ors v. Ezekiel Amakiri & Ors. (1976) 11 S.C 1, this Court stated at pp.12-13: “If a man by his words or conduct willfully endeavours to cause another to believe in a certain state of things which the first knows to be false and if the second believes in such state of things and acts upon the belief, he who knowingly made the false statement is estopped from averring afterwards that such a state of things does not exist at the time; again, if a man either in express terms or by conduct, makes representation to another of the existence of a state of facts which he intends to be acted upon in a certain way, in the belief of the existence of such a state of facts, to the damage of him who so believes and acts, the first is estopped from denying the existence of such a state of facts. Thirdly, if a man whatever his real meaning may be, so conducts himself that a reasonable man would take his conduct to mean a certain representation of facts and that it was a true representation, and that the latter was intended to act upon it in a particular way, and he with such belief, does act in that way to his damage, the first is estopped from denying the facts as represented.”
I find that the letter of the Appellant had categorically exited the Respondent from the scheme, returned cheques and communicated that a refund would follow. On the other hand, the Respondent only emphasised that he is interested in completing payments and that it is not a gratuitous matter having paid for the land.
Furthermore he reminded the Appellant that not only a refund as a last resort but must be done promptly and with full interest, having tied the funds down.
Can this be an admission as to operate as an estoppel by conduct? I am afraid not. In GIRA V STATE (1996) LPELR 1322 (SC) it was held that there is in law a legal principle commonly referred to as admission by conduct. The law is that when a clear and direct accusation is made against a person, in his presence, in circumstances which should warrant instant denial, refutation, or protest against the making of the accusation evidence of such could be given against him as evidence of admission by conduct.
In AKINOLA & ANOR V WEMA BANK PLC (2014) LPELR 24132 (CA) this Court considering the operation of estoppel by conduct held thus:
“Estoppel generally is known to be a shield and not a sword but there is a qualification to the general rule. Estoppel generally is an admission of something which the law views as equivalent to an admission. And admission is defined by Blacks Law Dictionary 9th Edition as follows: “Any statement or assertion made by a party to a case and offered against that party; on acknowledgment that facts are true.” Thus estoppels by its very nature is considered as conclusive that the party whom it affects is not allowed to plead against it, or adduce evidence to contradict it, it prohibits a party from proving anything which contradicts his previous acts or declarations to the prejudice of a party, who relying upon them, has altered his position. There must be some previous acts, omission or declaration intentionally made by a person which caused or permitted the other person to believe to be true and upon which the later acted to his detriment. See the case of ADONE V IKEBUDU (2001) NSCQLR W18 174 where the Supreme Court defined estoppel as above and the case of UDE V OSUJI (1998) 9 – 10 SC. 188 where the Supreme Court again described estoppels by conduct in the following manner: “Estoppel by conduct is that where one party has by his words or conduct made to the other promise of assurance which was intended to affect the legal relations between them and to be acted upon accordingly, then once the other party had taken him at his word acted on it, then the other who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance had been made by him. “The general principle is that a party is not allowed to or proceed from contending the contrary or opposite of any specific point which have been once distinctly put in issue which has certainly and solemnly been determined against him. The exception to the general rule was restated by AKAMBI J.C.A (as he then was) in the case of O.A.U. V ONABANJO (1991) 5 NWLR (Pt 193) 549 at 567 thus: “As to whether or not estoppels can be used to found a cause of action, I venture to say that very much depends on the nature of the claim and the facts and circumstances of the case. However, it is not entirely as often been said that it can never be used as a sword. If any authority is needed, I find one in the case of PASCOE V TURNER (1979) 2 ALL E.R. 945 at 949 where the point was made that- “Where estoppel by encouragement or acquiescence is found on the facts, those facts give rise to a cause of action. They may be relied on as a sword not merely as a shield.”
In this case flowing from the above dictum the Appellant seeks to use estoppel as a sword. In my view I do not think he is entitled. Flowing from the contents of the letter of 18/3/09 and that of 24/3/09 which categorically stated that the Respondent had been removed from the scheme, it was not a warning or caution nor threat it was a firm communication as to what had been agreed by them. They were not asking for his opinion or further participation having returned cheques. I hold that it is the Appellant that are estopped from contending that the Respondent admitted or consented.
The Appellant stated in paragraph 10 of the defence that the Respondent failed to come for reconciliation. This is an afterthought obviously, they did not wait to return the cheques neither did they demand for the whole balance to be paid, they knew what was paid so far, see the letter of 14th November, 2005 where interest were calculated on instalmental payment therefore it does not lie in the mouth of the Appellant that Respondent failed to come for reconciliation. They failed to make good their threats of refunding promptly.
The Respondent pointed out that he paid the full cost of the plots as agreed on the deed and also commenced payment infrastructure which was not factored in and this evidence was not denied. It came after the deal was sealed but Appellant unilaterally revoked the allocation of the plots at its pleasure. The Respondent was not in breach neither was there mutual agreement thereon.
I am in agreement with the findings of the lower Court that. See the case of IBEKWE V NWOSU (2011) LPELR 1391 (SC) on the nature of the doctrine of specific performance:
Specific performance is the remedy of requiring exact performance of a contract in specific form in which it was made or according to price terms agreed upon. It is the actual accomplishment of a contract by a party bound to fulfil it…
See also HELP (NIG) LTD V SILVER ANCHOR NIG LTD (2006) LPELR – 1361 (SC).
The Appellant have failed to disclose whether it is impossible to enforce the contract, therefore this remedy elected by the lower Court is judicially and judiciously exercised under the circumstances. The Respondent paid since 2005 and was expected to build the plots, it was property bought for the children and the purpose and expectation was cut off rashly by the Appellant. If the amount was used for another commercial venture or fixed funds probably it would have yielded a better dividend. There was no reason to have treated the Respondent like that, used its funds and dumped him off for a flimsy reason and now attempt to refund the exact money – which is not tenable lawfully or equitably.
The manner of exit was in bad taste and leaves a sour taste in the mouth. I find no reason to tamper with the finding and decision of the lower Court.
I therefore resolve this issue against the Appellant.
On the whole, having resolved the two main issues against the Appellant, the appeal fails and it is accordingly dismissed. The judgment of the High Court of Lagos State delivered on 26/3/13 per NWAKA, J., is hereby affirmed. Costs of N250,000 is awarded in favour of the Respondent.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the succinct judgment prepared by my learned brother, Abimbola Osarugue Obaseki-Adejumo, J.C.A.
TIJJANI ABUBAKAR, J.C.A.: My learned brother OBASEKI-ADEJUMO, JCA granted me the privilege of reading in draft the leading Judgment just rendered in this appeal, I am in full agreement with the reasoning and conclusion, and adopt the Judgment as my own, I have nothing extra to add.
Appearances:
Rotimi Aladesanmi with him, Uwaifo For Appellant(s)
A. A. Adewale with him, Lateef Abdusalam For Respondent(s)
