HRH OBA J. O. AGUNBIADE & ANOR v. ATLOR NIGERIA LIMITED & ANOR
(2015)LCN/7867(CA)
In The Court of Appeal of Nigeria
On Friday, the 15th day of May, 2015
CA/AK/96/2012
RATIO
APPEAL: ISSUE FOR DETERMINATION; THE IMPLICATION OF THE FAILURE TO FORMULATE ANY ISSUE FOR DETERMINATION FROM A PARTICULAR GROUND OF APPEAL
Where no issue for determination is formulated from a particular ground of appeal, that ground of appeal is deemed abandoned by the Appellant and would be struck out. See the decisions of this court in A.N.P.P. v. I.N.E.C (2004) 7 NWLR (Pt.871) 16 and Gayero v. Mainasara & Sons Ltd (2006) 8 NWLR (Pt.982) 391 and that of the Supreme Court in Bhojsons Plc v. Daniel Kalio (2006) 5 NWLR (Pt.973) 330. per. JAMES SHEHU ABIRIYI, J.C.A.
PRACTICE AND PROCEDURE: RULE OF PRACTICE AND PROCEDURE; WHETHER A BREACH OF A RULE OF PRACTICE AND PROCEDURE CAN ONLY RENDER A PROCEEDING IRREGULAR AND NOT A NULLITY AND THE DUTY OF COUNSEL TO POINT OUT IRREGULARITY IN THE PROCEEDING AND WHETHER ANY APPLICATION TO SET ASIDE FOR IRREGULARITY SHALL BE ALLOWED
A breach of a rule of practice and procedure can only render a proceeding irregular and not a nullity. And it is the duty of counsel to take the point of irregularity in the proceedings as they occur. Any application to set aside for irregularity any proceedings or judgment, shall not be allowed unless made within a reasonable time and before any further or fresh step is taken in the proceedings. See: Order 2 Rules 1-3 of the High Court (Civil Procedure) Rules 1987 of Ondo State, Agbakoba v. I.N.E.C. & Ors (2008) 18 NWLR (Pt 1119) 489, Niger Benue Transport Co. Ltd v. Narumal & Son Ltd (1986) 4 NWLR (Pt.33) 117. per. JAMES SHEHU ABIRIYI, J.C.A.
COMMERCIAL LAW: CONTRACT OF SALE; WHETHER PART PAYMENT IN A CONTRACT SALE MEANS THE CONTRACT HAS BEEN CONCLUDED AND IS FINAL
In a contract for sale of property particularly land where part payment was made, the law is that the contract for the purchase has been concluded and is final, leaving the payment of the balance of the purchase price outstanding to be paid. The contract for the sale and purchase is absolute and complete for which each party can be in breach for non-performance and for which action can lie for specific performance. See the decision of this court in Gege v. Nande (2006) 10 NWLR (Pt.988) 256. per. JAMES SHEHU ABIRIYI, J.C.A.
JUSTICES
SONTOYE DENTON-WEST Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
1. HRH OBA J.O. AGUNBIADE
2. PRINCE ADE C. ALADESAYE
(FOR THEMSELVES AND ON BEHALF OF OLOBA ROYAL FAMILY) Appellant(s)
AND
1. ATLOR NIGERIA LIMITED
2. MR. AJIBADE Respondent(s)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Ondo State High Court Akure Judicial Division delivered on 6th July 2011 by Adegbehingbe J. at Akure. The Appellants were the Plaintiffs at the lower Court. The Respondents were the Defendants/Counterclaimants.
The claim of the Appellants at the lower Court was for the following:
A. N20,000,000 (Twenty Million Naira) only general damages for the trespass committed and still being committed by the Defendants on the parcel of land known as Oke-Eri lying and situate at Oba-Ile, Akure North Local Government Area and bounded on the 1st side by the School of Agriculture Akure on the 2nd side by Omodara Family Layout, on the 3rd side by Benin/Owo Garage, Akure and on the 4th side by Akure-Owo Benin Express High way.
B. AN ORDER OF PERPECTUAL INJUNCTION restraining the Defendants either by themselves, servants, agents, assigns and privies from further committing any acts of trespass on any part or portion of the Plaintiffs land known and described as Oke-Eri lying and situate at Oba-Ile and bounded on the 1st side by the School of Agriculture Akure on the 2nd side by Omodara Family Layout, on the 3rd side by Benin/Owo Garage, Akure and on the 4th side by Akure-Owo Benin Express High way.
The Respondents counterclaimed for the following:
(i) AN ORDER of Court for Specific Performance of the contract of sale of the disputed land by the parties giving rise to the grant of the right of Statutory Right of Occupancy to the counter-claimants by the Plaintiff/Defendants.
OR ALTERNATIVELY
(ii) The sum of N100,000,000:00 being general damages arising from the breach of contract of sale of the disputed land by the plaintiffs/Defendants to the counter-claimants.
(iii) Special Damages N68,606,666.66
(iv) General damages N31,393,33.4
Total = N100,000,000.00
The facts of this case are simple and short. According to the Appellants, the appellants’ family granted a lease of a quarry site to Falcon Holdings Ltd which was to expire in June 2007. Before the expiration of the lease Falcon Holdings Ltd handed over the unexpired term to the Respondents. At the expiration of the lease, the Respondents offered to buy the quarry. But the Appellant declined to sell it to them.
The case of the Respondents was that the offer to buy the land was accepted at appellants’ family meeting and they paid N4million out of N7million agreed upon as amount for the purchase of the quarry. Subsequently, the Appellants attempted to go back on the agreement and the Respondents insisted on specific performance of the contract of sale of the quarry.
After considering evidence and addresses of counsel for the parties, the lower Court dismissed the claim of the Appellants and entered judgment in favour of the Respondents as counterclaimed.
The Appellants have approached this court by an original notice of appeal containing eleven grounds of appeal challenging the decision of the lower Court. With leave of this court, the notice of appeal was amended by an amended notice of appeal maintaining nineteen (19) grounds of appeal from which the Appellants presented the following three issues for determination:
Issues 1: Whether, by the provisions of Order 25 Rules 2(1) of the Ondo State High Court (Civil Procedure) Rules 1987, the Defendant/Respondents’ statement of Defence and Courter-claim filed after a period of 79 days after the service of the statement of claim on them was filed within time and whether the judgment of the trial court based o (sic) such incompetent statement of defence and Counter-Claim ought not to be set aside.
2. Whether the provisions of Ondo (sic) 13 Rules 1(1),(2), (3), 2&3 of the Ondo State High Court (Civil Procedure) Rules 1987 as regards filing Memorandum of Appearance by a defendant is not mandatory and whether failure to comply therewith does not render the defendant/counter-claimant case irregular necessitating it being set aside.
3. Whether interest in family land can be validly transferred without the consent/approval of the family head and whether the defendant/counter-claimant in this case discharged the onus of proof that such consent/approval was actually given in this case.
The Respondents adopted the three issues formulated by Appellants.
It was submitted on issue 1 that Respondents did not file the statement of defence within the time stipulated by the rules of court and failure to seek leave to regularise their position rendered the statement of defence incompetent.
The court was referred to Order 25 Rule 2(1) of the Ondo State High Court (Civil Procedure) Rules 1987, Menakaya v. Menakaya (2001) ALL NLR Vol 6 348, Unilag v. Aigoro (1985) 1 NWLR (Pt.1) 143, Nwankwo v. Yar’Adua (2010) ALL FWLR (Pt.534) 1, Bamaiyi v. AG Federation (2001) FWLR (Pt.64) 344 and Ifezue v. Mbadugba (1984) 1 SCNLR 427.
It was submitted that the decision of the lower Court which was contrary to the mandatory provisions of the Rules is a nullity.
On issue ii, it was submitted that no appearance of any kind was entered by the Respondents. Therefore the defence and counterclaim were not filed in accordance with the Rules of court particularly Order 13 of the Ondo State (Civil Procedure) Rules 1987.
It was submitted that judgment based the statement of defence and counterclaim is a nullity and ought to be set aside.
On issue iii, it was submitted that family property can only be validly alienated in the following circumstances:
(a) Where there is a sale or conveyance of family land by the head of the family with some important members thereof but without the consent of some principal members of the family then the transaction is voidable and those members who should have consented to the transaction but did not can take out an action to have the transaction set aside.
(b) The sale of family land by a member of the family who is not the head of the family, is void.
(c) The sale of family land by the head of the family without the consent of principal members of the family is voidable.
(d) The sale of family land by the head of the family as his own land is void.
(e) Where a sale is void, it has to be so declared if asked to be set aside but where it is voidable, whether or not it will be set aside will depend upon the facts and circumstances of the case.
It was submitted that a sale of family property without the other members of the family being parties to the purported sale is void. We were referred to Mohammed v. Klargester Nigeria Limited (2002) FWLR (Pt.127) 1078 at 1097.
It was argued that parties in this case are ad idem on the fact that the head of the family did not consent to the sale of the family land. That it was agreed that Chief Yemisi Aladesaye, the person to whom the defendants/Respondents allegedly paid was a principal member of the family. It was further contended that it was agreed that the said Chief Aladesaye Yemisi did not deliver to the family the alleged consideration paid and that he admitted that much in his evidence as DW2.
It was submitted that the Respondent failed to establish the fact that the consent of the head of Oloba Royal Family was sought and obtained in the alleged transfer of title in the Oloba Royal Family land.
Learned counsel for the Respondents pointed out that no issue was formulated from Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 17, 18 and 19 of the grounds of appeal and submitted that where no issue is formulated from a ground of appeal, such ground of appeal or the number of them where no issues are formulated from are deemed abandoned and liable to be struck out. We were referred to Abodunrin v. Arabe (1995) 5 NWLR (Pt 393) 77 at 88.
The court was also urged to strike out the name of the 2nd Respondent which was earlier struck out by the lower Court as a party to the suit as there is no appeal against the order striking out the name of the 2nd Respondent.
Arguing issue 1, it was submitted that the complaint by the Appellants that the statement of defence/counterclaim were filed out of time and therefore null and void is a fresh issue that was never considered by the lower Court.
It was submitted that this court will not ordinarily entertain fresh issues that did not arise from the judgment appealed against except leave of court to raise the issues as fresh issues for the first time on appeal was first sought and obtained. We were referred to Okocha v. Herwa (2001) 16 WRN and Opara v. Omolu (2000) 12 WRN 42 at 51-52.
It was submitted that even though this court granted the Appellants leave to argue Grounds 12, 13, 14, 15 and 16 as fresh issues, the Appellants in reality will not be able to argue them now because the record of appeal is not comprehensive and exhaustive on the fresh issues intended to be argued. It was submitted that the record of appeal as compiled by the Appellants was not comprehensive enough and this court cannot decide issues raised in Grounds 12-16 without calling in aid fresh or additional evidence. The Appellants, it was submitted, failed to call for further or fresh evidence needed in resolving their fresh complaint. It was submitted that the Appellants had put the date of service of the statement of claim on the Respondents in issue and they are expected to furnish the court with the exact date they served the Respondents their statement of claim. They are also expected to include in the record the proof of service of the statement of claim on the Respondents to show with precision, the date the appellants’ original statement of claim was served.
It was submitted that these are hard facts and material evidence that must of necessity be included in the record. It was submitted that the fact that the Appellants failed in their duty to provide facts and materials and will therefore be resorting to speculation was evident from their Notice of Appeal as amended. That in paragraph 12 of the amended Notice of Appeal in the particulars supplied, the Appellants stated thus:
“That the statement of Defence must have been served on Respondent at least on 2/11/2009”
It was further argued that these uncertain and ambiguous particulars were further based on another assumption and speculation that because the Respondents’ statement of Defence and Counterclaim is dated 2/11/2009, then the Appellants Statement of Claim must have been served on the Respondent on or before 2/11/2009.
It was submitted that this court cannot consider the issue in the absence of facts as to the exact date of service of the Appellants’ statement of claim on the Respondents so as to compute with precision whether the Respondents filed their statement of defence and counterclaim out of time.
It was submitted that the record of appeal having not contained all the necessary facts, evidence and materials that will enable the court entertain and resolve the complaints of the Appellants in the issue under consideration; the court does not have the competence to entertain issue 1. This is because the court cannot go outside the record in resolving any issue or complaint.
Reliance was placed on the following cases: Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (Pt.109) 250 at 281; Udo v. C.R.S. Newspaper Corp (2001) 14 NWLR (Pt.732) 116 at 165-166; Adisa v. State (1991) NWLR (Pt.168) 490 at 800 and Julius Berger Nig. Ltd v. Femi (1993) 5 NWLR (Pt.295) 612 at 620.
On issue 2, learned counsel for the Respondents submitted that the Appellants did not challenge the manner of appearance of the Respondents but took critical steps by filing their reply to the statement of defence and counterclaim and participated in the proceedings from the beginning to the end and in all these, the Appellants were represented by counsel.
It was submitted that non filing of a memorandum of appearance is at best an irregularity capable of being waived by the party complaining of the irregularity and that the Appellants did not complain within a reasonable time before taking any step or further steps upon becoming aware of the irregularity. The court was referred to Order 2 Rules 1 – 3 Ondo State High Court (Civil Procedure) Rules 1987.
It was submitted that by Order 2 Rule 1 of the High Court (Civil Procedure) Rules 1987 of Ondo State, any complaints of non-compliance with the said Rules as to manner, form, time and content is regarded as mere irregularity. It was submitted that complaining or applying within a reasonable time upon becoming aware is to enable the other party regularize or cure the irregularity since it is curable. We were referred to Duke v. Akpabuyo L.G. (2005) 19 NWLR (Pt.959) 130 at 143.
It was submitted that assuming without conceding that the Respondents did not file a memorandum of appearance, it is too late in the day for the Appellants who have waited until the Respondents lost the opportunity of curing what was otherwise curable. The Appellants, it was submitted are estopped from complaining and will be deemed to have waived any perceived irregularity particularly when they have not shown any miscarriage of justice or any loss as a result of the irregularity. Also the Appellants have not shown how the failure to file memorandum of appearance would have affected the substance of the trial or the merit of the case. We were referred to Edam v. Cannon Ball Ltd (1998) 6 NWLR (Pt 553) 298 at 311, Emecheta v. Oguneri (1996) 5 NWLR (Pt 446) 227 at 242-243 and Bawa v. Balarabe (1999) 6 NWLR (Pt.605) 61 at 69.
It was submitted that a party protesting an irregularity must complain before taking any fresh or further steps upon being served with the irregular process.
On issue 3, it was submitted that the Appellants treated it as if it was an issue of sale of family land per se thereby losing sight of the requirements and basis of specific performance which was the basis on which the Respondents counterclaim was granted. The lower Court, it was submitted, enunciated the principles of specific performance and the basis upon which it granted the Respondents’ counterclaim which was founded on specific performance. The court was referred to the findings at pages 86, 85 and 87 of the record which are not challenged on appeal.
It was submitted that reference to non-existence of valid sale and absence of sale agreement executed by the 1st Plaintiff are irrelevant to the doctrine of specific performance.
It was submitted that the findings by the lower Court that there was part-performance on the part of the Respondents and that the 1st Plaintiff as the head of the Plaintiff family consented to the transaction are well borne out of the Record of Appeal.
The 1st Appellant, it was submitted, consented to the transaction by conduct. That the 1st Appellant admitted that their claim was for N100,000 arrears of rent but admitted collecting N1million. DW2 said he issued Exhibits D4 and D5 on behalf of the Appellants. Exhibits D4 and D5 are receipts for N1million and N3million which strengthen the claim of the Respondents that they paid N4million in part performance of the agreement to sell the land in dispute to them by the Appellants.
The name of the 2nd Respondent was struck out from the suit at the lower Court. See page 71 of the record of appeal. As there is no appeal against the order striking out the name of the 2nd Respondent, I agree with learned counsel for the Respondent that the order subsists and that the 2nd Respondent was erroneously made a party to the appeal.
Where no issue for determination is formulated from a particular ground of appeal, that ground of appeal is deemed abandoned by the Appellant and would be struck out. See the decisions of this court in A.N.P.P. v. I.N.E.C (2004) 7 NWLR (Pt.871) 16 and Gayero v. Mainasara & Sons Ltd (2006) 8 NWLR (Pt.982) 391 and that of the Supreme Court in Bhojsons Plc v. Daniel Kalio (2006) 5 NWLR (Pt.973) 330. I agree entirely with learned counsel for the Respondent that no issue was formulated from grounds 1, 3-11, 17, 18 and 19. They are therefore hereby struck out.
A breach of a rule of practice and procedure can only render a proceeding irregular and not a nullity.
And it is the duty of counsel to take the point of irregularity in the proceedings as they occur.
Any application to set aside for irregularity any proceedings or judgment, shall not be allowed unless made within a reasonable time and before any further or fresh step is taken in the proceedings. See: Order 2 Rules 1-3 of the High Court (Civil Procedure) Rules 1987 of Ondo State, Agbakoba v. I.N.E.C. & Ors (2008) 18 NWLR (Pt 1119) 489, Niger Benue Transport Co. Ltd v. Narumal & Son Ltd (1986) 4 NWLR (Pt.33) 117. Undoubtedly, the complaint of the Appellants cannot be said to have been raised when the irregularity occurred. After the filing of the process complained of, both parties proceeded to adduce evidence in support of their respective cases and addressed the court. Thereafter, the lower Court delivered a considered judgment. It is therefore too late in the day for Appellants to now allege that the statement of claim and defence to counterclaim were filed out of time. This was a complaint that ought to have been made at the lower Court before any further steps were taken by the Appellants like proceeding to call evidence in proof of their case and addressing the court. Failure to take the point of irregularity when it occurred amounted to a waiver of the right to complain.
Apart from this, material upon which the issue can be determined is not before this court. The proof of service of the statement of claim on the Respondent is not before the court.
For the foregoing reasons, issue 1 is resolved in favour of the Respondent.
The complaint on issue 2 is that the Respondent did not enter appearance and that the statement of defence and counterclaim have not been filed in accordance with the Rules. We were referred to Order 13 of the Ondo State High Court (Civil Procedure) Rules 1987. Arguments in support of issue 1 were adopted for issue 2.
A breach of a rule of practice and procedure can only render a proceeding irregular and not a nullity and it is the duty of counsel to take the point of irregularity in proceedings as they occur. See: Agbakoba v. I.N.E.C (supra). The Appellants were represented by counsel. If no memorandum of appearance was filed by the Respondent, the complaint ought to have been made as it occurred at the lower Court instead of making it belatedly on appeal. Instead of making the complaint, the Appellants proceeded to file a reply to the statement of defence and counterclaim, even filed and argued a motion for amendment of statement of claim, prosecuted their case by calling witnesses and addressing the court. They thereby waived their right to complain of any irregularity which did not render the proceedings and judgment of the lower Court a nullity.
For the foregoing reason, issue 2 is also resolved in favour of the Respondent.
The crux of the complaint on issue 3 is that the Respondent failed to establish that the consent of the head of the Oloba Royal Family was sought for and obtained in the alleged transfer of title.
In a contract for sale of property particularly land where part payment was made, the law is that the contract for the purchase has been concluded and is final, leaving the payment of the balance of the purchase price outstanding to be paid. The contract for the sale and purchase is absolute and complete for which each party can be in breach for non-performance and for which action can lie for specific performance. See the decision of this court in Gege v. Nande (2006) 10 NWLR (Pt.988) 256.
Inspite of the following findings of the lower Court, the Appellants still contend that the head of the family did not consent to the transaction. At page 77 of the record of appeal, the lower Court stated thus:
“I find that the 1st plaintiff agreed to the transaction that has brought the parties to this court and he is proved to be the head of the plaintiff family. I also hold that the 1st plaintiff part-took in the sharing of the proceeds of the agreed sale of the land in dispute.”
The lower Court reiterated at page 78 of the record of appeal thus:
“I believe the oral testimony of DW1, DW2 and DW3 that the plaintiffs agreed to sell the land in dispute to the 1st defendant at a price of N7 million and that the sum of N4 million had been paid by the 1st defendant to the plaintiffs out of the purchase price agreed upon by the parties. I also hold that the 1st defendant has proved that 1st plaintiff – who is the head of the plaintiffs’ family – had knowledge of, and consented, to the sale of the land in dispute aided by principal members of the family including DW2 and DW3. I also hold that the members of the plaintiffs family shared the sum of N4 million paid in respect of the agreed sale of the land in dispute.”
The above findings in my view were supported by the evidence before the lower Court. At page 23 of the record of appeal, the 1st Appellant (PW1) stated that the Respondents attended the family meeting of the Plaintiffs at which they offered to buy the land. The PW1 admitted receiving N1 million even though their claim was for N100,000 (One Hundred Thousand Naira) rent from 1st June 2007 to 1st June 2011. The N1 million could therefore not be for rent. PW1 and PW2 denied payment of another N3million even though Exhibits D2 and D3 letters written to PWI show that N4million was paid by the Respondents for the purchase of the quarry leaving a balance of N3million. He admitted receiving the said Exhibits D2 and D3. I agree entirely with the lower Court that failure to reply Exhibits D2 and D3 by the Appellants amounted to admission of the fact that N4million had been paid as part payment for the purchase of the land as agreed by both parties at a family meeting. The Appellants pleaded the minutes of the family meeting. I agree with the finding of the lower Court that if the minutes of the family meeting had been tendered, they would have shown that both parties agreed to the sale of the land. See Section 149(d) of the Evidence Act.
There are also receipts, Exhibits D4 and D5 being payment for the land by the Respondent, issued by the family of the Appellants. DW2, a member of the Appellants’ family stated that there was negotiation and a price agreed upon. He himself delivered the sum of N1million and the cheque for N3million to the PW1 (1st Appellant). He later withdrew N2million on the instruction of the PW1 which was given to the PW1. DW3, another member of the Appellants’ family stated that the land was sold and that the initial N1million was shared with PW1 taking half of the total sum.
On the above evidence particularly the fact that PW1 took half of the N1million initially paid, it would be idle to suggest that he did not consent to the sale of the land.
From the foregoing, I am of the view that issue 3 should be resolved in favour of the Respondents. I accordingly resolve the said issue in favour of the Respondent.
All three issues having been resolved in favour of the Respondent, the appeal should be dismissed. It is dismissed by me.
The judgment of Adegbehingbe J. delivered 6th July 2011 is affirmed by me.
Respondent is awarded N30,000 costs to be paid by the Appellants.
SOTONYE DENTON-WEST, J.C.A.: I agree
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree that this appeal be dismissed.
Appearances
O. Olubodun (Mrs) with M.I. Ejide, A.K. Kosuko and E.A. OgunbayoFor Appellant
AND
A. Oso with Oni Abel and K.I. OyiboFor Respondent
