JONAS AMADI v. KENNETH OBIAJUNWA (2016)

JONAS AMADI v. KENNETH OBIAJUNWA

(2016)LCN/8428(CA)

In The Court of Appeal of Nigeria

On Thursday, the 24th day of March, 2016

CA/OW/335/2010

RATIO

CONTRACT: VALIDITY OF CONTRACT: WHAT CONSTITUTE THE ESSENSIALS OF A VALID CONTRACT

Contrary to the submissions of the Learned Counsel for the Appellant the origins of the transactions have demonstrated that there was a valid and subsisting contract between the Respondent and the Appellant’s mother nay the Appellant who has now stepped into his mother’s shoes.
In line with the decisions in HELP (Nig) Ltd V. Silver Anchor (Nig) Ltd (supra) and Orient Bank (Nig), the Supreme Court in the recent case of BILANTE International Ltd V. NDIC (2011) LPELR -78 (SC) per Fabiyi, JSC at pages 15-16 paras E-B, explained the essentials of valid contract as follows:
“To constitute a binding contract between parties, there must be a meeting of minds often referred to as consensus ad idem. The mutual consent relates to offer and acceptance/an offer is the expression by a party of readiness to contract on the terms specified by him which if accepted by the offeree gives rise to a binding contract. The offer matures to a contract where the offeree signifies a clear and unequivocal intention to accept the offer. See Okugbule & Anor V. Oyagbola & Ors (1990) 4 NWLR (Pt. 147) 723.
It should be reiterated in order to establish that parties have formed a contract, there must be evidence of consensus ad idem between them. Then if there is a stipulated mode for acceptance of the offer, the offeree has a duty to comply with same. See Afolabi V. Polymera Industries (1967) 1 ALL NLR 144. The acceptance must correspond with the term of the offer. If it purports to qualify the offer, it may amount to a counter offer and not an acceptance. It may amount to rejection of offer. It may also destroy the offer?. PER. IGNATIUS IGWE AGUBE, J.C.A.

CONTRACT: NATURE OF CONTRACT; ELEMENTS OF A BINDING CONTRACT

Earlier at page 15 paras B – D the Emeritus Law Lord had defined a contract to mean an agreement between two or more persons which creates an obligation to do or not to do a particular thing. Its essentials are competent parties, subject matter, a legal consideration, mutuality of agreement and mutuality of obligation Lamoureu V. Burriville Racing Assn 91 R.194, 161A, 2d 213, 215 refers. PER. IGNATIUS IGWE AGUBE, J.C.A.

LAND LAW: EQUITABLE INTEREST; WHETHER PART OR FULL PAYMENT AND POSSESSION ENTITLES THE BUYER TO EQUITABLE INTEREST IN A PROPERTY

To lay these issues to rest, I need just cite the authority of Ohiaeri V. Yussuf (2009) 37 NSCQR 634 at 651 paras E-G, 652 paras A-H and 653 paras A-C. There Tabai, JSC delivering the lead Judgment of the Apex Court at page 651 paras e-g where a similar scenario as in this case played out, reasoned firstly thus:
“The established legal principle is that where there is an agreement of sale of land either under native law and custom or any other mode of sale and for which the purchaser, acting within the terms of agreement, makes full or part payment of the purchase price to the vendor and is in furtherance thereof put in possession, he has acquired an equitable interest in the property and which interest ranks as high as a legal estate and cannot be overridden by a subsequent legal estate created by the same vendor or his legal representative in favour of another person.”
In so holding, His Lordship relied on the dictum of Nnamani, JSC in Ayinla V. Sijuwola (1984) N.S.C.C 301 at 312, who also relied in the enunciation of this principle of law on Amao Vs. Adebona (1962) L. L. R. 125; t. a. Orasanmi Idowu (1959) 4 F.S.C 40; Soremekun V. Shodipo (1959) L.L.R 30, Registered Trustees of Muslim Mission Hospital Committee v. Oluwole Adegbo (1992)2 NWLR (pt. 226) 670 at Page 706; where it was held that the emphasis is the payment of the agreed full or part of the purchase price, coupled with possession by the purchaser.
Accordingly, the Learned Emeritus Law Lord continued at page 653 paras A-C that:
“And I hold the view that possession in this con includes constructive possession. It is in evidence that the Respondent would have been in physical possession but for the fact that the 3rd Respondent/Vendor was still there. See evidence of the PW2 at page 91 line 16-17 of the Records. Ordinarily therefore, the agreement for sale in Exhibit “A” being one upon which the 2nd Respondent paid the purchase price coupled with his constructive possession of the land, entitles him to an equitable interest strong enough to defeat any subsequent legal estate created in favour of the 3rd Defendant/ Appellant.” I am of the firm view that since the facts of this case are almost on all fours with the Supreme Court case above cited, the Respondent by the combined effect of Exhibits “A”, “B” and “D” which are the Agreement for sale subject to which payments were made instalmentally and recorded in Exhibit “B” and when the final instalment was paid Exhibit “D” was issued, the Respondent resumed constructive possession and would have been in physical possession had the original Defendant and indeed the Appellant, not withheld the title documents from him. The Respondent is therefore seised of the equitable interest in the property which would eventually mature to legal estate upon perfection of his title following the final payment of the instalments of the purchase price for the property in dispute. PER IGNATIUS IGWE AGUBE, J.C.A.

CONTRACT: SPECIFIC PERFORMANCE; THE CIRCUMSTANCES IN WHICH A COURT CAN DECREE SPECIFIC PERFORMANCE

Now under what circumstances can a Court decree specific performance? We shall invite Tabai, JSC again at page 658 paragraphs D-G (2009) 37 NSCQR; of same DR. Benjamin Ohiaeri V. Alhaji B.I Yussuf & Ors to answer that question where he posited inter alia:
“An action for specific performance arises once there exists a contract coupled with circumstances which make it equitable to grant a decree of same. This being a contract for the sale of land attracts a greater justification for a decree of specific performance because as opposed to other types of contract, the land may have special and perculiar value to the purchaser. The Plaintiffs/Respondents have therefore every justification to claim for specific performance. With respect to the 3rd Respondent, she must do equity for equity looks on that which is done as ought to be. Put in another way, equity inputes on her an intention to fulfil an obligation and the obligation is for her to specifically perform”.
See also Ezenwa V. Oko & Ors (2008) LPELR -1206 (SC) where Onnoghen JSC relying on Obijuru V. Ozims (1985) 2 NWLR (pt.6) 167 at 179; on the same principle held that in cases where there is a subsisting contract or agreement for sale of land or lease of land (as in this case), the Court being also a Court of equity is always inclined to grant specific performance because the land being sold or leased may have a perculiar value of significance to the Purchaser or Lesse particularly where it is a choice land in a busy commercial centre of the town, as in the instant case. See further Best Nigeria Ltd V. Blackwood Hodge (Nig) Ltd. (2011) LPELR -776 (SC) 42 where the Supreme Court per Adekeye, JSC relying on Gaji V. Paye (2003) 8 NWLR (Pt. 583), held that an order of Specific performance being an equitable remedy which is granted to a successful litigant constraining the losing party to carry out the agreement which he had entered into with the successful litigant, like all equitable remedies it is discretionary which discretion must be exercised judicially and judiciously and discretely balance the interest of parties. Eronini V. Iheuko (1989) 2 NSSC (pt. 1) 503, 513; (1980) 3, SC 30 and University of Lagos V. Olaniyan (1985) 16 NSSC (pt. 1) 98, 113 refer. Going by these authorities, since the Respondent went to the extent of selling his house in Kano to pay for the house in dispute which is situate at a Choice location in Owerri Metropolis, no amount would compensate him for the loss he would suffer if specific performance was not ordered. I therefore hold even on the authority of HELP (Nig) Ltd V. Silver Anchor (Nig) Ltd (2006) LPELR-1361 (SC) P-7, paras E-F Per Kastina-Alu, JSC, cited by the Appellant that the Court below exercised its discretion judicially and judiciously taking into consideration the perculiar circumstances of the case when it granted the order of specific performance in favour of the Respondent. PER IGNATIUS IGWE AGUBE, J.C.A.

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria

Between

JONAS AMADI Appellant(s)

AND

KENNETH OBIAJUNWA Respondent(s)

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): This Appeal is sequel to the Judgment of the Hon. Justice U. D. OGWURIKE then sitting at the Owerri Judicial Division of the Imo State High Court of Justice which Judgment was delivered on the 22nd day of January, 2010 granting the Plaintiff (now Respondent) all his Reliefs except the 4th which was refused.

It would be recalled that the Respondent as Plaintiff in the Lower Court in both his Writ of Summons and Statement of Claim dated and filed on the 23rd day of June, 1995 sought for the following Reliefs against Mrs. Evelyn Amadi (now deceased):-
1. A declaration of Court that the Plaintiff actually paid for and bought the property and building known as Plot 336A Amakohia/Akwakuma Layout, registered as No. 79 at page 79 in Volume 237 of the Lands Registry, Owerri from the Defendant.
2. An order of Court on the Defendant to release all the Original Documents of the building and property to the Plaintiff.
3. Perpetual injunction restraining the Defendant or his Agents from exercising any act of ownership or landlord over the

property.
4. Order of Court for complete account and handover of all rents collected from the house with effect from the 3rd day of June, 1993, until the Suit is determined.? See pages 1 – 4 of the Records.

Upon being served with the originating Processes, the original Defendant (now deceased) filed her Statement of Defence on the 6th day of February, 1997. The Plaintiff was granted leave to file an Amended Statement of Claim on 2/6/98 and a Further Amended Statement of Claim after the Defendant had filed her Reply to the Amended Statement of Claim on 16th day of February, 1999. The Application for Further Amended Statement of Claim was granted by the Court below on the 6th of February, 2001. Issues having been joined, and hearing commenced with the Plaintiff testifying as PW1, by agreement of Learned Counsel for the parties the case was adjourned to the 12th and 13th December, 2002 for continuation. Before the PW1 could conclude his evidence, the original Defendant died and was substituted by the present Defendant (now Appellant) and it was not until the 13th day of January, 2006 that the learned Counsel concluded the

cross-examination of the PW1.

On the 26th day of July, 2006 PW2 (D. O. Agbo Esq) was called and was cross?examined on the 21st day of May, 2008 after which the Defendant/Appellant tesfied on the 11th day of July, 2008 and was cross-examined on the 11th day of March, 2009, without calling any Witness. At the close of the case of the parties, their respective learned Counsel exchanged Written Addresses which were adopted on the 30th day of September, 2009 and the case was adjourned to Wednesday 11th November, 2009, for Judgment but because of the long strike by Judiciary Staff Workers it was not until the 22nd day of January, 2010 that the Judgment culminating in this Appeal was delivered.

The Notice of Appeal with Three (3) Grounds dated and filed on the 12th day of April, 2010 can be found at pages 161 to 164 of the Record of Appeal. Reproduced below are the Grounds of Appeal with their respective particulars:
?GROUNDS OF APPEAL:
GROUND ONE:
The learned Judge of the trial Court erred in law when she held that ?the plaintiff is entitled to an Order of specific performance of the agreement by the Defendant evidence in

Exhibit “D” .
PARTICULARS OF ERROR:
a. An order for specific performance presupposes that there is a valid contract existing between the parties to the contract which can be enforced by specific performance.
b. That Defendant (Jonas Amadi) was not a party to the alleged contract that led to this suit and he denied knowledge of the purported transaction between the Plaintiff and Evelyn Amadi.
c. It is trite law that only parties (not strangers) to a contract can sue or be sued on the contract.
GROUND TWO
The learned Judge of the trial Court erred in law when she failed to strike out this Suit for lack of Jurisdiction.
PARTICULARS OF ERROR:
a. one of the conditions necessary for the exercise of Court’s jurisdiction is that proper parties must before the Court.
b. Evelyn Amadi, the original Defendant in this suit died during the pendency of this suit and her name was substituted with that of Jonas Amadi when there is no evidence that he was issued with Letters of Administration or Probate.
c. The Plaintiff has no legal right to join Jonas Amadi as Defendant in this suit without

ascertaining that Letters of Administration or Probate exists.
d. It is trite law that upon death, the deceased real property devolves on her estate and only the Administrators of her Estates or any person issued with Letters of Administration can sue or be sued in respect of the Estate of the deceased.
e. A person should not be joined as a Defendant against whom there is no claim by the Plaintiff.
f. When the Court finds that the proper Defendant is not before it, the proper course open to it, is to strike out the action for want of competence.
GROUND THREE
The learned Judge of the trial Court erred in law when she held in the Court’s Judgment in this suit that Exhibit “D” is enough memorandum in writing evidencing and respecting the transaction between the parties for the purchase by the plaintiff of the property now in dispute and that it complied with Section 67(1) of the Imo Sate Law of Property Edict.
PARTICULARS OF ERROR:
(a) Section 67(1) of the Imo State Law of property Edict, 1994 provides thus: save as otherwise provided in this Edict, no action may be brought upon

contract for the sale or other disposition and any interest in land, unless, the Agreement in which such action is brought or some Memorandum or Note therefore is in writing and signed by any party to be charged or by some other person there unto by him lawfully authorized”.
(b) the only document tendered by the Plaintiff in this suit as a sale Agreement was expunged from the Court’s Records for being inadmissible evidence.
(c) Exhibit “D” was tendered in this suit as a payment Receipt and it bears the Office stamp of the Plaintiff’s Lawyer, D. O. Agbo, Esq who testified as PW2. It was tendered as an Agreement for sale of land.
(d) A purchase Receipt does not operate to pass legal title on a property.
“RELIEFS SOUGHT FROM THE COURT OF APPEAL:
a. To allow the Appeal.
b. To set aside the Judgment of the trial Court delivered on the 22nd January, 2010 in suit No. HOW/344/1995
c. To strike out suit No. HOW/344/1999”.

Upon transmission of the Record of the Appeal to this Honourable Court, the learned Counsel for the respective parties exchanged their Briefs of Argument which each

adopted on the 25th day of January, 2016 to urge us either to allow the Appeal or dismiss same. In the Brief of Argument settled by Ernest O. Nwagwu, Esq on behalf of the Appellant which Brief dated 5th February, 2014, was filed on the 6th of February, 2014; three (3) Issues couched in the following terms were distilled for determination:-
1. WHETHER THE PLAINTIFF/RESPONDENT MADE A CASE FOR AN ORDER OF SPECIFIC PERFORMANCE WHICH IS THE PURPORT OF THE JUDGMENT OF THE LOWER COURT?
2. WHETHER THE TRIAL COURT HAS JURISDICTION TO CONTINUE WITH THIS CASE AFTER THE DEATH OF THE ORIGINAL DEFENDANT?
3. WHETHER THE TRIAL COURT’S DECISION THAT EXHIBIT “D” IS ENOUGH MEMORANDUM IN WRITING EVIDENCING AND RESPECTING THE TRANSACTION BETWEEN THE PARTIES FOR THE PURCHASE BY THE PLAINTIFF/RESPONDENT OF THE PROPERTY NOW IN DISPUTE AND THAT IT COMPLIED WITH SECTION 67(1) OF IMO STATE LAW OF PROPERTY EDICT 1994 IS PROPER IN LAW?

On the other hand, N.B.E. Nwigwe Esq, who settled the Respondent’s Brief, nominated a single issue as shall be shown anon. Before delving into the arguments of the Issues, it is apt at this

Juncture to have a resume of the facts of this case as stated by the parties. The case of the Plaintiff (now Respondent) from his pleadings is that he was introduced to one Mr. Onoh by One Mr. C. Anuforo, the D.C.O. Owerri then at the Senior Police Officers Mess, Owerri. That introduction led to the Respondent being introduced to the late Mrs. Evelyn Amadi as the owner of the house?Plot No. 356 A, Amakohia/Akwakuma Layout, Owerri which was purportedly on sale, by the said Mr. Onoh. Prior to the introduction of the Respondent to late Defendant, Mr. Onoh had been coming to the Respondent and relating with him as a friend such that when on the 5th day of December, 1992 the said Onoh walked into the Respondent?s chalet at the Police Officers Mess where the Respondent then resided and disclosed to the Respondent the news of his Onoh?s mother in-law?s intention to sell her house, the Respondent suspected no foul play but only relayed to Onoh his (Respondent?s) financial inadequacy.

The said Mr. Onoh however made the Respondent believe that the deceased Defendant would accept instalmental payments after an initial deposit and on

the strength of the foregoing, the said Onoh and Respondent proceeded to Amakohia, the home of the Deceased Defendant and met the Deceased and her daughter Georgina and son Jonah (the present Appellant) all seated and all parties haggled for a price of N360,000.00 to be paid instalmental. The Deceased and her children were said to have brought a lawyer who was to transact the business on their behalf while the Respondent (a Policeman) felt very safe particularly, as Mr. Onoh who was then living with the Deceased and children was quite friendly with him after being introduced to the Respondent.

The lawyer who was brought was the PW2 (D. O. Agbo Esq) whose office was then at Wetheral Road, Owerri and in his presence the Plaintiff and trio bargained for the price until they all settled for N360,000. 00 (Three Hundred and Sixty Thousand Naira) with further agreement with Barrister Agbo who offered to be the lawyer for all the parties. Subsequently, the said D. O. Agbo Esq, prepared an Agreement for the parties dated 17th November, 1992 embodying the terms of sale. Exhibit ?A? is the said Agreement.

?The payment did not stand as scheduled

because of the Respondent refusal to pay in three installments and it was only when a waiver was allowed that the Respondent commenced payment of N40,000.00 first installment on the 16th December, 1992 as money was available when he sold his house in the North. The said first installment was paid in the presence of the Respondent, deceased Defendant, Onoh, Georgina, the Appellant and Barrister D. O. Agbo at the Respondent?s Chalet in the Police Officers Mess and when D. O. Agbo Esq was no longer coming for all the installments, the Respondent and the deceased Defendant agreed that Onoh should be recording/writing the installments and signing on behalf of the deceased Defendant in the Plaintiff?s Diary which was tendered admitted and marked Exhibit ?B? at the trial. This was after Agbo, Esq had witnessed the first, second and last payments.

?Mr. Onoh was said to have prepared a table of payment and counter- signed such payment on the Plaintiff?s Diary. On the 3rd day of June, 1993, the Plaintiff made the last payment of N18,000.00 (Eighteen Thousand Naira) in the presence of the deceased Defendant, her lawyer Agbo, Esq and the

Appellant and the payment was done by the Respondent counting the money and handing same to the lawyer who in turn handed the money to the deceased Defendant but this time in the absence of Onoh as he travelled to Lagos.

According the Respondent, all these installments were either made in the Respondent?s residence, office at Owerri and other residences and offices as he (Respondent) was transferred during the period but the last payment was in the Defendant?s house and the lawyer was then asked to prepare the Agreement upon which the other ceremonies would be performed.

?However, as the transaction was concluded and a date taken for the signing of the Agreement, the Deceased Defendant then gave the Respondent a letter from Onoh, stating that the Respondent was owing the said Onoh the sum of N200,000.00 (Two Hundred Thousand Naira) which Respondent borrowed from him (Onoh) and that until Respondent paid the money, the title documents should not be handed over to the Respondent. The said letter which was admitted and marked Exhibit ?C? was said to have been given to him on the 3rd day of July, 1993, when the Respondent went to

be introduced to the Tenants. The Respondent upon being shown the letter by the deceased Defendant, seized same from her as it became clear that Onoh and the deceased Defendant were playing a game on him.

The matter was subsequently reported to the Police and the deceased Defendant was arrested and she made a Statement dated 6th July, 1993 at the State Intelligence and Investigation Bureau (S. I. I. B). In all the payments according to the Respondent, the Appellant Jonah Amadi, was present and sometimes, the deceased Defendant?s daughter Georgina (Onoh?s wife). The Respondent also sold his house in Kano and was receiving payment installmentally and paying the money to the deceased Defendant. The Defendant also refused to release the title documents until she was permitted by her in-law Onoh even after he was issued with a comprehensive Receipt for the entire sum of N360,000.00 (Three Hundred and Sixty Thousand Naira) and same was signed by the Defendant in the presence of Jonah and Barrister Agbo, while her son interpreted same to the said deceased Defendant.

?Subsequently, and after waiting in vain to be given the title documents and

discovered that Defendant and go-between were about to dupe him, he went to the land Registry Owerri and obtained the Certified True Copy of the Certificate of Occupancy of the property which was tendered and marked Exhibit ?E?; hence the Reliefs sought in the Lower Court when it became clear that the Defendant who was substituted by her son (the Present Appellant) was unwilling to handover the property and title Deeds to him.

?Testifying in Court the Plaintiff/Respondent stated that in all the transactions including the Agreement to sell and the payments the late Evelyn Amadi was present along with her son Jonah Amadi (now Appellants) D. O. Agbo Esq (the PW2), Georgina Onoh Nee Amadi the daughter of the deceased Defendant, the go between Mr. Onoh (husband of Georgina Onoh) and himself the Plaintiff/Respondent. He added that before he (Respondent) commenced the installmental payments for the property, he and the deceased Defendant entered into an Agreement for the purchase of the property and in all the documents Evelyn Amadi signed by thumb-printing while her son (now Appellant Jonah Amadi) acted as the interpreter to the Deceased before the

Deceased thumb-printed.

According to the Respondent, Jonah Amadi signed as interpreter to the documents and that the said Jonah Amadi is the same person as the substituted Defendant (now Appellant) and he also answers the names Jonah, Jonas, Jones Amadi and is known by these three names. He is said to put the alphabet ?h? at the end of his name sometimes and sometimes he does not add the letter ?h?. The Plaintiff/Respondent insisted that the Defendant/Appellant was the person who was present in all the transactions and interpreted to the mother before she thumb-printed. He prayed for all the Reliefs sought to be granted him against the Appellant because he (the Appellant is the first son of the Deceased Evelyn Amadi and inheritor (successor?in-title) to Evelyn Amadi.

?Under cross-examination, the Respondent replied that before he brought this matter to Court he reported same to the State C.I.D. and he (the Respondent) made a Statement to the police so did the Deceased Defendant. The present Appellant was also part of his (Respondent?s) report and was also at the Police Station in respect of the report. The Deceased

Defendant was detained by the Police based on the report but the Appellant was not detained and at the time of the report he (the Respondent) was a Police officer but not then Area Commander in Calabar Cross River State as he was only the Assistant Commissioner of Police Operations, Calabar then.

On further cross-examination, the Respondent stated that upon lodging the report at the State C.I.D. Owerri, the investigation was half-way and later dropped pending the arrest of Onoh who had absconded since then adding that he told the Court that late Evelyn Amadi made her statement in 1995 but he (Respondent) could not remember the exact date he made his statement to the Police. He denied that he never made a statement because the Police sent for him to come and do so but he refused to oblige the Police adding that it is also not true that the Police refused to prosecute Evelyn Amadi (deceased) because there was no case made against her.

?On the reason why the said late Evelyn was not prosecuted in any Court the witness explained that the Police was looking for Onoh because Evelyn pushed the whole matter to Onoh her in-law saying that the matter was

between the said Onoh and the Respondent and not hers whereas all the money was paid to her and she finally gave him (Respondent) receipt for the whole money so collected. The police then insisted on getting Onoh to really have a grip of the case and Onoh was on the run and has been on the run and as such investigation could not continue but was suspended.

When further questioned on whether the Police believed the Statement of Evelyn Amadi, the Respondent replied in the negative adding that he was a Police officer for 30 Years and reiterated that the Police did not prosecute Evelyn Amadi then because Onoh was at large and was being looked for. He admitted that it was he who applied and obtained Exhibit ?E? from the Ministry of Lands and Survey but same was not obtained in the course of having the case or within the pendency of the case although he obtained same on the 23rd day of April, 1997.

?When asked whether he owned Exhibit ?A? he replied in the affirmative but added that the PW2 prepared same for both parties as their lawyer and the said Exhibit showed that it was prepared by Barrister Agbo and shows on the face of it as

the said Agbo Esq was prepared to testify to that effect. He mentioned himself, Late Mrs. Amadi, Onoh and the present Appellant as the persons who signed the document (Exhibit ?A?). The Respondent insisted on further cross-examination that the Appellant signed Exhibit ?A? and wrote his name as Jonas Amadi personally. As for Exhibit ?C?, the witness explained upon further question that it was written by Onoh and given to Late Mrs. Amadi to give him (the Respondent) and the signature of Onoh in Exhibit ?C? and ?A? are the same. He denied preparing Exhibit ?A? alone without the consent of either Late Mrs. Evelyn Amadi or the present Appellant as the deceased Defendant and Appellant were parties to the document.

?When it was put to him that Onoh was never a party to the alleged transaction, he replied that the said Onoh was the principal party in all the transactions and that was why he was on the run. As for the exact date Exhibit ?D? was prepared, the Respondent could not remember but admitted that it was not prepared by the Late Evelyn Amadi but by Barrister Agbo for the late

Evelyn and her son, the present Appellant read the contents to her who agreed and thumb-printed the document which is a Receipt for the total payment he (Respondent) made to late Evelyn Amadi.

Asked again whether the late Evelyn and present Appellant were parties to the Diary (Exhibit ?B?) he replied in the affirmative and although he admitted that neither of them signed Exhibit ?B?, he explained that it was an Agreement between himself (the Respondent), and Onoh that Exhibit ?B? should be created to document the amounts paid when ever Barrister Agbo was absent and that only Onoh signed because all parties made him the signatory to all monies paid in the absence of the PW2 (Agbo Esquire). The said Agreement for this documentation was oral.

?When subsequently asked whether he applied and obtained Exhibit ?E? in the course of hearing the matter, from the Ministry of Lands, he answered in the affirmative. When it was finally put to the Respondent by the learned Counsel for the Appellant that there was no transaction whatsoever in respect of the property the subject-matter of the suit between the Respondent,

late Evelyn Amadi and the present Appellant (the Defendant), the Respondent answered that there was a business transaction between him and late Evelyn Amadi which led to his paying for the house the subject of the Suit now on Appeal.

The PW2 D. O. Agbo Esq when called admitted knowing the late Evelyn Amadi (now deceased) as well as the Appellant and that in 1992 one Onoh who paraded himself as the son of the former Civilian Governor of Anambra State (now Enugu State) C. C. Onoh was introduced to him (the PW2) by a friend by name M. C. Chukwuma (now late) at a dry ?cleaning outfit at Egbu. Onoh later came to him ( the PW2) and informed him that he had a friend in the person of the Plaintiff/Respondent and that the Respondent wanted to purchase property of the his (Onoh?s) mother?in-law late Evelyn Amadi. The said Onoh wanted him (the PW2) to settle the Power of Attorney relating to the transaction.

He (the PW2) then demanded from Onoh the particulars of the property as well as the Donor and Donee (that is the particulars of Onoh and Mrs. Evelyn Amadi). The PW2 further testified that he never knew the said Evelyn Amadi (late) and the

Plaintiff before he settled the Power of Attorney with the particulars supplied him by the said Onoh but Onoh informed him that he was going and did take him (the Pw2) to the Respondent in his Guest House at the Police Officers Mess Owerri and introduced the Respondent to him (the PW2) as the Area Commander of Police and that was how he (PW2) came to know the Respondent.

?Onoh told the PW2 who had reason to believe him that the Respondent was his (Onoh?s) very close friend as a result of which the Respondent agreed and pleaded with him (the PW2) after confirming his relationship with Onoh, that he (Respondent wanted him (PW2) around any time the Plaintiff/Respondent paid the installments for the property. That was his (PW2?s) interaction with the Respondent after which Onoh took him (the PW2) and dropped off in his (PW2?s) house at Egbu. According to the witness, initially he never knew the relationship between the Appellant and Evelyn Amadi because the Defendant/Appellant was not in the picture of the transaction but the witness came to know later that the Appellant was the Son of Evelyn Amadi (Late) on the day the last installment for

the property was paid at the house of the said Evelyn Amadi at Amakohia Owerri.

The PW2 further stated that other than the said last installment paid at the house of Mrs. Amadi he was also aware of other installments and recordings of instalmental payments for the property for that anytime the Respondent was ready to pay the installment, Onoh would come to the PW2?s house at Egbu and pick him to the Plaintiff/Respondent?s Guest House at the Police Officers’ Mess Owerri to stay with Respondent while Onoh would go to Amakohia and pick the late Evelyn Amadi to join the PW2 and Respondent at the Officers’ Mess.

Furthermore, the PW2 also recalled that anytime any installments were paid Onoh would collect the money from the Respondent and the said amount recorded in the Plaintiff/Respondent?s Diary by Onoh and Onoh would drive Evelyn Amadi home and then come back to pick him (the PW2) and drop off in his house at Egbu. These happened many times but he (PW2) could not remember how many times the said Onoh came to him from his house for the purposes of those installmental payments for the property by the Respondent.

?The Witness however

disclosed that he accepted to play the role of witnessing the said transactions and installmental payments for the property on the condition of the promises given to him by the Respondent that upon the final payment for the property he (the Respondent) would want him (the PW2) to register the Power of Attorney for him (the Respondent) and possibly manage the property.

It was the witness? further evidence?in-chief that on the day the last installment was to be made Onoh was not available but from what he (PW2) was told by the Respondent, it was Onoh?s instruction that the Plaintiff should pick him (the PW2) to the house of Onoh?s mother ?in-law at Amakohia where the Respondent was to take delivery of the title documents upon payment of the final installment for the property. He testified further that he witnessed all the installmental payments except the last one which was about N18,000.00 (Eighteen Thousand Naira) (an amount he could not remember by-heart except he saw the receipt he issued) and all the said other installments were made at night between 7.00 to 8.00 p.m. at the Plaintiff/Respondent?s Guest House

except the final installment which was paid in the house of late Evelyn Amadi in the day time between 4 to 5.00 p.m.

On getting to the house of Mrs. Amadi, the Respondent asked him (PW2) to prepare a Receipt for the final payment which he obliged and the Plaintiff/Respondent handed over the money to Mrs. Evelyn Amadi at Amakohia and the late Mrs. Amadi after receipt of the final installment for the property, signed the Receipt to acknowledge same. The PW2 at that juncture identified Exhibit ?D? as the said Receipt issued by him for the last installment for the property and added that upon payment of the last installment and acknowledgment of receipt by Evelyn Amadi, the Respondent requested for the title documents to the property but Evelyn Amadi produced a letter purporting to be an instruction left behind by Onoh that the title documents should not be released to the Respondent until the Respondent paid Onoh the amount Onoh claimed the Respondent was owing him.

This development accounted for the remark he (the PW2) made on the back of Exhibit ?D? that: ?Mrs. Evelyn Amadi certifies that although I have collected the

stated sum covered by this receipt, the document of title is to be delivered to the purchaser, and promised that same shall be delivered to him on or before 3-8-93. The content interpreted to the seller by Jona Amadi. *Signed *R.T.P.?

PW2 also identified the said letter (Exhibit ?C?) as that purportedly written by Onoh claiming that the Respondent owed him N200,000.00 (Two Hundred Thousand Naira) only adding that it was at the stage the argument was going on that the present Defendant/Appellant came and introduced himself as the son of late Evelyn Amadi and requested to known what was amiss and when he was told protested that he never was aware of any transaction between the Plaintiff,/Respondent, Onoh and his late mother when she was alive then.

?At that point he (the PW2) started being suspicious that the Respondent was being swindled by Onoh and Evelyn Amadi and he advised the Respondent to get Onoh arrested so as to get to the root of the matter and the Witness got to know that up till the time of giving evidence at the trial Court, Onoh had not been seen or arrested. He finally testified in-chief that he had already told the

Court that upon the brief of Onoh, he prepared the said Power of Attorney in respect of the property and handed same to the said Onoh for the Plaintiff/Respondent who at that stage he had not met. He would not know whether the said title documents including the Power of Attorney had been handed over to the Respondent.

Under cross-examination by the learned Counsel for the Appellant he reiterated that he knew the Appellant for the first time when the Respondent took him (PW2) to the house of the Appellant?s mother at Amakohia for the payment of the final installment and release of the title documents of the property which according to the witness, the Respondent:
?was buying from the Defendant?s in-law, one Onoh by name. It was in that meeting that I met the present Defendant for the first time.?

?When showed Exhibit ?A? and asked whether he prepared it, he answered:
?I cannot say if I prepared Exhibit ?A? because I cannot find my signature on it. I did not prepare Exhibit A the document I prepared which I remember is a Power of Attorney and not Sales Agreement that is Agreement to

Sale.?

On further cross-examination as to whether it would surprise him to hear the PW1?s evidence-in-chief that he (the PW2) prepared the said Exhibit ?A?; the witness was emphatic that:
?I will be surprise because for every document I prepared since becoming a lawyer always bore my signature and stamp. Like I said earlier I prepared a power of Attorney between plaintiff and the mother of the Defendant on the instructions giving (sic) to me one Onoh who introduced the Plaintiff to me in respect of the property subject of this suit. The said Onoh said the Plaintiff was buying the property from the mother of the Defendant who is also a mother-in-law to the said Onoh.?

When further asked whether throughout the transaction involving the said property from his (PW2?s) estimation, it appeared to him that the mother of the Appellant was aware that her property was being sold, he answered in the affirmative adding that the said Evelyn Amadi was aware of the transaction and he (the PW2) formed the Affirmative impression because each time the Plaintiff was going to pay any installment for the property in dispute,

Onoh would drive to his (PW2?s) house at Egbu, pick him up to the Police Officers Mess at Owerri where the Respondent lodged and after dropping him would go and pick his mother?in-law from Amakohia whom Onoh claimed owned the house and after payment would drop them back to their respective abodes.

The witness added that when Onoh brought the Woman to join them at the Officer?s Mess he (the PW2) would be left alone at the reception while Onoh would take Evelyn Amadi to meet the Respondent in his chalet where payments were allegedly made to the woman who claimed to be the owner of the property and mother-in-law to the said Onoh. He explained that the bubble burst when the Respondent took him (PW2) to accompany the Respondent and wife to the house of the Appellant?s mother to make the final payment for the disputed property and after the final payment as aforesaid, and receipt (Exhibit D) issued, the Appellant was demanding to know why they were in his mother?s house and that was where he (PW2) knew the present Defendant/Appellant.

?When the Appellant was eventually told by the Respondent the object of their mission, the

Appellant denied knowledge of the transaction so they all left waiting for the arrival of Onoh.

Upon being further questioned, the Witness reiterated that throughout the transaction except for the last payment, he never saw the Appellant and that each time Onoh went to bring the late Evelyn, they usually came alone without the Appellant and Onoh?s wife who he had never known or seen.

Upon being finally put to him that as he (PW2) waited at the Officers’ Mess reception, while the said Onoh and Evelyn went into the chalet to meet the Respondent, the witness would not know what transpired between the trio of Onoh, Evelyn and Respondent, the PW2 answered:
?I do know what transpired in the Plaintiff?s chalet at the Police Officers’ Mess between the Plaintiff, the Defendant?s mother and Onoh this is because each time the Plaintiff escorts Onoh?s mother-in-law that is the Defendant?s mother, the plaintiff will show me a diary containing record of payment made to the Defendant?s mother that is the mother-in-law of Onoh in the presence of all of them and there is no dispute to that but whether the Defendant?s

mother understood what was going on I do not know because she usually speaks Ibo but I know for sure that payments were made for the property and being receipted.?

In his Defence, Jonas Amadi who testified as DW1 confirmed that he knew Evelyn Amadi his late mother as well the property now in dispute. He denied knowledge of the Respondent and the fact that himself, his late mother, his sister and one Mr. Onoh sold plot 336A Amakohia Akwakuma Layout, where he lived, to the Respondent. The witness further denied ever signing any document acknowledging receipt of money from the Respondent neither did he sign Exhibit ?A? which document was before the Court nor did he sign Exhibit A at all whether as interpreter or anybody else. He claimed that he was seeing Exhibits ?C? and ?D? for the first time in Court while testifying in-chief as it was being shown to him. He also denied signing Exhibit ?E? which is a Certified True Copy of the Receipt used at his house. He further disclaimed giving Exhibit ?B? to the Respondent and urged the Court not to grant the Respondent?s claim because the property in

dispute was his property.

When cross-examined, he admitted that Evelyn Amadi was his mother though dead. He further admitted being her only son but not the only child as he has three sisters one of whom was married to Mr. Onoh but she was no longer living with said Onoh as at the time of proceedings. The witness also admitted inheriting the estate of Mrs. Evelyn Amadi adding that the disputed property is the property he inherited from Evelyn.

When further asked whether before the demise of Evelyn Amadi the disputed property was her personal property, the Appellant also answered in the affirmative.

Upon being put to him that the transaction leading to the dispute took place in 1992, he answered: ? My mother told me that she does not know anything about the transaction?. When further asked how old he was in 1992 he could not tell his exact age then but he was aware that he was over twenty years then. On whether he ever saw the Respondent in their house, he replied that he only saw him when he came to their house to arrest his mother with Policemen.

?The witness further denied being present when the transaction started and was not

present when the last installment was paid if there was any transaction. He disclaimed seeing or reading the letter presented by his mother from Onoh to the Plaintiff stating that the property document be not handed over to the Respondent because Respondent was owing Onoh the sum of N200,000.00 (Two Hundred Thousand Naira). He insisted upon further cross examination that he did not know of anything about the transaction between his mother, Onoh and the Respondent because his said mother also told him that she knew nothing about the said transaction.

As for the many times the Respondent came to their DW1’s house to arrest his late mother, he replied that it was only once. He would not also know whether from 1992 when the transaction took place, Mr. Onoh had come back to Owerri but explained that the marriage between the said Onoh and his sister Georgina was dissolved when the dispute over the property started and his said Appellant?s sister discovered that Mr. Onoh was coming with the Plaintiff/Respondent to sell his (DW1) mother?s house. He denied knowledge of the fact that the Police declared Onoh wanted in respect of the property in

dispute. He also denied that the Police detained his sister whom he admitted is Georgina Amadi, wanted for hiding Onoh.

He further admitted that his said Sister (Georgina) was living with the said Mr. Onoh her husband during the period of the transaction in respect of the disputed property but he would not know where they were living at that time. The said sister no longer lives in Lagos now but with him (the Appellant). The Appellant finally denied that his sister and himself were hiding Mr. Onoh from the Police and Court.
ARGUMENTS OF COUNSEL ON THE ISSUES.
ISSUE NUMBER ONE; “WHETHER THE PLAINTIFF/RESPONDENT MADE A CASE FOR AN ORDER OF SPECIFIC PERFORMANCE WHICH IS THE PURPORT OF THE JUDGMENT OF THE LOWER COURT?”

Arguing this Issue which is distilled from Ground One of the Grounds of Appeal, the learned Counsel for the Appellant referred us to HELP (NIG) LTD VS. SILVER ANCHOR (NIG) LTD. (2006) ALL FWLR (Pt.311) 1833 Ratio 1, and submitted that specific performance order is made where there is an existing valid and enforceable contract. The essential elements of a valid enforceable contract were then enumerated along with the

citation of the case of Orient Bank (NIG.) PLC. VS BLLANDE INTERNATIONAL (1997) 6 NWLR (Pt. 515) 37 Ratio 1 at 79 paras. B ? C; in submitting that in the instant case the Respondent as Plaintiff/PW1 in proof of his case gave evidence of his alleged contract between himself and one Mrs. Evelyn Amadi (late) former Defendant and mother of Appellant and relied on Exhibits A and B. The learned Counsel further submitted that in a fruitless attempt to corroborate the above evidence the PW2 gave evidence on how he was retained to prepare a Power of Attorney in relation to the contract of which there was/is however no evidence of the preparation and execution of the said Power of Attorney by the parties as the said Power of Attorney was not tendered in evidence and PW2 further denied preparing Exhibits A and B thereby, according to Counsel bringing the foundation of the said contract to a complete collapse hence, the Trial Court expunged the said Exhibits at the conclusion of the evaluation of the evidence and attached no weight to them (page 150 of the Records refers.)

Citing again Odutola V. Papersack (Nig.) Ltd. (2007) All FWLR (Pt. 350), it was contended

by the learned Counsel for the Appellant that there could be no valid contract of sale at all if the origin of the contract cannot be legally ascertained by the implication of the Trial Court expunging the said Exhibits A and B . On the reliance placed by the Court below on Exhibit ?D? in granting the Declaratory Relief of the Respondent, that he actually bought the property in dispute, it was further contended that such reliance is untenable in law because the said Exhibit by itself does not and cannot establish the elements of a valid contract vis-a?vis the evidence of the Pw1 and Pw2 which conflict with one another as it is trite law on the authority of Madukolu V. Nkemdilim (1962) SCNLR 341, that you cannot place something on nothing and expect it to stand.

The learned Counsel for the Appellant argued that Exhibit ?D? is a mere purported evidence of collection of money in which no person was mentioned as Agreement entered into by the Respondent and the mother of the Appellant. According to him, in the absence of proof of a formal contract it was wrong to interpret Exhibit ?D? as a contract especially with

Exhibits ?A? and ?B? having been expunged. By interpreting Exhibit ?D? as a contract, the learned Counsel maintained, the Trial Court was indirectly relying on Exhibits A and B otherwise Exhibit ?D? would have been taken as evidence which is neither here not there since it was not the duty of the Trial Court to speculate on any evidence where there it is none. For the above submissions, he relied on the cases of Adesoye Okanlede VS. Afro Continental Nig. Ltd (1996) 7 NWLR (pt. 458) Ratio 6 (S. C.); Fakorede V.A .G. Westem State (1972) I ALL NLR (Pt. 1) 178 at 189; Ikenye V. Ofune (1985) 2 NWLR (Pt. 5) 1 and in particular Adesoye Okanlede V. Afro Continental Nig. Ltd. (Supra) where the Supreme Court held that: ?Courts are not permitted to speculate or make contracts for parties?. Placing reliance again on Help (Nig.) Ltd V. Silver Anchor (Nig.) Ltd. (supra) on the need to consider all the documents together in determining the existence of a contract based on one or two documents, the learned Counsel also took the view that the Court must also consider the conduct of the parties to the alleged

contract in order to determine whether a valid contract was entered into by the parties.

Turning to the evidence of the Respondent regarding Exhibits ?A? and ?B? and what he (the learned Counsel for the Appellant) termed the obvious contradiction of same by the PW2, it was contended that the conduct of the Respondent and his Cohort (Mr. Onoh) lacked bona fides and that it is of no consequence that Exhibit ?D? was prepared by Pw2 (a Lawyer) who said he was hired to prepare a Power of Attorney that was not seen.

Furthermore, the learned Counsel noted, the PW2 also stated in his evidence that he advised the Respondent to get the said Mr. Onoh arrested so as to get to the root of the matter, having discovered that the whole transaction was akin to obtaining by trick. (pages 97 t0 98 of the Records refer).

?On the strength of the evidence before the Court, the learned Counsel for the Appellant maintained, it was wrong for the Trial Judge to have exercised his discretion in favour of the Respondent, who did not prove the existence of a contract between himself, Mr. Onoh and the mother of the Appellant and according

to learned Counsel Judging from the Respondent?s evidence that “Onoh is the principal party”; the mother of the Appellant was ignorant of what transpired. (Page 84 of the Records refers) and according to PW2, the entire scenario shows that the said Mr. Onoh tricked the Respondent and defrauded him.

The learned Counsel to the Appellant also urged us to have recourse to the evidence of the Respondent that the Appellant and his sister were present when the contract was entered into (pages 62, 64, 74,75, 83 and 84 of the Records refer) in contrast with the denial by the Pw2 of their said presence except that the Appellant came into the picture on the day of the last payment (pages 94, 97, 101 and 102 of the Records refer) which by the glaring case of contradiction, the Respondent had failed to prove the alleged contract in its entirety and according to learned Counsel, Exhibit “D” cannot avail him.

Upon the assumption but not conceding that there was a purported contract between the Appellant?s mother and Respondent the Learned Counsel for the Appellant further insisted that Exhibit “D” is lacking in

content of the necessary terms of a valid contract as the contract suffers from some defects such as informality, mistake or illegality which made it invalid or unenforceable and accordingly, the Trial Court on the face of Exhibit ?D? was therefore wrong in its Judgment granting the Order of specific performance in favour of the Respondent. Help (Nig.) Ltd. V. Silver Anchor (Nig.) Ltd. (2006) ALL FWLR (Supra) at page 1843; was further relied upon in submitting that the alleged contract is (sic) concurred based on the evidence of originality in Exhibits ?A? and ?B? and the contradictory evidence of those present when the purported contract was entered into.

From the foregoing submissions, we were urged to resolve the first Issue in favour of the Appellant as the purported contract now Exhibit ?D? from the finding of the Trial Court is shrouded in fraud on the part of the Respondent going by the evidence before the Court.

?ARGUMENT OF LEARNED COUNSEL FOR THE APPELLANT ON ISSUE NUMBER TWO: ?WHETHER THE TRIAL COURT HAD JURISDICTION TO CONTINUE WITH THE CASE AFTER THE DEATH OF THE ORIGINAL

DEFENDANT? (DISTILLED FROM GROUND TWO OF THE GROUNDS OF APPEAL)

On this Issue, the learned Counsel for the Appellant posited that this was a case personal to the Plaintiff/Claimant and the Original Defendant alone bordering on an alleged contract of sale of the disputed property and according to him, the case is not within the class of those cases which will survive either of the parties and the jurisdiction of the Trial Court to try the case stopped at the death of the original Defendant as a matter of law.

According to the learned Counsel for the Appellant, the right of the Plaintiff/Respondent would have been to institute a fresh action which would be shown in his pleadings. Even as the Respondent chose to substitute the deceased Defendant with the Appellant, the learned Counsel for the Appellant noted, the Respondent did not amend his claims and pleadings, which was important because parties are bound by their pleadings. For the above submission, he placed reliance on the Supreme Court decisions in Marcus Ukaegbu & 3 Ors. Vs. Mark Nwokolo (2009) Vol. 169 LRCN at 215 Ratio 3; National Investment & Properties Co. Ltd. Vs. Thompson

Organization Ltd. & Ors. (1969) NMLR 99; Emegokwe Vs. Okadigbo (1972) 1 ALL NLR 192; (1973) 4 S. C. 113; (1973) 3 ECSLR 267; Chief Ibanga & Ors. Vs. Chief Usanga & Ors. (1982) 1 ALL NLR (Pt.1) 88 at 99, (1982) 5 S. C. 103 at 124 & 125 and Akpakpuna & Ors. Vs. Nzeka 11 & Ors. (1983) 7 S – C 1 at 25 at 234 ZEE; to further argue that the death of the sole party affects the life of a suit and the jurisdiction of the trial Court to continue hearing the matter except where substitution of the dead sole party is allowed by law. Learned Counsel for the Appellant argued further that having stated earlier that the Claim of the Plaintiff/Respondent was personal to the Original Defendant, the substitution of the Appellant was wrong in law and the Trial Court lacked the jurisdiction to continue with the hearing of the case notwithstanding the fact that the Application for substitution was not opposed by Counsel to the Appellants.

On the threshold nature and importance of jurisdiction to exercise of judicial power or judicialism of which parties cannot by connivance, acquiescence or collusion confer on a Court where same is lacking, the

learned Counsel referred us to Okolo Vs. Union Bank (Nig) Plc (2004) ALL FWLR (Pt. 197) 981 ratio 2 and F.G.N. V. Oshiomhole (2004) 3 NWLR (Pt.860) 305 Ratio 4 at 324, Para. B. As regards the position of the law also that jurisdiction cannot be waived by any of the parties nor can parties vest jurisdiction where there is none, the learned Counsel for the Appellant also relied on Okolo V. Union Bank of Nigeria Plc. (supra) and Mobil Production (Nig.) Ld. V. Monokpo (2004) ALL FWLR (Pt.195) 575 at 657; to urge us to resolve this Issue in favour of the Appellant notwithstanding the fact that the issue of jurisdiction was not raised at the trial Court as it can be raised at any stage of proceedings.

ARGUMENT OF LEARNED COUNSEL FOR APPELLANT ON ISSUE NUMBER 3: ?WHETHER THE TRIAL COURT?S DECISION THAT EXHIBIT ?D? IS ENOUGH MEMORANDUM IN WRITING EVIDENCING AND RESPECTING THE TRANSACTION BETWEEN THE PARTIES FOR THE PURCHASE BY THE PLAINTIFF/RESPONDENT OF THE PROPERTY NOW IN DISPUTE AND THAT IT COMPLIED WITH SECTION 67(1) OF IMO STATE LAW OF PROPERTY EDICT 1994 IS PROPER IN LAW? ?(DISTILLED FROM GROUND THREE OF THE GROUNDS OF

APPEAL).

Arguing this Third Issue, the learned Counsel for the Appellant in the first place took the view that the learned Trial Judge erred in so holding that Exhibit ?D? is enough memorandum in writing evidencing the transaction between the parties for the purchase of the disputed property by the Respondent/then Plaintiff.

According to him, Exhibit “D” is a mere receipt not tenderable in law without evidential value. He repeated his argument on the First Issue that the history of the transaction giving rise to the said Exhibit “D” having been observed through Exhibits “A” and “B” which were rightly expunged as a sham, robs the said Exhibit “D” of evidential value because it was made malafides and therefore fraudulent. On another score, it was submitted that the finding of the Trial Judge that Exhibit “D” complied with Section 67(1) of the Imo State Law of Property Edict, 1994 is misconceived that any Memorandum in writing in respect of the purchase of land/property whether made in good or bad faith should be evidence of purchase of land/property.

The learned

Counsel on how to know whether the said Exhibit ?D? was made in bad faith urged us once more to have recourse to the foundation of the contract and evidence of the PW2 to the effect that he realized that Mr. Onoh duped the Respondent. Still on Exhibit ?D?, it was argued that same was prepared by another person on behalf of an illiterate without a jurat and on the authorities of SCOA Zaria Vs. Okon (1959) 4FSC 220 and Ituama Vs. Akpeline (2000) 3 NSCQR 69 at 86; is unenforceable as the object of the jurat is the protection of the person from fraud and therefore it is compulsory for the writer of such document to insert the Jurat.

In the light of the foregoing, the learned Counsel veered into the position of law that it is the duty of the trial Court to evaluate evidence but where there is complaint of improper evaluation of documentary evidence/Exhibit or lack of it, the Appeal Court has equal power like the trial Court to evaluate the documentary evidence. For the above submission, he cited and relied on Iyana Vs. Registered Trustees, FCGC (2006) ALL FWLR (Pt. 314) 276, Mafimisebi Vs. Ehuwa (2007) ALL FWLR (Pt. 355) 562 (S.G), to

call on us to evaluate Exhibit ?D? in line with the other pieces of evidence of the PW1 and PW2 in particular.

Still on whether the said Exhibit ?D? complied with Section 67(1) of the Imo State Law of Property Edict, he maintained that it is neither an Agreement upon which action is brought nor memorandum or note thereof and signed by the party to be charged or by some other person thereunto by him lawfully authorized. According to the learned Counsel, the Exhibit is at best a purported receipt for payment as there was nothing therein suggesting some futurity or subsequent happening of event or upon which an act will take place nor is as indicated that it was the mother of the Appellant that had the thumb print thereon and therefore does not meet with requirement of Section 67(1) of Imo State Law of property Edict of 1994.

Finally, we were urged to resolve the Issue in favour of the Appellant and allow the Appeal.

ARGUMENTS OF THE LEARNED COUNSEL FOR THE RESPONDENT.
In paragraph 7. 01 to 7. 04 of the Respondent?s unpaged Brief of Argument, the learned Counsel for the Respondent raised an Issue to Wit;

?Whether the Defendant?s mother sold the property to the Plaintiff as calling for determination in the Appeal which Sole Issue was so argued as follows:
1. That from the evidence of PW2 Agbo Esquire, the woman, the Defendant and Mr. Onoh, her in-laws were working in concert and sold the Property which was why after payment, the woman brought out Onoh?s letter stating that the Plaintiff/Respondent owed the said Onoh the sum of N200,000.00 (Two Hundred Thousand Naira), just to truncate the transaction.
2. The PW2 stated inter alia that: ?Onoh on each payment day will bring me and will go and bring the woman and I will be shown when they signed in the day showing payment?.
3. That PW2 admitted preparing the final Receipt of Payment and Was there when the woman received the last installment and as such he (learned Counsel) wondered what else is a sale.

From the foregoing scenario, learned Counsel for the Respondent urged us to hold that there was a sale and that the Receipt (Exhibit ?D?) is a memorandum evidencing a transaction and not a registrable instrument but shows that a sale took

place. He further urged that the proper order for specific performance which is/was the handing over of the original documents was rightly made following the declaration that there was a Sale.

From paragraphs 8.00 to 11.08, of the Respondent?s Brief of Argument, the learned Counsel for the Respondent replied to the three Issues distilled by the learned Counsel for the Appellant issue by the issue. In respect of ISSUE 1: ?WHETHER THE PLAINTIFF/RESPONDENT MADE A CASE FOR THE GRANT OF AN ORDER FOR SPECIFIC PERFORMANCE BY THE RELEASE OF THE TITLE DOCUMENTS, the learned Counsel for the Respondent pointed out that the learned Counsel for the Appellant did not discuss the first arm of the Judgment of the Court below which is ?I hereby declare that the Plaintiff actually paid for and bought the property and building known as plot 336A Amakohia/Akwakuma layout, Owerri registered as No. 79 at page 79 in volume 237, of the Lands Registry, Owerri, from the defendants.?

?Against the foregoing background, it was submitted by the learned Counsel for the Respondent that the order for specific performance derived its authencity from the

declaration and the Court below was right in so ordering having found that there was a sale and full payment. The learned Counsel alluded to the evidence of the Plaintiff/Respondent as beginning from pages 61 to 65 and continuing from pages 73 to 75 of the Records which was uncontroverted in graphically showing particularly at page 62 thereof that there was offer and acceptance including waiver to allow installmental payments and the payment of the sum of N40,000.00 consolidated the transaction.

?He contended that the payments were further made until the last installment which was in a receipt prepared by the Counsel to the parties Agbo, Esq (the PW2) and accordingly, the Relief for specific performance is the direct flow from the finding that there was a valid sale of the property. He maintained that while the seller is still keeping the documents, the Defendants have signed the Agreement to sell and thumb-printed the Receipt. The learned Counsel rounded up his submission on this Issue by contending that all the legal authorities cited by the learned Counsel for the Appellant are inapplicable because there was a valid enforceable contract which Exhibit

?D? is the Receipt of the final payment as thumb-printed by the seller and Counter-signed by the interpreter, who is the son of the Seller as well as the diary where the installments were recorded as testimony of the transaction.

ISSUE NUMBER 2: ?WHETHER THE TRIAL COURT HAD JURISDICTION TO CONTINUE WITH THIS CASE AFTER THE DEATH OF THE ORIGINAL DEFENDANT

On this Issue, the learned Counsel for the Respondent first posed the question as to ?what is the position of law on substitution which according to him is the key to the Issue. Relying on the facts of the case on the filing of a motion for substitution at page 69 to 70 of the Records which motion was moved at page 71 and granted at page 72 of the Records, he submitted that the Appellant is estopped from raising any issue about his substitution. From the evidence of the PW1 at page 74, the learned Counsel for the Respondent further argued, the said Deceased Defendant?s son (now Appellant) was present during the transactions and signed as an interpreter for his thumb printing mother. Moreover, under Cross ? examination, the learned Counsel

maintained, DW1, Jones Amadi (Appellant and son of the Original Defendant) at page 108 of the Records agreed that Mrs. Evelyn Amadi was his mother and at page 109 further admitted that he inherited the Estate of Mrs. Evelyn Amadi and that the property in dispute is one of and only property of Evenly Amadi inherited by him as well as that the property in dispute being the personal property of Evelyn Amadi.

The learned Counsel for the Respondent therefore urged us to hold that the unopposed substitution was properly done and the Court below exercised its jurisdiction properly by continuing with the hearing and concluding the matter based on the pleadings before the Court and that although the authorities cited by the learned Counsel for the Appellant are good authorities they are inapplicable to this case.

Reacting to ISSUE Number 3 which posed the question ?WHETHER THE TRIAL COURT?S DECISION THAT EXHIBIT ?D? IS ENOUGH MEMORANDUM IN WRITING EVIDENCING AND RESPECTING THE TRANSACTION BETWEEN THE PARTIES FOR THE PURCHASE BY THE PLAINTIFF/RESPONDENT OF THE PROPERTY NOW IN DISPUTE AND THAT IT COMPLIED WITH SECTION 67(1) OF IMO STATE

LAW OF PROPERTY EDICT 1994 IS PROPER IN LAW, it was contended by the learned Counsel for the Respondent that Exhibits ?A? and ?B? were not expunged by the Court but admitted as relevant and showed the history of the transaction and a chronicle of events and the said Exhibits were prepared by the PW2 appointed by parties with his official stamp inscribed there on and the interpreter was the Deceased Defendant?s Son. (now Appellant) with the jurat and thumb-print of the Deceased Defendant also on the said Exhibits.

?Furthermore, the learned Counsel insisted, the Trial Court rightly ruled out Section 67(1) of the Imo State Property Law 1994 as Exhibit ?D? was a memorandum of Receipt and not a Registrable Instrument under the Lands Instrument Registration Law. Furthermore, it was submitted that Exhibit ?D? is the final State of different memoranda evidencing a chronicle of transactions leading to the final receipt which is Exhibit D and there was evidence from the PW1 and PW2 that the Deceased Defendant refused to sign the final power of Attorney which cannot in itself abort the transaction.<br< p=””

</br<

The learned Counsel to the Respondent pointed out that the Agreement to sell, the diary, the letter of one Onoh, the Receipt of final payment and the Certified True Copy of the document of the property confirmed and concluded the transactions and upon the conclusion of the transaction and issuance of Exhibit ?D?, the Court had no other option than to recognize the sale and order specific performance Exhibit being a memorandum of Receipt.

On the contention by the learned Counsel for the Appellant that the document prepared by Agbo, Esq. (the PW2)/Counsel for the parties does not contain illiterate jurat, he submitted that the Son of the Deceased Defendant (now Appellant), acted as an interpreter and administered the jurat and signed and accordingly the document was not caught by the Illiterate Protection Act. In the same vein, he finally argued, all the authorities cited by the learned Counsel for the Appellant do not apply to the present case. We were therefore urged to affirm the findings and decision of the learned Trial Judge and dismiss the Appeal.

RESOLUTION OF ISSUES
In the resolution of the Issues formulated by the learned

Counsel for the Appellant, I intend to take Issues Numbers ONE and THREE together with the Sole Issue formulated by learned Counsel for the Respondent and Issue Number 2 (Two) Separately. However, since Issue Number Two questions whether the Trial Court had the jurisdiction to continue with the case after the death of the original Defendant, I shall first of all resolve that Issue before proceeding to deal with the Other Issues together.

ISSUES NUMBER TWO: ?WHETHER THE TRIAL COURT HAD JURISDICTION TO CONTINUE WITH THIS CASE AFTER THE DEATH OF THE ORIGINAL DEFENDANT

?I must without any hesitation or mincing words, disagree with the learned Counsel for the Appellant that this is not a case within the class of cases which will survive either parties even though the Plaintiff/Claimant/Respondent and the original Defendant (now deceased) entered into alleged contract. With the greatest respect, this case will survive the parties in that it is a contract for the Sale of land which binds successors-in-title, privies, assigns or any personal representatives of the original Defendant. In this case, as has been rightly noted by the learned

Counsel for the Respondent, the deceased Defendant, the Appellant, Mr. Onoh, PW2 Agbo Esq and even Georgina the Appellant?s sister, all worked together/and in concert and sold the disputed property to the Respondent. Besides and to buttress the fact that this action survives the deceased Evelyn Amadi (the Original Defendant), the Appellant who testified as DW1 at page 106 of the Records in his evidence in-chief stated thus:
?My names are Jonas Amadi. I am a trader. I live at No. 22B, Orlu Road Amakohia. I know Evelyn Amadi. She is my mother, she is now late. She is dead. I know plot 336A Amakohia Akwakuma Layout. I know the said Plot 336A because that is where I live?.

Under cross-examination at pages 108 ? 109 of the Records, the following dialogue transpired between him and the learned Counsel for the Respondent:
?Q: Evelyn Amadi is your mother?
?Ans: Yes Evelyn Amadi was my mother
She is now dead.
?Q: Are you the only child of Evelyn Amadi?
?Ans: I am the only son of Evelyn Amadi but not the only child. I have three sisters.
?Q: You inherited the Estate of Mrs.

Evelyn Amadi?
?Ans: Yes.
?Q: Part of the Estate of Mrs. Evelyn Amadi you inherited at her death is the property now in dispute?
Ans: The property now in dispute is the only property I inherited from Evelyn Amadi.
?Q: Before the death of Evelyn Amadi, this property in dispute was her personal property?
?Ans: The property now in dispute was the personal property of Evelyn Amadi before the dispute leading to this Suit.
?Q: You agree that the transaction between Onoh, Mrs. Evelyn Amadi and the Plaintiff took place in 1992?
?Ans: My mother told me that she does not know anything about the transaction?.

From the foregoing answers to cross ? examination, it is dear that the Appellant survived his mother and inherited the disputed property after the demise of his said mother.

Order 11 of the High Court of Imo State (Civil Procedure) Rules, 1988 (now 2008) has made elaborate provisions to cover the peculiar situation the parties in this Appeal had found themselves at the Lower Court. For instance, Rule 3 thereof provides that: ?Any person may be joined as Defendant

against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative. Judgment may be given against one or more of the Defendants as found to be liable, according to their respective liabilities, without any amendment.?
Perhaps the provisions of the Rules that touch directly on the peculiar facts and circumstances of this case are Rules 15, 16 and in particular Rules 34 and 35 which deal with situations where a Defendant is added, a third party is joined by any of the parties and the Rule that the Action is not abated because the original Defendant had died and the action survived her and the position of the Rule that the Court below shall order that the proceedings shall continue between the parties and such new parties.
For the avoidance of doubt Order 11 Rule 15 states that: ?15. Where a Defendant is added or substituted, the originating process shall be amended accordingly and the Claimant shall unless otherwise ordered by a Judge in chambers, file an amended writ and cause the new Defendant to be served in the same manner as original Defendants are served and the proceedings shall be continued

as if the new Defendant had originally been made a Defendant.
“16. Any application to add or strike out or substitute a plaintiff or Defendant may be made to the Court or a Judge in Chambers at any time before trial by motion or Summons, or in a Summary manner at the trial of the action.”
Above all in part B of Order 11 Captioned “Alteration of Parties”, Rules 34 and 35 provide as follows:-
“34. (1) Where after the institution of a suit any change or transmission of interest or liability occurs in relation to any party to the suit or any party to the suit dies or becomes incapable of carrying on the Suit, or in any other way becomes defective or being carried on, any person interested may obtain from the Court any order requisite for curing the defect, or enabling or compelling proper parties to carry on the proceedings.
(2) But any person served with such an order may, within such time as the Court in the order directs, apply to the Court to discharge or vary the Order.”
As regards Rule 40 of Order 11 of the Rules, ….. in the case of the

death of a Sole Defendant, or sole Surviving Defendant, where the action survives, the Plaintiff may make an application to the Court, specifying the name, description and place of abode of any person whom the Plaintiff alleges to be the legal representative in the suit in the place of such a Defendant, and shall issue an order to him to appear on a day to be therein mentioned to defend the suit and the case shall thereupon proceed in the same manner as if such a representative had originally been made a Defendant, and had been a party to the former proceedings.”
See, Akamoju V. Mosololorun (1991) 9 NWLR 236 at 243 (CA), where the Court of Appeal interpreted this Rule to mean that the application for a legal representative of the deceased must be made to the Court at the instance of the Plaintiff and no other; and that the Court, in turn, would approve the application and cause the name of person by the Plaintiff to be notified and ordered to appear on a day to be specified by the Court in order to defend the Suit.
See also Order 13 Rules 4, 29, 30 and 31 of the High Court of Imo State (Civil Procedure) Rules 2008;
In Osuji V. Ogulaji (2002) 16

NWLR (Pt.792) at 136; Nsofor, JCA, with whom Ogebe, JCA (as he then was) and Akpirooh, JCA concurred, interpreted Order 36 Rule 1 of the High Court Rules of Eastern Nigeria, 1963 which was in pari materia and replicated in Rule 34 (1) of the High Court of Imo State (Civil Procedure) Rules, 1988 and held inter alia at pages 148 paras. E ? H and 149 Paras. A – C. after citing and relying on the English case and Delaney V. Delaney (27 Sol. J 418) Per Pearson, J. at 128 ; that:
“The order above (Order 36 Rule 1 (now Order 11 Rule 34) of the 1988 Rules), cured the Suit of the defect that occurred following the death of the original plaintiff the substitute was not initiating an action or suit de novo no. The Respondent was thereby placed in the exact position of the original plaintiff whom he replaced”.

Pursuant to provisions of the Rules above cited and reproduced as well as the authorities relied upon, the learned Trial Judge upon the application of the Respondent dated and filed on the 28th day of April, 2003, sought for the present Appellant to be joined and substituted as a Sole Defendant following the death of Evelyn

Amadi, the Appellant being his only son and survivor. In paragraphs 3 and 4 of the Affidavit in support of the motion for substitution, the Respondent as Applicant deposed to the facts following:-
3. That investigations confirm that she is survived and inherited by Jones Amadi her only son who is of age.
“4. That I seek to substitute the Defendant with her living son and benefactor Jonas Amadi who is resident at the same house subject matter of the dispute, in order to make for continuity of the case until justice is determined and the issues in controversy resolved”. (See pages 69 and 70 of the Records).

On the 5th day of March, 2004, that Application was moved in the presence of the learned Counsel for the Appellant (Mrs. P. U. Okonkwo) and the learned Trial Judge recorded at page 71 lines 23 and 24 of the Records thus:

Court: In the light of the averments in the Plaintiff/Applicant?s affidavit and the facts that this application is not opposed, the application is granted as prayed. The name of the dead sole Defendant on record is hereby substituted with Jones Amadi, the son of the deceased sole Defendant on

record. The Plaintiff/Applicant shall pay the sum of N500. 00 as costs to the Defendant/Respondent.?

After the grant of this Application, the Appellant participated fully at the trial and Learned Counsel on his behalf copiously cross-examined the Respondent and his witness and so did the Appellant testify and was cross-examined and he admitted that he was the only surviving son of Evelyn Amadi who inherited the disputed property. It will therefore tantamount to the highest level of approbation and reprobation and indeed travesty of justice for the learned Counsel to turn somersault and now argue on Appeal that the Court below lacked the jurisdiction to continue with the hearing and determination of the case following the death of the original Defendant.

I am not oblivious of the position of the law as decided by the Supreme Court in Marcus Ukaegbu & 3 ORS. VS. Mark Nwokolo (2009) VOL. 169 LRCN 210 at 215 where the apex rightly held that:?It is long established Court principle of Law, that a party is bound by his pleadings. The Respondent having failed to plead and/or give evidence of the proof of title of Egbereuri, and/or Agbubuo,

that should have been the end of the case.”
The authorities of National Investment & Properties Co. Ltd. Vs. Thompson Organization Ltd. & Ors (1969) NWLR 99; Emegokwue V. Okadigbo (1972) 1 NWLR 192, (1973) 4 S.C.113, (1973) ECSLR 267; Chief Ibanga & ORS. Vs. Chief Usanga & Ors. (1982) 1 ANLR (Pt.1) 88 at 99 (1982) 5 S. C. 103 at 125 and Akpahpuna & Ors Vs. Nzeka II & Ors. (1983) 7 S. C. 1 AT 25, all cited in support of his above submission are all on point on this well settled principle of Law as far as pleadings are concerned. However, with due respect once again, the above authorities were cited out of con and are therefore inapplicable to the facts and circumstances of this case where the Appellant was substituted for his deceased mother who was the original Defendant, without any objection and by the Rules of the Court earlier cited, the Appellant stepped into the shoes of his said mother and was therefore rather bound by the pleadings in the statement of Defence upon which he anchored his case and Judgment was entered by the Learned Trial Judge based on the Issues joined by the Appellant and Respondent.

In the

Supreme Court case of The Registered Trustees of National Association of Community Health Practitioners of Nigeria & Ors. Vs. Medical AND Health Workers Union (2008) LPELR-3196 (S.C) Ogbuagu, JSC ;at pages 73, 74 ? 77 enumerated the circumstances under which a person can be joined either as a Plaintiff or Defendant as in this case. At page 73 Paras. F ? G., the Emeritus Law Lord cited the cases of Peenok Investment Ltd. V. Hotel Presidential (1982) 12 S.C. 1 and Okoye & 7 Ors. V. Nigerian Construction & Furniture Co. Ltd. & 4 Ors. (1991) 7 S.S.N. J (Pt. vi) 365 at 382 ? 383 ; where it was held that the general rule is that the Court may in every cause or matter, deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.
He then posited thus: ?Again, the joinder of parties, whether as plaintiffs or defendants, is subject to two conditions namely, ?(1) the right to relief must in each case be in respect of or series of transactions.
(ii) there must be some common question of law or fact. See the case of Ibigbami V. Military Governor of, Ekiti State

(2004) 4 NWLR (Pt. 863) 243″.
Hitting the nail on the head as far as this present case is concerned, the learned Emeritus Justice of the Apex Court, on why Rules of Court provide for joinder of parties and causes of action cited Egollu & 3 Ors V. Egone & Anor. (1973) 3 ECSLR 664 where it was held that:-
“all those who claim some share or interest in the subject-matter of the Suit, or may be affected by the result, as well as those who the Court may Join suo motu, are necessary parties, for their presence before the Court may be necessary in order to enable the Court, effectively and completely, to adjudicate upon and settle all the questions involved or in controversy. Perhaps see also the English case of Long. V. Crossley (1879) 13 Ch. D. 388 and our Local cases of Coker V. Adeyemo & Anor. (1968) NWLR 323 at 324 and Uku V. Okumagba & Ors. (1974) 3 S. C. 35 AT 60 and Green V. Green (supra).”
His Lordship also referred to the dictum of the learned Sage Oputa, JSC in Green V. Green (1987) 3 NWLR (Pt. 61) 480; (1987) NSCC 1115; (1987) 7 SCNJ 262; where he opined that the only reason which makes it necessary to make

a person a party to an action, is that he should be bound by the result of the action and the question to be settled is such that cannot be effectively and completely settled unless he is a party. Amon V. Raphael Tuck & sons Ltd. (1956) 1 QBD 357 at 380 Per Devlin, J referred.

Going by all the authorities above Cited, there is no doubt that the Appellant who had been substituted for his late mother was bound by the pleadings of his mother as well those of the Respondent, having admitted that he inherited the house in dispute. So also was the Court below by the rules of Court bound by those pleadings as it was unnecessary for the Respondent to commence a fresh Suit against the Appellant who was not misled by the pending claim of the Respondent. See, Okwejiminor Vs. Gbakeji & Anor (2008) LPRLR ? 2537 (S.C.) at 36 Paras. A ? B, Per Onnoghen JSC; (2008) 5 NWLR (Pt. 1079) 172 S. C. (2008) 1 S. C. (Pt. III) 263.

Again, the Appellant cannot rightly argue that the case did not survive the late original Defendant because, should the case be decided as was done by the Lower Court in the absence of the Appellant who claims some share

or interest in the property, and ought to be bound by the outcome or affected by that decision as a necessary party, the Respondent may be subjected to further expense of filing a fresh suit against the Appellant as the original suit against his late mother would not have been effectively and completely adjudicated upon and the question in controversy settled once and for all.

Thus, to obviate multiplicity of actions and the attendant expenses on the parties and waste of judicial time, which is the policy of Courts, it was proper for the Court to have substituted or joined the Appellant. In Chinweze & Anor. VS. Masi (Mrs.) & Anor (1989) 1 NWLR (Pt. 97) 254 at 257, (1989) 1 SCNJ 148 at 156, it was held that the Courts have the duty to prevent the expensive luxury of having two separate suits where it can by joinder, settle the whole matter in one action since the determination of one of the claims between the 1st Defendant will involve and affect the second Defendant (particularly in this case where by the Rules of Court, the decision against the late Evelyn Amadi would have affected the Appellant’s right or interest in the disputed property

adversely); the learned Trial Judge was right to have substituted the Appellant for his mother. See also Oba Joseph Adeyemo Ajayi Vs. Oba Joseph Jolayemi (2001) 3 SCNJ 250 and Onibudo & Ors V. Abdullahi & Ors. (1991) 2 NWLR (Pt.172) 230 at 246 Per Kalgo, JCA (as he then was).

There is this other interesting if not intriguing aspect of the learned Counsel for the Appellant’s argument that the death of the original Defendant affected the jurisdiction of the trial Court to continue the hearing and determination of the suit now on Appeal as the substitution of the Appellant was wrong in law. According to him, the learned trial Judge lacked the jurisdiction in substituting the Appellant notwithstanding the fact that the learned Counsel for the Appellant did not oppose the application for substitution or joinder.

There is no doubt that jurisdiction is the life blood and font et origo of the exercise of judicial power and that, being the threshold of judicial power and judicialisim and by extension extrinsic to adjudication, parties cannot either by connivance, acquiescence or collusion confer same on a Court that is not seised of such

jurisdiction. The cases of Okolo V. Union Bank of Nig. Plc (2004) ALL FWLR (Pt. 197) 981 F.G.N. Oshiomhole (2004) 3 NWLR (Pt. 86) 305 at 324 para. B. and Mobil Producing (Nig.) Ltd VS. Monokpo (2004) ALL FWLR (Pt. 195) 575 at 657 ; are all on point on the principle of our law that lack of jurisdiction cannot be waived by one or both parties when none exists.

However, contrary to the submissions of the learned Counsel for the Appellant and as we had held earlier, the case was survived by the Appellant who was rightly joined by the Court below without objection. The Appellant was a proper party who substituted his mother because he had an interest or right of inheritance to the said property in dispute between the Respondent and the Appellant as the Suit was constituted.

The Supreme Court had cause to pronounce on the question of jurisdiction of a Court as far as parties before it are concerned in the case of COTECNA International Ltd. V. CHURCHGATE (NIG Ltd. & Anor. (2010) LPELR-897 (SC) at PP45-46, Paras. F-C; Where Adekeye, JSC; reasoned that:-
“It is trite Law that for a Court to be competent to have jurisdiction over

a matter, proper parties must be identified. Before an action can succeed, the parties to it must be shown to be the proper parties to whom rights and obligations arising from the cause of action attach. The question of proper parties is a very important issue which would affect the jurisdiction of the Court as it goes to the foundation of the suit in limine. Where the proper parties are not before the Court then the Court lacks jurisdiction to hear the Suit. Best Vision centre Ltd. V. U. A. C. NPDC PLC. (2003) 13 NWLR (Pt. 838) pg. 594; Ikone V. Anakwe (2000) 8 NWLR (Pt. 669) Pg. 484; Peenok Ltd. V. Hotel Presidential (1983) 4 NCLR 122; Ehidmhen V. Musa (2000) 8 NWLR (Pt. 669) Pg 540?

In the instant case, the Respondent has shown and indeed from the ipse dixit of the Appellant, it is clear that Appellant was a necessary party to be joined since there were certain rights and obligations attached to his inheritance of the disputed house following the demise of his mother who was the sole Defendant and whom he substituted without objection.

?To lay to rest this issue of survival of cause of action and jurisdiction, it is also necessary to refer to

Section 15(1) of the Administration of Estates Edict, 1994 of Imo State which provides that:
?Subject to the provisions of this Section, on the death of any person, after the commencement of this Edict all causes of action subsisting against or vested in him shall survive against or, as the case may be, for the benefit of his estate;
Provide that this Sub-section shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from other or to claims for damages on the ground of adultery.?
Ordinarily and under the Common Law, all personal actions die with the persons or parties that initiated them and this explained the rationale behind the dictum of Nnaemeka Agu, JSC of blessed memory in Chief Joseph Odetoye Oyeyemi Vs. Commissioner for Local Government, Kwara State & Ors. (1992) 2 NWLR (Pt. 226) 561 at 675; that:
?A personal right of action dies with the person. This is expressed in the Latin Maxim: ?Action Personalis moritur Cum persona?. In other words, an action based on the personal rights of a deceased person dies with the person.? see also Whyte

V. Jack (1996) 2 NWLR (Pt. 431) 407 at 422; Ogiugo V. Ogiugo (1999) 14 NWLR (Pt. 638) 283 and Olufeagba Vs. Abdul. Raheem (2009) 18 NWLR (Pt. 1172) 384 per Fabiyi, JSC which were followed by Agbo, JCA (now P.J.) in the case of the. Hon. Justice Adebayo Manuwa Vs. NJC & 3 Ors (2011) LPELR ? 5015 (CA) while interpreting Section 15(1) of the Lagos State Administration of Estates Law, 2003 which like CAP. 2 Laws of Bendel State, 1976 interpreted in the Ogiugo Vs. Oguigo case (supra) and which provisions of the aforementioned States Law are the exact replica of Section 15(1) of the Imo State Administration of Estates Edict, Vol. 1 Laws of Imo State of Nigeria, 1994 aforecited.

In the Hon. Justice Manua V. NJC & Ors. case, my Lord now (our P.J.) posited, and rightly too, that with the enactment of the Administration of Estates Law of Lagos State, 2003; it does seem that Statute Law has intervened as a community reading of Section 15(1) of the Law clearly shows that the Common Law position is no longer applicable in Lagos State. That Section, His Lordship further held, now regulates and has provided for the survival of a cause of action on the

demise of a party to a personal Suit like the case at hand where Evelyn Amadi was the sole Defendant and she is now survived by the present Appellant who is his son.
In other words, as was held in Ogiugo V. Ogiugo (supra) and Olufeagba V. Abdul-Raheem (supra); by Section 15(1) of the Imo State Administration of Estates, Edict, 1994; the cause of action that led to this Appeal survives the deceased Evelyn Amadi against whom the Respondent brought this action for the enforcement of contract of sale of land between them, for the benefit of or against his Estate excepting where the action is for defamation, seduction or inducing one spouse to leave or remain apart from the other or to claim damages on the ground of adultery.

In this case those exceptions do not exist and I reiterate that the cause of action survived the original Defendant as the present Appellant was rightly substituted to step in the shoes of his mother Evelyn Amadi. I am also bound by the decisions of the Supreme Court in the cases cited that from 1994 when the Law/Edict was enacted, all personal actions survived the parties except for the situations mentioned in the proviso to

Section 15(1) of the Edict.

See also Per Aderemi and Abba Aji JJCA in Okomu Oil Palm Ltd. V. Mr. O.J. Okpine (2006) LPELR – 7708 (CA) at pages 17 paras B?G and 26 – 27 Paras. F-A.

I am therefore of the firm view that the Court below from all ramifications, had the Jurisdiction to proceed/continue with the hearing of the Respondent’s claim after the demise of the original Defendant following her substitution by the Appellant. Ground Two of the Appellant’s Appeal and indeed Issue Number Two formulated therefore cannot stand and are therefore discountenanced for being frivolous if not mischievous. Issue Number 2 is therefore resolved against the Appellant and in favour of the Respondent.
RESOLUTION OF ISSUES ONE AND THREE OF THE APPELLANT AS WELL AS THE SOLE ISSUE OF THE LEARNED COUNSEL FOR THE RESPONDENT:-
(1) “WHETHER THE PLAINTIFF/RESPONDENT MADE A CASE FOR AN ORDER OF SPECIFIC PERFORMANCE WHICH IS THE PURPORT OF THE JUDGMENT OF THE LOWER COURT?;
(3) WHETHER THE TRIAL COURT’S DECISION THAT EXHIBIT “D” IS ENOUGH MEMORANDUM IN WRITING EVIDENCING AND RESPECTING THE TRANSACTION

BETWEEN THE PARTIES FOR THE PURCHASE BY THE PLAINTIFF/RESPONDENT OF THE PROPERTY NOW IN DISPUTE AND THAT IT COMPLIED WITH SECTION 67(1) OF THE IMO STATE LAW OF PROPERTY EDICT, 1994 IS PROPER IN LAW?” AND ISSUE NUMBER 1 OF THE RESPONDENT: “WHETHER THE DEFENDANT’S MOTHER SOLD THE PROPERTY TO THE PLAINTIFF?”

The evidence of the PW1 and PW2 had earlier been reproduced but suffice it to say that from the totality of the evidence of the PW1 and PW2 (Agbo Esq), there was a valid and enforceable contract between the late Mrs. Evelyn Amadi (who is succeeded by the Appellant), in the presence of the absconding Mr. Onoh and the Appellant who witnessed Exhibit “A”. Notwithstanding that the Appellant is denying that he was aware of the transaction and that he only came to know the Plaintiff when he (Plaintiff/Respondent) brought the Police to arrest his late mother, Exhibit “A” was signed by Jona Amadi the Appellant who apart from being a witness to the Agreement read and interpreted the illiterate Jurat to Mrs. Evelyn Amadi before the late Defendant thumb-impressed the Agreement.

A look also at the signatures of

Prince A. C. Onoh in the said Exhibit “A” would reveal that they are consistent with those acknowledging the payment of the various installments in Exhibit “B” on the pages with the dates 23, 24, 25, 26 and 29 January, of the 1993 Diary.

It is not denied that the Respondent paid the balance of N18,000.00 as the last installment for the total sum of N360, 000.00 (Three Hundred and Sixty Thousand Naira) only, being the purchase price for the disputed property.

Again, a look at Exhibit “C” would also reveal the signature of the absconding Mr. Onoh who after collecting a substantial part of the purchase price in tacit connivance with the Deceased Evelyn Amadi, the Appellant, the PW2 and indeed Georgina (his Onoh?s wife) and sister of the Appellant, purportedly wrote a letter instructing the late Mrs. Amadi not to hand over the title documents until the Respondent paid the sum of N200,000.000 (Two Hundred Thousand Naira) which the Respondent borrowed from him (the absconding Onoh) to pay the deceased Evelyn Amadi part of the installment.

The basis of the learned Counsel for the Appellant’s submission

that the Respondent did not prove the existence of a contract between the Respondent and Mrs. Evelyn Amadi is the seeming contradiction between the evidence of the PW2 Who testified that he prepared a Power of Attorney rather than Exhibit ?A? which was tendered by the Respondent. Furthermore, whereas the Respondent testified that the Appellant and his sister were all bodily present when the contract was entered into, the PW2 stated on the contrary that the Appellant came into the picture on the day the last payment was made.

On a perusal of Exhibit A particularly the language and some of the clauses (Terms) in the Habendum, there is no doubt that the document was prepared by the PW2 who without mincing words was part of the syndicate and ought to be arrested to explain what happened to the power of Attorney which he prepared and purportedly handed over to Onoh. To demonstrate that the PW2 prepared the document, clauses 2, 3, and 4 categorically state that:
?2. Mrs. Evelyn Amadi shall execute a formal Power of Attorney in favour of Mr. Kenneth Onyemaechi Obiajunwa on the day the first installment is paid.
?3. But the

power of Attorney so executed shall not be released to Mr. Kenneth Onyemaechi Obiajunwa but shall be deposited with and in possession of prince A. C. Onoh who is the link between the two parties and who witness this agreement.
?4 The said Power of Attorney shall be released to Mr. Kenneth Onyemaechi Obiajunwa directly (sic) he pays the final installment and this Agreement shall be destroyed instantly?.

I am of the considered view that the neglect of the PW2 (Who was procured by Mr. Onoh initially and who upon subsequent agreement acted for both the deceased Defendant and the Respondent), to sign or endorse the Agreement as the maker was part of the scheme perfected by the PW2, Onoh, Deceased Defendant and indeed the Appellant to defraud the Respondent. This is the main reason why the PW2 would deny the preparation of the Agreement (Exhibit A) which had incorporated the Power of Attorney which he prepared and he could not tender the counterpart copy as well as the question by the Learned Counsel for the Appellant at page 82 of the Record of Appeal that: ?Exhibit A does not show that any lawyer prepared it and the Respondent

insisted that: ?it is not true. Barrister Agbo prepared Exhibit A?.

The Learned Counsel at page 83 of the Records further asked
?Put: On the face of Exhibit there is no where that it is shown that a lawyer prepared it.
?Ans: Exhibit shows that a lawyer prepared it and the lawyer is prepared to come and give evidence to that:

As a demonstration that the PW2 was part of the scheme and was working in tandem with the Appellant and his cohorts, the said witness who admitted preparing Exhibit ?D? with his official stamp affixed and which Exhibit was endorsed as having read the content thereof and interpreted to the seller before the seller thumb-printed, under cross-examination, admitted that he came in touch with the Appellant for the first time when the Plaintiff took him to the house of the Appellant?s mother at Amakohia to witness the final payment for ?the property which the Plaintiff was buying from the Defendant?s in-law one Onoh by name. It was at that meeting that I met the present Defendant for the first time?.

?To further demonstrate that the PW2 had

a hand in duping the Respondent of his money, he had in tacit support of the Appellant’s case answered under cross-examination at page 102 whether he would be surprise to hear that he prepared Exhibit “A”, answered :
Ans: I will be surprised because for every document I prepare since becoming a lawyer always bore my signature and stamp. Like I said earlier, I prepared Power of Attorney between the Plaintiff and mother of Defendant on the instructions given me by one Onoh who introduced the Plaintiff to me in respect of the property subject of this suit.
The said Onoh said the Plaintiff was buying the property from the mother of the defendant who is also the mother in-law of the said Onoh?.

Inspite of the above averments , on the question whether throughout the transaction involving the said property, from his estimation it did appear to him (PW2) that the Appellant’s mother was aware that her property was being sold, he admitted that he formed the impression because at all times when the Respondent paid the installments , Onoh always drove him and the late Evelyn Amadi to the Police Officers’ Mess where the

Respondent was then resident and after such payment at the Respondent’s room, the late mother of the Appellant would show him (the PW2) the Diary (Exhibit B) containing the record of payment made to the Defendant’s mother in the presence of all of them and there is no dispute to that. However, he would not know whether the deceased mother of the Appellant understood what was going on because she usually spoke Igbo but the PW2 knew for sure that payments were made for the property in dispute and being receipted in Exhibit “D” which was endorsed by the Appellant and admitted as being issued by the said PW2.

Now the Learned Counsel for the Appellant has submitted on the authority of Help (Nig.) Ltd. Vs. Silver Anchor (Nig.) Ltd. (2006) All FWLR (pt. 311) 1833 Ratio 1 as well as Orient (Nig.) Plc V. Bilande International (1997) 8 NWLR (Pt. 515) 37 at page 79 paras B-C and Odutola Vs. Papersack (Nig.) Ltd. (2007) ALL FWLR (Pt. 350) 1214 and against the background of the totality of evidence and the fact that Exhibits “A” and “B” have been expunged, that there is no valid existing contract.

Contrary to the

submissions of the Learned Counsel for the Appellant the origins of the transactions have demonstrated that there was a valid and subsisting contract between the Respondent and the Appellant’s mother nay the Appellant who has now stepped into his mother’s shoes.
In line with the decisions in HELP (Nig) Ltd V. Silver Anchor (Nig) Ltd (supra) and Orient Bank (Nig), the Supreme Court in the recent case of BILANTE International Ltd V. NDIC (2011) LPELR -78 (SC) per Fabiyi, JSC at pages 15-16 paras E-B, explained the essentials of valid contract as follows:
“To constitute a binding contract between parties, there must be a meeting of minds often referred to as consensus ad idem. The mutual consent relates to offer and acceptance/an offer is the expression by a party of readiness to contract on the terms specified by him which if accepted by the offeree gives rise to a binding contract. The offer matures to a contract where the offeree signifies a clear and unequivocal intention to accept the offer. See Okugbule & Anor V. Oyagbola & Ors (1990) 4 NWLR (Pt. 147) 723.
It should be reiterated in order to establish that parties

have formed a contract, there must be evidence of consensus ad idem between them. Then if there is a stipulated mode for acceptance of the offer, the offeree has a duty to comply with same. See Afolabi V. Polymera Industries (1967) 1 ALL NLR 144. The acceptance must correspond with the term of the offer. If it purports to qualify the offer, it may amount to a counter offer and not an acceptance. It may amount to rejection of offer. It may also destroy the offer?.

?In the instant case, the Respondent and Deceased Defendant in the presence of the PW2, absconding Onoh and the Appellant (not withstanding that he now denies), entered into a binding contract when the said Appellant?s mother through the instrumentality of the said Onoh offered to sell the

property in dispute and the parties mutually agreed that the Respondent should pay for the property by installments at the conclusion of which the Power of Attorney and title documents shall be handed over to the Respondent.

The Respondent fulfilled his part of the bargain by supplying legal consideration which was the total sum of N360,000.00. Exhibit “A” was the tentative Agreement which was entered into by the parties and witnessed by the said Onoh and the Appellant who read the contents of the Agreement (Exhibit A) to the understanding of the Illiterate deceased original Defendant and she thumb- printed as having understood same. The terms of the contract had earlier been set out and by Exhibit “B” which evidenced the payment of those instalments, as well as Exhibit “D” evidencing the final and full payment of the said purchase price, the Learned Trial Judge had no business expunging Exhibits “A” and “B” since Exhibit “A” contains an illiterate jurat consistent with the Illiterates Protection Law (Sections 3-4 and 5 of CAP 64, Laws of Eastern Nigeria, 1963) then applicable to the

case.

The PW2 had also buttressed the fact that he witnessed the entries to Exhibit ?B? on each of the days the instalment was paid and as I had observed the signatures of Mr. Onoh in Exhibits A and B are consistent with each other and there is no doubt that by Exhibit “D” with all the documentary Exhibits, the parties intended to have that legal relationship and as full adults had the capacity to do upon the fulfillment of all the essential elements of a valid contract.

The late Evelyn Amadi and indeed Onoh and Appellant, only introduced the issue of Exhibit ?C? in order to frustrate and truncate the handing over of the property and title deeds to the Respondent.
From all indications, the parties had agreed between themselves upon the conditions embodied in Exhibit A and since the Respondent had fulfilled those conditions, the Appellant is bound by those terms and conditions set down in the documents. See, Owoniboys Tech. Services Ltd V. U.B.N. Ltd (2003) 5 NWLR (Pt. 844) 545 S.C ;Baba V. Nigerian Civil Aviation Training Centre (1991) 15 NWLR (pt. 192) 388 SC and Koiki V. Magnuson (1999) 8 NWLR (pt.615) 492.

The learned Trial Judge having considered the totality of the evidence both oral and documentary rightly found in my respectful view that:
“These alleged discrepancies are, in my view, not enough to say that there is no proper cause of action in this suit as Exhibit “D” clearly shows that there was transaction between the Plaintiff and Evelyn Amadi for the sale of the property to the Plaintiff, that the total sum was for N360,000.00 (Three Hundred and Sixty Thousand naira) and that the sum of N18,000.00 (Eighteen Thousand Naira) was received by Evelyn Amadi on 3rd June, 1993 as the final and last installment payment for the property, that Evelyn Amadi shall deliver the document of title to the purchaser (the Plaintiff) on or before 3/8/93″
(See page 151/10 of the Records/Judgment of the Lower Court.

Accordingly, contrary to the submission of the learned Counsel for the Appellant that Exhibit “D” does not mention any receiver, Exhibit “D” has it endorsed that. “I Mrs. Evelyn Amadi collected the stated sum covered by this Receipt, the document of title is to be delivered to the purchaser

and promised that same shall be delivered to him on or before 3-8-93.”

By this document alone, the Appellant who interpreted the content of same to his deceased mother who thumb impressed at the back of the document with a jurat, has entered into contract for the sale of land which particulars are stated on the face of the said Exhibit “D”. With the greatest respect, the Learned Trial Judge did not speculate or make any new contract for the parties not withstanding that authorities like Okalande V. Afro Continental Nig. Ltd. (1996) 7 NWLR (Pt. 458) 29 (SC) , Fakorede V. A.G Western State (supra) and Ikenye V. Ofunne (supra) had decided rightly that the Courts are not allowed to read into contracts, terms on which there are no agreements or speculate on evidence not before it.

In the instant case, the Court below took into consideration the totality of all the documents tendered and even if he failed to do so, this Court is in as good a position as the Court of first instance to draw the necessary inferences from the documents tendered and make the correct findings since this is not a case of the demeanour of the witnesses or

credibility. I am of the firm view that the Court not only took into consideration the documents together (though he wrongly expunged Exhibits “A” and “B”), along with the conduct of parties which showed that the Respondent and deceased original Defendant were ad idem that upon payment of the final instalment, the title documents be they the Certificate of Occupancy or power of Attorney, shall be handed over to the Respondent. Therefore by the combination of Exhibits A, B and “D” there was a valid contract for sale of the property covered by Exhibit “E” (now in dispute).

The Learned Counsel for the Appellant has also argued that on the evidence of the Respondent, regarding Exhibits “A” and “B” the conduct of the Plaintiff and his cohorts Mr. Onoh lacks bonafide irrespective of the preparation of Exhibit “D” by the PW2. I am of the view that it is rather the conduct of Mrs. Amadi (now represented by the Appellant) whose cohorts were Onoh and to some extent the PW2 who had advised Mr. Onoh to be arrested so as to get to the root of the matter as he subsequently saw the whole

transaction to be fraudulent (pages 97-98 of the Records), that is taninted with fraud and the Appellant cannot take benefit of their fraud and illegality.

The Supreme Court and indeed this Court had held that: ?A party who induced another party to enter into a contract cannot subsequently deny the validity of that contract.?. See Okechukwu V. Onuorah (2000) 12 Sc (pt. 11) 104 at 109 ; and to re-echo the illuminating dictum of my Learned brother in the recent case of Chachangi Airlines (Nig) Ltd V. A.P. Plc (2015) 4 NWLR (pt.1449) 256 at 274-275 paras D-A, no person after reaping the benefit from a transaction of which he is a party shall be heard to say that such transaction is void or illegal or voidable, when it comes to fulfilling his obligation under the transaction so far as the rival party has done all that he pledged to do under it. In this case, there is clear evidence that the late Mrs. Evelyn Amadi had collected N360,000.00. as the purchase price for the property in dispute by Exhibit ?D? but hiding under the canopy of Exhibit ?C? refused to hand over the title documents to the Respondent.

?Neither she

of blessed memory nor the Appellant nor the Learned Counsel on their behalf can sormersault to plead that the transaction is tainted by illegality because the PW2 had averred that the said Onoh had varnished into thin air. See Fasel Services Ltd Vs. NPA (2003) 8 NWLR with the greatest respect, the contract for sale was concluded when the parties agreed on the subject matter, the nature of the transaction and the Respondent agreed and supplied the consideration thereof. See, Doherty V. Ighodaro (1997) II NWLR (Pt. 530) 694. I find nothing therefore illegal in the transaction between the parties except for the Appellant who deliberately wants to deprive the Respondent of the house in dispute. I am also of the considered view that the contract is not suffering from any defects such as informality, mistake or illegality and same is accordingly enforceable.

On the vexed question whether the Respondent had made a case for specific performance, with all that we have analyzed earlier, the Trial Court rightly found that Exhibit ?D? complied with Section 67 (1) of Imo State Law of Property Edict, 1994, as it is a mere memorandum in writing respecting the

purchase of land and accordingly it is not a registrable instrument properly so called.

Amao Vs. Adebona (1962) L. L. R. 125; t. a. Orasanmi Idowu (1959) 4 F.S.C 40; Soremekun V. Shodipo (1959) L.L.R 30, Registered Trustees of Muslim Mission Hospital Committee v. Oluwole Adegbo (1992)2 NWLR (pt. 226) 670 at Page 706; where it was held that the emphasis is the payment of the agreed full or part of the purchase price, coupled with possession by the purchaser.
Accordingly, the Learned Emeritus Law Lord continued at page 653 paras A-C that:
“And I hold the view that possession in this con includes constructive possession. It is in evidence that the Respondent would have been in physical possession but for the fact that the 3rd Respondent/Vendor was still there. See evidence of the PW2 at page 91 line 16-17 of the Records. Ordinarily therefore, the agreement for sale in Exhibit “A” being one upon which the 2nd Respondent paid the purchase price coupled with his constructive possession of the land, entitles him to an equitable interest strong enough to defeat any subsequent legal estate created in favour of the 3rd Defendant/ Appellant.”

I am of the firm view that since the facts of this case are almost on all

fours with the Supreme Court case above cited, the Respondent by the combined effect of Exhibits “A”, “B” and “D” which are the Agreement for sale subject to which payments were made instalmentally and recorded in Exhibit “B” and when the final instalment was paid Exhibit “D” was issued, the Respondent resumed constructive possession and would have been in physical possession had the original Defendant and indeed the Appellant, not withheld the title documents from him.

The Respondent is therefore seised of the equitable interest in the property which would eventually mature to legal estate upon perfection of his title following the final payment of the instalments of the purchase price for the property in dispute.

In the same vein, the refusal of the Appellant and Appellant’s mother to discharge their part of the bargain as shown in Exhibits “A” and “D” is in the words of the Learned Trial Judge, “an unequivocal breach of the Appellant’s undertaking in the said Exhibits/Agreements and the Respondent is entitled to an order of specific performance of

the Agreement by the Appellant, the Respondent having proved on the balance of probability that he was entitled to Reliefs 1,2, and 3 in the claim.”

Oko & Ors (2008) LPELR -1206 (SC) where Onnoghen JSC relying on Obijuru V. Ozims (1985) 2 NWLR (pt.6) 167 at 179; on the same principle held that in cases where there is a subsisting contract or agreement for sale of land or lease of land (as in this case), the Court being also a Court of equity is always inclined to grant specific performance because the land being sold or leased may have a perculiar value of significance to the Purchaser or Lesse particularly where it is a choice land in a busy commercial centre of the town, as in the instant case. See further Best Nigeria Ltd V. Blackwood Hodge (Nig) Ltd. (2011) LPELR -776 (SC) 42 where the Supreme Court per Adekeye, JSC relying on Gaji V. Paye (2003) 8 NWLR (Pt. 583), held that an order of Specific performance being an equitable remedy which is granted to a successful litigant constraining the losing party to carry out the agreement which he had entered into with the successful litigant, like all equitable remedies it is discretionary which discretion must be exercised judicially and judiciously and discretely balance the interest of parties. Eronini V. Iheuko (1989) 2 NSSC (pt. 1) 503, 513; (1980) 3,

SC 30 and University of Lagos V. Olaniyan (1985) 16 NSSC (pt. 1) 98, 113 refer.

Going by these authorities, since the Respondent went to the extent of selling his house in Kano to pay for the house in dispute which is situate at a Choice location in Owerri Metropolis, no amount would compensate him for the loss he would suffer if specific performance was not ordered.

I therefore hold even on the authority of HELP (Nig) Ltd V. Silver Anchor (Nig) Ltd (2006) LPELR-1361 (SC) P-7, paras E-F Per Kastina-Alu, JSC, cited by the Appellant that the Court below exercised its discretion judicially and judiciously taking into consideration the perculiar circumstances of the case when it granted the order of specific performance in favour of the Respondent.

I am afraid that all the authorities cited by the Learned Counsel like Inyana vs. Registered Trustee FCGC (supra), Mafinmisebi V. Ehuwa (supra) may have been decided on their perculiar facts and circumstances and I have even done the needful by re-valuating the totality of the evidence as well as the documentary Exhibits and I find it unnecessary to interfere with the findings of the Learned Trial Judge

that the Respondent proved his case on the balance of probabilities, thus warranting the Court below to decree specific performance against the Appellant and the Appellant was even lucky that the Respondent did not cross-Appeal against the refusal of the Court below to grant Relief (d) for an order for complete account and hand-over of all rents collected from the house with effect from 3rd June, 1993 until the suit was determined.

On the whole, I shall resolve Issues One and Three of the Appellant as well as the sole Issue of Respondent against the Appellant and in favour of the Respondent. This Appeal is unmeritorious and is accordingly dismissed with N50,000.00 costs in favour of the Respondent.

PETER OLABISI IGE, J.C.A.:?I have had the privilege of reading in advance the judgment just delivered by my Noble Lord IGNATIUS I. AGUBE, JCA., I agree with the reasoning and conclusion.

FREDERICK OZIAKPONO?OHO, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned brother, IGNATIUS IGWE AGUBE, JCA and I am in total agree with the reasoning and

conclusions in dismissing the Appeal as lacking in merit.

It is according dismissed with a cost of N50,000.00 in favour of the respondent.

Appearances

Ernest Nwagwu, Esq.For Appellant

AND

N. B. E. Nwigwe, Esq. with him, C. E. E. Iwuchukwu, Esq.For Respondent