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MUHAMMAD v. ALBASU (2022)

MUHAMMAD v. ALBASU

(2022)LCN/17147(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Monday, October 31, 2022

CA/K/144/2019

Before Our Lordships:

Ita George Mbaba Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Between

ALH. ANAS MUHAMMAD APPELANT(S)

And

ZAINAB SHEHU ALBASU RESPONDENT(S)

 

RATIO

WHETHER OR NOT FAILURE TO FILE A RESPONDENT’S BRIEF AMOUNTS TO ADMISSION OF THE APPELLANTS CASE

By law, failure to file a respondent’s brief, does not amount to admission of the Appellant’s case and to success of the appeal. See Onyenawul Vs Onyenawuli (2017) LPELR – 42661 (CA) and Skye Bank & Anor Vs Akinpelu (2010) LPELR – 3073 SC, where it was held:
“But I must add quickly, this is firmly established, that failure to file a Respondent’s brief, is immaterial as an Appellant, must succeed or fail, on the strength of his own brief or case. See the cases of Management Enterprises Ltd. & Anor v. Otusanya (1987) 4 S.C. 367; (1987) 4 SCNJ 110; John Holt Ventures Ltd. v. Oputa (1996) 9 NWLR (Pt.470) 101 AT 112 and Onyejekwe v. The Nigeria Police Council & Anor (1996) 7 NWLR (Pt.463) 704 AT 710 just to mention but a few.”
PER MBABA, J.C.A.

THE DIFFERENCE BETWEEN PAYMENT OF DEPOSIT AND PART PAYMENT FOR PURCHASE OF LAND

The fact that the Respondent paid a deposit of N60,000.00 to PW1, for the purpose of showing interest towards purchasing the said land, cannot amount to a conclusive contract to sell/buy the said land, even if the PW1 were to be the agent of the Appellant, for that purpose. This is because, a mere deposit of money to express interest in property, is not conclusive evidence of payment for the property. And this should be distinguished from payment of part payment of cost of a property, which is usually done, after a conclusive agreement, to buy/sell, and the parties are in agreement that part payment be paid, while the balance would be paid, subsequently. See the case of Mini Lodge Ltd Vs Ngei (2009) LPELR-1877 SC, where it was held:
“In a contract for sale of property, where part payment was paid, the law is that the contract for purchase has been concluded and is final, leaving the payment of the balance outstanding to be paid. The contract for the sale and purchase is absolute and complete for which each party can be in breach for non-performance and for which an action can be maintained for specific performance. In the instant case, the plaintiff/appellant and the 1st respondent were not in agreement about the sale of the property. The intention of the appellant to purchase the property was not effectively communicated to the 1st respondent.”
The difference between payment of deposit and part payment for purchase of land, was clearly made in the case of Biyo Vs Aku (1996) 1 NWLR (Pt 522) 1, where it was held on pages 24-25, as follows:
“There is certainly a difference between a deposit made in purchase of land and part payment. In the case of deposit, the vendor is at liberty to assume after waiting for a reasonable period of time, that the purchaser/buyer was no longer interested, the vendor could sell to any other prospective buyer thereafter and return the purchaser’s deposit.
In the case of part payment… the law is clear… that the contract for the purchase has been concluded and is final, leaving the payment of the balance of purchase price outstanding to be paid. The contract for the sale and purchase is absolute and complete for which each party can be in breach for non-performance and for which action lies for specific performance.” PER MBABA, J.C.A.

THE DOCTRINE OF NEMO DAT QUOD NON HABET

In the case of Gbadamosi & Ors Vs Akinloye & Ors (2013) LPELR-20937 SC, my Lord Onnoghen JSC (Later CJN), held that no man can give what he does not have, when he said:
“It is settled law that you cannot give what you do not have, otherwise known as the doctrine of “Nemo dat quod non habet” The question is simply whether the respondents who had sold their title to the portion of land in dispute to the appellants which title was compulsorily acquired by the Lagos State Government from the appellants and which acquisition has been declared by a Court of law to be null and void legally speaking be entitled to a repossession of the title already sold to appellants from the third party; Lagos State Government without the authority and/or consent of the new owner of that title? The lower Courts held that the respondents are entitled to the title. However, common sense says that you cannot eat your cake and still have it back. That is the simple answer to a very simple case as revealed by the record of appeal. Without making magic or abracadabra, can you eat your cake and still have it back? Fortunately, this is a Court of law which has absolutely nothing to do with magic or abracadabra neither does the Court allow itself to be used as an engine for the perpetration of fraud, in whatever guise. In the case of Ilona v. Idakwo (2003) 11 NWLR (pt. 830) 53 at 89 and 91-92, this Court held, inter alia, as follows: “Where there is a subsisting right of occupancy, it is good against any other rights. The grant of another right of occupancy over the same piece of land will therefore be invalid… Where a party has fully divested himself of all interest in land, no right vests in him to deal with the same property by way of further alienation anymore. It is a matter of nemo dat quod non habet: i.e. he cannot give that which he no longer has.” Per ONNOGHEN, JSC.
PER MBABA, J.C.A.

THE ESSENTIAL ELEMENTS OR FACTORS THAT CONSTITUTE A VALID CONTRACT

The essential elements or factors that constitute a valid contract are quite clear and elementary; that there was: (1) an offer – clearly made; (2) an acceptance of the offer, precisely and unconditionally given; (3) consideration paid (in part or as a whole); (4) intention by the parties to create the legal relationship; and of course (5) legal capacity to enter into the contract, including the capacity to transfer title to property (where that is involved). See the case of Incorporated Trustees of Roh Empire Mission Vs Opara (2017) LPELR – 42463 CA, where it was held:
“A contract is a legally binding agreement between two or more persons, by which right are acquired by the party, in return for acts or forbearance, on the part of the other. It is a bilateral affairs, which requires consensus “ad idem” of the parties. See Odutola vs Papersack Nig Ltd (2006) 18 NWLR (pt 1012) 470; Orient Bank (Nig) Plc vs Bilante Int’l Ltd (1997) 8 NWLR (PT.515) 37, Ashaka vs Nwachukwu (2013) LPELR- 20272 (CA). See also Alfa System Com. Ltd & Ors vs Keji Orisajimi & Ors (2016) LPELR – 40295 (CA), on the five essentials of a valid contract, namely, offer, acceptance, consideration, intention to create legal relationship and capacity to contract, and all the five ingredients must co-exist, before a valid contract can exist.Okubule vs Oyagbola (1990) 4 NWLR (pt.147) 723. Amana Suite and Hotel Ltd vs PDP (2007)6 NWLR (pt.1031) 453.”
See also Abdullahi & Ors Vs El-Rufai & Ors(2021) LPELR – 55627 (SC), where it was held:
“For a valid contract to emerge, there are five elements that must be present and recognizable. These are offer, acceptance, consideration, intention to create legal relationship, capacity to create legal relationship and capacity to contract. Thus, before any contract or agreement can be said to come into existence in law, there must be an unmistaken and precise offer, followed by an unconditional acceptance of the terms mutually agreed upon by the parties thereto. That is to say the parties to the agreement must be in consensus ad idem as regards the terms and conditions freely and voluntarily agreed upon by them. See BILANTE INTERNATIONAL LTD VS NIGERIA DEPOSIT INSURANCE CORPORATION (2011) 6-7 SC (PT IV) 113, OMEGA BANK PLC V. OBC LTD (2005) 8 NWLR (PT 928) 547, AMANA SUITES HOTEL LTD V. PDP (2007) 6 NWLR (PT. 1031) 453. Therefore, where an offer is made but is not accepted, there can be no agreement or contract arising therefrom. An offer is an expression of readiness to contract on the terms specified by the offeror (i.e the person making the offer) which when it is accepted by the offeree (i.e the person to whom the offer is made) will give rise to a valid and binding contract. In other words, it is by acceptance that the offer is converted to a contract. See SPARKLING BREWERIES LTD & ORS V. UNION BANK OF NIGERIA LTD (2001) 10 SCM 163. A mere willingness to enter into a negotiation with a view to entering into a contract cannot be an offer but at best an invitation to treat. See OMEGA BANK PLC V. OBC LTD (SUPRA).” Per OSEJI, JSC.
PER MBABA, J.C.A.

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this appeal against the judgment of the Kano State High Court in Suit No. K/456/2016, delivered on 5th October, 2018 by Hon. Justice A. R. D. Muhammad, whereof the learned trial Judge entered judgment for the plaintiff (now Respondent).

At the trial Court, the Respondent (as plaintiff) had sought the following reliefs:
(a) A declaration that the Defendant is only entitled to the sum of N1,090,000.00 being the consideration for the sale and purchase of the property at Unguwa Uku Tarauni Local Govt. Area, less the sum of N60,000.00 that has been collected by the Defendant, through agent.
(b) To pay the sum of N150,000.00, being the plaintiff’s solicitor professional fees, for prosecuting this action or.
(c) Alternatively, to pay the sum of N500,000.00 as general damages for breach of contract;
(d) Cost of action.

The Defendant (Appellant herein) filed a defence and staked some claims (without stating that he was counter-claiming), as follows:
(a) A declaration that there was no valid contract between the plaintiff and the Defendant.
(b) The entire action be dismissed as it is frivolous, mischievous and gold-digging exercise.
(c) To pay the Defendant the sum of N500,000.00 as general damages for depression and trauma, caused to the Defendant as a result of this suit.
(d) To pay the sum of N160,000, being the solicitors fee for prosecuting the suit.

After hearing the case and considering the evidence and addresses of Counsel, the trial Judge gave judgment to the plaintiff (Respondent) saying:
“It is clear from the evidence of PW1, PW2 and that of the defendant, the defendant unilaterally revoked the contract, after it was completed. The effect of this unilateral revocation of the contract by the defendant in law amounted to a breach of contract. This type of contract in which the remedy of specific performance is most granted by the Court, a mere award of damages in such a case will defeat the just and reasonable expectation of the parties or at least the plaintiff in this case…
In this instant case, the breach of contract by the defendant cannot be remedied by damages, because the amount of damages prayed for by the plaintiff is half the contract price of the plot of land sold by the defendant. In this case, it will be more equitable to order for specific performance than order for damages.
The 2nd reason for this decision is because it is well known to the defendant that the plaintiff altered her position by disposing her shop with its goods at Brigade and other personal belongings in order to raised (sic) the money. Its therefore infer (sic) order for damages as this will adequately compensate her for the lost (sic) of her shops and personal effects. Consequently, judgment is hereby entered for the plaintiff against the defendant as follows:
1) It is hereby declared that the defendant ALHAJI ANAS MUHAMMAD having sold the Plot No. 45C to the plaintiff ZAINAB SHEHU ALBASU is entitled to perfect the contract by receiving the sum of N1,090,000.00, being the balance of the sale of plot No. 45C situate at Unguwa Uku Tarauni Local Government Area of Kano State to the Plaintiff.
2) The defendant is hereby ordered to surrender possession of the Plot No 45C situate at Unguwa Uku Tarauni Local Government Area of Kano State to the Plaintiff.
3) Cost of this action… N50,000.00 to plaintiff.” (See pages 259 to 261 of the Records)

That is the Judgment Appellant appealed against, as per the Notice and Grounds of Appeal filed on 21/10/18 – See pages 271-274 of the Records of Appeal.

Appellant filed his brief of argument on 19/10/2020, which was deemed duly filed on 12/7/2021. He distilled two (2) issues for the determination of the appeal, as follows:
(1) Whether the giving of an occupancy permit of land and payment of deposit, as opposed to part payment by the Plaintiff/Respondent, could be a ground for inferring that a contract of sale of land has been concluded? (Grounds 2, 6, 7, 8 and 11)
(2) Whether from the facts and circumstances of this case, the respondent proved her case to be entitled to the reliefs granted by the Honourable trial Court? (Grounds 1, 3, 4, 5, 10 and 12)

The respondent did not file any brief but was served with the Appellant’s brief. The appeal was re-heard on 23/6/2022, when Appellant adopted the brief.

Arguing the appeal, Appellant’s Counsel I. A. Elyakub, Esq., on issue one, said that giving a copy of the land title to the respondent in this case, did not pre-supposed that a contract had been made; that the payment, without the knowledge or tacit acceptance of the Appellant of the sum of N60,000 to the PW1 as deposit, did not imply that a contract paid had been agreed upon. Thus, Counsel said the findings of the trial Court was not justified in law and ought to be set aside.

Counsel argued that the handing over of land title to a prospective buyer is usually done during the pre-contract stage of a sale of land, for the buyer to investigate the title of the vendor at the relevant government ministry. He relied on the text book by S. O. Imbanobe: Legal Drafting Conveyancing (2007) P. 216. He said that such action does not confer any aura of obligation or finality on the contract, which is yet to be finalized, and nothing is conveyed or transferred at that stage.

Counsel also urged us to examine the import of deposit, as opposed to part payment, in the scheme of sale of land; that it is trite, that part payment presupposes the conclusion and finality of an agreement or contract, but deposit does not. He relied on Mini Lodge Ltd Vs Ngei (2009) LPELR-1877 SCB.

Counsel said the difference between part payment and deposit was made in the case of Biyo Vs Aku (1996) 1 NWLR (Pt 422), where it was held:
“There is certainly a difference between a deposit made in purchase of land and part payment. In the case of deposit, the vendor is at liberty to assume, after waiting for a reasonable period of time, that the purchaser/buyer was no longer interested. The vendor could sell to any other prospective buyer thereafter and return the purchaser’s deposit…
In the case of part payment… the law is clear… that the contract for the purchase has been concluded and is final, leaving the payment of the balance of purchase price outstanding to be paid. The contract for the sale and purchase is absolute and complete for which each party can be in breach for non-performance and for which action lies for specific performance.”

Thus, Counsel said, title has passed upon payment of part payment and the contract cannot be rescinded by the vendor, and if the purchaser is unable to pay the balance, the vendor can sue to recover it. But that is not so, in a situation of payment of deposit, which connotes incomplete contract. He relied on the case Onanubi Vs Ogunfolu (2009) LPLER-3730; (2009) ALL FWLR (Pt 496) 1926.

Counsel said the trial Court was wrong to have foisted a contract on the Appellant; he said that by law, a Court cannot foist a buyer on an unwilling seller; that Appellant had constantly pleaded and showed that, though he was in custody of the two plots of land, it was clear that he could not bind the real owner with the transaction against the express stipulation of the real owner, his sister. He referred us to the Exhibit E (paragraph (e) on Pages 211-212 of the Records of Appeal. Counsel added that Appellant therefore had no power to convey a property he was not the owner and relied on Ashaye Vs Akerele (1996) LPELR-25360 (SC), Gbadamosi Vs Akinloye & Ors (2013) LPELR-20937 SC; Adelaja Vs Fanoiki (1990) LPELR-110 SC; Udosen Vs Nde (2019) LPELR-47157 CA.

Counsel said that the trial Court was therefore wrong to order that the balance of N1,090,000.00 be paid to Appellant, when it was quite glaring, that the land in question did not belong to Appellant.

Counsel added that the findings of the trial Court, on page 254 of the Records, was strange and perverse, when he held: “With the deposit of N60,000.00, it is sufficient consideration for the sale of the property known as plot No. 45C no consideration is small to conclude a contract.”

He argued that it is well settled, that payment of full consideration or purchase price, is a sine qua non for the validity of a contract of sale of land; he said that payment of mere deposit clearly negates that position of the law, and it is immaterial that the seller had yielded possession to the purchaser. He relied on Dakour vs LSURB (2015) ALL FWLR (Pt 809) 917, Ogundalu Vs Macjob (2015) LPELR-24458, Odusoga Vs Ricketts & NWLR (Pt.511) and Achonu Vs Okuwobi (2017) ALL FWLR (Pt 905) 1294 at 1330 SC, where it was held:
“In contract of sale of land, failure to pay the purchase price constitutes fundamental breach, which obviously goes to the root of the case upon which the Court cannot decree specific performance.”

Counsel further called us to review the evidence of PW1, which tried to prop up DW3 to do his bidding (of PW1) with a view to conferring the benefit of same on the Respondent, in the event the Appellant agreed to deal with him; Counsel said that same had a fair reaching implication on the alleged contract, foisted or sought to be foisted on the Appellant.

On issue 2, whether the Respondent had proved her case to be entitled to reliefs granted, Counsel answered in the negative. He said that from the pleadings and evidence adduced, the scale of justice on the balance, tilted in favour of Appellant; that the trial Court erroneously placed the burden of proof on the Appellant, against the dictates of law.

Counsel queried the findings of the lower Court that PW1 was an agent of the Appellant, within the factual circumstance of the case. He asserted that there was no agency relationship between the two – PW1 and Appellant. He however referred us to pages 1 and 14 of the Records (paragraphs 10, 12 and 13 of the PW1’s testimony), where he stated that the Appellant requested him to look for buyer; and permitted that a sign post be placed on property for sale of the land as plots belonging to Appellant; that he was promised a commission of 5% of the sale price, upon sale; that the (PW1) had put his phone number on the post for the sale of the property. The PW1 thereafter found the Respondent and linked her up with the Appellant to negotiate with Appellant, directly. Counsel said that under cross-examination, PW1 said he was not part of the negotiations between the Appellant, and that the Respondent and the Appellant reached the agreement between them, but in his presence.

Counsel also said that PW1 had said that there was a contract between the parties and that, in fact, he (PW1) gave out a copy of the occupancy permit of the land to the Respondent, on the instruction of the Appellant. But Counsel said that the trial Court was wrong to hold based on those pieces of evidence, that the Appellant “authorized the PW1, Bala Mai bulo to act as his agent in the sale of Plot 45C to the plaintiff.”

Counsel further said that, assuming, but without conceding, that PW1 was agent of the Appellant, that that agency did not go beyond finding a suitable buyer, without more. He added that the mandate to look for purchaser was not a mandate to sell, as reached by the lower Court. He relied on the case of Incar Nigeria Plc & Anor Vs Bolex Enterprises (Nigeria) (2001)5 SCNJ 460 at 473, to say that an agent with a limited instruction to just look for a buyer is not entitled to conclude a sale agreement for and on behalf of the principal, as PW1 did, in this case.

He added that the burden of proof remained on the Respondent, to established her claim that there was a contract of sale between Appellant and the Respondent, and he relied on 136 of the Evidence Act. He referred to some paragraphs of the pleadings of the two parties to show that negotiation was still on going, with respect to the property the respondent showed interest, which he told the Respondent that it belonged to his sister; Counsel referred to the letter by Appellant’s lawyer (Exhibit E) which also disclosed that the said plot was that of his (Appellant’s) sister; Counsel said that the Respondent later wrote to threaten Appellant for breach of contract, while they were still negotiating. Counsel said the trial Court was therefore wrong to hold on pages 235-236 of the Records, that Appellant admitted paragraphs 1 to 15 of the statement of claim of the Respondent. He referred us to Paragraphs 4 to 18 of the pleadings of Appellant – Pages 56 – 57 of the Records of Appeal, and argued that the Respondent did not contest the denials by Appellant, as per the said Paragraphs of the Statement of defence, in the reply she filed; Counsel said that Appellant’s evidence on those averments were not challenged, under cross-examination, and that the DW1’s Statement on Oath were not also challenged.

Counsel said the trial Court had therefore held wrongly, that Appellant had admitted the pleadings of Respondent – Paragraphs 1 to 15 and that there was a valid offer from Appellant, which was accepted by the Respondent; Counsel said that the Court had wrongly construed that by the payment of the ₦60,000, deposit, to PW1 (presumably on behalf of the Appellant), that there was a valid contract between Appellant and Respondent.

He urged us to resolve the issues for Appellant, and listed the factors of a binding contract as stated in the case of AdegboLa Vs Insight Communications Ltd (2017) ALL FWLR (Pt.896) 1833, Orient Bank Nig. Plc Vs Bilante International Ltd (1997) 8 NWLR (Pt.515) 37, Omega Bank (Nig) Plc Vs OBC Ltd (2005) 8 NWLR (Pt.928) 547.

RESOLUTION OF ISSUES
Quite sadly, the Respondent filed no brief in this appeal, and so has not contested the claims and submissions of the Appellant. But that does not mean that the arguments and brief of Appellant can be treated as unchallenged. By law, failure to file a respondent’s brief, does not amount to admission of the Appellant’s case and to success of the appeal. See Onyenawul Vs Onyenawuli (2017) LPELR – 42661 (CA) and Skye Bank & Anor Vs Akinpelu (2010) LPELR – 3073 SC, where it was held:
“But I must add quickly, this is firmly established, that failure to file a Respondent’s brief, is immaterial as an Appellant, must succeed or fail, on the strength of his own brief or case. See the cases of Management Enterprises Ltd. & Anor v. Otusanya (1987) 4 S.C. 367; (1987) 4 SCNJ 110; John Holt Ventures Ltd. v. Oputa (1996) 9 NWLR (Pt.470) 101 AT 112 and Onyejekwe v. The Nigeria Police Council & Anor (1996) 7 NWLR (Pt.463) 704 AT 710 just to mention but a few.”

I shall consider this appeal on the two issues, donated by the Appellant, and shall take them, together.
“Was the trial Court right to order specific performance of contract, in favour of Respondent, in the circumstances of this case, when it held that the N60,000.00 deposit paid by Respondent to PW1 (as agent of the Appellant) amounted to conclusive contract for the sale and purchase of the disputed land between the parties?

A brief facts of the case at the lower Court, showed that the PW1 (one Bala Mai Bulo) linked up the Appellant and the Respondent for the purpose sale/purchase of a plot of land (No. 45c) situate at Ungwa-Uku Local Government Area, Kano State. The said PW1 had the authority of the Appellant to search for a buyer for this plot; PW1 said that the Appellant met him in 2007 in his block industry and mandated him to sell his plot by seeking for a buyer. There was no written authority given to him by the Appellant, but there was verbal agreement between them, and Appellant promised to pay him (PW1) 5% of the price of the land, when sold. He (PW1) reached the Respondent, who established contact with Appellant by phone calls, and they agreed on the price of the land. PW1 said the Respondent paid a deposit of N60,000.00 to him (PW1) for the land; that the Respondent was given one month within which to pay for the land. He (PW1) said the transaction was not concluded by phone; that the Respondent came and met the Appellant and they agreed. PW1 admitted he was the one that collected the N60,000.00 deposit; that Appellant did not instruct him (PW1) to pay the said money to his (Appellant) bank account. He also said there was no written agreement, as the Respondent did not pay the agreed amount (cost of the land). He (PW1) had, however, drafted agreement with the Respondent in respect of the deposit he (PW1) collected from Respondent. He said he prepared the said agreement in two copies, but the Appellant refused to collect his own copy. (See the cross-examination of PW1, on Pages 27 – 28 of the Records of Appeal).
The trial Court, had held that there was a conclusive sale of the property; that with the deposit of N60,000, it was sufficient consideration for the sale of the property, known as plot 45c; that no consideration is small to conclude a contract. (See Page 254 of the Records of Appeal).

The trial Court further said on Page 235 – 236 of the Records of Appeal:
“There is no contention between the parties that the Plaintiff and the defendant agreed on the sale of a plot of land at Ungwa-Uku quarters Kano. There is no further contention between the parties that the Plaintiff agreed to purchase the plot which they negotiated its price to be N1,090,000.00, which later the defendant re-negotiated and sold to her at the cost of N1,150,000.00. These can be seen from the averments in paragraphs 9, 10, 11, 12, 13, 18, 19 and 20 of the Statement of claim and Paragraph 1 of the Statement of defence, in which the defendant admitted paragraphs 1 to 15 of the Statement of claim. Therefore what is admitted on the pleadings need no proof.”
On Page 239 of the Records, the trial Court, further said:
“Now the Plaintiff after the transaction and upon depositing the sum of N60,000 and a written agreement executed, asked for the title document of plot purchased, for her to make search at the Ministry of Land & Physical Planning, PW1 the agent of the defendant, gave her Occupancy No. 45c 304829 of Plot No. 45c. Now the land which the defendant pleaded belongs to his sister was the one in front and which he also stated it to be the one in front. However, the fact that the Plaintiff was asked to choose and then given Exhibit B to make search, this conclusively proves, there has been no mistaken identity or mutual mistake as to the land sold to the Plaintiff. And he confirmed to the Court that the land in front is the one called 45c, which the Plaintiff was given the Occupancy permit for it. I therefore find there was no mutual mistake as to the land the Plaintiff negotiated, and I so hold.”

I think a lot of legal errors and absurdities can be traced in the above findings and holdings of the learned trial Court, which, in my view, resulted in a perverse decision, reached by the trial Court, that there was a contract of sale of land between Appellant and Respondent.

The PW1 may have acted as the agent of the Appellant for the purpose of sourcing a buyer for the landed property the Appellant wanted to sell, but by the admission of the PW1 (now witness of the Respondent), that agency did not go beyond searching for a buyer and arranging for the Appellant to do the sale. Of course, the sale was to be done by the owner of the land – Appellant (or his sister, in respect of her land – Plot 45c).

By the Respondent’s evidence, through the PW1, the collection of the deposit of N60,000.00 was entirely the arrangement/agreement between PW1 and the Respondent. And PW1, even told the Court that the money was not remitted to the Appellant, and that Appellant refused to collect the copy of the agreement which he (PW1) made with the Respondent on the said payment of deposit. The PW1 also told the Court, that the price Appellant wanted to sell the land was not paid by the Respondent; that Respondent was given one month to pay, but she failed!

What then did the learned trial Judge mean, when he said:
“With the deposit of N60,000.00, it is sufficient consideration for the sale of the property known as Plot No.45c, no consideration is small to conclude a contract.”

Deposit made towards negotiation for purchase of land cannot be the consideration for the land. The learned trial Judge had made a finding that the cost of the property was N1,150,000.00 and that the N60,000.00 paid by Respondent, to PW1 (purported agent of Appellant) was a deposit (which was never paid or transmitted to the Appellant!) The said N60,000.00, cannot therefore be sufficient consideration for the alleged sale of the property.

There is also evidence, which the Respondent did not challenge, and which the trial Court made a finding on, that the plot No. 45C belonged to Appellant’s sister, who never engaged PW1 directly to search for a buyer. Of course, even if the Appellant had had the consent of his sister, to scout for a buyer for her said land, it would take only the sister (as the owner of the land) to transfer title on the land to a buyer, not the Appellant. Appellant had pleaded that fact, in paragraph 6, 7, 8, 9 and 10 of the Appellant’s statement of defence (page 56 of the Records of Appeal) and these facts were not controverted by the Respondent. The Exhibit E, the letter by Appellant’s lawyer, had also established that fact, clearly, that the Plot No. 45c belonged to Appellant’s sister, and Appellant had no power to transfer to Respondent.

The learned trial Court cannot therefore make an order of specific performance for the transfer of title to the above plot of land (No. 45C) to the Respondent by Appellant, when evidence showed Appellant was not the owner of the said land. Appellant cannot give what he does not have and so that order was a nullity. See the case of Ashaye Vs Akerele (1966) LPELR – 25360 (SC), and Gbadamosi & Ors Vs Akinloye (2013) LPELR – 20937 (SC).

The fact that the Respondent paid a deposit of N60,000.00 to PW1, for the purpose of showing interest towards purchasing the said land, cannot amount to a conclusive contract to sell/buy the said land, even if the PW1 were to be the agent of the Appellant, for that purpose. This is because, a mere deposit of money to express interest in property, is not conclusive evidence of payment for the property. And this should be distinguished from payment of part payment of cost of a property, which is usually done, after a conclusive agreement, to buy/sell, and the parties are in agreement that part payment be paid, while the balance would be paid, subsequently. See the case of Mini Lodge Ltd Vs Ngei (2009) LPELR-1877 SC, where it was held:
“In a contract for sale of property, where part payment was paid, the law is that the contract for purchase has been concluded and is final, leaving the payment of the balance outstanding to be paid. The contract for the sale and purchase is absolute and complete for which each party can be in breach for non-performance and for which an action can be maintained for specific performance. In the instant case, the plaintiff/appellant and the 1st respondent were not in agreement about the sale of the property. The intention of the appellant to purchase the property was not effectively communicated to the 1st respondent.”
The difference between payment of deposit and part payment for purchase of land, was clearly made in the case of Biyo Vs Aku (1996) 1 NWLR (Pt 522) 1, where it was held on pages 24-25, as follows:
“There is certainly a difference between a deposit made in purchase of land and part payment. In the case of deposit, the vendor is at liberty to assume after waiting for a reasonable period of time, that the purchaser/buyer was no longer interested, the vendor could sell to any other prospective buyer thereafter and return the purchaser’s deposit.
In the case of part payment… the law is clear… that the contract for the purchase has been concluded and is final, leaving the payment of the balance of purchase price outstanding to be paid. The contract for the sale and purchase is absolute and complete for which each party can be in breach for non-performance and for which action lies for specific performance.”

See again the case of Ashaye Vs Akerele (1966) LPELR-25360, on the nullity of ordering a person who has no power to convey title to property, to do so:
“…having regard to Forrer v. Nash 35 Beav. 167 where Romilly M.R. at page 171 said- “I am of opinion that when a person sells property which he is neither able to convey himself nor has the power to compel a conveyance of it from any other person, the purchaser, as soon as he finds that to be the case, may say, ‘I will have nothing to do with it.’ The purchaser is not bound to wait to see whether the vendor can induce some third person (who has the power) to join in making a good title to the property sold. “and to In re Bryant and Barningham’s Contract (1890) 44 Ch.D. 218 where it was held that a purchaser who had contracted with vendors as trustees for sale and paid a deposit could recover that deposit when upon investigation of title it appeared that the vendors had no power of sale until the death of the existing tenant for life so that notwithstanding the offer of the trustees to obtain a conveyance from the tenant for life the purchaser could not be compelled to enter into a new contract with the tenant for life, and also having regard to Harold Elliott and H. Elliott (Builders), Limited v. Pierson (1948) Ch. 452 where Jarman J., (as he then was) said at page 456 – “The law is that a vendor who has or can compel the assurance of all necessary interests in the subject-matter of the sale may enforce the contract as – see for instance the decision of Astbury J., in In re Hailes and Hutchinson’s [1920] 1 Ch. 223, where the cases are collected…” Per LEWIS, JSC

In the case of Gbadamosi & Ors Vs Akinloye & Ors (2013) LPELR-20937 SC, my Lord Onnoghen JSC (Later CJN), held that no man can give what he does not have, when he said:
“It is settled law that you cannot give what you do not have, otherwise known as the doctrine of “Nemo dat quod non habet” The question is simply whether the respondents who had sold their title to the portion of land in dispute to the appellants which title was compulsorily acquired by the Lagos State Government from the appellants and which acquisition has been declared by a Court of law to be null and void legally speaking be entitled to a repossession of the title already sold to appellants from the third party; Lagos State Government without the authority and/or consent of the new owner of that title? The lower Courts held that the respondents are entitled to the title. However, common sense says that you cannot eat your cake and still have it back. That is the simple answer to a very simple case as revealed by the record of appeal. Without making magic or abracadabra, can you eat your cake and still have it back? Fortunately, this is a Court of law which has absolutely nothing to do with magic or abracadabra neither does the Court allow itself to be used as an engine for the perpetration of fraud, in whatever guise. In the case of Ilona v. Idakwo (2003) 11 NWLR (pt. 830) 53 at 89 and 91-92, this Court held, inter alia, as follows: “Where there is a subsisting right of occupancy, it is good against any other rights. The grant of another right of occupancy over the same piece of land will therefore be invalid… Where a party has fully divested himself of all interest in land, no right vests in him to deal with the same property by way of further alienation anymore. It is a matter of nemo dat quod non habet: i.e. he cannot give that which he no longer has.” Per ONNOGHEN, JSC.

The essential elements or factors that constitute a valid contract are quite clear and elementary; that there was: (1) an offer – clearly made; (2) an acceptance of the offer, precisely and unconditionally given; (3) consideration paid (in part or as a whole); (4) intention by the parties to create the legal relationship; and of course (5) legal capacity to enter into the contract, including the capacity to transfer title to property (where that is involved). See the case of Incorporated Trustees of Roh Empire Mission Vs Opara (2017) LPELR – 42463 CA, where it was held:
“A contract is a legally binding agreement between two or more persons, by which right are acquired by the party, in return for acts or forbearance, on the part of the other. It is a bilateral affairs, which requires consensus “ad idem” of the parties. See Odutola vs Papersack Nig Ltd (2006) 18 NWLR (pt 1012) 470; Orient Bank (Nig) Plc vs Bilante Int’l Ltd (1997) 8 NWLR (PT.515) 37, Ashaka vs Nwachukwu (2013) LPELR- 20272 (CA). See also Alfa System Com. Ltd & Ors vs Keji Orisajimi & Ors (2016) LPELR – 40295 (CA), on the five essentials of a valid contract, namely, offer, acceptance, consideration, intention to create legal relationship and capacity to contract, and all the five ingredients must co-exist, before a valid contract can exist.Okubule vs Oyagbola (1990) 4 NWLR (pt.147) 723. Amana Suite and Hotel Ltd vs PDP (2007)6 NWLR (pt.1031) 453.”
See also Abdullahi & Ors Vs El-Rufai & Ors(2021) LPELR – 55627 (SC), where it was held:
“For a valid contract to emerge, there are five elements that must be present and recognizable. These are offer, acceptance, consideration, intention to create legal relationship, capacity to create legal relationship and capacity to contract. Thus, before any contract or agreement can be said to come into existence in law, there must be an unmistaken and precise offer, followed by an unconditional acceptance of the terms mutually agreed upon by the parties thereto. That is to say the parties to the agreement must be in consensus ad idem as regards the terms and conditions freely and voluntarily agreed upon by them. See BILANTE INTERNATIONAL LTD VS NIGERIA DEPOSIT INSURANCE CORPORATION (2011) 6-7 SC (PT IV) 113, OMEGA BANK PLC V. OBC LTD (2005) 8 NWLR (PT 928) 547, AMANA SUITES HOTEL LTD V. PDP (2007) 6 NWLR (PT. 1031) 453. Therefore, where an offer is made but is not accepted, there can be no agreement or contract arising therefrom. An offer is an expression of readiness to contract on the terms specified by the offeror (i.e the person making the offer) which when it is accepted by the offeree (i.e the person to whom the offer is made) will give rise to a valid and binding contract. In other words, it is by acceptance that the offer is converted to a contract. See SPARKLING BREWERIES LTD & ORS V. UNION BANK OF NIGERIA LTD (2001) 10 SCM 163. A mere willingness to enter into a negotiation with a view to entering into a contract cannot be an offer but at best an invitation to treat. See OMEGA BANK PLC V. OBC LTD (SUPRA).” Per OSEJI, JSC.

The above elements cannot be traced, completely, in the purported contract as held by the learned trial Court.

I think the learned trial Court made a lot of dangerous assumptions in its findings, when it claimed that Appellant had admitted the pleadings of the Respondent, paragraphs 1 to 15 of the statement of claim! What the Appellant said in his paragraph 1 of the statement of defence, was:
“(1) The defendant admits paragraph 1, 2, 3, 4, 5, 6, 7, 8, 9 and 15 of the statement of claim.”

Thereafter, the Appellant took his time to controvert the paragraphs 10, 11, 12, 13 and 14 (and other paragraphs of the statement of claim, as seen in his pleading, paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 of the statement of defence.

I therefore see merit in this appeal as I resolve the issues in favour of the Appellant, and allow the appeal. I set aside the decision of the trial Court, delivered on 5/10/2018, and dismiss the Respondent’s claim, at the lower Court.

Appellant is entitled to the cost of this appeal, assessed at N50,000.00, to be paid by Respondent.

Note:
Judgment in this appeal could not be delivered within 90 days as the Hon. Justice, who was first assigned the responsibility could not do so, before he was moved to another Judicial Division, and it had to be reassigned.

BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the leading judgment of my learned brother, ITA GEORGE MBABA, J. C. A. His views on the appeal reflect mine, accordingly, I adopt his judgment as mine. I also allow the appeal.

I abide by all consequential orders contained in the leading judgment including that as to costs.

ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, ITA GEORGE MBABA, JCA and I am in agreement entirely with the reasoning and conclusion reached therein. I concur with the judgment and have nothing better to add. I agree that the appeal is meritorious and I too allow the appeal. I abide by all other consequential orders as contained in the lead judgment.

Appearances:

I. A. ELYAKUB, ESQ. with him, H.A. ELYAKUB, ESQ. For Appellant(s)

JEFFERSON ISIAKPOBEGIE, ESQ. For Respondent(s)