YOUNG SHALL GROW MOTORS LTD. v. ONALADA & ORS (2020)

YOUNG SHALL GROW MOTORS LTD. v. ONALADA & ORS

(2020) LCN/4939(SC)

In The Supreme Court

On Friday, June 19, 2020

SC.453/2015

Before Our Lordships:

Olabode Rhodes-Vivour Justice of the Supreme Court of Nigeria

Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria

Olukayode Ariwoola Justice of the Supreme Court of Nigeria

John Inyang Okoro Justice of the Supreme Court of Nigeria

Uwani Musa Abba Aji Justice of the Supreme Court of Nigeria

Between

YOUNG SHALL GROW MOTORS LIMITED APPELANT(S)

And

MADAM NIMOTA ONALADA 2. MRS. DOYIN OLUNOWO 3. NOSIRU ODUWOLE 4. M.B. ONALAJA 5. PRINCE EMEKA MAMAH (Substituted By The Order Of Court Of Appeal Dated 17/3/2011) RESPONDENT(S)

RATIO

THE PRINCIPLE THAT EQUITY FOLLOWS THE LAW

When one person has by virtue of his conduct intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person’s representative in interest to deny the truth of that thing. See Section 169 of the Evidence Act. Equity follows the law, acts in personam and would not allow a party to use legal technicalities to commit fraud, as the Appellant herein has set itself about to do. sec Per EKO, JSC in BULET INT’L (NIG) LTD & ANOR V. OLANIYI ANOR (2017) LPELR- 42475(SC) (PP. 45-46, PARAS. F-C). PER AJI, JS.C.

WHETHER OR NOT POSSESSION CAN DEFEAT THE TITLE OF A VENDOR

The implication of this is simple: the Appellant did not pay the price of the said property; hence there was neither consideration nor contract. Where the purchase price is not fully paid, there can be no valid sale; notwithstanding that the purchaser is in possession. Possession cannot defeat the title of the vendor. Sec Per OGUNDARF„ JSC in ODUSOGA & ANOR V. RICKETTS (1997) LPELR- 2256(SC) (PP. 16-17, PARAS. G-C). It follows therefore generally, that where a fundamental term in a contract is left undecided and undone, then there is no contract. See Per ALOYSIUS IYORGYER KATSINA-ALU, JSC in SALIBA V. YASSIN (2002) LPELR-S059(SC) (P. 6, PARAS. B-C). PER AJI, JS.C.

WHETHER OR NOT THE COURT CAN RE-FORMULATE ISSUES SET DOWN FOR DETERMINATION BY PARTIES

A Court is not obligated to adopt the issues set down for determination by an Appellant, as a Court is free to adopt the issues as crafted by either of the parties so long as the issues arise from the grounds of appeal. Again, a Court is at liberty to re-formulate issues from that of any of the parties in order to give it precision and clarity, the condition being that, the issues so identified by the Court flow from the grounds of appeal as the Court has to do that which is convenient within the bounds of the law in getting at the answer to the question or questions raised and in so doing, deliver justice. See Per PETER-ODILI, JSC in AUWALU V. FRN (2017) LPELR-43824(SC) (PP. 32-33, PARAS. F-E), relying on UNITY BANK V BOUARI (2008) 7 NWLR (PT. 1086) 333 AT 401; DADA V DOSUNMU (2006) 9 SCNJ 71.
The essence of the formulation of issues is to reduce the grounds of appeal into terse, compact formulations which take cognizance and consideration of the same issues running through more than one ground of appeal. To this end, where issues for resolution in an appeal are formulated by the parties, an appellate Court can adopt, re-frame or re-formulate its own issues which are, in its opinion, proper for the determination of the appeal. A party who complains about the formulation of issues by the Court must say what injustice has been done to him by such formulation or fair hearing denied. In the absence of such evidence, an appellate Court cannot reverse the decision of the lower Court. The formulation of the issue by the Court must result in miscarriage of justice for this Court to intervene in favour of the Appellant. See Per TOBI, JSC in NWANA V. FCDA & ORS (2004) LPELR-2102(SC) (Pt. 15-16, PARAS.G-A). PER AJI, J.S.C.

THE DEFINITION OF A BONA FIDE PURCHASER FOR VALUE

UWANI MUSA ABBA AJI, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Lagos Division, delivered on 31/12/2013, unanimously dismissing the Appellant’s claim and affirming the judgment of the High Court of Lagos, delivered on 6/5/2005.

The Appellant, a transport company and a tenant of the 1st-4th Respondents, sued them at the trial High Court claiming an order of specific performance of the agreement for the sale of the property to her situate at No. 1, Ikorodu Road, Jibowu, Yaba, Lagos.

The 1st-4th Respondents’ defence was that they went into another transaction because the Appellant failed to consummate the transaction and that warranted the 1st-4th Respondents’ decision to sell the land to the 5th Respondent.

The 5th Respondent in this appeal counter-claimed for an order of declaration that he is the rightful owner of the property in question by virtue of the transaction between him and 1st-4th Respondents, amongst other reliefs.

At the end of the trial, the Court held that the 5th Respondent is the rightful owner of the property by virtue of his transaction with the 1st -4th Respondents and entitled to the right of occupancy in respect of the said property, and dismissed the Appellant’s claim.

Dissatisfied, the Appellant appealed to the Court of Appeal and the Court below unanimously dismissed the appeal and affirmed the judgment of the High Court. The Appellant has further appealed to this Honourable Court.

ISSUES FOR DETERMINATION:
The issues for determination, I shall extrapolate from the 4 issues formulated by the Appellant with those of the Respondents are as follows:
1. Whether there was no valid and subsisting contract of sale of the property in dispute between the Appellant and the 1st-4th Respondents to transfer title to the Appellant.
2. Whether the 5th Respondent was a bona fide purchaser for value without notice.
3. Whether the failure of the lower Court to consider the Appellant’s issues 2 and 3 did not amount to denial of fair hearing.

ISSUE ONE:
Whether there was no valid and subsisting contract of sale of the property in dispute between the Appellant and the 1st-4th Respondents to transfer title to the Appellant.
The Appellant’s issues 1 and 2 fit under this issue for consideration.

The Appellant’s main argument under this issue is that the lower Court was wrong when it held that photocopies of bank draft could not take the position of consideration sufficient to induce a reasonable party into contract. He submitted that what the 1st-4th Respondents are contesting is that the photocopies of the drafts delivered to them are not legal tender and as such no consideration passed from the Appellant to the 1st-4th Respondents with respect to the property in dispute.

The Appellant’s learned Counsel urged this Honourable Court to hold that the Appellant furnished consideration in form of concrete promise (the issuance of a Zenith Bank draft for 18 million requested by the 1st -4th Respondents as purchase price) and the delivery of the photocopies of the said Zenith Bank draft to the 1st-4th Respondents’ solicitor on 7/5/2001 for sighting represents something of value in the eye of the law. He further urged the Court to allow this appeal as the loss of the Appellant cannot be remedied in damages having been a sitting tenant in the property in dispute since 1998 and still in possession as of date.

The Respondents’ learned Counsel argued that an action for specific performance implies the existence of a valid contract, the breach of which is sought to be remedied by an order for specific performance. It is submitted that in the instant appeal, there was no valid and enforceable contract between the 1st-4th Respondents and the Appellant capable of being enforced by an order for specific performance.

It was his submission, that it is clear from the weight of evidence adduced before the trial Court, the findings and reasoning behind the decisions of the two Courts below that the Appellant failed to fulfill the requirements of a valid contract and therefore is not entitled to an order of specific performance. He urged the appeal to be dismissed.

Parties are bound by their pleadings and one will not be allowed to deviate there from. The Appellant pleaded in paragraphs 17, 18 and 19 of its statement of claim summarily that it issued on 4/5/2001 a bank draft of N18Million in the name of Counsel for the 1st-4th Respondents and that same to be delivered to the Respondents by their Counsel on 7/5/2001 along with the vetted Deed of Assignment. He admitted that the 1st-4th Respondents accepted that they received only photocopies of the drafts after the deadline of 5/5/2001 at 11am.

In defence, the 1st-4th Respondents specifically at paragraph 15 averred that:
Paragraph 17 and 18 of the Statement of Claim are false. The Plaintiff only forwarded to the 7th Defendant photocopies of a draft 00012741 of Zenith International Bank Ltd for N18 Million, and draft No.00012746 for N233,000. The original being the real legal instrument of money were (sic) never forwarded. The Defendant further plead that, this was further proof of Plaintiff (sic) bad faith and a culmination of the stalling efforts of the Plaintiff.

It appears that there was some hide and seek game going on between the Appellant and the 1st-4th Respondents in respect of the sale of the disputed property. It must be noted also that the transaction spanned some years between the parties when eventually an offer was made by the Appellant to the 1st-4th Respondents on 4/5/2001 vide a bank draft of N 18 Million. Unfortunately, another person swooped in and bought the property from the 1st-4th Respondents. What happened then that the Appellant could not secure the property? Was it robbed or what? It is obvious that the inchoate transaction was eventually truncated!

Let me quickly illustrate the transaction in this nature:- The 1st-4th Respondents advertised the property situate at No.1 Ikorodu Road, Jibowu, Yaba, Lagos and the Appellant offered to buy at N18 Million and negotiations started and since the property was advertised, the 5th Respondent eventually completed the transaction and bought it ahead of the Appellant.

In a dispute over sale of land generally, it has been held that to constitute a valid sale of land, there must be; 1. Payment of the purchase price, 2. Purchaser is let into possession by the vendor, and 3. Presence of witnesses.
See Per OGBUAGU, JSC in CHABASAYA V. ANWASI (2010) LPELR-839(SC) (PP. 29-30, PARAS. E-C), Per SANUSI, JSC in ATANDA V. HON. COMMISSIONER FOR LANDS AND HOUSING, KWARA STATE ANOR (2017) LPELR-42346(SC) (PP. IS-20, PARAS. F-A). There are therefore essentially three ingredients of a valid contract for the sale of land, viz: an offer, an unqualified acceptance of that offer and a consideration. sec CHESHIRE AND FIFOOT, LAW OF CONTRACT, 9TH EDITION PP. 27 31, TSOKWA MOTORS LTD. V. UBN LTD. (1996) 9 NWLR (PT.471) 129 AT 145, PTI V. UWAMU (2001) 5 NWLR (PT.705) 112 AT 222.

In the present transaction for the sale of the property at No. 1 Ikorodu Road, Jibowu, Yaba, Lagos, it must be borne in mind that although the parties were represented by Counsel, there was nevertheless no unqualified acceptance or any consideration furnished.

From the deluge of evidence during the trial, it was manifest that the transaction was cut short or incomplete for a formal and valid contract of sale of land to have evolved and birthed.

At page 201, PW 1 under cross examination divulged that ”…The consideration of the sum of N18,000,000.00 was rejected. They refused to collect the original bank draft. I sent a photocopy of the draft to the family. We did not send the original bank draft to the family.”

Similarly, at page 203 of the record, under cross examination, it was revealed that “The sum of N18,000,000.00 net was stated there as the consideration. The 1st-5th Defendants were there stating that the buyer, the Plaintiff was still to pay some additional sum over the N18 million, described as ‘all rates, taxes, fees and charges in pursuance of perfection of change of title “. Furthermore, PW1 at page 191 stated that “I agree that the documents I took to Dr. Layonu’s firm on that day (03/05/01) were not the final documents because…”

All these pieces of evidence came directly from the Appellant’s witnesses revealing that there was no concluded transaction before it was called off by the 1st-4th Respondents.

Again, the 1st-4th Respondents at the trial led evidence agreeing with that of the Appellant that there was no concluded or valid contract between them and the Appellant enforceable in law. DW1 at page 221 inter alia evinced that “When it became obvious that the Plaintiff would not attend the meeting, the family was very upset and they left in frustration, saying they would not deal with the Plaintiff anymore.” DW2 gave his own part of the evidence at page 228 that “…at the 4th of May, the position of the family was that the transaction should be concluded on 05/05/01. When we did not see PW1 on the 5th of May, my family got angry and decide (sic) to of (sic) or get about dealing with the claimant.”

DW3 similarly exposed at page 232 that “I remember 05/05/01. Members of my family were present in Dr. Layonu’s office on that day, for the conclusion of the contract transaction. The transaction was not concluded because the Plaintiff did not show up. That is neither the company’s representative nor any other representative showed up on that date.”

In the instant appeal, although the bank draft issued the 1st-4th Respondents’ Counsel may suffice and qualify as a bill of exchange to bind the parties, these points must be carefully examined:
1. The 1st-4th Respondents did not have the bank draft but the photocopies,
2. The Appellant instructed that they should not be given the original,
3. The Appellant nor his representative did not show up to conclude the transaction,
4. The 1st-4th Respondents decided not to deal with the Appellant any more on the land transaction following the conduct of the Appellant,
5. The Appellant supposedly informed the 5th Respondent (the present purchaser of the said property) that he was no longer interested in the transaction.

All the above are pointers that the Appellant by express conduct did not want to conclude the transaction and to establish a valid contract. Therefore, where an agreement is inchoate and has not gone beyond negotiations, it cannot be enforced as a concluded contract. see Per AGBAJE, JSC in KANO STATE URBAN DEVELOPMENT BOARD V. FANZ CONSTRUCTION CO. LTD (1990) LPELR-1659(SC) (P. 82, PARAS. A-B).

More so, why did it take years for the Appellant (who had every opportunity and privilege) to conclude the transaction, whereas it took just few days for the 5th Respondent to conclude?

Equity follows the law, acts in personam and would not allow a party to use legal technicalities to commit fraud, as the Appellant herein has set itself about to do. sec Per EKO, JSC in BULET INT’L (NIG) LTD & ANOR V. OLANIYI ANOR (2017) LPELR- 42475(SC) (PP. 45-46, PARAS. F-C).

Bank draft can be accepted as cash equivalent in some business transaction and all depends on the contractual terms and agreement between the parties. However, can the photocopy of the bank draft issued to the 1st-4th Respondents qualify as consideration based on the contract between the parties? Before, there is a contract of sale of land, there must be a definite offer by the Offeror (the Appellant) and a definite acceptance by the Offeree (the 1st- 4th Respondents). Contracts are enforceable when there is consideration. Consideration is something that indicates conclusively that the Promisor intended to be bound. Consideration is thus mandatory for enforceability. There are some contracts where it is difficult to identify offer, acceptance and consideration. In such a situation, a valid contract exists when the parties are ad idem on all the terms of their agreement, and this is established by all sides to the agreement appending their signatures to the contract document. See Per RHODES-VIVOUR, JSC in ABBA v. SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED (2013) LPELR-20338(SC) (PP. 32- 33, PARAS. G-D). In fact, PW2 admittedly conceded to this at page 209 that “I will not say that a copy of a bank draft is acceptable as payment”.
Equally evident and demonstrable is that both the Appellant and the 1st-4th Respondents have been at cross roads and never came to consensus ad idem concerning the sale of the property at No. 1 Ikorodu Road, Jibowu, Yaba, Lagos. This impelled the lower Court to rightly and appositely hold at page 651 that “It is surprising that a purchaser who initiated bank drafts towards payment would for some clever reasons withhold the original drafts and hand-over photocopies and insist that such serves as sufficient consideration, this is certainly far from it… ”
The implication of this is simple: the Appellant did not pay the price of the said property; hence there was neither consideration nor contract. Where the purchase price is not fully paid, there can be no valid sale; notwithstanding that the purchaser is in possession. Possession cannot defeat the title of the vendor. Sec Per OGUNDARF„ JSC in ODUSOGA & ANOR V. RICKETTS (1997) LPELR- 2256(SC) (PP. 16-17, PARAS. G-C). It follows therefore generally, that where a fundamental term in a contract is left undecided and undone, then there is no contract. See Per ALOYSIUS IYORGYER KATSINA-ALU, JSC in SALIBA V. YASSIN (2002) LPELR-S059(SC) (P. 6, PARAS. B-C).

From the foregoing, it is evident that the negotiations between the parties had not crystallized into a binding contract, and afortiori, there could have been no breach of contract requiring specific performance or enforcement of same. PW1 clearly settled and sealed the case that there was no consideration or valid contract when at page 201 he exposed that ” the consideration of the sum of N18,000, 000.00 was rejected. They refused to collect the original bank draft.” In contract of sale of land, the law is well settled that 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. See Per SANUSI, JSC in ACHONU V. OKUWOBI (2017) LPELR-42102(SC) (P. 35, PARAS. E-G). The Appellant has not therefore been conferred with any inurement or right for specific performance when he has not fulfilled the condition precedent for a valid contract of sale of land.
This issue is resolved against the Appellant.
ISSUE TWO:
Whether the 5th Respondent was a bona fide purchaser for value without notice.
It is contended by the Appellant’s learned Counsel that the sale of the property in dispute to the 5th Respondent is not valid and should be nullified since the 5th Respondent became aware of the transaction between the Appellant and the 1st-4th Respondents to buy the property for N18 Million. He urged the resolution of this issue in favour of the Appellant.

The 5th Respondent on the other hand submitted that having made enquiry from the Appellant when he and others visited the Appellant’s manager in his office, he was informed by the manager that he was not interested in the property and that was why he could not pay for it. with this information, he paid for the property at the cost of N20 Million. He asked that this issue be resolved against the Appellant.

The Appellant made this its 3rd issue and therefore I cannot gloss over it.

Having considered how the Appellant blew off a golden opportunity he had to buy the disputed property under its possession and tenancy, the 5th Respondent came from behind to grasp it. At page 236, the 5th Respondent gave evidence that: ”Before buying the property, I asked Udeji why the sitting tenant could not buy the property. He informed me that the property was placed on public offer because the Claimant could not agree with the family on buying the property. I doubted the truth of this statement so I called upon my son and the manager of my Lagos office to both go to Obianodo’s office to confirm why he could not buy the property. We all went to see him together and Obianodo told me that he was not interested in buying the property and that is why he has not paid for it…We left and I agreed with my people that since we have discovered that the Claimant was not interested, we should buy the property. So I paid the sum of N20 Million to the family.”

Having considered the transactional and contractual antecedents between the Appellant and the 1st-4th Respondents, the 5th Respondent in a snap concluded every process and bought the property that took the Appellant years to buy or ordinarily pay for. In fact, he paved a way for the 5th Respondent and induced him to buy the property when he told him that he was no longer interested and gave cogent reason for not doing so. He is therefore estopped from saying or acting otherwise.

A bona fide purchaser for value is one who has purchased property for valuable consideration without notice of any prior right or title, which if upheld, will derogate from the title which he has purported to acquire. See Per FABIYI, JSC in BEST (NIG) LTD V. BLACKWOOD HODGE NIG LTD 85 ANOR (2011) LPELR-776(SC) (P.28, PARAS. D-E).
It has been proved already that there was no contract of sale of the property in dispute between the Appellant and the 1st-4th Respondents when the 5th Respondent came in to conclude the contract and pay the purchase price for the property. Thus, the plea of the Appellant that the 5th Respondent is not a bona fide purchaser for value without notice cannot be sustained or is completely out of place. On the other hand, the 5th Respondent has proved that he bought the said property unencumbered by previous legal or equitable title whatsoever and this was corroborated by the Vendor, the 1st-4th Respondents. The matter then is sealed.
Where a plea of bona fide purchaser for value is being made, there must be a valid transfer of the property to the man raising that plea. So where a deed of purchase or transaction upon which the plea is founded, transferred or conferred no estate or title to the purchaser for value, the plea is absolutely useless. see Per WALI, JSC in BRAIMAH V. ABASI ANOR (1998) LPELR-801(SC) (P. 28, PARAS. C-F). The 5th Respondent however has all the requisite documents for the transfer of title to him.
This issue is unreservedly resolved against the Appellant.

ISSUE THREE:
Whether the failure of the lower Court to consider the Appellant’s issues 2 and 3 did not amount denial of fair hearing.

The Appellant’s learned Counsel argued that the failure of the lower Court to consider its issues 2 and 3 led to a miscarriage of justice and a breach of the Appellant’s right to fair hearing. Further, that the judgment of the lower Court would have been different and favourable to the Appellant had those issues been considered by the lower Court. He urged this Honourable Court to consider these issues based on Order 8 Rule 12 of the Supreme Court Rules and to allow this appeal.

The Respondents argued hereunder that the adoption of the 5th Respondent’s issues for determination properly determined the crux of the issues between all the parties. That there is nothing contained in the Appellant’s issues 2 and 3 which is not substantially embedded and considered in the 5th Respondent’s issues 1 and 2 for determination, which the Court below adopted as the issues that properly determined the appeal. It is submitted also that the Appellant has not shown how the alleged non-consideration of its issues 2 and 3 led to a miscarriage of justice and alleged breach of the Appellant’s right to fair hearing, and neither did he show how the judgment of the lower Court would have been different and favourable to the Appellant. He urged this Court to affirm the concurrent judgments of the two lower Courts and dismiss this appeal in its entirety.

The issues 2 and 3 the Appellant alleged were desolated and abandoned by the lower Court thereby foisting denial of fair hearing and injustice on it, are:
2. Whether the claimant/ Appellant was entitled to an order of specific performance
3. Whether the learned trial judge was right when she granted the 6th defendant’s claim that the defendant is the rightful owner of No 1 Ikorodu Road Jibowu, Yaba, Lagos by virtue of the transaction between him and the 1st-5th defendants.

The lower Court having listed all the issues formulated for consideration by all the parties in their respective order at pages 635-636, amalgamated and adopted them under the 2 issues formulated by the 5th Respondent at page 637 as fitly apt for the determination of the appeal. The 5th Respondent’s issues the lower Court adopted are:
1. Whether the trial Court was right in refusing the appellant’s prayer for specific performance in view of the overall circumstances of this case.
2. Whether the trial Court was right in granting the 6th (Now 5th) respondent’s claim as the rightful owner of the property lying and situate at No. 1 Ikorodu Road, Jibotvu, Yaba Lagos.

Looking microscopically at the Appellant’s issues 2 and 3 and the 5th Respondent’s 2 issues above will only reveal that they are Siamese twins that can only be differentiated by the words and semantics used by the respective learned Counsel but pre-eminently same in every substance and content. I personally cannot see any difference in these 2 issues that the Appellant cries that its issues 2 and 3 were abandoned by the lower Court.

Obviously, this must have incited the lower Court to wisely adopt and merge them when at page 636 it considered that:
The issues submitted by parties in this appeal appeal to be a duplication. I am sure resolution of the issues submitted by the 5th respondent will sufficiently resolve the issue in controversy between the parties…

A party who complains about the formulation of issues by the Court must say what injustice has been done to him by such formulation or fair hearing denied. In the absence of such evidence, an appellate Court cannot reverse the decision of the lower Court. The formulation of the issue by the Court must result in miscarriage of justice for this Court to intervene in favour of the Appellant. See Per TOBI, JSC in NWANA V. FCDA & ORS (2004) LPELR-2102(SC) (Pt. 15-16, PARAS.G-A).

There is no iota of evidence before me that injustice or denial of fair hearing was wrought on the Appellant because of the adoption of the 5th Respondent’s issues by the lower court. This being a concurrent decision of the trial and lower Court, the Appellant’s case is irreparably defective for him to have the hand-shake or kiss of justice from this Apex Court.

I therefore resolve this issue against the Appellant. The appeal is hereby dismissed and I affirm the decision of both the trial and lower Courts. Cost of this suit is assessed at N500,000.00 against the Appellant in favour of all the Respondents.

OLABODE RHODES-VIVOUR, J.S.C.: I had the privilege of reading in advance the leading judgment just delivered by my learned brother Abba AJI JSC.

For the reasons given, I agree that the concurrent findings of both Courts below are correct. There is no merit in this appeal. I too, dismiss it with costs as proposed in the leading judgment.

MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Uwani Abba Aji, JSC and to register the support I have in the reasonings leading to the decision, I shall make some remarks.

This is an appeal against the judgment of the Court of Appeal, Court below or Lower Court, Lagos Division, Coram: Sidi Bage JCA (as he then was), Joseph Shagbor Ikyegh, Tijani Abubakar JJCA which judgment was delivered on the 31st December, 2013.

BACKGROUND FACTS:
By an Amended Writ of Summons (pages 14 – 16) and Statement of Claim pages 3 – 6 of the record the claimant now Appellant claims against the defendants jointly and severally the following reliefs:-
1. An order of specific performance of the agreement for the sale of property No. 1 Ikorodu Road, Jibowu, Yaba, Lagos registered as No. 4 at page 4 in volume 951 in the Register of Deeds kept at Lagos State Land Registry, Lagos, Nigeria to the Plaintiff’s company.
2. An order of specific performance directing at least two of the 1st – 4th defendants to execute the Deed of Assignment and Power of Attorney already vetted and amended by the 7th defendant and the plaintiff’s solicitors and to execute all necessary forms required before consent of the government to the transaction can be granted and to collect the Bank drafts for the sum of N18 Million and N233,000.00 already issued in the name of Layonu, Oyeleke & Okwudiafor representing the purchase price of the property at No. 1 Ikorodu Road, Jibowu, Yaba, Lagos and arrears of rent.
3. An order directing the plaintiff to continue to remain in possession pursuant to the said agreement of sale of the property No. 1 Ikorodu Road, Jibowu, Yaba.
4. And further consequential reliefs as the Court shall deem fit to make.

The 6th defendant JAMES OGBONNAH MAMAH now 5th Respondent in this appeal in his Statement of Defence pages 66 – 69 of the record counter claimed as follows:-
a. An order of declaration that the 6th defendant is the rightful owner of No. 1 Ikorodu Road, Jibowu, Yaba, Lagos by virtue of transaction between him and 1st – 5th Defendants.
b. An order of declaration that the 6th defendant is entitled to the right of occupancy over the property at No. 1 Ikorodu Road, Jibowu, Yaba, Lagos.
c. An order directing the plaintiff to quit and deliver up possession of the premises at No. 1 Ikorodu Road, Jibowu, Lagos to the 6th defendant.
d. The sum of N1 million pending from 18/6/2001 for use and occupation of the property at No. 1 Ikorodu Road, Jibowu, Lagos.

The 1st-5th defendants relied on Statement of Defence pages 47- 49 of the record and Rejoinder pages 47 – 49 of the record. The 1st defendant died during the course of the proceedings leaving 2nd – 5th defendants who now represent Onalaja family as 1st – 4th Respondents in this appeal.

The claimant now appellant relied on Reply dated 4th March, 2003 and defence to counterclaim pages 177 – 179 of the record.

The claimant called three witnesses. The 1st – 5th defendants called three witnesses. The 6th defendant testified himself and called one witness.

At the conclusion of the trial, the learned trial Judge dismissed the claimant’s case and entered judgment for the 6th defendant in the following terms.
“1. It is hereby declared that the 6th defendant is the rightful owner of No. 1, Ikorodu Road, Jibowu, Yaba by virtue of his transaction with the 1st – 5th defendants.
2. It is further declared that the 6th defendant is entitled to the right of occupancy in respect of the said property.
3. The claim for possession of the premises fails and it dismissed.
4. The claim on N1,000,000.00 for use and occupation in respect of the premises also fails and is dismissed.”

The claimant dissatisfied with the judgment of the High Court filed Notice of Appeal, pages 341 – 361 of the record and amended Notice of Appeal, pages 416 – 425 of the record.

On the 23rd day of March, 2016 date of hearing, learned counsel for the appellant, P. O. Jimoh – Lasisi SAN adopted the brief of argument filed on the 8/4/2016 and deemed filed on 11/4/17 in which were crafted four issues for determination which are thus:-
1. Whether the Lower Court was right when it held that the appellant did not furnish consideration and as such there was no valid contract between the appellant and the 1st – 4th respondents which is capable of being enforced by an order of specific performance (Grounds 1, 2 and 4).
2. Whether or not parties in this case made time of essence or any deadline was given by Appellant by the 1st – 5th Defendants to conclude the contract. (Grounds 5, 4 and 6).
3. Whether or not 6th Defendant was a purchaser for value without notice. (Ground 7).
4. Whether the Lower Court was right when it failed to consider appellant’s issues numbers 2 and 3 in the appellant’s Brief of Argument filed on 8th May 2013 and whether this failure breached Section 36 of the Constitution of the Federal Republic of Nigeria 1999 as amended. (Ground 3).

The brief of the 1st – 4th respondents filed on 19/9/2016 was adopted as argued in the absence of the 1st – 4th respondents and counsel though served on the 18th March, 2020 and three issues were formulated which are as follows:-
1. Was the Court below right when it held in concurrence with the trial Court that photocopies of bank drafts delivered to the 1st to 4th respondents’ solicitors by the appellant cannot be regarded as consideration. (Grounds 1, 2 and 4).
2. Did the Court below in fact fail to consider appellant’s Issues 2 and 3 before it, in alleged violation of Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), when in fact the Court below adopted the 5th respondent’s issues 1 and 2 (which were the equivalent of the appellant’s issues 2 and 3 at the Court below) as the issues for the determination of the appeal before the Court below. (Ground 3).
3. Whether the Court below was right in affirming the judgment of the trial Court. (Grounds 5, 6 and 7).

Chief Frank Agbedo, learned counsel for the 5th respondent adopted the brief of argument filed on 3/5/17 in which were identified three issues for determination which are:-
i. Whether the Court of Appeal was right in rejecting the appellant’s claim for specific performance of a purported contract of sale for want or lack of a valid and legally binding contract between the appellant and the 1st – 4th respondents in this case.
ii. Whether the Court of Appeal was right in not disturbing or interfering with the findings of the learned trial judge in her judgment, to the effect that time was indeed of essence in the transaction and the appellant failed to meet the stipulated deadline for payment.
iii. Whether the Court of Appeal was right in dismissing the appellant’s case in its entirety, and affirming the judgment of the trial Court granting the 5th respondent’s claim as the rightful owner of the property at No.1, Ikorodu Road, Jibowu, Yaba, Lagos State and entitled to a right of occupancy thereof, in view of the whole circumstances of this case.

I shall make use of the third Issue of the 1st to 4th respondents as it meets the essence of the appeal and so it becomes a sole issue.

SINGLE ISSUE:
Whether the Court below was right in affirming the judgment of the trial Court.
The appellant submitted that the findings of the Lower Court on the effect of paragraph 19 of the statement of claim is not supported by law as paragraph 16 of the 1st – 5th defendants and 7th defendant Statement of Defence is an admission of paragraph 19 of the Statement of Claim. That the law is that what is admitted need no further proof. He referred to Section 123 of the Evidence Act.

That paragraph 19 of the Statement of Claim and the above evidence of PW1 should have been treated as unchallenged and acted upon by the Lower Court. He cited Narindex Trust Ltd v. NICMB Ltd. (2001) 4 SC (Part 11) 25.

For the appellant, it was submitted that from the statement of claim and the evidence adduced, the plaintiff/appellant issued bank drafts to pay for the purchase of the land in dispute from the 1st – 5th defendants who had knowledge of those drafts through their solicitors to whom photocopies of the drafts were delivered on 7th May 2001 with the Deed of transfer partly executed by the plaintiff/appellant for onward delivery to the 1st – 5th defendants to execute their own part of the Deed of Transfer before the original of the bank drafts could be delivered to them.

That the evidence of PW1 was not challenged by the 1st – 4th defendants witnesses or even under cross-examination. Also that PW2’s testimony was unchallenged under cross-examination by counsel to 1st – 5th defendants.

That the agreement between the appellant and the 1st – 5th respondents is clear, certain and unambiguous and same is capable of being enforced by the Court. He relied on Bilante International Ltd. v Nigerian Deposit Insurance Corporation (2012) 15 NWLR (Pt.1270) 107 at 431.

Learned Silk, Jimoh – Lasisi for the appellant stated on that by the appellant’s offer letter of 18th April 2001, the 1st – 4th respondents acceptance letter of 21st April 2001, the issuance bank drafts for N18 Million Naira and 233,000 Naira on 4th May 2001 for the purchase of the property in dispute and the delivery of the said bank drafts along with a deed of transfer partly executed by the appellant to the 1st-4th respondents for their signatures without objection from the 1st – 4th respondents’ solicitors constitute estoppel against 1st – 5th respondents precluding them from reneging in the performance of their own part of the contract. He referred to Alhaji Bamidele Lawal v Union Bank of Nigeria Plc & Ors. (1995) 2 NWLR (Pt.378) page 407 at 420 – 421.

That once a bank draft is drawn or issued, the fact is that the money on it is available to cash. He cited Diamond Bank Ltd. v Partnership Investment Co. Ltd. (2009) 18 NWLR (Pt.1172) 101 – 102.

That Appellant had completed all the law placed on him to conclude the contract between it and the 1st – 5th respondents and it was the latter that refused to discharge the duty placed on them under the said contract.

For the appellant, it was contended that apart from the evidence of delivery given by DW2, there was no other evidence to support that oral evidence of DW2. Again it was stated that the conduct of the 7th defendant who received the documents delivered by the appellant’s solicitor on 7th May 2002 had cast doubt and aspersion on the oral testimony of DW2 as to the delivery of the letter dated 4th May 2001 to the appellant’s solicitor or that there was a meeting that took place at all on 5th May 2001 to which appellant or its solicitor was invited. That the Court should note that the respondents waited till 10th May 2001 before returning appellant’s documents. That the 1st – 5th defendants and 7th defendant failed to prove the delivery of the letter dated 4th May 2001 by standard proof of delivery of letters laid down by the Supreme Court in the case of Nlewedim v Uduma (1995) 6 NWLR (Pt.402) page 393 at 394.

Learned Senior Advocate for the appellant submitted that paragraphs 20 – 21 of the appellant’s statement of claim and the evidence of PW2 and DW4 (the 6th Defendant) equally referred to showed clearly that the 6th defendant was aware that the appellant was about to conclude the transaction to purchase the property in dispute yet, the 6th defendant went ahead to pay for the property in dispute and that he is not a purchaser for value without notice as he was aware that the Claimant was about to pay for the property in dispute. Therefore, that the sale of the said property to the 6th defendant is invalid and should be nullified.
That 1st – 5th respondents and solicitor did not act in good faith.

Responding, learned counsel for the 1st – 4th respondents, Kunle Ayorinde Esq., contended that the trial Court discredited the evidence of PW1 which appellant relied on and the Court below went along the same line as it was the primary duty of the trial Court to assess the credibility of witnesses. He cited Attah v State (2010) 10 NWLR (Pt.1201) 190 at 213; Nnadozie v Mbagwu (2008) 3 NWLR (Pt.1074) 363 at 381 – 382.

Learned counsel for 1st – 4th respondents, Mr. Ayorinde stated on that a contract involves offer and acceptance coupled with provision of consideration and as such, the validity of a contract comes to be. That the appellant failed to offer valuable consideration which has been described as the inducement to a contract for the existence of a valid contract. He relied on Ezenwa v Oko (2008) 3 NWLR (Pt.1075) 610 at 629; Chabasaya v Anwasi (2010) 10 NWLR (Pt.1201) 163 at 189; Abba v SPDCN Ltd. (2013) 11 NWLR (Pt.1364) 86 at 114.

He stated further that the trial Court having rightly rejected and discredited evidence of PW1 as unreliable that evidence cannot be confirmed by the evidence of PW2 which the trial Court rejected. He cited Obri v State (1999) 7 NWLR (Pt.513) 352 at 361 and 365.

That from the evidence there was nothing done by the 1st – 4th respondents which could have misled the appellant.

For the 1st – 4th respondents, it was further submitted that there was nothing on which this Court can disregard and go against the concurrent findings of facts of the two Lower Courts well-grounded judgments and borne out of the record. He relied on British Airways v. Atoyebi (2014) 13 NWLR (Pt.1424) 253 at 294 and 303; Unilorin v Akinola (2014) 12 NWLR (Pt.1422) 435 a6 463; Dong v Attorney General Adamawa State (2014) 6 NWLR (Pt.1404) 555 at 578 – 579.

That appellant has not shown any miscarriage of justice and an alleged breach of the appellant’s right to fair hearing. He cited Okotie – Eboh v Manager (2004) 18 NWLR (Pt.905) 242 at 277.

For the 1st – 4th respondents, it was contended that the purported contract is not capable of specific performance as there is nothing to enforce in law and appellant had failed to furnish consideration which is a fundamental requirement to a valid contract. He cited Help (Nig.) Ltd. v Silver Anchor (Nig.) Ltd. (2006) 5 NWLR (Pt.972) 196 at 208 etc.

That there was documentary evidence to back up the testimonies of the 1st – 4th respondents’ witnesses including Exhibits D2, DA, D5 and the appellant’s failure to adhere to the stipulated time was fatal to appellant’s case in asking for specific performance. He cited many judicial authorities.

For the 5th respondent, learned counsel, Chief Frank Agbedo stated that the Court below was right in not interfering with the findings of the learned trial judge to the effect that time was indeed of the essence in the transaction and that the appellant had failed to meet the stipulated deadline for payment. He cited Coker v Ajewole (1976) 9 – 10 SC etc.

The long and short of this dispute are seen in the point of view of the appellant on the one side asking for the appeal to be allowed and the decision of the Court below set aside and on the other side as set up by the respondents that the appeal lacks merit.

A recourse to the background facts being that the appellant was a tenant to the 1st – 4th respondents in their family property at No. 1 Ikorodu Road, Jibowu, Lagos State and the appellant sought to buy the said property from the 1st – 4th respondents who were willing to sell. The two parties then set out in negotiations without reaching a consummation, at which the 1st – 4th respondents sold to the 5th respondent which transaction provoked the appellant into the action by writ of summons for a specific performance of the agreement between appellant and the 1st – 4th respondents and for the 1st – 4th respondents to collect the bank drafts for the sum of N18 Million and N233,000.00 already issued representing the purchase price of the property now in dispute and for the appellant to remain in possession pursuant to the said agreement.

Clearly the action is one of breach of contract for which specific performance is sought. In a long line of decided cases such action is only positively claimed where there is a valid, solid, subsisting and enforceable contract. This is because the Courts will not decree specific performance if the contract suffers some defect such as informality, mistake or illegality which makes the contract invalid or unenforceable. In other words, a non-legally binding contract is incapable of being specifically enforced in equity. See Best Nig. Ltd. v Blackwood Hodge Ltd. (1998) 10 NWLR (Pt.569) 253; Help (Nig.) Ltd. v Silver Anchor (Nig.) Ltd. NWLR (Pt.972) 196 at 208 per Katsina – Alu jsc (as he then was); U.I.C. Ltd. v T.A. Hammond (Nig.) Ltd. (1998) 9 NWLR (Pt.565) 340; ACPEL (Nig.) Ltd. v FBN PLC. (2014) 6 NWLR (Pt.1402) 158.

The basic principle in a breach of contract for which specific performance is claimed having been shown above, it becomes necessary to conceptualise the principle to the facts prevailing in this case.

At the Court of trial the PW1, Mr. Ike Onyefulu, a Lawyer testified in examination in chief as follows:-
“In the course of negotiation, the plaintiff offered a purchase price of N18 Million but not before the plaintiff had requested that the letters of administration be first had and obtained, before the transaction could …..The plaintiff’s offer of N18 Million was made in a letter dated 12/3/01, addressed to the law firm of Layonu, Oyeleke and Okwudiafor the 1st – 5th defendants” (Exhibit P1).

Concerning the purported acceptance of the said offer, PW1 at page 167 of the Record of Appeal testified as follows; “The letter from the 5th defendant seemingly materialised on the 23rd April, 2001. On that date, the plaintiff received a letter of same date, from the Firm of Layonu, Oyeleke & Okwudiafor acting for the 1st – 5th defendants; whereby they enclosed a letter dated 21/04/01 from the 1st – 5th defendants. By the said letter, the 1st – 5th defendants stated that they have accepted the plaintiff’s offer of N18 Million, as purchase price for the land in dispute. (Admitted in evidence with attachments and marked as Exhibit P4, P4(a) and P4(b) respectively)”.

Under cross-examination by Chief Benson SAN, PW1 at page 203 of the Record of Appeal, while answering question regarding the content of the said letter of acceptance by the 1st – 5th defendants (Exhibit P4a), stated as follows, “I see Exhibit P4A. I now read. The sum of N18,000,000.00 net was stated there as the consideration. The 1st – 5th defendants were there stating that the buyer, the plaintiff was still to pay some additional sum over the N18 Million, described as ‘all rates, taxes, fees and charges in pursuance of perfection of change of title.”

PW1 still under cross examination by Chief Benson said, “I see Exhibit P6B. I see page 2 thereof. The consideration of the sum of N18,000,000.00 was rejected. They refused to collect the original bank draft. I sent a photocopy of the family. We did not send the original bank draft to the family”.

On why only photocopies of the draft were delivered to the family, PW1 at page 188 of the Record of Appeal, under evidence in chief by Jimoh Lasisi SAN, stated thus, “It is true that I did not deliver the original cheque to Dr. Layonu. I only delivered copies of the cheque to him. The reason is that it was agreed between me and Dr. Layonu. The agreement was to the effect that the 1st – 5th defendants should execute the deed of assignment, the plaintiff having executed its own part. Then the transaction will be completed and then we would forward the original cheques. This is normal in business transaction.”

PW1 still under cross examination by Dr. Layonu at page 191 stated, “I agree that the documents I took to Dr. Layonu’s firm on that day (03/05/02) were not the final documents because I still had to make some amendments such as dropping the name of a boy whom I had wanted brought in at least as a witness…, also an amendment that the sum of N18,000,000.00 was to be net.”

PW2 at page 209 of the Record of Appeal under cross examination by Chief Benson, stated thus:- “I will not be surprised that PW1 only sent a copy of the draft because I had asked him to be careful with the bank draft, since the family did not trust themselves.” Testifying further he said, “I could prepare a receipt on the basis of the copy of the draft but an exchange will only take place on the presentation of the draft. So I will not say that a copy of a bank draft is acceptable as payment.”

PW2 at the same page still under cross examination by Chief Benson stated: “I see Exhibit P7. I see the photocopy of the Zenith Bank draft of N18 Million. “Copy for sighting” is written across it.”

DW2, Mr. Nosiru Kayode Oduwole, the 4th defendant, at page 228 of the Record of Appeal, during cross examination by Chief Benson stated thus:- “As at the 4th of May, the position of the family was that the transaction should be concluded on 05/05/01. When we did not see PW1 on the 5th of May, my family got angry and decided to forget about dealing with the claimant.”

DW3, Mr. Michael Babatunde Onalaja stated under cross examination thus:- “l remember 05/05/01. Members of my family were present in Dr. Layonu’s office on that day, for the conclusion of the contract transition. The transaction was not concluded because the plaintiff did not show up. That is neither the company’s representative nor any other representative showed up on that date”.

The Court of Appeal held thus:- “It is surprising that a purchaser who initiated bank drafts towards payment would for some clever reasons withhold the original drafts and hand – over photocopies and insist that such serves as sufficient consideration, this is certainly far from it”.

Going back to the testimonies of DW1 under cross examination stated as follows:- “We were to meet on 5/5/01 at our office to complete the transaction to the deadline given in Exhibit D2. That day was Saturday and as early as 8 a.m I was in the office of my Principal, about one hour later the 1st – 5th defendants and the members of the family came in. We waited till 2pm. The plaintiff and its representatives did not turn up for the meeting and we heard nothing from them, the family was upset and they left in frustration saying they would not deal with the plaintiff anymore.”

DW2 in corroboration of the above evidence, during his evidence in chief, testified thus:- “On Saturday 5th May 2001, we brought down family members around 9.30am to Dr. Layonu’s office. We waited with him till 2 pm. When the elders complained of hunger, for CW1 to come. After having something, they waited again till about 3 pm. They eventually left in anger despite the entreaties from us and Dr. Layonu’s explanation. They instructed us to find another buyer and not to sell to CW1 who had caused them such inconvenience. They insisted that the sale should be to someone else though the plaintiff was owing 8 months’ rent.”

PW1 in a bid to deny receipt of Exhibit D2 i.e. (the last deadline given to the appellant by the 1st – 4th respondent) under cross examination by Dr. Layonu, testified on oath as follows:-
“I have never seen the letter dated 04/05/01 purportedly written to me. It is not all the time that I have to read a document before signing it or endorsing it. It depends on the circumstance.” Testifying further he see: “I see Exhibit P9 and the letter therein dated 10/01/01 from Layonu, Oyeleke, Okwudiafor to Ike Onyefulu & Co. I read the letter partially before I endorsed my signature thereon. I read up to the 3rd paragraph before I appended my signature thereto. I glanced through other paragraphs.”

The trial Court in accepting the evidence of the 1st – 4th respondent on the above issue, held thus, at page 299 line 12 of the record:- “l find the submission of the 1st – 5th defendants on this issue very well founded. I have commented on the demeanor of PW1. In contrast to his unreliable testimony DW2 was calm and forthright. His testimony was not shaken under cross examination. He gave a detailed description of the office of PW1 where he delivered the letter to him. Exhibit D2 is in line with the tenor of the whole transaction starting from Exhibit P3 where the 5th defendant implored the claimant to make progress. I therefore prefer the testimony of DW2 to that of PW1. I believe that he duly delivered Exhibit D2 to PW1. I also believe that in the circumstances of this case the notice given in Exhibit D2 was reasonable. I am persuaded by a consideration of Exhibits P3, D4 and D5 that time was of essence to the contract and that the Claimant was reasonably made aware of this. It did not fulfill its obligation within reasonable time or the deadline given therefore it is not entitled to an order of specific performance.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The learned trial judge was not impressed with the testimony of PW1 from his demeanor. The Court stated that the veracity of PW1’s evidence was successfully challenged as he showed he was shifty and appeared self-serving, lacking in consistency which bordered on a questionable integrity which was all the more disconcerting since he was a legal practitioner.

Those observations of the trial Court clearly came from its pride of place of watching the demeanour of the witness and in a position of deciding on the veracity of the testimonies and ascribing weight to them which only the trial Court was in a position to carry out. The Court below in the light of the sound evaluation and findings of the learned trial judge had no difficulty in keeping to its lane by not interfering with such findings when there was no justification for so doing.

The situation which has cumulated at this level to concurrent findings of facts of the two Lower Courts and it behoves this Court in the absence of perversity in those findings which were clearly within the purview of laid down principles of law not to disturb those concurrent findings of fact. I rely on Owei v Ighiwi (2005) 5 NWLR (Pt.917) 184; Wachukwu v Owunwanne (2011) 14 NWLR (Pt.1266) page 1; Ochiba v State (2011) 17 NWLR (Pt.1277) 663; Onuekwusi v RTC (2011) 6 NWLR (Pt.1243) 341; Nwaturuocha v State (2011) 6 NWLR (Pt.1242) 170; Dapianlong v Dariye (2007) Vol.8, MKSC 218.

Indeed, the facts of this case have been well cut out by the law guided by well set out principles. The action which came up to this appeal is based on a breach of contract upon which the appellant as plaintiff claims specific performance. It is at the risk of repetition to say that for the Court to accede to that claim, a valid contract must be on ground. In this instance, that is not the case as what transpired between the appellant on the one hand and the 1st – 4th respondents on the other hand fell far short of a valid contract, hence the Court cannot effect an order of specific performance. That was the firm finding of the two Courts below which this Court has no basis to upset. See Coker v Ajewole (1976) 9 – 10 SC; Ezenwa v Oko (2008) 3 NWLR (Pt.1075) 610 at 625; Unilorin v Akinola (2014) 12 NWLR (Pt.1422) 435 at 463; British Airways v Atoyebi (2014) 13 NWLR (Pt.1424) 253 at 294 & 303; Dong v Attorney General Adamawa State (2014) 6 NWLR (Pt.1404) 555 at 578 – 579.

The conclusion is that this appeal lacks merit and in the light of the well-reasoned lead judgment, I too dismiss it. I abide by the consequential orders made.

OLUKAYODE ARIWOOLA, J.S.C.: I had the opportunity of reading in draft the lead judgment of my learned brother, Abba Aji, JSC just delivered. I am in agreement with the reasoning therein and conclusion arrived thereat, that the appeal lacks merit and should be dismissed. I too will dismiss the appeal
Appeal dismissed.
I abide by the consequential orders including order on costs.

JOHN INYANG OKORO, J.S.C.: I had the privilege of reading in its draft form the very comprehensive lead judgment rendered by my learned brother, Uwani Musa Abba Aji, JSC, and I totally agree with him that this appeal has no merit.

I am of the view that the main issue in this appeal is as nominated by the Appellant in his issue one, to wit: “whether there was no valid and subsisting contract of sale of the property in dispute between the Appellant and the 1st—4th Respondents to transfer title to the Appellant”. Without mincing words, after a careful consideration of all the evidence placed before this Court, I answer the question in the negative.

It is trite that under the contract of sale of land, the ingredients to be looked out for are: (1) payment of the purchase price or agreed consideration (2) the transaction must be witnessed by witnesses, and (3) the actual handing over of the land to the purchaser in the presence of witnesses.
See the cases of Mbanefo v. Agbu (2014) 6 NWLR (Pt. 1403) at 238; Cole v. Folami (1956) SCNLR 180, Adesanya v. Aderonmu & Ors. (2000) 9 NWLR (pt 672) 370.

In this appeal, the appellant cannot say that a photocopy of the bank draft he forwarded to the Respondents was accepted. It therefore means that no consideration was furnished for the contract. Indeed, none of the ingredients listed above was present in the supposed contract between the Appellant and the respondents. Put differently, no valid contract exists between the Appellant and the Respondents to warrant an order of specific performance by the Court.

From all I have said above, I have found no reason to interfere with the concurrent decisions of the two lower Courts. I also dismiss this appeal for lacking in merit. I affirm the concurrent findings of the two lower Courts and abide by the consequential orders made in the lead judgment.
Appeal dismissed.

Appearances: