Lamidi Ogbo Fakoya V St. Pauls Church, Shagamu (1966)

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BRETT, J.S.C. 

This is an appeal against the judgment of the Western Region High Court granting specific performance of a contract for the sale of land, and directing the original appellant, Lamidi Ogbo Fakoya, to execute a conveyance of the land to the respondents. A stay of execution was refused, and Lamidi Ogbo Fakoya executed the conveyance while the appeal was pending, but after doing this and before the appeal was heard he died, and his brother, David Adeyemi Fakoya, was substituted for him as appellant. References to the appellant in this judgment mean the original appellant.

It was not in dispute that the appellant and two of his sisters agreed in writing to sell the land to the respondents, as being the property of their family, the Fakoya family, and received payment for it. The two sisters executed the conveyance, but the appellant refused to do so, and asserted that since agreeing to sell the land he had discovered for the first time that the land did not belong to the Fakoya family but to the whole of the Ogunlana Ogunekun family, of which the Fakoya family forms a part. The appellant was a man of over fifty, and the head of the Fakoya family, and the judge found it unbelievable that he had not known who the owners of the land were.

His two sisters gave evidence for the respondents and continued to assert that the land belonged to the Fakoya family; the judge accepted their evidence, and although the appellant’s version of the ownership was supported by witnesses from the Ogunlana Ogunekun family it was inherently so improbable as regards the state of his own knowledge that we cannot possibly say that the judge was wrong in rejecting it in toto. We find it unnecessary to spend any more time over the facts of the case and if the matter rested there the appeal might be dismissed out of hand.

There is, however, one ground of appeal which cannot be disposed of so easily. The writ of summons stated that the plaintiffs claimed “specific performance of a deed of conveyance in compliance with an agreement in writing dated the 6th day of June, 1959,” and paragraphs I and 2 of the Statement of Claim read as follows:-

“1. By an agreement in writing (hereinafter called “contract”) dated the 6th day of June, 1959, and made between the representatives of the plaintiffs of the one part and the defendant and two others of the other part, the defendant and two others, on behalf of themselves and their descendants did sell a piece or parcel of land, measuring 800 feet by 1200 feet to the plaintiffs, at the price of £350 (Three hundred and fifty pounds).

2. A certified true copy of the contract is hereto annexed and marked Exhibit A.”

The material part of the agreement reads-

“We hereby bound ourselves to execute a deed of conveyance in favour of the purchaser (St. Paul’s Church, Shagamu) at any time it is ready.”

Paragraphs 3 and 4 of the Statement of Defence answered paragraphs 1 and 2 of the Statement of Claim as follows-

“3. Save that it is admitted that the defendant, along with the two others, agreed in writing to sell a piece or parcel of land to the plaintifffor the price of £300, all the other allegations contained in paragraph 1 of the Statement of Claim are denied.

4. Save that it is admitted that “the contract” mentioned in paragraph 2 of the Statement of Claim was thumb-printed by the defendant, the defendant avers that the letter writer who made the contract falsely told the defendant and the two other co-vendors that the purchase price was £300, and not £350, as alleged on the purchase receipt.”

Nothing now turns on the amount of the purchase price, and the appellant had therefore admitted all the essential facts relied on by the respondents in support of their claim, so that although the plaintiffs opened at the trial it would appear that the burden of proof was on the defence. At all events, the agreement was produced without objection and specific performance of it was ordered.

It is now submitted for the first time that the respondents ought not to have been allowed to plead or prove the agreement, on the ground that it had not been registered under the Land Instruments Registration Law, and that section 16 of the Law provides that-